Song v. KBOS, Inc. et al
Filing
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ORDER GRANTING DEFENDANTS' MOTION TO DISMISS re 7 , 25 - Signed by JUDGE ALAN C KAY on 8/31/2015. "Plaintiff's Complaint is DISMISSED WITHOUT PREJUDICE in its entirety. Plaintiff must file any amended c omplaint within thirty days of the entry of this Order." (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). 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
EUN HYE SONG,
Plaintiff,
v.
KBOS, INC., a Hawaii
corporation; MORNING STAR
CRUISES, INC., a Hawaii
corporation; JOHN DOES 1-10;
JANE DOES 1-10; DOE ENTITIES 110; DOE PARTNERSHIPS 1-10; DOE
LIMITED LIABILITY COMPANIES 110; DOE CORPORATIONS 1-10; and
DOE GOVERNMENTAL AGENCIES 1-10,
Defendants.
) Civ. No. 15-00094 ACK-RLP
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ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS
For the following reasons, the Court hereby
GRANTS Defendants’ Motion to Dismiss and DISMISSES WITHOUT
PREJUDICE Plaintiff’s Complaint in its entirety. Plaintiff must
file any amended complaint within thirty days of the entry of
this Order.
FACTUAL BACKGROUND1/
This case arises out of injuries Plaintiff Eun Hye Song
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.
alleges she suffered while on a “Banana Boat” ride during her
honeymoon in Oahu. (Compl. (Doc. No. 9-3).) Plaintiff is a
resident of the Republic of South Korea. (Id. ¶ 1.) Defendants
KBOS, Inc. and Morning Star are Hawaii corporations (together,
“Defendants”). (Id. ¶¶ 2-3.) Plaintiff alleges that Defendant
KBOS is the exclusive sales agent for Defendant Morning Star, and
that Morning Star is in the business of providing recreational
ocean activities such as parasailing, jetskiing, and Banana Boat
rides.2/ (Id. ¶¶ 4-5.)
On or around May 26, 2012, Plaintiff and her husband
participated in a Banana Boat ride offered by Defendants. (Compl.
¶¶ 6-8.) Plaintiff alleges that, prior to boarding the Banana
Boat, neither she nor her husband were given any safety
instructions regarding the Banana Boat. (Id. ¶ 11.) Plaintiff
further alleges that the two boat operator made “a too sharp turn
at high speed,” causing Plaintiff to be thrown from the Banana
Boat and injured. (Id. ¶ 12.) Plaintiff alleges that she suffered
a major fracture to her right leg “requiring surgical implanting
of screws to repair the fracture, multiple extended stays in the
hospital, and extensive rehabilitation.” (Id. ¶ 13.) This suit
followed.
2/
A “banana boat” is an inflatable device in the shape of a
banana made for two people to ride while it is towed behind a
motorized water vehicle. (Id. ¶ 9.)
2
PROCEDURAL BACKGROUND
On May 23, 2014, Plaintiff filed her Complaint in the
Circuit Court of the First Circuit, State of Hawaii, alleging
three claims against Defendants: (1) negligence, (2) strict
liability, and (3) breach of warranty. (Id. ¶¶ 14-28.) On March
23, 2015, Defendants removed the case to this district court.
(Doc. No. 1.)
Defendants filed the instant Motion to Dismiss on March
30, 2015. (Doc. No. 7.) Plaintiff filed her untimely memorandum
in opposition on August 13, 2015. (Doc. No. 22.) Defendants filed
their Reply on August 17, 2015.3/ (Doc. No. 24.)
A hearing on the motion was held on August 31, 2015.
STANDARD
Rule 12(b)(6) authorizes the Court to dismiss a
complaint that fails “to state a claim upon which relief can be
granted.” The Court may dismiss a complaint either because it
lacks a cognizable legal theory or because it lacks sufficient
factual allegations to support a cognizable legal theory.
Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir.
3/
In their Reply, Defendants ask the Court to strike
Plaintiff’s late-filed opposition. Defendants correctly point out
that Plaintiff filed her opposition three days late without even
purporting to offer any justification, and without seeking leave
of Court to do so. The Court will nevertheless consider the
opposition; however, the Court cautions Plaintiff that any
further violations of the Local Rules may result in sanctions,
including dismissal.
3
2011).
On a Rule 12(b)(6) motion to dismiss, the Court accepts
all well-pleaded factual allegations as true and construes them
in the light most favorable to the nonmoving party. Sateriale v.
R.J. Reynolds Tobacco Co., 697 F.3d 777, 783 (9th Cir. 2012)
(citation omitted). The Court may not dismiss a “complaint
containing allegations that, if proven, present a winning
case . . . no matter how unlikely such winning outcome may appear
to the district court.” Balderas v. Countrywide Bank, N.A., 664
F.3d 787, 791 (9th Cir. 2011).
Nonetheless, “conclusory allegations of law and
unwarranted inferences are insufficient to defeat a motion to
dismiss.” Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011)
(citations omitted). “[O]nly pleaded facts, as opposed to legal
conclusions, are entitled to assumption of the truth.” United
States v. Corinthian Colls., 655 F.3d 984, 991 (9th Cir. 2011)
(citation omitted). A “formulaic recitation of the elements of a
cause of action” will not defeat a motion to dismiss. Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations
and quotations omitted). The complaint must contain sufficient
factual matter, accepted as true, to “state a claim to relief
that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Twombly, 550 U.S. at 570). “The plausibility
standard . . . asks for more than a sheer possibility that a
4
defendant has acted unlawfully. 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.’” Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 556-57). Moreover, the Court need not accept as true
allegations that contradict the complaint’s exhibits, documents
incorporated by reference, or matters properly subject to
judicial notice. Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 550, 588
(9th Cir. 2008); Sprewell v. Golden State Warriors, 255 F.3d 979,
988 (9th Cir. 2001).
The Court should grant leave to amend “even if no
request to amend the pleading was made, unless it determines that
the pleading could not be cured by the allegation of other
facts.” OSU Student Alliance v. Ray, 699 F.3d 1053, 1079 (9th
Cir. 2012). Leave to amend “is properly denied, however, if
amendment would be futile.” Carrico v. City & County of S.F., 656
F.3d 1002, 1008 (9th Cir. 2011).
DISCUSSION
In the instant motion, Defendants seek dismissal of the
Complaint on two alternative grounds. First, Defendants assert
that they are entitled to dismissal pursuant to Federal Rule of
Civil Procedure 12(b)(5) because the Complaint was never properly
served upon them. Second, Defendants assert that, even if the
Complaint were properly served, it should nevertheless be
5
dismissed for failure to state a claim under Rule 12(b)(6). The
Court addresses each argument in turn.
I.
Dismissal Under Rule 12(b)(5)
First, Defendants assert that, because Plaintiff failed
to properly serve the Complaint upon them, they are entitled to
dismissal under Federal Rule of Civil Procedure 12(b)(5).4/ Under
Rule 12(b)(5), the Court is empowered to dismiss a case if
service of process is insufficient. The burden is on the party
claiming proper service to establish valid service. Taniguchi v.
Native Hawaiian office of Atty. Gen., Civ. No. 09-00117 SOM-KSC,
2009 WL 1404731, at *2 (D. Haw. May 15, 2009) (citing Cranford v.
United States, 359 F. Supp. 2d 981, 984 (E.D. Cal. 2005)). If the
service of process is found to be insufficient, the Court has
broad discretion to dismiss the action or to retain the case but
quash the service that has been made on the defendant. Id.
Generally, to determine whether service of process was
proper for purposes of Rule 12(b)(5), courts look to the
requirements of Rule 4 of the Federal Rules of Civil Procedure.
4/
Contrary to Plaintiff’s assertions in her memorandum in
opposition, Defendants’ removal of the instant case from state
court to federal court did not constitute a waiver of Defendants’
right to challenge the sufficiency of service. See, e.g., Barnard
v. Watson, Civ. No. 2:14-CV-0024-TOR, 2014 WL 2573238, at *1
(E.D. Wash. June 9, 2014) (citing Wabash W. Ry. v. Brow, 164 U.S.
271, 279 (1896) (holding that the removal of a case from state
court to federal court constitutes a special appearance and does
not waive the defendant’s right to contest service of process)).
6
Because, however, service of process was attempted in this case
prior to removal to federal court, the sufficiency of that
service must be assessed in accordance with Hawaii state law. See
Lee v. City of Beaumont, 12 F.3d 933, 937 (9th Cir. 1993) (“Rule
4(j) does not apply to service of process which was attempted
prior to removal; the sufficiency of service in this case is
determined according to state law because service of process
occurred before removal.”), overruled on other grounds by
California Dep’t of Water Res. v. Powerex Corp., 533 F.3d 1087
(9th Cir. 2008).
As is relevant here, under the Hawaii Rules of Civil
Procedure, a complaint must be served:
Upon a domestic or foreign corporation or upon a
partnership or other unincorporated association
which is subject to suit under a common name, by
delivering a copy of the summons and of the
complaint to an officer, a managing or general
agent, or to any other agent authorized by
appointment or by law to receive service of
process and, if the agent is one authorized by
statute to receive service and the statute so
requires, by also mailing a copy to the defendant.
Haw. R. Civ. P. 4(d)(3). A complaint may also be served upon a
domestic corporation such as Defendants “in the manner prescribed
by any statute.” Id. R. 4(d)(8).
Under Hawaii Revised Statutes § 414-64, service may be
issued against a corporation
in the manner provided by law upon any registered
agent, officer, or director of the corporation who
is found within the jurisdiction of the court ...;
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or if any registered agent, officer, or director
cannot be found, upon the manager or
superintendent of the corporation or any person
who is found in charge of the property, business,
or office of the corporation within the
jurisdiction.
Haw. Rev. Stat. § 414–64(a).
Here, Plaintiff filed her Complaint in state court on
May 23, 2014. (Doc. No. 9-3.) On March 3, 2015, Homer Kuroda, a
Civil Deputy Sheriff and private process server, attempted to
serve a copy of the Complaint and summons on Defendants. (Opp’n,
Kuroda Decl. ¶¶ 2-4.) Mr. Kuroda states in his declaration in
support of Plaintiff’s memorandum in opposition that he consulted
the Hawaii Department of Commerce and Consumer Affairs (“DCCA”)
and found that Paul Yip is the Chief Executive Officer,
President, and registered agent of both Defendants KBOS and
Morning Star, and that his listed address is 49-132 Kamehameha
Highway, Kaneohe, Hawaii. (Id. ¶ 5; Mot., Yip Decl. ¶¶ 1-2.)
Located at 49-132 Kamehameha Highway is the Coral Kingdom store.
(Opp’n, Kuroda Decl. ¶ 7.) Mr. Yip states in his declaration in
support of the instant Motion, however, that Coral Kingdom is a
separate business entity from KBOS and Morning Star. (Mot., Yip
Decl. ¶ 2.)
Mr. Kuroda and Mr. Yip provide somewhat different
accounts of what occurred on March 3, 2015 at the Coral Kingdom
store. According to Mr. Yip’s declaration, “a male individual”
entered the Coral Kingdom and asked whether Mr. Yip was present,
8
upon which the staff members informed the gentleman that Mr. Yip
“was not present and in a meeting away from the office.” (Id.
¶ 3.) Mr. Yip states that the man then left a copy of the
Complaint and summons on a table in the Coral Kingdom store and
walked off. (Id. ¶ 4.) Mr. Yip states that neither he nor any
other officer or agent designated to accept service on behalf of
Defendants accepted or acknowledged service of the Complaint and
summons. (Id. ¶ 5.)
Mr. Kuroda, on the other hand, states that he entered
the Coral Kingdom store on March 3, 2015, and asked a woman who
worked there where Paul Yip was. (Opp’n, Kuroda Decl. ¶ 8.) Mr.
