Roth, Jr v. Ford Motor Company

Filing 45

MEMORANDUM OPINION & ORDER: That def's motion for summary judgment #36 is GRANTED. A separate judgment shall enter concurrently herewith. Signed by Judge William O. Bertelsman on 9/25/2017.(ECO)cc: COR w/copy mailed to John P. Roth, Jr., pro se, at address listed on the docket sheet

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT COVINGTON

CIVIL ACTION NO. 2:14-cv-64(WOB-CJS)
JOHN P. ROTH, JR.
VS.

PLAINTIFF

MEMORANDUM OPINION AND ORDER

FORD MOTOR COMPANY

DEFENDANT

This matter is before the Court on defendant’s motion for
summary judgment (Doc. 36).

As will be discussed below, plaintiff

has not filed a response to this motion.
Factual and Procedural Background
A detailed recitation of the procedural history of this case
is necessary to understand its current posture.
Plaintiff, represented by counsel, filed this case on April
8, 2014, alleging products liability claims arising out of an
accident that occurred while he was driving a 2004 Ford Explorer.
(Doc. 1).

Specifically, plaintiff alleges defects in the seat

belt and air bag systems.
The case came before the Court on its routine docket call on
September

10,

2014,

after

which

the

Litigation and Discovery Schedule.

parties

(Doc. 15).

filed

an

Agreed

This plan set a

deadline of April 1, 2015, for plaintiff to disclose his expert
witnesses and provide their reports.

On May 1, 2015, plaintiff moved for an extension of time to
produce his expert witness reports.

(Doc. 18).

The assigned

United States Magistrate Judge granted plaintiff’s motion and
extended the expert witness report deadline to September 1, 2015.
(Doc. 21).
On October 30, 2015, plaintiff’s counsel filed a motion to
withdraw based upon irreconcilable differences with plaintiff.
(Doc. 23).

The Magistrate Judge held a hearing on the motion on

November 17, 2015, which was attended by counsel as well as
plaintiff.

(Doc. 25).

The Magistrate Judge granted counsel’s

motion to withdraw, granted an extension of the deadlines to give
plaintiff a reasonable time to find new counsel, and cautioned
“Plaintiff that the case will move forward upon the earlier of new
counsel entering an appearance or the expiration of the 60-day
period for Plaintiff to obtain new counsel.”

(Id. at 2).

On January 19, 2016, plaintiff filed a notice that he had
been unable to obtain new counsel.

(Doc. 26).

The Magistrate

Judge set a telephonic conference for February 11, 2016, and
ordered that plaintiff participate. (Doc. 27). However, plaintiff
failed to participate in the call, so the Magistrate Judge issued
a show cause order setting a hearing for February 25, 2016.
28).

(Doc.

Plaintiff attended the show cause hearing and stated that he

had not received the Court’s order setting the prior conference.
(Doc. 29).

The Magistrate Judge found that plaintiff had shown
2

cause, and she gave him yet another thirty days to find new
counsel.
On March 30, 2016, the Magistrate Judge held another telephone
conference, at which time plaintiff informed the Court that he
believed he had retained attorney Marcus Carey to represent him.
(Doc. 30).
On April 6, 2016, the Magistrate Judge held another telephone
conference.

(Doc. 31).

Attorney Carey entered his appearance and

indicated that, after reviewing the file, he believed that he
needed a further extension to find an additional expert witness.
Defense counsel stated their objection to any such extension, and
the Court directed the parties to brief the issue.
Thereafter, plaintiff moved to permit the late disclosure of
expert witnesses, noting that his representation of plaintiff was
contingent on that motion being granted, and that the two expert
witnesses previously identified by plaintiff were not properly
vetted or instructed.

(Doc. 32).

Defendant filed a memorandum in

opposition to the motion (Doc. 33), and plaintiff did not file a
reply.
On March 31, 2017, the Magistrate Judge denied plaintiff’s
motion

to

permit

late

disclosure

of

witnesses,

noting

that

plaintiff had been given numerous extensions and that he had not
been reasonably diligent in prosecuting his case.

3

(Doc. 34).

On May 17, 2017, the Court ordered that summary judgment
motions be filed by June 16, 2017, with responses and replies to
be filed according to the Joint Local Rules.

(Doc. 35).

Defendant filed its motion for summary judgment on June 16,
2017.

(Doc. 36).

When plaintiff did not timely file a response,

the Court issued a show cause order as to why the motion should
not be granted.

(Doc. 37).

On Jul 13, 2017, attorney Carey filed a motion for extension
of time for plaintiff to respond to the motion for summary judgment
and for him to file a motion to withdraw as counsel.

(Doc. 38).

Carey noted that plaintiff had not responded to requests that he
communicate with Carey, and that plaintiff was now incarcerated,
serving a ten-year sentence following a felony conviction.

(Id.).

