2021 WL 5326433

United States District Court, S.D. New York.
ARMANI PIZARRO, Plaintiffs,
v.
LANGER TRANSPORTATION CORPORATION and CHERNOR BAH, Defendant.
21 Civ. 5439 (ER)
|
Filed 11/16/2021

OPINION AND ORDER
Edgardo Ramos, U.S.D.J.
*1 Armani Pizarro brought this action in state court against Chernor Bah and his employer, Langer Transport Corp. (collectively, “Defendants”), alleging that he was seriously injured in an automobile accident caused by Bah. Defendants removed this action to federal court. Before the Court is Pizarro’s motion to remand the case to state court. For the reasons discussed below, the motion to remand is GRANTED.

I. Background
a. Motor Vehicle Accident
This case arises from a December 23, 2019 motor vehicle accident in Schenectady, New York. Doc. 3-1 at p. 2. Pizarro, a resident of New York, sustained severe injuries after being rear-ended by a tractor-trailer driven by Bah, a resident of New Jersey.1 Id. Pizarro was intubated at the accident scene and suffered spinal and rib fractures, a subdural hematoma, severe traumatic brain injury, and a splenic laceration. Doc 3-1 at p. 12; Doc 3-4 at ¶ 18. Pizarro was hospitalized for twelve days and then placed in an intensive rehabilitation program from January 4, 2020 to January 17, 2020. Doc 3-1 at p. 12. Pizarro alleges that he endured pain and suffering which continues to date, including loss of life enjoyment and lost earnings. Doc. 3-4 at ¶ 20. Pizarro further alleges that Langer was grossly negligent in hiring Bah based on Bah’s history of driving infractions, and in permitting Bah to operate a tractor-trailer without a valid commercial driver’s license. Doc. 3-4 at ¶¶ 30, 31, 32. In February 2020, prior to the filing of any suit, the Morelli Law Firm, on behalf of Pizarro, contacted Mr. Laird, then-counsel for Defendants, in order to communicate the severity of Pizarro’s injuries. Doc. 3-2, ¶ 6.

b. State Court Action
On July 14, 2020, Pizarro commenced an action in the Supreme Court of New York, New York County, alleging negligence on the part of Defendants, and seeking economic, compensatory, and punitive damages. Doc. 3-4, ¶¶ 18, 22, 27, 33. On August 21, 2020, Mr. Laird filed separate answers on behalf of Defendants. Doc. 3-6. Neither answer proffered an affirmative defense of improper service of process, nor did either Defendant, at any subsequent point, move for the dismissal of the state court action based on improper service of the summons and complaint. Id.; Doc. 3-1 at p. 7.

On September 3, 2020, Defendants moved for a change of venue from New York County to Schenectady County, and on October 15, 2020, Pizarro opposed the motion. Doc. 3-8; Doc. 3-9. On March 24, 2021, while the motion to transfer venue was pending, Pizarro sent Defendants over 1,000 pages of medical records documenting his post-accident care. Doc. 3-11; Doc. 3-1 at p. 12. On June 16, 2021, the Supreme Court denied Defendants’ motion for change of venue. Doc. 3-12. That same day, the Supreme Court consented to Defendants’ replacement of counsel. Doc. 3-13. The following day, June 17, 2021, Pizarro contacted Defendants’ new counsel via telephone to explain the nature and extent of Pizarro’s injuries from the accident. Doc. 3-2, ¶ 22.

c. Removal
*2 Five days later, on June 22, 2021, Defendants, now represented by new counsel, removed the case to the United States District Court for the Southern District of New York. Doc. 3-14. Defendants’ basis for removal is diversity of citizenship pursuant to 28 U.S.C. § 1332. Id. at ¶ 12. On July 16, 2021, Pizarro filed a motion to remand the case to state court, alleging Defendants’ notice of removal was untimely, as well as jurisdictionally and procedurally defective. Doc. 3-1.

II. Legal Standards
“[A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” 28 U.S.C. § 1441(a). District courts have original jurisdiction over cases in which the parties are “citizens of different states,” and where the amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a). There must be complete diversity, meaning that every plaintiff must be diverse from every defendant. Strawbridge v. Curtiss, 7 U.S. 267 (1806). Removal also must be timely pursuant to 28 U.S.C. § 1446(b). On a motion to remand, “the defendant bears the burden of demonstrating the propriety of removal.” Cal. Pub. Emps.’ Ret. Sys. v. WorldCom, Inc., 368 F.3d 86, 100 (2d Cir. 2004) (citation omitted).

Further, “removal statutes are to be strictly construed against removal and all doubts should be resolved in favor of remand.” Am. Standard, Inc. v. Oakfabco Inc., 498 F. Supp 2d 711, 715 (S.D.N.Y. 2007) (citations omitted). The Second Circuit has explained this is based on “… congressional intent to restrict federal court jurisdiction as well as the importance of preserving the independence of state governments.” Lupo v. Human Affairs Int’l. Inc., 28 F.3d 269, 274 (2d Cir.1994).

a. Timeliness Under 28 U.S.C. § 1446
Section 1446(b) of Title 28 requires a notice of removal to be filed within 30 days of defendant’s receipt of the initial pleading in State Court. 28 U.S.C. § 1446(b)(1). However, if the allegations in the initial pleading are insufficient to place the defendant on notice of removability, a notice of removal may be filed within 30 days of defendant’s receipt of “… an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.” 28 U.S.C. § 1446(b)(3).

