2021 WL 5298679

United States District Court, E.D. Missouri, Eastern Division.
BETTY GAYDOS, Plaintiff,
v.
GULLY TRANSPORTATION, INC., et al., Defendants.
Case No. 4:21-CV-388-SPM
|
11/15/2021

MEMORANDUM AND ORDER
*1 This matter is before the Court on Defendant Gully Transportation, Inc.’s Motion to Dismiss Counts II, IV, V, VI, VII and VIII of Plaintiff’s Amended Complaint (Doc. 30). The motion has been fully briefed. The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Doc. 22). For the following reasons, the motion will be granted in part and denied in part.

I. FACTUAL BACKGROUND
On January 19, 2021, Gary Gaydos was operating a vehicle on Interstate 270 near West Florissant Road in St. Louis County, Missouri. First Amended Complaint (“FAC”), Doc. 25, ¶ 8. Defendant Stephen Johnson was driving a tractor-trailer owned by his employer, Defendant Gully Transportation, Inc. (“Defendant Gully”). Id. at ¶ 9. Johnson rear-ended Mr. Gaydos’s car, causing “severe, permanent and progressive physical injuries” to Mr. Gaydos. Id. at ¶¶ 15, 18. As a result of these injuries, Mr. Gaydos died on April 17, 2021. Id. at ¶ 18.

Shortly before his death, Mr. Gaydos filed the instant diversity action in this Court against both defendants. See generally Complaint, Doc. 1. After Mr. Gaydos passed away, his wife Betty Gaydos (“Plaintiff”) was substituted as plaintiff and filed the FAC pursuant to Missouri’s wrongful death statute. See generally FAC. In the FAC, Plaintiff alleges a claim of negligence against Defendant Johnson (Count I) and claims of respondeat superior liability, statutory employment/logo/lease liability, negligence, negligent hiring and/or retention, negligent entrustment, negligent training, and negligent supervision against Defendant Gully (Counts II– VIII, respectively). Plaintiff seeks actual damages and aggravated/punitive damages in each count.1 Both defendants have admitted that “Defendant Johnson was acting in the course and scope of his employment with Defendant Gully at all times relevant.” Gully Answer, Doc. 28, ¶ 9; Johnson Answer, Doc. 29, ¶ 9.

In the instant motion, Defendant Gully has moved to dismiss Counts II, IV, V, VI, VII, and VIII under Rule 12(b)(6). Plaintiff agrees that Count II should be dismissed, Doc. 35 at 3 n.1, but otherwise opposes the motion.

II. LEGAL STANDARD
Under Rule 8(d)(3), “[a] party may state as many separate claims…as it has, regardless of consistency.” Fed. R. Civ. P. 8(d)(3). However, for any given claim to survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim satisfies the plausibility standard “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. When ruling on a Rule 12(b)(6) motion to dismiss, the Court must accept as true all of the factual allegations in the complaint, though it need not accept the legal conclusions. Id. Additionally, “[w]here the allegations show on the face of the complaint there is some insuperable bar to relief, dismissal under Rule 12(b)(6) is appropriate.” Benton v. Merrill Lynch & Co., 524 F.3d 866, 870 (8th Cir. 2008) (citing Parnes v. Gateway 2000, Inc., 122 F.3d 539, 546 (8th Cir. 1997)).

III. DISCUSSION
*2 Defendant Gully has moved to dismiss Counts II, IV, V, VI, VII, and VIII under Rule 12(b)(6). First, Defendant argues that all of these claims should be dismissed, because once an employer has admitted respondeat superior liability (as Defendant Gully has here), it is improper to allow a plaintiff to proceed against the employer on any other theory of imputed liability. Second, Defendant Gully argues that Count II should be dismissed because Plaintiff has not alleged sufficient facts to state a claim under any of those doctrines. The Court will address each argument below.

