Thourot v. Tanuvasa et al
Filing
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ORDER GRANTING DEFENDANT CITY & COUNTY OF HONOLULU'S #7 MOTION TO DISMISS COMPLAINT FILED JANUARY 21, 2011 PURSUANT TO FRCP, RULE 12(b)(6): "On the basis of the foregoing, Defendant City and County of Honolulu's Motion to Dismiss Complaint Filed January 21, 2011 Pursuant to FRCP, Rule 12(b)(6), filed on February 11, 2011, is HEREBY GRANTED. The Court ORDERS Plaintiff to file his Amended Complaint by August 15, 2011. The Court CAUTIONS Plaintiff that, if he does not file an Amended Complaint by August 15, 2011, the Court will dismiss the claims against the City and County of Honolulu with prejudice.IT IS SO ORDERED." Signed by District JUDGE LESLIE E. KOBAYASHI on May 31, 2011. (bbb, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
RICHARD A. THOUROT,
)
)
Plaintiff,
)
)
vs.
)
)
ERIC TANUVASA AND CITY AND
)
COUNTY OF HONOLULU,
)
)
Defendants.
)
_____________________________ )
CIVIL NO. 11-00032 LEK-KSC
ORDER GRANTING DEFENDANT CITY & COUNTY OF HONOLULU’S
MOTION TO DISMISS COMPLAINT FILED
JANUARY 21, 2011 PURSUANT TO FRCP, RULE 12(b)(6)
Before the Court is Defendant City and County of
Honolulu’s (“Defendant” or “City”) Motion to Dismiss Complaint
Filed January 21, 2011 Pursuant to FRCP, Rule 12(b)(6)
(“Motion”), filed on February 11, 2011.
Plaintiff Richard
Thourot (“Plaintiff”) filed his memorandum in opposition on
April 19, 2011, and the City filed its reply on April 29, 2011.
This matter came on for hearing on May 16, 2011.
Appearing on
behalf of the City was Tracy Fukui, Esq., and appearing on behalf
of Plaintiff was Lawrence Kawasaki, Esq.
After careful
consideration of the Motion, supporting and opposing memoranda,
and the arguments of counsel, the City’s Motion is HEREBY GRANTED
for the reasons set forth below.
BACKGROUND
Plaintiff filed a Complaint against the City and
Eric Tanuvasa, individually, and in his official capacity as a
Honolulu Policy Department (“HPD”) police officer (“Tanuvasa”).
[Dkt. no. 1.]
Plaintiff brought this action “to redress the
deprivation under color of law . . . of rights privileges, and
immunities secured to Richard A. Thourot by the Fourth, Fifth,
Eighth, Ninth, and Fourteenth Amendments to the Constitution of
the United states, inter alia, and 42 U.S.C. § 1983, et seq.”
[Complaint at ¶ 1.]
The Complaint sets forth the following factual
allegations:
(9)
On or about February 7, 2009, Plaintiff was
residing with his girlfriend at the Island
Colony Condominium/Hotel located in Waikiki,
Honolulu, Hawaii.
(10) On the morning of February 7, 2009, Plaintiff
was awakened by his girlfriend and observed
Defendant Officer Eric Tanuvasa already had
entered his apartment.
(11) Plaintiff got out of bed and asked Defendant
Tanuvasa what was going on and why he was in
his home.
(12) As Plaintiff was talking to Defendant
Tanuvasa, for reasons unknown to Plaintiff,
Defendant Tanuvasa started repeatedly
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berating, pushing, grabbing, slapping,
punching, and kicking Plaintiff about his
body and face.
(13) Plaintiff then was placed under arrest by
other officers who had arrived and was
transported to the Honolulu Police
Department.
(14) Plaintiff did not at any time provoke,
invite, consent to, or otherwise allow or
permit Defendant Tanuvasa to assault and
berate him.
[Id. at ¶¶ 9-14.]
The Complaint includes four causes of action, none of
which have descriptive labels or refer to specific statutes or
common law claims.
