JOHN McBRYDE, District Judge.
Before the court for decision is the motion for summary judgment filed October 25, 2018, by defendant, BNSF Railway Company. After having considered such motion and its supporting brief and appendix, the brief in opposition thereto of plaintiff, Paulette Jenkins, as the Personal Representative of the Estate of Beauford Jenkins, Deceased, and its supporting appendix, defendant's objections to plaintiff's summary judgment evidence and reply brief in support of its motion for summary judgment, the entire record of this action, and pertinent legal authorities, the court has concluded that such motion should be granted.
This action was instituted by the filing by plaintiff of her complaint on March 5, 2018. Plaintiff alleged in a conclusory way causes of action under the Federal Employers' Liability Act, 45 U.S.C. § 51,
She alleged that:
She is the widow of Beauford Jenkins ("Mr. Jenkins"). Doc.
Plaintiff alleged that she seeks all damages recoverable under the FELA,
Plaintiff caused a copy of her complaint to be served on defendant on May 25, 2018. Doc. 23. On June 22, 2018, defendant filed a motion (amending an earlier one) for more definite statement and a motion for
Doc. 25 at 4.
Instead of responding to the amended motions, plaintiff filed on July 12, 2018, an amended complaint.
The court treated defendant's motion for more definite statement as being directed to the amended complaint, and the court granted the motion by an order issued July 16, 2018, requiring that by July 30, 2018, plaintiff file a second amended complaint in which she was to provide the specificity sought by defendant.
Plaintiff filed her second amended complaint on July 30, 2018. Doc. 41. She persisted in her general, conclusory allegations, with slight alterations. She repeated that she sought "all damages recoverable under the FELA," and demanded judgment in excess of $150,000.
On August 24, 2018, the court ordered that by August 31, 2018, defendant answer the second amended complaint. Doc. 48. Defendant complied by filing an answer that, for the most part, denied the allegations of the second amended complaint, and stated as to certain of the allegations that defendant was without information sufficient to admit or deny. Doc. 51.
On September 13, 2018, defendant filed a renewed motion seeking a
On September 18, 2018, plaintiff filed a response to the renewed motion for
On September 25, 2018, the court issued an order by which the court expressed disappointment in the lack of specificity in plaintiff's second amended complaint, and sympathy with defendant's positions that "plaintiff should be required to make at least a minimal showing that there is some scientific basis for her claims, and that defendant should not be required to engage in lengthy, costly discovery in order to find out the exact nature of plaintiff's claims against it." Doc. 54 at 2-3. However, rather than to issue a
The court denied defendant's renewed motion for
On October 25, 2018, defendant filed its motion for summary judgment, asserting that it "is entitled to judgment as a matter of law as there is no evidence establishing a genuine dispute of material fact on the required elements of negligence and causation regarding the claims of Plaintiff." Doc. 55 at 1. The motion was supported by a brief in which defendant more specifically stated the grounds of its motion, by alleging that "Plaintiff Cannot Show That BNSF Breached Its Duty to Mr. Jenkins," doc. 56 at 3; "Plaintiff Cannot Show That Mr. Jenkins' Bladder Cancer Was Foreseeable to BNSF,"
As to plaintiff's LIA claim, defendant maintained in its brief that plaintiff "has demonstrated no facts . . . that BNSF in fact failed to provide Mr. Jenkins with proper locomotives or that such alleged failure caused his bladder cancer."
Defendant makes known in its brief that it had sought specificity relative to plaintiff's claims by service of a set of written interrogatories and a request for production of documents on September 21, 2018, with a deadline for answer and response of October 22, 2018, but that as of October 25, 2018, plaintiff had failed to answer or respond to either of them. Doc. 56 at 1-2. Defendant added that plaintiff's initial disclosure document failed to provide defendant the needed information.
Accompanying the motion was an appendix that contained the following material: (1) a copy of the second amended complaint, doc. 57 at App. 2-7; (2) a copy of the unanswered first set of written interrogatories directed by defendant to plaintiff,
On November 15, 2018, plaintiff filed her response in opposition to defendant's motion for summary judgment, urging the court to deny the motion in its entirety. Doc. 58. She did not provide any summary judgment evidence in support of her pleaded conclusory claims against defendant. Rather, her brief consisted primarily of citations of authorities and arguments that discuss in a general way the proof requirements and standards of conduct established by the FELA and court decisions, with emphasis on the importance of jury determinations in FELA cases. Doc. 59.
In the concluding pages of plaintiff's brief, she expressed her contention that "when all of the evidence included in the record is viewed in a light most favorable to Plaintiff, there is more than sufficient evidence creating a fact issue of the jury."
Plaintiff made no response to the ground of defendant's motion directed to the absence of evidence supporting the elements of plaintiff's LIA claim.
The appendix filed by plaintiff contained the following material: (1) a copy of a May 31, 2017 article by Michael J. Ellenbecker, Sc.D., Certified Industrial Hygienist, titled "Occupational Exposure of Railroad Workers," doc. 60 at 1-12; (2) a copy of a publication pertaining to a presentation made at a May 1955 meeting of the General Claims Division, Association of American Railroads,
On November 16, 2018, defendant filed a document by which it made objections to plaintiff's summary judgment evidence and replied to plaintiff's response to defendant's motion. Doc. 61.
