2021 WL 1234636

United States District Court, E.D. Kentucky.
JEFFREY M. STAPLETON, et al., Plaintiffs,
v.
SEVILLA VICENTE, et al., Defendants.
Civil Case No. 5:18-cv-504-JMH-MAS
|
Filed: 03/31/2021

MEMORANDUM OPINION AND ORDER
Joseph M. Hood Senior U.S. District Judge
*1 This matter comes before the Court on Defendant PM Transport of Florida LLC’s (“PM Transport”) Motion to Dismiss Second Amended Complaint [DE 95] requesting that the Court dismiss the claims against PM Transport without prejudice. Having considered this matter fully, and being otherwise sufficiently advised, PM Transport’s Motion to Dismiss [DE 95] will be granted.

I. FACTUAL AND PROCEDURAL BACKGROUND
On June 5, 2018, Plaintiff Jeffrey M. Stapleton was driving a tractor trailer on I-75 in Madison County, Kentucky when he and Defendant Sevilla Vicente, who was operating a separate tractor trailer (“the truck”), collided with each other. Following the accident, Jeffrey Stapleton and his wife, Beatrice Stapleton, filed the present action against Vicente, the driver, Shekhyna Truck, Inc., the owner of the truck, Blue Ocean Logistics Corp. (“Blue Ocean”), the carrier of the cargo, Costa Farms, the owner of the cargo, PM Transport, the broker that hired Blue Ocean to transport the cargo, and DMG Truck Repair Corporation, a company that allegedly repaired the truck prior to the accident. [DE 1-1; DE 25; DE 70].

The matter currently before the Court concerns the Stapletons’ claims against PM Transport, which was added to this case as a defendant in the August 26, 2019, Second Amended Complaint [DE 70]. The Second Amended Complaint alleges PM Transport is joint and severally liable for Vicente’s alleged negligence and negligent for not ensuring the truck and Vicente were in compliance with state statutes and Federal Motor Carrier Regulations despite having a duty to do so. [DE 70, at 5-6; 9-10]. The Stapletons claim PM Transport is liable for loss of consortium on behalf of Beatrice Stapleton, damages related to Jeffrey Stapleton’s medical expenses and lost wages, and punitive damages. [DE 70, at 12-13]. On April 8, 2020, PM Transport filed the present Motion to Dismiss [DE 95], which shall be discussed further herein.

II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) provides that a complaint may be attacked for failure “to state a claim upon which relief can be granted.” To survive a Rule 12(b)(6) motion to dismiss, a complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A motion to dismiss is properly granted if it is beyond doubt that no set of facts would entitle the petitioner to relief on his claims.” Computer Leasco, Inc. v. NTP, Inc., 194 F. App’x 328, 333 (6th Cir. 2006). When considering a Rule 12(b)(6) motion to dismiss, the court will presume that all the factual allegations in the complaint are true and draw all reasonable inferences in favor of the nonmoving party. Total Benefits Planning Agency v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008) (citing Great Lakes Steel v. Deggendorf, 716 F.2d 1101, 1105 (6th Cir. 1983)). “The court need not, however, accept unwarranted factual inferences.” Id. (citing Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987)).

III. DISCUSSION
*2 Pursuant to Rule 12(b)(6), PM Transport moves to dismiss the Stapletons’ claims against PM Transport for the following reasons: (1) the Stapletons’ claims against PM Transport are barred by the applicable statute of limitations, and the claims do not relate back; and (2) the Stapletons failed to meet the 90-day service deadline found in Federal Rule of Civil Procedure 4(m). [DE 95, at 3-6]. The Court will consider each of PM Transport’s arguments in turn, starting with its argument regarding Rule 4(m).

Pursuant to Rule 4(m), “[i]f a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time.” This “ ‘gives the Court discretion to dismiss the action or allow Plaintiffs additional time’ ” to perfect service. Raniero v. UPS Ground Freight, Inc., No. 16-230-DLB-CJS, 2017 WL 5075245, at *1 (E.D. Ky. Nov. 3, 2017) (quoting Bradford v. Bracken Cty., 767 F. Supp. 2d 740, 753 (2011)). However, this discretion is eliminated if the plaintiff can meet its burden of showing “good cause” for the delay in filing. Id. (citing Habib v. General Motors Corp., 15 F.3d 72, 73 (6th Cir. 1994)). Specifically, Rule 4(m) states, “But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.” Fed. R. Civ. P. 4(m).

