Bosworth v. Foss Maritime et al

Filing 53

ORDER: GRANTING IN PART AND DENYING IN PART DEFENDANTS FOSS MARITIME COMPANY, RODNEY ALLEN MYERS, AND WHITNEY OLSON'S MOTION TO DISMISS PLAINTIFF'S OPERATIVE PLEADING; AND GRANTING IN PART AND DENYING IN PART DEFENDANT INLANDBOATMEN'S UNION OF THE PACIFIC'S MOTION TO DISMISS PLAINTIFF LARRY NEAL BOSWORTH'S OPERATIVE PLEADING re 36 re 31 . Signed by JUDGE LESLIE E. KOBAYASHI on 03/21/2016. -- This Court ORDERS Plaintiff to fi le his motion for leave to file a second amended complaint by April 29, 2016. The motion will be referred to the magistrate judge. -- This Court CAUTIONS Plaintiff that his second amended complaint must state all of the claims that he is making and it must contain all of the facts, all of the legal theories, and all of the exhibits that his claims rely upon. Plaintiff cannot rely upon or incorporate by reference any portion of any of his prior pleadings in this case . This Court will not consider Plaintiff's second amended complaint collectively with his prior pleadings in this case. -- This Court also CAUTIONS Plaintiff that, if he fails to file his motion for leave to file a s econd amended complaint by April 29, 2016, all of the claims that this Court dismissed without prejudice in this Order will be dismissed with prejudice, and this Court will direct the Clerk's Office to issue the final judgment and close the case . (eps)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
LARRY NEAL BOSWORTH,

)
)
Plaintiff,
)
)
vs.
)
)
FOSS MARITIME, INLAND
)
BOATMAN’S UNION, RODNEY ALLEN )
MYERS, WHITNEY (WHIT) OLSON, )
)
)
Defendants.
_____________________________ )

CIVIL 15-00285 LEK-BMK

ORDER: GRANTING IN PART AND DENYING IN PART DEFENDANTS
FOSS MARITIME COMPANY, RODNEY ALLEN MYERS, AND WHITNEY OLSON’S
MOTION TO DISMISS PLAINTIFF’S OPERATIVE PLEADING; AND
GRANTING IN PART AND DENYING IN PART DEFENDANT
INLANDBOATMEN’S UNION OF THE PACIFIC’S MOTION TO DISMISS
PLAINTIFF LARRY NEAL BOSWORTH’S OPERATIVE PLEADING
Before the Court are: Defendants Foss Maritime Company
(“Foss”), Rodney Allen Myers (“Myers”), and Whitney Olson’s
(“Olson,” all collectively “Foss Defendants”) Motion to Dismiss
Plaintiff’s Operative Pleading (“Foss Motion”), filed on
October 23, 2015; and a similar motion filed by Defendant
Inlandboatmen’s Union of the Pacific (“IBU” and “IBU Motion”) on
October 30, 2015.

[Dkt. nos. 31, 36.]

On March 16, 2016, pro se

Plaintiff Larry Neal Bosworth (“Plaintiff”) filed a memorandum in
opposition to both motions.

[Dkt. no. 51.]

The Court finds

these matters suitable for disposition without a hearing pursuant
to Rule LR7.2(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 motions, supporting

and opposing memoranda, and the relevant legal authority, the
Foss Motion and the IBU Motion are HEREBY GRANTED IN PART AND
DENIED IN PART for the reasons set forth below.
In short, Plaintiff has not filed a short and plain
statement of his claims showing that he is entitled to relief.
Plaintiff must state facts that he claims support his lawsuit,
and he must do so in numbered paragraphs.

As explained more

fully in this Order, Plaintiff’s claims are DISMISSED WITHOUT
PREJUDICE.

This means Plaintiff may file for permission to file

a second amended complaint by April 29, 2016.

However, Plaintiff

must state all of the claims that he is making and all

of the

facts, legal theories, and exhibits that his claims rely upon.
This is because the law requires Plaintiff to give fair notice to
Defendants so that they can understand for what and why Plaintiff
is suing them.
BACKGROUND
On July 28, 2015, Plaintiff filed a document that has
been construed as his complaint in the instant case (“7/28/15
Complaint”).

