Escoto v. Estate of Salas

• Court: Superior Court of Guam
• Decided: March 13, 2012
• Docket: CV0260-11
• Status: Unknown

Opinion

Decision and Order Motion to Dismiss CV0260-11

Territo al LaW Library 3 IN THE SUPERIOR COURT OF GUAM 4 ) 5 HENRY E. ESCOTO, ) CIVIL CASE NO. CV0260-11 and ROCHELLE S. ESCOTO, ) 6 ) 7 Plaintiffs, ) DECISION AND ORDER ON ) DEFENDANTS' TWO MOTIONS TO 8 vs. ) DISMISS 9 ) THE ESTATE OF JOANNE MARIE L.G. ) 10 SALAS, PAUL F. LEON GUERRERO, ) GL YNDA N. RICHTER, CLAYTON D. ) 11 RICHTER, UNITED SERVICES ) 12 AUTOMOBILE ASSOCIATION, TAKAGI ) & ASSOCIATES, and ) 13 CHUNG KUO INSURANCE CO., LTD. ) ) 14 Defendants. ) 15 -----------------------------) 16 INTRODUCTION 17 This matter came before the Honorable Alberto C. Lamorena III, on November 21,2011 18 on two motions to dismiss: one filed by Defendants Clayton and Glynda Richter (collectively th 19 "Richters")! and one filed by Defendants Takagi & Associates ("T &A") and United Service 20 Automobile Services Association ("USAA"). Attorney Jesse N. Nasis represented Plaintiff: 21 Henry E. Escoto and Rochelle S. Escoto. Attorney Randall T. Thompson represented Defendant 22 Clayton D. Richter, Glynda N. Richter, USAA and Takagi. Having given due consideration t 23 the parties' arguments and applicable law, the Court now issues its Decision and Order. 24 1/ 25 1/ 26

27 ! The Richters actually filed two motions to dismiss, but defense counsel acknowledged at th 28 hearing that the first motion had been rendered moot by subsequent events and by the subsequen filing of the Richter's second motion to dismiss.

-1- Decision and Order Motion to Dismiss CV0260-11 FACTUAL BACKGROUND 2 This case anses out of an automobile collision that occurred on February 8, 2009. 3 Plaintiffs allege that Ms. Salas, who was driving while, crossed the center line of the road an 4 struck a pickup truck occupied by Plaintiffs and their three children. The initial collision cause 5 Plaintiffs' truck to collide with the vehicle immediately behind it, which was occupied by Mrs. 6 Richter and her three children. Plaintiffs' truck rolled, causing injuries to Plaintiffs and thei 7 children. Two of Plaintiff s children suffered fatal injuries. Ms. Salas was killed on impact. 8 Apparently, neither Mrs. Richter nor her children suffered physical injuries. Plaintiffs filed th 9 complaint in this action on February 7, 2011, just prior to the expiration of the two-year statut lO of limitations. Plaintiffs filed the First Amended Complaint ("F AC") on June 7, 2011, allegin 11 various acts of negligence due to unsafe and reckless driving by both Ms. Salas and Mrs. Richter. 12 One-hundred seventy five days after the filing of the original complaint, Darlene Aflague 13 Plaintiffs' process server, made her first attempt to serve the Summons and Complaint upon th 14 Richters at an address on Anderson Air Force Base that Ms. Aflague thought to be the Richter' 15 current address. However, Ms. Aflague was informed by base personnel that the Richters n 16 longer resided on Guam. On August, 4, 2011, 177 days after the filing of the complaint, Ms. 17 Aflague attempted to serve the Richters by serving T &A, the insurance agent of USAA. USAA 18 in tum, was the insurance provider for Mr. and Mrs. Richter at the time of the collision. Th 19 Richters have never appointed T&A as their agent and did not authorize T&A to accept servic 20 on their behalf. Apparently realizing that T&A could not properly accept service on behalf of th 21 Richters, Plaintiffs made additional attempts to personally serve the Richters at their new addres 22 in Texas. Mr. Clayton was personally served on August 21, 2011, and Glynda Clayton w 23 served on September 17, 2011. 24 On August 19, 2011, T&A and USAA file a motion to dismiss under 12(b)(6) 25 12(b)(1). The motion argues that T&A is not a proper party to this action, that Plaintiffs fail t 26 state a proper claim for negligence against the Richter Defendants, and that Plaintiffs' requeste 27 relief of punitive damages and attorneys fees is improper. That same day the Richters also filed 28 motion to dismiss under Guam Rule of Civil Procedure 12(b)(5) for insufficient service 0

