St. Classis Brown v. DCK Worldwide LLC

Filing 159

ORDER GRANTING DEFENDANTS' 139 MOTION FOR SUMMARYJUDGMENT TO DISMISS ALL OF PLAINTIFFS CLAIMS. Signed by JUDGE LESLIE E. KOBAYASHI on 1/4/2017. Re: 139 158 - Defendants' Motion for Summary Judgment to Dis miss All of Plaintiff's Claims, filed August 10, 2016, is HEREBY GRANTED. There being no remaining claims, the Court DIRECTS the Clerk's Office to enter judgment in favor of Defendants and close this case on January 26, 2017, unle ss Plaintiff files a motion for reconsideration of this Order by January 23, 2017. (ecs, )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
CLINTON C. ST. CLASSIS BROWN, )
II,
)
)
Plaintiff,
)
)
vs.
)
)
DCK WORLDWIDE LLC, ET AL.,
)
)
)
Defendants.
_____________________________ )

CIVIL 14-00559 LEK-KJM

ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT TO DISMISS ALL OF PLAINTIFF’S CLAIMS
On August 10, 2016, Defendants dck Worldwide LLC, dck
Guam LLC, and DCK Pacific Guam, LLC (collectively “Defendants”)
filed a Motion for Summary Judgment to Dismiss All of Plaintiff’s
Claims (“Motion”).

[Dkt. no. 139.]

On August 29, 2016, pro se

Plaintiff Clinton C. St. Classis Brown, II (“Plaintiff”) filed a
memorandum in opposition, and on October 17, 2016, Defendants
filed a reply.

[Dkt. nos. 147, 151.]

The Court finds this

matter suitable for disposition without a hearing pursuant to
Rule 7.2(d) of the Local Rules of Practice of the United States
District Court for the District of Hawai`i (“Local Rules”).
After careful consideration of the Motion, supporting and
opposing memoranda, and the relevant legal authority, Defendants’
Motion is GRANTED for the reasons set forth below.

BACKGROUND
The background of this matter is well known the
parties, and the Court only repeats those facts that are relevant
to the instant Motion.

Plaintiff was employed by Defendants from

February 2013 to April 2013 as a Construction Quality Control
Manager on a hospital project in Dededo, Guam (“Project”).
[First Amended Complaint, filed 5/6/15 (dkt. no. 37), at ¶¶ 4,
23.]

He states that, a few weeks into his job, a representative

of the hospital asked Plaintiff to show him around the Project.
During the tour, Plaintiff, at the representative’s request,
pointed out problems with the Project.

[Id. at ¶ 7.]

Plaintiff

alleges that, after the tour, Defendants began to treat him
differently.

This treatment included, inter alia:

a reprimand

for calling in sick; verbal abuse for calling in sick; and being
forced to work longer hours than other employees.
12.]

[Id. at ¶¶ 9-

Plaintiff further alleges that he was subjected to racial

slurs and other unfair treatment based on his race.
¶¶ 15-21, 31-37.]

[Id. at

On April 14, 2013, Plaintiff was terminated

from his employment with Defendants, and he states that
Defendants went out of their way to ensure that he did not find
another job in the construction industry in either Guam or
Hawai`i.

[Id. at ¶¶ 23, 25.]
The First Amended Complaint states claims for:

race

discrimination in violation of Title VII of the Civil Rights Act

2

of 1964, as amended (“Title VII”), 42 U.S.C. § 2000e, et seq.
(“Count I”); [id. at ¶ 39;] retaliation in violation of Title VII
(“Count II”); [id. at ¶¶ 40-42;] violation of 42 U.S.C. § 1985
(“Count III”); [id. at ¶¶ 43-44;] race discrimination and
retaliation in violation of Haw. Rev. Stat. Chapter 378 (“Count
IV”); [id. at ¶¶ 45-46;] and intentional infliction of emotional
distress (“IIED”) and/or negligent infliction of emotional
distress (“NIED,” and collectively “Count V”) [id. at ¶¶ 47-50].
On February 3, 2016, Defendants filed a Motion for an
Order Prohibiting Plaintiff Clinton St. Classis Brown II’s Direct
Contact and Harassment of Witnesses, Employees, and Agents of
Defendants (“Contact Motion”).

[Dkt. no. 95.]

