United States District Court, M.D. Louisiana
RULING AND ORDER
JOHN W. deGRAVELLES, District Judge.
Before the Court is Toyota Motor Sales, U.S.A., Inc.'s Motion to Dismiss Pursuant to Fed. Rule Civ. Pro. 12(b)(6). (Doc. 11). Plaintiff opposes the motion. (Doc. 14). The Court has jurisdiction pursuant to 28 U.S.C. § 1332. Oral argument is not necessary.
After carefully considering the law, facts, and arguments of the parties, Defendant's motion to dismiss is granted, and Plaintiff's claims are dismissed without prejudice. Plaintiff is given twenty-eight (28) days within which to amend his complaint. In the event that Plaintiff fails to file an amendment to his complaint within that time, his claims will be dismissed with prejudice.
A. Factual Allegations
Pro se Plaintiff Marcus Davis brought suit against Toyota Motor Sales ("Defendant") on October 29, 2014, alleging that the airbags in a 2008 Toyota Sienna ("Sienna") that he was driving failed to deploy when he was in a car accident on September 9, 2008. (Doc. 1-1, p. 19).
Plaintiff alleges that he is a veteran of the United States Army. Id. Plaintiff alleges that he was employed by "ICF consultant" ("ICF") between April 30, 2007 and March 17, 2009. (Doc. 1, p. 2). During his employment, Plaintiff asserts that ICF provided to him a Sienna. (Doc. 1-1, p. 19). Plaintiff further alleges that following Hurricane Gustav, when the "traffic lights were not working, " an accident occurred when he was driving the Sienna. (Doc. 1, p. 2). The Sienna was struck by another vehicle while at a four-way stop, Id., and allegedly caused his vehicle to spin one-hundred and eighty degrees. Id. Plaintiff asserts that the "airbags never deployed, leaving [him] with multiple injuries." Id.
Plaintiff alleges that he was "not given a chance to be diagnosed and treated despite... being covered by [his] company insurance[.]" (Doc. 1-1, p. 19). He claims that he was pressured "not [to go] to the Doctor or [he] would lose [his] job." Id. He alleges that the injuries he sustained as a result of the crash have "become worse since the accident over the years" and have left him "virtually unemployable." Id. Plaintiff claims that he submitted an injury report and proof in writing to Defendant. Id.
Plaintiff seeks to recover damages for the injuries he suffered because of the alleged defective airbag. (Doc. 1, p. 1).
B. Present Motion
Defendant now moves for dismissal of all of Plaintiff's claims pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendant argues that "Plaintiff's claims... have prescribed, and, as such, [P]laintiff has not stated a claim upon which relief may be granted." (Doc. 11-1, p. 2). Defendant further contends that under Louisiana law, delictual actions, including those brought under the Louisiana Products Liability Act ("LPLA"), are subject to a liberative prescription of one year. (Doc. 11-1, p. 2-3) (citing La. Civ. Code art. 3492; La. R.S. 9:2800.52). Defendant argues that prescription against Plaintiff's claim began to accrue on the date of his alleged injury, September 9, 2008, (Doc. 11-1, p. 3), and that Plaintiff's claims prescribed on September 13, 2009 because of an executive order by the Governor of Louisiana that suspended prescription in Louisiana between September 5, 2008 and September 12, 2008. Id. Defendant further argues that Plaintiff's claim is prescribed because he waited "over six years after the date of the accident" to file suit. (Doc. 11-1, p. 4).
In his opposition to Defendant's motion to dismiss, Plaintiff argues that "[Defendant] has already admitted to the federal government that the vehicle in question was defective, and faulty[.]" (Doc. 14). Plaintiff argues in his opposition that "the worsening of [his] traumatic brain injury among other injuries stress from Hurricane Gustav delayed [his] awareness, and supervisors on the job interfered with [his] doctors trying to pressure him back to work." (Doc. 14). Plaintiff claims that he was prejudiced from getting a proper evaluation by a civilian doctor because he was diagnosed by the Veterans Association Administration ("VA") with forty (40) percent brain trauma. (Doc. 14). Furthermore, Plaintiff argues that the Servicemembers Civil Relief Act ("SCRA") applies to his claim because he is "technically still in the Army due to improper dismissal." Id.
In its reply, Defendant responds that the SCRA does not apply to Plaintiff because he was dismissed from the Army over seventeen years before the accident. (Doc. 16, p. 2). Defendant further argues that the Act does not apply to Plaintiff because, even if he is still technically in the Army as alleged, Plaintiff is not on "active duty" as required by the SCRA. Id. Defendant argues that Plaintiff "could not have been on full-time duty in the active military service of the United States'" because "he was employed by the private company ICF International Consultant when the accident occurred." (Doc. 16, p. 3).
A. Procedural Issues
First, it must be determined whether Defendant properly brought his Motion to Dismiss pursuant to Rule 12(b)(6). While Defendant claims to bring this motion pursuant to Rule 12(b)(6), Defendant attaches to its Memorandum in Support a thirty-eight page Tropical Cyclone Report on Hurricane Gustav from the National Hurricane Center's website. (Doc. 11-2, p. 1). Defendant cites to the report to establish the date Hurricane Gustav made landfall. (Doc. 11-1, p. 2 n. 6). Defendant also attaches to its Reply Memorandum in Support two documents from another case previously before this Court. (Doc. 16-1, p. 1). Though Defendant made no request to the Court, it is reasonable to infer that Defendant is seeking to have the Court take judicial notice of these documents. Thus, it must be determined whether it is appropriate to do so.
i. Judicial Notice
The Fifth Circuit has explained that "it is clearly proper in deciding a 12(b)(6) motion to take judicial notice of matters of public record." Norris v. Hearst Trust, 500 F.3d 454, 461 n. 9 (5th Cir. 2007); see also, Funk v. Stryker Corp., 631 F.3d 777, 783 (5th Cir. 2011) (holding that it is appropriate to take judicial notice under Rule 12(b)(6) of relevant publicly-available documents and transcripts). This Court has previously explained that "Federal Rule of Evidence 201 provides that a court may take judicial notice of an adjudicative fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.'" Hall v. Louisiana, No. 12-657, 2015 WL 1383532, at *1 (M.D. La. Mar. 23, 2015). The Fifth Circuit has held:
Judicial notice may be taken of facts known at once with certainty by all the reasonably intelligent people in the community without the need of resorting to any evidential data at all... Specific facts and propositions of generalized knowledge which are capable of immediate and accurate determination by resort to easily accessible sources of indisputable accuracy may be judicially noticed.
