Underwood v. Jensen Farms et al

Filing 109

OPINION AND ORDER by District Judge James H. Payne granting defendant Primus Group, Inc.'s motion to dismiss ( 89 MOTION to Dismiss Case for Failure to State a Claim)(lal, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
1.

DOYLE UNDERWOOD,
Plaintiff,

vs.
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3.

4.
5.

6.

JENSEN FARMS, a trade name;
FRONTERA PRODUCE LTD, a
foreign corporation;
PRIMUS GROUP, INC., d/b/a
PRIMUS LABS, a foreign
corporation;
PRUETT’S FOOD, INC., a domestic
corporation;
ASSOCIATED WHOLESALE
GROCERS, INC., a foreign
corporation; and
JOHN DOES 1-10,
Defendants.

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Case No.: 6:11-CV-348-JHP

OPINION AND ORDER
Before the Court are Defendant Primus Group, Inc.’s (“Primus”) Motion to Dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6) (Doc. No. 89); Plaintiff’s Response in
Opposition to Primus’ Motion to Dismiss (Doc. No. 93); Defendant Frontera Produce LTD’s
(“Frontera”) Partial Joinder in Plaintiff’s Response in Opposition to Primus’ Motion to Dismiss,
[Doc. No. 94]; and Primus’ Reply to Plaintiff’s Response (Doc. No. 94). For the reasons set
forth below, Defendants’ Motion to Dismiss is GRANTED.
BACKGROUND
This case stems from a multi-state Listeria outbreak allegedly linked to contaminated
cantaloupe manufactured, distributed, and sold collectively by Jenson Farms, Frontera,
Associated Wholesale Grocers, Inc. (“AWG”), and Pruett’s Food, Inc. (“Pruett’s”) during the

summer of 2011. One of the many consumers affected by this outbreak was Plaintiff Doyle
Underwood, who contracted listeriosis after consuming a contaminated cantaloupe he purchased
from Pruett’s in Broken Bow, Oklahoma. Plaintiff became ill on September 2, 2011, and was
subsequently hospitalized for approximately one month. While in the hospital, Plaintiff tested
positive for a strain of Listeria, which Oklahoma health officials later linked to the multi-state
outbreak involving cantaloupe manufactured by Jenson Farms.
Prior to the Listeria outbreak, Jenson Farms entered into a contract with Primus (the
“Audit Contract”), whereby Primus agreed to provide auditing services to Jenson Farms related
to manufacture and sale of food products. On July 25, 2011, through its agents Bio Food Safety
and auditor James Dilorio, Primus performed an audit at a cantaloupe packinghouse owned by
Jenson Farms in Colorado (the “July 25, 2011 Audit”). With regard to the July 25, 2011 Audit,
Plaintiff alleges that
Mr. Dilorio failed to observe, or properly downscore or consider, multiple
conditions or practices that were in violation of Primus’[]audit standards
applicable to cantaloupe packing houses, industry standards, and applicable FDA
industry guidance.
(Doc. No. 77, 10.)

