United States District Court, D. Connecticut
KEVIN J. SMITH, Plaintiff,
v.
JAMES J. LYNK, Consolidated Plaintiff,
v.
AAA NORTHEAST, INC., Intervenor Plaintiff,
v.
STEPHON L. BRAYBOY, PENSKE TRUCK LEASING CORP., PENSKE TRUCK LEASING CO LP, DAWN TRANSPORTATION, L.L.C., Defendants,
v.
DAWN FOOD PRODUCTS, INC., Consolidated Defendant.
RULING AND ORDER ON MOTION TO DISMISS
VICTOR
A. BOLDEN, UNITED STATES DISTRICT JUDGE.
This
consolidated case involves a car accident with two different
Plaintiffs: James J. Lynk and Kevin Smith.
Stephon
Brayboy and Dawn Transportation, L.L.C., two of the
Defendants in this case, have moved to dismiss the Second,
Third and Fourth Counts of Mr. Lynk’s Amended Complaint
under Fed.R.Civ.P. 12(b)(6) and D. Conn. L. Civ. R. 7 for
failure to state a claim. Mot. to Dismiss, ECF No. 32 (Jan.
24, 2019) (“Mot. to Dismiss Lynk Am. Compl.”);
Memo. Sup. Mot. to Dismiss, ECF No. 32-1 (Jan. 24, 2019)
(“Memo. Sup. Mot. to Dismiss Lynk Compl.”).
On the
same day, Mr. Brayboy, Penske Truck Leasing Corp., Penske
Truck Leasing Co., L.P. (collectively, “Penske
Defendants” or “Penske”), Dawn
Transportation, L.L.C., and Dawn Food Products, Inc.
(collectively, “Dawn Defendants” or
“Dawn”) moved to dismiss the statutory and common
law recklessness counts in Mr. Smith’s Amended
Complaint under Fed.R.Civ.P. 12(b)(6) and D. Conn. L. Civ. R.
7 for failure to state a claim. Mot. to Dismiss, ECF No. 33
(Jan. 24, 2019) (“Mot. to Dismiss Smith Am.
Compl.”); Memo. Sup. Mot. to Dismiss, ECF No. 33-1
(Jan. 24, 2019) (“Memo. Sup. Mot. to Dismiss Smith Am.
Compl.”).
For the
following reasons, the Defendants’ motion to dismiss
claims in Mr. Lynk’s Amended Complaint is
GRANTED, and the Defendants’ motion to
dismiss claims in Mr. Smith’s Amended Complaint is
DENIED in part and GRANTED
in part.
FACTUAL
AND PROCEDURAL BACKGROUND
Mr.
Smith and Mr. Lynk each filed their cases separately, and the
Defendants have moved to dismiss counts in each lawsuit
separately. In this now consolidated case, the Court will set
forth the facts, as alleged separately in the two Amended
Complaints, and will then proceed with a combined procedural
history.
A.
Factual Allegations in Mr. Lynk’s Amended
Complaint[1]
“On
or about June 16, 2017, at approximately 10:22 p.m., ”
Mr. Lynk was allegedly driving south on Interstate 95
(“I-95”) at or near Exit 19 in Fairfield,
Connecticut. Lynk Am. Compl., First Count, ¶ 7. Mr. Lynk
allegedly pulled over and stopped “within the
right-hand shoulder” of I-95 behind a disabled
motorist. Id. First Count, ¶ 8. Mr. Lynk
allegedly got out of his car to assist the disabled motorist.
A flatbed truck then allegedly pulled up and parked behind
Mr. Lynk’s vehicle with its towing lights on.
Id. First Count, ¶ 9.
At that
time, Mr. Brayboy, an alleged “agent, servant, and/or
employee” of Defendant Dawn Transportation, allegedly
was, “within the scope of his employment and/or agency,
” operating a commercial freightliner “owned,
leased, maintained, and/or controlled” by Dawn.
