Swenson v. Amtrak

Filing 42

ORDER signed by District Judge Kimberly J. Mueller on 4/19/2016 ORDERING that the 27 motion to strike is GRANTED IN PART. The remaining Doe defendants are DISMISSED and stricken from the caption. The claims for breach of contract and negligence a re DISMISSED with leave to amend. The claim for intentional infliction of emotional distress is DISMISSED without leave to amend. A fourth amended complaint shall be filed within twenty-one days, after which the court anticipates allowing no further amendments. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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THERESE SWENSON,

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Plaintiff,

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No. 2:14-cv-02629-KJM-CMK

v.

ORDER

NATIONAL RAILROAD PASSENGER
CORPORATION, doing business as
AMTRAK, et al.,

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Defendants.

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Theresa Swenson is suing the National Railroad Passenger Corporation,

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commonly known as Amtrak, for expelling her from a train in Kelso, Washington. Amtrak

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moves to dismiss two of her claims and to strike other portions of her complaint. The matter was

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submitted for decision without oral argument, and for the following reasons, the motion is granted

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in part.

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I.

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ALLEGATIONS
A.

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The Third Amended Complaint1
In her current complaint, Ms. Swenson alleges as follows: In November 2012, she

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purchased a round-trip ticket from Dunsmuir, California, to Seattle, Washington. Third Am.

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Compl. ¶ 1, ECF No. 25. She was assigned a seat. See id. On the way to Seattle, a man sat next

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to her, and Ms. Swenson asked a conductor if she could change her seat. Id. ¶ 13. The conductor

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said she could not. Id. She suspected her request had been wrongfully denied, so after she

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arrived in Seattle, she called Amtrak’s customer service office to ask. Id. An agent told her she

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could always change her seat when the car is not full. Id.

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On the return trip from Seattle, no more than a quarter of the seats was ever

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occupied. Id. ¶ 1. Swenson did not leave her seat and did not request a different seat. Id. After

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the Olympia, Washington stop, the conductor seated a newly arrived passenger directly next to a

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man a few rows in front of Ms. Swenson. Id. ¶ 2. The man left his seat and moved to another

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vacant seat nearby. Id. The conductor did not mind, and the man was not asked to pay for

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another seat or return to his original seat. Id.

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Soon another new passenger arrived, and the conductor directed her to a seat next

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to Ms. Swenson. Id. ¶ 3. Ms. Swenson took her belongings from the seat where the newly

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arrived passenger was to sit, and requested the conductor allow her to move to a nearby seat, just

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as the man in front of her had done. Id. The conductor told her she could not move unless she

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bought a second ticket. Id. The newly arrived passenger intervened and told the conductor she

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did not want to sit at all but to spend the trip in the bar car and left. Id.

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The problem seemed to have resolved itself, but the conductor persisted in arguing

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about the seat. Id. ¶ 4. She was angry that Ms. Swenson had challenged her authority. Id. In a

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The court uses Swenson’s designation for the operative complaint, the “Third Amended
Complaint,” although her complaint has been amended only twice. See Compl., ECF No. 1, First
Am. Compl., ECF No. 6; Third Am. Compl., ECF No. 25. It may be that counsel has seen a
pleading that was never filed. See Third Am. Compl. at 1 (referring to the second amended
complaint); Opp’n at 6, ECF No. 28 (same).
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few minutes, a second conductor, Don Grady, arrived.2 Id. ¶ 5. He told Ms. Swenson they had

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called the police in Kelso and officers would remove her from the train at the next stop. Id. The

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conductors left, and Ms. Swenson stayed in her seat. Id. She called the Amtrak customer service

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line and asked to speak to someone about her predicament. Id. ¶ 6. The agent on the phone told

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her she was free to move to another seat. Id. During the call, one of the conductors returned, and

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the agent agreed to speak to the conductor. Id. They spoke, then the conductor gave Swenson her

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phone again, and the call continued. Id. Ms. Swenson asked the agent on the phone what she

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should do, and the agent said to stay in her seat. Id. ¶ 7. Ms. Swenson also looked at Amtrak’s

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website, which confirmed “a passenger may select any other vacant seat that is available in the

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assigned car” if the car is not full. Id. ¶ 8. But the conductors held to their position. See id. ¶ 9.

