UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 0:20-cv-61241-RUIZ

APRIL HICKS,

Plaintiff,

v.

UNITED STATES OF AMERICA,

Defendant.

_______________________________/

DEFENDANT UNITED STATES OF AMERICA’S

REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT

Defendant, United States of America, by and through the undersigned Assistant United 

States Attorney, and pursuant to Rule 56 and Local Rule 56.1, files this Reply in Support of its 

Motion for Summary Judgment [D.E. 34] (the “MSJ”), and in support, Defendant states as follows:

I. PLAINTIFF’S PROCEDURAL DEFECTS IN RESPONSE

Plaintiff’s Response in Opposition to the MSJ [D.E. 41] (the “Response”) and her 

corresponding Statement of Material Facts [D.E. 40] (the “Response SMF”) do not create an issue 

of material fact sufficient to defeat Defendant’s MSJ, on both Plaintiff’s claim and Defendant’s 

Counterclaim.

1 Additionally, Plaintiff does not overcome Defendant’s legal arguments. Thus, 

Defendant respectfully submits that the Court should grant judgment in its favor. 

1 Furthermore, as Plaintiff fails to rebut or address in her Response Defendant’s arguments in the MSJ 

regarding Defendant’s Counterclaim, the Court may therefore deem that Plaintiff abandoned such 

opposition. See, e.g., Everest Indemnity Insurance Co. v. Portfino Towers Condo. Ass’n., Inc., Case No. 

18-cv-24644, 2019 WL 801446, at *1 (S.D. Fla. July 26, 2019) (Altonaga, J.) (quoting Hudson v. Norfolk 

S. Ry. Co., 209 F. Supp. 2d 1301, 1324 (N.D. Ga. 2001) (finding that defendant is entitled to summary 

judgment on all counts of plaintiff’s complaint) (citing Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 

587, 599 (11th Cir. 1995) for the proposition that “[w]hen a party fails to respond to an argument or 

otherwise address a claim, the Court deems such argument or claim abandoned”)).

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In response to many of the facts asserted by Defendant it its SMF, Plaintiff merely states 

that these facts are “disputed” or “disputed as unknown” without any elaboration or citations to 

the record. This is a violation of both the Federal Rules of Civil Procedure as well as the Local 

Rules of the Southern District of Florida. Second, many of Plaintiff’s “additional facts” are 

unnecessary as they are simply disputed and irrelevant as expected by the rules on summary 

judgment motions.

Specifically, Rule 56 of the Federal Rules of Civil Procedure requires that “[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 . . . or showing that the materials cited do not establish 

the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible 

evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A)-(B) (emphasis added). Likewise, the 

plain language of Local Rule 56.1 requires both the movant and non-movant to support their factual 

statements with “specific references to pleadings, depositions, answers to interrogatories, 

admissions, and affidavits.” S.D. Fla. L.R. 56.1(a)(2); see also S.D. Fla. L.R. 56.1(b)(2) (“If an 

opponent’s Statement of Material Facts disputes a fact in the movant’s Statement of Material Facts, 

then the evidentiary citations supporting the opponent’s position must be limited to evidence 

specific to that particular dispute.”); S.D. Fla. L.R. 56.1(b)(3) (noting that the movant may respond 

to a non-movant’s additional facts, “if disputed, [by] citing to particular parts of materials in the 

record in the same manner as required by subsections (b)(1) and(b)(2).”). “The local rule is 

unambiguous: it requires specific references to record evidence in the statement of undisputed facts 

or the opposition to that statement (i.e., a de facto statement of disputed facts).” Katchmore Luhrs, 

LLC v. Allianz Glob. Corp. & Specialty, No. 15-23420, 2017 WL 432671, at *2-3 (S.D. Fla. Jan. 

31, 2017) (explaining that a non-movant’s summary judgment opposition violated the Local Rule 

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where it “merely listed which paragraphs it disputes” and “did not explain why—and it surely did 

not include specific references to record evidence (such as deposition testimony or interrogatory 

answers).”). 

