Goodrich v. Callville Bay Resort & Marina et al

Filing 42

ORDER. IT IS ORDERED that 31 defendants motion to dismiss the cross claims be, and the same hereby is, GRANTED in part and DENIED in part. Signed by Judge James C. Mahan on 10/14/2020. (Copies have been distributed pursuant to the NEF - JQC)

Case 2:20-cv-00671-JCM-NJK Document 42 Filed 10/14/20 Page 1 of 6

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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SHAUN GOODRICH,

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Plaintiff(s),

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Case No. 2:20-CV-671 JCM (NJK)
ORDER

v.
GRG ENTERPRISES, LLC, et al.,

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Defendant(s).

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Presently before the court is defendant GRG Enterprises, LLC d/b/a Mackenzie River

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(“GRG”) motion to dismiss cross-claims. (ECF No. 31). Defendants Callville Bay Resort &

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Marina and Forever Resorts LLC (“the Callville defendants”) filed a response, (ECF No. 32), to
which GRG replied. (ECF No. 33).
I.

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Background
The instant case arises from plaintiff Shaun Goodrich’s (“Goodrich”) injuries that took

place at the businesses of GRG and the Callville defendants, approximately three months apart.

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(ECF No. 1). Plaintiff asserts separate claims against GRG and the Callville defendants for

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negligence.

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On March 11, 2018, plaintiff was a customer at MacKenzie River Pizza, Grill & Pub

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which is operated by GRG. (ECF No. 31). The chair he was seated in became “loose, slipped,

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tipped, rocked or wobbled.” (Id.). Plaintiff fell and was taken to the hospital by ambulance. (Id).

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Several months later, on May 28, 2018, plaintiff was walking on a dock, maintained and
owned by the Callville defendants, when he tripped over a loose power cord in a poorly lit area.
(ECF No. 1). Plaintiff fell off the dock, hitting his head on a wood log. (Id.). Plaintiff suffered a

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James C. Mahan
U.S. District Judge

head wound and aspirated a large amount of water. (Id). Because of this incident, plaintiff spent
three days in two different hospitals and, on December 16, 2019, he underwent cervical anterior
decompression and fusion surgery. (Id.).

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In March 2020, plaintiff initiated this suit in Nevada state court. (ECF No.1). Plaintiff

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brought claims of negligence against GRG and the Callville defendants. (Id.). Plaintiff alleges

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physical harm, pain, loss of mobility, economic losses, and adverse employment effects

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stemming from both incidents. (Id.).

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On April 10, 2020, the Callville defendants removed to this court. (ECF No. 1). The
Callville defendants answered plaintiff’s amended complaint and filed two cross-claims against
GRG: (1) Contribution and (2) Equitable Indemnity (ECF No. 14.). GRG answered the crossclaims on April 22, 2020. (ECF No. 15).

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On June 9, 2020, defendant GRG filed its instant motion to dismiss both cross-claims.
(ECF No. 31).
II.

Legal Standard

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Federal Rule of Civil Procedure 12(c) allows a party to move for judgment on the

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pleadings “[a]fter the pleadings are closed but within such time as not to delay the trial.” Rule

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12(c) is “functionally identical to Rule 12(b)(6) and . . . the same standard of review applies to

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motions brought under either rule.” Cafasso v. Gen. Dynamics C4 Sys., 637 F.3d 1047, 1055 n.4
(9th Cir. 2011) (internal citation and quotation omitted). Therefore, “[a] judgment on the
pleadings is properly granted when, taking all the allegations in the pleadings as true, the moving

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party is entitled to judgment as a matter of law.” Milne ex rel. Coyne v. Stephen Slesinger, Inc.,

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430 F.3d 1036, 1042 (9th Cir. 2005) (internal quotations and citations omitted). To proceed, a

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complaint must contain “sufficient factual matter, accepted as true, to state a claim to relief that

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is plausible on its face” may not be dismissed under Rules 12(b)(6) or 12(c). Ashcroft v. Iqbal,

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556 U.S. 662, 678 (2009) (internal citation and quotation omitted).

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A court may dismiss a complaint for “failure to state a claim upon which relief can be

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granted.” Fed. R. Civ. P. 12(b)(6). A properly pled complaint must provide “[a] short and plain

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statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2); Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require detailed
factual allegations, it demands “more than labels and conclusions” or a “formulaic recitation of

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the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation

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omitted).

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“Factual allegations must be enough to rise above the speculative level.” Twombly, 550

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U.S. at 555. Thus, to survive a motion to dismiss, a complaint must contain sufficient factual

James C. Mahan
U.S. District Judge

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matter to “state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (citation

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omitted).

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In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply

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when considering motions to dismiss. First, the court must accept as true all well-pled factual

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allegations in the complaint; however, legal conclusions are not entitled to the assumption of
truth. Id. at 678–79. Mere recitals of the elements of a cause of action, supported only by
conclusory statements, do not suffice. Id. at 678.

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Second, the court must consider whether the factual allegations in the complaint allege a

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plausible claim for relief. Id. at 679. A claim is facially plausible when the plaintiff’s complaint

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alleges facts that allow the court to draw a reasonable inference that the defendant is liable for

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the alleged misconduct. Id. at 678.
The Ninth Circuit addressed post-Iqbal pleading standards in Starr v. Baca, 652 F.3d

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1202, 1216 (9th Cir. 2011). The Starr court stated, in relevant part:

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First, to be entitled to the presumption of truth, allegations in a
complaint or counterclaim may not simply recite the elements of a
cause of action, but must contain sufficient allegations of
underlying facts to give fair notice and to enable the opposing
party to defend itself effectively. Second, the factual allegations
that are taken as true must plausibly suggest an entitlement to
relief, such that it is not unfair to require the opposing party to be
subjected to the expense of discovery and continued litigation.

