Bosworth v. Foss Maritime et al

Filing 93

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. Signed by JUDGE LESLIE E. KOBAYASHI on 1 0/31/2016. (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 served by first class mail on November 1, 2016

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 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
On July 29, 2016, the magistrate judge filed his
Findings and Recommendation to Deny Plaintiff Larry Bosworth’s
Motion for Leave to File a Second Amended Complaint (“F&R”).
[Dkt. no. 78.]

Pro se Plaintiff Larry Neal Bosworth

(“Plaintiff”) filed his objections to the F&R on August 29,
2016.1

[Dkt. no. 82.]

Defendants Foss Maritime Company

(“Foss”), Rodney Allen Myers, and Whitney Olson (collectively
“the Foss Defendants”) filed their response to the Objections
(“Foss Response”) on September 19, 2016.

[Dkt. no. 87.]

Defendant Inlandboatmen’s Union of the Pacific (“IBU”) filed two
1

The document is titled “Responce [sic] to July 29th
Findings and Recommendations to Deny Plaintiff Larry Bosworth’s
Motion for Leave to File a Second Amended Complaint.” On
September 2, 2016, this Court issued an entering order (“9/2/16
EO”) construing the document as Plaintiff’s Objections and
stating that this Court would consider the Objections, even
though they were untimely. [Dkt. no. 86.]

responses to the Objections (“IBU Response”) on September 20,
2016.2

[Dkt. nos. 88, 89.]

Although the 9/2/16 EO did not give

him leave to file further briefing, on September 20, 2016,
Plaintiff filed a document titled “Optional Statement in Resposne
to Order Regarding Plaitniffs [sic] 8/29 Filing.”

[Dkt. no. 90.]

The Court has considered this matter without a hearing 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”).

After careful consideration of the Objections, the

responses, and the relevant legal authority, the Objections are
HEREBY DENIED, and the F&R is HEREBY ADOPTED for the reasons set
forth below.
BACKGROUND
The instant case arises from a series of events that
culminated in the allegedly wrongful termination of Plaintiff’s
employment with Foss and IBU’s alleged failure to properly
represent him in connection with his termination.

The crux of

Plaintiff’s allegations is that Foss required him to undergo a
training program, but the program was merely a pretext.
According to Plaintiff, Foss did not actually provide him with
any training and instead placed him in high-stress job situations
where he was likely to fail.

Foss intended to use Plaintiff’s

2

This appears to be inadvertent because IBU’s two responses
appear to be substantively identical.
2

poor performance in the purported training program as the reason
for his termination, but Plaintiff argues that this was merely a
pretext.
On March 21, 2016, this Court issued an order that
granted in part and denied in part both the Foss Defendants’
motion to dismiss and IBU’s motion to dismiss (“3/21/16 Order”).
[Dkt. no. 53.]

In the 3/21/16 Order, this Court dismissed all of

Plaintiff’s claims pursuant to either Fed. R. Civ. P. 8(a)(2) or
Fed. R. Civ. P. 12(b)(6).

The dismissal was without prejudice,

and this Court allowed Plaintiff to file a motion seeking leave
to file a second amended complaint.

[3/21/16 Order at 18-19.]

On April 29, 2016, Plaintiff filed a document titled
“Motion for Leave to File a Second Amended Complaint.”
57.]

[Dkt. no.

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”).
at 5.]

[F&R

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 distress.

3

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 seq.3

[Id. at 7-8.]

The magistrate judge concluded that all of the claims
in the Proposed Complaint were futile and recommended that this
Court deny Plaintiff’s Motion for Leave.

The magistrate judge

concluded that Plaintiff’s hybrid § 301 claim was futile because
he failed to commence this action within the applicable statute
of limitations period.

[Id. at 8-11.]

The magistrate judge

concluded that Plaintiff’s § 378-32 claim was futile because
subsection (a)(2) was the most closely applicable, and it
prohibited termination because of an injury that is compensable
under Haw. Rev. Stat. Chapter 386, which governs workers’
compensation.

The magistrate judge concluded that Chapter 386

did not apply to Plaintiff because he was a Jones Act seaman, and
therefore he could not bring a § 378-32(a)(2) wrongful
termination claim.

[Id. at 11-12.]