-2- Decision and Order Motion to Dismiss CV0260-11 process arguing that Plaintiffs failed to effectively serve them with the Summons and Complain 2 within 180 of filing the Complaint as required by Rule 4 of the Guam Rules of Civil Procedure 3 The Richters and USAA filed a third Motion to Dismiss on September 19, 2011, essentiall

4 asserting the same untimely service argument as the prior motion. 5 Plaintiffs do not attempt to argue that they timely served the Richter's, but they do argu 6 that because the Richters moved off-island, thereby complicating Plaintiffs' attempts at service 7 there is good cause for the delay. Moreover, Plaintiffs argue that even if no good cause is found 8 the Court should, nevertheless, extend the time for service as allowed by the Rules of Civi 9 Procedure due to the significant prejUdice to Plaintiffs that would result from dismissal. Plaintiff: 10 also assert that the FAC adequately states a cause of action against the Richters and request

11 appropriate relief relating to exemplary damages and attorney's fees. 12

13 DISCUSSION 14 I. Motion to Dismiss for Insufficient Service - Rule 12(b)(5) 15 Defendants argue that this action should be dismissed under Rule 12(b)(5) becaus 16 Plaintiffs did not effect service until 25 days after the 180 deadline in Mr. Clayton'S case and 4 17 days after the deadline in Mrs. Clayton's case. 18 a. Legal Standard 19 A court may dismiss a complaint under Rule 12(b)( 5) where the plaintiff fails to compl 20 with Guam's Rules of Civil Procedure governing service of process. Rule 4(m) provides: 21 If service of the summons and complaint is not made upon a defendant within 180 22 days after the filing of the compliant, the court, upon motion or on its own 23 initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time for 24 service for an appropriate period. This subdivision does not apply to service in a foreign country pursuant to subdivision (f) or 0)(1). 25

26 GUAM R. CIv. P. 4(m). While the Guam Supreme Court has held that strict compliance with th

27 service provisions is required, Pineda v. Pineda, 2005 Guam 10 ~ 18, the Court has not ye

28 determined the scope of the trial court's discretion to extend Rule 4(m)'s 180 deadline where

