Baranyi v. Pacific Aquaculture & Coastal et al

Filing 116

ORDER DISMISSING CLAIMS AGAINST THE UNIVERSITY OF HAWAII AND INDIVIDUAL DEFENDANTS IN THEIR OFFICIAL CAPACITIES; ORDER DISMISSING AGE DISCRIMINATION IN EMPLOYMENT ACT CLAIMS AGAINST INDIVIDUAL DEFENDANTS IN THEIR INDIVIDUAL CAPACITIES; ORDER DECLI NING TO EXERCISE SUPPLEMENTAL JURISDICTION OVER REMAINING STATE-LAW CLAIMS AGAINST INDIVIDUAL DEFENDANTS IN THEIR INDIVIDUAL CAPACITIES re 110 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 6/16/2015. "The court d ismisses the ADEA claims and the tort claims against the University of Hawaii and Haws and Short in their official capacities. Having dismissed the claims providing the court with federal question jurisdiction, the court declines to exercise su pplemental jurisdiction over the remaining state-law tort claims asserted against Haws and Short in their individual capacities. This ruling does not mean that Baranyi cannot sue the University of Hawaii, Haws, or Short. He may file suit in s tate court, although this court is not suggesting that any claims in such a suit would be cognizable. The Clerk of Court is directed to enter judgment in favor of Defendants and to close this case." (emt, )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). Sandor V. Baranyi served by first class mail at the address of record on June 16, 2015.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
SANDOR V. BARANYI,

)
)
Plaintiff,
)
)
vs.
)
)
UNIVERSITY OF HAWAII;
)
RESEARCH CORPORATION OF THE
)
UNIVERSITY OF HAWAII; MARIA
)
C. HAWS; and RICHARD L.
)
SHORT,
)
)
Defendants.
)
)
_____________________________ )

CIVIL NO. 13-00667 SOM-KSC
ORDER DISMISSING CLAIMS
AGAINST THE UNIVERSITY OF
HAWAII AND INDIVIDUAL
DEFENDANTS IN THEIR OFFICIAL
CAPACITIES; ORDER DISMISSING
AGE DISCRIMINATION IN
EMPLOYMENT ACT CLAIMS AGAINST
INDIVIDUAL DEFENDANTS IN
THEIR INDIVIDUAL CAPACITIES;
ORDER DECLINING TO EXERCISE
SUPPLEMENTAL JURISDICTION
OVER REMAINING STATE-LAW
CLAIMS AGAINST INDIVIDUAL
DEFENDANTS IN THEIR
INDIVIDUAL CAPACITIES

ORDER DISMISSING CLAIMS AGAINST THE UNIVERSITY OF HAWAII AND
INDIVIDUAL DEFENDANTS IN THEIR OFFICIAL CAPACITIES;
ORDER DISMISSING AGE DISCRIMINATION IN EMPLOYMENT ACT CLAIMS
AGAINST INDIVIDUAL DEFENDANTS IN THEIR INDIVIDUAL CAPACITIES;
ORDER DECLINING TO EXERCISE SUPPLEMENTAL JURISDICTION OVER
REMAINING STATE-LAW CLAIMS AGAINST INDIVIDUAL
DEFENDANTS IN THEIR INDIVIDUAL CAPACITIES
I.

INTRODUCTION.
Plaintiff Sandor V. Baranyi’s Third Amended Complaint

asserts violations of the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. §§ 621-34, and state-law claims of defamation
and negligent infliction of emotional distress (“NIED”).

See ECF

No. 62.
On April 20, 2015, Defendants University of Hawaii,
Maria C. Haws, and Richard L. Short moved to dismiss the Third
Amended Complaint.

That motion is granted in part.

Because the

University of Hawaii, as well as Short and Haws in their official

capacities, has Eleventh Amendment immunity with respect to the
ADEA and state-law claims, the claims are dismissed.

To the

extent Haws and Short seek dismissal of individual-capacity
claims under the ADEA, the court also grants the motion, as the
ADEA does not provide for individual liability under the
circumstances presented here.

