Air Liquide Mexico S. De R.L. De C.V. v. Talleres Willie, Inc.
| Decision Date | 15 December 2015 |
| Docket Number | CIVIL ACTION NO. H-14-211 |
| Parties | AIR LIQUIDE MEXICO S. de R.L. de C.V. and AIR LIQUIDE PROCESS AND CONSTRUCTION, INC., Plaintiffs, v. TALLERES WILLIE, INC., BERNARDO AINSLIE, FELIX NINO LEIJA, TRAILBLAZER PILOT CAR SERVICES, LLC, CLAUDE JOSEPH KIMMEL d/b/a FREEDOM PILOT CAR SERVICES, CHARLES VAN KIRK d/b/a SLINGSHOT PILOT ESCORT SERVICES, WHEELING EQUIPMENT COMPANY, INC., GEORGE ORTIZ, and CONTRACTORS CARGO COMPANY, Defendants. |
| Court | U.S. District Court — Southern District of Texas |
Pending is Defendants Charles Van Kirk d/b/a Slingshot Pilot Car Services and Claude Joseph Kimmel d/b/a Freedom Pilot Car's Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) (Document No. 152). After carefully considering the motion, response, reply, and the applicable law, the Court concludes as follows.
The background for this action brought by Plaintiffs Air Liquide Mexico S. de R.L. de C.V. ("ALM") and Air Liquide Process and Construction, Inc. ("ALPC") (collectively "Plaintiffs") is recited in the Court's Orders signed February 18, 2015 (Document No. 75) and July 31, 2015 (Document No. 130), and need not be repeated here. Suffice it to say that after the Fifth Circuit issued its opinion in In re Wheeler, 612 Fed. App'x 763, 768 n.4 (5th Cir. 2015) ( that a pilot car does not constitute a carrier under the Carmack Amendment), the Court vacated its prior orders that dismissed Plaintiffs' state law claims against Defendants Charles Van Kirk d/b/a Slingshot Pilot Car Services ("Van Kirk"), Claude Joseph Kimmel d/b/a Freedom Pilot Car ("Kimmel") (collectively "Pilot Car Defendants"), and granted leave for Plaintiffs to file a Third Amended Complaint (Order dated August 27, 2015, Document No. 148).
The Pilot Car Defendants now move for partial dismissal of Plaintiffs' Third Amended Complaint with respect to (1) Plaintiffs' claim that the Pilot Car Defendants violated a statutory duty under Chapter 545 of the Texas Transportation Code (Count III) and (2) Plaintiffs' claim that Pilot Car Defendants engaged in a joint enterprise (Count VI).1
Rule 12(b)(6) provides for dismissal of an action for "failureto state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). When a district court reviews the sufficiency of a complaint before it receives any evidence either by affidavit or admission, its task is inevitably a limited one. See Scheuer v. Rhodes, 94 S. Ct. 1683, 1686 (1974). The issue is not whether the plaintiff ultimately will prevail, but whether the plaintiff is entitled to offer evidence to support the claims. Id.
In considering a motion to dismiss under Rule 12(b)(6), the district court must construe the allegations in the complaint favorably to the pleader and must accept as true all well-pleaded facts in the complaint. See Lowrey v. Tex. A&M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997). To survive dismissal, a complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007). "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." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). While a complaint "does not need detailed factual allegations . . . [the] allegations 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)." Twombly, 127 S. Ct. at 1964-65.
Pilot Car Defendants move to dismiss Plaintiffs' negligence claims premised on the allegation that "[Pilot Car] Defendants violated any statutory duty under Chapter 545 of the Texas Transportation Code."2 "The primary rule in statutory interpretation is that a court must look to the intent of the legislature and must construe the statute so as to give effect to that intent." CenterPoint Energy Hou. Elec. LLC v. Harris Cty. Toll Rd. Auth., 436 F.3d 541, 545 (5th Cir. 2006) (citing Union Bankers Ins. Co. v. Shelton, 889 S.W.2d 278, 280 (Tex. 1994)). "The Legislature's intent is determined from the plain and common meaning of the words used." St. Luke's Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex. 1997).
