Laila Benamar et al v. Societe Air France

Filing 34

MINUTES (IN CHAMBERS) DEFENDANT SOCIETE AIR FRANCES MOTION TO DISMISS COUNTS IN PLAINTIFFS FIRST AMENDED COMPLAINT (Dkt. No. 28, filed June 25, 2015) 28 by Judge Christina A. Snyder: In accordance with the foregoing, and for the reasons stated i n the Courts May 7, 2015 order, the Court DISMISSES WITH PREJUDICE AND WITHOUT LEAVE TO AMEND plaintiffs state law claims for Strict Liability (Count 1) and Negligence (Count 3), to the extent those claims are asserted against SAF. No later than August 31, 2015, plaintiff is to file a Second Amended Complaint that may not reallege thesedismissed claims against SAF. (pj)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:15-CV-02444-CAS(JPRx)

Title

LAILA BENAMAR v. AIR FRANCE-KLM, ET AL.

Present: The Honorable

Date

‘O’

July 31, 2015

CHRISTINA A. SNYDER

Catherine Jeang
Deputy Clerk

Not Present
Court Reporter / Recorder

N/A
Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Not Present

Not Present

Proceedings:

(In Chambers) DEFENDANT SOCIÉTÉ AIR FRANCE’S
MOTION TO DISMISS COUNTS IN PLAINTIFF’S FIRST
AMENDED COMPLAINT (Dkt. No. 28, filed June 25, 2015)

The Court finds this motion appropriate for decision without oral argument. See
Fed. R. Civ. P. 78; C.D. Cal. Local Rule 7-15. Accordingly, the hearing date of August
10, 2015, is vacated, and the matter is hereby taken under submission.
I.

INTRODUCTION AND BACKGROUND

Plaintiff Laila Benamar filed this action on December 3, 2014, against defendants
Air France-KLM, Société Air France (“SAF”), Servair, Inc. (“Servair”), and Does 1
through 50. Dkt. No. 1. Plaintiff alleges that on or about December 4, 2012, she suffered
food poisoning on an SAF-operated flight from Paris to Los Angeles. FAC ¶ 2.
Plaintiff’s initial complaint alleged claims for breach of implied warranty and violations
of California’s Unfair Competition Law against Servair and Does 1 through 50, and
claims for (1) common law strict liability, (2) strict liability under the Montreal
Convention, and (3) common law negligence against all defendants. See generally
Compl.
On May 7, 2015, the Court granted without leave to amend SAF’s motion to
dismiss the state law claims for negligence and strict liability asserted against SAF,
finding that those claims are preempted by the Montreal Convention. Dkt. No. 20 at 3–6.
However, plaintiff was granted leave to amend her complaint to allege negligence under
the Montreal Convention. Id. at 6–8. No defendant besides SAF has appeared in this
action, and the Court’s May 7, 2015 order did not affect any claim asserted against
defendants other than SAF.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:15-CV-02444-CAS(JPRx)

Date

Title

‘O’

July 31, 2015

LAILA BENAMAR v. AIR FRANCE-KLM, ET AL.

On June 11, 2015, plaintiff filed her First Amended Complaint (“FAC”), which
realleges against SAF (and all other defendants) the previously dismissed state law
claims. See FAC ¶¶ 15–21, 35–46. Plaintiff explains that, to the extent the FAC “pleads
causes of action dismissed by the Court, this is done solely for purposes of ensuring that
those causes of action are not waived on any appeal of this case,” and that such claims
“are not intended . . . to be a part of the operative [FAC].” Id. at 4 n.1. On June 25,
2015, SAF filed a motion to dismiss the realleged state law claims with prejudice on the
grounds that (1) plaintiff was not required to reassert them in order to preserve them for
appeal, and (2) their inclusion in the operative complaint could confuse the issues. Dkt.
No. 28. Plaintiff filed an opposition on July 20, 2015. Dkt. No. 30. Defendant filed a
reply on July 23, 2015. Dkt. No. 33. Having considered the parties’ arguments, the
Court finds and concludes as follows.
II.

