United States District Court, N.D. Alabama, Eastern Division.

Zachary SMITH, Plaintiff,

v.

Ramon GONZALEZ and Kars 2 Go Transport Group, Defendants.

Case No.: 1:17-CV-0098-VEH

|

Signed 01/04/2018

Attorneys and Law Firms

Robert L. Gorham, Melissa C. Taylor, Gorham & Associates LLC, Birmingham, AL, for Plaintiff.

Ike Gulas, The Ike Gulas Law Firm, Jonathan Michael Hooks, James B. Carlson, Christian & Small LLP, Birmingham, AL, for Defendants.

 

 

MEMORANDUM OPINION AND ORDER

VIRGINIA EMERSON HOPKINS, United States District Judge

 

1. INTRODUCTION AND PROCEDURAL HISTORY

*1 On June 1, 2015, the Plaintiff, Zachary Smith, was driving a tractor trailer owned by PGT Trucking Inc. (“PGT”), when he collided with a car hauler owned by Kars 2 Go Transport Group (“Kars 2 Go”). Although Smith was authorized by PGT to drive the truck, and was driving it on behalf of PGT, he was not an employee of PGT at the time. Instead, according to Smith, “[h]e is employed by a different entity and that entity is on a trip lease with PGT.” (Doc. 3 at 2). Ramon Gonzalez, an employee of Kars 2 Go, was driving the car hauler at the time of the accident.

 

On November 3, 2016, Gonzalez filed suit against Smith and PGT in the Circuit Court of Jefferson County, Alabama. (Doc. 7-1 at 2-6 (complaint in Ramon Gonzalez v. Zachery Lee Smith and PGT Trucking, Inc., 01-CV-2016-904091)). In that action, Gonzalez alleged that the accident was caused by the direct1 negligence (Count One) and/or direct wantonness (Count Two) of Smith and PGT. (Doc. 7-1 at 2-6).

 

On May 31, 2017, PGT filed an answer to Gonzalez’s claims. (Doc. 25-2). Consolidated with that answer was a counterclaim alleged against two parties: Gonzalez, the original plaintiff in that case; and Kars 2 Go, which was added to the case as a counterclaim defendant. (Doc. 25-2). In the counterclaim, PGT contends that the accident was a result of the negligence (Count One) and wantonness (Count Two) of Gonzalez. The counterclaim alleges that Kars 2 Go is responsible for Gonzalez’s actions under the doctrine of respondeat superior.

 

On October 9, 2017, Kars 2 Go filed an answer to the counterclaim, which it consolidated with a counterclaim of its own against Smith and PGT. (Doc. 25-3). The Kars 2 Go counterclaim alleges that the accident was caused by the negligence (Count One) and wantonness (Count Two) of Smith, and that PGT is responsible for Smith’s actions under the doctrine of respondeat superior. The Kars 2 Go counterclaim also alleges that PGT is liable for the negligent and wanton entrustment of a vehicle to Smith (Count Three), and the negligent and wanton hiring, training, supervision, and retention of Smith (Count Four).

 

Smith filed no claims in the state court case. Instead, on January 18, 2017, Smith filed the instant case against Gonzalez and Kars 2 Go. (Doc. 1). Smith alleges that the accident was a result of the negligence (Count One) and wantonness (Count Two) of Gonzalez, and that Kars 2 Go is responsible for Gonzalez’s actions under the doctrine of respondeat superior. (Doc. 1). Smith also alleges that Kars 2 Go is liable for the negligent and wanton entrustment of its vehicle to Gonzalez. (Count Three).

 

On February 8, 2017, the Defendants in the instant case moved to dismiss this case arguing that, under the Alabama Rules of Civil Procedure, this action is a compulsory counterclaim to the state court case. (Doc. 7). This Court denied the motion writing:

*2 Rule 13(a)(3) of the Alabama Rules of Civil Procedure carves out an exception [to the compulsory counterclaim rule] for when “the opposing party’s claim is for damage covered by a liability insurance policy under which the insurer has the right or the obligation to conduct the defense.” ALA. R. CIV. P. 13(a)(3). That is exactly the case here.

(Doc. 12 at 2).

 

This case now comes before the Court on the Defendants’ Motion To Dismiss or to Stay (the “Motion”) based on the “abstention doctrine” set out in Colorado River Water Conservation District v. United States, 424 U.S. 800, 817 (1976). (Doc. 25). For the reasons stated herein, the Motion will be GRANTED, and this case will be STAYED.

 

 

1. ANALYSIS

Very recently, a panel of the Eleventh Circuit Court of Appeals wrote:

The Colorado River abstention doctrine “rest[s] on considerations of wise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation.” Id. (alteration adopted) (internal quotation marks omitted). We emphasize, however, that the doctrine presents an “extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it.” Id. at 813, 96 S.Ct. 1236. “[W]hile abstention as a general matter is rare, Colorado River abstention is particularly rare.” Jackson-Platts v. Gen. Elec. Capital Corp., 727 F.3d 1127, 1140 (11th Cir. 2013). “Only the clearest of justifications merits abstention.” Id. (internal quotation marks omitted).

