Bass et al v. Hirschback Motor Lines, Inc. et al
Filing
23
Memorandum Opinion and Order denying 17 MOTION for Judgment on the Pleadings as to Plaintiffs' Claims for Punitive Damages as to defendant Brown, but granted as to defendant Hirschbach. Signed by District Judge Tom S. Lee on 10/10/14 (LWE)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
JUDITH CAIN BASS and JOHN BASS
VS.
PLAINTIFFS
CIVIL ACTION NO. 3:14CV360TSL-JCG
HIRSCHBACH MOTOR LINES, INC.;
WILLIE B. JAMES, JR.; and
JOHN DOES 1-5
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This cause is before the court on the motion of defendants
Hirschbach Motor Lines, Inc. (Hirschbach) and Willie J. Brown, Jr.
pursuant to Federal Rule of Civil Procedure 12(c) for judgment on
the pleadings as to the claims of plaintiffs Judith Cain Bass and
John Bass for punitive damages.
Plaintiffs have responded in
opposition to the motion, and the court, having considered the
memoranda of authorities submitted by the parties, concludes that
the motion should be denied as to Brown but granted as to
Hirschbach.
This case arises out of an automobile accident in which a
tractor-trailer rig operated by Brown in the course and scope of
his employment as an employee of Hirschbach, struck the vehicle
being operated by plaintiff Judith Bass.1
1
According to the
Plaintiffs have named Willie B. James, Jr. as the
defendant driver of the Hirchsbach tractor-trailer rig.
Defendants advise that the correct name of the driver is Willie J.
Brown, Jr., and explain that the investigating officer transposed
the name of the driver on the accident report. Plaintiffs respond
that “[a]t this point in the proceeding, [they] do not even know
the defendant driver’s real name.” For present purposes, the
complaint, at the time of the accident, both vehicles were
traveling south on Interstate 55, the Hirschbach vehicle in the
middle lane and the Bass vehicle in the right lane next to the
front right of the Hirschbach trailer.
Plaintiffs allege that the
accident occurred when Brown suddenly moved into the lane of
traffic occupied by Judith Bass, striking the rear quarter panel
of her vehicle so violently as to knock out all the glass and
thrust her vehicle in front of the tractor-trailer, which was
traveling approximately 50 to 55 miles per hour.
Plaintiffs
allege that Brown “was so inattentive at the time of the collision
that he not only failed to check for traffic in the outside lane
before moving right, but after striking Mrs. Bass’s vehicle he
pushed it down the interstate an estimated distance of 1/4 mile
... at an estimated speed of 50-55 miles an hour without ever
realizing he had struck Mrs. Bass’s car.” (Emphasis and bold in
original).
In their complaint, plaintiffs alleged claims for negligence
against Brown and also against Hirschbach on the basis of
respondeat superior liability, asserting that Brown failed to keep
a proper lookout, failed to maintain the appropriate speed of his
vehicle, failed to maintain control of his vehicle, failed to take
evasive action to avoid the collision, and was inattentive and
court will assume that Hirschbach, through counsel, has accurately
reported its driver’s name.
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drove in a careless and/or reckless manner.
Plaintiffs also
asserted claims against Hirchbach for direct liability based on
its alleged negligent hiring, retention, supervision and control
of Brown, alleging that at the time of hiring, it failed to
adequately inquire into Brown’s competence as a driver and that it
thereafter failed to adequately train, supervise and monitor
Brown, failed to adequately service and maintain the subject
vehicle, and failed to require Brown to maintain logs and records.
On the basis of their negligence allegations, Judith Bass seeks to
recover compensatory damages for the injuries, physical and
mental, she sustained as a result of the accident; her husband
seeks to recover for loss of consortium.
In addition to their
claims for compensatory damages based on simple negligence,
plaintiffs also included a demand for punitive damages based on
allegations of gross negligence.
The gross negligence count of
the complaint states the following:
Plaintiffs re-allege and incorporate herein the
foregoing allegations of this Complaint as if set forth
herein in their entirety.
The actions of these Defendants when viewed
objectively involved an extreme degree of risk,
considering the probability and magnitude of the
potential harm to Plaintiffs. Defendants had actual,
subjective awareness of the risk, but nevertheless
proceeded with conscious indifference to the rights,
safety and welfare of Plaintiffs herein, and as such
constitutes gross negligence (malice) as that term is
defined under Mississippi law. As a result, Plaintiffs
is entitled to the recovery of punitive damages.
