6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE
9 MITCHELL K. DAVIS, Case No. C21-5631RSM 10
11 Plaintiff, ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND 12 v. 13 FUJITEC AMERICA, INC., et al., 14 Defendants. 15 16 I. INTRODUCTION 17 This matter comes before the Court on Defendant Bureau Veritas National Elevator 18 19 Inspection Services, Inc. f/k/a National Elevator Inspection Services, Inc. (“Bureau Veritas”)’s 20 Motion to Dismiss. Dkt. #4. Plaintiff Mitchell K. Davis opposes the Motion. Dkt. #11. The 21 Court has determined that it can rule without the need of oral argument. For the reasons stated 22 below, the Court GRANTS Bureau Veritas’s Motion to Dismiss with leave to amend. 23 II. BACKGROUND 24 25 The following facts are taken from Plaintiff’s Complaint, (Dkt. #1-2), and are considered 26 true for purposes of ruling on the Motion to Dismiss. 27 28 Plaintiff Mitchell K Davis is a resident of Lewis County, Washington. Dkt. #1-2 ¶ 1.1. 1 2 On or about August 6, 2018, Plaintiff was visiting the Henry Jackson Building in King County, 3 Washington when he was allegedly injured in Elevator 13. Id. ¶ 3.2. Plaintiff alleges Elevator 4 13’s doors closed on him with significant force and that thereafter he was trapped. Id. ¶ 3.3. After 5 purportedly being trapped in Elevator 13, Plaintiff was transported from the Henry Jackson 6 Building to the VA Emergency Room. Id. ¶ 3.5. Plaintiff claims he began “treating and 7 8 receiving” medical treatment right after being released from the Emergency Room and that he 9 suffered physical and emotional injuries and pain and suffering in an amount to be determined at 10 trial. Id. ¶ 3.9–3.10. 11 Plaintiff alleges that Defendant Fujitec America, Inc. is responsible for the installation and 12 13 maintenance of the elevators located at the Henry Jackson Building; that Defendant National 14 Elevator Inspection Services, Inc. (now known as Bureau Veritas) is responsible for the third- 15 party inspection services of Elevator 13, had inspected said elevator and noted defects with the 16 elevator prior to the events at issue in this litigation; and that Michael J. Panzo was the Qualified 17 Elevator Inspector and Consultant responsible for inspecting said elevator, and had inspected it 18 19 and denoted defects prior to the events at issue here. Id. ¶¶ 3.4–3.6. Plaintiff claims Defendants 20 knew and/or should have known the elevator in question was defective, had similar issues in the 21 past, was not repaired properly, and was a danger to the public when in operation. Id. ¶ 3.8. 22 Plaintiff initiated this litigation by filing his Complaint in state court on July 28, 2021. 23 Dkt. #1 ¶ 1. Plaintiff brings one cause of action for negligence against all three defendants. Dkt. 24 25 #1-1 at Section IV. Removal occurred on August 31, 2021. Dkt. #1. Defendant Bureau Veritas 26 now moves to dismiss. Dkt. #4. 27 28 III. DISCUSSION 1 2 A. Plaintiff’s Motions 3 In Plaintiff’s response to Bureau Veritas’s Motion to Dismiss, Plaintiff also (1) moves to 4 strike the Motion for failure to include a noting date pursuant to LCR 7(b)(1); and (2) requests an 5 extension of time to file his response as his response was filed three days after it was due. 6 Plaintiff’s motion to strike is denied and his motion for extension of time is granted. 7 8 B. Motion to Dismiss 9 a. Legal Standard 10 Federal Rule of Civil Procedure 8(a)(2) requires a plaintiff to plead “a short and plain 11 statement of the claim showing that [he] is entitled to relief.” This requirement serves to “give 12 13 the defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. 14 v. Twombly, 550 U.S. 544, 545 (2007) (internal marks and citation omitted). The complaint must 15 “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its 16 face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a 17 cause of action, supported by mere conclusory statements, do not suffice.” Id. A claim is facially 18 19 plausible when the “plaintiff pleads factual content that allows the court to draw the reasonable 20 inference that the defendant is liable for the misconduct alleged.” Id. In making this assessment, 21 the Court accepts all facts in the complaint as true. Barker v. Riverside County Office of Educ., 22 584 F.3d 821, 824 (9th Cir. 2009). However, the court need not accept plaintiff’s legal 23 conclusions. Iqbal, 556 U.S. at 678. 