Butler v. Delta Air Lines
MEMORANDUM, OPINION and ORDER ADOPTING 124 Memorandum and Recommendations, DENYING 123 MOTION to Consolidate Lead Case No. 4:15-CV-03682 and Member Case No. 4:16-CV-03711, GRANTING IN PART, DENYING IN PART 60 MOTION for Summary Judgment .(Signed by Judge Gray H Miller) Parties notified.(rkonieczny, 4)
IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
DELTA AIR LINES, INC.,
CIVIL ACTION H-15-3682
MEMORANDUM OPINION AND ORDER
Pending before the court is a memorandum and recommendation (“M&R”) filed by
Magistrate Judge Nancy Johnson. Dkt. 252. The Magistrate Judge considered a motion for
summary judgment filed by defendant Delta Air Lines, Inc. (“Delta”) (Dkt. 60). Id. Having
considered the M&R, the motion, plaintiff Kiante Butler’s objections (Dkt. 127), defendant Delta’s
objections (Dkt. 128), Butler’s response (Dkt. 130), Delta’s response (Dkt. 129), and other relevant
materials in the record, the court is of the opinion that Butler’s objections and Delta’s objections
should be SUSTAINED IN PART AND OVERRULED IN PART and that the M&R should be
ADOPTED IN FULL. Also pending is Butler’s motion to consolidate (Dkt. 123). The court is of
the opinion that the motion to consolidate should be DENIED.
I. LEGAL STANDARDS
For dispositive matters, the court “determine(s) de novo any part of the magistrate judge’s
disposition that has been properly objected to.” See Fed. R. Civ. P. 72(b)(3). “The district judge
may accept, reject, or modify the recommended disposition; receive further evidence; or return the
matter to the magistrate judge with instructions.” Id. “When no timely objection is filed, the court
need only satisfy itself that there is no clear error on the face of the record in order to accept the
recommendation.” Fed. R. Civ. P. 72(b), Advisory Comm. Note (1983). For non-dispositive
matters, the court may set aside the magistrate judge’s order only to the extent that it is “clearly
erroneous or contrary to law.” Fed. R. Civ. P. 72(a).
Motion for Summary Judgment
A court shall grant summary judgment when a “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(c). “[A] fact is genuinely in dispute only if a reasonable jury could return a verdict for
the non-moving party.” Fordoche, Inc. v. Texaco, Inc., 463 F.3d 388, 392 (5th Cir. 2006). The
moving party bears the initial burden of demonstrating the absence of genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2552 (1986). If the party meets its
burden, the burden shifts to the non-moving party to set forth specific facts showing a genuine issue
for trial. Fed. R. Civ. P. 56(e). The court must view the evidence in the light most favorable to the
non-movant and draw all justifiable inferences in favor of the non-movant. Envtl. Conservation Org.
v. City of Dall., Tex., 529 F.3d 519, 524 (5th Cir. 2008).
Butler and Delta both filed objections to the M&R.
Butler contends that he should be able to designate his experts past the deadline, and he takes
issue with the fact that the court granted summary judgment as to attorneys’ fees because Butler
failed to designate an expert witness to testify, stating that the court did this on its own accord.
Dkt. 130. However, in fact, Delta did move for summary judgment on the ground that Butler failed
to designate an expert on attorneys’ fees. Dkt. 60 at 11. As the Magistrate Judge explained in the
order denying Butler’s subsequent motion to designate experts, Butler had many opportunities at
earlier points in time to designate experts, was on notice of this failure, and the deadlines for
discovery and designation of expert witnesses has long passed. See Dkt. 132. Therefore, Butler’s
objections are OVERRULED.
Delta objects to the fact that the court denied summary judgment on Butler’s claims for
breach of contract and promissory estoppel. Dkt. 128. The thrust of Delta’s objections focuses on
alleged plans by Butler’s family members to permanently assume custody of A.B. from Butler upon
A.B.’s arrival in Houston. Id.