The Court granted the motion for an extension and subsequently
granted Carey’s motion to withdraw. (Doc. 41). Finally, the Court
gave plaintiff until August 15, 2017, to respond to defendant’s
motion for summary judgment, noting that if he failed to do so,
“the

presiding

District

Defendant’s

Motion

Plaintiff.”

filed

no

Summary

will

proceed

Judgment

to

response

by

the

without

adjudicate

(Id.).

Plaintiff

for

Judge

date

hearing

given,

and

from

the

undersigned began consideration of defendant’s motion for summary
judgment. Then, on September 18, 2017, the Court received a letter

4

from plaintiff asking for assistance in locating an attorney to
represent him.
Having recounted this history, the Court now issues the
following Memorandum Opinion and Order.
Analysis
The Court first addresses plaintiff’s letter requesting “time
and assistance in locating an attorney” to represent him.

(Doc.

44).
Plaintiff filed this case more than three years ago, he has
had two different sets of attorneys represent him and withdraw,
and over the course of the last three years he has been granted
multiple extensions of time not only to comply with pretrial
deadlines but also to locate new counsel.

After his first counsel

withdrew, it took plaintiff five months to find new counsel, who
appeared only contingent on being granted leave to find a new
expert witness.

When that motion was denied, counsel withdrew.

Plaintiff’s new request comes a month after his response to
the motion for summary judgment was due. Given the age of this
case, plaintiff’s failure to proceed with reasonable diligence
despite multiple extensions, and the merits, as discussed below,
plaintiff’s request for additional time to find counsel will be
denied. 1

1

In addition, while 28 U.S.C. § 1915(e)(1) authorizes a federal
court to appoint counsel to represent a pro se party in civil
5

Despite the various extensions and warnings by the Court about
his failure to respond to defendant’s motion for summary judgment,
plaintiff has still failed to file such a response.
cause for the Court to grant the motion.

This alone is

See Joint Local Rule

7.1(c) (“Failure to timely respond to a motion may be grounds for
granting the motion.”).

The fact that plaintiff does not have

counsel does not excuse this failure.

See Fleet Engineers, Inc.

v. Mudguard Tech., LLC, No. 1:12-cv-1143, 2014 WL 12465464, at *1
(W.D. Mich. July 11, 2014) (entering default against defendant who
had been granted several extensions to find new counsel); Ward v.
Wal-Mart Stores, Inc., Civil No. 3:05-0777, 2006 WL 3098800, at *2
(M.D. Tenn. Oct. 30, 2006) (granting motion to dismiss case where
plaintiff was unrepresented; plaintiff had been given extension of
time to find a new attorney and warned that he must file a response
to the motion to dismiss).
Moreover, defendant’s motion to dismiss should be granted on
the merits. The Court need not expend judicial resources reviewing
these issues at length, as defendant’s motion thoroughly sets forth
the law and the record evidence that warrants dismissal.

litigation, the “appointment of counsel in a
not a constitutional right and is justified
circumstances.” Lanier v. Bryant, 332 F.3d
2003) (citation omitted). The Court does not
circumstances present here.
6

civil proceeding is
only in exceptional
999, 1006 (6th Cir.
find any exceptional

In

summary,

the

testimony

from

plaintiff’s

own

expert

witnesses — who, as the Magistrate Judge previously pointed out,
were retained when plaintiff had counsel — demonstrates that there
is no triable issue as to whether the seatbelt system in the 2004
Ford Explorer in question was defective in design.
39, 45, 50-52, 76) (Doc. 36-5).

(Leiss Depo.

Further, neither of plaintiff’s

expert obtained data from the vehicle’s airbag system or examined
the system so as to provide a basis for their assertion that the
airbag should have deployed.

(Leiss Depo. 40-42; Proleika Depo.

37, 45, Doc. 36-6).
As detailed in defendant’s motion, plaintiff has failed to
create any triable issue on his other theories.

And, once again,

the testimony of his experts supports dismissal of his claims.
For example, they offer no testimony whatsoever to show that some
alternate design would have cured any alleged defect, a necessary
element of plaintiff’s “crashworthiness” claim.

See Estate of

Bigham v. DaimlerChrysler Corp., 462 F. Supp.2d 766, 773-76 (E.D.
Ky. 2006). Further, plaintiff’s experts specifically disavow any
opinion regarding causation.
As for the manufacturing defect claim, plaintiff’s expert
Peter Leiss testified that he has no opinion that there was any
manufacturing defect with respect to the vehicle in question.
(Leiss Depo. 112).

7

In sum, plaintiff has failed to oppose defendant’s motion for
summary judgment, and the Court’s own independent review of the
record yields the conclusion that plaintiff’s claims fail as a
matter of law.
Therefore, having reviewed this matter, and the Court being
sufficiently advised,
IT IS ORDERED that defendant’s motion for summary judgment
(Doc. 36) be, and is hereby, GRANTED.
enter concurrently herewith.
This 25th day of September, 2017.

8

A separate judgment shall