Watts v. Starbucks Corporation et al
MEMORANDUM DECISION AND ORDER granting in part and denying in part 17 Starbucks' Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 18 Watts' Motion for Leave to File. Watts shall file a Second Amended Complaint that complies with the above decision within fourteen days of the issuance of this Order. Signed by Judge David C. Nye. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
Case No. 2:17-cv-00272-DCN
MEMORANDUM DECISION AND
STARBUCKS CORPORATION and
The Court has before it two interrelated Motions. First, Defendant Starbucks
Corporation has filed a Motion to Dismiss Pursuant to Federal Rule of Civil Procedure
12(b)(6) and Idaho Code section 6-1604. Dkt. 17. Second, Plaintiff Danny Watts has filed
a Motion for Leave to File a Second Amended Complaint. Dkt. 18.
Watts asserts that an employee at a Starbucks in Ponderay, Idaho, served him
Urnex, a cleaning chemical, in his coffee cup on or about July 4, 2015. Watts ingested the
chemical, believing it was the coffee he had ordered. Watts alleges that his ingestion of
the chemical caused him to suffer severe physical injury and pain that lasted for months.
Based on these events, Watts filed the current suit on June 27, 2017. On August
10, 2017, Watts filed an Amended Complaint in which he asserted five causes of action:
MEMORANDUM DECISION AND ORDER –1
(1) negligence; (2) negligent supervision; (3) negligent training; (4) respondent superior;
and (5) violation of the Idaho Food Code. Dkt. 7. Among other things, Watt requested
general and special damages exceeding $500,000. Id. at 13. Watt also “reserved” his right
to amend his Amended Complaint to seek punitive damages and “reserved” his right to
“seek leave of the court to lift the cap on non-economic damages.” Id. at 10–12.
On October 20, 2017, Starbucks filed the pending Motion to Dismiss. Dkt. 17. In
this Motion, Starbucks asks the Court to dismiss with prejudice Watt’s fourth and fifth
causes of action and to strike any reference to punitive damages in the Complaint. Along
with his response, Watts filed a Motion for Leave to File an Amended Complaint. Dkt.
18. In this Motion, Watts seeks to fix some of the problems Starbucks identified in his
original Complaint. After these motions were fully briefed, one of the parties filed a
request for reassignment to a district judge. Accordingly, the Court reassigned this case to
the undersigned on February 27, 2018. Dkt. 29.
III. LEGAL STANDARD
A. Motion to Dismiss
Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss a claim if the
plaintiff has “fail[ed] to state a claim upon which relief can be granted.” “A Rule 12(b)(6)
dismissal may be based on either a ‘lack of a cognizable legal theory’ or ‘the absence of
sufficient facts alleged under a cognizable legal theory.’” Johnson v. Riverside
Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008) (citation omitted). Federal Rule
of Civil Procedure 8(a)(2) requires a complaint to contain “a short and plain statement of
the claim showing that the pleader is entitled to relief,” in order to “give the defendant
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fair notice of what the . . . claim is and the grounds upon which it rests.” See Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 554 (2007). “This is not an onerous burden.” Johnson,
534 F.3d at 1121. A complaint “does not need detailed factual allegations,” but it must set
forth “more than labels and conclusions, and a formulaic recitation of the elements.”
Twombly, 550 U.S. at 555. The complaint must also contain sufficient factual matter to
“state a claim to relief that is plausible on its face.” Id. at 570. In considering a Rule
12(b)(6) motion, the Court must view the “complaint in the light most favorable to” the
claimant and “accept all well-pleaded factual allegations as true, as well as any
reasonable inference drawn from them.” Johnson, 534 F.3d at 1122.
B. Motion for Leave to File an Amended Complaint
Under Federal Rule of Civil Procedure 15(a), a party may amend its pleading once
“as a matter of course” before a responsive pleading is served. After that, a plaintiff may
amend the complaint only with the written consent of the opposing party or with leave of
the court. Id.; see also DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 185 (9th Cir.
