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Lionel Lima, Jr., and Barbara-Ann v. Deutsche Bank National Trust Company; the Law Office of David B.

March 29, 2013

LIONEL LIMA, JR., AND BARBARA-ANN DELIZO-LIMA; AND CALVIN JOHN KIRBY, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY
SITUATED,
PLAINTIFFS,
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY; THE LAW OFFICE OF DAVID B. ROSEN, A HAWAII PROFESSIONAL CORPORATION; DAVID B. ROSEN, INDIVIDUALLY; ET AL., DEFENDANTS.
EVELYN JANE GIBO, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
U.S. NATIONAL BANK ASSOCIATION, ALSO KNOWN AS U.S. BANK N.A., A NATIONAL BANKING ASSOCIATION; THE LAW OFFICE OF DAVID B. ROSEN, A HAWAII PROFESSIONAL CORPORATION; DAVID B. ROSEN, INDIVIDUALLY; ET AL., DEFENDANTS.



The opinion of the court was delivered by: Susan Oki Mollway Chief United States District Judge

ORDER ADOPTING THE MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATION TO DENY PLAINTIFFS' MOTION FOR AN ORDER OF REMAND

I. INTRODUCTION.

Before this court are appeals in two cases that, while not consolidated, raise nearly identical issues. This court therefore considers the appeals together, in the interest of efficiency.

The first of the two cases involves a lawsuit against Defendants Deutsche Bank, The Law Office of David B. Rosen, and David B. Rosen by Plaintiffs Lionel Lima, Jr., Barbara-Ann Delizo-Lima, and Calvin Jon Kirby II, individually and on behalf of all others similarly situated.

The second of the two cases involves a lawsuit against Defendants U.S. Bank, The Law Office of David B. Rosen, and David

B. Rosen by Plaintiff Evelyn Jane Gibo, individually and on behalf of all others similarly situated.

In each case, the Magistrate Judge was presented with a remand motion. In each case, the Magistrate Judge issued his Findings and Recommendation to Deny Plaintiffs' Motion for an Order of Remand ("F&R"). The F&Rs are nearly identical. The Limas and Gibo (collectively, "Plaintiffs") object to the F&Rs. See Lima Obj., ECF No. 57; Gibo Obj., ECF No. 74. After reviewing Plaintiffs' Objections, the court adopts the Magistrate Judge's recommendations that Plaintiffs' remand motions be denied.

II. STANDARD OF REVIEW.

The court reviews de novo those portions of an F&R to which an objection is made. 28 U.S.C. § 636(b)(1); Fed. R.

Civ.P. 72(b); Local Rule 74.2. The district court may accept those portions of the F&R that are not objected to if it is satisfied there is no clear error on the face of the record. Stow v. Murashige, 288 F. Supp. 2d 1122, 1127 (D. Haw. 2003).

III. ADOPTION OF "BACKGROUND" SECTION AND SUMMARY OF CAFA PROVISIONS.

Plaintiffs state no objection to the "Background"

section of the F&Rs (pages 2 to 5 of the F&R in the Lima case and pages 2 to 5 in the Gibo case), which summarizes facts pertinent to this remand issue. Similarly, while Plaintiffs object to the manner in which the F&Rs analyze and apply the Class Action Fairness Act of 2005 ("CAFA"), 28 U.S.C. § 1332(d), to the present cases, Plaintiffs raise no objection to the summary of CAFA provisions in the F&Rs (pages 6 to 11 of the F&R in the Lima case and pages 6 to 12 in the Gibo case). This court, having reviewed these sections to which no objection has been made, adopts the two sections.

IV. ANALYSIS.

A. This Court Has Diversity ...


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