2021 WL 931178

United States District Court, D. South Carolina, Charleston Division.
Michael Brett Gibson, Plaintiff,
v.
Chad Beach and John Doe, each individually and as employees/agents of Williams Brothers Trucking, Inc.; Rolo Jermaine Foster, individually and as employee/agent of Travis Yost d/b/a TY Transport; Williams Brothers Trucking, Inc.; and Travis Yost d/b/a TY Transport, Defendants.
Civil Action No. 2:20-964-BHH
|
Filed 03/11/2021

ORDER
Bruce H. Hendricks United States District Judge
*1 This matter is before the Court upon the following motions: Plaintiff Michael Brett Gibson’s (“Plaintiff” or “Gibson”) motion for default judgment as to Defendant Rolo Jermaine Foster (“Foster”); Gibson’s motion for a hearing on damages in connection with his motion for default judgment against Foster; and Defendants Chad Beach (“Beach”) and John Doe (“Doe”), individually and as employees/agents of Williams Brothers Trucking, Inc., and Williams Brothers Trucking’s (“Williams Brothers”) (collectively referred to as “the moving Defendants”) motion for summary judgment. For the following reasons, the Court grants the moving Defendants’ motion for summary judgment as to Defendant Beach; denies the moving Defendants’ motion for summary judgment as to Defendants Doe and Williams Brothers; denies Plaintiff’s motion for default judgment as to Defendant Foster without prejudice; and denies Plaintiff’s motion for a hearing without prejudice.

BACKGROUND
Plaintiff initially filed this action on February 25, 2020, in the Colleton County Court of Common Pleas, arising out of a “motor vehicle on bicycle collision” that occurred on February 28, 2017 on U.S. highway 17. (ECF No. 1-1 at 6.) Specifically, Plaintiff alleges that he was lawfully riding his bicycle north on U.S. 17 when “Defendant Foster and/or Doe was not paying attention, not staying in his lane, and/or following too closely, and struck Plaintiff from behind.”1 (ECF No. 1-1 at 6.) Plaintiff alleges that Defendants Foster and Doe (“Defendant drivers”) were both driving large commercial trucks north on U.S. 17, on behalf of Defendants Travis Yost d/b/a TY Transport (“TY Transport”) and Williams Brothers, respectively, and that both Foster and Doe left the scene of the accident. Importantly, despite alleging that Foster “and/or” Doe struck him, nowhere does Plaintiff specifically allege that more than one truck struck him.2 As to Defendant Beach, Plaintiff alleges that he was manager or general manager for Williams Brothers and was responsible for driver screening, hiring, supervising, and/or safety with respect to Defendant Doe. In his complaint, Plaintiff alleges claims for negligence and gross negligence on behalf of all Defendants.

*2 On April 17, 2020, an entry of default was entered as to Defendant Foster, and on May 14, 2020, Defendant TY Transport was dismissed with prejudice pursuant to a filed stipulation of dismissal. (ECF Nos. 13 and 14, respectively.) Thereafter, on June 9, 2020, Plaintiff filed a motion for default judgment as to Defendant Foster. Defendants Beach, Doe, and Williams Brothers filed their motion for summary judgment on August 27, 2020, and Plaintiff filed a motion for a hearing on his motion for default judgment on September 3, 2020.

STANDARD OF REVIEW
A court shall grant summary judgment if a party shows that there is no genuine dispute as to any material fact and the party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The judge is not to weigh the evidence, but rather to determine if there is a genuine issue of fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). If no material factual disputes remain, then summary judgment should be granted against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which the party bears the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All evidence should be viewed in the light most favorable to the non-moving party. See Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990).

