Gordon v. Robbins et al

Filing 20

MEMORANDUM (Order to follow as separate docket entry). Signed by Chief MJ Daryl F. Bloom on 8/30/24. (ae)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JAMES GORDON,
Plaintiff,
v.
KYLE ROBBINS, et al.,
Defendants.

: Civil No. 1:23-CV-02149
:
:
:
: (Chief Magistrate Judge Bloom)
:
:
:
:

MEMORANDUM OPINION
I.

Introduction
Before the Court is a motion to dismiss Count IV of Plaintiff James

Gordon (“Plaintiff”)’s amended complaint, filed by Defendant BBL Fleet
Company (“BBL Fleet”), pursuant to Rule 12(b)(6) of the Federal Rules
of Civil Procedure. (Doc. 5.) For the reasons set forth below, the Court
will grant the motion and dismiss Count IV of Plaintiff’s amended
complaint. However, the Court will grant Plaintiff leave to amend his
pleading.

II.

Background
A. Procedural Background
On November 8, 2023, Plaintiff, a citizen of Maryland, filed a

complaint against Defendants BBL Fleet and Kyle Robbins (“Robbins”),
citizens of Pennsylvania, in the Court of Common Pleas of York County,
Pennsylvania (the “York County action”), as a result of a motor vehicle
accident that took place on January 5, 2022, on Interstate 83 in York
County, Pennsylvania. (Doc. 2-3 at 1–12.) Two days later, on November
10, 2023, Plaintiff filed an amended complaint in the York County action,
adding Defendant CentiMark Corporation (“CentiMark”), a citizen of
Pennsylvania, as a defendant. (Doc. 2-1.)
On December 27, 2023, based upon the diversity of citizenship of the
parties, Defendant CentiMark filed a notice of removal (Doc. 1) and a
corresponding declaration (Doc. 2), transferring the York County action
to the United States District Court for the Middle District of
Pennsylvania. As reflected by this Court’s docket, all of the parties have
been served with Defendant CentiMark’s notice of removal, and none of
the parties have challenged its removal to this Court. Further, the Court
is satisfied that the requirements of diversity jurisdiction have been
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met.1 Additionally, and as further reflected by this Court’s docket, all
parties have consented to proceed before a United States Magistrate
Judge. (Doc. 15 (assigning this action to the undersigned on May 28,
2024).)
Since removal of the action to this Court, Defendant BBL Fleet has
filed a motion to dismiss Count IV of Plaintiff’s amended complaint
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (Doc. 5),
along with a supporting brief (Doc. 8), and Defendants Robbins and
CentiMark have filed answers with affirmative defenses to Plaintiff’s
amended complaint (Docs. 6, 14). After receipt of those filings, the Court

As explained by the United States Court of Appeals for the Third
Circuit, “[m]ost rules of citizenship are well established[:]” “a natural
person is deemed to be a citizen of the state where he is domiciled[;]” and
“[a] corporation is a citizen both of the state where it is incorporated and
of the state where it has its principal place of business.” Lincoln Ben. Life
Co. v. AEI Life, LLC, 800 F.3d 99, 104 (3d Cir. 2015) (footnote, citation,
and internal quotation marks omitted)). As set forth in Defendant
CentiMark’s notice of removal, Plaintiff is an adult individual who
resides in Bel Air, Maryland; Defendant Robbins is an adult individual
who resides in Etters, Pennsylvania; and Defendants CentiMark and
BBL Fleet are businesses incorporated under the laws of the
Commonwealth of Pennsylvania, with principal places of business in
Pennsylvania. (Doc. 1 ¶¶ 8–11). As such, Plaintiff is not a citizen of the
same state as any Defendant. See id. (explaining that, for purposes of
diversity jurisdiction, “no plaintiff [may] be a citizen of the same state as
any defendant” (footnote, citation, and internal quotation marks
omitted)).
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held a telephonic conference with the parties to discuss case management
deadlines that would govern this action going forward. See (Doc. 16). In
connection with that telephonic conference, the Court issued an Order on
June 18, 2024, setting forth a schedule of case management deadlines,
including a close of fact discovery deadline of December 31, 2024, and a
dispositive motions deadline of April 30, 2025. (Doc. 19.)
Thus, the only issue for resolution before the Court is Defendant
BBL Fleet’s motion to dismiss Count IV of Plaintiff’s amended complaint.
(Doc. 5.) That motion, which has been briefed by the parties (Docs. 8, 9),
is ripe for the Court’s resolution.2

