RUSH MOORE LLP A Limited Liability Law Partnership JASON M. TANI 4859-0 jtani@rmhawaii.com BRYAN M. HARADA 8563-0 bharada@rmhawaii.com 737 Bishop Street, Suite 2400 Honolulu, Hawaii 96813 Tel. No.: (808) 521-0400 Fax No.: (808) 521-0497 Attorneys for Defendants CHARLES C. NEAL, MOLOKINI DIVERS INC. dba SCUBA SHACK, and NEALCO INTERNATIONAL LLC dba SCUBA SHACK IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII MARY M. STRICKERT, individually, as Personal Representative of the Estate of Mark David Strickert, deceased, and SARA SPREEN, as the duly appointed Guardian ad litem for C.H.S, a minor, and C.S.S., a minor, Plaintiffs, vs. CHARLES C. NEAL; MOLOKINI DIVERS, INC; NEALCO INTERNATIONAL, LLC dba SCUBA SHACK; JEFFREY BARTUNEK; and ALANA OSAKI, Defendants. ______________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL NO. 14-00513 DKW-RLP DEFENDANTS CHARLES C. NEAL, MOLOKINI DIVERS, INC. dba SCUBA SHACK, and NEALCO INTERNATIONAL, LLC dba SCUBA SHACK’S MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO COUNTS I, II, AND V OF THE FIRST AMENDED COMPLAINT FOR COMPENSATORY AND PUNITIVE DAMAGES FOR MARITIME PERSONAL INJURY, FILED 12/02/15 IN CIV. NO. 15-CV00409 JMS-KSC [11]; MEMORANDUM IN SUPPORT OF MOTION; CERTIFICATE OF SERVICE Hearing: Date: __________________________ Time: __________________________ Case 1:14-cv-00513-DKW-RLP Document 337 Filed 01/25/17 Page 1 of 3 PageID #: 3753 2 ALANA DOHNER OSAKI, Plaintiff, vs. CHARLES C. NEAL; JEFFREY BARTUNEK; MOLOKINI DIVERS, INC.; NEALCO INTERNATIONAL, LLC dba SCUBA SHACK; M/V DOUBLE SCOOP, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Judge: Honorable Derrick K. Watson Consolidated With CIVIL NO. 15-00409 DKW-RLP Trial: Date: June 26, 2017 Judge: Honorable Derrick K. Watson ________________________________) DEFENDANTS CHARLES C. NEAL, MOLOKINI DIVERS, INC. dba SCUBA SHACK, and NEALCO INTERNATIONAL, LLC dba SCUBA SHACK’S MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO COUNTS I, II, AND V OF THE FIRST AMENDED COMPLAINT FOR COMPENSATORY AND PUNITIVE DAMAGES FOR MARITIME PERSONAL INJURY [11] FILED 12/02/15 IN CIV. NO. 15-CV00409 JMS-KSC Defendants CHARLES C. NEAL (“Neal”), MOLOKINI DIVERS, INC. (“Molokini”), and NEALCO INTERNATIONAL, LLC (“Nealco”) (collectively, “Moving Defendants”) move this court for an order granting partial summary judgment in their favor on Plaintiff ALANA DOHNER OSAKI’s (“Osaki”) First Cause of Action (Jones Act Negligence), Second Cause of Action (Unseaworthiness), and Fifth Cause of Action (Rescue Doctrine) as alleged in her First Amended Complaint for Compensatory and Punitive Damages for Maritime Case 1:14-cv-00513-DKW-RLP Document 337 Filed 01/25/17 Page 2 of 3 PageID #: 3754 3 Personal Injury [11] filed on December 2, 2015 in Civ. No. 15-CV00409 JMS- KSC [Dkt 11] (“FAC”). Summary judgment on these claims is appropriate because Osaki was neither a “seaman” entitled to bring a claim under the Jones Act or a claim for unseaworthiness under general maritime law, nor a qualifying employee of any of the Moving Defendants when she suffered the injuries alleged in her FAC. Alternately, Osaki’s claims against Defendants Neal and Nealco fail because Osaki was not working within the scope of any employment with those Defendants when she was injured, and neither Neal or Nealco owned the allegedly “unseaworthy” vessel. Osaki’s allegations do not state a cognizable claim under a maritime “rescue doctrine.” This motion is brought pursuant to Local Rules of the United States District Court for the District of Hawaii 7.1, 7.2, 7.4, 7.5, and 7.6, and Federal Rules of Civil Procedure 8 and 56, and is supported by the attached memorandum, and the exhibits and declarations in support of the motion. DATED: Honolulu, Hawaii, January 25, 2017. /s/ Jason M. Tani JASON M. TANI BRYAN M. HARADA Co- Counsel for Defendants CHARLES C. NEAL, MOLOKINI DIVERS INC. dba SCUBA SHACK, and NEALCO INTERNATIONAL LLC dba SCUBA SHACK Case 1:14-cv-00513-DKW-RLP Document 337 Filed 01/25/17 Page 3 of 3 PageID #: 3755 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII MARY M. STRICKERT et al., Plaintiffs, vs. CHARLES C. NEAL et al., Defendants. ______________________________ ALANA DOHNER OSAKI, Plaintiff, vs. CHARLES C. NEAL et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL NO. 14-00513 DKW-RLP MEMORANDUM IN SUPPORT OF MOTION Consolidated With CIVIL NO. 15-00409 DKW-RLP ________________________________) Case 1:14-cv-00513-DKW-RLP Document 337-1 Filed 01/25/17 Page 1 of 22 PageID #: 3756 2 Table of Contents I. RELEVANT BACKGROUND. .......................................................................... 6 II. SUMMARY JUDGMENT STANDARD. .......................................................... 