McKeown v. Rahim et al
Filing
81
MEMORANDUM OPINION AND ORDER granting in part and denying in part 71 Motion to Dismiss for Failure to State a Claim, and dismissing count three of McKeowns Third Amended Complaint WITHOUT PREJUDICE. Signed by Judge Elizabeth K. Dillon on 8/10/2020. (ams)
Case 7:18-cv-00306-EKD-RSB Document 81 Filed 08/10/20 Page 1 of 9 Pageid#: 829
IN THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
BRADLEY A. McKEOWN,
Plaintiff,
v.
KHALIL RAHIM, et al.,
Defendants.
)
)
)
)
)
)
)
)
)
Civil Action No. 7:18-cv-00306
By: Elizabeth K. Dillon
United States District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Bradley McKeown, as administrator and personal representative of the estate of
Katherine McKeown, filed this action against defendants Khalil Rahim, Troy Livingston, V.
Jones Trucking, LLC (VJT), and James Hardie Building Products, Inc. (Hardie), seeking
damages for a vehicle collision in which a tractor-trailer driven by Rahim and owned by
Livingston struck the McKeowns’ vehicle, killing Bradley’s wife Katherine McKeown. On
March 16, 2020, the court entered an opinion and order dismissing several of McKeown’s claims
and granting in part McKeown’s motion to file a third amended complaint. McKeown filed his
third amended complaint, including in count three a claim against VJT for vicarious liability
based on an alleged joint venture between VJT and Livingston. (Third Am. Compl., Dkt. No.
70.) This matter is before the court on VJT’s motion to dismiss with prejudice count three of
McKeown’s third amended complaint. 1 (Dkt. No. 71.) For the reasons set forth below, the
court will grant in part and deny in part VJT’s motion.
1
In response to McKeown’s motion to file a third amended complaint, VJT argued that McKeown’s jointventure theory was futile because McKeown did not allege that VJT had a duty to McKeown. In a prior opinion, the
court rejected this argument but noted that it was unclear whether McKeown’s proposed third amended complaint
stated a claim for vicarious liability based on a joint venture. (Dkt. No. 67.) Specifically, it questioned whether
McKeown alleged an equal right to manage, direct, or control the alleged venture as required under Virginia law.
Case 7:18-cv-00306-EKD-RSB Document 81 Filed 08/10/20 Page 2 of 9 Pageid#: 830
I. BACKGROUND
In August 2017, Bradley and Katherine McKeown were traveling on I-81 in Virginia
when a tractor-trailer, driven by Rahim and owned by Livingston, rear ended their vehicle. The
collision caused the McKeowns’ vehicle to spin sideways and crash into another vehicle.
Katherine McKeown died at the scene of the accident. (Third Am. Compl. ¶¶ 1–2, 15, 23–24,
34–38.)
McKeown alleges that Rahim, employed by Livingston and VJT, acted negligently by
failing to maintain control of his tractor-trailer, driving too fast, and otherwise operating his
vehicle in an unsafe manner. According to McKeown, 60% of the tractor-trailer’s brakes and six
of ten brake chambers on the truck and trailer were not in working order, which contributed to
the crash. At the time of the accident, Rahim was transporting a load for Hardie. (Id. ¶¶ 24–25,
39–43.)
As relevant here, McKeown alleges that VJT, a trucking company engaged in freight
shipping and hauling, was engaged in a joint venture with Livingston. He notes that Livingston
and VJT had a “lease or other arrangement” under which Livingston would use VJT’s name,
insurance, USDOT number, and federal operating authority to transport loads. Subpoenaed bank
records show numerous payments from VJT to Livingston, some of which were labeled “for
payroll,” or contained notations indicating the payment was for a certain number of loads. VJT
would also allegedly retain a portion of the fee paid for transportation of the loads. VJT’s
USDOT number and name were listed on the side of the truck Rahim was driving at the time of
the accident, and McKeown alleges that within twenty or thirty minutes of the accident,
Livingston called the owner of VJT to inform him of the accident. (Id. ¶¶ 16, 28, 50, 77–85.)
