                IN THE SUPREME COURT OF THE STATE OF IDAHO

                                        Docket No. 44447

SHARON R. HAMMER,                                    )
                                                     )        Boise, June 2017 Term
      Plaintiff-Appellant,                           )
                                                     )        2017 Opinion No. 95
v.                                                   )
                                                     )        Filed: August 25, 2017
NILS RIBI,                                           )
                                                     )        Karel A. Lehrman, Clerk
      Defendant-Respondent.                          )

       Appeal from the District Court of the Fifth Judicial District of the State of Idaho,
       Blaine County. Hon. Robert J. Elgee, District Judge.

       The judgment of the district court is vacated and the case is remanded for further
       proceedings.

       James R. Donoval, Eagle, for appellant.

       Naylor & Hales, P.C., Boise, for respondent. Kirtlan Naylor argued.
             _______________________________________________

HORTON, Justice.
       Sharon Hammer appeals from the district court’s order dismissing her complaint.
Hammer’s action against Nils Ribi alleges that he assaulted her during a city council meeting on
September 15, 2011. The district court granted Ribi’s motion to dismiss for failure to state a
claim upon which relief could be granted. The district court denied Hammer’s motion to require
Ribi to undergo a mental examination and ruled that Hammer failed to plead facts which would
show that Ribi was not immune from suit under the Idaho Tort Claims Act (ITCA). We vacate
the judgment dismissing Hammer’s lawsuit and remand for further proceedings.
                    I. FACTUAL AND PROCEDURAL BACKGROUND
       This litigation arises from events occurring during a city council meeting on September
15, 2011. Hammer was employed as City Administrator for Sun Valley, and Ribi was a member
of the city council. Hammer’s complaint alleges that, during a break in the meeting, Hammer left
the council chambers to copy some documents. Ribi followed Hammer and demanded that she
make certain changes to budget documents. Hammer refused to make the changes and told Ribi

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that she had to speak with the Mayor before she could make any changes. Ribi then raised his
arms and told Hammer, “No! You will not talk to the Mayor!” Hammer was afraid that Ribi was
going to hit her, and she stepped back and said, “Whoa!”
       Hammer’s complaint alleged that Ribi had committed a civil assault. Hammer’s action
was originally brought in federal court. In July of 2015, the federal court declined to continue to
exercise supplemental jurisdiction over the civil assault claim. Hammer then filed this case in
state court. In the state court proceedings, Hammer filed a motion pursuant to I.R.C.P. 35,
seeking an order requiring Ribi to undergo a mental examination.
       Ribi moved to dismiss the complaint. Hammer responded with a motion to amend her
complaint. Following a hearing, the district court granted Ribi’s motion to dismiss the complaint
for failing to properly plead facts that would support a claim of civil assault but granted Hammer
leave to amend her complaint. The court then denied Hammer’s motion for a mental
examination. Hammer filed a motion to reconsider which the district court denied without
hearing.
       On May 20, 2016, Hammer filed her amended complaint. Ribi filed a motion to dismiss
the amended complaint under Idaho Rule of Civil Procedure 12(b)(6), again arguing that
Hammer had failed to plead facts necessary to support a finding of civil assault. Ribi also
claimed that he was immune from the lawsuit under the ITCA. The district court granted the
motion to dismiss. The district court assumed, without deciding, that Hammer had properly
pleaded the elements of civil assault but held that Hammer had failed to plead sufficient facts to
show that Ribi was not immune under the ITCA. Hammer timely appealed.
                                 II. STANDARD OF REVIEW
       “When this Court reviews an order dismissing an action pursuant to I.R.C.P. 12(b)(6), we
apply the same standard of review we apply to a motion for summary judgment.” Losser v.
Bradstreet, 145 Idaho 670, 672–73, 183 P.3d 758, 760–61 (2008). “A 12(b)(6) motion looks only
at the pleadings to determine whether a claim for relief has been stated.” Young v. City of
Ketchum, 137 Idaho 102, 104, 44 P.3d 1157, 1159 (2001). “[O]n review of a dismissal this Court
determines whether the non-movant has alleged sufficient facts in support of his claim, which if
true, would entitle him to relief.” Idaho Wool Growers Ass’n, Inc. v. State, 154 Idaho 716, 720,
302 P.3d 341, 345 (2012) (internal quotations and citations omitted). “In doing so, the Court
draws all reasonable inferences in favor of the non-moving party.” Id.

