Gage v. Crete Carrier

Filing 10

MEMORANDUM AND ORDER that the Clerk shall send one summons and one USM-285 form to plaintiff, together with a copy of this memorandum and order. Plaintiff shall complete the forms and send the completed forms back to the Clerk. The USM shall serve the summons and the complaint and amended complaint without payment of costs or fees. The Clerk is directed to set a pro se case management deadline for November 25, 2014: Check for completion of service of summons. Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party with forms) (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DONALD EDWARD GAGE,

)
)
Plaintiff,
)
)
v.
)
)
CRETE CARRIER,
)
)
Defendant.
)
______________________________)

4:13CV3220

MEMORANDUM AND ORDER

This matter is before the Court on its own motion.

On

June 5, 2014, the Court ordered plaintiff to amend his complaint
to “set forth a short and plain statement of the grounds for the
Court’s jurisdiction.”

(Filing No. 8 at CM/ECF p. 8.)

Plaintiff

filed an amended complaint on June 13, 2014 (Filing No. 9).

The

Court will consider plaintiff’s amended complaint as supplemental
to his original complaint.

NECivR 15.1(b)(stating that in pro se

cases, the Court may consider an amended pleading as supplemental
to the original pleading, rather than as superseding).
Plaintiff asserts a workers’ compensation claim against
Crete Carrier, a Nebraska-based company, in his complaint and
amended complaint (Filing No. 1 and Filing No. 9).

Plaintiff

alleges that, while employed by Crete Carrier, a vehicle collided
into a tractor trailer he was operating for Crete Carrier.
Plaintiff suffered physical and mental injuries as a result of

the collision.

Plaintiff alleges that he has “attempted numerous

times to contact Crete Carrier as to workmans [sic]
compensation,” but his attempts have been ignored (Filing No. 1
at CM/ECF p. 2; see also Filing No. 9).
The basic principle of workers’ compensation in
Nebraska is stated in § 48-101:
When personal injury is caused to
an employee by accident or
occupational disease, arising out
of and in the course of his or her
employment, such employee shall
receive compensation therefore from
his or her employer if the employee
was not willfully negligent at the
time of receiving such injury.
Neb. Rev. Stat. § 48-101.

In Cincinnati Indemnity Co. v. A & K

Construction, Co., the Eighth Circuit Court of Appeals held “a
district court has subject matter jurisdiction to try an original
action concerning a state workers’ compensation claim, if the
requisites of diversity jurisdiction are met.”

542 F.3d 623, 624

(8th Cir. 2008); see also Triple H Debris Removal, Inc. v.
Companion Property and Cas. Ins., 560 F.3d 881, 884 (8th Cir.
2009).
Here, liberally construed, plaintiff has stated a claim
upon which relief could be granted under Nebraska’s workers’
compensation laws.

In addition, plaintiff has alleged that the

parties are diverse and the amount in controversy exceeds
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$75,000.00.

See 28 U.S.C. § 1332 (diversity jurisdiction exists

if there is complete diversity of citizenship and the amount in
controversy is greater than $75,000).

Accordingly, the Court

finds that plaintiff’s claims against defendant may proceed to
service of process.

However, the Court cautions plaintiff that

this is only a preliminary determination based on the allegations
of the complaint and amended complaint and is not a determination
of the merits of plaintiff’s claims or potential defenses
thereto.
IT IS ORDERED:
1.

To obtain service of process on defendant,

plaintiff must complete and return the summons form that the
Clerk of the Court will provide.

The Clerk of the Court shall

send one summons form and one USM-285 form to plaintiff, together
with a copy of this memorandum and order.

Plaintiff shall, as

soon as possible, complete the forms and send the completed forms
back to the Clerk of the Court.
2.

Upon receipt of the completed forms, the Clerk of

the Court will sign the summons forms, to be forwarded with a
copy of the complaint and amended complaint to the U.S. Marshal
for service of process.

The Marshal shall serve the summons and

the complaint and amended complaint without payment of costs or
fees.

Service may be by certified mail pursuant to Federal Rule
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of Civil Procedure 4 and Nebraska law in the discretion of the
Marshal.

The Clerk of the Court will copy the complaint and

amended complaint, and plaintiff does not need to do so.
3.

Federal Rule of Civil Procedure 4 requires service

of the complaint on a defendant within 120 days of filing the
complaint.

However, because plaintiff is informed for the first

time of these requirements in this order, plaintiff is granted an
extension of time until 120 days from the date of this order to
complete service of process.
4.

Plaintiff is hereby notified that failure to

obtain service of process on a defendant within 120 days of the
date of this order may result in dismissal of this matter without
further notice as to such defendant.

A defendant has 21 days

after receipt of the summons to answer or otherwise respond to a
complaint.
5.

The Clerk of the Court is directed to set a pro se

case management deadline in this case with the following text:
“November 25, 2014:
6.

Check for completion of service of summons.”

The parties are bound by the Federal Rules of

Civil Procedure and by the Local Rules of this court.

Plaintiff

shall keep the Court informed of his current address at all times

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while this case is pending.

Failure to do so may result in

dismissal.
DATED this 29th day of July, 2014.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

* This opinion may contain hyperlinks to other documents or Web sites.
The U.S. District Court for the District of Nebraska does not endorse,
recommend, approve, or guarantee any third parties or the services or products
they provide on their Web sites. Likewise, the Court has no agreements with
any of these third parties or their Web sites. The Court accepts no
responsibility for the availability or functionality of any hyperlink. Thus,
the fact that a hyperlink ceases to work or directs the user to some other
site does not affect the opinion of the Court.

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