Standiford v. Rodriguez-Hernandez et al

Filing 149

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS MOTION 145 TO ALTER OR AMEND JUDGMENT AND DENYING MOTION TO CERTIFY QUESTIONS TO THE WEST VIRGINIA SUPREME COURT OF APPEALS. Signed by Senior Judge Frederick P. Stamp, Jr on 6/18/12. (mji)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
TREVOR STANDIFORD,
Plaintiff,
v.

Civil Action No. 5:10CV24
(STAMP)

MAURO HUMBERTO RODRIGUEZ-HERNANDEZ and
WATER PROVIDERS LIMITED d/b/a SWEET H20,
Defendants.
---------------------------------------CYNTHIA WARREN and JASON WARREN,
individually and as next friends
and parents of A.W., a minor,
Plaintiffs,
v.

Civil Action No. 5:10CV25
(STAMP)

MAURO HUMBERTO RODRIGUEZ-HERNANDEZ and
WATER PROVIDERS LIMITED d/b/a SWEET H2O,
Defendants.
MEMORANDUM OPINION AND ORDER
DENYING PLAINTIFFS’ MOTION TO ALTER OR AMEND JUDGMENT
AND DENYING MOTION TO CERTIFY QUESTIONS TO
THE WEST VIRGINIA SUPREME COURT OF APPEALS
I.

Procedural History

The above-styled civil actions arise out of a two-vehicle
automobile accident that occurred on November 16, 2009 in New
Martinsville, West Virginia.1

Defendant Mauro Humberto Rodriguez-

Hernandez (“Rodriguez-Hernandez”), an employee of Water Providers
Limited d/b/a Sweet H2O (“Water Providers”) who was driving a Water

1

These two cases were consolidated for discovery purposes and
dispositive motions per an order of this Court on July 1, 2010.

Providers’

truck,

Standiford

and

collided

owned

by

with

a

Cynthia

vehicle

and

Jason

driven

by

Warren.

Trevor
Trevor

Standiford and his passenger, Alyssa Warren, sustained significant
injuries.

Following the accident, the plaintiffs filed complaints

in the Circuit Court of Wetzel County, West Virginia alleging
claims of negligence, negligent entrustment, respondeat superior,
and the tort of outrage.

These cases were subsequently removed by

the defendant, Water Providers, to this Court.
On March 16, 2010, defendant State Farm Fire & Casualty
Company

(“State

Farm”),

the

purported

underinsured

motorist

insurer, filed a motion to dismiss the plaintiffs’ request for
injunctive
complaints.2

relief

contained

in

the

ad

damnum

clause

of

the

After that motion had been fully briefed, this Court

entered a memorandum opinion and order granting as framed the
motion to dismiss the request for injunctive relief of State Farm.
Specifically, the Court granted the motion to dismiss the request
for injunctive relief because the plaintiffs had failed to plead a
proper cause of action.

In addition to analyzing the complaint

under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the
Court also analyzed the complaint under Rule 65, finding that the
issuance of an injunction was unwarranted.

2

In the ad damnum clause of the complaints, the plaintiffs
requested that the Court issue an order prohibiting Bridge
Insurance Partners, State Farm, and other relevant insurance
companies involved in the claim from disseminating the plaintiffs’
information obtained during the course of litigation to third
parties and indexing bureaus.
2

On March 25, 2011, the plaintiffs filed a motion for leave to
amend the complaint, to which Water Providers filed a response in
opposition.

After a hearing on the motion to amend the complaint,

this Court issued an order confirming the pronounced order of the
Court granting as framed the defendant’s motion to modify the
scheduling order and granting the motion for leave to amend the
complaint.

Subsequently, the plaintiffs filed amended complaints

which add a cause of action for negligent hiring, a cause of action
for property damage, and remove State Farm as a defendant.
the

plaintiffs

filed

another

motion

complaint to add additional parties.

for

leave

to

Later,

amend

the

This Court denied the

plaintiffs’ request to join additional parties in a memorandum
opinion and order dated August 5, 2011.
On October 10, 2011, Water Providers filed a motion for
summary judgment.

One week later, the plaintiffs filed a motion

for summary judgment.