In support of this contention, Plaintiff alleges that the results of an

environmental assessment performed by the FDA on September 22-23, 2011, subsequently set
out in a report dated October 19, 2011, identified unsatisfactory facility designs, equipment
designs, and postharvest practices. Plaintiff posits that “these conditions and practices [were]
inconsistent and irreconcilable with the ‘superior’ rating, and 96% score” Mr. Dilorio ultimately
gave to Jensen Farms and should have caused the packinghouse to fail the audit. (Id. at 11.)
Plaintiff concludes, “Had the Jensen Farms’ packing house failed the July 25, 2011 audit, the
cantaloupe that caused the Plaintiff[’s] [l]isteriosis illness would not have been distributed by
Jensen Farms and Frontera.” (Id.)
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On October 5, 2011, Plaintiff commenced the instant action seeking damages resulting
from his listeriosis infection. In his Second Amended Complaint (“SAC”), Plaintiff asserts strict
liability, breach of warranty, negligence, and negligence per se claims against Frontera, AWG,
and Pruett’s. Further, Plaintiff also asserts negligence claims against Primus based on (1)
Primus’ selection and retention of Bio Food Safety and (2) Mr. Dilorio’s July 25, 2011 audit
conduct. On October 11, 2013, Primus filed a Motion to Dismiss the claims against it pursuant
to Fed. R. Civ. P. 12(b)(6) (Doc. No. 89). This motion is fully briefed and now before the Court.
DISCUSSION
Fed. R. Civ. P. 12(b)(6) states that a court may dismiss a complaint for “failure to state a
claim upon which relief can be granted.” See Fed. R. Civ. P. 12(b)(6). In reviewing a motion to
dismiss pursuant to Rule 12(b)(6), the Court must accept all well-plead allegations in the
Complaint as true and view those allegations in the light most favorable to the nonmoving party.
Stidham v. Peace Officer Standards and Training, 265 F.3d 1144, 1149 (10th Cir. 2001) (quoting
Sutton v. Utah State Sch. For the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999)). With
regard to what must be pled to avoid dismissal, the Supreme Court in Ashcroft v. Iqbal, 556 U.S.
662, 677 (2009), described the standard that must be met as “facial plausibility.” In this context,
“plausibility” refers to the scope and degree of specificity of the allegations in the complaint.
Khalik v. United Air Lines, 671 F.3d 1188 (10th Cir. 2012).
Although Fed. R. Civ. P. 8(a)(2) still requires the pleader to supply only “a short and
plain statement of the claim,” that statement must provide more than “labels and conclusions,” “a
formulaic recitation of the elements of a cause of action,” or generalized allegations of conduct
that “encompass a wide swath of conduct, much of it innocent.” Id. In this regard, the plaintiff
must do more than articulate a set of facts that could “conceivabl[y]” or “possibly” give rise to a

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claim; he must “nudge[ ]his claims across the line from conceivable to plausible.” Id. Of course,
the degree of specificity that will be required will necessarily vary based on the context of the
case. Id. Determining whether a complaint states a plausible claim for relief is a “contextspecific task that requires the reviewing court to draw on its judicial experience and common
sense.” See Iqbal, 556 U.S. at 679. Ultimately, the question to be decided is “whether the
complaint sufficiently alleges facts supporting all the elements necessary to establish an
entitlement to relief under the legal theory proposed.” Lane v. Simon, 495 F.3d 1182, 1186 (10th
Cir. 2007) (internal quotation omitted).
A. Negligence in Conducting the July 25, 2011 Audit
To establish a prima facie case of negligence under Oklahoma law, Plaintiff must prove
that (1) a duty was owed to him, (2) the duty was breached because it was not properly exercised
or performed, and (3) the breach of duty proximately caused Plaintiff to suffer harm. Thompson
v. Presbyterian Hospital, Inc., 652 P.2d 260, 263 (Okla. 1982). At its most basic level, “[a]ny
claim of negligence depends on the existence of a duty and the breach of that duty.” Brewer v.
Murray, 292 P.3d 41, 46 (Okla. Civ. App. 2012) (citing Wofford v. Eastern State Hosp., 795 P.2d
516, 518 (Okla. 1990)). As explained below, the Court finds that Plaintiff has failed to allege
facts sufficient to establish both the duty and causation elements of a negligence claim.
1. Duty
“A duty is a threshold question in any negligence case. Whether a duty exists presents a
question of law which depends on the relationship between the parties and the general risks
involved in the common undertaking.” McClure v. Sunshine Furniture, 283 P.3d 323, 328
(Okla. Civ. App. 2012), as corrected (June 13, 2012) (citing Wofford, 795 P.2d at 518). “If a
defendant does not owe a duty of care to the plaintiff, there can be no liability for negligence as a

