Maysey v. Henkel Corporation et al

Filing 200

MEMORANDUM OPINION AND ORDER by Chief Judge Greg N. Stivers on 10/17/2022 denying 194 Motion to Alter Judgment. This matter is stayed pending appeal. cc: Counsel(JWM)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1:17-CV-00108-GNS
NATHANIEL EDWARD MAYSEY

PLAINTIFF

v.
NEMAK USA INC.

DEFENDANT
MEMORANDUM OPINION AND ORDER

This matter is before the Court on Plaintiff’s Motion to Alter and Amend the Judgment
filed by (DN 194). The motion is ripe for adjudication.
I.

STATEMENT OF FACTS AND CLAIMS

Plaintiff Nathaniel Edward Maysey (“Maysey”) was injured in 2016 while working for
Magna-Tech Manufacturing (“Magna-Tech”) at a plant in Glasgow, Kentucky, owned by Nemak.1
(See Troyer Dep. 100:6-12, Nov. 30, 2017, DN 173-2). Nemak casts aluminum automobile
components. (Second Am. Compl. ¶ 6, DN 93). Henkel is the parent corporation of Magna-Tech,
which operated “impregnation machines” within the Nemak facility pursuant to a Service
Agreement between Nemak and Magna-Tech. (Second Am. Compl. ¶¶ 10-11(A); Def.’s Mot.
Summ. J. Ex. 1, DN 134-2). Maysey lost his arm while operating a centrifuge on Line 46, which
was part of the impregnation process, as the result of the deactivation of a safety device on the
machine. (Morley Dep. 26:3-14, 31:16-21, Oct. 10, 2017, DN 170-15). The safety lid for the

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Maysey worked for Magna-Tech through a service agency, Express Services, Inc. (“Express”).
(Second Am. Compl. ¶ 3, DN 93). Third-party claims against Magna-Tech and Express were
dismissed due to the exclusive remedies provision of the Kentucky Worker’s Compensation Act.
(Order, DN 124).

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impregnation machine was bypassed and the machine was allowed to operate with the lid up, rather
than down. (See Second Am. Compl. ¶ 11(C)(4)). Maysey filed suit against Henkel, as the parent
of Magna-Tech, and Nemak USA, as owner of the plant where Maysey was injured. (See generally
Second Am. Compl.). The Court denied Defendant Nemak’s and granted Defendant Henkel’s
motions for summary judgment. (Mem. Op. & Order 20, DN 191). Maysey then moved to alter
the judgment in favor of Henkel. (Pl.’s Mot. Alter & Amend, DN 194).
II.

JURISDICTION

This Court has subject-matter jurisdiction of this matter based upon diversity jurisdiction.
See 28 U.S.C. § 1332(a)(1). Venue is proper as the nucleus of events occurred in Glasgow,
Kentucky.
III.
A.

DISCUSSION

Motion to Alter or Amend Judgment

Under Fed. R. Civ. P. 59(e), “[a] district court may alter or amend its judgment based on
‘(1) a clear error of law; (2) newly discovered evidence; (3) an intervening change in controlling
law; or (4) a need to prevent manifest injustice.’” Brumley v. United Parcel Serv., Inc., 909 F.3d
834, 841 (6th Cir. 2018) (citation omitted). “A Rule 59 motion, however, may not be used to
relitigate old matters, or to raise arguments or present evidence that could have been raised prior
to the entry of judgment.” Id. (internal quotation marks omitted) (citation omitted).
Maysey’s motion alleges no clear error of law, newly discovered evidence, intervening
change in law, nor the potential for manifest injustice. Effectively, the motion merely undertakes
to rehash the arguments made before the Court in deciding the motion for summary judgment.
(See generally Pl.’s Mem. Supp. Mot. Alter & Amend, DN 194-1). Maysey states that under the
Restatement (Second) of Torts § 324A, if a party voluntarily undertakes a duty to provide services

