United States District Court, S.D. West Virginia, Beckley Division
MEMORANDUM OPINION AND ORDER
C. BERGER UNITED STATES DISTRICT JUDGE.
Court has reviewed Defendants Landstar Ranger, Inc.'s,
Appearing Specially, Landstar Express America, Inc.'s,
Appearing Specially, Landstar Global Logistics, Inc.'s,
Appearing Specially, and Landstar System Holdings,
Inc.'s, Appearing Specially, Motion to Dismiss (Document
3), the Memorandum of Law in Support of Defendants Landstar
Ranger, Inc.'s, Appearing Specially, Landstar Express
America, Inc.'s, Appearing Specially, Landstar Global
Logistics, Inc.'s, Appearing Specially, and Landstar
System Holdings, Inc.'s, Appearing Specially, Motion to
Dismiss (Document 4) and the Complaint (Document1-1). For the
reasons stated herein, the Court finds that the motion should
Plaintiff initiated this action with the filing of her
Complaint in the Circuit Court of Wyoming County on the 9th
day of August 2018. The Defendants removed the matter to this
Court on the 5th day of December 2018 and filed their motion
to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure on the same date. No. response has been filed
and the matter is ripe for ruling.
motion to dismiss filed pursuant to Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim upon which
relief can be granted tests the legal sufficiency of a
complaint or pleading. Francis v. Giacomelli, 588
F.3d 186, 192 (4th Cir. 2009); Giarratano v.
Johnson, 521 F.3d 298, 302 (4th Cir. 2008). Federal Rule
of Civil Procedure 8(a)(2) requires that a pleading contain
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2). Additionally, allegations “must be simple,
concise, and direct.” Fed.R.Civ.P. 8(d)(1).
“[T]he pleading standard Rule 8 announces does not
require ‘detailed factual allegations,' but it
demands more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atlantic Corp v. Twombly, 550 U.S.
544, 555 (2007)). In other words, “a complaint must
contain “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555.
Moreover, “a complaint [will not] suffice if it tenders
naked assertions devoid of further factual
enhancements.” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 557) (internal
quotation marks omitted).
Court must “accept as true all of the factual
allegations contained in the complaint.” Erickson
v. Pardus, 551 U.S. 89, 93 (2007). The Court must also
“draw [ ] all reasonable factual inferences from those
facts in the plaintiff's favor.” Edwards v.
City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999).
However, statements of bare legal conclusions “are not
entitled to the assumption of truth” and are
insufficient to state a claim. Iqbal, 556 U.S. at
679. Furthermore, the court need not “accept as true
unwarranted inferences, unreasonable conclusions, or
arguments.” E. Shore Mkts., v. J.D. Assocs. Ltd.
P'ship, 213 F.3d 175, 180 (4th Cir. 2000).
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice . . . [because courts] ‘are not bound to accept
as true a legal conclusion couched as a factual
allegation.'” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 555).
survive a motion to dismiss, “a complaint must contain
sufficient factual matter, accepted as true, ‘to state
a claim to relief that is plausible on its face.'”
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 570). In other words, this “plausibility
standard requires a plaintiff to demonstrate more than
‘a sheer possibility that a defendant has acted
unlawfully.'” Francis, 588 F.3d at 193
(quoting Twombly, 550 U.S. at 570). A plaintiff
must, using the complaint, “articulate facts, when
accepted as true, that ‘show' that the plaintiff
has stated a claim entitling him to relief.”
Francis, 588 F.3d at 193 (quoting Twombly,
550 U.S. at 557). “Determining whether a complaint
states [on its face] a plausible claim for relief [which can
survive a motion to dismiss] will . . . be a context-specific
task that requires the reviewing court to draw on its
judicial experience and common sense.” Iqbal,
556 U.S. at 679.
Defendants have appeared specially and argue that the
Plaintiff has failed to state a claim upon which relief can
be granted against them. Specifically, they argue that the
allegations against them are based on the acts of one Jeffrey
P. Russell, who is not employed by, nor acting on behalf of,
any of said Defendants. The Defendants also argue that the
Plaintiff does nothing more, in her complaint, than to name
the Defendants in the style of the case and in the title to
Count II of the Complaint and make a “general
unsupported allegation” that Jeffrey P. Russel is the
agent, servant and/or employee of these Defendants.
(Memorandum in Support p. 2) In consideration of the
Defendants' motion, this Court must assume all factual
allegations are true and draw all reasonable inferences from
those facts in the Plaintiff's favor. Erickson,
551 U.S. at 93.
Complaint, the Plaintiff alleges that on August 26, 2016, she
was the operator of a 2014 Ford Focus traveling northbound on
West Virginia Route 10 in Wyoming County. At the same time,
Jeffrey P. Russell, traveling southbound on Route 10, was
operating a 1999 International 9200 truck tractor owned by
Landstar Inway with a 2014 Fontaine flatbed trailer in tow
owned by Landstar Ranger, hauling a bulldozer with a large
blade on it. Ahead of Mr. Russell, in the southbound lane,
was a co-worker in a flag car who instructed the Plaintiff to
move to her right and stop. She complied and when Mr.
Russell's vehicle came past hers, he failed to stay to
the right and the blade on the bulldozer, located on the
flatbed, struck the Plaintiff's vehicle.
Plaintiff alleges that Jefferey P. Russell “was an
agent, servant and/or employee of … Landstar Ranger,
Landstar Express, Landstar Global and/or Landstar System,
” at the time of the collision Russell “was
engaged in his employment individually and as an agent,
servant and/or employee…” of these Defendants
and that his actions were committed “while he was
within the course and scope of his agency and/or
employment” with the moving Defendants. (Comp. Paragraphs
23- 25). Assuming these allegations to be true, as required
at this stage of the proceedings, the Court finds the
Plaintiff has stated a claim against these Defendants upon
which relief could be granted.
after thorough review and careful consideration, the Court
ORDERS that Defendants Landstar Ranger,
Inc. 's, Appearing Specially, Landstar Express America,
Inc.'s, Appearing Specially, Landstar Global Logistics,
Inc.'s, Appearing Specially, and Landstar System