Costello v. Landes Trucking, Inc. et al

Filing 31

MEMORANDUM AND ORDER. (read order for details) IT IS HEREBY ORDERED that defendants' motions to dismiss plaintiff's allegations of aggravating circumstances for failure to state a claim [## 24 ; 27 ] are granted. IT IS FURTHER ORDERE D that defendant shall supplement its discovery responses as indicated in its response to the motion to compel, and plaintiff's Motion to Compel [# 29 ] is otherwise denied without prejudice for failure to meet and confer and attempt to resolve the issue without court intervention. Signed by District Judge Catherine D. Perry on 06/16/2014. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
BRIAN DERY, Individually and as
)
Personal Representative of the Estate of )
MARLENE COSTELLO, Deceased,
)
)
Plaintiff,
)
)
vs.
)
)
LANDES TRUCKING, INC. &
)
GERARD A. MESMAN,
)
)
Defendants.
)

Case No. 4:13CV2333 CDP

MEMORANDUM AND ORDER
Defendants Landes Trucking Inc. and Gerard A. Mesman have filed motions
to dismiss, strike or, alternatively, for a more definite statement as to the portions
of plaintiff’s complaint relating to aggravating circumstances. The time for
opposition has passed without response from plaintiff. Because plaintiff’s
pleadings as to aggravated circumstances are no more than recitations of legal
standards, I will grant the defendants’ motions and dismiss plaintiff’s claims
related to aggravated circumstances.
Plaintiff has filed a motion to compel related to plaintiff’s interrogatories
and document requests. The motion to compel fails to state that the parties have
met and conferred in a good faith attempt to resolve this dispute, as required by

Local Rule 37-3.04 and by Rule 37(a)(1), Fed. R. Civ. P. In their response,
defendants agreed to supplement the information previously provided. I will order
defendant to supplement its responses as it indicated it was willing to do, and I will
otherwise deny the motion without prejudice for failure to comply with Local Rule
37-3.04.
Background
Landes Trucking employed Gerard Mesman as a truck driver. While driving
for Landes, Mesman operated a Landes-owned truck at a speed excessive for the
conditions and collided with a vehicle operated by Marlene Costello. In doing so,
Mesman acted “negligently and carelessly.” Costello later died from injuries
received in the collision, and her grandson was appointed as her estate’s personal
representative.
The complaint includes the following counts relating to the aggravated
circumstances surrounding Costello’s injuries:
Aggravating circumstances were attendant to the death of Marlene
Costello, including but not limited to:
a.
Defendant’s willful, wanton, and reckless
operation
and maintenance of the motor vehicle involved in the collision of
September 9, 2013 indicative of indifference to the consequences of
Marlene Costello and others.1
Both Landes Trucking and Mesman have filed nearly identical motions to
dismiss the aggravated circumstances claims. They ask, in the alternative, that the

1

Count III, ¶ 10; Count IV, ¶ 9.
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paragraphs containing the claims be stricken or for a more definite statement. The
motions are unopposed.
Standard for Motion to Dismiss
In ruling on a motion to dismiss, the Court must view the allegations in the
complaint in the light most favorable to Plaintiff. Eckert v. Titan Tire Corp., 514
F.3d 801, 806 (8th Cir. 2008). The court “must accept the allegations contained in
the complaint as true and draw all reasonable inferences in favor of the nonmoving
party.” Coons v. Mineta, 410 F.3d 1036, 1039 (8th Cir. 2005) (citation omitted).
The complaint's factual allegations must be sufficient “to raise a right to relief
above the speculative level,” however, and the motion to dismiss must be granted
if the complaint does not contain “enough facts to state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570
(2007) (abrogating the “no set of facts” standard for Fed. R. Civ. P. 12(b)(6) found
in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Furthermore, “the tenet that a
court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555 (pleading
offering only “labels and conclusions” or “a formulaic recitation of the elements of
a cause of action” will not do)).

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Discussion
Missouri treats damages for aggravating circumstances similar to punitive
damages. See Bennett v. Owens-Corning Fiberglass Corp., 896 S.W.2d 464, 466
(Mo. banc 1995) (“[A]ggravating circumstance damages are punitive in nature
. . . .”). Although punitive damages may be predicated upon negligent conduct,
Hoover’s Dairy, Inc. v. Mid-America Dairymen, Inc./Special Prods., Inc., 700
S.W.2d 426, 436 (Mo banc. 1985), they can be sustained only where it is alleged
that defendant knew or had reason to know that the conduct was substantially
likely to harm. See id. at 435-36.
Plaintiff fails to assert any facts establishing that a claim for punitive
damages might be plausible. Instead, plaintiff alleges that aggravating
circumstances exist because of Mesman’s “willful, wanton, and reckless operation
and maintenance of the motor vehicle.” This threadbare and conclusory statement
lacks the facts necessary to state a claim as to punitive damages – that Mesman and
Landes knew the acts were substantially likely to cause harm. See Iqbal, 556 U.S.
at 678.
Accordingly,
IT IS HEREBY ORDERED that defendants’ motions to dismiss plaintiff’s
allegations of aggravating circumstances for failure to state a claim [## 24; 27] are
granted.

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IT IS FURTHER ORDERED that defendant shall supplement its
discovery responses as indicated in its response to the motion to compel, and
plaintiff’s Motion to Compel [#29] is otherwise denied without prejudice for
failure to meet and confer and attempt to resolve the issue without court
intervention.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 16th day of June, 2014.

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