2021 WL 3661017

United States District Court, E.D. Pennsylvania.
ORLANDO SANTIAGO PEREZ, Plaintiff,
v.
PENSKE LOGISTICS, LLC; PENSKE LOGISTICS CANADA LTD; and WHEEL KING TRANSHAUL, INC., Defendants.
No. 5:20-cv-05591
|
08/17/2021

JOSEPH F. LEESON, JR., United States District Judge

O P I N I O N Motion to Remand, ECF No. 7 – Denied Motion to Dismiss, ECF No. 16 – Denied

Joseph F. Leeson, Jr. August 17, 2021 United States District Judge

I. INTRODUCTION
*1 This case involves claims arising out of a motor vehicle accident between Plaintiff Santiago Perez and Jeet Charan Singh, who was driving a vehicle owned by Defendant Penske Logistics Canada Ltd (“Penske Canada”). Perez alleges that Penske Canada, among other Defendants, is vicariously liable for the actions of Singh, its employee, and was negligent/reckless in hiring, retention, and supervising of its employees. Penske Canada removed the action to this Court based on diversity jurisdiction alleging that Perez fraudulently joined Penske Logistics, LLC (“Penske Pennsylvania”), a Pennsylvania corporation, to defeat diversity. In turn, Perez has moved to remand. Penske Canada has further moved to dismiss the action under both Federal Rules of Civil Procedure 12(b)(5) and 12(b)(6). For the reasons outlined below, Perez’s motion to remand is denied, Penske Canada’s motion to dismiss is denied.

II. BACKGROUND
The factual allegations, as taken from the Complaint, are as follows:

On May 2, 2019, Singh was operating a tractor trailer owned, leased, and operated by Defendants.1 See Compl. ¶ 49, ECF No. 1–2. At all relevant times, Singh was employed by and contracted to perform delivery services for the Defendants and was subject to the Defendants’ supervision and control. See id. ¶ 22. Both Perez and Singh were operating vehicles on Interstate 77 near Wilkes-Barre, Pennsylvania. See id. ¶ 49.

Around 10:42 p.m., Perez was rear-ended by Singh. See id. ¶¶ 50–52. Singh was driving too fast for the conditions of the road and this, coupled with Singh’s inattention, caused the crash. See id. ¶¶ 53–54. Singh exhibited a “conscious disregard” for the health and safety of the public by operating his vehicle at dangerously high speeds. See id. ¶ 56. Singh was distracted by his cell phone in the moments preceding and during the crash. See id. ¶ 57.

At the time of the crash, Singh violated the Federal Motor Carrier Safety Administration’s (“FMCSR”) hours of service limits but chose to operate his vehicle in a fatigued condition. See id. ¶ 61. Defendants participated in, knew of, or should have known that Singh was operating over hours and driving while fatigued and otherwise operating the vehicle in an unsafe, dangerous, and reckless condition. See id. ¶ 62. Additionally, Singh had an unsafe history of motor vehicle and criminal violations and that the Defendants knew, or should have known, that Singh failed to list his prior violations on his employment application. See id. ¶ 65. Defendants also knew Singh had a propensity for drug, alcohol, vehicle, and criminal violations yet continued to employ him as a driver. See id. ¶¶ 65-73.

In December 2019, Perez filed a praecipe to issue writ of summons against Penske Pennsylvania in the Philadelphia County Court of Common Pleas as to Penske Pennsylvania. See Phil. Docket, ECF 1-4. The parties engaged in approximately ten months of pre-complaint discovery. Then, on October 9, 2020, Perez filed a Complaint in the Philadelphia County Court of Common Pleas against Defendants Penske Canada, Penske Pennsylvania, and Wheel King Transhaul, Inc. (“Wheel King”). See id.; Compl. The Complaint alleges that the Defendants were negligent/reckless in hiring, retaining, and supervising Singh and vicariously liable for accident caused by Singh. See id. Perez served the Complaint on Penske Pennsylvania the same day it was filed. See Not. Removal ¶ 23, ECF 1. Perez served Wheel King on October 30, 2020. See Proof of Service 4-7, ECF No. 11. On November 9, 2020, Perez served the Summons and Complaint on Penske Canada.2 See id. at 3.

*2 Also on November 9, 2020, Penske Pennsylvania removed the suit to federal court based on diversity jurisdiction3 under a theory of fraudulent joinder. See Notice of Removal, ECF 1. Penske Pennsylvania alleges that Perez fraudulently joined it to defeat diversity. See id. In support of its removal, Penske Pennsylvania attached a declaration of noninvolvement asserting the following:
Penske Logistics, LLC did not own, operate, maintain, control, lease, or assign the tractor-trailer driven by Singh at the time of the accident, nor did it pay for the shipping or transportation of the load being transported by Singh at the time of the accident…never hired, supervised or retained Singh…has no contract or other employment relationship with Singh…never consented to Singh’s operation of the tractor-trailer, nor did it receive a financial benefit from Singh’s operation of the tractor-trailer… did not select any equipment or entities used to transport the load being transported by Singh…never selected Wheel King as the carrier for the load transported by Singh at the time of the accident…exercised no control over dispatching of the tractor-trailer driven by Singh at the time of the accident… had no contractual right to and exercised no control over the transportation or routing of the load in question…never accepted responsibility for transporting the shipment being transported by Singh at the time of the accident…was not the motor carrier for the shipment being transported by Singh at the time of the accident.
See Declaration of Noninvolvement ¶¶ 10–19, ECF 1–3.

On June 9, 2021, Penske Canada moved to dismiss for lack of jurisdiction and failure to state a claim. See Mot. to Dismiss, ECF 16. Penske Canada alleges that service was improper and thus the case should be dismissed for lack of jurisdiction. Id. Additionally, Penske Canada asserts that Perez’s claims are preempted by the Federal Aviation Administration Authorization Act (“FAAAA”) and should be dismissed. Id.

III. LEGAL STANDARDS

A. Motion to Remand – Review of Applicable Law
Under 28 U.S.C. § 1441(a), a defendant may remove “any civil action brought in a state court of which the district courts of the United States have original jurisdiction…to the district court of the United States for the district and division embracing the place where such action is pending.” See also 28 U.S.C. § 1446. “The federal removal statute, 28 U.S.C. § 1441, is strictly construed, requiring remand if any doubt exists over whether removal was proper.” Carlyle Inv. Mgmt. LLC v. Moonmouth Co. SA, 779 F.3d 214, 218 (3d Cir. 2015). “The party seeking removal carries the burden of proving that removal is proper.” Id. at 218.

