United States District Court, W.D. Kentucky, Paducah
MEMORANDUM OPINION AND ORDER
B. RUSSELL, SENIOR JUDGE.
matter is before the Court on four motions. [R. 9, 12, 17,
21.] First, Defendants Lindy Duhon, Lindy Duhon Trucking,
LLC, Forward Air, Inc., Forward Air Corporation, FAF, Inc.
(TN), Forward Air Services, LLC, Forward Air Solutions, Inc.,
Forward Air Technology and Logistics Services, Element
Financial Corp., and Element Fleet Management Corp.
(hereinafter “Forward Air Defendants”) filed a
Motion to Dismiss for Failure to State a Claim pursuant to
Federal Rule of Civil Procedure 12(b)(6). [R. 9.] Plaintiffs
J.B. Burrell, Jr. and Marie Burrell (hereinafter
“Plaintiffs”) responded, [R. 19], and Forward Air
Defendants replied, [R. 24]. Second, Defendant ECN Financial,
LLC (hereinafter “ECN”) filed a Motion to Dismiss
for lack of personal jurisdiction pursuant to Rule 12(b)(2)
and for failure to state a claim pursuant to Rule 12(b)(6).
[R. 12.] Plaintiffs responded, [R. 20], and ECN replied, [R.
26]. Third, Defendants Celadon Group, Inc., Celadon Trucking
Services, Inc., and Celadon Logistics Services, Inc.
(hereinafter “Celadon”) filed a Motion for
Summary Judgment pursuant to Rule 56. [R. 17.] Plaintiffs
responded, [R. 25], and Celadon replied, [R. 28]. Finally,
Defendants Element Transportation Asset Trust, Element
Transportation, LLC, 19th Capital Group, LLC, and 19th
Capital Group, Inc. (hereinafter “19th Capital
Movants”) filed a Motion to Dismiss for Failure to
State a Claim pursuant to Rule 12(b)(6). [R. 21.] Plaintiffs
responded. [R. 27.] 19th Capital Movants did not reply, and
the deadline to do so has passed. This matter is now ripe for
reasons stated herein: Forward Air Defendants' Defendants
Motion to Dismiss is DENIED; ECN's Motion to Dismiss is
DENIED; Celadon's Motion for Summary Judgment is DENIED;
and 19th Capital Movants' Motion to Dismiss is DENIED.
factual allegations, as set out in the Complaint and presumed
to be true at the motion to dismiss stage of litigation, are
as follows. On September 30, 2017, at approximately
2:00AM, Plaintiff J.B. Burrell was driving a commercial
vehicle westbound on Interstate 24 with his wife, Plaintiff
Marie Burrell, who was travelling with him as a passenger.
[R. 1-4 at 9.] At the time of the incident, Mrs. Burrell was
asleep in the sleeper compartment. [Id.]
ahead on Interstate 24, Defendant Lindy Duhon was also
driving a commercial vehicle westbound, specifically a
tractor trailer. [Id.] At some point, Duhon lost
control of the tractor trailer and entered the median
separating the westbound from eastbound lanes of the
interstate. [Id.] Although the details are not
exact, the Complaint describes what happened next as follows:
After entering the unpaved median . . . Duhon's tractor
trailer returned to the paved portion of Interstate 24
westbound -- on its side, with its wheels off the ground, and
the underside (“belly”) of his tractor trailer
facing east, with the length of his tractor trailer extending
across and blocking both paved lanes and the adjacent
shoulders of westbound Interstate 24.
Complaint alleges that it was dark and the highway was unlit,
so Mr. Burrell could not see Duhon's tractor trailer
blocking the road ahead of him. [Id.] Mr. Burrell
collided with Duhon's trailer, allegedly resulting in
injury to both Mr. and Mrs. Burrell. [Id.]
allege the involvement of the additional defendants, i.e.,
other than Duhon, as follows:
At the time and place and upon the occasion set forth above,
Duhon was a driver operating a commercial motor vehicle as a
statutory employee of one o[r] more of Defendants Nos. 2-15,
as defined by 49 CFR §390.5(t); alternately, Duhon was a
lessee and/or statutory employer; alternately, Duhon was
assigned this cargo by and/or was under dispatch by one or
more of Defendants Nos. 2-15; alternately, Duhon was the
agent, servant, employee, ostensible agent, joint venturer,
and/or independent contractor of one or more of Defendants
Nos. 2-15; alternately, Defendants Nos. 2-15 were agents,
servants, employees, ostensible agents, joint venturers,
and/or independent contractors of each other.
At the time and place and upon the occasion and under the
circumstances set forth above, one or more of Defendants Nos.
