2020 WL 1303136

United States District Court, D. South Carolina, Rock Hill Division.
LUCINDA S. RUH, Plaintiff,
v.
METAL RECYCLING SERVICES, LLC, and NUCOR CORPORATION, Defendants.
C/A. No. 0:19-cv-03229-CMC
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03/19/2020

CAMERON MCGOWAN CURRIE, Senior United States District Judge

Opinion and Order on Motion to Amend (ECF No. 34)
*1 Through this action, Plaintiff Lucinda S. Ruh (“Ruh”) seeks recovery for injuries she sustained when a truck owned by Norris Trucking1, LLC (“Trucking Company”) and operated by Cecil Norris (“Driver”) struck the vehicle Ruh was driving. ECF No. 1-1 ¶¶ 19-21 (Original Complaint); ECF No. 34-2 ¶¶ 32-34 (Proposed Amended Complaint). Although Ruh alleges Driver’s negligence was the immediate cause of the accident, e.g., ECF No. 1-1 ¶ 21, her Original Complaint sought to impose liability on Defendants Metal Recycling Services, LLC (“MRS”) and Nucor Corporation (“Nucor”) (collectively “Defendants”) based on allegations Defendants were liable for the actions of Trucking Company and driver because they knew or should have known of adverse information regarding Trucking Company’s safety record. Id. ¶¶ 23-27, 29. Thus, Ruh’s original claim against MRS and Nucor depended on a theory one or both were negligent in failing to exercise care in contracting with Trucking Company to ship goods.

By Order entered January 30, 2020, the court granted Defendants’ separate motions to dismiss. ECF No. 32. It did so because the Original Complaint failed to allege facts that would support imposition of liability (1) based on an employment or similar relationship or (2) under the limited circumstance in which South Carolina law imposes liability on a contracting party for actions of an independent contractor. Id. at 6-13 (Discussion § I.B.). The court allowed Ruh to move to amend within a specified period. Id. at 14 (Discussion § III).

The matter is now before the court on Ruh’s motion to amend. ECF No. 34. Both MRS and Nucor filed opposition memoranda. ECF Nos. 35, 36. Ruh did not file a reply. For reasons set forth below, the motion to amend is denied and the matter is dismissed with prejudice.

PROPOSED AMENDED COMPLAINT
Though the caption on the Proposed Amended Complaint lists only MRS and Nucor as Defendants, the body identifies a third Defendant, David J. Joseph Company (“DJJ”). E.g., ECF No. 34-2 ¶ 3. Ruh alleges DJJ serves as a freight or property broker and that either MRS or DJJ was responsible for hiring Trucking Company for the shipment at issue. ECF No. 34-2 ¶¶ 3, 11-13, 23 (alleging “MRS and/or DJJ hired [Trucking Company]”), 25 (alleging “Nucor’s counsel… admitted that Defendant DJJ acted as a broker in the load at issue”).

First Cause of Action: Negligent Selection. Ruh’s first cause of action is asserted against “MRS, Nucor and/or DJJ” and seeks relief for “NEGLIGENT SELECTION OF AN INCOMPETENT OR UNFIT MOTOR CARRIER.” Id. at 6. While allegations within this cause of action include that Nucor “knew or should have known” Trucking Company was not fit to transport goods, and had a “duty to select a competent and fit motor carrier,” Ruh’s preceding factual allegations do not allege Nucor hired or was involved in hiring Trucking Company. E.g. id. ¶¶ 38, 40. The first cause of action also includes conclusory allegations MRS, DJJ, and Nucor acted collectively in contracting with or hiring Trucking Company. E.g., id. ¶ 68 (“Upon information and belief, MRS, DJJ and Nucor acted individually and collectively to enter into a contract for the transportation of MRS’s scrap metal to its parent company”); id. ¶ 71 (MRS, Nucor, and/or DJJ, acting individually and jointly…breached the duty of care which it [sic] owed to the motoring public, including Plaintiff…by hiring and/or retaining [Trucking Company] when MRS either knew or should have known that said carrier posed a risk of harm to others”).

