Jones, Jr. et al v. Praxair, Inc. et al

Filing 27

REPORT AND RECOMMENDATIONS - 1) Defendants' Motion to Dismiss In Part 6 be granted, in part, and Plaintiffs' Fourth Claim be dismissed without prejudice subject to renewal, if warranted, as the remedy of punitive damages; 2) Defendants� 39; Motion To Dismiss In Part 6 be otherwise denied; and 3) Defendants' Motion To Strike In Part Certain Paragraphs Therefrom 6 be granted as to paragraphs six and seven of the complaint, and be otherwise denied. Objections to R&R due by 3/24/2016. Signed by Chief Magistrate Judge Sharon L. Ovington on 3/7/16. (mcm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
FREDDIE JONES, et al.,
Plaintiffs,

:
:

vs.

Case Nos. 3:15cv00277 (Lead Case)
3:15cv00397

:

PRAXAIR, INC., et al.,
Defendants.

:

District Judge Walter Herbert Rice
Chief Magistrate Judge Sharon L. Ovington

:

REPORT AND RECOMMENDATIONS1

I.

Introduction
The central event in this case was a rear-end collision on Interstate 75 involving two

trucks, or legalistically, two commercial motor vehicles. The collision allegedly caused
Plaintiffs serious and permanent injuries.
At the time of the collision, Plaintiff Freddie Jones, Jr. was driving one truck in which
Plaintiff Donnell C. Holmes, Sr. was a passenger; Defendant Anthony W. Crossley drove the
other truck. Defendant Praxair, Inc. allegedly “employed or engaged” Defendant Crossley
as a commercial motor vehicle driver. (Doc. #1, PageID# 2).
Plaintiffs raise four claims raised in their complaint including claims of negligence
and negligence per se against Defendant Praxair (Second Claim) and a claim for punitive
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Attached hereto is a NOTICE to the parties regarding objections to this Report and
Recommendations.

damages against Defendants Praxair and Crossley (Fourth Claim).2 Defendants seek
dismissal of these Claims against Praxair by way of their Motion Pursuant To Rule 12(b)
And 12(f) To Dismiss The Complaint In Part And To Strike In Part Certain Paragraphs
Therefrom (Doc. #6). Defendants’ Motion to Dismiss and the parties’ related memoranda
are presently before the Court (Doc. #s 10, 12, 22, 26), along with the record as a whole.
Defendants do not seek dismissal of Plaintiff’s negligence claim against Defendant
Crossley (First Claim). (Doc. #6, PageID# 33). They also do not seek dismissal of their
claim against Praxair based on respondeat superior (Third Claim). Id. As a result, if
Defendants’ Motion to Dismiss is well taken, Plaintiffs’ Third Claim will remain pending
against Praxair.
II.

Discussion

A.

Notice Pleading, Rule 12(b)(6), and Plausibility
Defendants contend that Plaintiffs’ Second and Fourth Claims must be dismissed

under Fed. R. Civ. P. 12(b)(6) because they fail to state plausible claims under Bell Atlantic
Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009).
Plaintiffs contend that their Second Claim alleging direct negligence against Defendant
Praxair provides sufficient notice and is plausible. Plaintiffs do not oppose dismissal
without prejudice of their claim for punitive damages (Claim Four).
Notice pleading is alive in the United States Courts; the “hypertechnical code
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Defendant Praxair is also a third-party Plaintiff by way of its claims against a third Defendant,
Risinger Bros. Transfer, Inc. Praxair’s claims against Defendant Risinger are not presently at issue.

