Garcia v. Walmart Inc

• Court: District Court, E.D. Washington
• Decided: February 14, 2024
• Docket: 1:23-cv-03116
• Status: Unknown

Opinion

1 2 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 3 Feb 14, 2024 SEAN F. MCAVOY, CLERK 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6

7 ANDREA GARCIA, No. 1:23-CV-03116-MKD 8 Plaintiff, ORDER ADOPTING REPORT AND 9 v. RECOMMENDATION WITH MODIFICATION AND GRANTING 10 WALMART, INC. d/b/a WALMART IN PART AND DENYING IN PART #2269; WAL-MART ASSOCIATES, DEFENDANTS’ MOTION TO 11 INC.; “DOE(S) 1-100” employees of DISMISS WALMART, INC. AND/OR 12 WALMART STORE #2269; and ECF Nos. 7, 18 “CORPORATION(S) XYZ 1-100,” 13 Defendants.

14 Before the Court is a Report and Recommendation, ECF No. 18. 15 Defendants Walmart Inc. d/b/a/ Walmart #2269 and Wal-Mart Associates, Inc. 16 (hereinafter, “Defendants”)1 have moved to dismiss Plaintiff’s claims for 17 retaliation pursuant to 42 U.S.C. § 1981 (Claim 3), negligent supervision (Claim 18

19 1 Although the Complaint lists other Defendants, the two movants are the only 20 Defendants who have appeared in this case to date. 1 5), intentional infliction of emotional distress (Claim 7), and negligent infliction of 2 emotional distress (Claim 8) with prejudice under Fed. R. Civ. P. 12(b)(6). ECF

3 No. 7. The magistrate judge recommends that the Court grant Defendants’ Motion 4 to Dismiss on all four of the challenged claims with prejudice. ECF No. 18. 5 Plaintiff only objects to the recommended dismissal of Claim 5 and requests in the

6 alternative that the Court grant her leave to amend Claim 5 or dismiss Claim 5 7 without prejudice. ECF No. 19. 8 LEGAL STANDARD 9 28 U.S.C. § 636 requires the district judge to “review the magistrate judge’s

10 findings and recommendations de novo if objection is made, but not otherwise.” 11 Vargas v. Evergreen Pro. Recoveries Inc., No. C21-926, 2023 WL 2967317, at *1 12 (citing United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en

13 banc)); see also Fed. R. Civ. P. 72(b) advisory committee’s note to 1983 addition 14 (“[w]hen no timely objection is filed, the court need only satisfy itself that there is 15 no clear error on the face of the record in order to accept the recommendation”). 16 DISCUSSION

17 A. Claims 3, 7, and 8 18 The Plaintiff does not object to the recommended dismissal of Claims 3, 7, 19 and 8 with prejudice. The Court finds there is no clear error, adopts the Report and

20 Recommendation on these claims, and dismisses Claims 3, 7, and 8 with prejudice. 1 B. Claim 5 2 The Court concurs with the Report and Recommendation’s conclusion that

3 Plaintiff has failed to state a plausible claim for negligent supervision sufficient to 4 survive under Rule 12(b)(6). 5 There are four elements in a Washington negligent supervision claim:

6 (1) an employee of the defendant acted outside the scope of her employment, 7 (2) the employee presented a risk of harm to others, (3) the employer knew or should have known in the 8 exercise of reasonable care that the employee posed a risk to others, and 9 (4) the employer’s failure to supervise the employee was the proximate cause of the plaintiff’s harm. 10 McDaniels v. Group Health Co-op., 57 F. Supp. 3d 1300, 1317 (W.D. Wash. 2014) 11 (citing Briggs v. Nova Servs., 147 P.3d 616, 622 (Wash. Ct. App. 2006)). The tort 12 of negligent supervision is not a cognizable claim when an employee acts within 13 the scope of her employment. Richards v. Healthcare Res. Grp., Inc., 131 F. Supp. 14 3d 1063, 1076 (E.D. Wash. 2015). 15 As the magistrate judge observed, the Complaint alleges that “Defendants, at 16 all times therein, acted within the scope of their employment.” ECF No. 18 at 3 17 (citing ECF No. 1 at 2-3 ¶ 5).2 The Complaint contains no other allegations 18

