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O'Neill Leary v. Delarosa

United States District Court, W.D. Virginia, Harrisonburg Division

June 21, 2017

ESTEBAN DELAROSA, JR., . Defendants.


          Michael F. Urbanski United States District Judge

         This 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.[1] 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.


         This 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, [2] 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.

         At the 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.

         State 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).[3]


         Defendants 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.[4] 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.

         When a 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).

         In this 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.


         Defendants 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.


         Pursuant 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 ...

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