After an action is removed, a plaintiff may challenge removal by moving to remand the case back to state court pursuant to 28 U.S.C. § 1447. “A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a).” 28 U.S.C. § 1447(c).

B. Fraudulent Joinder – Review of Applicable Law
*3 The doctrine of fraudulent joinder is an exception to the requirement that when removal depends on diversity of citizenship, there must be complete diversity between the parties. See In re Briscoe, 448 F.3d 201, 215-16 (3d Cir. 2006). Under this doctrine, “[i]n a suit with named defendants who are not of diverse citizenship from the plaintiff, the diverse defendant may still remove the action if it can establish that the non-diverse defendants were ‘fraudulently’ named or joined solely to defeat diversity jurisdiction.” Id. at 216.

A removing defendant alleging fraudulent joinder bears a “heavy burden of persuasion.” Boyer v. Snap-on Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990). To establish a defendant was fraudulently joined, the removing party must show “there is no reasonable basis in fact or colorable ground supporting the claim against the joined defendant, or no real intention in good faith to prosecute the action against the defendant or seek a joint judgment.” Id. (citation omitted). A claim is colorable so long as it is not “wholly insubstantial and frivolous.” Batoff v. State Farm Ins. Co., 977 F.2d 848, 852 (3d Cir. 1992). This Court has explained that “[i]f there is even a possibility that a state court would find that the complaint states a cause of action against any one of the resident defendants, the federal court must find that joinder was proper and remand the case to state court.” Boyer, 913 F.2d at 111 (citation omitted); see also Sherfey v. Johnson & Johnson, No. 12-4162, 2014 U.S. Dist. LEXIS 10690, 2014 WL 715518, at *6 (E.D. Pa. Jan. 29, 2014) (noting a finding of fraudulent joinder “is usually reserved for situations where recovery from the nondiverse defendant is a clear legal impossibility” (citation omitted)).

A court may “look to more than just the pleading allegations to identify indicia of fraudulent joinder.” In re Briscoe, 448 F.3d at 219; see also Abels v. State Farm Fire & Cas. Co., 770 F.2d 26, 29 (3d Cir. 1985). The Third Circuit has explained that, when conducting a jurisdictional analysis, there is “no reason to preclude a district court from a limited consideration of reliable evidence that the defendant may proffer to support the removal.” In re Briscoe, 448 F.3d at 220. “Such evidence may be found in the recording from prior proceedings . ..or in other relevant matters that are properly subject to judicial notice.” Id. Courts in this district have looked to affidavits discussing a party’s involvement in the case to determine whether it was fraudulently joined. See Weaver v. Conrail, Inc., Civ. Act. No. 09–5592, 2010 WL 2773382, at *7, *9 (E.D. Pa. July 13, 2010) (holding that, under In re Briscoe, the court could properly consider an affidavit stating that certain defendants had absolutely no control or right to say how particular trains were run at the time of plaintiff’s accident); In re Diet Drugs (Phentermine/ Fenfluramine/ Dexfenfluramine) Prods. Liab. Litig., MDL No. 1203, 2009 WL 3595633, at *2 (E.D. Pa. Oct. 27, 2009) (finding sales representatives were fraudulently joined based in part on an affidavit disclaiming any knowledge of the alleged dangers associated with the product).

In conducting its analysis, this Court must accept as true all factual allegations of the complaint and must “resolve any uncertainties as to the current state of controlling substantive law in favor of the plaintiff.” Batoff, 977 F.2d at 851-52. If the court “determines that it does not have subject-matter jurisdiction over the removed action because the joinder was not fraudulent, it must remand to state court.” In re Briscoe, 448 F.3d at 215–16 (citing 28 U.S.C. § 1447(c)). Conversely, if the court determines that the joinder was fraudulent, “the court can disregard, for jurisdictional purposes, the citizenship of certain nondiverse defendants, assume jurisdiction over a case, dismiss the nondiverse defendants, and thereby retain jurisdiction.” Id. at 216 (internal citations omitted).

C. Motion to Dismiss Rule 12(b)(5) – Review of Applicable Law
*4 Under Rule 12(b)(5), a defendant may move to dismiss when a plaintiff fails to properly serve him or her with the summons and complaint. See Fed. R. Civ. P. 12(b)(5). In a Rule 12(b)(5) motion, “the party making the service has the burden of demonstrating validity when an objection to the service is made.” Suegart v. U.S. Customs Serv., 180 F.R.D. 276, 278 (E.D. Pa. 1998). Rule 4 of the Federal Rules of Civil Procedure outlines, inter alia, the contents of the summons, the time for service, and the proper methods of service. “Good faith reliance on the apparent authority of an individual to accept service on behalf of a business can satisfy the [service] requirement.” Meoli v. Message Ctr. USA, No. 96-CV-7469, 1998 WL 717418, at *1 (E.D. Pa. Sept. 25, 1998) (citing Ayres v. Jacobs & Crumplar, P.A., Civ. A. No. 94–658–SLR, 1995 WL 704781, at *3 (D. Del. Nov. 20, 1995), aff’d, 99 F.3d 565 (3d Cir. 1996)). For these reasons, when addressing a motion to dismiss pursuant to Rule 12(b)(5) for insufficient service, this Court has “broad discretion.” See Umbenhauer v. Woog, 969 F.2d 25, 30 (3d Cir. 1992).

D. Motion to Dismiss Rule 12(b)(6) – Review of Applicable Law
Under Rule 12(b)(6), the court must “accept all factual allegations as true [and] construe the complaint in the light most favorable to the plaintiff.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)) (internal quotation marks omitted). Only if “the ‘[f]actual allegations…raise a right to relief above the speculative level’ ” has the plaintiff stated a plausible claim. Id. at 234 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Id. “In deciding a Rule 12(b)(6) motion, a court must consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the complainant’s claims are based upon these documents.” Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010). Additionally, “a document integral to or explicitly relied upon in the complaint may be considered.” In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (internal quotations omitted). The defendant bears the burden of proving that a plaintiff has failed to state a claim upon which relief can be granted. See Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005) (citing Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)).

E. FAAAA Preemption – Review of Applicable Law
In Bedoya v. American Eagle Express Inc., the Third Circuit articulated a four-part inquiry to determine whether preemption by the FAAAA is appropriate. 914 F.3d 812 (3d Cir. 2019):

(1). First, courts should examine “whether the state law at issue applies to all businesses or whether it focuses on motor carriers.” Id. at 818. Laws directed at “members of the general public” that are not targeted at motor carriers are viewed as not having a direct effect on motor carriers. See Rowe v. New Hampshire Motor Transp. Ass’n, 552 U.S. 364, 375 (2008). If the state law at issue applies to all businesses, then it is not preempted. See Ciotola v. Star Transp. & Trucking LLC, 481 F. Supp. 3d 375 (M.D. Pa. 2020).