Because the parties did not brief those issues before McKeown filed his third amended complaint, the court did not
address them in its previous opinion. VJT later filed its motion to dismiss under Rule 12(b)(6) arguing that
McKeown failed to state a claim which motion is now before the court.
2
Case 7:18-cv-00306-EKD-RSB Document 81 Filed 08/10/20 Page 3 of 9 Pageid#: 831
In support of his other claims, McKeown states that VJT and Livingston completed a
vendor form for Hardie that listed VJT as the vendor and Livingston as the contact for the
vendor. The e-mail address provided on the form was the same e-mail address used by Rahim
and Livingston for Livingston’s company. Livingston also allegedly communicated with Hardie
about what loads to transport and coordinated payment for transportation of those loads.
(¶¶ 106–115).
II. DISCUSSION
A. Standard of Review
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff’s allegations must “state a claim
to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This standard “requires the plaintiff to
articulate facts, when accepted as true, that ‘show’ that the plaintiff has stated a claim entitling
him to relief, i.e., the ‘plausibility of entitlement to relief.’” Francis v. Giacomelli, 588 F.3d
186, 193 (4th Cir. 2009) (quoting Iqbal, 556 U.S. at 678). The plausibility standard requires
more than “a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678.
In determining whether the plaintiff has met this plausibility standard, the court must
accept as true all well-pleaded facts in the complaint. Sec’y of State for Defence v. Trimble
Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007). Further, it must “draw[] all reasonable
factual inferences from those facts in the plaintiff’s favor,” Edwards v. City of Goldsboro, 178
F.3d 231, 244 (4th Cir. 1999), but it “need not accept legal conclusions couched as facts or
‘unwanted inferences, unreasonable conclusions, or arguments,’” Wag More Dogs, LLC v.
Cozart, 680 F.3d 359, 365 (4th Cir. 2012) (quoting Giarratano v. Johnson, 521 F.3d 298, 302
(4th Cir. 2008)).
3
Case 7:18-cv-00306-EKD-RSB Document 81 Filed 08/10/20 Page 4 of 9 Pageid#: 832
B. Joint Venture
In its motion to dismiss, VJT argues that McKeown has not alleged the “mutual control”
required to state a claim under a joint-venture theory of liability. “A joint venture is established
by contract, express or implied, where two or more persons jointly undertake a specific business
enterprise for profit, with each to share in the profits or losses and each to have a voice in the
control and management.” Ortiz v. Barrett, 278 S.E.2d 833, 840 (Va. 1981); see also Flip
Mortg. Corp. v. McElhone, 841 F.2d 531, 539 (4th Cir. 1988); PGI, Inc. v. Rathe Prods., Inc.,
576 S.E.2d 438, 441 (Va. 2003); Roark v. Hicks, 362 S.E.2d 711, 714 (Va. 1987). Thus, a joint
venture “is usually found to exist where there is (1) mutual benefit, (2) ‘an express or implied
understanding or agreement that they are to share in the profits or losses’ and (3) each party
shares in the management of the venture.” Costello v. Frederick Cty. Sanitation Auth., 50 Va.
Cir. 373, at *4 (Va. Cir. Ct. 2000) (quoting Wells v. Whitaker, 151 S.E.2d 422, 430 (Va. 1966)).
“It is essential to a joint venture that the participants agree, expressly or impliedly, ‘that they are
to share in the profits or losses of the enterprise, and that each is to have a voice in its control and
management.’” Andrews v. Primus Telecomms. Grp., Inc., 107 F. App’x 301, 308 (4th Cir.
2004) (quoting PGI, Inc., 576 S.E.2d at 441).
“Whether or not a given set of circumstances constitutes a joint adventure is generally a
question for the jury.” Flip Mortg. Corp., 841 F.2d at 539 (quoting Smith v. Grenadier, 127
S.E.2d 107, 110 (Va. 1962)). “However, where it ‘appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle him to relief,’ the court should
dismiss a claim.” Id. (quoting Conley v. Gibson, 355 U.S. 41, 45–46 (1957)); see also Alban
Tractor Co. v. Sheffield, 263 S.E.2d 67, 68 (Va. 1980) (“When the question of whether two or
more parties were engaged in a joint enterprise becomes pertinent, such question must be
4
Case 7:18-cv-00306-EKD-RSB Document 81 Filed 08/10/20 Page 5 of 9 Pageid#: 833
determined as any other factual issue; that is, if the evidence is in conflict, or if reasonable men
may differ as to the proper inferences to be drawn from the uncontradicted testimony, a jury
question is presented; otherwise, it is a question of law to be determined by the court.”).