Here, the Stapletons concede that they failed to perfect service on PM Transport in the required 90-day period. [DE 96, at 3-4]. PM Transport asserts that the summons was filed after 177 days and served after 206 days of the Stapletons filing the Second Amended Complaint [DE 70], which added PM Transport as a defendant. [DE 95, at 5]. Therefore, unless the Stapletons have satisfied their burden of showing good cause for the delay, the Court has discretion to dismiss this case or allow the delay in perfecting service.

The Stapletons have not satisfied their burden of showing good cause for the delay in perfecting service on PM Transport. While “good cause” is not defined by 4(m), “the Sixth Circuit has required ‘at least excusable neglect’ ” to meet the good cause standard. Bradford, 767 F. Supp. 2d at 754 (citing Stewart v. Tenn. Valley Auth., No. 99-5723, 2000 WL 1785749, at *1 (6th Cir. Nov. 21, 2000)). Neglect is defined by the Sixth Circuit as when “the failure to do something occurred because of a simple, faultless omission to act, or because of a party’s carelessness.” Turner v. City of Taylor, 412 F.3d 629, 650 (6th Cir. 2005) (citation omitted). Whether neglect is considered excusable is an equitable decision that accounts for the “circumstances surrounding the party’s omission” in light of several factors. Id. These factors include “(1) the danger of prejudice to the [non-moving party], (2) the length of delay and its impact on judicial proceedings, (3) the reason for the delay, including whether it was within the reasonable control of the movant and (4) whether the movant acted in good faith.” Bradford, 767 F. Supp. 2d at 754 (citing Turner, 412 F.3d at 650). Further, “[t]he excusable neglect standard has consistently been held to be strict, and can be met only in extraordinary cases.” Turner, 412 F.3d at 650.

“ ‘[S]imple inadvertence or mistake of counsel or ignorance of the rules usually does not suffice’ ” to meet this strict, good cause standard under Rule 4(m). Moncrief v. Stone, 961 F.2d 595, 597 (6th Cir. 1992) (quoting Winters v. Teledyne Movible Offshore, Inc., 776 F.2d 1304, 1305 (5th Cir. 1985)). In DeLong v. Arms, the court explicitly held that “mere oversight” by counsel was not sufficient to constitute good cause. 251 F.R.D. 253, 255 (E.D. Ky. 2008). The Sixth Circuit recognizes that a “counsel’s inadvertent failure … to serve a defendant within the statutory period does not constitute good cause.” Friedman v. Estate of Presser, 929 F.2d 1151, 1157 (6th Cir. 1991) (citations omitted).

*3 In the present case, the Stapletons did not serve PM Transport on time because the Stapletons “mistakenly believed service had already been issued concurrently with the entering of the Order to Amend adding PM Transport as a party.” [DE 96, at 4]. The Stapletons state, “Upon discovering this mistake, Plaintiffs issued a summons and effected service.” Id. The Stapletons further added, “Plaintiffs argue the inadvertent oversight caused no prejudice to PM Transport and, considering that counsel for Costa Farms is the same counsel filing the Motion to Dismiss on behalf of PM Transport, Plaintiffs would argue that PM Transport was on notice.” Id. (citing Delong, 251 F.R.D. at 255). The Stapletons failed to comply with the Rule 4(m) service deadline due to an admitted mistake or oversight, and their mistake or oversight does not rise to the level of good cause. Therefore, the Court will find no good cause is established and may use its discretion to dismiss the Stapletons’ claims against PM Transport under Rule 4(m) without prejudice for failure to effect service.

