United States District Court, D. Nebraska
DANIEL H. LUEDERS AND ROSENS, INC.,  Plaintiffs,
AARON ARP, et al., Defendants.
MEMORANDUM AND ORDER
M. Gerrard United States District Judge
plaintiff, Daniel Lueders, was injured when his pickup truck
was rear-ended by a National Guard tractor-trailer, and he
has sued the driver, the National Guard, and the United
States for damages arising from the driver's alleged
negligence. The defendants move for dismissal or summary
judgment, arguing that Lueders is estopped from claiming that
his injuries were caused by that accident because he
testified, in a separate case, that his injuries were
actually caused by a previous accident.
agrees that the driver and the National Guard should be
dismissed, because the only proper defendant is the United
States. So, the motion to dismiss will be granted to that
extent. But the estoppel doctrines relied upon by the United
States do not apply here to bar Lueders' claim, so the
balance of the defendants' motion will be denied.
was in two different traffic accidents, both of which are
relevant here: a March 4, 2011 collision with a truck
belonging to Leavitts Freight Service (the "Leavitts
accident"), and the July 15, 2012 collision with the
National Guard truck (the "National Guard
accident"). Filing 15 at 2-3.He lodged a tort
claim with the National Guard on March 3, 2014. Filing
13-2 at 4-5. And he sued Leavitts and Leavitts'
driver in state court on April 21, 2014, claiming personal
injuries resulting from the Leavitts accident, including a
significant injury to his right shoulder. Filing 13-1 at
was deposed in the Leavitts case. Filing 15 at 3. He
testified that he did not believe his shoulder injury had
been exacerbated by the National Guard accident. Filing
13-2 at 20-22. And, he said, if he filed suit based on
the National Guard accident, he did not intend to claim any
additional injury to his shoulder. Filing 13-2 at
20. Lueders eventually settled the Leavitts litigation.
Filing 13-2 at 2. The parties filed a joint
stipulation for dismissal, filing 13-1 at 7, and the
state court dismissed Lueders' claims with prejudice,
filing 13-1 at 10.
meantime, Lueders had lodged an amended tort claim with the
National Guard, claiming an additional shoulder injury.
Filing 13-2 at 41-42. This litigation followed,
pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C.
§§ 1346 & 2671 et seq. Filing 1.
STANDARD OF REVIEW
defendants move to dismiss pursuant to Fed. R. Civ. P.
12(b)(6) or, in the alternative, for summary judgment
pursuant to Fed. R. Civ. P. 56. See filing
12. If, on a motion under Rule 12(b)(6), matters outside
the pleadings are presented to and not excluded by the court,
the motion must be treated as one for summary judgment under
Rule 56, and all parties must be given a reasonable
opportunity to present all the material that is pertinent to
the motion. Rule 12(d).
motion to dismiss is converted into a motion for summary
judgment, a party against whom this procedure is used is
normally entitled to notice that conversion is occurring.
Barron ex rel. D.B. v. S. Dakota Bd. of Regents, 655
F.3d 787, 791 (8th Cir. 2011). But where the movant
designates its motion to dismiss alternatively as a motion
for summary judgment, and the nonmovant submits materials
outside the pleadings, a district court is not required to
give formal notice that it will treat a motion as one for
summary judgment. Hearing v. Minnesota Life Ins.
Co., 793 F.3d 888, 893 (8th Cir. 2015). And that's
what happened here: the defendants have moved for dismissal
or summary judgment, submitting evidence in support of their
motion, and Lueders has both addressed the summary judgment
standard and presented evidence in opposition to the motion.
See filing 17 at 8-18. Under such circumstances,
treating the motion as one for summary judgment is
appropriate. See George v. City of St.
Louis, 26 F.3d 55, 57 (8th Cir. 1994).
judgment is proper if the movant shows that there is no
genuine dispute as to any material fact and that the movant
is entitled to judgment as a matter of law. See Rule
56(a). The movant bears the initial responsibility of
informing the Court of the basis for the motion, and must
identify those portions of the record which the movant
believes demonstrate the absence of a genuine issue of
material fact. Torgerson v. City of Rochester, 643
F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the movant does
so, the nonmovant must respond by submitting evidentiary
materials that set out specific facts showing that there is a
genuine issue for trial. Id.
motion for summary judgment, facts must be viewed in the
light most favorable to the nonmoving party only if there is
a genuine dispute as to those facts. Id. Credibility
determinations, the weighing of the evidence, and the drawing
of legitimate inferences from the evidence are jury
functions, not those of a judge. Id. But the
nonmovant must do more than simply show that there is some
metaphysical doubt as to the material facts. Id. In
order to show that disputed facts are material, the party
opposing summary judgment must cite to the relevant
substantive law in identifying facts that might affect the
outcome of the suit. Quinn v. St. Louis County, 653
F.3d 745, 751 (8th Cir. 2011). The mere existence of a
scintilla of evidence in support of the nonmovant's
position will be insufficient; there must be evidence on
which the jury could conceivably find for the nonmovant.
Barber v. C1 Truck Driver Training, LLC, 656 F.3d
782, 791-92 (8th Cir. 2011). Where the record taken as a
whole could not lead a rational trier of fact to find for the
nonmoving party, there is no genuine issue for trial.
Torgerson, 643 F.3d at 1042.
primary issue presented by the defendants' motion is
whether Lueders is estopped from asserting his claim. But