Gage v. Crete Carrier

Filing 18

MEMORANDUM OPINION - The Nebraska statute of limitations bars Gage's claim. A separate order will be entered in accordance with this memorandum opinion. Ordered by Senior Judge Lyle E. Strom. (Copy e-mailed to pro se party) (GJG) Modified on 10/9/2014 to reflect copy e-mailed rather than mailed to pro se party (GJG).

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

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

4:13CV3220

MEMORANDUM OPINION

This matter is before the Court on the motion to
dismiss (Filing No. 15) of defendant Crete Carrier (“Crete”).
After review of the motion, brief, index of evidence, and
relevant law, the Court finds as follows.
I.

BACKGROUND
Plaintiff Donald Gage (“Gage”) filed his complaint

December 23, 2013 (Filing No. 1).

Gage complained of a traffic

accident on February 5, 2005, where he allegedly experienced a
traumatic event.

Gage states he now suffers from post-traumatic

stress as a result of his on-duty accident; Gage also states that
his employer Crete refused to aid him in workers compensation
claims.

Gage originally claimed jurisdiction under the

Constitution, civil rights, and employment discrimination (Id. at
4).

Upon initial review for summary dismissal under Title
28, Section 1915, the Court found that Gage failed to properly
plead federal question jurisdiction (Filing No. 8, at 5-6).
However, the Court found that Gage was a citizen of Arizona and
Crete was a resident of Nebraska (Id. at 7).

Gage requested

large, unjustified damages (Filing No. 1, at 5).

Therefore, the

Court ordered Gage to amend his complaint in thirty days and
substantiate his damages request with facts that could lead the
Court to find diversity jurisdiction existed (Filing No. 8, at
8).

Within thirty days, Gage amended his complaint (Filing No.

9) to the Court’s satisfaction (Filing No. 10).

The Court found

that Gage successfully pled a Nebraska workers compensation claim
(Filing No. 10, at 2-3).
In September after Crete received its service of
process, it filed the instant motion.
on three bases.

Crete argues for dismissal

First, Gage’s claims are barred by the exclusive

remedy of Nebraska Workers Compensation statutes (Filing No. 16,
at 3-4).

Second, Gage’s claims are time barred (Id. at 4-5).

Third, Gage failed to sufficiently provide another basis for his
claim.

Gage has not responded to Crete’s motion, though he filed

a supplement to his complaint which has no effect on the Court’s
analysis of Crete’s motion (See Filing No. 17).

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II.

LEGAL STANDARD
A court may grant a motion to dismiss when the

plaintiff has failed “to state a claim upon which relief can be
granted."

Fed. R. Civ. P. 12(b)(6).

The Court must “accept the

allegations contained in the complaint as true and draw all
reasonable inferences in favor of the nonmoving party.”

Cole v.

Homier Distrib. Co., 599 F.3d 856, 861 (8th Cir. 2010) (citing
Coons v. Mineta, 410 F.3d 1036, 1039 (8th Cir. 2005)).

“The

plausibility standard requires a plaintiff to show at the
pleading stage that success on the merits is more than a sheer
possibility.

It is not, however, a probability requirement.”

Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir.
2009) (internal quotations and citations omitted).
III. DISCUSSION
Gage’s claim is time barred.
substantive law of Nebraska.

The Court applies the

Under Nebraska law, the statute of

limitation in injuries not arising under contract is four years.
Neb. Rev. Stat. § 25-207.

The date of the alleged injury was

February 2005 which means the statute of limitation ran by
February 2009.

Therefore, the Nebraska statute of limitations

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bars Gage’s claim.

A separate order will be entered in

accordance with this memorandum opinion.
DATED this 9th day of October, 2014.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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