Hamby v. Baylor Trucking

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION

JERRY HAMBY, )

)

Plaintiff, )

)

v. ) CASE NO. 3:19-CV-285-WKW

) [WO]

BAYLOR TRUCKING, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

After he was seriously injured in a workplace accident, Plaintiff Jerry Hamby

filed a “shotgun complaint” against Defendant Baylor Trucking and others. Baylor

Trucking now moves to dismiss several of Hamby’s claims. It also moves for a more

definite statement of his complaint. (Doc. # 3.) Both motions are due to be granted.

I. JURISDICTION AND VENUE

The court has diversity subject-matter jurisdiction under 28 U.S.C. § 1332(a).

The named parties are completely diverse (Doc. # 1, at 3), and the court ignores the

citizenship of Defendants sued under fictitious names. See 28 U.S.C. § 1441(b)(1).

Baylor Trucking has shown that the amount in controversy exceeds $75,000. (Doc.

# 1, at 4–6.) See Williams v. Best Buy Co., 269 F.3d 1316, 1319 (11th Cir. 2001).

No one contests personal jurisdiction or venue.

II. STANDARDS OF REVIEW

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the

sufficiency of the complaint against the legal standard set forth in Rule 8: ‘a short

and plain statement of the claim showing that the pleader is entitled to relief.’”

Wilborn v. Jones, 761 F. App’x 908, 910 (11th Cir. 2019) (per curiam) (quoting Fed.

R. Civ. P. 8(a)(2)). The Supreme Court wrote the grading rubric for that test in Bell

Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662

(2009).

“To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal,

556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). This standard “is not akin to a

‘probability requirement,’ but it asks for more than a sheer possibility that a

defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). Offering

mere “labels and conclusions” or “a formulaic recitation of the elements of a cause

of action will not do.” Twombly, 550 U.S. at 555. In part, that is because legal

conclusions are not entitled to a presumption of truth. See Iqbal, 556 U.S. at 678–

81; McCullough v. Finley, 907 F.3d 1324, 1333 (11th Cir. 2018). The upshot is that

a complaint must “include factual allegations for each essential element of [each]

claim.” GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244, 1254 (11th Cir. 2012).

Rule 9(b) demands even more specificity whenever a complaint alleges fraud:

A party “must state with particularity the circumstances constituting fraud.” Fed. R.

Civ. P. 9(b). “Failure to satisfy Rule 9(b) is a ground for dismissal of a complaint.”

Corsello v. Lincare, Inc., 428 F.3d 1008, 1012 (11th Cir. 2005) (per curiam).

Under Rule 12(e), a defendant “may move for a more definite statement” of a

complaint that “is so vague or ambiguous that the party cannot reasonably prepare a

response.” Fed. R. Civ. P. 12(e). When faced with a shotgun complaint, a defendant

should move for a more definite statement under Rule 12(e). Weiland v. Palm Beach

Cty. Sheriff’s Office, 792 F.3d 1313, 1321 n.10 (11th Cir. 2015).

III. BACKGROUND

In December 2017, Jerry Hamby was loading a semi-trailer (the cargo part of

an eighteen-wheeler) in Chambers County, Alabama. The trailer was not hitched to

a tractor, and it had no front axle, so a metal stand supported its front end. But while

Hamby was inside the trailer, the metal stand suddenly broke. The trailer’s front end

crashed to the ground, and the cargo inside it tumbled. As a result, Hamby was badly

hurt. (Doc. # 1-1, at 2–3.)

Hamby later filed a personal injury lawsuit in Alabama state court. He named

Baylor Trucking, the company that owned the trailer, as a Defendant. He also named

eight fictitious Defendants: A, B, C, D, E, F, G, and X. (Doc. # 1-1, at 1–2.)1 The

1 Defendants A, B, and X allegedly designed and manufactured the trailer, and Defendants

D and E allegedly warranted that the trailer was safe. (Doc. # 1-1, at 2–3, 5, 7, 13.) “As a general

matter, fictitious-party pleading is not permitted in federal court,” Richardson v. Johnson, 598 F.3d

complaint raises seven claims against each Defendant: negligence (Count One);

liability under the Alabama Extended Manufacturer’s Liability Doctrine (Count

Two); strict products liability (Count Three); failure to warn (Count Four);

misrepresentation, fraud, suppression, and deceit (Count Five); breach of implied

warranty (Count Six); and breach of express warranty (Count Seven). (See generally

Doc. # 1-1, at 5–13.)

