Hillard v. Master Lock Company et al
MEMORANDUM AND ORDER - Master Lock's Motion to Strike (filing no. 54 ) is denied. Master Lock's Motion for Summary Judgment (filing no. 45 ) is granted. Hillard's Complaint is dismissed without prejudice for lack of subject matter jurisdiction. Hillard's Motion for Sanctions (filing no. 59 ) is denied as moot. A separate judgment will be entered in accordance with this Memorandum and Order. Ordered by Judge Richard G. Kopf. (Copy mailed to pro se party) (AOA)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ROBERT S. HILLARD,
MASTER LOCK COMPANY, and
JOHN DOE, to be sued in both
individual and official capacity,
This matter is before the court on Defendant Master Lock Company’s (“Master
Lock”) Motion for Summary Judgment. (Filing No. 45.) Also pending are Master
Lock’s Motion to Strike (filing no. 54) and Plaintiff’s Motion for Sanctions (filing no.
59). As set forth below, Master Lock’s Motion to Strike and Plaintiff’s Motion for
Sanctions are denied; Master Lock’s Motion for Summary Judgment is granted.
Plaintiff Robert S. Hillard (“Hillard”) filed his Complaint in this matter on June
16, 2010, against Master Lock and John Doe. (Filing No. 1.) On August 17, 2010,
the court conducted an initial review of Hillard’s Complaint and permitted his claims
to proceed to service. (Filing No. 9.) Liberally construed, Hillard alleges that a
defective Master Lock brand padlock cut his thumb. (Filing No. 1 at CM/ECF pp. 26.) Hillard seeks general and special damages for the injury to his thumb, his lost
income and $22,000 for attorney fees. (Id. at CM/ECF pp. 5-6.)
On April 14, 2011, Master Lock filed a Motion for Summary Judgment along
with a Brief in Support and an Index of Evidence. (Filing Nos. 45, 46, and 47.)
Hillard filed a Response to Master Lock’s Motion for Summary Judgment along with
a Brief and an Index in Support. (Filing Nos. 48, 49, and 50.) On May 12, 2011,
Master Lock filed a Reply Brief in Support of its Motion for Summary Judgment.
(Filing No. 51.) Nine days later, Hillard filed a Supplemental Affidavit. (Filing No.
52.) In response to this Affidavit, Master Lock filed a Motion to Strike along with
a Brief in Support. (Filing Nos. 54 and 55.)
The party seeking entry of summary judgment in its favor must set forth “a
separate statement of material facts about which the moving party contends there is
no genuine issue to be tried and that entitles the moving party to judgment as a matter
of law.” NECivR 56.1(a)(1). If the non-moving party opposes the motion, that party
must “include in its [opposing] brief a concise response to the moving party’s
statement of material facts.” NECivR 56.1(b)(1). Such response must “address each
numbered paragraph in the movant’s statement” of facts and must contain pinpoint
citations to evidence supporting the opposition. Id. “Properly referenced material
facts in the movant’s statement are considered admitted unless controverted in the
opposing party’s response.” Id.; see also Fed. R. Civ. P. 56(e) (“A supporting or
opposing affidavit must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant is competent to testify on the matters
Master Lock has submitted a statement of material facts and a properlyauthenticated Index of Evidence in accordance with the court’s Local Rules. Hillard
has submitted a Response that generally restates the allegations of his Complaint and
a Brief that consists of legal arguments opposing Master Lock’s Motion for Summary
Judgment. (Filing Nos. 48 and 49.) Neither document provides a “concise response
to” Master Lock’s statement of material facts. Hillard seeks to address this deficiency
with a Supplemental Affidavit. (Filing No. 52.) However, Master Lock has filed a
Motion to Strike this Affidavit. (Filing No. 54.) The court will address this Motion
to Strike and set forth the relevant undisputed material facts before discussing Master
Lock’s Motion for Summary Judgment.
II. MOTION TO STRIKE
On May 27, 2011, Hillard filed a Supplemental Affidavit. (Filing No. 52.) In
the Supplemental Affidavit, Hillard seeks to add additional facts for the court’s
consideration. (Id. at CM/ECF p. 1.) In response, Master Lock has filed a Motion
to Strike along with a Brief in Support. (Filing No. 54.) Master Lock argues the
court should strike Hillard’s Affidavit, in total, because he filed it in violation of
NECivR 7.0.1(c). (Id.) Alternatively, Master Lock asks the court to strike certain
paragraphs of the Supplemental Affidavit and provide it with leave to file a
subrebuttal brief. (Id.)
The court has carefully reviewed Hillard’s Supplemental Affidavit and Master
Lock’s Motion to Strike. Indeed, Hillard did not seek the court’s leave to file a
Supplemental Affidavit in violation of NECivR 7.0.1(c). Nevertheless, because the
information contained in Hillard’s Supplemental Affidavit does not materially change
the outcome of this case, the court elects not to strike it. Thus, Master Lock’s Motion
to Strike is denied. This matter is deemed fully submitted and the court adopts the
following relevant material facts.
RELEVANT MATERIAL FACTS
Hillard is an inmate incarcerated at the Nebraska State Penitentiary
Master Lock is a limited liability company that manufactures padlocks.
In January 2008, Hillard purchased a Master Lock brand padlock at NSP
Before October 2008, Hillard noticed that the shackle of the padlock, or
the top hook of the padlock that unhooks from the body of the padlock, was peeling.
From October 2008 to April 2010, Hillard did not use his padlock
because he was in the segregation.
On June 3, 2010, after Hillard was released from segregation, he cut his
right thumb when he was attempting to unlock his padlock. Hillard washed the cut
out, put a Band-Aid on it and sent a “kite to medical to document it.”
On June 4, 2010, Hillard saw a nurse who diagnosed Hillard with a
“superficial cut” with no redness or bleeding. The nurse cleaned the cut and gave him
a new Band-Aid. This is the only medical attention Hillard received for the cut.
Hillard did not have to pay any out-of-pocket medical expenses as a
result of the June 3, 2010, cut.
At the time of his injury, Hillard held the job of trash cart detail, a
position that required him to work 10 to 35 minutes, three times a day.
10. Hillard did not miss any work as a result of the cut. In addition, the NSP
nurse did not place Hillard on any work restrictions.
Hillard did not specifically seek any mental health treatment for his cut.
(Filing No. 1 at CM/ECF p. 1; Filing No. 21 at CM/ECF p. 1; Filing No. 47-2, Attach.
2 at CM/ECF at Tr. 49-64, 81-112, 117-48; Filing No. 47-3, Attach. 3; Filing No. 474, Attach. 4; Filing No. 47-6, Attach. 6; Filing No. 47-7, Attach. 7; Filing No. 47-8,
Attach. 8; Filing No. 47-9, Attach. 9; Filing No. 47-10, Attach. 10; Filing No. 47-16,
Standard of Review
Summary judgment should be granted only “if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. Pro. 56(a). It is not the court’s function to weigh
evidence in the summary judgment record to determine the truth of any factual issue.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-51 (1986). In passing upon a
motion for summary judgment, the district court must view the facts in the light most
favorable to the party opposing the motion. Dancy v. Hyster Co., 127 F.3d 649, 652
(8th Cir. 1997).
In order to withstand a motion for summary judgment, the nonmoving party
must substantiate allegations with “‘sufficient probative evidence [that] would permit
a finding in [his] favor on more than mere speculation, conjecture, or fantasy.’”
Moody v. St. Charles Cty., 23 F.3d 1410, 1412 (8th Cir. 1994) (quoting Gregory v.
City of Rogers, 974 F.2d 1006, 1010 (8th Cir. 1992)). “A mere scintilla of evidence
is insufficient to avoid summary judgment.” Id. Essentially the test is “whether the
evidence presents a sufficient disagreement to require submission to a jury or whether
it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S.
