Harrell et al v. G4S Secure Solutions Inc
MEMORANDUM OPINION AND ORDER re 7 MOTION to Dismiss filed by G4S Secure Solutions Inc. For the reasons explained within, G4Ss Motion is DENIED as to Plaintiffs claims for wantonness and is GRANTED as to Plaintiffs punitive damages claim. However, Plaintiffs are simultaneously GRANTED leave to file an amended complaint that seeks a recovery for punitive damages against G4S consistent with the rulings as setout within no later than May 31, 2012.Signed by Judge Virginia Emerson Hopkins on 5/14/12. (SAC )
2012 May-14 PM 05:00
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
RICKEY HARRELL AND JOYCE
G4S SECURE SOLUTIONS, INC.,
FORMERLY KNOWN AS
) Case No.: 4:12-CV-569-VEH
MEMORANDUM OPINION AND ORDER
Plaintiffs Rickey Harrell (“Mr. Harrell”) and Joyce Harrell (“Ms. Harrell”)
initiated this personal injury action arising under state law against Defendant G4S
Secure Solutions, Inc. (“G4S”) on February 16, 2012. (Doc. 1). The lawsuit stems
from a motor vehicle collision which occurred on November 25, 2009, in Las Cruses,
New Mexico. (Doc. 1 ¶ 6).
Pending before the court is G4S’s Motion To Dismiss Pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure (Doc. 7) (the “Motion”) filed on
March 13, 2012. Plaintiffs filed their opposition (Doc. 11) to the Motion on March
27, 2012. On April 3, 2012, G4S followed with its reply. (Doc. 12). Accordingly,
the Motion is now under submission, and, for the reasons explained below, is
GRANTED as to the dismissal of count two only with leave for Plaintiffs to file an
A Rule 12(b)(6) motion attacks the legal sufficiency of the complaint. See Fed.
R. Civ. P. 12(b)(6). The Federal Rules of Civil Procedure require only that the
complaint provide “‘a short and plain statement of the claim’ that will give the
defendant fair notice of what the plaintiff’s claim is and the grounds upon which it
rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957), abrogated by Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 545 (2007); see also Fed. R. Civ. P. 8(a).
While a plaintiff must provide the grounds of his entitlement to relief, Rule 8
does not mandate the inclusion of “detailed factual allegations” within a complaint.
Twombly, 550 U.S. at 545 (quoting Conley, 355 U.S. at 47). However at the same
time, “it demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). “[O]nce a claim has
been stated adequately, it may be supported by showing any set of facts consistent
with the allegations in the complaint.” Twombly, 550 U.S. at 563.
“[A] court considering a motion to dismiss can choose to begin by identifying
pleadings that, because they are no more than conclusions, are not entitled to the
assumption of truth.” Iqbal, 129 S. Ct. at 1950. “While legal conclusions can
provide the framework of a complaint, they must be supported by factual allegations.”
Iqbal, 129 S. Ct. at 1950. “When there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they plausibly give rise to
an entitlement to relief.” Id. (emphasis added). “Under Twombly’s construction of
Rule 8 . . . [a plaintiff’s] complaint [must] ‘nudge [any] claims’ . . . ‘across the line
from conceivable to plausible.’ Ibid.” Iqbal, 129 S. Ct. at 1950-51.
A claim is plausible on its face “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 129 S. Ct. at 1949. “The plausibility standard is not akin
to a ‘probability requirement,’ but it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556).
Plaintiffs’ complaint contains four counts. (Doc. 1 at 2-6). In its Motion, G4S
seeks a dismissal of count two for wantonness, including the accompanying claim for
punitive damages. (Doc. 7 at 1). The court addresses the merits of the Motion
Choice of Law
As a preliminary matter, G4S contends (and Plaintiffs do not dispute) that
pursuant to the doctrine of lex loci delicti, Alabama choice of law rules require this
court to apply New Mexico law to the claims being pursued in this case. (Doc. 7 at
5-6). See Fitts v. Minnesota Min. & Mfg. Co., 581 So. 2d 819, 820 (Ala. 1991)
(“Under lex loci delicti, an Alabama court will determine the substantive rights of an
injured party according to the law of the state where the injury occurred.”). The court
agrees that New Mexico law governs the parties’ substantive rights and defenses in
this diversity action.
Regarding wantonness, Plaintiffs plead:
The Plaintiffs adopt and aver every paragraph above as if fully set
forth herein and further allege that the conduct of the Defendant’s Agent
was intentional or otherwise rises to the level of wanton conduct.
10. That due to the wantonness of the Defendant, Plaintiffs Rickey
Harrell and Joyce Harrell have suffered damages as described above.
(Doc. 1 ¶¶ 9-10). G4S maintains that Plaintiffs’ allegations pertaining to wantonness
are insufficient pursuant to Twombly and Iqbal because Plaintiffs point to no facts
which might make such a claim plausible under New Mexico law.
Plaintiffs respond to the contrary that they have alleged sufficient facts to
support a wantonness theory, including “Defendant’s Agent caus[ing] the bus he was
operating for Defendant to come to a complete stop on Interstate-10 in Las Cruses,
Dona Ana County, New Mexico.”