In Moltner v. Starbucks Coffee Co., the Second Circuit declared: “we join the Eighth Circuit, as well as all of the district courts in this Circuit… in holding that the removal clock does not start to run until the plaintiff serves the defendant with a paper that explicitly specifies the amount of monetary damages sought.” 624 F.3d 34, 38 (2d Cir. 2010). The Second Circuit later clarified the Moltner holding in Cutrone v. Mortgage Electronic Registrations Systems, Inc., holding that “[u]nder the Moltner standard, defendants must still ‘apply a reasonable amount of intelligence in ascertaining removability.’ ” 749 F.3d 137, 143 (2d Cir. 2014) (citing Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 206 (2d Cir. 2001)). The Second Circuit goes on, “[h]owever, defendants have no independent duty to investigate whether a case is removable. Id. (citing Whitaker, 261 F.3d at 206 (observing that the ‘reasonable amount of intelligence’ standard ‘does not require a defendant to look beyond the initial pleading for facts giving rise to removability’)).” Thus, the removal clock of 28 U.S.C. § 1446(b) begins to run when plaintiff “provides facts explicitly establishing removability or alleges sufficient information for the defendant to ascertain removability.” 749 F.3d 137, 145 (2d Cir. 2014).

*3 While removability is typically ascertained by the defendant from pleadings, it may also be ascertained by the defendant based on some “other paper.” § 1446(b)(3). See Moltner v. Starbucks Coffee Company, 8-CV-9257, 2009 WL 510879 at *2 (S.D.N.Y. Feb. 27, 2009) (holding that “other paper” need not be a formal pleading or notice, and may be in the form of a letter); In re Methyl Tertiary Butyl Ether Products Liability Litigation, (noting that “the types of document [constituting an ‘other paper’] can be anything from a deposition, to an amended pleading, to a letter between the parties.”). 399 F.Supp 2d 340, 348 n. 47 (S.D.N.Y. 2005).

b. Complete Diversity
Where diversity of citizenship is the basis for removal, diversity must exist not only at the time the action was filed in state court, but also at the time the case is removed to federal court. See Steven v. Nichols, 130 U.S. 230, 231 (1889); United Food and Commercial Workers Union, Local 919 v. Center Mark Props. Meriden Square Inc., 30 F.3d 298, 301 (2d Cir. 1994); Webb v. Harrison, 14-CV-5366, 2015 WL 500179, at *1 (S.D.N.Y. Feb. 5, 2015). The purpose of this requirement is “to prevent a nondiverse defendant from acquiring a new domicile after the commencement of the state suit and then removing on the basis of the newly created diversity of citizenship.” See generally 14C Charles Alan Wright & Arthur R. Miller, Federal Civil Practice and Procedure § 3723 (Rev. 4th ed.). Furthermore, when diversity of citizenship is the basis for removal, “the party invoking jurisdiction bears ‘the burden of establishing that the requirements for diversity jurisdiction [are] met.’ ” McGrath v. Indus. Waste Techs., 20-CV-2858, 2021 WL 791537, at *4 (S.D.N.Y. Feb. 26, 2021) (quoting Mechlenbacher v. Akzo Nobel Salt, Inc., 216 F.3d 291, 296 (2d Cir. 2000)).

For the purposes of diversity jurisdiction, citizenship is determined by a person’s domicile. See Palazzo ex rel. Delmage v. Corio, 232 F.3d 38, 42 (2d Cir. 2000). Domicile is the place where a person has their true, fixed home and where they intend to remain. See Linardos v. Fortuna, 157 F.3d 945, 948 (2d Cir. 1998). Because a person can have only one domicile at a time, a party alleging a change in domicile has the burden of proving, by clear and convincing evidence, that domicile has changed. See Gutierrex v. Fox, 141 F.3d 425, 427 (2d Cir. 1998) (citations omitted).

In analyzing whether subject matter jurisdiction exists, the Court is permitted to look to materials outside of the pleadings. See Bldg. & Constr. Trades Council of Buffalo, N.Y. & Vicinity v. Downtown Dev., Inc., 448 F.3d 138, 150 (2d Cir. 2006) (citing Luckett v. Bure, 290 F. 3d 493, 496-97 (2d Cir. 2002). “Such materials can include documents appended to a notice of removal … that convey information essential to the court’s jurisdictional analysis.” Romano v. Kazacos, 609 F.3d 512, 520 (2d Cir. 2010).

c. Filing
Section 1446(a) of Title 28 provides a statutory filing requirement for the removal of civil actions. Specifically, § 1446(a) requires a defendant seeking removal to file with the district court “… a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.”