Master Lock’s Motion for Summary Judgment
In its Motion and supporting Brief, Master Lock argues, among other things,
that this court lacks subject matter jurisdiction over Hillard’s Complaint because the
amount in controversy does not exceed $75,000. (Filing No. 46 at CM/ECF pp. 911.) The court agrees.
“If the court determines at any time that it lacks subject-matter jurisdiction, the
court must dismiss the action.” Fed. R. Civ. P. 12(h)(3). Hillard asserts that this
court has subject matter jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331,
1332, 1333, 1441, 1343, and 1367. (Filing No. 1 at CM/ECF p. 1.) However, state
law governs products liability and negligence claims and Hillard does not allege any
separate claim arising under federal law. See Erie R.R. v. Tompkins, 304 U.S. 64, 78
(1938). Liberally construing the Complaint, Hillard alleges that this court has
jurisdiction pursuant to 28 U.S.C. § 1332.
Subject matter jurisdiction may be proper pursuant to 28 U.S.C. § 1332,
commonly referred to as “diversity of citizenship” jurisdiction. For purposes of 28
U.S.C. § 1332, “diversity of citizenship” means that “the citizenship of each plaintiff
is different from the citizenship of each defendant.” Ryan v. Schneider Nat’l
Carriers, Inc., 263 F.3d 816, 819 (8th Cir. 2001). In addition, the amount in
controversy must be greater than $75,000.00, exclusive of interest and cost, for
diversity of citizenship jurisdiction. 28 U.S.C. § 1332(a).
“[A] district court has subject matter jurisdiction in a diversity case when a fact
finder could legally conclude from the pleadings and proof adduced to the court
before trial, that the damages the plaintiff suffered are greater than $75,000.” Kopp
v. Kopp, 280 F.3d 883, 885 (8th Cir. 2002). Typically, “[a] complaint that alleges the
jurisdictional amount in good faith will suffice to confer jurisdiction,” but a complaint
will be dismissed if it “appears to a legal certainty that the claim is really for less than
the jurisdictional amount.” Scottsdale Ins. Co. v. Universal Crop Prot. Alliance, 620
F.3d 926, 931 (8th Cir. 2010). If the defendant challenges the plaintiff’s allegations
about the amount in controversy, then the plaintiff must establish jurisdiction by a
preponderance of evidence. Id. “[A]n amount that a plaintiff claims is not ‘in
controversy’ if no fact finder could legally award it.” Kopp, 280 F.3d at 885.
Here, Hillard seeks general and special damages for the injury to his thumb,
lost income and $22,000 for attorney fees. (Filing No. 1 at CM/ECF at pp. 5-6.)
However, Hillard has admitted that his injury did not affect his income. (Filing No.
47-2, Attach. 2 at Tr. 131-32; Filing No. 47-11, Attach. 11 at CM/ECF pp. 3-4.)
Moreover, as a pro se litigant, Hillard is not entitled to an award of attorneys’ fees.
See generally Pickholtz v. Rainbow Techs., Inc., 284 F.3d 1365, 1375 (Fed. Cir. 2002)
(concluding pro se attorneys’ fees are not a payable expense “as there is no direct
financial cost or charge associated with the expenditure of one’s own time.”); Kay v.
Ehrler, 499 U.S. 432 (1991) (“A rule that authorizes awards of counsel fees to pro se
litigants—even if limited to those who are members of the bar—would create a
disincentive to employ counsel whenever such a plaintiff considered himself
competent to litigate on his own behalf. The statutory policy of furthering the
successful prosecution of meritorious claims is better served by a rule that creates an
incentive to retain counsel in every such case.”). In light of these findings, Hillard’s
amount in controversy is limited to the alleged general and special damages
associated with his thumb injury.
