Navaja v. Honolulu Academy of Arts et al

Filing 21

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS VERIFIABLE QUI TAM COMPLAINT FOR EMPLOYMENT FRAUD, HARASSMENT, DISCRIMINATION, RETROACTIVE BACK PAY, FRAUD re 18 Motion to Dismiss for Failure to State a Claim . Signed by JUDGE LESLIE E. KOBAYASHI on 02/29/2016. Defendants' Motion to Dismiss Verifiable Qui Tam Complaint for Employment Fraud, Harassment, Discrimination, Retroactive Back Pay, Fraud, filed January 12, 2 016, is HEREBY GRANTED IN PART AND DENIED IN PART. Plaintiff must file his amended complaint, consistent with the terms of this Order, by no later than April 12, 2016 (eps )CERTIFICATE OF SERVICEPart icipants 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 March 1, 2016

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
)
Plaintiff,
)
)
vs.
)
)
)
HONOLULU ACADEMY OF ARTS,
STEPHAN JOST DIRECTOR,
)
CHRIS ATHERALL,
)
LINDA FERRARA, JAME HUSBAND, )
)
Defendants.
)
_____________________________ )
JAMES J. NAVAJA,

CIVIL 15-00344 LEK-RLP

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION TO DISMISS VERIFIABLE QUI TAM COMPLAINT FOR EMPLOYMENT
FRAUD, HARASSMENT, DISCRIMINATION, RETROACTIVE BACK PAY, FRAUD
Before the Court is Defendants Honolulu Academy of Arts
(“HAA”), Stephan Jost, Chris Atherall, Linda Ferrara, and
Jame Husband’s (“Defendants”) Motion to Dismiss Verifiable Qui
Tam Complaint for Employment Fraud, Harassment, Discrimination,
Retroactive Back Pay, Fraud (“Motion”), filed on January 12,
2016.

[Dkt. no. 18.]

Pro se Plaintiff James J. Navaja

(“Plaintiff”) has not filed any response to the Motion.

On

February 11, 2016, this Court issued an entering order finding
this matter 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”).

[Dkt. no. 20.]

After careful consideration of the

Motion and the relevant legal authority, Defendants’ Motion is

HEREBY GRANTED IN PART AND DENIED IN PART for the reasons set
forth below.
BACKGROUND
On August 26, 2015, Plaintiff filed his “Verifiable Qui
Tam Complaint for Employment Discrimination, Harassment
Retroactive Back Pay, Fraud” (“Complaint”).

Plaintiff and all of

the individual Defendants are HAA employees: Plaintiff is a
Supervisor H-5; Jost is the Director; Atherall is a Supervisor H2, Chief of Security; Ferrara is the Human Resource Director; and
Husband is a security officer.

[Complaint at ¶¶ 3, 5-8.]

Plaintiff asserts that he is a full-time HAA employee
and is entitled to full benefits.

[Id. at ¶ 13.]

According to

the Complaint, on or about May 2014, Plaintiff discovered that,
in June and August 2006, he “worked 9 hours and was only paid for
8.”

[Id. at ¶¶ 10-11.]

In addition, when he went into the

company’s payroll management system, he discovered that the
records for that period were missing.

Plaintiff alleges that

Defendants deprived him of overtime pay for that period through
fraud.

Although the employee handbook states that a pay period

starts on Sunday and ends on a Saturday, Plaintiff argues that
the company’s earnings statement shows that the actual pay
periods are inconsistent the handbook.

[Id. at ¶¶ 11-12.]

He

alleges that the pay periods “mov[e] around, skirting the 40 hour
work week, depriving the plaintiff of overtime, by shifting the

2

pay period over to the next pay period, thereby losing those
hours of overtime pay.”

[Id. at ¶ 12.]

Plaintiff also states that he “was allegedly shorted of
most of his holiday pay by “one hour and a half (1.5),” i.e. he
was only “paid for 6.5 hours.”