9 III. ARGUMENT. .................................................................................................10 A. Osaki’s First (Jones Act Negligence) and Second (Unseaworthiness) Causes of Action Fail Because She is Not a Qualifying “Seaman”. ................................10 1. Osaki is Not a “Seaman” Under the Jones Act. ..........................................12 a. SCUBA Activity Does Not Relate to Operation of the Vessel. ...............12 b. Osaki’s Connection to the Vessel Was Not Substantial. .........................14 B. Osaki Was Not Acting as an Employee of Any Moving Defendant..............16 C. Osaki Failed to State a Cognizable “Rescue Doctrine” Claim. .....................19 IV. CONCLUSION ..............................................................................................21 Case 1:14-cv-00513-DKW-RLP Document 337-1 Filed 01/25/17 Page 2 of 22 PageID #: 3757 3 Table of Authorities Cases Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000) ...........................10 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986) ...................................10 Atlantic Sounding Co., Inc. v. Townsend, 557 U.S. 404 (2009) ...................... 16, 18 Barlow v. Liberty Maritime Corp., 746 F.3d 518 (2nd Cir. 2014) ...........................20 Barnes v. Sea Hawaii Rafting, LLC, 2015 U.S. Dist. Lexis 171804, *23 (D. Haw., December 22, 2015) ....................................................................................... 11, 18 Berg v. Chevron U.S.A., Inc., 759 F.2d 1425, 1429-30 (9th Cir. 1985) ........... 20, 21 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) ............................................9, 10 Chandris, Inc. v. Latsis, 515 U.S. 347, 368 (1995) ......................................... passim Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 787 n.6 (1949) 16, 17, 18 Furka v. Great Lakes Dredge and Dock Co., 824 F.2d 330, 332 (4th Cir. 1987) .. 20, 21 Glynn v. Roy Al Boat Mgmt. Corp., 57 F.3d 1495, 1498 (9th Cir. 1995) ....... 16, 18 Harbor Tug and Barge Co. v. Papai, 520 U.S. 548, 560 (1997) ..............................17 Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir. 1996) ............................10 Case 1:14-cv-00513-DKW-RLP Document 337-1 Filed 01/25/17 Page 3 of 22 PageID #: 3758 4 McDermott International, Inc. v. Wilander, 498 U.S. 337, 355 (1991) ..... 12, 13, 14 Phillips v. Tidewater Barge Lines, Inc., 2006 U.S. Dist. Lexis 45705 (Dist. Or., March 21, 2006) ....................................................................................................11 Reyes v. Vantage Steamship Co., Inc., 609 F.2d 140, 142 (5th Cir. 1980) ..............19 Ribitzki v. Canmar Reading & Bates, Ltd., 111 F.3d 658, 664 (9th Cir. 1997) .......11 Rivera v. National R.R. Passenger Corp., 331 F.3d 1074, 1078 (9th Cir. 2003) .....10 United States v. W.M. Webb, Inc., 397 U.S. 179 (1970) ........................................17 Wharf v. Burlington Northern Railroad Co., 60 F.3d 631, 635 (9th Cir. 1995) .......20 Statutes 46 United States Code Service § 30104 (2016) ............................................... passim Federal Rules of Civil Procedure, Rule 56 ................................................................ 9 Case 1:14-cv-00513-DKW-RLP Document 337-1 Filed 01/25/17 Page 4 of 22 PageID #: 3759 5 MEMORANDUM IN SUPPORT OF MOTION Defendants CHARLES C. NEAL (“Neal”), MOLOKINI DIVERS, INC. (“Molokini”), and NEALCO INTERNATIONAL, LLC (“Nealco”) (collectively, “Moving Defendants”) submit this memorandum in support of their motion for partial summary judgment on Plaintiff ALANA DOHNER OSAKI’s (“Osaki”) First (Jones Act Negligence), Second (Unseaworthiness), and Fifth (Rescue Doctrine) Causes of Action alleged in her First Amended Complaint for Compensatory and Punitive Damages for Maritime Personal Injury, [11] filed 12/02/15 in Civ. No. 15-CV00409 JMS-KSC (“FAC”). Osaki was not a “seaman” entitled to bring a claim under the Jones Act, 46 USCS § 30104, or a claim for unseaworthiness under general maritime law. Nor was Osaki a qualifying employee of any of the Moving Defendants when she suffered the injuries claimed in her FAC. Even if an issue of fact exists as to Osaki’s “seaman” status, summary judgment in favor of Defendants Neal and Nealco is appropriate because there can be only one “employer” under the Jones Act, and a claim for breach of warranty of seaworthiness can only be brought against a vessel owner. Defendant Neal had no employment relationship with Osaki, Osaki was not working within the scope of her employment with Defendant Nealco on the date of the incident, and neither Defendant owned the Vessel. Osaki’s allegations do not state a cognizable claim under any maritime rescue doctrine. Case 1:14-cv-00513-DKW-RLP Document 337-1 Filed 01/25/17 Page 5 of 22 PageID #: 3760 6 I. RELEVANT BACKGROUND. Neal is an officer of Molokini, a member of Nealco, and was the captain of the vessel Defendant DOUBLE SCOOP O.V.N. 1209721 (“Vessel”) on the date of the incident that is the subject of Osaki’s claims, July 20, 2014. CSF 1; Decl. Neal ¶¶ 1 and 3. Molokini owns the Vessel and operates a scuba diving tour company. CSF 2; Ex. E; Decl. Neal ¶ 5; Decl. Estling ¶4. Nealco operates a dive shop named Scuba Shack Maui (“Dive Shop”). CSF 3; Decl. Neal ¶ 4; Decl. Estling ¶3. Defendant JEFFREY D. BARTUNEK (“Bartunek”) is a SCUBA diving instructor and guide, and was an independent contractor for Molokini working as a dive guide on July 20, 2014. CSF 4; Decl. Neal ¶ 6; Decl. Estling ¶ 5. By email dated May 9, 2014, Neal, as officer of Molokini and member of Nealco, sent offers to Osaki to work as an employee of Nealco in the Dive Shop, and to work as an independent contractor for Molokini as a SCUBA diving guide. CSF 5; Decl. Neal ¶ 7; Ex. A. By email