24 25 In making a 12(b)(6) assessment, the court accepts all facts alleged in the complaint as 26 true, and makes all inferences in the light most favorable to the non-moving party. Baker v. 27 Riverside County Office of Educ., 584 F.3d 821, 824 (9th Cir. 2009) (internal citations omitted). 28 However, the court is not required to accept as true a “legal conclusion couched as a factual 1 2 allegation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). The complaint “must 3 contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its 4 face.” Id. at 678. This requirement is met when the plaintiff “pleads factual content that allows 5 the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 6 Id. The complaint need not include detailed allegations, but it must have “more than labels and 7 8 conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 9 550 U.S. at 555. Absent facial plausibility, a plaintiff’s claims must be dismissed. Id. at 570. 10 a. Analysis 11 Plaintiff brings only one cause of action in his Complaint for “Defendants’ negligence.” 12 13 Dkt.# 1-2 at Section IV.b. To establish a claim for negligence, “a plaintiff must establish: (1) the 14 existence of a duty owed to the complaining party; (2) a breach of that duty; (3) a resulting injury; 15 and (4) that the claimed breach was the proximate cause of the injury.” Hansen v. Friend, 824 16 P.2d 483, 485 (1992) (citation omitted). Bureau Veritas argues Plaintiff’s Complaint only alleges 17 that it “is responsible for third-party inspection services of said elevator, had inspected said 18 19 elevator, and noted defects on prior occasion to incident,” (Dkt. #4 at 2 (citing Dkt #1-2 ¶ 3.5)), 20 and that Plaintiff’s Complaint “does not expressly enumerate any particular cause of action, but 21 states only that ‘as a result of the above-named Defendants’ negligence, Plaintiff suffered physical 22 and emotional injuries . . .’” (Dkt. #4 at 2 (citing Dkt. #1-2 ¶ IV.b)). In response, Plaintiff argues 23 that the Court must consider the Complaint in its entirety and not limit itself to Paragraph 3.5 of 24 25 the Complaint. Dkt. #11 at 2.
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6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE
9 MITCHELL K. DAVIS, Case No. C21-5631RSM 10
11 Plaintiff, ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND 12 v. 13 FUJITEC AMERICA, INC., et al., 14 Defendants. 15 16 I. INTRODUCTION 17 This matter comes before the Court on Defendant Bureau Veritas National Elevator 18 19 Inspection Services, Inc. f/k/a National Elevator Inspection Services, Inc. (“Bureau Veritas”)’s 20 Motion to Dismiss. Dkt. #4. Plaintiff Mitchell K. Davis opposes the Motion. Dkt. #11. The 21 Court has determined that it can rule without the need of oral argument. For the reasons stated 22 below, the Court GRANTS Bureau Veritas’s Motion to Dismiss with leave to amend. 23 II. BACKGROUND 24 25 The following facts are taken from Plaintiff’s Complaint, (Dkt. #1-2), and are considered 26 true for purposes of ruling on the Motion to Dismiss. 27 28 Plaintiff Mitchell K Davis is a resident of Lewis County, Washington. Dkt. #1-2 ¶ 1.1. 1 2 On or about August 6, 2018, Plaintiff was visiting the Henry Jackson Building in King County, 3 Washington when he was allegedly injured in Elevator 13. Id. ¶ 3.2. Plaintiff alleges Elevator 4 13’s doors closed on him with significant force and that thereafter he was trapped. Id. ¶ 3.3. After 5 purportedly being trapped in Elevator 13, Plaintiff was transported from the Henry Jackson 6 Building to the VA Emergency Room. Id. ¶ 3.5. Plaintiff claims he began “treating and 7 8 receiving” medical treatment right after being released from the Emergency Room and that he 9 suffered physical and emotional injuries and pain and suffering in an amount to be determined at 10 trial. Id. ¶ 3.9–3.10. 11 Plaintiff alleges that Defendant Fujitec America, Inc. is responsible for the installation and 12 13 maintenance of the elevators located at the Henry Jackson Building; that Defendant National 14 Elevator Inspection Services, Inc. (now known as Bureau Veritas) is responsible for the third- 15 party inspection services of Elevator 13, had inspected said elevator and noted defects with the 16 elevator prior to the events at issue in this litigation; and that Michael J. Panzo was the Qualified 17 Elevator Inspector and Consultant responsible for inspecting said elevator, and had inspected it 18 19 and denoted defects prior to the events at issue here. Id. ¶¶ 3.4–3.6. Plaintiff claims Defendants 20 knew and/or should have known the elevator in question was defective, had similar issues in the 21 past, was not repaired properly, and was a danger to the public when in operation. Id. ¶ 3.8. 