[Id. at ¶ 13.]

He apparently

questioned Ferrara about it, but she did not give him an answer.
[Id. at ¶ 14.]
Plaintiff states that there was a June 18, 2011
memorandum directive from Jost regarding a mandated forty-hour
work week for all HAA departments (“Forty-Hour Directive”).
According to Plaintiff, Atherall received the directive, but did
not make the required adjustments for the security department.
Plaintiff and two other supervisors raised questions about the
Forty-Hour Directive, but they were told that it did not apply to
their department.

Plaintiff, however, argues that there was no

documentation to support the alleged exception.

In April 2013,

Plaintiff raised the issue again with Mike Chock, an Assistant
Chief of Security, and Chock was surprised that Plaintiff and
others in Atherall’s department never received the mandated
adjustment.
about it.

Chock told Plaintiff that he would talk to Atherall

[Id. at ¶¶ 15-20.]
Plaintiff states that, on April 10, 2013, he received a

notice from Atherall stating that Plaintiff’s forty-hour
adjustment would be effective May 1, 2013.

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Atherall verbally

informed him that HAA could not “pay back all the lost hours for
the past years.”

[Id. at ¶ 21.]

Plaintiff states that HAA job

descriptions mandate a forty-hour work week, and there was a
July 15, 2005 memorandum that “claim[ed] a 40 hour work week” and
was posted on the bulletin board.

[Id. at ¶ 22.]

Atherall’s

statement troubled Plaintiff, and, on February 10, 2014,
Plaintiff submitted an internal complaint to Atherall regarding
the hours owed to him from July 15, 2005 to May 1, 2013.

The

internal complaint also addressed eight other security staff
whose pay was allegedly affected in the same way.

Plaintiff

argues that the failure to pay for these uncompensated hours
constitutes fraud.

[Id.]

He also argues that Defendants

violated the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201,
et seq., because, in addition to failing to compensate him for a
forty-hour work week, they also avoided paying him overtime and
holiday rates.

[Id. at pg. 1.]

HAA Deputy Director Wong replied later that day and
informed Plaintiff that she would hold a meeting with Atherall
and Ferrara the next day.

On February 13, 2014, Plaintiff met

with Ferrara, who informed him that the forty-hour work week was
for salaried employees.

Plaintiff asked why they were not given

the forty-hour adjustment until May 1, 2013, while the Forty-Hour
Directive gave a deadline of July 1, 2011.

Ferrara told him that

Wong decided to make the adjustment effective on May 1, 2013 for

4

security staff working less than forty hours per week.

Ferrara

said that Plaintiff’s internal complaint was unfounded, and HAA
could not give back pay for hours that employees did not work.
Plaintiff argues that, during the meeting, Ferrara would not
address the fact that the Forty-Hour Directive mandated the
adjustment for all staff and was not limited to particular
positions.

[Id. at ¶¶ 23-26.]
At some point after the meeting, Plaintiff was informed

that he was protected by the whistle blower protection policy.
Ferrara told him that the next step in the internal complaint
process was before Jost, but Jost never met with Plaintiff to
address his internal complaint.

Plaintiffs filed the instant

action because he is not satisfied with the outcome of his
internal complaint.

[Id. at ¶¶ 27-28.]

Plaintiff alleges that

Jost and Atherall violated the Forty-Hour Directive by: failing
to make adjustments for the missing hours; and failing to pay
overtime compensation that he could have earned if he had been
working a forty-hour week.

[Id. at ¶ 29.]

He alleges that he is

“still suffering the financial loss in retroactive accrual of
back pay, with interest, work hours, overtime, sick leave,
vacation pay, prospectively, with interest,” and he argues that
he would not have suffered these losses if HAA had honored the
Forty-Hour Directive.

[Id. at ¶ 28.]

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Plaintiff also alleges that he was “subjected to
discrimination/fraud” in that he was assigned to work at special
events without adequate compensation.