LEGAL STANDARD

A motion pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal
sufficiency of the claims asserted in a complaint. Under this Rule, a district court
properly dismisses a claim if “there is a ‘lack of a cognizable legal theory or the absence
of sufficient facts alleged under a cognizable legal theory.’ ” Conservation Force v.
Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011) (quoting Balisteri v. Pacifica Police Dep’t,
901 F.2d 696, 699 (9th Cir. 1988)). “While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to
provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “[F]actual allegations must
be enough to raise a right to relief above the speculative level.” Id.
In considering a motion pursuant to Rule 12(b)(6), a court must accept as true all
material allegations in the complaint, as well as all reasonable inferences to be drawn
from them. Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). The complaint must be
read in the light most favorable to the nonmoving party. Sprewell v. Golden State
Warriors, 266 F.3d 979, 988 (9th Cir. 2001). However, “a court considering a motion to
dismiss can choose to begin by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth. While legal conclusions can
provide the framework of a complaint, they must be supported by factual allegations.”
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009); see Moss v. United States Secret Service,
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:15-CV-02444-CAS(JPRx)

Date

Title

‘O’

July 31, 2015

LAILA BENAMAR v. AIR FRANCE-KLM, ET AL.

572 F.3d 962, 969 (9th Cir. 2009) (“[F]or a complaint to survive a motion to dismiss, the
non-conclusory ‘factual content,’ and reasonable inferences from that content, must be
plausibly suggestive of a claim entitling the plaintiff to relief.”). Ultimately,
“[d]etermining whether a complaint states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to draw on its judicial experience
and common sense.” Iqbal, 556 U.S. at 679.
Unless a court converts a Rule 12(b)(6) motion into a motion for summary
judgment, a court cannot consider material outside of the complaint (e.g., facts presented
in briefs, affidavits, or discovery materials). In re American Cont’l Corp./Lincoln Sav. &
Loan Sec. Litig., 102 F.3d 1524, 1537 (9th Cir. 1996), rev’d on other grounds sub nom
Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998). A court
may, however, consider exhibits submitted with or alleged in the complaint and matters
that may be judicially noticed pursuant to Federal Rule of Evidence 201. In re Silicon
Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir. 1999); see Lee v. City of Los
Angeles, 250 F.3d 668, 689 (9th Cir. 2001).
As a general rule, leave to amend a complaint which has been dismissed should be
freely granted. Fed. R. Civ. P. 15(a). However, leave to amend may be denied when “the
court determines that the allegation of other facts consistent with the challenged pleading
could not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv-Well Furniture
Co., 806 F.2d 1393, 1401 (9th Cir. 1986).
III.

DISCUSSION

As noted, plaintiff states that she has realleged claims previously dismissed without
leave to amend in order to preserve them for appeal. For some time, the rule in the Ninth
Circuit was that “a plaintiff waives all claims alleged in a dismissed complaint which are
not realleged in an amended complaint.” Forsyth v. Humana, Inc., 114 F.3d 1467, 1474
(9th Cir. 1997). In 2012, however, the Ninth Circuit jettisoned that rule, holding: “For
claims dismissed with prejudice and without leave to amend, we will not require that they
be repled in a subsequent amended complaint to preserve them for appeal . . . [but] for
any claims voluntarily dismissed, we will consider those claims to be waived if not
repled.” Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc)
(expressly overruling Forsyth in part). The en banc court reasoned that the prior Forsyth
rule was (1) unfair to plaintiffs, who often faced a choice “between failing to preserve
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:15-CV-02444-CAS(JPRx)

Date

Title

‘O’

July 31, 2015

LAILA BENAMAR v. AIR FRANCE-KLM, ET AL.

