United States District Court, D. Nebraska
MICHAEL D. NELSON, UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on the Motion to Compel and Motion
for Sanctions Against Magnum Dedicated, Inc. (Filing No. 110)
filed by Defendant Westrock Company, and the Motion to Compel
Magnum LTL, Inc. and Mangum Dedicated, Inc.'s Discovery
Responses (Filing No. 112) filed by Defendant XPO. Magnum
Dedicated filed a brief (Filing No. 113) opposing
Westrock's motion, and both Magnum Dedicated and Magnum
LTL filed a brief (Filing No. 116) opposing XPO's motion.
party strictly complied with the Civil Rules of the United
States District Court for the District of Nebraska when
filing their motions. Defendant XPO did not file a brief with
its motion. See NECivR 7.1(a)(1)(A)(“A motion raising a
substantial issue of law must be supported by a brief filed
and served together with the motion. . . . [F]ailure to brief
an issue raised in a motion may be considered a waiver of
that issue.”). Defendant XPO attached its evidentiary
materials to its motion, rather than attaching it to its
brief or as a separate filing. Neither party provided a
separate index identifying each item nor provided an
affidavit identifying and authenticating any documents
offered as evidence. See NECivR
7.1(a)(2)(B)(“Evidentiary materials may be attached to
the brief if the brief includes a listing of each item of
evidence being filed, and the evidence citations within the
brief provide hyperlinks to the evidence attached and offered
in support of the factual statements. In all other cases,
evidentiary materials may not be attached to the brief but
rather must be filed separately with an index listing each
item of evidence being filed and identifying the motion to
which it relates.”); and NECivR
7.1(a)(2)(C)(“An affidavit must identify and
authenticate any documents offered as evidence.”).
Finally, XPO was not permitted to file its reply brief
without leave of court. See NECivR 7.1(c)(“If
the moving party does not file an initial brief, it may not
file a reply brief without the court's leave.”).
party who does not follow this rule may be considered to have
abandoned in whole or in part that party's position on
the pending motion.” NECivR 7.1. Despite the
parties' noncompliance with the local rules, the
documents before the Court are sufficient to issue informed
rulings on the pending discovery motions, which were both
substantively responded to by the Magnum defendants.
Therefore, the Court will not consider the parties'
positions on their pending motions abandoned. However, the
Court cautions the parties to carefully review and comply
with NECivR 7.1, and any other applicable local rules, when
filing future motions.
Michael Fergin and Ace American Insurance Co., filed the
instant action to recover damages for a shoulder injury
Fergin sustained in the course and scope of his employment
with Becton Dickinson on February 19, 2013. Plaintiffs allege
that, as Fergin was unloading pallets of corrugated cardboard
from a semitrailer delivered and operated by the Magnum
defendants,  corrugated cardboard fell on him when he
opened the left door of the trailer. (Filing No. 64). Becton
Dickinson allegedly provided Defendant Westrock with the
pallets on which to stack the corrugated cardboard for
transportation, and Westrock contracted with Defendant XPO to
store the pallets and load them onto semitrailers. Westrock
alleges it contracted with Defendant Magnum Dedicated to
transport the pallets. (Filing No. 68).
allege Fergin's injury was caused by the collective
Defendants' negligence in (1) failing to inspect the
pallets used to stack the corrugated paper; (2) employing a
damaged pallet to stack the corrugated paper; (3) placing a
“wobbly, unstable stack of corrugated box making
material” on the damaged pallet in the rear of the
trailer and; (4) in failing to “strap or otherwise
secure” the stack of corrugated paper “to keep it
from shifting and toppling.” (Filing No. 64 at p. 3).
Westrock filed crossclaims against Magnum Dedicated and XPO
for indemnification. (Filing No. 68).
the instant motions relate to the Magnum defendants'
responses and objections to Westrock's and XPO's
discovery requests. Generally, the Magnum defendants'
objections are premised on their position that Westrock and
XPO's discovery requests are not relevant because the
information sought relates to the Federal Motor Carrier
Safety Regulations (“FMCSR”), which do not create
a legal duty in this action.
filed its motion to compel Magnum Dedicated to provide
answers to its Requests for Admission Nos. 1, 3, and 4; to
produce documents responsive to Request for Production No.
14; and to supplement its answers to Interrogatory Nos. 6, 9,
10, 11, and 12. (Filing No. 111 at pp. 2-6). XPO seeks an
order compelling the Magnum defendants to produce documents
responsive to its Request for Production Nos. 4, 5, and 6.
(Filing No. 112).
Westrock's Discovery Requests and Magnum Dedicated's
disputed Requests for Admissions ask Magnum Dedicated to,
“Admit that, in February 2013, Magnum Dedicated Inc.
employees were[:]” . . . “not allowed to operate
a commercial motor vehicle unless the employee had confirmed
that the commercial motor vehicle's cargo was properly
distributed and adequately secured” (Request No. 1);
“required to inspect the cargo and devices used to
secure the cargo within the first fifty (50) miles after
beginning trip and cause any adjustments to be made to the
cargo or load securement devices as necessary to ensure that
cargo cannot shift on or within, or fall from the commercial
motor vehicle” (Request No. 3); and “required to
firmly immobilize or secure cargo on or within a vehicle by
structures of adequate strength, dunnage or dunnage bags,
shoring bars, tiedowns, or a combination of these”
(Request No. 4). Magnum Dedicated objected to each request as
not relevant because each request “seeks admission
employees of [Magnum] had a duty to follow a [FMCSR] …
[This section] is not relevant to this action. The [FMCSR]
were not intended to cover or create a duty in regards to
accidents that occur while unloading cargo in a private
loading area[.]” (Filing No. 110-4 at pp. 1-3).
Request for Production No. 14 asks for “Any handbook,
manuals, policies, or other documents which state Magnum
Dedicated's policies and procedures with respect to
inspecting, loading, securing and transporting a
cargo.” Magnum Dedicated objected to the request as not
relevant because the FMCSR “were not intended to cover
or create a duty in regards to accidents that occur while
unloading cargo in a private loading area.” Magnum
Dedicated also objected that the request was unduly
burdensome and could include attorney-client documents.
“Subject to” and “without waiving”
the objections, Magnum Dedicated replied that it knew of no
other documents responsive to the request other than the
FMCSR, which are publically available. (Filing No. 110-5 at
also seeks supplemental answers to the following
interrogatories (Filing No. 110-6):
• Interrogatory No. 6 asks Magnum
Dedicated to identify details surrounding its contact with
the corrugated cardboard, including where Magnum Dedicated
picked it up, what employees were involved in loading and
transporting the corrugated cardboard, and whether Magnum
Dedicated was involved in loading and securing the cardboard.
Magnum Dedicated objected that the interrogatory was vague or
ambiguous, and that it was not relevant because it was
“based upon the contentions Magnum Dedicated had a duty
to load or secure the corrugated cardboard or the [FMCSR] are
relevant to ...