DISCUSSION

I. The Moving Defendants’ Motion for Summary Judgment
In their motion for summary judgment, the moving Defendants first assert that Plaintiff’s complaint improperly alleges alternative material facts and is based on nothing more than mere speculation because “Plaintiff’s shotgun approach in the multiple law suits filed against six trucking companies as a result of one accident involving one truck amounts to a guessing game at best.” (ECF No. 22 at 8.) Next, the moving Defendants allege that the facts and evidence confirm Williams Brothers’ lack of involvement in the accident as a matter of law. Third, the moving Defendants assert that the Clerk’s entry of default as to Defendant Foster mandates summary judgment in their favor because it eliminates any issue of liability, insofar as Defendant Foster is deemed to have admitted the factual allegations of the complaint, i.e., that he struck Plaintiff. Lastly, the moving Defendants allege that Beach is an improper party to this action because Plaintiff does not allege any negligence on the part of Beach outside the course and scope of his employment with Williams Brothers.

In response to the moving Defendants’ motion, Plaintiff asserts that summary judgment is premature because discovery is ongoing. In addition, Plaintiff asserts that he does not improperly allege alternative material facts and that, regardless, the law permits him to plead alternative theories and facts. Next, Plaintiff asserts that a genuine issue of material fact exists as to which truck struck Plaintiff. Plaintiff also asserts that the entry of default against Defendant Foster does not eliminate the moving Defendants’ potential liability because (a) no judgment as been entered against Foster and (b) any judgment that may be entered would not be a decision on the merits. Finally, Plaintiff asserts that Defendant Beach is a proper party because under South Carolina law a manager can be individually liable.

After review, the Court first agrees with the moving Defendants that Defendant Beach is entitled to summary judgment, not based on whether South Carolina law permits a manager to be individually liable, but rather based on the simple fact that Plaintiff has not pointed to even a scintilla of evidence to show that Defendant Beach’s negligent conduct in some way caused Plaintiff’s injuries, i.e., Plaintiff has not pointed to any evidence to show that Defendant Beach negligently hired, retained, or trained the driver of the Williams Brothers truck, and that this negligence proximately caused the accident at issue. Instead, Plaintiff merely refers to the allegations of his complaint, asserting that Beach is a general manager for Williams Brothers, whose driver may have struck Plaintiff. Even viewing these allegations in the light most favorable to Plaintiff and assuming their veracity, however, Plaintiff has not pointed to any evidence that creates a genuine issue of material fact as to Defendant’s Beach’s liability. Accordingly, the Court grants the moving Defendants’ motion for summary judgment as to Defendant Beach.

*3 Next, as to the remainder of the moving Defendants’ arguments, the Court is not convinced. Although the moving Defendants are correct that Plaintiff has pleaded alternative facts, the Court finds nothing improper about this, at least at this stage in the litigation. Moreover, as to Defendants’ assertion that the evidence confirms Williams Brothers’ lack of involvement, the Court agrees with Plaintiff that the evidence actually presents a genuine issue of material fact. While the moving Defendants are correct that certain evidence appears to indicate that a red-cabbed flatbed trailer struck Plaintiff–not the Williams Brothers white-cabbed box trailer–it simply cannot be said that no other evidence calls into question the involvement of the Williams Brothers truck. For example, an investigating officer identified the Williams Brothers box truck as being at the scene, and a different eyewitness indicated that a box truck (like the Williams Brothers truck), rather than a flatbed, struck Plaintiff. While this eyewitness also indicated that the box truck had lights along the upper back corners of the trailer and running lights down the side (and the Williams Brothers truck does not have these lights but does have reflective tape at the upper sides), it is not the Court’s role to weigh the evidence or determine the accuracy and/or credibility of a witnesses’ account. Ultimately, because the Court finds that the record, at least as it currently stands, contains sufficient evidence to create a genuine issue of material fact as to the involvement of the Williams Brothers’ truck, the Court denies the moving Defendants’ motion for summary judgment as to Defendants Williams Brothers and Doe.

Lastly, the Court is not convinced by the moving Defendants’ argument that the entry of default against Defendant Foster mandates the entry of summary judgment against the remaining Defendants. As Plaintiff points out, no judgment has been entered and Defendant Foster still could appear in this action and move to set aside the entry of default. Accordingly, the Court finds that the moving Defendants are not entitled to summary judgment based on the entry of default against Defendant Foster.

