Tatum v. Kelley et al

Filing 104

ORDER denying 85 Motion for Partial Summary Judgment. Signed by District Judge Carlton W. Reeves on 3/20/2012. (AC)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
KIM TATUM

PLAINTIFF

v.

CAUSE NO. 3:11-CV-117-CWR-FKB

JAMES KELLEY, JR.; DTS
TRANSPORTATION, INC.; JOHN DOES
1-10; JOHN DOE ENTITIES 1-10

DEFENDANTS

ORDER
Pending before the Court is the motion of defendants James Kelley, Jr. and DTS
Transportation, Inc. for summary judgment on plaintiff Kim Tatum’s punitive damages claim.
Docket No. 85. Tatum has responded in opposition, Docket No. 88, the defendants have replied,
Docket No. 90, and the matter is ready for review. The motion will be denied.
I.

Factual and Procedural History
On January 6, 2010, in Magee, Mississippi, the tractor-trailer driven by James Kelley, Jr. hit

Kim Tatum’s vehicle while Tatum was stopped at a stop sign. Docket Nos. 85, at 3; 85-6. It is
undisputed that Kelley turned left too sharply and struck the driver’s side rear corner of Tatum’s
vehicle. Docket Nos. 17, at 2; 85-6 at 2 & 4.
Tatum, a resident of Mississippi, originally filed suit in the Circuit Court of Simpson County.
Docket No. 1-2. She alleged that Kelley’s grossly negligent and reckless conduct had caused
permanent injuries, and sought damages of $500,000. Id. at 2-4. Kelley, a resident of Texas,
removed the matter here. Docket No. 1.
The complaint was subsequently amended to add Kelley’s employer, DTS Transportation,
Inc. (“DTS”), as a defendant. Docket No. 17. DTS admitted that Kelley was driving in the course
and scope of his employment, such that DTS is vicariously liable for Kelley’s negligence. Docket
No. 54. Kelley and DTS (together, “the defendants”) stipulated to liability. Id.
On November 3, 2011, the defendants filed the present motion for summary judgment on
punitive damages. They argue that Tatum has no evidence to support a jury finding of malice, gross
neglect, or reckless disregard for safety. Docket No. 85, at 2-3. With Kelley having admitted his
negligence and DTS alleged to have committed nothing more than vicarious liability, they argue that
punitive damages in a simple motor vehicle accident such as this are precluded as a matter of law.

Id. at 4. “The conduct in the previous [cited] cases included cars traveling in excess of the speed
limit, hitting parked vehicles, making improper U-turns, passing school buses, and striking children.
Yet a claim for punitive damages was rejected in each of them.” Docket No. 86, at 6 (citations
omitted).
The defendants also claim that Tatum is procedurally barred from seeking punitive damages.
Docket No. 85, at 1-2. Tatum’s May 3, 2011 discovery responses disclaimed punitive damages “at
this time,” but her November 2, 2011 supplemental responses sought to “reserve her right to seek
punitive damages.” Docket Nos. 85-4; 85-5. The defendants want to enforce her May 3 response.
Tatum responds that the motion is premature because discovery is ongoing, and argues that
the defendants have “refused to provide the Plaintiff with the discovery needed to determine whether
punitive damages are warranted in this case.” Docket No. 88, at 1. She attaches DTS’s discovery
responses that, among other things, objected to interrogatories asking whether Kelley had ever
before been cited for vehicle infractions, partially objected to whether he had ever been tested for
drugs or alcohol, and objected to producing documents regarding other accidents in which Kelley
may have been involved. Docket Nos. 88-1, at 1-2; 88-2, at 6; 88-3, at 2-4.
On the law, Tatum contends that “no decision on punitive damages should be made until the
jury first determines the question of compensatory damages.” Docket No. 88, at 2. She asserts that
Mississippi law “dictates that a punitive damages claim may not be dismissed and the court is
required to submit a punitive damages claim to the jury after a compensatory verdict is rendered.
Failure to do so is reversible error.” Docket No. 89, at 2 (citing Bradfield v. Schwartz, 936 So. 2d
931 (Miss. 2006)). She also attempts to distinguish the defendants’ cases by arguing that those
previous courts ruled only after the close of discovery and a plaintiff’s verdict at trial. Id. at 4.
The defendants’ rebuttal brief points to a number of cases from this Court granting summary
judgment on punitive damages. Docket No. 90, at 2. In particular, they cite Lee v. Harold David
Story, Inc., No. 3:09-cv-696, 2011 WL 3047500 (S.D. Miss. July 25, 2011) (Lee, J.); Barnett v.
Skelton Truck Lines, Ltd., No. 2:05-cv-2047, 2006 WL 2056632 (S.D. Miss. July 21, 2006) (Starrett,
J.); and Francois v. Colonial Freight Sys., Inc., No. 3:06-cv-434, 2007 WL 4459073 (S.D. Miss.
Dec. 14, 2007) (Barbour, J.). They reiterate that the plaintiff lacks evidence warranting punitive
damages. Id. at 3. Finally, they argue that the plaintiff was obliged, but failed, to compel their
discovery responses that would support a claim for punitive damages. Id. at 4.
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II.

Discussion
A.

