Amparan v. Demir

• Decision Date: 13 February 2017
• Docket Number: No. 1:15–cv–00045 WJ/GJF,1:15–cv–00045 WJ/GJF
• Citation: 234 F.Supp.3d 1110
• Parties: Edmundo AMPARAN and Kimberly L. Amaparan, Plaintiffs, v. Mevlut Berk DEMIR, Denizcan Karadeniz, Avis Rent A Car System, LLC, Lake Powell Car Rental Companies, an Arizona Limited Liability Company, PV Holding Corporation, a Delaware Corporation, Defendants.
• Court: U.S. District Court — District of New Mexico

234 F.Supp.3d 1110

Edmundo AMPARAN and Kimberly L. Amaparan, Plaintiffs,

v.Mevlut Berk DEMIR, Denizcan Karadeniz, Avis Rent A Car System, LLC, Lake Powell Car Rental Companies, an Arizona Limited Liability Company, PV Holding Corporation, a Delaware Corporation, Defendants.

No. 1:15–cv–00045 WJ/GJF

United States District Court, D. New Mexico.

Signed February 13, 2017

Kurt Wihl, Thomas C. Bird, Christina Muscarella Gooch, Keleher & McLeod, P.A., Albuquerque, NM, Plaintiff.

Christopher P. Winters, Allen, Shepherd, Lewis, Syra & Chapman, P.A., Nathan B. Anderson, Allen Shepherd Lewis & Syra PA, Jonathan A. Garcia, Robert Gentile, Terry R. Guebert, Guebert Bruckner PC, Aaron Randall Kugler, Albuquerque, NM, for Defendant.

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT LAKE POWELL CAR RENTAL COMPANIES' MOTION FOR SUMMARY JUDGMENT AND DENYING AS MOOT LAKE POWELL'S MOTION TO STRIKE PLAINTIFFS' RESPONSE AND LAKE POWELL'S MOTION TO STRIKE EXPERT REPORT OF JAMES S. TENNANT

William P. Johnson, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on three of Defendant Lake Powell Car Rental Companies' motions: Motion for Summary Judgment filed November 4, 2016 (Doc. 105 ); Motion to Strike Plaintiff's Response in Opposition to Lake Powell's Motion for Summary Judgment (Doc. 117), or Portions Thereof filed January 11, 2017 (Doc. 124 ); and Motion to Strike Expert Report of James S. Tennant and to Exclude James S. Tennant from Testifying filed January 11, 2017 (Doc. 125 ). Having reviewed the relevant pleadings and the applicable law, and having considered the oral arguments of counsel presented at the hearing on February 8, 2017, the Court finds the Motion for Summary Judgment is well-taken, and is therefore GRANTED. As a result of the Court granting the Motion for Summary Judgment, the Motions to Strike are DENIED AS MOOT.

BACKGROUND

I. Undisputed Facts¹

This litigation arises from a car accident that occurred on July 14, 2014, in Albuquerque, New Mexico. As a result of the accident, Plaintiffs Edmundo Amparan and Kimberly L. Amparan allege personal injury due to negligence; negligence per se ; negligent entrustment; negligent supervision and training; mandatory statutory liability; and loss of consortium.

Defendant Lake Powell Car Rental Companies ("Lake Powell") is a licensee of Defendant Avis Rent A Car System, LLC ("Avis"). Lake Powell is a sole member limited liability company organized under the laws of Arizona and located in Page, Arizona. Paul David Williams is the sole member and owner of Lake Powell. Lake Powell operates under an Exclusive License Agreement with Avis, which entitles Lake Powell to use Avis' trade name, trademark, and business operating system, and obligates Lake Powell to operate its business in compliance with the Avis Systems Operation Manual. Lake Powell does not have any employees other than the owner, Mr. Williams.²

On July 14, 2014, Lake Powell and Defendant Denizcan Karadeniz entered into a car rental transaction. Mr. Karadeniz rented two vehicles, a Dodge Caravan and a Ford Mustang. Mert Tacir, who accompanied Mr. Karadeniz, completed an "additional driver" application and Lake Powell allowed Mr. Tacir to operate the Ford Mustang. Mr. Tacir was the only authorized additional driver. Mr. Karadeniz and Mr. Tacir both presented facially-valid Turkish drivers' licenses to Mr. Williams when renting the vehicles. Both drivers were under age 25. Mr. Karadeniz also presented a valid credit card. Mr. Karadeniz told Mr. Williams he was renting the cars so that he and his group could go sightseeing. Mr. Karadeniz stated he planned to return the cars the following day to Lake Powell.

Following the rental transaction, Mr. Karadeniz and Mr. Tacir, together with Mevlut Berkay Demir and some other individuals, travelled to New Mexico in the two rental cars. At some point during their trip, Mr. Demir was permitted to drive the Ford Mustang and he collided with Mr. Amparan's motorcycle at the intersection of Comanche and Wyoming in Albuquerque. Mr. Demir allegedly failed to yield to the green light when making a left turn in front of Mr. Amparan. Mr. Amparan's motorcycle did not collide with the Dodge Caravan driven by Mr. Karadeniz.

