JOSEPH LARSON, individually and as Personal Representative of the Estate of Eric Larson, Deceased, and on behalf of TERESA LARSON, CALEB LARSON, RACHEL LARSON, BROOKE LARSON, and BEAU LARSON, Plaintiffs, vs. FEDEX GROUND PACKAGE SYSTEM, INC., GNB TRUCKING COMP ANY, EVGENY A MURADOV A, and KEVIN LAMONT MCGHEE, Defendants.

 

CV 16-105-M-DWM

 

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA, MISSOULA DIVISION

 

2016 U.S. Dist. LEXIS 155090

 

 

November 8, 2016, Decided

November 8, 2016, Filed

 

 

COUNSEL:  [*1] For Joseph Larson individually and as Personal Representative of the Estate of Eric Jospeh Larson, Deceased, and on behalf of Teresa Larson, Caleb Larson, Rachel Larson, Brooke Larson, and Beau Larson, Plaintiff: David R. Paoli, LEAD ATTORNEY PAOLI KUTZMAN, P.C., Missoula, MT. Lance P. Jasper, LEAD ATTORNEY, Fred Simpson, REEP BELL LAIRD SIMPSON & JASPER, P.C., Missoula, MT.

 

For FedEx Ground Package System, Inc., GNB Trucking Company, Evgenya Muradova, Kevin Lamont McGhee, Defendants: Mark S. Williams, Nicholas John Pagnotta, LEAD ATTORNEYS, WILLIAMS LAW FIRM, Missoula, MT.

 

JUDGES: Donald W. Molloy, United States District Judge.

 

OPINION BY: Donald W. Molloy

 

OPINION

 

ORDER and OPINION

On December 27, 2013, Eric Larson was traveling home to Missoula, Montana on Interstate 90 after visiting his parents in Coeur D’Alene, Idaho. Just before 10 p.m., a couple driving a tractor-trailer eastbound on 1-90 near Lookout Pass encountered black ice and slid off the road into the median. Shortly after, Eric, driving a Chevrolet truck, left the roadway at the same spot.1 With his truck on the shoulder, Eric activated his emergency lights and exited his vehicle to render aid. Subsequently, Defendant Kevin McGhee, who was driving a tractor-trailer [*2]  hauling double trailers for FedEx Ground, encountered the black ice and slid off the roadway at the same location, entering the median and striking Eric. Eric survived the impact but died from his injuries.

 

1   The parties appear to dispute whether Eric first slid off the road and then parked to render aid or whether he simply parked to render aid in the first instance.

Eric’s family (“the Larsons”) filed suit in state court against the owners/ operators of the truck (FedEx, GnB Trucking Company, and Evgenya Muradova), the driver of the truck (Kevin McGhee), and the State of Montana, raising twelve causes of action related to the accident. (Doc. 1-1.) All the defendants except the State were served with the Complaint in April 2015 and with initial discovery requests by September 2015. The State was served on December 4, 2015. (Doc. 2-16.) The State did not answer until March 8, 2016, and was never served with discovery requests. (See Doc. 1 at ¶¶ 29, 63.) On July 13, 2016, the Larsons and the State executed a settlement agreement, (Doc. 9-1, Ex. D), and on July 14, the State was dismissed with prejudice, (Doc. 7). On August 11, 2016, the remaining defendants (“the Defendants”) removed the [*3]  action. The Larsons now seek to remand this action to state court. (Doc. 8.) That request is granted.

 

LEGAL STANDARD

A defendant may remove a case to federal court only if the case was one that could have been filed in federal court. Merrell Dow Pharm., Inc. v. Thompson, 478 U.S. 804, 808, 106 S. Ct. 3229, 92 L. Ed. 2d 650 (1986) (citing 28 U.S.C. § 1441(b)). Questions of removal jurisdiction are “determined by reference to the ‘well-pleaded complaint.'” Id. “The removal statute is strictly construed against removal jurisdiction,” and “[t]he defendant bears the burden of establishing that removal is proper.” Provincial Gov’t of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 2009). This is a heavy burden as federal courts must “scrupulously confine their own jurisdiction to the precise limits which the statute has defined.” Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 109, 61 S. Ct. 868, 85 L. Ed. 1214 (1941) (internal quotation marks omitted).

 

ANALYSIS

The Defendants’ removal is based on both 28 U.S.C. § 1332(a) diversity of citizenship and § 1331 federal question jurisdiction. Neither statute confers jurisdiction in this context.

