IN THE SUPERIOR COURT OF THE
STATE OF RIDGEWAY
STEMPIEE,
Plaintiff,
v,
BRUNOMONTIEL1,
Defendant.
DEFENDANT’S MOTION TO DISMISS
Hon. Arthur_Chen
Docket Number: RSC-CV-2815
The Defendant, Mr. BrunoMontiel1, through their attorney, respectfully moves this
Honorable Court to dismiss the claims against them for failure to state a claim upon which relief
can be granted under Rid. R. Civ. P. 12(1)(5). The Complaint fails to specify exactly what part of
a tort they are alleging, and alleges injuries which are not recognized by State law.
FACTUAL BACKGROUND
1. Plaintiff alleges that they had been at the Defendant’s coffee shop, using a fire axe to
destroy his property when the Defendant approached her with a firearm, and allegedly
discharged the firearm, but did not strike the Plaintiff.
2. Plaintiff therefore sues Defendant for assault, because Defendant has allegedly caused
them to “fear for her safety and emotional distress” Compl ¶ 14.
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MOTION TO DISMISS
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3. Plaintiff also sues Defendant for negligence for discharging his firearm without any legal
reason to do so, which caused Plaintiff emotional distress. Compl ¶ 23.
4. Ultimately, because Plaintiff alleges she suffered emotional distress, the Defendant
should pay her $11,500 and compensatory damages.
LEGAL STANDARD
5. A complaint must contain sufficient factual matter, which is accepted as true, in order to
properly state a claim for which a plaintiff may be remedied. See Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007).
6. In xLaZerify v. StudsPerSecond, the Ridgeway Supreme Court defined a “sufficient
complaint” as one that “has a facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct.” The Court further held that the plaintiff did not satisfy that standard,
partially because the complaint “did not adequately combine the factual allegations with
the legal conclusions that address all parts of the tort in question.”
7. This principal also applies where the plaintiff alleges a violation of civil rights. Under
these standards, the plaintiff must identify the right which was allegedly violated, and
plead facts (not legal conclusions) in order to establish the defendant’s conduct actually
caused the deprivation. See West v. Atkins, 487 U.S. 42, 48 (1988); Rizzo v. Goode, 423
U.S. 362 (1976).
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MOTION TO DISMISS
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ARGUMENT
I. DEFENDANT FAILS TO SPECIFY COUNT ONE
8. The tort of assault under Ridgeway law has two different elements that a plaintiff must
choose from. A defendant can cause the reasonable apprehension of either (a) harmful
contact; or (b) offensive contact. 7 R. Stat. § 121.001.
9. Here, Plaintiff doesn’t specify what Defendant caused, instead only claiming that
Defendant caused either. Compl ¶ 18.
10. Because Defendant does not know exactly what element of assault Plaintiff is alleging,
Defendant is unable to properly answer to the complaint.
11. Under Twombly, this pleading fails because it merely recites the elements of the tort,
rather than actually demonstrating. Plaintiff only alleges that the Defendant’s discharge of
a firearm was intentional and voluntary, which is an element required for assault, but
Plaintiff fails to actually specify if it caused either harmful contact or offensive contact,
which are legally distinct.
12. Accordingly, the first cause fails to properly state a claim, because it does not actually
allege an element, but rather, recites the tort itself.
II. COUNT TWO FAILS TO ALLEGE NEGLIGENCE
13. Plaintiff also pleads negligence per se, which in part requires that a statute be violated. In
these types of claims, the most important questions is: (a) did the statute clearly apply to
the defendant; (2) did the defendant violate the statute; (3) did the violation proximately
cause the plaintiff’s injuries; and (4) is the statute’s purpose, at least, to protect the
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MOTION TO DISMISS
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interest of the plaintiff individually as opposed to the public. See Mest v. Cabot Corp.,
449 F.3d 502 (3d Cir. 2006).
14. Here, Plaintiff alleges that the statute violated was a criminal offense state, R.C.C. § 2.33,
which makes it illegal to discharge a firearm in city limits without legal reason to do so.
15. Defendant submits the following cases for the Court to consider in answering the Mest
questions of negligence per se:
No. 98-1884, 179 F.3d 154 (4th Cir. 1999)
16. This was a legal opinion from the U.S. Court of Appeals about a lawsuit against a
medical company. The plaintiff had screws installed in her spine which became loose,
causing pain. Plaintiff alleged that the company violated an administrative statute, and
that was negligence per se.
17. The Court held that negligence per se “is not a magic transforming formula that
automatically creates a private right of action for the civil enforcement, in tort law, of
every statute.”
18. Further, the Court denied the plaintiff’s lawsuit because the administrative policy was not
made to create a standard of care.
19. This case is similar to the issues here, because R.C.C. § 2.33 does not apply to the
Plaintiff herself as an individual. It is a criminal statute, designed to protect the public as
a whole, and maintain order and peace. Even if Defendant did violate R.C.C. § 2.33, it
isn’t negligence per se because R.C.C. § 2.33 is not made for Plaintiff, but rather, the
entire State.
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MOTION TO DISMISS
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20. The Mest case explains exactly that, citing Wagner v. Anzon, Inc., 684 A.2d 570, 574 (Pa.
Super. 1996). In Wagner, residents sued a factory for negligence per se for allegedly
violating an air pollution statute. However, the Court rejected their claims because the
statute “was a general environmental protection statute that has interests of the City
community as a whole at the heart of its purpose.”
21. R.C.C. § 2.33 is a general statute that has interest in the entire State, not specifically for
Plaintiff.
22. Therefore, Plaintiff claim of negligence per se fails, because the alleged statute that was
violated, is a general statute for an entire State, and has no interest in Plaintiff as an
individual.
CONCLUSION
23. Plaintiff pleads two torts, but fails to specifically lay them out procedurally and properly.
For the first claim of assault, Plaintiff hasn’t actually chosen an element, instead just
saying “or”, which fails to specify and means Defendant doesn’t know what he’s
answering to.
24. For the second element, it fails as a matter of law because Plaintiff uses a broad criminal
statute, which has interest in the State, not Plaintiff herself.
25. Accordingly, the case should be dismissed as Plaintiff has not stated a claim.
Date: October 1, 2026
Respectfully submitted,
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MOTION TO DISMISS
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Counsel for the Defendant’s
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MOTION TO DISMISS
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