American Home Assurance Company et al v. Greater Omaha Packing Company Inc.

Filing 459

ORDER denying 434 defendant's motion for reconsideration. Ordered by Senior Judge Lyle E. Strom. (JDR)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
AMERICAN HOME ASSURANCE
COMPANY and CARGILL MEAT
SOLUTIONS CORPORATION,

)
)
)
)
Plaintiffs,
)
)
v.
)
)
GREATER OMAHA PACKING COMPANY,)
INC.,
)
)
Defendant.
)
______________________________)

8:11CV270

MEMORANDUM AND ORDER

This matter is before the Court on the motion of the
counterclaim plaintiff Greater Omaha Packing Company, Inc.,
(Filing No. 434) for the reconsideration of the Court’s April 4,
2014, memorandum opinion (Filing No. 432) and order and judgment
(Filing No. 433) dismissing its counterclaim.
filed by all parties.
I.

Briefs have been

Oral arguments were held on April 9, 2014.

BACKGROUND
This case involves Greater Omaha Packing Company, Inc.

(“GOPAC”), a meat supplier, and Cargill Meat Solutions
Corporation. (“Cargill”) a meat producer/distributer, and its
insurer, American Home Assurance Company.

GOPAC and three other

meat suppliers delivered hamburger makings to Cargill, which in
turn used the meat to produce hamburger patties.

In 2007, those

patties were distributed in the United States and led to an E.

coli outbreak.

An investigation traced the E. coli back to

Cargill.
Cargill hired Shawn Stevens, Esq., to defend against
the claims of those who fell ill from consuming Cargill’s
burgers.

During the course of his defense of Cargill, Mr.

Stevens became aware of facts which led Cargill to file the
instant action against GOPAC for essentially supplying Cargill
with meat contaminated with E. coli in violation of its contract
and warranties.
Some time after this discovery in 2009, Mr. Stevens was
contacted by New York Times reporter, Michael Moss.

The contents

of their conversations, in part, led to Mr. Moss writing a
Pulitzer Prize winning article (the “Article”) about the meat
industry and the 2007 outbreak.

In the Article, Mr. Moss

attributed statements to Mr. Stevens.

These statements are the

basis of GOPAC’s counterclaim of tortious interference with
business relationships and expectancies (hereinafter “Tortious
Interference”).

The lack of evidence regarding these comments is

also the basis of the Court’s previous order granting summary
judgment on GOPAC’s claim.

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In its summary judgment motion, GOPAC relied upon the
Article and three e-mails1 to establish what Mr. Stevens said to
Mr. Moss.
hearsay.

These documents contain as many as three levels of
After review of the motion, briefs, and indices of

evidence, the Court determined that GOPAC lacked admissible
evidence to prove “Mr. Stevens made the comments to Mr. Moss that
the Article attributes to him.”

Filing No. 432, at 9.

GOPAC has

now filed a motion for reconsideration on various grounds2
including whether a stipulation nullifies the Court’s reasoning,
whether the Business Record Exception covers the hearsay
statements in question, and whether the Court applied the wrong
legal standard in granting summary judgment.

1

Filing Nos. 367-15, 368-2, and 368-14 (hereinafter
“Exhibits HHH, JJJ, and VVV” respectively; the “Moss E-mails”
collectively).
2

To the extent that GOPAC argues that Cargill did not
argue the admissibility of Exhibits HHH, JJJ, and VVV in its
brief for summary judgment, the Court disagrees. In its brief in
support of its motion for summary judgment, Cargill stated “GOPAC
understands that it relies solely on hearsay to support its
theory.” Filing No. 220, at 28. In GOPAC’s response, it
asserted Exhibits HHH, JJJ, and VVV supported its claims in
addition to the Article. Filing No. 363, at 20, 22-24, 44, 4655, 66-68, 71. Cargill rebutted GOPAC’s assertions and stated in
its reply brief that the Moss E-mails were inadmissible. Filing
No. 396, at 11-13.
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II.

STANDARD OF REVIEW
Rule 59(e) of the Federal Rules of Civil Procedure

allows the Court to alter or amend a judgment to correct an error
in the judgment.
Rule 60(b) of the Federal Rules of Civil Procedure
provides:

“On motion and just terms, the court may relieve a

party or its legal representative from a final judgment, order,
or proceeding for . . . any other reason that justifies relief.”
Rule 60(b)(6) applies when the moving party has been denied "a
full and fair opportunity to litigate his claim" and where the
moving party has been denied "adequate redress."

Harley v.

Zoesch, 413 F.3d 866, 871 (8th Cir. 2005).
III. DISCUSSION
A.

Stipulation
The Court begins its analysis on the issue of whether

the parties stipulated to the admissibility of the Article and
Moss E-mails.

The Court finds that Mr. Coyle and Mr. Bylund

stipulated to Mr. Bylund’s offer:

a mutual stipulation “with

respect to authentication, foundation for documents that [the
parties] produced.”

Filing No. 364-4, at 3.

Mr. Bylund’s offer

did not mention the Business Record Exception and the Court finds

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the parties did not stipulate that all documents the parties
produced fell into the Business Record Exception.3
Even if the Court found that the parties had
established the Business Record Exception for all documents which
Cargill produced, either by establishing the foundational
elements of the exception or by stipulation, such a finding would
not cover hearsay within those documents, which would require
separate exceptions for each level of hearsay.

See Johnson v.