However, the failure to comply with this procedural rule does not constitute a jurisdictional defect; courts have made a distinction between a fundamental defect, which cannot be untimely amended, and a defect which is merely technical in nature, which can be amended after the 30-day period has run. See Fulfree v. Manchester, 95-CV-7723, 1996 U.S. Dist. LEXIS 1, at *4 (S.D.N.Y. Jan. 2, 1996) (citing CBS Inc. v. Snyder, 762 F. Supp. 71, 75 & n.5 (S.D.N.Y. 1991)); see generally 14C Charles Alan Wright & Arthur R. Miller, Federal Civil Practice and Procedure § 3733 (Rev. 4th ed.). While the former is grounds for remand, the latter, standing alone, is not. Id.

III. Discussion
a. Defendants’ Removal was Untimely
*4 Section 1446(b) requires defendants to remove within 30 days of receipt of the complaint or receipt of some “other paper” from which removability may be ascertained. §§ 1446(b)(1) and 1446(b)(3). Defendants cite Moltner for the rule that plaintiff must expressly state that damages will exceed the jurisdictional threshold in order to make the case removable on its face and start the removal clock. Doc. 9 at p.9-10. Accordingly, Defendants argue that because Pizarro never explicitly stated that damages would exceed the jurisdictional threshold of $75,000, the 30-day removal clock was never initiated and thus their removal was timely under § 1446(b). Doc. 9 at p. 13.

Pizarro argues, correctly, that the Moltner standard was subsequently clarified by the Second Circuit such that even after Moltner, “defendants must still ‘apply a reasonable amount of intelligence in ascertaining removability.’ ” Cutrone v. Mortgage Electronic Registrations Systems, Inc., 749 F.3d 137, 143 (2d Cir. 2014) (citing Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 206 (2d Cir. 2001). Accordingly, Pizarro contends, Defendants rely on an erroneously narrow interpretation of the Second Circuit law. Doc. 13, at p. 3. The Court agrees, and finds that Defendants had sufficient information about Pizarro’s injuries and post-accident care by no later than March 24, 2021 to have intelligently ascertained that the case was removable. Therefore, the removal clock started on March 24, 2021, and Defendants’ June 22, 2021 removal was untimely.

Pizarro’s July 14, 2020 complaint sought compensatory damages for “traumatic brain injury, spinal fractures and rib fractures.” Doc. 3-4 at ¶ 18. It also stated that Pizarro “was caused to endure pain and suffering continuing to date … was caused to sustain loss of enjoyment of life, [and] was caused to endure lost earnings …” Id. at ¶ 20. In addition, the complaint alleged Pizarro had suffered economic loss in excess of “basic economic loss” as defined in Section 5102 of the Insurance Law of the State of New York. Id. at 18. Section 5102 of the Insurance Law of the State of New York defines “basic economic loss” as loss up to $50,000. Id.; Art. 51, Ch. 28, § 5102. The complaint also sought punitive damages as a result of gross negligence on the part of Defendants. Doc. 3-4 at ¶¶ 32, 33. Arguably, therefore, a defendant applying a reasonable amount of intelligence in reading the complaint could have concluded that the case was removable at the time of its filing because the damages would exceed the jurisdictional threshold.

Moreover, even if the complaint did not sufficiently place Defendants on notice of removability, “other paper[s]”, in combination with the complaint, were sufficient to do so. Specifically, on October 15, 2020, Pizarro opposed Defendants’ motion to change venue. Doc. 3-9. In its opposition, Pizarro listed a number of doctors available to testify about the treatment he “… has had to, and will have to undergo for [his] injuries.” Doc. 3-9 at ¶ 52a. Included is Pizarro’s treating primary care doctor, psychiatrist, orthopedist, physical therapist, eye doctor, and orthodontist. Id. at ¶¶ 52(b)-(g). It is similarly arguable, therefore, that at that point, a defendant applying a reasonable amount of intelligence to this “other paper” in combination with the complaint, could have concluded that the amount of damages would exceed the jurisdictional threshold.

At base, however, Defendants were on notice of the removability of this case no later than March 24, 2021, when Pizarro sent Defendants more than 1,000 pages of Pizarro’s post-accident medical records. Doc. 3-11; Doc. 3-1, p. 12. The medical records establish that Pizarro had to be intubated at the accident scene; that he suffered spinal and rib fractures, a subdural hematoma, a severe traumatic brain injury, and a splenic laceration; and that he was hospitalized for twelve days and then placed in an “intensive, comprehensive, multidisciplinary rehabilitation program” for thirteen days. Doc 3-1 at p. 12. These injuries clearly suggest that damages in excess of $75,000 was likely. In other words, by March 24, 2021, Defendants could have and should have known that damages would exceed the jurisdictional threshold.

*5 Defendants argue that it was not until their June 17, 2021 conversation with Pizarro’s lawyer that removability became ascertainable. Doc. 1 at ¶ 16-18; Doc. 9, at p. 6–7. In their June 22, 2021 notice of removal, Defendants state: “… given the described nature of the injury, the exhaustion of no fault benefits for medical expenses, and the approximately 30 day inpatient hospital stay with continuing treatment thereafter, it is readily apparent that the economic damages at issue in this action exceed $75,000.” Doc. 3-14, ¶ 18 (emphasis added).

