Smith v. Lynk

          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 ...