United States District Court, E.D. Texas, Sherman Division.

Shannon TORRES, et al.

v.

Anthony MINNAAR, et al.

CIVIL NO. 4:23-CV-486-SDJ

Attorneys and Law Firms

Channy Farris Wood, Wood Law Firm, LLP, Amarillo, TX, Nicholas D. Mosser, James C. Mosser, Mosser Law PLLC, Plano, TX, for Shannon Torres, et al.

Jason Andrew Powers, Lewis Brisbois Bisgaard & Smith LLP, Houston, TX, for Anthony Minnaar, RD Trans, LLC.

Eric S. Rich, Richard Layne Rouse, Shafer Davis O’Leary & Stoker, Odessa, TX, for ARL Logistics, LLC.

Thomas Dale Farris, Pro Hac Vice, Farris Parker & Hubbard, P.C., Amarillo, TX, for Tili Logistics Corporation.

Zach T. Mayer, Van Trey Parham, III, Nader Arbabi, Mayer LLP, Dallas, TX, for J.B. Hunt Transport, Inc.

MEMORANDUM OPINION AND ORDER

SEAN D. JORDAN, UNITED STATES DISTRICT JUDGE

*1 In the late hours of October 4, 2022, Brandon Torres, a 19-year-old volunteer firefighter serving in the Texas Panhandle Volunteer Fire Department, was returning to his station with his fire chief, Curtis Brown. Anthony Minaar was traveling in the opposite direction on Texas Highway 54, driving a semi-tractor and towing a trailer. Minaar entered the oncoming lane of travel to pass an unknown tractor-trailer and collided head-on with Brown’s vehicle, killing Torres and Brown.

Torres’s parents, Shannon Torres and Jesse Torres, filed suit in Texas state court against Minaar, as well as RD Trans, ARL Logistics, LLC (“ARL”), TILI Logistics Corporation, and JB Hunt Transport, Inc. The Torres’s allege that Minaar was the employee of all Defendants and assert several state-law causes of action premised on negligence, including claims of negligence per se, negligent entrustment, negligent hiring, and gross negligence. The Torres’s assert no federal claims.

Defendant ARL filed a notice of removal, maintaining that this Court has federal question jurisdiction under 28 U.S.C. § 1331. The Torres’s challenge the propriety of removal and seek remand, contending that federal question jurisdiction is absent because there is no federal claim raised in their complaint and no other legitimate ground asserted for jurisdiction under 28 U.S.C. § 1331.

ARL resists remand, maintaining that this Court has federal question jurisdiction because the state-law negligence claims against ARL are completely preempted by the Federal Aviation Administration Authorization Act (“FAAAA”). Alternatively, ARL suggests that Plaintiffs’ negligence claims raise a significant federal issue that creates federal jurisdiction under the Grable doctrine. In Grable, the Supreme Court recognized that “in certain cases federal-question jurisdiction will lie over state-law claims that implicate significant federal issues.” Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 312, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005).

Neither of ARL’s arguments survives scrutiny. ARL’s complete preemption argument fails because, although the FAAAA may afford a preemption defense to ARL, it does not meet the prerequisites for complete preemption and therefore cannot create federal question jurisdiction. ARL’s Grable argument is equally unavailing. The doctrine applies only to a “special and small” category of cases, “typically a state-law claim premised on some component of federal law.” Mitchell v. Advanced HCS, L.L.C., 28 F.4th 580, 588 (5th Cir. 2022) (internal quotation marks and citation omitted). When, as here, the alleged “federal issue” is raised as a defense, it does not appear on the face of the Plaintiffs’ complaint and Grable does not apply.

Because there is no basis for federal question jurisdiction, this case was improperly removed and will be remanded.

I.

“Federal courts are courts of limited jurisdiction, possessing only that power authorized by Constitution and statute.” Gunn v. Minton, 568 U.S. 251, 256, 133 S.Ct. 1059, 185 L.Ed.2d 72 (2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994)). Thus, when a plaintiff sues in state court, a defendant can remove the suit to federal court under 28 U.S.C. § 1441(a) only if the plaintiff could have filed the suit in federal court under a jurisdiction-granting statute. See, e.g., Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987) (citing 28 U.S.C. § 1441(a)).

*2 One such jurisdiction-granting statute is 28 U.S.C. § 1331, which gives federal courts subject-matter jurisdiction over all claims “arising under” federal law. To determine whether a claim arises under federal law, courts apply the well-pleaded complaint rule, which provides that federal question jurisdiction exists “only when a federal question is presented on the face of the plaintiff’s properly pleaded complaint.” Caterpillar, 482 U.S. at 392 (citing Gully v. First Nat’l Bank, 299 U.S. 109, 112–13, 57 S.Ct. 96, 81 L.Ed. 70 (1936)). In cases removed from state court, “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction”—for example, if it becomes apparent that no federal question is presented on the face of the plaintiff’s complaint—the federal court must remand the case to state court. 28 U.S.C. § 1447(c).

Generally, under the well-pleaded complaint rule, a case does not arise under federal law, and thus is not removable, if the complaint does not affirmatively allege a federal claim and instead asserts only state-law causes of action. See Kramer v. Smith Barney, 80 F.3d 1080, 1082 (5th Cir. 1996) (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 10, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)). As the Fifth Circuit has explained, “[t]he well-pleaded complaint rule precludes a plaintiff from predicating federal jurisdiction on an anticipated federal defense to his claim.” La. Indep. Pharm. Ass’n v. Express Scripts, Inc., 41 F.4th 473, 478 (5th Cir. 2022). Even when a plaintiff brings state-law claims that implicate federal law, “those claims cannot alone sustain federal jurisdiction.” Manyweather v. Woodlawn Manor, Inc., 40 F.4th 237, 242 (5th Cir. 2022). Likewise, a defendant cannot remove an action to federal court “unless the plaintiff pleaded a federal question on the face of his complaint.” Id.; see also Stump v. Potts, 322 F. App’x 379, 380 (5th Cir. 2009) (“It is not sufficient for the federal question to be raised in the answer or in the petition for removal.”).

II.

A.

