Swenson v. Amtrak

Filing 58

ORDER signed by District Judge Kimberly J. Mueller on 8/4/2016 ORDERING 48 that the Motion to Dismiss filed by National Railroad Passenger Corp., is DENIED. (Reader, L)

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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
ORDER

v.
NATIONAL RAILROAD PASSENGER
CORP., et al.,

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Defendants.
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The National Railroad Passenger Corporation, commonly known as Amtrak,

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moves to dismiss Therese Swenson’s fifth amended complaint. The court held a hearing on the

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motion on July 29, 2016. Barbara Norman appeared for Ms. Swenson and Michael Murphy

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appeared for Amtrak. The motion is denied.

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I.

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BACKGROUND
As discussed in this court’s two previous orders, ECF Nos. 23 & 42, Therese

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Swenson alleges she was wrongly expelled from an Amtrak train in Kelso, Washington on her

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way home to Dunsmuir, California from Seattle. In her original complaint and first amended

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complaint, filed before she was represented by counsel, she alleged Amtrak conductors had

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refused her request to use more than one seat. She wanted to “stretch out across two seats if

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available.” First Am. Compl. at 11, ECF No. 6. According to this complaint, conductors said,
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“No, if you want to sit on two seats you have to pay for two.” Id. Amtrak called the police, Ms.

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Swenson apparently refused to move, and she was arrested, handcuffed, and charged with

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trespassing. See id. Ms. Swenson originally asserted claims for breach of contract and

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intentional infliction of emotional distress. Amtrak moved to dismiss, and Swenson hired an

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attorney. The motion was denied with respect to the contract claim and otherwise granted with

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leave to amend.

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Swenson amended and asserted claims for breach of contract, intentional infliction

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of emotional distress, and negligent infliction of emotional distress. In contrast with her previous

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complaints, she alleged Amtrak had forbidden her from moving between empty seats rather than

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from using two seats at once. See Third Am. Compl. ¶ 1–4, ECF No. 25.1 Swenson also alleged

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claims against the individual conductors.

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Amtrak moved to dismiss the emotional distress claims, but not the contract claim,

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and moved to strike various allegations. The court granted the motion to dismiss, granted the

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motion to strike in part, and dismissed the contract claim on its own motion. Swenson had not

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explained the factual inconsistency between her original and amended allegations, she had

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attempted to incorporate her contract claim by reference, and her allegations did not allow the

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court to infer that Amtrak had intentionally caused her emotional distress. She was allowed a

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final amendment.
In the current complaint, the Fifth Amended Complaint,2 ECF No. 46, Swenson

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asserts two claims: breach of contract and negligence. She again alleges Amtrak forbade her

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from moving between seats, not that it denied her request to occupy more than one seat.

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Amtrak now moves to dismiss the negligence claim, but not the contract claim.
ECF No. 48. It argues that Swenson still has not explained her inconsistent allegations and that

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The complaint was titled “Third Amended Complaint” even though Swenson never filed
a second amended complaint.
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Swenson filed a Fourth Amended Complaint and afterward requested leave to file a Fifth
Amended Complaint to correct typographical and similar small errors. Amtrak did not oppose the
request, which was granted in a short written order. ECF No. 45.
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her allegations are not analogous to others California courts have allowed to proceed against

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common carriers. Swenson opposes the motion, ECF No. 50, and Amtrak replied, ECF No. 52.

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II.

LEGAL STANDARD

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As summarized in this court’s previous order,

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A defendant may move to dismiss for failure to state a claim upon
which relief can be granted. The motion may be granted only if the
complaint lacks a cognizable legal theory or if its factual allegations
do not support a cognizable legal theory. The court assumes these
factual allegations are true and draws reasonable inferences from
them.

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A complaint need contain only a short and plain statement of the
claim showing that the pleader is entitled to relief, not detailed
factual allegations. But this rule demands more than unadorned
accusations; sufficient factual matter must make the claim at least
plausible. In the same vein, conclusory or formulaic recitations of
elements do not alone suffice. Evaluation under Rule 12(b)(6) is a
context specific task drawing on judicial experience and common
sense.

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Order Apr. 19, 2016, at 5, ECF No. 42 (citations and quotation marks omitted).

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III.

DISCUSSION

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The parties’ dispute over Swenson’s clearly inconsistent allegations is at most

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tangentially relevant to her negligence claim and is not dispositive. Whether or not Amtrak

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ejected her wrongfully, it faces liability in tort. On this point the court does not entertain

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Amtrak’s argument, raised for the first time at hearing, that its actions were permissible under

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sections 2185–2188 of the California Civil Code. These citations were absent from Amtrak’s

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briefing in all three of its motions to dismiss.3 Considering the argument now would either

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deprive Ms. Swenson of a chance to be heard or cause unnecessary delay in this already delayed

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case, or both. See, e.g., Day v. Sears Holdings Corp., 930 F. Supp. 2d 1146, 1168 n.84 (C.D. Cal.

