Reimer v. Kuki'o Golf And Beach Club, Inc. et al
Filing
41
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT re: 19 . Signed by JUDGE LESLIE E. KOBAYASHI on 2/7/2013. ~ Order follows hearing held on 2/5/2013. Minutes: do c no. 40 ~ (afc) CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JEFFREY REIMER, an
individual,
)
)
)
)
Plaintiff,
)
vs.
)
)
KUKI’O GOLF AND BEACH CLUB,
)
)
INC., a Hawaii corporation;
MELANIE AIONA, an individual; )
)
DOES 1-10; and ROE
)
CORPORATIONS 1-10,
)
)
Defendants.
_____________________________ )
CIVIL 12-00408 LEK-BMK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT
Before the Court is Plaintiff Jeffrey Reimer’s
(“Reimer”) Motion for Summary Judgment (“Motion”), filed on
November 5, 2012.
[Dkt. no. 19.]
Defendants Kuki’o Golf and
Beach Club, Inc. (“the Club”), and Melanie Aiona (collectively,
“Defendants”) filed a memorandum in opposition to the motion
(“Opposition”) on January 14, 2013 [dkt. no. 35], and Reimer
filed his reply on January 18, 2013.
[Dkt. no. 36].
The Motion came on for hearing on January 5, 2013.
Appearing on behalf of Plaintiff were Lyle S. Hosoda, Esq., and
Raina P.B. Gushiken, Esq., and appearing on behalf of Defendants
was Leighton K. Oshima, Esq.
After careful consideration of the
Motion, supporting and opposing memoranda, and the arguments of
counsel, the Court HEREBY GRANTS IN PART AND DENIES IN PART the
Motion for the reasons set forth below.
I.
Background
Reimer filed his Complaint in the instant case on
July 19, 2012.
In the Complaint, Reimer alleges that he and his
wife are members at the Kuki’o Golf and Beach Club on the island
of Hawai`i.
A number of years ago, Reimer suffered a severe
closed head injury and, as a result, suffers from Traumatic Brain
Injury (“TBI”).
Because of Reimer’s TBI, he “is prone to make
off-hand comments.”
[Compl. at ¶¶ 7, 9-11]
On January 13, 2012, Reimer made such a comment when
engaging in a conversation with his therapist, Ms. Hoyle, at the
Club.
Defendant Aiona overheard the comment and complained to
the Club’s management that Reimer had “verbally assaulted
her. . ., even though Reimer never talked to, or engaged in a
conversation with [her.]”
[Id. at ¶ 29.]
Reimer alleges that
Defendant Aiona has “unreasonable and unjustified sensitivities
to statements she overhears from Club members and guests” as a
result of her previous involvement in a 2010 employment
discrimination arbitration (the “Van Calcar Arbitration”).
[Id.
at ¶ 31.]
Reimer alleges that, as a result of Aiona’s complaint
to management, Mike Meldman sent a January 15, 2012 letter on
behalf of the Club stating that Aiona had suffered from “severe
distress,” and informing Reimer that his Club membership was
2
“suspended effective immediately.”
[Id. at ¶ 32.]
On
January 23, 2012, Reimer responded to the Club’s letter with an
apology and a clarification that his remarks were not directed
toward Aiona, and that in any even they were the result of his
TBI.
In his response, he stated that his suspension was a
violation of the Club’s Bylaws, and requested a formal hearing
under the Club’s governing documents.
[Id. at ¶ 33.]
Reimer
states that the Club’s Bylaws require that a Club member “enjoy
all privileges of the Club to which the member is entitled prior
to such complaint during the pendency of an investigation.”
[Id.
at ¶ 34 (quoting Motion, Exh. 1 (Bylaws, Article XVII) at 16).]
The Club responded by letter on February 2, 2012,
“demand[ing] Reimer submit himself to demeaning supervision while
on the Club’s premises because of his disability” and requesting
that he again apologize to Aiona.
The letter did not reinstate
Reimer’s membership privileges or set a date for a hearing
regarding his suspension.