19 2 The Complaint further alleges that “Defendants ‘Doe(s) 1-100’” and “Defendants 20 ‘Corporation(s) XYZ 1-100’ […] in doing the things complained of herein, were 1 regarding the first element of a negligent supervision claim. Plaintiff claims in her 2 response Escobar acted outside the scope of her employment by terminating

3 Plaintiff for a fraudulent reason. ECF No. 12 at 6-8. Plaintiff did not plead this 4 theory in the Complaint. The Court concurs with the magistrate judge’s conclusion 5 that Plaintiff has failed to state a claim upon which relief can be granted, as to

6 Claim 5. 7 The Court next considers Plaintiff’s request for leave to amend. Fed. R. Civ. 8 P. 15(a)(2) provides that a court should freely grant leave to amend the pleadings 9 when justice so requires. “Amendments to pleadings are ‘applied with extreme

10 liberality.’” Key Tronic Corp. v. SkyBell Techs., Inc., No. 23-CV-237, 2023 WL 11 8634781, at *1 (E.D. Wash. Dec. 13, 2023) (quoting Owens v. Kaiser Found. 12 Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001)). Courts consider five factors

13 when deciding whether to grant leave to amend: (1) bad faith, (2) undue delay, 14 (3) prejudice to the opposing party, (4) previous amendments, and (5) futility of the 15 amendment. Forman v. Davis, 371 U.S. 178, 182 (1962); see also United States v. 16 Corinthian Colls., 655 F.3d 984, 995 (9th Cir. 2011). “[T]he court must grant all

17 inferences in favor of allowing amendment.” Griggs v. Pace Am. Grp., Inc., 170 18 F.3d 877, 880 (9th Cir. 1999). 19

20 acting within the course and scope of their employment.” ECF No. 1 at 2 ¶ 3-4. 1 The Davis factors do not clearly weigh against amendment here. There is no 2 evidence of bad faith. Plaintiff asked for leave to amend in her first responsive

3 pleading, at a relatively early stage of the case, so there is no indication of undue 4 delay. Defendants do not contend that they will suffer prejudice if the Court 5 permits amendment. Plaintiff has not previously amended the Complaint.

6 Defendants do contend that amendment would be futile because it would require 7 Plaintiff “to make new allegations wholly inconsistent with the original 8 complaint.” ECF No. 20 at 5-6. However, the Court notes that Paragraph 3 9 through 5 of the Complaint states that “[e]ach Defendant” “Defendant Does 1-100”

10 and “Defendant Corporations X, Y, Z 1-100” were acting within the scope of their 11 employment; the Court observes that Escobar has not been named as a defendant. 12 ECF No. 1 at 2-3 ¶ 5. The other allegations in the Complaint do not so clearly

13 negate the elements of a wrongful supervision claim to prevent amendment. See 14 McDaniels, 57 F. Supp. 3d at 1317. As such, it is not clear that amendment of 15 Claim 5 would be futile. The Court must grant all inferences in favor of 16 amendment. See Griggs, 170 F.3d at 880. The Court therefore grants Plaintiff’s

17 request for leave to amend. 18 Accordingly, IT IS ORDERED: 19 1. The Court ADOPTS in part and MODIFIES in part the Report and

20 Recommendation, ECF No. 18. 1 2. Defendants’ Motion to Dismiss, ECF No. 7, is GRANTED in part 2 and DENIED in part.

3 a. Claims 3, 7, and 8 are DISMISSED with prejudice. 4 b. Claim 5 is DISMISSED without prejudice. 5 c. Plaintiff shall file any amended complaint to replead her negligent

6 supervision claim by no later than February 22, 2024. 7 IT IS SO ORDERED. The District Court Executive is directed to enter this 8 Order and provide copies to the parties. 9 DATED February 14, 2024.

10 s/Mary K. Dimke MARY K. DIMKE 11 UNITED STATES DISTRICT JUDGE 12 13 14 15 16

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