A. COUNT II: STATUTORY EMPLOYMENT/LOGO/LEASE LIABILITY
Defendant argues that Count II should be dismissed because Plaintiff has not alleged facts sufficient to state a claim for logo liability, statutory employment, or lease liability. In her response, Plaintiff offers no counter-argument and seeks leave to dismiss Count II without prejudice because Defendants have admitted that Defendant Johnson was an employee of Defendant Gully at the time of the collision. The Court will grant Defendants’ motion to dismiss Count II and will dismiss the claim without prejudice.

B. COUNTS IV, V, VI, VII, AND VIII
The Court next considers the argument that Counts IV, V, VI, VII, and VIII should be dismissed because Defendant Gully has admitted respondeat superior liability. Defendant Gully relies principally on McHaffie ex rel. McHaffie v. Bunch, 891 S.W.2d 822 (Mo. 1995). In McHaffie, a plaintiff injured in an accident sued the driver of a vehicle and the driver’s employer, alleging a claim of negligence against the driver, a claim of vicarious liability against the employer, and claims of negligent hiring and supervision against the employer. Id. at 824. The jury returned a verdict allocating a percentage of fault to the employer based on vicarious liability for the driver’s negligence and a separate percentage of fault to the employer based on negligent hiring. Id. at 825. The Missouri Supreme Court held that “once the agency relationship was admitted, it was error to permit a separate assessment of fault to defendant [employer] based upon the ‘negligent entrustment’ or ‘negligent hiring’ theories of liability”; it also held that it was error to admit evidence on those theories. Id. at 827. The Missouri Supreme Court reasoned as follows:
If all of the theories for attaching liability to one person for the negligence of another were recognized and all pleaded in one case where the imputation of negligence is admitted, the evidence laboriously submitted to establish other theories serves no real purpose. The energy and time of courts and litigants is unnecessarily expended. In addition, potentially inflammatory evidence comes into the record which is irrelevant to any contested issue in the case. Once vicarious liability for negligence is admitted under respondeat superior, the person to whom negligence is imputed becomes strictly liable to the third party for damages attributable to the conduct of the person from whom negligence is imputed. The liability of the employer is fixed by the amount of liability of the employee. This is true regardless of the “percentage of fault” as between the party whose negligence directly caused the injury and the one whose liability for negligence is derivative.
Id. at 826 (internal citations omitted). The McHaffie court suggested in dicta that there might be some situations in which this general rule might not apply, noting as one example that it is “possible that an employer or an entrustor may be liable for punitive damages which would not be assessed against the employee/entrustee.” Id. However, the court did not decide whether any such exceptions to the general rule existed. Id.

*3 In 2013, the Missouri Court of Appeals held that the general rule set forth in McHaffie does not apply where punitive damages are sought against the employer, stating:
The rationale for the Court’s holding in McHaffie was that, where vicarious liability was admitted and none of the direct liability theories could prevail in the absence of proof of the employee’s negligence, the employer’s liability was necessarily fixed by the negligence of the employee. McHaffie, 891 S.W.2d at 826. Thus, any additional evidence supporting direct liability claims could serve only to waste time and possibly prejudice the defendants. Id.
The same cannot be said, however, when a claim for punitive damages based upon the direct liability theories is raised. If an employer’s hiring, training, supervision, or entrustment practices can be characterized as demonstrating complete indifference or a conscious disregard for the safety of others, then the plaintiff would be required to present additional evidence, above and beyond demonstrating the employee’s negligence, to support a claim for punitive damages. Unlike in the McHaffie scenario, this evidence would have a relevant, non-prejudicial purpose. And because the primary concern in McHaffie was the introduction of extraneous, potentially prejudicial evidence, we believe that the rule announced in McHaffie does not apply where punitive damages are claimed against the employer, thus making the additional evidence both relevant and material.
Wilson v. Image Flooring, LLC, 400 S.W.3d 386, 393 (Mo. Ct. App. 2013).

