Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bosworth v. Maritime

United States District Court, D. Hawaii

October 31, 2016

LARRY NEAL BOSWORTH, Plaintiff,
v.
FOSS MARITIME, INLAND BOATMAN'S UNION, RODNEY ALLEN MYERS, WHITNEY WHIT OLSON, Defendants.

          ORDER DENYING PLAINTIFF'S OBJECTIONS AND AFFIRMING THE MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATION TO DENY PLAINTIFF LARRY BOSWORTH'S MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT

          Leslie E. Kobayashi, United States District Judge

         On July 29, 2016, the magistrate judge filed his Findings and Recommendation to Deny Plaintiff Larry Bosworth's Motion for Leave to File a Second Amended Complaint (“F&R”). [Dkt. no. 78.] Pro se Plaintiff Larry Neal Bosworth (“Plaintiff”) filed his objections to the F&R on August 29, 2016.[1] [Dkt. no. 82.] Defendants Foss Maritime Company (“Foss”), Rodney Allen Myers, and Whitney Olson (collectively “the Foss Defendants”) filed their response to the Objections (“Foss Response”) on September 19, 2016. [Dkt. no. 87.] Defendant Inlandboatmen's Union of the Pacific (“IBU”) filed two responses to the Objections (“IBU Response”) on September 20, 2016.[2] [Dkt. nos. 88, 89.] Although the 9/2/16 EO did not give him leave to file further briefing, on September 20, 2016, Plaintiff filed a document titled “Optional Statement in Resposne to Order Regarding Plaitniffs [sic] 8/29 Filing.” [Dkt. no. 90.] The Court has considered this matter without a hearing pursuant to Rule LR7.2(e) of the Local Rules of Practice of the United States District Court for the District of Hawai`i (“Local Rules”). After careful consideration of the Objections, the responses, and the relevant legal authority, the Objections are HEREBY DENIED, and the F&R is HEREBY ADOPTED for the reasons set forth below.

         BACKGROUND

         The instant case arises from a series of events that culminated in the allegedly wrongful termination of Plaintiff's employment with Foss and IBU's alleged failure to properly represent him in connection with his termination. The crux of Plaintiff's allegations is that Foss required him to undergo a training program, but the program was merely a pretext. According to Plaintiff, Foss did not actually provide him with any training and instead placed him in high-stress job situations where he was likely to fail. Foss intended to use Plaintiff's poor performance in the purported training program as the reason for his termination, but Plaintiff argues that this was merely a pretext.

         On March 21, 2016, this Court issued an order that granted in part and denied in part both the Foss Defendants' motion to dismiss and IBU's motion to dismiss (“3/21/16 Order”). [Dkt. no. 53.] In the 3/21/16 Order, this Court dismissed all of Plaintiff's claims pursuant to either Fed.R.Civ.P. 8(a)(2) or Fed.R.Civ.P. 12(b)(6). The dismissal was without prejudice, and this Court allowed Plaintiff to file a motion seeking leave to file a second amended complaint. [3/21/16 Order at 18-19.]

         On April 29, 2016, Plaintiff filed a document titled “Motion for Leave to File a Second Amended Complaint.” [Dkt. no. 57.] The magistrate judge liberally construed the document as both a motion seeking leave to amend (“Motion for Leave”) and a proposed Second Amended Complaint (“Proposed Complaint”). [F&R at 5.] The magistrate judge construed the Proposed Complaint as alleging the following claims: 1) a § 301 hybrid claim against Foss and IBU, pursuant to 29 U.S.C. § 185; 2) a wrongful termination claim against Foss, alleging a violation of Haw. Rev. Stat. § 378-32; 3) a breach of contract claim against Foss; 4) a fraud claim against Foss; 5) a claim that Myers and Olson willfully contributed to his wrongful termination; and 6) claims alleging the infliction of emotional distress. The magistrate judge noted that it was unclear whether Plaintiff was alleging claims under Hawai`i law for intentional infliction of emotional distress (“IIED”) and negligent infliction of emotional distress (“NIED”) claims or a claim for emotional distress under the Jones Act, 46 U.S.C. § 30104, et seq.[3] [Id. at 7-8.]

