Positive As of: July 21, 2018 10:24 PM Z
Cascio v. Balkan Express, LLC
United States District Court for the Western District of Louisiana, Shreveport Division
June 20, 2018, Decided; June 20, 2018, Filed
CIVIL ACTION NO. 17-cv-1105 LEAD

Reporter
2018 U.S. Dist. LEXIS 119648 *
PATRICIA CASCIO VERSUS BALKAN EXPRESS, LLC, ET AL
Subsequent History: Adopted by, Dismissed by Cascio v. Balkan Express, LLC, 2018 U.S. Dist. LEXIS 119592 (W.D. La., July 13, 2018)

REPORT AND RECOMMENDATION

Introduction
A tractor-trailer rig traveling on I-20 rear ended a Dodge stratus driven by Jabriel Pennington, which led to a chain reaction crash that involved several other cars. Mr. Pennington filed suit in state court against the truck driver and other defendants, and his case was removed to this court. It was then consolidated with a similar action filed by Patricia Cascio, another driver who alleges she was injured in the accident.
Before the court is a Motion to Dismiss (Doc. 25) in which two of the defendants ask the court to dismiss Mr. Pennington’s claims because he has failed to comply with a discovery order. After the motion was filed, Mr. Pennington’s attorney withdrew based on a lack of communication from Mr. Pennington. [*2] For the reasons that follow, it is recommended that all claims asserted by Mr. Pennington be dismissed for failure to prosecute.

Relevant Facts
Defendants Michael Ratliff and National Specialty Insurance Company served interrogatories and requests for production of documents on Mr. Pennington in January 2018. The defendants afforded Mr. Pennington extensions of time, but he failed to respond. They filed a motion to compel. The court entered an order (Doc. 24) that directed Mr. Pennington to “provide full and complete answers to the outstanding written discovery no later than April 17, 2018” and warned that failure to do so “will result in an appropriate sanction.”
Defendants represent in their motion to dismiss that they did receive a response to the discovery on April 17 from Mr. Pennington’s attorney, Jack M. Bailey Jr., but the answers were not complete and indicated that Mr. Pennington did not personally participate in preparing the responses. The responses included objections and noted that “counsel has not received any response from plaintiff to any of the multiple requests for plaintiff to meet with counsel in order to review his discovery responses.” Attorney Bailey indicated [*3] that he had not spoken with Mr. Pennington since late February 2018.
Attorney Bailey filed a Motion to Withdraw (Doc. 27) soon after the defendants filed their motion to dismiss. He stated, “It appears that plaintiff has abandoned his counsel.” Mr. Bailey wrote that he sent five letters to Mr. Pennington during March and April 2018, as well as a Facebook message, all asking him to contact Mr. Bailey as soon as possible. There was no response from Mr. Pennington. Mr. Bailey represented that he gave notice of his intention to withdraw to Plaintiff by mailing his motion to Mr. Pennington’s last known home address and Mr. Pennington’s grandmother’s home, where he had been known to stay, with both addresses being here in Shreveport. Mr. Bailey noted that Mr. Pennington had said he no longer has a telephone and could not give a contact telephone number to his counsel.
The court issued an order (Doc. 28) that granted Bailey’s motion to withdraw, strongly encouraged Mr. Pennington to retain new counsel, and granted Mr. Pennington until May 30, 2018 to either (1) enroll new counsel or (2) file with the court a written statement that he intends to represent himself. The order warned: “Failure [*4] to take one of these steps by the May 30, 2018 deadline may result in Plaintiff’s case being dismissed, without further notice, for failure to prosecute.” The court mailed a copy of that order to both Mr. Pennington’s address and his grandmother’s address. The copy mailed to Mr. Pennington’s home address was returned marked not deliverable, but the copy addressed to his grandmother was not returned.