II. Plaintiff’s Motion for Default Judgment against Foster and Motion for Hearing
After review, the Court agrees with the remaining Defendants that it would be premature for the Court to hear and/or grant Plaintiff’s motion for default judgment as to Defendant Foster without first allowing Plaintiff’s claims against the remaining Defendants to proceed to a jury trial. See Fed. R. Civ. P. 55(b)(2). Stated plainly, Plaintiff does not allege that two trucks struck him; rather, he alleges that one did. If a jury were to find that the Williams Brothers truck did not strike Plaintiff, then Plaintiff could proceed to a damages hearing against Defendant Foster. If, on the other hand, a jury were to determine that the Williams Brothers truck did strike Plaintiff, then it would be difficult if not impossible for Plaintiff to establish the truth of the allegations as to Defendant Foster in connection with any default judgment hearing. See Fed. R. Civ. P. 55(b)(2)(C). Of course, this all depends on the outcome of the proceedings against the remaining Defendants. Therefore, at this time, the Court denies without prejudice both Plaintiff’s motion for default judgment and Plaintiff’s motion for a hearing.

CONCLUSION
Based on the foregoing, Plaintiff’s motion for default judgment and Plaintiff’s motion for a hearing (ECF Nos. 17 and 23, respectively) are denied without prejudice. Defendants’ motion for summary judgment (ECF No. 22) is granted in part and denied in part. Specifically, the Court grants the motion as to Defendant Beach but denies the motion as to Defendants Doe and Williams Brothers.

IT IS SO ORDERED.

All Citations
Slip Copy, 2021 WL 931178

Footnotes

1
Plaintiff previously filed suit on May 11, 2017, in the Charleston Count Court of Common Pleas against “John/Jane Doe, individually and as Employee/Agent of Unknown Corporation; and Unknown Corporation,” No. 2017-CP-10-2334, and the complaint in this action was amended to include the following Defendants: Rolo Jermaine Foster, as employee/agent of Unknown Corporation; Unknown Corporation; John Doe, as employee/agent of Travis Yost d/b/a T.Y. Transport; Travis Yost d/b/a T.Y. Transport; John Doe, as employee/agent of D. Mosley Trucking, Inc.; D. Mosley Trucking, Inc.; John Doe, as employee/agent of D.C. Express, Inc. d/b/a D.C. Express; D.C. Express, Inc. d/b/a D.C. Express; John Doe, as employee/agent of Nancy Karina Pimental Salazar d/b/a Elvis Xpress Freight; Nancy Karina Pimental Salazar d/b/a Elvis Xpress Freight; John Doe, as employee/agent of Williams Brothers Trucking, Inc.; and Williams Brothers Trucking, Inc.” This action was dismissed without prejudice on March 21, 2019.
Plaintiff also filed suit on June 12, 2018, in the Charleston County Court of Common Pleas against Chris Lee Wilson, individually and as employee/agent of Jordan Carriers, Inc., and Jordan Carriers, Inc., No. 2018-CP-10-2964. This suit was dismissed with prejudice on April 13, 2020.

2
As indicated above, Plaintiff’s complaint refers to the accident as a “motor vehicle on bicycle collision,” and he does not assert that more than one vehicle struck him.

2021 WL 966036

United States District Court, W.D. Oklahoma.
LARESIA D. SYKES, as Special Administrator of the Estate of DeShawn A. Sykes, Plaintiff,
v.
NATHAN G. BERGERHOUSE et al., Defendants.
Case No. CIV-20-333-G
|
Filed 03/15/2021

ORDER
CHARLES B. GOODWIN United States District Judge
*1 Now before the Court is the Motion for Judgment on the Pleadings (Doc. No. 13) filed by Defendant C.R. England, Inc. (“C.R. England”). Plaintiff Laresia D. Sykes, as Special Administrator of the Estate of DeShawn A. Sykes, has responded (Doc. No. 19), and C.R. England has replied (Doc. No. 20).

I. Background
In April 2020, Plaintiff filed her Complaint (Doc. No. 1-10) in state court, bringing claims against C.R. England and Nathan G. Bergerhouse (“Bergerhouse”). Defendants jointly filed an Answer (Doc. No. 12-1). The case was then removed to this Court on the basis of diversity jurisdiction (Doc. No. 12).