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to another, he is liable for any physical harm stemming from the neglect of said duty. (Pl.’s Mem.
Supp. Mot. Alter & Amend 8). The Court’s Order addressed the Restatement (Second) of Torts §
324A and identified it as a governing principle, which Maysey failed to do in his initial motion for
summary judgment and responses. (Mem. Op. & Order 5-6). The Court’s Order found that Henkel
had not undertaken a duty to provide safety services to Magna-Tech’s employees within the
meaning of Section 324A. (Mem. Op. & Order 11). To support his assertion that Henkel owed
such a duty, Maysey cites to Boggs v. Blue Diamond Coal Co., 590 F.2d 655 (6th Cir. 1979)
contending that Henkel had “provided management, engineering and safety services for MagnaTech.” (Pl.’s Mem. Supp. Mot. Alter & Amend 7). The Court addressed Boggs at numerous points
throughout its Order, holding that Boggs did not support Maysey’s contention that Henkel assumed
safety management for its subsidiary, Magna-Tech. (See, e.g., Mem. Op. & Order 3-5, 7, 11).
Maysey does not identify any caselaw that has been published in the interim that would stand in
opposition to the Court’s interpretation of Boggs.
Furthermore, the decisions Maysey does cite to address whether Henkel assumed a duty to
ensure the safety of Magna-Tech’s employees were already thoroughly addressed by the Court’s
Order. For example, Maysey cites Gaines v. Excel Industries, Inc., 667 F. Supp. 569, 574 (M.D.
Tenn. 1987), for the proposition that summary judgment should be denied where the parent
performed safety inspections of the subsidiary worksites. (Pl.’s Mem. Supp. Mot. Alter & Amend
8-9). The Court’s Order addressed Gaines, stating that summary judgment in that case was denied
because “questions of fact remained as to whether the parent company undertook the safety
inspections, audits, and reviews primarily for its own benefit or for the benefit of the subsidiary or
the subsidiary’s employees.” (Mem. Op. & Order 6).

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Maysey also addresses Hinkle v. Delavan Industries, Inc., 24 F. Supp. 2d 819, 821 (W.D.
Tenn. 1998), which was analyzed in the Court’s Order. (Pl.’s Mem. Supp. Mot. Alter & Amend
9-10; Mem. Op. & Order. 4, 6). Maysey states that in contrast to the parent and subsidiary
relationship in Gaines, the parent in Hinkle was materially different from Magna-Tech and
Henkel’s relationship because the parent in Hinkle maintained an interest in the safety of its
subsidiary as a way to reduce worker’s compensation costs. (Pl.’s Mem. Supp. Mot. Alter &
Amend 9-10). Henkel conducted one site visit before it purchased Magna-Tech as a subsidiary,
undermining allegations of responsibility to ensure the safety of a premises not yet owned by
Henkel and conducted a second site visit to “get a general impression” and “[t]o verify and scope
the due diligence items for the business so they could scope a budget for remediation.” (Sharron
Dep. 76:19-22, DN 173-7; Drzewiecki Dep. 114:20-22, DN 173-8; Mem. Op. & Order 8). The
Court found that Henkel’s site visits were not done for the purpose of ensuring the safety of the
Magna-Tech employees, but rather were performed from the perspective of a parent corporation’s
understanding of its subsidiary, thus for the parent’s own benefit. (Mem. Op. & Order 7-10).
Maysey makes no new argument of fact or law which undermines the Court’s Order.
As Henkel points out, the only case Maysey cites which was not referenced in the Court’s
Order is Ostendorf v. Clark Equipment Co., 122 S.W.3d 530 (Ky. 2003), which Maysey notes only
for the circumstances in which a duty may be imposed giving rise to a claim of negligent
performance under Section 324A of the Restatement (Second) of Torts. (Pl.’s Mem. Supp. Mot.
Alter & Amend 8). Maysey neither makes any argument regarding the substance of Ostendorf,
nor does he cite any other decisions not addressed by the prior order. As factual support that
Henkel assumed a duty for safety towards Magna-Tech’s employees, Maysey points to Henkel’s
March 2016 assessment of Magna-Tech’s facility and asserts that machine guarding deficiencies

