United States District Court, N.D. Texas, Dallas Division.

DIYAN PUN, Plaintiff,

v.

FERRARAI JONES and ROYAL TRUCKING COMPANY, Defendants.

Civil Action No. 3:24-CV-1059-D

|

Filed 07/22/2024

MEMORANDUM OPINION AND ORDER

SIDNEY A. FITZWATER SENIOR JUDGE

*1 Plaintiff Diyan Pun (“Pun”) sues defendants Ferrarai Jones (“Jones”) and Royal Trucking Company (“Royal”) for injuries he sustained from a hit-and-run collision allegedly perpetrated by Jones. Royal removed the case to this court based on diversity of citizenship.¹ Jones now moves for partial dismissal under Fed. R. Civ. P. 12(b)(6) for failure to state a claim on which relief can be granted. For the reasons that follow, the court grants the motion in part and denies it in part.

I

According to Pun’s first amended complaint, he was driving his car in the left lane of the President George Bush Turnpike on the evening of April 24, 2023, while Jones, who was employed by Royal as a truck driver, was driving a flatbed 18-wheeler in the center lane. As Pun neared Jones’s vehicle from behind, intending to pass, Jones “engaged in a hasty lane change,” “sharply steer[ing] his tractor trailer to the left” and colliding with Pun’s car. Am. Compl. ¶¶ 8-9. Pun and Jones both stopped and exited their vehicles to survey the damage. Pun alleges that he dialed 911 to request emergency assistance, but that Jones fled the scene in his vehicle before the authorities could arrive, without exchanging information.

The state trooper who responded to the scene determined Jones’s license plate number and employer with the help of dispatch and contacted Royal’s safety department to request that Jones either stop his vehicle or return to the incident location. Jones ultimately stopped at a location about 43 miles away from the site of the collision and met with the trooper, and allegedly told the trooper that “he left the scene because he was terrified and admitted that the actions look[ed] bad upon him.” Id. ¶¶ 16-17. Pun alleges that the trooper “ultimately determined Jones to be the sole driver responsible for the crash and identified an unsafe lane change by him to be the contributing factor.” Id. ¶ 20.

Pun alleges that the collision resulted in disabling damage to his car, which had to be towed from the scene, and caused him bodily injury that necessitated medical care.

*2 Pun filed this lawsuit in state court, alleging in his state-court original petition (1) claims against Jones for negligence and negligence per se; (2) direct liability claims against Royal for negligent hiring, training, supervision, and retention and negligent entrustment; and (3) a vicarious liability claim against Royal for negligence. After Jones moved for partial dismissal under Rule 12(b)(6), Pun filed a first amended complaint, and the court denied the motion to dismiss without prejudice as moot.

Jones now moves for partial dismissal of Pun’s first amended complaint under Rule 12(b)(6), seeking to dismiss: (1) the negligence per se claim against him; (2) the negligent hiring, training, supervision, and retention claim against Royal; and (3) the negligent entrustment claim against Royal. Pun has not responded to the motion, and it is now ripe for decision.² The court is deciding the motion on the briefs, without oral argument.

II

The court first considers whether Jones has standing to seek dismissal of the claims challenged in his motion.

For Rule 12(b) motions, “[t]he movant may obtain relief only as to himself; [he] has no standing to seek dismissal of the action as to nonmoving parties.” 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1349 (4th ed. 2024); see, e.g., Mantin v. Broadcast Music, Inc., 248 F.2d 530, 531 (9th Cir. 1957); Ortega-Santos v. S.F. Health Sys., Inc., 494 F.Supp.3d 88, 90 n.1 (D.P.R. 2020); Shultz v. Nomac Drilling, LLC, 2017 WL 2958621, at *2 & n.3 (W.D. Okla. July 11, 2017) (collecting cases).

Royal has not joined Jones in bringing the instant motion. Jones therefore only has standing to seek dismissal of claims that are asserted against him—not of claims asserted against Royal. Because two of the claims challenged in this motion are direct liability claims against Royal, Jones lacks standing to seek dismissal of them. The court therefore denies the motion as to these claims. In the remainder of this memorandum opinion and order, the court considers Jones’s motion as to the negligence per se claim only, because that claim is asserted against Jones personally and Jones therefore has standing to seek dismissal of it.

