Chung v. McCabe Hamilton & Renny Co., Ltd.

Citation128 P.3d 833
Decision Date17 February 2006
Docket NumberNo. 25458.,25458.
PartiesDean Kawailani CHUNG, Plaintiff-Appellant, v. McCABE HAMILTON & RENNY COMPANY, LTD., a Hawai`i corporation, Kyle Soares, an individual, John A. Dias, an individual, Henry R.K. Lee, an individual, Dwight Shaw, an individual, Robert T. Guard, an individual, Kraig M. Kennedy, an individual, Bob M. Bee, an individual, and Matt B. Guard, an individual, Kini KalaiwaFA, AN INDIVIDUAL, ANDREW L. PEPPER, AN INDIVIDUAL, MARR HIPP JONES & PEPPER, A HAWAI`I PARTNERSHIP, DEFENDANTS-APPELLEES, and Does 1-50, Defendants, and Related Counterclaims.
CourtSupreme Court of Hawai'i

Dane L. Miller and Wilma Sur, Honolulu (Miller Tokuyama Kralik & Sur LLP), on the briefs, for plaintiff-appellant.

John T. Komeiji, Honolulu, Michael A. Lorusso and Brian A. Kang (Watanabe Ing Kawashima & Komeiji LLP), on the briefs, for defendants-appellees.

MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, JJ. and Circuit Judge AUGUST, in Place of DUFFY, J., Recused.

Opinion of the Court by ACOBA, J.

We hold that (1) Defendants-Appellees Marr, Hipp, Jones, & Pepper (MHJP) and Andrew L. Pepper [collectively, Appellees], as attorneys for earlier and dismissed employer-defendants, may raise, as agents of their employers, the doctrine of preemption under the National Labor Relations Act (NLRA) on a summary judgment motion; (2) the claims of Plaintiff-Appellant Dean Kawailani Chung (Appellant) against Appellees for abuse of process and malicious prosecution, as well as the derivative claims of conspiracy and aiding and abetting related to these torts, are preempted under this court's holding in Gouveia v. Napili-Kai, Ltd., 65 Haw. 189, 649 P.2d 1119 (1982); (3) Appellant's claims for intentional infliction of emotional distress (IIED) and false light invasion of privacy are not preempted under this court's holding in Briggs v. Hotel Corp. of the Pac., Inc., 73 Haw. 276, 831 P.2d 1335 (1992) and Gouveia; (4) Appellant's claim against Appellees for defamation and the derivative claims of conspiracy and aiding and abetting for this tort are not preempted under Linn v. United Plant Guard Workers of Am., Local 114, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966); and (5) Appellant's argument that the application of the preemption doctrine violates his Seventh Amendment right to a jury trial was not properly raised and is therefore waived. Applying these holdings, we affirm in part and and vacate in part the October 23, 2002 final judgment of the circuit court of the first circuit1 (the court) granting Appellees' motion for summary judgment and dismissing Appellant's consolidated amended complaint (the CAC) for lack of subject matter jurisdiction (the order), and remand this case for further proceedings in accordance with this opinion.

I.

The decision of the Intermediate Court of Appeals (the ICA), McCabe Hamilton & Renny Co. v. Chung, 98 Hawai`i 107, 43 P.3d 244 (App.2002) [hereinafter McCabe], provides a detailed description of the underlying dispute between Appellant and his co-workers at McCabe Hamilton & Renny, Co. (McCabe). Only the following condensed statement of the factual background is pertinent to this appeal.

A.

On January 7, 2000, following a confrontation between Appellant and co-workers Kyle Soares (Soares) and John Dias (Dias), McCabe, Soares, and Dias [collectively, the first TRO petitioners] filed an ex parte motion for a TRO in a special proceeding, S.P. No. 00-1-0010 (first TRO action). The first TRO petitioners were represented by Appellees. The court issued four TROs against Appellant and converted the special proceeding into a regular civil case. While the first TRO action was pending, McCabe fired Appellant.

On February 8, 2000, Appellant filed a complaint in Civil No. 00-01-0444 (case 0444) against McCabe, four of its executives — Robert T. Guard, Kraig M. Kennedy, Bob M. Bee, and Matt B. Guard — and four of Appellant's co-workers — Soares, Dias, Henry R.K. Lee, and Dwight Shaw [collectively, the first McCabe defendants], claiming, inter alia, abuse of process and defamation.

On March 14, 2000, McCabe, Soares, Dias, and Earl Kini Kalaiwa`a (Kalaiwa`a) [collectively, the second TRO petitioners] filed a complaint and a renewed ex parte motion for TRO (second TRO action) against Appellant, the latter being granted by the court. On March 23, 2000, an evidentiary hearing was held on the second TRO action and the second TRO petitioners' motion for a preliminary injunction. The court denied the motion and dismissed the action without prejudice on March 29, 2000.