[Id. at ¶ 30.]

According

to Plaintiff, Defendants conspired to avoid paying night
differential compensation except to favored HAA employees.
at ¶ 31.]

[Id.

Plaintiff also alleges that, on March 10, 2014,

Husband accosted him in the security office, yelling at him and
bullying him for twenty minutes.
harassment and bullying.

Plaintiff cited Husband for

At the time of that incident, Husband

was allegedly living at Atherall’s apartment.
the disciplinary report to Atherall.

Plaintiff provided

Plaintiff emphasizes that

the report form includes a provision stating that: 1) an employee
or volunteer filing a internal complaint would be provided with a
summary of the findings of the investigation; and 2) if the
employee or volunteer reported the allegedly unlawful activity,
policy, or practice within a reasonable time to allow HAA the
reasonable opportunity to investigate and correct the situation,
HAA would not retaliate against him.

Plaintiff alleges that

Atherall did not comply with HAA policy in dealing with his
internal complaint.

[Id. at ¶¶ 33-37.]

Plaintiff states that this action “is a Qui tam, fraud
suit, under 31 U.S.C. §§ 3729-3733, and [a] civil rights case.”
[Id. at pg. 1.]

The Complaint alleges the following claims:

Defendants violated federal and state labor laws by denying

6

Plaintiff pay for hours he worked and by denying him benefits
(“Count I”); [id. at ¶¶ 41-43;] Defendants’ denial of his pay and
benefits was fraudulent and discriminatory (“Count II”); [id. at
¶¶ 44-45;] a claim that may be a breach of contract claim based
on the alleged failure to comply with HAA policies (“Count III”);
[id. at ¶¶ 46-47;] and a claim for punitive damages based on
Defendants’ allegedly wanton and malicious conduct (“Count IV”)
[id. at ¶ 48].

Plaintiff prays for the following relief: a

declaratory judgment regarding Defendants’ liability; an order
requiring the individual Defendants to resign, without pension or
severance benefits; an injunction prohibiting retaliation against
Plaintiff and requiring Defendants to produce the policy at issue
in this case; an award of back pay and benefits, with interest;
compensatory damages of $1,500,000.00 against each of the
individual Defendants, plus treble damages; $10,000,000.00 in
damages against HAA, plus treble damages; punitive damages of
$1,500,000.00 against each of the individual Defendants, and
$10,000,000.00 against HAA; and costs of suit.

[Id. at ¶¶ 49-

71.]
In the instant Motion, Defendants argue that: 1) the
action fails as a qui tam action because such actions enforce
liability for certain acts and claims perpetrated against the
federal government; 2) even if Plaintiff could bring a qui tam
action for false claims, he failed to comply with the statutory

7

requirements for qui tam actions by a private person; 3) to the
extent that Plaintiff alleges discrimination, harassment, and
retaliation claims under Title VII of the Civil Rights Act of
1964 (“Title VII”) or Haw. Rev. Stat. Chapter 378, he failed to
exhaust his administrative remedies; and Plaintiff’s FLSA claims
are barred by the statute of limitations.

Defendants ask this

Court to dismiss Plaintiff’s Complaint with prejudice.
DISCUSSION
I.

Qui Tam Action
Plaintiff states that this is a qui tam action pursuant

to the False Claims Act (“FCA”), 31 U.S.C. §§ 3729-33.

The FCA

imposes liability on “any person who” commits or conspires to
commit the fraudulent acts described, including: “knowingly
present[ing], or caus[ing] to be presented, a false or fraudulent
claim for payment or approval”; or “knowingly mak[ing], us[ing],
or caus[ing] to be made or used, a false record or statement
material to a false or fraudulent claim.”
§ 3729(a)(1)(A)-(B).

31 U.S.C.

However, the FCA addresses fraudulent acts

committed against the federal government.

