Snider v. New Hampshire Insurance Company et al, No. 2:2014cv02132 - Document 251 (E.D. La. 2016)
Court Description: ORDER AND REASONS re 166 Motion in Limine Exclude Fidel Garcia's Employment Records With Crane Transport, Inc.; 167 Motion in Limine Exclude Evidence Regarding Immigration to the U.S. or Ability to Testify in English; 168 Motion in Limi ne Exclude Evidence Relating to Garcia's Prior Vehicle, Driver, And Traffic Violations; 169 Motion in Limine Exclude Evidence Relating to ASF's Hiring, Retention, Training, and Supervision of Defendant, Fidel Garcia. Signed by Judge Susie Morgan on 6/14/2016. (bwn)
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Snider v. New Hampshire Insurance Company et al Doc. 251 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A KAN D ISE SN ID ER, Pla in tiff CIVIL ACTION VERSU S N o . 14 -2 13 2 N EW H AMPSH IRE IN SU RAN CE COMPAN Y, ET AL., D e fe n d an ts SECTION “E” ( 1) ORD ER AN D REAS ON S Before the Court are four m otions in lim ine filed by Defendants Fidel Garcia, ASF Interm odal LLC (“ASF”), and New Ham pshire Insurance Com pany (collectively, “ASF Defendants”). 1 A. Motion in Lim ine to Exclude Evidence Related to ASF’s Hiring, Retention, Training, and Supervision 2 ASF Defendants seek to exclude evidence related to ASF’s hirin g, retention, training, and supervision of ASF’s em ployee Fidel Garcia (“Garcia”). 3 ASF Defendants argue that Plaintiffs have never alleged any direct theory of negligen ce against ASF. 4 ASF Defendants also argue that Codefendants J ohnny Moore, J WK Enterprises, and Occidental Fire & Casualty Insurance Com pany of North Carolina (collectively, “J WK Defendants”) fail to allege a direct theory of negligence again st them . 5 Because no claim s of negligent hiring, negligent supervision, negligent retention, negligent training, or any other negligent acts other than the negligence of its em ployee Fidel Garcia, are pen ding 1 R. Docs. 166, 167, 168, 169. R. Doc. 169. 3 Id. 4 R. Doc. 169-1 at 1– 2. 5 Id. at 2– 5. 2 1 Dockets.Justia.com against ASF, ASF Defendants contend any eviden ce relating to ASF’s hiring, retention, training, or supervision of Garcia is irrelevant and should be excluded. 6 Rule 8 of the Federal Rules of Civil Procedure requires that pleadings contain a short and plain statem ent of the claim showing the pleader is entitled to relief. 7 “[U]nder the Federal Rules of Civil Procedure’s requirem ent of notice pleading, defen dants in all lawsuits m ust be given notice of the specific claim s against them .”8 Although the claim ant need not plead specific facts, “the com plaint m ust ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’”9 “[A] plaintiff’s obligation to provide the grounds of his entitle[m ent] to relief requires m ore than labels and conclusions, and a form ulaic recitation of the elem ents of a cause of action will not do.”10 To satisfy the Rule 8(a) notice-pleading requirem ent, the pleading “m ust contain som ething m ore by way of a claim for relief than a bare averm ent that the pleader wants com pensation and is entitled to it or a statem ent of facts that m erely creates a suspicion that the pleader m ight have a legally cognizable right of action.”11 In Plaintiffs’ com plaint and am ending com plaints, Plaintiffs’ only allegation against ASF is that ASF “is vicariously liable under respondeat superior[] for the actions and/ or inactions of its em ployee [Garcia] and as such [ASF is] liable unto petitioners along with other nam ed defendants.”12 An allegation of vicarious liability is not sufficient to give ASF fair notice of the com pletely different causes of action for negligent hiring, 6 Id. at 5– 6. F ED. R. CIV. P. 8(a)(2). 8 Anderson v. U.S. Dep’t of Hous. & Urban Dev., 554 F.3d 525, 528 (5th Cir. 20 0 8 ). 9 Id. (quotin g Bell Atl. Corp. v. Tw om bly , 550 U.S. 544, 555 (20 0 7)). 10 Tw om bly , 550 U.S. at 555 (internal quotation m arks om itted). 11 5 F ED . P RAC. & P ROC. CIV. § 1216 (3d ed. 20 16). 12 R. Doc. 26 at ¶ VI (“Plaintiffs’ First Supplem ental and Am endin g Petition for Dam ages”). 7 2 negligent training, negligent retention, or negligent supervision. 13 Plaintiffs argue ASF Defendants were put on notice of Plaintiffs’ intention to pursue a cause of action for negligent hiring, training, retention, and supervision when ASF received Plaintiffs’ interrogatories and requests for production. 