Raborn v. Con-way Truckload, Inc. et al

Filing 47

ORDER AND REASONS denying 40 Motion for Partial Summary Judgment. Signed by Judge Susie Morgan on 11/28/2016. (cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KRISTIE L. RABORN,
Plaintiff

CIVIL ACTION

VERSUS

NO. 15-2969

CON-WAY TRUCKLOAD, INC.,
ET AL.,
Defendants

SECTION: “E”(2)

ORDER AND REASONS
Before the court is a motion for partial summary judgment filed by Plaintiff, Kristie
L. Raborn. 1 Defendant Con-way Truckload, Inc. (“Con-way”) opposes this motion. 2 For
the reasons that follow, Plaintiff’s motion3 is DENIED.
BACKGROUND
On June 30, 2015, Raborn filed a Petition for Damages in the 21st Judicial District
Court for the Parish of Tangipahoa against Defendants Con-Way, Gustavo J. Rivera, and
State Farm Mutual Automobile Insurance Company. 4 Raborn alleged injuries and
damages arising out of an automobile accident that occurred on August 15, 2014, when a
commercial tractor-trailer driven by Rivera and owned by Con-Way rear-ended Raborn’s
vehicle on Highway 51 in Hammond, Louisiana. 5 According to Raborn, she suffered
“severe and permanent personal injuries to her head, neck, back, wrist and other anatomy
which caused . . . physical and mental pain, suffering, and disability.” 6

R. Doc. 40.
R. Doc. 42. As Plaintiff explains in her motion for partial summary judgment, Defendant Con-way has no
knowledge of Mr. Rivera’s whereabouts. R. Doc. 40-1, at 1.
3 R. Doc. 40.
4 R. Doc. 1-5 at 1.
5 R. Doc. 1-5 at 2.
6 R. Doc. 1-5 at 3.
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On November 15, 2016, Raborn filed her motion for partial summary judgment. 7
Raborn seeks partial summary judgment as to the following: 1) at the time of the accident
at issue, Defendant Rivera was an employee of Defendant Con-way; 2) at the time of the
accident, Defendant Rivera was acting within the course and scope of his employment
with Defendant Con-way; and 3) Defendant Rivera’s negligence was the sole cause of the
motor vehicle accident. 8
On November 22, 2016, Defendant Con-way filed an opposition to the Plaintiff’s
motion. 9 Con-way argues Plaintiff has offered no evidence to support her motion for
partial summary judgment. 10
LEGAL STANDARD
Summary judgment is appropriate only “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” 11 “An issue is material if its resolution could affect the outcome of the action.” 12
When assessing whether a material factual dispute exists, the Court considers “all of the
evidence in the record but refrains from making credibility determinations or weighing
the evidence.” 13 All reasonable inferences are drawn in favor of the nonmoving party.14
There is no genuine issue of material fact if, even viewing the evidence in the light most

R. Doc. 40.
Id. at 1.
9 R. Doc. 42.
10 Id. at 1. Defendant Con-way only addresses the first to parts of Plaintiff’s motion, whether Defendant
Rivera was Con-way’s employee at the time and whether Defendant Rivera was acting within the course and
scope of his employment at the time of the accident. R. Doc. 42, at 2. Defendant Con-way does not contest
whether Defendant Rivera’s negligence was the sole cause of the accident.
11 FED. R. CIV. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
12 DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005).
13 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008); see also
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000).
14 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
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favorable to the nonmoving party, no reasonable trier of fact could find for the nonmoving
party, thus entitling the moving party to judgment as a matter of law. 15
If the dispositive issue is one on which the moving party will bear the burden of
persuasion at trial, the moving party “must come forward with evidence which would
‘entitle it to a directed verdict if the evidence went uncontroverted at trial.’” 16 If the
moving party fails to carry this burden, the motion must be denied. If the moving party
successfully carries this burden, the burden of production then shifts to the nonmoving
party to direct the Court’s attention to something in the pleadings or other evidence in the
record setting forth specific facts sufficient to establish that a genuine issue of material
fact does indeed exist. 17
If the dispositive issue is one on which the nonmoving party will bear the burden
of persuasion at trial, the moving party may satisfy its burden of production by either (1)
submitting affirmative evidence that negates an essential element of the nonmovant’s
claim, or (2) affirmatively demonstrating there is no evidence in the record to establish
an essential element of the nonmovant’s claim. 18 When proceeding under the first option,
if the nonmoving party cannot muster sufficient evidence to dispute the movant’s
contention that there are no disputed facts, a trial would be useless, and the moving party
is entitled to summary judgment as a matter of law. 19 When, however, the movant is
proceeding under the second option and is seeking summary judgment on the ground that
the nonmovant has no evidence to establish an essential element of the claim, the

