Myhre et al v. Dean et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
RINA H. MYHRE, et al.,
Plaintiffs,
vs.
WILLIAM DEAN, et al.,
Defendants.
Case No. 25-cv-00531-DKW-KJM
ORDER DENYING PLAINTIFFS’
MOTION TO REMAND1
Plaintiffs Rina H. Myhre and Jessica Myhre2 filed this contract dispute action
in state court against Defendants William Dean and Ohana Law Firm, LLC. 	Dkt.
No. 5-10. 	Defendants removed the action to this Court on diversity grounds, Dkt.
No. 1, and the Myhres now move to remand, Dkt. No. 11.
Having reviewed the instant motion, the pleadings, the parties’ briefs, the
relevant legal authorities, and the record generally, the Court finds that remand is
not appropriate. 	Accordingly, the motion to remand is DENIED, as explained
below.
1 Pursuant to Local Rule 7.1(c), the Court finds these matters suitable for disposition without a
hearing.
2 This Order refers to Plaintiffs as “the Myhres” collectively and, where appropriate, to each Myhre
by first name.
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FACTUAL & PROCEDURAL BACKGROUND
I. 	The Amended Complaint
The following facts are taken from the Amended Complaint. Dkt. No. 5-10.
Facing multiple proceedings in a family law dispute concerning divorce and
child custody, Jessica agreed to retain Dean, an attorney of Ohana Law Firm, as her
counsel. Id. ¶ 11. In exchange for his representation, Dean would receive a $40,000
interest in real property owned by Jessica’s mother, Rina, which Dean insisted come
in the form of a quitclaim deed. 	Id. ¶ 11–12, 29. 	Dean would then quitclaim his
interest back to Rina “in proportion to funds paid to [him].” Id. ¶ 29.
As relevant here, the Myhres soured on Dean’s legal representation, alleging
that Dean was unprepared for proceedings, made filings and crucial decisions
without consultation, refused to call important witnesses during trial or submit
motions Jessica requested, failed to return family documents, made derogatory
remarks about the Myhres, and overbilled for his services. Id. ¶¶ 16, 22, 35–46, 57.
Dean also “unilaterally changed the terms of the agreement” with the Myhres,
upping his demands to $80,000 and then $130,000, and further demanding that the
Myhres sell their house. 	Id. ¶¶ 32, 54. 	Eventually, Dean refused to respond to
Jessica and “told her he would only communicate through a mental health therapist.”
Id. ¶ 17. 	The Myhres sought relief in several forms, including removing Dean’s
interest from the subject real property, together with certain fees and costs. Id. at 9.
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II. 	Procedural History
On January 1, 2025, the Myhres filed suit against Dean and his law firm in
Hawai‘i state court. 	Dkt. No. 5-2. 	On March 20, 2025, the Myhres filed the
Amended Complaint, asserting claims of (1) fraudulent misrepresentation; (2)
duress; (3) breach of contract; (4) unjust enrichment/lack of consideration; (5)
negligence; (6) and intentional infliction of emotional distress. Dkt. No. 5-10. As
relevant here, Defendants contested jurisdiction, arguing that they had not been
properly served. Dkt. No. 5-40. On December 18, 2025, Defendants removed the
action to this Court on the basis of diversity jurisdiction, stating that the Myhres were
citizens of Hawai‘i, Defendants were citizens of California, and the amount in
controversy exceeded $75,000. Dkt. No. 1.
On December 31, 2025, the Myhres filed the instant motion to remand,
asserting that (1) Defendants failed to establish complete diversity because Dean
was a citizen of Hawai‘i; (2) removal was barred by the forum-defendant rule; (3)
removal was untimely; (4) Dean had already appeared in and invoked the jurisdiction
of the state court; and (5) Defendants were judicially estopped from asserting federal
jurisdiction. Dkt. No. 11. The Myhres further request fees and costs incurred as a
result of removal. Id. ¶¶ 41–42.
On January 12, 2026, Defendants responded that (1) complete diversity
existed at the time of removal because Dean was a citizen of California; (2) the
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forum-defendant rule did not apply because Defendants were not citizens of Hawai‘i
and were not properly served; (3) removal was timely because the Myhres did not
complete proper service of process; (4) Dean’s special appearances in state court to
contest service did not waive his right to removal; and (5) the Myhres were not
entitled to fees and costs. Dkt. No 15. The Myhres did not reply.
STANDARD OF REVIEW
Pursuant to 28 U.S.C. §§ 1441(a) and 1446(b), any civil action brought in a
State court may be removed to federal court by a defendant provided that the federal
court would have had original jurisdiction over the action, and the removal is timely.
