Opinion
Civil Action No. DR-22-CV-00007-AM
2023-03-31
Paul SALAS, Jr., Plaintiffs, v. UNITED STATES, Defendant.
Alberto Rodriguez, Law Firm of Oscar A. Garza, Eagle Pass, TX, for Plaintiffs. Faith Johnson Lowry, DOJ-Civ, Washington, DC, Huiju Jeon, U.S. Attorney's Office, San Antonio, TX, for Defendant.
Alberto Rodriguez, Law Firm of Oscar A. Garza, Eagle Pass, TX, for Plaintiffs. Faith Johnson Lowry, DOJ-Civ, Washington, DC, Huiju Jeon, U.S. Attorney's Office, San Antonio, TX, for Defendant. ORDER ALIA MOSES, Chief United States District Judge
Pending before the Court is the Defendant's Motion to Dismiss. (ECF No. 17). The Court previously granted the instant motion in part and dismissed the Plaintiff's claims against U.S. Border Patrol Agent Roy Hutchinson III and the U.S. Department of Homeland Security for lack of jurisdiction under 28 U.S.C. § 1346, the Federal Tort Claims Act ('FTCA"). (ECF No. 18). The Defendant seeks to dismiss the Plaintiff's remaining claims against the United States, except the ordinary negligence claim. For the reasons discussed herein, the motion is GRANTED.
I. FACTUAL AND PROCEDURAL HISTORY
A. Factual History
On or about July 6, 2021, the Plaintiff, Paul Salas Jr., was injured in a motor vehicle accident with U.S. Border Patrol Agent Roy Hutchinson, III. The Plaintiff alleges that Agent Hutchinson was parked in a U.S. Border Patrol van on the shoulder of U.S. Highway 277 in Eagle Pass, Texas. As the Plaintiff passed by Agent Hutchinson's position, the agent allegedly improperly merged onto the highway and collided with the Plaintiff's vehicle. As a result of the traffic accident, the Plaintiff claims that he sustained physical and mental injuries, medical expenses, and lost wages. The Plaintiff has brought claims against the Defendant for negligence, negligence per se, gross negligence, and negligent hiring, training, supervision, qualification, and entrustment.
B. Procedural History
Invoking diversity jurisdiction, the Plaintiff originally filed this suit against the U.S. Department of Homeland Security and Agent Hutchinson. (ECF No. 1). The United States moved to substitute itself as a party-defendant and dismiss all the Plaintiff's claims, except the ordinary negligence claim. (ECF No. 10). The Honorable Victor Garcia, United States Magistrate Judge, denied the motion without prejudice, determining that it was premature because the United States had yet to certify that Agent Hutchinson was acting within the scope of his employment at the time of the accident pursuant to 28 U.S.C. § 2679(d)(1). In anticipation that the United States would renew its motion to dismiss, the Plaintiff filed an Amended Complaint that names the United States as the sole defendant, but raised claims separately against the United States and Agent Hutchinson. (ECF No. 16).
After the United States filed the instant motion and provided proof of certification, this Court ordered that the United States be substituted as a defendant in place of Agent Hutchinson. (ECF No. 18). This Court granted the instant motion in part and dismissed all claims against Agent Hutchinson and the U.S. Department of Homeland Security in recognition of the FTCA requirement that suits must be brought only against the United States and not its agents or agencies. Id.
II. LEGAL STANDARDS
The United States moves to dismiss the Plaintiff's gross negligence claim under Federal Rule of Civil Procedure 12(b)(1) and all other claims, except the ordinary negligence claim under Rule 12(b)(6).
"Motions filed under Rule 12(b)(1) of the Federal Rules of Civil Procedure allow a party to challenge the subject matter jurisdiction of the district court to hear a case." Fed. R. Civ. P. 12(b)(1). "The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction." Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (citation omitted). "Accordingly, the plaintiff constantly bears the burden of proof that jurisdiction does in fact exist." Id. "When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits." Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977) (per curiam).
