Air Liquide Mexico S. de R.L. de C.V. v. Talleres Willie, Inc. et al.
Filing
166
MEMORANDUM AND ORDER GRANTING IN PART 152 Defendant's Charles Van Kirk d/b/a Slingshot Pilot Car Services and Claude Joseph Kimmel d/b/a Freedom Pilot Car's MOTION to Dismiss. Counts III and VI of Plaintiffs Air Liquide Mexico S. de R.L. de C.V. and Air Liquide Process and Construction, Inc.'s Third Amended Complaint against Defendants Van Kirk and Kimmel are DISMISSED WITH PREJUDICE for failure to state claims upon which relief can be granted. To the extent, if any, that Defendants' motion seeks dismissal of any other of Plaintiffs' claims, the motion is DENIED. (Signed by Judge Ewing Werlein, Jr) Parties notified. (marflores, 4)
United States District Court
Southern District of Texas
ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
AIR LIQUIDE MEXICO S. de R.L.
§
de C.V. and AIR LIQUIDE PROCESS §
AND CONSTRUCTION, INC.,
§
§
Plaintiffs,
§
§
v.
§
§
TALLERES WILLIE, INC.,
§
BERNARDO AINSLIE, FELIX NINO
§
LEIJA, TRAILBLAZER PILOT CAR
§
SERVICES, LLC, CLAUDE JOSEPH
§
KIMMEL d/b/a FREEDOM PILOT CAR §
SERVICES, CHARLES VAN KIRK
§
d/b/a SLINGSHOT PILOT ESCORT
§
SERVICES, WHEELING EQUIPMENT
§
COMPANY, INC., GEORGE ORTIZ,
§
and CONTRACTORS CARGO COMPANY, §
§
Defendants.
§
December 15, 2015
David J. Bradley, Clerk
CIVIL ACTION NO. H-14-211
MEMORANDUM AND ORDER
Pending is Defendants Charles Van Kirk d/b/a Slingshot Pilot
Car Services and Claude Joseph Kimmel d/b/a Freedom Pilot Car’s
Motion to Dismiss Pursuant to Federal Rule of Civil Procedure
12(b)(6) (Document No. 152).
After carefully considering the
motion,
the
response,
reply,
and
applicable
law,
the
Court
concludes as follows.
I. Background
The background for this action brought by Plaintiffs Air
Liquide Mexico S. de R.L. de C.V. (“ALM”) and Air Liquide Process
and Construction, Inc. (“ALPC”) (collectively “Plaintiffs”) is
recited in the Court’s Orders signed February 18, 2015 (Document
No. 75) and July 31, 2015 (Document No. 130), and need not be
repeated here.
Suffice it to say that after the Fifth Circuit
issued its opinion in In re Wheeler, 612 Fed. App’x 763, 768 n.4
(5th Cir. 2015) (holding that a pilot car does not constitute a
carrier under the Carmack Amendment), the Court vacated its prior
orders
that
dismissed
Plaintiffs’
state
law
claims
against
Defendants Charles Van Kirk d/b/a Slingshot Pilot Car Services
(“Van
Kirk”),
Claude
Joseph
Kimmel
d/b/a
Freedom
Pilot
Car
(“Kimmel”) (collectively “Pilot Car Defendants”), and granted leave
for Plaintiffs to file a Third Amended Complaint (Order dated
August 27, 2015, Document No. 148).
The Pilot Car Defendants now move for partial dismissal of
Plaintiffs’ Third Amended Complaint with respect to (1) Plaintiffs’
claim that the Pilot Car Defendants violated a statutory duty under
Chapter 545 of the Texas Transportation Code (Count III) and
(2) Plaintiffs’ claim that Pilot Car Defendants engaged in a joint
enterprise (Count VI).1
II. Legal Standard
Rule 12(b)(6) provides for dismissal of an action for “failure
1
Document Nos. 152, 162.
Although the motion asks for
dismissal of the Third Amended Complaint, Pilot Car Defendants
later clarified that they seek dismissal of only the two claims
stated. Document No. 162 at 1 of 12.
2
to state a claim upon which relief can be granted.”
12(b)(6).
FED. R. CIV. P.