The magistrate judge

interpreted Plaintiff’s fraud claim and breach of contract claim
as arising from his wrongful termination.

He concluded that

these claims failed to state a claim and, even if these claims

3

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.”
4

could be amended, they would be preempted by § 301 of the LMRA.4
He therefore concluded that those claims were futile.
12-16.]

[Id. at

As to Plaintiff’s claim alleging that Myers and Olson

willfully contributed to his wrongful termination, the magistrate
judge construed this as arising under § 301, and concluded that
the claim was futile because individuals are not proper parties
in § 301 claims.

[Id. at 16-17.]

To the extent that the Proposed Complaint alleged a
state law IIED claim, the magistrate judge concluded that it was
futile because the allegations in the Proposed Complaint were not
sufficient to state an IIED claim.

[Id. at 18-20.]

To the

extent that Plaintiff alleged a claim for intentional infliction
of emotional distress pursuant to the Jones Act, the magistrate
judge noted that it was not clear whether such a claim was
cognizable under the Jones Act.

[Id. at 20-21.]

However, if it

is, it would require a “‘severe emotional injury’ as the result

4

The magistrate judge stated:
“Section 301(a) of the [Labor Management
Relations Act (“LMRA”)] provides a federal remedy
for breach of a collective-bargaining agreement.”
Groves v. Ring Screw Works, Ferndale Fastener
Div., 498 U.S. 168, 172 (1990). This section
authorizes “‘suits by and against individual
employees as well as between unions and
employers,’ including actions against an employer
for wrongful discharge.” Id. (citing Hines v.
Anchor Motor Freight, Inc., 424 U.S. 554, 562
(1976).

[F&R at 8 (alteration in F&R).]
5

of ‘unconscionable abuse’ or ‘extreme and outrageous conduct.’”
[Id. at 21 (quoting Yballa v. Sea-Land Servs., Inc., 919 F. Supp.
1428, 1434 (D. Hawai`i 1995)).]

The magistrate judge concluded

that Plaintiff’s claim was futile because allegations in the
Proposed Complaint did not rise to this level.

[Id. at 21-22.]

To the extent that Plaintiff alleged a state law NIED claim, the
magistrate judge concluded that it was futile because Plaintiff
did not allege a physical injury to Plaintiff or another person,
which is a required element of an NIED claim.

[Id. at 23.]

To

the extent that Plaintiff alleged a claim for negligent
infliction of emotional distress pursuant to the Jones Act, the
magistrate judge concluded that it was futile because Plaintiff
did not allege the required element of physical contact.

[Id. at

24.]
Plaintiff raises the following objections to the F&R:
1) the magistrate judge erred when he concluded that Plaintiff’s
hybrid § 301 claim was untimely; 2) the Jones Act is not his
exclusive remedy and does not preclude him from bringing a
workers’ compensation claim; 3) he must be allowed to pursue his
Jones Act claims in this case because he tried to pursue state
and federal workers’ compensation claims, and he was told such
claims were improper because he had to pursue Jones Act claims in
federal court; 4) he can pursue other types of claims under
§ 378-32 besides a § 378-32(a)(2) claim; 5) the magistrate judge

6

erred when he interpreted the Proposed Complaint as alleging that
his wrongful termination caused him psychological injury – he was
already suffering from a psychological injury caused by workrelated stress when he was terminated; and 6) the magistrate
judge misinterpreted the allegations in support of Plaintiff’s
fraud claim – it arises from fraudulent statements that were made
to him when he called the employee hotline service.

The Court

will address each of Plaintiff’s arguments in turn.
STANDARD
This Court reviews a magistrate judge’s findings and
recommendations under the following standard:
When a party objects to a magistrate judge’s
findings or recommendations, the district court
must review de novo those portions to which the
objections are made and “may accept, reject, or
modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28
U.S.C. § 636(b)(1); see also United States v.
Raddatz, 447 U.S. 667, 673 (1980); United States
v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th Cir.
2003) (en banc) (“[T]he district judge must review
the magistrate judge’s findings and
recommendations de novo if objection is made, but
not otherwise.”).
Under a de novo standard, this Court reviews
“the matter anew, the same as if it had not been
heard before, and as if no decision previously had
been rendered.” Freeman v. DirecTV, Inc., 457
F.3d 1001, 1004 (9th Cir. 2006); United States v.
Silverman, 861 F.2d 571, 576 (9th Cir. 1988). The
district court need not hold a de novo hearing;
however, it is the court’s obligation to arrive at
its own independent conclusion about those
portions of the magistrate judge’s findings or
recommendation to which a party objects. United
States v. Remsing, 874 F.2d 614, 616 (9th Cir.
7

