Stone Mountain Access Systems, Inc. v. Southern Recycling, L.L.C. et al
Filing
223
Memorandum Opinion and Order Granting in Part and Denying in Part Defendant Southern Recycling, LLC's Motion 161 for Summary Judgment and Denying Plaintiff Stone Mountain Access Systems, Inc.'s Second Motion 165 for Summary Judgment. Signed by District Judge Halil S. Ozerden on March 14, 2018. (BGL)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
STONE MOUNTAIN ACCESS SYSTEMS, INC.
v.
PLAINTIFF
CIVIL NO. 1:16cv194-HSO-RHW
SOUTHERN RECYCLING, LLC,
JOHN DOES 1 THROUGH 30, AND
TRAVELERS PROPERTY CASUALTY
COMPANY OF AMERICA
DEFENDANTS
MEMORANDUM OPINION AND ORDER GRANTING IN PART
AND DENYING IN PART DEFENDANT SOUTHERN
RECYCLING, LLC’S MOTION [161] FOR SUMMARY JUDGMENT
AND DENYING PLAINTIFF STONE MOUNTAIN ACCESS SYSTEMS,
INC.’S SECOND MOTION [165] FOR SUMMARY JUDGMENT
BEFORE THE COURT are Defendant Southern Recycling, LLC’s Motion
[161] for Summary Judgment and Plaintiff Stone Mountain Access Systems, Inc.’s
Second Motion [165] for Summary Judgment. These Motions are fully briefed.
After review of the Motions, the Responses, the related pleadings, the record as a
whole, and relevant legal authority, the Court finds that Defendant Southern
Recycling, LLC’s Motion [161] should be granted in part as to Plaintiff’s negligence
per se claim, and denied in part as to Plaintiff’s claims for negligence, conversion,
and punitive damages/gross negligence. Plaintiff’s Second Motion [165] for Partial
Summary Judgement on the issue of negligence per se should be denied.
I. BACKGROUND
A.
Facts and Relevant Procedural History
This matter arises out of a dispute surrounding Defendant Southern
Recycling, LLC’s (“Southern Recycling”) purchase of metal scaffolding that had
previously been in the inventory of Plaintiff Stone Mountain Access Systems, Inc.
(“Plaintiff”). Compl. [1-2] at 4. Plaintiff Stone Mountain is a corporation “engaged
in the business of leasing metal scaffolding, access systems, and other hardware
and equipment,” Am. Compl. [39] at 2, while Southern Recycling is a company that
“buys scrap metal for the purpose of recycling,” Def. Mem. in Supp. Summ. J. [162]
at 3.
On May 17, 2016, Plaintiff filed a Complaint in the Circuit Court of Harrison
County, Mississippi, First Judicial District, against Defendants Southern Recycling,
Letroy Deandre Brooks (“Brooks”), Darryl Maurice Raymond (“Raymond”), and
John Doe Defendants. Plaintiff alleged that from January 2013 through January
2015, its former employees, Brooks and Raymond, engaged in a scheme with
Southern Recycling wherein Brooks and Raymond would take Plaintiff’s scaffolding
without Plaintiff’s “authority or consent,” and sell it as scrap metal to Southern
Recycling for cash. Id. at 5-6. Plaintiff asserted that through over 50 transactions,
Southern Recycling purchased more than 134,000 pounds of scaffolding “at a
fraction of its then current market value as material usable for its original economic
purpose.” Id. at 6. The Complaint advanced claims for negligence, negligence per
se, negligent receipt of stolen or embezzled property, conversion, and gross
negligence, id. at 7-11, and sought damages in excess of $250,000.00, plus punitive
damages, costs, and attorneys’ fees, id. at 11.
Southern Recycling removed the case to this Court on June 7, 2016, invoking
diversity jurisdiction. Notice of Removal [1] at 1-3. On June 28, 2016, Plaintiff filed
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a Motion [9] to Remand on grounds that diversity jurisdiction was lacking because
Plaintiff as well as Defendants Brooks and Raymond were all citizens of
Mississippi. The Court entered an Order [17] on October 25, 2016, denying remand
and dismissing Brooks and Raymond, finding that they were not proper parties to
defeat diversity jurisdiction because the record reflected that Plaintiff did not
intend to actually pursue claims against them in this case. Order [17] at 1-9.
