United States District Court, D. Hawaii
LOUIS M. KEALOHA; KATHERINE E. KEALOHA; KRISTINA KEALOHA, a minor child, by her next friend KATHERINE E. KEALOHA, Plaintiffs,
CHARLES W. TOTTO, individually and as Executive Director and Legal Counsel of the Honolulu Ethics Commission; LETHA A.S. DECAIRES, individually and as investigator for the Honolulu Ethics Commission; HONOLULU ETHICS COMMISSION; THE CITY AND COUNTY OF HONOLULU, Defendants.
ORDER ADOPTING FINDINGS AND RECOMMENDATION, AND
REMANDING ACTION TO THE CIRCUIT COURT OF THE FIRST CIRCUIT,
STATE OF HAWAII
MICHAEL SEABRIGHT CHIEF UNITED STATES DISTRICT JUDGE.
Charles Totto (“Totto”), Letha DeCaires
(“DeCaires”), Honolulu Ethics Commission
(“HEC”), and the City and County of Honolulu (the
“City”) (collectively, “Defendants”)
object under 28 U.S.C. § 636(b)(1) and Local Rule 72.4
to a March 13, 2017 Findings and Recommendation of Magistrate
Judge Kevin S.C. Chang to Grant in Part and Deny in Part
Plaintiffs' Motion to Remand, ECF No. 39 (the
“March 13, 2017 F&R”). Def. Totto's Obj.,
ECF No. 40; Def. DeCaires' Obj., ECF No. 41. The March
13, 2017 F&R recommended that the court remand this
action to the Circuit Court of the First Circuit, State of
Hawaii (“State Court”) because the removal was
untimely. It determined that Plaintiffs' presentation of
claims for violations of Plaintiffs'
“Garrity rights” sufficiently triggered 28
U.S.C. § 1446(b), which “required Defendants to
remove the action within 30 days after the service of the
Complaint, ” and Defendants failed to meet this 30-day
window. March 13, 2017 F&R, at 15.
novo review, the court agrees that the Garrity
claims put Defendants on notice that the case was removable.
Accordingly, the court OVERRULES the objections, ADOPTS the
March 13, 2017 F&R, and REMANDS the action to State
Louis Kealoha, Katherine Kealoha, and Kristina Kealoha
(collectively, “Plaintiffs”) filed their
Complaint in State Court on June 17, 2016, and served
Defendants on June 20, 2016. Compl. at 1, ECF No. 1-2. The
Complaint is not a model of clarity, spanning forty-three
pages without enumerating specific causes of action.
Id. However, it does assert violations of
Plaintiffs' Garrity rights in three separate
80. In her unlawful zeal to create any ethical violation
whether real or manufactured, and as evidence of her conflict
of interest and improper motives, and with the full approval
of and ratification by Totto, DeCaires violated the rights of
HPD officers, witnesses and the plaintiffs, provided false
and defamatory information to witnesses and others, violated
Garrity rights of witnesses and plaintiffs, violated
the laws and procedures of the Ethics Commission, shared
confidential as well as fabricated information with others,
and improperly caused the adult plaintiffs to be involved in
other proceedings and investigations, all while continuing to
benefit from the continued renewal of her 89 day contracts.
99. . . . [I]n the course of these illegal investigations:
l) Totto and/or DeCaires deliberately, improperly and
illegally shared with other state and law enforcement
agencies information provided plaintiffs, by witnesses, by
HPD officers, and by other County employees, in violation of
their Garrity and other rights. The violations were so
systematic and egregious that, in an unprecedented move, the
State Of Hawaii Organization of Police Officers
(“SHOPO”) filed a formal union grievance, stating
that HPD officers were being compelled to appear before the
Ethics Commission “to answer questions without being
informed of the allegations made against them or being
afforded the opportunity to view the complaint, ” and
were “not being afforded any Garrity Rights prior to
being compelled to answer questions.” . . .
m) Totto and/or DeCaires deliberately, improperly and
illegally shared with third parties, including the attorney
for Gerard Puana, information provided plaintiffs, by
witnesses, by HPD officers, and by other County employees, in
violation of their Garrity and other rights[.]
Compl. ¶¶ 80, 99(1), 99(m).
11, 2016, Defendants filed a motion for more definite
statement and motion to strike. ECF Nos. 15-10, 15-22, 15-24.
On November 21, 2016, the State Court granted the motion for
more definite statement (“MDS”), directing
Plaintiffs to file a MDS by December 16, 2016, enumerating
specific claims against specific Defendants. ECF No. 1-3.
Plaintiffs filed their MDS on December 20, 2016, which
included a claim for violation of Plaintiffs' civil
rights under 42 U.S.C. § 1983. ECF No. 1-5, at 3-4.
December 30, 2016, Totto filed a Notice of Removal
(“Notice”) pursuant to 28 U.S.C. §§
1441(a) and 1446 because of ...