1989).
Muegge v. Aqua Hotels & Resorts, Inc., Civil 09-00614 LEK-BMK,
2015 WL 4041313, at *2 (D. Hawai`i June 30, 2015) (alteration in
Muegge) (some citations omitted).
DISCUSSION
I.

Hybrid § 301 Claim
The magistrate judge was correct when he stated that

there is a six-month statute of limitations for hybrid § 301
claims.

See Soremekun v. Thrifty Payless, Inc., 509 F.3d 978,

989 n.39 (9th Cir. 2007) (stating that “hybrid § 301/fair
representation claims are subject to the six-month statute of
limitations set forth in section 10(b) of the National Labor
Relations Act (‘NLRA’), 29 U.S.C. § 160(b)” (citing DelCostello
v. Int’l Bhd. Of Teamsters, 462 U.S. 151, 169–70, 103 S. Ct.
2281, 76 L. Ed. 2d 476 (1983))).

The magistrate judge was also

correct that Plaintiff’s claim accrued on May 15, 2014, when IBU
informed him that it was not pursuing a grievance on his behalf
regarding his termination.

See Harris v. Alumax Mill Prods.,

Inc., 897 F.2d 400, 404 (9th Cir. 1990).
do not contest these specific conclusions.

Plaintiff’s Objections
Instead, Plaintiff

argues that: 1) the limitations period started anew when the
3/21/16 Order “suggested that [he] had a Hybrid 301 action”;
[Objections at 5;] and 2) the Jones Act extends the statute of
limitations period to three years.
8

The Ninth Circuit has also described the accrual date
of a hybrid § 301 claim as “when an employee knows or should know
of the alleged breach of duty of fair representation.”
897 F.2d at 404.

Harris,

In the instant case, Plaintiff knew or should

have known of IBU’s alleged breach of its duty of fair
representation when he received the May 15, 2014 letter, not when
this Court noted in the 3/21/16 Order that he may have been
trying to allege a hybrid § 301 claim.

This Court rejects

Plaintiff’s argument that his hybrid § 301 claim accrued – or
that the limitations period restarted – when this Court issued
the 3/21/16 Order.
As to Plaintiff’s argument that the Jones Act extends
the statute of limitations for his hybrid § 301 claim to three
years, the United States Supreme Court has held that a court
cannot apply the shorter statute of limitations for an
unseaworthiness claim when the claim is brought together with a
Jones Act negligence claim, which has a three-year statute of
limitations.

McAllister v. Magnolia Petroleum Co., 357 U.S. 221,

224-26 (1958).

However, the following was a critical part of the

Supreme Court’s rationale for its holding:
The appropriate period of limitations for
this action must be determined with an eye to the
practicalities of admiralty personal injury
litigation. When a seaman is injured he has three
means of recovery against his employer:
(1) maintenance and cure, (2) negligence under the
Jones Act, and (3) unseaworthiness. . . . [I]f
the seaman is to sue for both unseaworthiness and
9

Jones Act negligence, he must do so in a single
proceeding. That is a consequence of this Court’s
decision in Baltimore S.S. Co. v. Phillips, 274
U.S. 316, 47 S. Ct. 600, 71 L. Ed. 1069 (1927),
which held that these claims were but alternative
‘grounds’ of recovery for a single cause of
action. A judgment in the seaman’s libel for
unseaworthiness was held to be a complete ‘bar’ to
his subsequent action for the same injuries under
the Jones Act.
Id. at 224–25.

There is no corresponding statute or caselaw

requiring a seaman to bring a Jones Act claim together with his
hybrid § 301 claim.

This Court therefore rejects Plaintiff’s

argument that the applicable statute of limitations period for
his hybrid § 301 claim is the three-year statute of limitations
for a Jones Act claim.

