Myers et al v. DuBrueler et al
Filing
111
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS SECOND MOTION FOR SUMMARY JUDGMENT: Defendants 74 Second Motion for Summary Judgment is GRANTED. The Court ORDERS that the Plaintiff's negligence claim against Defendant John Doe is hereby DISM ISSED WITHOUT PREJUDICE. The Court further ORDERS that the Plaintiff's vicarious liability claims against Defendants Steven DuBrueler; POBAC, LLC; and PODS Enterprises, Inc., are hereby DISMISSED WITHOUT PREJUDICE. The Court ORDERS that the Pl aintiff' negligence claim against Defendant Steven DuBrueler is hereby DISMISSED WITH PREJUDICE. The Court ORDERS that the Defendants 55 First Motion for Summary Judgment and Defendants 86 Motions in Limine are DENIED AS MOOT. The Court ORDERS this matter stricken from its active docket. The Clerk is DIRECTED, pursuant to Federal Rule of Civil Procedure 58, to enter a separate judgment order in favor of the Defendants. Signed by Chief Judge Gina M. Groh on 6/3/2016. (cwm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG
SANDRA LEIGH MYERS,
Plaintiff,
v.
CIVIL ACTION NO.: 3:15-CV-56
(GROH)
STEVEN DuBRUELER; POBAC, LLC;
PODS ENTERPRISES, INC.; and
JOHN DOE,
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANTS’ SECOND MOTION FOR SUMMARY JUDGMENT
Currently pending before the Court is the Defendants’ Second Motion for Summary
Judgment [ECF No. 74], filed by Defendants Steven DuBrueler; POBAC, LLC; and PODS
Enterprises, Inc., on April 19, 2016. On May 10, 2016, the Plaintiff filed her response,
and on May 24, 2016, the Defendants filed their reply. For the following reasons, the
Court GRANTS the motion.
I. Background
On October 31, 2014, the Plaintiff filed her original complaint in the Circuit Court
of Berkeley County, West Virginia. Thereafter, on or about April 24, 2015, the Plaintiff
filed an amended complaint. The case was subsequently removed to this Court on May
11, 2015, based upon diversity jurisdiction. Both the original and amended complaints
name John Doe as a defendant and, to this day, the identity of Doe is still unknown.
In her amended complaint, the Plaintiff alleges that on November 3, 2012, she was
a passenger in a vehicle being driven by her husband. The two were traveling northbound
on Interstate 81, near the Inwood Exit in Berkeley County, West Virginia. At that time,
Doe was also traveling northbound on Interstate 81 and was operating a truck allegedly
owned by DuBrueler and POBAC. A PODS sign was attached to the side of the truck.
As the Plaintiff crossed into the left lane and attempted to pass the truck, the PODS sign
came off and landed on the Plaintiff’s vehicle, obstructing her husband’s view.
In
response, the Plaintiff’s husband slammed on his brakes, causing the Plaintiff to be
thrown into the dash. As a result, the Plaintiff sustained injuries to her right wrist and
shoulder, which she claims are permanent in nature.
The Plaintiff claims that Doe’s negligence was a direct and proximate cause of her
injuries. The Plaintiff further claims that DuBrueler “breached his duty owed to [the]
Plaintiff by letting Defendant Doe, an unsafe and irresponsible driver, operate the vehicle,
and by failing to ensure that the signs were secured.” ECF No. 1-1 at 3. As her claims
relate to DuBrueler, POBAC and PODS, the Plaintiff avers that they are “vicariously liable
and otherwise legally responsible” for the injuries resulting from Doe’s negligence. ECF
No. 1-1 at 3.
II. Standard of Review
Summary judgment is appropriate when a dispute presents no genuine issue as
to any material fact, thus warranting judgment as a matter of law in favor of the moving
party. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue exists “if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). It is the duty of the court to
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conduct “the threshold inquiry of determining whether there is the need for a trial—
whether, in other words, there are any genuine factual issues that properly can be
resolved only by a finder of fact because they may reasonably be resolved in favor of
either party.” Id. at 250.