[Dkt. no. 1.]

On July 31, 2015, he filed a

document titled “Amend Complaint” (“7/31/15 Filing”).
6.]

[Dkt. no.

On August 12, 2015, he filed a “Notice of Correction”

(“8/12/15 Filing”), stating that he intend the 7/31/15 Filing to
supplement – not replace – the 7/28/15 Complaint.
2

[Dkt. no. 9.]

On September 14, 2015, Plaintiff filed a document that was titled
both “Request to add amendment” and “2ND Amendment to Civil
complaint” (“9/14/15 Filing”).

[Dkt. no. 9.]

The 9/14/15 Filing

stated that Plaintiff wished to clarify the actions that form the
basis of the case and what relief he seeks against which
defendant.
On October 2, 2015, the magistrate judge issued an
entering order (“10/2/15 EO”) construing the 9/14/15 Filing as a
request for leave to file an amended complaint.

[Dkt. no. 18.]

The magistrate judge granted the request and cautioned Plaintiff
that he “must include all of the allegations that Plaintiff’s
claims are based upon, even if he previously presented these
allegations in prior versions of the complaint”; and he “cannot
incorporate any part of the prior versions of the complaint into
this Amended Complaint by merely referencing earlier documents.”
[10/2/15 EO.]

Plaintiff filed a document titled “Amended

Complaint” on October 15, 2015 (“10/15/15 Complaint”).
25.]

[Dkt. no.

The 10/15/15 Complaint consists of a two-part, single-

spaced narrative that is seven pages long, followed by multiple
supporting documents, i.e., exhibits.
The Foss Motion argues that Plaintiff’s operative
pleading consists, collectively, of the 7/28/15 Complaint, the
7/31/15 Filing, the 8/12/15 Filing, the 9/14/15 Filing, and the
10/15/15 Complaint.

The Foss Defendants ask this Court to

3

dismiss Plaintiff’s operative pleading without prejudice because
it is so incomprehensible that the parties and the Court do not
have fair notice of what Plaintiff’s claims are or what alleged
facts the claims are based upon.

The Foss Defendants argue that

this Court can dismiss Plaintiff’s operative pleading pursuant to
Fed. R. Civ. P. 8(a)(2) and/or Fed. R. Civ. P. 12.
The IBU Motion asks this Court to dismiss Plaintiff’s
claims against IBU in the 10/15/15 Complaint pursuant to Rule 8
and/or Rule 12(b)(6).1

Plaintiff appears to allege claims

against IBU based upon discrimination and failure to provide
services, but has not pled any factual allegations supporting
those claims.
DISCUSSION
I.

Plaintiff’s Operative Pleading
At the outset, this Court must address the Foss

Defendants’ argument that Plaintiff’s operative pleading consists
collectively of the 7/28/15 Complaint, the 7/31/15 Filing, the
8/12/15 Filing, the 9/14/15 Filing, and the 10/15/15 Complaint.
As a general rule, “when a plaintiff files an amended
complaint, the amended complaint supercedes the original, the
latter being treated thereafter as non-existent.”
1

Rhodes v.

It is unclear whether IBU seeks dismissal of the claims
against it with prejudice or without prejudice. Compare IBU
Motion at 2 (moving for dismissal with prejudice), with Mem. in
Supp. of IBU Motion at 7 (arguing the Court should grant the IBU
Motion and dismiss Plaintiff’s claims without prejudice).
4

Robinson, 621 F.3d 1002, 1005 (9th Cir. 2010) (brackets, internal
quotation marks, and citation omitted).

As previously noted, the

10/2/15 EO cautioned Plaintiff that: his amended complaint had to
include all allegations that his claims rely upon, even if he
included those allegations in prior versions of his complaint;
and he could not incorporate the contents of prior versions of
the complaint merely by referring to the document in the amended
complaint.

It appears that Plaintiff did not completely

understand this admonition.
The 10/15/15 Complaint states: “I know that the Judge
said that I should not rely (refer to) on earlier documents but I
ask the Judge to consider this a continuance and better detail of
previous statements.”

[10/15/15 Complaint at 4.2]

Further,

although the narrative in the 10/15/15 Complaint is longer than
the text of the 7/28/15 Complaint, the 7/31/15 Filing, the
8/12/15 Filing, or the 9/14/15 Filing, the 10/15/15 Complaint is
not a compilation of the content of the previous filings.

