2019 WL 2492812

United States District Court, D. Maryland.
CARLA ORTIZ, Individually, and on Behalf of her daughter, J.L., a minor
v.
BEN STRONG TRUCKING, et al.
Civil No. CCB-18-3230
|
Filed 06/14/2019

MEMORANDUM
Catherine C. Blake United States District Judge
*1 On June 18, 2018, a tractor trailer carrying a large load of shingles northbound on Interstate 95 in Harford County, Maryland, careened into the back of a passenger car that had slowed to pilot through stop-and-go construction zone traffic. There were multiple casualties. Carla Ortiz was the driver of the first vehicle struck (two more vehicles would be hit), and she brings this tort action against the truck driver and various companies allegedly affiliated with the shipment on behalf of herself and her minor daughter, who sustained severe and permanently debilitating injuries. There are three pending motions in this case. The first is a partial motion to dismiss by Ben Strong Trucking Inc. (“Strong”), the company that operated the truck at issue and employed its driver, John Oliver Terry, Jr. (ECF No. 4). The second is a motion to dismiss by Cowan Systems, LLC (“CSL”), alleged to be the original carrier contracted to haul the shipment. (ECF No. 12). The final pending motion is brought by Cowan Systems Transportation, LLC (“CST”) and Cowan Systems, Inc. (“CSI”), seeking dismissal of the claims against them or in the alternative for summary judgment. The pending motions will be addressed in turn.

DISCUSSION

I. Standard of Review
When ruling on a motion under Rule 12(b)(6), the court must “accept the well-pled allegations of the complaint as true,” and “construe the facts and reasonable inferences derived therefrom in the light most favorable to the plaintiff.” Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997). “Even though the requirements for pleading a proper complaint are substantially aimed at assuring that the defendant be given adequate notice of the nature of a claim being made against him, they also provide criteria for defining issues for trial and for early disposition of inappropriate complaints.” Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). “The mere recital of elements of a cause of action, supported only by conclusory statements, is not sufficient to survive a motion made pursuant to Rule 12(b)(6).” Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). To survive a motion to dismiss, the factual allegations of a complaint “must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted). “To satisfy this standard, a plaintiff need not ‘forecast’ evidence sufficient to prove the elements of the claim. However, the complaint must allege sufficient facts to establish those elements.” Walters, 684 F.3d at 439 (citation omitted). “Thus, while a plaintiff does not need to demonstrate in a complaint that the right to relief is ‘probable,’ the complaint must advance the plaintiff’s claim ‘across the line from conceivable to plausible.’ ” Id. (quoting Twombly, 550 U.S. at 570). In considering a Rule 12(b)(6) motion, the court does not always have to limit its review to the pleadings. It can also take judicial notice of public records, including statutes, and can “consider documents incorporated into the complaint by reference, as well as those attached to the motion to dismiss, so long as they are integral to the complaint and authentic.” United States ex rel. Oberg v. Pennsylvania Higher Educ. Assistance Agency, 745 F.3d 131, 136 (4th Cir. 2014) (citations and internal quotation marks omitted).

II. Analysis

i. Ben Strong Trucking’s Partial Motion to Dismiss
*2 Strong asks this court to dismiss, as a matter of law, three of the counts brought against it in the complaint: (1) Count IV, negligent infliction of emotional distress; (2) Count V, intentional infliction of emotional distress; (3) Count VI, punitive damages.

(1) NEED
It is well-established that Maryland law does not recognize an independent claim for negligent infliction of emotional distress. See Carson v. Giant Food, Inc., 187 F. Supp. 2d 462, 482 (D. Md. 2002). The plaintiff argues that this rule does not apply in situations where the source of the alleged emotional distress also resulted in physical injuries to the plaintiff. (See ECF No. 15-1 at pp. 10-12.) Additionally, she offers to “amend/convert” Count IV into a second negligence claim, should the court find the existing NIED not to be cognizable alone.