Federal courts in Missouri consistently followed Wilson and have held that where an employer might be liable for punitive damages under theories of liability other than respondeat superior, a plaintiff may assert alternative theories of liability against the employer even where the employer has admitted respondeat superior liability. See Sanford v. K&B Transp., Inc., No. 1:20 CV 180 ACL, 2021 WL 4552206, at *3 (E.D. Mo. Oct. 5, 2021) (denying a negligent driver’s employer’s motion for judgment on the pleadings on claims of direct negligence, negligent hiring/retention, negligent supervision/retention, and negligent training claims; relying on Wilson and stating, “Because Defendant may be liable for punitive damages, Defendant’s admission of vicarious liability does not necessarily require dismissal [of the counts against the employer] under McHaffie); Monroe v. Freight All Kinds, Inc., et al., No. 18-CV-03238-SRB, 2020 WL 6589000, at *2-*3 (W.D. Mo. Nov. 10, 2020) (rejecting an employer’s argument that it was entitled to summary judgment on claims of negligence and negligent hiring/training/supervision/entrustment because it had admitted vicarious liability for its employee’s negligence; reasoning that the plaintiff sought punitive damages on each claim and that “Missouri courts have…held that there is a punitive damages exception to McHaffie’s general rule”); Kyles v. Celadon Trucking Servs., Inc., No. 6:15–CV–03193–MDH, 2015 WL 6143953, at *4 (W.D. Mo. Oct. 19, 2015) (relying on Wilson and denying a defendant employer’s McHaffie-based motion to dismiss the claims against it; reasoning that the employer “may be liable for punitive damages that would not be assessed against [the employee] and that would require the presentation of evidence above and beyond demonstrating [the employee’s] negligence”).

*4 This Court finds the reasoning of Wilson and the above cases persuasive and will follow those cases. In the Amended Complaint, Plaintiff seeks punitive damages against Defendant Gully Transportation Company. Plaintiff may need to obtain discovery (and eventually present evidence) in support of the claims for punitive damages that goes above and beyond demonstrating Defendant Johnson’s negligence. Thus, as in the above cases, McHaffie does not require dismissal of Counts IV, V, VI, VII, or VIII, and Defendant’s motion to dismiss will be denied with respect to those claims.2

IV. CONCLUSION
For all of the above reasons,

IT HIS HEREBY ORDERED that Defendant Gully Transportation, Inc.’s Motion to Dismiss Counts II, IV, V, VI, VII and VIII of Plaintiff’s Amended Complaint (Doc. 30) is GRANTED IN PART and DENIED IN PART. With respect to Count II, the motion is GRANTED. With respect to Counts IV, V, VI, VII, and VIII, the motion is DENIED.

SHIRLEY PADMORE MENSAH

UNITED STATES MAGISTRATE JUDGE
Dated this 15th day of November, 2021.

All Citations
Slip Copy, 2021 WL 5298679

Footnotes

1
Defendants moved to strike the allegations related to punitive damages and the requests for punitive damages from the Amended Complaint, but the Court denied that motion. (Doc. 43).

2
In its reply brief, Defendant Gully also suggests that Plaintiff has not alleged sufficient facts to support a claim for punitive damages. The Court will not consider this argument, which was raised for the first time in Defendant’s reply brief. See Green v. Missouri, 734 F. Supp. 2d 814, 848 (E.D. Mo. 2010) (“As a general rule, courts will not consider arguments raised for the first time in a reply.” (citing Barham v. Reliance Standard Life Ins. Co., 441 F.3d 581, 584 (8th Cir.2006)); Monroe, 2020 WL 6589000, at *3 (rejecting the defendant employer’s McHaffie-based motion for summary judgment on direct negligence claims; declining to consider the employer’s alternative argument that there was insufficient evidence to support a claim for punitive damages, because that argument was raised for the first time in the defendant’s reply brief).