For

example, while the 10/15/15 Complaint contains additional factual
allegations that were not set forth in his previous filings, the
following allegations and statements are examples of relevant
content in his previous filings that he failed to include in the

2

Plaintiff’s filings do not have page numbers. Thus, the
citations to Plaintiff’s filings in this Order refer to the page
numbers assigned to the respective filings in the district
court’s electronic case filing system.
5

10/15/15 Complaint:
-allegations that IBU “failed to properly represent” him and that
Foss “broke many collective bargaining agreement rules as
well as both Federal and State labor laws”; [7/28/15
Complaint at 1;]
-a statement that Plaintiff brings this action pursuant to “the
Jones Act, 46 U.S.C. 688”;3 [7/31/15 Filing at 1;]
-a prayer for relief and a jury demand; [id. at 5;] and
-a statement of the specific claims Plaintiff is asserting
against which Defendant [9/14/15 Filing at 1].
In addition, although Plaintiff’s 10/15/15 Complaint includes
multiple exhibits, it does not include significant documents that
Plaintiff included with some of his prior filings.

Plaintiff’s

7/28/15 Complaint included his Dismissal and Notice of Rights,
dated April 27, 2015, from the United States Equal Employment
Opportunity Commission; and his 9/14/15 Filing included his
Notice of Dismissal and Right to Sue letter, dated May 11, 2015,
from the Hawai`i Civil Rights Commission.

Both concerned

Plaintiff’s charge of discrimination against Hawaiian Tug &
Barge/Foss Maritime.4

[Dkt. nos. 1-1, 10-1.]

This Court must liberally construe Plaintiff’s
pleadings because he is proceeding pro se.

3

See, e.g., Eldridge

The Jones Act is 46 U.S.C. § 30104, et seq.
formerly cited as 46 U.S.C. App. § 688, et seq.
4

It was

According to Plaintiff, Foss Maritime bought out Hawaiian
Tug & Barge (“HTB”) and, effective January 1, 2014, HTB became
the Hawai`i division of Foss Maritime. [10/15/15 Complaint at
6.] Plaintiff began his employment with HTB on June 12, 2012.
[Id. at 5.]
6

v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (“The Supreme Court
has instructed the federal courts to liberally construe the
‘inartful pleading’ of pro se litigants.” (citing Boag v.
MacDougall, 454 U.S. 364, 365, 102 S. Ct. 700, 701, 70 L. Ed. 2d
551 (1982) (per curiam))).

This Court will therefore – for

purposes of the instant motions only – construe the 7/28/15
Complaint, the 7/31/15 Filing, the 8/12/15 Filing, the 9/14/15
Filing, and the 10/15/15 Complaint collectively as Plaintiff’s
operative pleading (“the Complaint”).
This Court now turns to the merits of the instant
motions.
II.

Failure to Comply with Rule 8(a)(2)
The United States Supreme Court has stated that

Rule 8(a)(2) “requires only ‘a short and plain statement of the
claim showing that the pleader is entitled to relief,’ in order
to give the defendant fair notice of what the . . . claim is and
the grounds upon which it rests.”

Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007) (some citations and internal quotation
marks omitted).

The “grounds” that the Supreme Court referred to

are the facts being alleged that form the basis for the
plaintiff’s claim.

See id. (“[A] plaintiff’s obligation to

provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires
more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.
7

Factual

allegations must be enough to raise a right to relief above the
speculative level.” (some alterations in Twombly) (citations
omitted)).

In addition, the Ninth Circuit has stated that a

district court “may dismiss an action for noncompliance with
Rule 8 after considering less drastic alternatives if it cannot
determine who is being sued, for what relief, and on what
theory.”

Cobb v. Reyes, 467 F. App’x 599, 599-600 (9th Cir.

2012).
Contrary to Fed. R. Civ. P. 10(b), Plaintiff did not
set forth his factual allegations in numbered paragraphs.5

This

Court also acknowledges that the Complaint is not a model of
clarity, and the Complaint is – at times – rambling.

