Johnson v. Bay Villa Nursing Home

Filing 4

MEMORANDUM OPINION AND ORDER granting 3 MOTION to Dismiss or, Alternatively, Motion for Summary Judgment (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
EARNEST JOHNSON,

§
§

Plaintiff,

§
§
§

v.

CIVIL ACTION NO. G-14-0036l

§

BAY VILLA NURSING HOME,

§
§

Defendant.

§

MEMORANDUM OPINION AND ORDER

Plaintiff,
defendant,
hiring.l
or,

Earnest

brings

Bay Villa Nursing Home,

this

action

against

for negligence and negligent

Pending before the court is Defendant's Motion to Dismiss

Alternatively,

No.3) .

Johnson,

Motion

for

Summary

Judgment

(Docket

Entry

For the reasons explained below, defendant's motion for

summary judgment will be granted.

I.

Factual and Procedural Background

Plaintiff alleges that on or about July 7,
hemi-paraplegic

patient

at

Bay

Villa

Nursing

2012,
Home,

he was a
where

he

suffered injury in a fall when a staff member improperly placed him
in a standing position, bare foot on a wet shower floor without any
physical support or supportive device prior to transferring him to
a shower chair.

Plaintiff alleges that the fall caused him to

IPlaintiff's Original Petition, Exhibit 2 at p. 3 attached to
Notice of Removal, Docket Entry No.1.

suffer a fractured left hip that required surgery to repair,

as

well as great physical and mental pain, suffering, and anguish that
in all probability will continue in the future.

2

On July 7, 2014, plaintiff filed suit in Texas state court
(Cause

No.

14-H-0318)

in

Matagorda County, Texas. 3
claims

against

his

the

23rd

Judicial

District

Court

of

Plaintiff's state court Petition asserts

health

care

provider

for

negligence

and

negligent hiring.4
On November 12,

2014,

defendant

filed a

Notice of Removal

(Docket Entry No.1), pursuant to which this action was transferred
from state to federal court.

The Notice of Removal asserts that

"[t]his removal is proper and authorized because there is complete
diversity of citizenship between the parties, which confers this
Court jurisdiction as provided under 28 U.S.C.
U.S.C. § 1332(a) ."5

§

1441(b)

and 28

Defendant also asserts that "[t]he amount in

controversy exceeds $75,000, exclusive of interest and costS."6
On November 19, 2014, defendant filed the pending motion to
dismiss

or,

al ternati vely,

Entry No.3).

motion

for

summary

judgment

(Docket

Referenced in defendant's motion are two exhibits

2Id. at 2.
3Id. at 1.
4Id. at 3.

5Notice of Removal, Docket Entry No.1, p. 2.
6Id.

-2-

that

evidence

matters

outside

of

the

pleadings.

Because

defendant's motion relies on materials outside of the pleadings,
Rule 12(b) directs the court to treat the motion as one for summary
judgment and to dispose of it under Rule 56.
12 (b) .
1281,

See Fed. R. Civ. P.

See also Washington v. Allstate Insurance Co.,
1283-1284

pleadings

are

(5th

Cir.

1990)

("Where

considered by the district

matters
court

901 F.2d

outside

on a

the

motion to

dismiss, Rule 12(b) requires the court to treat the motion as one
for summary judgment and to dispose of it as required by Rule 56.") .

II. Standard of Review
Summary judgment is authorized if the movant establishes that
there is no genuine dispute about any material fact and the law
entitles it to judgment.
106 S.Ct.

at 2552.

Fed.R.Civ.P. 56(c).

See also Celotex,

An issue of material fact

is genuine if a

reasonable jury could return a verdict for the nonmovant.
v. Liberty Lobby,

106 S.Ct. 2505, 2510

(1986).

Anderson

In reviewing the

evidence, the court must draw all reasonable inferences in favor of
the

nonmoving

party,

and

weighing of the evidence.

avoid

credibility

determinations

and

Reeves v. Sanderson Plumbing Products,

Inc., 120 S.Ct. 2097, 2110 (2000).

The court must also disregard

all evidence favorable to the moving party that the jury is not
required to believe.

Id.

-3-

III. Defendant's Motion for Summary Judgment
Defendant moves for summary judgment based on want of proper
and timely service of process. 7

Defendant argues that any claims

plaintiff is attempting to assert based on the events of July 7,
2012,

should

be

dismissed

as

barred

by

limitations

because

plaintiff did not file his original petition until July 7,
the last day that he could timely file his lawsuit,
plaintiff did not

attempt

to

serve

defendant

until

2014,

and because
over three

months later, on October 8, 2014. 8 Defendant has attached evidence
that it argues plainly establishes that the plaintiff has failed to
exercise diligence in procuring service of citation.

A.

Applicable Law
In

period,

order
a

to

Texas

bring

suit

plaintiff

wi thin
must

the

both

applicable

limitations

file

within

suit

the

limitations period and use due diligence to serve the defendant
with process.
(per curiam)
(Tex. 1975)
175,

179

Gant v.