 

1. Diversity

It is uncontested that there is now complete diversity and that the amount in controversy exceeds $75,000. 28 U.S.C. § 1332; Notice of Removal, Doc. 1 at ¶¶ 45-53. But, this case turns on whether removal was timely. Pursuant to 28 U.S.C. § 1446(c)(1), a case may not be removed on the basis of diversity of citizenship “more than 1 year after the commencement of the action, unless the [*4]  district court finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action.” While the Ninth Circuit has yet to decide what standard governs this bad faith requirement, see Escalante v. Burlington Nat’l Indem., Ltd., 2014 U.S. Dist. LEXIS 165085, 2014 WL 6670002, at *3 (C.D. Cal. Nov. 24, 2014), it has previously held that the requirement of bad faith, in the context of awarding sanctions, carries with it a high threshold and entails actions tantamount to recklessly raising a frivolous argument or disrupting or hindering court proceedings, Primus Auto. Fin. Servs., Inc. v. Batarse, 115 F.3d 644, 649 (9th Cir. 1997). District courts have focused on “the plaintiffs’ subjective intent’ in naming a non-diverse defendant” and “applied a strict standard[, finding] bad faith when a plaintiff failed to actively litigate a claim against a defendant in any capacity.” Heacock v. Rolling Frito-Lay Sales, LP, 2016 U.S. Dist. LEXIS 98227, 2016 WL 4009849, at **2-3 (W.D. Wash. July 27, 2016) (collecting cases) (emphasis in original). Also relevant to the bad faith inquiry are “the timing of naming the non-diverse defendant, the timing of dismissal, and the explanation given for that dismissal.” 2016 U.S. Dist. LEXIS 98227, [WL] at *3. The plaintiff’s desire to stay in state court must be the but-for cause of its decision to keep a non-diverse defendant in the case past the one-year deadline for removal. Aguayo v. AMCO Ins. Co., 59 F. Supp. 3d 1225, 1273 (D.N.M. 2014).

Here, the Larsons did not join the State in bad faith solely to prevent removal. As noted by the Defendants, [*5]  the State was not served until December 2015, 8 months after the Complaint was filed, (see Doc. 2-16), and only after a service deadline was set by the state court, (see Doc. 1 at ¶ 26). Further, no discovery was served upon the State, (id. at ¶ 63), the State did not answer until three months after service, (id. at ¶ 29), and the State was not dismissed by mutual agreement of the parties until July 2016, 15 months after the Complaint was filed, (Doc. 7). Considered alone, the delay described above could indicate the Larsons failed to actively litigate against the State. However, the Larsons’ dealings with the State were much more involved.

From February 27, 2015, to July 13, 2016, the Larsons were actively engaged in discussions with the State regarding their desired remedy of establishing variable speed limit signs in the 1-90 corridor through Lookout Pass. (See Paoli Aff., Doc. 9-1 at ¶ 10; Jasper Aff., Doc. 9-2 at ¶ 16; Ohler Aff., Doc. 9-3 at ¶ 3.) It was not until May 29, 2016, that the State and the Larsons entered into an agreement regarding the feasibility of the variable speed limits, (Paoli. Aff., Doc. 9-1 at Ex. E), and June 29, 2016, that the final “Feasibility Assessment” [*6]  was completed, (id. at Ex. C; Ohler Aff., Doc. 9-3 at ¶ 5). This was not, as the Defendants argue, a nod and a handshake deal with illusory obligations on the part of the State. (See Ohler Aff., Doc. 9-3 at ¶¶ 5, 10 (indicating that the Montana Department of Transportation “devoted substantial time and resources” to the completion of the Study, including “thousands of dollars and hundreds of hours”).) The Larsons actively pursued their case with the State, consistently seeking the same remedy. Compare Heacock, 2016 U.S. Dist. LEXIS 98227, [WL] at *5, with Heller v. Am. Sts. Ins. Co., 2016 U.S. Dist. LEXIS 39645, 2016 WL 1170891, at *3 (C.D. Cal. Mar. 25, 2016) (finding bad faith where the plaintiff “provided inconsistent explanations as to why [the non-diverse defendant] was not dismissed earlier in the proceedings”). The fact that the Larsons merely sought the completion of a study, as opposed to the implementation of a variable speed limit, does not taint that dismissal; nor does the fact the Larsons sought a nonmonetary remedy. See Heacock, 2016 U.S. Dist. LEXIS 98227, [WL] at *5 (finding no bad faith even when the non-diverse defendant was dismissed for no material benefit to the plaintiff). The Defendants fail to show bad faith that would obviate the one-year removal deadline.

