*1 Accordingly, of the virtue well-es- circuit, jurisprudence of
tablished this we & ORTHOPEDIC SPORTS INJURY any jurisdiction appellant CLINIC, al., are as to without et except, arguably, Abdul Samaad.4 We ex- Plaintiffs-Appellants, amine his status the next section. LABORATORIES, INC., WANG
B. Defendant-Appellee. City of Dallas contends that the 90-4278, Nos. 90-4341. appeal notice of is ineffective even as to Appeals, United States Court of Samaad, notice “fails name a Mr. as the Fifth Circuit. body single Plaintiff name wholly notice.” This assertion is without Jan. merit.
In Barnett v. Petro-Tex Chem. (5th Cir.), denied, 893 F.2d cert.
— U.S. -, 3274, 111 L.Ed.2d (1990), appeal held that a notice of appellant
was effective as to an named in body caption, where the of the notice “Plaintiffs above-named.” The
referred to
only distinction between Barnett and the here,
instant case is that the notice refers “Plaintiffs,” not “Plaintiffs above- caption
named.” But as the here states Samaad, al., Muhammad et Plain
“Abdul reference,
tiffs,” body, in the to “Plain amply pur includes Mr.
tiffs” Samaad
poses of Torres. summary, opera-
In we conclude appeal, February
tive notice of which is the notice, appellant is effective as Samaad; jurisdiction we are without
Abdul purported appellants.
as to the other appeal in
motion to dismiss the No. 90-1099 respect
is DENIED with to Abdul Samaad respect to all other
and GRANTED
appellants.
that,
jurisprudential
limits of Torres for some
4. One result of this determination is
as the
reason,
appears
scholarly
appellant,
but if so it
that he is
sole
Mr. Samaad would be liable for
jeopardy.
placing his clients in some
Hen-
might
imposed.
costs or sanctions that
Cf.
(no
City
City,
at
drix v.
911 F.2d
Yazoo
Torres,
See
would have lost on statute-of-limitations issue anyway). *2 Alexander, Edward K. Jr. and Robert W. Fenet, Williams, Fenet, Woodley, Palmer & Norman, Charles, La., plaintiffs- for Lake appellants. Irvin, Lynn Farley K.
James Ives Benson, Labauve, Milling, Randall K. Miller, Woodward, Hillyer, Pierson & New Orleans, La., defendant-appellee. RUBIN, SMITH, Before BARKSDALE, Judges. Circuit SMITH, Judge: JERRY E. Circuit (the Sports Injury Orthopedic & Clinic)bought Lab- oratories, (Wang), Inc. and contracted with perform repairs on Wang to maintain and attempting computer, to fix the it. While requested Wang’s employees and used the and, back-up disk in the course Clinic’slast repairs, years lost five attempted of their accounting on of medical and data stored the disk. Clinic, physicians, and its member Wang in corporations sued
their medical recklessness, negligence, court for state damages in excess of negligence, and gross the case to fed- million. removed $1 diversity. Wang eral court on basis partial for and received moved court, the district which judgment from claims to those limited the Clinic’s parties’ mainte- damages by the allowed the individ- agreement and dismissed nance professional medical ual doctors corporations. certifi- successfully requested
The Clinic 54(b) and 28 under Fed.R.Civ.P. cation 1292(b) ap- a notice of and filed U.S.C. § supple- first also filed a peal. The Clinic alleging complaint amended mental and Louisiana Un- claims under the three new Protec- and Consumer fair Trade Practices red- law of (UTPA), the Louisiana Act tion hibition, verify and the federal antitrust laws. It cop- To that the information was ied, supplemental employee later filed a second Warded and a Clinic ran a complaint. Wang again procedure. amended success- verification The Clinic also had fully summary judgment. back-up moved for an extra set of referred to as back- up July set no. 1. Warded returned pursues interlocutory now its The Clinic *3 cable, computer to fix a loose as the- would (1) appeal. summary judg- It contends that operate. not After installation of the new on its inappropriate ment was claim of board, computer appeared the to be work- (2) gross negligence; the court erred in not ing. ipsa of applying loquitur; the doctrine res (3) 4, summary judgment inappropriate August problem, was On the code errors (called errors”), deceptive again. on claims unfair or its of “191 surfaced War- (4) practices; summary judgment inap- thought alignment might was ded the disk be redhibition; propriate problem. began testing align- on its claim for He the (5) ruling erred in that the individ- accept- the court ment and found it to be within an corporations range, ual doctors and their lacked able but there were still 191 errors. 6, adequate standing Wang. Finding August to sue Wang representa- On two other error, joined no we affirm. tives Warded at the Clinic. On that day, Doyle performed back-up a on set no.
