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Chavez-Matchie v. Jack Cooper Transport Co.

United States District Court, D. Kansas

June 1, 2017

BELINDA CHAVEZ-MATCHIE, Plaintiff,
v.
JACK COOPER TRANSPORT CO., et al., Defendants.

          MEMORANDUM AND ORDER

          JULIE A. ROBINSON UNITED STATES DISTRICT JUDGE

         This action arises out of a motor vehicle collision between Plaintiff Belinda Chavez-Matchie and Defendant David L. Vickers, who was operating a tractor-trailer in the course and scope of his employment with Defendant Jack Cooper Transport Company at the time of the accident. Before the Court are Defendants' Motions to Dismiss and/or to Strike Allegations in Plaintiff's Complaint (Docs. 3, 7). The motions are fully briefed and the Court is prepared to rule. As explained more fully below, the Court grants in part and denies in part Defendants' motions to dismiss.

         I. Factual Background

         The following facts are alleged in the Complaint and assumed to be true for purposes of deciding this motion. On May 31, 2016, Plaintiff was traveling westbound in her motor vehicle on Highway 54 in Butler County, Kansas. She was driving in the passing lane of the highway parallel to a tractor-trailer driven by Vickers, when Vickers made an abrupt lane change into her lane, striking her vehicle. At the time of the accident, Vickers was acting within the course and scope of his employment with Jack Cooper Transport. Vickers did not see Plaintiff's vehicle when he changed lanes, and believed he was driving on Highway 77 rather than Highway 54. As a result of the accident, Plaintiff suffered substantial neck and spinal injuries, pain and suffering, and economic losses.

         Plaintiff's Complaint does not specifically label the claims alleged against Defendants.[1]But the substance of the Complaint does assert claims of negligence against Vickers and Jack Cooper Transport. Plaintiff raises claims against Jack Cooper Transport under the doctrine of respondeat superior, and based on theories of negligent hiring, retention, qualification, and supervision. In support of these claims, Plaintiff points to the Federal Motor Carrier Safety Regulations (“FMCSRs”) as a source of industry standards. She attaches as Exhibit B the Company Snapshot for Jack Cooper Transport, obtained on the Federal Motor Carrier Safety Administration's (“FMCSA”) website. According to Plaintiff, this exhibit demonstrates “that Jack Cooper Transport has a systemic problem which is a habit, custom and routine practice of allowing hours-of-service violations; a habit, custom and a routine practice of unsafe driving violations; as well as a custom, habit and a routine business practice of failing to appropriately maintain its fleet of commercial motor vehicles for safety.”[2] Included in her prayer for relief is a request for attorney fees under K.S.A. § 66-176.

         II. Motion to Dismiss

         A. Standard

         Defendants move to dismiss several claims alleged in the Complaint under Fed.R.Civ.P. 12(b)(6). To survive a motion to dismiss for failure to state a claim, a complaint must present factual allegations, assumed to be true, that “raise a right to relief above the speculative level, ” and must contain “enough facts to state a claim to relief that is plausible on its face.”[3] To state a claim for relief, “the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.”[4] The plausibility standard does not require a showing of probability that a defendant has acted unlawfully, but requires more than “a sheer possibility.”[5] “[M]ere ‘labels and conclusions, ' and ‘a formulaic recitation of the elements of a cause of action' will not suffice; a plaintiff must offer specific factual allegations to support each claim.”[6] Finally, the Court must accept the nonmoving party's factual allegations as true and may not dismiss on the ground that it appears unlikely the allegations can be proven.[7]

         The Supreme Court has explained the analysis as a two-step process. For the purposes of a motion to dismiss, the court “must take all the factual allegations in the complaint as true, [but] we ‘are not bound to accept as true a legal conclusion couched as a factual allegation.'”[8] Thus, the court must first determine if the allegations are factual and entitled to an assumption of truth, or merely legal conclusions that are not entitled to an assumption of truth.[9] Second, the court must determine whether the factual allegations, when assumed true, “plausibly give rise to an entitlement to relief.”[10] “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”[11]

         B. Discussion

         Because Plaintiff's Complaint does not separately label her claims for relief in this case, Defendants initially moved to dismiss several claims that Plaintiff now clarifies are not alleged: negligence per se, and claims under the Federal Motor Carrier Safety Regulations and the Federal Motor Carrier Act (“MCA”). Plaintiff clarifies in the response brief that her references in the Complaint to the MCA and FMCSRs are to establish the minimum standard of care for her general negligence claims against these Defendants. Therefore, to the extent Defendants move to dismiss claims of negligence per se, or federal claims under the MCA or FMCSRs, the motion is moot. Defendants' remaining arguments for dismissal are: (1) Plaintiff fails to allege sufficient facts to support claims against Jack Cooper Transport for negligent hiring, supervision, or retention; (2) Plaintiff cannot recover attorneys' fees under K.S.A. § 66-176; and (3) Plaintiff's common law negligence claims cannot be based on allegations that Jack Cooper Transport is an unsafe motor carrier that fails to follow governing federal safety regulations.

         1. Negligent Hiring, Retention, Qualification, Supervision, and Training

         Under Kansas law, Plaintiff may be able to proceed against Jack Cooper Transport under theories of negligent hiring, retention, or supervision. Negligent hiring and retention requires that the employer, “by virtue of knowledge of the employee's particular quality or propensity, have reason to believe that an undue risk of harm exists to others as a result of continued employment of that employee; and the harm which results must be within the risk created by the known propensity.”[12] A claim of negligent supervision, “includes not only the failure to supervise but also the failure to control persons with whom the defendant has a special relationship, including the defendant's employees or persons with dangerous propensities.”[13]Liability under these theories is distinct from imputed liability under the doctrine of respondeat superior; it is based on the separate duty by the employer to use reasonable care in selecting, retaining, and supervising its employees.[14]

         First, Defendants argue that there is no cause of action under Kansas law for negligent “qualification.” Plaintiff does not respond to this argument or provide this Court with authority that such a claim is cognizable under Kansas law. Therefore, the Court dismisses Plaintiff's claim of negligent qualification against Jack Cooper Transport.

         Next, Defendants argue that Plaintiff has failed to allege facts to support the elements of a negligent hiring, retention, or supervision claim. Some of the facts alleged in the Complaint in support of these claims are: (1) Jack Cooper Transport hired, supervised, and trained Vickers; (2) Jack Cooper Transport failed to properly train and supervise “drivers like Vickers” as a cost cutting measure; (3) Jack Cooper Transport consciously failed to comply with certain federal safety regulations in training and supervising its drivers; (4) Jack Cooper Transport failed to immediately terminate, reprimand, or retrain Vickers after the accident; (5) Jack Cooper Transport negligently hired, retained, supervised and trained its drivers' managers; (6) Jack Cooper Transport failed to use reasonable care in hiring, retaining, supervising, and training its drivers and knew or reasonably should have known that they had hired unsafe and incompetent employees and agents; and (7) Defendants' failure to use reasonable care in hiring, retaining, supervising, and training its drivers was the proximate cause of Plaintiff's injuries. These factual allegations give rise to plausible claims of relief. Defendant Jack Cooper Transport's motion to dismiss these claims is denied.

         2. Attorneys' Fees under ...


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