 

1. Federal Question

The Defendants’ removal was also based on the existence of federal question jurisdiction [*7]  under 28 U.S.C. § 1331. In determining whether such jurisdiction exists, courts look to the allegations in the plaintiff’s well-pleaded complaint to determine whether an action “arises under” federal law or the Constitution. Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 9-10, 103 S. Ct. 2841, 77 L. Ed. 2d 420 (1983). If federal law does not create the plaintiff’s claim, the Supreme Court recognizes that in certain cases, federal question jurisdiction will lie over state-law claims that implicate significant federal issues or “turn on substantial questions of federal law.” Grable & Sons Metal Products, Inc. v. Daru Engg. & Mfg., 545 U.S. 308, 312, 125 S. Ct. 2363, 162 L. Ed. 2d 257 (2005). This is a “slim category” of cases, Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 701, 126 S. Ct. 2121, 165 L. Ed. 2d 131 (2006), and “the mere presence of a federal issue in a state cause of action does not automatically confer federal-question jurisdiction,” Merrell Dow Pharm., Inc., 478 U.S. at 813.

While there is not a “single, precise, all-embracing” test for jurisdiction over federal issues embedded in state law claims, the inquiry is whether any of the plaintiff’s claims necessarily depend on the resolution of a substantial question of federal law. Grable, 545 U.S. at 314. A federal issue is “necessary” if the plaintiff’s claim depends on the resolution of that issue. Id. at 314-15. “The crux of the matter is whether the prima facie elements of [the p]laintiff’s claims necessarily raise the federal issue or whether the federal issue is merely raised by the potential for certain [*8]  evidence utilized to prove the elements.” McGrath ex rel. Mont. v. Janssen, LP, 2009 U.S. Dist. LEXIS 132867, 2009 WL 9136812, at *3 (D. Mont. Nov. 30, 2009) (Lovell, J.). This case falls into the latter category.

Here, the purported basis for federal question jurisdiction is the Federal Motor Carrier Safety Act and its affiliated regulations. The sorts of claims brought in this case are not the kind of claims that benefit from a federal forum as would say a federal tax claim. See Grable, 545 U.S. at 315. While the Larsons’ state law claims may raise evidentiary issues requiring interpretation of a federal statute or regulations, the Larsons could establish, without the resolution of an issue of federal law, the essential elements of their state law claims. See Burgess v. J.H.O.C. Premier Transp., Inc., 2012 U.S. Dist. LEXIS 144897, 2012 WL 4762126, at **5-6 (D.S.C. Sept. 24, 2012) report adopted in pertinent part Burgess v. J.H.O.C. Transp., Inc., 2012 U.S. Dist. LEXIS 144437, 2012 WL 4762140 (D.S.C. Oct. 5, 2012) (holding that a plaintiff’s complaint, which cited the Federal Motor Carrier Safety Act, did not confer federal jurisdiction because the plaintiff did not need to establish a violation of the Federal Act or its regulations to establish liability under her state law negligence claims).

The Larsons’ complaint does not reference the Federal Motor Carrier Safety Act. Compare Doc. 1-1 with Tinsley v. Barney, 2014 U.S. Dist. LEXIS 61720, 2014 WL 1778418, at *2 (S.D. Ill. May 5, 2014) (wherein complaint states “[t]his case also involves questions of violations of the Federal Motor Carrier Safety Regulations”). Rather, the Larsons cite [*9]  two Montana motor vehicle statutes in their cause of action for negligence per se (Count II), (Doc. 1-1 at ¶ 22), the violations of which turn solely on state law. See Craig v. Schell, 1999 MT 40, 293 Mont. 323, 975 P.2d 820, 825-26 (Mont. 1999) (holding that “it is only under extremely limited circumstances that the violation of a motor vehicle statute will not constitute negligence as a matter of law”). The Larsons’ complaint alleges three other actions for negligence (Counts I, III, IV), all of which can be determined solely on state law grounds. Id. at 826 (noting that hazards such as black ice “can be avoided when drivers proceed in a careful and prudent manner” and that “if one drives too fast for the conditions . . . such hazards may result in serious accidents); Maguire v. State, 254 Mont. 178, 835 P.2d 755, 758 (Mont. 1992) (“A party may be held [directly] liable for the damages caused by another . . . on the theory of negligent hiring and/or supervision.”). The same is true of the Larsons’ claims for wrongful death, survival, and punitive damages (Counts IX, X, XI). See Mont. Code Ann. §§ 27-1-513, 27-1-501, 27-1-220. The Larsons’ “right to relief [does not] necessarily depend[] on resolution of a substantial question of federal law[,]” and “federal law is [not] a necessary element of one of [the Larsons’] well-pleaded claims.” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 808, 108 S. Ct. 2166, 100 L. Ed. 2d 811 (1988) (internal quotation marks, alterations, [*10]  and citations omitted).2 The Defendants have not shown removal is proper pursuant to § 1331.

