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Shipley v. Lakeland Tours LLC

United States District Court, E.D. Louisiana

October 23, 2017


         SECTION “L” (2)


          ELDON E. FALLON United States District Judge

         Before the Court is Defendants Lakeland Tours, LLC and ProSight Specialty Insurance's motion to dismiss.[1] 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.

         I. BACKGROUND

         This 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. Id.

         On the 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.

         On 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).


         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)).

         Under 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 unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

         In 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 678).

         To 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)).


         On a 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, ...

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