United States District Court, D. Nebraska
TIMOTHY E. RAND, an individual; Plaintiff,
JONATHAN P. STANOSHECK, an individual; and ASCHOFF CONSTRUCTION, INC., a Nebraska corporation; Defendants.
MEMORANDUM AND ORDER
Smith Camp, Senior United States District Judge
matter is before the Court on the Motion for Partial Judgment
on the Pleadings, ECF No. 32, filed by Defendants Jonathan P.
Stanosheck and Aschoff Construction, Inc. For the reasons
stated below, the Motion will be granted.
following facts are those stated in Plaintiff's Amended
Complaint, ECF No. 12, and, unless otherwise indicated,
admitted in Defendants' Amended Answer, ECF No. 31.
Timothy E. Rand is a resident of Salix, Iowa. Defendant,
Jonathan P. Stanosheck, is a resident of Osmond, Nebraska,
and is employed by Aschoff Construction, Inc. (Aschoff), a
Nebraska Corporation with its principal place of business in
November 20, 2014, Rand was traveling eastbound on Highway 84
in Cedar County, Nebraska, where he collided with a vehicle
as it entered the intersection of Highway 84 and 568th
Avenue. Rand has alleged multiple counts of negligence
against Stanosheck and Aschoff.
filed this action against Defendants on October 11, 2018, ECF
No. 1, and filed his Amended Complaint on January 3, 2019,
ECF No. 12. Defendants filed their Answer on February 1,
2019, ECF No. 18, and filed an Amended Answer on May 24,
2019, ECF No. 31. None of the parties disputes that Nebraska
law governs in this case.
alleges that Stanosheck negligently failed to observe traffic
controls and, as a result, Rand suffered personal and
pecuniary injuries. Rand claims that Stanosheck's
negligence occurred in the scope of his employment with
Aschoff, and that Aschoff is vicariously liable under a
theory of respondeat superior. Rand also alleges direct
negligence against Aschoff because “[a] reasonable and
ordinarily prudent employer . . . would not have hired
Defendant Stanosheck and allowed him to operate its vehicle
on the public roadways.” ECF No. 12 at ¶ 20.
Included in the complaint's prayer for relief is a
request for punitive damages to be paid to the Common School
Fund of the State of Nebraska.
move for partial judgment on the pleadings to dismiss
Rand's negligent hiring claim against Aschoff. Aschoff
argues that the negligent hiring claim is moot because
Aschoff admits that it is vicariously liable for any
liability that may be attributed to Stanosheck. Defendants
also move to dismiss the request for punitive damages.
Defendants argue that the Nebraska Constitution precludes
Rand from requesting punitive damages, and that he has no
standing to request that it be paid to the schools.
motion for partial judgment on the pleadings under Rule 12(c)
is reviewed under the same standard as a motion to dismiss
under Rule 12(b)(6), Ginsburg v. InBev NV/SA, 623
F.3d 1229, 1233 n.3 (8th Cir. 2010); Westcott v. City of
Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990), and is
“appropriate where no material issue of fact remains to
be resolved and the movant is entitled to judgment as a
matter of law.” Minch Family LLLP v. Buffalo-Red
River Watershed Dist., 628 F.3d 960, 965 (8th Cir. 2010)
(quoting Faibisch v. Univ. of Minn., 304 F.3d 797,
803 (8th Cir. 2002)).
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)(2). To satisfy this
requirement, a plaintiff must plead “enough facts to
state a claim to relief that is plausible on its face.”
Corrado v. Life Inv'rs Ins. Co. of Am., 804 F.3d
915, 917 (8th Cir. 2015) (quoting Bell Atlantic 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.”
Barton v. Taber, 820 F.3d 958, 964 (8th Cir. 2016)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Zink v. Lombardi, 783 F.3d 1089,
1098 (8th Cir. 2015) (quoting Iqbal, 556 U.S. at
678), cert. denied, 135 S.Ct. 2941 (2015). The
complaint's factual allegations must be “sufficient
to ‘raise a right to relief above the speculative
level.'” McDonough v. Anoka Cty., 799 F.3d
931, 946 (8th Cir. 2015) (quoting Twombly, 550 U.S.
at 555). The Court must accept factual allegations as true,
but it is not required to accept any “legal conclusion
couched as a factual allegation.” Brown v. Green
Tree Servicing LLC, 820 F.3d 371, 373 (8th Cir. 2016)
(quoting Iqbal, 556 U.S. at 678). Thus, “[a]
pleading that offers ‘labels and conclusions' or
‘a formulaic recitation of the elements of a cause of
action will not do.'” Ash v. Anderson
Merchandisers, LLC, 799 F.3d 957, 960 (8th Cir. 2015)
(quoting Iqbal, 556 U.S. at 678), cert.
denied, 136 S.Ct. 804 (2016).
motion to dismiss, courts must rule “on the assumption
that all the allegations in the complaint are true, ”
and “a well-pleaded complaint may proceed even if it
strikes a savvy judge that actual proof of those facts is
improbable, and ‘that a recovery is very remote and
unlikely.'” Twombly, 550 U.S. at 555 &
556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236
(1974)). “Determining whether a complaint states a
plausible claim for relief . . . [is] a context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense.” Mickelson v. Cty. of
Ramsey, 823 F.3d 918, 923 (8th Cir. 2016) (alteration in
original) (quoting Iqbal, 556 U.S. at 679).
with respect to a motion for judgment on the pleadings,
“[t]he movant has the burden of ‘clearly
establish[ing] that there are no material issues of fact and
that it is entitled to judgment as a matter of
law.'” Levitt v. Merck & Co., Inc.,
No. 17-2630, 2019 WL 418018, at *1, --F.3d-- (8th Cir. Feb.