-3- Decision and Order Motion to Dismiss CV0260-11 plaintiff fails to effect proper service or serves a defendant after the deadline expires. Rule 4(m 2 contains nearly identical language to its federal counterpart and thus federal cases interpretin 3 the rule are persuasive. People v. Diaz, 2007 Guam 3 ~ 14, n. 4. 4 Under the plain language of the rule, the court may grant an extension of time to serve th 5 complaint, see Mann v. American Airlines, 324 F.3d 1088, 1090 (9th Cir. 2003), and may exten 6 "time for service retroactively after the [service deadline] has expired." See U.S. v. 2 16 7 Watches, More or Less Bearing a Registered Trademark of Guess?, Inc., 366 F.3d 767, 772 (9t 8 Cir. 2004). If the plaintiff shows good cause for the delay, the rule requires that the court exten 9 the time period. GRCP 4(m); Efaw v. Williams, 473 F.3d 1038, 1040 (9th Cir. 2007). If the cou 10 does not find good cause, it has broad discretion to either dismiss the complaint withou 11 prejudice or extend the time period for service. Rule 4(m); Efaw, 473 F.3d at 1040. Factors tha 12 the court may consider in determining whether to allow an extension in the absence of goo 13 cause include prejudice to the defendant, actual notice of the lawsuit, eventual service, and 14 statute of limitations bar. Efaw, 473 F.3d at 1041 (2007) (citing Troxell v. Fedders ofN. Am. 15 Inc., 160 F.3d 381, 383 (7th Cir. 1998)). 16 b. Analysis 17 Plaintiffs argue that this Court is required to extend the service deadline because goo 18 cause exists due to attempted service within the 180 day deadline and due to the fact tha 19 Plaintiffs' attempts were frustrated by the Richter's having moved away from Guam, which wa 20 an event not within the Plaintiffs' control. Plaintiffs also contend that even if this Court finds n 21 good cause, it should still exercise its discretion to extend the deadline. 22 Plaintiffs' feeble excuses for their dilatory actions fall far short of anything resemblin 23 good cause. A single attempt at service just prior to expiration of the 180 day deadlin 24 immediately followed by an ill-advised attempt at service upon someone not authorized to accep 25 service simply does not paint a picture of plaintiffs who have diligently attempted to meet thei 26 responsibility to effect timely service. Apparently, only after the deadline expired did Plaintiff: 27 then make an effort to find the Richters at their new address and serve them personally in Texas 28 Plaintiffs offer no justification for their failure to attempt service during the first 175 day

-4- Decision and Order Motion to Dismiss CV0260-11 following the filing of the Complaint. And Plaintiffs offer no explanation as to why they did no 2 file a motion to extend the deadline for service, instead waiting until the filing of their oppositio 3 on the motion to dismiss to raise a good cause justification. 4 Now Plaintiffs merely attempt to shift the blame upon the Richters whose only allege 5 fault is that they moved away from Guam sometime during the two-and-a-halfyears between th 6 date of the accident and the date of attempted service. But Plaintiffs fail to acknowledge the fac 7 that defendants routinely establish new residences and that it is a plaintiffs responsibility to ac 8 diligently in finding and serving a defendant at the new residence. See, e.g., C.F. Dennis v. 9 Christianson, 482 N.W.2d 448, 452 (Iowa 1992) (finding no justification for plaintiffs delay i 10 service of process despite fact that defendant had moved to a different state, did not leave 11 forwarding address, and did not list her new address in local directories); Fetterolf v. Hoffmann 12 LaRoche, Inc., 104 Ohio App. 3d 272, 278, 661 N.E.2d 811, 815 (1995) (noting that Rule 6(b 13 motion to extend service deadline was not proper where, inter alia, plaintiff had ampl 14 opportunity to discover defendant's unknown address). Plaintiffs' proffered justifications simpl 15 do not constitute good cause for the delay in serving the Richters. 16 Despite the absence of good cause, this Court will not dismiss the action for late service. 17 The Richters themselves acknowledge that USAA notified them of the lawsuit in August, 2011 18 (though, the Richters do not specify the exact day on which they received notice). (Richter Def.' 19 Mem. Supp. Third Motion to Dismiss, 6) Furthermore, the Plaintiffs did, ultimately, serve th 20 Richters in Texas and the delay in service was not extraordinary - just twenty-four days after th 21 180 day deadline for Mr. Richter and forty-one days following the deadline with respect to Mrs. 22 Richter. 23 The Richters argue that because servIce occurred after the running of the statute 0 24 limitations the Richters will be forced to defend against stale claims and are therefore prejudice 25 by the delay. The Richters contend that memories and skid marks have faded, and the car 26 involved in the accident are apparently no longer available to inspect. In support of thei 27 assertion of prejudice, the Richters cite Gartin v. Par Pharm. Companies, Inc. 289 F. Appx. 688 28 694-95 (5th Cir. 2008). In Gartin, the Fifth Circuit concluded that extension of the 120 da

