CASES (2022)

Miller v. Costco Wholesale Corp.

United States District Court for the District of Nevada

February 22, 2022, Decided; February 22, 2022, Filed

Case No. 3:17-cv-00408-MMD-CLB

Reporter

2022 U.S. Dist. LEXIS 30504 *; 2022 WL 526140

ALLEN MILLER, Plaintiff, v. COSTCO WHOLESALE CORP., et al., Defendants.

Prior History: Miller v. C.H. Robinson Worldwide, Inc., 2018 U.S. Dist. LEXIS 194453, 2018 WL 5981840 (D. Nev., Nov. 14, 2018)

Core Terms

summary judgment, carrier, material fact, genuine, chameleon, hiring, motor carrier, proximate cause, investigate, shipment

Counsel: [*1] For Allen Miller, Plaintiff: Michael Jay Leizerman, LEAD ATTORNEY, The Law Firm for Truck Safety, LLP, Toledo, OH USA; Rena Mara Leizerman, LEAD ATTORNEY, PRO HAC VICE, The Law Firm for Truck Safety, LLP, Toledo, OH USA; Matthew L. Sharp, Matthew L. Sharp, Ltd., Reno, NV USA.

For Ronel R. Singh, Rheas Trans, Inc., Kuwar Singh, dba RT Service, Defendants, Cross Defendants: David M Zaniel, LEAD ATTORNEY, Ranalli & Zaniel, LLC, Reno, NV USA; George M. Ranalli, Ranalli Zaniel Fowler & Moran, LLC, Henderson, NV USA.

For C.H. Robinson Worldwide, Inc., Defendant, Cross Claimant, Cross Defendant: Michael A Burke, Michael E Sullivan, Robison, Sharp, Sullivan & Brust, Reno, NV USA.

For Pride Industries, Cross Defendant: Emma L. Forrest, LEAD ATTORNEY, Diesch Forrest, APC, Rocklin, CA USA.

Judges: MIRANDA M. DU, CHIEF UNITED STATES DISTRICT JUDGE.

Opinion by: MIRANDA M. DU

Opinion

ORDER

I. SUMMARY

Plaintiff Allen Miller sued Defendant C.H. Robinson Worldwide, Inc. (“CHR”) for negligently hiring an unfit motor carrier to transport a shipment, which led to an accident that severely injured Miller. (ECF No. 32 at 3, 7.) Before the Court is CHR’s Motion for Summary Judgment (ECF No. 124 (“Motion”)).¹ CHR requests summary judgment because [*2] Miller failed to establish, as a matter of law, that CHR breached its duty of care and that CHR’s conduct was the proximate cause of the accident. (Id. at 6.) Because there are genuine issues of material fact as to both the breach and proximate cause issues, and as further explained below, the Court will deny the Motion.

II. BACKGROUND²

CHR is a freight broker that contracts with motor carriers to transport shipments for clients. (ECF Nos. 32 at 7, 124 at 6.) CHR entered into a contract with RT Service (“RT”), an unrated motor carrier in 2014. (ECF Nos. 124 at 15, 129 at 10.) In 2016, CHR hired RT to deliver a shipment for Costco from Sacramento, California to Salt Lake City, Utah. (ECF Nos. 124 at 17-18, 129 at 13.) On December 8, 2016, Ronel Singh, on behalf of RT, was driving a semi-truck eastbound on I-80 to deliver this shipment. (ECF No. 124 at 17.) Although road conditions were icy and snowy that day, Ronel Singh drove in an unsafe manner. (Id. at 17-18.) Ronel Singh alleged that he encountered some black ice and his truck overturned, blocking the westbound lanes. (ECF Nos. 124 at 17-18, 129 at 6.) Miller was driving westbound on I-80 and could not avoid the semi-truck. (ECF No. [*3] 129 at 13.) He became lodged and pinned under the tractor-trailer and suffered significant injuries, which rendered him a quadriplegic. (ECF Nos. 32 at 3, 129 at 13.)

Miller subsequently brought this lawsuit against CHR and various other Defendants. He specifically asserted two claims against CHR in the Amended Complaint—vicarious liability and negligent hiring. (ECF No. 32 at 6-7.) CHR previously filed a motion for judgment on the pleadings.³ (ECF No. 59.) In his response to that, Miller agreed to dismiss the vicarious liability claim without prejudice.⁴ (ECF No. 70 at 1-2.) CHR then filed the Motion, requesting summary judgment in its favor on Miller’s remaining negligent hiring claim against CHR. (ECF No. 124 at 1.)

