United States District Court,

D. Connecticut.

Anthony J. LIQUORE, Jr. Administrator for the Estate of Anthony A. Liquore, Plaintiff,

v.

WHITNEY TRUCKING, INC. and Timothy A. Zabek.

 

No. 3:11–cv–01047–WWE.

May 8, 2013.

 

Carrie M. Coulombe, Frank J. Szilagyi, Szilagyi & Daly, Hartford, CT, for Plaintiff.

 

John C. Gates, Curtiss, Carey, Gates, Graves & Goodridge, LLP, Greenfield, MA, Steven A. Ouellette, Ouellette, Deganis & Gallagher, LLC, Cheshire, CT, for Whitney Trucking, Inc.

 

Andrew B. Ranks, Peter Christopher Bowman, Timothy R. Scannell, Boyle, Shaughnessy & Campo, P.C., Hartford, CT, Zachary F. McBride, Boyle Shaughnessy & Campo, P.C., Boston, MA, for Timothy A. Zabek.

 

MEMORANDUM OF DECISION ON DEFENDANT’S MOTION TO DISMISS

WARREN W. EGINTON, Senior District Judge.

*1 Plaintiff Anthony J. Liquore, Jr. filed this action against defendants Whitney Trucking, Inc. and Timothy A. Zabek after Anthony A. Liquore Sr. died in a two-vehicle collision. Defendant Whitney Trucking has moved to dismiss Count Four of plaintiff’s Amended Complaint, which alleges common law recklessness against Whitney Trucking.

 

Count Four alleges that Whitney Trucking was reckless by retaining its driver, Timothy Zabek, despite the facts that he had a criminal record, had a warrant out for his arrest, lied on his Commercial Driver Fitness Determination examination by denying his history of epilepsy/seizures, and did not meet the physical qualifications for drivers as set forth in 49 C.F.R. § 391.41(8)(epilepsy) and (9)(other medical disorders). Further, plaintiff alleges that Whitney Trucking failed to ensure that Timothy Zabek was able to operate a commercial tractor trailer in accordance with Connecticut law, failed to comply with all alcohol and controlled substances testing pursuant to 49 C.F.R. § 382, and failed to submit Timothy Zabek to random alcohol and controlled substance testing as required by 49 C.F.R. § 382.305 and 382.301.

 

For the following reasons, defendant’s motion to dismiss will be denied.

 

BACKGROUND

For purposes of ruling on this motion to dismiss, the Court accepts the allegations of the complaint as true and draws all inferences in favor of plaintiff.

 

This action arises from a two-vehicle collision which occurred on January 10, 2010, on Interstate 91 in Enfield, Connecticut. Plaintiff’s decedent was injured and died when a commercial tractor trailer unit operated by defendant Timothy Zabek, in the course of his employment with defendant Whitney Trucking, struck the rear end of the vehicle driven by plaintiff’s decedent.

 

At the time of the accident, Zabek was traveling at 74.5 miles per hour, well above the posted limit. He also violated several other Connecticut traffic provisions. Zabek followed decedent’s vehicle too closely and failed to control his tractor trailer, causing it to collide with decedent’s Jeep, running it off the road and killing decedent. It is further alleged that Zabek’s actions were negligent and exhibited a wanton and reckless disregard for the safety of plaintiff’s decedent. Count Four of plaintiff’s Amended Complaint alleges common law recklessness on the part of Whitney Trucking.

 

Whitney Trucking has moved to dismiss Count Four of plaintiff’s Amended Complaint for failure to state a claim upon which relief can be granted.

 

DISCUSSION

The function of a motion to dismiss is “merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.” Ryder Energy Distribution v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir.1984). When deciding a motion to dismiss, the Court must accept all well-pleaded allegations as true and draw all reasonable inferences in favor of the pleader. Hishon v. King, 467 U.S. 69, 73 (1984). The complaint must contain the grounds upon which the claim rests through factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). A plaintiff is obliged to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible. Ashcroft v. Iqbal, 556 U.S. 662, 677–680 (2009).

