Koreny v. Smith

MARY ROSE KORENY, Plaintiff, v. RICHARD SMITH, MALLOREY MORRISSEY, FARRELL WAGNER,in his individual and official capacity, CHRISTIAN HEYNES, in his individual and official capacity,and THE BOROUGH OF BRENTWOOD, Defendants.

Civil Action 17-371

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

March 2, 2018

OPINION

CONTI, Chief District Judge

I. Procedural History and Nature of Action

Presently pending before the court are: 1) the motion to dismiss filed by defendants Farrell Wagner ("Wagner"), Christian Heynes ("Heynes") and the Borough of Brentwood ("Brentwood") (collectively "Brentwood defendants") (ECF No. 13), and 2) the motion for leave to file Amended Complaint filed by plaintiff Mary Rose Koreny ("plaintiff" or "Koreny") (ECF No. 37). This matter stems from a motor vehicle accident on December 15, 2015, between a vehicle driven by Koreny and a vehicle driven by defendant Richard Smith ("Smith"). The accident occurred during the police vehicular pursuit of Smith by Wagner, an officer of the Brentwood Borough Police Department. Heynes, also an officer of the Brentwood Borough Police Department, was the officer in charge during the incident.

On March 23, 2017, Koreny filed a 214-paragraph complaint, (ECF No. 1), commencing this federal civil rights action pursuant to 42 U.S.C. § 1983 for violation of her substantive due process rights against Wagner and Heynes in their individual and official capacities under Count I and against Brentwood under Count II for failure to train. Koreny also sues the Brentwood defendants for state law negligence under Count III, and brings only state law negligence claims against defendants Smith and Mallory Morrissey ("Morrissey"), both Pennsylvania residents, Id. ¶¶ 24, 25, respectively under Counts IV and V (negligent entrustment).

On June 15, 2017, the Brentwood defendants responded to the complaint by filing their motion to dismiss (ECF No. 13), with brief in support (ECF No. 14). Instead of responding to the motion to dismiss by amending the complaint as of right under Federal Rule of Civil Procedure 15(a)(1)(B), Koreny filed a response and brief in opposition. (ECF Nos. 15, 16). On August 30, 2017, Smith responded to the complaint by filing an answer and cross-claim against the Brentwood defendants, asserting that if Smith is liable to Koreny for negligence, they are liable over to him for "contribution, indemnity, sole liability and/or liability over as to these Defendants." (ECF No. 25 ¶ 15).

On November 9, 2017, the court ordered Koreny to show cause why the court should not dismiss the action with respect to defendant Morrissey because she had not served the complaint on Morrissey. (ECF No. 32). Koreny responded to that show cause order on November 16, 2017, and advised that she expended reasonable efforts but had difficulty serving defendant Morrissey, whom she alleges was an escaped fugitive. (ECF No. 36 at 4). She moved to extend the time for service (ECF No. 35), which was granted (ECF No. 40). Koreny served Morrissey on November 13, 2017, (ECF No. 34), and Morrissey filed her answer to the complaint on November 30, 2017. (ECF No. 44).

On November 16, 2017, Koreny filed a motion for leave to file amended complaint with brief in support (ECF Nos. 37, 38), with a proposed amended complaint attached to the motion (ECF No. 37-2). Brentwood defendants oppose Koreny's motion to amend (ECF Nos. 41, 42). Neither Smith nor Morrissey filed any opposition.

By separate show cause order on November 9, 2017, the court ordered the parties to address whether the court should not decline supplemental jurisdiction pursuant to 28 U.S.C. § 1367(c) over the state law claims, particularly with respect to the pendent-party claims against Smith and Morrissey. (ECF No. 33). Koreny filed her brief on supplemental jurisdiction on November 20, 2017 (ECF No. 39), Brentwood defendants filed their brief on supplemental jurisdiction on November 29, 2017 (ECF No. 43), and Smith and Morrissey filed their brief on November 30, 2017. (ECF No. 44). The court held oral argument on the motion to dismiss and motion for leave to amend on December 12, 2018. (ECF No. 46 [Tr. 12/12/17]). Having been fully briefed, the motion to dismiss and motion to amend are now ripe for decision.

