The opinion of the court was delivered by: Harold A. Baker United States District Judge
This case was removed from the Circuit Court in Champaign County, Illinois, on May 19, 2006. Plaintiff Dorothy Herron ("Herron") alleges that her father, David J. May ("May"), sustained injuries when he exited defendant National Railroad Passenger Corporation's ("Amtrak's") train as it approached Salt Lake City, Utah, or when May wandered through the railyards there.*fn1 Herron also claims she suffered severe emotional distress and resulting economic loss due to Amtrak's negligence.
On May 26, 2006, the defendant filed a motion to dismiss, arguing that Herron has not adequately alleged her capacity to sue as May's next friend. Amtrak also contends that she cannot prevail on her claim for negligent infliction of emotional distress.
This court's Local Rules state, "Any party opposing a motion . . . shall file a response . . . within fourteen (14) days after service of the motion and memorandum. If no response is timely filed, the presiding judge will presume there is no opposition to the motion and may rule without further notice to the parties." CDIL-LR 7.1(B)(2). The plaintiffs did not file a timely response to the motion to dismiss.
On August 7, 2006, the court entered an order citing the pertinent Local Rule and ordered the plaintiffs to file a response on or before August 22, 2006.*fn2 As of this date, the plaintiffs have not done so.
Amtrak argues for dismissal of Count I pursuant to Fed. R. Civ. P. 17(c) because there is no showing that May cannot bring this suit on his own. "[A] next friend has the burden to clearly establish the propriety of his status. Because [a] showing that he can proceed as a next friend is like any plaintiff's burden to show standing, [he] must allege his capacity to sue as a next friend in the complaint." T.W. v. Brophy, 954 F. Supp. 1306, 1309 (E.D. Wis.1996). The complaint is far from clear on this issue. Herron and May purchased Amtrak tickets from Champaign, Illinois to Emeryville, California, with a change of trains in Chicago. The complaint alleges that "as the train travelled into higher elevations in the mountains, . . . May, then age 81, became confused and incompetent due to his age and existing mental condition[.]" The allegation ties May's incompetency to his travel through high elevations. There is no indication that the confusion and incompetence persisted once May returned to a lower elevation.
Count II: Negligent Infliction of Emotional Distress and Financial Loss
In a Fed. R. Civ. P. 12(b)(6) motion the court " look[s] to the complaint; . . . accept[s] all material allegations made in the complaint as true, and . . . draw[s] all reasonable inferences from the allegations in the plaintiff's favor." Kolman, 31 F.3d at 431 (citing Scott v. O'Grady, 975 F.2d 366, 368 (7th Cir. 1992)). A motion to dismiss is granted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Kolman, 31 F.3d at 431 (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
Herron alleges that she suffered severe emotional distress after her father could not be found on the train. Illinois courts apply the "zone of physical danger" rule to a bystander's claim for negligent infliction of emotional distress. Rickey v. Chicago Transit Auth., 457 N.E.2d 1, 5 (Ill. 1983). Under the rule, Herron must have been in such proximity to the accident in which May was physically injured that there was a high risk to [her] of physical impact." Rickey, 457 N.E.2d at 5 (emphasis added). Herron admits she was "hundreds of miles" from Salt Lake City when she learned that May had been injured and was in an emergency room in Salt Lake City. Given the time and distance that had passed, Herron could not have been in close proximity to the accident that caused May's physical injury. Consequently, she can prove no set of facts, consistent with the allegations in the complaint, that would entitle her to relief on this claim.*fn3
The motion to dismiss both Counts of the complaint [#4] is granted. The plaintiffs may file, within ten (10) days of the date of this order, an amended complaint to plead more clearly Herron's capacity to bring Count I on May's behalf. If no amended complaint is filed within that time, this case will be terminated.
Entered this 24th day of ...