United States District Court, D. Nebraska
BRIAN K. LYNCH, Plaintiff,
UNION PACIFIC RAILROAD COMPANY, a Delaware corporation; Defendant,
HARSCO CORPORATION; Third Party Defendant.
MEMORANDUM AND ORDER
F. BATAILLO, N SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court on plaintiff's motion for
partial summary judgment pursuant to Fed.R.Civ.P. 56. Filing
No. 50. Plaintiff contends that the Third- Party Defendant
Harsco Corp., was, at the time of plaintiff's injury, an
agent of defendant. This lawsuit was brought pursuant to the
Federal Employer's Liability Act, 45 U.S.C.
§§51-60, et seq.
was employed as a “pad layer” on a Harsco Rail
Renewal System (RRR) machine on Union Pacific Railroad Co.
Steel Gang 8501 near Tehachapai, California. While working, a
rail jerked up and struck plaintiff's hand, causing
injuries to his hand and wrist. Filing No. 1. Defendant
denies any negligence on its part. Thereafter, defendant
filed a third-party complaint against Harsco Corporation.
Filing No. 24. Defendant alleges that Harsco provides
railroad track maintenance equipment and services to the
railroads, including the equipment at issue in this lawsuit.
Defendant alleges that Harsco is negligent and states it is
entitled to indemnification and contribution from Harsco for
any judgment or recovery by plaintiff against it. Harsco
denied any and all liability.
judgment is appropriate when, viewing the facts and
inferences in the light most favorable to the nonmoving
party, the “materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those
made for purposes of the motion only), admissions,
interrogatory answers, or other materials . . . show that
the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” Fed.R.Civ.P.
56(c). The plain language of Rule 56(c) mandates the entry of
summary judgment, after adequate time for discovery and upon
motion, 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. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
movant ‘bears the initial responsibility of informing
the district court of the basis for its motion and must
identify ‘those portions of [the record] . . . which it
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) (quoting Celotex, 477 U.S. at 323). 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. (quoting Celotex,
477 U.S. at 324).
genuine dispute of material facts exists when “factual
issues . . . may reasonably be resolved in favor of either
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250 (1986). If “reasonable minds could differ
as to the import of the evidence, ” summary judgment
should not be granted. Id. at 251. In the summary
judgment context, the Court views the facts and draws all
reasonable inferences in favor of the nonmoving party.
Oglesby v. Lesan, 929 F.3d 526, 532 (8th Cir. 2019).
“Credibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge.”
Torgerson, 643 F.3d at 1042; see
Anderson, 477 U.S. at 255.
motion for summary judgment, plaintiff contends that Harsco
is an agent of Union Pacific. In Sinkler v. Missouri
Pacific Railroad, 356 U.S. 326 (1958), the United States
Supreme Court held that “[w]hen a railroad
employee's injury is caused in whole or in part by the
fault of others performing, under a contract, operational
activities of his employer, such others are
‘agents' of the employer within the meaning of
§ 1 of Federal Employers' Liability Act.'
Defendant asks the Court “to hold as a matter of law
that the replacement of pads on concrete ties being performed
by Harsco's Rail Recovery System machine was an
operational activity of Defendant Union Pacific
Railroad.” Filing No. 51 at 10. Both Harsco and
defendant, on the other hand, asks this Court to find that
Harsco is an independent contractor under an Agreement
between the parties. Filing No. 52-2. Defendant argues that
only limited discovery has been conducted. Defendant Contends
that Sinkler requires that for one to be an agent,
the party must (1) have a contractual agreement with the
railroad; and (2) perform operational activities of the
railroad. Defendant contends that there are material facts in
dispute as to the relationship of the defendant and Harsco.
Those facts in dispute include whether Harsco was performing
the “operational activities” of the defendant.
Court agrees with the defendant. It is too early in this case
to determine the relationship between Harsco and Union
Pacific and to decide whether Harsco is an agent or an
independent contractor. The Court finds that more time is
needed to fully develop this record. There are questions of
material fact still being developed, and depositions have ...