Mahoe v. Operating Engineers Local Union No. 3 of the International Union of Operating Engineer, AFL-CIO et al
Filing
34
ORDER GRANTING DEFENDANT OPERATING ENGINEERS LOCAL UNION NO. 3 OF THE INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO'S MOTION TO DISMISS (ECF. No. 7 ) WITH LEAVE TO AMEND. Signed by JUDGE HELEN GILLMOR on 09/27/2013. (eps) -- Defendant Operating Engineers Local Union No. 3 of the International Union of Operating Engineers, AFL-CIO's "MOTION TO DISMISS COUNT II (DEFAMATION) AND/OR FOR MORE DEFINITE STATEMENT" (ECF. No. 7 ) is GRANTED WITH LEAVE TO A MEND as to both (Count I) and (Count II). Defendant Union's request for a more definite statement is DENIED. Plaintiff Mahoe has until November 5, 2013 to file an Amended Complaint consistent with this Order. Failure to file an Amended Complaint consistent with this Order by November 5, 2013 will result in dismissal of the entire matter 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
)
)
)
Plaintiff,
)
)
vs.
)
)
OPERATING ENGINEERS LOCAL UNION )
NO. 3 OF THE INTERNATIONAL
)
UNION OF OPERATING ENGINEERS,
)
AFL-CIO; JOHN DOES 1-5; JANE
)
DOES 1-5; DOES CORPORATIONS 1- )
5; DOES PARTNERSHIPS 1-5; and
)
DOE GOVERNMENTAL AGENCIES 1-5, )
)
Defendants.
)
)
_______________________________ )
)
OPERATING ENGINEERS LOCAL UNION )
NO. 3 OF THE INTERNATIONAL
)
UNION OF OPERATING ENGINEERS,
)
AFL-CIO,
)
)
Counter Claimant,
)
)
vs.
)
)
WILLIAM K. MAHOE,
)
)
Counter Defendant.
)
)
WILLIAM K. MAHOE,
Civ. No. 13-00186 HG-BMK
ORDER GRANTING DEFENDANT OPERATING ENGINEERS LOCAL UNION NO. 3 OF
THE INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO’S MOTION
TO DISMISS (ECF. No. 7) WITH LEAVE TO AMEND
Plaintiff William K. Mahoe, a Native Hawaiian/Pacific
Islander, claims that his former employer, Defendant Operating
Engineers Local Union No. 3 of the International Union of
Operating Engineers, AFL-CIO, discriminated against him on the
basis of race.
Plaintiff Mahoe seeks relief pursuant to Title
VII of the Civil Rights Act of 1964.
Plaintiff Mahoe also claims
that the Defendant Union or its agents made defamatory statements
about him.
The Defendant Union filed a “MOTION TO DISMISS COUNT II
(DEFAMATION) AND/OR FOR MORE DEFINITE STATEMENT.”
The title of
the Motion states that it seeks to dismiss only Count II for
Defamation, but the body of the Motion and the attached
Memorandum move to dismiss both Count I and Count II for failure
to state a claim pursuant to Federal Rules of Civil Procedure
12(b)(6).
Subsequent to the Motion to Dismiss, the Defendant
Union filed a counterclaim against Plaintiff Mahoe.
19).
(ECF. No.
The Defendant Union’s Motion to Dismiss (ECF. No. 7) is
GRANTED WITH LEAVE TO AMEND.
The Defendant Union’s request for a
more definite statement is DENIED.
PROCEDURAL HISTORY
On September 21, 2012, Plaintiff William K. Mahoe (“Mahoe”)
filed a Complaint in the Circuit Court of the First Circuit,
State of Hawaii. (Complaint, attached as Exh. A. to Defendant’s
Notice of Removal, ECF. No. 1-1).
On April 19, 2013, Defendant Operating Engineers Local Union
No. 3 of the International Union of Operating Engineers, AFL-CIO
(“Union”) removed the state court action to the United States
2
District Court, District of Hawaii.
(ECF. No. 1).