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matter of law.” Lowery v. Echostar Satellite Corp., 160 P.3d 959, 964 (Okla. 2007). A duty can
be grounded in “contract or some special relationship,” or it can be grounded in “general
principles of the law of negligence.” Id.
The issue of whether a third-party auditor of a produce packinghouse owes a duty to
ultimate consumers of the food processed therein is an issue of first impression in Oklahoma. In
the absence of an authoritative pronouncement from a state’s highest court, a federal court’s task
under the Erie doctrine is to predict how the state’s highest court would rule if presented with the
same case. See Wade v. EMCASCO Ins. Co., 483 F.3d 657, 666 (10th Cir. 2007). The federal
court “must follow the decisions of intermediate state courts in the absence of convincing
evidence that the highest court of the state would decide differently.” Stoner v. New York Life
Ins. Co., 311 U.S. 464, 467 (1940). To predict how the state’s highest court would rule, the
federal court “may seek guidance from decisions rendered by lower courts in the relevant state,
appellate decisions in other states with similar legal principles, district court decisions
interpreting the law of the state in question, and ‘the general weight and trend of authority’ in the
relevant area of law.” Wade, 483 F.3d at 666 (citations and internal quotation marks omitted).
The Court’s analysis is guided by these principles.
a. Duty Based on General Principles of Negligence Law
The existence of a duty based on general principles of negligence law were explained by
the Oklahoma Supreme Court in Lowery v. Echostar Satellite Corporation:
We have long recognized that without regard to the relationship of the parties, a
person owes a duty of care to another person whenever the circumstances place
the one person in a position towards the other person such that an ordinary
prudent person would recognize that if he or she did not act with ordinary care
and skill in regard to the circumstances, he or she may cause danger of injury to
the other person. We have explained that a duty of care may arise from a set of
circumstances which would require the defendant to foresee the particular harm to
the plaintiff.
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160 P.3d at 964 (citation and emphasis added). This duty is not grounded in any contractual or
special relationship of the parties, but in the relationship created by the specific circumstances
that are presented and known to the alleged tortfeasor.
In determining whether this common law duty applies, courts must weigh the following
policy considerations: “1) foreseeability of harm to the plaintiff, 2) degree of certainty of harm to
the plaintiff, 3) moral blame attached to defendant’s conduct, 4) need to prevent future harm, 5)
extent of the burden to the defendant and consequences to the community of imposing the duty
on defendant, and 6) availability of insurance for the risk involved.” Id. at 966 n.4. The most
important consideration in determining the existence of a duty of care is foreseeability of harm to
the plaintiff. Id. Significantly, “[f]oreseeable risk of harm that will lead to protection will not
generally be extended beyond reason and good sense.” Id. at 964 (citing Rose v. Sapulpa Rural
Water Co., 631 P.2d 752, 757 (Okla. 1981)). “The foreseeability component of duty is different
than the foreseeability element of proximate cause. The latter is concerned specifically with
whether and to what extent the defendant’s conduct foreseeably and substantially caused the
injury that occurred.” McClure, 283 P.3d at 329 (citing Delbrel v. Doenges Bros. Ford., Inc.,
913 P.2d 1318, 1322 (Okla. 1996)).
The primary determination for the Court is whether Plaintiff’s injury was foreseeable to
the auditor at the time the allegedly negligent audit was conducted. The idea of foreseeability,
while a relatively simple concept, it is inherently difficult to quantify and apply. As one scholar
explained,
[t]he universe, cosmology suggests, is comprised largely of “dark matter,”
invisible stuff ubiquitously binding all things together. Lurking deep inside the
law of tort, permeating and connecting its various components, a vital ingredient
defines and gives moral content to the law of negligence, controlling how each
element fits together and, ultimately, whether one person is bound to pay another
for harm. Foreseeability is the dark matter of tort. …
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For a person’s actions to be wrongful, the person must have had a choice between
alternative courses of action and also must have chosen, by some standard,
incorrectly. If an actor chooses to act in a manner that violates some community
norm of proper behavior, tort law holds the actor accountable for harmful
consequences that result from that choice. Thus, tort responsibility normally
implies that the actor ought to have considered and chosen to avoid the kind of
harm he caused—that he or she wrongfully failed to avoid the harm. So,
ascribing moral character (blame or praise) to a choice to risk or avoid the risk of
harm implies the actor’s ability to conceive (“foresee”) its consequences.
Foreseeability thus is bound up, inextricably, in notions of both wrongfulness and
how far responsibility for wrongfulness should extend.
David G. Owen, Figuring Foreseeability, 44 WAKE FOREST L. REV. 1277 (2009) (footnotes
omitted); see also William H. Hardie, Jr., Foreseeability: A Murky Crystal Ball for Predicting
Liability, 23 CUMB. L. REV. 349 (1993).
After careful consideration of the circumstances of this case and the policy considerations
outlined above, the Court finds that Primus owed no duty to Plaintiff in conducting the July 25,
2011 Audit pursuant to general principles of negligence law. At the outset, the Court finds
Plaintiff’s allegations insufficient to establish that Plaintiff’s injuries were the foreseeable result
of negligently performing the July 25, 2011 Audit more than a month prior to Plaintiff’s injury.
Further, the Court finds the connection between the July 25, 2011 Audit and the onset of
Plaintiff’s illness to be too remote in both time and circumstance. Significantly, Plaintiff has
failed to plead facts sufficient to establish that the contaminated cantaloupe would not have been
distributed if Primus had given Jenson Farms unsatisfactory audit results. 1 To impose a duty on
auditors absent a showing that such auditors maintained some control over the distribution of the
manufactured goods would be illogical and impose an unreasonable burden on third-party
1