1987). However, Rule 15 also instructs the court to grant leave to amend “when justice so
requires.” Nevertheless, “[a] district court . . . may . . . deny leave to amend due to undue
delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the opposing party
by virtue of allowance of the amendment, and futility of amendment.” Zucco Partners,
LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009) (internal quotation marks and
MEMORANDUM DECISION AND ORDER –3
“An amendment is futile when ‘no set of facts can be proved under the amendment
to the pleadings that would constitute a valid and sufficient claim or defense.’” Missouri
ex rel. Koster v. Harris, 847 F.3d 646, 656 (9th Cir. 2017) (quoting Miller v. Rykoff–
Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988)). “When a motion to amend is opposed on
the grounds that amendment would be futile, the standard of review in considering the
motion is akin to that undertaken by a court in determining the sufficiency of a complaint
which is challenged for failure to state a claim under the Federal Rules of Civil
Procedure, Rule 12(b)(6).” Arbon Valley Solar LLC v. Thomas & Betts Corp., No. 4:16cv-00070-DCN, 2017 WL 5613009 (D. Idaho Nov. 21, 2017) (quoting Doe v. Nevada,
356 F. Supp. 2d 1123, 1125 (D. Nev. 2004)).
A. Motion to Dismiss
Starbuck’s Motion to Dismiss is easily resolved as the parties largely agree. First,
Watts agrees with Starbucks that “Count IV of the Amended Complaint should be
dismissed with prejudice because respondeat superior is not a separate cause of action in
itself.” Dkt. 19, at 3 (citing Bonner v. Alderson, No. CV02-248-S-LMB, 2005 WL
2333829, at *19 (D. Idaho Sept. 22, 2005) (“‘Vicarious liability’ or ‘respondeat superior’
is not a cause of action in itself, but is a means of assigning liability to Union Pacific for
the actions of Bonner as to the other common law causes of action.”). Because the parties
agree, further analysis is unnecessary and the Court will dismiss this claim with
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Second, Watts also appears to agree with Starbucks that “Count V of the Amended
Complaint should be dismissed with prejudice because the Idaho Food Code does not
provide a private cause of action.” Id. at 4. Instead, Watts seeks to amend his Amended
Complaint to reformulate this claim as a negligence per se claim in which the Idaho Food
Code created the applicable standard of care. Because of Watts’ apparent agreement that
the Idaho Food Code, standing alone, does not create a private cause of action and his
expressed desire to transform this claim into a negligence per se claim, the Court will
dismiss this claim with prejudice. Whether Watts can assert a negligence per se claim
based on the Idaho Food Code is a separate issue that the Court will address in the next
Finally, Starbucks asks this Court to dismiss without prejudice “Watt’s claim for
punitive damages” and strike “the punitive damages allegations contained in the
Amended Complaint . . . because Watts has failed to comply with Idaho Code § 6-1604.”
Dkt. 17-1, at 8.
Because this case is before the court based on diversity jurisdiction, Idaho Code
section 6–1604(2) applies. See Windsor v. Guarantee Trust Life Ins. Co., 684 F. Supp.
630, 633 (D. Idaho 1988) (holding Idaho Code section 6–1604(2) is substantive in nature
and therefore controlling in federal court in a diversity case). “Under Section 6–1604(2),
a party cannot make a claim for punitive damages in its prayer for relief; rather, the claim
must be made by a pretrial motion to amend.” Doe v. Cutter Biological, a Div. of Miles
Inc., 844 F. Supp. 602, 610 (D. Idaho 1994). Specifically, Section 6–1604(2) provides as
MEMORANDUM DECISION AND ORDER –5
[A] party may, pursuant to a pretrial motion and after hearing before the
court, amend the pleadings to include a prayer for relief seeking punitive
damages. The court shall allow the motion to amend the pleadings if the
moving party establishes at such hearing a reasonable likelihood of proving
facts at trial sufficient to support an award of punitive damages.
Idaho Code § 6–1604(2).