 

2   The Defendants do not rely on the Larsons’ final cause of action (Count XII), which seeks a declaration that Montana’s punitive damages cap is unconstitutional, to argue for federal question jurisdiction. Nor does this cause of action necessarily confer such jurisdiction as punitive damages have historically been left to the states. BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 568, 116 S. Ct. 1589, 134 L. Ed. 2d 809 (1996) (“In our federal system, States necessarily have considerable flexibility in determining the level of punitive damages that they will allow in different classes of cases and in any particular case.”). “[F]ederal jurisdiction demands not only a contested federal issue, but a substantial one, indicating a serious federal interest in claiming the advantages thought to be inherent in a federal forum.” Grable, 545 U.S. at 313.

 

III. Attorneys’ Fees

The Larsons seek attorneys’ fees and costs on the present motion. Pursuant to 28 U.S.C. § 1447(c), “[a]n order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.” The award of fees and costs is discretionary and may occur “where the removing party lacked an objectively reasonable basis for seeking removal.” [*11]  Martin v. Franklin Capital Corp., 546 U.S. 132, 141, 126 S. Ct. 704, 163 L. Ed. 2d 547 (2005). Conversely, when an objectively reasonable basis exists, fees should be denied. Id. As discussed above, the Ninth Circuit has not articulated a standard for bad faith under § 1446(c)(1), which was added to the statute in 2011. See H.R. Rep. No. 112-10, at 15 (2011). As a result, both parties rely on district court decisions and the Defendants’ position was not previously determined or “otherwise clearly foreclosed.” Lussier v. Dollar Tree Stores, Inc., 518 F.3d 1062, 1066-67 (9th Cir. 2008). Similarly, both parties turn to district court decisions in their discussion of federal question jurisdiction. In light of the unsettled law, the legal basis for the Defendants’ removal was objectively reasonable. The events leading to removal were also such that one could view the Larsons’ actions vis-a-vis the State in the state court as misleading. (See Defs.’ Resp., Doc. 10 at 12-13 (arguing the Defendants were kept in the dark about the Larsons’ dealings with the State until late July 2016); id. at 13 (stating that the Larsons have yet to produce correspondence and materials exchanged with State from December 30, 2014 to October 23, 2015).) The Larsons’ request for attorneys’ fees and costs is denied.

 

CONCLUSION

Based on the foregoing, IT IS ORDERED that the Larsons’ motion (Doc. 8) [*12]  is GRANTED-IN-PART and DENIED-IN-PART. This matter is REMANDED back to the Montana Fourth Judicial District Court, Mineral County, Montana. The Clerk of Court is directed to deliver the case file back to the state court and close the Federal case. The Larsons’ request for fees and costs is DENIED.

KENNETH CHARGER, Plaintiff, v. STEPHEN REGESTER and J.B. HUNT TRANSPORT, INC., Defendants.

 

No. 2:16-cv-04212-NKL

 

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI, CENTRAL DIVISION

 

2016 U.S. Dist. LEXIS 155414

 

 

November 9, 2016, Decided

November 9, 2016, Filed

 

 

COUNSEL:  [*1] For Kenneth Charger, Plaintiff: David Lawrence Johnson, LEAD ATTORNEY, The Law Offices of Steve Sanders, Kansas City, MO; Jason Thomas Wilson, LEAD ATTORNEY, Law Offices of Steve Sanders LC, Kansas City, MO; Stephen Gilbert Sanders, The Law Offices of Steve Sanders L.C., Kansas City, MO.

