United States District Court,

D. Nevada.

Virginia MITSCHKE, Plaintiff(s),

v.

GOSAL TRUCKING, LDS., et al., Defendant(s).

No. 2:14–CV–1099 JCM (VCF). | Signed April 30, 2015.

Attorneys and Law Firms

James E. Smyth, II, Lisa J. Zastrow, Kaempfer Crowell Renshaw Gronauer & Fiorentino, Las Vegas, NV, for Plaintiff.

Nathan Reinmiller, Sabrina G. Wibicki, Alverson, Taylor, Mortensen & Sanders, James R. Olson, Thomas D. Dillard, Olson, Cannon, Gormley, Angulo & Stoberski, Las Vegas, NV, for Defendant.

 

 

ORDER

JAMES C. MAHAN, District Judge.

*1 Presently before the court is plaintiff Virginia Mitschke’s (hereinafter “plaintiff”) motion for partial summary judgment.1 (Doc. # 60). Defendants Gosal Trucking, Ltd. and Saeed Samimi (collectively “defendants”) filed a response, (doc. # 62), and plaintiff filed a reply, (doc. # 67).2

 

 

I. Background

This case arises out of a motor vehicle accident occurring on August 1, 2013. (Doc. # 1–2). Plaintiff, a citizen of Idaho, and her husband Richard Darnell (“Richard”) were driving on Interstate 15 in Clark County, Nevada, when their pickup truck collided with a truck driven by defendant Saeed Samimi (“Samimi”), a Canadian citizen. Samimi was employed by defendant Gosal Trucking, Ltd. (“Gosal Trucking”), a Canadian corporation. Plaintiff and her husband both suffered severe injuries. Richard was forced to undergo numerous surgeries and died 24 days after the accident. (Doc. # 1–2).

 

On May 7, 2014, plaintiff filed a complaint individually and as co-administrator of her husband’s estate in Nevada state court. On July 3, 2014, defendants removed the instant action to federal court. (Doc. # 1). On October 16, 2014, the court granted defendants’ partial motion to dismiss, dismissing seven causes of action from plaintiff’s complaint. Plaintiff’s remaining claims include (1) wrongful death; (2) loss of consortium; (3) negligence; (4) bystander negligent infliction of emotional distress; and (5) negligent hiring, training, retention, and/or supervision. (Doc. # 55). Plaintiff seeks general damages for pain, suffering, and emotional distress; compensatory damages; reimbursement for funeral and medical expenses; punitive damages; and attorney’s fees and costs. (Doc. # 1–2).

 

Plaintiff now moves for partial summary judgment on her negligence claim.

 

 

II. Legal Standard

The Federal Rules of Civil Procedure allow summary judgment when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that “there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). A principal purpose of summary judgment is “to isolate and dispose of factually unsupported claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986).

 

For purposes of summary judgment, disputed factual issues should be construed in favor of the non-moving party. Lujan v. Nat’l Wildlife Fed., 497 U.S. 871, 888 (1990). However, to be entitled to a denial of summary judgment, the non-moving party must “set forth specific facts showing that there is a genuine issue for trial .” Id.

 

In determining summary judgment, a court applies a burden-shifting analysis. “When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case.” C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir.2000) (citations omitted).

 

*2 By contrast, when the non-moving party bears the burden of proving the claim or defense, the moving party can meet its burden in two ways: (1) by presenting evidence to negate an essential element of the non-moving party’s case; or (2) by demonstrating that the non-moving party failed to make a showing sufficient to establish an element essential to that party’s case on which that party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323–24. If the moving party fails to meet its initial burden, summary judgment must be denied and the court need not consider the non-moving party’s evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 15960 (1970).

 

If the moving party satisfies its initial burden, the burden then shifts to the opposing party to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 631 (9th Cir.1987).

 

 

III. Discussion

Plaintiff moves for partial summary judgment on her negligence claim against defendants Samimi and Gosal Trucking. Plaintiff contends that these defendants are liable as a matter of law for negligence. In support of her motion, plaintiff attaches her own affidavit, her husband’s autopsy report, and a criminal complaint against defendant Samimi. (Doc. # 60).3

 

“A claim for negligence in Nevada requires that the plaintiff satisfy four elements: (1) an existing duty of care, (2) breach, (3) legal causation, and (4) damages.” Turner v. Mandalay Sports Entm’t, LLC, 180 P.3d 1172, 1175 (Nev.2008).