Analysis
Federal Rule of Civil Procedure 37(b)(2) provides that a court may dismiss an action or impose other sanctions if a party fails to obey an order to provide or permit discovery. A dismissal with prejudice for violation of a discovery order is permitted if: (1) the refusal to comply results from willfulness or bad faith and is accompanied by a clear record of delay or contumacious conduct; (2) the violation is attributable to the client instead of his attorney; (3) the misconduct substantially prejudices the opposing party; and (4) a less drastic sanction would not substantially achieve the desired deterrent effect. FDIC v. Conner, 20 F.3d 1376, 1380-81 (5th Cir. 1994); Chisesi v. Auto Club Family Ins. Co., 374 Fed. Appx. 475 (5th Cir. 2010).
The court also has the authority to dismiss an action for failure to comply with an order, such as the one that directed Mr. Pennington to either enroll new counsel or file a written statement that he intends [*5] to represent himself. “A district court may dismiss an action for failure of a plaintiff to prosecute or to comply with any order of court.” McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988), citing Fed. R. Civ. P. 41(b). “The court possesses the inherent authority to dismiss the action sua sponte, without motion by a defendant.” Id., citing Link v. Wabash Railroad, 370 U.S. 626, 82 S.Ct. 1386, 1388-90, 8 L. Ed. 2d 734 (1962). Dismissal for such failures may be ordered “with or without notice to the parties.” Rogers v. Kroger Company, 669 F.2d 317, 319-20 (5th Cir.1982).
There is a clear record of delay or contumacious conduct in this case. Multiple letters from counsel, a Facebook message, and a court order failed to get Mr. Pennington to do anything to participate in his case. The record indicates that the violations of the orders and delays are attributable to Mr. Pennington rather than his former attorney, who made multiple efforts to get Mr. Pennington to participate. The misconduct substantially prejudices the defendants, who lack even the most basic discovery that is ordinarily obtained through the interrogatories and requests for production that were served. There is no reason to believe that a less drastic sanction would accomplish anything, considering that Mr. Pennington has completely abandoned his counsel and this case.
Mr. Pennington has been provided with more than an ample opportunity [*6] to indicate his desire to prosecute this case. He has done nothing, and his inaction has prejudiced the defendants. Proceeding further with this action would be a waste of time and resources for both the court and the parties. Dismissal with prejudice for failure to prosecute is the best exercise of the court’s discretion in these circumstances.1
Accordingly,
IT IS RECOMMENDED that all claims asserted by Jabriel Pennington be dismissed with prejudice for failure to prosecute.

Objections
Under the provisions of 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b), parties aggrieved by this recommendation have fourteen (14) days from service of this report and recommendation to file specific, written objections with the Clerk of Court, unless an extension of time is granted under Fed. R. Civ. P. 6(b). A party may respond to another party’s objections within fourteen (14) days after being served with a copy thereof. Counsel are directed to furnish a courtesy copy of any objections or responses to the District Judge at the time of filing.
A party’s failure to file written objections to the proposed findings, conclusions and recommendation set forth above, within 14 days after being served with a copy, shall bar that party, except upon grounds of plain error, [*7] from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. See Douglass v. U.S.A.A., 79 F.3d 1415 (5th Cir. 1996) (en banc).
THUS DONE AND SIGNED in Shreveport, Louisiana, this 20th day of June, 2018.
/s/ Mark L. Hornsby
Mark L. Hornsby
U.S. Magistrate Judge

West v. Jewett & Noonan Transp., Inc.
Supreme Judicial Court of Maine
May 15, 2018, Argued; July 12, 2018, Decided
Docket: Cum-17-448

Reporter
2018 ME 98 *; 2018 Me. LEXIS 99 **; 2018 WL 3384623
KATHLEEN WEST et al. v. JEWETT AND NOONAN TRANSPORTATION, INC.
Disposition: Judgment affirmed.

