2021 WL 1051623

United States District Court, S.D. New York.
Mayvelin DE LA ROSA MARTINEZ, Plaintiff,
v.
HARBOR EXPRESS, LLC and Pat Salmon & Sons, Inc., Defendants.
Aaron Leon, by Maria Then, Guardian, and Maria Then, Individually, Plaintiffs,
v.
Harbor Express, LLC. and Pat Salmon & Sons, Inc., Defendants.
15cv07458 (GBD) (DF) (Lead case)
|
15cv07483 (GBD) (DF) (Member case)
|
Signed 03/18/2021
Attorneys and Law Firms
Glenn Verchick, Law Office of Glenn Verchick, Richard M. Winograd, Ginarte, O’Dwyer, Gonzalez & Winograd, LLP, Steven R. Payne, NYC Law Department, Office of the Corporation Counsel, New York, NY, for Plaintiffs.
Elizabeth Streelman, Michael Robert Schneider, Kennedys Cmk LLP, New York, NY, for Defendant Harbor Express, LLC.
Gary N. Stewart, Rawle & Henderson, LLP, Harrisburg, PA, Diane Beckman Carvell, Rawle & Henderson, LLP, New York, NY, for Defendant Pat Salmon & Sons, Inc.

MEMORANDUM DECISION AND ORDER
GEORGE B. DANIELS, United States District Judge:
*1 In this consolidated action, Plaintiffs Mayvelin De La Rosa Martinez (“De La Rosa”) and Aaron Leon, by his guardian Maria Then, bring personal injury claims arising out of the same motor vehicle accident. Defendants Harbor Express, LLC and Pat Salmon & Sons, Inc. move for summary judgment pursuant to Federal Rule of Civil Procedure 56 seeking the dismissal of all claims asserted against them by Plaintiffs.1 Defendant Pat Salmon also filed a choice of law motion, asking the Court to determine whether New York or New Jersey law would apply to questions of loss allocation (or a finding of joint and several liability) if Defendants are found liable.

Before this Court is Magistrate Judge Freeman’s February 8, 2021 Report and Recommendation (the “Report”), recommending (1) that each of Pat Salmon’s summary judgment motions be granted to the extent they seek dismissal of Plaintiff’s direct negligence claim; (2) that Harbor Express’s motion for summary judgment be denied in its entirety; and (3) that Pat Salmon’s choice of law motion be denied as premature. (Report, ECF No. 132, at 46–47.) Magistrate Judge Freeman advised the parties that failure to file timely objections to the Report would constitute a waiver of those objections on appeal. (Id. at 47.) Defendant Harbor Express filed timely objections.2 (Def.’s Opp’n to R. & R. (“Objs.”), ECF No. 135.) Plaintiffs De La Rosa and Leon filed responses to those objections. (Pl. Leon’s Resp. to Def.’s Objs. to the Mag. J.’s R. & R., ECF No. 136; Pl. De La Rosa’s Resp. to Def.’s Objs. to the Mag. J.’s R. & R., ECF No. 137.) Having reviewed Magistrate Judge Freeman’s Report, as well as Harbor Express’s objections and the responses from Plaintiffs, this Court ADOPLS the Report in full and overrules Defendant’s objections.

I. FACTUAL AND PROCEDURAL BACKGROUND
In the early morning hours of August 31, 2013, three vehicles were involved in a collision on the eastbound lanes of Interstate 78 in New Jersey. (Report at 2–3; Harbor Express Rule 56.1 Stmt. ¶ 1.) The vehicles at issue are: (1) a Harbor Express tractor-trailer driven by Anival Velez; (2) a Pat Salmon tractor-trailer, driven by William Traylor; and (3) a Honda, driven by non-party Noel Then and occupied by Plaintiff Leon (in the front passenger seat), and Plaintiff De La Rosa in the rear seat.3 (Report at 3.)

