United States District Court, D. Arizona
HONORABLE SUSAN M. BRNOVICH UNITED STATES DISTRICT JUDGE.
before the Court is Defendant AAA Mobility Specialists,
LLC's Motion to Dismiss (Doc. 10). Plaintiff Elise Kinsey
filed a response (Doc. 22), and Defendant AAA Mobility
Specialists, LLC (“AAA”) filed a reply (Doc. 26).
The Court has now considered the pleadings and relevant case
law. AAA moves to dismiss the claims against them under
Federal Rule of Civil Procedure 12(b)(2) for lack of personal
jurisdiction, Rule 12(b)(5) for insufficient service of
process, and Rule 12(b)(6) for failure to state a claim.
initiated this action on November 6, 2018, by filing her
Complaint in the Superior Court of Arizona in Maricopa
County. (Doc. 1-3 at 3). Service was executed on November 21,
2018, on the Department of Veteran Affairs. There is no proof
of service on AAA. On February 8, 2019, the United States
noticed removal of this matter to the United States District
Court for the District of Arizona. (Doc. 1).
in her Complaint, alleges problems with an electric
wheelchair. She said the problems began in January 2018
“when chair spun out as plaintiff ascended up a metal
ramp. Plaintiff[']s right foot became wedged under ramp
and chair.” (Doc. 1-3 ¶ 5). She then proceeded to
call the VA for a chair evaluation. AAA Mobility sent
technicians to evaluate the chair in April 2018. (Doc. 1-3
¶ 6). She alleges that the technicians found the
following: “bent large right tire, bolt missing from rt
side suspension, worn wheel.” (Doc. 1-3 ¶ 6).
Plaintiff stated that Donna, from VA Rehab, would not approve
repairs until she made her own evaluation, which was
scheduled for July 25, 2018. (Doc. 1-3 ¶ 7). The
suspension on both sides of the chair failed before
Donna's evaluation. (Doc. 1-3 ¶ 8). On July 11,
2018, the chair lifted and slammed plaintiffs left foot into
bus gate while she was boarding a bus. (Id.).
Plaintiff suffered a broken toe as a result. (Id.)
At her meeting with Donna, it was agreed that a new scooter
would be ordered. (Doc. 1-3 ¶ 9). When Plaintiff
returned to the VA to pick up the scooter, she was told the
scooter disappeared. (Doc. 1-3 ¶ 12). Plaintiff says
that another scooter was ordered and was supposed to be
delivered two months later but no delivery was ever made.
(Id.). She also alleges that there is a dispute
about whether the new scooter was a three-wheel scooter or a
four-wheel scooter. (Doc. 1-3 ¶ 15).
stated that Claim 1 is supported by the Federal Tort Claim
Acts, Culpable Negligence, and Professional
Negligence/malpractice. (Doc. 1-3 at 5). She stated that
Claim 2 is supported by Breach of Contract, NE Code 44-2810
and 13-302. (Doc. 1-3 at 5).
Failure to State a Claim
survive a Rule 12(b)(6) motion for failure to state a claim,
a complaint must meet the requirements of Rule 8(a)(2). Rule
8(a)(2) requires a “short and plain statement of the
claim showing that the pleader is entitled to relief, ”
so that the defendant has “fair notice of what the . .
. claim is and the grounds upon which it rests.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
Dismissal under Rule 12(b)(6) “can be based on the lack
of a cognizable legal theory or the absence of sufficient
facts alleged under a cognizable legal theory.”
Balistreri v. Pacifica Police Dep't, 901 F.2d
696, 699 (9th Cir. 1988). A complaint that sets forth a
cognizable legal theory will survive a motion to dismiss if
it contains sufficient factual matter, which, if accepted as
true, states a claim to relief that is “plausible on
its face.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Twombly, 550 U.S. at 570).
