United States District Court, S.D. Alabama, Southern Division
WILLIAM H. STEELE, Chief District Judge.
This matter is before the Court on the defendant's motion to dismiss or, in the alternative, for summary judgment and on the plaintiffs' competing motion for partial summary judgment. (Docs. 106, 108). The parties have filed briefs and evidentiary materials in support of their respective positions, (Docs. 100, 103, 106-07, 109, 113-15, 118-19), and the motions are ripe for resolution. After careful consideration, the Court concludes that both motions are due to be denied.
According to the complaint, (Doc. 1), plaintiff Joe Suell was struck by a motor vehicle driven by Edward Hager, a veterinarian employed by the United States Department of Agriculture. The complaint sets forth two claims against the defendant under the Federal Tort Claims Act ("FTCA"): one on behalf of Mr. Suell for negligence and/or wantonness, and another on behalf of his wife, Tracy Suell, for loss of consortium and related damages.
As relevant here, a claim under the FTCA is available for "the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." 28 U.S.C. § 1346(b)(1). The parties' motions seek a favorable ruling on the issue whether Dr. Hager was acting within the scope of his office or employment.
Summary judgment should be granted only if "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 party seeking summary judgment bears "the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial." Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The moving party may meet its burden in either of two ways: (1) by "negating an element of the non-moving party's claim"; or (2) by "point[ing] to materials on file that demonstrate that the party bearing the burden of proof at trial will not be able to meet that burden." Id. "Even after Celotex it is never enough simply to state that the non-moving party cannot meet its burden at trial." Id .; accord Mullins v. Crowell, 228 F.3d 1305, 1313 (11th Cir. 2000); Sammons v. Taylor, 967 F.2d 1533, 1538 (11th Cir. 1992).
"When the moving party has the burden of proof at trial, that party must show affirmatively the absence of a genuine issue of material fact: it must support its motion with credible evidence... that would entitle it to a directed verdict if not controverted at trial. [citation omitted] In other words, the moving party must show that, on all the essential elements of its case on which it bears the burden of proof, no reasonable jury could find for the nonmoving party." United States v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir. 1991) (en banc) (emphasis in original); accord Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993).
"If the party moving for summary judgment fails to discharge the initial burden, then the motion must be denied and the court need not consider what, if any, showing the non-movant has made." Fitzpatrick, 2 F.3d at 1116; accord Mullins, 228 F.3d at 1313; Clark, 929 F.2d at 608.
"If, however, the movant carries the initial summary judgment burden..., the responsibility then devolves upon the non-movant to show the existence of a genuine issue of material fact." Fitzpatrick, 2 F.3d at 1116. "If the nonmoving party fails to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof, ' the moving party is entitled to summary judgment." Clark, 929 F.2d at 608 (quoting Celotex Corp. v. Catrett, 477 U.S. 317 (1986)) (footnote omitted); see also Fed.R.Civ.P. 56(e)(2) ("If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may... consider the fact undisputed for purposes of the motion....").
In deciding a motion for summary judgment, "[t]he evidence, and all reasonable inferences, must be viewed in the light most favorable to the nonmovant...." McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003).
There is no burden on the Court to identify unreferenced evidence supporting a party's position. Accordingly, the Court limits its review to the exhibits, and to the specific portions of the exhibits, to which the parties have expressly cited. Likewise, "[t]here is no burden upon the district court to distill every potential argument that could be made based upon the materials before it on summary judgment, " Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995), and the Court accordingly limits its review to those arguments the parties have expressly advanced.
The parties agree that the question whether Dr. Hager was acting within the scope of his office or employment under Section 1346(b)(1) is governed by the law of Alabama, where the alleged wrong occurred. In particular, Alabama's law of respondeat superior, as applied to employees involved in motor vehicle accidents, applies. (Doc. 106 at 3-4; Doc. 109 at 16).
Dr. Hager lives in Prentiss, Mississippi and ordinarily works in that state. However, he is subject to being temporarily assigned, and he was assigned to a Dothan facility in August 2011 to cover for a resident veterinarian who was attending training. His last services as a veterinarian on this assignment were provided on Friday, August 26. Before dawn on August 27, Dr. Hager left Dothan in his personal vehicle ...