A clear rule surfaces from the extensive Maryland case law on this precise question. While negligent infliction of emotional distress is not a viable standalone claim under Maryland case law, emotional distress can be recoverable as an element of damages in a personal injury action. See Alban v. Fiels, 210 Md. App. 1, 19 (2013). “[W]hen tortious conduct causes a physical injury, the injured person may recover damages for emotional distress attendant to the physical injury.” Exxon Mobil Corp. v. Ford, 204 Md. App. 1, 101 (2012); Hamilton v. Ford Motor Credit Co., 66 Md. App. 46, 63 (1986) (“Recovery may be had in a tort action for emotional distress arising out of negligent conduct. In such case, the emotional distress is an element of damage, not an independent tort.”) Accordingly, Count IV will be dismissed. The court notes that the plaintiff has included claims for emotional distress in her negligence count. Compl. ¶¶ 114-15. Nevertheless, she may seek leave to amend the complaint if counsel believes there is some need to replead the damages request.

(2) IIED
A plaintiff must satisfy four elements to sustain an IIED claim in Maryland: (1) intentional or reckless conduct, that is also (2) extreme and outrageous; (3) a causal connection between the wrongful conduct and the emotional distress; and (4) severe emotional distress. Harris v. Jones, 281 Md. 560, 566 (1977). The plaintiff argues that the shingles shipment at issue was illegally double-brokered in violation of the Federal Motor Carrier Safety Regulations and that this act supplies the intentional or reckless extreme and outrageous action needed to satisfy the first two prongs of the IIED test. To sustain an IIED cause of action a plaintiff must show that the defendant intended to cause the plaintiff distress, knew that it was substantially certain that distress (of the requisite magnitude) would result from a given course of action, or acted recklessly in deliberate disregard of a strong likelihood that emotional distress would result. Foor v. Juvenile Servs. Admin., 78 Md. App. 151, 175 (1989). In this case, any alleged unlawful agreement to broker the shipment to a new carrier is far too removed from the cause of the alleged emotional distress for this claim to survive. The fact that the defendants may have intended to do something improper unrelated (or insufficiently related) to the accident has little bearing on the plaintiff’s IIED claim. There is no factual allegation that any of the defendants intended the accident, that the accident was substantially certain to occur, or that there existed any sufficiently causal nexus between the allegedly unlawful agreement to transfer carriers and the harm to the plaintiff or J.L. See id. Nor is this kind of traffic accident, however tragic, the type of outrageous or extreme conduct required in Maryland for an IIED claim to proceed. See Alban, 210 Md. App. at 6. Even if all the facts in the complaint are assumed to be true, the plaintiff has failed to establish the first three elements of an IIED cause of action. This claim will be dismissed.

(3) Punitive Damages
*3 Punitive damages in Maryland require actual malice. See Scott v. Jenkins, 345 Md. 21, 29 (1997). Actual malice is the performance of an act “with evil or rancorous motive influenced by hate, the purpose being to deliberately and willfully injure the plaintiff.” Biktasheva v. Red Square Sports, Inc., 366 F. Supp. 2d 289, 296 (D. Md. 2005). Actual malice must be pled with specificity. See Scott, 345 Md. at 36.

There are no facts pled in this case that, even when construed in every way to favor the plaintiff, amount to a prima facie case of actual malice. To the extent that the plaintiff points to an allegedly fraudulent double-brokerage arrangement, this cannot possibly support the contention that any defendant purposely defrauded (nor even misrepresented any fact) to any plaintiff. See Maryland Envtl. Tr. v. Gaynor, 370 Md. 89, 97 (2002). Simply put, the first alleged encounter between any plaintiff and any defendant was the tragic collision on I-95. Any earlier impropriety involving the contract for carrying the shingles load cannot be used to marshal an argument that there was ever malice, or a motive to injure or defraud, a plaintiff. The parties had never met. Nor are there allegations that, if true, amount to “evil or rancorous motive influenced by hate.” Biktasheva, 366 F. Supp. 2d at 296. Accordingly, Count VI will be dismissed.1

