Opinion
No. 5:16-cv-002-DPM
11-08-2016
JIMMY G. SMITH PLAINTIFF v. CRETE CARRIER CORPORATION and CURTIS PEAVY, Individually DEFENDANTS
ORDER
1. Crete's motion for judgment on the pleadings, No 22, is granted. Smith's claims — as pleaded — are too thin to avoid the bar imposed by Elrod v. G & R Construction Company, 275 Ark. 151, 628 S.W.2d 17 (1982) and Kyser v. Porter, 261 Ark. 351, 548 S.W.2d 128 (1977). The "policies and procedures" exception recognized in McLane v. Rich Transport, Inc., No. 2:11-cv-101-KGB (E.D. Ark. 9 August 2012) and Regions Bank v. White, No. 4:06-cv-1475-JLH (E.D. Ark. 24 September 2009) might salvage an independent claim against the trucking company — if Smith had pleaded any particulars about Crete policies and this accident. He hasn't. The deadline to request pleading amendments has passed. The Court would be flexible on that point if discovery had turned up an applicable policy. But Smith has not given any specifics in his responding papers about policies or procedures in play that have been revealed in discovery, which has been going on for a while. All material things considered, the direct claims against Crete are ready for decision. And they are dismissed with prejudice.
2. A side note. Back in July the Court granted as modified the parties' motion for a protective order. By 15 November 2016, please send the final version to chambers for signature and entry, or file a joint notice advising the Court that no such order is needed.
So Ordered.
/s/_________
D.P. Marshall Jr.
United States District Judge
8 November 2016