Bremmer et al v. Appleton Electric, LLC et al
ORDER - Bremmer's Motion to Intervene; Waive or Delay order on Costs and Fees Prior to Refiling; and Extend Case Progression Deadlines (Filing No. 82 ) is denied. The defendants' Motion to Strike (Filing No. 89 ) is granted. The plaintiff's Motion to Continue and Extend Deadlines (Filing No. 97 ) is denied. The plaintiff's Motion to Compel (Filing No. 102 ) is denied. Ordered by Magistrate Judge Thomas D. Thalken. (MKR)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
WASTE CONNECTIONS, INC.,
APPLETON ELECTRIC, LLC and
EMERSON ELECTRIC, LLC,
This matter is before the court on four motions.
The first motion is Rick
Bremmer’s (Bremmer)1 Motion to Intervene; Waive or Delay Order on Costs and Fees
Prior to Refiling; and Extend Case Progression Deadlines (Filing No. 82).
defendants filed a brief (Filing No. 94) and index of evidence (Filing No. 95) in
opposition. Bremmer filed a brief (Filing No. 107) in reply. The second motion is the
defendants’ Motion to Strike (Filing No. 89). The defendants filed a brief (Filing No. 90)
and index of evidence (Filing No. 91) in support of the motion seeking to strike the
plaintiff’s designation of expert witnesses as untimely. The plaintiff filed a brief (Filing
No. 96) in opposition.
The defendants filed a brief (Filing No. 109) and index of
evidence (Filing No. 110) in reply. The third motion is the plaintiff’s Motion to Continue
and Extend Deadlines (Filing No. 97). The plaintiff filed a brief (Filing No. 98) and index
of evidence (Filing No. 99) in support of the motion. The defendants filed a brief (Filing
No. 109) and index of evidence (Filing No. 110) in opposition. The plaintiff filled a brief
(Filing No. 111) in reply. The fourth motion is the plaintiff’s Motion to Compel (Filing No.
102). The plaintiff filed a brief (Filing No. 103) and index of evidence (Filing No. 104) in
support of the motion.
The defendants filed a brief (Filing No. 112) and index of
evidence (Filing No. 113) in opposition.2
As explained below, the court previously granted Bremmer leave to voluntarily dismiss his
claims without prejudice.
The plaintiff’s Motion to Strike (Filing No. 114) and the defendants’ Application for Fees (Filing
No. 117) will be addressed in separate orders.
The plaintiff’s action arises from an injury Bremmer sustained on the defendant
Appleton Electric, LLC’s (Appleton) premises. See Filing No. 1 Ex. 1 - Complaint. On
May 25, 2011, Bremmer was on Appleton’s premises to deliver an order for Waste
Connections, Inc. (WCI) when Bremmer fell into an open pit approximately twenty feet
by twenty feet wide and five feet deep. Id. ¶¶ 9-13. Bremmer alleges he sustained a
torn rotator cuff and herniated disc. Id. ¶¶ 18-19. According to Bremmer’s treating
physician for Bremmer’s back injury, Bremmer reached maximum medical improvement
for his work related injury on September 27, 2012.
December 31, 2012, Letter.
See Filing No. 110-2 Ex. 2 -
According the physician treating Bremmer’s shoulder
injury, Bremmer reached maximum medical improvement for his rotator cuff on July 3,
2013. See id. - July 3, 2013, Progress Note.
On September 18, 2012, Bremmer and WCI filed the Complaint in the District
Court of Platte County, Nebraska, seeking recovery for Bremmer’s alleged injuries and
WCI’s payment of workers compensation benefits to Bremmer. See Filing No. 1 Ex. 1 Complaint.
Generally, the plaintiffs alleged the defendants’ negligence caused
Bremmer’s injuries. Id. ¶¶ 18-21. The defendants deny the plaintiff’s allegations and
assert the affirmative defenses of comparative negligence, contributory negligence, and
assumption of the risk. See Filing No. 1-1 p. 8 - Answer ¶¶ 3-4. On December 20,
2012, the defendants removed this action from the District Court of Platte County,
Nebraska, to the United States District Court for the District of Nebraska. See Filing No.
1 - Notice of Removal.
On January 4, 2013, attorney Christopher A. Sievers (Mr.
Sievers) entered his appearance for Bremmer and WCI.
See Filing No. 12 -
Appearance of Counsel. On January 17, 2013, the parties filed their Rule 26(f) Report.
See Filing No. 18 - Report. The parties’ Rule 26(f) Report listed the elements of the
plaintiffs’ negligence claim and stated the defendants disputed all elements of the
plaintiffs’ claims, including the third element, causation. See id. Thereafter, the parties,
including Bremmer, engaged in discovery. See, e.g., Filing Nos. 23, 28-30, 37, and 44.
On May 29, 2013, Mr. Sievers provided a letter to the court, indicating Bremmer
underwent rotator cuff surgery on January 7, 2013, and was not expected to reach
maximum medical improvement until August 2013. See Filing No. 36 - May 29, 2013,
Letter. On May 30, 2013, the parties moved to reschedule a June 7, 2013, planning
conference to September 5, 2013, to allow Bremmer time to reach maximum medical
improvement. See Filing No. 40 - Joint Motion. The court granted the joint motion and
rescheduled the planning conference for September 5, 2013. See Filing No. 41 - Text
On August 27, 2013, the plaintiffs filed a Memorandum to Court on Mediation and
Motion to Continue Expert Report Deadline.