Finally, although Haws and Shorts

seek dismissal of the individual-capacity state-law claims,
arguing that those claims are really claims that should be
asserted against the University of Hawaii under section 304A-108
of Hawaii Revised Statutes, the court does not reach that issue.
Instead, the court declines to exercise supplemental jurisdiction
over the remaining individual-capacity state-law claims.
Pursuant to Local Rule 7.2(d), the court decides this
matter without a hearing.
II.

BACKGROUND.
On December 4, 2013, Plaintiff Sandor V. Baranyi filed

the original Complaint in this matter, naming as Defendants
Pacific Aquaculture and Coastal Resources Center, Maria Haws, and
Richard Short.

See ECF No. 1.

The Complaint alleged that

Baranyi, a student at the University of Hawaii at Hilo, had been
seeking employment at Pacific Aquaculture for three years but was
told by Haws that no jobs were available there.

Id.

On January 10, 2014, Baranyi filed an Amended
Complaint, naming as Defendants RCUH, Haws, and Short.

2

See ECF

No. 12.

The Amended Complaint included no claims against Pacific

Aquaculture.

Id.

On February 25, 2014, RCUH sought dismissal of

the Amended Complaint, arguing that the allegations of the
Amended Complaint were insufficient to state a claim against
RCUH.

See ECF No. 21.

At a hearing on the motion, Baranyi

agreed that his Amended Complaint did not outline alleged
wrongdoing on the part of RCUH.

Accordingly, the court granted

the motion and gave him leave to file a Second Amended Complaint.
See ECF Nos. 41 and 45.
On May 2, 2014, Baranyi filed a Second Amended
Complaint.

See ECF No. 46.

On May 5, 2014, RCUH filed a motion

to dismiss that complaint, again arguing that the pleading failed
to allege a viable claim against it.

See ECF No. 48.

The court

agreed with RCUH that the Second Amended Complaint failed to
properly allege a claim against it and granted the motion.
ECF No. 58.

See

The court gave Baranyi leave to file a Third Amended

Complaint that “identifies who is being sued, what the legal
basis is for each claim, what facts support the elements of each
claim, and what remedies are being requested.”

Id., PageID #

291.
On July 17, 2014, Baranyi filed his Third Amended
Complaint.

See ECF No. 62.

Baranyi alleges that, on September

12, 2012, Haws, a tenured University of Hawaii professor,
retaliated against him by filing a false accusation of disruptive

3

behavior with the Dean of Student Affairs shortly after Baranyi
complained to Haws about age discrimination and unfair hiring
practices.

Id., PageID # 297.

Baranyi also claims that Haws

retaliated against him the following week by filing false claims
of defamation and harassment with the Dean of Student Affairs and
by filing a workplace violence charge with campus security.
PageID #s 297-98.

Id.,

According to Baranyi, Haws further retaliated

against him by seeking a temporary restraining order against him
in state court.

Id., PageID # 298.

Baranyi says Haws also

retaliated against him by lying to the EEOC investigator who was
looking into an administrative charge filed by Baranyi and by
getting Defendant Richard Short to submit a false statement to
that investigator.

Id., PageID # 298-99.

Baranyi, who is 47,

additionally claims that Haws discriminated against him based on
his age by lying to him about the availability of “student
assistant jobs.”

Id., PageID # 301.

The Third Amended Complaint alleges that Short is an
employee of and supervisor at the University of Hawaii.

It

alleges that Short’s false statement to the EEOC investigator was
also a form of retaliation, presumably in response to Baranyi’s
filing of an administrative charge with the EEOC.
# 299.

4

Id., PageID

The Third Amended Complaint asserts that the University
of Hawaii is liable for the actions of its tenured professor and
its supervisors, Haws and Short.

Id., PageID # 299-301.

The Third Amended Complaint asserts that the University
of Hawaii, Haws, and Short defamed Baranyi and that the
University of Hawaii and Haws negligently caused Baranyi
emotional distress.

