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Swenson v. National Railroad Passenger Corp.

United States District Court, E.D. California

August 4, 2016



         The 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.

         I. BACKGROUND

         As 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.

         Swenson 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.[1] Swenson also alleged claims against the individual conductors.

         Amtrak 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.

         In the current complaint, the Fifth Amended Complaint, [2] ECF 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.

         Amtrak 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. 52.


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).


         The 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.[3] Considering the argument now would either deprive Ms. Swenson of a chance to ...

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