This statement undermines Defendants’ legal position in two critical ways. First, the record reveals that all of the details provided in the June 17, 2021 telephone call were disclosed by March 24, 2021, with the production of Pizarro’s medical records. Doc. 3-4 at ¶ 18; Doc. 3-11; Doc 3-1 at p. 12. Defendants implicitly admit, therefore, that they were sufficiently on notice of removability by the March date.

Second, Defendants’ statement contradicts the narrow reading of the Moltner rule on which its entire timeliness argument rests. On the one hand, Defendants argue that a case is not removable unless a plaintiff expressly states that damages will exceed the jurisdictional threshold. Doc. 9 at p.9-10. However, the information that made it “… readily apparent that the economic damages at issue in this action exceed $75,000 …” did not include any express statement that the damages exceeded $75,000. Doc. 3-14, ¶ 18.

In sum, given the nature of the described injuries, hospital stays, number of doctors, and economic damages, Pizarro has alleged facts from which damages exceeding $75,000 could have been intelligently ascertained by Defendants by March 24, 2021, at the very latest. Defendants did not file the notice of removal until 90 days later on June 22, 2021. Thus, removal was untimely and requires remand to state court.2

b. Complete Diversity Exists Among the Parties
*6 When diversity of citizenship is the basis for removal, diversity must exist not only at the time the action was filed in state court, but also at the time the case is removed to federal court. See Steven v. Nichols, 130 U.S. 230 (1899); United Food and Commercial Workers Union, Local 919 v. Center Mark Props. Meriden Square Inc., 30 F.3d 298, 301 (2d Cir. 1994); Webb v. Harrison, 14-CV-5366, 2015 WL 500179, at *1 (S.D.N.Y. Feb. 5, 2015).

Pizarro argues that Defendants failed to establish the domicile of Bah by competent proof either at the time the action was commenced or in the notice of removal, and thus the case must be remanded to state court. Doc. 3-1 at p. 15. Specifically, Pizarro argues that the fact that it was established that Bah was a resident of New Jersey at the time of the accident is insufficient to establish Bah’s domicile either at the time the state action was commenced or at the time the notice of removal was filed. Doc. 13 at p. 10-11.

In opposition, Defendants argue that a party’s domicile subsists absent a showing by clear and convincing evidence that that party’s domicile has changed. See Gutierrex v. Fox, 141 F.3d 425, 427 (2d Cir. 1998). Therefore, Defendants argue, because Pizarro has not presented evidence that Bah changed domicile between the accident–when his domicile was established–and the time the state action and the notice of removal were filed, Bah’s domicile has been sufficiently established at the time of the state action and the removal. Doc. 9 at p. 17. This Court agrees.

Records obtained at the time of the accident evidence that Bah was domiciled in Lindenwold, New Jersey. Doc. 9 at p. 16. Together, Bah’s driver’s license, New Jersey Department of Motor Vehicles records, the Police Accident Report, and employment records with Langer Transportation Corporation show that he lived in the state of New Jersey with the intent to remain there to live and work. Id. Accordingly, Defendants have shown that Bah was a citizen of New Jersey at the time the state action was filed and thus that the parties were completely diverse.

In their notice of removal, Defendants provided the New Jersey address where Bah resided at the time of the accident, and stated, “upon information and belief” is where Bah continues to be domiciled. Doc. 3-14 at ¶ 9. Pizarro has made no showing that in the time between the accident and its notice of removal that Bah had a change in domicile, and “until [a] new [domicile] is acquired, the old one remains.” See Gutierrex v. Fox, 141 F.3d 425, 428 (2d Cir. 1998) (emphasis added). Accordingly, Defendants have shown that Bah was a citizen of New Jersey at the time of removal and thus that the parties were completely diverse. As such, complete diversity has been sufficiently established by Defendant both at the time of the state action and at the time of removal.

Pizarro also argues that Defendants bear an additional burden under Local Civil Rule 81.1, which “… requires a removing defendant to specifically identify the residence and domicile of each party in its Notice of Removal. Doc. 3-1 at p. 14; Local Civil Rule 81.1. However, Local Civil Rule 81.1 was held invalid by the Committee for the United States District Courts for the Southern and Eastern Districts of New York.3 Local Civil Rule 81.1, Committee Note.

c. Technical Filing Defect Not Grounds for Remand
*7 Pizarro argues that Defendant’s removal was procedurally defective because it failed to attach “all process, pleadings, and orders,” pursuant to § 1446(a). Doc. 13, at p.12. While it is undisputed that Defendants failed to attach a copy of the Supreme Court’s Order denying Defendants’ motion to change venue in its notice of removal, that is merely a procedural defect, and is not grounds for remand. See CBS Inc. v. Snyder, 762 F. Supp. 71, 74 (S.D.N.Y. 1991) (“[p]ro forma defects cannot suffice to deprive a party of a plain entitlement to a federal forum.”). In addition, 28 U.S.C. § 1653 provides for the amendment of removal notices which contain technical defects.4 See Id. at 73; 28 U.S.C. § 1653. Defendants have since remedied the defect by submitting the previously-missing order to Pizarro, and thus remand on this ground is not warranted. Doc. 9 at p. 13.