III. LEGAL STANDARD

“The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the facts before the court.” Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994) (citation omitted). Summary judgment is appropriate when the pleadings, the discovery and disclosure materials on file, and any affidavits “show there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). An issue is “genuine” if there is a sufficient evidentiary basis on which [*4] a reasonable factfinder could find for the nonmoving party and a dispute is “material” if it could affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Where reasonable minds could differ on the material facts at issue, however, summary judgment is not appropriate. See id. at 250-51. “The amount of evidence necessary to raise a genuine issue of material fact is enough ‘to require a jury or judge to resolve the parties’ differing versions of the truth at trial.’” Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat’l Bank v. Cities Serv. Co., 391 U.S. 253, 288-89, 88 S. Ct. 1575, 20 L. Ed. 2d 569 (1968)). In evaluating a summary judgment motion, a court views all facts and draws all inferences in the light most favorable to the nonmoving party. See Kaiser Cement Corp. v. Fischbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986) (citation omitted).

The moving party bears the burden of showing that there are no genuine issues of material fact. See Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). Once the moving party satisfies Rule 56’s requirements, the burden shifts to the party resisting the motion to “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256. The nonmoving party “may not rely on denials in the pleadings but must produce specific evidence, through affidavits or admissible discovery material, to show that the dispute exists,” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), and “must do more than simply show that there is some metaphysical doubt as to the material [*5] facts.” Orr v. Bank of Am., 285 F.3d 764, 783 (9th Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)). “The mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient[.]” Anderson, 477 U.S. at 252.

IV. DISCUSSION

CHR contends that summary judgment is appropriate because “Miller cannot establish, as a matter of law, that CHR violated the standard of care and/or that CHR’s conduct was the proximate cause of the accident which injured Miller.” (ECF No. 124 at 6.) The Court first addresses CHR’s breach argument, then its proximate cause argument. Because genuine disputes of material fact remain as to whether CHR violated its duty of care and whether CHR’s actions were the proximate cause of the accident, the Court will deny CHR’s Motion.

A. Breach of Duty

CHR argues that it did not violate its duty because the company performed a reasonable background check on RT, by ensuring that RT was registered by the Federal Motor Carrier Safety Administration (“FMCSA”)⁵ and had federally mandated insurance. (Id. at 22.) CHR also suggests that there is no evidence it actually knew that RT was a “chameleon carrier” of Rhea Trans (“Rhea”).⁶ (Id.) Miller counters that CHR ignored serious red flags that RT was a chameleon carrier and unfit for the job, and failed to further [*6] investigate the motor carrier. (ECF No. 129 at 20-21.) The Court agrees with Miller.

To prevail on a negligence claim under Nevada Law, the plaintiff must demonstrate “(1) the existence of a duty of care, (2) breach of that duty, (3) legal causation, and (4) damages.” Sanchez ex rel. Sanchez v. Wal-Mart Stores, Inc., 125 Nev. 818, 221 P.3d 1276, 1280 (Nev. 2009) (citation omitted). For negligent hiring, there is a “general duty on the employer to conduct a reasonable background check on a potential employee to ensure that the employee is fit for the position.” Burnett v. C.B.A. Sec. Serv., 107 Nev. 787, 820 P.2d 750, 752 (Nev. 1991) (citation omitted). The employer violates this duty “when it hires an employee even though the employer knew, or should have known, of that employee’s dangerous propensities.” Hall v. SSF, Inc., 112 Nev. 1384, 930 P.2d 94, 98 (Nev. 1996) (citation omitted).

The Court is persuaded that a reasonable juror could find that several “red flags”⁷ should have triggered CHR to further investigate RT. See Anderson, 477 U.S. at 250-51. First, Miller points to CHR’s admission that it previously contracted with Rhea in 2013 and did not remove Rhea from its system until 2017. (ECF Nos. 129 at 7, 130-2 at 3.) Rhea was a motor carrier owned by Ronel Singh, the driver in the accident, that had its license permanently revoked⁸ by the FMCSA in 2014 due to multiple, egregious violations. (ECF No. 129 at 7-8.) Ronel Singh was [*7] listed as Rhea’s owner in its 2013 contract with CHR. (ECF No. 125-1 at 180.) According to Miller, Ronel Singh subsequently formed RT and applied for FMCSA registration under his father’s name, “Kuwar.” (ECF Nos. 129 at 8, 130-6 at 2-3.) Ronel Singh and his father have the same last name, and Kuwar Singh was listed as RT’s owner in its 2014 contract with CHR. (ECF Nos. 125-1 at 165, 129 at 8.) Miller suggests that CHR’s long history with Rhea and the identical last names should have indicated to CHR that RT was a chameleon carrier of Rhea, and unfit to be hired. (ECF No. 129 at 7-8, 21.) This is because FMCSA applicants with chameleon characteristics are three times more likely to be involved in severe crashes than those without chameleon characteristics, since they “reincarnate or re-brand with the same ownership, assets, or drivers but do not change their culture or unsafe practices.”⁹ (Id. at 9.) Moreover, chameleon or reincarnated carriers are prohibited by FMCSA regulations. See 49 CFR § 385.1005.

