Shankar v. United States Department of Homeland Security et al

Filing 56

ORDER ON MOTIONS TO DISMISS 28 35 . Plaintiff has until 3/5/2014 to file a second amended complaint and file a statement regarding plaintiffs consent to the appointment of a guardian ad litem. Signed by Judge Nathanael Cousins. (lmh, COURT STAFF) (Filed on 2/6/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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RYAN SHANKAR, a Conserved Adult by

11 and through his father and Conservator,
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Case No. 13-cv-01490 NC

VISHNU SHANKAR,
Plaintiff,
v.

ORDER ON MOTIONS
TO DISMISS
Re: Dkt. Nos. 28, 35

14 UNITED STATES DEPARTMENT OF
HOMELAND SECURITY;

15 TRANSPORTATION SECURITY
ADMINISTRATION and UNITED

16 AIRLINES CORPORATION, a Delaware
Corporation doing business in the State

17 California; and DOES 1-10, inclusive,
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Defendants.
Ryan Shankar, who has autism, filed this lawsuit based on an incident in October

20 2009 at the airport in Honolulu where he claims he was treated rudely and denied access to
21 a flight. Plaintiff alleges violations of the ADA and the Rehabilitation Act, as well as state
22 law tort claims against defendants United Airlines and two federal agencies responsible for
23 the security screening at the airport. The federal defendants move to dismiss the complaint
24 for lack of standing and failure to state a claim. For the reasons set forth below, the Court
25 dismisses the ADA claim against the federal defendants with prejudice, and dismisses the
26 remaining claims with leave to amend. The United States, which is not named as a
27 defendant but contends it is the only proper federal defendant on the tort claims, filed a
28 motion to dismiss those claims as time-barred, which the Court denies.
Case No. 13-cv-01490 NC
ORDER ON MOTIONS TO DISMISS

I. BACKGROUND

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2 A.

The Allegations of the Complaint

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At the time he filed his original complaint, plaintiff was eighteen years old. Dkt. No.

4 1 ¶ 6. Plaintiff alleges that he is afflicted with autism, “which impedes his ability to
5 understand, communicate and interpret his daily living experiences, especially those which
6 are unusual and not within the realm of his typical daily routine.” Dkt. No. 19 ¶¶ 6, 11. On
7 October 4, 2009, he was scheduled to board a return flight on United Airlines from
8 Honolulu to San Francisco with his family following a trip to Hawaii. Id. ¶ 12. Plaintiff
9 alleges that when he and his family arrived at the airport in Honolulu that day, his father
10 learned that the family’s reservations to fly back to San Francisco had been erroneously
11 cancelled. Id. ¶ 16. While plaintiff’s father was speaking with the United Airlines ticket
12 agent about the error, plaintiff uttered some odd noises, and as time went on, became
13 increasingly frustrated and began to flail and engage in self-stimulatory behaviors
14 associated with autism. Id. When his father informed the ticket agent that plaintiff has
15 autism, the agent allegedly responded by saying “what’s that?” Id. The complaint further
16 alleges that the ticket agent “was rude, dismissive and poorly trained regarding service and
17 decorum for passengers with disabilities,” and that when plaintiff was making utterances,
18 “she often rolled her eyes and showed her obvious ignorance about serving persons with
19 disabilities.” Id. ¶ 17.
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After approximately forty-five minutes, the erroneous ticket cancellations were

21 rectified, the ticket agent provided plaintiff’s family with boarding passes, and the family
22 proceeded to the security check points. Id. ¶¶ 18-19. Plaintiff made his way through the
23 security check prior to any other family member as he was anxious to board the aircraft,
24 although he “was calm and not manifesting any bizarre noises or behaviors.” Id. ¶ 19.
25 Plaintiff alleges that at the conclusion of the security screening by the Transportation
26 Security Administration (“TSA”), he gave a “high five sign” to one of the TSA agents, and
27 that while doing so, he slapped the TSA agent’s hand and uttered the words “good job.” Id.
28 ¶ 20. According to the complaint, plaintiff, like many others afflicted with autism, has been
Case No. 13-cv-01490 NC
ORDER ON MOTIONS TO DISMISS

2

1 taught to administer a “high five sign” and slap the hand of the recipient when successfully
2 completing a task, as well as to utter the words, “good job.” Id. n.3. Plaintiff alleges that
3 when he slapped the hand of the TSA agent, the agent was smiling and “reciprocated in
4 kind.” Id. ¶ 20, n.3.
Plaintiff further alleges that as his father was going through the security checkpoint,

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6 the same TSA agent yelled out “this kid hit me,” referring to plaintiff. Id. ¶ 21. Plaintiff’s
7 father then tried to explain that plaintiff did not hit the agent, is afflicted with autism, and
8 meant no harm. Id. After that, plaintiff’s father joined plaintiff “at the end of the security
9 line.” Id. According to the complaint, plaintiff “was calm and happy” as he walked with
10 his father through the concourse and onto the plane, after stopping at Burger King to
11 purchase french fries. Id. ¶ 22.
The complaint further alleges that, after plaintiff and his family boarded the plane and

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13 had taken their seats, two members of United Airlines’ ground crew “came onto the aircraft
14 while rudely and well above a whisper, insisted that [plaintiff] and his family deplane on an
15 immediate basis,” “loudly stat[ing] to [plaintiff]’s father that the pilot specifically wanted he
16 and [plaintiff] ‘to get off the aircraft.’” Id. ¶ 24. The United Airlines agents “refused to
17 answer any questions about the reasons and/or rationale that required [plaintiff] and his
18 father to deplane.” Id. Plaintiff alleges that as he and his father were escorted into the
19 airport after deplaning, his father noticed United Airlines agents give a “thumbs up” sign to
20 the TSA agent who reciprocated Plaintiff’s “high five” sign earlier at the security
21 checkpoint. Id. ¶ 25.
Plaintiff further alleges that “[w]ithout intervention, police contact or explanation of

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23 any kind from [United Airlines] personnel or the TSA,” plaintiff and his family waited for
24 several hours in the airport before a customer service agent responded to plaintiff’s father’s
25 “multiple requests for an alternate flight.” Id. ¶ 26. The customer service agent allegedly
26 said she was not authorized to discuss the incident but was authorized to rebook plaintiff
27 and his family on a non-direct flight to San Francisco. Id.
28 //
Case No. 13-cv-01490 NC
ORDER ON MOTIONS TO DISMISS

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1 B.

Procedural History

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Plaintiff filed his original complaint on April 3, 2013. Dkt. No. 1. At that time,

3 plaintiff brought the original complaint in his own name, without reference to
4 conservatorship. Id. The complaint named as defendants the United States Department of
5 Homeland Security (“DHS”) and the TSA (collectively, “the federal defendants”), United
6 Airlines, and Doe defendants 1-10. Id.
On June 17, 2013, United Airlines filed a motion to dismiss plaintiff’s complaint.

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8 Dkt. No. 14. Prior to any federal defendant appearing in the action and by stipulation with
9 United Airlines, plaintiff chose not to oppose the motion to dismiss and instead filed a first
10 amended complaint on July 30, 2013. Dkt. Nos. 17, 18, 19.
In the first amended complaint, plaintiff brings this action in his own name as “a

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12 conserved adult by and through his father and Conservator Vishnu Shankar.” Dkt. No. 19.
13 Plaintiff further alleges that he “is temporarily conserved by his father for purposes of this
14 litigation.” Id. ¶ 6. The first amended complaint alleges two causes of action under federal
15 law, for violation of Title II and Title III (42 U.S.C. § 12131 et seq.) of the Americans with
16 Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and for violation of § 504 (29 U.S.C.
17 § 794) of the Health and Rehabilitation Act of 1973 (“the Rehabilitation Act”), as well as
18 three tort claims under state law for negligence, intentional infliction of emotional distress,
19 and negligent infliction of emotional distress. Id. Each claim is asserted against all
20 defendants, with the exception that United Airlines is not a defendant to the Rehabilitation
21 Act claim.
The Court has subject matter jurisdiction over plaintiff’s federal law claims under 28

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23 U.S.C. § 1331, and has supplemental jurisdiction over the state law claims under 28 U.S.C.
24 § 1367(a). All parties and the United States have consented to the jurisdiction of a United
25 States magistrate judge under 28 U.S.C. § 636(c). Dkt. Nos. 10, 20, 30, 55.
26 C.