Under Colorado River, federal courts may “abstain from a case if (1) a parallel lawsuit was proceeding in state court, and (2) judicial-administration reasons so demanded abstention.” Id. A “parallel” suit is “one involving substantially the same parties and substantially the same issues.” (internal quotation marks omitted). Where there are parallel federal and state proceedings, federal district courts must weigh a number of factors in analyzing whether abstention is appropriate:

(1) whether one of the courts has assumed jurisdiction over property, (2) the inconvenience of the federal forum, (3) the potential for piecemeal litigation, (4) the order in which the fora obtained jurisdiction, (5) whether state or federal law will be applied, and (6) the adequacy of the state court to protect the parties’ rights.

Ambrosia Coal & Constr. Co. v. Pages Morales, 368 F.3d 1320, 1331 (11th Cir. 2004). This is a flexible inquiry in which no single factor is dispositive, but courts are required to weigh the factors with a heavy bias in favor of the exercise of federal jurisdiction. Id. at 1332.

Barone v. Wells Fargo Bank, N.A., No. 16-16079, 2017 WL 4179820, at *5–6 (11th Cir. Sept. 21, 2017) (footnotes omitted).

 

 

1. There Is Parallel Litigation

The parties agree that the federal and state proceedings are parallel. (See doc. 25 at 3-4; doc. 31 at 4-5). The Court concurs. Accordingly, the Court must only determine whether the Ambrosia Coal factors dictate abstention.

 

 

1. Abstention Is Appropriate in This Case
2. Whether One of the Courts Has Assumed Jurisdiction over Property

The first factor favors abstention “only where there is a proceeding in rem.” Barone, 2017 WL 4179820, at *5 (quoting Jackson-Platts, 727 F.3d at 1141). The parties agree that this case is not an action in rem, but disagree as to whether this factor is neutral (see doc. 25 at 5; doc. 32 at 1-2), or “favors the Court retaining jurisdiction” (see doc. 31 at 5). There is some validity to each position. In the past, the Eleventh Circuit has determined that factors which have no impact on the analysis are “neutral.” See Jackson-Platts, 727 F.3d at 1143 (finding that because both the state and federal forums were equally adequate to protect the parties’ rights, the sixth factor was “neutral”); Ambrosia Coal, 368 F.3d at 1334 (same). However, as noted by the Eleventh Circuit in Barone, “courts are required to weigh the factors with a heavy bias in favor of the exercise of federal jurisdiction.” Barone, 2017 WL 4179820, at *5 (citing Ambrosia Coal, 368 F.3d at 1332) (emphasis added). Accordingly, as a practical matter, “neutral” factors, such as this one, cut against abstention and in favor of jurisdiction.2

 

 

2. The Inconvenience of the Federal Forum

*3 “The second factor concerns the inconvenience of the federal forum, primarily its physical proximity to the evidence and witnesses.” Barone, 2017 WL 4179820, at *5 (citing Jackson-Platts, 727 F.3d at 1141). Although this factor refers to the “forum” as a whole, the parties focus on the location where the trial will be held. Since “physical proximity to the evidence and witnesses” is the primary concern, and evidence and witnesses are typically things you might see at a trial, the Court agrees that this is appropriate. As noted previously, the state court action is filed in Jefferson County, Alabama, so the trial, and any other Court settings, will be held there. The federal forum is the Northern District of Alabama, and, if this case goes to trial, it will be tried in the federal courthouse in Anniston, Alabama, which is in Calhoun County.3 Contrary to the Defendants’ arguments (see doc. 32 at 2), this Court does not have discretion to set the trial of this matter in Birmingham, although it often does set pretrial matters in whichever courthouse is most convenient for counsel.

 

Smith is from Jefferson County. Furthermore, at least two of his medical providers, Brookwood Hospital and his Trussville, Alabama surgeon, are located in Jefferson County.4 Also, Bridgette Lavender, one of the witnesses to the accident, resides in Jefferson County. A trial in Birmingham would obviously be more convenient for these witnesses. Smith identifies no witnesses who live in Anniston or Calhoun County, although he argues, correctly, that a trial held in Anniston would be more convenient to the first responders to the accident from Cleburne County–the Cleburne County EMS and police. (Doc. 31 at 6).

 

There is another factor to consider–Birmingham has a major airport. In the instant case, witnesses flying to Birmingham would have to drive to Anniston for trial. Therefore, a trial in Birmingham would be more convenient for Gonzalez, who is a resident of Miami, Florida, and employees from both Kars 2 Go, which is based in Miami, and PGT, which is based in Pennsylvania. Another witness to the accident is located in Mississippi. Whether that witness flies or drives, Birmingham is a more convenient forum than Anniston, as Birmingham is closer to Mississippi. Because the federal forum would be more inconvenient for most witnesses5, this factor favors abstention.

