United States District Court, D. New Mexico
DEANDRA SHONTRELL GATEWOOD and AMBER TE WHITE, individually and as parent and next friend of D.G., a minor, Plaintiffs,
ESTATE OF JASON E. THOMPSON, individually and as agent of Thompson Oilfield Hauling Services, et al., Defendants.
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO
DISMISS ALL CLAIMS AGAINST DEFENDANT KAYS
GREGORY B. WORMUTH, UNITED STATES MAGISTRATE JUDGE.
MATTER comes before the Court on Defendant Tommy W. Kays
Individually and d/b/a TNT Pilot Car Service's Rule
12(b)(6) Motion to Dismiss Plaintiffs' Claims Against
Him. Doc. 10. Having considered the motion and
briefing (docs. 16, 18), the Court will
GRANT the motion for the reasons stated below.
October 9, 2018, a tractor-trailer carrying an oversize load
crossed into the lane of oncoming traffic and crashed head-on
into a commercial truck operated by Plaintiff Deandra
Shontell Gatewood. See doc. 1 at 3-4. Plaintiff
Gatewood sustained serious injuries, and Defendant Jason E.
Thompson, the driver of the oversize load, was killed. At the
time of the accident, Defendant Tommy W. Kays, the party now
seeking dismissal, was operating a pilot vehicle driving in
front of the tractor-trailer. See id. at 4. The
purpose of a pilot vehicle is to warn the public of the
hazards posed by the oversize load. See id.
do not allege that Defendant Kays' pilot vehicle exited
the correct lane or was otherwise directly involved in the
crash. However, in Counts 5 and 6 of their Complaint they
allege various negligent acts and omissions on his part
including the failure to adequately warn traffic of the
oversize load, the failure to warn Defendant Thompson of
conditions ahead, and the failure to ensure that the oversize
load safely reached its destination. See id. at
August 16, 2019, Defendant Kays filed the instant motion to
dismiss the Plaintiffs' claims against him based on
failure to state a claim. Doc. 10. He argues that
Plaintiffs' factual allegations are conclusory and
insufficient to satisfy the federal pleading standard.
See id. at 4-7. In the alternative, he disputes that
he had a duty to control the operation of Defendant
Thompson's vehicle based on the New Mexico Administrative
Code or other law, and therefore asks that the Court dismiss
paragraphs 59(D), 64, and 65 of the Complaint with prejudice.
See id. at 7-10.
filed a response on August 30, 2019, contending that their
factual allegations were adequately pleaded and that
Defendant Kays had a duty of care toward Plaintiffs. See
generally doc. 16. Defendant Kays replied on September
13, 2019 (doc. 18), and the motion to dismiss is now
before the Court.
Standard of Review
diversity action, the federal court applies federal
procedural law and the substantive law of the state in which
it sits. Sims v. Great Am. Life Ins. Co., 469 F.3d
870, 877 (10th Cir. 2006) (citing Hanna v. Plumer,
380 U.S. 460, 465 (1965)). The pleading requirements in this
case therefore derive from federal law, while the negligence
standard is drawn from New Mexico state law.
survive a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), a complaint “must contain
sufficient factual matter, accepted as true, ‘to state
a claim to relief that is plausible on its face.'”
Leverington v. City of Colorado Springs, 643 F.3d
719, 723 (10th Cir. 2011) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)). This standard does not
require “detailed factual allegations, ” but it
does require more than “labels and conclusions”
or “a formulaic recitation of the elements of a cause
of action.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007). When ruling on a 12(b)(6) motion, the
court must “assume the truth of all well-pleaded facts
in the complaint, and draw all reasonable inferences
therefrom in the light most favorable to the
plaintiffs.” Leverington, 643 F.3d at 723
(quoting Dias v. City & Cty. of Denver, 567 F.3d
1169, 1178 (10th Cir. 2009)). However, the court need not
accept the truth of any legal conclusions. Iqbal,
556 U.S. at 678.
plausibility standard “does not impose a probability
requirement.” Twombly, 550 U.S. at 556.
Rather, “a well-pleaded complaint may proceed even if
it appears ‘that a recovery is very remote and
unlikely.'” Id. at 556 (quoting
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). The
complaint must only be “enough to raise a right to
relief above the speculative level … on the assumption
that all the allegations in the complaint are true (even if
doubtful in fact).” Id. at 555. However,
“[w]here a complaint pleads facts that are
‘merely consistent with' a defendant's
liability, it ‘stops short of the line between
possibility and plausibility of ‘entitlement to
relief.'” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 557). In other words, the
well-pleaded facts must “permit the court to infer more
than the mere possibility of misconduct”; otherwise,
the plaintiff has not shown entitlement to relief.
Id. at 679.
negligence claim under New Mexico law requires the plaintiff
to establish (1) the existence of a duty from defendant to
plaintiff; (2) a breach of that duty; (3) that the breach was
both a proximate cause and cause in fact of the
plaintiff's harm; and ...