Petition for Writ of Certiorari — Tahara v. Matson Terminals, Inc.
Supreme Court brief1999
Ask Donna
What actually matters in this document.
Text
In The
Supreme Court of the United States
October Term, 1998
QUENTIN HIDEYUKI TAHARA,
Petitioner,
Vv.
MATSON TERMINALS, INC.;
MATSON NAVIGATION COMPANY, INC.;
McCABE, HAMILTON & RENNY CO. LTD.;
INTERNATIONAL LONGSHOREMEN AND
WAREHOUSEMEN’S UNION, LOCAL 142;
BRUCE GEORGE PERRY;
and HENRY KREUTZ, JR.,
Respondents.
Petition For A Writ of Certiorari To The
United States Court of Appeals
For The Ninth Circuit
PETITION FOR A WRIT OF CERTIORARI
JAY LAWRENCE FRIEDHEIM MARK G. McDOUGAL
(Counsel of Record) The Allred Law Firm
ADMIRALTY ADVOCATES 1911 Dunbarron Drive 820
Mililani Street, P.O. Box 3828 (39207)
Suite 503 Jackson, MS 39216
Honolulu, Hawaii 96813 Tel: (601) 713-1414
Tel: (808) 545-5454
Attorneys for Petitioner
i
QUESTIONS PRESENTED
Whether an association-in-fact enterprise under the
Racketeer Influenced and Corrupt Organizations Act,
18 U.S.C. §§1961-1968 ("RICO"), must have (1) a
hierarchical structure, and (2) an ascertainable
structure separate and apart from the structure inherent
in the conduct of the pattern of racketeering activity.
Assuming that the Ninth Circuit’s definition of an
association-in-fact enterprise under RICO is upheld,
does a plaintiff have the burden of pleading facts to
establish an association-in-fact enterprise as defined by
the Ninth Circuit given that Fed.R.Civ.Pro. 8 only
requires notice pleading?
Whether an individual in a witness protection program,
who voluntarily changes his residence, can
purposefully create diversity of citizenship jurisdiction
under 28 U.S.C. 1332.
Whether the 1984 amendments to the Longshore
Harborworkers’ Compensation Act 33 U.S.C. §§
904(A) & 905(A) abolished the borrowed servant
doctrine, as created by the Fifth Circuit.
ee ee eee ee
il
LIST OF PARTIES
Petitioner: Quentin Hideyuki Tahara
Respondents: 1. Matson Terminals, Inc.
2. McCabe, Hamilton & Renny, Co.,
Ltd.
3. Longshoremen’s and Warehousemen’s
Union, Local 142
4. Bruce George Perry
5. Henry Kreutz, Jr.
ili
TABLE OF CONTENTS
Page
QUESTION PRESENTED .....------++--++°: i
TABLE OF AUTHORITIES ......-----+++5:: Vv
OPINIONS BELOW ......----s-eecerereees 2
Es 2 ee ee ee eh een es 2
STATUTES INVOLVED ......----s-:2ee23%> 2
es oid Abs oe 40 8.0) 0-0 eee es 2
REASONS FOR GRANTING THE WRIT .....-..-.- 8
I. Certiorari Should Be Granted to Resolve
Conflicting Circuit Court Opinions On The
Requirements For An Association-In-Fact
Enterprise Under RICO .....------ +++ eee 0? 8
Il. Certiorari Should Be Granted as the
Federal Circuits are Split as to Pleading
Requirements for an Association-in-Fact
Enterprise Under RICO ....----------e+007: 10
Il. Certiorari Should Be Granted To Determine
If A Person In A Witness Protection Program Can
Change His Domicile To Create Diversity For
Purposes Of 28 U.S.C. § 1332 ....--- +--+ +++: 11
iv
TABLE OF CONTENTS - Continued
Page
IV. Certiorari Should Be Granted So This
Court May Determine Whether the 1984 Amendments
to the LHWCA Abolished the Borrowed Servant
Vv
TABLE OF AUTHORITIES
adark Sank anc ru:
808 F.2d 438, 441 (Sth cir.)
(per curiam), cert. denied,
483 U.S. 1032, 97 L.Ed.2d 780, 107
Se Ce a ow 0 She 6, oD 6 4s OO 9
oe. Os Oi, OF HD 2 oie a os 14
Bruton v. Shank, :
349 F.2d 630, 631 n.2 (8th Cir. 1965) ....... 12
Chang v. Chen,
80 F.3d 1293, 1295 (9th Cir. 1995)....... 9,10
Gaudet v. Exxon Corp.,
Se re ee Ce es APTI oe ce eee ee ee 18
H.J. Inc., et al. v. Northwestern Bell
492 U.S. 229, 109 S.Ct. 2893,
Oe ee Be CA vk es en eee eee 9
Janzen v. Goos,
Be Fe 42h Cee Cor, 1962) on es eo ee. 13
Lew v. Moss,
Tai £28 Tl OO Cee. 1906) 2 sk Ss 13
$18 F.2d 423 (Sth Cir. 1987) .......-.-..-.-- 11
vi
TABLE OF AUTHORITIES - Continued
See Giese SAAN) 8 eS ee le
Reves v. Ernst & Young,
507 U.S. 170, 113 S.Ct. 1163,
Se ee IED a co. ow we 06k oe
Ricl Ly. Metiomwite Costa t 3;
52 F.3d 640, 645 (7th Cir. 1995) ..... 9, 10,
ge Re: | he AR. eer era
Rusello v. United States,
464 U.S. 16, 20, 104 S.Ct. 296, 299,
76 tee E15 Oo CORED 6S ew Rk
vill h Vv
Mach. Corp.,
742 F.2d at 789-790 (3d Cir. 1984),
cert. denied, 409 U.S. 1211 (1985) .........
Shoaf v. Fitzpatrick,
109 F.2d 290 (6th Cir. 1939),
cert. denied, 60 S.Ct 295,
Se Gee ee SE oes ose 8 ee ee
United States v. Bagaric,
706 F.2d 42, 55 (2d Cir.),
cert. denied, 464 U.S. 840 (1983) ..........
_
Vii
TABLE OF AUTHORITIES - Continued
Page
United States v. Bledsoe,
674 F.2d 647, 665 (8th Cir.),
cert. denied, 459 U.S. 1040 (1982) ......... 10
697 F.2d 915, 921 (11th Cir.),
cert. denied, 464 U.S. 856,
78 L.Ed.2d 157, 104 S.Ct. 175 (1983) ....... 10
709 F.2d 214, 223-24 (3d Cir.)
(as amended), cert. denied, 464
Se en I ooo ho on 2 3 Shs OES i)
United States v. Sanders,
928 F.2d 940, 944 (10th Cir.)
cert. denied, 502 U.S. 845,
116 L.Ed.2d 109, 112 S.Ct. 142 (1991) ...... 10
763 F.2d 628, 632 (4th Cir. 1985) ......... 9
United States v. Turkette,
452 U.S. 576, 69 L.Ed.2d 246,
Se es A NOES 6 ob ea te ee ESS 9
79] F.2d 489, 499-500 (7th Cir.),
cert. denied, 479 U.S. 940,
93 L.Ed.2d 372, 107 S.Ct. 422 (1986) ....... 12
Vili
TABLE OF AUTHORITIES - Continued
Page
West v. Kerr-McGee Corp.,
Ta Pie A GE) kk eS eS 15, 17, 19
po RS gt Se me 13, 14
WMATA v. Johnson,
467 U.S. 932, 104 S.Ct. 2832 (1984) .... 15, 16
STATUTES:
The Racketeer Influenced and Corrupt
Organizations Act
CEis ole Ee. re er 7, 8-11, 14
Pe Se aes SED no he VE ee 8
oe ee So bo oc ee eee ees : ey Me
eas SO) ov eee seer Oe ee FES 2
Fe Ae CO ee Reel ee ee 8h 9
a6 USA: S RAED) os be ee ae ee 467
ae ae EOE hee OR aS 7
The Longshore Harbor Workers’ Compensation
Act, as amended in 1984 °
33 U.S.C. §§ 904(a) and 905(a) ....... 2, % 2.
7, 15-20
Labor Management Relations Act § 301
TB TOE Se ee HON FAR EES 7
ix
TABLE OF AUTHORITIES - Continued
OTHER: Page
Wright & Miller, Federal Practice and
Procedure par. 3612, at 529-31 (citing
I 5s eK BS 12
Friendly, The Historic Basis of Diversity
Jurisdiction, 41 Harv. L.Rev. 483 (1928) ......... 14
H.R. Report No. 98-1027, 98th Cong. 2d :
OG re ee oe SSS SO es mh 17
On July 8, 1998, a panel of the Ninth Circuit upheld
the Hawaii District Court’s judgment, granting summary
judgment on Quentin Tahara’s claim under the Racketeer
Influenced and Corrupt Organization Act ("RICO") (App. E-
4), because he did not plead the requisite existence of an
associated-in-fact enterprise with an ascertainable structure
separate and apart from the structure inherent in the conduct
of the pattern of racketeering activity, with the requisite
mechanism for controlling and directing the affairs of the
group on an on-going, rather than ad hoc, basis. (App. B-2.)
The Ninth Circuit also upheld the District Court
finding that Quentin Tahara failed to sustain his burden of
proof on residency in the new state, for purposes of diversity
of citizenship jurisdiction, when he voluntarily moved to
Arizona while participating in a witness protection program,
awaiting the opportunity to testify at the criminal trial of the
assailant who beat and blinded him for reporting the
assailant’s alleged racketeering activities. (App. B-4.)
The Ninth Circuit also dismissed Tahara’s case without
addressing whether or not the 1984 amendments to the
Longshore Harbor Workers’ Compensation Act did away with
the "borrowed servant" doctrine, holding that this question did
not implicate any considerations of maritime law or water-
based commerce, or invoke any federal interest in uniformity
of decision requiring the application of federal substantive
law. (App. B-3.)
Quentin Tahara respectfully petitions for a writ of
certiorari to review the judgment of the United States Court
of Appeals for the Ninth Circuit in this case.
OPINIONS BELOW
The denial for the petition for rehearing (App. A,
infra), is unreported. The Ninth Circuit panel’s decision
(App. B, infra), is unreported. The District Court’s Order
Concerning Defendant ILWU’s Motion For Clarification
(App. C, infra), is unreported. The District Court’s Order
Regarding Plaintiff's Motion for Reconsideration (App. D,
infra), is unreported. The District Court’s Order Granting
Defendants’ Motion for Summary Judgement on Federal
RICO Claim and Dismissing Without Prejudice All Remaining
Claims for Lack of Subject Matter Jurisdiction (App. E,
infra), is unreported. The District Court’s Order Denying
Plaintiff's Cross Motion For Leave to File Second Amended
Complaint (App. F, infra), is unreported.
JURISDICTION
The Court of Appeals entered its Order Denying
Petition for Rehearing on August 28, 1998. The jurisdiction
of this court is invoked under 28 U.S.C. § 1254(1).
STATUTES INVOLVED
The Racketeer Influenced and Corrupt Organizations
Act, 18 U.S.C. 1961(4) and (5), as set forth in App. I, infra.
The Longshore Harbor Workers’ Compensation Act, as
amended in 1984, 33 U.S.C. §§ 904(a) and 905(a), as set
forth in App. J, infra.
STATEMENT
Quentin Hideyuki Tahara (hereinafter "Tahara") was
employed by McCabe, Hamilton & Renny Co., Inc.
(hereinafter "McCabe") as a stevedore for more than 10
2
years. During this time he had been a member of the
International Longshoremen Warehousemen’s Union Local
142 (hereinafter "Union"). Tahara was in line to be a
permanent Crane Operator and was occasionally working as
a Substitute Crane Operator.
In March 1994, Tahara confidentially reported to
Matson Terminals, Inc. (hereinafter "Matson") a co-worker,
Bruce Perry (hereinafter "Perry"), for "running away".
"Running away" is an activity where the worker arrives at the
job site, checks in and then leaves, causing his co-workers to
do the work of the person who runs away. Running away is
a form of theft from the employer, who passes the shipping
costs onto the public. Perry’s time was believed to have been
cut because of Tahara’s report. Three of the ten-member
gang, known as the "Perry Boys," had run away that day.
The "Perry Boys" is a gang whose acts of violence extends
beyond the docks into areas of (alleged extortion for)
commercial protection of bars and restaurants.
The Union, McCabe and Matson have been aware of
this "running away" for years. Henry Kreutz (hereinafter
"Kreutz") is the Union Vice-chairman and Bruce Perry’s
brother-in-law. Kreutz used his Union power to find out the
identity of Tahara as the person who reported Perry.
After learning from Matson that Tahara had reported
Perry, Kreutz confronted Tahara in a threatening manner in
the Matson parking lot, intimidating Tahara into admitting he
reported Perry.
On March 30,1994, Perry was waiting in the Matson
terminals parking lot for Tahara to arrive for work as a crane
operator. Perry confronted Tahara stating "Why the f*** you
have to cut my time?" Perry then viciously attacked Tahara,
crushing Tahara’s skull which permanently severed Tahara’s
optic nerve, causing blindness. Perry continued to beat and
kick Tahara as he lay on the ground unconscious, breaking at
least four of Tahara’s ribs.
The beating took place in plain view at the Matson
Terminal employee gate at the change of shift, where all the
workers arriving to work and leaving work pass. Tahara was
taken to the hospital for emergency surgery and the police
began an attempted homicide investigation.
Tim Guard, the President of McCabe, Nat Lum the
ILWU Union Chairman, the assailant Perry, Kreutz, and Bob
Bee, McCabe Vice President, met within a couple of days of
the beating. Perry was assured that he would keep his job
despite having nearly killed Tahara.
The public beating of Tahara was to enforce and
perpetuate the Perry Boys "running away” activity. The
Perry Boys’ use of violence and beatings extended beyond the
waterfront workplace, to beatings in other parts of Honolulu,
including Restaurant Row. Plaintiff submitted sworn police
testimony regarding the Perry Boys’ reputation for violence
off and on the waterfront.
Tahara filed a LHWCA claim for benefits from
McCabe and Matson. McCabe and Matson denied that
Tahara was their employee at the time of the beating because
of a labor loan agreement, making Tahara and his co-workers
"Borrowed Servants."
For six months Tahara was without any benefits,
payment for medical care or compensation, because of the
confusion over who was Tahara’s employer. Tahara had
worked on the waterfront for 10 years and to his
4
understanding, for the same employer. An Informal
Conference was held at the Department of Labor’s Office of
the Workers’ Compensation Programs. A Memorandum of
Informal Conference was issued on October 27, 1994.
Matson eventually paid compensation benefits when they
realized Tahara was going to sue them and Matson wanted the
benefit of §905(a) tort immunity. The borrowed servant
doctrine and the “labor loaning" concept has defeated one of
the primary purposes of the LHWCA, the provision of
prompt payment by the employer to the injured employee.
Tahara sought to resolve the issues determining his employer
under LHWCA by cross-motion for summary judgment in the
District Court.
Tahara’s blindness from the beating resulted in
Tahara’s inability to meet the minimum vision requirement to
work as a crane operator. Crane operator is the highest
paying job opportunity on the Honolulu waterfront. Tahara
returned to work for a short while as a low-level clerk until
he entered a witness protection program.