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        “The decision to order psychological testing is within the discretion of the trial court.”
Navarro v. Yonkers, 144 Idaho 882, 887, 173 P.3d 1141, 1146 (2007). “A trial court acts within
its discretion when it (1) recognizes the decision as one of discretion, (2) acts within the outer
limits of that discretion and (3) reaches its conclusion through an exercise of reason.” Id.
                                         III. ANALYSIS
       Hammer contends that the district court used the wrong legal standard for civil assault
when it dismissed her original complaint, the district court erred when it dismissed her amended
complaint based upon ITCA immunity, and the district court erred when it denied her motion for
a mental examination. These will be discussed in turn.
A. Whether the district court applied the wrong legal standard for civil assault when it
   considered Hammer’s original complaint.
       Hammer argues that the district court erred when it dismissed her original complaint
because it applied the wrong definition for a civil assault claim. As a threshold issue, we first
consider whether this claim is an appropriate subject of appellate review.
       Ordinarily, “[t]he amendment of the complaint supersedes the original complaint and all
subsequent proceedings are based upon the amended complaint.” Weinstein v. Prudential
Property and Cas. Ins. Co., 149 Idaho 299, 330, 233 P.3d 1221, 1252 (2010) (quoting W.L.
Scott, Inc. v. Madras Aerotech, Inc., 103 Idaho 736, 739, 653 P.2d 791, 794 (1982)). Thus, the
general rule is that “the ‘amended complaint supersedes the original, the latter being treated
thereafter as non-existent.’ ” Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir.1997)
(quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967)).       Therefore, we would not ordinarily
review the district court’s actions with regard to Hammer’s original complaint.
       However, in the limited context of an involuntary amendment of a plaintiff’s complaint in
response to a proposed order of dismissal, the federal courts have recognized an exception to the
general rule. See Hayward v. Cleveland Clinic Found., 759 F.3d 601, 616–17 (6th Cir. 2014);
Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012); In re Atlas Van Lines, Inc., 209
F.3d 1064, 1067 (8th Cir. 2000).
       The Lacey decision is particularly instructive. There, the Ninth Circuit Court of Appeals
found that application of the general rule in the case of an involuntary amendment not to be
“prudent or sufficiently just.” Lacey, 693 F.3d at 927. Rather, the Court characterized application
of the rule in such circumstances as “formalistic and harsh.” Id. The Court reasoned that the “rule

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is unfair to litigants” as it creates a “ ‘patently coercive predicament’ ” for plaintiffs. Id. (quoting
In re Atlas Van Lines, 209 F.3d at 1067). The “coercive predicament” plaintiffs’ counsel face is
that “counsel is between failing to preserve issues for appeal and risking sanctions by realleging
dismissed claims.” Id. ”The Court further found that “the rule is unfair to district courts. We see
no benefit in requiring plaintiffs to reallege claims that the district courts have already dealt with
on the merits and dismissed with prejudice.” Id. at 928. Finally, the Court concluded that there is
no “countervailing reason for keeping the current rule . . . . in practical terms we think there is
little benefit to the orderly administration of justice. Id. As we find the Lacey analysis to be
persuasive, we will consider the merits of the district court’s decision dismissing Hammer’s
original complaint.
        When it dismissed her initial complaint, the district court expressed skepticism that Idaho
Civil Jury Instruction 4.30 properly states the elements of civil assault. Idaho Civil Jury
Instruction 4.30 provides as follows:
                The plaintiff has the burden of proving each of the following propositions:
        (1) The defendant acted intending to cause a harmful or offensive contact with the
        person of the plaintiff or a third person, or an immediate fear of such contact; and
        (2) As a result, the plaintiff feared that such contact was imminent.
ICJI 4.30. The district court appears to have accepted Ribi’s contention that this instruction is
inadequate because it does not require the plaintiff to show that the defendant displayed a violent
overt action. In his treatise Law of Torts, Prosser notes that a requirement of an overt physical act
is generally not necessary to prove a tort. William L. Prosser, Law of Torts 40 (4th ed. 1971).
“Any act of such a nature as to excite apprehension of a battery may constitute an assault.” Id. at
38. “It would appear, however, that too much emphasis has been placed by the courts upon the
idea of motion or gesture, usually described as ‘some overt act.’ ” Id. “The only valid reason that
mere words do not amount to an assault is that ordinarily they create no reasonable apprehension
of immediate contact.” Id. at 40. We hold that ICJI 4.30 accurately prescribes the elements of
civil assault in this state.
B. The district court erred when it dismissed Hammer’s amended complaint.
        The district court dismissed Hammer’s amended complaint pursuant to Idaho Rule of
Civil Procedure 12(b)(6), holding that Ribi was immune under the ITCA. Although the parties
devote much briefing to the question whether Hammer pled facts sufficient to show that Ribi was
not entitled to immunity under the ITCA, they have missed the dispositive issue.