“Plaintiff’s failure to comply with the Local Rules essentially leaves the Court with ‘the 

functional analog of an unopposed motion for summary judgment.’” Lugo v. Carnival Corp., 154 

F. Supp. 3d 1341, 1343 (S.D. Fla. 2015) (quoting Reese v. Herbert, 527 F.3d 1253, 1268 (11th Cir. 

2008)). Here, the Court should deem admitted the facts submitted by Defendant that Plaintiff 

failed to properly rebut. State Farm Mut. Auto. Ins. Co. v. Health and Wellness Servs., Inc., 446 F. 

Supp. 3d 1032, 1044 (S.D. Fla. 2020) (deeming facts admitted where the non-movant’s “attempts 

to dispute [the movant]’s allegations [] failed to cite to the record at all”). Specifically, this would 

mean Defendant’s facts in the USA SMF ¶¶ 10, 12, 14 are admitted. See L.R. 56.1(c) (“Effect of 

Failure to Controvert Undisputed Facts.”) Plaintiff also attempted to claim “disputed-in-part” in 

response to facts in USA’s SMF ¶¶ 18, 21, 22, 26, 30, even though such a response is not permitted 

by Local Rule. See Response SMF ¶¶ 18, 21, 22, 26, 30. Although these facts are deemed 

admitted, however, the “[C]ourt must still review the movant’s citations to the record to determine 

if there is, indeed, no genuine issue of material fact.” Mann v. Taser Int’l, Inc., 588 F.3d 1291, 

1303 (11th Cir. 2009). Defendant submits that the citations it provides to support its facts establish 

that these facts are not in dispute. In particular, the Court may note as undisputed the amount of 

damages sustained by Defendant as it relates to its Counterclaim concerning the damage to the 

USPS truck. See USA SMF ¶ 14, Response SMF ¶ 14.

Next, as outlined in Defendant’s Reply to the Response SMF [D.E. 44], Plaintiff asserts 45 

“additional facts,” many of which are completely irrelevant and none of which preclude summary 

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judgment in favor of Defendant.2 For example, Plaintiff seemingly attempts to argue that Mr. 

Hilton, the USPS driver, was inexperienced and in a hurry on the day of the accident, and that he 

is lying to protect his job. See D.E. 44, Reply to the Response SMF ¶¶ 41-44; 56. She also attempts 

to present as undisputed fact that Mr. Hilton was making a U-turn in order to deliver his next 

package. See D.E. 44, Reply to the Response SMF ¶¶ 45-53. However, the record belies Plaintiff’s 

attempts to create issues of material fact. Furthermore, Plaintiff’s back-door attempt to assert a 

Daubert challenge of Dr. Rentschler, Defendant’s accident reconstruction expert whose testimony 

and opinions as to how the accident occurred are unrebutted, is also supported by review of the 

record evidence. See D.E. 44, Reply to the Response SMF ¶¶ 63-80. 

As Plaintiff has failed to overcome her burden with summary judgment evidence as 

required by Rule 56(c), Defendant’s MSJ must be granted. 

II. SUMMARY OF PLAINTIFF’S COUNTERARGUMENT AND WHY IT FAILS

In addition to completely failing to distinguish her case from that of Scott v. Harris, 550 

U.S. 372 (2007) as set forth in Defendant’s MSJ, Plaintiff has made apparent that she wishes to 

create an issue of “material fact” based on her own testimony. See Response. Plaintiff also appears 

to go further, discounting her own intelligence in hopes that by abandoning her prior sworn 

2 Plaintiff also appears to confuse the standard she faces and make her own (belated) cross-claim 

for summary judgment in her favor, rather than countering Defendant’s MSJ. See Response at p.3 

(Court “should-find that Mr. Hilton made a U-turn in front of [Plaintiff] ...”). And to that end, she 

creates unsupported contingencies of dangerous alternative scenarios she wishes the Court to find. 

