United States District Court for the Southern District of Texas, Houston Division

May 21, 2024, Decided; May 21, 2024, Filed, Entered

CIVIL ACTION NO. 4:23-CV-03009

Reporter

2024 U.S. Dist. LEXIS 91263 *; 2024 WL 2303924

EMILLY EDITH VELILLA, individually and a/n/f of E.A.V. (Minor) and a/n/f of B.D. (Minor), and KEYLA ESTEFANIA FUENTES ORELLANA, Plaintiffs, VS. LADARIOUS SHARMACO RUSHING, PACCAR FINANCIAL SERVICES CORPORATION, and JBS CARRIERS, INC., Defendants.

Core Terms

lease, summary judgment, material fact, nonmoving

Counsel:  [*1] For Emilly Edith Velilla, Individually a/n/f of E.A.V. (Minor) and B.D, (Mnor), Keyla Estefania Orellana, Plaintiffs: Jason D Goff, LEAD ATTORNEY, The Law Offices of Marcos & Associates, PC, Houston, TX.

For Ladarious Sharmaco Rushing, JBS Carriers, Inc., Defendants: Clayton Haley, LEAD ATTORNEY, Fairchild, Price, Haley & Smith, LLP, Nacogdoches, TX.

Judges: Andrew S. Hanen, United States District Judge.

Opinion by: Andrew S. Hanen

Opinion

ORDER

Pending before the Court is Defendant Paccar Financial Services Corporation’s (“Paccar”) Motion for Summary Judgment. (Doc. No. 16). Plaintiffs Emilly Edith Velilla, individually and as Next Friend of E.A.V. and as Next Friend of B.D., and Keyla Estefania Fuentes Orellana (collectively, “Plaintiffs”) did not respond. For the reasons outlined below, the Court hereby GRANTS Paccar’s motion. (Doc. No. 16).

BACKGROUND

This case arises from a motor vehicle accident that occurred on August 14, 2021 in Harris County, Texas. According to Plaintiffs’ Original Petition, Plaintiffs were traveling on Interstate 45 when Defendant Ladarious Sharmaco Rushing (“Rushing”), who was driving a tractor trailer allegedly owned by Paccar and Defendant JBS Carriers, Inc. (“JBS”), collided with Plaintiffs [*2]  as he was changing lanes. Plaintiffs suffered severe injuries. In 2023, Plaintiffs filed suit in state court in Harris County, Texas. The Original Petition states a cause of action for negligence, gross negligence, and negligence per se under Texas Transportation Code § 545.060 against Rushing and causes of action for negligence and negligence per se under the doctrine of respondeat superior against JBS. Plaintiffs seek damages for past and future medical expenses, past and future pain, suffering, and mental anguish, past and future physical impairment and disfigurement, lost wages and future loss of earning capacity, and property damage to the vehicle. Paccar and Rushing both asserted counterclaims against Plaintiff Emilly Velilla for negligence and/or negligence per se. Paccar removed the case to this Court in August 2023, citing diversity of citizenship as the grounds for subject matter jurisdiction.¹

Paccar filed the instant motion for summary judgment in November 2023, arguing that Plaintiffs have failed to state a claim against Paccar, and, alternatively, that pursuant to the Graves Amendment (49 U.S.C. § 30106(a)), it “cannot be held liable for any harm to persons or property that results or arises out of the use, operation, or possession [*3]  of the Kenworth tractor with VIN # 1XKYDP9X2KJ238613 that was leased to JBS Carriers, Inc. during the period of the lease.” (Doc. No. 16 at 4). Plaintiffs did not respond.

LEGAL STANDARD

Summary judgment is warranted “if the movant shows that 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). “The movant bears the burden of identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact.” Triple Tee Golf Inc. v. Nike, Inc., 485 F.3d 253, 261 (5th Cir. 2007) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)).