Motions to dismiss for failure to state a claim are appropriate when a defendant attacks the complaint because it fails to state a legally cognizable claim. Fed. R.Civ.P. 12(b)(6). "A pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Federal Rule of Civil Procedure 12(b)(6) authorizes the dismissal of a complaint that "fail[s] to state a claim upon which relief can be granted . . . ." Fed. R. Civ. P. 12(b)(6). "To 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.' " Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Ati. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Accordingly, "[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of entitlement to relief requires 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, 127 S.Ct. 1955 (internal citations, quotations, and alterations omitted); accord Ackerson v. Bean Dredging LLC, 589 F.3d 196, 208 (5th Cir. 2009). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.' " Iqbal, 556 U.S. at 696, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). Instead, "[f]actual allegations must be enough to raise a right to relief above the speculative level . . . ." Twombly, 550 U.S. at 555, 127 S.Ct. 1955. That is, there must be "a 'showing,' rather than a blanket assertion, of entitlement to relief." Id. at 556 n.3, 127 S.Ct. 1955 (quoting Fed. R. Civ. P. 8(a)(2)). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged but it has not 'shown' that the pleader is entitled to relief." Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 (alteration omitted) (quoting Fed. R. Civ. P. 8(a)(2)).
A Rule 12(b)(6) motion to dismiss "is viewed with disfavor and is rarely granted." Kaiser Alum. & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982) (quotation omitted). Therefore, the complaint must be liberally construed in a plaintiff's favor, all reasonable inferences must be drawn in favor of a plaintiff's claims, and the factual allegations of the complaint must be taken as true. See Campbell v. Wells Fargo Bank, 781 F.2d 440, 442 (5th Cir. 1986). In ruling on a Rule 12(b)(6) motion to dismiss, courts generally should not go beyond the pleadings and must limit their inquiry to the facts stated in the complaint. See Fed. R. Civ. P. 12(d); Lovelace v. Software Spectrum Inc., 78 F.3d 1015, 1017 (5th Cir. 1996). Thus, to evaluate a Rule 12(b)(6) motion to dismiss, a court may consider: (1) the pleadings and any attachments to the pleadings, Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000); (2) documents incorporated into the complaint by reference, Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008); (3) documents that a defendant attaches to its motion to dismiss if those documents are referred to in a plaintiff's complaint and are central to a plaintiff's claim, see Scanlan v. Tex. A&M Univ., 343 F.3d 533, 536 (5th Cir. 2003); (4) matters of public record, Cinel v. Connick, 15 F.3d 1338, 1343 n.6 (5th Cir. 1994); and (5) information subject to judicial notice. Dorsey, 540 F.3d at 338.
III. ANALYSIS
A. Plaintiff's Gross Negligence Claim
The Plaintiff's Amended Complaint alleges that the motor vehicle accident amounted to gross negligence. (ECF No. 16). The Defendant is requesting that the Court dismiss the Plaintiff's gross negligence claim for lack of jurisdiction. (ECF No. 17). The FTCA provides a limited waiver of sovereign immunity for tort suits brought against the United States or its agencies. 28 U.S.C. §§ 2674, 2679(a). The FTCA grants federal courts with "exclusive jurisdiction of civil actions on claims against the United States for money damages for personal injury caused by the negligent or wrongful acts or omissions of any federal employee while acting within the scope of his office or employment." Esquivel-Solis v. United States, 472 F. App'x 338, 339 (5th Cir. 2012) (per curiam) (citing 28 U.S.C. § 1346(b)(1)). Under this statute, an injured party may bring a cause of action against the United States "in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1). Because the Plaintiff claims that the alleged negligence occurred in Maverick County, Texas, Texas tort law applies. (ECF No. 16). Even after application of Texas law, such claims are not cognizable under the FTCA.