However, this Court has previously outlined several factors to assist in deciding whether dismissal is appropriate, so the Court will consider those factors before deciding whether to dismiss the claims against PM Transport. These factors also point toward dismissal and include:
(1) whether a significant extension of time was required; (2) whether an extension of time would prejudice the defendant other than the inherent ‘prejudice’ in having to defend the suit; (3) whether the defendant had actual notice of the lawsuit; (4) whether a dismissal without prejudice would substantially prejudice the plaintiff … and (5) whether the plaintiff had made any good faith efforts at effecting proper service of process.
Hatton v. Nationwide Mutual Ins. Co., No. 5:19-cv-020-JMH, 2019 WL 3219149, at *4 (E.D. Ky. July 17, 2019).

While the first factor could be considered moot since service has now been perfected, if an extension had been given, it would have been a significant extension of time. This favors dismissal. Instead of perfecting service within the 90 days as required by Rule 4(m), the Stapletons perfected service 206 days after adding PM Transport as a party. [DE 95, at 5]. In Belhasen v. Hollon, the court found dismissal appropriate where the plaintiff perfected service 180 days after filing the complaint. 17-279-DLB, 2018 WL 2347067, at *3 (E.D. Ky. May 23, 2018); see also Raniero, 2017 WL 5075245, at *1 (finding dismissal appropriate where plaintiff perfected service 254 days after filing the complaint). Therefore, the Stapletons perfecting service 206 days after filing the relevant Second Amended Complaint [DE 70] weighs in favor of dismissal.

Second, if the Court fails to dismiss this case, PM Transport would be prejudiced to an extent greater than the inherent prejudice of having to continue the suit. In Hatton, where the plaintiff missed the 4(m) deadline and would be unable to refile due to the running of the statute of limitations, the court explained, “[T]he determination on dismissal versus permitting late filing may determine whether [defendant] must defend this action at all. This case is not one where dismissal without prejudice will simply allow the [plaintiffs] to refile the action against [defendant].” 2019 WL 3219149, at *4. Under this reasoning, the Hatton Court held that the defendant would be prejudiced if the court did not dismiss the action and found that this weighed in favor of dismissal. Id.

Likewise, allowing late filing in the present case would prejudice PM Transport by requiring it to defend against claims that would likely otherwise be barred from being refiled by the statute of limitations.1 Therefore, the second factor also weighs in favor of dismissal.

Third, even though PM Transport may have had actual notice of the lawsuit through its counsel, this is not enough to prevent dismissal. In Turner, the Sixth Circuit reviewed the district court’s dismissal of plaintiff’s complaint for missing the Rule 4(m) service deadline. 412 F.3d at 650. While the Sixth Circuit recognized that defendant’s attorney had knowledge of the suit prior to the service deadline, the Sixth Circuit still held that the lower court did not abuse its discretion in dismissing plaintiff’s complaint for failure to meet the Rule 4(m) service deadline. Id. It reasoned that “[i]f the magistrate judge was compelled to [allow late service] in these circumstances, then it is unclear how the 120 day service rule ever could be enforced.” Id. Furthermore, when the plaintiff in Raniero argued that dismissal for failing to meet the 4(m) deadline was inappropriate since the “Defendant … ha[d] not been prejudiced by the delay because he was aware of the action despite not having been served,” the Raniero Court held, “Plaintiff’s arguments are unpersuasive and unsupported by established precedent.” 2017 WL 5075245, at *2.

*4 Similarly, even if the Stapletons are correct that PM Transport’s counsel knew of the suit against PM Transport due to counsel also representing Defendant Costa Farms, the decisions in Raniero and Turner implore the Court to dismiss the Stapletons’ claims against PM Transport despite PM Transport having knowledge of the suit. Therefore, the Court is still compelled to dismiss the claims against PM Transport despite its counsel allegedly having knowledge of the claims against PM Transport.