Tahara cooperated with the Honolulu Police
Department and F.B.I. investigations on the beating and
racketeer activities on the Honolulu waterfront. This
cooperation included wearing a body wire to tape-record his
meeting with key witnesses.
In May 1995, Tahara was approached by the Honolulu
Police Department and placed in protective police custody
because the police believed Tahara’s life was in immediate
danger and that the police could not protect Tahara while he
was working. Tahara was secretly housed in federal military
installations in Hawaii. Tahara was moved to California in a
witness protection program while awaiting his testimony in
the criminal trial of Perry because of the extraordinary costs
of providing around-the-clock police protection.
Tahara left his home in the State of Hawaii to live in
protective custody as he was afraid he would be killed by the
Perry Boys if he stayed in Hawaii, to prevent his testifying
against Bruce Perry. Tahara had a specific intent not to
reside in Hawaii. Tahara was permitted to pick where he
wanted to move to and he chose Arizona. Tahara had a
specific intent to reside in Arizona. Among the reasons
Arizona was purposely chosen by Tahara as his new home,
was to create diversity of citizenship jurisdiction, so that he
could avail himself of a federal forum to resolve his claims
for recovery.
On February 17, 1997, Tahara physically moved to ;
Arizona, rented a home, obtained an Arizona driver’s license :
and registered to vote in Arizona. He was physically living
in Arizona, when his suit was filed in Hawaii. He has
continued to file for and pay Arizona state taxes for several
years. Tahara has two children who live with their mother in
Honolulu. Tahara was never married to their mother and she }
had both legal and physical custody of the children. Tahara
kept a telephone with an answering machine in Hawaii so that
he could be contacted without anyone knowing where he had
moved.
r Ree cerca tee —
Bethe ee em -
Tahara filed a complaint on March 18, 1996 and before i
service was effected, filed a First Amended Complaint on '
March 27, 1996 in the U.S.D.C. to correct some initial
typographical errors. He also filed (but never served) a
Complaint and First Amended Complaint with the State court
as a protective pleading because the statute of limitations was
about to run. The state action was removed to the U.S. |
District Court and these cases were then consolidated. Only
6
the federal court First Amended Complaint was served and
answered.
Matson filed a Motion for Summary Judgment now
claiming to be Tahara’s employer and therefore immune from
liability and claiming that plaintiff could not meet the injury
to business and property standing requirement of RICO. The
Union moved to dismiss, claiming LMRA §301 preemption
and no RICO damages standing. McCabe moved for partial
summary judgment on several RICO issues and preemption by
NLRA.
Tahara filed a Cross Motion for Summary Judgment,
asking the Court to determine as a matter of law that McCabe
was his employer and the viability of the "borrowed servant"
doctrine, after the 1984 amendments to LHWCA. Tahara
also asked for summary judgment that he has suffered
business or property damages for RICO Standing. Tahara
also filed a Motion for Leave to Amend his complaint. The
District Court denied or refused to consider Tahara’s motions.
App. F, infra.
On February 25, 1997, the District Court granted
defendants’ motion finding plaintiff lacked standing because
there were no "damages" to Tahara’s business or property.
The District Court never mentioned the “enterprise”
requirement under RICO. The Court sua sponte found no
diversity jurisdiction for failing to explain how a person who
has been working in Honolulu for ten years could be an
Arizona resident. App. E-14. On February 28, 1997, Tahara
filed a Motion for Reconsideration followed on March vA
1997 by a Notice of Appeal. On April 30, 1997, the District
Court issued its Order denying Tahara’s Motion for
Reconsideration (App. D), because he used his old address
when he transferred ownership of his Hawaii property into a
trust for his children because he was fearful for his life, and
because he had a telephone number which was listed in the
Oahu telephone directory, and an answering machine. Tahara
filed an Amended Notice of Appeal on May 8, 1997. The
Union asked for further clarification on May 21, 1997, and on
July 1, 1997 the District Court issued its Order Concerning
Clarification. (App. C.)
REASONS FOR GRANTING THE WRIT
RICO defines the term "enterprise" to include (1) "any
individual, partnership, corporation, association, or other
legal entity,” and (2) “any union or group of individuals
associated in fact although not a legal entity." 18 U.S.C.
1961 (4). The Supreme Court is requested to grant certiorari
to determine the minimum requirements for an associated-in-
fact enterprise.
Admittedly, the term "enterprise" is broad. Broad
terms are consistent with the “liberal construction” clause of
RICO that provides the chapter is to be liberally construed to
effectuate Title [X’s remedial purposes. Congress’ intent
should not be frustrated by an overly narrow reading of
RICO. Reves v. Ernst & Young, 507 U.S. 170, 113 S.Ct.
1163, 122 L.Ed.2d 525 (1993).
Congress used general terms in RICO because it was
fully consistent with the pattern of the RICO statute in
utilizing terms and concepts of breadth. Among these are
“enterprise” in §1961(4); "racketeering activity” in §1961(1)
8
iach Sissies ANIA OREN IMS MIN
(1982 ed.); and "participate" in §1962(c). Rusello v. United
States, 464 U.S. 16, 20, 104 S.Ct. 296, 299, 78 L.Ed.2d 17,
19 (1983).
Congress drafted RICO broadly enough to encompass
a wide range of criminal activity, taking many different forms
and likely to attract a board array of perpetrators operating in
many different ways. Vv
, 492 U.S. 229, 109 S.Ct. 2893, 106
L.Ed.2d 195 (1989).
In United States v. Turkette, 452 U.S. 576, 69
L.Ed.2d 246, 101 S.Ct. 2524 (1981), this Court found that
"there is no restriction upon the associations embraced by the
definition: an enterprise includes any union or group of
individuals associated in fact." Id., at 580.
The Ninth Circuit Court of Appeals interpreted the
Supreme Court’s decision in United States v. Turkette, 452
U.S. 576, 69 L.Ed.2d 246, 101 S.Ct. 2524 (1981), as
requiring that "a RICO enterprise must have an ascertainable
structure separate and apart from the structure inherent in the
conduct of the pattern of racketeering activity." Chang v.
Chen, 80 F.3d 1293, 1295 (9th Cir. 1995).
Six other circuits have also interpreted the Supreme
Court’s decision in Turkette to require a RICO enterprise to
have an ascertainable structure separate and apart from the
pattern of racketeering activity in which it engaged. United
States v. Riccobene, 709 F.2d 214, 223-24 (3d Cir.) (as
amended), cert. denied, 464 U.S. 849 (1983); United States
v. Tillett, 763 F.2d 628, 632 (4th Cir. 1985); Atkinson v—
808 F.2d 438, 441 (Sth cir.)
Anadarko Bank and Trust Co.,
(per curiam), cert. denied, 483 U.S. 1032, 97 L.Ed.2d 780,
107 S.Ct. 3276 (1987); Richmond v. Nationwide Cassel L.P.,
9
52 F.3d 640, 645 (7th Cir. 1995) (citing United States v.
Neapolitan, 791 F.2d 489, 499-500 (7th Cir.), cert. denied,
479 U.S. 940, 93 L.Ed.2d 372, 107 S.Ct. 422 (1986); United
States v. Bledsoe, 674 F.2d 647, 665 (8th Cir.), cert. denied,
459 U.S. 1040 (1982); United States v. Sanders, 928 F.2d
940, 944 (10th Cir.) cert. denied, 502 U.S. 845, 116 L.Ed.2d
109, 112 S.Ct. 142 (1991).
The Second Circuit and the Eleventh Circuit have not
required an enterprise to have an ascertainable structure
separate and apart from the structure arising out of the pattern
of racketeering activity. United States v. Bagaric, 706 F.2d
42, 55 (2d Cir.), cert. denied, 464 U.S. 840 (1983); United
States_v. Cagnina, 697 F.2d 915, 921 (11th Cir.), cert.
denied, 464 U.S. 856, 78 L.Ed.2d 157, 104 S.Ct. 175
(1983). Tahara prevails in his RICO claim under this
interpretation of the law.
Tl Cestioreri Should Re G ast len Mahal ited
‘analeteihaiaa a ‘se Under RICC
The Ninth Circuit Chang v. Chen, 80 F.3d 1293 (9th
Cir. 1995) opinion did not even discuss, much less explain,
why the enterprise proof burden it established was a necessary
pleading burden for a RICO plaintiff. The Chang opinion
went on to uphold the district court’s refusal to allow
amendment of the complaint’s enterprise allegations,
notwithstanding the Ninth Circuit’s concession that it had
previously “not yet resolved how much structure RICO’s
enterprise element requires." Chang, 80 F.3d at 1298.
The Seventh Circuit has also adopted enterprise
pleading requirements. Richmond v. Nationwide Cassel L.P.,
52 F.3d 640 (7th Cir. 1995). According to the Seventh
10
i at at
sRIRnkepeeead sche
PB Bonn SA eh ith teed eta ee
CREAM AMT MI andes (= 620
conclusion. i , 818
F.2d 423 (5th Cir. 1987).
By contrast, in
Vv
, 142 F.2d at 789-790 (3d Cir. 1984),
cert. denied, 409 U.S. 121] (1985), the Third Circuit adhered
w Cettiorari Should Be Granted To Determine If A
His Domicile To Create Diversity For Purposes Of 33
The license and voter’s registration are among the
types of evidence that are considered in connection with a
1]
domicile determination. Courts traditionally list the following
factors as relevant to the domicile determination: current
residence, voting registration and practice, driver’s license
and automobile registration, location of personal and real
property, location of bank accounts, location of spouse and
family, place of employment and business, and payment of
taxes. Wright & Miller, Federal Practice and Procedure par.
3612, at 529-31 (citing authorities). See also Bruton v.
Shank, 349 F.2d 630, 631 n.2 (8th Cir. 1965). Tahara has
filed Arizona state taxes since the original briefing on this
issue.
Quentin Tahara is a man who was nearly beaten to
death, for reporting gang and union corruption. Quentin
Tahara fled Hawaii in search of personal safety. He did not
intend to live in Hawaii. Applying the traditional indicia of
domicile to determine Tahara’s intended domicile is an
exercise that made little sense. Tahara’s "intent" was to live
in a place where his life would not be in jeopardy. That was
in a place where the defendants were not. He picked
Arizona.
Quentin Tahara was voluntarily relocated to save the
State of Hawaii expense. He was provided with subsistence
and assisted in keeping his whereabouts a secret. Even his
attorney had to contact him through the police department or
by leaving a message on his answering machine.
The decision to relocate to Arizona was entirely
plaintiff's own. Even the police department did not know
where in Arizona plaintiff was relocating. Tahara considered
moving to Las Vegas. The police department rejected the
idea because of the presence of so many Hawaiian visitors to
Las Vegas it was possible Tahara might be seen. Tahara was
residing in Arizona at the time suit was filed.
12
5 lice leiatis
Any person sui juris may acquire a new domicile at
any time and for any reason. Janzen v. Goos, 302 F.2d 421
(8th Cir. 1962). A change in domicile typically requires only
the occurrence of (1) physical presence at the new location
with (2) an intention to remain there indefinitely. Lew v.
Moss, 797 F.2d 747 (9th Cir. 1986). When these two
prerequisites occur simultaneously the new domicile is
acquired instantly. If the bona fide establishment of a new
domicile is proven, the motive for its acquisition and the
length of duration become irrelevant. Williamson _v.
Ostenton, 232 U.S. 619 (1914).
[H]is right to sue in the courts of the United
States is nonetheless because his change of
domicile was induced by the purpose, whether
avowed or not, of invoking, for the protection
of his rights, the jurisdiction of a Federal court.
Morris v. Gilmer, 129 U.S. 315, 328 (1889)
If the change of domicile is bona fide, the right to sue
in Federal court is not affected by motive. Shoaf v.
Fitzpatrick, 109 F.2d 290 (6th Cir. 1939), cert. denied, 60
S.Ct 295, 308 U.S. 620, (1939).
Tahara has met his burden of demonstrating his move
to Arizona was bona fide. There is no evidence to the
contrary. Where his children live does not matter as they
have never lived with him. Selling or transferring real estate
is not residing in a state. The only connection Tahara had to
Hawaii on the day he filed suit, was an answering machine.
There is a privacy issue here.
The Constitution of the United States and the Judiciary
Act of 1789 bestow diversity jurisdiction to controversies
13
between citizens of different states. The traditional
explanation remains, that offered by Chief Justice Marshall:
However true the fact may be that the tribunals of the
states will administer justice as impartially as those of
the nation, to parties of every description, it is not less
true that the Constitution itself either entertains
apprehensions on this subject, or views with such
indulgence the possible fears and apprehension of
suitors that it has established national tribunals for the
decision of controversies between aliens and citizens, )
or between citizens of different states." Bank of the
United States v. Deveux, 5 Cr. (9 US) 61, 87 (1809). )
See, also Friendly, The Historic Basis of Diversity )
jurisdiction, 41 Harv. L.Rev. 483 (1928). One could create
diversity by a bona fide change of domicile even with the sole
motive of creating diversity. Williamson v. Ostenton, 232
U.S. 619 (1914).
Tahara was beaten, blinded and placed in protective
custody. Tahara was living in Arizona with the intent to
remain there when the suit was filed. Tahara believes he
needs the refuge of the Federal court and that is why he seeks
it. He cooperated with State and Federal authorities in their
efforts to prosecute violent racketeers. Is it possible that if he
did not go into the witness protection program and had moved
to Arizona on his own, he would have diversity, but because
the government helped to protect him, the move was not bona
fide?
Tahara’s intent was to establish residency in Arizona |
to secure the benefit of a federal forum, even if his RICO
14
claim was dismissed. This is not motive, it is intent to
remain in Arizona for the foreseeable future.
In West v. Kerr-McGee Corp., 765 F.2d 526 (Sth
Cir.), the Fifth Circuit acknowledged that Congress may have
abolished the borrowed servant doctrine in 1984. WMATA
y. Johnson, 467 U.S. 932, 104 S.Ct. 2832 (1984) is the case
which prompted Congress to enact the 1984 Amendments to
LHWCA. Plaintiff requests this Court to review this matter
and find that the 1984 Amendments abolished the borrowed
servant doctrine as it applies to the LHWCA. This doctrine
has caused endless mischief and delay to the injured worker
on the waterfront. Employers haggle while the worker
suffers. This issue is of urgent concern to national maritime
policy and is capable of repetition, yet avoiding review.
In WMATA, the Supreme Court granted a writ of
certiorari to determine when a contractor is entitled to
immunity from suit by a subcontractor’s employee under the
LHWCA. After reviewing §4(a) and §5(a) (App. J), Justice
Marshall indicated the wording of these two sections was
ambiguous. There was no clear indication if the immunity
granted to employers in §5(a) applied to the contractors
mentioned in §4(a). He indicated two distinct inquiries had
to be made: "First, does §5(a)’s grant of immunity ever
extend to general contractors? And second, if §5(a) can
extend to general contractors, what must a general contractor
do to qualify for §5(a)’s immunity?” WMATA, 467 U.S.
