United States District Court,

W.D. Pennsylvania.

CYPRESS INSURANCE COMPANY, Plaintiff,

v.

MICKENS TRANSPORTATION SPECIALISTS and David K. Barren, Defendants.

Civil Action No. 17-246

|

Signed 04/28/2017

Attorneys and Law Firms

Michael A. Oropallo, Hiscock & Barclay, Syracuse, NY, for Plaintiff.

Steven M. Pavsner, Joseph, Greenwald & Laake, P.A., Greenbelt, MD, for Defendants.

MEMORANDUM OPINION

Nora Barry Fischer, United States District Judge

1. INTRODUCTION

*1 This is a declaratory judgment action brought by Plaintiff-insurer Cypress Insurance Company (“Cypress”) arising from the attempted collection of a default judgment of $975,000.00 entered in favor of Defendant David K. Barren (“Barren”) and against Defendant-insured Mickens Transportation Specialists, (“Mickens Transportation”) in state court in South Carolina. (Docket No. 1). Presently before the Court is a motion filed by Barren seeking dismissal and/or transfer of this action to the U.S. District Court for the District of South Carolina where a related action is pending. (Docket No. 6, 10). Cypress opposes the motion. (Docket No. 12). Mickens Transportation has not yet formally appeared in this case.1 After careful consideration of the parties’ positions, and for the following reasons, Barren’s Motion [6] is granted to the extent that the Court will transfer this matter pursuant to the “first filed rule” or alternatively, under the discretionary transfer statute, 28 U.S.C. § 1404(a).

 

1. BACKGROUND

By way of background, the underlying state court lawsuit involved a trucking accident that occurred on August 1, 2014 in Saint Matthews, South Carolina, during which a driver employed by Mickens Transportation drove into Barren, who was walking on the grounds of a gas station, causing him substantial injuries. (Docket No. 1 at ¶¶ 7-10). As Mickens Transportation’s insurer, Cypress was made aware of the accident and the potential for a claim, hiring a Georgia-based company, Bridgewater, as its investigator. (Id. at ¶ 13). Mickens Transportation was served with the lawsuit but apparently did not timely respond to the state court action. (Id. at ¶¶ 22-27). At a default judgment hearing, a state court in South Carolina awarded $975,000.00 in damages in favor of Barren and against Mickens Transportation. (Id. at ¶ 30). James Mickens apparently appeared at the hearing without counsel and testified. (Id. at ¶ 29). Thereafter, Barren sought to collect the judgment from Cypress and much litigation has ensued, with one of the central disputes being whether Mickens Transportation and/or Barren notified Cypress of the underlying lawsuit, the default or the default judgment hearing. (Id. at ¶ 47).

 

At present, there is litigation surrounding this default judgment in three different courts: (1) the removed case in the United States District Court for the District of South Carolina at Docket Number 5:17-cv-00772 which was filed initially by Barren in state court on February 20, 2017 and where Cypress has counterclaims pending; (2) this federal case filed by Cypress on February 24, 2017, where Cypress has claims pending; and, (3) the underlying state court action where on February 27, 2017, counsel entered an appearance for Mickens Transportation and moved to set aside the default judgment and Cypress also moved to intervene into the proceedings, both of which are pending. All three of these actions taken by Cypress have the same general goal, i.e., to set aside the default judgment and avoid paying the $975,000.00 default judgment against its insured, Mickens Transportation.

 

*2 Notably, Cypress admits that the declaratory judgment claims raised in this case are identical to the counterclaims it has now asserted in federal court in South Carolina. (See Docket No. 12 at 12 “Out of an abundance of caution, Cypress had filed as counterclaims in South Carolina all the claims it first raised in this action (and will file similar counterclaims in response to the amended complaint), although Cypress prefers to have the dispute heard in this Court.”). In both federal cases, Cypress seeks declaratory judgments of: (1) late notice in that Mickens Transportation did not notify it of the underlying state court action to which Mickens Transportation did not timely respond and that resulted in the default judgment; (2) the MCS-90 endorsement requiring that the insurer pay any judgment should not be enforced as to the default judgment obtained in the South Carolina state court matter; and (3) extrinsic fraud in procurement of the judgment by Barren and Mickens Transportation. (Docket No. 1). As noted, it appears that the state court in South Carolina has not yet issued a decision on the motion to set aside the default judgment filed by Mickens Transportation or the motion to intervene filed by Cypress. See David K. Barren v. Mickens Transportation Specialists, Inc., Case No. 2015-CP-0900135, (C.P., Calhoun Cty., S.C.).

 

With respect to the present matter, Cypress seeks to invoke the diversity jurisdiction of this Court under 28 U.S.C. § 1332(a)(1) as well as the Court’s authority to declare the parties’ rights under the Declaratory Judgment Act, 28 U.S.C. § 2201. (Id. at ¶ 1). The parties are diverse as Cypress is a citizen of Nebraska and California; Mickens is a citizen of Georgia; and Barren is a citizen of Pennsylvania. (Id. at ¶¶ 1-3). The matter in controversy exceeds $75,000.00 because the action seeks to invalidate the state court judgment of $975,000.00. (Id. at ¶¶ 5, 47).

 

Barren filed the pending motion to dismiss/transfer and his brief in support on March 31, 2017. (Docket Nos. 6; 10). Cypress responded by filing its brief in opposition on April 21, 0217. (Docket No. 12). The Court considers the matter fully briefed and ripe for disposition.