The Motions to Dismiss

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On August 30, 2013, the federal defendants moved to dismiss the first amended

28 complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of standing, and for
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ORDER ON MOTIONS TO DISMISS

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1 failure to state a claim under Rule 12(b)(6). Dkt. No. 28. Among other relief, the federal
2 defendants request that the Court dismiss the tort claims against them on the basis that the
3 United States is the only proper defendant for those claims. Id. The motion also seeks to
4 strike portions of the complaint as immaterial and impertinent under Rule 12(f). Id.
5

On September 11, 2013, the United States filed a separate motion, seeking to dismiss

6 plaintiff’s tort claims for lack of jurisdiction under Federal Rule of Civil Procedure
7 12(b)(1), failure to state a claim under 12(b)(6), and lack of capacity to sue under Rule
8 17(b) and (c). Dkt. No. 35. The United States contends that the tort claims against it must
9 be dismissed on the ground that plaintiff did not file suit with legal capacity to sue in his
10 own name or through a representative against the United States within the required six11 month time period after receiving notice of denial of his administrative tort claim. Id.
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The Court held a hearing on the two motions to dismiss. After the hearing, the parties

13 submitted supplemental briefing, as ordered by the Court, on the issue of whether equitable
14 tolling applies to plaintiff’s tort claims. Dkt. Nos. 49, 50.
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II. STANDARD OF REVIEW
To survive a motion to dismiss, a complaint must contain sufficient factual matter,

17 accepted as true, to state a claim for relief that is plausible on its face. Bell Atl. Corp. v.
18 Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The
19 plausibility standard is not akin to a probability requirement, but it asks for more than a
20 sheer possibility that a defendant has acted unlawfully . . . . Where a complaint pleads facts
21 that are merely consistent with a defendant’s liability, it stops short of the line between
22 possibility and plausibility of entitlement to relief.” Iqbal, 556 U.S. at 678 (quoting
23 Twombly, 550 U.S. at 556–57) (internal quotation marks omitted). A court is not required
24 to accept as true conclusory allegations, unreasonable inferences, or unwarranted
25 deductions of fact. See Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031
26 (9th Cir. 2008). Additionally, a pleading that offers “labels and conclusions” or “a
27 formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at
28 555. Where a court dismisses for failure to state a claim under Rule 12(b)(6), it should
Case No. 13-cv-01490 NC
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1 normally grant leave to amend unless it determines that the pleading could not possibly be
2 cured by the allegation of other facts. Cook, Perkiss & Liehe v. N. Cal. Collection Serv.,
3 911 F.2d 242, 247 (9th Cir. 1990).
III. DISCUSSION

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5 A.

The Federal Defendants’ Motion to Dismiss Is Granted.

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1.

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Plaintiff’s ADA Claim Against the Federal Defendants Is Dismissed With
Prejudice.

Plaintiff’s first claim for relief alleges violations of Title II (public services) and Title

9 III (public accommodations and services operated by private entities) of the ADA against
10 all defendants. The federal defendants move to dismiss this claim on the basis that the
11 federal government is not subject to the provisions of either Title II or Title III of the ADA.
12 See Agee v. United States, 72 Fed. Cl. 284, 289 (Fed. Cl. 2006) (under Title II, 42 U.S.C. §
13 12131(1), the federal government is not included within the definition of a public entity,
14 while Title III of the ADA, 42 U.S.C. § 12181, does not apply to public entities); accord
15 Stringer v. White, No. 07-cv-5516 SI, 2008 WL 344215, at *6 (N.D. Cal. Feb. 6, 2008).
16 Plaintiff concedes that he cannot maintain an ADA claim against the federal government.
17 Dkt. No. 37 at 19:16-17. The first claim for relief is therefore dismissed with prejudice as
18 to the federal defendants.
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2.

Plaintiff Fails to State a Claim Against the Federal Defendants Under the
Rehabilitation Act.

Plaintiff’s second claim for relief is for violation of § 504 of the Rehabilitation Act,

22 29 U.S.C. § 794. Section 504 provides that “[n]o otherwise qualified individual with a
23 disability in the United States, as defined in section 705(20) of this title, shall, solely by
24 reason of her or his disability, be excluded from the participation in, be denied the benefits
25 of, or be subjected to discrimination under any program or activity receiving Federal
26 financial assistance or under any program or activity conducted by any Executive agency or
27 by the United States Postal Service.” 29 U.S.C. § 794. An otherwise qualified disabled
28 individual must be provided with reasonable accommodations to ensure meaningful access
Case No. 13-cv-01490 NC
ORDER ON MOTIONS TO DISMISS

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1 to the benefits of public services. Mark H. v. Hamamoto, 620 F.3d 1090, 1097 (9th Cir.
2 2010) (citations omitted). In order to plead a claim under either the ADA or the
3 Rehabilitation Act, plaintiff must show (1) he is disabled under the Act; (2) he is “otherwise
4 qualified” for the benefit or services sought; (3) he was excluded solely because of his
5 additional disabilities; and, (4) the program providing the benefit or services receives
6 federal financial assistance or is conducted by any executive agency. J.C. v. California Sch.
7 for Deaf, No. 06-cv-02337 JSW, 2006 WL 2850376, at *5 (N.D. Cal. Oct. 5, 2006); see
8 also Zukle v. Regents of the University of California, 166 F.3d 1041, 1045 n.11 (9th Cir.
9 1999) (“There is no significant difference in the analysis of rights and obligations created
10 by the ADA and the Rehabilitation Act . . . . Thus, courts have applied the same analysis to
11 claims brought under both statutes.”) (internal citations omitted). A plaintiff claiming
12 disability discrimination under Title II of the ADA or § 504 of the Rehabilitation Act bears
13 the burden of establishing the elements of the prima facie case, including, if needed, the
14 existence of a reasonable accommodation that would enable him to participate in the
15 program, service, or activity at issue. Pierce v. Cnty. of Orange, 526 F.3d 1190, 1217 (9th
16 Cir. 2008) (citation omitted); Wong v. Regents of Univ. of California, 192 F.3d 807, 816
17 (9th Cir. 1999).
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The complaint here alleges that “[t]he myriad of mental and emotional disorders and

19 disabilities from which [plaintiff] suffers substantially limits a major life activity, i.e.
20 commercial airline travel due to the fact that manifestations of his autism affect his behavior
21 and understanding of certain social skills and protocols associated with commercial airline
22 travel.” Dkt. No. 19 ¶ 45. Plaintiff claims that he “was entitled to the implementation of
23 accommodations and modifications to assist him when embarking on commercial airline
24 travel.” Id. Plaintiff alleges that the federal defendants “knew or should have known that
25 [plaintiff], due to his disability and lack of understanding could not fully access and/or
26 endure TSA’s security procedures in the same manner as would a traveler without
27 disabilities like [plaintiff]’s.” Id. ¶ 46. Plaintiff further alleges “on the basis of information
28 and belief” that DHS “failed to create appropriate screening procedures for patrons afflicted
Case No. 13-cv-01490 NC
ORDER ON MOTIONS TO DISMISS

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1 with autism while concurrently failing to insure that TSA trains and prepares their agents
2 regarding autism and the myriad of manifestations thereof.” Id. Plaintiff claims that “[d]ue
3 to the denial of Section 504 accommodations and modifications, [he] was unable to access a
4 commercial flight pre-planned to transport he and his family home to San Francisco,” id. ¶
5 48, and that he “has suffered emotional injury, upset, extreme anxiety, humiliation,
6 embarrassment and attorneys fees,” id. ¶ 46.
7

The federal defendants move to dismiss this claim both for lack of standing and for

8 failure to state a claim for relief under § 504 of the Rehabilitation Act. Dkt. No. 28 at
9 10:20-26.
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11

(a)

