Ferrell et al v. BGF Global LLC et al
ORDER denying 94 Motion for Reconsideration of its Order of August 18, 2016. Signed by Honorable Timothy D. DeGiusti on 10/30/2017. (mb)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
TRUDY FERRELL, individually and
as personal representative of the
ESTATE OF GREGORY FERRELL,
BGF GLOBAL, LLC, et al.,
Case No. CIV-15-404-D
Plaintiff moves the Court to reconsider its Order of August 18, 2016 [Doc.
No. 64], which granted Defendant BGF Global, LLC’s Motion for Partial Summary
Judgment [Doc. No. 94]. Relying on recent cases from other courts in this district,
and previous decisions from the Oklahoma Supreme Court, namely, Sheffer v.
Carolina Forge Co., LLC, 2013 OK 48, 306 P.3d 544, Plaintiff asks that the Court
revive her negligent entrustment claim against BGF. BGF has filed its response in
opposition [Doc. No. 96]. The matter is fully briefed and at issue.
Plaintiff’s husband was killed when his car collided with a truck driven by
Defendant Lawrence Dildine. At the time of the collision, Dildine was employed as
a truck driver for BGF and BGF stipulated Dildine was acting within the scope of
his employment when the accident occurred. BGF moved for summary judgment on
the grounds that, pursuant to the Oklahoma Supreme Court’s decision in Jordan v.
Cates, 1997 OK 9, 935 P.2d 289, it bore no independent liability to Plaintiff
stemming from the accident. Jordan held that, generally, where an employer
stipulates that any liability would be appropriate under the respondeat superior
doctrine, any other theory for imposing liability on the employer would be
“unnecessary and superfluous.” Id. at 293. Two years after Jordan, the Oklahoma
Supreme Court reiterated this limitation on employer liability, holding that although
“[e]mployers may be held liable for negligence in hiring, supervision or retaining an
employee[,] th[is] theory of recovery is available if vicarious liability is not
established.” N.H. v. Presbyterian Church (U.S.A.), 1999 OK 88, ¶ 20, 998 P.2d 592,
600. Accordingly, the Court granted BGF’s motion and held Plaintiff’s ancillary
claims of liability against BGF (negligent hiring, training, re-training, supervision,
retention, and entrustment) were barred as a matter of law.
Plaintiff contends that intervening decisions from other courts in this district,
and the Oklahoma Supreme Court’s “clarification” of its application of Sheffer to
negligent entrustment claims, require the Court to vacate the dismissal of her
negligent entrustment claim against BGF.
STANDARD OF DECISION
Technically, “[a] motion for reconsideration [is] not recognized by the Federal
Rules of Civil Procedure.” Computerized Thermal Imaging, Inc. v. Bloomberg, L.P.,
312 F.3d 1292, 1296 n. 3 (10th Cir. 2002). The Court construes such motions as filed
pursuant to Rule 59(e)(motions to alter or amend a judgment) or Rule 60(b)(relief
from a final judgment, order, or proceeding), depending on the asserted justification
for, and timing of, the motion. Id.; compare Servants of Paraclete v. Does, 204 F.3d
1005, 1012 (10th Cir. 2000) (“Grounds warranting a motion to reconsider [under
Rule 59(e)] include (1) an intervening change in the controlling law, (2) new
evidence previously unavailable, and (3) the need to correct clear error or prevent
manifest injustice.”), with Fed. R. Civ. P. 60(b) (justifying relief for reasons such as
“mistake, inadvertence, surprise . . . excusable neglect . . . newly discovered evidence
. . . [or] fraud”). A motion to reconsider is thus appropriate where the court has
misapprehended the facts, a party’s position, or the controlling law. Servants of
Paraclete, 204 F.3d at 1012. A motion to reconsider should not be used to revisit
issues already addressed or advance arguments that could have been raised earlier.
