Opinion
Case No.: 2:22-cv-01485-GMN-VCF
2023-06-29
My Van Thi ANDERSON, Plaintiff, v. ALBERTSON'S LLC, et al., Defendants.
Jacob S. Smith, David T. Gluth, II, Henness & Haight, Las Vegas, NV, for Plaintiff. Jacquelyn Michelle Franco, Jack P. Burden, Backus, Carranza & Burden, Las Vegas, NV, Dallin Knecht, Las Vegas, NV, for Defendant Albertson's LLC. Michael A. Federico, Olson, Cannon, Gormley, Angulo & Stoberski, Las Vegas, NV, for Defendant Haugebak Construction Company.
Jacob S. Smith, David T. Gluth, II, Henness & Haight, Las Vegas, NV, for Plaintiff. Jacquelyn Michelle Franco, Jack P. Burden, Backus, Carranza & Burden, Las Vegas, NV, Dallin Knecht, Las Vegas, NV, for Defendant Albertson's LLC. Michael A. Federico, Olson, Cannon, Gormley, Angulo & Stoberski, Las Vegas, NV, for Defendant Haugebak Construction Company.
ORDER
Gloria M. Navarro, District Judge
Pending before the Court is the Motion to Dismiss, (ECF No. 22), filed by Defendant Haugebak Construction Company ("Defendant"). Plaintiff My Van Thi Anderson ("Plaintiff") filed a Response, (ECF No. 27), to which Defendant filed a Reply, (ECF No. 28).
For the reasons discussed below, the Court DENIES Defendant's Motion to Dismiss.
I. BACKGROUND
This is a trip-and-fall case removed from state court. On August 9, 2020, Plaintiff "tripped over an electrical box in the walkway of the checkout aisle" at an Albertson's store. (Am. Compl. ¶ 12, ECF No. 15); (Compl. ¶ 14, Ex. A to Pet. Removal, ECF No. 1-3). Nearly two years later, Plaintiff filed her Complaint in state court, naming Albertson's as a defendant. (Compl. ¶ 2, Ex. A to Pet. Removal). Plaintiff also named unknown "Roe" and "Doe" defendants who were "responsible in some manner for the events and happenings upon which this action is premised[,]" including "employees, independent contractors, subcontractors, suppliers, cleaning personnel, maintenance staff, and/or volunteers." (Id. ¶ 3, Ex. A to Pet. Removal). Plaintiff asserted that all defendants, which included the "Roe" and "Doe" defendants, "were charged with controlling, inspecting, maintaining, managing, or were otherwise responsible" for the premises at the Albertson's which Plaintiff's accident occurred. (Id. ¶ 11, Ex. A to Pet. Removal). Plaintiff's Complaint asserted claims for negligence and negligent hiring, training, supervision, and retention against all defendants. (Id. ¶¶ 10-35, Ex. A to Pet. Removal).
Albertson's subsequently removed the case to this Court based on diversity jurisdiction. (See generally Pet. Removal, ECF No. 1). "On February 7, 2023, Plaintiff was informed by counsel for Albertson's that [Defendant] was the company who had installed the electrical box/hazard over which Plaintiff tripped." (Resp. 3:12-13, ECF No. 27). Following a stipulation between Albertson's and Plaintiff, (ECF No. 13), Plaintiff filed her Amended Complaint on March 20, 2023, naming Defendant in place of one of the Roe defendants and bringing the same causes of action. (Resp. 3:14-16); (Am. Compl.). Defendant then filed the instant Motion to Dismiss ("MTD"), (ECF No. 22), which the Court discusses below.
II. LEGAL STANDARD
Dismissal is appropriate under Rule 12(b)(6) where a pleader fails to state a claim upon which relief can be granted. Federal Rule of Civil Procedure ("Fed. R. Civ. P.") 12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A pleading must give fair notice of a legally cognizable claim and the grounds on which it rests, and although a court must take all factual allegations as true, legal conclusions couched as factual allegations are insufficient. Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Accordingly, Rule 12(b)(6) requires "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. This standard "asks for more than a sheer possibility that a defendant has acted unlawfully." Id.
"Generally, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion." Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). "However, material which is properly submitted as part of the complaint may be considered." Id. Similarly, "documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss." Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). On a motion to dismiss, a court may also take judicial notice of "matters of public record." Mack v. S. Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if a court considers materials outside of the pleadings, the motion to dismiss is converted into a motion for summary judgment. Fed. R. Civ. P. 12(d).
If the court grants a motion to dismiss for failure to state a claim, leave to amend should be granted unless it is clear that the deficiencies of the complaint cannot be cured by amendment. DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992). Pursuant to Rule 15(a), the court should "freely" give leave to amend "when justice so requires," and in the absence of a reason such as "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc." Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962).
