United States District Court, D. New Mexico
D. MARIA SCHMIDT, as Personal Representative of the Estate of ROBERT PARKER, Deceased, LINDA PARKER,
ABF FREIGHT SYSTEM, INC., a Foreign Profit Corporation doing business in New Mexico, and TIMOTHY YERINGTON, Defendants. and JERALD JONES, Plaintiffs, and JERALD JONES, Plaintiff-in-Intervention
MEMORANDUM OPINION AND ORDER GRANTING MOTION FOR
PARTIAL JUDGMENT ON THE PLEADINGS
FASHING UNITED STATES MAGISTRATE JUDGE
MATTER comes before the Court on defendants ABF Freight
System, Inc. (ABF) and Timothy Yerington's Motion for
Partial Judgment on the Pleadings Against Plaintiffs for
Failure to State a Claim (Doc. 76), filed June 17, 2019.
Plaintiffs did not respond to the motion.
following reasons, the Court GRANTS the defendants'
ruling on a motion for judgment on the pleadings under Rule
12(c), the Court must accept as true all facts alleged in the
complaint. See Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007); see also Jacobsen v. Deseret Book
Co., 287 F.3d 936, 941 n.2 (10th Cir. 2002) (“We
use the same standard when evaluating 12(b)(6) and 12(c)
motions.”). It also must view these factual allegations
in the light most favorable to the plaintiff. See
Twombly, 550 U.S. at 555. Viewing the facts
alleged in the complaint in this manner, the complaint
establishes the following:
10, 2017, at about 1:41 pm, defendant Timothy Yerington, a
professional truck driver, was driving a commercial
semi-tractor trailer truck eastbound on I-40 in the right
lane of traffic near mile marker 94.8. Doc. 1-1 ¶¶
7-9. Mr. Yerington was operating a semi-truck owned by
defendant ABF. Id. ¶¶ 7, 8. Robert W.
Parker, then age 81, was riding in the front passenger seat
of his own Ford F-350 truck, which was pulling a horse
trailer that contained seven race horses. Id.
¶¶ 1, 10. Jerald Jones was driving Mr. Parker's
truck, and Luis Alvarado was riding in the rear passenger
seat. Id. ¶ 10. Mr. Parker's truck was
traveling eastbound in the left lane of I-40. Id.
to the complaint, Mr. Yerington negligently pulled his
semi-truck into the eastbound left lane in front of Mr.
Parker's truck. Id. ¶ 11. Mr. Jones slowed
down in an attempt to avoid hitting the rear of Mr.
Yerington's truck. Id. ¶ 12. The vehicles
collided and continued forward side by side towards the guard
rail on the left shoulder of the eastbound lane. Id.
¶ 13. Defendants' semi-truck wrapped around the
front end of Mr. Parker's truck, pinning Mr. Parker's
truck up against the guard rail and causing severe damage to
the right side of Mr. Parker's vehicle. Id.
Parker sustained severe bodily injuries as a result of the
crash, which caused his death. Id. ¶ 15. A
medical investigator pronounced Mr. Parker dead at the crash
scene. Id. Plaintiff D. Maria Schmidt is the
Wrongful Death Personal Representative of Mr. Parker's
estate. Id. ¶ 2. Plaintiff Linda Parker is Mr.
Parker's widow. Id. ¶ 3.
of the complaint alleges negligence and negligence per se
against defendant Yerington and is not the subject of this
motion. Count II alleges negligence, negligence per se, and
joint and several liability against defendant ABF. Count II
includes allegations of negligent supervising and monitoring,
aiding and abetting, and statutory violations. See
Doc. 1-1 ¶¶ 33-39. Count III alleges loss of
consortium on behalf of Linda Parker, which also is not the
subject of this motion.
argues that plaintiffs' allegations against it for
negligent supervising and monitoring, aiding and abetting,
and for statutory violations are not supported by any factual
allegations in the complaint and instead rely solely on
vague, conclusory allegations. See Doc. 76 at 6-8.
The plaintiffs, having failed to respond to ABF's motion,
have consented to the Court granting the motion. See
D.N.M.LR-Civ. 7.1(b) (“The failure of a party to file
and serve a response in opposition to a motion within the
time prescribed for doing so constitutes consent to grant the
motion.”). The Court nonetheless will discuss the
merits of ABF's motion and grant it on the merits.
Motions to Dismiss Generally 
withstand a motion to dismiss, a complaint must have enough
allegations of fact, taken as true, ‘to state a claim
to relief that is plausible on its face.'” Kan.
Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th
Cir. 2011) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). While “‘a court must
accept as true all of the allegations contained in a
complaint, '” this rule does not apply to legal
conclusions. Id. (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)). “[A] plaintiff
must offer specific factual allegations to support each
claim.” Id. (citation omitted). A complaint
survives only if it “states a plausible claim for
relief.” Id. ...