2019 WL 758616
United States District Court, M.D. Alabama, Northern Division.
Laura QUARLES, as the Administratrix of the Estate of Gregory Quarles, Plaintiff,
TENNESSEE STEEL HAULERS, INC.; Joshua L. Faircloth; Pedro H. Fernandez; and Trans Texas Express, Inc., Defendants.
CASE NO. 2:17-CV-308-WKW
Attorneys and Law Firms
Jere Locke Beasley, John Gregory Allen, LaBarron Nelson Boone, Beasley Allen Crow Methvin Portis & Miles PC, Montgomery, AL, for Plaintiff.
Robert Arthur Arnwine, Jr., Thomas Lee Oliver, II, Carr Allison Pugh Howard Oliver & Sisson PC, Birmingham, AL, for Defendants Tennessee Steel Haulers, Inc., Joshua Lawrence Faircloth.
Francisco F. Canales, Keri Donald Simms, Webster, Henry, Lyons, White, Black & Bradwell PC, Birmingham, AL, for Defendants Pedro H. Fernandez, Trans Texas Express, Inc.
MEMORANDUM OPINION AND ORDER
W. Keith Watkins, UNITED STATES DISTRICT JUDGE
*1 One night in 2017, there were two car accidents near Exit 11 on Interstate 85 in Montgomery. The first accident was at 5:50 p.m. in a southbound lane; the second was at 8:31 p.m. in a northbound lane. This case is about whether the first accident proximately caused the second. It did not. Defendants Pedro Fernandez and Trans Texas Express, Inc. are thus entitled to summary judgment.
I. JURISDICTION AND VENUE
The court has subject-matter jurisdiction under 28 U.S.C. § 1332. (Doc. # 32.) The parties do not dispute personal jurisdiction or venue.
II. STANDARD OF REVIEW
To succeed on a motion for summary judgment, the moving party must show 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(a). The court views the evidence, and all reasonable inferences drawn from it, in the light most favorable to the nonmoving party. Jean-Baptiste v. Gutierrez, 627 F.3d 816, 820 (11th Cir. 2010).
A party seeking summary judgment “always bears the initial responsibility of informing the district court of the basis for the motion.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). This responsibility includes identifying the parts of the record that show there is no genuine dispute of material fact. See Fed. R. Civ. P. 56(c)(1). A movant who does not bear a trial burden of production may also assert, without citing the record, that the nonmoving party “cannot produce admissible evidence to support” a material fact. Fed. R. Civ. P. 56(c)(1)(B).
If the moving party meets its burden, then the nonmoving party must present evidence of a genuine dispute of material fact. Celotex, 477 U.S. at 324. A genuine dispute of material fact exists when the nonmoving party produces evidence allowing a reasonable fact-finder to return a verdict in its favor. Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001); see Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (noting “mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion”).
Interstate 85 is a main thoroughfare in Montgomery, Alabama. I-85 South takes drivers past downtown Montgomery to an interchange with Interstate 65. I-85 North goes toward Atlanta. Around Exit 11 (also called the Chantilly Exit or the Mitylene Exit) in Montgomery, there are two lanes in each direction. A wide, grassy median separates northbound from southbound traffic.1 On January 31, 2017, there were two major accidents near Exit 11. The first resulted in an overturned tractor-trailer. The second resulted in the tragic death of Gregory Quarles.
A. The 5:50 p.m. Southbound Accident
On January 31, Pedro Fernandez was hauling lumber on behalf of his employer, Trans Texas Express, Inc. He was headed south on I-85. Walter Griffin was driving a pickup truck in the same direction. At 5:50 p.m., the passenger side of Fernandez’s trailer collided with the driver’s side of Griffin’s pickup. The court assumes (without deciding) that Fernandez and Trans Texas are legally responsible for that collision. (Doc. # 1-8, at 2; Doc. # 70, at 7–32.)
