Morris v. Giant Four Corners, Inc.
| Decision Date | 27 March 2019 |
| Docket Number | No. 1:15-cv-00055-JCH-LF,1:15-cv-00055-JCH-LF |
| Citation | 378 F.Supp.3d 1040 |
| Parties | Franklin J. MORRIS, as Personal Representative of the Wrongful Death Estate of Marcellino Morris, Jr., (Deceased), Plaintiff, v. GIANT FOUR CORNERS, INC. d/b/a Giant #7251 and Andy Ray Denny, an Individual, Defendants. |
| Court | U.S. District Court — District of New Mexico |
Zackeree S. Kelin, Davis Kelin Law Firm, LLC, Gina V. Downes, Doughty Alcaraz & deGraauw, PA, Albuquerque, NM, for Plaintiff.
Andrew G. Schultz, Rodey Dickason Sloan Akin & Robb, P.A., Albuquerque, NM, for Defendants.
This matter is before the Court on Defendant Giant Four Corners, Inc. d/b/a Giant # 7251's Opposed Motion for Judgment on the Pleadings under Federal Rule of Civil Procedure 12(c) [ECF No. 90 ] and Defendant's Opposed Motion to Compel Election of Remedies or Dismiss for Improper Claim Splitting [ECF No. 91 ]. After carefully considering the motions, briefs, parties' arguments and relevant law, the Court rules as described herein.
On December 30, 2011, Marcellino Morris, Jr. was tragically was killed in an automobile collision with Defendant Andy Ray Denny. Plaintiff Mr. Franklin J. Morris, Personal Representative of the Decedent's estate, contends that Defendant Giant is liable for Decedent's death under two theories of negligence – specifically, negligent entrustment based on Defendant's sale of gasoline to Mr. Denny, who was allegedly visibly intoxicated, and negligent hiring, training, and supervision of the employees who sold the gasoline to Mr. Denny.
Plaintiff originally filed a lawsuit in the District Court of the Navajo Nation in Crownpoint, New Mexico. In that court, Defendant moved for and obtained summary judgment on the ground that Plaintiff's suit was time-barred under the Navajo Nation's two-year statute of limitations for personal injury claims, 7 N.N.C. § 602(A)(1). Plaintiff appealed the Navajo district court's decision to the Navajo Nation Supreme Court and that appeal is still pending. Before the Navajo district court issued its decision, Plaintiff filed an identical wrongful death complaint in New Mexico state district court against Defendant alleging vicarious liability for negligent entrustment of a chattel (Count I) and direct liability for negligent hiring, training, and supervision (Count II). Plaintiff also asserted a cause of action for negligence and negligence per se against Mr. Denny (Count III). However, Mr. Denny was dismissed as a party. See Dkt. No. 9. In January 2015, Defendant removed the state case to this Court based on the parties' diversity of citizenship under 28 U.S.C. § 1332.
In November 2015, Defendant moved to dismiss Plaintiff's complaint under Federal Rule of Civil Procedure 12(b)(6), or, in the alternative to stay the case pending Plaintiff's exhaustion of tribal court remedies, arguing the case should be precluded under the doctrine of res judicata. During the same period, Plaintiff moved for partial summary judgment on Count I of his complaint (negligent entrustment), arguing that Plaintiff was entitled to judgment as a matter of law that Defendant negligently entrusted gasoline to Mr. Denny because he was intoxicated. The Court stayed the case for one-year – until November 29, 2016 – when, although the Navajo Nation Supreme Court had not yet issued a decision, the parties asked the Court to lift the stay and decide the pending Rule 12(b)(6) motion.
In September 2017, the Court issued its ruling on the Rule 12(b)(6) motion against Defendant, concluding that the Navajo district court's dismissal on statute of limitations grounds had no preclusive effect on the federal case. See ECF No. 64. In March 2018, the Court denied Plaintiff's partial motion for summary judgment on negligent entrustment. See ECF No. 79. In that Memorandum Opinion and Order, the Court assumed without deciding that Defendant owed Plaintiff a duty of care to refrain from selling gasoline to an intoxicated Mr. Denny, but concluded that genuine disputes of material about whether Ms. Gloria Pine, Defendant's employee who sold Mr. Denny gasoline, knew Mr. Denny was intoxicated precluded entry of summary judgment in Plaintiff's favor.
About two months later, in May 2018, Defendant filed the pending two motions now before the Court. In its motion for judgment on the pleadings on Plaintiff's negligent entrustment claim, Defendant argues that Plaintiff failed to state a claim upon which relief can be granted because New Mexico law imposes no duty of care on Defendant to refrain from selling gasoline to intoxicated third-persons. And in its motion to compel Plaintiff to elect remedies, or, alternatively to dismiss Plaintiff's complaint for improper claim splitting, Defendant contends that under the doctrine of election of remedies Plaintiff is barred from carrying this and the Navajo Nation lawsuits to judgment. Because Plaintiff has no right to "double recovery" of damages in two courts on two identical complaints, Defendant contends that "Plaintiff must elect the forum in which he will proceed."
