United States District Court, W.D. Texas, San Antonio Division
ORDER ON DEFENDANTS' MOTION TO DISMISS FOR
FAILURE TO PROPERLY PLEAD
PULLIAM UNITED STATES DISTRICT JUDGE.
the Court is Defendants', Panther II Transportation, Inc.
d/b/a Panther Premium Logistics, Inc., Prime Logistics, Inc.,
and Francisco Roman Rivera, Sr. (hereinafter referred to as
Defendants”), Motion to Dismiss for Failure to Properly
Plead. After due consideration, the Court GRANTS this motion.
AND PROCEDURAL BACKGROUND
dispute arises out of an automobile accident that occurred on
September 7, 2017, in San Antonio, Texas. ECF No. 12.
Plaintiff Michael Eyer was driving an Isuzu NPR, and
Plaintiffs Jesse Salinas and Angel Yanez were passengers in
the vehicle. Id. Defendant Francisco Roman Rivera,
Sr. (“Defendant Rivera”) was operating a
Freightliner tractor when he collided with the rear end of
the Isuzu. ECF No. 52.
removal to federal court, Plaintiffs filed their First
Amended Complaint on August 17, 2018, in which they allege:
Defendants breached their duties to Plaintiffs and acted in a
manner that was negligent or negligent per se by engaging in
wrongful conduct including, but not limited to: (a) failing
to keep such a proper lookout as a person exercising ordinary
prudence would have kept under the same or similar
circumstances; (b) failing to control speed; (c) failing to
pay proper attention; (d) failing to maintain a clear and
reasonable distance between Defendant's vehicle and
Plaintiff's vehicle; and (e) failing to control the
subject vehicle so that a collision would not occur.
ECF No. 12. Plaintiffs also allege “each of
Defendants' acts and omissions, singularly or in
combination with others, constituted negligence and/or
negligence per se that proximately and substantially caused
the occurrence made the basis of this action, and the
personal injuries and damages sustained by Plaintiffs.”
filed this motion seeking dismissal of Plaintiffs'
negligence per se cause of action. ECF No. 52. Although
Defendants styled their motion as a motion to dismiss under
Federal Rule of Civil Procedure 8, the Court will construe
the motion as a request for relief under Rule
12(c). The deadline to file all motions to amend
or supplement pleadings was October 11, 2018. ECF Nos. 11,
35. Plaintiffs did respond to the motion and did not seek
leave to amend their complaint.
12(c) provides the proper authority for seeking judgment on
the pleadings after the pleadings are closed.” Channel
Source Inc. v. CTI Indus. Corp., No. 3:15-CV-0271-P, 2015 WL
13118198, at *1 (N.D. Tex. Oct. 26, 2015). Rule 12(c) states
“after the pleadings are closed-but early enough not to
delay the trial-a party may move for judgment on the
pleadings.” Fed.R.Civ.P. 12(c). “The standard for
dismissal under Rule 12(c) is the same as that for dismissal
for failure to state a claim under [Federal Rule of Civil
Procedure] 12(b)(6).” Johnson v. Johnson, 385 F.3d 503,
528 (5th Cir. 2004) (citing Great Plains Trust Co. v.
Morgan Stanley Dean Witter & Co., 313 F.3d 305, 313
n.8 (5th Cir 2002)). This Court will accept the facts
asserted in Plaintiff's complaint as true and view them
in the light most favorable to the Plaintiff.
Johnson, 385 F.3d at 529. Dismissal under Rule 12(c)
will be granted only when the Plaintiff would not be entitled
to relief under any set of facts consistent with the
complaint. Id. “Thus, the inquiry focuses on
the allegations in the pleadings and not on whether the
plaintiff actually has sufficient evidence to succeed on the
merits.” Ackerson v. Bean Dredging, LLC, 589
F.3d 196, 209 (5th Cir. 2009) (quoting Ferrer v. Chevron
Corp., 484 F.3d 776, 782 (5th Cir. 2007)).
withstand a Rule 12(b)(6) motion to dismiss, as applied in
this context, a plaintiff must plead “enough facts to
state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). “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.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). While “detailed
factual allegations” are not required, a plaintiff must
state “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. The
contents of the pleading must provide enough detail to
“give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests.” Id.
their First Amended Complaint, Plaintiffs assert facts to
support the asserted negligence causes of action, and then,
in a conclusory fashion, allege Defendants committed
negligence per se based upon the same facts.
per se occurs when the violation of a particular statute
constitutes negligence as a matter of law. Del Castillo
v. PMI Holdings N. Am. Inc., No. 4:14-CV-03435, 2016 WL
3745953, at *5 (S.D. Tex. July 13, 2016). In pleading
negligence per se, the Plaintiff must cite a particular
statute violated by the alleged conduct because
“[w]ithout a citation to a statutory provision, the
Court is unable to determine whether the facts alleged state
a violation of any statute.” Id. ...