2021 WL 4987962
NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
Court of Appeal of Louisiana, Fourth Circuit.
Margie HENDRICKS and Myrtis Hendricks Williams
v.
WELLS FARGO INSURANCE, STERICYCLE, INC., Shadrack Long, Ortegas Coleman and Ean Holdings, LLC
NO. 2021-CA-0109
|
October 27, 2021
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH, NO. 2018-01575 C\ W 2018-02116, 2018-07267, 2018-08066, DIVISION “N-8”, Honorable Ethel Simms Julien, Judge
Attorneys and Law Firms
Donald Edward McKay, Jr., McNeil Kemmerly, Katie F. Wollfarth, Robert McKnight, LEAKE & ANDERSSON, LLP, 1100 Poydras, Suite 1700, Metairie, LA 70163, COUNSEL FOR DEFENDANT/APPELLANT
Matthew S. Chester, Matthew C. Juneau, BAKER DONELSON BEARMAN CALDWELL & BERKOWITZ, PC, 201 St. Charles Avenue, Suite 3600, New Orleans, LA 70170, COUNSEL FOR APPELLEE/SEAN ALFORTISH
(Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Rosemary Ledet)
Opinion

Judge Roland L. Belsome

*1 **1 This is an appeal from the trial court’s granting of a motion to quash a pre-trial discovery subpoena directed to a non-party’s cell phone provider. For the reasons that follow, the ruling is affirmed.

Facts
The underlying lawsuit consists of four consolidated personal injury cases filed subsequent to an August 15, 2017 motor vehicle accident between a van and an 18-wheel tractor trailer (hereinafter “2017 accident”). The named defendants that are relevant to this appeal are Shadrack Long, the driver of the tractor trailer, his employer, Stericycle, and its insurer, Greenwich Insurance Company (collectively “the Appellants”) and the driver of the van, Ortegas Coleman. In the course of discovery, the Appellants associated Ortegas Coleman with Cornelius Garrison through phone calls between the men before and after the 2017 accident. Cornelius Garrison had been indicted in federal court for conspiring to fraudulently stage motor vehicle accidents. Further discovery revealed that Cornelius Garrison had been in contact with another cell phone number and Appellants issued a subpoena duces tecum to the cell phone provider, Sprint Spectrum, LP (“Sprint”) **2 requesting two years of records for the specific cell phone number. That subpoena was met with a motion to quash filed on behalf of the owner of the cell phone number, Sean Alfortish.

Additionally, the Appellants filed a motion for leave of court to file supplemental and amending pleadings to assert a reconventional demand against Plaintiffs, a cross-claim against co-defendant Ortegas Coleman, as well as a third-party demand against Cornelius Garrison, alleging that the 2017 accident was fraudulently staged. The pleadings further asserted that the subject accident was part of a wide-ranging conspiracy between the plaintiffs, Ortegas Coleman, and Cornelius Garrison to stage motor vehicle accidents and file personal injury claims against companies operating 18-wheel tractor trailers.

After a hearing, the trial court granted the Appellants’ motion for leave to file the amendment and additional claims. The trial court also granted Sean Alfortish’s motion to quash the subpoena issued to Sprint. This appeal followed.

Discussion
On appeal, the Appellants maintain that the trial court abused its discretion when it granted the motion to quash by placing the burden of proof to show good cause to warrant the discovery on the Appellants or alternatively, by not finding that the Appellants showed good cause to obtain the discovery.1

*2 The subpoena that was issued to Sprint sought cell phone records for the period of July 1, 2017 and January 1, 2019, including but not limited to billing statements, cell sites activations, numbers dialed, and sent and/or received text **3 messages. In response, the motion to quash argued that Sean Alfortish is a non-party to the litigation, is not a witness to the 2017 accident, and has no connection with the facts at issue. Thus, his personal information is irrelevant to this matter and the subpoena should be quashed. Opposing the motion to quash, the Appellants revealed that Sean Alfortish’s cell phone records were sought because his cell phone number appeared numerous times in the cell phone records of Cornelius Garrison. In arguing why that was relevant to this case, the Appellants informed the trial court that Cornelius Garrison had been indicted in a federal court case, United States v. Garrison (“the Indictment”).2 The Indictment alleged that Cornelius Garrison had been involved in staging as many as fifty accidents with 18-wheel tractor trailers with “Co-Conspirator A.” The Appellants further revealed that Cornelius Garrison had been in contact with the driver in this case Ortegas Coleman several times before and after the 2017 accident including several calls the day of that accident. The record supports those facts.