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Police were waiting at the Kelso stop when the train arrived. Id. ¶ 11. They came

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to Ms. Swenson, who was again on the phone with an Amtrak customer service agent. Id. The

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agent asked to speak to the police, but the officers would not agree to speak to the agent. Id. The

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agent again told Ms. Swenson to stay in her seat. Id. She did, and the officers handcuffed her,

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took her off the train, and at the conductor’s request took her into custody for trespass. Id. The

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Amtrak conductors did not interfere or ask the police not to arrest her, cuff her, or take her into

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custody. Id. ¶ 12. Neither did Amtrak contact the District Attorney’s office to ask that no formal

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charges be pressed. Id.

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Ms. Swenson alleges that as a result of her arrest, she suffered great distress, which

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lingered for nearly eighteen months. Id. at 8. She asserts claims for breach of contract and

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intentional and negligent infliction of emotional distress against Amtrak, two individuals (Don

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Grady and Bridget Carrington) and ninety-eight Doe defendants (her previous complaints alleged

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claims against one hundred Doe defendants). She seeks compensatory, consequential, and

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punitive damages, attorneys’ fees and costs, and whatever other relief the court may award. Id.

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at 14.

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Swenson does not specify the name of the first conductor, although Bridget Carrington’s
name appears in the caption.
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B.

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Procedural History
Ms. Swenson filed her complaint in this court in November 2014, ECF No. 1, and

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amended it in February 2015, ECF No. 6. At the time she appeared without counsel. Although

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she has asserted essentially the same claims in each of her complaints—breach of contract and

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infliction of emotional distress—her previous complaints differ from her current complaint in

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three ways worth noting. First, she previously alleged that when she called Amtrak customer

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service before her return trip from Seattle, she was worried about “being confined to a single

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seat” for fifteen hours rather than moving from one seat to another. Compare First Am. Compl.

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at 11,3 with Third Am. Compl. ¶ 13. Second, she alleged that on the way back from Seattle, she

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asked a conductor whether “she could move to the empty seats” behind her, not whether she

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could move to another single seat. Compare First Am. Compl. at 11, with Third Am. Compl. ¶ 3.

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And third, she alleged significantly more about what happened after she was removed from the

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train in Kelso, as the court summarized in its previous order:

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She was arrested, placed in handcuffs, and escorted to the
courthouse, where she was charged with trespassing, [First Am.
Compl.] at 4, 8, then placed in jail in Kelso, id. at 9. Her travel bag
was impounded. Id. In it were her house keys, car keys,
prescription pain medication, clothes, makeup, and cell phone. Id.
This left her with open-toed shoes, no sweater, and a light overcoat,
and she had no choice but to walk two miles in the rain to find food
and catch a bus home. Id. She has returned to Kelso four times to
resolve the arrest and related charges. Id. at 8.

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Order Oct. 23, 2015, at 3, ECF No. 23. Her current complaint includes none of these details.

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Amtrak moved to dismiss the First Amended Complaint in March 2015. ECF

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No. 7. Ms. Swenson was represented by counsel in opposition to that motion. The motion was

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denied with respect to her contract claims and granted with respect to her claim for emotional

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distress and her request for punitive damages. Order Oct. 23, 2015, ECF No. 23. She was

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allowed leave to amend. Id. Counsel prepared the Third Amended Complaint, which alleges

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claims for breach of contract, negligent infliction of emotional distress, and intentional infliction

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of emotional distress and devotes a separate section to her request for punitive damages. See

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Citations to these complaints are to the page numbers applied by the CM/ECF system.
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Third Am. Compl. at 12–14. Ms. Swenson also joined Don Grady and Bridget Carrington as

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defendants.