Title 28 of the United States Code designates the United States as "liable . . . in the same manner and to the same extent as a private individual under like circumstances" in claims brought under the FTCA. 28 U.S.C. § 2674. The statute prohibits a finding of punitive damages against the United States. Id. The Supreme Court has concluded that § 2674 "bars the recovery of what are legally considered 'punitive damages' under traditional common-law principles" for FTCA claims. Molzof v. United States, 502 U.S. 301, 312, 112 S.Ct. 711, 116 L.Ed.2d 731 (1992). The Supreme Court has explained that "[t]he common-law definition of 'punitive damages' focuses on the nature of the defendant's conduct," and " '[b]y definition . . . are based upon the degree of the defendant's culpability.' " Molzof, 502 U.S. at 715-16, 112 S.Ct. 711 (quoting Massachusetts Bonding & Ins. Co. v. United States, 352 U.S. 128, 133, 77 S.Ct. 186, 1 L.Ed.2d 189 (1956)). As a result, "[d]amages that depend on proof of the Government's 'conscious indifference to the rights, safety, and welfare of others' constitute 'punitive damages' under both traditional common-law principles and Texas law." Jimenez v. United States, No. SA-20-CV-00575-XR, 2021 WL 860008, *12 (W.D. Tex. Mar. 5, 2021) (citing Clements v. Steele, 792 F.2d 515, 517 (5th Cir. 1986). Texas law firmly establishes that gross negligence requires a finding that the defendant acted with conscious indifference to the safety of the public. See McPhearson v. Sullivan, 463 S.W.2d 174 (Tex. 1971) ("Gross negligence is 'that entire want of care which would raise the belief that the act or omission complained of was the result of a conscious indifference to the right or welfare of the person or persons to be affected by it."); U-Haul Intern., Inc. v. Waldrip, 380 S.W.3d 118, 137 (Tex. 2012) ("Plaintiffs must prove . . . the defendant had actual, subjective awareness of the risk involved, but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others.); Clements, 792 F.2d at 517 ("Proof of the defendant's state of mind is necessary to support a finding of gross negligence and an award of punitive damages under Texas law.").
The Plaintiff does not explicitly request an award of punitive damages. Yet, because gross negligence requires a plaintiff to prove that a defendant acted with "conscious indifference" to the public's safety, any award flowing from such a finding would be de facto punitive. Thus, because § 2674 bars recovery of punitive damages in FTCA cases, the Plaintiff cannot recover under a theory of gross negligence.
The Plaintiff did, however, request exemplary damages. (ECF 10). In Texas, exemplary damages are "any damages awarded as a penalty or by way of punishment but not for compensatory purposes." Tex. Civ. Prac. & Rem. Code. § 41.001(5); see id. § 41.001(5) (" 'Exemplary damages' includes punitive damages."); id. § 41.993(a) (permitting recovery of exemplary damages if the claimant proves that fraud, malice, or gross negligence caused the harm at issue). While exemplary damages are permitted in successful gross negligence claims, as explained above, damage awards flowing from gross negligence are punitive. In cases of gross negligence, exemplary and punitive damages are functionally equivalent and therefore barred by the FTCA. Thus, this Court lacks subject matter jurisdiction for the Plaintiff's gross negligence claim, and it must be DISMISSED.
B. Plaintiff's Negligence Per Se Claim
The Plaintiff alleges that the Defendant is liable under a theory of negligence per se. (ECF No. 16). Specifically, the Plaintiff contends that the Defendant violated § 545.401 of the Texas Transportation Code, thereby constituting negligence per se. The Defendant argues that the Plaintiff's claim is deficient under Rule 12(b)(6). (ECF No. 17).
