Brooks v. Cox Communications of Louisiana, LLC et al

Filing 36

ORDER AND REASONS: IT IS ORDERED that defendant's 16 motion for summary judgment is GRANTED, as set forth in document. IT IS FURTHER ORDERED that the 32 Unopposed Motion to Vacate Scheduling Order and Unopposed Motion to Continue Trial Date is DISMISSED AS MOOT. Signed by Judge Ivan L.R. Lemelle on 12/10/2018. (jls)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CHERYLYN BROOKS

CIVIL ACTION

VERSUS

NO. 18-376

COX COMMUNICATIONS, LLC ET AL.

SECTION "B"(5)

ORDER AND REASONS
Defendants Cox Communications, Inc and Cox Communications
Louisiana, LLC filed a motion for summary judgment in their favor
and against plaintiff. Rec. Doc. 16. Plaintiff timely filed a
response in opposition. Rec. Doc. 19. Defendants then sought, and
were granted, leave to file a reply. Rec. Doc. 28. Defendants also
filed a Motion to Strike two exhibits from plaintiff’s response in
opposition (Rec. Doc. 25), which the Court dismissed and instead
viewed as defendant’s reply to plaintiff’s opposition. Rec. Doc.
30.
For the reasons discussed below,
IT IS ORDERED that defendant’s motion for summary judgment is
GRANTED.
IT IS FURTHER ORDERED that the Unopposed Motion to Vacate
Scheduling Order and Unopposed Motion to Continue Trial Date (Rec.
Doc. 32) is DISMISSED AS MOOT.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff

filed

a

complaint

against

defendants

Cox

Communications Louisiana, LLC, Cox Communications, Inc., National
1

General Insurance Company, and John Doe in Louisiana state court
alleging injuries and damages resulting from a vehicle accident.
Rec. Doc. 16-5. Plaintiff asserts that she was rear-ended by a Cox
Communications

Louisiana,

LLC

and/or

Cox

Communications,

Inc.

(collectively “Cox Communications”) vehicle, while the driver was
on a mission for Cox Communications. Id. at 3. Defendant removed
the case to federal court based on diversity jurisdiction, and
filed an answer denying plaintiff’s claims and asserting that the
driver was not a Cox Communications employee and no Cox vehicle
was involved. Rec. Doc. 3.
Defendants filed the instant motion for summary judgment,
asserting that Cox Communications’ Vehicle Tracking System shows
that no Cox vehicles were involved in the alleged accident and it
was

therefore

possibly

a

third-party

contractor

driving

the

vehicle. Rec. Doc. 16-3 at 2-3. Defendants attached affidavits in
support of their assertion that the tracking data shows no Cox
vehicle or employee matching plaintiff’s description at the scene
of the accident. Rec. Docs. 16-8, 16-9, 16-10. Plaintiff filed a
response in opposition stating that defendants’ assertion that the
driver

was

a

third-party

contractor

rather

than

a

Cox

Communications employee is a genuine dispute of material fact and
therefore summary judgment should not be granted. Rec. Doc. 19 at
2.

Plaintiff

further

asserts

that

the

authentication

of

the

tracking data submitted by defendants is contested evidence. Id.
2

at 3. Plaintiff attached an affidavit that included a picture of
a vehicle matching the one involved in the accident, as well as an
affidavit of plaintiff’s husband relaying a call he made to Cox
Communications. Rec. Docs. 19-2, 19-3. Defendants’ reply asserts
that plaintiff’s husband’s affidavit is inadmissible hearsay and
argues that plaintiff has not established a genuine dispute of
material fact. Rec. Docs. 25, 29.
THE PARTIES’ CONTENTIONS
Defendants

assert

that

they

are

entitled

to

summary

judgement based on their evidence that no Cox Communications
employee or vehicle was involved in the alleged accident and are
therefor. Rec. Doc. 16-3. Defendants state that Cox vehicles are
equipped with a Vehicle Tracking System known as ‘Trimble’, which
records Cox vehicles’ location and the time. Id. at 2. Defendants’
assert that their record of vehicle activity in the Southeast
Region of New Orleans shows no vehicles on Earhart Boulevard on
December 12, 2016, between 2:30 p.m. and 2:35 p.m., when plaintiff
asserts

the

accident

occurred.

Rec.

Doc.

16-8.

