Romo v. Ford Motor Co.

• Decision Date: 24 June 2011
• Docket Number: Civil Action No. B–10–66.
• Citation: 798 F.Supp.2d 798
• Parties: Johnny Ray ROMO, Plaintiff, v. FORD MOTOR COMPANY, Wal–Mart Stores, Inc., Uniroyal Tire Company, and Michelin North America, Inc., Defendants.
• Court: U.S. District Court — Southern District of Texas

798 F.Supp.2d 798

Johnny Ray ROMO, Plaintiff,

v.FORD MOTOR COMPANY, Wal–Mart Stores, Inc., Uniroyal Tire Company, and Michelin North America, Inc., Defendants.

Civil Action No. B–10–66.

United States District Court,S.D.Tex.,Brownsville Division.

June 24, 2011.

Savannah L. Robinson, Attorney at Law, Danbury, TX, for Plaintiff.

Thomas M. Bullion, III, Germer Gertz et al., Austin, TX, C. Thomas Valentine, Daw & Ray PC, Houston, TX, Jaime A. Drabek, Daw Ray LLP, Harlingen, TX, for Defendants.

ORDER

HILDA G. TAGLE, District Judge.

BE IT REMEMBERED, that on June 24, the Court DENIED Defendant Michelin North America's (“MNA”) Motion to Dismiss and Motion for Sanctions, Dkt. No. 43, GRANTED MNA's Motion for Summary Judgment, Dkt. No. 52, GRANTED Defendant Wal–Mart Stores Texas, LLC's (“Wal–Mart”) Motion for Summary Judgment, Dkt. No. 55, and DENIED AS MOOT MNA and Wal–Mart's Opposed Motion for Order Directing Plaintiff to Pay Reasonable Experts' Fees in Connection with any Depositions of MNA and Wal–Mart's Experts, Dkt. No. 53.

On or about March 10, 2008, Plaintiff was driving his employer's 2005 Ford Ranger. The tires had recently been replaced with Uniroyal Tires sold by a Wal–Mart store. Dkt. No. 1 at 2–3. According to Plaintiff's deposition, he heard a loud pop, experienced what he believed was a tire failure in part because he perceived the vehicle move to the left, believed he saw a vehicle coming head on with his vehicle and thus “jerked [the Ford Ranger] to the right.” Deposition of Johnny Ray Romo, 50:23–53:16, Dkt. No. 44, Ex. A–2. At that point, Plaintiff stated that he lay down in the seat because he was not wearing a seatbelt. Id. The vehicle rolled over and Plaintiff was thrown from it suffering an injury to his knee requiring surgery. Dkt. No. 1 at 3.

On March 10, 2010, Plaintiff filed his complaint and named Wal–Mart and MNA as defendants without differentiating between his claims against them. Plaintiff asserts that Wal–Mart and MNA should be held strictly liable for designing, manufacturing and/or marketing a tire that was defective. Dkt. No. 1 at 4. Plaintiff asserts Wal–Mart and MNA were negligent for (1) failing to warn of the dangers and defects associated with the tire; (2) placing an unreasonably dangerous tire into the stream of commerce; (3) failing to design the tire without adequate safety features and without a sufficient proportion of adequate antioxidant and antidegradants; (4) negligently servicing the vehicle; and (5) failing to properly inspect and test the tire. Id. at 4–5.

On April 9, 2010, Defendant Ford Motor Company (“Ford”) removed the above-named action to this Court from the 197th Judicial District Court of Willacy County. Dkt. No. 1. The current Scheduling Order was entered on August 25, 2010, and required Plaintiff to disclose his expert witness list with expert reports by April 1, 2011. Dkt. No. 24. Plaintiff failed to disclose any experts. On April 5, 2011, MNA filed its Motion to Dismiss and Motion for Sanctions asserting that Plaintiff's complaint is groundless and that, despite MNA's request, Plaintiff refused to dismiss his claims against MNA. Dkt. No. 43. On April 11, 2011, Plaintiff filed his Response. Dkt. No. 45. On May 5, 2011, MNA filed its Motion for Summary Judgment requesting that the Court first rule on its Motion to Dismiss and, alternatively, its Motion for Summary Judgment. Dkt. No. 52. On May 16, 2011, MNA and Wal–Mart filed their Motion for Order Directing Plaintiff to Pay Reasonable Expert Fees in Connection with any Depositions of MNA's Experts. Dkt. No. 53. On May 31, 2011, Wal–Mart filed its Motion for Summary Judgment, Dkt. No. 55.

