United States District Court, D. Hawaii
TIMOTHY R. DEGRATE, Plaintiff,
HAWAIIAN AIRLINES, INC., ET AL., Defendants.
FINDINGS AND RECOMMENDATION TO GRANT PLAINTIFF'S
MOTION FOR REMAND 
RICHARD L. PUGLISI UNITED STATES MAGISTRATE JUDGE
the Court is Plaintiff's Motion for Remand, filed
February 9, 2018 (“Motion”). ECF No. 16.
Defendant Hawaiian Airlines, Inc. filed its Opposition on
February 28, 2018. ECF No. 21. Plaintiff filed his Reply on
March 13, 2018. ECF No. 22. 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. 20. After
carefully reviewing the submissions of the parties and the
relevant legal authority, the Court FINDS and RECOMMENDS that
the district court GRANT Plaintiff's Motion.
December 21, 2017, Plaintiff filed a complaint in the State
of Hawaii Circuit Court of the First Circuit alleging a
continuing pattern of racial harassment, discriminatory
conduct, and retaliation, and various other state law claims,
including assault and battery, negligent hiring and
supervision, and intentional infliction of emotional distress
(“State Court Complaint”). ECF No. 1-2. Although
the State Court Complaint does not expressly assert any
claims under federal law, in the Prayer for Relief in the
State Court Complaint, Plaintiff sought a permanent
injunction prohibiting Defendants from violating Title VII of
the Civil Rights Act of 1964 (“Title VII”) and an
award of attorney's fees under Title VII. See
ECF No. 1-2 ¶ B, H.
that same day, Plaintiff filed a complaint in federal court
alleging the same state law claims as the State Court
Complaint based on the same set of facts and also expressly
alleging violations of Title VII (“Federal Court
Complaint”). See Civil No. 17-00604, ECF No.
1. Plaintiff has not served Defendant with the Federal Court
Complaint, and the time to serve Defendant in that case
expires on March 21, 2018. See Fed.R.Civ.P. 4(m).
removed the State Court Complaint to this Court on January
12, 2018, asserting federal question jurisdiction. ECF No. 1.
On January 19, 2018, Defendant filed a motion to dismiss most
of the claims asserted in the State Court Complaint for
failure to state a claim. ECF No. 6. On January 26, 2018,
Plaintiff filed a First Amended Complaint, which does not
reference Title VII or any other federal statute.
See ECF No. 12. The district court has deferred
decision on Defendant's motion to dismiss. See
ECF No. 13.
filed the present Motion on February 9, 2018, seeking remand
and arguing that there is no federal question jurisdiction.
ECF No. 16-1.
defendant who invokes the federal court's removal
jurisdiction has the burden of establishing federal
jurisdiction. Washington v. Chimei Innolux Corp.,
659 F.3d 842, 847 (9th Cir. 2011). Courts construe the
removal statute strictly against removal. Gaus v. Miles,
Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citations
omitted). If there is any doubt as to the right of removal in
the first instance, remand must be granted. See Id.
Defendant asserts that removal was proper based on federal
question jurisdiction. “[F]ederal jurisdiction exists
only when a federal question is presented on the face of the
plaintiff's properly pleaded complaint.” Rivet
v. Regions Bank of La., 522 U.S. 470, 475 (1998)
(citations and internal quotation marks omitted). “In
determining the existence of removal jurisdiction, based upon
a federal question, the court must look to the complaint as
of the time the removal petition was filed. Jurisdiction is
based on the complaint as originally filed and not as
amended.” Kobold v. Good Samaritan Reg'l Med.