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Amtrak moved to dismiss the Third Amended Complaint on November 19, 2015.

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ECF No. 27. It also moved to strike several specific passages. See id. at 2–3. Swenson opposed

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the motion, ECF No. 28, and Amtrak replied, ECF No. 32.

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II.

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LEGAL STANDARDS
A.

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Motions to Dismiss under Rule 12(b)(6)
A defendant may move to dismiss for “failure to state a claim upon which relief

can be granted.” Fed. R. Civ. P. 12(b)(6). The motion may be granted only if the complaint lacks

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a “cognizable legal theory” or if its factual allegations do not support a cognizable legal theory.

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Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013). The court

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assumes these factual allegations are true and draws reasonable inferences from them. See

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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A complaint need contain only a “short and plain statement of the claim showing

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that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), not “detailed factual allegations,”

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Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). But this rule demands more than

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unadorned accusations; “sufficient factual matter” must make the claim at least plausible. Iqbal,

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556 U.S. at 678. In the same vein, conclusory or formulaic recitations of elements do not alone

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suffice. Id. (quoting Twombly, 550 U.S. at 555). Evaluation under Rule 12(b)(6) is a context

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specific task drawing on “judicial experience and common sense.” Id. at 679.

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B.

Motions to Strike under Rule 12(f)
A court may strike any portion of a pleading that is “redundant, immaterial,

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impertinent, or scandalous.” Fed. R. Civ. P. 12(f). This rule is meant to avoid unnecessary

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expenditures of time and money over “spurious issues.” Whittlestone, Inc. v. Handi-Craft Co.,

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618 F.3d 970, 973 (9th Cir. 2010) (citation and quotation marks omitted). A motion under Rule

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12(f) should not be granted “unless it is clear the matter to be stricken could have no possible

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bearing on the subject matter of the litigation.” Neveu v. City of Fresno, 392 F. Supp. 2d 1159,

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1170 (E.D. Cal. 2005) (citation and quotation marks omitted).
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III.

DISCUSSION

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On its own motion, the court first addresses the complaint’s contract claim, then
turns to the motions to strike and to dismiss.
A.

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Contract Claims
As summarized above, Ms. Swenson’s previous complaints alleged claims for

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breach of contract, and Amtrak’s motion to dismiss this claim was denied. See Order Oct. 23,

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2015, at 11. She was granted leave to file an amended complaint, and the court ordered that any

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amended complaint follow certain typeface and formatting conventions. See id. at 11–12. Now

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represented by an attorney, Ms. Swenson amended her complaint. Aside from a few paragraphs

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without numbers, the complaint fits the specifications the court directed. But in her current

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complaint, Ms. Swenson writes that she “incorporates by reference in full herein [her] Second

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Amended Complaint cause of action for Breach of Contract as plead therein, including all

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associated attachments previously filed therewith.” Third Am. Compl. at 2.

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For three reasons, the contract claim cannot be incorporated by reference. First, as

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a general rule, an amended complaint supersedes the original. Lacey v. Maricopa Cnty., 693 F.3d

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896, 927 (9th Cir. 2012) (en banc). For this reason, this District has adopted Local Rule 220,

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which requires that every pleading must be “complete in itself without reference to the prior or

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superseded pleading,” and “[n]o pleading shall be deemed amended or supplemented until this

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Rule has been complied with.” In other words, an amended complaint must stand on its own legs,

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and whatever claims and allegations are absent from that document are absent from the case.4

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Second, as the understandable result of her lack of legal training and

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representation, Ms. Swenson’s previous complaints were unorganized and difficult to read. The

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court imposed formatting and typeface requirements in an effort to promote clarity. Ms. Swenson

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cannot be faulted for her inexperience, but her attorney ignores the spirit of the court’s previous

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order by incorporating the previous complaints only by reference.