(2). Second, courts should consider “whether the law addresses the carrier-employee relationship as opposed to the carrier-customer relationship.” Bedoya, 914 F.3d at 821. Courts must assess whether the challenged law’s impact on prices, routes, or services, although indirect, is nevertheless “significant” rather than “tenuous, remote, or peripheral.” Id.

*5 (3). Third, courts should consider whether the law binds the carrier to provide a particular price, route, or service.

(4). Fourth, courts should consider Congress’ goal of avoiding a “patchwork” of differing state “service-determining laws,” which could undermine its “major legislative effort to leave [decisions regarding the provision of services] to the competitive marketplace.” Id. at 823 (citing Rowe, 552 U.S. at 373).

IV. ANALYSIS

A. Perez’s Motion to Remand is denied.
Penske Pennsylvania timely removed the Complaint to this Court on the basis of diversity jurisdiction. The diversity jurisdiction statute provides: “district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between…citizens of different States and in which citizens or subjects of a foreign state are additional parties.” 28 U.S.C. § 1332(a)(2). Although the amount in controversy here exceeds the jurisdictional sum and the parties are diverse, the removal statute qualifies that a “civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title [28 USCS § 1332(a)] may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” 28 U.S.C. § 1441(b)(2). To avoid this limitation, Penske Pennsylvania alleges that it was not properly joined to this action.

To determine whether Penske Pennsylvania was fraudulently joined, this Court must determine whether Perez has a reasonable basis in fact or colorable ground supporting the vicarious liability and negligent/reckless hiring, retention and supervising claims brought against Penske Pennsylvania. See Boyer, 913 F.2d at 111. To establish vicarious liability, “a plaintiff must show that the employee’s conduct: (1) is of a kind and nature that he is employed to perform; (2) occurs substantially within the authorized time and space limits designated by his employer; and (3) is driven by a desire to serve the employer.” Schloss v. Sears Roebuck & Co., No. CIV.A. 04-CV-2423, 2005 WL 433316, at *2 (E.D. Pa. Feb. 24, 2005) (citing Costa v. Roxborough Mem’l Hosp., 708 A.2d 490, 493 (Pa. Super. Ct. 1998)). To establish a claim for negligent/reckless in hiring, retention, and supervising a plaintiff must show that an employer was “negligent or reckless ‘in the employment of improper persons or instrumentalities in work involving risk of harm to others;…in the supervision of the activity; or…in permitting, or failure to prevent, negligent or other tortious conduct by persons, whether or not his servants or agents, upon premises or with instrumentalities under his control.’ ” Doe v. Liberatore, 478 F. Supp. 2d 742, 760 (M.D. Pa. 2007) (citing R.A. ex rel. N.A. v. First Church of Christ, 748 A.2d 692, 697 (Pa. Super. Ct. 2000)). See also Doe v. Schneider, 667 F. Supp. 2d 524, 531 (E.D. Pa. 2009). If this can be shown, then “an employer is subject to liability for harm resulting from” his employee’s conduct.” Doe, 478 F. Supp. 2d at 760 (citing R.A. ex rel. N.A., 748 A.2d at 697).

*6 In his Complaint, Perez refers to Penske Pennsylvania and Penske Canada collectively. See Compl. ¶ 10. The Complaint does not include a single factual allegation directly against Penske Pennsylvania. See generally id. The Complaint also makes numerous allegations against all three Defendants in the collective. See, e.g. ¶ 15. In sharp contrast, Kresten Hansen’s declaration of noninvolvement, which was offered by Penske Pennsylvania, outlines, in great detail, Penske Pennsylvania’s lack of involvement in this case. See Declaration of Noninvolvement ¶¶ 10–19, ECF No. 1-3. This declaration states that Penske Pennsylvania “did not own, operate, maintain, control, lease, or assign the tractor-trailer driven by Singh at the time of the accident, nor did it pay for the shipping or transportation of the load being transported by Singh at the time of the accident.” See id. ¶ 10. The declaration states that Singh was never an employee of, or supervised by, Penske Pennsylvania, nor was there any contract or other relationship between the two. Id. ¶ 12. Hansen declares that Penske Pennsylvania never consented to Singh’s operation of the tractor-trailer, did not receive a financial benefit therefrom, did not select any equipment or entities used to transport the load being transported by Singh, and exercised no control over dispatching of the tractor-trailer driven by Singh at the time of the accident or over the transportation or routing of the load in question. See id. ¶¶ 13-19. The declaration further provides that Penske Pennsylvania never hired or had any contractual relationship with Wheel King. See id. The declaration states that Penske Canada owned the trailer and arranged for transportation of the load. See id. ¶¶ 4-12.

Perez asks the Court not to rely on this allegedly self-serving4 declaration in making its fraudulent joinder analysis. Significantly, however, Perez attached an earlier affidavit from Hansen, dated March 11, 2020, to his Complaint. See Hansen Aff., Compl. at Ex. B, ECF No. 1-2. This affidavit also attested that Penske Pennsylvania did not tender the load being shipped at the time of the crash to Wheel King, nor was it aware of, or did it enter into, any transportation agreements or contracts for the same. See Hansen Aff. ¶¶ 10-11, 21. Perez therefore relied on Hansen’s affidavit when it suited him but asks the Court not to do so now. Notably, it was after receiving the March affidavit and conducting approximately ten months of discovery that Perez sought to name Penske Canada and Wheel King as Defendants. Accordingly, its pre-complaint discovery, which included the accident report listing the owner’s name of the vehicle driven by Singh as Penske Canada, not Penske Pennsylvania, see Police Report, ECF No. 1-4, apparently convinced Perez that Penske Canada is a proper defendant.