Before proceeding to the factual background in this matter, the Court
notes that, according to Defendant BBL Fleet’s motion to dismiss and
supporting brief, see, e.g., (Docs. 5 at 2 n.1; 8 at 3 n.2), Plaintiff filed a
second amended complaint in the York County action after Defendant
CentiMark had removed the action to this Court. However, because
Plaintiff did not file a second amended complaint in this Court, any
argument seemingly related to a second amended complaint filed in the
York County action will not be addressed. See, e.g., (Doc. 9 (containing
Plaintiff’s response to Defendant BBL Fleet’s motion to dismiss, wherein
Plaintiff discusses a second plaintiff (i.e., Nicole Robbins), an additional
claim (i.e., loss of consortium), and argument not relevant to the pending
motion to dismiss (i.e., argument concerning recklessness and punitive
damages)).
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B. Factual Background
The Court sets forth the factual background of this matter as it is
relevant to the resolution of Defendant BBL Fleet’s motion to dismiss
Count IV in Plaintiff’s amended complaint. Further, the Court derives
that factual background from the allegations set forth in Plaintiff’s
amended complaint. More specifically, Plaintiff alleges that, on January
5, 2022, at approximately 5:23 p.m., Defendant Robbins, while under the
influence of alcohol, negligently and recklessly operated his motor vehicle
on Interstate 83 in York County, Pennsylvania, and struck Plaintiff’s
vehicle, causing Plaintiff various injuries and damages. (Id. ¶¶ 5–8, 11–
13, 15–19); see also (id. ¶ 12 (alleging, inter alia, that Defendant Robbins
was later sentenced to “11 months and 15 days to 23 months for
Aggravated Assault by Vehicle While DUI and 1 year and 6 months to 7
years for DUI: Highest Rate of Alc. (BAC .16+) 3rd offense”)).
In addition, Plaintiff asserts that, on the day of the accident,
Defendant Robins was employed by, and was in the course and scope of
his duties for his employer, Defendant CentiMark. (Id. ¶¶ 24–26.)
Plaintiff also asserts that Defendant BBL Fleet owned and supplied the
vehicle—that was operated by Defendant Robbins on the day of the
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accident—to Defendant CentiMark. (Id. ¶¶ 32–33.) In support of this
latter assertion, Plaintiff alleges that: Defendant BBL Fleet had entered
into an agreement with Defendant CentiMark to lease numerous vehicles
to Defendant CentiMark; Defendant BBL Fleet negligently entrusted
their vehicles to Defendant Centimark without ascertaining who would
be operating their vehicles; and Defendant BBL Fleet breached their
agreement by failing to institute a policy of oversight into who would be
operating their leased vehicles. (Id. ¶¶ 34–37.)
In connection with these allegations, Plaintiff asserts four counts in
his amended complaint: Count I, a negligence claim against Defendant
Robbins; Count II, a demand for punitive damages against Defendant
Robbins; Count III, a negligent entrustment claim against Defendant
CentiMark; and Count IV, a negligent entrustment claim against
Defendant BBL Fleet. (Id. ¶¶ 14–31.) For relief, Plaintiff seeks, inter

alia, monetary damages. (Id. at 6–11.)
III.

Legal Standard
Rule 12(b)(6) of the Federal Rules of Civil Procedure permits the court

to dismiss a complaint if the complaint fails to state a claim upon which
relief can be granted. Fed. R. Civ. P. 12(b)(6). Under federal pleading
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standards, a complaint must set forth a “short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2).
In determining whether a complaint states a claim for relief under
this pleading standard, a court must accept the factual allegations in the
complaint as true, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007), and accept “all reasonable inferences that can be drawn from
them after construing them in the light most favorable to the nonmovant.” Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250,
1261 (3d Cir. 1994). However, a court is not required to accept legal
conclusions or “a formulaic recitation of the elements of a cause of action.”

Id.; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare
recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice”).
As the Third Circuit Court of Appeals has aptly summarized:
[A]fter Iqbal, when presented with a motion to dismiss for
failure to state a claim, district courts should conduct a twopart analysis. First, the factual and legal elements of a claim
should be separated. The District Court must accept all of the
complaint’s well-pleaded facts as true, but may disregard any
legal conclusions. Id. Second, a District Court must then
determine whether the facts alleged in the complaint are
sufficient to show that the plaintiff has a “plausible claim for
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relief.” Id. at 1950. In other words, a complaint must do more
than allege the plaintiff’s entitlement to relief. A complaint
has to “show” such an entitlement with its facts. See Phillips,
515 F.3d at 234–35. As the Supreme Court instructed in Iqbal,
“[w]here the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint
has alleged—but it has not ‘show[n]’—‘that the pleader is
entitled to relief.’ ” Iqbal, 129 S. Ct. at 1949. This “plausibility”
determination will be “a context-specific task that requires
the reviewing court to draw on its judicial experience and
common sense.” Id.

