March 2023

Interboro Packaging Corp. v. New Penn Motor Express, LLC

United States District Court, S.D. New York.

INTERBORO PACKAGING CORP., Plaintiff,

NEW PENN MOTOR EXPRESS, LLC and YRC, Inc., Defendants.

21-CV-10591 (PMH)

Signed February 14, 2023

Attorneys and Law Firms

Joseph J. Haspel, Joseph J. Haspel PLLC, Middletown, NY, Richard Martin Mahon, Catania, Mahon & Rider, PLLC, Newburgh, NY, Michael Rene Frascarelli, Hopewell Junction, NY, for Plaintiff.

Thomas Christopher Martin, William David Bierman, Nowell Amoroso Klein Bierman, P.A., Hackensack, NJ, for Defendants.

OPINION & ORDER

PHILIP M. HALPERN, United States District Judge:

*1 Interboro Packaging Corp. (“Plaintiff”) presses two claims for relief against New Penn Motor Express, LLC and YRC, Inc. (together, “Defendants”), sounding in breach of contract and fraud in the inducement. (Doc. 31, “SAC”). Plaintiff alleges that Defendants unilaterally terminated a “Freight Charges Agreement” after Plaintiff objected to Defendants’ assessment of fees and costs in excess of the rates the parties had contractually agreed upon.

Defendants, in accordance with the briefing schedule set by the Court, moved under Federal Rule of Civil Procedure 12(b)(6) to dismiss, in part, the Second Amended Complaint. (Doc. 41; Doc. 42). Plaintiff opposed (Doc. 45, “Opp. Br.”), and the motion was fully submitted with the filing of Defendants’ reply brief (Doc. 46).

For the reasons set forth below, Defendants’ motion to dismiss is GRANTED in part and DENIED in part.

BACKGROUND

The facts recited herein are drawn from the Second Amended Complaint and taken as true for purposes of this motion. Plaintiff is a New York corporation that sells plastic bags, including can and trash liners, food bags, plastic tablecloths, storage bags, garment bags, plastic film (plain or printed), stretch film, pallet wrap, as well as disposable gloves and aprons. (SAC ¶¶ 1, 7). Plaintiff ships its products to customers located throughout the United States, including State, City and County municipalities, Colleges, Universities, School Districts, government agencies, and businesses. (Id. ¶ 8). Defendants are a “less-than-truckload” freight carrier and with its subsidiary are corporate entities formed under the laws of the State of Delaware. (Id. ¶¶ 2, 3, 10, 11, 13, 15).

Plaintiff retained Defendants as its principal common carriers under a Freight Charges Agreement. (Id. ¶¶ 26, 32, 38). Plaintiff was awarded contracts competitively bid in reliance on the pallet rates, less-than-truckload rates and the individual rates stipulated to among the parties. (Id. ¶¶ 31, 33-36). Defendants then began to assess fees and costs in excess of the parties’ agreement. (Id. ¶ 41). Plaintiff objected to those fees and advised Defendants that it would only pay the rates to which the parties agreed. (Id. ¶¶ 42, 43). Defendants then unilaterally terminated the Freight Charges Agreement. (Id. ¶¶ 44, 48).

On October 7, 2021, Plaintiff brought suit against Defendants in New York State Supreme Court alleging breach of contract, fraud and misrepresentation, conversion and loss of shipments, and declaratory judgment. On December 10, 2021, Defendants removed the case to this Court. (Doc. 1). Following removal, Plaintiff twice amended its complaint. (Doc. 22; SAC). The Second Amended Complaint asserts two claims for relief against Defendants: breach of contract and fraud in the inducement. Defendants now move to dismiss on statute of limitations grounds the breach of contract claim to the extent any breaches accrued more than 180 days prior to the filing of the Plaintiff’s initial complaint. Defendants move to dismiss the fraud claim in its entirety on the grounds that it is preempted by federal law.

STANDARD OF REVIEW

*2 A Rule 12(b)(6) motion enables a court to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss, 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 is plausible on its face “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. (citing Twombly, 550 U.S. at 556). “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. (quoting Twombly, 550 U.S. at 556). The factual allegations pled “must be enough to raise a right to relief above the speculative level….” Twombly, 550 U.S. at 555.

