Solek v. K&B Transp.

• Decision Date: 21 September 2021
• Docket Number: 21-cv-10442
• Court: U.S. District Court — Eastern District of Michigan
• Parties: AMY SOLEK, PERSONAL REPRESENTATIVE OF THE ESTATE OF EMILY VICTORIA SOLEK, DECEASED, AMY SOLEK and BRENT SOLEK, INDIVIDUALLY, Plaintiffs, v. K &B TRANSPORTATION, INC., an Iowa corporation, BROCK ACKERMAN, KORY ACKERMAN, and JOHNNY STEWART, Defendants.

AMY SOLEK, PERSONAL REPRESENTATIVE OF THE ESTATE OF EMILY VICTORIA SOLEK, DECEASED, AMY SOLEK and BRENT SOLEK, INDIVIDUALLY, Plaintiffs, v. K &B TRANSPORTATION, INC., an Iowa corporation, BROCK ACKERMAN, KORY ACKERMAN, and JOHNNY STEWART, Defendants.

No. 21-cv-10442

United States District Court, E.D. Michigan, Southern Division

September 21, 2021

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS PURSUANT TO FED. R. CIV. P 12(b)(6) (ECF NO. 30)

Paul D. Borman, United States District Judge

This case arises from a tragic automobile accident that occurred at approximately 9:30 a.m. on Friday, June 19, 2020, which resulted in the death of 21-year-old University of Michigan student Emily Solek when the vehicle she was driving was struck from behind by a semi-truck, crushing her vehicle between the semi-truck and a cargo van in front of her and causing her vehicle to catch fire. Ms. Solek's parents individually and as the personal representative of the Estate of Emily Solek, have filed this wrongful death suit against the driver of the semi-truck that struck Ms. Solek's vehicle, as well as his employer/owner of the semi-truck, and two individual officers/owners of the company. Now before the Court is Defendants' Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) (ECF No. 30). The motion has been fully briefed, and the Court held a hearing on this motion on Friday, September 10, 2021. For the reasons that follow, the Court GRANTS IN PART and DENIES IN PART Defendants' motion.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Statement of Facts^[1]

According to Plaintiffs' First Amended Complaint, on June 19, 2020, Emily Solek, a 21-year-old student at the University of Michigan, was driving from Ann Arbor to her home in Rochester, Michigan. (ECF No. 21, Plaintiffs' First Amended Complaint (FAC), ¶¶ 8, 74, PageID.353, 362.) While Emily was driving east on Michigan highway M-14, traffic slowed due to an exit closure, and she slowed her vehicle along with other traffic. (Id. ¶ 72, PageID.361.) Around that same time, Defendant Johnny Stewart, a truck driver employed by Defendant K&B Transportation, Inc. (K&B), was also driving eastbound on M-14, in a 2013 Freightliner semi-truck owned by K&B. (Id. ¶¶ 70-71, PageID.361.) Stewart failed to keep his semi-truck under control in the slowing traffic and drove at or near full speed into the rear of Emily's vehicle, a 2017 Jeep Grand Cherokee, resulting in Emily's death. (Id. ¶ 73, PageID.361.) Emily's vehicle was crushed between the Freightliner and a cargo van ahead of her, and as a result of the collision, both the K&B truck and the Solek vehicle caught fire. (Id. ¶ 75, PageID.362.) Plaintiffs allege that the impact “fractured [Emily's] skull, cervical spine, and ribs, amputated her right leg above the knee, and caused severe, permanent, and fatal internal injuries” and that “Emily was consumed by the fire, as she was unable to escape or be retrieved from her burning vehicle.” (Id. ¶ 76, PageID.362.)

B. Procedural History

On February 26, 2021, Emily Solek's parents, Amy Solek and Brent Solek, individually and as personal representative of Emily Solek's Estate, brought this action against four Defendants: (1) Johnny Stewart, the truck driver; (2) K&B Transportation, Inc., the owner of the semi-truck and Stewart's employer; (3) Brock Ackerman, the registered agent of K&B and also its Secretary, Treasurer and Director; and, (4) Kory Ackerman, President and Director of K&B. (ECF No. 1.)

In lieu of an answer, on April 23, 2021, Defendants filed a motion to dismiss Plaintiffs' Complaint, and a motion to strike Plaintiffs' complaint. (ECF Nos. 16, 18.) On May 7, 2021, Plaintiffs responded to the motion to dismiss by filing a First Amended Complaint (ECF No. 21), and they also filed a response to the motion to strike (ECF No. 22). Defendants subsequently withdrew their motion to dismiss and motion to strike. (ECF No. 24.)

