United States District Court for the Western District of Texas, El Paso Division

May 31, 2024, Decided; May 31, 2024, Filed

CAUSE NO. EP-24-CV-82-KC

Reporter

2024 U.S. Dist. LEXIS 99219 *; 2024 WL 2794964

FELIPE SALAS, Plaintiff, v. VRP TRANSPORTATION INC.; VRP TRANSPORTES DE MEXICO S. DE R.L. DE C.V.; and JUAN DAVID PRADO TORRES, Defendants.

Core Terms

allegations, removal, diversity, improper joinder, driving, entities, argues, state court

Counsel:  [*1] For Felipe Salas, Plaintiff: Craig D. Cherry, LEAD ATTORNEY, Justin Wayne Allen, Cherry Johnson Siegmund James, PLLC, Waco, TX USA; Jacob Charles Boswell, LEAD ATTORNEY, Robbie Malone, PLLC, Dallas, TX USA; Hector G. Longoria, Longoria Law Firm, Houston, TX USA; Ryan C. Johnson, Cherry Johnson Siegmund James PLLC, Waco, TX USA.

For VRP Transportes de Mexico S. de R.L. de C.V., Defendant: Barry L. Hardin, Waddell Serafino, Dallas, TX USA.

Judges: KATHLEEN CARDONE, UNITED STATES DISTRICT JUDGE.

Opinion by: KATHLEEN CARDONE

Opinion

ORDER

On this day, the Court considered Plaintiff Felipe Salas’s Motion to Remand (“Motion”), ECF No. 3. For the reasons set forth below, the Motion is GRANTED.

I. BACKGROUND

This case arises from a motor vehicle collision. Plaintiff alleges that on August 3, 2023, he was traveling westbound on I-10 in his 2018 Toyota Camry. Pet. 3, ECF No. 1-3. Defendant Juan David Prado was also traveling westbound on I-10 in an adjacent lane, driving a tractor trailer. Id. “[S]uddenly and without warning,” Torres “swerved” into Plaintiff’s lane and collided with him. Id. Plaintiff was injured, and his vehicle was damaged. Pet. 4. A police investigation determined that Torres caused the collision by failing [*2]  “to maintain single lane of travel,” and that Plaintiff was not at fault. Pet. 3-4.

Plaintiff alleges that, at the time of the accident, Torres was driving in the scope of his employment with both Defendants VRP Transportation, Inc. (“VRP USA”) and VRP Transportes de Mexico S. de R.L. de C.V. (“VRP Mexico”). Pet. 3. The truck Torres drove was owned or leased by both VRP USA and VRP Mexico. Id. And both entities “appear to operate out of the same office space” at an address in El Paso, Texas. Id.

On January 26, 2024, Plaintiff initiated this lawsuit by filing his Petition in the County Court at Law Number 3 for El Paso County, Texas. See Pet. 1. Plaintiff asserts state common law negligence claims against Torres, VRP USA, and VRP Mexico for damages suffered in the collision. Pet. 4-13. Plaintiff seeks to hold Torres directly liable for his allegedly negligent driving. Pet. 4-6, 11. And he raises two theories of liability against VRP USA and VRP Mexico: direct liability for negligently hiring and supervising Torres, Pet. 6-11, as well as vicarious liability for negligence committed by Torres in the scope of his employment, Pet. 12-13.

On March 11, 2024, VRP Mexico removed the case, asserting [*3]  diversity jurisdiction under 28 U.S.C. § 1332(a) as the basis for removal. Notice Removal ¶ 8, ECF No. 1. For purposes of assessing diversity jurisdiction, the parties agree that Plaintiff and VRP USA are citizens of Texas, while Torres and VRP Mexico are citizens of Mexico. Id. ¶¶ 2, 5-6; Mot. 1-2. Plaintiff moves to remand, arguing that the Court lacks subject-matter jurisdiction. Mot. 2-3. VRP Mexico filed a Response, ECF No. 4, to which Plaintiff filed a Reply, ECF No. 6. Neither Torres nor VRP USA have appeared.