 

III. DISCUSSION

Turning to the applicable legal standards, the determinations of whether to dismiss or transfer a case under the “first filed rule” or to transfer a matter under 28 U.S.C. § 1404(a) are committed to the sound discretion of the trial court. See Chavez v. Dole Food Co., Inc., 836 F.3d 205, 220 (3d Cir. 2016) (district court has discretion to transfer matter under first filed rule); Ogundoju v. Attorney General of U.S., 390 Fed.Appx. 134, 137 n.2 (3d Cir. 2010) (district court has discretion to transfer matter under 1404(a)). It is this Court’s opinion that it is an appropriate exercise of discretion to transfer this case to the District of South Carolina under both legal principles. Id. It will be up to the presiding Judge in South Carolina to determine whether it is appropriate to: stay the federal declaratory judgment claims/counterclaims in favor of the pending state court litigation to set aside the judgment; dismiss the action under Rule 12(b)(6); or decline to exercise jurisdiction over the matter under the Declaratory Judgment Act. The Court briefly turns to its rationale supporting the decision to transfer this duplicative and subsequently filed case to South Carolina.

 

It is well-established that courts have broad discretion to manage cases in an effort to avoid wasteful and duplicative litigation. See, e.g., Colorado River Water Cons. Dist. v. United States, 424 U.S. 800, 817 (1976). The recent amendments to Rule 1 of the Federal Rules of Civil Procedure should make clear that the parties share the responsibilities with the Court to “secure the just, speedy, and inexpensive determination of every action and proceeding.” See FED. R. CIV. P. 1 (eff. Dec. 1, 2015). In this regard, the “first-filed” rule “is a comity-based doctrine stating that when duplicative lawsuits are filed successively in two different federal courts, the court where the action was filed first has priority.” Chavez, 836 F.3d at 210. “A district court applying the first-filed rule has the ability to ‘enjoin the subsequent prosecution of proceedings involving the same parties and the same issues already before another district court.’ ” Sinclair Cattle Co. Inc., v. Ward, 80 F. Supp. 3d 553, 558 (M.D. Pa. 2015) (quoting EEOC v. Univ. of Pennsylvania, 850 F.2d 969, 971 (3d Cir. 1988)). “[I]n the vast majority of cases, a court exercising its discretion under the first-filed rule should stay or transfer a second-filed suit.” Chavez, 836 F.3d at 220.

 

*3 Here, there is no dispute that Barren’s state court lawsuit which is now pending in the District of South Carolina was the first filed action. (Docket Nos. 10; 12). In addition, Cypress admits that its claims in this lawsuit and its counterclaims in the South Carolina suit are identical and this Court’s review of both pleadings confirms same. (See Docket Nos. 1; 12). Despite this admission, Cypress attempts to avoid the application of the doctrine by arguing that the action filed first by Barren which is now pending in South Carolina federal court is an “anticipatory suit” and/or should be precluded based on the alleged inequitable conduct of Barren that form the basis for Cypress’ claims in this lawsuit. (Id.). Neither position is persuasive to this Court.

 

Relevant here, “a suit is ‘anticipatory’ for the purposes of being an exception to the first-to-file rule if the plaintiff in the first-filed action filed suit on receipt of specific, concrete indications that a suit by the [opposing party] was imminent.” Ward, 80 F. Supp. 3d at 561 (quoting Pittsburgh Logistics Sys., Inc. v. C.R. England, Inc., 669 F. Supp. 2d 613 (W.D. Pa 2009)). But, Barren’s declaratory judgment suit was not “anticipatory” in this context because it was filed in response to the attached letter from Cypress’ counsel dated January 26, 2017 which made no mention of filing this federal declaratory judgment action. (See Docket No. 12-2). Rather, the substance of the letter advises only that Cypress believed that there was a sufficient basis under the South Carolina Rules of Civil Procedure to set aside the default judgment in state court, provides citations to caselaw in a purportedly analogous situation, and asks that Barren’s counsel voluntarily set aside the default judgment. (Id.). If anything, Barren’s lawsuit was anticipatory as to the forthcoming motion to set aside the default judgment, which was filed by Mickens Transportation—presumably after being appointed counsel by Cypress—a few days later in South Carolina state court. See Ward, 80 F. Supp. 3d at 561. In short, this Court finds nothing inequitable about Barren filing the declaratory judgment suit in the same court where the default judgment was issued and where he expected a motion to set it aside would be lodged. To the contrary, Cypress’ filing of this lawsuit against its own insured in a foreign forum with little connection to the parties’ disputes—days after its counsel received Barren’s state court lawsuit—appears to be the result of Cypress’ forum-shopping in an effort to find a more favorable jurisdiction. Cf. CollegeSource, Inc. v. AcademyOne, Inc., 597 Fed.Appx. 116, 122 (3d Cir. 2015) (“application of the first-filed rule at the insistence of the party filing essentially identical actions in multiple jurisdictions, like CS did here, may foster forum or judge shopping.”).

 

The Court further believes that the allegations underlying the parties’ claims and defenses (including the claim that the default judgment was fraudulently procured) have no real bearing on the above application of “first filed” rule after considering the totality of the circumstances. In addition, as the Court has already noted, this case is simply not ripe for litigation as out-of-state defendant Mickens Transportation—Cypress’ insured—does not yet have counsel. Again, its principal is not permitted to represent the company pro se as is suggested by the stipulation that was filed. See, Goldstein, 2017 WL 462525, at *3.