At approximately 3:17 a.m., Velez lost control of the Harbor Express tractor-trailer and “jack-knifed,” resulting in the tractor portion of the vehicle being stopped in the median of the highway and the trailer coming to a stop in the left-hand lane. (Report at 4; Harbor Express Rule 56.1 Stmt. ¶ 3.) Having observed the Harbor Express tractor-trailer jack-knife, Traylor (at approximately 3:18 a.m.) pulled the Pat Salmon tractor-trailer over onto the right-hand shoulder of the highway. (Harbor Express Rule 56.1 Stmt. ¶ 4.) Another driver, Mario Mendoza, also saw the Harbor Express tractor-trailer lose control and similarly pulled over onto the right-hand shoulder. (Id. at ¶ 21.) Both Traylor and Mendoza crossed the highway on foot to check on Velez and see if he was injured. (Id. at ¶¶ 20–22.) A few moments later, at approximately 3:20 a.m., the Honda, in which Plaintiffs were traveling, came up to the area where the Harbor Express tractor-trailer had jack-knifed, went off the road to the right, and collided with the rear of the Pat Salmon tractor-trailer. (Id. at ¶ 6.) The Honda wedged under the Pat Salmon tractor-trailers, requiring the occupants to be “extricated” by emergency personnel arriving on the scene. (Report at 4–5.) Plaintiffs, in critical condition, were transported to a hospital with “head” injuries as well as “internal trauma.” (Id. at 5.)

*2 The parties dispute why the Honda struck the Pat Salmon tractor-trailer. Plaintiffs claim that the driver of the Honda had to veer to the right either (1) to avoid debris present in the roadway as a result of the Harbor Express tractor-trailer jack-knifing, or (2) to avoid rear-ending another car that may itself have slowed to avoid such debris. (Report at 4.) Defendants contend that the Honda was speeding, and dispute whether there was debris on the highway or whether another vehicle caused the Honda to alter its course of travel. (Id.)

Defendant Pat Salmon filed a motion for summary judgment in both the De La Rosa case and the Leon case. (Defendant Pat Salmon & Sons, Inc.’s Notice of Motion for Summ. J. (“Salmon Mot. I”) (ECF No. 85 in 15-cv7458); Defendant Pat Salmon & Sons, Inc.’s Notice of Motion for Summ. J. (“Salmon Mot. II”) (ECF No. 58 in 15-cv-7483).) Defendant Harbor Express also moved for summary judgment in both cases, doing so by filing a single motion on the docket of the De La Rosa case. (Defendant Harbor Express, LLC’s Notice of Motion for Summ. J., (“Harbor Mot.”) (ECF No. 87).) Pat Salmon additionally filed a “Motion on Choice of Law” arguing, in both the De La Rosa and Leon cases, that New Jersey law should apply to the issue of joint and several liability. (Defendant Pat Salmon & Sons, Inc.’s Motion on Choice of Law (“Salmon Choice of Law Mot.”) (ECF No. 82, amended at ECF No. 84).)

II. LEGAL STANDARDS

A. Reports and Recommendations.
“Although a magistrate may hear dispositive pretrial motions, [s]he may only submit proposed findings of fact and recommendations for disposition of the matter.” Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990). The district court must review de novo the portions of a magistrate judge’s report and recommendation to which a party properly objects. 28 U.S.C. § 636(b)(1)(C). However, the district court need not conduct a de novo hearing on the matter. See United States v. Raddatz, 447 U.S. 667, 675–76 (1980). Instead, it is sufficient that the district court “arrive at its own, independent conclusion” regarding those portions of the report to which objections are made. Nelson v. Smith, 618 F. Supp. 1186, 1189–90 (S.D.N.Y. 1985) (citation omitted).

Portions of a magistrate judge’s report to which no or “merely perfunctory” objections are made are reviewed for clear error. See Edwards v. Fischer, 414 F. Supp. 2d 342, 346–47 (S.D.N.Y. 2006) (citations omitted). Clear error is present when “upon review of the entire record, [the court is] ‘left with the definite and firm conviction that a mistake has been committed.’ ” United States v. Snow, 462 F.3d 55, 72 (2d Cir. 2006) (citation omitted). “A magistrate’s ruling is contrary to law if it ‘fail[s] to apply or misapplies relevant statutes, case law, or rules of procedure[.]’ ” Thai Lao Lignite (Thai.) Co. v. Gov’t of Lao People’s Democratic Republic, 924 F. Supp. 2d 508, 512 (S.D.N.Y. 2013) (first alteration in original) (citation omitted).

B. Rule 56 Motion for Summary Judgment.
Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). “An issue of fact is ‘genuine’ if ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ ” Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir. 2002) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A fact is material when it “might affect the outcome of the suit under the governing law.” Gayle, 313 F.3d at 682 (quoting Anderson, 477 U.S. at 248) (internal quotation marks omitted).

