Saenzpardo v. United Framing Constr. Co.
| Decision Date | 21 October 2011 |
| Docket Number | CIVIL ACTION NO. 10-00049-CG-M |
| Parties | STEVE SAENZPARDO, Plaintiff, v. UNITED FRAMING CONSTRUCTION COMPANY, INC. and MATTHEW DAVID NERO, Defendants. |
| Court | U.S. District Court — Southern District of Alabama |
This matter is before the court on defendant, United Framing Construction Company, Inc.'s, motion for summary judgment. (Doc. 58). The parties have filed briefs and filed evidentiary materials in support of their respective positions (Docs. 58-1, 101, 102 and 103), and the motion is now ripe for resolution. After careful consideration of the foregoing, the court concludes that the motion is due to be GRANTED.
In the early morning hours of June 2, 2008, a vehicle owned and driven by the co-defendant, Matthew Nero, struck and injured the plaintiff, Steve Saenzpardo, while Saenzpardo was walking along Alabama Highway 59. (Doc. 101, p. 1), (Doc. 58-5, p. 18). Nero is a carpenter from Malvern, Ohio, and was in Baldwin County to work for co-defendant, United Framing Construction Company, Inc. ("UFC"), on the construction of the Whispering Pines apartment complex in Daphne, Alabama (the"Whispering Pines project"). Id. While working on the Whispering Pines project, Nero lived with his supervisor, William Ruthe, a UFC superintendent who also worked on the Whispering Pines project, in housing paid for by UFC (the "Cottage"). (Doc. 58-5, p. 28).
The previous day, Sunday, June 1, 2008, was Nero's day off from work. Id. at p. 32. He decided to drive to the beach at Orange Beach, Alabama, and was accompanied by Ruthe and by Omar Ortez, a foreman for Valesquez Construction, a subcontractor on the Whispering Pines project. (Doc. 101, p. 22). Arriving around noon, the three men spent the day at the beach and at the "Florabama" bar, where Nero admits that he had "two or three" beers. (Doc. 58-5, p. 32). Later that night, while returning to Daphne from Orange Beach, Nero was driving in the northbound lane of Highway 59 when he struck Saenzpardo.
It is undisputed that Nero did not perform any work on the Whispering Pines project on the Sunday morning that he, Ruthe, and Ortez departed for Orange Beach. (Doc. 58-5, p. 41). It is also undisputed that the truck Nero drove to Orange Beach and back was his personal vehicle. (Doc. 58-5, p. 27).
Saenzpardo has filed a motion for leave to file a motion to strike portions of, and exhibits to, UFC's reply brief. (Doc. 103). Saenzpardo points to the fact that the court's April 29, 2011, order (Doc. 92) required that "any supplementation to [a] presently pending summary judgment motion [was] due by 6/24/2011." On May 28,2011, the court noted that no supplementation was filed, and set the briefing schedule for the instant case. (Doc. 100, p. 1).
Nevertheless, in its reply brief, dated July 29, 2011, UFC offered "Supplemental Suggestions of Determinations of Undisputed Fact and Conclusions of Law," as well as excerpts from the deposition of Joe Key. (Doc. 102, p. 3). UFC argues that Key's deposition was not available at the time UFC filed its motion for summary judgment. Id. at fn. 1. However, UFC has offered no explanation for why it did not offer the excerpts from Key's deposition by the June 24, 2011, deadline.
As Saenzpardo has not had the opportunity to address the "undisputed" facts and conclusions of law set forth in UFC's reply brief, the court treats Saenzpardo's motion for leave as a motion to strike, and grants the motion. Accordingly, the court will not consider UFC's supplemental suggestions of determinations of undisputed fact and conclusions of law featured in its reply brief (Doc. 102, pp. 3-4), nor will it consider the cited excerpts of Key's deposition testimony. (Doc. 102-1).
In the Eleventh Circuit, "an adverse inference is drawn from a party's failure to preserve evidence only when the absence of that evidence is predicated on bad faith." Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir. 1997). "Mere negligence is not enough, for it does not sustain an inference of consciousness of a weak case," Vick v. Texas Employment Com'n, 514 F.2d 734, 737 (5th Cir. 1975) (quoting McCormick, Evidence § 273 at 660-61 (1972); 31A C.J.S. Evidence § 156(2) (1964)).The party claiming spoliation must present "probative evidence" that the relevant materials were "purposely lost or destroyed." Bashir, 119 F.3d at 931.