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Id.
III.

Discussion
GRG moves to dismiss both cross-claims by the Callville defendants: (1) contribution

and (2) equitable indemnity. (ECF No. 31). With the well-pled factual allegations of the
pleadings accepted as true, the court dismisses only the cross-claim of equitable indemnity.

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As a preliminary matter, the Callville defendants argue that GRG’s motion to dismiss is

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untimely. (ECF No. 32). On April 22, 2020, GRG answered the Callville defendants’ cross-

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claims. (ECF No. 15). On June 9, 2020, GRG filed its instant motion to dismiss. (ECF. No. 31).

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A defendant must file its 12(b)(6) motion to dismiss before its first responsive pleading. See

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Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 954 (9th Cir. 2004). Although the Callville

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defendants are correct, this court will construe GRG’s instant motion to dismiss as a motion for

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James C. Mahan
U.S. District Judge

judgment on the pleadings. See id.

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A. Contribution

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In Nevada, to prevail on a claim for right to contribution, there must be “two or more

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persons [that] become jointly or severally liable in tort for the same injury to person or property

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of for the same wrongful death . . . even though judgment has not been recovered against all or

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any of them.” Nev. Rev. Stat. 17.225. Additionally, the right to contribution exists only for the
tortfeasor who paid a larger amount than their equitable share. Id. Lastly, a tortfeasor is not
permitted to recover contribution from any other tortfeasor, if it is in excess of what was
reasonable. Id.

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GRG argues that the Callville defendants’ contribution claim fails as a matter of law

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because GRG and the Callville defendants are “clearly successive tortfeasors and not joint

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tortfeasors.” (ECF No. 31). GRG argues that plaintiff Goodrich alleged “two separate causes of

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action, which stem from two different and distinct incidents.” (Id.). “Successive tortfeasors” is

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defined as two people or entities that produce acts “differing in time and place of commission as

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well in nature, [causing] produced two separate injuries [that] give rise to two distinct causes of

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action” Hansen v. Collet, 380 P.2d 301, 305 (Nev. 1963). “When tortfeasors are successive,
rather than joint tortfeasors, there can be no claim for contribution as a matter of law.” Republic
Silver State Disposal v. Cash, 2018 Nev. Dist. LEXIS 1314 (Nev. 2018).

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Defendant GRG makes the argument that the Callville defendants are successive

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tortfeasors, because these two incidents occurred on different days, at different times, and in

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different locations. (Id.). However, this court accepts the factual allegations in the amended

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complaint as true. See Rowe v. Educ. Credit Mgmt. Corp., 559 F.3d 1028, 1029-30 (9th Cir.

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2009).

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Here, the Callville defendants assert that the claim of contribution cannot be dismissed

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because, taken as true, the plaintiffs’ complaint uses the phrase “jointly and severally” multiple

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times throughout; therefore, it shows that defendants are joint tortfeasors and not successive.
(ECF No. 31). However, this statement by the Callville defendants is conclusory. (ECF No. 33).
“While legal conclusions can provide the framework for a complaint, they must be supported by

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factual allegations.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). This court will not consider this

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argument as the reasoning for the claim of contribution to proceed.

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This claim may proceed because both incidents created an indivisible injury. (ECF No.

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32). If the actions of the joint tortfeasors were separate and independent, but the actions “produce

James C. Mahan
U.S. District Judge

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an indivisible injury” they are entitled to pursue a claim of contribution. Discount Tire v. Fisher

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Sand & Gravel, 400 P.3d at 244. Even though GRG argues that the incidents were “two separate

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causes of action, which stem from two different and distinct incidents” taking the plaintiffs’

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allegations as true, there is no definitive evidence showing who is at fault for plaintiffs’ injuries.

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Id. The Callville defendants argue that in both incidents the plaintiff hit his head and further
discovery is needed in order “to determine the causation of the alleged collective damages and
cervical spine fusion surgery;” this further shows that one defendant cannot be definitively liable
for the plaintiffs’ injury. (Id.).

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A. Equitable Indemnity

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Equitable indemnity “allows a defendant to seek recovery from other potential

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tortfeasors.” Pack v. LaTourette, 277 P.3d 1246, 1249 (Nev. 2012). The claim is “generally

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available to remedy the situation in which the defendant, who has committed no independent

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wrong, is held liable for the loss of a plaintiff caused by another party.” Id. at 1248-49. If a party

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is actively negligent and has committed an independent wrong, “that party has no right to

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indemnity from other tortfeasors.” Id. at 1249. Furthermore, in order to establish indemnity, there
must be some nexus proven between the indemnitee and indemnitor. Rodriguez v. Primadonna
Co., LLC, 216 P.3d 793, 802.

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Here, plaintiffs’ complaint states the injuries he obtained from both incidents, thus

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serving as the nexus between the two parties. (ECF No. 31). However, plaintiff alleges the

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Callville defendants, in a separate cause of action, are liable for maintaining the dock in a

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negligent manner. (Id.). Thus, taking the allegations in plaintiff’s complaint as true, the Callville

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defendants were actively negligent and committed an independent wrong. (Id.). Therefore, the

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Callville defendants have no right to indemnity. Pack, 277 Nev. at 1249.
This court grants GRG’s motion to dismiss the claim of equitable indemnity. This court

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denies the Callville defendants’ request for leave to amend due to futility.
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James C. Mahan
U.S. District Judge

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IV.

Conclusion

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, and DECREED that defendants’ motion to

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dismiss the cross claims (ECF No. 31) be, and the same hereby is, GRANTED in part and

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DENIED in part.
DATED October 14, 2020.
__________________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
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