United States District Court, N.D. Mississippi, Aberdeen Division
ROBERT HATHORN, JR. PLAINTIFF
THE KANSAS CITY SOUTHERN RAILWAY COMPANY, INC., JOHN WRIGHT, and STUART EVAN GRIFFIN DEFENDANTS
ORDER AND MEMORANDUM OPINION
SHARION AYCOCK UNITED STATES DISTRICT JUDGE
Hathorn Jr. originally filed his Complaint  in the Circuit
Court of Winston County, Mississippi on November 28, 2017.
Defendant Kansas City Southern Railway Company, Inc. removed
the case to this Court on December 22, 2017. The
Plaintiff's Complaint asserts a number of claims. Now
before the Court is Defendant Stuart Griffin's Motion for
Summary Judgment  on some of the Plaintiff's
claims. Kansas City Southern joined in the pending
motion. See Joinder [11, 12]. Specifically, these
Defendants now seek dismissal of the Plaintiff's claims
for intentional infliction of emotional distress, abuse of
process, and malicious prosecution.
Matters - Filing Deadlines
Plaintiff failed to respond to the pending Motion for Summary
Judgment within the deadlines imposed by the Local Rules.
See L. U. Civ R. 7(b). Instead, the Plaintiff filed
a Response  and Brief  outside the deadlines, without
leave from the Court. Even after the Defendants raised the
issue of the late filing in their summary judgment briefing,
the Plaintiff failed to offer any explanation for the late
filing, or to request any form of relief from the deadlines.
The Court notes that this is not the first time
Plaintiff's counsel has failed to meet dispositive motion
deadlines and failed to provide any excuse for doing so.
These repeated failures by Plaintiff's counsel place the
Court in a difficult position. On one hand the Court must
enforce its own rules, and the deadlines imposed by the rules
are not optional. See Blackard v. City of Southaven,
No. 2:11-CV-6-NBB, 2012 WL 827192, at *3 (N.D. Miss. Mar. 9,
2012). On the other hand, Rule 56 makes it clear that there
is “no summary judgment by default” and even a
complete lack of a response by the Plaintiff does not alter
the Court's summary judgment inquiry. See Fed.
R. Civ. P. 56; Calais v. Theriot, 589 Fed.Appx. 310,
311 (5th Cir. 2015); Hibernia Nat'l Bank v.
Administracion Cent. Sociedad Anonima, 776 F.2d 1277,
1279 (5th Cir. 1985).
the complete lack of explanation for the late filing, the
Court strikes the Plaintiff's response and brief. The
Court also puts Plaintiff's counsel on notice that
further violations of the Local Rules will result in
sanctions. See L. U. Civ R. Preamble. The Court has
nevertheless conducted an independent review of the record
and will analyze all of the relevant evidence and argument
under the applicable standard of review.
Rule of Civil Procedure 56 governs summary judgment. Summary
judgment is warranted when the evidence reveals no genuine
dispute regarding any material fact, and the moving party is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a).
The rule “mandates the entry of summary judgment, after
adequate time for discovery and upon 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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
moving party “bears the initial responsibility of
informing the district court of the basis for its motion and
identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material
fact.” Id. at 323, 106 S.Ct. 2548. The
nonmoving party must then “go beyond the
pleadings” and “designate ‘specific facts
showing that there is a genuine issue for trial.'”
Id. at 324, 106 S.Ct. 2548 (citation omitted). In
reviewing the evidence, factual controversies are to be
resolved in favor of the non-movant, “but only when . .
. both parties have submitted evidence of contradictory
facts.” Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994). When such contradictory facts
exist, the Court may “not make credibility
determinations or weigh the evidence.” Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120
S.Ct. 2097, 147 L.Ed.2d 105 (2000).
and Procedural Background
September 25, 2015 the Plaintiff was injured while attempting
to cross the rail line in Louisville, Mississippi. The
Plaintiff's foot was caught in the coupling mechanism
between two railcars. The crossing and the train were owned
by Defendant Kansas City Southern. Defendant Griffin is a
Claim Agent for Kansas City Southern and took the
Plaintiff's recorded statement some time after the
incident. Defendant Wright was the train's conductor.
City Southern initiated a criminal trespass case against the
Plaintiff in the Louisville Municipal Court on October 5,
2015. The Plaintiff was arrested and released on bond on
March 11, 2016, and his case was set for trial on May 10,
2016. The Plaintiff failed to appear for his trial, but the
Municipal Court was able to contact him by telephone. The
Municipal Court records indicate that “Defendant
entered a plea of guilty” to Willful Trespassing Miss.
Code Ann. § 97-17-87 and,
On May 10, 2016, the Defendant did not appear in Court. I
spoke with him by phone May 12, 2016 to make sure he was not
in jail or hospital and he advised he had changed his mind to
[sic] and wanted cash bond to be used as payment of fine.
August 15, 2017, at the Plaintiff's request, the
Louisville Municipal Court entered an agreed order expunging
the Plaintiff's criminal record relevant to this
incident. The Court notes that the Plaintiff was nineteen
years old at the time of the incident, and reached the age of
twenty-one, the legal age of majority in Mississippi, on
February 2, 2016. See Miss. Code Ann. §