HUMPHREY, J.
[*P1] The crux of this dispute on appeal is whether, when the defendant has caused a physical invasion of the plaintiff’s property, the plaintiff must present evidence of a specific diminution in market value in order to successfully prove nuisance.
[*P2] Jewett and Noonan Transportation, Inc. (Jewett), appeals from a judgment of the Superior Court (Cumberland County, Horton, J.) entered upon a jury verdict awarding Kathleen and Erik West (the Wests) compensatory damages in the amount of $490,000 on the Wests’ claim of nuisance. Jewett contends that the trial court (1) erred when it denied Jewett’s motions for judgment as a matter of law on the nuisance claim because the Wests did not present evidence of a specific diminution in market value to their land and (2) erred or abused its discretion when it allowed the Wests to introduce evidence [**2] relating to the conduct of Jewett’s insurer in support of the Wests’ claims against Jewett. We disagree and affirm the judgment.
I. BACKGROUND
[*P3] Viewed in the light most favorable to the Wests as the prevailing parties, the following facts were established at trial. See Batchelder v. Realty Res. Hosp., LLC, 2007 ME 17, ¶ 3, 914 A.2d 1116. On June 11, 2014, an oil tanker owned and operated by Jewett overturned in a traffic circle in Gorham. As a result of the accident, over 9,000 gallons of oil and kerosene spilled from the tanker into a culvert and onto property belonging to the Wests.
[*P4] The Wests acquired their property, which consisted of twelve acres of land and a house, in 2011 with plans to subdivide and develop the property. Erik West, who previously owned a construction company, had begun to explore development possibilities prior to the spill: he spoke with Gorham’s code enforcement officer, hired an engineering company to create preliminary designs for the development, met with Gorham’s town planner and with a representative from the engineering company, and discussed the property with four interested real estate developers. After the spill, each of the potential developers lost interest.
[*P5] The Maine Department of Environmental Protection (the Department) [**3] coordinated clean-up efforts between the Wests and Jewett. Jewett assembled a team to handle the remediation that included Jewett’s safety director, an engineer and an environmental scientist from an environmental engineering firm, and a representative from Jewett’s insurer. By the end of the summer of 2014, Jewett had captured approximately 7,800 gallons of the oil, but tests performed by Jewett’s remediation team showed levels of soil contamination in excess of the Department’s standards.
[*P6] In late August 2014, the Wests communicated to Jewett that they wanted Jewett to remediate the remaining oil through excavation. Although the Jewett team decided that natural attenuation was the most cost-effective means to address the remaining oil and did not think excavation would be necessary, it did not communicate its preferred plan to the Wests at that time. Meanwhile, Jewett sought extensions of deadlines set by the Department, stalled the performance of the Department’s order to excavate,1 and continued to request additional soil sampling of the spill site, despite the Department’s opposition to further sampling. Eventually, Jewett performed additional sampling in July 2015. The results [**4] of this sampling showed lower contamination levels than the sampling performed in 2014. This supported Jewett’s argument for natural attenuation and prompted the Department to determine that excavation was no longer necessary. When Jewett concluded its remediation efforts, roughly 800 gallons of oil remained unaccounted for.
[*P7] On December 7, 2015, the Wests filed a complaint against Jewett alleging claims of (1) common law trespass; (2) statutory trespass; (3) negligence; (4) nuisance; and (5) strict liability; and requesting compensatory, double, and punitive damages. During the pendency of the case, the court granted Jewett’s motion for summary judgment on the Wests’ claims of statutory trespass and strict liability, but denied Jewett’s motions for summary judgment on the remaining claims and also denied the Wests’ motion for summary judgment.