         The magistrate judge concluded that all of the claims in the Proposed Complaint were futile and recommended that this Court deny Plaintiff's Motion for Leave. The magistrate judge concluded that Plaintiff's hybrid § 301 claim was futile because he failed to commence this action within the applicable statute of limitations period. [Id. at 8-11.] The magistrate judge concluded that Plaintiff's § 378-32 claim was futile because subsection (a)(2) was the most closely applicable, and it prohibited termination because of an injury that is compensable under Haw. Rev. Stat. Chapter 386, which governs workers' compensation. The magistrate judge concluded that Chapter 386 did not apply to Plaintiff because he was a Jones Act seaman, and therefore he could not bring a § 378-32(a)(2) wrongful termination claim. [Id. at 11-12.] The magistrate judge interpreted Plaintiff's fraud claim and breach of contract claim as arising from his wrongful termination. He concluded that these claims failed to state a claim and, even if these claims could be amended, they would be preempted by § 301 of the LMRA.[4]He therefore concluded that those claims were futile. [Id. at 12-16.] As to Plaintiff's claim alleging that Myers and Olson willfully contributed to his wrongful termination, the magistrate judge construed this as arising under § 301, and concluded that the claim was futile because individuals are not proper parties in § 301 claims. [Id. at 16-17.]

         To the extent that the Proposed Complaint alleged a state law IIED claim, the magistrate judge concluded that it was futile because the allegations in the Proposed Complaint were not sufficient to state an IIED claim. [Id. at 18-20.] To the extent that Plaintiff alleged a claim for intentional infliction of emotional distress pursuant to the Jones Act, the magistrate judge noted that it was not clear whether such a claim was cognizable under the Jones Act. [Id. at 20-21.] However, if it is, it would require a “‘severe emotional injury' as the result of ‘unconscionable abuse' or ‘extreme and outrageous conduct.'” [Id. at 21 (quoting Yballa v. Sea-Land Servs., Inc., 919 F.Supp. 1428, 1434 (D. Hawai`i 1995)).] The magistrate judge concluded that Plaintiff's claim was futile because allegations in the Proposed Complaint did not rise to this level. [Id. at 21-22.] To the extent that Plaintiff alleged a state law NIED claim, the magistrate judge concluded that it was futile because Plaintiff did not allege a physical injury to Plaintiff or another person, which is a required element of an NIED claim. [Id. at 23.] To the extent that Plaintiff alleged a claim for negligent infliction of emotional distress pursuant to the Jones Act, the magistrate judge concluded that it was futile because Plaintiff did not allege the required element of physical contact. [Id. at 24.]

         Plaintiff raises the following objections to the F&R: 1) the magistrate judge erred when he concluded that Plaintiff's hybrid § 301 claim was untimely; 2) the Jones Act is not his exclusive remedy and does not preclude him from bringing a workers' compensation claim; 3) he must be allowed to pursue his Jones Act claims in this case because he tried to pursue state and federal workers' compensation claims, and he was told such claims were improper because he had to pursue Jones Act claims in federal court; 4) he can pursue other types of claims under § 378-32 besides a § 378-32(a)(2) claim; 5) the magistrate judge erred when he interpreted the Proposed Complaint as alleging that his wrongful termination caused him psychological injury - he was already suffering from a psychological injury caused by work-related stress when he was terminated; and 6) the magistrate judge misinterpreted the allegations in support of Plaintiff's fraud claim - it arises from fraudulent statements that were made to him when he called the employee hotline service. The Court will address each of Plaintiff's arguments in turn.

         STANDARD

         This Court reviews a magistrate judge's findings and recommendations under the following standard:

When a party objects to a magistrate judge's findings or recommendations, the district court must review de novo those portions to which the objections are made and “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667, 673 (1980); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (“[T]he district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise.”).
Under a de novo standard, this Court reviews “the matter anew, the same as if it had not been heard before, and as if no decision previously had been rendered.” Freeman v. DirecTV, Inc., 457 F.3d 1001, 1004 (9th Cir. 2006); United States v. Silverman, 861 F.2d 571, 576 (9th Cir. 1988). The district court need not hold a de novo hearing; however, it is the court's obligation to arrive at its own independent conclusion about those portions of the magistrate judge's findings or recommendation to which a party objects. United States v. Remsing, 874 F.2d 614, 616 (9th Cir.1989).