Plaintiff’s first cause of action appears to
state a § 1983 claim and assault and battery claim against
Tanuvasa and the City.
[Id. at ¶¶ 19-20.]
The second cause of
action appears to be a state law negligent training claim.
Plaintiff alleges that “certain of the Doe Defendants failed
and/or refused to properly train, supervise, and/or discipline
police officers under their supervision and control thereby
proximately and directly causing the injuries to Plaintiff
complained of herein.”
[Id. at ¶ 22.]
The third cause of action
appears to be a state law negligence claim.
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[Id. at ¶ 24.]
Finally, Plaintiff’s fourth cause of action alleges that the
“individual Defendants acted herein maliciously, knowingly,
intentionally, willfully, and deliberately without regard for his
rights, interests, and well being, thereby proximately causing
the injuries herein.”
[Id. at ¶ 26.]
On February 11, 2011, the City filed the instant
Motion, seeking to dismiss all claims against it.
[Dkt. no. 7.]
Thereafter, on March 14, 2011, the Court approved the parties’
stipulation to dismiss some of the claims against the City,
including the § 1983 claims.
[Dkt. no. 16.]
According to the
stipulation, the following claims against the City remain:
(1) negligence (respondeat superior); (2) assault and battery
(respondeat superior); and (3) negligent training, supervision,
and discipline.
I.
[Id.]
The City’s Motion
The City seeks dismissal of all claims against it
pursuant to Federal Rule of Civil Procedure 12(b)(6).
The City
frames Plaintiff’s claims as brought under § 1983,1 and the
common law torts of “negligence, assault and battery, [and]
1
The City frames the Plaintiff’s first cause of action as
a § 1983 Monell claim, and argued that it must be dismissed
because: (1) the allegations are conclusory; and (2) any nonconclusory facts alleged fail to state a “plausible” claim for
relief against the City as required by Ashcroft v. Iqbal, 129 S.
Ct. 1937 (2009). To the extent the parties stipulated to the
dismissal of all state and federal constitutional claims against
the City, this portion of the Motion is moot.
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negligent training, supervision and/or discipline[.]”
[Mem. in
Supp. of Motion at 2.]
A.
Failure to Train, Supervise, and/or Discipline
With respect to Plaintiff’s second cause of action for
failure to train, supervise, and/or discipline, the City argues
that Plaintiff fails to state a claim under Ashcroft v. Iqbal,
129 S. Ct. 1937 (2009), because he fails to allege non-conclusory
facts that state a “plausible” as opposed to merely “possible”
claim against the City.
[Mem. in Supp. of Motion at 9.]
The
City asserts that Plaintiff’s allegations are legal conclusions
that are not afforded a presumption of truth, but are merely a
formulaic recitation of the elements of the claim.
According to
the City, Plaintiff fails to plead facts: (1) describing how the
City failed in its supervision, or identify the employee
requiring supervision; (2) identifying a specific training
program or how that program was deficient; or (3) identifying any
acts in which discipline was necessary, but not taken.
[Id.]
As to the negligent supervision claim, the City argues
Plaintiff fails to plead any facts establishing that Tanuvasa was
acting outside the course and scope of his employment, as
required by Dawkins v. City & County of Honolulu, Civ. No.
10–00086 HG–KSC, --- F. Supp. 2d ----, 2010 WL 5464880, at *11
(D. Hawai‘i, Dec. 30, 2010).
[Id. at 10.]
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B.
Respondeat Superior Claims
The City next attacks Plaintiff’s respondeat superior
claims, apparently as to “the state common law torts of
negligence and assault and battery in the first and third causes
of action.”
[Id.]
The City argues Plaintiff fails to state a
claim because: (1) the facts plead are insufficient to establish
respondeat superior; (2) the negligence claim is incompatible
with the allegations of assault and doctrine of conditional
privilege; and (3) Plaintiff fails to plead a recognized duty of
care.
[Id.]
