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Bits & Pieces

Daniels v. Russell

United States District Court, S.D. West Virginia.

Candina DANIELS, Plaintiff

v.

Antonio RUSSELL and Oxford House, Inc., a Maryland Corporation, and John Doe, unknown person or persons, Defendants.

Corsia Ramey, Plaintiff

v.

Antonio Russell and Oxford House, Inc., a Maryland Corporation, and John Doe, unknown person or persons, Defendants.

Kimberly Skeens, Plaintiff

v.

Antonio Russell and Oxford House, Inc., a Maryland Corporation, and John Doe, unknown person or persons, Defendants.

Barbara Winkler, Plaintiff

v.

Antonio Russell and Oxford House, Inc., a Maryland Corporation, and John Doe, unknown person or persons, Defendants.

 

Civil Action Nos. 2:10–0539, 2:10–0540, 2:10–0542.

May 3, 2011.

 

MEMORANDUM OPINION AND ORDER

JOHN T. COPENHAVER, District Judge.

Pending are the motions by defendant Oxford House, Inc. (“Oxford House”), for summary judgment, filed February 22, 2011, and to strike Exhibits A through E attached to plaintiffs’ summary judgment response, filed March 16, 2011.

 

Respecting the motion to strike, Oxford House asserts that the referenced exhibits are inadmissible for a number of reasons. Inasmuch as the court does not expect to rely upon the challenged documents in adjudicating the dispositive motion, it is ORDERED that the motion to strike be, and it hereby is, denied as moot.

 

I.

Plaintiffs Candina Daniels, Corsia Ramey, and Kimberly Skeens are West Virginia residents. Defendant Antonio Russell’s citizenship appears to be unknown at this time. It does not appear that he has been served with process. Oxford House is a Delaware corporation with its principal place of business in Maryland.

 

The Oxford House concept appears to be a novel one. It is explained in the affidavit of Kathleen Gibson, its Chief Operating Officer:

 

Oxford House, Inc. is a … not for profit corporation…. Oxford House is a network of approximately 1400 houses nationwide that provides housing for recovering alcoholics and drug addicts…. Each Oxford House is democratically run, financially self-supporting, and expels any resident who resumes the use of drugs and alcohol while residing in an Oxford House…. Oxford Houses are not residential treatment facilities and there is no staff residing at an Oxford House or in charge of operating an Oxford House…. Each Oxford House is self-run, meaning that the residents are in charge of running the house and making all the decisions pertaining to each Oxford House on a democratic basis….

 

Oxford House employs persons to open and establish Oxford Houses in various states. It hires residents or former residents of Oxford Houses. The prospective employee must have been a resident of an Oxford House and must have lived in an Oxford House without incident. This means that the individual must not have been asked to leave an Oxford House because of resumed alcohol or drug use, or failure to pay rent, or for engaging in disruptive behavior.

 

(Aff. of Kathleen Gibson ¶¶ 2–3).

 

In 2005, Russell was hired by Oxford House as an outreach worker in North Carolina. Kathleen Gibson was the Oxford House state coordinator for North Carolina at the time. Russell filled a vacancy created after Ms. Gibson terminated an outreach worker for having a relationship with a female Oxford House resident. Ms. Gibson asked Russell if he had ever had an inappropriate relationship with a female either before or after he was himself an Oxford House resident. He assured her to the contrary. Ms. Gibson hired him based upon:

 

an outstanding record of being active with the Winston–Salem, North Carolina chapter of Oxford Houses as well as his activity in assisting Oxford House on a state level. He also had excellent credentials as a result of his work on a special project for the North Carolina Department of Vocational Rehabilitation.

 

(Id. ¶ 4). She did not conduct a criminal background investigation on Russell.

 

In 2007, Oxford House was awarded a contract by West Virginia to seed its homes in the state. Russell was reassigned to that task, with primary responsibility to open houses in the Charleston, Huntington, and Parkersburg areas. He achieved some success. For example, in June 2007 he opened an Oxford House located in Dunbar (“Oxford House Dunbar”). Oxford House Dunbar was restricted to female residents only.

 

Daniels, a parolee at the time, resided at Oxford House Dunbar for six days in July 2008. Skeens stayed there from April to May 2008. She was asked to leave after she wrote an unauthorized check from the house account. Ramey arrived in January 2008 and left the next month. Oxford House asserts that she was “continually behind in her rent, and left the house without notice, and with her rent in arrears.” (Id. ¶ 16).