 

Plaintiff believes that summary judgment against defendant Samimi is proper based on the following facts. In her motion and affidavit, plaintiff states that Samimi “unlawfully failed to maintain his motor vehicle within the market travel lane,” and that as a result, “the right side of the huge Kenworth Aerocab semi truck and trailer he was driving struck the left side of our much smaller 1997 F–150 Ford pickup….” (Doc. # 60).

 

The attached autopsy report provides that plaintiff’s husband “died as a result of multiple blunt force motor vehicle trauma. Other significant conditions include endocarditis and atrial fibrillation.” (Doc. # 60–2). Plaintiff also declares that “Defendant Saeed has been charged with criminal manslaughter.” (Doc. # 60–1). The criminal complaint charges defendant Samimi with vehicular manslaughter “through an act or omission that constitutes simple negligence,” as well as failure to maintain his travel lane. (Doc. # 60–3).

 

Plaintiff’s motion essentially restates the allegations of her complaint, and does not show that she is entitled to summary judgment. To obtain summary judgment in this case, plaintiff must show the absence of a genuine issue of fact as to each material issue, such that she would be entitled to a directed verdict at trial. See C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir.2000).

 

*3 Plaintiff cannot show that defendant Saeed was negligent as a matter of law. In particular, plaintiff fails to show that defendant Samimi owed plaintiff and her husband a duty and breached that duty. Plaintiff’s arguments as to duty are conclusory. Further, plaintiff cannot prove that defendant Samimi breached any duty owed simply because a criminal complaint was filed against him.

 

The attached autopsy report contains opinions about Richard’s cause of death that are not properly considered absent expert certification. Finally, as defendants note, plaintiff’s affidavit includes legal conclusions and statements for which plaintiff lacks personal knowledge. These are entitled to no weight, and fall far short of establishing that plaintiff would be entitled to a directed verdict at trial.

 

Plaintiff has not produced sufficient evidence to entitle her to summary judgment. She does not establish the absence of a genuine dispute of fact on each issue material to her case. Because plaintiff fails to meet the above burden, defendants need not rebut plaintiff’s motion by showing a genuine dispute of material fact.

 

In any case, defendants do so here. Specifically, defendants provide a witness statement, accident report, and weather data suggesting that heavy winds may have contributed to the accident. (Doc. # 62–4). Further, defendants note the additional health conditions listed in the autopsy report, arguing that they raise causation questions. These disputed facts are material to the issue of negligence in the case.

 

Notably, plaintiff also cannot show defendant Gosal Trucking’s liability for negligence as a matter of law under the doctrine of respondeat superior. Because plaintiff fails to demonstrate that summary judgment on negligence is proper, the court will not address the extent to which defendant Gosal Trucking is liable based on defendant Samimi’s conduct.

 

On summary judgment, the court must construe disputed factual issues in favor of defendants. In light of the foregoing, plaintiff’s motion will be denied. Accordingly, the court need not address defendants’ alternative request to conduct additional discovery pursuant to Federal Rule of Civil Procedure 56(d). (Doc. # 62).

 

In their response to plaintiff’s motion, defendants also request an award of fees on the grounds that plaintiff’s motion is unsupported and “possibly sanctionable.” Further, defendants contend that plaintiff’s counsel has been uncooperative, causing the parties to file unnecessary motions. (Doc. # 64).

 

A request for a court order must be made by motion. Fed.R.Civ.P. 7(b)(1). Further, pursuant to District of Nevada Special Order 109(III)(F)(4), a separate document must be filed on the docket for each purpose. On this basis, the court will not consider defendants’ request for fees.

 

 

IV. Conclusion

Accordingly,

 

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that plaintiff’s motion for partial summary judgment, (doc. # 60), be, and the same hereby is, DENIED.