ii. Cowan Systems, LLC’s Motion to Dismiss
CSL contends that the case against it should be dismissed as a matter of law. (ECF No. 12.) While, as explained above, Counts IV, V, and VI will be dismissed as to all defendants, CSL puts forth additional contentions, asserting that all remaining claims against it should be dismissed. First, it argues that Strong and Terry were independent contractors and that therefore CSL is immune from any liability that would otherwise attach under the doctrine of respondeat superior. Second, it says that the Federal Aviation Administration Authorization Act of 1994 (“FAAAA”) preempts any negligence claims against it. Finally, as to Count III, it contends that dismissal is warranted because there are insufficient facts pled to show negligent hiring.

The plaintiff has brought three alternative theories for recovery in this case. Count I alleges that CSL was a statutory employer of Ben Strong and Mr. Terry. The parties appear to agree that the viability of a statutory employer theory rests at least in part on whether CSL was acting as a broker (as CSL itself alleges) or as a carrier (as the plaintiff contends). See Schramm v. Foster, 341 F. Supp. 2d 536, 548 (D. Md. 2004); AIG Europe Ltd v. General System, Inc., 2014 WL 3671566, at *4 (D. Md. 2014).2 Similarly, the threshold viability of Count II appears to rest on CSL’s designation as a carrier. (See ECF 21-2 at pp. 11-14 and ECF 12-1 at pp. 4-8.) Count III is the plaintiff’s theory for recovery if CSL was indeed acting as the broker for this shipment; it requires this court to determine whether broker liability in personal injury cases is preempted by the FAAAA, a question on which there appears to be at least somewhat of a split among courts to have recently considered the issue. Compare Owens v. Anthony, 2011 WL 6056409, at *3 (M.D. Tenn. Dec. 6, 2011), Mann v. C.H. Robinson Worldwide, Inc., 2017 WL 3191516, at *7 (W.D. Va. July 17, 2017), and Montes de Oca v. El Paso-L.A. Limo. Exp., Inc., 2015 WL 1250139, at *2 (C.D. Cal. Mar. 17, 2015), with Vokova v. C.H. Robinson Co., 2018 WL 741441, at *4 (N.D. Ill. Feb. 7, 2018), Krauss v. IRIS USA, Inc., 2018 WL 2063839, at *5 (E.D. Pa. May 3, 2018), and Miller v. C.H. Robinson Worldwide, Inc., 2018 WL 5981840, at *4 (D. Nev. Nov. 14, 2018). But this question of statutory interpretation and congressional intent need only be decided if it is established that CSL acted as a broker and not a carrier. It is therefore not necessary to address at this time.

*4 The facts pled in this case show that, if CSL served as a carrier, Counts I and II are at least facially plausible. See Iqbal, 129 S.Ct. at 1949. And for the purposes of this Rule 12(b)(6) motion, factual inferences and ambiguities are resolved in a plaintiff’s favor. Ibarra, 120 F.3d. at 474. Here, the plaintiff has not only alleged that CSL (or CSI) was a carrier of the shipment at issue, they have provided a bill of lading listing both CSI and Strong as the carrier of the shipment (ECF No. 21-4) and business records obtained from the shipper indicating that it contracted with CSL to be the carrier of the shingles load (ECF No. 21-7).3 This is just the type of factual dispute that is best saved for summary judgment. CSL’s motion to dismiss Count I and Count II will therefore be denied.

Count III will not be necessary to reach should it be determined that CSL was a carrier. As explained above, any consideration of FAAAA is therefore deferred. Separately, the defendants argue that Count III is deficient as a matter of law because, under the assumption that CSL was acting as a broker, there is no allegation that CSL knew or should have known of its selected carrier’s accident history or safety record. But the plaintiff does allege as much, see Compl. ¶ 136. She contends that Strong’s statistics regarding out of service vehicles and out of service driver rates were publicly available online and portended greater safety concerns. Compl. ¶ 52. Whether or not CSL, acting as a broker, had sufficient reason to know of Strong’s safety record is similarly a factual matter better considered at summary judgment. CSL’s motion to dismiss Count III will therefore be denied.

