Duplantis v. Cochran et al
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)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ROYCE COCHRAN, ET AL.
SECTION “R” (3)
ORDER AND REASONS
Before the Court are Defendant Gulf Coast Pre-Stress Partners, Ltd.’s
motion for summary judgment, 1 plaintiff’s motion to defer summary
judgment, 2 and the parties’ responses to the Court’s order to show cause.3
For the following reasons, the Court grants plaintiff’s motion to defer
summary judgment, and denies Gulf Coast’s motion 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 Jent within 30 days.
This case arises out of a motor vehicle collision in Lafourche Parish,
Louisiana.4 Plaintiff alleges that, on November 8, 2016, she was approaching
R. Doc. 7.
R. Doc. 10.
R. Doc. 13; R. Doc. 14; R. Doc. 15; R. Doc. 16.
R. Doc. 7-2.
the westbound entrance ramp 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 time of the accident,
and that Cochran’s vehicle was owned by Bob Jent.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 Houma, Louisiana. 8
On April 10, 2017, plaintiff filed suit in Louisiana state court against
Gulf Coast, Cochran, and Jent.9 Plaintiff amended her petition on June 8,
2017, to add A & A Services as a defendant. 10 Plaintiff represents that she
served Gulf Coast, Jent, and A & A Services, but has been unable to serve
Cochran.11 Jent has not made an appearance in this matter. On October 20,
2017, Gulf Coast removed this case on the basis of diversity of citizenship. 12
On January 19, 2018, the Court ordered plaintiff to show good cause why her
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.
claims against Cochran and Jent should not be dismissed for failure to
prosecute. 13 Plaintiff timely responded to this order. 14
Gulf Coast now moves for summary judgment as to plaintiff’s claims
against it. 15 Plaintiff moves to defer consideration of summary judgment
under Federal Rule of Civil Procedure 56(d). 16
A. Summary Judgment
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 Human Resources Manager, Noel Monaghan, who
attests that Gulf Coast hired an escort service through an independent
R. Doc. 13.
R. Doc. 14.
R. Doc. 7.
R. Doc. 10.
R. Doc. 7-1 at 5-13.
Id. at 13-15.
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
performed 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
amount of $155 for one car on November 8, 2016.20 Monaghan further
attests that Gulf Coast used A & A Services for escort services before
November 8, 2016, without any issues or problems.21
Plaintiff asks the Court to defer consideration of summary judgment
under Federal Rule of Civil Procedure 56(d).22 Plaintiff attaches an affidavit
from her counsel stating that plaintiff cannot properly oppose summary
judgment until she is permitted to discover facts regarding the relationship
between Gulf Coast and the pilot vehicle operator, Cochran. 23 Rule 56(d)
permits a district court to deny or defer consideration of a motion for
summary judgment, allow time to take discovery, or “issue any other
appropriate order” when “a nonmovant shows by affidavit or declaration
that, for specified reasons, it cannot present facts essential to justify its
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.
The Fifth Circuit has instructed that “[s]uch motions are
broadly favored and should be liberally granted.” Culwell v. City of Fort
Worth, 468 F.3d 868, 871 (5th Cir. 2006).
Gulf Coast argues that summary judgment should not be deferred
because plaintiff has not diligently pursued discovery. 24 See McKay v.
Novartis Pharm. Corp., 751 F.3d 694, 700 (5th Cir. 2014) (explaining that a
requesting party is not entitled to relief if it has not diligently pursued
Gulf Coast notes that plaintiff failed to pursue any discovery
against it in the seven months between the filing of the original petition and
Gulf Coast’s summary judgment motion. 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. 2013) (affirming denial of
Rule 56(d) motion when summary judgment motion was filed over one year
after the lawsuit was filed); Darville v. Turner Indus. Grp., LLC, No. 13-625,
2015 WL 2357248, at *7 (M.D. La. 2015) (finding a lack of due diligence when
plaintiff failed to obtain information over 21 months).
