Witold Kowbel v. USC

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 29, 2020
• Docket: 19-56272
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 29 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

WITOLD KOWBEL, No. 19-56272

Plaintiff-Appellant, D.C. No. 2:19-cv-02088-JAK-AS

v. MEMORANDUM* UNIVERSITY OF SOUTHERN CALIFORNIA; AINSLEY CARRY,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California John A. Kronstadt, District Judge, Presiding

Submitted October 26, 2020**

Before: McKEOWN, RAWLINSON, and FRIEDLAND, Circuit Judges.

Witold Kowbel appeals pro se from the district court’s judgment dismissing

his diversity action alleging state law claims for intentional and negligent infliction

of emotional distress arising out of academic disciplinary proceedings involving

his son. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). dismissal for failure to state a claim under Federal Rule of Civil Procedure

12(b)(6). Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1040 (9th

Cir. 2011). We affirm.

The district court properly dismissed Kowbel’s claim for intentional

infliction of emotional distress (“IIED”) because Kowbel failed to allege facts

sufficient to show extreme and outrageous conduct or that defendants’ actions were

directed towards Kowbel. See Hughes v. Pair¸ 209 P.3d 963, 976 (Cal. 2009)

(elements of IIED claim).

The district court properly dismissed Kowbel’s claim for negligent infliction

of emotional distress (“NIED”) as a bystander because Kowbel failed to allege

facts sufficient to show that he was present at the time of defendant’s allegedly

negligent act and was contemporaneously aware that the act caused injury to his

son. See Fluharty v. Fluharty, 69 Cal. Rptr. 2d 244, 248 (Ct. App. 1997) (elements

of a bystander claim for NIED).

The district court did not abuse its discretion by dismissing Kowbel’s

complaint without leave to amend because amendment would have been futile.

See Cervantes, 656 F.3d at 1041 (setting forth standard of review and explaining

that dismissal without leave to amend is proper when amendment would be futile);

see also Mpoyo v. Litton Electro-Optical Sys., 430 F.3d 985, 987 (9th Cir. 2005)

(elements of claim preclusion).

2 19-56272 Defendants’ motion for judicial notice (Docket Entry No. 15) is granted.

AFFIRMED.

3 19-56272