Fourth, the Court should consider whether the Stapletons will be prejudiced by dismissal. While the Stapletons being unable to refile after dismissal due to the running of the statute of limitations is prejudicial to the Stapletons, courts have repeatedly reasoned that “merely being time-barred from refiling an action is not, on its own, necessarily a compelling reason to extend the time to execute service” and have held that a plaintiff’s claim should be, nevertheless, dismissed for failure to perfect service under Rule 4(m). See Bradford, 767 F. Supp. 2d at 757. For example, in Friedman, the Sixth Circuit held, “Despite the severity of such a result, dismissal is nevertheless warranted.” 929 F.2d at 1158. Moreover, when faced with a plaintiff who missed the Rule 4(m) service deadline due to oversight, the Court in Arms likewise held that “the claims against the … Defendants are dismissed” even though plaintiff would be barred from refiling by the statute of limitations. 251 F.R.D. at 255. As stated by the Raniero Court, the fact that the statute of limitation has expired “is insufficient to warrant exercise of the Court’s discretion” to extend the Rule 4(m) service deadline. 2017 WL 5075245, at *2. Further, “even if the [Plaintiffs] would be prejudiced by dismissal … they are largely responsible” for causing such prejudice by missing the service deadline by their own mistake or oversight. Hatton, 2019 WL 3219149, at *5. Therefore, like the previously mentioned courts, this Court is not persuaded to extend the 4(m) deadline, even though the Stapletons would likely be prejudiced to the extent of being prevented from refiling by the statute of limitations.

Fifth, while the Stapletons may have made a good faith effort to perfect service after the Rule 4(m) service deadline had passed, like Hatton, “it does not appear counsel made a good faith effort to ensure that the service would be made within the ninety-day period outlined in Rule 4(m). As a result, the fifth factor weighs in favor of dismissal in this action.” Id. For the foregoing reasons, each of the claims against PM Transport will be dismissed. Since the Court is dismissing the Stapletons’ claims against PM Transport due to the Stapletons’ failure to properly effectuate service on PM Transport, the Court need not consider PM Transport’s arguments regarding whether the Stapletons’ claims against PM Transport are time-barred. Accordingly,

IT IS ORDERED as follows:

(1) Defendant PM Transport of Florida LLC’s (“PM Transport”) Motion to Dismiss Second Amended Complaint [DE 95] is GRANTED;

(2) The Stapletons’ claims against Defendant PM Transport are DISMISSED WITHOUT PREJUDICE; and

(3) This dismissal does not apply to the other Defendants in this matter.

This 31st day of March, 2021.

Signed By:

All Citations
Slip Copy, 2021 WL 1234636

Footnotes

1
Though the applicable statute of limitations period is contested, even the longest period argued of two years has now lapsed.

2021 WL 1237105

United States District Court, N.D. Texas, Dallas Division.
SUSAN HANAN, Plaintiff,
v.
CRETE CARRIER CORPORATION and DORN KNAPP, Defendants.
CIVIL ACTION NO. 3:19-CV-0149-B
|
04/02/2021

JANE J. BOYLE, UNITED STATES DISTRICT JUDGE

MEMORANDUM OPINION AND ORDER
*1 This case was tried before the Court and a jury March 8, 2021, through March 10, 2021. On March 10, 2021, after Plaintiff Susan Hanan rested her case, the Court GRANTED Defendants Crete Carrier Corporation (“Crete”) and Dorn Knapp’s motion for judgment as a matter of law and DISMISSED Hanan’s claims for gross negligence. This Order further explains the Court’s reasoning.

I.
BACKGROUND1
On June 18, 2018, Hanan and Knapp were involved in a motor vehicle accident on Interstate 45 southbound outside of Corsicana, Texas. Doc. 196, Pretrial Order, 3. At the time of the accident, Knapp was a commercial truck driver for Crete and was driving in the course and scope of his employment with Crete. Id. The accident occurred as follows:

The section of the highway relevant to this case normally has three lanes of traffic moving southbound. Hanan was driving her vehicle in the far-left lane and Knapp was operating the commercial truck in the middle lane, to the right of Hanan. Ahead of the vehicles, the highway was reduced to two lanes due to construction, and Hanan’s lane was ending. Hanan claims that “suddenly, her vehicle was violently struck by [Knapp]’s tractor trailer,” after “Knapp changed lanes unsafely into the lane in which [Hanan] was lawfully driving, crashing into [Hanan]’s vehicle at a high rate of speed.” Doc. 4, Pl.’s Orig. Pet., 2. As a result of the collision, Hanan claims to have suffered “severe personal injuries, bodily injury, physical impairment, loss of household services, pain, suffering, and mental anguish.” Id. at 8.