 

 

 

Footnotes

 

1

 

Plaintiff also filed an errata to her motion, stating that she inadvertently filed her motion without page 2. (Doc. # 61). Plaintiff attached page 2 to her errata, as a separate docket entry. (Doc. # 61). For purposes of clarity, the court will cite to plaintiff’s entire motion for summary judgment, including page 2, as docket number 60.

 

2

 

Defendant Canadian Western Bank (“CWB”) joined defendants’ response, (doc. # 63), and also filed its own response to plaintiff’s motion for partial summary judgment, (doc. # 64). CWB responded to plaintiff’s motion out of caution, because plaintiff included of an allegation against CWB in the affidavit in support of her motion. (Doc. # 60–1).

However, plaintiff’s motion indicates that she seeks summary judgment against only defendants Samimi Saeed and Gosal Trucking, Ltd., on her negligence claims. (Doc. # 60). Page 2 of plaintiff’s motion includes the following footnote: “This motion is intentionally narrow and does not address any additional independent claims, including independent claims and liability arguments as against Defendant Canadian Western Bank.” (Doc. # 61). Accordingly, the court will not address the merits of any allegations or evidence against CWB at this time. As a result, the court need not consider CWB’s joinder or response to plaintiff’s motion. (Doc. # 64).

 

3

 

As defendants note, plaintiff fails to authenticate these exhibits. The court could thus refuse to consider them on these grounds. See Orr v. Bank of Am., 285 F.3d 764, 773 (9th Cir.2002). In any case, plaintiff’s proposed evidence does not entitle her to summary judgment.

Further, the court may not consider additional evidence produced with plaintiff’s reply. Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir.1996) (holding that where a reply asserts new evidence, the court should not consider it without giving the opposing party an opportunity to respond). While any such evidence has been disregarded, these issues are again inconsequential, as the court finds that plaintiff has not met her burden for summary judgment.

United States District Court,

N.D. Texas,

Dallas Division.

Timothy BLACKWELL, Plaintiff,

v.

ACROSS U.S.A., INC., Defendant.

Civil Action No. 3:14–CV–3912–L. | Signed April 23, 2015.

Attorneys and Law Firms

David Blake Urteago, The Pettit Law Firm, Dallas, TX, for Plaintiff.

Damon Edwin Mathias, Mathias Civil Justice PLLC, Dallas, TX, for Defendant.

 

 

MEMORANDUM OPINION AND ORDER

SAM A. LINDSAY, District Judge.

*1 Before the court is Plaintiff’s Motion to Remand, filed November 5, 2014. After careful consideration of the motion, response, reply, record, and applicable law, the court grants Plaintiff’s Motion to Remand and remands this action to County Court at Law No. 5, Dallas County, Texas.

 

 

I. Background

Timothy Blackwell (“Plaintiff” or “Blackwell”) originally filed this action against Across USA, Inc. (“Defendant” or “Across U.S.A.”) in County Court at Law No. 5, Dallas County, Texas, on September 29, 2014. Blackwell filed Plaintiff’s First Amended Petition (“Amended Petition”) on October 29, 2014. He asserts claims for violations of the Texas Deceptive Trade Practices Act, fraudulent inducement, negligent misrepresentation and gross negligence. Blackwell seeks compensatory damages, exemplary damages, attorney’s fees, and any other relief to which he might be entitled. This action arises out of what Plaintiff alleges is a “bait and switch” scheme by Across U.S.A. with respect to a contract between the parties for moving Plaintiff’s and his partner’s personal and household possessions from their former abode in Plano, Texas, to their current abode in Mint Hill, North Carolina.

 

Across U.S.A. removed the state court action to federal court on November 4, 2014. Defendant contends that removal is proper because: (1) Plaintiff’s cause of action against it as the motor carrier of household goods from Plano, Texas, to Mint Hill, North Carolina, under a single bill of laden, is governed by the Carmack Amendment, 49 U.S.C. § 14706; (2) federal question jurisdiction exists, as the right Plaintiff seeks to assert requires the resolution of a substantial federal question; and (3) complete diversity of citizenship exists between the parties.

