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Hester v. Horowitz

United States District Court, D. Hawaii

June 18, 2019

JASON HESTER, Plaintiff,
v.
LEONARD G. HOROWITZ; SHERRI KANE, Defendants.

          ORDER DISMISSING ACTION

          JILL A. OTAKE UNITED STATES DISTRICT JUDGE.

         ORDER DISMISSING ACTION

         On May 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.

         On June 5, 2019, the Court issued an Order to Show Cause (“OSC”):

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.

         ECF No. 18.

         On June 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].”[1] Response, ECF No. 19 at 1.

         DISCUSSION

         Horowitz 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).

         The 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.

         Horowitz 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 ...

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