iii. Cowan Transportation Systems, LLC’s and Cowan Systems, Inc.’s Motion to Dismiss, or in the alternative, for Summary Judgement
The plaintiff has sued three Cowan entities alleging that they acted as “an enterprise,” see ECF No. 22-1 at p. 1, and because it is uncertain which of the Cowan entities was involved in the shipment at issue. See, e.g., Compl. ¶ 51. Cowan Systems, LLC. filed the motion to dismiss addressed above. Cowan Transportation Systems, LLC and Cowan Systems, Inc. bring this additional motion asserting that neither entity was in business at the time of the accident. The defendants put forth evidence in the form of an affidavit stating that CST filed Articles of Cancellation on July 8, 2010, and that CSI ceased its business activities in May, 2000. (ECF 19-1 pp. 4-5). The plaintiff is not satisfied with the Articles of Cancellation for CST. She seeks the opportunity to depose Mr. Morgan, the President of CSL, who avers in affidavit form that CST and CSI were shuttered at the relevant time. Ms. Ortiz points out that CSI, which the affidavit says was closed in 2000, was listed on the bill of lading for the shingles shipment in 2018, while CSL was listed in GAP Materials (the shingles company) shipment records. She seeks an opportunity to sort out whether any Cowan entity beyond CSL was involved in this shipment. Because CSI is listed on the paperwork concerning the shipment at issue, limited discovery into exactly which Cowan entities were involved here will be permitted, and the motion to dismiss will be denied as to Counts I, II, and III at this time.

A separate order follows.

All Citations
Slip Copy, 2019 WL 2492812

Footnotes

1
Separately, Strong also contends that the complaint improperly groups the defendants for purposes of vicarious liability. The parties go back and forth about an alleged enterprise among the defendants, the presumption of corporate separateness, apparent agency, and statutory employment. While some of Strong’s arguments may ultimately be persuasive, the defendants do not ask for any relief in this section, and it is the kind of factual matter best saved for summary judgment. The court therefore will not opine on it here.

2
Unpublished cases are cited not for their precedential value but for the persuasiveness of their reasoning.

3
As explained below, the defendants assert that only CSL was associated with the shipment and that CSI was a defunct entity by 2018. The bill of lading however, lists CSI.

2019 WL 2492282

United States District Court, N.D. Mississippi, Oxford Division.
DAVIAN LEE, INDIVIDUALLY, AND PERSONAL REPRESENTATIVE OF GERALD GLOVER, DECEASED AND ON BEHALF OF ALL THOSE ENTITLED TO RECOVER UNDER THE WRONGFUL DEATH AND SURVIVAL STATUTE PLAINTIFF
v.
RAYMOND GOODLIN, BIG BINDER EXPRESS, LLC, TRI STATE IDEALEASE, LLC, AND DARLING INGREDIENTS, INC. D/B/A DAR PRO DEFENDANTS
KEITH GLOVER PLAINTIFF
v.
RAYMOND GOODLIN, BIG BINDER EXPRESS, LLC., TRI-STATE IDEALEASE, INC., AND DARLING INTERNATIONAL, INC. DEFENDANTS
NO: 3:18-CV-124, NO: 3:18-CV-239
|
Filed: 06/14/2019

ORDER
MICHAEL P. MILLS UNITED STATES DISTRICT JUDGE NORTHERN DISTRICT OF MISSISSIPPI
*1 This cause comes before the Court on Defendant Darling Ingredients, Inc.’s (“Darling”) Motion for Judgment on the Pleadings (against Davian Lee’s Independent Liability and Punitive Damages Claim), Doc. #130 in the Davian Lee case (3:18–cv–00124–MPM–JMV), and Darling’s Motion for Judgment on the Pleadings (against Keith Glover’s Independent Liability and Punitive Damages Claim), Doc. #70 in the Keith Glover case (3:18–cv–00239–MPM–JMV). The Court, having reviewed the complaints, the parties’ submissions, and relevant authority is now prepared to rule.