See id. (“pulled safely into the customer’s driveway” or “responsible for leaving his vehicle parked 

in the bike lane, instead of in the driveway....”). These must be ignored as Plaintiff did not timely 

file her own summary judgment motion by the deadline set forth in the Court’s scheduling order, 

and provides no explanation for why such an untimely motion should be considered. See, e.g., 

Pollo Campestre, S.A. de C.V. v. Campero, Inc., No. 19-20001-CIV, 2019 WL 3752575, at *3 

(S.D. Fla. Aug. 8, 2019) (rejecting untimely response to summary judgment motion when no leave 

of court sought and no explanation for late filing offered). 

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testimony of how the Accident happened, she may defeat summary judgment in favor of 

Defendant. She fails on both fronts, and nothing Plaintiff has asserted in her Response precludes 

judgment in favor of Defendant. 

In her Response, Plaintiff attempts to recant her prior testimony concerning how the 

accident occurred based on the word “perpendicular.” See Response at p.4. In support, Plaintiff 

through declaration claims that she did not understand the word “perpendicular.” See D.E. 39-3, 

Decl. of Plaintiff. This belated attempt to alter her testimony fails upon review of applicable Rules

governing deposition testimony. First, any argument of Plaintiff relating to her testimony has been 

waived under Federal Rule of Civil Procedure 30(e) as she did not timely submit an errata sheet

correcting any of her testimony. Fed. R. Civ. P. 30(e) (directing “deponent must be allowed 30 

days after being notified by the officer that the [deposition] transcript ... is available in which” to 

review and make changes to the transcript.) Plaintiff’s deposition was June 15, 2021, and at the 

end of the proceeding, her counsel indicated the transcript would be read. D.E. 39-1, 188:17. 

Plaintiff and her counsel were further notified by letter dated June 22, 2021, that she had 30 days 

to read and sign the deposition. See D.E. 39-1, p.192. Plaintiff did not review and sign the 

transcript, thereby waiving her right. See id.; Fed. R. Civ. P. 32(d)(4) (“An objection to how the 

officer transcribed the testimony—or prepared, signed, certified, sealed, endorsed, sent, or 

otherwise dealt with the deposition—is waived unless a motion to suppress is made promptly after 

the error or irregularity becomes known or, with reasonable diligence, could have been known.”).

Throughout her deposition, Plaintiff made extensive use of hand gestures. See generally, 

D.E. 39-1, Hicks Dep. (revealing 39 separate instances of “(indicating)” noted by the court reporter

during the entire deposition). Plaintiff was especially effusive using her hands to recount how the 

USPS truck “shot out” across traffic, and other details regarding the Accident. See D.E. 39-1 at 

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pp. 63:10-18, 65:7-19, 66:19-22, 71:3-17, 72:1-17, 73:13, 74:6-16, 75:3-6, 82:22, 83:7-12, 84:11-

21, 96:11-18, 105:20-23, 106:1-3.3 Plaintiff confirmed she had no other way to explain what 

happened aside from using her hands. See D.E. 39-1, 71:18-25 – 72:1-9. Again, without the 

benefit of the video recording of the deposition before the Court upon presentation of a motion 

like the MSJ here, and aware of the potential ambiguity of Plaintiff’s “indicating”, undersigned 

counsel expressly clarified what Plaintiff was indicating with her hands, and she agreed. See D.E. 

39-1, 71:18-24, 82:23-25 – 83:1-6, 84:17-24. Furthermore, not once did Plaintiff ask for 

clarification as to any of the words used, and Plaintiff’s counsel did not assert a single objection 

to questions regarding how the Accident occurred. See generally, D.E. 39-1, pp. 63-106. Thus,

to the extent Plaintiff’s counsel is relying on the declaration of Plaintiff to now object to the form 

of the questions posed, they are waived as none were asserted during the deposition. See Fed. R. 

Civ. P. 30(c)(2) (“An objection at the time of the examination—whether ... to any other aspect of 

the deposition—must be noted on the record, but the examination still proceeds; the testimony is 

taken subject to any objection.”); Fed. R. Civ. P. 32(d)(3)(B) (“An objection to an error or 

irregularity at an oral examination is waived if:(i) it relates to the manner of taking the deposition, 

the form of a question or answer, the oath or affirmation, a party's conduct, or other matters that 

might have been corrected at that time; and (ii) it is not timely made during the deposition.”).