First, the City asserts that Plaintiff fails to allege,
by facts or otherwise, that Tanuvasa was acting within the course
and scope of his employment, and that the City is not responsible
for the alleged negligence of its employees.
Although the
Complaint states that Tanuvasa was an HPD officer, it does not
describe in what capacity Tanuvasa entered Plaintiff’s apartment;
the City argues that there is no indication from the facts
alleged that Tanuvasa was there in his capacity as a police
officer, or in the course and scope of his employment.
[Id.]
Second, the City contends that Plaintiff’s negligence
claim is not “plausible” under Iqbal when viewed against his
assault and battery claim.
The City argues that these torts are
mutually exclusive because the willful, intentional conduct
supporting the assault and battery claim is incompatible with
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negligence because a willful act involves no negligence.
12-13.]
[Id. at
The City argues that, because Plaintiff failed to allege
facts stating a “plausible” claim against Tanuvasa, under the
doctrine of respondeat superior, he likewise failed to properly
plead negligence against the City.
II.
[Id.]
Plaintiff’s Memorandum in Opposition
In opposition, Plaintiff contests the City’s
application of the standard to be applied to motions brought
under Federal Rule of Civil Procedure 12(b)(6).
Plaintiff
asserts that for a complaint to survive a motion to dismiss, the
non-conclusory factual content, and reasonable inferences drawn
from that content, must be plausibly suggestive of a claim
entitling the plaintiff to relief and specific facts are not
necessary for pleadings to satisfy Federal Rule of Civil
Procedure 8(a)(2).
[Mem. in Opp. at 5 (citing Moss v. U.S.
Secret Service, 572 F.3d 962, 968-69 (9th Cir. 2009)).]
Plaintiff also emphasizes that Rule 8(a)(2) expressly authorizes
litigants to plead claims in the alternative or hypothetically.
[Id. at 4.]
Pointing to the factual allegations set forth in the
Complaint, Plaintiff argues that they are neither bald nor
conclusory, but are sufficiently detailed to give “fair notice to
the City of Plaintiff’s state law claims and fair opportunity to
defend against them.”
[Id. at 7.]
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In response to the City’s arguments regarding its
respondeat superior liability, Plaintiff states that “[i]f
Defendant Tanuvasa’s acts were within the scope and course of his
employment the City is subject to liability for the torts he
committed under the doctrine of respondeat superior.”
8.]
[Id. at 7-
Alternatively, if “Tanuvasa’s acts were outside the course
and scope of his employment the City is subject to liability for
failure to control him.”
[Id. at 8.]
Plaintiff attempts to
rebut the City’s claims that he failed to plead facts
establishing that Tanuvasa was acting outside the course and
scope of his employment by stating that the Federal Rules of
Civil Procedure permit alternative, hypothetical and inconsistent
pleadings.
[Id.]
III. The City’s Reply
In its reply, the City claims generally that
Plaintiff’s opposition fails to address the factual inadequacies
of his state law claims as plead.
A.
Negligent Training, Supervision, and/or Discipline
The City asserts that the Complaint contains a single
paragraph addressed to this cause of action (paragraph 22), and
that the allegation therein is a legal conclusion that is not
afforded the assumption of truth under Iqbal.
[Reply at 2.]
Further, the City argues that the Court cannot determine whether
Plaintiff states a “plausible” claim because there are no
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pertinent facts presented in the Complaint.
For example,
Plaintiff fails to identify a training program by the City, a
deficiency in the program, or any facts describing how the
deficiency is related to the injuries alleged.
[Id.]
In
addition to the factual deficiencies, the City points to
Complaint’s failure to allege that the City knew or should have
known of the opportunity for exercising control or
foreseeability.
[Id. at 3.]
It points to the holding in Otani
v. City and County of Hawai‘i, 126 F. Supp. 2d 1299, 1308 (D.
Hawai‘i 1998), that “[i]f an employer has not been put on notice
of the necessity for exercising a greater degree of control or
supervision over a particular employee, the employer cannot be
held liable as a matter of law.”