However,

viewing the Complaint as a whole and reading it liberally, it is
apparent to this Court that the crux of Plaintiff’s claims is the
allegedly wrongful termination of his employment with Foss and
IBU’s alleged failure to properly represent him in connection
with his termination.

Plaintiff alleges that the purported

reasons for his termination – his sub-standard job performance
and failure to satisfactorily complete a training program that
Foss told him would allow him to remain employed – was a pretext.

5

Rule 10(b) states, in pertinent part: “A party must state
its claims or defenses in numbered paragraphs, each limited as
far as practicable to a single set of circumstances. . . . If
doing so would promote clarity, each claim founded on a separate
transaction or occurrence . . . must be stated in a separate
count[.]”
8

Plaintiff also alleges that Myers and Olson intentionally
participated in his termination under false pretenses.

This

Court therefore CONCLUDES that Plaintiff’s Complaint gives the
Foss Defendants and IBU (collectively “Defendants”) fair notice
of the general grounds upon which Plaintiff bases his claims.
Plaintiff, however, must also give Defendants fair notice of what
the claims against them are.
A.

Plaintiff’s Claims Against Foss
Plaintiff alleges that Foss “broke many collective

bargaining agreement rules as well as both Federal and State
labor laws.”

[7/28/15 Complaint at 1.]

Plaintiff does not

identify what provision of the collective bargaining agreement
(“CBA”), or what specific federal and state labor laws, Foss
allegedly violated.

Similarly, although it is clear that

Plaintiff is attempting to bring a wrongful termination claim
against Foss, this Court cannot determine what theory this claim
is based upon.

Some of Plaintiff’s allegations suggest that this

claim is based on a breach of contract theory.

See, e.g.,

10/15/15 Complaint at 6 (describing the December 6, 2013 letter
informing Plaintiff of his placement in the remedial training
program as a “contract”).

However, other allegations suggest

that Plaintiff’s theory is that he was wrongfully terminated
because of his age.

See, e.g., id. at 2 (alleging that, although

Foss would, as a general rule, pay for former HTB captains to

9

take the classes necessary to upgrade their licenses to satisfy
Foss’s additional job requirements, it would not do so for
Plaintiff because of his age, and therefore Plaintiff had no
future with Foss).

This Court therefore CONCLUDES that

Plaintiff’s claims against Foss alleging violation of the CBA,
violation of federal labor laws, violation of state labor laws,
and wrongful termination fail to give Foss sufficient notice, as
required by Fed. R. Civ. P. 8(a)(2).

This Court GRANTS the Foss

Motion insofar as this Court DISMISSES those claims pursuant to
Rule 8(a)(2).
Plaintiff also asserts the following claims against
Foss: intentional infliction of emotional distress (“IIED”);6
fraud; negligent misrepresentation; and breach of contract.
[9/14/15 Filing at 1.]

This Court CONCLUDES that the assertion

of these claims provides sufficient notice for purposes of
Rule 8(a)(2), and this Court DENIES the Foss Motion’s request for
dismissal of those claims based on Rule 8(a)(2).
B.

Plaintiff’s Claims Against Myers and Olson
Although Plaintiff describes how Myers and Olson were

6

Plaintiff also refers to the “Tort of outrage.” [9/14/15
Filing at 1.] However, under Hawai`i law, “IIED” and the “tort
of outrage” refer to the same cause of action. See, e.g., Ingle
v. Liberty House, Inc., Civil No. 94-0787(3), 1995 WL 757746, at
*4 (Hawai`i Cir. Ct. Oct. 12, 1995) (“The tort of intentional
infliction of emotional distress protects one’s interest
emotional security, solitude, stability and peace. It is
sometimes referred to as the tort of ‘outrage.’”).
10

allegedly involved in the events that led to his termination, and
Plaintiff alleges that they acted intentionally, Plaintiff does
not identify the claims that he is bringing against Myers and
Olson.

If Plaintiff’s position is that they are liable to the

same extent that Foss is liable, the Complaint does not identify
the legal basis for that position.

This Court therefore

CONCLUDES that Plaintiff has failed to give Myers and Olson
sufficient notice of the claims against them, as required by
Rule 8(a)(2).

This Court GRANTS the Foss Motion insofar as this

Court DISMISSES Plaintiff’s purported claims against Myers and
Olson pursuant to Rule 8(a)(2).
C.

