2020 WL 1027678

United States District Court, E.D. Texas, Sherman Division.
Amber ANDUZA, Plaintiff,
v.
Marshall Corey BAER and May Trucking Company, Defendants.
Civil Action No. 4:19-cv-435
|
Signed 03/03/2020
Attorneys and Law Firms
David Ian Adest, Scott Bennett Frenkel, Frenkel & Frenkel, LLP, Dallas, TX, for Plaintiff.
David Lynn Sargent, Ross C. Miracle, Sargent Law, PC, Dallas, TX, for Defendants.

MEMORANDUM OPINION AND ORDER
AMOS L. MAZZANT, UNITED STATES DISTRICT JUDGE
*1 Pending before the Court is Defendants’ Motion for Partial Summary Judgment and Brief in Support (Dkt. #29). Having considered the motion and relevant pleadings, the Court finds that the motion should be GRANTED.

BACKGROUND

I. Factual Summary
The events giving rise to this lawsuit occurred on or about August 15, 2017, when Plaintiff Amber Anduza was traveling southbound on Interstate 35 East (I-35 E). Plaintiff alleges that Defendant Marshall Corey Baer (“Baer”), who was also traveling southbound on I-35 E, attempted to change lanes into her lane and collided into her vehicle. Plaintiff claims that this collision caused her to lose control of her vehicle, which resulted in her entering another lane where she was then rear-ended by a third vehicle. The vehicle that Defendant Baer is alleged to have operated at the time was apparently owned by Defendant May Trucking Company (“May,” and collectively with “Baer,” “Defendants”) and used by Defendant Baer with Defendant May’s permission.

In her Original Petition, Plaintiff asserted three causes of action: (1) negligence against Defendant Baer; (2) negligent entrustment against Defendant May; and (3) negligence against Defendant May on a theory of respondeat superior. Defendants seek summary judgment as to only the negligent entrustment claim against Defendant May.

II. Procedural History
On May 13, 2019, Plaintiff filed an Original Petition in the 16th Judicial District Court of Denton County, Texas (Dkt. #1-2). On June 13, 2019, Defendant May filed a Notice of Removal to this Court (Dkt. #1).

On November 26, 2019, Defendants filed a motion for partial summary judgment (Dkt. #29). Plaintiff has not responded to Defendants’ motion.

LEGAL STANDARD
The purpose of summary judgment is to isolate and dispose of factually unsupported claims or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). Summary judgment is proper under Rule 56(a) of the Federal Rules of Civil Procedure “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). A dispute about a material fact is genuine when “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 (1986). Substantive law identifies which facts are material. Id. The trial court “must resolve all reasonable doubts in favor of the party opposing the motion for summary judgment.” Casey Enters., Inc. v. Am. Hardware Mut. Ins. Co., 655 F.2d 598, 602 (5th Cir. 1981).

The party seeking summary judgment bears the initial burden of informing the court of its motion and identifying “depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials” that demonstrate the absence of a genuine issue of material fact. FED. R. CIV. P. 56(c)(1)(A); Celotex, 477 U.S. at 323. If the movant bears the burden of proof on a claim or defense for which it is moving for summary judgment, it must come forward with evidence that establishes “beyond peradventure all of the essential elements of the claim or defense.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). Where the nonmovant bears the burden of proof, the movant may discharge the burden by showing that there is an absence of evidence to support the nonmovant’s case. Celotex, 477 U.S. at 325; Byers v. Dall. Morning News, Inc., 209 F.3d 419, 424 (5th Cir. 2000).

*2 Once the movant has carried its burden, the nonmovant must “respond to the motion for summary judgment by setting forth particular facts indicating there is a genuine issue for trial.” Byers, 209 F.3d at 424 (citing Anderson, 477 U.S. at 248–49). A nonmovant must present affirmative evidence to defeat a properly supported motion for summary judgment. Anderson, 477 U.S. at 257. Mere denials of material facts, unsworn allegations, or arguments and assertions in briefs or legal memoranda will not suffice to carry this burden. Rather, the Court requires “significant probative evidence” from the nonmovant to dismiss a request for summary judgment. In re Mun. Bond Reporting Antitrust Litig., 672 F.2d 436, 440 (5th Cir. 1982) (quoting Ferguson v. Nat’l Broad. Co., 584 F.2d 111, 114 (5th Cir. 1978)). The Court must consider all of the evidence but “refrain from making any credibility determinations or weighing the evidence.” Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007).

