2018 WL 3318955

United States District Court, W.D. Oklahoma.
Paul D. HARNESS, Plaintiff,
v.
TWG TRANSPORTATION, INC.; Kevin R. Saxton; and Carolina Casualty Insurance Company, Defendants.
Case No. CIV-18-462-D
|
Signed 07/05/2018
Attorneys and Law Firms
Christopher L. Brinkley, Tye H. Smith, Carr & Carr, Oklahoma City, OK, for Plaintiff.
Derrick T. DeWitt, Nelson Terry Morton DeWitt & Paruolo, Edmond, OK, J. Derek Cowan, Abowitz Timberlake Dahnke and Gisinger PC, Oklahoma City, OK, for Defendants.

ORDER
TIMOTHY D. DEGIUSTI, UNITED STATES DISTRICT JUDGE
*1 Defendant Carolina Casualty Insurance Company (CCIC) moves to dismiss all claims made against it in Plaintiff Paul D. Harness’s complaint for failure to state a claim upon which relief may be granted [Doc. No. 2]. Plaintiff has filed his response in opposition [Doc. No. 8] and CCIC has replied [Doc. No. 9]. The matter is fully briefed and at issue.

Background
This action stems from a motor vehicle accident which took place on March 7, 2016, in Oklahoma City, Oklahoma. Compl. [Doc. No. 2-4] ¶ 17. On that day, a truck-trailer operated by Defendant Kevin R. Saxton within the course of his employment with Defendant TWG Transportation, Inc. (TWG) collided with Plaintiff’s vehicle. Id. ¶¶ 18, 23. Plaintiff alleges that Defendant Saxton negligently caused the accident and, by extension, Plaintiff’s injuries resulting from the accident. Id. Additionally, Plaintiff states a claim against TWG for direct negligence, negligence per se, negligent entrustment, and negligent hiring, training, screening, and supervision of Defendant Saxton. Id. ¶¶ 27, 28. Finally, Plaintiff named CCIC a defendant due to its status as TWG’s liability insurance carrier. Id. ¶ 40.

Plaintiff alleges that under the Oklahoma Motor Carrier Act of 1995 (MCA), Okla. Stat. tit. 47, § 230.21 et seq., he may bring a direct action against CCIC for his injuries and damages. The MCA makes it unlawful for any motor carrier to operate or furnish service within Oklahoma without first having obtained a license from the Oklahoma Corporation Commission (OCC). Id. § 230.28. Additionally, prior to granting a license, a carrier must have an approved insurance policy or bond. Id. § 230.30. CCIC contends that since TWG never registered its insurance policy with the OCC, § 230.30 cannot be triggered here and CCIC cannot have an action brought directly against it.

Standard of Decision
Rule 8(a)(2) of the Federal Rules of Civil Procedure states that a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). The pleading must have sufficient factual matter that, when accepted as true, states “a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim to relief is plausible on its face when the plaintiff pleads facts that allow the court to reasonably infer that the defendant is liable for the alleged misconduct. Iqbal, 556 U.S. at 678. To survive a motion to dismiss, a pleading does not need detailed factual allegations, but must be more than a formulaic recitation of the elements of a cause of action or mere labels and conclusions. Twombly, 550 U.S. at 555. Courts must accept all well-pleaded allegations of the complaint, and must construe them in the light most favorable to the non-moving party. Thomas v. Kaven, 765 F.3d 1183, 1190 (10th Cir. 2014). Consideration of a Rule 12(b)(6) motion is limited to the complaint alone. Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002).

Discussion
*2 As a general rule, in Oklahoma a plaintiff may not bring a direct action against a defendant’s insurer. Daigle v. Hamilton, 782 P.2d 1379, 1381 (Okla. 1989). An exception to this rule is that an injured party may sue a motor carrier and its liability insurer when certain statutorily identified conditions are satisfied, or, as relevant here, “under a statute requiring the carrier to file a liability insurance policy or bond with the Oklahoma Corporation Commission.” Id. (citing Enders v. Longmire, 67 P.2d 12, 14 (Okla. 1937) ). In Daigle, the Oklahoma Supreme Court established the rule that a plaintiff could maintain a joint, direct action against the carrier and the insurer by virtue of the carrier’s obligation to maintain insurance under § 230.30. See Simpson v. Litt, No. CIV-17-339-R, 2017 WL 2271484, at *3 (W.D. Okla. May 23, 2017) (quoting Daigle, 782 P.2d at 1381).

