United States District Court, D. New Mexico
EDMUNDO AMPARAN and KIMBERLY L. AMAPARN, Plaintiffs,
MEVLUT BERK DEMIR, DENIZCAN KARADENIZ, AVIS RENT A CAR SYSTEM, LLC LAKE POWELL CAR RENTAL COMPANIES an Arizona Limited Liability Company, PV HOLDING CORPORATION, a Delaware Corporation, Defendants.
OPINION AND ORDER GRANTING DEFENDANT LAKE POWELL CAR RENTAL
COMPANIES' MOTION FOR SUMMARY JUDGMENT AND DENYING AS
MOOT LAKE POWELL'S MOTION TO STRIKE PLAINTIFFS'
RESPONSE AND LAKE POWELL'S MOTION TO STRIKE EXPERT REPORT
OF JAMES S. TENNANT
MATTER comes before the Court on three of Defendant Lake
Powell Car Rental Companies' motions: Motion for Summary
Judgment filed November 4, 2016 (Doc. 105); Motion to Strike
Plaintiff's Response in Opposition to Lake Powell's
Motion for Summary Judgment (Doc. 117), or Portions Thereof
filed January 11, 2017 (Doc. 124); and Motion to Strike
Expert Report of James S. Tennant and to Exclude James S.
Tennant from Testifying filed January 11, 2017 (Doc. 125).
Having reviewed the relevant pleadings and the applicable
law, and having considered the oral arguments of counsel
presented at the hearing on February 8, 2017, the Court finds
the Motion for Summary Judgment is well-taken, and is
therefore GRANTED. As a result of the Court granting the
Motion for Summary Judgment, the Motions to Strike are DENIED
litigation arises from a car accident that occurred on July
14, 2014, in Albuquerque, New Mexico. As a result of the
accident, Plaintiffs Edmundo Amparan and Kimberly L. Amparan
allege personal injury due to negligence; negligence per
se; negligent entrustment; negligent supervision and
training; mandatory statutory liability; and loss of
Lake Powell Car Rental Companies (“Lake Powell”)
is a licensee of Defendant Avis Rent A Car System, LLC
(“Avis”). Lake Powell is a sole member limited
liability company organized under the laws of Arizona and
located in Page, Arizona. Paul David Williams is the sole
member and owner of Lake Powell. Lake Powell operates under
an Exclusive License Agreement with Avis, which entitles Lake
Powell to use Avis' trade name, trademark, and business
operating system, and obligates Lake Powell to operate its
business in compliance with the Avis Systems Operation
Manual. Lake Powell does not have any employees other than
the owner, Mr. Williams.
14, 2014, Lake Powell and Defendant Denizcan Karadeniz
entered into a car rental transaction. Mr. Karadeniz rented
two vehicles, a Dodge Caravan and a Ford Mustang. Mert Tacir,
who accompanied Mr. Karadeniz, completed an “additional
driver” application and Lake Powell allowed Mr. Tacir
to operate the Ford Mustang. Mr. Tacir was the only
authorized additional driver. Mr. Karadeniz and Mr. Tacir
both presented facially-valid Turkish drivers' licenses
to Mr. Williams when renting the vehicles. Both drivers were
under age 25. Mr. Karadeniz also presented a valid credit
card. Mr. Karadeniz told Mr. Williams he was renting the cars
so that he and his group could go sightseeing. Mr. Karadeniz
stated he planned to return the cars the following day to
the rental transaction, Mr. Karadeniz and Mr. Tacir, together
with Mevlut Berkay Demir and some other individuals,
travelled to New Mexico in the two rental cars. At some point
during their trip, Mr. Demir was permitted to drive the Ford
Mustang and he collided with Mr. Amparan's motorcycle at
the intersection of Comanche and Wyoming in Albuquerque. Mr.
Demir allegedly failed to yield to the green light when
making a left turn in front of Mr. Amparan. Mr. Amparan's
motorcycle did not collide with the Dodge Caravan driven by
the accident, Mr. Demir testified that he did not know that a
driver turning left against a green light must yield to
oncoming traffic. Mr. Demir was 21 years old.
Williams explained that he does not typically rent vehicles
to drivers under age 25, but he has done so in the past. He
explained to Mr. Karadeniz and Mr. Tacir that they were the
only two in the group authorized to drive. Mr. Demir
testified, however, that he understood he was permitted to
standards for qualifying customers for rentals require that
renters be at least 25 years of age, though there are
exceptions to this rule and a manager can override the
25-year age requirement. Avis' representative Ryan Honig
testified that Avis franchisees such as Lake Powell retain
ultimate discretion whether to rent a vehicle to a customer,
including a customer under age 25, although Avis can provide
guidance on the driver qualification procedures. Plaintiffs
state that Avis' rules do not allow a renter under the
age of 25 and that no exceptions applied to this case, so
Lake Powell violated Avis' policies.
Plaintiffs attach to their Response the report of James S.
Tennant, an expert in the vehicle rental industry. Mr.
Tennant opines that the “failure to properly qualify
potential renters will result in danger to the public by
having irresponsible and potentially dangerous persons
driving rental cars.” Doc. 117-5 at 2. Mr. Tennant
further explains that “many rental businesses in the
industry will only rent to persons over 25 years of
age” because “drivers over 25 are safer.”