 

Oxford House maintains a “a strict written policy against sexual harassment and sexual misconduct among its employees.” (Id. ¶ 9). Ms. Gibson recounts one provision of the policy providing, inter alia, as follows: “The practice of [employee] involvement with members of Oxford Houses for sexual contact is discouraged especially where Oxford House members possess less than one year of sobriety.” (Id.)

 

While the meeting minutes of Oxford House Dunbar reflect no contemporaneous complaints by Daniels, Skeens, or Ramey about Russell, plaintiffs now allege disturbing versions of abuse and harassment inflicted upon them by him during their respective stays. Daniels’ account is as follows:

 

Russell sexually abused and sexually harassed females while they were housed at the Dunbar House. During the latter part of July, 2008, Defendant Russell, upon meeting me for the first time at the Men’s Center, he immediately gave me a hug, kissed my check and told me I was cute. Later this day, Defendant Russell telephoned the Oxford House and started talking to me in a sexual manner. The second incident happened in my bedroom. He had called early to see if anyone was home.

 

Defendant Russell came in, sat on my bed and began fondling me and uttering sexually, vulgar words to me. Defendant Russell then asked me when we were going to “hook up” in a sexual manner. The last incident occurred when I was in the shower when I heard someone call my name out as I pulled the curtain back I saw Russell standing in the bathroom, holding his erect penis in his hand, talking to me in an inappropriate sexual manner. I left the Oxford House that night.

 

(Pls.’ Ex. G. at 3). She adds that “The sexual harassment and sexual abuse … made me fearful to stay at the Oxford House. I chose to leave to escape … Russell’s abuse.” (Id. at 7). She also states in her affidavit the effects she experienced as a result of Russell’s actions: “Since the sexually [sic] harassment and sexual abuse …, I experience anxiety, insomnia, depression, troubles with relationships and a fear of men.” (Aff. of Candina Daniels ¶ 3).

 

Ms. Ramey offers a similar version of events respecting Russell’s actions:

 

Russell sexually abused and sexually harassed females while they were housed at the Dunbar House. He didn’t telephone me at … [Oxford] House. Russell sexual[ly] harassed me while I was alone in the house. Russell followed me down to the laundry room and grabbed my buttocks and pushed me against the washer and said “you have a nice ass.” I could feel his erect penis against my back. In the downstairs bedroom where I was staying, I had locked the door to take a shower. Russell had somehow entered my bedroom and came into the bathroom where I was showering. As I looked out of the shower to see what was making the noise in my room, Russell was walking towards me with his penis erect masturbating and making sexual comments and sexual advancements. I screamed and he ran out of the room. On another occasion, Russell entered my room when I was lying on my bed. He approached me making sexual remarks and fondled my body.

 

….

 

He also requested me and another girl to have sex with him.

 

(Id. at 12, 14). Ms. Ramey at first was afraid to report the incident but later informed her parole officer, Justin Gibson. Ms. Ramey also noted how Russell’s actions have affected her: “Since the sexually [sic] harassment and sexual abuse of Defendant Russell, I experience anxiety and depression.” (Aff. of Corsia Ramey ¶ 3).

 

Ms. Skeens’ account is similar. She accuses Russell as follows:

 

Antonio Russell sexually abused and sexually harassed females while they were housed at the … [Oxford] House. Our first meeting was when Russell was transporting me to the Dunbar House. On the drive he continuously rubbed my leg and asked me for a date. He asked me out on a date on several different occasions. Russell fondled my body on more than once and tried to kiss me. One incident occurred in the kitchen of the Dunbar House as I was preparing food. Russell pushed me into the food pantry and began groping and kissing me. He would often do this in front on [sic] my son. The last incident occurred in a pharmacy parking lot when Defendant Russell approached me and said, “You didn’t give me a hug before you left.” He then hugged me and began fondling my breasts.

 

(Id. at 21). Ms. Skeens explained that she “had no way to keep … [her] son with … [her] unless … [she] allowed Russell to harass and abuse” her. (Id. at 24). In her affidavit, she addresses the effects of Russell’s actions upon her:

When I think about being around Antonio Russell I get nervous and sad. I try and block him out of my memory. I have more trust issues with men than I used to. When Antonio Russell tried to put me in the corner in the kitchen and touch me, it brought back bad memories of something that happened to me when I was 14.

 

(Aff. of Kimberly Skeens ¶ 4).