On December 13, 2016, Plaintiff filed an Amended Complaint [39] advancing
claims against Southern Recycling and Defendant Travelers Property Casualty
Company of America (“Travelers”) for: (1) negligence; (2) negligence per se; (3)
negligent receipt of stolen or embezzled property; (3) conversion; (4) gross
negligence; (5) negligent hiring, supervision, training, control, and retention; (6)
seeking a declaration of coverage by Travelers; and (7) bad faith breach of contract
by Travelers. Am. Compl. [39] at 5-14. The Amended Complaint seeks damages in
excess of $250,000.00, plus punitive damages, costs, and attorneys’ fees. Id. at 14.
By Agreed Order [138] dated July 25, 2017, Travelers was dismissed.
B.
Southern Recycling’s Motion [161] for Summary Judgment
Southern Recycling’s Motion [161], filed on October 27, 2017, contends that
summary judgment is proper because Plaintiff has “presented only speculative and
unsubstantiated evidence of its claimed damages.” Mot. Summ. J. [161] at 1. In the
alternative, Southern Recycling asserts that partial summary judgment is
appropriate on Plaintiff’s claims for conversion, negligence per se, and punitive
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damages/gross negligence, as Plaintiff has produced insufficient evidence to support
these claims. Id.
Plaintiff’s Response [171] maintains that sufficient evidence was produced
and that all claims should be allowed to advance to trial. Resp. in Opp’n [171] at 1.
Plaintiff argues that it has evidence that it suffered damages of at least $18,872.87,
which is the amount Defendant paid as the scrap metal value of Plaintiff’s stolen
scaffolding. Mem. [172] at 2. Plaintiff further asserts that some of its “equipment
was comprised of aluminum tubes, bars, and rods” and that some materials “were
used in the maintenance of railroads, [and] were used to construct communication
and power distribution towers and facilities” all of which fall within the class of
regulated metals set forth in Mississippi’s scrap metal statute, Mississippi Code §
97-17-71. Id. at 3.
C.
Plaintiff’s Second Motion [165] for Partial Summary Judgment
On November 2, 2017, Plaintiff filed its Second Motion [165] for Partial
Summary Judgment on its claim of negligence per se. Mot. [165] at 1-2. Plaintiff
posits that Southern Recycling failed to comply with the mandatory requirements of
Mississippi Code § 97-17-71 by not keeping accurate records and by paying cash for
the scaffolding, which proximately caused Plaintiff’s damages. Mem. [166] at 1-2,
14. Plaintiff maintains that Southern Recycling also failed to adhere to
requirements placed upon scrap metal dealers under “City of Gulfport Ordinance
No. 2560, § 3, 10-16-07.” Id. at 10-12.
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In its Response [182], Southern Recycling contends that because the
Amended Complaint [39] did not allege a violation of the City of Gulfport’s
Ordinance, Plaintiff cannot rely on it to support a negligence per se claim. Mem
[183] at 11-12. Further, Southern Recycling takes the position that the purchases
of scaffolding did not fall within the reporting requirements for “metal property” as
set forth in Mississippi’s scrap metal statute. Id. at 6-17.
II. DISCUSSION
A.
Summary Judgment Standard
“Summary judgment is appropriate when there is no genuine issue as to any
material fact, and the moving party is entitled to judgment as a matter of law.” Cox
v. Wal-Mart Stores E., L.P., 755 F.3d 231, 233 (5th Cir. 2014); see Fed. R. Civ. P.
56(a). In deciding a motion for summary judgment, a court “view[s] the evidence
and draw[s] reasonable inferences in the light most favorable to the nonmoving
party.” Hemphill v. State Farm Mut. Auto. Ins. Co., 805 F.3d 535, 538 (5th Cir.