On June 2, 2000, Appellant filed a second lawsuit in Civil No. 00-01-1771 (case 1771) against McCabe, Soares, Dias, and Kalaiwa`a [collectively, the second McCabe defendants], asserting wrongful termination in violation of Hawai`i Revised Statutes (HRS) § 378-2 (Supp.1999), malicious prosecution of the second TRO action, abuse of process, and related claims.

On June 6, 2000, the International Longshore and Warehouse Union, Local 142, AFL-CIO (the ILWU) filed, on behalf of Appellant, a charge against McCabe with the National Labor Relations Board (NLRB).

The NLRB charge alleged that the state court actions brought against Appellant violated Section 8(a)(1),2 29 U.S.C. § 158, of the National Labor Relations Act (NLRA) because McCabe filed two lawsuits in retaliation for a labor dispute initiated by Appellant while he was engaged in activities protected by Section 7,3 29 U.S.C. § 157, of the NLRA. Because McCabe lost its complaint on the merits and voluntarily sought a dismissal, the ILWU requested that the NLRB find that the filing of the lawsuits against Appellant constituted an unfair labor practice. The ILWU also requested that McCabe be required to reimburse the Union's and Appellant's attorneys their fees and costs incurred as a result of the two lawsuits. It appears that the NLRB charge was withdrawn.4

B.

The defendants removed both of Appellant's state cases, case 0444 and case 1771, to federal court, asserting federal jurisdiction pursuant to section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185 (1994).5 By order dated April 5, 2001, the United States District Court for the District of Hawai`i (the district court)6 granted, in part, the first and second McCabe defendants' motions for summary judgment. Both cases were decided under LMRA section 301, 29 U.S.C. § 185, referred to as "section 301 preemption."

According to the district court, LMRA section 301 "preempt[s] state law claims between an employee and employer when those claims require the court to interpret the terms of collective bargaining agreements." It was ruled that Appellant's claim for tortious interference with contractual relations was preempted under section 301. Consequently, the district court dismissed the claim. The district court determined that the claims for IIED, conspiracy, and aiding and abetting were preempted in part, and dismissed the claims with some reservation. However, it was decided that Appellant's claims for abuse of process, defamation, false light invasion of privacy, violation of public policy in connection with a wrongful termination, and punitive damages were not preempted under section 301. These claims were remanded to state court.

The district court's decision was based entirely upon section 301 preemption. According to the district court, the McCabe defendants' alternative argument, that is, that Appellant's claims were preempted under the doctrine announced in San Diego Bldg. Trades Council, Millmen's Union, Local 2020 v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959), was not addressed because Garmon did "not provide a basis for subject matter jurisdiction in the federal courts."7 Accordingly, the district court deferred to the "state court [to] properly address [d]efendants' arguments with respect to . . . Garmon preemption."8

II.

Upon remand to the state court, Appellant filed a motion to file the CAC. The court granted the motion and on May 8, 2001, Appellant filed the CAC, asserting abuse of process, malicious prosecution, defamation, false light invasion of privacy, IIED, conspiracy, aiding and abetting one another in the aforesaid causes of action, violations of HRS § 378-2, negligent supervision, negligent infliction of emotional distress, and negligence. Appellant also joined Appellees as new parties.

On June 5, 2001, Appellees filed a motion to dismiss the CAC for lack of jurisdiction or, in the alternative, for summary judgment, arguing that (1) Appellant's anti-union theory involved protected rights under section 7 of the NLRA, 29 U.S.C. § 157, and unfair labor practices under section 8 of the NLRA, 29 U.S.C. § 158, (2) because Appellant alleged Appellees committed an unfair labor practice, his remedies lay with the NLRB and not the court, and (3) Garmon preemption applied to Appellees as "agents" of Appellant's employer, McCabe.

At the July 20, 2001 hearing on the motion,9 the court asked Appellant's attorney if "union busting [was] behind the entire series of transactions and actions brought against [Appellant] that gave rise to this particular lawsuit[.]" Counsel for Appellant responded that on February 8, 2000, the date of Appellant's original complaint, Appellant was unaware of incidents that would suggest that something other than "union busting" was behind the transactions:

[Appellant] did not know that Andy Pepper had talked to undercover cops on the waterfront about something so secret concerning [Appellant] that Mr. Pepper is more afraid of the [Honolulu Police Department (HPD) than he is of [Appellant]. [Appellant] did not know that Mr. Pepper was gonna accuse him of destroying his utility box and of stalking him. So all of these things come to fruition afterwards. We don't get any discovery until we're back in this court, when we know a[sic] about Mr. Pepper's conversations with undercover cops, when we know about now [sic] Mr. Guard...

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