*2 Second Cause of Action: Statutory Employment. Ruh’s second cause of action is asserted solely against MRS and seeks relief based on a theory of “STATUTORY EMPLOYMENT/PRIVATE MOTOR CARRIER.” Id. at 14. Ruh alleges MRS is liable for Driver’s actions because he was “operating a tractor-trailer under the authority and dispatch of Defendant MRS transporting scrap metal owned by MRS.” Id. ¶ 76. Citing federal regulations, Ruh alleges MRS was the “statutory employer of [Trucking Company] and [Driver], making MRS vicariously liable for the wrongful acts of [both].” Id. ¶ 80. She, nonetheless, reaffirms that MRS’s relationship with Trucking Company and Driver resulted from MRS hiring “[Trucking Company] to haul loads of scrap metal[.]” Id. ¶ 78.

Third Cause of Action: Agency. Ruh’s third cause of action is also asserted solely against MRS. Id. at 14. Under this cause of action, Ruh alleges MRS is liable for Trucking Company and Driver’s actions because “MRS placed [Trucking Company and Driver] in a position that persons of ordinary prudence would be led to believe that [Trucking Company and Driver] were acting as agents of MRS.”. Id. ¶¶ 82-89. Ruh alleges Driver’s signature on a bill of lading “indicat[es] that he was the rightful owner of, or entitled to sell the scrap metal.” Id. ¶ 85. Based on this indication of ownership, she alleges Driver held “himself out to the public and Nucor as an agent of MRS[.]” Id. Ruh further alleges “Nucor, and others, relied on this apparent or actual agency to their detriment.” Id. ¶ 86. Ruh concludes MRS “as principal of [Trucking Company] and/or [Driver] is liable for the negligent and reckless acts or omissions of [both,]” thus making MRS liable for injuries Ruh sustained in the motor vehicle accident caused by Driver. Id. ¶¶ 87, 88.

STANDARD
Rule 15 of the Federal Rules of Civil Procedure provides that leave to amend “shall be freely given when justice so requires.” Fed. R. Civ. P. 15(a)(2). Leave to amend may be denied where the district court, in the exercise of its discretion, finds “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment” or other grounds. Foman v. Davis, 371 U.S. 178, 182 (1962). A proposed amendment is futile if the claim would not survive a motion to dismiss. Burns v. AAF-McQuay, Inc., 166 F.3d 292, 294-95 (4th Cir. 1999) (affirming denial of motion to amend based on futility).

DISCUSSION

I. First Cause of Action: Negligent Selection of Incompetent or Unfit Motor Carrier
Ruh’s first cause of action is futile for reasons addressed in the order dismissing her Original Complaint. ECF No. 32, Discussion § I.B..While the single claim in that complaint spoke in terms of negligent hiring, the court found it failed even if characterized as a claim for negligent selection of an independent contractor. Id. at 8-13. As explained in that order, as a general rule, South Carolina does not impose liability on a contracting party for actions of an independent contractor and Ruh had not alleged any circumstances that would avoid the general rule of non-liability. Id. at 11-13.

Neither the Proposed Amended Complaint nor Ruh’s arguments in support of her motion to amend suggest any new allegations that would avoid this general rule. Instead of pointing to new allegations differentiating the proposed first cause of action from the single claim in the Original Complaint, Ruh cites multiple decisions within the Fourth Circuit that have allowed a claim for negligent selection of an independent contractor. This is, in essence, an improper argument for reconsideration of the order dismissing the Original Complaint as argued by Defendants. See ECF No. 35 at 4, 5; ECF No. 36 at 7-10. Even if properly presented, the argument would fail because the decisions on which Ruh relies do not address South Carolina law. Thus, they fail to suggest error in the court’s prior analysis.