Next, Miller contends that CHR should have known that RT was a chameleon carrier because [*8] the phone numbers and email addresses for RT and Rhea were the same in CHR’s database.¹⁰ (ECF Nos. 129 at 10, 21, 138-1 at 2-4.) Both Ronel and Kuwar Singh were also listed as points of contact in CHR’s sign-up form for RT. (ECF Nos. 129 at 10, 130-9 at 2.) Notably, the time stamp on the sign-up form was February 3, 2014—before the contract date between RT and CHR. (ECF Nos. 125-1 at 165, 129 at 10, 130-9 at 2.) CHR admits that the company has an internal system that checks for chameleon carriers by looking at a new carrier’s “address, telephone and contract signer information” to identify previous carriers with same information. (ECF No. 124 at 13-14.) If the system finds a match, CHR’s “carrier service group investigates the connection and whether the other entity was shut down for safety reasons, had its registration revoked, or otherwise had issues with the FMCSA . . . [i]f any of those reasons are found, CHR will not do business with the new motor carrier.” (Id. at 14.) Despite the matching information between RT and Rhea, and Ronel Singh being listed as a point of contact for RT, CHR’s carrier services group allegedly never conducted further investigation into RT. (ECF No. 129 [*9] at 10.) A reasonable factfinder could conclude that CHR’s failure to investigate RT, despite these blatant warning signs, constitutes breach because it violated CHR’s own protocols and was not a reasonable background check. See Hall, 930 P.2d at 98; Anderson, 477 U.S. at 248-49.

In sum, the plethora of evidence Miller provides creates a genuine dispute of material fact for the breach issue and challenges CHR’s assertion that there is no evidence CHR actually knew RT was a chameleon carrier at the time of hiring. (ECF No. 124 at 7, 23.) See Anderson, 477 U.S. at 256. However, even if CHR lacked actual knowledge, a rational trier of fact could find that CHR should have made the connection between RT and Rhea and investigated further, especially given Ronel and Kuwar’s identical last names, CHR’s past relationship with Rhea, Ronel Singh being listed as the point of contact for RT, the identical phone numbers and email addresses for RT and Rhea, and CHR’s own protocols for chameleon carriers. See Hall, 930 P.2d at 98 (noting that breach occurs even when the employer should have known of the employee’s dangerous propensities) (emphasis added); see also Rockwell v. Sun Harbor Budget Suites, 112 Nev. 1217, 925 P.2d 1175, 1181 (Nev. 1996) (finding there was a genuine dispute of material fact for negligent hiring because the plaintiff produced evidence [*10] that the hired employee had been fired from past jobs due to his violent behavior, had a criminal record, and had lied on his application).

Thus, drawing all inferences in the light most favorable to Miller, the Court finds that there are genuine issues of material fact as to whether CHR breached its duty of care. See Kaiser Cement Corp., 793 F.2d at 1103; Hall, 930 P.2d at 98. Moreover, denial of summary judgment is justified because the issue of breach and whether a party’s conduct is reasonable are generally questions of fact reserved for the jury. See Pennington v. Ed’s Tire Serv., Inc., 130 Nev. 1228 (2014); Lee v. GNLV Corp., 117 Nev. 291, 22 P.3d 209, 212 (Nev. 2001).

B. Proximate Cause

CHR argues that Miller cannot establish proximate cause because there is no evidence CHR knew of the relationship between Rhea and RT, and because CHR had no control over which driver and vehicle were selected to deliver the shipment. (ECF No. 124 at 23, 26.) CHR also suggests that speeding by both parties, rather than the vehicle’s brake issues and RT’s prior hours of service violations, was the cause of the accident. (Id. at 26-27.) The Court disagrees that these arguments are sufficient to warrant summary judgment in CHR’s favor.

