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Cluck v. Metrocare Svcs-Austin, L.P.

United States District Court, W.D. Texas, Austin Division

December 15, 2017

ALICIA CLUCK
v.
METROCARE SVCS-AUSTIN, L.P., et al.

          HONORABLE ROBERT PITMAN UNITED STATES DISTRICT JUDGE.

          ORDER AND REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          ANDREW W. AUSTIN UNITED STATES MAGISTRATE JUDGE.

         Before 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.

         I. GENERAL BACKGROUND

         Plaintiff 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 and fall.

         For 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.[1] 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.[2]The lawsuits were consolidated, and Cluck filed an amended complaint resulting in the instant action.

         After 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.

         II. LEGAL STANDARD

         Summary 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.

         Once 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.

         III. ANALYSIS

         MetroCare 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.

         A. ERISA Preemption

         MetroCare 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 ...


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