Duplantis v. Cochran et al, No. 2:2017cv10897 - Document 17 (E.D. La. 2018)
Court Description: ORDER AND REASONS regarding 7 Motion for Summary Judgment and 10 Motion to defer summary judgment. For the following reasons, the Court grants plaintiff's motion to defer summary judgment, and denies Gulf Coast's motion without prejud ice. Further, the Court orders plaintiff to effectuate service on Defendant Royce Cochran within 90 days, and to take a step in the prosecution of Defendant Bob Jent within 30 days. Failure to comply with these deadlines will result in dismissal of plaintiff's claims against the relevant defendant for failure to prosecute as stated herein. Signed by Judge Sarah S. Vance on 3/6/2018. (cg)
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Duplantis v. Cochran et al Doc. 17 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA NIKKI DUPLANTIS CIVIL ACTION VERSUS NO. 17-10 897 ROYCE COCHRAN, ET AL. SECTION “R” (3) ORD ER AN D REASON S Before the Court are Defendant Gulf Coast Pre-Stress Partners, Ltd.’s m otion for sum m ary judgment, 1 plaintiff’s m otion to defer sum mary judgm ent, 2 and the parties’ responses to the Court’s order to show cause. 3 For the following reasons, the Court grants plaintiff’s m otion to defer sum m ary judgm ent, and denies Gulf Coast’s m otion without prejudice. Further, the Court orders plaintiff to effectuate service on Defendant Royce Cochran within 90 days, and to take a step in the prosecution of Defendant Bob J ent within 30 days. I. BACKGROU N D This case arises out of a m otor vehicle collision in Lafourche Parish, Louisiana. 4 Plaintiff alleges that, on Novem ber 8, 20 16, she was approaching 1 2 3 4 R. Doc. 7. R. Doc. 10 . R. Doc. 13; R. Doc. 14; R. Doc. 15; R. Doc. 16. R. Doc. 7-2. Dockets.Justia.com the westbound entrance ram p of the US 90 highway when her car was suddenly hit by a vehicle driven by Royce Cochran. 5 The petition asserts that Cochran was driving a pilot vehicle for Gulf Coast at the tim e of the accident, and that Cochran’s vehicle was owned by Bob J ent. 6 Plaintiff further alleges that Cochran was engaged in business on behalf of defendants Gulf Coast and/ or A & A Services, Inc. 7 Gulf Coast represents that it retained A & A Services to obtain an escort vehicle for its tractor trucks traveling from the Mississippi/ Louisiana state line to Houm a, Louisiana. 8 On April 10 , 20 17, plaintiff filed suit in Louisiana state court against Gulf Coast, Cochran, and J ent. 9 Plaintiff am ended her petition on J une 8, 20 17, to add A & A Services as a defendant. 10 Plaintiff represents that she served Gulf Coast, J ent, and A & A Services, but has been unable to serve Cochran. 11 J ent has not m ade an appearance in this m atter. On October 20 , 20 17, Gulf Coast rem oved this case on the basis of diversity of citizenship. 12 On J anuary 19, 20 18, the Court ordered plaintiff to show good cause why her 5 6 7 8 9 10 11 12 Id. at 1-2. Id. at 2 ¶ 7. R. Doc. 7-3 at 2 ¶ 8. R. Doc. 7-1 at 2. R. Doc. 7-2. R. Doc. 7-3. R. Doc. 14 at 2. R. Doc. 1. 2 claim s against Cochran and J ent should not be dism issed for failure to prosecute. 13 Plaintiff tim ely responded to this order. 14 Gulf Coast now m oves for sum mary judgm ent as to plaintiff’s claim s against it. 15 Plaintiff m oves to defer consideration of sum m ary judgm ent under Federal Rule of Civil Procedure 56(d). 16 II. D ISCU SSION A. Su m m ary Ju d gm e n t Gulf Coast argues that it is not vicariously liable for Cochran’s negligence because Cochran was hired by A & A Services, and A & A Services is an independent contractor. 17 Gulf Coast further argues that it is not liable for negligent hiring or supervision because it had no evidence that A & A Services was irresponsible, it played no role in hiring Cochran, and it did not exercise operational control over the work of A & A Services. 18 Defendant offers the affidavit of its Hum an Resources Manager, Noel Monaghan, who attests that Gulf Coast hired an escort service through an independent 13 14 15 16 17 18 R. Doc. 13. R. Doc. 14. R. Doc. 7. R. Doc. 10 . R. Doc. 7-1 at 5-13. Id. at 13-15. 3 broker, that the services provided by A & A Services were for a specific occasion and at an agreed upon price, and that Gulf Coast exercised no right of direction, supervision, or operational control over the services to be perform ed by A & A Services and its employees or subcontractors. 19 Defendant also offers an invoice issued by A & A Services to Gulf Coast in the am ount of $ 155 for one car on Novem ber 8, 20 16. 