United States District Court, E.D. California
National Railroad Passenger Corporation, commonly known as
Amtrak, moves to dismiss Therese Swenson’s fifth
amended complaint. The court held a hearing on the motion on
July 29, 2016. Barbara Norman appeared for Ms. Swenson and
Michael Murphy appeared for Amtrak. The motion is denied.
discussed in this court’s two previous orders, ECF Nos.
23 & 42, Therese Swenson alleges she was wrongly expelled
from an Amtrak train in Kelso, Washington on her way home to
Dunsmuir, California from Seattle. In her original complaint
and first amended complaint, filed before she was represented
by counsel, she alleged Amtrak conductors had refused her
request to use more than one seat. She wanted to
“stretch out across two seats if available.”
First Am. Compl. at 11, ECF No. 6. According to this
complaint, conductors said, “No, if you want to sit on
two seats you have to pay for two.” Id. Amtrak
called the police, Ms. Swenson apparently refused to move,
and she was arrested, handcuffed, and charged with
trespassing. See Id. Ms. Swenson originally asserted
claims for breach of contract and intentional infliction of
emotional distress. Amtrak moved to dismiss, and Swenson
hired an attorney. The motion was denied with respect to the
contract claim and otherwise granted with leave to amend.
amended and asserted claims for breach of contract,
intentional infliction of emotional distress, and negligent
infliction of emotional distress. In contrast with her
previous complaints, she alleged Amtrak had forbidden her
from moving between empty seats rather than from using two
seats at once. See Third Am. Compl. ¶ 1-4, ECF
No. 25. Swenson also alleged claims against the
moved to dismiss the emotional distress claims, but not the
contract claim, and moved to strike various allegations. The
court granted the motion to dismiss, granted the motion to
strike in part, and dismissed the contract claim on its own
motion. Swenson had not explained the factual inconsistency
between her original and amended allegations, she had
attempted to incorporate her contract claim by reference, and
her allegations did not allow the court to infer that Amtrak
had intentionally caused her emotional distress. She was
allowed a final amendment.
current complaint, the Fifth Amended Complaint,
No. 46, Swenson asserts two claims: breach of contract and
negligence. She again alleges Amtrak forbade her from moving
between seats, not that it denied her request to occupy more
than one seat.
now moves to dismiss the negligence claim, but not the
contract claim. ECF No. 48. It argues that Swenson still has
not explained her inconsistent allegations and that her
allegations are not analogous to others California courts
have allowed to proceed against common carriers. Swenson
opposes the motion, ECF No. 50, and Amtrak replied, ECF No.
As summarized in this court’s previous order,
A defendant may move to dismiss for failure to state a claim
upon which relief can be granted. The motion may be granted
only if the complaint lacks a cognizable legal theory or if
its factual allegations do not support a cognizable legal
theory. The court assumes these factual allegations are true
and draws reasonable inferences from them.
A complaint need contain only a short and plain statement of
the claim showing that the pleader is entitled to relief, not
detailed factual allegations. But this rule demands more than
unadorned accusations; sufficient factual matter must make
the claim at least plausible. In the same vein, conclusory or
formulaic recitations of elements do not alone suffice.
Evaluation under Rule 12(b)(6) is a context specific task
drawing on judicial experience and common sense.
Order Apr. 19, 2016, at 5, ECF No. 42 (citations and
quotation marks omitted).
parties’ dispute over Swenson’s clearly
inconsistent allegations is at most tangentially relevant to
her negligence claim and is not dispositive. Whether or not
Amtrak ejected her wrongfully, it faces liability in tort. On
this point the court does not entertain Amtrak’s
argument, raised for the first time at hearing, that its
actions were permissible under sections 2185-2188 of the
California Civil Code. These citations were absent from
Amtrak’s briefing in all three of its motions to
dismiss. Considering the argument now would either
deprive Ms. Swenson of a chance to ...