*3 Accordingly, Ruh’s motion to amend is denied as to her proposed first cause of action. As this is the only claim that names Nucor or DJJ as Defendants, the court need not consider other grounds for denial of the motion to amend as to these entities. See, e.g., ECF No. 36 at 13, 14 (arguing motion was unduly delayed and in bad faith as to DJJ); ECF No. 36-1 (declaration of counsel explaining email on which Ruh relies for allegation DJJ may have acted as a “broker” referred to DJJ’s brokerage of the scrap metal, not brokerage of shipping services).

II. Second Cause of Action: Statutory Employment
The second cause of action seeks to assert a claim against MRS based on a theory Trucking Company or Driver were statutory employees of MRS, which “was acting…as a private motor carrier in the transaction and transportation at issue[.]” ECF No. 34-2 ¶ 75; see also id. ¶ 80 (“Pursuant to 49 CFR § 390.5, MRS is the statutory employer of [Trucking Company and Driver], making MRS vicariously liable”). Beyond conclusory allegations, Ruh offers nothing to support an inference MRS was acting as the motor carrier as opposed to as a shipper with respect to the shipment at issue. To the contrary, under the same cause of action (as elsewhere) she alleges “MRS…hired [Trucking Company] to haul loads of its scrap metal[.]” Id. ¶ 78. As the court concluded in the prior dismissal order (addressing the same underlying premise), the non-conclusory factual allegations support only an inference MRS was acting as a shipper. ECF No. 32 at 7, 8 (citing, e.g. Harris v. FedEx Nat. LTL, 760 F.3d 780 (8th Cir. 2014). The motion to amend is, therefore, denied as to the second cause of action based on futility.

III. Third Cause of Action: Agency
Ruh’s proposed third cause of action seeks recovery based on allegations Driver became MRS’s apparent agent because (1) Driver signed an MRS bill of lading, (2) the signature evidenced an agency relationship, and (3) Nucor and (unidentified) others relied on that evidence of agency (for unknown purposes). For present purposes, the court will assume without deciding that these allegations would support imposition of liability on MRS in favor of any person who relied on the bill of lading as a representation of Driver’s authority to take action relating to the load. See Graves v. Serbin Farm, 409 S.E.2d 769, 771 (S.C. 1991) (elements for claim based on apparent agency). Ruh does not, however, allege she was aware of the Driver’s signature on the bill of lading or changed her position in reliance on a belief Driver was acting as MRS’s agent. To the contrary, she seeks relief for injuries arising from a motor vehicle accident based on the driver’s negligence rather than her own reliance on his perceived authority to act for MRS. Under these circumstances, the apparent agency claim has no application to the injury for which Ruh seeks relief. The third cause of action is, therefore, futile.

CONCLUSION
For reasons set forth above, Ruh’s motion to amend is denied because all of her proposed claims are futile. Because Ruh has failed to proffer (or suggest) any viable cause of action despite a second opportunity to do so, dismissal is with prejudice.

IT IS SO ORDERED.
s/Cameron McGowan Currie

CAMERON MCGOWAN CURRIE

Senior United States District Judge

Columbia, South Carolina

March 19, 2020
All Citations
Slip Copy, 2020 WL 1303136

2020 WL 1076040

United States District Court, E.D. Texas.
Jean Joseph Plaintiff,
v.
Dennis K. Hood and Greenwood Motor Lines, Inc., d/b/a R+L Carriers, Defendants.
No. 6:19-cv-00105
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Filed 03/06/2020
Before BARKER, District Judge

ORDER
J. CAMPBELL BARKER United States District Judge
On March 23, 2019, plaintiff filed this negligence and vicarious liability action after a June 2017 tractor-trailer collision. Doc. 1. The case was referred to United States Magistrate Judge K. Nicole Mitchell pursuant to 28 U.S.C. § 636(b). Over the next several months, defendants filed motions to dismiss some of plaintiff’s claims (Docs. 6 and 13) and plaintiff amended his complaint twice (Docs. 10 and 25). In his live pleading, plaintiff asserts negligence and negligence per se claims against defendant Hood, and vicarious liability and negligence claims against defendant R+L Carriers. Doc. 25. Shortly after plaintiff filed his second amended complaint, defendants filed a motion to dismiss plaintiff’s direct negligence claim against R+L pursuant to Federal Rule of Civil Procedure 12(b)(6). Doc. 31. Defendants’ earlier motions to dismiss also challenged the direct negligence claim against R+L. See Docs. 6 and 13.