 

Vicarious Liability

*2 Whitney Trucking argues that Count Four of plaintiff’s Amended Complaint amounts to the mere claim that Whitney Trucking is vicariously liable for the reckless conduct of its employee, co-defendant Timothy Zabek, in his operation of a motor vehicle. Under Connecticut law, “the owner of a motor vehicle is not vicariously liable for punitive damages resulting from the driver’s reckless operation of the vehicle.” Matthiessen v. Vanech, 266 Conn. 822, 837 (2003). Accordingly, Whitney Trucking contends that it cannot be held liable based upon the theory of respondeat superior for the reckless operation of a motor vehicle by its employee.

 

Here, Whitney Trucking virtually ignores the factual allegations concerning its conduct. While Count Four obviously relates to Timothy Zabek’s alleged reckless operation, it focuses on the alleged direct failures of Whitney Trucking. Count Four aims to hold Whitney Trucking liable for its own allegedly dangerous conduct, not on the ground that Timothy Zabek’s conduct occurred during the course of his employment with Whitney Trucking. Accordingly, defendant’s attempt to dismiss Count Four by framing it as a vicarious liability claim fails.

 

Common Law Recklessness

In addition, Whitney Trucking asserts that despite the insertion of additional allegations, Count Four of plaintiff’s Amended Complaint lacks factual allegations sufficient to raise a right to relief above the speculative level. Essentially, Whitney Trucking argues that plaintiff’s allegations do not amount to recklessness.

 

The Supreme Court of Connecticut described common law recklessness in Matthiessen v. Vanech:

 

Recklessness requires a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater … than that which is necessary to make his conduct negligent…. More recently, we have described recklessness as a state of consciousness with reference to the consequences of one’s acts…. It is more than negligence, more than gross negligence…. The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them…. Wanton misconduct is reckless misconduct…. It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action…. While we have attempted to draw definitional distinctions between the terms wilful, wanton or reckless, in practice the three terms have been treated as meaning the same thing. The result is that willful, wanton, or reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.

 

*3 Matthiessen v. Vanech, 266 Conn. 822, 832–33 (2003).

 

Here, whether defendant’s conduct indicated a reckless disregard of the just rights or safety of others or of the consequences of its actions depends on the specific facts of the case, which cannot be established before discovery. The facts as alleged in Count Four make plaintiff’s recklessness claim against Whitney Trucking legally feasible.

 

Plaintiff has alleged that Whitney Trucking employed Timothy Zabek as a truck driver despite his criminal record, outstanding arrest warrant, medical and physical infirmities, inadequate training, and noncompliance with alcohol and controlled substance testing. Whether Whitney Trucking’s employment of Timothy Zabek as a truck driver was reckless depends not only on the truth of plaintiff’s allegations, but also on how conscious of the resulting dangers Whitney Trucking was in choosing its actions. Accepting the allegations of Count Four as true and drawing all inferences in favor of plaintiff, plaintiff’s claim of recklessness against Whitney Trucking is plausible. Accordingly, defendant’s motion to dismiss will be denied.

 

CONCLUSION

For the foregoing reasons, defendant’s motion to dismiss [Doc. # 52] is DENIED.

United States District Court,

N.D. West Virginia.

Christopher LaFOLLETT, Mary Beth LaFollett and A.C.L., a minor who sues by his mother and next friend, Mary Beth LaFollett, Plaintiffs,

v.

Charles GUNDERSON and Stan Koch & Sons Trucking, Inc., Defendants.

 

Civil Action No. 5:13CV44.

May 8, 2013.

 

James G. Bordas, Jr., Bordas & Bordas, PLLC, Wheeling, WV, for Plaintiffs.

 

Timothy R. Smith, Pion, Johnston, Nerone, Girman, Clements & Smith, PC, Pittsburgh, PA, for Defendants.