III

“In deciding a Rule 12(b)(6) motion to dismiss, the court evaluates the sufficiency of [the plaintiff’s] complaint by ‘accept[ing] all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.’ ” Bramlett v. Med. Protective Co. of Fort Wayne, Ind., 855 F.Supp.2d 615, 618 (N.D. Tex. 2012) (Fitzwater, C.J.) (second alteration in original) (internal quotation marks omitted) (quoting In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)). To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.; see also Twombly, 550 U.S. at 555 (“Factual allegations must be enough to raise a right to relief above the speculative level[.]”). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘shown’—‘that the pleader is entitled to relief.’ ” Iqbal, 556 U.S. at 679 (quoting Rule 8(a)(2)) (alteration omitted). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678.

IV

A

*3 Negligence per se applies when the courts have determined that the violation of a particular statute is negligence as a matter of law. See Parrott v. Garcia, 436 S.W.2d 897, 900 (Tex. 1969); Smith v. Merritt, 940 S.W.2d 602, 607 (Tex. 1997). “In such a case, … [t]he statute itself” provides the standard of care by “stat[ing] what a reasonable, prudent person would have done.” Bent v. Mackie Wolfe Zientz & Mann, P.C., 2013 WL 4551614, at *5 (N.D. Tex. Aug. 28, 2013) (Fitzwater, C.J.) (quoting Jackson v. Kim, 2004 WL 6040969, at *3 (E.D. Tex. Sept. 27, 2004)). Conversely, “[w]here a statute incorporates the ordinarily prudent person standard, negligence per se does not apply because the statute does not establish a specific standard of conduct different from the common-law standard of ordinary care.” Supreme Beef Packers, Inc. v. Maddox, 67 S.W.3d 453, 456 (Tex. App. 2002, pet. denied).

“The threshold questions in every negligence per se case involving a penal statute are whether the plaintiff belongs to the class that the statute was intended to protect and whether the plaintiff’s injury is of a type that the statute was designed to prevent.” Discovery Operating, Inc. v. BP Am. Prod. Co., 311 S.W.3d 140, 162 (Tex. App. 2010, pet. denied) (citation omitted). “If a plaintiff satisfies these threshold questions, the court must determine whether it is appropriate to impose negligence per se liability for violations of the statute.” Id. The Supreme Court of Texas has identified

five nonexclusive factors to consider in determining whether a statute establishes an appropriate standard for negligence per se liability: (1) whether the statute is the sole source of any tort duty from the defendant to the plaintiff or merely supplies a standard of conduct for an existing common-law duty; (2) whether the statute puts the public on notice by clearly defining the required conduct; (3) whether the statute would impose liability without fault; (4) whether negligence per se would result in ruinous damages disproportionate to the seriousness of the statutory violation, particularly if the liability would fall on a broad and wide range of wrongdoers; and (5) whether the plaintiff’s injury is due to a direct or indirect violation of the statute.

Id. at 162-63 (citation omitted). And “[i]n determining whether a penal statute creates an appropriate standard of care, [the court] may consider whether the adoption of such a standard would be inconsistent with legislative intent.” Smith, 940 S.W.2d at 607. “The mere fact that the legislature adopts a criminal statute does not mean that the courts must accept it as a standard for civil liability.” Discovery Operating, 311 S.W.3d at 162 (citation omitted). The court, in its discretion, “may accept or reject the criminal statute or use such part thereof as may be deemed appropriate for [its] purposes.” Rudes v. Gottschalk, 324 S.W.2d 201, 205 (Tex. 1959).

Furthermore, “[t]o prevail on a claim of negligence per se, a party must also establish that the violative conduct was the proximate cause of that party’s injuries.” Cruise v. Monington, 558 F.Supp.2d 707, 710 (E.D. Tex. 2007) (citing Ambrosio v. Carter’s Shooting Ctr., Inc., 20 S.W.3d 262, 265 (Tex. App. 2000, pet. denied)).

B

Pun identifies several statutory provisions that could be the basis for his negligence per se claim: (1) engaging in an unsafe lane change, in violation of Tex. Transp. Code Ann. § 545.060 (Vernon 2023); (2) failing to properly stop at the scene of a collision, in violation of Tex. Transp. Code Ann. §§ 550.021 and 550.022; and (3) failing to exchange information at the scene of a collision, in violation of Tex. Transp. Code Ann. § 550.023. The court will consider whether Pun has stated a negligence per se claim with respect to each of these statutory provisions in turn.

