United States District Court for the Western District of Texas, Pecos Division
January 4, 2022, Decided; January 4, 2022, Filed
P:20-CV-00010-DC
Reporter
2022 U.S. Dist. LEXIS 35821 *; 2022 WL 576581
MIGUEL LARA and MARIA LARA, individually and as Administrators of the Estate of Luis Antonio Lara, Plaintiffs, v. POWER OF GRACE TRUCKING, LLC, and JOSE GUADALUPE PINA JACOBI, Defendants.
Core Terms
gross negligence, summary judgment, recommendations, mail, genuine, nonmoving, driver, material fact
Counsel: [*1] For Miguel Lara, Individually and as Independent Administrato of the Estate of Luis Antonio Lara, Maria Estela Lara, Individually and as Independent Administrator of the Estate of Luis Antonio Lara, Plaintiffs: Rickey J. Brantley, Rickey J. Brantley, Attorney at Law, P.C., Fort Worth, TX.
For Power of Grace Trucking, LLC, Defendant: Eric Sherwood Rich, LEAD ATTORNEY, Shafer, Davis, O’Leary & Stoker, Odessa, TX.
Jose Guadalupe Pina Jacobi, Defendant, Pro se.
For Stephanie Coronado, as next friend to A.L., a minor, Intervenor Plaintiff: Jack Stick, LEAD ATTORNEY, Veris Law PLLC, Austin, TX; Michael S. Alfred, LEAD ATTORNEY, Hallett & Perrin, Dallas, TX.
Judges: DAVID COUNTS, UNITED STATES DISTRICT JUDGE.
Opinion by: DAVID COUNTS
Opinion
ORDER ADOPTING REPORT AND RECOMMENDATION
BEFORE THE COURT is United States Magistrate Judge David B. Fannin’s Report and Recommendation (R&R) filed in the above-captioned cause on October 4, 2021, in connection with the Motion for Partial Summary Judgment filed by Defendants Power of Grace Trucking, LLC (Power of Grace) and Jose Guadalupe Pina Jacobi (Jacobi) (together, Defendants) on June 3, 2021. (Docs. 39, 83). Plaintiffs Miguel Lara and Maria Lara (Plaintiffs) filed Objections to the [*2] R&R on October 14, 2021. (Doc. 92). Power of Grace, with leave of Court, filed a response to the Objections on October 26, 2021. (Doc. 95-1). After due consideration, the Court ADOPTS the R&R to the extent that it is consistent with this Order (Doc. 83) and OVERRULES Plaintiffs’ Objections (Doc. 92). Accordingly, the Court GRANTS IN PART and DENIES IN PART Defendants’ Motion for Partial Summary Judgment. (Doc. 39).
I. Background
This case arises from an automobile collision. (Doc. 1 at 4). On or about December 8, 2019, Luis Antonio Lara (Mr. Lara) was traveling northbound on SH 18. Id. Jacobi was also traveling on SH 18 northbound. Id. According to the Complaint, Jacobi made an illegal U-turn across SH 18’s northbound lane. Id. Jacobi struck Mr. Lara’s vehicle during the attempted U-turn, resulting in Mr. Lara’s death. Id. Power of Grace owned the commercial tractor-tanker trailer driven by Jacobi. Id. The parties agree that Jacobi was acting within the course and scope of his employment with Power of Grace at the time of the collision. Id.
The Plaintiffs are Mr. Lara’s parents. Id. at 1. On February 20, 2020, they filed the instant lawsuit against Defendants for negligence, gross negligence, [*3] and wrongful death. See id. Moreover, Plaintiffs raise claims for respondeat superior and negligent hiring, training, supervision, retention, and monitoring against Power of Grace. Id. On June 8, 2020, Stephanie Coronado (Intervenor) filed a Complaint in Intervention as Next Friend to A.L., Mr. Lara’s son. (Doc. 14). Intervenor raises the same claims as Plaintiffs. Id.