I. put 1. The machine was disassembled and together, back and Warded returned the bought' computer The Clinic a from following Monday after the additional Wang Wang in 1984 and contracted for to Wang employees had not been able to fix repairs perform maintain and on it. The problem Friday. the A back-up on was purchased program Clinic also a software 2, attempted on set no. but it was unsuc- Cycare, (Cycare), keep from Inc. to track of cessful, back-up and ad data on set no. the medical records and accounts and like- was erased. The Clinic still had set no. 1. Cycare wise contracted with to maintain the software. August Wang representatives On re- replaced turned the problems mag- Clinic and the began having The with Clinic net, transducer, (code velocity squad appearing the when voice errors machine) assembly completed turning July realignment. the in the on Warded, technician, Wang back-up Paul The information the service on disk needed began working problem on the that month. the be transferred back onto hard disk (eraseable replaced the alignments Warded EPROM so that the new would coincide disk; programmable read-only memory)1 back-up board with the without such rea- computer, lignment on the and that seemed to solve the data would be inaccessible. problem. Replacing part required attempted, the the When this was the first disk of this, the reformatted. To do disks be set no. did not onto the hard drive. placed significant, the removable disk has to be into This is as ad three disks of reformatted, back-up (disk the disk drive and which eras- each set are essential no. 1 currently es the data on and then the contained codes to read the information on disks.). up the hard disk to be data on has backed other to the removable disk. disk is hard parties dispute why disk no. 1 would reformatted, and the data then is transfer- copy. not The Clinic contends that the removable disk red from back Wang employees responsible were for the hard disk. Doyle data loss. claims that she overheard working computer, say on the placed Before War- Warded that he should not have disk; however, employees magnet dell instructed two Clinic on that she was up computer. to back the data on the Prior the same room and did not see on July magnet placed. to the new board’s installation on what disk was Warded Doyle, employee, Gloria a Clinic ran a back- admits he made the statement. Neverthe- up back-up put to the data and created a mag- set no. less he contends the disk he computer chips 1. EPROMS are which contain disk drive. operating computer's basic instructions for net on was not disk no. but was one of material.” Managers, Inc. Professional Fawer, Brian, Zatzkis, Moreover, Hardy averred & his service disks. (5th Cir.1986). F.2d The substan- damage to the disk is inconsistent tive law identifies those facts that are ma- damage that would have occurred terial, “[ojnly disputes over facts that placing magnet it. might affect the outcome of the suit under presents an affidavit from its governing properly preclude law will White, expert, alleges Thomas entry judgment.” grossly negligent using Liberty Anderson v. Lobby, back-up copy attempting repairs last while 242, 248, 2505, 2510, 91 L.Ed.2d failing the machine and in make (1986). copies, sufficient to test and number *4 magistrate As the recognized, sum verify back-ups the before were mary judgment proper turns on whether a performed, print and to the data before jury question presented, judge is is attempting .to reformat or the last generally weigh not to evidence or .the deposition data. filed affidavits and 249, credibility make choices. Id. at 106 excerpts refuting all of the above. (citing S.Ct. at 2510-11 Adickes v. S.H. Co., 144, 1598,
Kress &
398 U.S.
90 S.Ct.
26
(1970));
L.Ed.2d 142
Zerangue
see
v. TSP
II.