Id. Drivers under 25 are more frequently involved in
accidents. Thus, Lake Powell acted in a manner that failed to
meet vehicle rental industry standards, which resulted in an
increased risk to the public. Id. at 2-3. Lake
Powell and Avis were negligent in failing to have
“clear procedures and policies” on qualifying
renters. See Id. at 3.
III of Plaintiffs' Amended Complaint alleges Lake Powell
negligently entrusted the vehicles to Mr. Karadeniz, Mr.
Tacir, and Mr. Demir. Count IV states Lake Powell negligently
trained and supervised employees, which caused the subject
accident. Count VII alleges loss of consortium. Lake Powell
filed a Motion for Summary Judgment on these claims on
November 4, 2016 (Doc. 105). Plaintiffs filed a Response on
December 13, 2016 (Doc. 117). Lake Powell filed a Reply on
January 12, 2017 (Doc. 127).
Powell also filed a Motion to Strike Plaintiff's Response
in Opposition to Lake Powell's Motion for Summary
Judgment (Doc. 117), or Portions Thereof on January 11, 2017
(Doc. 124), and Motion to Strike Expert Report of James S.
Tennant (Doc. 117-5), and to Exclude James S. Tennant From
Testifying as an Expert on January 11, 2017 (Doc. 125).
discussing the merits, the Court offers some constructive
criticism to Plaintiffs' counsel regarding the Response
to Lake Powell's Motion for Summary Judgment.
Specifically, the Court's local rule for summary judgment
The Response must contain a concise statement of the material
facts cited by the movant as to which the non-movant contends
a genuine issue does exist. Each fact in dispute must be
numbered, must refer with particularity to those portions of
the record upon which the non-movant relies, and must state
the number of the movant's fact that is disputed. All
material facts set forth in the Memorandum will be deemed
undisputed unless specifically controverted. The Response may
set forth additional facts other than those which respond to
the Memorandum which the non-movant contends are material to
the resolution of the motion. Each additional fact must be
lettered and must refer with particularity to those portions
of the record upon which the non-movant relies.
D.N.M.LR-Civ. 56.1(b) (emphasis added). Plaintiffs state they
do not dispute two of Lake Powell's Undisputed Material
Facts (“UMF”), Nos. 2 and 14, but then go on to
offer additional facts in violation of Rule 56.1(b) and
Federal Rule of Civil Procedure 56(c)(1)(A) by referring to
their Additional Material Facts (“AMF”) section.
In the Court's view, Plaintiffs improperly add facts in
their response to Defendant's UMF, which violates Rule
56.1(b). Thus, the Court will not consider these improper
additional factual recitations.
the Court points out the numerous flaws with Plaintiffs'
AMFs in further violation of Rule 56.1(b) and Federal Rule of
Civil Procedure 56(c). The purpose of those rules is to
isolate additional facts so that the moving party can
determine which facts require a response. Plaintiffs add an
additional 45 facts that span nine pages. The vast majority
of these facts are immaterial, irrelevant, contain hearsay
statements, attempt to assert the subjective thoughts of
others as “facts, ” and constitute assertions
regarding others' motives or beliefs. For example, AMF
No. 3 states, “Mr. Demir understood that the reason for
the inquiry ‘was so that they would know I was one of
the drivers.” Doc. 117 at 5. AMF No. 5 states,
“Mr. Demir believed that he was authorized to drive the
rented vehicles.” Id. AMF No. 14 asserts,
“Mr. Williams believed that younger drivers pose a
greater risk for accidents because of their
inexperience.” The Court has disregarded all such
statements of “fact” that are not supported by
admissible evidence in the record, or that do not represent
information grounded in personal knowledge but are instead
statements of mere belief. A properly supported summary
judgment motion will not be defeated by speculative
inferences, conclusory allegations, or mere conjecture.
Bones v. Honeywell Int'l, Inc., 366 F.3d 869,
875 (10th Cir. 2004). “Testimony which is grounded on
speculation does not suffice to create a genuine issue of
material fact to withstand summary judgment.”
Id. at 876.
attempt to create a plethora of factual disputes, but the
disputes are not genuine. Rather, Plaintiffs add facts that
flesh out the basis for their claims but do not create any
material dispute. For example, AMF No. 7 states that
“Mr. Williams described the criteria he uses in
deciding whether to rent a vehicle to a customer under 25
years of age: the customer must have a credit card, a local
residence, and plan to use the vehicle for work-related
purposes.” Lake Powell disputes AMF No. 7, pointing out
Mr. Williams' deposition testimony does not support the
allegation. See Doc. 127 at 5. The Court concludes
this is one of many instances where the cited material does
not establish the presence of a genuine issue of
material fact because the criteria Mr. Williams uses
in qualifying a renter is not material to elements of a
negligent entrustment claim.
another example, AMF No. 10 states “Mr. Williams knew
Mr. Tacir had not understood or even read the [additional
driver] form even though the form recites that he had.”
