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Certain Underwriters at Lloyd & Partners, London v. Trimac Transportation Group, Inc.

United States District Court, D. New Mexico

July 24, 2019

CERTAIN UNDERWRITERS AT LLOYD & PARTNERS, LONDON, SUBSCRIBING TO POLICY NUMBER DC1602445, Plaintiffs,
v.
TRIMAC TRANSPORTATION GROUP, INC., Defendant.

          Attorney for Plaintiffs Conte C. Cicala

          Attorney for Defendant Yosef W. Abraham

          MEMORANDUM OPINION AND ORDER

          MARTHA VÁZQUEZ UNITED STATES DISTRICT JUDGE.

         THIS 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 GRANTED.

         BACKGROUND

         Plaintiffs 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.

         On 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 control.
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, 234, 984.53.

Id. at 8.

         Defendant 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 at 1-2.

         STANDARD

         The 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 ...


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