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Benton v. Whitesell-Green, Inc.

United States District Court, W.D. Texas, Waco Division

January 8, 2020

RICHARD G. BENTON, Plaintiff,
v.
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 DISMISS

          ALAN D ALBRIGHT, UNITED STATES DISTRICT JUDGE.

         Before 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.

         I. Background

         A. Factual Background

         The 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.

         From 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.

         The 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.[1] 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.”[2] 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 Plaintiff.” Id.

         B. Procedural Background

         Plaintiff 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.

         On July 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.

         II. Legal Standard

         A 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).

         To 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.

         When 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 “the-defendant-unlawfully-harmed-me accusation.” 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]” ...


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