 

While Cypress suggests that a stay of this action would be a more appropriate application of the “first filed” rule, this Court disagrees. It appears that staying this action would serve no meaningful purpose given the identical nature of the claims brought by Cypress in the two federal fora and the only reason to stay this case on the Court’s docket would be to preserve Cypress’ ability “to possibly achieve a proverbial second bite at the apple while arguing its case to two different federal judges. But, ‘[n]o party has a vested right to have his cause tried by one judge rather than by another of equal jurisdiction.’ ” In re Pittsburgh Corning Corp., No. 03-35592 JKF, 2012 WL 2368388, at *4 (W.D. Pa. June 21, 2012) (quoting Crosley Corp. v. Hazeltine Corp., 122 F.2d 925, 930 (3d Cir. 1941)). All told, it is this Court’s opinion that it is in the interests of judicial economy for this litigation to proceed before a single District Judge in the appropriate forum. See U.S. ex rel. Frank M. Sheesley Co. v. St. Paul Fire & Marine Ins. Co., 239 F.R.D. 404, 415 (W.D. Pa. 2006) (“Judicial economy is not a principle that operates exclusively to the courts’ advantage. Litigants also benefit when the consolidation of related actions results in the most expedited determination of debts and liabilities.”). Accordingly, the Court will heed the advice of the Court of Appeals and transfer the matter to the U.S. District Court for the District of South Carolina. See Chavez, 836 F.3d at 220.

 

*4 Alternatively, the Court would exercise its discretion to transfer the matter under the discretionary transfer statute, 28 U.S.C. § 1404(a)2 after a careful weighing of the relevant private and public factors set forth in Jumara v. State Farm Ins. Co., 55 F.3d 873, 883 (3d Cir. 1995). As it has done on several occasions, the Court has weighed each of those factors3 and finds that a transfer to South Carolina is a fair and appropriate exercise of its discretion. See, e.g., Washington Frontier League Baseball, LLC v. Frontier Professional Baseball, Inc., Civ. A. No. 16-1556, 2017 WL 565001 (W.D. Pa. Feb. 13, 2017).

 

The most relevant of the private Jumara factors supporting the transfer are that the declaratory judgment claims arose from actions (and/or inactions) that took place entirely within the state of South Carolina, by Barren’s counsel who practices in that state; the underlying tort involved in the personal injury case occurred within South Carolina; and, the federal court in South Carolina is clearly convenient to the parties and witnesses, all of whom are present there and litigating related disputes in the federal and state courts. Cf. Turner Construction Co. v. Independence Excavating, Inc., Civ. A. No. 16-337, 2016 WL 1408120, at *1 (W.D. Pa. Apr. 11, 2016) (active litigation in other district and area where claims arose weigh in favor of transfer). Cypress’ forum preference is given little weight because it is an out-of-state company that appears to have no business connection to the Commonwealth or this District, and the only proffered reason for its decision to file the case here is that Barren lives in Allegheny County, a fact that is tangential to the litigation, at best. See Ward, 80 F. Supp. 3d at 564 (plaintiff’s choice of forum given less weight when it is outside of the plaintiff’s state of residence and unrelated to the claims at issue). The other factors are neutral but the overall weighing of the private factors strongly favors a transfer to South Carolina. See Jumara, 55 F.3d at 883.

 

Many of the public Jumara factors likewise support the requested transfer. See Jumara, 55 F.3d at 879. To this end, the case involves a challenge to a state court default judgment and an alleged fraud committed on the state court in South Carolina, making it a local controversy that should be decided by the courts in that area and not one several states away as would be the case if this Court presided over the matter in Pittsburgh. Id. Of course, the potentially applicable South Carolina laws at issue are certainly familiar to the federal courts in South Carolina. Id. It would also be less costly to the parties to proceed in the South Carolina litigation, as both Barren and Cypress have had to engage separate counsel to represent their respective interests in this Court and Mickens Transportation would also be required to do so if this matter proceeded here. See Civ. A. No. 17-246, Docket Report.

 

*5 Finally, as this Court has stated previously, this District is presently operating with four empty District Judge seats, out of a total of ten seats, with three of those seats being vacant for a number of years. See Sloane v. Gulf Interstate Field Services, Inc., Civ. A. No. 15-1208, 2016 WL 4010965, at *8 (W.D. Pa. Jul. 27, 2016) (noting in July of 2016 that three seats had been vacant for three years). It is unknown when the vacancies may be filled and it is likely that there will be another vacancy on this Court in the near future. A review of the statistics produced by the Administrative Office of the United States Courts indicates that there are two empty District Judge seats in the District of South Carolina out of a total of ten seats. See Federal Court Management Statistics, September 2016, available at: http://www.uscourts.gov/statistics-reports/federal-court-management-statistics-september-2016 (last visited 4/28/17). Thus, because the judicial seats in this District are staffed at a rate of sixty percent (60%) and the District of South Carolina is at eighty percent (80%) this factor similarly weighs in favor of the transfer, although it is not dispositive. Cf. Washington, 2017 WL 565001, at *3. The remaining public factors are neutral and require no further evaluation. However, like the private factors, this Court’s weighing of all of the facts and circumstances under the public Jumara factors also supports the transfer. See Jumara, 55 F.3d at 879.

 

1. CONCLUSION

Based on the foregoing, Barren’s Motion [6] is granted to the extent that a transfer will be ordered. An appropriate Order transferring this matter to the U.S. District Court for the District of South Carolina follows.