Standing

The federal defendants contend that plaintiff’s Rehabilitation Act claim must be

12 dismissed for lack of standing because the complaint fails to identify an injury in fact
13 caused by the federal defendants. Because standing is a jurisdictional question, courts
14 address standing issues first. Bank of New York Mellon v. Brewer, No. 12-cv-03179 RMW,
15 2012 WL 3904342, at *1 (N.D. Cal. Sept. 7, 2012) (citing Steel Co. v. Citizens for a Better
16 Environment, 523 U.S. 83, 94-95 (1998)). To establish Article III standing, a plaintiff must
17 show: (1) “an injury in fact—an invasion of a legally protected interest which is (a) concrete
18 and particularized and (b) actual or imminent, not conjectural or hypothetical”; (2) “a causal
19 connection between the injury and the conduct complained of—the injury has to be fairly
20 . . . traceable to the challenged action of the defendant, and not . . . the result of the
21 independent action of some third party not before the court”; and (3) “it must be likely, as
22 opposed to merely speculative, that the injury will be redressed by a favorable decision.”
23 Drake v. Obama, 664 F.3d 774, 779 (9th Cir. 2011) (quoting Lujan v. Defenders of Wildlife,
24 504 U.S. 555, 560-61 (1992)). The existence of federal standing “often turns on the nature
25 and source of the claim asserted.” Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939,
26 947 (9th Cir. 2011) (quoting Warth v. Seldin, 422 U.S. 490, 500 (1975)).
27

The federal defendants argue that plaintiff fails to meet the Article III standing

28 requirement of injury in fact and causation because the gravamen of plaintiff’s action is
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ORDER ON MOTIONS TO DISMISS

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1 conduct by and between plaintiff and United Airlines, not any identified conduct by the
2 federal defendants. The Court agrees that the complaint does not sufficiently plead an
3 injury fairly traceable to the conduct of the federal defendants. Article III “requires that a
4 federal court act only to redress injury that fairly can be traced to the challenged action of
5 the defendant, and not injury that results from the independent action of some third party
6 not before the court.” Simon v. E. Kentucky Welfare Rights Org., 426 U.S. 26, 41-42
7 (1976). While the complaint here asserts that the alleged denial of accommodations and
8 modifications by the federal defendants caused plaintiff to be “unable to access” a flight,
9 Dkt. No. 19 ¶ 48, there are no facts to support a reasonable inference that plaintiff was
10 removed from the flight due to the federal defendants’ alleged failure to provide meaningful
11 access to security screening.
12

In opposition, plaintiff argues that “[g]iven the ‘thumbs up’ between the TSA agent

13 and [United Airlines’] ground crew, no reasonable minds can differ but that there was a
14 causal link between [United Airlines’] demand that [plaintiff] and his family deplane and
15 the ‘high five incident.’” Dkt. No. 37 at 6:17-19. Plaintiff is thus asking the Court to infer
16 entirely based on the “thumbs up” sign between the TSA agent and the United Airlines’
17 ground crew that (1) the TSA agent reported the contact with plaintiff to the United Airlines
18 ground crew; (2) the report constituted discrimination solely based on plaintiff’s disability;
19 and (3) the report caused plaintiff to be removed from the airplane. The factual allegations
20 of the complaint, however, do not support these inferences.
21

First, it is possible that the TSA agent gave a “thumbs up” sign to the United Airlines

22 crew for a number of different reasons. Absent any additional facts, it would be speculative
23 to infer that the “thumbs up” sign meant that the TSA agent “reported th[e] contact as an
24 assault to the pilot and/or ground crew,” Dkt. No. 19 ¶ 46, or, as plaintiff argues in his
25 opposition, “the TSA agent informed the [United Airlines] ground crew that [plaintiff] may
26 be a problem on the aircraft.” Dkt. No. 37 at 11:5-7. Plaintiff argues that such a “report”
27 by the TSA agent must have occurred because “[H]ow else would the ground crew have
28 known that [plaintiff] may have been a potential problem?” Dkt. No. 37 at 11:13-14.
Case No. 13-cv-01490 NC
ORDER ON MOTIONS TO DISMISS

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1 However, the United Airlines ground crew could have received information about plaintiff
2 through the United Airlines ticket agent who was involved in correcting the ticket
3 cancellations and who is alleged to have been “rude, dismissive and poorly trained
4 regarding service and decorum for passengers with disabilities.” Dkt. No. ¶ 17. Moreover,
5 the inferences drawn by plaintiff are unwarranted in light of the factual allegations of the
6 complaint. Because the TSA agent was allegedly smiling and “reciprocated in kind” when
7 plaintiff slapped the agent’s hand, it seems unlikely that the agent would then report this
8 interaction as “an assault.” While the complaint alleges that the TSA agent yelled “this kid
9 hit me,” there is no indication that the TSA agent attempted in any way to impede plaintiff’s
10 security screening and boarding of the plane. To the contrary, the security screening was
11 completed, and plaintiff walked calmly and happily with his father through the concourse
12 and onto the plane. Dkt. No. 19 ¶¶ 19-22. Furthermore, plaintiff was later rebooked on a
13 different flight, again with no indication that the federal defendants were involved in the
14 process of removing the plaintiff from the original flight. Id. ¶ 26.
15

Second, even if the Court could infer that the TSA agent reported the contact with

16 plaintiff to the United Airlines ground crew (and also assuming such a report would
17 constitute disability discrimination), there are no facts alleged to support the inference that
18 United Airlines acted to remove plaintiff and his family from the original flight because of
19 the TSA agent’s report. There is no allegation that the federal defendants required, or even
20 requested, that plaintiff and his family be removed from the flight. Instead, the complaint
21 alleges that the United Airlines crew told plaintiff’s father that “the pilot specifically
22 wanted” plaintiff and his father to get off the aircraft. Dkt. No. 19 ¶ 24 (emphasis added).
23 Again, it is just as possible that United Airlines removed plaintiff from the original flight
24 for reasons unrelated to the TSA agent’s purported “report,” especially in light of the
25 alleged interactions between plaintiff and his family and the United Airlines ticket agent.
26

Third, even if the Court were to find in plaintiff’s favor on his Rehabilitation Act

27 claim against the federal defendants, such a decision will not be likely to redress plaintiff’s
28 injuries which are based on the alleged conduct of another party—United Airlines. See
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1 Simon, 426 U.S. at 42-44 (holding that indigents lacked standing to challenge revenue
2 ruling allowing favorable tax treatment to nonprofit hospitals, where it was speculative
3 whether denial of access to hospital services to indigents resulted from the revenue ruling
4 and whether exercise of court’s remedial powers would result in the availability to indigents
5 of such services); Moss v. United States Secret Serv., 572 F.3d 962, 970-71 (9th Cir. 2009)
6 (rejecting conclusory allegations of impermissible motive in the absence of any factual
7 allegations tying Secret Service agents to the actions of the local police). As in Simon and
8 Moss, speculative inferences are necessary to connect plaintiff’s injuries to the challenged
9 actions of the federal defendants. Plaintiff does not plead sufficient facts to allow the Court
10 to reasonably infer that any of the alleged injuries stemming from the alleged rude conduct
11 during the rebooking and removal from the flight by United Airlines are fairly traceable to
12 the federal defendants.
13

Finally, while alleged disability discrimination suffered by plaintiff can be an injury

14 in fact for purposes of standing, plaintiff has failed to plead sufficient facts giving rise to a
15 plausible claim of discrimination under § 504 of the Rehabilitation Act. See Davis v.
16 Astrue, 874 F. Supp. 2d 856, 864 (N.D. Cal. 2012) (citations omitted).
17

Accordingly, the motion to dismiss plaintiff’s Rehabilitation Act claim against the

18 federal defendants based on lack of standing is granted with leave to amend.
19
20

(b)

Failure to State a Claim

The federal defendants also move to dismiss plaintiff’s Rehabilitation Act claim for

21 failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) on the grounds that
22 (1) plaintiff predicates his disability claim on denial of a reasonable accommodation but
23 fails to plead facts demonstrating that he (a) does not have meaningful access to a federal
24 program or activity, (b) required and was entitled to a reasonable accommodation, and (c)
25 requested such an accommodation from the federal defendants, and that it was denied; and
26 (2) the minimal conduct alleged against the federal defendants is insufficient to demonstrate
27 discrimination solely by reason of plaintiff’s alleged disability. Dkt. No. 28 at 10:20-26. In
28 addition to these asserted grounds for dismissal, the federal defendants raise two other
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1 “pleading defects” with respect to plaintiff’s Rehabilitation Act claim which the Court will
2 address first.
3

Preliminarily, the federal defendants contend that plaintiff’s Rehabilitation Act claim

