United States District Court, D. Nebraska
CAROL RIBBING, as the personal representative of the Estate of Gregory Ribbing, deceased; Plaintiff,
UNION PACIFIC RAILROAD COMPANY, Defendant.
MEMORANDUM AND ORDER
F. Bataillon Senior United States District Judge.
matter is before the Court on defendant's motion for
summary judgment, Filing No. 15, pursuant to Fed.R.Civ.P. 56.
The Estate of Gregory Ribbing (“the Estate”)
filed a Federal Employer's Liability Act (FELA), 45
U.S.C. §§ 51-60 action which alleges that Gregory
Ribbing died from exposure to toxins while working at Union
Pacific causing him to develop multiple myeloma.
served requests for admissions on plaintiff's counsel on
March 25, 2019. Plaintiff failed to timely respond to these
admissions. Union Pacific moved for summary judgment on July
31, 2019, Filing No. 15, and on August 20, 2019, plaintiff
moved to withdraw or amend the deemed admissions to the
requests for admissions, Filing No. 18. The brief addressed
the issue of failure to respond to admissions.
contends that plaintiff failed to timely respond to requests
for admissions. Thus, the Court should determine that
plaintiff thereby admits that she had a reasonably safe place
to work and that the workplace exposures did not cause or
contribute to decedent's multiple myeloma.
Rule 36, a party may serve on the opposing party “a
written request to admit, for purposes of the pending action
only, the truth of any matters within the scope of Rule
26(b)(1) relating to: (A) facts, the application of law to
fact, or opinions about either; and (B) the genuineness of
any described documents.” Fed.R.Civ.P. 36(a)(1). The
responding party may admit the request, deny it, state that
the party lacks the ability to admit or deny it after a
reasonable investigation, or object to it. Fed.R.Civ.P. 36(a)
(4-5). A request served under Rule 36 “is admitted
unless, within 30 days after being served, the party to whom
the request is directed serves on the requesting party a
written answer or objection addressed to the matter and
signed by the party or its attorney.” Fed.R.Civ.P.
magistrate determined that the request for admissions was
deemed admitted by the Estate. Federal Rule of Civil
Procedure 36(b) states:
Effect of an Admission; Withdrawing or Amending It. A matter
admitted under this rule is conclusively established unless
the court, on motion, permits the admission to be withdrawn
or amended. Subject to Rule 16(e), the court may permit
withdrawal or amendment if it would promote the presentation
of the merits of the action and if the court is not persuaded
that it would prejudice the requesting party in maintaining
or defending the action on the merits. An admission under
this rule is not an admission for any other purpose and
cannot be used against the party in any other proceeding.
Fed. R. Civ. P. 36(b). To make a determination, the
magistrate judge analyzed the reasons for denying the request
to amend each admission. The magistrate concluded that each
motion to amend should be denied on the merits, should be
denied for plaintiff's counsel's failure to provide
reasons for the late and missed filings, and should be denied
for a continued pattern of failure to timely prosecute these
cases. Filing No. 26, entered October 9, 2019. Plaintiff did
not file any objection to or appeal of the memorandum and
judgment is appropriate 'if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law."'
Foster v. BNSF Ry. Co., 866 F.3d 962, 966 (8th
Cir.2017) (quoting Fed.R.Civ.P. 56(a)). "Summary
judgment procedure is properly regarded not as a disfavored
procedural shortcut, but rather as an integral part of the
Federal Rules as a whole, which are designed 'to secure
the just, speedy, and inexpensive determination of every
action."' Celotex Corp. v. Catrett, 477
U.S. 317, 327 (1986) (quoting Fed.R.Civ.P. 1).
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. 20ll) (en
banc) (quoting Celotex, 477 U.S. at 323). If the
movant meets the initial burden, "the nonmovant must
respond by submitting evidentiary materials that set out
'specific facts showing that there is a genuine issue for
trial."' Torgerson, 643 F.3d at 1042
(quoting Celotex, 477 U.S. at 324). "The
nonmovant '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."' Torgerson,
643 F.3d at 1042 (quoting Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).
“The mere existence of a scintilla of evidence in
support of the [nonmovant' s] position will be
insufficient; there must be evidence on which the jury could
reasonably find for the [nonmovant]." Barber v. Cl
Truck Driver Training, LLC, 656 F.3d 782, 791-92 (8th
Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.5. 242, 252 (1986)).
on the above background, pending now before the Court is
defendant's motion for summary judgment. Defendant
contends that because the admissions are exclusively
established, plaintiff can no longer prove that defendant
failed to provide plaintiff with a reasonable safe place to
work and that the occupational exposures did not cause his
cancer. SeeLuick v. Graybar Elec. Co., 473
F.2d 1360, 1361 (8th Cir. 1973); “It is well settled
that a failure to respond to requests for admission is deemed
to be an admission ...