II. DISCUSSION

A. Standard

A defendant may remove to federal district court any state court civil action over which the federal court would have original jurisdiction. 28 U.S.C. § 1441(a). A party can challenge the propriety of a removal by attempting to remand the case back to state court. Id. § 1447(c). Remand must be granted if a defect in subject matter jurisdiction is shown. Id.

Removal deprives a state court of the opportunity to adjudicate a case properly before it, “rais[ing] significant federalism concerns.” See Gasch v. Hartford Accident & Indem. Co., 491 F.3d 278, 281 (5th Cir. 2007) (quoting Carpenter v. Wichita Falls Indep. Sch. Dist., 44 F.3d 362, 365-66 (5th Cir. 1995), abrogated on other grounds by Rivet v. Regions Bank of La., 522 U.S. 470, 118 S. Ct. 921, 139 L. Ed. 2d 912 (1998)). For that reason, federal courts must strictly construe removal statutes and resolve doubts about removal in favor of remand. Id. at 281-82 (citations omitted); see also [*4]  Camsoft Data Sys., Inc. v. S. Elecs. Supply, Inc., 756 F.3d 327, 339 (5th Cir. 2014) (citing Gasch, 491 F.3d at 281-82). When a party moves to remand, the burden is on the removing party to establish “that federal jurisdiction exists and that removal was proper.” Wolf v. Deutsche Bank Nat’l Tr. Co. ex rel. Am. Home Mortg. Inv. Tr. 2007-1, 745 F. App’x 205, 207 (5th Cir. 2018) (quoting Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002)).

B. Analysis

Plaintiff argues that because he and VRP USA are both citizens of Texas for purposes of diversity jurisdiction, there is not complete diversity of citizenship between the parties and the case must be remanded to state court. Mot. 1-3. VRP Mexico does not dispute that Plaintiff and VRP USA are both Texas citizens. Resp. ¶¶ 2, 4. However, VRP Mexico argues that Torres was only employed by VRP Mexico, meaning Plaintiff cannot state a viable claim against VRP USA. Resp. 4-5. Consequently, VRP Mexico asks the Court to dismiss VRP USA as improperly joined, which would restore complete diversity of citizenship and obviate the need for remand. Id. at 5.

The doctrine of improper joinder allows a removing defendant to prove that a plaintiff improperly joined a nondiverse defendant to a lawsuit, thereby justifying dismissal of the nondiverse defendant and restoring complete diversity. Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 572-74 (5th Cir. 2004). Because this doctrine is but a “narrow exception to the rule of complete diversity . . . the ‘burden of demonstrating [improper] joinder [*5]  is a heavy one.'” McDonal v. Abbott Labs., 408 F.3d 177, 183 (5th Cir. 2005) (alteration in original) (quoting Griggs v. State Farm Lloyds, 181 F.3d 694, 701 (5th Cir. 1999)). That heavy burden rests on the defendant alleging improper joinder. Guillory v. PPG Indus., Inc., 434 F.3d 303, 308 (5th Cir. 2005) (citing B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. 1981)).

To establish improper joinder, the removing defendant must establish either “(1) actual fraud in the pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of action against the [nondiverse] party in state court.” Smallwood, 385 F.3d at 573 (quoting Travis v. Irby, 326 F.3d 644, 646-47 (5th Cir. 2003)). The second basis for improper joinder, inability to establish a cause of action, requires courts to “conduct a Rule 12(b)(6)-type analysis, looking initially at the allegations of the complaint to determine whether the complaint states a claim under state law against the in-state defendant.” Id. (citations omitted). At core, this Rule 12(b)(6)-type analysis asks whether “there is no possibility of recovery by the plaintiff against an in-state defendant.” Id. Courts use the federal pleading standard when conducting this analysis. Int’l Energy Ventures Mgmt. v. United Energy Grp., Ltd., 818 F.3d 193, 208 (5th Cir. 2016).