This Court DENIES Plaintiff’s Objections

as to the magistrate judge’s analysis of the hybrid § 301 claim
in the Proposed Complaint and ADOPTS the magistrate judge’s
conclusion that Plaintiff’s hybrid § 301 claim in the Proposed
Complaint is futile.
II.

Section 378-32 Claim
The Proposed Complaint alleges “Labor law violations of

Section 378-32, (HRS).”

[Complaint at ¶ 1.1.]

Section 378-32

states:
(a) It shall be unlawful for any employer to
suspend, discharge, or discriminate against any of
the employer’s employees:
(1) Solely because the employer was summoned
as a garnishee in a cause where the employee
is the debtor or because the employee has
filed a petition in proceedings for a wage
earner plan under chapter XIII of the
10

Bankruptcy Act;
(2) Solely because the employee has suffered
a work injury which arose out of and in the
course of the employee’s employment with the
employer and which is compensable under
chapter 386 unless the employee is no longer
capable of performing the employee’s work as
a result of the work injury and the employer
has no other available work which the
employee is capable of performing. Any
employee who is discharged because of the
work injury shall be given first preference
of reemployment by the employer in any
position which the employee is capable of
performing and which becomes available after
the discharge and during the period
thereafter until the employee secures new
employment. This paragraph shall not apply
to any employer in whose employment there are
less than three employees at the time of the
work injury or who is a party to a collective
bargaining agreement which prevents the
continued employment or reemployment of the
injured employee;
(3) Because the employee testified or was
subpoenaed to testify in a proceeding under
this part; or
(4) Because an employee tested positive for
the presence of drugs, alcohol, or the
metabolites of drugs in a substance abuse
on-site screening test conducted in
accordance with section 329B-5.5; provided
that this provision shall not apply to an
employee who fails or refuses to report to a
laboratory for a substance abuse test
pursuant to section 329B-5.5.
(b) It shall be unlawful for an employer or a
labor organization to bar or discharge from
employment, withhold pay from, or demote an
employee because the employee uses accrued and
available sick leave; provided that:
(1) After an employee uses three or more
consecutive days of sick leave, an employer
11

or labor organization may require the
employee to provide written verification from
a physician indicating that the employee was
ill when the sick leave was used;
(2) This subsection shall apply only to
employers who:
(A) Have a collective bargaining
agreement with their employees; and
(B) Employ one hundred or more
employees; and
(3) Nothing in this subsection shall be
construed to supersede any provision of any
collective bargaining agreement or employment
benefits program or plan that provides
greater employee benefits or rights.
The magistrate judge noted that the Proposed Complaint did not
identify which subsection of § 378-32 Plaintiff was bringing his
claim under, but the magistrate judge found that subsection
(a)(2) was “the most applicable.”

[F&R at 11.]

Plaintiff appears to argue that the magistrate judge
erred in assuming that Plaintiff was bringing his claim pursuant
to subsection (a)(2).

However, the factual allegations of the

Proposed Complaint do not indicate that Plaintiff was discharged
or discriminated against because of: garnishment or bankruptcy
proceedings; see § 378-32(a)(1); his testimony or a subpoena for
his testimony in a proceeding under Chapter 378, Part III; see
§ 378-32(a)(3); or a positive drug or alcohol test; see § 37832(a)(4).

Thus, subsection (a)(2) is clearly the most closely

applicable part of subsection (a).

12

Section 378-32(b) prohibits employers and labor
organizations from barring, discharging, demoting, or withholding
pay from employee because of his use of “accrued and available
sick leave.”

Plaintiff’s Proposed Complaint alleges that he was:

wrongfully terminated – i.e. discharged; denied fair
representation by IBU in connection with his wrongful
termination; and subjected to emotional distress.
Complaint at § 4 (Nature of Complaint).]

[Proposed

The only alleged injury

that could possibly be redressed under § 378-32(b) is Plaintiff’s
termination.

The Proposed Complaint makes a number of references

to Plaintiff’s use of sick leave, and does state that the final
decision to terminate his employment was made while he was on
sick leave.

[Id. at 7, 9-10.]

However, the Proposed Complaint

does not allege that Plaintiff was terminated because of his use
of sick leave.

The stated reason for Plaintiff’s termination was

that he “was a substandard tug operator.”