4 is defective because “TSA is not a ‘recipient of federal financial assistance’ as that term is
5 used in Section 504.” Dkt. No. 38 at 11:11-14. However, by its own terms, § 504 applies
6 to “any program or activity receiving Federal financial assistance or . . . any program or
7 activity conducted by any Executive agency or by the United States Postal Service.” 29
8 U.S.C. § 794; see also Davis v. Astrue, No. 06-cv-6108 EMC, 2011 WL 3651064, at *2-3
9 (N.D. Cal. Aug. 18, 2011) (explaining that § 504 authorizes a private right of action for
10 injunctive or equitable relief against both recipients of federal funds as well as the federal
11 government itself) (citing Doe v. Attorney General, 941 F.2d 780, 785 (9th Cir. 1991),
12 overruled on other grounds by Lane v. Pena, 518 U.S. 187, 191 (1996)).
13

The TSA was created as an administration of the Department of Transportation,

14 which is an executive department of the United States and shares certain responsibilities
15 with the DHS concerning transportation security strategic planning. 49 U.S.C. §§ 114, 102.
16 Subsequently, the TSA became part of the DHS. 6 U.S.C. 203(2); see Castro v. Sec’y of
17 Homeland Sec., 472 F.3d 1334, 1335 (11th Cir. 2006). The DHS has issued regulations to
18 enforce § 504. See 6 C.F.R. § 15.30 (prohibiting discrimination by DHS); 6 C.F.R. § 15.1
19 (“The purpose of this part is to effectuate section 504 of the Rehabilitation Act of 1973 . . . ,
20 which prohibits discrimination on the basis of disability in programs or activities conducted
21 by Executive agencies.”); cf. Castro, 472 F.3d at 1335 (holding that a disabled applicant for
22 a transportation security screening position cannot sue DHS for violation of the
23 Rehabilitation Act because the Aviation and Transportation Security Act, 49 U.S.C. §
24 44935 exempts TSA from certain requirements of the Rehabilitation Act with regard to
25 employment of security screeners). Accordingly, the federal defendants fall within the
26 definition of “Executive agency” within the meaning of § 504.
27

Another “pleading defect” raised by the federal defendants is that air travel is not a

28 major life activity. Dkt. No. 38 at 11:11-14. To state a claim under § 504 of the
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1 Rehabilitation Act, plaintiff must be a qualified individual with a disability as defined in
2 § 705(20). 29 U.S.C. §§ 705(20), 794. For purposes of the ADA and the Rehabilitation
3 Act, “an individual is disabled if that individual (1) has a physical or mental impairment
4 that substantially limits one or more of the individual’s major life activities; (2) has a record
5 of such an impairment; or (3) is regarded as having such an impairment.” Coons v. Sec’y of
6 U.S. Dep’t of Treasury, 383 F.3d 879, 884 (9th Cir. 2004) (citations omitted); 6 C.F.R. §
7 15.3(d). A mental impairment covered under the Rehabilitation Act includes any mental or
8 psychological disorder such as emotional or mental illness. Coons, 383 F.3d at 884-85; 6
9 C.F.R. § 15.3(d)(1)(i) (mental impairment includes “[a]ny mental or psychological disorder
10 such as mental retardation, organic brain syndrome, emotional or mental illness, and
11 specific learning disabilities.”). Major life activities includes functions such as caring for
12 one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning,
13 and working. Coons, 383 F.3d at 885; 6 C.F.R. § 15.3(d)(2).
14

Plaintiff here alleges that he “is afflicted with autism which impedes his ability to

15 understand, communicate and interpret his daily living experiences, especially those which
16 are unusual and not within the realm of his typical daily routine.” Dkt. No. 19 ¶ 6. Plaintiff
17 further alleges that he “is substantially impaired in major life activities” and that his
18 “impairments render him unable to understand communication, appropriate social
19 interactions and to suffer from low frustration tolerance relating to unexpected transitions
20 and delays.” Id. ¶ 11. These allegations distinguish this case from Coons, cited by the
21 federal defendants for the proposition that air travel is not a major life activity, because the
22 plaintiff in Coons “identified travel as the only major life activity that was limited by his
23 impairments.” Coons, 383 F.3d at 885. The Court concludes that plaintiff here has
24 sufficiently alleged that his autism is a mental impairment that substantially limits major life
25 activities such as his ability to understand or communicate, and therefore is a disabled
26 individual for purposes of his § 504 claim. See Mark H. v. Hamamoto, 620 F.3d 1090, 1097
27 (9th Cir. 2010) (students with autism were individuals with disability for purposes of the
28 Rehabilitation Act). The federal defendants have not provided any authority to the contrary.
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1

The Court, however, agrees with the federal defendants that plaintiff has not stated a

2 plausible § 504 claim because he has failed to identify a federal program or activity to
3 which he does not have meaningful access. Plaintiff claims that he “was entitled to the
4 implementation of accommodations and modifications to assist him when embarking on
5 commercial airline travel.” Dkt. Nos. 19 ¶ 45; 37 at 14:23-24. However, “commercial
6 airline travel” is not a “program” or “activity” conducted by the federal defendants. The
7 TSA is charged with providing security screening operations for the civil air transportation
8 system. 49 U.S.C. § 114; see Field v. Napolitano, 663 F.3d 505, 508 (1st Cir. 2011) (to
9 improve aviation security after the terrorist attacks of September 11, 2001, “Congress
10 created a new agency, the TSA, with sweeping responsibility for airport security screening,
11 including setting the qualifications, conditions, and standards of employment for airport
12 security screeners”). The complaint here does not challenge any aspect of the federal
13 defendants’ security procedures at the Honolulu airport that plaintiff encountered.
14 According to the complaint, at the conclusion of the TSA security screening, plaintiff gave
15 a “high five sign” to one of the TSA agents who was smiling and “reciprocated in kind.”
16 Dkt. No. 19 ¶ 20, n.3. The allegation that, as plaintiff’s father was going through the
17 security checkpoint, the same TSA agent yelled out “this kid hit me,” id. ¶ 21, does not
18 allege sufficient facts showing that plaintiff was denied meaningful access to the security
19 screening procedures. Nor has plaintiff alleged facts showing the existence of any
20 reasonable accommodation that would provide him meaningful access, or that he requested
21 such an accommodation and it was denied.
22

Additionally, there are no factual assertions that the federal defendants knew or

23 should have known anything about plaintiff’s disability. Plaintiff’s allegations that the
24 federal defendants “knew or should have known that [plaintiff], due to his disability and
25 lack of understanding could not fully access and/or endure TSA’s security procedures in the
26 same manner as would a traveler without disabilities like [plaintiff]’s” are conclusory and
27 implausible in light of the factual allegations of the complaint. Dkt. Nos. 19 ¶ 46; 37 at
28 14:27-15:2. According to the complaint, plaintiff made his way through the security check
Case No. 13-cv-01490 NC
ORDER ON MOTIONS TO DISMISS

14

1 “calm and not manifesting any bizarre noises or behaviors.” Dkt. No. 19 ¶ 19. It was only
2 after the TSA agent allegedly yelled “this kid hit me,” that plaintiff’s father informed the
3 TSA agent that plaintiff is autistic. Id. ¶¶ 19-21. The complaint therefore does not show
4 that plaintiff was discriminated “solely by reason of . . . his disability.” 29 U.S.C. § 794.
Accordingly, the complaint does not allege sufficient facts to demonstrate conduct

5

6 plausibly giving rise to a claim under the Rehabilitation Act against the federal defendants.
7 Plaintiff’s Rehabilitation Act claim against the federal defendants is dismissed with leave to
8 amend.
9

3.

10

Plaintiff’s Tort Claims Against the Federal Defendants Are Dismissed
with Leave to Amend.
(a)

11

The Tort Claims Are Dismissed with Leave to Substitute the United
States as a Defendant.

The federal defendants also move to dismiss plaintiff’s tort claims against them on the

12

13 basis that the Court does not have jurisdiction over such claims and that only the United
14 States is the proper defendant. Dkt. No. 28 at 31-32. Plaintiff fails to address this argument
15 in his opposition.
“Absent a waiver, sovereign immunity shields the Federal Government and its

16

17 agencies from suit.” F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994). The Federal Tort Claims
18 Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-80, waives the sovereign immunity of the
19 United States for certain torts committed by federal employees. F.D.I.C., 510 U.S. at 47520 76. However, because the United States is the only proper party defendant in an FTCA
21 action, the Court must dismiss the federal agencies named as defendants. Kennedy v. U.S.
22 Postal Serv., 145 F.3d 1077, 1078 (9th Cir. 1998); McAllister v. United States, No. 11-cv23 03858 MEJ, 2013 WL 2551990, at *2-3 (N.D. Cal. June 10, 2013). Because plaintiff
24 cannot maintain his tort causes of action against the federal defendants, those claims must
25 be dismissed. The Court will permit leave to amend to substitute the United States in the
26 place of the federal defendants.
27 //
28
Case No. 13-cv-01490 NC
ORDER ON MOTIONS TO DISMISS

15

1
2

(b)

The Tort Claims Are Dismissed for Lack of Standing.