III. DISCUSSION
A. Conversion to Motion for Summary Judgment
At the outset, Plaintiff argues Defendant's Motion to Dismiss should be converted into a motion for summary judgment because it relies on exhibits outside the Amended Complaint. (Resp. 4:4-25). The Court disagrees.
"A court may . . . consider certain materials—documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice—without converting the motion to dismiss into a motion for summary judgment." United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). And a "court may take judicial notice of the filings on the docket in a case before that court." Ward v. Crow Vote LLC, 634 F.Supp.3d 800, 807 (C.D. Cal. 2022) (citing United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980)).
Defendant attached a copy of the following exhibits to its Motion to Dismiss: (1) Plaintiff's Complaint; (2) Albertson's and Plaintiff's Stipulation and Order to Amend the Complaint; (3) Albertson's, Plaintiff's, and Defendant's Stipulation and Order to Extend Discovery; and (4) Plaintiff's Amended Complaint. (See generally MTD). All these exhibits are documents filed with the Court and represented on the docket. (See Compl., Ex. A to Pet. Removal); (Stip. Am. Compl., ECF No. 13); (Stip. Extend Discovery, ECF No. 18); (FAC, ECF No. 15). Accordingly, these exhibits are subject to judicial notice, and consideration of these exhibits do not require the Court to convert Defendant's Motion to Dismiss into a motion for summary judgment. Ward, 634 F.Supp.3d at 806-07.
B. Motion to Dismiss
Defendant claims Plaintiff's Amended Complaint does not relate back to the original, and therefore, the causes of action alleged against it in the Amended Complaint fall outside the applicable statute of limitations. (MTD 5:7-28).
Fed. R. Civ. P. 15(c) governs whether an amended pleading relates back to the date of an original pleading. An amended pleading may relate back to the date of the original pleading if "the law that provides the applicable statute of limitations allows relation back." Fed. R. Civ. P. 15(c)(1)(A). The Ninth Circuit has held that Rule 15(c)(1) incorporates the relation back rules of state law "when that state's law provides the applicable statute of limitations and is more lenient." Butler v. Nat'l Cmty. Renaissance of Cal., 766 F.3d 1191, 1198-1201 (9th Cir. 2014). The parties agree Nevada law provides the applicable statute of limitations in this case. (Resp. 5:3-8:9); (Reply 4:22-7:27, ECF No. 28).
The Nevada rule states that if the name of a defendant is unknown "the defendant may be designated by any name" and once it's discovered, "the pleader should promptly substitute the actual defendant for a fictious party." Nevada Rule Civil Procedure ("Nev. R. Civ. P.") 10(d). The Supreme Court of Nevada established a three-part test for relation back when a party attempts to name a previously labeled Roe or Doe defendant. The test requires:
(1) pleading fictious or do defendants in the caption of the complaint; (2) pleading the basis for naming defendants by other than their true identity, and clearly specifying the connection between the intended defendants and the conduct, activity, or omission upon which the cause of action is based; and (3) exercising reasonable diligence in ascertaining the true identity of the intended defendants and promptly moving to amend the complaint in order to substitute the actual for the fictional.Nurenberger Hercules-Werke GMBH v. Virostek, 107 Nev. 873, 822 P.2d 1100, 1106 (1991), abrogated on other grounds by Costello v. Casler, 127 Nev. 436, 254 P.3d 631 (2011). "Satisfaction of all three of the aforementioned elements is necessary to the granting of an amendment that relates back to the date of the filing of the original complaint. Id. It is undisputed that Plaintiff satisfied the first prong by naming Roe and Doe defendants in her initial Complaint. (Compl. ¶ 3, Ex. A to Pet. Removal). Thus, the Court's inquiry is limited to the remaining two prongs.
1. Clearly Specified Connection Between Alleged Conduct & Intended Defendant
Defendant argues Plaintiff failed to clearly specify a connection between it and the alleged conduct. (Reply 5:18-20). Specifically, Defendant posits Plaintiff's Amended Complaint, and not the original, "contains the connective language about 'installation of the electrical box cover' " that links Defendant to Plaintiff's causes of action. (Id. 6:8-9).