"Negligence per se is a common-law doctrine in which a duty is imposed on a standard of conduct created by a penal statute rather than on the reasonably prudent person test used in pure negligence claims." Smith v. Merritt, 940 S.W.2d 602, 607 (Tex. 1997). "Where a statute incorporates the ordinarily prudent person standard, negligence per se does not apply because the statute does not establish a specific standard of conduct different from the common-law standard of ordinary care." Supreme Beef Packers, Inc. v. Maddox, 67 S.W.3d 453, 456 (Tex. App. - Texarkana 2002, pet. denied); see also See Waring v. Wommack, 945 S.W.2d 889, 891 (Tex. App. 1997) (holding that violation of § 545.152 for failing to yield to oncoming traffic does not constitute negligence per se because it "comes within the class of statutes in which the common-law standard of the reasonably prudent man must be used").
The Plaintiff contends that a violation of § 545.401 of the Texas Transportation Code amounts to negligence per se. (ECF No. 16). A person violates § 545.401 "if the person drives a vehicle in wil[l]ful or wanton disregard for the safety of persons or property." Tex. Transp. Code § 545.401(a). While § 545.401 requires a person to act with "wil[l]ful or wanton disregard" to perfect an offense, it "does not impose a special standard of care, and thus may not support negligence per se." Fret v. Melton Truck Lines, Inc., Civ. No. SA-15-CV-00710-OLG, 2016 WL 10590158, at *3 (W.D. Tex. Nov. 29, 2016) (citing Freudiger v. Keller, 104 S.W.3d 294, 297 (Tex. App. 2003)), rev'd in part on other grounds, 706 F. App'x 824 (5th Cir. 2017). Therefore, violations of § 545.401 cannot amount to negligence per se. Thus, the Plaintiff's negligence per se claim cannot survive Rule 12(b)(6) and is DISMISSED.
C. Plaintiff's Negligent Hiring, Training, Supervision, and Qualification Claims
The Plaintiff has alleged that the Defendant negligently hired, trained, supervised, and qualified Agent Hutchinson. (ECF No. 16). The Defendant contends that these claims must be dismissed because they simultaneously assert a theory of direct liability and vicarious liability. (ECF No. 17).
"Under the theory of respondeat superior, . . . an employer may be vicariously liable for the negligent acts of its employee if the employee's actions are within the course and scope of his employment." Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 757 (Tex. 2007). The respondeat superior doctrine allows an injured person to recover from an employer when its employee negligently acts within the ordinary scope of employment. However, "direct causes of action asserting negligent hiring, negligent training, negligent supervision, and negligent qualification are based on the employer's own negligent conduct and not the employee's negligent conduct." Kuss v. Ulmer, Civ. No. SA-19-CV-00629-JKP, 2021 WL 1433062, at *5 (W.D. Tex. March 17, 2021).
"In cases involving ordinary negligence, direct causes of action which impose liability on an employer for its own negligence (e.g., negligent hiring) and causes of action which impose liability on an employer for its employee's negligence (vicarious liability) are 'mutually exclusive modes of recovery.' " Id. (citing Rosell v. Cent. W. Motor Stages, Inc., 89 S.W.3d 643, 654 (Tex. App. - Dallas 2002, pet. denied)). Therefore, when a plaintiff pleads only ordinary negligence and an employer stipulates to vicarious liability, "the employee's competence and the employer's own negligence in hiring, failing to properly train, or negligently supervising become irrelevant." Williams v. McCollister, 671 F. Supp. 2d 884, 888 (S.D. Tex. 2009)). In effect, allegations brought against an employer under simultaneous theories of vicarious and direct liability are unsustainable "where the derivative liability of the owner has already been established by an admission or stipulation of agency or course and scope of employment." Plascencia v. Hillman, No. 19-CV-40, 2019 WL 4087439, at *3 (W.D. Tex. July 3, 2019).