Once a movant submits a properly supported motion, the burden shifts to the non-movant to show that the court should not grant the motion. Celotex, 477 U.S. at 321-25. The non-movant then must provide specific facts showing that there is a genuine dispute. Id. at 324; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). A dispute about a material fact is genuine 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 draw all reasonable inferences in the light most favorable to the nonmoving party in deciding a summary judgment motion. Id. at 255. The key question on summary judgment is whether there is evidence raising an issue of material fact upon which a hypothetical, reasonable factfinder could find in favor of the [*4]  nonmoving party. Id. at 248. It is the responsibility of the parties to specifically point the Court to the pertinent evidence, and its location, in the record that the party thinks are relevant. Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003). It is not the duty of the Court to search the record for evidence that might establish an issue of material fact. Id.

Local Rules 7.3 and 7.4 of the Southern District of Texas state that a motion will be submitted to the judge twenty-one days after filing. Under Local Rule 7.4, a failure to respond will be taken “as representation of no opposition.” See Local Rule LR7.4. Furthermore, Rule 7.4(a) plainly states that such responses must be filed by the submission date. Id.

The Fifth Circuit, however, has explained that “although we have endorsed the adoption of local rules that require parties to file responses to opposed motions, we have not approved the automatic grant, upon failure to comply with such rules, of motions that are dispositive of the litigation.” John v. Louisiana, 757 F.2d 698, 707-09 (5th Cir. 1986). Since granting summary judgment based solely on the local rules and Plaintiffs’ failure to respond would be improper, this Court will address the merits of the motion.

ANALYSIS

Paccar argues that Plaintiffs’ claim against it (if any) is barred by the Graves Amendment. See 49 U.S.C. § 30106(a).² Accordingly, Paccar contends [*5]  that it is entitled to judgment as a matter of law. Pursuant to the Graves Amendment:

(a) In general…An owner of a motor vehicle that rents or leases the vehicle to a person (or an affiliate of the owner) shall not be liable under the law of any State or political subdivision thereof, by reason of being the owner of the vehicle (or an affiliate of the owner), for harm to persons or property that results or arises out of the use, operation, or possession of the vehicle during the period of the rental or lease, if…

(1) the owner (or an affiliate of the owner) is engaged in the trade or business of renting or leasing motor vehicles; and

(2) there is no negligence or criminal wrongdoing on the part of the owner (or an affiliate of the owner).

49 U.S.C. § 30106.

Paccar has presented evidence that it “provides finance, lease and insurance services to dealers and customers in 24 countries including a portfolio of more than 180,000 trucks and trailers[.]”. (Doc. No. 16 at 4). Paccar offers the affidavit of Linda Markle, an employee of Paccar, who states under oath that “Paccar and JBS Carriers, Inc. entered into [an equipment lease] for several Kenworth tractors.” (Doc. No. 16-1 at 2). Paccar has further [*6]  presented evidence that Rushing was driving one of the leased Kenworth tractors (VIN #1XKYDP9X2KJ238613) at the time of the accident. (Doc. No. 16-3 at 2). Plaintiffs did not respond to Paccar’s motion; as such, the evidence presented by Paccar in support of its motion is uncontroverted. Further, Plaintiffs did not make any allegations of negligence on the part of Paccar in their Original Petition. Accordingly, the Court finds that Paccar, as the lessor of the vehicle involved in the car accident at issue, is entitled to summary judgment in its favor. See 49 U.S.C. § 30106; see also Marr v. Croxton, No. SA-21-CV-00961-XR, 2022 U.S. Dist. LEXIS 106904, 2022 WL 2161059 at *3 (W.D. Tex. June 14, 2022).

For the foregoing reasons, the Court hereby GRANTS Paccar’s Motion for Summary Judgment in its entirety. (Doc. No. 16).

Signed at at Houston, Texas, on this the 21st day of May 2024.

/s/ Andrew S. Hanen

Andrew S. Hanen

United States District Judge

End of Document

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¹ Plaintiffs are allegedly citizens of Texas. Rushing is a citizen of Louisiana. JBS Carriers is a citizen of Colorado, and Paccar is a citizen of the state of Washington. (Doc. No. I at 2-3). Plaintiffs’ Original Petition seeks monetary relief in excess of $1,000,000.