The magistrate judge issued a report (Doc. 47) recommending that the court grant defendant’s motion and dismiss plaintiff’s direct negligence claims against R+L with prejudice. Plaintiff then filed written objections to the report. Doc. 54. The court reviews objected-to portions of a magistrate judge’s report and recommendation de novo. See Fed. R. Civ. P. 72(b)(3); 28 U.S.C. § 636(b)(1) The court conducting a de novo review examines the entire record and makes an independent assessment under the law. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).

Plaintiff objects to three of Judge Mitchell’s findings and recommendations. First, plaintiff contends that the report mischaracterizes his direct negligence claims against R+L as negligent hiring, retention, and supervision claims—claims that plaintiff alleged in his original complaint but removed from his live pleading. Second, plaintiff claims that the report holds his complaint to a higher pleading standard than required by Twombly and Iqbal. Third, plaintiff argues that Judge Mitchell’s recommendation to dismiss plaintiff’s claim with prejudice is in error. For the reasons below, the court overrules plaintiff’s objections.

Plaintiff’s first objection argues that the magistrate judge erred “to the extent that [she] based her Report and Recommendations on claims that Plaintiff withdrew long ago.” Doc. 54. Those now-withdrawn claims are negligent hiring, training, and retention. This objection overlaps significantly with plaintiff’s second objection—that the magistrate judge held plaintiff’s claims to a higher standard than required by Twombly and Iqbal. Indeed, both objections entitle plaintiff to de novo review on the same topics: whether plaintiff’s amendment complaint satisfies the Rule 8(a)(2) pleading standard and whether plaintiff has stated a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). As such, the court will review those objections together.

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). Although Rule 8 does not require “detailed factual allegations,” it “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). When challenged by a Rule 12(b)(6) motion, a complaint’s factual allegations “must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). This requires a plaintiff to “state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678. A claim has facial plausibility when “plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. If the “well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct” then plaintiff is not entitled to relief. Id. at 679. In reviewing defendants’ 12(b)(6) motion, the court must accept “all well-pleaded facts as true and view[ ] those facts in the light most favorable to the plaintiff.” True v. Robles, 571 F.3d 412, 417 (5th Cir. 2009).

Defendants moved to dismiss plaintiff’s direct negligence claims against R+L pursuant to Rule 12(b)(6). Doc. 31. This case arises from a collision between two tractor-trailers. Plaintiff, one of the tractor-trailer drivers, alleges that he was injured after defendant Hood’s tractor-trailer collided with his own. At the time of the accident, Hood worked for defendant R+L Carriers. Although plaintiff has alleged several claims against both defendants, only his direct negligence claim against R+L is at issue here.

Plaintiff contends that R+L was directly negligent for his injuries because the Federal Motor Carrier Safety Regulations “impose upon R+L Carriers the legal duty to require its drivers to comply with the [regulations].” Doc. 25 at ¶ 24 (citing 49 C.F.R. § 390.11). In addition, plaintiff argues that “Hood’s duty to operate the tractor-trailer at issue herein in accordance with the laws, ordinances, and regulations of the State of Texas applies equally to Defendant R+L Carriers.” Id. According to the complaint, R+L breached this duty because defendant Hood failed to operate his tractor-trailer in compliance with various laws and regulations. More specifically, plaintiff claims that R+L breached its duty by: (1) failing to train and properly supervise Hood in accordance with regulations; (2) failing to ensure that Hood “kept a proper lookout in the operation” of his vehicle; (3) allowing Hood to operate his vehicle without regard for the safety and welfare of other persons or property; (4) failing to ensure that Hood paid reasonable attention at the time of the accident; (5) failing to ensure that Hood properly and timely applied his brakes; and (6) failing to ensure that Hood drove at a reasonable speed. Doc. 25 at ¶ 26(a-f). Plaintiff then concludes that these acts or omissions “proximately caused the subject collision and Plaintiff’s injuries and damages.” Id. at ¶ 27.