[Id.]
With respect to the course and scope of employment
element, the City argues that, regardless of the permissibility
of pleading in the alternative, Plaintiff has nevertheless failed
to allege that Tanuvasa was acting outside the scope of his
employment.
[Id. at 4.]
Moreover, Plaintiff must plead
nonconclusory facts in which it is “plausible” that Tanuvasa was
acting outside the course and scope of his employment.
B.
[Id.]
Respondeat Superior Claims
With respect to the sufficiency of the factual
allegations, the City argues that Plaintiff fails to plead
sufficient facts to push his theory of respondeat superior
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liability past “possible” to “plausible.”
[Id. at 5.]
As to the course and scope requirement, the City
asserts that Plaintiff fails to plead any facts alleging a
“purpose” by Tanuvasa to further the HPD’s business.
Plaintiff
pleads only that he woke up in his apartment, found Tanuvasa
there, and for reasons unknown, Tanuvasa assaulted him; the City
argues that these facts fail to indicate whether Tanuvasa was
acting with a purpose on behalf of HPD, or with a purpose on
behalf of himself.
[Id. at 5-6.]
STANDARD
Federal Rule of Civil Procedure 12(b)(6) permits a
motion to dismiss a claim for “failure to state a claim upon
which relief can be granted[.]”
“To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’”
Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007)); see also Weber v. Dep’t of
Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008).
This
tenet – that the court must accept as true all of the allegations
contained in the complaint – “is inapplicable to legal
conclusions.”
Iqbal, 129 S. Ct. at 1949.
Accordingly,
“[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”
(citing Twombly, 550 U.S. at 555).
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Id.
Rather, “[a] claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Twombly, 550 U.S. at 556).
Id. (citing
Factual allegations that only permit
the court to infer “the mere possibility of misconduct” do not
show that the pleader is entitled to relief.
Id. at 1950.
“Dismissal without leave to amend is improper unless it
is clear that the complaint could not be saved by any amendment.”
Harris v. Amgen, Inc., 573 F.3d 728, 737 (9th Cir. 2009)
(citation and quotation marks omitted).
“But courts have
discretion to deny leave to amend a complaint for futility[.]”
Johnson v. American Airlines, Inc., 834 F.2d 721, 724 (9th Cir.
1987) (citation and quotation marks omitted).
DISCUSSION
I.
Negligent Training, Supervision, and/or Discipline Claim
Plaintiff alleges in his second cause of action that
“Defendants failed and/or refused to properly train, supervise,
and/or discipline police officers under their supervision and
control thereby proximately and directly causing the injuries to
Plaintiff complained of herein.”
[Complaint at ¶ 22.]
The Court finds that Plaintiff’s allegations are not
supported by relevant factual allegations, but simply state a
legal conclusion.
For example, Plaintiff fails to plead facts
identifying how the City failed in its supervision, or
identifying any acts in which discipline was necessary, but not
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taken.
Further, to state a claim for negligent supervision or
failure to control under Hawai‘i law, a plaintiff must allege
that the employees who committed the wrongful acts were acting
outside the scope of their employment.
Pulawa v. GTE Hawaiian
Tel, 112 Hawai‘i 3, 18, 143 P.3d 1205, 1220 (2006).
Plaintiff
fails to do so here.
With respect to Plaintiff’s negligent supervision claim
and alternately plead theories, courts require inconsistent or
contradictory allegations to be set forth in a complaint.
A negligent supervision claim is mutually
exclusive with a claim based on respondeat
superior, because the latter requires that the
employee have acted within the scope of his
employment. See Wong–Leong v. Hawaiian Indep.
Refinery, Inc., 76 Hawai‘i 433, 879 P.2d 538,
543–44 (1994).
. . . .
