United States District Court, E.D. Louisiana
ORDER AND REASONS
E. FALLON United States District Judge
the Court is Defendants Lakeland Tours, LLC and ProSight
Specialty Insurance's motion to dismiss. Rec. Doc. 11.
Plaintiff opposes the motion. Rec. Doc. 14. Having considered
the parties' arguments, submissions, and applicable law,
the Court now issues this Order and Reasons.
personal injury case arises from a passenger's fall
aboard a chartered bus. In the afternoon of April 22, 2016,
Plaintiff Renee Shipley was a passenger on one of
Lakeland's chartered buses. Rec. Doc. 3. She was
accompanying her grandson on a field trip from Saraland,
Alabama, to the Audubon Zoo in New Orleans, Louisiana. Two
Lakeland buses were chartered for the field trip.
return journey, Ms. Shipley rode on the second, trailing bus.
Id. At some point during the return trip, Ms.
Shipley left her seat to get something from the overhead
compartment. Id. at 3-4. Meanwhile, in attempt to
catch up to the lead bus traveling towards the on-ramp to
Interstate 10 on Carrollton Avenue, the trailing bus
allegedly traveled too fast for the traffic conditions.
Id. As the trailing bus approached the exit, a
pickup truck driven by Steven Charles cut in front of the bus
to enter the gas station on the corner of Washington Avenue
and Carrollton Avenue. Id. To avoid colliding with
the truck, the bus driver slammed on the brakes. Although
there was no collision, the sudden stop caused Ms. Shipley to
fall. Ms. Shipley suffered a fractured clavicle, injuries to
her head and neck, and numerous contusions, for which Ms.
Shipley received immediate hospitalization and ongoing
medical treatment. Id. at 4.
April 21, 2017, Ms. Shipley sued Mr. Charles and his
fictitious insurance company; Lakeland; ProSight; and State
Farm Automobile Insurance Company, which is Ms. Shipley's
under/uninsured motorist insurer. Ms. Shipley alleges that
the negligence of Mr. Charles and Lakeland's bus
driver-for whom Lakeland is responsible through the doctrine
of respondeat superior-caused her injuries.
Id. Defendant now seeks dismissal pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure allows a
party to move for dismissal of a complaint for failure to
state a claim upon which relief can be granted. Such a motion
is rarely granted because it is viewed with disfavor. See
Lowrey v. Tex. A & M Univ. Sys., 117 F.3d 242, 247
(5th Cir. 1997) (quoting Kaiser Aluminum & Chem.
Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045,
1050 (5th Cir. 1982)).
Rule 8(a)(2) of the Federal Rules of Civil Procedure, a
pleading must contain a “short and plain statement of
the claim showing that the pleader is entitled to
relief.” Ashcroft v. Iqbal, 556 U.S. 662,
678-79 (2009) (citing Fed.R.Civ.P. 8). “[T]he pleading
standard Rule 8 announces does not require ‘detailed
factual allegations, ' but it demands more than an
accusation.” Id. at 678 (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
considering a Rule 12(b)(6) motion, the Court
“accept[s] all well-pleaded facts as true and view[s]
all facts in the light most favorable to the
plaintiff.” See Thompson v. City of Waco,
Texas, 764 F.3d 500, 502 (5th Cir. 2014) (citing Doe
ex rel. Magee v. Covington Cnty. Sch. Dist. ex rel.
Keys, 675 F.3d 849, 854 (5th Cir. 2012) (en banc)). But
in deciding whether dismissal is warranted, the Court will
not accept conclusory allegations in the complaint as true.
Id. at 502-03 (citing Iqbal, 556 U.S. at
survive dismissal, “‘a complaint must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.'”
Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009)
(quoting Iqbal, 556 U.S. at 678) (internal quotation
marks omitted). “Factual allegations must be enough to
raise a right to relief above the speculative level, on the
assumption that all the allegations in the complaint are true
(even if doubtful in fact).” Twombly, 550 U.S.
at 555 (citations and footnote omitted). “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 (“The plausibility
standard is not akin to a ‘probability requirement,
' but it asks for more than a sheer possibility that a
defendant has acted unlawfully.”). This is a
“context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Id. at 679. “Where a complaint
pleads facts that are merely consistent with a
defendant's liability, it stops short of the line between
possibility and plausibility of entitlement to relief.”
Id. at 678 (internal quotations omitted) (citing
Twombly, 550 U.S. at 557). “[A]
plaintiff's obligation to provide the ‘grounds'
of his ‘entitle[ment] to relief'”, thus,
“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
(alteration in original) (citation omitted). Finally,
“[w]hen reviewing a motion to dismiss, a district court
‘must consider the complaint in its entirety, as well
as other sources ordinarily examined when ruling on Rule
12(b)(6) motions to dismiss, in particular, documents
incorporated into the complaint by reference, and matters of
which a court may take judicial notice.” Funk v.
Stryker Corp., 631 F.3d 777, 783 (5th Cir. 2011)
(quoting Tellabs, Inc. v. Makor Issues & Rights,
Ltd., 551 U.S. 308, 322 (2007)).
Rule 12(b)(6) motion to dismiss, the Court considers whether
the Plaintiff's Complaint satisfies the liberal pleading
standard enunciated in Twombly and Iqbal.
Defendants Lakeland and ProSight move to dismiss the
Plaintiff's claim that the bus driver was negligent on
the ground that the Plaintiff's allegations are legal
conclusions insufficient to support a claim for relief.
Defendants contend that the Plaintiff's allegations fail
to state a claim for two reasons. First, Defendants argue
that Mr. Charles-and not the bus driver-is presumed to be
negligent as a motorist changing lanes. Second, ...