Davenport v. Hensley et al, No. 4:2021cv02311 - Document 10 (S.D. Tex. 2021)
Court Description: MEMORANDUM OPINION AND ORDER - For the reasons explained, the court concludes that Plaintiff has not stated a plausible claim to relief against Transport. Accordingly, Defendant Transport Enterprise Leasing, LLC' s 3 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM is GRANTED, and Plaintiff's claim against Transport is DISMISSED with PREJUDICE...***Case terminated on 10/21/21. (Signed by Judge Sim Lake) Parties notified.(sanderson, 4)
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Davenport v. Hensley et al Doc. 10 United States District Court Southern District of Texas ENTERED IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION KAMERON DAVENPORT, § § § § § § § § § § § § § § Plaintiff, V. ASHLEY HENSLEY; SINGLE SOURCE LEASING, LLC; SINGLE SOURCE LEASING, INC.; THE KAPLAN TRUCKING COMPANY; and TRANSPORT ENTERPRISE LEASING, LLC, Defendants. October 21, 2021 Nathan Ochsner, Clerk CIVIL ACTION NO. H-21-2311 MEMORANDUM OPINION AND ORDER On June 14, 2021, plaintiff Kameron Davenport ("Plaintiff") filed this action against defendants Single Source Leasing, LLC; Single Source Leasing, Ashley Hensley; the Inc. (the "Single Source Defendants"); Kaplan Trucking Transport Enterprise Leasing, "Defendants") in the Harris County, Texas. 1 2021. 2 On July 23, Enterprise Leasing, Company ("Kaplan"); and LLC ("Transport") (collectively, 152nd Judicial District Court in Defendants removed the action on July 16, 2021, LLC's Transport filed Defenda:nt Transport Rule 12(b)(6) Motion to Dismiss Plaintiff's Original Petition, Exhibit B to Defendants' Notice of Removal ("Notice of Removal"), Docket Entry No. 1-2, p. 4. For purposes of identification all page numbers reference the pagination imprinted at the top of the page by the court's Electronic Case Filing ("ECF") system. 1 2 Notice of Removal, Docket Entry No. 1. Dockets.Justia.com ("Transport's Motion") (Docket Entry No. For the reasons 3) . explained below, Transport's Motion will be granted. I. Plaintiff April 2, Harris 2021, County, Interstate 10 was involved near the in a motor Interstate 10 Texas. 3 in Factual Background Plaintiff center lane.4 vehicle eastbound was collision in driving Plaintiff on Channelview, eastbound alleges on that Defendant Ashley Hensley was driving an eighteen-wheeler eastbound in the right lane of Interstate 10 when he made an unsafe lane change into Plaintiff's lane, colliding with the passenger side of Plaintiff's vehicle. 5 Plaintiff alleges that Hensley "was in the course and scope of his employment with and operating under the Federal Motor Carrier authority of [Kaplan] and/or Defendant Single Source Leasing, LLC, and/or Defendant Single Source Leasing, Inc." 6 Plaintiff alleges negligence and gross negligence against Hensley7 and negligent entrustment against Kaplan, the Single Plaintiff's Original Petition, Exhibit B to Notice of Removal, Docket Entry No. 1-2, p. 6; Transport's Motion, Docket Entry No. 3, p. 2. 3 Plaintiff's Original Petition, Removal, Docket Entry No. 1-2, p. 6. 4 Exhibit -B to Notice of Plaintiff's Original Petition, Exhibit B to Notice of Removal, Docket Entry No.' 1-2, p. 6; Transport's Motion, Docket Entry No. 3, pp. 2-3. 5 Plaintiff's Original Petition, Exhibit B to Notice of Removal, Docket Entry No. 1-2, p. 6; see also Transport's Motion, Docket Entry No. 3, p. 3. 6 Plaintiff's Original Petition, Exhibit Removal, Docket Entry No. 1-2, pp. 7-8. 7 -2 - B to Notice of Source Defendants, and Transport. 8 Plaintiff also alleg s negligence, gross negligence, and respondeat superior liability against Kaplan and the Single Source Defendants. 9 . Transport filed its Motion on July 23, 2021, 10 but Plaintiff has not responded. II. Standard of Review Federal Rule of Civil Procedure 12(b)(6) pC;=rmits. a party to ."failure to state a move that the court dismiss a complaint claim upon which relief can be granted." To survive a Rule 12(b)(6) motion, a plaintiff 1 s "[f]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations doubtful in fact)." (even the complaint are true Bell Atlantic Corp. v. Twombly, 1.27 S. Ct,. 1955, 1965 (2007) (internal citations omitted). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. 11 Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). III. Analysis Although Transport I s Motion was filed on July 23, Plaintiff has not filed a response. 2021, "Failure to respond to a motion will be taken as a representation of no opposition."· S.D. 8 at 8. at 9-10. 10 Transport's Motion, Docket Entry No. 3. -3- Tex. Local Rule 7.4. "However, a court cannot automatically grant a dispositive motion upon a party's failure to respond; instead, the court must consider the merits of the motion." Dasilva Transport, Inc., Civil Action No. James v. 4:19-CV-592, 2021 WL 3733017, at *2 (S.D. Tex. June 24, 2021). Plaintiff's only claim against Transport is for negligent entrustment.11 The basis for this claim is Plaintiff's allegation that "[Transport] entrusted the trailer being towed to Defendant Ashley Hensley[,]" whom Plaintiff incompetent, and/or reckless alleges 11 12 was "unlicensed, To establish liability for negligent entrustment, a plaintiff must show that (1) the owner of a vehicle entrusted it to another person; (2) that person was an unlicensed, incompetent, or reckless driver; (3) at the time of the entrustment, the owner knew or should have known that the driver was unlicensed, incompetent, or reckless; negligent; and (4) the driver was (5) the driver's negligence proximately caused plaintiff's injury. See Goodyear Tire and Rubber Co. v. Mayes, 236 S.W.3d 754, 758 (Tex. 2007) (citing Schneider v. Esperanza Transmission Co., 744 S.W.2d 595, 596 (Tex. 1987)). Plaintiff does not allege that Transport knew or should have known that Hensley was unlicensed, incompetent, or reckless. Moreover, Plaintiff alleges no facts to support his allegation that 11 Plaintiff's Original Petition, Removal, Docket Entry No. 1-2, p. 8. i2Id. -4- Exhibit B to Notice of Transport entrusted the trailer to Hensley. allege, for instance, that there was Plaintiff does not an employer/employee relationship between Transport and Hensley or that Transport leased the trailer to Hensley. Plaintiff's allegation that Transport entrusted the trailer to Hensley is the type of "mere conclusory" statement that the court need not credit when deciding on a Rule 12(b) (6) motion. See Iqbal, 129 S. Ct. at 1949. The court concludes that Plaintiff has failed to state a claim of negligent entrustment against Transport. IV. Conclusion and Order For the reasons explained above, the court concludes that Plaintiff has not stated a plausible claim to relief against Transport. Accordingly, Defendant Transport Enterprise Leasing, LLC' s Rule 12(b) (6) Motion to Dismiss (Docket Entry No. 3) is GRANTED, and Plaintiff's claim against Transport is DISMISSED with PREJUDICE. SIGNED at Houston, Texas, on this 21st day of October, 2021. SIM LAKE SENIOR UNITED STATES DISTRICT JUDGE -5-
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