Plaintiff’s motion relies on Rule 59(e), which allows for reconsideration upon
an intervening change in controlling law. See Pl. Mot. at 5 (“[T]he instant Motion
should be reviewed under Federal Rule of Civil Procedure 59(e) which allow[s] for
reconsideration of an interlocutory order upon an intervening change in controlling
law.”). With respect to what constitutes an “intervening change in controlling law,”
federal courts (including those in this circuit) have noted the “controlling law” at
issue must be precedential. See, e.g., McNeese Photography, L.L.C. v. Access
Midstream Partners, L.P., No. CIV-14-503-D, 2016 WL 1312630, at *3 (W.D.
Okla. Apr. 4, 2016) (collecting cases); United States ex rel. Carter v. Halliburton
Co., 315 F.R.D. 56, 59 (E.D. Va. 2016) (“[A] decision that is not controlling
precedent is not an intervening change in the controlling law for purposes of a
motion for reconsideration.”).
In Sheffer, the plaintiffs were injured when their tractor-trailer collided with a
vehicle driven by employees of Carolina Forge Company, L.L.C. (“Carolina”). The
plaintiffs sued Carolina under theories of respondeat superior and negligent
entrustment. The trial court granted summary judgment to Carolina, finding the
employees were not acting within the scope of their employment at the time of the
accident and Carolina did not negligently entrust the vehicle to the employees.
However, the Oklahoma Supreme Court reversed, holding that reasonable minds
could have differed on the questions of whether the employees were in the scope of
their employment at the time of the accident and whether Carolina negligently
entrusted the vehicle to them.
Relevant to the instant motion, the Sheffer Court rejected Carolina’s argument
that it could not be held liable for negligent entrustment unless the Plaintiffs first
established the employees were acting within the scope of their employment at the
time of the accident. It stated, “[l]iability for negligent entrustment arises from the
act of entrustment, not the relationship of the parties. … As such, when an employer
provides an employee with a vehicle, whether the negligent act was done during the
course and scope of an employee’s employment is not relevant to the negligent
entrustment analysis.” Sheffer, 306 P.3d at 550 (citation omitted). The Court did not
reference Jordan in reaching its conclusion.
Subsequent to Sheffer, courts in this district, as well as the Northern District
of Oklahoma, have distinguished it from Jordan on the grounds that in Sheffer,
unlike Jordan, the employer did not stipulate that its employees were acting within
the scope of their employment at the time of the tortious act. Indeed, in Isso v.
Western Express, Inc., No. CIV-14-109-R, 2015 WL 4392851 (W.D. Okla. July 15,
2015), after making the foregoing observation, Judge Russell further noted that:
As such, the direct claim for negligent entrustment [in Sheffer] was not
superfluous. If the plaintiffs failed to prove that the employees were
acting within the scope of their employment, they could nevertheless
prevail on a theory of negligent entrustment. The court’s finding that
“whether the negligent act was done during the course and scope of an
employee’s employment is not relevant to the negligent entrustment
analysis,” was therefore not unexpected or inconsistent with Jordan.
Indeed it does not appear that the Supreme Court of Oklahoma was
concerned with the issues raised in Jordan, which was not referenced
in the opinion, likely because it did not apply in light of the dispute
regarding the scope of employment. This Court’s conclusion in this
regard is consistent with the majority of jurisdictions to have considered
Id. at *2. See also Cardenas v. Ori, No. CIV-14-386-R, 2015 WL 2213510, at *3
(W.D. Okla. May 11, 2015) (noting distinction between Jordan and Sheffer, and
dismissing, inter alia, negligent entrustment claim in light of defendant’s stipulation
that employees were acting within scope of employment); Barnes v. Western
Express, Inc., No. CIV-14-574-R, 2015 WL 2131353, at **2-3 (W.D. Okla. May 7,
In Davis-Pashica v. Two Buds Trucking, LLC, No. 16-CV-257-GKF-FHM,
2017 WL 2713332 (N.D. Okla. Jan. 5, 2017), Judge Frizzell of the Northern District
of Oklahoma rejected the plaintiff’s argument that Jordan did not govern negligent
entrustment claims since such claims did not depend on the existence of an
employer-employee relationship. He noted that:
[Plaintiff’s] proposition is certainly true, as such claims are often
brought against an insured owner of a motor vehicle for the alleged
negligent entrustment of that vehicle to an uninsured or underinsured
relative or friend. But as a practical matter, it does not speak to the
prospect for double-recovery in the vicarious liability context. Indeed,
in [Sheffer]—cited by plaintiff—the employer did not stipulate that its
employees were acting within the scope of their employment ... As
such, the direct claim for negligent entrustment was not superfluous. In
other words, in Sheffer, the Oklahoma Supreme Court had no
opportunity to confront Jordan’s application to negligent entrustment
claims at all.