2-15 were Duhon's statutory employer; alternately, one or
more of Defendants Nos. 2-l5 were the owners and/or had
beneficial interests and/or control over the use and
operation of the commercial motor vehicle being driven by
Duhon; alternately, one or more Defendants Nos. 2-15 were the
lessors of the commercial motor vehicle being driven by
Duhon; alternately, one or more of Defendants Nos. 2-15 were
the motor carriers under whose authority the cargo was being
transported by Duhon; alternately, one or more of Defendants
Nos. 2-15 assigned and/or dispatched the load/cargo to Duhon
[Id. at 10.] In total, the Complaint contains six
counts. They include (1) negligence, (2) negligence per se,
(3) strict liability, (4) vicarious liability, (5) negligent
hiring, retention, supervision, and training, and (6) gross
negligence. [Id. at 10-14.]
August 24, 2018, Plaintiffs filed a complaint in Marshall
Circuit Court, and on September 19, 2018 the case was removed
to federal court. [R. 1.] Subsequently, the defendants filed
the motions that are currently before the Court.
Court will address each motion in the order by which they
Forward Air Defendants' 12(b)(6) Motion to Dismiss [R. 9]
Review Under Rule 12
initial matter, the Court acknowledges that the Plaintiffs
attached multiple exhibits to their response to Forward Air
Defendants' Motion to Dismiss. [See generally R.
19-1-19-8.] Forward Air Defendants do not object to the
inclusion of these documents. [R. 24 at 4.] It is true that
“[i]f, on a motion under Rule 12(b)(6) or 12(c),
matters outside the pleadings are presented to and not
excluded by the court, the motion must be treated as one for
summary judgment under Rule 56.” Fed.R.Civ.P. 12(d).
However, this decision rests within the discretion of the
district court, which “remains free to refuse to accept
materials outside the pleadings.” Max Arnold &
Sons, LLC v. W.L. Hailey & Co., Inc., 452 F.3d 494,
503 (6th Cir. 2006) (quoting 5C Charles Alan Wright &
Arthur R. Miller, Fed. Prac. & Proc. § 1371 (3d ed.
2004)). Furthermore, although the Court must normally
disregard matters outside the pleadings in ruling on a motion
to dismiss, a document can be properly considered on such a
motion when it is “referred to in the complaint and . .
. central to the plaintiff's claim.” Greenberg
v. Life Ins. Co. of Va., 177 F.3d 507, 514 (6th Cir.
1999). As the Plaintiffs reference the lease and ownership
interests of all defendants in the Complaint, and those
interests are central to the alleged employer and agency
relationships involved in the claims, the Court can properly
consider the lease, financing, and ownership documents
attached in exhibits 2, 3, and 4. [See R. 1-4 at 10.]
However, exhibits 1, 5, 6, 7, and 8 include a police report
and various emails that were not referenced in the Complaint.
Thus, the Court will disregard exhibits 1, 5, 6, 7, and 8 in
order to avoid converting this motion to dismiss into a
motion for summary judgment.
The Claims Against Forward Air Defendants in the
allege six claims against the defendants in the Complaint:
negligence; negligence per se; strict liability; vicarious
liability; negligent hiring, retention, supervision, and
training; and gross negligence. [R. 1-4 at 10-14.] In their
Motion to Dismiss for failure to state a claim, the Forward
Air Defendants argue that they had no involvement with the
accident at issue and cannot be held liable to Plaintiffs
under any legal theory. [R. 9-1 at 3.] In fact, the Forward
Air Defendants argue that the only properly listed defendants
in this action are Lindy W. Duhon, Lindy Duhon Trucking, LLC,
and FAF, Inc. (TN). [Id. at 2.]
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). In order to survive a
motion to dismiss under Rule 12(b)(6), a party must
“plead enough ‘factual matter' to raise a
‘plausible' inference of wrongdoing.” 16630
Southfield Ltd. P'ship v. Flagstar Bank, F.S.B.,
727 F.3d 502, 504 (6th Cir. 2013) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)). A claim becomes
plausible “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 556 (2007)). When considering a
Rule 12(b)(6) motion to dismiss, the Court must presume all
of the factual allegations in the complaint are true and draw
all reasonable inferences in favor of the non-moving party.
Total Benefits Planning Agency, Inc., 552 F.3d at 434 (citing
Great Lakes Steel, 716 F.2d at 1105). “The court need
not, however, accept unwarranted factual inferences.”
Id. (citing Morgan v. Church's
Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987)).
Should the well-pleaded facts support no “more than the
mere possibility of misconduct, ” then dismissal is
warranted. Iqbal, 556 U.S. at 679. The Court may grant a
motion to dismiss “only if, after drawing all
reasonable inferences from the allegations in the complaint
in favor of the plaintiff, the complaint still fails to
allege a plausible theory of relief.” Garceau v.
City of Flint, 572 Fed.Appx. 369, 371 (6th Cir. 2014)
(citing Iqbal, 556 U.S. at 677- 79).
