Kinsey v. Department of Veterans Affairs

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Elise M Kinsey, No. CV-19-00835-PHX-SMB

10 Plaintiff, ORDER

11 v.

12 Department of Veterans Affairs, et al.,

13 Defendants. 14 15 Pending before the Court is Defendant AAA Mobility Specialists, LLC’s Motion to 16 Dismiss (Doc. 10). Plaintiff Elise Kinsey filed a response (Doc. 22), and Defendant AAA 17 Mobility Specialists, LLC (“AAA”) filed a reply (Doc. 26). The Court has now considered 18 the pleadings and relevant case law. AAA moves to dismiss the claims against them under 19 Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction, Rule 12(b)(5) 20 for insufficient service of process, and Rule 12(b)(6) for failure to state a claim. 21 I. BACKGROUND 22 Plaintiff initiated this action on November 6, 2018, by filing her Complaint in the 23 Superior Court of Arizona in Maricopa County. (Doc. 1-3 at 3). Service was executed on 24 November 21, 2018, on the Department of Veteran Affairs.1 There is no proof of service 25 on AAA. On February 8, 2019, the United States noticed removal of this matter to the 26

27 1 The notice of service shows that the Maricopa County Sheriff’s Office served the “Department of Veteran/AAA Mobility” on November 21, 2018, “by delivering to Maria 28 Amarillas, Legal Assistant, VA Hospital Legal Department, who is authorized to accept service[.]” (Doc. 1-3 at 23). 1 United States District Court for the District of Arizona. (Doc. 1). 2 Plaintiff, in her Complaint, alleges problems with an electric wheelchair. She said 3 the problems began in January 2018 “when chair spun out as plaintiff ascended up a metal 4 ramp. Plaintiff[’]s right foot became wedged under ramp and chair.” (Doc. 1-3 ¶ 5). She 5 then proceeded to call the VA for a chair evaluation. AAA Mobility sent technicians to 6 evaluate the chair in April 2018. (Doc. 1-3 ¶ 6). She alleges that the technicians found the 7 following: “bent large right tire, bolt missing from rt side suspension, worn wheel.” (Doc. 8 1-3 ¶ 6). Plaintiff stated that Donna, from VA Rehab, would not approve repairs until she 9 made her own evaluation, which was scheduled for July 25, 2018. (Doc. 1-3 ¶ 7). The 10 suspension on both sides of the chair failed before Donna’s evaluation. (Doc. 1-3 ¶ 8). On 11 July 11, 2018, the chair lifted and slammed plaintiffs left foot into bus gate while she was 12 boarding a bus. (Id.). Plaintiff suffered a broken toe as a result. (Id.) At her meeting with 13 Donna, it was agreed that a new scooter would be ordered. (Doc. 1-3 ¶ 9). When Plaintiff 14 returned to the VA to pick up the scooter, she was told the scooter disappeared. (Doc. 1-3 15 ¶ 12). Plaintiff says that another scooter was ordered and was supposed to be delivered 16 two months later but no delivery was ever made. (Id.). She also alleges that there is a 17 dispute about whether the new scooter was a three-wheel scooter or a four-wheel scooter. 18 (Doc. 1-3 ¶ 15). 19 Plaintiff stated that Claim 1 is supported by the Federal Tort Claim Acts, Culpable 20 Negligence, and Professional Negligence/malpractice. (Doc. 1-3 at 5). She stated that 21 Claim 2 is supported by Breach of Contract, NE Code 44-2810 and 13-302. (Doc. 1-3 at 22 5). 23 II. LEGAL STANDARD 24 A. Failure to State a Claim 25 To survive a Rule 12(b)(6) motion for failure to state a claim, a complaint must meet 26 the requirements of Rule 8(a)(2). Rule 8(a)(2) requires a “short and plain statement of the 27 claim showing that the pleader is entitled to relief,” so that the defendant has “fair notice 28 of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 1 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Dismissal 2 under Rule 12(b)(6) “can be based on the lack of a cognizable legal theory or the absence 3 of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police 4 Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). A complaint that sets forth a cognizable legal 5 theory will survive a motion to dismiss if it contains sufficient factual matter, which, if 6 accepted as true, states a claim to relief that is “plausible on its face.” Ashcroft v. Iqbal, 7 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). Facial plausibility exists if 8 the pleader sets forth “factual content that allows the court to draw the reasonable inference 9 that the defendant is liable for the misconduct alleged.” Id. “Threadbare recitals of the 10 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 11 Id. Plausibility does not equal “probability,” but requires “more than a sheer possibility 12 that a defendant has acted unlawfully.” Id. “Where a complaint pleads facts that are 13 ‘merely consistent’ with a defendant’s liability, it ‘stops short of the line between 14 possibility and plausibility of entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 15 557). 