Id. First Count, ¶ 2-3. Mr. Brayboy allegedly
was driving the freightliner “in a southerly direction
in the right lane of I-95, at or near Exit 19, in Fairfield,
Connecticut, and had reached a point in the roadway behind
the vehicles parked within the right shoulder.”
Id. First Count, ¶ 10.
While
Mr. Lynk allegedly was standing behind his vehicle, Mr.
Brayboy then allegedly “crossed into the right-hand
shoulder and, suddenly and without warning, struck the rear
end of the flatbed truck, propelling [the truck] into the
[P]laintiff and pinning the [P]laintiff under the
flatbed.” Id. First Count, ¶ 11.
Following
the incident, Mr. Lynk allegedly sustained numerous injuries,
damages, and losses, including open wounds, spine injuries,
bone fractures, pain, weakness, hemorrhage, respiratory
failure, impaired mobility, delirium, and traumatic brain
injury. Id. First Count, ¶ 13. These injuries
allegedly caused Mr. Lynk to incur “considerable
expenses” for medical care, including surgeries,
physical therapy, and medicine. Id. First Count,
¶ 14. Mr. Lynk also alleges that he “suffered a
loss of wages and/or earning capacity, and his future earning
capacity will likely be impaired . . .” and that he
will be “unable to pursue his usual activities to the
same extent as prior to the accident.” Id.
First Count, ¶ 15-16.
Mr.
Lynk repeats these allegations as to Counts Two through Six.
Id. at 9-18.
B.
Factual Allegations in Mr. Smith’s Amended
Complaint[2]
“On
June 16, 2017, at approximately 10:20 p.m., ” Mr. Smith
allegedly was dispatched by his employer, American Automobile
Association (“AAA”), “to assist the
operator of a disabled vehicle located in the right should
adjacent to the Interstate 95 [(“I-95”)]
southbound Exit 19 on-ramp in the Town of Fairfield,
Connecticut, due to a prior accident.” Smith Am. Compl.
¶ 9.
“Plaintiff’s
AAA vehicle and the vehicle of another AAA employee were
[allegedly] stopped and parked directly behind the disabled
vehicle in the right shoulder, and plaintiff and his
co-worker were outside their vehicles assisting the disabled
motorist.” Id. ¶ 10.
At that
time, Stephon Brayboy allegedly was “operating a 2016
Freightliner M2 Box Truck owned by [D]efendants Penske Truck
Leasing Corp., separately and/or as general partner of
[D]efendant Penske Truck Leasing Co., L.P. in the right-hand
lane of [I-95] southbound, when he suddenly and without
warning crossed into the right shoulder and struck the two
AAA vehicles, one of which struck [P]laintiff and threw him
violently into a concrete barrier alongside the
roadway.” Id. ¶ 12.
“At
all relevant times, ” Stephon Brayboy allegedly was
“acting as the agent, servant, and/or employee of
[D]efendants Dawn Food Products, Inc. and/or Dawn
Transportation, L.L.C., ” Id. ¶ 13.
Also
“[a]t all relevant times, [P]laintiff and/or his
coworker were [allegedly] operating ‘emergency
vehicles’ within the meaning of General Statutes
Section 14-243b.” Id. ¶ 11.
At the
time of the accident, Mr. Brayboy allegedly was driving on
only four hours and fifteen minutes of sleep, and he had
allegedly been awake for 19 hours, “of which in excess
of 18 hours was on duty, and in excess of 16 hours was spent
driving and making deliveries over a distance of 400
miles.” Id. ¶ 14-15.
“Earlier
on the evening of the accident, at approximately 8:18 p.m.,
[Mr. Brayboy] had [allegedly] been taken out of service for
ten hours by a state trooper on [I-95] southbound in
Waterford, Connecticut, for an hours of service (HOS)
violation. After waiting for the trooper to depart, however,
he resumed driving approximately 30-45 minute[s]
later.” Id. ¶ 16.