Federal preemption “is ordinarily a federal defense to the plaintiff’s suit” and, as a result, does not support federal question jurisdiction. Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 107 S. Ct. 1542, 1546, 95 L.Ed.2d 55 (1987); see also Caterpillar, 482 U.S. at 393 (explaining that it is “settled law that a case may not be removed to federal court on the basis of a federal defense, including the defense of pre-emption”). Complete preemption is an exception to the well-pleaded complaint rule. It creates federal jurisdiction if Congress, by statute, “completely pre-empt[s] a particular area [such] that any civil complaint raising [the] select group of claims is necessarily federal in character.” Metro. Life Ins., 481 U.S. at 63–64. That happens when a federal law creates an “exclusive cause of action” and “set[s] forth procedures and remedies governing that cause of action,” such that it “wholly displaces the state-law cause of action.” Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 8, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003).

The scope of complete preemption is “narrow.” Manyweather, 40 F.4th at 243. It applies only when three conditions are met. First, federal law “creates a cause of action that both replaces and protects the analogous area of state law.” Mitchell, 28 F.4th at 585 (citation omitted). Second, Congress has empowered federal courts to hear that cause of action. Id. And third, Congress clearly intended that grant of jurisdiction to be exclusive. Id. Once those conditions are met, the party invoking federal jurisdiction must show that the plaintiff “could have brought his state-law claims under th[at] federal cause of action.” Id. (citation omitted); see also Manyweather, 40 F.4th at 243 (same).

*3 Here, ARL’s primary basis for federal question jurisdiction rests on its contention that the FAAAA completely preempts the Torres’s state-law negligence claims. But in all of its remand briefing, ARL fails to even reference the three, above-described conditions that must be met, under controlling Fifth Circuit precedent, in order to apply the complete preemption doctrine. See, e.g., Mitchell, 28 F.4th at 585; Manyweather, 40 F.4th at 243. ARL’s failure to acknowledge the conditions for application of complete preemption, much less demonstrate how the FAAAA meets those conditions as to the state-law negligence claims in this case, dooms its removal argument at the outset. “The removing party bears the burden of showing that federal jurisdiction exists and that removal was proper.” Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002) (collecting cases). Because ARL has not carried this burden, it has failed to demonstrate that removal was proper. For this reason alone, remand is warranted.

B.

Even if it had attempted to do so, ARL could not have demonstrated that the complete preemption doctrine applies in this case. Both the text of the FAAAA and its history confirm that the Act does not create any cause of action whatsoever, much less a civil enforcement remedy that replaces the Texas common law of negligence applicable here.

1.

The Court’s textual analysis of the FAAAA is informed by Supreme Court precedent on complete preemption. To begin, complete preemption is vanishingly rare. The Supreme Court has applied the doctrine to confer jurisdiction in only three instances. First, in Avco Corp. v. Machinists, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968), the Court held that Section 301 of the Labor Management Relations Act (“LMRA”) not only preempted state law, but also authorized removal of actions that sought relief under state law. Id. at 559–62. Section 301 of the LMRA, codified at 29 U.S.C. § 185, provides federal courts with jurisdiction to adjudicate certain “[s]uits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce.” As described by the Supreme Court, “[t]he necessary ground of decision [in Avco] was that the pre-emptive force of § 301 is so powerful as to displace entirely any state cause of action for violation of contracts between an employer and a labor organization.” Franchise Tax Bd., 463 U.S. at 23 (internal quotation marks omitted). The Court went on to explain that “Avco stands for the proposition that if a federal cause of action completely pre-empts a state cause of action any complaint that comes within the scope of the federal cause of action necessarily ‘arises under’ federal law.” Id. at 23–24.

Second, in Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987), the Court determined that the complete preemption doctrine applied to state common-law causes of action asserting improper processing of benefit claims under a plan regulated by the Employment Retirement Income Security Act of 1974 (“ERISA”). The Court focused on Section 502(a)(1)(B) of ERISA, which provides that a civil action may be brought by an ERISA plan participant or beneficiary “to recover benefits due” under the terms of the plan, to enforce rights under the terms of the plan, or to clarify rights and future benefits under the plan. See Metro. Life Ins., 481 U.S. at 64–66; see also 29 U.S.C. § 1132(a)(1)(B). As explained by the Court in Beneficial, there were two reasons for its decision in Metropolitan Life that complete preemption applied: (1) ERISA’s statutory text not only provided an express federal remedy for the plaintiffs’ claims, but also used jurisdictional language similar to the LMRA’s statutory language at issue in Avco, “thereby indicating that the two statutes should be construed in the same way”; and (2) ERISA’s legislative history “unambiguously” revealed an intent to treat claim processing actions subject to ERISA “as arising under the laws of the United States in similar fashion to those brought under [Section 301 of the LMRA].” Beneficial, 539 U.S. at 8 (quoting Metro. Life Ins., 481 U.S. at 65–66).

*4 Finally, in Beneficial, the Court considered whether the National Bank Act completely preempted claims asserted in state court against a national bank for allegedly charging excessive interest in violation of “the common law usury doctrine” and an Alabama statute. 539 U.S. at 3–4. The Court noted that Section 85 of the National Bank Act provides “substantive limits on the rates of interest that national banks may charge,” and Section 86 of the Act “sets forth the elements of a usury claim, provides for a 2-year statute of limitations for such a claim, and prescribes the remedies available to borrowers who are charged higher rates and the procedures governing such a claim.” Id. at 9. The Court went on to conclude that, “[i]n actions against national banks for usury,” Sections 85 and 86 of the Act “supersede both the substantive and the remedial provisions of state usury laws and create a federal remedy for overcharges that is exclusive,” even when a plaintiff relies entirely on state law. Id. at 11.

In sum, every time the Supreme Court has applied the complete preemption doctrine, it has pointed to the text of a federal statute that (1) creates a cause of action that supersedes analogous state law, (2) authorizes federal courts to hear that cause of action, and (3) that the federal statute’s grant of jurisdiction was clearly intended to be exclusive. As the Fifth Circuit has recognized, these are the prerequisites for application of the complete preemption doctrine under controlling Supreme Court precedent. See, e.g., Mitchell, 28 F.4th at 585; Manyweather, 40 F.4th at 243.

2.

