Chavez-Matchie v. Jack Cooper Transport Co., Inc. et al

Filing 12

MEMORANDUM AND ORDER granting in part and denying in part 3 Motion to Dismiss; granting in part and denying in part 7 Motion to Dismiss. The motions to dismiss are granted as to Plaintiff's request for attorneys' fees, and as to Defen dant Jack Cooper Transport's motion to dismiss Plaintiff's claim for negligent qualification. The motions to dismiss are otherwise denied. The motions to strike are granted as to Exhibit B to the Complaint; they are otherwise denied. Signed by Chief District Judge Julie A Robinson on 6/1/2017. (ydm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BELINDA CHAVEZ-MATCHIE,
Plaintiff,
v.

Case No. 16-2832-JAR-GEB

JACK COOPER TRANSPORT CO., et al.,
Defendants.

MEMORANDUM AND ORDER
This action arises out of a motor vehicle collision between Plaintiff Belinda ChavezMatchie and Defendant David L. Vickers, who was operating a tractor-trailer in the course and
scope of his employment with Defendant Jack Cooper Transport Company at the time of the
accident. Before the Court are Defendants’ Motions to Dismiss and/or to Strike Allegations in
Plaintiff’s Complaint (Docs. 3, 7). The motions are fully briefed and the Court is prepared to
rule. As explained more fully below, the Court grants in part and denies in part Defendants’
motions to dismiss.
I.

Factual Background
The following facts are alleged in the Complaint and assumed to be true for purposes of

deciding this motion. On May 31, 2016, Plaintiff was traveling westbound in her motor vehicle
on Highway 54 in Butler County, Kansas. She was driving in the passing lane of the highway
parallel to a tractor-trailer driven by Vickers, when Vickers made an abrupt lane change into her
lane, striking her vehicle. At the time of the accident, Vickers was acting within the course and
scope of his employment with Jack Cooper Transport. Vickers did not see Plaintiff’s vehicle
when he changed lanes, and believed he was driving on Highway 77 rather than Highway 54. As

a result of the accident, Plaintiff suffered substantial neck and spinal injuries, pain and suffering,
and economic losses.
Plaintiff’s Complaint does not specifically label the claims alleged against Defendants.1
But the substance of the Complaint does assert claims of negligence against Vickers and Jack
Cooper Transport. Plaintiff raises claims against Jack Cooper Transport under the doctrine of
respondeat superior, and based on theories of negligent hiring, retention, qualification, and
supervision. In support of these claims, Plaintiff points to the Federal Motor Carrier Safety
Regulations (“FMCSRs”) as a source of industry standards. She attaches as Exhibit B the
Company Snapshot for Jack Cooper Transport, obtained on the Federal Motor Carrier Safety
Administration’s (“FMCSA”) website. According to Plaintiff, this exhibit demonstrates “that
Jack Cooper Transport has a systemic problem which is a habit, custom and routine practice of
allowing hours-of-service violations; a habit, custom and a routine practice of unsafe driving
violations; as well as a custom, habit and a routine business practice of failing to appropriately
maintain its fleet of commercial motor vehicles for safety.”2 Included in her prayer for relief is a
request for attorney fees under K.S.A. § 66-176.
II.

Motion to Dismiss
A.

Standard

Defendants move to dismiss several claims alleged in the Complaint under Fed. R. Civ.
P. 12(b)(6). To survive a motion to dismiss for failure to state a claim, a complaint must present
factual allegations, assumed to be true, that “raise a right to relief above the speculative level,”
1

Plaintiff is correct that she is not required to separately label her claims for relief in order to comply with
Fed. R. Civ. P. 8. See Johnson v. City of Shelby, Miss., 135 S. Ct. 346, 347 (2014); Zokari v. Gates, 561 F.3d 1076,
1084 (10th Cir. 2009). However, she must allege sufficient facts and information to place Defendants on notice of
the claims against them. Johnson, 135 S. Ct. at 347. It is clear from the briefs that Plaintiff’s failure to clearly assert
her claims created confusion: two of the stated grounds for dismissal are moot upon clarification by Plaintiff in the
response brief that she is not asserting them.
2

Doc. 1 ¶ 37.