Fowler v. UPMC Shadyside, 578 F.3d 203, 210–11 (3d Cir. 2009).
Generally, when considering a motion to dismiss, a court relies on
the complaint and its attached exhibits, as well as matters of public
record. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). A court
can also consider “undisputedly authentic document[s] that a defendant
attached as an exhibit to a motion to dismiss if the plaintiff’s claims are
based on the [attached] documents.” Pension Benefit Guar. Corp. v.

White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Additionally, if
the complaint relies on the contents of a document not physically
attached to the complaint but whose authenticity is not in dispute, the
court may consider such document in its determination. See Pryor v.

Nat’l Collegiate Athletic Ass’n, 288 F.3d 548, 560 (3d Cir. 2002).

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However, the court may not rely on any other part of the record when
deciding a motion to dismiss. Jordan, 20 F.3d at 1261.
IV. Discussion
Defendant BBL Fleet has filed a motion to dismiss Count IV of
Plaintiff’s amended complaint pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure. (Doc. 5.) Count IV, as mentioned supra, sets
forth a claim for negligent entrustment against Defendant BBL Fleet—
who owned and leased the vehicle to Defendant CentiMark that was
ultimately operated by Defendant Robbins on the day of the accident—
based upon Defendant BBL Fleet’s failure to ascertain who would be
operating the vehicles leased to Defendant CentiMark, and based upon
Defendant BBL Fleet’s failure to institute a policy of oversight as to the
operators of their leased vehicles to Defendant CentiMark. (Doc. 2-1 ¶¶
32–37.)

In moving for dismissal of Count IV, Defendant BBL Fleet

argues, essentially, that neither of these asserted allegations, whether
considered individually or collectively, support a claim for negligent
entrustment against BBL Fleet under Pennsylvania law.3 (Docs. 5, 8.)

The Court presides over this action pursuant to diversity jurisdiction.
As such, the Court must apply the substantive law of Pennsylvania. See
3

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Plaintiff, on the other hand, argues that his amended complaint has
pled facts sufficient to state a claim for negligent entrustment. (Doc. 9.)4
In addition, Plaintiff argues that discovery has not yet commenced and
that, therefore, he “does not know whether the corporate defendants
cooperated with one another in determining who should be driving their
vehicles.” (Id. at 6.) 5 As such, Plaintiff contends that, “[t]o dismiss this
claim against BBL Fleet this early in the litigation risks letting a
responsible defendant out of a case before discovery.” (Id.)
The Court, having reviewed Plaintiff’s allegations, the parties’
arguments, and relevant authority, finds that Plaintiff’s amended

Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938); Burgh v. Borough Council
of Borough of Montrose, 251 F.3d 465, 474 (3d Cir. 2001).
Plaintiff’s response to Defendant BBL Fleet’s motion to dismiss appears
to discuss his second amended complaint referenced by Defendant BBL
Fleet in its filings. (Doc. 9 at 5–6 (containing Plaintiff’s response,
wherein he states that “his second amended complaint” has made a
“prima facie showing that BBL Fleet knew or should have known that
Defendant Robbins had a history of drunk driving and that a search of
his driving record would have shown that”).) As noted supra, however,
Plaintiff has not filed a second amended complaint in this Court, and, as
such, the operative pleading in the matter sub judice is his amended
complaint. The Court will, therefore, consider only the allegations of his
amended complaint.
4

The Court issued a Case Management Order on June 18, 2024, setting
a close of fact discovery deadline for December 31, 2024. Thus, the
discovery period is underway.
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complaint fails to state a claim for negligent entrustment. As an initial
starting point, both Defendant BBL Fleet and Plaintiff agree that
Pennsylvania follows Section 308 of the Restatement (Second) of Torts
with regard to claims for negligent entrustment. See, e.g., (Docs. 8 at 7;
9 at 5). Section 308 provides:
It is negligence to permit a third person to use a thing or to
engage in an activity which is under the control of the actor,
if the actor knows or should know that such person intends
or is likely to use the thing or to conduct himself in the
activity in such a manner as to create an unreasonable risk
of harm to others.
Restatement (Second) of Torts § 308; see also Christiansen v. Silfies, 667
A.2d 396, 400 (Pa. Super. Ct. 1995) (providing that the tort of negligent
entrustment is set forth in Section 308 of the Restatement (Second) of
Torts).
“Accordingly, to prevail on a negligent entrustment claim in [this]
context, a plaintiff must show that the defendant “(1) permitted [a third
party], (2) to operate its [automobile], and (3) that [the defendant] knew
or should have known that [the third party] intended to or was likely to
use the [automobile] in such a way that would harm another.” Schneider

Nat'l Carriers, Inc. v. Syed, No. 17-CV-02383, 2019 WL 183905, at *3
(M.D. Pa. Jan. 14, 2019) (footnote, citations, and internal quotation
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marks omitted); Simpson v. Buchanan, No. 20-CV-02583, 2020 WL
4504444, at *2 (E.D. Pa. Aug. 5, 2020) (setting forth the same three
elements); Whetstone v. Malone Bussing Servs., 19-CV-00071, 2019 WL
1459022, at *3 (W.D. Pa. Apr. 2, 2019) (same). Particularly relevant here,
the third element of a negligent entrustment claim “may be satisfied by
showing that the defendant knew or should have known that the
entrusted driver was an incompetent driver or was intoxicated.”

