LESLIE E. KOBAYASHI, District Judge.
Before the Court is pro se Plaintiff Lanric Hyland's ("Plaintiff") Motion to Remand to Hawai`i 3rd Circuit Court ("Motion to Remand"), filed on February 1, 2016. [Dkt. no. 37.] Defendants Office of Housing & Community Development and the County of Hawaii ("the County Defendants") filed their memorandum in opposition on February 26, 2016. [Dkt. no. 41.] On February 29, 2016, Defendant Ainakea Senior Residences LLLP ("Ainakea") and Defendant Hawaii Affordable Properties, Inc. ("HAPI") each filed a joinder in the memorandum in opposition. [Dkt. nos. 42, 43.] Plaintiff filed his reply on March 7, 2016. [Dkt. no. 45.]
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"). The hearing on the Motion to Remand, currently scheduled for March 21, 2016, at 9:45 a.m., is therefore VACATED. After careful consideration of the motion, supporting and opposing memoranda, and the relevant legal authority, Plaintiff's Motion to Remand is HEREBY DENIED for the reasons set forth below.
On August 11, 2015, Plaintiff filed his "Verified Complaint of Lanric Hyland; Complaint for Complaint for [sic] Declaratory & Injunctive Relief; Appeal from Declaratory Petition" ("Complaint") in the Circuit Court of the Third Circuit, State of Hawai`i ("Third Circuit Court").
In the Motion to Remand, Plaintiff first argues that removal was improper because the County Defendants, Ainakea, and HAPI (collectively "Defendants") were all served on December 5, 2015, and the County Defendants failed to obtain Ainakea's and HAPI's consent to the removal. Plaintiff also argues that he filed a First Amended Complaint in the Third Circuit Court on January 5, 2016, and it does not assert claims based on the United States Constitution. He therefore asserts that this Court no longer has federal question jurisdiction over the case. Finally, he argues that this Court should remand the case because he cannot afford to make appearances in Honolulu, and he cannot participate in court proceedings by telephone because of a hearing disability that he incurred during his military service.
The County Defendants removed this case pursuant to § 1441(a), which states:
28 U.S.C. § 1447(c) states, in pertinent part:
This district court has stated:
However, a plaintiff waives his objection to non-jurisdictional removal defects if he fails to file a timely motion to remand.
Plaintiff first argues that this Court should remand the case because Ainakea and HAPI did not consent to the removal. 28 U.S.C. § 1446(b)(2)(A) requires that, "[w]hen a civil action is removed solely under section 1441(a), all defendants who have been properly joined and served must join in or consent to the removal of the action." However, the failure to obtain all defendants' joinder or consent is a procedural defect that can be cured prior to the entry of judgment.
Ainakea's joinder in the County Defendants' memorandum in opposition to the Motion to Remand is also a joinder in the Notice of Removal. Further, in its joinder to the memorandum in opposition, HAPI confirmed that it consented to the removal. Thus, even assuming, arguendo, that the removal was defective because the County Defendants failed to obtain either the joinder or consent of both Ainakea and HAPI, Defendants have cured that defect. To the extent that the Motion for Remand asks this Court to remand the instant case based on the alleged unanimity defect, the Motion for Remand is DENIED.
Plaintiff next argues that federal question jurisdiction no longer exists because, on January 5, 2016, he filed a First Amended Complaint, which nullifies the Complaint and does not contain any references to the United States Constitution. It is true that, as a general rule, "when a plaintiff files an amended complaint, the amended complaint supercedes the original, the latter being treated thereafter as non-existent."
To the extent that the Motion for Remand asks this Court to remand the instant case because the purported First Amended Complaint does not contain a federal question, the Motion for Remand is DENIED.
Finally, Plaintiff argues that this Court should remand the case because Plaintiff cannot afford to appear at court proceedings in Honolulu, and his service-connected hearing loss prevents him from effectively participating by telephone. This Court recognizes that it will be more difficult for Plaintiff to litigate this case in this district than it would be for him to litigate this case in the Third Circuit Court. However, there is no legal authority that would allow this Court to remand this case on that basis alone.
To the extent that the Motion for Remand asks this Court to remand the instant case because of Plaintiff's alleged inability to litigate in this district court, the Motion for Remand is DENIED. This Court, however, assures Plaintiff that the judges and staff of this district court will make all possible accommodations to ensure that his disability does not prevent him from participating in court proceedings for this case.
On the basis of the foregoing, Plaintiff's Motion to Remand to Hawai`i 3rd Circuit Court, filed on February 1, 2016, is HEREBY DENIED.
IT IS SO ORDERED.