On April 26, 2013, the Union filed “OPERATING ENGINEERS
LOCAL UNION NO. 3 OF THE INTERNATIONAL UNION OF OPERATING
ENGINEERS, AFL-CIO’S MOTION TO DISMISS COUNT II (DEFAMATION)
AND/OR FOR MORE DEFINITE STATEMENT” (hereafter “Motion to
Dismiss”).
(ECF. No. 7).
On July 12, 2013, the case was reassigned to the Honorable
Judge Helen Gillmor.
(ECF. No. 23).
On July 22, 2013, Mahoe filed “PLAINTIFF WILLIAM K. MAHOE’S
MEMORANDUM IN OPPOSITION TO DEFENDANT OPERATING ENGINEERS LOCAL
UNION NO. 3 OF THE INTERNATIONAL UNION OF OPERATING ENGINEERS,
AFL-CIO’S MOTION TO DISMISS COUNT II (DEFAMATION) AND/OR FOR MORE
DEFINITE STATEMENT FILED APRIL 26, 2013.”
(ECF. No. 25).
On July 29, 2013, the Union filed “OPERATING ENGINEERS LOCAL
UNION NO. 3’S REPLY MEMORANDUM IN SUPPORT OF ITS MOTION TO
DISMISS AND/OR FOR MORE DEFINITE STATEMENT, FILED ON APRIL 26,
2013.”
(ECF. No. 26).
On August 9, 2013, the Union filed an Answer to the
Complaint and Counter Claims.
(ECF. No. 27).
The Union alleges
counter claims for breach of contract, breach of fiduciary duty,
fraud and concealment of material facts, conversion, and unjust
enrichment.
On August 19, 2013, Mahoe filed a Demand for Trial by Jury.
(ECF. No. 28).
3
On August 30, 2013, Mahoe filed an Answer to the Union’s
counterclaim.
(ECF. No. 29).
Pursuant to Local Rule 7.2(e), the Court elected to decide
the Motion without a hearing.
BACKGROUND
Factual allegations asserted in the Complaint are considered
true for the purposes of Defendant’s Motion to Dismiss.
See
Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.1 (9th
Cir. 2003).
According to the Complaint, the Union employed Mahoe from
1992 through 2004 in various capacities.
No. 1-1).
(Complaint at ¶ 4, ECF.
Mahoe asserts that on September 1, 2006, the Union
again employed him and elected him to serve as a Trustee.
at ¶ 5).
(Id.
The Complaint alleges that in 2009, the Union appointed
Mahoe to Treasurer, where he claims that he was the “only high
ranking non-Caucasian on the Board.”
(Id. at ¶ 5, 6).
Mahoe
asserts that he was fully qualified for the position and
satisfactorily completed his job duties.
(Id. at ¶ 10-m).
Mahoe alleges that the Union placed him under investigation
numerous times.
(Id. at ¶ 10-d, 10-g, 10-h, 10-i).
The
Complaint states that one investigation was based on complaints
by two former employees, but it fails to identify the nature of
any of the investigations.
(Id.).
4
Mahoe claims that in January 2010, the Union decreased his
income because he refused to relocate to its head office in
California.
(Id. at ¶ 10-e).
Mahoe claims that another
employee, who is Caucasian and resides in Utah, also refused to
relocate to California but did not have his income decreased.
(Id. at ¶ 10-f).
Mahoe alleges that he complained to the Union about race
discrimination against him on June 16, 2010, after which he was
again placed under investigation.
(Id. at ¶ 10-h).
The Complaint states that Mahoe and the Union reached an
agreement following the investigations that was recorded in a
Letter of Understanding in October 2010.
(Id. at ¶ 10-j).
Mahoe claims that on January 23, 2011, the Union
“constructively terminated” him, when he submitted his
resignation.
(Id. at ¶ 10-k).
Mahoe alleges the Union replaced
him with a person not of his race.
(Id. at ¶ 10-l).
Mahoe
claims that the Union, its employees, or agents, made defamatory
statements about his lack of integrity and competence as
Treasurer.
(Id. at ¶ 15).
