United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
Lindsay United States District Judge
the court is Defendant’s Motion for Partial Summary
Judgment (Doc. 43), filed September 21, 2018. After careful
consideration of the motion, response,  record, and
applicable law, the court denies
Defendant’s Motion for Partial Summary Judgment (Doc.
Procedural and Factual Background
action arises from a vehicular accident that occurred near
the interchange between Interstate Highway 20 East and
Interstate Highway 635 North in Balch Springs, Texas, on
April 27, 2015. Michele Bailon (“Plaintiff” or
“Ms. Bailon”) originally filed this action on
March 4, 2016, in the 44th Judicial District Court of Dallas
County, Texas, against Landstar Ranger, Inc.,
(“Landstar”) and Camara Percival, Jr. (“Mr.
Percival”) for negligence, negligence per se, and gross
Bailon contends that Mr. Percival, while acting within the
course and scope of his employment with Landstar, was
negligent, negligent per se, and grossly negligent when his
vehicle violently collided with her vehicle on April 27,
2015. She contends that she sustained severe injuries, and
she seeks compensation for her injuries.
removed the action to federal court on April 15, 2016,
contending that complete diversity of citizenship existed
between the parties and that the amount in controversy,
exclusive of interest and costs, exceeded $75, 000. Ms.
Bailon disputed whether complete diversity of citizenship
existed between the parties. The court ultimately ruled that
complete diversity of citizenship existed between the
denies Ms. Bailon’s claims of negligence, negligence
per se, and gross negligence. It also contends that it is not
liable to her for any injuries that she may have suffered.
Further, Landstar seeks summary judgment on her claims for
exemplary or punitive damages, as it contends that she has
not presented any evidence to establish a genuine dispute of
material fact to show that gross negligence exists to award
exemplary or punitive damages.
Bailon disagrees. She contends that sufficient evidence in
the record exists to raise a genuine dispute of material fact
regarding her entitlement to exemplary or punitive damages
and that the court should deny Landstar’s motion for
partial summary judgment. The court agrees with Plaintiff.
Motion for Summary Judgment Standard
judgment shall be granted when the record shows 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); Ragas v. Tennessee Gas
Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). 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 facts and inferences in the light most
favorable to the nonmoving party and resolve all disputed
facts in favor of the nonmoving party. Boudreaux v. Swift
Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005).
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
dispute of material fact. Matsushita Elec. Indus. Co. v.
Zenith Radio, 475 U.S. 574, 586 (1986). On the other
hand, “if the movant bears the burden of proof on an
issue, either because he is the plaintiff or as a defendant
he is asserting an affirmative defense, he must establish
beyond peradventure all of the essential elements of
the claim or defense to warrant judgment in his favor.”
Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th
Cir. 1986) (emphasis in original). “[When] the record
taken as a whole could not lead a rational trier of fact to
find for the nonmoving party, there is no ‘genuine
[dispute] for trial.’” Matsushita, 475
U.S. at 587. (citation omitted). Mere conclusory
allegations are not competent summary judgment evidence, and
thus are insufficient to defeat a motion for summary
judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th
Cir. 1996). Unsubstantiated assertions, improbable
inferences, and unsupported speculation are not competent
summary judgment evidence. See Forsyth v. Barr, 19
F.3d 1527, 1533 (5th Cir. 1994).
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 or her claim.
Ragas, 136 F.3d at 458. Rule 56 does not impose a
duty on the court to “sift through the record in search
of evidence” to support the nonmovant’s
opposition to the motion for summary judgment. Id.;
see also Skotak v. Tenneco Resins, Inc., 953 F.2d
909, 915-16 & n.7 (5th Cir. 1992). “Only disputes
over facts that might affect the outcome of the suit under
the governing laws will properly preclude the entry of
summary judgment.” Anderson, 477 U.S. at 248.
Disputed fact issues that are “irrelevant and
unnecessary” will not be considered by a court in
ruling on a summary judgment motion. Id. 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.
has correctly stated the legal standard to recover for
exemplary or punitive damages under Texas law; however, the
court disagrees that summary judgment is appropriate
regarding Ms. Bailon’s claim of gross negligence. This
is so because there are genuine disputes of material fact
regarding what actually happened on April 27, 2015. The court
has read the relevant depositions. Based on the court’s
review, there is definitely a conflict in the testimony
regarding important facts, and the credibility of the persons
deposed, and any other witness who testifies in this action,
must be determined by the jury. As stated previously, a court
“may not make credibility determinations or weigh the
evidence” in deciding a motion for summary judgment.
Reeves, 530 U.S. at 150; Anderson, 477 U.S.
at 254-55. In this case, Ms. Bailon’s testimony is at
odds with that of alleged eyewitness Mr. Frank Albanese, who,
from what the court can ascertain by reading his deposition,
did not observe the entire collision or what led up to it.
Moreover, his testimony is at odds in part, with that of
Christopher Cortemelia, the police officer who investigated
the accident. Further, the court, at this juncture, has some
questions or ...