Plaintiff’s Claims Against IBU
Plaintiff’s Complaint, read as a whole and liberally

construed, alleges that IBU failed to properly represent him and
discriminated against him during the events that led to his
termination and in the months that followed.

This Court cannot

determine, based on the allegations in the Complaint, how IBU
allegedly discriminated against Plaintiff.

Although the

Complaint contains some allegations regarding age discrimination,
the alleged discrimination was committed by Foss personnel, and
there is no allegation that IBU is liable for those allegedly
discriminatory actions.

The Complaint does not contain any

allegations of discrimination by IBU itself.

This Court

therefore CONCLUDES that Plaintiff has failed to give IBU

11

sufficient notice of the discrimination claim against it, as
required by Rule 8(a)(2).

However, this Court CONCLUDES that the

Complaint, liberally construed, gives IBU sufficient notice that
Plaintiff is asserting a claim against it for breach of the duty
of fair representation.
Insofar as the IBU Motion asks this Court to dismiss
the claims against IBU pursuant to Rule 8(a)(2), the IBU motion
is GRANTED IN PART AND DENIED IN PART.

The discrimination claim

against IBU is DISMISSED pursuant to Rule 8(a)(2), but the
request to dismiss the fair representation claim against IBU
pursuant to Rule 8(a)(2) is DENIED.
III. Dismissal Pursuant to Rule 12(b)(6)
Defendants argue that, even where Plaintiff’s claims
survive dismissal under the Rule 8(a)(2) standard, this Court
must dismiss the claims under Rule 12(b)(6).

The Ninth Circuit

has described the standard applicable to a motion under Fed. R.
Civ. P. 12(b)(6) as follows:
To survive a motion to dismiss for failure to
state a claim after the Supreme Court’s decisions
in Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct.
1937, 173 L. Ed. 2d 868 (2009) and Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955,
167 L. Ed. 2d 929 (2007), the [plaintiff’s]
factual allegations “must . . . suggest that the
claim has at least a plausible chance of success.”
In re Century Aluminum [Co. Sec. Litig.], 729 F.3d
[1104,] 1107 [(9th Cir. 2013)]. In other words,
their complaint “must allege ‘factual content that
allows the court to draw the reasonable inference
that the defendant is liable for the misconduct
alleged.’” Id. (quoting Iqbal, 556 U.S. at 678,
12

129 S. Ct. 1937).
Levitt v. Yelp! Inc., 765 F.3d 1123, 1134-35 (9th Cir. 2014)
(some alterations in Levitt).

For purposes of the instant

motions to dismiss, this Court must assume that all of the
factual allegations in the Complaint are true.

However, this

Court is “‘not bound to accept as true a legal conclusion couched
as a factual allegation.’”

See Iqbal, 556 U.S. at 678 (quoting

Twombly, 550 U.S. at 555, 127 S. Ct. 1955).
A.

Claims Against Foss
Plaintiff’s remaining claims against Foss are state law

claims: IIED; fraud; negligent misrepresentation; and breach of
contract.
The Hawai`i courts “have adopted the Restatement
(Second) of Torts’ approach to IIED claims.

The elements of an

IIED claim are: ‘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.’”

Simmons v. Aqua Hotels & Resorts, Inc., 130 Hawai`i

325, 332, 310 P.3d 1026, 1033 (Ct. App. 2013) (quoting Hac v.
Univ. of Hawai`i, 102 Hawai`i 92, 106–07, 73 P.3d 46, 60–61
(2003)).

Plaintiff’s Complaint does not state sufficient factual

allegations to allow this Court to draw the reasonable inference
that Foss is liable for IIED.

