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Bosworth v. Foss Maritime

United States District Court, D. Hawaii

February 28, 2017

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

          ORDER DENYING MOTION FOR RECONSIDERATION OF ORDER DENYING PLAINTIFF'S OBJECTIONS DATED 10-31-16

          Leslie E. Kobayashi United States District Judge

         On October 31, 2016, this Court issued its 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 (“10/31/16 Order”). [Dkt. no. 93.] On November 17, 2016, pro se Plaintiff Larry Bosworth (“Plaintiff”) filed a motion that primarily seeks reconsideration of the 10/31/16 Order (“Motion for Reconsideration”). [Dkt. no. 94.] On December 5, 2016, Defendants Foss Maritime Company (“Foss”), Rodney Allen Myers, and Whitney Olson (collectively, “Foss Defendants”) filed their memorandum in opposition, and Defendant Inlandboatmen's Union of the Pacific (“IBU”) filed its memorandum in opposition. [Dkt. nos. 98, 99.] Plaintiff filed his reply on December 22, 2016. [Dkt. no. 100.] The Court has considered the Motion for Reconsideration as a non-hearing matter 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 motion, supporting and opposing memoranda, and the relevant legal authority, Plaintiff's Motion for Reconsideration is HEREBY DENIED for the reasons set forth below.

         BACKGROUND

         The relevant background is set forth in the 10/31/16 Order, and this Court only repeats the events that are relevant to the Motion for Reconsideration.

         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”). [Findings and Recommendation to Deny Plaintiff Larry Bosworth's Motion for Leave to File a Second Amended Complaint (“F&R”), filed 7/29/16 (dkt. no. 78), 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.[1] [Id. at 7-8.]

         Plaintiff filed objections to the F&R (“Objections”) on August 29, 2016. [Dkt. no. 82.] In ruling on Plaintiff's Objections in the 10/31/16 Order, this Court: adopted the magistrate judge's conclusion that Plaintiff's hybrid § 301 claim in the Proposed Complaint was futile; adopted the magistrate judge's conclusion that Plaintiff's § 378-32 claim was futile; rejected Plaintiff's argument that he should be allowed to pursue a wrongful termination claim under either the Jones Act or general federal maritime law; adopted the magistrate judge's conclusion that Plaintiff's claims based on his psychological injury - under Hawai`i law and under the Jones Act - were futile; and affirmed the magistrate judge's conclusion that Plaintiff's claim alleging “[w]rongful termination by way of fraud” was futile.

         The 10/31/16 Order also pointed out that the magistrate judge concluded that the Proposed Complaint did not allege an age discrimination claim under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq., and Plaintiff did not raise an issue regarding the ADEA in his Objections. This Court therefore made no findings or conclusions about whether the Proposed Complaint included an ADEA claim and, if so, whether the claim was futile.

         This Court concluded that the Objections did not raise any grounds that warranted rejection of the magistrate judge's F&R and adopted the F&R in its entirety.

         In the Motion for Reconsideration, Plaintiff asks this Court to reconsider: the 10/31/16 Order “under a De Novo standard”; and the denial of his earlier request for the appointment of counsel.[2] [Motion for Reconsideration at 1.[3] Plaintiff argues that the request should not have been denied on the ground that his claims lack merit because his claims do have merit.

         As to the 10/31/16 Order, Plaintiff argues: this is a Jones Act case; he has a well documented injury that constitutes the severe emotional injury necessary to support a claim for intentional infliction of emotional distress pursuant to the Jones Act; this Court failed to consider evidence favorable to Plaintiff's claims, including a letter by Mike Clawson and evidence showing that Foss fabricated the allegations that he was not a competent tug operator; and his fraud claim was not limited to statements made during his call to the employee hotline. Plaintiff also argues a violation of “U.S. CODE 45, 352 Section 905(a)” and that Foss has wrongfully denied him temporary disability insurance benefits. [Motion for Reconsideration at 5-6.]

         DISCUSSION

         I. Applicable Standard of Review

         This Court has previously stated that a motion for reconsideration

“must accomplish two goals. First, a motion for reconsideration must demonstrate reasons why the court should reconsider its prior decision. Second, a motion for reconsideration must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision.” See Davis v. Abercrombie, Civil No. 11-00144 LEK-BMK, 2014 WL 2468348, at *2 (D. Hawaii June 2, 2014) (citation and internal quotation marks omitted). This district court recognizes three circumstances where it is proper to grant reconsideration of an order: “(1) when there has been an intervening change of controlling law; (2) new evidence has come to light; or (3) when necessary to correct a clear error or prevent manifest injustice.” Tierney v. Alo, Civ. No. 12-00059 SOM/KSC, 2013 WL 1858585, at *1 (D. Hawaii May 1, 2013) (citing School District No. 1J v. ACandS, Inc., 5 ...

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