-5- Decision and Order Motion to Dismiss CV0260-11 service deadline under the federal rules and the facts presented was not appropriate: the cou 2 noted that because the defendants received service only after a significant delay and after th 3 statute of limitations had run, the defendants would be forced to defend against a stale claim an 4 would therefore suffer prejudice. Gartin, 289 F. App'x at 694. 5 While the Richters claim that the facts in Gartin are nearly identical to the present case 6 this Court finds that the facts in this case differ significantly from those in Gartin. In Gartin, th 7 plaintiffs delayed ninety days from the expiration of the service deadline before even attemptin 8 to serve the defendant. Moreover, this delay occurred despite the fact that the district court ha 9 issued a notice of impending dismissal notifying the plaintiffs of the need to promptly serve th 10 defendants. The Fifth Circuit therefore recognized that by ignoring the district court's sua spant 11 warning and waiting ninety days after the passage of the deadline before attempting service, th 12 plaintiffs had "engaged in a clear pattern of delay and neglect .... "Gartin, 289 F. App'x at 694 13 In contrast, in the present case it is significant that Plaintiffs at least attempted service within th 14 prescribed time-period and that service was ultimately accomplished no later than 41 days afte 15 expiration of the allotted time under Guam's rules. Moreover, this Court never explicitl 16 admonished Plaintiffs to effect service and thus there is no clear pattern of delay and neglect wit 17 respect to Plaintiffs' service obligations. Based on these factual distinctions, this Court does no 18 find occasion to rely upon Gartin in reaching a decision here. In addition, this Court finds tha 19 the prejudice highlighted by the Richters resulting from defending a stale claim is largel 20 speculative and any actual prejudice is minimal and would not be attributable to an extensio 21 granted to Plaintiffs. 22 Finally, dismissal here would work substantial prejudice against Plaintiffs and thei 23 action against the Richters due to the fact that the statute of limitations has run on the underlyin 24 claim. As mentioned prior, such prejudice is appropriately considered on a motion to dismis 25 under Rule 12(b)(5). See United States v. 2 164 Watches More or Less Bearin a Re istere 26 Trademark of Guess?, Inc., 366 F.3d 767, 773 (9th Cir. 2004); See Boley v. Kaymark, 123 F.3 27 756,759 (3d Cir.1997), cert. denied 522 U.S. 1109, 118 S.Ct. 1038, 140 L.Ed.2d lO4 (1998 28 ("the running of the statute of limitations is a factor supporting the discretionary granting of a

-6- Decision and Order Motion to Dismiss CV0260-11 extension of time to make service[.]"). Further, this Court declines the Richter's invitation to fin 2 that dismissal would not prejudice Plaintiffs simply due to the fact that Plaintiffs would be abl 3 to continue pursuing other claims involving other defendants. Consideration of Plaintiffs' othe 4 cases or claims involving unrelated defendants do not factor into this Court's decision relating t 5 any valid claims asserted against the Richters. 6 In sum, the balance here falls in favor of granting a retroactive extension of time fo 7 service under Rule 4(m). 8

9 II. Motion to Dismiss for Failure to State a Claim - Rule 12(b)(6) 10 The Richters argue that the FAC lacks sufficient factual detail to state a valid claim 0 11 negligence or to support a claim for exemplary damages. 12 a. Legal Standard 13 Guam Rule of Civil Procedure 12(b)(6) mandates dismissal of a complaint where 14 pleading fails to properly state a claim upon which relief may granted. GRCP 12(b)(6). Unde 15 Rule 8( a) of the Guam Rules of Civil Procedure, a pleading setting forth a claim for relief mus 16 contain "a short and plain statement of the claim showing that the pleader is entitled to relief.' 17 Guam R. Civ. P. 8(a). 18 The parties express substantial disagreement as to the specific standard this Court shoul 19 apply in determining whether the FAC here is sufficient under Rule 8(a) and properly states 20 claim against the Richters. Their disagreement largely relates to whether the pleading standard i 21 this jurisdiction is characterized by the "no set of facts" standard first articulated in Come v 22 Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102,2 L. Ed. 2d 80 (1957) abrogated by Bell Atl 23 Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007), and wide! 24 recognized by federal courts and the courts of Guam prior to 2007, or whether the Suprem 25 Court of Guam in Core Tech Int'l v. Hanil Eng'g, 2010 Guam 13, adopted the heightene 26 plausibility standard employed by the United States Supreme Court in Bell Atl. Co . v. 27 Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). Under the "no set of facts' 28 standard, a complaint will not be dismissed "unless it appears beyond doubt that the plaintiff c