2

and must contain “enough facts to state a claim to relief that is plausible on its face.”3 To state a
claim for relief, “the complaint must give the court reason to believe that this plaintiff has a
reasonable likelihood of mustering factual support for these claims.”4 The plausibility standard
does not require a showing of probability that a defendant has acted unlawfully, but requires
more than “a sheer possibility.”5 “[M]ere ‘labels and conclusions,’ and ‘a formulaic recitation of
the elements of a cause of action’ will not suffice; a plaintiff must offer specific factual
allegations to support each claim.”6 Finally, the Court must accept the nonmoving party’s
factual allegations as true and may not dismiss on the ground that it appears unlikely the
allegations can be proven.7
The Supreme Court has explained the analysis as a two-step process. For the purposes of
a motion to dismiss, the court “must take all the factual allegations in the complaint as true, [but]
we ‘are not bound to accept as true a legal conclusion couched as a factual allegation.’”8 Thus,
the court must first determine if the allegations are factual and entitled to an assumption of truth,
or merely legal conclusions that are not entitled to an assumption of truth.9 Second, the court
must determine whether the factual allegations, when assumed true, “plausibly give rise to an
entitlement to relief.”10 “A claim has facial plausibility when the plaintiff pleads factual content

3

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007).

4

Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007).

5

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

6

Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011) (quoting Twombly, 550 U.S. at

7

Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).

8

Id.

9

Id. at 679

555).

10

Id.

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that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.”11
B.

Discussion

Because Plaintiff’s Complaint does not separately label her claims for relief in this case,
Defendants initially moved to dismiss several claims that Plaintiff now clarifies are not alleged:
negligence per se, and claims under the Federal Motor Carrier Safety Regulations and the
Federal Motor Carrier Act (“MCA”). Plaintiff clarifies in the response brief that her references
in the Complaint to the MCA and FMCSRs are to establish the minimum standard of care for her
general negligence claims against these Defendants. Therefore, to the extent Defendants move
to dismiss claims of negligence per se, or federal claims under the MCA or FMCSRs, the motion
is moot. Defendants’ remaining arguments for dismissal are: (1) Plaintiff fails to allege
sufficient facts to support claims against Jack Cooper Transport for negligent hiring, supervision,
or retention; (2) Plaintiff cannot recover attorneys’ fees under K.S.A. § 66-176; and (3)
Plaintiff’s common law negligence claims cannot be based on allegations that Jack Cooper
Transport is an unsafe motor carrier that fails to follow governing federal safety regulations.
1.

Negligent Hiring, Retention, Qualification, Supervision, and Training

Under Kansas law, Plaintiff may be able to proceed against Jack Cooper Transport under
theories of negligent hiring, retention, or supervision. Negligent hiring and retention requires
that the employer, “by virtue of knowledge of the employee’s particular quality or propensity,
have reason to believe that an undue risk of harm exists to others as a result of continued
employment of that employee; and the harm which results must be within the risk created by the

11

Id. at 678.

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known propensity.”12 A claim of negligent supervision, “includes not only the failure to
supervise but also the failure to control persons with whom the defendant has a special
relationship, including the defendant’s employees or persons with dangerous propensities.”13
Liability under these theories is distinct from imputed liability under the doctrine of respondeat
superior; it is based on the separate duty by the employer to use reasonable care in selecting,
retaining, and supervising its employees.14
First, Defendants argue that there is no cause of action under Kansas law for negligent
“qualification.” Plaintiff does not respond to this argument or provide this Court with authority
that such a claim is cognizable under Kansas law. Therefore, the Court dismisses Plaintiff’s
claim of negligent qualification against Jack Cooper Transport.
Next, Defendants argue that Plaintiff has failed to allege facts to support the elements of a
negligent hiring, retention, or supervision claim. Some of the facts alleged in the Complaint in
support of these claims are: (1) Jack Cooper Transport hired, supervised, and trained Vickers; (2)
Jack Cooper Transport failed to properly train and supervise “drivers like Vickers” as a cost
cutting measure; (3) Jack Cooper Transport consciously failed to comply with certain federal
safety regulations in training and supervising its drivers; (4) Jack Cooper Transport failed to
immediately terminate, reprimand, or retrain Vickers after the accident; (5) Jack Cooper
Transport negligently hired, retained, supervised and trained its drivers’ managers; (6) Jack
Cooper Transport failed to use reasonable care in hiring, retaining, supervising, and training its
drivers and knew or reasonably should have known that they had hired unsafe and incompetent
employees and agents; and (7) Defendants’ failure to use reasonable care in hiring, retaining,