Reimer alleges that “while Reimer was
suspended, Kuki’o Corp employees made defamatory and false
comments concerning Reimer, and his family as a result of the
alleged incident.”
[Id. at ¶¶ 36-39.]
The Complaint asserts the following claims: violation
of the Americans with Disabilities Act (“ADA”) (Count I); breach
of contract (Count II); breach of the covenant of good faith and
fair dealing (Count III); defamation (Count IV); intentional
3
misrepresentation (Count V); negligent misrepresentation (Count
VI); negligent hiring and retention (Count VII); negligent
supervision (Count VIII); negligence (Count IX); and declaratory
relief (Count X).
II.
Motion
In the instant Motion, Reimer seeks an order from this
Court rejecting the Defendants’ affirmative defense that
alternative dispute resolution is required under the Club’s
Bylaws, and stating that none of his claims are required to be
mediated or arbitrated pursuant to the Club’s Bylaws.
Article XXI of the Club’s Bylaws states, in part:
Each and every dispute, claim or other matter of
disagreement concerning the rights, obligations or
remedies of the Club, its officers, directors,
affiliates and any Club Member or applicant for
membership relating to or arising out of the
Membership Plan, Bylaws or the Rules and
Regulations or any transaction contemplated by the
Membership Plan, Bylaws or the Rules and
Regulations, but not involving a discipline matter
or non-payment or a personal injury claim against
the Company or the Club, shall only be decided by
mediation, and if necessary, arbitration.
[Mem. in Supp. of Motion at 2; Motion, Exh. 1 (Bylaws) at 19-20.]
Reimer argues that dispute resolution is not mandated
for the claims in the Complaint because Reimer’s claims do not
arise out of the Club’s governing documents and/or they involve a
disciplinary matter.
[Mem. in Supp. of Motion at 4.]
Reimer
emphasizes that all of his claims arise out of him “being
discriminated against by Kuki’o for his disability and his
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subsequently being disciplined for the manifestation of his
disability.”
[Id. at 5.]
Reimer therefore requests that the Court grant his
Motion as to Defendants’ affirmative defense that dispute
resolution is required in this case.
A.
Defendants’ Memorandum in Opposition
In their Opposition, Defendants argue that the claims
in Reimer’s Complaint are based upon non-disciplinary matters
and, as such, the dispute resolution provision applies.
Specifically, Defendants argue that Reimer alleges violations of
federal law, torts committed by Club employees, and a failure by
the Club to exercise reasonable care in hiring, retaining, and
supervising its employees.
To the extent any of these
allegations rely upon the Club’s liability for the actions of its
employees (i.e., Count IV (defamation), Count V (intentional
misrepresentation), Count VI (negligent misrepresentation), Count
VII (negligent hiring and retention), Count VIII (negligent
supervision), and Count IX (negligence)), these claims do not
relate to disciplinary matters and are thus subject to mandatory
dispute resolution.
[Mem. in Opp. at 3-7.]
Defendants emphasize that federal policy favors
arbitration.
They argue that the dispute resolution provision in
the Bylaws is ambiguous as to whether the instant dispute should
be mediated and/or arbitrated and, as such, the ambiguity should
5
be resolved in favor of dispute resolution.
C.
[Id. at 10.]
Reply
In his Reply, Reimer argues that the dispute resolution
provision in the Bylaws is not ambiguous, and clearly sets forth
the instances in which alternative dispute resolution is
required.
[Reply at 3-4.]
Reimer goes on to reiterate that the
allegations in the Complaint clearly involve a disciplinary
matter.
As such, Reimer argues that dispute resolution is not
required under the Bylaws.
[Id. at 4.]
Riemer thus urges the
Court to grant the Motion and rule that none of his claims fall
under the dispute resolution clause.
DISCUSSION
Reimer argues that, according to the plain language of
the Club Bylaws, the claims in his Complaint do not fall under
the mandatory dispute resolution clause.
Hawai`i has adopted the
Uniform Arbitration Act,1 codified in Haw. Rev. Stat. Chapter
658A.
