Edmond v. Marathon Petroleum Co.
| Decision Date | 16 February 2021 |
| Docket Number | EP-20-CV-00210-DCG |
| Parties | JEROME EDMOND, Plaintiff, v. MARATHON PETROLEUM COMPANY, LP, and CARDINAL SERVICES, INC., Defendants. |
| Court | U.S. District Court — Western District of Texas |
Presently before the Court is Defendant Marathon Petroleum Company, LP's (Marathon) "12(b)(6) Motion to Dismiss, or Alternatively, 12(e) Motion for More Definite Statement" (ECF No. 2). For the reasons that follow, the Court grants the motion in part with leave to amend. Further, the Court sua sponte orders Plaintiff Jerome Edmond to amend his allegations against Defendant Cardinal Services, Inc. (Cardinal).
The following facts derive from Plaintiff Jerome Plaintiff's "Original Petition" (ECF No. 4-2) filed in the state court and, in this posture, are taken as true. Bowlby v. City of Aberdeen, Miss., 681 F.3d 215, 219 (5th Cir. 2012).
Marathon owns a refinery in El Paso, Texas.1 On or about January 23, 2020, Defendant Cardinal Services, Inc. ("Cardinal") placed Plaintiff at the refinery.2 On that day, Plaintiff wasworking at the refinery and shoveling out some pipes—when his "personal monitor" went off.3 He and a coworker told an area supervisor,4 who told them not to worry and go back to work.5 Marathon failed to remove dangerous chemicals from the area in which Plaintiff was working.6 Plaintiff passed out and woke up to medical personnel attending to him.7 He suffered injuries to his back, lungs, head, and other parts of his body.8
On April 15, 2020, Plaintiff brought this lawsuit against Marathon and Cardinal in the 327th Judicial District Court in El Paso County, Texas.9 In his state court petition, Plaintiff asserts a negligence claim or alternatively, a premises liability claim against Marathon and Cardinal. Plaintiff served the petition upon Marathon on June 29, 2020, and upon Cardinal on July 1, 2020.10 On July 17, 2020, Marathon removed the case to federal court premised upon diversity jurisdiction.11
On July 23, 2020, Marathon filed the instant motion.12 Plaintiff filed a response to the motion on July 29,13 and Marathon followed by filing a reply on August 5, 2020.14 In January 2021, the Court issued an order sua sponte permitting Plaintiff to submit a sur-reply in response to a new argument raised in Marathon's reply. Order for Sur-Reply, ECF No. 8. To date, Plaintiff has not filed a sur-reply.
Federal Rule of Civil Procedure 12(b)(6) allows a party to seek dismissal of a claim for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). On a Rule 12(b)(6) motion, a "court accepts all well-pleaded facts as true and must consider those facts in the light most favorable to the plaintiff." Romero v. City of Grapevine, Tex., 888 F.3d 170, 176 (5th Cir. 2018). But the court does not accept as true "conclusory allegations, unwarranted factual inferences, or legal conclusions." Ferrer v. Chevron Corp., 484 F.3d 776, 780 (5th Cir. 2007) (internal quotes and citation omitted). Further, the court must generally limit its inquiry to the complaint and its proper attachments. See, e.g., Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008) (citations omitted).
A complaint will survive a motion to dismiss if its facts, accepted as true, "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). To meet the "facial plausibility" standard, a plaintiff must "plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The complaint must contain either direct factual allegations or permit properly drawn inferences to support the elements of a cause of action in order to make out a valid claim. Wilson v. Birnberg, 667 F.3d 591, 595 (5th Cir. 2012); Torch Liquidating Tr. ex rel. Bridge Assocs. L.L.C. v. Stockstill, 561 F.3d 377, 384 (5th Cir. 2009). The court's task then is "to determine whether the plaintiff has stated a legally cognizable claim that is plausible, not to evaluate the plaintiff's likelihood of success." Doe ex rel. Magee v. Covington Cty. Sch. Dist., 675 F.3d 849, 854 (5th Cir. 2012) (en banc) (citation and internal quotation marks omitted). "In other words, we look to see whether [the plaintiff's] pleadings, including [his] legal arguments, plausibly state a claim." In re McCoy, 666 F.3d 924, 926 (5th Cir. 2012).
If "a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response," the party may move for a more definite statement before filing a responsive pleading. Fed. R. Civ. P. 12(e). The movant "must point out the defects complained of and the details desired." Id. Unlike a Rule 12(b)(6) motion, a Rule 12(e) motion is committed to the sound discretion of a trial judge. Mitchell v. E-Z Way Towers, Inc., 269 F.2d 126, 130 (5th Cir. 1959).