When a district court reviews the sufficiency of a
complaint before it receives any evidence either by affidavit or
admission, its task is inevitably a limited one.
Rhodes, 94 S. Ct. 1683, 1686 (1974).
See Scheuer v.
The issue is not whether the
plaintiff ultimately will prevail, but whether the plaintiff is
entitled to offer evidence to support the claims.
Id.
In considering a motion to dismiss under Rule 12(b)(6), the
district court must construe the allegations in the complaint
favorably to the pleader and must accept as true all well-pleaded
facts in the complaint.
See Lowrey v. Tex. A&M Univ. Sys.,
117 F.3d 242, 247 (5th Cir. 1997).
To survive dismissal, a
complaint must plead “enough facts to state a claim to relief that
is plausible on its face.”
1955, 1974 (2007).
Bell Atl. Corp. v. Twombly, 127 S. Ct.
“A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the
reasonable
inference
misconduct alleged.”
(2009).
While
a
that
the
defendant
is
liable
for
the
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949
complaint
“does
not
need
detailed
factual
allegations . . . [the] 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, 127 S. Ct. at 1964-65.
3
III. Analysis
A.
Chapter 545 of the Texas Transportation Code
Pilot Car Defendants move to dismiss Plaintiffs’ negligence
claims premised on the allegation that “[Pilot Car] Defendants
violated
any
Transportation
statutory
duty
Code.”2
under
“The
Chapter
primary
545
rule
of
in
the
Texas
statutory
interpretation is that a court must look to the intent of the
legislature and must construe the statute so as to give effect to
that intent.”
CenterPoint Energy Hou. Elec. LLC v. Harris Cty.
Toll Rd. Auth., 436 F.3d 541, 545 (5th Cir. 2006) (citing Union
Bankers Ins. Co. v. Shelton, 889 S.W.2d 278, 280 (Tex. 1994)).
“The Legislature’s intent is determined from the plain and common
meaning of the words used.”
St. Luke’s Episcopal Hosp. v. Agbor,
952 S.W.2d 503, 505 (Tex. 1997).
Chapter 545, which specifically defines the rules for the
operation and movement of vehicles, is found in Subtitle C of
Title 7 of the Transportation Code, which sets out the “Rules of
the Road.”
At the outset of Chapter 545, the term “Operator” is
defined to mean, “as used in reference to a vehicle, a person who
drives or has physical control of a vehicle.”
§ 541.001 (emphasis added).
TEX. TRANSP. CODE ANN.
Thus, the statute defines “operator”
in the singular, implicitly recognizing that a vehicle has one
2
Document No. 162 at 1 of 12.
4
operator at a time who “drives or has physical control” of the
vehicle. Because they were driving or in physical control of their
respective
escort
vehicles,
operator under this section.
each
Pilot
Car
Defendant
was
an
Concommitantly, neither Pilot Car
Defendant was an operator of any vehicle other than his own or of
the tractor pulling the trailer upon which the massive 60 feet long
purification skid was being carried. In other words, neither Pilot
Car Defendant was “driv[ing] or in physical control” of the
tractor/trailer vehicle.
Therefore, any statutory duty the Pilot
Car Defendants owed by virtue of their status as operators under
Chapter 545 arose and pertained only to the operation of their own
escort vehicles.3
Plaintiffs allege that Pilot Car Defendants violated several
sections under Chapter 545.4 In particular, Plaintiffs allege that
the Pilot Car Defendants were statutorily obligated to notify the
3
The parties dispute whether the duties arising under Texas
Transportation Code are delegable.
Document No. 150 ¶ 52;
Document No. 152 at 4 of 9. “As a general rule, when a duty is
imposed by law on the basis of concerns for public safety, the
party bearing the duty cannot escape it by delegating it to an
independent contractor.”
MBank El Paso, N.A. v. Sanchez, 836
S.W.2d 151, 153 (Tex. 1992)); see also RESTATEMENT (2D) OF TORTS § 424,
cmt. a (1965) (“whenever a statute or administrative regulation
imposes a duty upon one doing particular work to provide safeguards
or precautions for the safety of others . . . the employer cannot
delegate his duty to provide such safeguards or precautions to an
independent contractor.”). Here, the rules governing the operation
of a motor vehicle were imposed “on the basis of concerns for
public safety,” and the statutory duties imposed under the Texas
Transportation Code are non-delegable.
