1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ARA KARAMANOUKIAN, 2:22-cv-01677-KJN 12 Plaintiff, ORDER 13 v. 14 MIKALAH RAYMOND LIVIAKIS, et al. 15 Defendants. 16
18 Plaintiff Ara Karamanoukian filed a state court action against defendant Mikalah 19 Raymond Liviakas for assault, battery, and intentional infliction of emotional distress (IIED) 20 sustained at a country club.1 (ECF No. 1-1.) Presently pending before this court is defendant’s 21 second motion to dismiss. (ECF No. 24.) Plaintiff filed an opposition to defendant’s motion to 22 dismiss, and defendant filed a reply. (ECF Nos. 26, 27.) 23 Defendant scheduled a hearing on the motion for May 9, 2023. (ECF No. 24.) The court 24 vacated the hearing in accordance with Local Rule 230(g) and took the matter under submission 25 on the papers. (ECF No. 28.) For the reasons stated below, the court grants defendant’s motion 26 but grants leave for plaintiff to file an amended complaint within thirty days. 27 1 This case was referred to the undersigned on consent of all parties. 28 U.S.C. § 636(c); (ECF 28 Nos. 5, 14.) 1 I. Background 2 Defendant removed this case to federal court on September 22, 2022, and subsequently 3 moved to dismiss. (ECF Nos. 1, 16.) The complaint alleged that plaintiff sustained injuries while 4 playing a basketball game. (ECF No. 1-1, para. 7.) However, during the hearing on defendant’s 5 motion to dismiss on January 24, 2023, plaintiff clarified that the injuries did not occur during a 6 basketball game or even on a basketball court. Plaintiff informed the court that instead, defendant 7 allegedly “coldcocked” plaintiff from behind on the way to the locker room after the basketball 8 game. 9 In light of these factual discrepancies, on January 27, 2023, the court granted defendant’s 10 motion to dismiss and granted plaintiff leave to file a first amended complaint (FAC) within thirty 11 days, i.e., by February 27, 2023. (ECF No. 22.) Plaintiff filed the FAC on March 17, 2023— 12 nineteen days late.2 (ECF No. 23.) The FAC was amended to remove the allegations that 13 plaintiff’s injuries were sustained while playing basketball, but failed to contain any of the factual 14 corrections that had been discussed at the hearing. 15 The FAC alleges claims for assault, battery, and intentional infliction of emotional distress 16 against defendant and requests punitive damages. (ECF No. 23.) Each of the claims is based on 17 the allegation that defendant “attacked and punched” plaintiff. (ECF No. 23 at para. 8, alleging 18 defendant “attacked and punched” plaintiff.) (See ECF No. 23 at paras. 15 and 24, incorporating 19 by reference para. 8.) However, the FAC contains no additional facts beyond the assertion that 20 defendant “attacked and punched” plaintiff. 21 II. Legal Standards 22 A. Federal Notice Pleading and a Complaint’s Failure to State a Claim 23 Federal Rule of Civil Procedure 8(a) requires that a pleading be “(1) a short and plain 24 statement of the grounds for the court’s jurisdiction . . .; (2) a short and plain statement of the 25 claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which 26 may include relief in the alternative or different types of relief.” Each allegation must be simple, 27 2 Plaintiff’s FAC and opposition motion fail to provide any explanation for the untimely filed 28 FAC. (See ECF Nos. 23 and 25.) 1 concise, and direct. Fed. R. Civ. P. 8(d)(1); see Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 2 (2002) (overruled on other grounds) (“Rule 8(a) is the starting point of a simplified pleading 3 system, which was adopted to focus litigation on the merits of a claim.”). 4 A claim may be dismissed because of the plaintiff’s “failure to state a claim upon which 5 relief can be granted.” Fed. R. Civ. P. 12(b)(6). A complaint fails to state a claim if it either 6 lacks a cognizable legal theory or sufficient facts to allege a cognizable legal theory. Mollett v. 7 Netflix, Inc., 795 F.3d 1062, 1065 (9th Cir. 2015). To avoid dismissal for failure to state a claim, 8 a complaint must contain more than “naked assertions,” “labels and conclusions,” or “a formulaic 9 recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 10 555-57 (2007). In other words, “[t]hreadbare recitals of the elements of a cause of action, 11 supported by mere conclusory statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 12 (2009). Thus, a complaint “must contain sufficient factual matter, accepted as true, to state a 13 claim to relief that is plausible on its face.” Id. “A claim has facial plausibility when the plaintiff 14 pleads factual content that allows the court to draw the reasonable inference that the defendant is 15 liable for the misconduct alleged.” Id. 16 When considering whether a complaint states a claim upon which relief can be granted, 17 the court must accept the well-pled factual allegations as true, Erickson v. Pardus, 551 U.S. 89, 94 18 (2007), and construe the complaint in the light most favorable to the plaintiff, see Papasan v. 19 Allain, 478 U.S. 265, 283 (1986). The court is not, however, required to accept as true 20 “conclusory [factual] allegations that are contradicted by documents referred to in the complaint,” 21 or “legal conclusions merely because they are cast in the form of factual allegations.” Paulsen v. 22 CNF Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). 