A reasonable factfinder could conclude that the accident was a foreseeable harm of CHR’s inadequate and unreasonable screening measures, [*11] and that CHR’s negligence created an undue risk to others by placing a dangerous motor carrier on the road. See Anderson, 477 U.S. at 250-51 (noting that summary judgment is inappropriate where reasonable minds could differ on the material facts at issue); see also Taylor v. Silva, 96 Nev. 738, 615 P.2d 970, 971 (Nev. 1980) (noting that “[a] negligent defendant is responsible for all foreseeable consequences proximately caused by his or her negligent act”) (citation omitted). A rational trier of fact could also find that CHR’s failure to investigate RT, despite multiple warning signs, was part of the “natural and continuous sequence, unbroken by any efficient intervening cause” that produced the accident. See Taylor, 615 P.2d at 971 (citations omitted); see also Mahan v. Hafen, 76 Nev. 220, 351 P.2d 617, 620 (Nev. 1960).

Moreover, summary judgment is inappropriate because proximate cause generally concerns issues of fact that should be reserved for the jury. See Nehls v. Leonard, 97 Nev. 325, 630 P.2d 258, 260 (Nev. 1981) (citations omitted); see also Flaherty v. Kelly, 129 Nev. 1114 (2013) (noting that the Nevada Supreme Court is “reluctant to affirm summary judgment [in negligence cases] . . . because, generally, the question of whether a defendant was negligent in a particular situation is a question of fact for the jury to resolve”) (citation omitted). Thus, drawing all inferences in the light most favorable to Miller, the Court finds that [*12] there are genuine disputes of material fact as to the proximate cause issue that should be reserved for trial. See Kaiser Cement Corp., 793 F.2d at 1103; Anderson, 477 U.S. at 256.

V. CONCLUSION

The Court notes that the parties made several arguments and cited to several cases not discussed above. The Court has reviewed these arguments and cases and determines that they do not warrant discussion as they do not affect the outcome of the issues before the Court.

It is therefore ordered that CHR’s motion for summary judgment (ECF No. 124) is denied.

DATED THIS 22nd Day of February 2022.

/s/ Miranda M. Du

MIRANDA M. DU

CHIEF UNITED STATES DISTRICT JUDGE

End of Document

¹Miller filed a response (ECF No. 129) and CHR filed a reply (ECF No. 133) to the Motion.

²The following facts are undisputed unless noted otherwise.

³The Court previously granted CHR’s motion for judgment on the pleadings because the Court found that Miller’s common law negligence claim was preempted by the Federal Aviation and Administration Authorization Act. (ECF No. 84.) The Ninth Circuit reversed the Court’s decision, and the order was vacated. (ECF No. 105.) CHR subsequently submitted a Petition for Writ of Certiorari to the U.S. Supreme Court regarding the Ninth Circuit’s reversal and remand. (ECF No. 123.) That petition is currently pending before the U.S. Supreme Court, which asked the Acting Solicitor General to weigh in on the issue. (ECF No. 136.)

⁴CHR sought dismissal of Miller’s vicarious liability claim because it was not an independent cause of action, but rather a theory of liability. (ECF No. 59 at 10-11.) There is no dispute that Miller consented to dismiss his vicarious liability claim without prejudice. (ECF No. 70 at 1-2.). However, Miller argues that he is not precluded from pursuing the vicarious liability theory under his negligence claim at trial. (ECF No. 129 at 28.) While vicarious liability as a claim was dismissed, the Court agrees that Miller is not precluded from asserting vicarious liability as a theory of liability as part of his remaining claim.

⁵According to CHR, the FMCSA is an administrative agency that regulates interstate motor carriers, issues safety regulations for motor carriers, completes compliance reviews, and assigns safety ratings to carriers. (ECF No. 124 at 8-9.) See 49 C.F.R. § 385.1; 49 C.F.R. § 385.3.

⁶The U.S. Department of Transportation prohibits two or more motor carriers from “us[ing] common ownership, common management, common control, or common familial relationship to enable any or all such motor carriers to avoid compliance, or mask or otherwise conceal non-compliance, or a history of non-compliance, with statutory or regulatory requirements.” 49 C.F.R. § 385.1005. The parties refer to these carriers as “chameleon carriers,” a term the Court adopts for the purposes of consistency and clarity. (ECF Nos. 124 at 12, 129 at 8-9.)