Baylor Trucking properly removed the action to federal court. (Doc. # 1.) See

28 U.S.C. §§ 1441(a), 1446(b); Murphy Bros. v. Michetti Pipe Stringing, Inc., 526

U.S. 344, 347 (1999). It then moved to dismiss all of Count Three and Count Five,

as well as part of Count One. (Doc. # 3.) It also moved for a more definite statement

of the complaint. (Doc. # 3.) Those motions are now ripe. (See Docs. # 10, 12.)

IV. DISCUSSION

A. Several claims are due to be dismissed under Rule 12(b)(6).

Baylor Trucking moves to dismiss Hamby’s claims for strict products liability

(Count Three) and fraud (Count Five). It also moves to dismiss Count One to the

extent that it includes a sub-claim for wantonness and willfulness. That motion is

due to be granted.

1. Hamby fails to state a valid claim for wantonness and willfulness.

Hamby refers to Count One as a negligence claim. He alleges, for example,

734, 738 (11th Cir. 2010) (per curiam), even though state court allows it, see Ala. R. Civ. P. 9(h).

that Defendants “failed to maintain the trailer stand in a reasonably safe condition”

and “should reasonably have foreseen” that he could get hurt. (Doc. # 1-1, at 5–6.)

But Hamby goes on to assert that Defendants acted wantonly and willfully:

The acts of the Defendants are gross, burdensome, willful, wanton,

oppressive, and otherwise such as to justify the imposition of punitive

damages under Alabama law. Defendant’s conduct was so egregious

that it rises to the level of conscious indifference to the safety and well-

being for users and operators of its trailer, and Plaintiff in particular, as

defined under other applicable law.

(Doc. # 1-1, at 6.) Baylor Trucking moves to dismiss this implicit sub-claim for

wantonness and willfulness. See, e.g., James v. Nationstar Mortg., LLC, 92 F. Supp.

3d 1190, 1201 (S.D. Ala. 2015) (dismissing a wantonness claim).

Under Alabama law, “wantonness” refers to “the conscious doing of some act

or the omission of some duty, while knowing of the existing conditions and being

conscious that, from doing or omitting to do an act, injury will likely or probably

result.” Stone v. Southland Nat’l Ins. Corp., 589 So. 2d 1289, 1292 (Ala. 1991); see

Ala. Code § 6-11-20(b)(3) (defining wantonness as conduct that is “carried on with

a reckless or conscious disregard of the rights or safety of others”). Wantonness is

“qualitatively different” than simple negligence; it “is not merely a higher degree of

culpability than negligence.” Ex parte Essary, 992 So. 2d 5, 9 (Ala. 2007) (cleaned

up). Wantonness is about the “state of mind with which the act or omission is done

or omitted,” and it implies “knowledge” or “consciousness” that injury is likely. Id.

(cleaned up); see also Craft v. Triumph Logistics, Inc., 107 F. Supp. 3d 1218, 1220–

21 (M.D. Ala. 2015) (discussing the definition).

Hamby does not plausibly allege that Baylor Trucking acted wantonly or

willfully. He does not, for example, allege how or why Baylor Trucking knew about

(or was conscious of) defects in the metal stand. His wantonness claim is no more

than a “formulaic recitation” of the elements of the cause of action. Iqbal, 556 U.S.

at 678 (quoting Twombly, 550 U.S. at 555). That will not do. See, e.g., Zuanich v.

Hankook Tire Am. Corp., No. 18-cv-159, 2018 WL 6709466, at *4 (M.D. Ala. Dec.

20, 2018) (dismissing a wantonness claim); Smith v. Thomas, No. 12-cv-125, 2013

WL 800697, at *7 (M.D. Ala. Mar. 4, 2013) (same). Hamby cannot simply recite a

string of adjectives; he must allege enough facts to nudge his claim “across the line

from conceivable to plausible.” Twombly, 550 U.S. at 570. Because he has not done

so, his wantonness and willfulness claim will be dismissed.

Hamby’s response is to cite three pre-Twombly decisions: Conley v. Gibson,

355 U.S. 41 (1957); Hickman v. Taylor, 329 U.S. 495 (1947); and Castillo v. Norton,

219 F.R.D. 155 (D. Ariz. 2003). He points out that Rule 8’s purpose is to give “fair

notice of what the . . . claim is and the grounds upon which it rests,” Conley, 355

U.S. at 47, and that notice pleading relies heavily on discovery, see Hickman, 329

U.S. at 500–01. His premises are true enough. See Am. Dental Ass’n v. Cigna Corp.,

605 F.3d 1283, 1288 (11th Cir. 2010). But to see if a complaint passes Rule 8, the

court must apply Twombly and Iqbal. Those decisions “categorically retired” the

pleading standard from Conley and Castillo. Simpson v. Sanderson Farms, Inc., 744

F.3d 702, 714 (11th Cir. 2014). And if a complaint does not assert a plausible claim,

it “does not unlock the doors of discovery.” Iqbal, 556 U.S. at 678; see Chudasama

v. Mazda Motor Corp., 123 F.3d 1353, 1367 (11th Cir. 1997) (“Facial challenges to

the legal sufficiency of a claim or defense, such as a motion to dismiss based on

failure to state a claim for relief, should . . . be resolved before discovery begins.”)