*3 The party seeking summary judgment has the burden of demonstrating that no genuine issue of material fact exists. See Marvel Characters, Inc. v. Simon, 310 F.3d 280, 286 (2d Cir. 2002). In turn, to defeat a motion for summary judgment, the opposing party must raise a genuine issue of material fact. See Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002). To do so, it “must do more than simply show that there is some metaphysical doubt as to the material facts,” id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)), and it “may not rely on conclusory allegations or unsubstantiated speculation,” Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 428 (2d Cir. 2001) (quoting Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998)) (internal quotation marks omitted). Rather, the opposing party must produce admissible evidence that supports its pleadings. See First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289–90 (1968). In this regard, “[t]he ‘mere existence of a scintilla of evidence’ supporting the non-movant’s case is also insufficient to defeat summary judgment.” Niagara Mohawk Power Corp. v. Jones Chem., Inc., 315 F.3d 171, 175 (2d Cir. 2003) (quoting Anderson, 477 U.S. at 252).

In determining whether a genuine issue of material fact exists, the court must construe the evidence in the light most favorable to the opposing party and draw all inferences in that party’s favor. See id. However, “a court must not weigh the evidence, or assess the credibility of witnesses, or resolve issues of fact.” Victory v. Pataki, 814 F.3d 47, 59 (2d Cir. 2016) (citation and internal quotation marks omitted). Summary judgment is therefore “improper if there is any evidence in the record that could reasonably support a jury’s verdict for the non-moving party.” Marvel, 310 F.3d at 286.

III. THE REPORT IS ADOPTED IN FULL

A. Defendant Pat Salmon’s Motion for Summary Judgment is Granted as to Plaintiffs’ Direct Negligence Claims and Denied as to Plaintiffs’ Vicarious Liability Claims.
Magistrate Judge Freeman correctly found that Defendant Pat Salmon’s motion for summary judgment should be denied as to Plaintiffs’ respondeat superior claims. (Report at 32.) Indeed, as Magistrate Judge Freeman properly outlined, there are triable issues of fact as to whether Traylor owed Plaintiffs a duty of care, breached that duty, or caused Plaintiffs’ injuries. (Id. at 16–30.) Additionally, Magistrate Judge Freeman properly held that Plaintiffs’ direct claims against Pat Salmon for negligent hiring, qualifying, retaining, training, and supervising, and for negligent entrustment should be dismissed. (Report 30–32.) Neither New York nor New Jersey law permits a plaintiff to pursue a claim of negligent hiring or entrustment where the plaintiff has established a vicarious liability claim which would render the employer liable for the damages caused by the actions of its employee. See Lee ex rel. Est. of Lee v. J.B. Hunt Transp., Inc., 308 F. Supp. 2d 310, 312–315 (S.D.N.Y. 2004) (discussing both New York and New Jersey law).

B. Defendant Harbor Express’ Motion for Summary Judgment is Denied.
Magistrate Judge Freeman concluded that there were disputed issues of material fact regarding whether Velez (the driver of the Harbor Express tractor-trailer) breached his duty of care and whether Velez’s actions were the proximate cause of Plaintiffs’ injuries, thus making summary judgment inappropriate. (Report at 44.) Harbor Express objects to Magistrate Judge Freeman’s Report, arguing that Harbor has clearly established that it was not negligent and claiming that the Report failed to cite evidence supporting the notion that there is a question of fact on the issue of causation. (Objs. at 1, 7–15.) Harbor Express is incorrect. Moreover, their objections to the Report amount to asking this Court to make credibility determinations and weigh the evidence, but that is not the Court’s role on summary judgment. Rogoz v. City of Hartford, 796 F.3d 236, 245 (2d Cir. 2015).

*4 Harbor Express’s summary judgment motion and objections do not explicitly argue that Velez did not owe a duty of care to Plaintiffs. (Objs. at 3–5.) Thus, having reviewed the submissions of the parties and the Report for clear error on this point, and finding none, Magistrate Judge Freeman correctly found that Velez owed a duty of care to other motorists on the highway, including Plaintiffs. (Report at 34–35.)