2015) (quoting Cox, 755 F.3d at 233); Maddox v. Townsend & Sons, Inc., 639 F.3d
214, 216 (5th Cir. 2011). Before it can determine that there is no genuine issue for
trial, a court must be satisfied that “the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party.” Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). If the movant carries this burden,
“the nonmovant must go beyond the pleadings and designate specific facts showing
that there is a genuine issue for trial.” Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994) (en banc); see also Lujan v. National Wildlife Federation, 497
5
U.S. 871, 888 (1990) (the nonmovant must set forth specific facts to contradict the
specific facts set forth by the movant, general averments are not sufficient).
To rebut a properly supported motion for summary judgment, the opposing
party must show, with “significant probative evidence,” that there exists a genuine
issue of material fact. Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir.
2000). “A genuine dispute of material fact means that evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Royal v. CCC&R
Tres Arboles, LLC, 736 F.3d 396, 400 (5th Cir. 2013) (quotation omitted). An actual
controversy exists “when both parties have submitted evidence of contradictory
facts.” Salazar-Limon v. Houston, 826 F.3d 272, 277 (5th Cir. 2016) (quotation
omitted).
B.
Mississippi Code § 97-17-71
The gravamen of this dispute is that over the course of two years, two of
Plaintiff’s former employees removed scaffolding and other miscellaneous materials
and took them to Southern Recycling to sell as scrap metal. Southern Recycling
purchased the scaffolding and materials and remitted payment to the former
employees in cash. Although it is undisputed that Southern Recycling paid in cash,
a genuine issue of material fact does exist as to whether the items were actually
stolen from Plaintiff, and, if so, whether Southern Recycling knew or should have
known they were stolen. Since the Court cannot make a factual determination as to
whether the materials were stolen, it likewise cannot address the parties’ legal
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arguments unless that factual dispute is not material to resolution of the legal
issues advanced in the parties’ competing summary judgment motions.
A review of Mississippi Code § 97-17-71 reflects that a number of its
provisions apply to materials purchased by a scrap dealer whether those materials
were stolen or not. See Metal Mgmt. Miss. v. Barbour, No. 3:08cv431, 2008 WL
3842979, at *1-2 (S.D. Miss. 2008) (finding that this statute requires certain acts to
be performed by scrap metal dealers to deter metal theft).
Specifically, Mississippi Code § 97-17-71(2) requires that a scrap metal
dealer or other purchaser shall, for a period of two years, keep an accurate and
legible record containing the following information for each purchase transaction:
(a) The name, address and age of the person from whom the metal
property is purchased as obtained from the seller’s personal
identification card;
(b) The date and place of each acquisition of the metal property;
(c) The weight, quantity or volume and a general physical description
of the type of metal property, such as wire, tubing, extrusions or
casting, purchased in a purchase transaction;
(d) The amount of consideration given in a purchase transaction for the
metal property;
(e) The vehicle license tag number, state of issue and the make and type
of the vehicle used to deliver the metal property to the purchaser;
(f) If a person other than the seller delivers the metal property to the
purchaser, the name, address and age of the person who delivers the
metal property;
(g) A signed statement from the person receiving consideration in the
purchase transaction stating that he is the rightful owner of the
metal property or is entitled to sell the metal property being sold;
(h) (i) A scanned copy or a photocopy of the personal identification card
of the person receiving consideration in the purchase transaction; or
(ii) If a person other than the seller delivers the metal property to
the purchaser, a scanned copy or a photocopy of the personal
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identification card of the person delivering the metal property to the
purchaser; and
(i) A photograph, videotape or similar likeness of the person receiving
consideration or any person other than the seller who delivers the
metal property to the purchaser in which the person’s facial features
are clearly visible and in which the metal property the person is
selling or delivering is clearly visible.
Such records shall be maintained by the scrap metal dealer or
purchaser for not less than two (2) years from the date of the
purchase transaction, and such records shall be made available to
any law enforcement officer during usual and customary business
hours.
MISS. CODE ANN. § 97-17-71(2).
Additional conditions are placed upon scrap metal dealers when they
purchase “metal property” as defined by § 97-17-71. These additional conditions
include, in relevant part: (1) maintaining the material as separate and identifiable
for a period of not less than three days, § 97-17-71(3); and (2) remitting payment for
the material by check or electronic transfer and not cash, no sooner than three days
following the purchase, § 97-17-71(8).