McKeown takes issue with VJT’s use of the phrase “mutual control,” arguing that this
phrase indicates the degree of control required for “ordinary employment or principal-agent
case[s].” (Pl.’s Resp. 6 n.2.) But in so arguing, he relies upon many of the same cases as VJT,
which include in their definition of a joint venture “an equal right to direct and govern the
movements and conduct of each other in respect” to the joint venture. Alban Tractor Co., 263
S.E.2d at 68; see also PGI, Inc., 576 S.E.2d at 441 (“[E]ach is to have a voice in its control and
management.”); Miles v. Rose, 175 S.E. 230, 236 (Va. 1934) (“Parties cannot be said to be
engaged in a joint enterprise . . . unless there be . . . an equal right to direct and govern the
movements and conduct of each other in respect thereto.”). Despite their arguments, it appears
the parties largely agree as to the proper definition of a joint venture. 2
The question is whether McKeown has alleged sufficient facts—not merely legal
conclusions—to support his claim. In his response, McKeown first highlights a string of
conclusory allegations found in his third amended complaint: “Livingston and [VJT] were
engaged in a joint venture/enterprise at the time of the Crash, and the load at issue in the Crash
was being hauled pursuant to, and within the scope of, that joint venture/enterprise”; “[VJT] and
Livingston entered into this joint venture/business enterprise for their mutual benefit and with the
understanding that they would share in the profits and losses of that venture/enterprise”; “[VJT]
and Livingston did in fact mutually benefit and share in the profits and losses of this joint
venture/enterprise and each also had a right to control or manage the joint venture/enterprise”;
2
McKeown makes a comparison between joint ventures and partnerships in an apparent attempt to support
a lesser degree of control—or a right to manage, direct, and govern—necessary to establish a joint venture. In either
case, his allegations fail to state a claim.
5
Case 7:18-cv-00306-EKD-RSB Document 81 Filed 08/10/20 Page 6 of 9 Pageid#: 834
and, “[VJT] is vicariously liable for the negligence of Livingston and Rahim committed pursuant
to, and within the scope of, the joint venture/enterprise, including that which proximately caused
the injuries and death of McKeown.” (Id. ¶¶ 90–93.) However, a plaintiff may not satisfy his
pleading burden under Rule 8 simply by reciting the elements of his claim as McKeown does in
these allegations. See Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.”).
McKeown also alleges payments from Hardie to VJT, and subsequent payments from
VJT to Livingston for “payroll” or “for loads.” McKeown asserts that these facts demonstrate a
“substantial business arrangement in the several years leading up to the accident.” (Pl.’s Resp.
9.) Although he is correct that these facts indicate cooperation between Livingston and VJT and
a likely business relationship, these facts still do not indicate that the relationship was a joint
venture. Simply put, they do not establish the requisite “equal right to direct and govern” the
venture’s operations.
As noted above, McKeown also includes relevant facts in different sections of his
complaint. Although he does not cite to these allegations in his response, the court will
nonetheless consider them here. Specifically, McKeown alleges that VJT completed a vendor
form when it sought to transport loads for Hardie. That form listed VJT as the vendor that would
transport the loads but provided contact information for Livingston. McKeown further states that
Livingston would communicate with Hardie to book hauling jobs and coordinate payment for
those loads. Hardie would send checks to either VJT or Livingston directly, and VJT would
often keep a portion of these payments.
By McKeown’s own allegations, however, it seems VJT did not always receive payment
for loads Livingston transported for Hardie using VJT’s operating authority. Notably, McKeown
6
Case 7:18-cv-00306-EKD-RSB Document 81 Filed 08/10/20 Page 7 of 9 Pageid#: 835
alleges that “because [Livingston] had trouble getting payments from [VJT], Livingston went to
James Hardie and requested that it send the checks made payable to [VJT] directly to
Livingston’s home address.” Livingston would endorse those checks in his name and in VJT’s
name before depositing them in his own personal bank account. (See Third Am. Compl. ¶¶ 106–
15.) Even taking these facts into account, the complaint still does not indicate an equal right to
manage the alleged joint venture.