 

Prior to his employment with Oxford House, Russell had attracted the attention of law enforcement on multiple occasions. In addition to various traffic and registration offenses, plaintiffs’ Exhibit F, accompanying their response to Oxford House’s dispositive motion, includes the following information about Russell’s criminal history:

 

 

Charge Date    Offense           Disposition

4–27–1986      Driving while impaired           Pled guilty

3–11–1989      Driving while impaired           Pled guilty

3–11–1989      Felony marijuana possession   Dismissed

5–20–1993      Intoxicated and disruptive      Pled guilty

1–30–1997      Assault on a female     Pled guilty

 

 

(Pls.’ Ex. F).

 

Counsel for Oxford House states Russell’s criminal history “would not have impeded … [his] hiring as nearly 80% of Oxford House members … have some sort of criminal history.” (Def.’s Mem. in Supp. at 6). It is further observed that the 1997 domestic battery conviction in particular “would not, in any case, have been seen as a red flag.” (Id.)

 

In the spring of 2009, Oxford House undertook an investigation of Russell based upon job performance complaints about him from other Oxford Houses. He was terminated in June 2009. The deficiencies that led to his termination included (1) a failure to send reports as directed, (2) allowing houses to write insufficient funds checks, and (3) a failure to install telephone service at another Oxford House facility for an extended period. The regional supervisor charged with the investigation, John Fox, was never informed about any inappropriate behavior with female residents. Oxford House contends such allegations played no role in Russell’s termination.

 

On December 9, 2009, Daniels, Ramey, and Skeens instituted separate actions in the Circuit Court of Kanawha County against Russell and Oxford House. On April 21, 2010, Oxford House removed. On July 28, 2010, plaintiffs filed amended complaints. The pleadings are a bit confusing. The first three counts are straightforward, alleging (1) intentional infliction of emotional distress (“Count One”), (2) invasion of privacy (“Count Two”), and (3) what appears to be negligent hiring, retention, supervision, and training (“Count Three”).

 

The remainder of the pleadings then veer off. Count Four appears to allege only satisfaction of the standard governing an award of punitive damages. The court does not understand Count Four to qualify as a separate claim.

 

Count Five offers a litany of claims, which include the causes of action pled in Counts One through Three and, additionally, other claims such as “Violation of the West Virginia Human Rights Act” and “Law of Agency,” along with legal theories not constituting separate claims, such as “Doctrine of Respondent [sic] Superior.” Count Six appears to list only general damage elements. Count Seven appears duplicative of Counts One through Three. The court does not understand either Counts Six or Seven to constitute stand-alone claims.

 

On August 12, 2010, the court consolidated these actions for purposes of pretrial development and conferencing. It reserved at that time the question of consolidating the cases for trial. On February 22, 2011, Oxford House moved for summary judgment. First, Oxford House asserts that it is not vicariously liable for the intentional torts committed by Russell. Second, it contends that it is entitled to summary judgment respecting that portion of Count Three alleging negligent hiring, retention, and supervision of Russell by Oxford House.

 

II.

A. Governing Standard

A party is entitled to summary judgment “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Material facts are those necessary to establish the elements of a party’s cause of action. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

 

A genuine issue of material fact exists if, in viewing the record and all reasonable inferences drawn therefrom in a light most favorable to the non-moving party, a reasonable factfinder could return a verdict for the non-movant. Id. The moving party has the burden of showing—“that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the movant satisfies this burden, then the non-movant must set forth specific facts as would be admissible in evidence that demonstrate the existence of a genuine issue of fact for trial. Fed.R.Civ.P. 56(c); id. at 322–23. A party is entitled to summary judgment if the record as a whole could not lead a rational trier of fact to find in favor of the nonmovant.   Williams v. Griffin, 952 F.2d 820, 823 (4th Cir.1991).

 

Conversely, summary judgment is inappropriate if the evidence is sufficient for a reasonable fact-finder to return a verdict in favor of the non-moving party. Anderson, 477 U.S. at 248. Even if there is no dispute as to the evidentiary facts, summary judgment is also not appropriate where the ultimate factual conclusions to be drawn are in dispute. Overstreet v. Ky. Cent. Life Ins. Co., 950 F.2d 931, 937 (4th Cir.1991).