Contrary to ARL’s contention, on its face the FAAAA fails to meet the prerequisites for complete preemption. ARL’s removal of this case is premised on two preemption provisions found in the FAAAA. Specifically, ARL has invoked 49 U.S.C. § 14501(c)(1), which provides that no state may “enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier … or any motor private carrier, broker, or freight forwarder with respect to the transportation of property.” 49 U.S.C. § 14501(c)(1). ARL also has invoked 49 U.S.C. § 14501(b)(1), which provides that no state may “enact or enforce any law, rule, regulation, standard, or other provision having the force and effect of law relating to intrastate rates, intrastate routes, or intrastate services of any freight forwarder or broker.” 49 U.S.C. § 14501(b)(1). Taken together, these FAAAA preemption provisions limit state authority to regulate prices, routes, and services of motor carriers, freight forwarders, and brokers.¹

But state law claims that are merely subject to ordinary preemption are not recharacterized as claims arising under federal law. See Rice v. Panchal, 65 F.3d 637, 640 (7th Cir. 1995) (applying this principle in the context of conflict preemption). As the Fifth Circuit has explained, courts and litigants must avoid confusing complete preemption with ordinary or defensive preemption. “Complete preemption gives federal courts the power to adjudicate a case in the first place … while defensive preemption is an affirmative defense that a defendant can invoke to defeat a plaintiff’s state-law claim on the merits by asserting the supremacy of federal law.” Mitchell, 28 F.4th at 585 n.2 (internal quotation marks and citations omitted).²

*5 And neither Section 14501(c)(1) nor Section 14501(b)(1), or for that matter any other provision of the FAAAA, creates any cause of action or federal question jurisdiction. See generally 49 U.S.C. § 14501. Unlike the statutory provisions of LMRA, ERISA, and the National Bank Act considered by the Supreme Court in Avco, Metropolitan Life, and Beneficial, the FAAAA includes no federal remedy or civil enforcement scheme, much less a scheme authorizing a cause of action that may be heard by federal courts. Because the FAAAA, including the preemption provisions cited by ARL, contains “no detailed, comprehensive civil enforcement scheme providing exclusive federal remedies,” Raaf v. UPS Ground Freight, Inc., No. 6:18-CV-00976-MC, 2018 WL 4609935, at *3 (D. Or. Sept. 25, 2018) (internal quotation marks and citation omitted), the statute “does not evidence Congressional intent to transfer jurisdiction over all preemption claims arising thereunder from state to federal courts,” City of Rockford v. Raymond, No. 98 C 50353, 1999 WL 218549, at *2 (N.D. Ill. Apr. 14, 1999).

3.

As explained above, see supra Part II.B.2, the complete preemption doctrine is inapplicable here because the FAAAA’s text does not create any cause of action that “both replaces and protects the analogous area of state law,” Mitchell, 28 F.4th at 585, namely the negligence claims at issue here involving personal injuries resulting from a motor vehicle accident. The history of the FAAAA confirms this result.

The FAAAA was enacted in 1994 as part of “a greater push to deregulate interstate transportation industries.” Ye v. GlobalTranz Enterprises, Inc., 74 F.4th 453, 457 (7th Cir. 2023). It was preceded by the Airline Deregulation Act of 1978 (“ADA”), Pub. L. No. 95-504, 92 Stat. 1705, which largely deregulated the domestic airline industry, and by the Motor Carrier Act of 1980, Pub. L. No. 96-296, 94 Stat. 793, which extended deregulation to the trucking industry. In the FAAAA, “Congress completed the deregulation … by expressly preempting state trucking regulation.” Dan’s City Used Cars, Inc. v. Pelkey, 569 U.S. 251, 256, 133 S.Ct. 1769, 185 L.Ed.2d 909 (2013).

Given its history as a statute extending the ADA’s and the Motor Carrier Act’s deregulation of transportation industries, it is unsurprising that the FAAAA contains preemptive language nearly identical to that in the ADA: “a State, political subdivision of a State, or political authority of 2 or more States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier … with respect to the transportation of property.” 49 U.S.C. § 14501(c)(1); see id. § 41713(b)(4)(A) (same with respect to “air carrier or carrier affiliated with a direct air carrier through common controlling ownership when such carrier is transporting property by aircraft or by motor vehicle”). Because FAAAA Section 14501(c)(1) tracks the ADA, courts analyze the two provisions similarly. See Rowe v. N.H. Motor Transp. Ass’n, 552 U.S. 364, 370, 128 S.Ct. 989, 169 L.Ed.2d 933 (2008).³

Although the Fifth Circuit has not yet addressed whether the FAAAA completely preempts state law, it has addressed and rejected this argument in regard to the ADA’s preemption provision, which FAAAA Section 14501(c)(1) mirrors. Specifically, the Fifth Circuit has held that the ADA’s preemption clause does not provide federal question jurisdiction under the complete preemption doctrine. See Sam L. Majors Jewelers v. ABX, Inc., 117 F.3d 922, 925–26 (5th Cir. 1997) (explaining that the ADA’s text and legislative history show “no evidence that Congress intended the federal courts to have exclusive subject matter jurisdiction over the [ADA’s] preemption defenses”) (quoting Musson Theatrical, Inc. v. Federal Express Corp., 89 F.3d 1244, 1253 (6th Cir. 1996), amended on denial of rehearing, No. 95–5120, 1998 WL 117980 (Jan. 15, 1998)); see also Am. Airlines, Inc. v. Wolens, 513 U.S. 219, 232, 115 S.Ct. 817, 130 L.Ed.2d 715 (1995) (observing that, unlike ERISA, the ADA “contains no hint” that it is intended to channel civil actions into federal courts). For the same reason, the FAAAA, which uses the same language as the ADA, does not completely preempt state law claims. See Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U.S. 71, 85, 126 S.Ct. 1503, 164 L.Ed.2d 179 (2006) (“[W]hen judicial interpretations have settled the meaning of an existing statutory provision, repetition of the same language in a new statute indicates, as a general matter, the intent to incorporate its judicial interpretations as well.”) (internal quotation marks and alteration omitted).