 

 

3. The Potential for Piecemeal Litigation

The Eleventh Circuit has stated:

The third factor concerns the avoidance of piecemeal litigation. Ambrosia Coal & Constr. Co., 368 F.3d at 1333. This factor, however, does not favor abstention whenever there is a parallel state case “involving substantially the same parties and substantially the same issues.” See Jackson-Platts, 727 F.3d at 1140, 1142. Rather, the “circumstances enveloping those cases” must be likely to “lead to piecemeal litigation that is abnormally excessive or deleterious.” Ambrosia Coal, 368 F.3d at 1333.

Barone, 2017 WL 4179820, at *5. The state court complaint, like the Complaint in the instant case, involves claims for negligence and wantonness concerning the same accident. (Compare doc. 1 at 2-5, doc. 7-1 at 4-6). Furthermore, every claim which arose out of the accident, except Smith’s, is already filed in the state court case as either a complaint or counterclaim. A judgment in the state court case would be more comprehensive, and would likely address all of the issues in this case.6 “[P]arallel litigation with identical factual allegations in which plaintiffs assert virtually identical legal claims encompassing the same elements and burdens of proof favors abstention because the litigants and the court are exposed to unnecessary inconvenience, expense, and the danger of needless duplication of effort.” Daniel v. Cullman Cty. Court Referral, LLC, No. 5:15-CV-00101-AKK, 2015 WL 3604210, at *3 (N.D. Ala. June 8, 2015) (Kallon, J.); see also Amason & Assocs., Inc. v. Columbus Land Dev., LLC, No. 7:12-CVB02459-JHE, 2014 WL 467509, at *12 (N.D. Ala. Feb. 5, 2014) (England, M.J.) (“Having the same factual claims in state and federal courts cause unnecessary inconvenience and expense and raise a distinct danger of duplicative, piecemeal litigation. The more the two actions are alike, the more this is exacerbated.”); Sides v. Simmons, No. 07-80347-CIV, 2007 WL 3344405, at *3 (S.D. Fla. Nov. 7, 2007) (Ryskamp, J.) (“The danger of piecemeal litigation is great [when] the issues being litigated in state court mirror those issues being litigated in federal court.”). This factor weights heavily in favor of abstention.

 

 

4. The Order in Which the Fora Obtained Jurisdiction

*4 The Eleventh Circuit has stated:

The fourth factor—“the order in which the fora obtained jurisdiction”—does not turn strictly on the chronological order in which the proceedings were initiated. Id. Rather, what matters for this factor is the relative progress of the proceedings. Jackson-Platts, 727 F.3d at 1142.

Barone, 2017 WL 4179820, at *6.

 

The state court action was filed on November 3, 2016 (doc. 7-1), while this action was filed on January 18, 2017 (doc. 1). Also, as noted above, every claim which arose out of the accident, except Smith’s, is already filed in the state court case as either a complaint or counterclaim. Accordingly, the claims in the state court case are more comprehensive that those in the instant case. That being said, Kars 2 Go was not added to the state court case until May 31, 2017, and did not file its answer and counterclaim until October 9, 2017, one day before the instant motion was filed. (Doc. 31 at 8).

 

Although neither case is trial ready7, discovery is further along in the state court case. The Plaintiff notes that PGT has served paper discovery on Gonzalez and Kars 2 Go in that case, and Gonzalez has responded to same. (See doc. 31 at 3). In the instant case, the discovery deadline, which was originally October 31, 2017, was initially extended by 90 days (doc. 22), then stayed altogether until a ruling on the instant motion (doc. 30). It seems that no paper discovery, nor even initial disclosures (see doc. 31 at 3), has occurred in this case. At least as of the date the briefs on the instant motion were filed, no depositions had been taken in either case. (See doc. 31 at 9; doc. 32 at 7).8

 

Upon consideration of the pleadings which have already been filed in the state court case, and the discovery which has been conducted therein, Court concludes that the order in which each forum obtained jurisdiction over the issues in this case favors abstention.

 

 

5. Whether State or Federal Law Will Be Applied

“ ‘[T]his factor favors abstention only where the applicable state law is particularly complex or best left for state courts to resolve.’ ” Barone, 2017 WL 4179820, at *6 (citing Jackson-Platts, 727 F.3d at 1143). The state court, and this Court, are equally capable of applying the state law applicable to these claims.9 This factor does not favor abstention.

