United States District Court, D. Hawaii
ORDER DISMISSING ACTION
A. OTAKE UNITED STATES DISTRICT JUDGE.
31, 2019, Leonard Horowitz and Sherri Kane, who identify
themselves as both Plaintiffs and Defendants, filed a
“Notice to Adverse Parties of Removal to Federal Court
of Third Circuit Court Proceedings and ‘Motion to Show
Cause' [FRCP Rule 5], ” to which they attached a
number of documents.
5, 2019, the Court issued an Order to Show Cause
EO: On 5/31/19, Defendants Leonard Horowitz and Sherri Kane
(collectively “Defendants”) filed a document
titled “NOTICE OF REMOVAL AND COMPLAINT PURSUANT TO
THREE STATE CONSOLIDATED CASES RIPE FOR INJUNCTIVE RELIEF TO
ENJOIN MALICIOUS PROSECUTION AND DEPRICATION OF RIGHTSIN
[SIC] REAL PROPERTY CONVERSION.” Defendants
characterize two Hawai‘i Intermediate Court of Appeals
orders, attached as Exhibits 1 and 2 to the Notice of
Removal, as the “initial pleading” that triggered
the removal. It is unclear how a state appellate court
decision addressing a consolidated appeal and a subsequent
order addressing a motion for reconsideration constitute an
“initial pleading” as contemplated by 28 U.S.C.
§ 1446, much less a pleading that is removable.
Defendants also included a “Complaint for Deprivation
of Rights and Injunctive Relief with the Notice of Removal,
which is improperly captioned and asserts claims against
Plaintiff and other individuals and entities. This new
pleading does not provide a basis for removal because it
appears to be prospective complaint in which Defendants are
the named plaintiffs. By its express terms, 28 U.S.C. §
1441(a) limits the right of removal to defendants
and it authorizes the removal of civil actions brought in
state courts. 28 U.S.C. § 1441(a) (emphasis added)
(“Except as otherwise expressly provided by Act of
Congress, any civil action brought in a State court of which
the district courts of the United States have original
jurisdiction, may be removed by the defendant or the
defendants.”). Given the absence of evidence that this
new complaint was filed in state court and/or is the basis of
a state court action, there is no state court action to
remove to federal court. Indeed, Defendants identified the
District Court of Hawai‘i in the caption and there are
no markings indicating that it has ever been filed in any
court, except as an attachment here. Moreover, even if a
state action existed involving the new complaint, Defendants
would be precluded from removing the action because they are
the plaintiffs in the new complaint. Based on the foregoing,
Defendants are ordered to file a response not to exceed five
(5) pages, by 6/19/19, SHOWING CAUSE why this action should
not be remanded and/or dismissed for lack of subject matter
jurisdiction. The response must address the issues identified
above and should not reassert any arguments presented in the
Notice of Removal.
12, 2019, Horowitz and Kane filed their response to the OSC.
They claim that the Hawai‘i Intermediate Court of
Appeals (“ICA”) decision constitutes “other
paper” or an “initial pleading” raising
exclusively federal claims against state and federal actors
who are not parties to the underlying state court actions
“but ‘ascertained' in wrongdoing by the [ICA
decision].” Response, ECF No. 19 at 1.
and Kane appear to assert federal question as the basis for
removal. Section 1441(a) authorizes removal of an action by a
defendant and provides:
(a) Generally.--Except as otherwise expressly provided by Act
of Congress, any civil action brought in a State court of
which the district courts of the United States have original
jurisdiction, may be removed by the defendant or the
defendants, to the district court of the United States for
the district and division embracing the place where such
action is pending.
28 U.S.C. § 1441(a). District courts “have
original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.”
28 U.S.C. § 1331. There is a strong presumption against
removal jurisdiction, which “means that the defendant
always has the burden of establishing that removal is
proper,' and that the court resolves all ambiguity in
favor of remand to state court.” Hunter v.
Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009)
(quoting Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th
Cir. 1992) (per curiam)); Durham v. Lockheed Martin
Corp., 445 F.3d 1247, 1252 (9th Cir. 2006) (Section
1441 is strictly construed against removal and courts resolve
any doubts about the propriety of removal in favor of
remanding the case to state court).
party seeking to remove the case bears the burden of
establishing the existence of federal jurisdiction. See
California ex rel. Lockyer v. Dynegy, Inc., 375 F.3d
831, 838 (9th Cir. 2004). Courts should presume that a case
lies outside the limited jurisdiction of the federal courts.
Hunter, 582 F.3d at 1042.
and Kane argue that removal is proper pursuant to 28 U.S.C.
§ 1446(b)(3) because the ICA decision constitutes
“other papers” from which they first ascertained
that the case was removable. Section 1446(b)(3) provides:
Except as provided in subsection (c), if the case stated by
the initial pleading is not removable, a notice of removal
may be filed within 30 days after receipt by the defendant,
through service or otherwise, of a copy of an amended
pleading, motion, order or other paper from which it may