Murray v. Uber Techs., Inc.

Decision Date11 September 2020
Docket NumberCivil Action No. 20-11250-NMG
Citation486 F.Supp.3d 468
Parties Emily M. MURRAY, Plaintiff, v. UBER TECHNOLOGIES, INC. and Frederick Q. Amfo, Defendants.
CourtU.S. District Court — District of Massachusetts

Leo V. Boyle, Victoria M. Santoro, Meehan, Boyle, Black & Bogdanow, P.C., Boston, MA, for Plaintiff.

Christopher G. Betke, Elizabeth A. Doubleday, Coughlin & Betke, LLP, Boston, MA, for Defendants.

MEMORANDUM & ORDER

GORTON, United States District Judge

Plaintiff Emily Murray ("Murray" or "plaintiff") alleges that defendant Frederick Q. Amfo ("Amfo") sexually assaulted her in April, 2018, while driving for Uber Technologies, Inc. ("Uber", collectively with Amfo, "defendants").

Pending before the Court are the motions of plaintiff to remand this case to state court and of defendant to dismiss plaintiff's complaint.

I. Background
A. Parties

Defendant Uber is a Delaware corporation with its headquarters in San Francisco, California. It is a transportation network company that uses a mobile software application ("the Uber app") to match individuals seeking prearranged transportation ("riders") with non-professional drivers seeking customers ("Uber drivers"). The Uber app is free for both riders and drivers to download and install on their smartphones. The application process for becoming an Uber driver involves an entirely online application requiring a valid driver's license, vehicle registration and proof of insurance.

Defendant Amfo is a resident of Quincy, Massachusetts and, at the time of the alleged events, was an Uber driver.

Plaintiff Murray is resident of Weymouth, Massachusetts.

B. Factual Background

Plaintiff alleges that on April 8, 2018, at approximately 1:45 A.M., she requested a ride through the Uber app from Quincy, Massachusetts, to her home in Weymouth, Massachusetts. The Uber app matched plaintiff with Amfo and Amfo picked plaintiff up in Weymouth. Instead of driving plaintiff to her prearranged destination, Amfo allegedly parked on a poorly lit street and proceeded to rape plaintiff in his vehicle.

Amfo was arrested and charged with one count of rape. An immigration detainer was also issued because Amfo was unlawfully present in the United States. After his arraignment, Amfo posted bail and, before surrendering his passport, boarded a plane and absconded to Ghana. He has, apparently, not been located.

C. Procedural Background

Plaintiff filed her complaint in Massachusetts Superior Court for Norfolk County in June, 2020, alleging general negligence against Uber (Count I); negligent hiring, training, retention, supervision and management against Uber (Count II); and assault, battery, false imprisonment and intentional infliction of emotional distress against Uber as a common carrier and on a theory of respondeat superior and against Amfo individually (Counts III, IV, V and VI).

Uber timely removed the case to this Court on the basis of diversity jurisdiction pursuant to 28 U.S.C. § 1332(a)(1). Uber filed its motion to dismiss in July, 2020, which plaintiff timely opposed. Plaintiff then filed a motion to remand the case to state court on grounds of improper removal.

II. Motion for Remand

Plaintiff seeks remand of this case because Uber purportedly removed it without the consent of the co-defendant, Amfo, in violation of 28 U.S.C. § 1446(b)(2). Uber responds that plaintiff utilized an incorrect method of service of process upon Amfo and, therefore, his consent to removal was not required.

A. Legal Standard

A defendant is entitled to remove

[a]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction ... to the district court of the United States for the district and division embracing the place where such action is pending.

28 U.S.C. § 1441(a). A notice of removal must be filed within 30 days of receipt of the complaint. § 1446(b)(1). The so-called "rule of unanimity" provides that only properly joined and served defendants must consent to removal. § 1446(b)(2)(A) ; Sutler v. Redland Ins. Co., No. 12-10656-RWZ, 2012 WL 5240124, *3 (D. Mass. Oct. 24, 2012) (citing Pullman Co. v. Jenkins, 305 U.S. 534, 540–41, 59 S.Ct. 347, 83 L.Ed. 334 (1939) ); see also Acosta Oliveras v. Pittsburgh Corning Corp., 36 F. Supp. 2d 443, 444 (D.P.R. 1999).