On June 3, 2021, Defendants, represented by the same attorneys, jointly filed a Motion for Partial Summary Judgment. (Doc. 39). Defendants move for summary judgment on the gross negligence claim. Id.
The Magistrate Judge issued an R&R on October 4, 2021, recommending granting in part and denying in part the Motion for Partial Summary Judgment. (Doc. 83). Specifically, the Magistrate Judge finds Plaintiffs have provided sufficient evidence for a reasonable jury to find Jacobi liable for gross negligence. Id. As to Power of Grace, the Magistrate Judge finds there is no genuine issue of material fact for which a reasonable juror could find that Power of Grace is liable for gross negligence. See generally id.
Prior to the Magistrate Judge issuing the R&R, defense counsel moved to withdraw as the attorney of record for Jacobi. [*4] (Doc. 82). The Magistrate Judge granted the motion to withdraw and ordered the Court of Clerk to mail by certified mail, return receipt requested a copy of the order granting the motion to withdraw and the R&R to Jacobi’s last known address,1 which defense counsel provided. (Docs. 84, 85). The order and R&R were returned to the Clerk of Court labeled “Return to Sender” and “Unable to Forward.” (Doc. 102). The Magistrate Judge also issued an advisory to Jacobi, explaining his status as a pro se litigant. (Doc. 86). The advisory was mailed via certified mail, return receipt requested on October 4, 2021, to Jacobi’s last known address. (Doc. 87). The advisory has not been delivered to Jacobi.
On October 14, 2021, Plaintiffs filed timely Objections to the R&R. (Doc. 92). They argue that the Magistrate Judge erred in finding that there is not sufficient evidence in the summary judgment record for a reasonable jury to find Power of Grace grossly negligent and that a ruling on the gross negligence claim is premature. See id.
Power of Grace and Jacobi did not file objections. The Court reset the final pretrial conference and trial settings several times to provide Jacobi, proceeding pro se, additional [*5] time to file objections, if any, to the R&R. (Docs. 93; 97; 98; Text Only Entry, Dec. 30, 2021). Additionally, the Court directed the Clerk of Court to mail the R&R, order granting the motion to withdraw as an attorney, and advisory to Jacobi via FedEx International Priority. To this date, the documents have not been delivered to Jacobi by FedEx.
II. Legal Standards
A. Objections to Report and Recommendation
Any party who desires to object to a Magistrate Judge’s findings and recommendations must serve and file written objections within fourteen (14) days after being served with a copy of the findings and recommendations. 28 U.S.C. § 636(b)(1). A party’s objections to an R&R entitle him to a de novo review of those claims by this Court. 28 U.S.C. § 636(b)(1). However, objections must specifically identify those findings or recommendations to which objections are being made. The Court need not consider frivolous, conclusive, or general objections. See Battle v. United States Parole Comm’n, 834 F.2d 419 (5th Cir. 1987).
Failure to file written objections to the R&R within fourteen (14) days after being served with a copy shall bar that party from de novo review by the district court of the proposed findings and recommendations. Id. Moreover, except upon grounds of plain error, it shall also bar [*6] the party from appellate review of proposed factual findings and legal conclusions accepted by the district court to which no objections were filed. Id.; Thomas v. Arn, 474 U.S. 140, 150-53, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); United States v. Wilson, 864 F.2d 1219 (5th Cir. 1989) (per curiam).
B. Motion for Summary Judgment
Summary judgment is proper if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The Court must examine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52. In making this determination, the Court must consider the record as a whole by reviewing all pleadings, depositions, affidavits, and admissions on file, and drawing all justifiable inferences in favor of the party opposing the motion. Caboni v. Gen. Motors Corp., 278 F.3d 448, 451 (5th Cir. 2002). The Court may not weigh the evidence or evaluate the credibility of witnesses. Id.
