United States District Court, D. Hawaii
WILLIS C. MCALLISTER, Plaintiff,
DISPUTE PREVENTION AND RESOLUTION, INC., et al., Defendants.
ORDER DISMISSING ACTION WITHOUT LEAVE TO
Derrick K. Watson United States District Judge
November 8, 2019, the Court dismissed the civil complaint
filed by pro se Plaintiff Willis McAllister and
granted him leave to file an amended complaint by December
16, 2019. On December 17, 2019, McAllister filed his first
amended complaint (FAC), Dkt. No. 19,  along with a
motion requesting that the Court instruct the U.S. Marshal to
execute service of process on Defendants Dispute Prevention
and Resolution, Inc.; Keith W. Hunter; and Stefan M. Reinke,
Esq. Dkt. No. 20. Because McAllister has failed to correct
the deficiencies in his complaint, and otherwise fails to
state a claim, this action is DISMISSED WITHOUT LEAVE TO
standard for dismissing a complaint on the grounds that it
fails to state a claim is the same under 28 U.S.C. Section
1915(e)(2)(B)(ii) and Fed.R.Civ.P. 12(b)(6). Barren v.
Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998);
Jones v. Schwarzenegger, 723 Fed.Appx. 523, 524 (9th
Cir. 2018); see also Wilhelm v. Rotman, 680 F.3d
1113, 1121 (9th Cir. 2012) (same standard under Section
1915A). The Court must take the allegations in the complaint
as true, excluding those allegations that are merely
conclusory, and if the complaint does not “contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face, ” the Court
must dismiss the action. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (internal quotation marks omitted); Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Although the Court liberally construes a pro se
Complaint, Eldridge v. Block, 832 F.2d 1132, 1137
(9th Cir. 1987), the Court cannot act as counsel for a
pro se litigant, such as by supplying the essential
elements of a claim. Pliler v. Ford, 542 U.S. 225,
231 (2004); Ivey v. Bd. of Regents of Univ. of
Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
McAllister's FAC, Dkt. No. 19, he asserts that in an
underlying employment discrimination case,  the court issued
a February 22, 2018 Order, requiring the parties to arbitrate
all claims and staying the case, pending the completion of
the arbitration. See Id. at 5, 13; Order,
McAllister v. Hertz Global Holdings, Inc., No.
1:17-cv-00146 (D. Haw. Feb. 22, 2018), ECF No. 68
[hereinafter “Hertz”]. McAllister
alleges that on October 18, 2018, he entered into a contract
with Defendants DPR, Hunter, and Reinke, when he sent a
signed agreement via email to Kelly Bryant at DPR.
See Dkt. No. 20 at 7. Under this “contract,
” McAllister alleges the parties agreed to participate
in binding arbitration with Reinke serving as the arbitrator.
1, 2019, Defendant Hunter, President of DPR, sent a letter to
the parties in the underlying case, informing them that DPR
and Reinke had “made the decision to withdraw”
and that they would “refund in full all deposits
received.” Dkt. No. 1-7; see Dkt. No. 19 at
11. McAllister then filed a motion in the underlying action,
requesting that the court order Reinke and Hunter to (a) show
cause why they should not be sanctioned, and (b) explain why
they withdrew from the arbitration process. Hertz,
No. 1:17-cv-146 (D. Haw. July 31, 2019), ECF No. 60. The
motion was denied, the court reasoned, because it lacked
jurisdiction to intervene. Entering Order at 1,
Hertz, No. 1:17-cv-146 (D. Haw. Aug. 7, 2019), ECF
No. 62. McAllister's lawsuit in Hertz remains
stayed pending the completion of arbitration.
instant action, McAllister seeks $1.5 million in damages from
Defendants DPR, Hunter, and Reinke. Dkt. No. 19 at 22.
McAllister avers Defendants breached their contract to
arbitrate the dispute when they withdrew from the arbitration
process. Id. at 11, 15. Because McAllister is
African American and Defendants did not offer a reason for
withdrawing, McAllister maintains that Defendants withdrew
“because of his race.” Id. McAllister
asserts claims for breach of contract in violation of 28
U.S.C. Section 1332; violation of 42 U.S.C. Section
1981; and conspiracy to violate civil rights in
violation of 42 U.S.C. Section 1985. The FAC, however, is
plagued by the same defects previously identified by the
Court, Dkt. No. 13; that is, McAllister's “bare
assertions . . . amount to nothing more than a
‘formulaic recitation of the elements' of a
constitutional discrimination claim.” Iqbal,
556 U.S. at 681 (quoting Twombly, 550 U.S. at 555).
Breach of Contract
has no claim under 28 U.S.C. Section 1332 because that
statute does not establish substantive rights or any cause of
action; Section 1332 merely grants federal courts the power
to exercise jurisdiction over state law claims
(e.g., breach of contract claims) between citizens
of different states where the amount in controversy exceeds
$75, 000, exclusive of interests and costs. See Exxon
Mobil Corp. v. Allapattah Servs., 545 U.S. 546, 552-53
(2005). To sustain a claim for breach of contract, a
plaintiff must allege: (1) the existence of a
contract; (2) plaintiff's performance; (3)
defendant's failure to perform an obligation under the
contract; and (4) damages as a result of failure to perform.
See Calipjo v. Purdy, 439 P.3d 218, 225 (Haw. 2019).
The FAC founders on elements one, three and four.
although McAllister alleges the existence of a signed
contract with Defendants by virtue of his October 18, 2018
email, there is not an enforceable contract because nothing
in the FAC suggests that the purported contract was supported
by consideration. Calipjo, 439 P.3d at 233;
Douglass v. Pflueger Haw., Inc., 135 P.3d 129, 143
(Haw. 2006) (defining consideration).
as in McAllister's original complaint, the FAC does not
contain facts showing that Defendants had an obligation under
the terms of the contract to arbitrate the case, much less
that, according to the terms of the agreement, Defendants
breached their obligation. See Johnson v. Fed. Home Loan
Mortg. Corp., 793 F.3d 1005, 1007 (9th Cir. 2015) (state
law breach of contract claim properly dismissed because
complaint did not allege any facts that showed defendant had
a contractual duty to service loan). It is telling that, for
the second time, the terms of any agreement, and the
agreement itself, are absent from the FAC.
the FAC does not identify damages that McAllister incurred as
a result of Defendants' alleged withdrawal from the
arbitration process. Defendants agreed to reimburse any
deposits made to the parties when they stated their intent to
withdraw, there can hardly be a serious dispute that
Defendants are not the only arbitrators locally available,
and there has been no consequence in Hertz as a
result of the arbitration delay. The court in that case
continues to hold the matter in abeyance pending completion
of the arbitration process.
foregoing reasons, McAllister has again failed to state a
claim for breach of contract.
Claim Under 42 ...