*2 The collision caused Fernandez’s tractor-trailer to overturn into the median, which in turn caused the lumber on Fernandez’s truck to spill into the median. Police officers and the fire department responded to the accident. The city also sent workers to pick up the lumber in the median. (Doc. # 73, at 42, 50; Doc. # 75-6, at 2.)
B. The 8:31 p.m. Northbound Accident
Two hours and forty-one minutes after Fernandez overturned, city workers were still picking up lumber in the median. Police cars were still on the scene. Flashing lights — yellow ones on the cleanup crew’s trucks, blue ones on the police cars — illuminated the area. (Doc. # 1-5, at 2; Doc. # 75-6, at 2.)
Traffic had backed up in both directions. Plaintiff concedes that “there were no obstructions” in either northbound lane. (Doc. # 75, at 10.) There is, after all, no evidence of any debris on I-85 North. Nor is there evidence that, at 8:31 p.m., the cleanup crew or emergency vehicles blocked either northbound lane. Nor is there evidence anyone told northbound drivers to avoid the left lane. Instead, one driver testified that he did not see anything blocking northbound traffic. (Doc. # 73, at 48–50.) But for some reason — maybe a blend of caution and gawking — northbound traffic was consolidated into the right lane. It was crawling along at just ten to fifteen miles an hour. (Doc. # 73, at 43–45, 50–52; Doc. # 75, at 7; Doc. # 75-6, at 2.)
George Randall was driving a tractor-trailer on I-85 North when he got stuck in this traffic jam. Gregory Quarles was driving a Jeep immediately behind Randall. Joshua Faircloth, who was driving a tractor-trailer for Tennessee Steel Haulers, Inc., was right behind Quarles. Randall and Quarles slowed down for traffic. Tragically, Faircloth did not. He instead plowed into Quarles at high speed — possibly at sixty-five miles an hour. The collision hurled Quarles’s Jeep into the back of Randall’s tractor-trailer. Quarles died instantly from blunt-force trauma, and his car burst into flames. (Doc. # 73, at 44–46, 55, 59–60.)
There does not appear to be a reason Faircloth did not slow down or stop. The weather was clear. The road was dry. His brakes worked. Nothing blocked his view. He was not distracted by the cleanup crew. He somehow did not react to the flashing lights even though other drivers clearly did. (Doc. # 73, at 59–60.)
C. Procedural History
In April 2017, Plaintiff Laura Quarles (the administrator of Gregory Quarles’s estate) filed this wrongful death action against Fernandez, Trans Texas, Griffin, Faircloth, and Tennessee Steel Haulers in the Circuit Court of Montgomery County, Alabama. (Doc. # 1-1.) Plaintiff claims Defendants were negligent and wanton in violation of Alabama common law. (Doc. # 1-1, at 4–7.)
Defendants invoked diversity jurisdiction and removed the case from state court. (Doc. # 1.) Both Plaintiff and Griffin are Alabamians, which would normally keep the court from exercising diversity jurisdiction. But the court found that there was “no possibility” Griffin proximately caused Quarles’s death. (Doc. # 32, at 8, 11.) And because Griffin could not be liable to Plaintiff, the court dismissed him as “fraudulently joined” and did not remand the case to state court. (Doc. # 37.)2
*3 Fernandez and Trans Texas now move for summary judgment. (Doc. # 71.) They argue that just as Griffin could not be liable to Plaintiff, neither are they liable to Plaintiff. The motion has been fully briefed. (Docs. # 72, 73, 75, 80.) Fernandez and Trans Texas also move to strike some evidence Plaintiff submitted in opposition to summary judgment. (Doc. # 76.)
To prevail on either a negligence claim or a wantonness claim, Plaintiff must show that Fernandez and Trans Texas proximately caused Quarles’s death. Martin v. Arnold, 643 So. 2d 564, 567 (Ala. 1994) (“Proximate cause is an essential element of both negligence claims and wantonness claims.”). The undisputed material facts show that Plaintiff cannot meet that burden.
