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. 201, filed by Defendant XPO. For the
reasons stated below, the Motion 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.
January 4, 2010, Magnum Dedicated, Inc. (Magnum), entered
into an agreement, ECF No. 147-2, with Westrock Company
(Westrock) to transport corrugated cardboard manufactured by
Westrock to Becton Dickinson, Plaintiff Michael Fergin's
employer. Pursuant to a separate agreement, ECF No. 201-2,
Westrock leased storage space from XPO in XPO's facility
in Sioux City, Iowa, and XPO agreed to provide Westrock
loading services at that facility.
February 18, 2013, XPO loaded a semitrailer with pallets of
stacked, Westrock-manufactured cardboard. That same day,
Magnum picked up the loaded semitrailer and delivered it to
Becton Dickinson's loading dock. The transportation was
performed pursuant to a Bill of Lading, No. 43186609213. On
February 19, 2013, Fergin opened one of the trailer doors to
begin unloading it when a stack of cardboard fell on him,
knocking him to the ground. Fergin fractured his shoulder.
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's Second Amended
Complaint alleged Westrock, Magnum, Magnum LTL, Inc., and XPO
“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.
As the Court noted in its previous Memorandum and Order,
Fergin did not specifically caption or enumerate any causes
of action but alleged that “[a]s a result of
Defendants' negligence he incurred medical expenses, lost
wages, and permanent disability.” Mem. and Order, ECF
No. 188, Page ID 1300 (quoting Second Amended Complaint, ECF
No. 64, Page ID 317-18). Therefore, the Court construed
Fergin's Second Amended Complaint as stating a single
claim of negligence under Nebraska law. Mem. and Order, ECF
No. 188, Page ID 1300.
March 12, 2018, the Court granted Westrock's motion for
summary judgment and dismissed it from this action because
Fergin failed to provide sufficient evidence upon which a
reasonable jury could conclude that Westrock was negligent.
Mem. and Order, ECF No. 154. On June 15, 2018, the Court also
granted Magnum and Magnum LTL, Inc.'s, motion for summary
judgment and dismissed them from this action because the
Carmack Amendment, 49 U.S.C. § 14706, preempted
Fergin's state-law claim against them. Mem. and Order,
ECF No. 188. Thus, the only remaining defendant is XPO.
judgment is appropriate when, construing the evidence most
favorably to the nonmoving party, there is no genuine issue
of material fact and the moving party is entitled to judgment
as a matter of law.” Crozier v. Wint, 736 F.3d
1134, 1136 (8th Cir. 2013) (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, 1042
(8th Cir. 2011) (en banc) cert. denied, 132 S.Ct.
513 (2011)) (internal quotation marks omitted). In reviewing
a motion for summary judgment, the Court will view “all
facts and mak[e] all reasonable inferences favorable to the
nonmovant.” Gen. Mills Operations, LLC v. Five Star
Custom Foods, Ltd., 703 F.3d 1104, 1107 (8th Cir. 2013).
“[W]here 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.” Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986). The moving
party need not negate the nonmoving party's claims by
showing “the absence of a genuine issue of material
fact.” Id. 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.” Id.
response to the movant's showing, the nonmoving
party's burden is to produce specific facts demonstrating
“‘a genuine issue of material fact' such that
[its] claim should proceed to trial.” Nitro
Distrib., Inc. v. Alticor, Inc., 565 F.3d 417, 422 (8th
Cir. 2009) (quoting Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986)). 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.” Briscoe, 690 F.3d at 1011
(quoting Torgerson, 643 F.3d at 1042) (internal
quotation marks omitted). “‘[T]he mere existence
of some alleged factual dispute between the
parties'” will not defeat an otherwise properly
supported motion for summary judgment. Quinn v. St. Louis
Cty., 653 F.3d 745, 751 (8th Cir. 2011) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
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.” Guimaraes v. SuperValu, Inc.,
674 F.3d 962, 972 (8th Cir. 2012) (quoting
Torgerson, 643 F.3d at 1042) (internal quotation
marks omitted). 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 for trial” and summary
judgment is appropriate. Torgerson, 643 F.3d at 1042
(quoting Ricci v. DeStefano, 557 U.S. 557, 586
(2009)) (internal quotation marks omitted).
on the Court's previous ruling that the Carmack Amendment
preempts Fergin's negligence claim against Magnum and
Magnum LTL, Inc., Mem. and Order, ECF No. 188, XPO argues the
Carmack Amendment also preempts Fergin's negligence claim
against it. In its previous Memorandum and Order, the Court
applied the conduct-basedapproach to its preemption analysis
under the Carmack Amendment and concluded that Fergin's
negligence claim against Magnum and Magnum LTL, Inc., was
preempted. ECF No. 188, Page ID 1304-06. Fergin argues the
Carmack Amendment does not preempt his negligence ...