United States District Court, D. Hawaii
AURALEE J. PALMEIRA and ADELE PALMEIRA-SHINN, Plaintiffs,
CIT BANK, N.A., formerly known as ONEWEST BANK, FSB; FEDERAL HOME LOAN MORTGAGE CORPORATION; KALEI B. COLRIDGE; and DOE DEFENDANTS 1-50, Defendants.
ORDER ADOPTING AS MODIFIED THE FINDINGS AND
RECOMMENDATION TO GRANT PLAINTIFFS' MOTION FOR AN ORDER
C. Kay Sr. United States District Judge
reasons set forth below, the Court adopts as modified the
Findings and Recommendation to Grant Plaintiffs' Motion
for an Order of Remand, ECF No. 26, issued by Magistrate
Richard L. Puglisi on August 10, 2017.
30, 2016, Plaintiffs Auralee J. Palmeira and Adele
Palmeira-Shinn (“Plaintiffs”) filed this action
in the Circuit Court of the Fifth Circuit, State of Hawaii
(“State Court Action.”) See Notice of
Removal ¶ 1, ECF No. 1. On September 27, 2016,
Plaintiffs filed a First Amended Complaint in the State Court
Action. Id. ¶ 2. CIT Bank, f/k/a OneWest Bank,
N.A. f/k/a OneWest Bank, FSB, as well as Federal Home Loan
Mortgage Corp., (collectively, the “Mortgagee
Defendants”) filed their answer to the First Amended
Complaint on October 27, 2016. Id. ¶ 3.
Defendant Kalei B. Colridge was served, through her attorney,
on May 23, 2017. Id. ¶ 15.
Colridge filed her Notice of Removal based on diversity
jurisdiction on June 9, 2017, 17 days after being served.
See id. ¶¶ 13, 15. In the Notice,
Defendant Colridge alleges that the Mortgagee Defendants
answered the First Amended Complaint in 2016. Id.
¶ 3. However, the Notice of Removal does not indicate
that the Mortgagee Defendants consented to or joined in the
removal. See generally id. On June 26, 2017, the
Mortgagee Defendants filed a notice consenting to and joining
in the Notice of Removal. ECF No. 7 (“Consent and
Joinder”). In the Consent and Joinder, the Mortgagee
Defendants state that Defendant Colridge's attorney
telephonically obtained their consent to remove the case on
June 7, 2017, and that prior to that conversation the
Mortgagee Defendants were not aware that complete diversity
existed. Id. at 3; Declaration of Judy A. Tanaka
¶¶ 4-5, ECF No. 7-1 (“Tanaka Decl.”).
On June 27, 2017, Defendant Colridge filed a
“supplement” to her notice of removal regarding
these same facts and arguing that the Mortgagee Defendants
timely requested removal through their Consent and Joinder.
ECF No. 11 ¶¶ 4-6.
filed their motion to remand to state court on July 7, 2017.
ECF No. 21. Defendant Colridge filed her opposition on July
21, 2017, to which the Mortgagee Defendants filed a
substantive joinder. ECF Nos. 23-24. Plaintiffs filed their
reply on August 4, 2017. ECF No. 25. On August 10, 2017,
Judge Puglisi issued Findings and Recommendation to Grant
Plaintiffs' Motion for an Order of Remand. ECF No. 26
F&R, Judge Puglisi found that the Notice of Removal was
procedurally defective because it was silent as to the
Mortgagee Defendants' consent, even though consent had
apparently been previously obtained. F&R at 5-7. While
recognizing conflicting authority, Judge Puglisi also found
that any defects in the Notice had to be cured within the
30-day removal period, but that the Consent and Joinder and
the supplement had been filed outside of that window.
Id. at 8-10. Finally, Judge Puglisi also rejected
the argument that removal was timely because Defendant
Colridge's Notice of Removal was the first paper from
which the Mortgagee Defendants could ascertain the case was
removable since the Mortgagee Defendants did not thereafter
file a notice of removal. Id. at 10-11.
August 24, 2017, Defendant Colridge filed objections to Judge
Puglisi's F&R (“Obj.”), to which the
Mortgagee Defendants filed a substantive joinder. ECF Nos.
27-28. Plaintiffs did not file a response to the objections.
Court treats a motion to remand as a dispositive motion,
requiring the issuance of a findings and recommendation by
the magistrate judge.” PSC Indus. Outsourcing, LP
v. Burlington Ins. Co., Civ. No. 10-00751, ACK-BMK, 2011
WL 1793333, at *3 (D. Haw. May 10, 2011) (citing Keown v.
Tudor Ins. Co., 621 F.Supp.2d 1025, 1029 (D. Haw.
party objects to a magistrate judge's findings or
recommendation, 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)(C); see also United States v.
Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en
banc) (“[T]he district court must review the magistrate
judge's findings and recommendations de novo if
objection is made, but not otherwise.” (emphasis
de novo standard, a district 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).
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, 618
(9th Cir. 1989).
within the district court's discretion to “receive
further evidence, recall witnesses, or recommit the matter to
the magistrate judge with instructions.” Local Rule
74.2. Pursuant to Local Rule 74.2, this Court “may
consider the record developed before the magistrate judge,