Goggin v. Enterprise Leasing Company-West, LLC

Filing 34

ORDER granting in part ECF No. #4 Motion to Dismiss as to plaintiff's claim for permissive use; plaintiff shall file his amended complaint on or before 07/11/2017; denying without prejudice ECF No. #29 Enterprise's Motion for Leave to supplement; granting ECF No. 30 Motion to Seal Exhibit 2 to the Motion to Supplement ECF No. 30 . Signed by Judge Howard D. McKibben on 06/28/2017. (Copies have been distributed pursuant to the NEF - KW) Modified on 6/28/2017 to correct typo (KW).

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ROBERT M. GOGGIN,

)
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Plaintiff,
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)
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vs.
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ENTERPRISE LEASING COMPANY-WEST, )
LLC, a Delaware Corporation; ABC )
CORPORATIONS I-X, inclusive,
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BLACK AND WHITE COMPANIES, and
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DOES I-XX, inclusive,
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Defendants.
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_________________________________ )

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3:17-cv-00262-HDM-VPC
ORDER

Before the court is defendant Enterprise Leasing Company-West,

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LLC’s (“Enterprise”) motion to dismiss the amended complaint.

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No. 4).

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and Enterprise replied (ECF No. 21).

(ECF

Plaintiff Robert M. Goggin (“plaintiff”) responded (ECF 15)

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This action arises from an automobile accident in which plaintiff

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was struck by a vehicle driven by James Sidney Proctor (“Proctor”).

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Proctor crossed all lanes of traffic, drove onto a sidewalk, and hit

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plaintiff as he was jogging.

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harm.

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Plaintiff

Plaintiff suffered substantial bodily

Enterprise owned the vehicle and rented it to Proctor.
brought

two

claims

against
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Enterprise

in

the

amended

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complaint, one based on negligence and one based on permissive use.

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The first amended complaint alleges that at the time “defendants

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supplied and entrusted the automobile to Proctor, it knew or in the

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exercise of reasonable care should have known that Proctor did not

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have a valid Nevada driver’s license, and that he was an incompetent

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and unfit driver and would create an unreasonable risk of injury to

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persons and property on the public streets and highways.”

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1-2 at ¶ 10).

(ECF No.

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Enterprise moves to dismiss the amended complaint pursuant to

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Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim.

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In considering a motion to dismiss for failure to state a claim under

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Federal Rule of Civil Procedure 12(b)(6), the court must accept as

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true all material allegations in the complaint as well as all

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reasonable inferences that may be drawn from such allegations.

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Ltd. v. Stroh, 205 F.3d 1146, 1150 (9th Cir. 2000).

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of the complaint also must be construed in the light most favorable

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to the nonmoving party.

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(9th Cir. 2000).

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12(b)(6) is to test the legal sufficiency of the complaint.

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v. Block, 250 F.3d 729, 732 (9th Cir. 2001).

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motion only if it is certain that the plaintiff will not be entitled

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to relief under any set of facts that could be proven under the

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allegations of the complaint.

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F.3d 336, 338 (9th Cir. 1996).

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LSO,

The allegations

Shwarz v. United States, 234 F.3d 428, 435

The purpose of a motion to dismiss under Rule
Navarro

The court can grant the

Cahill v. Liberty Mut. Ins. Co., 80

Enterprise argues that the amended complaint fails to contain

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sufficient

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Specifically, Enterprise asserts that plaintiff has not pled a duty

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or a breach of that duty.

facts

to

support

a

negligent

entrustment

claim.

Additionally, Enterprise argues that it
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“could have complied with its statutory requirements [under Nevada

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law] without learning that the license was invalid.”

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4).

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negligent

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Enterprises’s motion largely seeks detailed factual allegations that

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are not required by Twombly or Iqbal.

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dismiss the negligent entrustment claim is denied.

(ECF No. 4 at

Plaintiff’s amended complaint states a plausible claim for
entrustment.

In

so

deciding,

the

court

notes

that

Accordingly, the motion to

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Enterprise also argues that the amended complaint fails to

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contain sufficient facts to support a claim for permissive use as

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“there is no recognized cause of action for ‘permissive use’ in

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Nevada.”

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authority in support of his claim for permissive use and failed to

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respond to Enterprise’s motion to dismiss this claim.

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Local Rule 7-2(d), this failure constitutes a consent to the dismissal

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of the claim. As such, the court dismisses plaintiff’s permissive use

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claim.

(Id. at 5).

Plaintiff failed to provide any points and

Pursuant to

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Plaintiff seeks leave to amend his complaint to add a claim for

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a violation of NRS 483.610(1), which requires rental car companies to

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rent vehicles only to individuals that are duly licensed.

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provides that leave to amend should be “freely” given “when justice

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so requires.”

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grant leave to amend, a court considers the following factors: (1) bad

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faith, (2) undue delay, (3) prejudice to the opposing party, (4)

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futility of amendment, and (5) whether the plaintiff has previously

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amended the complaint.

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Cir. 2004).

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is clear, upon de novo review, that the complaint could not be saved

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by amendment.’”

Fed. R. Civ. P. 15(a)(2).

Rule 15(a)

In determining whether to

Johnson v. Buckley, 356 F.3d 1067, 1077 (9th

“‘Dismissal without leave to amend is improper unless it

Gompper v. VISX, Inc., 298 F.3d 893, 898 (9th Cir.
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2002) (quoting Polich v. Burlington N., Inc., 942 F.2d 1467, 1472 (9th

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Cir. 1991)). Because Enterprise does not argue that leave to amend

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would be futile, the court will allow the amendment.

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Accordingly, the motion to dismiss (ECF No. 4) is granted in part

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as to plaintiff’s claim for permissive use.

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amended complaint on or before July 11, 2017. Enterprise’s motion for

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leave to supplement (ECF No. 29) is denied without prejudice.

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motion to seal Exhibit 2 to the motion to supplement (ECF No. 30) is

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granted.

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IT IS SO ORDERED.

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Plaintiff shall file his

DATED: This 28th day of June, 2017.

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____________________________
UNITED STATES DISTRICT JUDGE

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The