Inc.,
1066,
(5th
Newspapers,
814 F.2d
1071
noted,
appeal
As we have
the
is before Cir.1987).
moving party
If the
carries its
interlocutory
this court on
certification.2
56(c),
oppos
burden under
the
Fed.R.Civ.P.
only
remaining in
issue
the district
ing party
simply
must do more than
show
against Wang
court is the Clinic’s action
“metaphysical
some
doubt as to the materi
contract;
al
damages
as limited
the
facts.” Matsushita Elec. Indus. Co. v.
574, 586,
Zenith Radio
106
being
abeyance pend-
in
that matter is
held
1348, 1356,
(1986).
S.Ct.
Johns-Manville Sales The Clinic maintains that the dis (5th Cir.1985). “The mere existence of 904 incorrectly granted Wang’s trict court first issue, therefore, disputed factual does summary judgment gross motion on the summary judgment. not foreclose The dis- negligence It issue.3 contends that the genuine, wrong accepting magis- court in pute must be and the facts must was the summary judgment, unnecessary appealability notes that as to the indi- we find it 2. corporations' procedural doctors and their claims is resolve this issue. vidual ap- uncertain. The certification order for this 13, "that reasonable minds district held peal certifies the order of December 1988 13, Wang’s person- 1989), could differ as to whether (amended January relating grossly negligent. Clearly 15, 1989, nel’s conduct was gross negligence, and the November gross negligence has not exhibited the been deceptive on redhibition and unfair and order personnel.” defendant’s practices, but it adds that the December 1988, 13, 1989, 13, Indeed, January "gross negligence” "ordinary neg- orders are made 54(b). significantly degree. appealable ligence” final and under rule The Jan- are different in 464, 11, uary Pagano, amended order made the dismissal of Driscoll v. 313 Mass. 48 N.E.2d 13 (1943). negligence substantially corporations doctors and their final so that 13 Gross is the Thus, appreciably higher magnitude ordinary appealed. in than could district Aronson, negligence. appealability 231 Mass. certified the already of an order it had Altman (1919). negligence appealable ap- 121 N.E. Gross made in fact had been appeal voluntarily -just simple pealed, (cid:127)more than inadvertence. "It but dis- legal duty Making complicat- present even more amounts to indifference to missed. matters ed, legal obligations forgetfulness and to utter so the Clinic deleted the individual losses in ap- persons may complaint. The far as be affected. It is second amended notice of other Clinic, doctors, legal duty palpable peal violation of includes the and their cor- heedless respecting rights porations. Id. Given our decision to affirm the others.” (D.Mass.1982) do F.Supp. Clinic’s evi- conclusion trate’s adequately has Wang’s not believe that the Clinic opposition in presented dence White, presented to create a is- motion, expert, its evidence an affidavit gross negli- material sue of material fact as to genuine issue of to create a failed has, however, sufficiently gence claim.4 claim. It fact as that issues of material fact demonstrated Instead, maintains that the Clinic ordinary negli- may regarding its exist affi unfairly dismissed White’s gence claim. lacking upon improperly facts davit as adequately detailed opin Although the Clinic opinion and erred which to base an prof- disqualification of of a the caselaw on the issue the form ing on an ultimate magistrate found expert opinions, fered cites a number legal conclusion. these fits each of that White’s affidavit Peteet v. Dow Chemical of cases such as Indeed, Cir.), denied, requirements. (5th disqualification Co., cert. F.2d 1428 — wholly wholly or almost -, 107 L.Ed.2d White’s affidavit U.S. supported by suffi- conclusory and is not (1989), Pfizer, Hermes v. magis- Cir.1988), agree thus (5th cient facts. We to demonstrate F.2d 66 court that the affidavit is inadmissible and trate and the affidavit was not White’s *5 Wang’s summary to insufficient to defeat and was sufficient unqualified -per se gross negligence on the judgment fact. motion issue of create a material issue. and affirm disagree with the Clinic We recognized a level gross negli- We have that there is summary judgment on the below which an affidavit gross negligence would of conclusoriness
gence
While
issue.
provide
if
is
the basis
damages clause in must not sink
to
of
void the limitation
Louisiana,
issue of material fact. We
see La.Civ.
in either
the contract
1987),
may
in-
(West
held that the district
2004
or Massa- have
Ann. art.
