United States District Court, W.D. Louisiana, Shreveport Division
L. HAYES, MAG. JUDGE
G. JAMES, UNITED STATES DISTRICT JUDGE
the Court is a Motion for Summary Judgment [Doc. No. 43]
filed by Defendant Mabe Trucking Co, Inc. Plaintiff David
Franco opposes the motion. [Doc. No. 45]. For reasons
assigned below, the motion is DENIED.
FACTS AND PROCEDURAL HISTORY
controversy arises out of a November 24, 2015 vehicular
accident in Caddo Parish, Louisiana. On November 22, 2016,
Plaintiff filed suit in the United States District Court for
the Eastern District of Texas. [Doc. No. 1]. Plaintiff did
not serve Defendant until January 20, 2017.
February 10, 2017, Defendant moved to either dismiss or
transfer the proceeding, arguing that the Eastern District of
Texas lacked personal jurisdiction and was an improper venue.
[Doc. No. 4]. On June 13, 2017, Judge Roy S. Payne, a United
States Magistrate Judge for the Eastern District of Texas,
granted Defendant's motion and transferred the proceeding
to this Court. [Doc. No. 13]. Judge Payne opined:
“Because the Court lacks personal jurisdiction over
[Defendant], and hence venue under § 1391(b)(1) is
improper, the Court finds it suitable in the ‘interests
of justice' to transfer the case to the Western District
of Louisiana, the district where the accident occurred.
See 28 U.S.C. § 1406(a).” Id. at
filed the instant Motion for Summary Judgment on January 23,
2018, moving to dismiss “because Plaintiff's
lawsuit was filed in an improper venue, and Plaintiff failed
to serve [Defendant] until well after the one-year
prescriptive period ran . . . .” [Doc. No. 43, p. 1].
Plaintiff responded to the motion on February 8, 2018. [Doc.
No. 45]. Defendant replied on February 21, 2018. [Doc. No.
50]. Plaintiff filed a surresponse on March 2, 2018 [Doc. No.
53], and Defendant filed a surreply on March 6, 2018 [Doc.
LAW AND ANALYSIS
Standard of Review
judgment is appropriate when the evidence before a court
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 fact is
“material” if proof of its existence or
nonexistence would affect the outcome of the lawsuit under
applicable law in the case. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute about a
material fact is “genuine” if the evidence is
such that a reasonable fact finder could render a verdict for
the nonmoving party. Id.
party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis
for its motion, and identifying those portions of ‘the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
' which it believes demonstrate the absence of a genuine
issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (quoting
Anderson, 477 U.S. at 247). “The moving party
may meet its burden to demonstrate the absence of a genuine
issue of material fact by pointing out that the record
contains no support for the non-moving party's
claim.” Stahl v. Novartis Pharm. Corp., 283
F.3d 254, 263 (5th Cir. 2002). Thereafter, if the non-movant
is unable to identify anything in the record to support its
claim, summary judgment is appropriate. Id.
“The court need consider only the cited materials, but
it may consider other materials in the record.”
evaluating a motion for summary judgment, courts “may
not make credibility determinations or weigh the
evidence” and “must resolve all ambiguities and
draw all permissible inferences in favor of the non-moving
party.” Total E & P USA Inc. v. Kerr-McGee Oil
and Gas Corp., 719 F.3d 424, 434 (5th Cir. 2013)
(citations omitted). While courts will “resolve factual
controversies in favor of the nonmoving party, ” an
actual controversy exists only “when both parties have
submitted evidence of contradictory facts.” Little
v. Liquid Air. Corp., 37 F.3d 1069, 1075 (5th Cir.
1994). To rebut a properly supported motion for summary
judgment, the opposing party must show, with
“significant probative evidence, ” that
a genuine issue of material fact exists. Hamilton v.
Segue Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000)
(emphasis added). “‘If the evidence is merely
colorable, or is not significantly probative, ' summary
judgment is appropriate.” Cutting Underwater Tech.
USA, Inc. v. Eni U.S. Operating Co., 671 F.3d 512, 517
(5th Cir. 2012) (quoting Anderson, 477 U.S. at 248).
there can be no genuine dispute as to a material fact when a
party fails “to make a showing sufficient to establish
the existence of an element essential to that party's
case, and on which that party will bear the burden of proof
at trial.” Celotex Corp., 477 U.S. at 322-23.
This is true “since a complete failure of proof
concerning an essential element of the nonmoving party's
case necessarily renders all other facts immaterial.”
Id. at 323.
Whether Plaintiff's ...