Section 3729(a)(1)

states that the person who is liable for the fraudulent acts
is liable to the United States Government for a
civil penalty of not less than $5,000 and not more
than $10,000, as adjusted by the Federal Civil
Penalties Inflation Adjustment Act of 1990 (28
U.S.C. 2461 note; Public Law 104-4101), plus 3
times the amount of damages which the Government
sustains because of the act of that person.
8

“The FCA may be enforced not just through litigation brought by
the Government itself, but also through civil qui tam actions
that are filed by private parties, called relators, ‘in the name
of the Government.’”

Kellogg Brown & Root Servs., Inc. v. United

States, ex rel. Carter, 135 S. Ct. 1970, 1973 (2015) (quoting 31
U.S.C. § 3730(b)).
Plaintiff has not brought this action on behalf of the
federal government, nor does the Complaint allege any of the acts
described in § 3729(a)(1).

In addition, Plaintiff did not follow

the procedures for qui tam actions set forth in § 3730(b).

For

example, § 3730(b)(2) states:
A copy of the [qui tam] complaint and written
disclosure of substantially all material evidence
and information the person possesses shall be
served on the Government pursuant to Rule 4(d)(4)
of the Federal Rules of Civil Procedure. The
complaint shall be filed in camera, shall remain
under seal for at least 60 days, and shall not be
served on the defendant until the court so orders.
The Government may elect to intervene and proceed
with the action within 60 days after it receives
both the complaint and the material evidence and
information.
(Footnote omitted.)
This Court therefore CONCLUDES that, to the extent
Plaintiff’s Complaint purports to be a qui tam action, it fails
to state a claim upon which relief can be granted.
Civ. P. 12(b)(6).

See Fed. R.

Further, this Court CONCLUDES that it is not

possible for Plaintiff to cure the defects in his qui tam claims.
See Sonoma Cty. Ass’n of Retired Emps. v. Sonoma Cty., 708 F.3d
9

1109, 1117-18 (9th Cir. 2013) (“As a general rule, dismissal
without leave to amend is improper unless it is clear . . . that
the complaint could not be saved by any amendment.” (brackets,
citation, and internal quotation marks omitted)).

This Court

therefore GRANTS Defendants’ Motion, insofar as Plaintiff’s qui
tam claims are DISMISSED WITH PREJUDICE.
II.

Harassment/Retaliation and Discrimination
Plaintiff alleges that he was harassed by Husband and

that Atherall did not comply with HAA policy in dealing with
Plaintiff’s disciplinary report about the incident.

He also

appears to allege that the failure to employ him for a forty-hour
work week constitutes harassment.

[Complaint at ¶¶ 32-40.]

Further, although it is not entirely clear, Plaintiff’s
references to the HAA anti-retaliation policy appear to indicate
that he contends the alleged harassment was in retaliation for
his internal complaint about the failure to comply with the
Forty-Hour Directive.

Plaintiff also alleges that Defendants

discriminated against him by: assigning him to special events and
failing to pay him overtime compensation; and failing to give him
a forty-hour work week in general.

[Id. at ¶¶ 30, 45.]

The

Complaint, however, does not state what legal authority Plaintiff
brings his harassment/retaliation claim and his discrimination
claim under.

10

In the instant Motion, Defendants argue that these
claims fail whether Plaintiff brings them under either under
Title VII or Haw. Rev. Stat. § 378-2.

To the extent that

Plaintiff brings his claims under Title VII, this district court
has recognized that:
A plaintiff seeking redress for a Title VII
claim in federal court must first exhaust her
administrative remedies by filing a timely Charge
with the [Equal Employment Opportunity Commission
(“EEOC”)]. 42 U.S.C. § 2000e–5(b); Vasquez v.
Cnty. of Los Angeles, 349 F.3d 634, 644 (9th Cir.
2003), as amended (Jan. 2, 2004). A Charge is
considered “filed” when the EEOC receives it.
Sanchez v. Pac. Powder Co., 147 F.3d 1097, 1099
(9th Cir. 1998). Failure to file a timely Charge
generally renders a court without subject matter
jurisdiction to adjudicate those claims which fall
outside the relevant filing deadline. Vasquez,
349 F.3d at 644.
Kim v. Coach, Inc., Civil No. 14-00574 HG-RLP, 2016 WL 544469, at
*5 (D. Hawai`i Feb. 9, 2016).

