UNITED STATES DISTRICT COURT                             
                    DISTRICT OF MINNESOTA                                


TRINA RUSS,                        Case No. 19-CV-2719 (DSD/JFD)         

               Plaintiff,                                                

v.                                                                       
                                ORDER ON PLAINTIFF’S MOTIONS             
ECKLUND LOGISTICS, INC.,         TO AMEND HER COMPLAINT TO               
KLE EQUIPMENT LEASING, LLC,        ADD CLAIMS FOR PUNITIVE               
SHANE THOMAS MICHAELS, and                 DAMAGES                       
XPO LOGISTICS, LLC,                                                      

               Defendants.                                               


    This matter is before the Court on Plaintiff’s Motions for Leave to File a Third 
Amended Complaint to Add a Claim for Punitive Damages Against Defendants Ecklund 
Logistics, Inc. (“Pl.’s Ecklund Mot.,” Dkt. No. 134), and XPO Logistics, LLC (“Pl.’s XPO 
Mot.,” Dkt. No. 138) (collectively “Motions to Amend”).                   
    Plaintiff Trina Russ brought this wrongful death action against four Defendants for 
their alleged involvement in a fatal vehicle collision in June of 2019 in which Ms. Russ’s 
husband (“Mr. Russ” or “Decedent”) died. This Court held a motions hearing on Tuesday, 
January 18, 2022, at which Jake Jagdfeld and Mike Johnson appeared for Plaintiff; Mike 
Moline  and  Peter  Culp  appeared  for  Defendants  Ecklund  Logistics,  Inc.  (“Ecklund 
Logistics”),  KLE  Equipment  Leasing,  LLC  (“KLE  Equipment”),  and  Shane  Thomas 
Michaels  (“Mr.  Michaels”);  and  Gordon  Hansmeier  appeared  for  Defendant  XPO 
Logistics, LLC (“XPO Logistics”). (Hr’g Mins., Dkt. No. 177.) For the reasons set forth 
below, the Court denies Plaintiff’s Motion as to XPO Logistics, but grants Plaintiff’s 
Motion as to Ecklund Logistics. The Court also sua sponte orders Plaintiff to, within 14 
days, file her Third Amended Complaint and allege with specificity the citizenship of each 

party at the time of this action’s commencement, in order that the Court may adequately 
assess whether it has subject matter jurisdiction over this case. That will depend upon 
whether complete diversity exists between Plaintiff and all Defendants.   
I.   PLAINTIFF’S MOTIONS TO AMEND                                         
    A.   Background                                                      
    The Court will first review the facts alleged, procedural posture, and the parties’ 

general arguments for and against Plaintiff’s Motions to Amend.           
         1.   The Proposed Third Amended Complaint’s Alleged Facts       
    The  following  facts  are  taken  from  the  proposed  Third  Amended  Complaint 
(“TAC,” Dkt. No. 165-2) which the Court takes as true for purposes of these Motions. 
Plaintiff alleges that on June 13, 2019, Defendant Michaels struck Decedent Andrew 

Russ’s car from behind on an interstate highway while driving a semi-trailer registered to 
Defendant Ecklund Logistics and owned by KLE Equipment, and while hauling a freight 
load that XPO Logistics had subcontracted Ecklund to carry. (Id. ¶¶ 19–20.) Plaintiff 
alleges that his, in turn, caused a chain-reaction crash involving three other vehicles besides 
Mr. Russ’s. (Id.) First responders could not revive Mr. Russ, and hospital staff pronounced 

him dead shortly afterwards. (Id. ¶¶ 24–27.)                              
    Four Defendants are named concerning the collision resulting in Mr. Russ’s death. 
Plaintiff alleges that Defendant XPO Logistics is a transportation logistics company that 
hired Defendant Ecklund Logistics, a freight hauling company, to transport a load of freight 
on June 12 from Waupaca, Wisconsin to Thief River Falls, Minnesota. (Id. ¶¶ 6–9, 35.) 
According to Plaintiff’s allegations, Defendant KLE Equipment owned the semi-trailer in 

question, which it had leased to Ecklund Logistics. (Id. ¶ 11.) Plaintiff also alleges that 
Ecklund Logistics hired Defendant Shane Thomas Michaels as its employee and, on his 
second day on the job, tasked him with delivering a load of freight in the semi-trailer 
involved in the collision. (Id. ¶¶ 12–13.) Plaintiff’s Motions concern XPO Logistics and 
Ecklund Logistics; Plaintiff does not seek leave to amend to add a claim for punitive 
damages against either KLE Equipment Leasing, LLC, or Mr. Michaels. The Court will 

therefore focus on the proposed TAC’s allegations as to Defendants XPO Logistics and 
Ecklund Logistics, taking them as true for the purposes of deciding these Motions. 
    Plaintiff alleges that XPO Logistics failed to investigate and ensure that Ecklund 
Logistics was a safe and professional company with safe and professional drivers. (Id. 
¶ 101.) Had XPO Logistics investigated Ecklund Logistics, Plaintiff alleges that it would 

have found various red flags about Ecklund, including its history of insurance claims 
showing that it had caused many other fatal collisions, its repeated hours of service 
violations, and past judgments and liens against it. (Id. ¶¶ 101–20.)     
    Plaintiff  alleges  that  Ecklund  Logistics  knew  or  should  have  known  that  Mr. 
Michaels’s employment history and criminal record raised red flags, including that he had 

been fired for suspension of his safety clearance, failed an annual safety check, once 
allowed  his  semi-trailer  to  roll  away,  had  been  convicted  of  a  felony  and  two 
misdemeanors, and had been cited for various vehicle-related violations. (Id. ¶¶ 78–81, 84.) 
Despite this, Plaintiff alleges that Ecklund Logistics hired Mr. Michaels, a decision that led 
directly to the collision at issue in this action. (Id. ¶¶ 86–87.) According to the allegations, 
Mr. Michaels’s social media posts provided further evidence of his unprofessionalism and 

poor judgment. (Id. ¶ 88.) The proposed TAC details posts depicting crashed semi-trailers 
and jokes about drivers’ failures to lawfully log service hours. (Id. ¶¶ 88–89, 92, 95.) 
Although  Plaintiff  does  not  specifically  allege  in  the  proposed  TAC  that  Ecklund 
Logistics—or  XPO  Logistics  by  extension—knew  or  should  have  known  about  Mr. 
Michaels’s Facebook posts, XPO and Ecklund take these allegations as an effort by 
Plaintiff to create that inference (see, e.g., Pl.’s Mem. Supp. Ecklund Mot. at 7–8; Def. 

Ecklund Logistics’s Mem. Opp’n at 25–27).                                 
    In the days leading up to the collision, Plaintiff alleges that Ecklund Logistics 
directed Mr. Michaels to haul a load of freight from Waupaca, Wisconsin to Thief River 
Falls, Minnesota—a trip estimated to take approximately 8 hours and 45 minutes of driving 
time under normal traffic and conditions—and to deliver it by between 8:00 and 9:00 a.m. 

on June 13, 2019.1 (Pl.’s Ex. B ¶¶ 40, 45(d), 57; see also Pl.’s Ex. F at 2, Dkt. No. 95-1; 
Pl.’s Ex. K at 2, Dkt. No. 95-1.) Plaintiff alleges that XPO Logistics and Ecklund Logistics 
created the context in which Mr. Michaels felt “under pressure to drive unsafely and in 
violation of the Federal Motor Carrier Safety Regulations (“FMCSRs”)2 because of the 


1 The Court notes that there are different accounts of Mr. Michaels’s precise delivery 
deadline, with some allegations and exhibits stating that the deadline was 8:00 a.m., and 
others stating that it was between 8:00 and 9:00 a.m. (See, e.g., Pl.’s Ex. B ¶¶ 40, 45(d), 
57; Pl.’s Ex. F at 2; Pl.’s Ex. K at 2.) These discrepancies do not materially change the 
Court’s analysis of these Motions.                                        
2 The FMCSRs are regulations issues by the United States Department of Transportation’s 
Federal Motor Carrier Safety Administration (“FMCSA”), whose mission “is to reduce 
crashes, injuries and fatalities involving large trucks and buses,” and they are codified at 
delivery timeline [they] had set for him.” (Id. ¶ 77.) According to Plaintiff, the day before 
the collision, the semi-trailer involved in the collision required brake and clutch repairs. 

(Id. ¶ 52.) When Mr. Michaels picked up the load of freight from Waupaca and departed 
with it for Thief River Falls at 2:34 p.m., Plaintiff alleges that he was already running late 
because of the time taken by those repairs. (Id. ¶¶ 48–49, 59.) The TAC alleges that, 
according to his log, Mr. Michaels stopped in Hudson, Wisconsin overnight, for a required 
ten-hour rest period, then departed for Thief River Falls the next morning at 6:35 a.m. (Id. 
¶ 55.) Because the drive between Hudson and Thief River Falls is approximately five hours 

and twenty minutes, Plaintiff alleges that it was not possible for Mr. Michaels to deliver 
the freight on time by between 8:00 and 9:00 a.m. that morning. (Id. ¶¶ 56–57.) Plaintiff 
alleges that at 6:46 a.m. on June 13—11 minutes after starting to drive for the day—Mr. 
Michaels accessed his online Facebook account via his cell phone and created a post. (Id. 
¶ 68.) According to Plaintiff’s allegations, the collision resulting in Mr. Russ’s death 

occurred a few minutes after Mr. Michaels’s Facebook post. (Id. ¶ 58.)    
    Plaintiff’s  TAC  alleges  that  the  Minnesota  State  Patrol  and  various  witnesses 
described the collision and its aftermath. The Minnesota Motor Vehicle Crash Report 
completed by the  State Patrol stated that Mr. Michaels had  just changed lanes, was 
distracted, was driving too fast for the conditions, and did not see traffic ahead of him slow 

down before the collision. (Id. ¶ 60; see also Pl.’s Ex. D at 1, 6, Dkt. No. 95-1.) One witness 

49 C.F.R. subchapter B, parts 300–399. FMCSA, Our Mission, https://www.fmcsa.dot. 
gov/mission  (last  visited  February  23,  2022).  “[A]ll  employers,  employees,  and 
commercial motor vehicles that transport property or passengers in interstate commerce” 
are required to comply with the FMCSRs. 

.                
to the collision stated that she saw Mr. Michaels change lanes several times before striking 
Mr. Russ’s car from behind. (Pl.’s Ex. B ¶ 61 (citing Pl.’s Ex. F at 2).) Another witness 

recounted that she saw Mr. Michaels wearing a pair of dual-sided headphones around his 
neck after the crash. (Id. ¶ 73.) The State Patrol determined that Mr. Michaels’s semi-trailer 
struck Mr. Russ’s car at highway speeds and that Mr. Michaels had neither tried to brake 
nor swerve before the impact. (Id. ¶ 62.) Mr. Michaels told the Minnesota State Patrol on 
the scene that he was “running very late” because of the repairs his semi-trailer had required 
the day before. (Id. ¶ 59 (citing Pl.’s Ex. F at 2).)                     

    A criminal Complaint in this matter has been filed against Mr. Michaels, which 
Plaintiff incorporates, in part, into her proposed TAC, and states that Mr. Michaels’s 
conduct before colliding with Mr. Russ                                    
    constituted gross negligence in that his speed was greater than the conditions 
    of the roadway would permit as safe or reasonable, his speed was far greater 
    than the vehicles traveling in front of him which he acknowledged he saw, 
    he was traveling through a high traffic area on his way to a delivery that he 
    was significantly late for, he was admittedly looking at his mirrors and not 
    the road in front of him just prior to the crash, he had been accessing his 
    phone and Facebook less than 10 minutes before the crash, and he made no 
    effort to slow his semi-tractor trailer which was traveling at highway speeds 
    despite multiple vehicle[s] being in front of his vehicle.           

(Id. ¶ 76 (citing Pl.’s Ex. F at 2).)                                     
         2.   Procedural Posture                                         
    On October 16, 2019, Plaintiff filed this case. (Complaint, Dkt. No. 1.) She filed the 
operative Second Amended Complaint (“SAC”) on June 7, 2021. (SAC, Dkt. No. 95.) She 
brings 12 counts against Defendants. (Id. ¶¶ 121–88.) Relevant to this Motion relating to 
Ecklund Logistics and XPO Logistics, Plaintiff brings claims on behalf of Mr. Russ against 
each  of  these  Defendants  for  negligence,  respondeat  superior/vicarious  liability, 
agency/vicarious liability, joint enterprise, joint venture, negligent hiring or selection and 

retention/supervision/entrustment, violations of the FMCSRs, and, on behalf of herself, a 
loss of consortium claim. (Id. ¶¶ 121–51, 157–61, 171–88.) She also claims that Ecklund 
Logistics and KLE Equipment were alter egos of each other and, as such, are vicariously 
liable for each other’s torts. (Id. ¶¶ 152–56.) Plaintiff seeks actual damages for pecuniary 
losses from Mr. Russ’s death, loss of consortium damages, medical bills and expenses, and 
funeral expenses, which she states exceed $10 million when combined. (Id. ¶¶ 189–92.) 

    On October 1, 2021, Defendants filed a Motion to Stay to await developments in 
Mr. Michaels’s state-court criminal case (Defs.’ Mot. Stay at 1, Dkt. No. 121), which this 
Court granted in part and denied in part, temporarily prohibiting any questioning of Mr. 
Michaels until his criminal case had “concluded by sentencing following a guilty plea or 
guilty  verdict,  or  by  dismissal  of  the  charges[,]”  but  ordering  “[a]ll  other  pretrial 

components of this case . . . [to] proceed as scheduled” (Oct. 19 Order at 2, Dkt. No. 131). 
         3.   The Parties’ Positions on Plaintiff’s Motions to Amend     
    Plaintiff moves for an Order granting her leave to amend her Complaint to add 
punitive damages claims against Defendants Ecklund Logistics and XPO Logistics. (Pl.’s 
Ecklund Mot. at 1; Pl.’s XPO Mot. at 1.) Regarding the legal standard that this Court should 

apply, Plaintiff argues that, while courts in this District have historically had divergent 
practices in determining whether to apply Minnesota Statute § 549.191–20 (“Minn. Stat. 
§ 549.171–20”) (a state statute governing punitive damages under Minnesota law) or 
Federal Rule of Civil Procedure 15 (a federal procedural rule governing motions to amend 
the pleadings in federal civil actions), after the United States Supreme Court’s decision in 
Shady Grove Assocs., P.A. v. Allstate Ins. Co., 

 (2010) (holding that a class 

action lawsuit could proceed in federal court under Federal Rule of Civil Procedure 23, 
even though a New York statute procedurally prohibited it), most courts now apply Rule 
15. (Id. at 16–17.) She argues this Court should do the same. (Id. at 21.)  
    Both Ecklund Logistics and XPO Logistics oppose Plaintiff’s Motions to amend the 
SAC to add punitive damages against them and ask the Court to deny the Motions entirely.  
(Def. XPO Logistics’s Mem. Opp’n at 1–4, Dkt. No. 153; Def. Ecklund Logistics’s Mem. 

Opp’n at 1–2, Dkt. No. 154.) While Defendants agree with Plaintiff that Federal Rule of 
Civil Procedure 15 supplies the procedural rule of decision for these Motions, they contend 
that 

 supplies the standard for measuring the legal sufficiency of the 
punitive damages claims pleaded. (XPO Logistics’s Mem. Opp’n at 7–8; Def. Ecklund 
Logistics’s Mem. Opp’n at 1–2.) They then argue that Plaintiff’s proposed amendments 

fail to allege sufficient facts under § 549.20 to show that Defendants had the requisite 
knowledge of, or that they intentionally disregarded facts about, the high probability that 
Mr. Michaels might injure others, and, therefore, her proposed amendments are futile under 
Rule 15. (XPO Logistics’s Mem. Opp’n at 7–15; Def. Ecklund Logistics’s Mem. Opp’n at 
20.)                                                                      

    Speaking on behalf of Defendants during oral arguments at the motions hearing, 
Defendants’ counsel argued that neither Ecklund Logistics nor XPO Logistics had notice 
that Mr. Michaels was an unfit hire; that Mr. Michaels committed no hours of service 
violations or documented speeding violations during his transportation of the load; that 
there was still time for Ecklund Logistics to change the delivery time for Mr. Michaels’s 
freight load once it opened for business on June 13; that there is no private cause of action 

for violations of the FMCSRs; and that Mr. Michaels showed no indication of being under 
pressure.                                                                 
    B.   Legal Standards for Plaintiff’s Motions to Amend                
    “Under the Erie doctrine, federal courts sitting in diversity apply state substantive 
law and federal procedural law.” Gasperini v. Ctr. for Humans., Inc., 

 
(1996) (citing Erie R. Co. v. Tompkins, 

 (1938)). The Court will review 

both below.                                                               
         1.   Applicable Procedural Law                                  
    When evaluating a motion to amend a complaint to add a punitive damages claim, 
both Federal Rule of Civil Procedure 15(a)(2) and 

 are candidates to 
provide the applicable procedural law. Fed. R. Civ. P. 15(a)(2) provides that “a party may 

amend its pleading only with the opposing party’s written consent or the court’s leave. The 
court should freely give leave when justice so requires.” The right to amend is not absolute, 
however. Sherman v. Winco Fireworks, Inc., 

 (8th Cir. 2008). Leave to 
amend may be denied for “compelling reasons such as undue delay, bad faith, or dilatory 
motive, repeated failure to cure deficiencies by amendments previously allowed, undue 

prejudice to the non-moving party, or futility of the amendment.” 

