United States District Court, S.D. Alabama, Southern Division
DANA M. MCLEOD, Plaintiff,
FIELD ASSET SERVICES, LLC, Defendant.
K. DuBOSE UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant Field Asset Services,
LLC's motion for summary judgment (Doc. 23), Plaintiff
Dana M. McLeod's Response (Doc. 29) and Defendant's
Reply (Doc. 32); and Plaintiff's motion to strike (Doc.
28) and Defendant's Response (Doc. 31).
Findings of Fact
case concerns a dispute regarding Plaintiff Dana McLeod
(McLeod)'s real property located at 14461 State Highway
104, Silverhill, Alabama, 36576. Specifically, on January 26,
2010, McLeod executed a $165, 306.00 mortgage with PHH
Mortgage Corporation (PHH) (formerly a defendant in this
case). (Doc. 23-1 at 1-20). At some point, McLeod failed to
make her mortgage payments and defaulted on the loan. (Doc. 1
at 2-3). PHH foreclosed on the property and on September 17,
2015 held a nonjudicial foreclosure sale where the property
sold for $157, 925.66. (Id.; Doc. 23-1 at 22).
conjunction with the foreclosure, PHH retained Defendant
Field Asset Services, LLC (FAS) to secure and maintain
McLeod's real property. FAS subsequently retained a local
contractor, Rowe Enterprises, Inc. (Rowe) to photograph the
property, investigate the premises, replace broken deck
planks, mow the grass, make repairs, etc. (Docs. 23-1 at
November 17, 2015, McLeod initiated this action by filing a
complaint against PHH in the Circuit Court of Baldwin County,
Alabama. (Doc. 1). McLeod's claims as to PHH surrounded
the rights, duties and liabilities of the parties under the
mortgage and the servicing of her loan and foreclosure of the
property - redemption, to set aside the foreclosure, damages,
etc. (Id.) On December 18, 2015, PHH removed the
state court action to this Court. (Id.) On April 21,
2016, McLeod amended her complaint to add FAS as a party,
asserting two (2) claims against it for destruction of
property/negligence (Count Five) and willful and wanton
destruction of property (Count Six). (Doc. 13). On December
2, 2016, FAS moved for summary judgment on those counts.
(Doc. 23). On December 6, 2016, all of McLeod's claims
against PHH were dismissed with prejudice. (Doc. 26). Only
McLeod's claims against FAS remain.
Motion to Strike
outset, McLeod moves to strike the legal grounds/basis for
FAS' motion related to the issues of vicarious liability
(for non-party Rowe) and Section 6-5-253 Ala.
Code (diminished value of property), contending that
such have been improperly raised by FAS for the first time on
summary judgment. As to vicarious liability, McLeod contends
that FAS did not provide proper notice of Rowe being the
individual/party responsible for the property damage (rather
than FAS). However, the record reveals that FAS provided
sufficient notice of its assertion of another person
or other party being responsible for any alleged
property damage, rather than FAS, via the affirmative
defenses asserted in its Answer:
12. Defendant states that the sole proximate cause of the
damages allegedly sustained by the Plaintiff were the
actions, non-actions, or negligence of a person or persons
other than Defendant, for whose actions, non-actions, or
negligence this Defendant is in no way liable.
13. Defendant states that the sole proximate cause of the
damages allegedly sustained by the Plaintiff were the
combination of actions, non-actions or negligence of a person
or persons other than this Defendant, for whose actions,
non-actions or negligence this Defendant is in no way liable.
14. Defendant denies that it is legally responsible for or
liable to the Plaintiff for the acts or omissions of any
26. Defendant denies any liability on the basis of agency
and/or respondeat superior for those acts or omissions
alleged in the complaint.
28. Plaintiff's alleged injuries were caused by acts or
omissions of parties other than this Defendant.
33. This Defendant did not commit any wrongful acts relative
to Plaintiff or Plaintiff's property.
34. Defendant pleads failure to join necessary parties to
(Doc. 17 at ¶¶12-14, 26, 28, 33-34). McLeod thus
received notice of “another” being responsible,
and as such, should have conducted discovery on this defense
to ascertain the existence of non-party Rowe, but failed to
Section 6-5-253, the contention is irrelevant as there are no
redemption counts asserted against FAS. Additionally, due to
the Court's findings set forth below, the issue is moot
for purposes of summary judgment.
McLeod moves to strike FAS' exhibits C, D and E under
Rule 56(c)(2). (Docs. 23-1 at 25-50, 57-58). Motions to
strike material submitted on summary judgment have not been
appropriate since December 2010. Instead, per Rule 56(c)(2),
“[a] party may object that the material cited to
support or dispute a fact cannot be presented in a form that
would be admissible in evidence.” The Advisory
Committee Notes specify that:
Subdivision (c)(2) provides that a party may object
that material cited to support or dispute a fact cannot be
presented in a form that would be admissible in evidence. The
objection functions much as an objection at trial, adjusted
for the pretrial setting. The burden is on the proponent to
show that the material is admissible as presented or to
explain the admissible form that is anticipated. There is
no need to make a separate motion to strike. If the case
goes to trial, failure ...