“When there are well-ple[d] factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679. Thus, the Court must “take all well-ple[d] factual allegations as true, and all reasonable inferences are drawn and viewed in a light most favorable to the plaintiff[ ].” Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996). The presumption of truth, however, “ ‘is inapplicable to legal conclusions,’ and ‘[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.’ ” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting Iqbal, 556 U.S. at 678 (alteration in original)). Therefore, a plaintiff must provide “more than labels and conclusions” to show entitlement to relief. Twombly, 550 U.S. at 555.

ANALYSIS

The basis for both branches of Defendants’ motion is the application of the Interstate Commerce Commission Termination Act, 49 U.S.C. § 10101 et seq. (the “ICCTA”), to the claims alleged in the Second Amended Complaint. Defendants argue that a limitations provision in the ICCTA applies to the breach of contract claim to bar claims for overcharges for transportation that occurred more than 180 days prior to the filing of the Plaintiff’s initial complaint. They further argue that the ICCTA preempts Plaintiff’s fraud in the inducement claim for relief. The Court considers each claim in turn.

I. Breach of Contract Claim

The ICCTA provides, in relevant part, that if a shipping customer wishes to contest charges originally or subsequently billed by a motor carrier, it “must contest the original bill or subsequent bill within 180 days of receipt of the bill in order to have the right to contest such charges.” 49 U.S.C. § 13710(a)(3)(B). Plaintiff argues that the ICCTA limitations provision relied upon by Defendants, § 13710(a)(3)(B), does not apply to its breach of contract claim because this action does not seek to recover freight overcharges. Plaintiff contends the breach at issue is Defendants’ termination of the Freight Charges Agreement and refusal to ship Plaintiffs’ goods, which caused delays in Plaintiff’s shipments and forced Plaintiff to ship with other carriers at higher rates. Plaintiff maintains that because it does not seek to recover the difference between Defendants’ published tariff rates and the rates it charged Plaintiff for shipments, the claim is not governed by the ICCTA.

Neither party has provided any persuasive—let alone binding—precedent squarely on point.¹ While it does appear, as explained infra, that the ICCTA applies to this action, it is not clear to the Court that the 180-day limitations provision of § 13710(a)(3)(B) applies to a breach of contract claim that does not seek to recover overcharges. Without the benefit of the Freight Charges Agreement, or any discovery concerning the parties’ agreement, or any condition precedent to suit, etc., the Court will not limit Plaintiff’s breach of contract claim at this juncture. Accordingly, this branch of Defendant’s motion is denied. Once discovery is completed, Defendants may, if appropriate, raise the issue at the summary judgment stage.

II. Fraud in the Inducement Claim

*3 Defendants also argue that Plaintiff’s second claim for relief, fraud in the inducement, must be dismissed as preempted by the ICCTA. The preemption provision applies to “motor carriers of property,” as well as “motor private carrier[s], broker[s], or freight forwarder[s] with respect to the transportation of property.” 49 U.S.C. § 14501(c)(1). The section provides, in pertinent part, that a State may not “enact or enforce a law … related to a price, route, or service” of any such carrier. 49 U.S.C. § 14501(c)(1).

Plaintiff specifically alleges that Defendants are “carriers” “as that term is defined in 49 U.S.C. § 13102(3).” (SAC ¶¶ 10, 13). That section defines “carrier” as “a motor carrier, a water carrier, and a freight forwarder.” 49 U.S.C. § 13102(3). Plaintiff has further described Defendants as a “regional, less-than-truckload (“LTL”) freight carrier” which “consolidates freight from multiple shippers into a single truckload” and, as a “leading transporter of industrial, commercial and retail goods,” which “carries out its business, as described above, by shipping its products to its customers via common carriers and LTL trucking companies.” (SAC ¶¶ 11, 14-16). The factual predicate of Plaintiff’s fraud in the inducement claim concerns the rates that Defendants were charging. Indeed, Plaintiff alleges in the first substantive paragraph of this second claim for relief that “the representations of [Defendants], through [Defendants’] Agents, that [Plaintiff] would be charged the fixed tariff amounts without any add-ons, except the $15.00 ‘Liftgate’ fee when requested by [Plaintiff] were knowingly false when made, as the representations that [Defendants] would honor the pricing promises were uttered at a time when there was no intention to honor the pricing promises made.” (SAC ¶ 59). There can be no doubt that Plaintiff has alleged that Defendants are motor carriers and that its fraud claim concerns issues “related to” Defendants’ “price” or “service.”