Moreover, plaintiff represents that she did not conduct discovery
against Gulf Coast because she granted Gulf Coast an extension of time to file
R. Doc. 12 at 5-8.
Id. at 8.
responsive pleadings. 26 Gulf Coast filed an answer in state court on October
5, 2017, removed this matter on October 20, 2017, and filed its motion for
summary judgment on November 9, 2017.27 Plaintiff has attached a copy of
the interrogatories and requests for production she intends to serve on Gulf
Coast if her Rule 56(d) motion 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) motion for lack of due diligence.
Culwell, 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 outcome of summary
judgment. 29 See Prospect Capital Corp. v. Mutual of Omaha Bank, 819 F.3d
754, 757 (5th Cir. 2016). Plaintiff seeks to discover information 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
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.
In Louisiana, the existence of an independent contractor relationship
depends on multiple factors, and no single factor is determinative.
Newcomb v. North East Ins. Co., 721 F.2d 1016, 1017 (5th Cir. 1983); see also
Hillman v. Comm-Care, Inc., 805 So. 2d 1157, 1163 (La. 2002); Hickman 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 impliedly
authorizes the independent contractor’s actions.” LeJeune v. Shell Oil Co.,
950 F.2d 267, 270 (5th Cir. 1992) (internal quotation omitted). “Operational
control exists when the principal retains the right to ‘direct supervision over
the step-by-step process of accomplishing the work.’” Dragna v. KLLM
Transport Servs., LLC, 638 F. App’x 314, 318 (5th Cir. 2016) (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
R. Doc. 12 at 11.
services to be performed by A & A” Services and its employees or
subcontractors, and that A & A Services and its employees or subcontractors
were free to use their own methods to perform the contract with Gulf Coast. 32
But these statements 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. 2003) (affirming 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 limited extension of time for discovery. Gulf Coast requests that any
discovery necessary to oppose summary judgment be conducted within 90
days.33 This timeframe is reasonable. The Court grants plaintiff’s Rule 56(d)
motion, and denies Gulf Coast’s motion for summary judgment without
prejudice. Gulf Coast may re-urge its motion after 90 days.
R. Doc. 7-4 at 2.
R. Doc. 12 at 2.
B. Order to Show Cause
Neither Cochran nor Jent has made an appearance or filed a responsive
pleading in this matter. On January 19, 2018, the Court ordered plaintiff to
show cause why Cochran and Jent should not be dismissed for failure to
prosecute. 34 In response to this order, plaintiff has provided proof of service
on Jent.35 Plaintiff has also provided a copy of a letter her counsel mailed to
Jent stating that plaintiff will file a default judgment against him if he does
not file a responsive pleading by February 16, 2018. 36 Plaintiff represents
that she is prepared to pursue default judgment against Jent. 37 The Court
finds that plaintiff should be afforded additional time to prosecute her claim
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 attempted to serve Cochran
by mail, but service was returned as undeliverable each time. 39 Plaintiff
attempted to serve Cochran at the same address provided for Cochran by
R. Doc. 13.
R. Doc. 16-3; R. Doc. 16-4; R. Doc. 16-5.
R. Doc. 14-1.
R. Doc. 14 at 7.
R. Doc. 16-1; R. Doc. 16-2.
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 demonstrated good cause for her failure to serve Cochran,
and grants an additional 90 days to effectuate service. See Fed. R. Civ. P.
For the foregoing reasons, plaintiff’s Rule 56(d) motion is GRANTED.
Plaintiff shall conduct any discovery necessary to oppose Gulf Coast’s motion
for summary judgment within 90 days of this order. Gulf Coast shall
promptly respond to plaintiff’s discovery requests. The Court DENIES Gulf
Coast’s motion for summary judgment, without prejudice to re-urge the
motion 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 Jent within 30 days of this order.
R. Doc. 7-5 at 7; R. Doc. 16-1.
R. Doc. 16 at 2.
Failure to comply with these deadlines will result in dismissal of plaintiff’s
claims against the relevant defendant for failure to prosecute.
New Orleans, Louisiana, this _____ day of March, 2018.
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
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