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Gatewood v. Estate of Thompson

United States District Court, D. New Mexico

October 3, 2019

DEANDRA SHONTRELL GATEWOOD and AMBER TE WHITE, individually and as parent and next friend of D.G., a minor, Plaintiffs,
v.
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.

         THIS 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.

         I. Background

         On 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.

         Plaintiffs 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 13-16.

         On 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.

         Plaintiffs 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.

         II. Standard of Review

         In a 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.

         A. Rule 12(b)(6)

         To 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.

         The 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.

         B. Negligence

         A 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 ...


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