Durkee v. C.H. Robinson Worldwide Inc.

• Decision Date: 28 January 2011
• Docket Number: Civil Case No. 1:09cv449.
• Citation: 765 F.Supp.2d 742
• Court: U.S. District Court — Western District of North Carolina
• Parties: Margie Gail DURKEE; Michael Earl Durkee; Jackie Newton, Guardian Ad Litem on behalf of C.D.; Barney Durkee; Barbara Durkee, Timothy Cable, Guardian Ad Litem on behalf of D.B., a minor; Camelia Buchanan; and Kenneth Buchanan, Plaintiffs,v.C.H. ROBINSON WORLDWIDE, INC.; C.H. Robinson Company; Geologic Solutions, Inc.; Xata Corporation; N & W Holdings, LLC; PeopLease Corporation; Coretrans, LLC; Domtar Paper Company, LLC; d/b/a Domtar Corporation; Domtar Industries, Inc.; Domtar, Inc.; and Domtar Corporation, Defendants.

765 F.Supp.2d 742

Margie Gail DURKEE; Michael Earl Durkee; Jackie Newton, Guardian Ad Litem on behalf of C.D.; Barney Durkee; Barbara Durkee, Timothy Cable, Guardian Ad Litem on behalf of D.B., a minor; Camelia Buchanan; and Kenneth Buchanan, Plaintiffs,

v.C.H. ROBINSON WORLDWIDE, INC.; C.H. Robinson Company; Geologic Solutions, Inc.; Xata Corporation; N & W Holdings, LLC; PeopLease Corporation; Coretrans, LLC; Domtar Paper Company, LLC; d/b/a Domtar Corporation; Domtar Industries, Inc.; Domtar, Inc.; and Domtar Corporation, Defendants.

Civil Case No. 1:09cv449.

United States District Court, W.D. North Carolina,Asheville Division.

Jan. 28, 2011.

Ruth Campbell Smith, Crumley and Associates, Robert B. Long, Jr., Steve Ray Warren, Asheville, NC, for Plaintiffs.Amy Elizabeth Fitzgerald, Cranfill, Sumner & Hartzog, LLP, Charlotte, NC, Dana H. Hoffman, Young Moore and Henderson, Raleigh, NC, Ann–Patton Hornthal, Wyatt S. Stevens, Roberts & Stevens, P.A., Wilburn Oscar Brazil, III, Cogburn & Brazil, P.A., Brady James Fulton, Northup, McConnell & Sizemore, Isaac Noyes Northup, Jr., Northup & McConnell, PLLC, Asheville, NC, David Erik Albright, Smith Moore LLP, Greensboro, NC, Casper Fredric Marcinak, III, Robert D. Moseley, Jr., Smith Moore Leatherwood LLP, Greenville, SC, for Defendants.

MEMORANDUM OF DECISION AND ORDER

MARTIN REIDINGER, District Judge.

THIS MATTER is before the Court on the following:

1. Defendants Geologic Solutions, Inc.'s and Xata Corporation's Rule 12(b)(6) Motion to Dismiss [Doc. 25];

2. Defendants Geologic Solutions, Inc.'s and Xata Corporation's Rule 12(b)(6) Motion to Dismiss the Cross–Claims for Contribution and Indemnification Asserted against Them by Defendant Peoplease Corporation [Doc. 39]; and

3. Defendants Geologic Solutions, Inc.'s and Xata Corporation's Rule 12(b)(6) Motion to Dismiss the Cross–Claims for Contribution and Indemnification Asserted against Them by the Domtar Defendants [Doc. 60].

Pursuant to 28 U.S.C. § 636(b) and the Standing Orders of Designation of this Court, United States Magistrate Judge Dennis L. Howell was designated to consider the motions to dismiss and to submit recommendations for their dispositions.

On May 26, 2010, the Magistrate Judge entered a Memorandum and Recommendation in which he recommended that each of the three motions be granted. [Doc. 65]. The Plaintiffs timely filed objections.

PROCEDURAL & FACTUAL BACKGROUND

This action was initiated on December 16, 2009.¹ [Doc. 3]. In the Complaint, it is alleged that on the morning of July 1, 2008, Camelia Buchanan (Buchanan) was driving a 2002 Ford car in which Margie Durkee and two minor children, D.B. and C.D., were front seat passengers.² [ Id., at 5]. Buchanan slowed the car when she approached a highway work zone on Interstate 40 in Buncombe County. [ Id.]. Carroll Jett, who was driving a 2007 Volvo tractor trailer truck in the same direction, failed to slow his vehicle allegedly because he was distracted by a texting system inside the truck. [ Id.]. As a result, he drove the truck into and over the 2002 Ford resulting in serious injury to the individuals inside the car. [ Id.]. The Complaint alleges that Jett was negligent, grossly negligent, careless and reckless in numerous manners. [ Id.].

The Defendant Geologic Solutions, Inc. (Geologic) is a Delaware corporation which was acquired by Defendant Xata Corporation (Xata), a Minnesota corporation, prior to the time of the accident. [ Id., at 3]. Inside the tractor trailer truck being operated by Jett was a text messaging system which allowed Jett to receive text messages while driving.³ [ Id., at 13]. The system was manufactured by Geologic which is alleged to be a manufacturer pursuant to N.C. Gen.Stat. § 99B–1.⁴ [ Id., at 23]. In the Complaint, it is alleged that Geologic

failed to exercise reasonable care and was negligent in that it manufactured the Geologic texting system described herein so that the settings on said system could be adjusted to where the operator could send or receive text messages while traveling at Interstate highway speeds. [I]t was foreseeable by Geologic ... and/or Xata ... that the tractors in which the texting systems would be mounted and used would be carrying heavy loads while traveling at Interstate highway speeds.

