Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lemberg v. Jpmorgan Chase Bank, N.A

United States District Court, N.D. California

February 26, 2018

ANN LEMBERG, Plaintiff,
v.
JPMORGAN CHASE BANK, N.A., Defendant.

          ORDER RE DEFENDANT'S MOTION TO DISMISS RE: DKT. NOS. 8, 37

          JACQUELINE SCOTT CORLEY, UNITED STATES MAGISTRATE JUDGE

         Plaintiff filed this personal injury action against Defendant JP Morgan Chase Bank, N.A., in the Superior Court for the County of San Francisco and it was later removed to this Court based on diversity jurisdiction. Defendant's Motion to Dismiss is now pending before the Court.[1] (Dkt. No. 7.) After carefully considering the arguments and briefing submitted, the Court concludes that oral argument is unnecessary, see Civ. L.R. 7-1(b), and GRANTS the motion to dismiss with leave to amend. As currently pled, Plaintiff fails to state a claim for negligence, premises liability, or product liability.

         BACKGROUND

         Plaintiff alleges that her finger was seriously injured when using an ATM machine at the Chase Bank branch at 500 Van Ness Ave., San Francisco, California on June 20, 2016. (Complaint (Dkt. No. 1-1) at 5.[2]) As a result of her injury, Plaintiff suffered impairment of her right hand as well as hospital and medical expenses. (Id.)

         Plaintiff subsequently filed this personal injury action against Defendant JP Morgan Chase Bank, N.A., in the Superior Court for the County of San Francisco. (Dkt. No. 1-1.) Her complaint alleges claims for (1) general negligence, (2) products liability, and (3) premises liability. (Id. at 5.) Defendant removed the action to this Court based on diversity jurisdiction under 28 U.S.C. § 1332. (Dkt. No. 1.) Defendant then moved to dismiss the complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 7.) After Plaintiff failed to respond to the motion to dismiss and an order to show cause regarding the same, the Court dismissed the action for failure to prosecute. (Dkt. No. 14.) Shortly thereafter, Plaintiff filed a motion to reopen the action based on excusable neglect which the Court granted. (Dkt. Nos. 15, 19.) Plaintiff also filed an opposition to the motion to dismiss. (Dkt. No. 20.)

         JURISDICTION

         Defendant based its removal on diversity jurisdiction under 28 U.S.C. § 1332. To properly allege diversity jurisdiction, a plaintiff must claim damages in excess of $75, 000 and each defendant must be a citizen of a different state from each plaintiff. See 28 U.S.C. § 1332; Diaz v. Davis (In re Digimarc Corp. Derivative Litig.), 549 F.3d 1223, 1234 (9th Cir. 2008). Here, the amount in controversy exceeds $75, 000 because Plaintiff pleads damages in the amount of $250, 000. (Dkt. No. 1-1 at 5.) The diversity of citizenship requirement is likewise satisfied because Plaintiff is a resident of California and Defendant is a citizen of Ohio where its main office is located. (Dkt. No. 1 at ¶ 7.)

         DISCUSSION

         Defendant moves to dismiss the complaint for failure to state a claim upon which relief can be granted.

         A. Negligence and Premises Liability

         The elements of a negligence and premises liability claim are the same: “a legal duty of care, breach of that duty, and proximate cause resulting in injury.” Kesner v. Superior Court, 1 Cal. 5th 1132, 1158 (2016). “Premises liability is grounded in the possession of the premises and the attendant right to control and manage the premises; accordingly, mere possession with its attendant right to control conditions on the premises is a sufficient basis for the imposition of an affirmative duty to act.” Id. (internal citation and quotation marks omitted). While the allegations of Plaintiff's complaint fail to plead the elements of a negligence claim or a premises liability claim, Plaintiff's opposition to the motion to dismiss and the declaration submitted therewith demonstrate that she can plead the necessarily elements of these claims; namely, that she was injured using an ATM machine at the Chase Bank at 500 McAllister Street in San Francisco because the machine was poorly maintained.[3] Plaintiff is granted leave to amend her complaint to include these allegations.

         B. Products Liability

         A plaintiff may seek recovery in a products liability case either on the theory of strict liability in tort or on the theory of negligence. See Merrill v. Navegar, Inc., 26 Cal.4th 465, 478 (2001). A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a person. See Anderson v. Owens-Corning Fiberglas Corp., 53 Cal.3d 987, 994 (1991). California recognizes three types of product defects under a strict liability theory-manufacturing defects, design defects, and warning defects (inadequate warnings or failure to warn). Id. at 995.

         To prevail on a negligence products liability claim, a plaintiff must show that the defendant owed her a legal duty, that the defendant breached the duty, and that the breach was a proximate or legal cause of his injuries. Merrill, 26 Cal.4th at 477. Under a negligence theory, as opposed to strict liability in tort, the plaintiff must prove the additional element “that the defect in the product was due to negligence of the defendant.” Id. at 479; see also Id. at 485 (“‘[S]trict products liability differs from negligence in one key respect: it obviates the need ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.