² Paccar also argues that Plaintiffs “fail to allege a cause of action,” asking the Court to “take judicial notice of Plaintiffs’ [Original Petition].” (Doc. No. 16 at 3). This would be a more appropriate argument at the motion to dismiss stage rather than at summary judgment. Nonetheless, the Court notes that the only mention of Paccar in Plaintiffs’ Original Petition—outside of the Parties and Service section—is in the facts section, in which Plaintiffs state that “Defendant Rushing was driving a tractor and trailer owned by Defendant, Paccar and Defendant, JBS.” (Doc. No. 9-1 at 26).

The two captioned causes of action explicitly state negligence and/or negligence per se claims against Rushing and JBS, but no mention is made of Paccar outside of the facts section. (Doc. No. 9-1 at 26-27). No specific allegations are made against Paccar other than the statement that it was a co-owner of Rushing’s tractor trailer. This is insufficient to adequately state a claim under the Federal Rules and would have been appropriately dismissed on a Rule 12(b)(6) motion, had it been filed. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007).

United States District Court for the Northern District of Georgia, Atlanta Division

May 14, 2024, Decided; May 14, 2024, Filed

CIVIL ACTION FILE NO. 1:22-CV-3860-TWT

Reporter

2024 U.S. Dist. LEXIS 86340 *; 2024 WL 2171934

ALLYSON PERRY, et al., Plaintiffs, v. WILLIAM CUMMINGS, et al., Defendants.

Core Terms

negligent hiring, supervision, negligent supervision, hired, partial summary judgment, summary judgment, material fact, Undisputed, driver, genuine issue of material fact, speeding ticket, deposition, training, driving, affirmative evidence, reasonable jury, present case, truck driver, Transport, nonmovant, pleadings, genuine, lone

Counsel:  [*1] For Allyson Marie Perry, Jaquavis Mikel France, Plaintiffs: Chauncey Napoleon Brown Barnwell, LEAD ATTORNEY, Brown Barnwell PC, Johns Creek, GA.

For William Michael Cummings, Lenk Express, LLC, Ryan Ryan Transport, LLC, Defendants: Geoffrey Felix Calderaro, Freeman, Mathis & Gary, Atlanta, GA; Marc Howard Bardack, Freeman Mathis & Gary, LLP -Atl, Atlanta, GA.

Judges: THOMAS W. THRASH, JR., United States District Judge.

Opinion by: THOMAS W. THRASH, JR.

Opinion

OPINION AND ORDER

This is a personal injury action. It is before the Court on the Defendants’ Motion for Partial Summary Judgment [Doc. 47], which is GRANTED.

I. Background¹

This case arises from a car accident between the Plaintiffs and the Defendant William Cummings that occurred on March 26, 2021. (Defs.’ Statement of Undisputed Material Facts ¶ 1). At the time of the accident, Cummings was operating a tractor–trailer for the Defendant Ryan Transport, LLC, who was assigned to transport the load by the Defendant Lenk Express, LLC. (Pls.’ Statement of Additional Undisputed Material Facts ¶¶ 16-19). Ryan hired Cummings in June 2020, and Cummings was not involved in any accidents, nor did he receive any citations or points on his CDL license, prior to the accident [*2]  giving rise to this suit. (Defs.’ Statement of Undisputed Material Facts ¶¶ 5, 7). Prior to his employment with Ryan, Cummings received two speeding tickets and a citation for following too closely between 2015 and 2017. (Id. ¶ 10). The Plaintiffs brought the present case against the Defendants on September 26, 2022, asserting claims of negligence, imputed liability, and negligent hiring, training, and supervision. On October 10, 2023, the Court granted partial summary judgment in favor of the Defendants on the Plaintiffs’ negligent hiring and training claims against Lenk and the negligent training claim against Ryan. The Defendants now move for partial summary judgment as to the negligent hiring and supervision claims against Ryan and the negligent supervision claim against Lenk.