The moving party bears the initial burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). If the moving party demonstrates an absence of evidence supporting the nonmoving party’s case, then [*7] the burden shifts to the nonmoving party to come forward with specific facts showing that a genuine issue for trial exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). The nonmoving party cannot rest on the mere allegations of the pleadings to sustain this burden. Fed. R. Civ. P. 56(e); Anderson, 477 U.S. at 248. “After the nonmovant has been given an opportunity to raise a genuine factual issue, if no reasonable juror could find for the nonmovant, summary judgment will be granted.” Caboni, 278 F.3d at 451. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248. The admissibility of summary judgment evidence is subject to the same rules of admissibility applicable to a trial. Resolution Tr. Corp. v. Starkey, 41 F.3d 1018, 1024 (5th Cir. 1995) (citing Munoz v. Int’l All. of Theatrical Stage Emps. & Moving Picture Mach. Operators of the U.S. & Can., 563 F.2d 205, 297 n.1 (5th Cir. 1977)). Federal courts sitting in diversity apply state substantive law and federal procedural law. Shady Grove Orthopedic Ass’n, P.A. v. Allstate Ins. Co., 559 U.S. 393, 437, 130 S. Ct. 1431, 176 L. Ed. 2d 311 (2010) (citing Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427, 116 S. Ct. 2211, 135 L. Ed. 2d 659 (1996)).
III. Discussion
As a preliminary matter, the Court notes that the R&R, which recommends denying Jacobi’s Motion for Partial Summary Judgment on the gross negligence claim filed against him, has been mailed to Jacobi twice to the last known address provided by Jacobi’s former counsel. The first time, the R&R was sent by certified mail, return receipt requested. (Doc. 85). The second time, the R&R was mailed via FedEx [*8] International Priority. (Doc. 99). The first receipt was returned to the Clerk of Court on December 3, 2021, marked “Return to Sender” and “Unable to Forward.” (Doc. 102). The only address on file for Jacobi is that provided by his former attorney. As of the date of this Order, Jacobi has not provided the Court with a change of address. Accordingly, the Court finds Jacobi did not file timely objections to the R&R. See, e.g., Wright v. Wells Fargo Bank, N.A., No. A-12-CV-753-LY, 2014 WL 625603, at *1 (W.D. Tex. Jan. 3, 2014). The Court now turns to Plaintiffs’ Objections.
Plaintiffs first generally object to the Magistrate Judge’s finding that there is “insufficient evidence of the subjective element of [Power of Grace]’s gross negligence.” (Doc. 92 at 2). However, Plaintiffs do not expand on this particular objection. Id. Because the Court is not required to review frivolous, conclusive, or general objections, Plaintiffs’ first objection is overruled. See Minor v. Child Protective Agency, No. 5:20-CV-00405-OLG, 2020 WL 8915668, at *1 (W.D. Tex. June 5, 2020), appeal dismissed, No. 20-50680, 2020 WL 8551905 (5th Cir. Sept. 8, 2020) (citing Battle, 834 F.2d at 421).
Plaintiffs also challenge the Magistrate Judge’s finding that “Plaintiffs had not asserted a claim for gross negligence and exemplary damages.” (Doc. 92 at 2). Although the Magistrate Judge did not enumerate the gross negligence claim in the list of claims raised by Plaintiffs against Defendants (see [*9] Doc. 83 at 2), he did review the gross negligence claims asserted in Plaintiffs’ Complaint and Intervenor’s Complaint in Intervention (see Doc. 83 at 5, 14). Accordingly, the objection is overruled.
Next, Plaintiffs argue that the Magistrate Judge erred in failing to “recognize that by satisfying the objective burden of the gross negligence claims against [Power of Grace] there is sufficient evidence to support the subjective elements or at a minimum raise a genuine issue of material fact for the jury to determine.” (Doc. 92 at 3). Plaintiffs specify that evidence of the “extreme risk posed by Power of Grace placing an untrained and unqualified Jacobi behind the wheel of a deficient tractor-trailer on a high-speed highway” supports Power of Grace’s objective and subjective awareness and conscious disregard of the risk. Id.
