2020 WL 897609

United States District Court, E.D. Kentucky,
Northern Division.
at Covington.
Jeffery Brian KIDWELL, Plaintiff
v.
MAYBACH INTERNATIONAL GROUP, et al., Defendants
CIVIL ACTION NO. 2:19-cv-149 (WOB-CJS)
|
Signed 02/24/2020
Attorneys and Law Firms
Caroline Ramsey Taylor, Whitfield Bryson & Mason, LLP, Nashville, TN, Douglas B. Abrams, Abrams & Abrams, Raleigh, NC, James R. McKoon, McKoon Williams Atchley & Stanley, Chattanooga, TN, John C. Whitfield, Whitfield Bryson & Mason, LLP, Madisonville, KY, for Plaintiff.
Brian Pokrywka, Lewis Brisbois Bisgaard & Smith LLP, Ft. Wright, KY, for Defendants.

MEMORANDUM OPINION AND ORDER
William O. Bertelsman, United States District Judge
*1 This personal injury action arose out of a vehicle accident that occurred in a gas station parking lot in Boone County, Kentucky. Plaintiff has brought claims for negligence and negligence per se as well as claims for negligent hiring, retention, supervision, entrustment, and training. (Doc. 1-1 ¶¶ 24-47). This case is now before the Court on Plaintiff’s motion to remand and Defendants’ partial motion to dismiss for failure to state a claim. (Docs. 4, 8). For the reasons below, both motions are DENIED.

I. Factual Background
The accident occurred on April 18, 2018, while Plaintiff was inspecting a tractor trailer driven by Nenard Madzarevic. (Doc. 1-1 ¶¶ 14, 18-20). Plaintiff was standing next to the trailer when Madzarevic drove forward and turned left. (Id. ¶¶ 18, 20). Madzerevic’s truck pinned Plaintiff against his own vehicle, crushing him and dragging him between the two vehicles until finally throwing him to the pavement. (Id. ¶ 20). The accident left Plaintiff with serious injuries, and he was transported via helicopter to Cincinnati for treatment.

Plaintiff originally filed suit in Cook County, Illinois, where Defendant Maybach has its headquarters. Maybach moved to dismiss the suit based on forum non conveniens because the accident occurred in Kentucky and several witnesses were still located in the area. (Doc. 8-4). The Cook County Court granted Maybach’s request and dismissed the suit under the Illinois statute addressing forum non conveniens. See Ill. Sup. Ct. R. 187(c)(2). Plaintiff refiled the suit in Boone County, Kentucky, and Defendants then removed the Boone County suit to this Court.

II. Arguments and Analysis

A. Motion to Remand
Plaintiff’s motion to remand argues that Defendants waived their right to remove when they asked the Illinois state court to dismiss the suit filed there. In Plaintiff’s view, Defendants made explicit representations to the Illinois court that they planned to litigate the suit in the state courts of Kentucky. Plaintiff bases this mostly on Defendant Maybach noting that Boone County Courts heard fewer cases and had a faster resolution time.

Plaintiff also argues that Defendants should be estopped from removing the case to federal court because Defendants’ references to Kentucky state court, in documents filed in Illinois state court, amounted to false representations of material fact that Defendants knew Plaintiff would rely upon when he filed suit in Boone County, Kentucky.

Plaintiff’s motion to remand is denied. While a party can waive its right to remove a case to federal court, such waivers must be clear and unequivocal. McKinnon v. Doctor’s Associates, Inc., 769 F.Supp 216, 217 (E.D. Mich. 1991) (citing Regis Associates v. Rank Hotels Lt.d, 894 F.2d 193, 195 (6th Cir. 1990)). Though Defendants referenced the docket of Boone County, Kentucky, in documents filed in Cook County, Illinois, they never clearly and unequivocally stated that they intended to waive their right to remove or litigate the case to a resolution in Kentucky state courts.

*2 Defendants’ references to Boone County include pointing out that the accident occurred there and noting that several witnesses live and work in the area. Defendant also provided comparisons between Cook County, Illinois’s, and Boone County, Kentucky’s, dockets and filing statistics, arguing that the case would be resolved faster in Kentucky’s courts. Contrary to Plaintiff’s belief, these references to filing statistics and to the location of the accident and witnesses are not clear and unequivocal expressions of an intent to litigate the case to a final resolution in Boone County, Kentucky.

A defendant may also indicate that it is submitting to the jurisdiction of the state court by making affirmative use of the process of the state court. Bedell v. H.R.C., Ltd., 522 F.Supp. 732, 738 (E.D. Ky. 1981). That is, defendants are not allowed to experiment in state court and then remove for another try in federal court. Id. Typically, in order to constitute a waiver, a defendant’s actions in state court must strike at the merits of a plaintiff’s claims. Id. at 739.

Merely filing a motion to dismiss based on forum non conveniens does not reach the merits of any claim. Courts dismiss cases based on forum non conveniens solely for administrative and public policy reasons. Since Defendants’ motion never addressed the merits of Plaintiff’s claims, Defendants’ arguments about why litigating in a different location would be preferable are insufficient to constitute an implicit waiver of their right to remove. Further, once the case was refiled in Kentucky state court, Defendants took no action in the Kentucky court beyond removing the case to this Court.

Plaintiff’s argument that Defendants should be equitably estopped from removing because they misrepresented a material fact is also unavailing. Defendants neither expressly represented that they intended to litigate the suit in state court, nor did they enter into an agreement with Plaintiff to do so. Again, Defendants did nothing more than file a motion to have the case dismissed so that it could be refiled in a more appropriate location. And that motion argued that Kentucky was a better forum because the accident occurred there, several witnesses still live in the area, and that the docket in Boone County, Kentucky, was likely less congested than the one in Cook County, Illinois. Neither Defendants’ actions nor their arguments can be construed as a promise to litigate the suit entirely in the state courts of Kentucky.

B. Partial Motion to Dismiss
Regarding the partial motion to dismiss Plaintiff’s claims of negligent hiring, retention, supervision, entrustment, and training, Defendants insist that Plaintiff merely recited the elements of these claims without providing details that support them.

Factual allegations in a complaint “must be enough to raise a right to relief above the level of speculation.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). But as Iqbal notes, determining whether a complaint states a plausible claim is ultimately a context-specific task that requires a court to draw on its experience and common sense. Iqbal, 556 U.S. at 1940.

While some of the complaint’s allegations are brief, there are several sensible reasons for allowing the claims to go forward. First, Plaintiff’s allegations give Defendants notice of Plaintiff’s claims. Next, allowing Plaintiff’s claims to go forward is unlikely to significantly expand the scope of discovery, and dismissing the claims before discovery could prolong the litigation by forcing Plaintiff to amend the complaint during or after discovery. Finally, Plaintiff’s obligations under Federal Rule of Civil Procedure 11 require him to dismiss unsupported claims, and Defendants will have the opportunity to move for summary judgment should they feel the claims are unsupported.

III. Conclusion
*3 For the reasons above, IT IS ORDERED that both Plaintiff’s motion to remand and Defendants’ partial motion to dismiss are DENIED. (Docs. 4, 8).

All Citations
Slip Copy, 2020 WL 897609

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
|
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