United States District Court, D. Hawaii
AND RECOMMENDATION TO DENY PLAINTIFF'S MOTIONS TO REMAND
OR IN THE ALTERNATIVE MOTION FOR SUMMARY JUDGMENT FOR FAILURE
TO RESPOND OR IN THE ALTERNATIVE TO COMPEL RESPONSES TO
INTERROGATORIES AND FOR SANCTIONS FOR WASTING THE COURT'S
AND PLAINTIFF'S TIME AND MONEY 
Richard L. Puglisi, United States Magistrate Judge.
proceeding pro se, filed a Motion to Remand or in the
Alternative Motion for Summary Judgment for Failure to
Respond or in the Alternative to Compel Responses to
Interrogatories and for Sanctions for Wasting the Court's
and Plaintiff's Time and Money, filed on November 17,
2017 (“Motion”). ECF No. 24. Defendant Microsoft
Corporation filed its Opposition to the Motion on November
30, 2017. ECF No. 68. Defendants Barry A. Sullivan, Nuance
Communications, Salesforce.com Inc., Craig Weissman, and
Chris Fry filed Joinders in the Opposition. See ECF
Nos. 69, 70, 71, 72. Plaintiff filed his Reply on December 8,
2017. ECF No. 73. The Court found this matter suitable for
disposition without a hearing pursuant to Rule 7.2(d) of the
Local Rules of Practice of the United States District Court
for the District of Hawaii. ECF No. 28. After carefully
reviewing the submissions of the parties and the relevant
legal authority, the Court FINDS that this case was properly
removed and RECOMMENDS that the district court DENY
together with another individual, developed a programable
theory of syntax in the early 1990s. ECF No. 1-5 ¶¶
22-23. In 1995, Plaintiff started a company, Ergo, to develop
syntax software programs for patent. Id. ¶ 24.
The patent, U.S. Patent No. 5, 878, 385 A, entitled
“Method and Apparatus for Universal Parsing of
Language” (“Ergo Patent”) was granted in
1999. Id. ¶¶ 25, 66. Plaintiff alleges
that the Ergo Patent was used to develop software that
provided structural analysis of sentences generated by speech
or text. Id. ¶ 28. Defendant Sullivan served on
Ergo's board, was its chief financial officer, and acted
as the attorney for the company. Id. ¶ 4. Ergo
closed in 1999. Id. ¶¶ 78, 80.
the same time that Ergo ceased operations, Plaintiff alleges
that Defendant Sullivan formed a competing company, Thrownet.
Id. ¶ 44. Plaintiff alleges that Defendant
Sullivan was granted access to Ergo's software source
code and provided that code to Defendant Fry, Thrownet's
head of engineering, for review. Id. ¶¶
46-48. Plaintiff alleges that Defendant Fry then developed a
software component “with exactly the same number of
lines of code, 30, 000, as the Ergo [software component],
” which Plaintiff alleges is remarkable because
Defendant Fry developed the component in two months and it
took Plaintiff 15 years to develop the Ergo software
component. Id. ¶ 48. Plaintiff alleges that
Defendants used Ergo's patented technology to make their
own software. Id. ¶ 50. Plaintiff alleges that
Defendant Fry worked with other named Defendants to obtain a
series of patents that were dependent on the software
component that Plaintiff alleges was stolen from the Ergo
patented technology. Id. ¶¶ 56-62.
Plaintiff alleges that Defendant Sullivan violated his
fiduciary and legal responsibilities to Plaintiff and
conspired with the other named Defendants to steal Ergo's
patented technologies. Id. ¶ 63. Plaintiff
alleges that he did not learn of the full scope of the
Defendants alleged actions until 2015. Id.
¶¶ 80, 87, 90-94.
proceeding pro se, filed this action in the Circuit Court for
the First Circuit of the State of Hawaii, on July 31, 2015.
See ECF No. 1-1 at 1. Plaintiff filed an amended
complaint on March 3, 2016. ECF No. 1-2 at 1. On August 4,
2016, the state court granted Defendant Sullivan's motion
for a more definite statement and gave Plaintiff until August
12, 2016, to file a second amended complaint. ECF No. 45-3 at
65-69. Because Plaintiff did not file a second amended
complaint by the court's deadline, Defendant Sullivan
then filed a motion to dismiss. See ECF No. 47-4 at
1-10. The court denied Defendant Sullivan's motion to
dismiss without prejudice and quashed attempted service of
process of Plaintiff's late-filed second amended
complaint on Defendant Sullivan on August 12, 2016, and
August 26, 2016. See ECF No. 50-6 at 50-52.
filed a request to file a third amended complaint, which was
granted by the state court on January 31, 2017. ECF No. 51-2
at 1, 104-05. Plaintiff filed his Third Amended Complaint on
March 1, 2017. ECF No. 51-3 at 1.
Sullivan removed this action on May 4, 2017. ECF No. 66-5 at
93. The court remanded this case back to state court on
October 30, 2017, finding that Defendant Sullivan's
removal was untimely. See ECF No. 8.
Microsoft filed its Notice of Removal on November 3, 2017.
ECF No. 1; ECF No. 66-5 at 106. In its Notice of Removal,
Defendant Microsoft states that it was served with the Third
Amended Complaint on May 9, 2017, five days after this action
had already been removed by Defendant Sullivan. ECF No. 1 at
4-5. In the present Motion, Plaintiff asks the Court to
remand this case again because Defendant Microsoft's
removal was untimely. ECF No. 24. Alternatively, Plaintiff
asks the Court to grant summary judgment against Defendants
based on their failure to answer interrogatories or to compel
Defendants to respond to those interrogatories. Id.
Finally, Plaintiff asks for sanctions against for Defendants
for wasting time, money, and resources. Id.
defendant who invokes the federal court's removal
jurisdiction has the burden of establishing that removal was
proper. Washington v. Chimei Innolux Corp., 659 F.3d
842, 847 (9th Cir. 2011). “The removal statute is
strictly construed, and any doubt about the right of removal
requires resolution in favor of remand.”
Moore-Thomas v. Alaska Airlines, Inc., 552 F.3d
1241, 1244 (9th Cir. 2009); Gaus v. Miles, Inc., 980
F.2d 564, 566 (9th Cir. 1992) (“Federal jurisdiction
must be rejected if there is any doubt as to the right of
removal in the first instance.”).
the Court rejects Plaintiff's argument that Defendant
Microsoft's removal was untimely. Section 1446(b)
provides that an action may be removed within thirty days
after the defendant receives a “paper from which it may
first be ascertained that the case is one which is or has
become removable” if “the case stated by the
initial pleading is not removable.” See 28
U.S.C. § 1446(b)(3); Busch v. Jakov Dulcich &
Sons LLC, No. 15-CV-00384- LHK, 2015 WL 3792898, at *3
(N.D. Cal. June 17, 2015) (quoting Harris v. Bankers Life
and Casualty Co., 425 F.3d 689, 692 (9th Cir. 2005)
(internal quotation marks omitted)); see also Destfino v.
Reiswig, 630 F.3d 952, 957 (9th Cir. 2011) (“each
defendant is entitled to thirty days to exercise his removal
rights after being served”). Defendant Microsoft argues
that the remand order is the paper from which it may be first
ascertained that the case is removable. The Court agrees. At
the time that Defendant Microsoft was served with the Third
Amended Complaint, this case had already been removed to
federal court and therefore was not removable. After remand
was granted, ...