932, 104 S.Ct. 2832.
15
Reviewing the case law and the intent of these two
sections, Justice Marshall concluded that §5(a) could cover
general contractors. Justice Marshall found that when the two
Sections are considered together, they appear to grant a
contractor immunity from suit by the subcontractor’s
employees unless the contractor has neglected to secure
Longshore coverage. Justice Marshall concluded that
WMATA was entitled to immunity from the tort actions
brought by the subcontractor’s employees.
In a matter of months, Congress amended §4(a) and
§5(a) of the LHWCA to overturn the Supreme Court’s
decision. In its Conference Report, the Joint Committee
stated:
The Conference substitute, in disapproving WMATA
v._Johnson, achieves the following: First, the
obligation of the contractor to secure compensation for
the employee of the subcontractor is a contingent one,
which is triggered only upon the failure of the
subcontractor to secure compensation for its own
employees. Second, the contractor remains amenable
where the subcontractor-employer has fulfilled its
blicati i ier d
employees. Third, however, where the subcontractor
_ defaults in securing compensation, thus triggering the
contractor’s obligation, the contractor is deemed an
"employer" for purposes of section 5 and is therefore
entitled to immunity from suit by the subcontractor’s
employees. Fourth, if the contractor utilizes a "wrap-
up” insurance policy to provide insurance coverage for
the benefit of satisfying the subcontractor’s primary
obligation to secure compensation, the contractor still
remains amenable to suit by employees of the sub-
16
contractor; the contractor does not enjoy the immunity
afforded by Section 5(a) of the Act. (emphasis added)
H.R. Report No. 98-1027, 98th Cong. 2d Sess.24
(1984)
As amended, the wording in §4(a) and §5(a) forecloses
the designation of any contractor as the employer of its
subcontractors’ employees -
ionship existed - unless the subcontractor failed to secure
the payment of compensation. McCabe secured workers’
compensation coverage in the present case. McCabe’s insurer
Eagle participated in the LHWCA claim. Additionally,
McCabe secured compensation by shifting the obligation to
provide coverage on incidents at Matson to Matson in the
"Stevedoring and Terminal Services Agreement" between
McCabe and Matson. Tahara never consented to this
relationship. He is not a party to this agreement, he is the
victim. Now the two parties to the agreement are fighting
and Tahara suffers the brunt of the contracting parties’
inability to agree on who is his employer. This is a contract
to bargain for immunity from tort liability. It is a loophole
that is offensive to public policy. The sole purpose is to
disadvantage the worker who is not even a party to the
agreement.
The Fifth Circuit considered whether Congress
abolished the borrowed servant doctrine in West _v. Kerr-
McGee Corp., 765 F.2d 526 (Sth Cir. 1985).
Kerr-McGee filed a motion for summary judgment,
contending West was its borrowed employee and as such
Kerr-McGee enjoyed immunity from suit under §5(a) of the
LHWCA. The court agreed and dismissed West’s action.
17
On appeal, the Fifth Circuit noted that two situations
arise in which the court must determine if the employer is
entitled to immunity from suit: (1) when the defendant is not
the plaintiff's employer but it contends the plaintiff is acting
as the defendant’s borrowed employee; and (2) when the
defendant is a general contractor whose subcontractor is the
true employer of an injured employee. In the first situation,
the employer would enjoy such immunity if the employer
could show the employee met the borrowed employee tests in
Ruiz v. Shell Oil, 413 F.2d 310 (Sth Cir. 1969) and Gaudet
v. Exxon Corp., 562 F.2d 351 (Sth Cir. 1977). The second
situation arises when the subcontractor’s employee is injured,
receives Longshore benefits and files a third party suit against
the general contractor. The general contractors argued that
they were entitled to immunity from suit since they had to
guarantee the payment of compensation to the subcontractor’s
employees.
Acknowledging that Congress may have abolished the
borrowed servant doctrine under the LHWCA, the Fifth
Circuit noted,
"[t]he bare language of the amendment to §5(a) could
also be interpreted as foreclosing any designation of
any contractor as the employer of its subcontractors’
employees - even if a borrowed employee relationship
existed - unless the subcontractor failed to secure
compensation payments.” 765 F.2d at 529.
While the Fifth Circuit acknowledged that the plain
language of the 1984 Amendments could be construed to
abolish the borrowed servant doctrine, the Fifth Circuit went
on to conclude that the borrowed servant doctrine under the
LHWCA which had been created in the Fifth Circuit was
alive and well.
18
ve ntti temtinste vats ne
In West, supra, the majority opinion acknowledged that
the 1984 Amendments could be construed to abolish the
borrowed servant doctrine. The concurring opinion of Judge
Tate (of blessed memory) found that the borrowed servant
doctrine was abolished by the 1984 Congressional
clarifications and noted:
The Congressional report did not refer to this thin line
of mostly Fifth Circuit jurisprudence [LHWCA
borrowed servant doctrine], totally inconsistent with
the general purposes and express language of the 1984
Amendments. I do not find the absence of reference
to these decisions, and a brief conclusory statement of
the Legislative Report, has any indication that the
Congress desired to preserve the precedential effect of
all and any pre-1984 Amendment judicial decisions,
nor especially of any that were completely contrary to
the unambiguous language of the 1984 Amendments -
which was specifically intended to clarify that a general
contractor enjoyed no tort immunity as to work injuries
sustained by a subcontractor’s employee, where that
subcontractor had (as here) secured the payment to the
injured employee of compensation benefits accorded
him by the act.
Whatever merits there may have been to the borrowed
servant tort immunity judicially granted to that
contractor - albeit, without judicial analysis of the act
or reasoned judicial explanation for the immunity - has
disappeared with the 1984 clarification.
West, 765 F.2d at 534
19
Judge Tate’s concurring opinion is persuasive, the
majority concedes that the plain language of the 1984
Amendments can be read as Judge Tate suggests. In the 1984
Amendments, Congress abolished the borrowed servant
doctrine. The difficulties and delays which application of the
borrowed servant doctrine has caused, undermines the
humanitarian purposes of the LHWCA.
LHWCA immunity is based firmly on a statutory, non-
consensual "quid pro quo" attached to the employment
relationship itself: the limited statutory benefits provided by
the Act (medical care and payment of part of lost earnings),
payable by the employer promptly without awaiting the
outcome of litigation except in cases of genuine dispute,
without regard to fault of either the employer or employee, in
return for foreclosure of recovery for full damages otherwise
recoverable from the employer.'
A multi-factor test relying upon information outside of
the knowledge of the employee which allows for subjective
judgments as to the weight and outcome given each factor is
especially unsuitable for use in determining who has to
provide the benefits called for by the Act. Promptness is
essential to the value of the Act. It is not fair for workers to
trade the full liability that otherwise would be available
against a party for uncertainty as to who is their employer.
The purpose of the act has been reversed - the borrowed
servant doctrine creates uncertainty of payments to the worker
' Quentin Tahara did not receive any payment for seven months after
both possible employers filed acknowledgments of the claim in the form
of LS-202’s. The companies did not first attempt to see that the injured
worker’s rights to medical care and compensation were secured instead
they proceeded to dispute among themselves who was ultimately
responsible for the payment.
20
peptone Mesa pt:
and is frustrated by parties competing against each other with
regard to payment of benefits and immunity.
Justice and human dignity dictates a finding that the
borrowed servant doctrine was abolished and put an end to
the situation which encourages employers to litigate against
each other while employee benefits are delayed and denied
pending the outcome of a determination of who is the
"employer". Traditional tests of sanity include questions like,
“what year is this," "who is the president of the United
States," and "who is your employer?" Is it possible that after
10 years on the job, Tahara could not answer that question?
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted,
Jay Lawrence Friedheim
Counsel of Record
820 Mililani Street
Suite 503
Honolulu, Hawaii 96813
(808) 545-5454
Mark G. McDougal
The Allred Law Firm
1911 Dunbarron Drive
P.O. Box 3828 (39207)
Jackson, MS 39216
(601) 713-1414
21
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
QUENTIN HIDEYUKI TAHARA, ) NO. 97-15426
)
Plaintiff-Appellant, ) D.C. Nos.
) CV-96-00284-DAE
vs. ) CV-96-00410-DAE
)
MATSON TERMINALS, _INC.; )
MCCABE HAMILTON & RENNY, )
CO., LTD.; INTERNATIONAL )
LONGSHOREMEN’S AND )
WAREHOUSEMEN’S UNION, )
LOCAL 142; BRUCE GEORGE )
PERRY; HENRY KREUTZ, JR.; )
JOHN DOES 1-20; MARY DOES 1- )
20; DOE CORPORATIONS 1-20; )
DOE PARTNERSHIPS 1-20; DOE )
ASSOCIATES 1-20; DOE)
GOVERNMENTAL AGENCIES 1- )
20; DOE STATES 1-10; OTHER )
ENTITIES 1-20, )
)
Defendants-Appellees. )
)
CV-96-00412-DAE
ORDER
(Filed Aug. 28, 1998)
Before: HALL and THOMAS, Circuit Judges, and WHALEY“,
District Judge.
The petition for rehearing is denied.
* Honorable Robert H. Whaley, United States District Judge for
Eastern Washington, sitting by designation.
App. A-1
a iaalaeeeiaeaaamaienaall
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
QUENTIN HIDEYUKI TAHARA,
Plaintiff-Appellant,
)
)
)
)
vs. )
)
MATSON TERMINALS, _INC.; )
MCCABE HAMILTON & RENNY, )
CO., LTD.; INTERNATIONAL )
LONGSHOREMEN’S AND )
WAREHOUSEMEN’S UNION, )
LOCAL 142; BRUCE GEORGE
PERRY; HENRY KREUTZ, JR.;
JOHN DOES 1-20; MARY DOES 1-
20; DOE CORPORATIONS 1-20;
DOE PARTNERSHIPS 1-20; DOE
ASSOCIATES 1-20; DOE)
GOVERNMENTAL AGENCIES I- )
20; DOE STATES 1-10; OTHER )
ENTITIES 1-20, )
)
Defendants-Appellees. )
)
i a a
NO. 97-15426
D.C. Nos.
CV-96-00284-DAE
CV-96-00419-DAE
CV-96-00412-DAE
MEMORANDUM
(Filed July 8, 1998)
Appeal from the United States District
Court for the District of Hawaii
David A. Ezra, District Judge, Presiding
' This disposition is not appropriate for publication and may
not be cited to or by the courts of this circuit except as provided by
Sth Cir.R.36-3.
App. B-1
Argued and Submitted June 9, 1998
San Francisco, California
Before: HALL and THOMAS, Circuit Judges, and
WHALEY’, District Judge.
Quentin Hideyuki Tahara appeals the district court’s
decision granting summary judgment as to his federal causes of
action, and remanding his non-preempted state law claims. After
a careful consideration of the record, briefs and oral argument by
the parties, we affirm the district court. Because the parties are
familiar with the procedural and factual history of this case, we
will not recount it here.
I
Tahara’s claim under the Racketeer Influenced and Corrupt
Organizations Act, 18 U.S.C. §§ 1961-68 ("RICO") fails because
he does not establish the requisite existence of an associated-in-fact
enterprise with "an ascertainable structure separate and apart from
the structure inherent in the conduct of the pattern of racketeering
activity." Chang v. Chen, 80 F.3d 1293, 1295 (9th Cir. 1996).
Tahara does not adduce facts to establish that the “Perry Boys”
scheme is indeed an enterprise under RICO, neglecting to show
that the "Perry Boys" entity has the requisite "mechanism for
controlling and directing the affairs of the group on an on-going,
rather than an ad hoc, basis." Chang, 80 F.3d at 1299. Instead,
Tahara characterizes the "Perry Boys” as "an amorphous group,”
with "a sort of division of levels," including a level for workers
who engage in "running away,” and other levels for those
individuals who "enforce[]" the program against "honest
stevedores,” and who are members of middle management of the
corporate defendants and the ILWU. These references to a
"hierarchical relationship" among the defendants are insufficient to
? Honorable Robert H. Whaley, United States District Judge
for Eastern Washington, sitting by designation.
App. B-2
establish the necessary decision-making mechanism that an
“enterprise” requires. See Chang, 80 F.3d at 1300. Given that
Tahara cannot prevail on his RICO theory for failure to establish
the existence of an associated-in-fact enterprise, we need not
address the other RICO defenses asserted by the defendants.
I
The district court properly held that section 301 of the
Labor Management Relations Act, 29 U.S.C. § 185, preempted
Tahara’s claims against the International Longshoremen and
Warehousemen’s Union, Local 142 ("Union") for tortious
interference with contract, breach of the duty to provide a safe
workplace, duty to warn and the duty not to dispatch defendant
Perry. Because these claims require interpretation of the
applicable collective bargaining agreement and substantially depend
upon interpretation of its terms, the Labor Management Relations
Act preempts these claims. See New Vv
Ass’n, 854 F.2d 1142, 1147 (9th Cir. 1988).
Ti
The district court did not err in determining that it lacked
jurisdiction over Tahara’s remaining state law claims. The district
court properly declined to assume admiralty jurisdiction over
Tahara’s state-law claims. While Tahara’s tort claims arise from
events that occurred on the Honolulu waterfront, the injuries
Tahara asserts implicate no considerations of maritime law.
Resolution of his claims hence "does not require the special
expertise of a court in admiralty as to navigation or water-based
commerce." Sample v. Johnson, 771 F.2d 1335, 1344 (9th Cir.
1985). Nor can Tahara invoke “any federal interest in uniformity
of decision requiring the application of federal substantive law" to
such torts as assault, battery, forcible restraint, negligent hiring,
and negligent supervision, see id.
Because the district court did not clearly err in its factual
determination of Tahara’s domicile, see Lew v. Moss, 797 F.2d
App. B-3
sie
747, 750 (9th Cir. 1986), we affirm its conclusion that diversity
of the parties did not exist. Tahara moved to Arizona only one
month prior to commencing this action; his children still live in |
Hawaii along with their mother; he maintained an active telephone |
listing; and he retained significant Hawaii contacts. Although he
registered to vote in Arizona, and holds an Arizona driver’s
license, the district court did not clearly err in determining that
these links to Arizona were insufficient for Tahara to sustain his
burden of proof on residency.
Given the failure of Tahara’s RICO claim, as well as the
absence of diversity or admiralty jurisdiction, the district court
properly exercised its discretion to decline supplemental
jurisdiction over Tahara’s state-law claims. See Sinaloa Lake
Owners Ass’n v. City of Simi Valley, 70 F.3d 1095, 1102 (9th
Cir. 1995).
—
For these reasons, we affirm the district court’s judgment
in its entirety.
AFFIRMED
OE PI OERN ncaa Sy Meee. Saw
ogee eter akvedns — .lraliee.
> To the extent that Tahara’s state law claims are predicated on
the Union’s alleged breach of its duty of fair representation, this
purported breach, while triggering the application of federal law, see
Vaca v. Sipes, 386 U.S. 171, 177 (1967), does not confer exclusive
federal jurisdiction, id. at 174.
shied. gthintegiaa RS
BINA
Mehouie Seth
App. B-4
a,
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
QUENTIN HIDEYUKI TAHARA, NO. 96-00284 DAE
96-00412 DAE
Plaintiff, 96-00410 DAE
VS.
