Head v. Disttech, Inc et al

Filing 40

ORDER granting defendants' 34 Motion to Dismiss; plaintiff may file a second amended complaint within 7 days by Judge Ricardo S Martinez.(RS)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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ROMERO HEAD, as the court-appointed
Personal Representative of the Estate of
ROMEO A. HEAD,

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Plaintiff,

CASE NO. C16-1727 RSM
ORDER GRANTING
DEFENDANTS’ MOTION TO
DISMISS PARAGRAPHS

v.
DISTTECH, LLC, et al.,
Defendants.

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I.

INTRODUCTION

This matter comes before the Court upon Defendants DistTech LLC (“DistTech”) and
Jacques Wright’s (“Defendants”) Motion to Dismiss. Dkt. #34. Defendants move under Rule
12(b)(6) to dismiss paragraphs 4.8, 4.9, 4.10, 4.11, 4.12, 4.15, and 4.16 of Plaintiff’s recently
filed Amended Complaint. Id. Plaintiff Romero Head opposes this Motion. Dkt. #37. For the
reasons stated herein, the Court agrees with Defendants and GRANTS their Motion.
II.

BACKGROUND

The background facts in this matter have been summarized by the Court’s Order
Granting Defendants’ Motion for Judgment on the Pleadings, Dkt. #29, and are incorporated by
reference. In that Order, the Court dismissed Plaintiff’s claims against Defendant DistTech for
negligent hiring, retention, entrustment, supervision, and training, and granted leave for

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS PARAGRAPHS - 1

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Plaintiff to amend his Complaint “to include paragraphs that ‘merely set forth facts and
assertions which do not include causes of action or claims of negligence.’” Dkt. #29. Plaintiff
filed his Amended Complaint on March 15, 2017. Dkt. #33. This Amended Complaint has
sections titled “The Parties,” “Jurisdiction and Venue,” “Facts,” “Negligence and Reckless
Disregard,” “Damages,” and “Prayer for Relief.”

Id.

In the “Negligence and Reckless

Disregard” section, Plaintiff has amended to include the following paragraphs at issue:
4.8
At all relevant times, Defendant DISTTECH and Defendant
JACQUES A. WRIGHT were subject to and required to obey the
minimum regulations and standards established by the Federal
Motor Carrier Safety Regulations (FMCSR) and trucking industry
standards.
4.9
Defendant DISTTECH was required to confirm and certify
Defendant JACQUES A. WRIGHT’s physical and mental fitness
for and proper qualifications as a commercial driver.
4.10 Defendant DISTTECH in their capacity as an interstate
motor carrier was also required to teach and to train Defendant
JACQUES A. WRIGHT, or confirm that Defendant JACQUES A.
WRIGHT was properly trained so that he could obey the rules and
regulations contained in the FMCSR.
4.11 Defendant DISTTECH was also required to teach and to
train Defendant JACQUES A. WRIGHT or confirm that
Defendant JACQUES A. WRIGHT was properly trained so that he
could obey the industry standards of practice for a commercial
truck driver.
4.12 Defendant DISTTECH was required to promulgate and
enforce rules, guidelines, regulations and standards to ensure that
its drivers, including Defendant JACQUES A. WRIGHT, were
reasonable and safe in their operation of Company semi-trucks.
4.15 Defendant JACQUES A. WRIGHT's employer applies the
principle of safe working and defensive driving to all motor
vehicle accidents and personal injuries.
4.16 Defendant JACQUES A. WRIGHT's employer, when
reviewing an accident or injury must consider company policies,
safety standards, state law, federal regulations and other pertinent
information in making the determination of preventability.

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS PARAGRAPHS - 2

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Dkt. #33 at 7-8.

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III.

LEGAL STANDARD

In making a 12(b)(6) assessment, the court accepts all facts alleged in the complaint as
true, and makes all inferences in the light most favorable to the non-moving party. Baker v.
Riverside County Office of Educ., 584 F.3d 821, 824 (9th Cir. 2009) (internal citations omitted).
However, the court is not required to accept as true a “legal conclusion couched as a factual
allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007)).
Where a complaint is dismissed for failure to state a claim, “leave to amend should be
granted unless the court determines that the allegation of other facts consistent with the
challenged pleading could not possibly cure the deficiency.” Schreiber Distrib. Co. v. ServWell Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986).
IV.

DISCUSSION

Defendants move to dismiss the above paragraphs from Plaintiff’s Amended Complaint,

15 citing the Court’s prior Order granting Defendants’ Motion for Judgment on the Pleadings, Dkt.
16 #29, described above. Defendants argue that the paragraphs above do more than “merely set
17 forth facts and assertions which do not include causes of actions or claims of negligence.” Dkt.
18 #34 at 2-3. Defendants argue that these paragraphs are futile and should be dismissed.
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In Response, Plaintiff argues that he “appropriately amended his complaint to only

20 include paragraphs setting forth facts and assertions, all of which are relevant to the remaining
21 issues and claims in the case.” Dkt. #37 at 2. Plaintiff argues that “[e]ach of the paragraphs
22 attacked by the Defendants only make statements of fact or assertions that will be or should be
23 admitted by the Defendants, and relate to the very issues with must be considered in determining
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ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS PARAGRAPHS - 3

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the negligence of Defendant Wright.” Id. at 4. Plaintiff argues in the alternative that the Court
should grant leave for Plaintiff to file a Second Amended Complaint. Id. at 12.
The Court finds that the paragraphs at issue are not merely facts, otherwise they would
be in the section titled “Facts.” Instead, these paragraphs assert claims against Defendant
DistTech contrary to the Court’s previous Order. The Court will allow Plaintiff to amend to fix
this problem. See Schreiber, supra. Plaintiff may add facts or assertions as to regulations and
standards that applied to Defendant Wright, company rules that applied to Defendant Wright,
Defendant Wright’s physical and mental fitness, Defendant Wright’s training, and other
circumstances surrounding Defendant Wright’s actions at issue in the negligence claim against
him. Plaintiff may not include claims against Defendant DistTech or assertions of duties owed
by DistTech to Plaintiff. The Court warns Plaintiff that it may not allow further amendment if
Defendants are forced to move for similar relief in the future.
V.

CONCLUSION

For the reasons stated above, the Court GRANTS Defendants’ Motion to Dismiss, Dkt.
#34, and hereby orders that paragraphs 4.8, 4.9, 4.10, 4.11, 4.12, 4.15, and 4.16 of Plaintiff’s
Amended Complaint are DISMISSED. If he so chooses, Plaintiff may file a second amended
complaint as set forth above within seven (7) days from the date of this Order.
DATED this 4th day of May 2017.

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RICARDO S. MARTINEZ
UNITED STATES DISTRICT JUDGE

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ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS PARAGRAPHS - 4