Donachricha et al v. Dolgencorp, LLC

Filing 38

RULING: The 32 Motion to Dismiss for Failure to State a Claim is DENIED at this time. Coca-Cola will have 30 days to amend its complaint. The 36 Motion for Oral Argument is MOOT. Signed by Judge James J. Brady on 06/23/2015. (BCL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
REBA M. DONACHRICHA AND
GEORGE DONACHRICHA, JR.

CIVIL ACTION

VERSUS
NO. 14-510-JJB
DOLGENCORP, LLC d/b/a
DOLLAR GENERAL, ET AL.
RULING ON MOTION TO DISMISS AND MOTION FOR ORAL ARGUMENT
This case is before the Court on a Motion to Dismiss (Doc. 32) filed by third party
defendant True Manufacturing Company, Inc. (True Manufacturing). True Manufacturing has
moved to dismiss the third party complaint (Doc. 27) filed by Coca-Cola Bottling Company, Inc.
(Coca-Cola). True Manufacturing filed a memorandum in support of its motion (Doc. 32-1),
Coca-Cola filed an opposition to the motion (Doc. 35), and True Manufacturing filed a reply
(Doc. 37). Coca-Cola has also filed a Motion for Oral Argument (Doc. 36).
Background
Plaintiff Reba Donachricha (Donachricha) claims that she slipped and fell, in a Dollar
General store, in a puddle next to a Coca-Cola cooler. Donachricha sues Dollar General and
Coca-Cola for failure to properly maintain the premises and the cooler, respectively. Coca-Cola
then brought a third party claim against True Manufacturing for manufacturing an unreasonably
dangerous cooler. True Manufacturing argues that Coca-Cola’s third-party complaint is
conclusory, does not provide a proper basis for its claims, and must therefore be dismissed.
Standard of Review
Under Rule 12(b)(6), “[t]o survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.”
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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007)). The Court, “[i]n reviewing a Rule 12(b)(6) motion . . . must accept all wellpleaded facts in the complaint as true and view them in the light most favorable to the plaintiff.”
Davis v. Bellsouth Telecomm., 2012 WL 2064699, at *1 (M.D. La. June 7, 2012) (citing Baker v.
Putnal, 75 F.3d 190, 196 (5th Cir. 1996)). Still, the plaintiff must assert facts sufficient to
demonstrate that he may plausibly be entitled to relief. Ashcroft, 556 U.S. at 678. Significantly,
“threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id.
Analysis
The third party complaint is based on two claims by Coca-Cola: indemnity and
contribution.
I.

Contribution
True Manufacturing cites La. Civ.Code Ann. art. 1805 and Threlkeld v. Haskins Law

Firm, 922 F.2d 265, 268 (La. 1991), which state that contribution is only allowed between
solidarily liable tortfeasors. True Manufacturing argues that it is not solidarily liable with CocaCola, pointing out that the companies are not alleged to be liable for the same acts, and solidarity
is never presumed. Hoefly v. Gov’t Emps. Ins. Co., 418 So.2d 575, 579 (La. 1982); La. Civ.Code
Ann. art. 1794.
In the absence of an agreement between the parties, the current version of La. Civ.Code
Ann. art. 2324 only imposes solidary liability for intentional or willful acts. Coca-Cola does not
allege that True Manufacturing committed an intentional or willful act or that the two companies
are together liable for the same performance, and has not alleged any facts to rebut the

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presumption against solidarity. Therefore, Coca-Cola has failed to allege a plausible claim for
contribution.
II.

Indemnity
Indemnity must arise either from contract or by law (either tort or quasi-contract).

Hamway v. Braud, 838 So. 2d 803, 806 (La. Ct. App. 2002). Since there is no allegation of a
contract between Coca-Cola and True Manufacturing, any obligation to indemnify must come
from the law (legal indemnity). One only has a claim for legal indemnity if his fault, for which
he seeks indemnity from the other party, is merely technical or constructive fault (also called
“vicarious” or “derivative” fault). Martco Ltd. Partnership v. Bruks Inc., 430 F. App'x 332, 335
(5th Cir. 2011); Hamway, 838 So.2d at 806. If a party is actually negligent or at fault, he cannot
recover for legal indemnity. Hamway, 838 So.2d at 806.
In its opposition, Coca-Cola has essentially ignored all of True Manufacturing’s points
and restated, in a conclusory fashion, that it is entitled to indemnity and contribution. Coca-Cola
cites Martco Ltd. Partnership v. Bruks, Inc., Nassif v. Sunrise Homes, 739 So.2d 183, and
Bewley Furniture Co. v. Maryland Casualty Company, 285 So.2d 216 (La. 1973) as examples of
cases in which indemnity claims were successful. However, these cases actually support True
Manufacturing’s argument.
As True Manufacturing has pointed out, Coca-Cola does not claim to be at fault
constructively or technically. If Coca-Cola’s allegations (regarding Donachricha’s claim against
it) are found to be correct, it is not at fault at all. If Donachricha’s allegations are found to be
correct, then Coca-Cola is actually at fault. In neither case does Coca-Cola have a claim for
indemnity against True Manufacturing. According to the Supreme Court of Louisiana, “the
equitable principle of restitution applies in an action for indemnity to allow a defendant who is

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only technically or constructively liable for a plaintiff's loss to recover from the party actually at
fault […]”. Nassif, 739 So.2d at 186. If Coca-Cola is liable to Donachricha at all, it will be for
negligently failing to properly maintain the machine, which is not passive negligence, and for
which True Manufacturing cannot be held liable. See Bewley Furniture Co., 285 So. 2d at 219.
In Martco, Coca-Cola’s principal case, the United States Court of Appeals for the Fifth
Circuit held that “[a] third-party claim for indemnity should be dismissed if ‘[t]here is no
foreseeable combination of findings, viewing the allegations of the pleadings ... in the light most
favorable to [the party seeking indemnity], that could result in [that party] being cast in judgment
for mere technical or passive fault.’” Martco Ltd. P'ship., 430 F. App'x at 335, quoting Threlkeld
v. Haskins Law Firm, 922 F.2d 265, 267-68 (5th Cir. 1991).
The relevant law overwhelmingly supports True Manufacturing’s argument, as CocaCola has failed to describe any scenario in which it could be held constructively or technically
liable to Donachricha for True Manufacturing’s negligence. As a result, Coca-Cola’s third party
complaint has failed to meet the plausibility standard illustrated by the U.S. Supreme Court in
Bell Atl. Corp. v. Twombly.
Motion for Oral Argument
As this court will grant Coca-Cola leave to amend, its Motion for Oral Argument is moot.

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Conclusion
For the foregoing reasons, the Motion to Dismiss for Failure to State a Claim (Doc. 32) is
DENIED at this time. Coca-Cola will have 30 days to amend its complaint. The Motion for Oral
Argument (Doc. 36) is MOOT.

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Signed in Baton Rouge, Louisiana, on June 23, 2015.

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JUDGE JAMES J. BRADY
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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