United States District Court, D. Hawaii
CRAIG U. PELTIER, Plaintiff,
ALMAR MANAGEMENT, INC., Defendant.
ORDER GRANTING DEFENDANT ALMAR MANAGEMENT, INC.'S
RENEWED MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS WITH
LEAVE TO AMEND
DERRICK K. WATSON, UNITED STATES DISTRICT JUDGE
Management, Inc. (“Almar”) renews its Motion for
Partial Judgment on the Pleadings with respect to former
employee Craig Peltier's claim as a third-party
beneficiary of a contract between Almar and a state agency.
The Court finds that permitting Peltier's third-party
beneficiary claim to proceed, as currently alleged, would be
contrary to the Court's prior determination of, and
circumvent, the lack of a private right of action to enforce
Hawaii Revised Statutes (“HRS”) Section 103-55
for the failure to pay wages, because Peltier does not assert
a contractual breach independent of the statutory violation.
While Almar's Motion is therefore granted with respect to
Count II, Peltier is permitted leave to amend to attempt to
allege a third-party beneficiary claim within the limits
discussed more fully below.
the parties and the Court are familiar with the factual and
procedural background in this matter, the Court recounts only
those matters relevant to the instant Motion. Additional
background facts are set forth in the Court's January 17,
2017 Order, which dismissed Peltier's Count I claim for
violation of HRS § 103-55 and denied without prejudice
Almar's motion for judgment on the pleadings with respect
to Count II. See Peltier v. Almar Mgmt., Inc.,
- F.Supp.3d -, 2017 WL 187137, at *1 (D. Haw. Jan. 17, 2017),
Dkt. No. 23.
was employed by Almar from May 1, 2012 until his termination
on March 3, 2014 at the Kewalo Basin Harbor, a commercial
small boat harbor controlled by the State of Hawaii.
Complaint ¶¶ 8, 12. The state agency responsible
for the harbor, the Hawaii Community Development Authority
(“HCDA”), contracted with Almar to provide
operations and maintenance services.
Count II, Peltier seeks to enforce the terms of the contract
between Almar and the HCDA as a third-party beneficiary.
According to Peltier, the contract required Almar to enforce
relevant Hawaii Administrative Rules (“HAR”)
related to Kewalo Basin Harbor and to pay wages to its
employees consistent with HRS § 103-55, but that it
failed to do so. Complaint ¶¶ 9-10, 13. As detailed
more fully below, that contract, effective March 1, 2009,
provides in Appendix G (“Request for Proposal [RFP] for
Providing Operations and Management Services for Kewalo Basin
Harbor”), Section 2.21, that Almar shall comply with
Section 103-55 and notify its employees of both the
provisions of that section and also of the current wage rates
for public employees performing similar work. Almar Ex. A
(3/1/2009 Contract), Dkt. No. 31-3. In Section 2.22, the
contract provides for price adjustments due to wage increases
to public employees and a percentage increase for fringe
benefits, if applicable. Id. Peltier maintains that
these portions of the contract exceed Section 103-55's
statutory obligations. Almar, on the other hand, contends
that Peltier fails to assert any claims based on contractual
provisions independent of Section 103-55 and renews its
request for dismissal of Count II.
standard governing a Rule 12(c) motion for judgment on the
pleadings is functionally identical to that governing a Rule
12(b)(6) motion. United States ex rel. Caffaso v. Gen.
Dynamics C4 Sys., Inc., 637 F.3d 1047, 1054 n.4 (9th
Cir. 2011). For a Rule 12(c) motion, the allegations of the
nonmoving party are accepted as true, while the allegations
of the moving party that have been denied are assumed to be
false. See Hal Roach Studios v. Richard Feiner &
Co., 896 F.2d 1542, 1550 (9th Cir. 1989). A court
evaluating a Rule 12(c) motion must construe factual
allegations in a complaint in the light most favorable to the
nonmoving party. Fleming v. Pickard, 581 F.3d 922,
925 (9th Cir. 2009). Under Rule 12(c), “[j]udgment on
the pleadings is properly granted when, accepting all factual
allegations as true, there is no material fact in dispute,
and the moving party is entitled to judgment as a matter of
law.” Chavez v. United States, 683 F.3d 1102,
1108 (9th Cir. 2012) (quoting Fleming, 581 F.3d at
925); see also Jensen Family Farms, Inc. v. Monterey Bay
Unified Air Pollution Control Dist., 644 F.3d 934, 937
n.1 (9th Cir. 2011).
argues that Peltier's breach of contract claim should be
dismissed because it is based on nothing more than its
alleged failure to comply with HRS § 103-55. In
opposition, Peltier counters that the contract's
provisions (1) requiring Almar to give notice to employees of
the requirements of Section 103-55 and (2) allowing Almar to
seek a contract price adjustment based in part on the
percentage of fringe benefits paid, are substantive
obligations, in addition to those required by Section 103-55,
that Almar has breached. Because Count II as currently pled,
however, does not sufficiently allege breaches of these
provisions or any other breach of the contract independent of
the statutory obligations relating to prevailing wages under
Section 103-55, the Court grants Almar's Motion. Peltier
is granted leave to amend to attempt to allege a breach of
contract claim, with instructions below.
Count II Is Dismissed Without Prejudice
noted in the January 17, 2017 Order, guided by Astra USA,
Inc. v. Santa Clara Cty., Cal., 563 U.S. 110, 118
(2011), where no private right of action exists to enforce a
statutory violation, courts will not allow a third-party
breach of contract claim where “[t]he statutory and
contractual obligations, . . . are one and the same.”
2017 WL 187137, at *7 (quoting Astra, 563 U.S. at
118). To the extent Peltier's claim arising from
the contract between Almar and HCDA simply mirrors
Almar's obligation to pay wages in accordance with
Section 103-55, it is “in essence a suit to enforce the
statute itself, ” Astra, 563 U.S. at 118, and
is inconsistent with the legislative scheme, which does
not provide a private right of enforcement.
relevant statute provides in part-
Wages, hours, and working conditions of employees of
contractors performing services. (a) Before any offeror
enters into a contract to perform services in excess of $25,
000 for any governmental agency, the offeror shall certify
that the services to be performed will be performed under the
Wages. The services to be rendered shall be performed by
employees paid at wages or salaries not less than the wages
paid to public officers and employees for similar work.
HRS § 103-55.
Count II alleges that-
62. The Contract required Almar to pay its employees a wage
no less than the wage paid to a public employee ...