Schneider, 2019 WL 183905, at * 3 (citations omitted).
Additionally, Pennsylvania courts have found that a lessor of a
motor vehicle will generally not be held liable for the negligence of a
lessee while operating the vehicle. See Jahn v. O'Neill, 475 A.2d 837, 838
(Pa. Super. Ct. 1984) (citing, inter alia, Littles v. Avis Rent-A-Car

System, 248 A.2d 837 (Pa. 1969); Turley v. Kotter, 398 A.2d 699 (Pa.
Super. Ct. 1979)). A lessor may be held liable, however, for his own
negligence in leasing the motor vehicle for use by a person whom the
lessor knows, or has reason to know, is incompetent. Roebuck v. Bensing,
No. 97-CV-5285, 97-CV-7244, 1999 WL 124462, at *7 (E.D. Pa. Feb. 8,
1999) (citing Jahn, 475 A.2d at 838)).

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That said, “Pennsylvania courts have not found an authoritative
duty to investigate driver records owed by a lessor, unless the lessor
affirmatively

assumes

responsibility

from

the

lessee.

Barring

assumption, any duty to investigate the background of hired drivers
remains with the lessee.” Knecht v. Balanescu, 16-CV-00549, 2017 WL
4573796, at *11 (M.D. Pa. Oct. 13, 2017); see also Roebuck, 1999 WL
124462, at *7 (granting summary judgment in favor of the lessor, where
the employee of the lessee was involved in an accident resulting in the
death of a third party, and reasoning that the lessor had no responsibility
regarding the credentials of the lessee’s drivers per the terms of the
parties’ lease agreement).
Guided by this authority, the Court finds that Plaintiff’s amended
complaint fails to state a claim for negligent entrustment against
Defendant BBL Fleet under Pennsylvania law. As discussed supra,
Plaintiff’s amended complaint broadly alleges that, in connection with
Defendant BBL Fleet’s agreement to lease vehicles to Defendant
CentiMark, Defendant BBL Fleet “negligently entrusted their vehicles to
[Defendant CentiMark] without ascertaining who would be operating the
vehicles,” and “breached their agreement by failing to institute a policy
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of oversight into who would be operating their leased vehicles.” (Doc. 21 at 10–11.)
While Plaintiff’s amended complaint references an agreement
between Defendant BBL Fleet and Defendant CentiMark (the
“Agreement”), as well as an alleged breach thereof, Plaintiff’s amended
complaint has not set forth any language from the Agreement or attached
the Agreement to his amended complaint. See (Doc. 2 through 2-3). As
such, the Court does not have the benefit of reviewing the Agreement, or
any language from the Agreement, in connection with its determination
of Defendant BBL Fleet’s motion to dismiss.
Thus, in reviewing the allegations in Plaintiff’s amended complaint,
the Court finds that Plaintiff has neither alleged facts to plausibly
suggest that, per the Agreement, Defendant BBL Fleet had assumed
responsibility from Defendant CentiMark to ascertain or investigate who
would be operating its vehicles, nor alleged facts to plausibly show that
Defendant BBL Fleet knew or should have known that Defendant
Robbins intended or was likely to use its vehicle in a way that would
create an unreasonable risk of harm to another.

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Accordingly, the Court will grant Defendant BBL Fleet’s motion to
dismiss Plaintiff’s negligent entrustment claim for failure to state a claim
upon which relief can be granted. Although Defendant BBL Fleet seeks
dismissal of Count IV with prejudice (Docs. 5, 8), and although Plaintiff
has not requested leave to amend, because the Court concludes that
amendment of Count IV is not clearly futile, the Court will grant Plaintiff
leave to amend his pleading.
IV.

Conclusion
For the foregoing reasons, the Court will grant Defendant BBL Fleet’s

motion to dismiss Count IV in Plaintiff’s amended complaint (Doc. 5), and
the Court will dismiss Plaintiff’s negligent entrustment claim, as set
forth in Count IV against Defendant BBL Fleet. In addition, the Court
will grant Plaintiff leave to amend his pleading.
An appropriate order follows.

Dated: August 30, 2024

s/ Daryl F. Bloom

Daryl F. Bloom
Chief United States Magistrate Judge

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