When conducting a Rule 12(b)(6) analysis, the court must accept well-pleaded facts as true and view them in a light most favorable to the plaintiff. Calhoun v. Hargrove, 312 F.3d 730, 733 (5th Cir. 2002); Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). Though a complaint need not contain “detailed” factual allegations, a plaintiff’s complaint must allege sufficient facts “to state a claim to relief that [*6]  is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007); Colony Ins. Co. v. Peachtree Constr., Ltd., 647 F.3d 248, 252 (5th Cir. 2011). If a complaint has sufficiently alleged a state-law claim against a nondiverse defendant, the district court may additionally make a “summary inquiry” into whether there are “discrete and undisputed facts that would preclude [the] plaintiff’s recovery against the in-state defendant.” Smallwood, 385 F.3d at 573-74.

VRP Mexico does not argue that Plaintiff’s joinder of VRP USA was actually fraudulent. See generally Resp. Rather, it argues that Plaintiff has failed to state a plausible claim for relief against VRP USA. Resp. 3. To state a negligence claim under Texas law, a plaintiff must allege: “(1) a legal duty; (2) a breach of that duty; and (3) damages proximately resulting from the breach.” Elephant Ins. Co. v. Kenyon, 644 S.W.3d 137, 144 (Tex. 2022) (citing Praesel v. Johnson, 967 S.W.2d 391, 394 (Tex. 1998)). “The threshold inquiry in a negligence case is whether the defendant owes a legal duty to the plaintiff.” Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995) (citations omitted). In Texas, a “person operating a motor vehicle on the public roads” has a duty to “do so in a careful, prudent manner with due regard to the rights of others on the road.” Wilson v. Penguin Trucking, Inc., No. H-19-2580, 2019 U.S. Dist. LEXIS 180509, 2019 WL 5296590, at *2 (S.D. Tex. Oct. 18, 2019) (quoting Cleaver v. Dresser Indus., 570 S.W.2d 479, 485 (Tex. Civ. App. 1978)).

VRP Mexico does not dispute that Plaintiff has adequately alleged that Torres breached his duty to drive carefully, and thus caused the collision that injured Plaintiff. See [*7]  generally Resp. Instead, VRP Mexico argues Plaintiff has failed to state a claim against VRP USA because VRP USA was not Torres’s employer. Id. at 3-5.

Under the doctrine of respondeat superior, “an employer may be vicariously liable for its employee’s negligence if ‘at the time of the negligent conduct, the worker (1) was an employee and (2) was acting in the course and scope of his employment.'” Gay v. Ala. Motor Express, No. 21-cv-255, 2023 U.S. Dist. LEXIS 2336, 2023 WL 123512, at *2 (W.D. Tex. Jan. 6, 2023) (quoting Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125, 130-31 (Tex. 2018)). “[A] person may function as the employee of two employers at the same time and as to the same conduct, ‘if the service to one does not involve an abandonment of the service to the other.'” Powell v. Knipp, 479 S.W.3d 394, 401 (Tex. App. 2015) (citing White v. Liberty Eylau Sch. Dist., 880 S.W.2d 156, 159 (Tex. App. 1994)).

Plaintiff alleges that Torres was driving in the scope of his employment with both VRP Mexico and VRP USA at the time of the accident. Pet. 3. He further alleges that both VRP entities jointly own or lease the truck that Torres was driving, and that both entities operate out of the same physical location in El Paso. Id. There is nothing inherently implausible about the notion that two affiliated entities with nearly identical business names, working in the same industry and operating out of the same office space, might share employees and equipment. And even if the Court were to accept [*8]  the proposition that it is implausible for Torres to be jointly employed by the two VRP entities, pleading in the alternative is allowed under Texas law. See Low v. Henry, 221 S.W.3d 609, 615 (Tex. 2007). Thus, Plaintiff has adequately alleged that VRP Mexico and VRP USA are both liable for Torres’s negligent driving under principles of respondeat superior.

VRP Mexico resists this conclusion on two grounds. First, it argues that Plaintiff’s allegations do not state a claim against VRP USA because they are “conclusory.” Resp. 4. Certainly, when conducting an improper joinder analysis, “the Court may properly disregard all legal conclusions couched as factual allegations.” Gros v. Warren Props. Inc., No. 12-cv-2184, 2012 U.S. Dist. LEXIS 167137, 2012 WL 5906724, at *6 (E.D. La. Nov. 26, 2012). But Plaintiff’s allegations about Torres’s employer, the ownership of the truck, and the co-location of the two similarly named entities’ offices do not simply regurgitate the standard for vicarious liability. They contain specifics that elevate them beyond mere conclusory allegations.¹ See Salazar v. Lubbock Cnty. Hosp. Dist., 982 F.3d 386, 392 (5th Cir. 2020) (Ho, J., concurring) (“[A] conclusory statement recites the bottom-line legal standard but fails to present any factual detail or specifics indicating what evidence will actually satisfy the requisite legal standard.”).