Chapter 545, which specifically defines the rules for the operation and movement of vehicles, is found in Subtitle C of Title 7 of the Transportation Code, which sets out the "Rules of the Road." At the outset of Chapter 545, the term "Operator" is defined to mean, "as used in reference to a vehicle, a person who drives or has physical control of a vehicle." TEX. TRANSP. CODE ANN. § 541.001 (emphasis added). Thus, the statute defines "operator" in the singular, implicitly recognizing that a vehicle has oneoperator at a time who "drives or has physical control" of the vehicle. Because they were driving or in physical control of their respective escort vehicles, each Pilot Car Defendant was an operator under this section. Concommitantly, neither Pilot Car Defendant was an operator of any vehicle other than his own or of the tractor pulling the trailer upon which the massive 60 feet long purification skid was being carried. In other words, neither Pilot Car Defendant was "driv[ing] or in physical control" of the tractor/trailer vehicle. Therefore, any statutory duty the Pilot Car Defendants owed by virtue of their status as operators under Chapter 545 arose and pertained only to the operation of their own escort vehicles.3
Plaintiffs allege that Pilot Car Defendants violated several sections under Chapter 545.4 In particular, Plaintiffs allege that the Pilot Car Defendants were statutorily obligated to notify therailroad because § 545.255 "requires one who transports 'heavy equipment' to notify the railroad prior to attempting to cross railroad tracks."5 While Plaintiffs are correct that § 545.255(b) imposes a notice requirement on the operator of the vehicle--this requirement is only imposed on those who operate:
TEX. TRANSP. CODE ANN. § 545.255(a).
Here, Plaintiffs allege that Felix Nino Leija was operating the vehicle transporting the skid, and Pilot Car Defendants were separately operating individual "escort vehicles" that proceeded in front of and behind the vehicle transporting the skid.6 Plaintiffs have not alleged that either Pilot Car Defendant was operating a vehicle described in § 545.255(a), and by its own terms § 545.255"applies only" to those specified vehicles. Thus, the Pilot Car Defendants did not have or violate a statutory duty under § 545.255, and Plaintiffs have failed to state a claim upon which relief can be granted under § 545.255(b).7
Plaintiffs' Third Amended Complaint also alleges negligence per se against the Pilot Car Defendants for violations of § 545.051(a), which requires an operator to "drive on the right half of the roadway"; § 545.056(a), which prohibits an operator from driving on the left side of the roadway "within 100 feet of an intersection or railroad grade crossing in a municipality"; and § 545.302(a)(8) and (9), which prohibit an operator from stopping, standing, or parking "on a railroad track" or "where an official sign prohibits stopping." Plaintiffs allege that the "load" on the lowboy trailer was stopped on the tracks and driven on the wrong side of the road in violation of these statutes,8 but Plaintiffs do not allege that either of the Pilot Car Defendants violated any ofthese statutes in the operation of its own escort vehicle. Again, Plaintiffs fail to state a claim upon which relief can be granted against the Pilot Car Defendants for any statutory violation under Chapter 545. The Pilot Car Defendants therefore are entitled to dismissal with prejudice of Count III of Plaintiffs' Third Amended Complaint, alleging negligence per se based on statutory violations.
Plaintiffs in Count VI of their Third Amended Complaint plead a joint enterprise theory against the Pilot Car Defendants and others to seek imposition of liability upon all. Pilot Car Defendants argue that Plaintiffs fail to allege facts necessary to support their joint enterprise claim.9 Plaintiffs respond that "analysis of whether a joint enterprise exists here is premature" because it is generally a question for the jury, and in any event they adequately pled their claim.10
"The theory of joint enterprise is to make each party thereto the agent of the other and thereby to hold each responsible for the negligent act of the other." Shoemaker v. Estate of Whistler, 513 S.W.2d 10, 14 (Tex. 1974). Texas courts adopted the definition of joint enterprise as stated in the Restatement (2d) of Torts:
(1) an agreement, express or implied, among the members of the group; (2) a common purpose to be carried out by the group; (3) a community of pecuniary interest in that purpose, among the members; and (4) an equal right to a voice in the direction of the enterprise, which gives an equal right of control.
Id. at 16-17 (quoting RESTATEMENT (2D) OF TORTS § 491, cmt. c (1965)).
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