dated May 10, 2014, Osaki accepted these offers. CSF 6; Decl. Neal ¶ 8; Ex. B. Osaki thereafter began employment with Nealco in the Dive Shop. CSF 7; Decl. Neal ¶ 9. Osaki was to work approximately thirty hours a week in the Dive Shop, which work did not involve any time on the Vessel or in the water. CSF 8; Decl. Neal ¶ 9. In addition, Osaki, who expressed a desire to be certified as a SCUBA diving guide, was to go SCUBA diving approximately three times a week Case 1:14-cv-00513-DKW-RLP Document 337-1 Filed 01/25/17 Page 6 of 22 PageID #: 3761 7 as an independent contractor of Molokini. CSF 9; Decl. Neal ¶ 10. During her time working as an independent contractor with Molokini, Osaki was a SCUBA diving guide. CSF 10; Decl. Neal ¶ 11. Osaki was working as an independent contractor of Molokini, as a dive guide on the Vessel, on July 20, 2014. CSF 10- 11; Decl. Neal ¶ 10-11; Decl. Estling ¶ 6. Because she was working as an independent contractor with Molokini, Osaki obtained a Hawaii business license for general excise and use tax as of July 15, 2014. CSF 12; Ex. C. Osaki later confirmed her independent contractor status in an email to Nealco and Molokini’s office manager, Michelle S. Estling, on August 9, 2014, in which she complained about improper withholdings for her work on the Vessel. CSF 13-14; Decl. Estling ¶¶ 1 & 6-7; Ex. D. Sometime after 6 a.m. on July 20, 2014, Neal, Bartunek, Osaki, and twelve customers boarded the Vessel and set off from Kihei Harbor to the dive site at Molokini Island. Although the weather report showed a passing storm, the surface conditions at the harbor were acceptable and the planned excursion proceeded. CSF 15; Decl. Neal ¶ 12. The Vessel arrived at the dive site around 6:25 a.m., and Bartunek, Osaki, and six customers proceeded to go SCUBA diving, while the other six customers went snorkeling under Neal’s supervision from the Vessel. CSF 16; Decl. Neal ¶ 13. When surface conditions at the dive site location deteriorated, with wind Case 1:14-cv-00513-DKW-RLP Document 337-1 Filed 01/25/17 Page 7 of 22 PageID #: 3762 8 gusts estimated at 20-30 mph, 4-6 foot waves, and driving rain, Neal ordered everyone back onto the Vessel. CSF 17; Decl. Neal ¶ 14. All the SCUBA divers, including Osaki, boarded the Vessel, but not all of the snorkelers returned to the Vessel. CSF 18; Decl. Neal ¶ 15. Bartunek thereafter removed his SCUBA gear and unsuccessfully attempted to rescue snorkelers who were located near rocks and in shallow water, although he was successful in assisting one snorkeler out of the water and up onto the rocks. CSF 19; Decl. Neal ¶ 16. Two snorkelers and Bartunek were later rescued by a surf rescue team called in from Kihei Harbor; a third snorkeler was face-down in the water, unresponsive, and was later pronounced dead. CSF 20; Decl. Neal ¶ 16. While Bartunek was attempting a rescue and Neal was piloting the Vessel in increasingly high waves, Osaki apparently removed her own SCUBA tank and regulator and tied a rope around her waist in preparation to attempt to rescue the distressed snorkelers. CSF 21; Decl. Neal ¶ 17. She then apparently gave the free end of the rope to one of the passengers, who tied the end of the rope to a stanchion. Id. After entering the water, the rope was slack and apparently was sucked into the jet intake of the Vessel, dragging Osaki under the Vessel; the rope around her waist cinched tightly around her waist, allegedly causing the injuries listed in the FAC. CSF 22; Decl. Neal ¶ 18. The rope subsequently broke, and Osaki was brought back on board the Vessel. CSF 23; Decl. Neal ¶ 18. Neal Case 1:14-cv-00513-DKW-RLP Document 337-1 Filed 01/25/17 Page 8 of 22 PageID #: 3763 9 thereafter piloted the Vessel back to Kihei Harbor to obtain medical attention for Osaki. CSF 24; Decl. Neal ¶ 19. At all relevant times, Osaki had no employment relationship with Neal, and Neal was not an owner of the Vessel. CSF 25; Decl. Neal ¶ 20; Ex. E. Osaki has three remaining claims against Moving Defendants: negligence under Jones Act, 46 USCS § 30104 (First Cause of Action; FAC ¶¶ 10-18); unseaworthiness under General Maritime Law (Second Cause of Action; FAC ¶¶ 19-24); and liability under the “Rescue Doctrine” (Fifth Cause of Action; FAC ¶¶ 38-40). Osaki’s Third Cause of Action for Maintenance, Found, Cure and Wages has been settled and dismissed [310], and her Fourth Cause of Action for Gross Negligence is against Bartunek only. This motion relates to Counts I, II, and V only. II. SUMMARY JUDGMENT STANDARD. Summary judgment is warranted under Fed R. Civ. P. 56 when the pleadings, discovery, disclosure materials, and declarations or affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Summary judgment must be granted against a party who fails to demonstrate facts to establish what will be an essential element at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant bears the initial responsibility of identifying those portions of the record which it believes Case 1:14-cv-00513-DKW-RLP Document 337-1 Filed 01/25/17 Page 9 of 22 PageID #: 3764 10 demonstrate the absence of a genuine issue of material fact, but the movant need not provide materials negating the opponent's claim. Id. To oppose a properly supported summary judgment motion, a party may not rest upon mere allegations or denials, but must set forth specific facts showing a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). “A scintilla of evidence or evidence that is merely colorable or not significantly probative does not present a genuine issue of material fact.” Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). Likewise, “[c]onclusory allegations unsupported by factual data cannot defeat summary judgment.” Rivera v. National R.R. Passenger Corp., 331 F.3d 1074, 1078 (9th Cir. 2003). There are no genuine issues where the only evidence presented is “uncorroborated and self- serving.” Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir. 1996). III. ARGUMENT. A. Osaki’s First (Jones Act Negligence) and Second (Unseaworthiness) Causes of Action Fail Because She is Not a Qualifying “Seaman”. Osaki’s First Cause of Action alleges negligence against Moving Defendants under the Jones Act, 46 USCS § 30104, which provides: § 30104. Personal injury to or death of seamen A seaman injured in the course of employment or, if the seaman dies from the injury, the personal representative of the seaman may elect to bring a civil action at law, with the right of trial by jury, against the employer. Laws of the United States regulating recovery for personal injury to, or death of, a railway employee apply to an action under this section. Case 1:14-cv-00513-DKW-RLP Document 337-1 Filed 01/25/17 Page 10 of 22 PageID #: 3765 11 Osaki’s Second Cause of Action alleges “unseaworthiness” of the vessel under general maritime law. To establish a claim for unseaworthiness, Osaki must first show that the warranty of seaworthiness extended to her. See Ribitzki v. Canmar Reading & Bates, Ltd., 111 F.3d 658, 664 (9th Cir. 1997) (listing four elements of a general maritime law claim for unseaworthiness). This requires that she be a “seaman” under the Jones Act. See Barnes v. Sea Hawaii Rafting, LLC, 2015 U.S. Dist. Lexis 171804, *23 (D. Haw., December 22, 2015) (“The Jones Act provides a cause of action for ‘[a]ny seaman who shall suffer personal injury in the course of his employment.’ 46 U.S.C. § 30104. Likewise, under general maritime law, a seaman injured by a shipowner's failure to provide a seaworthy vessel may sue the shipowner for his harm.”). Thus, to bring a claim under the Jones Act, a claimant must be employed as a seaman, and only a Jones Act seaman can maintain a claim for unseaworthiness under general maritime law. See Phillips v. Tidewater Barge Lines, Inc., 2006 U.S. Dist. Lexis 45705 (Dist. Or., March 21, 2006) (issue was whether the plaintiff was a “seaman” entitled to bring Jones Act and unseaworthiness claims; “Claims for unseaworthiness are expressly precluded with respect to land-based maritime workers … [h]owever, a Jones Act seaman may sue the owner of the vessel on which he is working for breach of the warranty of unseaworthiness.”). Case 1:14-cv-00513-DKW-RLP Document 337-1 Filed 01/25/17 Page 11 of 22 PageID #: 3766 12 1. Osaki is Not a “Seaman” Under the Jones Act. Although the Jones Act does not define “seaman,” the United States Supreme Court has required that a claimant show that her work involves both a qualifying type of activity and a substantial relationship to a vessel in order to maintain a Jones Act claim. McDermott International, Inc. v. Wilander, 498 U.S. 337, 355 (1991) (requiring “an employment-related connection to a vessel in navigation”); Chandris, Inc. v. Latsis, 515 U.S. 347, 368 (1995) (requiring a relationship to the vessel that is “substantial in terms of both its duration and nature”). Osaki can show neither. a. SCUBA Activity Does Not Relate to Operation of the Vessel. At the time of her alleged injuries, Osaki was working as a SCUBA dive guide, which was unrelated to the operation of the Vessel. Osaki’s mere travel onboard the Vessel to the destination where she performed her job does not make her eligible for “seaman” status under the Jones Act. In Wilander, the United States Supreme Court was called upon to decide whether an employee’s failure to contribute to the actual navigation of a vessel precluded him from claiming “seaman” status under the Jones Act. Although holding that no actual “navigation” is required, the Court did require that the employee have at least “an employment-related connection to a vessel.” Wilander, 498 U.S. at 355. Thus, “a necessary element of the connection is that a seaman Case 1:14-cv-00513-DKW-RLP Document 337-1 Filed 01/25/17 Page 12 of 22 PageID #: 3767 13 perform the work of a vessel” and “the requirement that an employee's duties must ‘contribute to the function of the vessel or to the accomplishment of its mission’ captures well an important requirement of seaman status.” Id. In short, “a seaman must be doing the ship's work.” Id. In this case, Osaki did not have an employment-related connection to the Vessel. Her work was as a SCUBA guide. The “work of the [V]essel” was to transport customers and guides to dive locations. As captain, it was Neal who performed the work of the Vessel. Osaki’s connection to the Vessel was passive; it was used as a means to transport her to dive locations where she would perform her work. As a SCUBA diving guide, Osaki’s work did not require her to perform the work of