As to Butler’s breach of contract claim, Delta argues that Butler cannot prove that his
damages were caused by Delta’s breach. Id. Delta contends that even if A.B. had been released to
Butler’s cousin, Shantel Pierce, as Butler intended, A.B. would not have been returned by Butler’s
family, and he would have had to go to court to retrieve her. Id. However, Delta’s objection ignores
the fact that the Magistrate Judge found that this case may fall under the limited exception allowing
Butler to seek mental anguish damages for his breach of contract claim. Dkt. 124 at 19. Butler
averred that Delta’s actions caused him mental anguish, stating that his mental health issues “were
worsened as a direct result of Delta’s actions, in allowing a convicted kidnapper [to] take my child,
without even calling me.” Dkt. 102-4 at 4. Therefore, Delta’s objection is OVERRULED.
Delta also objects to the Magistrate Judge’s denial of summary judgment on Butler’s
promissory estoppel claim. In Zenor v. El Paso Healthcare System, Ltd., the Fifth Circuit cited the
following four elements of a promissory estoppel claim: “‘(1) a promise, (2) foreseeability of
reliance thereon by the promisor, and (3) substantial reliance by the promisee to his detriment . . .
[and (4)] a definite finding that injustice can be avoided only by the enforcement of the promise.’”
176 F.3d 847, 864 (5th Cir. 1999) (quoting Clardy Mfg. Co. v. Marine Midland Bus. Loans, Inc.,
88 F.3d 347, 360 (5th Cir. 1996)). For the elements of promissory estoppel, the Magistrate Judge
cited MetroplexCore, L.L.C. v. Parsons Transp., Inc., which stated that “[t]he requisites of
promissory estoppel are: (1) a promise, (2) foreseeability of reliance thereon by the promisor, and
(3) substantial reliance by the promisee to his detriment.” 743 F.3d 964, 977 (5th Cir 2014)
(alteration in original). Later, the case explains, “A promise which the promisor should reasonably
expect to induce action or forbearance of a definite and substantial character on the part of the
promisee and which does induce such action or forbearance is binding if injustice can be avoided
only by enforcement of the promise.” Id.
Delta first argues that the Magistrate Judge did not elaborate why, and Butler cannot show,
that he relied on Delta’s promise to his detriment. As the Magistrate Judge explained, there is a fact
issue whether Delta failed to comply with its own policies, which resulted in A.B.’s release to an
unauthorized person without Butler’s knowledge. Dkt. 124 at 23. Further, Butler had to travel to
Texas to enforce his custody agreement. Dkt. 102-4. Clearly, there is a fact issue whether his
reliance on Delta’s promises to call in the event that the authorized person was not available was to
Delta contends that the Magistrate Judge failed to mention or analyze the fourth element of
a promissory estoppel claim cited in Zenor, that injustice can be avoided only by the enforcement
of the promise. Dkt. 128. This objection is SUSTAINED. However, the court agrees with the
Magistrate Judge that summary judgment should not be granted on this claim. Butler has raised a
fact issue whether the injustice can be avoided only by enforcement of the promise. A jury must
decide whether if Delta had complied with its promise to Butler, an injustice would have been
III. DELTA’S MOTION TO CONSOLIDATE
On May 8, 2017, Delta and Endeavor Air, Inc. filed a motion to consolidate, asking the court
to consolidate this action (“Delta case”) with Kiante Butler v. Endeavor Air, Inc., et al., No. 4:16-cv03711 (the “Endeavor case”). Dkt. 123. In the Endeavor case, Butler sued Endeavor Air, a
subsidiary of Delta, along with Shantel Pierce, Gloria Jimenez, and Jennifer Lopez, in state court,
and Endeavor Air removed it to federal court. Id.
Rule 42(a) of the Federal Rules of Civil Procedure provides that if “actions before the court
involve a common question of law or fact, the court may: (1) join for hearing or trial any or all
matters at issue in the actions; (2) consolidate the actions; or (3) issue any other orders to avoid
unnecessary cost or delay.” Fed. R. Civ. P. 42(a). Broad discretion is vested in the district court in
deciding whether two actions should be consolidated, and to what extent. Mills v. Beech Aircraft
Corp., 886 F.2d 758, 761–62 (5th Cir. 1989). However, consolidation “is improper if it would
prejudice the rights of the parties.” St. Bernard Gen. Hosp., Inc. v. Hosp. Serv. Ass’n of New
Orleans, Inc., 712 F.2d 978, 989 (5th Cir. 1983).