 (citing Moses.com 
Sec., Inc. v. Comprehensive Software Sys., Inc., 

 (8th Cir. 2005)). 
    

 requires a party seeking punitive damages to provide the court 
with “one or more affidavits showing the factual basis for the claim” and also requires the 
party to specify which of several possible legal bases in 

 it is premising 
its claim for punitive damages upon.                                      

    Since shortly after the U.S. Supreme Court’s decision in Shady Grove, most courts 
in this district sitting in diversity have looked to Fed. R. Civ. P. 15(a)(2), not 

, for the procedural law governing a  motion to amend a complaint to add a claim 
for punitive damages. See, e.g., Shank v. Carleton College, No. 16-CV-1154 (PJS/HB), 

 *4 (D. Minn. Oct. 15, 2018); In re Bair Hugger Forced Air Warming 
Devices Prods. Liab. Litig., No. 15-MDL-2666 (JNE/FLN), 

, *5–6 (D. 

Minn. July 27, 2017). But see Inline Packaging, LLC v. Graphic Packaging Int’l, LLC, No. 
15-CV-3183 (ADM/LIB), 

, at *31 (D. Minn. Mar. 8, 2018), objs. 
overruled, 

 (D. Minn. 2018), aff’d, 

 (8th Cir. 2020) 
(holding that parties seeking to add a punitive damages claim must follow the procedure 
set out in 

). In deciding the present Motions to Amend, this Court 

finds, consistent with the post-Shady Grove weight of authority in this district, that Federal 
Rule of Civil Procedure 15(a)(2) provides the applicable procedural law.  
         2.   Applicable Substantive State Law                           
    However, a place still remains for Minnesota state law on punitive damages when a 
party opposing an attempt to amend a complaint by adding a punitive damages claim 

grounds its opposition to the amendment on an assertion that the amendment would be 
futile. In that situation—such as the one now before this Court—to decide futility, the 
federal court looks to Minnesota state substantive law on punitive damages, 

, to find the elements that a party must prove to be awarded punitive damages and 
measures Plaintiff’s factual allegations against the substantive standards of that statute. See 
Hamilton v. Franchoice, Inc., No. 19-CV-1426 (MJD/ECW), 

, at *6 (D. 

Minn. May 6, 2020) (“Section 549.20 governs the scope of punitive damages, and . . . 
Plaintiffs need to plausibly allege a claim for punitive damages that meets the substantive 
requirements of that statute . . . .”) .                                  
    

 states:                                         
     (a)  Punitive damages shall be allowed in civil actions only upon clear and 
         convincing evidence that the acts of the defendant show deliberate 
         disregard for the rights or safety of others.                   

     (b)  A defendant has acted with deliberate disregard for the rights or safety 
         of others if the defendant has knowledge of facts or intentionally 
         disregards facts that create a high probability of injury to the rights or 
         safety of others and:                                           

         (1)  deliberately proceeds to act in conscious or intentional disregard 
             of the high degree of probability of injury to the rights or safety 
             of others; or                                               

         (2)  deliberately  proceeds  to  act  with  indifference  to  the  high 
            probability of injury to the rights or safety of others.     

, subd. 1.                                            
    Defendants Ecklund Logistics and XPO Logistics assert that Plaintiff should not be 
allowed to add a claim for punitive damages to her complaint because it would be futile. 
(Def. XPO Logistics’s Mem. Opp’n at 2; Def. Ecklund Logistics’s Mem. Opp’n at 1.) A 
proposed claim is futile if it “could not withstand a motion to dismiss under Rule 12(b)(6) 
of the Federal Rules of Civil Procedure.” See Cornelia I. Crowell GST Trust v. Possis Med., 
Inc., 

 (8th Cir. 2008). Rule 12(b)(6) requires dismissal when a pleading 
fails “to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 

 (2007). The party asserting the claim need not plead “detailed factual 
allegations,” but mere “labels and conclusions” or “a formulaic recitation of the elements 

of a cause of action will not do.” 

. For a claim to be facially plausible, the party 
must allege “factual content that allows the court to draw the reasonable inference that the 
[opposing party] is liable for the misconduct alleged.” Ashcroft v. Iqbal, 

 
(2009). In applying this standard, the Court accepts the factual allegations as true and views 
them most favorably to the pleading party. Hager v. Ark. Dep’t of Health, 

 (8th Cir. 2013).                                                     

    

 requires clear and convincing evidence of deliberate disregard 
for the rights or safety of others. “Under Minnesota law, a complaint cannot be amended 
to add a claim for punitive damages unless the motion to amend is supported by prima facie 
clear and convincing evidence that a defendant has shown deliberate disregard for the rights 
and safety of others.” In re McNeilus Mfg. Explosion Coordinated Litig., No. 17-CV-5237 

(PJS/KMM), 

, at *2 n.2 (D. Minn. June 6, 2019) (citing Ulrich v. City 
of Crosby, 

, 868–69 (D. Minn. 1994)).                     
    “Deliberate  disregard  occurs  when  ‘the  defendant  has  knowledge  of  facts  or 
intentionally disregards facts that create a high probability of injury to the rights or safety 
of others.’” 

 (citing 

, subd. 1(b)). More than negligence or even 

gross negligence is required to sufficiently allege a claim for punitive damages. See 
Dolphin Kickboxing Co. v. Franchoice, Inc., 

, 401 (D. Minn. 2020). “In 
Minnesota, negligence is generally defined as the failure to exercise such care as persons 
of ordinary prudence usually exercise under such circumstances.” Anderson v. Rugged 
Races LLC, 

, 1277 (D. Minn. 2020) (citing Domagala v. Rolland, 

 (Minn. 2011)) (cleaned up). “Minnesota law defines gross negligence as 

without even scant care but not with such reckless disregard of probable consequences as 
is equivalent to a willful and intentional wrong.” Dolphin Kickboxing Co., 335 F.R.D. at 
401 n.4 (citing Greer v. Walsh Constr. Co., No. 15-CV-465 (PAM/JSM), 

,  at  *8  (D.  Minn.  Feb.  23,  2016))  (cleaned  up).  With  these  procedural  and 
substantive standards in mind, the Court now turns to the Motions at hand. 

    C.   Discussion of Plaintiff’s Motions to Amend                      
    On January 14, 2022, the Court granted Plaintiff’s Motion to Supplement the Record 
with the proposed Third Amended Complaint (“TAC”) (Pl.’s Ex. B, Dkt. No. 165-2), and 
the redlined copy of the proposed TAC (Pl.’s Ex. A, Dkt. No. 165-1). Because of that 
Order, these documents are considered part of the record upon which the Court will decide 
these Motions. (See Jan. 14 Order at 3.) The Court therefore disregards Defendants’ 

arguments that the omission of these documents earlier is reason to deny the Motions for 
Leave to Amend,  as those omissions were mooted by the Court’s January 14 Order. 
    When  deciding  whether  Plaintiff  has  adequately  alleged  claims  for  punitive 
damages under 

, the Court considers only what Plaintiff has alleged in 
her proposed TAC, disregarding Defendants’ rebuttals and the evidence presented in 

opposition to Plaintiff’s Motions. See In re McNeilus, 

, at *2 (citing 
Iqbal, 

) (“Under Rule 12(b)(6), courts look only at the sufficiency of the 
allegations in the proposed amended complaint to determine whether it contain[s] sufficient 
factual matter, accepted as true, to state a claim to relief that is plausible on its face.”) 
(cleaned up).                                                             

    Plaintiff’s allegations in her proposed TAC must be measured against precisely what 
the Minnesota punitive damages statute requires: (1) knowledge of—or an intentional 
disregard of—facts that make injury to the plaintiff’s rights highly probable; and (2) 
deliberately  proceeding  with  at  least  indifference—if  not  conscious  or  intentional 
disregard—to the risk of injury. 

. Mere conclusory statements that a 
defendant had knowledge, or willfully disregarded it, are not sufficient. See In re Bair 

Hugger, 

, at *7. The Court will take each Motion and the allegations 
regarding each respective Defendant in turn below.                        
              1.   Plaintiff’s Proposed Amendments                       
    Plaintiff’s Proposed Third Amended  Complaint contains three new paragraphs 
setting forth the factual basis for her punitive damages claims under a proposed Count XIII 

against XPO Logistics (Pl.’s Ex. B, ¶¶ 189–90) and Ecklund Logistics (id. ¶¶ 189, 191). 
                   a.   Plaintiff’s Allegations Against XPO Logistics    
    Plaintiff reincorporates all allegations made in the proposed TAC (id. ¶ 189) and 
newly alleges that Defendant XPO Logistics was aware of a high probability of harm to 
others because: (1) XPO knew that violating the FMCSRs’ hours of service regulations 

creates  dangers;  (2)  disregarded  those  known  dangers;  and  (3)  aided,  abetted,  and 
encouraged Ecklund Logistics and Mr. Michaels to violate the hours of service regulations 
in violation of 

 (which prohibits any person from aiding, abetting, and 
encouraging violations of the FMCSRs) (id. ¶ 190). If these allegations amount to clear 
and convincing evidence that XPO Logistics had (i) knowledge which it (ii) intentionally 
disregarded despite (iii) the high probability that the rights or safety of others could be 

injured, then 

 is satisfied, the proposed amendment is not futile, and 
Plaintiff’s Motion as to XPO Logistics should be granted. The Court takes all facts alleged 
in the proposed Third Amended Complaint as true for the purposes of the following 
analysis.                                                                 
                        i.   XPO Logistics’s Alleged Knowledge           
    Plaintiff alleges that XPO Logistics knew about (1) the parameters that it gave to 

Ecklund Logistics regarding the June freight load; (2) the agreements that it had in place 
with Ecklund; and (3) the details of Mr. Michaels’s departure time, trip duration, and 
scheduled delivery time.                                                  
    Specifically, Plaintiff alleges that XPO Logistics sent an email to the original 
shipper on June 11, 2019—two days before the collision—stating, “All set for tomorrow. 

Driver will be unloading in Neenah at 830AM, then headed to our shipper (30 miles or so). 
ETA 11AM. We will deliver at 8AM Thursday.” (Pl.’s Ex. B ¶ 40.) According to the TAC, 
the original shipper asked XPO Logistics to pick up the load of freight between 7:00 a.m. 
and 3:00 p.m. (Id. ¶ 41.) Plaintiff alleges that XPO Logistics reassigned transportation of 
the load to Ecklund Logistics, over whom it “had the right to control the means and manner 

of  how  Ecklund  Logistics  and  [Mr.  Michaels]  carried  out  the  shipment”  by  various 
contractual  agreements,  including  the  June  11,  2019  Carrier Rate  Confirmation/Load 
Confirmation Agreement, the November 8, 2012 Brokerage Agreement, and the April 29, 
2019 Motor Carrier Transportation Agreement. (Id. ¶¶ 42–48.)3             

    Plaintiff also alleges that the April 2019 Agreement “expressly prohibited Ecklund 
Logistics from transporting any shipment that would require Ecklund Logistics to violate 
the law, speed limits, safety rules, and federal hours-of-service rules,” and required it to 
notify XPO Logistics of “any expected [or] actual inability to meet the scheduled pick up 
or delivery appointment time.” (Id. ¶ 48(h), (j)(2).) Plaintiff alleges that XPO Logistics also 
required  Ecklund  Logistics  to  be  responsible  for  late  delivery  penalties  imposed  by 

customers.  (Id.  ¶ 48(q).)  Additionally,  the  TAC  alleges  that  XPO  Logistics  required 
Ecklund Logistics to effectively screen, monitor, and train its employees who handled XPO 
Logistics’s  cargo,  and  retained  the  right  to  verify  Ecklund’s  compliance  with  their 
agreement. (Id. ¶ 48(x), (ll).) Plaintiff alleges that in the June 11, 2019 Agreement, XPO 
Logistics instructed Ecklund Logistics on the pick-up and delivery schedule required for 

transportation of the June 12 load, and directed Ecklund to call XPO at least twice a day, 
as well as to call and report pick-up, transit status, delivery status, and any issues affecting 
transportation of the load. (Id. ¶ 45.)                                   
    Based on these agreements, Plaintiff alleges that XPO Logistics knew that Mr. 
Michaels picked up the load of freight at 2:34 p.m. on June 12, 2019; that his trip would 

take approximately 8 hours and 45 minutes; and that the freight delivery deadline was 


3 The Court notes that two paragraphs in the TAC are numbered 48, and here refers to the 
first paragraph labeled 48 in the TAC. That paragraph begins on page 16. All subsequent 
references to paragraph 48 shall refer to the first paragraph 48 unless otherwise noted. 
between 8:00 and 9:00 a.m. on June 13. (Id. ¶¶ 48–50, 57.) According to Plaintiff, XPO 
Logistics also knew about “the laws and the dangers of violating the laws surrounding the 

FMCSR’s hours of service regulations while driving[,]” which, inter alia, included a 
required a ten-hour rest period after 14 hours of driving. (Id. ¶ 190.) See 

(g). There are no facts in the TAC that show whether, or at what time or times on 
June 12 or 13, Ecklund Logistics gave XPO Logistics the updates required by their 
agreements.                                                               

                      ii.    Facts  that  XPO  Logistics  Allegedly      
                             Disregarded                                 

    Plaintiff alleges that XPO had a duty of care to the general public to know whether 
Ecklund Logistics, with whom it contracted to meet its motor carrier obligations, “was a 
safe,  professional,  and  competent  motor  carrier”  that  “hired  safe,  professional,  and 
competent motor carriers and drivers.” (Id. ¶¶ 101, 172, 175–76.) The TAC alleges that 
XPO Logistics failed to perform its duty and disregarded facts it should have known about 
Ecklund Logistics’s dangerous and unprofessional business practices, when it failed to 
review  and  consider  Ecklund’s  insurance  claim  history,  past  lawsuits,  and  general 
reputation. (Id. ¶¶ 102–20, 173–74.)                                      
    According to Plaintiff, these dangerous and unprofessional business practices that 
XPO Logistics should have known about included Ecklund Logistics’s history of poor 
hiring decisions; “collisions, unsafe driving and financial instability”; being underinsured; 
pressuring  its  drivers  to  exceed  their  federally  allowed  service  hours;  permitting  or 

encouraging drivers to maintain inaccurate log books; conducting questionable “hiring, 
training, supervision, retention, and company safety practices”; permitting drivers to film 
videos on their cell phones while driving; and being assessed State and Federal tax liens 

and judgments (which left Ecklund Logistics in such financial straits that it had an incentive 
to economize by operating unsafely). (Id.) Plaintiff further alleges that XPO Logistics also 
disregarded the dangers of violating the FMCSRs’ hours of service regulations. (Id. ¶ 190.)  
The TAC states that, “[h]ad XPO Logistics exercised due care, it knew or should have 
known that Ecklund Logistics and [Mr. Michaels] were incompetent and unsafe to act as 
the contractor to transport the freight which was involved in the fatal collision.” (Id. ¶ 177.) 

                      iii.   The  Probability  of  Injury to  the  Rights  or 
                             Safety of Others                            

    Plaintiff alleges that XPO Logistics had a duty of reasonable care to ensure that any 
entity it hired to transport its freight—a task “which involved a risk of physical harm unless 
it was skillfully and carefully done”—acted in accordance with XPO’s own duty of care 
owed to third persons, such as the general public. (Id. ¶ 174.) According to the TAC, the 
April 2019 Agreement between XPO Logistics and Ecklund Logistics required Ecklund to 
obey the law, the speed limit, safety rules, and federal hours of service regulations, which 
shows that XPO Logistics retained the right to control the means and manner of how 
Ecklund and Mr. Michaels conducted the transportation of the June 2019 freight load. (Id. 
¶ 48.) Plaintiff alleges that this also shows an awareness on XPO Logistics’s part that 
regulations  ranging  from  cell  phone  use  while  driving  to  obeying  hours  of  service 
requirements are “vitally important to the safety of the motoring public[,]” and that failing 

to follow them “poses a significant danger to the motoring public” and “can lead to 
commercial vehicle crashes.” (Id. ¶¶ 48(h), 70, 116.)  According to Plaintiff, XPO Logistics 
also knew or should have known that Ecklund Logistics’s history of causing harm to people 

and property presented a risk of similar potential future harms. (Id. ¶¶ 102–20, 173–74.) 
Plaintiff alleges that the June 13 accident was so horrific that it is itself evidence of the 
probability of injury, as well as of “carelessness, negligence, and unlawful hiring, retention, 
supervision, and entrustment[,]” actions that “were the direct cause of the collision which 
killed Andrew Russ.” (Id. ¶¶ 160, 178.)                                   

                      iv.    Plaintiff’s Supporting Arguments            

    In her Memorandum in Support of her Motion to Amend regarding XPO Logistics, 
Plaintiff argues that her proposed TAC sufficiently alleges that XPO Logistics had control 
over the details of Mr. Michaels’s June 13 freight delivery schedule pursuant to its Motor 
Carrier Transportation Agreement with Ecklund Logistics, knew that Ecklund and Mr. 
Michaels did not have enough time to complete that delivery on time, and applied pressure 
to Ecklund and Mr. Michaels to exceed industry standards and violate FMSCRs or face 
punishing financial consequences for late delivery. (Pl.’s Mem. Supp. XPO Mot. at 2–11, 
Dkt. No. 136.) Based on XPO Logistics’s power to control the delivery schedule, Plaintiff 
contends that her proposed TAC sufficiently alleges that XPO aided, abetted, encouraged, 
or required Ecklund Logistics and Mr. Michaels to violate regulations contained in 

  (which  prohibit  any  person  from  aiding,  abetting,  and  encouraging 
violations of the FMCSRs) because it cared more about timely freight delivery to its 
customers than the safety of the motoring public. (Id. at 21–23.)         
    Under Rule 15, Plaintiff argues that her Motion to Amend regarding XPO Logistics 
should be granted because justice requires it under the case facts; she has demonstrated no 

undue delay or bad faith; it would not result in unfair prejudice to XPO Logistics; and the 
amendments would not be futile. (Id. at 17.) She also argues that, even if the Court applies 

.191–20  as  the  legal  standard  for  measuring  her  proposed  TAC’s 
sufficiency, her Motion should still be granted because, under that Statute, she need only 
allege prima facie evidence of XPO Logistics’s deliberate disregard for the rights and 
safety of others, which she claims she has done. (Id. at 17–18.)          

