Opinion
CASE NO. 2:07-CV-00521-WKW [wo].
April 28, 2008
MEMORANDUM OPINION AND ORDER
This case is before the court on three motions to dismiss: two filed jointly by Defendants David Davis Farms, Inc. ("Davis Farms"), and Martin Phillip Horn ("Horn") (Docs. # 5 # 14), and one filed by Defendant Farm Master, Inc. ("Farm Master") (Doc. # 18). For the reasons that follow, these motions are due to be DENIED.
I. FACTS AND PROCEDURAL HISTORY
Plaintiff Jason Stolte ("Stolte") seeks damages for injuries he sustained in a motor vehicle accident on Interstate 65 in Autauga County, Alabama, from Defendants Davis Farms, Horn, Farm Master, and GEICO Insurance Company ("GEICO").
Stolte alleges that on January 6, 2006, he was driving on Interstate 65 in Autauga County when a tire and wheel, which had fallen from the eighteen wheeler truck Horn was driving, collided with Stolte's car. (Second Am. Compl. ¶ 7.) Stolte contends that Horn acted negligently or wantonly in causing the accident and that Horn's employer, Davis Farms, is vicariously liable. ( Id. ¶ 9.) Stolte contends that Farm Master is liable because it designed, manufactured, and sold the defective eighteen wheeler. ( Id. ¶ 10.) Finally, Stolte asserts that GEICO breached the terms of its insurance contract with him by failing to provide underinsured motorist benefits. ( Id. ¶ 12.)
There are two other pending lawsuits that arise out of Stolte's accident. In one, GEICO filed a subrogation lawsuit against Horn and David R. Davis ("Davis"), individually, in Autauga County Circuit Court. GEICO seeks to recover from Horn and Davis payments it made to Stolte for "med pay" coverage, lost wages, and property damage. In the other, Carolina Casualty Insurance filed a lawsuit in Wabash Superior Court in Indiana as the subrogee of Davis Farms seeking $7,548.00 from Farm Master.
On June 13, 2007, Stolte filed his complaint (Doc. # 1) in this action against Davis Farms and Horn. On July 10, 2007, Davis Farms and Horn filed a motion to dismiss (Doc. # 5) for failure to state a claim pursuant to Rule 12(b)(6) and for failure to join a necessary party pursuant to Rule 12(b)(7) because Farm Master was not included in the complaint. Davis Farms and Horn also objected to Stolte prosecuting simultaneous actions in federal and state court because GEICO sued them in state court as Stolte's subrogee. On October 9, 2007, this court granted Stolte leave to file an amended complaint that added Farm Master as a party and denied Davis Farms and Horn's motion to dismiss to the extent dismissal was sought under Fed.R.Civ.P. 12(b)(7). (Doc. # 12.) On October 11, 2007, Davis Farms and Horn filed another motion to dismiss (Doc. # 14) raising the same issues — dismissal for failure to state a claim and because Stolte was prosecuting simultaneous actions in state and federal court. On November 6, 2007, Farm Master filed a motion to dismiss (Doc. # 18) under 28 U.S.C. § 1404. On December 19, 2007, Stolte filed a Second Amended Complaint (Doc. # 27), which added GEICO as a party. GEICO filed its answer on January 18, 2008.
II. DISCUSSION
A. Horn and Davis Farms's Motions to Dismiss
Horn and Davis Farms seek dismissal on two grounds: Rule 12(b)(6) and because Stolte is prosecuting simultaneous actions. Dismissal is not warranted on either ground.
Horn and Davis Farms assert that Stolte has failed to state a claim against them, but they fail to present any reasoning to support their contention. A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint against the legal standard set forth in Rule 8: "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). A complaint "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, ___ U.S. ___, 127 S. Ct. 1955, 1965 (2007). Factual allegations in a complaint need not be detailed but "must 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 1964-65; see also Hill v. White, 321 F.3d 1334 (11th Cir. 2003) (stating that the court accepts the allegations in the complaint as true and construes them in the light most favorable to the plaintiff).
Here, Stolte has stated a claim because he has alleged that Horn and Davis Farms acted negligently or wantonly in causing his injuries when a tire and wheel flew off the truck Horn was driving. The court finds these allegations sufficient to state a claim for negligence or wantonness, especially since Horn and Davis Farms have put forth no specific arguments against Stolte's claims.
Horn and Davis Farms argue in the alternative that Stolte's claims should be dismissed because GEICO has already filed suit against them in state court as Stolte's subrogee and Stolte cannot prosecute simultaneous actions involving the same claim. The court construes this argument as a motion for dismissal pursuant to the Alabama Abatement Statute, which provides that "[n]o plaintiff is entitled to prosecute two actions in the courts of this state at the same time for the same cause and against the same party." Ala. Code § 6-5-440.
Stolte's complaint is not due to be dismissed because he is not prosecuting simultaneous actions. Alabama courts have found this statute requires the parties in the two suits to be identical. See Redstone Land Dev. Co. v. Boatwright, 209 So. 2d 221, 223 (Ala.Ct.App. 1968). The parties in this case and in the Autauga County case are not identical. GEICO is the plaintiff in the state case, and Stolte is the plaintiff here. While GEICO is suing as Stolte's subrogee in the state action, GEICO and Stolte are not identical. While the court is not aware of any Alabama cases analyzing whether a person and his subrogee are identical parties under § 6-5-440, a Georgia court has addressed this issue. See Janet Parker, Inc. v. Floyd, 603 S.E. 2d 485 (Ga.Ct.App. 2004). Analyzing a similar statute, the Georgia court found that a plaintiff is not prosecuting simultaneous actions when he filed a lawsuit after his subrogees had filed suit. Id. at 487. The Georgia court noted that the parties were not identical because the subrogees "did not file their suit in [the insured's] name or seek to recover all of his damages." Id. Moreover, GEICO sued Horn and Davis individually, whereas Stolte's claims are against Horn and Davis Farms.
In addition to not being identical, GEICO and Stolte are seeking to recover different damages in their actions. In the Autauga County case, GEICO is seeking to recover payments it made to Stolte for "med pay" coverage, property damage, and lost wages. In this case, Stolte is suing to recover personal injury tort damages.
Accordingly, the court concludes that Stolte is not prosecuting simultaneous actions and that Horn and Davis Farms's motions to dismiss are due to be denied.
B. Farm Master's Motion to Dismiss
Farm Master seeks dismissal of the complaint pursuant to 28 U.S.C. § 1404 with leave to refile in the Superior Court of Wabash County, Indiana. See 28 U.S.C. § 1404 ("[A] district court may transfer any civil action to any other district court or division where it might have been brought." (emphasis added)). Farm Master asks this court to dismiss the action so that it may be refiled in state court. What Farm Master asks this court to do is procedurally improper under § 1404 because that statute allows a district court to transfer a case to another federal district court — not dismiss a case with leave to refile in state court. Accordingly, Farm Master's motion to dismiss is due to be denied.
III. CONCLUSION
Accordingly, it is ORDERED that1. Davis Farms and Horn's motions to dismiss (Docs. # 5 # 14) are DENIED;
2. Farm Master's motion to dismiss (Doc. # 18) is DENIED;
3. Farm Master is ORDERED to file an answer to Stolte's complaint on or before May 5, 2008.
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