⁷Miller also cites to findings by expert witness Steven Belyus that CHR ignored red flags within RT’s own record prior to the accident. (ECF No. 129 at 11-15.) CHR objects to the Court’s consideration of Belyus’ affidavit for this Motion since Miller previously confirmed that he would not be calling Belyus to testify about causation at trial. (ECF No. 133 at 16.) The Court need not decide this issue at this stage because the Court does not rely on Belyus’ affidavit in its decision and Miller has presented other evidence to show that genuine issues of material fact exist.

⁸According to Miller, the FMCSA revoked Rhea’s registration several times in 2013 and 2014, and never reinstated the registration due to Rhea’s “failure to maintain the minimum required insurance.” (ECF No. 129 at 7.) Rhea was also cited for driver-related, vehicle-related, hours-of-service, and logbook violations. (Id. at 7-8.)

⁹Miller points to data about chameleon carriers from the U.S. Government Accountability Office. See Motor Carrier Safety: New Applicant Reviews Should Expand to Identify Freight Carriers Evading Detection, U.S. Government Accountability Office, https://www.gao.gov/products/gao-12-364 (last visited Feb. 16, 2022). In CHR’s reply, it broadly asks the Court to exclude “improper documents and websites” from its consideration because Miller failed to provide “foundation, authentication, nor even a request for the Court to take judicial notice of the same.” (ECF No. 133 at 7.) CHR does not specify which websites it takes issue with. (Id.) However, to the extent CHR objects to the Court’s consideration of the Accountability Office’s website and data, Federal Rule of Evidence 201 permits the Court to take judicial notice on its own of a fact that is not subject to reasonable dispute because it “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Here, the chameleon carrier data is highly relevant to Miller’s argument and has been generated by the Accountability Office, using FMCSA data. The Court will therefore take judicial notice of the aforementioned source and data.

¹⁰CHR argues that RT and Rhea were categorized as “related parties” three months after the accident, and that the physical addresses for the carriers were different in the system. (ECF No. 133 at 12-13.) Screenshots from CHR’s database confirm that the “Relationship Note” between RT and Rhea was added in March 2017. (ECF No. 138 at 7.) However, this does not negate the contention that Rhea and RT’s phone numbers and email addresses were identical in CHR’s system prior to the December 2016 accident and the March 2017 update. (Id.)

Lara v. Power of Grace Trucking, LLC

United States District Court for the Western District of Texas, Pecos Division

January 4, 2022, Decided; January 4, 2022, Filed

P:20-CV-00010-DC

Reporter

2022 U.S. Dist. LEXIS 35821 *; 2022 WL 576581

MIGUEL LARA and MARIA LARA, individually and as Administrators of the Estate of Luis Antonio Lara, Plaintiffs, v. POWER OF GRACE TRUCKING, LLC, and JOSE GUADALUPE PINA JACOBI, Defendants.

Core Terms

gross negligence, summary judgment, recommendations, mail, genuine, nonmoving, driver, material fact

Counsel: [*1] For Miguel Lara, Individually and as Independent Administrato of the Estate of Luis Antonio Lara, Maria Estela Lara, Individually and as Independent Administrator of the Estate of Luis Antonio Lara, Plaintiffs: Rickey J. Brantley, Rickey J. Brantley, Attorney at Law, P.C., Fort Worth, TX.

For Power of Grace Trucking, LLC, Defendant: Eric Sherwood Rich, LEAD ATTORNEY, Shafer, Davis, O’Leary & Stoker, Odessa, TX.

Jose Guadalupe Pina Jacobi, Defendant, Pro se.

For Stephanie Coronado, as next friend to A.L., a minor, Intervenor Plaintiff: Jack Stick, LEAD ATTORNEY, Veris Law PLLC, Austin, TX; Michael S. Alfred, LEAD ATTORNEY, Hallett & Perrin, Dallas, TX.

Judges: DAVID COUNTS, UNITED STATES DISTRICT JUDGE.

Opinion by: DAVID COUNTS

Opinion

ORDER ADOPTING REPORT AND RECOMMENDATION

BEFORE THE COURT is United States Magistrate Judge David B. Fannin’s Report and Recommendation (R&R) filed in the above-captioned cause on October 4, 2021, in connection with the Motion for Partial Summary Judgment filed by Defendants Power of Grace Trucking, LLC (Power of Grace) and Jose Guadalupe Pina Jacobi (Jacobi) (together, Defendants) on June 3, 2021. (Docs. 39, 83). Plaintiffs Miguel Lara and Maria Lara (Plaintiffs) filed Objections to the [*2] R&R on October 14, 2021. (Doc. 92). Power of Grace, with leave of Court, filed a response to the Objections on October 26, 2021. (Doc. 95-1). After due consideration, the Court ADOPTS the R&R to the extent that it is consistent with this Order (Doc. 83) and OVERRULES Plaintiffs’ Objections (Doc. 92). Accordingly, the Court GRANTS IN PART and DENIES IN PART Defendants’ Motion for Partial Summary Judgment. (Doc. 39).