12

Wayman v. Accor N. Am., Inc., 251 P.3d 640, 650 (Kan. Ct. App. 2011).

13

Id. at 650 (quoting Marquis v. State Farm Fire & Cas. Co., 961 P.2d 1213, 1223 (Kan. 1998)).

14

Marquis, 961 P.2d at 1224–25.

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supervising, and training its drivers was the proximate cause of Plaintiff’s injuries. These factual
allegations give rise to plausible claims of relief. Defendant Jack Cooper Transport’s motion to
dismiss these claims is denied.
2.

Attorneys’ Fees under K.S.A. § 66-176

In her prayer for relief, Plaintiff seeks attorneys’ fees under K.S.A. § 66-176. That
provision states:
Any public utility or common carrier which violates any of the provisions of law
for the regulation of public utilities or common carriers shall forfeit, for every
offense, to the person, company or corporation aggrieved thereby, the actual
damages sustained by the party aggrieved, together with the costs of suit and
reasonable attorney fees, to be fixed by the court. If an appeal is taken from the
judgment or any part thereof, it shall be the duty of the appellate court to include
in the judgment additional reasonable attorney fees for services in the appellate
court or courts.
Defendant seeks dismissal of this claim for fees because Plaintiff does not allege that Defendants
violated any provisions of law for the regulation of public utilities or common carriers. The
Court agrees. The plain language of the statute requires a violation of the laws regulating public
utilities or common carriers.15 Plaintiff does not allege a violation of Chapter 66, and Plaintiff
concedes that she cannot bring a private cause of action under the MCA or the FMCSRs.16 Thus,
there is no basis for awarding her attorneys’ fees under this provision. Defendants’ motions to
dismiss Plaintiff’s request for attorneys’ fees is granted.
3.

Federal Motor Carrier Safety Regulations

Plaintiff’s common law negligence claims are predicated on alleged violations of the
FMCSRs. Plaintiff argues that the regulations provide the governing standard of care in this
case. Defendants argue that negligence cannot be predicated on such violations.
15

K.S.A. § 66-176; see also Drake v. Old Dominion Freight Line, Inc., No. 15-1307-EFM, 2016 WL
1328941, at *4–5 (D. Kan. Apr. 5, 2016).
16

Drake, 2016 WL 1328941, at *4–5.

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The authority provided by Plaintiff on this point is from other jurisdictions, and suggests
that safety regulations, while not establishing the legal standard of care, may be admissible as
evidence of the appropriate standard of care in a negligence case.17 This is consistent with
Kansas law. The Kansas Supreme Court has explained that government safety standards may
constitute relevant evidence in a negligence action, depending on the circumstances of the case.18
Where a safety regulation provides a minimum standard of care, it is admissible.19
Given this authority, Defendants’ basis for dismissal of the negligence claim in this case
is unclear. While it is true that the FMCSRs do not define their legal duty in this case, it is also
true that the regulations may be relevant and admissible. In evaluating the Complaint on a Rule
12(b)(6) motion, the Court accepts as true the facts as pled and finds that Plaintiff has alleged
sufficient facts to plausibly demonstrate that the duty of care was breached in this case. The
Court need not determine at this time the extent to which the FMSCRs are relevant and
admissible in this particular case.
III.