In addition, where

the person aggrieved has initially instituted
proceedings with a State or local agency with
authority to grant or seek relief from such
practice or to institute criminal proceedings with
respect thereto upon receiving notice thereof,
such charge shall be filed by or on behalf of the
person aggrieved within three hundred days after
the alleged unlawful employment practice occurred,
or within thirty days after receiving notice that
the State or local agency has terminated the
proceedings under the State or local law,
whichever is earlier, and a copy of such charge
shall be filed by the Commission with the State or
local agency.
42 U.S.C. § 2000e-5(e)(1).

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Section 378-2 also requires the exhaustion of
administrative remedies.

Decampo v. OS Rest. Servs., LLC, Civ.

No. 14-00092 ACK-BMK, 2014 WL 1691628, at *6 (D. Hawai`i Apr. 29,
2014) (“Hawaii law . . . requires a plaintiff to exhaust her
administrative remedies before bringing a claim for
discrimination pursuant to Hawaii Revised Statutes Chapter 378.”
(citing Haw. Rev. Stat. §§ 378-4, 368-11; You v. Longs Drugs
Stores California, LLC, 937 F. Supp. 2d 1237, 1248 (D. Haw.
2013))).
Plaintiff’s Complaint does not state that he exhausted
his administrative remedies.

Thus, whether he is asserting his

harassment/retaliation claim and his discrimination claim under
Title VII or Chapter 378, his claims fail as a matter of law.
This Court therefore GRANTS the Motion insofar as Plaintiff’s
harassment/retaliation claim and his discrimination claim are
DISMISSED.
Defendants argue that these claims should be dismissed
with prejudice.

Based on the existing record, it is difficult

for this Court to see how Plaintiff could amend his Complaint to
allege that he exhausted his administrative remedies.

However,

case law does not allow this Court to dismiss a claim with
prejudice because there is a low likelihood that the plaintiff
will be able to cure the defects by amendment.

To justify

dismissal with prejudice, this Court must conclude that the claim

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could not be saved by any amendment.
conclusion.

This Court cannot make that

This Court CONCLUDES that it is arguably possible

for Plaintiff to cure the defect in his harassment/retaliation
claim and his discrimination claim by alleging that he exhausted
his administrative remedies before he filed this action.

The

dismissal of these claims is therefore WITHOUT PREJUDICE.
This Court emphasizes that it makes no findings or
conclusions regarding Plaintiff’s harassment/retaliation claim
and his discrimination claim beyond the exhaustion issue.
III. FLSA Claim
Defendants next argue that Plaintiff’s FLSA claim
should be dismissed with prejudice because it is untimely.

This

Court has stated:
Generally, a two-year statute of limitations
applies to cases brought under the FLSA. 29
U.S.C. § 255(a). Where violations of the FLSA are
willful, however, a three-year statute of
limitations applies. Id. “A violation of the
FLSA is willful if the employer ‘knew or showed
reckless disregard for the matter of whether its
conduct was prohibited by the [FLSA].’” Chao v.
A–One Med. Servs., Inc., 346 F.3d 908 (9th Cir.
2003) (alteration in Chao) (some citations
omitted) (quoting McLaughlin [v. Richland Shoe
Co.], 486 U.S. [128,] 133, 108 S. Ct. 1677, 100 L.
Ed. 2d 115 (1988)); see also Solis v. Best Miracle
Corp., 709 F. Supp. 2d 843, 858 (C.D. Cal. 2010)
(citation omitted). The Ninth Circuit has stated,
“an employer need not knowingly have violated the
FLSA; rather, the three-year term can apply where
the employer disregarded the very ‘possibility’
that it was violating the statute . . . .”
Alvarez v. IBP, Inc., 339 F.3d 894, 908–09 (2003)
(citations omitted).
13