After the accident, Mr. Demir testified that he did not know that a driver turning left against a green light must yield to oncoming traffic. Mr. Demir was 21 years old.

Mr. Williams explained that he does not typically rent vehicles to drivers under age 25, but he has done so in the past. He explained to Mr. Karadeniz and Mr. Tacir that they were the only two in the group authorized to drive. Mr. Demir testified, however, that he understood he was permitted to drive.³

Avis' standards for qualifying customers for rentals require that renters be at least 25 years of age, though there are exceptions to this rule and a manager can override the 25–year age requirement. Avis' representative Ryan Honig testified that Avis franchisees such as Lake Powell retain ultimate discretion whether to rent a vehicle to a customer, including a customer under age 25, although Avis can provide guidance on the driver qualification procedures. Plaintiffs state that Avis' rules do not allow a renter under the age of 25 and that no exceptions applied to this case, so Lake Powell violated Avis' policies.⁴

Finally, Plaintiffs attach to their Response the report of James S. Tennant, an expert in the vehicle rental industry. Mr. Tennant opines that the "failure to properly qualify potential renters will result in danger to the public by having irresponsible and potentially dangerous persons driving rental cars." Doc. 117–5 at 2. Mr. Tennant further explains that "many rental businesses in the industry will only rent to persons over 25 years of age" because "drivers over 25 are safer." Id. Drivers under 25 are more frequently involved in accidents. Thus, Lake Powell acted in a manner that failed to meet vehicle rental industry standards, which resulted in an increased risk to the public. Id. at 2–3. Lake Powell and Avis were negligent in failing to have "clear procedures and policies" on qualifying renters. See id. at 3.

Count III of Plaintiffs' Amended Complaint alleges Lake Powell negligently entrusted the vehicles to Mr. Karadeniz, Mr. Tacir, and Mr. Demir. Count IV states Lake Powell negligently trained and supervised employees, which caused the subject accident. Count VII alleges loss of consortium. Lake Powell filed a Motion for Summary Judgment on these claims on November 4, 2016 (Doc. 105). Plaintiffs filed a Response on December 13, 2016 (Doc. 117). Lake Powell filed a Reply on January 12, 2017 (Doc. 127).

Lake Powell also filed a Motion to Strike Plaintiff's Response in Opposition to Lake Powell's Motion for Summary Judgment (Doc. 117), or Portions Thereof on January 11, 2017 (Doc. 124), and Motion to Strike Expert Report of James S. Tennant (Doc. 117–5), and to Exclude James S. Tennant From Testifying as an Expert on January 11, 2017 (Doc. 125).

II. Evidentiary Issues

Before discussing the merits, the Court offers some constructive criticism to Plaintiffs' counsel regarding the Response to Lake Powell's Motion for Summary Judgment. Specifically, the Court's local rule for summary judgment responses states:

The Response must contain a concise statement of the material facts cited by the movant as to which the non-movant contends a genuine issue does exist. Each fact in dispute must be numbered, must refer with particularity to those portions of the record upon which the non-movant relies, and must state the number of the movant's fact that is disputed. All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted. The Response may set forth additional facts other than those which respond to the Memorandum which the non-movant contends are material to the resolution of the motion. Each additional fact must be lettered and must refer with particularity to those portions of the record upon which the non-movant relies.

D.N.M.LR–Civ. 56.1(b) (emphasis added). Plaintiffs state they do not dispute two of Lake Powell's Undisputed Material Facts ("UMF"), Nos. 2 and 14, but then go on to offer additional facts in violation of Rule 56.1(b) and Federal Rule of Civil Procedure 56(c)(1)(A) by referring to their Additional Material Facts ("AMF") section. In the Court's view, Plaintiffs improperly add facts in their response to Defendant's UMF, which violates Rule 56.1(b). Thus, the Court will not consider these improper additional factual recitations.

Second, the Court points out the numerous flaws with Plaintiffs' AMFs in further violation of Rule 56.1(b) and Federal Rule of Civil Procedure 56(c). The purpose of those rules is to isolate additional facts so that the moving party can determine which facts require a response. Plaintiffs add an additional 45 facts that span nine pages. The vast majority of these facts are immaterial, irrelevant, contain hearsay statements, attempt to assert the subjective thoughts of others as "facts," and constitute assertions regarding others' motives or beliefs. For example, AMF No. 3 states, "Mr. Demir understood that the reason for the inquiry ‘was so that they would know I was one of the drivers." Doc. 117 at 5. AMF No. 5 states, "Mr. Demir believed that he was authorized to drive the rented vehicles." Id. AMF No. 14 asserts, "Mr. Williams believed that younger drivers pose a greater risk for accidents because of their inexperience." The Court has disregarded all such statements of "fact" that are not supported by admissible evidence in the record, or that do not represent information grounded in personal knowledge but are instead statements of mere belief. A properly supported summary judgment motion will not be defeated by speculative inferences, conclusory allegations, or mere conjecture. Bones v. Honeywell Int'l, Inc. , 366 F.3d 869, 875 (10th Cir. 2004). "Testimony which is grounded on speculation does not suffice to create a...