A. The Proximate Cause Requirement
In legal terms, “the proximate cause of an injury is that cause which, in the natural and probable sequence of events, and without the intervention or coming in of some new or independent cause, produces the injury, and without which the injury would not have occurred.” Ala. Power Co. v. Moore, 899 So. 2d 975, 979 (Ala. 2004) (cleaned up); see also, e.g., Thetford v. City of Clanton, 605 So. 2d 835, 840 (Ala. 1992) (“Proximate cause is an act or omission that in a natural and continuous sequence, unbroken by any new independent causes, produces the injury and without which the injury would not have occurred.”). An intervening or independent cause is something that breaks the chain of causation, thus making the defendant’s action no longer the proximate cause of the plaintiff’s injury. Moore, 899 So. 2d at 979. To break the causal chain, however, an intervening cause “must (1) occur after the defendant’s [wrongful] act, (2) be unforeseeable to the defendant at the time he acts, and (3) be sufficient to be the sole cause-in-fact of the plaintiff’s injury.” Prill v. Marrone, 23 So. 3d 1, 6 (Ala. 2009) (cleaned up).
In more practical terms, “proximate cause hinges on foreseeability.” Springer v. Jefferson Cty., 595 So. 2d 1381, 1384 (Ala. 1992); see Vines v. Plantation Motor Lodge, 336 So. 2d 1338, 1339 (Ala. 1976) (“The key here is foreseeability.”). To be foreseeable, harm must be more than merely possible. Moore, 899 So. 2d at 979. Instead, the proximate cause doctrine looks at the probability of harm and determines whether the defendant should be legally responsible for the plaintiff’s injury. Id. That is usually a question for the jury. Id. But if there are no disputed material facts, and if no reasonable juror could find that the defendant proximately caused the plaintiff’s injury, courts decide proximate cause. Id. at 980; Prill, 23 So. 3d at 12.
Precedent illustrates this doctrine. In City of Mobile v. Havard, for example, an overloaded soybean truck with defective brakes rear-ended a car in a tunnel. 268 So. 2d 805, 806–07, 809 (Ala. 1972). Gasoline fires broke out, but the firefighting equipment in the tunnel was allegedly either defective and inadequate, and the driver who was rear-ended died of severe burns. The driver’s estate sued the engineering firm responsible for inspecting the tunnel’s firefighting equipment, and a jury delivered a verdict for the plaintiff. Id. at 807. But the Alabama Supreme Court reversed, holding the engineering firm did not proximately cause the driver’s death. Rather, the soybean truck was an independent and intervening cause. Id. at 809–10.
*4 In Morgan v. City of Tuscaloosa, a drainage sewer was either negligently built or negligently maintained, so it did not properly drain water from the street. 108 So. 2d 342, 344 (Ala. 1959). Water thus pooled on the street. A driver drove too quickly into the impounded water, “causing the water to be splashed or sprayed onto his windshield, blinding the driver or obstructing his vision.” Id. Unable to see, the driver hit a child crossing the street. Id. The court held that any negligence in building or maintaining the drain “was nothing more than a remote cause of the accident.” Id. at 345. The negligent driver was an independent cause of the accident, and he was solely responsible for it. Id.
In both Havard and Morgan, the Alabama Supreme Court determined that the defendant could not have proximately caused the plaintiff’s injury. But in different scenarios, the court left the issue to the jury. In Hilburn v. Shirley, the defendant darted in front of the plaintiff’s tractor-trailer, causing an accident. 437 So. 2d 1252, 1253 (Ala. 1983). As soon as the plaintiff stopped, he leapt out of his truck to see if the defendant was hurt. The six-foot jump from the truck to the ground injured the plaintiff’s back. Id. The court held that the accident could have proximately caused the plaintiff’s back injury. Id. at 1254. The jump was not an intervening cause because it was foreseeable that one driver in an accident might hurry to check on another driver. Id.