B. Application

Plaintiff contends that she served Amfo in accordance with Mass. Gen. L. c. 90, § 3A, which provides

[t]he acceptance by a person who is a resident of any other state or country of the rights and privileges conferred by section three,1 as evidenced by the operation, by himself or agent, of a motor vehicle or trailer thereunder ... in this commonwealth otherwise than under said section, shall be deemed equivalent to an appointment by him of the registrar, or his successor in office, to be his true and lawful attorney upon whom may be served all lawful processes in any action or proceeding against him or his executor or administrator, growing out of any accident or collision in which such person or his agent may be involved while operating a motor vehicle or trailer on such way or in such place, and said acceptance or operation shall be a signification of his agreement that any such process against him, or his executor or administrator, which is so served shall be of the same legal force and validity as if served on him personally.

If § 3A applies, then service may be effectuated by

leaving a copy of the process ... in the hands of the registrar, or in his office, and by giving the defendant notice ...

Mass. Gen. c. 90, § 3C.

The bolded language plainly conditions the applicability of § 3A, which permits the method of service outlined in § 3C, upon plaintiff's demonstration that her claim "gr[ew] out of any accident or collision." Id. Such clear and unambiguous language will be interpreted according to its plain meaning. In re Fin. Oversight & Mgmt. Bd. For Puerto Rico, 919 F.3d 121, 128 (1st Cir. 2019).

Although the alleged criminal misconduct occurred in Amfo's vehicle, it did not grow out of or otherwise involve an "accident or collision." The authorized procedure for service of process outlined in § 3A is, therefore, unavailable to plaintiff and her attempted service on Amfo is ineffective.

Apparently acknowledging the inapplicability of § 3A, plaintiff argues for the first time in her reply brief that service was actually effectuated under Mass. Gen. L. c. 90 § 3D rather than § 3A. That provision provides that

[a]pplication for registration of a motor vehicle or trailer or for a license to operate motor vehicles shall constitute and irrevocably appoint, in case the certificate of registration or license applied for is issued, the registrar or his successor in office the true and lawful attorney of the applicant, upon whom may be served all lawful processes in any action or proceeding against him, or his executor or administrator, growing out of any accident or collision in which he or his agent may be involved while operating a motor vehicle within the commonwealth ...

Mass. Gen. L. c. 90, § 3D (emphasis supplied). Arguments raised for the first time in a reply brief are generally deemed waived. See, e.g., Noonan v. Wonderland Greyhound Park Realty, LLC, 723 F. Supp. 2d 298, 349 (D. Mass. 2010). In any event, as the bolded language demonstrates, plaintiff's contention that service was properly effectuated pursuant to § 3D fails for the same reason that §§ 3A and 3C are inapplicable.

Accordingly, the rule of unanimity does not apply and plaintiff's motion for remand will be denied.

III. Motion to Dismiss
A. Legal Standard

To survive a motion to dismiss, a claim must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In considering the merits of a motion to dismiss, the Court may only look to the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference and matters of which judicial notice can be taken.

Nollet v. Justices of Trial Court of Mass., 83 F. Supp. 2d 204, 208 (D. Mass. 2000), aff'd, 248 F.3d 1127 (1st Cir. 2000).

Furthermore, the Court must accept all factual allegations in the claim as true and draw all reasonable inferences in the claimant's favor. Langadinos v. Am. Airlines, Inc., 199 F.3d 68, 69 (1st Cir. 2000). If the facts in the claim are sufficient to state a cause of action, a motion to dismiss must be denied. See Nollet, 83 F. Supp. 2d at 208.

Although a court must accept as true all the factual allegations in a claim, that doctrine is not applicable to legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Threadbare recitals of legal elements which are supported by mere conclusory statements do not suffice to state a cause of action. Id.

B. Application

Plaintiff alleges that Uber is liable for the tortious misconduct of Amfo either because Uber is a common carrier or because it is vicariously liable. Plaintiff further alleges that Uber is directly liable for its own negligence in failing to implement adequate safety measures as well as for negligent hiring, training, retention and management.

Uber responds that (1) it is a Transportation Network Company ("TNC"), not a common carrier and, therefore, not subject to common carrier liability; (2) Amfo's actions fall outside of the scope of respondeat superior liability; and (3) plaintiff fails to state a claim of negligence or negligent hiring, training, retention, supervision and management.

1. Procedural Deficiency

As a preliminary matter, plaintiff contends that Uber's motion to dismiss must be denied on procedural grounds because Uber failed to comply with Local Rule 7.1(a)(2) of the Local Rules of the United States District Court for the District of Massachusetts ("L.R. 7.1(a)(2)"). That rule provides that no motion may be filed

unless counsel certify that they have conferred and have attempted in good faith to
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