Barnes v. Sea Hawaii Rafting, LLC et al
Filing
77
ORDER Denying 58 Plaintiff's MOTION for Summary Judgment For Payment of Maintenance. Signed by JUDGE ALAN C KAY on 4/15/14. (gab, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notificat ions 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
CHAD BARRY BARNES,
Plaintiff,
v.
SEA HAWAII RAFTING, LLC, KRIS
HENRY, M/V TEHANI, et al.,
Defendants.
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Civ. No. 13-00002 ACK-RLP
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT FOR PAYMENT
OF MAINTENANCE
For the following reasons, the Court DENIES Plaintiff
Chad Berry Barnes’s Motion for Summary Judgment for Payment of
Maintenance.
FACTUAL BACKGROUND1/
This matter arises under admiralty law. Plaintiff Chad
Berry Barnes alleges that he was employed by Defendant Kris Henry
and/or Defendant Sea Hawaii Rafting as a crew member on the
vessel M/V TEHANI. (Compl. ¶¶ 14-15.) On July 3, 2012, Barnes was
injured when an explosion occurred under the deck of the boat as
Barnes was starting its engine and helping to launch it into the
Honokohau Small Boat Harbor in Kailua-Kona, Hawaii. (Id. ¶¶ 1213.) Barnes alleges that he suffered severe physical and
1/
The facts as recited in this Order are for the purpose of
disposing of the current motion and are not to be construed as
findings of fact that the parties may rely on in future
proceedings.
emotional injuries as a result of the accident that require
“ongoing medical treatment, loss of time from work, and may have
left him permanently disabled.” (Id. ¶¶ 16-17.)
PROCEDURAL BACKGROUND
On January 1, 2013, Barnes filed a Verified Complaint
against Sea Hawaii Rafting, LLC, Kris Henry, and a number of Doe
defendants, in personum, and M/V TEHANI, HA-1629 CP, and her
engines, equipment, tackle, stores, furnishings, cargo and
freight, in rem (together, “Defendants”). (Doc. No. 1
(“Compl.”).) In his complaint, Barnes brings the following
claims: (1) negligence under the Jones Act, 46 U.S.C. § 688,
against the in personam Defendants (Count I); (2) unseaworthiness
as against the M/V TEHANI (Count II); (3) maintenance, cure, and
wages under general maritime law (Count III); (4) compensation
and recovery for negligence pursuant to the Longshore and Harbor
Workers’ Compensation Act, 33 U.S.C. § 905, against the in
personam and in rem Defendants (Counts IV-VII); (5) individual
liability of Defendant Kris Henry and the Doe Defendants for the
negligence of Sea Hawaii Rafting, pursuant to a theory of
“piercing the veil of limited liability” (Count VII); and (6)
intentional and/or negligent infliction of emotional distress as
against all Defendants (Count VIII). (Id. ¶¶ 23-71.) Barnes seeks
compensatory damages, punitive damages, and recovery of
attorneys’ fees.
2
On August 20, 2013, Barnes filed a Motion for Summary
Judgment for Payment of Maintenance and Cure, asking for judgment
as to Count III of his complaint. (Doc. No. 25.) On November 15,
2013, the Court issued its Order Granting in Part and Denying in
Part Plaintiff’s Motion for Summary Judgment for Payment of
Maintenance and Cure.2/ (Doc. No. 44 (“11/15/13 Order”).) In the
11/15/13 Order, the Court found that Barnes is entitled to
maintenance and cure from July 3, 2012 (the date of his injury)
until he reaches maximum cure. (Id. at 9.) The Court denied
Barnes’s motion as to the appropriate amount of maintenance and
cure, finding that Barnes failed to proffer sufficient evidence
to demonstrate the reasonable amount of maintenance for a seaman
in Barnes’s locality, and failed to prove his medical expenses.3/
(Id. at 18.)