Even now, in opposition to the Motion to Remand, Perez offers no additional factual allegations to support its claims against Penske Pennsylvania. Instead, Perez provides “snapshots” of Penske Pennsylvania’s website, which do little more than list its address and nature of business. Perez also suggests that he has stated a claim because he “devoted thirteen (13) paragraphs in his Complaint laying out the controlling case law pertaining to Penske qualifying as a motor carrier.” See Brief Supp. Mot. Remand 5, ECF No. 7-1 (citing Compl. ¶¶ 81-93). However, these thirteen paragraphs contain no specific factual allegations against Penske Pennsylvania and, in fact, support a finding of fraudulent joinder. Specifically, the Complaint, citing Eleventh Circuit case law, alleges that “in determining whether a party is a carrier or a broker, the crucial question is whether the party has legally bound itself to transport goods by accepting responsibility for ensuring the delivery of the goods.” Compl. ¶ 86. The Complaint asserts that “because Penske5 accepted responsibility for transporting this shipment, it was a carrier at all relevant times hereto.” See id. ¶ 90. However, both Hansen affidavits, one of which was known to Perez at the time of filing and attached to the Complaint, states that Penske Pennsylvania took no responsibility for the load being transported at the time of the crash. See Declaration of Noninvolvement ¶¶ 10, 13-20; Hansen Aff. ¶¶ 11, 19-20.

*7 While the Court must accept the factual allegations of the Complaint as true, the allegations against Penske are made solely in the collective and do not carry any reasonable inference of Penske Pennsylvania’s involvement, especially in light of Hansen’s affidavit. See Avicolli v. Bj’s Wholesale Club, No. 21-1119, 2021 U.S. Dist. LEXIS 53104, at *11 (E.D. Pa. Mar. 22, 2021) (holding that although the court must accept “well-plead allegations as true, we are not required to blindly accept conclusory allegations which attempt to attach responsibility to a [defendant]” (distinguishing Gaynor v. Marriott Hotel Servs., No. 13-3607, 2013 U.S. Dist. LEXIS 113829 (E.D. Pa. Aug. 13, 2013))). Based on Hansen’s declaration of noninvolvement, recovery from Penske Pennsylvania is a “clear legal impossibility.” See Sherfey, 2014 WL 715518, at *6; Boyer, 913 F.2d at 111. Because there is no reasonable basis in fact or colorable ground supporting the claim against Penske Pennsylvania, the Court finds that Penske Pennsylvania was fraudulently joined and is dismissed. Consequently, the Court has jurisdiction and Perez’s motion to remand is denied.6

B. Penske Canada’s 12(b)(5) Motion to Dismiss is denied.
Penske Canada alleges it was improperly served by Perez. For that reason, Penske Canada has moved to dismiss for lack of jurisdiction pursuant to Rule 12(b)(5).

Rule 4 of the Federal Rules of Civil Procedure provides:
Unless federal law provides otherwise or the defendant’s waiver has been filed, a . ..foreign corporation…must be served…in a judicial district of the United States…by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by
law to receive service of process and—if the agent is one authorized by statute and

the statute so requires—by also mailing a copy of each to the defendant.” See Fed. R. Civ. P. 4(h)(1)(B). Under Rule 4, “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made” also constitutes proper service of a foreign corporation. See Fed. R. Civ. P. 4(e)(1) and 4(h)(1)(A).

Pennsylvania Rule of Civil Procedure 424 provides that service upon a corporation “shall be made by handing a copy to any of the following persons provided the person served is not a plaintiff in the action:…the manager, clerk or other person for the time being in charge of any regular place of business or activity of the corporation….” Pa. R. Civ. P. 424(2). “Good faith reliance on the apparent authority of an individual to accept service on behalf of a business can satisfy the requirement.” Meoli v. Message Ctr. USA, 1998 WL 717418, at *1 (citing Ayres, 1995 WL 704781, at *3). In “adopting Rule 424, the Pennsylvania Supreme Court did not intend to burden Pennsylvania plaintiffs with the inconvenience and increased costs of requiring hand delivery of process to corporations found outside the Commonwealth.” City of Allentown v. O’Brien & Gere Engineers, Inc., No. CIV. A. 94-2384, 1995 WL 380019, at *7 (E.D. Pa. June 26, 1995) (explaining: “that in adopting Rule 424, the Pennsylvania Supreme Court did not intend to burden Pennsylvania plaintiffs with the inconvenience and increased costs of requiring hand delivery of process to corporations found outside the Commonwealth” (citing Trzcinski v. Prudential, 597 A.2d 687 (Pa. Super. 1991))).

*8 In the instant action, the Berks County Sheriff’s Office served Penske Canada at its business location in Reading, Pennsylvania on November 9, 2020. See Proof of Service 3. The Sheriff served an individual who accepted service as the “adult person in charge” for Penske Canada. Id. This satisfied the federal and state service rules. Further, Perez had a good faith reliance that the individual served at Penske Canada’s business, who represented himself as an “adult in charge” capable of receiving service of process for Penske Canada, had the authority to accept service. See Proof of Service 3. Therefore, Penske Canada’s motion to dismiss based on improper service is denied.7

C. Penske Canada’s 12(b)(6) Motion to Dismiss is denied.
Penske Canada has moved to dismiss Perez’s claims alleging they are preempted by the FAAAA and should be dismissed under Federal Rule of Civil Procedure 12(b)(6).

Under the first step of the Third Circuit’s four-part inquiry outlined in Bedoya, this Court must determine whether the state law at issue applies to all businesses or whether it focuses on motor carriers. If the law at issue applies to all businesses, then Perez’s claims are not preempted by the FAAAA. Applying the reasoning in Bedoya, the United States District Court for the Middle District of Pennsylvania in Ciotola v. Star Transp. & Trucking LLC, held that a plaintiff’s claims were not preempted by the FAAAA. See 481 F. Supp. 3d 375 (M.D. Pa. 2020). In Ciotola, the court explained:
The Third Circuit’s reasoning in Bedoya that although a state law may have negative financial consequences for a broker or carrier does not mean that the state law should be preempted by the FAAAA is particularly relevant. See Bedoya, 914 F.3d at 822. The above analysis indicates that although Pennsylvania’s tort law may have some negative financial consequences for a broker or carrier, it is not preempted by the FAAAA. Pennsylvania’s tort law is a part of the backdrop of laws that all businesses must follow. Adames v. May Furniture, Inc., 2019 U.S. Dist. LEXIS 206068, 2019 WL 8937042, *8-9 (M.D. Pa. 2019).
Ciotola, 481 F. Supp. 3d at 390.

Similarly here, Perez’s claims are grounded in Pennsylvania tort law. These state laws make up the “backdrop of laws that all business must follow.” Id. Specifically, Perez’s negligence and vicarious liability claims do not arise out of state law solely “focuse[d] on motor carriers.” Bedoya, 914 F.3d at 821. As a result, Perez’s claims are not preempted under Bedoya. Penske Canada’s motion to dismiss pursuant to Rule 12(b)(6) is denied.