On January 26, 2012, this Court issued a

memorandum opinion and order in both cases dismissing the action as
to defendant Rodriguez-Hernandez, granting Water Provider’s motion
for summary judgment and denying the plaintiffs’ motion for summary
judgment.

Judgment was entered in favor of Water Providers that

same day.
On February 14, 2012, the plaintiffs jointly moved to alter or
amend the judgment and to certify questions to the West Virginia
Supreme Court of Appeals.

Water Providers filed a response in

opposition to the motion to alter or amend the judgment on February

3

28, 2012.

The plaintiffs did not file a reply.

The motion to

alter or amend is currently pending before this Court, and for the
reasons stated below, this Court finds that it must be denied.
II.
On

September

21,

2009,

Facts
Rodriguez-Hernandez

completed

an

application for employment with Water Providers, in which he
provided an address in Denton, Texas, and stated that he had a
valid driver’s license issued by the State of New Mexico.

On

September 23, 2009, Water Providers ascertained that RodriguezHernandez did not possess a driver’s license, and that the address
that appeared on his New Mexico identification card was different
from the one he provided on his employment application.
no

evidence

that

Water

Providers

took

any

action

There is
to

verify

Rodriguez-Hernandez’s legal status.
Upon hiring Rodriguez-Hernandez, Water Providers provided him
with an expense card and sent him to live and work in Wetzel
County, West Virginia.

Water Providers did not assign a specific

employee to transport Rodriguez-Hernandez to and from work while he
was in West Virginia. Instead, Rodriguez-Hernandez was expected to
share company vehicles with other employees.

Rodriguez-Hernandez

was specifically told by Alex Morgan, the Pennsylvania Operations
Manager, that he was not permitted to drive any Water Providers’
vehicles.
On November 16, 2009, without permission from Water Providers
or any supervisor, Rodriguez-Hernandez borrowed a 2008 Chevrolet

4

2500 commercial vehicle truck from another employee after the work
day

had

ended

in

order

to

drive

to

the

Laundromat.

While

Rodriguez-Hernandez was doing his laundry, he drove to get a snack
at a nearby convenience store.

On his way back to the Laundromat,

on Route 2 in New Martinsville, West Virginia, Rodriguez-Hernandez
made a sudden left hand turn across multiple lanes of traffic,
causing a collision with the 1995 Toyota Land Cruiser driven by
Trevor Standiford.
New Martinsville Police Officer Friend V. Estep responded to
the accident and charged Rodriguez-Hernandez with failure to yield,
making an improper turn, and failure to maintain control of his
vehicle.

Officer Estep determined that Rodriguez-Hernandez was an

illegal alien with no valid driver’s license.

After the accident,

Rodriguez-Hernandez was deported.
III.
A.

Applicable Law

Motion to Alter or Amend Judgment
The plaintiffs filed their motion to alter or amend pursuant

to Federal Rule of Civil Procedure 59(e).

The United States Court

of Appeals for the Fourth Circuit has recognized three grounds for
amending an earlier judgment: (1) to accommodate an intervening
change in controlling law; (2) to account for new evidence not
available at trial; or (3) to correct a clear error of law or
prevent manifest injustice.

Pacific Ins. Co. v. Am. Nat’l Fire

Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998).

“Rule 59(e) motions

may not be used . . . to raise arguments which could have been

5

raised prior to the issuance of the judgment, nor may they be used
to argue a case under a novel legal theory that the party had the
ability to address in the first instance.”

Id.

A Rule 59(e)

motion may not be used to re-litigate old matters and is an
extraordinary remedy that should be used sparingly.

Id.

It is

improper to use such a motion to ask the court to “rethink what the
court has already thought through -- rightly or wrongly.”

Above

the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101
(E.D. Va. 1983).
B.

Motion to Certify Questions to the West Virginia Supreme Court

of Appeals
West

Virginia

has

enacted

the

Uniform

Certification

of

Questions of Law Act, W. Va. Code § 51-1A-1, et seq., which
provides, in pertinent part:
The supreme court of appeals of West Virginia may answer
a question of law certified to it by any court of the
United States . . . if the answer may be determinative of
an issue in a pending cause in the certifying court and
if there is no controlling appellate decision,
constitutional provision or statute of this state.
W. Va. Code § 51-1A-3.