On January 27, 2014, Barnes filed the instant Motion
for Summary Judgment, supported by a concise statement of facts
and a number of exhibits. (Doc. Nos. 58, 59.) Defendants filed
their memorandum in opposition, also supported by a concise
2/
In the 11/15/13 Order, the Court urged the parties to
engage in a settlement conference in an effort to reach a
stipulation with respect to the amount of maintenance payments.
(Id. at 15 n.9.) Defendants have offered to stipulate to $30 per
day without prejudice to a future determination as to the
fairness of that amount. (Defendants’ Concise Statement of Facts
(“CSF”), Ex. 1.) Barnes has apparently declined this offer.
3/
On November 22, 2013, Barnes filed a Motion for
Reconsideration of the 11/15/13 Order. (Doc. No. 45.) The Court
denied the motion on December 13, 2013. (Doc. No. 51.)
3
statement of facts and numerous exhibits, on March 24, 2014.
(Doc. Nos. 68, 69.) Barnes filed his reply, with exhibits
attached, on April 1, 2014. (Doc. No. 71.)
A hearing on the motion was held on April 14, 2014.
STANDARD
Summary judgment is appropriate when a “movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). The central issue is “whether the evidence presents a
sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a
matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251–52 (1986).
The moving party bears the initial burden of
demonstrating the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If that
burden has been met, the nonmoving party must then come forward
and establish the specific material facts in dispute to survive
summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 588 (1986). The Court must draw all
reasonable inferences in favor of the nonmoving party. Id. at
587.
In supporting a factual position, a party must “cit[e]
to particular parts of materials in the record . . . or show[]
4
that the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” Fed. R. Civ. P.
56(c)(1). The nonmoving party “must do more than simply show that
there is some metaphysical doubt as to the material facts.”
Matsushita, 475 U.S. at 585. “[T]he requirement is that there be
no genuine issue of material fact . . . . Only disputes over
facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary
judgment.” Anderson, 477 U.S. at 247–48 (emphasis in original).
Also, “[t]he mere existence of a scintilla of evidence in support
of the non-moving party’s position is not sufficient[]” to defeat
summary judgment. Triton Energy Corp. v. Square D Co., 68 F.3d
1216, 1221 (9th Cir. 1995). Likewise, the nonmoving party “cannot
defeat summary judgment with allegations in the complaint, or
with unsupported conjecture or conclusory statements.” Hernandez
v. Spacelabs Med. Inc., 343 F.3d 1107, 1112 (9th Cir. 2003).
DISCUSSION
In the instant motion, Barnes seeks summary judgment
solely as to the proper amount of maintenance. Barnes notes that
the Court, in its 11/15/13 Order, found that Barnes had proffered
sufficient evidence to show that his actual expenses are $2,050
per month, or approximately $68 per day, and that Barnes is
entitled to maintenance in the amount of his actual expenses up
5
to the reasonable amount for his locality. (Mot. at 5; see also
11/15/13 Order at 12, 14.) With the instant motion, therefore,
Barnes seeks to demonstrate the reasonable cost of living in his
locality. Relying upon two affidavits (Barnes’s own affidavit
regarding his investigation of the cost of food and lodging in
Kailua-Kona, and the affidavit of Sarah Ellen Gray, a single
seaman living at the Honolulu Sailor’s Home), Barnes argues that
the reasonable cost of living for a seaman in Kailua-Kona is
between $50 and $57 per day. (Mot. at 7.) Barnes therefore
requests that the Court award him maintenance payments of $54 per
day from the date of his injury until he reaches maximum medical
cure. (Reply at 14.)
I.
Maintenance and Cure
When a seaman is injured in the service of his vessel,
the shipowner has an obligation to pay maintenance (room and
board), cure (medical expenses), and unearned wages. Vaughan v.