)
)
)
)
)
)
MATSON TERMINALS, INC. : )
MATSON NAVIGATION COM- )
PANY, INC.; McCABE )
HAMILTON & RENNY, CO., )
LTD.; INTERNATIONAL LONG- )
SHOREMEN AND WAREHOUSE- )
MEN’S UNION, LOCAL 142: )
BRUCE GEORGE PERRY: and )
HENRY KREUTZ, JR., In )
Personam; and DOE VESSELS 1- )
XX, In Rem, JOHN DOES 1-20; +)
MARY DOES 1-10, DOE )
CORPORATIONS 1-20; DOE )
PARTNERSHIPS 1-20: DOE )
ASSOCIATES 1-20: DOR )
GOVERNMENTAL AGENCIES 2- )
20; DOE STATES and OTHER )
ENTITIES 1-20, )
)
)
)
Defendants.
ORDER CONCERNING DEFENDANT
; F
Pursuant to Local Rule 220-2(d), the court finds this
matter suitable for disposition without a hearing. After
reviewing Defendant ILWU’s Motion and the supporting and
App. C-1
opposing memoranda, the court clarifies that Count 8 should be
treated as a claim for assault or battery, and therefore, it is not
preempted or dismissed, but rather it is remanded to state court.
BACKGROUND
The background facts and procedural history of this case
have been set forth in great detail in this court’s Order Granting
Defendants’ Motion for Summary Judgment on Federal RICO
Claim and Dismissing Without Prejudice All Remaining Claims
for Lack of Subject Matter Jurisdiction filed on February 20,
1997 ("February 20, 1997 Order") and this court’s Order
Regarding Plaintiff's Motion for Reconsideration filed on April
30, 1997 ("April 30, 1997 Order"). They will not be repeated
here.
In Defendant ILWU’s instant motion, it seeks
clarification as to whether Count 8 of Plaintiff's First Amended
Complaint has been dismissed. As an initial matter, the counts
in Plaintiff's First Amended Complaint were misnumbered. For
instance, Count 7 was actually Count 6 and Count 8 was
actually Count 7. Rather than address Plaintiff's claims by
number, the court addressed them by causes of action.
Assuming that Defendant ILWU is referring to what Plaintiff
labeled as Count 7, but was actually Count 8, this court will
clarify.
Count 8 states as follows:
102. KREUTZ, and therefore, the ILWU-142 and
MCCABE, intentionally engaged in the lawful act of
finding out who reported to MATSON TERMINALS that
PERRY had "run away;" 103. KREUTZ, and therefore
the ILWU-142 and MCCABE, intentionally engaged in
the lawful act of finding out who reported to MATSON
TERMINALS that PERRY had "run away." They did so
with the intent to cause injury to TAHARA.
App. C-2
104. KREUTZ, and ILWU-142 and MCCABE did in
fact cause injury to Tahara by engaging in this otherwise
lawful act.
105. KREUTZ and the ILWU-142 and MCCABE did not
have any justification or had insufficient justification for
their act of discovering the identity of TAHARA as the
"Whistle Blower" and then revealing his identity to
TAHARA.
Although labeled as a “prima facie tort" the court notes
first that the language in those paragraphs do not support a
cause of action for any tort under Hawaii law. Rather, those
paragraphs appear to simply state facts in support of other
causes of action in previous paragraphs in the complaint.
Nevertheless, Defendant ILWU claims that because Count 8
closely resembles Plaintiff's claim for intentional interference
with prospective economic advantage the court should clarify
that Count 8 is likewise dismissed.
Plaintiff explains to the court that Count 8 is "an
intentional tort involving the intent to inflict physical injury on
Plaintiff." Reply at 2. In other words, by Plaintiff's own
admission, Count 8 is a claim for assault or battery. There is
no other intentional tort under Hawaii law involving intent to
inflict physical injury. Relying upon Plaintiff's representation
that this is what Plaintiff actually intended, the court finds that
Count 8 merely alleges facts in support of Counts | and 2.
Thus, Count 8 is an extension of his assault and battery claims
and should be treated as such. Therefore, Count 8 is not
preempted or dismissed, but rather it is remanded for the
reasons stated in this court’s April 30, 1997 Order.
CONCLUSION
For the reasons stated above, as Count 8 should be
treated as a claim for assault or battery, the court clarifies that
Count 8 is not preempted or dismissed, but rather it is remanded
to state court.
App. C-3
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, JUL 1 1997.
/s/_ David Alan Ezra
DAVID ALAN EZRA
UNITED STATES
DISTRICT COURT
Civil Nos. 96-00284 DAE, 96-00412 DAE, 96-00410 DAE:
ORDER CONCERNING DEFENDANT ILWU’S MOTION
FOR CLARIFICATION
App. C-4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
QUENTIN HIDEYUKI TAHARA, NO. 96-00284 DAE
96-00412 DAE
Plaintiff, 96-00410 DAE
VS.
)
)
)
)
)
)
MATSON TERMINALS, INC.: )
MATSON NAVIGATION COM- )
PANY, INC.; McCABE )
HAMILTON & RENNY, CO., )
LTD.; INTERNATIONAL LONG- _ )
SHOREMEN AND WAREHOUSE- )
MEN’S UNION, LOCAL 142; )
BRUCE GEORGE PERRY: and )
HENRY KREUTZ, JR., In )
Personam; and DOE VESSELS 1-__—i+)
XX, In Rem, JOHN DOES 1-20; )
MARY DOES 1-10, DOE )
CORPORATIONS 1-20; DOE )
PARTNERSHIPS 1-20; DOE )
ASSOCIATES 1-20; DOE )
GOVERNMENTAL AGENCIES 2- )
20; DOE STATES and OTHER )
ENTITIES 1-20, )
)
)
)
Defendants.
ORDER REGARDING PLAINTIFF’S
MOTION FOR RECONSIDERATION
Pursuant to Local Rule 220-2(d), the court finds this
matter suitable for disposition without a hearing. After
reviewing Plaintiff's Motion for Reconsideration and the
App. D-1
supporting and opposing memoranda, the court MODIFIES the
February 20, 1997 Order and DISMISSES Plaintiff's Claims for
Duty to Provide a Safe Workplace, Duty to Warn, Duty to
Dispatch, Interference with Prospective Advantage, and State
RICO claims against ILWU WITH PREJUDICE, REMANDS
Plaintiff's Remaining State Claims to State Court and DENIES
Plaintiff's Request for Certification.
BACKGROUND
The background facts of this case were fully set forth in
this court’s Order Granting Defendants’ Motion for Summary
Judgment on Federal RICO Claim and Dismissing Without
Prejudice All Remaining Claims for Lack of Subject Matter
Jurisdiction, filed on February 20, 1997 ("February 20, 1997
Order"). Those facts need not be repeated in order to address
Plaintiff's motion for reconsideration. The procedural history
relevant to the instant motion are as follows.
On March 18, 1996, Plaintiff Quentin Hideyuki Tahara
("Plaintiff") filed a Complaint in the United States District Court
for the District of Hawaii. The case was assigned to this court.
On March 22, 1996, Plaintiff filed a Complaint in the Circuit
Court of the First District of Hawaii. On May 1, 1996,
Defendant International Longshoremen and Warehousemen’s
Union Local 142 ("ILWU") and Defendant Matson Terminals,
Inc., et al., ("Matson"), removed the case from the Circuit
Court to the U.S. District Court. These Defendants based
removal on both diversity jurisdiction and federal question
jurisdiction created by Plaintiff's RICO claim. The removed
case was referred to District Judge Samuel P. King. That same
day, Defendant McCabe Hamilton and Renny, Co., Ltd.
("McCabe") also removed the case to the district court.
Defendant McCabe likewise based subject matter jurisdiction on
Plaintiff's RICO allegations, and diversity jurisdiction. That
removed action was assigned to District Judge Helen Gillmor.
On June 5, 1996, all parties filed a stipulation to consolidate all
App. D-2
three cases. The consolidated case was then assigned to this
court.
On August 1, 1996, Defendant Matson filed a Motion for
Summary Judgment. On August 9, 1996, Defendant ILWU
filed a Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6).
Defendant McCabe filed a motion for partial summary judgment
on October 16, 1996. Plaintiff filed a cross motion for
summary judgment on November 5, 1996. On February 25,
1997, this court filed the February 25, 1997 Order, which
granted Defendants’ motion for summary judgment on the
federal RICO claim.
In the February 25, 1997 Order, this court found that §
1333 jurisdiction over Plaintiff's admiralty tort claims was
lacking and accordingly dismissed those claims. The court also
found that Plaintiff failed to demonstrate that the losses for
which he requested recovery were losses to business or property
as contemplated by RICO, and because Plaintiff lacked standing
to pursue a federal RICO claim, the court granted Defendants’
Motion for Summary Judgment on that issue. In addition, the
court found that based upon the available evidence complete
diversity did not exist between the parties, therefore, subject
matter jurisdiction was lacking. Consequently, Plaintiff's only
bases for jurisdiction, diversity and federal question based on
RICO and admiralty, were absent. The court declined to assert
supplemental jurisdiction over Plaintiff's state tort and RICO
claims, and dismissed them for want of jurisdiction. Moreover,
the court did not reach the merits of ILWU’s motion to dismiss,
or McCabe’ s motion for partial summary judgment as all of
Plaintiff's remaining claims were dismissed for lack of subject
matter jurisdiction.
On February 28, 1997, Plaintiff filed a Motion for
Reconsideration, or in the Alternative for Certification Under
Rule 54(b), or Remand to State Court. On March 12, 1997,
Plaintiff filed a Notice of Appeal to the Ninth Circuit Court of
App. D-3
aa iia
Appeals.’ On March 13, 1997, Defendant McCabe filed a
Memorandum in Opposition to Plaintiff's Motion for
Reconsideration.?, On March 14, 1997, Defendant Matson filed
a Memorandum in Opposition to Plaintiff's motion for
reconsideration.” On March 17, 1997, ILWU filed a Response
to Plaintiff's Motion for Reconsideration. Plaintiff filed a Reply
to Defendants’ Oppositions on March 24, 1997, and on March
26, 1997, he filed a supplemental affidavit in support of his
motion.
STANDARD OF REVIEW
The disposition of a motion for reconsideration is within
the discretion of the district court and will not be reversed
absent an abuse of discretion. Sheet Metal Workers’ Int’l Ass’n
Local Union. No, 359 v, Madison Indus., Inc., 84 F.3d 1186,
1192 (9th Cir. 1996). There is a "compelling interest in the
finality of judgments which should not be lightly disregarded."
Rodgers v. Watt, 722 F.2d 456, 459 (9th Cir. 1983).
A district court has discretion to decline to consider an issue
raised for the first time in a motion for reconsideration. Self-
' "A notice of appeal after announcement or entry of the judgment
but before disposition of any of the above motions [50(b), 5.2(b),
59...] is ineffective to appeal from the judgment or order, or part
thereof, specific in the notice of appeal, until the entry of the order
disposing of the last such motion outstanding." Fed.R.App.P. 4(a)(4).
At the time of Plaintiff's appeal, this court had not issued an order
disposing of the last such motion - the instant motion for
reconsideration. Because Plaintiff's appeal was ineffective, this court
retains jurisdiction.
? Defendant Henry Kreutz filed a Joinder in McCabe’s
Memorandum in Opposition on March 14, 1997.
> Defendant Henry Kreutz filed a Joinder in Matson’s
Memorandum in Opposition on March 17, 1997.
App. D-4
Ua,
Realization, 59 F.3d 902, 912 (9th Cir. 1995).
It is well settled in the Ninth Circuit that a successful
motion for reconsideration must accomplish two goals. First, a
motion for reconsideration must demonstrate some reason why
the court should reconsider its prior decision. Second, a motion
for reconsideration must set forth facts or law of a strongly
convincing nature to induce the court to reverse its prior
decision. Great Hawaiian Financial Corp. v. Aiu, 116 F.R.D.
612, 616 (D. Hawaii 1987) (citations omitted), rev’d on other
grounds, 863 F.2d 617 (9th Cir. 1988). Courts have established
only three grounds justifying reconsideration: (1) an intervening
change in controlling law; (2) the discovery of new evidence not
previously available; and (3) the need to correct clear or
manifest error in law or fact, to prevent manifest injustice. Id.
The District of Hawaii has implemented these standards in Local
Rule 220-11.
DISCUSSION
Although Plaintiff does not so state in his motion, he
apparently bases his motion on the third criterion, the need to
correct manifest error of law or fact, or to prevent manifest
injustice. Plaintiff makes his motion on several grounds: (1)
Plaintiff experienced a deprivation of his Thirteenth Amendment
freedoms against involuntary servitude, constituting injury under
RICO; (2) diversity jurisdiction was proper because Plaintiff can
prove Arizona citizenship through his Arizona driver’s license
and voter registration; (3) if reconsideration of the RICO claim
is denied, certification of the RICO issue is proper; and (4) if
the motion is denied entirely, the case should be remanded to
State court.
I. RICO Injury
In his motion for reconsideration, Plaintiff quotes the
Thirteenth Amendment, arguing that he was subjected to
App. D-5
involuntary servitude because he was forced to do the work of
other employees against his will. Plaintiff claims that this court
erred in determining that Plaintiff's alleged involuntary servitude
did not constitute economic injury for purposes of RICO
analysis. However, “the term ‘involuntary servitude’
necessarily means a condition of servitude in which the victim is
forced to work for the defendant by the use or threat . . . of
coercion through law or the legal process." United States v.
Kozminski, 487 U.S. 931, 952 (1988); see Brogan v. San Mateo
County, 901 F.2d 762, 764 (9th Cir. 1990) (state work program
encouraged employment and did not violate the Thirteenth
Amendment because person had alternative to performing
labor).
First, Plaintiff claims that he was required to perform the
work of others under the threat of bodily harm. However, he
fails to demonstrate how he was forced to work by the use or
threat of coercion because he claims that "these damages... .
occurred prior to any damages Tahara might have suffered as
the result of the beating by Bruce Perry." Motion at 2 (emphasis
added). Moreover, Plaintiff does not contend that he was forced
to work without pay, for reduced pay, or even that he was not
paid overtime for any overtime work he performed. "[I]n
general, the defense against oppressive hours, pay, working
conditions, or treatment is the right to change employers."
United States v. Mussry, 726 F.2d 1448, 1451 (9th Cir. 1984)
(quoting Pollock v. Williams, 322 U.S. 4, 17-18, (1944)).