 

All Citations

Slip Copy, 2017 WL 1541892

 

 

Footnotes

1

The Court notes that a stipulation for extension of time to answer was filed on April 21, 2017 and is purportedly signed by James Mickens, pro se, on behalf of Mickens Transportation Company. (Docket No. 11). This entry has no legal effect because it is well settled that a corporation must appear in federal court via counsel of record and a non-attorney owner cannot represent a corporation pro se. See, e.g., Goldstein v. Roxborough Real Estate LLC, No. 15-3680, 2017 WL 462525, at *3 (3d Cir. Feb. 3, 2017) (“Corporations, including limited partnerships, may appear in federal court only through counsel.”) (citations omitted); 28 U.S.C. § 1654.

2

Section 1404(a) provides that “[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.” 28 U.S.C. § 1404(a).

3

The relevant private interests include: (1) each party’s forum preference; (2) where the claims arose; (3) the convenience of the parties; (4) the convenience of the witnesses; and (5) the location of the books and records. Jumara, 55 F.3d at 879. The cited public interests include: (1) the enforceability of the judgment; (2) practical considerations of expediting trial and reducing costs; (3) administrative difficulties in the two fora due to court congestion; (4) the local interest in deciding local controversies; (5) public policies of the fora; and (6) the familiarity of the trial judge with the applicable state law. Id.

United States District Court,

N.D. Ohio, Western Division.

Anthony HERNDON, Plaintiff

v.

Carlos V. TORRES, et al., Defendants

Case No. 3:15CV561

|

Filed: 04/21/2017

Attorneys and Law Firms

Zachary J. Murry, Barkan & Robon, Maumee, OH, for Plaintiff.

Paul T. Belazis, Malone, Ault & Farell, John C. Barron, Nicholas T. Stack, Shumaker, Loop & Kendrick, Toledo, OH, for Defendants.

ORDER

James G. Carr, Sr. U.S. District Judge

*1 This personal-injury case arises out of a truck driver’s vicious attack on another truck driver at a rest stop.

 

One evening in June, 2014, Plaintiff Anthony Herndon was driving his semi-trailer truck through Perrysburg, Ohio. As Herndon, preparing to turn into a truck stop, pulled his rig into a left-turn lane, the defendant, Carlos Torres, suddenly merged his truck into the turn lane and cut-off Herndon.

 

After both men parked their trucks near each other, Herndon walked by Torres and urged him to be more careful. Cursing at Herndon, Torres retrieved a long metal bar known as a “cheater bar” and beat Herndon with it repeatedly, breaking Herndon’s leg and inflicting permanent injuries.

 

Herndon filed this suit against Torres and defendant Avrora Express, Inc., the trucking company for whom Torres worked at the time of the attack. He brings claims of negligence, wanton/reckless misconduct, assault, battery, and negligent and intentional infliction of emotional distress against Torres. Herndon also alleges that Avrora is vicariously liable for Torres’s attack on him, and that the company was negligent in hiring, retaining, training, and supervising Torres.

 

Jurisdiction is proper under 28 U.S.C. § 1332(a)(1). (Doc. 1 at ¶¶ 1–3).

 

Pending is Avrora’s motion for summary judgment. (Doc. 28). For the following reasons, I grant the motion.

 

Background

Avrora is a Massachusetts corporation in the business of transporting and delivering automobiles from the east coast of the United States to the west coast. It operates a fleet of eight trucks and engages as many as ten “independent contractors” to make the coast-to-coast trips. (Doc. 29 at 3).

 

Ilya Khotsin and Dmitriy Salagornik are the owners of Avrora.

 

Avrora evolved out a now-defunct transportation company called Vitaliy’s Auto Sales, Inc., that Salagornik had owned with his father. When Vitaliy’s closed, Salagornik sold or leased the company’s trucks to Avrora.

 

1. Avrora and Torres’s Relationship

In 2012, Torres applied to work for Vitaliy’s.

 

Torres held a Class A driver’s license that allowed him to operate tractor trailers. (Id.). Torres had also held several jobs that required him to undergo either a criminal background check, a drug test, or both. He testified that no prospective employer had ever denied him a job based on the results of a criminal background check or drug test.

 

When he applied to Vitaliy’s, Torres submitted to a drug test and represented that he did not have a felony conviction. Vitaliy’s then used a third-party human-resources company to inquire into Torres’ motor-vehicle record and enroll him in a random drug-screening program. This process “showed no disqualifying information and Salagornik engaged Torres to drive for Vitaliy’s.” (Doc. 29 at 4).

 

When Vitaliy’s closed, Avrora, at Salagornik’s urging, hired Torres. Rather than conducting a new employment screen and background check, Avrora simply utilized the materials that Vitaliy’s had generated while vetting Torres’s application.

 

1. Nature of Torres’s Work

*2 Between late 2012 and June, 2014, Torres “intermittent[ly]” hauled loads for Avrora. (Doc. 24–4 at 46). As Khotsin described it, Torres was:

free to go on to the trip or not to go to the trip … There was no commitment. There was nothing like he 8:00 a.m. he has to show up and do some work, check in or check out, nothing like that.

We call him. We have a load, we have a truck. We say, you want to go to this trip on this particular date? He says, yes or no.

(Id.).

 

When he accepted a job, Torres drove a truck that Avrora owned, though he used his own cell phone to communicate with Avrora and customers, chose his own clothes, and kept his own logbook. Even while occasionally hauling for Avrora, Torres remained free to take jobs at other companies.

