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Amparan v. Demir

United States District Court, D. New Mexico

February 13, 2017



         THIS 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 AS MOOT.


         I. Undisputed Facts[1]

         This 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 consortium.

         Defendant 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.[2]

         On July 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 Lake Powell.

         Following 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 Mr. Karadeniz.

         After 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.

         Mr. 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 drive.[3]

         Avis' 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.[4]

         Finally, 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.

         Count 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).

         Lake 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).

         II. Evidentiary Issues

         Before 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 responses states:

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.

         Second, 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.

         Plaintiffs 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.

         As 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 248.[5]

         Virtually 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 him.”).


         Summary 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).

         A fact 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).

         “[A] 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).


         Lake 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 ...

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