(footnote omitted).2

2. Hamby fails to state a valid claim for strict products liability.

Count Two of Hamby’s complaint raises a claim under the Alabama Extended

Manufacturer’s Liability Doctrine (AEMLD). (Doc. # 1-1, at 6.) But then in Count

Three, Hamby asserts a claim for strict products liability. (Doc. # 1-1, at 8.) Because

the Supreme Court of Alabama created the AEMLD as a substitute for imposing a

strict products liability regime, Count Three is due to be dismissed.

In 1976, the Supreme Court of Alabama had to decide whether to impose strict

products liability. It rejected no-fault liability. See Atkins v. Am. Motors Corp., 335

So. 2d 134, 140 (Ala. 1976) (“We do not abandon the fault concept as has been done

in some jurisdictions.”) (cleaned up); Casrell v. Altec Indus., Inc., 335 So. 2d 128,

2 In general, a plaintiff cannot avoid dismissal because she does not have enough facts to

allege a plausible claim. Rather than excuse the insufficient pleading, the lack of facts “reinforces”

the conclusion that it should be dismissed. Franklin v. Curry, 738 F.3d 1246, 1252 n.6 (11th Cir.

2013).

132 (Ala. 1976) (“We do not intend to impose a no-fault concept.”). Instead, it

created the AEMLD as an “accommodation of Alabama law to the doctrine of strict

liability.” Wyeth, Inc. v. Weeks, 159 So. 3d 649, 656 (Ala. 2014) (cleaned up). While

the AEMLD is a “hybrid form of strict liability,” Sears, Roebuck & Co. v. Haven

Hills Farm, Inc., 395 So. 2d 991, 994 (Ala. 1981) (per curiam), it is strict “only in

the sense that the manufacturer’s reasonable care in preparing the product and the

user’s privity with the manufacturer are not relevant,” Ex parte Chevron Chem. Co.,

720 So. 2d 922, 927 (Ala. 1998). The doctrine as a whole remains “firmly rooted in

. . . negligence.” Wakeland v. Brown & Williamson Tobacco Corp., 996 F. Supp.

1213, 1217 (S.D. Ala. 1998). For example, both assumption of risk and contributory

negligence are still good defenses. Atkins, 335 So. 2d at 143; Casrell, 335 So. 2d at

134; see also Dennis v. Am. Honda Motor Co., 585 So. 2d 1336, 1339 (Ala. 1991).

Because the AEMLD is Alabama’s response to strict products liability, some

courts treat “strict liability” claims as AEMLD claims. See Bodie v. Purdue Pharma

Co., 236 F. App’x 511, 517 n.9 (11th Cir. 2007); Miller v. Pfizer Inc., No. 13-cv-

1687, 2014 WL 2155020, at *2 (N.D. Ala. May 22, 2014). And at other times, courts

hold that the AEMLD subsumes strict liability claims. See Holmes v. Behr Process

Corp., No. 15-cv-0454, 2015 WL 4941379, at *2 (N.D. Ala. Aug. 19, 2015); Foster

v. Bridgestone Ams., Inc., No. 11-cv-175, 2013 WL 489162, at *2–3 (S.D. Ala. Feb.

8, 2013); see also Batchelor v. Pfizer, Inc., No. 12-cv-908, 2013 WL 3873242, at *2

(M.D. Ala. July 25, 2013) (recognizing that strict liability claims should be AEMLD

claims); Jenelle Mims Marsh, Alabama Law of Damages § 32:10, at 122 (6th ed.

Supp. 2019) (“Strict liability claims are merged into [the] AEMLD.”).

Baylor Trucking is therefore correct when it argues that Count Three fails to

state a claim. If there is any difference between Count Two and Count Three, the

switch to strict liability goes against Alabama law.3

3. Hamby fails to state a valid claim for misrepresentation, fraud,

suppression, or deceit.

In Count Five, Hamby asserts that Defendants are liable for misrepresentation,

fraud, suppression, and deceit. Allegedly, Defendants made “false and fraudulent

misrepresentations to the general public,” “fraudulently suppressed information,”

“suppressed material facts,” and “deceived” people. (Doc. # 1-1, at 11.) Cf. CNH

Am., LLC v. Ligon Capital, LLC, 160 So. 3d 1195, 1201 (Ala. 2013) (listing the four

elements of a fraudulent suppression claim); Moore v. Prudential Residential Servs.