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Nothing said here conflicts with the rule that to preserve a claim for appeal, a plaintiff
may rely on a previous complaint for any claim dismissed with prejudice. See Lacey, 693 F.3d
at 928. This exception is not relevant here because the contract claim was not dismissed.
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Third, Ms. Swenson’s current complaint appears to allege contract claims against

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all of the defendants, including Grady, Carrington and the ninety-eight unidentified Doe

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defendants, but she does not describe what role any of these defendants had in the contract

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relationship or how they breached the contract. Without this information, the complaint does not

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state a claim against any defendant but Amtrak itself. See Cal. Civ. Code § 1550 (the defendant’s

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consent is essential to the formation of a contract); First Commercial Mortg. Co. v. Reece, 89 Cal.

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App. 4th 731, 745 (2001) (the defendant’s breach is an element of every contract claim).

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The claim for breach of contract is dismissed with leave to amend. The court

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reserves judgment on the possibility that contract claims could be asserted against the individual

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defendants, but reminds counsel of her obligations under Federal Rule of Civil Procedure 11(b).

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B.

Motion to Strike
Amtrak’s motion to strike targets two aspects of the Third Amended Complaint.

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First, it argues Ms. Swenson must not be allowed to allege claims against Grady, Carrington, and

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the Doe defendants. See Mot. at 6. Amtrak cites the first footnote of this court’s previous order,

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which warned Swenson that claims against Doe defendants would be dismissed if “it is clear that

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discovery would not uncover the[ir] identities or that the complaint would be dismissed on other

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grounds.” Order Oct. 23, 2015, at 1 n.1 (quoting Wakefield v. Thompson, 177 F.3d 1160, 1163

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(9th Cir. 1999)). In the same footnote the court warned Ms. Swenson that Federal Rule of Civil

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Procedure 4(m) applies to Doe defendants, who will be dismissed if not served within 120 days

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(now 90 days) of the date the complaint was filed. Id.

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The motion cannot be granted in this respect. The previous filings were prepared

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before Ms. Swenson secured representation, and Amtrak has identified no concrete prejudice it

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faces as a result of the possible joinder of new defendants. Although this case began in 2014,

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Amtrak has not yet answered the complaint. Good cause exists to allow the joinder of defendants

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Grady and Carrington to this lawsuit. On the other hand, good cause does not allow the

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remaining ninety-eight Doe defendants to continue in this case. Their role remains utterly

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unclear. The motion is granted in this respect, and the Doe defendants are accordingly dismissed.

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Second, in the alternative to its motion to dismiss Swenson’s claims for infliction

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of emotional distress, Amtrak moves to strike several specific paragraphs of the Third Amended

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Complaint, which it argues are redundant, immaterial, or scandalous. See Mot. Dismiss at 12–13.

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For example, it requests the following passages be stricken:

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The conductor’s refusal to allow the plaintiff to move seats and her
demand that plaintiff pay for a second seat demand [sic] was made
in bad faith, malicious and with discriminatory application given
the fact that the car was nearly empty, the plaintiff was well within
her right to relocate her seat, and that the conductor allowed another
passenger to change his seat under the same circumstances just a
few moments earlier.

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Third Am. Compl. at 3:9–14.

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Plaintiff had done no act to justify her ejection from the train or
have law enforcement called. All she had done was to request a
different seat from the conductor, which was refused by the
conductor, and to attempt to phone to reach someone with higher
authority at Amtrak to again get confirmation from Amtrak that
moving her seat was permitted if there were vacant seats available
on the car.

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Id. ¶ 8.

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Plaintiff had no obligation to purchase a second seat as demanded
by the conductor pursuant to her request to change seats, and such
demand by the conductor was unreasonable, arbitrary, capricious,
cruel, and without legal or factual justification warranting plaintiff’s
removal from the train.

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Id. ¶ 10.

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These allegations are not the sort of redundant, scandalous, or irrelevant statements

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that may be stricken under Rule 12(f), but rather describe Ms. Swenson’s theory of this case. Cf.,

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e.g., Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev’d on other grounds, 510

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U.S. 517 (1994) (“Superfluous historical allegations are a proper subject of a motion to strike.”);

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Harris v. Bear Valley Cmty. Serv. Dist., No. 12-01664, 2013 WL 4402823, at *4 (E.D. Cal. Aug.