The objections are directed to items (exhibits) 1, 2, 7, 8, and 9 in the appendix supporting plaintiff's response. Essentially, the objections are that those items are not authenticated in such a way that they can be considered as summary judgment evidence.
As to the merits of defendant's motion, defendant sums up its reply as follows:
By way of more pointed response to plaintiff's arguments that juries should be permitted to decide FELA cases, defendant called attention to court decisions that involved rulings in favor of defendants in FELA cases based on lack of evidence of negligence or because of the plaintiff's failure to produce probative evidence of causation. Id. at 4-6.
The September 25, 2018 order authorizing defendant to file a no-evidence motion for summary judgment had as one of its goals obtaining a definition or definitions of the issues to be resolved in this action to the end of facilitating discovery and early disposition of unfounded claims—those embraced in plaintiff's conclusory pleading in support of which plaintiff would be unable to adduce any evidence. Rule 11 of the Federal Rules of Civil Procedure contemplates that a plaintiff must have evidentiary support for her pleaded allegations. That Rule, combined with the pretrial requirements of Rule 16 of the Federal Rules of Civil Procedure, provides part of the rationale for entry of the court's September 25, 2018 order.
Moreover, the court has broad authority under Rule 56(f) of the Federal Rules of Civil Procedure to initiate a summary judgment motion of its own. Rule 56(f) gives the court authority, after giving notice and reasonable time to respond, to grant summary judgment for a nonmovant and to consider summary judgment on its own after identifying for the parties material facts that may not be genuinely in dispute. From those provisions, the court infers that Rule 56, perhaps combined with Rules 11 and 16, provides the court authority to do what the court did here by the September 25 order. As that order noted, the purpose of the motion for summary judgment the court authorized defendant to file was to "flush out whatever information defendant might need to proceed with discovery if the motion is denied or bring this case to an end if plaintiff lacks evidence to raise issues of fact as to the essential elements of her claim." Doc. 54 at 4.
Before the September 25 order was issued, defendant had done what it reasonably could do to gain a ruling of the court that would cause plaintiff to take steps to inform defendant of the factual bases of the broad claims contained in plaintiff's conclusory pleadings. And, the court had ruled in response to defendant's motion for more definite statement that plaintiff should provide enough specificity in an amended pleading to enable defendant to proceed with focused discovery and to have an understanding of the precise nature of the claims being made against it by plaintiff. The responses of plaintiff to the court's rulings made apparent that further action by the court would be required to cause plaintiff to provide defendant knowledge of the required factual bases of plaintiff's claims.
In
Since
The Fifth Circuit went on to explain that a movant meets its summary judgment burden when it has alleged that there is no evidence of an essential element of the plaintiff's claim, and that such an allegation requires the nonmovant "to present [evidence of that element] in order to survive summary judgment."
Even if more were required, there is much more in this case. Defendant has unsuccessfully sought by pretrial motions to force plaintiff to give defendant the information it needs to proceed with its discovery and other trial preparation. In response, plaintiff has simply thumbed her nose at defendant and the court. Defendant has gone further by serving pointed discovery requests on plaintiff in an attempt to obtain the specificity essential to defense of plaintiff's broadly, conclusory worded allegations against defendant. Doc. 52 at App. 8-31. The summary judgment record indicates that plaintiff has simply ignored those discovery requests.
For the stated reasons, defendant's no-evidence motion was appropriate, and it put on plaintiff, to avoid summary judgment, the burden to present responsive summary judgment evidence raising issues of fact as to all essential elements of plaintiff's claims against defendant.
Plaintiff's original and amended complaints and response to defendant's motion for summary judgment are an attempt by plaintiff to state a statutory cause of action under FELA. The pertinent statutory language defines such a cause of action as follows:
45 U.S.C. § 51;
Plaintiff's response to defendant's motion for summary judgment borders on an argument that the FELA imposes strict liability on employers if, notwithstanding the absence of evidence, a jury chooses to make an award to a plaintiff in a FELA case. As the First Circuit made clear in
Thus, essential elements of plaintiff's FELA claim that require summary judgment evidence are that (1) Mr. Jenkins suffered an injury while employed by defendant; (2) such injury or death resulted in whole or in part from; (3) the negligence of any of the officers, agents, or employees of defendant. The court turns now to a discussion of the authorities that define the ingredients of each of those elements.
The evidentiary requirement necessary to satisfy the element that Mr. Jenkins suffered an injury while employed by defendant is self-defining. There would have to be evidence that something happened while Mr. Jenkins was at work for defendant that caused him to suffer an injury of the kind claimed by plaintiff. Nothing provided by plaintiff in her appendix constitutes evidence raising that issue. The wording of 45 U.S.C. § 51,
As the Supreme Court explained in
An essential ingredient of the negligence element is reasonable foreseeability of harm.