Mahoe states that he filed a Charge of Discrimination with
the Equal Employment Opportunity Commission (“EEOC”), EEOC No.
486-2010-00349.
(Id. at ¶ 7).
According to the Complaint, the
EEOC issued a Dismissal and Notice of Rights on June 25, 2012.
(Id. at ¶ 8).
5
Mahoe alleges (Count I) disparate treatment arising from
racial discrimination and retaliation pursuant to Title VII of
the Civil Rights Act of 1964.
defamation.
Mahoe also alleges (Count II)
The Union, pursuant to Federal Rule of Civil
Procedure 12(b)(6), moves to dismiss both counts against it.
STANDARD OF REVIEW
The Court must dismiss a complaint as a matter of law
pursuant to Federal Rule of Civil Procedure 12(b)(6) where it
fails “to state a claim upon which relief can be granted.”
Rule
(8)(a)(2) of the Federal Rules of Civil Procedure requires “a
short and plain statement of the claim showing that the pleader
is entitled to relief.”
When considering a Rule 12(b)(6) motion
to dismiss, the Court must presume all allegations of material
fact to be true and draw all reasonable inferences in favor of
the non-moving party.
Cir. 1998).
Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th
Conclusory allegations of law and unwarranted
inferences are insufficient to defeat a motion to dismiss.
at 699.
Id.
The Court need not accept as true allegations that
contradict matters properly subject to judicial notice or
allegations contradicting the exhibits attached to the complaint.
Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th
Cir. 2001).
6
In Bell Atl. Corp. v. Twombly, the United States Supreme
Court addressed the pleading standards under the Federal Rules of
Civil Procedure in the anti-trust context.
550 U.S. 544 (2007).
The Supreme Court stated that Rule 8 of the Federal Rules of
Civil Procedure “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action,” and
that “[f]actual allegations must be enough to raise a right to
relief above the speculative level.”
Id. at 555.
Most recently, in Ashcroft v. Iqbal, the Supreme Court
clarified that the principles announced in Twombly are applicable
in all civil cases.
129 S.Ct. 1937 (2009).
The Court stated
that “the pleading standard Rule 8 announces does not require
‘detailed factual allegations,’ but it demands more than an
unadorned, the-defendant-unlawfully-harmed-me-accusation.”
at 1949 (citing Twombly, 550 U.S. at 555).
Id.
To survive a motion
to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on
its face.
Id. (quoting Twombly, 550 U.S. at 570).
A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.
Twombly, 550 U.S. at 556).
Id. (citing
The plausibility standard is not akin
to a “probability requirement,” but it asks for more than a sheer
possibility that a defendant has acted unlawfully.
7
Id. (quoting
Twombly, 550 U.S. at 556).
Where a complaint pleads facts that
are “merely consistent with” a defendant’s liability, it “stops
short of the line between possibility and plausibility of
‘entitlement to relief.’”
Id. (quoting Twombly, 550 U.S.
at 557).
The complaint “must contain sufficient allegations of
underlying facts to give fair notice and to enable the opposing
party to defend itself effectively” and “must plausibly suggest
an entitlement to relief, such that it is not unfair to require
the opposing party to be subjected to the expense of discovery
and continued litigation.”
AE ex rel Hernandez v. Cnty. of
Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (internal quotations
omitted).
ANALYSIS
The Complaint filed by Plaintiff William K. Mahoe (“Mahoe”)
contains two counts: (1) disparate treatment arising from racial
discrimination and retaliation pursuant to Title VII of the Civil
Rights Act of 1964; and (2) defamation.
Defendant Operating
Engineers Local Union No. 3 of the International Union of
Operating Engineers, AFL-CIO (“Union”), pursuant to Federal Rule
of Civil Procedure 12(b)(6), moves to dismiss both counts against
it.
8
COUNT I –– Title VII Discrimination
Plaintiff Mahoe’s Complaint alleges that the Union violated
Title VII of the Civil Rights Act of 1964, because he “suffered
discrimination in terms, conditions, and privileges of employment
due to his race (Native Hawaiian/Pacific Island), and in
retaliation for complaining of the discrimination.”
at ¶ 12, ECF. No. 1-1).