Second, VRP Mexico argues that Plaintiff cannot proceed [*9]  against VRP USA because VRP Mexico “has admitted via its pleadings that Defendant Torres was an employee of VRP Mexico and [was acting] in the course and scope of his employment with VRP Mexico at the time of the subject incident.” Resp. 4. VRP Mexico references no authority permitting a defendant’s unsworn factual contention to negate a plaintiff’s allegations when conducting a fraudulent joinder analysis. See generally id. Indeed, courts piercing the pleadings to conduct a summary inquiry look only to facts established by evidence that would be competent at summary judgment. See, e.g., Cormie’s Grocery & Deli, Inc. v. Colony Ins. Co., No. CV 12-562, 2012 U.S. Dist. LEXIS 98566, 2012 WL 2906634, at *5 & n.7 (W.D. La. July 16, 2012). And “unsworn allegations” made in a response brief “are not evidence” and “cannot defeat summary judgment.” Craig v. Martin, 49 F.4th 404, 416 (5th Cir. 2022).

As previously discussed, without evidence, the Court evaluates Plaintiff’s allegations under the familiar Rule 12(b)(6) standard, taking his allegations as true to determine whether he has stated a plausible claim for relief. Int’l Energy Ventures Mgmt., 818 F.3d at 208. VRP Mexico would have the Court do the opposite: reject Plaintiff’s allegations on the basis of VRP Mexico’s own, unsubstantiated allegation to the contrary. See Resp. 4. To prove improper joinder, VRP Mexico bears the “heavy burden” of demonstrating “that there is no possibility [*10]  of recovery by the plaintiff against an in-state defendant.” Smallwood, 385 F.3d at 573-74. By submitting no evidence to negate Plaintiff’s plausible allegation that Torres was acting in the scope of his employment with VRP USA when he negligently collided with Plaintiff, VRP Mexico has failed to carry that burden. Because Plaintiff has plausibly alleged a negligence claim against VRP USA on vicarious liability grounds,² VRP USA was properly joined, the parties are not completely diverse, and the Court lacks subject-matter jurisdiction under the only asserted basis, 28 U.S.C. § 1332(a)(2).

III. CONCLUSION

For the foregoing reasons, the Motion is GRANTED, and the case is IMMEDIATELY REMANDED to the County Court at Law Number 3 of El Paso County, Texas.

After remand, the Clerk shall close the case.

SO ORDERED.

SIGNED this 31st day of May, 2024.

/s/ Kathleen Cardone

KATHLEEN CARDONE

UNITED STATES DISTRICT JUDGE

End of Document

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¹ In the Reply, Plaintiff further bolsters these allegations with photographs showing that VRP Mexico and VRP USA use the same logo and keep trucks branded with each company’s name at the same yard in El Paso. Reply 4-5. Plaintiff also alleges that records published online by the Federal Motor Carrier Safety Administration show that the two entities share a mailing address in El Paso. Id. at 4. While these additional facts lend further support to Plaintiff’s allegations, the Court need not consider them in order to find that Plaintiff has stated a plausible claim for relief against VRP USA.

² The Court expresses no opinion as to whether Plaintiff has also stated a plausible claim against either Defendant on negligent hiring or supervision grounds.

United States District Court for the Eastern District of Louisiana

May 30, 2024, Decided; May 30, 2024, Filed

CIVIL ACTION NO. 23-280 SECTION M (4)

Reporter

2024 U.S. Dist. LEXIS 95897 *; 2024 WL 2784742

OTHELLO SANDIFER VERSUS JOHN DOE, et al.