14 ASF responded on March 23, 20 16; Plaintiffs reason that ASF m ust have received the interrogatories and requests for production and been put on notice prior to that date. 15 Plaintiffs also argue ASF Defendants were put on notice as a result of the nature of the questioning during the Rule 30 (b)(6) deposition of ASF’s corporate representative Am anda Hall on March 29, 20 16. 16 ASF Defendants argue that Plaintiffs are attem pting to im perm issibly expand the pleadings to include a cause of action for negligent hiring, training, supervision, and retention. 17 The Court agrees. While the Federal Rules set a liberal standard for stating a claim , they “do contem plate that the pleadings will refer to the occurrences sued upon and that they will show that the pleader has a claim on which he or she is entitled to relief.”18 Plaintiffs failed to give ASF fair notice of claim s for negligent hiring, negligent training, negligent supervision, or negligent retention. Allowing Plaintiffs to expand the pleadings in this m anner less than three m onths prior to trial would result in unfair prejudice to ASF. 19 13 See Anderson , 554 F.3d at 528; Tw om bly , 550 U.S. at 555. R. Doc. 198 at 1– 2. 15 R. Doc. 198-5 at 9. 16 R. Doc. 198-2 at 1; R. Doc. 198 at 1– 2. 17 See, e.g., Mathern e v. Cy tec Corp., No. 0 0 -2937, 20 0 2 WL 50 6816, at *8 (E.D. La. Mar. 28 , 20 0 2). 18 Id.; “Objectives and Functions of Pleadings under the Federal Rules,” 5 F ED . P RAC. & P ROC. CIV. § 120 2 (3d ed.). 19 ASF Defendants m aintain they “had no notice that any party plann ed to present evidence against it under a theory of n egligent hirin g, retention , training, and supervision ” until the filin g of the pretrial order on May 25, 20 16. See R. Doc. 169-1 at 5; R. Doc. 162. 14 3 In Plaintiffs’ opposition filed J une 9, 20 16, Plaintiffs requested leave of court to am end their com plaint. 20 Plaintiffs’ request is denied. Trial begins on J une 20 , 20 16. The Court will not allow Plaintiffs to am end their com plaint to add a cause of action eleven days before trial is set to begin. J WK Defendants argue they should be allowed to introduce evidence related to the negligent hiring, retention, training, and supervision of Garcia because three affirm ative defenses contained in their answer put ASF “on notice that [J WK] Defendants would seek to prove [ASF’s] liability for all or part of Plaintiffs [sic] dam ages.”21 The three affirm ative defenses raised are: FOU RTEEN TH AFFIRMATIVE D EFEN SE Defendants aver in the further alternative that if it be found that Plaintiffs sustained injuries or dam ages as alleged, which is denied, then said injuries or dam ages resulted from the negligence or fault of others, including but not lim ited to other drivers and/ or subsequent treating healthcare providers, for whose conduct Defendants are not responsible, which fact bars an d/ or m itigates Plaintiffs recovery against Defendants. FIFTEEN TH AFFIRMATIVE D EFEN SE That if Plaintiffs are entitled to recover from Defendants, which is expressly denied, such recovery should be apportioned pursuant to Louisiana Civil Codes 2323 and 2324 to the extent that the dam ages alleged in the Plaintiffs’ Petition are attributable to the negligence or fault of others for whose action the Defendants are not liable. TW EN TY-[ FIRST] AFFIRMATIVE D EFEN SE Defendants affirm atively assert that they are entitled to a set-off, credit, indem n ification and/ or contribution of dam ages from any other Defendants or responsible parties. 22 Under Rule 8, a defendant m ust “state in short and plain term s its defenses to each claim asserted against it” and “m ust affirm atively state any affirm ative defense, 20 R. Doc. 198 at 2. Doc. 18 9 at 3. 22 Id. See also R. Doc. 87 at 14, 15; R. Doc. 8 8 at 14, 15. 21 R. 4 including . . . contributory negligence.”23 An affirm ative defense is subject to the sam e pleading requirem ents as a com plaint. 24 “[A] defendant . . . m ust plead an affirm ative defense with enough specificity or factual particularity to give the plaintiff ‘fair notice’ of the defense that is being advanced.”25 In this case, because J WK Defendants wish to introduce this eviden ce to prove the ASF’s Defendants’ liability, the affirm ative defenses m ust also give fair notice to them . J WK Defendants argue they have sufficiently put all parties on notice that the contributory negligence of ASF Defendants in cludes negligen ce based on negligent hiring, retention, training, or supervision. 