2019 WL 3457614

United States District Court, S.D. Florida.
MELISSA H. MEYER, et al., Plaintiffs,
v.
SUITABLE MOVERS, LLC, et al. Defendants.
CASE NO. 19-60816-CIV-ALTMAN/Hunt
|
07/31/2019

ROY K. ALTMAN, UNITED STATES DISTRICT JUDGE

ORDER
*1 THIS MATTER comes before the Court on the Defendants’ Motion to Dismiss (the “Motion”) [ECF No. 66], filed on May 20, 2019. The Plaintiffs filed a Response in Opposition (the “Response”) [ECF No. 71] on May 25, 2019. And the matter ripened on June 6, 2019, when the Defendants filed their Reply (the “Reply”) [ECF No. 87].

THE FACTS1
The Plaintiff, Melissa H. Meyer, is the mother of Emma Meyer and the owner of The Eyeglass Lady, LLC. In 2018, Meyer decided to move her family from Florida to the State of Washington. To facilitate this cross-country move, Meyer contacted the Defendant, Suitable Movers, LLC (“Suitable Movers”), and spoke directly with the owner, Defendant Jaimie Perez. After some negotiation, Meyer and Perez agreed that Suitable Movers would move, not only Meyer’s personal belongings, but also the Eyeglass Lady’s inventory, from Florida to Washington.

On January 5, 2019, Suitable Movers loaded both Meyer’s household goods and Eyeglass Lady’s entire business inventory into a moving van and left for the Suitable Movers warehouse in Sunrise, Florida. Suitable Movers apparently did not offer Meyer insurance coverage for her goods. At the warehouse, the Plaintiffs’ goods were unloaded from the moving van and packed onto a truck owned and operated by the Defendant, Carlyle Van Lines, Inc. (“Carlyle”). That truck was driven by the Defendant, Raymond Wells. At some point after the goods arrived at the warehouse, Perez called Meyer and told her that, because her shipment included goods she had not initially disclosed, her move would cost more than they had initially agreed. After some back and forth, Perez and Meyer agreed on a higher price.

Wells, driving the truck, departed Sunrise and headed to Jacksonville, where he stopped to load the belongings of several other individuals—Michael Barnosky, Jenna Barnosky, Joshua Dietrich, and Matthew Woodford—who were likewise moving their things to the Pacific Northwest. Wells then proceeded to Dothan, Alabama, where he picked up the household goods of Seneca Pena-Collazo. Now fully loaded, Wells and his truck finally departed for Washington.

On January 11, 2019, as Wells was driving through Arkansas, a fire unexpectedly started along the right rear wheel of the trailer. Although Wells did not, at first, notice the fire, he was soon alerted to it by a passing motorist who flagged him down. Unfortunately, by the time firefighters arrived, all of the cargo was destroyed. The fire department concluded that the fire was caused by the “failure of equipment or heat source.”

Eventually, the police arrived and questioned Wells, who told them that he was carrying the cargo of four military families. Because Wells did not inform the police about the Plaintiffs’ goods, the police initially contacted only the military families about the fire. On January 12, 2019, however, after Meyer called Perez to ask about her goods, Perez told her something to the effect of “I am sorry to tell you this but there was a brake malfunction which caused a fire and everything is gone.” Ultimately, Perez returned Meyer’s entire deposit.

*2 Days later, Meyer reached out to Alma Salvage, the scrap yard where the rubble was being held, to arrange for her to retrieve her belongings. According to the SAC, Alma Salvage initially had no problem with Meyer searching through the wreckage—but George Crumbly, an adjuster for Carlyle, did. For reasons that are left unexplained, Crumbly told Alma Salvage that Meyer should be prohibited from gathering her belongings from the wreckage. And, the SAC avers, because Alma Salvage depends on Missouri-based Carlyle for work, its owner—who did not wish to “make waves”—pliantly forbade Meyer from accessing her belongings.

THE LAW
The Carmack Amendment, enacted in 1906, established a uniform, nationwide framework that governs the liability of inter-state carriers for property loss. See New York, N.H. & H. R. Co. v. Nothnagle, 346 U.S. 128, 131 (1953); see also 49 U.S.C. § 14706 et. seq. Its reach is comprehensive: “Almost every detail of the subject is covered so completely that there can be no rational doubt but that Congress intended to take possession of the subject, and supersede all state regulation with reference to it.” Adams Express Co. v. Croninger, 226 U.S. 491, 506 (1913).

