Bazen v. Salem et al

Filing 36

ORDER sua sponte that Plaintiff may file a supplemental brief of ten (10) pages or less, as directed herein, on or before May 10, 2016. If Plaintiff files a supplemental brief, Defendant U.S.A. Logistics may file a response o f ten (10) pages or less, on or before May 20, 2016. IT IS FURTHER ORDERED that a trial in this matter is rescheduled for the undersigned's civil term beginning August 1, 2016. A Final Pretrial Conference will be held on July 26, 2016,( Jury Trial set for 8/1/2016 09:30 AM in 401 West Trade Street, Charlotte, NC 28202 before Magistrate Judge David Keesler.) Signed by Magistrate Judge David Keesler on 4/27/16. (mga) Modified text on 4/27/2016 (mga).

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:14-CV-289-DCK
TAMARA ELAINE BAZEN,
As Administrator of the Estate of
Cathy Erlene Bazen,
Plaintiff,
v.
JONATHAN T. SALEM, and
USA LOGISTICS, INC.,

Defendants.

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ORDER

THIS MATTER IS BEFORE THE COURT sua sponte regarding scheduling concerns
and the status of this case. The parties have consented to the jurisdiction of the undersigned
Magistrate Judge pursuant to 28 U.S.C. § 636(c), and immediate review is appropriate.
“Defendant U.S.A. Logistics, Inc.’s Motion For Partial Summary Judgment Pursuant To
Rule 56” (Document No. 28) was filed on January 29, 2016. Defendant U.S.A. Logistics, Inc.
(“Defendant” or “USA Logistics”) contends that it is entitled to judgment as a matter of law on
Plaintiff’s claims for negligent hiring, and negligent supervision and retention. (Document No.
29). There is no dispute that Plaintiff’s negligence claim against both Defendants is ripe for trial.
In its “…Reply Memorandum In Support Of Its Motion…” Defendant argues that Plaintiff’s
negligence claim will establish what, if any, liability should be imposed on Defendants, and that
Plaintiff cannot proceed with alternative claims against USA Logistics for negligent hiring and/or
negligent supervision and retention. (Document No. 30, pp.3-6) (citing Pracht v. Saga Freight
Logistics, LLC, 3:13-cv-529-RJC-DCK, 2015 WL 5918037 (W.D.N.C. Oct. 9, 2015)).

“Plaintiff’s Sur-Reply…” suggests that the Pracht case is inapplicable here, and argues that
Plaintiff’s claims for negligent hiring and negligent supervision and retention are permissible
“additional direct claims designed to elicit full recovery for the torts committed by Defendant.”
(Document No. 34, p.2). At a hearing on April 21, 2016, the Court specifically asked Plaintiff’s
counsel to identify caselaw showing that a plaintiff can successfully pursue claims for negligence,
negligent hiring, and negligent supervision and retention to a judgment. In response, counsel cited
Boyd v. L.G. DeWitt Trucking Co., Inc., 103 N.C.App. 396 (1991).
The underlying claims in Boyd appear to be willful or wanton negligence by a truck driver
and/or trucking company, and willful or wanton negligent entrustment by the trucking company.
Boyd, 103 N.C.App. 396. The issues raised on appeal to the Court of Appeals of North Carolina
“relate solely to punitive damages.” Id. at 401. Unlike Pracht, the Boyd decision does not directly
address the issue of what claims a plaintiff may bring in a negligence action. Moreover, the claims
in Boyd are similar, but distinguishable from the instant case.
In short, the undersigned is not convinced that Plaintiff has identified adequate authority
to support her argument that the undersigned should reject the Pracht decision issued by the
Honorable Robert J. Conrad, Jr. just a few months ago. The undersigned observes that Pracht
squarely addresses the issue before the Court in this case, discusses the same claims, as well as
negligent entrustment, and appears to rely on persuasive authority from both North Carolina state
courts and other U.S. District Courts within the Fourth Circuit. Pracht, 2015 WL 5918037, at *89.
Under the circumstances, the Court will allow Plaintiff to file a supplemental brief focused
on the legal argument of whether she can pursue all three (3) of her claims as a matter of law. The
Court will be particularly interested in caselaw that indicates that a plaintiff can pursue the same

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claims as presented in this case, against similar defendants, where an individual defendant was
acting within the scope of his/her employment.
IT IS, THEREFORE, ORDERED that Plaintiff may file a supplemental brief of ten (10)
pages or less, as directed herein, on or before May 10, 2016. If Plaintiff files a supplemental brief,
Defendant U.S.A. Logistics may file a response of ten (10) pages or less, on or before May 20,
2016.
IT IS FURTHER ORDERED that a trial in this matter is rescheduled for the
undersigned’s civil term beginning August 1, 2016. A Final Pretrial Conference will be held on
July 26, 2016.
SO ORDERED.

Signed: April 27, 2016

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