 

For Stephen Regester, J.B. Hunt Transport, Inc., Defendants: David A. Gellis, LEAD ATTORNEY, Manz Swanson Hall Fogarty & Gellis PC, Kansas City, MO.

 

JUDGES: NANETTE K. LAUGHREY, United States District Judge.

 

OPINION BY: NANETTE K. LAUGHREY

 

OPINION

 

ORDER

Defendant J.B. Hunt Transport, Inc. moves to dismiss for failure to state a claim Counts IV and VI, as well as Counts III-VI as to punitive damages. [Doc. 7]. Defendant Stephen Regester moves to dismiss Count II, as well as Counts I and II as to punitive damages. [Doc. 26]. For the following reasons, Defendant J.B. Hunt’s motion is granted, and Defendant Stephen Regester’s motion is granted in part and denied in part.

 

1. Background1

 

1   At the motion to dismiss stage, all of Plaintiff’s allegations are accepted as true and construed in the light most favorable to him. Stodghill v. Wellston Sch. Dist., 512 F.3d 472, 476 (8th Cir. 2008).

On July 26, 2011, Defendant Stephen Regester backed his tractor-trailer into Plaintiff Kenneth Charger’s parked tractor-trailer [*2]  while Charger was inside. The impact shook Charger in his vehicle, causing him “to suffer physical injuries to his head, neck, ribs, right shoulder, and back, as well as severe emotional and psychological injuries, including depression, anxiety, and post-traumatic stress disorder.” [Doc. 1, p. 2-3]. At the time of the collision, Defendant J.B. Hunt Transport, Inc. was the registered owner of the tractor-trailer, and Regester was J.B. Hunt’s “employee, agent, servant, and/or independent contractor.” [Doc. 1, p. 6].

Charger alleges that Regester negligently failed to: keep a careful lookout; exercise the highest degree of care while operating his vehicle; ensure that the area behind his vehicle was clear of all obstructions before backing up; yield the right of way; not drive at an excessive speed; stop, swerve, slow his speed, or sound a warning after he knew or could have known that there was a reasonable likelihood of a collision; drive at a speed that made it possible for him to stop within the range of his visibility; and not operate his vehicle in a fatigued or impaired condition. In addition, J.B. Hunt negligently failed “to act reasonably in hiring, training, supervising, and [*3]  retaining . . . Regester and [failed] to promulgate and enforce rules, regulations, and policies to ensure its drivers, including . . . Regester, operated vehicles in a reasonably safe manner.” [Doc. 1, p. 7].

Finally, Charger pleads that at the time of the collision, Regester “likely violated the following federal regulations, and after a reasonable opportunity for further investigation or discovery, [his] actual violation of each of these regulations will likely have evidentiary support”:

 

o to operate his tractor-trailer in accordance with the laws, ordinances, and regulations of the State of Missouri, as well as the regulations of the Federal Motor Carrier Safety Administration, as required by 49 C.F.R. § 392.2;

o not to operate his tractor-trailer while his ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him to begin or continue to operate his tractor-trailer, pursuant to § 392.3;

o to comply with the hours of service requirements specified by § 395; and

o to be qualified to drive a commercial vehicle as defined by § 391.11, and specifically, to have a currently valid commercial vehicle operator’s license issued by only one State [*4]  or jurisdiction pursuant to § 391.11(b)(5). [Doc. 1, p. 4].

 

 

Similarly, Charger pleads that at the time of the collision, J.B. Hunt “likely violated–and encouraged Defendant Stephen Regester to violate–the following federal regulations, and after a reasonable opportunity for further investigation or discovery, Defendant[‘s] . . . actual violation of each of these regulations will likely have evidentiary support”:

 

o to require that each of its employed drivers observe and comply with all applicable regulations promulgated by the Federal Motor Carrier Safety Administration, as required by 49 C.F.R. § 390.11;

o not to aid, abet, or encourage the drivers it employs to violate regulations promulgated by the FMCSA, as required by § 390.13;

o to enforce § 392.3’s requirement that each of the drivers it employs not operate a tractor-trailer while their ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him to begin or continue to operate his tractor-trailer;

o to comply with the hours of service requirements in § 395 for each driver it employs;

o to employ only drivers qualified to drive a commercial vehicle, as defined by § 391.11, and specifically, to have a currently [*5]  valid commercial vehicle operator’s license issued by only one State or jurisdiction pursuant to § 391.11(b)(5);

o to make investigations and inquiries into the drivers it employs, § 391.23;

o to perform an annual inquiry and review of the driving records of the drivers it employs, as required by § 391.25;

o to maintain a complete driver qualification file for each driver it employs, as required by § 391.51; and

o to maintain a complete driver investigation history file for each driver it employs, as required by § 391.53. [Doc. 1, p. 9-10].

