White v. Dietrich Industries, Inc., Civil Action No. 1:06-CV-554.

• Decision Date: 13 November 2006
• Docket Number: Civil Action No. 1:06-CV-554.
• Citation: 554 F.Supp.2d 684
• Parties: Arnold WHITE, Plaintiff, v. DIETRICH INDUSTRIES, INC., Dietrich Metal Framing, and the Worthington Steel Company, Defendants.
• Court: U.S. District Court — Eastern District of Texas

554 F.Supp.2d 684

Arnold WHITE, Plaintiff, v. DIETRICH INDUSTRIES, INC., Dietrich Metal Framing, and the Worthington Steel Company, Defendants.

Civil Action No. 1:06-CV-554.

United States District Court, E.D. Texas, Beaumont Division.

November 13, 2006.

Bryan Adam Terrell of Weller Green Toups & Terrell LLP, Beaumont, TX, for Plaintiff.

David W. Ledyard of Strong Pipkin Bissell & Ledyard-Beaumont, Beaumont, TX, J. Allen Jones, III and Marc S. Blubaugh of Benesch Friedlander Coplan & Aronoff-Columbus, Columbus, OH, for Defendants.

Mike H. Bassett of The Bassett Firm, Dallas, TX, for Decker Truck Line, Inc.

MEMORANDUM AND ORDER

MARCIA A. CRONE, District Judge.

Pending before the court is Defendants Dietrich Industries, Inc., Dietrich Metal Framing, and The Worthington Steel Company's (collectively, "Defendants") Motion to Dismiss Plaintiffs Original Petition With Prejudice (# 4). Because the parties rely on matters outside the pleadings, the court has elected to treat the motion as one for summary judgment. See FED.R.CIV.P. 12(b)(6). Defendants seek summary judgment on Plaintiff Arnold White's ("White") personal injury claims for negligence and gross negligence on the basis that White failed to comply with the applicable two-year statute of limitations. Having reviewed the pending motion, the submissions of the parties, the pleadings, and the applicable law, the court is of the opinion that summary judgment is not warranted.

I. Background

At the time of the events giving rise to this action, Plaintiff was employed by Decker Truck Line, Inc., a purported contractor and/or subcontractor of Defendants. White claims that his assigned tasks included driving a truck and trailer, which Defendants loaded with their product for transport. On August 16, 2004, White's truck and trailer tipped over while he was traveling on Interstate 10 in Beaumont, Texas, allegedly causing him to suffer serious injuries. The parties agree that the statute of limitations in this case began to run on August 16, 2004, the date of the incident, and expired on August 16, 2006. See TEX. Crv. PRAC. & REM.CODE ANN. § 16.003(a) (Vernon 2002) (providing for a two-year statute of limitations for personal injury actions). Plaintiffs Original Petition, filed in the 58th Judicial District Court of Jefferson County, Texas, bears the file-stamp date of August 18, 2006, two days after the statute of limitations expired.

On September 15, 2006, Defendants removed this case to federal court on the basis of diversity jurisdiction and filed the instant motion, seeking to have all of White's claims dismissed with prejudice for his purported failure to file suit within the statute of limitations. White responded that his lawsuit was timely filed because he complied with each element of Rule 5 of the Texas Rules of Civil Procedure, commonly referred to as the "mailbox rule," by properly mailing the petition on August 16, 2006. In his response, however, Plaintiff relied on materials outside of the pleadings that were necessary to the resolution of the motion. Thus, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the court found it appropriate to treat Defendants' motion to dismiss as a motion for summary judgment subject to the provisions of Rule 56. Accordingly, the court provided the parties with additional time to submit any further summary judgment evidence and briefing on the issues raised in the motion to dismiss.

II. Analysis

A. Summary Judgment Standard

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R.Crv.P. 56(c). The parties seeking summary judgment bear the initial burden of informing the court of the basis for their motion and identifying those portions of the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, which they believe demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48,106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Warfield v. Byron, 436 F.3d 551, 557 (5th Cir.2006); Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th Cir.2005); Martinez v. Schlumberger, Ltd., 338 F.3d 407, 411 (5th Cir.2003); Terrebonne Parish Sch. Bd. v. Mobil Oil Corp., 310 F.3d 870, 877 (5th Cir.2002). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505; accord EMCASCO Ins. Co. v. American Int'l Specialty Lines Ins. Co., 438 F.3d 519, 523 (5th Cir.2006); Cooper Tire & Rubber Co. v. Farese, 423 F.3d 446, 454 (5th Cir.2005); Harken Exploration Co. v. Sphere Drake Ins. PLC, 261 F.3d 466, 471 (5th Cir.2001); Merritt-Campbell, Inc. v. RxP Prods., Inc., 164 F.3d 957, 961 (5th Cir.1999).