Core Terms

fuel, summary judgment, premises, material fact, truck, deposition, nonmovant, genuine, tanks, safe, time of an accident, pedestrians, refueling, additive, lighting, marked, policies and procedures, windows, driver, fault

Counsel:  [*1] For Othello Sandifer, Plaintiff: Joshua David Allison, LEAD ATTORNEY, Joshua D. Allison, A Professional Law Corporation, Covington, LA; Adam N. Davis, Adam Davis Law Firm, Abita Springs, LA.

For Pilot Travel Centers, LLC, Intervenor: Deanne B. McCauley, LEAD ATTORNEY, Taylor, Wellons, Politz & Duhe, APLC (New Orleans), New Orleans, LA; B. Scott Cowart, Taylor, Wellons, Politz & Duhe, APLC (Baton Rouge), Baton Rouge, LA.

For U.S. Xpress, Inc., Defendant: Andrea Leigh Albert, LEAD ATTORNEY, Ryan Daniel O’Connor, Galloway, Johnson, Tompkins, Burr & Smith (Mandeville), Mandeville, LA.

Judges: BARRY W. ASHE, UNITED STATES DISTRICT JUDGE.

Opinion by: BARRY W. ASHE

Opinion

ORDER & REASONS

Before the Court is a motion for summary judgment filed by defendant Walmart, Inc. (“Walmart”).¹ Co-defendant U.S. Xpress, Inc. (“U.S. Xpress”) responds in opposition,² and Walmart replies in further support of its motion.³ Having considered the parties’ memoranda, the record, and the applicable law, the Court issues this Order & Reasons granting the motion.

I. BACKGROUND

This case concerns a personal injury. On December 18, 2021, Sandifer, who was working for Pilot Travel Centers (“Pilot”) as a truck driver, delivered fuel to the Walmart distribution [*2]  center in Robert, Louisiana.⁴ While Sandifer was outside of his truck but in the area designated for those persons doing fuel delivery, he was hit by an 18-wheeler tractor-trailer owned and operated by U.S. Xpress.⁵ Sandifer filed this suit in state court against Walmart, U.S. Xpress, and the unknown driver employed by U.S. Xpress,⁶ alleging negligence claims and seeking recovery for personal injuries he sustained.⁷ Walmart, with U.S. Xpress’s consent, removed the action to this Court, asserting diversity subject-matter jurisdiction.⁸

Thereafter, Sandifer filed an amended complaint expounding upon his claims against Walmart, making allegations that Walmart, as a premises owner, has a duty to “to regulate the movement of 18-wheelers while on its property and to do so in a way that reasonably ensures the safety of pedestrians and others in the area.”⁹ Stated differently, Sandifer claims that “Walmart has a duty to design a layout for the safe movement of automobiles and pedestrians on and across its premises.”¹⁰ This alleged duty requires Walmart, says Sandifer, “to devise and implement certain policies and procedures that are designed to maintain a safe and orderly movement of automobiles [*3]  and pedestrians across the premises it owns … [and to] take steps to ensure that those operating 18-wheelers and other dangerous machinery are sufficiently trained on the policies and procedures.”¹¹ According to Sandifer, Walmart was negligent in failing to: (a) monitor and regulate the movement of 18-wheelers on its property, (b) reasonably ensure and provide safety to persons in the area, (c) sufficiently devise and implement policies and procedures to maintain safe movement of vehicles and pedestrians, (d) train U.S. Xpress’s driver on Walmart’s policies and procedures, and (e) design a layout for the safe movement of vehicles and pedestrians.¹²

II. PENDING MOTION

Walmart moves for summary judgment, arguing that Sandifer fails to identify any rule of law — statute, jurisprudence, or general principle of fault — establishing that Walmart had a duty to train individuals delivering fuel to its distribution center on a third-party vendor’s behalf or that Walmart had a duty to control the activities of other third-party individuals on its premises.¹³ Walmart also argues that Sandifer has not alleged that an unreasonably dangerous condition existed on the premises, and indeed, testified [*4]  at his deposition that the premises were sufficiently lighted and that there was a clearly-marked yellow area designated for those persons who were refueling the tanks.¹⁴