The recommended definition of negligence in the Fifth Circuit Pattern Jury Instructions, Civil, appears to be an accurate summation of the controlling court decisions that define the evidence that must be adduced in order to raise a genuine issue of fact in support of the negligence element of a FELA claim. It reads:
Pattern Jury Instructions, Civil, 5th Cir., 2014 Ed., Instruction 5.1, FELA, at 67.
While the causation element has been redefined since 1930, the decision of the Supreme Court in
The current version of the causation element of a FELA claim was defined (or redefined) in
Pattern Jury Instructions, Civil, 5th Cir., 2014 Ed., Instruction 5.1, FELA, at 67.
Pour of plaintiff's appendix exhibits are excerpts from depositions that were taken by an attorney for BNSF Railway Company in an action pending in the United States District Court for the Southern District of Texas, Houston Division, on October 18, 2018, of fellow workers of the plaintiff in that action. Doc. 60 at 19-31. Each of the deponents had been identified by the plaintiff, apparently when he gave his deposition in that action, as someone he had worked with while employed by the Railway Company.
Nor do the deposition excerpts constitute any evidence that diesel exhaust exposure, even if the court were to assume that Mr. Jenkins suffered such an exposure, was the result of the failure of defendant to observe ordinary prudence or reasonable care. There is nothing in the deposition excerpts that is evidence that any such exposure, even if the court assumes that it existed as to Mr. Jenkins, was such that defendant should reasonably have foreseen that it would cause the kind of harm that plaintiff claims it caused Mr. Jenkins.
For all of the reasons stated above, the deposition excerpts provide no evidence creating a fact issue as to the negligence element of plaintiff's FELA claim.
Similarly, the deposition excerpts provide no summary judgment evidence raising a causation issue as to plaintiff's claims. Even if the court were to assume,
Finally, nothing in the deposition excerpts provides any summary judgment evidence raising an issue in favor of plaintiff on the injury-on-the-job element.
The remaining exhibits (Numbers 1, 2, 7, 8, and 9) are publications of one kind or another that for the most part deal with the question of whether diesel exhaust can, under certain circumstances, be carcinogenic. There is no summary judgment evidence from which the inference can be drawn that any of those items, even if they had been properly authenticated, has relevance to whatever led to the death of Mr. Jenkins. For each of the reasons given above why the deposition excerpts do not constitute summary judgment evidence establishing any element of plaintiff's claims against defendant, nothing in these remaining exhibits constitutes evidence raising an issue of fact as to any of those elements.
Moreover, none of plaintiff's appendix exhibits raise an issue of fact as to plaintiff's LIA claim.
Put simply, plaintiff has not adduced any summary judgment evidence creating a genuine dispute as to any material fact.
Rule 56(a) directs that "[t]he court
Plaintiff is incorrect when she contends in her response that the courts invariably have determined that a jury should decide each and every FELA case. In
675 F.3d 412, 426 (5th Cir. 2012).
Similarly, in the instant action, the evidence was insufficient on each of the elements of plaintiff's claims. As was true in
Plaintiff's arguments that the record is insufficient for the court to make a ruling on a motion for summary judgment because no depositions have been taken of coworkers of Mr. Jenkins, his wife, or experts, and that the record "is at best incomplete and at worst bare, discovery should continue and BNSF's motion should be denied." Doc. 59 at 16. The "discovery should continue" suggestion is puzzling, bearing in mind that the court has not received information that plaintiff has conducted any discovery in this case during its pendency since March 2018, and the record indicates that the only discovery sought to be accomplished by either party were the unsuccessful attempts by defendant to obtain specificity as to plaintiff's claims by a set of written interrogatories and requests for production of documents served by defendant on plaintiff. Doc. 52 at App. 8-31. As of the date of the filing defendant's motion for summary judgment, plaintiff had failed to answer or respond to those discovery items.
The court notes that plaintiff has not availed herself of the procedure prescribed by Rule 56(d) of the Federal Rules of Civil Procedure for relief if a party needs additional time within which to gather evidence for response to a motion for summary judgment. She hardly is in a position now to contend that she needs additional time for that purpose.
Plaintiff fails to acknowledge that this action has been pending since early-March 2018; and that the filing of this action at that time constituted a certification by plaintiff's attorney that to the best of his knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, plaintiff's factual contentions had evidentiary support. Fed. R. Civ. P. 11(b)(3). Moreover, plaintiff has known for a long period of time that defendant was seeking factual specificity concerning plaintiff's claims, but, rather than to provide that specificity, plaintiff appears to have consciously taken steps to avoid doing so. The failure of plaintiff to do so in response to defendant's motion compels, under the controlling authorities, the court to conclude that there is no genuine dispute as to any material fact and that defendant is entitled to judgment as a matter of law.
Therefore,
The court ORDERS that defendant's motion for summary judgment be, and is hereby, granted, and that all claims and causes of action asserted by plaintiff against defendant be, and are hereby, dismissed with prejudice.
Doc. 25 at 7.
