United States District Court, District of New Hampshire
Nancy Boucher, Individually and as Personal Representative of the Estate of Raymond Boucher
Tyler Rioux and Industrial Concrete Services, Inc. Opinion No. 2014 DNH 170
William A. Mulvey, Jr., Esq.
Patrick Mulvey, Esq.
Gary M. Burt, Esq.
Douglas N. Steere, Esq.
Andrew R. Schulman, Esq.
LANDYA McCAFFERTY UNITED STATES DISTRICT JUDGE
In a case that arises from a traffic accident that took the life of her husband, Nancy Boucher (“Boucher”) has sued truck driver Tyler Rioux (“Rioux”) and his employer, Industrial Concrete Services, Inc. (“Industrial Concrete”). Against Rioux, Boucher asserts claims for negligence (Counts I and II), loss of consortium (Count III), and negligent infliction of emotional distress (Count IV). In Count V, Boucher asserts that Industrial Concrete is vicariously liable for Rioux’s tortious conduct. Before the Court is Industrial Concrete’s motion to dismiss Count III and a portion of Count V, for lack of subject-matter jurisdiction, see Fed. R. Civ. P. 12(b)(1). Industrial Concrete argues that those claims are moot as a result of an offer of judgment it made to Boucher. Boucher objects. For the reasons that follow, Industrial Concrete’s motion to dismiss is denied.
Standard of Review
“A challenge under Rule 12(b)(1) constitutes a challenge to federal subject matter jurisdiction, which includes ripeness, mootness, sovereign immunity and, of course, subject matter jurisdiction.” Pérez v. P.R. Nat’l Guard, 951 F.Supp. 2d. 279, 287 (D.P.R. 2013) (citing Valentin v. Hosp. Bella Vista, 254 F.3d 358, 362–63 (1st Cir. 2001)). “When a case is moot — that is, when the issues presented are no longer live or when the parties lack a generally cognizable interest in the outcome — a case or controversy ceases to exist, and dismissal of the action is compulsory.” Redfern v. Napolitano, 727 F.3d 77, 83–84 (1st Cir. 2013) (quoting Maher v. Hyde, 272 F.3d 83, 86 (1st Cir. 2001); citing Cruz v. Farquharson, 252 F.3d 530, 533 (1st Cir. 2001)).
The following facts are drawn from plaintiff’s complaint. See Plumbers’ Union Local No. 12 Pension Fund v. Nomura Asset Acceptance Corp., 632 F.3d 762, 771 (1st Cir. 2011). Boucher’s husband of 40 years was in the yard of their home when Rioux, who was working for Industrial Concrete at the time, drove a truck into him and killed him.
In Count III of her complaint, Boucher “demands judgement against [Rioux] for compensatory damages as fully allowed by New Hampshire RSA 556:12, II[, ] for her loss of comfort, society and companionship.” Compl. (doc. no. 1-1) 3. In Count V, she “demands judgement against the defendant, Industrial Concrete Services, Inc., [under a theory of vicarious liability, ] for compensatory damages for each count and each damage alleged in the previous counts against Defendant, Rioux.” Id. at 5.
In its answer, Industrial Concrete “admit[ted] legal fault for the accident.” Answer (doc. no. 6) ¶ 7. Further, Industrial Concrete admitted that Mr. Boucher’s death was “a direct and proximate result of the collision.” Id. ¶ 8. Finally, Industrial Concrete has admitted
that as a consequence of Mr. Boucher’s death, Mrs. Boucher has suffered the loss of his society, comfort and companionship. Further, [Industrial Concrete] admit[ted] liability for the claim of the loss of comfort, society, companionship, and is ready, willing, and has proposed to pay the full amount to which the plaintiff is entitled . . . under the statutory laws of N.H. RSA 556:12[, ] II, the sum of $150, 000. [Industrial Concrete also] admit[ted] liability and damages as to Count III, and propose[d] to confess judgment to that Count and pay into Court the amount to which the plaintiff is entitled.
Id. ¶ 16.
Industrial Concrete made an offer of judgment under Rule 68 of the Federal Rules of Civil Procedure in the amount of $150, 000, which is the statutory maximum for a loss-of-consortium claim. See Industrial Concrete’s Mot. to Dismiss, Ex. A (doc. no. 8-2), at 3. Boucher rejected Industrial Concrete’s offer of judgment.
Industrial Concrete moves to dismiss Count III and the portion of Count V that pertains to Boucher’s claim for loss of consortium for lack of subject-matter jurisdiction because those claims have been rendered moot by its Rule 68 offer of ...