(Complaint
Mahoe appears to allege Title VII claims
of disparate treatment and retaliation.
Title VII of the Civil Rights Act of 1964 provides, in
relevant part:
It shall be unlawful employment practice for an
employer ... to fail or refuse to hire or to
discharge any individual, or otherwise to
discriminate against any individual with respect to
his compensation, terms, conditions, or privileges
of employment, because of such individual’s race,
color, religion, sex, or national origin.
42 U.S.C. § 2000e-2(a)(1) (2006).
A.
Disparate Treatment
A person suffers disparate treatment in his employment when
he is singled out and treated less favorably than others
similarly situated on account of race.
See McGinest v. GTE
Service Corp., 360 F.3d 1103, 1121 (9th Cir. 2004).
To establish
a prima facie case of disparate treatment discrimination under
Title VII, a plaintiff must demonstrate that: (1) he belongs to a
protected class; (2) he was performing his job satisfactorily;
9
(3) he suffered an adverse employment action; and (4) similarly
situated employees outside of his protected class were treated
more favorably.
See Cornwell v. Electra Cent. Credit Union, 439
F.3d 1018, 1028 (9th Cir. 2006) (citing McDonnell Douglas Corp.
V. Green, 411 U.S. 792, 802 (1973)).
The Ninth Circuit Court of Appeals in Starr v. Baca examined
recent Supreme Court cases on pleadings, including those dealing
with Title VII claims, and explained two principles relevant to
analyzing the sufficiency of such pleadings:
First, to be entitled to the presumption of truth,
allegations in a complaint or counterclaim may not
simply recite the elements of a cause of action, but
must contain sufficient allegations of underlying
facts to give fair notice and to enable the opposing
party to defend itself effectively. Second, the
factual allegations that are taken as true must
plausibly suggest an entitlement to relief, such
that it is not unfair to require the opposing party
to be subjected to the expense of discovery and
continued litigation.
652 F.3d 1202, 1216 (9th Cir. 2011); see also Heyer v.
Governing Bd. Of Mt. Diable Unified School Dist., 2013 WL
1320499, at *1 (9th Cir. April 3, 2013).
This Court must first analyze the four McDonnell Douglas
elements to determine whether a complaint sufficiently pleads
each element of the disparate treatment prima facie case and
provides enough factual allegations to plausibly infer each
element of the prima facie case.
This Court agrees with other
Ninth Circuit district courts’ interpretation of these
10
principles.
McAllister v. Hawaiiana Mgmt. Co., Ltd., Civ. No.
11-00056 DAE-KSC, 2012 WL 292955 at *7 (D. Haw. Jan. 30, 2012);
Washington v. Certainteed Gypsum, Inc., 2011 WL 3705000, at *5
(D.Nev. Aug. 24, 2011); Sablan v. A.B. Won Pat Int'l Airport,
2010 WL 5148202, at *4 (D. Guam Dec. 9, 2010).
Mahoe sufficiently alleges the first two necessary elements
of a disparate treatment discrimination claim by stating that he
belongs to a protected class as a Native Hawaiian/Pacific
Islander (Complaint at ¶ 2, ECF. No. 1-1), and that he completed
his job duties satisfactorily.
(Id. at ¶ 10-m).
Mahoe is not as
clear in his pleading of the last two necessary elements of a
disparate treatment claim.
1.
Reduction of Income
An adverse employment action materially affects the
compensation, terms, conditions, or privileges of employment.
Chuang v. Univ. of Cal. Davis, Bd. of Trustees, 225 F.3d 1115,
1126 (9th Cir. 2000).
Mahoe claims that he suffered an adverse
employment action in January 2010 when the Union decreased his
income.
(Complaint at ¶ 10-e, ECF. No. 1-1).
Reduction of pay
can be an adverse employment action.
The fourth element of a discrimination claim requires a
showing that adverse employment action was not taken against
similarly situated employees.
See Cornwell, 439 F.3d at 1028.