Pursuant to 28 U.S.C. §§ 1331 and 1332(a)(1), this Court has original jurisdiction of
all civil actions involving, respectively, (i) federal law and (ii) an amount in
controversy in excess of $75,000 and citizens of different States.
“[A]ny doubt about the right of removal requires resolution in favor of
remand.” 	Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir.
2009). Further, a defendant has the burden of establishing that removal was proper.
Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996).
DISCUSSION
The Myhres argue that removal was improper on various grounds. The Court
disagrees and addresses each argument in turn.
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I. 	Diversity
28 U.S.C. § 1332(a) provides for federal jurisdiction over actions involving
“citizens 	of 	different 	States” 	in 	which 	the 	amount 	in 	controversy 	exceeds
$75,000. 	Known 	as 	“diversity 	jurisdiction,” 	such 	jurisdiction 	requires
“complete diversity between all plaintiffs and all defendants.” Lincoln Prop. Co. v.
Roche, 546 U.S. 81, 84 (2005). 	Citizenship of a natural person is “determined by
[the person’s] state of domicile,” which means “where [they] reside[] with the
intention to remain or to which [they] intend[] to return.” Kanter v. Warner-Lambert
Co., 265 F.3d 853, 857 (9th Cir. 2001).
When removal is based on diversity jurisdiction, citizenship is “determined
(and must exist) as of the time the complaint is filed and removal is effected.”
Strotek Corp. v. Air Transp. Ass’n of Am., 300 F.3d 1129, 1131 (9th Cir. 2002).
Diversity depends on the citizenship of the parties named in the complaint at the
time of removal “regardless of service or non-service.” Clarence E. Morris, Inc. v.
Vitek, 412 F.2d 1174, 1176 (9th Cir. 1969).
The Myhres argue that Defendants have provided “no competent evidence”
that Dean is domiciled in California, as opposed to Hawai’i, and therefore have failed
to demonstrate complete diversity. 	Dkt. No. 11 ¶¶ 13–18. 	Defendants, however,
not only state in the notice of removal that Dean is domiciled in California, Dkt. No.
1 at 2, but they support this assertion with a declaration in which Dean attests that
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California is his permanent home, has been since September 2021, and that he has
not maintained any residence in Hawai‘i since September 2020, Dkt. No. 15-1.
Plaintiffs do not explain why this evidence is not, in their view, “competent” because
they did not bother to file a reply brief. In this instance, the record before the Court
clearly favors Defendants, and the Court accepts Dean’s representation that he is a
citizen of California. See Barron v. Am. Fam. Mut. Ins. Co., 741 F. App’x 451, 452
(9th Cir. 2018) (finding that a declaration stating party’s domicile sufficed to
establish diversity of citizenship); Mondragon v. Capital One Auto Finance, 736
F.3d 880, 884 (9th Cir. 2013) (“[C]ourt[s] should consider the entire record to
determine whether evidence of residency can properly establish citizenship.”
(internal quotation marks omitted)).
The Myhres further argue that Dean demonstrated Hawai‘i citizenship by
having “affirmatively litigated” this action in state court. 	Dkt. No. 11 at 5. 	This
misunderstands the bases for diversity citizenship. 	The relevant question in
determining citizenship for a natural person is where that person is domiciled.
Where 	such 	a 	person 	“affirmatively 	litigate[s]” 	is 	irrelevant. 	C.f., 	Columbia
Sportswear N. Am., Inc. v. Seirus Innovative Accessories, Inc., 454 F. Supp. 3d 1040,
1047 (D. Or. 2020) (a defendant “litigat[ing in a forum state] does not give rise to
jurisdiction in future lawsuits because his presence there was not his choice”).
The Court is satisfied that Defendants have demonstrated complete diversity.
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II. 	Forum-Defendant Rule
In addition to requiring complete diversity, the removal statute sets forth a
“forum-defendant rule” on actions removed pursuant to diversity: “such action[s]
shall be removable only if none of the parties in interest properly joined and served
as defendants is a citizen of the State in which such action is brought.” 28 U.S.C.
§ 1441(b)(2); see Lively v. Wild Oats Markets, Inc., 456 F.3d 933, 939 (9th Cir.
2006) (“[Section] 1441(b) confines removal on the basis of diversity jurisdiction to
instances where no defendant is a citizen of the forum state.”).
The Myhres argue that removal is “independently barred by the forum-
defendant rule” because Ohana Law Firm is “a Hawai‘i law firm entity with Hawai‘i
contacts and Hawai‘i-based operations.” Dkt. 11 ¶¶ 19–21. But a limited liability
company like Ohana “is a citizen of every state of which its owners/members are
citizens,” not the state in which it was formed or does business. 	NewGen, LLC v.