However, in Fierro v. Lincoln General Insurance Co., 217 P.3d 158 (Okla. Civ. App. 2009), the Oklahoma Court of Civil Appeals carved out an exception to this rule and found that the MCA does not permit a direct action against an interstate motor carrier’s liability insurer when the insurer is properly registered in its home state. Id. at 160-61 (quoting Daigle, 782 P.2d at 1380). The court observed that the reasons for prohibiting a direct action against a defendant’s insurer “besides statutory directive, include policy, prohibition by judicial decision, lack of privity between the injured plaintiff and the insurer, misjoinder of the tort action and the action on the contract, and the enforcement of the ‘no action’ clause in the policy.” Id. (quoting Daigle, 782 P.2d at 1380). Post-Fierro, cases in the Western District of Oklahoma have held that insurance companies for interstate carriers who have not filed proof of insurance in Oklahoma may not be named as joint defendants. See, e.g., Hankla v. Lee, No. CIV-17-641-D, 2018 WL 563181 (W.D. Okla., Jan. 25, 2018); White v. Lewis, No. CIV-13-862-C, 2014 WL 7272464 (W.D. Okla., Dec. 18, 2014); Beebe v. Flores, No. CIV-11-1381-HE, 2012 WL 137780 (W.D. Okla., Jan. 28, 2012). A direct action against an insurer may be proper “if the Oklahoma Corporation Commission has issued [its insured] a motor carrier license.” See Simpson, 2017 WL 2271484, at *3.

Here, Plaintiff makes the bare assertion that “pursuant to § 230.30 and Oklahoma law, CCIC is a properly named party and a direct and joined action can be maintained against said insurance company for the injuries and damages suffered by Plaintiff Harness.” Compl. ¶ 40. However, Plaintiff states no facts sufficient to make CCIC a defendant under § 230.30, namely that TWG registered its insurance with the OCC. This situation is identical to Hankla, where the plaintiffs merely pled that the motor carrier’s liability insurer was a proper defendant solely due to the MCA. Hankla, 2018 WL 563181, at *2. This Court held in Hankla that, per Fierro, insurance companies for interstate carriers who have not filed proof of insurance with the OCC may not be named as joint defendants per the MCA. Id. Thus, here too CCIC may not be named a joint defendant because Plaintiff does not allege that TWG registered its insurance with the OCC.

Plaintiff claims in his response that because Oklahoma participates in Unified Carrier Registration, a direct action may be brought against CCIC under § 230.30 if TWG is registered under Unified Carrier Registration.1 Pl.’s Resp. Br. at 7. Plaintiff asserts that this allows a motor carrier to register annually with only one state and that such single-state registration satisfies the registration requirements in all participating states. Id. (citing Mid-Con Freight Sys., Inc., 545 U.S. at 443). Thus, Plaintiff contends, if TWG is so registered then it is effectively registered with the OCC and a direct action may be brought against CCIC under § 230.30. Id.

*3 The District Court for the Eastern District of Oklahoma, however, rejected this contention in Mason v. Dunn, No. CIV–14–282–KEW, 2016 WL 1178058 (E.D. Okla., Mar. 23, 2016). Mason held that out-of-state registration does not satisfy the requirement that the motor carrier’s liability policy be filed with the OCC before the insurer may be subject to direct action. Id. at *2-3. See also Simpson, 2017 WL 2271484, at *3 (because interstate carriers do not need to register in Oklahoma and § 230.30 applies only to motor carriers required to obtain a license from the OCC, interstate carriers who have registered proof of insurance in their home state pursuant to Unified Carrier Registration are not subject to § 230.30). The Court agrees with the decisions in Mason and Simpson. Even if TWG is registered under Unified Carrier Registration, CCIC still may not be named as a defendant because TWG is not subject to § 230.30 and did not file its insurance policy with the OCC.

Finally, Plaintiff claims in his response that failure to treat Unified Carrier Registration by TWG Transportation as registration with the OCC would “result in disparate treatment of Oklahoma citizens injured within the state of Oklahoma when compared to an Oklahoma registered motor carrier.” Pl.’s Resp. Br. at 7. This treatment, Plaintiff claims, is a violation of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution and Section 44 of Article IX of the Oklahoma Constitution, which requires domestic and foreign corporations to be treated the same in Oklahoma. Id. This is not accurate, however, as both Oklahoma and non-Oklahoma carriers receive the same treatment, in that both are required to maintain insurance and register it in their respective home states.