* * * *

*6 Complete preemption occurs only when a federal statute has “extraordinary preemptive power.” Griffioen v. Cedar Rapids and Iowa City Ry. Co., 785 F.3d 1182, 1189 (8th Cir. 2015) (citation omitted). “The ultimate touchstone guiding preemption analysis is congressional intent.” Id. (citation and internal quote omitted). The text and history of the FAAAA, as well as controlling Supreme Court and Fifth Circuit precedent, confirm that the Act does not support application of the complete preemption doctrine, particularly as to the state-law negligence claims at issue in this lawsuit.

C.

ARL has also argued in the alternative that this case raises a significant federal issue that creates federal jurisdiction under the Grable doctrine. This argument also fails.

Grable stands for the proposition that, “in certain cases federal-question jurisdiction will lie over state-law claims that implicate significant federal issues.” 545 U.S. at 312. Grable applies if: “(1) resolving a federal issue is necessary to resolution of the state-law claim; (2) the federal issue is actually disputed; (3) the federal issue is substantial; and (4) federal jurisdiction will not disturb the balance of federal and state judicial responsibilities.” The Lamar Co., L.L.C. v. Miss. Transp. Comm’n, 976 F.3d 524, 529 (5th Cir. 2020) (internal quotation marks and citations omitted). As the Fifth Circuit has observed, “[t]hese conditions are difficult to meet.” Mitchell, 28 F.4th at 588.

The Fifth Circuit has also explained that Grable is applied “in the shadow of the well-pleaded complaint rule.” Id. (citation omitted). Accordingly, courts look to the face of a plaintiff’s well-pleaded complaint to determine whether the issues it raises implicate Grable. Id. Only a “special and small” category of cases can satisfy these requirements. Id. (internal quotation marks and citations omitted). “The type of claim that creates a federal question under Grable is typically a state-law claim premised on some component of federal law.” Id. Thus, for example, a state-law negligence claim creates a federal question when it is premised on the existence of a duty established by federal law. Id.

ARL’s invocation of the FAAAA’s preemption provisions fails to implicate Grable because the relevance of these provisions is purely defensive. When a federal issue is raised “[a]s a defense, it does not appear on the face of a well-pleaded complaint.” Metro. Life Ins., 481 U.S. at 63(citation omitted). Given that the federal issues asserted by ARL under the FAAAA are neither raised nor disputed on the face of the Torres’s personal-injury complaint, Grable does not apply.⁴

D.

When a case is remanded, the court may order the removing party to pay “just costs and any actual expenses, including attorney’s fees, incurred as a result of the removal.” 28 U.S.C. § 1447(c). The Supreme Court has clarified that, absent unusual circumstances, courts may award attorney’s fees under Section 1447(c) “only where the removing party lacked an objectively reasonable basis for seeking removal.” Martin v. Franklin Cap. Corp., 546 U.S. 132, 141, 126 S.Ct. 704, 163 L.Ed.2d 547 (2005). This inquiry should take into consideration “the desire to deter removals sought for the purpose of prolonging litigation and imposing costs on the opposing party, while not undermining Congress’ basic decision to afford defendants a right to remove as a general matter, when the statutory criteria are satisfied.” Id. at 140.

*7 While unsuccessful, ARL had an objectively reasonable basis for seeking removal—that the FAAAA potentially preempts the Torres’s state-law claims. Therefore, the Court will not award costs or expenses to Plaintiffs.

III. Conclusion

For the foregoing reasons it is ORDERED that Plaintiffs’ Motion to Remand, (Dkt. #15), is GRANTED and this action is hereby REMANDED to the 296th Judicial District Court of Collin County, Texas.

So ORDERED and SIGNED this 26th day of February, 2024.

All Citations

Footnotes

1. The FAAAA (Federal Aviation Administration Authorization Act of 1994, Pub. L. No. 103-305, 108 Stat. 1606), was amended by the ICCTA (Interstate Commerce Commission Termination Act of 1995, Pub. L. 104-88, 109 Stat. 899). Although Section 14501(c)(1) was enacted as part of the FAAAA and Section 14501(b)(1) as part of the ICCTA, the Court references the provisions collectively as contained in the FAAAA.  
2. The Court notes that ARL primarily relies on two cases in its briefing, both of which are inapposite because they address defensive preemption, not the complete preemption doctrine: Ye v. GlobalTranz Enterprises, Inc., 74 F.4th 453 (7th Cir. 2023); and Aspen Am. Ins. Co. v. Landstar Ranger, Inc., 65 F.4th 1261 (11th Cir. 2023).  
3. FAAAA Section 14501(b)(1) also tracks the language of the ADA. Accordingly, there is no reason treat it differently than Section 14501(c)(1) in this analysis.  
4. Defendant ARL contends that 28 U.S.C. § 1337, which gives federal courts original jurisdiction over “any civil action or proceeding arising under any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies,” also supports removal. However, this argument fails for the same reasons discussed above.  

End of Document

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United States District Court for the Middle District of Alabama, Northern Division

March 14, 2024, Decided; March 14, 2024, Filed

Case No. 2:20-cv-85-RAH

Reporter

2024 U.S. Dist. LEXIS 45112 *; 2024 WL 1120107

STEPHANIE OAKLEY, as administrator of the Estate of Wyman Lucicus, deceased, Plaintiff, v. A.L. LOGISTICS, LLC, Defendant.

Counsel:  [*1] For Stephanie Oakley, as administrator of the Estate of Wyman Lucicus, Deceased, Plaintiff: Samuel P McClurkin, IV, LEAD ATTORNEY, Long and Long, Mobile, AL; Walton Ward Hickman, LEAD ATTORNEY, Long & Long, P.C., Mobile, AL.

For A.L. Logistics, LLC, Defendant: Jonathan Keith Corley, LEAD ATTORNEY, Whittelsey & Corley PC, Opelika, AL; Robert G. Poole, LEAD ATTORNEY, The Poole Law Firm, LLC, Auburn, AL.

Judges: R. AUSTIN HUFFAKER, JR., UNITED STATES DISTRICT JUDGE.

Opinion by: R. AUSTIN HUFFAKER, JR.

Opinion

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

In this standing vehicle case, Plaintiff’s son, the decedent, died during the early morning hours of July 20, 2017, when his vehicle drifted over the fog line on an interstate and struck a broken-down tractor-trailer that was parked on the shoulder within inches of the fog line. Stephanie Oakley, as administrator of the Estate of Wyman Lucicus (the Estate) filed suit under the Alabama Wrongful Death Act, Ala. Code § 6-5-410, asserting negligence and wantonness. The Defendant, A.L. Logistics, LLC (ALL), has moved for summary judgment. The motion is fully briefed and ripe for review. It will be granted in part.