See id., PageID #s 302-304.

On August 20, 2014, the court dismissed the claims
asserted against RCUH with prejudice.
III.

See ECF No. 74.

STANDARD.
To the extent Defendants’ motion seeks dismissal of

claims under Rule 12(b)(6), the court incorporates by reference
the standard set forth in its order of August 20, 2014.

See ECF

No. 74, PageID #s 396-399.
With respect to Defendants’ Eleventh Amendment immunity
challenge, the court notes that the Ninth Circuit has called
Eleventh Amendment immunity “quasi-jurisdictional.”

Bliemeister

v. Bliemeister (In re Bliemeister), 296 F.3d 858, 861 (9th Cir.
2002).

Under Bliemeister, sovereign immunity “may be forfeited

where the state fails to assert it and therefore may be viewed as
an affirmative defense.”

Id.

Subsequent to Bliemeister, the

Ninth Circuit has tacitly approved of applying Rule 12(b)(1) of
the Federal Rules of Civil Procedure to a claim of Eleventh
Amendment immunity.

See Savage v. Glendale Union High Sch.,

5

Dist. No. 205, Maricopa County, 343 F.3d 1036, 1040 (9th Cir.
2003) (reviewing denial of Rule 12(b)(1) motion to dismiss based
on Eleventh Amendment immunity).

At the same time, the Ninth

Circuit has noted that Eleventh Amendment immunity “‘does not
implicate a federal court’s subject matter jurisdiction in any
ordinary sense’ and that it ‘should be treated as an affirmative
defense.’”

Tritchler v. County of Lake, 358 F.3d 1150, 1153-54

(9th Cir. 2004) (quoting ITSI TV Prods., Inc. v. Agric. Ass'ns, 3
F.3d 1289, 1291 (9th Cir. 1993)).
Because the current motion claims Eleventh Amendment
immunity based on the allegations of the Complaint, without
resorting to other evidence, whether the court applies Rule
12(b)(1) or Rule 12(b)(6) with respect to examining Defendants’
Eleventh Amendment immunity makes no difference.

Under either

rule, all allegations of material fact are taken as true and
construed in the light most favorable to the nonmoving party.
See Pride v. Correa, 719 F.3d 1130, 1133 (9th Cir. 2013)
(“Whether we construe Defendants’ motion as one under Rule
12(b)(6) or as a facial attack on subject matter jurisdiction
under Rule 12(b)(1), all factual allegations in Pride’s complaint
are taken as true and all reasonable inferences are drawn in his
favor.”).

6

IV.

ANALYSIS.
A.

The University of Hawaii and the Individual
Defendants in Their Official Capacities Have
Eleventh Amendment Immunity With Respect to All
Claims Asserted in the Third Amended Complaint.

The Eleventh Amendment states: “The Judicial power of
the United States shall not be construed to extend to any suit in
law or equity, commenced or prosecuted against one of the United
States by Citizens of another State, or by Citizens or Subjects
of any Foreign State.”

Accordingly, under the Eleventh

Amendment, a state is immune from suit brought in federal court
by its own citizens or citizens of other states.

Papasan v.

Allain, 478 U.S. 265, 276 (l986); Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 100 (1984).

Unless a state unequivocally

waives sovereign immunity or Congress exercises its power under
the Fourteenth Amendment to override that immunity, the state,
its agencies, and its officials are immune from suit under the
Eleventh Amendment for official actions or omissions.

Will v.

Michigan Dep’t of State Police, 491 U.S. 58, 66-67 (1989);
Krainski v. Nev. ex rel. Bd. of Regents of Nev. Sys. of Higher
Educ., 616 F.3d 963 967 (9th Cir. 2010) (Eleventh Amendment
immunity extends to state instrumentalities and agencies, as well
as state officials in their official capacities).
Suits against officials in their official capacities
are considered suits against their offices such that they are
considered suits against the states for Eleventh Amendment
7

purposes.

See Seven Up Pete Venture v. Schweitzer, 523 F.3d 948,

952 (9th Cir. 2008).