Notwithstanding this, Plaintiff mischaracterizes and
belittles the meaning and history behind the Thirteenth
Amendment with his argument that involuntary servitude is not a
“personal” injury. To support the claim that he has standing
under RICO, Plaintiff ineffectively argues that involuntary
servitude is merely an economic injury. The lengthy history and
purpose behind the amendment demonstrate otherwise. See
United States v. Kozminski, 487 U.S. 931, 942 (1988) ("[t}he
primary purpose of the Amendment was to abolish the institution
of African slavery as it had existed in the United States at the
App. D-6
b. oe Pe. ae ee ee ee,
time of the Civil War, but.the Amendment was not limited to
that purpose."); Williams v, City of New Orleans, 729 F. 2d
1554, 1578 (Sth Cir. 1984) (Wisdom, J., concurring and
dissenting) (abolition of slavery was intended to create universal
civil freedom); Steirer v. Bethlehem Area School District, 789
F. Supp. 1337, 1342 (D. Penn. 1992) (finding intent of
Thirteenth Amendment was to abolish slavery in all forms and
all its badges and incidents); Boblin v. Board of Education, 403
F. Supp. 109S (D. Hawaii 1975) (certain forms of servitude do
not violate the dictates of the Thirteenth Amendment).
Commonwealth of Pennsylvania v. Local Union No. 542, 347
F. Supp. 268, 300 (E.D. Penn. 1972) ("Thirteenth Amendment
was not merely abolishing the physical cruelties of slavery, but
its purpose was to also eradicate those "badges and incidents of
slavery.’”)
Not only has Plaintiff utterly failed to demonstrate any
manifest error of law or fact regarding his federal RICO claim,
but Plaintiff has not given this court any justifiable basis to
reconsider its prior order on this issue.
Il. Diversity Jurisdiction
Plaintiff apparently dislikes the fact that the court sue
sponte raised the issue of whether diversity jurisdiction existed
in this case. However, it is clear that if a question of
jurisdiction is not raised by the parties, a court is to raise the
lack of subject matter jurisdiction on its own motion. See Fed.
R. Civ. P 12(h)(3); Insurance Corp. of Ireland. Lid. v.
Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982);
Sinclair v, Spatocco, 452 F.2d 1213, 1213 (gth Cir. 1972), cert.
denied, 409 U.S. 886 (1972) ("trial court has discretion to
determine jurisdictional facts itself"). In addition, a party’s
concession to diversity jurisdiction is not determinative that such
ae am. — 452 F. ad at A219; United Food and
Square, Inc. 30 F. 3d 298, 301 Ond Cir. 1994). This court
raised the question of jurisdiction because it appeared from the
App. D-7
record that-complete diversity did not exist in this case. See
February 25, 1997 Order at 14-15. The burden of proof is on
the party asserting jurisdiction to support its allegations with
competent proof. United Food, 30 F.3d at 301.
A. Removal Jurisdiction
Defendants based removal jurisdiction on diversity and a
federal question raised by Plaintiff's federal RICO claim. The
court notes first that Defendants did not properly remove based
on diversity. It is a well-settled point of law that there are two
limitations to removal of diversity cases: (1) none of the
defendants may be a citizen of the state in which the district
court is located, and (2) diversity must exist at the time the
original action was filed as well as at the time the petition for
removal is filed. Kaneshiro v. North American Co. for Life
and Health Ins., 496 F. Supp. 452 (D. Hawaii 1980). Because
Matson, McCabe and ILWU were and are citizens of the State
of Hawaii, removal on diversity grounds is precluded. In
addition, after an examination of Plaintiff's RICO claim
demonstrated that jurisdiction could not be based upon that
claim, the court concluded that Defendants’ removal on either of
these bases was flawed.
B. Complete Diversity
Notwithstanding Defendants’ faulty removal, Plaintiff
claims that complete diversity exists. He asserts that he is not a
Hawaii citizen, but rather, a citizen of Arizona. Citizenship is
determined by an individual’s domicile, and a person is
domiciled in a location where he has established a "fixed
habitation or abode in a particular place, and [an intent]* to
* The key to domicile is the intent element. Carter v. McConnel,
576 F.Supp. 556, 558 (D.Nev. 1983). However, intent should be
distinguished from "motive." A motive for one’s domicile is
irrelevant unless it bears on the issue of intent. Williamson v.
App. D-8
remain there permanently or indefinitely." Lew v. Moss, 797
F.2d 747, 749-50 (9th Cir. 1986). However, there is a
presumption in favor of an established domicile as opposed to a
newly acquired one. Id. at 751; see also Duff v. Beaty, 804 F.
Supp. 332, 335 (N.D. Ga. 1992) ("presumption exists against a
newly acquired domicile and in favor of the ’old’ domicile.").
The burden of proof for one seeking to establish a change in
domicile is a heavy one. White v. All America Cable and
Radio. Inc., 642 F. Supp. 69, 72 (D.P.R. 1986) (plaintiff who
claims to have changed domiciles bears a heavy burden). A
plaintiff must produce enough evidence to substantiate claim of a
change in domicile to withstand a directed verdict. Lew, 797
F.2d at 751.
However, the Ninth Circuit has found that several factors
must be considered in determining a party’s domicile for
purposes of establishing citizenship: (1) current residence; (2)
voting registration and voting practices; (3) location of personal
and real property; (4) location of brokerage and bank accounts;
(5) location of spouse and family; (6) membership in unions and
other organizations; (7) place of employment or business; (8)
driver’s license and automobile registration; (9) and payment of
taxes. Id. at 750. In situations involving a party who has
recently changed residence, courts often look to objective indicia
of intent. Id. Such cases usually involve an individual who has
recently moved from one state to another without establishing
ties to the new state or cutting previous ones. Abott v. United
Venture Capital. Inc., 718 F. Supp. 823, 826 (D. Nev. 1988).
Plaintiff claims that his Arizona driver’s license and
voter registration effectively prove that his domicile is Arizona
for purposes of diversity jurisdiction. This is the only evidence
Osefiton, 232 U-S- 619, 625 (1914); Heinz v. Havelock, 757 F.Supp.
1076 (C.D. Ca. 1991) (motive for change in domicile is irrelevant if
move and intent to remain are bona fide.)
App. D-9
produced by Plaintiff.* Plaintiff has not argued that his
automobile registration, bank accounts, family location, location
of job, union membership or other indicators demonstrate
Arizona citizenship. Taken together, these factors would be
indicative of an intent to remain in Arizona. On the contrary,
Defendant McCabe has come forth with evidence negating
indications that Plaintiff has such an intent.
This suit was filed on March 18, 1996. Apparently,
Plaintiff made several conveyances of real property on the day
of and months after the suit was filed. For the purposes of those
conveyances, Plaintiff listed the Honolulu address he has had for
years. See Memo in Opp. at 6; Exhibits "A-F". In addition,
the 1996-1997 telephone directory lists Plaintiff at the 1028
Matzie Lane address. Id. Id. Apparently, the tec:ephone number
listed for his Honolulu address is still operative. Id.
In response, Plaintiff argues that he moved to Arizona
under protective custody because of “the danger that I’m in due
to me trying to convict the person that assaulted me March 30,
1996 . . ." See Reply, Exhibit "B." He further states that "I
would not return my permanent residence to Hawaii even if I
was not under protective custody as I do not intend to live in a
place where my personal safety is threatened." See id., Tahara
Affidavit at 2. However, the question is not whether Plaintiff
intends to move back to Hawaii, but rather, wheitier he intends
to remain in Arizona. A party who undergoes a change in
residence involuntarily or by constraint, as a general rule,
retains the prior domicile. Stifel vy. Hopkins, 477 F.2d 1116,
1121 (6th Cir. 1973). A person cannot be said to have acquired
a domicile of choice in a place if located there by virtue of
* The court finds validity in McCabe’s argument that the driver’s
license and voter registration should be considered superficial because
they are easy to create at little expense or inconvenience. Memo in
Opp. at 5; Leon v. Caribbean Hosp. Corp., 848 F.Supp. 317, 318
(D.P.R. 1994).
App. D-10
Fe UN eee ee
RPS ee ae ee Le ee se eee ee eer
physical compulsion. Id.; Hiramatsu v. Phillips, 50 F. Supp.
167, 168 (S.D. Cal. 1943); see e.g.: Wendel v. Hoffman, 24 F.
Supp. 63 (D.C.N.J. 1938) (material witness under protective
Custody did not change domicile when relocated to different
State). Therefore, if Plaintiff was, in fact, forced to relocate
under protective custody for fear of his safety pending his
testimony in the criminal trial, he has not evidenced an intent to
make Arizona his domicile.‘ This court finds no reason to
reconsider the previous ruling that subject matter jurisdiction
based on diversity is lacking.
Il. Complete Preemption
In Defendant ILWU’s response to Plaintiff's Motion for
Reconsideration, it argues that the court has subject matter
jurisdiction over Plaintiff's state law claims because they are
preempted by § 301 of the LMRA.” In ILWU’s Motion to
Dismiss filed on August 9, 1996, it argued as a defense that
Plaintiff's state law claims should be dismissed because they
were preempted by § 301 of LMRA. Presumably, because
ILWU believed that removal was proper under Plaintiff's RICO
claim and diversity jurisdiction, it never before raised the
question of subject matter jurisdiction based on preemption of
* Although Plaintiff asserts that the decision to relocate to Arizona
was his own, such representations carry little weight. Lew, 797 F.2d
at 750 ("statement of intent are entitled to little weight when in
conflict with facts."). Moreover, "[iJntent, which is of its very nature
voluntary cannot co-exist with compulsion." Stifel, 447 F.2d at 1121.
” Plaintiff contends that because Defendant did not file a motion for
reconsideration itself, its arguments should not be considered by the
court. In the alternative, Plaintiff requests that the court review
Plaintiff's response to Defendant’s earlier motion to dismiss where the
issues were previously raised. The court chooses the latter.
App. D-11
Plaintiff's state law claims.* Because the preemption issue
concerns whether this court may properly exercise subject
matter jurisdiction in this case, the court will address the
argument.
Defendant ILWU contends that the instant case falls
within the federal question jurisdiction of this Court, as the case
"arises under" federal law, within the meaning of 28 U.S.C. §
1331.’ Under the “well-pleaded complaint rule," a case arises
under federal law only when a federal question is presented on
the face of the plaintiff's properly pleaded complaint.
Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64
(1987); Caterpillar. Inc. v. Williams, 482 U.S. 386, 392 (1987);
Whitman v. Raley’s, Inc., 886 F.2d 1177, 1180 (9th Cir. 1989).
A defendant’s assertion that federal law preempts the plaintiff's
state law claims does not ordinarily give rise to federal question
jurisdiction. Because preemption is a defense, it does not
appear on the face of the plaintiff's well-pleaded complaint.
Caterpillar, 482 U.S. at 393; Whitman, 886 F.2d at 1180.
An exception to the above principles applies when
Congress "so completely pre-empt[s] a particular area that any
civil complaint raising this select group of claims is necessarily
federal in character." Taylor, 481 U.S. at 63-64; Buster v.
* As the Ninth Circuit explained in Young v. Anthony’s Fish
Grottos, Inc., 830 F.2d 993, 997 (9th Cir. 1987), “[e]ven when
federal law preempts state law, a state law claim may not be removed
unless federal law also supplants it with a federal claim.”
* Title 28 U.S.C. § 1331 provides:
§ 1331. Federal Question
The district courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the United
States.
App. D-12
Greisen, 104 F.3d 1186, 1188 (9th Cir. 1997). State law claims
falling within this category are removable to federal court.
Taylor, 481 U.S. at 66-67.
In the instant case, beyond Plaintiff's statutory claims of
RICO and LHWCA, Plaintiff asserted only state law tort claims.
Defendant ILWU’s assertion that section 301 preempts certain of
these claims is insufficient, without more, to invoke the court’s
federal question jurisdiction. Defendant ILWU must establish
that section 301 “completely preempts" Plaintiff's claims.
To determine whether section 301 preempts the state law
Claim the court must inquire whether “application of state law
"requires the interpretation of a collective bargaining agreement’
or substantially depends upon analysis of the terms of an
agreement made between the parties in a labor contract.’"
Newberry v. Pacific Racing Ass’n, 854 F.2d 1142, 1147 (gth
Cir. 1988) (citations omitted). However, if the state claim
"*confers nonnegotiable state-law rights on employers or
employees ind=pendent of any right established by contract,’ the
claim is not preempted. A state law claim is independent for
the purposes of Section 301 if ’resolution of . . . [it] does not
require construing the collective bargaining agreement.’
However, if ’evaluation of the . . . claim is inextricably
intertwined with consideration of the terms of the labor
contract,’ it is preempted and may be removed to federal court."
Hyles v. Mensing, 849 F.2d 1213, 1216 (9th Cir. 1988)
(citations omitted). See also, Young v. Anthony’s Fish Grottos,
Inc., 830 F.2d 993 (9th Cir. 1987).
A. Intentional Tort and Emotional
Distress Claims
Plaintiff repeatedly cites Hayden v. Reickerd, stating that
his intentional tort claims are based on the “atmosphere of
intimidation and violence created and fostered by the Union
which were wrongful and could in no manner arise out of or
relate to the Collective Bargaining Agreement." Memo in Reply
App. D-13
at 4. In Hayden, the plaintiff asserted two distinct causes of
action, battery and retaliation for union activities. The court
stated that "[w]hatever the parties’ rights and duties under their
collective bargaining agreement, they could not possibly have
negotiated infringement of Hayden’s state law right to be free
from battery." Hayden, 957 F.2d 1509. The court based its
decision on the premise that the battery claim rested on a
nonnegotiable state right which did not turn on an interpretation
of the collective bargaining agreement ("CBA"). Id.
Moreover, Plaintiff cites Lingle v. Magic Chef, Norge
Division, 486 U.S. 399 (1988) in support of his argument.
Lingle concerned a retaliation claim in which the plaintiff sued
her employer, alleging a cause of action under state tort law that
she had been discharged from her employment because she filed
a workers’ compensation claim. The Supreme Court held that
the claim was not preempted by § 301 even though there was a
CBA which forbade discharge for other than just cause.
The rationale behind both decisions was that a CBA
cannot authorize intentional wrongdoings such as a battery or
retaliatory discharge committed by the union. In this case, the
State of Hawaii has an interest in protecting the public from
torts such as assault and battery, independent of the employment
relationship.
As did the courts in Hayden and Lingle, this court
similarly finds that Plaintiff's state law claims of assault,
battery, and false imprisonment concern conduct not of the type
regulated by the CBA, and hence those claims are not
preempted.'® Moreover, the court finds that Plaintiff’s claims
The court will note that ILWU has not argued that Plaintiff's
assault and battery claims are preempted. With respect to Plaintiff's
intentional tort claims, ILWU argues only that the claims of
interference with prospective advantage and intentional infliction of
emotional distress are preempted.
App. D-14
of intentional and negligent infliction of emotional distress are
not preempted to the extent that they arose from the same
aforementioned intentional conduct which is not covered by the
CBA. See Young, 830 F.2d at 1002 (citing Tellez v. Pacific
Gas & Elec., Co., 817 F.2d 536, 539 (9th Cir. 1987)
(emotional distress claims not preempted because they arose
from conduct not covered by the collective agreement)).
As for Plaintiff's claim for interference with prospective
advantage, he argues that by reporting his identity to Perry,
knowing that it would sustain an adverse effect on his economic
interest in continuing to work, Defendants interfered with his
prospective advantage.