Smith v. Amedisys, Inc., 298 F.3d 434, 440 (5th Cir. 2002).
Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263–64 (5th Cir. 1991) (quoting Golden Rule Ins. Co.
v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991)).
17 Celotex, 477 U.S. at 322–24 (Brennan, J., dissenting).
18 Id. at 331–32.
19 First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288–89 (1980);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50 (1986).
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nonmoving party may defeat a motion for summary judgment by “calling the Court’s
attention to supporting evidence already in the record that was overlooked or ignored by
the moving party.” 20 Under either scenario, the burden then shifts back to the movant to
demonstrate the inadequacy of the evidence relied upon by the nonmovant. 21 If the
movant meets this burden, “the burden of production shifts [back again] to the
nonmoving party, who must either (1) rehabilitate the evidence attacked in the moving
party’s papers, (2) produce additional evidence showing the existence of a genuine issue
for trial as provided in Rule 56(e), or (3) submit an affidavit explaining why further
discovery is necessary as provided in Rule 56(f).” 22 “Summary judgment should be
granted if the nonmoving party fails to respond in one or more of these ways, or if, after
the nonmoving party responds, the court determines that the moving party has met its
ultimate burden of persuading the court that there is no genuine issue of material fact for
trial.” 23
“[U]nsubstantiated assertions are not competent summary judgment evidence.
The party opposing summary judgment is required to identify specific evidence in the
record and to articulate the precise manner in which that evidence supports the claim.
‘Rule 56 does not impose upon the district court a duty to sift through the record in search
of evidence to support a party’s opposition to summary judgment.’” 24

Celotex, 477 U.S. at 332–33.
Id.
22 Celotex, 477 U.S. at 332–33, 333 n.3.
23 Id.; see also First National Bank of Arizona, 391 U.S at 289.
24 Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Celotex, 477 U.S. at 324;
Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) and quoting Skotak v. Tenneco Resins, Inc., 953 F.2d
909, 915–16 & n.7 (5th Cir. 1992)).
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ANALYSIS
Defendant Con-way argues Raborn has offered no evidence that Defendant Gustao
Rivera was an employee of Con-way at the time of the accident, or that Mr. Rivera was
acting in the course and scope of his employment at the time of the accident. 25 Federal
Rule of Civil Procedure 56(c)(1) provides, in part:
A party asserting that a fact cannot be or is genuinely disputed must support
the assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the motion
only), admission, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact. 26
As Defendant Con-way correctly identifies, “Because Plaintiff has not cited any materials
in the record or offered competent evidence that Mr. Rivera was a Con-way employee as
of August, 15, 2014 or that he was in the course and scope of his employment on that date,
she has failed to meet her summary judgment burden with respect to either of those
issues.” 27 The Court finds Plaintiff’s allegations that Defendant “cannot deny” Mr. Rivera
was an employee and in the course and scope of his employment during the time of the
accident 28 are clearly insufficient to satisfy her summary judgment burden.

R. Doc. 42, at 1-2.
FED. R. CIV. P. 56(c)(1). See also R. Doc. 25, at 3-4 (explaining the Court’s requirements regarding
dispositive motions).
27 R. Doc. 42, at 2.
28 R. Doc. 40-1, at 2.
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CONCLUSION
IT IS ORDERED that Plaintiff’s motion for partial summary judgment 29 is
DENIED.
New Orleans, Louisiana, this 28th day of November, 2016.
________________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

R. Doc. 40. The Court finds that although it was not directly opposed, the Plaintiff has also failed to
substantiate her claim that Mr. Rivera’s negligence was the sole cause of the accident in question.
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