“A narrow exception exists where the relief

sought is prospective in nature and is based on an ongoing
violation of the plaintiff’s federal constitutional or statutory
rights.”

Krainski, 616 F.3d at 967-68 (quotation marks and

citation omitted).

Accord Ex parte Young, 209 U.S. 123 (1908)

(suit challenging constitutionality of state official’s action is
not one against state).

Accordingly, when “plaintiffs seek

prospective injunctive relief against the state official for a
violation of federal law, the Eleventh Amendment does not bar the
action.”

Seven Up, 523 F.3d at 953.

This narrow exception is

inapplicable because Baranyi is only seeking monetary relief.
Because the University of Hawaii is an agency of the
State of Hawaii for Eleventh Amendment immunity purposes, it and
its employees in their official capacities have Eleventh
Amendment immunity from suits in federal court.

Oyama v. Univ.

of Hawaii, 2013 WL 1767710, *6 (D. Haw. Apr. 23, 2013) (“The
University of Hawaii is an agency of the State and entitled to
Eleventh Amendment immunity.”); Mukaida v. Hawaii, 159 F. Supp.
2d 1211, 1221 (D. Haw. 2001) (same); see also Hall v. State, 791
F.2d 759, 761 (9th Cir. 1986) (“Little question exists with
respect to the University of Hawaii, the Law School, and the
board of regents.
state.”).

They are clearly immune as agencies of the

Absent a congressional override or a waiver of its

8

immunity, the University of Hawaii and its employees in their
official capacities have Eleventh Amendment immunity from the
claims asserted in the Third Amended Complaint.
1.

The ADEA Claims Against the University of
Hawaii and the Individual Defendants in Their
Official Capacities Are Dismissed.

Baranyi’s Third Amended Complaint asserts various ADEA
claims.

Although the ADEA contains a clear statement that

Congress intended to abrogate the states’ Eleventh Amendment
immunity, that abrogation exceeded its power under the Fourteenth
Amendment.

See Kimel v. Florida Bd. of Regents, 528 U.S. 62, 74-

75, 91 (2000) (Congress did not validly abrogate states’ Eleventh
Amendment Immunity).

States therefore have Eleventh Amendment

immunity from ADEA claims.

Id.; see also Ahlmeyer v. Nev. Sys.

of Higher Educ., 555 F.3d 1051, 1054, 1057 (9th Cir. 2009) (after
dismissing ADEA claims on Eleventh Amendment immunity grounds,
district court properly denied leave to file amended complaint to
assert new age discrimination claims under § 1983, as ADEA is
exclusive remedy for federal claims of age discrimination in
employment).
There is no contention that Hawaii has waived its
Eleventh Amendment immunity with respect to claims under the
ADEA.

Accordingly, to the extent Baranyi’s Third Amended

Complaint asserts claims under the ADEA against the University of
Hawaii and Haws and Short in their official capacities,

9

Defendants have Eleventh Amendment immunity with respect to those
claims.
2.

The Defamation and Emotional Distress Claims
Asserted Against the University of Hawaii and
the Individual Defendants in Their Official
Capacities Are Dismissed.

The Eleventh Amendment also bars the defamation and
emotional distress claims asserted against the University of
Hawaii and Haws and Short in their official capacities.
There is no contention that Congress abrogated the
state’s Eleventh Amendment immunity with respect to state-law
torts.

Nor has Hawaii unequivocally waived that immunity.

An

unequivocal waiver may be found when (1) a state expressly
consents to federal jurisdiction in the context of the
litigation; (2) a state statute or constitutional provision
expressly provides for suit in a federal court; or (3) Congress
clearly intends to condition a state’s participation in a program
or activity on that state’s waiver of its immunity.

Charley’s

Taxi Radio Dispatch Corp. v. Sida of Haw., Inc., 810 F.2d 869,
873 (9th Cir. 1987).
Baranyi does not point to any waiver of Eleventh
Amendment immunity applicable to the state-law claims in this
case.