The federal defendants contend that all of plaintiff’s claims must be dismissed for

3 lack of standing because plaintiff has failed to allege facts showing that any of the alleged
4 injuries of ticketing cancellation, rebooking, rude conduct and removal from the flight, all
5 by United Airlines, are fairly traceable to the federal defendants. Dkt. Nos. 28 at 10:20-21;
6 38 at 9:3-10. The Court agrees that the failure to satisfy these elements of standing also
7 requires the dismissal of the tort claims against the federal defendants.
8

Under the FTCA, tort actions against the United States are governed by the “law of

9 the place where the act or omission occurred.” 28 U.S.C. §1346(b)(1); Kangley v. United
10 States, 788 F.2d 533, 534 (9th Cir. 1986). In this case, the Court applies the law of the state
11 of Hawaii where the relevant events occurred.
12

Under Hawaii law, there are four primary elements to a negligence claim: (1) “[a]

13 duty or obligation, recognized by the law, requiring the defendant to conform to a certain
14 standard of conduct, for the protection of others against unreasonable risks”; (2) “[a] failure
15 on the defendant’s part to conform to the standard required: a breach of the duty”; (3) “[a]
16 reasonably close causal connection between the conduct and the resulting injury”; and (4)
17 “[a]ctual loss or damage resulting to the interests of another.” Doe Parents No. 1 v. State,
18 Dep’t of Educ., 100 Haw. 34, 68 (2002) (citation omitted); Sung v. Hamilton, 710 F. Supp.
19 2d 1036, 1054 (D. Haw. 2010). Furthermore, Hawaii law treats a claim for negligent
20 infliction of emotional distress claim as a negligence claim in which “the alleged actual
21 injury is wholly psychic.” Doe Parents No. 1, 100 Haw. at 69.
22

To state a claim for intentional infliction of emotional distress under Hawaii law a

23 plaintiff must allege: “(1) that the act allegedly causing the harm was intentional or reckless,
24 (2) that the act was outrageous, and (3) that the act caused (4) extreme emotional distress to
25 another.” Enoka v. AIG Hawaii Ins. Co., Inc., 109 Haw. 537, 559 (2006) (citation omitted).
26

As the Court explained in connection with the Rehabilitation Act claim, plaintiff does

27 not plead sufficient facts to allow the Court to reasonably infer that any of the alleged
28 injuries suffered by him due to the alleged rude conduct during the rebooking and removal
Case No. 13-cv-01490 NC
ORDER ON MOTIONS TO DISMISS

16

1 from the flight by United Airlines are fairly traceable to the federal defendants.
2 Accordingly, plaintiff’s tort claims against the federal defendants are dismissed for lack of
3 standing with leave to amend.
4

(c)

5
6

The Negligence Claims Are Dismissed for Failure to Allege a Duty
That Was Breached and Causation.

The federal defendants move to dismiss the negligence claims for the additional

7 reason that they are improperly predicated on alleged disability discrimination, as opposed
8 to conduct recognizable under state tort law. Dkt. No. 28 at 10:26-11:3. The federal
9 defendants contend that, to the extent plaintiff predicates his negligence torts on training, he
10 has failed to plead sufficient facts demonstrating negligent training that resulted in harm to
11 him. Id.
12

A claim for negligence requires plaintiff to allege “[a] duty or obligation, recognized

13 by the law, requiring the defendant to conform to a certain standard of conduct, for the
14 protection of others against unreasonable risks.” Doe Parents No. 1, 100 Haw. at 68.
15 “Regardless of the source of a particular duty, a defendant’s liability for failing to adhere to
16 the requisite standard of care is limited by the preposition that the defendant’s obligation to
17 refrain from particular conduct [or, as the circumstances may warrant, to take whatever
18 affirmative steps are reasonable to protect another] is owed only to those who are
19 foreseeably endangered by the conduct and only with respect to those risks or hazards
20 whose likelihood made the conduct [or omission] unreasonably dangerous.” Id. at 72
21 (internal quotation marks and citation omitted).
22

The complaint here alleges that “[a]s a common carrier and facilitator of commercial

23 airline passage, Defendants have an affirmative duty to train their employees about
24 disability awareness, including the procedures and protocols necessary to avoid disability
25 discrimination.” Dkt. No. 19 ¶¶ 51, 59. The complaint sets forth a list of acts and
26 omissions that allegedly “fell short of the duties owed.” Id. ¶ 52. While plaintiff does not
27 identify which defendants are responsible for which of the different acts and omissions, the
28 only listed conduct that appears to apply to the federal defendants is in “evidencing
Case No. 13-cv-01490 NC
ORDER ON MOTIONS TO DISMISS

17

1 disability discrimination . . . by the TSA agent who reciprocated the high five then yelled
2 out ‘this kid hit me,’” id. ¶ 52(e), “not properly training or supervising their employees
3 about appropriate disability protocol and disability awareness,” id. ¶ 52(f), and
4 “intentionally delaying the implementation of disability accommodations and corrective
5 measures such as a disability audit,” id. ¶ 52(i). With respect to all “defendants,” the
6 complaint alleges that defendants breached the duty to train by (1) “failing to provide
7 reasonable accommodations to [plaintiff]”; and (2) “by participating in a contrived and
8 deliberate effort to discriminate against [plaintiff] based on his documented disabilities.”
9 Id. ¶ 59. Plaintiff claims that as a direct and proximate result of the acts and omissions of
10 defendants, he has “suffered severe physical, emotional and economic injury including, but
11 not limited to, exacerbation of existing medical and psychiatric conditions, severe emotional
12 distress, extreme anxiety, humiliation, embarrassment and attorneys fees.” Id. ¶¶ 53, 60.
The Court agrees that plaintiff has not alleged a duty to train by the federal defendants

13

14 recognized by Hawaii law. Moreover, even if a duty to train is cognizable, the complaint
1
15 fails to allege facts plausibly demonstrating that the federal defendants breached this duty.

16 Finally, plaintiff alleges no facts that any alleged breach of a duty to train by federal
17 defendants proximately caused plaintiff any of the alleged harm. In his opposition, plaintiff
18 argues that the TSA agent’s utterance “this kid hit me” set into motion “a chain of events”
19 that ultimately caused his forced removal from the airplane. Dkt. No. 37 at 16:7-25.
20 Plaintiff further argues that the removal from the airplane “was based on false and
21 misleading circumstances that should have been easily overcome had the TSA agent been
22 more receptive and aware of autism and its manifestations.” Id. at 16:15-18. However, as
23 discussed above, plaintiff’s causation theory is not based on facts but rather on speculation
24 and unwarranted inferences. Accordingly, because plaintiff fails to allege a cognizable duty
25
26
27
28

1

The federal defendants argue that, even if he could plead such facts, plaintiff’s theory would be
barred by the discretionary function exception to the FTCA. Dkt. No. 28 at 11:3-4. Because it is
unclear whether plaintiff would be able to amend the complaint to allege a cognizable duty under
Hawaii law and a breach of that duty, the Court does not reach the issue of whether the
discretionary function exception bars plaintiff’s tort claims against the federal defendants.
Case No. 13-cv-01490 NC
ORDER ON MOTIONS TO DISMISS
18

1 under state law, breach, and proximate harm caused by the breach, his tort claims against
2 the federal defendants are dismissed with leave to amend.
3

(d)

4
5

The Claim for Intentional Infliction of Emotional Distress Is
Dismissed for Failure to Allege Outrageous Conduct.

