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 ...