[Id. at 7.]

Plaintiff

alleges that this was a “false pretense,” [id.,] but the Proposed
Complaint does not allege that the real reason behind his
termination was his use of sick leave.

It is not clear what

Plaintiff alleges was the improper reason for his termination
behind the pretext of poor performance.

On the one hand, it

seems that Plaintiff alleges that he was terminated because of
his age.

He alleges that Myers
tried to justify the companies [sic] position by
explaining to me how the industry has changed and
13

that companies like Foss were no longer settling
for the old school Captains. They were recruiting
out of the Maritime Academies looking for guys
that they could bring up with the big tonnage
mates licenses. At one point he even thanked me
for my long and incident free service to the
industry but matter-of-factly almost
apologetically assured me that there was no place
for me in the Foss atmosphere. He told me that
within a year Foss would require all of the former
[Hawaiian Tug & Barge (“HTB”)5] Captains to up
grade their licenses from 200 ton to 1600 ton.
But in my case that would require me to go back
and take all of the Coast Guard required classes
that I was never required to take. Companies like
Foss generally pay for those classes but in my
case and at my age “no way” would Foss cover those
expenses., [sic] that was essentially why Myers
reasoned that Foss held no future for me.
[Proposed Complaint at 8 (emphases added).]

However, in

discussing his Equal Employment Opportunity Commission (“EEOC”)
complaint about the training program, he expressly states that he
“did not come to them with” an age discrimination claim.
5.]

[Id. at

Plaintiff appears to suggest that a superior in the company

targeted Plaintiff “in his quest to move up the ladder in the
newly acquired Foss management atmosphere” and that the Foss’s
Seattle-based main office wanted Plaintiff out of the company.
[Id. at 10.]

Although it is not clear what Plaintiff alleges the

real reason for his termination was, it is clear that he has not
claimed that it was the use of sick leave.

5

Thus, § 378-32(b)

According to Plaintiff, Foss took over HTB, effective
January 1, 2014, and the HTB employees became employees of Foss’s
Hawai`i division. [Proposed Complaint at ¶ 6.2.] Plaintiff was
hired by HTB on May 12, 2012. [Id. at ¶ 6.1.]
14

does not apply to Plaintiff’s § 378-32 claim in the Proposed
Complaint.

The magistrate judge was correct that § 378-32(a)(2)

is the only subsection that arguably applied based on Plaintiff’s
allegations.

This Court therefore rejects Plaintiff’s argument

that the magistrate judge applied the wrong subsection of § 37832.
As relevant to the instant case, § 378-32(a)(2)
prohibits an employer from suspending, discharging, or
discriminating against an employee “[s]olely because the employee
has suffered a work injury which arose out of and in the course
of the employee’s employment with the employer and which is
compensable under chapter 386.”

Plaintiff does allege that he

suffered a work injury in the course of his employment –
emotional distress, including anxiety and loss of sleep, caused
by the training program that he was required to go through.
[Proposed Complaint at 7.]

Although he does not allege that he

was terminated because of his use of sick leave, he does allege
that he attempted to return to work after a doctor gave him
medical clearance, but Foss would not allow him to return to
work, claiming that the main office was reviewing his doctor’s
note.

Plaintiff never returned to work.

[Id. at 9-10.]

Liberally construed,6 the Proposed Complaint alleges that Foss

6

This Court must liberally construe Plaintiff’s pleadings
because he is proceeding pro se. See, e.g., Eldridge v. Block,
(continued...)
15

discriminated against Plaintiff because of his work injury by
refusing to allow him to return to work even after he received
medical clearance.
The magistrate judge concluded that § 378-32 did not
apply because Plaintiff’s injuries are not compensable under
Chapter 386.

[F&R at 11.]

Section 378-32(a)(2) applies if the

employee’s work injury is compensable under Chapter 386, Hawaii’s
Workers’ Compensation Law.

As noted by the magistrate judge,

Chapter 386 applies “to employees and employers engaged in
interstate and foreign commerce and to employees in maritime
employment and their employers not otherwise provided for by the
laws of the United States.”
added).

Haw. Rev. Stat. § 386-7 (emphasis

The magistrate judge concluded that Plaintiff’s alleged

work injury is not compensable under Chapter 386 because
Plaintiff’s relief is provided for by the Jones Act.