Although Plaintiff’s negligent failure to
supervise claim is inconsistent with his false
arrest/respondeat superior claim, Plaintiff is
entitled to plead the former claim in the
alternative. See Fed. R. Civ. P. 8(d)(3) (“A
party may state as many separate claims or
defenses as it has, regardless of consistency.”);
Arthur v. U.S. By and Through Veterans Admin., 45
F.3d 292, 296 (9th Cir. 1995).
In order to state a claim for negligent
supervision, however, Plaintiff nevertheless must
allege that the police officers were acting
outside the scope of their employment. See
Pulawa, 143 P.3d 1205, 1220. Plaintiff must, in
other words, include contradictory allegations in
the Complaint.
Dawkins v. City of Honolulu, Civ. No. 10–00086 HG–KSC, --- F.
12
Supp. 2d ----, 2010 WL 5464880, at *11 (D. Hawai‘i Dec. 30,
2010).
Plaintiff has not included the necessarily contradicting
allegations, i.e., that a police officer was acting both outside
and within the scope of his or her employment.
The Court therefore GRANTS the Motion and DISMISSES
Plaintiff’s second cause of action for negligent training,
supervision, and/or discipline claim as to the City WITHOUT
PREJUDICE.
II
Respondeat Superior Claims
The Court next addresses Plaintiff’s causes of action
for negligence and assault and battery.
Both of these claims
against the City are brought under a respondeat superior theory
of liability.
A municipality such as the City is “subject to the
state’s tort laws in the same manner as any other private
tortfeasor may be liable for state law torts that its agents
committed.”
Kahale v. City & Cnty. of Honolulu, 104 Hawai‘i 341,
349, 90 P.3d 233, 241 (2004).
“[T]o recover under the respondeat superior theory, a
plaintiff must establish: 1) a negligent act of the employee, in
other words, breach of a duty that is the legal cause of
plaintiff’s injury; and 2) that the negligent act was within the
employee’s scope of employment.”
Wong-Leong v. Haw. Indep.
Refinery, Inc., 76 Hawai‘i 433, 438, 879 P.2d 538, 543 (1994).
Plaintiff fails to set forth facts or allegations that Tanuvasa
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was acting within the course and scope of his employment, and
therefore, fails to state a claim based on respondeat superior
liability.
For example, the Complaint is devoid of facts or
allegations regarding why Tanuvasa was in Plaintiff’s apartment,
why he allegedly assaulted Plaintiff, or whether he purported to
be acting on behalf of the City.
The Court therefore GRANTS the Motion and DISMISSES
Plaintiff’s negligence and assault and battery claims as to the
City WITHOUT PREJUDICE.
III. Dismissal Without Prejudice and Leave to Amend
At the May 16, 2011 hearing, Plaintiff’s counsel
acknowledged that the facts of the incident were not welldeveloped and that Plaintiff needed to conduct discovery in order
to clarify his claims against the City.
To the extent that this
Court has dismissed Plaintiff’s claims against the City without
prejudice, Plaintiff is granted leave to file an Amended
Complaint.
The Court therefore GRANTS Plaintiff until August 15,
2011 to file an Amended Complaint.
CONCLUSION
On the basis of the foregoing, Defendant City and
County of Honolulu’s Motion to Dismiss Complaint Filed
January 21, 2011 Pursuant to FRCP, Rule 12(b)(6), filed on
February 11, 2011, is HEREBY GRANTED.
The Court ORDERS Plaintiff
to file his Amended Complaint by August 15, 2011.
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The Court
CAUTIONS Plaintiff that, if he does not file an Amended Complaint
by August 15, 2011, the Court will dismiss the claims against the
City and County of Honolulu with prejudice.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, May 31, 2011.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
RICHARD A THOUROT V. ERIC TANUVASA AND CITY AND COUNTY OF
HONOLULU; CIVIL NO. 11-00032 LEK-KSC; ORDER GRANTING DEFENDANT
CITY AND COUNTY OF HONOLULU’S MOTION TO DISMISS COMPLAINT FILED
JANUARY 31, 2011 PURSUANT TO FRCP RULE 12(b)(6)
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