Ventress v. Japan Airlines
| Decision Date | 30 April 2010 |
| Docket Number | 08-16122.,No. 08-15731,08-15731 |
| Parties | Martin VENTRESS, Plaintiff-Appellant, v. JAPAN AIRLINES; Jalways Co., Ltd.; Hawaii Aviation Contract Services, Inc., Defendants-Appellees. Martin Ventress, Plaintiff-Appellant, v. Japan Airlines; Jalways Co., Ltd.; Hawaii Aviation Contract Services, Inc., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
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Martin Ventress, Pro se, Houston, TX, for the plaintiff-appellant.
Andrew L. Pepper, Carlsmith Ball, Honolulu, HI, for defendants-appellees Japan Airlines and Jalways, Co.
Carl Osaki, Honolulu, HI, for defendant-appellee Hawaii Aviation Contract Services.
Before ALFRED T. GOODWIN, ROBERT R. BEEZER and RICHARD C. TALLMAN, Circuit Judges.
This pro se appeal tenders the only legal questions that remain in flight engineer Martin Ventress's dispute with Japan Airlines and its subsidiary Jalways Co., Ltd. (collectively, "JAL") and Hawaii Aviation Contract Services, Inc. ("HACS") following the remand to the District of Hawaii in his first appeal to this court. See Ventress v. Japan Airlines, 486 F.3d 1111 (9th Cir. 2007) (Ventress I).
In Ventress I, we held that the Friendship, Commerce, and Navigation Treaty, U.S.-Japan, April 2, 1953, 4 U.S.T.2063, does not preempt California's whistle blower protection laws, and remanded the state-law claims to the District of Hawaii for further proceedings. Ventress I, 486 F.3d at 1118. We also affirmed venue in Hawaii, dismissed Ventress's interlocutory appeal of an order compelling arbitration of his claims against HACS, and disposed of other then-pending matters that are no longer in controversy. Id. at 1119.
In August 2007, Ventress and HACS concluded arbitration, resulting in an award that denied Ventress's claim for wrongful termination and ordered him to pay costs to HACS. On March 20, 2008, the district court denied Ventress's motion to vacate the award and granted HACS's motion to confirm it. Meanwhile, the district court issued an order on November 28, 2007, denying Ventress's motion to amend the complaint to state claims under Hawaii and federal law.
The district court severed Ventress's case from that of pilot Jack Crawford and severed HACS as a defendant. On March 14, 2008, the court denied Ventress's motion to transfer venue back to the Central District of California, holding that the doctrine of the law of the case prevented it from reconsidering an issue decided and affirmed on appeal by this court.
JAL moved for judgment on the pleadings, asserting complete federal preemption by the Federal Airline Deregulation Act of 1978, 49 U.S.C. § 41713 ("ADA"), as amended by the Whistleblower Protection Program, 49 U.S.C. § 42121 ("WPP"). The district court granted that motion. The court held that the ADA, as amended by the WPP, barred Ventress's state-law whistle blowing and public policy claims. Noting that this circuit had yet to address ADA preemption of state whistle blower protection laws, the district court adopted the Eighth Circuit's reasoning that "the WPP makes it unmistakable that such claims are pre-empted." Botz v. Omni Air Int'l, 286 F.3d 488, 498 (8th Cir.2002).
Ventress now appeals the judgments in favor of both HACS and JAL. His appeal raises four questions: whether the district court (1) erred in granting HACS's motion to confirm and denying Ventress's motion to vacate the arbitration award, (2) abused its discretion in dismissing Ventress's motion for transfer of venue, (3) abused its discretion in denying Ventress's motion to amend the complaint, and (4) erred in dismissing Ventress's claims against JAL based on complete federal preemption.
Ventress contends that the district court erred in granting HACS's motion to confirm and denying Ventress's motion to vacate the arbitration award because the arbitrator was biased against him and failed to follow the law. On de novo review, Coutee v. Barington Capital Group, L.P., 336 F.3d 1128, 1132 (9th Cir.2003), we affirm.