The party opposing summary judgment “must do more than simply show that there
is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986) (citations omitted). Once the movant has
met its burden to show an absence of material fact, the party opposing summary judgment
must then come forward with affidavits or other evidence demonstrating there is indeed
a genuine issue for trial.
See Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 323-35;
Anderson, 477 U.S. at 247-48. “If the evidence is merely colorable, or is not significantly
probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50 (internal
citations omitted). On the contrary, summary judgment should be denied “if the evidence
is such that conflicting inferences may be drawn therefrom, or if reasonable men might
reach different conclusions.” Phoenix Sav. & Loan, Inc. v. Aetna Cas. & Sur. Co., 381
F.2d 245 (4th Cir. 1967) (citation omitted).
III. Discussion
In their second motion for summary judgment, DuBrueler, POBAC and PODS
present three arguments. First, they contend that the claim against Doe, an unnamed
and unidentified defendant who has yet to be served in this matter, must be dismissed.
Second, they aver that because the vicarious liability claims against them are based upon
“Doe’s operator negligence as the factual predicate,” those claims must also be
dismissed. ECF No. 74-1 at 5. Finally, DuBrueler, POBAC and PODS argue that no
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genuine issue of material fact exists regarding whether DuBrueler owned or controlled
the truck involved in the November 3, 2012 incident, and therefore the claim against
DuBrueler must be dismissed. Additionally, they argue that because the Plaintiff has
made no attempt to pierce POBAC’s limited liability company (“LLC”) veil, DuBrueler
cannot be held personally liable. In response, the Plaintiff admits that she is presently
unable to identify the driver of the truck involved in the November 3, 2012 incident.
Nevertheless, the Plaintiff argues that “by inference” she can show that the driver of the
truck “was either Steven DuBrueler or Mark Smith, and that the other one was the
passenger.” ECF No. 93 at 7. The Plaintiff further admits that she is aware of the case
law regarding John Doe defendants, but nonetheless requests that the Court delay
dismissal.
Here, although factual disputes exist, no genuine issue of material fact exists such
that a reasonable jury could return a verdict for the nonmoving party. Indeed, the Court
finds the present issues before it to be questions of law, and thus ill-suited to
determination by a jury. In regard to the Plaintiff’s negligence claim against Doe and the
vicarious liability claims against DuBrueler, POBAC and PODS stemming therefrom, the
Court has been presented with a question of law: Can this cause of action proceed to trial
based upon the actions of an unnamed, unidentified John Doe defendant? The Court
answers this question in the negative, and therefore finds that the negligence claim
against Doe and vicarious liability claims against DuBrueler, POBAC and PODS must be
dismissed. In regard to the Plaintiff’s negligence claim against DuBrueler, the Court finds
that because the Plaintiff has made no attempt to pierce POBAC’s LLC veil, DuBrueler
cannot be held personally liable and thus the claim against him must be dismissed.
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A.
Claim Against Defendant Doe and Vicarious Liability of Defendants
DuBrueler, POBAC and PODS
DuBrueler, POBAC and PODS argue that the claim against Doe must be
dismissed because judgment cannot be entered against a John Doe defendant, the
Federal Rules of Civil Procedure do not permit actions against unnamed defendants,
service upon Doe was not executed within 120 days in accordance with Federal Rule of
Civil Procedure 4(m) and the Supreme Court cases of Bell Atl. Corp. v. Twombly, 550
U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), support dismissals of claims
against John Doe defendants.
The use of unnamed “John Doe” defendants is generally disfavored by federal
courts. See Chidi Njoku v. Unknown Special Unit Staff, 217 F.3d 840, 2000 WL 903896,
at *1 (4th Cir. July 7, 2000) (unpublished per curiam table decision) (first citing Roper v.