Additionally, the Court agrees with the federal defendants that the complaint does not

6 state a claim for intentional infliction of emotional distress against them because plaintiff
7 has failed to sufficiently allege that they engaged in outrageous conduct. Dkt. No. 28 at
8 11:4-5. The term “outrageous” has been construed to mean “without just cause or excuse
9 and beyond all bounds of decency.” Enoka, 109 Haw. at 559 (citation omitted); Kittleson v.
10 Sears, Roebuck & Co., No. 10-cv-00106, 2010 WL 2485935, at *5 (D. Haw. June 15,
11 2010).
12

The complaint here contains mere conclusory assertions. Dkt. No. 19 ¶ 55. Plaintiff

13 claims that defendants “volitionally chose to mimic, antagonize and impede [plaintiff]’s
14 access to public transportation,” and that “[a]s each of the Defendants encountered
15 [plaintiff], they mocked him, imitated and made fun of him as he made his way through the
16 terminal and onto the aircraft. ” Id. ¶ 56. However, these allegations are not supported by
17 any of the facts alleged in the complaint as to the federal defendants. The alleged facts
18 related to the conduct of the federal defendants are that, when plaintiff slapped the hand of
19 the TSA agent, the agent was smiling and “reciprocated in kind,” id. ¶ 20, n.3, the TSA
20 agent yelled “this kid hit me,” id. ¶ 21, plaintiff and his family completed the security
21 screening, plaintiff “was calm and happy” as he walked with his father through the
22 concourse and onto the plane, id. ¶ 22, and later when plaintiff and his father were escorted
23 into the airport after deplaning, his father noticed United Airlines agents give a “thumbs up”
24 sign to the TSA agent who reciprocated Plaintiff’s “high five” sign, id. ¶ 25. It is not
25 reasonable to infer from these facts that the federal defendants “mocked,” “imitated,”
26 “made fun of” plaintiff, or otherwise “impeded” plaintiff’s access to public transportation.
27

Furthermore, according to the complaint, plaintiff made his way through the security

28 check “calm and not manifesting any bizarre noises or behaviors” and it was only after he
Case No. 13-cv-01490 NC
ORDER ON MOTIONS TO DISMISS

19

1 completed his security screening that the TSA agent allegedly yelled “this kid hit me” and
2 plaintiff’s father informed the TSA agent that plaintiff is autistic. Id. ¶¶ 19-21. Thus,
3 plaintiff’s allegation that “Defendants, while knowing [his] particular vulnerabilities and
4 with actual knowledge of his mental and emotional disorders, acted with malice, intolerable
5 cruelty and wilful disregard,” id. ¶ 55, offers mere “labels and conclusions” that are not
6 sufficient to state a claim. There are no facts plausibly asserting that the federal defendants
7 knew or should have known anything about plaintiff’s “particular vulnerabilities” during the
8 security screening. Because plaintiff has failed to allege outrageous conduct, his claim for
9 intentional infliction of emotional distress against the federal defendants is dismissed with
10 leave to amend.
11

4.

12

The federal defendants contend that defendants Does 1-10 should be dismissed on the

The Request to Dismiss the Doe Defendants Is Denied.

13 grounds that “Doe pleading” (1) is generally improper in federal court; and (2) the only
14 proper defendant under the FTCA is the United States. Dkt. No. 28 at 30. The federal
15 defendants reason that “[t]o the extent Plaintiff contends that some unknown person is
16 responsible for the acts alleged, whatever they may be, then his beef cannot be with the
17 federal defendants.” Dkt. No. 38 at 18:18-20. The Court agrees that, to the extent Does 118 10 are federal agencies, plaintiff’s tort claims against them must be dismissed for the same
19 reason the Court dismissed the FTCA claims against the federal defendants. However, the
20 complaint does not limit Does 1-10 to federal agencies. In light of the fact that this case is
21 at its early stage and plaintiff has not had the benefit of discovery, the Court denies the
22 request to dismiss the Doe defendants at this time without prejudice.
23

5.

24

The federal defendants further argue that, while plaintiff brings this lawsuit on his

The References In the Complaint to “Others” Are Stricken.

25 own behalf about alleged conduct against him, his complaint references unspecified
26 “others.” Dkt. No. 28 at 32: 10-33:10; see e.g., Dkt. No. 19 ¶ 27 (alleging that United
27 Airlines’ alleged denial of access to Flight 74 “coupled with the false allegations from the
28 TSA agent impeded [plaintiff] and others with disabilities from full and equal enjoyment of
Case No. 13-cv-01490 NC
ORDER ON MOTIONS TO DISMISS

20

1 the rights of citizenship in a free society.”). The federal defendants move to strike all such
2 references to “others” in the complaint as immaterial and impertinent to plaintiff’s claims
3 under Federal Rule of Civil Procedure 12(f). In his opposition, plaintiff indicates that he is
4 willing to amend his complaint to remove such references to “others.” Dkt. No. 37 at
5 19:19-22. Accordingly, the Court orders the references to “others” stricken.
6 B.

The United States’ Motion to Dismiss Is Denied.

7

The United States moves to dismiss the tort claims against it2 on the ground that

8 plaintiff did not file suit with legal capacity to sue in his own name or through a
9 representative within the required six-month time period after receiving notice of denial of
10 his administrative tort claim. Dkt. No. 35. Under the FTCA, a tort claim against the United
11 States “shall be forever barred . . . unless action is begun within six months after the date of
12 mailing . . . of notice of final denial of the claim by the agency to which it was presented.”
13 28 U.S.C. § 2401(b).
Here, the complaint alleges that plaintiff filed a claim notification under the FTCA

14

15 with the TSA on February 1, 2010, and that he was issued a right to sue letter on October
16 12, 2012. Dkt. No. 19 ¶ 4. On April 3, 2013, plaintiff filed the original complaint in his
17 own name and without reference to conservatorship. Dkt. No. 1. On July 30, 2013,
18 plaintiff filed his first amended complaint, purporting to bring this action in his own name
19 as “a conserved adult by and through his father and Conservator Vishnu Shankar.” Dkt.
20 No. 19. Plaintiff further alleges that he “is temporarily conserved by his father for purposes
21 of this litigation.” Id. ¶ 6. Plaintiff acknowledges that at the time of filing his initial
22

2

The United States is not named as a defendant in the first amended complaint. Plaintiff urges the

23 Court to deny the United States’ motion on the basis that the federal defendants have already filed a
24 motion to dismiss without raising the capacity issue and that defendants should not be allowed “two
25
26
27

bites of the same apple.” Dkt. No. 39 at 6. The United States responds that it is the only proper
defendant in an FTCA action, and that it has thus moved to dismiss the tort claims so that the Court
should hear the motions to dismiss together to save the time and resources of the parties. Dkt. No.
41 at 4. Given the Court’s dismissal of the tort claims against the federal defendants with leave to
substitute the United States as a defendant, the Court agrees that it is in the interest of justice to rule
on the merits of the United States’ motion now.

28
Case No. 13-cv-01490 NC
ORDER ON MOTIONS TO DISMISS

21

1 complaint he was not conserved and contends that a temporary conservatorship giving his
2 father power to engage in litigation on plaintiff’s behalf was put in place on June 27, 2013,
3 before the filing of the amended complaint. Dkt. Nos. 39 at 5 n.1, 9; 49 at 2. On September
4 18, 2013, the San Mateo County Superior Court issued letters of conservatorship and an
3
5 order appointing probate conservator. Dkt. Nos. 40; 49 at 8.

It is undisputed that plaintiff filed his initial complaint within six months after

6

7 receiving notice of denial. The United States nonetheless argues that plaintiff’s tort claims
8 should be dismissed on the ground that he did not comply with the six-month filing deadline
9 as he did not have capacity to sue at the time the original complaint was filed, and because
10 his first amended complaint was not filed until after the expiration of the six-month filing
11 deadline. Dkt. Nos. 35 at 13-14; 41 at 6. Plaintiff does not appear to contest the assertion
4
12 that he did not have capacity to bring suit at the time of filing of the initial complaint.