The West Virginia Supreme Court of Appeals

has recognized that the provisions of the Uniform Certification of
Questions of Law Act are not mandatory.

Morningstar v. Black and

Decker Mtg. Co., 253 S.E.2d 666, 668 (W. Va. 1979).

Thus,

certification is discretionary both for the certifying court and
for the court requested to answer the certified question. The West
Virginia Supreme Court of Appeals has stated “[i]t is rather
apparent that where our State’s substantive law is clear, there is
6

no need to obtain certification under W. Va. Code, 51-1A-1, et
seq.”

Id. at 669.
IV.

A.

Discussion

Claims Against Uninsured Motorist Insurance Carrier
The first argument presented by the plaintiffs in their motion

to alter or amend the judgment is that this Court prematurely
dismissed this case because the plaintiffs have viable claims
against their uninsured motorist insurance carrier, State Farm.
The plaintiffs argue that this Court’s finding that RodriguezHernandez was not in the scope of his employment makes Water
Providers’ truck an uninsured motor vehicle upon which Jason and
Cynthia Warren’s uninsured motorist vehicle coverage would be
activated.

The plaintiffs contend that Rodriguez-Hernandez should

be reinstated as a defendant, or alternatively, that they should be
permitted to name a “John Doe” defendant in order to pursue their
uninsured motor vehicle coverage claim.
The

defendant

counters

that

the

plaintiffs’

potential

uninsured motorist claim cannot serve as a basis for this Court to
alter or amend the judgment.
that

the

removed

plaintiffs
from

the

agreed

caption

The defendant highlights the fact
that

Rodriguez-Hernandez

because

he

was

therefore, was never a party to this lawsuit.

never

could

served,

be
and

(Def.’s Resp. Ex. A

at 31); (Pls.’ Resp. to Motions in Limine at 17) (“The plaintiffs
will agree to the removal of Rodriguez-Hernandez’s name from the
caption of these cases as Mr. Rodriguez-Hernandez was deported to

7

the Country of Mexico, and the plaintiffs have been unable to
effect service on him.”).

The defendant further argues that in

West Virginia, in the context of an uninsured motorists claim, a
plaintiff may only name a John Doe defendant when the driver of the
vehicle is unknown.

In this case, the defendant argues, the

parties never disputed that the Water Providers’ vehicle was driven
by Rodriguez-Hernandez and thus, there is no unknown party.
This Court finds that this matter cannot be re-opened in order
for the plaintiffs to reinstate Rodriguez-Hernandez as a defendant,
or for the plaintiffs to name a John Doe defendant.

Rule 4 of the

Federal Rules of Civil Procedure states that “[i]f a defendant is
not served within 120 days after the complaint is filed, the court
. . . must dismiss the action without prejudice against that
defendant or order that service be made within a specified time.”
Fed. R. Civ. P. 4(m) (emphasis added); see also Mendez v. Elliot,
45 F.3d 75, 78 (4th Cir. 1995).

Thus, Rodriguez-Hernandez was

properly dismissed from this case.
Turning

to

the

plaintiffs’

request

to

add

a

John

Doe

defendant, this Court notes that the West Virginia Legislature has
specifically authorized the filing of claims against a John Doe
defendant to recover uninsured motorist benefits, but only when the
owner or operator of a vehicle causing bodily injury is unknown.
W. Va. Code § 33-6-31(e); Collins v. Heaster, 619 S.E.2d 165, 170
(W. Va. 2005).
maintained

that

Throughout this litigation, the plaintiffs have
Rodriguez-Hernandez

8

was

driving

the

Water

Providers’ vehicle at the time of the accident.

Thus, there is no

unknown party, and the plaintiffs’ novel request to name a John Doe
defendant must be denied.

See Pacific Ins. Co. v. Am. Nat. Fire

Ins. Co., 148 F.3d 396, 404 (4th Cir. 1998) (stating that a party
should not be permitted to raise new arguments or legal theories of
liability on a motion under Rule 59(e)).
This Court’s January 26, 2012 opinion addressed the issue of
liability, finding that Water Providers cannot be held liable for
Rodriguez-Hernandez’s negligent acts.