II. Legal Standard

Summary judgment is appropriate only when the pleadings, depositions, and affidavits submitted by the parties show that no genuine issue of material fact exists, and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a), (c). The court should view the evidence and draw any inferences in the light most favorable to the nonmovant. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970). The party seeking summary judgment must first identify [*3]  grounds that show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The burden then shifts to the nonmovant, who must go beyond the pleadings and present affirmative evidence to show that a genuine issue of material fact exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

III. Discussion

The Defendants move for partial summary judgment as to the Plaintiffs’ negligent supervision claims against Lenk and Ryan and negligent hiring claim against Ryan. (Br. in Supp. of Defs.’ Mot. for Partial Summ. J., at 1). They contend that the undisputed facts establish that Cummings had an exemplary safety record while he worked for Ryan until the accident at issue and note that his lone citation for following too closely in 2017 does not require a finding of a tendency to engage in the behavior that allegedly caused the accident. (Id. at 2, 4). In response, the Plaintiffs argue that the Defendants’ Motion is untimely pursuant to the Scheduling Order and that summary judgment is premature because genuine issues of fact remain as to whether the Defendants were negligent in their hiring and supervision of Cummings. (Pls.’ Resp. Br. in Opp’n to Defs.’ Mot. for Partial Summ. J., at 3-8).

The Court finds the Defendants’ Motion to be timely and meritorious. [*4]  As to the former, the Defendants Motion is timely under Local Rule 56.1(D) after the Court extended discovery to allow for the deposition of the Plaintiffs’ proffered expert Linda Day, which encompassed the issues of negligent supervision and hiring before the Court in this Motion. And as to the latter, the Defendants carried their initial burden of showing the absence of a genuine dispute of material fact regarding Cummings’ driving that would support a claim of negligent hiring or supervision by the Defendants. (Br. in Supp. of Defs.’ Mot. for Partial Summ. J., at 3-4 (citing Cummings’ driving record and the deposition and affidavit of Lenk and Ryan representatives who viewed Cummings as a safe driver)). But in response, the Plaintiffs fail to present any affirmative evidence to suggest that the Defendants negligently hired or supervised Cummings in some manner. (Pls.’ Resp. Br. in Opp’n to Defs.’ Mot. for Summ. J., at 6-8). Instead, they merely rely on evidence of two speeding tickets and a citation for following too closely between 2015 and 2017 in support of their position that a reasonable jury could find that such evidence could support a claim for negligent supervision and hiring.

The Court disagrees [*5]  with the Plaintiffs’ argument. First, traffic citations that occurred more than three years before a driver was hired in no way implicate any potential negligent supervision of that driver. And second, “[n]o reasonable jury could find that [a truck driver] was accident-prone based on two speeding tickets [and a citation for following too closely] over the course of a decade.” Hughey v. KTV’s Transp., LLC, 2022 U.S. Dist. LEXIS 56418, 2022 WL 902841, at *4 (N.D. Ga. Mar. 28, 2022). Moreover, the lone case on which the Plaintiffs rely in support of their position is grossly distinguishable from the facts of the present case. See Collins v. GKD Mgmt., LP, 2023 U.S. Dist. LEXIS 219322, 2023 WL 8351543, at *1, *12 (N.D. Ga. Oct. 3, 2023) (allowing claims of negligent hiring and supervision to proceed to a jury in a wrongful death action where the truck driver who caused the injuries had “a driving citation, three roadside inspections, a previous accident, and a ‘call-in’ report about [the truck driver’s] speeding—all occurring within or around a year prior to the accident in this case”). Accordingly, summary judgment in favor of the Defendants is proper as to the negligent hiring and supervision theories against Ryan under Count V and as to the negligent supervision theory against Lenk under Count III.

IV. Conclusion

For the foregoing reasons, the Defendants’ Motion for Partial Summary Judgment [Doc. [*6]  47] is GRANTED.

SO ORDERED, this 14th day of May, 2024.

/s/ Thomas W. Thrash, Jr.

THOMAS W. THRASH, JR.

United States District Judge

End of Document

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¹ The operative facts on the Motion for Partial Summary Judgment are taken from the parties’ Statements of Undisputed Material Facts and the responses thereto. The Court will deem the parties’ factual assertions, where supported by evidentiary citations, admitted unless the respondent makes a proper objection under Local Rule 56.1(B).