Miller v. National Railroad Passenger Corp., et al.
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 6/18/2018 RECOMMENDING that 12 Motion to Dismiss filed by Union Pacific Railroad, National Railroad Passenger Corp be granted; Referred to Judge Troy L. Nunley. Objections due within 14 days. (Fabillaran, J)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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CRAIG GARRETT MILLER,
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Plaintiff,
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No. 2:17-CV-1273-TLN-CMK
vs.
FINDINGS AND RECOMMENDATIONS
NATIONAL RAILROAD
PASSENGER CORP., et al.,
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Defendants.
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Plaintiff, who is proceeding pro se, brings this civil action. Pending before the
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court is defendants’ unopposed motion to dismiss (Doc. 12).
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I. PLAINTIFF’S ALLEGATIONS
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Plaintiff seeks $8,000,000.00 in damages for injuries sustained from “being struck
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by a southbound Amtrak train on June 20th, 2015, approx. 2:30 a.m. in front of Weaver Lumber,
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Redding, California 96001.” As to defendant National Railroad Passenger Corp., which operates
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Amtrak, plaintiff alleges:
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Amtrak frequently exceeds the allowed limits of speed. The train LED
headlights were blocked from clear sight due to overgrown vegitation [sic]
on the east side of the tracks and a [sic] advertising billboard on the west
side of the tracks.
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As to defendant Union Pacific Railroad, plaintiff alleges:
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Union Pacific Railroad did not maintain trees and vegitation [sic]
overgrowth. Lack of proper signage, no fence in place to prevent
pedestrians from crossing over the rail tracks.
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II. STANDARD FOR MOTION TO DISMISS
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In considering a motion to dismiss, the court must accept all allegations of
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material fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The
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court must also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer
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v. Rhodes, 416 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S.
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738, 740 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All
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ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen,
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395 U.S. 411, 421 (1969). However, legally conclusory statements, not supported by actual
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factual allegations, need not be accepted. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50
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(2009). In addition, pro se pleadings are held to a less stringent standard than those drafted by
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lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972).
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Rule 8(a)(2) requires only “a short and plain statement of the claim showing that
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the pleader is entitled to relief” in order to “give the defendant fair notice of what the . . . claim is
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and the grounds upon which it rests.” Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007)
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(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order to survive dismissal for
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failure to state a claim under Rule 12(b)(6), a complaint must contain more than “a formulaic
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recitation of the elements of a cause of action;” it must contain factual allegations sufficient “to
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raise a right to relief above the speculative level.” Id. at 555-56. The complaint must contain
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“enough facts to state a claim to relief that is plausible on its face.” Id. at 570. “A claim has
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facial plausibility when the plaintiff pleads factual content that allows the court to draw the
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reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. at
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1949. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more
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than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S.
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at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability,
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it ‘stops short of the line between possibility and plausibility for entitlement to relief.” Id.
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(quoting Twombly, 550 U.S. at 557).
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In deciding a Rule 12(b)(6) motion, the court generally may not consider materials
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outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998);
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Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The court may, however, consider: (1)
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documents whose contents are alleged in or attached to the complaint and whose authenticity no
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party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question,
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and upon which the complaint necessarily relies, but which are not attached to the complaint, see
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Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials
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of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir.
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1994).
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Finally, leave to amend must be granted “[u]nless it is absolutely clear that no
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amendment can cure the defects.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per
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curiam); see also Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc).
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III. DISCUSSION
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In their unopposed motion to dismiss, defendants argue that the court lacks
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jurisdiction over the action because it was filed beyond California’s two-year statute of
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limitations for negligence claims. The court agrees.
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California’s statute of limitations is applicable to this federal personal injury
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action. See e.g. Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004) (“[f]or actions under 42
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U.S.C. § 1983, courts apply the forum state’s statute of limitations for personal injury actions.”).
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Pursuant to California Code of Civil Procedure § 335.1, actions for personal injury allegedly
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caused by negligence must be brought within two years. The two-year limitations period begins
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to run on the date the plaintiff knows or has reason to know of the injury which is the basis of the
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action. See TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999); Kimes v. Stone, 84 F.3d
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1121, 1128 (9th Cir. 1996). An action is time-barred even if late by one day. See United States
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v. Locke, 471 U.S. 84, 101 (1985).
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In this case, plaintiff alleges that the injury that is the basis of his action occurred
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on June 20, 2015. Plaintiff, who is proceeding pro se but is not a prisoner, filed his complaint on
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June 21, 2017 – one day after expiration of the two-year limitations period. Because the action is
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time-barred, it should be dismissed.
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IV. CONCLUSION
Based on the foregoing, the undersigned recommends that defendants’ unopposed
motion to dismiss (Doc. 12) be granted.
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These findings and recommendations are submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days
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after being served with these findings and recommendations, any party may file written
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objections with the court. Responses to objections shall be filed within 14 days after service of
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objections. Failure to file objections within the specified time may waive the right to appeal.
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See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: June 18, 2018
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
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