See id. at *2 (internal citations omitted, paraphrasing added).
Still, other courts, citing Sheffer, have declined to dismiss negligent
entrustment claims at either the pleading or summary judgment stages. In Anaya v.
Hutto, No. CIV-16-1030-HE (W.D. Okla.), the plaintiff asserted negligence claims
against the defendants based on respondeat superior. The corporate defendant
stipulated its employee was acting within the scope of employment and moved to
dismiss the remaining negligence claims. Although he dismissed the plaintiff’s
negligent hiring, retention and supervision claims, Judge Heaton declined to dismiss
the plaintiff’s negligent entrustment claim, holding “[i]t is unclear whether Sheffer,
which does not mention Jordan, actually changes the law as to negligent entrustment
or other claims in these circumstances. … In these circumstances, the court
concludes it is premature to dismiss the negligent entrustment claim at the pleading
stage of the case.” See Order, Dec. 5, 2016 at 4 [Doc. No. 28]. But see DavisPashica, 2017 WL 2713332, at *3 (“[T]he fact that a plaintiff may plead claims in
the alternative is immaterial to whether a defendant is subsequently entitled to
judgment as a matter of law on any one particular claim. Jordan speaks to the very
question of when summary judgment is appropriate.”) (citing Avery v. Roadrunner
Transp. Servs., Inc., No. CIV-11-1203-D, 2012 WL 6016899, at *3 (W.D. Okla.
Dec. 4, 2012) (emphasis in original, internal quotations omitted).1
In this regard, Plaintiff also relies on Brantley v. Prince, No. 115,434 (Okla. Dec.
5, 2016), in which the Oklahoma Supreme Court, in a 5-4 decision, cited Sheffer in
issuing a writ of mandamus against the district court “to allow the plaintiff the
Moreover, in Hunter v. N.Y. Marine & General Ins. Co., No. CIV-16-1113W (W.D. Okla.), the plaintiff sued for injuries after colliding with a semi-truck. The
truck driver’s employer stipulated to scope of employment. Judge West granted the
employer’s motion for summary judgment as to all negligence claims except for
negligent entrustment, holding “[the plaintiff’s] allegation in her state court petition
that [defendant] was negligent in entrusting the semi-tractor and trailer rig to [the
driver] gives rise to a separate and independent theory of relief that may be
actionable despite [the defendant’s] stipulation that [the driver] was acting within
the course and scope of his employment at the time of the accident[.]” See Order,
Jan. 18, 2017 at 9 [Doc. No. 22]. In his Order, Judge West cited Judge Heaton’s
aforementioned observation on the uncertainty surrounding Sheffer’s effect on
Jordan, and other decisions from this district finding that notwithstanding any
factual dispute regarding the employer’s knowledge, a stipulation as to vicarious
liability precluded any negligent entrustment claim. See id. at 8-9, n. 10, 11.2
opportunity to amend her petition to assert a claim for negligent entrustment.” Due
to the absence of any supporting rationale for its decision, the Court declines to
consider an unpublished order as an affirmative statement of the Oklahoma Supreme
Court’s position on negligent entrustment claims under Jordan. Compare DavisPashica, 2017 WL 2713332, at *2 n. 2 (declining to consider Court’s denial of writ
of prohibition as affirmative statement on Jordan’s effect). Indeed, the Brantley
court also cited Howell v. James, 1991 OK 47, 818 P.2d 444 for the proposition that
parties should be allowed to plead inconsistent or alternate theories of recovery.