There was no intervening cause in Thompson v. White, either. 149 So. 2d 797, 804 (Ala. 1963). There, a gas station hired clowns to perform at an intersection. The clowns were on the road, and they distracted one driver who rear-ended another. The driver who was rear-ended sued the gas station. Id. at 800. The court held that it was foreseeable that clowns on a road might distract drivers, so any negligence by the distracted driver was not an intervening cause. Id. at 803–04.3
B. Fernandez and Trans Texas did not proximately cause Quarles’s death.
No reasonable juror could find that Fernandez and Trans Texas proximately caused Quarles’s death. There was no uninterrupted natural, probable, or continuous sequence from Fernandez’s allegedly wrongful actions to Quarles’s death. Instead, Faircloth’s actions broke the chain of causation. Faircloth’s intervening negligence was unforeseeable, and it was enough to be the sole cause-in-fact of Quarles’s death.
There are four overlapping reasons for this conclusion. First, there was a long delay between the first accident and the second accident — from 5:50 to 8:31 p.m. To be more specific, there was a two hour and forty-one minute gap between Fernandez’s supposed negligence and Quarles’s death. (Plaintiff does not argue that Fernandez was negligent after his accident with Griffin. Instead, any negligence by Fernandez ended at 5:50 p.m.) This is unlike Hilburn, where the plaintiff hurt his back moments after (and during a physical response to) the defendant’s negligence. 437 So. 2d at 1254. Simply put, Fernandez could not have expected the results of his actions to last more than two-and-a-half hours. Other jurisdictions have reached the same conclusion when the second accident was much sooner than the one here.4
*5 Second, when Quarles got stuck in traffic, the scene was stable. The police had assumed control. Flashing yellow and blue lights illuminated the area. Traffic was moving, albeit slowly, in both directions. And for over two-and-a-half hours, other cars and trucks safely drove past the first accident. Drivers might have gawked, but they were safe. It was unforeseeable that Faircloth would fail to slow down or stop for traffic under these conditions. Again, other jurisdictions agree.5
Third, there is no evidence that Fernandez’s overturned tractor-trailer (or the lumber he was hauling) blocked northbound traffic. Fernandez contributed nothing more to Quarles’s death than the need for cleanup efforts and a resulting traffic jam. No one involved in the first accident was physically involved in the second. Fernandez was also on I-85 South, while Quarles and Faircloth were on I-85 North. It was not foreseeable that someone coming from the other direction would make no effort to safely navigate a traffic jam and a cleanup crew.6
Finally, Faircloth acted egregiously. The road was dry, the weather was clear, he had a clear view, and his brakes worked. Everyone else slowed down for traffic. But Faircloth barreled through at high speed. Fernandez could not have foreseen that.7 Put differently, Faircloth did not respond to what Fernandez allegedly caused. That is unlike Thompson, where the gas station wanted drivers to see clowns on the road and the clowns then distracted a driver. 149 So. 2d at 804.
C. Plaintiff’s arguments against summary judgment are not persuasive.
Fernandez and Trans Texas are, for the reasons above, entitled to judgment as a matter of law. Plaintiff argues against summary judgment, but her effort fails.
1. Language Ability
Plaintiff makes an issue of Fernandez’s inability to speak English. It is true that Fernandez, a Mexican citizen, cannot speak English. (Doc. # 73, at 35; Doc. # 75-2, at 9.) As a result, it was illegal for him to drive a commercial vehicle in the United States. 49 C.F.R. § 391.11(b)(2). But at the same time, Fernandez had an employment visa and a Mexican driver’s license. (Doc. # 81, at 5.) That made it legal for him to drive under Alabama law. Ala. Code § 32-6-10. More importantly, Fernandez’s ability to speak English in no way contributed to this accident. It is thus irrelevant and inadmissible. See Giles v. Gardner, 249 So. 2d 824, 827 (Ala. 1971).
2. Sudden Emergency Defense
*6 Next, Plaintiff argues that Fernandez and Trans Texas tacitly admitted that the first accident “created a hazardous condition affecting the northbound lanes of I-85 that caused the second accident.” (Doc. # 75, at 17.) This supposed admission came when Fernandez and Trans Texas preserved a “sudden emergency” defense in their Answer. (Doc. # 43, at 4.) Under the sudden emergency doctrine, “a person faced with a sudden emergency calling for quick action is not held to the same correctness of judgment and action that would apply if he had the time and opportunity to consider fully and choose the best means of escaping peril or preventing injury.” Bettis v. Thornton, 662 So. 2d 256, 257 (Ala. 1995) (cleaned up).