 

MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS’ MOTION TO REMAND

FREDERICK P. STAMP, JR., District Judge.

I. Background

*1 On March 7, 2013, the plaintiffs, Christopher LaFollett, Mary Beth LaFollett, and their minor child, filed a claim against the defendants, Charles Gunderson (“Gunderson”) and Stan Koch & Sons Trucking, Inc. (“Koch Trucking”), in the Circuit Court of Ohio County West Virginia, as a result of an automobile accident. The plaintiffs are residents of Wheeling, Ohio County, West Virginia. The plaintiffs allege that defendant Gunderson resides in Glenwood, Iowa. The plaintiffs further allege that defendant Koch Trucking, which is organized under the laws of Minnesota, is a corporation with its principal place of business in Golden Valley, Minnesota.

 

In their complaint, the plaintiffs state that on or about October 3, 2012, on Interstate 70 East in Wheeling, West Virginia a truck driven by defendant Gunderson negligently collided with another automobile. The plaintiffs contend that this collision resulted in a chain reaction, which caused another automobile to strike the automobile driven by plaintiff Christopher LaFollett. Plaintiff Mary Beth LaFollett was allegedly a passenger in this vehicle at the time of the accident. At the time of the collision, defendant Gunderson was supposedly acting within the course and scope of his employment with defendant Koch Trucking. Plaintiffs Christopher LaFollett and Mary Beth LaFollett are seeking compensation for their injuries, medical bills, damage to their vehicle, and damages for loss of consortium. The couples’ minor child is seeking damages for loss of parental consortium.

 

After receiving the plaintiffs’ complaint, the defendants removed this action to this Court on the basis of diversity of citizenship, pursuant to 28 U.S.C. § 1332. The defendants contend that this Court has jurisdiction because the amount in controversy exceeds $75,000.00 and the action is between citizens of different states.

 

The plaintiffs then filed a motion to remand. In support of their motion to remand, the plaintiffs state that the defendants have failed to produce any evidence demonstrating that the amount in controversy exceeds $75,000.00. The complaint contains no allegation as to the amount of damages, and the plaintiffs contend that this Court cannot deny remand based on the fact that the complaint contains allegations of permanent injury, and other damages allegations. The defendants did not file a response to the plaintiffs’ motion. FN1 For the reasons set forth below, this Court grants the plaintiffs’ motion to remand.

 

FN1. Despite the defendants failure to respond, this Court will address the plaintiffs’ motion to remand on the merits of the motion. This Court will not merely grant the motion as unopposed, because the plaintiffs’ motion to remand challenges this Court’s subject matter jurisdiction.

 

II. Applicable Law

A defendant may remove a case from state court to federal court in instances where the federal court is able to exercise original jurisdiction over the matter. 28 U.S.C. § 1441. Federal courts have original jurisdiction over primarily two types of cases: (1) those involving federal questions under 28 U.S.C. § 1331, and (2) those involving citizens of different states where the amount in controversy exceeds $75,000.00, exclusive of interests and costs pursuant to 28 U.S.C. § 1332(a).

 

*2 The party seeking removal bears the burden of establishing federal jurisdiction. See Mulcahey v. Columbia Organic Chems. Co., Inc., 29 F.3d 148, 151 (4th Cir.1994). Removal jurisdiction is strictly construed, and if federal jurisdiction is doubtful, the federal court must remand. Id. Although courts strictly construe the statute granting removal jurisdiction, Doe v. Allied Signal, Inc., 985 F.2d 908, 911 (7th Cir.1993), the court is not required “to leave common sense behind” when determining the amount in controversy. Mullens v. Harry’s Mobile Homes, 861 F.Supp. 22, 24 (S.D.W.Va.1994). When the amount in controversy is not apparent on the face of the plaintiff’s complaint, the federal court must attempt to ascertain the amount in controversy by considering the plaintiff’s cause of action as alleged in the complaint and any amendments thereto, the notice of removal filed with a federal court, and other relevant materials in the record. 14C Charles Allen Wright & Arthur R. Miller, Federal Practice and Procedure § 3725 at 73 (3d ed.1998). However, the court is limited to examining only evidence that was available at the moment the petition for removal was filed. Chase v. Shop ‘N Save Warehouse Foods, 110 F.3d 424, 428 (7th Cir.1997).

