Polido

dissenting:

I respectfully dissent from the majority’s holding that the district court must decide whether this aging litigation has to begin all over again in state court. I do not agree that declaratory judgment jurisdiction may have been inappropriately exercised in this ease. The unfortunate legal background of our circuit authority leading up to the majority’s decision is explained more fully in Government Employees Ins. v. Dizol, 108 F.3d 999 (9th Cir.1997), (Schroeder, J., dissenting).

The district court decided the critical issue of insurance coverage without the parties ever objecting to its exercise of jurisdiction under the Declaratory Judgment Act. Moreover, there is nothing in the record to suggest that the action was removed from state court for any improper purpose. Indeed, the district court at the time of removal was presented with a damage claim as well, so that there was no conceivable reason for any objection to the assumption of jurisdiction at that time.

The majority’s holding, that the district court should have made, sua sponte, findings on declaratory judgment jurisdiction after the damage claim had been dismissed, and after the motions for summary…

This action arises from the accidental shooting of Matthew Polido, by his father Solomon Polido, while they were returning from a hunting trip. Celeste Polido, individually and as guardian of Matthew, filed an action in a Hawaii state court against State Farm Mutual Automobile Insurance Co. (“State Farm”) in which she sought a declaration of coverage for Matthew’s injuries under an automobile insurance policy issued by State Farm to Celeste Polido and her husband. She also alleged several state law ■claims for monetary damages. State Farm removed the action to federal court pursuant to 28 U.S.C. § 1441 .

Nine months after Celeste Polido filed her claim for declaratory relief in state court, State Farm filed an action in federal court against Solomon, Celeste Polido’s husband, pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201 . State Farm requested a declaration of its duties, under that same insurance policy, to defend and indemnify Solomon in a pending state court tort action filed by Celeste Polido against her husband. The district court consolidated the two declaratory judgment actions, and entered an order granting summary judgment in favor of State Farm and against…