This argument fails. For one, the sudden emergency defense does not apply to a dangerous condition after the accident. Instead, it is an argument that Fernandez had a lower duty of care while he was driving. Moreover, a defendant “may state as many separate … defenses as it has, regardless of consistency.” Fed. R. Civ. P. 8(d)(3); see Verderane v. Jacksonville Shipyards, Inc., 772 F.2d 775, 779 (11th Cir. 1985). So even if a sudden emergency defense would concede there was a dangerous condition after the first accident (it would have had to preexist that accident), Fernandez and Trans Texas could still rely on their proximate cause defense. (Doc. # 43, at 3.)
3. Screenshots of a Video
In its evidentiary submission, Plaintiff included five screenshots of a video that an unidentified “passerby” made of the first accident scene “sometime before the Quarles crash.” (Doc. # 75-3, at 2.) The screenshots are said to depict firetrucks and a police car partially blocking the left lane on I-85 North. (Docs. # 75-3, 75-4.) A threadbare affidavit from Plaintiff’s attorney accompanies these screenshots.
It is hornbook evidence law that, for a photograph to be admissible, there must be evidence that the photo fairly and accurately depicts its subject. See 5 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 9:23 (4th ed. 2013 & Supp. 2018); 2 Kenneth S. Broun et al., McCormick on Evidence § 215 (7th ed. 2013 & Supp. 2016); 3 John H. Wigmore, Evidence in Trials at Common Law § 790 (Chadbourn rev. ed. 1970). Yet there is no evidence that the screenshots here fairly and accurately depict the scene of the first accident. Nor is there evidence of how the screenshots were made.
This is not to say that Plaintiff must identify who filmed the video or took the screenshots. See United States v. Clayton, 643 F.2d 1071, 1074 (5th Cir. Unit B April 1981) (“A witness qualifying a photograph need not be the photographer or see the picture taken; it is sufficient if he recognizes and identifies the object depicted and testifies that the photograph fairly and correctly represents it.”). But the affidavit from Plaintiff’s attorney merely says that a “passerby” made the video “sometime before” the second accident. The attorney does not represent that he has personal knowledge of the accident scene. He does not assert that the screenshots fairly and accurately depict the scene. Thus, the screenshots are inadmissible.
But even if the screenshots were admissible, they would not defeat summary judgment. That is because there is no evidence that the screenshots depict conditions at the time of the second accident. The screenshots purportedly show that “sometime before” 8:31 p.m., Fernandez’s tractor-trailer was in the median and emergency vehicles were in the left northbound lane. Yet Plaintiff concedes that, at 8:31 p.m., no emergency vehicles blocked I-85 North. (Doc. # 75, at 10.) To be clear: Plaintiff admits that the scene looked different at the time of the second accident. That means the screenshots are of little value. And to the extent that the screenshots matter, they do not affect the conclusion that there is no proximate causation.
4. Accident Reports
*7 Plaintiff’s evidentiary submission includes two Uniform Accident Reports — one from each accident. Under Alabama law, “accident reports made by persons involved in accidents” may not be used as evidence “in any trial, civil or criminal, arising out of an accident.” Ala. Code § 32-10-11; see Mainor v. Hayneville Tel. Co., 715 So. 2d 800, 802 (Ala. Civ. App. 1997) (“Section 32-10-11 provides that no Alabama Uniform Accident Report shall be used as evidence in any civil or criminal trial arising out of an accident.”). That rule applies here, meaning that the reports are inadmissible. Fed. R. Evid. 501; cf. Cardona v. Mason & Dixon Lines, Inc., 737 F. App’x 978, 981 (11th Cir. 2018) (per curiam). Even if they were admissible, though, nothing in them would affect the court’s decision.