As none of the exemptions to the ICCTA preemption provision apply to this action, 49 U.S.C. § 14501(2),(3), the Court’s inquiry is whether Plaintiff’s state law fraud claim amounts to enforcement of state law that is “related to a price, route, or service” of Defendants, the motor carriers. See Frey v. Bekins Van Lines, Inc., 802 F. Supp. 2d 438, 441 (E.D.N.Y. 2011) (“[T]he court here must determine whether [p]laintiffs’ state law claims, which allege, inter alia, fraud, negligence, and the violation of state consumer protection laws, amount to enforcement of state law that is ‘related to a price, route, or service’ of the named motor carriers.”). Courts that have been faced with this question have concluded that the broad preemption provision of § 14501(c)(1) applies to state common law claims such as the fraud claim at issue here. See id. (collecting cases).

Plaintiff, in opposition, argues that Congress did not intend for the ICCTA to completely preempt fraud claims. (Opp. Br. at 7-9). Plaintiff does not, however, address the case law that specifically holds “that non-contractual state law statutory and tort claims fall within the ICCTA’s language of preemption, and are therefore barred.” Frey, 802 F. Supp. 2d at 442; see also Huntington Operating Corp. v. Sybonney Exp., Inc., No. H-08-781, 2010 WL 1930087, at *3 (S.D. Tex. May 11, 2010) (dismissing as preempted claims based on state deceptive trade practices act, negligence, and negligent misrepresentation and holding that, “[i]n short, 49 U.S.C. § 14501 broadly preempts state law claims that would regulate interstate transportation of goods.”); Yellow Transp., Inc. v. DM Transp. Mgmt. Servs., Inc., No. 06-CV-01517, 2006 WL 2871745, at *3 (E.D. Pa. July 14, 2006) (dismissing as preempted by § 14501 claims of misrepresentation, unjust enrichment, quantum meruit, and fraud); Mastercraft Interiors, Ltd. v. ABF Freight Sys., Inc., 284 F. Supp. 2d 284, 288 (D. Md. 2003) (dismissing as preempted by § 14501 claims of misrepresentation, negligent misrepresentation, and unjust enrichment).

*4 Plaintiff’s concern that it will not get its day in court should this Court determine its second claim for relief is preempted is misplaced. Plaintiff expressly pled its fraud claim in the alternative (SAC ¶ 59 (“Alternatively, in the event that the Freight Charges Agreement is not upheld….”)), and the breach of contract claim will proceed to discovery as discussed supra. Accordingly, this branch of Defendants’ motion to dismiss the second claim for relief on preemption grounds is granted and the claim is dismissed.²

CONCLUSION

Based upon the foregoing, Defendants’ motion to dismiss pursuant to Rule 12(b)(6) is GRANTED in part and DENIED in part. The request for oral argument is denied as moot.

Plaintiff’s first claim for relief for breach of contract shall proceed to discovery. Plaintiff’s second claim for relief for fraud in the inducement is dismissed in its entirety.

Defendants are directed to file an Answer to the Second Amended Complaint by March 7, 2023. The Court will thereafter docket a Notice of Initial Conference.

All Citations

Footnotes

Plaintiff cites Learning Links, Inc. v. United Parcel Serv. of Am., Inc., No. 03-CV-07902, 2006 WL 2466252 (S.D.N.Y. Aug. 24, 2006), for its holding that the 18-month statute of limitations under 49 U.S.C. § 14705 does not apply to breach of contract actions that do not seek to recover freight overcharges. While that case presents the most similar fact pattern to the instant matter of the cases collectively cited by the parties, and is a decision of a court within this Circuit, it is distinguishable because it does not consider the specific statutory 180-day limitations provision relied upon by Defendants.
It is worth noting that Plaintiff’s fraud in the inducement claim, if not preempted, would be subject to dismissal on the ground that fraud as to the original terms of a contract cannot co-exist, as a matter of law, with a breach of contract claim raising the identical issue. The fraud in the inducement claim, in this scenario, fails as a matter of law.

End of Document

Erdem v. J.B. Hunt Transport, Inc.

United States District Court, E.D. Tennessee, Northern Division, at Knoxville.

Aybuke ERDEM, Plaintiff,

J.B. HUNT TRANSPORT, INC. and Phillip E. Carothers, Defendants.