    Plaintiff  also  cites  various  out-of-Circuit  cases  in  which  hours  of  service  and 
speeding violations have resulted in courts permitting punitive damages claims. (Id. at 22–
23 (citing, e.g., Gonzalez v. Seashore Fruit & Produce, No. 19-CV-1422, 

, at *2 (E.D. Pa. May 21, 2020) (finding the facts alleged sufficient to amend a 
complaint to add a punitive damages claim where a defendant had allegedly driven longer 

than allowed under the hours of service regulations, his employer knew of its driver’s 
violation, and the driver caused a collision where he failed to see a slower car in front of 
him and did not brake until the impact was less than two seconds away); Trotter v. B & W 
Cartage Co., No. 05-CV-0205 (MJR), 

, at *7 (S.D. Ill. Apr. 13, 2006) 
(concluding at summary judgment that a reasonable jury could find punitive damages 

warranted where an employer “operated with conscious indifference to its regulatory duty 
to maintain management systems effective in preventing hours of service violations by 
drivers”)).) However, Plaintiff conceded during oral argument that there are no binding 
precedents in this Circuit. Based on the facts and persuasive caselaw, Plaintiff claims that 
the Court should grant her Motion and permit her to plead a claim for punitive damages 
against XPO Logistics. (Id. at 23.)                                       

                      v.     XPO Logistics’s Opposing Arguments          

    XPO Logistics opposes Plaintiff’s Motion for leave to add a punitive damages claim 
against  it  and  asks  the  Court  to  deny  Plaintiff’s  Motion  in  its  entirety.  (Def.  XPO 
Logistics’s Mem. Opp’n at 1–4.) In its Memorandum in Opposition to this Motion, XPO 
Logistics argues that Plaintiff’s Motion fails to meet the Rule 15 standard because, under 
a Rule 12(b)(6) standard, the proposed amendment is futile where Plaintiff does not set 
forth a legally sufficient claim for punitive damages under Minnesota law against XPO 
Logistics. (Id. at 7–15.) XPO Logistics also contends that Count XI of the proposed TAC 
improperly brings a claim for violations of the FMCSRs because “‘there is no federal 
private  right  of  action  allowing  personal  injury  or  wrongful  death  plaintiffs  to  hold 
defendants liable for violations of the FMCSR.’” (Id. at 7 (citing Leon v. FedEx Ground 

Package Sys., Inc., No. 13-CV-1005 (JB/SCY), 

, at *11 (D.N.M. Feb. 16, 
2016).)                                                                   
                      vi.    Holding                                     

    As a threshold matter, the Court addresses XPO Logistics’s argument that there is 
no private right of action to allege violations of the FMCSRs, and that without such a right, 
Plaintiff has no foundation for her punitive damages claims. The Court assumes, without 
deciding, that allegations in the TAC of harm to a member of the public—which the 
FMCSRs were intended to protect—along with criminal charges alleging just such a harm 
(the death of a motorist), are enough at the pleading stage to allow Plaintiff to allege 
punitive damages. See Berczyk v. Emerson Tool Co., 

 (D. Minn. 
2003) (citing Olson v. Snap Prod., Inc., 

 (D. Minn. 1998) (“A 

plaintiff need not demonstrate an entitlement to punitive damages per se, but only an 
entitlement to allege such damages.”); Huggins v. FedEx Ground Package Sys., Inc., 

 (8th Cir. 2010) (declining to decide the merits of defendant’s arguments that 
only a member of the public is an intended beneficiary of the FMCSRs and may bring 
claims under them where the plaintiff was a co-driver (rather than a member of the public) 
and failed to plead a claim under the FMCSRs.).                           

    The Court also observes that at least four times, courts in this Circuit applying 
Missouri’s punitive damages law have expressly “allow[ed] evidence of failures to follow 
motor carrier regulations and industry standards to support awards of punitive damages 
against commercial motor carriers[,]” see, e.g., Harris v. Decker Truck Line, Inc., No. 4:12-
CV-1598 (DDN), 

, at *5 (E.D. Mo. Apr. 24, 2013); Coon v. Am. 

Compressed Steel, Inc., 

, 637–39 (Mo. Ct. App. 2006); Lopez v. Three 
Rivers Elec. Co-op., Inc., 

 (Mo. 2000); and Garrett v. Albright, No. 06-
CV-0785  (NKL),  

,  at  *6  (W.D.  Mo.  Mar.  21,  2008).  Missouri’s 
substantive law on punitive damages is similar to Minnesota’s: “Under Missouri law, 
punitive damages are appropriate where a party ‘either knew or had reason to know that 

there was a high degree of probability that the defendant’s conduct would result in injury.’” 
Garrett, 

, at *6 (citing Hoover’s Dairy, Inc. v. Mid-America Dairymen, 
Inc., 

 (Mo. 1985)). “With such a showing, a plaintiff can recover for 
aggravating  circumstances  based  upon  the  defendant’s  complete  indifference  to  or 
conscious disregard for the safety of  others.” 

 (citing Lopez, 

).) 
Additionally, XPO Logistics’s out-of-Circuit citation to the District of New Mexico’s 

holding in Leon, 

, at *11, presents only a persuasive precedent, albeit a 
compelling one.                                                           
    Viewing Plaintiff’s allegations together as a whole and taking them as true for 
purposes of this Motion, the Court concludes that Plaintiff fails to plausibly allege on the 
face of the proposed TAC that XPO Logistics acted with deliberate disregard for the rights 
and safety of others. The facts alleged do not provide clear and convincing evidence that 

XPO Logistics knew or should have known that Mr. Michaels did not have enough time to 
deliver the load of freight, or that this would incentivize him to violate regulations about 
hours of service. Plaintiff has not alleged that Ecklund Logistics informed XPO Logistics 
that its driver could not deliver the load on time, much less that XPO reacted with 
indifference to that information. Plaintiff’s assertion that (1) XPO knew that violating the 

FMCSRs’ hours  of service  regulations  creates  dangers;  (2)  disregarded  those  known 
dangers; and (3) aided, abetted, and encouraged Ecklund Logistics and Mr. Michaels to 
violate the hours of service regulations in violation of 

 (id. ¶ 190) is 
conclusory because it is not sufficiently supported by the facts alleged as a whole in the 
proposed TAC.                                                             

    In sum, Plaintiff’s allegations do not amount to clear and convincing evidence, even 
if unrebutted, that XPO Logistics acted with willful indifference to a highly probable risk 
of harm to the rights and safety of others. Because Plaintiff’s allegations do not meet the 
substantive state law requirements under 

 subd. 1, the Court concludes, 
pursuant to Federal Rule of Civil Procedure 15(a)(2), that Plaintiff’s proposed amendments 
are futile because the allegations could not withstand a motion to dismiss. See Fed. R. Civ. 

P. 15(a)(2); see also In re Bair Hugger, 

, at *8 (citing Springdale Educ. 
Ass’n v. Springdale Sch. Dist., 

 (8th Cir. 1998)). Therefore, the Court 
denies Plaintiff’s Motion seeking leave to amend the Complaint to add punitive damages 
as to XPO Logistics.                                                      
                   b.   Plaintiff’s Allegations Against Ecklund Logistics 
    Plaintiff reincorporates all allegations made in the proposed TAC (Pl.’s Ex. B ¶ 189) 

and newly alleges that Defendant Ecklund Logistics (1) hired  Mr. Michaels as a driver 
despite knowing his history of unsafe and unprofessional commercial driving; (2) knew 
that violating the FMCSRs’ hours of service regulations creates dangers; (3) disregarded 
those known dangers; and (4) aided, abetted, and encouraged Mr. Michaels to violate the 
hours of service regulations in violation of 

 (which prohibit any person 

from aiding, abetting, and encouraging violations of the FMCSRs) (id. ¶ 191). If these 
allegations  amount  to  clear  and  convincing  evidence  that  Ecklund  Logistics  had  (i) 
knowledge which it (ii) intentionally disregarded despite (iii) the high probability that the 
rights or safety of others could be injured, then 

 is satisfied, the 
proposed amendment is not futile, and Plaintiff’s Motion as to Ecklund Logistics should 

be granted. The Court takes all facts as alleged in the proposed Third Amended Complaint 
as true for the purposes of the following analysis.                       
                       i.    Ecklund Logistics’s Alleged Knowledge       

    Plaintiff  alleges  that  Ecklund  Logistics  knew  about  (1)  its  own  policies  and 
practices;  (2)  Mr.  Michaels’s  past  employment  history  and  criminal  record;  (3)  the 
parameters of its role as the motor carrier that XPO Logistics hired for the June 2019 load; 
and (4) that on June 12, Mr. Michaels departed late with XPO’s load.      
    Specifically, the TAC alleges that Ecklund Logistics knew its own policies and 
practices,  including  its  “company  safety  history”  and  its  “policies  regarding  hiring, 
supervision,  and  retention  of  employees;  entrustment  of  vehicles  and  equipment  to 

employees; driver qualification, safety, and professionalism; competence; compliance with 
state and federal regulations; and vehicle and equipment ownership, leasing, insuring, 
inspection, and maintenance.” (Id. ¶ 100.) Plaintiff alleges that Ecklund Logistics also 
knew of its “past history of serious and fatal collisions, and other unsafe, illegal, and 
unprofessional practices,” including having previously “caus[ed] damages in excess of its 

insurance coverage” and having a “lengthy and public history of litigation, judgments, and 
State and Federal tax liens and judgments.” (Id. ¶¶ 103–04, 109–13, 118.) 
    Moreover, Plaintiff alleges that Ecklund Logistics knew about Mr. Michaels’s past 
employment  history  and  criminal  record,  all  of  which  indicated  that  he  lacked  “the 
judgment,  professionalism,  and  competence  necessary  to  safely  operate  commercial 

vehicles.”  (Id.  ¶¶ 78,  191.)  According  to  Plaintiff,  Ecklund  Logistics  knew  that  Mr. 
Michaels’s history included that he had: been terminated from his prior job one week 
before the June 13 collision because of a safety clearance suspension; failed all areas of an 
annual “check-ride” six months before the June 13 collision because he made “several 
unsafe decisions” and a reviewer had found Mr. Michaels to be “a big danger to himself 
and others on the road”; and been terminated three years before the June 13 collision 

because he allowed his semi-trailer to roll away. (Id. ¶ 81.) Plaintiff alleges that Ecklund 
Logistics also had access to Mr. Michaels’s criminal history and knew or should have 
known that he had convictions for a felony and several misdemeanors, and citations for 
failing to wear a seat belt and carry motor vehicle insurance when operating a vehicle. (Id. 
¶ 84.)                                                                    
    When XPO Logistics hired Ecklund Logistics to be the motor carrier hauling the 

June 2019 load, Plaintiff alleges that Ecklund knowingly agreed to certain parameters for 
the freight load. (Pl.’s Ex. B ¶¶ 42–43.) According to the TAC, these included that Ecklund 
Logistics would: pick up the load on June 12, 2019, between 7:00 a.m. and 3:00 p.m.; 
deliver the load on June 13, 2019, between 8:00 a.m. and 9:00 a.m.; call XPO Logistics to 
report the pickup, transit status, and delivery status; call XPO at least twice a day minimum 

while carrying its freight; and immediately report “discrepancies or incident[s] affecting 
transportation” of the load. (Id. ¶ 45.) Plaintiff alleges that Ecklund Logistics also agreed 
to transport shipments without delay and to immediately notify XPO Logistics of likely 
delays (id. ¶ 47(b)); to not violate the law, speed limits, safety rules, or hours of service 
rules (id. ¶ 48(h)); to notify XPO of changes in pick-up or delivery times (id. ¶ 48(j)); to 

pay XPO any assessed charges for late delivery without prior notice and to bear the expense 
for late delivery (id. ¶ 48(l), (o), (q)); and to track driver movements and effectively screen, 
monitor, and train drivers handling its cargo (id. ¶ 48(x)). Additionally, Plaintiff alleges 
that on June 12, 2019, Ecklund Logistics knew that Mr. Michaels picked up the freight load 
later than anticipated because of brake and clutch repairs that had to be completed before 
Mr. Michaels could depart. (Id. ¶¶ 48,4 59.)                              

                      ii.    Facts  that  Ecklund  Logistics  Allegedly  
                             Disregarded                                 

    According to the TAC, although Ecklund Logistics knew or should have known that 
Mr. Michaels’s employment history and criminal record demonstrated his unfitness to 
safely operate commercial vehicles, Ecklund failed to investigate—or simply ignored—
this information, hiring him despite these facts. (Id. ¶¶ 78–86, 98.) Plaintiff alleges that 
Ecklund Logistics, as Mr. Michaels’s employer, also imposed an unrealistic delivery 
timeline upon Mr. Michaels for the June 2019 load of freight, even though this unrealistic 
timeline would pressure Mr. Michaels to drive unsafely and to violate the FMCSRs to 
follow  Ecklund’s  delivery  instructions.  (Id.  ¶¶ 67,  77.)  According  to  Plaintiff,  in 
dispatching Mr. Michaels with too little time, Ecklund Logistics disregarded the known 
dangers that violating the FMCSRs’ hours of service regulations created, including risks 
of injury to the motoring public. (Id. ¶ 191.)                            
                      iii.   The  Probability  of  Injury to  the  Rights  or 
                             Safety of Others                            

    Plaintiff alleges that the high risk of Ecklund Logistics’s conduct is self-evident: 
fatal collisions with the motoring public. According to Plaintiff, this risk existed whether 
any member of the motoring public was actually harmed, but was, in fact, realized when 
Mr. Russ lost his life in the fatal collision. Plaintiff alleges that his death resulted from 

4 The Court here refers to the second paragraph labeled paragraph 48 in the proposed TAC 
which is located on page 28.                                              
Ecklund Logistics’s disregard of Mr. Michaels’s unfitness to safely operate commercial 
vehicles, combined with its disregard of the fact that Mr. Michaels did not have enough 

time to safely deliver the load of freight by between 8:00 and 9:00 a.m. on June 13, 2019. 
(Id. ¶¶ 78, 83, 87, 97, 122–23, 128–29, 134–35, 141–42, 146–47, 150–51, 153, 156, 159–
61.) The TAC alleges that Ecklund Logistics’s duty to adequately evaluate applicants, 
supervise drivers, and monitor employee performance—which it failed to do with Mr. 
Michaels—exists to reduce the probability of injury to “the public and/or its property” by 
placing responsibility on employers to refuse to hire or retain incompetent or negligent 

applicants or employees. (Id. ¶ 159.) Plaintiff further alleges that violating the FMCSRs’ 
hours of service regulations risks the very injuries to the motoring public that occurred here 
in Mr. Russ’s death. (Id. ¶ 191.)                                         
                      iv.    Plaintiff’s Supporting Arguments            

    In  her  Memorandum  in  Support  of  her  Motion  to  Amend  regarding  Ecklund 
Logistics, Plaintiff argues that her Motion against Ecklund Logistics should be granted 
because justice requires it under the case facts; she has demonstrated no undue delay or 
bad faith; it would not result in unfair prejudice to Ecklund Logistics; and the amendments 
would not be futile. (Pl.’s Mem. Supp. Ecklund Mot. at 18, Dkt. No. 140.) Plaintiff argues 
that  her  proposed  TAC  sufficiently  alleges  under  Rule  15  that  Ecklund  Logistics 

disregarded  warnings  about  unsafe  and  unprofessional  driving  in  Mr.  Michaels’s 
employment application when it hired him—warnings that should have led Ecklund to 
decline  to  hire  Mr.  Michaels.  (Id.  at  3–8.)  She  also  argues  that  the  proposed  TAC 
sufficiently alleges Ecklund Logistics dispatched Mr. Michaels on June 12, 2019, with an 
unrealistic delivery timeline—a timeline that would necessitate violations of industry 
standards and FMCSRs, and a breach of his duty of care to the motoring public—to achieve 

on-time delivery, all while threatening him with punishments for late freight deliveries. (Id. 
at 8–12.)                                                                 
    Plaintiff claims that, even if the Court applies 

 as the legal 
standard for measuring her proposed TAC’s sufficiency, her Motion should still be granted 
because,  under  that  Statute,  she  need  only  allege  prima  facie  evidence  of  Ecklund 
Logistics’s deliberate disregard for the rights and safety of others, which she claims she 

has done. (Id. 18–19.) In support of her position, Plaintiff again cites various out-of-Circuit 
cases in which hours of service and speeding violations have resulted in courts permitting 
punitive damages claims. As before, Plaintiff concedes there are no binding precedents in 
this Circuit. (Id. at 23–24.)                                             
                      v.     Ecklund Logistics’s Opposing Arguments      

    Ecklund Logistics opposes Plaintiff’s Motion and asks the Court to deny it in its 
entirety. (Def. Ecklund Logistics’s Mem. Opp’n at 1–2.) Ecklund Logistics argues that 
Plaintiff’s proposed TAC fails to allege sufficient facts that Ecklund had the requisite 
knowledge of, or that it intentionally disregarded facts about, the alleged high probability 
that Mr. Michaels might injure others. (Id. at 20.) It claims that it lawfully hired and 

dispatched Mr. Michaels, and each of these arguments will be discussed below. (Id. at 20–
34.)                                                                      
    As to hiring, Ecklund Logistics claims that Plaintiff admits that Ecklund’s duty to 
hire qualified drivers is governed by Title 

 (setting forth qualifications 
for qualified motor carriers). (Id. at 20 (citing Pl.’s Mem. Supp. Ecklund Mot. at 22).) It 
claims Plaintiff offers no evidence that Ecklund Logistics violated the standard of care 

recognized by the FMCSRs. (Id. at 23.) Specifically, Ecklund Logistics claims that Plaintiff 
has not adequately alleged that Ecklund knew of any facts that showed Mr. Michaels’s 
unfitness to drive a commercial motor vehicle for Ecklund under the 

 
qualified  motor  carrier  standard,  or  that  Ecklund  failed  to  properly  investigate  Mr. 
Michaels’s background under the standard set forth in 

(a) (which gave 
Ecklund 30 days from Mr. Michaels’s hire date to investigate his fitness as an employee). 

