Mann v. Mobile Media Enterprises

Filing 103

MEMORANDUM AND ORDER denying 76 Motion for Summary Judgment. Ordered by Magistrate Judge F. A. Gossett. (CLS, )

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF NEBRASKA C H R IS T O P H E R S. MANN, ) ) P l a i n t i f f, ) ) vs. ) ) M O B IL E MEDIA ENTERPRISES LLC, ) ) D efe n d a n t. )

8 :0 7 C V 4 7 9 M E M O R A N D U M AND ORDER

T h is matter is before the court pursuant to 28 U.S.C. § 636 and the consent of the p a rties on defendant's Motion for Summary Judgment (Doc. 76). The briefing schedule e x p ire d upon the filing of defendant's reply brief on April 19, 2010. The court has reviewed th e pleadings, the briefs, and the evidentiary materials filed by the parties. For the reasons e x p la in e d below, the court finds that the motion for summary judgment must be denied. I . NATURE OF THE CASE O n June 16, 2006, the defendant ("Mobile Media") hosted a tent at the NCAA College W o rld Series for the purpose of marketing Cingular Wireless products. The tent included a "Hi Striker" or "Test Your Strength" game ("Game"), which required the participant to s w in g at and strike a plate with a mallet which, upon impact, caused an object to elevate up a tower toward a bell. If the bell rang, the participant would win a prize. Plaintiff was injured while playing the Game. He alleges in his Second Amended C o m p l a in t (Doc. 41) that the defendant furnished him with a short-handled rubberized m a llet. In order to swing the mallet, he was required to bend over the strike plate with his

f a ce directly over and parallel to the plate. When plaintiff swung the mallet and struck the p la te , the rubberized end of the mallet immediately bounced off the plate, propelled b a c k w a rd s through the air, and struck plaintiff in the face. Plaintiff suffered injuries to his f a c e , eye and nose. Plaintiff has asserted claims for negligence, negligently supplying a chattel for the p la in tif f 's use, and premises liability. M o b ile Media denies liability. In summary, it affirmatively alleges that any dangers a ss o c ia te d with playing the Game are generally known and recognized by ordinary persons in the general public; plaintiff assumed the risk of injury; plaintiff was negligent or c o n trib u to rily negligent; plaintiff failed to mitigate his damages; and Mobile Media met all a p p lic a b le standards of care. I I . LEGAL ANALYSIS A. J u r is d ic tio n and Venue

T h e pleadings establish that the plaintiff resides in the State of Kansas. Defendant is a limited liability company organized and existing according to the laws of the State of D elaw are with its principal place of business in the State of Georgia. Plaintiff's injury o c c u rre d in the State of Nebraska. This court has "diversity" subject matter jurisdiction p u rs u a n t to 28 U.S.C. § 1332. Venue in this district is proper under 28 U.S.C. § 1391.

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B.

S t a n d a r d of Review 1 . Fed. R. Civ. P. 56

S u m m ary judgment "should be rendered if the pleadings, the discovery and disclosure m a te ria ls on file, and any affidavits show that there is no genuine issue as to any material fact a n d that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). A party seeking summary judgment bears the initial responsibility of informing the c o u r t of the basis for its motion, and identifying those portions of "the pleadings, depositions, a n sw e rs to interrogatories, admissions on file, together with the affidavits, if any," which it b e liev e s demonstrates the absence of a genuine issue of material fact. See Tenbarge v. Ames T a p in g Tool Sys., Inc., 128 F.3d 656, 657-58 (8th Cir. 1997); NECivR 56.1(a). In the face of a properly supported motion, "[t]he burden then shifts to the nonmoving p a rty to 'set forth specific facts showing that there is a genuine issue for trial.'" Prudential In s . Co. v. Hinkel, 121 F.3d 364, 366 (8th Cir. 1997), cert. denied, 522 U.S. 1048 (1998) ( q u o t in g former Fed. R. Civ. P. 56(e)). The nonmoving party must set forth specific facts, s u p p o rte d by affidavits or other proper evidence, showing that there is a genuine issue for tria l. See Wingate v. Gage County School Dist., No. 34, 528 F.3d 1074, 1078 (8th Cir. 2008); F e d . R. Civ. P. 56(e)(2). "To establish the existence of a genuine issue of material fact, '[a] p l a in t if f may not merely point to unsupported self-serving allegations.'" Bass v. SBC C o m m c 'n s , Inc., 418 F.3d 870, 872 (8th Cir. 2005). The plaintiff must substantiate his or her