 

If Torres accepted a job, Avrora had no ability to control the number of hours he worked. It was, instead, federal law that set the maximum number of hours Torres could drive in a given week. (Doc. 29 at 8). Khotsin also testified that, in 2013—the one full year in which Torres hauled for Avrora—Torres worked only half the hours that a full-time trucker would have worked. (Doc. 26–4 at 46–47).

 

Oftentimes during his trips, Avrora would contact Torres and ask him to make an additional pick-up. However, Torres had discretion to accept or decline the additional work as he saw fit. And in hauling cars to the west coast, Torres had discretion to select his own routes: while Avrora might suggest routes for him to take, the final decision always rested with Torres.

 

For each period that Torres hauled for Avrora, the company paid him in bi-weekly installments. If Torres damaged the truck or its cargo, Avrora could deduct the damage from his pay. Avrora also covered the costs of fuel, tolls, and traffic citations (if any) that Torres incurred during coast-to-coast hauls.

 

It is undisputed that Avrora annually provided Torres with a 1099 supplemental income form, an IRS form that independent contractors, rather than employees, use.

 

During Torres’s tenure with Avrora, neither Khotsin nor the company “receive [d] any reports related to any threatening or violent behavior exhibited by Torres during his engagement with Avrora” or “outside of his engagement with Avrora.” (Doc. 27–6 at ¶¶ 8, 9).

 

1. The Attack

In June, 2014, Avrora engaged Torres to haul a shipment of vehicles from Massachusetts to California. (Doc. 29 at 5).

 

It was during this trip that Torres encountered Herndon and, as described above, beat him with the cheater bar. The attack left Herndon with a fractured femur and a great deal of chronic pain. Operations to repair the fracture resulted in one of Herndon’s legs being longer than the other.

 

Authorities arrested Torres, and he later pled guilty to attempted felonious assault and served a year in prison.

 

Standard of Review

Summary judgment is appropriate under Fed. R. Civ. P. 56 where the opposing party fails to show the existence of an essential element for which that party bears the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

 

The movant must initially show the absence of a genuine issue of material fact. Id. at 323, 106 S.Ct. 2548. Once the movant meets that burden, the “burden shifts to the nonmoving party [to] set forth specific facts showing there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Rule 56 “requires the nonmoving party to go beyond the [unverified] pleadings” and submit admissible evidence supporting its position. Celotex, supra, 477 U.S. at 324, 106 S.Ct. 2548.

 

*3 I accept the non-movant’s evidence as true and construe all evidence in its favor. Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 456, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992).

 

Discussion

Avrora seeks summary judgment on three grounds.

 

Regarding Herndon’s vicarious-liability claim, Avrora contends that, as a matter of Ohio law, it cannot be liable for Torres’s intentional torts because Torres was an independent contractor, not an employee. In the alternative, Avrora argues that even if Torres were its employee, it is still not liable because Torres was not acting in the scope of his employment when he attacked Herndon.

 

As to Herndon’s negligence claims, Avrora maintains that the undisputed facts show that it was neither Torres’s employer nor negligent in hiring, training, retaining or supervising Torres.

 

1. Choice of Law

At the outset, the parties dispute whether Ohio or Massachusetts law applies.1

 

“In deciding conflict of law questions in diversity of citizenship cases, a federal court generally follows the choice of law rules of the state in which it sits.” In re Commercial Money Ctr., Inc., Equip. Litig., 603 F.Supp.2d 1095, 1099 (N.D. Ohio 2009).

 

“Under Ohio law, a presumption is created that the law of the place of the injury controls.” Friedman v. Intervet Inc., 2010 WL 2817257, *8 (N.D. Ohio). This presumption controls “unless another jurisdiction has a more significant relationship to the lawsuit.” Id.

 

In deciding that question, Ohio courts consider: “(1) the place of the injury; (2) the place where the conduct causing the injury occurred; (3) the domicile, residence, nationality, place of incorporation, and place of business of the parties; (4) the place where the relationship between the parties, if any, is located; and (5) any factors under Section 6 [of the Restatement of the Law 2d, Conflict of Laws] which the court may deem relevant to the litigation.” Morgan v. Biro Mfg. Co., 15 Ohio St.3d 339, 342, 474 N.E.2d 286 (1989).

 

Section 6, in turn, allows a court to consider: “(a) the needs of the interstate and international systems; (b) the relevant policies of the forum; (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue; (d) the protection of justified expectations; (e) the basic policies underlying the particular field of law; (f) certainty, predictability and uniformity of result; and (g) ease in the determination and application of law to be applied.” 1 Restatement of the Law 2d, Conflict of Laws § 6(2)(a)–(g).

 

1. Place of Injury

*4 It is undisputed that the place of the injury is Ohio. I therefore start with the presumption that Ohio law controls this dispute. Friedman, supra, 2010 WL 2817257, at *8; see also Walker v. Nationwide Mut. Ins. Co., 2015-Ohio-5371, ¶ 24, 2015 WL 9393878 (Ohio App.).

 

2. Conduct Causing the Injury

Likewise, the conduct causing Herndon’s injuries—to wit, Torres’s beating Herndon with the cheater bar—occurred in Ohio.