 

A court must neither resolve disputed facts nor weigh the evidence, Russell v. Microdyne Corp., 65 F.3d 1229, 1239 (4th Cir.1995), nor make determinations of credibility. Sosebee v. Murphy, 797 F.2d 179, 182 (4th Cir.1986). Rather, the party opposing the motion is entitled to have his or her version of the facts accepted as true and, moreover, to have all internal conflicts resolved in his or her favor. Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir.1979). Inferences that are “drawn from the underlying facts … must be viewed in the light most favorable to the party opposing the motion.” United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).

 

B. Oxford House’s Vicarious Liability for Russell’s Intentional Torts

In Musgrove v. Hickory Inn, Inc., 168 W. Va. 65, 65, 281 S.E.2d 499, 500 (1981), the Supreme Court of Appeals of West Virginia observed as follows:

 

An agent or employee can be held personally liable for his own torts against third parties and this personal liability is independent of his agency or employee relationship. Of course, if he is acting within the scope of his employment, then his principal or employer may also be held liable.

 

Id. at 65, 281 S.E.2d at 500. Subsequent decisions by the supreme court of appeals elaborate on the rule stated in Musgrove.

 

In Barath v. Performance Trucking Co., Inc., 188 W. Va. 367, 368, 424 S.E.2d 602, 603 (1992), plaintiff Barath was attacked by David Cook Jr., who may have been an employee of defendant Performance Trucking Company, Inc. (“Performance Trucking”). Cook’s father, David Cook, Sr., was employed as manager by Performance Trucking. Just prior to the attack, a witness heard the son state that his father had told him to attack Barath the next time he encountered him.

 

The supreme court of appeals concluded that the witness account, along with the facts that (1) Performance Trucking had been the victim of a labor strike, and (2) that Barath was involved in the strike as a union member, counseled against granting summary judgment:

 

While the evidence on this point was exceedingly indirect, this Court believes that it did suggest that union unrest might have caused financial losses to Performance Trucking … that David Cook, Sr., as manager of the company, was aware of and felt the losses and had developed animosity toward the appellant, and as a consequence had directed his son to “beat” the appellant. Overall, it is suggested, but certainly not proven, that David Cook, Jr., who might have been an employee of Performance Trucking Co., Inc., at the time of the battery in this case, might have been acting within the scope of his employment at the time of the battery.

 

Id. at 371, 424 S.E.2d 602, 424 S.E.2d at 606.

 

In Foodland v. West Virginia Department of Health and Human Resources, 207 W.Va. 392, 532 S.E.2d 661 (2000), a grocery store was penalized by a regulating state agency after a store employee perpetrated a fraud against a welfare benefits program in which the store participated. The employee was fired after the theft and Foodland received no benefit from the fraud.

 

The supreme court of appeals discussed “scope of employment” as follows:

 

“Scope of employment” is a relative term and requires a consideration of surrounding circumstances, including the character of the employment, the nature of the wrongful deed, the time and place of its commission and the purpose of the act.

 

In general terms, it may be said that an act is within the course of the employment, if: (1) It is something fairly and naturally incident to the business and (2) it is done while the servant was engaged upon the master’s business and is done, although mistakenly or ill-advisedly, with a view to further the master’s interests, or from some impulse or emotion which naturally grew out of or was incident to the attempt to perform the master’s business, and did not arise wholly from some external, independent and personal motive on the part of the servant to do the act upon his own account.

 

Id. at 397, 532 S.E.2d at 665 (emphasis supplied). This analysis led to the following conclusion:

Employee theft is certainly not naturally incident to the owner’s business and even though the act was done while the cashier was engaged in the owner’s business, the theft was not done with a view to further the owner’s interests. The theft arose from a personal motive on the part of the cashier to further her own interests. Under these circumstances, the employee’s theft from the WIC program simply does not fit within her scope of employment.

 

Id.

 

The present action bears a much stronger resemblance to Foodland than Barath. Unlike the situation in Barath, Russell’s acts lack even the most minimal connection to Oxford House’s business. Oxford House’s policies condemn sexual misconduct by employees. That type of misconduct is certainly not naturally incident to Oxford House’s mission. It is immaterial that Russell may have perpetrated some of his misdeeds during work hours. His misconduct was not performed with any intention to further Oxford House’s interests.

 

Inasmuch as Russell’s actions were motivated by a personal desire on his part to abuse and harass the female residents of Oxford House Dunbar, they do not fall within the scope of his employment. The court, accordingly, ORDERS that Oxford House’s motion for summary judgment be, and it hereby is, granted insofar as it seeks a determination as a matter of law that Oxford House is not vicariously liable for the intentional torts perpetrated upon plaintiffs by Russell of which it has not been shown to have been aware until after all three plaintiffs had left Oxford House Dunbar.