 

Blackwell disagrees and contends that: (1) the forum selection clause between the parties requires remand because Across U.S.A. waived its right to remove; (2) the Carmack Amendment is not applicable because he does not seek to recover for the loss or injury to property but for a “bait and switch” tactic used by Across U.S.A.; and (3) the in-state defendant rule prevents removal based on diversity of citizenship. The court agrees with Blackwell that the forum selection clause mandates remand because Defendant waived its right to remove. As the court finds this argument dispositive, it declines to address the second and third reasons advanced by Plaintiff for the remand of this action.

 

 

II. Analysis

A. Forum Selection Clauses

A party to a contract may waive its right to remove an action to federal court. Waters v. Brown–Ferris Indus., Inc., 252 F.3d 796, 797 (5th Cir.2001). Specifically, “[a] party may waive its rights by explicitly stating that it is doing so, by allowing the other party to choose venue, or by establishing an exclusive venue within the contract.” City of New Orleans v. Municipal Admin. Servs., 376 F.3d 501, 504 (5th Cir.2004).

 

*2 “Where such forum selection provisions have been obtained through ‘freely negotiated’ agreements and are not ‘unreasonable and unjust,’ … their enforcement does not offend due process.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 n. 14, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). The enforceability of a forum selection clause is a question of law, and such clauses are presumptively valid. See Mitsui & Co. (USA), Inc. v. Mira M/V, 111 F.3d 33, 35 (5th Cir.1997). The party resisting the forum selection clause must show that the clause is “unreasonable” before a court may decline to enforce it. Marinechance Shipping, Ltd. v. Sebastian, 143 F.3d 216, 220 (5th Cir.1998). Unreasonableness may be demonstrated by “a showing that the clause results from fraud or overreaching, that it violates a strong public policy, or that enforcement of the clause deprives the [party resisting the clause] of his day in court .” Afram Carriers, Inc. v. Moeykens, 145 F.3d 298, 301 (5th Cir.1998) (quoting Mitsui & Co., 111 F.3d at 35). “The party resisting enforcement on these grounds bears a ‘heavy burden of proof.’ ” Haynsworth v. The Corporation, 121 F.3d 956, 963 (5th Cir.1997) (quoting M/S Bremen v. Zapata Off–Shore Co., 407 U.S. 1, 17, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972)). Although M/S Bremen set forth the criteria and procedures regarding the enforceability of forum selection clauses to be applied by a federal court deciding admiralty cases, the rules set forth in M/S Bremen equally apply to forum selection clauses in diversity cases or those that involve a federal question. Haynsworth, 121 F.3d at 962 (citations omitted).

 

 

B. Discussion

The forum selection clause in this case provides as follows:

Agreed Mandatory Choice of Law, Venue & Jurisdiction. If a lawsuit becomes necessary to resolve any dispute between the carrier and shipper, said suit shall and must only be brought in circuit or county court in and for Dallas County, Texas. Suits involving dispute[s] over interstate shipments must be limited to the governing federal law. Both parties agree to submit themselves to the jurisdiction of the Texas Courts and agree given the relationship to the state, such exercise is reasonable and lawful. Shipper consents to jurisdiction in Dallas County, Texas and hereby waives the right to be served within the State of Texas.

Pl.’s Mot. to Remand, Ex. A–1 at 3; Ex. A–2, § 11. From the clear and unequivocal language of this provision, any lawsuit must be brought in the “circuit or county court in and for Dallas County, Texas.” The court takes judicial notice that there is no circuit court in and for Dallas County, Texas. Moreover, the parties expressly agreed to submit themselves to “the jurisdiction of the Texas Courts.”

 

A federal district court is not a “Texas” court. In Dixon v. TSE International, Incorporated, 330 F.3d 396 (5th Cir.2003), the Fifth Circuit addressed this issue and succinctly stated:

Federal district courts may be in Texas, but they are not of Texas. Black’s Law Dictionary defines “of” as “denoting that from which anything proceeds; indicating origin, source, descent.” Federal courts indisputably proceed from, and find their origin in, the federal government, though located in particular geographic regions. By agreeing to litigate all relevant disputes solely in “the Courts of Texas,” TSE waived its right to removal.