 

Herndon suggests that the relevant “conduct” was Avrora’s decision to hire or engage Torres. (Doc. 32 at 16) (“Mr. Herndon’s injury was merely the ultimate manifestation and/or result of Defendant Avrora’s negligent conduct.”). But Herndon cites no case law to support that understanding, and the cases Avrora cites refute it. Laux v. Juillerat, 680 F.Supp. 1131, 1136 (S.D. Ohio 1987); Grieser v. Montgomery, 2012 WL 1906379, *2 (N.D. Ohio).

 

Accordingly, Ohio—as “the state in which both the conduct and the injury occur[red]”—has “the dominant interest in regulating that conduct, determining whether it was tortious in character, and determining whether the interest is entitled to legal protection.” Kurent v. Farmers Ins. of Columbus, 62 Ohio St.3d 242, 246, 581 N.E.2d 533 (1991). “[S]ubject only to rare exceptions, the local law of the state where the conduct and injury occurred will be applied [.]” 1 Restatement of the Law 2d, Conflict of Laws § 145.

 

3. Domiciles, State of Incorporation, and Prior Relationships

At the time of the attack, Herndon was an Alabama citizen, Torres was a Massachusetts citizen, and Avrora was a Massachusetts citizen. (Doc. 1 at ¶¶ 1–3).

 

In this kind of case, where the parties do not have their domiciles in the state where the injury and the conduct causing the injury occurred, “[t]he third factor points in no single direction.” Grieser, supra, 2012 WL 1906379, at *2. And where, as here, the parties do not have any prior relationship or past dealings with one another, “it will be rare that § 145’ s domicile factor, alone, will overcome the presumption that the law of the place of injury controls.” Grubb v. Day to Day Logistics, Inc., 2015 WL 4068742, *9 (S.D. Ohio).

 

4. Locus of the Parties’ Relationship

It is undisputed that Ohio is the only place where the paths of all three parties crossed.

 

5. Section 6 Factors

Herndon does not argue that any of the Section 6 factors supports applying Massachusetts rather than Ohio law, nor do I find any of them particularly relevant.

 

* * *

Because the injury and the conduct that caused it occurred in Ohio, and because Ohio is the only state where all parties’ paths crossed, I conclude that Ohio law controls this dispute.2

 

1. Respondeat Superior Claim
2. Independent Contractor

Under Ohio law, a hiring party is not vicariously liable for the torts of an independent contractor. Laderer v. St. Rita’s Med. Ctr., 122 Ohio App.3d 587, 594, 702 N.E.2d 476 (1997).

 

“The chief test in determining whether one is an employee or an independent contractor is the right to control the manner or means of performing the work.” Ponyicky v. City of Brunswick, 2014-Ohio-3540, ¶ 11, 2014 WL 4069089 (Ohio App.).

 

*5 “The determination of who has the right to control must be made by examining the individual facts of each case. The factors to be considered include, but are certainly not limited to, such indicia as who controls the details and quality of the work; who controls the hours worked; who selects the materials, tools and personnel used; who selects the routes traveled; the length of employment; the type of business; the method of payment; and any pertinent agreements or contracts.” Id.

 

“If such right is in the employer, the relationship is that of employer and employee; but if the manner or means of performing the work is left to one responsible to the employer for the result alone, an independent contractor relationship is created.” Id.

 

Given the undisputed evidence, a jury could only find that Torres was an independent contractor.

 

First, it is undisputed that Torres alone controlled which jobs he took and the hours he worked. As Salagornik testified, whenever Avrora sought out Torres to make a particular haul, Torres had discretion to accept or reject the offer. This discretion spilled over into mid-trip decision-making: if Avrora contacted Torres during a trip and asked him to pick-up another load, Torres could refuse to do so.

 

When Torres was hauling, moreover, Avrora did not set his hours; rather, federal regulations fixed that number. And if Torres needed additional time to complete a haul, he was free to tell Avrora. In addition, Torres’s hours in 2013 were roughly half that a full-time trucker would likely work.

 

Second, Torres selected the routes he took. Bookwalter v. Prescott, 168 Ohio App.3d 262, 269, 859 N.E.2d 978 (2006) (fact that trucker “was not required to take any particular route” while hauling cargo was evidence of his independent-contractor status).

 

Third, Torres worked on a haul-by-haul basis, and Avrora correspondingly paid him by the job. Harmon v. Schnurmacher, 84 Ohio App.3d 207, 213, 616 N.E.2d 591 (1992) (recognizing that an independent contractor “is generally hired to complete a single job only and does not have a continuing, full-time relationship with a single client”); Freeman v. Ideal Merch., Inc., 2008-Ohio-1721, ¶ 18, 2008 WL 963063 (Ohio App.) (fact that “the men were paid by the job and not the time” supported the trial court’s finding of an independent-contractor relationship).

 

Fourth, the parties’ use of a 1099 form “suggests that the parties were not acting in an employer/employee relationship but rather in that of an independent contractor relationship.” Northeast Ohio Coll. of Massotherapy v. Burek, 144 Ohio App.3d 196, 203–04, 759 N.E.2d 869 (2001).

 

In contrast, Herndon emphasizes that Avrora owned the truck Torres used to haul cargo, and that it identified where Torres was to make pick-ups and deliveries. (Doc. 32 at 17–18). Herndon also notes that Avrora expected Torres to be the “face of the company,” and that it sought to control his behavior by prohibiting him from drinking alcohol while on a trip.

 

But these facts do nothing to show that Avrora controlled the manner and the means of Torres’s work.