Under this Act, an agreement to arbitrate a controversy
existing or arising between the parties is “valid, enforceable,
and irrevocable except upon a ground that exists at law or in
equity for the revocation of a contract.”
H.R.S. § 658A–6(a);
see also Metzler Contracting Co. v. Stephens, No. CV 07-00261 HG-
1
The instant dispute is governed by Haw. Rev. Stat. Ch.
658A, as opposed to the Federal Arbitration Act, because the
contract at issue does not involve a maritime transaction or a
transaction in interstate commerce. See 9 U.S.C. § 2.
6
LEK, 2007 WL 1977732, at *3 (D. Hawai`i July 3, 2007)
(acknowledging Hawaii’s “strong public policy in favor of
arbitration”).
“Although the public policy underlying Hawai`i law
strongly favors arbitration over litigation, the mere existence
of an arbitration agreement does not mean that the parties must
submit to an arbitrator disputes which are outside the scope of
the arbitration agreement.”
Haw. Med. Ass’n v. Haw. Medical
Service Ass’n, Inc., 133 Hawai`i 77, 92, 148 P.3d 1179, 1194
(2006) (internal quotations omitted).
Whether an issue falls
within the scope of an agreement to arbitrate “depends on the
wording of the contractual agreement to arbitrate.”
Id.
(citing
Rainbow Chevrolet, Inc. v. Asahi Jyuken (USA), Inc., 78 Hawai‘i
107, 113, 890 P.2d 694, 700 (Ct. App. 1995), superseded by
statute as stated in, Ueoka v. Szymanski, 107 Hawai‘i 386, 114
P.3d 892 (2005)).
A court should interpret the agreement terms
according to their plain, ordinary meaning and accepted use in
common speech.
See State Farm Fire & Cas. Co. v. Pac. Rent–All,
Inc., 90 Hawai`i 315, 324, 978 P.2d 753, 762 (1999).
The Court therefore looks to the language of the Bylaws
to determine whether Plaintiff’s claims fall within the dispute
resolution provision.
Article XXI of the Club’s Bylaws states,
in part:
Each and every dispute, claim or other matter of
disagreement concerning the rights, obligations or
remedies of the Club, its officers, directors,
7
affiliates and any Club Member or applicant for
membership relating to or arising out of the
Membership Plan, Bylaws or the Rules and
Regulations or any transaction contemplated by the
Membership Plan, Bylaws or the Rules and
Regulations, but not involving a disciplinary
matter or non-payment or a personal injury claim
against the Company or the Club, shall only be
decided by mediation, and if necessary,
arbitration. The dispute resolution procedures
described herein shall be the sole remedy
available to the parties involved; provided,
however, that the Club shall have the right to
collect, through a court proceeding, any Club
account or other amount owing as a result of loss
or destruction of the Club’s property or injury
caused to any party by a Club Member.
[Mem. in Supp. of Motion at 2; Motion, Exh. 1 (Bylaws) at 19-20.]
Reimer argues that all of the claims in the Complaint fall under
the exception from mandatory dispute resolution for a
“disciplinary matter.”
The Court addresses each of Reimer’s
claims, in turn.
I.
Count I: Violation of the ADA
Reimer’s first claim is for a violation of the ADA.
Specifically, Reimer alleges that he suffers from an impairment
(namely, TBI), and that the Club has discriminated against him
because of that impairment by failing to make accommodations
allowing him equal enjoyment of the Club facilities, and denying
him equal participation in the Club’s services and facilities.
[Compl. at ¶¶ 41-49.]
The underlying conduct that gives rise to Reimer’s ADA
claim is the Club’s suspension of his membership in response to
8
Defendant Aiona’s complaint about his off-hand remark.
As such,
Count I of Reimer’s Complaint clearly arises from a disciplinary
matter.
Article XVII of the Club Bylaws, titled “Discipline,”
sets forth the “Grounds for Discipline” under the Bylaws.