 

III. Discussion

The plaintiffs contend that the defendants have not satisfied their burden of establishing federal jurisdiction as they have failed to produce any evidence demonstrating that the amount in controversy exceeds $75,000.00. The plaintiffs argue that while their complaint makes allegations of possible permanent injuries, and other damages allegations, this cannot satisfy the defendants’ burden of proof.

 

As stated above, the burden of establishing the amount in controversy exceeds $75,000.00, exclusive of interests and costs, rests with the party seeking removal. Mulcahey, 29 F.3d at 151. This Court has consistently applied the “preponderance of evidence” standard to determine whether a defendant has met its burden of proving the amount in controversy. When no specific amount of damages is set forth in the complaint, the defendant bears the burden of proving that the claim meets the requisite jurisdictional amount. Mullins v. Harry’s Mobile Homes, Inc., 861 F.Supp. 22, 23 (S.D.W.Va.1994). In such circumstances, the court may consider the entire record before it and may conduct its own independent inquiry to determine whether the amount in controversy satisfies the jurisdictional minimum. Id.

 

After carefully reviewing the complaint and the plaintiffs’ memoranda, this Court concludes that the defendants have not satisfied their burden of proof that, at the time of the filing of the complaint, the plaintiffs’ damages may have exceeded $75,000.00. As this Court has noted a number of times, removal cannot be based upon speculation and “bare allegation[s] that the amount in controversy exceeds $75,000.” See Asbury–Casto v. Glaxosmithkline, Inc., 352 F.Supp.2d 729, 731 (N.D.W.Va.2005); and Haynes v. Heightland, 2006 U.S. Dist. LEXIS 19194 *3 (N.D.W.Va.2006). With regard to claims for which the plaintiffs make no specific damages demand, a removing defendant must present actual evidence that the amount in controversy is exceeded; simple conjecture will not suffice. See Bartnikowski v. NVR, Inc., 307 F. App’x 730, 737 (4th Cir.2009) (unpublished) (finding that amount in controversy not shown when defendant “has put forth no evidence of its own to support [the claimed amount in controversy, but] rather, has only presented a conjectural argument”).

 

*3 Here, the defendants failed to include any evidence or make any allegations in their notice of removal concerning the amount in controversy, besides the general bare assertion that the plaintiffs’ claims exceed $75,000.00. Further, the plaintiffs’ complaint does not contain any allegation concerning the amount of damages that the plaintiffs seek, let alone an allegation that those damages exceed $75,000.00. The plaintiffs are correct in that allegations of possible permanent injuries, future damages, attorneys’ fees and the like, cannot satisfy the defendants’ burden of establishing that the amount in controversy has been met. As stated above, the defendants bear the burden of producing actual evidence when such claims do not make a specific damages demand. The defendants have not produced any such evidence. Therefore, this Court cannot find that the defendants have met their burden of proof of establishing that the plaintiffs’ damages exceed $75,000.00.

 

IV. Conclusion

For the aforementioned reasons, the plaintiffs’ motion to remand (ECF No. 6) is hereby GRANTED. Accordingly, it is ORDERED that this case be REMANDED to the Circuit Court of Ohio County, West Virginia. It is further ORDERED that this case be DISMISSED and STRICKEN from the active docket of this Court.

 

IT IS SO ORDERED.

 

The Clerk is DIRECTED to transmit a copy of this memorandum opinion and order to counsel of record herein and to the Clerk of the Circuit Court of Ohio County. Pursuant to Federal Rule of Civil Procedure 58, the Clerk is DIRECTED to enter judgment on this matter.