22 Plaintiff initiated this litigation by filing his Complaint in state court on July 28, 2021. 23 Dkt. #1 ¶ 1. Plaintiff brings one cause of action for negligence against all three defendants. Dkt. 24 25 #1-1 at Section IV. Removal occurred on August 31, 2021. Dkt. #1. Defendant Bureau Veritas 26 now moves to dismiss. Dkt. #4. 27 28 III. DISCUSSION 1 2 A. Plaintiff’s Motions 3 In Plaintiff’s response to Bureau Veritas’s Motion to Dismiss, Plaintiff also (1) moves to 4 strike the Motion for failure to include a noting date pursuant to LCR 7(b)(1); and (2) requests an 5 extension of time to file his response as his response was filed three days after it was due. 6 Plaintiff’s motion to strike is denied and his motion for extension of time is granted. 7 8 B. Motion to Dismiss 9 a. Legal Standard 10 Federal Rule of Civil Procedure 8(a)(2) requires a plaintiff to plead “a short and plain 11 statement of the claim showing that [he] is entitled to relief.” This requirement serves to “give 12 13 the defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. 14 v. Twombly, 550 U.S. 544, 545 (2007) (internal marks and citation omitted). The complaint must 15 “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its 16 face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a 17 cause of action, supported by mere conclusory statements, do not suffice.” Id. A claim is facially 18 19 plausible when the “plaintiff pleads factual content that allows the court to draw the reasonable 20 inference that the defendant is liable for the misconduct alleged.” Id. In making this assessment, 21 the Court accepts all facts in the complaint as true. Barker v. Riverside County Office of Educ., 22 584 F.3d 821, 824 (9th Cir. 2009). However, the court need not accept plaintiff’s legal 23 conclusions. Iqbal, 556 U.S. at 678. 24 25 In making a 12(b)(6) assessment, the court accepts all facts alleged in the complaint as 26 true, and makes all inferences in the light most favorable to the non-moving party. Baker v. 27 Riverside County Office of Educ., 584 F.3d 821, 824 (9th Cir. 2009) (internal citations omitted). 28 However, the court is not required to accept as true a “legal conclusion couched as a factual 1 2 allegation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). The complaint “must 3 contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its 4 face.” Id. at 678. This requirement is met when the plaintiff “pleads factual content that allows 5 the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 6 Id. The complaint need not include detailed allegations, but it must have “more than labels and 7 8 conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 9 550 U.S. at 555. Absent facial plausibility, a plaintiff’s claims must be dismissed. Id. at 570. 10 a. Analysis 11 Plaintiff brings only one cause of action in his Complaint for “Defendants’ negligence.” 12 13 Dkt.# 1-2 at Section IV.b. To establish a claim for negligence, “a plaintiff must establish: (1) the 14 existence of a duty owed to the complaining party; (2) a breach of that duty; (3) a resulting injury; 15 and (4) that the claimed breach was the proximate cause of the injury.” Hansen v. Friend, 824 16 P.2d 483, 485 (1992) (citation omitted). Bureau Veritas argues Plaintiff’s Complaint only alleges 17 that it “is responsible for third-party inspection services of said elevator, had inspected said 18 19 elevator, and noted defects on prior occasion to incident,” (Dkt. #4 at 2 (citing Dkt #1-2 ¶ 3.5)), 20 and that Plaintiff’s Complaint “does not expressly enumerate any particular cause of action, but 21 states only that ‘as a result of the above-named Defendants’ negligence, Plaintiff suffered physical 22 and emotional injuries . . .’” (Dkt. #4 at 2 (citing Dkt. #1-2 ¶ IV.b)). In response, Plaintiff argues 23 that the Court must consider the Complaint in its entirety and not limit itself to Paragraph 3.5 of 24 25 the Complaint. Dkt. #11 at 2. Plaintiff argues that, as a whole, his Complaint alleges that 26 “Defendant…is responsible for third-party inspection services of said elevator and has inspected 27 said elevator and noted defects on prior occasion to incident,” “Defendant knew and/or should 28 have known the elevator in question was defective, had similar issues in the past, was not repaired 1 2 properly, and was a danger to the public