On November 20, 2018, Hanan filed a petition in Texas state court against Crete and Knapp, alleging: (1) negligence and gross negligence against both Defendants; (2) negligence per se against both Defendants; (3) negligent hiring against Crete; (4) negligent training against Crete; (5) negligent supervision, retention, and monitoring against Crete; and (6) negligent entrustment against Crete. Id. at 3–7. In her complaint, Hanan sought damages “in excess of $1,000,000.00[.]” Id. at 8. Defendants removed the case to this Court on January 18, 2019, see generally Doc. 1, Notice of Removal, and a jury trial was held March 8, 2021, through March 10, 2021.

At trial, Hanan presented evidence of Knapp’s negligence in operating the tractor trailer. For example, she showed that Knapp failed to abide by Crete’s training and policies, as well as federal regulations, by failing to use the lane of least resistance at the time of the collision. The “lane of least resistance” is a concept used within the trucking industry to denote the safest highway lane in which to operate a commercial vehicle. Knapp’s own testimony, as well as the testimony of an expert witness suggested that Knapp was not driving in the lane of least resistance when his tractor trailer collided with Hanan’s vehicle. Additionally, Hanan presented the deposition testimony of an eyewitness, Mr. Brown, who testified that Knapp was driving aggressively and “riding on the dotted line” before “he smacked her with the front of his truck.” Doc. 51, Pl.’s App., Ex. B, Dep. of Greg Brown, 20:19–20, 24–25.

*2 Hanan also presented evidence of Crete’s negligence in its hiring, training, supervising, retaining, monitoring, and entrustment of Knapp. For example, Hanan introduced evidence of Knapp’s past acts such as his past accidents, log violations, driver’s-license suspension, termination of employment, and false statements on a previous employment application. And she showed that despite Crete’s knowledge of these acts, Crete did not reject Knapp’s employment application, terminate his employment, or adequately discipline, train, or monitor Knapp. Instead, Crete only required Knapp to complete a driver’s safety course before entrusting him with a commercial vehicle.

After Hanan rested her case, and outside the presence of the jury, Defendants moved for judgment as a matter of law and asked the Court to dismiss Hanan’s claims for gross negligence. The Court heard oral arguments before granting Defendants’ motion and dismissing Hanan’s claims for gross negligence. After closing arguments, the Court read the jury instructions to the jurors, which did not include instructions on gross negligence. See generally Doc. 215, Jury Instructions. The jury ultimately found that Defendants were not negligent in causing the accident and that Hanan was negligent. Doc. 216, Jury Verdict, 10.

II.
LEGAL STANDARD
The Court should grant a motion for judgment as a matter of law when there is no “legally sufficient evidentiary basis” for a reasonable jury to find for the party on an issue on which that party has been fully heard. Fed. R. Civ. P. 50(a)(1); Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 149 (2000). “Fully heard” means a party has rested its case before the jury. Echeverria v. Chevron USA Inc., 391 F.3d 607, 610–11 (5th Cir. 2004). When considering a motion for judgment as a matter of law, “the [C]ourt should review all of the evidence in the record.” Reeves, 530 U.S. at 150. In doing so, the Court should (1) “draw all reasonable inferences in favor of the nonmoving party,” (2) “give credence to…evidence supporting the moving party that is uncontradicted and unimpeached,” and (3) refrain from “mak[ing] credibility determinations or weigh[ing] the evidence.” Id. at 150–51 (quotation marks and citations omitted). The Court should grant the motion if there is no conflict in the evidence. Anthony v. Chevron USA, Inc., 284 F.3d 578, 583 (5th Cir. 2002).

III.
ANALYSIS
To prevail on a gross-negligence claim under Texas law, a plaintiff must prove by clear and convincing evidence that: (1) when “viewed objectively from the actor’s standpoint, the act or omission complained of…involve[d] an extreme degree of risk, considering the probability and magnitude of the potential harm to others[,]” and (2) “the actor [had] actual, subjective awareness of the risk involved, but nevertheless proceed[ed] in conscious indifference to the rights, safety, or welfare of others.” Medina v. Zuniga, 593 S.W.3d 238, 247 (Tex. 2019). Defendants argued that even if the jury found that they were negligent in causing the accident, Hanan could not establish gross negligence as a matter of law because the conduct alleged at trial did not involve an extreme degree of risk. The Court agreed.