Harbor Express does challenge Magistrate Judge Freeman’s conclusion that material issues of fact exist as to whether Velez breached this duty of care. Harbor Express contends that Velez was traveling at a safe speed, looking straight ahead, and that the tractor-trailer did not jack-knife because of any improper or negligent conduct on Velez’s part. (Objs. at 3.) Rather, Harbor Express claims that Velez lost control of the tractor-trailer because he was trying to avoid another tractor-trailer in the left lane that was “passing him at a fast rate of speed.” (Id.) Plaintiffs rely on video recorded by Thomas Charette (who was passing the Harbor Express tractor-trailer on the west-bound lanes) and claim the video “does not show another vehicle cutting off Velez.” (ECF No. 92-10.) Plaintiffs also cite to Mr. Mendoza’s deposition testimony in which he testified that he thought Velez had been asleep at the wheel. (Report at 36.) Harbor Express maintains that this evidence should be disregarded as speculative. However, this evidence creates a genuine issue of material fact by calling Velez’s account of the accident into question. On this evidence, a jury could reasonably decide that Velez had been driving negligently. While Harbor Express would like the Court to disregard this evidence, the credibility of Mr. Mendoza’s testimony, how much weight to assign the Charette video, and what inferences to draw from this evidence are the functions of a jury. Rogoz, 796 F.3d at 245.

Harbor Express also objects to Magistrate Judge Freeman’s finding that “a jury should determine whether it was reasonably ‘possible,’ within the meaning of [49 C.F.R. §] 392.22, for Velez to have placed warning devices outside of his vehicle before the time of Plaintiffs’ collision” and “whether Velez’s actions demonstrated that he exercised reasonable care to warn other drivers of the presence of the jack-knifed vehicle on a highway that was reportedly not well lit.” (Report at 38; Objs. at 5–7.)

In relevant part, 49 C.F.R. § 392.22 states:
Placement of warning devices – (1) General Rule … whenever a commercial motor vehicle is stopped upon the traveled portion or the shoulder of a highway for any cause other than necessary traffic stops, the driver shall, as soon as possible, but in any event within 10 minutes, place the warning devices required by § 393.95 of this subchapter …
Harbor Express maintains that it did not violate this provision because “it did not have sufficient time in the 2-3 minutes between its accident and the Plaintiffs’ accident to place reflective triangles” and that this is a question of law that does not require jury determination. (Objs. at 5.) Ultimately, what Velez could have accomplished in those 2-3 minutes and whether the actions he took (such as turning on his hazard lights) demonstrated reasonable care to warn other drivers should be determined by a jury. Magistrate Judge Freeman properly laid out the evidence presented by Plaintiffs and correctly found that Harbor Express has not demonstrated a lack of any material conflict regarding whether Harbor Express breached its duty of care to Plaintiffs.

*5 Harbor Express next objects to Magistrate Judge Freeman’s finding that material issues of fact also existed as to whether Velez’s conduct was a cause of Plaintiffs’ injuries. (Objs. at 7–16; Report 38.) Harbor argues (1) that it could not have caused the Honda’s crash because the Honda safely passed the Harbor Express tractor-trailer, (2) that there is no evidence to support Plaintiffs’ theory that debris in the roadway played role in its accident, and (3) that it is “simply not possible the car traveling ahead of the Honda braked suddenly upon seeing the jack-knifed” Harbor tractor trailer. (Objs. at 8–11.)

Here, the record is replete with conflicting testimony. Harbor Express correctly notes that there is testimony which supports it position that there was no debris in the road, or that if there was any debris it did not serve as an impediment to traffic. (Report 39–40.) However, there is also testimony from Velez and Mr. Mendoza which supports Plaintiffs’ position that there was debris on the roadway. Indeed, Mr. Mendoza testified that he shined a flashlight on the ground “to warn the traffic that there was a lot of debris.” (Id. at 42.) Similarly, as the Report noted, there is conflicting testimony in the record regarding how fast the Honda may have been traveling and whether it may have swerved, either to avoid debris, or because a car immediately ahead of it braked suddenly, when it saw the jack-knifed vehicle. (Id. 42–43.) Harbor Express objects to the Report’s reliance upon Mr. Mendoza’s testimony for this point and notes that the testimony did not explicitly state that he saw the first car brake suddenly due to the Harbor Express tractor-trailer being in the roadway. (Objs. at 11.) This objection is unpersuasive. The conflicting testimony in the record creates a material issue of fact which makes summary judgment inappropriate. Because, based on the evidence in the record, a jury could reasonably conclude either that the car immediately ahead of the Honda braked suddenly or that it did not, Magistrate Judge Freeman correctly denied Harbor Express’ summary judgment motion.