Next, the Appellants suggest that even though Sean Alfortish had no contact with Ortegas Coleman at any time, and no contact with Cornelius Garrison on the date of the 2017 accident, he was “Co-Conspirator A.” That assertion was based on news outlets’ reporting but has not been substantiated. Sean Alfortish has not been named in the Indictment. So, although Appellants were able to connect Ortegas Coleman to Cornelius Garrison, none of the evidence presented establishes a connection between Sean Alfortish and Ortegas Coleman or any plaintiff in this case.

Generally, a party may obtain discovery of any information which is relevant to the subject matter involved in the pending action. There are limitations **4 to this rule, however, when justice requires that a party or other person be protected from annoyance, embarrassment, oppression, or undue burden or expense. Stolzle v. Safety & Systems Assur. Consultants, Inc., 2002-1197, p.2 (La. 5/24/02), 819 So. 2d 287, 289, (citing La. Code Civ. P. Art. 1422. La. Code Civ. P. art. 1426; Laburre v. East Jefferson Gen. Hosp., 555 So. 2d 1381 (La. 1990)). Additionally, a showing of relevancy and good cause for production has been required in Louisiana cases where a party seeks production of records from a non-party. Stolzle, 2002-1197, p.3, 819 So.2d at 289 (citing Ouachita Nat’l Bnk in Monroe v. Palowsky, 554 So.2d 108 (La.App. 2d Cir. 1989)); see St. Bernard Port, Harbor & Terminal Dist. v. Violet Dock Port, Inc., LLC, 2014-0286, p. 5 (La.App. 4 Cir. 8/27/14), 147 So.3d 1266, 1268.

Further, La. C.C.P. Art. 1426 provides in pertinent part:
Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the district where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
(1) That the discovery not be had.
Prior to ordering discovery from a third party, which has invoked its right to be protected, the trial court must be convinced of the relevancy and necessity of such discovery in achieving its intended purpose. Channelside Services., LLC v. Chrysochoos Group, Inc., 2015-0064, p. 19 (La. App. 4 Cir. 5/13/16), 194 So. 3d 751, 762. A trial court’s regulation of pre-trial discovery is afforded broad discretion and will not be reversed by an appellate court in the absence of a clear abuse of discretion. Channelside, 2015-0064, p.8, 194 So.3d at 756 (citing **5 Sercovish v. Sercovich, 2011-1780, p. 5 (La.App. 4 Cir. 6/13/12), 96 So.3d 600, 603).

In Stolzle, supra, the trial court considered requests for production which, although directed to a party, concerned the personal information of non-parties, including credit card receipts, telephone bills, cellular telephone bills, fax changes, travel ledgers, gas receipts, car rental receipts, airline receipts, and lodging receipts. Stolzle, 2002-1197, p. 3, 819 So.2d at 289. Although the trial court denied a motion for protective order, the Louisiana Supreme Court vacated and set aside the trial court order and remanded the matter back to the trial court to grant the protective order. Stolzle, 2002-1197, p. 4, 819 So.2d at 290. The Court noted, “The trial court failed to determine whether Mr. Stolzle has made a showing of good cause, nor did it make a finding he could not discover this information in a less intrusive manner.” Stolzle, 2002-1197, p. 3, 819 So.2d at 289.