This Court therefore CONCLUDES

that Plaintiff’s IIED claim against Foss fails to state a

13

plausible claim for relief.
Turning to Plaintiff’s fraud claim, this district court
has stated:
A party claiming fraud must establish the
following elements:
(1) false representations were made by
defendants, (2) with knowledge of their
falsity (or without knowledge of their truth
or falsity), (3) in contemplation of
plaintiff’s reliance upon these false
representations, and (4) plaintiff did rely
upon them.
Shoppe v. Gucci Am., Inc., 94 Hawai`i 368, 386, 14
P.3d 1049, 1067 (2000). Additionally, Federal
Rule of Civil Procedure 9(b) imposes a “heightened
pleading standard” requiring a party to state with
particularity the circumstances constituting
fraud. In other words, “[a]verments of fraud must
be accompanied by the who, what, when[,] where[,]
and how of the misconduct charged.” Vess v.
Ciba–Geigy Corp. USA, 317 F.3d 1097, 1106 (9th
Cir. 2003).
Pregana v. CitiMortgage, Inc., Civil No. 14-00226 DKW-KSC, 2015
WL 1966671, at *4-5 (D. Hawai`i Apr. 30, 2015) (some alterations
in Pregana) (some citations and internal quotation marks
omitted).

Plaintiff’s Complaint does not state facts in his

allegations that would establish the elements of his fraud claim.
Further, the Complaint does not satisfy the heightened pleading
standard for fraud claims – the who, what, when, where and how of
the alleged misconduct by Foss.

This Court therefore CONCLUDES

that Plaintiff’s fraud claim against Foss fails to state a
plausible claim for relief.

14

Plaintiff’s negligent misrepresentation claim is not
subject to the heightened pleading standard for fraud-based
claims.

See Soriano v. Wells Fargo Bank, N.A., Civil. No.

11–00044 SOM/KSC, 2012 WL 1536065, at *13 (D. Hawai`i Apr. 30,
2012) (“Although a negligent misrepresentation claim in some
jurisdictions is subject to Rule 9(b), a negligent
misrepresentation claim under Hawaii law is not.” (citations
omitted)).

The elements of a negligent misrepresentation claim

are: “(1) false information be supplied as a result of the
failure to exercise reasonable care or competence in
communicating the information; (2) the person for whose benefit
the information is supplied suffered the loss; and (3) the
recipient relies upon the misrepresentation.”

Santiago v.

Tanaka, No. SCWC-11-0000697, 2016 WL 207118, at *16 (Hawai`i Jan.
15, 2016) (citations and quotation marks omitted).

Plaintiff’s

Complaint does not contain facts in his claim that would
establish the elements of his negligent misrepresentation claim.
This Court therefore CONCLUDES that Plaintiff’s negligent
misrepresentation claim against Foss fails to state a plausible
claim for relief.
Turning to Plaintiff’s breach of contract claim, this
Court has stated:
To state a claim for breach of contract, a
plaintiff must plead: (1) the contract at issue;
(2) the parties to the contract; (3) whether
plaintiff performed under the contract; (4) the
15

particular provision of the contract allegedly
violated by [d]efendant; and (5) when and how
[d]efendant allegedly breached the contract.
Leff v. Bertozzi Felice Di Giovanni Rovai & C. Srl, CIVIL NO. 1500176 HG-RLP, 2015 WL 9918660, at *5 (D. Hawai`i Dec. 30, 2015)
(alterations in Leff) (citations and internal quotation marks
omitted), report and recommendation adopted, 2016 WL 335850 (D.
Hawai`i Jan. 26, 2016).

In the instant case, Plaintiff’s

Complaint does not contain either the basic elements of a breach
of contract claim or the facts to support such a claim.

This

Court therefore CONCLUDES that Plaintiff’s breach of contract
claim against Foss fails to state a plausible claim for relief.
This Court GRANTS the Foss Motion insofar as this Court
DISMISSES Plaintiff’s IIED, fraud, negligent misrepresentation,
and breach of contract claims against Foss pursuant to
Rule 12(b)(6).
B.

Claim Against IBU
Turning to Plaintiff’s claim against IBU for breach of

the duty of fair representation, this district court has stated:
[W]hen an employer breaches a CBA and a union
fails to address the breach, plaintiffs may bring
a “hybrid action” pursuant to Vaca [v. Sipes]
against both the employer and the union. See Vaca
[v. Sipes], 386 U.S. [171,] 186, 87 S. Ct. 903
[(1967)]. In DelCostello v. Int’l Brotherhood of
Teamsters, the United States Supreme Court
explained the nature of such a hybrid action
brought pursuant to Vaca: “when the union
representing the employee [against the employer]
in the grievance/ arbitration procedure acts in
such a discriminatory, dishonest, arbitrary, or
16