The Carmack Amendment thus preempts all state-law claims arising from the inter-state transportation and delivery of goods. See id. at 505–06; see also Southeastern Express Co. v. Pastime Amusement Co., 299 U.S. 28, 29 (1936) (negligence claims preempted); New York, Philadelphia & Norfold R.R. Co. v. Peninsula Produce Exch. of Md., 240 U.S. 34, 38 (1916) (Carmack Amendment preemption is “comprehensive enough to embrace all damages resulting from any failure to discharge a carrier’s duty with respect to any part of the transportation to the agreed destination”); Smith v. United Parcel Serv., 296 F.3d 1244, 1247–48 (11th Cir. 2002) (Carmack Amendment preempts state-law fraud, negligence, wantonness, and outrage claims). Indeed, the Eleventh Circuit has said that only claims “based on conduct separate and distinct from the delivery, loss of, or damage to goods escape preemption.” Smith, 296 F.3d at 1249.

ANALYSIS
In their joint Motion to Dismiss, the Defendants argue that the Carmack Amendment preempts all of the Plaintiffs’ state-law claims. See generally Mot. The Plaintiffs parry with five arguments in response. First, they claim that, because the Defendants failed to provide Meyer with a bill of lading, the Defendants have failed to satisfy the “prerequisites” for Carmack Amendment preemption. See Response at 6–9. Second, they say that their claims are not preempted because those claims are “separate and distinct from the Cargo Loss.” See id. at 10– 12. Third, they argue that their claims against Suitable Movers cannot be preempted because Suitable Movers is an intra-state shipper See id. at 12–14. Fourth, they contend that their claims against Perez cannot be preempted because Perez was merely a “broker,” and not a “carrier,” as those terms are defined under the law. See id. at 13–14. And Fifth, they assert that they have properly stated viable claims against Vanliner. See id. at 18 These arguments are, in each case, unpersuasive.

First, the presence of a bill of lading is not, as the Plaintiffs suggest, a “prerequisite” for Carmack Amendment preemption. As the statute itself makes plain: “Failure to issue a receipt or bill of lading does not affect the liability of a carrier.” 49 U.S.C. § 14706(a)(1). Notably, the Plaintiffs do not—because they cannot—point to a single statute, regulation, or case in support of their position that Carmack Amendment preemption is somehow contingent upon the presentation of a bill of lading, and the Court likewise has found no such case. To the contrary, the law in this regard is “that such a bill of lading is irrelevant to the applicability of the Carmack Amendment.” Hubbard v. All States Relocation Servs., Inc., 114 F. Supp. 2d 1374, 1381 (S.D. Ga. 2000).

*3 Second, the Plaintiffs have not, as they insist, raised any claim that is “separate and distinct from the Cargo Loss.” See Resp. at 10. Indeed, despite filing an eight-count complaint against five defendants, the Plaintiffs seek precisely the same damages for each count— $575,000, which they say includes “the loss of [Meyer’s] Household Goods, life long personal and sentimental belongings, and entire business inventory.” See, e.g., SAC ¶ 82. Since all of these losses occurred during the cargo fire, the Plaintiffs have made no claim for losses that are “separate and distinct from the Cargo Loss.” And, as the Fifth Circuit has explained, “the Carmack Amendment preempts any common law remedy that increases the carrier’s liability beyond the actual loss or injury to the property unless the shipper alleges injuries separate and apart from those resulting directly from the loss of shipped property.” Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 382 (5th Cir. 1998) (citing 49 U.S.C. § 11707(a)(1)) (emphasis added) (cleaned up). Because the Plaintiffs allege no injury “separate and apart from those resulting directly from the loss of shipped property,” all of their claims are preempted by the Carmack Amendment.