The Hawaii Supreme Court has noted that "because of the legislative policy to encourage arbitration and thereby discourage litigation, judicial review of an arbitration award is confined to `the strictest possible limits.'" Gadd v. Kelley, 66 Haw. 431, 667 P.2d 251, 258 (1983) (quoting Mars Constructors, Inc. v. Tropical Enters., Ltd., 51 Haw. 332, 460 P.2d 317, 319 (1969)). A court may therefore vacate an arbitration award only for the limited reasons specified by statute. See id. One such reason is "evident partiality by an arbitrator appointed as a neutral arbitrator." Haw.Rev.Stat. § 658A-23(a)(2)(A). "Evident partiality" may exist where there is actual bias on the part of the arbitrator, or where undisclosed facts demonstrate a reasonable impression of partiality. See Daiichi Hawai'i Real Estate Corp. v. Lichter, 103 Hawai`i 325, 82 P.3d 411, 425-26 (2003). "`The burden of proving facts which would establish a reasonable impression of partiality rests squarely on the party challenging the award.'" Id. at 425 (quoting Sheet Metal Workers Int'l Ass'n Local Union 420 v. Kinney Air Conditioning Co., 756 F.2d 742, 745 (9th Cir.1985)).
Hawaii law also allows a court to vacate an arbitration award if "an arbitrator exceeded the arbitrator's powers." Haw.Rev.Stat. § 658A-23(a)(4). An arbitrator does not exceed the arbitrator's powers by misunderstanding or incorrectly applying the law. See Tatibouet v. Ellsworth, 99 Hawai`i 226, 54 P.3d 397, 407 (2002). Vacatur may be proper, however, "where the parties provide proof that the arbitrators intentionally and plainly disregarded" the relevant substantive law. Id. at 411.
Ventress argues that the arbitrator was biased against him because he had previously filed a motion to disqualify the arbitrator and because he is African American. Ventress claims that the arbitrator is a trustee for the Office of Hawaiian Affairs, which Ventress believes demonstrates an ideology of "rational nationalism;" is a graduate of the Kamehameha School, which offers preference to Native Hawaiian applicants and from which HACS's owner also graduated; and belongs to the Mormon Church, which Ventress claims "had a long-standing reputation of racial bias against blacks." These affiliations, he asserts, establish "evident partiality" by the arbitrator. The district court, however, correctly concluded that Ventress "has offered only bald allegations of partiality without any, much less persuasive, evidence to support these claims."
In the absence of evidence of actual bias, the filing and denial of a motion to disqualify an arbitrator in one arbitration does not establish bias in a subsequent arbitration. Moreover, the arbitrator's supposed affiliations, and Ventress's unsupported assertions about their ideologies, do not establish bias. Nor does the fact that the arbitrator and HACS's owner graduated from the same school, apparently some thirteen years apart, establish bias or a conflict of interest.
Ventress also argues that the arbitrator allowed HACS to serve procedurally improper subpoenas, permitted HACS to submit an untimely supplement to its final arbitration argument, and denied Ventress an alleged right to be represented by a non-attorney. As the district court correctly noted, however, even assuming that the arbitrator erred in applying the law, Ventress has not shown that he "intentionally and plainly disregarded" the law. We therefore affirm confirmation of the arbitration award and denial of the motion to vacate it.
Ventress argues that the district court erred in denying his motion to transfer venue from the District of Hawaii to the Central District of California because he thinks racial and residential factors make California a better venue for him. These are the same arguments that Ventress made in Ventress I, where we held that the district court's decision to transfer venue was not an abuse of discretion. 486 F.3d at 1118-19. The district court correctly concluded that it could not reconsider that question. See City of L.A. Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882, 888-89 (9th Cir.2001).
Ventress also argues that the district court erred in denying his motion to amend the complaint to substitute Hawaii claims for California claims and add a federal claim. We review for abuse of discretion the district court's denial of a motion to amend a complaint. Chappel v. Lab. Corp. of America, 232 F.3d 719, 725 (9th Cir.2000). "A district court acts within its discretion to deny leave to amend when amendment would be futile, when it would cause undue prejudice to the defendant, or when it is sought in bad faith." Id. at 725-26.
We conclude that the district court acted within its discretion. As to the state-law claims, it concluded that, because venue was transferred under 28 U.S.C. § 1404(a), the substantive law of the transferor state—California—applies. See Muldoon v. Tropitone Furniture Co., 1 F.3d 964, 965 (9th Cir.1993). It also noted that Ventress and Crawford chose to bring only California state-law claims, argued strenuously that California's interests were paramount, waited nearly a year—until a substantive motion was pending against their complaint—before attempting to amend it, and did not show that the law of the two states was different on the merits. As to the federal claim, the WPP provides no private right of action, Williams v. United Airlines, Inc., 500 F.3d 1019, 1023-24 (9th Cir.2007), and Ventress provided no evidence that he had exhausted the prescribed administrative remedies. We therefore hold that there was no error in the denial of the motion to amend.
Finally, Ventress contends that the district court erred in granting JAL's motion for judgment on the pleadings on the basis of complete federal preemption. Ventress argues that the ADA, as amended...
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