the Vessel or otherwise contribute to the function of the Vessel or the accomplishment of its mission of transporting customers and guides to dive locations. Even if her injuries were incurred while Osaki was doing “seaman’s work,” her Jones Act claim still fails because she was not employed as a “seaman.” See Chandris, Inc. v. Latsis, 515 U.S. 347, 361 (a worker is not a seaman “simply because he is doing seaman’s work at the time of the injury”). Nor does Osaki’s employment as a SCUBA diving guide while on board the Vessel confer upon her the status of a member of the Vessel’s crew. Id. (“It is therefore well settled after decades of judicial interpretation that the Jones Act inquiry is fundamentally status Case 1:14-cv-00513-DKW-RLP Document 337-1 Filed 01/25/17 Page 13 of 22 PageID #: 3768 14 based: Land-based maritime workers do not become seamen because they happen to be working on board a vessel when they are injured.”). “[T]he question of who is a ‘member of a crew,’ and therefore who is a ‘seaman,’” is a mixed question of law and fact. Wilander, 498 U.S. at 356. However, “where the facts and the law will reasonably support only one conclusion,” summary judgment is appropriate. Id. Here, Osaki’s work was not as a member of the Vessel’s crew, but rather, as a non-Vessel based SCUBA diving guide. She therefore was not employed as a “seaman” under the Jones Act, and cannot maintain her Jones Act and unseaworthiness claims. b. Osaki’s Connection to the Vessel Was Not Substantial. While the narrow decision in Wilander provided a broad definition of who may be eligible for “seaman” status, even if Osaki could show a sufficient “employment-related connection” to the Vessel, that alone does not confer upon her “seaman” status. In Chandris, Inc. v. Latsis, 515 U.S. 347, the United States Supreme Court was called upon to determine what relationship between a maritime worker and the vessel is required to qualify the employee as a “seaman” entitled to Jones Act protections. The Court held that a claimant not only needs to meet the broad threshold requirement that she be doing the ship’s work as set out in Wilander, but also that her connection to a vessel in navigation be “substantial in terms of both its Case 1:14-cv-00513-DKW-RLP Document 337-1 Filed 01/25/17 Page 14 of 22 PageID #: 3769 15 duration and its nature.” Chandris, 515 U.S. at 368. Thus, neither a “snapshot” of the task being performed when the worker was injured, nor reliance on the fact that the worker was assigned to a vessel for the duration of a voyage and contributed to its mission (the “voyage test”), is sufficient. Chandris, 515 U.S. at 363. Here, Osaki was employed by Nealco to work 30 hours a week in the Dive Shop. None of her work for Nealco qualifies as “maritime” work, much less work as a “seaman.” Osaki was also engaged as an independent contractor with Molokini to assist as a SCUBA diving guide approximately three times a week. While this work may have required her to be transported to dive sites onboard the Vessel, she was on board as a SCUBA diving guide and not as a member of the Vessel’s crew. Thus, the nature of Osaki’s work was not that of a “seaman.” Further, the requirement that the ship’s work be substantial, “necessarily includes a temporal element. A maritime worker who spends only a small fraction of his working time on board a vessel is fundamentally land based and therefore not a member of the vessel's crew, regardless of what his duties are.” Chandris, 515 U.S. at 371. As a guideline, the Supreme Court in Chandris agreed with the rule of thumb adopted by the Fifth Circuit that “[a] worker who spends less than about 30 percent of his time in the service of a vessel in navigation should not qualify as a seaman under the Jones Act.” Thus, “where undisputed facts reveal that a maritime worker has a clearly inadequate temporal connection to vessels in Case 1:14-cv-00513-DKW-RLP Document 337-1 Filed 01/25/17 Page 15 of 22 PageID #: 3770 16 navigation, the court may take the questions from the jury by granting summary judgment.” Id. (citation omitted). Thus, even assuming arguendo that a portion of Osaki’s work as a SCUBA diving guide required her to assist with the function of the Vessel or accomplishment of its mission (e.g., mooring or unmooring the Vessel), that portion of her work was negligible in comparison with, and merely incidental to, her primary duties as a diving guide. Such contribution to the function of the Vessel, if any, consumed far less than 30 percent of Osaki’s time as a matter of law, is a clearly inadequate temporal connection to the Vessel, and, as stated in Chandris, entitles Moving Defendants to a summary judgment. B. Osaki Was Not Acting as an Employee of Any Moving Defendant. The Jones Act allows an injured “seaman” to bring certain claims against her “employer” for injuries sustained within the scope of her employment. Thus, “[t]o recover under the Jones Act, the plaintiff must show that the defendant was his employer at the time of injury.” Glynn v. Roy Al Boat Mgmt. Corp., 57 F.3d 1495, 1498 (9th Cir. 1995) (citing Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 787 n.6 (1949)), abrogated on other grounds by Atlantic Sounding Co., Inc. v. Townsend, 557 U.S. 404 (2009). Here, Osaki