Third, the Plaintiffs’ argument that the Carmack Amendment does not apply to Suitable Movers because that Defendant handled only the intra-state leg of the move is meritless. “It is well-settled that, in determining whether a particular movement of freight is interstate or intrastate or foreign commerce, the intention existing at the time the movement starts governs and fixes the character of the shipment.” State of Texas v. Anderson, Clayton & Co., 92 F.2d 104, 107 (5th Cir. 1937), cert. denied, 302 U.S. 747 (1937). Because the Plaintiffs contracted with Suitable Movers to move their goods from Florida to Washington, that shipment—from the moment it left Meyer’s home—was conducted under the auspices of the Carmack Amendment. And the federal courts routinely apply Carmack Amendment preemption to shippers, like Suitable Movers, that handled only the intra-state leg of an inter-state (or foreign) shipment. See, e.g., Fine Foliage of Fla., Inc. v. Bowman Transp., Inc., 698 F. Supp. 1566, 1571 (M.D. Fla.

1988), aff’d, 901 F.2d 1034 (11th Cir. 1990).

Fourth, the Plaintiffs cannot escape Carmack Amendment preemption by alleging, in their Response to the Motion, that Perez was a “broker” and not a “carrier.” The Interstate Commerce Act, which the Carmack Amendment amends, defines a “motor carrier” as “a person providing motor vehicle transportation for compensation.” 49 U.S.C. § 13102(14). Conversely, a “broker” is defined as a person “other than a motor carrier…that as a principal or agent sells, offers for sale, negotiates for, or holds itself out by solicitation…as selling, providing, or arranging for, transportation by motor carrier for compensation.” See id. at (2). Accordingly, the dispositive question here is whether Perez provided transport, or whether, instead, he merely offered to provide transport. In the SAC, the Plaintiffs aver that “[t]he Defendant, JAIMIE PEREZ delivered the Plaintiffs’ Household Goods.” SAC ¶ 117 (emphasis added). The Plaintiffs’ allegations thus make clear that Perez providedtransport and, as such, that he acted as a “carrier,” and not a “broker,” under the law.

Fifth, the Plaintiffs have failed to state a claim against Vanliner. The SAC asserts three claims against Vanliner: one for aiding and abetting, see SAC at 33; one for violation of the Florida Unfair and Deceptive Trade Practices Act (the “FDUTPA”), see id. at 34; and a third for civil conspiracy, see id. at 36.

But, taking the last of these first, “Florida does not recognize civil conspiracy as a freestanding tort.” Banco de los Trabajadores v. Corez Moreno, 237 So. 3d 1127, 1136 (Fla. 3d DCA 2018) (citing SFM Holdings Ltd. v. Banc of Am. Secs., LLC, 764 F.3d 1327, 1338–39 (11th Cir. 2014) (applying Florida law)). Instead, civil conspiracy is a “vehicle for imputing the tortious acts of one coconspirator to another to establish joint and several liability.” See Lorillard Tobacco Co. v. Alexander, 123 So. 67, 80 (Fla. 3d DCA 2013). Since the SAC fails to allege any underlying tortious conduct, it necessarily fails to state a viable civil conspiracy claim under Florida law.

*4 Similarly, Florida law is pellucid that “FDUTPA does not apply to insurance companies.” Zarrella v. Pac. Life Ins. Co., 755 F. Supp. 2d 1218, 1226 (S.D. Fla. 2010). Because Vanliner is indisputably an insurance company, see SAC ¶ 16, the Plaintiffs cannot bring a valid FDUTPA claim against Vanliner.

The Plaintiffs’ aiding and abetting claim fares little better because the SAC does not adequately allege any underlying fraud. To state a viable claim for aiding and abetting fraud, a plaintiff must allege that “(1) there existed an underlying fraud; (2) the defendant had knowledge of the fraud; and (3) the defendant provided substantial assistance to advance the commission of the fraud.” Platinum Estates, Inc. v. TD Bank, N.A., No. 11-60670-CIV, 2012 WL 760791, at *3 (S.D. Fla. Mar. 8, 2012). Here, instead of alleging either an “underlying fraud” or Vanliner’s “substantial assistance” to that fraud, the SAC inappositely cites to unrelated salvage regulations, see SAC ¶ 126, and refers to a seemingly irrelevant injury to an unaffiliated third party, see id. ¶ 125. Neither of these immaterial references can sustain the SAC’s deficient aiding and abetting claim.