“Metal property” means materials as defined in this section as railroad
track materials, copper materials and aluminum materials and
electrical, communications or utility brass, metal covers for service
access and entrances to sewers and storm drains, metal bridge pilings,
irrigation wiring and other metal property attached to or part of center
pivots, grain bins, stainless steel sinks, catalytic converters not attached
to a motor vehicle and metal beer kegs. Metal property does not include
ferrous materials not listed in this section.
MISS. CODE ANN.§ 97-17-71(1)(e). “Railroad [track] materials” are further defined
as “any materials, equipment and parts used in the construction, operation,
protection and maintenance of a railroad.” MISS. CODE ANN. § 97-17-71(1)(a).
“Aluminum materials” are “any aluminum cable, bars, rods or tubing of the type
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used to construct utility, communication or broadcasting towers, aluminum utility
wire and aluminum irrigation pipes or tubing.” MISS. CODE ANN. § 97-17-71(1)(c).
B.
Southern Recycling’s Motion [161] for Summary Judgment should be granted
in part as to Plaintiff’s claim for negligence per se, and denied in part as to
the claims for negligence, conversion, and punitive damages/gross negligence.
1.
Plaintiff’s damages claims
Southern Recycling’s Motion [161] seeks summary judgment on the theory
that Plaintiff cannot prove with any certainty the damages it allegedly incurred due
to Southern Recycling’s purchase of scaffolding and other materials from Plaintiff’s
former employees. A review of the record reflects that Southern Recycling itself
valued the scaffolding and other materials it purchased from Plaintiff’s former
employees at $18,872.87 and remitted this amount to them in cash. Therefore, the
Court finds that Plaintiff has produced sufficient competent summary judgment
proof to establish that, at a minimum, it may be able to recover $18,872.87 in actual
damages at trial. Summary judgment should be denied on this issue.
2.
Plaintiff’s negligence claims
In Mississippi, the elements of a negligence claim are: (1) duty owed by the
defendant to the plaintiff; (2) breach of that duty; (3) damages; and (4) proximate
cause. Grisham v. John Q. Long V.F.W. Post, No. 4057, Inc., 519 So. 2d 413, 416
(Miss.1988). Southern Recycling did not address each of these elements in its
Motion, but focused its argument on the damages element and maintained that
summary judgment was appropriate because Plaintiffs had failed to produce any
non-speculative evidence of damages.
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Plaintiff responded with competent probative evidence that damages in the
amount of at least $18,872.87 may be proven at trial. Viewing the evidence in the
light most favorable to Plaintiff as the nonmovant, the Court finds that Plaintiff has
produced sufficient evidence to create a material question of fact regarding whether
it suffered some damages due to Southern Recycling’s alleged conduct. Plaintiff’s
negligence claims should proceed to trial.
3.
Plaintiff’s conversion claims
In Mississippi, “[c]onversion requires an intent to exercise dominion or
control over goods which is inconsistent with the true owner’s right.” Terrell v.
Tschirn, 656 So. 2d 1150, 1153 (Miss. 1995) (quoting Walker v. Brown, 501 So. 2d
358, 361 (Miss.1987)). While the issue of whether Southern Recycling knew that
the materials were allegedly stolen presents a question of fact for trial, the intent to
exercise control over the allegedly stolen materials “does not have to be the intent to
be a wrongdoer.” Id. (citing Walker, 501 So. 2d at 361).
In Terrell, the Mississippi Supreme Court held that
[a] person who purchases or accepts the possession of stolen personal
property is often regarded as liable for the conversion thereof. This rule
is generally applied where, in addition to the act of purchasing the goods
or accepting possession thereof, the defendant appropriates the property
or holds it to his own use, or refuses to comply with a demand of the
owner to surrender possession, or sells, transfers, or disposes of the
goods.
Terrell, 656 So. 2d at 1153 (quoting 18 Am.Jur.2d § 36 at 170). Terrell points out that
good faith is not necessarily a defense.
The intent required is not necessarily a matter of conscious wrongdoing.
It is rather an intent to exercise a dominion or control over the goods
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which is in fact inconsistent with the plaintiff’s rights. A purchaser of
stolen goods or an auctioneer who sells them in the utmost good faith
becomes a converter, since the auctioneer’s acts are an interference with
the control of the property. A mistake of law is no defense.