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were identified on Line 46, where Maysey was injured. (Pl.’s Mem. Supp. Mot. Alter & Amend
4-5). As the Court’s Order discussed, the record reflects that Line 46 was not in operation at the
time of the 2016 site visit. (Mem. Op. & Order 8). Further, the Court’s Order noted that “any
repair or service type work on Magna-Tech equipment is managed by Magna-Tech, typically
through contracted resources.” (Mem. Op. & Order 9 (alteration omitted) (quoting Def.’s Mot.
Summ. J. Ex. I, at 21, DN 173-9) (citing Drzewiecki Dep. 134:16-24-135:1-15, DN 134-9)).
Maysey points to no facts or law or which were not addressed by the Court’s prior Order.
Maysey has identified no clear error of law, newly discovered evidence, change in
controlling law, nor any manifest injustice. Accordingly, the motion is denied.
B.

Immediate Appeal
Final judgment as to Maysey’s claims against Henkel will be entered pursuant to Fed. R.

Civ. P. 54(b), allowing for immediate appeal. See Fed. R. Civ. P. 54(b) (“[W]hen multiple parties
are involved, the court may direct entry of a final judgment as to one or more, but fewer than
all, . . . parties only if the court expressly determines that there is no just reason for delay.”); see
also Corrosioneering, Inc. v. Thyssen Env’t Sys., Inc., 807 F.2d 1279, 1282 (6th Cir. 1986) (“Rule
54(b) provides a means by which a district court may release for immediate appeal final decisions
resolving ‘one or more but fewer than all of the claims or parties’ in a multiple-claim or multipleparty action . . . .” (citations omitted)). There is “no just reason for delay” where an issue is
“separate and distinct” from the issues remaining in the case. Corrosioneering, 807 F.2d at 1283.
Courts should also consider other factors such as “the relationship between the adjudicated and
unadjudicated claims” and “the possibility that the need for review . . . might not be mooted by
future developments in the district court.” Id. (internal quotation marks omitted) (citation omitted).

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Courts should also consider “judicial administrative interests.” Curtiss-Wright Corp. v. Gen. Elec.
Co., 446 U.S. 1, 8 (1980).
In this matter, the claims against Henkel are separate and distinct from those that remain
against Nemak. Although both parties assert they have immunity from suit based on the Kentucky
Worker’s Compensation Act, the theories are premised upon distinct legal questions and factual
scenarios. Henkel’s immunity is based upon its status as a parent company to a subsidiary which
has provided workmen’s compensation, whereas Nemak argues its immunity is based upon “upthe-ladder immunity.” (Mem. Op. & Order 3, 14). These separate and distinct claims raise
different legal questions and require separate factual findings, such that rendering this judgment
final will not result in duplicative appeals.
The relationship of the claims and the potential for mootness further demonstrate that there
is no just reason for delay in rendering final judgment. The claims involved in this matter bear no
relationship that makes one dependent upon another. Additionally, any further developments
regarding the remaining claims against Nemak would have no impact upon the claims against
Henkel, as they are not premised upon any relationship or connection to Nemak. Judicial
administrative interests also counsel in favor of rendering a final judgment because a determination
on the matter could facilitate settlement and limit the issues presented at trial. See Curtiss-Wright,
446 U.S. at 8 n.2; Cont’l Airlines, Inc. v. Goodyear Tire & Rubber Co., 819 F.2d 1519, 1525 (9th
Cir. 1987). It would also prevent burdening the jury pool with two separate trials, should the
appellate court reverse the grant of summary judgment in favor of Henkel.
For these reasons, the Court will enter final judgment and a certificate of appealability on
Maysey’s claims pursuant to Fed. R. Civ. P. 54(b) to afford him the right immediately to appeal

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this Court’s determination that Henkel is entitled to summary judgment in its favor. The Court
will also stay this case pending appeal.
IV.

CONCLUSION

For the reasons outlined above, IT IS HEREBY ORDERED that Maysey’s Motion to
Alter or Amend the Judgment (DN 194) is DENIED. This matter is STAYED pending appeal.

October 17, 2022

cc:

counsel of record

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