The Defendants also argue that the Plaintiffs’ Complaint is a “classic ‘shot gun pleading.’ ” See Mot. at 3. The Court agrees. When a complaint is “replete with conclusory, vague, and immaterial facts not obviously connected to any particular cause of action,” it is subject to dismissal as a shotgun pleading. See Weiland v. Palm Beach Cty. Sheriff’s Office, 792 F.3d 1313, 1322 (11th Cir. 2015). At its core, the Plaintiffs’ claim is relatively straightforward: Meyer contracted to move her belongings from Florida to Washington and, along the way, the moving truck burned. Rather than plainly pleading those facts, however, the Plaintiffs instead allege a fanciful conspiracy that spans eight counts, includes five Defendants, and somehow implicates the Mayor of Mulberry, Arkansas, see SAC ¶ 49, United States Senator John Boozman, see id. ¶ 50, four “military” families, see id. ¶ 43, the United States Department of Defense, see id. ¶ 59, and even a literal smoking gun, see id. ¶ 49. If the Plaintiffs choose to amend their complaint, these and other similar allegations should be left out. Because this Court’s deadline to amend pleadings was June 4, 2019, see Scheduling Order [ECF No. 49] at 2, any future dismissal will be with prejudice.

******

Accordingly, the Court hereby

ORDERS and ADJUDGES that the Defendant’s Motion to Dismiss [ECF No. 66] is GRANTED. The SAC [ECF No. 25] is DISMISSED without prejudice. The Plaintiffs may file an amended complaint no later than August 14, 2019. The Clerk of Court shall CLOSE this case for administrative purposes only. Any pending motions are DENIED as moot.

DONE AND ORDERED in Fort Lauderdale, Florida this 30th day of July 2019.

ROY K. ALTMAN

UNITED STATES DISTRICT JUDGE
cc: counsel of record

All Citations
Slip Copy, 2019 WL 3457614

Footnotes

1
The Court takes the below facts from the Plaintiff’s Second Amended Complaint (the “SAC”) [ECF No. 25].

2019 WL 3857877

United States District Court, N.D. Illinois, Eastern Division.
STEPHANIE FAVORITE, individually and as Personal Representative of the Estate of Guy Favorite, IV, Plaintiff,
v.
ALEKSANDAR SAKOVSKI, deceased, BB WOLF, INC., and COMPASS TRUCK RENTAL AND LEASING, LLC Defendants.
No. 19 C 1597
|
08/16/2019

Judge Thomas M. Durkin

MEMORANDUM OPINION AND ORDER
*1 Plaintiff Stephanie Favorite brings this action against Aleksandar Sakovski, BB Wolf, Inc., and Compass Truck Rental and Leasing following her husband’s death in a tractor-trailer collision on Interstate 39 in McLean County, Illinois. Compass moved to dismiss the claim against it for negligent entrustment. For the following reasons, Compass’s motion is denied.

Legal Standard
A Rule 12(b)(6) motion challenges the “sufficiency of the complaint.” Berger v. Nat. Collegiate Athletic Assoc., 843 F.3d 285, 289 (7th Cir. 2016). A complaint must provide “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), sufficient to provide defendant with “fair notice” of the claim and the basis for it. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). This standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While “detailed factual allegations” are not required, “labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. The complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “ ‘A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’ ” Boucher v. Fin. Sys. of Green Bay, Inc., 880 F.3d 362, 366 (7th Cir. 2018) (quoting Iqbal, 556 U.S. at 678). In applying this standard, the Court accepts all well-pleaded facts as true and draws all reasonable inferences in favor of the non-moving party. Tobey v. Chibucos, 890 F.3d 634, 646 (7th Cir. 2018).

Background
In 2018, Guy Favorite IV and Aleksandar Sakovski were driving tractor trailers in opposite directions on Interstate 39 in McClean County, Illinois when Sakovski crossed the median and crashed into Favorite. R. 1 ¶¶ 14-16. Both Favorite and Sakovski died from injuries they sustained in the crash. Id. ¶ 16.

At the time of the accident, Sakovski was transporting a load of auto parts on behalf of his employer, BB Wolf. Id. ¶¶ 13, 16. The truck Sakovski was driving, a 2016 Freightliner Cascadia, had been leased to BB Wolf by Compass Truck Rental. Id. ¶ 11.

