United States District Court, D. Hawaii
AMENDED ORDER ADOPTING MAGISTRATE JUDGE'S
FINDINGS AND RECOMMENDATION
E. Kobayashi United States District Judge.
January 27, 2017, the magistrate judge issued his Findings
and Recommendation to Remand Action to State Court
(“F&R”). [Dkt. no. 15.] On February 10, 2017,
pro se Defendant Leonard G. Horowitz
(“Defendant”) filed document titled “Motion
for Declaratory Judgment as Alternative to Remand.”
[Dkt. no. 18.] This Court CONSTRUES Defendant's filing as
his objections to the F&R
(“Objections”). The Court has considered the
F&R and Objections as non-hearing matters pursuant to
Rule LR7.2(e) of the Local Rules of Practice of the United
States District Court for the District of Hawai`i
(“Local Rules”). After careful consideration of
the F&R, Objections, and the relevant legal authority,
Defendant's Objections are HEREBY DENIED, and the F&R
is ADOPTED as the opinion and order of this Court, for the
reasons set forth below.
Court reviews a magistrate judge's findings and
recommendations under the following standard:
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) (“[T]he district judge must review the magistrate
judge's findings and recommendations de novo if objection
is made, but not otherwise.”).
Under a 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). The district court need not hold a
de novo hearing; however, it is the court's obligation to
arrive at its own independent conclusion about those portions
of the magistrate judge's findings or recommendation to
which a party objects. United States v. Remsing, 874
F.2d 614, 616 (9th Cir. 1989).
Muegge v. Aqua Hotels & Resorts, Inc., Civil
09-00614 LEK-BMK, 2015 WL 4041313, at *2 (D. Hawai`i June 30,
2015) (alteration in Muegge) (some citations
noted in the F&R, the operative pleading in this case is
a Petition to Expunge Documents Recorded in the Bureau of
Conveyances of the State of Hawaii (“Petition”),
which Plaintiff Jason Hester (“Plaintiff”) filed
in the State of Hawai`i First Circuit Court on July 26,
2016. [Removal of Case Civ. No. 16-1-1442-07 VLC
(“Notice of Removal”), filed 1/11/17 (dkt. no.
1), Exh. 1 (Petition).] In light of Defendant's
Objections, this Court must review the issue of whether the
case should be remanded de novo. See Reyna-Tapia,
328 F.3d at 1121.
cites three cases as support for his position that there is
federal jurisdiction over the instant case: Ocwen Loan
Servicing, LLC v. Lum, Civil No. 13-00497 LEK-KSC, 2015
WL 1808955 (D. Hawai`i Apr. 20, 2015); The Club at
Hokuli`a, Inc. v. American Motorists Insurance Co.,
Civil No. 10-00241 JMS-LEK, 2010 WL 3465278 (D. Hawai`i Sept.
3, 2010), report and recommendation adopted sub
nom., 2010 WL 4386741 (Oct. 26, 2010); and Federal
Home Loan Mortgage Corp. v. Griep, CIVIL 15-00003
LEK-KSC, 2015 WL 7274034 (D. Hawai`i Nov. 18, 2015).
[Objections at 3.] Ocwen Loan does not support
Defendant's position because there was diversity
jurisdiction in that case. See Ocwen Loan, 2015 WL
1808955, at *1. In the instant case, diversity jurisdiction
does not exist because both Plaintiff and Defendant are
Hawai`i residents. See Petition at ¶¶ 2-3.
Hokuli`a does not support Defendant's position
because that case was remanded to the state court because one
of the defendants did not consent to the removal.
See 2010 WL 3465278, at *14. Federal Home
Loan does not support Defendant's position because
“[t]he United States District Courts have original
jurisdiction over all civil actions which Freddie Mac is a
party pursuant to 12 U.S.C. § 1452(f).”
[Federal Home Loan, Complaint for: (1) Cancellation
of Written Instrument; (2) Slander of Title; and (3) Quiet
Title, filed 1/6/15 (dkt. no. 1), at ¶ 4.] Thus, both
Hokuli`a and Federal Home Loan are
factually distinguishable from this case. This Court has
reviewed the Petition anew, without considering the
magistrate judge's F&R, see Freeman, 457
F.3d at 1004, and this Court CONCLUDES that the Petition does
not present a federal question.
Objections appear to suggest that there is federal question
jurisdiction in the instant case because he is entitled to a
declaratory judgment pursuant to 28 U.S.C. § 2201.
However, the existence of removal jurisdiction is generally
determined at the time the notice of removal is filed,
irrespective of subsequent events. See, e.g.,
Allen v. F.D.I.C., 710 F.3d 978, 984 (9th Cir.
2013). Thus, even if Defendant intends to bring a
counterclaim for declaratory relief against Plaintiff, and
even if the counterclaim raises a federal question,
Defendant's anticipated counterclaim cannot create
federal jurisdiction. See Vaden v. Discover Bank,
559 U.S. 49, 60 (2009). This Court emphasizes that this Order
does not prevent Defendant from attempting to bring a
counterclaim for a declaratory judgment in state court after
de novo review, this Court CONCLUDES that federal
jurisdiction did not exist at the time Defendant filed his
Notice of Removal. This case must therefore be REMANDED to
the state court.
basis of the foregoing, Defendant's Motion for
Declaratory Judgment as Alternative to Remand, filed February
10, 2017 - which this Court CONSTRUES as his objections to
the magistrate judge's January 27, 2017 Findings and
Recommendation to Remand Action to State Court - is HEREBY
DENIED. This Court HEREBY ADOPTS the ...