The evidence that Hanan presented at trial could not establish gross negligence as a matter of law. This is especially true in light of the Texas Supreme Court’s ruling in Medina v. Zuniga, which Defendants addressed for the first time in their motion for judgment as a matter of law. See 593 S.W.3d at 247. As stated in Medina, “[t]he objective gross-negligence standard must remain functionally distinguishable from ordinary negligence.” Id. at 249. Otherwise, “punitive damages would be routinely available in the most common types of auto accidents.” Id. at 250. Accordingly, “[g]ross negligence can be supported only by an extreme degree of risk, not a remote possibility of injury or even a high probability of minor harm.” Id. at 249 (emphasis in original) (quotation marks and citation omitted). And “an extreme degree of risk is a threshold significantly higher than the objective reasonable person test for negligence,” and must involve “[a]n act or omission that is [not] merely thoughtless, careless, or not inordinately risky[.]” Id. (quotation marks and citation omitted). Ordinary negligence and “garden-variety car accident[s]” thus do not satisfy the standard for gross negligence. Id. at 250; see also Phillips v. Super Servs. Holdings, LLC, 189 F. Supp. 3d 640, 654 (S.D. Tex. 2016) (“[E]vidence of simple negligence is insufficient to prove either the objective or subjective elements of gross negligence.” (citation omitted)).

A. The Evidence Did Not Support Knapp’s Gross Negligence.
*3 Even viewing all evidence in the light most favorable to Hanan, Hanan cannot satisfy the threshold for gross negligence as to Knapp because Knapp’s conduct did not involve an extreme degree of risk. Hanan’s evidence, at most, supports a finding that Knapp committed a negligent lane change. But she did not present evidence of any “aggravating circumstances…required to transform an act of simple negligence into one of gross negligence.” Rayner v. Dillon, 501 S.W.3d 143, 151 (Tex. App.—Texarkana 2016, pet. dism’d).

In Medina, the plaintiff produced evidence from which a reasonable jury “could have found [the defendant-driver] sped through the parking lot and failed to stop or even sufficiently slow down at the parking lot exit” before pulling out of the parking lot and striking the plaintiff’s vehicle. 593 S.W.3d at 248. “Additionally, the jury could have found [the defendant] failed to look both ways before exiting and partially drove on the sidewalk.” Id. (quotations omitted). Taking all of the evidence as true, the Texas Supreme Court found that “no doubt exists that [defendant]’s driving was thoughtless, careless, and risky.” Id. at 249. Nonetheless, the Court found that the defendant’s “clearly negligent conduct” did not “constitute[ ] any evidence satisfying the objective component of gross negligence.” Id.

Indeed, “Texas courts have repeatedly made clear that whether a driver is operating a car or truck, acts that support a finding of ordinary negligence, such as a party’s failure to obey traffic laws, will not support a finding of gross negligence.” Phillips, 189 F. Supp. 3d at 656 (collecting cases); see also McCarty v. Moss, 225 S.W.2d 883, 886 (Tex. Civ. App.—Austin 1949, writ ref’d) (operating a vehicle at an excessive rate of speed does not constitute gross negligence); Rogers v. Blake, 240 S.W.2d 1001, 1004 (Tex. 1951) (conscious failure to stop at a stop sign, standing alone, does not constitute gross negligence); Hylander v. Groendyke Transp., Inc., 732 S.W.2d 692, 695 (Tex. App.—Corpus Christi 1987, writ ref’d n.r.e.) (truck driver’s decision to continue driving with a blown-out tire at night did not constitute gross negligence). Instead, “a driver’s actions must be considerably more extreme, often involving multiple conscious acts or omissions, to support liability.” Phillips, 189 F. Supp. 3d at 656.

Viewing the evidence in the light most favorable to Hanan, the collision between Hanan and Knapp was a “garden-variety car accident” that did not involve the extreme degree of risk required to find gross negligence. See Medina, 593 S.W.3d at 250. Accordingly, Hanan failed to show gross negligence as a matter of law and the Court DISMISSED Hanan’s gross-negligence claim against Knapp.