The United States asserts that a plaintiff “cannot come into federal court without the

13

14 capacity to sue,” citing Federal Rule of Civil Procedure 17. Dkt. Nos. 35 at 7; 41 at 5, 7.
15 However, the Court does not agree with the United States’ contention that plaintiff’s lack of
16 capacity is a fatal defect requiring the dismissal of his tort claims as time-barred. Lack of
17 capacity is generally not considered a jurisdictional defect. See e.g., Summers v. Interstate
18 Tractor & Equip. Co., 466 F.2d 42, 50 (9th Cir. 1972); E.R. Squibb & Sons, Inc. v. Accident
19 & Cas. Ins. Co., 160 F.3d 925, 936 (2d Cir. 1998); Bank of New York Mellon v. Brewer, No.
20 12-03179 RMW, 2012 WL 3904342, at *1 (N.D. Cal. Sept. 7, 2012). Moreover, where a
21 plaintiff originally lacks capacity to sue, the Court has the authority to permit an
22
3

23
24
25
26
27
28

In connection with its motion to dismiss, the United States requests that the Court take judicial
notice of the following materials: (1) Plaintiff’s counsel’s September 5, 2013 cover email to the
court with attachment of the superior court’s order regarding temporary conservatorship of
Plaintiff; and (2) the current docket in the probate matter of Ryan Shankar in the San Mateo
Superior Court, Case No. 123479, obtained from the San Mateo Superior Court’s publicly available
website. Dkt. Nos. 35-1, 35-2. The United States’ unopposed request for judicial notice is granted
under Federal Rule of Evidence 201(b)(2).
4

For the purposes of ruling on the United States’ motion to dismiss the tort claims, the Court will
assume that plaintiff is without capacity to sue, without making a determination on the issue of
capacity which is addressed later in this order.
Case No. 13-cv-01490 NC
ORDER ON MOTIONS TO DISMISS
22

1 amendment of the complaint to allege the claims in plaintiff’s proper capacity and may
2 relate such amendment back to the date of the original pleading where the amendment does
3 not change the claims asserted. De Franco v. United States, 18 F.R.D. 156, 161 (S.D. Cal.
4 1955) (citing cases); see Fed. R. Civ. Proc. 15(c) (governing relation back of amendments).
5 “[I]n such cases the defect is purely formal or procedural, and . . . essential justice requires
6 that liberal amendment be permitted.” De Franco, 18 F.R.D. at 161. Notably, the United
7 States has failed to cite to any case law, and the Court is not aware of any, that holds that a
8 plaintiff’s initial lack of capacity renders the filing of an action a nullity for purposes of the
9 six-month filing requirement under the FTCA, 28 U.S.C. § 2401(b).
10

Furthermore, the United States’ motion to dismiss asserts that, because the six-month

11 filing deadline is jurisdictional and not subject to tolling principles, plaintiff’s failure to
12 comply with the deadline deprives the federal courts of jurisdiction over plaintiff’s tort
13 claims. Dkt. No. 35 at 13-14, citing Marley v. United States, 567 F.3d 1030, 1038 (9th Cir.
14 2009). However, on October 9, 2013, after the United States’ motion to dismiss was fully
15 briefed, the Ninth Circuit issued the opinion in Wong v. Beebe, 732 F.3d 1030 (9th Cir.
16 2013) expressly overruling the Marley case. In Wong, an en banc panel of the Ninth Circuit
17 held that the statute of limitations in 28 U.S.C. § 2401(b) of the FTCA is not jurisdictional
18 and is subject to a presumption of equitable tolling. Id. at 1033, 1047. The Ninth Circuit
19 found that equitable tolling was “easily” justified under the circumstances presented in that
20 case which showed that plaintiff’s failure to file a negligence claim within the six-month
21 filing deadline was not the consequence of any fault or lack of due diligence on her part, but
22 was due solely to the district court’s delay in ruling on her motion to amend the complaint
23 to allege the negligence claim. Id. at 1052-53.
24

In reaching this conclusion, the Ninth Circuit applied “[l]ong-settled equitable-tolling

25 principles” instructing that “[g]enerally, a litigant seeking equitable tolling bears the burden
26 of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that
27 some extraordinary circumstances stood in his way.” Id. at 1052 (internal quotation marks
28 and citations omitted). “As to the first element, ‘[t]he standard for reasonable diligence
Case No. 13-cv-01490 NC
ORDER ON MOTIONS TO DISMISS

23

1 does not require an overzealous or extreme pursuit of any and every avenue of relief. It
2 requires the effort that a reasonable person might be expected to deliver under his or her
3 particular circumstances.’” Id. (citation omitted). “Central to the analysis is whether the
4 plaintiff was ‘without any fault’ in pursuing his claim. Id. (citation omitted). “With regard
5 to the second showing, ‘a garden variety claim of excusable neglect, such as a simple
6 miscalculation that leads a lawyer to miss a filing deadline, does not warrant equitable
7 tolling.’” Id. (citation omitted). “Instead, a litigant must show that ‘extraordinary
8 circumstances were the cause of his untimeliness and . . . ma[de] it impossible to file [the
9 document] on time.’” Id. (citation omitted).
10

Applying these principles, the Court finds that the circumstances here justify

11 equitable tolling. Plaintiff timely initiated this action within the six-month filing deadline,
12 which served to inform the United States of his tort claims and thus “fulfilled the notice
13 concern that partially underlies limitations statutes.” See Wong, 732 F.3d at 1053.
14 Moreover, plaintiff obtained a temporary conservatorship on June 27, 2013, less than three
15 months after the six-month filing deadline, and also sought to obtain a permanent
16 conservatorship which issued on September 18, 2013. See Dkt. Nos. 39-40, 49. The United
17 States’ motion to dismiss the tort claims is thus based on plaintiff’s delay in securing a
18 conservatorship and the argument that the conservatorship currently in place is not
19 sufficient for the purposes of this litigation. Dkt. Nos. 41 at 6; 50 at 5-7. The Court
20 addresses the adequacy of the conservatorship in a separate part of this order. For the
21 purposes of the motion to dismiss the tort claims, however, the Court is not persuaded that
22 plaintiff’s claims should be barred based on such technical defects.
23

In light of the fact that the action was commenced within the deadline, providing the

24 United States with notice of the claims, the absence of prejudice to the United States, the
25 lack of dispute that plaintiff has a mental disability, and the lack of any evidence that the
26 delay was in bad faith, the Court finds that plaintiff has been diligent in pursuing his rights
27 under the circumstances. Accordingly, the Court finds that equitable tolling is warranted to
28 relieve plaintiff from the injustice that would result if his claims were barred due to his
Case No. 13-cv-01490 NC
ORDER ON MOTIONS TO DISMISS

24

1 failure to secure a legally sufficient conservatorship within the six-month filing deadline.
2 C.

Plaintiff’s Capacity to Sue

3

The Court’s conclusion that plaintiff’s possible lack of capacity to sue does not

4 necessarily render his claims untimely under 28 U.S.C. § 2401(b) of the FTCA does not end
5 the inquiry into the capacity issue. The Court must still determine whether plaintiff is
6 incompetent for the purposes of this action due to his mental disability, and if he is, whether
7 he has a “duly appointed representative” for the purpose of pursuing this action, or whether
8 it is appropriate to appoint a guardian ad litem to protect plaintiff’s interests as
9 contemplated by Federal Rule of Civil Procedure 17.
10

Federal Rule of Civil procedure 17(b)(1) provides that, for an individual who is not

11 acting in a representative capacity, the capacity to sue is determined by the law of the
12 individual’s domicile, here, California. Fed. R. Civ. P. 17(b)(1); see Dkt. No. 19 ¶ 5. Rule
13 17(c) further provides that a minor or incompetent person may sue with a representative
14 such as a general guardian, a committee, a conservator, or a like fiduciary. Fed. R. Civ. P.
15 17(c)(1). A minor or incompetent person without a duly appointed representative may sue
16 by a next friend or by a guardian ad litem. Fed. R. Civ. P. 17(c)(2). “The court must
17 appoint a guardian ad litem—or issue another appropriate order—to protect a minor or
18 incompetent person who is unrepresented in an action.” Id. Rule 17(c) “requires a court to
19 take whatever measures it deems proper to protect an incompetent person during litigation.
20 Although the court has broad discretion and need not appoint a guardian ad litem if it
21 determines the person is or can be otherwise adequately protected, it is under a legal
22 obligation to consider whether the person is adequately protected.” United States v. 30.64
23 Acres of Land, 795 F.2d 796, 805 (9th Cir. 1986) (citation omitted).
24

Similarly, under California law, “[w]hen a minor, an incompetent person, or a person

25 for whom a conservator has been appointed is a party,” that person must appear either by a
26 guardian or conservator of the estate or by a guardian ad litem. Cal. Civ. Proc. Code § 372.
27 “In California, a party is incompetent if he or she lacks the capacity to understand the nature
28 or consequences of the proceeding, or is unable to assist counsel in the preparation of the
Case No. 13-cv-01490 NC
ORDER ON MOTIONS TO DISMISS

