United States District Court, N.D. Oklahoma
MORRIS E. RIMES, JR., Plaintiff,
MVT SERVICES, LLC, a New Mexico, limited liability company d/b/a Mesilla Valley Transportation, and CECILIO PORTILLO, Defendants.
OPINION AND ORDER
V. EAGAN UNITED STATES DISTRICT JUDGE.
before the Court is defendant MVT Services LLC's (MVT)
motion for partial dismissal for failure to state a claim
under Fed.R.Civ.P. 12(b)(6). Dkt. # 7. Plaintiff Morris E.
Rimes, Jr. claims that MVT was negligent under a theory of
respondeat superior when its employee, defendant
Cecilio Portillo (Portillo), negligently drove into
plaintiff's truck. Dkt. # 2, at 2-4. MVT believes that
plaintiff is alleging two additional theories of negligence:
negligent entrustment and negligent hiring and retention.
Dkt. # 7, at 2-3. Plaintiff believes that he is alleging only
negligence (based on respondeat superior) and
negligent entrustment against MVT. Dkt. # 15, at 2. However,
his negligent entrustment claim includes allegations of
negligent hiring and retention. See Dkt. # 2, at 3.
alleges that on January 15, 2019, he was involved in an
accident with Portillo, who was driving an MVT semi-truck and
trailer truck on Interstate 44 near Miami, Oklahoma, causing
plaintiff to suffer severe personal injuries. Dkt. # 2, at 2.
Plaintiff alleges that Portillo was traveling eastbound, in
the same direction as plaintiff, but at an “excessive
and unsafe speed, ” which caused Portillo to collide
with plaintiff's semi-truck and trailer. Id.
Plaintiff alleges that the weather, at the time of the
accident, was inclement, with snow and ice on the roadway.
Dkt. # 15, at 1.
plaintiff's negligence allegations, he claims that
Portillo “failed to maintain a proper lookout for other
traffic, . . . failed to devote his full time and attention
to his driving, . . . recklessly failed to use his brakes and
other mechanical means available to avoid the collision, . .
. was traveling at an unsafe speed for road conditions
without regard to other traffic, . . . [and] was an
inattentive . . . [and] distracted” driver.” Dkt.
# 2, at 3. Defendant does not dispute that, at the time of
the accident, Portillo was an employee of MVT. Dkt. # 7, at
2. Plaintiff further alleges that MVT negligently entrusted
its vehicle to Portillo. Dkt. # 2, at 3. MVT does not dispute
that this claim is stated in the complaint. Dkt. # 7, at 2.
However, confusion arises in what MVT believes to be
plaintiff's third claim. Plaintiff's complaint states
MVT . . . negligently hired, screened, retained, trained
or instructed . . . Portillo, with regard to the
operation of its motor vehicle and his required compliance
with both state and federal laws including the FMCSA
regulations. [MVT] therefore negligently entrusted
[its] vehicle to . . . Portillo, and [was] individually
negligent in contributing to the cause of the collision and
Dkt. # 2, at 3 (emphasis added). The parties agree that this
is a negligent entrustment claim, but MVT treats the claim as
a separate negligent hiring and retention claim in its motion
for partial dismissal.
considering a motion to dismiss under Rule 12(b)(6), a court
must determine whether the claimant has stated a claim upon
which relief may be granted. “To survive a motion to
dismiss under Rule 12(b)(6), a plaintiff must plead
sufficient factual allegations ‘to state a claim to
relief that is plausible on its face.'” Doe v.
Woodard, 912 F.3d 1278, 1299 (10th Cir. 2019) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “A claim is facially plausible ‘when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.'” Id. (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
“All well-pleaded facts, as distinguished from
conclusory allegations, must be taken as true, and [the
court] must liberally construe the pleadings and make all
reasonable inferences in favor of the non-moving
party.” Id. (internal citation omitted).