Id. (quotation omitted).
As the Court has already determined, there exists a relevant issue of
material fact as to whether the items sold to Southern Recycling were stolen.
Viewing the evidence in the light most favorable to Plaintiff, should the finder of
fact determine that at least some of the materials were stolen, it is possible that
Southern Recycling may be found to have converted Plaintiff’s property.
4.
Plaintiff’s negligence per se claim
Under Mississippi law “negligence per se is a subset of negligence in general,
whether it be contributory, comparative or otherwise. Thus a pleading of negligence
. . . would encompass negligence per se.” Snapp v. Harrison, 699 So. 2d 567, 571
(Miss. 1997) (emphasis in original). To support a negligence per se claim premised
upon the violation of a statute or an ordinance, a plaintiff must plead and establish
that: “(1) the defendant breached a statute or ordinance; (2) the plaintiff was within
the class protected by the statute or ordinance; and (3) ‘the violation proximately
caused his injury.’” Faul v. Perlman, 104 So. 3d 148, 156 (Miss. Ct. App. 2012)
(quoting Palmer v. Anderson Infirmary Benevolence Ass’n, 656 So. 2d 790, 796
(Miss. 1995)).
Plaintiff’s Amended Complaint is silent regarding any “negligence per se”
claim for violating the City of Gulfport’s Ordinance No. 2560, § 3, 10-16-07, nor does
the Amended Complaint allege that Plaintiff was within the class protected by the
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Ordinance, or that Plaintiff’s damages were proximately caused by Defendant’s
alleged violation of the Ordinance. This is wholly insufficient to plead a negligence
per se claim based upon the Ordinance and Plaintiff may not now attempt to pursue
such a claim at this late stage of the case. The Court finds that Plaintiff did not
assert a claim for negligence per se under the Gulfport Ordinance and any such
claim should be dismissed. See Benson v. Rather, 211 So. 3d 748, 755-56 (Miss. Ct.
App. 2016) (finding that plaintiff failed to plead a cause of action that an alleged
violation of the International Building Code constituted negligence per se); Faul,
104 So. 2d at 156 (finding that trial court properly dismissed negligence per se
claim as insufficiently pleaded).
The Amended Complaint did set forth a claim for negligence per se premised
upon a violation of Mississippi Code § 97-17-71 and alleged that Plaintiff was within
the class to be protected, that Southern Recycling negligently failed to follow the
requirements of the statute, and that Plaintiff suffered damages as the proximate
result of Southern Recycling’s negligence. Southern Recycling does not seriously
contend that Plaintiff is not within the class of persons to be protected by the
statute, but asserts that the metal materials it purchased were not covered by the
statute and that Plaintiff’s damages are too speculative. The Court has already
addressed the issue of damages, thus Plaintiff’s negligence per se claim hinges on
whether Plaintiff’s property fell within the purview of the scrap metal statute such
that Southern Recycling’s alleged failure to comply with its requirements
proximately caused harm.
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Section 97-17-71(2)(a) – (i) sets forth requirements for all purchases of metal
materials by a scrap dealer such as Southern Recycling. Based upon a review of the
record, Southern Recycling did obtain and maintain information on the purchases of
Plaintiff’s metal materials including date, place of acquisition, and weight of the
materials, and although a few photographs were missing, the descriptions of the
materials purchased at each transaction were recorded in compliance with § 97-1771(2)(b)-(c). See Spreadsheet Ex. “A” [161-1] at 1-2; Sales Tickets, Affidavits and
Photographs [161-2] at 1-176; Spreadsheet “hidden columns revealed” [165-9] at 1.
The parties do not appear to disagree that two of Plaintiff’s former
employees, clad in Plaintiff’s work uniforms, delivered the materials at issue to
Southern Recycling and there is no serious dispute as to the identity of the
individuals from whom Southern Recycling purchased the scaffolding. Thus, the
Court finds that Plaintiffs have not shown a material fact question for trial as to
whether any lapse in Southern Recycling’s record keeping or in failing to obtain the
personal information of these former employees or information about the vehicle
they were driving was a proximate cause of Plaintiff’s alleged damages.1 In other
words, Plaintiffs have not shown that any violation by Southern Recycling of § 9717-71(2)(a)-(i) was the proximate cause of any harm.