 

 

Charger’s Complaint states six counts: (I) Regester’s Negligence, (II) Regester’s Negligence Per Se, (III) J.B. Hunt’s Vicarious Liability, (IV) J.B Hunt’s Strict Liability, (V) J.B. Hunt’s Negligence, and (VI) J.B. Hunt’s Negligence Per Se. Each count includes a request for both actual and punitive damages.

 

1. Discussion

J.B. Hunt contends that Charger has failed to state a claim upon which relief can be granted as to Counts IV and VI, as well as for the punitive damages sought under Counts III, IV, V, and VI. Regester argues that Charger has failed to state a claim for his alleged negligence per se under Count II and for the punitive damages sought under Counts I and II. Therefore, Defendants argue [*6]  that dismissal of these claims is proper under Federal Rule of Civil Procedure 12(b)(6).

At the pleading stage, a plaintiff is not required to present detailed factual allegations. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 663, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009).

 

1. Count IV: Strict Liability Claim

J.B. Hunt argues that Charger’s strict liability claim must be dismissed because he does not plead any plausible basis for imposing strict liability in his Complaint. Charger concedes dismissal to this claim. [Doc. 16, p. 2]. Therefore, Charger’s Count IV strict liability claim is dismissed with prejudice.

 

1. Counts II and VI: Negligence Per Se Claims

Missouri law requires that, “[t]o establish a claim of negligence per se, the plaintiff must plead the following four elements: (1) the defendant violated a statute or regulation; (2) the injured plaintiff was a member of the class of persons intended to be protected by the statute or regulation; (3) the injury complained of was of the kind the statute or regulation was designed to prevent; and (4) the violation of the statute or regulation was the proximate cause of the injury.” Dibrill v. Normandy Assocs., Inc., 383 S.W.3d 77, 84-85 (Mo. Ct. App. 2012). J.B. Hunt and [*7]  Regester contend that Charger failed to state a claim of negligence per se as to either defendant because he did not sufficiently plead either direct or inferential allegations as to all of these elements.

To support his negligence per se claim against J.B. Hunt, Charger alleges that J.B. Hunt “likely violated” nine federal regulations promulgated by the Federal Motor Carrier Safety Administration, which he lists in his Complaint. As to his negligence per se claim against Regester, Charger similarly alleges that Regester “likely violated” four of the Act’s regulations, as well as failed to operate his tractor-trailer in accordance with Missouri law. Because the Court must “accept the allegations contained in the complaint as true and draw all reasonable inferences in favor of the nonmoving party,” the Court construes this Count II negligence per se claim against Regester as two claims: for violation of Missouri state laws and for violation of federal regulations. Cole v. Homier Dist. Co., Inc., 599 F.3d 856, 861 (8th Cir. 2010).

With respect to the negligence per se state law claim against Regester, the Court finds Charger has pled sufficient facts to state a plausible claim. Charger pled that Regester “likely” failed “to operate his tractor-trailer [*8]  in accordance with the laws, ordinances, and regulations of the State of Missouri.” [Doc.1, p.4]. Further, Charger identified specific facts that support negligence per se under Missouri state law, including that Regester failed to keep a careful lookout and yield the right of way, and failed to ensure the area behind his vehicle was clear of all obstructions before backing up. This “factual content . . . allows the Court to draw the reasonable inference that [Regester] is liable” for negligence per se. Cole v. Homier Dist. Co., Inc., 599 F.3d 856, 861 (8th Cir. 2010). Therefore, Regester’s motion to dismiss is denied with respect to Charger’s Count II negligence per se state law claim.

As to the negligence per se federal law claims against Regester and J.B. Hunt, the only related fact alleged by Charger is that “Regester backed a tractor-trailer into a parked tractor-trailer occupied by [Charger], causing a collision.” [Doc. 1, p. 2]. J.B. Hunt and Regester contend that Charger has failed to allege facts demonstrating how he believes either defendant violated any of the listed federal regulations. Therefore, the defendants contend both of these claims are comprised of mere conclusory allegations.