 

 

6. The Adequacy of the State Court To Protect the Parties’ Rights.

“ ‘The sixth and final factor concerns whether the state court can adequately protect the parties’ rights.’ ” Barone, 2017 WL 4179820, at *6 (quoting Jackson-Platts, 727 F.3d at 1143). In this instance, the state court can adequately protect the parties’ rights. This factor is neutral.10

 

 

III. CONCLUSION

*5 At the end of the day, a trial in Birmingham, Alabama would be more convenient for most parties. Furthermore, the Court finds that there is an extreme danger and probability of piecemeal litigation in this instance, and that the state court case is already somewhat further along. For those reasons, abstention is appropriate and this case is STAYED until the state court case is resolved. See, Barone, 2017 WL 4179820, at *6, n. 8 (“Even assuming that the district court properly abstained under Colorado River, staying, rather than dismissing, Barone’s federal action would have been the correct course.”); Moorer v. Demopolis Waterworks & Sewer Bd., 374 F.3d 994, 998 (11th Cir. 2004) (“[A] stay, not a dismissal, is the proper procedural mechanism for a district court to employ when deferring to a parallel state-court proceeding under the Colorado River doctrine”) (internal quotations and citations omitted). The clerk of court is ORDERED to administratively close this matter until such time as the parties notify the court that the state court case is resolved.

 

DONE and ORDERED this 4th day of January, 2018.

 

All Citations

Slip Copy, 2018 WL 287764

 

 

Footnotes

1

The complaint in that case does not allege that PGT was liable for Smith’s actions based on the doctrine of respondeat superior. Instead, the complaint sets out separate counts for negligence and wantonness, and generally alleges that the “Defendants” are liable under each theory. (See doc. 7-1 at 4, 5).

2

Be that as it may, “[t]his is a flexible inquiry in which no single factor is dispositive.” Barone, 2017 WL 4179820, at *5.

3

Subject to exceptions not relevant here, the Northern District of Alabama’s “Plan for Random Selection of Grand and Petit Jurors” (the “Jury Plan”) provides that “[a]ll jury trials will be held in the jury divisional area in which the case is filed.” Jury Plan, at 1. A current copy of the Jury Plan can be found at:

http://www.alnd.uscourts.gov/sites/alnd/files/Amended% 20Jury% 20Plan.pdf

This case is filed in the Eastern Division of the Northern District of Alabama. The Jury Plan provides that it must therefore be tried in the federal courthouse in Anniston, Alabama.

4

The Defendants argue that there are others medical providers in Jefferson County.

5

No party argues that the proximity of any physical evidence is a relevant concern.

6

Although these arguments were made by the Defendants, the Plaintiff’s response merely cites a block quote from Ambrosia Coal, and then states: “There is certainly nothing particularly complicated about the law or facts in these two cases that would lead to piecemeal litigation that would qualify as abnormally excessive or delirious [sic].” (Doc. 31 at 8).

7

While the Defendants in this case say that they “expect” that the trial of the state court case will occur “relatively soon” (doc. 32 at 6), such speculation adds nothing to this Court’s analysis.

8

Although it seems that several were noticed, in both cases (see doc. 32 at 5-6), and possibly have been taken by now.

9

Although the Plaintiff admits that “Alabama law is applicable to both cases” (doc. 31 at 10), and that both cases “are primarily Alabama negligence and wantonness claims” (doc. 31 at 11), he seems to imply that abstention is inappropriate because some interpretation of the Federal Motor Carrier Safety Regulations may be necessary see (doc. 31 at 10-11). If that is so, the state court is in as good a position to do so as this Court.

10

The Plaintiff’s argument that Alabama’s compulsory counterclaim rule, which only allows him to file this claim, mitigates against abstention (see doc. 31 at 11-12), is without merit.

 

 

United States District Court,

W.D. North Carolina,

Asheville Division.

Mercedes Kamaria Powell MCAFEE, Plaintiff,

v.

HOWARD BAER, INC. and Keith Lovell Campbell, Defendants.

1:15 CV 182

|

Signed 01/12/2018

Attorneys and Law Firms

Bradley Alexander Stark, W. Perry Fisher, II, Fisher Stark, P.A., Asheville, NC, for Plaintiff.

Mark Clifford Kurdys, Roberts & Stevens, P.A., Asheville, NC, for Defendants.

 

 

ORDER

Dennis L. Howell, United States Magistrate Judge

*1 This matter is before the Court on a Motion for Summary Judgment (# 84) filed by Defendant Howard Baer, Inc. (“Defendant Baer”). The issues have been fully briefed, and the matter is now ripe for ruling. For the reasons addressed below, Defendant Baer’s Motion for Summary Judgment is GRANTED.

 

 

1. Procedural Background

On July 20, 2015, Plaintiff filed her Complaint (# 1-1) in the North Carolina General Court of Justice, Superior Court Division of Buncombe County, alleging negligence by Defendant Keith Lovell Campbell (“Defendant Campbell”), and further alleging that Defendant Baer was jointly and severally liable as Defendant Campbell’s employer at the time of the collision.

 

On August 24, 2015, Defendants removed this case to the United States District Court for the Western District of North Carolina, Asheville Division. There is complete diversity of citizenship between Plaintiff and Defendants.1 The amount in controversy exceeds $75,000, exclusive of costs and interests.2

 

On August 26, 2015, Defendants filed their Answer (# 3), in which they admitted that the April 1, 2013 accident occurred, Defendant Campbell was the operator of Defendant Baer’s truck that struck Plaintiff, and Defendant Campbell was an employee of Defendant Baer who was acting in the course and scope of his employment. Defendants denied that Defendant Campbell was negligent, and they affirmatively alleged contributory negligence.

