Berman v. Knife River Corporation et al

Filing 154

ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT by Judge Paul S. Grewal denying 124 (psglc2, COURT STAFF) (Filed on 10/10/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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SAN JOSE DIVISION

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JOHN BERMAN,
Plaintiff,

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v.
KNIFE RIVER CORPORATION et al,

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Defendants.

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ORDER DENYING PLAINTIFF’S
MOTION FOR SUMMARY
JUDGMENT
(Re: Docket No. 124)

gross negligence claims. 1 Defendant Knife River Corporation (“Knife River”) opposes. 2

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Case No. 5:11-cv-03698-PSG

Plaintiff John Berman (“Berman”) moves for summary judgment on his negligence and

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The parties are familiar with the factual and procedural background of this case, and in the
interest of expediency, the court will not retrace that background here.

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The legal standard concerning motions for summary judgment is well-known. Pursuant to
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Fed. R. Civ. P. 56(a), “the court shall grant summary judgment if the movant shows that there is no

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genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 3

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Rule 56(c) requires the moving party to support its assertion by “citing to particular parts of

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materials in the record” or “showing the materials cited do not establish the presence of a genuine

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See Docket No. 124.

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See Docket No. 133.

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Fed. R. Civ. P. 56(a).

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Case No.: 5:11-cv-03698-PSG
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

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dispute” or “that an adverse party cannot produce admissible evidence to support the fact.” 4 A

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party’s failure to comply with Rule 56(c) is governed by Fed. R. Civ. P. 56(e). 5

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Berman’s request does not meet the standards of Rule 56 for at least two independent
reasons. First, Berman’s motion and supporting evidence do not conclusively establish that no
genuine dispute of material fact exists as to the issues of negligence and gross negligence. Berman

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offers the declaration of paving contractor Skip Brown regarding the feasibility of a “K-rail” at the

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site of the incident at the heart of this case. 6 But Knife River responds with its own declaration

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from traffic engineer Richard Ryan, who disputes that any K-rail was even viable, let alone

United States District Court
For the Northern District of California

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necessary, under the terms of Knife River’s contract with CalTrans. 7 This creates a classic and

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genuine issue of material fact that must be resolved by the jury, not the court.

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Second, both the court and Knife River granted Berman repeated extensions to comply with
discovery requests in this case. 8 However, even with extra time, Berman did not produce the

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documents in a timely fashion. On this record, summary judgment in favor of Berman is
particularly unwarranted.
Berman’s motion for summary judgment regarding Knife River’s alleged negligence and

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gross negligence is DENIED.

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See Fed. R. Civ. P. 56(c).

See Fed. R. Civ. P. 56(e). (“If a party fails to properly support an assertion of fact or fails to
properly address another party’s assertion of fact as required by Rule 56(c), the court may: (1) give
an opportunity to properly support or address the fact; (2) consider the fact undisputed for purposes
of the motion; (3) grant summary judgment if the motion and supporting materials – including the
facts considered undisputed – show that the movant is entitled to it; or (4) issue any other
appropriate order.”).

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See Docket No. 124.

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See Docket No. 133-12.

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See Docket Nos. 138 and 143.

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Case No.: 5:11-cv-03698-PSG
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT