Bosworth v. Foss Maritime et al
ORDER DENYING MOTION FOR RECONSIDERATION OF ORDER DENYING PLAINTIFF'S OBJECTIONS DATED 10-31-16 re 94 Motion for Reconsideration. Signed by JUDGE LESLIE E. KOBAYASHI on 02/28/2017. (eps, )CERTIFICATE OF SER VICEParticipants 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 served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
CIVIL 15-00285 LEK-BMK
LARRY NEAL BOSWORTH,
FOSS MARITIME, INLAND
BOATMAN’S UNION, RODNEY ALLEN )
MYERS, WHITNEY (WHIT) OLSON, )
ORDER DENYING MOTION FOR RECONSIDERATION OF
ORDER DENYING PLAINTIFF’S OBJECTIONS DATED 10-31-16
On October 31, 2016, this Court issued its Order
Denying Plaintiff’s Objections and Affirming the Magistrate
Judge’s Findings and Recommendation to Deny Plaintiff
Larry Bosworth’s Motion for Leave to File a Second Amended
Complaint (“10/31/16 Order”).
[Dkt. no. 93.]
On November 17,
2016, pro se Plaintiff Larry Bosworth (“Plaintiff”) filed a
motion that primarily seeks reconsideration of the 10/31/16 Order
(“Motion for Reconsideration”).
[Dkt. no. 94.]
On December 5,
2016, Defendants Foss Maritime Company (“Foss”), Rodney Allen
Myers, and Whitney Olson (collectively, “Foss Defendants”) filed
their memorandum in opposition, and Defendant Inlandboatmen’s
Union of the Pacific (“IBU”) filed its memorandum in opposition.
[Dkt. nos. 98, 99.]
Plaintiff filed his reply on December 22,
[Dkt. no. 100.]
The Court has considered the Motion for
Reconsideration as a non-hearing matter pursuant to Rule LR7.2(e)
of the Local Rules of Practice of the United States District
Court for the District of Hawai`i (“Local Rules”).
consideration of the motion, supporting and opposing memoranda,
and the relevant legal authority, Plaintiff’s Motion for
Reconsideration is HEREBY DENIED for the reasons set forth below.
The relevant background is set forth in the 10/31/16
Order, and this Court only repeats the events that are relevant
to the Motion for Reconsideration.
On April 29, 2016, Plaintiff filed a document titled
“Motion for Leave to File a Second Amended Complaint.”
The magistrate judge liberally construed the document as
both a motion seeking leave to amend (“Motion for Leave”) and a
proposed Second Amended Complaint (“Proposed Complaint”).
[Findings and Recommendation to Deny Plaintiff Larry Bosworth’s
Motion for Leave to File a Second Amended Complaint (“F&R”),
filed 7/29/16 (dkt. no. 78), at 5.]
The magistrate judge
construed the Proposed Complaint as alleging the following
claims: 1) a § 301 hybrid claim against Foss and IBU, pursuant to
29 U.S.C. § 185; 2) a wrongful termination claim against Foss,
alleging a violation of Haw. Rev. Stat. § 378-32; 3) a breach of
contract claim against Foss; 4) a fraud claim against Foss; 5) a
claim that Myers and Olson willfully contributed to his wrongful
termination; and 6) claims alleging the infliction of emotional
The magistrate judge noted that it was unclear whether
Plaintiff was alleging claims under Hawai`i law for intentional
infliction of emotional distress (“IIED”) and negligent
infliction of emotional distress (“NIED”) claims or a claim for
emotional distress under the Jones Act, 46 U.S.C. § 30104, et
[Id. at 7-8.]
Plaintiff filed objections to the F&R (“Objections”) on
August 29, 2016.
[Dkt. no. 82.]
In ruling on Plaintiff’s
Objections in the 10/31/16 Order, this Court: adopted the
magistrate judge’s conclusion that Plaintiff’s hybrid § 301 claim
in the Proposed Complaint was futile; adopted the magistrate
judge’s conclusion that Plaintiff’s § 378-32 claim was futile;
rejected Plaintiff’s argument that he should be allowed to pursue
a wrongful termination claim under either the Jones Act or
general federal maritime law; adopted the magistrate judge’s
conclusion that Plaintiff’s claims based on his psychological
injury – under Hawai`i law and under the Jones Act – were futile;
and affirmed the magistrate judge’s conclusion that Plaintiff’s
claim alleging “[w]rongful termination by way of fraud” was
The 10/31/16 Order also pointed out that the magistrate
judge concluded that the Proposed Complaint did not allege an age
46 U.S.C. § 30104 states: “A seaman injured in the course
of employment . . . may elect to bring a civil action at law,
with the right of trial by jury, against the employer.”
discrimination claim under the Age Discrimination in Employment
Act (“ADEA”), 29 U.S.C. § 621, et seq., and Plaintiff did not
raise an issue regarding the ADEA in his Objections.
therefore made no findings or conclusions about whether the
Proposed Complaint included an ADEA claim and, if so, whether the
claim was futile.
This Court concluded that the Objections did not raise
any grounds that warranted rejection of the magistrate judge’s
F&R and adopted the F&R in its entirety.
In the Motion for Reconsideration, Plaintiff asks this
Court to reconsider: the 10/31/16 Order “under a De Novo
standard”; and the denial of his earlier request for the
appointment of counsel.2
[Motion for Reconsideration at 1.3]
Plaintiff argues that the request should not have been denied on
the ground that his claims lack merit because his claims do have
On December 9, 2015, Plaintiff filed his Request for
Appointment of Counsel under the Civil Rights Act of 1964. [Dkt.
no. 38.] The magistrate judge issued an order denying the
request on December 16, 2015, and Plaintiff filed an appeal of
the order on December 23, 2015. [Dkt. no. 39, 40.] On
February 16, 2016, this Court denied the appeal and affirmed the
magistrate judge’s order. [Dkt. no. 47.]
Plaintiff’s Motion for Reconsideration does not have page
numbers. The page numbers in the citations to the Motion for
Reconsideration refer to the page numbers assigned to the
document in the district court’s electronic case filing system.
As to the 10/31/16 Order, Plaintiff argues: this is a
Jones Act case; he has a well documented injury that constitutes
the severe emotional injury necessary to support a claim for
intentional infliction of emotional distress pursuant to the
Jones Act; this Court failed to consider evidence favorable to
Plaintiff’s claims, including a letter by Mike Clawson and
evidence showing that Foss fabricated the allegations that he was
not a competent tug operator; and his fraud claim was not limited
to statements made during his call to the employee hotline.
Plaintiff also argues a violation of “U.S. CODE 45,352 Section
905(a)” and that Foss has wrongfully denied him temporary
disability insurance benefits.
[Motion for Reconsideration at 5-
Applicable Standard of Review
This Court has previously stated that a motion for
“must accomplish two goals. First, a motion for
reconsideration must demonstrate reasons why the
court should reconsider its prior decision.
Second, a motion for reconsideration must set
forth facts or law of a strongly convincing nature
to induce the court to reverse its prior
decision.” See Davis v. Abercrombie, Civil No.
11-00144 LEK-BMK, 2014 WL 2468348, at *2 (D.
Hawaii June 2, 2014) (citation and internal
quotation marks omitted). This district court
recognizes three circumstances where it is proper
to grant reconsideration of an order: “(1) when
there has been an intervening change of
controlling law; (2) new evidence has come to
light; or (3) when necessary to correct a clear
error or prevent manifest injustice.” Tierney v.
Alo, Civ. No. 12-00059 SOM/KSC, 2013 WL 1858585,
at *1 (D. Hawaii May 1, 2013) (citing School
District No. 1J v. ACandS, Inc., 5 F.3d 1255, 1262
(9th Cir. 1993)). “Mere disagreement with a
previous order is an insufficient basis for
reconsideration.” Davis, 2014 WL 2468348, at *3
n.4 (citations and internal quotation marks
Riley v. Nat’l Ass’n of Marine Surveyors, Inc., Civil No. 1400135 LEK-RLP, 2014 WL 4794003, at *1 (D. Hawai`i Sept. 25,
Thus, although the 10/31/16 Order applied a de novo
standard to the magistrate judge’s F&R, [10/31/16 Order at 7-8
(describing standards applicable to a party’s objections to a
magistrate judge’s findings and recommendations),] the de novo
standard does not apply to this Court’s review of Plaintiff’s
Motion for Reconsideration.
To the extent that Plaintiff argues
that this Court should review its 10/31/16 Order – or any other
order in this case – under a de novo standard, Plaintiff’s Motion
for Reconsideration is DENIED.
Scope of the 10/31/16 Order
The magistrate judge concluded that all of the claims
in Plaintiff’s Proposed Complaint were futile, and this Court
adopted those conclusions.
As the magistrate judge stated:
A district court may deny leave to amend “where
the amendment would be futile . . . or where the
amended complaint would be subject to dismissal.”
Saul v. United States, 928 F.2d 829, 843 (9th Cir.
“A proposed amendment is futile only if no
set of facts can be proved under the amendment to
the pleadings that would constitute a valid and
sufficient claim or defense.” Miller v.
Rykoff–Sexton, Inc., 845 F.2d 209, 214 (9th Cir.
1988). “When a court denies leave to amend on the
ground of futility, it means that the court has
reached the legal conclusion that the amended
complaint could not withstand a [Fed. R. Civ. P.]
12(b)(6) motion.” Illinois Nat. Ins. Co. v.
Nordic PLC Const., Inc., No. CIV. 11-00515 SOM,
2013 WL 1337007, at *5 (D. Haw. Mar. 28, 2013)
(citing Miller, 845 F.2d at 214).
[F&R at 5-6 (some alterations in the F&R).]
Only a complaint that “states a plausible
claim for relief” survives a Rule 12(b)(6) motion
to dismiss. Evans v. Massachusetts Nurses’ Ass’n,
No. CIV. 13-00272 SOM, 2013 WL 3731104, at *1 (D.
Haw. July 12, 2013). “To state a plausible claim,
the complaint must, at a minimum, plead factual
content that allows the court to draw the
reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (internal
brackets and internal quotation marks omitted)
(citation omitted). . . .
[Id. at 12.]
When reviewing a Rule 12(b)(6) motion, this Court
assumes that all of the factual allegations in the complaint are
true, although it is “‘not bound to accept as true a legal
conclusion couched as a factual allegation.’”
See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929
Thus, in determining whether Plaintiff’s claims in the
Proposed Complaint were futile, the magistrate judge and this
Court assumed that the factual allegations in the Proposed
Complaint were true and concluded that, even with that
assumption, Plaintiff still failed to allege plausible claims for
Based on that standard, this Court was not required to
consider the evidence – such as correspondence and other exhibits
– which Plaintiff contends support his position.
To the extent
that the Motion for Reconsideration alleges that this Court
should have considered evidence in support of his claims,
Plaintiff’s Motion for Reconsideration is DENIED.
III. Arguments Previously Raised
Plaintiff’s Jones Act arguments, emotional injury
arguments, and arguments about his fraud claim essentially repeat
arguments that he raised in connection with the Motion for Leave
and the Objections.
This Court understands that the events
giving rise to this case were, and continue to be, traumatic for
Plaintiff, and that he is disappointed with the outcome of this
However, Plaintiff’s disagreement with this Court’s
rulings is not a sufficient ground for reconsideration of the
See Davis, 2014 WL 2468348, at *3 n.4.
this Court cannot grant reconsideration “based on evidence and
legal arguments that a movant could have presented at the time of
the challenged decision.”
Wereb v. Maui Cty., 830 F. Supp. 2d
1026, 1031 (D. Hawai`i 2011) (some citations omitted) (citing
Kona Enter., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th
This Court therefore CONCLUDES that the Motion for
Reconsideration’s Jones Act arguments, emotional injury
arguments, and fraud arguments do not present any grounds that
warrant reconsideration of the 10/31/16 Order.
In the Motion for Reconsideration, Plaintiff states:
I would like to point out that U.S. CODE 45,352
[sic] Section 905(a) states
“Where an employer fails to secure compensation
and medical care, or takes action “with the intent
to avoid the payment of compensation” the
corporation can be charged with a crime. The
President, Secretary and Treasurer of the
corporation may be imprisoned for a period of up
to one year ........”
[Motion for Reconsideration at 5 (some alterations in original).]
He also states, “[i]n my opinion it is Skip Volkle that is liable
for the communicative unlawful treatment that violates U.S. COAD
[sic] 45,352 Section 905.”
Plaintiff may be referring to
33 U.S.C. § 938, which addresses criminal penalties regarding
Longshore and Harbor Workers’ Compensation.
This Court CONCLUDES
that Plaintiff’s arguments regarding Skip Volkle’s alleged
criminal liability are not relevant to any of the claims in
Plaintiff’s Proposed Complaint and do not constitute sufficient
grounds to warrant reconsideration of the 10/31/16 Order.
Similarly, Plaintiff’s allegations regarding the denial
of temporary disability insurance benefits are not relevant to
the claims in the Proposed Complaint and do not constitute a
sufficient ground to warrant reconsideration of the 10/31/16
This Court CONCLUDES that Plaintiff has not presented
any grounds that warrant reconsideration of the 10/31/16 Order.
Plaintiff’s Motion for Reconsideration is therefore DENIED as to
his request for reconsideration of the 10/31/16 Order.
there are no remaining claims in this case, Plaintiff’s request
for reconsideration of the denial of his request for the
appointment of counsel is also DENIED AS MOOT.
On the basis of the foregoing, Plaintiff’s Motion for
Reconsideration of Order Denying Plaintiff’s Objections Dated 1031-16, filed November 17, 2016, is HEREBY DENIED.
There being no
remaining claims in this case, this Court DIRECTS the Clerk’s
Office to enter final judgment and close the case immediately,
pursuant to this Court’s March 21, 2016 order and October 31,
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, February 28, 2017.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
LARRY NEAL BOSWORTH VS. FOSS MARITIME, ET AL; CIVIL 15-00285 LEKKJM; ORDER DENYING MOTION FOR RECONSIDERATION OF ORDER DENYING
PLAINTIFF’S OBJECTIONS DATED 10-31-16
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