had no employment or other contractual relationship with Neal. Although employed by Nealco, Osaki’s work for Nealco was solely to provide Case 1:14-cv-00513-DKW-RLP Document 337-1 Filed 01/25/17 Page 16 of 22 PageID #: 3771 17 services in its land-based retail dive shop. Harbor Tug and Barge Co. v. Papai, 520 U.S. 548, 560 (1997) (“land-based employment is inconsistent with Jones Act coverage”). Thus, she could not have been “injured in the course of her employment” with Nealco, as required by the Jones Act, when she was working as a SCUBA diving guide for Molokini. As a self-employed independent contractor for Molokini, Osaki was also not an “employee” of Molokini. The determination of whether an employment relationship exists in maritime cases is determined by general maritime law. United States v. W.M. Webb, Inc., 397 U.S. 179 (1970) (withholding tax dispute; fishermen determined to be employees rather than independent contractors). Although “[n]o single phrase can be said to determine the employer [and o]ne must look at the venture as a whole,” the Court “may not disregard the plain and rational meaning of employment and employer to furnish a seaman a cause of action against one completely outside the broadest lines or definitions of employment or employer.” Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 795 and 791. As it is in land-based determinations, “[c]ontrol is probably the most important factor” to determine whether an employment relationship exists under maritime law. W.M. Webb, 397 U.S. at 192. Osaki worked solely as a self-employed independent contractor with Molokini, and was not under the control of Molokini, but rather controlled her own Case 1:14-cv-00513-DKW-RLP Document 337-1 Filed 01/25/17 Page 17 of 22 PageID #: 3772 18 actions. Because she was not under the control of Molokini nor “serving the ship” while acting in her capacity as a self-employed SCUBA diving guide, she cannot be deemed an employee of Molokini or subject Molokini to liability under the Jones Act. Finally, even if Osaki could be found to be a “seaman” under the Jones Act, and if she could show she was acting in the capacity of an employee when she was injured, her Jones Act and unseaworthiness claims against Neal and Nealco still fail as a matter of law. Osaki cannot bring her Jones Act claim against all Moving Defendants. The United States Supreme Court has long stated, “[w]e have no doubt that, under the Jones Act, only one person, firm, or corporation can be sued as employer.” Cosmopolitan, 337 U.S. at 791; see also Glynn v. Roy Al Boat Mgmt. Corp., 57 F.3d at 1500, abrogated on other grounds by Atlantic Sounding Co., Inc. v. Townsend, 557 U.S. 404 (2009); Barnes v. Sea Hawaii Rafting, LLC, 2015 U.S. Dist. Lexis 171804, *24 (there can be only one employer and claimant may bring Jones Act claim only against his employer). As the only Defendant with any contractual relationship with Osaki related to her work on July 20, 2014, only Molokini can arguably be subject to a Jones Act claim. At the very least, Osaki’s Jones Act claim against Neal and Nealco must be dismissed. Likewise, because a general maritime law warranty of seaworthiness is owed only by a vessel owner to a seaman, if Osaki can show she qualifies as a “seaman” Case 1:14-cv-00513-DKW-RLP Document 337-1 Filed 01/25/17 Page 18 of 22 PageID #: 3773 19 under the Jones Act, her unseaworthiness claim can only be brought against Molokini, as the Vessel owner. At the very least, Osaki’s unseaworthiness claim against Neal and Nealco must be dismissed. C. Osaki Failed to State a Cognizable “Rescue Doctrine” Claim. In her Fifth Cause of Action, Osaki purports to raise a claim under the “rescue doctrine,” alleging that all Defendants knew or should have known that snorkelers were not trained or qualified to make an unaccompanied snorkel and swim in storm tossed waters on July 20, 2014, and directed Osaki to proceed alone to attempt a rescue without appropriate safety or rescue equipment. FAC ¶ 39. As a result, she alleges, the snorkelers were placed in peril of drowning and Osaki foreseeably went to assist in snorkeler Mark Strickert’s rescue, resulting in her suffering injury. FAC ¶ 40. Summary judgment is appropriate on this claim because Osaki’s allegations do not state a claim under any form of a maritime “rescue doctrine.” It is unclear from Osaki’s allegations what form of a “rescue doctrine” she is invoking. One form of the rescue doctrine imposes a Jones Act duty upon the vessel to use every reasonable means to retrieve a seaman overboard. Reyes v. Vantage Steamship Co., Inc., 609 F.2d 140, 142 (5th Cir. 1980) (“The second branch [of the rescue doctrine] applies where the seaman falls or jumps overboard but remains visible to those on board the ship. There, a long line of cases has Case 1:14-cv-00513-DKW-RLP Document 337-1 Filed 01/25/17 Page 19 of 22 PageID #: 3774 20 imposed an affirmative Jones Act duty upon the ship to use every reasonable means to retrieve the seaman from the water.”). Osaki does not allege that any such duty to retrieve her was breached.1 Other cases apply a “rescue doctrine” as a defense and hold that a seaman who attempts a rescue cannot be found to have contributed to his own injuries suffered during the attempted rescue unless he acted in a wanton and reckless manner. Furka v. Great Lakes Dredge and Dock Co., 824 F.2d 330, 332 (4th Cir. 1987); but see Barlow v. Liberty Maritime Corp., 746 F.3d 518 (2nd Cir. 2014) (rejecting Furka maritime rescue doctrine and applying a reasonable person standard). The Ninth Circuit adopted the Furka rescue standard of care in Berg v. Chevron U.S.A., Inc., but applied it as the standard for liability to be imposed upon a rescuer. 