[F&R at

11.]
In the Objections, Plaintiff argues that the Jones Act
does not preclude him from recovering under Chapter 386.
Plaintiff’s Proposed Complaint clearly asserts that the Jones Act
applies to Plaintiff.

See, e.g., Proposed Complaint at ¶ 2.1

6

(...continued)
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))).
16

(“Jurisdiction of this matter falls under The Jones Act[.]”),
¶ 3.1 (stating that Plaintiff “is a lifelong Jones Act Seaman”).
The Foss Defendants do not contest the applicability of the Jones
Act, instead, they contend that Plaintiff misunderstands the
Jones Act.

See Foss Response at 1.

the Jones Act applies to Plaintiff.

Thus, it is undisputed that
As previously noted, the

Jones Act allows a seaman who has been “injured in the course of
employment” to bring a civil action against his employer.
U.S.C. § 30104.

46

This Court agrees with the magistrate judge

that, because the Jones Act applies to a seaman’s work injuries,
pursuant to § 386-7, Hawaii’s Workers’ Compensation Law is
inapplicable.

Further, because Plaintiff’s alleged work injury

is not compensable under Chapter 386, he cannot bring a § 37832(a)(2) claim.

This Court therefore DENIES Plaintiff’s

Objections as to his argument regarding the magistrate judge’s
analysis of his § 378-32 claim, and ADOPTS the magistrate judge’s
conclusion that the § 378-32 claim in the Proposed Complaint is
futile.
III. Jones Act Wrongful Termination
Plaintiff next contends that this Court must allow his
Jones Act claim to go forward because, when he pursued workers’
compensation claims under state and federal law, the claims were
rejected for lack of jurisdiction.

Plaintiff apparently asserts

that he was told that he had to pursue claims under the Jones Act

17

in federal court.

[Objections at 2-3.]

First, regardless of

what Plaintiff may or may not have been told during his pursuit
of his workers’ compensation claims, he cannot pursue Jones Act
claims in this action unless: 1) the type of claims he asserts
under the Jones Act are cognizable in the first instance; and
2) he pleads sufficient factual allegations to state a plausible
claim.

Cf. Cervantes v. Countrywide Home Loans, 656 F.3d 1034,

1043 (9th Cir. 2011) (“[L]eave to amend would be futile because
the plaintiffs cannot state a plausible basis for relief.”).
The magistrate judge recognized that Plaintiff may have
been alleging Jones Act claims related to his emotional distress,
but the magistrate judge concluded that he failed to plead
sufficient factual allegations to support such claims.

This

Court will address the sufficiency of those claims below.
Plaintiff also alleges that he must be allowed to
pursue his wrongful termination claim under the Jones Act.
at 3.]

[Id.

The magistrate judge did not construe Plaintiff’s

Proposed Complaint as alleging a wrongful termination claim under
the Jones Act.

Plaintiff apparently argues that the magistrate

judge erred in his interpretation of the Proposed Complaint.
Even assuming, for the sake of argument, that the Proposed
Complaint presents a wrongful termination claim under the Jones
Act, the claim is futile.

Plaintiff does not cite any legal

authority for his position that a seaman can bring a wrongful

18

termination claim under the Jones Act.
Absent a contractual agreement to the
contrary, a seaman’s employment is generally
terminable at will. See Smith v. Atlas Off–Shore
Boat Serv., Inc., 653 F.2d 1057, 1060 (5th Cir.
1981). In some circumstances, however, a court
sitting in admiralty will recognize a wrongful
termination cause of action when the termination
violates an important public policy. Thus, in
Smith, the leading case in this area, the court
held that a seaman who was fired in retaliation
for filing a personal injury action under the
Jones Act could bring a wrongful termination claim
under the general federal maritime law.
Seymore v. Lake Tahoe Cruises, Inc., 888 F. Supp. 1029, 1034–35
(E.D. Cal. 1995) (emphasis added) (footnotes omitted).

Cases

such as Seymore illustrate that termination is not an “injury”
that is actionable under the Jones Act.