23 B. Leave to Amend 24 Federal Rule of Civil Procedure 15(a) provides that leave to amend “shall be freely given 25 when justice so requires.” Courts should apply this policy “with extreme liberality.” Owens v. 26 Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001). In determining whether leave 27 to amend is appropriate, courts consider “the presence of any of four factors: bad faith, undue 28 delay, prejudice to the opposing party, and/or futility.” Id. Prejudice to the opposing party is the 1 crucial factor. See Eminence Cap., LLC v. Aspeon, Inc., 316 F.3d 1048, 1051–52 (9th Cir. 2 2003). Id. Absent prejudice, or a strong showing of any of the remaining factors, there exists a 3 presumption under Rule 15(a) in favor of granting leave to amend. Id. Undue delay, by itself, is 4 insufficient to justify denying a motion to amend. Bowles v. Reade, 198 F.3d 752, 758 (9th Cir. 5 1999). 6 III. Analysis 7 The court finds that plaintiff’s FAC fails to state a claim because plaintiff’s claims for 8 assault, battery, and IIED are insufficiently pled.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ARA KARAMANOUKIAN, 2:22-cv-01677-KJN 12 Plaintiff, ORDER 13 v. 14 MIKALAH RAYMOND LIVIAKIS, et al. 15 Defendants. 16
18 Plaintiff Ara Karamanoukian filed a state court action against defendant Mikalah 19 Raymond Liviakas for assault, battery, and intentional infliction of emotional distress (IIED) 20 sustained at a country club.1 (ECF No. 1-1.) Presently pending before this court is defendant’s 21 second motion to dismiss. (ECF No. 24.) Plaintiff filed an opposition to defendant’s motion to 22 dismiss, and defendant filed a reply. (ECF Nos. 26, 27.) 23 Defendant scheduled a hearing on the motion for May 9, 2023. (ECF No. 24.) The court 24 vacated the hearing in accordance with Local Rule 230(g) and took the matter under submission 25 on the papers. (ECF No. 28.) For the reasons stated below, the court grants defendant’s motion 26 but grants leave for plaintiff to file an amended complaint within thirty days. 27 1 This case was referred to the undersigned on consent of all parties. 28 U.S.C. § 636(c); (ECF 28 Nos. 5, 14.) 1 I. Background 2 Defendant removed this case to federal court on September 22, 2022, and subsequently 3 moved to dismiss. (ECF Nos. 1, 16.) The complaint alleged that plaintiff sustained injuries while 4 playing a basketball game. (ECF No. 1-1, para. 7.) However, during the hearing on defendant’s 5 motion to dismiss on January 24, 2023, plaintiff clarified that the injuries did not occur during a 6 basketball game or even on a basketball court. Plaintiff informed the court that instead, defendant 7 allegedly “coldcocked” plaintiff from behind on the way to the locker room after the basketball 8 game. 9 In light of these factual discrepancies, on January 27, 2023, the court granted defendant’s 10 motion to dismiss and granted plaintiff leave to file a first amended complaint (FAC) within thirty 11 days, i.e., by February 27, 2023. (ECF No. 22.) Plaintiff filed the FAC on March 17, 2023— 12 nineteen days late.2 (ECF No. 23.) The FAC was amended to remove the allegations that 13 plaintiff’s injuries were sustained while playing basketball, but failed to contain any of the factual 14 corrections that had been discussed at the hearing. 15 The FAC alleges claims for assault, battery, and intentional infliction of emotional distress 16 against defendant and requests punitive damages. (ECF No. 23.) Each of the claims is based on 17 the allegation that defendant “attacked and punched” plaintiff. (ECF No. 23 at para. 8, alleging 18 defendant “attacked and punched” plaintiff.) (See ECF No. 23 at paras. 15 and 24, incorporating 19 by reference para. 8.) However, the FAC contains no additional facts beyond the assertion that 20 defendant “attacked and punched” plaintiff. 21 II. Legal Standards 22 A. Federal Notice Pleading and a Complaint’s Failure to State a Claim 23 Federal Rule of Civil Procedure 8(a) requires that a pleading be “(1) a short and plain 24 statement of the grounds for the court’s jurisdiction . . .; (2) a short and plain statement of the 25 claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which 26 may include relief in the alternative or different types of relief.” Each allegation must be simple, 27 2 Plaintiff’s FAC and opposition motion fail to provide any explanation for the untimely filed 28 FAC. (See ECF Nos. 23 and 25.) 