759 F.2d 1425, 1429-30 (9th Cir. 1985) (“We agree with Grigsby, Patentas, and Furka, and hold that the proper standard of care is that a rescuer will be held liable only (1) for negligent conduct that worsens the position of the victim or (2) for reckless and wanton conduct in performing the rescue.”); but see Wharf v. Burlington Northern Railroad Co., 60 F.3d 631, 635 (9th Cir. 1995) (non- maritime case; “Under the rescue doctrine, no comparative fault may be assessed against the rescuer [for his own injuries] unless his or her conduct in performing 1 Even if such allegations were raised, Osaki does not have standing to bring this claim because, as discussed above, she was not a Jones Act “seaman.” Case 1:14-cv-00513-DKW-RLP Document 337-1 Filed 01/25/17 Page 20 of 22 PageID #: 3775 21 the rescue was wanton or reckless.”) (citing Berg and Furka). Both of these Ninth Circuit decisions addressed application of the Furka reckless and wanton standard as a defense and not as an affirmative claim. Because Osaki’s allegations in her Fifth Cause of Action do not state any cognizable claim, it should be dismissed on summary judgment. IV. CONCLUSION Because there is no genuine issue of material fact regarding Osaki’s lack of status as a “seaman” under the Jones Act, she has no standing to bring her First (Jones Act negligence) and Second (general maritime law unseaworthiness) causes of action, and these claims must be dismissed. Alternately, there is no genuine issue of material fact regarding Osaki’s lack of status as an employee of any of the Moving Defendants at the time she suffered her alleged injuries, and even if an issue of fact exists as to her employment with Molokini, the Jones Act and unseaworthiness claims against Defendants Neal and Nealco must be dismissed because neither was an employee of Osaki and neither owned the Vessel. Osaki’s Fifth Cause of Action under a “rescue doctrine” is likewise subject to summary judgment because Osaki’s allegations do not set forth any cognizable claim. Accordingly, Moving Defendants are entitled to summary judgment in their favor on Osaki’s First, Second, and Fifth Causes of Action. Case 1:14-cv-00513-DKW-RLP Document 337-1 Filed 01/25/17 Page 21 of 22 PageID #: 3776 22 DATED: Honolulu, Hawaii, January 25, 2017. /s/ Jason M. Tani JASON M. TANI BRYAN M. HARADA Co- Counsel for Defendants CHARLES C. NEAL, MOLOKINI DIVERS, INC. dba SCUBA SHACK, and NEALCO INTERNATIONAL, LLC dba SCUBA SHACK Case 1:14-cv-00513-DKW-RLP Document 337-1 Filed 01/25/17 Page 22 of 22 PageID #: 3777 From: Charles Neal Date: May 9, 2014 4.39:06 AM GMT-08:00 To: Alana Osaki Subject: Re: Hey You! Hey you! I Love your questions! ! ! ! (and your answers) You will love Michelle as a mentor I shot your email to her, with my ideas. So... she should be contacting you. My guess... is this... she may see it a little differently, but bottom line is it is my decision. But I do respect Ìrer and her opinions. I'm hoping for this,, My goal for you.... about 30 hours a week in the store at $15 per, and probably 3 days a week on the boat at $100 per. $750 a week, $1500 per 'pay period, $3k a month, before taxes. I dont know what your tax rate is but I would imagine around 30%. We will give you all the work you can handle, and hopefully you will know your limit and not get burned out. We work all the time, but hey, its fun! Hows that sound? and again, if you can handle it, there could be more! Michelle may send you our training rnanual, ask her about it. Dont know if it would help with out yon being actuaily in here, in the store, and not sure you want to take that on at this tirne in your school stuff. Exhibit 4 ^') Case 1:14-cv-00513-DKW-RLP Document 337-2 Filed 01/25/17 Page 1 of 2 PageID #: 3778 Anyhow, I'm lieacling ont on the boat soon, looking forward to meeting you, its Iike... hmmm. I'm looking ert you like a daughter, a protege, I dont know. I'm just all the way around exciteci that you are coming into our livesl I-Iave a great day!! charley ps no, you wont need your tank or weights, haha Case 1:14-cv-00513-DKW-RLP Document 337-2 Filed 01/25/17 Page 2 of 2 PageID #: 3779 From: "Alana M.'Osaki" Date: May 10,2014 5.39'.25 PM AKDT To: Charles Neal Subject: Re: Hey You! Hey Charley! I thought I responded already? I'll oheck my sent mail later. I'm at work right now, but just letting you know I might have a draft email that didn't send! Weekends are hectic for me sinoe I do wedding catering. It's so much fun, but long hours and late nights. I am absolutely thrilled on this pay &. it works great for my budget. I'm going to buy my flight first thing in the morning! So exciting :):) I've been so happy to make this huge step in my life. Thank you for letting me work for you! Hope all is well &.happy Saturclay! Best, Alana Osaki Exhibit 6(R)) Case 1:14-cv-00513-DKW-RLP Document 337-3 Filed 01/25/17 Page 1 of 1 PageID #: 3780 'stâfri' Case 1:14-cv-00513-DKW-RLP Document 337-4 Filed 01/25/17 Page 1 of 1 PageID #: 3781 '''':' ;'::: ii.:. _!:r:1ìj 54,PM Hi Michelle, I am looking at my last few checks and n,oticed that I have been getting taxed on boat work. I was under the ¡mþression that since I got my own business license I would not be taxed but ratherwould put money aside. Can you please help me understand this? Aloha, Alana Alana Osaki University of California, Santa Barbara alan aosaki@ umail. ucsb.ed u 408-427-5242 Exhibit (cD)) Case 1:14-cv-00513-DKW-RLP Document 337-5 Filed 01/25/17 Page 1 of 1 PageID #: 3782 ì VESSEI NAME Do.UBLE S.COO?,. . 