The Supreme Court of Nevada in Nurenberger expressed "it should be clear that fictitious defendants may not be properly included in a complaint merely as a precautionary measure in the event theories of liability other than those set forth in the complaint are later sought to be added by amendment." Nurenberger, 822 P.2d at 1105. The Nurenberger court explained a clear correlation between the fictitious defendants and the pleaded factual basis for liability is necessary to supply "the basis for recognizing the intended defendants who, in legal contemplation, are parties to the cause of action . . . . Rule 10(a) was not intended to reward indolence or lack of diligence by giving plaintiffs an automatic method of circumventing statutes of limitations." Nurenberger, 822 P.2d at 1105 (emphasis in original). The Nurenberger court found the plaintiff had properly pleaded fictitious Doe defendants by clearly identifying the target of the complaint as "the party or parties who 'designed, manufactured, assembled and marketed, advertised and otherwise supplied into the stream of commerce' the defective [ ] moped" which was the basis for the suit. Id. at 1105.
Past decisions by this court and the Nevada Court of Appeals applying Nurenberger are instructive. In Bradley v. Total Facility, Inc., this court found the plaintiff's general Doe and Roe pleadings failed to define the necessary connection between the Doe and Roe defendants to the cause of action. No. 2:19-cv-01413, 2020 WL 4904631 (D. Nev. Aug. 20, 2020). There, the plaintiff suffered an injury at her place of work when a ceiling tile collapsed on her. Id. at *1. Later in the lawsuit, the plaintiff discovered the ceiling collapsed due to a faulty HVAC system and sought to substitute the HVAC system's manufacturer for a Doe defendant. The court found the plaintiff did not clearly specify the connection between the intended defendants and the conduct upon which the cause of action was based. Specifically, the court observed plaintiff's original complaint broadly stated there was an agency relationship between the Doe and named defendants; "that a Doe defendant operated the floor, which was not relevant to [p]laintiff's injuries; that the Doe defendants manufactured, operated, and installed something, without ever mentioning what was manufactured, operated, or installed; and that the Doe defendants [were] responsible in 'some manner for the events,' without ever mentioning the HVAC system.' " Id. at *3. The court concluded the plaintiff's "use of broad language attempts to permanently leave the door open to join defendants, regardless of the statute of limitations." Id. The court further observed "that is not what Rule 10 intends and it is not what Rule 10 permits." Id.
This court reached the same outcome in Cruz v. Durbin. Nos. 2:12-cv-51-, 2:12-cv-1267, 2014 WL 5449710 (D. Nev. Oct. 17, 2014). Cruz involved a motor vehicle accident that was caused by an allegedly defectively manufactured trailer. Id. at *9. The original complaint in Cruz included Roe defendants who "[were] responsible in some manner" for the incident, but the subject of the Cruz complaint was limited to a defective trailer. Id. at *4. The plaintiffs in Cruz subsequently learned the subject trailer's allegedly defective brakes caused the accident. Id. The plaintiff then filed an amended complaint that substituted in Meritor, Inc., the company who manufactured the allegedly defective brakes. This court dismissed Meritor, Inc., finding the plaintiffs could not avail themselves of Rule 10. Id. Specifically, the court noted that "[r]ather than targeting a company that manufactures air brake systems, like Meritor," the original complaint was limited to asserting a defective trailer and generally alleging the Roe defendants were " 'responsible in same manner' for the accident." Id. The Court went on to explain that in order for the amended complaint to relate back to the date of his original complaint, the original complaint must 'clearly specify [ ] a connection between' Meritor and the accident." Cruz at *4 (citation omitted).
The Court also considers the Nevada Court of Appeals' recent decision in Howell. 478 P.3d 410 (App. 2020) (table). In Howell, the plaintiff alleged that "Defendants, CROSSFIT, PACE JOINT and/or BRAD MANAGEMENT, so carelessly and negligently created, owned, controlled, inspected, and/or maintained [a] folding chair on the premises in an unstable and dangerous manner, thereby causing Plaintiff to sustain serious injuries and damages." Id. The plaintiff further provided for Doe and Roe defendants, stating they were "responsible in some manner for the events and happenings referred to, and caused damages proximately to Plaintiff as herein alleged." Id.
Subsequently in the litigation, plaintiff moved to amend the complaint to substitute in a real defendant who had also negligently maintained the folding chair at issue. Id. The district court denied the motion. Id. The district court noted plaintiff's complaint generally alleged the Doe and Roe defendants were "responsible in some manner" for the injuries caused by the subject folding chair. Id. The district court found this language failed to clearly specify the connection between the intended defendants and the cause of action, concluding the complaint made no allegation the Doe and Roe defendants engaged in the same negligent conduct with respect to the folding chair as the named defendants. Id.