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a lle g a tio n s with sufficient probative evidence that would permit a finding in his favor. See S m ith v. International Paper Co., 523 F.3d 845, 848 (8th Cir. 2008). 2 . Compliance with Local Rules 7.0.1 and 56.1 " T o be considered on summary judgment, documents must be authenticated by and a tta c h ed to an affidavit made on personal knowledge setting forth such facts as would be ad m issib le in evidence or a deposition that meets the requirements of Fed. R. Civ. P. 56(e). D o c u m e n ts which do not meet those requirements cannot be considered." Stuart v. General M o to r s Corp., 217 F.3d 621, 635 n.20 (8th Cir. 2000); see also, e.g., Shanklin v. Fitzgerald, 3 9 7 F.3d 596, 602 (8th Cir. 2005); DG&G, Inc. v. FlexSol Packaging Corp. of Pompano B e a c h , 576 F.3d 820, 825-26 (8th Cir. 2009). Thus, the local rules of this court require that documents used as evidence to support o r oppose a motion must be authenticated by affidavit. NECivR 7.0.1 & NECivR 56.1. In th e case of evidence submitted in support of a motion, "[a]n affidavit must identify and a u th e n tic a te documents filed with the index. The affidavit must be made on personal k n o w le d g e , set forth facts that would be admissible in evidence, show affirmatively that the a f f ia n t is competent to testify to the matters stated, and identify the related motion." NECivR 7 .0 .1 (a )(2 )(C ). NECivR 7.0.1 further cautions that "a party who does not follow this rule m a y be considered to have abandoned in whole or in part that party's position on the pending m o tio n ."

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N E C iv R 56.1 applies to motions for summary judgment. It requires the movant to in c lu d e in the brief "a separate statement of material facts about which the moving party c o n te n d s there is no genuine issue to be tried and that entitles the moving party to judgment a s a matter of law. Failure to submit a statement of facts may be grounds to deny the m o tio n ." NECivR 56.1(a)(1) (Emphasis in original). Furthermore, The statement of facts should consist of short numbered paragraphs, each c o n t a i n in g pinpoint references to affidavits, pleadings, discovery responses, d e p o sitio n testimony (by page and line), or other materials that support the m a te ria l facts stated in the paragraph. A fact is "material" if pertinent to the o u tc o m e of the issues identified in the summary judgment motion. The s ta te m e n t of facts must describe the parties and recite all facts supporting the c o u rt's venue and jurisdiction. The statement must not contain legal co n clu s io n s. Failure to provide citations to the exact locations in the record s u p p o rtin g the factual allegations may be grounds to deny the motion.

N E C iv R 56.1(a)(2) (Emphasis in original). It is no secret that the judges of this court intend to enforce the local rules of practice, e s p e c ia lly rules relating to the substance of motions. See, e.g., PW Eagle, Inc. v. Schnase, 3 7 6 F. Supp. 2d 945 (D. Neb. 2005); Cordray v. 135-80 Travel Plaza, Inc., 356 F. Supp. 2d 1 0 1 1 (D. Neb. 2005); Hillard v. Clarke, 245 F.R.D. 419 (D. Neb. 2007). In this instance, the defendant submitted over 200 pages of unauthenticated 1 " ev id e n c e," together with one unauthenticated videotape, in support of its motion for s u m m a ry judgment. The defendant did not provide a statement of uncontroverted facts, and

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The plaintiff also submitted unauthenticated "evidence" in response to the motion. -5 -

d id not provide pinpoint citations to the record. When the plaintiff pointed out this serious d e f ic ie n c y, the defendant belatedly attempted­unsuccessfully­to remedy the matter in the re p ly brief. Under the circumstances, the court finds that the defendant has not made a properly s u p p o rte d motion for summary judgment and has failed to show that there is no genuine issue a s to any material fact or that it is entitled to judgment as a matter of law. T h e trial schedule will not accommodate the re-submission of any motions for s u m m a ry judgment, and the deadline for filing motions for summary judgment will not be re o p e n ed . ORDER I T IS ORDERED that defendant's Motion for Summary Judgment (Doc. 76) is d e n ie d . D A T E D May 7, 2010. B Y THE COURT: s / F.A. Gossett U n ite d States Magistrate Judge

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