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pleading regime of a prior era ...,” Iqbal, 556 U.S. at 678, is not. Notice pleading rests on
the foundational requirement that a complaint must contain a “short and plain statement of
the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair
notice of what the claim is and the grounds upon which it rests ....’” Twombly, 550 U.S. at
555 (quoting, respectively, Fed. R. Civ. P. 8(a)(2) and Conley v. Gibson, 355 U.S. 41, 47
(1957)). “The pleading standard ... does not require ‘detailed factual allegations,’ but it
demands more than an unadorned, the-defendant-unlawfully harmed me accusation.” Iqbal,
556 U.S. at 678 (quoting, in part, Twombly, 550 U.S. at 555).
A complaint survives a Rule 12(b)(6) motion to dismiss when it “contain[s] sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Iqbal, 556 U.S. at 678 (quoting, in part, Twombly, 550 U.S. at 570). “A claim has facial
plausibility when the plaintiff pleads 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 (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has
acted unlawfully.’” Iqbal, 556 U.S. at 678. A complaint’s “[f]actual allegations must be
enough to raise a right to relief above the speculative level, on the assumption that all the
allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at
555-56 (internal citations omitted).
“Determining whether a complaint states a plausible claim for relief will ... be a

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context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.” Iqbal, 556 U.S. at 679 (citation omitted). Indeed, “[t]he plausibility of an
inference depends on a host of considerations, including common sense and the strength of
competing explanations for the defendant’s conduct.” 16630 Southfield Ltd. P'ship v.
Flagstar Bank, F.S.B., 727 F.3d 502, 504 (6th Cir. 2013)(citing Iqbal, 556 U.S. at 682)).
B.

Plaintiff’s Second Claim
Defendants contend that Plaintiffs do not raise plausible independent negligence and

negligence per se claims against Praxair because the complaint asserts only sparse
allegations in support of these claims. Defendants maintain that the complaint fails to
provide Praxair with fair notice of the factual grounds for its independent negligence claims,
and “Defendant Praxair is at a loss to understand what supposed wrongful acts and/or
omissions Plaintiffs deem actionable tortious conduct.” (Doc. #6, PageID #33). Defendants
further argue that the complaint falls short of pleading plausible claims under theories of
direct-negligence liability – namely, negligent entrustment and negligent hiring, supervision,
or retention.
Liberally construing the complaint in Plaintiff’s favor, Logsdon v. Hains, 492 F.3d
334, 340 (6th Cir. 2007), and accepting its factual allegations as true reveals that around 2:30
a.m. on November 4, 2013, Plaintiff Jones was driving a Peterbilt tractor semi-trailer with its
flashers activated in the right lane northbound on Interstate 75. At the same time, Defendant
Crossley was driving a Praxair semi-tanker carrying liquid nitrogen. The Praxair tractor

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semi-tanker driven by Defendant Crossley crashed “with great force into the rear” of the
tractor semi-trailer driven by Plaintiff Jones. (Doc. #1, PageID #2). “Upon impact, the
Praxair tractor semi-tanker left the roadway, rolled over, and caught fire.” Id. at 3. It is
reasonable to infer from these facts that Defendant Crossley was speeding and failing to
maintain assured clear distance ahead in violation of Ohio law. These violations and the
severity of the crash speak to Defendant Crossley’s potential negligence per se. See Wheeler
v. Estes Exp. Line, 53 F.Supp.3d 1032, 1039 (N.D. Ohio 2014) (quoting Pond v. Leslein, 72
Ohio St.3d 50, 53 (1995) (“Violation of the assured clear distance ahead statute constitutes
negligence per se.”). More significantly for present purposes, this is part of the context in
which Plaintiff’s negligence claims against Praxair must be considered.
Considering Plaintiffs’ claims in context reveals that the Complaint contains short and
plain statements of their negligence and negligence per se claims against Praxair. This
occurs because the Complaint asserts sufficient factual allegations to give Praxair fair notice
of what Plaintiffs’ negligence and negligence per se claims are and the grounds upon which
they rest. See Twombly, 550 U.S. at 555. When accepting Plaintiff’s allegations as true and
liberally construing the Complaint in their favor, the entire context of Plaintiff’s claims is
straightforward. It concerns a rear-end collision at 2:30 a.m. between one truck driven
unlawfully by Defendant Crossley and another truck driven lawfully (flashers activated) by
Plaintiff Jones. Defendant Crossley was an allegedly incompetent or unfit commercial truck
driver – a fact reasonably inferred from his incompetent and unlawful driving, which

