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Mitschke v. Gosal Trucking, Lds.

United States District Court, D. Nevada

October 16, 2014

VIRGINIA MITSCHKE, Plaintiff(s),
v.
GOSAL TRUCKING, LDS., et al., Defendant(s)

ORDER

GLORIA M. NAVARRO, District Judge.

Presently before the court is a partial motion to dismiss filed by defendants Gosal Trucking, Ltd. and Saeed Samimi (hereinafter "defendants"). (Doc. # 29). Plaintiff Virginia Mitschke (hereinafter "plaintiff") filed a response, (doc. # 45), and defendants filed a reply, (doc. # 51).

I. Background

This case arises out of a motor vehicle accident occurring on August 1, 2013. (Doc. # 1-2). Plaintiff and her husband, Richard Darnell ("Richard"), were driving on Interstate 15 in Clark County, Nevada when their pickup truck collided with a truck driven by defendant Saeed Samimi. Plaintiff and her husband both suffered severe injuries. Richard was forced to undergo numerous surgeries and died 24 days after the accident. (Doc. # 1-2).

Plaintiff filed a complaint individually and as co-administrator of her husband's estate in Nevada state court. Defendants then removed the instant action to federal court. (Doc. # 1).

Plaintiff's complaint asserts claims for (1) wrongful death; (2) loss of consortium; (3) negligence; (4) vicarious liability; (5) negligence per se; (6) respondeat superior; (7) res ipsa loquitor; (8) negligent infliction of emotional distress to a bystander; (9) direct negligent infliction of emotional distress; (10) intentional infliction of emotional distress; (11) negligent hiring, training, retention, and/or supervision; and (12) punitive or exemplary damages.

Defendants now move to dismiss plaintiffs' fourth, fifth, sixth, seventh, ninth, tenth, and twelfth claims for relief. (Doc. # 29).

II. Legal Standard

A court may dismiss a plaintiff's complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). A properly pled complaint must provide "[a] short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require detailed factual allegations, it demands "more than labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).

"Factual allegations must be enough to rise above the speculative level." Twombly, 550 U.S. at 555. Thus, to survive a motion to dismiss, a complaint must contain sufficient factual matter to "state a claim to relief that is plausible on its face." Iqbal, 556 U.S. at 678 (citation omitted).

In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply when considering motions to dismiss. First, the court must accept as true all well-pled factual allegations in the complaint; however, legal conclusions are not entitled to the assumption of truth. Id. at 678-79. Mere recitals of the elements of a cause of action, supported only by conclusory statements, do not suffice. Id.

Second, the court must consider whether the factual allegations in the complaint allege a plausible claim for relief. Id. at 679. A claim is facially plausible when the plaintiff's complaint alleges facts that allow the court to draw a reasonable inference that the defendant is liable for the alleged misconduct. Id. at 678.

Where the complaint does not permit the court to infer more than the mere possibility of misconduct, the complaint has "alleged - but it has not shown - that the pleader is entitled to relief." Id. at 679 (internal quotations omitted). When the allegations in a complaint have not crossed the line from conceivable to plausible, plaintiff's claim must be dismissed. Twombly, 550 U.S. at 570.

The Ninth Circuit addressed post- Iqbal pleading standards in Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). The Starr court stated,

First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not ...

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