 

On September 15, 2015, the parties consented to jurisdiction by the undersigned U.S. Magistrate Judge. After obtaining leave of court, Plaintiff filed an Amended Complaint (# 41) on November 8, 2016, in which she added a claim that Defendant Campbell was incompetent as a truck driver, Defendant Campbell’s incompetence was the proximate cause of Plaintiff’s injury, Defendant Baer knew or should have known that Defendant Campbell was incompetent, and Defendant Baer committed negligence in the hiring, training, and retention of Defendant Campbell as a truck driver.

 

In their November 17, 2016, Answer (# 45), Defendants denied that Defendant Campbell was negligent in the operation of a motor vehicle, denied that Defendant Campbell was incompetent, denied that Plaintiff was injured by Defendant Campbell’s negligence or incompetence, denied that Defendant Baer was negligent in the hiring, training, or retention of defendant Campbell, and affirmatively asserted the defenses of sudden emergency and Plaintiff’s contributory negligence in causing any injury.

 

*2 On May 24, 2017, Plaintiff filed her Second Amended Complaint (# 75), in which she added the following allegations: Defendant Baer was negligent as owner by entrusting possession and operation of its vehicle to Defendant Campbell when Defendant Baer knew or should have known that Defendant Campbell was incompetent in the operation of such a vehicle, such conduct by Defendant Baer was willful and wanton, and Plaintiff sought recovery of punitive damages.

 

In their June 6, 2017, Answer (# 77), Defendants admitted that Defendant Baer owned and entrusted the commercial vehicle to Defendant Campbell on April 1, 2013, but they denied that Defendant Baer was negligent and willful and wanton in the entrustment of a commercial motor vehicle to Defendant Campbell to operate that day. Defendants affirmatively alleged the defenses of sudden emergency and Plaintiff’s contributory negligence.

 

On October 1, 2017, Defendant Baer filed the instant Motion for Summary Judgment (# 84) and Memorandum in Support (# 86-1, 86-2). On October 16, 2017, Plaintiff filed a Memorandum in Opposition (# 88). Defendant Baer filed a Reply (# 89) on October 23, 2017.

 

 

1. Factual Background

The facts, viewed in a light most favorable to Plaintiff,3 are as follows: On April 1, 2013, around 9:07 a.m., in Asheville, North Carolina, Plaintiff was operating a 2012 Chevrolet traveling south on I-26 at or near mile marker 33. As Plaintiff slowed down for the traffic ahead, Defendant Campbell hit Plaintiff’s rear end. The crash occurred with Campbell’s truck going approximately ten miles per hour. Plaintiff’s vehicle was pushed into the back of the vehicle directly in front of her.

 

Following the accident, Officer P.J. Morgan, an officer with the North Carolina State Highway Patrol, issued Defendant Campbell a citation for failing to reduce speed. Plaintiff alleges that Defendant Campbell was negligent and caused the accident. Plaintiff further alleges that the accident caused her to suffer personal injuries.

 

Plaintiff argues Defendant Campbell was an employee of Defendant Baer and acting within the course and scope of his employment at the time of the accident. Plaintiff further argues that Defendant Baer’s internal personnel file reflects a pattern and practice of violating traffic and safety laws in a manner that endangers the public and led to the accident on April 1, 2013. Plaintiff seeks punitive damages, on the basis that Defendant Baer’s actions were malicious, willful, and wanton and done with reckless and wanton disregard for Plaintiff’s rights.

 

 

III. Legal Standard4

Summary judgment should be granted pursuant to Federal Rule of Civil Procedure 56 “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A factual dispute is deemed genuine when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material if it might affect the outcome of the suit under the governing law. Id.

 

*3 The party moving for summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party has met that burden, the nonmoving party then must persuade the court that a genuine issue remains for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). Disposition by summary judgment is only appropriate when the record could not lead a rational trier of fact to find in favor of the nonmoving party. Monahan v. Cty. of Chesterfield, 95 F.3d 1263, 1265 (4th Cir. 1996).

 

 

1. Discussion
2. There are no genuine issues of material fact on Plaintiff’s claim against Defendant Baer for negligent hiring, training, and retention.

To prove that a defendant exercised negligence in retention and supervision of an employee, a plaintiff must establish that the incompetent employee committed a tortious act resulting in injury to the plaintiff, and prior to the act, the employer knew or had reason to know of the employee’s incompetency. Wilkerson v. Duke University, 748 S.E.2d 154, 160 (N.C. App. 2013) (citing Smith v. Privette, 495 S.E.2d 395, 398 (N.C. App. 1998) (citation omitted)).

