Garlington v. Jones et al

Filing 25

ORDER granting in part and denying in part 19 Motion to Dismiss for Failure to State a Claim. Signed on 9/9/2021 by District Judge Roseann Ketchmark. (Skelton, Sara)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION

ELIZABETH GARLINGTON

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Plaintiff,
v.
DEODIS JONES, JR., ET AL.
Defendants.

Case No. 6:21-cv-03135-RK

ORDER
Before the Court is Defendant ASF Intermodal, LLC’s (“ASF”) motion to dismiss Count
II of Plaintiff’s Petition. (Doc. 19.) The motion is fully briefed (Docs. 20, 22, 23) and ready for
decision. For the reasons set forth below, the motion is GRANTED in part and DENIED in
part.
Discussion
ASF’s reply in support of its motion provides this helpful summary of the parties’ briefing
on this matter:
Plaintiff admits and acknowledges that since Defendant has admitted respondeat
superior liability, all claims of direct liability are now moot under Missouri law.
See Document No. 22 (Plaintiff’s Suggestions in Opposition). However, Plaintiff
argues that Count II should not be dismissed as it also alleges respondeat superior
liability against Defendant ASF. Defendant acknowledges that Count II contains
numerous claims against ASF including vicarious liability, negligent hiring, and
negligent training. Given that Plaintiff has conceded that all of their claims aside
from vicarious liability are moot, Defendant is agreeable to all allegations of direct
liability being struck from the pleading in lieu of wholly dismissing the Count. For
this reason, Defendant requests that Paragraph 2 of Count II of Plaintiff’s Petition
be dismissed as this paragraph alleges negligent training and supervision which
Plaintiff has agreed are moot and Plaintiff is barred from proceeding under these
theories.
(Doc. 23, p. 1.)

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Conclusion
Accordingly, after careful consideration and considering the parties’ positions reflected
above, the Court ORDERS:
(1) Paragraph 2 of Count II of Plaintiff’s Petition is STRICKEN.
(2) Defendant ASF’s motion to dismiss is DENIED in all other respects.
IT IS SO ORDERED.
/s/ Roseann A. Ketchmark

ROSEANN A. KETCHMARK, JUDGE
UNITED STATES DISTRICT COURT

DATED: September 9, 2021

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