B. The Evidence Did Not Support Crete’s Gross Negligence.
Similarly, Hanan failed to produce sufficient evidence to prove gross negligence on behalf of Crete. Even viewing all evidence in the light most favorable to Hanan, Crete’s conduct, at most, amounts to ordinary negligence, as it did not involve an extreme degree of risk.

“[A] corporation may not be held liable for punitive damages for gross negligence unless the corporation itself commits gross negligence, authorized or ratified an agent’s gross negligence, was grossly negligent in hiring an unfit agent, or committed gross negligence through the actions or inactions of a vice-principal.” R & R Contractors v. Torres, 88 S.W.3d 685, 708 (Tex. App.—Corpus Christi 2002, no pet.) (citing Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921–22 (Tex. 1998)). However, the standard for gross negligence remains the same. In order to prove gross negligence, Hanan must have proved by clear and convincing evidence that: “(1) viewed objectively from [Crete’s] standpoint, the act or omission [ ] involve[d] an extreme degree of risk…and (2) [Crete had] actual, subjective awareness of the risk involved, but nevertheless proceed[ed] in conscious indifference to the rights, safety, or welfare of others.” Ellender, 968 S.W.2d at 921.

*4 While the evidence of Knapp’s past acts and Crete’s knowledge of said acts supported a finding of ordinary negligence on behalf of Crete, it did not support a finding of gross negligence. Indeed, Hanan did not present evidence of conduct creating “an extreme degree of risk…a threshold significantly higher than” the degree of risk created by ordinary negligence. Medina, 593 S.W.3d at 249 (quotation marks and citation omitted). Again, “evidence of simple negligence is insufficient to prove either the objective or subjective elements of gross negligence.” Phillips, 189 F. Supp. 3d at 654. And while Crete’s conduct may have created a risk of the type of accident that occurred in this case—a “garden-variety car accident,” see Medina, 593 S.W.3d at 250—Hanan did not present evidence of aggravating factors that would elevate the degree risk to an extreme level.

Additionally, Hanan did not present sufficient evidence to satisfy the subjective component of gross negligence. “To establish the subjective component, ‘the plaintiff must show that the defendant knew about the peril, but [its] acts or omissions demonstrate that [it] did not care.’ ” Id. at 248 (quoting Diamond Shamrock Ref. Co. v. Hall, 168 S.W.3d 164, 173 (Tex. 2005)). While the jury may have found that Crete knew or should have known about the risk of Knapp’s ordinary negligence, the evidence did not permit the jury to find by clear and convincing evidence that Crete “did not care” about any extreme risk. See id. (quotation marks and citation omitted). Hanan’s inability to prove the subjective element is an independent basis for granting Defendants’ motion for judgment as a matter of law on Hanan’s gross-negligence claim against Crete.

In order to establish gross negligence, Hanan was required to demonstrate more extreme conduct and “a conscious indifference” on the part of Crete. See, e.g., ADT LLC v. Cap. Connect, Inc., 2017 WL 1426302, at *10 (N.D. Tex. 2017) (gross negligence plausible where defendant company “knew that its sales force was engaging in widespread and egregious misconduct…[and] fail[ed] to point to any evidence in the record that it took adequate measures to mitigate the egregious misdeeds of its sales team”); Ellender, 968 S.W.2d at 922–24 (gross negligence plausible where defendant-petrochemical-company subjected employees to a chemical whose “extreme degree of risk…was common knowledge in the petrochemical industry” and the company “did not warn, monitor or protect” employees against exposure). At trial, Hanan failed to produce evidence that could satisfy either element. Accordingly, the evidence was insufficient to prove Crete’s gross negligence as a matter of law and the Court DISMISSED Hanan’s gross-negligence claim against Crete.

IV.
CONCLUSION
For the foregoing reasons, the Court GRANTED Defendants’ motion for judgment as a matter of law and DISMISSED Hanan’s gross-negligence claims.

SO ORDERED.

SIGNED: April 2, 2021.

JANE J. BOYLE

UNITED STATES DISTRICT JUDGE
All Citations
Slip Copy, 2021 WL 1237105

Footnotes

1
The Court derives the facts from the docket filings as well as the evidence presented at trial.