In opposition U.S. Xpress argues that Walmart’s motion should be denied because there are disputed issues of material fact regarding the condition of Walmart’s premises that contributed to the accident, such as a lack of lighting, a lack of striping across the area for refueling the tanks, and a lack of signage.¹⁵ U.S. Xpress also argues that there are factual issues regarding whether Walmart owed Sandifer an unspecified duty regarding Walmart’s requirement that fuel additives be added to the fuel tanks as a part of the refueling process.¹⁶

Walmart replies, arguing that U.S. Xpress has not cited any law or evidence establishing that Walmart owed a duty to Sandifer or that a condition existed on Walmart’s premises that constituted an unreasonable risk of harm.¹⁷ Walmart points out that Sandifer did not oppose its motion and testified that, at the time of the accident, he was within a clearly-marked and adequately-lighted area where he was supposed to be safe to refuel the tanks.¹⁸ Walmart also cites Malveo’s deposition testimony [*5]  where he admitted that he was impatient to fuel up and went into the wrong lane, that he was not paying attention to the flow of traffic before he started moving because he was watching a video on his phone, that his windows were fogged obscuring his vision, and that the accident was his fault.¹⁹ Finally, Walmart contends that U.S. Xpress has identified no duty Walmart owed to Sandifer regarding the requirement upon fuel delivery to also pour in the fuel additive.²⁰ According to Walmart, summary judgment is not premature because it has shown that there is no evidence in the record supporting U.S. Xpress’s contention that lighting, striping, or signage contributed to the accident.²¹

III. LAW & ANALYSIS

A. Summary Judgment Standard

Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). “Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence [*6]  of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Id. A party moving for summary judgment bears the initial burden of demonstrating the basis for summary judgment and identifying those portions of the record, discovery, and any affidavits supporting the conclusion that there is no genuine issue of material fact. Id. at 323. If the moving party meets that burden, then the nonmoving party must use evidence cognizable under Rule 56 to demonstrate the existence of a genuine issue of material fact. Id. at 324.

A genuine issue of material fact exists if a reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The substantive law identifies which facts are material. Id. Material facts are not genuinely disputed when a rational trier of fact could not find for the nonmoving party upon a review of the record taken as a whole. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); EEOC v. Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014). Unsubstantiated assertions, conclusory allegations, and merely colorable factual bases are insufficient to defeat a motion for summary judgment. See Anderson, 477 U.S. at 249-50; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994); Hopper v. Frank, 16 F.3d 92, 97 (5th Cir. 1994). In ruling on a summary-judgment motion, a court may not resolve credibility issues or weigh evidence. See Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008). Furthermore, a court must assess the evidence, review [*7]  the facts, and draw any appropriate inferences based on the evidence in the light most favorable to the party opposing summary judgment. See Tolan v. Cotton, 572 U.S. 650, 656-57, 134 S. Ct. 1861, 188 L. Ed. 2d 895 (2014); Daniels v. City of Arlington, 246 F.3d 500, 502 (5th Cir. 2001). Yet, a court only draws reasonable inferences in favor of the nonmovant “when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts.” Little, 37 F.3d at 1075 (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990)).

After the movant demonstrates the absence of a genuine issue of material fact, the nonmovant must articulate specific facts showing a genuine issue and point to supporting, competent evidence that may be presented in a form admissible at trial. See Lynch Props., Inc. v. Potomac Ins. Co., 140 F.3d 622, 625 (5th Cir. 1998); Fed. R. Civ. P. 56(c)(1)(A), (c)(2). Such facts must create more than “some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. When the nonmovant will bear the burden of proof at trial on the dispositive issue, the moving party may simply point to insufficient admissible evidence to establish an essential element of the nonmovant’s claim in order to satisfy its summary-judgment burden. See Celotex, 477 U.S. at 322-25; Fed. R. Civ. P. 56(c)(1)(B). Unless there is a genuine issue for trial that could support a judgment in favor of the nonmovant, summary judgment must be granted. See Little, 37 F.3d at 1075-76.