 

Although Avrora owned a piece of equipment that Torres needed to accomplish the work, once Torres accepted a job and set out on a haul, he, rather than Avrora, had essentially unfettered control over how he used that equipment (what routes he took, what hours he worked, whether he accepted or declined additional cargo pick-ups along the way) to accomplish the haul.

 

Likewise, in making Torres and its other drivers the face of the company, Avrora was simply identifying an objective for Torres to accomplish, and it was up to Torres to figure out how to interact properly with customers. Ponyicky, supra, 2014-Ohio-3540, at ¶ 11, 2014 WL 4069089 (“if the manner or means of performing the work is left to one responsible to the employer for the result alone, an independent contractor relationship is created”).

 

*6 And while the fact that Avrora forbade Torres to drink alcohol while on a haul does suggest that Avrora exercised some control over the manner in which Torres performed the work, such evidence is not a sufficient basis for a jury to find that Torres was an employee of Avrora.

 

Because the undisputed facts would permit a jury to find only that Torres was an independent contractor, Avrora is not liable for Torres’s attack on Herndon. Accordingly, Avrora is entitled to summary judgment Herndon’s vicarious-liability claim.

 

2. Scope of Employment

Even assuming, arguendo, that Torres was Avrora’s employee, Avrora still would not be liable under a respondeat-superior theory of liability.

 

Under Ohio law, “[a]n employer can be held liable for an employee’s intentional, malicious acts only where those acts are performed in the scope of the employee’s employment.” Leach v. Heyman, 233 F.Supp.2d 906, 912 (N.D. Ohio 2002). “As a general rule, however, an intentional and wilful attack committed by an agent or employee, to vent his own spleen or malevolence against the injured person, is a clear departure from his employment and his principal or employer is not responsible therefore.” Id.

 

Here, no reasonable jury could find that Torres was acting within the scope of his employment at the time of the attack. On the contrary, and as a matter of law, Torres “clear[ly] depart[ed]” from any employment relationship he might have had with Avrora when he began beating Herndon. Id. For this reason as well, Avrora is entitled to summary judgment on the vicarious-liability claim.

 

1. Negligence Claims

To prevail on his claims for negligent hiring, retention, training, and supervision, Herndon must establish: 1) the existence of an employment relationship; 2) the employee’s incompetence; 3) the employer’s actual or constructive knowledge of that incompetence; 4) the employee’s act or omission that caused the plaintiff’s injuries; and 5) the employer’s negligence in hiring, retaining, training, or supervising the employee proximately caused the plaintiff’s injuries. Sygula v. Regency Hosp. of Cleveland East, 64 N.E.3d 458, 471 (Ohio App. 2016).3

 

Because an employment relationship is an element of Herndon’s negligence claims, my determination, supra, that a reasonable jury could find only that Torres was an independent contractor is enough to grant summary judgment to Avrora on the negligence claims.

 

But even assuming that Avrora were Torres’s employer, Herndon has not shown a genuine factual dispute on at least two elements of his negligence claims.

 

1. Knowledge

It is undisputed that Avrora did not have actual knowledge of Torres’s alleged violent or criminal propensities.

 

Khotsin so testified (Doc. 27 at ¶¶ 8–10), and Torres, when he applied for a position with Avrora’s predecessor-in-interest, represented that he had no felony convictions and had never lost a job due to a failed background check. Torres did not display any violent or criminal propensity during the roughly two years he hauled for Avrora (Doc. 27 at ¶¶ 6–10), and both Khotsin and Salagornik testified that Torres was a reliable driver.

 

*7 Furthermore, there is no evidence to support a jury finding that Avrora had constructive knowledge of Torres’s alleged criminal or violent propensities.

 

Constructive knowledge is “[k]nowledge that one using reasonable care or diligence should have, and therefore that is attributed by law to a given person.” Hartings v. Xu, 2014-Ohio-1794, ¶ 74, 2014 WL 1692792 (Ohio App.).

 

Herndon argues at length that, had Avrora simply conducted a criminal background check on Torres, it would have discovered that: 1) Torres allegedly had four prior convictions, including one for domestic violence; and 2) police in Holyoke, Massachusetts had arrested Torres twice in 1988 and once in 2000. (Doc. 32 at 10–11, 22–24).

 

This argument fails for two reasons.

 

First, neither federal regulations nor Ohio law required Avrora to run a criminal background check on Torres. See 49 C.F.R. § 391.23 (specifying the “investigations and inquiries with respect to each driver it employs” that motor carries must undertake, none of which concerns drivers’ criminal backgrounds); Rozzi v. Star Personnel Servs., Inc., 2007-Ohio-2555, ¶ 11, 2007 WL 1531427 (Ohio App.) (collecting cases supporting the proposition that “Ohio law holds that no such duty [to run a criminal background check on prospective employees] exists”); see also Connes v. Molalla Transport Sys., Inc., 831 P.2d 1316, 1323 (Colo. 1992) (employer had no duty to investigate driver’s non-vehicular criminal background “in order to protect a member of the public … from a sexual assault committed by [the driver] in the course of making a long-haul trip over the interstate highway system”).

 

Accordingly, the law does not impute to Avrora knowledge of any information that the company would have discovered had it undertaken the background check.

 

Second, it is undisputed that the District Court in Holyoke, Massachusetts, and the Hampden County, Massachusetts, Superior Court have no record of Torres incurring a criminal conviction in or after 1988, when he turned eighteen. (Doc. 27–3) (signed and sealed certification from the Deputy Clerk of the Holyoke District Court); (Doc. 27–4) (signed and sealed certification from the Deputy Clerk of the Hampden County Superior Court).4

 

Herndon nevertheless maintains that Torres does, in fact, have multiple criminal convictions.