IV. Conclusion
For the reasons discussed, the motion to remand is GRANTED. The Clerk of Court is respectfully directed to terminate the motion, and remand the case to the Supreme Court of the State of New York, New York County.

It is SO ORDERED.

All Citations
Slip Copy, 2021 WL 5326433

Footnotes

1
At the time of the accident, Bah presented the following documents: a New Jersey driver’s license, New Jersey Department of Motor Vehicles records, and records evidencing employment with Langer Transportation Corporation, a New Jersey Corporation. Doc. 9 at p. 16; Doc. 3-14 at ¶ 8.

2
Two additional points merit brief discussion. First, Defendants also appear to assert that removal was timely based on § 1446(c), which allows up to one year for removal where plaintiff acted in bad faith. Doc. 9 at p.7. Section 1446(c) provides, in relevant part: “[a] case may not be removed under subsection (b)(3) on the basis of jurisdiction conferred by section 1332 more than 1 year after commencement of the action, unless the district court finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action.” § 1446(c)(1). Because Defendants do not allege bad faith, § 1446(c) does not apply here.
Second, Defendants argue that Bah had not been properly served with the summons and complaint, and as such, only in filing the July 22, 2021 notice of removal did Bah accept service and start the removal clock. Doc. 3, at ¶ 20. The Court disagrees. According to CPLR 3211(e), “an objection that the summons and complaint … was not properly served is waived if, having raised such an objection in a pleading, the objecting party does not move for judgment on that ground within sixty days after serving the pleading …” CPLR § 3211(e).
Defendants’ original counsel filed answers on behalf of both Defendants on August 21, 2020. Doc. 3-6. Neither answer proffered an affirmative defense of improper service of process, nor did either Defendant, at any subsequent point, move for the dismissal of the state court action based on improper service of the summons and complaint. Id.; Doc. 3-1 at p. 7. Accordingly, that defense cannot now be raised to reset the removal clock.

3
“The Committee recommends the deletion of Local Civil Rule 81.1(b), because 28 U.S.C. § 1446(a) already provides that the removing party or parties shall file with the notice of removal ‘a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.’ ” Local Civil Rule 81.1, Committee Note.

4
“Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts.” 28 U.S.C. § 1653.

2021 WL 5282759

United States District Court, E.D. Arkansas,
CENTRAL DIVISION.
JOSEPH D. LACY, JR. PLAINTIFF
v.
RYDER TRUCK RENTAL, INC. DEFENDANT
Case No. 4:19-cv-00130-KGB
|
Filed 11/12/2021

OPINION AND ORDER
Kristine G. Baker United States District Judge
*1 Before the Court is defendant Ryder Truck Rental, Inc.’s (“Ryder”) motion for summary judgment (Dkt. No. 41). Plaintiff Joseph D. Lacy, Jr., filed a response in opposition to the motion for summary judgment (Dkt. No. 44), and Ryder replied (Dkt. No. 47). For the reasons that follow, the Court grants Ryder’s motion for summary judgment (Dkt. No. 41).

I. Background
In his operative complaint, Mr. Lacy brings claims for negligence, products liability, and breach of express and implied warranties against Ryder (Dkt. No. 42, ¶ 1). The allegations in support of these claims arise from a single-vehicle accident that occurred on April 10, 2016 (Id.). At the time of the accident, Mr. Lacy was driving a 2012 Freightliner tractor-trailer (VIN 1FUJGLBG69CSBT9222) that had been leased by Ryder to his employer, Surety Transport, Inc. (“Surety Transport”) (Id., ¶ 2). Surety Transport was domiciled in North Little Rock, Arkansas, and the lease listed the domicile of the leased vehicle as Little Rock, Arkansas (Id., ¶ 3). Mr. Lacy was traveling in the subject tractor-trailer for his employer on U.S. Highway 30 in Clinton County, near Dewitt, Iowa (Id., ¶ 6). While on a curved ramp leading from Highway 30 to Highway 61, Mr. Lacy lost control of the subject tractor-trailer, and it began swerving. The subject tractor-trailer then overturned onto its side and slid off the roadway (Id.).

Mr. Lacy alleges that the subject tractor-trailer’s “cruise control system failed causing the truck to accelerate out of control and not react or shutoff when braking was applied” (Id., ¶ 2). Mr. Lacy claims in his operative complaint that, as a result, he was required to drive intentionally from the roadway to avoid injuring others on the highway, and he claims that he was seriously injured when the truck and the trailer it was carrying crashed as it left the road (Dkt. No. 39, ¶ 5).