No. 3:22-CV-00216-JRG-CRW

Filed January 30, 2023

Attorneys and Law Firms

Morgan G. Adams, Danny R. Ellis, Truck Wreck Justice, PLLC, Chattanooga, TN, Timothy Aaron Roberto, Brown and Roberto, PLLC, Knoxville, TN, for Plaintiff.

Derek Wayne Mullins, K. Stephen Powers, Baker, Donelson, Bearman, Caldwell & Berkowitz, Chattanooga, TN, for Defendant J.B. Hunt Transport, Inc.

MEMORANDUM OPINION AND ORDER

J. RONNIE GREER, UNITED STATES DISTRICT COURT JUDGE

*1 This matter is before the Court on Defendants’ Motion for Partial Dismissal, or in the Alternative, Motion To Strike [Doc. 9] and Brief in Support [Doc. 10]; Plaintiff’s Response in Opposition [Doc. 12]; and Defendants’ Reply [Doc. 15]. For the reasons stated below Defendants’ motion is GRANTED.

I. BACKGROUND

On the morning of July 10, 2021, Defendant Phillip E. Carothers, an employee of Defendant J.B. Hunt Transport, Inc., was driving a tractor-trailer owned by J.B. Hunt eastbound on Interstate 40 in Knox County, Tennessee. [Compl., Doc. 1 ¶¶ 14, 25.] At some point, Mr. Carothers left his lane of travel and his tractor-trailer collided with Plaintiff’s car. [Id. ¶¶ 29–31.] As a result of the collision, Plaintiff sustained injuries and her vehicle was totaled. [Id. ¶¶ 43–44.]

II. PROCEDURAL POSTURE

On June 17, 2022, Plaintiff brought this five-count action against Defendants for: (I) direct-negligence against J.B. Hunt; (II) direct-negligence against Mr. Carothers; (III) negligence per se against Mr. Carothers; (IV) respondeat superior against J.B. Hunt; and (V) economic, non-economic, and punitive damages against J.B. Hunt and Mr. Carothers. [Id. ¶¶ 45–84.] Defendants have moved to dismiss Count I entirely, portions of Count II, portions of Count III, and Plaintiff’s claim for punitive damages or, in the alternative, to strike various portions of Plaintiff’s Complaint. [Defs.’ Mot. Dismiss, Doc. 9 at 1–2.] Plaintiff has responded in opposition to Defendants’ motion as to Counts I, II, and III, but has agreed to withdraw her claim for punitive damages. [Pl.’s Resp., Doc. 12 at 1–8.] Accordingly, Plaintiff’s claim for punitive damages is DISMISSED. The court will address Counts I, II, and III in turn below.

III. LEGAL STANDARD

Rule 8 of the Federal Rules of Civil Procedure provides that a plaintiff’s 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). Though the statement need not contain detailed factual allegations, it must contain “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) (citation omitted).

A defendant may obtain dismissal of a claim that fails to satisfy Rule 8 by filing a motion pursuant to Rule 12(b)(6). On a Rule 12(b)(6) motion, the Court considers not whether the plaintiff will ultimately prevail, but whether the facts “permit the [C]ourt to infer more than the mere possibility of misconduct[.]” Id. at 679 (citation omitted). For the purposes of this determination, the Court construes the complaint in the light most favorable to the plaintiff and assumes the veracity of all well-pleaded factual allegations in the complaint. Thurman v. Pfizer, Inc., 484 F.3d 855, 859 (6th Cir. 2007). This assumption of veracity, however, does not extend to “bare assertions” of legal conclusions, Iqbal, 556 U.S. at 681, nor is the Court “bound to accept as true a legal conclusion couched as a factual allegation,” Papasan v. Allain, 478 U.S. 265, 286 (1986) (citations omitted).

*2 After sorting the factual allegations from the legal conclusions, the Court next considers whether the factual allegations, if true, would support a claim entitling the plaintiff to relief. Thurman, 484 F.3d at 859. This factual matter must “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Plausibility “is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556). “[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 has not ‘show[n]’—‘that the pleader is entitled to relief.’ ” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).

