United States District Court, W.D. Texas, Waco Division
RICHARD G. BENTON, Plaintiff,
WHITESELL-GREEN, INC., NEW ACTON MOBILE INDUSTRIES, LLC, AND WILLIAMS SCOTSMAN, INC., Defendants.
ORDER GRANTING DEFENDANTS NEW ACTON MOBILE
INDUSTRIES, LLC AND WILLIAMS SCOTSMAN, INC.'S MOTION TO
ALBRIGHT, UNITED STATES DISTRICT JUDGE.
the Court is Defendants New Acton Mobile Industries, LLC
(“New Acton”) and Williams Scotsman, Inc.'s
(“WSI”) Combined Motion to Dismiss Plaintiff
Richard G. Benton's Second Amended Original Complaint
pursuant to Rule 12(c). ECF No. 31. Plaintiff filed a timely
Response on November 14, 2019. ECF No. 32. Defendants New
Acton and WSI filed a Reply on November 20, 2019. ECF No. 33.
Plaintiff filed a sur-reply to Defendants' Reply absent
leave of the Court on November 21, 2019. ECF No. 34. Pursuant
to Local Rule CV- 7(f)(1), the Court has sua sponte stricken
Plaintiff's sur-reply. The Court has considered the
Motion, all relevant filings, and the applicable law. For the
reasons set forth below, the Court finds that Defendants'
Motion should be GRANTED.
factual background behind Plaintiff's claims are sparse
and difficult for the Court to decipher. However, the Court
will attempt to provide some background for this Order.
what the Court can gather, the Plaintiff, a resident of North
Carolina, was injured on or about May 7, 2018 in Bell County,
Texas when he “tripped and fell while walking through
an egress door” allegedly on Defendant Whitesell-Green,
Inc.'s (“WGI”) property. Pl.'s Second Am.
Compl., ECF No. 15 at ¶ 9. According to the Plaintiff,
he was an invitee on WGI's premises. Id. at
¶ 9. The “egress door” allegedly had an
eight and a half inch drop off on the exterior side of the
door. Id. Because the door was not at the same
elevation on both sides of the door, Plaintiff contends the
unlevel door was a condition on Defendants' premises that
posed an unreasonable risk of harm. Id.
Plaintiff claims that Defendants New Acton and WSI owned the
premises in question and that WGI was renting the premises.
Id. at ¶ 10-11. Additionally, the Plaintiff
claims that New Acton and WSI were the general contractors
that constructed the premises in question and installed the
exterior steps where the Plaintiff was injured. Id.
at ¶ 21-22. The Plaintiff alleges that Defendants New
Acton and WSI had a duty to use ordinary care to ensure that
the premises it constructed did not present a danger to the
Plaintiff. Id. at ¶ 21. According to
the Plaintiff, New Acton and WSI breached this duty which
“proximately caused injury to Plaintiff.”
Id. at ¶ 21. However, the Plaintiff also claims
that “L & I Transport, LLC delivered and set up the
trailer and steps that the Plaintiff fell
on.” Id. at ¶ 17. Despite the
unclear allegations of who constructed the steps, Plaintiff
alleges that New Acton and WSI “incorrectly installed
the exterior steps where Plaintiff was injured.”
Id. at ¶ 22. The Plaintiff alleges that
“such actions proximately caused injury to
filed his Complaint on February 20, 2019 in the 169th
Judicial District of Bell County, Texas. ECF No. 1 at Ex. B.
Defendants Whitesell-Green, Inc. (“WGI”), New
Acton Mobile Industries, LLC (“New Acton”), and
Williams Scotsman, Inc. (“WSI”) removed the case
to this Court on April 2, 2019. ECF No. 1.
2, 2019, Plaintiff sought leave from the Court to file
Plaintiff's First Amended Original Complaint, which was
granted on July 3, 2019. ECF No. 9, 10. On August 2, 2019
Plaintiff again sought leave from the Court to file
Plaintiff's Second Amended Original Complaint, which was
granted on August 13, 2019. ECF No. 14, 15. Defendants New
Acton and WSI filed this Motion to Dismiss on November 11,
2019. ECF No. 31.
motion for judgment on the pleadings under Rule 12(c) is
subject to the same legal standard as a motion to dismiss
under Rule 12(b)(6). Doe v. MySpace, Inc., 528 F.3d
413, 418 (5th Cir. 2008). Upon motion or sua sponte, a court
may dismiss an action that fails to state a claim upon which
relief may be granted. Fed.R.Civ.P. 12(b)(6). In deciding a
Rule 12(b)(6) motion to dismiss for failure to state a claim,
the court accepts all well-pleaded facts as true, viewing
them in the light most favorable to the nonmovant. In re
Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th
Cir. 2007). However, a court need not blindly accept each and
every allegation of fact; properly pleaded allegations of
fact amount to more than just conclusory allegations or legal
conclusions "masquerading as a factual conclusion."
Taylor v. Books A. Million, Inc., 296 F.3d 376, 378
(5th Cir. 2002); Bell Atlantic Corp v. Twombly, 550
U.S. 544, 555 (2007); Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009).
survive the motion to dismiss, a nonmovant must plead enough
facts to state a claim to relief that is plausible on its
face. Twombly, 550 U.S. at 570. The court determines
whether the plaintiff has stated both a legally cognizable
and plausible claim; the court should not evaluate the
plaintiff's likelihood of success. Lone Star Fund V.
(U.S.), LP v. Barclays Bank PLC, 594 F.3d 383, 387 (5th
Cir. 2010). Based upon the assumption that all the
allegations in the complaint are true, the factual
allegations must be enough to raise a right to relief above
the speculative level. Twombly, 550 U.S. at 555.
the nonmovant pleads factual content that allows the court to
reasonably infer that the movant is liable for the alleged
misconduct, then the claim is plausible on its face.
Iqbal, 556 U.S. at 678. The plausibility standard,
unlike the “probability requirement, ” requires
more than a sheer possibility that a defendant acted
unlawfully. Id. The pleading standard announced in
Rule 8(a)(2) does not require detailed factual allegations
but demands greater specificity than an unadorned
Fed.R.Civ.P. 8(a)(2); Iqbal, 556 U.S. at 678. A
pleading offering “labels and conclusions” or
“a formulaic recitation of the elements of a cause of
action” will not suffice. Twombly, 550 U.S. at
555. Nor does a complaint comply with the standard if it
tenders “naked assertion[s]” ...