(Id. at 20–25.) As to Plaintiff’s claim that Ecklund Logistics should have searched Mr. 
Michael’s  social  media  sites  and  been  aware  of  his  alleged  exhibitions  of 
unprofessionalism, Ecklund contends that, under Wisconsin’s Internet Privacy Protection 
Statute, employers may not ask for access to a prospective employee’s social media 
account, nor is there a statute that creates a duty for employers to view prospective 

employees’ social media accounts that are in the public domain. (Id. at 25 (quoting 

).)  Similarly,  as  to  Mr.  Michaels’s  criminal  record,  Wisconsin’s  Fair 
Employment Act prohibits employers from discriminating against prospective employees 
based on their conviction records. (Id. at 29 (quoting 

).) 
    As to dispatching Mr. Michaels to carry a freight load on June 12, 2019, Ecklund 

Logistics  argues  that  Plaintiff’s  conclusory  statements  that  it  gave Mr.  Michaels  the 
impossible choice of either violating regulations, or traveling too quickly for conditions, 
fails the Iqbal/Twombly pleading standard. (Id.) Ecklund Logistics claims that Plaintiff has 
not set forth clear, convincing, admissible evidence of Ecklund’s knowledge of highly 
probable harm—or the intentional disregard of it—in dispatching Mr. Michaels on June 
12, but instead offers pleadings that are mere supposition. (Id. at 30.)  Finally, Ecklund 

Logistics claims that the criminal charges against Mr. Michaels regarding the June 13, 2019 
collision  are  for  gross  negligence,  a  lower  standard  than  the  heightened  “deliberate 
disregard” under 

, sub. 1(b) that is akin to “willful indifference,” so 
even if Mr. Michaels is convicted of the charges—which he has not yet been—allegations 
relating to the criminal case supply no grounds for punitive damages against Ecklund. (Id. 
at 34–35.)                                                                

                      vi.    Holding                                     

    The Court finds that, taking Plaintiff’s allegations as a whole as true and asking 
whether, if unrebutted, they would support a judgment in Plaintiff’s favor, Plaintiff has 
alleged sufficient facts that the elements of a punitive damages claim are present. To find 
Plaintiff’s pleadings sufficient, Plaintiff must allege enough to reasonably allow the Court 
to conclude that clear and convincing evidence plausibly supports that Ecklund Logistics 
acted with willful indifference.                                          
    Here, there are allegations that, if unrebutted, constitute prima facie evidence of 
more than mere negligence or gross negligence. Ecklund Logistics chose to hire Mr. 
Michaels and to dispatch him with a load of freight for an allegedly unrealistic delivery 

deadline during his first week on the job for Ecklund. The Court can reasonably draw an 
inference from the proposed TAC’s allegations that Ecklund Logistics knew or should have 
known that employing Mr. Michaels to operate a semi-trailer meant placing someone with 
a record of unsafe driving practices on the road with the motoring public, and knew that, 
given Mr. Michaels’s late departure on June 12, 2019, Mr. Michaels would not be able to 
deliver the load on time. Yet, according to Plaintiff’s allegations, Ecklund Logistics did 

not provide Mr. Michaels with any alternative schedule—a silence tantamount to requiring 
Mr. Michaels to try to deliver the load on time. Furthermore, Plaintiff alleges nothing that 
indicates that Mr. Michaels had the independent authority to alter his delivery schedule. 
    Based on these allegations, there is enough to conclude that clear, convincing, and 
admissible evidence plausibly supports the proposition that Ecklund Logistics acted with 
willful indifference. As alleged, Ecklund Logistics knew or should have known that Mr. 

Michaels did not have enough time to both deliver the load and follow reasonable road 
safety practices and hours of service regulations. It knew or should have known that this 
would incentivize him to cut corners that the law does not allow to be cut—such as 
unreasonably driving too quickly and aggressively for traffic conditions and violating the 
hours of service regulations—yet did nothing to either alter the delivery schedule or notify 

Mr. Michaels that he would not face any punitive consequences for a late delivery (despite 
Ecklund Logistics’s alleged policies to the contrary). These facts connect knowledge and 
deliberate disregard despite the risks to the motoring public as required by 

.20—risks borne out by the fatal collision on June 13. Such actions represent more 
than just allowing events to unfold “without even a scant care”; these allegations rise to the 

level of “reckless disregard for the probable consequences” equating to “a willful and 
intentional wrong.” See Dolphin Kickboxing Co., 335 F.R.D. at 401 n.4.    
     Therefore, Plaintiff’s allegations that (1) Ecklund Logistics knew that violating the 
FMCSRs’ hours  of  service  regulations  creates  dangers;  (2)  disregarded  those  known 
dangers; and (3) aided, abetted, and encouraged Mr. Michaels to violate the hours of service 
regulations in violation of 

 (id. ¶ 191) are sufficiently supported by the 

facts alleged in her proposed TAC. Plaintiff’s allegations, if found credible by a jury, would 
allow a factfinder to determine that Ecklund Logistics knew (or should have known) of a 
high risk that Mr. Michaels would drive unsafely on June 12 and 13, but that it intentionally 
disregarded the risk because it cared more about getting XPO Logistics’s load delivered 
than it did about safety. In re Bair Hugger, 

, at *8 (citing Iqbal, 

).                                                                  

    In sum, because Plaintiff has alleged facts that, if unrebutted, amount to clear and 
convincing evidence that Ecklund Logistics acted with willful indifference to a known or 
ascertainable risk of probable harm, Plaintiff’s TAC meets the standard of 

. The Court concludes, pursuant to Federal Rule of Civil Procedure 15(a)(2), that 
Plaintiff’s Motion as to Defendant Ecklund Logistics is not, therefore, futile. Accordingly, 

the Court grants Plaintiff’s Motion seeking leave to amend the Complaint to add punitive 
damages  as  to  Ecklund  Logistics.  Plaintiff  shall  file  her  proposed  Third  Amended 
Complaint and, for the reasons that follow, shall do so within 14 days of the date of this 
Order.                                                                    
II.  SUBJECT-MATTER JURISDICTION                                          

    Federal courts have an obligation to inquire into subject-matter jurisdiction, even if 
no party raises the issue. See Arbaugh v. Y&H Corp., 

 (2006) (citing 
Ruhrgas AG v. Marathon Oil Co., 

 (1999)); Oglala Sioux Tribe v. 
Fleming, 

 (8th Cir. 2018) (citing Arbaugh); Reece v. Bank of New York 
Mellon, 

 (8th Cir. 2014) (citation omitted). In line with this legal 
principle,  because  the  Court  has  a  concern  with  the  way  in  which  subject-matter 

jurisdiction is pleaded, it sua sponte considers the adequacy of the operative pleadings as 
to federal subject-matter jurisdiction in this action.                    
    A.   Background                                                      
    Plaintiff alleges that she “is Wife and Trustee for the Heirs and Next of Kin of 
Andrew Russ, deceased, and is a citizen of Minnesota.” (SAC ¶ 2.) For each respective 
Defendant named in this action, Plaintiff alleges that: XPO Logistics, LLC has a “principal 

place of business . . . [in] Connecticut” (id. ¶ 5); Ecklund Logistics, Inc. “is a Wisconsin 
corporation  with  its  principal  place  of  business  .  .  .  [in]  Wisconsin”  (id.  ¶ 8);  KLE 
Equipment Leasing, LLC “is a Wisconsin corporation sharing a principal place of business 
. . . [in] Wisconsin” (id. ¶ 10); and Shane Thomas Michaels “is a resident of the State of 
Wisconsin” (id. ¶ 12).                                                    

    B.   Legal Standard for Federal Subject-Matter Jurisdiction          
    Subject-matter jurisdiction is a threshold requirement for federal-court litigation; 
where it is lacking, a federal court cannot proceed with an action. See, e.g., Sinochem Int’l 
Co. v. Malaysia Int’l Shipping Corp., 

, 430–31 (2007) (citing Steel Co. v. 
Citizens for Better Env’t, 

 (1998)). Furthermore, it is a plaintiff’s burden to 

show that subject-matter jurisdiction exists. See, e.g., ABF Freight Sys., Inc. v. Int’l Bhd. 
of Teamsters, 

 (8th Cir. 2011) (citing Green Acres Enters., Inc. v. United 
States, 

, 856 (8th Cir. 2005)). Under Rule 8 of the Federal Rules of Civil 
Procedure, a “pleading that states a claim for relief”—such as the Complaint—“must 
contain . . . a short and plain statement of the grounds for the court’s jurisdiction.” Fed. R. 
Civ. P. 8(a)(1). Plaintiff contends that this Court has subject-matter jurisdiction over this 

action based on Title 

 (diversity of citizenship jurisdiction). (SAC ¶ 16.) 
However, as currently pleaded, Plaintiff’s SAC fails to allege this Court’s subject-matter 
jurisdiction with the specificity required.                               
    In relevant part, Title 

 states that “[t]he district courts shall have 
original jurisdiction of all civil actions where the matter in controversy exceeds the sum or 
value of $75,000 . . . and is between . . . citizens of different  States[.]” 

(a)(1). Diversity jurisdiction demands “complete diversity”: each defendant must be 
a citizen of a different state from each plaintiff. See, e.g., Owen Equip. & Erection Co. v. 
Kroger, 

 (1978); Junk v. Terminix Int’l Co., 

 (8th Cir. 
2010) (quoting In re Prempro Prods. Liab. Litig., 

 (8th Cir. 2010)). 
    C.   Discussion of the Party Citizenships Alleged in the SAC         

    For the pleadings to establish diversity, a plaintiff “must set forth with specificity 
the citizenship of the parties.” Barclay Square Properties v. Midwest Fed. Sav. & Loan 
Ass’n of Minneapolis, 

, 969 (8th Cir. 1990) (citation omitted). While the 
Plaintiff’s SAC sufficiently alleges the citizenship of Ecklund Logistics as a corporation, 
see In re Arrowhead Cap. Mgmt. LLC Class Litig., 

 (D. Minn. 

2010), Plaintiff’s SAC requires amendment to adequately plead the citizenship of the LLC 
and individual Defendants as follows.                                     
         1.   Citizenship of Limited Liability Companies                 
    Defendants XPO Logistics and KLE Equipment are limited liability companies. 

“[F]or purposes of diversity jurisdiction, a limited-liability company (‘LLC’) takes the 
citizenship  of  all  of  its  members  and  ‘sub-members’  and  ‘sub-sub-members.’”  Key 
Enterprises, LLC v. Morgan, No. 12-CV-2628 (PJS/JSM), 

, at *1 (D. 
Minn. Jan. 29, 2013). Merely alleging where an LLC is located or principally conducts 
business is insufficient. See Grover-Tsimi v. Am. Laser Centers, LLC, No. 09-CV-2729 
(DSD/JJK), 

, *1 (D. Minn. Feb. 9, 2010). “When one of the parties to the 

action is a limited partnership, the citizenship of each general and limited partner must be 
considered  in  determining  whether  complete  diversity  of  citizenship  exists.”  Barclay 
Square Properties, 893 F.2d at 969 (citing Stouffer Corp. v. Breckenridge, 

 
(8th Cir. 1988)). “‘[B]ecause a member of a limited liability company may itself have 
multiple members—and thus may itself have multiple citizenships—the federal court needs 

to know the citizenship of each “sub-member” as well[,]’” if any. Fifth Third Mortg. Co. 
v. Lamey, No. 12-CV-2923 (JNE/TNL), 

, at *1 (D. Minn. Nov. 27, 2012) 
(citing Delay v. Rosenthal Collins Grp., LLC, 

 (6th Cir. 2009)). 
    Given the allegations in the SAC, the Court has serious concerns about its federal 
subject-matter jurisdiction as to the LLC Defendants. Plaintiff’s  allegation that XPO 

Logistics has a “principal place of business . . . [in] Connecticut” fails to specify the 
citizenship of each of XPO Logistics’s members. (SAC ¶ 5.) It is likewise insufficient for 
Plaintiff to allege that KLE Equipment “is a Wisconsin corporation sharing a principal 
place of business . . . [in] Wisconsin.” (Id. ¶ 10.) The Court may not take Plaintiff at her 
word that “complete diversity exists between the parties.” (Id. ¶ 16.) To satisfy her burden 
of alleging diversity jurisdiction, Plaintiff must allege with specificity the citizenship of 

each LLC Defendant’s members (and if applicable, each member’s sub-members). 
         2.   Citizenship of Individuals                                 
    Defendant Michaels is an individual that Plaintiff alleges “is a resident of the State 
of Wisconsin.” (Id. ¶ 12 (emphasis added).) Diversity jurisdiction requires that Plaintiff is 
not a citizen of the same state as any Defendant in this action. See Owen Equip., 

. In this Circuit, alleging that a defendant is a “resident” of a state is not the same as 

alleging a defendant is a “citizen” of that state. See Reece, 

 (citations 
omitted) (“Because of this ambiguity in the word ‘resident’—as compared to ‘citizen’ . . . 
—we cannot satisfy ourselves that diversity jurisdiction is proper based solely on an 
allegation a party is (or was) a ‘resident’ of a particular state.”) Thus, Plaintiff’s allegation 
that Mr. Michaels resides in Wisconsin is not pleaded with enough specificity to assure this 

Court that complete diversity exists. To satisfy her burden,  Plaintiff must  allege the 
citizenship of Mr. Michaels.                                              
         3.   Holding                                                    
    When a pleading fails to adequately allege diversity jurisdiction, courts have the 
discretion  to  allow  an  amendment.  See 

  (“Defective  allegations  of 

jurisdiction may be amended, upon terms, in the trial or appellate courts.”); see also 
Dubach v. Weitzel, 

 (8th Cir. 1998). The Court will follow that path here. 
Therefore, when Plaintiff files, within fourteen days, her Third Amended Complaint, that 
Third Amended Complaint shall allege with specificity the citizenship of each party—
including the citizenship of the LLC Defendants and of Mr. Michaels—at the time that 
Plaintiff commenced this action. See Grupo Dataflux v. Atlas Glob. Grp., L.P., 

,  574–75  (2004)  (citing  Conolly  v.  Taylor,  

  (1829) (stating  the 
longstanding principle that jurisdiction depends upon the citizenship of each party at the 
time that a plaintiff commences their suit)).                             

    Accordingly,  based  on  all  the  files,  records,  and  proceedings  herein,  IT  IS 
HEREBY ORDERED that:                                                      

    1.   Plaintiff Trina Russ’s Motion for Leave to File a Third Amended Complaint 
         to Add a Claim for Punitive Damages Against XPO Logistics, LLC (Dkt. 
         No. 134) is DENIED;                                             
    2.   Plaintiff’s Motion for Leave to File a Third Amended Complaint to Add a 
         Claim for Punitive Damages Against Ecklund Logistics, Inc. (Dkt. No. 138) 

         is GRANTED; and                                                 
    3.   Plaintiff shall, within fourteen days of the date of this Order, file a Third 
         Amended  Complaint  that  adds  her  claim  for  punitive  damages  against 
         Ecklund Logistics, Inc., and that alleges with specificity the citizenship of 
         each party at the time that Plaintiff commenced this action.    