1 concise, and direct. Fed. R. Civ. P. 8(d)(1); see Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 2 (2002) (overruled on other grounds) (“Rule 8(a) is the starting point of a simplified pleading 3 system, which was adopted to focus litigation on the merits of a claim.”). 4 A claim may be dismissed because of the plaintiff’s “failure to state a claim upon which 5 relief can be granted.” Fed. R. Civ. P. 12(b)(6). A complaint fails to state a claim if it either 6 lacks a cognizable legal theory or sufficient facts to allege a cognizable legal theory. Mollett v. 7 Netflix, Inc., 795 F.3d 1062, 1065 (9th Cir. 2015). To avoid dismissal for failure to state a claim, 8 a complaint must contain more than “naked assertions,” “labels and conclusions,” or “a formulaic 9 recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 10 555-57 (2007). In other words, “[t]hreadbare recitals of the elements of a cause of action, 11 supported by mere conclusory statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 12 (2009). Thus, a complaint “must contain sufficient factual matter, accepted as true, to state a 13 claim to relief that is plausible on its face.” Id. “A claim has facial plausibility when the plaintiff 14 pleads factual content that allows the court to draw the reasonable inference that the defendant is 15 liable for the misconduct alleged.” Id. 16 When considering whether a complaint states a claim upon which relief can be granted, 17 the court must accept the well-pled factual allegations as true, Erickson v. Pardus, 551 U.S. 89, 94 18 (2007), and construe the complaint in the light most favorable to the plaintiff, see Papasan v. 19 Allain, 478 U.S. 265, 283 (1986). The court is not, however, required to accept as true 20 “conclusory [factual] allegations that are contradicted by documents referred to in the complaint,” 21 or “legal conclusions merely because they are cast in the form of factual allegations.” Paulsen v. 22 CNF Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). 23 B. Leave to Amend 24 Federal Rule of Civil Procedure 15(a) provides that leave to amend “shall be freely given 25 when justice so requires.” Courts should apply this policy “with extreme liberality.” Owens v. 26 Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001). In determining whether leave 27 to amend is appropriate, courts consider “the presence of any of four factors: bad faith, undue 28 delay, prejudice to the opposing party, and/or futility.” Id. Prejudice to the opposing party is the 1 crucial factor. See Eminence Cap., LLC v. Aspeon, Inc., 316 F.3d 1048, 1051–52 (9th Cir. 2 2003). Id. Absent prejudice, or a strong showing of any of the remaining factors, there exists a 3 presumption under Rule 15(a) in favor of granting leave to amend. Id. Undue delay, by itself, is 4 insufficient to justify denying a motion to amend. Bowles v. Reade, 198 F.3d 752, 758 (9th Cir. 5 1999). 6 III. Analysis 7 The court finds that plaintiff’s FAC fails to state a claim because plaintiff’s claims for 8 assault, battery, and IIED are insufficiently pled. At the outset, the court notes that defendant’s 9 motion to dismiss challenges only the sufficiency of plaintiff’s punitive damages allegations, and 10 not plaintiff’s claims for assault, battery and IIED. (ECF No. 27 at 2 (“This motion is not an 11 attack on the sufficiency of the causes of action for assault, battery, and IIED; rather this motion 12 solely attacks the sufficiency of the punitive damages pleading.”.) However, the fact that 13 defendant’s motion challenges only plaintiff’s punitive damages allegations does not preclude the 14 court from finding that plaintiff’s FAC fails to state a claim. See, e.g., Sparling v. Hoffman 15 Const. Co., Inc., 864 F.2d 635, 637–38 (9th Cir. 1988) (the court “may act on its own initiative to 16 note the inadequacy of a complaint and dismiss it for failure to state a claim […]”). The court 17 grants defendant’s motion and grants plaintiff leave to amend. 18 A. Failure to State a Claim 19 The FAC alleges assault, battery, and intentional infliction of emotional distress against 20 defendant, but does not contain sufficient facts to support those claims. (ECF No. 23.) The basis 21 of each of plaintiff’s claims stems from the allegation that defendant “attacked and punched 22 [plaintiff][…]”. (ECF No. 23, para. 8.) Plaintiff informed the court of additional facts during the 23 January 24, 2023 hearing on defendant’s first motion to dismiss. Plaintiff told the court that 24 defendant “coldcocked” plaintiff after a game of basketball as plaintiff headed toward the locker 25 room. These facts were not included in the FAC. Instead, the FAC simply asserts that defendant 26 “attacked and punched” plaintiff at a country club and recites the elements of assault, battery, and 27 IIED. (Id., paras. 