United States District Court, D. Hawaii
FAUSTINO FABRO, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Plaintiff,
AQUA-ASTON HOSPITALITY, LLC, DOE DEFENDANTS 1-50, Defendants.
ORDER AFFIRMING THE NOVEMBER 3, 2016 FINDINGS AND
RECOMMENDATION TO GRANT PLAINTIFF'S MOTION FOR REMAND AND
DENY PLAINTIFF'S REQUEST FOR ATTORNEYS' FEES AND
DERRICK K. WATSON United States District
Faustino Fabro filed this action, on behalf of himself and an
unidentified class of former co-workers, in Hawai‘i
state court against his former employer, Defendant Aqua-Aston
Hospitality, LLC, fka Aston Hotels & Resorts,
LLC, dba Aston Waikiki Beach Hotel, and Doe
Defendants 1-50 (“Aqua-Aston”). See
Compl., CV 16-1-1139-06, ¶¶ 5-6, Dkt. No. 8-4
(identifying the suit as a class action where the class would
include Fabro and unidentified “past and present
housekeeping employees of the Aston Waikiki Beach
Hotel”). Aqua-Aston subsequently removed the action to
this Court (Dkt. Nos. 1, 7), and Fabro filed a motion for
remand (Dkt. No. 10). On November 3, 2016, the Magistrate
Judge entered his Findings and Recommendation to Grant
Plaintiff's Motion for Remand and Deny Plaintiff's
Request for Attorneys' Fee and Costs
(“F&R”). Dkt. No. 15. Before the Court are
Aqua-Aston's objections to portions of the F&R. Dkt.
No. 17. For the reasons stated below, the Court ADOPTS the
F&R, GRANTS Fabro's Motion for Remand, and DENIES
Fabro's request for attorneys' fees and costs.
is a former “houseman” and “housekeeping
inspector” at Aqua-Aston's Waikiki hotel.
See Compl. ¶¶ 5, 13, Dkt. No. 8-4. On June
15, 2016, Fabro brought an action against Aqua-Aston in the
Circuit Court for the First Circuit, State of Hawai‘i
alleging, inter alia, that on “multiple
occasions” since June 13, 2010, Aqua-Aston had (i)
instructed Fabro and others “to report to work and to
commence working at a certain time but not to clock in until
after they had already commenced working, ” and (ii)
altered Fabro's and others' time records, “and
thereby avoided compensating said employees all wages due for
the time worked as well as overtime compensation.”
Compl. ¶¶ 16-17. As such, Fabro claims, Aqua-Aston
willfully and deliberately violated Hawai‘i Revised
Statutes (“HRS”) Sections 387-3 (maximum hours),
387-6 (employer's records), and 388-6 (withholding of
wages). Compl. ¶¶ 18-19, 22-23. Aqua-Aston answered
Fabro's complaint and filed a motion for summary judgment
(“MSJ”) on July 1, 2016. Def.'s Answer to
Compl., Dkt. No. 8-6; MSJ, Dkt. No. 8-7.
MSJ, Aqua-Aston characterized the action as a suit for
allegedly failing to pay wages and expenses required by the
Fair Labor Standards Act of 1938 (“FLSA”), 29
U.S.C. §§ 201 et seq., as amended.
Aqua-Aston also argued that Fabro and the proposed class are
excluded from HRS Chapter 387's definition of
“employees” because the FLSA prescribes the
maximum hours that these individuals may work during any
workweek, which is forty hours under both the FLSA and the
HRS. See F&R at 4, Dkt. No. 15 (citing MSJ at
4). Fabro opposed Aqua-Aston's MSJ in an August 9, 2016
memorandum in opposition (“MIO”). Pl.'s Mem.
in Opp'n to Def.'s MSJ, Dkt. No. 8-12 [hereinafter
MIO to MSJ]. In that memorandum, Fabro questioned
Aqua-Aston's threshold contention that it is an
“enterprise engaged in commerce or in the production of
goods for commerce” under the FLSA and argued that the
FLSA is not the exclusive remedy for the alleged wage
violations. MIO to MSJ at 19-20 (citing MSJ at 4-8; 29 U.S.C.
§§ 203(r)(1), (s)(1)(A)). Aqua-Aston filed its
reply in support of the MSJ on August 12, 2016. Reply, Dkt.
No. 8-15. The Circuit Court subsequently denied
Aqua-Aston's MSJ during an August 17, 2016 hearing.
See Am. Notice of Removal, Ex. C, at 13, Dkt. No.
