Submitted: December 12, 2017
from United States District Court for the Western District of
Arkansas - Ft. Smith
SMITH, Chief Judge, ARNOLD and KELLY, Circuit Judges.
ARNOLD, Circuit Judge.
Bedford is a truck driver who was unfortunately injured after
he opened the door to a trailer he was hauling and a load of
boxes fell on him. Bedford sued International Paper Company,
or IP, and a John Doe who worked for IP, asserting that Doe
negligently failed to secure the load and that IP negligently
supervised the loading and inspecting of the trailer and was
vicariously responsible for Doe's negligence. When IP
moved for summary judgment, Bedford failed to respond, moving
instead to designate an expert witness out of time or, in the
alternative, to dismiss his complaint without prejudice.
Because Bedford did not respond directly to IP's motion
for summary judgment, the district court deemed that he
had admitted the facts that IP stated, see Local
Rule 56.1(c), granted IP's motion for summary judgment,
and dismissed the claims against it. The district court also
dismissed the claim against Doe because Bedford appeared to
have abandoned that claim-a ruling that Bedford does not
challenge on appeal. Bedford then moved for reconsideration
under Federal Rule of Civil Procedure 59(e), which the
district court denied. We affirm.
an independent duty to ensure that appellate jurisdiction
exists, Chambers v. City of Fordyce, Ark., 508 F.3d
878, 880 (8th Cir. 2007) (per curiam), and, though neither
party called it to our attention, we have detected a possible
jurisdictional glitch that raises a question about the extent
of our power in this appeal. Federal Rule of Appellate
Procedure 3(c)(1)(B) requires a notice of appeal to
"designate the judgment, order, or part thereof being
appealed." Bedford's notice of appeal states that he
appeals "the Order filed on November 30, 2016, . . .
denying Plaintiff's Motion for Reconsideration, Motion to
Vacate Order, and Motion for New Trail [sic]." The
notice of appeal does not refer to the district court's
order of May 31, 2016, granting IP's motion for summary
this apparent oversight gives us pause, we nonetheless
believe that we have jurisdiction to review the order
granting IP's motion for summary judgment and not just
the order denying reconsideration of that order. We have said
when grappling with this kind of situation that an
"appeal from the denial of a Rule 59(e) motion allows
challenge of the underlying ruling that produced the
judgment." See Prince v. Kids Ark Learning
Ctr., LLC, 622 F.3d 992, 994 (8th Cir. 2010) (per
curiam). IP, moreover, has briefed and argued the case
without broaching the issue, suggesting that it will not be
prejudiced if we review the order granting summary judgment.
We therefore turn to that order, which we review de novo.
See Weed v. Jenkins, 873 F.3d 1023, 1028 (8th Cir.
at the outset that Bedford does not challenge the district
court's conclusion that he violated Local Rule 56.1(c) by
failing to respond to IP's motion for summary judgment
and so had admitted the facts that IP stated. He argues
instead that "there is evidence that [IP and Doe]
breached their duty to" him and that IP's statement
of undisputed facts "is incomplete and misleading,
" and so IP is not entitled to summary judgment even if
he is deemed to have admitted those facts.
granting IP summary judgment, the district court noted
correctly, though, that Bedford had made no evidentiary
showing that IP or Doe had breached a duty of care owed to
him, so there was no evidence that anyone committed a
negligent act. Bedford's assertion to the contrary on
appeal comes too late. The district court also held that
Bedford had failed to produce any evidence showing that
negligence in the loading process caused his injuries, and
that he was deemed to have admitted that causes other than
negligence could well have caused the load to fall on him.
must grant a motion for summary judgment if the moving party
shows that there are no genuine disputes of material fact and
that it is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). A principal purpose of the
summary-judgment procedure "is to isolate and dispose of
factually unsupported claims or defenses, " with due
regard being given to the rights of those opposing a claim or
defense to demonstrate in the manner provided by Rule 56,
prior to trial, that a claim or defense has no factual basis.
