Lacaillade v. Loignon

2011 DNH 164

• Court: District Court, D. New Hampshire
• Decided: October 7, 2011
• Docket: 10-CV-68-JD
• Status: Published

Opinion

Lacaillade v. Loignon 10-CV-68-JD 10/07/11 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Michele Lacaillade, Tavlor Lacaillade, and Andrew Lacaillade

v. Civil No. 10-cv-68-JD Opinion No. 2011 DNH 164 Loignon Champ-Carr, Inc.

O R D E R

Following the death of Jon Paul Lacaillade II, his wife and

children sued Loignon Champ-Carr, Inc. ("Loignon"), alleging

claims for, inter alia, negligence, wrongful death, negligence

per se, and loss of consortium. Loignon moves to dismiss the

plaintiffs' negligence per se claim on the ground that Maine law

which governs the issue of liability, does not recognize a cause

of action for negligence per se. The plaintiffs did not object

to the motion.

Background1

On August 25, 2008, Jon Paul Lacaillade, a New Hampshire

resident, was riding his bicycle on the side of the road

traveling east on Route 25 in Porter, Maine. A tractor-trailer,

owned and operated by Loignon, a Canadian business with a "U.S.

presence in Maine," and driven by Renald Morin, a Loignon

employee, was also traveling east on Route 25. As the truck

1The background information is taken from the plaintiffs' first amended complaint as construed under the 12(b)(6) standard approached Mr. Lacaillade to pass, he lost control of his

bicycle, fell back into the roadway, and landed under the

tractor-trailer's tires. He died instantly.

Standard of Review

When considering a motion to dismiss under Federal Rule of

Civil Procedure 12(b)(6), the court must determine whether the

facts alleged, when taken as true and in the light most favorable

to the plaintiff, state a claim on which relief can be granted.

Rederford v. U.S. Airways, Inc., 589 F.3d 30, 35 (1st Cir. 2009).

Under the notice pleading standard of Federal Rule of Civil

Procedure 8( a ) (2), a plaintiff need provide only a short and

plain statement that provides enough facts " 'to raise a right to

relief above the speculative level . . . " Ocasio-Hernandez v.

Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011) (quoting Bell Atl.

Corp. v. Twomblv, 550 U.S. 544, 555 (2007)). The court must

separate the factual allegations from any legal conclusions and

decide whether the factual allegations, taken as true, state a

plausible claim for relief. Ocasio-Hernandez, 640 F.3d at 10-11

(applying Ashcroft v. Iqbal, 129 S. C t . 1937, 1949-50 (2009) ) .

Discussion

In Count III of their complaint, the plaintiffs allege

negligence per se, stating that Loignon violated certain

provisions of the Federal Motor Carrier Safety Regulations, which

provide rules and procedures to promote safety in commercial

2 transportation. Loignon moves to dismiss the negligence per se

claim on the ground that Maine law, which governs the issue of

liability, does not provide for a cause of action for negligence

per se.

As noted, the plaintiffs have not responded to Loignon's

motion to dismiss. Under Local Rule 7.1(b), where the non-moving

party does not oppose a motion to dismiss, "[t]he court shall

deem waived any objection" to the motion. Therefore, Loignon is

entitled to dismissal on the plaintiffs' negligence per se claim.

See NEPSK, Inc. v. Town of Houlton, 283 F.3d 1, 7 (1st Cir. 2002)

("it is within the district court's discretion to dismiss an

action based on a party's unexcused failure to respond to a

dispositive motion when such response is required by local

rule"). Even if the court did not rely on Rule 7.1(b), however,

Loignon would still be entitled to dismissal of the negligence

per se claim.

It is well established that Maine does not recognize the

doctrine of negligence per se. Shaw v. Stewart's Transfer, 2010

WL 2943202, at *3 (D. Me. July 22, 2010) (citing Crowe v. Shaw,

755 A . 2d 509, 512 (D. Me. 2000)); Binette v. Dyer Library Ass'n,

688 A . 2d 898, 904 (Me. 1996). Under Maine law, the violation of

a safety statute is merely evidence of negligence, and does not

create a separate cause of action for negligence per se. Elliott

3 v. S.D. Warren Co., 134 F.3d 1, 5 (1st Cir. 1998); French v.

Willman, 599 A . 2d 1151, 1152 (Me. 1991).

The plaintiffs assert in both their amended complaint and

their opposition to Loignon's motion regarding the appropriate

choice of law that Maine law governs the issue of liability in

the case. Loignon does not dispute the applicability of Maine

law to the issue of liability. Therefore, because Maine law

applies to liability, and Maine does not recognize a cause of

action for negligence per se, Loignon is entitled to judgment on

the plaintiffs' negligence per se claim.

Conclusion

For the foregoing reasons, Loignon's motion to dismiss the

plaintiffs' negligence per se claim (document no. 28) is granted.

The plaintiffs' remaining claims are:

(1) negligence (Count I),

(2) wrongful death (Count II), and

(3) loss of consortium (Count IV).

SO ORDERED.

(X Clwio,Ih VJJoseph A. DiClerico, Jr. United States District Judge

October 7, 2011

cc: Andrew Ranks, Esq. Mark SW. Shaughnessy, Esq. William J. Thompson, Esq.