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Greenfield v. Hocker

United States District Court, W.D. Oklahoma

July 16, 2019

MICHAEL GREENFIELD, Plaintiff,
v.
WILLIAM HOCKER, Individually and as Agent of AJS EXPRESS, LLC and AJS EXPRESS, LLC, a Foreign For-Profit Company, WILLIAM HOCKER, Individually and as Agent of AJS XPRESS, LLC, and AJS XPRESS, LLC, a Foreign For-Profit Company, WILLIAM HOCKER, Individually and as Agent of JACK RUST d/b/a RUST TRUCKING, and JACK RUST d/b/a RUST TRUCKING, C.H. ROBINSON WORLDWIDE, INC., a Foreign For-Profit Company, HUSTLER TURF EQUIPMENT, INC., a Foreign For-Profit Company, Defendants.

          ORDER

          STEPHEN P. FRIOT, UNITED STATES DISTRICT JUDGE

         Before the court are the following motions:

• Defendant AJS Xpress, LLC's Partial Motion to Dismiss for Failure to State a Claim (doc. no. 58)
• Defendant Jack Rust d/b/a Rust Trucking's Partial Motion to Dismiss for Failure to State a Claim (doc. no. 59)
• Defendant C.H. Robinson Worldwide, Inc.'s Motion to Dismiss for Failure to State a Claim (doc. no. 63)
• Defendant Hustler Turf Equipment, Inc.'s Motion to Dismiss for Failure to State a Claim (doc. no. 64)

         Background

         This action arises out of the assault and battery upon plaintiff, Michael Greenfield (Greenfield), by defendant, William Hocker (Hocker), on January 6, 2017. According to the Second Amended Complaint, the assault and battery occurred when Hocker delivered lawnmowers purchased from defendant, Hustler Turf Equipment, Inc. (Hustler), to Greenfield's store in Cushing, Oklahoma.

         The Second Amended Complaint specifically alleges that “Hustler hired [defendant, C.H. Robinson Worldwide, Inc. (C.H. Robinson)] to deliver Hustler's lawnmowers to [Greenfield];” “at the direction of Hustler, C.H. Robinson employed [defendants, Jack Rust, d/b/a Rust Trucking (Rust)], [A]S Express, LLC (AJS)], and/or [A]S Xpress, LLC (Xpress)], to deliver Hustler's lawnmowers to [Greenfield] . . .;” “Rust owns and operates, AJS and Xpress;” “Hocker . . . was employed by Rust, AJS and Xpress [and] was directed to deliver Hustler['s lawnmowers] to [Greenfield] on behalf of Hustler and C.H. Robinson;” “[during delivery], Hocker became confrontational, shoved [Greenfield] and broke the door to [Greenfield's store] as he left;” “Hocker reentered the premises . . . [and] again [became] confrontational cussing at [Greenfield] and shoving [Greenfield] with such force that it knocked [Greenfield] off his feet causing injury . . .;” “Hocker is easily angered and short tempered;” and “Rust, AJS and Xpress knew or should have known when they hired, retained, and supervised Hocker that there was an undue risk Hocker would become physically confrontational when he [was] angered.” Doc. no. 57, ¶¶ 15, 16, 17, 18, 22, 23, 24, 31, and 33.

         Greenfield alleges a claim against Hocker for assault and battery (First Cause of Action), claims against AJS, Xpress and Rust for respondeat superior liability (Second Cause of Action) and negligent hiring, training and retention (Third Cause of Action) and claims against C.H. Robinson and Hustler for vicarious liability and direct liability (Fourth Cause of Action). Xpress, Rust, C.H. Robinson and Hustler have filed motions under Rule 12(b)(6), Fed. R. Civ. P., challenging one or all of the claims alleged against them.

         Hustler

         In its motion, Hustler challenges both the vicarious liability and direct liability claims alleged against it. Hustler contends that dismissal of the vicarious liability claim is warranted because the Second Amended Complaint is devoid of any allegation that Hocker was an employee or agent of Hustler at the time he assaulted and battered Greenfield and is devoid of any facts to support the conclusory allegation that Hustler exercised sufficient control of C.H. Robinson, AJS, Xpress and Rust, to be vicariously liable for their alleged employee's misconduct. In addition, Hustler asserts that the direct liability claim is subject to dismissal because the conclusory allegation that it exercised sufficient control of C.H. Robinson, AJS, Xpress and Rust, is not adequate to support Hustler's liability for Greenfield's misconduct.

         Greenfield has not responded to Hustler's motion within the time required by the court's Local Civil Rules, specifically, Rule 7.1(g). In accordance with that local rule, the court, in its discretion, deems Hustler's motion as confessed. Upon review of the confessed motion, the court concludes that dismissal of the Second Amended Complaint against Hustler is appropriate. The Second Amended Complaint fails to state a plausible claim of vicarious liability or direct liability against Hustler. The Rule 12(b)(6) motion of Hustler will therefore be granted. Because there is no indication that the deficiencies of the Second Amended Complaint can be cured with leave to amend and plaintiff has not sought leave to amend his Second Amended Complaint, the court shall dismiss the Second Amended Complaint against Hustler with prejudice under Rule 12(b)(6).

         C.H. ...


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