Ryder leased the subject tractor-trailer to Surety Transport on February 6, 2016 (Dkt. No. 42, ¶ 3). Ryder regularly provided maintenance to the subject tractor-trailer throughout the lease (Id., ¶ 4). According to Mr. Lacy, the repair records indicate that on March 25, 2016, Ryder replaced the on/off switch of the cruise control system and replaced the clutch of the subject tractor-trailer (Dkt. No. 39, ¶ 5). Mr. Lacy testified that he made a complaint that the speedometer did not coincide with the actual speed of the subject tractor-trailer when the cruise control was engaged (Id.). Both parties agree that repairs and replacements were made to the subject tractor-trailer’s cruise control system and that, following the completion of the work, the switch and cruise control system were operational and without defect (Dkt. No. 44-1, Request for Admission No. 8).

After the accident, Mr. Lacy pursued workers’ compensation claims against his employer Surety Transport in both Arkansas and Iowa (Dkt. No. 42, ¶ 7). During the proceedings, Mr. Lacy stated that the reason for the subject accident was that the shipper of the cargo that he was transporting loaded the cargo incorrectly causing the subject tractor-trailer to flip over (Id.). In a letter to the Clinton County Sheriff’s Office responding to the citation he received for failure to maintain control, Mr. Lacy again stated that the reason for the subject accident was that the shipper of the cargo that he was transporting loaded the cargo incorrectly causing the subject tractor-trailer to flip over (Id., ¶ 8).

*2 In his operative complaint before this Court, Mr. Lacy alleges that the subject tractor-trailer’s “cruise control electronic system failed causing the truck to accelerate out of control and not react or shutoff when braking was applied” (Dkt. No. 39, ¶ 5). Mr. Lacy claims that Ryder’s negligent maintenance, defective product, and breach of express and implied warranties are the direct and proximate cause of his injuries (Id., ¶¶ 6-9). He seeks the following damages: medical expenses; pain, suffering, and mental anguish; lost wages; scarring and disfigurement; and loss of earning capacity (Id., ¶ 13).

Ryder has disclosed an expert, Mitchell Lee Rackers, P.E., who has provided an accident reconstruction report stating that there was “no evidence of any deficiencies with the [subject tractor-trailer] which would have contributed to the cause of the accident.” (Dkt. No. 42, ¶ 14). In examining the Event Data Recording (“EDR”) Data from the subject tractor-trailer, Mr. Rackers found that the cruise control switch was set to “OFF” when a fault code occurred after the overturning of the subject tractor-trailer. Mr. Rackers also evaluated the tires, brakes, steering, and suspension systems of the subject tractor-trailer and found that they were intact and functional prior to the accident (Id., ¶ 15).

Mr. Lacy has disclosed no expert witness in this matter, and the time to do so has passed (Dkt. Nos. 20; 42, ¶ 16). See also Fed. R. Civ. P. 26(a)(2)-(3).

II. Legal Standard
Pursuant to the Federal Rules of Civil Procedure, the Court may grant summary judgment if the evidence, viewed in the light most favorable to the non-moving party, shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Cheshewalla v. Rand & Son Constr. Co., 415 F.3d 847, 850 (8th Cir. 2005). A dispute is genuine if a reasonable jury could render its verdict for the non-moving party. Anderson., 477 U.S. at 248. “The mere existence of a factual dispute is insufficient alone to bar summary judgment; rather, the dispute must be outcome determinative under prevailing law.” Holloway v. Pigman, 884 F.2d 365, 366 (8th Cir. 1989).

The initial burden is on the party seeking summary judgment to demonstrate an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Farver v. McCarthy, 931 F.3d 808, 811 (8th Cir. 2019). If the moving party satisfies its burden, the burden then shifts to the non-moving party to establish that there is a genuine issue to be determined at trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Prudential Ins. Co. v. Hinkel, 121 F.3d 364, 366 (8th Cir. 1997). The non-moving party “ ‘must do more than simply show that there is some metaphysical doubt as to the material facts,’ and must come forward with ‘specific facts showing that there is a genuine issue for trial.’ ” Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc) (quoting Matsushita, 475 U.S. at 586, 587). Mere denials or allegations are insufficient to defeat an otherwise properly supported motion for summary judgment. See Commercial Union Ins. Co. v. Schmidt, 967 F.2d 270, 271-72 (8th Cir. 1992); Miner v. Local 373, 513 F.3d 854, 860 (8th Cir. 2008). When the non-moving party cannot make an adequate showing on a necessary element of the case on which the party bears the burden of proof, the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 322.

