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Fergin v. Westrock Company

United States District Court, D. Nebraska

December 1, 2017




         This 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.

         Neither 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.”).

         “[A] 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.


         Plaintiffs, Michael Fergin and Ace American Insurance Co.[1], 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, [2] 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).

         Plaintiffs 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).

         Both of 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.

         Westrock 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).

         1. Westrock's Discovery Requests and Magnum Dedicated's Responses

         Westrock'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).

         Westrock's 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 p. 3).

         Westrock 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 ...

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