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Acosta v. United States

United States District Court, D. New Mexico

April 7, 2017

JOSE ACOSTA, Jr., Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          PRETRIAL ORDER

          STEPHAN M. VIDMAR United States Magistrate Judge.

         THIS MATTER is before the Court pursuant to Fed.R.Civ.P. 16.

         I. APPEARANCES

         Attorneys who will try this action:

         For Plaintiff: Jonathan S. Harris Laura B. De La Cruz Schechter, McElwee, Shaffer & Harris, LLP 3200 Travis, 3rd Floor Houston, Texas 77006 Telephone: (713) 524-3500 Facsimile: (866) 696-5610 jharris@smslegal.com Ldelacruz@smslegal.com

         For Defendant: Manuel Lucero Assistant United States Attorney District of New Mexico 201 3rd Street, Suite 900 Albuquerque, New Mexico 87103 Telephone: (505) 224-1467 Facsimile: (505) 346-7296 Manny.lucero@usdoj.gov

         II. JURISDICTION AND RELIEF SOUGHT

         A. Subject Matter Jurisdiction

         1. Was this action removed or transferred from another forum?

          ___ Yes X No

         2. Is subject matter jurisdiction of this Court contested?

          X Uncontested ___ Contested

         3. Asserted basis for jurisdiction

          ___ Federal Question ___ Diversity X Other Statutory Provision(s) Invoked: 28 U.S.C. § 1346(b)

         B. Personal Jurisdiction and Venue

         1. Is personal jurisdiction contested?

          X Uncontested ___ Contested

         2. Is venue contested?

          X Uncontested ___ Contested

         C. Are the proper parties before the Court?

          X Uncontested ___ Contested

         D. Identify the affirmative relief sought in this action.

         1. Plaintiff seeks: Plaintiff seeks damages for physical pain and mental anguish in the past and future; lost earnings in the past and loss of future earning capacity; physical impairment in the past and future; physical disfigurement in the past and future; and, reasonable medical expenses in the past and future. Plaintiff also seeks damages for his injuries by way of pre-judgment and post-judgment interest payments for all damages he has suffered and have accrued by the time of judgment.

         2. Defendant seeks: Final judgment in favor of Defendant, dismissal of the above-styled and numbered cause of action in its entirety with prejudice, Defendant's costs, if any, and all such other, further and different relief, at law or in equity, to which Defendant may be entitled.

         III. BRIEF DESCRIPTION OF NATURE OF CLAIMS/DEFENSES

         A. Plaintiff's claims: This is a personal injury claim stemming from a Union Pacific train colliding with a U.S. Army vehicle that was crossing the train tracks on June 25, 2014 in the state of New Mexico. At the time of the incident, Plaintiff was operating the locomotive. The United States Army was participating in a military convoy when a U.S. Army truck stopped and left part of its truck on the railroad tracks. Plaintiff attempted to stop the locomotive, but it ultimately crashed into the military truck. The impact of the collision between the military truck, weighing at least 53, 100 lbs., and the locomotive caused the military truck to be lifted from the ground. As a result of the impact, Plaintiff's body was thrusted forward, causing him to strike the throttle, and then thrusted backwards, causing him to hit the wall. The impact caused Plaintiff to sustain injuries to his body, including, his head, lower back, neck, knees, and shoulders.

         Plaintiff alleges that the United States Army failed to yield the right of way at the crossing and violated the Railroad-Highway Grade Crossing rules. Plaintiff contends that on the occasion in question, Defendant violated the duty owed to Plaintiff to exercise ordinary care in the operation of a motor vehicle. Plaintiff alleges that the Defendant is liable for the actions of its governmental personnel and employees, who were acting in the course and scope of their employment in furtherance of the interests of Defendant. Plaintiff alleges the Defendant was negligent by operating a vehicle without paying adequate attention, by failing to control speed, by failing to clear all vehicles from an active railroad track, by leaving a vehicle on an active railroad track, and by failing to maintain a lookout for Plaintiff. Defendant's actions or omissions in the occurrence constitute negligence and negligence per se. Said negligence proximately caused the occurrence and Plaintiff's injuries and damages.