5. Declaration Without Oath
Finally, Plaintiff presents a statement from Brittany Boston, who claims that she saw Faircloth rear-end Quarles. Boston represents that her statement “is true and accurate to the best of [her] knowledge and belief.” (Doc. # 75-7.) But her statement is not notarized. Nor does it state “under penalty of perjury” that it “is true and correct.” 28 U.S.C. § 1746. It is not even dated. Id. That means “the court may not consider [it] in determining the propriety of summary judgment.” Gordon v. Watson, 622 F.2d 120, 123 (5th Cir. 1980) (per curiam); see also Grimsley v. Palm Beach Credit Adjusters, Inc., 691 F. App’x 576, 579 (11th Cir. 2017) (per curiam) (stating that “unsworn assertions … cannot create a genuine issue of material fact to defeat summary judgment”). Once again, though, this evidence does not create a genuine dispute of material fact. It says nothing about the cause of the second accident other than it appeared to the witness that Faircloth was going fast.
For the reasons above, it is ORDERED that:
1. Defendants Pedro Fernandez and Trans Texas Express, Inc.’s Motion for Summary Judgment (Doc. # 71) is GRANTED.
2. Defendants Pedro Fernandez and Trans Texas Express, Inc.’s Objection and Motion to Strike (Doc. # 76) is GRANTED to the extent provided in this Order.
3. There being no just reason for delay, this Order is final and appealable as to Defendants Pedro Fernandez and Trans Texas Express, Inc. Fed. R. Civ. P. 54(b).
DONE this 20th day of February, 2019.
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on December 1, 2013, the fee to file an appeal is $505.00
CIVIL APPEALS JURISDICTION CHECKLIST
1. Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited by statute:
(a) Appeals from final orders pursuant to 28 U.S.C. § 1291: Final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under 28 U.S.C. § 158, generally are appealable. A final decision is one that “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1368 (11th Cir. 1983) (citing Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945) ). A magistrate judge’s report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. 28 U.S.C. § 636(b); Perez-Priego v. Alachua County Clerk of Court, 148 F.3d 1272 (11th Cir. 1998). However, under 28 U.S.C. § 636(c)(3), the Courts of Appeals have jurisdiction over an appeal from a final judgment entered by a magistrate judge, but only if the parties consented to the magistrate’s jurisdiction. McNab v. J & J Marine, Inc., 240 F.3d 1326, 1327-28 (11th Cir. 2001).
*8 (b) In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b). Williams v. Bishop, 732 F.2d 885, 885-86 (11th Cir. 1984). A judgment which resolves all issues except matters, such as attorneys’ fees and costs, that are collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 201, 108 S.Ct. 1717, 1721-22, 100 L.Ed.2d 178 (1988); LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).
(c) Appeals pursuant to 28 U.S.C. § 1292(a): Under this section, appeals are permitted from the following types of orders:
i. Orders granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions; However, interlocutory appeals from orders denying temporary restraining orders are not permitted. McDougald v. Jenson, 786 F.2d 1465, 1472-73 (11th Cir. 1986);
ii. Orders appointing receivers or refusing to wind up receiverships; and
iii. Orders determining the rights and liabilities of parties in admiralty cases.
(d) Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: The certification specified in 28 U.S.C. § 1292(b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court’s denial of a motion for certification is not itself appealable.
(e) Appeals pursuant to judicially created exceptions to the finality rule: Limited exceptions are discussed in cases including, but not limited to: Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949); Atlantic Fed. Sav. & Loan Ass’n v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371, 376 (11th Cir. 1989); Gillespie v. United States Steel Corp., 379 U.S. 148, 157, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964).
2. Time for Filing: The timely filing of a notice of appeal is mandatory and jurisdictional. Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P. 4(a) and (c) set the following time limits:
(a) Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after the order or judgment appealed from is entered. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD – no additional days are provided for mailing. Special filing provisions for inmates are discussed below.