Atkinson, 369 U.S. 527, 531–33 (1962); Lipscomb v. Foss Maritime
Co., 83 F.3d 1106, 1109 (9th Cir. 1996). The entitlement to
maintenance and cure continues until the seaman reaches “maximum
cure” - a recovery as complete as the injury allows. Permanente
S.S. Corp. v. Martinez, 369 F.2d 297, 298–99 (9th Cir. 1966)
(stating that the obligation to furnish maintenance and cure
“continues until the seaman achieves maximum recovery; that is,
until the seaman is well or his condition is found to be
6
incurable.”); see also Berg v. Fourth Shipmor Assocs., 82 F.3d
307, 309 (9th Cir. 1996) (same). When a seaman is injured in the
service of a vessel, the employer must pay maintenance and cure
even where the employer is not at fault. Aguilar v. Standard Oil
Co. of N.J., 318 U.S. 724, 730 (1943); Crooks v. United States,
459 F.2d 631, 632 (9th Cir. 1972).4/
A plaintiff’s burden of proof on a maintenance and cure
claim is slight: he need only establish that he was injured or
became ill while “subject to the call of duty as a seaman.”
Aguilar, 318 U.S. at 732. Further, the Court resolves any
ambiguities or doubts as to the seaman’s right to receive
maintenance and cure in favor of the seaman. Vaughan, 369 U.S. at
532. As the Supreme Court has noted, a “shipowner’s liability for
maintenance and cure [is] . . . not to be defeated by restrictive
distinctions nor ‘narrowly confined.’” Id. at 532 (quoting
Aguilar, 318 U.S. at 730).
4/
The Court notes that it is an open question in the Ninth
Circuit whether a pretrial motion for maintenance and cure should
be viewed under the summary judgment standard or through an
approach that takes into account the flexibility that admiralty
law affords to the Court and the deference afforded to seamen.
See, e.g., Best v. Pasha Haw. Transport Lines, LLC, 2008 WL
1968334, at *1 (D. Haw. May 6, 2008) (discussing the Ninth
Circuit’s inconsistent treatment of such motions); Buenbrazo v.
Ocean Alaska, LLC, 2007 WL 3165523, at *1 (W.D. Wash. Oct. 24,
2007) (noting the “obvious tension” between summary judgment and
resolving all doubts in favor of the seaman). The Court need not
determine which standard of review is appropriate here, however,
as even under the more flexible standard viewing the facts in the
light most favorable to Barnes, the existence of genuine issues
of fact preclude judgment in his favor.
7
This Court has already found that Barnes is entitled to
payment of maintenance from the date of his accident until he
reaches maximum cure. (11/15/13 Order at 21.) Defendants
nevertheless argue that Barnes is not entitled to maintenance
payments for times during which he has not incurred any food or
lodging costs. Defendants note that Barnes has stated that he has
been living on the charity of friends for the past year. (Opp’n
at 11.) This statement may not, however, be used as a basis for
denying Barnes maintenance payments. Generally, “if the seaman’s
actual expenses are not sufficient to afford him food and lodging
that are reasonably adequate, the court should award maintenance
sufficient to provide reasonable food and lodging, even if the
award exceeds the seaman’s actual costs.” Hall, 242 F.3d at 587.
In other words, if a seaman’s actual expenses for rent are quite
low because he cannot afford adequate housing, as appears to be
the case here, this does not mean that he is not entitled to a
reasonable amount of maintenance. This is in keeping with the
courts’ traditional solicitude for the “poor, friendless and
improvident” seaman. See Calmar S.S. Corp. v. Taylor, 303 U.S.
525, 528 (1938).
Moreover, while it is true that a seaman is only
entitled to the reasonable cost of food and lodging where he has
actually incurred the expense, “when the seaman has made ‘an
expressed intention’ to pay for lodging and food, even if the
8
obligation is not legally enforceable, the seaman may recover
maintenance.” Hall, 242 F.3d at 287-88. Here, even for those
periods of time during which he has been “couch surfing,” or
relying upon the charity of his friends and family to provide for
his food and lodging, Barnes has stated that he intends to repay
this charity when he is able. In an affidavit attached to his
reply in support of the instant motion, Barnes states that
“[a]lthough I have stated that I have been sleeping on couches
due to the charity of friends, I did not mean that I am not
obligated to pay them back for their help . . . . we have all
agreed that I must pay them back for their ‘charity’ when I am
able to do so.”5/ (Reply, Barnes Aff. ¶ 21.) It thus appears that
Barnes has made “an expressed intention” to pay for his food and
lodging and is therefore entitled to a reasonable amount in
maintenance even for those periods during which he has had to
rely upon the charity of others. See Hall, 242 F.3d at 588; see
also Barnes v. Andover Co., L.P., 900 F.2d 630, 641 (3rd Cir.