1

*4 Section 545.060 requires drivers to “drive as nearly as practical entirely within a single lane.” Tex. Transp. Code Ann. § 545.060(a)(1). It also provides that drivers “may not move from the lane unless that movement can be made safely.” Id. § 545.060(a)(2). But this section “simply ‘incorporate[s] the common law’s ordinary standard of care,’ ” and thus “ ‘does not support a negligence per se cause of action.’ ” Ordonez v. Ausby, 2023 WL 310442, at *9 (W.D. Tex. Jan. 18, 2023) (alteration in original) (first quoting Trinh v. Hunter, 2022 WL 6813293, at *6 (W.D. Tex. Oct. 11, 2022); then quoting Hoffman v. Wright, 2014 WL 709557, at *3 n.3 (Tex. App. 2014, no pet.)); see also, e.g., Gore v. Gore, 233 S.W.3d 911, 913 (Tex. App. 2007, pet. denied) (explaining that § 545.060 “incorporate[s] the ordinary negligence standard”); Claybrook v. Time Definite Servs. Transp., LLC, 2016 WL 3963025, at *3 (N.D. Tex. July 16, 2016) (McBride, J.) (similar).

Because § 545.060 cannot support a claim of negligence per se, Pun is not entitled to relief on this claim. Instead, Jones is entitled to dismissal of Pun’s negligence per se claim under Rule 12(b)(6) insofar as it is based on § 545.060.

2

Sections 550.021 through 550.023 require drivers involved in a collision to (1) stop and render aid if a person is injured or likely to be injured as a result of the collision; (2) stop if damage to a vehicle resulted from the collision; and (3) provide their names, addresses, vehicle registration and insurance information, and driver license information to others involved in the collision. See Tex. Transp. Code Ann. §§ 550.021-550.023.

Pun alleges numerous injuries caused by his collision with Jones: “extensive, disabling damage” to his vehicle, as well as “bodily injuries,” “physical pain and suffering,” “mental anguish,” “physical impairment,” “physical disfigurement,” and “loss of earning capacity.” Am. Compl. ¶¶ 10, 34. But, as Jones points out, Pun does not allege any additional injuries purportedly caused by Jones’s failure to stop, render aid, and provide information to Pun, in compliance with §§ 550.021-550.023. Because Pun has not plausibly pleaded facts as to this element of the negligence per se claim, he is not entitled to relief. Jones is therefore entitled under Rule 12(b)(6) to dismissal of Pun’s negligence per se claim insofar as it is based on §§ 550.021-550.023.

* * *

For the reasons explained, the court grants Jones’s motion to dismiss in part and denies it in part.

SO ORDERED.

All Citations

Slip Copy, 2024 WL 3504553

Footnotes  

1. Jones did not join the notice of removal, as is required under 28 U.S.C. § 1446(a) and Fifth Circuit precedent. See Farias v. Bexar Cnty. Bd. of Trs. for Mental Health Mental Retardation Servs., 925 F.2d 866, 871 (5th Cir. 1991) (citations omitted) (alterations in original) (“[A]ll defendants who are properly joined and served must join in the [notice of removal], and … failure to do so renders the [notice] defective.”). But a defendant’s “failure to join the notice of removal is a procedural rather than subject matter jurisdiction defect.” Carr v. Mesquite Indep. Sch. Dist., 2004 WL 1335827, at *2 (N.D. Tex. June 14, 2004) (Fitzwater, J.). Because Pun did not timely move to remand based on this procedural defect, the defect is waived. See 28 U.S.C. § 1447(c) (“A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a).”).  
2. Pun’s response was due no later than June 28, 2024. See N.D. Tex. Civ. R. 7.1(e) (“A response and brief to an opposed motion must be filed within 21 days from the date the motion is filed.”).  

© 2024 Thomson Reuters. No claim to original U.S. Government Works.  

End of Document

United States District Court, N.D. Georgia, Atlanta Division.

Timothy TODD and Molly Todd, Plaintiffs,

v.

CAPELLA LOGISTICS, INC., et al., Defendants.

CIVIL ACTION FILE NO. 1:22-CV-108-TWT

|

Signed July 17, 2024

Attorneys and Law Firms

Caroline Harwell Monsewicz, Darren Michael Tobin, Tobin Injury Law, Atlanta, GA, for Plaintiffs.

Frederick Mills Valz III, Jessica F. Hubbart, Michael James Yates II, Copeland, Stair, Valz & Lovell, LLP, Atlanta, GA, for Defendants Capella Logistics, Inc., Jacek Marian Bula.

Margaret L. Manns, Lueder, Larkin & Hunter, LLC, Atlanta, Jennifer Pridgeon, Lueder Larkin & Hunter LLC, Atlanta, GA, for Defendant Progressive Commercial Advantage Agency, Inc.