Saenzpardo argues that UFC is not entitled to summary judgment because it has "willfully, and in bad faith, spoliated material documents in this matter." (Doc. 101, p. 3). The documents in question consist of UFC payroll documents (the "Quicken files") that allegedly were stored on a computer owned and used by UFC president, Ray Garner. Id. at p. 4. On January 18, 2011, Garner testified at his deposition that the computer "crashed" approximately one year prior, and that the Quicken files were no longer on the machine. (Doc. 101-2, p. 74). Subsequently, on February 18, 2011, Garner corrected his deposition testimony in a sworn affidavit, stating that the computer in question did not "crash," but rather, "all company computer files have been deleted." (Doc. 60-1, p. 2). UFC later produced the computer to Saenzpardo on March 17, 2011, and a forensic inspection of the computer's hard drive showed that the hard drive was functioning as recently as March 11, 2011, and that the Quicken files were intentionally deleted from the computer on that same date. (Doc. 101, p. 4). Accordingly, Saenzpardo requests that the court impose an adverse inference against UFC concerning its culpability in general and, specifically, Nero's employment status and acts in the "line and scope" of his employment. Id. at p. 6.
On April 21, 2011, the court held an evidentiary hearing regarding Saenzpardo's Renewed Motion for Sanctions regarding this and other discovery-related disputes, and denied Saenzpardo's motion. (See Minute Entry forproceedings held before Magistrate Judge Bert W. Milling, Jr: Motion Hearing held on 4/21/2011).
Saenzpardo asserts that "the deleted payroll and reimbursement (lodging/gas/food/drink) records are material as they speak to the employment status and/or 'line and scope' of Nero's and Ruthe's employment." (Doc. 101, p. 5). However, for the reasons enumerated below, the court finds that, even if Nero were held to be an employee of UFC rather than a 1099 subcontractor, Nero was not acting within the line and scope of his employment at the time of the accident. Thus, the issue of employment status is moot. Additionally, even if the court infers that the deleted files contained evidence of regular fuel reimbursements from UFC to Nero for fuel costs incurred in commuting to and from work, the court finds that the trip to Orange Beach was not a "coming and going" susceptible to the exception to the "coming and going" rule. See infra. The court also notes that Saenzpardo's allegations are that Ruthe, and not Nero, received direct fuel reimbursements from UFC. (Doc. 101, p. 11). Thus, the materiality of the Quicken files is far from certain, and the court declines to impose the requested sanctions.
Federal Rule of Civil Procedure 56(a) provides that summary judgment shall be granted "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." The trial court's function is not "to weigh the evidence and determine the truth of the matter but to determinewhether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "The mere existence of some evidence to support the non-moving party is not sufficient for denial of summary judgment; there must be 'sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.'" Bailey v. Allgas, Inc., 284 F.3d 1237, 1243 (11th Cir. 2002) (quoting Anderson, 477 U.S. at 249). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-250. (internal citations omitted).
The basic issue before the court on a motion for summary judgment is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." See Anderson, 477 U.S. at 251-252. The moving party bears the burden of proving that no genuine issue of material fact exists. O'Ferrell v. United States, 253 F.3d 1257, 1265 (11th Cir. 2001). In evaluating the argument of the moving party, the court must view all evidence in the light most favorable to the non-moving party, and resolve all reasonable doubts about the facts in its favor. Burton v. City of Belle Glade, 178 F.3d 1175, 1187 (11th Cir. 1999). "If reasonable minds could differ on the inferences arising from undisputed facts, then a court should deny summary judgment." Miranda v. B&B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992) (citing Mercantile Bank & Trust v. Fidelity & Deposit Co., 750 F.2d 838, 841 (11th Cir. 1985)).
Once the movant satisfies his initial burden under Rule 56(c), the non-moving party "must make a sufficient showing to establish the existence of each essential element to that party's case, and on which that party will bear the burden of proof at trial." Howard v. BP Oil Company, 32 F.3d 520, 524 (11th Cir. 1994)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). Otherwise stated, the non-movant must "demonstrate that there is indeed a material issue of fact that precludes summary judgment." See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The non-moving party "may not rely merely on allegations or denials in [the non-moving party's] pleading; rather, its response .... must - by...
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