The Complaint alleges that on or about December 20, 2017, in Canadian County, Oklahoma, Plaintiff’s spouse was operating a vehicle that was struck by a commercial motor vehicle driven by Bergerhouse. See Compl. ¶ 1. The vehicle driven by Bergerhouse was owned by C.R. England, and Bergerhouse “was acting within the course and scope” of his employment with C.R. England, and with the permission of C.R. England, when the accident occurred. Id. ¶¶ 4, 6, 7; Answer ¶¶ 4, 6, 7; see also id. ¶ 26 (“Agency is not in dispute.”).

Plaintiff asserts that C.R. England is responsible for the negligence of Bergerhouse under a theory of respondeat superior. See Compl. ¶ 8. Plaintiff also asserts that C.R. England “negligently entrusted” Bergerhouse with its commercial motor vehicle and that C.R. England “negligently hired, trained, supervised, and retained” Bergerhouse. Id. ¶¶ 9, 10. Plaintiff seeks damages for “bodily injuries,” “medical expenses,” “pain and suffering,” and “property damages.” Id. ¶ 12. Plaintiff additionally seeks an award of punitive damages against each Defendant. See id. ¶¶ 13, 14, 15.

II. Standard of Review
Rule 12(c) of the Federal Rules of Civil Procedure permits a party to move for judgment on the pleadings “[a]fter the pleadings are closed—but early enough not to delay trial.” Fed. R. Civ. P. 12(c). The Court evaluates the motion under the familiar standard applied to Rule 12(b)(6) motions. See Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1160 (10th Cir. 2000) (citing Mock v. T.G. & Y. Stores Co., 971 F.2d 522, 528 (10th Cir. 1992)). Accordingly, the Court “accept[s] all facts pleaded by the non-moving party as true and grant[s] all reasonable inferences from the pleadings in favor of the same.” Adams v. Jones, 577 F. App’x 778, 782 (10th Cir. 2014) (internal quotation marks omitted). “[T]o survive judgment on the pleadings, [the plaintiff] must allege ‘a claim to relief that is plausible on its face.’ ” Sanchez v. U.S. Dep’t of Energy, 870 F.3d 1185, 1199 (10th Cir. 2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “To determine whether the claim to relief is ‘plausible on its face,’ we examine the elements of the particular claim and review whether the plaintiff has pleaded factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (internal quotation marks omitted).

III. Discussion
*2 C.R. England seeks Rule 12(c) relief with respect to Plaintiff’s direct-negligence claims—i.e., her claims for negligent hiring, training, supervision, and retention.1

A. Whether the Direct-Negligence Claims Are Viable Under Oklahoma Law
C.R. England argues that Plaintiff’s direct-negligence claims are not viable under Oklahoma law. See Def.’s Mot. at 1-19; see also BancOklahoma Mortg. Corp. v. Cap. Title Co., 194 F.3d 1089, 1103 (10th Cir. 1999) (“A federal court sitting in diversity applies the substantive law … of the forum state.” (internal quotation marks omitted)). In support, C.R. England cites Jordan v. Cates, a case in which a store customer who was involved in a physical altercation with a store employee claimed that the store was liable for the alleged battery “both under the doctrine of respondeat superior and for the negligent hiring and retention of” the employee. See Jordan, 935 P.2d 289, 291 (Okla. 1997). The Oklahoma Supreme Court affirmed the trial court’s grant of summary judgment to the store on the issue of negligent hiring and retention, holding: “[T]he negligent-hiring theory imposes no additional liability on the employer where it stipulates its employee was acting within the scope of his employment when the harm-dealing altercation occurred.” Id. The appellate court explained that “where the employer stipulates that liability, if any, would be under the respondeat superior doctrine,” imposing liability on the employer under any other theory would be “unnecessary and superfluous.” Id. at 293; accord N.H. v. Presbyterian Church (U.S.A.), 998 P.2d 592, 600 (Okla. 1999) (noting that “[e]mployers may be held liable for negligence in hiring, supervising or retaining an employee” “if vicarious liability is not established”).

