Antoon v. Throne To Go, LLC
ORDER AND REASONS denying 14 Motion to Dismiss for Failure to State a Claim. Signed by Judge Carl Barbier on 8/1/22. (cg)
Case 2:21-cv-02198-CJB-KWR Document 18 Filed 08/01/22 Page 1 of 4
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
THRONE TO GO, LLC d/b/a EVENT
RESTROOMS and KEVIN PHILLIPS
ORDER & REASONS
Before the Court is a Motion to Dismiss for Failure to State a Claim (Rec. Doc.
14) filed by Third Party Defendant, State Farm Mutual Automobile Insurance
Company (“State Farm”) and an opposition (Rec. Doc. 15) filed by Third Party
Plaintiffs, Throne To Go, LLC (“Throne To Go”) and Kevin Phillips (“Phillips”).
Having considered the motion and legal memoranda, the record, and the applicable
law, the Court finds that the motion should be denied.
FACTS AND PROCEDURAL BACKGROUND
This case arises from an automobile accident that occurred on or about March
19, 2021 when Phillips, while in the course and scope of his employment with Throne
To Go, allegedly failed to properly secure a portable toilet before transporting it. The
toilet fell off the truck and into the roadway. This allegedly necessitated Plaintiff,
Kelsey Antoon, to suddenly stop her vehicle which caused Freddie Willis to rear-end
Ms. Antoon. Mr. Willis was insured by State Farm at the time of this incident. Ms.
Antoon filed suit as a result of this incident against Throne To Go and Phillips,
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alleging that she sustained injuries as a result. 1 In their Answer, Throne To Go and
Phillips asserted a Third Party Demand against State Farm, Freddie Willis, and
Clear Blue Insurance Company. 2 State Farm subsequently filed the instant motion
to dismiss, claiming that Throne To Go and Phillips have not brought a viable claim
against State Farm and Freddie Willis.
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead sufficient
facts to “‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
A claim is facially plausible when the plaintiff pleads facts that allow the court to
“draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. The factual allegations in the complaint “must be enough to raise a right
to relief above the speculative level.” Twombly, 550 U.S. at 555. “[D]etailed factual
allegations” are not required, but the pleading must present “more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678.
The court must accept all well-pleaded facts as true and must draw all reasonable
inferences in favor of the plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232
(5th Cir. 2009). However, “‘conclusory allegations or legal conclusions masquerading
as factual conclusions will not suffice to prevent a motion to dismiss.’” Beavers v.
Metro. Life Ins. Co., 566 F.3d 436, 439 (5th Cir. 2009) (citation omitted).
State Farm and Freddie Willis settled with Ms. Antoon prior to her filing this suit, and, as such, were
not named in her Complaint.
2 Clear Blue Insurance Company is the alleged insurer of the vehicle and trailer owned by Throne To
Go that is the subject of this suit.
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State Farm argues that Third Party Plaintiffs give no facts or details to show
that they were damaged in any way by State Farm or Freddie Willis. (Rec. Doc. 14-1,
at 4). In opposition, Third Party Plaintiffs contend that they have specifically stated
a claim against State Farm and Freddie Willis as the “proximate cause” of the
accident that is the subject matter of this litigation. (Rec. Doc. 15, at 1). Specifically,
they assert that they have made allegations in paragraphs four (4) and six (6) that
show they were in fact damaged by State Farm. (Id. at 3). In the alternative, Third
Party Plaintiffs request leave to amend their Third-Party Demand. (Id.).
Paragraph four of the Third-Party Demand alleges that:
[t]he fault/negligence of the Third Party Defendant Freddie Willis was
the proximate cause of the accident, and consists of, but is not limited
to, the following:
A. Failing to maintain proper control of his vehicle
B. Striking another vehicle in the rear
C. Failing to act as a reasonable and prudent driver would act
D. Failing to maintain reasonable vigilance
E. Failing to avail himself of the last clear chance to avoid an accident
F. Failing to leave enough room to allow for emergency stops
G. Any and all other acts of fault/negligence which may be proved at
trial on the merits.
(Rec. Doc. 6, at 8). The Court finds that the above statements are conclusory
allegations lacking a single fact about the actions or inactions of Freddie Willis on the
date of the incident. Moreover, paragraph six simply alleges that “State Farm is
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responsible and/or liable for the actions of Freddie Willis.” (Id.). This, again, is a
conclusory allegation lacking a single detail or fact. The Court is inclined to grant
State Farm’s motion, but, given Rule 15(a)’s “bias in favor of granting leave to
amend,” a court “must possess a ‘substantial reason’ to deny a request.” Smith v. EMC
Corp., 393 F.3d 590, 595 (5th Cir. 2004) (citation omitted). Therefore, the Court will
permit Third Party Plaintiffs, Throne To Go and Phillips, to cure the deficiencies.
IT IS HEREBY ORDERED that Third Party Defendant, State Farm Mutual
Automobile Insurance Company’s, Motion to Dismiss for Failure to State a Claim
(Rec. Doc. 14) is DENIED without prejudice.
IT IS FURTHER ORDERED that Third Party Plaintiffs, Throne To Go and
Kevin Phillips, are GRANTED leave to file an amended Third Party Demand to cure
the above deficiencies.
New Orleans, Louisiana, this 1st day of August, 2022.
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
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