United States District Court, N.D. California
ORDER RE DEFENDANT'S MOTION TO DISMISS FIRST
AMENDED COMPLAINT RE: DKT. NO. 39
M. RYU, UNITED STATES MAGISTRATE JUDGE
Phil Branston moves to dismiss Plaintiff Kimberly
Vaupen's claims for negligence per se, negligent
infliction of emotional distress, and intentional infliction
of emotional distress, as well as her request for punitive
damages in the First Amended Complaint (“FAC”).
[Docket No. 39]. In the alternative, Branston moves for a
more definite statement of these claims. Vaupen opposes.
[Docket No. 40]. This matter is suitable for resolution
without a hearing. Civ. L.R 7-1(b). For the reasons stated
below, the court grants Branston's motion to dismiss in
part, with leave to amend. The motion for a more definite
statement is denied as moot.
makes the following allegations in the FAC, all of which are
taken as true for purposes of this motion. On March 1, 2016
at 6:00 p.m., Vaupen was running southbound on the right side
of the Iron Horse Regional Trail in Danville, California.
FAC, ¶ 10 [Docket No. 38]. Branston was riding a bicycle
in Vaupen's lane of travel without any bright lights, and
on the wrong side of the trail, i.e., the left lane instead
of the right lane. He was traveling at a “high and
unreasonable rate of speed” when he collided with her,
causing her to violently fall face first into the asphalt.
FAC, ¶ 10. As a result, Vaupen sustained personal
injuries including the loss of her front tooth, deep
lacerations and bruises to her face, lip, and hands, and torn
ligaments. Id. Vaupen received several stitches to
the inside and outside of her upper lip. She also had two
cortisone injections in her left hand and underwent several
months of physical therapy to retrain her left hand.
Id. She still continues to experience pain when she
eats, and has stiffness in her left hand when performing
basic activities, such as lifting or closing her hand.
the collision, Branston did not call for emergency assistance
or notify the police, nor did he provide his name or contact
information to Vaupen, the emergency team that arrived to
assist her, or any persons that stopped to help.
Id., ¶ 12. Vaupen eventually located Branston
by posting about the incident on nextdoor.com, a social media
website. Id., ¶ 13.
to Vaupen, Branston gave a statement to the police about the
incident on March 6, 2016, in which he presented conflicting
accounts of the collision. Id. He initially stated that
he was cycling northbound in the middle of the Iron Horse
Trail when his bike light illuminated a jogger on the trail.
Id. At that point, he realized that he was going to
collide with the jogger, but could not “alter his
course.” Id. Branston later stated that he
“did not notice the jogger prior to the
September 20, 2017, Vaupen filed this lawsuit alleging claims
for negligence and negligence per se. Compl. [Docket No. 1].
Branston moved to dismiss the negligence per se claim, as
well as Vaupen's requests for punitive damages and
attorneys' fees. [Docket No. 9]. On January 26, 2018, the
court granted Branston's motion to dismiss with leave to
amend the negligence per se claim only. Order Granting
Defendants' Motion to Dismiss with Leave to Amend
(“January 26, 2018 Order”) [Docket No. 36].
filed a timely FAC alleging four state law claims: 1)
negligence and recklessness; 2) negligence per se; 3)
negligent infliction of emotional distress
(“NIED”); and 4) intentional infliction of
emotional distress (“IIED”). The FAC also
contains a request for punitive damages.
moves to dismiss the claims for negligence per se, NIED, and
IIED, as well as the request for punitive damages. [Docket
Motion to Dismiss
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) tests the legal sufficiency of the claims alleged in
the complaint. Ileto v. Glock Inc., 349 F.3d 1191,
1199-200 (9th Cir. 2003). When reviewing a motion to dismiss
for failure to state a claim, the court must “accept as
true all of the factual allegations contained in the
complaint, ” Erickson, 551 U.S. at 94
(citation omitted), and may dismiss the case “only
where there is no cognizable legal theory or an absence of
sufficient facts alleged to support a cognizable legal
theory.” Shroyer v. New Cingular Wireless Servs.,
Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (citation and
quotation marks omitted).
complaint presents a cognizable legal theory, the court may
grant the motion if the complaint lacks “sufficient
factual matter to state a facially plausible claim to
relief.” Id. (citing Ashcroft v.
Iqbal, 556 U.S. 662 (2009)). A claim has facial
plausibility when a “plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678 (citation omitted).
Motion for Definite Statement
Rule of Civil Procedure 12(e) provides that “a party
may move for a more definite statement of a pleading . . .
which is so vague or ambiguous that the party cannot
reasonably prepare a response.” Motions for a more
definite statement are “viewed with disfavor” and
are rarely granted. Cellars v. Pac. Coast Packaging,
Inc., 189 F.R.D. 575, 578 (N.D. Cal. 1999). However,
courts may require a more definite statement “when the
pleading is so vague or ambiguous that the opposing party
cannot respond, even with a simple denial, in good faith or
without prejudice to himself.” Cellars, 189
F.R.D. at 578 (quotation and citation omitted).
Leave to Amend
Federal Rule of Civil Procedure 15(a), leave to amend should
be granted as a matter of course, at least until the
defendant files a responsive pleading. Fed.R.Civ.P. 15(a)(1).
After that point, Rule 15(a) provides generally that leave to
amend the pleadings before trial should be given
“freely . . . when justice so requires.”
Fed.R.Civ.P. 15(a)(2). “This policy is to be applied
with extreme liberality.” Eminence Capital, LLC v.
Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003)
(quotation omitted). In the absence of an
“apparent” reason, such as undue delay, bad faith
or dilatory motive, prejudice to the opposing party, futility
of the amendments, or repeated failure to cure deficiencies
in the complaint by prior amendment, it is an abuse of
discretion for a district court to refuse to grant leave to
amend a complaint. Foman v. Davis, 371 U.S. 178, 182
(1962); Lockheed Martin Corp. v. Network Sols.,
Inc., 194 F.3d 980, 986 (9th Cir. 1999).
moves to dismiss the claims for negligence per se, NIED, and
IIED, as well ...