Further, contrary to Plaintiff’s claims, Oklahoma citizens have substantively the same remedy whether they are injured by in-state or out-of-state carriers. Intrastate carriers are required to register with the OCC and thus, under Daigle and § 230.30, direct actions may be brought against their insurers for damages. As to interstate carriers, § 230.30 allows plaintiffs to maintain an action “on the policy or bond” after judgment is entered against the motor carrier, and at that time the insurer may be a proper party to the action to the extent of the coverage of the policy. See Okla. Stat. tit. 47, § 230.30(a); Enders, 67 P.2d at 15. Although they cannot bring a direct action against an insurer initially in light of Fierro, plaintiffs may nonetheless recover the same damages from the carrier’s insurance policy after they win a judgment against a carrier, or they may bring direct action against the insurer if the insurer does not pay pursuant to the carrier’s policy after judgment. Fierro, 217 P.3d at 160. The only differences are procedural; therefore, bringing an action against the insurer after winning judgment rather than in an initial direct action against the insurer does not deprive Oklahomans their full substantive remedy in any way, as they are still able to secure their full recovery.

Based on the foregoing, the Court finds that CCIC’s Motion to Dismiss should be granted. Where dismissal is granted for failure to state a claim, the Court should grant leave to amend freely “if it appears at all possible that the plaintiff can correct the defect.” Triplett v. LeFlore Cty., 712 F.2d 444, 446 (10th Cir. 1983). Leave to amend is not automatic and may be properly denied where an amendment would be futile. Anderson v. Suiters, 499 F.3d 1228, 1238 (10th Cir. 2004). Although amendment may indeed be futile here, the Court is unwilling to state that, at this stage of the proceedings, Plaintiff is unable to state a claim upon which relief may be granted. Accordingly, dismissal is without prejudice to Plaintiff’s right to file an amended complaint.

Conclusion
*4 Defendant’s Motion to Dismiss [Doc. No. 2] is GRANTED. Plaintiff’s action against CCIC is dismissed without prejudice to Plaintiff’s right to amend his complaint. Plaintiff may file any amended complaint within twenty (20) days of this Order.

IT IS SO ORDERED this 5th day of July, 2018.

All Citations
Slip Copy, 2018 WL 3318955

Footnotes

1
The Unified Carrier Registration System evolved from, replaced, and serves effectively the same purpose as the now-defunct Single State Registration System. See 49 U.S.C. § 13908(a). The systems’ goal was to allow a trucking company to fill out one set of forms in one state (the base state), and by doing so to register its federal permit in every participating state through which its trucks will travel. Mid-Con Freight Sys., Inc. v. Mich. Pub. Serv. Comm’n, 545 U.S. 440, 443 (2005).

2018 WL 3233341

United States District Court, E.D. Tennessee, Winchester Division.
Rivka C. STEINBERG, Plaintiff,
v.
LUEDTKE TRUCKING, INC., Defendant.
No. 4:17-CV-9
|
Filed 07/02/2018
Attorneys and Law Firms
Catherine Dorvil, Jeffrey G. Granillo, Chambliss, Bahner & Stophel, PC, Chattanooga, TN, for Plaintiff.
Gary M. Kellar, Lance W. Thompson, Spicer Rudstrom, PLLC, Nashville, TN, for Defendant.

MEMORANDUM OPINION
Leon Jordan, United States District Judge
*1 This matter is before the Court on Defendant’s Motion for Summary Judgment [doc. 63], Defendant’s Brief [doc. 64], Defendant’s Statement of Undisputed Facts [doc. 65], Plaintiff’s Response [doc. 69], Defendant’s Reply [doc. 70], and Plaintiff’s Response to Show-Cause Order [doc. 75]. For the reasons herein, the Court will grant Defendant’s motion.

I. BACKGROUND
After attending the Bonnaroo Music and Arts Festival in Manchester, Tennessee, Plaintiff Rivka C. Steinberg traveled with her friends to a truck plaza alongside the interstate. [Pl.’s Dep., doc. 69-1, at 17:2–13].1 They decided to camp out in a field behind the truck plaza for the night. [Id. at 17:12–13]. Ms. Steinberg’s friends offered a bottle of beer to her, and as she consumed it, she became dizzy, lost control over her body, and blacked out. [Id. at 17:13–16; 18:13–19, 22–24].