 

C. Oxford House’s Liability for Negligent Hiring, Retention, and Supervision

The supreme court of appeals has recognized a claim for negligent hiring, which may or may not equate with negligent retention. See, e.g., McCormick v. West Virginia Dept. of Public Safety, 202 W. Va. 189, 193, 503 S.E.2d 502, 506 (1998) (“There can be no doubt that this court has recognized a cause of action based upon a claim of negligent hiring (or negligent retention) ….”) (citing State ex rel. West Virginia State Police v. Taylor, 201 W. Va. 554, 560 n. 7, 499 S.E.2d 283, 289 n. 7 (1997)). The decision in McCormick further observed as follows:

 

[A] fair formulation of the inquiry upon which liability for negligent hiring or retention should be determined is: “when the employee was hired or retained, did the employer conduct a reasonable investigation into the employee’s background vis a vis the job for which the employee was hired and the possible risk of harm or injury to co-workers or third parties that could result from the conduct of an unfit employee? Should the employer have reasonably foreseen the risk caused by hiring or retaining an unfit person?”

 

….

 

[A] primary question in determining whether an employer may be held liable, based on a theory of negligent hiring or retention, is the nature of the employee’s job assignment, duties and responsibilities—with the employer’s duty with respect to hiring or retaining an employee increasing, as the risks to third persons associated with a particular job increase.

 

Id. at 193, 503 S.E.2d at 506. It was also noted in McCormick as follows: “The obtaining of criminal history record information has been an issue in a number of negligent hiring and retention cases.” Id. at 193 n. 5, 503 S.E.2d at 506 n. 5.

 

Oxford House did not conduct a preemployment investigation of Russell. That inquiry would have revealed Russell was previously convicted of assaulting a female. It would also have revealed what plaintiffs characterize as “a chronic disregard for authority.” (Pls.’ Resp. at 11). These considerations give rise to a genuine issue of material fact respecting negligent hiring.

 

The jury might ultimately find that hiring Russell did not amount to negligence despite his prior criminal history. Another genuine issue of material fact would then arise, however, respecting the negligent supervision and retention claims. The jury would be entitled to consider whether the criminal history might have at least triggered an obligation on Oxford House’s part to more closely surveil Russell over the long term, which might in turn have revealed his misconduct earlier or perhaps prevented it had he known he was the subject of ongoing close scrutiny.

 

For these reasons, the court concludes that Oxford House is not entitled to judgment as a matter of law on plaintiffs’ claims for negligent hiring, supervision, and retention. The court, accordingly, ORDERS that Oxford House’s motion for summary judgment as to these claims be, and it hereby is, denied.

 

Plaintiffs’ response discusses their claims under the West Virginia Human Rights Act. Oxford House did not move for summary judgment on those claims. It devotes a single page to the matter in its reply brief. The court concludes the discussion found therein is an insufficient basis for judgment as a matter of law at this time.

 

Oxford House also briefly asserts that it is entitled to summary judgment on the question of damages. Inasmuch as that matter is reserved to the fact finder, and that genuine issues of material fact remain on the matter, the court concludes that Oxford House is not entitled to judgment as a matter of law on the issue.

 

III.

Based upon the foregoing discussion, it is ORDERED that Oxford House’s motion for summary judgment be, and it hereby is, granted to the extent that it seeks a determination as a matter of law that Oxford House is not vicariously liable for the intentional torts perpetrated upon plaintiffs by Russell and denied in all other respects.

 

The court notes that Barbara Winkler, plaintiff in the third member action, is proceeding pro se. This follows her counsel being permitted to withdraw as a result of her refusal to assist them in prosecuting this action and her failure to retain new counsel by the April 14, 2011, deadline imposed by the court.

 

Ms. Winkler was given until May 5, 2011, to respond to Oxford House’s motion for summary judgment. The court need not, however, await that response. Oxford House has received judgment as a matter of law respecting only its vicarious liability for Russell’s misconduct. For the reasons stated supra, it is unlikely that Ms. Winkler might offer any evidence that Russell’s egregious misconduct somehow fell within the scope of his employment. Should that be the case, Ms. Winkler may move for reconsideration to present her evidence concerning that narrow issue. In the event that Ms. Winkler does not appear for the pretrial conference, the court will entertain a motion to dismiss her claims without prejudice pursuant to Federal Rule of Civil Procedure 41(b).