In his opposition brief, Plaintiff asserts Frontera would have been prevented from distributing the contaminated
cantaloupe upon receipt of negative audit results because Defendant Frontera required that its suppliers be “Primus
Certified.” (Doc. No. 93, 22-23.) These factual assertions are not contained in Plaintiff’s SAC and, therefore,
cannot be considered by the Court for purposes of evaluating Primus’ Motion to Dismiss. See Casanova v. Ulibarri,
595 F.3d 1120, 1125 (10th Cir. 2010); Gossett v. Barnhart, 139 F.App’x 24, 24 (10th Cir. 2005) (unpublished) (“In
ruling on a motion to dismiss, the district court is limited to the facts pled in the complaint.”); Carter v. Daniels, 91
F.App’x 83 (10th Cir. 2004) (unpublished) (“When ruling on a Rule 12(b)(6) motion, the district court must
examine only the plaintiff's complaint.”).

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auditors. Accordingly, Plaintiff’s allegations have failed to establish a duty owed to Plaintiff by
Primus based on general principles of negligence law.
c. Restatement (Second) of Torts § 311
Plaintiff contends that Primus owed Plaintiff a duty under Restatement (Second) of Torts
§ 311, which recognizes a claim for negligent misrepresentation resulting in physical harm.
Section 311 provides,
One who negligently gives false information to another is subject to liability for
physical harm caused by action taken by the other in reasonable reliance upon
such information, where such harm results (a) to the other, or (b) to such third
persons as the actor should expect to be put in peril by the action taken. Such
negligence may consist of failure to exercise reasonable care (a) in ascertaining
the accuracy of the information, or (b) in the manner in which it is communicated.
Restatement (Second) of Torts § 311 (1965) (emphasis added). For context,
[t]he Restatement gives as an illustration a truck driver who signals to a following
car that it is safe to pass. In reliance on that signal a car proceeds and collides with
an oncoming vehicle. The signaling truck driver’s principal is subject to liability
to the injured occupants in the passing vehicle.
Williams v. Tulsa Motels, 958 P.2d 1282, 1288 (Okla. 1998). Here, even assuming this provision
was applicable to the facts this case, Plaintiff has failed to allege facts sufficient to establish that
any action was taken in reasonable reliance on Primus’ audit. Accordingly, the Court finds that
Restatement (Second) of Torts § 311 does not impose a duty on Primus under the circumstances
of this case.
c. Restatement (Second) of Torts § 324A
Plaintiff also contends that Restatement (Second) of Torts § 324A creates a duty of care
under the circumstances of this case. Section 324A of the Restatement (Second) of Torts
provides that,
[o]ne who undertakes, gratuitously or for consideration, to render services to
another which he should recognize as necessary for the protection of a third
person or his things, is subject to liability to the third person for physical harm
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resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or (b)
his undertaking to perform a duty owed by the other to the third person, or (c) the
harm is suffered because of reliance of the other or the third person upon the
undertaking.
Truitt v. Diggs, 611 P.2d 633, 636 (Okla. 1980). Section 324A reflects the common law “Good
Samaritan” Doctrine. “Under this doctrine, once one assumes the duty to act towards a particular
person, and engenders reliance thereon by that person, there is then a legal obligation to act with
care and an obligation not to worsen the situation.” Black Hills Aviation, Inc. v. United States,
