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)

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI SOUTHERN DIVISION ELIZABETH GARLINGTON ) ) ) ) ) ) ) ) ) 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.) 1 Case 6:21-cv-03135-RK Document 25 Filed 09/09/21 Page 1 of 3 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 2 Case 6:21-cv-03135-RK Document 25 Filed 09/09/21 Page 2 of 3 3 Case 6:21-cv-03135-RK Document 25 Filed 09/09/21 Page 3 of 3

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