The defendants further argue that Charger’s negligence [*9]  per se claims fail to state two requisite elements: (1) that he was a member of the class of persons intended to be protected by the regulation and (2) that his injuries are of the kind the regulation was designed to prevent. Charger responds that these two elements can be “reasonably inferred” when viewing the complaint as a whole, but the Court cannot infer these elements without any facts upon which to base its inferences. Charger’s single factual allegation coupled with a list of federal regulations that each defendant “likely violated” is insufficient to make either of his negligence per se federal law claims plausible, even under the Federal Rules’ liberal pleading standard.

Charger also argues that his pleadings are sufficient because Federal Rule of Civil Procedure 11(b)(3) permits him to make factual allegations that “will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.” [Doc. 17, p. 1]. This argument, however, overlooks the distinctly different purposes served by Rules 12(b)(6) and 11(b)(3). The purpose of Rule 12(b)(6) is to test the legal sufficiency of the complaint. See e.g., Young v. City of St. Charles, 244 F.3d 623, 627 (8th Cir. 2001) (“[D]ismissal under Rule 12(b)(6) serves to eliminate actions which are fatally flawed in their legal premises and deigned to fail, thereby [*10]  sparing litigants the burden of unnecessary pretrial and trial activity.”) (citing Neitzke v. Williams, 490 U.S. 319, 326-27, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989)). In contrast, Rule 11(b)(3) serves to ensure that pleadings are filed in good faith, to deter frivolous lawsuits, and to impose sanctions where the litigation process has been abused. See e.g., Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 110 S. Ct. 2447, 110 L. Ed. 2d 359 (1990) (“[T]he central purpose of Rule 11 is to deter baseless filings in district court . . . [and it] imposes a duty on attorneys to certify that they have conducted a reasonable inquiry and have determined that any papers filed with the court are well grounded in fact.”).

Charger is correct that Rule 11(b)(3) requires him to plead his factual allegations in good faith, but Rule 12(b)(6) also requires him to plead enough factual allegations that a court may plausibly infer that a claim exists, which Charger has failed to do. Therefore, Charger’s negligence per se federal law claims against J.B. Hunt and Regester are dismissed without prejudice.

 

1. Punitive Damages as to All Counts

Regester contends that Charger’s claims for punitive damages under Counts I and II should be dismissed because he has not pled any facts alleging intentional or reckless conduct, as required by Missouri law. J.B. Hunt makes the same argument as to Charger’s punitives claims under Counts III, [*11]  IV, V, and VI. Because the Court has already dismissed Count II with respect to the negligence per se federal law claim, as well as Counts IV and VI, it need only assess the punitive damages claims under the remaining Counts: I, II with respect to the negligence per se state law claim, III, and V.

Under Missouri law, punitive damages are available in negligence actions “only when the defendant knew or had reason to know that there was a high degree of probability that the action would result in injury.” Hoover’s Dairy, Inc. v. Mid-America Dairymen, Inc., 700 S.W.2d 426, 436 (Mo. banc 1985) (describing an individual’s firing of a rifle into a moving passenger train as an example of a defendant who knew or should have known that there was a high degree of probability that his conduct would result in injury). “The defendant’s conduct must be tantamount to intentional wrongdoing where the natural and probable consequence of the conduct is injury. With such a showing, a plaintiff can recover for aggravating circumstances based upon the defendant’s complete indifference to or conscious disregard for the safety of others.” Lopez v. Three Rivers Electric Coop., Inc., 26 S.W.3d 151, 160 (Mo. banc 2000). Therefore, to obtain punitive damages in a negligence action, the “plaintiff must show conduct more egregious than that on which the claim of negligence [*12]  is based.” Litchfield v. May Dep’t Stores Co., 845 S.W.2d 596, 599 (Mo. App. Ct. 1992).

As previously discussed, Count I alleges that Regester negligently operated his tractor-trailer in a variety of ways, including failing to keep a careful lookout and failing to ensure that the area behind his vehicle was clear of all obstructions before backing up. Count I requests punitive damages by characterizing Regester’s negligent actions as “willful conduct, involving a conscious indifference . . . and reckless disregard” for the safety of the public. [Doc. 1, p. 3]. Likewise, Count II requests punitive damages sufficient to punish Regester for his “likely” violation of federal and state laws and regulations.