V. CONCLUSION
For the reasons outlined above, Perez’s Motion to Remand is denied because Penske Pennsylvania, which was not involved in the events of this case, was fraudulently joined. Penske Pennsylvania is dismissed, this Court has diversity jurisdiction, and the Motion to Remand is denied. Additionally, Penske Canada’s Motion to Dismiss pursuant to Rule 12(b)(5) is denied because Penske Canada was properly served under both the Federal and Pennsylvania Rules of Civil Procedure. Penske Canada’s Motion to Dismiss pursuant to Rule 12(b)(6) is also denied because Perez’s claims are grounded in Pennsylvania tort law, which all businesses are required to follow, and are therefore not preempted by the FAAAA.

*9 A separate order follows.
BY THE COURT:
/s/ Joseph F. Leeson, Jr._______
JOSEPH F. LEESON, JR.

United States District Judge
All Citations
Slip Copy, 2021 WL 3661017

Footnotes

1
In his Complaint, Perez refers to, and makes allegations against, Penske Canada, Penske Pennsylvania, and Wheel King together as “Defendants.” To accurately represent Perez’s pleadings this Court refers to the group as “Defendants” when discussing Perez’s allegations against them.

2
The propriety of this service is discussed in further detail below.

3
Perez is a citizen of Florida. See Compl. ¶ 1. Penske Pennsylvania is a citizen of Delaware, Pennsylvania, Michigan, and Japan. See id. ¶ 2; Not. Removal ¶¶ 15, 17-19. Penske Canada is a citizen of Canada. See Not. Removal ¶ 12. Wheel King is a citizen of Canada. See id. ¶ 11.

4
Because Penske Canada is a wholly owned subsidiary of Penske Pennsylvania, Hansen’s declaration is not necessarily self-serving to the extent it tends to implicate Penske Canada. But see Nobers v. Crucible, Inc., 602 F. Supp. 703, 707 (W.D. Pa. 1985) (“Given the lack of allegations to support piercing the corporate veil, and the precept that a parent corporation is not liable for the contracts of a subsidiary, we hold that plaintiffs have no colorable claim against Colt for breach of the alleged employment contacts.”).

5
Perez’s reference to “Penske” includes both Penske Pennsylvania and Penske Canada, collectively. See Compl. ¶ 10.

6
Although the Court notes that there were procedural defects with the Notice of Removal, Perez waived any such defects by failing to timely raise them in the Motion to Remand. See 28 U.S.C. § 1447(c) (providing that a party must raise any defect other than lack of subject matter jurisdiction within 30 days of removal); Ramos v. Quien, 631 F. Supp. 2d 601, 608 (E.D. Pa. 2008) (explaining that a defendant’s violation of the unanimity rule is a procedural, not jurisdictional, defect in the removal process and is waived if not presented within the thirty day limit imposed by 28 U.S.C. § 1447(c)).

7
Moreover, courts have explained that “[w]hen a party has knowledge of a suit despite improper service and does not appear to be prejudiced because of improper service, the Third Circuit has approved relaxation of the Rule 4 requirements.” Gustavson v. Vito, No. CIV. A. 89- 1944, 1989 WL 89217, at *4 (E.D. Pa. Aug. 2, 1989) (citing Dominic v. Hess Oil V.I. Corp., 841 F.2d 513 (3d Cir. 1988)). The same day Perez effectuated service on Penske Canada at the Reading property, counsel for Penske Canada entered his appearance on behalf of Penske Pennsylvania and removed the suit to this Court. See Notice of Removal. These actions indicate Penske Canada’s knowledge of Perez’s suit against it. Accordingly, Penske Canada was on notice of the claims filed against it and was not prejudiced by Perez’s method of service.

2021 WL 3682906

United States District Court, S.D. New York.
BENJAMIN TORRES and CARMEN Y. VASQUEZ, Plaintiffs,
v.
BALDE THIERNO MAMADOU, SARGEANT LOGISTICS, INC., VLAD TRANSPORTATION, INC., NEW ENGLAND EXPRESS INC. AND JOHN DOES 1-10 (said names being fictitious and unknown) and/or ABC CORPS. 1-10 (said names being fictitious and unknown), Defendants.
CIVIL ACTION NO. 19 Civ. 6973 (SLC)
|
Filed 08/19/2021

OPINION AND ORDER
SARAH L. CAVE United States Magistrate Judge

I.INTRODUCTION
*1 Plaintiffs Benjamin Torres and his wife, Carmen Y. Vasquez (“Plaintiffs”), filed this action, alleging that Defendants’ negligence caused a motor vehicle accident that resulted in personal injury. (ECF No. 17). The Complaint asserts, on behalf of Torres, negligence claims against Defendants Balde Thierno Mamadou, who was the driver of the vehicle that rear-ended Torres’s vehicle, as well as Sargent Logistics, Inc. (“Sargent”), Vlad Transportation Services, Inc. (“Vlad”), and New England Express, Inc. (“NE Express”), and a loss of consortium claim on behalf of Vasquez. (Id.)

Torres now moves for summary judgment as to Mamadou and Sargent’s liability on his claims.1 (ECF No. 59 (the “Motion”). For the reasons set forth below, the Motion is DENIED.

II.BACKGROUND
As an initial matter, the Court notes that the parties have not complied with Rule 56.1 of the Local Civil Rules of the United States District Courts for the Southern and Eastern Districts of New York (“Local Rule 56.1”), which requires that a party moving for summary judgment submit “a separate, short and concise statement” of the allegedly undisputed material facts, set out in numbered paragraphs, on which the moving party relies in arguing that there is no genuine issue to be tried. See Local Rule 56.1(a). The purpose of this rule “is to streamline the consideration of summary judgment motions by freeing district courts from the need to hunt through voluminous records without guidance from the parties.” Holtz v. Rockefeller & Co., 258 F.3d 62, 74 (2d Cir. 2001). “Although the failure to file a Rule 56.1 Statement is, on its own, grounds for dismissal of a motion for summary judgment … district courts have ‘broad discretion to determine whether to overlook a party’s failure to comply with local court rules[.]’ ” Osuna v. Gov’t Emp. Ins. Co., No. 11 Civ. 3631 (JFB) (AKT), 2014 WL 1515563, at *2 (E.D.N.Y. Apr. 17, 2014) (quoting Holtz, 258 F.3d at 73); see Antwi v. Health & Hum. Sys. (Ctrs.) F.E.G.S., No. 13 Civ. 835 (ER) (FM), 2014 WL 4548619, at *4–5 (S.D.N.Y. Sept. 15, 2014) (denying motion for failure to comply with Rule 56.1). “Where parties fail to file Rule 56.1 statements of fact, the court may choose to accept the factual allegations of the opposing parties as true for purposes of deciding the motion for summary judgment, or may alternately ‘opt to conduct an assiduous review of the record.’ ” United States v. Kadoch, No. 96 Civ. 4720 (CBA), 2012 WL 716899, at *2 (E.D.N.Y. Feb. 17, 2012) (quoting Holtz, 258 F.3d at 73)); see Salus v. Sivan, 534 F. Supp. 2d 430, 431 (S.D.N.Y. 2008) (granting summary judgment to plaintiff notwithstanding her failure to submit Rule 56.1 statement “because there [was] simply no issue [ ] to try”).