This Court did not make any

findings regarding the liability of Rodriguez-Hernandez, and no
issues of insurance were decided in this case.3

In fact, the

plaintiffs removed State Farm as a defendant in their amended
complaints and sought to “exclude from the trial of this matter any
and all evidence . . . of health and medical insurance benefits by
plaintiffs from collateral sources.” (Pls.’ Mot. in Limine No. 8.)
Contrary to the plaintiffs’ assertion, the dismissal of this case
from the docket does not prevent them from pursuing a claim for
uninsured motorist benefits against their insurer. After all, “the

3

In their motion to alter or amend, the plaintiffs assert that
they have viable claims against State Farm, “the first party
insurance carrier.”
(Mot. to Alter or Amend J. at 3.)
The
plaintiffs’ original complaints reference two insurance carriers:
(1) Bridge Insurance Partners, the defendant’s insurer; and (2)
State Farm, the 1995 Toyota Land Cruiser’s insurer.
However,
neither of the plaintiffs’ complaints assert a claim against either
insurance carrier. Instead, the complaints request an order from
the Court prohibiting the insurance carriers from placing
information about the plaintiffs in an “indexing bureau.” Further,
the joint pretrial order makes no mention of any claim against the
uninsured motorist insurance carrier.
9

absence

of

a

judgment

order

entered

directly

against

the

[uninsured] motorist does not prevent entry of an order against the
[insurance] carrier if liability of the [uninsured] motorist has
been established.”
Broadwater,

453

§ 33-6-31(b).

State ex rel. Motorists Mut. Ins. Co. v.

S.E.2d

591,

597

(W.

Va.

1994);

W.

Va.

Code

Therefore, this Court sees no need to reopen this

matter.
B.

Legal and Factual Issues of Liability
In their motion to alter or amend judgment, the plaintiffs

argue that this Court failed to address pertinent legal and factual
issues of liability. Specifically, the plaintiffs contend that the
Court’s

ruling

does

not

consider:

(1)

that

courts

have

distinguished acts of employees on out-of-town assignments that are
incident to employment from acts that are for pleasure or are
personal; (2) that violation of W. Va. Code § 21-1B-1 is prima
facie

evidence

plaintiffs’

of

negligence

injuries;

(3)

that

that
a

proximately

Water

caused

Providers’

the

employee

permitted Rodriguez-Hernandez to use the vehicle; (4) that the
placement of an illegal alien in West Virginia and providing the
means for that illegal alien to live in West Virginia is outrageous
conduct; and (5) that the Court’s decision is against the public
policy of providing recourse for injured West Virginia citizens.
In response, Water Providers asserts that the plaintiffs’
motion to alter or amend judgment must be denied because the
plaintiffs are rearguing the merits of the motions for summary

10

judgment.

Water Providers contends that the plaintiffs do not

present any newly discovered evidence and they do not raise any new
facts or law that were not previously addressed by this Court.
Rather, in the view of Water Providers, the plaintiffs simply
disagree with this Court’s ruling.
As stated above, the Fourth Circuit recognizes three grounds
for amending an earlier judgment: (1) to accommodate an intervening
change in controlling law; (2) to account for new evidence not
available at trial; or (3) to correct a clear error of law or
prevent manifest injustice.

Pacific Ins. Co., 148 F.3d at 403.

The plaintiffs do not argue that there has been any intervening
change in controlling law, nor do they claim that new evidence is
available.

The only possible basis for the plaintiffs’ Rule 59(e)

motion is that this Court must correct a clear error of law or
prevent manifest injustice.

However, this Court finds that the

plaintiffs’ disagreement with the January 26, 2012 decision does
not amount to an error of law within the meaning of Rule 59.
1.

Scope of Employment

According to the plaintiffs, this Court fails to recognize the
importance of the fact that Water Providers required and provided
for

Rodriguez-Hernandez

to

live

in

West

Virginia

and

that

Rodriguez-Hernandez’s actions at the time of the accident were all
ordinary functions of living and working in West Virginia.

In the

January 26, 2012 opinion, this Court discussed, at length, whether
Rodriguez-Hernandez was acting within the scope of his employment

11

at the time of the accident. As this Court explained, the accident
occurred when Rodriguez-Hernandez was on a personal errand after
his shift had ended.

