CSX Transp., Inc. v. Benore

• Citation: 154 F.Supp.3d 541
• Decision Date: 30 December 2015
• Docket Number: Case No. 15-11575
• Parties: CSX Transportation, Inc., Plaintiff, v. Craig S. Benore, et al., Defendants.
• Court: U.S. District Court — Eastern District of Michigan

154 F.Supp.3d 541

CSX Transportation, Inc., Plaintiff,

v.Craig S. Benore, et al., Defendants.

Case No. 15-11575

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

Signed December 30, 2015

Christopher J. Merrick, Paul D. Keenan, Keenan Cohen and Howard P.C., Jenkintown, PA, Joseph J. McDonnell, Durkin McDonnell, P.C., Detroit, MI, for Plaintiff.

Deborah A. Hebert, Collins, Einhorn, Southfield, MI, for Defendants.

OPINION AND ORDER (1) GRANTING DEFENDANTS' MOTION TO DISMISS AS TO COUNTS I AND III (ECF NO. 10); (2) GRANTING PLAINTIFF'S MOTION TO STRIKE DEFENDANT'S SUR-REPLY (ECF NO. 24); (3) DENYING PLAINTIFF'S MOTION FOR LEAVE TO FILE A SUR-REPLY (ECF NO. 25); AND (4) GRANTING PLAINTIFF'S MOTION TO AMEND AS TO COUNT II (ECF NO. 20)

PAUL D. BORMAN

, UNITED STATES DISTRICT JUDGE

Plaintiff CSX Transportation, Inc. (“Plaintiff”) filed its complaint against Defendants Craig S. Benore, Dorothy J. Benore, Larry Benore & Son Farms & Trucking¹ , Mark A. LaPointe, and Westfield Insurance Company (“Defendants”) on May 1, 2015 based on complete diversity between the parties. (ECF No. 1, Compl.). On May 26, 2015, Defendants filed the current motion to dismiss based on Federal Rule of Civil Procedure 12(b)(6)

. (ECF No. 10). Plaintiff filed a response on July 10, 2015 pursuant to a stipulated order allowing an extension of time. (ECF Nos. 15, 16). Then, on July 24, 2015, Defendants filed their reply. (ECF No. 17).

A hearing on the motion to dismiss was held on September 2, 2015. Shortly thereafter, on September 11, 2015, Plaintiff filed a Motion for Leave to Amend its Complaint. (ECF No. 20). Defendants filed a response on September 25, 2015 (ECF No. 21), and Plaintiff then filed a reply (ECF No. 22).

On October 21, 2015, Defendants filed a Sur-Reply to Plaintiff's Motion to Amend and Supplemental Brief in support of the Response to the Motion to Dismiss (ECF No. 23). Thereafter, on October 23, 2015, Plaintiff filed a Motion to Strike the Sur-Reply (ECF No. 24).

On November 4, 2015, Defendants filed a “Motion to File a Sur-Reply and Supplemental brief and Response to in opposition to CSX's Motion to Strike” and “acknowledg[ed] that their Sur-Reply/Supplemental brief should have been accompanied by a motion seeking this Court's leave to file.” (ECF No. 25, at 1). On November 17, 2015, Plaintiff filed a “Response in Opposition to Defendants' Combined Motion to File Sur-Reply/Supplemental Brief and Response in Opposition to CSX's Motion to Strike” which incorporated the arguments it previously set forth in its Motion to Strike. (ECF No. 26).

For the following reasons, the Court will grant Defendants' motion to dismiss as to Counts I and III. The Court will also grant Plaintiff's motion to amend Count II such that the only remaining claim in this action is Count II against Defendants Mark LaPointe, Craig S. Benore, Dorothy J. Benore, and Larry Benore & Son Farms & Trucking. Additionally, the Court will grant Plaintiff's motion to strike Defendants' sur-reply and deny Defendants' motion for leave to file a sur-reply.

I. BACKGROUND

Plaintiff alleges that on November 24, 2013, Defendant Mark A. LaPointe (“LaPointe”) was operating a tractor trailer truck belonging to Defendant Larry Benore & Son Farms & Trucking (“LBSFT”). (Compl. at ¶¶ 17-18). Defendants Craig Benore and Dorothy Benore are the sole registered owners of the defendant business LBSFT. (Id . at ¶¶ 6-7).

On November 24, 2013, Plaintiff's train, identified as Q15024, was traveling northbound on CSX's right-of-way in Monroe County, Michigan. (Id . at ¶ 15). While train Q15024 was approaching the intersection of County Road 151 (also identified as Lakeside Road and Luna Pier Road) and the railroad tracks, a different train was stopped on the southbound tracks within that same crossing. (Id . at ¶ 16). Meanwhile, LaPointe was approaching the railroad crossing at County Road 151 from the west. (Id . at ¶ 17). LaPointe then drove his tractor trailer truck around activated railroad signals, gates, and published warnings at the above mentioned crossing and into the direct path of train Q15024 as it traveled northbound and caused Q15024 to collide with the passenger side of Defendant LBSFT's tractor trailer truck. (Id . at ¶¶ 19-20).