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proximately caused the crash, and seriously and permanently injured Plaintiffs. The
Complaint further alleges that despite knowing Defendant Crossley was an incompetent or
unlawful driver, Praxair employed or engaged him to drive the truck that caused the crash.
Specifically, Plaintiffs allege,“Defendant Praxair knew or should have known that Defendant
Crossley was not competent or fit to operate its commercial motor vehicle.” (Doc. #6,
PageID# 6).
Why does plausibility, rather than mere possibility, arise then? Because the obvious
alternative lawful explanation for Praxair’s conduct is not any stronger or any more likely
than Plaintiffs’ explanation. The obvious alternative explanation to Plaintiffs’ allegations
regarding Praxair is that it had no reason to believe Defendant Crossley was not a competent
or fit commercial truck operator. Rather than being a stronger explanation, this alternative
lawful explanation is no more likely than Plaintiffs’ theory of liability – the two compete
equally for the light of day. Because Plaintiffs are entitled to the truth of their allegations
and a liberal construction of the complaint in their favor, Logsdon, 492 F.3d at 340, their
plausible negligence and negligence per se claims against Defendant Praxair prevail at the
pleadings stage.
The reasoning in both Iqbal and Twombly bear this out. Although both cases found
the plaintiffs’ claims implausible, the Supreme Court in each case identified a specific
alternative lawful explanation for the events at issue that rendered the claims implausible.
See Iqbal, 556 U.S. at 682; Twombly, 550 U.S. at 564-69. This key feature of Iqbal and

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Twombly does not arise in the present case because the obvious alternative explanation is no
more likely than Plaintiffs’ allegations and Second Claim against Praxair. In this situation,
Plaintiffs’ entitlement to the truth of their allegations and a liberal construction of their
complaint reveals the plausibility of their independent negligence claims against Defendant
Praxair.
Defendants contends that Plaintiffs raise nothing more than “‘conclusions’ and/or
‘formulaic recitation’ of their of their negligent entrustment/hiring/supervision/retention
claims.” (Doc. #12, PageID# 193)(citations omitted). Defendants argue that Plaintiffs have
resorted to making “wholly-generalized blunderbuss allegations ... by claiming that they are
incapable of obtaining a factual basis for any liability theory against Praxair, other than
respondeat superior.” Id. at 194. Defendants, however, overlook or minimize the fact that
pertinent evidence and information about what Praxair knew or should have known is in
Praxair’s possession and control. This includes, for example, information about Defendant
Crossley’s driving record, training, and experience, plus information about how many days
and hours Defendant Praxair required him to drive, and how long he had been driving at the
time of the 2:30 a.m. crash. Defendants contend that Plaintiffs cannot unlock the door to
discovery due to the complaint’s failure to raise a plausible negligence claim against
Defendant Praxair. This argument is drawn from the concern identified in Iqbal that “Rule 8
marks a notable and generous departure from the hypertechnical, code-pleading regime of a
prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing

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more than conclusions.” 556 U.S. at 678-79. In the present case, however, the facts raised in
the complaint plus the lack of an obvious alternative lawful explanation that is stronger than
Plaintiffs’ theory of liability leaves their negligence claims against Praxair plausible and,
therefore, open the door to discovery.
Defendants also raise arguments concerning the high cost of discovery for Defendant
Praxair, and the recent amendments to the discovery rule regarding proportionality. Yet,
these arguments should be raised in informal discovery discussions between the parties, and
– if needed – during an informal discovery telephone conference with the court, and – if still
needed – in discovery motions. And, to the extent Defendants are correct about the need for
proportionality in discovery, the possibility that proportionality, in some cases, will lead to a
reduced range of discovery tends to work against their present concern over the possibility of
discovery abuse. Again, however, specific issues regarding proportionality and potential
discovery abuse are more properly the subject of discovery discussions, conferences, and
motions.
Accordingly, Defendants’ Motion to Dismiss Plaintiff’s Second Claim lacks merit.
C.