As discussed above, Magistrate Judge Freeman dismissed the direct negligence claims against Pat Salmon because Plaintiffs have established that Pat Salmon would be liable under the doctrine of respondeat superior, if they ultimately prove that Traylor was negligent. But Magistrate Judge Freeman found that the claims of direct negligence against Harbor Express should not be dismissed. (Report at 44–45.) Harbor Express has not admitted that Velez was its employee or that he was operating within the scope of his employment at the time he lost control of the tractor-trailer. Indeed, there does not appear to be any evidence in the record regarding Velez’s employment status. Harbor Express premises its arguments for dismissal of the direct negligence claim on the same theory it set out for Plaintiffs’ respondeat superior claims: it cannot be liable because Velez cannot be found negligent. (Objs. at 17–18.) But, as already discussed, there are disputed issues of fact regarding Velez’s potential negligence. Thus, Magistrate Judge Freeman correctly concluded that this record does not support a grant of summary judgment to Harbor Express. (Report at 44–45.)

C. Choice of Law Motion
Pat Salmon also filed a choice of law motion arguing, in both the De La Rosa and Leon cases, that New Jersey law should apply to the issue of joint and several liability. Magistrate Judge Freeman recommended that this motion be denied, without prejudice, because it is premature to decide loss allocation before liability is decided. (Report at 46.) While Pat Salmon did not object to this portion of the Report, Harbor Express did by rather perfunctorily stating that “there is no reason the court cannot rule on this issue now.” (Objs. at 19.) Magistrate Judge Freeman did not err in recommending that the motion not be decided at this time. Defendants may renew this motion at trial.

IV. CONCLUSION
*6 Magistrate Judge Freeman’s Report is ADOPTED. Defendant Pat Salmon’s motion for summary judgment is GRANTED with regard to the direct claims of negligence asserted against it by Plaintiffs. Defendant Pat Salmon’s motion for summary judgment is DENIED with regard to Plaintiffs’ respondeat superior claims. Defendant Harbor Express’s motion for summary judgment is DENIED. Defendant Pat Salmon’s Choice of Law Motion is DENIED without prejudice. The Clerk of Court is directed to:

(1) Close ECF No. 85 in 15-cv-7458 and ECF No. 58 in 15-cv-7483;

(2) Close ECF No. 87 in 15-cv-7458; and

(3) Close ECF No. 82 in 15-cv-7458 and ECF No. 55 in 15-cv-7483.

SO ORDERED.

All Citations
Slip Copy, 2021 WL 1051623

Footnotes

1
As explained below, Pat Salmon has filed two summary judgment motions (ECF No. 85 in the De La Rosa case and ECF No. 58 in the Leon case.) Harbor Express has moved for summary judgment in both cases by filing a single motion in the De La Rosa case. (See ECF. No 87.)

2
Defendant Pat Salmon did not file objections to Magistrate Judge Freeman’s Report, thus the portions of the Report pertaining to Pat Salmon’s motion for summary judgment need only be reviewed for clear error.

3
Non-party Luis Cruz was also a passenger in the rear seat of the Honda. (Report at 3.)

2021 WL 911882
NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
Court of Appeal of Louisiana, Fourth Circuit.
Byron G. FRANCOIS
v.
PORTS AMERICA LOUISIANA, L.L.C.; Ceres Gulf, Inc.; New Orleans Terminal LLC; and Unknown Hit-and-run Driver
NO. 2020-CA-0440
|
MARCH 10, 2021
Synopsis
Background: Driver of tractor-trailer brought negligence action against stevedoring service companies, alleging that unknown operator of yard mule vehicle owned by companies rear-ended tractor-trailer at container terminal in sea port and caused driver’s injuries. The District Court, Orleans Parish, No. 2018-11874, Civil District, Christopher J. Bruno, J., granted companies’ motion for summary judgment. Driver appealed.

[Holding:] The Court of Appeal, Lobrano, J., held that summary judgment was prematurely granted.

Vacated and remanded.

West Headnotes (10)

[1]
Judgment

Ordinarily, a motion for summary judgment may be granted only after an opportunity for adequate discovery. La. Code Civ. Proc. Ann. art. 966(A)(3).

[2]
Judgment

For purposes of a motion for summary judgment, a “genuine issue” is a triable issue; an issue is genuine if reasonable persons could disagree. La. Code Civ. Proc. Ann. art. 966.

[3]
Judgment

If reasonable persons could reach only one conclusion, there is no need for a trial on that issue and summary judgment is warranted. La. Code Civ. Proc. Ann. art. 966.