Code
reliability and foundation of
chusetts,
Papale,
quire
v.
541
into the
Gillespie
see
simple negligence)
recognized
in its duties and that
also
courts have
The Louisiana
gross negligence and ordi
gross negligence
between
of
difference
nary negligence.
was the cause of the loss
data_
Beauregard
v.
Elec.
In Cates
Cir.1975),
907,
Inc.,
Coop.,
So.2d
916
3d
316
subject
acceptable
the last
It is never
to
367,
denied,
'd,
U.S.
So.2d
cert.
429
aff
properly
copy
to even a
of valuable data
97,
(1976),
833,
the court
S.Ct.
(citing Wright, C. A. Miller & M. Federal Practice and 2d Procedure: Civil The Clinic next maintains that the (1983)). principle It seems that this § inappropriately granted where, especially applicable should as judgment decep on its claims of unfair or here, expert opining gross negli *6 practices. disagree. tive trade We Both gence, properly an issue more left magistrate the court and the correctly de Moreover, judges juries. and affi White’s termined that the facts that the Clinic al explanation davit offers no of how he dis leges concerning simply this issue “do not tinguishes simple gross negli between and present a involving any situation unfair gence. practice.” trade “Without more than credentials and a alleged supplemental The Clinic in its subjective opinion, expert’s testimony an complaint Wang’s practice that of “deliber- Viterbo, ‘it that is so' is not admissible” ately failing notify customers of known basis, F.2d at 424. the On this defects their constituted unfair properly granted Wang’s summary judg deceptive practices trade the under gross negligence ment the motion on issue. ” words, Louisiana In other [UTPA].... Serv., Haspel See v. Rollins Protective potential problems the knew of 4th So.2d Cir. the old model but until the EPROM waited 1986)(affirming summary judgment on wil problems anything Clinic’s occurred to do negligence ful or wanton because con about it. The filed three affidavits in Clinic liability tract’s limitation of clause was (i.e., Rea, opposition summary judgment clear and because insufficient evidence of Abshire). Abernathy, magistrate negligence presented). concluded that the affidavits were contra- dictory conclusory and that there was IV. genuine no issue of material fact as to ipsa raised loquitur Clinic res deceptive practices.5 Wang’s partial as a bar to motion for sum Wang argues pro- that the is not mary judgment gross negligence Clinic tected the UTPA because it is not a claim. The did not address this report, competitor Wang in his and the did not and because issue Clinic business appear "injurious Rea’s and Abshire's be and customs to cus- affidavits "latent defects” attempts bring gross negligence back into the tomers.” Abernathy’s case. affidavit at least addressed that Massachusetts substan- computer does not fall We believe of the purchase negligence is- govern the tive law should transac- of a consumer the definition within contract dispute. in this Since the sues agree. “Consum- Act. We tion under the in the case of damages for limited provides any in- means transaction er transaction choice-of- Wang’s negligence, the contract’s natural commerce to a volving trade or law specifying Massachusetts law clause transaction is subject of which person, applies to law also applies. Massachusetts personal, family or primarily intended for issue, in order to since use.” La.Rev.Stat.Ann. 51:- household § gross and determination between make the 1987). Moreover, (West 1402(3) Massa- ordinary negligence, we must use allege cognizable violation Clinic did not negligence as a ordinary law on chusetts of the UTPA.6 starting point. Thus, that discrepancies between VI. should be what state’s two standards here, comparison be- and not a relevant argues that the further ordinary negligence tween Massachusetts’s inappropriately granted gross negligence law of Louisi- law redhibition. judgment on its claim for argu- accepting But even the Clinic’s ana. of a sale on “Redhibition is the avoidance point, prevail. would not ment on this still thing vice defect in the account of some sold, absolutely use it either which renders argues it demon The Clinic that less, imper so or its use inconvenient fact as issue of material strated fect, supposed it must alleged defect the old to whether the he purchased had buyer would not redhibitory rose to level of a EPROM Ann. art. of the