(b) Fed.R.App.P. 4(a)(3): “If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later.”
(c) Fed.R.App.P. 4(a)(4): If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion.
(d) Fed.R.App.P. 4(a)(5) and 4(a)(6): Under certain limited circumstances, the district court may extend or reopen the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time to file an appeal may be reopened if the district court finds, upon motion, that the following conditions are satisfied: the moving party did not receive notice of the entry of the judgment or order within 21 days after entry; the motion is filed within 180 days after the judgment or order is entered or within 14 days after the moving party receives notice, whichever is earlier; and no party would be prejudiced by the reopening.
*9 (e) Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution’s internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.
3. Format of the notice of appeal: Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of appeal must be signed by the appellant.
4. Effect of a notice of appeal: A district court lacks jurisdiction, i.e., authority, to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).
Slip Copy, 2019 WL 758616
In Montgomery, I-85 actually runs east–west. But as a whole, I-85 goes from Alabama to Virginia, so the Federal Highway Administration denotes it as a north–south route. The court thus refers to “northbound” and “southbound” traffic.
The only reason that the court did not dismiss Fernandez and Trans Texas on proximate cause grounds was because they did not destroy diversity jurisdiction. (Doc. # 37, at 2 n.1.)
Note that if the clowns had only been near the road, the gas station could not have been liable. Thompson, 149 So. 2d at 802 (explaining “that the act of causing clowns to perform near a highway, without more, does not constitute a breach of the duty owed by the owner of a lot abutting a highway to exercise reasonable care so as not to injure persons traveling on the highway”).
See, e.g., O’Connor v. Nigg, 838 P.2d 422, 425 (Mont. 1992) (holding no proximate cause; ten-minute gap); Williams v. Smith, 314 S.E.2d 279, 280 (N.C. Ct. App. 1984) (twenty to forty-five minutes); Hale v. Brown, 167 P.3d 362, 363 (Kan. Ct. App. 2007) (thirty-five minutes), aff’d, 197 P.3d 438 (Kan. 2008); Baumann v. Zhukov, 802 F.3d 950, 956 (8th Cir. 2015) (forty minutes); Southwell v. Riverdale Transit Corp., 540 N.Y.S.2d 425, 426 (App. Div. 1989) (forty-five minutes); Howard v. Bennett, 894 N.W.2d 391, 396 (S.D. 2017) (one-and-a-half hours); Clark v. EPCO Inc., 376 F. App’x 427, 431 (5th Cir. 2010) (per curiam) (two hours).
See, e.g., Howard, 894 N.W.2d at 396 (holding no proximate cause; relying on police presence, flowing traffic, and the lack of other accidents); Baumann, 802 F.3d at 956 (relying on the lack of other accidents); Blood v. VH-1 Music First, 668 F.3d 543, 548 (7th Cir. 2012) (relying on the fact that “the force of the first accident was spent” and the lack of other accidents); Jackson v. Howell’s Motor Freight, Inc., 485 S.E.2d 895, 900 (N.C. Ct. App. 1997) (relying on the fact that police officers had taken control of the scene); Haworth v. Mosher, 395 F.2d 566, 569 (10th Cir. 1968) (holding once another driver “came to a complete rest without collision or injury,” the causal chain broke).
See, e.g., Clark, 376 F. App’x at 431 (holding no proximate cause when defendant “contributed no more than the traffic jam”); Dee v. Johnson, 286 P.3d 22, 23 (Utah Ct. App. 2012) (holding no proximate cause where plaintiff hit a tow truck that partially obstructed road as it pulled defendant’s car out of the median); Dardenne v. Jones, 239 So. 2d 724, 726 (La. Ct. App. 1970) (holding no proximate cause where defendant’s vehicle and winch truck partially obstructed road and a driver who swerved into oncoming traffic to avoid the obstruction hit plaintiff).
See, e.g., Baumann, 802 F.3d at 956 (relying on the obviousness of the hazard); O’Connor, 838 P.2d at 425 (relying on the fact that the driver did not notice flashing police lights).