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14, 2013) (striking a duplicate paragraph); Wynes v. Kaiser Permanente Hosps., No. 10-00702,

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2010 WL 3220137, at *9 (E.D. Cal. Aug. 13, 2010) (striking allegations of racial and ethnic

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discrimination because the complaint included no discrimination claim). This aspect of the

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motion is denied.

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C.

Motion to Dismiss

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A complaint states a claim for intentional infliction of emotional distress when it

Intentional Infliction of Emotional Distress

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alleges (1) the defendant’s conduct was outrageous; (2) the defendant either intended to cause

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emotional distress or acted with reckless disregard to the probability of causing emotional

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distress; (3) the plaintiff suffered severe emotional distress; and (4) the defendant’s conduct

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actually and proximately caused that emotional distress. Nally v. Grace Cmty. Church, 47 Cal. 3d

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278, 300 (1988). The defendant’s conduct is sufficiently “outrageous” when it is “so extreme as

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to exceed all bounds of that usually tolerated in a civilized community.” Davidson v. City of

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Westminster, 32 Cal. 3d 197, 209 (1982).
Here, the court is confronted by Ms. Swenson’s two conflicting theories of

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Amtrak’s liability. According to her previous complaints, she requested to use two seats due to

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pain in her legs, and Amtrak denied her request because she had paid for only one. See First Am.

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Compl. at 11. Now she alleges she asked to move to a new seat, not to use two. See Third Am.

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Compl. ¶¶ 3, 13. An amended complaint may only allege “facts consistent with the challenged

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pleading.” Reddy v. Litton Indus., Inc., 912 F.2d 291, 296–97 (9th Cir. 1990) (citation and

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quotation marks omitted). The court need not accept the truth of a plaintiff’s inconsistent factual

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allegations. Stearns v. Select Comfort Retail Corp., 763 F. Supp. 2d 1128, 1144–45 (N.D. Cal.

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2010); see also Sicor Ltd. v. Cetus Corp., 51 F.3d 848, 859 (9th Cir. 1995) (an allegation may

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serve as a judicial admission). A litigant may take inconsistent positions in its pleadings, PAE

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Gov’t Servs., Inc. v. MPRI, Inc., 514 F.3d 856, 860 (9th Cir. 2007), but must normally explain the

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inconsistency so the court may “accord the explanation due weight,” Sicor, 51 F.3d at 859;

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Stearns, 763 F. Supp. 2d at 1145.

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In light of her inconsistent pleadings and the absence of any explanation for this

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inconsistency, the court does not assume the truth of plaintiff’s later allegations. Her claim for

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intentional infliction of emotional distress must therefore be dismissed for the reasons in the

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court’s previous order:

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The conductors’ desire to orderly remove Ms. Swenson from a seat
she did not pay for, one allocated to another passenger, explains
their conduct at this point better than the theory of her complaint.
By her own allegation she refused to occupy only one seat and
refused to pay for two. After she ignored the conductors’
instructions, they called the police to escort her from the train, not
to arrest and cuff her. Even if the complaint could be read to infer
Amtrak’s intent or reckless disregard, its allegations do not show
Amtrak’s actions exceeded all bounds of conduct usually tolerated
in civil society.

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Order Oct. 23, 2015, at 10.
In addition, the court notes that contrary to Ms. Swenson’s argument in her
opposition brief, she cannot bootstrap a factual dispute from Amtrak’s belief that its employees

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acted reasonably. See Opp’n at 4. If this were possible, a claim for intentional infliction of

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emotional distress could rest on the most trivial faux pas. The standard described by the

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California Supreme Court is not whether the plaintiff found the defendant’s conduct outrageous,

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but whether the defendant’s conduct falls outside a range tolerated by society at large. Davidson,

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32 Cal. 3d at 209.