16 “A party does not need to plead specific legal theories in the complaint, as long as 17 the opposing party receives notice as to what is at issue in the lawsuit.” Elec. Constr. & 18 Maint. Co. v. Maeda Pac. Corp., 764 F.2d 619, 622 (9th Cir.1985) (citing Am. Timber & 19 Trading Co. v. First Nat’l Bank of Or., 690 F.2d 781, 786 (9th Cir. 1982)). “The complaint 20 should not be dismissed merely because plaintiff’s allegations do not support the legal 21 theory he intends to proceed on, since the court is under a duty to examine the complaint 22 to determine if the allegations provide for relief on any possible theory.” Pruitt v. Cheney, 23 963 F.2d 1160, 1164 (9th Cir. 1991), amended (May 8, 1992) (quoting 5A C. Wright & A. 24 Miller, Federal Practice and Procedure § 1357 at 336–37 (1990)). Furthermore, “[a] 25 document filed pro se is ‘to be liberally construed,’ and ‘a pro se complaint, however 26 inartfully pleaded, must be held to less stringent standards than formal pleadings drafted 27 by lawyers.’” Rivera v. Coventry Health & Life Ins. Co., No. CV-15-02213-PHX-GMS, 28 2016 WL 3548763, at *2 (D. Ariz. June 30, 2016) (quoting Erickson v. Pardus, 551 U.S. 1 89, 94 (2007)). Courts should “continue to construe pro se filings liberally when evaluating 2 them under Iqbal.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). In ruling on a Rule 3 12(b)(6) motion to dismiss, the well-pled factual allegations are taken as true and construed 4 in the light most favorable to the nonmoving party. Cousins v. Lockyer, 568 F.3d 1063, 5 1067 (9th Cir. 2009). 6 B. Insufficient Service of Process 7 Rule 12(b)(5) allows a party to move to dismiss claims against it for insufficient 8 service of process. Fed R. Civ. P. 12(b)(5). “A federal court is without personal 9 jurisdiction over a defendant unless the defendant has been served in accordance with Fed. 10 R. Civ. P. 4.” Travelers Cas. & Sur. Co. of Am. v. Brenneke, 551 F.3d 1132, 1135 (9th Cir. 11 2009) (citation omitted). While “Rule 4 is a flexible rule that should be liberally construed 12 so long as a party receives sufficient notice of the complaint[,]” Whidbee v. Pierce Cty., 13 857 F.3d 1019, 1023 (9th Cir. 2017), “neither actual notice nor simply naming the 14 defendant in the complaint will provide personal jurisdiction” absent substantial 15 compliance with its requirements. Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986). The 16 serving party bears the burden of establishing the validity of service. Brockmeyer v. May, 17 383 F.3d 798, 801 (9th Cir. 2004). 18 C. Personal Jurisdiction 19 Prior to trial, a defendant may move to dismiss the complaint for lack of personal 20 jurisdiction. Data Disc, Inc. v. Systems Tech. Assocs., Inc., 557 F.2d 1280, 1285 (9th Cir. 21 1977); Fed. R. Civ. P. 12(b)(2). Plaintiffs bear the burden of establishing personal 22 jurisdiction. Ziegler v. Indian River Cty., 64 F.3d 470, 473 (9th Cir. 1995). Where the 23 motion is based on written materials rather than an evidentiary hearing, “the plaintiff need 24 only make a prima facie showing of jurisdictional facts.” Sher v. Johnson, 911 F.2d 1357, 25 1361 (9th Cir. 1990). In determining whether the plaintiff has met this burden, 26 uncontroverted allegations in the plaintiff’s complaint must be taken as true, and “conflicts 27 between the facts contained in the parties’ affidavits must be resolved in [the plaintiff’s] 28 favor for purposes of deciding whether a prima facie case for personal jurisdiction exists.” 1 AT & T v. Compagnie Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir. 1996). 2 III. ANALYSIS 3 A. Procedural Defect 4 In addition to Plaintiff’s Response (Doc. 22), Plaintiff filed an additional “Reply” 5 (Doc. 27) without moving for leave to do so. The rules do not contain a provision allowing 6 parties to file sur-replies. See Armenta v. Spencer, No. CV-16-00697-TUC-DCB, 2018 7 WL 4698648, at *1 (D. Ariz. Oct. 1, 2018) (“There is no provision for Sur-replies.”). And 8 even then, “[c]ourts generally view motions for leave to file a sur-reply with disfavor.” 9 Whitewater W. Indus., Ltd. v. Pac. Surf Designs, Inc., No. 3:17-CV-01118-BEN-BLM, 10 2018 WL 3198800, at *1 (S.D. Cal. June 26, 2018). The Court will strike Doc. 27 to the 11 extent it is a second response to Defendant’s Motion to Dismiss or a “sur-reply” to 12 Defendant’s Reply. 13 B. Failure to State a Claim 14 AAA argues that the Complaint does not allege a cause of action or facts that would 15 give rise to AAA’s liability. AAA notes that the only allegations against AAA in the 16 Complaint are that AAA “sent out technicians who evaluated the chair; findings: bent right 17 tire, bolt missing from rt side suspension, worn wheel”; that Plaintiff “had to call AAA 18 Mobility a month later, to find out that Donna (VA Rehab) would not permit the needed 19 repairs until she made her own personal unwarranted evaluation”; and that Defendant VA 20 “ignored” Plaintiff’s request for a replacement power chair from a different distributor due 21 to an alleged “long standing relationship with Daniel and AAA Mobility.” (Doc. 10 at 5). 