ANALYSIS
Under Texas law, for Plaintiff to prevail on a negligent entrustment cause of action, she must show the following: (1) Defendant May entrusted the vehicle to Defendant Baer; (2) Defendant Baer was an unlicensed, incompetent, or reckless driver; (3) Defendant May knew or should have known, at the time of the entrustment, that Defendant Baer was an unlicensed, incompetent, or reckless driver; (4) Defendant Baer was negligent on the occasion in question; and (5) Defendant Baer’s negligence proximately caused Plaintiff’s injuries. See 4Front Engineered Sols., Inc. v. Rosales, 505 S.W.3d 905, 909 (Tex. 2016); Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 758 (Tex. 2007).

Defendants claim that Plaintiff has not presented sufficient evidence to establish a negligent entrustment cause of action. Specifically, Defendants submit that Plaintiff has failed to establish that (1) Defendant May negligently entrusted its vehicle to Defendant Baer; (2) Defendant Baer was a reckless driver; and (3) Defendant May knew, or should have known, that Defendant Baer was a reckless driver.

After a review of the record, the Court agrees with Defendants that Plaintiff has not presented any evidence that Defendant May was a reckless driver or that Defendant May knew, or should have known, the same. Plaintiff did not respond to Defendants’ motion for partial summary judgment or otherwise oppose the claims and arguments advanced by Defendants, so the Court presumes that Plaintiff does not controvert the facts set out by Defendants and has no evidence to offer in opposition to Defendants’ motion. LOCAL RULE CV-7(d). Without more from Plaintiff, the Court finds that there is no genuine issue of material fact as to one or more elements of her negligent entrustment claim against Defendant May.1

CONCLUSION
For the foregoing reasons, it is hereby ORDERED that Defendants’ Motion for Partial Summary Judgment and Brief in Support (Dkt. #29) is GRANTED. Plaintiff’s claim of negligent entrustment against Defendant May is hereby DISMISSED with prejudice.

IT IS SO ORDERED.

All Citations
Slip Copy, 2020 WL 1027678

Footnotes

1
The Court will emphasize that Plaintiff has had ninety-eight (98) days to respond to Defendants’ motion, or otherwise provide evidence to controvert the facts and arguments set forth therein, but has failed to do so.

2020 WL 897609

United States District Court, E.D. Kentucky,
Northern Division.
at Covington.
Jeffery Brian KIDWELL, Plaintiff
v.
MAYBACH INTERNATIONAL GROUP, et al., Defendants
CIVIL ACTION NO. 2:19-cv-149 (WOB-CJS)
|
Signed 02/24/2020
Attorneys and Law Firms
Caroline Ramsey Taylor, Whitfield Bryson & Mason, LLP, Nashville, TN, Douglas B. Abrams, Abrams & Abrams, Raleigh, NC, James R. McKoon, McKoon Williams Atchley & Stanley, Chattanooga, TN, John C. Whitfield, Whitfield Bryson & Mason, LLP, Madisonville, KY, for Plaintiff.
Brian Pokrywka, Lewis Brisbois Bisgaard & Smith LLP, Ft. Wright, KY, for Defendants.

MEMORANDUM OPINION AND ORDER
William O. Bertelsman, United States District Judge
*1 This personal injury action arose out of a vehicle accident that occurred in a gas station parking lot in Boone County, Kentucky. Plaintiff has brought claims for negligence and negligence per se as well as claims for negligent hiring, retention, supervision, entrustment, and training. (Doc. 1-1 ¶¶ 24-47). This case is now before the Court on Plaintiff’s motion to remand and Defendants’ partial motion to dismiss for failure to state a claim. (Docs. 4, 8). For the reasons below, both motions are DENIED.

I. Factual Background
The accident occurred on April 18, 2018, while Plaintiff was inspecting a tractor trailer driven by Nenard Madzarevic. (Doc. 1-1 ¶¶ 14, 18-20). Plaintiff was standing next to the trailer when Madzarevic drove forward and turned left. (Id. ¶¶ 18, 20). Madzerevic’s truck pinned Plaintiff against his own vehicle, crushing him and dragging him between the two vehicles until finally throwing him to the pavement. (Id. ¶ 20). The accident left Plaintiff with serious injuries, and he was transported via helicopter to Cincinnati for treatment.

Plaintiff originally filed suit in Cook County, Illinois, where Defendant Maybach has its headquarters. Maybach moved to dismiss the suit based on forum non conveniens because the accident occurred in Kentucky and several witnesses were still located in the area. (Doc. 8-4). The Cook County Court granted Maybach’s request and dismissed the suit under the Illinois statute addressing forum non conveniens. See Ill. Sup. Ct. R. 187(c)(2). Plaintiff refiled the suit in Boone County, Kentucky, and Defendants then removed the Boone County suit to this Court.