I. MNA's Motion to Dismiss and Motion for Sanctions

In its Motion to Dismiss, MNA argues that Plaintiff's claims against MNA are “completely groundless.” Dkt. No. 43 at 2. MNA does not cite any case law or the Federal Rule of Civil Procedure under which it seeks dismissal. MNA argues that after its expert examined the tire, the “consulting expert found clear evidence that the subject tire did not fail prior to the accident at issue” and MNA concluded that “it is obvious that the damage to the accident tire was caused by the accident itself.” Id. at 1–2. MNA included photographs of the accident tire to support its motion. Id., Ex. A. MNA states that it provided Plaintiff with these photographs on February 12, 2011, and “requested that plaintiff dismiss his claims and that, if he did not do so within two weeks, MNA would seek sanctions.” Id. at 2. MNA requests sanctions under Federal Rule of Civil Procedure 11(b) asserting that Plaintiff's complaint constitutes a representation to the Court that the factual contentions have evidentiary support. Id. at 2–3. MNA argues that because it provided Plaintiff's counsel with photographs showing that the damage to the tire was caused by the accident rather than by a defect, Plaintiff's counsel knew that the claims against MNA lacked evidentiary support but refused to dismiss them. Id. at 3. MNA requests attorneys' fees and expenses, including expert witness fees, incurred since February 12, 2011. Id.

Plaintiff responded that MNA was not seeking a dismissal under any rule of the Federal Rules of Civil Procedure and that the proper motion would be one for summary judgment. Dkt. No. 45 at 1–2. Plaintiff further argues that summary judgment is not appropriate because the photographs of the tire do not explain how the damage to the tire would be attributed to damage either before the accident—due to a defect—or after the accident—due to the accident itself. Id. at 2. Plaintiff therefore argues that there are genuine issues of material fact. Id.

Although MNA does not state on which rule of the Federal Rules of Civil Procedure its motion is based, it states that Plaintiff's complaint is “completely groundless.” From this, the Court understands that MNA is moving to dismiss the complaint for failure to state a claim on which relief can be granted under Federal Rule of Civil Procedure 12(b)(6).¹ MNA has presented evidence, in the form of photographs of the accident tire, to support its motion. Pursuant to Rule 12(d), the Court must either exclude the photographs or treat the motion as one for summary judgment. Fed.R.Civ.P. 12(d). MNA made clear in its Motion for Summary Judgment that it intended its Motion to Dismiss not to be treated as a Motion for Summary Judgment. To the extent that MNA wishes the photographs to be used solely in support of its Motion for Sanctions, the Court notes that pursuant to Rule 11(c), a Motion for Sanctions must be filed separately from any other motion. Fed.R.Civ.P. 11(c). MNA combined its Motion for Sanctions with its Motion to Dismiss. Therefore, the Court DENIES MNA's Motion for Sanctions and EXCLUDES the photographs from the Motion to Dismiss.

A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) is “viewed with disfavor and is rarely granted.” Kennedy v. Tangipahoa Parish Library Bd. of Control, 224 F.3d 359, 365 (5th Cir.2000); Lowrey v. Texas A & M University System, 117 F.3d 242, 247 (5th Cir.1997) (quoting Kaiser Aluminum & Chemical Sales, Inc. v. Avondale Shipyards, 677 F.2d 1045, 1050 (5th Cir.1982)). Fifth Circuit law dictates that a district court must accept all well-pleaded facts as true and view them in the light most favorable to the plaintiff. See Baker v. Putnal, 75 F.3d 190, 196 (5th Cir.1996); see also Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir.2000). A complaint will not be dismissed “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); see also Baton Rouge Bldg. & Constr. Trades Council AFL–CIO v. Jacobs Constructors, Inc., 804 F.2d 879, 881 (5th Cir.1986). The Fifth Circuit has held, however, that dismissal is appropriate “if the complaint lacks an allegation regarding a required element necessary to obtain relief.” Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir.1995) (citation omitted).

The Court finds that Plaintiff's complaint survives a motion to dismiss for failure to state a claim. Under Supreme Court precedent, a motion to dismiss should not be granted if a complaint provides “enough facts to state a claim to relief that is plausible on its face.” MySpace, Inc., 528 F.3d at 418 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)); see also Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949–50, 173 L.Ed.2d 868 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. 1937, 1949. “Where a complaint pleads facts that are ‘merely consistent with’ a defendant's liability, it stops short of the line between possibility and plausibility of ‘entitlement to relief.’ ” Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955).

Assuming the facts alleged by Plaintiff in his complaint are true, the Court finds the claim that MNA is liable for Plaintiff's accident under theories of products liability or negligence regarding the manufacturing, design, and warning of the accident tire is plausible. Plaintiff's complaint states the facts on which his claim is based and those facts support a reasonable inference that MNA is liable for Plaintiff's damage.

II. Motions for Summary Judgment

Summary judgment is appropriate when the movant has established that the pleadings, affidavits, and other evidence available to the Court demonstrate that no genuine issue of material fact exists, and the movant is thus entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Piazza's Seafood World, LLC v. Odom, 448 F.3d 744, 752 (5th Cir.2006); Lockett v. Wal–Mart Stores, Inc., 337 F.Supp.2d 887, 891 (E.D.Tex.20...