Where a defendant moves for summary judgment on the basis of an affirmative defense and, thus, bears the ultimate burden of persuasion, "it must adduce evidence to support each element of its defenses and demonstrate the lack of any genuine issue of material fact with regard thereto." Rushing v. Kansas City S. Ry. Co., 185 F.3d 496, 505 (5th Cir.1999), cert, denied, 528 U.S. 1160, 120 S.Ct. 1171, 145 L.Ed.2d 1080 (2000) (citing Exxon Corp. v. Oxxford Clothes, Inc., 109 F.3d 1070, 1074 (5th Cir.), cert, denied, 522 U.S. 915, 118 S.Ct. 299, 139 L.Ed.2d 231 (1997)); see Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir.1986). To warrant judgment in its favor, the movant "`"must establish beyond peradventure all of the essential elements of the defense."'" Martin v. Alamo Cmty. Coll. Dist, 353 F.3d 409, 412 (5th Cir.2003) (emphasis in original) (quoting Chaplin v. NationsCredit Corp., 307 F.3d 368, 372 (5th Cir.2002) (quoting Fontenot, 780 F.2d at 1194)).

Once a proper motion has been made, the nonmoving party may not rest upon mere allegations or denials in the pleadings but must present affirmative evidence, setting forth specific facts, to show the existence of a genuine issue for trial. See Celotex Corp., 477 U.S. at 322 n. 3, 106 S.Ct. 2548 (citing FED.R.CIVP. 56(e)); Anderson, 477 U.S. at 256, 106 S.Ct. 2505; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n. 11, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); ECASCO Ins. Co., 438 F.3d at 523; Smith ex rel. Estate of Smith v. United States, 391 F.3d 621, 625 (5th Cir.2004); Malacara v. Garber, 353 F.3d 393, 404 (5th Cir.2003); Rushing, 185 F.3d at 505. "[T]he court must review the record `taken as a whole.'" Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (quoting Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348); see Riverwood Int'l Corp. v. Employers Ins. of Wausau, 420 F.3d 378, 382 (5th Cir.2005). All the evidence must be construed "in the light most favorable to the non-moving party without weighing the evidence, assessing its probative value, or resolving any factual disputes." Williams v. Time Warner Operation, Inc., 98 F.3d 179, 181 (5th Cir.1996); see Reeves, 530 U.S. at 150, 120 S.Ct. 2097; Lincoln Gen. Ins. Co., 401 F.3d at 350; Smith, 391 F.3d at 624; Malacara, 353 F.3d at 398; Brown v. City of Houston, 337 F.3d 539, 541 (5th Cir.2003); Harken Exploration Co., 261 F.3d at 471; Daniels v. City of Arlington, 246 F.3d 500, 502 (5th Cir.), cert. denied. 534 U;S. 951, 122 S.Ct. 347, 151 L.Ed.2d 262 (2001). The evidence of the nonmovant is to be believed, with all justifiable inferences drawn and all reasonable doubts resolved in his favor. See Palmer v. BRG of Ga., Inc., 498 U.S. 46, 49 n. 5, 111 S.Ct. 401, 112 L.Ed.2d 349 (1990) (citing Anderson, 477 U.S. at 255, 106 S.Ct. 2505); Shields v. Twiss, 389 F.3d 142, 150 (5th Cir.2004); Martin, 353 F.3d at 412; Martinez, 338 F.3d at 411; Gowesky v. Singing River Hosp. Sys., 321 F.3d 503, 507 (5th Cir.), cert. denied. 540 U.S. 815,124 S.Ct. 66, 157 L.Ed.2d 30 (2003); Chaplin, 307 F.3d at 372.

Summary judgment is mandated if the nonmovant fails to make a showing sufficient to establish the existence of an element essential to his case on which he bears the burden of proof at trial. See Nebraska v. Wyoming, 507 U.S. 584, 590, 113 S.Ct. 1689, 123 L.Ed.2d 317 (1993); Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548; EMCASCO Ins. Co., 438 F.3d at 523; Cutrera v. Board of Supervisors of La. State Univ., 429 F.3d 108, 110 (5th Cir.2005); Patrick v. Ridge, 394 F.3d 311, 315 (5th Cir.2004). "In such a situation, there can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. 2548.

B. The Mailbox Rule

In support of their contention that White's action is time-barred, Defendants proffer a copy of White's Original Petition. Although the petition alleges that the incident giving rise to this action occurred on August 16, 2004, it bears a file-stamp date of August 18, 2006, two days after the statute of limitations expired. Thus, Defendants have met their initial burden as movants, and the burden shifts to Plaintiff to adduce evidence raising a genuine issue of fact to avoid dismissal of his claim.

White contends that, pursuant to the mailbox rule, his petition was deemed filed when it was deposited in the mail on August 16, 2006. Rule 5 of the Texas Rules of Civil Procedure, commonly known as the mailbox rule, provides, in pertinent part, as follows:

If any document is sent to the proper clerk by first-class United States mail in an envelope or wrapper properly addressed and...