*3 In addition, this Court in St. Bernard Port, Harbor & Terminal Dist. v. Violet Dock Port, Inc., L.L.C., extended protection to a non-party with respect to information and documents not necessary to determine the issues in dispute. In that expropriation suit, the plaintiff issued a trial subpoena and subpoena duces tecum non-parties to obtain a property valuation report, documents associated with the report, and testimony regarding the report and documents. St. Bernard Port, 14-0286, p. 2, 147 So.3d at 1267. The trial court granted a motion to compel and denied a motion to quash. This Court reversed, finding that the trial court abused its discretion because St. Bernard Port failed to make a showing of good cause. This Court further stated that St. Bernard Port had not shown that the report was necessary to establish the value of the Violet Dock Port property in the expropriation action. Id.

**6 Stolzle and St. Bernard Port demonstrate that the party seeking discovery from a non-party must show good cause or the subpoena will be quashed. Federal cases specifically addressing motions to quash subpoenas for cell phone records Winter v. Bisso Marine Co., Inc., 13-CV-5191, 2014 WL 3778833, (E.D. La. July 29, 2014) and Scott v. Complete Logistical Services, LLC, No. 19-CV-11672, 2021 WL 2402161 (E.D. La. June 11, 2021), are guidance for this Court on the issue. In Winter, defendant Bisso issued a subpoena duces tecum to Verizon Wireless, plaintiff’s cell phone provider, seeking all records related to plaintiff’s cell phone number, including billing and usage charges, and all logs of incoming and outgoing calls and texts, and data transfers for a specified period of time. Winter, 2014 WL 3778833, at *1. Bisso asserted that the records would reveal information relevant to the plaintiff’s claim that the accident caused him to have ongoing mental and physical problems. Id. The plaintiff moved to quash the subpoena, arguing that it was overly broad, unduly burdensome and sought irrelevant and possibly privileged materials and was not reasonably calculated to lead to the discovery of admissible evidence. The district court granted the motion to quash, finding Bisso’s arguments too tenuous to support a finding that the requested records were relevant. Id.

In Scott, a more recent federal decision, the plaintiff, Joseph Scott filed a seaman complaint after sustaining injuries when a crane fell on his shoulder. Scott, 2021 WL 2402161, at *1. Thereafter, defendants filed a subpoena for the production of two years of Scott’s cell phone records for the purpose of establishing that Scott was exaggerating his injuries. Scott filed a motion to quash the subpoena claiming the subpoena was unreasonable and a fishing expedition that was an invasion of privacy. Id. Relying on Winter, the district court reasoned **7 that the subpoena was not proportional to the needs of the case. Scott, 2021 WL 2402161, at *3. Both cases acknowledged an individual’s reasonable expectation of privacy in the electronic contents of a cell phone.

In Winter and Scott, the defendants sought the cell phone records of a party plaintiff to obtain information to bolster their defense against the plaintiff’s claims. The district court in both cases found that the defendants failed to establish good cause. Here, the Appellants rely on speculation and conjecture in asserting that Sean Alfortish’s cell phone records will support their claims of fraud in this case. The trial court provided the following oral reasons for quashing the subpoena:
Mr. Alfortish is not a party. He’s not an attorney in this case. I believe before you can get his telephone records, you need to get something more. So, for that reason I’m going to grant the motion to quash a subpoena for Mr. Alfortish’s telephone records.

*4 Given the record and applicable law, this Court does not find that the trial court abused its vast discretion in this matter. Accordingly, the ruling of the trial court to quash the subpoena is affirmed.

AFFIRMED

All Citations
— So.3d —-, 2021 WL 4987962, 2021-0109 (La.App. 4 Cir. 10/27/21)

Footnotes

1
Appellants also challenge, for the first time on appeal, Sean Alfortish’s standing in this case claiming he failed to prove ownership of the cell phone number. However, the record indicates that the Appellants’ opposition to the motion to quash declared that Sean Alfortish’s ownership was judicially confessed. See, C.T. Traina, Inc. v. Sunshine Plaza, Inc., 2003-1003, p. 5 (La. 12/3/03), 861 So.2d 156, 159 (“A judicial confession has the effect of waiving evidence as to the subject of the admission”).

2
No. 2:20-CR-00092, 2020 WL 7768180 (E.D. La. 2020).