 

In the instant case, Plaintiff’s Memorandum in Opposition is full of assertions of fact and conclusions that are belied by the record before this Court. For instance, Plaintiff asserts that Defendant Baer “shows reckless indifference to hiring, training or retaining safe tractor trailer drivers, including Defendant Campbell.” Mem. Oppos. (# 88) at 5. This conclusion is not supported by the record.

 

In his deposition testimony, Defendant Campbell stated that he attended truck driving school for four weeks and passed the written and driving tests on the first attempt. Def. Campbell’s Dep. (# 85-1) 11-12, 14. A week after graduation, in approximately 2008, Defendant Campbell went to work driving a flatbed trailer for Arrow Trucking. Id. at 11, 14-15. Defendant Campbell drove for Arrow Trucking until they closed down. Id. at 15. Defendant Campbell took a five to six month break and then started working for Defendant Baer. Id. Defendant Campbell stated that prior to the crash on April 1, 2013, he had never been involved in a wreck that he caused.5 Id. at 17.

 

Defendant Campbell explained that Defendant Baer required him to have a physical examination when he applied to work. Id. at 19. Defendant Campbell was “pretty sure” Defendant Baer also conducted a background check on him. Id. Defendant Baer requires Defendant Campbell to have a physical every two years. Id. at 20. Defendant was under the impression that Micki Davis (“M. Davis”), an employee of Defendant Baer who was in charge of truck drivers’ safety, conducted a driving record check prior to his employment. Id. Also prior to being hired by Defendant Baer, Defendant Campbell was given a drug test. Id. at 21. Since being hired, Defendant Campbell has been subjected to random drug tests. Id.

 

Defendant Campbell stated that his training with Defendant Baer took a hands-on approach. Id. at 22. Defendant Campbell explained that his uncle, Calvin Flowers, trained him. Id. at 21-22. Defendant Campbell also testified that he was trained by M. Davis’s husband, Butch Davis. Id. at 22-23. Defendant Campbell explained that they made sure he knew how to drive a truck and all the components of a truck. Id. at 22. After training with employees for approximately two months, Defendant Campbell got his own truck. Id. At that time, Defendant Campbell, had a year and a half to two years of commercial trucking experience with Arrow Trucking. Id. at 23.

 

*4 Defendant Campbell stated that his trainers at Defendant Baer gave him a safety manual the day he was hired and reviewed it with him. Id. at 79. Defendant Campbell further stated that Defendant Baer also gave him a rule book, which is the same thing as the Federal Motor Carrier Safety Regulations. Id. at 80-81.

 

Defendant Campbell stated that prior to being released on his own, he was taken on a driving course to make sure he knew what was going on with the truck. Id. at 83. Defendant Campbell explained that he was also trained on how to maintain log books in the truck. Id. at 86.

 

During the course of his employment, Defendant Campbell attended safety meetings that Defendant Baer offered. Id. at 84. Defendant Baer had Defendant Campbell submit his driver log books every Sunday night. Id. at 87.

 

In her first set of interrogatories, Plaintiff asked Defendant Baer to list the traffic violations committed by Defendant Campbell while employed by Defendant Baer or during prior employment. (# 86-2) at 2. Defendant Baer responded with the following: (1) on March 12, 2014, Defendant Campbell plead guilty to driving in the improper lane on January 31, 2014; (2) on December 2, 2011, Defendant Campbell plead guilty to improper backing on October 24, 2011; and (3) on October 18, 2011, Defendant Campbell plead guilty to a violation of a High Occupancy Vehicle lane restriction on September 20, 2011.6 Id.

 

At the outset, the Court notes that Defendant Campbell’s traffic violations, as outlined above, are not the quality or quantity that would give this Court cause to believe there was negligence in hiring or retention. Moreover, the first violation, which occurred on January 31, 2014, took place after the accident at issue in this case. Thus, the first violation is not relevant to the determination of whether there was negligence when Defendant Campbell was hired on April 11, 2011. Def. Campbell’s Dep. (# 85-1) at 89.

 

Also, in Plaintiff’s first set of interrogatories, she asked Defendant Baer if it had knowledge of any hours of service violations committed by Defendant Campbell, either while employed by Defendant Baer or prior to such employment. (# 86-2) at 3. Defendant Baer responded that it had no knowledge of any hours of service violations.7

 

In Plaintiff’s request for production of documents, she asked Defendant Baer to produce all documents relating to any drug tests administered to Defendant Campbell or relating to him reporting for duty while having an alcohol concentration of 0.04% or greater. (# 86-2) at 7. Defendant Baer responded that the personnel file provided to Plaintiff’s counsel on July 19, 2016, included a pre-employment urine drug screen that was negative. Id.

 

Next, Plaintiff contends that Whitney Morgan (“Morgan”), her retained Motor Carrier Safety expert, has opined that Defendant Baer failed to take adequate action in response to Defendant Campbell’s pre-accident convictions and/or violations. (# 88) at 11-12. A review of Morgan’s report provides little more than an invitation for this Court to speculate with respect to what Defendant Baer should have done differently and how this played a potential role in the April 1, 2013, accident.