Among
these are listed “unsatisfactory behavior,” “failure to abide by
the rules and regulations [of the Club,]” “treatment of the
personnel or employees of the Club or the Company in an
unacceptable manner,” and “verbal abuse of the Members,
governors, directors or officers of the Club.”
[Mem. in Supp. of
Motion at 2; Motion, Exh. 1 (Bylaws) at 15-16.]
The grounds for
the Club’s suspension of Reimer – his making an allegedly
offensive remark to Aiona, a Club employee – would seem to fall
within one or more of these enumerated “Grounds for Discipline.”
Further, the “Discipline” section of the Bylaws expressly lists
suspension as a potential disciplinary action under the Bylaws.
[Id. at 16.]
Thus, while there is no evidence before the Court
at this time that the Club complied with the disciplinary
procedure set forth in Article XVII of the Bylaws, it is clear
that the Club’s actions in suspending Reimer for his off-hand
comment fall within the definition of the term “disciplinary
matter” as that term is used in the Bylaws.
The Court therefore finds that Count I of Reimer’s
Complaint falls within the “disciplinary matters” exception of
the dispute resolution provision in the Bylaws.
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As such, the
Court GRANTS Reimer’s Motion as to Count I of the Complaint, and
finds that Article XXI of the Bylaws does not mandate dispute
resolution for Count I.
II.
Count II: Breach of Contract
Count II of the Complaint is a breach of contract claim
against the Club.
Reimer alleges that the Club “breached its
Governing Documents by, among other things, suspending Reimer
after the alleged incident, not providing Reimer with a hearing
when requested, [and] not allowing Reimer access to Club
facilities while it was investigating the alleged incident . . .”
[Compl. at ¶¶ 54-59.]
As was true of Count I, the conduct underlying Count II
of the Complaint involves the disciplinary actions taken against
Reimer for his off-hand remark.
In addition, Count II also rests
upon Reimer’s allegations that the Club failed to afford him the
procedural protections set forth in Article XVII of the Bylaws,
namely, that the Club failed to provide him with a formal hearing
regarding his suspension, and failed to allow him use of the Club
while the complaint against him was being investigated.
¶¶ 33-35, 38.]
[Compl.
Because, as discussed above, these actions fall
squarely within the disciplinary matters contemplated in Article
XVII of the Bylaws, the Court FINDS that Count II of Reimer’s
Complaint similarly meets the exception for “disciplinary
matters” in the dispute resolution provision of the Bylaws.
10
As
such, the Court GRANTS Reimer’s Motion as to Count II and FINDS
that Count II is not subject to mandatory dispute resolution
under Article XXI of the Club Bylaws.
III. Count III: Breach of Fair Dealing
In Count III, Reimer alleges that the Club breached the
implied covenant of good faith and fair dealing by failing to
perform its contractual obligations in a manner that was
“[]faithful to the purpose fo the contract.”
67.]
[Compl. at ¶¶ 62-
This claim, similar to those in Count II, is based upon the
underlying actions taken by the Club that were disciplinary in
nature, namely, Reimer’s suspension from the Club after Aiona’s
complaint about his off-hand comment, and the Club’s failure to
provide Reimer with a formal hearing and other procedural
protections as contemplated in Article XVII of the Bylaws.
As
discussed above, the Club’s suspension of Reimer because of
Aiona’s complaint against him was clearly disciplinary in nature,
as that term is defined in the Bylaws themselves.
As such, the
Court FINDS that Count III falls within the “disciplinary matter”
exception to the dispute resolution provision of the Bylaws.
The
Court therefore GRANTS Reimer’s Motion with respect to Count III,
and FINDS that Count III is not subject to mandatory dispute
resolution under Article XXI of the Club Bylaws.
IV.
Count IV: Defamation
Reimer’s fourth claim alleges that Aiona and other Club
11
employees made “false and defamatory statements concerning
Reimer.”
[Compl. at ¶¶ 39, 68-73.]
This allegation, unlike
those in Counts I through III, does not arise from the
disciplinary actions taken by the Club against Reimer.