Kuroda states that the woman told him that Mr. Yip was in his
office, upstairs, and directed Mr. Kuroda to a woman she said was
Mr. Yip’s wife. (Id. ¶ 9-11.) Mr. Kuroda states that he then
spoke with Mr. Yip’s wife, Keiko Yip, who, according to the DCCA
records, is the Vice President and director of KBOS and the Vice
President, Secretary, and director of Morning Star. (Opp’n, Ex.
1.) Mr. Kuroda states that Ms. Yip told him that Mr. Yip had an
office at the Coral Kingdom store, but was not in his office at
the time. (Opp’n, Kuroda Decl. ¶¶ 12-13, 16.) Mr. Kuroda further
states that Ms. Yip would not permit Mr. Kuroda to go upstairs to
the office to check for Mr. Yip, and refused to contact Mr. Yip
herself. (Id. ¶¶ 13-15.) Mr. Kuroda then attempted to hand Ms.
Yip the Complaint and summons; however, she refused to take the
9
documents, and Mr. Kuroda thereafter left them on “a nearby
counter” located “approximately one foot away” from Ms. Yip, and
advised Ms. Yip that he was serving the documents. (Id. ¶¶ 1820.)
Plaintiff offers as corroboration for Mr. Kuroda’s
account two Return and Acknowledgment of Service documents, which
purport to demonstrate that service was made upon KBOS and
Morning Star in a manner consistent with Mr. Kuroda’s statements.
(Doc. Nos. 9-6, 9-7.) The documents state that KBOS and Morning
Star, respectively, were served on March 3, 2015 at 1:00 p.m. at
49-132 Kamehameha Highway, Kaneohe, Hawaii 96744 via delivery of
the Complaint to “Keiko Yip, manager for Paul S.K. Yip,” who is
“the agent and authorized agent” of Defendants. (Id.) On both
documents, however, the signature line indicating an
acknowledgment of service by Ms. Yip is blank. (Id.) Generally,
“[a] signed return of service constitutes prima facie evidence of
valid service”; however, because the return of service documents
were not signed here, they are of little help to the Court in
assessing whether Defendants were properly served. See S.E.C. v.
Internet Solutions for Business Inc., 509 F.3d 1161, 1166 (9th
Cir. 2007).
Nevertheless, the Court concludes that Defendants were
properly served when Mr. Kuroda delivered the documents to Ms.
Yip. As discussed above, Plaintiff was required to deliver the
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Complaint and summons to “an officer, a managing or general
agent, or to any other agent authorized by appointment or by law
to receive service of process” on behalf of Defendants. See Haw.
R. Civ. P. 4(d)(3). Here, as discussed above, according to the
DCCA records, Ms. Yip is the Vice President and director of KBOS
and the Vice President, Secretary, and director of Morning Star.
(Opp’n, Ex. 1.) Thus, while she is not the designated agent for
either Defendant, she is clearly an officer of both corporations.
It therefore appears that, when Mr. Kuroda attempted to hand a
copy of the Complaint and summons to Ms. Yip, and subsequently
left them on a nearby counter when she refused to take possession
of them,5/ proper service was effectuated under Hawaii law.
5/
It appears that the fact that Ms. Yip did not actually
take possession of the papers is of no import. Where a defendant
attempts to avoid service by refusing to take the papers, it is
sufficient if the server is in close proximity to the defendant,
clearly communicates intent to serve court documents, and makes
reasonable efforts to leave the papers with the defendant. See
Errion v. Connell 236 F.2d 447, 457 (9th Cir. 1956) (service
sufficient when sheriff pitched the papers through a hole in
defendant’s screen door after she spoke with him and ducked
behind a door to avoid service); Doe v. Qi, 349 F. Supp. 2d 1258,
1275 (N.D. Cal. 2004) (service proper where the process server
apprised the defendant that service was being effectuated, but
the defendant turned his back and refused to take the papers);
Novak v. World Bank, 703 F.2d 1305, 1310 n. 14 (D.C. Cir. 1983)
(“When a person refuses to accept service, service may be
effected by leaving the papers at a location, such as on a table
or on the floor, near that person.”); see also 4A Charles A.