-7- Decision and Order Motion to Dismiss CV0260-11 prove no set of facts in support of his claim which would entitle him to relief." Conley, 355 U.S. 2 at 45-46, 78 S. Ct. at 102. In contrast, the factual plausibility standard requires that a plaintif 3 plead sufficient facts to state a claim that is plausible on its face. Twombly, 550 U.S. at 570, 12 4 S. Ct. at 1974. A claim is plausible on its face "when the plaintiff pleads factual content tha 5 allows the court to draw the reasonable inference that the defendant is liable for the misconduc 6 alleged." Ashcroft v. Iqbal, 556 U.S. 622, 129 S. Ct. 1937, 1949 (2009). 7 Both federal and local courts have offered inconsistent guidance as to when or how th 8 varied standards should be applied. Much of the confusion appears to stem from the fact that 9 plaintiffs claim must be both legally and factually sufficient in order to withstand a motion t 10 dismiss. Balisteri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990) ("Dismissal can b 11 based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under 12 cognizable legal theory."); Cf Conley, 355 U.S. at 45-47, 78 S. Ct. at 102-03, 2 L. Ed. 2d 8 13 (1957) (in determining whether dismissal of complaint was appropriate, Court applied "fai 14 notice" standard to assess sufficiency of the complaint's factual allegations but applied "no set 0 15 facts" standard in assessing sufficiency of the legal claim"); see also Stephen B. Burbank 16 Pleading and the Dilemmas of Modern American Procedure, 93 Judicature 109, 113 (2009)' 17 Wendy Couture, Conley v. Gibson's ''No Set of Facts" Test: Neither Cancer Nor Cure, 11 18 PENN ST. L. REv. PENN STATIM 19 (2010), available at htlp:llpennstatelawreview.org/114111 19 Penn Statim 19.pdf. But see Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 675 (7th Cir 20 2001) (noting that a motion to dismiss tests a complaint's legal sufficiency while a motion fo 21 summary judgment tests a complaint's factual sufficiency). 22 Despite the apparent distinction between legal and factual sufficiency and the applicabl 23 standards for analyzing a complaint, courts have not provided clear guidance regarding whic 24 standards remain viable or how the standards should apply in specific circumstances. See e. . 25 Conley (applying "no set of facts" standard to test legal sufficiency of complaint, but applyin 26 "fair notice" standard to test factual sufficiency ofthe complaint); Twombly, 550 U.S. at 555,12 27 S. Ct. at 1965,74,77 (condemning application of the "no set of facts" standard and imposing 28 heightened factual plausibility requirement, but also acknowledging Conley's "fair notice'

