United States District Court, W.D. Virginia, Harrisonburg Division
KATHLEEN E. O'NEILL LEARY, Plaintiff,
ESTEBAN DELAROSA, JR., . Defendants.
Michael F. Urbanski United States District Judge
matter comes before the court on defendants Esteban Delarosa,
Jr. and SDR Trucking, LCC's motion to strike, ECF No. 33,
and motion for summary judgment, ECF No. 20. Plaintiff
Kathleen O'Neill Leary responded to these motions, ECF
Nos. 27, 39, and defendants replied, ECF Nos. 34, 40. The
court addressed these matters at a hearing on April 6, 2017.
For the reasons set forth below, the court will deny
defendants' motion for summary judgment and the related
motion to strike.
case is about an auto accident that occurred on December 26,
2012 on Interstate 81 in Frederick County, Virginia.
Delarosa, as an employee of SDR Trucking,  was driving a
semi-trailer truck that collided with plaintiff O'Neill
Leary's suburban utility vehicle ("SUV").
O'Neill Leary alleged injuries and filed suit in
Frederick County Circuit Court against Delarosa and SDR
Trucking for negligence, claiming $500, 000 in damages.
Defendants removed this case to federal court on July 19,
2016 under diversity jurisdiction.
time of the accident, snow and freezing rain made for
slippery roads and poor visibility. O'Neill Leary and
Delarosa were travelling northbound on 1-81 when O'Neill
Leary engaged her brakes and her SUV began to slide. See
PL's Dep., ECF No. 46, at 48:3-4 ("I tapped my
brakes and my rear tires fishtailed."); Delarosa Dep.,
ECF No. 44, at, 31:5-7 ("[S]he starts to hit the brakes.
Then she spins out. She starts to spin."). Delarosa, who
was travelling behind O'Neill Leary, "pump[ed the]
brakes" to avoid colliding with her SUV. Delarosa Dep.,
32:2-10, 35:14. His efforts were unsuccessful and the front
of Delarosa's truck collided with the rear of O'Neill
Leary's SUV. Delarosa Dep., 37:12-21.
Police Trooper Joshua Myers attended to the accident and
issued citations to both Delarosa and O'Neill Leary.
Delarosa received a ticket for following too closely in
violation of Virginia Code § 46.2-816, which subjected
him to a fine. Va. Code Ann. § 16.1-69.40:1; Rules of
the Supreme Court of Virginia 3B:2. Delarosa prepaid the
penalty associated with the citation. Com, v.
Delarosa, GT13000167-00 (Va. Gen. Dist. finalized Feb.
25, 2013). O'Neill Leary received a ticket for reckless
driving in violation of Virginia Code § 46.2-852. She
appeared before the Frederick General District Court, which
dismissed her citation by nolle prosequi. Com, v.
O'Neill-Leary. GT13000168-00 (Va. Gen. Dist.
finalized May 21, 2013).
move to strike O'Neill Leary's filings in opposition
to summary judgment because she submitted those filings
beyond the deadline set forth in the Scheduling Order. ECF
No. 33. The Scheduling Order requires opposition briefs to be
filed within fourteen days of the date of service of the
movant's brief. ECF No. 17 ¶ 8. Defendants filed
their motion for summary judgment on February 7, 2017. ECF
No. 21. O'Neill Leary filed her response in opposition to
summary judgment, ECF No. 27, and supporting brief, ECF No.
28, on March 6, 2017, twelve days past the
deadline. These delayed circumstances, defendants
assert, "compel the conclusion that Plaintiffs recent
filings with this Court be stricken." ECF No, 34, at 6.
Defendants further contend that as a consequence of striking
O'Neill Leary's opposition to summary judgment,
defendants' motion for summary judgment would be
unopposed, and therefore, the court must dismiss this action
with prejudice. ECF No. 40, at 1.
party fails to comply with the court's Scheduling Order,
the court may "issue any just orders" to remedy the
noncompliance. Fed.R.Civ.P. 16(f). Appropriate sanctions
include "prohibiting the disobedient party from ...
opposing designated claims or defenses, or from introducing
designated matters in evidence." Fed.R.Civ.P.
37(b)(2)(A) (ii) (incorporated by reference in Rule 16(f)).
If such sanctions would lead to dismissal with prejudice,
then the punishment would be "an extreme sanction"
only appropriate in rare circumstances. Jones v.
Thompson, 996 F.2d 261, 264 (10th Cir. 1993). In
determining whether sanctions are appropriate, the court must
consider, inter alia, "(1) the degree of actual
prejudice to the defendant, (2) the amount of interference
with the judicial process, [and] (3) the culpability of the
litigant." Jones, 996 F.2d at 264. The decision
to impose sanctions is within the trial court's
discretion. Bolus v. Fleetwood RV. Inc., 646
F.App'x 316, 317 (4th Cir. 2016), cert, denied.
137 S.Ct. 640 (2017).
case, defendants have not articulated any manner in which the
untimeliness of O'Neill Leary's filings caused
defendants prejudice. Moreover, O'Neill Leary's two
week (or so) delay in filing her opposition to summary
judgment did not significantly interfere with the judicial
process. While O'Neill Leary should have exercised more
diligence, the absence of prejudice indicates that her
culpability in failing to do so was negligible. Therefore,
the court will deny defendants' motion to strike
O'Neill Leary's response in opposition to summary
judgment and will consider that response in assessing
defendants' motion for summary judgment.
move for summary judgment under Rule 56, arguing (1)
O'Neill Leary's contributory negligence bars
plaintiffs recovery; and (2) Delarosa was not negligent in
operating his truck as a matter of law. ECF Nos. 20, 21.
O'Neill Leary argues in response that multiple questions
of fact are in dispute and require resolution by a jury. The
court agrees with O'Neill Leary and will deny
defendants' motion for summary judgment.
to Rule 56(a), the court must "grant summary judgment if
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(a); Celotex Corp. v.
Catrett. 477 U.S. 317, 322 (1986); Glynn v. EDO
Corp.. 710 F.3d 209, 213 (4th Cir. 2013). When making
this determination, the court should consider "the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with . . . [any]
affidavits" filed by the parties. Celotex, 477
U.S. at 322. Whether a fact is material depends on the
relevant substantive law. Anderson v. Liberty Lobby.
Inc.. 477 U.S. 242, 248 (1986). "Only disputes over
facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary
judgment. Factual disputes that are irrelevant or unnecessary
will not be counted." Id. (citation omitted).
The moving party bears the initial burden of demonstrating
the absence of a genuine issue of material fact.
Celotex, 477 ...