Also, in Warner v. Miller, No. CIV-16-305-HE (W.D. Okla.), Judge Heaton
declined to dispose of the plaintiff’s negligent entrustment claim at the summary
As an initial matter, the decisions from other judges in this district are not
“controlling” for purposes of a motion to reconsider under Rule 59(e). “A decision
of a federal district court judge is not binding precedent in either a different judicial
district, the same judicial district, or even upon the same judge in a different case.”
Camreta v. Greene, 563 U.S. 692, 709 n. 7 (2011) (citation omitted); see also
American Elec. Power Co. v. Connecticut, 564 U.S. 410, 428 (2011); Garcia v.
Tyson Foods, Inc., 534 F.3d 1320, 1329 (10th Cir. 2008). Although the Court
respects its sister courts’ decisions and reasoning, and such decisions are certainly
influential, it remains unpersuaded that these decisions, as well as Sheffer, support
Plaintiff’s proposition that the Oklahoma Supreme Court “clarified” its position on
negligent entrustment claims post-Jordan.
First, Sheffer was in existence when the Court granted BGF’s initial motion
for summary judgment. It therefore cannot constitute an “intervening” change in
judgment stage. Citing the Brantley writ, Judge Heaton observed that the writ’s
issuance “suggested some indication that the Oklahoma Supreme Court views claims
for negligent entrustment as not being necessarily barred by Jordan and a scope
stipulation.” See id., Order, Feb. 10, 2017 at 5 [Doc. No. 39]. In another case, Judge
Heaton granted a plaintiff’s motion to reconsider his previous order granting the
defendant’s motion for judgment on the pleadings and allowed the negligent
entrustment claim to proceed, again citing Brantley’s ostensible effect on Jordan.
See Order in Snyder v. Moore, No. CIV-15-865-HE (W.D. Okla. Mar. 16, 2017)
[Doc. No. 77].
controlling law for purposes of a motion to reconsider.3 Notwithstanding this
chronological distinction, Sheffer is factually distinguishable from the present case.
As noted, in Sheffer, there was a factual dispute over whether the employees were
acting within the scope of employment at the time of the accident. Therefore, under
the facts presented to the court, Jordan was not applicable. The court was
presumably aware of Jordan when it issued its opinion, yet it did not appear
concerned with Sheffer’s effect on Jordan, which, as other courts have noted, was
likely because Jordan did not apply in light of the dispute regarding the scope of
employment. Here, BGF does not dispute that Dildine was acting within the scope
of his employment at the time of the accident in question. Consequently, in the
absence of further guidance from the Oklahoma Supreme Court, the Court finds
Jordan remains applicable to Plaintiff’s negligent entrustment claim.
In short, the Court is not aware of any controlling authority – via Sheffer or
otherwise – that explicitly overrules Jordan’s holding that where an employer
stipulates that an employee is acting within the scope of employment, any other
Moreover, in this regard, Plaintiff notably did not reference Sheffer in response to
BGF’s motion for summary judgment. See generally Pl. Resp. to Mot. for Summ. J.
[Doc. No. 32]. Accordingly, her Motion is subject to dismissal based on the fact it
contains arguments that could have been previously raised. Servants of Paraclete,
204 F.3d at 1012 (a motion to reconsider should not be used to revisit issues already
addressed or advance arguments that could have been raised earlier).
theory for imposing liability on the employer would be unnecessary and superfluous.
Accordingly, Plaintiff’s Motion for Reconsideration [Doc. No. 94] is DENIED as
set forth herein.
IT IS SO ORDERED this 30th day of October 2017.
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