DeLeon, 786 S.W. 2d 259, 260

( Tex. 1990)

(citing Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 890
(per curiam)).

(Tex.

2009);

See also Ashley v. Hawkins, 293 S.W.3d

Carter v.

MacFayden,

93

S.W.3d 307,

313

7Defendant's Motion for Summary Judgment, Docket Entry No.3,
pp. 8-10.
8Id. at 9 (Defendant asserts that "[s]ervice was first
attempted on Defendant via certified mail purportedly sent on
October 8, 2014. (See 'Exhibit A') ."
-4-

(Tex.App.-Houston [14th Dist.] 2002, pet. denied].

If a plaintiff

files suit within the limitations period, but serves the defendant
after

the

limitations period has

expired,

the

date

of

service

relates back to the date of filing only if the plaintiff exercises
due diligence in obtaining service.
See also Belleza-Gonzalez v.

Gant, 786 S.W.2d at 259-260.

Villa,

57

S.W.3d 8,11

(Tex.App.

-Houston [14th Dist.] 2001, no pet.).
When a defendant asserts the defense of limitations and shows
that the plaintiff failed to timely serve the defendant, the burden
shifts

to

the

Jacinto Agency,

plaintiff to

explain the

delay.

Inc., 800 S.W.2d 826, 830

Murray v.

(Tex. 1990).

Proulx v. Wells, 235 S.W.3d 213, 215 (Tex. 2007).

San

See also

"Thus, it is the

plaintiff's burden to present evidence regarding the efforts that
were made to serve the defendant,

and to explain every lapse in

effort or period of delay." Proulx, 235 S.W.3d at 216 (citing Gant,
786 S.W.2d at 260).
Once the plaintiff presents an explanation, the burden shifts
back to the defendant to show why that explanation is insufficient
as a matter of law.
at 216.

Murray, 800 S.W.2d at 830;

If the plaintiff shows diligence, then the defendant must

show why that exercise was

insufficient to

service back to the date of filing.
11.

Proulx, 235 S.W.3d

See also

Carter,

relate the date of

Belleza-Gonzalez, 57 S.W.3d at

93 S.W.3d at

313.

A plaintiff is not

required to use the highest degree of diligence to procure service,

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but is required to use the degree of diligence that "an ordinarily
prudent

person

circumstances."

would

have

used

Belleza-Gonzalez,

under

the

same

57 S.W.3d at 12.

the question of diligence is a question of fact,

or

similar

"Generally,

'but if no excuse

is offered for a delay in the service of citation, or if the lapse
of time and the plaintiff's acts are such as conclusively negate
diligence, a lack of diligence will be found as a matter of law.'"
Belleza-Gonzalez, 57 S.W.3d at 12.
("In some instances,

See Proulx, 235 S.W.3d at 216

the plaintiff's explanation may be legally

improper to raise the diligence issue and the defendant will bear
no burden at all.").

B.

Application of the Law to the Facts
Plaintiff has alleged state law claims for injuries arising

from negligence and negligent hiring of his health care provider.
These claims are both subject to a two-year statute of limitations.
See Tex. Civ.

Prac.

& Rem Code § 16.003(a)

(two-year limitations

period for personal injury) and § 74.251(a)

(two-year limitations

period for health care liability claims).

Defendant asserts that

pursuant to Texas's two year limitations period, July 7, 2014, was
the last day for plaintiff to file suit for claims arising from
events that occurred on July 7,

2012.

See Price v.

Antonio, Texas, 431 F.3d 890, 893 (5th Cir. 2005)
§

City of San

(recognizing that

16.003 requires a claim to be brought no later than the same

-6-

calendar

day

action).

Defendant argues that even though plaintiff timely filed

his

two

years

following

petition wi thin the

two

year

the

accrual

statute

of

of

the

cause

limitations,

of

this

action is nevertheless barred by limitations because plaintiff did
not exercise diligence in serving the defendant.

9

Defendant argues

that
"[o]nce the defendant establishes that the plaintiff did
not serve the complaint within the two-year limitations
period, the burden shifts to the plaintiff to produce
summary judgment evidence raising a fact question as to
whether the plaintiff used due diligence in attempting to
procure timely service on the defendant. Hlo
Plaintiff filed his suit on the two-year
anniversary of his alleged personal injury; i.e., on the
last day he could timely file his lawsuit.
Service was
first
attempted
on
Defendant
via
certified mail
purportedly sent on October 8, 2014.
(See Exhibit "AH).
Even assuming this service was proper, the burden shifts
to Plaintiff to establish that he exercised due diligence
in the intervening three months in effectuating service.
He cannot establish this.ll
Exhibit

A to

defendant's

motion

includes

both

a

copy

of

the

Citation that Matagorda County, Texas, issued in this case on July
7, 2012, and a copy of a cover letter dated October 8, 2014, along
with

a

copy

of

Officer's Return,

the

Plaintiff's

Petition,

Citation,

and mailing label addressed to defendant post-

marked October 3, 2014.

