Kirk v. Sprague et al

Filing 46

ORDER ADOPTING REPORT AND RECOMMENDATIONS Entered by Judge Joe Billy McDade on 8/13/2012. IT IS THEREFORE ORDERED that Judge Cudmore's March 26, 2012 Report and Recommendation 32 is ADOPTED. Defendant Avis Budget Group, Inc.'s 12(b)(6) Motion to Dismiss 17 and Defendant PV Holding Corporation's 12(b)(6) Motion to Dismiss 18 are DENIED. This case is referred to Judge Cudmore for further pretrial proceedings.(RP, ilcd)

E-FILED

Monday, 13 August, 2012 04:19:07 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
KATHY P. KIRK

)
)
Plaintiff,
)
)
v.
)
)
DENNIS R. SPRAGUE, AVIS BUDGET )
GROUP, INC., AVIS RENT A CAR
)
SYSTEM, LLC, PV HOLDINGS CORP., )
and AVIS BUDGET CAR RENTAL, LLC )
)
Defendants.
)

Case No. 11-cv-1397

OPINION & ORDER
Before the Court is Defendant Avis Budget Group, Inc.’s (Avis Budget Group)
12(b)(6) Motion to Dismiss (Doc. 17) and Defendant PV Holding Corporation’s (PV
Holding) 12(b)(6) Motion to Dismiss (Doc. 18). The Motions sought dismissal of the
original Complaint. With this Court’s permission, Plaintiff filed an Amended
Complaint on February 28, 2012. (Doc. 22). Avis Budget Group and PV Holding
moved to revive their Motions to Dismiss on March 2, 2012, (Doc. 22, 23), which the
Court allowed. On March 26, 2012, Magistrate Judge Byron Cudmore issued a
Report and Recommendation (R&R) in which he recommended denial of both
Motions to Dismiss. (Doc. 32).
In the R&R, Judge Cudmore noted that both Defendants submitted affidavits
in support of their Motions, though motions to dismiss are to be decided on the face
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of a plaintiff’s complaint. (Doc. 32 at 5). Judge Cudmore therefore elected not to
consider the affidavits, which would require conversion of the Motions into motions
for summary judgment. (Doc. 32 at 5). Judge Cudmore rejected Avis Budget Group’s
assertions that Sprague was not its employee or agent and that it did not operate
the facility where the accident occurred, noting that, on a motion to dismiss, the
Court must accept as true all well-pleaded factual allegations in Plaintiff’s
Amended Complaint. (Doc. 32 at 6). Judge Cudmore was not persuaded by PV
Holding’s argument that that it should not be held responsible because it only
owned the vehicle Sprague drove, and that Sprague was not its employee or agent.
(Doc. 32 at 6). Judge Cudmore noted that PV Holding conceded that, as the owner of
the vehicle, it is presumed to be in control of that vehicle under Illinois law.
Scheibel v. Groeteka, 538 N.E.2d 1236, 1249 (Ill. App. Ct. 1989). In light of this
presumption, Judge Cudmore found that Plaintiff states a claim against PV
Holding. (Doc. 32 at 6).
Additionally, Judge Cudmore found that even if the Court chose to consider
the affidavits and converted the Motions to motions for summary judgment, it
would still recommend denial of the Motions. (Doc. 32 at 7). He noted that the
affidavits “raise more questions than they answer,” and that a much more detailed
analysis of the connection between the four Defendant business entities would be
necessary to determine whether a joint venture relationship or some other type of
agency or partnership relationship existed between them that would give rise to
joint liability. (Doc. 32 at 7).

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The parties were notified that failure to object to Judge Cudmore’s R&R
within fourteen days after service of the R&R would constitute a waiver of any
objections. (Doc. 32 at 8). See 28 U.S.C. § 636(b)(1). See also Video Views, Inc. v.
Studio 21, Ltd., 797 F.2d 538, 539 (7th Cir. 1986). Objections to the R&R were due
by April 12, 2012, and none were filed.
IT IS THEREFORE ORDERED that Judge Cudmore’s March 26, 2012
Report and Recommendation (Doc. 32) is ADOPTED. Defendant Avis Budget
Group, Inc.’s 12(b)(6) Motion to Dismiss (Doc. 17) and Defendant PV Holding
Corporation’s 12(b)(6) Motion to Dismiss (Doc. 18) are DENIED. This case is
referred to Judge Cudmore for further pretrial proceedings.

Entered this 13th day of August, 2012.

s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge

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