34 F.3d 968, 977 (10th Cir. 1994) (citing Restatement (Second) of Torts §§ 323, 324, 324A).
While Oklahoma has not applied 324A to a case analogous to the instant action, other
courts have applied these provisions in cases involving persons who negligently conduct safety
inspections. 2 MADDEN & OWEN ON PROD. LIAB. § 19:8 (3d ed.). Courts are split on the issue of
whether such inspectors have a duty or liability to third parties “with whom they are not in
privity of contract, for injuries arising out of negligent inspections.” Id. (collecting cases).
Essentially, “the extent of a safety inspector’s duty to third parties is dependent on the extent to
which a jurisdiction has expanded the tort law duties of persons contracting to perform services
for others to include the prevention of risk of harm to third parties foreseeably placed at risk by
the negligent performance of an inspection undertaking.” Id.
Significantly, “Oklahoma courts have found that §§ 323 and 324A impose a duty where
the plaintiff and defendant have a relationship that inherently implicates safety and protection.”
Frey v. AT&T Mobility, LLC, 379 F. App’x 727, 729 (10th Cir. 2010) (unpublished) (citing Lay
v. Dworman, 732 P.2d 455, 459–60 (Okla. 1986) (landlord has § 323 duty to minimize
predictable security risks to his tenants); Truitt, 611 P.2d at 636–37 (security company owes §
324A duty to parents when formulating recommendations regarding school security); Wiles v.
Grace Petroleum Corp., 671 P.2d 682, 687 (Okla. Civ. App. 1983) (employer has § 324A duty
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to maintain worksite security)). This action, however, does not involve the type of physical
security concerns generally present in cases applying Oklahoma law where a duty is premised on
§§ 323 and 324A.

Thus, the Court must determine whether these provisions should be

interpreted to apply to the circumstances of this case.
The Court is guided by the maxim that federal courts should not expand state law in the
absence of clear guidance from the state’s highest court. See Taylor v. Phelan, 9 F.3d 882, 887
(10th Cir. 1993); Schrock v. Wyeth, Inc., 727 F.3d 1273, 1284 (10th Cir. 2013). Plaintiff asks
this Court to “expand the scope of tort liability under Oklahoma law by imposing a duty under
entirely unprecedented circumstances” pursuant to §§ 323 and 324A. Schrock, 727 F.3d at 1284.
This novel application of §§ 323 and 324A is “not supported by ‘decisions rendered by lower
courts in the relevant state’ or ‘district court decisions interpreting the law of the state in
question.’” Id. (quoting Wade, 483 F.3d at 666). Consequently, the Court finds that §§ 323 and
324A are inapplicable to the circumstances of this case.
Nevertheless, even if §§ 323 and 324A applied to the instant action, Plaintiff still would
be unable to recover under these provisions because Plaintiff has failed to allege facts sufficient
to establish that Jenson Farms relied on the Primus audit or that such reliance increased the risk
of harm. In Truit v. Diggs, the parents of a student fatally shot on school grounds brought a
wrongful death action against the school board, its employees, and an independent contractor
that had conducted a management study and made recommendations as to the necessity and
adequacy of existing and future security systems within the school system. See 611 P.2d 633.
The Oklahoma Supreme Court affirmed the district court’s dismissal of the claim against the
independent contractor because there was no showing in the pleadings regarding what
recommendations had been made by the contractor or what action had been taken by the school