During that same night, Mr. Randal Luedtke, a commercial truck driver, was en route to Tennessee from Florida, and when he arrived in Tennessee, he pulled his tractor-trailer into the truck plaza in Manchester—the same truck plaza where Ms. Steinberg was present for the night. [Luedtke Dep., doc. 65-1, at 46:15–25; 47:1–8]. He slept for several hours in his truck. [Id. at 48:24–25; 49:1–2]. When he woke at 3:00 a.m., he completed paperwork, and around 6:00 a.m., he placed his truck in gear. [Id. at 51:3–18]. According to his account, he backed up to reposition his truck into a “nice spot,” [id. at 51:23],2 planning to “go inside the truck stop and get some coffee, use the restroom, and do a pre-trip inspection before hitting the road,” [Def.’s Undisputed Facts at 2].

The sound of the moving truck stirred Ms. Steinberg to consciousness—at which point she realized that she was not in the field anymore but, somehow, was now lying underneath the rear of Mr. Luedtke’s truck. [Pl.’s Dep. at 17:17–18; 20:11–15]. As the truck’s rear tire approached her, she was unable to avoid it, and it ran over and mangled her leg. [Id. at 17:17–21; 20:11–15, 17–18]. After hearing a noise, Mr. Luedtke looked in his side-view mirror and, for the first time, saw Ms. Steinberg “sitting on the roadway back there, which [he] didn’t know was a roadway.” [Luedtke Dep. at 52:2–4].3 He phoned 911, and she was airlifted to a hospital, where she had emergency surgery on her leg. [Id. at 52:19–24; 53:23; Pl.’s Dep. at 34:21–25; 35:1–9]. She was hospitalized for more than a month. [Pl.’s Dep. at 35:22–25].

Ms. Steinberg now believes that the beer she drank that night might have been laced with a drug, possibly a “roofie.” [Id. at 18:1–5]. Between drinking the beer and regaining consciousness underneath Mr. Luedtke’s truck, she has no memory of anything that happened. [Id. at 18:22–24]. She has “no idea” how she went from being in the field to lying under the truck. [Id. at 19:3–5]. And on the morning of the incident, she could not locate her friends, who had apparently vanished. [Id. at 19:6–18].

*2 Ms. Steinberg now brings suit in this Court against Defendant Luedtke Trucking, Inc., claiming that through Mr. Luedtke, its employee and agent, it had a duty to ensure that “there were no hazards presented to others” before he operated his truck on the morning of the incident. [Am. Compl, doc. 43, ¶ 8]. Her claims against Luedtke Trucking include one for negligence and one for negligence per se. [Id. at 3–4]. Luedtke Trucking now moves for summary judgment on both claims.

As the parties are aware, the Court has already ruled in part on Luedtke Trucking’s request for summary judgment. [Mem. Op., doc. 73; Order, doc. 74]. The Court declined to enter summary judgment on Ms. Steinberg’s negligence claim, but it reserved ruling as to whether summary judgment was appropriate on Ms. Steinberg’s claim for negligence per se, citing jurisdictional grounds. [Mem. Op. at 15–18]. Although this claim resounds in state law, it has conterminous foundations in federal law because Ms. Steinberg asserts that Luedtke Trucking breached a duty within the Code of Federal Regulations—rather than within a Tennessee statute or regulation. [Am. Compl., doc. 43, ¶¶ 17–20]. Because this hybrid claim contains a federal question—whether the Code of Federal Regulations imposes a legal duty on Mr. Luedtke—the Court raised a sua sponte inquiry into its ability to exercise subject matter jurisdiction over this claim, and it then ordered and awaited a response to its concerns from Ms. Steinberg. See Merrell Dow Pharms. Inc. v. Thompson, 478 U.S. 804, 814 (1986) (“[T]he presence of the federal issue as an element of the state tort is not the kind of adjudication for which jurisdiction would serve congressional purposes and the federal system.”); Dillon v. Medtronic, Inc., 992 F. Supp. 2d 751, 756 (E.D. Ky. 2014) (“The paradigmatic example of a state claim with an embedded (though not necessarily significant) federal issue is a common-law claim for negligence per se based on the violation of a federal duty.” (citing id.) ).