-8- Decision and Order Motion to Dismiss CV0260-11 standard); Taitano v. Calvo Finance Corp. ~~ 6, 25, 29 (applying "no set of facts" standard i 2 determining factual sufficiency of a complaint while also seemingly acknowledging the "fai 3 notice" standard articulated under Conley); Core Tech Int'l 2010 Guam 13 ~ 52 (reiteratin 4 adherence to the "no set of facts" standard, but in doing so, favorably citing Twombly, whic 5 retired that standard). 6 While this Court acknowledges the difficulty in reconciling the subtle difference 7 regarding the application ofthe above-described standards, some clear principles do offer a guid 8 to this Court in analyzing the F AC in this case. It is clear that in reviewing a motion to dismis 9 the court must "construe the pleading in the light most favorable to the non-moving party, an 10 resolve all doubts in the non-moving party's favor." First Haw. Bank, 2007 Guam 2 ~ 9 (citin )1 Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994)). The complaint "nee 12 not contain detailed factual allegations .... " Core Tech. Int'l Co . v. Hanil En' & Constr. 13 Co., ~ 2010 Guam 13 ~ 52 However, "a plaintiffs obligation to provide the grounds of hi 14 entitlement to relief 'requires more than labels and conclusions, and a formulaic recitation of th 15 elements of a cause of action will not do.'" Id. (quoting Twombly, 550 U.S. 544, 555 (2007)). 16 Indeed, the United States Supreme Court has acknowledged the fact that courts have found 17 literal application of Conley's "no set of facts" standard inappropriate, and that many court 18 require at least some factual showing by the plaintiff to establish the grounds upon which relief i 19 sought. See Twombly, 550 U.S. at 562, 127 S. Ct. at 1969. The Guam Supreme Court apparentl 20 agrees with those courts that require something more than merely hypothetical facts, as tha 21 Court has routinely recognized that a plaintiff must plead something more than "concluso 22 allegations of law," and that "unwarranted inferences" will not defeat a motion to dismiss fo 23 failure to state a claim. Taitano ~ 6 (citing First Haw. Bank, 2007 Guam 2 ~ 9). 24 b) Analysis 25 With the above principles in mind, this Court now turns to the issue of whether Plaintiffs' 26 FAC states a valid claim of negligence on the part of Mrs. Richter and whether the pleading sets 27 forth sufficient allegations to support the requested relief of punitive damages. 28

-9- Decision and Order Motion to Dismiss CV0260-11 1. Claim of Negligence 2 A valid claim of negligence "requires the existence of a duty, the breach of such duty, 3 causation and damages." Leon Guerrero v. DLB Constr. Co. 1999 Guam 9 4 14 (citing Restatement (Second) Torts §§ 281,282 (l988)). Under Guam law, a driver clead 5 has a duty to keep her vehicle at a safe distance from surrounding vehicles. 16 G.c.A. § 3320. 6 Plaintiffs' allegations include a statement that "Upon information and belief, Defendant Mrs 7 Richter was driving her car such that the distance between her car and the Escotos' pickup truc 8 was improper and unsafe." (Pt's FAC ~ 15) Defendants argue this statement constitutes a lega 9 conclusion. This Court finds that the statement to be a sufficient allegation of fact. Moreover 10 this factual allegation supports Plaintiffs claims of negligence, which provide: 11 [38] On or about February 8, 2009, Defendant Mrs. Richter so negligently 12 operated and/or maintained the 2005 Totyota Corolla that she caused the collision 13 with the Escoto's 2003 Toyota Pre-Runner." ~ 38

14 [39] Defendant Mrs. Richter's conduct was careless and negligent, and proximately caused the collision, the resulting deaths of the Escotos' minor 15 children, 8-year-old Henchella and 9-year-old Rhyence; the resulting injuries to 16 the Escotos and their 4-year-old daughter Henriell; and the resulting damage to the Escotos' personal property. 17 (Pt's Complaint ~ 38-39) 18 Even under a heightened plausibility standard Plaintiffs' claim would be sufficient 19 Plaintiffs have stated the facts upon which their theory of liability is based - namely that Mrs 20 Richter was following the Escotos' vehicle at an unsafe distance. It is important to note that "th 21 degree of specificity necessary to establish plausibility and fair notice, and therefore the need t 22 include sufficient factual allegations, depends on context ...." Robbins v. Oklahoml!, 519 F.3 23 1242, 1248 (lOth Cir. 2008). Thus, "[aJ simple negligence action based on an automobil 24 accident may require little more than the allegation that the defendant negligently struck th 25 plaintiff with his car while crossing a particular highway on a specified date and time." Id. (citin 26 Form 9, Complaint for Negligence, Forms App., Fed. Rules Civ. Pro., 28 U.S.C.App., p. 82 27 (discussed in Twombly, 127 S.Ct. at 1970-71 n. 10)). This Court finds the Complaint here goe 28