Plaintiffs' First Amended Complaint, brought by the same Plaintiffs and against the same Defendants as the original Complaint, contains three counts:

(1) Count I - Liability of K&B Transportation, Brock Ackerman, Kory Ackerman and Stewart to Plaintiff, the Estate of Emily Victoria Solek, deceased (a negligence claim);

(2) Count II - Liability of K&B Transportation, Brock Ackerman, Kory Ackerman and Stewart to Plaintiffs, Amy and Brent Solek, for Negligent Infliction of Emotional Distress (Bystander Liability); and

(3) Count III - Liability of Brock and Kory Ackerman to Amy and Brent Solek for Intentional Infliction of Emotional Distress.

(FAC.)

On May 21, 2021, Defendants filed the instant Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6). (ECF No. 30, Defs.' Mot.) Defendants argue that Plaintiffs fail to state a negligence claim against Defendants Brock and Kory Ackerman personally, and have failed to plead facts sufficient to pierce the corporate veil to reach the Ackerman Defendants. Defendants contend that the FAC attributes allegedly tortious conduct against K&B only, not Brock and Kory Ackerman as individuals. Defendants further argue that Plaintiffs' FAC fails to state a claim for negligent or intentional infliction of emotional distress. Defendants contend that the FAC as a whole should be dismissed with prejudice, or, at a minimum, that the FAC should be narrowed to Count I against only Defendants Stewart and K&B.

Plaintiffs filed a Response in opposition to Defendants' motion to dismiss. (ECF No. 35, Pls.' Resp.) Plaintiffs argue that they have sufficiently alleged that the Ackerman Defendants personally participated in the alleged tortious acts, and that it is premature to address arguments regarding piercing the corporate veil at this stage of the litigation, before any discovery has been conducted. Plaintiffs continue that, in any event, they have sufficiently pleaded allegations that support piercing the corporate veil with respect to the Ackerman Defendants. Plaintiffs further argue that they have sufficiently pleaded claims of negligent and intentional infliction of emotional distress.

Defendants filed a Reply brief in support of their motion to dismiss. (ECF No. 37, Defs.' Reply.) Defendants assert that their motion to dismiss is not “premature, ” as Plaintiffs allege. Defendants contend that the Ackerman Defendants, as officers and agents of K&B, cannot be held personally liable to Plaintiffs for K&B's business decisions, as a corporation can only act through its agents. Defendants argue that Plaintiffs' negligence claims fails because they have failed to plead any actionable duty owed by the Ackerman Defendants to Plaintiffs, and that Plaintiffs' negligent and intentional infliction of emotional distress claims fail as a matter of law.^[2]

II. LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(6) allows for the dismissal of a case where the complaint fails to state a claim upon which relief can be granted. To state a claim, a complaint must provide a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “[T]he complaint ‘does not need detailed factual allegations' but should identify ‘more than labels and conclusions.'” Casias v. Wal-Mart Stores, Inc., 695 F.3d 428, 435 (6th Cir. 2012) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

When reviewing a motion to dismiss under Rule 12(b)(6), a court must “construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff.” Handy-Clay v. City of Memphis, 695 F.3d 531, 538 (6th Cir. 2012). The court “need not accept as true a legal conclusion couched as a factual allegation, or an unwarranted factual inference.” Id. at 539 (internal citations and quotation marks omitted); see also Total Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008) (citing Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987)). In other words, a plaintiff must provide more than a “formulaic recitation of the elements of a cause of action” and his or her “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555-56. The Sixth Circuit has explained that “[t]o survive a motion to dismiss, a litigant must allege enough facts to make it plausible that the defendant bears legal liability. The facts cannot make it merely possible that the defendant is liable; they must make it plausible.” Agema v. City of Allegan, 826 F.3d 326, 331 (6th Cir. 2016) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). It is the defendant who “has the burden of showing that the plaintiff has failed to state a claim for relief.” Wesley v. Campbell, 779 F.3d 421, 428 (6th Cir. 2015).

In ruling on a motion to dismiss, the Court may consider the complaint as well as: (1) documents that are referenced in the plaintiff's complaint and that are central to plaintiff's claims; (2) matters of which a court may take judicial notice; (3) documents that are a matter of public record; and (4) letters that constitute decisions of a governmental agency. Thomas v. Noder-Love, 621 Fed.Appx. 825, 829 (6th Cir. 2015) (“Documents outside of the pleadings that may typically be incorporated without converting the motion to dismiss into a motion for summary judgment are public records, matters of which a court may take judicial notice, and letter decisions of governmental agencies.”) (internal quotation marks and citations omitted); Armengau v. Cline, 7 Fed.Appx. 336, 344 (6th Cir. 2001) (“We have taken a liberal view of what matters fall within the pleadings for purposes of Rule 12(b)(6). If referred to in a complaint and central to the claim, documents...