If this Court were to follow the logic of the

plaintiffs, then employers could potentially be held liable for the
negligent acts of any employee traveling to get something to eat or
to wash laundry -- personal tasks that many people perform on a
daily basis as ordinary functions of life that are not in any way
connected to their job.

This Court finds that interpretation of

the law to be far too broad, and thus, there is no clear error in
this Court’s finding that Rodriguez-Hernandez’s acts were not
within the course of his employment.
2.

West Virginia Code Section 21-1B-1

Next, the plaintiffs argue that because Waters Providers did
not verify the legal employment status of Rodriguez-Hernandez, it
violated W. Va. Code § 21-1B-1, which is prima facie evidence of
negligence and the proximate cause of the plaintiffs’ injuries.
According to the plaintiffs, it is for a jury to determine whether
Water Providers should have known that it hired an unauthorized
worker.
Section 21-1B-1 states that “employers have the responsibility
to verify the legal employment status of all persons who come into
their employ and to report their employment to the appropriate
governmental agencies.”

W. Va. Code § 21-1B-1.

As this Court

previously held, “there is no evidence that Water Providers knew
that Rodriguez-Hernandez was not authorized to work in the United

12

States at the time he was hired.”

(Mem. Op. Jan. 26, 2012 at 17.)

Any violation of W. Va. Code § 21-1B-1, which has not been proven,
would only mean that Water Providers could be penalized for failure
to verify employment status.

But failing to verify employment

status, if such a failure did occur, has not been shown to be the
proximate cause of the plaintiffs’ injuries.

The plaintiffs have

failed to show any clear error in this Court’s rejection of the
plaintiffs’ negligent hiring claim.
3.

Entrustment of the Vehicle

The plaintiffs also argue that the Court’s ruling fails to
account for the fact that another Water Providers’ employee, the
custodian of the vehicle, gave Rodriguez-Hernandez the truck. This
Court disagrees.

The January 26, 2012 opinion specifically states

that Rodriguez-Hernandez was told that he was not permitted to
drive a Water Providers’ vehicle and that he borrowed the vehicle
without permission from Water Providers or any supervisor.
Op. Jan. 26, 2012 at 4-5.)

(Mem.

Although the plaintiffs argue that

Lonnie Slavings entrusted the vehicle to Rodriguez-Hernandez, the
evidence suggests otherwise.

(Morgan Aff. ¶ 5); (Slavings Aff.

¶ 4.) Because there is no evidence that Water Providers, or Lonnie
Slavings, improperly loaned the vehicle to Rodriguez-Hernandez,
there is no clear error in this Court’s finding that the negligent
entrustment claim fails.

13

4.

Outrageous Conduct

The plaintiffs assert that the Court erred in determining that
the hiring of an illegal alien who causes injury is not outrageous
conduct and that Trevor Standiford did not suffer severe emotional
distress.

As this Court previously explained, the standard for

liability for the tort of outrage is high and requires extreme
conduct.

This Court found that the plaintiffs failed to produce

evidence to support the requisite elements to prove liability under
the tort of outrage.
erred

in

reaching

The Rule 59(e) motion argues that the Court
this

conclusion,

but

it

offers

no

law

or

additional facts in support of that argument.
The plaintiffs also attempt to reargue the question of whether
Trevor Standiford suffered severe emotional distress.

This Court

finds, yet again, that the mere fact that Trevor Standiford
received professional medical treatment does not alone prove that
he suffered severe emotional distress.

This Court sees no reason

to alter or amend its conclusions with respect to the tort of
outrage.
5.

Public Policy

Finally, the plaintiffs assert that the Court’s opinion is
contrary to the public policy of providing recourse for injured
West Virginia citizens -- injuries caused by the defendant’s act of
hiring an illegal alien.

This Court’s January 26, 2012 opinion

held that Water Providers was not liable for the negligent acts of
Rodriguez-Hernandez. The plaintiffs’ public policy argument is not

14

relevant to this finding.

Whether or not Water Providers is at

fault for failing to verify the legal employment status of an
illegal alien has no bearing on the question of whether the illegal
alien was acting within the scope of his employment at the time of
his accident.

