United States District Court, S.D. Texas, Houston Division
MICHAEL J. GAVION, JR. and MICHAEL JACKSON and AMANDA JACKSON, As Successors in Interest to the Rights of MICHAEL GAVION, JR., Plaintiffs,
ACE AMERICAN INSURANCE COMPANY, Defendant.
MEMORANDUM OPINION AND ORDER
LAKE UNITED STATES DISTRICT JUDGE.
brought this action against defendant ACE American Insurance
Company ("ACE American") for failing to defend
plaintiff Michael J. Gavion, Jr. in a suit arising from an
automobile accident and for failing to pay the resulting
judgment. Pending before the court are ACE American Insurance
Company's Motion for Summary Judgment
("Defendant's MSJ") (Docket Entry No. 11) and
plaintiffs' Motion to Strike Requests for Admissions and
Alternatively to Extend Time to Respond to Those Requests
("Plaintiffs' Motion to Strike") (Docket Entry
No. 12). For the reasons explained below, Plaintiffs'
Motion to Strike will be granted in part and denied in part,
and ACE American's Motion for Summary Judgment will be
Undisputed Facts and Procedural
August of 2009 plaintiff, Michael J. Gavion, Jr., drove into
the path of a Houston Metropolitan Transit Authority train
and was struck by the train. Gavion was driving a company
vehicle provided to his mother, an employee of Xerox
Corporation ("Xerox"). Gavion's mother lent
Gavion the vehicle for personal use. Plaintiff Amanda Jackson
was a passenger at the time of the accident and was injured
as a result. She, along with plaintiff Michael Jackson, sued
Gavion and ACE American in Louisiana state court (the
"Louisiana action"). ACE American was dismissed
from that suit. Gavion never appeared in the Louisiana action
and never tendered the lawsuit to ACE American or sought a
defense. The Jacksons obtained a default judgment against
Gavion for $185, 000. Gavion then assigned any rights he may
have had to recover against ACE American to the Jacksons.
Jacksons asserted Gavion's rights in a suit in the 129th
Judicial District Court of Harris County, Texas. ACE American
timely removed and now moves for summary judgment.
Motion for Summary Judgment
Standard of Review
judgment is appropriate if the movant establishes that there
is no genuine dispute about any material fact and the movant
is entitled to judgment as a matter of law. Fed.R.Civ.P.
56(a). Disputes about material facts are genuine "if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party." Anderson v.
Liberty Lobby, Inc., 106 S.Ct. 2505, 2510 (1986). The
moving party is entitled to judgment as a matter of law if
"the nonmoving party has failed to make a sufficient
showing on an essential element of her case with respect to
which she has the burden of proof." Celotex Corp. v.
Catrett, 106 S.Ct. 2548, 2552 (1986) .
moving for summary judgment "must 'demonstrate the
absence of a genuine issue of material fact, ' but need
not negate the elements of the nonmovant's
case." Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994) (en banc) (per curiam) (quoting
Celotex, 106 S.Ct. at 2553). "If the moving
party fails to meet this initial burden, the motion must be
denied, regardless of the nonmovant's response."
Id. If, however, the moving party meets this burden,
"the nonmovant must go beyond the pleadings" and
produce evidence that specific facts exist over which there
is a genuine issue for trial. Id. (citing
Celotex, 106 S.Ct. at 2553-54) . The nonmovant
"must do more than simply show that there is some
metaphysical doubt as to the material facts."
Matsushita Electric Industrial Co., Ltd. v. Zenith Radio
Corp., 106 S.Ct. 1348, 1356 (1986) .
reviewing the evidence "the court must draw all
reasonable inferences in favor of the nonmoving party, and it
may not make credibility determinations or weigh the
evidence." Reeves v. Sanderson Plumbing Products,
Inc., 120 S.Ct. 2097, 2110 (2000). Factual controversies
are to be resolved in favor of the nonmovant, "but only
when there is an actual controversy, that is, when both
parties have submitted evidence of contradictory facts."
Little, 37 F.3d at 1075.
Requests for Admission
American served requests for admissions on Gavion on December
15, 2016. As of the filing of ACE American's
Motion for Summary Judgment on March 14, 2017, Gavion had not
responded. As part of its motion, ACE American moved
to have the requests for admissions deemed admitted under
Federal Rule of Civil Procedure 36(a) (3) . Gavion moved to
strike the admissions and, alternatively, to extend the time
to respond. Because an extension does not prejudice
ACE American, and because Gavion provided the court with a
credible reason for the delay, an extension will be granted.
The admissions attached to Plaintiffs' Motion to Strike
will be considered timely responses to ACE American's
original requests for admission.
Motion for ...