Dodd v. AA & S Corporation, et al

Motion to Dismiss for Failure to State a Claim . Oral Argument requested.

D. Or.March 14, 2017

Page 1 - Defendants United Vanlines, LLC, Hilldrup Companies, Inc., and Lonnie Orf’s Motion to Dismiss 2762158 Cosgrave Vergeer Kester LLP Attorneys 888 SW Fifth Avenue, Suite 500 Portland, Oregon 97204 Telephone: (503) 323-9000 Facsimile: (503) 323-9019 Derek J. Ashton, OSB No. 871552 Internet e-mail: dashton@cosgravelaw.com Lisa Amatangel, OSB No. 141347 Internet e-mail: lamatangel@cosgravelaw.com COSGRAVE VERGEER KESTER LLP 888 SW Fifth Avenue, Suite 500 Portland, Oregon 97204 Telephone: (503) 323-9000 Facsimile: (503) 323-9019 Attorneys for Defendants United Vanlines, LLC, Hilldrup Companies, Inc., and Lonnie Orf UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION TIFFANY DODD, Plaintiff, v. AA & S CORPORATION, d/b/a A & R TRANSPORT, a Utah Corporation, JASON ATWOOD and JANE DOE ATWOOD, UNITED VANLINES, LLC, a Missouri Limited Liability Corporation, HILLDRUP COMPANIES, INC. d/b/a HILDRUP MOVING & STORAGE, a Virginia Corporation, and LONNIE ORF and JANE DOE ORF, Defendants. Case No. 3:17-cv-00246-AC Defendants United Vanlines, LLC, Hilldrup Companies, Inc., and Lonnie Orf’s Motion to Dismiss (Oral Argument Requested) LR 7-1(a) Certification Counsel for defendants United Vanlines, LLC (United), Hilldrup Companies, Inc. (Hilldrup), and Lonnie Orf (Orf) (collectively, the Hilldrup defendants), certifies that they Case 3:17-cv-00246-AC Document 8 Filed 03/14/17 Page 1 of 6 Page 2 - Defendants United Vanlines, LLC, Hilldrup Companies, Inc., and Lonnie Orf’s Motion to Dismiss 2762158 Cosgrave Vergeer Kester LLP Attorneys 888 SW Fifth Avenue, Suite 500 Portland, Oregon 97204 Telephone: (503) 323-9000 Facsimile: (503) 323-9019 conferred by telephone with plaintiff’s counsel in an attempt to resolve the issues in dispute in this motion but were unable to resolve them. Motion Pursuant to Fed. R. Civ. P. 12(b)(6), the Hilldrup defendants move to dismiss plaintiff’s complaint for failure to state a claim upon which relief can be granted. Introduction This personal injury action arises from a multi-vehicle rear-end accident on Interstate 84 near Pendleton, Oregon, during a dust storm. Plaintiff claims that, after the car in front of her stopped, she slowed and then stopped her car and then was struck from behind, which caused injuries. Plaintiff seeks to hold two truck drivers (Orf and defendant Jason Atwood) and their alleged respective employers liable for her injuries, claiming (1) “Negligence and Reckless Disregard,” and (2) “Negligent Hiring, Retention Entrustment, Training and Supervision.” Dkt. #1, Complaint. But other than a general allegation that Orf’s truck was “involved” in the incident, id. ¶ 1.13, plaintiff does not allege any facts suggesting misconduct by the Hilldrup defendants. Indeed, plaintiff affirmatively alleges that the physical evidence “establishes” that it was defendant Atwood’s truck - not Orf’s - that hit the back of her car. The court thus should dismiss plaintiff’s complaint against the Hilldrup defendants for failure to allege sufficient facts to state a claim for relief. Legal Standard A well-pleaded complaint requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To survive a motion to dismiss for failure to state a claim, “a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to Case 3:17-cv-00246-AC Document 8 Filed 03/14/17 Page 2 of 6 Page 3 - Defendants United Vanlines, LLC, Hilldrup Companies, Inc., and Lonnie Orf’s Motion to Dismiss 2762158 Cosgrave Vergeer Kester LLP Attorneys 888 SW Fifth Avenue, Suite 500 Portland, Oregon 97204 Telephone: (503) 323-9000 Facsimile: (503) 323-9019 draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 566 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955 (2007) (internal quotations omitted). Where the “well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not ‘show[n]’ - ‘that the pleader is entitled to relief.’” Ashcroft, 129 S. Ct. at 1950 (quoting Fed. R. Civ. P. 8(a)(2)). A complaint that merely states “labels and conclusions” or “a formulaic recitation of the elements of a cause of action” is insufficient. Iqbal, 129 S. Ct. at 1949. So, too, is a claim that merely tenders “naked assertions devoid of further factual enhancement.” Id. (internal quotations omitted). A complaint that pleads facts merely consistent with a defendant’s liability “stops short of the line between possibility and [the requisite] plausibility of entitlement to relief” to survive a motion to dismiss. Id. (internal quotations omitted). Discussion As relevant to the claims against the Hilldrup defendants, plaintiff alleges: At the time of the incident, Orf was driving a semi-truck and trailer owned by his employer, United and/or Hilldrup (Complaint at ¶¶ 1.11-1.13, 3.5, 3.7-3.8, 5.10-5.11); At the time of the incident, plaintiff was driving eastbound on I-84 when a dust storm occurred that caused limited visibility. When the car ahead of her stopped, plaintiff slowed and then stopped her car and was struck from behind (id. at ¶¶ 3.9-3.11, 3.21-3.22); An Oregon state trooper reported that Orf’s truck and trailer hit the rear end of plaintiff’s