Opinion

Esmond v. Brown

Court
District Court, W.D. Oklahoma
Filed
Sep 16, 2024
Cited by
0 cases
Authority
More cited than 31.8%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

PAUL ESMOND, )

)

Plaintiff, )

)

v. ) Case No. CIV-24-00804-JD

)

THOMAS BROWN, individually; and )

DANNY HERMAN TRUCKING, INC., )

a Tennessee Corporation, )

)

Defendants. )

ORDER

Before the Court is Defendant Danny Herman Trucking, Inc.’s (“Danny Herman”)

Partial Motion to Dismiss (“Motion”) [Doc. No. 7], which seeks dismissal of the claims

for negligent hiring, training, retention, and entrustment in Plaintiff Paul Esmond’s

(“Esmond”) petition [Doc. No. 1-2]. Danny Herman seeks dismissal for failure to state a

claim under Federal Rule of Civil Procedure 12(b)(6). Esmond responded in opposition.

(“Response”) [Doc. No. 16]. Danny Herman did not file a reply. For the reasons stated

below, the Court grants Danny Herman’s Motion.

I. BACKGROUND

On February 24, 2022, Esmond was driving in Canadian County, Oklahoma, when

he was involved in a motor vehicle accident. Pet. [Doc. No. 1-2] ¶ 4. Defendant Thomas

Brown (“Brown”) was driving the other vehicle involved in the collision; at the time of

the accident, Brown was acting in the course of his employment with Danny Herman,

which owned the vehicle Brown was driving. Id. ¶¶ 2–3, 5. As a result of the crash,

Esmond alleges he suffered personal injuries and mental anguish; he also alleges he

incurred medical expenses and damage to his vehicle. Id. ¶¶ 8, 10.

Esmond filed this action against Danny Herman in the District Court of Canadian

County, Oklahoma, seeking compensatory and punitive damages under a theory of

respondeat superior liability for Brown’s alleged negligence, as well as claims for

negligent hiring, training, retention, and negligent entrustment. Id. ¶¶ 5–6, 12. Danny

Herman removed the action to this Court based on diversity of citizenship. Notice of

Removal [Doc. No. 1] at 1. Danny Herman moves to dismiss Esmond’s claims for

negligent hiring, training, retention, and entrustment, arguing that the petition does not

allege sufficient facts to state a claim. Motion at 1. Danny Herman also argues that, as a

matter of Oklahoma law, Jordan v. Cates, 1997 OK 9, 935 P.2d 289, bars recovery on

these claims since Danny Herman has stipulated that Brown was acting within the scope

of his employment. Id.

II. LEGAL STANDARD

“To survive a motion to dismiss” under Rule 12(b)(6), “a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 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.” Id. Under this standard, the Court must “accept the

well-pleaded facts alleged as true and view them in the light most favorable to the

plaintiff.” Clinton v. Sec. Benefit Life Ins. Co., 63 F.4th 1264, 1275 (10th Cir. 2023).

However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice,” and the Court must “draw on its judicial

experience and common sense” to determine whether a complaint states a plausible claim

for relief. Iqbal, 556 U.S. at 678–79. “In other words, dismissal under Rule 12(b)(6) is

appropriate if the complaint alone is legally insufficient to state a claim.” Brokers’

Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d 1081, 1104–05 (10th Cir. 2017).

III. ANALYSIS

In Oklahoma, an employer “may be held liable for negligence in hiring,

supervising or retaining an employee. . . . if—at the critical time of the tortious

incident—[] the employer had reason to believe that the person would create an undue

risk of harm to others.” N.H. v. Presbyterian Church (U.S.A.), 1999 OK 88, ¶ 20, 998

P.2d 592, 600. “The critical element for recovery” in such cases “is the employer’s prior

knowledge of the servant’s propensities to create the specific danger resulting in

damage.” Id. ¶ 21, 998 P.2d at 600. Oklahoma courts frequently consider negligent

training claims alongside claims for negligent hiring, supervision, and retention; these

courts impose the same scienter requirement for all of these claims. E.g., Brown v.

Muldrow Pub. Schs., Case No. 120,934, 2024 OK CIV APP 20, ¶ 23, 2024 WL 4024661,

at *6 (filed July 17, 2024; mandate issued Aug. 9, 2024) (explaining that a “claim for

negligent supervision and training requires a showing that an employer met

the . . . elements of negligence during the ‘hiring, supervising, or retaining’ of an

employee,” then reciting the elements from Presbyterian Church (citation omitted)). “In

essence,” when facing claims of negligent hiring, training, and retention, “an employer

may bear liability of an employee’s unreasonable or injurious conduct upon a third party

if said conduct was reasonably foreseeable.” Id.

“To support an actionable claim for negligent entrustment of an automobile,” a

plaintiff must demonstrate that: (1) “a person who owns or has possession and control of

an automobile allowed another driver to operate the automobile”; (2) “the person knew or

reasonably should have known that the other driver was careless, reckless and

incompetent”; and (3) “an injury was caused by the careless and reckless driving of the

automobile.” Green v. Harris, 2003 OK 55, ¶ 23, 70 P.3d 866, 871. “Liability for

negligent entrustment arises from the act of entrustment, not the relationship of the

parties.’” Sheffer v. Carolina Forge Co., 2013 OK 48, ¶ 17, 306 P.3d 544, 550.