Plaintiff’s next overarching theme in her Response, which falls flat, is that an accident 

reconstruction expert is not necessary for understanding what happened, claiming it is 

“[n]onsense” (Response at p.5) and then proceeds to claim that “expert testimony is not needed” 

for twelve reasons, which are primarily citations to her own testimony at deposition. See Response 

3 Plaintiff also used gestures in explaining her medical injuries. See D.E. 39-1, Hicks Dep. at pp. 

33:1-3, 107:7-10, 115:1-2, 122:2, 139:7, 152:11, 153:19. No objections were interposed by her 

counsel for these questions or gestures either. See id.

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at pp.6-7. These citations to Plaintiff’s deposition testimony are insufficient as a matter of law to 

create an issue of material fact, and Plaintiff takes a lax approach in her interpretation of these 

citations as she stretches the statements made in isolation throughout the Response and Response 

SMF to somehow fit her narrative. See Response at pp.6-7, and Response SMF ¶¶ 38-59; Ellis v.

England, 432 F.3d 1321, 1326 (11th Cir. 2005). Plaintiff has also hinged her success on her 

unsupported theory that Mr. Hilton was in fear of losing his job and therefore would lie about the 

Accident. See Response at p.4 (“[Mr. Hilton] certainly would lose his job while serving as new 

employee had he admitted to making a dangerous U-turn.”) and (“Mr. Hilton was not honest about 

how body moved in the crash.”) Nowhere in his deposition, that Plaintiff attaches wholesale to 

her Notice, are such statements made by Mr. Hilton. Furthermore, as outlined in the Reply to the 

Response SMF, Plaintiff’s citations to the record do not support these “facts.” See D.E. 44, Reply 

to Response SMF ¶¶ 56-57. 

Plaintiff next attempts a back-door Daubert challenge when confronted with the fact that 

Plaintiff must proceed to trial with unrebutted expert testimony of Defendant’s accident 

reconstruction expert, Dr. Rentschler, who opines that Plaintiff’s version of events, i.e. that the 

USPS truck was making a U-turn, is impossible. See Response at pp.6-7. This is untimely and 

improper. See, e.g., Vision Power, LLC v. Midnight Express Power Boats, Inc., 18-CV-61700, 

2020 WL 770547, at *2 (S.D. Fla. Feb. 18, 2020) (rejecting motion in limine to exclude expert 

references as “the motion is effectively a backdoor Daubert challenge”). Furthermore, again as 

outlined in the in the Reply to the Response SMF, Plaintiff’s citations to the record made in an 

attempt to discredit Dr. Rentschler are, in fact, a mischaracterization of Dr. Rentschler’s testimony. 

See D.E. 44, Reply to Response SMF ¶¶ 63; 65-72; 74-80. A review of the record evidence instead 

confirms that judgement in Defendant’s favor is proper. 

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WHEREFORE, Defendant requests this Court enter judgment in its favor on the claim 

asserted in Plaintiff’s First Amended Complaint as well as judgment in its favor on its 

Counterclaim, and any other such relief it deems just and proper. 

Dated: September 14, 2021 Respectfully submitted,

JUAN ANTONIO GONZALEZ

ACTING UNITED STATES ATTORNEY 

By: Monica L. Haddad 

Monica L. Haddad 

Assistant U.S. Attorney

Florida Bar No. 99426

Email: Monica.Haddad@usdoj.gov

U.S. Attorney’s Office, Southern District of Florida

500 S. Australian Avenue, Suite 400

West Palm Beach, Florida 33401

Telephone: (561) 209-1004

Mary Beth Ricke 

Assistant U.S. Attorney

Florida Bar No. 107213 

E-mail: Mary.Ricke@usdoj.gov

500 East Broward Blvd., Suite 700 

Fort Lauderdale, Florida 33394 

Telephone: (954) 660-5137 

Counsel for Defendant, United States of America

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