Geologic ... and/or Xata ... knew, or in the exercise of reasonable care should have known, that drivers of tractor trailers, carrying heavy loads while traveling at Interstate highway speeds, would become distracted if a text message was sent to them and the system had been set to where the driver could review the text message while traveling at Interstate highway speeds. [T]he settings on the Geologic texting system, [at] the time and place of [the] accident, were made in accordance with the instructions or specifications of the manufacturer[.]

[A]t the time the Geologic Texting system left the control of the manufacturer[,] the manufacturer unreasonably failed to adopt a safe, practical, feasible, and otherwise reasonable alternative design that could have been reasonably adopted and it would have prevented or substantially reduced the risk of harm without substantially impairing the usefulness, practicality, or desirability of the product, in that Geologic texting systems could have been designed to where the system would only operate to where a driver could either send or receive messages while stopped.

[ Id., at 23–24]. It is also alleged that Geologic acted unreasonably pursuant to N.C. Gen.Stat. § 99B–6(b) because the risk of harm associated with the design of the product made it unreasonable and Geologic was likely aware that the product users would be long haul truckers on interstate highways carrying heavy loads. [ Id.].

Defendant Peoplease Corporation (Peoplease) asserted cross-claims against Geologic and Xata for contribution and indemnification. [Doc. 28, at 32–33]. Defendants Domtar Paper Company, LLC, Domtar Industries, Inc., Domtar, Inc. and Domtar Corporation (Domtar Defendants) also asserted cross-claims against Geologic and Xata for contribution and indemnification. [Doc. 55, at 25–27].

The Court's review of the docket shows that Geologic and Xata did not file an answer but instead moved to dismiss the claims against them for failure to state a claim upon which relief may be granted. [Doc. 25]. Geologic and Xata then moved to dismiss the cross-claims on the same grounds as those stated with regard to the Plaintiffs' claims. [Doc. 39; Doc. 60]. The Magistrate Judge concluded that the Plaintiffs had failed to state claims against Geologic and Xata and recommended that the motion be granted. That recommendation rendered the cross-claims futile and so he recommended that they be dismissed as well.

STANDARD OF REVIEW

A district court reviews specific objections to a Memorandum and Recommendation under a de novo standard. 28 U.S.C. § 636(b). “Parties filing objections must specifically identify those findings objected to.” Battle v. United States Parole Commission, 834 F.2d 419, 421 (5th Cir.1987), overruled on other grounds Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415(5th Cir.1996). If a party makes only general objections, de novo review is not required. Wells v. Shriners Hospital, 109 F.3d 198, 200 (4th Cir.1997)(boilerplate objections will not avoid the consequences of failing to object altogether). “Section 636(b)(1) does not countenance a form of generalized objection to cover all issues addressed by the magistrate judge; it contemplates that a party's objection to a magistrate judge's report be specific and particularized, as the statute directs the district court to review only those portions of the report or specified proposed findings or recommendations to which objection is made.” United States v. Midgette, 478 F.3d 616, 621 (4th Cir.2007), certiorari denied 551 U.S. 1157, 127 S.Ct. 3032, 168 L.Ed.2d 749 (2007) (emphasis in original).

Likewise, merely reiterating the same arguments made in the pleading submitted to the Magistrate Judge does not warrant de novo review. Id.; Veney v. Astrue, 539 F.Supp.2d 841, 846 (W.D.Va.2008). “Allowing a litigant to obtain de novo review of [the] entire case by merely reformatting an earlier brief as an objection ‘mak[es] the initial reference to the magistrate useless.’ ” Id. In order “to preserve for appeal an issue in a magistrate judge's report, a party must object to the finding or recommendation on that issue with sufficient specificity so as reasonably to alert the district court of the true ground for the objection.” Midgette, 478 F.3d at 622.

The Plaintiffs' objections exceed the twenty-five page limit stated in the Local Rules. Rules of Practice and Procedure of the United States District Court for the Western District of North Carolina, Rule 7.1(D). Counsel advises that it is not clear whether that limit applies to objections to a Memorandum and Recommendation. [Doc. 67, at 4]. The page limit, however, does in fact apply to objections. While the Court has not stricken the pages in excess of the limit, it is noted that the Objections are twice as long as the Memorandum and Recommendation. In the first seven pages, counsel sets out summaries of the objections to follow, which do little to assist the Court in addressing the objections. Likewise of little assistance to the Court are the objections raised that appear to be more in the nature of a semantic dispute with the Magistrate Judge as to his use of language than true objections to the substance of his recommendation or his underlying reasoning. Although this Court has conducted a de novo review, this opinion is limited to specifically stated objections. Arguments extraneous to the issues raised in those objections are not addressed herein.

In order to survive a motion to dismiss pursuant to Rule 12(b)(6), “a complaint must contain sufficient factual matter, when accepted as true, ‘to state a claim to relief that is plausible on its face.’ ” Ashcroft v....