Mutuba v. Halliburton Co.

• Decision Date: 10 May 2013
• Docket Number: Civil Action No. H–11–2318.
• Citation: 949 F.Supp.2d 677
• Parties: Pascio MUTUBA, Plaintiff, v. HALLIBURTON CO. et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

949 F.Supp.2d 677

Pascio MUTUBA, Plaintiff,

v.HALLIBURTON CO. et al., Defendants.

Civil Action No. H–11–2318.

United States District Court,

S.D. Texas,

Houston Division.

May 10, 2013.

David Kasanow, Megan Kinsey–Smith, McKenna Long et al., Washington, DC, Margaret Twomey Brenner, Schirrmeister Diaz–Arrastia Bremm LLP, Houston, TX, for Plaintiff.

ORDER

DAVID HITTNER, District Judge.

Pending before the Court is Defendants' Motion for Summary Judgment (Document No. 97) and Defendants' Motion to Dismiss (Document No. 101). Having considered the motions, submissions, and applicable law, the Court finds that the motions should be granted.

I. BACKGROUND

This personal injury action arises from an auto-pedestrian accident that occurred at a military base in Iraq during the summer of 2009. In February 2009, Plaintiff Pascio Mutuba (“Plaintiff”), a citizen of Uganda, began working as a security guard at Forward Operating Base Prosperity (“Camp Prosperity”), a United States military installation in the International Zone of Baghdad, Iraq. As part of his duties, Plaintiff was responsible for performing inspections of vehicles seeking entry into Camp Prosperity. On June 28, 2009, Plaintiff approached a truck at the entry control point to Camp Prosperity to conduct an inspection. During his investigation, the truck moved forward and ran over Plaintiff, causing him serious and permanent injuries, including the loss of his left arm at the shoulder.

On June 17, 2011, Plaintiff commenced this action against Defendants Halliburton Company; KBR, Inc.; KBR Holdings, LLC; KBR Group Holdings, LLC; Kellogg Brown & Root LLC; Kellogg Brown & Root International, Inc.; Kellogg Brown & Root Services, Inc.; KBR USA LLC; Service Employees International, Inc.; and Overseas Administrative Services, Ltd. (collectively, “Defendants”). According to Plaintiff, the truck involved in the accident was owned by Defendants and driven by one of Defendants' employees. Plaintiff's Complaint alleges claims for negligence; gross negligence; negligent hiring, training, and supervision; res ipsa loquitur; and respondeat superior.

On November 28, 2012, Plaintiff's counsel filed a motion to withdraw as counsel for Plaintiff, “based on good cause and upon a fundamental disagreement and ethical reasons surrounding the attorney-client relationship.” ¹ The Court granted the motion, and Plaintiff proceeded pro se. Following several requests by Defendants for various discovery, and Plaintiff's failure to respond, Defendants moved the Court for a motion to compel deposition, which the Court granted on January 16, 2013. The Court ordered Plaintiff, within ten days from the entry of the Order, to “provide Defendants' counsel at least three alternative dates before February 28, 2013, on which Plaintiff, Pascio Mutuba, will be available in Houston, Texas, to give his deposition.” ² To date, Plaintiff has failed to comply with the Court's Order.

Currently pending before the Court are two dispositive motions—on January 28, 2013, Defendants filed a motion for summary judgment, and on February 5, 2013, Defendants filed a motion to dismiss. Defendants seek a full dismissal with prejudice of all claims pending against them.

Plaintiff did not respond on the record to the motion for summary judgment. Instead, Plaintiff sent correspondence by mail directly to the Court and the U.S. Department of Labor. The Court entered both letters onto the electronic docket.³ The Court subsequently issued an Order noting that “Plaintiff has failed to comply with the Orders of this Court and has failed to respond to discovery” and ordering Plaintiff to “file a response to Defendants' Motion to Dismiss on or before March 13, 2013.” ⁴ On March 12, 2013, Defendants filed, on the record, a response to recent off-the-record communications by Plaintiff, to which Plaintiff responded on April 1, 2013. ⁵ On April 10, 2013, the Court received from Plaintiff a response to Defendants' motion to dismiss. Although Plaintiff's filings with the Court have been largely incomprehensible in the time that he has proceeded pro se, the Court nonetheless will construe the attached purported evidentiary documentation to Plaintiff's pro se response to Defendants' motion to dismiss as purported summary judgment evidence.