(Doc. 1 ¶ 6). Paragraph 9 of Plaintiffs’
wantonness count incorporates the contents of paragraph 6.
New Mexico Uniform Jury Instructions pertaining to punitive damages define
wanton conduct as “the doing of an act with utter indifference to or conscious
disregard for a person’s [rights] [safety].” N.M. Stat. Ann., Civ. UJI 13-1827 (2011);
see also State v. Mascarenas, 4 P.3d 1221, 1224 (N.M. 2000) (comparing criminal
negligence to reckless, wanton, and willful conduct and contrasting with legal
standard applicable to civil negligence). As the Supreme Court of New Mexico has
The term “wanton,” as used in our punitive damages instruction,
suggests a similar quality of wrongfulness when the evidence
demonstrates conduct committed without concern for the consequences,
rather than intentionally, and connotes an “utter indifference to or
conscious disregard for the rights of others.” See Curtiss v. Aetna Life
Ins. Co., 90 N.M. 105, 108, 560 P.2d 169, 172 (Ct. App.), cert. denied,
90 N.M. 7, 558 P.2d 619 (1976).
Romero v. Mervyn’s, 784 P.2d 992, 999 (N.M. 1989) (emphasis added).
Having studied Plaintiffs’ pleading and considered both sides’ arguments, the
court concludes that Plaintiffs have asserted enough facts to plausibly support a
wantonness claim.1 Therefore, the Motion is DENIED as to Plaintiffs’ wantonness
Punitive Damages Claim
G4S also argues that because Plaintiffs are relying solely upon the alleged
mental culpability of its agent driver without linking that fact to any element of
legally cognizable corporate blameworthiness, they are unable to sustain their claim
for punitive damages in count two. (Doc. 7 at 8-11). G4S is correct that not all
wanton acts by an agent will vicariously subject an employer to a claim for punitive
damages under New Mexico law. See, e.g., Grassie v. Roswell Hosp. Corp., 258 P.3d
1075, 1086 (N.M. App. 2010) (“Prior to Clay, imposition of punitive damages on an
employer—particularly a corporation—required either (1) proof that the
employee-tortfeasor possessed and was exercising managerial capacity, or (2) the
employer through other managerial employees ratified, accepted, or acquiesced in the
conduct of the tortfeasor.”) (internal citation omitted); id. (“Clay provided an
alternative method of proving a culpable mental state on the part of the employer.”).
As conceded by the Defendant, under New Mexico law a
corporation can be liable for punitive damages for the acts of its agents.
G4S has offered no controlling New Mexico authority in which coming to
a complete stop on a federal interstate cannot plausibly state a claim for wantonness.
The Supreme Court of New Mexico has made clear that a corporation
can be held liable for punitive damages where, as in the present case,
“the ‘cumulative conduct’ of employees may demonstrate corporate
recklessness.” Clay v. Ferrellgas, Inc., 118 N.M. 266, 270 (1994).
(Doc. 11 at 4) (footnote omitted). Plaintiffs then contend that “the risky conduct of
Defendant’s agent, alone or coupled with the alleged conduct of other of Defendant’s
agents in entrusting the bus to the Defendant’s agent, constitutes an allegation of
‘cumulative conduct’ sufficient to survive the Motion to Dismiss at this stage of the
case. (Doc. 11 at 4-5). Plaintiffs’ negligent entrustment allegations appear separately
in count three of their complaint, immediately after their wantonness allegations.
(Doc. 1 ¶¶ 11-13).
In its reply, G4S urges that Clay is a narrow exception, but cites to no authority
to support such a proposition. Cf. Flanigan’s Enters., Inc. v. Fulton County, Ga., 242
F.3d 976, 987 n.16 (11th Cir. 2001) (holding that a party waives an argument if the
party “fail[s] to elaborate or provide any citation of authority in support” of the
argument); Ordower v. Feldman, 826 F.2d 1569, 1576 (7th Cir. 1987) (stating that
an argument made without citation to authority is insufficient to raise an issue before
Having considered Plaintiffs’ complaint and the parties’ competing positions
in the context of the non-dispositive stage of this litigation, the court concludes that
while Plaintiffs may potentially rely upon Clay as a basis to maintain a punitive
damages award for wantonness under count two, as presently pled, Plaintiffs’
wantonness count does not allege or show cumulative conduct such that seeking
punitive damages against G4S premised upon the Clay standard might be proper.
Instead, count two impermissibly relies exclusively upon the conduct and mental state
of one G4S driver without asserting any appropriate avenue under which punitive
damages might be permissible pursued against G4S vicariously. Therefore, the
Motion is GRANTED with leave for Plaintiffs to replead their punitive damages
claim related to their wantonness count consistent with the cumulative conduct or
other vicarious liability standard applicable to punitive damages under New Mexico
Accordingly, for the reasons explained above, G4S’s Motion is DENIED as
to Plaintiffs’ claims for wantonness and is GRANTED as to Plaintiffs’ punitive
damages claim. However, Plaintiffs are simultaneously GRANTED leave to file an
amended complaint that seeks a recovery for punitive damages against G4S consistent
with the above rulings no later than May 31, 2012.
DONE and ORDERED this the 14th day of May, 2012.
VIRGINIA EMERSON HOPKINS
United States District Judge
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