United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Smith Camp Chief United States District Judge
matter is before the Court on the Motion for Summary
Judgment, ECF No. 146, filed by Defendants Magnum LTL, Inc.,
and Magnum Dedicated, Inc., (collectively, Magnum
Defendants); the Motion to Defer Ruling on the Motion for
Summary Judgment, ECF No. 150, filed by Defendant XPO; the
Motion to Amend, ECF No. 171, filed by Magnum Defendants; and
the Statement of Objection, ECF No. 173, filed by Magnum
Defendants. For the reasons stated below, the motion for
summary judgment will be granted, the motion to defer ruling
will be denied, the motion to amend will be granted, and the
statement of objections will be overruled.
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
January 4, 2010, Magnum Dedicated, Inc., entered into an
agreement (Transportation Agreement) with Westrock
Company-formerly known as RockTenn- whereby Magnum Dedicated
was to transport a load of corrugated cardboard to Becton
Dickinson. Under Section 3(a) of the Transportation
Agreement, Magnum Dedicated agreed “to accept and
transport, pursuant to the terms of this Agreement, all
Shipments within the scope of Services . . . .” ECF NO.
147-2, Page ID 871. Defendant XPO- formerly known as Jacobson
Warehouse-loaded the pallets of stacked cardboard,
manufactured by Westrock, from XPO's warehouse facility
in Sioux City, Iowa, into a semi-trailer that was ultimately
delivered by Magnum Defendants to Becton Dickinson's dock
in Columbus, Nebraska, on February 18, 2013. The
transportation was performed pursuant to a Bill of Lading,
February 19, 2016, Plaintiff Michael Fergin, an employee of
Becton Dickinson, began unloading the pallets of cardboard
from the semitrailer delivered by Magnum. ECF No. 123, Page
ID 654. 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., Page
filed this action in the District Court of Platte County,
Nebraska, in August of 2015, and Westrock removed to this
Court on January 19, 2016. Fergin filed his Second Amended
Complaint, ECF No. 64, on February 27, 2017. In the Second
Amended Complaint, Fergin alleged, among other things, that
defendants “failed to inspect the pallets used to stack
the [cardboard], ” “employed a damaged pallet on
which to stack and ship [the cardboard], ”
“failed to strap or otherwise secure the stack of
[cardboard] to keep it from shifting and toppling before it
could be properly unloaded.” ECF No. 64, Page ID 317.
Fergin alleged that “[a]s a result of Defendants'
negligence”he incurred medical expenses, lost wages,
and permanent disability. Id., Page ID 317- 18.
Motion for Summary Judgment
Standard of Review
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.