United States District Court, D. Hawaii
ORDER (1) GRANTING DEFENDANT'S MOTION TO DISMISS
COMPLAINT, ECF NO. 8; AND (2) GRANTING PLAINTIFFS'
REQUEST TO AMEND COMPLAINT, ECF NO. 23
Michael Seabright Chief United States District Judge
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”),  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.
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.
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.
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.
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
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.
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.
STANDARD OF REVIEW
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)).
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).
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
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 ...