vice.” La.Civ.Code known legal was the vice and whether that vice 1987); (West Boyce First, see LaFleur damages. cause Clinic’s (La.1974). per 294 So.2d Mach. that the Clinic made a contends contentions Louisiana law of disagree We with the Clinic’s waiver under missible by agreeing summary judgment. cause of action for redhibition uphold warranty. to the limited See California law argues that Louisiana The Clinic Lovett, 633, 636 204 So.2d Chem. Co. v. Mas- govern all its claims and that should *7 Cir.1967). agreement ex (La.App. 3d The governs only the construc- sachusetts law “warranties, express or pressly excludes interpretation agreement. tion or limitation implied, including without Mas- Wang parties that the chose contends merchantability or fitness for warranties of governs all is- and that it sachusetts law Datamatic, particular purpose.” See sues. 715, 720 F.Supp. Inc. v. IBM (5th (W.D.La.1985), F.2d 458 Cir. aff'd, 795 states, Agreement contract “This The 1986) (similar war manufacturer’s limited in, made and shall deemed to have been buyer’s redhibitory ac ranty precluded a the laws of pursuant to shall be construed tion). of Massachusetts.” the commonwealth merely provides argues that this Second, Clinic an failed to establish Clinic interpreted, not is to be that the contract its case—that the old essential element of governed, complete under Massachusetts “A fail- enforced or was defective. EPROM accordingly, that tort or other element ren- proof law and ure of on an essential Wang’s facts immaterial....” arising performance ders all other claims out All that at 1122. Washington, 839 F.2d precluded by the contract. are not sive, Sales, Inc., substantially injurious unscrupulous, v. Southern Milk 6. See Gautreau consumers.”); Cir.1987) (The Coffey Peoples also Mort see 3d So.2d Loan, Inc., (La.App. gage 408 So.2d to an & conversion did not amount found tortious Cir.1981) stated, (declining impose penalties un prac- practice 2d and "[a] unfair trade charging company against public policy finance der UTPA when it offends tice is unfair immoral, unethical, interest). oppres- practice usurious when the proved the Clinic was that a trade corporations service personal who suffer damage Wang representatives bulletin notified as a result negligence, of another’s can sue might by replacing error codes be solved under Louisiana law. We do not believe Eprom upgraded Ep- the R7 with the RIO that there is a liability case for tort here. years rom. notes that four had The complaints doctors’ stem from the con- passed problems before the Clinic’s sur- tract, computer and data apparently faced and problems nothing that those had are the Clinic’s property, and the doctors Moreover, to do with the loss of data. are complaining about the same loss of Eprom replaced R7 had been when the data data on which the Clinic’sclaims are based. loss occurred. short, In the individual doctors and their corporations allege damage no to property Eprom Clinic counters that the R7 they own for which the Clinic could not “set in resulting motion a series of events” recover.7 argu- the loss of its data. The Clinic’s tenuous, agree ment is Finding error, no we AFFIRM the deci- and the summary judg- district court that sion of the district granting Wang’s appropriate. Putting simply, ment was summary judgment motions. merchantability, redhibition smacks of expressly which the Clinic waived. RUBIN, ALVIN B. Judge, Circuit dissenting: VII. I respectfully I dissent. think that the The Clinic further contends that the White, affidavit of Thomas N. Jr. was not ruling court erred the individual “conclusory” unsupported by “specific physicians corporations and their lacked facts”, majority opinion it, as the labels but standing Wang. argument to sue Its sufficiently explicit to create a without merit. dispute fact, for, of material if credited concluded that the indi- factfinder, support it was sufficient to physicians corporations vidual and their finding gross negligence. standing lacked because the contract was opinions These are the facts and based Wang, between the Clinic and the doctors on fact recited White: were not named in the contract and did not I have reviewed the circumstances con- sign separate entity. is a cerning the loss of all business law, partnership Under Louisiana is an 11, 1987, August by Orthopedic data on entity partners distinct from its is the Sports Injury In Clinic. so review- proper party to maintain an action for dam- ing I have examined the affidavits of age partnership property. La.Civ. Betty Ledbetter, Paul Wardel and J. 2801; Dalby Code art. v. United States deposition transcripts Doyle, of Gloria Co., Fidelity & 365 So.2d Guar. together Mark Bimle and Ed Martinez *8 Cir.1978). 