Wright & Arthur R. Miller, Federal Practice & Procedure § 1095
(3d ed.). Here, Mr. Kuroda states that he clearly informed Ms.
Yip that he was serving the documents and left them on a counter
approximately a foot away from where she was standing. (Opp’n,
Kuroda Decl. ¶¶ 20-21.) The Court is therefore satisfied that
(continued...)
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While Mr. Yip’s account of the events at the Coral
Kingdom on March 3, 2015 lacks many of the details from that of
Mr. Kuroda, he does not appear to dispute Mr. Kuroda’s assertion
that he spoke with and attempted to serve Ms. Yip. Specifically,
in Mr. Yip’s declaration in support of Defendants’ Reply, he does
not contradict Mr. Kuroda’s assertion that Ms. Yip was present at
the Coral Kingdom store on March 3, 2015, or that Mr. Kuroda
spoke with her. Indeed, Mr. Yip states that “Mrs. Yip and Coral
Kingdom employees” informed Mr. Yip that a man had come to the
store looking for Mr. Yip and had left a copy of the Complaint
and summons there. (Reply, Yip Decl. ¶ 3.) Mr. Yip therefore does
not appear to contest that Mr. Kuroda interacted with Ms. Yip and
attempted to serve the papers upon her. Rather, Mr. Yip insists
that the Coral Kingdom is a separate business from Morning Star
and KBOS and, thus, service was improper. (Id.) Because, however,
Ms. Yip is an officer of both Morning Star and KBOS, Mr. Kuroda’s
service upon her was sufficient under Hawaii law, regardless of
where in Hawaii that service took place. See Haw. R. Civ. P.
4(d)(3); Haw. Rev. Stat. § 414–64(a).
Because Mr. Kuroda’s account of his attempted service
upon Ms. Yip appears to be undisputed, and because service upon
Ms. Yip is sufficient under Hawaii law, the Court concludes that
5/
(...continued)
service upon Ms. Yip was, in fact, sufficient, notwithstanding
her refusal to take possession of the papers.
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Plaintiff has met her burden of demonstrating adequate service of
process here.6/ The Court therefore DENIES Defendants’ Motion to
the extent they seek dismissal pursuant to Federal Rule of Civil
Procedure 12(b)(5).
II.
Dismissal Under Rule 12(b)(6)
Defendants argue alternatively that, even if the Court
finds the Complaint was properly served, it must nevertheless
fail under Rule 12(b)(6). As discussed above, to survive a Rule
12(b)(6) motion to dismiss, a complaint need not contain detailed
factual allegations, but must at least “provide the ‘grounds’ of
[the plaintiff’s] ‘entitlement to relief.’” Twombly, 550 U.S. at
555 (internal citation and alteration omitted). The Supreme Court
has stated that this “requires more than labels and conclusions,
and a formulaic recitations of the elements of a cause of action
will not do.” Id. A complaint must therefore do more than “merely
create[] a suspicion of a legally cognizable right of action”;
rather, “[f]actual allegations must be enough to raise a right to
relief above the speculative level.” Id. (citations and
alterations omitted). Here, even accepting the allegations of the
Complaint as true and construing them in the light most favorable
to Plaintiff, the Court concludes that the Complaint fails to
6/
Because the Court concludes that
service of process was sufficient under
address Plaintiff’s arguments regarding
service on July 17, 2015 and at a later
at 16-18.)
13
the March 3, 2015
Hawaii law, it need not
subsequent attempts at
date via mail. (See Opp’n
meet this standard.
As an initial matter, it is unclear from the face of
the Complaint whether Plaintiff is bringing her claims under
Hawaii state law or Federal maritime law. Plaintiff states in the
Complaint that her injuries “occurred as a passenger upon a
marine time [sic] vessel as defined under 46 U.S.C. Section 115.”
