Brown et al v. Cobb Vantress Grand Meadows et al

Filing 13

ORDER denying 9 Motion to Dismiss; denying as moot 12 Motion to Submit Additional Exhibits. Signed by Honorable Timothy D. DeGiusti on 4/25/2011. (mb, )

IN THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF OKLAHOMA
JACKIE LEE BROWN and EMILY
BROWN,
Plaintiffs,
vs.
COBB VANTRESS GRAND MEADOWS,
a/k/a COBB-VENTRESS, INC.; and
TYSON FOODS, INC.,
Defendants.

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Case No. CIV-11-217-D

ORDER
Before the Court is Defendants’ Motion to Dismiss [Doc. No. 9], filed pursuant to Fed. R.
Civ. P. 12(b)(6). Defendants seek the dismissal of this removed action based on the failure of
Plaintiffs’ pleading to state a claim within the narrow exception to the exclusivity provision of the
Oklahoma Workers’ Compensation Act, Okla. Stat. tit. 85, § 12, as recognized in Parret v. Unicco
Service Co., 127 P.3d 572 (Okla. 2005), under the currently applicable federal pleading standard.
The Motion also notes a lack of factual allegations to establish a basis for liability of Defendant
Tyson Foods, Inc. for a workplace injury suffered by an employee of Defendant Cobb-Vantress,
Inc.
Plaintiffs have responded to the Motion by requesting leave to amend their pleading.
Plaintiffs recognize that their state-court pleading may not satisfy the federal standard articulated
in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937,
1949 (2009). However, because they previously amended their pleading once before removal, they
acknowledge that leave of court to file a second amendment may be required under Fed. R. Civ.
P. 15(a). As to Defendant Tyson Foods, Inc., Plaintiffs initially responded with a request for a 90-

day period of discovery regarding facts showing the relationship between the two defendants.
During the pendency of the Motion, however, Plaintiffs also filed a motion requesting leave to
supplement their response with exhibits consisting of newly obtained documents that, according to
Plaintiffs, “show that the Defendant Tyson exercised control over Cobb Vantress.” See Pls.’ Appl.
Submit Additional Exhibits [Doc. No. 12], ¶ 2. The Court finds that no exhibits are needed to decide
Defendants’ Motion, which challenges only the sufficiency of Plaintiffs’ pleading to state a claim
upon which relief can be granted. The materials proposed for submission are not ones that can
properly be considered under Rule 12(b)(6). See Pace v. Swerdlow, 519 F.3d 1067, 1072 (10th Cir.
2008).
Defendants’ position in their reply brief is that Plaintiffs should be denied permission to
amend their pleading and should be denied an opportunity for discovery before filing an adequate
pleading. Defendants contend that the proposed amendment – that is, a First Amended Complaint
submitted with Plaintiffs’ response brief – would be futile because it also fails to allege sufficient
facts to satisfy the “substantial certainty” standard established in Parret. Defendants also argue that
a plaintiff who fails to state a claim “is not entitled to discovery to attempt to ferret out a cause of
action.” See Defs.’ Reply Br. [Doc. No. 11] at 4.
While the Court agrees with Defendants that discovery should not precede the filing of a
sufficient pleading, the Court is not persuaded that Plaintiffs should be denied an opportunity to
plead a cognizable claim. It is well established that leave to amend under Rule 15(a)(2) “is to be
freely granted.” See Polin v. Dun & Bradstreet, Inc., 511 F.2d 875, 877 (10th Cir. 1975); see also
Foman v. Davis, 371 U.S. 178, 182 (1962). Defendants correctly state that an opportunity for
amendment may be denied based on futility, that is, “[w]here a complaint, as amended, would be
subject to dismissal,” Mountain View Pharmacy v. Abbott Laboratories, 630 F.2d 1383, 1389 (10th
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Cir. 1980); or could not withstand a motion to dismiss. See Schepp v. Fremont County, 900 F.2d
1448, 1451 (10th Cir. 1990). In this case, Plaintiffs’ response brief suggests the existence of
additional facts beyond those contained in either their current pleading or their initially proposed
amendment, and on which they may rely to state a claim against both Defendants under the Parret
standard. Defendants may be correct that Plaintiffs will be unable to do so, but the Court believes
they should be allowed to try. Then, any deficiency in a subsequent pleading can be challenged by
a separate motion directed at the particular allegations of the amendment. In that event, the Court
will be in a better position to assess the sufficiency of Plaintiffs’ allegations with assistance of the
parties’ briefs, which can specifically address the amended allegations.
For these reasons, the Court finds that Plaintiffs should be permitted to further amend their
pleading in order to satisfy, if they can, the federal pleading standard by which their amended
complaint must be judged.
IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss [Doc. No. 9] is
DENIED, without prejudice to resubmission. Plaintiffs may file an amended pleading within
15 days from the date of this Order.
IT IS FURTHER ORDERED that Plaintiffs’ Application to Submit Additional Exhibits to
Their Response to Defendants’ Motion to Dismiss [Doc. No. 12] is DENIED as moot.
IT IS SO ORDERED this 25th day of April, 2011.

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