United States District Court, D. Columbia.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
ERIK SEARCH, Plaintiff: Paul J. Cornoni, LEAD ATTORNEY, REGAN
ZAMBRI & LONG, PLLC, Washington, DC.
UBER TECHNOLOGIES, INC., Defendant: Alison N. Davis, LITTLER
MENDELSON, P.C., Washington, DC.
DERESSE, also known as YAHANNES GETAHUN, Defendant, Pro se,
E. BOASBERG, United States District Judge.
generations, parents have admonished their children not to
get into cars with strangers. See, e.g., Forrest Gump
(Paramount Pictures 1994) (" Mama said not to be taking
rides from strangers." ). But in today's "
sharing economy," that warning is an anachronism: every
day, millions of Americans summon unknown drivers with the
press of a button. At the same time, the danger of taking a
ride from a stranger has not entirely disappeared. As with
other growing pains of twenty-first-century economics, courts
must now determine what is to be done about the risk of that
old-fashioned danger in a market shaped by new players and
Erik Search filed this lawsuit against Uber Technologies,
Inc., claiming that it is liable for an alleged knife attack
by one of its drivers, Yohannes Deresse. Search has asserted,
inter alia, claims of negligent hiring, training,
and supervision; negligence under respondeat
superior and apparent-agency theories; and violations of
the D.C. Code. Whether Uber is liable for many of these
depends on whether it was -- or presented itself as --
moving to dismiss, Uber argues that Deresse was instead
merely an independent contractor. It maintains that it "
is not a transportation company," but rather " a
technology company that acts as a conduit between
transportation providers and passengers." Mot. at 1.
Search responds that Defendant now seeks to disavow, for its
own legal expediency, the promotional language and promises
that helped it amass a broad consumer base and
multi-billion-dollar valuation -- in his view, Uber's is
a classic corporate case of trying to have one's cake and
eat it, too. Both sides' rhetoric notwithstanding, the
Court concludes that it is premature to decide most of these
issues at this time. This is because, in its Motion to
Dismiss, Uber relies predominantly on factual information
outside the four corners of Plaintiff's Complaint. For
the reasons that follow, consequently, the Court will deny in
large part, and grant in part, Uber's Motion.
to the Amended Complaint, which the Court must presume to be
true at this stage, Defendant Uber " is a car service
that provides drivers to customers on demand through a cell
phone application, or 'app,' in cities around the
world." Am. Compl., ¶ 6. In its app -- which is
free to download and install on any smartphone -- the company
markets itself to consumers as " your private driver in
more than 50 countries." Id., ¶ ¶ 6, 10.
business model operates as follows: it dictates the fares
charged in each jurisdiction in which it operates, collects
the appropriate payment from each passenger, and then passes
on to its drivers 75-80% of the fares collected while keeping
the remaining portion for itself. See
id., ¶ 11. Notably, " Uber drivers do not collect
any form of payment directly from consumers; rather, they
receive payment for their work . . . via weekly direct
deposit." Id., ¶ 12. Drivers are not permitted to
set their own fares, accept cash payment from consumers, or
retroactively adjust a fare up or down. See id., ¶
" subjects its drivers," moreover, " to a host
of specific requirements concerning the performance of their
driving duties." Id., ¶ 15. Among other things, the
company demands that its drivers " utilize an app on a
phone provided by Uber" ; maintain their vehicles in
" great" mechanical shape and " acceptably
clean" condition; " adhere to Uber's rules
regarding tipping," which include refusing tips once and
accepting them only on the second offer; sustain an
acceptable ride-request-acceptance rate; respond to ride
requests within an acceptable timeframe; " display the
Uber logo on their vehicles" ; and refrain from
excessively calling passengers who have requested a ride. See
September 8, 2013, Plaintiff Erik Search and three of his
friends required transportation from 3030 K Street, NW, in
the District of Columbia. See id., ¶ 16. As he had on
multiple past occasions, Search used the Uber app on his
phone to request a pick-up at that location. See id., ¶
¶ 16-17. On that evening, Uber driver Yohannes Deresse
accepted Plaintiff's request and arrived shortly
thereafter. See id.
following the group's entry into the car, Deresse "
began to act erratically." See id., ¶ 18.
Uncomfortable with Deresse's behavior, Search and his
companions exited the vehicle and began walking away. See id.