 

The Clerk is requested to transmit this written opinion and order to all counsel of record and to Ms. Winkler at the following addresses, by certified mail return receipt requested:

 

P.O. Box 43 1105 9th Street Apt 2

 

Alum Creek, WV 25003 Huntington, WV 25701

Princesse D’Isenbourg Et Cie Ltd. v. Kinder Caviar, Inc.

United States District Court,

E.D. Kentucky,

Central Division,

at Frankfort.

PRINCESSE D’ISENBOURG ET CIE LTD., Plaintiff,

v.

KINDER CAVIAR, INC., Defendant,

and

Kinder Caviar, Inc., Third–Party Plaintiff,

v.

United Airlines, Inc., Third–Party Defendant.

 

Civil Action No. 3:09–29–DCR.

May 2, 2011.

 

MEMORANDUM OPINION AND ORDER

DANNY C. REEVES, District Judge.

This matter is pending for consideration of Third–Party Defendant United Airlines’ Motion for Summary Judgment [Record No. 96] as well as Third–Party Plaintiff Kinder Caviar’s Motion to Continue [Record No. 117] and Motion to Withdraw [Record No. 107]. For the following reasons, United’s motion for summary judgment will be granted in part and denied in part. Kinder’s motions to continue and withdraw will be granted.

 

I. Background

This case began with a contract for the purchase and sale of paddlefish caviar. Princesse D’Isenbourg, an English corporation, purchased 550 pounds of caviar from Kinder Caviar, a Kentucky company. However, the paddlefish never reached Isenbourg. Because of errors in the customs paperwork and shipping labels affixed to the package, the shipment was held at United Kingdom Customs and never allowed to enter the country. In a previous opinion, this Court held that Kinder breached its contract with Isenbourg by failing to deliver the goods. [Record No. 95]

 

Because the package was denied entry to the United Kingdom, Isenbourg eventually had to ship it back to the United States. Isenbourg contracted with United Airlines to ship the caviar from the United Kingdom to Kentucky. Kinder alleges that, when the caviar arrived in Kentucky, it had been thawed and re-frozen, which permanently damaged the goods. Kinder also alleges that the package had been damaged in other ways that called into question the integrity of its contents. Kinder initiated a claims process with United Airlines but as of this date, it has not received a resolution of that claim. Kinder then brought this third-party action against United Airlines.

 

II. Summary Judgment Analysis

Ultimately, analysis of this motion centers on the proper reading of Kinder’s poorly drafted Third–Party Complaint. Although it contains factual allegations concerning United’s handling of the caviar during return shipment, the only cause of action Kinder’s complaint asserts is for common law indemnity. In response, United argues that indemnity is improper because United was not the primary and efficient cause of the injury to Isenbourg. According to United, Isenbourg’s injury is based on the fact that is that the caviar never reached Isenbourg’s place of business in the United Kingdom. United had no role in the original transaction (DHL was the shipping agent for the original shipment from Kentucky to the United Kingdom); therefore, United claims it was not the cause of Kinder’s breach or the injury to Isenbourg. Kinder, for its part, never addresses the issue of common law indemnity. Thus, on that issue, Kinder has failed to rebut United’s arguments or identify a genuine issue of material fact regarding its claim for indemnity. Instead, Kinder argues that its Third–Party Complaint should be liberally interpreted to include a “claim directly against [United] for cargo damage.” [Record No. 114, p. 4] Alternatively, Kinder argues that it should be granted leave to amend its complaint and assert such a claim.

 

In summary, while Kinder essentially concedes that United was not the cause of the injury to Isenbourg and indemnity would not be proper, it argues that its Third–Party Complaint contains a different claim altogether (i.e., a direct claim for damages), as to which there exist ample issues of material fact to survive summary judgment. In the end, both parties are partially correct. Kinder has not alleged facts sufficient to support a claim for indemnity and, therefore, the Court will grant summary judgment on that issue. However, while the law does not allow the Court to liberally interpret Kinder’s complaint at this stage of the proceedings, Kinder will be granted leave to amend its Third–Party Complaint and assert the claim for cargo damage that is thinly-outlined in its current complaint.

 

A. Summary Judgment Standard

Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). A genuine dispute as to a material fact exists if there is sufficient evidence favoring the nonmoving party for a reasonable jury to return a verdict in favor of that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In other words, the determination must be “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.”   Id. at 251–52.