(Compl. ¶ 14.) That provision simply defines the term “vessel” as
it is used under Title 46 of the U.S. Code, the Federal maritime
statutes. It does not, however, set forth any causes of action,
and Plaintiff’s reference to it does little to clarify her theory
of liability for each of her three causes of action.
With respect to Plaintiff’s strict liability and breach
of warranty claims, she makes some allegations suggesting that
they are brought pursuant to maritime law (see, e.g., Compl. ¶ 21
(alleging that Defendants “were engaged in the business of
providing ocean activities”); ¶ 26 (alleging that Defendants
“warranted to Plaintiff that their vessels, and their equipment
were seaworthy and reasonably fit for their intended use”));
however, she makes other allegations that appear to sound in
state tort law (see, e.g., Compl. ¶ 22 (alleging that the Banana
Boat “failed to meet the consumer expectations of safety and was
unreasonably dangerous and in a defective condition as to design
and marketing” and that Defendants “failed to warn or give
adequate warning calculated to reach the ultimate users or
14
consumers of the dangers of the use of the Banana Boat”); ¶ 27
(alleging that Defendants “failed to provide and/or operate their
vessel in a safe manner, which was unreasonably dangerous and
harmful to Plaintiff and was therefore defective”)). Thus, at
times it appears that Plaintiff is bringing claims for strict
liability and breach of the warranty of seaworthiness under
maritime law, while at other times it appears she is bringing
claims for breach of warranty and strict liability in the context
of state products liability law. Given the juxtaposition of these
allegations, and the lack of any specific factual assertions that
meaningfully identify the bases of Plaintiff’s claims, it is
impossible to determine from the face of the Complaint whether
Plaintiff is bringing her strict liability and breach of warranty
claims pursuant to state law or Federal maritime law.
As to her negligence claim, Plaintiff does state that
Defendants “are legally responsible for their negligence in
causing Plaintiff’s [sic] Song’s injuries under 46 U.S.C. et.
seq.” (Compl. ¶ 19.) Even assuming Plaintiff’s negligence claim
does, in fact, sound in maritime law, however, absent more
specific allegations, the Court cannot discern the legal basis of
the claim. Title 46 contains eight subtitles, each with numerous
chapters and hundreds of sections. Plaintiff’s vague citation to
the entire Federal maritime statutory scheme, absent more, is
simply insufficient to give Defendants fair notice of the claims
15
against them and the grounds upon which the Complaint stands. See
Twombly, 560 U.S. at 555 (holding that a pleader must give the
defendant “fair notice” of the grounds upon which a claim rests);
Lopez v. Coca-Cola, Civ. No. 1:13-CV-01217-LJO, 2013 WL 5532160,
at *1 (E.D. Cal. Oct. 7, 2013) (dismissing a complaint where the
court was “unable to determine if [the plaintiff’s claim was]
based upon state or federal law”). This is particularly true in
light of the extremely limited factual details Plaintiff includes
in the Complaint to support her negligence claim.
Moreover, even were the Court able to determine whether
Plaintiff’s claims are brought pursuant to Hawaii state law or
maritime law, the Complaint would still fail under Rule 12(b)(6),
as it sets forth only bare and conclusory allegations of
wrongdoing. Specifically, with respect to the negligence claim,
Plaintiff alleges that she received no safety instructions prior
to boarding the Banana Boat, and that the boat operator “made a
too sharp turn at high speed,” and that Defendants “failed to
protect Plaintiff . . . and were negligent”; however, she makes
no allegation that either Defendant owed her a duty, and she
entirely fails to specify what, if any, conduct, each Defendant
undertook. (See Compl. ¶¶ 10, 12-19.) Indeed, the Complaint does
not even contain any allegations regarding which Defendant
actually owned or operated the Banana Boat vessel upon which she
rode when she was allegedly injured. (See generally id.)