I. Factual Background

a. Davian Lee Case (3:18–cv–00124–MPM–JMV)
On or about May 14, 2018 Gerald Glover (“Mr. Glover”), father of Plaintiff Davian Lee (“Lee”), was traveling North on US Highway 61 in Tunica County, Mississippi. Another motorist, Raymond Goodlin (“Goodlin”), travelled in the same direction in a semi-truck with a trailer attached. At some point during their travels, Goodlin crashed into the rear of Mr. Glover’s vehicle. Mr. Glover died in the collision.

In his Fourth Amended Complaint, Lee asserts claims of negligence against Big Binder Express, LLC., Tri State Idealease, Inc., and Darling International, Inc. Doc. #68. Lee alleges that Goodlin was employed by all three companies, that Big Binder and Tri-State were “the owners of the truck involved in the collision and … operated by … Goodlin,” and that Darling was “the owner of the trailer being hauled by … Goodlin.” Doc. #68 at 3–4.

Darling filed a Motion for Judgment on the Pleadings, Doc. #130, and asks that the Court dismiss Lee’s “independent liability and punitive damages claim Under Rule 12(c) of the Federal Rules of Civil Procedure.” Doc. #130 at 1.

b. Keith Glover Case (3:18–cv–00239–MPM–JMV)
On the day of the collision, Plaintiff Keith Glover (“Glover”) was the passenger of Mr. Glover, deceased. Glover alleges that the collision caused him “serious and permanent personal injuries.” Doc. #16.

In his Second Amended Complaint Glover asserts claims of negligence against all defendants. In the complaint Glover alleges that Goodlin “was acting as agent, servant and/or employee of” the defendant companies and that all acts of his negligence “are imputed to Defendants rendering them vicariously liable for all damages and injuries sustained by … [Glover].” Id. at 3.

Darling filed a Motion for Judgment on the Pleadings, Doc. #70, and asks that the Court dismiss Glover’s “independent negligence and punitive damages claim Under Rule 12(c) of the Federal Rules of Civil Procedure.” Doc. #70 at 1.

II. Standard
Rule 12(c) of the Federal Rules of Civil Procedure provides that “[a]fter the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings.” In a motion for a judgment on the pleadings “[t]he central issue is whether, in the light most favorable to the plaintiff, the complaint states a valid claim for relief.” Hughes c. Tobacco Inst., Inc., 278 F.3d 417, 420 (5th Cir. 2001). Such a motion “is appropriate only if there are no disputed issues of fact and only questions of law remain.” Id. (citing Voest-Alpine Trading USA Corp. v. Bank of China, 142 F.3d 887, 891 (5th Cir. 1998)). Moreover, in ruling on a motion for judgment on the pleadings, “the district court is confined to the pleadings and must accept all allegations contained therein as true.” Hughes, 278 F.3d at 420 (citing St. Paul Ins. Co. v. AFLA Worldwide Ins. Co., 937 F.2d 274, 279 (5th Cir. 1991)). In considering Rule 12(c) motions the court relies on the same standard as that of a Rule 12(b)(6) motion. Great Plains Tr. Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312 (5th Cir. 2002).

*2 To survive a Rule 12(b)(6) motion to dismiss, “a complaint must contain 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, 697, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A claim is facially 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.” Id. at 678. It is not necessary that a complaint contain detailed factual allegations, but it must set forth “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Colony Ins. Co. v. Peachtree Constr., Ltd., 647 F.3d 248, 252 (5th Cir. 2011) (quoting Twombly, 550 U.S. at 555). The Court must liberally construe the complaint in the light most favorable to the plaintiff and accept all well-pleaded facts as true. Woodard v. Andrus, 419 F.3d 348, 351 (5th Cir.2005).

