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Chung v. Safeway Inc.

United States District Court, D. Hawaii

April 16, 2018

JOO YUN CHUNG, Plaintiff,
v.
SAFEWAY INC.; JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10; DOE CORPORATIONS 1-10; and DOE GOVERNMENTAL ENTITIES 1-10, Defendants.

          ORDER DENYING PLAINTIFF'S MOTION TO REMAND (ECF NO. 8)

          HELEN GILLMOR JUDGE

         This case has been removed twice to Federal Court. The most recent Notice of Removal was filed on December 18, 2017. (ECF No. 1).

         Plaintiff moves to remand the suit, for the second time, back to the Circuit Court for the First Circuit of the State of Hawaii. (ECF No. 8). Plaintiff argues that the removal is precluded by res judicata and that Defendant is judicially estopped from filing a second notice of removal.

         Plaintiff's Motion to Remand is without merit and is untimely.

         Plaintiff's Motion to Remand (ECF No. 8) is DENIED.

         PROCEDURAL HISTORY

         On October 17, 2016, Plaintiff filed a Complaint in the Circuit Court for the First Circuit of the State of Hawaii in the matter styled Chung v. Safeway Inc., Civil No. 16-1-1945-10 KKS. (ECF No. 1-2).

         On January 6, 2017, Plaintiff filed her First Amended Complaint adding Albert Mita as a defendant. (ECF No. 1-3).

         On January 13, 2017, Defendants Safeway Inc. and Albert Mita filed a Notice of Removal to Federal Court. (Notice of Removal, ECF No. 1 in Chung v. Safeway Inc.; Albert Mita, Civil No. 17-00020 HG-KJM (D. Haw. Jan. 13, 2017)).

         On October 4, 2017, Defendants Safeway Inc. and Albert Mita filed a Motion for Partial Summary Judgment. (Defendants' Motion for Partial Summary Judgment, ECF No. 62 in Chung v. Safeway Inc.; Albert Mita, Civil No. 17-00020 HG-KJM (D. Haw. Oct. 4, 2017)).

         On October 5, 2017, the Court issued an ORDER TO SHOW CAUSE WHY ACTION SHOULD NOT BE DISMISSED FOR LACK OF SUBJECT-MATTER JURISDICTION. (Order to Show Cause, ECF No. 64 in Chung v. Safeway Inc.; Albert Mita, Civil No. 17-00020 HG-KJM (D. Haw. Oct. 5, 2017)).

         On October 20, 2017, the Parties stipulated to remand the case back to the Circuit Court for the First Circuit of the State of Hawaii. (Stipulation and Order to Remand, ECF No. 68 in Chung v. Safeway Inc.; Albert Mita, Civil No. 17-00020 HG-KJM (D. Haw. Oct. 20, 2017)).

         On November 17, 2017, back in Hawaii State Court, Defendants Safeway Inc. and Albert Mita refiled their Motion for Partial Summary Judgment seeking to dismiss the claims against Defendant Mita and Plaintiff's claim for punitive damages. (Defendants' Notice of Removal dated December 18, 2017 at ¶ 15, ECF No. 1).

         On December 12, 2017, the Parties stipulated to dismiss Defendant Mita with prejudice. (ECF No. 1-13).

         On December 18, 2017, Defendant Safeway Inc. filed a Notice of Removal to return the suit to Federal Court. (Second Notice of Removal, in Civil No. 17-00597 HG-KJM, ECF No. 1)

         On January 19, 2018, Plaintiff filed PLAINTIFF'S MOTION TO REMAND TO STATE COURT FOR LACK OF SUBJECT MATTER JURISDICTION. (ECF No. 8).

         On February 6, 2018, Defendant Safeway Inc. filed an Opposition. (ECF No. 11).

         On February 20, 2018, Plaintiff filed a Reply. (ECF No. 12).

         On March 6, 2018, the Court elected to decide the matter without a hearing pursuant to Local Rule 7.2(d). (ECF No. 13).

         BACKGROUND

         The Parties agree that Plaintiff Joo Yun Chung is a citizen of the State of Hawaii.

         Defendant Safeway Inc. is incorporated in the State of Delaware and has its principal place of business in the State of California. (Defendants' Notice of Removal in Civil No. 17-00597 HG-KJM, dated December 18, 2017, (hereinafter “Second Notice of Removal”) at ¶ 18, ECF No. 1).

         This suit was initiated in Hawaii State Court on October 17, 2016. (Complaint at ¶ 1, attached as Exhibit A to Second Notice of Removal, ECF No. 1-2). Plaintiff Chung originally named only Safeway Inc. as a Defendant, claiming Plaintiff was injured on the premises of its store, located at 1234 S. Beretania Street, Honolulu, Hawaii. (Id. at ¶ 5).

         On January 6, 2017, Plaintiff amended her Complaint to add Albert Mita, the manager of the Safeway store on Beretania Street, as a Defendant. (Amended Complaint at ¶¶ 3-4, attached as Exhibit B to Second Notice of Removal, ECF No. 1-3). Plaintiff alleged that Manager Mita was a Hawaii resident but did not make any allegation as to his citizenship. (Id. at ¶¶ 3, 4).

         The First Notice of Removal

         On January 13, 2017, Defendants Safeway Inc. and Albert Mita removed the suit to Federal Court on the basis of diversity jurisdiction. (Notice of Removal, ECF No. 1 in Chung v. Safeway Inc.; et al., Civil No. 17-00020 HG-KJM (D. Haw. Jan. 13, 2017) (hereinafter “First Notice of Removal”)). Defendants based their First Notice of Removal on the Court's diversity jurisdiction pursuant to 28 U.S.C. § 1332. (Id. at ¶ 16). Defendants argued that there was complete diversity between Plaintiff Chung and Defendant Safeway Inc. and that Manager Mita did not destroy diversity because he was fraudulently joined. (Id. at ¶¶ 16, 17).

         On October 4, 2017, Defendants filed a Motion for Partial Summary Judgment arguing that Plaintiff did not have a cause of action against Store Manager Mita. (Defendants' Motion for Partial Summary Judgment, ECF No. 62 in Chung v. Safeway Inc.; Albert Mita, Civil No. 17-00020 HG-KJM at pp. 6-7 (D. Haw. Oct. 4, 2017)).

         On October 5, 2017, this Court issued an Order to Show Cause on why the action should not be dismissed for lack of subject-matter jurisdiction. (Order to Show Cause, ECF No. 64 in Chung v. Safeway Inc.; Albert Mita, Civil No. 17-00020 HG-KJM (D. Haw. Oct. 5, 2017)). The Court found the allegations in the Amended Complaint insufficient to determine if diversity jurisdiction existed. (Id.) The Amended Complaint asserted only that Store Manager Mita is a resident of the State of ...


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