Weaver v. United States, 298 F.2d 496, 498-99 (5th Cir.1962) (citation omitted).
First, Defendant attached the National Hurricane Center's report on Hurricane Gustav to its Memorandum in Support to establish the date Hurricane Gustav made landfall. (Doc. 11-2, p. 1). This Court has previously explained that "the Fifth Circuit has held that a court may take judicial notice of governmental websites when considering a motion to dismiss." Bombet v. Donovan, No. 13-118, 2015 WL 65255, at *6 (M.D. La. Jan. 5, 2015) (citing In re Katrina Canal Breaches Consol. Lit., 533 F.Supp.2d 615 (E.D. La. 2008) ("The Fifth Circuit has determined that courts may take judicial notice of governmental websites.")). Accordingly, it is appropriate for the Court to take judicial notice of the report to establish the date Hurricane Gustav made landfall.
Second, Defendant attaches to its reply memorandum the complaint and amended complaint from a case previously before this Court. ( Davis v. United States Army, No. 14-415 M.D. La. Mar. 5, 2015, Doc. 16-1). Defendant uses Davis' previous complaint against the U.S. Army ("Army") to support its argument that "Plaintiff's dismissal from the Army... predates the accident at issue in this lawsuit by over seventeen years." (Doc. 16, p. 2). Defendant specifically cites to a "Certificate of Release or Discharge from Active Duty" (Doc. 16, p. 2 n. 2). While Defendant does not express it as such, it clearly seeks for the Court to take judicial notice of the other case.
Here, the Court will take judicial notice of the Army certificate of discharge Plaintiff attached to his amended complaint in Davis v. Army. (No. 14-415, Doc 7-1, p. 4). The Court is guided in its analysis by Prelic v. Medical Resources, Inc., 813 F.Supp.2d 654 (D. Md. 2011) and Flores v. United States Attorney General, No. 14-198, 2015 WL 1088782 (E.D. Tex. Feb. 5, 2015).
In Prelic, the plaintiff brought a claim of retaliation, among others, against the defendant on the basis of an offer of a Release that required her to "relinquish the right to institute any action or complaint of any type in any administrative forum or court of law...'" in order to receive severance pay. Id. at 658-59. In order to determine whether the offer of a Release was an adverse employment action, that court took judicial notice of a severance agreement from another unrelated case before the same court "as it is available electronically via PACER of this Court's CM/ECF." Id. at 668 n. 13 (citing Anderson v. Fed. Deposit Ins. Corp., 918 F.2d 1139, 1141 n.1 (4th Cir. 1990) (holding that a district court may "properly take judicial notice of its own records.")).
In Flores v. United States Attorney General, the Eastern District of Texas recently applied Prelich to take judicial notice of numerous similar lawsuits filed by the same litigant and explained:
The [140 similar lawsuits] at issue are capable of accurate and ready determination by reference to the record of the case available for public viewing in the Court's CM/ECF or PACER docketing system, and the public record of filings in those cases cannot reasonably be challenged. See, e.g., Prelic v. Medical Resources, Inc., No. ELH-10-3394, 2011 U.S. Dist. LEXIS 93712 at *36 n.13, 2011 WL 3678853 (D. Md. Aug. 19, 2011) (taking judicial notice of a severance agreement filed in another unrelated case pending in the same court "as it is available electronically via PACER of this Court's CM/ECF.") (citing Anderson v. Fed. Deposit Ins. Corp., 918 F.2d 1139, 1141 n.1 (4th Cir. 1990) (holding that a district court may "properly take judicial notice of its own records.")).
No. 14-198, 2015 WL 1088782, at *3 n. 3 (E.D. Tex. Feb. 5, 2015).
Here, the Court finds that the Army certificate of discharge from Davis' prior case is similarly capable of accurate and ready determination through this Court's CM/ECF or PACER docketing system, and the public record of Plaintiff attaching his certificate of discharge in that case cannot reasonably be challenged. Accordingly, the Court takes judicial notice of Plaintiff's Army certificate of discharge from his amended complaint in Davis v. Army, to establish that his separation date from the Army was July 29, 1991. (No. 14-415, Doc. 7-1, p. 4).
B. Rule 12(b)(6) Standard
In Johnson v. City of Shelby, Mississippi, 574 U.S. ____, 135 S.Ct. 346 (2014), the Supreme Court has explained:
Federal pleading rules call for "a short and plain statement of the claim showing that the pleader is entitled to relief, " Fed. Rule Civ. Proc. 8(a)(2); they do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted."
Id., 135 S.Ct. at 346-347.
Interpreting Rule 8(a) and Twombly, the Fifth Circuit explained:
The complaint (1) on its face (2) must contain enough factual matter (taken as true) (3) to raise a reasonable hope or expectation (4) that discovery will reveal relevant evidence of each element of a claim. "Asking for [such] plausible grounds to infer [the element of a claim] does not impose a probability requirement at the pleading stage; it simply calls for enough facts to ...