“Federal and state courts have applied [Jordan’s] pronouncement” and have disallowed such direct-negligence claims “ ‘with nearly unanimous results.’ ” Lyman v. Ayers, No. 16-CV-161-GKF-TLW, 2016 WL 9223837, at *1 (N.D. Okla. Sept. 6, 2016) (quoting Beaber v. Stevens Transp., Inc., No. CIV-15-382-R, 2015 WL 8074312, at *1 (W.D. Okla. Dec. 4, 2015) (collecting cases)). And “the federal courts in Oklahoma generally have extended Jordan to negligence claims.” Cardenas v. Ori, No. CIV-14-386-R, 2015 WL 2213510, at *2 (W.D. Okla. May 11, 2015).

Plaintiff objects, however, that these many decisions have been reading Jordan too broadly. According to Plaintiff, the holding of Jordan “is limited to cases involving an intentional tort or battery committed by an employee.” Pl.’s Resp. at 13. Plaintiff asserts that the “chronic[ ] incorrect[ness]” of the courts’ “misinterpretation” is clear from a 2004 decision of this Court and a 2018 decision of the Oklahoma Supreme Court. See id. at 11-16, 20-21 (citing Ramiro R. v. J.B. Hunt Transp. Servs., Inc., No. CIV-04-1033-M (W.D. Okla. Apr. 8, 2005) (order); Fox v. Mize, 428 P.3d 314 (Okla. 2018)).

The cited order in Ramiro R. “conclude[s] that the language in Jordan’s syllabus referencing the underlying battery demonstrates the Oklahoma Supreme Court’s intention to limit its holding to only intentional torts.” Payne v. Sesley Trucking, LLC, No. CIV-16-1235-F, 2017 WL 11139577, at *4 n.8 (W.D. Okla. Oct. 24, 2017). That order is an outlier, however, and its reasoning since has been rejected by this Court. Id. (citing cases). The undersigned agrees with the approach of these later decisions because, while the Jordan Court “clearly limited its holding to those situations where the employer stipulates that liability, if any, would be under the respondeat superior doctrine, it did not simultaneously limit its holding only to intentional torts.” Id. (alteration and internal quotation marks omitted); accord Avery v. Roadrunner Transp. Servs., Inc., No. CIV-11-1203-D, 2012 WL 6016899, at *3 (W.D. Okla. Dec. 3, 2012) (“[T]he underlying rationale of Jordan … applies equally well to negligence actions as it does to cases involving intentional torts.”); Cardenas, 2015 WL 2213510, at *2 (“[T]he Court cannot conceive of the nature of the tort as dispositive. There is no logic to the notion that an employer would be directly liable for negligent hiring if its employee acted negligently, but not be liable if it negligently hires a person with a lengthy history of violence and the employee assaults a customer.”).

*3 In Fox, the Oklahoma Supreme Court “concluded that negligent entrustment cases are separate and distinct from respondeat superior negligence liability” and, thus, an “ ‘employer’s stipulation that an accident occurred during the course and scope of employment does not, as a matter of law, bar a negligent entrustment claim.’ ” Sinclair v. Hembree & Hodgson Constr., L.L.C., No. CIV-18-938-D, 2020 WL 3965010, at *3 n.4 (W.D. Okla. July 13, 2020) (quoting Fox, 428 P.3d at 322). According to Plaintiff, the state-court decision—which includes a footnote stating that “ ‘for now, the holding in Jordan is limited to its facts’ ”—likewise demonstrates that the holding relied upon by C.R. England “does not apply in … an ordinary negligence case.” Pl.’s Resp. at 13-14 (quoting Fox, 428 P.3d at 322 n.12).

