United States District Court, E.D. Oklahoma
OPINION AND ORDER
Kimberly E. West, United States Magistrate Judge
matter comes before the Court on Defendants' Motion to
Dismiss for Failure to State a Claim (Docket Entry #64).
Plaintiff Dewayne Edward Deela (“Deela”)
initiated this action in the District Court in and for Atoka
County, Oklahoma on December 4, 2017 and the action was
subsequently removed by Defendants Annett Holdings, Inc.
d/b/a TMC Transportation (“TMC”) and David Wayne
King (“King”) to this Court on December 29, 2017.
The parties consented to the undersigned on March 16, 2018.
original Petition, Deela alleged that on April 28, 2017, King
was driving onto U.S. Highway 69 in front of Deela who was
travelling south on Highway 69. He stated that he did not
have time to avoid King's vehicle and collided into it,
causing him injury. Deela alleged King was driving in the
course and scope of his employment with TMC. He further
stated that the accident was caused by King's negligence
in (1) failing to yield to Deela's vehicle; (2) failing
to keep a proper lookout; (3) making an improper left turn;
(4) failing to stop at the stop sign; (5) driving too fast
for the conditions; (6) violating various city ordinances,
state statutes, and federal regulations; and (7) being
“otherwise negligent” which would be explained
further after discovery. Deela also asserted a claim for
negligent entrustment against TMC and contended TMC was
liable under a theory of respondeat superior. In
compensation for his alleged injuries, Deela sought
compensatory and punitive damages.
initial matter, Defendants acknowledge that they
mischaracterized their motion as one seeking dismissal under
Fed.R.Civ.P. 12(b)(6) when it should have been asserted under
Fed.R.Civ.P. 12(c) for judgment on the pleadings. A motion
for judgment on the pleadings is considered under the same
standard as a motion to dismiss. Ward v. Utah, 321
F.3d 1263, 1266 (10th Cir. 2003) citing Ramirez v. Dep't
of Corr., 222 F.3d 1238, 1240 (10th Cir. 2000). In
ruling on a motion for judgment on the pleadings, courts look
to the specific allegations of the complaint to determine
whether they plausibly support a legal claim for relief- that
is, a complaint must include “enough facts to state a
claim for relief that is plausible on its face.” TON
Servs., Inc. v. Qwest Corp., 493 F.3d 1225, 1236
(10th Cir. 2007). The Court accepts as true the well-pleaded
factual allegations of the opposing party and draws all
reasonable inferences in its favor. See Nelson v.
State Farm Mut. Auto. Ins. Co., 419 F.3d 1117, 1119
(10th Cir. 2005). In ruling on a motion for judgment on the
pleadings, the Court may consider the complaint, any material
that is attached to the complaint, and the answer.
See Park Univ. Enters. v. Am. Cas. Co., 442
F.3d 1239, 1244 (10th Cir. 2006). Additionally, the Court may
take judicial notice of court documents. Denver Health
& Hosp. Auth. v. Beverage Distrib. Co., LLC, 546
Fed.Appx. 742, 747 n.3 (10th Cir. 2013).
first contend Deela failed to state a claim for negligence
per se. The following elements must be shown in
order to establish a negligence per se claim: (1) the claimed
injury is of a type intended to be prevented by the statute
or regulation; (2) the injured party is a member of the class
intended to be protected by the statute or regulation; and
(3) the claimed injury was caused by the statutory or
regulatory violation. Bristow First Assembly of God v. BP
p.l.c., 210 F.Supp.3d 1284, 1294 (N.D. Okla. 2016)
citing Howard v. Zimmer, 299 P.3d 463, 474 (Okla.
2013). Defendants challenge the adequacy of Deela's
assertion of the negligence per se claim since he
did not identify the specific statutes or regulations
allegedly violated by King which led to his injuries. Make no
mistake - Deela's Petition is deficient in identifying
the violated laws or regulations and would have been required
to amend the initiating pleading to rectify the deficiency.
Given the advanced stage to which this case has progressed,
the question is whether the failure to make the
identification prejudices Defendants' ability to defend
their interests at trial.
their response to the Motion, Deela stated that he was
asserting violations of Okla. Stat. tit. 47, §11-404
(requiring drivers entering a highway to yield the
right-of-way to other drivers already on the highway), Okla.
Stat. tit. 47, §11-201 (requiring drivers to obey all
traffic signs, signals, and markings), 49 C.F.R. §392.14
(Federal Motor Carrier Safety Regulations requiring drivers
to exercise caution when driving in any conditions which can
affect visibility or traction). This statement placed
Defendants on notice of the specific statutes, the violation
of which Deela sought recovery. Deela will be limited to
proceeding to trial on these statutes only.
regard to the negligent entrustment claim, this Court has
rendered a ruling on Defendants' Motion for Partial
Summary Judgment which addresses the viability of that claim.
The same ruling is adopted in this Opinion and Order.
also seek judgment on the pleadings on the claim that King
was “otherwise negligent” with a promise that the
negligence will be explained after discovery. This vague and
illusory “claim” violates the express provisions
and spirit of Fed. R. Civ. 8(a) and will not be allowed.
THEREFORE ORDERED that Defendants' Motion to Dismiss for
Failure to State a Claim (Docket Entry #64) is hereby
GRANTED to the extent the ethereal
“otherwise negligent” claim is
DISMISSED and the claim for negligence
per se ...