III. Discussion
In both motions, Darling concedes that Lee and Glover provided sufficient facts to support their claims of negligence against Goodlin and vicarious liability against Darling. However, Darling argues that both plaintiffs failed to provide enough facts in their complaints to support the various claims of direct liability asserted against Darling.

a. Davian Lee Case (3:18–cv–00124–MPM–JMV)
In this action, Lee attached two exhibits to his response: Exhibit #1 is a portion of Goodlin’s deposition discussing his use of cruise control and his application of the brakes to turn off the cruise control; Exhibit 2 is a reconstruction report of the accident. In reply, Darling objects to the exhibits and requests that they be disregarded at this juncture. In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court must limit its examination “to the complaint, any documents attached to the complaint, and any documents attached to the motion to dismiss that are central to the claim and referenced by the complaint.” Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010). Because the exhibits attached to Plaintiff’s response and Defendant’s reply are not referenced by the complaint, the Court will only consider the complaint and any documents attached thereto.

i. Independent Liability Claims
In the operative complaint, the Fourth Amended complaint, Doc. #68, Lee alleges the following facts against Darling:
11.
… Goodlin was employed by … Darling. … Darling … was the owner of the trailer being hauled by … Goodlin at the time and date of the collision and was responsible for the maintenance and upkeep of the trailer.
Doc. #68 at 3–4.

The independent liability claims asserted against Darling read as follows:

NEGLIGENCE OF DARLING INGREDIENTS, INC. D/B/A DAR-PRO
18.
DARLING INGREDIENTS, d/b/a DAR-PRO, before and at the time of the collision herein, was guilty of intentional, willful, unlawful, wanton, reckless, and/or negligent acts and/or omissions which include but are not necessarily limited to the following:
a. Hiring and retaining RAYMOND GOODLIN;
b. Failing to properly train RAYMOND GOODLIN;
c. Failing to develop and maintain a fleet management program;
d. Violating state and federal laws and regulations as to the operation of tractor-trailers;
e. Failing to develop, implement, and/or enforce reasonable and prudent safety policies for the protection and safety of the public;
f. Failing to adhere to and abide by federal and state laws and regulations in regard to the maximum number of driving hours and hours of work for drivers of tractor-trailers;
g. Failing to maintain and/or properly complete forms and other documents required by state and federal laws and regulations governing motor carriers;
*3 h. Failing to perform an adequate pre-employment background check before hiring RAYMOND GOODLIN;
i. Negligent entrustment of its commercial vehicle and equipment to RAYMOND GOODLIN;
j. Failure to properly maintain equipment; and
k. Other acts of negligence.
This is the extent of Lee’s Complaint as to Darling. With four amendments to his complaint, the Court opines that the limited factual basis and the claims asserted against Darling, without more, do not satisfy the standard.
The Court agrees with Darling that Cecil v. Smith, No. 1:13CV201-SA-DAS, 2014 WL 1394360 (N.D. Miss. Apr. 9, 2014) is similar to this case. In Cecil, the Plaintiff, a motorist who was rear-ended by Smith, the driver of a semi-truck, alleged that the defendant trucking company, DLT Trucking, was “liable for negligence … ‘in the hiring, training, retention, and/or supervision of the drivers chosen to operate it,’ ” and that the company “committed a series of reckless and/or negligent acts” with regard to federal carrier regulations and overall training, hiring, retention, and supervision. Cecil, 2014 WL 1394360, at *1. In Cecil, the operative complaint upon which the court issued its ruling listed several allegations which the court summarized as follows:
Plaintiff alleges that DLT Trucking did not require Smith to comply with the duties and prohibitions of driver regulations under the FMCSRs, encouraged Smith to violate those regulations, failed to maintain or improperly maintained records and documents pursuant to those regulations, permitted Smith to operate his vehicle while impaired, failed to adequately train Smith, did not investigate the competence of Smith, and failed to take Smith “out of service,” among other claims.
Id. at *3. Having reviewed the complaint the court stated that “[t]hese statements [were] not followed by or made pursuant to any factual basis supporting that claim.” Id. Ultimately, the court held that the plaintiff had failed to plead any factual content to allow the court to draw any reasonable inference that the defendant was liable for a violation of federal carrier regulations and for negligent hiring, training, retention and/or supervision of Smith. Id. In discussing the reasoning for its holding, the court stated:
The only factual basis noted in the entire Complaint is that “[o]n or about November 13, 2012, Defendant Cullen T. Smith owned and operated a tractor-trailer in a eastbound direction on Interstate 40, in Shelby County, Tennessee.” Further, “Smith was DLT’s employee/agent acting within the scope of his employment duties as a professional truck driver and pursuant to DLT’s motor carrier operating authority.” “Cecil was the owner and operator of 2009 Dodge Caravan which was traveling eastbound on Interstate 40 when he began to slow down due to a previous crash scene that had occurred.” “At said time and place, Smith recklessly and/or negligent drove his 2006 tractor-trailer crashing into the rear of Cecil’s vehicle.”
There is no factual basis evidencing a reason that DLT failed to exercise due care in the hiring, training, retention, and/or supervision of Smith, or that DLT Trucking breached any duty pursuant to the Federal Motor Carrier Regulations other than Plaintiff’s bald assertions.
*4 Id. The same is true for this case. The extent of the facts provided in Lee’s complaint that mention Darling are: that Goodlin was employed by Darling, that Darling owned the trailer being hauled by Goodlin, and that Darling was responsible for the maintenance and upkeep of the trailer. The Court does not seek extremely detailed facts within the complaint, but it does look for just enough facts to support the claims asserted. It is not necessary that a complaint contain detailed factual allegations, but it must set forth “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Colony Ins. Co. v. Peachtree Constr., Ltd., 647 F.3d 248, 252 (5th Cir. 2011) (quoting Twombly, 550 U.S. at 555). Nowhere within his Complaint does Lee provide facts to support any of the claims asserted against Darling or to allow the court to reasonably infer that Darling is liable for the alleged misconduct. Lee has failed to meet his burden as to the claims asserted against Darling in Paragraph 18 of his Complaint. Accordingly, Darling’s motion, Doc. #130 in the Lee case, is granted in this regard.