perfunctory fashion as to breach its duty of fair
representation . . . an employee may bring suit
against both the employer and the union,
notwithstanding the outcome or finality of the
grievance or arbitration proceeding.” See
DelCostello v. Int’l Brotherhood of Teamsters, 462
U.S. 151, 164, 103 S. Ct. 2281, 76 L. Ed. 2d 476
(1983). The resulting hybrid action claim
comprises two causes of action. Id. “The suit
against the employer rests on § 301 [of the Labor
Management Relations Act, 29 U.S.C. § 185], since
the employee is alleging a breach of the
collective bargaining agreement.” Id. “The suit
against the union is one for breach of the union’s
duty of fair representation, which is implied
under the scheme of the National Labor Relations
Act.” Id. To prevail against either the employer
or the union, the employee-plaintiff must not only
show that his “discharge was contrary to the
contract but must also carry the burden of
demonstrating a breach of duty by the Union.” Id.
at 164–65, 103 S. Ct. 2281; see also Bliesner v.
Commc’n Workers of Am., 464 F.3d 910, 914 (9th
Cir. 2006) (noting that “breach of a duty of fair
representation by the union is a necessary
prerequisite to a successful suit against the
employer for a breach of the CBA”); Gibson v. U.S.
Postal Serv., 380 F.3d 886, 888–89 (5th Cir. 2004)
(“Hybrid § 301 actions are comprised of two
elements: 1) an allegation that the employer
breached the collective bargaining agreement; and
2) an allegation that the union breached its duty
of fair representation.” (citations omitted)).
Nosie v. Ass’n of Flight Attendants-CWA, AFL-CIO, 722 F. Supp. 2d
1181, 1201 n.13 (D. Hawai`i 2010) (some alterations in Nosie).
In the instant case, to the extent he is alleging a hybrid § 301
claim, Plaintiff’s claim fails because: 1) he did not allege a
sufficient claim against Foss for breach of the CBA; and 2) he
neither alleges how IBU failed to properly represent him nor
pleads sufficient facts to support his claim against IBU.

17

This Court therefore CONCLUDES that Plaintiff’s claim
against IBU for breach of the duty of fair representation fails
to state a plausible claim for relief.

This Court GRANTS the IBU

Motion insofar as this Court DISMISSES that claim pursuant to
Rule 12(b)(6).
IV.

Summary and Leave to Amend
This Court has dismissed all of Plaintiff’s claims,

pursuant to either Rule 8(a)(2) or Rule 12(b)(6).

The Ninth

Circuit has held that, “[u]nless it is absolutely clear that no
amendment can cure the defect, . . . a pro se litigant is
entitled to notice of the complaint’s deficiencies and an
opportunity to amend prior to dismissal of the action.”

See

Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995).
As to the claims that this Court has dismissed pursuant
to Rule 12(b)(6), this Court CONCLUDES that it is arguably
possible for Plaintiff to cure the defects in those claims by
amendment.

As to the claims that this Court has dismissed

pursuant to Rule 8(a)(2), this Court cannot give Plaintiff notice
of the claims’ specific deficiencies because this Court cannot
determine the precise nature of those claims.

However, that also

means that this Court cannot conclude that it is absolutely clear
no amendment can cure the defects in those claims.

This Court

therefore CONCLUDES that it is arguably possible for Plaintiff to
amend the Complaint to cure the defects in the claims that this

18

Court dismissed pursuant to Rule 8(a)(2).

Thus, the dismissal of

each of Plaintiff’s claims is WITHOUT PREJUDICE.

To the extent

that the IBU Motion seeks dismissal of the claims against IBU
with prejudice, the IBU Motion is DENIED.
Insofar as the dismissal is without prejudice, this
Court will allow Plaintiff to file a motion for leave to file a
second amended complaint.

Plaintiff must attach his proposed

second amended complaint to the motion for leave to file.

See

Local Rule LR10.3 (“Any party filing or moving to file an amended
complaint . . . shall reproduce the entire pleading as amended
and may not incorporate any part of a prior pleading by
reference, except with leave of court.”).

This Court ORDERS

Plaintiff to file his motion for leave to file a second amended
complaint by April 29, 2016.