With a state claim like this one, federal jurisdiction “will lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress.” Gunn v. Minton, 568 U.S. 251, 258 (2013). But the federal courts have only applied these four requirements to cases in which federal question jurisdiction is the stated basis for subject matter jurisdiction. See id. at 256–59; Dillon, 992 F. Supp. 2d at 754–58. With this fact in mind and in light of Ms. Steinberg’s response, the Court lacks precedent to extend Gunn’s requirements to a case like this one—in which the Court’s lone jurisdictional foothold is diversity jurisdiction and not federal question jurisdiction. See Charvat v. NMP, LLC, 656 F.3d 440, 446 (6th Cir. 2011) (“If there is diversity jurisdiction, the district court may not decline to decide the state-law claims.”); Mitchell v. Lemmie, 231 F. Supp. 2d 693, 699 n.2 (S.D. Ohio 2002) (“To make clear, a state law claim which ‘arises under’ federal law remains a state law claim…. Unlike claims which are completely preempted … they are not converted into claims under a federal statute.”); see also Fuller v. BNSF Ry. Co., 472 F. Supp. 2d 1088, 1095 (S.D. Ill. 2007) (“[A] tort case in which a violation of a federal regulation is asserted merely as an element of a negligence claim is unmistakably of the kind that, absent federal subject matter jurisdiction in diversity, belongs in state court[.]” (emphasis added) (citation omitted) ).

*3 Having harbored some initial misgivings, the Court made the requisite inquiry into its ability to exercise subject matter jurisdiction over Ms. Steinberg’s claim for negligence per se. See Ky. Press Ass’n v. Kentucky, 454 F.3d 505, 508–09 (6th Cir. 2006) (observing that courts have “an independent duty ‘to inquire sua sponte whenever a doubt arises as to the existence of federal jurisdiction’ ” (quotation omitted) ). It is now satisfied and ready to address the remainder of the parties’ arguments as to summary judgment.

II. LEGAL STANDARD
Summary judgment is proper when the moving party shows, or “point[s] out to the district court,” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), that the record—the admissions, affidavits, answers to interrogatories, declarations, depositions, or other materials—is without a genuine issue of material fact and that the moving party is entitled to judgment as a matter of law, Fed. R. Civ. P. 56(a), (c). The moving party has the initial burden of identifying the basis for summary judgment and the portions of the record that lack genuine issues of material fact. Celotex, 477 U.S. at 323. The moving party discharges that burden by showing “an absence of evidence to support the nonmoving party’s” claim or defense, id. at 325, at which point the nonmoving party, to survive summary judgment, must identify facts in the record that create a genuine issue of material fact, id. at 324.

Not just any factual dispute will defeat a motion for summary judgment—the requirement is “that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” if it may affect the outcome of the case under the applicable substantive law, id., and an issue is “genuine” if the evidence is “such that a reasonable jury could return a verdict for the nonmoving party.” Id. In short, the inquiry is whether the record contains evidence that “presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251–52. When ruling on a motion for summary judgment, a court must view the facts and draw all reasonable inferences in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007). “[T]he judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249. A court may also resolve pure questions of law on a motion for summary judgment. See Hill v. Homeward Residential, Inc., 799 F.3d 544, 550 (6th Cir. 2015).

III. ANALYSIS
Luedtke Trucking moves for summary judgment on Ms. Steinberg’s claim for negligence per se—a doctrine under which a defendant can be negligent as a matter of law, or per se, for violating a statute that promotes safety. See Rains v. Bend of the River, 124 S.W.3d 580, 590 (Tenn. Ct. App. 2003) (“The effect of declaring conduct negligent per se is to render the conduct negligent as a matter of law. Thus, a person whose conduct is negligent per se cannot escape liability by attempting to prove that he or she acted reasonably under the circumstances.” (citations and footnote omitted) ). A claim for negligence per se has three elements: (1) a violation of a statutory or regulatory duty of care; (2) a showing that the statute or regulation was meant to benefit and protect the injured party; and (3) proximate cause. Chase, Jr. v. Physiotherapy Assocs., Inc., No. 02A01-9607-CV-00171, 1997 WL 572935, at *5 (Tenn. Ct. App. Sept. 5, 1997).

*4 Ms. Steinberg brings her claim for negligence per se under the Code of Federal Regulations—specifically the Federal Motor Carrier Safety Regulations (“FMCSR”), 49 C.F.R. §§ 390.42, 392.2, 392.7, 392.9, 396.3, 396.13. [Am. Compl. ¶¶ 16–20]. In these regulations, the Federal Motor Carrier Safety Administration has promulgated various requirements relating to the operation and inspection of commercial motor vehicles. In pursuing summary judgment on this claim, Luedtke Trucking challenges whether “such regulations establish a duty” that extends to it. [Def.’s Br. at 21]. The Court sees no need to examine Luedtke Trucking’s argument beyond this simple assertion, which is undoubtedly accurate.