As a matter of law, plaintiff’s contentions are insufficient to establish a claim for direct negligence against R+L. Under Texas law, negligence consists of three elements: duty, breach, and damages proximately caused by that breach. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). As a motor carrier, R+L’s duty under Texas law is to “take steps to prevent injury to the driving public by determining the competency of a job applicant to drive one of its trucks.” Morris v. JTM Materials, Inc., 78 S.W.3d 28, 49 (Tex. App. 2002). But plaintiff has failed to plead facts showing that R+L breached this duty. Indeed, plaintiff supports its allegations with only legal conclusions. As outlined above, plaintiff offered six arguments describing R+L’s purported breach. Yet plaintiff offered no facts supporting those arguments. Instead, plaintiff concludes that at least one of its arguments must be true because there was a collision. This is incorrect. Plaintiff cannot make a facially plausible argument that R+L breached its duty if the only basis for that argument is that (1) a collision occurred, and (2) if Hood is responsible for that collision, R+L is directly negligent for its employee’s role.

As a result, plaintiff’s theory of R+L’s duty and breach is insufficient. He concludes that because Hood “failed to comply with the laws, ordinances, and regulations of the State of Texas when the subject collision occurred, it is likely that whatever training Defendant R+L Carriers provided Defendant Hood regarding such laws, ordinances, and regulations (if any) was deficient.” Doc. 25 at ¶ 25. This is not a factual allegation, but instead a “naked assertion,” raising only the “sheer possibility” that R+L acted unlawfully. See Iqbal, 556 U.S. at 678. Plaintiff is not expected to meet a probability requirement, but he must plead facts that are more than “merely consistent with” R+L’s liability. See id. Because plaintiff has failed to do so, his complaint “stops short of the line between possibility and plausibility,” and fails to meet the Rule 8(a)(2) standard.

Lastly, plaintiff objects to the Judge Mitchell’s recommendation that his negligence claim against R+L be dismissed with prejudice. A court will ordinarily give plaintiffs “at least one opportunity to cure pleading deficiencies.” Great Plains Tr. Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002). The court will dismiss a claim with prejudice, however, “if the defects are incurable or the plaintiffs have already alleged their best case.” Pierce v. Hearne Indep. Sch. Dist., 600 F. App’x 194, 200 (5th Cir. 2015) (citing Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir.1998). Moreover, if Rule 12(b)(6) dismissal is proper and a plaintiff is “aware of the defendants’ objections to their complaint as written,” the court can dismiss plaintiff’s claim with prejudice if plaintiff failed to proffer a forthcoming cure to the defect. See Goldstein v. MCI WorldCom, 340 F.3d 238, 255 (5th Cir. 2003).

Here, plaintiff has filed three complaints (Docs. 1, 10, and 25) and defendants have filed three motions to dismiss (Docs. 6, 13, and 31). In each motion to dismiss, defendants argued that plaintiff failed to state a valid direct negligence claim against R+L. Despite plaintiff’s repeated attempts to fix its deficiencies, the court has concluded that it failed to do so. In addition, plaintiff’s objection does not proffer a proposal for correcting this deficiency. Instead, plaintiff argues that he should not be barred from reasserting negligence claims against R+L “should new information become available.” Doc. 54. Plaintiff’s response to the instant motion similarly acknowledges that “[d]efendants have provided authorities that permit the District Court to dismiss claims with prejudice to their refilling.” Doc. 32. As such, plaintiff’s direct negligence claim against R+L is dismissed with prejudice to its refilling.

For the foregoing reasons, the court overrules plaintiff’s objections and adopts the magistrate judge’s report. Defendants’ motion to dismiss (Doc. 31) is granted with prejudice pursuant to Rule 12(b)(6).

So ordered by the court on March 6, 2020.

All Citations
Slip Copy, 2020 WL 1076040