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        We have long held that immunity is an affirmative defense, including immunity under the
ITCA. See, e.g., Teurlings v. Larson, 156 Idaho 65, 68, 320 P.3d 1224, 1227 (2014) (considering
immunity under Idaho Code section 6-904(4)). In ruling on a 12(b)(6) motion, the district court
is to consider only the facts set forth in the pleadings. Young, 137 Idaho at 104, 44 P.3d at 1159.
These facts must be taken as true for the purposes of a motion to dismiss. Idaho Wool Growers
Ass’n, Inc., 154 Idaho at 720, 302 P.3d at 345. Thus, the sole question is whether “a ‘well-
pleaded . . . claim is asserted.’ ” Duff v. Draper, 96 Idaho 299, 305, 527 P.2d 1257, 1263 (1974)
(quoting Kozak v. Wells, 278 F.2d 104, 109 (8th Cir. 1960)).
        The corollary to the standard governing a district court’s decision on a 12(b)(6) motion is
this: a complaint is not subject to dismissal simply because it does not negate an affirmative
defense. Duff, 96 Idaho at 299, 527 P.2d at 1263; see also Dumas v. Ropp, 98 Idaho 61, 64, 558
P.2d 632, 635 (1977) (“One wonders how the pleading philosophy behind those simple
statements of a claim for relief . . . could ever be interpreted to require the plaintiff to negate the
defense of statute of limitations in his complaint.”) (Bakes, J., concurring)).
        Because a plaintiff is not required to “plead around” affirmative defenses, the district
court erred by dismissing Hammer’s complaint pursuant to Idaho Rule of Civil Procedure
12(b)(6) based upon Ribi’s affirmative defense under the ITCA. 1 Therefore, we vacate the
judgment dismissing Hammer’s lawsuit.
C. The district court did not abuse its discretion when it denied Hammer’s motion to
   compel a mental health examination.
        In support of her claim that the district court erred by denying her motion to compel Ribi
to undergo a mental examination, Hammer argues that the mental state of a defendant in a civil
assault claim is always in controversy. Hammer further argues that the question of Ribi’s ability
to tell the truth makes his mental state an issue in this case. The district court denied Hammer’s