when operating,” that “[a]s a result of the…Defendants’ 3 negligence, Plaintiff suffered physical and emotional injuries” and that “Plaintiff’s injury caused 4 him lost wages, medical expenses, bodily pain, suffering, and mental anguish.” Dkt. #11 at 2–3 5 (citing Dkt. #1-2 ¶¶ 3.3, 3.5, 3.8–3.10, Section IV.b.). But these allegations are simply “a 6 formulaic recitation of the elements of a cause of action” that do not satisfy federal pleading 7 8 standards. Twombly, 550 U.S. at 555. Plaintiff must allege facts that, accepted as true, show that 9 he is entitled to relief from Bureau Veritas. Iqbal, 556 U.S. at 679 (“While legal conclusions can 10 provide the framework of a complaint, they must be supported by factual allegations.”). Plaintiff 11 fails to do so here because he does not allege how Bureau Veritas breached its duty (if any) to 12 13 Plaintiff. 14 Plaintiff argues that “Defendant was negligent by knowing or that they should have known 15 their failure to properly inspect, failure to properly repair, and knowledge of prior incidents with 16 the same elevator caused injury.” Dkt. #11 at 3. However, even assuming Plaintiff has 17 sufficiently alleged that Bureau Veritas had a duty to inspect the elevator at issue, Plaintiff does 18 19 not allege that Bureau Veritas breached this duty as the Complaint states that Bureau Veritas “had 20 inspected said elevator and noted defects.” Dkt. #1-2 ¶ 3.5. As Bureau Veritas argues, Plaintiff 21 does not allege that Bureau Veritas had a duty to maintain or repair the elevator and specifically 22 alleges that this was another defendant’s responsibility. Dkt. #12 at 2; see Dkt. #1-2 ¶ 3.4 23 (“Defendant, FUJITEC AMERICA, INC., is responsible for the installation and maintenance of 24 25 the elevators located at the Henry Jackson Building.”). Therefore, the Court DISMISSES 26 Plaintiff’s Complaint as to Bureau Veritas pursuant to Rule 8(a)(2) and for failure to state a claim 27 pursuant to Rule 12(b)(6). 28 C. Leave to Amend 1 2 Where a complaint is dismissed for failure to state a claim, “leave to amend should be 3 granted unless the court determines that the allegation of other facts consistent with the challenged 4 pleading could not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv-Well Furniture 5 Co., 806 F.2d 1393, 1401 (9th Cir. 1986). A “court should freely give leave [to amend] when 6 justice so requires.” Fed. R. Civ. P. 15(a)(2). Courts apply this policy with “extreme liberality.” 7 8 Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003). Five factors are 9 commonly used to assess the propriety of granting leave to amend: (1) bad faith, (2) undue delay, 10 (3) prejudice to the opposing party, (4) futility of amendment, and (5) whether plaintiff has 11 previously amended the complaint. Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 12 13 1990); Foman v. Davis, 371 U.S. 178, 182 (1962). In conducting this five-factor analysis, the 14 court must grant all inferences in favor of allowing amendment. Griggs v. Pace Am. Group, Inc., 15 170 F.3d 877, 880 (9th Cir. 1999). In addition, the court must be mindful of the fact that, for each 16 of these factors, the party opposing amendment has the burden of showing that amendment is not 17 warranted. DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987); see also 18 19 Richardson v. United States, 841 F.2d 993, 999 (9th Cir. 1988). 20 The Court finds that the above deficiencies with Plaintiff’s claim may possibly be cured 21 by amendment. There has been no previous amendment to these claims, or bad faith evidence 22 presented. The Court will grant leave to amend, and advises Plaintiff to thoroughly review the 23 factual deficiencies identified by Bureau Veritas in briefing. Leave to amend will not be granted 24 25 a second time. 26 // 27 // 28 IV. CONCLUSION 1 2 Having reviewed the relevant pleadings and the remainder of the record, the Court hereby 3 finds and ORDERS that: 4 (1) Defendant Bureau Veritas’s Motion to Dismiss (Dkt. #4) is GRANTED and Plaintiff’s 5 sole claim as set forth in his Complaint (Dkt. #1) is DISMISSED as to Bureau Veritas. 6 (2) Plaintiff’s Motion to Strike (Dkt. #11) is DENIED. 7 8 (3) Plaintiff’s Motion for Extension of Time (Dkt. #11) is GRANTED. 9 (4) Plaintiff is granted leave to file an amended complaint within fourteen (14) days of 10 this Order. 11
12 13 DATED this 4th day of November, 2022. 14 15 A 16 RICARDO S. MARTINEZ 17 UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28