Watanabe v. Lankford
| Decision Date | 15 January 2010 |
| Docket Number | Civ. No. 09-00199 SPK-LEK. |
| Parties | Hideichi WATANABE, Individually and as Co-Personal Representative of the Estate of Masumi Watanabe, Deceased; et al., Plaintiffs, v. Kirk M. LANKFORD; et al., Defendants. |
| Court | U.S. District Court — District of Hawaii |
Denise K.H. Kawatachi, Gregory Y.P. Tom, Wayne K. Kekina, Cronin Fried Sekiya Kekina & Fairbanks, Honolulu, HI, for Plaintiffs.
David M. Louie, James R. Ferguson, Roeca Louie & Hiraoka LLP, Honolulu, HI, for Defendants.
ORDER ADOPTING FINDINGS AND RECOMMENDATION
A Findings and Recommendation was filed and served on all parties on December 14, 2009, and no objections were filed. Accordingly, pursuant to 28 U.S.C. § 636(b)(1)(C) and LR 74.2, the "Findings and Recommendation to Deny Plaintiffs' Motion for Remand" are adopted as the opinion and order of this Court.
IT IS SO ORDERED.
FINDINGS AND RECOMMENDATION TO DENY PLAINTIFFS' MOTION FOR REMAND
Before the Court, pursuant to a designation by Senior United States District Judge Samuel P. King, is the Motion for Remand ("Motion") filed on June 3, 2009 by Plaintiffs Hideichi Watanabe, Individually and as Co-Personal Representative of the Estate of Masumi Watanabe, Deceased, Robert T. Iinuma, as Co-Personal Representative of the Estate of Masumi Watanabe, Deceased, and Fumiko Watanabe (collectively "Plaintiffs"). Defendant the Terminix International Company Limited Partnership, doing business as Hauoli Termite and Pest Control ("Terminix") filed its memorandum in opposition on June 18, 2009, and Plaintiffs filed their reply on July 2, 2009. The Court finds this matter suitable for disposition without a hearing pursuant to Rule LR7.2(d) of the Local Rules of Practice of the United States District Court for the District of Hawai'i ("Local Rules"). After careful consideration of the Motion, supporting and opposing memoranda, and the relevant legal authority, this Court HEREBY FINDS AND RECOMMENDS that Plaintiffs' Motion be DENIED for the reasons set forth below.
On April 8, 2009, Plaintiffs filed the instant action in the First Circuit Court of the State of Hawai'i. The Complaint alleges that, on April 12, 2007, Masumi Watanabe was walking in the Pupukea area and Defendant Kirk M. Lankford was in the area performing work and driving a Terminix-owned vehicle in the course of his employment with Terminix. Lankford claimed that Masumi Watanabe sustained injuries when he accidentally struck her with the vehicle. He also claimed that she suffered fatal injuries when she exited the vehicle while he was driving. A trier of fact found that Lankford caused Masumi Watanabe's death. Complaint at ¶¶ 9-14.
Plaintiffs allege that Lankford's and Terminix's (collectively "Defendants") negligence, actions, and/or omissions caused injuries, emotional distress, and other damages to Masumi Watanabe, as well as the damages that Plaintiffs suffered as a result of Masumi Watanabe's death. Plaintiffs allege that Terminix is liable for Lankford's actions and omissions based on respondeat superior, agency liability, and because Terminix was negligent in its retention, training, and supervision of Lankford. Plaintiffs further claim that both Lankford's and Terminix's actions or omissions were so grossly negligent, willful, wanton, and/or in reckless disregard of Plaintiffs' rights as to warrant punitive damages. Plaintiffs therefore seek general, special, and punitive or exemplary damages, attorneys' fees and costs, prejudgment interest, and any other appropriate relief.
On May 5, 2009, Terminix filed its Notice of Removal of Action to United States District Court for the District of Hawaii under 28 U.S.C. §§ 1332(a), 1332(c)(2), 1441 and 1446 ("Removal Notice"). Terminix asserted that removal was proper based on diversity of citizenship. Removal Notice at 2. Terminix asserted, based on her death certificate, that Masumi Watanabe was a citizen of Japan. Id. at ¶ 3, Exh. D to Decl. of David M. Louie ("Louie Decl."). Plaintiff Hideichi Watanabe and Plaintiff Fumiko Watanabe, Masumi Watanabe's father and mother, are also citizens of Japan. Removal Notice at ¶ 3. Terminix stated that it is not a citizen of Hawai'i. Terminix, its partners, and the partners of its partners, were all incorporated in Delaware and have their principal places of business in Tennessee. Id. at 114. Terminix noted that the Complaint alleged that Lankford was a citizen of Hawai'i, but Terminix argued that Plaintiffs had not served Lankford, and therefore Lankford's citizenship did not defeat removal. Id. at ¶ 5. Further, Terminix asserted that the case satisfied the amount in controversy requirement because Plaintiff previously alleged in their request for an exemption from the state Court Annexed Arbitration Program that their damages exceeded $150,000. Id. at ¶ 8, Exh. B to Louie Decl. Terminix also alleged that the Removal Notice was timely because Terminix filed it within thirty days after Terminix received a copy of the Complaint and within the period allowed under § 1446(b). Id. at ¶ 10. Terminix received a copy of the Complaint on April 13, 2009, but as of the filing of the Removal Notice, Plaintiffs had not served Terminix with the Complaint and Summons. Id. at ¶ 2.
