Page v. Nissan North America Inc et al

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JACQUELYN PAGE and ROBERT
MITCHELL PAGE, individually and
as next friend of minors O.P and E.P.,
Plaintiffs,
v.
NISSAN NORTH AMERICA, INC., et
al.,
Defendants.
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Civil Action No. 3:24-CV-3080-X
MEMORANDUM OPINION AND ORDER
Before the Court is Defendants Big Bass Towing Company (Big Bass) and
Martin Services, Inc.’s (Martin Servies) motion to dismiss for failure to state a claim.
(Doc. 55). The Court GRANTS the motion and DISMISSES WITHOUT
PREJUDICE the claims against Big Bass and Martin Services.
I. Background
As outlined in prior phases of this litigation, Jacquelyn Page was driving a
Ford Edge with her two young children, E.P. and O.P., in car seats produced by Chicco
and Graco. A Nissan Rogue struck her car. Jacquelyn Page and her children suffered
severe injuries.
After the accident, the Pages’ complaint alleges that the vehicles and car seats
were “towed from the crash site by Wrecker.” The complaint uses the term “Wrecker”
to refer to both Big Bass and Martin Services. Wrecker then allegedly stored both
the vehicles and the car seats and was notified by the Pages to preserve all evidence
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from the accident. Moreover, Wrecker allegedly provided the Pages with a contract
to preserve the vehicles, which the Pages signed.
But at some point afterward, Wrecker contacted the Pages several times,
advising them that they intended to break the contract and auction the vehicles.
Despite the Pages’ objections, Wrecker sold the vehicles and the child safety seats to
an auctioneer who sold and disposed of them.
The Pages subsequently brought this suit—as far as the Court can tell—
against both Big Bass and Martin Services for (1) violations of their civil rights,
(2) obstruction of justice, (3) destruction of evidence, (4) evidence tampering,
(5) intentional infliction of emotional distress, (6) breach of contract, (7) unfair and
deceptive trade practices, (8) conversion, (9) fraud and misrepresentation,
(10) fraudulent inducement, (11) unjust enrichment, (12) violations of the United
States Constitution and their civil rights, and (13) violations of the Texas Tort Claims
Act.1
II. Legal Framework
Rule 12(b)(6) authorizes dismissal when a complaint fails to “state a claim
upon which relief can be granted.”2 A pleading in federal court must state “a short
and plain statement of the claim showing that the pleader is entitled to relief.”3 In
stating their claim, the plaintiff does not have to plead detailed facts, but
1 The Court cannot discern what distinguishes the civil rights that were violated in the first
claim from those asserted in the twelfth claim.
2 FED. R. CIV. P. 12(b)(6).
3 FED. R. CIV. P. 8(a)(2).
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“[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”4 For a complaint to survive a motion to
dismiss under Rule 12(b)(6), it must allege sufficient facts “to state a claim to relief
that is plausible on its face.”5 And a claim is plausible on its face when supported by
enough facts that the Court can “draw the reasonable inference that the defendant is
liable for the misconduct alleged.”6 Additionally, “dismissal is proper if the complaint
lacks an allegation regarding a required element necessary to obtain relief.”7
When considering a Rule 12(b)(6) motion to dismiss, the Court must construe
the complaint liberally in favor of the plaintiff and accept all facts pleaded in the
complaint as true.8 That said, courts do not “accept as true legal conclusions,
conclusory statements, or naked assertions devoid of further factual enhancement.”9
III. Analysis
To begin with, the Pages’ complaint employs impermissible group pleadings.
Plaintiffs must “distinguish among those they sue and enlighten each defendant as
to his or her particular part” of the claim.10 Throughout the complaint, the Pages
refer to both Big Bass and Martin Services as “Wrecker.”11 This does not give Big
4 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
5 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
6 Iqbal, 556 U.S. at 678.
7 Allen v. Walmart Stores, LLC, 907 F.3d 170, 178 (5th Cir. 2018).
8 Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000).