Safe Cig, LLC, 840 F.3d 606, 612 (9th Cir. 2016) (internal quotation marks omitted).
The Myhres do not allege the identities of any members of Ohana in the Amended
Complaint, see Dkt. No. 5-10, and so provide nothing to support their suggestion
that the Law Firm is a citizen of Hawai‘i. Defendants, on the other hand, allege that
the sole member of Ohana is Dean. Dkt. Nos. 1 ¶ 6, 15-1 ¶ 12. This being the case,
Ohana Law Firm is a citizen of California, as is Dean. 	Supra, at 5–6. The forum-
defendant rule thus does not apply.
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III. 	Timeliness
A defendant must file a notice of removal “within 30 days after the receipt by
the defendant, through service or otherwise, of a copy of the initial pleading . . . .”
28 U.S.C. § 1446(b). 	The U.S. Supreme Court has explained that, under Section
1446(b), counting begins when the defendant is formally served with the summons
and complaint. 	See Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S.
344, 347–48, 350 (1999) (reversing the remand of an action on timeliness grounds
and explaining that, “[i]n the absence of service of process (or waiver of service by
the defendant), a court ordinarily may not exercise power over a party the complaint
names as a defendant.”).
Defendants argue that removal was timely because proper service on both
Ohana Law Firm and Dean has never occurred. 	Dkt. No. 15 at 5–6. 	The Myhres
acknowledge Defendants’ challenges to the sufficiency of service but argue that
Plaintiffs attempted service nonetheless gave “actual notice”, triggering the 30-day
removal window. Dkt. No. 11 ¶ 24.
The Myhres are incorrect. The Supreme Court has made clear that the time
to remove is triggered by proper, not attempted, service of process. 	Murphy Bros.,
526 U.S. at 347–48. 	Mere “[a]ctual notice of the action is insufficient; rather, the
defendant must be notified of the action, and brought under a court’s authority, by
formal process, before the removal period begins to run.” 	Quality Loan Service
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Corp. v. 24702 Pallas Way, Mission Viejo, CA 92691, 635 F.3d 1128, 1133 (9th Cir.
2011) (internal citations omitted). 	In other words, even if Defendants were
constructively put on notice that the lawsuit existed, such notice alone would not
cause the removal deadline to run. See Kim v. Queens Med. Ctr., 2019 WL 9078779,
at *3 (D. Haw. Oct. 29, 2019) (“The thirty-day window for removal triggered by an
initial pleading under Section 1446(b)(1) 	does 	require formal service of the
summons and complaint.” (emphasis in original)).
The Myhres also assert that Ohana Law Firm was properly served via
registered agent on August 19, 2025 with subsequent removal occurring on
December 18, 2025, more than 30 days later. Dkt. No. 11 ¶ 23. However, even if
the Court assumed that Ohana Law Firm was properly served—something which
Ohana does not concede (see generally, Dkt. No. 8-1)—the Myhres make no
mention of Dean who, according to Defendants, also has never been properly served.
Id. 	“In a multi-defendant suit where parties are served at different times, the last
served defendant timely removes a case if the notice of removal is filed thirty days
after service, regardless of when the other parties were effectively served.” Beckman
v. Wal-Mart Stores, Inc., 2018 WL 1089985, at *2 (S.D. Cal. Feb. 26, 2018) (citing
28 U.S.C. § 1446(b)(2)(C); see also Delfino v. Reiswig, 630 F.3d 952, 956 (9th Cir.
2011) (“[W]e hold that each defendant is entitled to thirty days to exercise his
removal rights after being served.”). Because Plaintiffs do not address when or even
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if Dean was properly served, the 30-day period, at least as to him, appears to have
never begun. 	See Heagens v. Ganon, 2025 WL 1937613, at *1 (D. Nev. July 15,
2025) (“Given that [d]efendant was never served, the 30-day removal clock never
started, so his removal was timely.”); Elat Props., LLC v. Falls Lake Nat’l Ins. Co.,
2024 WL 4149713, at *3 (C.D. Cal. Sept. 11, 2024) (“Because [p]laintiff never
properly served [d]efendant with the summons and complaint, § 1446(b)’s thirty-
day removal window was never triggered, and [d]efendant’s removal was timely.”).
Accordingly, removal was timely.