3
These Defendants were grossly negligent inasmuch as
it should have been on notice as to any previous
negligent act(s) and/or omission(s) of its employee,
agent, and/or servant Willie B. James, Jr. [sic] in the
following particulars, among others:
(a) failing to keep proper lookout on previous
occasions;
(b) failing to maintain the appropriate speed
of his vehicle on previous occasions;
(c) inattentive while driving on previous
occasions;
(d) failing to abide by the laws of any state
on previous occasions;
(e) driving in a careless and reckless manner
on previous occasions;
(f) failing to maintain control of his vehicle
on previous occasions;
(g) failing to take evasive action to avoid
striking another vehicle on previous
occasions; and
(h) other acts of negligence as will be more
fully shown at trial.
The above acts constitute gross negligence and were each
a proximate cause of the occurrence in question.
Further, the act(s) and/or omission(s) of the Defendant,
Colonial Freight Systems, Inc. [sic], resulted in the
Plaintiffs’ damages.
Defendant Hirschbach, after admitting vicarious liability for
the accident, previously moved the court to dismiss as redundant
plaintiffs’ claims against it for negligent hiring, training,
entrustment, supervision, retention, control, and the like.
The
court granted that motion by order entered August 26, 2014.
Both
defendants have now moved for dismissal of plaintiffs’ punitive
damages claims.2
2
Plaintiffs criticize defendants’ filing of this second
motion to dismiss, arguing that it “begs the question of why they
did not include the gross negligence issue in their first motion
4
Rule 12(c) motions are governed by the same standard as Rule
12(b)(6) motions.
In re Great Lakes Dredge & Dock Co., 624 F.3d
201, 209 (5th Cir. 2010).
“The fundamental question is whether
the plaintiff states a claim on which relief may be granted.”
Morris v. PLIVA, Inc., 713 F.3d 774, 776 (5th Cir. 2013).
“To
survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 129
S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974, 167 L.
Ed. 2d 929 (2007)).
“A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the
to dismiss on the pleadings.” (Emphasis and bond in original).
However, there is nothing in the Federal Rules of Civil Procedure
or the court’s local rules precluding defendants’ motion. As one
court recently explained:
Although Rule 12(g)(2) generally prohibits a party from
making successive Rule 12 motions, this prohibition does
not apply to a motion for judgment on the pleadings
based on a failure to state a claim on which relief can
be granted. See Rule 12(g)(2) (“ Except as provided in
Rule 12(h)(2 ) ... a party that makes a motion under
this rule must not make another motion under this rule
raising a defense or objection that was available to the
party but omitted from its earlier motion” (emphasis
added)), and Rule 12(h)(2) (“Failure to state a claim
upon which relief can be granted ... may be raised ...
by a motion under Rule 12(c)”).... Rule 12(c) permits a
party to move for judgment on the pleadings “[a]fter the
pleadings are closed-but early enough not to delay
trial.” Rule 12(c).
Jones v. Dallas Cnty., No. 3:11–CV–2153–D, 2014 WL 1632154, at *2
n.4 (N.D. Apr. 23, 2014). Both conditions are satisfied here.
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reasonable inference that the defendant is liable for the
misconduct alleged.”
Iqbal, 129 S. Ct. at 1949.
It follows that
“where the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has
alleged—but it has not ‘show[n]’—‘that the pleader is entitled to
relief.’”
Id. at 1950 (quoting Fed. R. Civ. P. 8(a)(2)).
In
deciding whether the complaint states a valid claim for relief,
the court must “accept all well-pleaded facts as true and construe
the complaint in the light most favorable to the plaintiff.”
Great Lakes, 624 F.3d at 210.
However, “[t]hreadbare recitals of
the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”
citation omitted).
Iqbal, 129 S. Ct. at 1949 (internal
“A pleading that offers ‘labels and
conclusions’ or ‘a formulaic recitation of the elements of a cause
of action will not do.’” Iqbal, 556 U.S. at 678, 129 S. Ct. at
1949 (quoting Twombly, 550 U.S. at 557, 127 S. Ct. at 1965).