Stephanie Favorite brings this action against Sakovski, BB Wolf, and Compass for her husband’s death.1 Count VIII of the complaint is against Compass for negligent entrustment. Favorite alleges that Compass knew or should have known that leasing the truck to BB Wolf presented an unreasonable risk of harm to Favorite and others because BB Wolf had a poor safety record and employed unqualified and inadequately trained commercial truck drivers, including Sakovski. Id. ¶ 40. Compass moved to dismiss Favorite’s negligent entrustment claim.

Analysis

I. Compass’s Late Filing
*2 Favorite argues that the Court should deny the motion to dismiss because Compass missed the filing deadline. A district court “has the discretion to permit the defendants to file their answer late ‘when the failure to act was the result of excusable neglect.’ ” Lewis v. School Dist. #70, 523 F.3d 730, 740 (7th Cir. 2008) (quoting Fed. R. Civ. P. 6(b)). The determination of excusable neglect is “at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission.” Id. (quoting Pioneer Inv. Servs. Co. v. Brunswick Assoc. Ltd., 507 U.S. 380, 395 (1993)). The factors to consider include “the danger of prejudice, the length of the delay and its potential impact on judicial proceedings, the reason for the delay, and whether the movant had acted in good faith.” Id.

Compass filed its motion to dismiss 12 days after the deadline. At the May status hearing, Compass provided no reasons for its tardiness other than that it was one of the first parties served in the lawsuit. That is not a good reason for delay and weighs against considering its motion. Nevertheless, the delay resulted in minimal impact on the judicial proceedings, and there is no reason to believe that Favorite has been prejudiced or that Compass acted in bad faith. As such, the Court will consider Compass’s motion on the merits. See Peoria Tazewell Pathology Grp., S.C. v. Messmore, 2011 WL 4498937, at *2 (N.D. Ill. Sept. 23, 2011) (“[T]o disregard Defendants’ Motion to Dismiss in its entirety as a penalty for not filing it before the date the answer was due (six days earlier) would not serve the interests of justice.”).

II. Merits

a) Graves Amendment
Compass first argues that the Graves Amendment bars Favorite’s claim to the extent she alleges Compass is vicariously liable for the collision. The Graves Amendment provides that:
An owner of a motor vehicle that rents or leases the vehicle to a person (or an affiliate of the owner) shall not be liable under the law of any State or political subdivision thereof, by reason of being the owner of the vehicle (or an affiliate of the owner), for harm to persons or property that results or arises out of the use, operation, or possession of the vehicle during the period of the rental or lease, if—
(1) the owner (or an affiliate of the owner) is engaged in the trade or business of renting or leasing motor vehicles; and
(2) there is no negligence or criminal wrongdoing on the part of the owner (or an affiliate of the owner).
49 U.S.C. § 30106(a). The parties agree that Compass is in the business of leasing motor vehicles. But by its plain terms, the Graves Amendment only applies if “there is no negligence…on the part of the owner.” The Graves Amendment does not bar Favorite’s claim because she alleges that Compass was negligent for leasing the truck to BB Wolf. See Johnke v. Espinal-Quiroz, 2016 WL 454333, at *5 (N.D. Ill. Feb. 5, 2016) (dismissing vicarious liability claims but not direct negligence claims under the Graves Amendment).

b) Failure to State a Claim
Compass next contends that Favorite failed to state a claim for negligent entrustment. To state a negligent entrustment claim, a plaintiff must allege that the defendant “gave another express or implied permission to use or possess a dangerous article or instrumentality which [defendant] knew, or should have known, would likely be used in a manner involving an unreasonable risk of harm to others.” Evans v. Shannon, 776 N.E.2d 1184, 1190 (Ill. 2002). The two primary considerations in negligent entrustment cases involving automobiles are: “(1) whether the owner of the vehicle entrusted the car to an incompetent or unfit driver, and (2) whether the incompetency was a proximate cause of a plaintiff’s injury.” Id.

*3 While the motion to dismiss is not entirely clear, Compass first appears to argue that it did not entrust the truck to Sakovski because the lease does not include his name.2 But this ignores that entrustment may be given by either express or implied permission. Implied permission “can be inferred from a course of conduct of the parties, their relationship, or from the behavior of the parties in specific circumstances.” Bishop v. Morich, 621 N.E.2d 43, 46 (Ill. App. Ct. 1993). This includes “a mutual acquiescence or lack of objection under circumstances signifying permission.” Watson v. Enter. Leasing Co., 757 N.E.2d 604, 610 (Ill. App. Ct. 2001) (quoting Rainey By and Through Rainey v. Pitera By and Through Pitera, 651 N.E.2d 747, 749 (Ill. App. Ct. 1995)). While the lease does not name Sakovski individually, it specifically permits BB Wolf’s drivers to drive the truck. And even if it did not, it would be nonsensical to conclude that Compass leased the truck to BB Wolf without giving its drivers implied permission to use it in the scope of their employment. Compass’s argument thus fails.