[4]
Judgment

For purposes of a motion for summary judgment, a fact is “material” when its existence or nonexistence may be essential to plaintiff’s cause of action under the applicable theory of recovery. La. Code Civ. Proc. Ann. art. 966.

[5]
Judgment

When discovery is alleged to be incomplete, it is within the District Court’s discretion either to hear the summary judgment motion or to grant a continuance to allow for further discovery. La. Code Civ. Proc. Ann. art. 966.

[6]
Appeal and Error

The standard of review for a District Court’s choice to hear a motion for summary judgment or to grant a continuance when discovery is alleged to be incomplete is an abuse of discretion standard. La. Code Civ. Proc. Ann. art. 966.

[7]
Appeal and Error

Although the language of the statute governing summary judgment does not grant a party the absolute right to delay a decision on a motion for summary judgment until all discovery is complete, the law does require that the parties be given a fair opportunity to present their case. La. Code Civ. Proc. Ann. art. 966.

[8]
Judgment

Unless plaintiff shows a probable injustice, a suit should not be delayed pending discovery when it appears at an early stage that there is no genuine issue of fact for purposes of a motion for summary judgment. La. Code Civ. Proc. Ann. art. 966.

[9]
Judgment

The following four relevant factors should be considered with respect to a claim of inadequate discovery on a motion for summary judgment: (i) whether the party was ready to go to trial, (ii) whether the party indicated what additional discovery was needed, (iii) whether the party took any steps to conduct additional discovery during the period between the filing of the motion and the hearing on it, and (iv) whether the discovery issue was raised in the trial court before the entry of the summary judgment. La. Code Civ. Proc. Ann. art. 966.

[10]
Judgment

Summary judgment was prematurely granted in negligence action brought by driver of tractor-trailer against stevedoring service companies alleging that unknown operator of yard mule vehicle owned by companies rear-ended tractor-trailer, where there was no trial date set or any deadlines in which parties were required to complete discovery, companies did not file answer to driver’s negligence petition, only nine months had elapsed between filing of lawsuit and filing of motion, record did not indicate what discovery was done in period between motion and ruling, driver sought cooperation in identifying operator of yard mule, no depositions had been taken, and driver had opposed summary judgment on the basis of inadequate discovery and had requested two continuances. La. Code Civ. Proc. Ann. art. 966.

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH, NO. 2018-11874, DIVISION “F”, Honorable Christopher J. Bruno, Judge
Attorneys and Law Firms
Keith A. Doley, ATTORNEY AT LAW, 1554 North Broad Street, New Orleans, LA 70119, COUNSEL FOR PLAINTIFF/APPELLANT
José R. Cot, Robert K. Denny, HURLEY & COT, 365 Canal Street, Suite 2750, New Orleans, LA 70130, COUNSEL FOR DEFENDANT/APPELLEE
(Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Paula A. Brown)
Opinion

Judge Joy Cossich Lobrano

*1 **1 This is a tort case. Plaintiff/appellant, Byron G. Francois (“Francois”), appeals the March 20, 2020 judgment of the district court, which granted summary judgment in favor of defendants/appellees, Ceres Gulf, Inc. (“Ceres”) and New Orleans Terminal, L.L.C. (“NOT”), and dismissed all claims against Ceres and NOT. For the reasons that follow, we vacate the judgment and remand for further proceedings.

This litigation arises from an alleged hit-and-run accident on December 4, 2017 at the Napoleon Avenue Container Terminal located in the Port of New Orleans. On November 28, 2018, Francois filed a petition for damages alleging that he sustained personal injuries when an unknown driver operating a “yard mule” vehicle rear-ended the tractor-trailer that Francois was operating. In his petition, Francois alleged that the yard mule was owned and operated by Ceres, NOT,1 and/or Ports America Louisiana, L.L.C. (“Ports America”), all of which are companies providing stevedoring services in the Port of New Orleans.

**2 In response, on February 8, 2019, Ceres and NOT filed a dilatory exception of vagueness, contending that Francois failed to allege specific facts supporting that they owned the yard mule in question. The record does not reflect any hearing or ruling on this exception has gone forward, and Ceres and NOT did not file an answer or affirmative defenses to Francois’ petition. On March 20, 2019, Ports America filed a cross claim against NOT and Ceres alleging damage to its chassis trailer as a result of the accident.