Nor could the court locate such a waiver.

The State of

Hawaii has only waived its sovereign immunity with respect to
certain types of suits.

In section 661-1 of the Hawaii Revised

Statutes, for example, Hawaii consents to being sued for monetary
10

relief for violations of state statutes, state regulations, and
contracts entered into with the state.
§ 661-1.

See Haw. Rev. Stat.

“However this statute does not extend consent to suits

in federal court.”

Office of Hawaiian Affairs v. Dep't of Educ.,

951 F. Supp. 1484, 1491 (D. Haw. 1996).

Similarly, in chapter

662 of the Hawaii Revised Statutes, Hawaii consents to being sued
in tort actions.

“However this provision also does not operate

as a waiver . . . to suit in federal court.” Id.; see also Doe ex
rel. Doe v. State of Haw. Dep’t of Educ., 351 F. Supp. 2d 998,
1018 (D. Haw. 2004) (“Although the State of Hawaii generally
waives . . . sovereign immunity as to torts of its employees in
the Hawaii State Tort Liability Act, H.R.S. ch. 662, this waiver
only applies to claims brought in state courts and does not
constitute a waiver of the State’s Eleventh Amendment
immunity.”); Pahk v. Hawaii, 109 F. Supp. 2d 1262, 1268
(D. Haw.2000) (“Although the State of Hawaii consents to being
sued in tort actions[,] . . . that consent applies only to cases
brought in the state courts of Hawaii, not to cases brought in
federal courts.”); cf. Fordyce v. City of Seattle, 55 F.3d 436,
441 (9th Cir. 1995) (“Although [a state] may waive the protection
of the Eleventh Amendment’s jurisdictional bar by passing a
statute consenting to be sued, a statute consenting to suit in
state court does not constitute consent to suit in federal
court.”).

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B.

The ADEA Claims Asserted Against the Individual
Defendants in Their Individual Capacities Are
Dismissed.

Haws and Short argue that the ADEA claims asserted
against them in their individual capacities must be dismissed
because there is no individual liability for such claims.

The

court agrees and dismisses those claims because individuals are
not liable for money damages under the ADEA.

See Miller v.

Maxwell’s Int’l Inc., 991 F.2d 583, 587–88 (9th Cir. 1993).

In

Miller, the Ninth Circuit reasoned that, because the ADEA limits
liability to employers with twenty or more employees, it would be
“inconceivable that Congress intended to allow civil liability to
run against individual employees.”
C.

The Court Declines to Exercise Supplemental
Jurisdiction Over the Remaining State-Law Claims.

Given the dismissal of the claims conferring federal
question jurisdiction, this court now considers whether it should
exercise supplemental jurisdiction over the remaining state law
claims asserted against Haws and Short in their individual
capacities.

Supplemental jurisdiction, unlike federal question

or diversity jurisdiction, is not mandatory.

A court may decline

to exercise supplemental jurisdiction over a state law claim if:
(1) the claim raises a novel or complex issue of state law;
(2) the state law claim substantially predominates over the claim
or claims over which the district court has original
jurisdiction; (3) the district court has dismissed all claims
12

over which it has original jurisdiction; or (4) in exceptional
circumstances, there are other compelling reasons for declining
jurisdiction. 28 U.S.C. § 1367.
Supplemental jurisdiction is a doctrine of discretion,
not of a plaintiff’s right.

See City of Chicago v. Int'l College

of Surgeons, 522 U.S. 156, 172 (1997); United Mine Workers of Am.
v. Gibbs, 383 U.S. 715, 726 (1966).

When, as here, “the federal

claims are dismissed before trial, even though not insubstantial
in a jurisdictional sense, the state claims should be dismissed
as well.”

Gibbs, 383 U.S. at 726.

