The notice of removal, if allowed to stand, would avoid a Maui jury and could lead to an exodus of cases from the island that has suffered most.

The vast majority of Lahaina fire victims are not citizens of Maui or even Hawaii, a major internet and cable TV provider is arguing, in a move that could prevent a Maui jury from determining whether the company and other utilities were liable for the Aug. 8 fires.

Charter Communications Inc., which operates as Spectrum, is seeking to remove to Honolulu federal court a lawsuit originally filed in state court on Maui. The plaintiffs are three family members who were living in their car after losing their home in the Lahaina maelstrom, their complaint says. 

Other defendants include Hawaiian Electric and the State of Hawaii. The general allegation against the telecommunications company is that it overloaded shared utility poles with equipment, causing the poles to fall in high winds, contributing to the cause of the Aug. 8 fires, which destroyed much of the seaside town. All but one of the 100 people confirmed to have been killed were from Lahaina.

Opposing attorneys expressed outrage at Spectrum’s assertion that the “vast majority” of victims aren’t Hawaii citizens. The plaintiffs’ attorney said he will seek sanctions against the company’s counsel for allegedly making an unsubstantiated statement to the court, in violation of Federal Rules of Civil Procedure, if Spectrum doesn’t withdraw the allegation.

A lawyer for Lahaina fire victims is threatening to seek sanctions against lawyers for Spectrum if they don’t withdraw claims that most victims of the Maui fires weren’t Hawaii citizens. (David Croxford/Civil Beat/2023). (David Croxford/Civil Beat/2023)

“Your Notice of Removal contains a baseless allegation that any practicing lawyer in Hawaii knows is patently false that is crucial to your basis for removal,” Jesse Creed wrote in a letter to Gregory Markham the Honolulu lawyer serving as Spectrum’s lead counsel. “Your Notice of Removal states that the vast majority of victims of the Lahaina Fire were not local people, but mainland tourists.”

“This allegation is not only false, it is offensive and hurtful,” Creed continued. “This allegation fundamentally denies the tremendous suffering experienced acutely by the people of Lahaina – the homes, churches, and schools burned and the Lahaina people who died.” 

The state also plans to fight removal of the case to federal court on different grounds, said David Day, special assistant to Hawaii Attorney General Anne Lopez.

Markham didn’t respond to a request for comment.

The outcome could have broad implications for the wildfire litigation, which consists of more than 65 separate lawsuits, with more being filed continually. Almost all of the suits have been filed in Maui state court. If allowed to stand, Spectrum’s removal could make way for defendants to mount a mass exodus from Maui state court to federal court in Honolulu, which some view as a friendlier forum for defendants.

“It is a big deal, and it’s normal practice” Ken Lawson, a former trial lawyer who teaches at the University of Hawaii’s William S. Richardson School of Law, said in an email. “It’s important because the Defendants would rather be in federal court where there’s less ‘homecooking’ so to speak, than in state courts.”

It’s not just that the jurors would be from Honolulu, and not Maui, Lawson said.

The move also would let defendants “take advantage of trial court judges who are appointed for life and don’t have to worry about losing their seats if state legislators are not pleased with their decisions,” he said.

Federal Courts Have Limited Jurisdiction

State courts have general jurisdiction, with the power to hear a wide range of cases – including wildfire property damage and wrongful death cases – except ones prohibited by state law or reserved for federal courts.

By contrast, federal courts have limited jurisdiction, with the power to handle mostly claims arising under the U.S. Constitution, specific federal laws and U.S. treaties. The citizenship of the parties can also play a role in whether a federal court has jurisdiction. If parties on each side of a controversy are from different states, for instance, the federal court can have “diversity jurisdiction” if there’s enough money at stake.

But a federal statute also may give federal courts jurisdiction over cases involving “a single accident, where at least 75 natural persons have died in the accident at a discrete location.” Known as the Multiparty Multiforum Jurisdiction Act of 2002, that law is the basis for Spectrum’s removal action, which it filed Tuesday.

A photo of Cove Park in Kihei
Maui’s status as a popular tourist destination means “the vast majority of potential plaintiffs who may claim to have been injured by the Lahaina Fire are not Hawaii citizens,” Spectrum has argued in an effort to remove a case from Maui to Honolulu federal court. Lawyers for the plaintiffs strong disagree. (Marina Riker/Civil Beat/2022)

There seems little question that the family in the suit – Amir Hossein Sheikhan, Tina Sikying Leung and their minor child – lived in Lahaina. But Spectrum argues that federal court is the proper forum in part because “the vast majority of potential plaintiffs who may claim to have been injured by the Lahaina Fire are not Hawaii citizens.”

This, Spectrum says, is “due in large part to Maui’s status as one of the most popular vacation destinations in the United States and the world.”

As a result, possible plaintiffs include “non-U.S. citizens, tourists, longer-term visitors domiciled in other states, out-of-state owners of vacation homes or rental properties, and out-of-state businesses that owned land or operated in and around Lahaina or otherwise claim to have suffered an economic loss because of the Lahaina Fire.”

The family’s lawyer said Spectrum’s allegation is so patently wrong that the company’s attorneys have violated the Federal Rules of Civil Procedure by presenting it to the court. Rule 11 says an attorney filing a document with the court certifies that “the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.”

The court also may issue sanctions against lawyers who violate the rule. In a letter dated Thursday, Creed told Spectrum’s attorneys that Creed would file a motion for sanctions if the lawyers do not withdraw the allegation by Wednesday. Creed, a Los Angeles-based lawyer licensed in Hawaii, also asked Spectrum to agree to remand the case to state court.

Cynthia Wong, a Maui lawyer representing other wildfire victims in other suits, agreed that Spectrum’s statement that most wildfire victims were not Hawaii citizens strained credulity.

“The accuracy of that statement is problematic; I’m trying to say that nicely,” she said, then added, “It’s offensive.”

State Also Is Opposing Removal

It’s not just Creed and his clients who oppose removing the case from Maui. The Attorney General’s Office also indicated it will oppose Spectrum’s attempt to drag the state into Honolulu federal court.

The U.S. Constitution’s 11th Amendment has been widely interpretated to prevent federal courts from hearing certain suits brought against states. Theoretically, Gov. Josh Green could waive the state’s right to this sovereign immunity. But that’s not going to happen in relation to Spectrum’s case, according to Day, the attorney general’s special assistant.

The state “does not waive its Eleventh Amendment immunity, will not consent to removal, and will be filing a motion to remand the case back to state circuit court,” Day wrote in an email.

Civil Beat’s coverage of Maui County is supported in part by grants from the Nuestro Futuro Foundation.

Read the notice of removal here:

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