ii. Punitive Damages Claim
Lee cannot recover punitive damages as to Darling. Under Mississippi law, punitive damages may be awarded if the claimant can “prove by clear and convincing evidence that the defendant against whom punitive damages are sought acted with actual malice, gross negligence which evidences a willful, wanton or reckless disregard for the safety of others, or committed actual fraud.” Miss. Code Ann. § 11–1–65(1)(a).

Plaintiff relies on Paragraphs 18 and 20 of his Complaint and argues that both paragraphs provide sufficient facts to support his claim of punitive damages against Darling. The punitive damages allegations against Darling are as follows:
DAMAGES
…
20.
The aforesaid acts and omissions of … Darling Ingredients, Inc., constitute intentional, willful, unlawful, reckless conduct and wanton disregard for the rights of Plaintiff, and for other members of the public utilizing the highways and roads and/or constitute gross negligence and recklessness as to show a total lack of regard for the rights of Plaintiff, and for other members of the public utilizing the highways and roads which entitles Plaintiff to recover punitive and exemplary damages against … Darling … in an amount to be assessed by the Court and/or jury.

Following the above standard, Plaintiff does not provide sufficient facts to support the punitive damages claim asserted against Darling. The limited facts do not allow the Court to reasonably infer that Darling acted with actual malice, gross negligence, willfulness, wantonness, or reckless disregard for the safety of others.

Additionally, to the extent that any of Plaintiff’s punitive damages claims against Darling arise under vicarious liability, such damages are not available under Mississippi law—“punitive damages are not available in Mississippi on the basis of vicarious liability.” Bell v. Coleman, No. 4:17–CV–47–SA–JMV, 2018 WL 3118614, at *4 (N.D. Miss. June 25, 2018) (citing Littlejohn v. Werner Enterprises, Inc., No. 1:14–CV–44–SA–DAS, 2015 WL 3484651 (N.D. Miss. June 2, 2015)).