[*P8] After a jury was selected, the parties filed seven motions and cross-motions in limine to exclude certain evidence at trial. Relevant to this appeal, the court granted Jewett’s motion to exclude evidence of lost profits or other dollar loss as a result of the spill but allowed the Wests to present evidence that the remaining oil inhibited marketing [**5] or development of the property. It also denied Jewett’s motion to exclude evidence that it was insured because the Wests merely sought to offer evidence relating to the conduct of the Jewett’s insurer on behalf of Jewett during the remediation process, not as evidence that Jewett was insured against liability. See M.R. Evid. 411.
[*P9] A jury trial took place over four days in August 2017. At the outset, the Wests told the jury that they sought compensatory damages for restoration purposes only. The Wests’ expert, a civil engineer, testified that the restoration would cost $490,000.
[*P10] When the Wests rested their case, Jewett filed motions for judgment as a matter of law on the Wests’ claims for punitive damages and nuisance. In support of its argument on nuisance, Jewett asserted that it was entitled to judgment because the Wests carried the burden of showing a reduction in the value of the land as an element of nuisance and had failed to present any evidence of a reduction in value. The court denied both motions.2
[*P11] After both parties rested, the court instructed the jury—without objection—that “[t]he measure for damage to property is ordinarily the cost of restoring the land to its original condition unless [**6] the cost is disproportionate to the diminution or reduction in value of the land caused by the trespass or nuisance, in which case damages are measured by the difference in value between . . . the land before and after the harm.”
[*P12] The jury returned a verdict in favor of the Wests on their nuisance claim only, awarding them compensatory damages in the amount of $490,000 and declining to award punitive damages. Jewett renewed its motion for judgment as a matter of law on the nuisance claim and also moved for a new trial, for remittitur, or to amend or alter the judgment. See M.R. Civ. P. 50(b), 59(a), (e). The court denied these motions and Jewett appealed.
II. DISCUSSION
A. Nuisance
[*P13] Jewett argues that the trial court erred when it denied Jewett’s motions for judgment as a matter of law on the Wests’ nuisance claim because the Wests did not present any evidence of a specific diminution in market value of their land due to the spill. HN1[ ] “We review the denial of a motion for judgment as a matter of law de novo to determine if any reasonable view of the evidence and those inferences that are justifiably drawn from that evidence supports the jury verdict.” Darling’s Auto Mall v. General Motors LLC, 2016 ME 48, ¶ 11, 135 A.3d 819 (quotation marks omitted). We view “all of the evidence in the [**7] light most favorable to the party opposing the motion”—in this case, the Wests. See Profit Recovery Grp., USA, Inc. v. Comm’r, Dep’t of Admin. & Fin. Servs., 2005 ME 58, ¶ 10, 871 A.2d 1237.
[*P14] We have adopted the elements for a common law cause of action for private nuisance from the seminal treatise on the law of torts from Prosser and Keeton. See Charlton v. Town of Oxford, 2001 ME 104, ¶ 36, 774 A.2d 366; see also Keeton et al., Prosser and Keeton on the Law of Torts § 87 at 622-23 (5th ed. 1984).HN2[ ] Those elements are as follows:
(1) The defendant acted with the intent of interfering with the use and enjoyment of the land by those entitled to that use;
(2) There was some interference with the use and enjoyment of the land of the kind intended, although the amount and extent of that interference may not have been anticipated or intended;
(3) The interference that resulted and the physical harm, if any, from that interference proved to be substantial[. . . .] The substantial interference requirement is to satisfy the need for a showing that the land is reduced in value because of the defendant’s conduct;
(4) The interference that came about under such circumstances was of such a nature, duration or amount as to constitute unreasonable interference with the use and enjoyment of the land . . . .
Charlton, 2001 ME 104, ¶ 36, 774 A.2d 366 (quoting Keeton et al., Prosser and Keeton on the Law of Torts [**8] § 87 at 622-23); see also Johnston v. Me. Energy Recovery Co., 2010 ME 52, ¶ 15, 997 A.2d 741 (providing a summary of the elements of nuisance). It is only the third element that is in dispute in this case.