III. Discussion
*3 Ryder maintains that it is entitled to summary judgment because no material issues of fact are in dispute and because Mr. Lacy’s claims contain several fatal deficiencies.1 Ryder argues that Mr. Lacy cannot establish an essential element of his claims because he has: (1) submitted no evidence that the subject tractor trailer, including its cruise control system, was defective at the time it left Ryder’s control; (2) failed to give reasonable notice of his breach of warranty claims; and (3) failed to provide proof that any express warranties were made by Ryder (Dkt. No. 41, ¶ 4-5). Mr. Lacy avers that Ryder’s motion for summary judgment should be denied because his own deposition testimony and the subject tractor-trailer repair records establish questions of fact as to the defective nature of the cruise control system and switch (Dkt. No. 45, at 3). The Court addresses the parties’ arguments.2

A. Negligence And Product Liability Claims
“Although the elements of negligence, breach of warranty, and strict liability are not identical, in any products liability case in Arkansas a plaintiff must show that the product was defective and that the defect proximately caused the plaintiff’s injury.” First Nat’l Bank of Phillips Cty. v. Ford Motor Co., Case No. 2:03-cv-000038 JLH, 2005 WL 8164444, at *2 (E.D. Ark. July 27, 2005) (internal citations omitted); see Ark. Code Ann. § 16-116-101(a). A plaintiff must present sufficient evidence from which a jury could reasonably conclude that the defect was more likely than not the cause of the plaintiff’s injury. First Nat’l Bank of Phillips Cty., 2005 WL 8164444, at *2. In the absence of direct proof of a specific defect, the plaintiff must negate other possible causes of the accident by a “preponderance of the probabilities.” Yielding v. Chrysler Motor Co., Inc., 783 S.W.2d 353, 355 (Ark. 1990) (citing Harrell Motors, Inc. v. Flanery, 612 S.W.2d 727 (Ark. 1981)).

*4 Under Arkansas law, the general rule is that expert testimony is required to prove that there was a defect in the product which caused the plaintiff’s injuries. See Yielding, 783 S.W.2d at 355– 356. There is, however, “a res ipsa loquitur-like exception: If common experience teaches that no accident would have happened absent some defect, then a plaintiff can get to the jury without an expert.” Oliphant v. FCA US LLC, Case No. 3:18-cv-33-DPM, 2019 WL 1590577, at *1 (E.D. Ark. Apr. 12, 2019) (applying Arkansas law). This narrow exception is only available when the plaintiff produces substantial evidence negating other possible causes of the accident. Id. (citing Higgins v. General Motors Corp., 699 S.W.2d 741, 743 (Ark. 1985)). Substantial evidence is defined as “that which is of sufficient force and character that it will compel a conclusion one way or another. It must force or induce the mind to pass beyond a suspicion or conjecture.” Higgins, 699 S.W. 2d at 744 (citing Dan Cowling & Associates v. Clinton Board of Education, 618 S.W.2d 158 (Ark. 1981)).

Ryder contends that Mr. Lacy cannot meet this burden. As an initial matter, Mr. Lacy has offered no expert testimony to support his allegations that the cruise control system in the subject tractor-trailer was defective and that the defect proximately caused his injury. In the absence of expert testimony or direct proof that the subject tractor-trailer was defective, the question is whether, viewing the record evidence in the light most favorable to Mr. Lacy, a reasonable jury could find that Mr. Lacy has produced sufficient evidence from which a reasonable fact finder could determine that he negated other possible causes of the accident by a preponderance of the probabilities. The Court concludes that, on the record evidence with all reasonable inferences draw in favor of Mr. Lacy, the answer is no.

The only evidence Mr. Lacy submits is his own testimony and the records for the repairs made to the subject tractor-trailer’s cruise control system on March 25, 2016. He argues that this constitutes “substantial collaborative evidence that shows an absence of defect when the truck was repaired and returned to [him] and also raises a question of fact as to whether the Ryder Truck and its cruise control components were not working and defective at the time of the accident.” (Dkt. No. 45, at 3). He cites Harrell Motors, Inc. v. Flanery, 612 S.W. 2d 727 (Ark. 1981), to advance his position that he can prove the cruise control system in the subject tractor-trailer was defective without the aid of expert testimony. In Flanery, the plaintiff testified that the transmission had not properly functioned from shortly after the date of purchase, and there was evidence that the transmission was also the cause of the subject accident. 612 S.W. 2d at 729. The Court finds none of these facts applicable to the instant matter. In contrast to Flanery, where the evidence tended to show that the defect existed before the accident, here Mr. Lacy does not dispute that Ryder repaired and returned the subject tractor-trailer to him in “working condition without notice of any abnormality” after he complained that the speedometer did not coincide with the actual speed when the cruise control system was engaged (Dkt. No. 45, at 2). More to the point, there is no dispute that Mr. Lacy’s prior complaint about the subject tractor-trailer’s cruise control system is different from the present allegation that the cruise control system failed to shut off at the time of the accident.

Mr. Lacy has also failed to submit evidence negating other causes of the subject accident. For product liability claims arising from vehicular accidents, the plaintiff must sufficiently negate driver error or control. See, e.g., Williams v. Smart Chevrolet Co., 730 S.W. 2d 479, 482 (Ark. 1987) (determining that plaintiff’s testimony that she shut and locked the door of the car before the door swung open in an accident did not sufficiently negate driver error); Mixon v. Chrysler Corp., 663 S.W. 2d 713, 714-15 (Ark. 1984) (determining that plaintiff failed to negate other possible causes such as road conditions, speed, or driver operation of vehicle). Mr. Lacy offers no evidence to negate driver error besides his own deposition testimony of “feathering” the breaks to no avail and swerving off the road to avoid hitting other vehicles (Dkt. No. 41-2). He also provides no evidence to negate his previous explanation—undisputed in the record before the Court—that the unstable shipping cargo he was hauling caused the truck to tip over (Dkt. No. 41-8). Nor does Mr. Lacy rebut the conclusion offered by Ryder’s expert witness that “[t]he accident was the result of the driver traveling at an excessive speed and failing to maintain control of his vehicle” (Dt. No. 41-8). Instead, Mr. Lacy maintains that the expert’s finding “creates a question of fact on the operation of the cruise control system and switch and the reason for speed of the truck” (Dkt. No. 46, ¶ 1). Based on the evidence in the record, a reasonable jury could only speculate as to the cause of the accident. “A guess between several possibilities cannot support a verdict.” Oliphant, 2019 WL 1590577, at *2.