Thus, to the extent the

Proposed Complaint alleges a wrongful termination claim under the
Jones Act, it would be futile.
It would also be futile to allow Plaintiff to try to
file a new proposed complaint alleging a wrongful termination
claim under general federal maritime law.

As the magistrate

judge stated:
When employment is governed by the terms of a
collective bargaining agreement between the
employer and a union, claims such as wrongful
termination and breach of contract are preempted
by section 301 of the LMRA. See Mayjor [v.
Harrah’s Las Vegas, Inc.], 136 Fed. Appx. [15,]
16–17 (9th Cir. 2005) (holding that the district
court properly determined that the plaintiff
employee’s wrongful termination and breach of
contract claim were preempted by section 301 of
the LMRA because plaintiff’s employment was
governed by the terms of the collective bargaining
19

agreement between his employer and his union).
[F&R at 15.]

It is undisputed that Plaintiff’s employment with

Foss was governed by the terms of the collective bargaining
agreement between Foss and IBU.

Plaintiff therefore cannot bring

a wrongful termination claim under general federal maritime law
because it would be preempted by § 301 of the LMRA.

Allowing

Plaintiff to propose such a claim would be futile.

This Court

therefore DENIES Plaintiff’s Objections as to his argument that
he should be allowed to pursue a wrongful termination claim under
either the Jones Act or general federal maritime law.
IV.

Alleged Misinterpretation of Plaintiff’s Injury
The magistrate judge noted that Plaintiff “appears to

allege that [his] wrongful termination caused him psychological
injury.”

[F&R at 8.]

Plaintiff argues that the magistrate judge

erred in interpreting the Proposed Complaint in this manner
because “[t]he psychological injury that [he] suffered . . . was
diagnosed and documented a month prior to [his] wrongful
termination.”

[Objections at 3.]

However, even assuming, for

the sake of argument, that this was error, the error was
harmless.
The magistrate judge clearly addressed Plaintiff’s
factual allegations regarding the psychological injury that
Plaintiff suffered prior to his wrongful termination.
example, the magistrate judge stated:

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For

Mr. Bosworth alleges that Foss’s attempt to train
him “got so stressful that [he] had to take some
sick time off . . . in order to seek council from
a company sanctioned psychologist to try and deal
with the stress, anxiety and loss of sleep that
[he] was experiencing as a result of this
process.”
[F&R at 22 (some alterations in F&R) (quoting Proposed Complaint
at 3).]

The magistrate judge clearly considered the factual

allegations regarding Plaintiff’s pre-termination psychological
injury when he evaluated the claims in the Proposed Complaint,
and he concluded that all of the allegations regarding
Plaintiff’s psychological injury were insufficient to allege
plausible claims for relief.

Therefore, any error in considering

Plaintiff’s psychological injury from his termination was
harmless because, even if he did not allege a psychological
injury arising from his termination, the magistrate judge still
would have concluded that Plaintiff’s claims based on
psychological injury were futile because they were not supported
by sufficient factual allegations.
This Court therefore DENIES Plaintiff’s Objections as
to his argument regarding the erroneous reading of the
allegations about the cause of his psychological injury.

This

Court ADOPTS the magistrate judge’s conclusion that Plaintiff’s
claims – under Hawai`i law and under the Jones Act – based on his
psychological injury are futile.

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V.

Alleged Misinterpretation of Fraud Claim
As to Plaintiff’s claim for “[w]rongful termination by

way of fraud,” [Proposed Complaint at ¶ 4.2,] the magistrate
judge stated that Plaintiff “alleges that he called the company’s
ethics hotline.

Although his statements are very difficult to

follow, it appears that Mr. Bosworth was dissatisfied with how
the individuals from the ethics hotline handled his call, and
thus, he believes this amounts to fraud.”
Proposed Complaint at 9).]

[F&R at 14 (citing

Plaintiff alleges that the magistrate

judge erred in concluding that this claim was futile because the
Proposed Complaint includes all of the required elements of a
fraud claim.

[Objections at 5.]

Plaintiff does allege the who, what, when, where, and
how of the alleged fraudulent statements by Skip Volkle – someone
from Foss management who allegedly misrepresented himself to
Plaintiff as being from a neutral third-party on the ethics
hotline.

[Proposed Complaint at 9-10.]