25

1 case.” Golden Gate Way, LLC v. Stewart, No. 09-cv-04458 DMR, 2012 WL 4482053, at
2 *2 (N.D. Cal. Sept. 28, 2012) (citing In re Jessica G., 93 Cal. App. 4th 1180, 1186 (2001);
3 Cal. Civ. Proc. Code § 372; In re Sara D., 87 Cal. App. 4th 661, 666-67 (2001)); Elder4 Evins v. Casey, No. 09-cv-05775 SBA (LB), 2012 WL 2577589, at *2 (N.D. Cal. July 3,
5 2012). “A guardian ad litem may be appointed for an incompetent adult only (1) if he or
6 she consents to the appointment or (2) upon notice and hearing.” Golden Gate Way, 2012
7 WL 4482053, at *3 (citing Jessica G., 93 Cal. App. 4th at 1187-88). “The obligation of the
8 court to appoint a guardian ad litem pursuant to Rule 17(c) does not arise until after a
9 determination of incompetence has been made by the court in which the issue is raised.”
10 Forte v. Cnty. of Merced, No. 11-cv-0318, 2013 WL 3282957, at *3 (E.D. Cal. June 27,
11 2013) (citing Ferrelli v. River Manor Health Care Ctr., 323 F.3d 196, 201 (2d Cir. 2003)).
The issue of plaintiff’s capacity here was discussed at the case management

12

13 conference held by the Court on September 4, 2013, and again during the hearing on the
14 pending motions to dismiss and further case management conference on October 30, 2013.
15 Dkt. Nos. 32, 48. Plaintiff’s counsel informed the Court and defendants that on June 27,
16 2013, plaintiff’s father, Vishnu Shankar, obtained a temporary conservatorship over
17 plaintiff, and that on September 18, 2013, the San Mateo Superior Court issued letters of
18 conservatorship and an order appointing Vishnu Shankar as plaintiff’s probate conservator.
19 See Dkt. No. 40. The June 27 document titled “Order Appointing Temporary Conservator”
20 states that Vishnu Shankar is appointed temporary conservator of the person and the estate
21 of Ryan Shankar, and that “[i]n addition to the powers granted by law, the temporary
22 conservator” is granted “[a]ll authority to make decisions related to the C 13 1490, Federal
23 Civil case in which conservatee is the Plaintiff.” Id. at 16-17 (emphasis added). The first
24 page of the document states “WARNING: THIS APPOINTMENT IS NOT EFFECTIVE
25 UNTIL LETTERS HAVE ISSUED.” Id. at 16. According to plaintiff’s brief on equitable
26 tolling, letters of conservatorship were not issued when the temporary conservatorship was
27 granted. Dkt. No. 49 at 2:8-20.
28 //
Case No. 13-cv-01490 NC
ORDER ON MOTIONS TO DISMISS

26

1

The September 18 letters of conservatorship and order of appointment state that

2 Vishnu Shankar is appointed “limited conservator” of the person and the estate of Ryan
3 Shankar. Dkt. No. 40 at 4-14. The letters and order grant Vishnu Shankar the following
4 powers under California Probate Code § 2351.5: (1) “[t]o fix the residence or specific
5 dwelling of the limited conservatee”; (2) “[t]o access the confidential records and papers of
6 the limited conservatee”; (3) “[t]To have the right to contract on behalf of the limited
7 conservatee”; (4) “[t]o have the power to give or withhold medical consent; and (5) “[t]o
8 have the power to make decisions concerning the education of the limited conservatee.” Id.
9 at 4, 6, 14. In addition, the letters and order provide that “[p]ursuant to the provisions of
10 California Probate Code Section 2591(p), the Conservator shall have full powers to collect
11 and compromise the claim of the Conservatee which pertains to [this action].” Id. at 4, 7,
12 11 (emphasis added). The order appointing conservator further states that “[p]ursuant to the
13 provisions of California Probate Code Section 2504, the Conservator . . . shall petition this
14 Court for approval of any settlement or compromise of the above-specified litigation.” Id.
15 at 11. Unlike the order appointing temporary conservator, the subsequent order appointing
16 limited conservator does not purport to give Vishnu Shankar the power to make all
17 decisions on behalf of plaintiff related to this case, but only “to compromise and collect”
18 plaintiff’s claim.
19

The United States asserts that the appointment of a conservator of the estate is an

20 adjudication that the conservatee lacks the legal capacity to enter into or make any
21 transaction that binds or obligates the conservatorship estate. Dkt. No. 41 at 8:13-15 (citing
22 Cal. Prob. Code § 1872). The conservatorship currently in place over plaintiff, however, is
23 a limited one. See Dkt. No. 40 at 8-14. Section 1872(b) states that, “[e]xcept as otherwise
24 provided in the order of the court appointing a limited conservator, the appointment does
25 not limit the legal capacity of the limited conservatee to enter into transactions or types of
26 transactions.” Probate Code § 1801(d) further provides that, while a “limited conservator of
27 the person or of the estate, or both, may be appointed for a developmentally disabled adult,”
28 “[t]he conservatee of the limited conservator shall not be presumed to be incompetent and
Case No. 13-cv-01490 NC
ORDER ON MOTIONS TO DISMISS

27

1 shall retain all legal and civil rights except those which by court order have been designated
2 as legal disabilities and have been specifically granted to the limited conservator.” Cal.
3 Prob. Code § 1801(d) (emphasis added). Thus, to the extent the United States contends that
4 plaintiff has been determined to be incompetent under California law, the Court does not
5 agree.
6

However, in light of the allegations of the complaint regarding plaintiff’s mental

7 disability and the representations of plaintiff’s counsel on the issue of plaintiff’s capacity to
8 sue, the Court concludes that a question exists whether plaintiff is competent and could
9 adequately protect himself. Furthermore, it appears that the limited conservatorship
10 currently in place does not empower plaintiff’s father to make all decisions related to this
11 action. Accordingly, by March 5, 2014, plaintiff’s counsel (1) must explain to plaintiff the
12 purpose and effect of a guardian ad litem appointment, see Jessica G., 93 Cal. App. 4th at
13 1188; (2) must file a statement informing the Court and the other parties about whether or
14 not plaintiff consents to the appointment of a guardian ad litem; and (3) if plaintiff consents
15 to the appointment, plaintiff’s counsel must file a request to appoint a guardian ad litem,
16 identifying the person who is proposed to serve as a guardian ad litem and explaining why
17 that person would be a suitable guardian ad litem. If plaintiff does not consent to the
18 appointment of a guardian ad litem, the Court will set deadlines for briefing and a hearing
19 on the issue of whether plaintiff is incompetent within the meaning of Federal Rule of Civil
20 Procedure 17(c) and whether plaintiffs’ interests in this action are adequately protected.
IV. CONCLUSION

21
22

The Court grants in part and denies in part the federal defendants’ motion to dismiss

23 the first amended complaint as follows:
24

1.

against the federal defendants is dismissed with prejudice.

25
26

2.

Plaintiff’s second claim (for violation of § 504 of the Rehabilitation Act)
against the federal defendants is dismissed with leave to amend.

27
28

Plaintiff’s first claim (for violations of Title II and Title III of the ADA)

3.

Plaintiff’s third, fourth, and fifth claims (state law tort claims) against the

Case No. 13-cv-01490 NC
ORDER ON MOTIONS TO DISMISS

28

1

federa defendant are dismi
al
ts
issed with leave to ame
end, and wi leave to
ith

2

substit the United States as a defend
tute
a
dant.

3

4.

The fe
ederal defen
ndants’ requ to dism defenda Does 1
uest
miss
ants
1-10 is deni
ied
withou prejudice
ut
e.

4
5

5.

6

Pl
laintiff has until March 5, 2014, to file a seco amende complain curing th
u
h
o
ond
ed
nt
he

The re
eferences in the first am
n
mended com
mplaint to “
“others” are stricken.
e

d
n
7 defects described in this order.

8

Th United States’ motion to dismi the tort c
he
S
iss
claims is de
enied.

9

By March 5, 2014, plain
y
ntiff’s couns must file a stateme regardin plaintiff’s
sel
ent
ng
s

ointment of a guardian ad litem as set forth in this order
s
n
r.
10 consent to the appo
0

11
1

IT IS SO OR
T
RDERED.

12
2

Date: Februa 6, 2014
ary

13
3

____
__________
__________
_____
Nath
hanael M. C
Cousins
Unit States M
ted
Magistrate J
Judge

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15
5
16
6
17
7
18
8
19
9
20
0
21
1
22
2
23
3
24
4
25
5
26
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Case No. 13-cv-0149 NC
90
ORDER ON MOTIO
R
ONS TO DIS
SMISS

29