“Nor
does a complaint suffice if it tenders ‘naked assertion[s]’ devoid
of ‘further factual enhancement.’”
Id., 127 S. Ct. at 1949
(quoting Twombly, 550 U.S. at 557, 127 S. Ct. at 1966).
In the present motion, defendants first argue that plaintiffs
have failed to sufficiently plead any punitive conduct whatsoever
on the part of defendant Brown.
Pursuant to Mississippi Code
Annotated § 11–1–65(a),
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Punitive damages may not be awarded if the claimant does
not prove by clear and convincing evidence that the
defendant against whom punitive damages are sought acted
with actual malice, gross negligence which evidences a
willful, wanton or reckless disregard for the safety of
others, or committed actual fraud.
“Gross negligence” has been defined as “that course of conduct
which, under the particular circumstances, disclosed a reckless
indifference to consequences without the exertion of any
substantial effort to avoid them.”
735 So. 2d 226, 229 (Miss. 1999).
Turner v. City of Ruleville,
While the concept of gross
negligence does not encompass ordinary inadvertence or
inattention, in the court’s opinion, plaintiffs’ allegations in
the case at bar suggest an extreme degree of inattention on
Brown’s part which might be found to constitute gross negligence.
That is not to say that the court considers plaintiffs’
allegations to have merit.
Rather, the court merely concludes
that the claim against Brown for punitive damages is not subject
to dismissal on the pleadings.
Cf. Buckalew v. Schneider Nat.
Carriers, Inc., No. 3:13CV189–LG–JCG, 2014 WL 4146654, at *2 (S.D.
Miss. Aug. 19, 2014) (concluding on summary judgment motion that
driver’s initial failure to brake after impact with the
plaintiffs’ vehicle was merely simple negligence, as opposed to
reckless conduct in disregard for the plaintiffs’ safety).
Accordingly, the court will deny the motion to dismiss as to
Brown.
7
Turning to Hirschbach, the fact that the court has previously
dismissed the independent simple negligence claims against
Hirschbach for compensatory damages does not automatically
foreclose plaintiffs’ punitive damages claims against this
defendant.
See Dinger v. American Zurich Ins. Co., No.
3:13–CV–46–MPM–SAA, 2014 WL 580889, at *3 (N.D. Miss. Feb. 13,
2014) (stating, “If derivative liability is established, other
avenues—like punitive damages claims—will provide a route for
recovery in the event an employer's culpability exceeds that of
its employee's imputed negligence.”) (internal quotation marks and
citation omitted); Roberts v. Ecuanic Exp., Inc., No.
2:12–CV–84–KS–MTP, 2012 WL 3052838, at *2 (S.D. Miss. July 25,
2012) (holding that “a plaintiff's independent claims for punitive
damages against an employer may proceed despite the employer's
admission that its employee was acting in the course and scope of
employment”).
That said, plaintiffs cannot recover punitive
damages from Hirschbach on a theory of vicarious liability.
See
See Buckalew, 2014 WL 4146654, at *2-3 (holding that plaintiffs
could not recover punitive damages from driver’s employer “because
a punitive damages claim cannot be based on vicarious liability”);
Dinger, 2014 WL 580889, at *4 (concluding that under Mississippi
law, “punitive damages are not recoverable from the employer based
on their employee's actions”) (citing Miss. Code Ann. § 11-1-65,
which prohibits vicarious liability for punitive damages).
8
The
question, therefore, is whether plaintiffs have adequately alleged
a factual basis on which Hirschbach could be found to have acted
“with actual malice, [or] gross negligence which evidences a
willful, wanton or reckless disregard for the safety of
others....”
Miss. Code Ann. § 11-1-65(a).
In Iqbal, the Supreme Court held that
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. While legal conclusions can
provide the framework of a complaint, they must be
supported by factual allegations. 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.
Iqbal, 556 U.S. at 679, 129 S. Ct. at 1950.
Plaintiffs’ punitive
damages allegations against Hirschbach consist largely of legal
conclusions, i.e., Hirschbach “proceeded with conscious
indifference to the rights, safety and welfare of Plaintiffs
herein,” and as such was grossly negligent.
Yet the complaint is
devoid of factual allegations to back up these charges.