1st with attached exhibits. concluded that there is no indication 8}5 ‡ ij! H* # the contract was entered into on behalf of the individual or the members individual acceptable subject It is never to corporations, partnership. rather than the prop- last of data to valuable even a any part- Nor there is indication that the erly computer working unless extreme nership protect will not the individual inter- taken, precautions have been unless And, partners. ests under Fed.R. subjecting there is no alternative to party Civ.P. the real in interest is the data to such risk and when there is Clinic, as the basis for suit is the ser- compelling a need to use the data. agreement. vice of None those circumstances existed. worse, Clinic frames the issue as whether In addition and much doctors, professional subjected only copy the individual or their of this this valuable physicians’ anguish 7. We also believe the claim for men- tal is meritless. my authority. der control and I wrote computer a known to be
data to malfunctioning. computer specifications computer for in- Spaceflight at the Manned stallations negligence related acts of well
Other At I Center Houston. one time was practice standard of are: below the responsible very large complete a for initially to make sufficient a. Failure operation tracking and satellite missile (at two) of the first set of copies least space with the United States effort about (and format backup disks in the next engineers working and technicians for set). saving the old format me, operation a said included centralized verify the refor- b. Failure to test and computer system. I continue to process backup mat and with valueless exposure procedures to standard in the subjecting before valuable data test data computer systems.... operations of process. to this attorney prac- I an licensed to am also Subjecting c. valuable data years tice law in California with fifteen modifying repairing loss while large part my practice A experience. Sports Injury com- Orthopedic and involving electron- is devoted matters puter. companies their computer ics and print d. Failure to make a out of the computer operations. attempting a reformat or data before copy. copy of the last judgment on I would not substitute our alleged negligence whether appear to me to be These statements who, and, they opin- “gross” that of the factfinder explicit to the extent state ions, sufficiently hearing testimony, might based on recited facts. con- after under Fed. opinion, comply An which is admissible clude that Wardel’s failures necessarily Evidence a con- standards, Rule of industry explicitly described clusion, but that is not sufficient to con- White, justify affixing were sufficient to “conclusory” opinion all demn it as else pejorative description1 to what the ma- evidence would be inadmissible. jority concedes was sufficient to constitute negligence proved. if is, therefore,
White’s affidavit sufficient genuine issue of material fact. to create a juries are ex- judges
Neither nor know or
pected know what standards of care are repairing under the
required in majority in the
circumstances described question what would
opinion. part of a America, constitute on UNITED STATES gross negligence by layman, but what is Plaintiff-Appellee, expert. computer-servicing We are de- pendent industry’s standards of care CHAMBERS, Glynn Robert to determine both whether there was Defendant-Appellant. and, so, if departure from the standard nonconformity egregious that was. how No. 90-8061. qualified inform the fact- White was well Appeals, United States Court of According finder of both. to his affidavit Fifth Circuit. experience: had this he *9 engineer, I am an electronics BSEE 1991. Jan. University.... Southern Methodist Rehearing Denied Feb. began working computers I first computer installations 1963 and doing I so to date. have continued complete large computer systems un- had Arms, vituperative epi- ordinary negligence Ry. with a & St. Paul
1. Milwaukee
(1875)
thet”).
("gross negligence is