*2 Here, the record is not voluminous and is easily reviewable,2 such that the Court has been able to conduct a diligent review of the record notwithstanding the absence of Rule 56.1 statements. While the Court is willing to overlook this particular instance of failure to comply with Rule 56.1, parties are reminded of the importance of compliance with Rule 56.1 and should not expect future lapses to be excused.

A. Factual Background
On April 27, 2017, Torres, a citizen of New Jersey (ECF No. 17 ¶ 1), was employed by non-party “United Road Service as a truck driver operating auto transport carriers and delivering vehicles to different locations.” (ECF No. 59-3 ¶ 2). At 6:30 a.m., he picked up from a terminal in Newark his truck, a Peterbilt 18-wheel tractor trailer, containing a load for transport to Rhode Island. (Id. ¶ 3; ECF No. 59-2 at 26). He left the Newark terminal at 10:30 a.m. and drove northbound on Interstate 95. (ECF No. 59-3 ¶¶ 4–5). When Torres reached the George Washington Bridge at around 11:30 a.m., he “encountered heavy traffic once on the bridge.” (Id. ¶ 5; ECF No. 59-2 at 27). Torres stated that he “did not change lanes at any time while on the George Washington Bridge.” (ECF No. 59-3 ¶ 5). “[A]fter the [George] Washington Bridge, … under the apartments” near the ramp for Interstate 87, Torres came to a “stop in traffic” in the left lane. (ECF Nos. 59-2 at 27; 59-3 ¶¶ 5–7). Again, he asserts that he “did not change lanes at any time.” (ECF No. 59-3 ¶ 6). When he saw the traffic, Torres stopped, with his foot on the brake and his hands on the steering wheel. (ECF No. 59-2 at 30). While Torres was stopped for about five seconds, Mamadou’s vehicle, also a tractor trailer, hit the rear of Torres’ truck. (Id. at 27; ECF No. 59-3 ¶ 7). On impact, Torres’ “hands came off the steering wheel and [his] foot off the … brake.” (ECF No. 59-2 at 30). The force of the impact pushed Torres’ truck about 15 feet forward into the rear of the tractor trailer in front of him. (Id. at 27–28; 59-3 ¶ 8). Before Mamadou’s truck rear-ended his, Torres did not hear screeching tires, crashing metal, or breaking glass. (ECF No. 59-2 at 28, 31).

After the impact, the driver of the truck in front of Torres asked him what happened, to which Torres responded, “I’m sorry, but it wasn’t me.” (ECF No. 59-2 at 28). That driver told Torres, “good luck, I’m outta here.” (Id.) In his Declaration, Torres stated that, after the accident, Mamadou “came out of his vehicle and said that he was sorry and asked if [he] was okay.” (ECF No. 59-3 ¶ 10). During his deposition, however, Torres testified that Mamadou said he was a “first year driv[er] and stuff like that[,]” but did not state that he apologized. (ECF No. 59-2 at 37). Despite waiting for five hours, the police did not arrive at the accident site. (ECF Nos. 59-3 ¶ 11; 59-4 at 8). Mamadou’s vehicle was inoperable and had to be towed from the accident site, but Torres was able to drive his truck. (ECF Nos. 59-3 ¶ 11; 59-4 at 8). Torres did not recall experiencing any pain right after the accident. (ECF No. 59-2 at 37). He began to feel pain in his neck and back the day after the accident, and sought medical treatment about five days later. (Id. at 37–38). He underwent physical therapy and received three injections for the pain in his neck and back. (Id. at 39, 42, 43).

*3 On the date of the accident, Mamadou, a citizen of South Carolina, was driving a Volvo 18-wheel tractor trailer as part of his employment with Sargent. (ECF No. 59-4 at 3, 5–6). That morning, he picked up his load in Clifton, New Jersey, and traveled north on Interstate 95 destined for Bozrah, Connecticut. (Id. at 5–6). He was traveling in the left lane of the George Washington Bridge, when he first saw Torres’ truck traveling in the middle lane. (Id. at 6). While on the Bridge, Torres’ truck moved into the left lane in front of Mamadou. (Id. at 7). Mamadou testified at his deposition that, when they reached the point under the apartments, “[t]here was a traffic jam,” and Torres’ truck “stopped suddenly” about 30 feet in front of him. (Id. at 6–7). Mamadou was traveling 25 to 30 miles per hour at the time, and although he braked “[v]ery hard,” the front of his truck hit the rear of Torres’ truck. (Id. at 7). Mamadou testified at his deposition that his “brakes were working … but [he] just didn’t have time to brake.” (Id. at 10). After the accident, Mamadou called Sargent “straight away.” (Id. at 9). A few days after the accident, Mamadou wrote the following statement in an email to Sargent’s Safety officer:
Thursday 4-27th 2017.
I was driving from New Jersey to Bozrah, CT 06334. I was on I 95 N bound on George Washington Bridge little-bit before exit 1D/C in B[r]onx, NY. I was following a tractor trailer. The driver in front of me Stop[ped] quickly Infront [of] me. I applied both tractor and trailer brakes to avoid h[it]ting him. My brakes did not work. I h[i]t the back of his trailer. No one was injured. I called my company to notify them. My boss told me [to] secure the area and call 911 for help. They send towing to clear the traffic and we exchange[d] our insurance th[e]n we left the area.
That is what I remember about the accident.
Let me know if you have any f[u]rther questions.
Thank[ ] you
Thierno Balde
(ECF No. 59-5).

B. Procedural Background
Plaintiffs filed a summons and complaint in the Supreme Court for the State of New York, New York County, which Defendants then removed to this Court on July 25, 2019 based on diversity jurisdiction. (ECF No. 1 at 1, 8). On August 29, 2019, Plaintiffs filed their Amended Complaint, which also names as Defendants “John Does 1-10,” in reference to the owners or managers of Sargent, Vlad, and NE Express. (ECF No. 17 ¶¶ 6, 14, 22). The caption also includes “ABC Corps. 1-10,” but the Complaint contains no allegations to shed light on who these purported entities might be. (Id.) Vlad and NE Express have not appeared in this action. Plaintiffs, Mamadou, and Sargent consented to Magistrate Judge jurisdiction for all purposes. (ECF Nos. 29, 30).