On February 12,

2016, Defendants filed a Motion for Protective Order Concerning
Plaintiffs Requests for Production/Discovery of Financial
Information of Defendants, Its Officers, Employees and/or Agents
(“Motion for Protective Order”).1

[Dkt. no. 100.]

On

February 18, 2016, Defendants filed a Motion for Sanctions for
Plaintiff’s Failure to Provide Discovery (“Motion for
Sanctions”).2

[Dkt. no. 104.]

All three motions were heard by

1

The motion sought a protective order, pursuant to Fed. R.
Civ. P. 26(c), regarding Defendants’ financial information,
including, inter alia, tax returns, the value of certain federal
contracts, and employees’ personal tax returns. The Motion for
Protective Order also sought to quash Plaintiff’s subpoenas
seeking such information. [Motion for Protective Order at 2-3.]
2

The Motion for Sanctions sought:
3

the production of
(continued...)

the magistrate judge on April 13, 2016.
magistrate judge orally:

At the hearing, the

granted the Contact Motion, without

attorneys’ fees and costs; granted the Motion for Protective
Order, without attorneys’ fees and costs; and granted in part and
denied in part the Motion for Sanctions, granting all but one of
the sanctions requested by Defendants.
(dkt. no. 116), at 1-2.]

[Minutes, filed 4/13/16

On April 26, 2016, the magistrate judge

filed written orders in accordance with his oral rulings.
dkt. nos. 121-23.

See

On April 19, 2016, Plaintiff appealed the

magistrate judge’s rulings on the motions to this Court, [dkt.
no. 118,] and on June 20, 2016, this Court issued an amended
order affirming the magistrate judge’s rulings (“6/20/16 Order”)
[dkt. no. 132].
DISCUSSION
Plaintiff is proceeding pro se, and the Court must
construe his filings liberally.

See, e.g., Pregana v.

CitiMortgage, Inc., Civil No. 14-00226 DKW-KSC, 2015 WL 1966671,
at *2 (D. Hawai`i Apr. 30, 2015) (“The Court liberally construes
the [plaintiffs’] filings because they are proceeding pro se.”
(citing Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987)).

2

(...continued)
discovery requested and required of Plaintiff pursuant to
previous court orders; sanctions for failure to provide the
discovery within thirty days; and attorneys’ fees and costs for
filing the motion and attending the hearing. [Mem. in Supp. of
Motion for Sanctions at 13.]
4

The Court notes, however, that Plaintiff must still comply with
relevant rules.

See Local Rule LR83.13 (“Pro se litigants shall

abide by all local, federal, and other applicable rules and/or
statutes.”).
I.

Rules Governing Summary Judgment Motions
Local Rule 56.1 states, in relevant part:
(a) Motion Requirements. A motion for summary
judgment shall be accompanied by a supporting
memorandum and a separate concise statement
detailing each material fact as to which the
moving party contends that there are no genuine
issues to be tried that are essential for the
court’s determination of the summary judgment
motion (not the entire case). The motion shall be
heard on the schedule set forth in LR7.2, as
permitted by Fed. R. Civ. P. 56.
(b) Opposition Requirements. Any party who
opposes the motion shall file and serve with his
or her opposing papers a separate document
containing a single concise statement that admits
or disputes the facts set forth in the moving
party’s concise statement, as well as sets forth
all material facts as to which it is contended
there exists a genuine issue necessary to be
litigated.
. . . .
(g) Admission of Material Facts. For purposes of
a motion for summary judgment, material facts set
forth in the moving party’s concise statement will
be deemed admitted unless controverted by a
separate concise statement of the opposing party.

Defendants filed their Concise Statement of Facts (“Defendants’
CSOF”) on August 10, 2016.

[Dkt. no. 140.]

On August 17, 2016,

Plaintiff filed a document titled “Addendum to Ex-Parte Motion”
(“8/17/16 Addendum”).

[Dkt. no. 144.]
5

In an Entering Order

filed the same day (“8/17/16 EO”), [dkt. no. 146,] the Court
stated that the 8/17/16 Addendum appeared to be a response to the
Motion, but that it complied with neither Fed. R. Civ. P. 56 nor
Local Rule 56.1.

[8/17/16 EO at 2.]

Because the 8/17/16

Addendum was submitted before the deadline for Plaintiff’s
opposition, the Court informed Plaintiff that he could resubmit
his opposition and reminded him that it had to comply with all
relevant Federal and Local Rules.