On August 23, 2019, NOT and Ceres Gulf filed a motion for summary judgment, arguing Francois had no evidence of their involvement in or liability for the accident. In support of their motion, NOT and Ceres introduced, in relevant part, the affidavit of NOT manager Kristopher Calkins (“Calkins”), attesting that Ceres does not own any yard mules and that NOT reviewed its equipment and found no evidence of a damaged yard mule or NOT driver with knowledge of Francois’ accident. Calkins also attested that the area where the accident allegedly occurred is operated by Ports America. The hearing was initially set on October 4, 2019, but was continued on Francois’ unopposed motion. The hearing was again continued to January 10, 2020 on Ceres and NOT’s unopposed motion.

On December 20, 2019, Ports America filed an opposition to summary judgment, arguing that discovery is incomplete and that factual disputes exist as to whether NOT employees performed work in the vicinity of the accident scene. Ports America introduced affidavits by its employees Jason Reitmeyer and Anita Dargan, attesting that NOT exclusively conducts railcar operations in the area **3 where the accident occurred, along with a “dashcam” video purportedly showing a NOT top loader vehicle near the scene of the accident.

Francois likewise filed an opposition on December 23, 2019, arguing that discovery is ongoing and that NOT and Ceres have been uncooperative in obtaining said discovery and identifying the yard mule driver. Francois also introduced Anita Dargan’s affidavit in support of his opposition but did not introduce any additional evidence. On January 3, 2020, Ceres and NOT filed a reply memorandum arguing that Francois failed to adequately investigate the accident or conduct necessary discovery.

*2 The summary judgment hearing went forward on January 10, 2020, at which time Francois made an oral motion requesting 90 days in which to conduct discovery. The district court denied the requested continuance from the bench, and on March 30, 2020, the district court rendered summary judgment dismissing the claims against NOT and Ceres. This appeal followed, in which Francois raised two assignments of error:
I. The trial judge erred, as a matter of law, in granting summary judgment dismissing with prejudice appellant’s claims where Ceres Gulf, Inc. and New Orleans Terminal, LLC utterly failed to meet the burden of proof imposed upon them by Code of Civil Procedure Article 966, and genuine issues of material fact remain in dispute.
II. It was an abuse of the trial court’s discretion to refuse to allow additional time for appellant to complete discovery prior to granting summary judgment and dismissing appellant’s suit.

[1] [2] [3] [4]“Appellate courts review a judgment granting or denying a motion for summary judgment de novo.” **4 Serpas v. Univ. Healthcare Sys., 16-0948, p. 2 (La. App. 4 Cir. 3/8/17), 213 So.3d 427, 428 (quoting Louisiana High Sch. Athletics Ass’n, Inc. v. State, 12-1471, p. 18 (La. 1/29/13), 107 So.3d 583, 598).2 Ordinarily, a motion for summary judgment may be granted only “[a]fter an opportunity for adequate discovery…” La. C.C.P. 966(A)(3).

[5] [6]When discovery is alleged to be incomplete, it is within the district court’s discretion either to hear the summary judgment motion or to grant a continuance to allow for further discovery. Roadrunner Transportation Sys. v. Brown, 17-0040, p. 11 (La. App. 4 Cir. 5/10/17), 219 So.3d 1265, 1272 (citations omitted). The standard of review for a district court’s choice to hear a motion for summary judgment or to grant a continuance, in this procedural context, is an abuse of discretion standard. Id., 17-0040, p. 11, 219 So.3d at 1272-73 (citing Rivarde v. City of New Orleans, 15-0655, p. 5 (La. App. 4 Cir. 3/9/16), 190 So.3d 400, 403).

*3 **5 [7] [8]“Although the language of [Louisiana Code of Civil Procedure] article 966 does not grant a party the absolute right to delay a decision on a motion for summary judgment until all discovery is complete, the law does require that the parties be given a fair opportunity to present their case.” Serpas, 16-0948, p. 2, 213 So.3d at 429 (quoting Leake & Andersson, LLP v. SIA Ins. Co. (Risk Retention Grp.), 03-1600, pp. 3-4 (La. App. 4 Cir. 3/3/04), 868 So.2d 967, 969). “Unless plaintiff shows a probable injustice a suit should not be delayed pending discovery when it appears at an early stage that there is no genuine issue of fact.” Rivarde, 15-0655, p. 7, 190 So.3d at 405 (citations omitted).