6-34.) Thus, plaintiff’s FAC is precisely the type of pleading that Iqbal and 28 Twombly prohibit: “[t]hreadbare recitals of the elements of a cause of action, supported by mere 1 conclusory statements. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555-57 (to avoid dismissal 2 for failure to state a claim, a complaint must contain more than “naked assertions,” “labels and 3 conclusions,” or “a formulaic recitation of the elements of a cause of action”). 4 Plaintiff’s claims for assault, battery, and IIED each include a request for punitive 5 damages. (See ECF Nos. 23 at paras. 13, 22, and 33, each alleging defendant is “guilty of malice, 6 fraud, or oppression”). As with plaintiff’s claims for assault, battery, and IIED, plaintiff’s 7 punitive damages requests do not allege specific acts supporting the claim that defendant acted 8 “maliciously, fraudulently and oppressively.” Therefore, plaintiff’s requests for punitive damages 9 are insufficiently pled. 10 Accordingly, because the FAC does not contain any factual allegations to support 11 plaintiff’s claims for assault, battery, and IIED and request for punitive damages, plaintiff’s FAC 12 fails to state a claim. 13 B. Leave to Amend 14 In determining whether leave to amend is appropriate, the court considers the presence of 15 bad faith, undue delay, prejudice to the opposing party, and futility of any amendment. Owens, 16 244 F.3d at 712. Here, the only factor present is undue delay. Plaintiff’s FAC was filed nineteen 17 days late, without any explanation or request for an extension of time. (ECF No. 23.) However, 18 while failure to comply with a court’s order may be grounds for sanctions under Local Rule 110, 19 undue delay by itself is insufficient to justify denying a motion to amend. Bowles, 198 F.3d at 20 758 ([u]ndue delay, by itself, is insufficient to justify denying a motion to amend.”). More 21 importantly, defendant has not shown that granting leave to amend will cause prejudice. Absent a 22 showing of prejudice, or a strong showing of any of the remaining factors, there exists a 23 presumption under Rule 15(a) in favor of granting leave to amend. Eminence Cap., LLC, 316 24 F.3d at 105. Accordingly, the court grants request for further leave to amend.3 25
3 Plaintiff’s failure to comply with court deadlines is very concerning. In addition to plaintiff’s 26 late filed FAC, plaintiff also late filed its statement of opposition to defendant’s first motion to 27 dismiss. (ECF No. 18.) While the court recognizes that on this occasion, plaintiff informed the court that the reason for the delay was a calendaring error, (id. at 2,) such errors do not relieve 28 plaintiff of the obligation to comply with deadlines set by the Local Rules and the court. Further, ] Plaintiff is advised that the court cannot refer to a prior complaint or other filing in order 2 || to make the second amended complaint complete. L.R. 220 (an amended complaint must be 3 || complete in itself without reference to any prior pleading). Nor can the court simply refer to 4 || representations made at a hearing when finding whether a complaint contains sufficient facts to 5 || support a claim. Thus, any amended complaint must establish that the pleading requirements 6 || have been met. 7 TV. Conclusion 8 Accordingly, the court grants defendant’s motion to dismiss for failure to state a claim. 9 | Plaintiff is granted leave to file an amended complaint within thirty days. Defendant’s motion to 10 || strike and motion for a more definite statement are DENIED as moot. ORDER 12 Accordingly, IT IS HEREBY ORDERED that: 13 4 1. Defendant’s motion to dismiss (ECF No. 24) is GRANTED; 2. Plaintiff's FAC is dismissed. Plaintiff is GRANTED leave to file an amended 5 complaint within thirty days; and 16 3. Defendant’s motion to strike and motion for a more definite statement are 17 DENIED as moot. 18 Dated: May 8, 2023 19 20 —-f’ Al i; Noreen 21 KENDALL J. EK UNITED STATES MAGISTRATE JUDGE RS, kara.1677. 23 24 25 plaintiff was instructed by the clerk of court to refile the statement of opposition but failed to do 26 || S°- (See id, docket entry notes stating, “DISREGARD COUNSEL TO REFILE.”) Plaintiff is strongly warned that any continued failure to comply with the court’s order or the Local Rules 27 | will likely result in sanctions. L.R. 110 (“[flailure of counsel or of a party to comply with ... any order of the Court may be grounds for the imposition by the Court of any and all sanctions ... 28 | within the inherent power of the Court”).