1990) (“[A] seaman living with his family is entitled to
maintenance if he shows that he paid his family for his room and
board or that he had promised that he would and was obliged to do
so.”).
5/
Similarly, Barnes stated in the June 11, 2013 letter
attached as Exhibit D to his first Motion for Summary Judgment
for Payment of Maintenance and Cure that his father has been
subsidizing his rent each month “with the agreement all monies
will be paid back to him.” (Doc. No. 25, Ex. D at 1.)
9
The Court therefore turns to an analysis of the issue
before it in the instant motion: the proper rate of maintenance.
II.
Amount of Maintenance
As this Court stated in its 11/15/13 Order, when
determining maintenance, the Court must look at both reasonable
expenses and Barnes’s actual expenses. Specifically, “[a] seaman
is entitled to the reasonable cost of food and lodging, provided
he has incurred the expense.” Hall v. Noble Drilling, Inc., 242
F.3d 582, 587 (5th Cir. 2001). Determining the maintenance award
involves three steps:
First, the court must estimate two amounts: the
plaintiff seaman’s actual costs of food and lodging;
and the reasonable cost of food and lodging for a
single seaman in the locality of the plaintiff. In
determining the reasonable costs of food and lodging,
the court may consider evidence in the form of the
seaman’s actual costs, evidence of reasonable costs in
the locality or region, union contracts stipulating a
rate of maintenance or per diem payments for shoreside
food or lodging while in the service of a vessel, and
maintenance rates awarded in other cases for seamen in
the same region.
...
Second, the court must compare the seaman’s actual
expenses to reasonable expenses. If actual expenses
exceed reasonable expenses, the court should award
reasonable expenses. Otherwise, the court should award
actual expenses. Thus, the general rule is that seamen
are entitled to maintenance in the amount of their
actual expenses on food and lodging up to the
reasonable amount for their locality.
Third, there is one exception to this rule that the
court must consider. If the court concludes that the
plaintiff’s actual expenses were inadequate to provide
him with reasonable food and lodging, the plaintiff is
10
entitled to the amount that the court has determined is
the reasonable cost of food and lodging. This insures
that the plaintiff’s inability to pay for food and
lodging in the absence of maintenance payments does not
prevent him from recovering enough to afford himself
reasonable sustenance and shelter.
Id. at 590.
Here, Barnes argues that the maintenance rate should be
set at $54 per day. (Mot. at 7; Reply at 14.) Defendants argue
that Barnes has failed to establish either his actual expenses,
or the reasonable expenses in his locality.
First, as to Barnes’s actual expenses, this Court found
in its 11/15/13 Order that Barnes produced sufficient evidence
that they are $2,050 per month, or approximately $68 a day.6/
(11/15/13 Order at 11-12.) Defendants argue, however, as they did
in opposition to Barnes’s prior motion, that Barnes’s claims
regarding his expenses, absent substantiation with receipts, are
insufficient to establish his actual expenses. (Opp’n at 8-9.) As
this Court stated in its 11/15/13 Order, however, a seaman’s
burden in producing evidence establishing his actual expenses is
“feather light.” Yelverton v. Mobile Laboratories, Inc., 782 F.2d
555, 558 (5th Cir. 1986); see also Hall, 242 F.3d at 590. Indeed,
a plaintiff’s own testimony as to the cost of room and board in
the community where he is living is sufficient to support an
6/
Barnes’s total claimed eligible monthly expenses included
$500 for rent, $200 for utilities, and $1,350 ($45/day x 30 days)
for food, for a total of $2,050, or approximately $68 per day
($2,050 divided by 30 days). (See 11/14/13 Order at 11 n.7.)