4
Document No. 150 ¶ 52.
5
railroad because § 545.255 “requires one who transports ‘heavy
equipment’ to notify the railroad prior to attempting to cross
railroad tracks.”5
While Plaintiffs are correct that § 545.255(b)
imposes a notice requirement on the operator of the vehicle--this
requirement is only imposed on those who operate:
(1)
a crawler-type tractor, steam shovel, derrick,
or roller; and
(2)
any other equipment or structure with:
(A)
a normal operating speed of 10 miles per hour
or less; or
(B)
a vertical body or load clearance of less than
one-half inch per foot of the distance between
two adjacent axles or less than nine inches
measured above the level surface of a roadway.
TEX. TRANSP. CODE ANN. § 545.255(a).
Here, Plaintiffs allege that Felix Nino Leija was operating
the vehicle transporting the skid, and Pilot Car Defendants were
separately operating individual “escort vehicles” that proceeded in
front of and behind the vehicle transporting the skid.6 Plaintiffs
have not alleged that either Pilot Car Defendant was operating a
vehicle described in § 545.255(a), and by its own terms § 545.255
5
Document No. 150 ¶ 52. Under § 545.255(b), “[a]n operator
of a vehicle or equipment may not move on or across a track at a
railroad grade crossing unless the operator has given notice to a
station agent of the railroad and given the railroad reasonable
time to provide proper protection at the crossing.”
6
Document No. 150 ¶¶ 15-17.
6
“applies only” to those specified vehicles.
Defendants
did
not
have
or
violate
a
Thus, the Pilot Car
statutory
duty
under
§ 545.255, and Plaintiffs have failed to state a claim upon which
relief can be granted under § 545.255(b).7
Plaintiffs’ Third Amended Complaint also alleges negligence
per
se
against
the
Pilot
Car
Defendants
for
violations
of
§ 545.051(a), which requires an operator to “drive on the right
half of the roadway”; § 545.056(a), which prohibits an operator
from driving on the left side of the roadway “within 100 feet of an
intersection or railroad grade crossing in a municipality”; and
§ 545.302(a)(8) and (9), which prohibit an operator from stopping,
standing, or parking “on a railroad track” or “where an official
sign prohibits stopping.” Plaintiffs allege that the “load” on the
lowboy trailer was stopped on the tracks and driven on the wrong
side of the road in violation of these statutes,8 but Plaintiffs do
not allege that either of the Pilot Car Defendants violated any of
7
Section
545.255
also
contains
a
penal
sanction,
see § 545.255(e), an additional reason that forecloses Plaintiffs’
argument that the Pilot Car Defendants can be held liable for the
tractor/trailer operator’s statutory violations. “It is a commonlaw ‘maxim that penal statutes should be strictly construed.”
Nautilus Ins. Co. v. Int’l House of Pancakes, Inc., 622 F. Supp.2d
470, 478 (S.D. Tex. 2009) (quoting United States v. Cook, 86 S. Ct.
1412, 1415 (1966)); see also Schwab v. Schlumberger Well Surveying
Corp., 145 Tex. 379, 382, 198 S.W.2d 79, 81 (1946) (explaining that
statutes that are “penal in nature . . . must be strictly construed
and cannot be extended beyond the clear import of their
language.”).
8
Document No. 150 ¶¶ 28-29.
7
these statutes in the operation of its own escort vehicle.
Again,
Plaintiffs fail to state a claim upon which relief can be granted
against the Pilot Car Defendants for any statutory violation under
Chapter 545.
The Pilot Car Defendants therefore are entitled to
dismissal with prejudice of Count III of Plaintiffs’ Third Amended
Complaint,
alleging
negligence
per
se
based
on
statutory
violations.
B.
Joint Enterprise
Plaintiffs in Count VI of their Third Amended Complaint plead
a joint enterprise theory against the Pilot Car Defendants and
others to seek imposition of liability upon all.