*3 Id. at 398 (footnote omitted). The Northern District of Texas has its origin in Article III of the United States Constitution and the federal statutes. The Northern District of Texas is a creation of the federal government and comprises 100 Texas counties, one of which is Dallas County. See 28 U.S.C. § 124(a)(1)-(7). Therefore, it is not a forum in which this action may proceed. By purposefully agreeing to litigate any legal dispute in the “county court in and for Dallas County, Texas,” and by submitting to “the jurisdiction of the Texas Courts,” Across U.S.A. waived its right to removal.

 

In this case, Across U.S.A. acknowledges that forum selection clauses should be enforced unless the opposing party shows that enforcement is unreasonable. Def.’s Resp. to Pl.’s Mot. to Remand 6. Across U.S.A. sets forth no grounds to establish that enforcement of the forum selection clause agreed to by the parties would be unreasonable. Defendant has not even alleged, much less established, that: (1) the inclusion of the clause in the parties’ contract was a result of fraud or overreaching; (2) it will be deprived of its day in court; (3) the fundamental unfairness of the laws of Texas will deprive it of a remedy; or (4) enforcement of the clause would contravene a strong public policy of the State of Texas. Here, Across U.S.A., a Texas corporation with its principal place of business in Dallas County, drafted the contract that includes the forum selection clause. Given that Defendant is a Texas citizen, the court fully understands why it would want litigation to be decided by a Texas court. Submission to the Texas courts is what Across U.S.A. intended and bargained for, and nothing has been presented to justify the court relieving Across U.S.A. from what it knowingly and intentionally contracted for in advance of this litigation. The court concludes that Across U.S.A. is bound by its contractual waiver as set forth in the forum selection clause.

 

 

III. Attorney’s Fees

Blackwell has requested that the court award him attorney’s fees and costs. He seeks attorney’s fees and costs incurred for obtaining a remand of this action to state court pursuant to 28 U.S.C. § 1447(c). Section 1447(c) provides that “[a]n order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.” 28 U.S.C. § 1447(c). There is no “automatic entitlement to an award of attorney’s fees.” Valdes v. Wal–Mart Stores, Inc., 199 F.3d 290, 292 (5th Cir.2000). Bad faith is not “a prerequisite to awarding attorney fees and costs.” Id. (citation omitted). “Absent unusual circumstances, courts may award attorney’s fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal. Conversely, when an objectively reasonable basis exists, fees should be denied.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141, 126 S.Ct. 704, 163 L.Ed.2d 547 (2005) (citations omitted). In this regard, the court must decide “whether the defendant had objectively reasonable grounds to believe the removal was legally proper” at the time of removal, “irrespective of the fact that it might ultimately be determined that removal was improper.” Valdes, 199 F.3d at 293.

 

*4 As evidenced by the cases cited herein, the area of law regarding removal, remand, forum selection clauses, and waiver was well-established more than ten years prior to removal of this action to federal court by Defendant. Given the strength of this authority, Across U.S.A. did not have objectively reasonable grounds to believe that removal was legally proper. Simply stated, this action should not have been removed to federal court. The court therefore concludes that the removal to federal court was objectively unreasonable, and Blackwell is entitled to his reasonable attorney’s fees and costs expended in obtaining a remand of this action. In this vein, Blackwell must provide documentation to show that the amount he seeks in attorney’s fees and expenses is reasonable. “A request for attorney’s fees should not result in a second major litigation.” Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). The parties therefore are strongly urged to reach an agreement regarding attorney’s fees and costs; however, if an agreement cannot be reached, any motion for attorney’s fees and expenses must be filed by May 7, 2015.

 

 

IV. Conclusion

For the reasons stated herein, the court concludes that the forum selection clause agreed to by the parties is enforceable and that Across U.S.A. waived its right to remove this action to federal court. Accordingly, the court grants Plaintiff’s Motion to Remand and remands this action to County Court at Law No. 5, Dallas County, Texas. The clerk of the court shall effect this remand in accordance with the usual procedure. For the reasons previously stated, Blackwell is entitled to a reasonable award of attorney’s fees and costs.

 

It is so ordered.