Riley v. Cephas

• Decision Date: 11 May 2020
• Docket Number: CASE NO. 7:20-CV-00046-M
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: BARBARA RILEY, Plaintiff, v. LANCE CEPHAS individually and doing business as LANCE CEPHAS SERVICES AND RAYMOND HOLLIDAY, Defendants.

BARBARA RILEY, Plaintiff, v. LANCE CEPHAS individually and doing business as LANCE CEPHAS SERVICESAND RAYMOND HOLLIDAY, Defendants.

CASE NO. 7:20-CV-00046-M

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA SOUTHERN DIVISION

May 11, 2020

ORDER

This matter is before the court on Defendant's Motion to Dismiss [DE-7]. This diversity action arises from an automobile collision on North Carolina Highway 24. The original complaint, removed from state court, raised five separate causes of action seeking to recover both compensatory and punitive damages. A stipulation of voluntary dismissal [DE-14] disposed of three of the five claims.

I. Factual and Procedural History

Plaintiff alleges that on or about November 15, 2018, at approximately 8:43 p.m., she was driving west along North Carolina Highway 24 in Carteret County, North Carolina. Compl. ¶ 7, DE-1-1. At the same time, Defendant Cephas was driving east along the same highway in a freightliner tractor-trailer. Id. ¶¶ 8-9. Defendant Cephas was apparently traveling with Defendant Holliday. Defendant Cephas was attempting a left turn onto a private driveway while Defendant Holliday was directing traffic wearing dark clothing, without wearing a reflective vest. Id. ¶¶ 10-13. Plaintiff collided with the trailer and sustained injuries.

Plaintiff filed suit in the Superior Court of Onslow County, North Carolina, on November 14, 2019. Notice of Removal ¶ 1, DE-1. The named Defendants included Lance Cephas, individually and doing business as Lance Cephas Services, and Raymond Holliday. Id. The Defendants were served on February 14 and 15, 2020. Id. ¶ 2-3. Defendant Cephas removed the case to federal court on the basis of diversity jurisdiction on March 13, 2020, with Defendant Holliday's consent "upon information and belief." Id. ¶¶ 4-6.

Defendants filed a Motion to Dismiss [DE-7] and Answer [DE-9] to the complaint on March 20, 2020. The Defendants seek to dismiss counts two and three of Plaintiff's complaint (respondeat superior and negligent hiring/training) for a lack of personal jurisdiction due to the fact that Lance Cephas Services is a sole proprietorship, which cannot be sued. DE-8 at 3-4. The Defendants seek to dismiss count four (negligence) against Defendant Holliday for failure to state a claim on the basis that he owed no duty to wear reflective gear while assisting Defendant Cephas with the left turn. Id. at 4-6. The Defendants seek the dismissal of count five (spoliation) on the basis that negligent spoliation is not a recognized cause of action in North Carolina. Id. at 6-7. Finally, Defendants argue that no wanton or willful conduct has been alleged to support Plaintiff's claim for punitive damages. Id. at 7-9. The motion does not challenge count one (negligence & negligence per se) against Defendant Cephas in his individual capacity.

On April 6, 2020, the parties filed a Stipulation of Voluntary Dismissal [DE-14] dismissing counts two, three, and five of the complaint. Plaintiff filed a response in opposition to the Motion to Dismiss on April 10, 2020 [DE-15] addressing the two remaining issues: negligence by Defendant Holliday and punitive damages. Defendants filed a reply on April 24, 2020 [DE-17] and the motion is ripe for ruling.

II. Motion to Dismiss Legal Standard

In considering a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure for "failure to state a claim upon which relief can be granted," a court must determine whether the complaint is legally and factually sufficient. Fed. R. Civ. P. 12(b)(6); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008).

In doing so, the court must accept all well-pled allegations in a complaint as true and must construe all factual allegations in the light most favorable to the plaintiff. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). A court may also consider "documents incorporated into the complaint by reference, and matters of which a court may take judicial notice." Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); see Braun v. Maynard, 652 F.3d 557, 559 (4th Cir. 2011) (limiting review to the complaint itself when reviewing a district court's decision to grant a motion to dismiss); Am. Chiropractic Ass'n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004) ("Although as a general rule extrinsic evidence should not be considered at the 12(b)(6) stage, we have held that when a defendant attaches a document to its motion to dismiss, 'a court may consider it in determining whether to dismiss the complaint [if] it was integral to and explicitly relied on in the complaint and [if] the plaintiffs do not challenge its authenticity.'") (citations omitted); see also Doe v. Salisbury Univ., 123 F. Supp. 3d 748, 757 (D. Md. 2015) (declining to consider the expanded factual allegations in affidavits and exhibits attached to a plaintiff's response in opposition to a motion to dismiss); Bostic v. Mader, Case No. 2:12cv87, 2013 WL 4079288, at *8 (W.D.N.C. Aug. 13, 2013) (disregarding elaborated facts in plaintiff's response in opposition to a motion to dismiss because it is not a pleading under Fed. R. Civ. P. 7(a)).