Motion to Strike
As an alternative to dismissal, Defendants move to strike the allegations in paragraphs

25, 30–36, 38 of the Complaint, and Exhibit B—the company profile for Jack Cooper Transport
from the FMCSA website, and the paragraphs relating to Jack Cooper Transport’s alleged
violations of the FMSCRs. Under Rule 12(f), the Court may strike from a pleading “any
redundant, immaterial, impertinent, or scandalous matter.” As described above, while the
See, e.g., Pierce v. Platte-Clay Elec. Co-op, 769 S.W.3d 769, 772 (Mo. 1969) (en banc) (“Were we to
permit industry standards to establish the legal standard of care, we would also permit industry to dictate the terms
under which its members could be held liable for negligence.”); Union Supply Co. v. Pust, 583 P.2d 276, 286 (Colo.
1978) (en banc) (finding safety standards relevant and affirming trial court’s ruling “that that these standards must
be introduced through an expert and must be authenticated as reliable and bona fide industry-wide safety codes.”).
17

18

Simon v. Simon, 924 P.2d 1255, 1261 (Kan. 1996) (relying on 57A Am. Jur. 2d Negligence §§ 186, 188,

19

Pullen v. West, 92 P.3d 584, 600 (Kan. 2004).

189).

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FMSCRs may not define the legal duty in this case, the Court cannot say at this juncture that
they are immaterial to determining the appropriate standard of care. Therefore, the Court finds
no basis for striking paragraphs 25, 30–36 or 38 from the Complaint
Exhibit B is governed by slightly different considerations. Under Fed. R. Civ. P. 10(c),
“[a] copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all
purposes.” In Nkemakolam v. St. John’s Military School,20 Judge Lungstrum considered a
motion to strike an x-ray and a photograph attached to a Complaint on the basis that they were
scandalous and immaterial. The court rejected the argument that the materials were scandalous,
but found that they should be stricken as immaterial because they violated Rule 10. Judge
Lungstrum explained that “courts that have considered this issue have concluded that the Rules
thus do not contemplate the attachment of exhibits, such as photographs, that are not written
instruments.”21 The types of exhibits that qualify as “written instruments” “consist largely of
documentary evidence, specifically contracts, notes, and other writings on which a party’s action
or defense is based.”22 The court determined that the x-ray and photograph were not “written
instruments,” as contemplated by Rule 10.23 Instead, they were “clearly intended as evidence to
support specific factual allegations by plaintiffs.”
Likewise here, the Court cannot conclude that Exhibit B is a written instrument upon
which Plaintiff’s negligence action is based.24 Although the company profile may be evidence
upon which certain factual allegations in the Complaint are based, it is not within the category of
20

876 F. Supp. 2d 1240, 1246 (D. Kan. 2012).

21

Id. at 1247.

22

Id. (quoting Rose v. Bartle, 871 F.2d 331, 339 n.3 (3d Cir. 1989)).

23

Id.

24

See id.; Copeland v. Aerisyn, LLC, No. 1:10-CV-78, 2011 WL 2181497, at *1–2 (E.D. Tenn. June 3,
2011) (striking exhibits and explaining that “Plaintiffs are free to provide additional factual details of claims but do
not need to include extraneous evidentiary support at the pleading stage.”).

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documents contemplated by Rule 10 as appropriately incorporated into pleadings. Accordingly,
the Court grants Defendants’ motion to strike Exhibit B from the Complaint.
IT IS THEREFORE ORDERED BY THE COURT that Defendants’ Motions to
Dismiss and/or to Strike Allegations in Plaintiff’s Complaint (Docs. 3, 7) are granted in part
and denied in part. The motions to dismiss are granted as to Plaintiff’s request for attorneys’
fees, and as to Defendant Jack Cooper Transport’s motion to dismiss Plaintiff’s claim for
negligent qualification. The motions to dismiss are otherwise denied. The motions to strike are
granted as to Exhibit B to the Complaint; they are otherwise denied.
IT IS SO ORDERED.
Dated: June 1, 2017
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

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