Facial plausibility exists if the pleader sets forth
“factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. “Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Id. Plausibility does not equal “probability,
” but requires “more than a sheer possibility
that a defendant has acted unlawfully.” Id.
“Where a complaint pleads facts that are ‘merely
consistent' with a defendant's liability, it
‘stops short of the line between possibility and
plausibility of entitlement to relief.'”
Id. (quoting Twombly, 550 U.S. at 557).
party does not need to plead specific legal theories in the
complaint, as long as the opposing party receives notice as
to what is at issue in the lawsuit.” Elec. Constr.
& Maint. Co. v. Maeda Pac. Corp., 764 F.2d 619, 622
(9th Cir.1985) (citing Am. Timber & Trading Co. v.
First Nat'l Bank of Or., 690 F.2d 781, 786 (9th Cir.
1982)). “The complaint should not be dismissed merely
because plaintiff's allegations do not support the legal
theory he intends to proceed on, since the court is under a
duty to examine the complaint to determine if the allegations
provide for relief on any possible theory.” Pruitt
v. Cheney, 963 F.2d 1160, 1164 (9th Cir. 1991),
amended (May 8, 1992) (quoting 5A C. Wright & A.
Miller, Federal Practice and Procedure § 1357
at 336-37 (1990)). Furthermore, “[a] document filed
pro se is ‘to be liberally construed,' and
‘a pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.'” Rivera v.
Coventry Health & Life Ins. Co., No.
CV-15-02213-PHX-GMS, 2016 WL 3548763, at *2 (D. Ariz. June
30, 2016) (quoting Erickson v. Pardus, 551 U.S. 89,
94 (2007)). Courts should “continue to construe pro
se filings liberally when evaluating them under
Iqbal.” Hebbe v. Pliler, 627 F.3d
338, 342 (9th Cir. 2010). In ruling on a Rule 12(b)(6) motion
to dismiss, the well-pled factual allegations are taken as
true and construed in the light most favorable to the
nonmoving party. Cousins v. Lockyer, 568 F.3d 1063,
1067 (9th Cir. 2009).
Insufficient Service of Process
12(b)(5) allows a party to move to dismiss claims against it
for insufficient service of process. Fed R. Civ. P. 12(b)(5).
“A federal court is without personal jurisdiction over
a defendant unless the defendant has been served in
accordance with Fed.R.Civ.P. 4.” Travelers Cas.
& Sur. Co. of Am. v. Brenneke, 551 F.3d 1132, 1135
(9th Cir. 2009) (citation omitted). While “Rule 4 is a
flexible rule that should be liberally construed so long as a
party receives sufficient notice of the complaint[, ]”
Whidbee v. Pierce Cty., 857 F.3d 1019, 1023 (9th
Cir. 2017), “neither actual notice nor simply naming
the defendant in the complaint will provide personal
jurisdiction” absent substantial compliance with its
requirements. Benny v. Pipes, 799 F.2d 489, 492 (9th
Cir. 1986). The serving party bears the burden of
establishing the validity of service. Brockmeyer v.
May, 383 F.3d 798, 801 (9th Cir. 2004).
to trial, a defendant may move to dismiss the complaint for
lack of personal jurisdiction. Data Disc, Inc. v. Systems
Tech. Assocs., Inc., 557 F.2d 1280, 1285 (9th Cir.
1977); Fed.R.Civ.P. 12(b)(2). Plaintiffs bear the burden of
establishing personal jurisdiction. Ziegler v. Indian
River Cty., 64 F.3d 470, 473 (9th Cir. 1995). Where the
motion is based on written materials rather than an
evidentiary hearing, “the plaintiff need only make a
prima facie showing of jurisdictional facts.” Sher
v. Johnson, 911 F.2d 1357, 1361 (9th Cir. 1990). In
determining whether the plaintiff has met this burden,
uncontroverted allegations in the plaintiff's complaint
must be taken as true, and “conflicts between the facts
contained in the parties' affidavits must be ...