The motion will be referred to the

magistrate judge.
This Court CAUTIONS Plaintiff that his second amended
complaint must state all of the claims that he is making and it
must contain all of the facts, all of the legal theories, and all
of the exhibits that his claims rely upon.

Plaintiff cannot rely

upon or incorporate by reference any portion of any of his prior
pleadings in this case.

This Court will not consider Plaintiff’s

second amended complaint collectively with his prior pleadings in
this case.

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This Court also CAUTIONS Plaintiff that, if he fails to
file his motion for leave to file a second amended complaint by
April 29, 2016, all of the claims that this Court dismissed
without prejudice in this Order will be dismissed with prejudice,
and this Court will direct the Clerk’s Office to issue the final
judgment and close the case.

In other words, Plaintiff would

have no remaining claims in this case, and his lawsuit will be
over.

This Court also CAUTIONS Plaintiff that, even if the

magistrate allows Plaintiff to file his proposed second amended
complaint, this Court may still dismiss any amended claim with
prejudice if the amended claim fails to cure the defects
identified in this Order.
IV.

Plaintiff’s Address
Finally, this Court notes that Plaintiff’s address of

record is a Honolulu address.

As recently as January 28, 2016,

Plaintiff filed a document with that address.

[Dkt. no. 46.]

However, when the Clerk’s Office served this Court’s February 16,
2016 order on Plaintiff at that address, the envelope was
returned as undeliverable, with a notation that Plaintiff’s
address is a Kailua Kona general delivery address.
(order), 50 (entry regarding return).]

[Dkt. no. 47

Plaintiff’s memorandum in

opposition to the instant motions had a street address in Kailua
Kona.

Plaintiff states that he has moved and that this is his

new address.

[Mem. in Opp. at 2.]
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Local Rule 83.1(h) states, in pertinent part:
A pro se party shall . . . file and serve on all
other parties who have appeared in the action any
change of address, and the effective date of the
change. The notice required by this rule shall be
filed within fourteen (14) days of the change.
Failure to comply with this rule may result in
sanctions, including but not limited to monetary
fines, dismissal of the case, or entry of a
judgment.
Although Plaintiff has not filed a notice of his change of
address, as required by Local Rule 83.1(h), in light of the fact
that Plaintiff is proceeding pro se, this Court CONSTRUES the
memorandum in opposition as his notice of his change of address.
This Court DIRECTS the Clerk’s Office to change Plaintiff’s
address of record to the address reflected in the memorandum in
opposition.
This Court REMINDS Plaintiff that, if he wishes to
change his address of record in the future, he must file the
notice described in Local Rule 83.1(h).

This Court CAUTIONS

Plaintiff that his failure to do may result in the dismissal of
this case.
CONCLUSION
On the basis of the foregoing, the Foss Defendants’
Motion to Dismiss Plaintiff’s Operative Pleading, filed
October 23, 2015, is HEREBY GRANTED IN PART AND DENIED IN PART,
and IBU’s Motion to Dismiss Plaintiff Larry Neal Bosworth’s
Operative Pleading, filed October 30, 2015, is HEREBY GRANTED IN

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PART AND DENIED IN PART.

Each of the claims in Plaintiff’s

current “Complaint” – which consists collectively of the
documents listed supra Discussion Section I – is HEREBY DISMISSED
WITHOUT PREJUDICE.

Plaintiff must file his motion for leave to

file a second amended complaint by April 29, 2016, and the motion
must comply with the rulings in this Order.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, March 21, 2016.

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

LARRY NEAL BOSWORTH VS. FOSS MARITIME, ET AL; CIVIL 15-00285 LEKBMK; ORDER: GRANTING IN PART AND DENYING IN PART DEFENDANTS FOSS
MARITIME COMPANY, RODNEY ALLEN MYERS, AND WHITNEY OLSON’S MOTION
TO DISMISS PLAINTIFF’S OPERATIVE PLEADING; AND GRANTING IN PART
AND DENYING IN PART DEFENDANT INLANDBOATMEN’S UNION OF THE
PACIFIC’S MOTION TO DISMISS PLAINTIFF LARRY NEAL BOSWORTH’S
OPERATIVE PLEADING

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