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In light of the court’s previous order and Ms. Swenson’s attempt to plead an

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alternative and inconsistent theory of Amtrak’s liability without explanation, the court finds an

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amendment would prove wasteful and futile. The motion to dismiss this claim is granted without

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leave to amend.

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2.

Negligent Infliction of Emotional Distress

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In California, “there is no independent tort of negligent infliction of emotional

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distress.” Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 984 (1993). “The tort is

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negligence, a cause of action in which a duty to the plaintiff is an essential element.” Id. Unless

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a defendant assumed a duty to the plaintiff and the object of that duty was the plaintiff’s

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emotional condition, a plaintiff may recover “only if the emotional distress arises out of the

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defendant’s breach of some other legal duty and the emotional distress is proximately caused by

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that breach of duty.” Id. at 985. “Even then, with rare exceptions, a breach of the duty must

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threaten physical injury, not simply damage to property or financial interests.” Id.

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Swenson’s negligence claim arises from her contractual relationship with Amtrak

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as a common carrier. See Third Am. Compl. at 9:7–11 (“As a common carrier, Amtrak owed a

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duty of good faith and fair dealing to plaintiff under contract. The breach of this duty owed to the

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plaintiff resulted when her purchased ticket was voided in Kelso, Washington . . . .”); id.

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at 10:3–4 (alleging the contract created “a relationship with unique duties of care and conduct”).

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A common carrier may be liable in tort if it does not fulfill a contractual duty to deliver its

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passengers to an agreed-upon destination. Ingham v. Luxor Cab Co., 93 Cal. App. 4th 1045,

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1051 (2001); see also Erlich, 21 Cal. 4th at 551 n.1 (noting the distinction between contract and

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tort claims in this context). The “seminal case” is Sloane v. Southern California Railway Co.,

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111 Cal. 668 (1896), where the California Supreme Court confirmed that a passenger wrongfully

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ejected from a train could seek either tort or contract remedies. See Ingham, 93 Cal. App. 4th at

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1051 (citing Sloane, 111 Cal. at 676–77). In this situation, “[d]amages may be had for harm

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suffered in leaving the discharge point, whether it be physical injury, illness due to weather

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conditions during the walk, or inconvenience caused by the ejectment.” Id. at 1052 (citations

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omitted). Whether and to what extent damages are available for emotional distress is a more

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complicated question, see Lawson v. Mgmt. Activities, Inc., 69 Cal. App. 4th 652, 660–68 (1999),

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one the court does not address here given Amtrak’s facile assertion that this case involves none of

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the circumstances in which tort damages are recoverable, see Mot. at 11, and Swenson’s silence

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in response.

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It is unclear from the complaint whether Ms. Swenson alleges she suffered the sort

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of harm courts have permitted in passenger-expulsion cases. See Third Am. Compl. at 12. In an

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amended complaint, she could include allegations from her previous complaints, which included

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more detail about her damages, see First Am. Compl. at 4, 8, 9, but as discussed above, a

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complaint’s previous iterations may not be incorporated by reference, E.D. Cal. L.R. 220. This

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claim is therefore dismissed with leave to amend.

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3.

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Because each of Swenson’s claims has been dismissed, the court need not address

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Punitive Damages

whether her request for punitive damages must be stricken or dismissed. A request for punitive
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damages may be included in an amended complaint, if that may be done within the confines of

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Rule 11.

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IV.

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CONCLUSION
The motion to strike is GRANTED IN PART. The remaining Doe defendants are

DISMISSED and stricken from the caption.
The claims for breach of contract and negligence are DISMISSED with leave to

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amend. The claim for intentional infliction of emotional distress is DISMISSED without leave to

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amend. A fourth amended complaint shall be filed within twenty-one days, after which the court

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anticipates allowing no further amendments.

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This order resolves ECF No. 27.

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IT IS SO ORDERED.

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DATED: April 19, 2016.

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UNITED STATES DISTRICT JUDGE

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