The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ANTOINE WARREN, ET AL. CIVIL ACTION
VERSUS NO. 18-11613
PETER MALLORY, ET AL. SECTION: “B”(4)
ORDER AND REASONS
Before the Court is plaintiffs Antoine Warren, Micheuala
Brown, and Anthony Nettles’ motion for partial summary judgment on
the issue of liability, (Rec. Docs. 56, 59, 68), and defendants
Peter Mallory, Wooden Products Transportation, Inc., and Wesco
Insurance Company’s motion in limine regarding third party medical
funding. (Rec. Docs. 64, 71).
For the reasons discussed below, IT IS ORDERED that the motion
for partial summary judgment (Rec. Doc. 56) is DENIED.
IT IS FURTHER ORDERED that the motion in limine (Rec. Doc.
64) is DENIED.
I. FACTS AND PROCEDURAL HISTORY
The facts of this case are simple. An alleged accident
occurred on November 29, 2017 between plaintiff Antoine Warren
and defendant Peter Mallory. Rec. Docs. 56-4 at 1, 59-1 at 1.
Defendant was driving a 2016 Freightline Model TT 18-wheeler
with an attached box trailer and plaintiff was driving his 2005
Cadillac SRX. Rec. Doc. 56-1 at 2. Both drivers were driving
eastbound on Interstate 10. Id. At some point, defendant
attempted to change lanes and collided with plaintiff’s car.
Rec. Id.
Officer Vaughn Valeary responded to the accident and issued
a citation to defendant for improper lane usage. Rec. Docs. 56-4
at 1, 59 at 4. Officer Valeary spoke with plaintiff Antoine
Warren after the accident and he admitted to seeing defendant’s
left blinker at some point before or after the accident. Rec.
Doc. 59-2 at 8-10.
Plaintiffs filed their complaint for negligence in November
2018. Rec. Doc. 1. Due to the COVID-19 pandemic, the jury trial
has been continued several times. Rec. Doc. 42, 66, 69.
Plaintiff filed this motion for partial summary judgment on
liability. Rec. Doc. 56.
II. LAW AND ANALYSIS
Under Federal Rule of Civil Procedure 56, summary judgment is
appropriate when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as
a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986) (quoting Fed. R. Civ. P. 56(c)). See also TIG Ins. Co. v.
Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002). A
genuine issue of material fact exists if the evidence would allow
a reasonable jury to return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
court should view all facts and evidence in the light most
favorable to the non-moving party. United Fire & Cas. Co. v. Hixson
Bros. Inc., 453 F.3d 283, 285 (5th Cir. 2006). Mere conclusory
allegations are insufficient to defeat summary judgment. Eason v.
Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996).
The movant must point to “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, 477 U.S. at 323. If and when the movant carries this
burden, the non-movant must then go beyond the pleadings and
present other evidence to establish a genuine issue. Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). However, “where the non-movant bears the burden of proof
at trial, the movant may merely point to an absence of evidence,
thus shifting to the non-movant the burden of demonstrating by
competent summary judgment proof that there is an issue of material
fact warranting trial.” Lindsey v. Sears Roebuck & Co., 16 F.3d
616, 618 (5th Cir. 1994). “This court will not assume in the
absence of any proof that the nonmoving party could or would prove
the necessary facts, and will grant summary judgment in any case
where critical evidence is so weak or tenuous on an essential fact
that it could not support a judgment in favor of the [non-movant].”
McCarty v. Hillstone Rest. Grp., 864 F.3d 354, 357 (5th Cir. 2017).
“Credibility determinations, weighing of the evidence, and the
drawing of legitimate inferences from the facts are jury functions,
not those of a judge.” Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 150 (2000) (quoting Anderson v. Liberty Lobby, 477
U.S. 242, 255 (1986)).
Here, plaintiffs are asking the court to make a credibility
determination between plaintiffs’ sworn testimony at their
depositions in December 2019 and Antoine Warren’s inconsistent
statements he made regarding if and when he saw Peter Mallory’s
left blinker to Officer Valeary the night of the accident. If
plaintiff did see the blinker, as allegedly stated to the officer,
he had “a duty to take caution for his or her own safety and evade
an accident if possible.” Rec. Doc. 59-2 at 9. This court will not
make such a determination. It is possible that a reasonable jury
could find comparative fault, and therefore, should be given the
opportunity to hear all of the evidence and make its own
determinations.
Further, plaintiffs seek sanctions against Peter Mallory
for failing to comply with discovery. According to the record,
the first scheduling order was docketed on August 29, 2019 with
discovery set to close by March 10, 2020. Rec. Doc. 22. In
February 2020, the court granted an extension for discovery to
close April 3, 2020 and defendants’ depositions were scheduled
for the weekend of March 27, 2020. Rec. Doc. 33. Because of the
COVID-19 pandemic, this court continued the trial on March 25,
2020 and discovery was extended once more to November 20, 2020.
Rec. Docs. 41, 42. Oddly, Peter Mallory’s deposition was not
scheduled until six months later on October 2, 2020 without
explanation on what prevented an earlier setting. Further,
plaintiffs did not seek sanctions or other relief after the
second deposition was canceled on September 22, 2020 and
after receiving notice on November 4, 2020 that defendant was
no longer cooperating. See Tyll v. Stanley Black & Decker Life
Insurance Program, No. 17-1591, 2018 WL 5847240, at *6 (D. Conn.
Nov. 8, 2018) (discussing cases when parties delayed bringing
discovery issues before the court and were denied relief). Relief
under the foregoing circumstances is tenuous. If plaintiff still
seeks relief, and if good cause is found for filing same at this
juncture, plaintiff may consider a motion to compel subject
deposition, etc. after compliance with local rules of the court.
New Orleans, Louisiana this 28th day of June, 2021
___________________________________
SENIOR UNITED STATES DISTRICT JUDGE