On January 7, 2021, Plaintiffs filed the Motion. (ECF No. 59). On January 22, 2021, Mamadou and Sargent filed their Opposition. (ECF No. 62).

III.DISCUSSION

A. Legal Standards
1. Summary judgment
Summary judgment must be granted when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). There is no genuine issue of material fact when “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party[.]” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The Court must “construe the evidence in the light most favorable to the non-moving party and to draw all reasonable inferences in its favor.” Trammell v. Keane, 338 F.3d 155, 161 (2d Cir. 2003). “The party seeking summary judgment bears the burden of demonstrating the absence of any genuine factual dispute.” Astorga v. Allstate Oil Recovery, Co., No. 16 Civ. 5068 (SN), 2018 WL 1441377, at *1 (S.D.N.Y. Mar. 22, 2018) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986)).

If the non-moving party “fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial[,]” summary judgment will be granted. Celotex, 477 U.S. at 322–23. To defeat summary judgment, the non-moving party must do more than demonstrate “some metaphysical doubt as to the material facts,” Matsushita, 475 U.S. at 586, and may not rely on “conclusory allegations.” Twin Labs., Inc. v. Weider Health & Fitness, 900 F.2d 566, 568 (2d Cir. 1990). Similarly, “[t]he fact that opposing parties assert competing versions of the same event is not in itself sufficient to preclude summary judgment.” Krynski v. Chase, 707 F. Supp. 2d 318, 322 (E.D.N.Y. 2009). Rather, “[c]ontradictory testimony establishes a ‘genuine’ issue for trial only where the conflicting testimony, if credited, would lead to a different legal outcome.” Id.

2. Negligence
*4 This action arises under the Court’s diversity jurisdiction, (ECF No. 17 ¶¶ 1–7), and therefore, “state substantive law controls.” Astorga, 2018 WL 1441377, at *1 (citing DeWeerth v. Baldinger, 38 F.3d 1266, 1272 (2d Cir. 1994)). The accident occurred in New York, and therefore, New York law applies. Id.

“Under New York law, a plaintiff seeking to prove negligence ‘must demonstrate the existence of a duty, the breach of which may be considered the proximate cause of the damages suffered by the injured party.’ ” Astorga, 2018 WL 1441377, at *2 (quoting Becker v. Schwartz, 46 N.Y.2d 401, 410 (1978)). “Under New York law, a rear-end collision establishes a prima facie case of liability against the rear vehicle and imposes a duty of explanation on the operator of that vehicle.” Krynski, 707 F. Supp. 2d at 322 (collecting cases). That duty exists because “when the driver of an automobile approaches another automobile from the rear, he or she is bound to maintain a reasonably safe rate of speed and control over his or her vehicle, and to exercise reasonable care to avoid colliding with the other vehicle.” Chepel v. Meyers, 306 A.D.2d 235, 236 (2d Dep’t 2003). New York Vehicle and Traffic Law § 1129 provides that “[t]he driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway.” N.Y. Veh. & Tr. L. § 1129(a).

“ ‘A defendant can overcome the presumption of negligence by providing a non-negligent explanation for the collision.’ ” Polonia v. Dunphy, No. 11 Civ. 1563 (CM), 2012 WL 2376467, at *4 (S.D.N.Y. June 21, 2012) (quoting Krynski, 707 F. Supp. 2d at 323). “ ‘If the operator cannot come forward with any evidence to rebut the inference of negligence, the plaintiff may properly be awarded judgment as a matter of law.’ ” Krynski, 707 F. Supp. 2d at 323 (quoting Barile v. Lazzarini, 222 A.D.2d 635, 636 (2d Dep’t 1995)). Non-negligent explanations include “ ‘mechanical failure, unavoidable skidding on wet pavement, a sudden stop of the vehicle ahead, or any other reasonable cause.’ ” Id. (quoting Altman v. Bayliss, No. 95-CV-0734E, 1999 WL 782338, at *2 (W.D.N.Y. Sept. 30, 1999)). Courts have held that “generally a sudden stop may rebut the presumption of negligence only when it is unexpected.” Astorga, 2018 WL 1441377, at *2 (comparing Niemiec v. Jones, 237 A.D.2d 267, 268 (2d Dep’t 1997) (“Where a defendant contends that the vehicle in front of him came to an unexplained sudden stop, questions of fact are raised that should be submitted to the jury.”) and Forget v. Smith, 39 A.D.3d 1127 (3d Dep’t 2007) (finding that presumption was rebutted because sudden stop for deer in road was unexpected) with Hong v. Maher, No. 02 Civ. 7825 (RWS), 2004 WL 771127, at *3 (S.D.N.Y. Apr. 13, 2004) (finding that presumption was not rebutted because stopped cars in lane made stop foreseeable); Krynski, 707 F. Supp. 2d at 323 (finding that presumption was not rebutted because sudden stops are foreseeable in heavy traffic); and Robayo v. Aghaabdul, 109 A.D.3d 892, 893 (2d Dep’t 2013) (finding that presumption was not rebutted where sudden stop came after switching lane in heavy traffic)). “Conclusory allegations of a sudden and unexpected stop are insufficient to rebut the inference of negligence created by the unexplained rear-end collision.” Moskovitz v. Dean, No. 99 Civ. 6085 (TPG), 2001 WL 1442674, at *1 (S.D.N.Y. Nov. 15, 2001); see Norman v. Scott, No. 99 Civ. 3067 (MBM) (JCF), 2000 WL 37995, at *2 (S.D.N.Y. Jan. 14, 2000) (“[T]he mere fact that the lead vehicle stopped short is not sufficient to relieve the operator of the following vehicle from liability.”).

*5 Where the owner of a vehicle gave permission to the operator to drive the vehicle, “the owner is vicariously liable for injuries resulting from the negligent use of that vehicle.” McDuffie v. Wilner, 415 F. Supp. 2d 412, 419 (S.D.N.Y. 2006) (citing N.Y. Veh. & Tr. L. § 388(1)). “An employer is also vicariously liable under the doctrine of respondeat superior for injuries resulting from the negligence of employees acting within the scope of their employment.” Id.; see Krynski, 707 F. Supp. 2d at 328–29 (noting that defendant who both owned the vehicle and employed driver was liable for driver’s negligence under N.Y. Veh. & Tr. L. § 388 and respondeat superior).