Plaintiff correctly asserts that § 97-17-71(9) provides that evidence that a scrap
metal dealer purchasing “metal property” failed to maintain records or to hold the
materials separate for the period of time prescribed, “shall be prima facie evidence
that the person receiving the metal property received it knowing it to be stolen in
violation of Section 97-17-70.” Pl. Mem. in Supp. Summ. J. [166] at 15. However,
this provision does not apply to all purchases of scrap metal, only purchases of
metals that fall within the definition of “metal property” under § 97-17-71(1)(e).
1
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Plaintiff’s negligence per se claim thus hinges on its contention that the
metal scaffolding and materials purchased by Southern Recycling required
Southern Recycling to comply with the additional statutory requirements for
purchases of “metal property” as that term is defined by the statute at § 97-1771(1)(e). The Amended Complaint described Plaintiff’s inventory as “metal
scaffolding, access systems, and other hardware and equipment.” Am. Compl. [39]
at 2. Plaintiff’s Federal Rule of Civil Procedure 30(b)(6) deposition testimony
reflects that the materials purchased by Southern Recycling consisted of generic
industrial scaffolding, as follows:
Q. Fair to say you rent and sell industrial-type equipment?
A. Yes.
Q. Okay. The types of equipment that you sell would be, like, some
examples?
A. Modular scaffolding systems, aluminum[,] steel, shoring systems,
aluminum and steel, motorized suspended scaffolding, motorized and
cable-driven, I should say.
Q. I understand.
A. Those types of equipment is what we deal with.
Rule 30(b)(6) Dep. Pl. [182-1] at 3. Plaintiff further delineated the material in its
inventory as generic that could be utilized in “almost every industry.”
. . . Q. Was any of this material that you have determined to have been
stolen from Stone Mountain and sold to Southern Recycling specifically
designed to be utilized in conjunction with any type of railroad work?
THE WITNESS: Our equipment is used for maintenance in many -almost every industry, pretty much, that requires access to specific
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things that can’t be reached by the ground or by people that are just -ladders or whatever.
So to answer that question, it can be used for any of those things,
communication towers, railroads, and has been in many cases.
Id. at 13.
In order for Plaintiff to invoke the scrap metal statute as a basis for its
negligence per se claim, it must demonstrate that its scaffolding met the statute’s
definition of “metal property,” which is defined as
railroad track materials, copper materials and aluminum materials and
electrical, communications or utility brass, metal covers for service
access and entrances to sewers and storm drains, metal bridge pilings,
irrigation wiring and other metal property attached to or part of center
pivots, grain bins, stainless steel sinks, catalytic converters not attached
to a motor vehicle and metal beer kegs. Metal property does not include
ferrous materials not listed in this section.
MISS. CODE ANN.§ 97-17-71(1)(e). “Railroad [track] materials” are further defined
as “any materials, equipment and parts used in the construction, operation,
protection and maintenance of a railroad.” MISS. CODE ANN. § 97-17-71(1)(a).
“Aluminum materials” are “any aluminum cable, bars, rods or tubing of the type
used to construct utility, communication or broadcasting towers, aluminum utility
wire and aluminum irrigation pipes or tubing.” MISS. CODE ANN. § 97-17-71(1)(c).
Plaintiff has cited no authority, and the Court has located none, that would
support its theory that its generic scaffolding, whether made from aluminum or not
and which can be used in “almost every industry,” falls within the statute’s
definition of railroad track materials, aluminum materials or other categories of
15
“metal property.”2 Even if Plaintiff’s aluminum scaffolding may have been
incidentally leased or utilized in connection with constructing or maintaining a
railroad or a communication tower, to conclude that this would be sufficient to
qualify Plaintiff’s stolen property as “metal property” would, in the Court’s view,
stretch the definitions in the statute beyond their logical limits, and permit nearly
any kind of material whose use may be incidental to construction, operation, or
maintenance of a railroad or communication tower to qualify as metal property,
rendering the statutory limitations imposed by the Mississippi Legislature
meaningless.
