Ferrell et al v. BGF Global LLC et al

Filing 65

ORDER setting aside 54 Motion for Protective Order and Motion to Quash. Plaintiff may within 14 days file an amended motion to compel if any discovery issues remain pending. Signed by Honorable Timothy D. DeGiusti on 8/19/2016. (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, deceased,
Plaintiff,
v.
BGF GLOBAL, LLC, et al.,
Defendants.

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Case No. CIV-15-404-D

ORDER
Defendant BGF Global, LLC (“BGF”) objects to Magistrate Judge Gary
Purcell’s June 28, 2016 Order denying its Motion for Protective Order and Motion
to Quash [Doc. No. 59]. The matter is fully briefed and at issue.
This action is the result of a collision at the intersection of S.E. 15th and S.
Eastern Ave. in Oklahoma City between Plaintiff’s husband, Gregory Ferrell, and
Defendant Lawrence Dildine in which Mr. Ferrell suffered fatal injuries. At the
time of the collision, Dildine was employed as a truck driver for BGF. Plaintiff
alleged Dildine was traveling at an unsafe speed when he came upon a yellow light
at the intersection, and instead of adhering to federal regulations regarding safety
in the operation and handling of a tractor trailer, chose to honk his horn and enter
the intersection on a red light. Mr. Ferrell entered the intersection on a green light
and collided with Dildine. Plaintiff alleged, among other things, that BGF was

independently liable to Plaintiff for negligent hiring, supervision, training,
retention, and entrustment. BGF admitted to potential liability under the doctrine of
respondeat superior, in that Dildine was acting within the scope of his employment
at the time of the accident.
Plaintiff submitted several discovery requests relating to the aforementioned
negligence allegations. BGF objected to Plaintiff’s requests on the grounds that its
admission of respondeat superior liability rendered Plaintiff’s independent
negligence claims unnecessary and superfluous, as reflected in the Oklahoma
Supreme Court’s decision in Jordan v. Cates, 1997 OK 9, 935 P.2d 289.1 BGF also
objected to any production on the grounds such information was irrelevant because
Plaintiff’s claims failed as a matter of law and were at issue in its pending motion
for summary judgment. Accordingly, BGF filed a Motion for Protective Order,
requesting that the Court “enter an order precluding and/or limiting discovery with
respect to Plaintiff’s allegations of negligent hiring, training, re-training,
supervision, retention and entrustment or otherwise as to claims of liability against
BGF independent of respondeat superior.” Def. Mot. for Protective Order at 1
[Doc. No. 40].
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Jordan states that a negligent-hiring theory imposes no additional liability on the
employer where it stipulates its employee was acting within the scope of his
employment when the harm-dealing incident occurred. Id. at 291. Oklahoma federal
courts have generally extended Jordan to negligence claims. See, e.g., Oliver v. Soto.,
No. CIV-15-1106-R, 2016 WL 815343, at **1-2 (W.D. Okla. Feb. 29, 2016)
(collecting cases).
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The matter was referred to Magistrate Judge Purcell pursuant to 28 U.S.C. §
636(b)(1)(A). Although Judge Purcell agreed with BGF’s contention that Jordan
and its progeny appeared to preclude Plaintiff’s direct liability claims against BGF,
he concluded that since such claims remained at issue, BGF had not shown that
discovery relating to such claims was irrelevant. BGF timely filed its objection.
Subsequent to Judge Purcell’s ruling, the Court granted BGF’s Motion for Partial
Summary Judgment and found Plaintiff’s negligence claims against BGF were
precluded pursuant to Jordan.
Although the Court does not agree with BGF’s contention that the magistrate
judge’s initial ruling was in error, subsequent developments, i.e., the Court’s ruling
on BGF’s summary judgment motion, have rendered the issue moot. The scope of
discovery is set forth in Fed. R. Civ. P. 26(b)(1), which provides that parties may
obtain discovery regarding any non-privileged matter that is relevant to any party’s
claim or defense. The Court finds the discovery at issue does not relate to a claim
or defense in the action, and Defendant’s Motion for Protective Order and Motion
to Quash should be granted.
Accordingly, the Magistrate Judge’s Order denying Defendant’s Motion for
Protective Order and Motion to Quash [Doc. No. 59] is SET ASIDE as set forth
herein. Plaintiff may, within fourteen (14) days of this order, file an amended

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motion to compel if any discovery issues remain pending in light of this order and
the Court’s prior order granting BGF’s Motion for Partial Summary Judgment.
IT IS SO ORDERED this 19th day of August, 2016.

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