Plaintiffs point to portions of Mr. Williams' deposition
where he testified that Mr. Tacir signed the form attesting
to Mr. Tacir being at least 25 years old, while knowing that
Mr. Tacir was only 21. See Doc. 117 at 6. Plaintiffs
apparently include this “fact” to bolster their
claim that Lake Powell negligently entrusted the vehicles.
However, even though disputed, this fact is not material and
would not change the outcome of the case. Whether Mr. Tacir
read the additional driver form or signed an incorrect form
is immaterial because Mr. Tacir is not the driver who
collided with Mr. Amparan's motorcycle; Mr. Demir is.
Moreover, both parties agree that Mr. Williams knew
Mr. Tacir was under age 25, so the circumstances surrounding
Mr. Tacir signing the additional driver form are not
material. In other words, whether Mr. Tacir read the
additional driver form is not material to whether Lake Powell
negligently entrusted any vehicle to Mr. Demir. A
fact is material if it would change the outcome of the case.
Anderson, 477 U.S. at 248; see also Wright ex
rel. Trust Co. of Kansas v. Abbott Labs., Inc., 259 F.3d
1226, 1232 (10th Cir. 2001). A dispute, even if genuine, over
irrelevant or immaterial facts will not defeat a summary
judgment motion. See Anderson, 477 U.S. at
all of Plaintiffs' AMFs contain more than one factual
statement. Moreover, in many instances, Plaintiffs fail to
refer with particularity to the portions of the record on
which they rely and fail to accurately support their factual
contentions in further violation of Rule 56.1(b) and Rule
56(c). Plaintiffs refer the Court to pages upon pages of
deposition transcripts, without any reference to page line.
See Doc. 117 at 4-7. For example, AMF No. 5 states
that “Mr. Karadeniz also indicated after the accident
that he also believed that Mr. Demir was permitted to drive
the vehicles.” See Id. at 5. The AMF refers to
a portion of Mr. Williams' deposition. However, the
material cited does not support the purported factual
assertion. Not only do Plaintiffs cite the page of the
transcript with no reference to the applicable lines, the
excerpt cited involves Mr. Williams explaining to Mr.
Karadeniz that allowing Mr. Demir to drive violated the
rental agreement. See Doc. 117-2 at 15. The Court
will not consider the portions of the record that Plaintiffs
have failed to improperly reference under Rule 56.1(b).
Although the Court views the facts in a summary judgment
motion favorably to the non-movant, there is no requirement
that the Court do the work of Plaintiffs' counsel and
sift through the record in an attempt to find support for
Plaintiffs' factual allegations. See Mitchell v. City
of Moore, Oklahoma, 218 F.3d 1190, 1199 (10th Cir. 2000)
(“The district court was not obligated to comb the
record in order to make [plaintiff's] arguments for
judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits . . . show that there is no genuine issue
as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” Fed.R.Civ.P. 56(c).
Initially, the moving party bears the burden of demonstrating
the absence of a genuine issue of material fact. See
Shapolia v. Los Alamos Nat'l Lab., 922 F.3d 1033,
1036 (10th Cir. 1993) (citations omitted). Once the moving
party meets its initial burden, the nonmoving party must show
that genuine issues remain for trial “as to those
dispositive matters for which it carries the burden of
proof.” Applied Genetics Int'l Inc. v. First
Affiliated Secs., Inc., 912 F.2d 1238, 1241 (10th Cir.
1991) (citation omitted).
is material if it could have an effect on the outcome of the
suit. Smothers v. Solvay Chems., Inc., 740 F.3d 530,
538 (10th Cir. 2014). A dispute over a material fact is
genuine if the evidence presented could allow a rational jury
to find in favor of the nonmoving party. EEOC v.
Horizon/CMS Heathcare Corp., 220 F.3d 1184, 1190 (10th
Cir. 2000). A court is to view the facts in the light most
favorable to the non-moving party and draw all reasonable
inferences in favor of that party. Shero v. City of
Grove, 510 F.3d 1196, 1200 (10th Cir. 2007). A court
cannot weigh the evidence and determine the truth of the
matter, but instead determines whether there is a genuine
issue for trial. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 243 (1986).
complete failure of proof concerning an essential element of
the nonmoving party's case necessarily renders all other
facts immaterial, ” and thus, the moving party is
entitled to judgment as a matter of law. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986).
Powell argues Plaintiffs' negligent entrustment claim
fails as a matter of law for two reasons. First, Lake Powell
did not entrust the Ford Mustang to Mr. Demir. Mr. Tacir and
Mr. Karadeniz were the only two individuals authorized to
operate the vehicles. Thus, there was no entrustment to the
individual who caused the accident. Second, Lake Powell
contends that even if Lake Powell did entrust the vehicle to
Mr. Demir, Plaintiffs' claim still fails because they
have not shown Mr. Demir was incompetent to drive the vehicle
and they have not established Lake Powell knew or should have
known Mr. Demir was incompetent to drive. The Court considers
each argument, and agrees with Defendants that
Plaintiffs' negligent entrustment claim fails as a matter
of law because the undisputed evidence shows Lake Powell did
not know, or have reason to know, Mr. Demir was incompetent
to drive. See Celotex, 477 ...