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Ferretti v. Beach Club Maui, Inc.

United States District Court, D. Hawaii

June 21, 2018

ANTHONY FERRETTI and ELAINE FERRETTI, Plaintiffs,
v.
BEACH CLUB MAUI, INC., Defendant.

          ORDER (1) GRANTING DEFENDANT'S MOTION TO DISMISS COMPLAINT, ECF NO. 8; AND (2) GRANTING PLAINTIFFS' REQUEST TO AMEND COMPLAINT, ECF NO. 23

          J. Michael Seabright Chief United States District Judge

         I. INTRODUCTION

         Plaintiffs Anthony Ferretti (“Mr. Ferretti”) and his wife, Elaine Ferretti (“Mrs. Ferretti”) (collectively “Plaintiffs”), filed this action against Defendant Beach Club Maui, Inc. (“BCM” or Defendant”), [1] asserting claims arising from an incident on January 18, 2016, during which Mr. Ferretti was severely injured in the ocean fronting Wailea beach on Maui. ECF No. 1. Defendant moves to dismiss the Complaint, arguing that Mr. Ferretti's claims and Mrs. Ferretti's derivative claims are barred by the “two-dismissal rule” set forth in Hawaii Rule of Civil Procedure (“HRCP”) 41(a)(1). Plaintiffs seek leave to amend the Complaint with respect to any non-derivative claim asserted by Mrs. Ferretti. ECF No. 23.

         For the reasons set forth below, the court finds that the two-dismissal rule applies to Mr. Ferretti's claims and Mrs. Ferretti's derivative claims and that those claims are therefore barred by the doctrine of claim preclusion. But the two-dismissal rule does not apply to any non-derivative claim asserted by Mrs. Ferretti. Thus, the court GRANTS Defendant's Motion to Dismiss the Complaint with prejudice as to Mr. Ferretti's claims and Mrs. Ferretti's derivative claims, and without prejudice to Mrs. Ferretti's non-derivative claim. The court further GRANTS Mrs. Ferretti leave to amend her non-derivative claim.

         II. BACKGROUND

         On January 18, 2016, Plaintiffs, who were passengers on a cruise ship operated by Norwegian Cruise Lines (“NCL”), bought and participated in a beach excursion operated by BCM. Compl. ¶¶ 7, 11-12, 14-18. Mr. Ferretti alleges that he was seriously injured during the course of this excursion. In 2017, Mr. Ferretti filed an action against NCL, BCM, and other entities asserting claims arising from the January 18, 2016 incident. See Ferretti v. NCL (Bahamas) Ltd., et al., Civ. No. 17-20202 (GAYLES) (S.D. Fla. 2017) (the “Florida action”), ECF No. 8-4. On May 2, 2017, Mr. Ferretti voluntarily dismissed his claims against BCM in that action. See ECF No. 8-5.

         On January 4, 2018, Mr. and Mrs. Ferretti filed an action in the State of Hawaii Circuit Court for the Second Circuit (Maui) asserting claims against BCM arising out of the same January 18, 2016 incident. See Ferretti v. Beach Club Maui, Inc., Civ. No. 18-1-0005 (the “state-court action”), ECF No. 8-6. Four days later, on January 8, 2018, Plaintiffs voluntarily withdrew their complaint in the state court action, see ECF No. 8-7, having filed their Complaint in this court approximately one hour earlier, see ECF No. 1.

         On March 23, 2018, Defendant filed the instant Motion to Dismiss (“Motion”) contending that Plaintiffs' claims are barred by the “two-dismissal rule.” ECF No. 8. Plaintiffs filed Responses on April 6 and 10, 2018. ECF Nos. 14, 15. On May 22, 2018, Defendant filed a Reply. ECF No. 22.

         On May 25, 2018, Plaintiffs filed a Request for Modification of Complaint (“Request”) seeking to amend allegations in support of Mrs. Ferretti's non-derivative claim. ECF No. 23. That same day, the court granted Defendant leave to file a Response to the Request. ECF No. 24. On June 1, 2018, Defendant filed its Response. ECF No. 28. And on June 5, 2018, Plaintiffs filed a Reply to Defendant's Response. ECF No. 31.

         Meanwhile, on May 30, 2018, Plaintiffs filed a “Legal Analysis of Dual Dismissal Concept, ” which was amended on May 31, 2018. ECF Nos. 25, 26. On May 31, 2018, the court directed Defendant to file a supplemental brief. ECF No. 27. Defendant filed its Supplemental Memorandum on June 6, 2018, ECF No. 32, and on June 8, 2018, Plaintiffs filed a Reply to Defendant's Supplemental Memorandum, ECF No. 33. The Motion and Request were heard on June 13, 2018. And on June 14, 2018, Plaintiffs and Defendant submitted additional case citations. See ECF Nos. 40, 41.

         III. STANDARD OF REVIEW

         Federal Rule of Civil Procedure 12(b)(6) permits a motion to dismiss for “failure to state a claim upon which relief can be granted[.]” A Rule 12(b)(6) dismissal is proper when there is either a “‘lack of a cognizable legal theory or the absence of sufficient facts alleged.'” UMG Recordings, Inc. v. Shelter Capital Partners, LLC, 718 F.3d 1006, 1014 (9th Cir. 2013) (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)).

         When reviewing a Rule 12(b)(6) motion to dismiss, the court may consider the affirmative defenses of claim and issue preclusion. See Holcombe v. Hosmer, 477 F.3d 1094, 1097 (9th Cir. 2007) (affirming Rule 12(b)(6) dismissal where claims were barred by claim preclusion); see also Seldin v. Seldin, 879 F.3d 269, 272 (8th Cir. 2018) (determining that a Rule 12(b)(6) motion is an appropriate vehicle for dismissal based on preclusion).

         The court's review is “limited to the face of the complaint, materials incorporated into the complaint by reference, and matters of which [it] may take judicial notice.” In re Rigel Pharm., Inc. Sec. Litig., 697 F.3d 869, 876 (9th Cir. 2012). Here, the court takes judicial notice of both the Florida and Hawaii state court dockets.[2]

         IV. DISCUSSION

         At issue is whether Hawaii's two-dismissal rule set forth in HRCP 41(a)(1)(B) bars Mr. Ferretti's claims and Mrs. Ferretti's derivative claims against BCM. The parties agree that the two-dismissal rule does not ...


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