Additionally,
Mr. Brayboy allegedly was
operating the [D]efendants’ motor vehicle with: (1) the
clamp brakes out of adjustment, Axle 2, right; (2) the
automatic airbrake adjustment system not compensating for
wear; (3) the brakes out of service with greater than or
equal to 20% of the brakes found to be defective; such that
the [D]efendants’ vehicle was not safe for operation
and should have been taken out of service.
Id. ¶ 17.
Mr.
Brayboy also allegedly was driving between 65 and 70 miles
per hour in a 55 miles per hour speed zone. Id.
¶ 18.
Following
the incident, Mr. Smith allegedly sustained numerous
injuries, including lumbar disc herniation and/or aggravation
thereof, pain, contusion, tendinitis, and physical, mental,
and emotional distress. Id. ¶ 23. Mr. Smith has
allegedly incurred and/or will continue to incur
“considerable expense” for medical care,
including hospitalization, surgery, medical care and
treatment, and x-rays. Id. ¶ 24. Mr. Smith also
alleges that he “lost time from work and/or his ability
to earn a living has been impaired, ” Id.
¶ 25, and that his “ability to enjoy life’s
activities has been curtailed.” Id. ¶ 26.
B.
Procedural History
On
September 7, 2018, Kevin Smith sued Stephon Brayboy, Penske
Truck Leasing Corp., and Penske Truck Leasing Co., L.P.
(collectively, “Penske Defendants” or
“Penske”) for negligence in Connecticut Superior
Court. Notice of Removal, ECF No. 1 (Oct. 9, 2018).
On
October 9, 2018, Mr. Brayboy and Penske removed the lawsuit
to this Court. Id.
On
October 8, 2018, in a separate action arising out of the same
accident, James J. Lynk sued Stephon Brayboy and Dawn Food
Products in Connecticut Superior Court, bringing claims of
negligence, recklessness, and violation of Connecticut
General Statutes § 14-295. Notice of Removal, ECF No. 1,
Lynk v. Brayboy, 3:18-cv-01755-WWE, at 10-29 (Oct.
24, 2018).
On
October 24, 2018, Defendants in Mr. Lynk’s case also
removed his case to the District of Connecticut. Id.
at 1.
On
October 21, 2018, Mr. Smith filed a motion to amend/correct
his Complaint, Mot. to Amend/Correct, ECF No. 8 (Oct. 21,
2018) (“Mot. to Amend”), along with an Amended
Complaint, Smith Am. Compl., Ex. A, ECF No. 8-1 (Oct. 21,
2018). The Amended Complaint sought to join Dawn
Transportation, L.L.C. and Dawn Food Products, Inc.
(collectively, “Dawn Defendants” or
“Dawn”), and to add claims for recklessness and
violation of Connecticut General Statutes § 14-222. Mot.
to Amend at 3-4.
On
October 31, 2018, Mr. Brayboy and Penske filed a motion to
consolidate Mr. Lynk’s and Mr. Smith’s cases.
Consent Motion to Consolidate, ECF No. 11 (Oct. 31, 2018).
On
November 1, 2018, the Court granted the motion to consolidate
the cases. Order, ECF No. 12 (Nov. 1, 2018). The Smith and
Lynk cases now proceed together under the present caption,
Smith v. Brayboy, 3:18-cv-01671-VAB.
On
December 17, 2018, the Court granted Mr. Smith’s motion
to amend. Order, ECF No. 22 (Dec. 17, 2018).
On
December 20, 2018, Mr. Lynk filed an Amended Complaint
substituting Dawn Transportation for Dawn Food Products. Lynk
Am. Compl., ECF No. 25 (Dec. 20, 2018). Dawn Food Products
did not object.
On
January 24, 2019, Mr. Brayboy and Dawn Transportation, L.L.C.
moved to dismiss the Second, Third and Fourth Counts of Mr.