The Court finds that Plaintiff has not pointed the Court to relevant legal
authority, nor has it produced sufficient competent summary evidence that would
create a genuine dispute of material fact, that the metal scaffolding or other
materials Southern Recycling purchased from Plaintiff’s former employees fell
within the statutory definition of “metal property” set forth in § 97-17-71(1)(e). For
these reasons, the additional requirements for purchases of “metal property,”
In its Response [171] to Southern Recycling’s Motion for Summary Judgment,
Plaintiff attaches an Affidavit of Scott Billish [171-5], Plaintiff’s President. The
Affidavit attempts to redefine the aluminum material in its inventory to fit within
the parameters of the statutory definition by alleging that its scaffolding equipment
includes “aluminum tubing which is identical to the type and kind of aluminum
tubing used for irrigation pipes and tubing.” Aff. [171-5] at 1. In the Court’s view,
this attempted qualification is not sufficient to show that Plaintiff’s scaffolding
would meet the statutory definition. Moreover, it is inconsistent with Plaintiff’s
corporate deposition testimony. In the Fifth Circuit the law is clear that a party
cannot “manufacture a question of fact on summary judgment by relying on an
affidavit which contradicts the nonmovant’s prior sworn testimony without
explanation.” Doe ex rel. Doe v. Dallas Indep. Sch. Dist., 220 F.3d 380, 386 (5th Cir.
2000).
2
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including maintaining the material as separate and identifiable for a period of not
less than three days under § 97-17-71(3), and remitting payment for the material by
check or electronic transfer and not cash no sooner than three days following the
purchase under § 97-17-71(8), were not triggered.
Viewing the evidence in the light most favorable to Plaintiff, the Court finds
that it has produced insufficient evidence or legal authority tending to show that its
damages were due to Southern Recycling’s violation of the scrap metal statute.
Plaintiff’s negligence per se claim should be dismissed.
5.
Plaintiff’s claims for punitive damages/gross negligence
The Court finds that because conversion is an intentional tort, Southern
Recycling’s request that Plaintiff’s claim for punitive damages/gross negligence be
dismissed must be denied at this time, without prejudice to Southern Recycling’s
right to reurge its position at trial in the event the Court reaches the issue of
punitive damages. See also January 18, 2018, TEXT ONLY ORDER denying
without prejudice Plaintiff’s Motion [167] to Strike.
C.
Plaintiff’s Second Motion [65] for Partial Summary Judgment as to
negligence per se should be denied.
For the same reasons the Court has concluded that Plaintiff’s negligence per
se claim against Southern Recycling should be dismissed, Plaintiff’s Second Motion
[65] for Partial Summary Judgment as to the issue of negligence per se is not well
taken and should be denied.
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III. CONCLUSION
To the extent the Court has not addressed any of the parties’ arguments, it
has considered them and determined that they would not alter the result.
Defendant Southern Recycling, LLC’s Motion [161] for Summary Judgment will be
granted in part as to Plaintiff’s negligence per se claim, and denied as to Plaintiff’s
remaining claims. Plaintiff Stone Mountain Access Systems, Inc.’s Second Motion
[165] for Partial Summary Judgment will be denied.
IT IS, THEREFORE, ORDERED AND ADJUDGED that Defendant
Southern Recycling, LLC’s Motion [161] for Summary Judgment is GRANTED IN
PART as to Plaintiff Stone Mountain Access Systems, Inc.’s claim for negligence
per se, and DENIED IN PART as to Plaintiff’s remaining claims.
IT IS, FURTHER, ORDERED AND ADJUDGED that Plaintiff Stone
Mountain Access Systems, Inc.’s negligence per se claim against Defendant
Southern Recycling, LLC is DISMISSED WITH PREJUDICE.
IT IS, FURTHER, ORDERED AND ADJUDGED that Plaintiff Stone
Mountain Access Systems, Inc.’s Second Motion [165] for Partial Summary
Judgment is DENIED.
SO ORDERED AND ADJUDGED this the 14th day of March, 2018.
s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE
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