Pilot Car
Defendants argue that Plaintiffs fail to allege facts necessary to
support their joint enterprise claim.9
Plaintiffs respond that
“analysis of whether a joint enterprise exists here is premature”
because it is generally a question for the jury, and in any event
they adequately pled their claim.10
“The theory of joint enterprise is to make each party thereto
the agent of the other and thereby to hold each responsible for the
negligent act of the other.”
S.W.2d 10, 14 (Tex. 1974).
Shoemaker v. Estate of Whistler, 513
Texas courts adopted the definition of
joint enterprise as stated in the Restatement (2d) of Torts:
9
10
Document No. 152 at 5 of 9.
Document No. 158 at 10 of 27.
8
(1) an agreement, express or implied, among the members
of the group; (2) a common purpose to be carried out by
the group; (3) a community of pecuniary interest in that
purpose, among the members; and (4) an equal right to a
voice in the direction of the enterprise, which gives an
equal right of control.
Id. at 16-17 (quoting RESTATEMENT (2D)
OF
TORTS § 491, cmt. c (1965)).
In their motion to dismiss, the Pilot Car Defendants challenge
only the third element, arguing that Plaintiffs “have not--and
cannot--allege the facts necessary to support the ‘community of
pecuniary interest’ element.”11
The Texas Supreme Court explained
[t]he ordinary meaning of “pecuniary” is “of or
pertaining to money.” Thus, to satisfy the third element
of the Restatement definition an interest must first be
monetary in nature. And again, that monetary interest
must be common among the members of the group--it must be
one
“shared
without
special
or
distinguishing
characteristics.”
St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 531 (Tex. 2002) (quoting
WEBSTER'S NEW UNIVERSAL UNABRIDGED DICTIONARY 1428 (1996); Ely v. Gen.
Motors Corp., 927 S.W.2d 774, 779 (Tex. App.--Texarkana 1996, writ
denied)).
“Indirect potential financial interests do not satisfy
the test.”
Omega Contracting, Inc. v. Torres, 191 S.W.3d 828, 850
(Tex. App.--Ft. Worth 2006, no pet.); Blackburn v. Columbia Med.
Ctr. of Arlington Subsidiary, L.P., 58 S.W.3d 263, 276 (Tex. App.-Ft. Worth 2001, pet. denied) (“evidence of such general benefits
11
Document No. 152 at 4 of 9.
9
does not establish a community of pecuniary interest in the common
purpose to be carried out by the group”).
Plaintiffs allege that “[a]ll members of the transportation
crew . . . had agreements to work together and engaged in a common,
single, concerted effort to transport the APU skid for profit,” and
“[t]he entire transportation crew had a ‘community of pecuniary
interest’ in that they were all sharing in the monetary benefit
from the transport of the APU skid.”12
Merely sharing in the
monetary benefit from the transport, however, is insufficient
to
establish
the
community
declared in Texas law.
of
pecuniary
interest
element
as
See Wolff, 94 S.W.3d at 532 (finding that
“the existence of monetary benefits flowing from the program does
not by itself satisfy the third element of a joint enterprise”).
Plaintiffs argue in their response that “[t]he entire crew had
a ‘community of pecuniary interest’ in that they all pooled their
resources, equipment and purported skill to accomplish their common
goal of safely transporting the APU skid,” and that “they all stood
to
benefit
. . . .”13
monetarily
from
the
collective
and
joint
efforts
Plaintiffs’ conclusory characterization of Defendants’
joint efforts with their resources and equipment to transport the
APU skid as a “community of pecuniary interest” is a misapplication
of that phrase.
The case cited by Plaintiffs to support their
12
Document No. 150 ¶ 65.
13
Document No. 158 at 11 of 27.
10
argument does not go so far.
In Tex. Dep’t of Transp. v. Able, the
Supreme Court of Texas found a community of pecuniary interest
where the two entities had a “Master Agreement,” which “plainly
recognize[d] that the Transitways project involved substantial sums
of money and contemplated a sharing of resources in order to make
better use of this money.”
35 S.W.3d 608, 614 (Tex. 2000).
The
Court observed that federal, state, and local funds were employed
in the project and that the pooling of resources may well have
produced substantial monetary and personnel savings.
Id.
In this case, however, Plaintiff has not pled that the parties
pooled
any
successfully
enhanced
funds
they
or
that
would
benefit.