'OFFICIAL Nl¡JMB.ÉR:at 12Õs7.?1 "', ',, '. ' IMO OR OTHER NUMBER AUC31 94SG707 .HAILING PORT . MAIJI HI t. L MATERIAL ^l t1[, INUM i MECHANICAL PROP YES .,4/. ì :i RT N 12G 9NRT LFNGTH ' ¡ t ti : ì ':,..,...' ,.. '..: \ j ,JV ti. / OPERATIONAL END CO.ASTWISE,, ,,'..: :: ì. ììì ', : t'z '.-, .\ .t: .fl .i I l\t,. '7, l' ,1,: USíJG,Nationai .l E ì'\ i1 \. ' ì..s ì :r :'' lc...J.roNS r' rrììì..ì ìl t t'..,-.'t' :;. 1 t Iì:! a ì ì ii \ ti ? 1 I EM t ì'.ìì ì.rìi i \ ì ì': i \..i .s ì t, ?t... R ,.ì I '., l) it,ìi\\'ìs i\ :i\\\ jì I ì: s 1?r/ , M PREVIOUS EDITION OBSOLETE. THIS CERTIFICATE MAY NOT BE AIJERED Case 1:14-cv-00513-DKW-RLP Document 337-6 Filed 01/25/17 Page 1 of 1 PageID #: 3783 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII MARY M. STRICKERT, individually, as Personal Representative of the Estate of Mark David Strickert, deceased, and SARA SPREEN, as the duly appointed Guardian ad litem for C.H.S, a minor, and C.S.S., a minor, Plaintiffs, vs. CHARLES C. NEAL; MOLOKINI DIVERS, INC; NEALCO INTERNATIONAL, LLC dba SCUBA SHACK; JEFFREY BARTUNEK; and ALANA OSAKI, Defendants. ______________________________ ALANA DOHNER OSAKI, Plaintiff, vs. CHARLES C. NEAL; JEFFERY BARTUNEK; MOLOKINI DIVERS, INC.; NEALCO INTERNATIONAL, LLC dba SCUBA SHACK; M/V DOUBLE SCOOP, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL NO. 14-00513 DKW-RLP CERTIFICATE OF SERVICE [Re: DEFENDANTS CHARLES C. NEAL, MOLOKINI DIVERS, INC. dba SCUBA SHACK, and NEALCO INTERNATIONAL, LLC dba SCUBA SHACK’S MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO COUNTS I, II, AND V OF THE FIRST AMENDED COMPLAINT FOR COMPENSATORY AND PUNITIVE DAMAGES FOR MARITIME PERSONAL INJURY, [11] FILED 12/02/15 IN CIV. NO. 15-CV00409 JMS-KSC] Consolidated With CIVIL NO. 15-00409 DKW-RLP ________________________________) Case 1:14-cv-00513-DKW-RLP Document 337-7 Filed 01/25/17 Page 1 of 4 PageID #: 3784 2 CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date, a copy of DEFENDANTS CHARLES C. NEAL, MOLOKINI DIVERS, INC. dba SCUBA SHACK, and NEALCO INTERNATIONAL, LLC dba SCUBA SHACK’S MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO COUNTS I, II, AND III OF THE FIRST AMENDED COMPLAINT FOR COMPENSATORY AND PUNITIVE DAMAGES FOR MARITIME PERSONAL INJURY, [11] FILED 12/02/15 IN CIV. NO. 15-CV00409 JMS-KSC; MEMORANDUM IN SUPPORT OF MOTION was served to the following parties at their respective last known addresses via E-Mail as indicated below: DAVID L. FAIRBANKS, ESQ. dfairbanks@croninfried.com HOWARD G. McPHERSON, ESQ. hmcpherson@croninfried.com Cronin Fried Sekiya Kekina & Fairbanks 841 Bishop Street, Suite 600 Honolulu, Hawaii 96813 Attorneys for Plaintiff MARY M. STRICKERT (Civ. 14-00513) JOHN R. HILLSMAN, ESQ. jrhillsman@mhpsf.com Pro Hac Vice McGuinn, Hillsman & Palefsky 535 Pacific Avenue San Francisco, California 94133 Attorneys for Plaintiff SARA SPREEN (Civ. 14-00513) GREGORY K. MARKHAM, ESQ. gmarkham@cheemarkham.com Case 1:14-cv-00513-DKW-RLP Document 337-7 Filed 01/25/17 Page 2 of 4 PageID #: 3785 3 KEITH K. KATO, ESQ. kkato@cheemarkham.com Chee Markham & Feldman American Savings Bank Tower 1001 Bishop Street, Suite 2700 Honolulu, Hawaii 96813 Attorneys for Defendant ALANA OSAKI (Civ. 14-00513) JARED A. WASHKOWITZ, ESQ. jw102475@gmail.com JAW Legal 1050 Bishop Street, Suite 450 Honolulu, Hawaii 96813 Attorney for Defendants (Civ. 14-00513) CHARLES C. NEAL; MOLOKINI DIVERS, INC.; NEALCO INTERNATIONAL, LLC dba Scuba Shack and Attorney for Defendants (Civ. 15-00409) CHARLES C. NEAL; MOLOKINI DIVERS INC.; NEALCO INTERNATIONAL, LLC, dba SCUBA SHACK; M/V DOUBLE SCOOP RICHARD A. LESSER, ESQ. lesser@divelaw.com LESSER & ASSOCIATES PC 423 South Pacific Coast Highway, Suite 206 Redondo Beach, CA 90277 and HAROLD G. HOPPE, ESQ. Hoppea001@hawaii.rr.com 737 Bishop Street, Suite 1640 Honolulu, Hawaii 96813 Attorneys for Defendant ALANA DOHNER OSAKI (Civ. 14-00513) and Attorneys for Plaintiff ALANA DOHNER OSAKI (Civ. 15-00409) GARY G. GRIMMER, ESQ. gary@grimmerhawaiilaw.com ANN C. KEMP, ESQ. Case 1:14-cv-00513-DKW-RLP Document 337-7 Filed 01/25/17 Page 3 of 4 PageID #: 3786 4 Gary G. Grimmer & Associates City Financial Tower 201 Merchant Street, Suite 1940 Honolulu, Hawaii 96813 Attorneys for Defendant JEFFERY D. BARTUNEK DATED: Honolulu, Hawaii, January 25, 2017. /s/ Jason M. Tani JASON M. TANI BRYAN M. HARADA Co- Counsel for Defendants CHARLES C. NEAL, MOLOKINI DIVERS, INC. dba SCUBA SHACK, and NEALCO INTERNATIONAL, LLC dba SCUBA SHACK Case 1:14-cv-00513-DKW-RLP Document 337-7 Filed 01/25/17 Page 4 of 4 PageID #: 3787