Rather,
the allegations underlying Count IV deal with defamatory
statements allegedly made by Defendant Aiona and other Club
employees after Reimer had been suspended.
Any disparaging
statements Defendant Aiona or other Club employees may have made
regarding Reimer are entirely separate from the Club’s
disciplinary process and actions in suspending Reimer’s
membership because of the complaint about his off-hand comment.
The Court therefore FINDS that Reimer’s defamation claim does not
fall within the “disciplinary matter” exception to the general
mandatory dispute resolution provision in the Bylaws.
Likewise,
Count IV does not involve “non-payment or a personal injury
claim” against the Club, the only other exceptions to the
otherwise broad mandatory dispute resolution provision in Article
XXI of the Bylaws.
[Mem. in Supp. of Motion at 2; Motion, Exh. 1
(Bylaws) at 19-20.]
As such, the Court FINDS that the claim in Count IV of
Reimer’s Complaint does not fall within any of the exceptions to
the Bylaws mandatory dispute resolution provision.
The Court
thus DENIES Reimer’s Motion as to Count IV and FINDS that the
claims in Count IV are subject to mandatory dispute resolution
12
under Article XXI of the Club Bylaws.
V.
Counts V and VI: Intentional and Negligent Misrepresentation
Counts V and VI are claims for intentional and
negligent misrepresentation, respectively.
It appears from the
Complaint that these claims, like Count IV, relate to the
allegedly defamatory statements about Reimer made by Aiona and
other Club employees after Reimer had been suspended.
¶¶ 74-87.]
[Compl. at
As such, and as discussed above, these claims do not
arise out of the disciplinary action taken against Reimer.
The
Court thus DENIES Reimer’s Motion as to Counts V and VI and FINDS
that the claims in Counts V and VI are subject to mandatory
dispute resolution under Article XXI of the Club Bylaws.
VI.
Counts VII and VIII: Negligent Hiring and Retention and
Supervision
Count VII of the Complaint alleges that the Club was
negligent in hiring and retaining Aiona to serve as the Club’s
spa manager.
Reimer further claims that the Club failed to
exercise reasonable care in selecting, hiring, and retaining
Aiona as an employee generally, and that the Club knew or should
reasonably have known that Aiona would “act tortiously by, among
other things, inappropriately carrying out her employment
position as well as targeting guests for unwarranted discipline.”
[Compl. at ¶¶ 89-92.]
Count VIII of the Complaint alleges that
the Club was negligent in supervising Defendant Aiona, that the
Club knew or should have known that she would act tortiously,
13
that it had the authority to keep her from doing so, and that it
failed to exercise due care by intervening and regulating her
conduct.
[Compl. at ¶¶ 95-101.]
Reimer’s allegations in these two counts deal with the
Club’s conduct in hiring and supervising its employees,
specifically, the Club’s hiring and retention of Defendant Aiona.
They do not arise out of the Club’s decision to discipline Reimer
by suspending his membership, or the Club’s alleged conduct in
failing to provide Reimer with procedural protections before
doing so.
As such, the Court FINDS that Reimer’s claims in
Counts VII and VIII of the Complaint do not involve a
disciplinary matter such that an exception to the general
mandatory dispute resolution provision is applicable.
The Court
therefore DENIES Reimer’s Motion as to Counts VII and VIII of the
Complaint and FINDS that these claims are subject to mandatory
dispute resolution under Article XII of the Club Bylaws.
VII. Count IX: Negligence
Reimer’s ninth claim is for negligence.
Reimer claims
that the Club and Aiona owed a duty of care to all Club members
and guests, and that Aiona failed to meet her duty of care with
respect to Reimer “because of her acts and omissions surrounding
the alleged incident on January 13, 2012.”
105.]
[Compl. at ¶¶ 104-
Reimer further alleges that the Club failed to meet its
duty of care with respect to Reimer because of its handling of
14
Aiona’s complaint against him, its suspension of Reimer’s
membership, and its handling of the Van Calcar Arbitration
settlement.
[Compl. at ¶¶ 106.]
