United States District Court, W.D. Louisiana, Alexandria Division
PEREZ-MONTES MAGISTRATE JUDGE
DRELL, CHIEF JUDGE UNITED STATES DISTRICT COURT.
the Court is the motion of plaintiffs Earnest and Ursula
Kelly ("Plaintiffs") for summary judgment. (Doc.
40). All responsive pleadings have since been filed (Doc.
42), and the matter is ready for disposition. For the
following reasons, Plaintiffs' Motion for Summary
Judgment will be DENIED.
Background and Procedural History
Richard Rider ("Mr. Rider"), his employer United
Recovery Systems, ("URS") and Liberty Mutual
Insurance Company (collectively, "Defendants")
removed this suit pursuant to diversity jurisdiction under 28
U.S.C. §1332. Plaintiffs filed the original action on
September 15, 2015 in Alexandria City Court, and subsequently
transferred the suit to the 9th Judicial District Court
(Rapides Parish, Louisiana) on November 25, 2016 by alleging
plaintiffs' damages in excess of $50, 000. (Doc. l, p.
2). Defendants then removed suggesting complete diversity
between the parties, as the Plaintiffs' domicile is
Louisiana, Mr. Rider's domicile is Nebraska, Liberty
Mutual Insurance Company's state of incorporation is
Massachusetts, and URS is domiciled in Texas and/or Delaware.
(Doc. 1, p. 4; Doc. 50). Defendants also urged that
Plaintiffs claim damages in excess of $75, 000, fulfilling
the monetary requirement for diversity jurisdiction. (Doc. 1,
suit arises out of a motor vehicle accident that occurred at
the South traffic circle in Alexandria, Louisiana on November
18, 2014. (Doc. 1, p. 2). The undisputed facts are few. Ms.
Kelly and her passenger were proceeding northbound on
MacArthur Drive, and Mr. Rider, who was in town for business,
followed directly behind them. (Doc. 1, p. 3). Plaintiffs
vehicle approached the traffic circle and came to a complete
stop. (Doc. 1-2, p. 2). Mr. Rider failed to stop in time and
ran into the back of Plaintiffs' vehicle. (Doc. 42, p.
1-2). A policeman, who witnessed the entire accident, did not
issue tickets to either party. (Doc. 42, p.2).
motion for summary judgment argues that Mr. Rider was solely
at fault for the automobile collision in the course and scope
of his employment with URS. (Doc. 40-2, p. 1). Defendants
oppose the motion arguing there are genuine disputes of
material fact remaining relating to the negligence of both
parties and whether Mr. Rider was in the course and scope of
his employment at the time of the accident. (Doc. 42).
Plaintiffs did not file a timely reply to Defendants'
opposition; therefore, the record is complete and after
carefully considering the evidence and briefs, we observe the
Law and Analysis
Summary Judgment Standard
Court notes that Plaintiffs incorrectly cite to Louisiana
procedural rules in their motion for summary judgment. As
this case is heard in federal court, the Federal Rules of
Civil Procedure apply. The Federal Rules of Civil Procedure
provide that a court "shall grant summary judgment if
the movant shows 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 motion for summary
judgment must be supported by "particular parts of
materials in the record, including depositions, documents,
electronically stored information, affidavits or
declarations, stipulations, admissions, interrogatory answers
or other materials." Fed.R.Civ.P. 56(c)(1)(A). A dispute
of material fact is genuine if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party. See Anderson v. Liberty Lobby. Inc.. 477 U.S.
242, 248 (1986). We consider "all evidence in the light
most favorable to the party resisting the motion."
Seacor Holdings, Inc. v. Commonwealth Ins. Co., 635
F.3d 675, 680 (5th Cir. 2011) (internal quotations omitted).
In this analysis, we review facts and draw all inferences
most favorable to the nonmovant, "[h]owever, mere
conclusory allegations are not competent summary judgment
evidence, and such allegations are insufficient, therefore,
to defeat a motion for summary judgment." Eason v.
Thaler. 73 F.3d 1322, 1325 (5th Cir. 1996). It is
important to note that the standard for a summary judgment is
two-fold: (1) there is no genuine dispute as to any material
fact, and (2) the movant is entitled to judgment as
a matter of law.
instance, Plaintiffs fail to show that there is no genuine
dispute as to any material fact. In support of their motion,
Plaintiffs' attached portions of Mr. Rider's
deposition and earlier drafts of filed petitions for damages.
(Doc. 40-2, p. 3; Docs. 40-3, 40-4, 40-5, 40-6). This limited
supporting documentation fails to show an absence of genuine
dispute of material facts, but merely re-iterates
Plaintiffs' petition claims. While Plaintiffs selected
portions of Mr. Rider's deposition describing his action
of hitting Plaintiffs' vehicle in the rear when
approaching the traffic circle (Doc. 40-2, p. 4), this
evidence actually reflects disputes of material fact; such as
Plaintiffs' testimony concerning the Mr. Rider's
inability to stop juxtaposed with Mr. Rider's testimony
that Plaintiffs stopped short and unexpectedly when there was
no traffic approaching. Furthermore, there is a genuine
dispute regarding allegations of negligence and the liability
of Mr. Rider if he did breach the duty of care when observing
traffic on the traffic circle. (Doc. 40-2, p. 4).
Additionally, a policeman, who had not been deposed as of the
time of the filing of Plaintiffs' motion, witnessed the
accident and did not issue a ticket for either party. (Doc.
42, p. 5). This direct conflict in Plaintiffs' and
Defendants' testimonies does create a genuine dispute of
material fact that should be submitted before the trier of
Plaintiffs claim Mr. Rider was in the course and scope of his
employment at the time of the accident, but fail to provide
any supporting evidence. Mr. Rider's statement that he
was in Alexandria on business does not establish he was
operating the vehicle in the course and scope of his
employment at the time of the accident; no documentation nor
affidavits to that effect were submitted. Thus, a potentially
dispositive question remains whether Mr. Rider was within the
course and scope of his employment at the time of the
claim Mr. Rider breached the standard of care as a following
motorist in a rear end collision and is completely at fault
for the accident. Indeed, a following motorist in a rear end
collision is presumed negligent. Tyler v. Old American
County Mut. Fire Ins. Co. No. Civ. A. 05-1308, 2006 WL
861183, at *1 (E.D. La. 2006). However, this is a rebuttable
presumption if the motorist can prove: 1) he had his vehicle
under control, 2) he closely observed the preceding vehicle,
and 3) he followed a safe distance under the circumstances.
Id. In this case, Mr. Rider may be presumed
negligent because he hit the Plaintiffs' vehicle while
driving; but he can rebut this presumption. A police officer
who witnessed the incident and has yet to be deposed did not
issue a ticket for the accident and there is conflicting
testimony as to whether there was incoming traffic seen by
the Plaintiffs but not observed by Mr. Rider. In other words,
nothing has been shown as to why Plaintiff stopped
unexpectedly since Mr. Rider claims there was no good reason.
Because of the existence of ...