Perez v. Pac. Ohana Hostel Corp., Civil No. 13-00324 LEK, 2013 WL
6862684, at *5 (D. Hawai`i Dec. 27, 2013) (some alterations in
Perez).
This Court agrees with Defendants that Plaintiff’s FLSA
claims are based on the following factual allegations: the
failure to pay him for certain hours worked in June and August
2006; the failure to implement a forty-hour work week for all
employees in the HAA security department from July 15, 2005 to
May 1, 2013; and, as the result of the denial of a forty-hour
work week, the denial of overtime and holiday pay.

Plaintiff’s

Complaint does not include any allegations that would support a
finding that his FLSA claims arose out of a “willful violation.”
Thus, this Court concludes that the two-year limitations period
applies.
Plaintiff did not file his Complaint until August 26,
2015.

The portion of Plaintiff’s FLSA claims based on the denial

of pay for overtime hours worked in June and August 2006 is
clearly time barred, even if the three-year limitations period
applied.

Plaintiff was given a forty-hour work week effective

May 1, 2013.

Based on the allegations of the Complaint, he

presumably received any overtime and holiday pay that he was
entitled to after he began working a forty-hour week on May 1,
2013.

Plaintiff failed to file this action within two years

after that date.

This Court therefore CONCLUDES that these

14

portions of Plaintiff’s FLSA claim are time barred, and must be
dismissed.
This Court also CONCLUDES that it is not possible for
Plaintiff to cure the statute of limitations defect as to the
portion of his FLSA claim based on the denial of overtime pay for
hours worked in June and August 2006.

However, this Court

CONCLUDES that it is arguably possible for Plaintiff to amend his
Complaint to allege that the denial of a forty-hour work week and
the denial of overtime and holiday pay were willful violations,
triggering the three-year limitations period.

Thus, as to the

portions of Plaintiff’s FLSA claim based on the denial of a
forty-hour work week and the denial of overtime and holiday pay
that accrued within the three-year period before August 26, 2015,
this Court CONCLUDES that it is arguably possible to amend the
Complaint to cure the statute of limitations defect.

As to the

remaining portions of the FLSA claim regarding the denial of a
forty-hour work week and the denial of overtime and holiday pay,
this Court CONCLUDES that it is not possible for Plaintiff to
cure the defects in the claim by amendment.
The portions of Plaintiff’s FLSA claim regarding the
denial of a forty-hour work week and the denial of overtime and
holiday pay within three years of August 26, 205 are DISMISSED
WITHOUT PREJUDICE.

All other portions of the claim are DISMISSED

WITH PREJUDICE.

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IV.

Other Claims
This Court has stated that Count III may be a breach of

contract claim.

To the extent that it is unclear what claim

Count III alleges, this Court CONCLUDES that it fails to state a
plausible claim for relief.

See Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (“To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955
(2007))).

Because it is unclear what claim Count III alleges,

this Court cannot give Plaintiff specific notice of the claim’s
deficiencies.

See Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th

Cir. 1995) (“Unless 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.”).

However, this Court also cannot

conclude that it is absolutely clear that no amendment can cure
the defects in Count III.

This Court therefore DISMISSES

Count III WITHOUT PREJUDICE.
In addition, Count IV alleges a claim for punitive
damages.

This district court has stated: “A claim for punitive

damages is not an independent tort, but a remedy that is
incidental to another cause of action.”

Liberty Mut. Ins. Co. v.