Muegge v. Aqua Hotels & Resorts, Inc., Civil 09-00614 LEK-BMK, 2015 WL 4041313, at *2 (D. Hawai`i June 30, 2015) (alteration in Muegge) (some citations omitted).

         DISCUSSION

         I. Hybrid § 301 Claim

          The magistrate judge was correct when he stated that there is a six-month statute of limitations for hybrid § 301 claims. See Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 989 n.39 (9th Cir. 2007) (stating that “hybrid § 301/fair representation claims are subject to the six-month statute of limitations set forth in section 10(b) of the National Labor Relations Act (‘NLRA'), 29 U.S.C. § 160(b)” (citing DelCostello v. Int'l Bhd. Of Teamsters, 462 U.S. 151, 169-70, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983))). The magistrate judge was also correct that Plaintiff's claim accrued on May 15, 2014, when IBU informed him that it was not pursuing a grievance on his behalf regarding his termination. See Harris v. Alumax Mill Prods., Inc., 897 F.2d 400, 404 (9th Cir. 1990). Plaintiff's Objections do not contest these specific conclusions. Instead, Plaintiff argues that: 1) the limitations period started anew when the 3/21/16 Order “suggested that [he] had a Hybrid 301 action”; [Objections at 5;] and 2) the Jones Act extends the statute of limitations period to three years.

         The Ninth Circuit has also described the accrual date of a hybrid § 301 claim as “when an employee knows or should know of the alleged breach of duty of fair representation.” Harris, 897 F.2d at 404. In the instant case, Plaintiff knew or should have known of IBU's alleged breach of its duty of fair representation when he received the May 15, 2014 letter, not when this Court noted in the 3/21/16 Order that he may have been trying to allege a hybrid § 301 claim. This Court rejects Plaintiff's argument that his hybrid § 301 claim accrued - or that the limitations period restarted - when this Court issued the 3/21/16 Order.

         As to Plaintiff's argument that the Jones Act extends the statute of limitations for his hybrid § 301 claim to three years, the United States Supreme Court has held that a court cannot apply the shorter statute of limitations for an unseaworthiness claim when the claim is brought together with a Jones Act negligence claim, which has a three-year statute of limitations. McAllister v. Magnolia Petroleum Co., 357 U.S. 221, 224-26 (1958). However, the following was a critical part of the Supreme Court's rationale for its holding:

The appropriate period of limitations for this action must be determined with an eye to the practicalities of admiralty personal injury litigation. When a seaman is injured he has three means of recovery against his employer: (1) maintenance and cure, (2) negligence under the Jones Act, and (3) unseaworthiness. . . . [I]f the seaman is to sue for both unseaworthiness and Jones Act negligence, he must do so in a single proceeding. That is a consequence of this Court's decision in Baltimore S.S. Co. v. Phillips, 274 U.S. 316, 47 S.Ct. 600, 71 L.Ed. 1069 (1927), which held that these claims were but alternative ‘grounds' of recovery for a single cause of action. A judgment in the seaman's libel for unseaworthiness was held to be a complete ‘bar' to his subsequent action for the same injuries under the Jones Act.

Id. at 224-25. There is no corresponding statute or caselaw requiring a seaman to bring a Jones Act claim together with his hybrid § 301 claim. This Court therefore rejects Plaintiff's argument that the applicable statute of limitations period for his hybrid § 301 claim is the three-year statute of limitations for a Jones Act claim. This Court DENIES Plaintiff's Objections as to the magistrate judge's analysis of the hybrid § 301 claim in the Proposed Complaint and ADOPTS the magistrate judge's conclusion that Plaintiff's hybrid § 301 claim in the Proposed Complaint is futile.

         II. Section 378-32 Claim

          The Proposed Complaint alleges “Labor law violations of Section 378-32, (HRS).” [Complaint at ¶ 1.1.] Section 378-32 states:

(a) It shall be unlawful for any employer to suspend, discharge, or discriminate against any of the ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.