-10- Decision and Order Motion to Dismiss CV0260-11 beyond mere legal conclusions and offers a sufficient short and plain statement of fact that i 2 sufficient to state a claim for negligence. 3 11. Plaintiffs' Prayer for Exemplary Damages 4 The Richter Defendants argue that Plaintiffs' allegations and claims supporting th 5 Plaintiffs' request for exemplary damages against Mrs. Richter contain only legal conclusions 6 and, because they lack any factual basis, the claim must be dismissed. 7 This Court agrees that the FAC fails to state sufficient facts to support the prayer fo 8 relief or claim for exemplary damages. Under Guam law, a Plaintiff may recover exempla 9 damages where "a defendant is guilty of oppression, fraud, or malice, express or implied." 2 10 G.C.A. § 2120. In an apparent attempt to show malice, Plaintiffs allege that Mrs. Richter "s 11 recklessly and/or willfully and wantonly operated and maintained [her vehicle] that she caused 12 collision with the Escotos' 2003 Toyota Pre-Runner" and that Mrs. Richter's recklessness w 13 the proximate cause of the injuries inflicted upon the Estotos. PI. 's CompI. ~~ 43-44. The Ion 14 fact alleged by Plaintiffs is simply that Mrs. Richter did not operate her vehicle at a safe distanc 15 with respect to the Escotos' vehicle. The legal conclusions consisting of statements of reckless 16 willful, and wanton behavior accompanied by a bare assertion of fact that allows only 17 inference that Mrs. Richter was driving too close to the Escotos' vehicle are insufficient t 18 support an allegation of malice. The FAC fails to plead sufficient facts to state a claim upo 19 which the relief of exemplary damages may be granted with respect to Mrs. Richter. 20 Plaintiffs' have requested leave to amend the FAC to plead sufficient facts in the even 21 this Court dismisses any of its claims. Because it is at least possible - though highly improbable 22 that Plaintiffs could set forth allegations sufficient to allow a claim for exemplary damages, 2 thi 23 Court dismisses the Fourth Claim without prejudice and grants Plaintiffs leave to amend so as t 24 2 T&A and USAA claim that exemplary damages are simply not available to a plaintiff in 25 wrongful death action and further claim that an insurance company cannot be held liable fo 26 payment of exemplary damages in an action against a policy holder. This Court need not discus these issues at this time. First, assuming that any future amended complaint asserts claim 27 properly supporting exemplary damages, it is clear that Plaintiffs, aside from the wrongful deat 28 claims, have claimed other injuries that could support an award of exemplary damages. And i Plaintiffs are ultimately entitled to an award of exemplary damages, this Court and the partie will have ample opportunity to determine on whom such award is enforceable.

-11- Decision and Order Motion to Dismiss CV0260-11 state a valid claim. See Taitano v. Calvo Finance Corp., 2008 Guam 12 ~ 9 (dismissal is prope 2 only if it is clear that the complaint could not be saved by an amendment). 3 111. Plaintiffs' Prayer for Attorney Fees 4

5 This Court recognizes that it is unlikely that a plaintiff may obtain attorney fees in 6 action for negligence. However, as this Court is granting leave to amend, this Court will not no 7 determine whether attorney's fees are appropriate. Defendants may renew their motion t 8 dismiss or file a motion to strike under Rule 12(t) once it clear as to which complaint th 9 Plaintiffs will move forward on.