Dated: March 23, 2022         s/  John F. Docherty                        
                             JOHN F. DOCHERTY                            
                             United States Magistrate Judge              

                UNITED STATES DISTRICT COURT                             
                    DISTRICT OF MINNESOTA                                


TRINA RUSS,                        Case No. 19-CV-2719 (DSD/JFD)         

               Plaintiff,                                                

v.                                                                       
                                ORDER ON PLAINTIFF’S MOTIONS             
ECKLUND LOGISTICS, INC.,         TO AMEND HER COMPLAINT TO               
KLE EQUIPMENT LEASING, LLC,        ADD CLAIMS FOR PUNITIVE               
SHANE THOMAS MICHAELS, and                 DAMAGES                       
XPO LOGISTICS, LLC,                                                      

               Defendants.                                               


    This matter is before the Court on Plaintiff’s Motions for Leave to File a Third 
Amended Complaint to Add a Claim for Punitive Damages Against Defendants Ecklund 
Logistics, Inc. (“Pl.’s Ecklund Mot.,” Dkt. No. 134), and XPO Logistics, LLC (“Pl.’s XPO 
Mot.,” Dkt. No. 138) (collectively “Motions to Amend”).                   
    Plaintiff Trina Russ brought this wrongful death action against four Defendants for 
their alleged involvement in a fatal vehicle collision in June of 2019 in which Ms. Russ’s 
husband (“Mr. Russ” or “Decedent”) died. This Court held a motions hearing on Tuesday, 
January 18, 2022, at which Jake Jagdfeld and Mike Johnson appeared for Plaintiff; Mike 
Moline  and  Peter  Culp  appeared  for  Defendants  Ecklund  Logistics,  Inc.  (“Ecklund 
Logistics”),  KLE  Equipment  Leasing,  LLC  (“KLE  Equipment”),  and  Shane  Thomas 
Michaels  (“Mr.  Michaels”);  and  Gordon  Hansmeier  appeared  for  Defendant  XPO 
Logistics, LLC (“XPO Logistics”). (Hr’g Mins., Dkt. No. 177.) For the reasons set forth 
below, the Court denies Plaintiff’s Motion as to XPO Logistics, but grants Plaintiff’s 
Motion as to Ecklund Logistics. The Court also sua sponte orders Plaintiff to, within 14 
days, file her Third Amended Complaint and allege with specificity the citizenship of each 

party at the time of this action’s commencement, in order that the Court may adequately 
assess whether it has subject matter jurisdiction over this case. That will depend upon 
whether complete diversity exists between Plaintiff and all Defendants.   
I.   PLAINTIFF’S MOTIONS TO AMEND                                         
    A.   Background                                                      
    The Court will first review the facts alleged, procedural posture, and the parties’ 

general arguments for and against Plaintiff’s Motions to Amend.           
         1.   The Proposed Third Amended Complaint’s Alleged Facts       
    The  following  facts  are  taken  from  the  proposed  Third  Amended  Complaint 
(“TAC,” Dkt. No. 165-2) which the Court takes as true for purposes of these Motions. 
Plaintiff alleges that on June 13, 2019, Defendant Michaels struck Decedent Andrew 

Russ’s car from behind on an interstate highway while driving a semi-trailer registered to 
Defendant Ecklund Logistics and owned by KLE Equipment, and while hauling a freight 
load that XPO Logistics had subcontracted Ecklund to carry. (Id. ¶¶ 19–20.) Plaintiff 
alleges that his, in turn, caused a chain-reaction crash involving three other vehicles besides 
Mr. Russ’s. (Id.) First responders could not revive Mr. Russ, and hospital staff pronounced 

him dead shortly afterwards. (Id. ¶¶ 24–27.)                              
    Four Defendants are named concerning the collision resulting in Mr. Russ’s death. 
Plaintiff alleges that Defendant XPO Logistics is a transportation logistics company that 
hired Defendant Ecklund Logistics, a freight hauling company, to transport a load of freight 
on June 12 from Waupaca, Wisconsin to Thief River Falls, Minnesota. (Id. ¶¶ 6–9, 35.) 
According to Plaintiff’s allegations, Defendant KLE Equipment owned the semi-trailer in 

question, which it had leased to Ecklund Logistics. (Id. ¶ 11.) Plaintiff also alleges that 
Ecklund Logistics hired Defendant Shane Thomas Michaels as its employee and, on his 
second day on the job, tasked him with delivering a load of freight in the semi-trailer 
involved in the collision. (Id. ¶¶ 12–13.) Plaintiff’s Motions concern XPO Logistics and 
Ecklund Logistics; Plaintiff does not seek leave to amend to add a claim for punitive 
damages against either KLE Equipment Leasing, LLC, or Mr. Michaels. The Court will 

therefore focus on the proposed TAC’s allegations as to Defendants XPO Logistics and 
Ecklund Logistics, taking them as true for the purposes of deciding these Motions. 
    Plaintiff alleges that XPO Logistics failed to investigate and ensure that Ecklund 
Logistics was a safe and professional company with safe and professional drivers. (Id. 
¶ 101.) Had XPO Logistics investigated Ecklund Logistics, Plaintiff alleges that it would 

have found various red flags about Ecklund, including its history of insurance claims 
showing that it had caused many other fatal collisions, its repeated hours of service 
violations, and past judgments and liens against it. (Id. ¶¶ 101–20.)     
    Plaintiff  alleges  that  Ecklund  Logistics  knew  or  should  have  known  that  Mr. 
Michaels’s employment history and criminal record raised red flags, including that he had 

been fired for suspension of his safety clearance, failed an annual safety check, once 
allowed  his  semi-trailer  to  roll  away,  had  been  convicted  of  a  felony  and  two 
misdemeanors, and had been cited for various vehicle-related violations. (Id. ¶¶ 78–81, 84.) 
Despite this, Plaintiff alleges that Ecklund Logistics hired Mr. Michaels, a decision that led 
directly to the collision at issue in this action. (Id. ¶¶ 86–87.) According to the allegations, 
Mr. Michaels’s social media posts provided further evidence of his unprofessionalism and 

poor judgment. (Id. ¶ 88.) The proposed TAC details posts depicting crashed semi-trailers 
and jokes about drivers’ failures to lawfully log service hours. (Id. ¶¶ 88–89, 92, 95.) 
Although  Plaintiff  does  not  specifically  allege  in  the  proposed  TAC  that  Ecklund 
Logistics—or  XPO  Logistics  by  extension—knew  or  should  have  known  about  Mr. 
Michaels’s Facebook posts, XPO and Ecklund take these allegations as an effort by 
Plaintiff to create that inference (see, e.g., Pl.’s Mem. Supp. Ecklund Mot. at 7–8; Def. 

Ecklund Logistics’s Mem. Opp’n at 25–27).                                 
    In the days leading up to the collision, Plaintiff alleges that Ecklund Logistics 
directed Mr. Michaels to haul a load of freight from Waupaca, Wisconsin to Thief River 
Falls, Minnesota—a trip estimated to take approximately 8 hours and 45 minutes of driving 
time under normal traffic and conditions—and to deliver it by between 8:00 and 9:00 a.m. 

on June 13, 2019.1 (Pl.’s Ex. B ¶¶ 40, 45(d), 57; see also Pl.’s Ex. F at 2, Dkt. No. 95-1; 
Pl.’s Ex. K at 2, Dkt. No. 95-1.) Plaintiff alleges that XPO Logistics and Ecklund Logistics 
created the context in which Mr. Michaels felt “under pressure to drive unsafely and in 
violation of the Federal Motor Carrier Safety Regulations (“FMCSRs”)2 because of the 


1 The Court notes that there are different accounts of Mr. Michaels’s precise delivery 
deadline, with some allegations and exhibits stating that the deadline was 8:00 a.m., and 
others stating that it was between 8:00 and 9:00 a.m. (See, e.g., Pl.’s Ex. B ¶¶ 40, 45(d), 
57; Pl.’s Ex. F at 2; Pl.’s Ex. K at 2.) These discrepancies do not materially change the 
Court’s analysis of these Motions.                                        
2 The FMCSRs are regulations issues by the United States Department of Transportation’s 
Federal Motor Carrier Safety Administration (“FMCSA”), whose mission “is to reduce 
crashes, injuries and fatalities involving large trucks and buses,” and they are codified at 
delivery timeline [they] had set for him.” (Id. ¶ 77.) According to Plaintiff, the day before 
the collision, the semi-trailer involved in the collision required brake and clutch repairs. 

(Id. ¶ 52.) When Mr. Michaels picked up the load of freight from Waupaca and departed 
with it for Thief River Falls at 2:34 p.m., Plaintiff alleges that he was already running late 
because of the time taken by those repairs. (Id. ¶¶ 48–49, 59.) The TAC alleges that, 
according to his log, Mr. Michaels stopped in Hudson, Wisconsin overnight, for a required 
ten-hour rest period, then departed for Thief River Falls the next morning at 6:35 a.m. (Id. 
¶ 55.) Because the drive between Hudson and Thief River Falls is approximately five hours 

and twenty minutes, Plaintiff alleges that it was not possible for Mr. Michaels to deliver 
the freight on time by between 8:00 and 9:00 a.m. that morning. (Id. ¶¶ 56–57.) Plaintiff 
alleges that at 6:46 a.m. on June 13—11 minutes after starting to drive for the day—Mr. 
Michaels accessed his online Facebook account via his cell phone and created a post. (Id. 
¶ 68.) According to Plaintiff’s allegations, the collision resulting in Mr. Russ’s death 

occurred a few minutes after Mr. Michaels’s Facebook post. (Id. ¶ 58.)    
    Plaintiff’s  TAC  alleges  that  the  Minnesota  State  Patrol  and  various  witnesses 
described the collision and its aftermath. The Minnesota Motor Vehicle Crash Report 
completed by the  State Patrol stated that Mr. Michaels had  just changed lanes, was 
distracted, was driving too fast for the conditions, and did not see traffic ahead of him slow 

down before the collision. (Id. ¶ 60; see also Pl.’s Ex. D at 1, 6, Dkt. No. 95-1.) One witness 

49 C.F.R. subchapter B, parts 300–399. FMCSA, Our Mission, https://www.fmcsa.dot. 
gov/mission  (last  visited  February  23,  2022).  “[A]ll  employers,  employees,  and 
commercial motor vehicles that transport property or passengers in interstate commerce” 
are required to comply with the FMCSRs. 

.                
to the collision stated that she saw Mr. Michaels change lanes several times before striking 
Mr. Russ’s car from behind. (Pl.’s Ex. B ¶ 61 (citing Pl.’s Ex. F at 2).) Another witness 

recounted that she saw Mr. Michaels wearing a pair of dual-sided headphones around his 
neck after the crash. (Id. ¶ 73.) The State Patrol determined that Mr. Michaels’s semi-trailer 
struck Mr. Russ’s car at highway speeds and that Mr. Michaels had neither tried to brake 
nor swerve before the impact. (Id. ¶ 62.) Mr. Michaels told the Minnesota State Patrol on 
the scene that he was “running very late” because of the repairs his semi-trailer had required 
the day before. (Id. ¶ 59 (citing Pl.’s Ex. F at 2).)                     

    A criminal Complaint in this matter has been filed against Mr. Michaels, which 
Plaintiff incorporates, in part, into her proposed TAC, and states that Mr. Michaels’s 
conduct before colliding with Mr. Russ                                    
    constituted gross negligence in that his speed was greater than the conditions 
    of the roadway would permit as safe or reasonable, his speed was far greater 
    than the vehicles traveling in front of him which he acknowledged he saw, 
    he was traveling through a high traffic area on his way to a delivery that he 
    was significantly late for, he was admittedly looking at his mirrors and not 
    the road in front of him just prior to the crash, he had been accessing his 
    phone and Facebook less than 10 minutes before the crash, and he made no 
    effort to slow his semi-tractor trailer which was traveling at highway speeds 
    despite multiple vehicle[s] being in front of his vehicle.           

(Id. ¶ 76 (citing Pl.’s Ex. F at 2).)                                     
         2.   Procedural Posture                                         
    On October 16, 2019, Plaintiff filed this case. (Complaint, Dkt. No. 1.) She filed the 
operative Second Amended Complaint (“SAC”) on June 7, 2021. (SAC, Dkt. No. 95.) She 
brings 12 counts against Defendants. (Id. ¶¶ 121–88.) Relevant to this Motion relating to 
Ecklund Logistics and XPO Logistics, Plaintiff brings claims on behalf of Mr. Russ against 
each  of  these  Defendants  for  negligence,  respondeat  superior/vicarious  liability, 
agency/vicarious liability, joint enterprise, joint venture, negligent hiring or selection and 

retention/supervision/entrustment, violations of the FMCSRs, and, on behalf of herself, a 
loss of consortium claim. (Id. ¶¶ 121–51, 157–61, 171–88.) She also claims that Ecklund 
Logistics and KLE Equipment were alter egos of each other and, as such, are vicariously 
liable for each other’s torts. (Id. ¶¶ 152–56.) Plaintiff seeks actual damages for pecuniary 
losses from Mr. Russ’s death, loss of consortium damages, medical bills and expenses, and 
funeral expenses, which she states exceed $10 million when combined. (Id. ¶¶ 189–92.) 

    On October 1, 2021, Defendants filed a Motion to Stay to await developments in 
Mr. Michaels’s state-court criminal case (Defs.’ Mot. Stay at 1, Dkt. No. 121), which this 
Court granted in part and denied in part, temporarily prohibiting any questioning of Mr. 
Michaels until his criminal case had “concluded by sentencing following a guilty plea or 
guilty  verdict,  or  by  dismissal  of  the  charges[,]”  but  ordering  “[a]ll  other  pretrial 

components of this case . . . [to] proceed as scheduled” (Oct. 19 Order at 2, Dkt. No. 131). 
         3.   The Parties’ Positions on Plaintiff’s Motions to Amend     
    Plaintiff moves for an Order granting her leave to amend her Complaint to add 
punitive damages claims against Defendants Ecklund Logistics and XPO Logistics. (Pl.’s 
Ecklund Mot. at 1; Pl.’s XPO Mot. at 1.) Regarding the legal standard that this Court should 

apply, Plaintiff argues that, while courts in this District have historically had divergent 
practices in determining whether to apply Minnesota Statute § 549.191–20 (“Minn. Stat. 
§ 549.171–20”) (a state statute governing punitive damages under Minnesota law) or 
Federal Rule of Civil Procedure 15 (a federal procedural rule governing motions to amend 
the pleadings in federal civil actions), after the United States Supreme Court’s decision in 
Shady Grove Assocs., P.A. v. Allstate Ins. Co., 

 (2010) (holding that a class 

action lawsuit could proceed in federal court under Federal Rule of Civil Procedure 23, 
even though a New York statute procedurally prohibited it), most courts now apply Rule 
15. (Id. at 16–17.) She argues this Court should do the same. (Id. at 21.)  
    Both Ecklund Logistics and XPO Logistics oppose Plaintiff’s Motions to amend the 
SAC to add punitive damages against them and ask the Court to deny the Motions entirely.  
(Def. XPO Logistics’s Mem. Opp’n at 1–4, Dkt. No. 153; Def. Ecklund Logistics’s Mem. 

Opp’n at 1–2, Dkt. No. 154.) While Defendants agree with Plaintiff that Federal Rule of 
Civil Procedure 15 supplies the procedural rule of decision for these Motions, they contend 
that 

 supplies the standard for measuring the legal sufficiency of the 
punitive damages claims pleaded. (XPO Logistics’s Mem. Opp’n at 7–8; Def. Ecklund 
Logistics’s Mem. Opp’n at 1–2.) They then argue that Plaintiff’s proposed amendments 

fail to allege sufficient facts under § 549.20 to show that Defendants had the requisite 
knowledge of, or that they intentionally disregarded facts about, the high probability that 
Mr. Michaels might injure others, and, therefore, her proposed amendments are futile under 
Rule 15. (XPO Logistics’s Mem. Opp’n at 7–15; Def. Ecklund Logistics’s Mem. Opp’n at 
20.)                                                                      

    Speaking on behalf of Defendants during oral arguments at the motions hearing, 
Defendants’ counsel argued that neither Ecklund Logistics nor XPO Logistics had notice 
that Mr. Michaels was an unfit hire; that Mr. Michaels committed no hours of service 
violations or documented speeding violations during his transportation of the load; that 
there was still time for Ecklund Logistics to change the delivery time for Mr. Michaels’s 
freight load once it opened for business on June 13; that there is no private cause of action 

for violations of the FMCSRs; and that Mr. Michaels showed no indication of being under 
pressure.                                                                 
    B.   Legal Standards for Plaintiff’s Motions to Amend                
    “Under the Erie doctrine, federal courts sitting in diversity apply state substantive 
law and federal procedural law.” Gasperini v. Ctr. for Humans., Inc., 

 
(1996) (citing Erie R. Co. v. Tompkins, 

 (1938)). The Court will review 

both below.                                                               
         1.   Applicable Procedural Law                                  
    When evaluating a motion to amend a complaint to add a punitive damages claim, 
both Federal Rule of Civil Procedure 15(a)(2) and 

 are candidates to 
provide the applicable procedural law. Fed. R. Civ. P. 15(a)(2) provides that “a party may 

amend its pleading only with the opposing party’s written consent or the court’s leave. The 
court should freely give leave when justice so requires.” The right to amend is not absolute, 
however. Sherman v. Winco Fireworks, Inc., 

 (8th Cir. 2008). Leave to 
amend may be denied for “compelling reasons such as undue delay, bad faith, or dilatory 
motive, repeated failure to cure deficiencies by amendments previously allowed, undue 

prejudice to the non-moving party, or futility of the amendment.” 