Remaining Issues
Defendants seek dismissal of Plaintiff’s claim for punitive damages (Fourth Claim).

Plaintiffs do not oppose dismissal of this claim without prejudice. They note, however, that
they should be permitted to amend the Complaint if discovery reveals facts to support
punitive damages.

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Dismissal of Plaintiff’s Fourth Claim for punitive damages is warranted because
punitive damages are a remedy not a cause of action. See Shoup v. Doyle, 974 F. Supp.2d
1058, 1086-87 (S.D. Ohio 2013) (Rice, J.). In the event facts arise during discovery that
support a decision to seek punitive damages, “punitive damages should not be pled as a
free-standing cause of action, but as a remedy for ... claims.” Id.
Defendants seek an Order striking paragraphs six, seven, and nine of the complaint
under Fed. R. Civ. P. 12(f). Plaintiffs do not oppose removal of paragraphs six and seven,
but do oppose the removal of paragraph nine.
Rule 12(f) allows striking from a pleading “any redundant, immaterial, impertinent, or
scandalous matter.” “Motions to strike are viewed with disfavor and are not frequently
granted. The function of the motion is to ‘avoid the expenditure of time and money that must
arise from litigating spurious issues by dispensing with’ them early in the case.” Operating
Engineers Local 324 Health Care Plan v. G & W Const. Co., 783 F.3d 1045, 1050 (6th Cir.
2015).
Paragraph nine of Plaintiffs’ complaint alleges that Defendant Praxair has a fleet of
commercial motor vehicles consisting of about 625 tractors, 746 commercial vehicle drivers,
“and its trucks traveled 44,880,071 mile in 2014.” (Doc. #1, PageID# 2). It is certain that
these allegations are not redundant, impertinent, or scandolous in light of the plain meaning
of these words. These allegations are not immaterial because, if true, they add some
perspective about the scope of Defendant Praxair’s business and its status as an employer of

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commercial truck drivers, allegedly like Defendant Crossley. These matters are neither
immaterial nor spurious and, given the disfavored view of motions to strike, paragraph nine
should not be stricken.
IT IS THEREFORE RECOMMENDED THAT:
1.

Defendants’ Motion Pursuant To Rule 12(b) To Dismiss The Complaint In Part
(Doc. #6) be granted, in part, and Plaintiffs’ Fourth Claim be dismissed without
prejudice subject to renewal, if warranted, as the remedy of punitive damages;

2.

Defendants’ Motion Pursuant To Rule 12(b) To Dismiss The Complaint In Part
(Doc. #6) be otherwise denied; and

3.

Defendants’ Motion Pursuant To Rule 12(f) To Strike In Part Certain
Paragraphs Therefrom (Doc. #6) be granted as to paragraphs six and seven of
the complaint, and be otherwise denied.

March 7, 2016
s/Sharon L. Ovington
Sharon L. Ovington
Chief United States Magistrate Judge

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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within fourteen days after being
served with this Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period
is extended to seventeen days because this Report is being served by one of the methods of
service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the
portions of the Report objected to and shall be accompanied by a memorandum of law in
support of the objections. If the Report and Recommendations are based in whole or in part
upon matters occurring of record at an oral hearing, the objecting party shall promptly
arrange for the transcription of the record, or such portions of it as all parties may agree upon
or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise
directs. A party may respond to another party’s objections within fourteen days after being
served with a copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on
appeal. See United States v. Walters, 638 F. 2d 947 (6th Cir. 1981); Thomas v. Arn, 474
U.S. 140 (1985).

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