The Court disagrees with Starbucks’ characterization of Watts’ reservation of his
right to seek punitive damages later in this case. First, this reservation is not a “claim for
punitive damages.” Second, the Court does not see how Watts has failed to comply with
Idaho Code. His Amended Complaint does not “contain a prayer for relief seeking
punitive damages.” See id. Even though Watts did not need to reserve his right to seek
punitive damages later, the fact that he did so was not improper. Watts is “the master of
his complaint,” Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009), and,
accordingly, he will be permitted to include statements which are not prohibited, even if
they are unnecessary. The Court will therefore deny the Motion to Dismiss as it relates to
Watts’ reservation of the right to seek punitive damages.
B. Motion for Leave to Amend
Starbucks argues the Court should not permit Watts to amend his Amended
Complaint to assert his negligence per se claim because this claim would not survive a
motion to dismiss for two reasons: (1) “negligence per se is not properly pleaded as a
separate cause of action” and (2) the duty a Starbucks employee allegedly breached “does
not directly correspond with the duty set forth in Idaho Code.” The Court addresses each
of these arguments in turn.
1. Whether Watts can assert negligence per se as a separate cause of action
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Starbucks argues that the Court should dismiss Watts’ negligence per se claim
because “he should not be permitted to recover twice for a single underlying tort.” Dkt.
23, at 6. The Court acknowledges that “[n]egligence per se is simply one manner of
proving a common law negligence claim.” Steed v. Grand Teton Council of the Boy
Scouts of Am., Inc., 172 P.3d 1123, 1128 (Idaho 2007). However, this fact does not
prevent Watts from pleading a negligence claim and a negligence per se claim in the
alternative. In fact, the Federal Rules of Civil Procedure allow such alternative pleadings.
Fed. R. Civ. P. 8(d)(2) (“A party may set out 2 or more statements of a claim . . .
alternatively or hypothetically, either in a single count . . . or in separate ones.”).
Moreover, Starbucks has failed to identify a single case in which an Idaho court, either
state or federal, has dismissed a negligence per se claim because the plaintiff had also
asserted a negligence claim. Finally, there are many cases in which Idaho courts have
considered complaints including both negligence and negligence per se claims. See
O’Guin v. Bingham Cty., 122 P.3d 308 (Idaho 2005); see also Millenkamp v. Davisco
Foods Int’l, Inc., 391 F. Supp. 2d 872, 875 (D. Idaho 2005). Idaho court have also
instructed juries on both negligence and negligence per se claims. See Munns v. Swift
Transp. Co., 58 P.3d 92, 94–96 (Idaho 2002); see also Obendorf v. Terra Hug Spray Co.,
188 P.3d 834, 838 (Idaho 2008). These prior cases, although not directly addressing the
question currently before the Court, indicate that such alterative pleadings are permissible
under Idaho law. Accordingly, the Court rejects this argument.
2. Whether the duty a Starbucks employee allegedly breached corresponds with
the duty set forth in Idaho Code
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Watts’ proposed Second Amended Complaint generally alleges that a Starbucks
employee violated section 7-201.11 of the Idaho Food Code. “The elements of a common
law negligence action are (1) a duty, recognized by law, requiring the defendant to
conform to a certain standard of conduct; (2) a breach of that duty; (3) a causal
connection between the defendant’s conduct and the resulting injury; and (4) actual loss
or damage.” O’Guin, 122 P.3d at 311 (quoting Black Canyon Racquetball Club, Inc. v.
Idaho First Nat’l Bank, N.A., 804 P.2d 900, 904–05 (Idaho 1991)). “[I]n Idaho, it is well
established that statutes and administrative regulations may define the applicable standard
of care owed, and that violations of such statutes and regulations may constitute
negligence per se.” Sanchez v. Galey, 112 Idaho 609, 733 P.2d 1234, 1242 (1986). “The
effect of establishing negligence per se through violation of a statute is to conclusively
establish the first two elements of a cause of action in negligence. . . .” Slade v. Smith’s
Mgmt. Corp., 808 P.2d 401, 408 (1991). “In order to replace a common law duty of care
with a duty of care from a statute or regulation, the following elements must be met: (1)
the statute or regulation must clearly define the required standard of conduct; (2) the
statute or regulation must have been intended to prevent the type of harm the defendant’s
act or omission caused; (3) the plaintiff must be a member of the class of persons the
statute or regulation was designed to protect; and (4) the violation must have been the
proximate cause of the injury.” O’Guin, 122 P.3d at 311.