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2013).

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Amtrak’s negligence liability does not directly depend on whether it ejected

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Swenson for a good reason: “a common carrier that ejects a passenger at a place other than the

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designated destination and in doing so subjects the passenger to reasonably foreseeable injury,

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At hearing, counsel offered a particularly dissatisfying explanation for the omission,
saying an associate had prepared the legal memorandum submitted with his client’s motion.
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violates a common carrier’s affirmative duty to prevent harm to its passengers.” Ingham v. Luxor

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Cab Co., 93 Cal. App. 4th 1045, 1051 (2001). The carrier’s liability in tort and contract are not

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mutually exclusive in this respect. See id. (citing Sloane v. S. Cal. Ry. Co., 111 Cal. 668, 677

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(1896)); see also Fed. R. Civ. P. 8(d)(2)–(3) (“A party may set out 2 or more statements of a

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claim or defense alternatively or hypothetically, either in a single count or defense or in separate

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ones. . . . A party may state as many separate claims or defenses as it has, regardless of

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consistency.”).

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Whether Swenson wanted to occupy one seat or two, Amtrak expelled her before
she reached her destination, and she alleges the expulsion caused her monetary losses,

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inconvenience, physical discomfort, emotional distress, and other related damages, which Amtrak

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could plausibly have foreseen. These allegations support her claim for negligence.

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Amtrak also argues Ms. Swenson’s situation is not comparable to those of the

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plaintiffs in Ingham and Sloane. In Sloane, the plaintiff had purchased a train ticket from North

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Pomona to San Diego via San Bernardino. 111 Cal. at 675–76. She was scheduled to switch

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trains in San Bernardino, but before she did, the conductor took her ticket. The conductor on the

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new train demanded her ticket, and she could not produce it. She had no money, so she was left

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in East Riverside. She began a three-mile walk to a nearby town but caught a ride “in a passing

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vehicle” for part of the way, then stayed overnight with her sister-in-law and borrowed money for

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a new ticket. She sued the railroad, and the jury awarded her money damages for her troubles and

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the indignity she suffered at the hands of the conductor. See id. at 676–78. The railroad’s motion

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for a new trial was denied, and the California Supreme Court agreed the passenger could pursue a

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tort claim.

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In Ingham, a fifty-seven-year-old plaintiff who suffered from kidney failure was

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ejected from a taxi cab while on her way to the dentist in San Francisco. 93 Cal. App. 4th

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at 1048–49. The cab driver left her at the bottom of the hill below the dentist’s office. She

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pleaded with him not to deposit her there, explaining she could not walk up the hill and showing

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him her cane, but he refused. She fell and broke her hip while attempting to climb the hill, and

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then sued the cab company. The trial court granted the company’s motion for summary judgment
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because it found the company owed the plaintiff no duty, whether in contract or tort. The Court

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of Appeal disagreed, reversed, and remanded. After reciting the rule of Sloane and similar

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previous decisions, it explained further that a common carrier may face liability in negligence

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even if it ejects a person in a safe place. Id. at 1052. The court wrote, “Damages may be had for

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harm 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. (citations omitted).

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Sloane and Ingham are comparable to this case in all relevant respects: Amtrak

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allegedly ejected Ms. Swenson from the train before she reached her agreed destination, it knew

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she was elderly and experienced discomfort in her legs, and Swenson alleges she suffered

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physical pain, inconvenience, humiliation, and emotional distress as a result.

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That said, Amtrak cannot be liable for damages it did not cause. Proximate or

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legal cause is an element of any tort claim. See, e.g., Ingham, 93 Cal. App. 3rd at 1054–58.

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Amtrak may therefore prevail if Swenson’s damages all are attributable to her own actions or the

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Kelso police. But this is a factual question for another day. “Factual questions regarding

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proximate cause generally must be decided at the summary judgment stage or at trial, not on a

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motion to dismiss.” Cellco P’ship v. Hope, No. 11-0432, 2011 WL 3159172, at *2 (D. Ariz. July

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26, 2011) (citing Newcal Indus., Inc. v. Ikon Office Sols., 513 F.3d 1038, 1055 (9th Cir. 2008)).

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IV.

CONCLUSION

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The motion to dismiss is denied. This order resolves ECF No. 48.

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IT IS SO ORDERED.

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DATED: August 4, 2016.

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UNITED STATES DISTRICT JUDGE
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