I. Background

This case arises from an automobile collision. (Doc. 1 at 4). On or about December 8, 2019, Luis Antonio Lara (Mr. Lara) was traveling northbound on SH 18. Id. Jacobi was also traveling on SH 18 northbound. Id. According to the Complaint, Jacobi made an illegal U-turn across SH 18’s northbound lane. Id. Jacobi struck Mr. Lara’s vehicle during the attempted U-turn, resulting in Mr. Lara’s death. Id. Power of Grace owned the commercial tractor-tanker trailer driven by Jacobi. Id. The parties agree that Jacobi was acting within the course and scope of his employment with Power of Grace at the time of the collision. Id.

The Plaintiffs are Mr. Lara’s parents. Id. at 1. On February 20, 2020, they filed the instant lawsuit against Defendants for negligence, gross negligence, [*3] and wrongful death. See id. Moreover, Plaintiffs raise claims for respondeat superior and negligent hiring, training, supervision, retention, and monitoring against Power of Grace. Id. On June 8, 2020, Stephanie Coronado (Intervenor) filed a Complaint in Intervention as Next Friend to A.L., Mr. Lara’s son. (Doc. 14). Intervenor raises the same claims as Plaintiffs. Id.

On June 3, 2021, Defendants, represented by the same attorneys, jointly filed a Motion for Partial Summary Judgment. (Doc. 39). Defendants move for summary judgment on the gross negligence claim. Id.

The Magistrate Judge issued an R&R on October 4, 2021, recommending granting in part and denying in part the Motion for Partial Summary Judgment. (Doc. 83). Specifically, the Magistrate Judge finds Plaintiffs have provided sufficient evidence for a reasonable jury to find Jacobi liable for gross negligence. Id. As to Power of Grace, the Magistrate Judge finds there is no genuine issue of material fact for which a reasonable juror could find that Power of Grace is liable for gross negligence. See generally id.

Prior to the Magistrate Judge issuing the R&R, defense counsel moved to withdraw as the attorney of record for Jacobi. [*4] (Doc. 82). The Magistrate Judge granted the motion to withdraw and ordered the Court of Clerk to mail by certified mail, return receipt requested a copy of the order granting the motion to withdraw and the R&R to Jacobi’s last known address,¹ which defense counsel provided. (Docs. 84, 85). The order and R&R were returned to the Clerk of Court labeled “Return to Sender” and “Unable to Forward.” (Doc. 102). The Magistrate Judge also issued an advisory to Jacobi, explaining his status as a pro se litigant. (Doc. 86). The advisory was mailed via certified mail, return receipt requested on October 4, 2021, to Jacobi’s last known address. (Doc. 87). The advisory has not been delivered to Jacobi.

On October 14, 2021, Plaintiffs filed timely Objections to the R&R. (Doc. 92). They argue that the Magistrate Judge erred in finding that there is not sufficient evidence in the summary judgment record for a reasonable jury to find Power of Grace grossly negligent and that a ruling on the gross negligence claim is premature. See id.

Power of Grace and Jacobi did not file objections. The Court reset the final pretrial conference and trial settings several times to provide Jacobi, proceeding pro se, additional [*5] time to file objections, if any, to the R&R. (Docs. 93; 97; 98; Text Only Entry, Dec. 30, 2021). Additionally, the Court directed the Clerk of Court to mail the R&R, order granting the motion to withdraw as an attorney, and advisory to Jacobi via FedEx International Priority. To this date, the documents have not been delivered to Jacobi by FedEx.

II. Legal Standards

A. Objections to Report and Recommendation

Any party who desires to object to a Magistrate Judge’s findings and recommendations must serve and file written objections within fourteen (14) days after being served with a copy of the findings and recommendations. 28 U.S.C. § 636(b)(1). A party’s objections to an R&R entitle him to a de novo review of those claims by this Court. 28 U.S.C. § 636(b)(1). However, objections must specifically identify those findings or recommendations to which objections are being made. The Court need not consider frivolous, conclusive, or general objections. See Battle v. United States Parole Comm’n, 834 F.2d 419 (5th Cir. 1987).