II. Arguments and Analysis

A. Motion to Remand
Plaintiff’s motion to remand argues that Defendants waived their right to remove when they asked the Illinois state court to dismiss the suit filed there. In Plaintiff’s view, Defendants made explicit representations to the Illinois court that they planned to litigate the suit in the state courts of Kentucky. Plaintiff bases this mostly on Defendant Maybach noting that Boone County Courts heard fewer cases and had a faster resolution time.

Plaintiff also argues that Defendants should be estopped from removing the case to federal court because Defendants’ references to Kentucky state court, in documents filed in Illinois state court, amounted to false representations of material fact that Defendants knew Plaintiff would rely upon when he filed suit in Boone County, Kentucky.

Plaintiff’s motion to remand is denied. While a party can waive its right to remove a case to federal court, such waivers must be clear and unequivocal. McKinnon v. Doctor’s Associates, Inc., 769 F.Supp 216, 217 (E.D. Mich. 1991) (citing Regis Associates v. Rank Hotels Lt.d, 894 F.2d 193, 195 (6th Cir. 1990)). Though Defendants referenced the docket of Boone County, Kentucky, in documents filed in Cook County, Illinois, they never clearly and unequivocally stated that they intended to waive their right to remove or litigate the case to a resolution in Kentucky state courts.

*2 Defendants’ references to Boone County include pointing out that the accident occurred there and noting that several witnesses live and work in the area. Defendant also provided comparisons between Cook County, Illinois’s, and Boone County, Kentucky’s, dockets and filing statistics, arguing that the case would be resolved faster in Kentucky’s courts. Contrary to Plaintiff’s belief, these references to filing statistics and to the location of the accident and witnesses are not clear and unequivocal expressions of an intent to litigate the case to a final resolution in Boone County, Kentucky.

A defendant may also indicate that it is submitting to the jurisdiction of the state court by making affirmative use of the process of the state court. Bedell v. H.R.C., Ltd., 522 F.Supp. 732, 738 (E.D. Ky. 1981). That is, defendants are not allowed to experiment in state court and then remove for another try in federal court. Id. Typically, in order to constitute a waiver, a defendant’s actions in state court must strike at the merits of a plaintiff’s claims. Id. at 739.

Merely filing a motion to dismiss based on forum non conveniens does not reach the merits of any claim. Courts dismiss cases based on forum non conveniens solely for administrative and public policy reasons. Since Defendants’ motion never addressed the merits of Plaintiff’s claims, Defendants’ arguments about why litigating in a different location would be preferable are insufficient to constitute an implicit waiver of their right to remove. Further, once the case was refiled in Kentucky state court, Defendants took no action in the Kentucky court beyond removing the case to this Court.

Plaintiff’s argument that Defendants should be equitably estopped from removing because they misrepresented a material fact is also unavailing. Defendants neither expressly represented that they intended to litigate the suit in state court, nor did they enter into an agreement with Plaintiff to do so. Again, Defendants did nothing more than file a motion to have the case dismissed so that it could be refiled in a more appropriate location. And that motion argued that Kentucky was a better forum because the accident occurred there, several witnesses still live in the area, and that the docket in Boone County, Kentucky, was likely less congested than the one in Cook County, Illinois. Neither Defendants’ actions nor their arguments can be construed as a promise to litigate the suit entirely in the state courts of Kentucky.

B. Partial Motion to Dismiss
Regarding the partial motion to dismiss Plaintiff’s claims of negligent hiring, retention, supervision, entrustment, and training, Defendants insist that Plaintiff merely recited the elements of these claims without providing details that support them.

Factual allegations in a complaint “must be enough to raise a right to relief above the level of speculation.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). But as Iqbal notes, determining whether a complaint states a plausible claim is ultimately a context-specific task that requires a court to draw on its experience and common sense. Iqbal, 556 U.S. at 1940.

While some of the complaint’s allegations are brief, there are several sensible reasons for allowing the claims to go forward. First, Plaintiff’s allegations give Defendants notice of Plaintiff’s claims. Next, allowing Plaintiff’s claims to go forward is unlikely to significantly expand the scope of discovery, and dismissing the claims before discovery could prolong the litigation by forcing Plaintiff to amend the complaint during or after discovery. Finally, Plaintiff’s obligations under Federal Rule of Civil Procedure 11 require him to dismiss unsupported claims, and Defendants will have the opportunity to move for summary judgment should they feel the claims are unsupported.

III. Conclusion
*3 For the reasons above, IT IS ORDERED that both Plaintiff’s motion to remand and Defendants’ partial motion to dismiss are DENIED. (Docs. 4, 8).

All Citations
Slip Copy, 2020 WL 897609