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McAllister v. Pepper

United States District Court, D. Hawaii

January 10, 2020

ANDREW L. PEPPER, ESQ., et al., Defendants.


          Derrick K. Wataon, United States District Judge.

         On 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. [2]

         I. The IFP Application

         Federal 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).

         Here, 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, [3] and McAllister has insufficient assets to provide security. As a result, the Court GRANTS the IFP Application, Dkt. No. 2-1.

         II. Screening

         The 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. 1982).

         McAllister's 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.

         In this 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).

         Once 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.[4] 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;[5] (6) negligent supervision; (7) negligent training;[6] (8) tortious interference;[7] (9) negligent supervision; (10) negligent training;[8] (11)-(13) violation of 42 U.S.C. Section 1981;[9] 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.

         The 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.

         “The 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)).

         In any 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 are satisfied.

         First, 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. ...

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