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board in reliance upon the contractor that might have increased the risk of harm to the student.
Id. at 637. After carefully reviewing the facts contained in the SAC, the Court finds that Plaintiff
has failed to allege facts sufficient to establish that Jenson Farms relied on the Primus audit or
that such reliance increased the risk of harm. Accordingly, the Court finds that Plaintiff cannot
recover under §§ 323 and 324A.
d. Duty Arising from Contractual Relationship
A duty may arise based on a contractual relationship and “is to be measured by the nature
and scope of the contractor’s contractual undertaking … .” Copeland v. Admiral Pest Control
Co., 933 P.2d 937, 939 (Okla. 1996). Oklahoma law imposes a duty to render performance of a
contract in a negligent-free manner. See id. Although Plaintiff is not a party to the Audit
Contract, he contends that Primus owed him a duty based on his status as a third-party
beneficiary.
The Oklahoma Supreme Court has outlined the following test for determining whether a
party is a third-party beneficiary of a contract:
As a general proposition, the determining factor as to the right of a third party
beneficiary is the intention of the parties who actually made the contract. The real
test is said to be whether the contracting parties intended that a third person
should receive a benefit which might be enforced in the courts. Thus, it is often
stated that the contract must have been intended for the benefit of the third person
in order to entitle him to enforce it.
G.A. Mosites Co. of Ft. Worth, Inc. v. Aetna Cas. & Sur. Co., 545 P.2d 746, 749 (Okla. 1976).
Further, a person “need not be a party to or named in the contract to occupy third-party
beneficiary status.” Shebester v. Triple Crown Insurers, 974 F.2d 135, 138 (10th Cir. 1992).
In discerning the parties’ intent, a court must consider “the terms of the contract as a
whole, construed in the light of the circumstances under which it was made and the apparent
purpose that the parties are trying to accomplish.” G.A. Mosites Co. of Ft. Worth, Inc., 545 P.2d
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at 749; see also Shebester, 974 F.2d at 138 (“The question is one of construction of the contract,
determined by the terms of the contract.”). Indeed, “the contract must be made ‘expressly’ for
the third party’s benefit, which ‘means in an express manner; in direct or unmistakeable [sic]
terms; explicitly; definitely; directly.’” Colony Ins. Co. v. Burke, 698 F.3d 1222, 1230 (10th Cir.
2012) (citing Keel v. Titan Const. Corp., 639 P.2d 1228, 1231 (Okla. 1981); OKLA. STAT. tit. 15,
§ 29 (“A contract, made expressly for the benefit of a third person, may be enforced by him at
any time before the parties thereto rescind it.”)). However, “[t]he benefit cannot be enforced if it
has to be implied from the terms of the contract or results incidentally from its performance.”
Oil Capital Racing Ass’n, Inc. v. Tulsa Speedway, Inc., 628 P.2d 1176, 1179 (Okla. Civ. App.
1981).
Under the circumstances of this case, the Court finds that Plaintiff was not a third-party
beneficiary to the Audit Contract. Plaintiff cannot establish that the performance of the audit
contract was expressly for his benefit. At most, the allegations in the SAC establish that Primus’
performance under the contract was for the benefit of Jenson Farms, who had legal and
commercial incentives associated with the quality and safety of its produce. Consequently,
Plaintiff was merely an incidental beneficiary of Primus’ performance under the contract. See
Copeland, 933 P.2d at 939. Therefore, Primus owed no duty to Plaintiff based on the Audit
Contract.
2. Causation
As outlined above, the Court finds that Primus owed no duty to Plaintiff in conducting
the July 25, 2011 Audit of the Jenson Farms’ packinghouse. Even if Primus owed a duty to
Plaintiff, the Court finds that Plaintiff cannot establish that his injuries were caused by Primus’
allegedly negligent performance of the July 25, 2011 Audit. “Although causation is generally a