Although the Supreme Court

has stated that such a dismissal is not “a mandatory rule to be
applied inflexibly in all cases,” it has also recognized that,
“in the usual case in which all federal-law claims are eliminated
before trial, the balance of factors to be considered under the
pendent jurisdiction doctrine--judicial economy, convenience,
fairness, and comity--will point toward declining to exercise
jurisdiction over the remaining state-law claims.”
Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988).
Having dismissed the federal question claims, the court
declines to exercise supplemental jurisdiction over the remaining
state-law claims and dismisses them.

In so doing, the court

recognizes that Defendants have asked for dismissal of the
individual capacity tort claims based on section 304A-108 of
Hawaii Revised Statutes.

That section states, “Notwithstanding

13

any other law to the contrary, all claims arising out of the acts
or omissions of the university or the members of its board of
regents, its officers, or its employees . . . may be brought
only pursuant to this section, and only against the university.”
Haws and Short argue that, because section 304A-108 requires
Baranyi’s claims to be asserted against the University of Hawaii,
and because the university has Eleventh Amendment immunity from
those claims, the defamation and NIED claims must be dismissed.
The court does not reach the issue of whether section 304A-108
must be read so broadly and thinks that, under the circumstances
presented here, that issue is best left to the state court for
adjudication.
The argument advanced by Haws and Short might be
extended to provide that, if an employee of the university
brought a gun to campus and killed multiple people, claims could
only be asserted against the university.

Yet, the term “all

claims” in section 304A-108 may not have been intended to make
the university liable for all torts of its employees outside the
course and scope of their employment.

Instead, as the

Intermediate Court of Appeals noted in Boyd v. University of
Hawaii, 2012 WL 503797, *3 (Haw. Ct. App. Feb. 13, 2012), “It is
clear from the plain language of this statute that only [the]
University itself may be sued for acts or omissions of its
employees acting in their official capacities.”

14

The court recognizes that, in Hunger v. University of
Hawaii, 2013 WL 6147673 (D. Haw. Nov. 22, 2013) and in McNally v.
University of Hawaii, 780 F. Supp. 2d 1037 (D. Haw. 2011), this
court applied section 304A-108 to individual-capacity claims.
But those claims were barred by other law as well, and no
challenge was raised to the applicability of section 304A-108.
Additionally, the court notes that the University has taken a
different position with respect to the predecessor of section
304A-108, which was section 304-6.

In Mukaida v. Hawaii, 159 F.

Supp. 2d 1211 (2001), the university did not argue under the
identical language of section 304-6 that every tort claim against
an individual employee had to be asserted only against the
university.
Under the circumstances presented here, the court
declines to exercise supplemental jurisdiction, leaving it to the
state courts to decide the issue of the scope of section 304A108.
V.

CONCLUSION.
The court dismisses the ADEA claims and the tort claims

against the University of Hawaii and Haws and Short in their
official capacities.

Having dismissed the claims providing the

court with federal question jurisdiction, the court declines to
exercise supplemental jurisdiction over the remaining state-law

15

tort claims asserted against Haws and Short in their individual
capacities.
This ruling does not mean that Baranyi cannot sue the
University of Hawaii, Haws, or Short.

He may file suit in state

court, although this court is not suggesting that any claims in
such a suit would be cognizable.
The Clerk of Court is directed to enter judgment in
favor of Defendants and to close this case.

IT IS SO ORDERED.
DATED: Honolulu, Hawaii, June 16, 2015.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Baranyi v. Univ. of Hawaii, et al., Civ. No. 13-00667 SOM/KSC; ORDER DISMISSING CLAIMS
AGAINST THE UNIVERSITY OF HAWAII AND INDIVIDUAL DEFENDANTS IN THEIR OFFICIAL
CAPACITIES; ORDER DISMISSING AGE DISCRIMINATION IN EMPLOYMENT ACT CLAIMS AGAINST
INDIVIDUAL DEFENDANTS IN THEIR INDIVIDUAL CAPACITIES; ORDER DECLINING TO EXERCISE
SUPPLEMENTAL JURISDICTION OVER REMAINING STATE-LAW CLAIMS AGAINST INDIVIDUAL
DEFENDANTS IN THEIR INDIVIDUAL CAPACITIES

16