IV. ANALYSIS

A. Count I – Plaintiff Has Not Pleaded Facts Sufficient to Establish a Direct-Negligence Claim Against J.B. Hunt.

J.B. Hunt has moved to dismiss Plaintiff’s direct-negligence claim on grounds that it “fall[s] well short of” the standards established by Federal Rule of Civil Procedure 8.¹ [Defs.’ Br. Supp. Mot. Dismiss, Doc. 10 at 7.] Specifically, it contends that Plaintiff has offered no factual support for her allegations that J.B. Hunt, inter alia, negligently hired, trained, supervised, and retained Mr. Carothers; did not maintain and inspect the tractor-trailer involved in the accident; and did not comply with Federal Motor Carrier Safety Regulations (“FMCSR”). [Id. at 7–8.] In response, Plaintiff argues that Mr. Carothers’ negligence “by extension, implicate[s] Defendant J.B. Hunt’s negligence in its hiring, training, entrusting, supervising and retaining Defendant Carothers.” [Pl.’s Resp., Doc. 12 at 5.] Plaintiff further asserts that its direct-negligence claim is supported by snapshots of “publicly-available information from the Federal Motor Carrier Safety Administration (“FMCSA”) website demonstrating that [J.B. Hunt’s] tractor-trailer drivers are repeatedly involved in preventable collisions, and habitually violate the state/local law and the regulations throughout the United States.” [Id. at 6 (emphasis in the original); see also Compl., Doc. 1 ¶¶ 53–54.]

The Court agrees with J.B. Hunt. Plaintiff’s Complaint is devoid of any facts about J.B. Hunt’s hiring, training, supervision, or retention policies and procedures generally; much less its hiring, training, supervision, and retention of Mr. Carothers. Likewise, her Complaint contains no facts related to J.B. Hunt’s maintenance program or its maintenance of the tractor-trailer involved in the accident. Nor are there any facts from which the Court could plausibly conclude that J.B. Hunt failed to inspect or maintain the tractor-trailer (e.g., allegations of an identifiable defect or of a mechanical failure). See Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 406 (6th Cir. 1998) (“A complaint must contain either direct or inferential allegations respecting all the material elements to sustain recovery under some viable legal theory.”) (cleaned up and citations omitted). While it is possible that J.B. Hunt negligently supervised Mr. Carothers or did not maintain its tractor-trailer, the Complaint’s material facts describing an ordinary side-swipe-type car accident do not allow the Court to draw the reasonable inference that such scenarios are plausible. Iqbal, 556 U.S. at 678 (establishing that “plausibility” requires more than “possibility”).

*3 Defendant correctly points out that snapshots of accidents and violations from the FMCSA website involving unknown individuals, under unknown circumstances are irrelevant, and therefore inadmissible, to establish a direct-negligence claim against J.B. Hunt. See Fed. R. Evid. 401, 402. Indeed, the FMCSA’s website explicitly states that “[r]eaders should not draw conclusions about a carrier’s overall safety condition simply based on the data in this system.” See J.B. Hunt Safety Measurement System, FMCSA, https://ai.fmcsa.dot.gov/SMS/Carrier/80806/BASIC/UnsafeDriving.aspx (last visited January 30, 2023). Moreover, even if the FMCSA data was relevant evidence of a motor carrier’s negligence, it would not be useful here because J.B. Hunt has maintained a “Satisfactory” rating (i.e., compliant with FMCSA regulations and authorized to operate on the Nation’s roadways) for over thirty years. Id.

Because Plaintiff has not pleaded facts sufficient to establish a direct-negligence claim against J.B. Hunt, Count I is DISMISSED.

B. Count II – Plaintiff Has Not Pleaded Facts Sufficient to Establish Negligence Claims for Speeding or Failure to Inspect, or Facts Sufficient to Establish a Claim for Recklessness.

Mr. Carothers has moved to dismiss portions of Count II that he asserts are unsupported by any facts; specifically, paragraph 61’s allegation that he “fail[ed] to operate the tractor-trailer at a safe speed”; paragraph 65(l)’s allegation that he “fail[ed] to inspect the tractor-trailer”; and paragraph 65(j)’s allegation that he drove in a “reckless manner[.]” [Defs.’ Br. Supp. Mot. Dismiss, Doc. 10 at 8–9, 14.] In response, Plaintiff argues that her allegations are supported by a “myriad” of facts. [Pl.’s Resp., Doc. 12 at 7–8.] But, the only facts she points to are that “[Mr.] Carothers was driving in lane three (i.e. a passing lane)” and that an accident occurred. [Id.] These facts are insufficient to support her claims.