Because of the impact, the load of kernel corn being hauled by Defendant LaPoint then spilled over Plaintiff's right-of-way and Plaintiff's roadway, signals, trains, and rail cars all sustained damage. (Id . at ¶ 21). Additionally, Plaintiff alleges it suffered damages because of the delay costs associated with the accident. (Compl. at ¶ 22). Plaintiff claims it has sustained damages in the amount of $147,064.96. (Id . at ¶ 24). Plaintiff asserts that “[d]espite repeated demands, [Defendants] have not paid the amount owed to CSX for the damage sustained” from the accident. (Id . at ¶¶ 25, 64).

Plaintiff's original complaint sets forth claims of negligence and gross negligence against Defendants LBSFT, Craig and Dorothy Benore, and LaPointe. (Id . at ¶¶ 26-55). In the alternative, Plaintiff also sets forth a claim against Defendant Westfield Insurance Company (“Westfield”) pursuant to the Michigan No-Fault Insurance Act, MICH. COMP. LAWS § 500.3101 et seq .

, (the “Act”). (Id . at ¶¶ 56-66). Plaintiff alleges that it presented its claim for damages by invoice to Defendant Westfield on September 12, 2014 within the applicable one-year statute of limitations. (Id . at ¶¶ 57-58). Plaintiff claims that Defendant Westfield is liable for the property damage caused to Plaintiff because Defendant Westfield is Defendants Craig and Dorothy Benore, LBSFT, and LaPointe's insurer. (Id . at ¶ 60). At some point in time, Defendant Westfield sent a payment to Plaintiff in the amount of $91,813.90 but then cancelled the payment. (Compl. at ¶¶ 61, 63). Plaintiff asserts that Defendant Westfield has never paid the amount owed for the property damages it sustained. (Id . at ¶ 64).

Plaintiff also now seeks to amend its claim of “gross negligence” to make clear this claim encompasses “intentionally caused damage.” (Pl.'s Br., Ex. A, Proposed Amended Complaint, at ¶¶ 42-53). More specifically, Plaintiff alleges that LaPointe was acting in the scope and course of his employment when he “deliberately ignored the signals, gates, and warnings posted at the Crossing when he drove LBSFT Truck onto the CSX right-of-way.” (Id . at ¶ 43). Further, Plaintiff claims that LaPointe “intended to cause the collision between LBSFT Truck and the Northbound Train and the resulting damage sustained by CSX.” (Id . ¶ 44). Plaintiff does not seek to amend Counts I and III of his original complaint.

II. STANDARDS OF REVIEW

Fed. R. Civ. P. 12(b)(6)

allows for the dismissal of a case where the complaint fails to state a claim upon which relief can be granted. 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.” Direct

v

, Inc. v. Treesh , 487 F.3d 471, 476 (6th Cir.2007). But the court “need not accept as true legal conclusions or unwarranted factual inferences.” Id . (quoting Gregory v. Shelby County , 220 F.3d 433, 446 (6th Cir.2000) ). “[L]egal conclusions masquerading as factual allegations will not suffice.” Eidson v. State of Te

nn

. Dep't of Children's Servs. , 510 F.3d 631, 634 (6th Cir.2007).

The Supreme Court explained that “a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level....” Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)

(internal citations omitted). Dismissal is only appropriate if the plaintiff has failed to offer sufficient factual allegations that make the asserted claim plausible on its face. Id. at 570, 127 S.Ct. 1955. In Ashcroft v. Iqbal , 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) the Supreme Court clarified the concept of “plausibility” stating:

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” [Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 556, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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. Id. at 556, 127 S.Ct. 1955. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ibid . Where a complaint pleads facts that are “merely consistent with” a defendant's liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’ ” Id. , at 557, 127 S.Ct. 1955 (brackets omitted).

Id. at 678, 129 S.Ct. 1937

. A plaintiff's factual allegations, while “assumed to be true, must do more than create speculation or suspicion of a legally cognizable cause of action; they must show entitlement to relief.” LULAC v. Bredesen , 500 F.3d 523, 527 (6th Cir.2007) (citing Twombly , 550 U.S. at 555–556, 127 S.Ct. 1955 ). Thus, “[t]o state a valid claim, a complaint must contain either direct or inferential allegations respecting all the material elements to sustain recovery under some viable legal theory.” Bredesen , 500 F.3d at 527 (citing Twombly , 550 U.S. at 562, 127 S.Ct. 1955 ).

Federal Rule of Civil Procedure 15(a)

states that leave to amend is “freely” granted “when justice so requires”. Fed. R. Civ. P. 15(a). However, the Court need not give leave to amend when the proposed amendment would be futile, result in undue delay, or is brought in bad faith. See Murphy v. Grenier , 406 Fed.Appx. 972, 977 (...