United States District Court, S.D. Mississippi, Northern Division
P. JORDAN III CHIEF UNITED STATES DISTRICT JUDGE.
negligence action is before the Court on motion  of
Defendant Standard Enterprises, Inc. (SEI) to dismiss
Defendant JJB Pizza, LLC, pursuant to Federal Rule of Civil
Procedure 12(b)(6). Plaintiff Jemuel Gates has not responded.
Having considered the motion, the procedural history of the
case, and the relevant authority, the Court finds SEI's
motion to dismiss JJB Pizza  should be granted.
Facts and Procedural History
worked as a pizza-delivery driver for the Pizza Hut located
on Raymond Road in Jackson, Mississippi. On July 19, 2018, he
was “attacked, held at gun point, and beaten”
while delivering pizza to an apartment complex that he
contends was on the “no delivery” list due to
safety concerns. State Ct. R. [1-4] at 8 (Compl.). Gates
filed this lawsuit in state court against Yum! Brands, Inc.,
which he contends owns Pizza Hut; JJB Pizza, LLC, the owner
of the local Pizza Hut franchise; and SEI, the owner and
manager of the apartment complex. Id. at 7. He
advances negligence claims against all Defendants.
Id. at 8-9.
November 15, 2019, SEI removed the case to federal court,
citing diversity jurisdiction. SEI explains that it is a
Louisiana corporation; Yum! Brands is a Tennessee
corporation; Gates is a citizen of Mississippi; and JJB
Pizza, a Mississippi corporation, is improperly joined.
Notice  at 2. SEI reasons that because JJB Pizza is
Gates's employer, his exclusive remedy against it is the
Mississippi Workers' Compensation Act (MWCA or “the
Act”). Id. at 3. He therefore “has no
possibility of recovering against JJB Pizza, LLC for an
injury sustained in the scope of his employment.”
Id. To date, Gates has not moved to remand the case
to state court.
on that exclusive-remedy argument, SEI now moves to dismiss
JJB Pizza for failure to state a claim. Gates has not
responded, and the time to do so has passed.
considering a motion under Rule 12(b)(6), the “court
accepts ‘all well-pleaded facts as true, viewing them
in the light most favorable to the plaintiff.'”
Martin K. Eby Constr. Co. v. Dall. Area Rapid
Transit, 369 F.3d 464, 467 (5th Cir. 2004) (quoting
Jones v. Greninger, 188 F.3d 322, 324 (5th Cir.
1999) (per curiam)). But “the tenet that a court must
accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions. Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). To overcome a Rule 12(b)(6) motion, a plaintiff must
plead “enough facts to state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at
570. “Factual allegations must be enough to raise a
right to relief above the speculative level, on the
assumption that all the allegations in the complaint are true
(even if doubtful in fact).” Id. at 555
(citations and footnote omitted).
says Gates's exclusive remedy for negligence claims
against JJB Pizza is under the MWCA. Miss. Code Ann. §
71-3-9 (“The liability of an employer to pay
compensation shall be exclusive and in place of all other
liability of such employer to the employee . . . on account
of such injury or death . . . .”). The Act defines an
“injury” as an “accidental injury or
accidental death arising out of and in the course of
employment without regard to fault” and “includes
an injury caused by the willful act of a third person
directed against an employee because of his employment while
so employed and working on the job.” Id.
§ 71-3-3(b). SEI maintains Gates's injury is
compensable under the MWCA because he was assaulted by a
third party while delivering pizza in the course and scope of
his employment. The Court agrees.
reasons stated, SEI's motion to dismiss Defendant JJB
Pizza  is granted. The claims against JJB Pizza are