Court first reaches MVT's argument that negligent hiring
and retention which, as discussed above, is alleged within
plaintiff's negligent entrustment claim, should be
dismissed. “Negligent entrustment of an automobile
occurs when the automobile is supplied, directly or through a
third person, for the use of another whom the supplier knows,
or should know, because of youth, inexperience, or otherwise,
is likely to use it in a manner involving unreasonable risk
of bodily harm to others . . . .” Sheffer v.
Carolina Forge Co., LLC, 306 P.3d 544, 548 (Okla. 2013).
To establish a claim of negligent entrustment, the plaintiff
must show that a reasonable person knew or should have known
that the person entrusted with the vehicle would be likely to
operate it in a careless, reckless, or incompetent manner.
Green v. Harris, 70 P.3d 866, 869 (Okla. 2003). A
necessary element of a negligent entrustment claim is that
the plaintiff's injury result from the driver's
careless or reckless operation of the vehicle. Clark v.
Turner, 99 P.3d 736, 743 (Okla.Civ.App. 2004).
Court reads plaintiff's complaint as not stating a
separate claim of negligent hiring and retention.
See Dkt. # 2, at 10. Rather, plaintiff combines
facts with legal conclusions to allege negligent hiring and
training as the basis for the claim of negligent entrustment.
See Dkt. # 2, at 10. Further, plaintiff admits that
his only claims for relief against MVT are negligence (based
on respondeat superior) and negligent entrustment.
Dkt. # 5, at 5. MVT does not dispute that these are the
claims. Dkt. # 20, at 2. Therefore, MVT's motion for
partial dismissal is moot, as it asks for a dismissal of an
alleged claim that has not been separately stated. The Court
accordingly finds that plaintiff's negligence claim of
respondeat superior and negligent entrustment claim
are the sole claims stated against MVT. Therefore, MVT's
motion for partial dismissal of plaintiff's alleged
negligent hiring and retention claim is moot.
also moves for dismissal of the relief of punitive damages.
Dkt. # 7, at 1. MVT argues that Fed.R.Civ.P. 9(g), which
requires that special damages be specifically stated, should
be interpreted as requiring that punitive damages be plead
with particularity. Id. MVT also argues that
plaintiff has not alleged conduct that rises to the level
required for an award of punitive damages, but has merely
alleged negligent conduct. Id. at 9-10. Plaintiff
counters that Oklahoma law recognizes punitive damages as
part of the claim, not a separate claim, and that the relief
of punitive damages is not subject to dismissal because
plaintiff has alleged recklessness, which could be a basis
for punitive damages under Oklahoma law. Id. at 7-9.
federal court sitting in diversity applies state substantive
law and federal procedural law. Shady Grove Orthopedic
Assocs., P.A. v. Allstate Ins. Co., 559, U.S. 393, 417
(2010). The Federal Rules of Civil Procedure are procedural
and applicable in federal district court. Racher v.
Westlake Nursing Home Ltd. P'ship, 871 F.3d 1152,
1162 (10th Cir. 2017) (“If a federal rule of
civil procedure answers the question in dispute, that rule
governs” in federal court.). Fed.R.Civ.P. 9(g) requires
that “[i]f an item of special damage is claimed, it
must be specifically stated.” In contrast, Fed.R.Civ.P.
9(b) requires that allegations of fraud be stated with
particularity. Because plaintiff “specifically
state[s]” in his complaint that he is seeking punitive
damages, the Court finds that it meets the requirements of
Fed.R.Civ.P. 9(g). See Huggins v. Four Seasons Nursing
Ctrs, Inc., 2007 WL 3113429, at *2 (N.D. Okla. Oct. 22,
2007) (unpublished) (plaintiff given leave to amend complaint
to request punitive damages where plaintiff did not do so);
Ferrell v. BGF Glob., LLC, 2018 WL 746399, at *3
(W.D. Okla. Feb. 6, 2018) (motion for summary judgment denied
because, although plaintiff did ...