Lynk’s Amended Complaint under Fed.R.Civ.P. 12(b)(6)
and D. Conn. L. Civ. R. 7 for failure to state a claim. Mot.
to Dismiss, ECF No. 32 (Jan. 24, 2019) (“Mot. to
Dismiss Lynk Am. Compl.”); Memo. Sup. Mot. to Dismiss,
ECF No. 32-1 (Jan. 24, 2019) (“Memo. Sup. Mot. to
Dismiss Lynk Am. Compl.”).
On the
same day, Mr. Brayboy, Penske, and Dawn moved to dismiss the
statutory and common law recklessness counts in Plaintiff
Kevin Smith’s Amended Complaint under Fed.R.Civ.P.
12(b)(6) and D. Conn. L. Civ. R. 7 for failure to state a
claim. Mot. to Dismiss, ECF No. 33 (Jan. 24, 2019)
(“Mot. to Dismiss Smith Am. Compl.”); Memo. Sup.
Mot. to Dismiss, ECF No. 33-1 (Jan. 24, 2019) (“Memo.
Sup. Mot. to Dismiss Smith Am. Compl.”).
On
April 7, 2019, Mr. Smith filed a memorandum opposing
Defendants’ motion to dismiss. Memo. Opp. Mot. to
Dismiss, ECF No. 38 (Apr. 7, 2019) (“Smith
Opp.”).
The
next day, Mr. Smith filed an exhibit in support of his
opposition to the motion to dismiss. Ex. A Sup. Memo. Opp.,
ECF No. 39 (Apr. 8, 2019) (“Smith Opp. Memo.”).
On
April 12, 2019, Mr. Lynk filed an objection to
Defendants’ motion to dismiss, Opp. Mot. to Dismiss,
ECF No. 40 (Apr. 12, 2019) (“Lynk Opp.”), and a
memorandum in opposition to Defendants’ motion to
dismiss, Memo. Opp. Mot. to Dismiss, ECF No. 40-1 (Apr. 12,
2019) (“Lynk Opp. Memo.”).
On
September 19, 2019, the Court had scheduled a hearing on both
motions to dismiss, but the argument was cancelled due to a
scheduling conflict. ECF Entry (Sept. 18, 2019). The Court
decided to issue an order without argument unless one of the
parties requested argument. Id. Neither party
requested argument, so the Court proceeded without one.
II.
STANDARD OF REVIEW
A
complaint must contain a “short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a). Any claim that fails
“to state a claim upon which relief can be
granted” will be dismissed. Fed.R.Civ.P. 12(b)(6). In
reviewing a complaint under Rule 12(b)(6), a court applies a
“plausibility standard” guided by “two
working principles.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009).
First,
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Id.; see also Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (“While a
complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations . . . a
plaintiff’s obligation to provide the
‘grounds’ of his ‘entitle[ment] to
relief’ requires more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action
will not do.” (internal citations omitted)). Second,
“only a complaint that states a plausible claim for
relief survives a motion to dismiss.” Iqbal,
556 U.S. at 679. Thus, the complaint must contain
“factual amplification . . . to render a claim
plausible.” Arista Records LLC v. Doe 3, 604
F.3d 110, 120 (2d Cir. 2010) (quoting Turkmen v.
Ashcroft, 589 F.3d 542, 546 (2d Cir. 2009)).
When
reviewing a complaint under Federal Rule of Civil Procedure
12(b)(6), the court takes all factual allegations in the
complaint as true. Iqbal, 556 U.S. at 678.
The court also views the allegations in the light most
favorable to the plaintiff and draws all inferences in the
plaintiff’s favor. Cohen v. S.A.C. Trading
Corp., 711 F.3d 353, 359 (2d Cir. 2013); see also
York v. Ass’n of the Bar of the City of New York,
286 F.3d 122, 125 (2d Cir. 2002) (“On a motion to
dismiss for failure to ...