Drayton v. United Airlines ( 2023 )

Case: 23-20017 Document: 00516889926 Page: 1 Date Filed: 09/11/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 23-20017
FILED
September 11, 2023
Summary Calendar
____________ Lyle W. Cayce
Clerk
Philip Drayton,
Plaintiff—Appellant,
versus
United Airlines, Incorporated; Air Serv Corporation;
ABM Industries, Incorporated; ABM Aviation,
Incorporated,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CV-2993
______________________________
Before Dennis, Engelhardt, and Wilson, Circuit Judges.
Per Curiam:*
Plaintiff-Appellant Philip Drayton filed this personal injury suit
against Defendants-Appellees United Airlines, Inc. (“United”), ABM Avia-
tion Inc., ABM Industries Incorporated, and Air Serv Corporation (“De-
fendants”). Drayton alleges that he suffered injuries to his leg as a result of
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 23-20017
the Defendants’ negligence. The Defendants moved for summary judgment.
The district court granted summary judgment in favor of the Defendants,
finding that Drayton had failed to offer evidence that would prove an essen-
tial element of his claim. We AFFIRM.
Facts and Procedural Background
Drayton filed his complaint in the District Court of Harris County,
Texas, on July 15, 2019. The Defendants removed the action to the Southern
District of Texas on August 12, 2019. Drayton alleges in his complaint that
he was injured on July 17, 2017, while traveling on United Flight 1844 from
Houston, Texas to San Francisco, California. Drayton claims he suffered his
injuries when the wheelchair he was riding in collided with a wall during the
boarding process. He asserts a negligence claim based on his injuries, claim-
ing the Defendants breached their duty of care by “failing to provide ordinary
care in transporting him to the plane,” proximately causing his injuries.
Following discovery, the Defendants filed their motion for summary
judgment on November 8, 2015. In support of their motion, the Defendants
largely relied on Drayton’s own deposition testimony. At his deposition,
Drayton testified that he didn’t “remember the exact day,” or even the year,
of the injury. At first, he stated that he was not sure what airline he traveled
on when he suffered his injury, but later recalled that it was on American Air-
lines, not United, one of the defendants here. The Defendants argued that
based on the deposition and other summary judgment evidence, Drayton
could not demonstrate that the Defendants owed him a duty of care or
breached that duty, warranting summary judgment.
In response to the Defendants’ motion for summary judgment, Dray-
ton pointed to the August 8, 2017, statement of Philippa Lawrence (the
“Lawrence statement”), another passenger on United Flight 1844. Drayton
disclosed this statement to the Defendants on November 8, 2022, the same
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day they filed their motion for summary judgment. In the document, Law-
rence stated that while boarding, she saw that the employee pushing Drayton
in the wheelchair was “not really paying attention to what she’s doing.” She
then stated that the employee pushed Drayton into a wall, and as a result he
appeared to be in a considerable amount of pain. In addition to her statement,
Drayton also attached his airline tickets for the United flight, interrogatory
responses to ABM aviation stating that he was “assigned a Customer Care
Agent to assist with boarding” that flight, and his deposition as summary
judgment evidence.
After considering the Defendants’ motion and Drayton’s response,
the district court found that Drayton’s delayed disclosure of the Lawrence
statement was untimely under Fed. R. Civ. P. 26(a)(1)(A)(ii), and thus disre-
garded it under Fed. R. Civ. P. 37(c)(1). It then found that without the Law-
rence statement, the “plaintiff has failed to offer evidence that his injury oc-
curred in relation to a United flight or any other conduct by Defendants.”
Thus, because Drayton could not “satisfy the elements of breach or causa-
tion,” the district court granted the Defendants’ motion for summary judg-
ment. Drayton appealed to this Court.
Summary Judgment Standard
This court reviews grants of summary judgment de novo. Templet v.
HydroChem Inc., 367 F.3d 473, 477 (5th Cir. 2004) (citing Tango Transp. v.