OPINION AND ORDER

THOMAS W. THRASH, JR., United States District Judge

*1 This is a personal injury action. It is before the Court on the Defendants Capella Logistics, Inc. (“Capella”) and Jacek Marian Bula’s Motion for Partial Summary Judgment [Doc. 140]. For the reasons set forth below, the Defendants’ Motion [Doc. 140] is GRANTED in part and DENIED in part.

I. Background¹

This case arises from an automobile accident between the parties that occurred on February 13, 2021. (Def.’s Statement of Undisputed Material Facts ¶ 1). The Defendant Jacek Bula was driving a tractor-trailer on behalf of the Defendant Capella when he rear-ended a tractor driven by former Defendant Rodney Chappelle that then spun across the interstate, collided with the Plaintiffs’ vehicle, and ultimately caused injuries to the Plaintiffs Timothy and Molly Todd. (Id. ¶ 2). The Plaintiffs filed the present action on January 10, 2022, and the Defendants Capella and Bula now move for summary judgment as to the Plaintiffs’ claims for negligent hiring, entrustment, training, and supervision against Capella, and claims for punitive damages and attorneys’ fees against both Defendants.

II. Legal Standard

Summary judgment is appropriate only when the pleadings, depositions, and affidavits submitted by the parties show that no genuine issue of material fact exists, and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a), (c). The court should view the evidence and draw any inferences in the light most favorable to the nonmovant. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158–59 (1970). The party seeking summary judgment must first identify grounds that show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). The burden then shifts to the nonmovant, who must go beyond the pleadings and present affirmative evidence to show that a genuine issue of material fact exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).

III. Discussion

The Defendants move for summary judgment as to the Plaintiffs’ claims for negligent hiring, entrustment, training, and supervision against Capella and for punitive damages and attorneys’ fees against both Defendants. (Br. in Supp. of Defs.’ Mot. for Part. Summ. J., at 2). The Plaintiffs dispute summary judgment as to all claims except the one for negligent entrustment. (Pls.’ Resp. Br. in Opp’n to Defs.’ Mot. for Part. Summ. J., at 2–3). The Court addresses the disputed claims and the parties’ arguments in support thereof in turn.

A. Negligent Hiring, Training, and Supervision

The Defendants contend that they are entitled to summary judgment on the Plaintiffs’ negligent hiring, training, and supervision claims because there is no evidence that Bula had ever been in any prior collisions similar to the one at issue and no evidence that Bula drove in a manner that would have put Capella on notice of any dangerous driving habits. (Br. in Supp. of Defs.’ Mot. for Part. Summ. J., at 7–8). In response, the Plaintiffs contend that Capella failed to exercise ordinary care in hiring Bula because he had numerous violations on his record (four violations over three years) and because Capella’s owner and president, Mrs. Renata Fiedor, failed to drive with Bula for his driving test. (Pls.’ Resp. Br. in Opp’n to Defs.’ Mot. for Part. Summ. J., at 6, 12). Regarding negligent training, they claim that Fiedor lacked knowledge of the regulations governing motor carrier safety and that Capella failed to exercise ordinary care in training Bula because Fiedor merely checked his driving record and reviewed his medical card before hiring him. (Id. at 10–11). And regarding negligent supervision, the Plaintiffs rely on the same evidence in support of their claim. (Id. at 13).

*2 In reply, Capella notes that Fiedor’s late husband trained Bula when he was hired and that Bula had twenty-six years of driving experience, graduated from a driving school, maintained a Commercial Driver License, and had never been in an accident. (Reply Br. in Supp. of Defs.’ Mot. for Part. Summ. J., at 4). Capella also notes that Bula’s driving record was clean and that the four violations he received were “unrelated to the subject accident (driving beyond 8 hours, brake hose issues, and record of duty status issues).” (Id. at 4–5). Finally, Capella argues that there is no evidence it should have known that Bula tended to engage in any behavior relevant to the alleged injuries sustained by the Plaintiffs. (Id. at 5).

Under Georgia law, liability for negligent hiring “requires evidence that the employer knew or should have known of the employee’s propensity to engage in the type of conduct that caused the plaintiff’s injury.” Middlebrooks v. Hillcrest Foods, Inc., 256 F.3d 1241, 1247 (11th Cir. 2001) (citation omitted). And “[t]o establish a negligent training claim, a plaintiff must demonstrate that inadequate training caused a reasonably foreseeable injury.” Advanced Disposal Servs. Atlanta, LLC v. Marczak, 359 Ga. App. 316, 319 (2021) (citation omitted). Finally, “to defeat summary judgment on an issue of negligent supervision, a plaintiff must produce some evidence of incidents similar to the behavior that was the cause of the injury at issue.” ABM Aviation v. Prince, 366 Ga. App. 592, 598 (2023). (citation omitted).