Judges of this Court, however, have specifically rejected the proposition that Fox should be applied to limit the reach of Jordan or to preclude the entry of judgment on direct-negligence claims such as those raised here. In Sinclair, for example, Judge DiGiusti granted summary judgment to the defendant-employer on the plaintiff’s negligent hiring, training, and supervision claims in light of the defendant-employer’s concession that its employee “was acting within the scope of his employment”:
The court in Fox did not decide whether a negligent hiring claim should be treated differently than a negligent entrustment claim because that issue was not before it. Further, Jordan v. Cates has not been overruled and remains good law, and the Court must follow it. See, e.g., Annese v. U.S. Xpress, Inc., No. CIV-17-655-C, 2019 WL 1246207, at *3 (W.D. Okla. Mar. 18, 2019) (dismissing the plaintiff’s negligent hiring claim because Jordan has not been overruled); Thurmond v. CRST Expedited, Inc., No. CIV-18-1142-R, 2019 WL 6311996, at *1 (W.D. Okla. Nov. 25, 2019) (maintaining the prior status of the law that a negligent hiring claim is superfluous where an employer stipulates that its employee was acting within the scope of employment at the time of the accident).
Sinclair, 2020 WL 3965010, at *3 & n.4. Similarly, Judge Russell found that “Jordan controls” and granted judgment on the pleadings to a trucking company where, as here, the company sought judgment “only as to the negligent hiring, retention, training and supervision claims” and had “stipulated to an agency relationship” with the truck driver. Njugana v. C.R. England, Inc., No. CIV-19-379-R, 2020 WL 6151567, at *3 (W.D. Okla. Oct. 20, 2020).

The undersigned agrees that Jordan remains viable. See id. (“Various judges in this district have reiterated the Court’s obligation to follow Jordan when it is applicable, and this Court must do the same.” (citing cases)). Accordingly, in light of C.R. England’s stipulation as to the employment and agency of its driver, Plaintiff’s direct-negligence claims do not plausibly show an entitlement to relief against C.R. England under Oklahoma law. See Jordan, 935 P.2d at 291; Payne, 2017 WL 11139577, at *4 n.8; Sinclair, 2020 WL 3965010, at *3 & n.4; see also Sanchez, 870 F.3d at 1199; Fed. R. Civ. P. 12(c).

B. Whether the Direct-Negligence Claims May Be Pursued in the Alternative
Plaintiff argues that she is “entitled to pursue multiple, alternative theories of recovery” pursuant to Rule 8 of the Federal Rules of Civil Procedure. Pl.’s Resp. at 17 (citing Fed. R. Civ. P. 8(d)(2), (d)(3), (e)). But Rule 8 merely allows a plaintiff to initially plead alternative “statements of a claim”; “[t]he Court … is permitted to remove those claims that are superfluous in accordance with Oklahoma law as set forth above.” Fed. R. Civ. P. 8(d)(2); Cardenas, 2015 WL 2213510, at *3.

C. Whether the Direct-Negligence Claims Are “Subcategory” Elements of Plaintiff’s Negligent-Entrustment Claim
*4 Finally, Plaintiff argues that her claims for negligent hiring, training, supervision, and retention are “essentially subcategory elements” of her negligent-entrustment claim. Pl.’s Resp. at 18-20 (citing Fox, 428 P.3d at 319-20). Plaintiff’s point here appears to be that she is entitled to discovery regarding C.R. England’s hiring, training, and so forth because C.R. England’s deficiencies in these areas will be relevant to the pending negligent-entrustment claim. See id. at 20.

Absent any live discovery dispute, the Court declines to address the relevance of these topics to the claims that remain at issue.

CONCLUSION
For the reasons set forth above, Defendant C.R. England, Inc.’s Motion for Judgment on the Pleadings (Doc. No. 13) is GRANTED. Judgment on Plaintiff’s claims against this Defendant for negligent hiring, training, supervision, and retention shall be entered in Defendant’s favor at the conclusion of this litigation.

IT IS SO ORDERED this 15th day of March, 2021.

All Citations
Slip Copy, 2021 WL 966036

Footnotes

1
C.R. England does not seek dismissal of Plaintiff’s claim for negligence under a respondeat superior theory or of Plaintiff’s claim of negligent entrustment. See Def.’s Mot. at 1 n.1.