The CBA requires that any disciplined employee be told
“the reason for his discipline or discharge in writing," and gives
disciplined employees rights to due process in pursuing a
grievance. Motion to Dismiss at 7; Longshore Agreement §§
16.01, 25.07. Therefore, depending upon the interpretation of
the CBA, ILWU’s reporting of Plaintiff’s identity may have
been mandated by its own terms. The court finds that
Defendant ILWU’s reporting of Plaintiff's identity is
inextricably intertwined with the CBA as it governs the union’s
obligations to its members in the context of disciplinary matters.
Therefore, Plaintiff's claim for interference with prospective
advantage is preempted by § 301. The court finds however,
that none of Plaintiff's other intentional tort claims and
emotional distress claims are preempted.
B. Duty to Provide a Safe Workplace
Defendant ILWU argues that the duty to provide a safe
workplace is preempted. ILWU contends that under Hawaii law,
labor unions have no duty to provide a safe workplace and
consequently, any duty ILWU has to provide a safe workplace
would have to be assumed within the CBA.
App. D-15
It is true that under Hawaii law, only employers are
obligated to provide a safe workplace. Michel v. Valdastri,
Lid., 59 Haw. 53, 56 (1978). In Electrical Workers v. Hechler,
a plaintiff alleged that her union had a duty to ensure a safe
workplace. The Court noted that such a duty was one without
existence independent of the CBA because unions were not
obligated to provide a safe workplace under Florida common
law. The Court found that resolution of the tort claim would
require a court to determine whether the CBA in fact placed an
implied duty of care on the union, and the nature and scope of
that duty. Hechler, 481 U.S. 851 (1987). Therefore, the tort
claim was not found to be independent of the CBA.
In the instant case, Plaintiff cannot assert that Hawaii law
imposes upon labor unions a duty to provide a safe workplace.
Any such duty, if it exists, would have to be assumed by the
union In the CBA. Because this claim is not independent of the
CBA, and would require its interpretation to determine the
applicability of a duty to provide a safe workplace, this court
finds that it is preempted by § 301.
C. Duty to Warm
ILWU correctly argues that Hawaii does not recognize a
general duty to warn others of harm. Cuba v. Fernandez, 71
Haw. 627, 632 (1990). A party only has a duty to warn another
of harm if a special relationship exists between them. Id.
Hawaii law imposes a duty to warn in relationships between: (1)
common carriers and their passengers: (2) innkeepers and their
guests; (3) landowners who hold their property out to the public
and their guests; and (4) one who is required by law to take or
who voluntarily takes the custody of another and the person
under his custody. Id. Plaintiff does not assert that any of these
special relationships governed by Hawaii law exist, and because
Hawaii law does not impose such a duty on the union, any duty,
if 20 it exists, would have to be assumed under the CBA.
Similar to Plaintiff's claim for duty to provide a safe workplace,
App. D-16
RE ee a an a ee ee cn
his claim for duty to warn is not independent of the CBA, and it
is therefore preempted by section 301.
D. Duty not to Dispatch Perry
Plaintiff argues that ILWU had a duty not to dispatch
Perry to the job “because he was a known incompetent and unfit
employee because of uncontrolled violent tendencies." First
Amended Complaint at 30 % 176. Plaintiff insists that ILWU’s
failure to discharge or transfer Perry to protect other union
members was a breach of its duty to Plaintiff.
Under Hawaii law, unions do not owe a duty of care to
screen employees. Janssen v. American Hawaii Cruises, 731
P.2d 163, 166 (Haw. 1987). In Janssen, the Hawaii Supreme
Court held that the union had no duty to screen an employee
who sexually assaulted a co-worker, even where the union knew
that he was a convicted felon, and still referred him for the
position.
In the instant case, Plaintiff argues that ILWU had a duty
to determine that Perry was dangerous and should have
“discharged or transferred" Perry to protect other union
members. In other words, Plaintiff seeks to impose a duty upon
ILWU to screen union members prior to dispatch. Hawaii
imposes no such duty, however, the CBA governs the
responsibilities for dispatching and hiring employees. Motion to
Dismiss at 9 n.5. It appears that even under the CBA, the
employer bears the responsibility for hiring and dispatch. Id.
Because Hawaii law does not impose a duty upon unions co
screen employees, such a duty, if it exists, would be imposed by
the CBA. The court likewise finds that Plaintiff's "duty not to
dispatch" claim is preempted under section 301.
E. State RICO Claim
Plaintiff's state RICO claim is based upon his allegation
that ILWU and other Defendants engaged In a practice of
App. D-17
“running away," in which longshore workers left the job-sites in
order to be paid for work not performed. In order to sustain a
claim under RICO a plaintiff must demonstrate conduct of an
enterprise through a pattern of racketeering activity. 18 U.S.C.
§ 1962(c). However, where the predicate acts underlying a
RICO claim are founded on the provisions cf a CBA, or are
substantially dependent upon an analysis of the CBA, the RICO
claim must be dismissed as preempted. Hubbard v. United
Airlines. Inc., 927 F.2d 1094, 1097 (9th Cir. 1991) (finding
RICO claim preempted where plaintiff based her RICO claims
on predicate acts that involved violation of a right created by the
CBA).
Section 8.01 of the CBA provides:
Six (6) hours shall constitute a day’s work. . . .
However, an employee may leave his job for good and
sufficient cause providing he first reports his intention to
leave and his reasons for leaving to his foreman and
continues with his work until his assigned replacement
arrives.
Moreover, section 13.01 of the CBA permits the company to
waive the need for a replacement. Reply Memo at 9. Thus, the
express provisions of the CBA permit employees to leave the
job site, on occasion and receive pay for a particular shift.
Because the predicate acts underlying the RICO claim are rights
created by the CBA, the claim is inextricably intertwined with
the provisions of the CBA. As such, the court finds that
Plaintiff's state RICO claim is preempted by section 301.
F. Federal Question Jurisdiction
The court finds that the complete preemption of
Plaintiff's claims alleging: duty to provide a safe workplace,
duty to warn, duty not to dispatch, interference with prospective
advantage, and state RICO claim, confers federal question
jurisdiction upon this court. Although neither the Plaintiff nor
App. D-18
| mm a a tone emcee
any of the Defendants asserted subject matter jurisdiction based
upon the doctrine of complete preemption, the court finds that
such jurisdiction existed due to Plaintiff’ s preempted claims.
See Brockman v. Merabank, 40 F.3d 1013, 1017 (9th Cir.
1994) (finding that federal courts retain subject matter
jurisdiction even after basis for removal is dismissed if a federal
question remains).
G. Dismissal of Preempted Claims
In certain instances, state law claims which are
removable as preempted under section 301 may later be
dismissed for the plaintiff’s failure to exhaust contractual
grievance procedures. i
Co., 740 F.2d 1468 (9th Cir. 1984), overruled on other grounds
by, Vi i , 828 F.2d 563
vicent v. Trend Western Technical Corp.
(9th Cir. 1987). In fact, “[c]ollective bargaining agreements
customarily provide for grievance and arbitration procedures,
and unless an employee can show that he was not fairly
represented by his union, grievance and arbitration is the
employee’s exclusive remedy for breach of the agreement." Id.
at 1472.
In the instant case, ILWU sought 12(b)(6) dismissal
based on preemption of Plaintiff’s state law claims because
"[Plaintiff] has ignored the remedies under the Union
Constitution and by-laws." Plaintiff has not disputed this fact.
Because Plaintiff has not exhausted his contractual remedies,
and he has not alleged that ILWU breached its duty of fair
representation, “he therefore cannot maintain a section 301 suit
independent of the procedural requirements of the collective
bargaining agreement." See Olguin, 740 F.2d at 1476.
In Dielsi v. Falk, 916 F. Supp. 985 (C.D. Cal. 1996), a
district court dismissed without prejudice state law claims which
were completely preempted by federal copyright law as remand
to state court would be meaningless because federal courts have
exclusive jurisdiction over copyright claims. The court followed
App. D-19
the logic, of other courts which dismissed without prejudice
state law claims completely preempted by ERISA when the
plaintiffs’ remedies had not been exhausted."' Id. at 994-95.
However, in the instant case, exhaustion would be futile because
the statute of limitations has run on Plaintiff’s section 301
coe, rage om time-barred. See DelCostello v.
samsters, 462 U.S. 151, 170-72
( 1983) Gcieencail statute of limitations governing section 301
claims). Nevertheless, this court cannot simply ignore the
statute of limitations by addressing the merits Plaintiff's section
301 claims. Thus, because exhaustion would be futile, this
court has no choice but to DISMISS Plaintiff's preempted claims
WITH PREJUDICE.
Because the court dismisses Plaintiff's preempted LMRA
claims with prejudice, his remaining state law claims are hereby
REMANDED to state court pursuant to 28 U.S.C. § 1367(c)(3)
(supplemental jurisdiction over state claims is discretionary if
original federal claim 1s dismissed).'*
" The court notes that the Dieisl court stated that "If exhaustion is
not futile, a federal court will refrain from exercising jurisdiction on
ripeness grounds and dismiss the preempted ERISA claim without
prejudice." Id. at 994 (emphasis added).
? Remands to state court are governed by 28 U.S.C. § 1447(c)
which provides:
If at any time before final judgment It appears that the
district court lacks subject matter jurisdiction, the case
shall be remanded. An order remanding the case may
require payment of just costs and any actual expenses,
including attorneys fees, incurred as a result of
removal.
As this order concerning Plaintiff's Motion for
Reconsideration constitutes final judgment In this case, remand is
proper.
App. D-20
IV. Admiralty Jurisdiction
As an afterthought in his reply to Defendants’ opposition,
Plaintiff argues that the issue of admiralty jurisdiction was
incorrectly decided. Plaintiff did not raise this in his motion for
reconsideration, nor was the argument raised in response to an
argument made by any of the Defendants.
Local Rule 220-4 provides as follows. "A reply must
respond only to arguments raised in the Opposition. Any
arguments raised for the first time In the reply shall be
disregarded." L.R. 220-4. Plaintiff Clearly disregarded the
mandate of this rule, and as such, the court sees no reason to
revisit Plaintiff's contention.”
V. Certification
Plaintiff requests certification of the RICO question
under Rule 54(b), in the event that the court finds diversity
jurisdiction but denies the RICO claim. Because the court finds
diversity to be lacking In this case, Plaintiff's request for
certification is DENIED.
CONCLUSION
For the reasons stated above, the court MODIFIES the
February 20, 1997 Order and DISMISSES Plaintiff's Claims for
Duty to Provide a Safe Workplace, Duty to Warn, Duty to
* The court will nevertheless note that Plaintiff's admiralty
argument Is entirely without significance. This court did cite the case
of Owens-Illluols Inc. v. United States Dist. Court, 698 F.2d 967, 970
(9th Cir. 1983), however, the February 20, 1997 Order focused upon
whether Plaintiff's tort claims had sufficient "maritime flavor" to
invoke admiralty jurisdiction. Plaintiff's argument is wholly without
merit as he cannot demonstrate that his state tort claims have even a
minuscule "maritime flavor."
App. D-21
Dispatch, Interference with Prospective Advantage, and State
RICO claim against ILWU WITH PREJUDICE, REMANDS
Plaintiff’s Remaining State Claims to State Court and DENIES
Plaintiff's Request for Certification.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, APR 30 1997.
/s/ David Alan Ezra
DAVID ALAN EZRA
UNITED STATES
DISTRICT COURT
Civil Nos. 96-00284 DAE, 96-00412 DAE, 96-00410 DAE;
ORDER REGARDING PLAINTIFF’S MOTION FOR
RECONSIDERATION
App. D-22
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
QUENTIN HIDEYUKI TAHARA, NO. 96-00284 DAE
96-00412 DAE
Plaintiff, 96-00410 DAE
VS.
)
)
)
)
MATSON TERMINALS, INC.; )
MATSON NAVIGATION COM- )
PANY, INC.; McCABE )
HAMILTON & RENNY, CO., )
LTD.; INTERNATIONAL LONG-_ )
SHOREMEN AND WAREHOUSE- )
MEN’S UNION, LOCAL 142; )
BRUCE GEORGE PERRY; and )
HENRY KREUTZ, JR., In )
Personam; and DOE VESSELS 1-__—i+?)
XX, In Rem, JOHN DOES 1-20; )
MARY DOES 1-10, DOE )
CORPORATIONS 1-20; DOE )
PARTNERSHIPS 1-20; DOE )
ASSOCIATES 1-20; DOE )
GOVERNMENTAL AGENCIES 2- )
20; DOE STATES and OTHER )
ENTITIES 1-20, )
)
)
)
Defendants.
ORDER GRANTING DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT ON FEDERAL
RICO CLAIM AND DISMISSING WITHOUT PREJUDICE
ALL REMAINING CLAIMS FOR
LACK OF SUBJECT MATTER JURISDICTION
App. E-1
Pursuant to Local Rule 220-2(d), the court finds this
matter suitable for disposition without a hearing. After
reviewing Defendants’ motions and the supporting and opposing
memoranda, the court GRANTS Defendants’ Motion for
Summary Judgment on the federal RICO claim and DISMISSES
WITHOUT PREJUDICE all remaining claims for lack of
subject matter jurisdiction.
BACKGROUND
Plaintiff Quentin Hideyuki Tahara ("Plaintiff") and
Defendant Bruce Perry ("Perry") were members of the
International Longshoremen and Warehousemen’s Union Local
142 ("ILWU"), and were employed by Defendant McCabe,
Hamilton & Renny Co. ("McCabe"), a labor contractor
operating on the Honululu waterfront. Defendant McCabe
contracts with Defendant Matson Terminals ("Matson") to
provide Matson with workers to load and unload ships, and
McCabe in turn has a collective bargaining agreement with
ILWU to provide workers for Matson and other companies.
While working for McCabe, Plaintiff observed what he
believed to be a longstanding practice of longshore workers
"running away” from job sites in order to be paid for work not
performed.
On March 10, 1994, while Plaintiff was working for
McCabe at a Matson terminal, he observed Perry arrive at the
job site for work and leave without permission from the
supervisor. He confidentially reported this observation to
employees at Matson, who in turn reported it to McCabe.
Perry’s pay was docked as a result.
The ILWU and Defendant Henry Kreutz, Jr. ("Kreutz"),
a McCabe employee and union representative for ILWU,
allegedly “used the authority and power of the union to learn
who reported Perry of [Plaintiff's] identity." Kreutz confronted
Plaintiff in a hostile manner, reprimanded him for reporting
App. E-2
ee
Perry’s actions and told him that Perry was on an "excusable
leave."
On March 30, 1994 Perry allegedly accosted Plaintiff in
the Pier 52 parking lot at the Matson Terminal, and demanded
to know why Plaintiff had caused Perry’s pay to be docked. In
the ensuing "fray" Perry assaulted Plaintiff. In assaulting
Plaintiff, Perry allegedly believed he was the agent of his
employer McCabe and ILWU because Perry intended his actions
in part to benefit McCabe and ILWU by enforcing the "running
away" practice. After the assault, ILWU and the other
Defendants purportedly ratified and condoned the assault by
continuing to employ Perry and by paying him double time for
the shift in question.
Plaintiff subsequently filed a Complaint against all of the
Defendants, setting forth 24 separate counts on March 18, 1996,
and an amended complaint on March 27, 1996.