[Id.]

In spite of this,

Plaintiff did not submit a concise statement.3

The Court

therefore DEEMS the Defendants’ material facts set forth in
Defendants’ CSOF ADMITTED.
II.

Violation of 42 U.S.C. § 2000e, et seq. – Count I
Plaintiff alleges that Defendants treated him “in an

oppressively discriminatory manner, creating a ‘hostile work
environment.’”

[First Amended Complaint at ¶ 39.]

This district

court has stated:
A plaintiff may establish disparate treatment
in violation of . . . Title VII through direct
evidence or, alternatively, through the familiar
McDonnell Douglas burden shifting framework. See
3

It is worth noting that, in his memorandum in opposition,
Plaintiff asserts that he is entitled to certain documents under
the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. [Mem. in
Opp. at 4.] Any claim that Plaintiff believes he has under FOIA
is not presently before this Court and cannot be addressed in the
instant Order. Moreover, many of the documents Plaintiff argues
that he is entitled to under FOIA have either already been
produced or were the subject of the Motion for Protective Order
that was granted by the magistrate judge and affirmed by this
Court in the 6/20/16 Order.
6

Surrell v. California Water Serv. Co., 518 F.3d
1097, 1105 (9th Cir. 2008) (discussing standard
with respect to Title VII and [42 U.S.C.] § 1981
claims). . . .
The framework set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973), begins
by requiring a plaintiff to establish a prima
facie case of discrimination. The degree of proof
required to establish a prima facie case for
summary judgment is minimal. See Coghlan v. Am.
Seafoods Co., 413 F.3d 1090, 1094 (9th Cir. 2005).
A prima facie case of disparate treatment requires
a plaintiff to establish that: (1) the plaintiff
is a member of a protected class; (2) the
plaintiff was qualified for the position in issue;
(3) the plaintiff suffered an adverse employment
decision; and (4) one or more employees outside
the protected class with comparable qualifications
and work records did not suffer similar adverse
employment decisions. See, e.g., White v. Pac.
Media Grp., Inc., 322 F. Supp. 2d 1101, 1110 (D.
Haw. 2004).
A plaintiff must demonstrate that his or her
situation is similar in all material respects to
that of employees who received more favorable
treatment. See Moran v. Selig, 447 F.3d 748, 755
(9th Cir. 2006). However, “a plaintiff is not
obligated to show disparate treatment of an
identically situated employee.” McGuinness v.
Lincoln Hall, 263 F.3d 49, 54 (2d Cir. 2001)
(cited approvingly in Selig). Instead,
“individuals are similarly situated when they have
similar jobs and display similar conduct.” Hawn
v. Exec. Jet Mgmt. Inc., 615 F.3d 1151, 1160 (9th
Cir. 2010) (citing Vasquez v. Cnty. of Los
Angeles, 349 F.3d 634, 641 (9th Cir. 2003)
(finding employee not similarly situated if he
“did not engage in problematic conduct of
comparable seriousness” to plaintiff’s conduct)).
Under the McDonnell Douglas framework, once a
plaintiff succeeds in presenting a prima facie
case, the burden then shifts to the defendant to
articulate a “legitimate, nondiscriminatory
reason” for its employment decision. Noyes v.
Kelly Servs., 488 F.3d 1163, 1168 (9th Cir. 2007).
7

“Should the defendant carry its burden, the burden
then shifts back to the plaintiff to raise a
triable issue of fact that the defendant’s
proffered reason was a pretext for unlawful
discrimination.” Id.
Jinadasa v. Brigham Young Univ. - Haw., CIVIL NO. 14-00441
SOM/KJM, 2016 WL 6645767, at *3 (D. Hawai`i Nov. 9, 2016)
(emphasis and some alterations in Jinadasa).
A.

Direct Evidence
In the First Amended Complaint, Plaintiff alleges that

Jack Owen (“Owen”), the construction superintendent, called
Plaintiff a racial slur.

[First Amended Complaint at ¶ 16.]

Moreover, Plaintiff states that John Regis (“Regis”), the
assistant superintendent, heard Owen and did not do anything.
[Id.]

Plaintiff also alleges that, the next day, another co-

worker addressed him using a racial epithet.

[Id. at ¶ 19.]

Plaintiff does not provide any evidence or facts to support these
allegations.
“Where harassment by a coworker is alleged, the
employer can be held liable only where ‘its own negligence is a
cause of the harassment.’”