[*P15] HN3[ ] When discussing the “substantial interference” requirement, Prosser and Keeton distinguishes between an invasion that “affects the physical condition of the plaintiff’s land” and conduct that involves “mere physical discomfort or mental annoyance.” See Keeton et al., Prosser and Keeton on the Law of Torts § 88 at 627. For the former, “the substantial or significant character of the interference is not in doubt.” Id. For the latter, “there is somewhat more difficulty in deciding when the interference is substantial and unreasonable justifying a recovery for damages. Probably a good working rule would be that the annoyance cannot amount to unreasonable interference until it results in a depreciation in the market or rental value of the land.” Id.; Charlton, 2001 ME 104, ¶ 36 n.10, 774 A.2d 366.
[*P16] In this case, the oil spill “affect[ed] the physical condition” of the Wests’ land and therefore “the substantial or significant character of the interference is not in doubt.” See Keeton et al., Prosser and Keeton on the Law of Torts § 88 at 627. Because the interference was more than “mere physical discomfort or [**9] mental annoyance,” the Wests did not need to show a specific “depreciation in the market or rental value of the land.” See Charlton, 2001 ME 104, ¶ 36 n.10, 774 A.2d 366 (quoting Keeton et al., Prosser and Keeton on the Law of Torts § 88 at 627). The Wests satisfied the third element by presenting evidence that (1) the oil physically invaded their land and (2) interest in the development of their property disappeared after the spill—in other words, that the interference caused by the physical invasion was substantial. The trial court therefore did not err when it denied Jewett’s motions for judgment as a matter of law on the nuisance claim.
B. Evidence of the Insurer’s Conduct
[*P17] Jewett also argues that the court erred or abused its discretion when it allowed the Wests to introduce evidence of the conduct of Jewett’s insurer at trial. In particular, Jewett contends that, by denying (1) Jewett’s motion in limine to exclude evidence of the insurer’s conduct and (2) Jewett’s motions for judgment as a matter of law on the punitive damages issue, the court improperly allowed the insurer’s conduct to form the basis for the Wests’ punitive damages claim. Jewett asserts that even though the jury did not award punitive damages, the evidence was [**10] prejudicial and influenced the jury’s award of compensatory damages on the nuisance claim.
[*P18] HN4[ ] “We afford trial courts ‘wide discretion’ in making evidentiary rulings, and review for abuse of discretion their rulings on the admissibility of evidence with respect to its prejudicial effect.” Estate of Nickerson v. Carter, 2014 ME 19, ¶ 12, 86 A.3d 658.
[*P19] The court did not err or abuse its discretion when it denied Jewett’s motion in limine, which sought to exclude evidence of Jewett’s insurer’s conduct in support of the Wests’ claim for punitive damages. Jewett argued that the evidence should have been excluded pursuant to M.R. Evid. 411, which provides that “[e]vidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully.” The court correctly determined, however, that the Wests were not offering the evidence as proof that Jewett was insured against liability. The evidence presented by the Wests that referenced the conduct of the insurer related to their punitive damages claim, and was intended to convince the jury to find, by clear and convincing evidence, that the remediation team assembled by Jewett, which included the insurer, acted with malice when it sought to deceive [**11] the Wests during the clean-up process.
[*P20] Jewett also seems to challenge the notion that the conduct of its insurer could form the basis of Jewett’s liability. The court instructed the jury, without objection, that “[a] corporation may be . . . responsible for the acts of people who are not its employees if the evidence shows that it’s more likely than not that the defendant has ratified those actions by approving the actions or accepting the benefit of those actions, or if the evidence shows that the defendant led the plaintiffs to believe that those other people had the authority to act on behalf of the defendant.” Because the Wests presented evidence that Jewett “led [them] to believe” that the insurer “had the authority to act on behalf of” Jewett3 by placing the insurer on its remediation team, the jury could have reasonably found that Jewett was responsible for the acts of the insurer.
[*P21] Finally, Jewett has failed to show how it was prejudiced by the evidence relating to its insurer. See Estate of Nickerson, 2014 ME 19, ¶ 12, 86 A.3d 658. Jewett’s motions made prior to, during, and after trial relating to this issue concerned the Wests’ claim for punitive damages and the jury did not award punitive damages in this case.4
The entry [**12] is:
Judgment affirmed.