Plaintiff’s negligent speeding and failure to inspect allegations are conclusory. There are no facts from which the Court could reasonably infer that Mr. Carothers’ speed or the condition of the tractor-trailer were factors in the accident (e.g., factual assertions regarding his speed or perceived speed and/or allegations of an identifiable defect or mechanical failure with the tractor-trailer). See Lewis, 135 F.3d at 406.

Plaintiff’s Complaint also is devoid of any facts supporting a claim for recklessness. Under Tennessee law, “[a] person acts recklessly when the person is aware of, but consciously disregards, a substantial and unjustifiable risk of such a nature that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances.” Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 (Tenn. 1992) (citation omitted). The ordinary side-swipe car accident alleged by Plaintiff simply does not give rise to a claim for recklessness. See Russell v. Gardner, No. 2:11-CV-75, 2012 WL 170887, at *2–3 (E.D. Tenn. Jan. 18, 2012) (dismissing punitive damages claim where Complaint failed to plead facts demonstrating recklessness in case involving “typical rear-end type collision”).

Accordingly, Plaintiff’s claims asserted in paragraphs 61, 65(l), and 65(j) are DISMISSED.

C. Count III – Plaintiff Has Not Pleaded Facts Sufficient to Establish Negligence Per Se for FMCSR Violations or Facts Sufficient to Establish a Claim for Gross Negligence.

Mr. Carothers has moved to dismiss portions of Count III which he argues are unsupported; specifically, paragraph 74’s negligence per se allegation based on violations FMCSR Parts 383, 390, 391, 392, 393, 395, and 396, and paragraph 75’s gross negligence allegation. [Defs.’ Br. Supp. Mot. Dismiss, Doc. 10 at 9, 14.] As with Count II, Plaintiff argues that her allegations are supported by a “myriad” of facts, but only can point to the occurrence of the accident. [Pl.’s Resp., Doc. 12 at 7–8.] Further, as to her negligence per se allegation, she argues that under Iqbal “legal conclusions can provide the framework of a complaint [when] … supported by factual allegations.” [Id. at 7 (quoting Iqbal, 556 U.S. at 679).]

*4 Though Plaintiff correctly quotes Iqbal’s text, her reliance on it is misplaced. Under Tennessee law, negligence per se is “a form of ordinary negligence that enables the courts to use a penal statute to define a reasonably prudent person’s standard of care.” Ryans, 2015 WL 12942221, at *3 (quoting Rains v. Bend of the River, 124 S.W.3d 580, 589 (Tenn. Ct. App. 2003)). In other words, a statute can create a duty. Therefore, even though Plaintiff may rely on the FMCSRs to establish the duty element of her negligence per se claim, she must still plead facts sufficient to establish breach, causation, and damages. Partee v. City of Memphis, 449 F.App’x 444, 448 (6th Cir. 2011) (a plaintiff’s “complaint must plead each element of a negligence claim: duty, breach, causation in fact, proximate causation, and harm.”) (quoting Morrison v. Allen, 338 S.W.3d 417, 437 (Tenn. 2011)).

Plaintiff has not done that here. The regulations at issue are generally related to driver licensing and qualifications, maximum drive time limits, and vehicle maintenance and inspections. Despite being information that would be readily attainable through a police report or other means, Plaintiff’s Complaint is devoid of factual allegations from which the Court could infer that, at the time of the accident, Mr. Carothers was unlicensed, not qualified to drive the tractor-trailer, or had exceeded the allowable driving time—i.e., facts from which the court could plausibly conclude that he breached the duties created by the FMCSRs. See Espinal v. Wright, No. 3:09–CV–861, 2012 WL 864783, at *2–3 (E.D. Ky. Mar. 13, 2012) (granting defendant’s partial motion for summary judgment where plaintiff brought negligence per se claim alleging violations of FMCSRs against trucker with Tennessee commercial driver’s license). Likewise, as to the maintenance and inspection FMCSRs, Plaintiff has not pleaded any facts from which the Court could plausibly conclude that something about the condition of the tractor-trailer contributed to the accident at issue.

