United States District Court, W.D. Texas, Austin Division
HONORABLE ROBERT PITMAN UNITED STATES DISTRICT JUDGE.
ORDER AND REPORT AND RECOMMENDATION OF THE UNITED
STATES MAGISTRATE JUDGE
W. AUSTIN UNITED STATES MAGISTRATE JUDGE.
the Court are MetroCare Services-Austin, LP's Motion to
for Summary Judgment (Dkt. No. 80); Plaintiff's Unopposed
Motion for Extension of Time to File Response/Reply (Dkt. No.
87); Plaintiff's Response (Dkt. No. 89); Defendant's
Reply (Dkt. No. 90); Plaintiff's Opposed Motion for Leave
to File Supplement (Dkt. No. 92); Plaintiff's
Sur-Response (Dkt. No. 93); and Plaintiff's Notice of
Fraud on the Court (Dkt. No. 94). The District Court referred
the above motions to the undersigned Magistrate Judge for
report and recommendation pursuant to 28 U.S.C.
§636(b)(1)(A), Fed.R.Civ.P. 72, and Rule 1(c) of
Appendix C of the Local Rules.
Alicia Cluck originally brought this suit in Texas state
court in 2008 against MetroCare Services-Austin, LP
(MetroCare) alleging negligence. Cluck was working as a
paramedic for MetroCare when, on December 24, 2006, Cluck
slipped when exiting an ambulance. She fell down several
steps and hit the ground. Cluck also alleges that she hit her
neck on the stairs as she fell. She informed her supervisor
at the time, but did not go to the hospital until later in
the day, where she was treated for contusions, a mild head
injury, and muscle strain. Shortly after this accident, Cluck
left MetroCare to work for a radiology center, and later a
pharmaceutical testing company. However, in August 2007,
Cluck allegedly collapsed in her home and complained of back,
right arm, hip, and neck pain, which led to more hospital and
doctor visits. In 2008, Cluck brought her suit against
MetroCare alleging these problems stemmed from the 2006 slip
unexplained reasons, the case sat in state court for years
until, in the summer of 2016, the case was set for trial.
However, shortly before the trial was scheduled, Cluck moved
to amend her pleadings to add a number of insurance companies
and claims to her lawsuit. The basis for these claims was
Cluck's allegation that MetroCare and its alleged
conspirators concealed from Cluck one or more insurance
policies that might have provided MetroCare coverage for
Cluck's claims. The state court denied the motion to
amend, so Cluck then filed a separate lawsuit asserting these
claims. The second lawsuit was removed to federal court on
the basis that Cluck's claims were preempted by ERISA.
MetroCare then removed the first lawsuit to federal court on
the same basis.The lawsuits were consolidated, and Cluck
filed an amended complaint resulting in the instant action.
the suit was removed to federal court, Judge Pitman issued an
order for an initial pre-trial conference. Dkt. No. 16. At
this conference, it became clear that the first dispute that
needed to be resolved related to Cluck's claim that one
or more insurance policies had been, or were being, concealed
by the defendants, and her demand that those policies be
produced. Judge Pitman ordered Cluck to raise that issue in a
motion, so Cluck filed a Motion to Compel, to which each of
the parties responded. Dkt. Nos. 26 & 34. The undersigned
denied the Motion to Compel on September 11, 2017. Dkt. No.
72. Shortly thereafter, Cluck stipulated to the dismissal of
all the defendants except the MetroCare entities. MetroCare
has now moved for summary judgment on Cluck's claims.
judgment shall be rendered when the pleadings, the discovery
and disclosure materials on file, and any affidavits show
that there is no genuine dispute as to any material fact and
that the moving party is entitled to judgment as a matter of
law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett,
477 U.S. 317, 323-25 (1986); Washburn v. Harvey, 504
F.3d 505, 508 (5th Cir. 2007). A dispute regarding a material
fact is “genuine” if the evidence is such that a
reasonable jury could return a verdict in favor of the
nonmoving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). When ruling on a motion for summary
judgment, the court is required to view all inferences drawn
from the factual record in the light most favorable to the
nonmoving party. Matsushita Elec. Indus. Co. v. Zenith
Radio, 475 U.S. 574, 587 (1986); Washburn, 504
F.3d at 508. Further, a court “may not make credibility
determinations or weigh the evidence” in ruling on a
motion for summary judgment. Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150 (2000);
Anderson, 477 U.S. at 254-55.
the moving party has made an initial showing that there is no
evidence to support the nonmoving party's case, the party
opposing the motion must come forward with competent summary
judgment evidence of the existence of a genuine fact issue.
Matsushita, 475 U.S. at 586. Mere conclusory
allegations are not competent summary judgment evidence, and
thus are insufficient to defeat a motion for summary
judgment. Turner v. Baylor Richardson Med. Ctr., 476
F.3d 337, 343 (5th Cir. 2007). Unsubstantiated assertions,
improbable inferences, and unsupported speculation are not
competent summary judgment evidence. Id. The party
opposing summary judgment is required to identify specific
evidence in the record and to articulate the precise manner
in which that evidence supports his claim. Adams v.
Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5th
Cir. 2006). If the nonmoving party fails to make a showing
sufficient to establish the existence of an element essential
to its case and on which it will bear the burden of proof at
trial, summary judgment must be granted. Celotex,
477 U.S. at 322-23.
seeks summary judgment on each of Cluck's claims. First,
it argues that there are no genuine issues of material fact
on Cluck's claim for negligence. Second, it contends that
Cluck's claims for negligent misrepresentation, breach of
contract, civil conspiracy, and fraudulent concealment are
preempted by ERISA and should be dismissed.
argues that the Court should grant summary judgment on
Cluck's claims for negligent misrepresentation, breach of
contract, civil conspiracy, and fraudulent concealment as
they are preempted by ...