United States District Court, W.D. Kentucky, Paducah
MEMORANDUM OPINION AND ORDER
B. Russell, Senior Judge.
matter is before the Court on Defendants Lindy W. 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”) and Element Transportation Asset Trust,
Element Transportation, LLC, 19th Capital Group, LLC, and
19th Capital Group, Inc.'s (hereinafter “19th
Capital Movants”) Supplemental Motion to Dismiss
Certain Improperly Named Parties for Failure to State a Claim
pursuant to Federal Rule of Civil Procedure 12(b)(6). [R.
52.] Intervening Plaintiffs Cherokee Insurance Company and
Jack Hicks Company of Elk Park Inc. (hereinafter
“Intervening Plaintiffs”) responded. [R. 55.]
Forward Air Defendants and 19th Capital Movants did not
reply, and the deadline to do so has passed. This matter is
now ripe for adjudication.
reasons stated herein: Defendants' Supplemental Motion to
Dismiss is DENIED.
approximately 2:00AM on September 30, 2017, Plaintiff J.B.
Burrell Jr. was driving a commercial vehicle westbound on
Interstate 24 while his wife, Plaintiff Marie Burrell, slept
in the vehicle's sleeper compartment. [R. 1-4 at 9.]
Further ahead on Interstate 24, Defendant Lindy Duhon was
driving a tractor trailer. [Id.] At some point, Mr.
Duhon lost control of the tractor trailer, causing the
vehicle to enter the unpaved median and fall on its side.
[Id.] The tractor trailer landed with its wheels off
the ground and the underside of the vehicle blocking both
lanes of westbound Interstate 24. [Id.] Given that
it was dark, and the highway was unlit, Mr. Burrell could not
see the tractor trailer blocking the road. [Id.] Mr.
Burrell's vehicle collided with Mr. Duhon's trailer,
resulting in injuries to Mr. and Mrs. Burrell. [Id.]
addition to Mr. Duhon, Plaintiffs allege the involvement of
fourteen other defendants on the basis that each entity had a
legal relationship with Mr. Duhon at the time of the
collision. [Id. at 10.] The Complaint contains six
counts, including (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.]
Complaint was filed in Marshall Circuit Court on August 24,
2018, and the case was removed to federal court on September
19, 2018. [R. 1.] Subsequently, 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.]
Additionally, Defendant ECN Financial, LLC 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]; Defendants Celadon Group, Inc., Celadon
Trucking Services, Inc., and Celadon Logistics Services, Inc.
filed a Motion for Summary Judgment pursuant to Rule 56, [R.
17]; and 19th Capital Movants filed a Motion to Dismiss for
Failure to State a Claim pursuant to Rule 12(b)(6). [R. 21.]
Plaintiffs responded to each motion [R. 19, 20, 25, 27], and
Defendants replied [R. 24, 26, 28]. Upon careful review, the
Court denied all four motions. [R. 67.]
Defendants filed their initial motions to dismiss, Cherokee
Insurance Company and Jack Hicks Company of Elk Park Inc.
(hereinafter “Jack Hicks Company”) filed a Motion
for Leave to Intervene as subrogates of Plaintiffs Mr. and
Mrs. Burrell. [R. 29.] Defendants did not respond, and the
Court granted the motion. [R. 43.] Intervening Plaintiffs
filed an Intervening Complaint in which they incorporated the
Amended Complaint. [R. 44.] Additionally, the Intervening
Complaint alleges that Mr. and Mrs. Burrell were employees of
Jack Hicks Company and were working in the course and scope
of their employment at the time of the collision.
[Id.] Cherokee Insurance Company provides
workers' compensation insurance to Jack Hicks Company.
[Id.] Since the collision, Cherokee Insurance
Company has paid approximately $290, 067.31 in workers'
compensation benefits to or on behalf of Mr. Burrell and
approximately $151, 738.00 in benefits to or on behalf of
Mrs. Burrell. [Id.] Intervening Plaintiffs claim
they are entitled to recover from Defendants all sums paid or
payable to or on behalf of Mr. and Mrs. Burrell.
Air Defendants and 19th Capital Movants then filed a
Supplemental Motion to Dismiss the Intervening Complaint for
failure to state a claim pursuant to Federal Rule of Civil
Procedure 12(b)(6), [R. 52], and Intervening Plaintiffs
responded [R. 55].
and Intervening Plaintiffs allege six claims against
Defendants: negligence; negligence per se; strict liability;
vicarious liability; negligent hiring, retention,
supervision, and training; and gross negligence. [R. 1-4 at
10-14.] Pursuant to Federal Rule of Civil Procedure 8(a)(1),
a 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. v. Anthem Blue Cross and Blue Shield, 552
F.3d 430, 434 (6th Cir. 2008) (citing Great Lakes Steel
v. Deggendorf, 716 F.2d 1101, 1105 (6th Cir. 1983)).
“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).
their Supplemental Motion to Dismiss, Forward Air Defendants
and 19th Capital Movants argue that the Intervening Complaint
should be dismissed for failure to state a claim pursuant to
Federal Rule of Civil Procedure 12(b)(6). [R. 52.] Rather
than presenting a separate argument in support of this
motion, the Defendants adopted the arguments offered in
Forward Air Defendants' Motion to Dismiss, [R. 9], and
19th Capital Movants' Motion to Dismiss [R. 21].
Similarly, the Intervening Plaintiffs responded to the
Supplemental Motion to Dismiss by adopting the
Plaintiffs' prior responses to the Defendants'
corresponding motions. [R. 55; see R. 19, 27.] There
have been no additional arguments presented by either party
regarding the Supplemental Motion to Dismiss. Since the Court
fully reviewed Forward Air Defendants and 19th Capital
Movants' Motions to Dismiss and the Plaintiffs'
related responses in its Memorandum Opinion and Order, [R.
67], the Court will adopt its prior analysis and apply its
findings to the current motion. Thus, the Supplemental Motion
to Dismiss, [R. 52], is DENIED.
foregoing reasons, IT IS HEREBY ORDERED:
Forward Air Defendants and 19th Capital Movants'