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Schmidt v. ABF Freight System, Inc.

United States District Court, D. New Mexico

October 1, 2019

D. MARIA SCHMIDT, as Personal Representative of the Estate of ROBERT PARKER, Deceased, LINDA PARKER,
v.
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

          LAURA FASHING UNITED STATES MAGISTRATE JUDGE

         THIS 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.

         For the following reasons, the Court GRANTS the defendants' motion.

         I. Relevant Facts

         In 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:

         On May 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. ¶ 10.

         According 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. ¶ 14.

         Mr. 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.[1]

         II. The Complaint

         Count I 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.

         III. Discussion

         ABF 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.

         A. Motions to Dismiss Generally [2]

         “To 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. ...


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