 (citing Moses.com 
Sec., Inc. v. Comprehensive Software Sys., Inc., 

 (8th Cir. 2005)). 
    

 requires a party seeking punitive damages to provide the court 
with “one or more affidavits showing the factual basis for the claim” and also requires the 
party to specify which of several possible legal bases in 

 it is premising 
its claim for punitive damages upon.                                      

    Since shortly after the U.S. Supreme Court’s decision in Shady Grove, most courts 
in this district sitting in diversity have looked to Fed. R. Civ. P. 15(a)(2), not 

, for the procedural law governing a  motion to amend a complaint to add a claim 
for punitive damages. See, e.g., Shank v. Carleton College, No. 16-CV-1154 (PJS/HB), 

 *4 (D. Minn. Oct. 15, 2018); In re Bair Hugger Forced Air Warming 
Devices Prods. Liab. Litig., No. 15-MDL-2666 (JNE/FLN), 

, *5–6 (D. 

Minn. July 27, 2017). But see Inline Packaging, LLC v. Graphic Packaging Int’l, LLC, No. 
15-CV-3183 (ADM/LIB), 

, at *31 (D. Minn. Mar. 8, 2018), objs. 
overruled, 

 (D. Minn. 2018), aff’d, 

 (8th Cir. 2020) 
(holding that parties seeking to add a punitive damages claim must follow the procedure 
set out in 

). In deciding the present Motions to Amend, this Court 

finds, consistent with the post-Shady Grove weight of authority in this district, that Federal 
Rule of Civil Procedure 15(a)(2) provides the applicable procedural law.  
         2.   Applicable Substantive State Law                           
    However, a place still remains for Minnesota state law on punitive damages when a 
party opposing an attempt to amend a complaint by adding a punitive damages claim 

grounds its opposition to the amendment on an assertion that the amendment would be 
futile. In that situation—such as the one now before this Court—to decide futility, the 
federal court looks to Minnesota state substantive law on punitive damages, 

, to find the elements that a party must prove to be awarded punitive damages and 
measures Plaintiff’s factual allegations against the substantive standards of that statute. See 
Hamilton v. Franchoice, Inc., No. 19-CV-1426 (MJD/ECW), 

, at *6 (D. 

Minn. May 6, 2020) (“Section 549.20 governs the scope of punitive damages, and . . . 
Plaintiffs need to plausibly allege a claim for punitive damages that meets the substantive 
requirements of that statute . . . .”) .                                  
    

 states:                                         
     (a)  Punitive damages shall be allowed in civil actions only upon clear and 
         convincing evidence that the acts of the defendant show deliberate 
         disregard for the rights or safety of others.                   

     (b)  A defendant has acted with deliberate disregard for the rights or safety 
         of others if the defendant has knowledge of facts or intentionally 
         disregards facts that create a high probability of injury to the rights or 
         safety of others and:                                           

         (1)  deliberately proceeds to act in conscious or intentional disregard 
             of the high degree of probability of injury to the rights or safety 
             of others; or                                               

         (2)  deliberately  proceeds  to  act  with  indifference  to  the  high 
            probability of injury to the rights or safety of others.     

, subd. 1.                                            
    Defendants Ecklund Logistics and XPO Logistics assert that Plaintiff should not be 
allowed to add a claim for punitive damages to her complaint because it would be futile. 
(Def. XPO Logistics’s Mem. Opp’n at 2; Def. Ecklund Logistics’s Mem. Opp’n at 1.) A 
proposed claim is futile if it “could not withstand a motion to dismiss under Rule 12(b)(6) 
of the Federal Rules of Civil Procedure.” See Cornelia I. Crowell GST Trust v. Possis Med., 
Inc., 

 (8th Cir. 2008). Rule 12(b)(6) requires dismissal when a pleading 
fails “to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 

 (2007). The party asserting the claim need not plead “detailed factual 
allegations,” but mere “labels and conclusions” or “a formulaic recitation of the elements 

of a cause of action will not do.” 

. For a claim to be facially plausible, the party 
must allege “factual content that allows the court to draw the reasonable inference that the 
[opposing party] is liable for the misconduct alleged.” Ashcroft v. Iqbal, 

 
(2009). In applying this standard, the Court accepts the factual allegations as true and views 
them most favorably to the pleading party. Hager v. Ark. Dep’t of Health, 

 (8th Cir. 2013).                                                     

    

 requires clear and convincing evidence of deliberate disregard 
for the rights or safety of others. “Under Minnesota law, a complaint cannot be amended 
to add a claim for punitive damages unless the motion to amend is supported by prima facie 
clear and convincing evidence that a defendant has shown deliberate disregard for the rights 
and safety of others.” In re McNeilus Mfg. Explosion Coordinated Litig., No. 17-CV-5237 

(PJS/KMM), 

, at *2 n.2 (D. Minn. June 6, 2019) (citing Ulrich v. City 
of Crosby, 

, 868–69 (D. Minn. 1994)).                     
    “Deliberate  disregard  occurs  when  ‘the  defendant  has  knowledge  of  facts  or 
intentionally disregards facts that create a high probability of injury to the rights or safety 
of others.’” 

 (citing 

, subd. 1(b)). More than negligence or even 

gross negligence is required to sufficiently allege a claim for punitive damages. See 
Dolphin Kickboxing Co. v. Franchoice, Inc., 

, 401 (D. Minn. 2020). “In 
Minnesota, negligence is generally defined as the failure to exercise such care as persons 
of ordinary prudence usually exercise under such circumstances.” Anderson v. Rugged 
Races LLC, 

, 1277 (D. Minn. 2020) (citing Domagala v. Rolland, 

 (Minn. 2011)) (cleaned up). “Minnesota law defines gross negligence as 

without even scant care but not with such reckless disregard of probable consequences as 
is equivalent to a willful and intentional wrong.” Dolphin Kickboxing Co., 335 F.R.D. at 
401 n.4 (citing Greer v. Walsh Constr. Co., No. 15-CV-465 (PAM/JSM), 

,  at  *8  (D.  Minn.  Feb.  23,  2016))  (cleaned  up).  With  these  procedural  and 
substantive standards in mind, the Court now turns to the Motions at hand. 

    C.   Discussion of Plaintiff’s Motions to Amend                      
    On January 14, 2022, the Court granted Plaintiff’s Motion to Supplement the Record 
with the proposed Third Amended Complaint (“TAC”) (Pl.’s Ex. B, Dkt. No. 165-2), and 
the redlined copy of the proposed TAC (Pl.’s Ex. A, Dkt. No. 165-1). Because of that 
Order, these documents are considered part of the record upon which the Court will decide 
these Motions. (See Jan. 14 Order at 3.) The Court therefore disregards Defendants’ 

arguments that the omission of these documents earlier is reason to deny the Motions for 
Leave to Amend,  as those omissions were mooted by the Court’s January 14 Order. 
    When  deciding  whether  Plaintiff  has  adequately  alleged  claims  for  punitive 
damages under 

, the Court considers only what Plaintiff has alleged in 
her proposed TAC, disregarding Defendants’ rebuttals and the evidence presented in 

opposition to Plaintiff’s Motions. See In re McNeilus, 

, at *2 (citing 
Iqbal, 

) (“Under Rule 12(b)(6), courts look only at the sufficiency of the 
allegations in the proposed amended complaint to determine whether it contain[s] sufficient 
factual matter, accepted as true, to state a claim to relief that is plausible on its face.”) 
(cleaned up).                                                             

    Plaintiff’s allegations in her proposed TAC must be measured against precisely what 
the Minnesota punitive damages statute requires: (1) knowledge of—or an intentional 
disregard of—facts that make injury to the plaintiff’s rights highly probable; and (2) 
deliberately  proceeding  with  at  least  indifference—if  not  conscious  or  intentional 
disregard—to the risk of injury. 

. Mere conclusory statements that a 
defendant had knowledge, or willfully disregarded it, are not sufficient. See In re Bair 

Hugger, 

, at *7. The Court will take each Motion and the allegations 
regarding each respective Defendant in turn below.                        
              1.   Plaintiff’s Proposed Amendments                       
    Plaintiff’s Proposed Third Amended  Complaint contains three new paragraphs 
setting forth the factual basis for her punitive damages claims under a proposed Count XIII 

against XPO Logistics (Pl.’s Ex. B, ¶¶ 189–90) and Ecklund Logistics (id. ¶¶ 189, 191). 
                   a.   Plaintiff’s Allegations Against XPO Logistics    
    Plaintiff reincorporates all allegations made in the proposed TAC (id. ¶ 189) and 
newly alleges that Defendant XPO Logistics was aware of a high probability of harm to 
others because: (1) XPO knew that violating the FMCSRs’ hours of service regulations 

creates  dangers;  (2)  disregarded  those  known  dangers;  and  (3)  aided,  abetted,  and 
encouraged Ecklund Logistics and Mr. Michaels to violate the hours of service regulations 
in violation of 

 (which prohibits any person from aiding, abetting, and 
encouraging violations of the FMCSRs) (id. ¶ 190). If these allegations amount to clear 
and convincing evidence that XPO Logistics had (i) knowledge which it (ii) intentionally 
disregarded despite (iii) the high probability that the rights or safety of others could be 

injured, then 

 is satisfied, the proposed amendment is not futile, and 
Plaintiff’s Motion as to XPO Logistics should be granted. The Court takes all facts alleged 
in the proposed Third Amended Complaint as true for the purposes of the following 
analysis.                                                                 
                        i.   XPO Logistics’s Alleged Knowledge           
    Plaintiff alleges that XPO Logistics knew about (1) the parameters that it gave to 

Ecklund Logistics regarding the June freight load; (2) the agreements that it had in place 
with Ecklund; and (3) the details of Mr. Michaels’s departure time, trip duration, and 
scheduled delivery time.                                                  
    Specifically, Plaintiff alleges that XPO Logistics sent an email to the original 
shipper on June 11, 2019—two days before the collision—stating, “All set for tomorrow. 

Driver will be unloading in Neenah at 830AM, then headed to our shipper (30 miles or so). 
ETA 11AM. We will deliver at 8AM Thursday.” (Pl.’s Ex. B ¶ 40.) According to the TAC, 
the original shipper asked XPO Logistics to pick up the load of freight between 7:00 a.m. 
and 3:00 p.m. (Id. ¶ 41.) Plaintiff alleges that XPO Logistics reassigned transportation of 
the load to Ecklund Logistics, over whom it “had the right to control the means and manner 

of  how  Ecklund  Logistics  and  [Mr.  Michaels]  carried  out  the  shipment”  by  various 
contractual  agreements,  including  the  June  11,  2019  Carrier Rate  Confirmation/Load 
Confirmation Agreement, the November 8, 2012 Brokerage Agreement, and the April 29, 
2019 Motor Carrier Transportation Agreement. (Id. ¶¶ 42–48.)3             

    Plaintiff also alleges that the April 2019 Agreement “expressly prohibited Ecklund 
Logistics from transporting any shipment that would require Ecklund Logistics to violate 
the law, speed limits, safety rules, and federal hours-of-service rules,” and required it to 
notify XPO Logistics of “any expected [or] actual inability to meet the scheduled pick up 
or delivery appointment time.” (Id. ¶ 48(h), (j)(2).) Plaintiff alleges that XPO Logistics also 
required  Ecklund  Logistics  to  be  responsible  for  late  delivery  penalties  imposed  by 

customers.  (Id.  ¶ 48(q).)  Additionally,  the  TAC  alleges  that  XPO  Logistics  required 
Ecklund Logistics to effectively screen, monitor, and train its employees who handled XPO 
Logistics’s  cargo,  and  retained  the  right  to  verify  Ecklund’s  compliance  with  their 
agreement. (Id. ¶ 48(x), (ll).) Plaintiff alleges that in the June 11, 2019 Agreement, XPO 
Logistics instructed Ecklund Logistics on the pick-up and delivery schedule required for 

transportation of the June 12 load, and directed Ecklund to call XPO at least twice a day, 
as well as to call and report pick-up, transit status, delivery status, and any issues affecting 
transportation of the load. (Id. ¶ 45.)                                   
    Based on these agreements, Plaintiff alleges that XPO Logistics knew that Mr. 
Michaels picked up the load of freight at 2:34 p.m. on June 12, 2019; that his trip would 

take approximately 8 hours and 45 minutes; and that the freight delivery deadline was 


3 The Court notes that two paragraphs in the TAC are numbered 48, and here refers to the 
first paragraph labeled 48 in the TAC. That paragraph begins on page 16. All subsequent 
references to paragraph 48 shall refer to the first paragraph 48 unless otherwise noted. 
between 8:00 and 9:00 a.m. on June 13. (Id. ¶¶ 48–50, 57.) According to Plaintiff, XPO 
Logistics also knew about “the laws and the dangers of violating the laws surrounding the 

FMCSR’s hours of service regulations while driving[,]” which, inter alia, included a 
required a ten-hour rest period after 14 hours of driving. (Id. ¶ 190.) See 

(g). There are no facts in the TAC that show whether, or at what time or times on 
June 12 or 13, Ecklund Logistics gave XPO Logistics the updates required by their 
agreements.                                                               

                      ii.    Facts  that  XPO  Logistics  Allegedly      
                             Disregarded                                 

    Plaintiff alleges that XPO had a duty of care to the general public to know whether 
Ecklund Logistics, with whom it contracted to meet its motor carrier obligations, “was a 
safe,  professional,  and  competent  motor  carrier”  that  “hired  safe,  professional,  and 
competent motor carriers and drivers.” (Id. ¶¶ 101, 172, 175–76.) The TAC alleges that 
XPO Logistics failed to perform its duty and disregarded facts it should have known about 
Ecklund Logistics’s dangerous and unprofessional business practices, when it failed to 
review  and  consider  Ecklund’s  insurance  claim  history,  past  lawsuits,  and  general 
reputation. (Id. ¶¶ 102–20, 173–74.)                                      
    According to Plaintiff, these dangerous and unprofessional business practices that 
XPO Logistics should have known about included Ecklund Logistics’s history of poor 
hiring decisions; “collisions, unsafe driving and financial instability”; being underinsured; 
pressuring  its  drivers  to  exceed  their  federally  allowed  service  hours;  permitting  or 

encouraging drivers to maintain inaccurate log books; conducting questionable “hiring, 
training, supervision, retention, and company safety practices”; permitting drivers to film 
videos on their cell phones while driving; and being assessed State and Federal tax liens 

and judgments (which left Ecklund Logistics in such financial straits that it had an incentive 
to economize by operating unsafely). (Id.) Plaintiff further alleges that XPO Logistics also 
disregarded the dangers of violating the FMCSRs’ hours of service regulations. (Id. ¶ 190.)  
The TAC states that, “[h]ad XPO Logistics exercised due care, it knew or should have 
known that Ecklund Logistics and [Mr. Michaels] were incompetent and unsafe to act as 
the contractor to transport the freight which was involved in the fatal collision.” (Id. ¶ 177.) 

                      iii.   The  Probability  of  Injury to  the  Rights  or 
                             Safety of Others                            

    Plaintiff alleges that XPO Logistics had a duty of reasonable care to ensure that any 
entity it hired to transport its freight—a task “which involved a risk of physical harm unless 
it was skillfully and carefully done”—acted in accordance with XPO’s own duty of care 
owed to third persons, such as the general public. (Id. ¶ 174.) According to the TAC, the 
April 2019 Agreement between XPO Logistics and Ecklund Logistics required Ecklund to 
obey the law, the speed limit, safety rules, and federal hours of service regulations, which 
shows that XPO Logistics retained the right to control the means and manner of how 
Ecklund and Mr. Michaels conducted the transportation of the June 2019 freight load. (Id. 
¶ 48.) Plaintiff alleges that this also shows an awareness on XPO Logistics’s part that 
regulations  ranging  from  cell  phone  use  while  driving  to  obeying  hours  of  service 
requirements are “vitally important to the safety of the motoring public[,]” and that failing 

to follow them “poses a significant danger to the motoring public” and “can lead to 
commercial vehicle crashes.” (Id. ¶¶ 48(h), 70, 116.)  According to Plaintiff, XPO Logistics 
also knew or should have known that Ecklund Logistics’s history of causing harm to people 

and property presented a risk of similar potential future harms. (Id. ¶¶ 102–20, 173–74.) 
Plaintiff alleges that the June 13 accident was so horrific that it is itself evidence of the 
probability of injury, as well as of “carelessness, negligence, and unlawful hiring, retention, 
supervision, and entrustment[,]” actions that “were the direct cause of the collision which 
killed Andrew Russ.” (Id. ¶¶ 160, 178.)                                   

                      iv.    Plaintiff’s Supporting Arguments            

    In her Memorandum in Support of her Motion to Amend regarding XPO Logistics, 
Plaintiff argues that her proposed TAC sufficiently alleges that XPO Logistics had control 
over the details of Mr. Michaels’s June 13 freight delivery schedule pursuant to its Motor 
Carrier Transportation Agreement with Ecklund Logistics, knew that Ecklund and Mr. 
Michaels did not have enough time to complete that delivery on time, and applied pressure 
to Ecklund and Mr. Michaels to exceed industry standards and violate FMSCRs or face 
punishing financial consequences for late delivery. (Pl.’s Mem. Supp. XPO Mot. at 2–11, 
Dkt. No. 136.) Based on XPO Logistics’s power to control the delivery schedule, Plaintiff 
contends that her proposed TAC sufficiently alleges that XPO aided, abetted, encouraged, 
or required Ecklund Logistics and Mr. Michaels to violate regulations contained in 

  (which  prohibit  any  person  from  aiding,  abetting,  and  encouraging 
violations of the FMCSRs) because it cared more about timely freight delivery to its 
customers than the safety of the motoring public. (Id. at 21–23.)         
    Under Rule 15, Plaintiff argues that her Motion to Amend regarding XPO Logistics 
should be granted because justice requires it under the case facts; she has demonstrated no 

undue delay or bad faith; it would not result in unfair prejudice to XPO Logistics; and the 
amendments would not be futile. (Id. at 17.) She also argues that, even if the Court applies 

.191–20  as  the  legal  standard  for  measuring  her  proposed  TAC’s 
sufficiency, her Motion should still be granted because, under that Statute, she need only 
allege prima facie evidence of XPO Logistics’s deliberate disregard for the rights and 
safety of others, which she claims she has done. (Id. at 17–18.)          