 

He bases this argument on the “expert declaration” of Jill Miller, an Ohio private investigator. According to Miller, she ran a standard pre-employment background check on Torres and concluded that “prior to 2014, Defendant Torres had been convicted of the crimes of drug possession (2008 and 2009), trespass (2008), domestic violence (2008), and had been subject to a protective order (2007).” (Doc. 23–1 at ¶ 10a).

 

But Miller does not point to any court records or certified copies of conviction to support that opinion. Nor does she explain how the “criminal records” she attached to her declaration establish that Torres has four criminal convictions.

 

*8 In the absence of such a foundation and explanation, Miller’s “expert declaration” simply embodies her opinion as to the sum and substance of Torres’s criminal record, which is insufficient to show a genuine dispute of material fact re. Avrora’s constructive knowledge of Torres’s criminal or violent propensities.

 

In any event, I have examined the records on which Miller relied, and they do not support her opinion. For example, the background check that Miller ran turned up the “criminal record” associated with Torres’s assault on Herndon. Notably, that record specifies a “conviction date” of September 29, 2014. (Doc. 23–1 at 11). But the “criminal records” associated with Torres’s alleged convictions for drug possession, trespass, and domestic violence contain no reference to a “conviction date”; they simply indicate an “offense date.” (Doc. 23–1 at 9–12).

 

For that reason as well, Miller’s unexplained and unsubstantiated opinion does not show that Avrora had constructive knowledge of Torres’s alleged criminal or violent propensities.

 

2. Avrora’s Negligence
3. Foreseeability

Given that Avrora neither knew nor should have known about Torres’s alleged criminal or violent propensity, I also hold that Avrora did not have a duty to protect Herndon from Torres.

 

As I have previously explained:

[A] plaintiff must prove that the employee’s acts were “reasonably foreseeable” by the employer. An act is reasonably foreseeable only if the employer knew or should have known of the employee’s propensity to engage in similar criminal, tortious, or dangerous conduct. To thus be liable for an employee’s incompetence, the employer must be able to anticipate the employee’s misconduct and thereafter unreasonably take the risk to either hire him or continue his employment.

Johnson v. J.B. Hunt Transp., Inc., 2009 WL 4282941, *6 (N.D. Ohio).

 

At bottom, Herndon’s argument is that Avrora ought to have foreseen the attack because the company ought to have conducted a criminal background check. But that argument is contrary to Ohio law, which did not require Avrora to do so. I therefore conclude there is no factual basis for a jury to find that Torres’s attack was foreseeable to Avrora.

 

1. Causation

“When a third person’s criminal act intervenes between a defendant’s conduct and a plaintiff’s injuries, the defendant’s negligence is the proximate cause of the plaintiff’s injuries only where the defendant could have reasonably foreseen the intervening act.” Evans v. Thrasher, 2013-Ohio-4776, ¶ 22, 2013 WL 5864592 (Ohio App.).

 

For the reasons already given, there is no evidence suggesting that Avrora should have foreseen Torres’s attack on Herndon. Accordingly, there is likewise no basis on which a jury could find that any negligence on Avrora’s part in hiring, retaining, supervising, or training Torres proximately caused Herndon’s injuries.

 

1. Punitive Damages

Finally, because Avrora is entitled to judgment as a matter of law on all of Herndon’s causes of action against it, Herndon’s request for punitive damages from Aurora also fails.

 

Conclusion

It is, therefore,

 

ORDERED THAT defendant Avrora Express’s motion for summary judgment (Doc. 28) be, and the same hereby is, granted.

 

So ordered.

 

All Citations

— F.Supp.3d —-, 2017 WL 1422847

 

 

Footnotes

1

Based on the parties’ briefs, it appears that the general contours of Ohio and Massachusetts law are more or less the same when it comes to identifying: 1) whether one is an independent contractor or an employee; and 2) the elements of a negligent hiring/retention/training/supervision claim. The law in the two states differs, however, when it comes to an employer’s liability for an employee’s intentional torts. Under Ohio law, an employer can almost never be liable for the intentional torts of its employee. But under Massachusetts law, the employer may be liable if “the employee’s assault was in response to the plaintiff’s conduct which was presently interfering with the employee’s ability to perform his duties successfully.” Miller v. Federated Dep’t Stores, Inc., 364 Mass. 340, 304 N.E.2d 573, 580 (1973). Because Herndon argues Avrora is liable under that provision of Massachusetts law, it is appropriate to resolve the choice-of-law issue.

2

In so holding, I reject Herndon’s argument that Laux, supra, 680 F.Supp. 1131, warrants a different result. Most importantly, the court in Laux did not mention, let alone apply, the presumption that Ohio law controls when the injury and conduct causing the injury occurs in Ohio.

3

Herndon has brought four separate negligence claims—for hiring, retaining, training, and supervising Torres—but each claim has essentially the same elements, the only difference being the whether it was Avrora’s negligent hiring, negligent retention, negligent training, or negligent supervision that proximately caused Herndon’s injuries. I therefore discuss the claims together.

4

Herndon tries to discount these certifications by observing that, in 2012—when Avrora engaged Torres—the age of majority in Massachusetts was seventeen. (Doc. 32 at 22 n.5). Because not even Herndon suggests that Torres had a criminal conviction in 1987, whether the certifications at issue went back an additional year is immaterial.