II. Standard for Determining Motion to Dismiss

A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a motion to dismiss, the court is not opining on whether the plaintiff will likely prevail on the merits; rather, when considering a motion to dismiss, the court accepts as true all well-pled factual allegations in the complaint and views them in a light most favorable to the plaintiff. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). While a complaint does not need detailed factual allegations to survive a Rule 12(b)(6) motion to dismiss, a complaint must provide more than labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A "formulaic recitation of the elements of a cause of action will not do." Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). "Factual allegations must be enough to raise a right to relief above the speculative level" and "sufficient to state a claim for relief that is plausible on its face." Id. "A claim has 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 alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).

The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. . . . 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 556) (internal citations omitted).

The Court of Appeals for the Third Circuit instructs that "a court reviewing the sufficiency of a complaint must take three steps." Connelly v. Lane Constr, Corp., 809 F.3d 780 (3d Cir. 2016). The court explained:

First, it must "tak[e] note of the elements [the] plaintiff must plead to state a claim." Iqbal, 556 U.S. at 675. Second, it should identify allegations that, "because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 679. See alsoBurtch v. Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir.2011) ("Mere restatements of the elements of a claim are not entitled to the assumption of truth."(citation and editorial marks omitted)). Finally, "[w]hen there are well-pleaded factual allegations, [the] court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Iqbal, 556 U.S. at 679.

809 F.3d at 876-77. "Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679 (internal citations omitted).¹

III. Allegations in the Complaint

During the morning hours of December 15, 2015, Smith was driving in a safe and prudent manner within the posted speed limit on Glendale Street heading towards Elroy Avenue. Smith was driving a vehicle that Morrissey had rented for herself. She permitted him to use the car though she knew he had a suspended or revoked license and knew he was likely to drive the vehicle at an unsafe and unlawful manner, creating unreasonable risk of harm to others. (ECF No. 1, ¶¶ 1, 31-36, 50-52, 107(b), 112-116). Apparently, Smith slightly steered left to maneuver his vehicle around another vehicle stopped in his lane of traffic and eventually turned right onto Elroy Avenue in an allegedly "safe manner." (ECF No. 1, ¶¶ 55, 59). According to Koreny, prior to and during police pursuit of Smith, Wagner had not identified Smith as the driver and did not witness him driving in a manner sufficient to warrant a traffic stop or pursuit. (ECF No. 1, ¶¶ 56- 62). Wagner initiated police pursuit of Smith by reversing his vehicle after a generally unspecified "encounter" near the intersection of Glendale Street and Elroy Avenue. (ECF No. 1 ¶¶ 3, 5, 37, 63). Moments after engaging in pursuit, Wagner had the make, model and license plate of the vehicle rented by Morrissey and driven by Smith. (ECF No. 1 ¶ 68). As part of the pursuit, Wagner drove in excess of the posted speed limits for "many miles" through residential and commercial areas. (ECF No. 1 ¶¶ 3, 4). "The participants in the pursuit drove with reckless disregard, indifference and abandonment for all persons, places and things in their immediate vicinity throughout this unnecessary event." (ECF No. 1 ¶ 4).

Wagner almost caused a number of accidents during his pursuit of Smith, driving at excessive rates of speed through red lights, stop signs, active school and construction zones, activated school bus stop signals, and congested areas. (ECF No. 1 ¶ 44-46, 94). The pursuit continued outside Brentwood. (ECF No. 1 ¶ 95). In fleeing police pursuit, Smith was driving in excess of 70 mph. Smith lost control of his vehicle while trying to negotiate a left curve on Saw Mill Run Boulevard and collided head-on with the vehicle driven by Koreny. Koreny was driving to work and who was unable to avoid the collision. (ECF No. 1 ¶¶ 1, 6, 9, 11). As a result of the collision, emergency responders had to extricate Koreny from her vehicle and she sustained a multitude of "catastrophic" and "life threatening" injuries. (ECF No. 1 ¶¶ 2, 19, 149, 150).

Prior to the accident Wagner did not know Smith's identity. Also, unknown to Wagner at that time was that a warrant had issued for the arrest of Smith on charges for commission of a crime with a firearm and ...