The Nevada Court of Appeals reversed. The Howell court noted Plaintiff had alleged the Doe and Roe defendants engaged in some manner in the conduct causing plaintiff's injuries "as herein alleged." Id. (emphasis in original). The Nevada Court of Appeals then noted the negligence allegations in the complaint referenced "Defendants" in addition to specifically named defendants. Id. The Nevada Court of Appeals concluded the district court "elevate[d] form over substance," as when the general reference to "defendants" in the negligence allegations were "read together with the aforementioned provision regarding the doe and roe defendants," the complaint "sufficiently conveys that [plaintiff] believed both the named and fictitious defendants may be liable for negligently maintaining the folding chair." Id.
Two principles can be drawn from these cases. First, Bradley and Cruz demonstrate that a plaintiff's original complaint must identify the specific cause of the injury as it relates to the fictitious defendant. "Nurenberger requires more than talismanic or boilerplate language." Shen v. Life Is Beautiful, LLC, 2022 WL 17352956, at *4 (Nev. Dist. Ct. Aug. 12, 2022). Second, Howell makes clear a plaintiff's original complaint should be read liberally, focusing on substance over form.
As stated, Plaintiff's original Complaint named "Roe" and "Doe" defendants who were "responsible in some manner for the events and happenings upon which this action is premised[,]" including "employees, independent contractors, subcontractors, suppliers, cleaning personnel, maintenance staff, and/or volunteers." (Compl. ¶ 3, Ex. A to Pet. Removal). Plaintiff asserted that "defendants," which included the "Roe" and "Doe" defendants, "were charged with controlling, inspecting, maintaining, managing, or were otherwise responsible" for the premises at Albertson's. (Id. ¶ 11, Ex. A to Pet. Removal). Plaintiff further alleged defendants breached their duty to Plaintiff by allowing "carelessly and negligently creating, owning, controlling, inspecting, and maintaining the premises" so as to allow "a hazardous condition to exist on the floor, that being an electrical box in the walkway of the checkout aisle . . . which caused [her] to trip," injuring her. (Id. ¶ 14, Ex. A to Pet. Removal).
Unlike in Bradley and Cruz, Plaintiff's original Complaint alleged the specific product which purportedly caused her injury, that being the electrical box. Nevertheless, Defendant maintains Plaintiff fails the second Nurenberger prong because she did not clearly specify a connection between it and the alleged conduct. (Reply 5:18-20). Specifically, Defendant posits Plaintiff's Amended Complaint, and not the original, "contains the connective language about 'installation of the electrical box cover' " that links Defendant to Plaintiff's causes of action. (Id. 6:8-9). Essentially, Defendant's position is that Nurenberger requires a plaintiff's original complaint to also use the "correct" terminology for an amendment to relate back. Applying Defendant's argument, Plaintiff should have included allegations that a fictitious entity installed, designed, manufactured, or supplied the electrical box.
Defendant's argument, while well-taken, is rejected. Reading Plaintiff's Complaint liberally and focusing on its substance over form, the Court finds Plaintiff's Complaint contains adequate connective allegations concerning Defendant. As in Howell, Plaintiff specified her references to "defendants" included the "Roe" and "Doe" defendants. And here, while Plaintiff's Complaint does not explicitly mention the word "installation," it does mention that Defendants negligently "creat[ed] . . . inspect[ed], and maintain[ed] the premises" by allowing the electrical box to remain in the checkout aisle. (Compl. ¶ 14, Ex. A to Pet. Removal). In substance, these allegations set forth the basis for naming Defendant and its connection to the conduct upon which Plaintiff's claims are based, despite not using what Defendant categorizes as the proper form. See Droge v. AAAA Two Star Towing, Inc., 136 Nev. 291, 468 P.3d 862, 878 (App. 2020) (acknowledging that pleadings must be liberally construed and are not dependent upon the use of precise legal terminology). The Court's conclusion is guided by the general proposition that "[m]odern rules of procedure are intended to allow the court to reach the merits, as opposed to disposition on technical niceties." Costello, 254 P.3d 631 at 635; Passarelli v. J-Mar Development, 102 Nev. 283, 720 P.2d 1221, 1223 (1986) ("This Court has repeatedly held that cases are to be heard on the merits if possible."). In sum, the Court finds that Plaintiff has satisfied the second Nurenberger prong.
2. Diligence in Ascertaining Defendant's Identity
Next, Defendant argues Plaintiff failed to act with the requisite diligence and promptness in submitting his request to amend his Complaint. (MTD 12:1-16); (Reply 5:1-7:10). Specifically, Defendant contends Plaintiff's seven-month delay between the filing of her Complaint and Amended Complaint demonstrates she unreasonably delayed in amending her pleading. (Reply 5:1-7:10).