26 “[A] defendant . . . m ust plead an affirm ative defense with enough specificity or factual particularity to give the [party] fair notice of the defense that is being advanced. . . . The fair notice pleading requirem ent is m et if the defendant sufficiently articulated the defense so that the plaintiff was not a victim of unfair surprise.”27 An affirm ative defense of contributory negligence or com parative fault must provide fair notice to the plaintiff of the nature of the defense. 28 The Court finds J WK Defendants failed to give ASF Defendants fair notice that their affirm ative defense of contributory negligence in cluded negligence based on negligent hiring, supervision, retention, or training. 29 Accordingly, any evidence of ASF’s hiring, retention, training, or supervision of Garcia is not relevant and will not be 23 F ED. R. CIV. P. 8(b)(1)(A), 8 (c)(1). W oodfield v. Bow m an, 193 F.3d 354, 362 (5th Cir. 1999). 25 Id. 26 R. Doc. 18 9 at 4. 27 W oodfield v. Bow m an, 193 F.3d 354, 362 (5th Cir. 1999) (internal quotation m arks om itted). 28 See id. at 362; Schlosser v. Metro. Prop. & Cas. Ins. Co., No. 12-130 1, 20 12 WL 3879529, at *3 (E.D. La. Sept. 6, 20 12) (Vance, J .); Harris v. USA Ins. Com panies, No. 11-20 1, 20 11 WL 3841869, at *3 (E.D. La. Aug. 30 , 20 11) (Vance, J .). 29 See id.; Anderson, 554 F.3d at 528-29. 24 5 adm issible. 30 ASF Defendants’ m otion in lim ine to exclude eviden ce relating to ASF’s hiring, retention, train ing, or supervision of Garcia is GRAN TED . 31 B. Motion in Lim ine to Exclude Fidel Garcia’s Em ploym ent Records with Crane Transport, Inc. 32 ASF Defendants seek to exclude Garcia’s em ploym ent records with Crane Transport, Inc. (“Crane”). 33 The records include a handwritten note stating, “Fidel Garcia hired 4-17 term inated 2-27-14 failed drug test”34 and a Medical Review Officer Report reflecting that Garcia tested positive for cocaine. 35 Plaintiffs seek to introduce such evidence to show ASF knew or should have known that Garcia had tested positive on a drug test and had traffic violations on his record but nevertheless hired him . 36 As explain ed above, Plaintiffs have not m ade a claim for negligent hiring or negligent retention against ASF, and J WK Defendants have not sufficiently pled an affirm ative defense of contributory negligence based on negligent hiring or negligent retention. 37 As a result, this eviden ce is irrelevant. Plaintiffs and J WK Defendants also seek to introduce the em ploym ent records to attack Garcia’s credibility on cross-exam ination, as the parties contend Garcia was 30 F ED. R. E VID. 40 1; Bergeron v. Great W . Cas. Co., No. 14-13, 20 15 WL 350 50 91, at *5 (E.D. La. J une 3, 20 15) (Morgan, J .) (“Plain tiff appears to argue the challenged evidence is relevant to a potential claim against Transport for n egligent hirin g and/ or retention. Plaintiff has not asserted this claim in his latest com plaint. . . . Because there is currently no adm issible purpose for the challenged evidence under the current pleadin gs, it m ust be excluded.”); Andert v. Bew ley , 998 F.2d 10 14 (5th Cir. 1993) (per curiam ) (“The parties seekin g relief in civil actions are norm ally bound to the theory or theories of relief stated in the com plaint. After reviewing the com plaint in open court, the district court concluded that the plaintiffs failed to allege liability for Traweek in his supervisory capacity. We agree. Consequently, we conclude that the court did not abuse its discretion by excludin g evidence which was irrelevant to any theory stated in the plaintiffs’ com plaint.” (citations om itted)). 31 R. Doc. 169. 32 R. Doc. 166. 33 Id. 34 R. Doc. 166-2 at 85. 35 Id. at 86– 87. 36 R. Doc. 198 at 4. 37 See supra Part A. 6 untruthful in his em ploym ent application with ASF and in his deposition about his work em ploym ent history with Crane. 38 Rule 611 of the Federal Rules of Evidence outlines the scope of cross-exam ination: “Cross-exam ination should not go beyond the subject m atter of the direct exam ination and m atters affecting the witness’s credibility.”39 It is unlikely that ASF Defendants will solicit this testim ony during their direct exam ination of Garcia. As a result, Plaintiffs and J WK m ust rely on Rule 60 8, which provides in relevant part: “[E]xtrinsic evidence is not adm issible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court m ay, on cross-exam ination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of . . . the witness.”40 Rule 60 8 “perm it[s] inquiry on cross exam in ation into specific instances of conduct which m ay bear on a witness’ credibility in order to im peach the credibility of the witness.”41 The Court’s discretion under Rule 60 8(b) is “very substantial.”42 “[E]ven if character eviden ce is deem ed adm issible under Rule 60 8(b), its adm issibility is subject to Rule 40 3.”43 Indeed, “[t]he district court m ay under Rule 60 8 (b) determ ine if eviden ce is probative of truthfulness, and under Rule 40 3 exclude even probative eviden ce if the prejudicial effect outweighs the probative value.”44 Rule 38 R. Doc. 198 at 4; R. Doc. 199. F ED. R. E VID. 611(b). 