7-3 [hereinafter 8/17/16 Transcript].
removed Fabro's action to federal court on August 23,
2016 (Dkt. No. 1) and filed an Amended Notice of Removal on
August 31, 2016 (Dkt. No. 7). Aqua-Aston's removal
petition is based on its assertion that this case requires
the evaluation of federal questions, including the statutory
construction of the FLSA. Am. Notice of Removal ¶ 5,
Dkt. No. 7 (citing 28 U.S.C. § 1331)). Aqua-Aston argues
that because it qualifies as an “enterprise engaged in
commerce or in the production of goods for commerce”
under the FLSA, Fabro is barred from seeking relief under HRS
Chapter 387, and any basis for recovery would be grounded in
federal law. Am. Notice of Removal ¶ 3 (citing 29 U.S.C.
§ 203(s)(1)(A); HRS § 387-1(12)).
September 21, 2016, Fabro filed his Motion to Remand to State
Court (Dkt. No. 10) and argued that removal was improper
under the “well-pleaded complaint rule” because
no federal question appeared on the face of Fabro's
complaint. See Mem. in Supp. of Mot. at 8, Dkt. No.
10-1 [hereinafter Remand Mem.]. To that end, Fabro argued
that his MIO to MSJ did not “raise” the federal,
FLSA issue either by arguing that Aqua-Aston is not an
interstate enterprise within the meaning of the FLSA, or by
citing to an unpublished decision by this
Court. Remand Mem. at 6-7. Aqua-Aston filed an
MIO to Fabro's Motion to Remand on October 5, 2016 (Dkt.
No. 12), and Fabro replied on October 18, 2016 (Dkt. No. 13).
November 3, 2016, the Magistrate Judge entered the F&R
(Dkt. No. 15), recommending that Fabro's Motion for
Remand be granted and that Fabro's included request for
attorneys' fees and costs be denied. F&R at 2. Before
the Court are Aqua-Aston's objections to portions of the
F&R. See Def.'s Obj. to F&R, Dkt. No.
17. Fabro did not file a response to these objections. For
the reasons stated below, the Court ADOPTS the F&R,
GRANTS Fabro's Motion for Remand, and DENIES Fabro's
request for attorneys' fees and costs.
motion to remand is a case-dispositive motion that requires
the issuance of findings and recommendations if initially
reviewed by a magistrate judge. See Flam v. Flam,
788 F.3d 1043, 1047 (9th Cir. 2015) (citing Williams v.
Beemiller, Inc., 527 F.3d 259, 266 (2d Cir. 2008));
Keown v. Tudor Ins. Co., 621 F.Supp.2d 1025, 1029
(D. Haw. 2008). When a party objects to a magistrate
judge's findings or recommendations, the district court
must review de novo those portions to which the objections
are made and “may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1); see
also United States v. Raddatz, 447 U.S. 667, 673 (1980);
United States v. Reyna-Tapia, 328 F.3d 1114, 1121
(9th Cir. 2003) (en banc).
de novo standard, this court reviews “the matter anew,
the same as if it had not been heard before, and as if no
decision previously had been rendered.” Freeman v.
DirecTV, Inc., 457 F.3d 1001, 1004 (9th Cir. 2006);
United States v. Silverman, 861 F.2d 571, 576 (9th
Cir. 1988). Although the district court need not hold a de
novo hearing, it is the court's obligation to arrive at
its own independent conclusion about those portions of the
magistrate judge's findings or recommendations to which a
party objects. United States v. Remsing, 874 F.2d
614, 618 (9th Cir. 1989).
Fabro's Complaint is based upon Hawai‘i state law
and does not allege any federal cause of action, this Court
lacks subject matter jurisdiction over the dispute.
Therefore, Aqua Aston's removal to this Court was
improper, and its objections to the F&R are overruled.
of an action from state to federal court is proper if the
federal court would have had original jurisdiction over the
action. 28 U.S.C. § 1441(a). 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. Aqua-Aston
relies solely on federal question jurisdiction under 28
U.S.C. § 1331 as the basis for removal in this case. Am.
Notice of Removal ¶ 7. The issue of whether federal
question jurisdiction exists is governed by the
“well-pleaded complaint rule, ” which provides
that federal question jurisdiction may only be invoked when a
federal question is presented on the face of a
plaintiff's properly pleaded complaint. Caterpillar
Inc. v. Williams, 482 U.S. 386, 392 (1987). Generally,
an action is deemed to “arise under” federal law
where it is a “federal law [that] creates the cause of
action” that the plaintiff has asserted. Gunn v.
Minton, 133 S.Ct. 1059, 1064 (2013). Actions asserting
state-law claims may also be deemed to “arise
under” federal law for purposes of federal question
jurisdiction if the asserted state law: (1)
“necessarily raise[s] a stated federal issue, ...