Although a violation of a regulation is “a possible ground for application of the negligence per se doctrine” under Tennessee law, Whaley v. Perkins, 197 S.W.3d 665, 673–74 (Tenn. 2006) (citation omitted), the regulation must “expressly grant[ ] [a party] a private right of action for negligence per se,” Thomas & Assocs., Inc., v. Metro. Gov’t of Nashville, No. M2001-00757-COA-R3-CV, 2003 WL 21302974, at *10 (Tenn. Ct. App. June 6, 2003) (citing Premium Fin. Corp. of Am. v. Crumps Ins. Servs. of Memphis, Inc., 978 S.W.2d 91, 94 (Tenn. 1998); Reed v. Alamo Rent-a-Car, Inc., 4 S.W.3d 667, 690 (Tenn. Ct. App. 1999) ). Tennessee courts have stated that they will not “casually engraft private rights of enforcement onto government regulation statutes absent some clear indication that the legislature intended that the statutes should be enforced by private right of action.” Id. (citing Premium Fin. Corp., 978 S.W.2d at 94; Reed, 4 S.W.3d at 690); see Premium Fin. Corp., 978 S.W.2d at 94 (“We do not find such clear intention in the statute under review.”).

The FMCSR does not create a private right of action—the absence of which renders it incapable of operating as a platform for Ms. Steinberg’s claim for negligence per se. See Alexander v. Sandoval, 532 U.S. 275, 291 (2001) (“[I]t is most certainly incorrect to say that language in a regulation can conjure up a private cause of action that has not been authorized by Congress. Agencies may play the sorcerer’s apprentice but not the sorcerer himself.”); Smith v. Dearborn Fin. Servs., Inc., 982 F.2d 976, 979 (6th Cir. 1993) (“[F]ederal regulations cannot themselves create a cause of action; that is a function of the legislature.” (citation omitted) ); see also Harris v. FedEx Nat’l LTL, Inc., 760 F.3d 780, 784 n.2 (8th Cir. 2014) (“We doubt there is a federal private right of action for a violation of the FMCSR.” (citation omitted) ); Leon v. FedEx Ground Package Sys. Inc., No. CIV 13-1005 JB/SCY, 2016 WL 836980, at *11 (D.N.M. Feb. 16, 2016) (“[T]here is no federal private right of action allowing personal injury or wrongful death plaintiffs to hold defendants liable for violations of the FMCSR.”); Ware v. Transp. Drivers, 30 F. Supp. 3d 273, 276 (D. Del. 2014) (“To the extent that plaintiff asserts a private cause of action under [the FMCSR] … the claim[ ] fail[s].” (citation omitted) ).4 Luedtke Trucking is therefore entitled to summary judgment on Ms. Steinberg’s claim for negligence per se.

IV. CONCLUSION
*5 Luedtke Trucking satisfies its burden for summary judgment on Ms. Steinberg’s claim for negligence per se. The Court orders as follows:
1. Luedtke Trucking’s Motion for Summary Judgment [doc. 63] is GRANTED, but only as to Ms. Steinberg’s claim for negligence per se.
2. Ms. Steinberg’s claim for negligence per se is DISMISSED.
3. The Court’s Order to Show Cause [doc. 74] is DISCHARGED.
The Court will enter an order consistent with this opinion.

IT IS SO ORDERED.

All Citations
Slip Copy, 2018 WL 3233341

Footnotes

1
Pincites to the record refer to the electronic page numbers.

2
Mr. Luedtke testified that a more attractive parking space had become available in the truck plaza, so he “was just going to move over.” [Luedtke Dep. at 24:10–12].

3
Mr. Luedtke testified that “trucks come around from the tire shop back there.” [Id. at 21:18–19].

4
Some courts have grappled with the issue of whether 49 U.S.C. § 14704(a), which parties have argued is the FMCSR’s statutory analog, creates a private right of action in conjunction with the FMCSR. See Owner-Operator Indep. Drivers Ass’n v. New Prime, Inc., 192 F.3d 778, 783–85 (8th Cir. 1999); Schramm v. Foster, 341 F. Supp. 2d 536, 547 (D. Md. 2004). But Ms. Steinberg has not alleged or argued that her claim in any way springs from 49 U.S.C. § 14704(a). She maintains only that it arises under the FMCSR.