    Plaintiff  also  cites  various  out-of-Circuit  cases  in  which  hours  of  service  and 
speeding violations have resulted in courts permitting punitive damages claims. (Id. at 22–
23 (citing, e.g., Gonzalez v. Seashore Fruit & Produce, No. 19-CV-1422, 

, at *2 (E.D. Pa. May 21, 2020) (finding the facts alleged sufficient to amend a 
complaint to add a punitive damages claim where a defendant had allegedly driven longer 

than allowed under the hours of service regulations, his employer knew of its driver’s 
violation, and the driver caused a collision where he failed to see a slower car in front of 
him and did not brake until the impact was less than two seconds away); Trotter v. B & W 
Cartage Co., No. 05-CV-0205 (MJR), 

, at *7 (S.D. Ill. Apr. 13, 2006) 
(concluding at summary judgment that a reasonable jury could find punitive damages 

warranted where an employer “operated with conscious indifference to its regulatory duty 
to maintain management systems effective in preventing hours of service violations by 
drivers”)).) However, Plaintiff conceded during oral argument that there are no binding 
precedents in this Circuit. Based on the facts and persuasive caselaw, Plaintiff claims that 
the Court should grant her Motion and permit her to plead a claim for punitive damages 
against XPO Logistics. (Id. at 23.)                                       

                      v.     XPO Logistics’s Opposing Arguments          

    XPO Logistics opposes Plaintiff’s Motion for leave to add a punitive damages claim 
against  it  and  asks  the  Court  to  deny  Plaintiff’s  Motion  in  its  entirety.  (Def.  XPO 
Logistics’s Mem. Opp’n at 1–4.) In its Memorandum in Opposition to this Motion, XPO 
Logistics argues that Plaintiff’s Motion fails to meet the Rule 15 standard because, under 
a Rule 12(b)(6) standard, the proposed amendment is futile where Plaintiff does not set 
forth a legally sufficient claim for punitive damages under Minnesota law against XPO 
Logistics. (Id. at 7–15.) XPO Logistics also contends that Count XI of the proposed TAC 
improperly brings a claim for violations of the FMCSRs because “‘there is no federal 
private  right  of  action  allowing  personal  injury  or  wrongful  death  plaintiffs  to  hold 
defendants liable for violations of the FMCSR.’” (Id. at 7 (citing Leon v. FedEx Ground 

Package Sys., Inc., No. 13-CV-1005 (JB/SCY), 

, at *11 (D.N.M. Feb. 16, 
2016).)                                                                   
                      vi.    Holding                                     

    As a threshold matter, the Court addresses XPO Logistics’s argument that there is 
no private right of action to allege violations of the FMCSRs, and that without such a right, 
Plaintiff has no foundation for her punitive damages claims. The Court assumes, without 
deciding, that allegations in the TAC of harm to a member of the public—which the 
FMCSRs were intended to protect—along with criminal charges alleging just such a harm 
(the death of a motorist), are enough at the pleading stage to allow Plaintiff to allege 
punitive damages. See Berczyk v. Emerson Tool Co., 

 (D. Minn. 
2003) (citing Olson v. Snap Prod., Inc., 

 (D. Minn. 1998) (“A 

plaintiff need not demonstrate an entitlement to punitive damages per se, but only an 
entitlement to allege such damages.”); Huggins v. FedEx Ground Package Sys., Inc., 

 (8th Cir. 2010) (declining to decide the merits of defendant’s arguments that 
only a member of the public is an intended beneficiary of the FMCSRs and may bring 
claims under them where the plaintiff was a co-driver (rather than a member of the public) 
and failed to plead a claim under the FMCSRs.).                           

    The Court also observes that at least four times, courts in this Circuit applying 
Missouri’s punitive damages law have expressly “allow[ed] evidence of failures to follow 
motor carrier regulations and industry standards to support awards of punitive damages 
against commercial motor carriers[,]” see, e.g., Harris v. Decker Truck Line, Inc., No. 4:12-
CV-1598 (DDN), 

, at *5 (E.D. Mo. Apr. 24, 2013); Coon v. Am. 

Compressed Steel, Inc., 

, 637–39 (Mo. Ct. App. 2006); Lopez v. Three 
Rivers Elec. Co-op., Inc., 

 (Mo. 2000); and Garrett v. Albright, No. 06-
CV-0785  (NKL),  

,  at  *6  (W.D.  Mo.  Mar.  21,  2008).  Missouri’s 
substantive law on punitive damages is similar to Minnesota’s: “Under Missouri law, 
punitive damages are appropriate where a party ‘either knew or had reason to know that 

there was a high degree of probability that the defendant’s conduct would result in injury.’” 
Garrett, 

, at *6 (citing Hoover’s Dairy, Inc. v. Mid-America Dairymen, 
Inc., 

 (Mo. 1985)). “With such a showing, a plaintiff can recover for 
aggravating  circumstances  based  upon  the  defendant’s  complete  indifference  to  or 
conscious disregard for the safety of  others.” 

 (citing Lopez, 

).) 
Additionally, XPO Logistics’s out-of-Circuit citation to the District of New Mexico’s 

holding in Leon, 

, at *11, presents only a persuasive precedent, albeit a 
compelling one.                                                           
    Viewing Plaintiff’s allegations together as a whole and taking them as true for 
purposes of this Motion, the Court concludes that Plaintiff fails to plausibly allege on the 
face of the proposed TAC that XPO Logistics acted with deliberate disregard for the rights 
and safety of others. The facts alleged do not provide clear and convincing evidence that 

XPO Logistics knew or should have known that Mr. Michaels did not have enough time to 
deliver the load of freight, or that this would incentivize him to violate regulations about 
hours of service. Plaintiff has not alleged that Ecklund Logistics informed XPO Logistics 
that its driver could not deliver the load on time, much less that XPO reacted with 
indifference to that information. Plaintiff’s assertion that (1) XPO knew that violating the 

FMCSRs’ hours  of service  regulations  creates  dangers;  (2)  disregarded  those  known 
dangers; and (3) aided, abetted, and encouraged Ecklund Logistics and Mr. Michaels to 
violate the hours of service regulations in violation of 

 (id. ¶ 190) is 
conclusory because it is not sufficiently supported by the facts alleged as a whole in the 
proposed TAC.                                                             

    In sum, Plaintiff’s allegations do not amount to clear and convincing evidence, even 
if unrebutted, that XPO Logistics acted with willful indifference to a highly probable risk 
of harm to the rights and safety of others. Because Plaintiff’s allegations do not meet the 
substantive state law requirements under 

 subd. 1, the Court concludes, 
pursuant to Federal Rule of Civil Procedure 15(a)(2), that Plaintiff’s proposed amendments 
are futile because the allegations could not withstand a motion to dismiss. See Fed. R. Civ. 

P. 15(a)(2); see also In re Bair Hugger, 

, at *8 (citing Springdale Educ. 
Ass’n v. Springdale Sch. Dist., 

 (8th Cir. 1998)). Therefore, the Court 
denies Plaintiff’s Motion seeking leave to amend the Complaint to add punitive damages 
as to XPO Logistics.                                                      
                   b.   Plaintiff’s Allegations Against Ecklund Logistics 
    Plaintiff reincorporates all allegations made in the proposed TAC (Pl.’s Ex. B ¶ 189) 

and newly alleges that Defendant Ecklund Logistics (1) hired  Mr. Michaels as a driver 
despite knowing his history of unsafe and unprofessional commercial driving; (2) knew 
that violating the FMCSRs’ hours of service regulations creates dangers; (3) disregarded 
those known dangers; and (4) aided, abetted, and encouraged Mr. Michaels to violate the 
hours of service regulations in violation of 

 (which prohibit any person 

from aiding, abetting, and encouraging violations of the FMCSRs) (id. ¶ 191). If these 
allegations  amount  to  clear  and  convincing  evidence  that  Ecklund  Logistics  had  (i) 
knowledge which it (ii) intentionally disregarded despite (iii) the high probability that the 
rights or safety of others could be injured, then 

 is satisfied, the 
proposed amendment is not futile, and Plaintiff’s Motion as to Ecklund Logistics should 

be granted. The Court takes all facts as alleged in the proposed Third Amended Complaint 
as true for the purposes of the following analysis.                       
                       i.    Ecklund Logistics’s Alleged Knowledge       

    Plaintiff  alleges  that  Ecklund  Logistics  knew  about  (1)  its  own  policies  and 
practices;  (2)  Mr.  Michaels’s  past  employment  history  and  criminal  record;  (3)  the 
parameters of its role as the motor carrier that XPO Logistics hired for the June 2019 load; 
and (4) that on June 12, Mr. Michaels departed late with XPO’s load.      
    Specifically, the TAC alleges that Ecklund Logistics knew its own policies and 
practices,  including  its  “company  safety  history”  and  its  “policies  regarding  hiring, 
supervision,  and  retention  of  employees;  entrustment  of  vehicles  and  equipment  to 

employees; driver qualification, safety, and professionalism; competence; compliance with 
state and federal regulations; and vehicle and equipment ownership, leasing, insuring, 
inspection, and maintenance.” (Id. ¶ 100.) Plaintiff alleges that Ecklund Logistics also 
knew of its “past history of serious and fatal collisions, and other unsafe, illegal, and 
unprofessional practices,” including having previously “caus[ed] damages in excess of its 

insurance coverage” and having a “lengthy and public history of litigation, judgments, and 
State and Federal tax liens and judgments.” (Id. ¶¶ 103–04, 109–13, 118.) 
    Moreover, Plaintiff alleges that Ecklund Logistics knew about Mr. Michaels’s past 
employment  history  and  criminal  record,  all  of  which  indicated  that  he  lacked  “the 
judgment,  professionalism,  and  competence  necessary  to  safely  operate  commercial 

vehicles.”  (Id.  ¶¶ 78,  191.)  According  to  Plaintiff,  Ecklund  Logistics  knew  that  Mr. 
Michaels’s history included that he had: been terminated from his prior job one week 
before the June 13 collision because of a safety clearance suspension; failed all areas of an 
annual “check-ride” six months before the June 13 collision because he made “several 
unsafe decisions” and a reviewer had found Mr. Michaels to be “a big danger to himself 
and others on the road”; and been terminated three years before the June 13 collision 

because he allowed his semi-trailer to roll away. (Id. ¶ 81.) Plaintiff alleges that Ecklund 
Logistics also had access to Mr. Michaels’s criminal history and knew or should have 
known that he had convictions for a felony and several misdemeanors, and citations for 
failing to wear a seat belt and carry motor vehicle insurance when operating a vehicle. (Id. 
¶ 84.)                                                                    
    When XPO Logistics hired Ecklund Logistics to be the motor carrier hauling the 

June 2019 load, Plaintiff alleges that Ecklund knowingly agreed to certain parameters for 
the freight load. (Pl.’s Ex. B ¶¶ 42–43.) According to the TAC, these included that Ecklund 
Logistics would: pick up the load on June 12, 2019, between 7:00 a.m. and 3:00 p.m.; 
deliver the load on June 13, 2019, between 8:00 a.m. and 9:00 a.m.; call XPO Logistics to 
report the pickup, transit status, and delivery status; call XPO at least twice a day minimum 

while carrying its freight; and immediately report “discrepancies or incident[s] affecting 
transportation” of the load. (Id. ¶ 45.) Plaintiff alleges that Ecklund Logistics also agreed 
to transport shipments without delay and to immediately notify XPO Logistics of likely 
delays (id. ¶ 47(b)); to not violate the law, speed limits, safety rules, or hours of service 
rules (id. ¶ 48(h)); to notify XPO of changes in pick-up or delivery times (id. ¶ 48(j)); to 

pay XPO any assessed charges for late delivery without prior notice and to bear the expense 
for late delivery (id. ¶ 48(l), (o), (q)); and to track driver movements and effectively screen, 
monitor, and train drivers handling its cargo (id. ¶ 48(x)). Additionally, Plaintiff alleges 
that on June 12, 2019, Ecklund Logistics knew that Mr. Michaels picked up the freight load 
later than anticipated because of brake and clutch repairs that had to be completed before 
Mr. Michaels could depart. (Id. ¶¶ 48,4 59.)                              

                      ii.    Facts  that  Ecklund  Logistics  Allegedly  
                             Disregarded                                 

    According to the TAC, although Ecklund Logistics knew or should have known that 
Mr. Michaels’s employment history and criminal record demonstrated his unfitness to 
safely operate commercial vehicles, Ecklund failed to investigate—or simply ignored—
this information, hiring him despite these facts. (Id. ¶¶ 78–86, 98.) Plaintiff alleges that 
Ecklund Logistics, as Mr. Michaels’s employer, also imposed an unrealistic delivery 
timeline upon Mr. Michaels for the June 2019 load of freight, even though this unrealistic 
timeline would pressure Mr. Michaels to drive unsafely and to violate the FMCSRs to 
follow  Ecklund’s  delivery  instructions.  (Id.  ¶¶ 67,  77.)  According  to  Plaintiff,  in 
dispatching Mr. Michaels with too little time, Ecklund Logistics disregarded the known 
dangers that violating the FMCSRs’ hours of service regulations created, including risks 
of injury to the motoring public. (Id. ¶ 191.)                            
                      iii.   The  Probability  of  Injury to  the  Rights  or 
                             Safety of Others                            

    Plaintiff alleges that the high risk of Ecklund Logistics’s conduct is self-evident: 
fatal collisions with the motoring public. According to Plaintiff, this risk existed whether 
any member of the motoring public was actually harmed, but was, in fact, realized when 
Mr. Russ lost his life in the fatal collision. Plaintiff alleges that his death resulted from 

4 The Court here refers to the second paragraph labeled paragraph 48 in the proposed TAC 
which is located on page 28.                                              
Ecklund Logistics’s disregard of Mr. Michaels’s unfitness to safely operate commercial 
vehicles, combined with its disregard of the fact that Mr. Michaels did not have enough 

time to safely deliver the load of freight by between 8:00 and 9:00 a.m. on June 13, 2019. 
(Id. ¶¶ 78, 83, 87, 97, 122–23, 128–29, 134–35, 141–42, 146–47, 150–51, 153, 156, 159–
61.) The TAC alleges that Ecklund Logistics’s duty to adequately evaluate applicants, 
supervise drivers, and monitor employee performance—which it failed to do with Mr. 
Michaels—exists to reduce the probability of injury to “the public and/or its property” by 
placing responsibility on employers to refuse to hire or retain incompetent or negligent 

applicants or employees. (Id. ¶ 159.) Plaintiff further alleges that violating the FMCSRs’ 
hours of service regulations risks the very injuries to the motoring public that occurred here 
in Mr. Russ’s death. (Id. ¶ 191.)                                         
                      iv.    Plaintiff’s Supporting Arguments            

    In  her  Memorandum  in  Support  of  her  Motion  to  Amend  regarding  Ecklund 
Logistics, Plaintiff argues that her Motion against Ecklund Logistics should be granted 
because justice requires it under the case facts; she has demonstrated no undue delay or 
bad faith; it would not result in unfair prejudice to Ecklund Logistics; and the amendments 
would not be futile. (Pl.’s Mem. Supp. Ecklund Mot. at 18, Dkt. No. 140.) Plaintiff argues 
that  her  proposed  TAC  sufficiently  alleges  under  Rule  15  that  Ecklund  Logistics 

disregarded  warnings  about  unsafe  and  unprofessional  driving  in  Mr.  Michaels’s 
employment application when it hired him—warnings that should have led Ecklund to 
decline  to  hire  Mr.  Michaels.  (Id.  at  3–8.)  She  also  argues  that  the  proposed  TAC 
sufficiently alleges Ecklund Logistics dispatched Mr. Michaels on June 12, 2019, with an 
unrealistic delivery timeline—a timeline that would necessitate violations of industry 
standards and FMCSRs, and a breach of his duty of care to the motoring public—to achieve 

on-time delivery, all while threatening him with punishments for late freight deliveries. (Id. 
at 8–12.)                                                                 
    Plaintiff claims that, even if the Court applies 

 as the legal 
standard for measuring her proposed TAC’s sufficiency, her Motion should still be granted 
because,  under  that  Statute,  she  need  only  allege  prima  facie  evidence  of  Ecklund 
Logistics’s deliberate disregard for the rights and safety of others, which she claims she 

has done. (Id. 18–19.) In support of her position, Plaintiff again cites various out-of-Circuit 
cases in which hours of service and speeding violations have resulted in courts permitting 
punitive damages claims. As before, Plaintiff concedes there are no binding precedents in 
this Circuit. (Id. at 23–24.)                                             
                      v.     Ecklund Logistics’s Opposing Arguments      

    Ecklund Logistics opposes Plaintiff’s Motion and asks the Court to deny it in its 
entirety. (Def. Ecklund Logistics’s Mem. Opp’n at 1–2.) Ecklund Logistics argues that 
Plaintiff’s proposed TAC fails to allege sufficient facts that Ecklund had the requisite 
knowledge of, or that it intentionally disregarded facts about, the alleged high probability 
that Mr. Michaels might injure others. (Id. at 20.) It claims that it lawfully hired and 

dispatched Mr. Michaels, and each of these arguments will be discussed below. (Id. at 20–
34.)                                                                      
    As to hiring, Ecklund Logistics claims that Plaintiff admits that Ecklund’s duty to 
hire qualified drivers is governed by Title 

 (setting forth qualifications 
for qualified motor carriers). (Id. at 20 (citing Pl.’s Mem. Supp. Ecklund Mot. at 22).) It 
claims Plaintiff offers no evidence that Ecklund Logistics violated the standard of care 

recognized by the FMCSRs. (Id. at 23.) Specifically, Ecklund Logistics claims that Plaintiff 
has not adequately alleged that Ecklund knew of any facts that showed Mr. Michaels’s 
unfitness to drive a commercial motor vehicle for Ecklund under the 

 
qualified  motor  carrier  standard,  or  that  Ecklund  failed  to  properly  investigate  Mr. 
Michaels’s background under the standard set forth in 

(a) (which gave 
Ecklund 30 days from Mr. Michaels’s hire date to investigate his fitness as an employee). 