Ltd. P’ship, 849 So. 2d 914, 923 (Ala. 2002) (listing the four elements of a fraudulent

misrepresentation claim).

But under Rule 9(b), “a party must state with particularity the circumstances

constituting fraud.” Fed. R. Civ. P. 9(b). In practice, this means a fraud claim must

allege “(1) precisely what statements or omissions were made in which documents

3 In its reply, Baylor Trucking suggests that Count Two should also be dismissed. (Doc.

# 12, at 4.) But Baylor Trucking did not move to dismiss Count Two. (See Doc. # 3, at 8, 14.)

or oral representations; (2) the time and place of each such statement and the person

responsible for making (or, in the case of omissions, not making) them; (3) the

content of such statements and the manner in which they misled the plaintiff, and;

(4) what the defendant obtained as a consequence of the fraud.” In re Galectin

Therapeutics, Inc. Sec. Litig., 843 F.3d 1257, 1269 (11th Cir. 2016); see also Ziemba

v. Cascade Int’l Inc., 256 F.3d 1194, 1202 (11th Cir. 2001). Plus, a complaint must

allege this “with respect to each defendant’s participation in the fraud.” Am. Dental

Ass’n, 605 F.3d at 1291.

Count Five does not meet this standard. Hamby does not allege the details of

any particular fraudulent or misleading statement; he simply makes general

accusations of “fraud,” “misrepresentation,” and “deceit.” Thus, Count Five will be

dismissed. See Corsello, 428 F.3d at 1012, 1015.

B. Hamby must replead his shotgun complaint under Rule 12(e).

Besides its failure to adequately plead some claims, there is another problem

with Hamby’s complaint: It is a “shotgun complaint.” So Hamby must replead it.

Rule 8 demands “a short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Shotgun complaints break Rule

8 “by failing to one degree or another to give the defendants adequate notice of the

claims against them and the grounds upon which each claim rests.” Vibe Micro, Inc.

v. Shabanets, 878 F.3d 1291, 1295 (11th Cir. 2018) (cleaned up). Of course, there

are several ways to break that rule. In some shotgun complaints, “each count adopts

the allegations of all preceding counts, causing each successive count to carry all

that came before and the last count to be a combination of the entire complaint.”

Weiland, 792 F.3d at 1321. In others, the complaint asserts “multiple claims against

multiple defendants without specifying which of the defendants are responsible for

which acts or omissions, or which of the defendants the claim is brought against.”

Id. at 1323.

Hamby’s complaint is a shotgun pleading in both of those ways. For one, the

first paragraph of each count either “incorporates herein all preceding paragraphs of

this Complaint as if re-alleged in full” (Doc. # 1-1, at 5–6, 8, 10) or “incorporates by

reference all other paragraphs as if fully set forth here” (Doc. # 1-1, at 11–13). That

makes Count Seven “a combination of the entire complaint.” Weiland, 792 F.3d at

1321. For another, the complaint asserts claims against “Defendants” as a whole or

against an unspecified “Defendant.” (Doc. # 1-1, at 5–14.) Those general terms are

“specifically intended to include the . . . fictitious defendants.” (Doc. # 1-1, at 2.)

Over and over again — at least three dozen times — the complaint fails to specify

who did what. As a result, the complaint “is so vague and ambiguous” that Baylor

Trucking cannot reasonably prepare a response to it. Fed. R. Civ. P. 12(e). Hamby

must replead and do so consistent with Rule 11. See Jackson v. Bank of Am., N.A.,

898 F.3d 1348, 1357 (11th Cir. 2018); Vibe, 878 F.3d at 1295.

V. CONCLUSION

For the reasons above, it is ORDERED that:

1. Defendant Baylor Trucking’s motion to dismiss in part (Doc. # 3) is

GRANTED;

2. Defendant Baylor Trucking’s motion for a more definite statement

(Doc. # 3) is GRANTED;

3. Plaintiff Jerry Hamby’s claims for wantonness and willfulness (Count

One) and misrepresentation, fraud, suppression, and deceit (Count Five) are

DISMISSED without prejudice;

4. Plaintiff Jerry Hamby’s claim for strict products liability (Count Three)

is DISMISSED with prejudice; and

5. Plaintiff Jerry Hamby is GRANTED until August 13, 2019, to file an

amended complaint that complies with the pleading requirements and this Order.

Failure to file an amended complaint by this deadline will result in dismissal of this

action.

DONE this 23rd day of July, 2019.

/s/ W. Keith Watkins

UNITED STATES DISTRICT JUDGE