The evidence before the court shows that Hillard’s injury was merely a
“superficial” cut. (Filing No. 47-4, Attach 4.) Indeed, after Hillard cut his thumb, he
washed it, put a Band-Aid on it and submitted a “kite for medical to document it.”
(Filing No. 47-2, Attach. 2, Tr. 124-130; Filing No. 47-4, Attach. 4.) Hillard did not
seek emergency medical treatment, but rather visited the nurse the next day. (Id.)
During his visit, the nurse inspected Hillard’s cut, declared that it was “superficial,”
and provided him with a new Band-Aid. (Filing No. 47-4, Attach. 4.) Hillard did not
receive stitches and did not seek any mental health treatment for the injury.1 (Filing
The court notes that Hillard has sought mental health treatment for stress
associated with “excessive litigation.” (Filing No. 47-2, Attach. 2. at Tr. 145-48.)
He states that he suffers minor depression from a scar that the cut left, but he is not
currently seeking mental health treatment. (Id. at CM/ECF pp. 148-49; Filing No. 4711, Attach. 11 at CM/ECF p. 3.)
No. 47-2, Attach. 2, Tr. 145-48.) In his Supplemental Affidavit, Hillard states that
“he is subject” to further medical treatment related to a “rash” that developed after the
cut. (Filing No. 52 at CM/ECF pp. 4-5.) Hillard asserts that he is “not ruling out that
the proximate cause of” of his “rash” was his cut. (Id. at CM/ECF p. 4.) However,
Hillard has provided no competent evidence to show that his rash was caused by his
cut. Hillard’s speculation that his rash is somehow related to his cut is insufficient
to avoid summary judgment. See Elam v. Regions Financial Corp., 601 F.3d 873,
880 (8th Cir. 2010) (stating speculation is insufficient to avoid summary judgment);
Mann v. Yarnell, 497 F.3d 822, 827 (8th Cir. 2007) (concluding a nonmoving party’s
allegations or speculations unsupported by specific facts or evidence are insufficient
to withstand a motion for summary judgment).
Beyond the aforementioned limited medical treatment, Hillard’s out-of-pocket
expenses and other special damages include the cost of lotions and vitamins (which
were used to help heal the cut), filing fees, copies, postage and a replacement
padlock. (Filing No. 47-11, Attach. 11 at CM/ECF p. 7.) Even under the most liberal
construction, these costs, when added to the evidence of damages in the record, do
not establish an amount in controversy greater than $75,000. Because it appears to
a legal certainty that Hillard’s claims are for less than $75,000, his Complaint must
be dismissed for lack of subject matter jurisdiction. See, e.g., DuBose v. Int’l House
of Pancakes, No. 92-2351, 1993 WL 83423 (8th Cir. Mar. 25, 1993) (affirming
dismissal for lack of diversity jurisdiction where, based upon the entire record,
plaintiff’s claims related to coffee scalding injuries were for less than the minimum
amount in controversy).2
In his Response Brief to Master Lock’s Motion for Summary Judgment,
Hillard argues that the Master Lock waived its right to object to subject matter
jurisdiction by admitting subject matter jurisdiction in its Answer. (Filing No. 49 at
CM/ECF p. 5.) Because litigants can neither consent to or waive the right to object
to subject matter jurisdiction, Hillard’s argument lacks merit. James Neff Kramper
Family Farm P’ship v. IBP, Inc., 393 F.3d 828, 834 (8th Cir. 2005).
IT IS THEREFORE ORDERED that:
Master Lock’s Motion to Strike (filing no. 54) is denied.
Master Lock’s Motion for Summary Judgment (filing no. 45) is granted.
Hillard’s Complaint is dismissed without prejudice for lack of subject matter
Hillard’s Motion for Sanctions (filing no. 59) is denied as moot.
A separate judgment will be entered in accordance with this
Memorandum and Order.
DATED this 9th day of August, 2011.
BY THE COURT:
Richard G. Kopf
United States District Judge
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