II. JURISDICTION AND VENUE

The Court exercises subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1332. The [*2]  parties do not contest personal jurisdiction or venue, and the record supports both.

III. BACKGROUND

On July 19, 2017, Ricardo Diaz was driving his tractor-trailer (rig), heading south on I-65 in Butler County, Alabama, when it broke down on the interstate. Diaz parked the rig on the shoulder on top of the rumble strip within inches of the fog line and therefore within inches of passing traffic. (Doc. 64-6 at 4, 8, 11, 12; Doc. 72-1.)

(Doc. 72-1.) Both Diaz and ALL decided to have the rig repaired on the side of the interstate instead of having it towed to another location. (Doc. 72-3 at 26, 45; Doc. 73-4 at 93-94.) At the time of the accident made the basis of this lawsuit, the rig had been on the side of the interstate for over 12 hours. (Doc. 73-4 at 94; Doc. 64-5 at 12.)

During the early morning hours of July 20, 2017, Wyman Lucicus was driving south on I-65 from Tennessee to Brewton, Alabama. At around 2:15 a.m., Lucicus, for unknown reasons, apparently began to drift to the right shoulder of the interstate and over the fog line. The right front of his vehicle struck the left rear of Diaz’s rig. (Doc. 72-1; Doc. 72-3 at 50; Doc. 72-2 at 9.) Lucicus died because of the injuries he [*3]  suffered in the accident.

Another truck driver witnessed the crash. In his deposition, taken six years after the accident, the witness stated that Lucicus had passed him going south and struck the back of the rig. (Doc. 72-2 at 8.) He also stated that there were no emergency or warning triangles placed behind the rig, nor were the rig’s lights turned on.¹ (Doc. 72-2 at 10-11, 14-17.) Diaz testified differently, stating that he did turn his lights on and did set out emergency triangles. (Doc. 72-3 at 41-42, 50-51.)

Trooper Jeremy Burkett of the Alabama Law Enforcement Agency (ALEA) arrived at the scene several hours after the accident and investigated. (Doc. 64-5 at 11.) At the scene, he observed that the rig was parked on the shoulder of the interstate just outside of the fog line but on top of the rumble strip, that three warning triangles were placed behind the rig, that the rig’s parking lights were on, and that the rig had the appropriate reflective tape. (Doc. 64-5 at 17, 21.) Burkett also stated that the rig was legally parked but that it should have been towed to the next exit to be repaired due to safety reasons. (Doc. 64-5 at 30-31.)

IV. STANDARD OF REVIEW

Summary judgment is proper [*4]  if there is “no genuine issue as to any material fact and . . . the moving party is entitled to a 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). See also Fed. R. Civ. P. 56(a). The moving party “always bears the initial responsibility of informing the district court of the basis for its motion,” and should rely on submissions “which it believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323. Once the moving party has met its burden, the nonmoving party must “go beyond the pleadings” and show that there is a genuine issue for trial. Id. at 324. Both the party “asserting that a fact cannot be,” and a party asserting that a fact is genuinely disputed, must support their assertions by “citing to particular parts of materials in the record,” or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A)-(B).

To avoid summary judgment, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). On the other hand, the evidence of the nonmovant must be believed and “all justifiable inferences must be drawn in its favor.” Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

V. DISCUSSION

The Estate’s [*5]  negligence and wantonness claims fall into two general categories: (1) those theories relating directly to the crash itself and Diaz’s and ALL’s actions immediately preceding it—like parking the rig within inches of the fog line and passing traffic for an extended period of time and into the night, without displaying any lights or setting out any warning triangles or cones, and without towing the rig to another location—and (2) other theories relating to ALL’s business operations, truck maintenance and inspection, record-keeping, drug-testing, and hiring, training, and supervision of Diaz.

ALL moves for summary judgment on all claims. It argues that Diaz did not act negligently or wantonly and that no negligent or wanton act by Diaz was the proximate cause of the accident. Instead, according to ALL, it was Lucicus’s own actions in drifting out of his lane of traffic and over the fog line that was the proximate and intervening cause of the accident. ALL also argues there is no evidence that ALL negligently or wantonly maintained or inspected the rig or that Diaz was an incompetent driver, and that the Estate’s other theories of negligence and wantonness are not actionable.

In response, [*6]  with little discussion of the law and heavy reliance on alleged facts, the Estate focuses on photographs of the rig parked just off the interstate’s lane of travel, the testimony of two witnesses (the eye-witness and the investigating trooper) concerning the location of the rig together with the lack of illuminating lights and warning triangles, and Diaz’s decision to leave the rig on the side of the interstate for over 12 hours and into the darkness of the night within inches of passing traffic—instead of having the rig towed to a safer location. The Estate also cites to ALL’s failure to timely drug-test Diaz, issues with the rig’s maintenance and inspection records and logbooks, and Diaz’s commercial driver’s license status, all to raise genuine issues of material facts.

As to the second category of negligence and wantonness—like negligent and wanton maintenance, inspection, hiring, training, supervision, and retention—ALL is entitled to summary judgment. ALL points to the Estate’s lack of evidence of proximate causation; that is, that the alleged instances of negligence and wantonness in the inspection and maintenance of the rig or in the hiring, training, retention, and supervision [*7]  of Diaz did not proximately cause the accident under the facts presented here. The Estate does little, if anything, to respond. Instead, the Estate’s response focuses on Diaz’s decision to park and leave the rig for an extended duration into the night without illuminating lights and warning triangles: allegations that go directly to the Estate’s first category of claims—its negligence and wantonness claims targeting the events of the crash itself.