Swenson v. Potter, 271 F.3d 1184,

1191 (9th Cir. 2001) (quoting Burlington Indus., Inc. v. Ellerth,
524 U.S. 742, 759, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998)).
Further, “an employer cannot be held liable for misconduct of
which it is unaware.”

Id. (some citations omitted) (citing

Brooks v. City of San Mateo, 229 F.3d 917, 924 (9th Cir. 2000)).

8

Plaintiff did not report either of these incidents until after he
was terminated.

[First Amended Complaint at ¶ 24.]

Defendants

investigated both of these claims, and could not substantiate the
claim against Owen and Regis.

[Defs.’ CSOF at ¶ 16.]

Defendants

still counseled Owen and Regis “about appropriate behavior” and
had them “participate[] in site-wide training held on April 23,
2013 concerning the [Equal Employment Opportunity] Policy of
Defendants.”

[Id.]

With respect to the second claim, Kerry

Marquez (“Marquez”) admitted to the inappropriate greeting and
“claimed that he was joking.”

[Id. at ¶ 18.]

terminated for inappropriate behavior.”

“Marquez was

[Id.]

Plaintiff did not provide any evidence to support his
claims of direct discrimination, and the undisputed facts show
that, once Plaintiff reported these allegations, Defendants
responded appropriately.

The Court FINDS that Plaintiff has not

provided direct evidence of discrimination under Title VII.
B.

Circumstantial Evidence
Plaintiff may also succeed on a Title VII

discrimination claim by providing circumstantial evidence of
discrimination under the McDonnell Douglas framework.

Plaintiff,

however, does not provide any facts or evidence that establish
any part of a disparate treatment claim.

The Court therefore

FINDS that Plaintiff has failed to establish a prima facie case
of discrimination under Title VII.

9

Even assuming Plaintiff could show a prima facie case
of discrimination, it is undisputed that Plaintiff was terminated
for cause.

See Defs.’ CSOF at ¶ 10 (“Plaintiff was terminated

for cause on April 5, 2013 based upon his behavior and
attendance.”).
alia:

The reasons for his termination include, inter

“aggressive and uncooperative” behavior, including

threatening co-workers; rejecting a concrete delivery, which
resulted in an unnecessary delay in construction; acting
aggressively toward a female co-worker; making “inappropriate and
harassing comments” to a female co-worker; urinating on the job
site; and showing up to work late and leaving early without
permission.

[Id. at ¶¶ 2-9.]

These facts prove that Defendants

had a legitimate, nondiscriminatory reason Plaintiff’s
termination.4
C.

Hostile Work Environment
Count I appears to include a claim for a hostile work

environment that “prevent[ed] [Plaintiff] from performing his
normal job responsibilities.”

[First Amended Complaint at ¶ 39.]

This district court has stated that, “[t]o prevail on a hostile
work environment claim under Title VII, a plaintiff must show

4

Defendants assert that, even after the Motion for
Sanctions was affirmed by the 6/20/16 Order, Plaintiff did not
produce any discovery or respond to interrogatories, and he is
therefore prohibited from using any of this information to
support his claims. [Mem in Supp. of Motion at 15; Defs.’ CSOF,
Decl. of Dennis E.W. O’Connor Jr. (“O’Connor Decl.”) at ¶ 7.]
10

that his or her ‘workplace was permeated with discriminatory
intimidation . . . that was sufficiently severe or pervasive to
alter the conditions of [his] employment and create an abusive
working environment.’”

Silverstein v. Carter, CIV. NO. 15-00097

SOM/KJM, 2016 WL 4256944, at *19 (D. Hawai`i Aug. 11, 2016)
(alterations in Silverstein) (quoting Brooks v. City of San
Mateo, 229 F.3d 917, 923 (9th Cir. 2000)).

Again, Plaintiff

fails to provide any evidence to support this claim.

The Court

FINDS that there is no question of material fact and CONCLUDES
that Defendants are entitled to judgment as a matter of law on
Count I.
III. Retaliation in Violation of Title VII – Count II
“To make out a prima facie retaliation claim under
Title VII, a plaintiff must show that ‘(1) the employee engaged
in a protected activity, (2) she suffered an adverse employment
action, and (3) there was a causal link between the protected
activity and the adverse employment action.’”

