Opinion
No. 3:03-CV-1713-P.
June 25, 2004
ORDER
Now before the Court is Defendants' Motion for Summary Judgment, filed March 16, 2004, without a response from Plaintiffs. After careful consideration of the briefing, the evidence, and the applicable law, the Court hereby GRANTS Defendants' Motion for Summary Judgment.
BACKGROUND
This lawsuit stems from a claim made by pro se Plaintiffs under their State Farm homeowner's policy for mold contamination in their home. (Pet. at ¶ V.) Plaintiffs' assert the following claims against State Farm Lloyds: negligence, breach of contract, "mishandling" of their insurance claim, negligent infliction of emotion distress, intentional misrepresentations, fraudulent concealment, civil rights violations, unfair business practices, and malice. Id. at ¶ V-X. Defendants move for summary judgment arguing that Plaintiffs' failure to respond to Defendants' Request for Admissions deemed their admissions admitted, and the deemed admissions negate all of Plaintiffs' liability allegations.
DISCUSSION
I. Summary Judgment Legal Standard.Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party bears the burden of informing the district court of the basis for its belief that there is an absence of a genuine issue for trial, and of identifying those portions of the record that demonstrate such an absence. Id. However, all evidence and the reasonable inferences to be drawn therefrom must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
Once the party has made an initial showing, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The party defending the motion for summary judgment cannot defeat the motion unless she provides specific facts that show the case presents a genuine issue of material fact, such that a reasonable jury might return a verdict in his favor. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). Mere assertions of a factual dispute unsupported by probative evidence will not prevent a summary judgment. Id. at 248-50; Abbot v. Equity Group, Inc., 2 F.3d 613, 619 (5th Cir. 1993). In other words, conclusory statements, speculation and unsubstantiated assertions will not suffice to defeat a motion for summary judgment. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc).
If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to his case, and on which he bears the burden of proof at trial, summary judgment is mandatory. Celotex, 477 U.S. at 322-24; Washington v. Armstrong World Indus., Inc., 839 F.2d 1121, 1122 (5th Cir. 1988). A motion for summary judgment cannot be granted simply because there is no opposition, even if the failure to oppose it violates a local rule. Hibernia Nat'l Bank v. Adminstracion Central Sociedad Anonima, 776 F.3d 1277, 1279 (5th Cir. 1985). However, when the nonmovant fails to provide response identifying the disputed issues of fact, the Court is entitled to accept the movant's description of the undisputed facts as prima facie evidence of its entitlement to judgment. Eversly v. MBank Dallas, 843 F.2d 172, 173-174 (5th Cir. 1988); Nordar Holdings, Inc. v. Western Sec. (USA) Ltd., No. 3:96-CV-0427-H, 1996 WL 739019, *2 (N.D. Tex. Dec. 18, 1996).
Finally, the Court has no duty to search the record for triable issues. Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). "The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise matter in which the evidence supports his or her claim." Id. A party may not rely upon "unsubstantiated assertions" as competent summary judgment evidence. Id.
II. Plaintiffs' Claims of Negligent Infliction of Emotional Distress and Civil Rights Violations Fail as a Matter of Law.
A. Negligent Infliction of Emotional Distress.
Plaintiffs assert a claim of negligent infliction of emotional distress. (Pet. at ¶ X.) However, Texas does not recognize a cause of action for negligent infliction of emotional distress. Tex. Farm Bureau Mut. Ins. Cos. v. Sears, 84 S.W.3d 604, 613 (Tex. 2002) (citing Boyles v. Kerr, 855 S.W.2d 593, 597 (Tex. 1993)). Therefore, Plaintiffs' claim of negligent infliction of emotional distress fails as a matter of law.
B. Civil Rights.
Plaintiffs also reference civil rights in their Petition. (Pet. at ¶ X.) To assert a civil action for the deprivation of rights, Plaintiffs must allege facts to show (1) the deprivation of a right secured by the Constitution and the laws of the United States; and (2) that the deprivation occurred under color of state law. Bass v. Parkwood Hosp., 180 F.3d 234, 241 (5th Cir. 1999). However, Plaintiffs fail to allege any facts to show that the deprivation of a right occurred under state law. Furthermore, Defendant State Farm Lloyds is not a state actor. Rather, Defendant State Farm Lloyds is a private insurer. (Defs.' App. at 38.) Therefore, to the extent Plaintiffs seek to assert a claim of civil rights violations, this claim fails as a matter of law.
III. Plaintiffs' Failure to Respond to Defendants' Request for Admissions Entitles Defendants to Summary Judgment on Plaintiffs' Remaining Claims.
Defendant argues that Plaintiffs' remaining claims of negligence, breach of contract, "mishandling" of their insurance claim, intentional misrepresentations, fraudulent concealment, unfair business practices, and malice also fail as a matter of law since Plaintiffs failed to respond to Defendants' Request for Admissions.
Federal Rule of Civil Procedure 36(a) provides that "if a request for admission remains unanswered, with no objection lodged, for more than thirty days after service of the request, it is deemed admitted." Eber v. Harris County Hosp. Dist., 130 F. Supp.2d 847, 853 (S.D. Tex. 2001). Any matter admitted under Rule 36(a) is conclusively established. Fed.R.Civ.P. 36(b); see id. Deemed admissions may serve as the basis for summary judgment. See Dukes v. South Carolina Ins. Co., 770 F.2d 545, 549 (5th Cir. 1985) (affirming the district court's summary judgment finding where the plaintiffs failed to respond to a request for admissions, and thus, the district court deemed admitted an essential fact thereby negating a genuine issue of material fact); In re Liberty Trust Co., 903 F.2d 1053, 1056 (5th Cir. 1990) (holding "the bankruptcy court acted properly when it granted [an] unopposed motion for summary judgment, particularly so in light of the deemed admissions"); Western Horizontal Drilling v. Jonnet Energy Corp., 11 F.3d 65, 70 (5th Cir. 1994) (affirming the district court's summary judgment finding of alter ego based on a deemed admission).
On November 26, 2003, Defendants' attorney mailed a Request for Admissions to Plaintiffs, advising them that pursuant to Federal Rule of Civil Procedure 34, Plaintiffs' responses were due at his office within thirty days of receipt. (Defs.' App. at 17-18.) In their Request for Admissions, Defendants requested, among other things, that Plaintiffs admit they were not complaining of the handling of their insurance claim, Defendants did not breach their contract with them, Defendants did not fraudulently conceal any facts from them, Defendants did not act negligently or in bad faith while investigating their claims, Defendants did not intentionally misrepresent any facts to them, and Defendants did not engage in unfair business practices. Id. at 19-25. In his Affidavit, Defendants' attorney swears that as of March 16, 2004, Plaintiffs had not responded to the Request for Admissions. Id. at 2. Accordingly, all of the admissions are deemed admitted and conclusively established. See Fed.R.Civ.P. 36(a) (b). Since these deemed admissions negate all of Plaintiffs' liability allegations, Defendants are entitled to summary judgment on Plaintiffs' remaining claims.
For the reasons set forth above, the Court GRANTS Defendants' Motion for Summary Judgment.