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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 unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.
Id.

III. Discussion

Defendants seek dismissal of seven claims in plaintiff's complaint. The merits of each claim will be addressed in turn.

A. Vicarious liability

Defendants first ask the court to dismiss plaintiff's vicarious liability claim. (Doc. # 29). "Vicarious liability is not an independent cause of action, but rather a theory assigning liability...." Okeke v. Biomat USA, Inc., 927 F.Supp.2d 1021, 1028 (D. Nev. 2013) (granting motion to dismiss claim for vicarious liability on these grounds).

Defendants' classification of vicarious liability is correct. While this theory may impose liability on a particular defendant, it is not an independent cause of action. Accordingly, the court will dismiss plaintiff's fourth claim for relief on these grounds. This does not foreclose plaintiff from later arguing that particular defendants are vicariously liable on any remaining claims.

B. Negligence per se

Defendants contend that plaintiff's negligence per se claim should be dismissed on similar grounds. "Although sometimes pled as such, negligence per se is not a separate cause of action, but a doctrine in which the duty and breach elements of a negligence claim are assumed as a matter of law." Insco v. Aetna Health & Life Ins. Co., 673 F.Supp.2d 1180, 1191 (D. Nev. 2009)....

Accordingly, while plaintiff may allege that defendants were negligent per se in the context of her negligence claim, this is not a separate cause of action. As a result, the court will dismiss plaintiff's fifth claim for negligence per se.

Defendants also ask the court to dismiss plaintiff's negligence per se claim on the grounds that the statute plaintiff references, which prohibits vehicular manslaughter, does not provide a standard of care. (Doc. # 29).

The court finds it premature to foreclose this theory or address its merits at this time. Plaintiff may assert any viable theories of liability for her remaining claims, and upon further factual development, the court will address the merits of those theories at the relevant time.

C. Respondeat superior

Defendants seek dismissal of plaintiff's claim for respondeat superior. The doctrine of respondeat superior provides that employers are vicariously liable for the actions of their employees within the scope of employment.

The analysis for vicarious liability above also applies to the instant claim. Because respondeat superior is a theory of liability rather than a cause of action, the court will dismiss plaintiff's sixth claim.

D. Res ipsa loquitor

Defendants next contend that plaintiff's complaint for res ipsa loquitor should be dismissed. As is true with plaintiff's negligence per se claim, res ipsa loquitor is one way to prove elements of negligence. It is not a separate cause of action. Accordingly, plaintiff's seventh claim for relief will be dismissed.

Defendants additionally request that the court dismiss plaintiff's res ipsa loquitor claims on the grounds that the doctrine is usually inapplicable to car accidents. (Doc. # 29). While defendants may seek to dismiss claims or an entire complaint on the grounds of the motion to dismiss, the court will not foreclose particular arguments at this stage. Plaintiff may assert this theory in the context of her negligence action, and the court will assess the merits of any such arguments at the appropriate stage....

E. Direct negligent infliction of emotional distress

Defendants argue that plaintiff's claim for direct negligent infliction of emotional distress ("NIED") should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendants contend that while plaintiff may bring intentional infliction of emotional distress ("IIED"), bystander NIED, and negligence claims, she may not bring claims for direct NIED. (Doc. # 29).

In Nevada, NIED claims may be brought only by bystander plaintiffs. Grotts v. Zahner, 989 P.2d 415, 416 (Nev. 1999). Nevada law does not provide a cause of action for plaintiffs to allege direct infliction of emotional distress from conduct that was merely negligent. See Kennedy v. Carriage Cemetery Serv., Inc., 727 F.Supp.2d 925, 935 (D. Nev. 2010) (discussing Schoen v. Amerco, Inc., 896 P.2d 469, 477 (Nev. 1995)).

Therefore, while plaintiff may allege NIED as a bystander, Nevada law does not provide a viable cause of action for direct NIED on plaintiff's or her husband's behalf. Any claims of negligently-caused emotional distress may be pleaded in the context of plaintiff's cause of action for negligence. Accordingly, plaintiff's ninth claim will be dismissed.

F. Intentional infliction of emotional distress

Defendants contend that plaintiff's claim for intentional infliction of emotional distress ("IIED") should be dismissed because plaintiff fails to allege sufficient facts to support this claim. (Doc. # 29). In particular, defendants argue that plaintiff cannot show extreme and outrageous conduct.

To establish a claim of intentional infliction of emotional distress, plaintiff must prove:

(1) defendant engaged in "extreme and outrageous conduct with either the intention of, or reckless disregard for, causing emotional distress; (2) [plaintiff] suffered severe or extreme emotional distress; and (3) actual or proximate causation." Posadas v. City of Reno, 851 P.2d 438, 444 (Nev. 1993).

In Nevada, "extreme and outrageous conduct is that which is outside all possible bounds of decency and is regarded as utterly intolerable in a civilized community." Maduike v. Agency Rent-A-Car, 953 P.2d 24, 26 (Nev. 1998) (internal quotation marks omitted)....

Plaintiff's complaint alleges that defendant Saeed Samimi acted with reckless disregard and that his conduct was extreme and outrageous when he drove his truck into plaintiff's lane of traffic, colliding with her pickup truck.

Pursuant to the legal standard above, the court must take plaintiff's well-pleaded factual allegations as true in considering a motion to dismiss. However, conclusory allegations are insufficient.

First, this is precisely the type of "formulaic recitation of the elements" that the Supreme Court has found insufficient. Second, plaintiff has not alleged acts that meet the "extreme and outrageous" standard.

Here, the factual allegations presented in plaintiff's complaint are insufficient to preclude dismissal of her IIED claim. It is not enough for plaintiff to conclusively allege that defendant Saeed Samimi's conduct was "extreme and outrageous" and that he acted with "reckless disregard."

While the results of defendants' conduct as alleged in plaintiff's complaint are surely tragic, recklessly driving a truck in a way that causes an accident is not "outside all possible bounds of decency" or "regarded as utterly intolerable in a civilized community."

Accordingly, the court will dismiss plaintiff's tenth claim for relief.

G. Punitive or exemplary damages

Defendants finally request that the court dismiss plaintiff's claim for punitive or exemplary damages. (Doc. # 29). Punitive damages, like many of plaintiff's other claims, do not provide an independent cause of action. Punitive damages are one remedy that the court may impose upon a finding of liability. Therefore, plaintiff's twelfth claim for punitive damages will be dismissed.

Notably, defendants also ask the court to dismiss "plaintiff's punitive damage demand" on the grounds that (1) it is conclusory, and (2) the complaint fails to identify any malicious, oppressive, or fraudulent actions. (Doc. # 29).

While punitive damages do not provide a separate cause of action, the court will not preclude plaintiff from requesting punitive damages at a later date. Because any damages dispute is currently premature, the court will address the issue of damages if and when plaintiff succeeds on any of her remaining claims.

IV. Conclusion

Accordingly,

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendants' partial motion to dismiss, (doc. # 29), is hereby GRANTED, and plaintiffs' fourth, fifth, sixth, seventh, ninth, tenth, and twelfth claims are dismissed in accordance with the foregoing.


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