Asserting that "[d]efendant has maintained

9Id. at 9-10.
IOId.

Original

at 9.

llId.

-7-

a registered agent on file with both the Texas Secretary of State
(See

and the Texas State Comptroller since 2004

'Exhibit

B'),"12 defendant argues that "[iJn light of this easily obtainable
information, Plaintiff's multiple month delay cannot be explained
away. "13
first

Exhibit B to defendant's motion consists of two pages: the

page shows defendant's

franchise

account

status with the

Office of the Comptroller for the State of Texas, and the second
page shows that defendant has a registered agent on file with the
Texas Secretary of State.
Almost

four

months

have

passed

since

defendant

filed

the

pending motion to dismiss or,

alternatively,

motion for summary

judgment on November 19, 2014.

More than three months have passed

since plaintiff's response to the pending motion was due twenty
days later.

But plaintiff has not responded to defendant's motion.

Local Rule 7.3 provides that: "Opposed motions will be submitted to
the judge twenty days from filing without notice from the clerk and
without appearance by counsel."

S.D. Tex. R.

7.3

(2000).

Rule 7.4 provides:
Failure to respond will be taken as a representation of
no opposition.
Responses to motions
A.
B.
C.

Must be filed by the submission day;
Must be written;
Must include or be accompanied by authority; and

12Id.

-8-

Local

D.

Must be accompanied by a
denying the relief sought.

S.D. Tex. R.

7.4

court

plaintiff's

takes

(2000).

separate

form order

In accordance with Local Rule 7.4, the
failure

to

respond

to

the

defendant's

motion for summary judgment as a representation of no opposition to
defendant's summary judgment evidence.
Although a district court may not grant summary judgment by
default simply because there is no opposition to the motion,

the

court may accept as undisputed the movant's version of the facts
and grant a motion for summary judgment when the movant has made a
prima facie showing of entitlement to summary judgment.

See John

v. State of Louisiana (Board of Trustees for the State Colleges and
Universities), 757 F.2d 698, 708 (5th Cir. 1985)

(when the movant's

summary judgment evidence establishes its right to judgment as a
matter of law,
judgment

absent

the district court is entitled to grant summary
unusual

circumstances);

and

Eversley

v.

Mbank

Dallas, 843 F.2d 172, 174 (5th Cir. 1988) (when the nonmovant fails
to respond to a motion for summary judgment, the court does not err
by granting the motion when the movant's submittals make a prima
facie showing of entitlement to judgment as a matter of law).
Plaintiff offers no reason for the nearly three month delay
between July 7, 2014, and October 8, 2013, during which he took no
action

to

defendant.

insure

that

service

was

properly

effected

on

the

The undisputed facts in this case are similar to those

in Boyattia v. Hinojosa,

18 S.W.3d 729,
-9-

732-734

(Tex.App.-Dallas

2000, pet.
before

denied),

the

failed to

statute

where the plaintiff filed a lawsuit the day
of

limitations

expired,

forward the citation for

the

service,

clerk's

office

and the plaintiff

allowed a period of time to lapse before taking any action to
insure that the defendants were properly served.

In Boyattia the

court held that the clerk's failure to issue citation within three
months was unreasonable and that the plaintiff's failure to take
any actions to effect service during the clerk's three month delay
constituted a lack of diligence as a matter of law.

Id. at 734

(unexplained three-month delay is lack of diligence as a matter of
law) .
In determining the issue of diligence, courts look to whether
a party's actions manifest a "bona fide intention" to have process
served.

Boyattia,

18

S.W.3d at

732-734.

A party who wholly

ignores his duty to have the defendant served during a lengthy
period of time does not manifest a bona fide intention to have
process served.

Therefore,

the court concludes that

the

unexplained failure of plaintiff's counsel to take any action to
effect service on the defendant

from July 7,

2014,

to October

8, 2014, constitutes a lack of diligence as a matter of law.
(concluding

that

unexplained

three

month

period

constituted lack of diligence as a matter of law).

of

Id.
delay

Accordingly,

the court concludes that the claims that plaintiff has asserted for
negligence and negligent hiring are barred by limitations because

-10-

even assuming without deciding that service by mail was proper, the
date that service was effected on the defendant does not relate
back to the date plaintiff's original petition was filed,

i.e.,

July 7, 2014.

IV. Conclusions and Order

For the reasons explained above the court concludes:

(1) that

Defendant's Motion to Dismiss or, Alternatively, Motion for Summary
Judgment

(Docket Entry No.3), should be treated as a motion for

summary

judgment

Federal

Procedure

negligence

and

limitations.

and

disposed

56;

negligent

and

of

pursuant

(2)

hiring

that
are

to

Federal

plaintiff's

barred

by

the

Rule

claims
statute

of
for
of

Accordingly, Defendant's Motion for Summary Judgment

(Docket Entry No.3) is GRANTED.
SIGNED at Houston, Texas, this

12tZ;2 2015.
7

SIM LAKE
UNITED STATES DISTRICT JUDGE

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