Jinadasa, 2016 WL

6645767, at *12 (quoting Davis v. Team Elec. Co., 520 F.3d 1080,
1093-94 (9th Cir. 2008)).

In addition, “[t]he causal link must

establish a ‘but for’ connection.”

Id. (quoting Univ. of Tex.

Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013)).
Plaintiff’s opposition contains no facts or evidence of
Defendants’ alleged retaliation, and Plaintiff therefore does not
establish a prima facie case of retaliation.

11

Moreover, the Court

has already concluded that Plaintiff was terminated for
legitimate, nondiscriminatory reasons.

The Court FINDS that

there is no question of material fact and CONCLUDES that
Defendants are entitled to judgment as a matter of law on
Count II.
IV.

Violation of 42 U.S.C. § 1985 – Count III
This Court has stated:
To state a cause of action under 42 U.S.C.
§ 1985(3),[5] a plaintiff must show: (1) a
conspiracy; (2) to deprive a person or class of
persons of equal protection or privileges and
immunities under the laws; (3) an act by one of
the conspirators in furtherance of the conspiracy;
and (4) personal injury, property damage or a
deprivation of any right or privilege of a citizen
of the United States. Gillespie v. Civiletti, 629
F.2d 637, 641 (9th Cir. 1980).
Because § 1985 derives from the Thirteenth
Amendment [of the United States Constitution], a
plaintiff must allege “invidiously discriminatory,
racial or class-based animus.” Caldeira v. Cty.
of Kauai, 866 F.2d 1175, 1182 (9th Cir. 1989);
Gillespie, 629 F.2d at 641.

Lagmay v. Nobriga, CIV. NO. 15-00463 LEK/KJM, 2016 WL 1367736, at
*3 (D. Hawai`i Apr. 5, 2016).

Defendants argue that “Plaintiff

was reprimanded while working on the . . . [P]roject for his
behavior and attendance and not because of his race or the

5

Although not specified in the First Amended Complaint, it
is clear to the Court that Plaintiff’s claim arises under
§ 1985(3). Section 1985(1) concerns preventing an officer from
performing his or her duties, and § 1985(2) concerns interfering
with court proceedings by “intimidating party, witness, or
juror.”
12

alleged reporting of construction deficiencies to the project
owner.”

[Mem. in Supp. of Motion at 21.]

Plaintiff provides no

evidence to support Count III, and the Court has already
determined that Plaintiff was terminated for legitimate,
nondiscriminatory reasons.

The Court FINDS that there is no

question of material fact and CONCLUDES that Defendants are
entitled to judgment as a matter of law on Count III.
V.

Haw. Rev. Stat. Chapter 378 - Count IV
Count IV alleges illegal discrimination and

retaliation, including a hostile work environment, in violation
of Haw. Rev. Stat. §§ 378-2 and 378-62.

The Court will address

each of these claims in turn.
A.

Haw. Rev. Stat. § 378-2
Plaintiff does not state the section of Haw. Rev. Stat.

§ 378-2 under which he brings his claim, but given that he states
that the claim is for discrimination and retaliation, it is clear
to the Court it is brought pursuant to §§ 378-2(a)(1) and (2).
The Hawai`i Supreme Court has held that “a federal court’s
interpretation of Title VII is not binding on this court’s
interpretation of civil rights laws adopted by the Hawai`i
legislature,” but “the McDonnell Douglas framework can be a
useful analytical tool.”

Furukawa v. Honolulu Zoological Soc.,

85 Hawai`i 7, 13, 936 P.2d 643, 649 (1997).

Moreover, the

Hawai`i Supreme Court has applied the McDonnell Douglas burden13

shifting framework to Haw. Rev. Stat. § 378-2 claims for
disparate treatment and retaliation.

See Schefke v. Reliable

Collection Agency, Ltd., 96 Hawai`i 408, 425-26, 32 P.3d 52, 6970 (2001).
This Court has already determined that Plaintiff failed
to provide direct evidence of discrimination to support his
Title VII claim, and that, using the McDonnell Douglas framework,
he also failed to provide circumstantial evidence of
discrimination.

Moreover, this Court also found that Plaintiff

failed to establish a prima facie case of retaliation under Title
VII.

Plaintiff’s opposition to the Motion does not mention Count

IV or counter any of Defendants’ arguments.