Grayson, 81 F.3d 124, 126 (10th Cir. 1996); then citing Gillespie v. Civiletti, 629 F.2d 637,
642 (9th Cir. 1980)); see also Farmer v. Wilson, Civil Action No. 2:14-cv-13256, 2014 WL
4629591, at *1 (S.D. W. Va. Sept. 15, 2014).
However, courts deem the practice
acceptable “when the identity of the alleged defendant is not known at the time the
complaint is filed and the plaintiff is likely to be able to identify the defendant after further
discovery.” Chidi Njoku, 217 F.3d at *1 (citations omitted). Importantly, if discovery fails
to uncover the identity of the John Doe defendant, the action against him may be
dismissed without prejudice. Schiff v. Kennedy, 691 F.2d 196, 198 (4th Cir. 1982).
Here, the Court set a discovery deadline of April 5, 2016. ECF No. 16. Nearly two
months have passed since the completion of discovery and the Plaintiff still has not
discovered the identity of Doe. Furthermore, over a year has passed since the filing of
the Plaintiff’s amended complaint and Doe has yet to be served with a summons and a
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copy of the complaint in accordance with Rule 4(m) of the Federal Rules of Civil
Procedure.1 Even more troubling is the inability of this Court to enter judgment against
an unidentified party, see Chidi Njoku, 217 F.3d at *1, and the insufficiency of a complaint
that is unable to state a claim upon which relief can be granted, see Price v. Marsh, Civil
Action No. 2:12-cv-05442, 2013 WL 5409811, at *5 (S.D. W. Va. Sept. 25, 2013) (opining
that a claim against an unnamed party, by definition, cannot be a claim upon which relief
can be granted). Therefore, because the Plaintiff has been unable to identify Doe after
full completion of discovery, the Plaintiff’s claim against Doe must be dismissed.
DuBrueler, POBAC and PODS next argue that the claims against them for
vicarious liability should be dismissed because the Plaintiff has failed to demonstrate the
existence of a relationship between themselves and Doe. Under the laws of West
Virginia, a party asserting a claim of vicarious liability must “make a prima facie showing
of the existence of the relation of master and servant or principal and agent or employer
and employee.” Sanders v. Georgia-Pac. Corp., 225 S.E.2d 218, 222 (W. Va. 1976).
At this stage, the Court finds that the Plaintiff’s inability to demonstrate a
relationship between Doe, an unidentifiable individual, and DuBrueler, POBAC and PODS
is grounds for dismissal of her vicarious liability claims.
The only evidence of any
relationship between Doe and the other Defendants is the unsubstantiated allegations
made by the Plaintiff in her complaint. In general, a party opposing a motion for summary
judgment must do more than rely on matters pleaded in the complaint. Williams v. Griffin,
952 F.2d 820, 823 (4th Cir. 1991) (citations omitted). Contrary to this requirement, the
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The Court notes that at the time the Plaintiff filed her amended complaint, the Federal Rules of Civil
Procedure still required service to be executed within 120 days from the filing of the complaint. Rule 4(m)
was amended in 2015, with an effective date of December 1, 2015, reducing the time for service from 120
to 90 days. Fed. R. Civ. P. 4(m) (advisory committee’s note to 2015 amendment).
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Plaintiff has not provided any information as to an employer and employee relationship,
or any other type of relationship, between Doe and the other Defendants through
reference to pleadings, affidavits, deposition testimony or otherwise. Therefore, because
the Plaintiff has not provided any evidence in support of a relationship between Doe and
the other Defendants that would warrant a claim of vicarious liability, the claims asserting
vicarious liability against DuBrueler, POBAC and PODS must be dismissed.
B.