Plaintiff Mahoe claims that a Caucasian Recording Correspondent
11
Secretary, residing in Utah, also refused to relocate to
California, but he did not have his pay decreased.
¶ 10-f, ECF No. 1-1).
(Complaint at
Mahoe appears to claim that this
individual is similarly situated to him but provides no details
to support his claim.
Individuals are similarly situated when
they have similar jobs and engage in similar conduct.
Vasquez v.
Cnty. of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003).
“Employees in supervisory positions are generally deemed not to
be similarly situated to lower level employees.”
Id.
The Complaint lacks sufficient information to show that the
position of Recording Correspondent Secretary was similar to
Mahoe’s position of Treasurer.
See id.
Mahoe does not provide
any examples of other similarly situated employees who did not
have their income reduced for refusing to relocate.
The
Complaint fails to allege sufficient facts for a disparate
treatment claim based on reduced income.
See Iqbal, 129 S.Ct. at
1949 (citing Twombly, 550 U.S. at 570).
The Union’s Motion to Dismiss, as to the disparate treatment
claim based on his reduced income, is GRANTED WITH LEAVE TO
AMEND.
2.
Plaintiff’s Placement on Administrative Leave
Plaintiff Mahoe claims he suffered an additional adverse
employment action when on May 26, 2010, and July 26, 2010, the
Union placed him on administrative leave.
12
(Complaint at ¶ 10-g,
10-i, ECF. No. 1-1).
Placement on administrative leave may
constitute an adverse employment action.
Dahlia v. Rodriguez, __
F.3d __, 2013 WL 4437594 at *13 (9th Cir. August 21, 2013).
Mahoe does not sufficiently plead the third element of a
discrimination claim here, because he does not indicate the
circumstances under which the Union placed him on administrative
leave.
The Complaint fails to sufficiently allege that Mahoe’s
placement was connected in any way to discrimination.
Mahoe also does not sufficiently allege the fourth element
of a discrimination claim based on disparate treatment.
The
fourth element of a discrimination claim requires the plaintiff
to establish that similarly situated employees outside the
protected class were treated more favorably when engaged in the
same conduct that led to his administrative leave.
F.3d at 641.
Vasquez, 349
The Complaint fails to allege sufficient facts for
a disparate treatment claim based on the Defendant Union placing
Plaintiff Mahoe on administrative leave.
See Iqbal, 129 S.Ct. at
1949 (citing Twombly, 550 U.S. at 570).
The Union’s Motion to Dismiss, as to the disparate treatment
claim based on his placement on administrative leave, is GRANTED
WITH LEAVE TO AMEND.
B.
Constructive Discharge
“Constructive discharge” occurs when an employer creates or
permits working conditions “so intolerable that a reasonable
13
person in the employee’s position would have felt compelled to
resign.”
Penn. State Police v. Suders, 542 U.S. 129, 143 (2004);
see Jordan v. Clark, 847 F.2d 1368, 1377 (9th Cir. 1988).
Plaintiff sufficiently alleges the first two necessary
elements of his claim for constructive discharge by stating that
he belongs to a protected class as a Native Hawaiian/Pacific
Islander (ECF. 1-1 at ¶ 2), and that he completed his job duties
satisfactorily.
(Id. at ¶ 10-m).
The Complaint contains little information in support of
Plaintiff’s claim that his working conditions were intolerable.
The Complaint only alleges that the Defendant Union conducted
investigations of Mahoe on various occasions.
There are
insufficient facts to state a claim of constructive discharge.
See Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 570).
The Union’s Motion to Dismiss, as to the claim based on
constructive discharge, is GRANTED WITH LEAVE TO AMEND.
C.
Retaliation
To state a claim for retaliation under Title VII, a
plaintiff must establish that: “(1) the employee engaged in a
protected activity, (2) she suffered an adverse employment
action, and (3) there was a casual link between the protected
activity and the adverse employment decision.”
Davis v. Team
Elec. Co., 520 F.3d 1080, 1093-94 (9th Cir. 2008); Raad v.
14
Fairbanks North Star Borough School Dist., 323 F.3d 1185, 1197
(9th Cir. 2003).