issues for appeal and risking sanctions by realleging dismissed claims”; (2) detrimental to
district courts forced to “wast[e] resources in parsing old claims and reiterating . . . prior
rulings”; and (3) not justified by sufficient practical considerations. Id. at 927–28.
Accordingly, in this case, plaintiff did not have to reallege the previously dismissed
claims to preserve them for appeal.
As other courts have noted, the Lacey court—in deciding that a plaintiff need not
replead claims dismissed with prejudice—did not hold that “an amended complaint
should not include claims that have been dismissed with prejudice.” Taylor ex rel.
Thompson v. Zurich Am. Ins. Co., No. CV 11–08110–PCT–JAT, 2013 WL 1340014, at
*8 (D. Ariz. April 1, 2013) (emphasis in original); see also In re Superior Nat’l Ins. Grp.,
No. 1:00-bk-14099-GM, 2014 WL 1873300, at *4 (Bankr. C.D. Cal. May 8, 2014)
(“While Lacey . . . holds that claims dismissed with prejudice need not be repled to be
preserved for appeal, it does not prohibit repleading such claims.”). Accordingly, at least
one district court in this circuit has granted leave to file an amended complaint realleging
claims dismissed with prejudice, despite the defendant’s Lacey-based objection. See
Taylor ex rel. Thompson, 2013 WL 1340014, at *9.
A greater number of district courts, however, have relied on Lacey in finding it
more efficient to dismiss or strike realleged claims already dismissed with prejudice. In
striking a complaint containing previously dismissed claims, one court cited Lacey’s
concern with district courts wasting resources “in parsing old claims and reiterating . . .
prior rulings.” Beavers-Gabriel v. Medtronic Inc., No. 13–00686 JMS–RLP, 2014 WL
4723802, at *2 (D. Haw. Sept. 22, 2014) (citing Lacey, 693 F.3d at 928). Other courts
have reasoned similarly. See Bess v. Ocwen Loan Serv., LLC, No. C 15-5020 BHS,
2015 WL 3465756, at *3 (W.D. Wash. June 1, 2015) (dismissing with prejudice claims
realleged solely in order to preserve right to appeal); Baker v. Gottlieb, No. 13–00236
LEK–BMK, 2014 WL 5460619, at *2 (D. Haw. Oct. 24, 2014) (same); Bronson v.
Johnson & Johnson, Inc., No. C 12–04184 CRB, 2013 WL 5731817, at *3 (N.D. Cal.
Oct. 22, 2013) (same); Giuliano v. SanDisk Corp., No. C 10-02787 SBA, 2013 WL
3942943, at *3–4 (N.D. Cal. July 29, 2013) (similar).
Following the majority of cases addressing this issue, the Court concludes that the
realleged claims should be dismissed. As SAF points out, the inclusion of claims already
dismissed with prejudice in the non-operative complaint has the potential to confuse the
scope of discovery and any dispositive motions. And aside from preserving the claims
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:15-CV-02444-CAS(JPRx)

Date

Title

‘O’

July 31, 2015

LAILA BENAMAR v. AIR FRANCE-KLM, ET AL.

for appeal, which is unnecessary in light of Lacey, plaintiff has identified no persuasive
reason for allowing her to reassert the dismissed claims. See Giuliano, 2013 WL
3942943, at *3–4 (“While it is not improper under Lacey for Plaintiff to reallege his
conspiracy claim in the SAC, the Court sees no benefit in allowing Plaintiff to do so in
this case.”).
IV.

CONCLUSION

In accordance with the foregoing, and for the reasons stated in the Court’s May 7,
2015 order, the Court DISMISSES WITH PREJUDICE AND WITHOUT LEAVE
TO AMEND plaintiff’s state law claims for Strict Liability (Count 1) and Negligence
(Count 3), to the extent those claims are asserted against SAF. No later than August 31,
2015, plaintiff is to file a Second Amended Complaint that may not reallege these
dismissed claims against SAF.
IT IS SO ORDERED.
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Initials of Preparer

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CMJ

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