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Mullins v. Con-Way Central Express, Inc.

United States District Court, N.D. Indiana, Hammond Division

December 18, 2017

CHRISTOPHER MULLINS and JENNIFER MULLINS, Plaintiffs,
v.
CON-WAY CENTRAL EXPRESS, INC. and LB PARTNERS, Defendants. LB PARTNERS, Cross-Claimant,
v.
CON-WAY CENTRAL EXPRESS, INC. Cross-Defendant.

          OPINION AND ORDER

          RUDY LOZANO, Judge United States District Court.

         This matter is before the Court on the Motion to Dismiss Cross-Claim by XPO Logistics Freight, Inc., formerly d/b/a Con-Way Central Express, Inc. (“Con-Way”) filed on June 30, 2017 (DE #35), and the Amended Motion to Dismiss Crossclaim filed by Con-Way on June 30, 2017 (DE #36). For the reasons set forth below, the Motion to Dismiss Cross-Claim is DENIED AS MOOT (DE #35). The Amended Motion to Dismiss Crossclaim is DENIED (DE #36).

         BACKGROUND

         Plaintiffs filed a lawsuit against defendants Con-Way and LB Partners alleging that Christopher Mullins (“Mullins”) was injured as a result of an accident that occurred on the premises owned by LB Partners and occupied by Con-Way. LB Partners filed a cross claim against Con-Way, seeking indemnification based upon an indemnification provision contained in the Lease Agreement between Con-Way and LB Partners. Con-Way now moves to dismiss the cross claim.

         DISCUSSION

         As an initial matter, the Court notes that after Con-Way filed its motion to dismiss, it filed an amended motion to dismiss in which it stated that the motion to dismiss was mistakenly filed and was withdrawn and superseded by the amended motion. (DE #36 at 1 n.1.) The Court therefore denies as moot the motion to dismiss (DE #35). Standard Federal Rule of Civil Procedure 12(b)(6) allows a complaint to be dismissed if it fails to “state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). In order to survive a Rule 12(b)(6) motion, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face'.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). All well-pleaded facts must be accepted as true, and all reasonable inferences from those facts must be resolved in the plaintiff's favor. Pugh v. Tribune Co., 521 F.3d 686, 692 (7th Cir. 2008). However, pleadings consisting of no more than mere conclusions are not entitled to the assumption of truth. Iqbal, 556 U.S. at 678-79. This includes legal conclusions couched as factual allegations, as well as “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Id. at 678 (citing Twombly, 550 U.S. at 555).

         When reviewing a motion to dismiss, a court may examine “documents attached to the complaint, documents that are critical to the complaint and referred to in it, and information that is subject to proper judicial notice, ” without converting the motion to one for summary judgment. Geinosky v. City of Chicago, 675 F.3d 743, 745, n.1 (7th Cir. 2012) (collecting cases). Here, LB Partners' Cross Claim refers to and attaches the Lease Agreement, and Con-Way attached the Lease Agreement to its amended motion to dismiss. Therefore, the Court will consider the Lease Agreement without converting the amended motion to dismiss into a motion for summary judgment.

         Facts

         Plaintiffs' Amended Complaint for Damages (“Complaint”) alleges that Mullins was injured as a result of an accident that occurred on the premises owned by LB Partners and occupied by Con-Way in Gary, Indiana. (DE #28, ¶¶2-4.) The Complaint alleges that on February 5, 2015, Mullins “was an invitee on the premises of the Defendants . . . when he slipped and fell on ice that had been allowed to accumulate on the parking lot by the defendants.” (Id., ¶4.) It further alleges that Mullins' “injuries and damages were the responsible result of the carelessness and negligence of agents and/or employees of the Defendants in failing to properly inspect and maintain the property, failing to maintain a hazard free and safe environment and failing to warn of the danger.” (Id., ¶7.)

         LB Partners filed a Cross Claim for Indemnity (“Cross Claim”) against Con-Way based upon the terms of the Lease Agreement. (DE #34.) LB Partners leased the subject premises to Con-Way pursuant to a Lease Agreement dated July 3, 1989. (Id., ¶2.) The Third Amendment to the Lease Agreement dated September 5, 2012, extended the original Lease Agreement for an additional three-year period expiring on November 30, 2015. (Id.) Thus, the Lease Agreement was in effect on February 5, 2015, when the alleged incident occurred. (Id.)

         The Lease Agreement provides in pertinent part:

Tenant [Con-Way] shall indemnify and hold Landlord [LB Partners] harmless against any and all claims and demands arising from the negligence of the Tenant [Con-Way], it [sic] officers, agents, invitees and/or employees, as well as those arising from Tenant's [Con-Way's] failure to comply with any covenant of this Lease Agreement on its part to be performed and shall at its own expense defend the Landlord [LB Partners] against any and all suits or actions arising out of such negligence, actual or alleged, and all appeals therefrom and shall satisfy and discharge any judgment which may be awarded against Landlord [LB Partners] in any such suit or action.
Likewise, Landlord [LB Partners] shall indemnify and hold Tenant [Con-Way] harmless against any and all claims and demands arising from the negligence of the Landlord [LB Partners], its officers, agents, invitee and/or employees, as well as those arising from Landlord's [LB Partners'] failure to comply with any covenant of this Lease Agreement on its part to be performed, and shall at its own expense defend the Tenant [Con-Way] against any and all suits or actions arising out of such negligence, actual or alleged, and all ...

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