Therefore, Darling’s motion, Doc. #130 in the Lee case, is granted on this issue.

b. Keith Glover Case (3:18–cv–00239–MPM–JMV)
The same result applies to Glover’s independent negligence and punitive damages claims. In his operative complaint, the Second Amended Complaint, Doc. #16, Glover alleges the following facts against Darling:
10. … Goodlin was acting as agent, servant and/or employee of … Darling, and all acts of negligence of Goodlin are imputed to [Darling] rending [it] vicariously liable for all damages and injuries sustained by … [Glover].
Doc. #16 at 3.

The independent negligence claims asserted against Darling are as follows:
12. [Glover] charges and alleges that … Darling [is] guilty of one, some, or all of the acts and/or omissions which constitute common law negligence, to wit:
(a) Failing to properly train Goodlin;
(b) Failing to properly examine the driving record of Goodlin;
*5 (c) Hiring untrained or unqualified personnel, namely Goodlin;
(d) Failing to perform an adequate pre-employment background check before hiring Goodlin;
(e) Failing to develop and maintain a fleet management program;
(f) Violating state and federal laws and regulations as to the operation of tractor-trailers;
(g) Failing to develop, implement, and/or enforce reasonable and prudent safety policies for the protection and safety of the public;
(h) Failing to adhere to and abide by federal and state laws and regulations in regard to the maximum number of driving hours and hours of work for drivers of tractor-trailers;
(i) Failing to maintain and/or properly complete forms and other documents required by state and federal laws and regulations governing motor carriers;
(j) Negligent entrustment of its commercial vehicle to Goodlin;
(k) Failure to properly maintain equipment; and
(l) Other additional acts of negligence proved at trial.
This is the extent of Glover’s Complaint as to Darling. As for punitive damages, Glover merely makes a request for such relief, without more. As previously discussed, it is not necessary that a complaint contain detailed factual allegations, but it must set forth “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Colony Ins. Co. v. Peachtree Constr., Ltd., 647 F.3d 248, 252 (5th Cir. 2011) (quoting Twombly, 550 U.S. at 555). Nowhere within his Complaint does Glover provide facts to support any of the independent negligence claims asserted against Darling or to support his request for punitive damages. In no way can the Court, relying on Glover’s Complaint, reasonably infer that Darling is liable for the alleged misconduct listed in paragraph 12 of the complaint or that it acted with actual malice, gross negligence, willfulness, wantonness, or reckless disregard for the safety of others.

In his response, Glover requested that “he be given leave to amend his complaint to correct any deficiencies” should the Court be “inclined to grant Defendant Darling[’s] [R]ule 12(c) motion to dismiss.” Doc. #75 at 8. Having reviewed Glover’s request, the Court finds that his request to amend should be denied. Pursuant to Rule 7(b)(3)(c) of the Local Uniform Civil Rules, “[a] response to a motion may not include a counter-motion in the same document. Any motion must be an item docketed separately from a response.” Here, Glover included his request to amend within his response to Darling’s Motion for Judgment on the Pleadings; such action is improper. Furthermore, even if the Court were to consider Glover’s request to amend, he failed to supply the Court with a proposed amendment. See L.U. Civ. R. 7(b)(2) (“If leave of court is required under Fed. R. Civ. P. 15, a proposed amended pleading must be an exhibit to a motion for leave to file the pleading….”). Without a proposed amendment the Court lacks the ability to determine what additional facts Glover intends to allege in his amended complaint and whether “the amended complaint would fail to state a claim upon which relief could be granted.” See Stripling v. Jordan Prod. Co., 234 F.3d 863, 872–73 (5th Cir. 2000). Therefore, Glover’s request is denied.

IV. Conclusion
*6 Accordingly, the Court finds that Defendant Darling’s Motions for Judgment on the Pleadings, Doc. #130 in the Lee case and Doc. #70 in the Glover case, are GRANTED.

SO ORDERED, this the 14th day of June, 2019.

All Citations
Slip Copy, 2019 WL 2492282