A
by
have
more
the
shared
recent
parties’
working
any
monetary
Texas
Supreme
together
savings
Court
or
case
emphasizes that the third element of a joint enterprise requires
more than the mere existence of monetary benefits following from
the enterprise:
“the monetary benefits [must be] shared among the
members without special or distinguishing characteristics.” Wolff,
94 S.W.3d at 532.
no such allegation.
Plaintiffs’ Third Amended Complaint makes
To the contrary, Plaintiffs plead that
Contractors Cargo Company contracted with Defendant Talleres Willie
for the transport and “did not include the provision of escort
vehicles or escort services.”14
The latter services, according to
Plaintiffs’ pleading, were arranged by Defendant Bernardo Ainslie,
14
Document No. 150 ¶ 14.
11
who in doing so “act[ed] outside of the scope of the services
Talleres Willie provided as the carrier for the transport because
Defendant Talleres Willie was not contracted to and was not
supposed to supply an escort vehicle or escort services as part of
its
contract
with
Plaintiffs’
pleading
arrangements
among
Contractors
of
these
several
Cargo
several
parties
for
this
contracts
obviously
transport.”15
and
separate
excludes
any
allegations of a true joint enterprise with a sharing of the
monetary benefits by all members “without special or distinguishing
characteristics.”
See also Omega Contracting, Inc., 191 S.W.3d at
851 (explaining that there was no community of pecuniary interest
when revenue would be divided based on each parties’ work).
Taking the facts as alleged by Plaintiffs as true, there is
nothing to indicate a community of pecuniary interest such as is
required for a joint enterprise.
Accordingly, Plaintiffs fail to
allege sufficient facts to sustain their theory that the Pilot Car
Defendants were engaged in a joint enterprise, and the Pilot Car
Defendants are entitled to dismissal of Count VI, alleging a joint
enterprise.
C.
Leave to Amend
Plaintiffs have not filed a motion for leave to amend, but
summarily request “the opportunity to amend their pleading to
15
Id. ¶ 15.
12
eliminate any pleading deficiencies and/or conduct discovery to
more clearly state Plaintiffs’ claims and allege additional facts,
if necessary.”16
There is no proposed amendment or other proffer
as to what additional facts, if any, Plaintiff could plead to
“eliminate” the defects that are fatal to Plaintiffs’ amended
complaint. “‘[A] bare request in an opposition to a motion to
dismiss--without any indication of the particular grounds on which
the
amendment
is
sought,
cf.
FED. R. CIV. P. 7(b)--does
not
constitute a motion within the contemplation of Rule 15(a).’” U.S.
ex rel. Willard v. Humana Health Plan of Tex. Inc., 336 F.3d 375,
387 (5th Cir. 2003) (quoting Confederate Mem’l Ass’n, Inc. v.
Hines, 995 F.2d 295, 299 (D.C. Cir. 1993)). Especially here, where
the parties’ pretrial discovery has been ongoing for well more than
a year, there is no reason to believe that further discovery or
additional
pleading
will
cure
the
defects
identified
above.
Accordingly, Plaintiff's request to replead is denied as futile.
Foman v. Davis, 83 S. Ct. 227, 230 (1962).
IV. Order
For the foregoing reasons, it is
ORDERED that Defendants Charles Van Kirk d/b/a Slingshot Pilot
Car Services and Claude Joseph Kimmel d/b/a Freedom Pilot Car’s
Motion to Dismiss (Document No. 152) is GRANTED IN PART, and Counts
16
Document No. 158 at 24 of 27.
13
III and VI of Plaintiffs Air Liquide Mexico S. de R.L. de C.V. and
Air
Liquide
Process
and
Construction,
Inc.’s
Third
Amended
Complaint against Defendants Van Kirk and Kimmel are DISMISSED WITH
PREJUDICE for failure to state claims upon which relief can be
granted.
To the extent, if any, that Defendants’ motion seeks
dismissal of any other of Plaintiffs’ claims, the motion is DENIED.
The Clerk will enter this Order, providing a correct copy to
all counsel of record.
SIGNED in Houston, Texas, this 15th day of December, 2015.
____________________________________
EWING WERLEIN, JR.
UNITED STATES DISTRICT JUDGE
14
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