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Kinsey v. Department of Veterans Affairs

United States District Court, D. Arizona

September 4, 2019

Elise M Kinsey, Plaintiff,
v.
Department of Veterans Affairs, et al., Defendants.

          ORDER

          HONORABLE SUSAN M. BRNOVICH UNITED STATES DISTRICT JUDGE.

         Pending 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.

         I. BACKGROUND

         Plaintiff 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.[1] 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).

         Plaintiff, 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).

         Plaintiff 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).

         II. LEGAL STANDARD

         A. Failure to State a Claim

         To 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).

         “A 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).

         B. Insufficient Service of Process

         Rule 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).

         C. Personal Jurisdiction

         Prior 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 ...


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