Bosworth v. Maritime

• Decision Date: 21 March 2016
• Docket Number: CIVIL 15-00285 LEK-BMK
• Parties: LARRY NEAL BOSWORTH, Plaintiff, v. FOSS MARITIME, INLAND BOATMAN'S UNION, RODNEY ALLEN MYERS, WHITNEY (WHIT) OLSON, Defendants.
• Court: U.S. District Court — District of Hawaii

LARRY NEAL BOSWORTH, Plaintiff, v. FOSS MARITIME, INLAND BOATMAN'S UNION,RODNEY ALLEN MYERS, WHITNEY (WHIT) OLSON, Defendants.

CIVIL 15-00285 LEK-BMK

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

March 21, 2016

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"). [Dkt. no. 6.] 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. [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"). [Dkt. no. 25.] 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 todismiss 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." Rhodes v.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 the10/15/15 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. See, e.g., Eldridgev. 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 7/2 8/15 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. Factualallegations 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....