Additionally,

defendants state that no damage associated with the December 12,
2016 accident was found or reported on any of its vehicles, and no
Cox employee reported an accident in New Orleans on December 12,
2016. Rec. Doc. 16-3 at 3. Defendants state that the vehicle may
have been a third-party contractor as they employ independent

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third-party contractors who are required to have Cox signage on
their vehicles and who may wear Cox logos on their shirts. Id.
Plaintiff’s response in opposition asserts that there is a
genuine

dispute

of

material

fact,

specifically

whether

the

accident involved a third-party contractor or a Cox Communications
employee, and therefore summary judgment is not appropriate. Rec.
Doc. 19. Plaintiff asserts that defendants have not irrefutably
proven that the driver was an independent contractor, and that the
authentication of the tracking data is contested evidence. Id. at
3. Furthermore, plaintiff asserts that her husband called Cox after
the accident and was informed by a Cox representative that he knew
who the driver was, as supported by the husband’s affidavit. Id.
Defendant asserts that plaintiff’s husband’s affidavit should be
disregarded because it is inadmissible hearsay. Rec. Doc. 25.
LAW AND ANALYSIS
Summary

judgment

is

appropriate

when

“the

pleadings,

depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to judgment as a matter of law.” Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)). A genuine
issue of material fact exists if the evidence would allow a
reasonable jury to return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
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When

the

movant

bears

the

burden

of

proof,

it

must

“demonstrate the absence of a genuine issue of material fact” using
competent summary judgment evidence. Celotex, 477 U.S. at 323. But
“where the non-movant bears the burden of proof at trial, the
movant may merely point to an absence of evidence.” Lindsey v.
Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir. 1994). When the
movant meets its burden, the burden shifts to the non-movant, who
must show by “competent summary judgment evidence” that there is
a genuine issue of material fact. See Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Lindsey, 16
F.3d at 618.
Plaintiff has not presented a genuine dispute of material
facts. A material fact is a fact that might affect the outcome of
the suit. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). In this case, whether defendants can ultimately be held
liable for plaintiff’s injuries depends on whether a Cox employee
was involved in the alleged accident with plaintiff, therefore it
is a material fact. The issue turns on whether there is a genuine
dispute as to this fact. In support of their motion, defendants
assert their vehicle tracking records show that no Cox vehicle was
present at the scene of the accident at the time it took place and
provide: an affidavit of the senior manager of fleet operations
supporting the vehicle tracking data, affidavits of the other Cox
employees who were later in the area and do not match plaintiff’s
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description of the driver, and an affidavit of the field operations
vender manager stating that independent third-party contractors
are required to have Cox signage on their vehicles and that many
also have their employees wear Cox logos on their shirts. Rec.
Doc. 16-8 to 16-11. In response, plaintiff contests defendant’s
characterization of the driver as a third-party contractor rather
than a Cox employee and asserts that the tracking data is contested
evidence. Rec. Doc. 19 at 3.
Plaintiff has not proffered any facts to dispute defendants’
evidence that no Cox employee was involved in the accident or in
support of its assertion that the vehicle “tracking data may be a
result

of

alteration

and/or

manipulation

(possibly)

by

the

defendants.” Rec. Doc. 19 at 3. The Fifth Circuit has held that a
“nonmovant must go beyond the pleadings and designate specific
facts that prove that a genuine issue of material fact exists.”
Peterson v. Brookshire Grocery Co., 2018 WL 5920410, at *2 (5th
Cir. 2018) (citing Hathaway v. Bazany, 507 F.3d 312 (5th Cir.
2007)). Plaintiff only asserts that the individual who rear-ended
her car was wearing a blue shirt with a Cox logo and a had a Cox
decal on his vehicle. Defendants do not dispute these facts, but
instead provide tracking evidence to demonstrate that no Cox
employee or vehicle was at the scene of the accident. Rec. Doc.
16-8. As a potential explanation for why the individual may have
been wearing a blue Cox shirt or may have had a Cox decal on his
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vehicle,

defendants

explain

that

third-party

contractors

are

required to have a Cox decal and many wear Cox logos on their
shirts. Rec. Doc. 16-11. Defendants do not need to “irrefutably
prove” that the individual who struck plaintiff was a third-party
contractor, as plaintiffs assert. Rec. Doc. 19 at 2. Rather, as
stated earlier, “where the non-movant bears the burden of proof at
trial, the movant may merely point to an absence of evidence.”
Lindsey, 16 F.3d at 618. Plaintiff bears the burden of proof at
trial, so it is sufficient for defendants to demonstrate that there
is an absence of evidence provided by plaintiff. Plaintiff’s
unsupported assertions will not be sufficient to overcome a summary
judgment motion. The Fifth Circuit has held that “a party cannot
defeat summary judgment with conclusory allegations, unsupported
assertions, or presentation of only a scintilla of evidence.”
Peterson at *2. Therefore, plaintiff’s unsupported assertion that
the

vehicle

tracking

data

persuasive.

Plaintiff

contradict

defendants’

may

provides

have
no

evidence.

been

manipulated

evidence

to

Additionally,

is

dispute

not
or

plaintiff’s

husband’s affidavit is not considered as it contains hearsay and
is not based on his personal knowledge. As defendants note, Mr.
Brooks attests to what he learned from his wife via a phone call
after the accident. Rec. Doc. 19-3. However, even considering the
alleged statement by the Cox representative in the affidavit
stating that “I know who it is,” this alone does not rise above
7

the “presentation of only a scintilla of evidence.” The evidence
provided by defendants and plaintiff’s lack of evidence would not
allow a reasonable jury to return a verdict for the plaintiff,
therefore summary judgment is proper.
New Orleans, Louisiana, this 10th day of December, 2018

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE

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