, ¶ ¶ 18-19. According to Plaintiff, Deresse
followed them out of the car and began to verbally harass
them. See id., ¶ 19. In response, Search told the driver
" to leave them alone," and that " they did
not feel safe riding in an Uber car with him." See id.,
point, the verbal dispute escalated into physical violence.
As Search recounts, Deresse pulled out a knife and stabbed
him at least six times in his chest and left arm. See id.,
¶ ¶ 21-22. Plaintiff sustained severe injuries
during the course of the brutal attack, requiring him to
undergo " CT scans, x-rays, surgical exploration of the
chest wound, diagnostic laparoscopy, cauterization, and
muscle reconstruction with sutures and staples." Id.,
¶ 22. In addition, Plaintiff suffered " pain,
mental anguish, humiliation, and indignity" as a result
of the assault. Id., ¶ 23.
Deresse and Uber as Defendants - as well as another entity
since dismissed, see ECF No. 15 (Stipulation of Dismissal) -
Plaintiff filed suit in D.C. Superior Court, alleging a
variety of state-law tort claims and one violation of the
D.C. Consumer Protection Procedures Act, codified at D.C.
Code § 28-3905(k). Uber, in turn, removed the suit to
federal court on diversity grounds and now moves to dismiss
all causes of action lodged against it. (Deresse has not yet
Federal Rule of Civil Procedure 12(b)(6), a court must
dismiss a claim for relief when the complaint " fail[s]
to state a claim upon which relief can be granted." In
evaluating a motion to dismiss under Rule 12(b)(6), the Court
must " treat the complaint's factual allegations as
true and must grant plaintiff the benefit of all inferences
that can be derived from the facts alleged." Sparrow
v. United Air Lines, Inc., 216 F.3d 1111, 1113, 342 U.S.
App.D.C. 268 (D.C. Cir. 2000) (internal quotation marks and
citation omitted); see also Ashcroft v. Iqbal, 556
U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A
court need not accept as
true, however, " a legal conclusion couched as a factual
allegation," nor an inference unsupported by the facts
set forth in the complaint. Trudeau v. FTC, 456 F.3d
178, 193, 372 U.S. App.D.C. 335 (D.C. Cir. 2006) (quoting
Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct.
2932, 92 L.Ed.2d 209 (1986)). Although " detailed
factual allegations" are not necessary to withstand a
Rule 12(b)(6) motion, Bell A. Corp. v. Twombly, 550
U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), "
a complaint must contain sufficient factual matter, [if]
accepted as true, to state a claim to relief that is
plausible on its face." Iqbal, 556 U.S. at 678
(internal quotation marks omitted). Though a plaintiff may
survive a Rule 12(b)(6) motion even if " recovery is
very remote and unlikely," the facts alleged in the
complaint " must be enough to raise a right to relief
above the speculative level." Twombly, 550 U.S.
at 555-56 (quoting Scheuer v. Rhodes, 416 U.S. 232,
236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)).
motion to dismiss under Rule 12(b)(6) must rely solely on
matters within the complaint, see Fed.R.Civ.P. 12(d), which
includes statements adopted by reference as well as copies of
written instruments joined as exhibits. See Fed.R.Civ.P.
10(c). Where the Court must consider " matters outside
the pleadings" to reach its conclusion, a motion to
dismiss " must be treated as one for summary judgment
under Rule 56." Fed.R.Civ.P. 12(d); see also Yates
v. District of Columbia, 324 F.3d 724, 725, 355 U.S.
App.D.C. 344 (D.C. Cir. 2003). Such conversion is premature,
however, if all parties have not yet had the "
opportunity to present evidence in support of their
respective positions." Kim v. United States,
632 F.3d 713, 719, 394 U.S. App.D.C. 149 (D.C. Cir. 2011)
(citing Fed.R.Civ.P. 12(d)).
instant Motion, Uber moves to dismiss five of the eight
counts in the Amended Complaint. The Court analyzes each in
turn, after first resolving a threshold procedural issue.
Conversion to Motion for Summary Judgment
motion to dismiss under Rule 12(b)(6) must rely solely on
facts within the four corners of the Complaint, and the Court
must adjudicate the Motion under the same constraint. See
Fed.R.Civ.P. 12(d); see also Hawkins v. Boone, 786
F.Supp.2d 328, 332 (D.D.C. 2011). Here, however, Defendants
have submitted materials outside the Complaint along with
their Motion -- namely, the Declaration of Rachel Holt, see
Mot., Exh. 1, and Uber's User Terms and Conditions (User
Agreement). See id., Exh. B. As previously ...