The United States Supreme Court recently held that Title VII
retaliation claims must be proved according to the traditional
principles of but-for causation.
Univ. of Texas Sw. Med. Ctr. v.
Nassar, 133 S.Ct. 2517, 2533 (2013).
A plaintiff must prove that
the unlawful retaliation would not have occurred in the absence
of the alleged wrongful action or actions of the employer.
Id.
Plaintiff appears to claim that he was retaliated against
for complaining of race discrimination.
1.
Investigations of Plaintiff
According to the Complaint, Plaintiff was placed under
investigation on two occasions after he complained of race
discrimination on June 16, 2010.
First, on June 21, 2010, Plaintiff was placed under
investigation.
(Complaint at ¶ 10-h, ECF. 1-1).
Plaintiff does
not provide any details of the outcome of the June 21, 2010
investigation.
Second, on July 26, 2010, Plaintiff was placed under
investigation based on complaints submitted by two employees
Plaintiff recommended for termination.
(Id. at 10-i).
During
the investigation, Plaintiff was placed on unpaid administrative
leave.
(Id.).
According to Plaintiff, at the conclusion of the
investigation, the majority of the two employees’ allegations
15
were found to be unsubstantiated, and there was only one finding
of a minor impropriety.
(Id. at ¶ 10-j).
Under the Nassar case, Plaintiff has not stated a plausible
claim that the investigations were retaliation.
Plaintiff has
not stated sufficient facts to establish that but-for Defendant’s
alleged unlawful actions, Plaintiff would not have been placed
under investigation.
2.
Retaliation by Constructive Discharge
Plaintiff Mahoe appears to also be attempting to state a
retaliation element in connection with his claim of constructive
discharge.
(Complaint at ¶ 12, ECF. No. 1-1).
To state a retaliation claim, a causal link is necessary
between the plaintiff’s Title VII complaint and the adverse
employment action.
See Univ. Of Texas Sw. Med. Ctr. v. Nassar,
133 S. Ct. 2517, 2533 (2013).
“[C]ausation can be inferred from
timing alone when an adverse employment action follows on the
heels of protected activity.”
Villiarimo v. Aloha Island Air,
Inc., 281 F.3d 1054, 1065 (9th Cir. 2002).
Here, Mahoe’s Complaint fails to supply sufficient
information to connect his June 2010 complaint of race
discrimination to his discharge in January 2011, more than seven
months later.
See id.
Without more, the time lapse is too long
to give rise to an inference of causation.
16
Id.
In Yartzoff v. Thomas, the Ninth Circuit Court of Appeals
held that a nine month lapse between an employee’s complaint of
discrimination and an adverse employment action was insufficient
to infer causation.
809 F.2d 1371, 1376 (9th Cir. 1987).
The
Ninth Circuit Court of Appeals more recently held in Villiarimo
that an 18-month lapse was insufficient to infer causation, and
it cited other decisions in which a shorter temporal proximity
was also insufficient.
281 F.3d at 1065 (citing Filipovic v. K &
R Express Sys., Inc., 176 F.3d 390, 398-99 (7th Cir. 1999) (four
months too long); Adusumilli v. City of Chicago, 164 F.3d 353,
363 (7th Cir. 1998) (eight months too long); Davidson v.
Midelfort Clinic, Ltd., 133 F.3d 499, 511 (7th Cir. 1998) (five
months too long); Conner v. Schnuck Markets, Inc., 121 F.3d 1390,
1395 (10th Cir. 1997) (four months too long).
The Complaint does not contain sufficient factual
allegations in connection with constructive discharge to state a
retaliation claim.
Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550
U.S. at 570).
The Union’s Motion to Dismiss, as to the retaliation claim,
is GRANTED WITH LEAVE TO AMEND.
Count I fails to state a claim for which relief can be
granted pursuant to Federal Rules of Civil Procedure 8 and
12(b)(6).
Count I is DISMISSED WITH LEAVE TO AMEND.