In deciding whether to consolidate, a district court considers the following factors: (1)
whether the actions are pending before the same court; (2) whether common parties are involved in
the cases; (3) whether there are common questions of law and/or fact; (4) whether there is a risk of
prejudice or confusion if the cases are consolidated, and if so, is the risk outweighed by the risk of
inconsistent adjudications of factual and legal issues if the cases are tried separately; and (5) whether
consolidation will conserve judicial resources and reduce the cost of trying the cases separately. In
re Enron Corp. Sec., Derivative & “ERISA” Litig., Nos. H-01-3624, H-04-0088, H-04-0087, H-035528, 2007 WL 446051, at *1 (S.D. Tex. Feb. 7, 2007) (unpublished). Courts also consider
“whether the cases are at the same stage of preparation for trial.” Id. (citing St. Bernard Gen. Hosp.,
712 F.2d at 989).
Here, the actions are both pending before the same court, have the same plaintiff involved,
and involve the same set of facts and most of the same legal claims. The two main issues with this
consolidation are the presence of as defendants Jimenez, Lopez, and Pierce in the Endeavor case,
and the fact that this suit is much further along than the Endeavor case.
In the Endeavor case, Butler has brought a civil conspiracy claim against Jimenez, Pierce,
and Lopez, which Endeavor contends is improper because there must be an underlying tort. The
Fifth Circuit has stated as such. See, e.g., Homoki v. Conversion Servs., Inc., 717 F.3d 388, 402 (5th
Cir. 2013)(“Civil conspiracy is a derivative tort, therefore, liability for a civil conspiracy depends
on participation in an underlying tort. In order to adequately plead a claim for civil conspiracy, a
plaintiff must adequately plead the underlying tort.”); Meadows v. Hartford Life Ins. Co., 492 F.3d
634, 640 (5th Cir 2007)(“If a plaintiff fails to state a separate claim on which the court may grant
relief, then the claim for civil conspiracy necessarily fails.”). However, as of the date of this order,
none of those defendants have retained an attorney or filed any type of motion to dismiss, so they
are still joined as parties in that action.
Additionally, the presence of Pierce in the Endeavor case is particularly problematic due to
an ethical issue. In the course of this lawsuit, it has been revealed that one of Butler’s attorneys, Ms.
Lewis, sent a letter to Delta’s insurance company stating that she represented Pierce, and that she
later sent an email to Pierce stating “I am still technically your attorney, since we never ended the
attorney/client relationship.” See Dkt. 89-3, Email from U.A. Lewis to Shantel Pierce Dated March
21, 2016. In the Delta lawsuit, Pierce has been designated as a responsible third party, not a party
to the lawsuit.
Further complicating these issues is the fact that the cases are in two very different stages of
the litigation process. This case has been pending since December 2015 and is ready to be set for
trial, whereas the Endeavor case has just concluded the discovery process, and the deadline for
dispositive and nondispositive motions has been extended to October 2, 2017.
Therefore, due to the ethical issues presented in the Endeavor case with Pierce, as well as
differences in what has been filed in both suits and the different stages of the litigation, the court
declines to exercise its discretion to consolidate the two cases. Delta’s motion to consolidate
(Dkt. 123) is DENIED.
Butler’s objections (Dkt. 127) are OVERRULED, Delta’s objections (Dkt. 128) are
SUSTAINED IN PART AND OVERRULED IN PART, and the M&R (Dkt. 124) is hereby
ADOPTED IN FULL. Delta’s motion for summary judgment (Dkt. 60) is GRANTED IN PART
AND DENIED IN PART. Additionally, Delta’s motion to consolidate (Dkt. 123) is DENIED.
It is so ORDERED.
Signed at Houston, Texas on September 12, 2017.
Gray H. Miller
United States District Judge
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