Healthcare Fin. Servs. LLC, 322 F.3d 888, 890 (5th Cir. 2003)). Summary
judgment is only appropriate when “the movant shows that there is no
genuine dispute as to any material fact.” Fed. R. Civ. P. 56(a). “A party
asserting that a fact cannot be or is genuinely disputed must support the
assertion by . . . citing to particular parts of materials in the record . . .” Fed.
R. Civ. P. 56(c)(1)(A). “[T]he plain language of Rule 56(c) mandates the
entry of summary judgment, after adequate time for discovery and upon
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motion, against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party
will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986).
Federal Rules of Civil Procedure 26(a) & 37(c)
Rule 26(a)(1)(A) requires that the parties “must . . . provide to the
other parties . . . all documents . . . that the disclosing party has in its
possession, custody, or control and may use to support its claims or defenses,
unless the use would be solely for impeachment.” Fed. R. Civ. P.
26(a)(1)(A)(ii). These disclosures “must be made within 14 days after the
parties’ Rule 26(f) conference unless a different time is set by stipulation or
court order.” Fed. R. Civ. P. 26(a)(1)(C). Under Rule 37, “[i]f a party
fails to provide information . . . as required by Rule 26(a). . . the party is not
allowed to use that information . . . to supply evidence on a motion…unless
the failure was substantially justified or is harmless.” Fed. R. Civ. P.
37(c)(1).
Analysis
1. The district court properly disregarded the Lawrence statement
The district court disregarded the Lawrence statement under Rule
37(c) when considering the Defendants’ motion for summary judgment
because Drayton failed to timely disclose the document under Rule 26(a)(1).
We review a district court’s decision to exclude evidence pursuant to Rule
37(c) for abuse of discretion. CQ, Inc. v. TXU Min. Co., L.P., 565 F.3d 268,
277 (5th Cir. 2009).
The district court did not abuse its discretion here, and correctly
disregarded the Lawrence statement. Drayton disclosed the statement to the
Defendants more than two years after the parties’ Rule 26(f) conference, well
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in expiration of the 14-day window provided for timely disclosure. See Fed.
R. Civ. P. Rule 26(A)(1)(C). Contrary to Drayton’s arguments on appeal,
the mere disclosure of Lawrence’s name as a potential witness is insufficient
to escape the ambit of the Rule. It requires disclosure of documents, such as
her statement, not merely her name as a witness.
Nor does this Court see any reason to disturb the district court’s
finding that the disclosure was not substantially justified or harmless.
Drayton makes no attempt on appeal to argue that his failure to disclose the
statement was substantially justified, and his arguments that it was harmless
are unavailing. And as we have held, permitting new evidence at the summary
judgment stage is not harmless under Rule 37. See CQ, Inc., 565 F.3d at 280(“[G]iven the advanced stage of the litigation [motions for summary
judgment], permitting the new evidence would not have been harmless.”).
2. Summary judgment is appropriate on the remaining evidence
Drayton argues on appeal that even without the Lawrence statement,
summary judgment is inappropriate because the district court “gave
improper weight” to the plaintiff’s deposition testimony and disputed fact
issues remain.
To avoid summary judgment, the non-moving party must establish
“the existence of an element essential to that party’s case . . . on which that
party will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322.
Under Texas law, the elements of a negligence claim include “a duty, a
breach of that duty, and damages proximately caused by the breach.” Western
Investments, Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). The parties
agree that Drayton flew on United Flight 1844 on July 17, 2017, and received
boarding assistance. However, without the Lawrence statement, Drayton
cannot point to any facts in the record showing that his injuries occurred on
that day or on any United flight. This alone demonstrates that he has failed
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to establish the essential elements of breach and proximate causation,
warranting summary judgment. See Celotex Corp., 477 U.S. at 322.
Further, contrary to Drayton’s assertions, the district court did not
“improperly weigh” his deposition testimony. Rather than making any kind
of credibility determination, it discussed his deposition testimony to note that
it failed to establish an essential element of his claim.
Conclusion
Because the district court properly granted the Defendants’ motion
for summary judgment, we AFFIRM the district court’s judgment.
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