Law

Summary judgment is appropriate when “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.” Fed. R. Civ. P.
56(a). A party seeking to avoid summary judgment must identify admissible evidence in the record
showing a fact dispute. Id. at 56(c)(1)-(2). A party that “cannot present facts essential to justify its
opposition,” though, may receive more time to make its case. Id. at 56(d). The Court must “view
the evidence and draw reasonable inferences in the light most favorable to the non-movant.”
Maddox v. Townsend and Sons, Inc., 639 F.3d 214, 216 (5th Cir. 2011) (citation omitted).
Because this case is proceeding in diversity, the applicable substantive law is that of the
forum state, Mississippi. Capital City Ins. Co. v. Hurst, 632 F.3d 898, 902 (5th Cir. 2011); Smith
v. Goodyear Tire & Rubber Co., 495 F.3d 224, 228 (5th Cir. 2007). State law is determined by
looking to the decisions of the state’s highest court. St. Paul Fire and Marine Ins. Co. v.
Convalescent Services, Inc., 193 F.3d 340, 342 (5th Cir. 1999).
In Mississippi, punitive damages may be awarded “as punishment for the defendant’s
wrongdoings so that others may be deterred from similar offenses.” Gordon v. National States Ins.
Co., 851 So. 2d 363, 366 (Miss. 2003) (citation omitted). “Mississippi law does not favor punitive
damages; they are considered an extraordinary remedy and are allowed with caution and within
narrow limits.” Warren v. Derivaux, 996 So. 2d 729, 738 (Miss. 2008) (quotation marks and citation
omitted). The state legislature established the following standard for when a plaintiff may receive
punitive damages:
Punitive damages may not be awarded if the claimant does not prove by clear and
convincing evidence that the defendant against whom punitive damages are sought
acted with actual malice, gross negligence which evidences a willful, wanton or
reckless disregard for the safety of others, or committed actual fraud.
Miss. Code § 11-1-65(1)(a).
In considering whether punitive damages are appropriate to place before the jury, a trial court
must first examine “[t]he totality of the circumstances and the aggregate conduct of the defendant.”
Bradfield, 936 So. 2d at 937 (quotation marks and citations omitted). The question is whether “a
reasonable, hypothetical trier of fact could find either malice[,] gross neglect/reckless disregard,”

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or fraud. Doe ex rel. Doe v. Salvation Army, 835 So. 2d 76, 81 (Miss. 2003) (citation omitted).
B.

Analysis

Tatum’s interpretation of the law of punitive damages has been rejected. Trial courts may
grant summary judgment on punitive damages claims when the evidence is so lacking that no
reasonable jury could impose punitive damages. E.g., Harold David Story, 2011 WL 3047500, at
*2 n.3. In addition, here, it is not certain that punitive damages may be assessed against DTS,
because arguably none were sought against DTS in the amended complaint. See id. at *2 & n.2;
Docket No. 17, at 3-4; Miss. Code § 11-1-65(1)(a). On the other hand, DTS’ Answer and Defenses
plainly thought that they were sought, acknowledging that “Plaintiff has made separate claims
against Defendant [DTS] for compensatory and punitive damages.” Docket No. 22, at 7. But see
Docket No. 85, at 4 (“there are no direct allegations of wrongdoing against DTS”).
A review of the record suggests that it is not necessary to resolve these issues today. After
the briefing on this motion was completed, Tatum moved to compel discovery responses from the
defendants that, at least in part, sought to resolve her complaints about not receiving the evidence
she desired to attempt to prove up punitive damages. Docket No. 91. The Magistrate Judge recently
granted her motion in part. Docket No. 95.
The parties have since exchanged some discovery requests and responses. See Docket Nos.
97-98; 100-01; 103. With those requests outstanding, they have not filed any supplemental briefs
on this motion for summary judgment, and therefore it remains to be seen whether there is any
reckless or grossly negligent behavior that could support punitive damages. The motion will be
denied until all of the evidence has been discovered and presented.
The Court earlier cited Rule 56(d)’s authority for district courts to defer or deny summary
judgment where the available evidence is lacking but forthcoming. To be sure, Tatum has not
sufficiently invoked that provision of the Rule: her response opposing the defendants’ motion lacked
the required affidavit or declaration containing “specified reasons” why she needed more time. Fed.
R. Civ. P. 56(d). Nevertheless, the Order of an impartial Magistrate Judge compelling additional
discovery on the issues in dispute is a more than ample substitute for a party’s own affidavit or
declaration.
The defendants’ procedural argument for summary judgment will also be denied. Assuming
that Tatum had completely disclaimed a desire to seek punitive damages for a six-month period in
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the middle of this lawsuit, her original complaint, her amended complaint, and her supplemental
discovery responses all plainly sought punitive damages. Docket Nos. 1-2; 17; 85-5. The
defendants’ various answers confirm that they were on notice of the claim from the outset of this
litigation. See Docket Nos. 4, at 1 and 4-6; 21, at 1 and 4-7; 22, at 1 and 4-7. In addition, the
defendants have identified no actual prejudice that they suffered as a result of Tatum’s first
discovery responses.
The Court will consider all the evidence before determining whether an instruction on
punitive damages is warranted, and hereby denies the motion for summary judgment without
prejudice until after all the evidence has been presented and received.
“Of course, the denial of summary judgment on the issue of punitive damages does not
foreclose the possibility that the Court might ultimately refuse to submit the question to a jury.”
Welch v. Loftus, 776 F. Supp. 2d 222, 227 (S.D. Miss. 2011) (citation omitted); Gaddis v. Hegler,
No. 3:10-cv-249, 2011 WL 2111801, *5 (S.D. Miss. May 26, 2011); see Graves ex rel. W.A.G. v.
Toyota Motor Corp., No. 2:09-cv-169, 2011 WL 4625606, *4-6 (S.D. Miss. Oct. 3, 2011) (“[T]he
court is doubtful that the issue will ultimately go to the jury, but that decision is best left until after
the court has heard how the evidence plays out at trial.”) (denying summary judgment and setting
forth Mississippi’s statutory procedure for submitting punitive damages to a jury); Thompson v.
Remington Arms Co., No. 5:09-cv-124, 2010 WL 3737869, *5 (S.D. Miss. Sept. 17, 2010).
SO ORDERED, this the 20th day of March, 2012.
s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE

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