United States District Court, D. Hawaii
WILLIS C. MCALLISTER, Plaintiff,
ANDREW L. PEPPER, ESQ., et al., Defendants.
ORDER (1) GRANTING APPLICATION TO PROCEED WITHOUT
PREPAYMENT OF FEES OR COSTS; AND (2) DISMISSING ACTION
WITHOUT LEAVE TO AMEND. 
Derrick K. Wataon, United States District Judge.
January 3, 2020, Plaintiff Willis McAllister, proceeding
pro se, filed a civil complaint against eighteen
individuals and corporations, Dkt. No. 1, along with an
application to proceed in forma pauperis (“IFP
Application”), Dkt. No. 2-1, and a motion requesting
the Court to instruct the U.S. Marshal to execute service of
process on Defendants. Dkt. No. 4. Because the IFP
Application reflects that McAllister does not have the
ability to pay the filing fee in this case, the Court GRANTS
the IFP Application. However, because McAllister does not
allege a claim in his complaint, and no amendment could
possibly cure the defects identified below, the complaint is
DISMISSED without leave to amend. 
The IFP Application
courts can authorize the commencement of any suit without
prepayment of fees or security by a person who submits an
affidavit that demonstrates an inability to pay. See
28 U.S.C. § 1915(a)(1). While Section 1915(a) does not
require a litigant to demonstrate absolute destitution,
Adkins v. E.I. Du Pont de Nemours & Co., 335
U.S. 331, 339 (1948), the applicant must nonetheless show
that he is “unable to pay such fees or give security
therefor, ” 28 U.S.C. § 1915(a).
McAllister has made the required showing under Section
1915(a). In the IFP Application, Dkt. No. 2-1, McAllister
states that he is unemployed and the only monetary income he
receives is $1, 011 per month in social security benefits.
Further, McAllister states that he has $53 in a checking or
savings account, and owns no automobile, real property, or
financial instruments. In light of these facts,
McAllister's income falls below the poverty threshold
identified by the Department of Health and Human
Services' (“HHS”) 2019 Poverty Guidelines,
McAllister has insufficient assets to provide security. As a
result, the Court GRANTS the IFP Application, Dkt. No. 2-1.
standard for dismissal of a complaint that 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.
110-page Complaint, Dkt. No. 1, is a repetitious diatribe of
alleged grievances arising from the litigation in
McAllister v. Adecco Group N.A., No.
1:16-cv-00447-DKW-KJM [hereinafter Adecco I].
See, e.g., Dkt. No. 1 at 5 (“This case stems
from . . . Civil Case #1:16-cv-00447-JMS-KJM”). In
Adecco I, McAllister (proceeding pro se)
filed an employment discrimination lawsuit against Adecco
Group N.A., Adecco U.S.A., Inc., Garrett Mock, Curtis L.
Brunk, Trane Supply Co., and Trane U.S.A., Inc. See
Adecco I, No. 1:16-cv-00447 (D. Haw. Aug. 9, 2016), ECF
Nos. 1, 117. Over time, McAllister's claims and various
defendants were voluntarily dismissed or otherwise dismissed
by the Court. See Id. at ECF Nos. 43, 117, 126, 332.
After over two years of litigation, the dispute ended when
the Court granted summary judgment in favor of Adecco U.S.A.,
Inc., and Brunk. Adecco I, No. 1:16-cv-00447 (D.
Haw. Nov. 21, 2018), ECF Nos. 396, 405.
lawsuit, McAllister named the following eighteen Defendants:
Andrew L. Pepper (counsel for the Trane entities in
Adecco I); Jackson Lewis, P.C. (the law firm that
employed Pepper); the Jackson Lewis Board of Directors;
Vincent A. Cino; Sarah O. Wang (counsel for the Adecco
entities in Adecco I); Marr Jones Wang (MJW), LLLP
(the law firm that employed Wang); Barry W. Marr (senior
partner at MJW); Trane U.S.A., Inc.; Ingersoll Rand, Inc.,
N.A.; Ingersoll Rand, Inc., Ireland; Adecco Switzerland;
Adecco Hawaii, Adecco Switzerland; the Adecco Board of
Directors; Brunk; Chris Adams (supervisor at Adecco Hawaii);
Joyce Russell (president at Adecco Group U.S.); and Alain
Dehaze (chief executive officer at Adecco Group).
the Complaint, Dkt. No. 1, is stripped of its sprawling
invective, the gist of McAllister's lawsuit is that
Defendants “conspired” and “refused”
to arbitrate the claims in Adecco I “because
of [McAllister's] race, ” and therefore Defendants
breached the Arbitration Agreement, Dkt. No. 1-2, to which
McAllister is a party and “purposefully and
intentionally discriminated against [McAllister]” in
the “enforcement of [the Arbitration Agreement] . . .
on the basis of his race.” See, e.g.,
Dkt. No. 1 at 3, 29, 91-92, 101-02. McAllister's theory is
that Defendants “refused to disclose” the
Arbitration Agreement, and had they done so, it “would
have prevented years of unnecessary federal court litigation
cost and time” and “hundreds of thousands of
dollars . . . in legal fees from their clients.”
Id. at 3 (emphasis omitted). McAllister seeks $18
million in damages and purports to assert the following
fourteen causes of action: (1) breach of contract; (2)
violation of the Federal Arbitration Act (FAA), 9 U.S.C.