Sumo-Nan LLC, Civil No. 14-00520 DKW-KSC, 2015 WL 2449480, at *6

16

(D. Hawai`i May 20, 2015) (some citations omitted) (citing Ross
v. Stouffer Hotel Co. (Hawai`i) Ltd., 879 P.2d 1037, 1049 (Haw.
1994); United States ex rel. Lockyer v. Haw. Pac. Health, 490 F.
Supp. 2d 1062, 1088–89 (D. Haw. 2007)).
DISMISSES Count IV WITH PREJUDICE.

This Court therefore

However, this Court

emphasizes that Plaintiff could still include a request for
punitive damages in his prayer for relief, if the substantive
claims alleged in his amended complaint would support such an
award.
Finally, this Court notes that, although there is no
numbered claim alleging a civil rights violation, Plaintiff
alleges that this is a “civil rights case,” and he includes a
request for attorneys’ fees and costs pursuant to 42 U.S.C.
§ 1988 within his prayer for relief.
¶ 71.]

[Complaint at pg. 1; id. at

Plaintiff may have intended to allege a claim pursuant to

42 U.S.C. § 1983.

However, because Plaintiff clearly presented

certain claims as numbered counts and did not include a civil
rights claim among them, this Court does not construe the
Complaint as alleging a § 1983 claim.

In order to provide

Plaintiff with guidance in preparing his amended complaint, this
Court also notes that: “To state a valid cause of action under 42
U.S.C. § 1983 for deprivation of a constitutional right,
Plaintiffs must demonstrate that the deprivation occurs ‘under
color of any statute, ordinance, regulation, custom, or usage of

17

any State[.]’”

See Yellen v. Hara, CIVIL NO. 15-00300 JMS-KSC,

2015 WL 8664200, at *12 (D. Hawai`i Dec. 10, 2015) (quoting Lugar
v. Edmondson Oil Co., Inc., 457 U.S. 922, 924 (1982)).

The

Complaint does not include any allegations that would support
finding that Defendants were acting under color of law in the
events at issue in this case.
V.

Summary and Leave to Amend
The Motion is GRANTED insofar as: all portions of

Plaintiff’s Complaint are HEREBY DISMISSED; the dismissal of
Plaintiff’s qui tam claims is WITH PREJUDICE; all portions of
Plaintiff’s FLSA claim, except the portions regarding the denial
of a forty-hour work week and the denial of overtime and holiday
pay within three years prior to August 26, 2015, are DISMISSED
WITH PREJUDICE; and Count IV – Plaintiff’s claim for punitive
damages – is DISMISSED WITH PREJUDICE.

The Motion is DENIED

insofar as the dismissal of all other portions of the Complaint
is WITHOUT PREJUDICE.
This Court ORDERS Plaintiff to file his amended
complaint by April 12, 2016.

This Court CAUTIONS Plaintiff that,

if he fails to file his amended complaint by April 12, 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
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claims in this case.

This Court also CAUTIONS Plaintiff that, as

to any claim that was dismissed without prejudice, if the amended
complaint fails to cure the defects identified in this Order, the
claim may be dismissed with prejudice.
CONCLUSION
On the basis of the foregoing, Defendants’ Motion to
Dismiss Verifiable Qui Tam Complaint for Employment Fraud,
Harassment, Discrimination, Retroactive Back Pay, Fraud, filed
January 12, 2016, is HEREBY GRANTED IN PART AND DENIED IN PART.
Plaintiff must file his amended complaint, consistent with the
terms of this Order, by no later than April 12, 2016.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, February 29, 2016.

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

JAMES J. NAVAJA VS. HONOLULU ACADEMY OF ARTS, ET AL; CIVIL 1500344 LEK-RLP; ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION TO DISMISS VERIFIABLE QUI TAM COMPLAINT FOR
EMPLOYMENT FRAUD, HARASSMENT, DISCRIMINATION, RETROACTIVE BACK
PAY, FRAUD
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