Dominguez v. Target Corp.

• Decision Date: 08 February 2019
• Docket Number: 5:18-CV-23
• Parties: MARIA DEL ROSARIO DOMINGUEZ, Plaintiff, v. TARGET CORPORATION, et al, Defendants.
• Court: U.S. District Court — Southern District of Texas

MARIA DEL ROSARIO DOMINGUEZ, Plaintiff, v. TARGET CORPORATION, et al, Defendants.

5:18-CV-23

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS LAREDO DIVISION

February 8, 2019

REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

The Magistrate Court submits this Report and Recommendation to the District Court pursuant to 28 U.S.C. § 636(b)(3). This case has been referred, by order of the District Court, to the United States Magistrate Judge for an evaluation of the Defendant's Motion to Dismiss (Dkt. No. 31) under Federal Rule of Civil Procedure 12(b)(6). Because the Plaintiff's Second Amended Complaint contains sufficient factual matter to state a plausible claim for relief, the undersigned now RECOMMENDS that the District Court, after an independent and de novo review of the record, DENY the Defendant's Motion to Dismiss. (Dkt. No. 31.)

I. Procedural History

This case was removed from the 111^th District Court of Webb County, Texas, on February 16, 2018, on the grounds of diversity between the parties. (Dkt. No. 1.) On May 30, 2018, Plaintiff filed her First Amended Complaint seeking damages for injuries allegedly sustained from a fall on the premises of Defendant's store. (Dkt. No. 12 at 6.) On June 20, 2018, Defendant filed a Federal Rule of Civil Procedure 12(b)(6) Motion to Dismiss for failure to state a claim. (Dkt. No. 15.) The District Court granted the Motion to Dismiss on July 25, 2018, and gave Plaintiff leave to file an amended complaint. (Dkt. No. 23.) The District Court ruled that:

In sum, to maintain a premises-liability claim against Defendant, Plaintiff needed to show sufficient factual allegations which, accepted as true, would allow the Court to draw the reasonable inference Defendant had either actual or constructive knowledge of the water hazard that Plaintiff slipped in. She has not alleged that Defendant or its employees either placed that water on the floor or otherwise actually knew of its presence. To demonstrate constructive knowledge of the defect, she needed to allege some facts indicating "how long the hazard was there."

Id. at 5-6 (internal citations omitted). On August 10, 2018, Plaintiff filed her Second Amended Complaint which was substantially longer and included photographic exhibits. (Dkt. No. 27.) Defendant filed a Motion to Dismiss the Second Amended Complaint on August 24, 2018, on the grounds that the Complaint again failed to state a claim upon which relief can be granted. (Dkt. No. 31.) This Court stayed all discovery until the District Court rules upon Defendant's Motion to Dismiss. (Dkt. No. 34.) The second Motion to Dismiss was referred to the Court on September 13, 2018, and the Parties have made their arguments. (Dkt. Nos. 33, 35, 37, 39, 40.)

II. 12(b)(6) Motion to Dismiss Legal Standard

"Rule 8(a)(2) requires a pleading to contain a short and plain statement of the claim showing that the pleader is entitled to relief. The purpose of this requirement is to give the defendant fair notice of what the claim is and the grounds upon which it rests." Wooten v. McDonald Transit Assoc., Inc., 788 F.3d 490, 498 (5th Cir. 2015) (internal citations and alterations omitted). "Specific facts are not necessary; the statement need only 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (citations and marks omitted).

A complaint may be dismissed by the court for "failure to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). However, "[m]otions to dismiss under Rule 12(b)(6) 'are viewed with disfavor and are rarely granted.'" Lormand v. US Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009) (internal citation omitted). "To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead 'enough facts to state a claim to relief that is plausible on its face.'" In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Twombly, 550 U.S. at 570). The plausibility standard "does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence." Twombly, 550 U.S. at 556. A complaint is not required to provide "detailed factual allegations . . . [but it] requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do." Id. at 555 (internal citation omitted). "A well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and 'that a recovery is very remote and unlikely.'" Id. at 556 (emphasis added) (internal citations omitted). A complaint is sufficient if the "allegations are not so vague that [defendant] lack[s] notice of the contours of [plaintiff]'s claim." Wooten, 788 F.3d at 499. Determining whether a complaint states a plausible claim is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

Courts may require plaintiffs to specifically allege facts that they can be reasonably expected to possess.