11
award. Yelverton, 782 F.2d at 558; see also Hall, 242 F.3d at
585, 591 (noting that plaintiffs “presented itemized lists of
their expenses,” and finding this sufficient evidence of their
actual expenses). Barnes submitted as an exhibit attached to his
first Motion for Summary Judgment for Payment of Maintenance and
Cure a letter itemizing his monthly expenses. (Doc. No. 25 (1st
Mot.), Ex. D.) This Court found in its 11/15/13 Order that the
letter was sufficient to establish Barnes’s actual monthly
expenses as $2,050 per month, or approximately $68 per day.
(11/15/13 Order at 12.) Barnes is entitled to maintenance in the
amount of the actual cost of his food and lodging, “up to the
reasonable amount for [his] locality.” See Hall, 585 F.2d at 590.
As such, the Court’s determination on the instant motion turns on
an assessment of Barnes’s claimed actual expenses7/ in light of
the evidence proffered as to the reasonable expenses for a seaman
in Barnes’s locality. See Hall, 242 F.3d at 590.
With respect to reasonable expenses, as an initial
matter the Court notes that, surprisingly, neither party has
7/
Defendants also argue that Barnes has made inconsistent
statements as to his actual expenses. (Opp’n at 11-12.) This
argument appears, however, to misunderstand the purpose of
Barnes’s affidavit in the instant motion. Whereas the affidavit
and exhibits attached to his prior motion for summary judgment
were made for the purpose of establishing Barnes’s actual costs,
(see Doc. No. 25, Barnes Aff. & Ex. D), Barnes’s affidavit here
is made for the purpose of establishing the reasonable cost of
living in Barnes’s locale. As such, the fact that there is some
discrepancy between the figures in the two statements is
unremarkable.
12
produced any expert testimony. Without offering any expert
testimony of their own, Defendants argue that the affidavits
Barnes provides in support of his claims regarding the cost of
living in his locale (one by Barnes himself and one by a fellow
seaman residing in Honolulu) are insufficient to establish a
reasonable maintenance rate. While it is true that the affidavits
are far from the most probative evidence conceivable regarding
the reasonable cost of living in Barnes’s locale, they are
nevertheless relevant and the Court will consider them. See Morel
v. Sabine Towing & Transp. Co., Inc., 669 F.2d 345, 347 (5th Cir.
1982) (acknowledging that a seaman’s own testimony regarding the
reasonable cost of room and board in his locale was not “the most
probative evidence one might conceive[,]” but was nevertheless
admissible and relevant); see also Yelverton, 782 F.2d at 558
(stating that a seaman’s “own testimony as to reasonable cost of
room and board in the community where he is living is sufficient
to support an award.”)
First, Barnes offers the affidavit of Sarah Ellen Gray,
a seaman residing at the Honolulu Sailor’s Home in Honolulu.8/
(See Mot. Ex. I (Gray Aff.).) Ms. Gray states that she rents a
single room with a shared shower and toilet in the Honolulu
8/
The Court notes that both parties argue that there may be
differences in the cost of living between Honolulu and KailuaKona (see Reply at 8; Opp’n at 16); however, neither party
provides any evidence to support such an assertion or clarify
what those differences may be.
13
Sailor’s Home for $22 per day, and that she could rent a single
room with a private toilet for $30 per day.9/ (Id. ¶¶ 7-8.) Ms.
Gray states that she spends between $27 and $31 per day on
food.10/ (Id. ¶¶ 11-15, 22.) In sum, Ms. Gray states that the
reasonable allowable maintenance expenses for a seaman in
Honolulu are approximately $49 to $66 per day.