Forward Air Defendants make four specific arguments
throughout their initial motion and reply, which the Court
shall consider in turn. First, the Forward Air Defendants
argue that whether “Defendants 2-15” in the
Complaint had an ownership interest in the truck at issue
“has no factual significance, as Kentucky law does not
impose vicarious liability upon the owner of a vehicle that
is involved in a collision. Farmer v. Stidham, 439
S.W.2d 71, 72 (Ky. 1969).” [R. 9-1 at 8.] However,
Forward Air Defendants incorrectly apply the Supreme Court of
Kentucky's findings in Farmer v. Stidham. In
that case, the Supreme Court of Kentucky held: “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 not presented here.
Corbin Fruit Company v. Decker, 252 Ky. 766, 68
S.W.2d 434; Wolford v. Scott Nickels Bus
Company, Ky., 257 S.W.2d 594.” Farmer v.
Stidham, 439 S.W.2d 71, 72 (Ky. 1969) (emphasis added).
In one of the case cited by the Farmer court, Wolford v.
Scott Nickels Bus Company, the Supreme Court of Kentucky
stated: “Liability for damages arising from the
operation of a motor vehicle must rest on something more than
mere ownership. Where the vehicle is operated by a person
other than the owner, the relationship of master and servant
or principal and agent is necessary to establish liability on
the owner.” Wolford v. Scott Nickels Bus Co.,
257 S.W.2d 594, 595 (Ky. 1953). Of course, unlike in the
facts of Farmer, one of the main issues at hand in this case
is whether an agent or employee relationship existed between
Forward Air Defendants and Plaintiffs. Thus, Forward Air
Defendants case citation and resulting argument are
distinguishable from this matter.
Forward Air Defendants argue that as they admitted in their
Answer to the Complaint that Duhon was a statutory employee
of FAF, Inc. (TN), it is now an “uncontested
fact” that “beyond any legitimate dispute, . . .
F.A.F., Inc. (TN) was Mr. Duhon's statutory
employer.” [R. 9-1 at 9.] Furthermore, in their Reply,
Forward Air Defendants assert that Plaintiffs' Complaint
“did not assert that Lindy Duhon was an employee of any
particular Defendant” and, therefore, is
“insufficient to plausibly confer liability upon
‘all' of the defendants.” [R. 24 at 4.] The
Court finds that Forward Air Defendants stating that FAF,
Inc. (TN) was Duhon's sole employer in their Answer
hardly makes it an “undisputed fact.”
Furthermore, determining whether there is a dispute of
material fact is the standard for motion summary judgment,
not the earlier stage of motion to dismiss. See Fed.R.Civ.P.
56. As for Forward Air Defendants' argument in their
Reply, the Court agrees that the Plaintiffs' allegations
are scant. So much so, that the Court recognizes that they
tread dangerously close to falling below pleading the factual
content required at the motion to dismiss stage. However, in
construing the facts in the light most favorable to
Plaintiffs and accepting the allegations in the Complaint as
true, the Court is hesitant to dismiss Plaintiffs' claim
at this juncture. The Court finds that Plaintiffs have
pleaded just enough to survive motion to dismiss.
Furthermore, the Court expects the issue of Plaintiffs'
relationship with specific defendants to become clearer as
further evidence surfaces under Magistrate Judge King's
recent ruling on Plaintiffs' Motion to Compel, [R. 62 at
Forward Air Defendants specifically argue that Plaintiffs
have not stated a claim for negligence. [R. 24 at 3.] The
parties agree that Kentucky law governs this action. [See R.
9-1 at 6; R. 19 at 10.] Under Kentucky law, “[a] common
law negligence claim requires proof of (1) a duty owed by the
defendant to the plaintiff, (2) breach of that duty, (3)
injury to the plaintiff, and (4) legal causation between the
defendant's breach and the plaintiff's injury.”
Wright v. House of Imports, Inc., 381 S.W.3d 209,
213 (Ky. 2012) (citing Pathways, Inc. v. Hammons,
113 S.W.3d 85, 88-89 (Ky. 2003)). “The standard of care
applicable to a common-law negligence action is that of
ordinary care-that is, ‘such care as a reasonably
prudent person would exercise under the
circumstances.'” Id. (quoting Slusher
v. Brown, 323 S.W.2d 870, 872 (Ky. 1959)).
Count 1 of the Complaint, regarding Forward Air Defendants,
26. At the time and place upon the occasion and under the
circumstances set forth above, Defendants Nos. 2-15 failed to
exercise ordinary care, breached duties, and were otherwise
negligent and careless in their ownership, leasing,
maintenance, inspection, use, operation, and condition of the
commercial motor vehicle furnished to and/or used by Duhon.
27. Defendants Nos. 2-15 failed to exercise ordinary care,
breached duties, and/or were otherwise careless and negligent
in their failure to promulgate, implement, enforce, monitor,
and audit compliance with rules, regulations, policies, and
procedures to promote reasonably safe operation, use,
maintenance, inspection, and emergency response by