United States District Court, D. Nebraska
WESLEY A. CLEAVER, Plaintiff,
UNION PACIFIC RAILROAD COMPANY, Defendant.
MEMORANDUM AND ORDER
R. Zwart United States Magistrate Judge.
31, 2019, the defendant, Union Pacific Railroad Company
(“Union Pacific”) moved for summary judgment on
all claims filed by the plaintiff, Wesley A. Cleaver
(“Cleaver”). (Filing No. 15). In support
of its motion, Union Pacific relies on Cleaver's deemed
admissions to requests for admissions served by Union Pacific
and argues that based on those admissions, Union Pacific is
entitled to judgment as a matter of law. (Filing No.
16). Cleaver filed no evidence opposing the motion for
summary judgment. Instead, Cleaver objects and moves to
withdraw the deemed admissions, (Filing No. 18).
Cleaver seeks to replace those deemed admissions with a
proposed response denying each request. (Filing No.
18-1). Cleaver has offered no evidence in support of the
denials within his proposed amended response.
reasons stated below, Cleaver's motion (Filing No.
18), will be denied.
FELA action was filed in this court on October 26, 2018.
(Filing No. 1). Cleaver was a trackman and heavy
equipment operator for Union Pacific. The complaint alleges
exposure to toxins while working for Union Pacific caused or
contributed to Cleaver's development of Non-Hodgkin's
complaint was served on December 5, 2018 (Filing No.
6); Union Pacific's answer was filed on January 31,
2019. (Filing No. 7). The court entered an initial
scheduling order on February 6, 2019. Under that order,
Cleaver's mandatory disclosures were due on March 18,
2019. (Filing No. 10).
Pacific served requests for admissions on Plaintiff's
counsel on March 19, 2019. (Filing No. 11;
Filing No. 17, at CM/ECF p. 5). The requests asked
Cleaver to admit:
Cleaver's exposure to:
• diesel fuel (Request No. 1),
• diesel exhaust (Request No. 2),
• diesel fumes (Request No. 3),
• benzene (Request No. 4),
• herbicides (Request No. 5),
• creosote (Request No. 6), and/or
• asbestos fibers (Request No. 7), during his employment
with Union Pacific did not cause or contribute to his
• provided Cleaver with a reasonably safe place in which
to work as required by the Federal Employers Liability Act,
(Request No. 8);
• acted reasonably to minimize or eliminate
Cleaver's exposure to toxic materials and carcinogens,
(Request No. 9);
• took reasonable steps to warn Cleaver of the risks of
exposure to potential carcinogens, (Request No. 10);
• made reasonable efforts to monitor the levels of
exposure of Cleaver to potential carcinogens, ...