Negligence Claim Against Defendant DuBrueler
Lastly, DuBrueler, POBAC and PODS argue that the Plaintiff’s negligence claim
against DuBrueler must be dismissed because there is no genuine issue of material fact
regarding whether DuBrueler owned or controlled the truck involved in the November 3,
2012 incident. In support, they point to the Plaintiff’s September 15, 2015 deposition,
during which she admitted that she had no evidence indicating that DuBrueler or POBAC
owned or controlled the truck. However, before determining whether a genuine dispute
of material fact exists as to whether DuBrueler owned or controlled the truck involved in
the November 3, 2012 incident, the Court must address whether DuBrueler may remain
a named party in this cause of action.
In 2005, DuBrueler purchased a PODS franchise through his company, POBAC.
ECF No. 93-3 at 3. POBAC is an LLC of which DuBrueler is the owner and sole member.
ECF Nos. 93 at 2, 93-3 at 3, 93-7 at 2. The amended complaint alleges that “DuBrueler
breached his duty to Plaintiff by letting Defendant Doe, an unsafe and irresponsible driver,
operate the vehicle, and by failing to ensure that the signs were secured.” ECF No. 1-1
at 3. This negligence claim against DuBrueler is based upon his status as the owner and
member of POBAC, which is a franchisee of PODS. See ECF No. 93 at 2. However, the
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Plaintiff does not allege how the LLC veil can be pierced in order to hold DuBrueler
personally liable.
In West Virginia, the veil of an LLC may be pierced if “(1) there exists such unity of
interest and ownership that the separate personalities of the business and of the
individual member(s) or manager(s) no longer exist and (2) fraud, injustice, or an
inequitable result would occur if the veil is not pierced.” Kubican v. The Tavern, LLC, 752
S.E.2d 299, 313 (W. Va. 2013). In establishing the aforementioned factors, the West
Virginia Supreme Court in Kubican considered the standards for piercing the veil of
corporations. Id. at 311. The complaining party bears the burden of demonstrating the
required factors for piercing the veil of a corporate entity. See Mills v. USA Mobile
Commc’ns, Inc., 438 S.E.2d 1, 5 (W. Va. 1993).
Thus, absent authority explicitly
indicating otherwise, the Plaintiff in this case bears the burden of demonstrating the
factors required to pierce POBAC’s LLC veil. See id.; see also In re White, 412 B.R. 860,
865 (Bankr. W.D. Va. 2009) (citing DeWitt Truck Brokers, Inc. v. W. Ray Flemming Fruit
Co., 540 F.2d 681, 683 (4th Cir. 1976)); Thomas & Thomas Court Reporters, LLC v.
Switzer, 810 N.W.2d 677, 685 (Neb. 2012). Because the Plaintiff has failed to plead any
facts in relation to piercing the LLC veil, the claim against DuBrueler must be dismissed.
IV. Conclusion
Based upon the aforementioned, the Court ORDERS that the Defendants’ Second
Motion for Summary Judgment [ECF No. 74] is GRANTED. The Court ORDERS that the
Plaintiff’s negligence claim against Defendant John Doe is hereby DISMISSED
WITHOUT PREJUDICE. The Court further ORDERS that the Plaintiff’s vicarious liability
claims against Defendants Steven DuBrueler; POBAC, LLC; and PODS Enterprises, Inc.,
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are hereby DISMISSED WITHOUT PREJUDICE. The Court ORDERS that the Plaintiff’s
negligence claim against Defendant Steven DuBrueler is hereby DISMISSED WITH
PREJUDICE.
The Court ORDERS that the Defendants’ First Motion for Summary Judgment
[ECF No. 55] and the Defendants’ Motions in Limine [ECF No. 86] are DENIED AS
MOOT.
The Court ORDERS this matter stricken from its active docket.
The Clerk is DIRECTED, pursuant to Federal Rule of Civil Procedure 58, to enter
a separate judgment order in favor of the Defendants.
The Clerk is DIRECTED to transmit copies of this Order to all counsel of record
herein.
DATED: June 3, 2016
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