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question of fact, ‘the question becomes an issue of law when there is no evidence from which a
jury could reasonably find the required proximate, causal nexus between the careless act and the
resulting injuries.’” Gaines-Tabb v. ICI Explosives, USA, Inc., 160 F.3d 613, 620 (10th Cir.
1998) (quoting Henry v. Merck and Co., 877 F.2d 1489, 1495 (10th Cir. 1989)).
“Failure to establish that the defendant’s negligence was the proximate cause of the
harmful event is fatal to [a] plaintiff’s [negligence] claim.” Thompson v. Presbyterian Hospital,
Inc., 652 P.2d 260, 263 (Okla. 1982). There are two parts to proximate cause: cause in fact and
legal causation. Cause in fact “refers to everything which contributed to a result, which would
not have occurred without” a defendant’s negligence. Brewer v. Murray, 292 P.3d 41, 53 (Okla.
Civ. App. 2012). However, liability for negligent conduct is further limited by legal causation.
Lang v. Herrera, 2013 WL 4500739 (N.D. Okla. Aug. 21, 2013). Legal causation cuts off a
defendant’s liability for tenuous acts, which means plaintiffs must prove that their injuries are
“the result of both the natural and probable consequences of the primary negligence,” or that
their injuries were foreseeable. Lockhart v. Loosen, 943 P.2d 1074, 1079 (Okla. 1997) (emphasis
original). The proximate cause of an event “is that which in a natural and continuous sequence,
unbroken by an independent cause, produces the event and without which the event would not
have occurred.” Id. at 1079 n. 14 (internal quotations omitted).
Under the circumstances of this case, the Court finds that Plaintiff has failed to allege
facts sufficient to demonstrate a causal connection between the allegedly negligent July 25, 2011
Audit and the Plaintiff’s injury. Significantly, Plaintiff cannot demonstrate that Primus’ audit
was the cause in fact, also known as but-for causations, of his injury. “As a general rule, a
plaintiff demonstrates but-for causation by showing that his injury would not have been
sustained absent the defendant’s negligence, and there can be multiple but-for causes of a

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plaintiff’s injury.” Wilcox v. Homestake Mining Co., 619 F.3d 1165, 1173 (10th Cir. 2010)
(citing Restatement (Second) of Torts § 432). Here, Plaintiff has failed to allege any facts
suggesting that a properly performed audit would have halted distribution of the contaminated
cantaloupe, thereby averting Plaintiff’s injury. As explained above, the SAC does not contain
any facts allowing the Court to infer that Primus had the authority to prevent distribution of the
cantaloupe or that the contaminated cantaloupe would not been distributed in the event of
unsatisfactory audit results. Accordingly, because Plaintiff has failed to plead facts sufficient to
establish a causal nexus between Primus’ alleged negligent audit and Plaintiff’s injury, Plaintiff’s
negligence claim based on the July 25, 2011 Audit must be dismissed.
B. Negligence in Hiring, Selection, and Monitoring
The Court also finds that Plaintiff’s negligent hiring, selection, and monitoring claim
against Primus must be dismissed. First, the Court finds Plaintiff’s conclusory allegations
insufficient to satisfy the pleading standards set out in Fed. R. Civ. P. 8(a). The SAC contains no
allegations from which to infer that Primus breached its duty to exercise reasonable care in hiring
and supervising its agents. Plaintiff asserts that the “alleged facts describing a poorly conducted
audit, with the factual backdrop of an FDA investigation conducted one-and-a-half months later
that heavily criticized many of the practices and conditions that Mr. Dilorio had previously found
in ‘total compliance’” are sufficient to establish “training deficiencies.” (Doc. No. 93, 22.) The
Court disagrees.
As explained in N.H. v. Presbyterian Church (U.S.A.), 998 P.2d 592, 600 (1999),
[e]mployers may be held liable for negligence in hiring, supervising or retaining
an employee. In such instances, recovery is sought for the employer’s negligence.
The claim is based on an employee’s harm to a third party through employment.
An employer is found liable, if—at the critical time of the tortious incident—, the
employer had reason to believe that the person would create an undue risk of
harm to others. Employers are held liable for their prior knowledge of the
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servant’s propensity to commit the very harm for which damages are sought. …
The critical element for recovery is the employer’s prior knowledge of the
servant’s propensities to create the specific danger resulting in damage.
(Emphasis added). Here, Plaintiff failed to allege any facts concerning Primus’ prior knowledge
of its agents’ propensities to perform negligent safety audits. Thus, the factual allegations
contained in the SAC are insufficient to state a claim for negligent hiring, selection, and
monitoring.
Further, even if Plaintiff’s allegations regarding Primus’ prior knowledge of its agents’
dangerous propensities were sufficient, Plaintiff’s negligent hiring, selection, and monitoring
claim would nevertheless be dismissed.

