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ROSS v. KIA MOTORS CORP.

December 9, 2005.

MILDRED ROSS, as next friend of LE'SHEA KENNIMER, a minor, BRIAN KENNIMER, a minor, and CAYLA KENNIMER, a minor
v.
KIA MOTORS CORP. and KIA MOTORS AMERICA, INC. v. TANYA KENNIMER.



The opinion of the court was delivered by: DON BUSH, Magistrate Judge

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Before the Court is Third Party Defendant Tanya Kennimer's Rule 12(b)(6) Motion to Dismiss Third Party Complaint (Docket #42). Kia Motors Corp. and Kia Motors America, Inc. (hereafter "Defendants") timely responded to the motion and contemporaneously filed an Unopposed Motion for Leave to Designate Tanya Kennimer as a Responsible Third Party, which motion the Court granted. Having considered the motion to dismiss and Defendants' response, the Court finds that Ms. Kennimer's motion to dismiss should be denied.

This action arises out of an automobile accident which occurred on August 3, 2001. Tanya Kennimer was driving a Kia Rio in Van Alstyne, Texas and was involved in a collision with Bufford Ragsdale, who was driving a pickup truck. John Kennimer, Tanya Kennimer's son, was fatally injured while sitting in the rear middle seat. His two siblings were sitting next to him, but suffered no major physical injuries.

  Plaintiffs, represented by Mildred Ross, filed this action in the United States District Court for the Eastern District of Texas, Marshall Division, on July 28, 2004 against Defendants for negligent design, manufacture, assembly, marketing, and testing of the vehicle in question. Essentially, Plaintiffs alleged that the vehicle was not crashworthy. Defendants filed a third party complaint against Tanya Kennimer on August 25, 2004. The case was transferred to the Sherman Division on September 30, 2005.

  Ms. Kennimer never answered the third party complaint or otherwise made an appearance while the case was pending in the Marshall Division. However, nearly a year later, when the case was transferred to Sherman, she filed a motion to dismiss and answer in this court. Ms. Kennimer requests dismissal on the following three grounds: (1) the statute of limitations bars any action against her; (2) she is a settling person; and (3) since Plaintiffs' underlying claim is a products liability "crashworthiness" claim, any alleged negligence on the part of Ms. Kennimer is neither relevant nor admissible. The Court will address each ground for dismissal in turn.

  Prior decisions of both the United States Supreme Court and the Fifth Circuit Court of Appeals have made it clear that motions to dismiss for failure to state a claim upon which relief can be granted should not be granted lightly. For a complaint to be dismissed for failure to state a claim, it must appear "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Reeves v. City of Jackson, Mississippi, 532 F.2d 491 (5th Cir. 1976).

  Absent a claim which is obviously insufficient, a court should not grant a Rule 12(b)(6) motion to dismiss, thereby denying the plaintiff an opportunity to develop facts to support his complaint. Moreover, sufficient procedures are available to a defendant to seek summary disposition of a lawsuit after a plaintiff has been ...


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