 

The moving party initially bears the burden of informing the court of the basis for its motion. Chao v. Hall Holding Co., Inc., 285 F.3d 415, 424 (6th Cir.2002) (citing Celotex, 477 U.S. at 323). The movant does so by bringing forward the relevant portions of the record which establish the absence of a genuine issue of material fact. Id. Once the movant has satisfied its burden, the nonmoving party must go beyond the pleadings and produce specific evidence to demonstrate that there is a genuine issue of material fact. Id. The nonmoving party must do more than cast some “metaphysical doubt” on the material facts. Id. (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). It must present significant, probative evidence of a genuine issue in order to defeat the motion for summary judgment. Id. In reviewing the motion, the Court must view all facts and inferences in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 586–87.

 

B. Indemnity

United argues that it should not be held liable for indemnity because it had no responsibility for the injury sustained by Isenbourg: the caviar’s failure to clear United Kingdom Customs. The caviar was rejected at customs because of improper shipping labels. It is undisputed that United did not have possession of the caviar until after it was rejected at customs. United asserts that the underlying case deals principally with a breach of contract, and it did not become involved until after the breach had occurred. Therefore, United argues that it was not the primary and efficient cause of the injury sustained by Isenbourg and cannot be held liable for indemnity.

 

As previously noted, Kinder completely fails to respond to this argument. Its brief does not point to a single fact in the record evidencing a dispute regarding whether United caused the injury to Isenbourg. [See Record No. 114] As explained, the nonmoving party has a burden on a motion for summary judgment. Once the moving party has addressed an issue and argued that no genuine issue of material fact exists, the nonmoving party must “come forward with specific facts to demonstrate that there is a genuine issue for trial.”   Chao, 285 F.3d at 424 (citing Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324). Kinder has failed to meet this burden concerning its claims for indemnification. Therefore, the Court will grant summary judgment in United’s favor as to the issue of indemnity.

 

C. Direct Cargo Damages

Rather than rebut United’s arguments concerning indemnity, Kinder asserts a new claim and then points to genuine factual issues in the record to support its argument that summary judgment is not appropriate. Kinder claims that its Third–Party Complaint, interpreted liberally, contains a direct claim for cargo damage. In reply, United argues that the liberal pleading standard is inapplicable at the summary judgment stage and that a party cannot raise a new claim in response to a motion for summary judgment.

 

 

As a matter of law, United is correct that the liberal pleading standard does not apply during summary judgment analysis. See Tucker v. Union of Needletrades, Indus., and Textile Emps., 407 F.3d 784, 787–88 (6th Cir.2005). While the Federal Rules of Civil Procedure allow for liberal notice pleading at the outset of a case, “[o]nce a case has progressed to the summary judgment stage … ‘the liberal pleading standards under … [the Federal Rules] are inapplicable.’ “ Id. at 788 (quoting Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11 th Cir.2004) (alteration by Tucker court)). Consequently, for purposes of the motion for summary judgment, the Court cannot apply the liberal interpretation Kinder requests to the Third–Party Complaint.

 

However, Kinder’s claim is not foreclosed altogether. The Gilmour court explained an alternative: “[a]t the summary judgment stage, the proper procedure for plaintiffs to assert a new claim is to amend the complaint in accordance with Fed.R.Civ.P. 15(a).” 382 F.3d at 1315. Rule 15(a) allows a party to amend a complaint with the court’s leave and notes that “[t]he court should freely give leave when justice requires.” Fed.R.Civ.P. 15(a). Kinder requested this relief in its response to United Airlines’ motion for summary judgment. [See Record No 114, p. 6 (“[A]t the very least, Kinder should be given leave to re-plead pursuant to Rule 15 Fed.R.Civ.P.”) ] Consequently, the Court will construe Kinder’s Response [Record No. 114] as a Motion for Leave to Amend the Third–Party Complaint and consider whether such leave is proper.

