United States District Court, D. New Mexico
CERTAIN UNDERWRITERS AT LLOYD & PARTNERS, LONDON, SUBSCRIBING TO POLICY NUMBER DC1602445, Plaintiffs,
TRIMAC TRANSPORTATION GROUP, INC., Defendant.
Attorney for Plaintiffs Conte C. Cicala
Attorney for Defendant Yosef W. Abraham
MEMORANDUM OPINION AND ORDER
VÁZQUEZ UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Defendant's Rule
12(b)(6) Motion to Dismiss Plaintiff's Third Cause of
Action and Rule 12(f) Motion to Strike [Doc. 41], filed
January 14, 2019. As the Court will explain below, having
considered the briefs, relevant law, and being otherwise
fully informed, Defendant's motion is
filed their initial complaint on December 18, 2017, in the
Fourth Judicial District Court, Guadalupe County, New Mexico,
to recover damages sustained from an accident that occurred
on December 17, 2016, involving a tractor trailer owned by
Defendant. Doc. 1-1. The case was removed to this Court based
on diversity jurisdiction on April 10, 2018. Doc. 1.
December 31, 2018, Plaintiffs filed their First Amended
Complaint, alleging three causes of action: negligence,
negligence per se, and res ipsa loquitur. Doc. 36. The res
ipsa loquitur claim states:
43. The Trimac Truck at issue in the aforementioned accident
was Defendant, Trimac's, responsibility to manage and
44. The aforementioned accident which caused damage to the
Cargo is the type of event which does not ordinarily occur in
the absence of negligence on the part of Defendant, Trimac,
in control of the Trimac Truck.
45. As a direct and proximate cause of Defendants'
negligence, Plaintiffs suffered loss of the Cargo in an
amount to be proven at trial, but in no event less than $34,
Id. at 8.
requests that the Court “dismiss with prejudice the
claim of ‘res ipsa loquitor' [sic] because it is
not a cause of action at all” and strike “all
allegations relative to res ipsa loquitor [sic] . . . from
the Complaint as immaterial and impertinent.” Doc. 41
case was removed to this Court on diversity jurisdiction. New
Mexico substantive law, therefore, controls. See Los
Lobos Renewable Power, LLC v. Americulture, Inc, 885
F.3d 659, 668 (10th Cir. 2018) (“[I]n a federal
diversity action, the district court applies state
substantive law - those rights and remedies that bear upon
the outcome of the suit-and federal ...