Even construing all reasonable inferences in Charger’s favor, Charger has failed to allege that Regester engaged in any specific conduct more egregious than the conduct upon which these negligence claims are based. The Court cannot infer from Charger’s limited factual allegations of negligent conduct that Regester somehow behaved intentionally or recklessly to the level required for punitive damages. To find otherwise would mean that a garden variety negligence claim like this one would, as a rule, always support a request for punitive damages.

Count III alleges [*13]  that J.B. Hunt is vicariously liable for Regester’s negligence in Counts I and II and requests punitive damages sufficient to punish J.B. Hunt. In support of dismissal, J.B. Hunt argues that Count III does not plead any reckless misconduct on J.B. Hunt’s part, as required for punitive damages. The Court agrees. Charger fails to plead any facts suggesting that J.B. Hunt knew or should have known Regester would behave negligently. Because the Complaint is devoid of facts showing that J.B. Hunt’s conduct was “tantamount to intentional wrongdoing,” this claim for punitive damages is dismissed.

Finally, Count V alleges that J.B. Hunt negligently failed to act reasonably in hiring, training, supervising, and retaining Regester and negligently failed to promulgate and enforce rules, regulations, and policies to ensure its drivers operated vehicles in a reasonably safe manner. Charger again requests an award of punitive damages by alleging that the previous actions constitute “willful conduct, involving a conscious indifference and wanton and reckless disregard for the rights and safety of [Charger] and the rest of the public.” [Doc. 1, p. 8]. J.B. Hunt argues that the absence of any factual [*14]  allegations regarding how it was “reckless” defeats this claim for punitive damages. Without commenting on whether Charger’s minimal factual allegations state a claim for ordinary negligence in Count V,2 the Court, regardless, cannot plausibly infer that J.B. Hunt’s alleged behavior rose to the level of intentional wrongdoing. Rather, Charger has failed to identify the facts necessary to state a claim for punitive damages–facts showing that J.B. Hunt knew its alleged employment practices were substantially likely to cause harm.

 

2   J.B. Hunt did not move for dismissal of Count V, and thus, the Court does not comment on this claim’s plausibility.

In support of his punitive damages claims, Charger argues that pursuant to Rule 11(b)(3), he has pled that he will “likely [be able] to deduce evidentiary support through further investigation or discovery” that is indicative of willful conduct.3 The Court is unpersuaded by this argument because, as previously discussed, Rule 12(b)(6) governs the legal sufficiency of a claim, not Rule 11(b)(3). Therefore, whether Regester complied with Rule 11(b)(3) is irrelevant to whether he states a plausible claim under Rule 12(b)(6).

 

3   Charger also argues that his belief that J.B. Hunt’s conduct was wanton and reckless is based [*15]  on the most recent safety measurement system report from the FMCSA, which Charger filed as an exhibit attached to his briefing. [Doc. 16-1]. Charger additionally argues that a complaint similar to his survived a motion to dismiss in another district court, and Charger filed this case as a second exhibit. [Doc. 16-2]. J.B. Hunt argues that the Court should not consider these exhibits because they are matters outside of Charger’s pleadings and are improper within the context of a 12(b)(6) motion. The Court agrees with respect to the safety report. Furthermore, the Court notes that this report provides data from the last two years, whereas Charger’s accident occurred five years ago, making this report completely irrelevant to the present action.

Although the Court does consider Charger’s case exhibit, this is an unreported district court decision, and as such, it is not binding on this court. Ctr. For Family Med. v. United States, 614 F.3d 937, 942 (8th Cir. 2010) (“One district court is not bound by the decision or reasoning of another district court involving other parties with the same issue.”).

For the previous reasons, Charger’s remaining punitive damages claims under Counts I, II, III, and V are dismissed without prejudice.

 

III. Conclusion

For the reasons [*16]  set forth above, Defendant J.B. Hunt’s motion to dismiss, [Doc. 7], is granted. Count IV is dismissed with prejudice; the requests for punitive damages under Counts III and V are dismissed without prejudice; and Count VI is dismissed without prejudice. Defendant Regester’s motion to dismiss, [Doc. 26], is granted in part and denied in part. The federal negligence per se claim under Count II is dismissed without prejudice but not the state negligence per se claim; the requests for punitive damages under Counts I and II are dismissed without prejudice.