 

In this case, justice requires leave to amend. In fact, the only reason United can argue that such a claim has not already been asserted is poor drafting of the Third–Party Complaint. The facts of the Third–Party Complaint almost exclusively addresses United’s handling of the return shipment of the caviar from the United Kingdom to Kentucky. For instance, Kinder asserts that “paddlefish caviar is a perishable item and United was instructed on proper handling and care of the paddlefish caviar” [Record No. 38 ¶ 7]; “[t]hat the paddlefish caviar arrived at Heathrow Airport undamaged” [id. ¶ 8]; that Kinder received no report the caviar was damaged when it left Heathrow [id. ¶ 10]; and that when the caviar reached Louisville, Kentucky, Kinder “immediately observed obvious damage to the seven (7) containers and potential damage to the paddlefish caviar itself.” [Id. ¶ 12] Kinder also claims that “said damage was caused in whole or in part by United … as the caviar was in the complete control of United.” [Id. ¶ 14] Kinder’s Third–Party Complaint clearly alleges facts that United damaged the caviar during return shipment, not that United was the primary and efficient cause of Kinder’s breach of its contract with Isenbourg. However, Kinder later alleges that “any damages or relief Kinder Caviar is required to pay or perform as a result of the complaint filed herein by Isenbourg are caused … by the conduct of United.” [Id. ¶ 22] Despite setting out facts that support a direct claim, Kinder only alleges a claim for indemnity, [id. ¶¶ 21–23] and asks for indemnification in its prayer for relief. [See id., p. 5 ¶¶ 2–3]

 

Such claims would not “subject the defendant to unfair surprise.” Rhea v. Fifth Street Hi–Rise, Inc., No. 04–374, 2006 WL 2591014, at(E.D.Ky. Sept. 8, 2006). United was on notice of Kinder’s allegations because Kinder filed a claim with United’s Cargo Claims Department concerning the damage to the caviar. [Record No. 114–5] Joyce Kinder communicated with United to try to resolve this claim. [Record No. 114–4] Only after such communication failed to resolve the dispute did Kinder bring its third-party claim against United. By granting leave to amend, the Court will allow Kinder to pursue the claims which, poor drafting notwithstanding, appear to have been the gravamen of its dispute with United all along.

 

III. Other Pending Motions

Two other motions are pending in this case. On March 28, 2011, counsel for Third–Party Plaintiff Kinder Caviar submitted a motion to withdraw, citing irreconcilable differences and a refusal to pay attorney fees. [Record No. 107] The Court delayed ruling on the motion to allow Kinder to respond to United’s pending motion and make any necessary motions for a continuance that Kinder deemed proper. [Record No. 110] Kinder’s counsel has satisfied his obligations, and the Court finds sufficient cause to allow him to withdraw from this case. Consequently, the motion to withdraw will be granted.

 

Kinder also submitted a Motion to Continue on April 28, 2011. [Record No. 117] Kinder Caviar, Inc., as well as its owners Joyce and Steve Kinder, were recently indicted in the United States District Court in the Southern District of Ohio. Kinder’s April 28 motion informed the Court that the criminal case involves a forfeiture charge that covers property also at issue in this case. Thus, even though the only question still pending in Isenbourg’s suit is the amount of damages, any testimony concerning such property may relate to the forfeiture counts of the criminal indictment. Out of an abundance of caution to protect the Kinders’ Fifth Amendment rights, the Court will grant Kinder’s motion for a continuance and continue the hearing on damages until after the resolution of the Kinders’ criminal case.

 

IV. Conclusion

Kinder has failed to raise a genuine issue of material fact as to its indemnity claim. However, Kinder has made a proper request for leave to amend its Third–Party Complaint and assert a claim for direct cargo damages. Because justice would be served by granting leave to amend, Kinder’s request will be granted. Further, Kinder’s motion for a continuance and motion to withdraw as counsel will be granted. Accordingly, it is hereby

 

ORDERED as follows:

 

(1) Third–Party Plaintiff Kinder Caviar, Inc.’s Response to Third–Party Defendant’s Motion for Summary Judgment [Record No. 114] is construed as a Motion for Leave to Amend the Third–Party Complaint. That motion is GRANTED.

 

(2) Third–Party Defendant United Airlines, Inc.’s Motion for Summary Judgment [Record No. 96] is GRANTED as to Third–Party Plaintiff Kinder Caviar’s claims for indemnification. The motion is DENIED, without prejudice, as to any remaining claims.

 

(3) Kinder’s counsel’s Motion to Withdraw [Record No. 107] is GRANTED.

 

(4) Kinder’s Motion to Continue [Record No. 117] is GRANTED. The trial on damages set for May 24, 2011, is CONTINUED generally. This action shall be STAYED until October 26, 2011 .

 

(5) Kinder shall have a twenty (20) days after the stay is lifted to file an Amended Third–Party Complaint.

 

(6) The parties are DIRECTED to file a status report on or before October 26, 2011, informing the Court of the status of the criminal proceedings.

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