Def.'s Mot. to Compel at 6. Alternatively, if the Court denies Defendant's motion to compel Plaintiff to elect remedies, then Defendant asks the Court to dismiss the federal complaint on the theory that Plaintiff has impermissibly engaged in "claim splitting" of his claims between federal and tribal courts.
The Court will first address Defendant's motion for election of remedies, or, alternatively, to dismiss for improper claim-splitting and then analyze Defendant's motion for judgment on the pleadings regarding Plaintiff's claim for negligent entrustment.
According to Defendant, Plaintiff's tribal and federal complaints have both asserted "money damages ... in an amount to be determined at trial to be both just and reasonable." Def.'s Mot. to Compel at 2 (). Defendant contends that "[i]f Plaintiff is permitted to maintain both the present case and the pending Navajo Nation lawsuit and carry them both to judgment, then he would be attempting to secure two awards for the same wrong," and therefore asks the Court to "compel Plaintiff to choose the forum in which he intends to proceed." Def.'s Mot. to Compel at 1, 3.
The election of remedies doctrine "refers to situations where an individual pursues remedies that are legally or factually inconsistent," and operates to "prevent[ ] a party from obtaining double redress for a single wrong." Alexander v. Gardner–Denver Co. , 415 U.S. 36, 49, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), abrogated on other grounds by Law v. Siegel , 571 U.S. 415, 134 S.Ct. 1188, 188 L.Ed.2d 146 (2014). New Mexico's election of remedies law governs this diversity jurisdiction dispute. See McKinney v. Gannett Co. , 817 F.2d 659, 671 (10th Cir. 1987). Under New Mexico law "[t]he doctrine means if a party has two inconsistent existing remedies on his cause of action and makes choice of one, he is precluded from thereafter pursuing the other." Romero v. J. W. Jones Const. Co. , 1982-NMCA-140, ¶ 18, 98 N.M. 658, 661, 651 P.2d 1302, 1305 (citations and internal quotation marks omitted). Or as the New Mexico Supreme Court has described the doctrine in another case: "where two inconsistent or alternative rights or claims are presented to the choice of a party, by a person who manifests the clear intention that he should not enjoy both, then he must accept or reject one or the other; and so, in other words, that one cannot take a benefit under an instrument and then repudiate it." Three Rivers Land Co. v. Maddoux , 1982-NMSC-111, ¶ 16, 98 N.M. 690, 693, 652 P.2d 240, 243, overruled on other grounds by Universal Life Church v. Coxon , 1986-NMSC-086, ¶ 16, 105 N.M. 57, 728 P.2d 467. The doctrine "exists to prevent double recovery for a single wrong." Chavarria v. Fleetwood Retail Corp. of New Mexico , 2005-NMCA-082, ¶ 6, 137 N.M. 783, 789, 115 P.3d 799, 805, reversed in part on other grounds by Chavarria v. Fleetwood Retail Corp. , 2006-NMSC-046, ¶ 6, 140 N.M. 478, 143 P.3d 717.
For instance, under the doctrine a prevailing breach of contract plaintiff cannot receive both damages on the contract and the remedy of rescission because "to receive damages a plaintiff must affirm the contract, but in order to get a remedy of rescission, a plaintiff must disaffirm the contract."
Medcom Holding Co. v. Baxter Travenol Labs., Inc. , 984 F.2d 223, 228 (7th Cir. 1993). "[T]he remedies are mutually exclusive, and the party seeking relief must elect one of them." Chavarria , 2005-NMCA-082 at ¶ 6, 137 N.M. 783, 115 P.3d 799. See also Teutscher v. Woodson , 835 F.3d 936, 956 (9th Cir. 2016) (); Medcom Holding Co., 984 F.2d at 229 ().
Here, the doctrine finds no application to the facts. Plaintiff did not plead inconsistent theories or seek inconsistent remedies as between this lawsuit and the one pending in the Navajo district court. Rather, Plaintiff pleaded and sought identical theories of recovery and remedies in two different courts. Certainly, Defendant is correct that Plaintiff cannot receive double recovery for a single injury. See Chavarria , 2005-NMCA-082 at ¶ 6, 137 N.M. 783, 115 P.3d 799. But Plaintiff will not enjoy a double recovery because of the application of an entirely different legal doctrine: res judicata , which "prevents a party or its privies from repeatedly suing another party for the same cause of action when the first suit...
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Morris v. Giant Four Corners, Inc.
...pointed out earlier in this litigation, "[Defendant's] sale of gasoline to Mr. Denny violated no law." Morris v. Giant Four Corners, Inc. , 378 F. Supp. 3d 1040, 1054 (D.N.M. 2019). The majority also acknowledges that no statute prohibited this sale. Maj. op. ¶ 28. In my view, the absence o......
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