In not responding, or at least not sufficiently responding, to ALL’s summary judgment arguments on its second category of theories and claims, the Estate has abandoned them. Clark v. City of Atlanta, 544 F. App’x 848, 855 (11th Cir. 2013) (holding that district court properly treated claims as abandoned where they were alleged in the complaint but not addressed in opposition to a motion for summary judgment). But even if the Estate’s response could be construed as sufficiently addressing these theories, the Estate has not shown a question of fact on Diaz’s competence to drive a commercial vehicle or ALL’s knowledge of his alleged incompetence. The record is devoid of evidence that Diaz was incompetent, that any such incompetence played any role in the accident, or that ALL was aware of or should have been [*8]  aware of that incompetence. See, e.g., Bishop v. R.A. Wagner Trucking Co., Nos. 4:11-cv-2457, 4:12-cv-2003, 2014 U.S. Dist. LEXIS 19709, 2014 WL 636987 (N.D. Ala. Feb. 18, 2014). And the Estate fails to show or provide any legal argument whatsoever showing why the status of Diaz’s driver’s license, if assumed true and standing alone, is admissible or relevant to the issue of Diaz’s negligence or wantonness, or to the accident in general. See, e.g., Chattahoochee Valley Ry. Co. v. Williams, 267 Ala. 464, 103 So. 2d 762, 767 (Ala. 1958); Mason v. New, 475 So. 2d 854, 856 (Ala. 1985). Accordingly, ALL’s summary judgment motion on the Estate’s theories and claims concerning negligent and wanton hiring, training, supervision, and retention of Diaz and the failure to maintain or inspect the rig, to have or enforce adequate policies and procedures, to educate Diaz, to periodically audit or check drivers, to periodically audit driver logs for hour violations, or to design systems that drivers are trained is due to be granted. (Doc. 29 at 2, ¶¶5-7).

That leaves for discussion the real issues in the case—the decision to park the rig within inches of passing traffic for an extended period of time and into the night instead of having it towed; the presence or lack of warning measures such as lights and warning triangles; and Lucicus’s own actions in drifting out of his lane of traffic. Some of these factual issues are disputed and some turn on issues of proximate [*9]  cause and foreseeability.² From ALL’s perspective, it argues that it is entitled to summary judgment as a matter of law because Diaz did not act negligently or wantonly, and even if he did, that negligence or wantonness was not the proximate cause of the accident because it was Lucicus’s own intervening actions in drifting out of his lane that caused the accident.

A. The Negligence Claim

Since this case is filed in federal court on diversity jurisdiction grounds, Alabama law applies to the substantive issues and federal law to the procedural issues. Hanna v. Plumer, 380 U.S. 460, 465, 85 S. Ct. 1136, 14 L. Ed. 2d 8 (1965); Erie R.R. Co. v. Tompkins, 304 U.S. 64, 80, 58 S. Ct. 817, 82 L. Ed. 1188 (1938). To prevail on a negligence claim in Alabama, a plaintiff must show that the defendant owed the plaintiff a legal duty, that the defendant breached that duty, that the plaintiff suffered a loss or injury, and that the defendant’s breach was an actual and proximate cause of the injury. QORE, Inc. v. Bradford Bldg. Co., 25 So. 3d 1116, 1124 (Ala. 2009). “Proximate cause is an act or omission that in a natural and continuous sequence, unbroken by any new and independent causes, produces an injury or harm and without which the injury or harm would not occur.” Morguson v. 3M Co., 857 So. 2d 796, 800 (Ala. 2003). (citing Dillard v. Pittway Corp., 719 So. 2d 188, 192 (Ala. 1998)). “The cornerstone of proximate cause is foreseeability.” Id. (citations omitted). Generally, a defendant owes a duty of care to all persons [*10]  who are foreseeably endangered by his conduct with respect to all risks which make the conduct unreasonably dangerous. Foreseeability establishes a zone of risk, which is to say that it forms a basis for assessing whether the conduct creates a generalized and foreseeable risk of harming others. It “must be based on the probability that harm will occur, rather than the bare possibility.” Ex parte Wild Wild West Social Club, Inc., 806 So. 2d 1235, 1241 (Ala. 2001) (citing 65 C.J.S. Negligence § 4(3) (1966)).

“In Alabama, the issue of proximate causation hinges on foreseeability and is intertwined, analytically, with the concept of intervening cause.” Springer v. Jefferson Cnty., 595 So. 2d 1381, 1384 (Ala 1992). An intervening cause is “one which occurs after an act committed by a tortfeasor and which relieves him of his liability by breaking the chain of causation between his act and the resulting injury.” General Motors Corp. v. Edwards, 482 So. 2d 1176, 1194 (Ala. 1985) (citing Vines v. Plantation Motor Lodge, 336 So. 2d 1338 (Ala. 1976)), overruled on other grounds by Schwartz v. Volvo North America Corp., 554 So. 2d 927 (Ala. 1989). Stated otherwise, a negligent party is accountable only to those injured as a proximate result of such negligence, and “[w]here some independent agency intervenes and is the immediate cause of the injury, the party guilty of prior negligence is not liable.” Hall v. Booth, 423 So. 2d 184, 185 (Ala. 1982). To say that an event occurring after a defendant’s negligence was the “sole proximate cause” of the plaintiff’s injury is simply another way of [*11]  saying that the event was an intervening cause that prevents the defendant from being liable for the injury. See General Motors Corp, 482 So. 2d at 1194. “If an intervening cause could have reasonably been foreseen at the time the tortfeasor acted, it does not break the chain of causation between his act and the injury.” Id.at 1195. “In the same respect, if the intervening cause is not sufficient to be considered the sole ’cause in fact’ of the injury, if it is not in and of itself sufficient to stand as the ‘efficient cause’ of the injury, the causal chain is not broken; but, if the intervening cause was alone sufficient to produce the injury complained of, it is deemed the proximate cause of the injury[.]” Id.

Regarding ALL’s summary judgment motion, the Court must determine whether ALL has shown there is no genuine issue of material fact concerning the proximate cause of the crash. First, it must be noted that the “question of proximate cause is almost always a question of fact to be determined by the jury,” and it “must go to the jury if reasonable inferences from the evidence support the theory of the complaint.” Marshall Cnty. v. Uptain, 409 So. 2d 423, 425 (Ala. 1981). “[I]t is only when the facts are such that [a reasonable person] must draw the same conclusion that the question [*12]  of proximate cause is one of law for the courts.” Giles v. Gardner, 287 Ala. 166, 249 So. 2d 824, 826 (Ala. 1971). It becomes a legal question for a court’s decision only when “the facts of the cause are not conflicting, and where there can be no reasonable difference of opinion as to the conclusion to be reached upon them[.]” Alabama Power Co. v. Moore, 899 So. 2d 975, 979 (Ala. 2004) (citation omitted).