This Court therefore

FINDS that there is no question of material fact and CONCLUDES
that Defendants are entitled to judgment as a matter of law with
regard to Plaintiff’s Haw. Rev. Stat. § 378-2 claim.6

6

To the extent that Plaintiff brings a claim for a hostile
work environment under Haw. Rev. Stat. § 378-2, the standard is
somewhat different than a hostile work environment claim under
Title VII. “For purposes of a Hawaii law claim, the ‘analysis of
whether particular harassing conduct was severe and pervasive is
separate and distinct from the remaining requirements of a
plaintiff’s claim: it is the harasser’s conduct which must be
severe or pervasive, not its effect on the plaintiff or the work
environment.’” Aoyagi v. Straub Clinic & Hosp., Inc., 140 F.
Supp. 3d 1043, 1056 (D. Hawai`i 2015) (quoting Arquero v. Hilton
Hawaiian Village LLC, 104 Hawai`i 423, 91 P.3d 505, 512 (2004)).
Plaintiff provides no evidence or facts about when and how
Defendants created a hostile work environment. The Court
therefore FINDS that, to the extent that Plaintiff alleges a
state law hostile work environment claim, there is no question of
material fact and CONCLUDES that Defendants are entitled to
(continued...)
14

B.

Haw. Rev. Stat. § 378-62
Haw. Rev. Stat. § 378-62, also known as the Hawai`i

Whistleblower Protection Act (“HWPA”), “does not explicitly
define the elements of a claim,” but
three elements can be extrapolated from the
language of the statute, together with the Hawaii
Supreme Court’s interpretation of claims under
§ 378-62. See Crosby v. State Dept. of Budget &
Fin., 876 P.2d 1300, 1310 (Haw. 1994), cert.
denied, 513 U.S. 1081 (1995); see also Nelson v.
Nat’l Car Rental System, Inc., Civ. No. 05-00374
JMS-LEK, 2006 WL 1814341, at *3 (D. Haw. June 30,
2006). First, there must be a showing that the
employee “engaged in protected conduct” as it is
defined by the HWPA. Crosby, 876 P.2d at 1310.
Second, the employer is required to take some
adverse action against the employee. Id. Third,
there must be “a causal connection between the
alleged retaliation and the ‘whistleblowing.’”
Id. In other words, to meet the causal connection
requirement, “[the] employer’s challenged action
must have been taken ‘because’ the employee
engaged in protected conduct.” Id.
Turner v. Ass’n of Apartment Owners of Wailea Point Vill., CIV.
NO. 14-00306 BMK, 2016 WL 1298046, at *10 (D. Hawai`i Mar. 31,
2016).
The HWPA prohibits an employer from taking action
against an employee for reporting “to a public body” that the
employer violated “[a] law, rule, ordinance, or regulation,” or
“a contract executed by the State, a political subdivision of the
state, or the United States.”

Haw. Rev. Stat. § 378-62(1)(A)-

6

(...continued)
judgment as a matter of law.
15

(B).

The only alleged report that Plaintiff made before he was

terminated was to a representative of the Project’s owner about
discrepancies between the contract and the actual construction.
[First Amended Complaint at ¶ 7.]

Defendants argue that “[t]his

does not rise to the level of reporting an anticipated breach of
law [and] suffering an adverse employment action as a result of
reporting the same.”
agrees.

[Mem. in Supp. of Motion at 25.]

The Court

Further, Plaintiff provides no evidence or facts to

support his allegation.

The Court FINDS that there is no

question of material fact and CONCLUDES that Defendants are
entitled to judgment as a matter of law with regard to
Plaintiff’s Haw. Rev. Stat. § 378-62 claim.
VI.

Emotional Distress – Count V
Finally, Count V asserts a claim for IIED and/or NIED.

The Court will consider each of these in turn.
A.

