United States v. 2020-10-29 | 19-56272 | WITOLD KOWBEL V. USC | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WITOLD KOWBEL,

Plaintiff-Appellant,

v.

UNIVERSITY OF SOUTHERN
CALIFORNIA; AINSLEY CARRY,

Defendants-Appellees.

No. 19-56272

D.C. No. 2:19-cv-02088-JAK-AS

MEMORANDUM
*

Appeal from the United States District Court
for the Central District of California
John A. Kronstadt, District Judge, Presiding

Submitted October 26, 2020
**

Before: McKEOWN, RAWLINSON, and FRIEDLAND, Circuit Judges.

Witold Kowbel appeals pro se from the district court’s judgment dismissing
his diversity action alleging state law claims for intentional and negligent infliction
of emotional distress arising out of academic disciplinary proceedings involving
his son. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED

OCT 29 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

2 19-56272
dismissal for failure to state a claim under Federal Rule of Civil Procedure
12(b)(6). Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1040 (9th
Cir. 2011). We affirm.
The district court properly dismissed Kowbel’s claim for intentional
infliction of emotional distress (“IIED”) because Kowbel failed to allege facts
sufficient to show extreme and outrageous conduct or that defendants’ actions were
directed towards Kowbel. See Hughes v. Pair ̧ 209 P.3d 963, 976 (Cal. 2009)
(elements of IIED claim).
The district court properly dismissed Kowbel’s claim for negligent infliction
of emotional distress (“NIED”) as a bystander because Kowbel failed to allege
facts sufficient to show that he was present at the time of defendant’s allegedly
negligent act and was contemporaneously aware that the act caused injury to his
son. See Fluharty v. Fluharty, 69 Cal. Rptr. 2d 244, 248 (Ct. App. 1997) (elements
of a bystander claim for NIED).
The district court did not abuse its discretion by dismissing Kowbel’s
complaint without leave to amend because amendment would have been futile.
See Cervantes, 656 F.3d at 1041 (setting forth standard of review and explaining
that dismissal without leave to amend is proper when amendment would be futile);
see also Mpoyo v. Litton Electro-Optical Sys., 430 F.3d 985, 987 (9th Cir. 2005)
(elements of claim preclusion).

3 19-56272
Defendants’ motion for judicial notice (Docket Entry No. 15) is granted.
AFFIRMED.