Further, while the issue of foreseeability in the context of an intervening cause may be decided as a matter of law, it too is more commonly a question for the trier of fact. Peters v. Calhoun Cnty. Comm’n, 669 So. 2d 847, 850 (Ala. 1995).

Here, genuine issues of material fact exist concerning foreseeability and the proximate cause of the crash and Lucicus’s death. First, when viewing the evidence in a light favorable to the Estate, a reasonable jury could find that Diaz, when he parked his rig on the shoulder of a busy interstate within inches of passing traffic for an extended period of time and into the night, and/or doing so with no hazard lights or reflective triangles in place, could have foreseen that an oncoming vehicle may drift and run into the rear of his rig and that serious injuries could result. Interstate drivers may be intoxicated, distracted, blinded by the sun or weather, sleepy or sick, and may therefore drift off the roadway. If they do so at interstate [*13]  speeds and collide with another vehicle parked alongside the interstate, they are likely to be injured or injure other occupants of the vehicles, or both. The foreseeability of such collisions is precisely the reason why Department of Transportation regulations require the use of flashers and warning triangles and why rules are in place requiring the removal of vehicles from the shoulder of busy interstate highways after a certain period, why rumble strips and guardrails are used, and why trees and other stationary structures are generally prohibited within a certain area around an interstate. (See, e.g., Doc. 64-5 at 19; Doc. 64-13 at 2-10; Doc. 72-5 at 69.) E.g., Ala. Code §§ 32-5-51, 32-10-1(c).

ALL contends that Diaz’s actions were a remote cause and that Lucicus’s own actions were an intervening cause that severed any chain of causation that may have existed from Diaz’s conduct. Resolution of that issue involves the same foreseeability analysis. The act of drifting from the traveled portion of an interstate road into the shoulder or emergency lane and at night is not so egregious a departure from ordinary standards of care as to be unforeseeable as a matter of law. This is true even if the driver can offer [*14]  no reason for leaving the road. A jury should decide whether Lucicus’s actions in drifting out of his lane of traffic under the circumstances here was so far outside the bounds of reasonable driving as to be unforeseeable by Diaz, or that it constituted contributory negligence.

That Diaz was not in violation of a specific rule, regulation, or statute at the time he parked his rig on the shoulder of the interstate does not immunize him from liability for negligence. And that the accident here occurred partly on the shoulder of the interstate rather than the traveled portion of the interstate is not enough to establish as a matter of law that Lucicus was the sole proximate cause of the accident. Actors are responsible not only for the likely consequences of their acts or omissions, but also for the consequences that might reasonably be anticipated; that is, those consequences that are reasonably foreseeable. If an injury is foreseeable from the original negligent act or omission, the intervening act of an independent agency will not constitute a defense because it does not cut off the chain of causation, and the party guilty of the original act or omission will be held responsible.

On [*15]  this record, it would be improper to declare as a matter of law that Lucicus’s actions were not reasonably foreseeable and amounted to an intervening cause, especially when the Court is obligated to draw all inferences in favor of the Estate. Reasonable minds may differ on the questions here, and summary judgment is not appropriate. The Estate’s negligence claim directly relating to the operative events of July 19 and 20, 2017, will proceed.

B. The Wantonness Claim

ALL also seeks summary judgment on the Estate’s wantonness claim relating to the events of July 19 and 20, 2017. In addition to arguing the lack of a duty on Diaz’s part and intervening fault on Lucicus’s part, ALL argues its entitlement to summary judgment because the facts do not support a triable claim of wantonness. The Estate, for its part, advances the same facts here as it did to support its claim for negligence. And, again, the Estate makes no legal argument. It just cites the evidence.

Under Alabama law, “[w]antonness is the doing of some act or the omission to do some act with reckless indifference that such act or omission will likely or probably result in injury.” IMAC Energy, Inc. v. Tittle, 590 So. 2d 163, 168 (Ala. 1991); accord Blizzard v. Food Giant Supermarkets, Inc., 196 F. Supp. 2d 1202, 1208 (M.D. Ala. 2002) (citations omitted); see also Ala. Code § 6-11-20(b)(3) (defining [*16]  wantonness as “[c]onduct which is carried on with a reckless or conscious disregard of the rights or safety of others”). Wantonness requires evidence of a defendant’s reckless or conscious disregard of the rights and safety of others. See Wal-Mart Stores, Inc. v. Thompson, 726 So. 2d 651, 653 (Ala. 1998). And “[w]antonness may arise [when one has] knowledge that persons, though not seen, are likely to be in a position of danger, and with conscious disregard of known conditions of danger and in violation of law brings on disaster.” Smith v. Bradford, 512 So. 2d 50, 52 (Ala. 1987) (alteration in original) (citation omitted).

Even though wantonness requires a conscious or an intentional act, “the actor’s knowledge may be proved by showing circumstances from which the fact of knowledge is a reasonable inference; it need not be proved by direct evidence.” Hicks v. Dunn, 819 So. 2d 22, 23 (Ala. 2001) (quoting Scott v. Villegas, 723 So. 2d 642, 643 (Ala. 1998)). “[I]t is not essential to prove that the defendant entertained a specific design or intent to injure the plaintiff.” Alfa Mut. Ins. Co. v. Roush, 723 So. 2d 1250, 1256 (Ala. 1998) (per curiam).

In the context of motor vehicle accidents, including a standing vehicle accident such as this one, wantonness depends on the particular facts presented in each case. Cheshire v. Putman, 54 So. 3d 336, 342 (Ala. 2010) (per curiam). And, under Alabama law, there is a rebuttable presumption that a driver does not act wantonly in causing a car accident. See Thomas v. Heard, 256 So. 3d 644, 657-58 (Ala. 2017) (per [*17]  curiam). That is because people “act in their own self-interest,” and thus, a driver has “no consciousness that an injury would likely occur from his actions because presumably he would not engage in activity that would knowingly result in harm to himself.” Id. at 658.