Failure to file written objections to the R&R within fourteen (14) days after being served with a copy shall bar that party from de novo review by the district court of the proposed findings and recommendations. Id. Moreover, except upon grounds of plain error, it shall also bar [*6] the party from appellate review of proposed factual findings and legal conclusions accepted by the district court to which no objections were filed. Id.; Thomas v. Arn, 474 U.S. 140, 150-53, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); United States v. Wilson, 864 F.2d 1219 (5th Cir. 1989) (per curiam).

B. Motion for Summary Judgment

Summary judgment is proper if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The Court must examine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52. In making this determination, the Court must consider the record as a whole by reviewing all pleadings, depositions, affidavits, and admissions on file, and drawing all justifiable inferences in favor of the party opposing the motion. Caboni v. Gen. Motors Corp., 278 F.3d 448, 451 (5th Cir. 2002). The Court may not weigh the evidence or evaluate the credibility of witnesses. Id.

The moving party bears the initial burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). If the moving party demonstrates an absence of evidence supporting the nonmoving party’s case, then [*7] the burden shifts to the nonmoving party to come forward with specific facts showing that a genuine issue for trial exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). The nonmoving party cannot rest on the mere allegations of the pleadings to sustain this burden. Fed. R. Civ. P. 56(e); Anderson, 477 U.S. at 248. “After the nonmovant has been given an opportunity to raise a genuine factual issue, if no reasonable juror could find for the nonmovant, summary judgment will be granted.” Caboni, 278 F.3d at 451. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248. The admissibility of summary judgment evidence is subject to the same rules of admissibility applicable to a trial. Resolution Tr. Corp. v. Starkey, 41 F.3d 1018, 1024 (5th Cir. 1995) (citing Munoz v. Int’l All. of Theatrical Stage Emps. & Moving Picture Mach. Operators of the U.S. & Can., 563 F.2d 205, 297 n.1 (5th Cir. 1977)). Federal courts sitting in diversity apply state substantive law and federal procedural law. Shady Grove Orthopedic Ass’n, P.A. v. Allstate Ins. Co., 559 U.S. 393, 437, 130 S. Ct. 1431, 176 L. Ed. 2d 311 (2010) (citing Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427, 116 S. Ct. 2211, 135 L. Ed. 2d 659 (1996)).

III. Discussion

As a preliminary matter, the Court notes that the R&R, which recommends denying Jacobi’s Motion for Partial Summary Judgment on the gross negligence claim filed against him, has been mailed to Jacobi twice to the last known address provided by Jacobi’s former counsel. The first time, the R&R was sent by certified mail, return receipt requested. (Doc. 85). The second time, the R&R was mailed via FedEx [*8] International Priority. (Doc. 99). The first receipt was returned to the Clerk of Court on December 3, 2021, marked “Return to Sender” and “Unable to Forward.” (Doc. 102). The only address on file for Jacobi is that provided by his former attorney. As of the date of this Order, Jacobi has not provided the Court with a change of address. Accordingly, the Court finds Jacobi did not file timely objections to the R&R. See, e.g., Wright v. Wells Fargo Bank, N.A., No. A-12-CV-753-LY, 2014 WL 625603, at *1 (W.D. Tex. Jan. 3, 2014). The Court now turns to Plaintiffs’ Objections.

Plaintiffs first generally object to the Magistrate Judge’s finding that there is “insufficient evidence of the subjective element of [Power of Grace]’s gross negligence.” (Doc. 92 at 2). However, Plaintiffs do not expand on this particular objection. Id. Because the Court is not required to review frivolous, conclusive, or general objections, Plaintiffs’ first objection is overruled. See Minor v. Child Protective Agency, No. 5:20-CV-00405-OLG, 2020 WL 8915668, at *1 (W.D. Tex. June 5, 2020), appeal dismissed, No. 20-50680, 2020 WL 8551905 (5th Cir. Sept. 8, 2020) (citing Battle, 834 F.2d at 421).

Plaintiffs also challenge the Magistrate Judge’s finding that “Plaintiffs had not asserted a claim for gross negligence and exemplary damages.” (Doc. 92 at 2). Although the Magistrate Judge did not enumerate the gross negligence claim in the list of claims raised by Plaintiffs against Defendants (see [*9] Doc. 83 at 2), he did review the gross negligence claims asserted in Plaintiffs’ Complaint and Intervenor’s Complaint in Intervention (see Doc. 83 at 5, 14). Accordingly, the objection is overruled.