For example, in a suit for personal injuries caused by the defendant's alleged negligence, some courts have required the plaintiff to assert specifically the time and place where the injury occurred, presumably as a means of providing sufficient notice to enable the defendant to form a response.

Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, § 1309 (4th ed. 2018) (emphasis added) [hereinafter Wright & Miller]. But some claims do not need to be factually supported in the complaint, instead, plaintiffs may proffer these facts on the basis of what they expect to find in discovery. The rule is that plaintiffs must identify "the factual contentions [that] have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery." FED. R. CIV. P. 11(b)(3) (emphasis added). This type of pleading is allowed for prudential reasons:

But beyond the technical question of authority, permitting allegations on information and belief is a practical necessity. How else can a pleader avoid the appearance of perjury when he is without direct personal knowledge regarding one or more of the allegations necessary to his claim and therefore must plead on a less certain footing? Pleading on information and belief is a desirable and essential expedient when matters that are necessary to complete the statement of a claim are not within the knowledge of the plaintiff but he has sufficient data to justify interposing an allegation on the subject.

Wright & Miller, at § 1224 (3rd ed. 2018) (emphasis added).¹ The Fifth Circuit Court of Appeals shares this view, ruling that "'information and belief' pleadings are generally deemed permissible under the Federal Rules, especially in cases in which the information is more accessible to the defendant." Johnson v. Johnson, 385 F.3d 503, 531 n.19 (5th Cir. 2004) (citing Wright & Miller at § 1224).

When evaluating a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss, the Fifth Circuit's "principle [is] that when discoverable information is in the control and possession of a defendant, it is not necessarily the plaintiff's responsibility to provide that information in her complaint." Innova Hosp. San Antonio, Ltd. P'ship v. Blue Cross & Blue Shield of Ga., Inc., 892 F.3d 719, 730 (5th Cir. 2018). The Fifth Circuit recently explained that pre-discovery:

The Twombly plausibility standard, which applies to all civil actions, . . . does not prevent a plaintiff from 'pleading facts alleged upon information and belief' where the facts are peculiarly within the possession and control of the defendant . . . or where the belief is based on factual information that makes the inference of culpability plausible.

Id. (quoting Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2nd Cir. 2010)). The Fifth Circuit and its district courts utilize this principle in the treatment of ERISA complaints,² prisoner litigation,³ contractual disputes,⁴ fraud,⁵ asbestos litigation,⁶ insurance claims,⁷ and the issue ofparty citizenship.⁸ Id. In the product liability context, for example, the Fifth Circuit has explained that requiring the pleading of "extremely 'detailed factual allegations' that satisfy each element of a products liability action . . . [would] create[] a situation where a manufacturer will not be held liable . . . because it has sole possession of the necessary document to ultimately prove the claim." Flagg v. Stryker Corp., 647 Fed. App'x 314, 317 (5th Cir. 2016) (citing Iqbal, 556 U.S. at 678) (internal citations omitted). The Fifth Circuit went on to explain that:

Twombly and Iqbal were designed to avoid subjecting defendants to lengthy and expensive discovery when the plaintiff is merely on a fishing expedition. . . . In this specific context, we must remember that the question at the motion to dismiss stage is not whether [Plaintiff] has proven the elements to succeed on a products liability claim, or even whether he has made "detailed factual allegations." The question is whether [Plaintiff] has plausibly alleged enough information that, with discovery, he could prove the Manufacturing Defendants are liable.

Id. at 319 (emphasis added) (internal citations omitted). Therefore, at the pre-discovery stage, a "[r]ule 12(b)(6) . . . motion only entails an examination of the sufficiency of the pleadings. In contrast, a summary-judgment motion typically is based on the pleadings as well as any affidavits, depositions, and other forms of evidence relevant to the merits of the challenged claim or defense that are available at the time the motion is made." Wright & Miller, at § 2713.

In evaluating a complaint, the court accepts "all well-pleaded facts as true,...