However, a court need not accept a complaint's legal conclusions, elements of a cause of action, and conclusory statements. Iqbal, 556 U.S. at 678; see also Giarratano, 521 F.3d at 302. Nor must a court accept as true "unwarranted inferences, unreasonable conclusions, or arguments." E. Shore Markets, Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000); see also Iqbal, 556 U.S. at 678. To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint must contain facts sufficient to "state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570; see also Iqbal, 556 U.S. at 678.

III. Analysis

A. Claim of Negligence Against Defendant Holliday

Defendants argue that Defendant Holliday had no duty to wear reflective gear because the regulation cited by Plaintiff to support her cause of action (23 C.F.R. § 634) was removed from the Code of Federal Regulations effective January 25, 2010. In response, Plaintiff concedes that the provision relied upon was removed from the Code of Federal Regulations¹ and seeks instead to rely on the Manual on Uniform Traffic Control Devices ("MUTCD") for the requirement that Defendant Holliday wear high visibility apparel while exposed to traffic.

Plaintiff specifically relies upon MUTCD sections 6D.03 (requiring "[a]ll workers, including emergency responders, within the right-of-way who are exposed either to traffic . . . or work vehicles and construction equipment within the TTC zone shall wear high-visibility safety apparel . . . .") and 6E.02 (requiring "flaggers" to wear high-visibility safety apparel). Plaintiff claims Defendant Holliday constituted a "worker" as defined by section 1 A.13(138).

In the alternative, Plaintiff argues that Defendant Holliday was negligent in his attempt to direct traffic in dark clothing without reflective gear regardless of whether or not he was required by law to wear reflective gear. In reply, Defendants argue that the MUTCD is not applicable to Defendant Holliday. As for Plaintiff's alternative argument of ordinary negligence, Defendants argue it should be disregarded because the underlying factual allegations of Defendant Holliday directing traffic around an unlit, car-carrier trailer at night, wearing dark clothes with no reflective vest, using only a smartphone flashlight were not included in her complaint.

A federal court sitting in diversity must apply the substantive law of the forum state as would the highest court of that state. Castillo v. Emergency Med. Assocs. PA, 372 F.3d 643, 646 (4th Cir. 2004) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938)). The Manual on Uniform Traffic Control Devices ("MUTCD") serves as "the national standard for all traffic control devices installed on any street, highway, or bicycle trail open to public travel." 23 C.F.R. § 655.603(a); see 23 C.F.R. § 655.601(d) (incorporating by reference the MUTCD into federal regulations). North Carolina has adopted the MUTCD. See N.C. Gen. Stat. § 136-30(a) ("All traffic signs and other traffic control devices placed on a highway in the State highway system must conform to the Uniform Manual."). However, it is unclear the extent to which a private actor's noncompliance with the MUTCD can support a claim of negligence under North Carolina law. See Pope v. Bridge Broom, Inc., 240 N.C. App. 365, 383, 770 S.E.2d 702, 715 (N.C. Ct. App. 2015) ("Although this Court has held that the North Carolina Department of Transportation can be held liable under a theory of negligence per se for violating the MUTCD, our appellate courts have not yet addressed whether a private actor's noncompliance with the MUTCD can support a claim of negligence per se.") (citation omitted); cf. Gorman v. Earhart, 876 S.W.2d 832, 836 (Tenn. 1994) (holdingMUTCD applies only to public authorities and those entities with a contractual relationship with public authorities for the construction, operation, or maintenance of public roads and highways).

Under North Carolina law,

To state a claim for common law negligence, a plaintiff must allege: (1) a legal duty; (2) a breach thereof; and (3) injury proximately caused by the breach. The law imposes upon every person who enters upon an active course of conduct the positive duty to exercise ordinary care to protect others from harm, and calls a violation of that duty negligence. The duty of ordinary care is no more than a duty to act reasonably. The duty does not require perfect prescience, but instead extends only to causes of injury that were reasonably foreseeable and avoidable through the exercise of due care. Thus, [i]t is sufficient if by the exercise of reasonable care the defendant might

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