On September 30, 2009, Plaintiffs sent Lankford a Request for Waiver of Service. Dkt. no. 19, filed 10/13/09. Lankford executed the waiver and it was filed on October 13, 2009. Dkt. no. 20. His answer to the Complaint was due on November 30, 2009, but Lankford has not filed anything since the Waiver of Service.
In the instant Motion, Plaintiffs state that, shortly after they filed the Complaint in state court, Roeca, Louie & Hiraoka ("RLH") contacted Plaintiffs' counsel and requested a courtesy copy of the Complaint. Plaintiffs' counsel obliged. Motion, Decl. of Wayne K. Kekina ("Kekina Decl.") at ¶¶ 5-6. Plaintiffs state that it was understood that it was merely a courtesy copy because RLH had not yet received authorization to accept service on behalf of Terminix. Id. at ¶ 8. On April 14, 2009, Plaintiffs' counsel asked RLH to inform them when Terminix engaged RLH to represent it and when RLH was authorized to accept service. RLH responded that it was waiting for a response from Terminix's corporate offices. Motion, Decl. of Gregory Y.P. Tom ("Tom Decl."), at ¶ 3, Exh. 3. On April 21, 2009, Dan Boho, Esq., a Chicago attorney, contacted Plaintiffs' counsel and identified himself as Terminix's "national counsel" and its attorney in this action. Kekina Decl. at ¶ 9. Plaintiffs' counsel spoke with Mr. Boho on April 24, 2009. Mr. Boho stated that he would be handling most of the case for Terminix and that his office did not represent Lankford. Mr. Boho had not received a request to appoint counsel for Lankford, and Mr. Boho stated that he would have to discuss the matter with Terminix. Mr. Boho did not state whether RLH was authorized to accept service on behalf of Terminix. After this conversation, Plaintiffs did not receive any further communication from Terminix or any counsel for Terminix prior to the filing of the Removal Notice. Id. at ¶¶ 10-11.
Plaintiffs argue that the removal was defective because: none of the defendants had been served at the time of removal; Lankford is an in-state defendant; and Terminix failed obtain Lankford's consent to the removal. Plaintiffs assert that Terminix had thirty days after RLH requested a courtesy copy of the Complaint to remove the case and that Terminix delayed Plaintiffs' service on Lankford by indicating that it might appoint counsel for him. Plaintiffs argue that Terminix engaged in impermissible gamesmanship by using the fact that Plaintiffs had not served Lankford to avoid obtaining his consent to the removal.
In its memorandum in opposition, Terminix argues that the law does not require that all defendants be served before a case is removable. Terminix acknowledges that Lankford is an in-forum defendant, but Terminix emphasizes that Plaintiffs had not properly served him when Terminix filed the Removal Notice. Thus, Terminix argues that the courts may disregard Lankford for jurisdictional and consent purposes. Terminix asserts that the Motion improperly seeks the judicial creation of a gamesmanship exception to the wellestablished statutory rules for removal.
In their reply, Plaintiffs argue that Terminix misstates the Motion's arguments. Plaintiffs emphasize that Terminix filed the Removal Notice before any of the defendants had been served and they argue that allowing Terminix to remove the case at that point would be fundamentally unfair because Terminix participated in, if not caused, the lack of service on any defendant. Plaintiffs acknowledge that the federal courts are split on the issue whether 28 U.S.C. § 1441(b) permits removal before any defendant has been served. They argue that allowing removal in this case would not serve the provision's purpose of preventing improper joinder because there is no evidence that they improperly joined the in-forum defendant, Lankford. Finally, Plaintiffs deny that remanding this case would require the judicial creation of a gamesmanship exception to the removal statutes.
Terminix removed the instant case pursuant to 28 U.S.C. §§ 1332(a) and (c)(2), 1441, and 1446. Removal Notice at 2. Section 1441 provides, in pertinent part:
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