The Plaintiff's only remaining claim brought under a vicarious liability theory is ordinary negligence. See Kuss, 2021 WL 1433062, at *5 ("The Court's ruling dismissing Plaintiff's gross negligence claims means that he may now bring only ordinary negligence claims against the Defendants."). The Defendant has stipulated to vicarious liability and certified that Agent Hutchinson was acting within the scope of his employment at the time of the accident. (ECF No. 16). Therefore, the Defendant does not contest any potential vicarious liability if Agent Hutchinson were to be found to have acted negligently. Because the Defendant does not contest vicarious liability, the Plaintiff's ordinary negligence claim is mutually exclusive of his additional negligent hiring, training, supervising, and qualifying claims. The Plaintiff cannot pursue all those theories of recovery simultaneously. Thus, the Plaintiff's negligent hiring, training, supervision, and qualification claims against the Defendant cannot survive under Rule 12(b)(6) and are DISMISSED.
D. Plaintiff's Negligent Entrustment Claims
The Plaintiff's last claim is that the United States negligently entrusted Agent Hutchinson with operating a vehicle. (ECF No. 16). The Plaintiff's negligent entrustment claim endeavors to hold the Defendant directly liable for Agent Hutchinson's conduct. As such, it is a "mutually exclusive mode[ ] of recovery," and cannot be sustained simultaneously with claims alleged under a theory of vicarious liability. Rosell v. Cent. W. Motor Stages, Inc., 89 S.W.3d 643, 654 (Tex. App. - Dallas 2002, pet. denied) ("Where only ordinary negligence is alleged, the case law supports . . . that negligent hiring or negligent entrustment and respondeat superior are mutually exclusive modes of recovery."); see also Plascencia, 2019 WL 4087439, at *3 (granting partial summary judgement on negligent entrustment claim when vicarious liability is alleged and uncontested). As explained above, the Defendant has stipulated to its vicarious liability for the Plaintiff's ordinary negligence claim. The Plaintiff may not plead direct liability through the negligent entrustment claim because it would be a "mutually exclusive mode of recovery" when paired with the ordinary negligence claim. On these grounds alone, the negligent entrustment claim must be dismissed.
The Defendant, however, has moved to dismiss the negligent entrustment claim on different grounds. The United States has asserted that the Plaintiff failed to plead any factual basis sufficient to satisfy Rule 12(b)(6). Instead, the United States claims that the Plaintiff has alleged legal conclusions devoid of a factual basis to plead negligent entrustment.
"To 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, 129 S.Ct. 1937 (quotations omitted). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of entitlement to relief requires 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, 127 S.Ct. 1955 (internal citations, quotations, and alterations omitted).
The Plaintiff has only made bare assertions of negligent entrustment that merely mirror the elements of the offense. A plaintiff must satisfy these elements to make out a negligent entrustment claim under Texas law: "(1) entrustment of a vehicle by the owner; (2) to an unlicensed, incompetent, or reckless driver; (3) that the owner knew or should have known to be unlicensed, [incompetent, or reckless,] (4) that the driver was negligent on the occasion in question and (5) that the driver's negligence proximately caused the accident." Wright v. Weaver, 516 Fed. Appx. 306, 309 (5th Cir. 2013) (quoting Schneider v. Esperanza Transmission Co., 744 S.W.2d 595, 596 (Tex. 1987)). The Plaintiff's Amended Complaint alleges that the Defendant "was negligent in entrusting" the vehicle to Agent Hutchinson because he "was an unskilled, incompetent and reckless driver," and the Defendant "knew, or through the exercise of ordinary and prudent care, should have known that the said [Agent Hutchinson] was an unskilled, incompetent and reckless driver . . . ." (ECF No. 16). The Plaintiff here has recited the elements of Texas's negligent entrustment law without substantiating his allegations with any additional facts. The Court cannot accept "conclusory allegations, unwarranted factual inferences, or legal conclusions" as factual matter necessary to survive a Rule 12(b)(6) motion. Ferrer v. Chevron Corp., 484 F.3d 776, 780 (5th Cir. 2007). The Plaintiff has thereby failed to state a plausible claim within the Amended Complaint, thus the negligent entrustment claim is DISMISSED.
IV. CONCLUSION
For the foregoing reasons, the Defendant's Motion to Dismiss, (ECF No. 17), is GRANTED.