B. Analysis

Sandifer asserts negligence and premises liability claims against Walmart. “Under Louisiana law, [*8]  courts apply the same duty/risk analysis to negligence claims, whether they arise out of a defendant’s negligent conduct or out of liability for defects in premises.” Boykin v. Surgi, 2023 U.S. Dist. LEXIS 152902, 2023 WL 5577470, at *1 (E.D. La. Aug. 29, 2023) (citing Farrell v. Circle K Stores, Inc., 359 So. 3d 467, 473 (La. 2023) (“Whether a claim arises in negligence under La. Civ. Code art. 2315 or in premises liability under La. Civ. Code art. 2317.1, the traditional duty/risk analysis is the same.”)). A plaintiff asserting a negligence claim must prove five separate elements:

(1) the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) the defendant’s conduct failed to conform to the appropriate standard (the breach element); (3) the defendant’s substandard conduct was a cause-in-fact of the plaintiff’s injuries (the cause-in-fact element); (4) the defendant’s substandard conduct was a legal cause of the plaintiff’s injuries (the scope of duty element); and, (5) proof of actual damages (the damages element).

Farrell, 359 So. 3d at 473 (citing Malta v. Herbert S. Hiller Corp., 333 So. 3d 384, 395 (La. 2021)). “If the plaintiff fails to prove any one element by a preponderance of the evidence, the defendant is not liable.” Id.

“The existence of a duty is a question of law.” Id. Courts must inquire “whether the plaintiff has any law (statutory, jurisprudential, or arising from general principles of fault) to support the claim that the [*9]  defendant owed him a duty.” Id. Generally, “the owner or custodian of property has a duty to keep the premises in a reasonably safe condition [and] must discover any unreasonably dangerous condition on the premises, and either correct the condition or warn potential victims of its existence.” Id. at 473-74.

Here, there is no law or evidence that Walmart breached a duty it owed to Sandifer. In his amended complaint, Sandifer alleged that Walmart was liable for the accident because it had a duty to design a layout for the safe movement of vehicles and pedestrians and train drivers on its policies and procedures for traversing its premises.²² However, plaintiff Sandifer did not himself bother to oppose Walmart’s motion for summary judgment, so he presents no law or evidence to support his unadorned allegations of duty. And U.S. Xpress has identified no law – whether statute, jurisprudence, or general principle of fault — establishing that Walmart had any such duty. U.S. Xpress has neither presented summary-judgment evidence that Walmart breached a duty or that an alleged breach was the cause of the accident, nor evidence of a condition of Walmart’s premises at the time of the accident that constituted [*10]  an unreasonable risk of harm. This is reflected in the deposition testimony of the two persons involved in the accident: Sandifer, who was engaged in fuel delivery when he was struck by Malveo’s truck, and Malveo, who was maneuvering his truck to a fuel pump when he hit Sandifer.

Both deposed about the layout of the fueling center, which consisted of a building containing two bays housing the fuel pumps — the door to the right-side bay marked with a sign saying “enter only,” and the left-side bay with a sign saying “exit only.”²³ The ground immediately outside the building, between the two bay doors, was striped with yellow lines to designate the area for persons engaged in refilling the center’s two fuel tanks and pouring in the fuel additive.²⁴

Sandifer testified at his deposition that the area where he was at the time of the accident was marked with yellow lines and well lit, and he never felt unsafe on the premises.²⁵ He also testified that there was a light rain at the time of the accident but the rain did not block his vision, and that Malveo was not paying attention and should have seen him.²⁶ Sandifer further stated that he could have refused to put the fuel additive into the tank, but [*11]  he did not do so.²⁷

Similarly, Malveo testified at his deposition that it was dark and foggy with a light rain at the time of the accident.²⁸ His truck windows were fogged to the point that he could not see out of them.²⁹ Due to the foggy windows, he did not see the entrance and exit signs on the building housing the fuel-pump bays.³⁰ Just before the accident, Malveo was stopped, looking at his phone and watching a video, with earphones in his ears.³¹ Because he was not paying attention, he did not see the truck coming from the opposite direction out of the left-side bay in front of him.³² Having been cut off by a truck moving into the right-side bay moments earlier, and impatient to refuel, Malveo put down his phone and decided to move his truck, against the traffic flow, across the yellow-striped area into the left-side lane marked exit only, although, in his hurry, he did not notice the sign at the time.³³ Malveo admitted that he should not have crossed the lane, that he did not see Sandifer due to his foggy windows although Sandifer was standing under a light, and that he was at fault for the accident.³⁴ But Malveo also testified that Sandifer should have put up cones and somehow signaled [*12]  Malveo as to his presence, perhaps by tapping on the driver’s side window of Malveo’s truck.³⁵