Compass next contends that Favorite did not allege Compass knew, or should have known, that Sakovski was an incompetent driver. In so arguing, Compass again points to the lease, which provides that the truck “will not be operated by any person other than Lessee or Lessee’s agents or employees, each of whom Lessee warrants to be a careful, dependable operator having a currently valid license.” R. 10 at 2. But Favorite alleges that Compass knew, or should have known, that BB Wolf had a “poor safety record” and “employed unqualified and poorly trained commercial truck drivers, including defendant Sakovski.” R. 1 ¶ 40. And it is plausible that Compass leased the truck to BB Wolf despite the red-flags surrounding Sakovski and the other drivers. See Evans, 776 N.E.2d at 1190 (holding evidence was insufficient to support finding of negligent entrustment but analyzing whether defendant knew, or had reason to know, that any of the company’s drivers were unlicensed, incompetent, or reckless). At this stage, Favorite gets the benefit of the doubt. She has alleged enough facts to support a claim that Compass was, or should have been, aware of Sakovski’s incompetence.

Compass next focuses on the second prong of the negligent entrustment claim, arguing that Favorite did not plausibly allege that Sakovski’s incompetence proximately caused the accident. Proximate cause “consists of two distinct elements: cause in fact and legal cause.” Id. (citing First Springfield Bank & Trust v. Galman, 720 N.E.2d 1068, 1072 (Ill. 1999)). Legal cause “is essentially a question of foreseeability.” First Springfield Bank, 720 N.E.2d at 1072. The relevant inquiry is “whether the injury is of a type that a reasonable person would see as a likely result of his or her conduct.” Id. In negligent entrustment actions, “the alleged incompetence of the driver must be a proximate cause of the negligent act that caused the injury, and the entrustor is liable, but only if his conduct is the legal cause of the complained of bodily harm.” Watson, 757 N.E.2d at 610 (citations omitted).

Compass argues that the complaint contains no facts to establish Sakovski’s negligence caused the collision. But this ignores the allegations that Sakovski was driving too fast, lost control of the truck, and crossed over the median before crashing into Favorite. That is enough to allege negligence. Moreover, it is reasonable to infer that Sakovski’s actions were due to his inexperience or recklessness. And if Compass leased the truck to BB Wolf knowing its drivers – including Sakovski – were poorly trained and unqualified, an accident in which Sakovski lost control of the vehicle was foreseeable. Compass counters that BB Wolf’s poor safety record may relate to parking violations and have nothing to do with highway driving, and thus the accident was not foreseeable. That may be so. And if it is, discovery will bear it out. But proximate cause is generally a question for the trier of fact. First Springfield Bank, 720 N.E.2d at 1071. And this is not a case in which the alleged facts clearly establish there was no legal causation. See Watson, 757 N.E.2d at 612-13 (granting summary judgment for rental car company because it was not foreseeable that someone would take the rental vehicle from the renter, and then a third person would take it from the second person and get into an accident). At this stage, Favorite need only plead enough facts “to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. She has done so here.

Conclusion
*4 For the reasons stated above, the Court denies Compass’s motion to dismiss Count VIII [9].

ENTERED:

Honorable Thomas M. Durkin

United States District Judge

Dated: August 16, 2019
All Citations
Slip Copy, 2019 WL 3857877

Footnotes

1
Favorite also named Syfan Logisitics, Inc as a defendant. Favorite later filed an amended complaint dismissing Syfan without prejudice. R. 33.

2
Compass attached the lease agreement for the truck to its motion to dismiss. A court may consider “documents attached to a motion to dismiss…if they are referred to in the plaintiff’s complaint and are central to his claim.” Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687, 690 (7th Cir. 2012) (alteration in original). The complaint references the lease and Favorite does not object to its consideration as central to her claim. The Court thus will consider the lease here.