 

*5 Moreover, Plaintiff refers to Morgan’s deposition testimony and report to suggest that they create a genuine issue of material fact regarding whether Defendant Baer acted maliciously or recklessly in its hiring and training of Defendant Campbell. (# 88) at 13-14. Plaintiff, however, fails to point to anything in Morgan’s deposition testimony or report that supports such a finding.

 

In sum, the Court finds that there are no genuine issues of material fact with respect to Plaintiff’s claim against Defendant Baer for negligent hiring, training, and retention. Therefore, Defendant Baer is entitled to summary judgment on this claim.

 

 

1. There are no genuine issues of material fact on Plaintiff’s claim for negligent entrustment.

A plaintiff establishes negligent entrustment when the owner of an automobile entrusts its operation to an individual he knows or should know is an incompetent or reckless driver. Tart v. Martin, 540 S.E.2d 332, 334 (N.C. 2000). Based on a theory of his own negligence, the owner is liable for any injury or damage proximately caused by the borrower’s negligence. Id.

 

In Tart, 540 S.E.2d at 332, the North Carolina Supreme Court addressed whether the trial court improperly granted summary judgment on the issue of negligent entrustment where, as a matter of law, the defendant’s only moving violation was more than two years prior to the collision and his no-fault involvement in three accidents support a conclusion that he was an incompetent or reckless driver who was likely to injure others. Id. at 334. The North Carolina Supreme Court concluded that it was not error, and that the defendant’s record would not, as a matter of law, support a conclusion that he was so likely to cause harm to others by entrusting a motion vehicle to him rose to the level of negligent entrustment. Id.

 

In the instant case, Plaintiff argues that Defendant Campbell’s driving history indicates that he was not competent to safely operate the vehicle Defendant Baer entrusted to him. (# 88) at 10. Plaintiff further argues that there is no evidence Defendant Baer disciplined Defendant Campbell for repeated driving violations, citations, or log book issues. Id. In particular, Plaintiff contends that Defendant Campbell had the following “violations” prior to the April 1, 2013, accident:

• Improper backing;
• Speeding;
• Violation of HOV lane;
• Failure to obey traffic signal;
• Illegally talking on a cell phone while running a red light;
• Inaccurate driver logs and/or speeding (three occasions); and
• Compliance notification/logging violations

Id. at 14-15.

 

Plaintiff has misstated the facts by suggesting that each of the foregoing are “violations” committed by Defendant Campbell. A review of the record before this Court reveals the following: When Defendant Campbell was employed by Defendant Baer on April 11, 2011, it was determined that in the three years prior, he had one speeding violation, which occurred in Kentucky in August 2008. (# 86-2) at 60, 62. In the two years between Defendant Campbell’s hiring and the April 1, 2013, accident, he received two citations in Georgia: one for violating an HOV lane in September 2011, and one for improper backing in October 2011. (# 86-2) at 25. Both of these citations were reflected in the annual driving records that Defendant Baer obtained. Id.

 

In the two years between Defendant Campbell’s hiring and the date of the accident, Defendant Baer advised Defendant Campbell on June 23, 2011, that his logs indicated that he was traveling at an average speed of 75.56 mph over a 340-mile distance on May 9, 2011, and at an average speed of 90 mph over a distance of 585 miles on May 12, 2011. The notification stated, “The drivers logs listed below indicate that you were traveling in excess of 68 M.P.H. average speed, This can only be achieved by driving over the interstate speed limit. We cannot allow any driver to break state or federal laws. Consequently, I must warn you that we will not accept logs with this violation again. Failure to comply may lead to more severe action. Sincerely, Micki Davis, Safety Director. Howard Baer Inc.” (# 86-2) at 72.

 

*6 On November 21, 2011, Defendant Campbell was given a “Compliance Notification—Logging Violations” indicating that review of his logs showed that he used an improper driver code on his logs of November 5, 2011, November 9, 2011, and November 12, 2011. (# 86-2) at 70-71.

 

On March 6, 2013, Defendant Campbell received notification that his physical examination certificate was set to expire on March 31, 2013, which stated, “We cannot allow any driver to break state or federal laws. Please send a copy of your physical to us immediately. If you do not obtain a valid physical we will have to give you time off to get one. Thank you, we appreciate your help. Sincerely, Micki Davis, Safety Director. Howard Baer, Inc.” Id. at 68. An updated physical examination certificate, which was dated March 31, 2011, was provided to Defendant Baer and maintained in Defendant Campbell’s driver qualification file. Id. at 65.

 

On January 6, 2012, Defendant Baer received a facsimile, which was purportedly from North Carolina Department of Motor Vehicles Officer Anthony DeForge that indicated while he was off-duty on January 6, 2012, he witnessed a Defendant Baer truck driver run a red light while talking on a cell phone. Id. at 75-77. The truck number provided was matched to the truck assigned to Defendant Campbell. Id. Safety Director M. Davis indicated that Defendant Campbell read the fax, but stated that he only uses a hands-free phone. Id.

