The opinion of the court was delivered by: J. Michael Seabright United States District Judge
ORDER GRANTING DEFENDANT GO WIRELESS, INC.'S MOTION TO DISMISS, AND GRANTING LEAVE TO AMEND ORDER GRANTING DEFENDANT GO WIRELESS, INC.'S MOTION TO DISMISS, AND GRANTING LEAVE TO AMEND
Before the court is Defendant Go Wireless, Inc.'s ("Go Wireless") Motion for Judgment on the Pleadings or to Dismiss, in which it asserts that Plaintiff Kameron Lum's ("Lum") Complaint fails to state a claim upon which relief can be granted.*fn1 The court heard the Motion on December 19, 2011, and orally granted the Motion. This Order provides an explanation of the oral rulings, and addresses certain matters that were not discussed at the hearing.
The court assumes the allegations of the Complaint as true for purposes of this Motion. See, e.g., Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.1 (9th Cir. 2003). The parties are familiar with the Complaint, and the court repeats here only relevant allegations.
Lum was employed as a wireless consultant with Go Wireless in 2009. Doc. No. 1-1, Compl. ¶¶ 8, 10. Lum's manager was David Fukino ("Fukino"). Id. ¶ 11. On June 8, 2009, Fukino "copied a posting from Craigslist, in the 'Men seeking men' section, entitled 'Westside Boiz (Kapolei)' and added a picture of [Lum] onto it, making it appear as though [Lum] posted the add (sic), seeking another man." Id. Lum did not know that Fukino did this and did not consent to Fukino's posting of the picture. Id. ¶ 12. "At the time [Lum] was in a committed relationship and was not seeking other men." Id. ¶ 13.
On June 10, 2009, Fukino sent Lum an email "that was supposed to be the Craigslist post" but, instead of containing Lum's picture, "contained a picture of a snowman." Id. ¶¶ 14-15. The email read "See attached file. This is not you. The one I have of you, I will send tomorrow. I have people behind me who are laying down on the bed, so I can't crop your picture in front of them." Id. ¶ 16. The same day, Fukino "sent [Lum] a Craigslist posting entitled 'The moment of truth,' which had a picture of [Lum] attached." Id. ¶ 17.
On June 11, 2009, Lum "confronted [Fukino] regarding this posting," id. ¶ 19, and "how [Fukino] managed to get [Lum's] photograph which he used to create the posting." Id. ¶ 22. After initially "denying any wrongdoing," Fukino admitted that he linked his phone to Lum's without Lum's knowledge and was able to access and copy photographs of Lum without permission. Id. ¶¶ 20, 23.
Six months later, on December 5, 2009, Lum reported these events by sending an email to Go Wireless Human Resource Manager Kristine Curtiss ("Curtiss"), "with a copy of the email that [Fukino] sent [Lum] and subsequently posted online." Id. ¶ 24. He also reported events to Go Wireless District Manager, Lena Standfield ("Standfield"). Id.
On December 15, 2009, Lum received an email containing a document indicating Go Wireless had conducted an internal investigation, indicating that Fukino would be transferred to a different location. Id. ¶¶ 27-29. By a December 16, 2009 email, Lum "expressed his disapproval" to Curtiss that Fukino was not terminated. Id. ¶ 29. Lum later emailed Curtiss and told her he was "uncomfortable working for" Go Wireless after the disposition of his complaint. Id. ¶ 31.
A few days later, Lum "was informed by a colleague" that Curtiss told store managers that she "wanted to get [Lum] fired." Id. ¶ 33. Curtiss told managers to "let her know if [Lum] showed up late for work." Id. "[Lum] felt retaliated against and did not feel comfortable working for [Go Wireless] . . . [and] tension escalated to the point where [Curtiss] yelled at [Lum] over the telephone." Id. ¶ 34. "[Lum] finally resigned on March 5, 2010, once [Fukino] appeared at the Kapolei location of [Go Wireless]. . . . Up until that point, [Lum] was promised that [Fukino] would never be at the same location as [Lum] at any time." Id. ¶ 35.
The Complaint alleges that Go Wireless and Fukino*fn2 (1) violated Title VII of the Civil Rights Act of 1964; (2) violated Hawaii Revised Statutes ("HRS") § 378-2; (3) committed intentional infliction of emotional distress ("IIED"); (4) breached a contract; and (5) violated HRS § 378-62 (Hawaii Whistleblower Protection Act).
Federal Rule of Civil Procedure 12(b)(6) permits a motion to dismiss a claim for "failure to state a claim upon ...