16
Further, with respect to her remaining claims for
relief, Plaintiff has likewise failed to provide sufficient
factual allegations to plausibly state a claim for strict
liability or breach of warranty. As noted above, it is unclear
whether Plaintiff is bringing these claims under Federal maritime
law or Hawaii state law. Moreover, even assuming, for example,
Plaintiff’s strict liability claim were brought pursuant to
maritime law, Plaintiff has failed to allege even the basic
elements of such a claim. Specifically, Plaintiff does not allege
that either Defendant was the seller or manufacturer of the
allegedly defective Banana Boat ride, as required for a strict
liability claim in admiralty. See Saratoga Fishing Co. v. Marco
Seattle Inc., et al., 69 F.3d 1432, 1437-38 (9th Cir. 1995)
(setting forth the elements of a strict products liability claim
in admiralty), rev’d sub nom. on other grounds Saratoga Fishing
Co. v. J.M. Martinac & Co., 520 U.S. 875 (1997).
Assuming, on the other hand, that Plaintiff’s strict
liability claim sounds in Hawaii state common law, she has
likewise failed to allege the elements of such a claim, as the
Complaint contains no assertion as to what the alleged defect in
the Banana Boat product was that allegedly caused her harm. See
Acoba v. General Tire, Inc., 986 P.2d 288, 303-04 (Haw. 1999)
(stating that a strict products liability claim requires the
plaintiff to show “(1) a defect in the product which rendered it
17
unreasonably dangerous for its intended or reasonably foreseeable
use; and (2) a causal connection between the defect and the
plaintiff’s injuries” (alteration omitted)). Plaintiff makes the
bare assertion that the Banana Boat “was unreasonably dangerous
and in a defective condition” without any additional factual
allegations. Such a “formulaic recitation of the elements of a
cause of action” is simply insufficient to defeat a motion to
dismiss. See Twombly, 550 U.S. at 555.
Similarly, Plaintiff’s breach of warranty claim is
altogether insufficient to give Defendants adequate notice of the
claims against them. As noted above, it is entirely unclear from
the face of the Complaint whether Plaintiff is bringing a claim
for breach of the warranty of seaworthiness (under maritime law),
or breach of warranty in the state law products liability
context. The Complaint contains only bare allegations that amount
to legal conclusions, and falls far short of providing
“sufficient factual matter to state a claim to relief that is
plausible on its face.” Id. at 570 (citations and internal
quotation marks omitted).
While the Court acknowledges that Plaintiff’s Complaint
need not contain “detailed factual allegations” to survive a
12(b)(6) motion, Plaintiff’s “obligation to provide the ‘grounds’
of [her] ‘entitlement to relief’ requires more than labels and
conclusions and a formulaic recitation of the elements of a cause
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of action.” Id. at 555. Here, as discussed above, Plaintiff has
failed to sufficiently allege the grounds for her entitlement to
relief with respect to all three causes of action brought in the
Complaint. The Court therefore GRANTS Defendants’ Motion insofar
as it seeks dismissal pursuant to Federal Rule of Civil Procedure
12(b)(6).
III. Leave to Amend
As noted above, the Court should grant leave to amend
“even if no request to amend the pleading was made, unless it
determines that the pleading could not be cured by the allegation
of other facts.” Ray, 699 F.3d at 1079. Leave to amend “is
properly denied, however, if amendment would be futile.” Carrico,
656 F.3d at 1008. Here, Plaintiff has not sought the Court’s
leave to file an amended complaint in the event of dismissal;
however, because the Court cannot conclude at this time that any
such amendment would be futile, the Court will grant Plaintiff
leave to amend.
CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants’
Motion to Dismiss. Plaintiff’s Complaint is DISMISSED WITHOUT
PREJUDICE in its entirety. Plaintiff must file any amended
complaint within thirty days of the entry of this Order. Any
amended complaint must correct all the deficiencies noted in this
Order or Plaintiff’s claims will be dismissed with prejudice.
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IT IS SO ORDERED.
DATED:
Honolulu, Hawaii, August 31, 2015
________________________________
Alan C. Kay
Senior United States District Judge
Song v. KBOS, Inc. et al., Civ. No. 15-00094 ACK RLP, Order Granting
Defendants’ Motion to Dismiss.
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