17
COUNT II –– Defamation
In order to sustain a claim for defamation, a plaintiff must
establish: (1) a false and defamatory statement concerning
another; (2) an unprivileged publication to a third party; (3)
fault amounting at least to negligence on the part of the
publisher or actual malice where the plaintiff is a public
figure; and (4) either actionability of the statement
irrespective of special harm or the existence of special harm
caused by the publication.
Gold v. Harrison, 962 P.2d 353, 359
(Haw. 1998).
Mahoe’s Complaint alleges that the Union’s “agents and/or
employees made defamatory statements regarding Plaintiff’s lack
of integrity and competence to perform his duties of Treasurer of
the Union.”
1.
(Complaint at ¶ 15, ECF. No. 1-1).
False and Defamatory Statement
Mahoe fails to allege the first necessary element of a
defamation claim.
The Complaint lacks information about the
actual content of any allegedly defamatory statements.
There is
no identification of an author of any such statements.
There is
no information about when any defamatory statements were made.
2.
Unprivileged Publication to a Third Party
The Complaint fails to allege that there was an unprivileged
third-party to whom the statements were published.
18
“Publication” for a defamation claim means a communication
to some third party other than the person defamed.
See Vlasaty
v. Pacific Club, 670 P.2d 827, 560 (Haw. App. 1983).
Mahoe fails
to allege that the Union made a defamatory communication to some
third party other than him.
The Complaint also contains insufficient facts to determine
whether any privilege existed.
A qualified privilege arises when
the author of a defamatory statement reasonably acts in the
discharge of some public or private duty, legal, moral, or social
and where the publication concerns a subject matter in which the
author and the recipients of the publication have a correlative
interest or duty.
See Kainz v. Lussier, 667 P.2d 797, 801–02
(Haw. App. 1983).
Mahoe fails to allege sufficient facts for the second
required element of a defamation claim that the statement be
published and unprivileged.
3.
Negligence or Actual Malice
The third element of a defamation claim requires fault
amounting at least to negligence on the part of the publisher or
actual malice where the plaintiff is a public figure.
P.2d at 359.
Gold, 962
Mahoe sufficiently alleges the third element of a
defamation claim because he states that the “actions of
Defendants were malicious and intentional discrimination.”
(Complaint at ¶ 16, ECF. No. 1-1).
19
4.
Actionability of the Statement or Special Harm
The Plaintiff does not allege any facts about the
actionability of the statement or the harm he suffered as
required by the fourth element.
The Plaintiff falls far short of articulating a defamation
claim.
See Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at
570).
Count II fails to state a claim for which relief can be
granted pursuant to Federal Rules of Civil Procedure 8 and
12(b)(6).
Count II is DISMISSED WITH LEAVE TO AMEND.
CONCLUSION
Defendant Operating Engineers Local Union No. 3 of the
International Union of Operating Engineers, AFL-CIO’s “MOTION TO
DISMISS COUNT II (DEFAMATION) AND/OR FOR MORE DEFINITE STATEMENT”
(ECF. No. 7) is GRANTED WITH LEAVE TO AMEND as to both (Count I)
and (Count II).
Defendant Union’s request for a more definite
statement is DENIED.
Plaintiff Mahoe has until November 5, 2013
to file an Amended Complaint consistent with this Order.
Failure
to file an Amended Complaint consistent with this Order by
20
November 5, 2013 will result in dismissal of the entire matter.
IT IS SO ORDERED.
DATED: September 27, 2013, Honolulu, Hawaii.
/S/ Helen Gillmor
Helen Gillmor
United States District Judge
Willliam K. Mahoe v. Operating Engineers Local Union No. 3, et
al; Civ. No. 13-00186 HG-BMK; ORDER GRANTING DEFENDANT OPERATING
ENGINEERS LOCAL UNION NO. 3 OF THE INTERNATIONAL UNION OF
OPERATING ENGINEERS, AFL-CIO’S “MOTION TO DISMISS COUNT II
(DEFAMATION) AND/OR FOR MORE DEFINITE STATEMENT”(ECF. No. 7) WITH
LEAVE TO AMEND.
21
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