Dixon v. Stone Truck Line, Inc.

• Decision Date: 23 November 2021
• Docket Number: 2:19-CV-000945-JCH-GJF
• Parties: WALTER N. DIXON, Plaintiff, v. STONE TRUCK LINE, INC., a foreign corporation, ISMAIL Y. TAWIL, RUSSELL STOVER CHOCOLATES, LLC, a foreign corporation, and RYAN TRANSPORTATION SERVICE, INC., Defendants.
• Court: U.S. District Court — District of New Mexico

WALTER N. DIXON, Plaintiff,
v.
STONE TRUCK LINE, INC., a foreign corporation, ISMAIL Y. TAWIL, RUSSELL STOVER CHOCOLATES, LLC, a foreign corporation, and RYAN TRANSPORTATION SERVICE, INC., Defendants.

No. 2:19-CV-000945-JCH-GJF

United States District Court, D. New Mexico

November 23, 2021

MEMORANDUM OPINION AND ORDER

Plaintiff Walter N. Dixon (“Dixon”) filed a Motion for Leave to File Amended Complaint and Reconsider its Order Dismissing Defendants Ryan Transportation Service, Inc. and Russell Stover Chocolates, LLC (Doc. 57) (ECF No. 69) on January 25, 2021. Plaintiff argues that the Court should permit him to add factual allegations against Defendants Ryan Transportation Service, Inc. (“Ryan”) and Defendant Russell Stover Chocolates, LLC (“Russell Stover”) based on evidence that he obtained in discovery that purportedly cure the deficiencies that resulted in the previous dismissal of claims against Ryan and Russell Stover. Plaintiff also argues that the Court may alternatively consider his motion as one to reconsider the Court's prior order of dismissal (ECF No. 57) under Rule 54(b). In further support of his motion for leave to file an amended complaint, Plaintiff subsequently filed on May 24, 2021, Plaintiff's Motion for Leave to File Supplemental Evidence in Support of Plaintiff's Motion for Leave to File Amended Complaint and Reconsider its Order Dismissing Defendants Ryan Transportation Service, Inc. and Russell Stover

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Chocolates, LLC (Doc. 69) (ECF No. 81). According to Plaintiff, he recently obtained additional evidence in discovery that supports his request to amend his complaint and asks the Court for leave to file the evidence and to consider it. Defendants Ryan and Russell Stover oppose both motions. The Court, having considered the motions, briefs, arguments, evidence, and applicable law, concludes that the motion for leave to file supplemental evidence should be granted only for a limited purpose, and that the motion for leave to file an amended complaint that alleges negligence claims against Ryan and Russell Stover should be granted in part and denied in part. The Court will permit Plaintiff to file his proposed amended complaint asserting negligence claims against Ryan and Russell Stover for direct and vicarious liability, but the Court will deny the motion to amend as to the joint liability theory of liability (Count V) and as to a statutory employer theory of liability against Russell Stover because of futility of amendment.

I. FACTUAL BACKGROUND

A. Introduction

According to Plaintiff's first amended complaint (“FAC”), on October 28, 2018, Plaintiff Walter N. Dixon was operating his motorcycle with the right-of-way in Deming, New Mexico, when a commercial semi-truck operated by Defendant Ismail Y. Tawil (“Tawil”), acting in the course of his employment with Defendant Stone Truck Line, Inc. (“Stone Truck”), failed to yield to Dixon, made an unsafe left turn, drove into Dixon's line of traffic, and collided with Dixon. (FAC ¶¶ 1-2, 25, ECF No. 20.) Stone Truck was the owner of the semi-truck driven by Tawil and was Tawil's statutory employer. (Id. ¶¶ 8, 58.) At the time, Tawil was pulling a trailer loaded with goods being shipped by Russell Stover. (Id. ¶ 27.) Ryan, a business that brokers the transportation and shipment of goods across the United States, arranged for the transportation of Russell Stover's goods by Stone Truck. (Id. ¶¶ 18-19.)

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B. Procedural History

Plaintiff filed suit against Tawil, Stone Truck, and Russell Stover for negligence on August 14, 2019 in state court. (Pl.'s Compl., ECF No. 1-2). After removal to federal court, on January 24, 2020, Plaintiff filed his FAC adding a claim for negligence against Ryan as well. (FAC ¶¶ 66-77, ECF No. 20.) In February 2020, Ryan and Russell Stover filed motions to dismiss (ECF Nos. 23, 31.) The Court sua sponte issued an Order Staying Discovery (ECF No. 43) as between all parties on April 21, 2020, until the presiding judge ruled on the pending motions to dismiss. While discovery was stayed, on June 24, 2020, Plaintiff filed a motion for leave to file his proposed second amended complaint (“SAC”). (Pl.'s Mot., ECF No. 49.)

On December 3, 2020, this Court entered a Memorandum Opinion and Order (ECF No. 57), granting Ryan's and Russell Stover's respective motions to dismiss under Rule 12(b)(6) for failure to state a claim against them. The Court also denied Plaintiff's motion to file his SAC based on futility. (Mem. Op. and Order 32-37, ECF No. 57.) Although the Court dismissed Ryan and Russell Stover from the case, the Court's opinion did not state whether it was with or without prejudice. (See Id. at 39.)