The second affidavit in support of Barnes’s claim as to
reasonable expenses in his locale is Barnes’s own affidavit in
which he reports the results of an investigation he conducted to
determine the reasonable cost of living for a single seaman
living in Kailua-Kona. (See Mot. Ex. I (Barnes Aff.).) In
addition to his own statements regarding the cost of living,
Barnes attaches to his affidavit (1) printouts from Craigslist of
advertisements for apartments and rooms for rent in the KailuaKona area (Exs. A & B); (2) classified advertisements from West
Hawaii Today for apartments and rooms for rent (Ex. C.); (3) a
hand-written estimate of the cost of renting a room in a KailuaKona hostel (as well as reviews of the hostel), and a brochure
listing the prices for rooms at two local hotels (Exs. D-F.); (4)
9/
Ms. Gray states that these rates are set to increase to
$25 and $35 per day, respectively, at some point in the near
future. (Id. ¶ 9.)
10/
Ms. Gray also lists a number of expenses that are not
allowable maintenance expenses, including toiletries, clothing,
transportation, and telephone service. See Hall, 242 F.3d at 587
n.17.
14
a spreadsheet setting forth selections from the weekly specials
at Safeway.com for the week of January 22, 2014 (Ex. H.); and (5)
sample menus from local restaurants (Ex. G.) Barnes states that,
based on his investigation and the attached exhibits, the
reasonable rate for rent and utilities in Kailua-Kona is between
$720 and $900 per month, or $25 and $30 per day. (Barnes Aff.
¶ 31.) He states that food from a grocery store costs
approximately $21 to $25 per day, and to eat three meals a day
out costs approximately $35 per day.11/ (Id. ¶¶ 21-27, 31.)
Because the costs for rent and utilities that Barnes sets forth
are based on rental listings that would allow a person to cook
his meals at home, the Court will consider the costs for
groceries that Barnes sets forth, rather than the costs
associated with eating three meals per day out at restaurants.
Excluding those costs Barnes lists that are not permissible
maintenance expenses, Barnes’s affidavit indicates that the
reasonable cost of living for a single seaman in Kailua-Kona is
approximately $46 to $55 per day.
Taking the two affidavits together, and including only
those expenses allowable in maintenance, it appears Barnes’s
evidence suggests that the reasonable cost of food is between $21
and $31 per day, and that the reasonable cost of rent is between
11/
In his affidavit, Barnes includes a number of expenses
that are not allowable maintenance expenses, including laundry,
clothing, and telephone service. See Hall, 242 F.3d at 587 n.17.
15
$22 and $30 per day. This would indicate that the reasonable
maintenance rate is between $43 and $61 per day.12/
Defendants, on the other hand, argue that, contrary to
Barnes’s assertions, a reasonable maintenance rate for Barnes’s
locale is between $30 and $33 per day. (Opp’n at 21-22.) Further,
Defendants state that as of November 13, 201313/ they have begun
making maintenance payments of $30 per day to Barnes. (Opp’n at
22 & Ex. 8.)
Defendants assert that Barnes’s proffered evidence as
to the reasonable costs for food and rent in his locale is
contradicted by Defendants’ own evidence and, thus, summary
judgment is inappropriate. (Opp’n at 12-13.) With respect to the
cost of rent, Defendants submit evidence of rentals with rents
ranging from $360 to $650 per month, or $12 to $22 per day. (Id.
Exs. 5 & 6.) Barnes counters that the rentals Defendants submit
that are less than approximately $600 per month (or $20 per day)
are unsuitable for him, either because they require the applicant
to have a job (and he is unable to work because of his injury),
or because they are located outside of walking distance from
12/
Puzzlingly, in his Reply, Barnes states that “[t]he cost
of living asserted by the Plaintiff is, by necessity,
hypothetical.” (Reply at 10.) Nevertheless, it appears Barnes has
provided some evidence to support his claims regarding the cost
of living.
13/
It appears Defendants actually sent the first payment to
Barnes on March 10, 2014; however, the payment covered the period
of November 13, 2013 to March 10, 2014. (Opp’n, Ex. 8.)