Lutz, 253 N.Y. 124, 128, 170 N.E. 517 (N.Y. 1930) (“It was not
intended to permit the receipt in evidence of entries based upon
voluntary hearsay statements made by third parties not engaged in
the business or under any duty in relation thereto.”); Nissan
Motor Co. v. Armstrong, 145 S.W.3d 131, 140 (Tex. 2004)
(“consumer complaints in a company's files are generally hearsay
within hearsay, and require their own exception in addition to
that for business records generally.”).

The breadth of the

stipulation would not extend to the second level of hearsay, the
statements in the Moss E-mails, because the mere presence of emails in a company’s server is insufficient to establish that all

3

The Court notes GOPAC made objections to documents which
GOPAC or Cargill produced in discovery on the basis of hearsay.
Filing No. 403-1. It follows that if the stipulation were as
broad as GOPAC asserts, GOPAC could not have made those
objections.
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the contents of those e-mails fall within the Business Records
Exception.

E.g., In re Oil Spill, MLD No. 2179, 2012 WL 85447,

at *3 (E.D. La. Jan. 11, 2012).
B.

Records of a Regularly Conducted Activity
The issue before the Court is whether Mr. Moss’s

statements within the e-mails are admissible hearsay.

In these

e-mails, Mr. Moss claims Mr. Stevens made varying statements
regarding GOPAC’s and Cargill’s liabilities for the E. coli
outbreak.

See Exhibits HHH, JJJ, and VVV.

GOPAC wishes to admit

into evidence these out-of-court statements to prove Mr. Stevens
made these comments to Mr. Moss.

Therefore, the e-mails are

being offered to prove the matter asserted in the e-mails.
R. Evid. 801(c)(1).

Fed.

The parties argue as to whether the business

record exception applies to those statements.
The “Business Record Exception” is Federal Rule of
Evidence 803(6).

The second element of the Business Records

exception requires the record was kept in the course of a
regularly conducted activity of a business.

Courts analyze the

business of the out-of-court declarant when determining whether
the out-of-court statement was made in the regular course of its
business.

See e.g., G. Michael Fenner, The Hearsay Rule, pp.

169-70, 172-73 (3d ed. 2013); United States v. Vihneau, 187 F.3d
70, 75 (1st Cir. 1999) (citing Johnson, 253 N.Y. 124, 170 N.E.
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517)).

Cargill is not the out-of-court declarant for the Moss E-

mails.

GOPAC has not argued and cannot establish the regularity

of Mr. Moss’s e-mails nor whether these e-mails are records.
Thus, Exhibits JJJ, HHH, and VVV do not fall into the Business
Record Exception.

GOPAC does not offer, and the Court cannot

find, another exception under which to allow the Moss E-mails or
the Article, so those documents are inadmissible hearsay.
Therefore, the Court will not reconsider the weight of this
evidence in the Court’s April 4, 2014, Order.
C.

Rule 56(c)(2)
GOPAC states that In re Zurn Pex Plumbing Products

Liability Litigation (hereinafter “Zurn”) is no longer good law.4
Filing No. 435, at 9-11.

No case law or amendments to the

Federal Rules of Civil Procedure have overruled or abrogated this
case.

See In re Zurn Pex Plumbing Prods. Liab. Litig., 644 F.3d

604, 613 (8th Cir. 2011).

The 2010 amendment to Federal Rule of

Civil Procedure 56(c)(2) made no change to the rule which
abrogates the Zurn decision insofar as the rule applies to this
case.

4

The Court notes GOPAC’s argument that the Eighth
Circuit’s opinion in Zurn was based on the previous iteration of
Rule 56 when evaluating a district court opinion entered before
the effective date of the amendment. Filing No. 434, at 10 n.4.
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GOPAC’s confusion between Zurn and Rule 56(c)(2) is
easily resolved.

In Zurn, the Eighth Circuit affirmed that

district courts rely only on admissible evidence at the summary
judgment stage.

Zurn, 644 F.3d at 613 (citing Tuttle v.

Lorillard Tobacco Co., 377 F.3d 917, 924 (8th Cir. 2004)).

This

standard is indistinguishable from Rule 56(c)(2) in the instant
matter.

Rule 56(c)(2) states “[a] party may object that the

material cited to support or dispute a fact cannot be presented
in a form that would be admissible in evidence.”

Where, as here,

the proponent of evidence can only sustain its claim on the
introduction of inadmissable hearsay evidence and presented no
alternative form for that evidence, the evidence cannot take a
form “admissible in evidence.”
GOPAC has cited the Article and Moss E-mails in its
statement of facts opposing summary judgment.
56(c)(3).

Fed. R. Civ. P.

Cargill objected to the admissibility of those

documents in its briefs in support of its motion for summary
judgment.

Filing No. 220, at 28; Filing No. 396, at 11-13.

GOPAC did not cite other forms to admit the Moss E-mails or the
Article into evidence.
In oral argument, GOPAC mentioned the possibility that
Mr. Moss might show up at trial, but the Court notes the parties
agreed that the New York Times has failed to respond to a
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subpoena, Mr. Moss’s deposition was never taken, and there was no
affidavit from Mr. Moss as to what he might testify to at trial.
Fed. R. Civ. P. 56(c)(2), (3), (4).

There was no evidence in the

summary judgment phase as to what Mr. Moss might offer, if
anything, in court.
The Moss E-mails and the Article could not be reduced
to an admissible form for trial during the summary judgment
phase.

Zurn is not inapposite to Federal Rule of Civil Procedure

56(c)(2) and Cargill’s reliance upon that case was not
inappropriate.

Accordingly,

IT IS ORDERED that GOPAC’s motion for reconsideration
is denied.
DATED this 14th day of April, 2014.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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