         B. Defendant's defenses: On June 25, 2014 the United States Army was transferring equipment from New Mexico to Oklahoma via convoy. While passing through Alamogordo, New Mexico the convoy was crossing railroad tracks in the city when the convoy came to a stop. One vehicle was stopped on the tracks when they realized a train was approaching. Military personnel exited the vehicle to help guide the driver off the tracks. The vehicle was moved off the tracks to a point where they believed the train could pass. The train scraped by the vehicle causing minor damage to the military vehicle and the train. No claim for property damage has been made by the railroad regarding the train. If any physical injury to the Plaintiff is claimed, the injuries would be minimal based on the physics of the impact. There is no causal connection between the minimal impact and injuries claimed by the Plaintiff.

         Defendant further asserts the following specific defenses in this matter:

1. Defendant, through its employees, agents, and servants, acted at all relevant times with due care and diligence, and, therefore, Defendant could not have breached any actionable duty owed to Plaintiff.
2. Defendant affirmatively asserts that Plaintiff has failed to state a claim upon which the relief they seek may be based and, further, Defendant denies that Plaintiff is entitled to any relief arising from any of the events as alleged in the Complaint.
3. The injuries and damages alleged by Plaintiff in the Complaint, which injuries and damages are denied, were not proximately caused by a negligent or wrongful act or omission of an employee, agent, or agency of the United States acting in the scope of his federal employment.
4. Any injuries and damages allegedly sustained by Plaintiff, were due, in whole or part, to Jose Acosta's own negligent acts or omissions, or those of others, known or unknown, over whom Defendant had no control.
5. If Defendant was negligent, which is expressly denied, under the FTCA, the comparative negligence or fault of Jose Acosta should be used to offset in whole or in part any recovery by Plaintiff against Defendant, and Defendant may only be held responsible for its proportionate share of the fault, if any. Defendant affirmatively asserts that, to the extent Plaintiff may or will recover monies and/or benefits from the United States government for injuries they sustained based on the same set of facts at issue in this case, Defendant is entitled to an offset of any award made herein.
6. Plaintiff has failed to mitigate any damage claims that relate to future employment claims raised in the administrative claim or at trial.

         IV. FACTUAL CONTENTIONS UNDERLYING CLAIMS/DEFENSES

         A. Stipulated Factual Contentions

         The parties agree to the following facts listed separately below:

1. The incident forming the basis of this lawsuit took place on June 25, 2014 in Alamogordo, New Mexico.
2. At the time of the incident, Plaintiff was an engineer aboard a Union Pacific train traveling on the railroad tracks in Alamogordo, New Mexico.
3. At the time of the incident, the United States Army was participating in a military convoy that was transferring equipment from New Mexico to Oklahoma.

         B. Contested Material Facts

         1. Plaintiff's Contentions:

a. At, or immediately prior to, the time of the incident, the military convoy in question came to a stop on the railroad tracks.
b. At, or immediately prior to, the time of the incident, a U.S. Army truck was left with its rear extending onto the on the railroad tracks.
c. Immediately prior to the incident, Plaintiff repeatedly sounded his whistle and applied the emergency brakes to avoid a collision.
d. At the time of the incident, the United States Army failed to yield the right of way at the crossing.
e. At the time of the incident, Defendant violated the Railroad-Highway Grade Crossing rules.
f. At the time of the incident, Defendant failed to control speed.
g. Prior to crossing, the Defendant failed to clear all vehicles from the active railroad track.
h. At the time of the incident, Defendant failed to maintain a proper lookout for Plaintiff.
i. During the incident, the Union Pacific train and Army truck collided.
j. At the time of the occurrence, Defendant failed the duty it owed to Plaintiff to exercise ordinary care in the operation of a vehicle.
k. Defendant's acts and omissions in the occurrence constitute negligence and/or negligence per se.
l. Defendant's negligent conduct was the proximate cause of the occurrence at issue.
m. Defendant's acts or omissions are the proximate cause of the injuries and damages sustained by the Plaintiff.
n. At the time of the occurrence, Defendant failed the duty it owed to Plaintiff to keep a proper lookout and maintain ...

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