10 III. Motion to Dismiss T &A 11 Finally, T&A mQves for dismissal under Rule 12(b)(1) of the Guam Rules of Civi 12 Procedure arguing that it is not a proper party to this action and that subject matter jurisdiction i 13 therefore lacking. Standing is one component of subject matter jurisdiction; therefore, a part 14 must have standing before a court has jurisdiction to hear the claim. Guam Ima in Consultants 15 Inc. v. Guam Mem'l Hosp. Auth., 2004 Guam 15 ~ 17. The question of standing to sue goes t 16 the existence of a cause of action against the defendant. Id. (citing Parker v. Bowron, 254 P.2d 6 17 9 (Cal. 1953); Common Cause v. Bd. of Supervisors, 777 P.2d 610,613-14 (Cal. 1989). In =G=u=9 18 v. Tennessen, in considering whether the plaintiff had constitutional standing the Guam Suprem 19 Court acknowledged that in order to have standing a plaintiff

20 must show "(1) it has suffered an 'injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the 21 injury is fairly traceable to the challenged action of the defendant; and (3) it is 22 likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. 23 Tennessen 2011 Guam 2 ~ 14. (quoting Friends of the Earth Inc. v. Laidlaw Envtl. Servs 24 (TOC), Inc., 528 U.S. 167, 180-81 (2000). "The party asserting an injury bears the burden 0 25 proving each element of standing exists." Id. (citing Renne v. Geary, 501 U.S. 312, 316 (1991). 26 In the present case, plaintiffs have not met their burden of showing that their injury is i 27 any way associated with T&A or that it is likely that their injury could be redressed b 28 maintaining its action against T&A. Plaintiffs apparently attempt to hold T&A liable as insurer under Guam's direct action statute, which provides:

-12- Decision and Order Motion to Dismiss CV0260-11 On any policy of liability insurance the injured person or his heirs or representatives shall have a right of direct action against the insurer within the 2 tenns and limits of the policy, whether or not the policy of insurance sued upon 3 was written or delivered in Guam, and whether or not such policy contains a provision forbidding such direct action, provided that the cause of action arose in 4 Guam. Such action may be brought against the insurer alone, or against both the insured and insurer. 5

6 22 G.C.A. § 18305. However, by Plaintiffs' own Complaint allegations T&A is merely

7 insurance agent, and under the plain language of the statute only insurers are subject to the direc

8 action. Plaintiffs have not offered sufficient factual allegations or proof that T&A acts as

9 insurance provider or that T&A insured the Richters. An insurance agent is simply not equivalen

10 to an insurer and this court finds that, as a matter of law, an agent cannot be sued in a direc

11 action under title 22, section 18305. It is clear from the record that T&A is not a proper party t

12 this lawsuit and this Court therefore GRANTS the motion to dismiss.

14 CONCLUSION

15 Based on the foregoing, the Richter Defendants' 12(b)(5) motion to dismiss for failure t 16 timely serve the summons and complaint is DENIED. This Court retroactively grants a 60-da 17 extension of the deadline for timely service on the Richters. As there is no argument tha 18 personal service effected upon the Richters in Texas was improper, and as service on th 19 Richters occurred no later than 60 days after the expiration of the original deadline, this Cou 20 finds that Plaintiffs have established effective service. 21 The motion to dismiss for failure to state a claim under Rule 12(b)(6) is hereb 22 GRANTED in part and DENIED in part. The motion is DENIED with respect to Plaintiffs' Thir 23 Claim alleging negligence. The motion is GRANTED with respect to Plaintiffs' Fourth Clai 24 and the related prayer for exemplary damages. Dismissal is without prejudice and Plaintiffs ar 25 granted leave to amend the FAC. If Plaintiffs intend to file a second amended complaint i 26 confonnity with this Order, they shall do so within 30 days of the filing of this Order. 27 Plaintiffs do not timely file a second amended complaint, the Richters and USAA shall file 28

-13- Decision and Order Motion to Dismiss CV0260-11 answer to the remaining portions of the FAC within the time provided under the Guam Rules 0

2 Civil Procedure. 3 The motion to dismiss all claims against T &A is hereby GRANTED as T &A is not

4 proper party to this lawsuit. 5 The motion to dismiss Plaintiffs' request for attorney's fees is not ripe for decision at thi

6 time given the possibility of future amendment of the FAC and is DENIED. 7

8 th It is SO ORDERED this 13 day of March, 2012. 9

11 . LAMORENA III 12 Presiding Judge,

-14-