II. STANDARD OF REVIEW

Summary judgment is proper when “there is no genuine issue as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed. R. CIV. P. 56(a). The court must view the evidence in a light most favorable to the nonmovant. Coleman v. Hous. Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir.1997). Initially, the movant bears the burden of presenting the basis for the motion and the elements of the causes of action upon which the nonmovant will be unable to establish a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the nonmovant to come forward with specific facts showing there is a genuine issue for trial. SeeFed.R.Civ.P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). “A dispute about a material fact is ‘genuine’ if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 956 (5th Cir.1993) (citation omitted).

But the nonmoving party's bare allegations, standing alone, are insufficient to create a material issue of fact and defeat a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Moreover, conclusory allegations unsupported by specific facts will not prevent an award of summary judgment; the plaintiff cannot rest on his allegations to get to a jury without any significant probative evidence tending to support the complaint. Nat'l Ass'n of Gov't Emps. v. City Pub. Serv. Bd. of San Antonio, 40 F.3d 698, 713 (5th Cir.1994). If a reasonable jury could not return a verdict for the nonmoving party, then summary judgment is appropriate. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505. The nonmovant's burden cannot be satisfied by conclusory allegations, unsubstantiated assertions, or “only a scintilla of evidence.” Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir.2007) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994)). Furthermore, it is not the function of the court to search the record on the nonmovant's behalf for evidence which may raise a fact issue. Topalian v. Ehrman, 954 F.2d 1125, 1137 n. 30 (5th Cir.1992). Therefore, “[a]lthough we consider the evidence and all reasonable inferences to be drawn therefrom in the light most favorable to the nonmovant, the nonmoving party may not rest on the mere allegations or denials of its pleadings, but must respond by setting forth specific facts indicating a genuine issue for trial.” Goodson v. City of Corpus Christi, 202 F.3d 730, 735 (5th Cir.2000) (quoting Rushing v. Kansas City S. Ry. Co., 185 F.3d 496, 505 (5th Cir.1999)).

“Courts construe pleadings filed by pro se litigants under a less stringent standard than those filed by attorneys.” White v. Briones, No. H–09–2734, 2011 WL 66134, at *3 (S.D.Tex. Jan. 7, 2011) (Rosenthal, J.) (citing Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)). Accordingly, the pleadings of pro se litigants are liberally construed. Id. However, “pro se parties must still comply with the rules of procedure and make arguments capable of withstanding summary judgment.” Id. (quoting Ogbodiegwu v. Wackenhut Corr. Corp., 202 F.3d 265 (5th Cir.1999) (per curiam) (unpublished table decision)).

III. LAW & ANALYSIS

A. Negligence

Defendants argue that Plaintiff's negligence claims must fail because the summary judgment evidence affirmatively shows that Defendants did not owe a legal duty to Plaintiff. The elements of negligence under Texas law ⁶ are: (1) the defendant owed a duty to plaintiff; (2) the defendant breached that duty; and (3) the defendant's breach proximately caused the plaintiff's injuries. Espinoza v. Cargill Meat Solutions Corp., 622 F.3d 432, 443 (5th Cir.2010) (citing IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex.2004)). Whether a legal duty exists is a threshold question of law for the court to decide. Boudreaux v. Swift Transp. Co., 402 F.3d 536, 541 (5th Cir.2005) (citing Thapar v. Zezulka, 994 S.W.2d 635, 637 (Tex.1999)).

Although normally the determinative inquiry as to whether a legal duty exists is foreseeability,⁷Id., certain relationships do impose duties upon parties as a matter of law. See Otis Eng'g Corp. v. Clark, 668 S.W.2d 307, 309–10 (Tex.1983). “Under Texas law, in the absence of a relationship between the parties giving rise to the right of control, one person is under no legal duty to control the conduct of another, even if there exists the practical ability to do so.” Loram Maint. of Way, Inc. v. Ianni, 210 S.W.3d 593, 596 (Tex.2006). In the context of independent contractors, “an employer can be held liable for the actions of his independent contractor if the employer retains some control over the manner in which the contractor performs the work that causes the injury.” Townsend v. Goodyear Tire & Rubber Co., 481 F.Supp.2d 610, 616 (N.D.Tex.2007) (citing Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788, 791 (Tex.2006)). For an employer to be held liable for negligence, “its supervisory control must relate to the condition or activity that caused the injury ... [such that] the scope of such duty toward independent contractors is limited to the scope of its retained supervisory control.” Id. at 616–17 (emphasis omitted). Moreover, “a defendant has no legal duty to protect the plaintiff from the acts of a third person.” Ondris v. Rossington, No. 3:98–CV–1677X, 1999 WL 558572, at *2 (N.D.Tex. July 30, 1999).

Defendants present summary judgment...