As explained above, Plaintiff’s allegations are

insufficient to establish a causal link between the allegedly negligently performed July 25, 2011
Audit and Plaintiff’s injuries.

Accordingly, Plaintiff’s negligent hiring, selection, and

monitoring claim must be dismissed.
C. Leave to Amend Complaint
Plaintiff also requests leave to amend his Complaint.

Under Fed. R. Civ. P.

15(a)(1)(A)(B) a party may freely amend its complaint within “21 days after serving it, or if the
pleading is one to which a responsive pleading is required, 21 days after service of a responsive
pleading or 21 days after service of a motion ... whichever is earlier.” At all other times, a party
must seek leave of the court to amend its pleading. Fed. R. Civ. P. 15(a)(2). “When a party files
a proper motion for leave to amend, rule 15(a) further provides ‘leave shall be freely given when
justice so requires.’” Calderon v. Kan. Dep’t of Soc. & Rehab. Servs., 181 F.3d 1180, 1185
(10th Cir. 1999) (quoting Fed. R. Civ. P. 15(a)). Generally, a party must file a motion to amend
before the court will grant leave to amend. Id. at 1185–86. Where a party does not file a formal
motion to amend its pleading, the Tenth Circuit provides that “a request for leave to amend must
give adequate notice to the district court and to the opposing party of the basis of the proposed
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amendment before the court is required to recognize that a motion for leave to amend is before
it.” Id. at 1186–87. However, a request made in a response to a motion to dismiss “that leave be
given to the Plaintiffs to amend their Complaint,” Glenn v. First Nat’l Bank, 868 F.2d 368, 370
(10th Cir. 1989), is simply not enough to merit consideration. Calderon, 181 F.3d at 1186.
The Court finds that Plaintiff’s request for leave to amend is insufficient under the
standards outlined above. Plaintiff failed to file a motion for leave to amend, and his only
request for leave to amend came at the end of his Response to Primus’ Motion to Dismiss.
Plaintiff’s entire request stated: “In the alternative, and if the Court is inclined to grant Primus’s
Motion, Plaintiff requests that the Court give him leave to amend.” (Doc. No. 93, 26.) Applying
Calderon, Plaintiff’s bare request for leave to amend at the end of a response to another motion
is not sufficient for Rule 15(a)(2). See 181 F.3d at 1186. Furthermore, Plaintiff’s request for
leave fails to comply with LCvR 7.1(f), which provides that “[a] response to a motion may not
also include a motion or a cross-motion made by the responding party.” Therefore, Plaintiff’s
request for leave must be STRICKEN. 2
CONCLUSION
For the reasons detailed above, Defendants’ Motion to Dismiss (Doc. No. 21) is
GRANTED.
Dated this 31st day of December, 2013.

2

The Court also notes that even if leave were granted, it is unlikely the Plaintiff could allege facts sufficient to
support viable claims against Primus.

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