Alternatively, Defendant's Motion and Reply advance that this Court should find Plaintiff's delay was two years — measuring from the date her accident occurred on August 9, 2020, to her filing her Amended Complaint on March 20, 2023. (MTD 12:1-15); (Reply 6:22-7:7). The Court disagrees with Defendant's proposed accrual date. In examining the third Nurenberger prong, the Supreme Court of Nevada has explained that courts should consider, among other factors, "whether the plaintiff utilized judicial mechanisms such as discovery to inquire into a defendant's true identity." Sparks v. Alpha Tau Omega Fraternity, Inc., 127 Nev. 287, 255 P.3d 238, 243 (2011). A plaintiff does not have access to judicial mechanisms such as discovery until they file a lawsuit. Therefore, while the Court recognizes Plaintiff waited two years from the date of her accident to file her action in state court, it disagrees with Defendant that this delay is relevant for measuring the third Nurenberger prong. See Bradley, 2020 WL 4904631, at *4 (noting that the plaintiff "did not use judicial mechanisms to identify the Doe defendants for nearly fourteen months") (emphasis added); Kreiser v. VS2R Engineering, Inc., No. 2:16-cv-01361, 2018 WL 6705531, at *4 (D. Nev. Dec. 20, 2018) (considering the plaintiffs were "plodding along through discovery" in evaluating the third Nurenberger prong). Instead, the Court measures Plaintiff's delay from the date she first filed her lawsuit in state court.
"The reasonable diligence requirement is intended to guard against the abuse of Doe and Roe defendants as placeholders during the commencement of litigation and 'was not intended to reward indolence or lack of diligence by giving plaintiffs an automatic method of circumventing statutes of limitations.' " Sparks, 255 P.3d at 243 (quotation omitted). The Supreme Court of Nevada has held that in making this assessment, courts should consider "whether the party unreasonably delayed amending the pleadings to reflect the true identity of a defendant once it became known; whether the plaintiff utilized judicial mechanisms such as discovery to inquire into a defendant's true identity; and whether a defendant concealed its identity or otherwise obstructed the plaintiff's investigation." Id.
Here, Plaintiff's seven-month delay is far less than those found to be unreasonable by the Supreme Court of Nevada and this court. See Sparks, 255 P.3d at 243-44 (holding the plaintiffs were not reasonably diligent where they did not learn of the does' identities until over a year and a half after litigation commenced and then waited another eight months to amend after the court granted their motion to amend); Bradley, 2020 WL 4904631, at *4 (writing that the plaintiff's fourteen month delay to begin identifying Doe defendants demonstrated a lack of reasonable diligence); Cruz, 2014 WL 5449710, at *5 (finding the plaintiff's three year delay evidenced a lack of reasonable diligence). And past decisions by this court have found plaintiffs were sufficiently diligent in discovering a fictious defendant's identity, despite delays exceeding seven-month. See Kreiser v. VS2R Engineering, Inc., No. 2:16-cv-01361, 2018 WL 6705531 (D. Nev. Dec. 20, 2018) (determining the plaintiff met the third Nurenberger factor despite the plaintiff filing the amended complaint a year and seven months after the original complaint); Bruin v. Osborn, No. 2:15-cv-00324, 2017 WL 11493270, at *6 (D. Nev. Apr. 21, 2017) (finding the plaintiffs' claim related back where the plaintiffs' moved to amend ten months after the filing of the original complaint). Furthermore, once Plaintiff ascertained Defendant's identity, she promptly moved to file her Amended Complaint. (See Resp. 3:12-13) (explaining that on February 7, 2023, Plaintiff was informed by Albertson's counsel that Defendant was the company who installed the electrical box); (Stip. Am. Compl. 1:16-21) (stipulating on March 3, 2023, to allow Plaintiff to amend her Complaint to add Defendant); see also Chase v. Atlas Copco Craelius AB, No. 2:10-cv-02249, 2012 WL 1068085, at *2 (D. Nev. Mar. 28, 2012) (determining that a "three to fourth month delay in moving to amend" once the plaintiff ascertained the fictious defendants identity was not unreasonable). While Plaintiff may not have moved as fast as Defendant would have liked, her delay "does not indicate long periods of time where [she] was inexplicably doing nothing." Kreiser, 2018 WL 6705531, at *4.
In sum, the Court finds that Plaintiff has satisfied the three-party Nurenberger test. Therefore, Plaintiff's Amended Complaint relates back to the date of the original Complaint, and the Court disagrees with Defendant's Motion that Plaintiff's claims are barred by the applicable two-year statute of limitation. Accordingly, Defendant's Motion to Dismiss is DENIED.
IV. CONCLUSION
IT IS HEREBY ORDERED that Defendant's Motion to Dismiss, (ECF No. 22), is DENIED.