For these reasons, the plaintiffs’ public policy

argument does not provide a basis for this Court to alter or amend
the judgment.
C.

Motion to Certify Questions to the West Virginia Supreme Court

of Appeals
The plaintiffs pose the following questions for certification:
1)
Whether an employer is vicariously liable for the
acts or omissions of its illegal alien employee when as
a condition of employment the employer places the illegal
employee in the State of West Virginia, requires the
illegal employee to be a transient resident of West
Virginia, pays for the illegal employee to live and
reside in the State of West Virginia, and while
performing a function necessary to live in West Virginia
-- traveling to get food and wash laundry -- the illegal
employee causes injuries to West Virginia citizens?
2)
Whether an employee violates W. Va. Code § 21-1B-1,
et seq., where it fails to verify the legal employment
status of its employee and that employee subsequently
turns out to be an illegal alien?
3)
If so, is the violation of W. Va. Code § 21-1B-1, et
seq., prima facie evidence of negligence and/or negligent
hiring when the illegal alien employee proximately causes
injuries to West Virginia citizens?
4)
Whether an employer is vicariously liable for
negligence where its illegal alien employee was placed in
West Virginia on an out-of-town assignment for multiple
days, and while driving the company vehicle to get food
and wash laundry the illegal alien employee causes a
motor vehicle accident?
5)
Whether an employer is vicariously liable for
negligence where its employee, who is a permissible user
15

and custodian of the company vehicle, permits a
previously unauthorized employee to use the vehicle
during an out-of-town assignment to get food and wash
laundry, and that employee causes a motor vehicle
accident?
6)
Whether an employer is vicariously liable for
negligence when the employer fails to inform its
employee, who is a permissible user and custodian of the
company vehicle, that certain employees on the crew are
not licensed to drive, whereby the custodian employee
permits the unlicensed driver to use the company vehicle
resulting in a motor vehicle accident?
7)
Whether the public policy of West Virginia requires
foreign companies to be held liable when its illegal
alien employee causes harm to citizens of West Virginia,
the illegal alien is deported, and the only remaining
recourse for the injured West Virginia citizens is the
foreign company that hired the illegal alien?
(Mot. to Alter or Amend J. at 16-17.) According to the plaintiffs,
these issues are matters of first impression in West Virginia that
can be rightfully determined by the highest court in West Virginia.
In its response to the motion to alter or amend judgment,
Water Providers asserts that the plaintiffs have waived the right
to seek certification to the Supreme Court of Appeals of West
Virginia because there is no longer any “pending cause,” and
because

there

litigation.

are

no

issues

of

“first

impression”

in

this

The defendant notes that certification of these

questions was only requested after final judgment had been entered
against the plaintiffs.

Further, the defendant contends that each

of the questions presented by the plaintiffs was addressed by this
Court in its January 26, 2012 memorandum opinion and order.
This Court finds the plaintiffs’ request for certification to
the Supreme Court of Appeals of West Virginia to be untimely.
16

Judgment in this case was entered on January 26, 2012, and as of
that date there was no longer a “pending cause.”
§ 51-1A-3.

W. Va. Code

The plaintiffs, believing that this case presented

issues of first impression, should have requested certification
earlier in this litigation.

See Dowell v. State Farm and Cas.

Auto. Ins. Co., 774 F. Supp. 996, 1001 (S.D. W. Va. 1991) (“The
Plaintiff made calculated and deliberate decisions not to move for
certification before entry of judgment or appeal the judgment
thereafter.

Hence, we do not find extreme hardship that would

compel granting relief inasmuch as the Plaintiff knowingly and
voluntarily passed over the means to protect his interest in
litigation . . . .”).

Accordingly, the plaintiffs’ motion for

certification to the West Virginia Supreme Court of Appeals must be
denied.
V.

Conclusion

For the reasons stated above, the plaintiffs’ motion to alter
or amend judgment and motion to certify questions to the West
Virginia Supreme Court of Appeals (ECF No. 145 in Civil Action No.
5:10CV24 and ECF No. 136 in Civil Action No. 5:10CV25) is DENIED.
IT IS SO ORDERED.
The Clerk is directed to transmit a copy of this memorandum
opinion and order to counsel of record herein.

17

DATED:

June 18, 2012

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

18