16
downtown Kailua-Kona, where all of his medical providers are
located (Barnes is unable to drive or ride a bike because of his
medical condition). (See Reply, Barnes Aff. ¶¶ 5-15.)
As to the cost of food, Defendants argue that Barnes’s
own testimony as to the reasonable cost of food in his area,
along with his proffered evidence from one Safeway store, is
insufficient to support a finding as to the reasonable cost of
food because it is not representative of costs generally, and
merely reflects one store’s prices on one given day. (Opp’n at
14-15.) Defendants further argue that Barnes’s claim that the
reasonable cost of food is between $21 and $31 per day is
contradicted by the United States Department of Agriculture
(“USDA”), Center for Nutrition Policy and Promotion statistics
regarding the costs for food for a single male Barnes’s age
living in Hawaii. (Id.) Specifically, Defendants attach to their
opposition the Official USDA Alaska and Hawaii Thrifty Food
Plans14/ for the second half of 2012 and the year of 2013. (Opp’n
Ex. 7.) According to the USDA plans, for the second half of 2012,
a single male living in Hawaii has an average food cost of
approximately $360.24 per month, or $12.01 per day. (Opp’n, Ex. 7
14/
The USDA’s Thrifty Food Plan (“TFP”) is the cheapest of
the USDA’s four model food plans specifying types and amounts of
foods that provide a nutritious diet at different cost points.
The TFP is used to set benefit levels for the Supplemental
Nutrition Assistance Program (formerly known as the food stamp
program). USDA, USDA Food Plans: Cost of Food,
http://www.cnpp.usda.gov/USDAFoodPlansCostofFood.htm.
17
at 1.) The figure for the first half of 2013 is $367.44 per
month, or $12.25 per day, and the figure for the second half of
2013 is $361.32 per month, or $12.04 per day. (Id. at 2-3.)
In sum, Defendants proffer evidence that the reasonable
cost of food for Barnes in his locality15/ is approximately $12
per day, and the reasonable cost of rent is between $12 and $22
per day, for a total reasonable maintenance rate of between $24
and $34 per day. Barnes, on the other hand, has produced evidence
that the reasonable cost of food is between $21 and $31 per day,
and the reasonable cost of rent is between $22 and $30 per day,
for a total maintenance rate of between $43 and $61 per day.
Based on the disparities between the evidence provided by the
parties on the reasonable cost of living, the Court finds that
there is a genuine dispute of material fact. The Court cannot,
therefore, make a determination as a matter of law as to the
reasonable cost of living in Barnes’s locale, or as to the proper
amount of maintenance in this case. The Ninth Circuit has ruled
that a court may properly refuse to compel maintenance before
trial when issues of fact still exist. See Glynn v. Roy Al Boat
15/
The Court notes that the USDA cost estimates are for a
single male of Barnes’s age living in the State of Hawaii, and do
not appear to address whether the cost of living in Kailua-Kona
may be more or less than the average cost of living for the state
as a whole. As noted above, both parties make arguments regarding
differences between the cost of living in Kailua-Kona and
Honolulu; however, neither party has produced any evidence
establishing what those differences may be.
18
Mgm’t Corp., 57 F.3d 1495, 1505–06 (9th Cir. 1995) (abrogated on
other grounds) (stating that this district court “did not err in
concluding that a grant of maintenance was premature” where a
disputed issue of fact remained). This is such a case. Because
factual issues remain, the Court cannot make a determination as
to the proper rate of maintenance at this time.
CONCLUSION
For the foregoing reasons, the Court DENIES Barnes’s
Motion for Summary Judgment for Payment of Maintenance.
IT IS SO ORDERED.
DATED:
Honolulu, Hawaii, April 15, 2014
________________________________
Alan C. Kay
Senior United States District Judge
Barnes v. Sea Hawaii Rafting, et al., Civ. No. 13-00002 ACK-RLP, ORDER DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT FOR PAYMENT OF MAINTENANCE.
19
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