4797913.

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GOODSILL ANDERSON QUINN & STIFEL
A LIMITED LIABILITY LAW PARTNERSHIP LLP
LENNES N. OMURO 5392-0
lomuro@goodsill.com
First Hawaiian Center, Suite 1600
999 Bishop Street
Honolulu, Hawaii 96813
Telephone: (808) 547-5600
Facsimile: (808) 547-5880
Attorneys for Defendant
ACE AMERICAN INSURANCE COMPANY

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
COUNTY OF MAUI,
Plaintiff,
vs.
ACE AMERICAN INSURANCE
COMPANY, MAUI FAIR
ALLIANCE, J OHN DOES 1-10,
J OHN DOE PARTNERSHIPS 1-10
and J OHN DOE CORPORATIONS
1-10,
Defendant.
CIVIL NO. 14-00236
NOTICE OF REMOVAL BY
DEFENDANT ACE AMERICAN
INSURANCE COMPANY;
EXHIBIT 1; CERTIFICATE OF
SERVICE

NOTICE OF REMOVAL BY DEFENDANT
ACE AMERICAN INSURANCE COMPANY
TO: THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
Defendant ACE American Insurance Company (ACE), by and
through its attorneys, Goodsill Anderson Quinn & Stifel LLP, hereby submits this
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Notice of Removal (Notice), pursuant to 28 U.S.C. 1332 (Diversity of
Citizenship), 1441 and 1446, and, for its short and plain statement of the grounds
of removal, states as follows:
Diversity J urisdiction
A. Introduction
1. On or about April 14, 2014, Plaintiff County of Maui
(Plaintiff) filed a Complaint against Defendant ACE in an action entitled
County of Maui v. ACE American Insurance Company, et al., Civil No.
14-1-0235(2), in the Circuit Court of the Second Circuit, State of Hawaii.
2. Plaintiffs Complaint seeks a declaratory judgment ordering
that Defendant ACE defend and indemnify Plaintiff and provide liability coverage
to Plaintiff and further seeks attorneys fees, and compensatory, consequential and
special damages.
3. The Complaint was served on ACE on April 28, 2014.
B. There is Diversity of Citizenship
4. Paragraph 1 of the Complaint identifies Plaintiff County of
Maui (Plaintiff) as a municipal corporation within the State of Hawaii.
5. Defendant ACE is a corporation organized and existing under
the laws of the State of Pennsylvania, with its principal place of business in the
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State of Pennsylvania. It is therefore deemed a citizen of the State of Pennsylvania
within the meaning of 28 U.S.C. 1332(c)(1).
6. The Complaint also identifies Maui Fair Alliance as a non-
profit corporation organized pursuant to the laws of the State of Hawaii. The
presence of Maui Fair Alliance in this action does not compromise the complete
diversity requirement of 1332 and 1441(b) because Maui Fair Alliance has been
fraudulently joined as a defendant.
7. Where a defendant has been fraudulently joined, that
defendants presence in the lawsuit is ignored for purposes of determining
diversity. Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001).
J oinder is fraudulent if the plaintiff fails to state a cause of action against a
resident defendant, and the failure is obvious according to the settled rules of the
state. McCabe v. Gen. Foods Corp., 811 F.2d 1336, 1339 (9th Cir. 1987). If the
Hawai`i courts have not specifically addressed the relevant issues, the court must
make a reasonable determination of the result the highest court would reach if
deciding the case. Roehrig v. Tong, Civ. No. 05-00667 SPK-BMK, 2006 WL
89759, at *2 (D. Haw. Apr. 3, 2006) (quoting Kona Enters., Inc. v. Estate of
Bishop, 229 F.3d 877, 885 n. 7 (9th Cir. 2000).
8. Here, Maui Fair Alliance has been fraudulently joined to
prevent removal because Plaintiffs Complaint for Declaratory Relief does not
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require and is not dependent upon Maui Fair Alliance being a defendant in this
action.
9. Plaintiff merely summarily alleges that Defendant Fair is
named in this lawsuit to prevent the multiplicity of actions and inconsistent
decisions. (Complaint, 5). Plaintiff states no causes of action against Maui Fair
Alliance and has no standing to assert claims on Maui Fair Alliances behalf. This
is a coverage action between Plaintiff and Defendant ACE and does not and should
not involve Maui Fair Alliance. Maui Fair Alliance is not an indispensable party to
this action.
10. Because Plaintiff asserts no cognizable causes of action against
Maui Fair Alliance, this Court should ignore Maui Fair Alliances citizenship for
the purposes of determining subject matter jurisdiction.
C. The Amount in Controversy Requirement is satisfied.
11. The amount-in-controversy requirement for diversity
jurisdiction is satisfied in this case because it is clear from the face of the petition
that the matter in controversy exceeds the sum or value of $75,000, exclusive of
interest and costs. 28 U.S.C. 1332(a)
12. The Complaint seeks a declaration that Defendant ACE
indemnify Plaintiff and provide liability coverage to Plaintiff with respect to a
lawsuit filed against Plaintiff by Stratford Doreen Goodhue entitled Stratford