(Id. at 20–25.) As to Plaintiff’s claim that Ecklund Logistics should have searched Mr. 
Michael’s  social  media  sites  and  been  aware  of  his  alleged  exhibitions  of 
unprofessionalism, Ecklund contends that, under Wisconsin’s Internet Privacy Protection 
Statute, employers may not ask for access to a prospective employee’s social media 
account, nor is there a statute that creates a duty for employers to view prospective 

employees’ social media accounts that are in the public domain. (Id. at 25 (quoting 

).)  Similarly,  as  to  Mr.  Michaels’s  criminal  record,  Wisconsin’s  Fair 
Employment Act prohibits employers from discriminating against prospective employees 
based on their conviction records. (Id. at 29 (quoting 

).) 
    As to dispatching Mr. Michaels to carry a freight load on June 12, 2019, Ecklund 

Logistics  argues  that  Plaintiff’s  conclusory  statements  that  it  gave Mr.  Michaels  the 
impossible choice of either violating regulations, or traveling too quickly for conditions, 
fails the Iqbal/Twombly pleading standard. (Id.) Ecklund Logistics claims that Plaintiff has 
not set forth clear, convincing, admissible evidence of Ecklund’s knowledge of highly 
probable harm—or the intentional disregard of it—in dispatching Mr. Michaels on June 
12, but instead offers pleadings that are mere supposition. (Id. at 30.)  Finally, Ecklund 

Logistics claims that the criminal charges against Mr. Michaels regarding the June 13, 2019 
collision  are  for  gross  negligence,  a  lower  standard  than  the  heightened  “deliberate 
disregard” under 

, sub. 1(b) that is akin to “willful indifference,” so 
even if Mr. Michaels is convicted of the charges—which he has not yet been—allegations 
relating to the criminal case supply no grounds for punitive damages against Ecklund. (Id. 
at 34–35.)                                                                

                      vi.    Holding                                     

    The Court finds that, taking Plaintiff’s allegations as a whole as true and asking 
whether, if unrebutted, they would support a judgment in Plaintiff’s favor, Plaintiff has 
alleged sufficient facts that the elements of a punitive damages claim are present. To find 
Plaintiff’s pleadings sufficient, Plaintiff must allege enough to reasonably allow the Court 
to conclude that clear and convincing evidence plausibly supports that Ecklund Logistics 
acted with willful indifference.                                          
    Here, there are allegations that, if unrebutted, constitute prima facie evidence of 
more than mere negligence or gross negligence. Ecklund Logistics chose to hire Mr. 
Michaels and to dispatch him with a load of freight for an allegedly unrealistic delivery 

deadline during his first week on the job for Ecklund. The Court can reasonably draw an 
inference from the proposed TAC’s allegations that Ecklund Logistics knew or should have 
known that employing Mr. Michaels to operate a semi-trailer meant placing someone with 
a record of unsafe driving practices on the road with the motoring public, and knew that, 
given Mr. Michaels’s late departure on June 12, 2019, Mr. Michaels would not be able to 
deliver the load on time. Yet, according to Plaintiff’s allegations, Ecklund Logistics did 

not provide Mr. Michaels with any alternative schedule—a silence tantamount to requiring 
Mr. Michaels to try to deliver the load on time. Furthermore, Plaintiff alleges nothing that 
indicates that Mr. Michaels had the independent authority to alter his delivery schedule. 
    Based on these allegations, there is enough to conclude that clear, convincing, and 
admissible evidence plausibly supports the proposition that Ecklund Logistics acted with 
willful indifference. As alleged, Ecklund Logistics knew or should have known that Mr. 

Michaels did not have enough time to both deliver the load and follow reasonable road 
safety practices and hours of service regulations. It knew or should have known that this 
would incentivize him to cut corners that the law does not allow to be cut—such as 
unreasonably driving too quickly and aggressively for traffic conditions and violating the 
hours of service regulations—yet did nothing to either alter the delivery schedule or notify 

Mr. Michaels that he would not face any punitive consequences for a late delivery (despite 
Ecklund Logistics’s alleged policies to the contrary). These facts connect knowledge and 
deliberate disregard despite the risks to the motoring public as required by 

.20—risks borne out by the fatal collision on June 13. Such actions represent more 
than just allowing events to unfold “without even a scant care”; these allegations rise to the 

level of “reckless disregard for the probable consequences” equating to “a willful and 
intentional wrong.” See Dolphin Kickboxing Co., 335 F.R.D. at 401 n.4.    
     Therefore, Plaintiff’s allegations that (1) Ecklund Logistics knew that violating the 
FMCSRs’ hours  of  service  regulations  creates  dangers;  (2)  disregarded  those  known 
dangers; and (3) aided, abetted, and encouraged Mr. Michaels to violate the hours of service 
regulations in violation of 

 (id. ¶ 191) are sufficiently supported by the 

facts alleged in her proposed TAC. Plaintiff’s allegations, if found credible by a jury, would 
allow a factfinder to determine that Ecklund Logistics knew (or should have known) of a 
high risk that Mr. Michaels would drive unsafely on June 12 and 13, but that it intentionally 
disregarded the risk because it cared more about getting XPO Logistics’s load delivered 
than it did about safety. In re Bair Hugger, 

, at *8 (citing Iqbal, 

).                                                                  

    In sum, because Plaintiff has alleged facts that, if unrebutted, amount to clear and 
convincing evidence that Ecklund Logistics acted with willful indifference to a known or 
ascertainable risk of probable harm, Plaintiff’s TAC meets the standard of 

. The Court concludes, pursuant to Federal Rule of Civil Procedure 15(a)(2), that 
Plaintiff’s Motion as to Defendant Ecklund Logistics is not, therefore, futile. Accordingly, 

the Court grants Plaintiff’s Motion seeking leave to amend the Complaint to add punitive 
damages  as  to  Ecklund  Logistics.  Plaintiff  shall  file  her  proposed  Third  Amended 
Complaint and, for the reasons that follow, shall do so within 14 days of the date of this 
Order.                                                                    
II.  SUBJECT-MATTER JURISDICTION                                          

    Federal courts have an obligation to inquire into subject-matter jurisdiction, even if 
no party raises the issue. See Arbaugh v. Y&H Corp., 

 (2006) (citing 
Ruhrgas AG v. Marathon Oil Co., 

 (1999)); Oglala Sioux Tribe v. 
Fleming, 

 (8th Cir. 2018) (citing Arbaugh); Reece v. Bank of New York 
Mellon, 

 (8th Cir. 2014) (citation omitted). In line with this legal 
principle,  because  the  Court  has  a  concern  with  the  way  in  which  subject-matter 

jurisdiction is pleaded, it sua sponte considers the adequacy of the operative pleadings as 
to federal subject-matter jurisdiction in this action.                    
    A.   Background                                                      
    Plaintiff alleges that she “is Wife and Trustee for the Heirs and Next of Kin of 
Andrew Russ, deceased, and is a citizen of Minnesota.” (SAC ¶ 2.) For each respective 
Defendant named in this action, Plaintiff alleges that: XPO Logistics, LLC has a “principal 

place of business . . . [in] Connecticut” (id. ¶ 5); Ecklund Logistics, Inc. “is a Wisconsin 
corporation  with  its  principal  place  of  business  .  .  .  [in]  Wisconsin”  (id.  ¶ 8);  KLE 
Equipment Leasing, LLC “is a Wisconsin corporation sharing a principal place of business 
. . . [in] Wisconsin” (id. ¶ 10); and Shane Thomas Michaels “is a resident of the State of 
Wisconsin” (id. ¶ 12).                                                    

    B.   Legal Standard for Federal Subject-Matter Jurisdiction          
    Subject-matter jurisdiction is a threshold requirement for federal-court litigation; 
where it is lacking, a federal court cannot proceed with an action. See, e.g., Sinochem Int’l 
Co. v. Malaysia Int’l Shipping Corp., 

, 430–31 (2007) (citing Steel Co. v. 
Citizens for Better Env’t, 

 (1998)). Furthermore, it is a plaintiff’s burden to 

show that subject-matter jurisdiction exists. See, e.g., ABF Freight Sys., Inc. v. Int’l Bhd. 
of Teamsters, 

 (8th Cir. 2011) (citing Green Acres Enters., Inc. v. United 
States, 

, 856 (8th Cir. 2005)). Under Rule 8 of the Federal Rules of Civil 
Procedure, a “pleading that states a claim for relief”—such as the Complaint—“must 
contain . . . a short and plain statement of the grounds for the court’s jurisdiction.” Fed. R. 
Civ. P. 8(a)(1). Plaintiff contends that this Court has subject-matter jurisdiction over this 

action based on Title 

 (diversity of citizenship jurisdiction). (SAC ¶ 16.) 
However, as currently pleaded, Plaintiff’s SAC fails to allege this Court’s subject-matter 
jurisdiction with the specificity required.                               
    In relevant part, Title 

 states that “[t]he district courts shall have 
original jurisdiction of all civil actions where the matter in controversy exceeds the sum or 
value of $75,000 . . . and is between . . . citizens of different  States[.]” 

(a)(1). Diversity jurisdiction demands “complete diversity”: each defendant must be 
a citizen of a different state from each plaintiff. See, e.g., Owen Equip. & Erection Co. v. 
Kroger, 

 (1978); Junk v. Terminix Int’l Co., 

 (8th Cir. 
2010) (quoting In re Prempro Prods. Liab. Litig., 

 (8th Cir. 2010)). 
    C.   Discussion of the Party Citizenships Alleged in the SAC         

    For the pleadings to establish diversity, a plaintiff “must set forth with specificity 
the citizenship of the parties.” Barclay Square Properties v. Midwest Fed. Sav. & Loan 
Ass’n of Minneapolis, 

, 969 (8th Cir. 1990) (citation omitted). While the 
Plaintiff’s SAC sufficiently alleges the citizenship of Ecklund Logistics as a corporation, 
see In re Arrowhead Cap. Mgmt. LLC Class Litig., 

 (D. Minn. 

2010), Plaintiff’s SAC requires amendment to adequately plead the citizenship of the LLC 
and individual Defendants as follows.                                     
         1.   Citizenship of Limited Liability Companies                 
    Defendants XPO Logistics and KLE Equipment are limited liability companies. 

“[F]or purposes of diversity jurisdiction, a limited-liability company (‘LLC’) takes the 
citizenship  of  all  of  its  members  and  ‘sub-members’  and  ‘sub-sub-members.’”  Key 
Enterprises, LLC v. Morgan, No. 12-CV-2628 (PJS/JSM), 

, at *1 (D. 
Minn. Jan. 29, 2013). Merely alleging where an LLC is located or principally conducts 
business is insufficient. See Grover-Tsimi v. Am. Laser Centers, LLC, No. 09-CV-2729 
(DSD/JJK), 

, *1 (D. Minn. Feb. 9, 2010). “When one of the parties to the 

action is a limited partnership, the citizenship of each general and limited partner must be 
considered  in  determining  whether  complete  diversity  of  citizenship  exists.”  Barclay 
Square Properties, 893 F.2d at 969 (citing Stouffer Corp. v. Breckenridge, 

 
(8th Cir. 1988)). “‘[B]ecause a member of a limited liability company may itself have 
multiple members—and thus may itself have multiple citizenships—the federal court needs 

to know the citizenship of each “sub-member” as well[,]’” if any. Fifth Third Mortg. Co. 
v. Lamey, No. 12-CV-2923 (JNE/TNL), 

, at *1 (D. Minn. Nov. 27, 2012) 
(citing Delay v. Rosenthal Collins Grp., LLC, 

 (6th Cir. 2009)). 
    Given the allegations in the SAC, the Court has serious concerns about its federal 
subject-matter jurisdiction as to the LLC Defendants. Plaintiff’s  allegation that XPO 

Logistics has a “principal place of business . . . [in] Connecticut” fails to specify the 
citizenship of each of XPO Logistics’s members. (SAC ¶ 5.) It is likewise insufficient for 
Plaintiff to allege that KLE Equipment “is a Wisconsin corporation sharing a principal 
place of business . . . [in] Wisconsin.” (Id. ¶ 10.) The Court may not take Plaintiff at her 
word that “complete diversity exists between the parties.” (Id. ¶ 16.) To satisfy her burden 
of alleging diversity jurisdiction, Plaintiff must allege with specificity the citizenship of 

each LLC Defendant’s members (and if applicable, each member’s sub-members). 
         2.   Citizenship of Individuals                                 
    Defendant Michaels is an individual that Plaintiff alleges “is a resident of the State 
of Wisconsin.” (Id. ¶ 12 (emphasis added).) Diversity jurisdiction requires that Plaintiff is 
not a citizen of the same state as any Defendant in this action. See Owen Equip., 

. In this Circuit, alleging that a defendant is a “resident” of a state is not the same as 

alleging a defendant is a “citizen” of that state. See Reece, 

 (citations 
omitted) (“Because of this ambiguity in the word ‘resident’—as compared to ‘citizen’ . . . 
—we cannot satisfy ourselves that diversity jurisdiction is proper based solely on an 
allegation a party is (or was) a ‘resident’ of a particular state.”) Thus, Plaintiff’s allegation 
that Mr. Michaels resides in Wisconsin is not pleaded with enough specificity to assure this 

Court that complete diversity exists. To satisfy her burden,  Plaintiff must  allege the 
citizenship of Mr. Michaels.                                              
         3.   Holding                                                    
    When a pleading fails to adequately allege diversity jurisdiction, courts have the 
discretion  to  allow  an  amendment.  See 

  (“Defective  allegations  of 

jurisdiction may be amended, upon terms, in the trial or appellate courts.”); see also 
Dubach v. Weitzel, 

 (8th Cir. 1998). The Court will follow that path here. 
Therefore, when Plaintiff files, within fourteen days, her Third Amended Complaint, that 
Third Amended Complaint shall allege with specificity the citizenship of each party—
including the citizenship of the LLC Defendants and of Mr. Michaels—at the time that 
Plaintiff commenced this action. See Grupo Dataflux v. Atlas Glob. Grp., L.P., 

,  574–75  (2004)  (citing  Conolly  v.  Taylor,  

  (1829) (stating  the 
longstanding principle that jurisdiction depends upon the citizenship of each party at the 
time that a plaintiff commences their suit)).                             

    Accordingly,  based  on  all  the  files,  records,  and  proceedings  herein,  IT  IS 
HEREBY ORDERED that:                                                      

    1.   Plaintiff Trina Russ’s Motion for Leave to File a Third Amended Complaint 
         to Add a Claim for Punitive Damages Against XPO Logistics, LLC (Dkt. 
         No. 134) is DENIED;                                             
    2.   Plaintiff’s Motion for Leave to File a Third Amended Complaint to Add a 
         Claim for Punitive Damages Against Ecklund Logistics, Inc. (Dkt. No. 138) 

         is GRANTED; and                                                 
    3.   Plaintiff shall, within fourteen days of the date of this Order, file a Third 
         Amended  Complaint  that  adds  her  claim  for  punitive  damages  against 
         Ecklund Logistics, Inc., and that alleges with specificity the citizenship of 
         each party at the time that Plaintiff commenced this action.    



Dated: March 23, 2022         s/  John F. Docherty                        
                             JOHN F. DOCHERTY                            
                             United States Magistrate Judge