The portion of Reimer’s negligence claim relating to
Defendant Aiona’s actions appears to be based upon Reimer’s
allegations that Aiona made defamatory statements about Reimer
after his suspension.
As such, and as discussed above, this
portion of Count IX is not disciplinary in nature and does not
arise out of the disciplinary actions taken by the Club against
Reimer.
The Court thus FINDS that the portion of Count IX based
upon Defendant Aiona’s negligence does not fall under the
“disciplinary matter” exception to the general dispute resolution
provision and, thus, is subject to mandatory dispute resolution
under Article XXI of the Club’s Bylaws.
Similarly, the portion of Count IX based upon Reimer’s
allegations that the Club mishandled the Van Calcar Arbitration
settlement is likewise unrelated to the Club’s disciplinary
actions against Reimer.
In the Complaint, Reimer alleges that
Van Calcar was terminated from the Club based upon Defendant
Aiona’s complaints concerning her, and that the Club acted
negligently in not providing equity members of the Club with the
details of the confidential settlement agreement between Van
Calcar and the Club.
[Compl. at ¶¶ 23-26.].
Reimer claims that
the Club’s handling of the Van Calcar Arbitration settlement was
15
negligent.
This portion of Count IX does not arise from the
disciplinary actions taken by the Club against Reimer, nor does
it directly arise out of the disciplinary actions the Club took
against Van Calcar; rather, based on the Complaint, it appears
Reimer simply alleges that the Club was negligent in its failure
to reveal the details of its settlement with Van Calcar.
As
such, the Court FINDS that the portion of Count IX relating to
the Van Calcar Arbitration does not fall within the “disciplinary
matters” exception to the general dispute resolution provision in
Article XXI of the club Bylaws.
As to the portion of Count IX alleging that the Club
was negligent in its handling of the complaint against Reimer and
Reimer’s subsequent suspension, this portion of the Complaint
clearly deals with disciplinary matters.
As discussed above, the
reason for Reimer’s suspension, and the use of suspension in
response to Aiona’s complaint against him, clearly fall within
the definition of “disciplinary matter[s]” contemplated by the
Bylaws.
As such, the Court FINDS that the portion of Count IX
alleging negligence against the Club for “the disciplinary action
taken against Reimer [and] its violation of the Club’s Governing
Documents” is a “disciplinary matter” for purposes of Article XXI
of the Bylaws and, as such, is not subject to mandatory dispute
resolution under that provision.
16
The Court thus DENIES Reimer’s motion as to the
portions of Count IX claiming negligence against Defendant Aiona
and claiming negligence against the Club based upon its handling
of the Van Calcar Arbitration.
The Court GRANTS Reimer’s motion
as to the portion of Count IX claiming negligence against the
Club for its handling of the disciplinary matter.
CONCLUSION
On the basis of the foregoing, Reimer’s Motion for
Summary Judgment, filed on November 5, 2012, is HEREBY GRANTED IN
PART AND DENIED IN PART.
The Court GRANTS Reimer’s Motion and
finds the dispute resolution provision is not applicable to
Counts I, II, III, and the portion of Count IX claiming
negligence against the Club for its handling of Reimer’s
suspension.
The Court DENIES Reimer’s Motion and finds the
dispute resolution provision is applicable to Counts IV, V, VI,
VII, VIII, and the portions of Count IX claiming negligence
against Defendant Aiona and against the Club in connection with
its handling of the Van Calcar Arbitration settlement.
For the foregoing reasons, the Court severs Counts IV,
V, VI, VII, VIII, and the portions of Count IX claiming
negligence against Defendant Aiona and against the Club in
connection with its handling of the Van Calcar Arbitration
settlement, and directs the parties to submit these claims to
mediation, and, if necessary, arbitration, as mandated by the
17
dispute resolution provision in the Club Bylaws.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, February 7, 2013.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
JEFFREY REIMER V. KUKI’O GOLF AND BEACH CLUB, INC., ET AL; CIVIL
NO. 12-00408 LEK-BMK; ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
18
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