Counts 1 through 10 are for what are alleged to be
“intentional torts," including assault, battery, false
imprisonment, intentaonal infliction of emotional distress, and
intentional interference with economic advantage. In addition,
Plaintiff alleges “respondeat superior” liability of the union for
the actions of Kreutz, and a prima facie tort alleging that Kreutz
had insufficient justification for "discovering the identity of
[Plaintiff] as the "Whistle Blower’ and then revealing his identity
to Perry.”
Counts 11 through 21 of the Complaint allege various
negligent torts based upon a breach of a duty of due care, a duty
to provide a safe work place, a duty to warn Plaintiff of dangers
posed by Perry, negligent hiring and negligent infliction of
emotional distress. In Count 22, Plaintiff alleges similar
neglige”t torts as violations of the LHWCA against Matson.
App. E-3
Counts 23 and 24 allege violations of the federal and
state RICO statutes. Plaintiff asserts subject matter jurisdiction
pursuant to 28 U.S.C. §§ 1331, 1332, 1333 and 1367.
Defendant Matson moves for Summary Judgment on grounds
that Plaintiff's negligence and intentional tort claims are barred
because they are governed by the Longshore and Harbor
Workers’ Compensation Act ("LHWCA"), and that Plaintiff's
RICO claim is barred because Plaintiff fails to meet the
requirements for federal and state RICO claims.
Defendant ILWU moves to dismiss Counts 4, 8, 10-15,
2021, 23 and 24 on the grounds that Plaintiff’s tort claims are
preempted by Labor Management Relations Act ("LMRA") §
301 and that Plaintiff fails to state a claim under RICO.
Defendant McCabe moves for partial summary judgment
because Plaintiff does not have standing to sue for RICO and
Plaintiff's state claims are preempted by the National
Management Relations Act ("NMRA").
Plaintiff filed replies and memoranda in opposition to
Defendants’ motions. On November 4, 1996, Plaintiff filed a
cross-motion for summary judgment on the issues of whether
Matson or McCabe were Plaintiff's employer for purposes of
the LHWCA and whether Plaintiff has standing to pursue a civil |
RICO claim. .
ST. ARD OF RE |
I. Motion to Dismiss
A motion to dismiss will be granted where the plaintiff
fails to state a claim upon which relief can be granted. Fed. R.
Civ. P. 12(b)(6). For the purposes of a 12(b)(6) motion, |
"[rjeview is limited to the contents of the complaint." Clegg v.
Cult Awareness Network, 18 F.3d 752, 755 (9th Cir. 1994)
App. E-4
A complaint should not be dismissed “unless it appears
beyond doubt that plaintiff can prove no set of facts in support
of [her] claim which would entitle [her] to relief." Buckey v.
County of Los Angeles, 968 F.2d 791, 794 (9th Cir. 1992)
(quoting Love v. United States, 915 F.2d 1242, 1245 (9th Cir.
1989)) (further citations omitted). All allegations of material
fact are taken as true and construed in the light most favorable
to the plaintiff. Id. Civil rights complaints are to be liberally
construed. Id, (citing Gobel v. Maricopa County, 867 F.2d
1201, 1203 (9th Cir. 1989)).
To the extent, however, that "matters outside the
pleadings are presented to and not excluded by the court, the
motion shall be treated as one for summary judgment." Fed. R.
Civ. P. 12(b); Del Monte Dunes at Monterey. Lid. v.
Monterey, 920 F.2d 1496, 1507 (9th Cir. 1990).
' A motion to dismiss will be granted where the plaintiff
fails to state a claim upon which relief can be granted. Fed. R.
Civ. P. 12(6)(6). A complaint should not be dismissed “unless
it appears beyond doubt that plaintiff can prove no set of facts in
support of his claim which would entitle him to relief." Love v.
United States, 915 F.2d 1242, 1245 (9th Cir. 1989); Buckey v.
County of Los Angeles, 968 F.2d 791, 794 (Sth Cir. 1992). Al
allegations of material fact are taken as true and construed in the
light most favorable to the plaintiff. Love, 915 F.2d at 1245.
II. Motion for Summary Judgment
Fed. R. Civ. P. 56(c) provides for summary judgment
when:
. . . the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled
to a judgment as a matter of law.
App. E-5
The movant bears the initial burden of “identifying . . . those
portions of the material on file that it believes demonstrates the
absence of any genuine issue of material fact." T.W. Elec.
Sery.. Inc. v. Pacific Elec. Contractors Ass’n., 809 F.2d 626,
630 (9th Cir. 1987) (citing Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986)). If the movant has met its burden, then
"the nonmoving party must show that there are ’ genuine factual
issues that properly can be resolved only by a finder of fact
because they may reasonably be in favor of ei party.’"
California it Bl _vV. F
818 F.2d 1466, ee (9th Cir. 1987) rm Aaiorxe y,
Liberty Lobby. Inc., 106 S. Ct. 2505, 2511 (1986)), cert.
denied, 108 S. Ct. 698 (1988). When the “evidence” produced
by each side conflicts, "the judge must assume the truth of the
evidence set forth by the opposing party with respect to that
fact." Inferences from the facts, disputed and undisputed alike,
must be drawn in the light most favorable to the opposing party.
T.W. Elec., 809 F.2d at 631. These genuine factual issues
must be supported by significant probative evidence.
Commodity Futures Trading Comm’n v. Savage, 611 F.2d 270,
282 (9th Cir. 1979). Hence, the nonmoving party may not
stand on its pleadings or merely assert it will controvert the
movant’s evidence at trial. See T.W. Elec., 809 F.2d at 630.
Simple disagreement about a material issue of fact, therefore, no
longer precludes the use of summary judgment. California
Architectural Bldg. Prod., 818 F.2d at 1468.
DISCUSSION
I. Defendant Matson’s Motion for Summary Judgment
Defendant Matson contends that Plaintiff's state law
claims are barred by the Longshore and Harbor Workers’
Compensation Act ("LHWCA"), 33 U.S.C. § 905(a). Matson
further argues for dismissal of Plaintiff's federal RICO claim on
the ground that.it excludes recovery for Plaintiff's alleged
personal injuries.
App. E-6
A. WwW ’ ion
Act
District courts have original and exclusive jurisdiction
over any civil case of admiralty or maritime law pursuant to 28
U.S.C. § 1333(1). Delta Country V Vv ;
986 F.2d 1260 (9th Cir. 1993). The initial inquiry is whether
Plaintiff's tort claims are within this court’s admiralty
jurisdiction. The Supreme Court has held that in evaluating
maritime tort claims, “the wrong must bear a significant
relationship to traditional maritime activity." Solano v. Beilby,
761 F.2d 1369, 1370 (9th Cir. 1985) (citing Executive Jet
Aviation. Inc, v. City of Cleveland, 409 U.S. 249, 253 (1972)).
The Ninth Circuit applies a two-part test to tort claims brought
within the maritime context. The first part of the maritime tort
test focuses on the place where the injury occurs. Martinez v.
, 904 F.2d 521, 522-23 (9th Cir.
1990). The second part of the test asks whether the alleged tort
has a sufficient nexus to traditional maritime activity,
considering four factors: (1) traditional concepts of the role of
admiralty law; (2) the function and role of the parties; (3) the
types of vehicles and instrumentalities involved; and (4) the
causation and nature of the injury suffered. Owens-Illinois Inc.
Vv i r W.
Tacoma, 698 F.2d 967, 970 (9th Cir. 1983).
The first part of the test is met. Plaintiff and Defendant
Perry were at the Pier 52 parking lot when Plaintiff arrived for
work. Plaintiff drove his car to a stall near the entrance gate to
the work area and away from Perry. Perry allegedly went
across the parking lot to Plaintiff's car, confronted him and told
him “we gonna fight now." Amended Complaint at 9 §38. It
was at that point that Plaintiff claims he was allegedly assaulted
by Perry. The injury occurred on the pier at the job site.
As for the second part of the test, traditionally the courts
have interpreted maritime injuries to include, for instance,
accidents which occur during the loading of cargo onto a vessel
App. E-7
om
by longshoremen. See Solano, 761 F.2d at 1371. The policy
behind the law is the "concern for providing remedies to those
confronting the dangers of maritime employment... ." Id.
(citing Austin v. Unarco Industries, 705 F.2d 1, 11 (1st Cir.
1983)). As in Solano, the relevant inquiry in the instant case is
"whether the injury was inflicted during the conduct of a
maritime service, such as loading cargo." Id. at 1372. Plaintiff
admits that his injuries were inflicted prior to Plaintiff's work
shift at the Matson Terminals facility, and therefore Plaintiff
was not injured while engaged in maritime activity. Moreover,
an assault by a co-worker is not an injury with sufficient
"maritime flavor" necessary to invoke jurisdiction under §
1333(1). The underlying tort bears no real relationship to
maritime service, commerce or navigation. Martinez, 904 F.2d
at 521 (9th Cir. 1990) (reversing district court’s dismissal of
admiralty claim because cleaning boilers of ships is routinely
necessary to the operation of the vessel). See also, H20
ions Inc. v. H z, 1996 WL 734770 (9th
Cir. 1996) (affirming dismissal of maritime core claim based on
finding that tort injury had no potential to disrupt maritime
commerce).
The Ninth Circuit has found, as does the court in this
case, that "[rjesolution of [Plaintiff's] tort claims does not
require the special expertise of a court in admiralty as to
navigation or water-based commerce, nor is there any federal
interest in uniformity of decision requiring the application of 10
federal substantive law." Sample v. Johnson, 771 F.2d 1335
(9th Cir. 1985) ("district court was thus correct in viewing the
intentional harm claim as involving little more than the state law
tort of intentional infliction of emotional distress and not an
admiralty claim at all."). The court finds that the court lacks §
1333 jurisdiction over Plaintiff's admiralty tort claims and
accordingly DISMISSES Plaintiff's admiralty claims.’
App. E-8
B. = Federal RICO Claim
Matson argues that Plaintiff's RICO claim fails because
he cannot demonstrate proof of concrete financial loss, as is
required for a plaintiff to have standing to sue under RICO.
However, Plaintiff claims that he has alleged three types of
injuries to business or property: (1) his lost ability to pursue his
profession, (2) the work he was required to perform for others
under the threat of bodily harm, and (3) his lost employment
while in protective custody awaiting the criminal trial of Bruce
Perry.
To support a claim under RICO Title 18 United States
Code section 1964(c) provides:
Any person injured in his business or property by reason
of a violation of section 1962 of this chapter may sue
therefor in any appropriate United States district court
and shall recover threefold the damages he sustains and
the cost of the suit, including a reasonable attorney’s fee.
18 U.S.C. § 1964(c) (emphasis added). The Ninth Circuit has
long established that “not all injuries are compensable under this
section." Oscar v. University Students Co-op. Ass’n., 965 F.2d
783, 785 (9th Cir. 1992). In fact, personal injuries are not
compensable under RICO. Id. The purpose behind Congress’
prohibition on recovery for personal damages is consistent with
its intention to “thwart the organized criminal invasion and
acquisition of legitimate business enterprises and property." Id.
at 786 (quoting Genty v. Resolution Trust Corp., 937 F.2d 899,
918-19 (3rd Cir. 1991)).
In Berg v. First State Ins. Co., 915 F.2d 460, 464 (9th
Cir. 1990), the Ninth Circuit adopted the Eleventh Circuit’s
approach holding that "as a matter of law, personal injury,
including emotional distress, is not compensable under section
1964(c) of RICO." In following the rationale of the Eleventh
Circuit in Grogan v. Platt, 835 F.2d 844 (11th Cir. 1988), this
App. E-9
Circuit determined that pecuniary losses stemming from personal
injuries are not compensable under RICO. Berg, 915 F.2d at
464.
In other words, "the phrase ’injured in his business or property’
excludes personal injuries, including the pecuniary losses
therefrom.” Grogan, 835 F.2d at 847.
In Plaintiff's cross-motion for summary judgment, he
provides little support for his claim of RICO standing. He
States that Plaintiff's neurosurgeon has found him to be
permanently blind in one eye. Plaintiff claims that his doctor
states that he should not operate heavy equipment due to his loss
of vision. These factors indicate that Plaintiff seeks
compensation for personal injuries. Although he claims that he
seeks compensation for the "rates of pay associated with various
economic opportunities” due to his reduced marketability,
Plaintiff has not demonstrated that the losses are more than
personal damages for which he seeks pecuniary compensation.
As the Grogan court acknowledged,
the pecuniary and non-pecuniary aspects of personal
injury claims are not so separated as the appellants would
have us accept; rather, loss of earnings, loss of
consortium, loss of guidance, mental anguish, and pain
and suffering are often to be found, intertwined, in the
same claim for relief.
ee
[T]hese statutes and cases suggest that pecuniary losses
are so fundamentally a part of personal injuries that they
should be considered something other than injury to
“business or property."
Grogan, 853 F.2d at 847. Plaintiff has failed to demonstrate
that the losses for which he seeks recovery are losses to business
or property as contemplated by RICO. In fact, Plaintiff's claim
of damages has no relationship to Congress’ intention to prevent
App. E-10
ESSE '' Xr ————
organized criminal invasion and acquisition of legitimate
business enterprises and property. Because Plaintiff lacks
Standing to pursue a federal RICO claim, the court GRANTS
Defendants’ Motions for Summary Judgment as to Plaintiff’ s
federal RICO claim.”
C. iversi isdiction
In addition to asserting federal question jurisdiction based
on RICO and tort claims under the LHWCA, Plaintiff argues
that this court has subject matter jurisdiction based upon
diversity of citizenship pursuant to § 1332.
Title 28 U.S.C. § 1332(a) empowers district courts with
original subject matter jurisdiction of “all civil actions where the
matter in controversy exceeds the sum or value of $50,000...
and is between . . . citizens of different States." A federal
court can exercise diversity jurisdiction over a matter in which
the plaintiff sues more than one defendant only if the plaintiff is
capable of suing each defendant individually. This rule, known
as the "requirement of complete diversity," calls upon the court
to dismiss all defendants from a diversity action who reside in
the same state as the plaintiff, and who are not indispensable
under Fed. R. Civ. P. 19. See Charles A. Wright et al.,
Federal Practice and Procedure § 3605 (2d ed. 1984).
In the present case, Plaintiff asserts that he is a citizen of
the State of Arizona and Defendants are corporations doing
business in the State of Hawaii and that the facts constituting
the subject of this lawsuit all took place in Hawaii. Amended
Complaint at 3-5.
Generally, the proponent of jurisdiction bears the burden
of proof in diversity cases. Lew v. Moss, 797 F.2d 747, 751
(9th Cir. 1986) (citing Resnik v. La Paz Guest Ranch, 289 F.2d
814, 819 (9th Cir. 1961)). Plaintiff claims he has been
employed by McCabe on tlie Honolulu waterfront for more than
ten years. Amended Complaint at 5 §20. He also claims that at
App. E-11
all times material herein, he was employed by McCabe and that
McCabe is a stevedoring company incorporated in Hawaii, and
is a corporation doing business in the State of Hawaii.