[9]With respect to an inadequate discovery claim, this court has identified the following four relevant factors to be considered:
(i) whether the party was ready to go to trial,
(ii) whether the party indicated what additional discovery was needed,
(iii) whether the party took any steps to conduct additional discovery during the period between the filing of the motion and the hearing on it, and
(iv) whether the discovery issue was raised in the trial court before the entry of the summary judgment.
Roadrunner, 17-0040, pp. 11-12, 219 So.3d at 1273 (citing Bass P’ship v. Fortmayer, 04-1438, p. 10 (La. App. 4 Cir. 3/9/05), 899 So.2d 68, 75; Greenhouse v. C.F. Kenner Associates Ltd. P’ship, 98-0496, p. 3 (La. App. 4 Cir. 11/10/98), 723 So.2d 1004, 1006).

[10]Applying those factors to the record on appeal, we are unable to conclude that there has been an opportunity for adequate discovery.

**6 First, no party indicates readiness for trial. There was no trial date set or any scheduling order or deadlines in which the parties were required to complete discovery. In the Civil District Court of the Parish of Orleans, Local Rule 9.14 specifies the district court’s procedure – that cases may be set for trial upon a written motion by a party certifying, among other things, that all depositions and discovery have been completed, and that the matter is ready to be set for trial. Ceres and NOT did not file an answer to Francois’ petition, and the record reflects no resolution of those defendants’ exception of vagueness. Regarding the second and third factors, it is evident from the record that discovery was in its infancy when the motion for summary judgment was filed. No depositions had been taken, and the record does not bear out what discovery was done in the period between the motion for summary judgment’s filing and the district court’s ruling. Francois does not explain what specific discovery he will do if afforded more time, though he argues he seeks Ceres’ and NOT’s cooperation in identifying the at-fault yard mule and driver, presumably through written and deposition discovery. Turning to the fourth factor, both Francois and Ports America opposed summary judgment on the basis of inadequate discovery, and Francois requested two continuances of the summary judgment hearing, the second of which specifically cited the need for more time to conduct discovery. Taken together, these factors support Francois’ position that the district court abused its discretion in failing to allow adequate discovery before ruling on Ceres and NOT’s motion for summary judgment.

**7 This Court has found summary judgment premature where the party opposing summary judgment was not afforded a reasonable opportunity to take relevant depositions prior to being required to defend against the motion for summary judgment. Serpas, 16-0948, p. 2, 213 So.3d at 429 (citing Doe v. ABC Corp., 00-1905, p. 11 (La. App. 4 Cir. 6/27/01), 790 So.2d 136, 143); see also Milton-Gustain v. Salvage Store, Inc., 19-01854, pp. 1-2 (La. 2/10/20), 289 So.3d 48, 48. We recognize that, unless plaintiff shows “probable injustice,” courts will refuse to delay determination of summary judgment under the guise of pending discovery, when it appears at an early stage of the litigation that no genuine issues of fact exist. See Rivarde, 15-0655 at p. 7, 190 So.3d at 405 (quotations omitted). The record here does not support such a result. A scant nine months elapsed between the filing of this lawsuit and the filing of Ceres and NOT’s summary judgment motion. While Ceres and NOT point to some lack of diligence in Francois’ discovery efforts, we find no indication at this stage that any party completed its discovery or had adequate opportunity to do so, and it remains too early in the litigation to determine whether material factual disputes remain.

*4 On the particular facts of this case, summary judgment was prematurely granted.3 We, therefore, vacate the judgment of the district court and remand this matter for further proceedings.

VACATED AND REMANDED

All Citations
— So.3d —-, 2021 WL 911882, 2020-0440 (La.App. 4 Cir. 3/10/21)

Footnotes

1
NOT is a joint venture between Ceres and a nonparty, Container Marine Terminals, L.L.C.

2
An appellate court, using the same standard used by the district court, must determine:
whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law….
…[A] “genuine issue” is a “triable issue.” … An issue is genuine if reasonable persons could disagree. If … reasonable persons could reach only one conclusion, there is no need for a trial on that issue. … A fact is “material” when its existence or nonexistence may be essential to plaintiff’s cause of action under the applicable theory of recovery.
Supreme Services and Specialty Co., Inc. v. Sonny Greer, Inc., 06-1827, pp. 4-5 (La. 5/22/07), 958 So.2d 634, 638 (internal citations omitted).
La. C.C.P. art. 966(D)(1) sets forth a shifting burden of proof as follows:
The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.

3
Because we find the prematurity issue dispositive, we pretermit consideration of Francois’ remaining assignment of error.