The court finds Ortiz to be analogous here. 278 S.E.2d 833. In Ortiz, the plaintiff filed a
malpractice suit against the attorneys he hired for a personal injury case. The plaintiff had hired
an attorney from the District of Columbia, who then associated with local counsel in Virginia so
that he could practice in Virginia courts. The local attorney did some work and communicated
with lead counsel, including expressing concerns over some of the filings or giving suggestions
before pleadings were filed. But lead counsel retained complete control of the case. The court
found that because control was vested in the attorney from the District of Columbia, and local
counsel was merely employed to perform limited services, there was no joint venture between
the two. Id. at 835–36, 840.
Similarly, here, Livingston wanted to perform a service that he was not licensed to
perform, so he associated with VJT to obtain operating authority. Based on the allegations, VJT
does not appear to have had much input in Livingston’s operation other than collecting its fee
and having its name on a vendor form submitted to Hardie. Accordingly, it is unclear whether
VJT had any right to control or manage Livingston or whether it took a largely hands-off
approach to the arrangement. And the only allegations that clearly suggest any management by
VJT are McKeown’s conclusory statements that the parties each “had a right to control or
manage the joint venture/enterprise.”
7
Case 7:18-cv-00306-EKD-RSB Document 81 Filed 08/10/20 Page 8 of 9 Pageid#: 836
The complaint certainly suggests that some business arrangement existed between
Livingston and VJT. But, while a joint venture is possible based on the facts before the court,
McKeown has pled facts “merely consistent with” a joint venture and has “stop[ed] short of the
line between possibility and plausibility of ‘entitlement to relief.’” Iqbal, 556 U.S. at 678.
Accordingly, McKeown’s joint-venture claim against VJT will be dismissed without prejudice.
C. Statute of Limitations
As an alternative theory in support of its motion to dismiss with prejudice, VJT also
asserts that McKeown’s joint-venture claim is barred by the statute of limitations because
McKeown did not attempt to include this claim as part of his wrongful death action until more
than two years after the accident. See Va. Code Ann. § 8.01-244(B). “An amendment to a
pleading relates back to the date of the original pleading when . . . the amendment asserts a claim
or defense that arose out of the conduct, transaction, or occurrence set out—or attempted to be
set out—in the original pleading . . . .” Fed. R. Civ. P. 15(c)(1)(B). “[T]he grant or denial of an
opportunity to amend is within the discretion of the District Court.” Wyatt v. Owens, No. 7:14CV-00492, 2016 WL 6651410, at *2 (W.D. Va. Nov. 10, 2016) (quoting Foman v. Davis, 371
U.S. 178, 182 (1962)).
Since McKeown filed his original complaint, he has maintained that VJT and Livingston
were engaged in some sort of arrangement—whether that arrangement involved a lease,
employment, or independent contractor relationship, or as alleged here, a joint-venture
relationship. At each stage, McKeown has relied on the same factual allegations regarding the
accident and the same conduct, transaction, and series of events in his attempts to hold VJT
liable for Livingston and/or Rahim’s negligence. Thus, the court finds that McKeown’s joint-
8
Case 7:18-cv-00306-EKD-RSB Document 81 Filed 08/10/20 Page 9 of 9 Pageid#: 837
venture claim relates back to the date of his original complaint and will therefore deny that
portion of VJT’s motion.
III. CONCLUSION
For the reasons stated above, it is hereby ORDERED that VJT’s motion to dismiss (Dkt.
No. 71) is GRANTED IN PART AND DENIED IN PART, and count three of McKeown’s
Third Amended Complaint is DISMISSED WITHOUT PREJUDICE. The clerk is directed to
send a copy of this order to all counsel of record.
Entered: August 10, 2020.
/s/ Elizabeth K. Dillon
Elizabeth K. Dillon
United States District Judge
9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?