Danny Herman argues that Esmond “has failed to plead any facts that support the

bare conclusion that Danny Herman was negligent in its hiring, training, and retention of

Thomas Brown.” Motion at 6. Regarding the negligent entrustment claim, Danny Herman

argues that Esmond “makes a conclusory allegation with no specifics as to what Danny

Herman knew or should have known about Brown or his driving ability.” Id. at 7. The

Court agrees. In his response, Esmond acknowledges that for negligent hiring, retention,

and training claims, liability hinges on “whether the employer knew or should have

known of the circumstances in the employee’s background which would create an

unreasonable risk of injury to persons with whom the employee could reasonably expect

to interact.” Response at 10 n.3. Yet the entirety of the allegations in Esmond’s petition

regarding these claims reads: “Defendant, Danny Herman Trucking, Inc. a Tennessee

Corporation was negligent in its hiring, training, and retention of the Defendant, Thomas

Brown; and negligent in its entrustment of its vehicle to him.” These conclusory

statements fail to allege any facts that would allow the Court to infer that Danny Herman

“had reason to believe that [Brown] would create an undue risk of harm to others,”

Presbyterian Church (U.S.A.), 1999 OK 88, ¶ 20, 998 P.2d at 600, or that Danny Herman

“knew or reasonably should have known that [Brown] was careless, reckless and

incompetent,” Green, 2003 OK 55, ¶ 23, 70 P.3d at 871. Accordingly, the Court

dismisses Esmond’s claims of negligent hiring, training, retention, and entrustment.1

In his response, Esmond “requests leave to amend his State Court Petition and file

an Amended Complaint to further plead and/or cure any deficiencies that the Court finds

may exist.” Response at 11.2 Federal Rule of Civil Procedure 15(a)(2) instructs that “[t]he

court should freely give leave” to amend pleadings “when justice so requires.” Where the

1 Because it dismisses these claims for insufficiency of the pleadings, the Court

need not address Danny Herman’s alternate argument for dismissal under Jordan v.

Cates, 1997 OK 9, 935 P.2d 289.

2 In the Certificate of Conference section of his response, Esmond notes that the

parties have agreed to request a stay “to await the Oklahoma Supreme Court’s decision in

Richardson v. Sibley, which will presumabl[y] have a direct impact on Defendant’s

Motion for Partial Motion to Dismiss.” Response at 1–2. In support for this request,

Esmond cites Taylor v. Juma, No. CIV-23-132-D, 2024 WL 3013838 (W.D. Okla. June

14, 2024), in which the court stayed a factually similar case pending the resolution of

Richardson v. Sibley.

The request for a stay in the response is not proper. Under Local Civil Rule 7.1(c),

“A response to a motion may not also include a motion or a cross-motion made by the

responding party.” If the parties wish to request a stay, they must move for such relief in

a separate motion under Federal Rule of Civil Procedure 7(b). Regardless, the Court

concludes that Taylor is distinguishable because that order was issued at the summary

judgment stage. Taylor, 2024 WL 3013838, at *1 & n.1. The Court does not prejudge a

proper motion for a stay but cautions the parties that it may not be appropriate at this

early stage in the proceedings.

party has “expressed a willingness to amend,” and “‘if it is at all possible that the party

against whom the dismissal is directed can correct the defect in the pleading or state a

claim for relief, the court should dismiss with leave to amend.’” Brever v. Rockwell Int’l

Corp., 40 F.3d 1119, 1131 (10th Cir. 1994) (quoting 6 C. Wright & A. Miller, Federal

Practice & Procedure § 1483, at 587 (2d ed. 1990)). Here, because the deficiencies in

Esmond’s complaint are potentially curable, the Motion was directed at a petition drafted

under state (versus federal) pleading standards in this removed action, and Esmond seeks

the ability to amend his pleading, the Court dismisses these claims without prejudice.

Should Esmond wish to amend his complaint, he must follow the Federal and Local Civil

Rules of Procedure. Cf. LCvR7.1(c) (“A response to a motion may not also include a

motion or a cross-motion made by the responding party.”); see also LCvR15.1

(explaining that a party moving to amend a pleading under Federal Rule of Civil

Procedure 15 “must attached the proposed pleading as an exhibit to the motion”).3

IV. CONCLUSION

For these reasons, the Court GRANTS Danny Herman’s Partial Motion to Dismiss

[Doc. No. 7]. Esmond’s claims for negligent hiring, training, retention, and entrustment

are dismissed without prejudice to his right to move to amend his petition.

3 Before filing any motion for leave to amend, the Court requires the parties to

confer to determine if they can resolve any disputes and to avoid further motion practice

on the issues.

IT IS SO ORDERED this 16th day of September 2024.

ei W. DISHMAN

UNITED STATES DISTRICT JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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