9 Edmiston v. Borrego, 75 F.4th 551, 557 (5th Cir. 2023).
10 Southland Secs. Corp. v. INSpire Ins. Sols., Inc., 365 F.3d 353, 365 (5th Cir. 2004) (cleaned
up).
11 The Pages attempt to allege new facts in their Response Brief to clarify which factual
allegations about “Wrecker” relate to Big Bass and which relate to Martin Services. See Doc. 57 at 1–
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Bass or Martin Services any information about the Pages’ specific allegations against
them.
As the Court has said elsewhere, “y’all is an amazing and powerful word. The
Court does not besmirch it. But federal pleading standards entitle each defendant a
plaintiff sues to know what unlawful actions that plaintiff claims it took.”12 So the
Pages’ complaint must be dismissed on this ground.
Putting that aside, the complaint is also replete with conclusory, threadbare
allegations as to nearly all claims asserted. The Pages allege that Big Bass and
Martin Services violated their civil rights and the United States Constitution. But
the complaint fails to allege that Big Bass and Martin Services—private parties—
acted under color of law or allege facts that show that they did. Even if this claim is
premised on a conspiracy to deprive civil rights—a theory that the Pages’ response
brief seemingly suggests—the complaint does not allege facts supporting each
element. The same is true of their obstruction of justice, fraud and
misrepresentation, fraudulent inducement, unjust enrichment, unfair and deceptive
trade practices, intentional infliction of emotional distress, conversion, and Texas
Tort Claims Act claims. Each claim lacks factual allegations to support its elements
and is conclusory at best. Accordingly, these claims must be dismissed.13
3. But the Court does not consider factual allegations raised for the first time in a response to a motion
to dismiss. See Leal v. McHugh, 731 F.3d 405, 407 n.2 (5th Cir. 2013).
12 Childers v. Lifestyles Unlimited, Inc., 2023 WL 3961702, at *4 (N.D. Tex. Jun. 12, 2023)
(Starr, J.).
13 See Higgenbotham v. Connatser, 420 F. App’x 466, 468 (5th Cir. 2011).
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That said, while scant on detail, the Pages do plausibly allege a breach of
contract against one of the defendants. They state that Wrecker provided them with
a contract to preserve the vehicle, which the Pages accepted and Wrecker breached
when it sold the vehicle and car seats to the auctioneer. Once the improper group
pleading is corrected, these allegations should suffice at this stage of litigation.
The same applies to the Pages’ destruction of evidence and evidence tampering
claims. There is no general duty in the common law for an independent party to
preserve evidence.14 Texas has refused to recognize spoliation as an independent
tort.15 But where courts have found such a duty, there has been “some special
relationship or duty rising by reason of an agreement, contract statute, or other
special circumstance.”16 The Pages allege that they contracted with Wrecker to
preserve the vehicle and car seats and Wrecker sold them to a third party, which
resulted in the destruction of the vehicle and car seats. These allegations are
sufficient at this stage in the litigation to create a claim that is plausible on its face.
III. Conclusion
Accordingly, the Court DISMISSES WITHOUT PREJUDICE the Pages’
claims against Big Bass and Martin Services. The Court ORDERS the Pages to
replead and cure the defects in their complaint within twenty-eight days of the date
of this order. The changes the Pages may make in that pleading are limited to curing
14 See Holmes v. Amerex Rent-A-Car, 710 A.2d 846, 849 (D.C. 1998).
15 See Trevino v. Ortega, 969 S.W.2d 950, 952 (Tex. 1998).
16 Holmes, 710 A.2d at 849.
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the defects this Order identifies. The Pages may not add new claims or parties to the
amended pleading.
IT IS SO ORDERED this 10th day of February, 2026.
___________________________________
BRANTLEY STARR
UNITED STATES DISTRICT JUDGE
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