Nagra v. Mike Smith Forest Products LLC et al, No. 2:2008cv04564 - Document 21 (E.D. La. 2009)
Court Description: ORDER AND REASONS denying 5 Motion for Summary Judgment. Signed by Judge Ivan L. R. Lemelle on 7/1/2009. (caa, )
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Nagra v. Mike Smith Forest Products LLC et al Doc. 21 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA JONETTE NAGRA CIVIL ACTION VERSUS NO. 08-4564 MIKE SMITH FOREST PRODUCTS, L.L.C. AND HARVEST HAUL TRUCKING, L.L.C. SECTION: “B”(4) ORDER AND REASONS Before Motion for the Court Summary is Defendant, Judgment alleging Nagra’s, claims have prescribed. opposed. (Rec. Doc. 11). Harvest that Haul Plaintiff, (Rec. Doc. 5). After Trucking’s, review of Jonette The motion is the pleadings, applicable law and for the following reasons, IT IS ORDERED that Defendant’s Motion for Summary Judgment is DENIED. A. STANDARD FOR SUMMARY JUDGMENT Summary Judgment is proper if the pleadings, depositions, interrogatory answers, and admissions, together with any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment on the matter. Fed. R. Civ. P. 56(c); Catrett, 477 U.S. 317, 327 (1986). See also Celotex Corp. v. The moving party has the burden of showing there is no genuine issue of material fact, but 1 Dockets.Justia.com may discharge this burden by showing the absence of evidence necessary to party’s case. (1986). A support an essential element of the Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 genuine issue exists if evidence would reasonable jury to return a verdict for the nonmovant. B. nonmoving allow a Id. APPLICABILITY OF PRESCRIPTION Louisiana Code of Civil Procedure article 1163 provides for an exception to the one-year liberative prescription for delictual actions when: [t]he action or defense asserted in the amended petition or answer arises out of the same conduct as the transaction set forth, or attempted to be set forth in the original pleading. For an amended pleading to be exempt from prescription pursuant to Louisiana Code of Civil Procedure article 1163 it must: (1) arise out of the same transaction or occurrence set forth in the original pleading; (2) the purported substitute defendant must have received notice of the institution of the action such that he will not be prejudiced in maintaining a defense on the merits; (3) the purported substitute defendant must know or should have known that but for a mistake concerning the identity of the proper party defendant, the action would have been brought against him; (4) the purported substitute defendant must not be a wholly new or unrelated defendant, since this would be tantamount to assertion 2 of a new cause of action which would have otherwise prescribed. Ray v. Alexandria Mall, 434 So.2d 1083, 1087 (La. 1983). While the instant amended claim arises out of the same event, it is unclear whether Defendant is a wholly unrelated party and knew of Plaintiff’s suit. issues must be resolved for Defendant’s new or Two existing motion to prevail: ownership of the tractor-trailer involved in the accident and whether the tractor-trailer’s owner is affiliated with Defendant. A related defendant who is not wholly new is one that shares an identity interest or is affiliated with the original defendant. For example, in Maltese v. Keller Industries, the plaintiff sued Keller Industries because he was injured by a chair which he purchased in a box bearing Keller’s name. 853 F.Supp. 945 plaintiff’s (E.D. belated La. 1994). pleading Id. because The court Sunbeam and allowed Keller the were partners in manufacturing the chair and shared the same counsel, therefore, the court concluded the parties were not unrelated and Sunbeam would not be prejudiced in its defense. Id. In Findley v. City of Baton Rouge, the plaintiff, who hit a pole while riding his bike in a public park in Baton Rouge, mistakenly sued the City of Baton Rouge and later learned the East Baton Rouge Parks and Recreation Commission was the actual owner of the park. 3 570 So.2d 1168 (La. 1991). The Court allowed Findley to belatedly sue BREC because it shared an “identity interest” with East Baton Rouge Parish. Id. at 1171-1172. The city administered BREC and the two entities shared the same legal representation. “Alexandria Company” Id. Mall,” after but In Ray, was the plaintiff mistakenly sued allowed sue “Alexandria Mall tolled prescription to because “Alexandria Mall Company” was not “wholly new or unrelated” to “Alexandria Mall.” 434 So.2d at 1087. Like the defendants in the aforementioned cases, the defendants in Ray shared not only interest, but also the same legal representation. an identity Without this connexity, Plaintiff may not belatedly attempt to correct her mistake claiming the newly named defendant relates back to her initial suit. Goodman v. Huffman, 784 So.2d 718, 732 (La.App. 2d Cir. 4/4/2001). While Defendant argues it is a wholly new defendant and unrelated complaint, affidavit to the defendant Defendant’s of Harvest Haul. Frank only Montalvo, named proof in of co-owner (Rec. Doc. 5-5)1. 1 Plaintiff’s this and assertion vice original is the president While Mr. Montalvo’s affidavit Defendant claims State of Louisiana Motor Vehicle Crash Report no. 4075716 identifies Timber Transport as Mr. Jackson’s employer, however, Defendant did not attach this report as an exhibit. While Plaintiff attached this document as an exhibit, there is no indication of Mr. 4 of declares no affiliation unsubstantiated, with self-serving Timber testimony is Transport, the only this evidence Defendant provides to dispose of Plaintiff’s claims. This Court is not bound by such evidence and consequently, such evidence is not sufficient to dismiss Plaintiff’s claims. S.E.C. v. Huffman, 996 F.2d 800, 803 (5th Cir. 1993). Plaintiff alleges in her pleadings Defendant are affiliated companies. Timber Transport and While Plaintiff's assertion can also be considered self-serving, it is sufficient to raise genuine and material factual disputes concerning the affiliation of the two companies. Further, Defendant is not prejudiced by the belated addition because it had notice of related lawsuits involving the same accident sub judice. Plaintiff took timely corrective action to name the proper defendant upon discovery of its identity. That action comports with the requirements of Louisiana Civil Procedure article 1163 and applicable case law. Defendant fails to show neglect or willfulness on Plaintiff's part. Jackson’s employer in the report. (Rec. Doc. 11-11). 5 Accordingly, IT IS ORDERED that Defendant's Motion for Summary Judgment is DENIED. New Orleans, Louisiana, this 1st day of July, 2009. ______________________________ UNITED STATES DISTRICT JUDGE 6
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