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 327
(1986). After the parties have had adequate time for
discovery, a movant will be entitled to summary judgment
"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." Id. at 322. The
movant bears the initial responsibility of informing the
district court of the basis for its motion and must identify
the portions of the record that it believes demonstrate the
absence of a genuine dispute of material fact. Torgerson
v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir.
2011) (en banc). The Supreme Court in Celotex said
that the burden on the movant "may be discharged by
'showing'-that is, pointing out to the district
court-that there is an absence of evidence to support the
nonmoving party's case." 477 U.S. at 325. We have
acknowledged that this initial burden on the movant is
"far from stringent" and "regularly discharged
with ease." St. Jude Med., Inc. v. Lifecare
Int'l, Inc., 250 F.3d 587, 596 (8th Cir. 2001). The
moving party can satisfy its burden in either of two ways: it
can produce evidence negating an essential element of the
nonmoving party's case, or it can show that the nonmoving
party does not have enough evidence of an essential element
of its claim to carry its ultimate burden of persuasion at
trial. See Nissan Fire & Marine Ins. Co. v. Fritz
Cos., 210 F.3d 1099, 1106 (9th Cir. 2000). In other
words, if the nonmoving party must prove X to
prevail, the moving party at summary judgment can either
produce evidence that X is not so or point out that
the nonmoving party lacks the evidence to prove X.
the moving party satisfies this initial burden, the nonmoving
party "must respond by submitting evidentiary
materials" of specific facts showing the presence of a
genuine issue for trial. Torgerson, 643 F.3d at
1042. The nonmoving party must do more than raise some
metaphysical doubt about the material facts, id.,
and cannot rest on mere denials or allegations. Gibson v.
Am. Greetings Corp., 670 F.3d 844, 853 (8th Cir. 2012).
The nonmoving party must instead present enough evidence that
a jury could reasonably find in his favor. Id.
substantive law applies in this diversity case, see Torti
v. Hoag, 868 F.3d 666, 671 (8th Cir. 2017), and Arkansas
tort law requires that Bedford prove that IP owed him a duty,
that it breached that duty, and that the breach proximately
caused his injuries. See Yanmar Co. v. Slater, 386
S.W.3d 439, 449 (Ark. 2012). In its motion for summary
judgment, IP pointed out to the district court that Bedford
was "unable to produce evidence that demonstrates that
[IP] was negligent" because he could not show "that
the trailer was improperly loaded" or "that any
negligence of [IP] was the proximate cause of his
injuries." IP then supported its assertions by citing
materials in the record like the deposition transcripts of
Bedford, Doe, and others, pointing out that none of those
materials established that anyone was negligent and just as
likely showed that the load shifted during transit for other
reasons. We think that this was manifestly sufficient for IP
to satisfy its "far from stringent"
contends that we should presume that Doe was negligent when
loading the trailer, and if we do so, then IP cannot show
that it is entitled to summary judgment. But this squarely
contradicts Arkansas negligence law. The Supreme Court of
Arkansas has stressed that "negligence is never assumed,
" but must instead be proven by the party asserting it.
Id. It has also emphasized that plaintiffs, in
proving negligence, may not rely on conjecture or
speculation, and the mere fact that an accident occurred does
not give rise to an inference of negligence. Id.
These principles are certainly relevant here since Bedford
has admitted that there are potential reasons besides
negligence for a load to shift during transit. To prevail,
moreover, Bedford must produce evidence that would tend to
eliminate other causes of his injuries so the jury is not
left to speculate about their cause. See St. Paul Fire
& Marine Ins. Co. v. Brady, 891 S.W.2d 351, 353-54
(Ark. 1995). In short, "[n]egligence is not imposed in
the absence of proof." Mangrum v. Pigue, 198
S.W.3d 496, 503 (Ark. 2004). We therefore reject
Bedford's invitation to assume that IP was negligent, and
we agree with the district court that IP was entitled to
summary judgment. To the extent that Bedford ...