United States District Court, D. Nebraska
AMENDED  MEMORANDUM AND ORDER
Smith Camp Chief United States District Judge
matter is before the Court on the Motion for Summary
Judgment, ECF No. 122, filed by Defendant Westrock Company,
and the Motion to Deny or Defer Summary Judgment (Rule 56(d)
Motion), ECF No. 135, filed by Plaintiff Michael Fergin. For
the reasons stated below, the Rule 56(d) Motion will be
denied and the Motion for Summary Judgment will be granted.
following facts are those stated in the parties' briefs,
supported by pinpoint citations to evidence in the record,
and admitted, or not properly resisted, by the opposing party
as required by NECivR 56.1 and Federal Rule of Civil Procedure 56.
February of 2013, Westrock, then known as RockTenn, agreed to
provide corrugated cardboard material to Fergin's
employer, Becton Dickinson. Westrock Supp. Brief ¶¶
5, 7, & 13, ECF No. 123, Page ID 654. Sometime in 2013,
Becton Dickinson provided Westrock pallets on which to stack
the corrugated cardboard for transport to Becton Dickinson.
Id. ¶ 6. Westrock contracted with Defendant
XPO, then known as the Jacobson Warehouse Co., to store the
pallets and load them onto semitrailers for transport.
Westrock contracted with Magnum LTL, Inc.,  to ship the
pallets. On February 19, 2013, XPO received the load of
corrugated cardboard from Westrock. Id., ¶ 8.
Magnum delivered the load to Becton Dickinson. Id.,
February 19, 2016, Fergin began unloading the pallets of
corrugated cardboard from the semitrailer delivered by
Magnum. Id., ¶ 13. Fergin opened the right
trailer door and started to “walk it back to the left
side of the trailer” when a stack of cardboard fell on
him, knocking him to the ground and fracturing his left
shoulder. Id., ¶ 14, Page ID 655.
Second Amended Complaint, ECF No. 64, Fergin alleged that his
injury was caused by Defendants' “joint and
concurring negligence.” Id., Page ID 316.
Specifically, Fergin alleged that Defendants failed to
inspect the pallets used to stack the cardboard material;
that Defendants stacked the material on a damaged pallet,
which they knew or should have known made the stack unstable
and likely to fall; that Defendants placed the unstable stack
in the left rear corner of the trailer where it would fall
out of the trailer; and that Defendants failed to strap or
otherwise secure the stack to keep it from shifting and
toppling before unloading. Id., ECF No. 317.
judgment is appropriate when the evidence, viewed in the
light most favorable to the nonmoving party, presents no
genuine issue of material fact and the moving party is
entitled to judgment as a matter of law.” Garrison
v. ConAgra Foods Packaged Foods, LLC, 833 F.3d 881, 884
(8th Cir. 2016) (citing Fed.R.Civ.P. 56(c)). “Summary
judgment is not disfavored and is designed for every
action.” Briscoe v. Cty. of St. Louis, 690
F.3d 1004, 1011 n.2 (8th Cir. 2012) (quoting Torgerson v.
City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011)
(en banc)). In reviewing a motion for summary judgment, the
Court will view “the record in the light most favorable
to the nonmoving party . . . drawing all reasonable
inferences in that party's favor.” Whitney v.
Guys, Inc., 826 F.3d 1074, 1076 (8th Cir. 2016) (citing
Hitt v. Harsco Corp., 356 F.3d 920, 923-24 (8th Cir.
2004)). Where the nonmoving party will bear the burden of
proof at trial on a dispositive issue, “Rule 56(e)
permits a proper summary judgment motion to be opposed by any
of the kinds of evidentiary materials listed in Rule 56(c),
except the mere pleadings themselves.” Se. Mo.
Hosp. v. C.R. Bard, Inc., 642 F.3d 608, 618 (8th Cir.
2011) (quoting Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986)). The moving party need not produce evidence
showing “the absence of a genuine issue of material
fact.” Johnson v. Wheeling Mach. Prods., 779
F.3d 514, 517 (8th Cir. 2015) (quoting Celotex, 477
U.S. at 325). Instead, “the burden on the moving party
may be discharged by ‘showing' . . . that there is
an absence of evidence to support the nonmoving party's
case.” St. Jude Med., Inc. v. Lifecare Int'l,
Inc., 250 F.3d 587, 596 (8th Cir. 2001) (quoting
Celotex, 477 U.S. at 325).
response to the moving party's showing, the nonmoving
party's burden is to produce “specific facts
sufficient to raise a genuine issue for trial.”
Haggenmiller v. ABM Parking Servs., Inc., 837 F.3d
879, 884 (8th Cir. 2016) (quoting Gibson v. Am. Greetings
Corp., 670 F.3d 844, 853 (8th Cir. 2012)). The nonmoving
party “must do more than simply show that there is some
metaphysical doubt as to the material facts, and must come
forward with specific facts showing that there is a genuine
issue for trial.” Wagner v. Gallup, Inc., 788
F.3d 877, 882 (8th Cir. 2015) (quoting Torgerson,
643 F.3d at 1042). “[T]here must be more than the mere
existence of some alleged factual dispute” between the
parties in order to overcome summary judgment. Dick v.
Dickinson State Univ., 826 F.3d 1054, 1061 (8th Cir.
2016) (quoting Vacca v. Viacom Broad. of Mo., Inc.,
875 F.2d 1337, 1339 (8th Cir. 1989)).
other words, in deciding “a 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.” Wagner, 788 F.3d at 882 (quoting
Torgerson, 643 F.3d at 1042). Otherwise, where the
Court finds that “the record taken as a whole could not
lead a rational trier of fact to find for the non-moving
party, ” there is no “genuine issue of material
fact” for trial and summary judgment is appropriate.
Whitney, 826 F.3d at 1076 (quoting Grage v. N.
States Power Co.-Minn., 813 F.3d 1051, 1052 (8th Cir.
Rule 56(d) Motion
moves the Court to deny or defer ruling on the Motion for
Summary Judgment, to allow for additional discovery under