*5 All of these allegations upon which Mr. Lacy relies, in the light of the record evidence with all reasonable inferences construed in Mr. Lacy’s favor, do not carry his burden at this stage of the litigation. Accordingly, Ryder is entitled to summary judgment.

B. Breach Of Warranty Claims
Mr. Lacy asserts breach of express and implied warranties (Dkt. No. 39, ¶¶ 8, 10). Breach of warranty and products liability claims are “essentially the same” insofar as both require a product defect attributable to the defendant. Higgins, 699 S.W.2d at 743; see also Madden v. Mercedes-Benz USA, Inc., 481 S.W.3d 455, 460–61 (Ark. Ct. App. 2016). Because the Court finds that Mr. Lacy has failed to establish evidence of a defect in the subject tractor-trailer that was the proximate cause of the subject accident, Ryder is also entitled to summary judgment as a matter of law on the breach of warranty claim. Further, with respect to reasonable notice, Mr. Lacy does not dispute that Ryder repaired and returned the subject tractor-trailer to him in “working condition without notice of any abnormality” after he complained that the speedometer did not coincide with the actual speed when the cruise control system was engaged (Dkt. No. 45, at 2). Mr. Lacy’s prior complaint about the subject tractor-trailer’s cruise control system is different from the present allegation that the cruise control system failed to shut off at the time of the accident, undercutting his argument as to reasonable notice. Moreover, Mr. Lacy does not dispute that he testified at his deposition that no one from Ryder made any warranty or promise to him about the vehicle (Dkt. No. 43, at 12). For all of these reasons, the Court grants summary judgment in favor of Ryder on Mr. Lacy’s breach of warranty claims.

IV. Conclusion
For these reasons, the Court grants defendant’s motion for summary judgment. The Court denies Mr. Lacy the relief he seeks. Because the Court has resolved this case in favor of Ryder, the Court removes this case from the trial calendar for the week of November 29, 2021 (Dkt. No. 48). The Court denies as moot Ryder’s motion for hearing and Mr. Lacy’s motion to extend the time to file pretrial disclosures (Dkt. Nos. 50, 53). Judgment will be entered accordingly.

It is so ordered this 12th day of November, 2021.

All Citations
Slip Copy, 2021 WL 5282759

Footnotes

1
In its answer to Mr. Lacy’s operative complaint, Ryder alleges that this Court “may lack subject matter jurisdiction over the matter in that the citizenship of one or more of the parties referenced in the third amended and substituted complaint is not pleaded or otherwise established therein” and that “the third amended and substituted complaint infers/implies that the parties are each citizens of the same state and are therefore not ‘diverse’ for jurisdictional purposes.” (Dkt. No. 40, ¶¶ 14-15). In his operative complaint, Mr. Lacy states he is a citizen of Faulkner County, Arkansas, and that Ryder is a foreign corporation doing business in Little Rock, Arkansas, with its principal place of business in Miami, Florida (Dkt. No. 39, ¶¶ 1–2). Neither Ryder nor Mr. Lacy raise this Court’s subject matter jurisdiction in their arguments on summary judgment.

2
The Court acknowledges that Ryder raises the possibility in its summary judgment briefing that Iowa law may apply to Mr. Lacy’s claims (Dkt. No. 43, at 6 n.2). Mr. Lacy does not address this issue in his response and instead relies solely upon Arkansas law in his briefing (Dkt. No. 45). The Court determines that, without deciding the choice of law issue, the outcome of Ryder’s motion for summary judgment is the same under Arkansas and Iowa law. In this Order, the Court addresses Mr. Lacy’s claims applying Arkansas law, as the parties have done. If Iowa law applies because the accident occurred in Iowa, then Mr. Lacy’s negligent maintenance claim falls outside the applicable two-year statute of limitations period and is time-barred. Iowa Code Ann. § 614.1. Additionally, Mr. Lacy’s product liability claim fails because Iowa law requires expert testimony in product defect cases that involve technical issues not fully understood by the average juror. Cummings v. Deere & Co., 589 F. Supp.2d 1108, 1117–19 (S.D. Iowa 2008). “[W]arranty liability under [Iowa law] requires proof of a product defect as defined in Products Restatement section 2,” as well. Wright v. Brooke Group, Ltd., 652 N.W.2d 159, 182 (Iowa 2002).