Thus, in their depositions, neither Malveo nor Sandifer placed any blame for the accident on a condition that existed on Walmart’s premises. Sandifer blamed Malveo. And Malveo took responsibility for the accident, except to the extent he sought to shift some blame to Sandifer. U.S. Xpress cites to deposition testimony and photographs to suggest that the lack of lighting, ground markings, and signage contributed to the accident and that, consequently, disputed factual issues make summary judgment inappropriate,³⁶ but, as reviewed above, the testimony and photographs reveal no such disputed issues of material fact. Instead, Sandifer and Malveo point to other factors as causing the accident, none of which implicate a duty on the part of Walmart. In sum, then, U.S. Xpress has not presented any evidence demonstrating a breach of a duty by Walmart that contributed to the accident. Further, U.S. Xpress has not explained how Walmart’s requiring the fuel additive caused the accident. It is irrelevant that Sandifer happened to be in that step of the refueling process at the time of [*13]  the accident. He could just as easily have been putting fuel in the tanks, as opposed to the additive. Both jobs occurred in the same marked and lighted area. At bottom, U.S. Xpress does not explain how different or more lighting, ground markings, or signage would have prevented the accident given the testimony of the two men involved. Accordingly, Walmart is entitled to summary judgment in its favor.

IV. CONCLUSION

Accordingly, for the foregoing reasons,

IT IS ORDERED that Walmart’s motion for summary judgment (R. Doc. 66) is GRANTED, and Sandifer’s claims against Walmart are DISMISSED WITH PREJUDICE.

New Orleans, Louisiana, this 30th day of May, 2024.

/s/ Barry W. Ashe

BARRY W. ASHE

UNITED STATES DISTRICT JUDGE

End of Document

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¹ R. Doc. 66.

² R. Doc. 78. Plaintiff Othello Sandifer did not oppose Walmart’s motion.

³ R. Doc. 80.

⁴ R. Doc. 1-2 at 2.

⁵ Id. at 3.

⁶ After suit was filed, Sandifer discovered that the truck driver was Malcolm A. Malveo, and attempted to file an amended complaint naming Malveo as a defendant. R. Doc. 24. However, upon Walmart’s motion, Sandifer’s first amended complaint was stricken because it was untimely filed. R. Doc. 56. Thus, Malveo is not a party to this suit.

⁷ R. Doc. 1-2 at 1-6.

⁸ R. Doc. 1.

⁹ R. Doc. 59 at 2.

¹⁰ Id.

¹¹ Id.

¹² Id. at 3.

¹³ R. Doc. 66-1 at 9-11.

¹⁴ Id. at 12-13.

¹⁵ R. Doc. 78 at 5-6.

¹⁶ Id. at 5, 7-8.

¹⁷ R. Doc. 80 at 1.

¹⁸ Id. at 1-3.

¹⁹ Id. at 3-6.

²⁰ Id. at 6-8.

²¹ Id. at 8-10.

²² R. Doc. 59 at 2.

²³ R. Docs. 78-2 at 95, 135-40 (photographs); 78-3 at 10-11, 138-41 (photographs).

²⁴ R. Doc. 78-2 at 69, 139 (photograph).

²⁵ Id. at 68-69, 71, 110, 118.

²⁶ Id. at 67-68, 115.

²⁷ Id. at 116.

²⁸ R. Doc. 78-3 at 9.

²⁹ Id. at 11.

³⁰ Id. at 88, 101.

³¹ Id. at 15-16.

³² Id. at 20-21, 80.

³³ Id. at 11, 16-18, 19 (“I was in a hurry to just hurry up and try to fuel.”), 21, 80, 86 (“I was just trying to hurry up and get that stop before anybody else cut me off.”).

³⁴ Id. at 76-77, 79, 129.

³⁵ Id. at 78-79, 114.

³⁶ R. Docs. 78; 78-1.