United States District Court, D. Hawaii
ORDER REMANDING ACTION
A. Otake, United States District Judge.
Kapana B. Thronas-Kahoonei (“Thronas-Kahoonei”)
filed a Notice of Removal, citing 28 U.S.C. §§ 1331
and 1441(a) and (c) as bases for jurisdiction. The state
court proceeding he purports to remove is an appeal he filed
with the Hawai‘i Intermediate Court of Appeals
(“ICA”) and/or Hawai‘i Supreme Court in
April 2019. According to Thronas-Kahoonei, his appeal,
which he also calls a complaint, “seeks judgement [sic]
against Defendants for injuries that Plaintiffs allegedly
suffered as a result of, ‘Resisting arrest; physical
force.'” ECF No. 1 at ¶ 1. Thronas-Kahoonei
explains that his claims are based on strict products
liability, negligent misrepresentation, negligence, and
breach of warranty. Id. It appears that
Thronas-Kaohoonei's allegations relate to a criminal
prosecution against him in the Circuit Court of the Fifth
Circuit, State of Hawai‘i. ECF No. 1-2.
reasons stated below, the Court REMANDS this action.
argues that the Court has jurisdiction over his claims and
that he timely effectuated 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.
Thronas-Kahoonei improperly removed this action, which is his
appeal of a state court criminal prosecution. See Arizona
v. Folio, No. CR-19-08056-001PCT-DJH, 2019 WL 1643720,
at *1 (D. Ariz. Apr. 16, 2019) (citation omitted) (holding
that removal of state criminal appeal is improper).
“The right to remove a state court case to federal
court is clearly limited to defendants.” Am.
Int'l Underwriters (Philippines), Inc. v. Cont'l Ins.
Co., 843 F.2d 1253, 1260 (9th Cir. 1988). Although
Thronas-Kahoonei was the defendant in the underlying state
circuit court prosecution, he cannot avail himself of §
1441 because in addition to limiting the right of removal to
defendants, § 1441 applies exclusively to civil
actions. See Durham, 445 F.3d at 1252
(“[S]ection 1441 provides only for civil
prosecutions commenced in state court may be removed in
limited circumstances not applicable here. See 28
U.S.C. § 1442(a) (authorizing removal of a civil action
or criminal prosecution commenced in state court against the
United States and federal officers or agencies); 28 U.S.C.
§ 1442a (allowing removal of a civil or criminal
prosecution in a state court against a member of the armed
forces). Such removals must be effectuated “not later
than 30 days after the arraignment in the State court, or at
any time before trial, whichever is earlier.” 28 U.S.C.
§ 1455(b)(1). Thus, even if Thronas-Kahoonei was
authorized to remove his underlying criminal prosecution, he
would be time-barred, as judgment entered in the criminal
prosecution and the matter is on appeal. See
state.hi.us:8080/eCourt/ECC/PartyIdSearch.iface (last visited
Jan. 10, 2020).
Thronas-Kahoonei's improper removal of this action, the
Court lacks jurisdiction and HERBY REMANDS the case to the
ICA. See 28 U.S.C. § 1447(c) (“If at any
time before final judgment it appears that the district court
lacks subject matter jurisdiction, the case shall be
accordance with the foregoing, the Court HEREBY REMANDS ...