40 F ED . R. E VID . 60 8 (b)(1). 41 United States v. Farias-Farias, 925 F.2d 80 5, 80 9 (5th Cir. 1991). 42 Id. 43 United States v. Skelton, 514 F.3d 433, 444 (5th Cir. 20 0 8). 44 United States v. W illiam s, 822 F.2d 512, 517 (5th Cir. 1987). 39 7 40 3 provides that the Court m ay exclude relevant eviden ce if its probative value is “substantially outweighed by a danger of . . . unfair prejudice.”45 The Court finds that the lim ited probative value of Garcia’s em ploym ent records with Crane is substantially outweighed by the danger of unfair prejudice. 46 There is no allegation that drugs played a role in Plaintiffs’ accident. 47 Further, as ASF Defendants note in their m otion in lim ine, there are num erous questions of trustworthiness regarding the em ploym ent file, including who wrote the handwritten note, when the note was written, and whether the Medical Officer Review Report contains accurate drug-test results for Garcia. 48 Accordingly, Garcia’s em ploym ent file with Crane is not adm issible under Rule 40 3, and ASF Defendants’ m otion in lim ine is GRAN TED . 49 C. Motion in Lim ine to Exclude Evidence Relating to Garcia’s Prior Vehicle, Driver, and Traffic Violations 50 ASF Defendants seek to exclude eviden ce relating to Garcia’s prior vehicle, driver, and traffic violations. 51 Plaintiffs argue the evidence is relevant because “it will show ASF breached its . . . duty to Plaintiffs to ascertain the com petency of Fidel Garcia to m ake sure that he was qualified to operate a com m ercial vehicle.”52 As explain ed above, Plaintiffs have not m ade a claim for negligent hiring or negligent retention against ASF and will not be allowed to am end their com plaint to do so at this tim e. 53 The evidence is not adm issible on this basis. 45 F ED. R. E VID. 40 3. Id. 47 Indeed, Garcia tested negative for drugs the day after Plaintiffs’ accident. R. Doc. 166-3. 48 See R. Doc. 166-1 at 3– 6. 49 R. Doc. 166. 50 R. Doc. 168. 51 Id. ASF Defendants specifically referenced Exhibits 31 and 32 in conferences with the Court. 52 R. Doc. 198 at 4– 5. 53 See supra Part A. 46 8 J WK Defendants seek to introduce the evidence to attack Garcia’s credibility on cross-exam ination, as J WK Defendants contend Garcia “attem pted to hide prior violations from ASF in his em ploym ent application.”54 As discussed above, Rule 60 8 “perm it[s] inquiry on cross exam in ation into specific instances of conduct which m ay bear on a witness’ credibility in order to im peach the credibility of the witness.”55 The Court’s discretion under Rule 60 8(b) is “very substantial.”56 The Court finds the probative value of evidence of Garcia’s vehicle, driver, an d traffic violations is not substantially outweighed by the danger of unfair prejudice an d m isleading the jury. 57 Rule 40 4(b) provides, “Eviden ce of a crim e, wrong, or other act is not adm issible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.”58 The eviden ce will not be introduced to show that on a particular occasion Garcia acted in accordance with his character but instead will be introduced to im peach his credibility. ASF Defen dants’ m otion in lim ine to exclude evidence relating to Garcia’s prior vehicle, driver, and traffic violations is D EN IED . 59 54 R. Doc. 190 . Farias-Farias, 925 F.2d at 80 9. 56 Id. 57 Skelton, 514 F.3d at 444. 58 F ED . R. E VID . 40 4(b)(1). 59 R. Doc. 168. 55 9 D. Motion in Lim ine to Exclude Evidence Regarding Garcia’s Im m igration to the United States or Ability to Testify in English 60 ASF Defendants seek to exclude evidence regarding Garcia’s im m igration to the United States and his ability to testify in English. 61 ASF Defendants’ m otion is GRAN TED AS U N OPPOSED . N e w Orle a n s , Lo u is ian a, th is 14 th d ay o f Ju n e , 2 0 16 . _____________ __________________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 60 R. Doc. 167. 61 Id. 10
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