Akinseye et al v. Bryant

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
MARCUS AKINSEYE; BOSE
AKINSEYE; MIRACLE OGUNLADE;
DAVIDA AKINSEYE; DANIELA
AKINSEYE; and DEBORAH AKINSEYE 	PLAINTIFFS
v. 	Case No. 6:23-cv-06010
KINSEY MARIE BRYANT 	DEFENDANT
ORDER
Before the Court is a Motion to Dismiss filed by Defendant Kinsey Marie Bryant. (ECF
No. 23). 	Plaintiffs Marcus Akinseye, Bose Akinseye, Miracle Ogunlade, Davida Akinseye,
Daniela Akinseye, and Deborah Akinseye (“Plaintiffs”) have responded. (ECF No. 25). The Court
finds the matter ripe for consideration.
I. 	BACKGROUND
On January 23, 2023, Plaintiffs filed their Complaint alleging two claims against
Defendant: (1) negligence and (2) negligence per se. 	(ECF No. 2, at 3-4). 	On April 3, 2024,
Defendant filed the instant motion arguing that Arkansas law does not recognize an independent
negligence per se claim and that Plaintiff’s negligence per se claim should be dismissed. (ECF
No. 24, at 1). On April 18, 2024, Plaintiffs responded, and agreed that negligence per se is not an
independent claim pursuant to Arkansas law. 	(ECF No. 25, at 1-2). 	Plaintiffs also request
permission to file an attached amended Complaint that would remove the negligence per se claim
and move the statutes contained in the negligence per se claim section to the negligence claim
section. (ECF No. 25, at 2; ECF No. 25-1, at 3-4).
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II. 	STANDARD OF REVIEW
Though Defendant labeled her motion as one pursuant to Rule 12(b)(6), such a motion must
have been filed before she filed her answer. See Fed. R. Civ. P. 12(b) (“A motion asserting any of
these defenses must be made before pleading if a responsive pleading is allowed.”). Therefore,
the Court will evaluate Defendant’s motion as one seeking judgment on the pleadings pursuant to
Rule 12(c). See Patrick v. Rivera-Lopez, 708 F.3d 15, 18 (1st Cir. 2013) (noting that an untimely
motion pursuant to Rule 12(b)(6) should be treated as a motion pursuant to Rule 12(c)); Jones v.
Greninger, 188 F.3d 322, 324 (5th Cir. 1999) (noting a district court should construe a Rule 12(b)
motion to dismiss filed after pleadings are closed as a motion pursuant to Rule 12(c)); Edwards v.
City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999) (noting that the defendants’ motion to dismiss
pursuant to Rule 12(b)(6) must be construed as a motion pursuant to Rule 12(c) because it was
filed after their answer). 	This distinction does little to alter the Court’s analysis because the
standard for evaluating a motion under Rule 12(b)(6) and Rule 12(c) is practically identical. Ashley
Cnty., Ark. v. Pfizer, Inc., 552 F.3d 659, 665 (8th Cir. 2009).
A pleading must state “a short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). To meet this standard and to survive a Rule 12(b)(6)
motion, a complaint need only state factual allegations sufficient to raise a right to relief above the
speculative level that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (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.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). Courts deciding a Rule 12(c) motion are required to accept as
true the complaint’s well-pled allegations and must resolve all inferences in the plaintiff’s favor.
Wishnatsky v. Rovner, 433 F.3d 608, 610 (8th Cir. 2006). However, this tenet does not apply to
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legal conclusions, “formulaic recitation of the elements of a cause of action,” or naked assertions
which are so indeterminate as to require further factual enhancement. Braden v. Wal-Mart Stores,
Inc., 588 F.3d 585, 594 (8th Cir. 2009). “Judgment on the pleadings is appropriate only when there
is no dispute as to any material facts and the moving party is entitled to judgment as a matter of
law.” Wishnatsky, 433 F.3d at 610.
When considering a motion for judgment on the pleadings, courts must generally ignore
all materials outside the pleadings. Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th
Cir. 1999). However, courts may consider “some materials that are part of the public record or do
not contradict the complaint . . . as well as materials that are necessarily embraced by the
pleadings.” Id. (internal quotation marks omitted). “If, on a motion under Rule 12(b)(6) or 12(c),
matters outside the pleadings are presented to and not excluded by the court, the motion must be
treated as one for summary judgment under Rule 56.” Fed. R. Civ. P. 12(d).
III. 	DISCUSSION
The main issue before the Court is whether Plaintiffs’ independent claim of negligence per
se against Defendant should be dismissed. “Under Arkansas law, the violation of a statue is only
evidence of negligence and does not constitute negligence per se.” Rodriguez v. Mena Hosp.
Comm’n, No. 2:23-CV-2002, 2023 WL 7198441 (W.D. Ark. Nov. 1, 2023) (citation omitted).
“Arkansas is in the minority of states that takes the view that the violation of a statute is not
negligence per se, but is merely one piece of ‘evidence a jury may consider in determining whether
a defendant is guilty of negligence.”” Loftis v. Credit Acceptance Corp., No. 4:10-CV-00496 BSM,
2011 WL 976621, at *6 (E.D. Ark. Mar. 18, 2011) (citation omitted). Arkansas law flatly does not
recognize negligence per se as an independent claim, only as evidence to be considered when
determining if a defendant is guilty of negligence. 	Further, Plaintiffs acknowledges that their
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independent negligence per se claim is not legally cognizable under Arkansas law. Thus, the Court
finds that Plaintiffs cannot bring an independent claim for negligence per se against Defendant.
IV. 	CONCLUSION
Accordingly, the Court finds that Defendant’s Motion to Dismiss should be and hereby is
GRANTED. 	Plaintiffs’ independent claim for negligence per se is hereby DISMISSED
WITHOUT PREJUDICE.1
IT IS SO ORDERED, this 4th day of March, 2025.
/s/ Susan O. Hickey
Susan O. Hickey
Chief United States District Judge
1The Court notes that because Plaintiffs may not amend as a matter of course at this stage, now “a party may amend
its pleading only with the opposing party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). If Plaintiffs
wish to amend their Complaint they should file a separate motion on the docket for the Court’s consideration.
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