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Goodhue and Doreen Goodhue v. County of Maui, et. al., Civil No. 14-00006
ACK KSC in the United States District Court for the District of Hawaii
(hereinafter the Goodhue Suit).
13. In the Goohue Suit, the Goodhues seek declaratory and
injunctive relief against Plaintiff herein for violation of their First Amendment
rights and also alleges against Plaintiff as follows, [t]he County is sued for both
damages to redress past violations of Pastor and Mrs. Goodhues First Amendment
rights and for prospective relief intended to prevent future violations of Plaintiffs
[the Goodhues] First Amendment Rights.
14. In the Goodhue Suit, the Goodhues also seek damages for
humiliation, embarrassment, inconvenience, mental and emotional distress,
litigation expenses and other compensatory damages in an amount to be
determined by the Court.
15. In the Goodhue Suit, the Goodhues further seek an award of
reasonable attorneys fees, costs and other expenditures incurred as a result of
bringing their action pursuant to 42 U.S.C. 1988 and other applicable laws. An
award of attorneys fees counts toward the amount in controversy. See Lowdermilk
v. United States Bank National Association, 479 F.3d 994, 1000 (9th Cir. 2007).
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16. In addition to indemnity and coverage for the claims asserted
against it in the Goodhue Suit, Plaintiff in this case also seeks a declaration that
Defendant ACE must defend Plaintiff in the Goodhue suit.
17. Plaintiff also seeks attorneys fees and costs against Defendant
ACE pursuant to Haw. Rev. Stat. 431:10C-242.
18. Plaintiff further seeks compensatory, consequential and special
damages from Defendant ACE.
19. If liability is established by Plaintiff, defense expenditures for
the Goodhue Suit, indemnity for claims made in the Goodhue Suit, and attorneys
fees and damages sought by Plaintiff in this case are such that the matter in
controversy exceeds $75,000.
20. Accordingly, this Court has original jurisdiction of this action
under 28 U.S.C. 1332(a), and this action is one which may be removed to this
Court by Defendant pursuant to the provisions of 28 U.S.C. 1441(a) and 1446,
respectively, in that the civil action is between citizens of different States and the
amount in controversy exceeds $75,000, exclusive of interest and costs.
Process and Pleadings
21. Pursuant to 28 U.S.C. 1446(a), a copy of all process, pleadings
and orders served upon the removing defendant is attached hereto as Exhibit 1.
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22. Written notice of the filing of this Notice of Removal is being
delivered to all known parties who have appeared in this action through their
counsel of record. Promptly after the filing hereof, a copy of this Notice of
Removal will be filed with the Clerk of the Court for the State of Hawaii and
copies served on all parties who have made an appearance. 28 U.S.C 1446(d).
23. This Notice of Removal has been timely filed within thirty (30)
days of Defendant ACEs receipt of Plaintiffs Complaint by Defendant ACE,
pursuant to 28 U.S.C. 1446(b).
24. Venue is proper in the United States District Court for the
District of Hawaii pursuant to 28 U.S.C. 1446(a) because the action is pending
within the District of Hawaii. See also 28 U.S.C. 1441(a).
25. As is discussed above, Defendant Maui Fair Alliance is
fraudulently joined and thus need not consent to removal. Although the usual
rule is that all defendants in an action in a state court must join in a petition for
removal, the rule of unanimity does not apply to nominal, unknown or
fraudulently joined parties. United Computer Sys., Inc. v. AT&T Corp., 298
F.3d 756, 762 (9th Cir. 2002) (quoting Emrich v. Touche Ross & Co., 846 F.2d
1190, 1193 n.1 (9th Cir. 1988)). See also Jernigan v. Ashland Oil Inc., 989
F.2d 812, 815 (5th Cir. 1993) ([A]s a general rule, removal requires the
consent of all co-defendants. In cases involving alleged improper or fraudulent
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joinder of parties, however, application of this requirement to improperly or
fraudulently joined parties would be nonsensical Under 28 U.S.C.
1446(b)(2)(A) only all defendants who have been properly joined must join
in or consent to the removal of the action.
26. This short and plain statement of the grounds for removal is
signed pursuant to Rule 11 of the Federal Rules of Civil Procedure.
WHEREFORE, Defendant ACE American Insurance Company
respectfully removes this action from the Circuit Court of the Second Circuit,
State of Hawaii, to the United States District Court for the District of Hawaii,
pursuant to 28 U.S.C. 1332, 1441 and 1446.
DATED: Honolulu, Hawaii, May 19, 2014.
/s/ Lennes N. Omuro
LENNES N. OMURO
Attorney for Defendant
ACE AMERICAN INSURANCE
COMPANY

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