Rule 12(e) motions are "generally disfavored," and "granted only when a pleading is so 'barren of specifics,' that the opposing party is unable to respond," Prewitt v. Cont'l Auto., 927 F. Supp. 2d 435, 444 (W.D. Tex. 2013) (quoting United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 690 n.15 (1973)); see also Cates v. Int'l Tel. & Tel. Corp., 756 F.2d 1161, 1180 (5th Cir. 1985) (). "[A] motion for amore definite statement may not be used as a substitute for discovery." Davenport v. Rodriguez, 147 F. Supp. 2d 630, 640 (S.D. Tex. 2001) (citing Mitchell, 269 F.2d at 132).
Marathon advances several arguments in support of its motion to dismiss Plaintiff's claims asserted against it. It argues that Plaintiff's factual allegations do not plausibly suggest Marathon's liability under Section 96.003 of the Texas Civil Practice and Remedies Code. Mot. to Dismiss at ¶ 12. Further, it argues for the first time in its reply brief that even if Chapter 95 is inapplicable at the pleading stage, the complaint fails to allege sufficient facts to state a premises liability claim. Reply to Mot. at ¶ 6. Marathon also contends that the complaint fails to plead sufficient facts to state a negligence activity claim. Mot. to Dismiss at ¶ 12. Alternatively, Marathon requests that the Court order Plaintiff plead more definite statements. Id. at ¶¶ 14-17.
Enacted in 1995, Chapter 95 of the Texas Civil Practice and Remedies Code "reflects just one aspect of the Texas legislature's recent so-called 'tort reform' efforts." Spears v. Crown Cent. Petroleum Corp., 133 F. App'x 129, 130 (5th Cir. 2005). According to § 95.003, when a contractor or subcontractor (or an employee thereof) "who constructs, repairs, renovates, or modifies an improvement to real property" sues for personal injury, the property owner will not be liable unless the plaintiff can show that the property owner (1) exercised or retained "some control over the manner in which the work is performed" and (2) had "actual knowledge of the danger or condition resulting in personal injury, death, or property damage," yet "failed to adequately warn" of that danger or condition. Tex. Rev. & Rem. Code Ann. § 95.003. Furthermore, the code clarifies that "[t]his chapter applies only to a claim . . . that arises from the condition or use of an improvement to real property where the contractor or subcontractorconstructs, repairs, renovates, or modifies the improvement." Id. § 95.002(2) (emphasis added).15
When Chapter 95 applies, "it grants the property owner additional protection" over the common law on a premises liability or negligence claim asserted by an independent contractor or its employee. Ineos USA, LLC v. Elmgren, 505 S.W.3d 555, 561 (Tex. 2016). Under the common law, "an independent contractor or its employee can recover against a property owner for premises liability or negligence if the owner exercised some control over the relevant work and either knew or reasonably should have known of the risk or danger." Id. However, under Chapter 95, "the owner is not liable based merely on what it reasonably should have known," but liable only if "the owner "had actual knowledge of the danger or condition." Id. (quoting § 95.003(2).
Marathon argues that Plaintiff's complaint fails to plead facts from which it could be reasonably inferred that it had the requisite "control" and "actual knowledge," and consequently, fails to plausibly suggest that Marathon is liable for his injuries. Mot. to Dismiss at 3-5. Plaintiff counters that Chapter 95 is an "evidentiary requirement" to a negligence claim under which Marathon has the initial burden to show that the chapter applies to his claims and further that it does not apply at the pleading stage and pleading sufficiency. Pl.'s Resp. at 2-4.
Courts analyze Sections 95.002 and 95.003, in tandem, as an evidentiary burden-shifting framework: the property owner has the initial burden to establish that Chapter 95 applies to the plaintiff's claims, by presenting evidence "that conclusively establishes that all elements of section 95.002 have been met," and if the property owner satisfies that burden, "the burden thenshifts to the plaintiffs to establish both prongs of section 95.003—control, actual knowledge, and inadequate warning—in order to trigger the exception to a property owner's liability protection." Wallace v. Energen Res. Corp., 603 S.W.3d 499, 505 (Tex. App.—El Paso 2020, pet. filed); see also e.g., Cox v. Air Liquide Am., LP, 498 S.W.3d 686, 689 (Tex. App.—Houston [14th Dist.] 2016, no pet.); Covarrubias v. Diamond Shamrock Ref. Co., LP, 359 S.W.3d 298, 301 (Tex. App.—San Antonio 2012, no pet.); Gorman v. Ngo H. Meng, 335 S.W.3d 797, 802-03 (Tex....
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