Discovery resumed in this case on December 18, 2020, with entry of the Court's Order Setting Pretrial Deadlines and Briefing Schedule (ECF No. 61). That Order set a February 16, 2021 deadline for amending the complaint. (Order 1, ECF No. 61.) Shortly thereafter, Plaintiff requested Tawil's driver qualification file, electronic tracking or logs, among other discovery, which Plaintiff received on or about January 5, 2021. (See Pl.'s Reply, Ex. A, ECF No. 74 at 12-13 of 57.) On January 25, 2021, Plaintiff filed his motion for leave to file his proposed amended complaint and to reconsider (ECF No. 69). Months later, on May 24, 2021, Plaintiff moved for leave to file supplemental evidence he received in discovery that, according to Plaintiff, supports his motion to

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amend. (See Pl.'s Mot. for Leave, ECF No. 81). The Court subsequently granted Plaintiff's motion to extend pretrial deadlines for discovery until April 15, 2022. (Order, ECF No. 101.)

C. New Allegations in Proposed Amended Complaint^[1]

In the proposed Third Amended Complaint (“TAC”), Plaintiff alleges that Tawil violated the hours-of-service rules for the Federal Motor Carrier Safety Act (“FMCSA”) and Federal Motor Carrier Safety Regulations (“FMCSR”) for a shipment organized, controlled, and directed by Stone Truck, Ryan, and Russell Stover. (TAC ¶ 29, ECF No. 69 at 31 of 70.) According to Plaintiff, Russell Stover and Ryan set the unsafe schedule for the route and driving conditions and required “time is of the essence” performance of the shipment, despite that the shipment could not reasonably be completed within the time required without violating the hours-of-service rules of the FMCSA and FMCSR while driving in accordance with driving laws. (Id.) Plaintiff asserts that the “delivery timeline required, or reasonably could expect Defendant Tawil to exceed the hours of service mandated by the Federal Motor Carrier Safety Act and Regulations, drive at unsafe speeds and disregard other safety issues for a trip of approximately 1, 800 miles (according to Google Maps), especially factoring in traffic, road conditions, inspections or other factors, such that the delivery timeline was unsafe and unreasonable.” (Id. ¶ 52, ECF No. 44 of 70.) The TAC states that Ryan provided the schedule, logistics, mandatory documentation, tracking, and in-service communications en route. (Id. ¶ 46, ECF No. 69 at 37 of 70.) Plaintiff contends that Ryan is vicariously liable as the statutory employer of Tawil and as a motor carrier. (Id. ¶ 50, ECF No. 40-41 of 70.)

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Plaintiff asserts that Tawil, in entering the intersection, “drove unsafely, impaired by driving excessive hours, affecting his alertness, by failing to maintain proper lookout and failing to yield the right-of-way to Plaintiff Dixon.” (Id. ¶ 30, ECF No. 69 at 31-32 of 70.) Additionally, the TAC states that the semi-truck driven by Tawil was unsafe for operation on the public roadways because the electronic tablet on the front window was installed in a manner to cause distracted driving and block the visibility of the oncoming motorcycle driven by Dixon, and because the front turn signals were inoperable, as asserted by the police report made after the crash (Id. ¶ 32, ECF No. 69 at 32 of 70.)

Plaintiff contends that Stone Truck, Ryan, and Russell Stover knew or should have known from a reasonable investigation that Tawil was an unsafe driver because he had numerous driving citations issued to him and his driving record was in the possession of Stone Truck and available to Ryan and Russell Stover. (Id. ¶ 43, ECF No. 69 at 34-35 of 70.) Tawil's driving record showed the following: “12/8/17 speeding violation; 8/6/17 violation for failure to obey yield sign; 3/11/16 violation for unsafe operation of a motor vehicle; 9/22/15 violation for improper backing; 4/12/15 violation for false record of duty service; 12/10/14 violation for operating a motor vehicle without proper brakes; 2/7/14 motor carrier regulations violations; 12/10/12 motor carrier regulations violations; 7/8/11 violation of registration; 12/7/08 violation for failure to obey traffic signal or light; 11/2/08 violation for operating vehicle without lights; 11/10/07 violation for failure to obey traffic signal; 11/10/07 speeding violation; 11/7/07 violation for failure to obey traffic control device or sign; 10/26/07 speeding violation; 10/26/07 failure to answer a citation or pay fine; 5/29/07 speeding violation.” (Id. ¶ 43, ECF No. 69 at 35 of 70.)

In the TAC, Plaintiff added more specific allegations about why Stone Truck was an unfit and incompetent motor carrier. (See Id. ¶ 44, ECF No. 69 at 35-36 of 70.) According to Plaintiff,

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Ryan and Russell Stover knew or should have known that Stone Truck had three cancellations of federally-mandated insurance policies by its former insurers; involvement in various injury crashes, including a fatal crash shortly before the injury in this case; a “non-ratable” safety rating issued by the FMCSA in 2018; an unsafe driving score above 4.5 issued by the Safety Measurement System for many months within close temporal proximity to the October 28, 2018 crash; a lack of regulatory-compliant safety training and continued-safety programs for drivers; and failed to...