However, where a driver’s actions are more dangerous to other parties than to himself, the presumption against self-destructive behavior—and therefore wantonness—does not apply. See McCutchen v. Valley Home, Inc., 100 F. Supp. 3d 1235, 1240 (N.D. Ala. 2015) (finding that the fact a driver acknowledged that the driver of an 18-wheeler is generally safer in a collision than the driver of the other vehicle meant that the presumption against self-destructive behavior did not apply); Griffin v. Modular Transp. Co., No. 2:12-CV-2378-WMA, 2014 U.S. Dist. LEXIS 28734, 2014 WL 896627, at *4 (N.D. Ala. Mar. 6, 2014) (determining that “[a] collision between a car and the flatbed portion of a tractor trailer does not carry the same risk of injury to the trailer driver as it does to the car driver[,]” and therefore the presumption against self-destructive behavior was inapplicable).

Moreover, even when the presumption against self-destructive behavior applies, this presumption may be overcome by showing the driver’s judgment was impaired or that the conduct at issue was so inherently reckless that a court might otherwise attribute to the driver [*18]  depravity consistent with disregard of instincts of safety and self-preservation. “Inherently reckless behavior, for example, might be driving in reverse on a major interstate; driving through an intersection at a very fast speed after ignoring a stop sign; or abruptly moving from the right lane into the left lane after seeing a video store on the left and deciding to stop and get a movie.” Craft v. Triumph Logistics, Inc., 107 F. Supp. 3d 1218, 1222 (M.D. Ala. 2015) (cleaned up). “In each of these instances, something more than mere inattention, that is, an exacerbating circumstance, contributed to the accident.” Id.

The question is whether there is sufficient evidence from which a jury could reasonably find wantonness when the facts are viewed in the light most favorable to the Estate. There is.

In this regard, a jury could find that Diaz made a conscious and deliberate decision to park his rig in the location where he did, i.e., within inches of a busy interstate lane of travel over an extended period of time and into the night and without turning on his truck lights or placing out warning triangles, and that he and ALL decided to have the rig repaired there instead of having it towed to another, safer location, all of which exposed other drivers to an unnecessary [*19]  and hazardous risk.³

Although ALL argues that Diaz’s actions, if true, were unavoidable and reasonable—at worst mere inadvertence or negligence—which they may have been, there are also facts in the record suggesting Diaz could have acted recklessly or with conscious disregard for the safety of others. Whether he did is a fact-driven analysis appropriate for a jury. See, e.g., Johnson v. ABF Freight Sys. Inc., No. 2:18-cv-01835-MHH, 2021 U.S. Dist. LEXIS 68460, 2021 WL 1320500, at *2-4 (N.D. Ala. Apr. 8, 2021) (denying summary judgment on wantonness claim in motor vehicle accident case where truck driver created a hazardous situation with his chosen method in attempting to make a turn); Shows v. Redline Trucking, LLC, No. 2:18-cv-01692-AKK, 2020 U.S. Dist. LEXIS 86377, 2020 WL 2527105, at *3-4 (N.D. Ala. May 18, 2020) (finding that plaintiff’s contention that defendant stopped his trailer in a lane of travel during a dark morning without illuminating any lights was sufficient to preclude summary judgment on wantonness claim); McCutchen, 100 F. Supp. 3d at 1240 (denying summary judgment on a wantonness claim because a genuine dispute of material fact existed as to whether the driver of tractor-trailer turned his large rig around on the highway in conscious disregard of the alleged danger to traffic he was creating); Monroe v. Brown, 307 F. Supp. 2d 1268, 1271-72 (M.D. Ala. 2004) (admonishing that courts should be mindful of the Alabama Supreme Court’s holding that wantonness should be submitted to the jury unless there is a “total lack” of evidence [*20]  from which the jury could reasonably infer wantonness). Thus, ALL’s motion for summary judgment is due to be denied on the Estate’s wantonness claim directly relating to the operative events of July 19 and 20, 2017.

VI. CONCLUSION

Accordingly, it is ORDERED as follows:

1. The Defendant’s Motion for Summary Judgment (doc. 63) is GRANTED in part and DENIED in part as set forth above. Summary judgment is denied as to the Estate’s claims for negligence and wantonness against Defendant A.L. Logistics, LLC as they concern Ricardo Diaz’s actions on July 19 and 20, 2017: parking and leaving the tractor-trailer in the position depicted in the record in the location that he did for as long as he did, engaging the tractor-trailer’s lights, and setting out warning triangles. Summary judgment is further denied to the extent Defendant seeks summary judgment that Wyman Lucicus’s actions constitute contributory negligence or an intervening act as a matter of law. Summary judgment is granted in all other respects.

2. Plaintiff’s Motion to File Sur-Reply (doc. 74) is GRANTED, and the sur-reply is received as filed.

3. Defendant’s Motion in Limine (doc. 66) is DENIED as moot. Defendant may refile the motion [*21]  in advance of trial, directed to the remaining issues in this case;

4. This case will be set for a jury trial on Plaintiff’s remaining claims by a separate order.

DONE on this the 14th day of March 2024.

/s/ R. Austin Huffaker, Jr.

R. AUSTIN HUFFAKER, JR.

UNITED STATES DISTRICT JUDGE

End of Document

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¹ The witness’s testimony about the lack of warning triangles differed from a sworn statement he gave several weeks after the accident. (Doc. 64-9 at 6; Doc. 72-2 at 17, 20.)

² ALL also argues that the Estate raises issues of negligence that were not explicitly pleaded in the Amended Complaint and should therefore be ignored. The Court generally agrees that a plaintiff cannot amend a complaint through briefing. However, the Amended Complaint cannot be so narrowly construed as ALL argues. Indeed, if that is the measure by which negligence pleadings must be pleaded in federal court, then ALL’s contributory negligence affirmative defense suffers the same infirmity and should be ignored.

³ ALL has advanced legitimate reasons for Diaz’s decision to park his rig where he did and for not having the rig towed to another location, and it has presented evidence suggesting that the rig’s lights were on, and the warning triangles set out. But these are factual issues for consideration by the jury. They are not appropriate for a dispositive ruling as a matter of law, especially when gauged against the favorable inferences for the Estate that must be employed at this stage of the proceeding.