IV. 	State Court Appearance
The Myhres argue Dean’s decision to “affirmatively s[eek] relief” in state
court by making “a substantial appearance” to contest jurisdiction and service means
he waived the right to litigate anywhere else. 	Dkt No. 11 ¶¶ 26–33. They further
claim 	that 	Dean 	“confirm[ed] 	Hawai‘i 	ties 	sufficient 	to 	destroy 	diversity
jurisdiction” by providing a Hawai‘i business address to the state court. 	Id. ¶ 31–
33.
To the extent that the Myhres argue that Dean maintaining a business address
in Hawai‘i suffices to prove his citizenship for diversity purposes, they are mistaken.
See Mcavoy v. Lowe’s Home Centers LLC, 2022 WL 2072672, at *4 (C.D. Cal. June
9, 2022) (“[C]onducting business in a state does not necessarily make an individual
a citizen of that state for diversity jurisdiction purposes.”). As explained above, the
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relevant question for determining the citizenship of an individual is domicile, not
activity. As also explained above, Dean has already established that his domicile is
California, 	something 	which 	the 	Myhres 	do 	not 	meaningfully 	contest. 	See
Discussion, Section I, supra.
As for waiver, a defendant “may waive the right to remove to federal court
where, after it is apparent that the case is removable, the defendant takes actions in
state court that manifest his or her intent to have the matter adjudicated there, and to
abandon his or her right to a federal forum.” 	Resol. Tr. Corp. v. Bayside Devs., 43
F.3d 1230, 1240 (9th Cir. 1994), as amended (Jan. 20, 1995). 	Such a waiver,
however, must be “clear and unequivocal,” id., and “[g]enerally speaking, ‘the right
of removal is not lost by action in the state court short of proceeding to an
adjudication on the merits,’” Kenny v. Wal-Mart Stores, Inc., 881 F.3d 786, 790 (9th
Cir. 2018).
Here, the Myhres allege that Dean appeared in state court to “fil[e] a Motion
to Dismiss for lack of jurisdiction, insufficiency of service, and lack of personal
service.” 	Dkt. No. 11 ¶ 27. 	Dean similarly provides in his declaration that “his
participation in the state court action was limited to raising jurisdictional and service-
related objections.” 	Dkt. No. 15-1 ¶ 18. 	These activities fall far short of an
adjudication on the merits, Kenny, 881 F.3d at 790, and Dean’s decision to make a
special appearance in state court to contest jurisdiction does not constitute the kind
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of “clear and unequivocal” waiver this Court requires, Resol. Tr. Corp., 43 F.3d at
1240. Remand, based on an alleged waiver, is denied.
V. 	Judicial Estoppel
On a similar note, the Myhres claim that by previously “invoking Hawai‘i
jurisdiction . . . only to reverse course and claim Federal Jurisdiction,” Defendants
took an inconsistent position warranting judicial estoppel. Dkt. No. 11 ¶¶ 34–37.
Judicial estoppel is an “equitable doctrine invoked by a court at its discretion,”
New Hampshire v. Maine, 532 U.S. 742, 750 (2001) (internal quotation marks
omitted), in order to “prevent a party from gaining an advantage by taking
inconsistent positions” and “protect against a litigant playing fast and loose with the
courts,” Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 782 (9th Cir. 2001)
(internal quotation marks omitted). 	The Ninth Circuit permits the application of
judicial estoppel only in “cases where the court relie[s] on, or accept[s], the party’s
previous inconsistent position.” 	Id. at 783 (internal quotation marks omitted). 	To
determine if judicial estoppel applies, courts look to whether “the party’s later
position is clearly inconsistent with its earlier position.” 	Wahl v. Boeing Co., 2020
WL 3119065, at *4 (W.D. Wash. June 12, 2020).
Judicial estoppel is not appropriate here because, from a review of the record,
there is no contradiction between Defendants’ past and present positions. 	The
Myhres claim that Defendants “invoke[ed] Hawai‘i jurisdiction” by litigating in state
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court, Dkt. No. 11 ¶ 34, but that litigation was limited to appearing in order to dispute
the state’s jurisdiction. Defendants were contesting the state court’s jurisdiction, not
consenting to it, and their decision to remove the action to a different court is
consistent with that stance. Judicial estoppel therefore does not apply.
CONCLUSION
Because Defendants have complied with the removal statutes they rely on, the
Myhres’ motion to remand, Dkt. No. 11, is DENIED. 	Moreover, because the
Myhres’ sanctions demand lacks any basis, it too is DENIED.
IT IS SO ORDERED.
DATED: March 6, 2026 at Honolulu, Hawai‘i.
Rina H. Myhre, et al vs. William Dean, et al; Civil No. 25-00531 DKW-KJM;
ORDER DENYING PLAINTIFFS’ MOTION TO REMAND
___________________________
Derrick K. Watson
Chief United States District Judge
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