22 AAA asserts that these allegations, even when taken as true, do not constitute a cognizable 23 legal theory. 24 Plaintiff does address AAA’s argument in her response but only reiterates the facts 25 alleged in the Complaint. In the Complaint, Plaintiff asserts liability under the Federal Tort 26 Claim Acts (“FTCA”), but “the United States is the only proper party defendant in an 27 FTCA action[.]” Kennedy v. U.S. Postal Serv., 145 F.3d 1077, 1078 (9th Cir. 1998). 28 Plaintiff also asserts liability under claims of “Culpable Negligence” and “Professional 1 Negligence/malpractice,” but has not made any allegations of negligence. Additionally, 2 she asserts liability for Breach of Contract, but none of the allegations indicate there was a 3 contract between Plaintiff and AAA. Lastly, she asserts liability under NE Code 44-2810 4 and 13-302. “NE Code 44-2810” is a statute under Nebraska’s Hospital-Medical Liability 5 Act. Plaintiff has alleged no activities occurring in Nebraska, or even outside of the state 6 of Arizona. “13-302 Criminal Liability,” which the Court assumes refers to A.R.S. 7 § 13-302, is a statute in Arizona’s criminal code. “The general rule is that no private cause 8 of action should be inferred based on a criminal statute where there is no indication 9 whatsoever that the legislature intended to protect any special group by creating a private 10 cause of action by a member of that group,” Phoenix Baptist Hosp. & Med. Ctr., Inc. v. 11 Aiken, 877 P.2d 1345, 1350 (Ariz. Ct. App. 1994) (internal quotation marks and citation 12 omitted). These statutes are inapplicable to Plaintiff’s alleged facts. 13 Based on the sparse allegations against AAA and lack of cognizable legal theory, 14 Plaintiff has failed to state a plausible claim to relief. AAA’s Motion to Dismiss is 15 therefore granted. 16 C. Lack of Service/ Lack of Personal Jurisdiction 17 Even if Plaintiff’s Complaint had stated a claim, AAA alleges that the Court lacks 18 jurisdiction over it because it was not properly served. Plaintiff does not address AAA’s 19 allegation in her response. 20 Service of Process had to be completed within 90 days of filing under either the 21 Arizona Rules of Civil Procedure, Rule 4.1 and 4, or Federal Rules of Civil Procedure, 22 Rule 4. The service deadline was February 4, 2019. No service was accomplished by that 23 date and Plaintiff never requested an extension of time for service. While the filed notice 24 of service lists the defendant as “Department of Veteran/AAA Mobility,” it also shows that 25 service was effected only at the “VA Hospital Legal Department.” (Doc. 1-3 at 23). AAA 26 asserts it has never been served, and it is the serving party that bears the burden of 27 establishing the validity of service. Brockmeyer, 383 F.3d at 801. Plaintiff has not met her 28 burden of establishing that AAA was properly served. 1 Therefore, the Court lacks jurisdiction over Defendant AAA and dismisses 2|| Plaintiff's Complaint under Rule 12(b)(5) without prejudice. 3 D. Attorney’s Fees 4 AAA requests attorney’s fees on the basis that Plaintiff has alleged a breach of || contract. Under A.R.S. § 12-341.01, “[i]n any contested action arising out of a contract, || express or implied, the court may award the successful party reasonable attorney fees.” 7\| When determining whether attorney’s fees should be granted under § 12-341.01, the Court 8 || can consider the following factors: (1) “The merits of the claim or defense presented by 9|| the unsuccessful party”; (2) “The litigation could have been avoided or settled and the 10 || successful party’s efforts were completely superfluous in achieving the result”; (3) 11 || “Assessing fees against the unsuccessful party would cause an extreme hardship”; (4) “The 12 || successful party did not prevail with respect to all of the relief sought”; (5) “[T]he novelty 13} of the legal question presented, and whether such claim or defense had previously been adjudicated in this jurisdiction”; (6) “[W]hether the award in any particular case would 15 || discourage other parties with tenable claims or defenses from litigating or defending 16 || legitimate contract issues for fear of incurring liability for substantial amounts of attorney’s fees.” Associated Indem. Corp. v. Warner, 694 P.2d 1181, 1184 (1985). 18 The Court denies AAA’s request for attorney’s fees, noting that assessing fees in || this case would cause Plaintiff an extreme hardship. 20 Accordingly, 21 IT IS ORDERED granting Defendant AAA Mobility Specialists, LLC’s Motion || to Dismiss and denying its request for attorney’s fees (Doc. 10). 23 IT IS FURTHER ORDERED striking Plaintiffs “sur-reply” (Doc. 27). 24 Dated this 4th day of September, 2019. 25 — 26 S BS ee Gnted States District lodge 28

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