Ctr., 832 F.3d 1024, 1045-46 (9th Cir. 2016) (citations
omitted). Accordingly, for purposes of determining whether
removal was appropriate, the Court will consider the State
State Court Complaint, Plaintiff asserts the following causes
of action: race discrimination in violation of Hawaii Revised
Statutes Section 378-2; racial harassment in violation of
Hawaii Revised Statutes Section 378-2; inadequate
investigations of race discrimination and/or racial
harassment in violation of Hawaii Revised Statutes Section
378-2; retaliation in violation of Hawaii Revised Statutes
Section 378-2; aiding and abetting discrimination in
violation of Hawaii Revised Statutes Section 378-2; assault
and battery; negligent hiring, training, supervision, and
retention; and intentional infliction of emotional distress.
ECF No. 1-2 ¶¶ 111-158. These claims do not
reference or rely on any federal law. The only reference to
federal law is in Plaintiff's Prayer for Relief, which
asks for “a permanent injunction prohibiting DEFENDANTS
from further acts of race discrimination, racial harassment,
retaliation, in violation of Title VII and [Hawaii's Fair
Employment Practices Act].” Id. ¶ B.
Additionally, the Prayer for Relief requests
“reasonable attorney's fees and costs of suit
herein as well as prejudgment and post judgment interest, as
provided by 706(k) of Title VII, 42 U.S.C. § 2000e-6(k)
and HRS § 368-17.” Id. ¶ H.
Rains v. Criterion Systems, Inc., the Ninth Circuit
similarly considered whether reference in the prayer for
relief to federal law was sufficient to establish federal
question jurisdiction. 80 F.3d 339, 343 n.3 (9th Cir. 1996).
The Ninth Circuit held that “we do not find the
attorneys' fee and pre-judgment interest requests
determinative. It is the nature of the cause of action that
is controlling.” Id. Here, the nature of the
causes of action asserted by Plaintiff in the State Court
Complaint are all based on state law. Plaintiff's
reference to Title VII in his Prayer for Relief does not
transform his state law claims into federal claims.
Court rejects Defendant's argument that “Title VII
is the stated basis for the discrimination-related
claims.” See ECF No. 21 at 10. Plaintiff's
State Court Complaint does not rely on Title VII to support
his claims for race discrimination. The State Court Complaint
expressly relies on Hawaii Revised Statutes Section 378-2 and
makes no mention of Title VII, except for the Prayer for
Relief. See ECF No. 1-2. Further, the Court rejects
Defendant's argument that removal was proper simply
because Plaintiff also filed a Federal Court Complaint based
on the same facts that expressly asserted claims under
federal law. See ECF No. 21 at 8-9. Contrary to
Defendant's assertion, this is not an extraordinary
occurrence. Federal and state courts regularly consider
parallel cases and “as between state and federal
courts, the rule is that the pendency of an action in the
state court is no bar to proceedings concerning the same
matter in a federal court.” See R.R. St. & Co.
Inc. v. Transp. Ins. Co., 656 F.3d 966, 975 (9th Cir.
2011) (quoting Colorado River Water Conservation Dist. V.
United States, 424 U.S. 800, 817 (1976) (internal
quotation marks omitted)). Accordingly, the Court finds that
removal of the State Court Complaint was improper and this
action should be remanded.
even if the Court were to find that the State Court Complaint
was properly removed, the Court must next consider whether to
retain jurisdiction in light of Plaintiff's First Amended
Complaint. As noted above, Plaintiff filed a First Amended
Complaint that eliminated any mention of Title VII and did
not assert any other federal claims. See ECF No. 12.
In these circumstances, “the determination of whether
to retain jurisdiction over these remaining state claims or
remand them to state court is a discretionary one, and
requires the court to consider the ‘values' of
judicial economy, comity, convenience, and fairness.”
Loewe v. City of Honolulu, No. CIV. 10-00368, 2011
WL 322557, at *4 (D. Haw. Jan. 31, 2011) (citing
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 619
(1988)); see also Valmoja v. Akal Sec., Inc., No.
CIV. 13-00343 LEK, 2013 WL 5376038, at *4-6 (D. Haw. Sept.
24, 2013). “[I]n the usual case in which all
federal-law claims are eliminated before ...