Next, Plaintiffs argue that the Magistrate Judge erred in failing to “recognize that by satisfying the objective burden of the gross negligence claims against [Power of Grace] there is sufficient evidence to support the subjective elements or at a minimum raise a genuine issue of material fact for the jury to determine.” (Doc. 92 at 3). Plaintiffs specify that evidence of the “extreme risk posed by Power of Grace placing an untrained and unqualified Jacobi behind the wheel of a deficient tractor-trailer on a high-speed highway” supports Power of Grace’s objective and subjective awareness and conscious disregard of the risk. Id.

A claim for gross negligence contains two elements: one is objective and the other subjective. See U-Haul Int’l Inc. v. Waldrip, 380 S.W.3d 118, 137 (Tex. 2012). Plaintiffs challenge the Magistrate Judge’s analysis of the second prong. (Doc. 92 at 3). The subjective prong of a gross negligence claim “requires that the defendant knew about the risk, but that the defendant’s acts or omissions demonstrated indifference to the consequences [*10] of its acts.” Phillips v. Super Servs. Holdings, LLC, 189 F. Supp. 3d 640, 654 (S.D. Tex. 2016) (citing U-Haul, 380 S.W.3d at 137). “An act or omission that is merely thoughtless, careless, or not inordinately risky cannot be grossly negligent.” See id. (citing Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 22 (Tex. 1994)).

Plaintiffs allege that the following factors establish Power of Grace’s subjective awareness about the risk: hiring Jacobi even though he did not have a valid driver’s license, violating regulations affecting the tractor-trailer’s roadworthiness, and failing to verify driver qualifications or experience, resulting in hiring an inexperienced and unqualified driver. (Doc. 92 at 3). In Texas, however, the law is clear that a gross negligence claim in the context of negligent hiring or entrustment must be supported “by more than a finding that the driver was unlicensed or inexperienced[.]” Escalante v. Creekside Logistics, LLC, No. 5:18-CV-116-OLG, 2019 WL 9135758, at *5 (W.D. Tex. Feb. 12, 2019) (internal quotation marks omitted) (quoting Phillips, 189 F. Supp. 3d at 658). Likewise, “a failure to sufficiently inquire into the employee’s driving record is insufficient to impose punitive damages.” Baird v. Shagdarsuren, No. 3:17-CV-2000-B, 2020 WL 208815, at *5 (N.D. Tex. Jan. 14, 2020) (citation omitted). What is lacking, in this case, is evidence of Power of Grace’s knowledge of any “incompetence or habitual recklessness on [Jacobi’s] part.” See id. (quoting [*11] Phillips, 189 F. Supp. 3d at 658) (explaining that punitive damages are available where “there is evidence that the driver was in fact incompetent or habitually reckless, and the owner knew or should have known that the driver was incompetent or reckless” (emphasis added)). For this reason, the Court overrules Plaintiffs’ third objection.

Finally, Plaintiffs argue that the Magistrate Judge’s ruling is premature because Jacobi has not been deposed. (Doc. 92 at 3-4). Plaintiffs maintain that Jacobi might have information regarding Power of Grace’s knowledge and awareness of “the extreme risk involved by placing Jacobi on the road.” Id. However, the trial in this case is set for March 21, 2022, and will proceed accordingly with or without Jacobi.² Thus, the Magistrate Judge’s ruling on the gross negligence claim, based on the summary judgment evidence before him, was not premature.

IV. Conclusion

For the foregoing reasons, the Court ADOPTS the R&R to the extent that it is consistent with this Order. (Doc. 83).

The Court further OVERRULES Plaintiffs’ Objections. (Doc. 92).

The Court finally GRANTS IN PART and DENIES IN PART Defendants’ Motion for Partial Summary Judgment. (Doc. 39).

It is so ORDERED.

SIGNED this 4th day of January, [*12] 2022.

/s/ David Counts

DAVID COUNTS

UNITED STATES DISTRICT JUDGE

End of Document

¹According to defense counsel, Jacobi left for Mexico and his last known address is: Prolongacion Eje 6 Sur 560, Bodega # 54, Area Federal Central de Abastos, Alcaldia Iztapalapa, Ciudad de Mexico C.P. 09040. (Doc. 82 at 3).

²There is very little Plaintiffs, Intervenor, or Power of Grace can do to ensure Jacobi appears for a deposition. The Court will not delay the trial any further in hopes that Jacobi will defend this case.