IIED
Under Hawai`i law, a claim of IIED must show:
“(1) that the act allegedly causing the harm was
intentional or reckless, (2) that the act was
outrageous, and (3) that the act caused
(4) extreme emotional distress to another.” Hac
v. Univ. of Hawaii, 102 Haw. 92, 106, 73 P.3d 46,
60-61 (2003). “An act is unreasonable if it is
without just cause or excuse and beyond all bounds
of decency[.] In other words, the act complained
of must be outrageous.” See Takaki v. Allied
Mach. Corp., 87 Haw. 57, 66 n.13, 951 P.2d 507,
516 n.13 (1998). In explaining the type of
“outrageous” conduct that gives rise to a claim
for intentional infliction of emotional distress,
16

the Hawaii Supreme [C]ourt has noted:
It has not been enough that the
defendant has acted with an intent which
is tortious or even criminal, or that he
has intended to inflict emotional
distress, or even that his conduct has
been characterized by “malice,” or a
degree of aggravation which would
entitle the plaintiff to punitive
damages for another tort. Liability has
been found only where the conduct has
been so outrageous in character, and so
extreme in degree, as to go beyond all
bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a
civilized community. Generally, the
case is one in which the recitation of
the facts to an average member of the
community would arouse his resentment
against the actor, and lead him to
exclaim, “Outrageous!”
Dunlea v. Dappen, 83 Haw. 28, 38, 924 P.2d 196,
206 (1996).
Martin v. Ampco Sys. Parking, Civil No. 12-00598 SOM/RLP, 2013 WL
5781311, at *15-16 (D. Hawai`i Oct. 24, 2013) (some alterations
in Martin).7

Defendants argue that Plaintiff has not shown that

any of their behavior was outrageous.
at 28.]

[Mem. in Supp. of Motion

Plaintiff has not identified any conduct by Defendants

that is outrageous, and provides no facts or evidence to support
his claim for IIED.

The COURT therefore FINDS that there is no

question of material fact and CONCLUDES that Defendants are

7

The district court subsequently granted a motion for
reconsideration that is not relevant to the instant matter. See
Martin v. Ampco Sys. Parking, Civil No. 12-00598 SOM/RLP, 2013 WL
6624124 (D. Hawai`i Dec. 16, 2013).
17

entitled to judgment as a matter of law on Plaintiff’s IIED
claim.
B.

NIED
Under Hawai`i law, NIED requires:
“(1) that the defendant engaged in negligent
conduct; (2) that the plaintiff suffered serious
emotional distress; and (3) that such negligent
conduct of the defendant was a legal cause of the
serious emotional distress.” Caraang v. PNC
Mortg., 795 F. Supp. 2d 1098, 1122 (D. Haw. 2011).
Additionally, “[a] prerequisite to any negligence
action is the existence of a duty owed by the
defendant to the plaintiff, requiring the actor to
conform to a certain standard of conduct for the
protection of others against unreasonable risks.”
Lee v. Corregedore, 83 Hawai`i 154, 158-159 (1996)
(internal citation, quotation marks, and brackets
omitted).

Toguchi v. Matayoshi, Civil No. 13-00380 DKW-KSC, 2014 WL
7420003, at *10 (D. Hawai`i Dec. 31, 2014).

In addition, “this

district court has previously recognized that in Hawaii,
‘recovery for negligent infliction of emotional distress by one
not physically injured is generally permitted only when there is
some physical injury to property or [another] person resulting
from the defendant’s conduct.’”

Klingman v. Cty. of Maui, Civ.

No. 16-00399 ACK-RLP, 2016 WL 6996986, at *7 (D. Hawai`i Nov. 29,
2016) (alteration in Klingman) (quoting Soone v. Kyo-Ya Co., 353
F. Supp. 2d 1107, 1118 (D. Haw. 2005)) (some internal quotation
marks omitted).

Plaintiff does not provide any facts or evidence

to support his claim for NIED.

Moreover, neither the First

Amended Complaint nor any other filing contends that Defendants’
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actions caused physical injury to Plaintiff, property, or to
another person.

The Court FINDS that there is no question of

material fact and CONCLUDES that Defendants are entitled to
judgment as a matter of law on Plaintiff’s NIED claim.
CONCLUSION
On the basis of the foregoing, Defendants’ Motion for
Summary Judgment to Dismiss All of Plaintiff’s Claims, filed
August 10, 2016, is HEREBY GRANTED.

There being no remaining

claims, the Court DIRECTS the Clerk’s Office to enter judgment in
favor of Defendants and close this case on January 26, 2017,
unless Plaintiff files a motion for reconsideration of this Order
by January 23, 2017.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, January 4, 2017.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

CLINTON C. ST. CLASSIS BROWN, II VS. DCK WORLDWIDE LLC, ET AL;
CIVIL 14-00559 LEK-KJM; ORDER GRANTING DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT TO DISMISS ALL OF PLAINTIFF’S CLAIMS

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