The Court concludes that the Plaintiffs have failed to present affirmative evidence showing a genuine issue of material fact on any of their negligent hiring, training, or supervision claims. Rather, the evidence suggests that Bula had no driving history indicating a propensity to drive negligently. (See Driving Record, Doc. 141-2). Instead, Bula’s record shows that prior to his employment with Capella, he had a 2016 citation for driving beyond an eight-hour time limit, a 2016 citation for lacking a current record of duty status, and a 2017 citation for faulty brake hose and tubing. None of these citations suggest that Capella knew or should have known that Bula had a propensity to engage in negligent driving. Nor does Fiedor’s alleged lack of knowledge of the motor carrier safety regulations indicate that Bula was improperly trained, much less that such training or lack thereof could have caused the Plaintiffs’ injuries. Moreover, when a driver has a CDL like Bula did, “[t]he Federal Motor Carrier Safety Regulations generally do not require trucking companies to train their drivers.” Ortiz v. Wiwi, 2012 WL 4468771, at *4 (M.D. Ga. Sept. 26, 2012). Finally, the Plaintiffs offer no evidence that would support their negligent supervision claim, nor does Bula’s driving record substantiate any instances of negligent driving similar to that alleged in the Third Amended Complaint. Therefore, summary judgment in favor of Capella is proper on the negligent hiring, training, supervision, and entrustment claims.

B. Punitive Damages

The Defendants next contend that they have not engaged in any willful misconduct that would support the Plaintiffs’ punitive damages claim and thus seek summary judgment on the claim. (Br. in Supp. of Defs.’ Mot. for Part. Summ. J., at 10). The Plaintiffs sole argument in support of their punitive damages claim is that Capella’s alleged breach of independent duties goes beyond gross negligence. (Pls.’ Resp. Br. in Opp’n to Defs.’ Mot. for Part. Summ. J., at 14). Having found that Capella was entitled to summary judgment on the Plaintiffs’ negligent hiring, training, supervision, and entrustment claims, the Court concludes that the Plaintiffs have not carried their burden to present affirmative evidence showing any willful or wanton misconduct on the Defendants’ part that would support a claim for punitive damages. See Battle v. Thomas, 623 F. Supp. 3d 1312, 1320 (N.D. Ga. 2022). Accordingly, summary judgment in favor of the Defendants is proper as to punitive damages.

C. Attorneys’ Fees

*3 Finally, the Defendants contend that the Plaintiffs’ claim for attorneys’ fees is meritless because the Plaintiffs point to no specific facts other than those alleged generally in the Complaint in support of their claim and because a bona fide controversy exists as to whether a now-terminated codefendant was wholly or partially at fault for the accident. (Br. in Supp. of Defs.’ Mot. for Part. Summ. J., at 11–12). The Plaintiffs argue, in response, that an award of attorneys’ fees is proper because the Defendants have improperly refused to accept liability for the collision. (Pls.’ Resp. Br. in Opp’n to Defs.’ Mot. for Part. Summ. J., at 16–17). “Questions concerning bad faith, stubborn litigiousness, and unnecessary trouble and expense under O.C.G.A. § 13-6-11 are generally questions for the jury to decide.” Forsyth Cnty. v. Martin, 279 Ga. 215, 219 (2005). Because the parties dispute whether a bona fide controversy exists as to liability for the underlying cause of action, the Court finds that summary judgment on the attorneys’ fees claim is improper.

IV. Conclusion

For the foregoing reasons, the Defendants’ Motion for Partial Summary Judgment [Doc. 140] is GRANTED in part and DENIED in part. It is GRANTED as to the Plaintiffs’ claims for negligent hiring, training, supervision, and entrustment and punitive damages, and it is DENIED as to the Plaintiffs’ claim for attorneys’ fees.

SO ORDERED, this 17th day of July, 2024.

All Citations

Slip Copy, 2024 WL 3445006

Footnotes  

1. The operative facts on the Motion for Partial Summary Judgment are taken from the Defendants’ Statement of Undisputed Material Facts. The Court will deem the parties’ factual assertions, where supported by evidentiary citations, admitted unless the respondent makes a proper objection under Local Rule 56.1(B).  

End of Document

© 2024 Thomson Reuters. No claim to original U.S. Government Works.