B. Application
1. Mamadou’s liability
The Court finds that Torres has made out a prima facie case of Mamadou’s negligence based on the fact that Mamadou’s truck struck his truck from the rear. See Krynski, 707 F. Supp. 2d at 322. The question becomes, then, whether Mamadou has rebutted that presumption. See Polonia, 2012 WL 2376467, at *4 (“A defendant can overcome the presumption of negligence by providing a non-negligent explanation for the collision.”). The Court finds that questions of material fact exist as to whether Mamadou’s negligence was the sole cause of the accident, and, therefore, summary judgment on the question of Mamadou’s liability for negligence is inappropriate. See DeCosmo v. Hulse, 204 A.D.2d 953, 955 (3d Dep’t 1994) (affirming denial of summary judgment where defendant “established a triable issue that the rear-end collision was not solely a result of his negligence”).

As noted above, a sudden stop may rebut the presumption of negligence if the stop was unexpected. See Astorga, 2018 WL 1441377, at *2. Some courts have held that drivers should anticipate sudden stops in heavy traffic. See id. at *3; Leal v. Wolff, 224 A.D.2d 392, 394 (2d Dep’t 1996). In this case, however, there is a dispute about whether Torres changed lanes before he suddenly stopped in front of Mamadou (see supra, § II.A), in which case Mamadou might not have been expected to anticipate the stop. See Marrero v. Air Brook Limousine, No. 13 Civ. 2791 (CM), 2014 WL 1623706, at *4–5 (S.D.N.Y. Apr. 23, 2014) (granting summary judgment for defendants where plaintiff’s vehicle made sudden lane change before rear-end collision); Ortiz v. Rosner, 817 F. Supp. 348, 352 (S.D.N.Y. 1993); Rodriguez v. Titus Leasing Co., 34 Misc. 3d 1221A, at *3 (N.Y. Sup. Ct. Queens Cnty. Feb. 7, 2012) (same); Rosa v. Colonial Transit, Inc., 276 A.D.2d 781, 781 (2d Dep’t 2000) (affirming denial of summary judgment where “a triable issue of fact exists as to whether the driver of the stopped bus … contributed to the accident by making a sudden stop”). In addition, it is a factual question for a jury whether Mamadou’s maintenance of 30 feet in front of him while traveling at 25 to 30 miles per hour (ECF No. 59-4 at 6–7) was reasonable. See Munoz v. 640, LLC, No. 19 Civ. 5751 (BMC), 2021 WL 1176168, at *2 (E.D.N.Y. Mar. 29, 2021) (denying summary judgment where parties’ diverging stories of their speed and distance demonstrated disputed material facts and a reasonable jury could find that defendant “maintained a safe distance behind plaintiffs’ vehicle and did not expect a sudden stop …”); Rosner, 817 F. Supp. at 352–53 (denying summary judgment where jury could find that plaintiff’s sudden stop “could have been unforeseeable and could have occurred without warning to the defendant”); Martin v. Pullafico, 272 A.D.2d 305, 305 (2d Dep’t 2000) (affirming denial of summary judgment where there were “triable issues of fact as to whether the individual defendant failed to maintain a safe distance and whether the plaintiffs’ vehicle stopped suddenly, thereby contributing to the accident”). Torres offers no support for his assertion that Mamadou “left insufficient space between his vehicle and [Torres’] [vehicle]” to stop once Mamadou saw that Torres was stopped in front of him. (ECF No. 64 at 6). Rather, a jury could find that, under the circumstances, Mamadou had not “failed to use reasonable care to avoid the collision.” Marrero, 2014 WL 1623706, at *4. Accordingly, the Court finds that Mamadou, through his deposition testimony, has provided a non-negligent explanation for his rear-end accident with Torres’ vehicle, and material disputes of fact must be resolved by a jury.

2. Sargent Logistics’ liability
*6 It is undisputed that Mamadou was employed by Sargent at the time of the accident. (ECF Nos. 8 ¶ 7; 59-4 at 5). Because Torres has failed to show the absence of a genuine issue of material fact as to Mamadou’s negligence, however, he has also failed to establish Sargent’s liability as a matter of law. See Munoz, 2021 WL 1176168, at *2 (denying plaintiffs’ motion for summary judgment as to both individual defendant and employer in light of disputed material facts as to parties’ respective negligence); Rosner, 817 F. Supp. at 353 (denying plaintiffs’ motion for summary judgment as to both individual defendant and his employer where genuine issues of material fact existed as to cause of accident); Rodriguez, 34 Misc. 3d 1221A, at *3 (denying plaintiff’s motion for summary judgment as to both individual defendant and his employer where triable issues of fact existed as to plaintiff’s role in the accident).

3. Other Defendants’ liability
The docket does not reflect that Plaintiffs have effected service on Vlad or NE Express, nor has either of these Defendants appeared in this action. In addition, in the Motion, Plaintiffs do not present any grounds on which to hold Vlad or NE Express liable. Accordingly, the Court makes no finding as to the liability of Vlad or NE Express.

IV.CONCLUSION
For the reasons set forth above, Torres’ Motion is DENIED.

In accordance with the Court’s Individual Practices in Civil Cases (the “Court’s Practices”), by Thursday, September 16, 2021, the parties shall jointly file:
(i) A Joint Pretrial Order (“JPTO”);
(ii) Proposed Jury Instructions;
(iii) Proposed voir dire questions;
(iv) A proposed special verdict firm.

By Thursday, September 16, 2021 the parties shall file any motions in limine.

The parties must comply with the Court’s Practices concerning the format and content of these submissions.

A final pretrial conference is scheduled for Wednesday, October 13, 2021 at 2:00 pm in-person, in Courtroom 18A, 500 Pearl Street, New York, New York. Trial counsel shall attend the final pretrial conference.

SO ORDERED.

All Citations
Slip Copy, 2021 WL 3682906

Footnotes

1
Torres’ Motion does not refer to Vasquez’s claim, or to Vlad and NE Express, and the Court makes no finding as to them. (See ECF No. 59-9 at 3 (“Mr. Torres is entitled to summary judgment on the issue of liability as it is undisputed that his tractor trailer was at a complete stop when it was struck in rear [sic] by the tractor trailer driven by defendant [ ] Mamadou, an employee of defendant Sargent [ ].”)).

2
The record includes the transcripts of the depositions of Torres and Mamadou, a declaration from Torres, an email from Mamadou describing the accident, and photos of the vehicles involved in the accident. (ECF Nos. 59-2 – 59-6).