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Barglowski v. Nealco International LLC

United States District Court, D. Hawaii

September 20, 2016



          Leslie E. Kobayashi United States District Judge.

         Before the Court is Plaintiff Jennifer Barglowski's (“Plaintiff”) 28 U.S.C. 1447(c) Verified Motion to Remand to Second Circuit Court, State of Hawaii (“Motion”), filed on May 31, 2016. [Dkt. no. 14.] Defendant Jeffery Bartunek (“Bartunek”) filed a memorandum in opposition on July 7, 2016, and Defendants Nealco International LLC doing business as Scuba Shack (“Scuba Shack”), Charles C. Neal (“Neal”), and Molokini Divers, Inc. (“Molokini”) filed a joinder to Bartunek's (all collectively “Defendants”) memorandum in opposition the same day (“Joinder”). [Dkt. nos. 22, 23.] Plaintiff filed a reply on July 13, 2016. [Dkt. no. 24.] This matter came on for hearing on August 1, 2016. After careful consideration of the Motion, supporting and opposing memoranda, and the arguments of counsel, Plaintiff's Motion is HEREBY GRANTED IN PART AND DENIED IN PART for the reasons set forth below.


         Plaintiff filed her First Amended Complaint in the Circuit Court of the Second Circuit, State of Hawai`i, on April 12, 2016, and Bartunek removed the instant case to this district court on May 2, 2016. [Notice of Removal, filed 5/2/16 (dkt. no. 1), Exh. A (First Amended Complaint).]

         The First Amended Complaint states that, on July 20, 2015, Defendants took Plaintiff and others on a snorkel and dive tour to Molokini Island, off the coast of Maui. [First Amended Complaint at ¶¶ 16-17.] Plaintiff alleges that Defendants “failed to adequately monitor then foreseeable and/or existing weather and ocean conditions” and exposed Plaintiff and the other divers to an “unreasonable risk of harm.” [Id. at ¶ 19.] In addition, Plaintiff states that Defendants “failed to adequately monitor” the divers, and did not adhere to the “applicable standards of care, training, custom and procedure, required by”: the circumstances; the United States Coast Guard; the State of Hawai`i, Department of Land and Natural Resources, Division of Boating and Ocean Recreation; Hawai`i Administrative Rules, Title 13; and Plaintiff's expectations. [Id. at ¶¶ 20-21.] Plaintiff argues that Defendants acted with “reckless disregard” for her rights, and that they were “grossly negligent.” [Id. at ¶ 25.] As a result of Defendants' actions, Plaintiff alleges that she “suffered severe and permanent physical injury and suffering, mental distress and impairment, psychological damage, loss of wage [sic], impairment of earning capacity, diminution of enjoyment of life's activities, expenses incurred for treatment of injuries, ” and other damages. [Id. at ¶ 26.] Plaintiff seeks: damages; attorneys' fees and costs; prejudgment and post-judgment interest; and any further relief to which she is entitled. [Id. at pg. 7.]

         On May 5, 2016, Bartunek filed a Supplemental Statement in Support of Notice of Removal Filed on May 2, 2016 (“Supplemental Statement”). [Dkt. no. 6.] On June 24, 2016, Neal, Molokini, and Scuba Shack filed a Consent to Removal (“Consent”), and joined in Bartunek's Notice of Removal and the Supplemental Statement. [Dkt. no. 20.] Plaintiff filed a document titled “Opposition to Consent to Removal by Defendants Charles C. Neal, Molokini Divers, Inc., and Nealco International, LLC; Request to Strike Consent” on July 1, 2016. [Dkt. no. 21.]


         Federal district courts “have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Federal district courts also have jurisdiction:

(a) . . . where the matter in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs, and is between -
(1) citizens of different States;
(2) citizens of a State and citizens or subjects of a foreign state, except that the district courts shall not have original jurisdiction under this subsection of an action between citizens of a State and citizens or subjects of a foreign state who are lawfully admitted for permanent residence in the United States and are domiciled in the same State;
(3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and
(4) a foreign state, defined in section 1603(a) of this title, as plaintiff and citizens of a State or of different States.

28 U.S.C. § 1332.

         28 U.S.C. § 1441 provides a mechanism through which defendants may remove a case filed in state court to federal district court, if the court would otherwise have jurisdiction:

(a) Generally. - Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.
(b) Removal based on diversity of citizenship. -
(1) In determining whether a civil action is removable on the basis of the jurisdiction under section 1332(a) of this title, the citizenship of defendants sued under fictitious names shall be disregarded.
(2) A civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.

28 U.S.C. § 1446(b)(2)(A) states that “[w]hen a civil action is removed solely under section 1441(a), all defendants who have been properly joined and served must join in or consent to the removal of the action.”

         Alternatively, 28 U.S.C. § 1447 provides a mechanism for remanding a case back to state court if a party wrongfully or improperly removes a case. It states, in pertinent part:

(c) A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal. A certified copy of the order of remand shall be mailed by the clerk to the clerk of the State court. The State court may thereupon proceed with such case.
This district court has stated:
“Removal and subject matter jurisdiction statutes are ‘strictly construed, ' and a ‘defendant seeking removal has the burden to establish that removal is proper and any doubt is resolved against removability.'” Hawaii ex rel. Louie v. HSBC Bank Nev., N.A., 761 F.3d 1027, 1034 (9th Cir. 2014) (quoting Luther v. Countrywide Home Loans Servicing LP, 533 F.3d 1031, 1034 (9th Cir. 2008)). Thus, “‘[i]t is to be presumed that a cause lies outside [the] limited jurisdiction [of the federal courts] and the burden of establishing the contrary rests upon the party asserting jurisdiction.'” Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009) (quoting Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 684 (9th Cir. 2006)) (alterations in original). This “‘strong presumption against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper, ' and that the court resolves all ambiguity in favor of remand to state court.” Id. (quoting Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (per curiam)).

U.S. Bank, Nat'l Ass'n v. Mizukami, CIVIL NO. 15-00523 JMS-BMK, 2016 WL 632195, at *2 (D. Hawai`i Feb. 17, 2016).


         I. Request for Joinder

         Rule 7.9 of the Local Rules of Practice for the United States District Court for the District of Hawai`i states, in pertinent part:

Except with leave of court based on good cause, any substantive joinder in a motion or opposition must be filed and served within (7) days of the filing of the motion or opposition joined in. “Substantive joinder” means a joinder based on a memorandum supplementing the motion or opposition joined in. If a party seeks the same relief sought by the movant for himself, herself, or itself, the joinder shall clearly state that it seeks such relief so that it is clear that the joinder does not simply seek relief for the original movant. A joinder of simple agreement may be field at any time. A separate opposition or reply complying with LR7.5 may be filed in response to a substantive joinder in a motion or opposition, respectively. No substantive joinder in a reply may be filed; a party that has joined in a motion may file its own reply (as opposed to a joinder in the movant's reply) by the reply deadline only if the opposition has addressed matters unique to that joining party. Joinders in motions must specifically identify the pending motion by docket number to which the joinder applies.

         The Joinder at issue does not include a memorandum. The Joinder is therefore CONSTRUED as a joinder of ...

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