Davila v. Alcoa Inc.

Filing 76

MEMORANDUM AND ORDER Plaintiffs Motion for Relief from Judgment and New Trial[Doc. # 68] and Motion to Supplement Summary Judgment Record [Doc. # 69] areGRANTED. It is furtherORDERED that the Courts Memorandum and Order [Doc. # 65] and FinalJudgment [Doc. # 66] are VACATED and this case is REINSTATED on the Courtsactive docket. It is furtherORDERED that counsel shall appear before the Court in Houston, Texas, onNovember 17, 2016, at 11:00 a.m. for a status and scheduling conference. Counselshall be prepared to discuss whether Defendant intends to file a renewed motion forsummary judgment and, if so, an appropriate briefing schedule.. Case reopened on 11/3/2016(Signed by Judge Nancy F Atlas) Parties notified.(sashabranner, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
VICTORIA DIVISION
ANTHONY DAVILA, et al.,
Plaintiffs,
v.
ALCOA WORLD ALUMINA LLC,
Defendant.

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November 03, 2016
David J. Bradley, Clerk

CIVIL ACTION NO. V-14-0051

MEMORANDUM AND ORDER
This case is before the Court on the Motion for Relief from Judgement and New
Trial [Doc. # 68] and Motion to Supplement Summary Judgment Record [Doc. # 69]
filed by Plaintiffs Anthony and Michelle Davila. Defendant Alcoa World Alumina
LLC (“Alcoa”) filed a consolidated Response [Doc. # 74], and Plaintiffs filed a
consolidated Reply [Doc. # 75]. Having reviewed the full record and the applicable
legal authorities, the Court grants the Motion for Relief from Judgment and the
Motion to Supplement Summary Judgment Record.
I.

BACKGROUND
Anthony Davila (“Davila”) worked as a supervisor for W-S Industrial Services,

Inc. (“WSI”). Alcoa hired WSI to perform industrial cleaning services at Alcoa’s
facility in Point Comfort, Texas.

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On October 23, 2013, Davila was working for WSI at Alcoa to clear what Alcoa
believed to be a blocked airlift on a tank that was filled with hot, caustic material.
Davila’s crew began hydroblasting the tank’s airlift using between 7,000 and 10,000
pounds of water pressure. After the crew had been hydroblasting for some disputed
but brief period of time, Davila climbed up to a platform at the top of the tank to
determine whether the hydroblasting was resolving the blockage issue. Soon after
Davila began climbing down from the platform, trapped air was released, causing the
hot caustic material to spew from the top of the tank. Davila was severely injured,
receiving burns to his hands, back, face, eyes, and legs.
By Memorandum and Order [Doc. # 65] and Final Judgment [Doc. # 66]
entered August 11, 2016, the Court granted Defendant’s Motion for Summary
Judgment. The Court held that Plaintiffs’ claims were barred by Chapter 95 of the
Texas Civil Practice and Remedies Code, which provides:
A property owner is not liable for personal injury, death, or property
damage to a contractor, subcontractor, or an employee of a contractor or
subcontractor who constructs, repairs, renovates, or modifies an
improvement to real property, including personal injury, death, or
property damage arising from the failure to provide a safe workplace
unless:
(1) the property owner exercises or retains some control
over the manner in which the work is performed, other than
the right to order the work to start or stop or to inspect
progress or receive reports; and

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(2) the property owner had actual knowledge of the danger
or condition resulting in the personal injury, death, or
property damage and failed to adequately warn.
TEX. CIV. PRAC. & REM. CODE § 95.003.
On September 8, 2016, Plaintiffs filed the pending motions, which have been
fully briefed and are ripe for decision.
II.

ANALYSIS
Plaintiffs seek relief from judgment pursuant to Rule 59(e) of the Federal Rules

of Civil Procedure based on newly-discovered evidence with which they seek to
supplement the summary judgment record. Specifically, Plaintiffs seek to submit the
deposition testimony of Alcoa employees Brent Moore and Jeffrey Strickland. These
depositions were taken on August 10, 2016, the day before the Court issued its
Memorandum and Order granting summary judgment in favor of Defendant.
Transcripts of the deposition testimony were not available until August 16, 2016, after
the Court issued its ruling.
A motion for relief from judgment based on newly-discovered evidence should
be granted “only if (1) the facts discovered are of such a nature that they would
probably change the outcome; (2) the facts alleged are actually newly discovered and
could not have been discovered earlier by proper diligence; and (3) the facts are not
merely cumulative or impeaching.” Ferraro v. Liberty Mut. Fire Ins. Co., 796 F.3d

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529, 534 (5th Cir. 2015) (quoting Johnson v. Diversicare Afton Oaks, LLC, 597 F.3d
673, 677 (5th Cir. 2010)). In this case, the new evidence is likely to change the ruling
on Defendant’s Motion for Summary Judgment. Plaintiffs now have evidence that
may raise a genuine issue of material fact regarding whether Defendant exercised
control over the manner in which Davila and his crew were performing their work,
and regarding whether Defendant had actual knowledge of the dangerous condition
created by pumping air into the storage tank.
The Court finds that the evidence is newly-discovered and that it could not have
been discovered earlier. Defendant filed its motion for summary judgment while
discovery was ongoing. Plaintiffs should have followed the procedure set forth in
Rule 56(d) of the Federal Rules of Civil Procedure to demonstrate their need to
complete discovery in order to present facts essential to their opposition to the motion.
Plaintiffs’ failure to follow this procedure, however, is an inadequate basis to deny
Plaintiffs the opportunity to present the new evidence in opposition to summary
judgment.
The Court finds further that the new evidence is not cumulative or impeaching.
The newly-discovered evidence supports Plaintiffs’ position that Defendant retained
control over the manner in which Davila and his crew performed their work and that
Defendant had actual knowledge of the dangerous condition. This evidence may be

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sufficient to raise a genuine issue of material fact on the applicability of the
Chapter 95 defense and thereby defeat summary judgment.
Based on the foregoing, and in the exercise of the Court’s discretion, the Court
finds that Plaintiffs have demonstrated an adequate basis for relief from the summary
judgment entered in favor of Defendant.
III.

CONCLUSION AND ORDER
Plaintiffs have newly-discovered evidence with which they seek to supplement

the summary judgment record. The Court exercises its discretion to grant relief from
judgment and permit Plaintiffs to use the newly-discovered evidence in opposition to
any renewed Motion for Summary Judgment that Defendant may file. Accordingly,
it is hereby
ORDERED that Plaintiffs’ Motion for Relief from Judgment and New Trial
[Doc. # 68] and Motion to Supplement Summary Judgment Record [Doc. # 69] are
GRANTED. It is further
ORDERED that the Court’s Memorandum and Order [Doc. # 65] and Final
Judgment [Doc. # 66] are VACATED and this case is REINSTATED on the Court’s
active docket. It is further
ORDERED that counsel shall appear before the Court in Houston, Texas, on
November 17, 2016, at 11:00 a.m. for a status and scheduling conference. Counsel

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shall be prepared to discuss whether Defendant intends to file a renewed motion for
summary judgment and, if so, an appropriate briefing schedule.
SIGNED at Houston, Texas, this 3rd day of November, 2016.

NAN Y F. ATLAS
SENIOR UNI
STATES DISTRICT JUDGE

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