§§ 1-16; (3) malpractice; (4) unjust enrichment;
(5) tortious interference; (6) negligent supervision; (7)
negligent training; (8) tortious interference; (9) negligent
supervision; (10) negligent training; (11)-(13) violation of 42
U.S.C. Section 1981; and (14) civil conspiracy in violation of
42 U.S.C. Section 1985(1) and (2). The Court concludes
McAllister has no claim under any principle of law.
Arbitration Agreement Defendants allegedly breached is
attached to McAllister's Complaint. Dkt. No. 1-2. The
Agreement is “between Adecco U.S.A., Inc. it successors
and assigns and its officers, directors, employees,
affiliates, subsidiaries and parent companies (collectively
referred to as the “Company”), and Willis C.
McAllister.” Id. at 1. In entering the
Agreement, the parties agreed that, except for certain types
of claims listed in the Agreement, “any and all
disputes, claims or controversies” related to the
“employment relationship between the parties . . .
shall be resolved by binding arbitration.” Id.
The parties further agreed that the “Agreement shall be
enforceable under and subject to the [FAA].”
Id. Indeed, McAllister's Complaint relies
heavily on the FAA. Dkt. No. 1 at 33, 38, 42. As such, the
Court turns to the FAA.
overarching purpose of the FAA . . . is to ensure the
enforcement of arbitration agreements according to their
terms so as to facilitate streamlined proceedings.”
AT&T Mobility LLC v. Concepcion, 563 U.S. 333,
344 (2011); see Volt Info. Scis., Inc. v. Bd. of Trs. of
Leland Stanford Junior Univ., 489 U.S. 468, 474 (1989).
To that end, Section 2 of the FAA declares that a written
agreement to arbitrate in any contract involving interstate
commerce or a maritime transaction “shall be valid,
irrevocable, and enforceable, save upon such grounds as exist
at law or in equity for the revocation of any
contract.” 9 U.S.C. § 2. The FAA does not
establish a freestanding federal cause of action. See
Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp.,
460 U.S. 1, 26 n.32 (1983); United States v. Park Place
Assocs., 563 F.3d 907, 918 (9th Cir. 2009). Rather,
“[t]o enforce [Section 2], any party
‘aggrieved by the alleged failure, neglect, or refusal
of another to arbitrate under a written agreement
for arbitration may petition any United States
district court . . . for an order directing that such
arbitration proceed in the manner provided for in such
agreement.” Van Dusen v. United States
Dist. Court for the Dist. of Ariz., 654 F.3d 838, 842
(2011) (emphasis added) (quoting 9 U.S.C. § 4). Thus, at
best, McAllister may compel arbitration, but he cannot assert
a generic breach of contract claim. See Park Place
Assocs., 563 F.3d at 919 (noting that “[a]n action
under the FAA” is simply “an action in contract
to enforce the arbitration provision”); see also
Ling Wo Leong v. Kaiser Found. Hosp., 788 P.2d 164, 167
(Haw. 1990). Contrary to McAllister's theory,
“[w]hen a party agrees to arbitrate disputes, and then
breaches that agreement by filing a lawsuit, ‘[a]ny
extra expense incurred as a result of the [plaintiffs']
deliberate choice of an improper forum, in contravention of
their contract, cannot be charged to [the defendant].”
Newirth v. Aegis Senior Cmtys., LLC, 931 F.3d 935,
943 (9th Cir. 2019) (brackets in original) (quoting
Fisher v. A.G. Becker Paribas Inc., 791 F.2d 691,
698 (9th Cir. 1986)).
event, McAllister waived his right to enforce the arbitration
provision. Although McAllister complains that Defendants
never moved to compel arbitration in Adecco I, Dkt.
No. 1, ¶ 1.14, neither did McAllister.
“The right to arbitration, like any other contract
right, can be waived.” United States v. Park Place
Assocs., 563 F.3d 907, 921 (9th Cir. 2009). A party will
be found to have waived that right if there is: “(1)
knowledge of an existing right to compel arbitration; (2)
acts inconsistent with that existing right; and (3) prejudice
to the party opposing arbitration resulting from such
inconsistent acts.” Gutierrez v. Wells Fargo
Bank, 704 F.3d 712, 720-21 (9th Cir. 2012) (quoting
Fisher, 791 F.2d at 694). Here, all three elements
McAllister had knowledge of his right to arbitration.
Although McAllister avers that Defendants
“intentional[ly] refused to provide [McAllister] with
notice (or a copy)” of the Arbitration Agreement, which
McAllister alleges he “did not even know, existed
[sic], until [May 1, 2018]” when the
Arbitration Agreement was “given to him by Attorney
Sarah O. Wang, during his video-taped deposition, ”
Dkt. No. 1, ¶¶ 1.2, 1.13, McAllister's bald
assertion is belied by the Agreement itself. McAllister's
electronic signature, dated December 24, 2014, is at the
bottom of the Arbitration Agreement along with a Bates Number
from discovery. Dkt. 1-1 at 2. And after May 1, 2018-when
McAllister allegedly first learned of the Arbitration
Agreement-McAllister attached the Arbitration Agreement as an
exhibit to his “Compiled Schedule of Adverse Employment
Actions Taken Against Him, ” arguing, inter
alia, that Defendants “breached the
Arbitration agreement [sic].”
Adecco I, No. ...