20 Monaghan further attests that Gulf Coast used A & A Services for escort services before November 8, 20 16, without any issues or problem s. 21 Plaintiff asks the Court to defer consideration of sum m ary judgment under Federal Rule of Civil Procedure 56(d). 22 Plaintiff attaches an affidavit from her counsel stating that plaintiff cannot properly oppose sum m ary judgm ent until she is perm itted to discover facts regarding the relationship between Gulf Coast and the pilot vehicle operator, Cochran. 23 Rule 56(d) perm its a district court to deny or defer consideration of a m otion for sum m ary judgment, allow tim e to take discovery, or “issue any other appropriate order” when “a nonm ovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its 19 20 21 22 23 R. Doc. 7-4 at 2. R. Doc. 7-5 at 11. R. Doc. 7-4 at 2 ¶ 10 . R. Doc. 10 . R. Doc. 10 -3 at 2. 4 opposition.” The Fifth Circuit has instructed that “[s]uch m otions are broadly favored and should be liberally granted.” Culw ell v. City of Fort W orth, 468 F.3d 868, 871 (5th Cir. 20 0 6). Gulf Coast argues that sum m ary judgm ent should not be deferred because plaintiff has not diligently pursued discovery. 24 See McKay v. N ovartis Pharm . Corp., 751 F.3d 694, 70 0 (5th Cir. 20 14) (explaining that a requesting party is not entitled to relief if it has not diligently pursued discovery). Gulf Coast notes that plaintiff failed to pursue any discovery against it in the seven m onths between the filing of the original petition and Gulf Coast’s sum mary judgm ent m otion. 25 But Gulf Coast relies on cases that involved a substantially longer delay in pursuing discovery. See Danos v. Union Carbide Co., 541 F. App’x 464, 467 (5th Cir. 20 13) (affirm ing denial of Rule 56(d) m otion when sum m ary judgm ent m otion was filed over one year after the lawsuit was filed); Darville v. Turner Indus. Grp., LLC, No. 13-625, 20 15 WL 2357248, at *7 (M.D. La. 20 15) (finding a lack of due diligence when plaintiff failed to obtain inform ation over 21 m onths). Moreover, plaintiff represents that she did not conduct discovery against Gulf Coast because she granted Gulf Coast an extension of tim e to file 24 25 R. Doc. 12 at 5-8. Id. at 8. 5 responsive pleadings. 26 Gulf Coast filed an answer in state court on October 5, 20 17, rem oved this m atter on October 20 , 20 17, and filed its m otion for sum m ary judgment on November 9, 20 17. 27 Plaintiff has attached a copy of the interrogatories and requests for production she intends to serve on Gulf Coast if her Rule 56(d) m otion is granted. 28 “Although plaintiffs’ diligence in pursuing discovery was not exemplary,” the Court finds that her delay does not warrant denial of her Rule 56(d) m otion for lack of due diligence. Culw ell, 468 F.3d at 872. Gulf Coast further argues that plaintiff is not entitled additional discovery because she has offered no plausible basis to believe that the facts she seeks probably exist, or will influence the outcom e of sum mary judgm ent. 29 See Prospect Capital Corp. v. Mutual of Om aha Bank, 819 F.3d 754, 757 (5th Cir. 20 16). Plaintiff seeks to discover inform ation regarding the level of control Gulf Coast exercised over Cochran, including Gulf Coast’s policies with respect to pilot vehicles, its screening process for pilot drivers, and its level of supervision over Cochran. 30 26 27 28 29 30 R. Doc. 10 -1 at 2, 7. R. Doc. 1; R. Doc. 1-23; R. Doc. 7. R. Doc. 10 -1 at 4; R. Doc. 10 -2. R. Doc. 12 at 9. R. Doc. 10 -1 at 4-5. 6 In Louisiana, the existence of an independent contractor relationship depends on m ultiple factors, and no single factor is determ inative. N ew com b v. North East Ins. Co., 721 F.2d 10 16, 10 17 (5th Cir. 1983); see also Hillm an v. Com m -Care, Inc., 80 5 So. 2d 1157, 1163 (La. 20 0 2); Hickm an v. S. Pacific Transport Co., 262 So. 2d 385, 390 -91 (La. 1972). Further, a principal can be held liable for the torts of an independent contractor if “the principal exercises operational control over or expressly or im pliedly authorizes the independent contractor’s actions.” LeJeune v. Shell Oil Co., 950 F.2d 267, 270 (5th Cir. 1992) (internal quotation om itted). “Operational control exists when the principal retains the right to ‘direct supervision over the step-by-step process of accom plishing the work.’” Dragna v. KLLM Transport Servs., LLC, 638 F. App’x 314, 318 (5th Cir. 20 16) (quoting LeJeune, 950 F.2d at 270 ). Defendant relies on Monaghan’s affidavit to argue that it did not provide any direction or supervision over the escort services provided by A & A Services or Cochran, and that any incidental interaction with Cochran would be insufficient to show the required level of control. 