 

In light of the foregoing evidence, it is clear that Defendant Baer was not negligent in entrusting Defendant Campbell with a truck. The court finds that there are no genuine issues of material fact with respect to Plaintiff’s claim against Defendant Baer for negligent entrustment. Consequently, Defendant Baer is entitled to summary judgment on this claim.

 

 

1. There no genuine issues of material fact regarding Plaintiff’s request for punitive damages.

Plaintiff argues that Defendant Baer ignored the obvious safety issues with Defendant Campbell’s driving. (# 88) at 20. Plaintiff further argues that Defendant Baer knew or should have known that the violations and citations made Defendant Campbell more likely to be involved in an accident. Id. Plaintiff concludes that Defendant Baer’s decision to ignore the safety issues and continue to provide Defendant Campbell with a tractor trailer rises to the level of being in “conscious and intentional disregard of and indifference to the rights and safety of others.” Id. (quoting Hinson v. Dawson, 92 S.E.2d 393, 397 (N.C. 1956)).

 

Plaintiff has alleged that she is entitled to punitive damages pursuant to N.C. Gen. Stat. § 1D-15, et seq. Second Am. Compl. (# 75) ¶ 61. Pursuant to § 1D-15, a plaintiff seeking punitive damages must prove one of the following aggravating factors by clear and convincing evidence: (1) fraud, (2) malice, and (3) willful or wanton conduct. N.C.G.S. § 1D-15(a), (b); Seraph Garrison, LLC ex rel. Garrison Enterprises, Inc. v. Garrison, 787 S.E.2d 398, 411 (N.C. App. 2016). “Willful or wanton conduct” refers to “the conscious and intentional disregard of and indifference to the rights and safety of others, which the defendant knows or should know is reasonably likely to result in injury, damage, or other harm.” N.C.G.S. § 1D-5(7). Punitive damages can be awarded against a corporation only if “the officers, directors, or managers of the corporation participated in or condoned the conduct constituting the aggravating factor giving rise to punitive damages.” N.C.G.S. § 1D-15(c); George v. Greyhound Lines, Inc., 708 S.E.2d 201, 208 (N.C. App. 2011).

 

*7 In this case, Plaintiff has failed to point to any evidence of “willful or wanton conduct.” Rather, as each purported “violation” has been addressed and explained above, the Court declines to find that there has been a showing of any sort of willful or wanton conduct. Accordingly, Defendant Baer is entitled to summary judgment on the issue of punitive damages.

 

 

1. Conclusion

In light of the foregoing, Defendant’s Baer’s Motion for Summary Judgment (# 84) is GRANTED.

 

All Citations

Slip Copy, 2018 WL 411339

 

 

Footnotes

1

According to the Complaint, Plaintiff is a citizen and resident of Buncombe County, North Carolina, and Defendant Campbell is a resident of Nashville, Tennessee. (# 1-1) at 1. According to Defendants’ Notice of Removal, Defendant Baer is a Delaware Corporation with its principal offices in Nashville, Tennessee and terminals for loading and unloading refrigerated trailers in the following states: Michigan, Ohio, Illinois, Kentucky, Tennessee, Georgia, South Carolina and Alabama. (# 1) at 3. Defendant Baer has no facilities located in North Carolina. Id.

2

Defendant Baer has been notified of a subrogation claim against Defendants by the workers compensation carrier for Plaintiff’s employer claiming that over $45,000 is attributable to medical expenses in connection with the April 1, 2013, accident. (# 1) at 4.

3

When ruling on a motion for summary judgment, a court must view the record in the light most favorable to the non-moving party. Perini Corp v. Perini Constr., Inc., 915 F.2d 121, 124 (4th Cir. 1990).

4

Plaintiff’s statement of the summary judgment standard, which includes both a State and federal application, misses the mark. See Fox v. Massachusetts Bay Ins. Co., No. 2:13-CV-2567-JTF-dkv, 2015 WL 10791983, at *2 (W.D. Tenn. Feb. 23, 2015) (“Federal Rule of Civil Procedure 56 provides the standard for deciding summary judgment motions in cases premised on state law claims that are heard in federal court based on diversity jurisdiction.”) (citing Biegas v. Quickways Carriers, Inc., 573 F.3d 365, 374 (6th Cir. 2009)).

5

Defendant Campbell explained that he has been involved in two wrecks where he was not at fault. Def. Campbell’s Dep. (# 85-1) at 17.

6

Defendant Baer also noted that Defendant Campbell received a citation on April 1, 2013 for failure to reduce speed to avoid a collision, plead not guilty, and the matter is pending in Buncombe County, North Carolina. (# 86-2) at 2.

7

On November 21, 2011, Defendant Campbell was advised of discrepancies in his driving logs. Id. at 3.