1
  Even if a plaintiff were required to anticipate and negate affirmative defenses in her complaint, Hammer’s
complaint would have satisfied the more rigorous standard. Hammer’s amended complaint expressly alleged that
Ribi’s conduct was outside the scope of his employment and done with malice. Paragraph 8 of her Amended
Complaint alleges:
         The alleged acts engaged in by Defendant Ribi associated with his assault of Ms. Hammer on
         September 15, 2011, were done outside of the course and scope of his role as a member of the Sun
         Valley City Council and with malice or reckless disregard for Ms. Hammer’s protected rights.
Paragraph 72 reiterated this claim:
         The alleged acts engaged in by Defendant Ribi of assaulting Ms. Hammer were done outside of
         the course and scope of his limited role as a member of the Sun Valley City Council and with
         malice or reckless disregard for Ms. Hammer’s protected rights.
For purposes of the 12(b)(6) motion, the district court was required to accept these allegations as true.
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motion, holding that Ribi’s mental health was not in controversy in the case. We recognize that a
discovery order is interlocutory in nature, but will address Hammer’s claim for guidance on
remand.
          Under Idaho Rule of Civil Procedure 35(a), the district court may order a party to
undergo a mental examination upon a showing by the moving party that the proposed examinee’s
mental health is in controversy and that there is good cause to order the examination. I.R.C.P.
35(a). The Idaho rule is nearly identical to Federal Rule of Civil Procedure 35(a). “We prefer to
interpret the Idaho Rules of Civil Procedure in conformance with interpretations of the same
language in the federal rules.” Westby v. Schaefer, 157 Idaho 616, 622, 338 P.3d 1220, 1226
(2014).
          The United States Supreme Court considered Federal Rule of Civil Procedure 35(a) in
Schlagenhauf v. Holder, 379 U.S. 104 (1964). There, passengers of a Greyhound bus sued for
damages resulting from injuries they sustained when their bus crashed into the back of a tractor-
trailer. 379 U.S. at 106. The passengers sued Greyhound, Schlagenhauf (the bus driver), and the
owners of the tractor and trailer. Id. at 107. Greyhound filed a cross-claim against the tractor-
trailer owners, claiming that the truck was driving too slowly. Id. The truck owner’s answer
alleged that Schlagenhauf was not “mentally or physically capable” of driving the bus and that
his medical deficiencies had caused the collision. Id. The truck owner sought an order
compelling Schlagenhauf to undergo a number of mental and physical examinations. Id. The
district court ordered that he submit to nine separate examinations. After the Ninth Circuit Court
of Appeals denied Schlagenhauf’s request for extraordinary relief from the district court’s order,
the Supreme Court granted certiorari.
          The Supreme Court remanded the case, with instructions that the district court reconsider
its order. The Supreme Court noted that Schlagenhauf did not rely upon his mental or physical
condition in support or defense of a claim, id. at 119, and held that the truck owner’s bald
allegation regarding Schlagenhauf’s capability to drive was not sufficient to warrant the battery
of examinations ordered by the district court. Id. at 120–21. Discussing the “good cause” and “in
controversy” requirements of the rule, the Court explained:
          They are not merely met by conclusory allegations of the pleadings—nor by mere
          relevance to the case—but require an affirmative showing by the movant that each
          condition as to which the examination is sought is really and genuinely in
          controversy and that good cause exists for ordering each particular examination.
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Id. The Court cautioned that the rule “requires discriminating application by the trial judge, who
must decide, as an initial matter in every case, whether the party requesting a mental or physical
examination or examinations has adequately demonstrated the existence of the Rule’s
requirements of ‘in controversy’ and ‘good cause.’ ” Id. at 118–19.
       Hammer advances three theories in support of her contention that Ribi’s mental health is
in controversy. First, she argues that the mental health of the defendant in an assault case is
always relevant. Second, she contends that evidence of Ribi’s mental condition may be used to
attack his credibility. Finally, Hammer asserts that Ribi put his mental health at issue in a related
defamation action. These arguments do not persuade us that the district court abused its
discretion when it denied Hammer’s motion to compel Ribi to submit to a mental examination.
       First, as discussed earlier, the elements of civil assault are set forth in ICJI 4.30. Only the
first element relates to the defendant. That element requires the plaintiff to show that the
defendant acted with intent to cause a harmful contact or put the plaintiff in fear of such contact.
This element does not place the mental health of the defendant in controversy. Indeed, if we were
to accept Hammer’s premise, a party’s mental health would be at controversy in every case in
which intent is an element of the cause of action.
       Hammer’s next argument is that Ribi’s credibility is relevant and his mental capacity to
tell the truth is in controversy. As with Hammer’s first argument, if we were to accept this
reasoning, every party in every case would be required to submit to a mental examination upon
demand of another party.
       Hammer’s final argument is equally devoid of merit. She was required to demonstrate
that Ribi’s mental condition is in controversy in this action, not that it was an issue in a different
lawsuit between the parties. Hammer has failed to show that the district court abused its
discretion by denying her motion to compel Ribi to submit to a mental examination.
D. Attorney fees on appeal.
       Each party has requested an award of attorney fees. Hammer has obtained a decision
vacating the district court’s judgment dismissing Hammer’s amended complaint. She was also
correct in her assertion that the district court erred by dismissing her original complaint based
upon its view of the elements of a claim for civil assault. However, she was unsuccessful in her
effort to persuade us that the district court erred by denying her motion to compel the mental
examination. Considering the mixed result, we hold that there is no prevailing party in this

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appeal. Kantor v. Kantor, 160 Idaho 803, 809, 379 P.3d 1073, 1079 (2016). Therefore, neither
party is entitled to an award of costs or fees on appeal. Id.
                                        IV. CONCLUSION
       We vacate the district court’s judgment dismissing Hammer’s amended complaint and
remand for further proceedings consistent with this opinion.

       Chief Justice BURDICK, Justices EISMANN, JONES, and Justice Pro Tem TROUT,
CONCUR.




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