Plaintiffs allege that Hirschbach was grossly negligent because it
“should have been on notice as to any previous negligent act(s)
and/or omission(s) of” Brown, including any previous occasion(s)
when Brown may have failed to keep a proper lookout, failed to
maintain the appropriate speed of his vehicle, was inattentive
while driving, drove in a careless or reckless manner, failed to
maintain control of his vehicle, or failed to take evasive action
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to avoid striking another vehicle.
Yet there is no allegation
that Brown in fact engaged in any of the referenced acts and/or
omissions on previous occasions.
Rather, plaintiffs appear to
allege that had he done so, then Hirschbach should have known of
such acts and/or omissions and therefore was grossly negligent in
allowing him to operate the tractor-trailer on the occasion of the
subject accident.
As Hirschbach aptly contends, plaintiffs have
cited nothing more than bare, conclusory allegations of unknown
conduct that occurred (or may have) occurred on previous
unidentified occasions.
Such allegations may fairly be
characterized as “naked assertions” lacking in factual substance
and clearly are insufficient to state a viable claim against
Hirschbach that would support the recovery of punitive damages.
In response to the motion, plaintiffs point out that in
addition to their allegations relating to what Hirschbach should
have known regarding Brown’s driving record, their complaint
includes allegations against Hirschbach of negligent training,
supervision, retention, control and monitoring of Brown, which
allegations are incorporated by reference in their gross
negligence count.
However, no factual content is provided as
support for these obviously conclusory allegations either.3
3
Plaintiffs further assert that “the remarkable facts of
the accident place into issue the operator’s lack of skill and
whether Hirschbach knew or should have known about its operator’s
apparent lack of skill, knowledge and/or training.” The court
rejects plaintiffs’ argument. Clearly, there is no reasonable
10
The court acknowledges plaintiffs’ argument that discovery
will reveal what Hirshbach knew or should have known about Brown
when it hired him; and they submit that “exactly what it knew or
did not know can certainly be relevant to issues of gross
negligence at least sufficient to defeat a motion on the
pleadings.”
Federal Rule of Civil Procedure 11(b)(3) recognizes
that there can be cases in which there will be a need for
discovery to develop the factual circumstances underlying a claim.
See Trinity Gas Corp. v. City Bank & Trust Co. of Natchitoches, 54
Fed. App’x 591 (5th Cir. 2002); Fed. R. Civ. P. 11(b)(3)
(attorney’s or party’s signature on pleading represents his
certification that to the best of his “knowledge, information, and
belief, formed after an inquiry reasonable under the circumstances
[that] the factual contentions have evidentiary support or, if
specifically so identified, will likely have evidentiary support
after a reasonable opportunity for further investigation or
discovery”).
However, “[i]t is not permissible to file suit and
use discovery as the sole means of finding out whether you have a
basis for their suggestion that the facts surrounding the accident
itself could somehow give rise to an inference that Hirschbach
should have known prior to the accident that Brown was an unsafe
driver. See Juniper Networks, Inc. v. Shipley, 643 F.3d 1346,
1350 (Fed. Cir. 2011) (court “is not required to indulge in
unwarranted inferences in order to save a complaint from
dismissal”)(quotation and citation omitted); see also Iqbal, 556
U.S. at 678, 129 S. Ct. at 1949 (facts alleged must be sufficient
for “the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged”) (citing Twombly, 550 U.S.
at 556, 127 S. Ct. at 1955).
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case.
Discovery fills in the details, but you must have the
outline of a claim at the beginning.”
Szabo Food Serv. v. Canteen
Corp., 823 F.2d 1073, 1083 (7th Cir. 1987).
Based on the foregoing, the court concludes that plaintiff’s
complaint fails to state a valid claim for relief with respect to
punitive damages against Hirschbach as plaintiffs have not pled
“factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.”
Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949.
Hirschbach’s motion to dismiss plaintiffs’ punitive damages claim
against it will therefore be granted.
Accordingly, it is ordered that defendants’ motion for
judgment on the pleadings as to plaintiffs’ claim for punitive
damages is denied as to defendant Brown but granted as to
defendant Hirschbach.
SO ORDERED this 10th day of October, 2014.
/s/ Tom S. Lee
UNITED STATES DISTRICT JUDGE
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