A claim for gross negligence contains two elements: one is objective and the other subjective. See U-Haul Int’l Inc. v. Waldrip, 380 S.W.3d 118, 137 (Tex. 2012). Plaintiffs challenge the Magistrate Judge’s analysis of the second prong. (Doc. 92 at 3). The subjective prong of a gross negligence claim “requires that the defendant knew about the risk, but that the defendant’s acts or omissions demonstrated indifference to the consequences [*10] of its acts.” Phillips v. Super Servs. Holdings, LLC, 189 F. Supp. 3d 640, 654 (S.D. Tex. 2016) (citing U-Haul, 380 S.W.3d at 137). “An act or omission that is merely thoughtless, careless, or not inordinately risky cannot be grossly negligent.” See id. (citing Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 22 (Tex. 1994)).
Plaintiffs allege that the following factors establish Power of Grace’s subjective awareness about the risk: hiring Jacobi even though he did not have a valid driver’s license, violating regulations affecting the tractor-trailer’s roadworthiness, and failing to verify driver qualifications or experience, resulting in hiring an inexperienced and unqualified driver. (Doc. 92 at 3). In Texas, however, the law is clear that a gross negligence claim in the context of negligent hiring or entrustment must be supported “by more than a finding that the driver was unlicensed or inexperienced[.]” Escalante v. Creekside Logistics, LLC, No. 5:18-CV-116-OLG, 2019 WL 9135758, at *5 (W.D. Tex. Feb. 12, 2019) (internal quotation marks omitted) (quoting Phillips, 189 F. Supp. 3d at 658). Likewise, “a failure to sufficiently inquire into the employee’s driving record is insufficient to impose punitive damages.” Baird v. Shagdarsuren, No. 3:17-CV-2000-B, 2020 WL 208815, at *5 (N.D. Tex. Jan. 14, 2020) (citation omitted). What is lacking, in this case, is evidence of Power of Grace’s knowledge of any “incompetence or habitual recklessness on [Jacobi’s] part.” See id. (quoting [*11] Phillips, 189 F. Supp. 3d at 658) (explaining that punitive damages are available where “there is evidence that the driver was in fact incompetent or habitually reckless, and the owner knew or should have known that the driver was incompetent or reckless” (emphasis added)). For this reason, the Court overrules Plaintiffs’ third objection.
Finally, Plaintiffs argue that the Magistrate Judge’s ruling is premature because Jacobi has not been deposed. (Doc. 92 at 3-4). Plaintiffs maintain that Jacobi might have information regarding Power of Grace’s knowledge and awareness of “the extreme risk involved by placing Jacobi on the road.” Id. However, the trial in this case is set for March 21, 2022, and will proceed accordingly with or without Jacobi.2 Thus, the Magistrate Judge’s ruling on the gross negligence claim, based on the summary judgment evidence before him, was not premature.
IV. Conclusion
For the foregoing reasons, the Court ADOPTS the R&R to the extent that it is consistent with this Order. (Doc. 83).
The Court further OVERRULES Plaintiffs’ Objections. (Doc. 92).
The Court finally GRANTS IN PART and DENIES IN PART Defendants’ Motion for Partial Summary Judgment. (Doc. 39).
It is so ORDERED.
SIGNED this 4th day of January, [*12] 2022.
/s/ David Counts
DAVID COUNTS
UNITED STATES DISTRICT JUDGE
End of Document
1 According to defense counsel, Jacobi left for Mexico and his last known address is: Prolongacion Eje 6 Sur 560, Bodega # 54, Area Federal Central de Abastos, Alcaldia Iztapalapa, Ciudad de Mexico C.P. 09040. (Doc. 82 at 3).
2 There is very little Plaintiffs, Intervenor, or Power of Grace can do to ensure Jacobi appears for a deposition. The Court will not delay the trial any further in hopes that Jacobi will defend this case.