31 Monaghan attests that Gulf Coast “exercised no direction, supervision, or operational control or the right of direction, supervision, or operational control over the 31 R. Doc. 12 at 11. 7 services to be perform ed by A & A” Services and its em ployees or subcontractors, and that A & A Services and its em ployees or subcontractors were free to use their own m ethods to perform the contract with Gulf Coast. 32 But these statem ents simply repeat the legal standard for vicarious liability, and the affidavit does not offer details about Gulf Coast’s relationship with A & A Services and Cochran. Gulf Coast does not provide a copy of its contract with A & A Services. Cf. Fruge ex rel. Fruge v. Parker Drilling Co., 337 F.3d 558, 564 (5th Cir. 20 0 3) (affirm ing summary judgment on operational control issue based on contract provisions assigning independent contractor final authority and responsibility for activities). Given the fact-specific nature of operational control, it is plausible that plaintiff could discover evidence that would create a genuine issue of fact as to Gulf Coast’s liability. Accordingly, the Court finds that plaintiff is entitled to a lim ited extension of tim e for discovery. Gulf Coast requests that any discovery necessary to oppose summ ary judgment be conducted within 90 days. 33 This tim efram e is reasonable. The Court grants plaintiff’s Rule 56(d) m otion, and denies Gulf Coast’s m otion for sum m ary judgm ent without prejudice. Gulf Coast m ay re-urge its m otion after 90 days. 32 33 R. Doc. 7-4 at 2. R. Doc. 12 at 2. 8 B. Ord e r to Sh o w Cau s e Neither Cochran nor J ent has m ade an appearance or filed a responsive pleading in this m atter. On J anuary 19, 20 18, the Court ordered plaintiff to show cause why Cochran and J ent should not be dism issed for failure to prosecute. 34 In response to this order, plaintiff has provided proof of service on J ent. 35 Plaintiff has also provided a copy of a letter her counsel m ailed to J ent stating that plaintiff will file a default judgm ent against him if he does not file a responsive pleading by February 16, 20 18. 36 Plaintiff represents that she is prepared to pursue default judgm ent against J ent. 37 The Court finds that plaintiff should be afforded additional tim e to prosecute her claim against J ent. Plaintiff further represents that she has been unable to serve Cochran, but she is prepared to hire a private process server in Mississippi to effectuate service. 38 The record reflects that plaintiff twice attem pted to serve Cochran by m ail, but service was returned as undeliverable each tim e. 39 Plaintiff attem pted to serve Cochran at the sam e address provided for Cochran by 34 35 36 37 38 39 R. Doc. 13. R. Doc. 16-3; R. Doc. 16-4; R. Doc. 16-5. R. Doc. 14-1. R. Doc. 14 at 7. Id. R. Doc. 16-1; R. Doc. 16-2. 9 A & A Services in its responses to plaintiff’s interrogatories. 40 Plaintiff also represents that she hired an investigative firm to perform a database search to ascertain Cochran’s current address, without success. 41 The Court finds that plaintiff has dem onstrated good cause for her failure to serve Cochran, and grants an additional 90 days to effectuate service. See Fed. R. Civ. P. 4(m ). III. CON CLU SION For the foregoing reasons, plaintiff’s Rule 56(d) m otion is GRANTED. Plaintiff shall conduct any discovery necessary to oppose Gulf Coast’s m otion for summ ary judgm ent within 90 days of this order. Gulf Coast shall prom ptly respond to plaintiff’s discovery requests. The Court DENIES Gulf Coast’s m otion for sum m ary judgment, without prejudice to re-urge the m otion after 90 days. IT IS ORDERED that plaintiff serve process on Royce Cochran within 90 days of this order. IT IS FURTHER ORDERED that plaintiff take a step in the prosecution of her action against Bob J ent within 30 days of this order. 40 41 R. Doc. 7-5 at 7; R. Doc. 16-1. R. Doc. 16 at 2. 10 Failure to com ply with these deadlines will result in dism issal of plaintiff’s claim s against the relevant defendant for failure to prosecute. New Orleans, Louisiana, this _ 6th _ _ day of March, 20 18. __ _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 11
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