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Kealoha v. Totto

United States District Court, D. Hawaii

May 8, 2017

LOUIS M. KEALOHA; KATHERINE E. KEALOHA; KRISTINA KEALOHA, a minor child, by her next friend KATHERINE E. KEALOHA, Plaintiffs,
v.
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

          J. MICHAEL SEABRIGHT CHIEF UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Defendants 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”[1] 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.

         Upon de 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 Court.

         II. BACKGROUND

         A. State Court

         Plaintiffs 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 places:

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).

         On July 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.

         On December 30, 2016, Totto filed a Notice of Removal (“Notice”) pursuant to 28 U.S.C. §§ 1441(a) and 1446 because of ...


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