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Eiserman v. Kentucky Power Co.

United States District Court, E.D. Kentucky, Central Division, Lexington

March 3, 2015

EDWIN EDWARD EISERMAN, et al., Plaintiffs,
KENTUCKY POWER COMPANY, et al., Defendants, L-3 COMMUNICATIONS VERTEX AEROSPACE LLC, et al., Third-Party Defendants.


DANNY C. REEVES, District Judge.

This action is pending for consideration of Third-Party Defendant L-3 Communications Vertex Aerospace LLC's ("Vertex") Motion to Dismiss the third-party claims against it for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. [Record No. 7] In an effort to salvage these claims, Third-Party Plaintiffs Kentucky Power Company and Consol of Kentucky, Inc. (collectively, the "Power Companies") seek to file an Amended Third-Party Complaint. [Record No. 14] For the reasons discussed below, Vertex's motion will be granted and the Power Companies' motion will be denied.


On July 29, 2013, a helicopter operated by the United States Drug Enforcement Agency struck utility lines and crashed. [Record No. 1, p. 13] Plaintiff Edwin Eiserman, a passenger in the helicopter, allegedly suffered mental and physical injuries as a result of the accident. He and his family filed various tort claims in Breathitt Circuit Court against the Power Companies. [ Id., p. 11] In turn, the Power Companies filed a Third-Party Complaint against Vertex and the helicopter pilot, Andrew T. Croddy (later substituted by the United States Attorney), for apportionment, contribution, and indemnity. [ Id., p. 5] The action was removed to this Court and is pending for consideration of Vertex's motion to dismiss the third-party claims asserted against it. [Record Nos. 1, 7]


When evaluating a motion to dismiss under Rule 12(b)(6), the Court must determine whether the complaint alleges "sufficient factual matter, accepted as true, to 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, 555 (2007)). The plausibility standard is met "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). Although the complaint need not contain "detailed factual allegations" to survive a motion to dismiss, "a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (internal quotation marks and alteration omitted).

In considering a 12(b)(6) motion, the Court is required to "accept all of plaintiff's factual allegations as true and determine whether any set of facts consistent with the allegations would entitle the plaintiff to relief." G.M. Eng'rs & Assoc., Inc. v. West Bloomfield Twp., 922 F.2d 328, 330 (6th Cir. 1990) (citation omitted). However, the Court need not accept as true legal conclusions cast in the form of factual allegations if those conclusions cannot be plausibly drawn from the facts, as alleged. See Iqbal, 556 U.S. at 678 ("[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions."); see also Papasan v. Allain, 478 U.S. 265, 286 (1986) (noting that in reviewing a motion to dismiss, the district court "must take all the factual allegations in the complaint as true, " but that the court is "not bound to accept as true a legal conclusion couched as a factual allegation"). Thus, Rule 12(b)(6) essentially "allows the Court to dismiss, on the basis of a dispositive issue of law, meritless cases which would otherwise waste judicial resources and result in unnecessary discovery." Glassman, Edwards, Wade & Wyatt, P.C. v. Wolf Haldenstein Adler Freeman & Herz, LLP, 601 F.Supp.2d 991, 997 (W.D. Tenn. Mar. 10, 2009).

Amendments to pleadings are governed by Rule 15 of the Federal Rules of Civil Procedure. Under this rule, the Power Companies' opportunity to amend the Third-Party Complaint as a matter of course has passed. See Fed.R.Civ.P. 15(a)(1)(A), (B) (establishing a window in which plaintiffs may amend as of right). As a result, the thirdparty plaintiffs may now amend their Third-Party Complaint only with the third-party defendants' written consent or with the Court's permission. Fed.R.Civ.P. 15(a)(2). Because Vertex opposes the motion for leave to amend, [Record No. 18] the Court considers whether justice requires that leave be granted.[1] See Fed.R.Civ.P. 15(a)(2). This policy is premised on the desirability of hearing the plaintiff's claims on the merits. Foman v. Davis, 371 US. 178, 182 (1962). Generally, a plaintiff's motion for leave to amend should be granted absent a justifiable reason, such as avoiding undue delay, repeated failure to cure deficiencies, prejudice to the opposing party, and futility of the amendment. Riverview Health Inst., LLC v. Med. Mut. of Ohio, 601 F.3d 505, 512 (6th Cir. 2010). Here, Vertex opposes the motion based futility. [Record No. 18, p. 1]

A motion to amend is deemed futile if the proposed amendment "could not withstand a Rule 12(b)(6) motion to dismiss." Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417 (6th Cir. 2000) (citing Thiokol Corp. v. Dep't of Treasury, State of Mich., Revenue Div., 987 F.2d 376, 382-83 (6th Cir. 1993)). "When considering a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the district court must accept all of the allegations in the complaint as true, and construe the complaint liberally in favor of the plaintiff." Lawrence v. Chancery Court of Tenn., 188 F.3d 687, 691 (6th Cir. 1999). The Court will consider only the proposed Amended Complaint, which must include "only enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 555. To overcome a Rule 12(b)(6) dismissal, "the complaint's factual allegations must be enough to raise a right to relief above the speculative level' and state a claim to relief that is plausible on its face.'" Campbell v. BNSF Ry. Co., 600 F.3d 667, 677 (6th Cir. 2010) (citing Tam Travel, Inc. v. Delta Airlines, Inc., 583 F.3d 896, 903 (6th Cir. 2009)).


A. Motion to Dismiss Third-Party Complaint

Seeking apportionment, indemnity, and common law contribution in the Third-Party Complaint, the Power Companies allege that Vertex "was the registered owner of the helicopter." [Record No. 1-1, p. 7] However, under Kentucky law, this allegation standing alone is insufficient to impose liability. See Tackett v. Vargas, 2014 U.S. Dist. LEXIS 100723 (E.D. Ky. July 24, 2014); Farmer v. Stidham, 439 S.W.2d 71, 72 (Ky. 1969) ("Mere ownership of an automobile is not enough to impose liability on the owner for an accident brought about by the negligence of one operating the car with the owner's consent absent certain exceptional circumstances.").

The only other allegations against Vertex in the original Third-Party Complaint provide:

7. The above-mentioned injuries to Eiserman, and the damages alleged in the Plaintiff's Complaint, to the extent not caused by Eiserman's own fault and/or contributory fault, were, in whole or in part, the result of the failure to exercise ordinary care on the part of the Third Party Defendants, including, but not limited to, failures on the part of the ...

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