car, pushing it into the car in front of her (id. at ¶¶ 3.12(f),(g) 3.15); Case 3:17-cv-00246-AC Document 8 Filed 03/14/17 Page 3 of 6 Page 4 - Defendants United Vanlines, LLC, Hilldrup Companies, Inc., and Lonnie Orf’s Motion to Dismiss 2762158 Cosgrave Vergeer Kester LLP Attorneys 888 SW Fifth Avenue, Suite 500 Portland, Oregon 97204 Telephone: (503) 323-9000 Facsimile: (503) 323-9019 Notwithstanding the trooper’s report, an inspection of plaintiff’s car “establishes that the license plate from * * * Atwood’s semi-truck was imprinted into the rear bumper of [p]laintiff Dodd’s car” (id. at ¶ 3.15) (emphasis added); A subsequent inspection of United/Hilldrup’s semi-truck revealed visible damage to its front end (id. at ¶ 3.17). At the time of incident, Orf was operating a semi-truck and trailer with negligent disregard for plaintiff’s safety and the safety of others, with disregard for the limitations and dangers caused by the dust storm, and in violation of (unidentified) federal motor carrier safety regulations and industry standards, which proximately caused plaintiff’s injuries (id. at ¶¶ 4.10-.14); United/Hilldrup acted tortiously by hiring and retaining Orf as a commercial driver, failing to properly supervise and train Orf, failing to have proper guidelines and rules in place, entrusting Orf with commercial vehicles, failing to conduct background and qualification checks of Orf, and failing to ensure Orf’s mental and physical fitness to operate a commercial vehicle, which proximately caused plaintiff’s injuries (id. at ¶¶ 5.12-.18).1 Under Iqbal and Twombly, those allegations are legally insufficient to state a facially plausible claim for relief against the Hilldrup defendants. Most notably, plaintiff does not allege any facts regarding what, if anything, Orf did or did not do while operating his truck, much less anything that caused plaintiff’s claimed harm. Nor does 1 The complaint also includes factual allegations that are not relevant to any of plaintiff’s claims - see, e.g., Complaint at ¶¶ 3.16-17 (regarding United/Hilldrup’s post- accident sale of its semi-truck) - and other legal conclusions. See, e.g., id. at ¶ 4.1 (commercial truck drivers are “held to a higher standard of care” than other motorists because they operate and potentially dangerous pieces of equipment). Case 3:17-cv-00246-AC Document 8 Filed 03/14/17 Page 4 of 6 Page 5 - Defendants United Vanlines, LLC, Hilldrup Companies, Inc., and Lonnie Orf’s Motion to Dismiss 2762158 Cosgrave Vergeer Kester LLP Attorneys 888 SW Fifth Avenue, Suite 500 Portland, Oregon 97204 Telephone: (503) 323-9000 Facsimile: (503) 323-9019 plaintiff allege any facts regarding what, if anything, United/Hilldrup did or did not do with respect to its hiring, retention, entrustment, training, and supervision of Orf that resulted in Orf causing her harm. Instead, the complaint consists of legal conclusions devoid of any factual support that would permit a court to reasonably infer that the Hilldrup defendants are liable for plaintiff’s claimed harm. The complaint thus fails to give the Hilldrup defendants proper notice of the bases of plaintiff’s claims and should be dismissed under Fed. R. Civ. P. 12(b)(6). Conclusion The court should grant the Hilldrup defendants’ motion to dismiss. DATED: March 14, 2017 COSGRAVE VERGEER KESTER LLP s/ Lisa Amatangel Derek J. Ashton, OSB No. 871552 Lisa Amatangel, OSB No. 141347 Telephone: (503) 323-9000 Fax: (503) 323-9019 E-mail: dashton@cosgravelaw.com lamatangel@cosgravelaw.com Attorneys for Defendants United Vanlines, LLC, Hilldrup Companies, Inc., and Lonnie Orf Case 3:17-cv-00246-AC Document 8 Filed 03/14/17 Page 5 of 6 Page 1 - Certificate of Service 2762158 Cosgrave Vergeer Kester LLP Attorneys 888 SW Fifth Avenue, Suite 500 Portland, Oregon 97204 Telephone: (503) 323-9000 Facsimile: (503) 323-9019 CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the foregoing Defendants United Vanlines, LLC, Hilldrup Companies, Inc., and Lonnie Orf’s Motion to Dismiss on the date indicated below by: mail with postage prepaid, deposited in the US mail at Portland, Oregon, hand delivery, facsimile transmission, overnight delivery, electronic filing notification. If served by facsimile transmission, attached to this certificate is the printed confirmation of receipt of the document(s) generated by the transmitting machine. I further certify that said copy was placed in a sealed envelope delivered as indicated above and addressed to said attorney(s) at the address(es) listed below: Kevin Coluccio Peter J. Hess Hess Law Office PLLC 415 N 2nd Ave Walla Walla, WA 99362 Of Attorneys for Claimant Tiffany Jean Dodd Kaitlyn Roach Graham Lundberg Peschel, P.S., Inc. 601 W. Main Avenue, Suite 305 Spokane, WA 99201 Of Attorneys for Defendants Redd Robert W. Thompson Snow Christensen & Martineau 10 Exchange Place, 11th Fl. PO Box 45000 Salt Lake City, UT 84145 Of Attorneys for Defendants A&R Transport and Jason Atwood Danny L. Hitt Hitt Hiller Monfils Williams LLP 411 SW Second Avenue, Suite 400 Portland, OR 97204 Of Attorneys for AA&S Corporation/A&R Transport DATED: March 14, 2017 s/ Lisa Amatangel Lisa Amatangel Case 3:17-cv-00246-AC Document 8 Filed 03/14/17 Page 6 of 6