MEMORANDUM DECISION AND ORDER –8
Section 7-201.11 of the Idaho Food Code provides as follows:
POISONOUS OR TOXIC MATERIALS shall be stored so they cannot
contaminate FOOD, EQUIPMENT, UTENSILS, LINENS, and
SINGLESERVICE and SINGLE-USE ARTICLES by:
(A) Separating the POISONOUS OR TOXIC MATERIALS by spacing or
(B) Locating the POISONOUS OR TOXIC MATERIALS in an area that is
not above FOOD, EQUIPMENT. UTENSILS, LINENS, and SINGLESERVICE or SINGLE-USE ARTICLES. This paragraph does not apply
to EQUIPMENT and UTENSIL cleaners and SANITIZERS that are
stored in WAREWASHING areas for availability and convenience if the
materials are stored to prevent contamination of FOOD, EQUIPMENT,
UTENSILS, LINENS, and SINGLESERVICE and SINGLE-USE
In sum, this code section provides that poisonous materials must be stored in a way so
that they cannot contaminate food or equipment.
Starbucks argues this code section does not apply in this case because Watts
alleges the Starbucks employee used Urnex in an improper way, not that the employee
stored Urnex in an improper way. Watts specifically alleges that a “coffee pot containing
. . . Urnex was on the service line with other coffee pots containing coffee.” Dkt. 18-1, at
4. This pot “was not tagged to insure that the poison would not be served.” Id. A “colorblind” Starbucks employee then “poured Urnex into a cup, put a lid on the same hiding
the fact it was a chemical and not Plaintiff’s cup of coffee and handed the cup to
Plaintiff.” Id., at 2, 4.
The Court finds Starbucks’ citation to Albertson v. Fremont County persuasive. In
that case, “Plaintiffs allege that Fremont County breached a duty by failing to properly
MEMORANDUM DECISION AND ORDER –9
maintain the snowmobile trail leading up to the highway.” 834 F. Supp. 2d 1117, 1138
(D. Idaho 2011). Plaintiff cited Idaho Code, which in general required locals units of
government to maintain “highways” in compliance with federal standards. Id. Because
the Idaho Code did not require maintenance of “snowmobile trail[s] leading up to the
highway,” the Court found the plaintiffs could not raise a claim for negligence per se
based on Idaho Code, which made federal standards only applicable to highways. Id.
Similarly here, “the duty alleged by Plaintiffs does not directly correspond with
the duty set forth in the Idaho [Food] Code.” Id. Plaintiff has alleged that a Starbucks
employee improperly used the Urnex, not that the employee improperly stored the Urnex.
Watts negligence per se claim is, therefore, not legally cognizable and would not survive
a motion to dismiss. Accordingly, the Court will not permit Watts to assert the negligence
per se claim in his Second Amended Complaint because such action would be futile.
Even though the Court will not permit Watts to assert his negligence per se claim
based on section 7-201.11 of the Idaho Food Code, the Court will permit the other
changes in Watts’ proposed Second Amended Complaint. Therefore, the Court will allow
Watts to file his Second Amended Complaint without the negligence per se claim.
IT IS HEREBY ORDERED:
1. Starbucks’ Motion to Dismiss (Dkt. 17) is GRANTED IN PART and DENIED IN
PART in accordance with the above decision.
2. Watts’ Motion for Leave to File Second Amended Complaint (Dkt. 18) is
GRANTED IN PART and DENIED IN PART in accordance with the above
MEMORANDUM DECISION AND ORDER –10
decision. Watts shall file a Second Amended Complaint that complies with the
above decision within fourteen days of the issuance of this Order.
DATED: March 12, 2018
David C. Nye
U.S. District Court Judge
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