Amended Complaint at 3-4. Plaintiff provides no explanation
for how a person employed by a Hawaii corporation, who has
been working in Honolulu for ten years could be an Arizona
resident. It is well settled that "domicile" for purposes of
diversity is the location where a person has established a fixed
habitation in a particular place, and intends to remain there
indefinitely. Lew, 797 F.2d at 750. Moreover, courts have
created a presumption in favor of an established domicile as
opposed to a newly acquired one. Id. at 751. Therefore, even
if Plaintiff moved to Arizona recently, or sometime soon after
or before filing suit, he has not met the burden of establishing
Arizona domicile for purposes of diversity. Consequently, the
court finds that diversity jurisdiction is lacking in this case.
Because the court lacks federal question and diversity
jurisdiction over Plaintiff's claims, the court declines to assert
supplemental jurisdiction over Plaintiff's state tort and RICO
claims, and DISMISSES them for lack of jurisdiction.
Moreover, the court does not reach the merits Defendant
ILWU’s Motion to Dismiss and Defendant McCabe’s Motion
for Partial Summary Judgment as all of Plaintiff's remaining
claims have been dismissed for lack of jurisdiction.
CONCLUSION
For the reasons stated above, the court GRANTS all
Defendants’ Motions for Summary Judgment on the federal
RICO claim and DISMISSES WITHOUT PREJUDICE all
remaining claims against the Defendants for lack of subject
matter jurisdiction.
App. E-12
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, FEB 20 1997.
/s/'_ David Alan Ezra
DAVID ALAN EZRA
UNITED STATES
DISTRICT COURT
wiitith FLIGCVUK: alata V LAL SU ACTIN! St vt al.,
Civil Nos. 96-00284 DAE, 96-00412 DAE, 96-00410 DAE;
ORDER GRANTING DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT ON FEDERAL RICO CLAIM AND
DISMISSING WITHOUT PREJUDICE ALL REMAINING
CLAIMS FOR LACK OF SUBJECT MATTER
JURISDICTION.
’
1. Plaintiff's available remedies do not include recovery of workers’
compensation under the LHWCA as he is apparently as of late
receiving those benefits from Matson. However, Plaintiff did seek
remedies under “all other applicable maritime and tort law in the
premises." Amended Complaint at 2. Furthermore, the court
declines to excercise supplemental jurisdiction over Plaintiff's state
tort claims for reasons discussed in part C of this order.
2. The court declines to reach the merits of Plaintiff's state RICO
claim and resolves it, along with Plaintiff's other state claims in part
C of this order.
App. E-13
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
QUENTIN HIDEYUKI TAHARA, NO. 96-00284 DAE
96-00412 DAE
Plaintiff, 96-00410 DAE
VS.
MATSON TERMINALS, INC.:
MATSON NAVIGATION COM-
PANY, INC.; McCABE
HAMILTON & RENNY, CO.,
LTD.; INTERNATIONAL LONG-
SHOREMEN AND WAREHOUSE-
MEN’S UNION, LOCAL 142;
BRUCE GEORGE PERRY; and
HENRY KREUTZ, JR., In
Personam; and DOE VESSELS 1-
XX, In Rem; JOHN DOES 1-20:
MARY DOES 1-10, DOE
CORPORATIONS 1-20; DOE
PARTNERSHIPS 1-20; DOE
ASSOCIATES 1-20; DOE
GOVERNMENTAL AGENCIES 2-
20; DOE STATES and OTHER
ENTITIES 1-20,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
ORDER DENYING PLAINTIFF’S
CROSS MOTION FOR LEAVE TO
FILE A SECOND AMENDED COMPLAINT
Pursuant to Local Rule 220-2(d), the court finds this
matter suitable for disposition without a hearing. After
App. F-1
reviewing Plaintiff's Motion and the supporting and opposing
memoranda, the court DENIES Plaintiff’s Cross Motion for ~
Leave to File a Second Amended Complaint.
BACKGROUND
Plaintiff Quentin Hideyuki Tahara ("Plaintiff") and
Defendant Bruce Perry ("Perry") were members of the
International Longshoremen and Warehousemen’s Union Local -
142 ("ILWU"), and were employed by Defendant McCabe,
Hamilton & Renny Co. ("McCabe"), a labor contractor
operating on the Honolulu waterfront. Defendant McCabe
contracts with Defendant Matson Terminals ("Matson") to
provide Matson with workers to load and unload ships, and
McCabe in turn has a collective bargaining agreement with
ILWU to provide workers for Matson and other companies. .
While working for McCabe, Plaintiff observed what he
believed to be a longstanding practice of longshore workers
“running away” from job sites in order to be paid for work not
performed.
On March 10, 1994, while Plaintiff was working for
McCabe at a Matson terminal, he observed Perry arrive at the
job site for work and leave without permission from the
supervisor. He confidentially reported this observation to
employees at Matson, who in turn reported it to McCabe
Perry’s pay was docked as a result.
The ILWU and Defendant Henry Kreutz, Jr. ("Kreutz"),
a McCabe employee and union representative for ILWU,
allegedly “used the authority and power of the union to learn
who reported Perry of [Plaintiffs] identity." Kreutz confronted
Plaintiff in a hostile manner, reprimanded him for reporting
Perry’s actions and told him that Perry was on an "excusable
leave."
App. F-2
On March 30, 1994, Perry accosted Plaintiff in the Pier
52 parking lot at the Matson Terminal, and demanded to know
why Plaintiff had caused Perry’s pay to be docked. In the
ensuing "fray" Perry assaulted Plaintiff. In assaulting Plaintiff,
Perry allegedly “believed he was the agent of his employer
McCabe and ILWU because Perry intended his actions in part to
benefit McCabe and ILWU by enforcing the “running away"
practice.
After the assault, ILWU and the other Defendants
purportedly ratified and condoned the assault by continuing to
employ Perry and by paying him double time for the shift in
question. Plaintiff subsequently filed a Complaint against all of
the Defendants, setting forth 24 separate counts.
On November 15, 1996, Plaintiff filed a Cross Motion
for Leave to File a Second Amended Complaint. Defendant
McCabe filed a Memorandum in Opposition to Plaintiff's Cross
Motion on November 21, 1996. Defendant ILWU also filed an
Opposition to Plaintiff's Cross Motion on November 25, 1996.
STANDARD OF REVIEW
The Federal Rules of Civil Procedure provide that parties
should be freely permitted to amend their pleadings when
justice so requires:
A party may amend the party’s pleading once as a matter
of course at any time before a responsive pleading is
served or, if the pleading is one to which no responsive
pleading is permitted and the action has not been placed
upon the trial calendar, the party may so amend it at any
time within 20 days after it is served. Otherwise a party
may amend the party’s pleading only by leave of court or
by written consent of the adverse party; and leave shall
be freely given when justice so requires. . .
App. F-3
Fed. R. Civ. P. 15(a). However, a motion to amend may be
denied if permitting the amendment would prejudice the
opposing party, produce an undue delay in the litigation, or
result in futility for lack of merit. Jackson v. Bank of Hawaii,
902 F.2d 1385, 1387 (9th Cir. 1989) (citations omitted). Of
these factors, prejudice to the opposing party is the most
important. Id.
DISCUSSION
Plaintiff seeks to amend because at the second trial of
Defendant Perry, "there was testimony regarding the events
surrounding this incident and the practices on the waterfront.
Information garnered from that trial as well as information in
discovery have changed certain factual allegations and added
new factual allegations and legal theories in this case." Motion
at 4. On the other hand, McCabe argues that Plaintiff has given
no indication of what he wants to amend, making it impossible
for it to evaluate the legal sufficiency of the basis of such a
request. The court agrees.
Although Rule 15(a) has been given a liberal
interpretation, "leave to amend is not to be granted -
automatically.” Jackson, 902 F.2d at 1387. In this case,
substantial discovery has already taken place, and the
Defendants have been notified of the causes of action Plaintiff
asserts against them. Now Plaintiff seeks to assert new factual
allegations and legal theories which are unbeknown to
Defendants. In Jackson, the Ninth Circuit affirmed the district
court’s denial of leave to amend, noting that "[p]utting the
defendants ’through the time and expense of continued litigation
on a new theory, with the possibility of additional discovery
would be manifestly unfair and unduly prejudicial.’" Id. at
1388 (citing Priddy v. Edelman. 883 F.2d 438, 447 (6th Cir.
1989)). Likewise, this court finds that allowing Plaintiff to
amend his complaint at this juncture, particularly without
providing the court with any clues as co what he wants co
amend, would be unduly prejudicial.’
App. F-4
CONCLUSION
For the reasons stated above, the court DENIES
Plaintiff's Cross Motion for Leave to File a Second Amended
Complaint.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, FEB 12 1997.
/s/_ David Alan Ezra
DAVID ALAN EZRA
UNITED STATES
DISTRICT COURT
Civil Nos. 96-00284 DAE, 96-0412 DAE, 96-00410 DAE:
ORDER DENYING PLAINTIFF’S CROSS MOTION FOR
LEAVE TO FILE A SECOND AMENDED COMPLAINT
1. The Local Rules provide that "[a}ny party filing or moving to
file an amended pleading shall reproduce the entire pleading as
amended and may not incorporate any part of a prior pleading by
reference, except with leave of court." L.R. 120-3. Plaintiff
apparently failed to comply with this rule, as evidenced by the court’s
inability to determine what changes Plaintiff proposes in his amended
Complaint.
App. F-5
UNITED STATES DISTRICT COURT
District of Hawaii
JUDGMENT IN A
QUENTIN HIDEYUKI TAHARA CIVIL CASE
v. (Filed 3/4/97)
MATSON TERMINALS, INC., et al. Case Number:
Civil 96-00284-DAE
Civil 96-00410-DAE
Civil 96-00412-DAE
\
[ ] Jury Verdict. This action came before the Court for a
trial by jury. The issues have been tried and the jury has
rendered its verdict.
[X] Decision by Court. This action came for consideration
before the Court. The issues have been considered and a
decision has been rendered.
IT IS ORDERED AND ADJUDGED
that Summary Judgment is entered in favor of all
Defendants and against Plaintiff on the federal RICO
claim. IT IS FURTHER ORDERED AND ADJUDGED
that all of Plaintiff's remaining claims against Defendants
are DISMISSED Without Prejudice for lack of subject
matter jurisdiction.
cc: all counsel
____MAR 04 1997 _WALTER A.Y.H. CHINN
Date Clerk
[si
(By) Deputy Clerk
App. G-1
haa ge a ie
nt i arn = 5 ee
UNITED STATES DISTRICT COURT
District of Hawaii
QUENTIN HIDEYUKI TAHARA AMENDED JUDG-
MENT IN A CIVIL
Vv. CASE
MATSON TERMINALS, INC., et al. (File May 5, 1997)
[J
Case Number:
Civil 96-00284-DAE
Civil 96-00410-DAE
Civil 96-00412-DAE
Jury Verdict. This action came before the Court for a
trial by jury. The issues have been tried and the jury has
rendered its verdict.
Decision by Court. This action came for consideration
before the Court. The issues have been considered and a
decision has been rendered.
IT IS ORDERED AND ADJUDGED
that the "Order Granting Defendants’ Motion for
Summary Judgment on Federal RICO Claim and
Dismissing Without Prejudice All Remaining Claims For
Lack of Subject Matter Jurisdiction," filed February 20,
1997 is hereby MODIFIED. IT IS FURTHER
ORDERED that the Plaintiff's Claims for Duty to
Provide a Safe Workplace, Duty to Warn, Duty to
Dispatch, Interference with Prospective Advantage, and
State RICO Claims against ILWU are hereby
DISMISSED WITH PREJUDICE. IT IS FURTHER
ORDERED that Plaintiff's Remaining State Claims are
hereby REMANDED to State Court. IT IS FURTHER
App. H-1
ORDERED that Plaintiff's Request for Clarification is
hereby DENIED.
cc: all parties
et
MAY 5 1997 _WALTER A.Y.H. CHINN
Date Clerk
/s/
(By) Deputy Clerk
App. H-2
RACKETEER INFLUENCED AND
CORRUPT ORGANIZATIONS
Provisions of the
ORGANIZED CRIME CONTROL
ACT OF 1970
(Act of October 15, 1970, Public Law 91-452,
Section 901(a), 84 Stat. 941, effective October
15, 1970, as amended; 18 U.S. Code Secs. 1961
through 1968).
18 U.S.C. § 1961. Definitions
As used in this chapter -
(4) “enterprise” includes any individual partnership,
corporation, association, or other legal entity, and any union or
group of individuals associated in fact although not a legal
entity;
(5) “pattern of racketeering activity” requires at least two
acts of racketeering activity, one of which occurred after the
effective date of this chapter and the last of which occurred
within ten years (excluding any period of imprisonment) after
the commission of a prior act of racketeering activity;
App. I-1
LONGSHORE AND HARBOR WORKERS’
COMPENSATION ACT AMENDMENTS OF 1984!
An Act To provide compensation for disability or death resulting
from injury to employees in certain maritime employment, and
for other purposes.
Be it enacted by the Senate and House of Representatives
of the United States of America in Congress assembled (33
U.S.C. §§ 904 and 905),
SHORT TITLE
Sec. 1. This Act may be cited as the "Longshore and
Harbor Workers’ Compensation Act Amendments of 1984."
LIABILITY FOR COMPENSATION
Sec. 4.(a) Every employer shall be liable for and shall
secure the payment to his employees of the compensation
payable under sections 7, 8, and 9. In the case of an employer
who is a subcontractor, only if such subcontractor fails to
secure the payment of compensation shall the contractor be
liable for and be required to secure the payment of
compensation. A subcontractor shall not be deemed to have
failed to secure the payment of compensation if the contractor
has provided insurance for such compensation for the benefits of
the subcontractor.
(b) | Compensation shall be payable irrespective of
fault as a cause for the injury.
! Includes 1984 amendments made by P.L. 98-426 which
are printed in italic.
App. J-1
EXCLUSIVENESS OF REMEDY AND
THIRD-PARTY LIABILITY
Sec. 5.(a) The liability of an employer prescribed in
section 4 shall be exclusive and in place of all other liability of
such employer to the employee, his legal representative,
husband, or wife, parents, dependents, next of kin, and anyone
otherwise entitled to recover damages from such employer at
law or in admiralty on account of such injury or death, except
that if an employer fails to secure payment of compensation as
required by this Act, an injured employee, or his legal
representative in case death results from the injury, may elect to
claim compensation under the Act, or to maintain an action at
law or in admiralty for damages on account of such injury or
death. In such action the defendant may not plead as a defense
that the injury was caused by the negligence of a fellow servant,
or that the employee assumed the risk of his employment, or
that the injury was due to the contributory negligence of the
employee. For purposes of this subsection, a contractor shall
be deemed the employer of a subcontractor’s employee only if
the subcontractor fails to secure the payment of compensation as
required by section 4.
App. J-2
PIRES ORs DY TI TEASED PR IDI RDS ORI PRE ROE ROLE NY
es emer SPREE EE ETT PN NEAL AMINES PREETI AE PEELE SED IO FEI A MOOI IE Bh PN Le I rt Res
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.