Plaintiff’s Complaint also is devoid of any facts supporting a claim for gross negligence. “Under Tennessee law, gross negligence is ‘a conscious neglect of duty or a callous indifference to the consequences.” Waterhouse v. Tenn. Valley Auth., 475 F.Supp.3d 817, 825 (E.D. Tenn. 2020) (emphasis in original) (quoting Cook ex rel. Uithoven v. Spinnaker’s of Rivergate, Inc., 878 S.W.2d 932, 938). The ordinary side-swipe car accident alleged by Plaintiff is insufficient to support a claim for gross negligence because none of the material facts indicate that Mr. Carothers acted with “a callous indifference to the consequences” of his actions. Id.

Accordingly, paragraph 74’s negligence per se claim and paragraph 75’s gross negligence allegations are DISMISSED.

V. CONCLUSION

The Court would typically afford Plaintiff the opportunity to amend her Complaint. But, she has not submitted a proposed amended complaint and nothing in her Complaint or briefing suggests that she possesses facts that would allow her to cure the pleading deficiencies. See Roskam Baking Co., Inc. v. Lanham Mach. Co., Inc., 288 F.3d 895, 906 (6th Cir. 2002) (“[I]mplicit in [Rule 15(a)(2)’s directive that courts should freely give amendments when justice so requires] is that the district court must be able to determine whether “justice so requires,” and in order to do this, the court must have before it the substance of the proposed amendment.” (citing Kostyu v. Ford Motor Co., 798 F.2d 1414 (Table), at *2 (6th Cir. July 28, 1986) (concluding that district court did not abuse its discretion in not permitting the plaintiff to amend his complaint, because “[t]he plaintiff did not submit a proposed amended complaint and failed to disclose what amendments he intended to make.”))). In fact, she states in her opposition brief that “most facts that will become relevant and material to this action are presently unknown and contained in Defendant J.B. Hunt’s corporate records.” [Pl.’s Resp., Doc. 12 at 3.] It is well established, however, that plaintiffs must plead facts sufficient to support their claims in the first place, and they cannot use conclusory allegations as placeholders for facts that they hope to discover later. New Albany Tractor, Inc. v. Louisville Tractor, Inc., 650 F.3d 1046, 1050–51 (6th Cir. 2011) (“[C]ourts may no longer accept conclusory allegations that do not include specific facts necessary to establish the cause of action” and “plaintiff[s] may not use the discovery process to obtain [specific] facts after filing suit.”). Moreover, considering Plaintiff’s counsels’ “copy and paste” approach to pleading—at least as it pertains to trucking companies’ direct negligence and FMCSR negligence per se—the Court finds that a permissive amendment is unwarranted in this action. [See Attachs. 2–5 Defs.’ Reply Br., Docs. 15-2–5.]

*5 Accordingly, for the reasons stated above, Plaintiff’s claim for punitive damages; Count I; the claims asserted in paragraphs 61, 65(l), and 65(j) of Count II; and the claims asserted in paragraphs 74 and 75 (as to gross negligence) of Count III are DISMISSED.

So ordered.

All Citations

Footnotes

J.B. Hunt also argues that Plaintiff’s direct-negligence claim is barred by the “preemption rule” which prevents “a plaintiff from pursuing direct negligence claims against an employer where the employer has admitted vicarious liability under respondeat superior.” Swift v. Old Dominion Freight Lines, Inc., 583 F.Supp.3d 1125, 1134 (W.D. Tenn. 2022) (citing Ryans v. Koch Foods, LLC, No. 1:13-cv-234-SKL, 2015 WL 12942221, at *8 (E.D. Tenn. July 8, 2015); Freeman v. Paddack Heavy Transp., Inc., No. 3:20-cv-00505, 2020 WL 7399026, at *1 (M.D. Tenn. Dec. 16, 2020)). But, because J.B. Hunt raised the preemption rule for the first time in its Reply, the Court will not consider that argument. [Defs.’ Reply, Doc. 15 at 6–7 n.3; see also E.D. Tenn. L.R. 7.1(c) (establishing that reply briefs are for the limited purpose of “directly reply[ing] to the points and authorities contained in the answering brief”); Malin v. JPMorgan, 860 F.Supp.2d 574, 577 (E.D. Tenn. 2012) (“It is well-settled that a movant cannot raise new issues for the first time in a reply brief because consideration of such issues ‘deprives the non-moving party of its opportunity to address the new arguments.’ ” (citations omitted)).]

End of Document