ORDER IN RESPONSE TO DEFENDANT MOTION TO DISMISS - 1
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IN THE STATE OF RIDGEWAY
SUPERIOR COURT
NZ0T,
Plaintiff,
vs.
1UPSCOUT, et al.
Defendant
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Case No.: No. RSC-CV-2889
ORDER, IN PART, GRANTING DEFENDANTS MOTION
TO DISMISS
BACKGROUND
Plaintiff alleges that on May 17th, 2024, Plaintiff was present on foot in the
middle of the road near Sterling Heights Gun Club. At the same time, Plaintiff alleges
that Defendants were also present. Plaintiff then alleges that he was attacked by an
unnamed party who discharged a firearm at Plaintiff. Plaintiff then returned fire on
the unnamed party, causing their death. Plaintiff then alleges that immediately
thereafter; Defendants, who were actively on-team as Ridgeway Credit Union employees,
began shooting at Plaintiff in response to Plaintiff shooting the unnamed party in
self-defense. Plaintiff was killed due to Defendants shooting Plaintiff multiple
times.
On May 22nd, 2024, Plaintiff filed suit against Defendants in response to the
events. Shortly thereafter on the 28th of May 2024, Defendant 1UPSCOUT through counsel
filed a motion to dismiss, citing Plaintiff’s failure to state a claim.
I. STANDARD OF REVIEW
The court under Rid. Civ. Pro. R. 28(b)(2) and 12(a)(5) have the right to
dismiss a complaint on motion of the Defendant when the Plaintiff has shown no
right to relief. See Rid. Civ. Pro. R. 28(b)(2) and 12(a)(5).
ORDER IN RESPONSE TO DEFENDANT MOTION TO DISMISS - 2
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In order for a complaint to state a claim to which relief can be granted,
Plaintiff must establish in their complaint “sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face” See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted). However,
factual matter is just that, factual allegations which can be sustained and
proven. The court cannot “accept as true a legal conclusion couched as a
factual allegation” See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
The court when deciding whether to dismiss a claim for failure to state a claim
must do so sparingly and after heavy review of the merits within that
complaint. “[A] complaint should not be dismissed for failure to state a claim
unless it appears beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.” See Conley v. Gibson,
355 U.S. 41, 45-46 (1957). Dismissing a complaint for failure to state a
complaint has a “rigorous” standard. See Seven-Up Bottling Co. v. Seven-Up Co.,
561 F.2d 1275, 1282 (8th Cir. 1977); Winfrey v. Brewer, 570 F.2d 761, 765 (8th
Cir. 1978). A complaint may survive a failure to state a claim review when
“plaintiff has made factual allegations which, accepted as true, state a basis
for relief.” See Seedkem, Inc. v. Safranek, 466 F. Supp. 340, 344 (D. Neb.
1979). Now that this court has established what constitutes failure to state a
claim, we must test if this complaint states a claim.
II. REVIEW OF WRONGFUL DEATH ALLEGATON
Plaintiff alleges Defendant committed the act of “wrongful death” under 1
R. Stat. § 3109. A person is liable for wrongful death when they (1) cause the
death to another (2) do so without legal cause or justification. Ibid.
Defendant does not contest that the first element of wrongful death is
met; however, Defendant argues that the second element is not.
ORDER IN RESPONSE TO DEFENDANT MOTION TO DISMISS - 3
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Under the standard set by Ibqal, the court does find that the Plaintiff
did succeed in pleading sufficient factual matter, and we find that it is
plausible on its face, and does in fact meet both elements of wrongful death.
Plaintiff in prong 4 of their civil complaint states “Both Defendants
evidently wrongfully took his life in negligence, and deprived the Plaintiff of
his life within the State of Ridgeway.”. See Amended Plaintiff Civil Complaint.
Emphasis added. In this prong alone, and when considering the other allegations
that must be considered true under the Safranek standard, Plaintiff does state
a claim to which relief can be granted. This is done through Plaintiff’s
allegation that the death both (1) did occur, and (2) was wrongful. As such,
Defendants motion to dismiss all 1 R. Stat. § 3109 “Wrongful Death” allegations
is denied.
III. REVIEW OF BATTERY ALLEGATON
Now the court must review the allegation of “battery”, the elements of
such are codified under 1 R. Stat. § 3102. For a Plaintiff to succeed on a
battery claim, they must show; (1) harmful or offensive contact occurred and
(2) such contact occurred without consent. Ibid.
Although Plaintiff does plead the first element of Battery correctly,
they fall short in alleging that the battery occurred without consent. Absent
an allegation with meets the criteria of Battery, the claim cannot remain under
the standard established in Iqbal. Ibid. As such, Defendants motion to dismiss
all 1 R. Stat. § 3102 “Battery” allegations is granted.
IV. REVIEW OF NEGLIGENCE PER SE ALLEGATON
Plaintiff alleges Defendant are liable for 1 R. Stat. § 3106 “Negligence
Per Se”. For a claim under 1 R. Stat. § 3106 to be fruitful, Plaintiff must
demonstrate (1) be prescribed a duty by statute or administrative policy; (2)
ORDER IN RESPONSE TO DEFENDANT MOTION TO DISMISS - 4
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breach such statute or administrative policy; (3) cause an injury against an
individual as a result; and (4) the statute or administrative policy was
intended to prevent that injury. Ibid. When reviewing if a duty existed, the
court must review if Plaintiff “first establish[ed] the existence of a
relationship giving rise to a duty before attempting to rely on the doctrine of
negligence per se to establish the standard of conduct required” See Myers v.
U.S., 17 F.3d 890, 899 (6th Cir. 1994). The Defendants are both employees with
the Ridgeway Credit Union, a private company delegated with transporting and
ensuring the security of primarily money. The court finds that there is no
relationship between Plaintiff and Defendant which would obligate Defendant to
have a duty-to-care under common law. Thus, the court finds that the first
element of negligence per se has not been established, thus, the Plaintiff
cannot succeed on a claim of “negligence per se”.
The court is declining to rule on whether internal guidelines of a
private company is sufficient to satisfy element two and four of 1 R. Stat. §
3106.
The court grants Defendants motion to dismiss all allegations of 1 R.
Stat. § 3106 “Negligence Per Se”.
V. REVIEW OF DEPREVATION OF RIGHTS ALLEGATON
Plaintiff alleges Defendant deprived Plaintiff of certain rights under 1
R. Stat. § 3115. For Plaintiff to succeed on a claim of deprivation of rights,
they must establish; (1) cause an individual to be deprived of rights,
privileges, or immunities secured by the law; and (2) to act under the color of
the law.
Although, as Defendant said, Plaintiffs rights may very well have been
violated, the violator must be acting under the color of the law, which only a
ORDER IN RESPONSE TO DEFENDANT MOTION TO DISMISS - 5
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government entity may do. See United States v. Stanley, 109 U.S. 3, 17-18
(1883) and Adickes v. Kress Co., 398 U.S. 144, 224 n.29 (1970).
VI. ORDER
1. Defendants motion to dismiss the wrongful death allegations is denied for
the reasons stated herein. Cause of action One and Five shall remain.
2. Defendants motion to dismiss the battery, negligence per se, and deprivation
of rights allegations are granted. Cause of action Two, Three, Four, Six,
Seven, and Eight shall be dismissed with prejudice.
Dated this 3rd June 2024.
/s/ insertreality
Hon. insertreality
Magistrate Judge