However, Plaintiff does

not allege that Mr. Volkle made the allegedly fraudulent
statements in contemplation that Plaintiff would rely on them,
nor does Plaintiff allege how he relied on Mr. Volkle’s
statements.

See 3/21/16 Order at 14 (describing the elements of

a fraud claim).

Thus, this Court agrees with the magistrate

judge that Plaintiff’s Proposed Complaint fails to allege
sufficient facts to state a fraud claim.

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Further, even if this Court assumed, for the sake of
argument, that Plaintiff’s Proposed Complaint does allege the
elements of the fraud claim, it is important that Plaintiff
alleges fraud in the context of his wrongful termination claim;
he does not merely allege a fraudulent misrepresentation claim.
See Proposed Complaint at ¶ 4.2.

As previously discussed,

Plaintiff’s common law wrongful termination claims – such as this
fraud-based claim – are preempted by § 301 of the LMRA.

Thus,

even if the Proposed Complaint alleges all of the elements of
fraud, the “[w]rongful termination by way of fraud” claim would
be preempted.
This Court therefore DENIES Plaintiff’s Objections as
to his arguments regarding the fraud claim, and AFFIRMS the
magistrate judge’s conclusion that Plaintiff’s “[w]rongful
termination by way of fraud” claim is futile.
VI.

Summary
This Court has denied all of the arguments in the

Objections.

The arguments that this Court has addressed are the

primary arguments that Plaintiff raises in the Objections.

To

the extent that Plaintiff raises other arguments in the
Objections that this Court has not specifically addressed in this
Order, this Court also REJECTS those arguments.
Finally, this Court notes that, on June 7, 2016, the
magistrate judge issued an entering order (“6/7/16 EO”) allowing

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the parties to submit additional briefing addressing, among other
things, whether the Proposed Complaint “states a claim upon which
relief can be granted against any of the Defendants under the Age
Discrimination in Employment Act [(“ADEA”)], 29 U.S.C. § 621 et
seq.”

[Dkt. no. 67.]

In his June 17, 2016 response to the

6/7/16 EO, Plaintiff stated, “I believe that it is clear and
obviously approbate to anchor my claim on the foundation of the
Age Discrimination Act.”

[Dkt. no. 75 at 6.]

The magistrate

judge, however, decided that Plaintiff’s response did not
establish that the Proposed Complaint alleged an ADEA age
discrimination claim, and the magistrate judge did not address
age discrimination in the F&R.7

Because Plaintiff did not raise

the issue in his Objections, this Court makes no findings or
conclusions regarding whether: 1) the Proposed Complaint includes
an ADEA claim; and 2) if it does, whether the claim is futile.
This Court CONCLUDES that Plaintiff’s Objections do not
contain any ground that warrants rejection of the magistrate
judge’s F&R.

7

Plaintiff mentions “age discrimination,” but not in the
context of an ADEA claim. See Objections at 5 (“the clock on
this ‘Hybrid action” [sic] should start when the EEOC issued my
Right To Sue letter, because every thing in my complaint falls
under the umbrella of the age discrimination charge that my suit
is founded on”); id. (“Hybrid action falls under the umbrella of
EEOC age discrimination right to sue letter”).
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CONCLUSION
On the basis of the foregoing, Plaintiff’s objections
to the magistrate judge’s July 29, 2016 Findings and
Recommendation to Deny Plaintiff Larry Bosworth’s Motion for
Leave to File a Second Amended Complaint, which Plaintiff filed
on August 29, 2016, are HEREBY DENIED.

The magistrate judge’s

F&R is HEREBY ADOPTED in its entirety.

Plaintiff’s Motion for

Leave to File a Second Amended Complaint, filed April 29, 2016,
is therefore DENIED.
There being no claims remaining in this case, this
Court DIRECTS the Clerk’s Office to enter final judgment and
close the case on November 21, 2016, unless Plaintiff files a
motion for reconsideration of this Order by November 17, 2016.
The final judgment shall be in favor of Defendants pursuant to
this Court’s March 21, 2016 order and the instant Order.
IT IS SO ORDERED.

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DATED AT HONOLULU, HAWAII, October 31, 2016.

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

LARRY BOSWORTH VS. FOSS MARITIME, ET AL; CIVIL 15-00285 LEK-KJM;
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

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