See Filing No. 58.
represented Bremmer’s “treating doctor [ ] recently opined Mr. Bremmer [ ] reached
maximum medical improvement for his shoulder” and the plaintiffs were waiting on
Bremmer’s final impairment rating and work restrictions. See id. For this reason, the
plaintiffs requested a continuance of the expert disclosures deadline.
September 6, 2013, the court entered an Order Setting Final Schedule for Progression
of Case. See Filing No. 60. The order gave the plaintiffs until November 4, 2013, to
disclose expert witnesses in accordance with Fed. R. Civ. P. 26(a)(2), the defendants
until December 23, 2013, and the plaintiff until January 13, 2014, for rebuttal experts.
On September 26, 2013, the defendants filed a notice to take Bremmer’s
deposition, which date was agreed upon between counsel for the parties. See Filing
No. 62 - First Notice; Filing No. 95-1 Ex. 1 - Newman Aff. ¶ 6. On October 15, 2013, Mr.
Sievers informed defense counsel by fax: “Rick Bremmer will not be available to attend
the deposition set for October 23, 2013, at 10:00 a.m.” See Filing No. 108-3 - Newman
October 21, 2013, Fax. Defense counsel responded stating the defendants would not
withdraw the notice for deposition and expected Bremmer to attend. See id. Bremmer
did not appear for the scheduled deposition. See Filing No. 95-4 Ex. 4 - First Depo.
Transcript (TR.). The defendants served notice for another deposition of Bremmer on
November 11, 2013. See Filing No. 67 - Second Notice. Bremmer did not appear for
the second deposition. See Filing No. 95-5 Ex. 5 - Second Depo. TR.
On November 26, 2013, Bremmer moved to voluntarily dismiss his claims without
prejudice because “Bremmer no longer wishe[d] to pursue his claim for loss of earning
capacity and future medical in conjunction with [WCI].”
See Filing No. 68.
December 20, 2013, the court granted Bremmer’s motion with the condition that before
he refile his claims against the defendants, he pay the defendants’ attorneys’ fees and
costs in defending the action against Bremmer. See Filing No. 73 - Order.
Following Bremmer’s dismissal, the court entered an Amended Order Setting
Final Schedule for Progression of Case on December 20, 2013. See Filing No. 74. The
parties had until March 28, 2014, to complete depositions. See id. Additionally, the
defendants were given until February 21, 2014, to disclose their expert witness reports
and the plaintiff, now only WCI, was given until March 13, 2014, to disclose rebuttal
experts. See id. The court set the final pretrial conference for April 24, 2014, and jury
trial for May 12, 2014. See id.
In early January 2014, Bremmer’s new counsel notified defense counsel of
Bremmer’s intent to rejoin the lawsuit. See Filing No. 108-1 Ex. 1 - Brown Aff. ¶ 3; 1084 Ex. 4 - January Emails. Defense counsel responded the defendants would seek fees
and costs as allowed pursuant to the court’s December 20, 2013, Order. See Filing No.
108-4 Ex. 4 - January Emails. At that time, Bremmer’s counsel asked for an itemized
list of fees and costs. Id. On March 20, 2014, Bremmer’s counsel again asked for an
itemized list of fees and costs. See Filing No. 108-5 Ex. 5 - March Emails.
On February 21, 2014, the defendants timely served their Rule 26(a)(2)
disclosures. See Filing No. 75 - Defendants’ Certificate of Service; Filing No. 91-1 Ex. 1
- Newman Aff. ¶ 3. The defendants identified two expert witnesses: Alfred P. Bowles,
II, M.D. (Dr. Bowles), a medical doctor and biomechanics expert, and Michael D.
Downey (Mr. Downey), an occupations safety expert.
See Filing No. 91-2 Ex. 2 -
Defendants’ Rule 26(a)(2) Disclosures. The defendants served all information required
in Rule 26(a)(2)(B). See id. On February 28, 2014, the parties filed their proposed
witness lists. See Filing No. 76 and 77.
On March 13, 2014, the plaintiff served its Rule 26(a)(2) disclosures and
identified for the first time three potential expert witnesses: Ted Stricklett (Mr. Stricklett),
a vocational and loss of earnings expert, John Bonselle (Mr. Bonselle), a safety and
construction expert, and Dr. John Kuhnlein (Dr. Kuhnlein), an occupational medical
doctor. See Filing No. 83 - Plaintiffs’ [sic] Rule 26(a)(2) Disclosures. The plaintiff’s
disclosure included only the names and resumes for the potential expert witnesses.
See id. The defendants have not received the plaintiff’s potential expert witnesses’
reports as required by Rule 26. See Filing No. 91-1 Ex. 1 - Newman Aff. ¶ 4.
On March 18, 2014, and April 2, 2014, the plaintiff requested the defendants to
designate a corporate representative. See Filing No. 99-1 Exs. 1 and 2 - Mar. 18, 2014,
and Apr. 2, 2014, Letters. In response, the defendants emailed plaintiff’s counsel and
indicated the defendants could not designate a corporate representative because the
plaintiff never provided a list of matters for examination. See Filing No. 110-3 Ex. 3 Mar. 20, 2014, Email; Filing No. 104-1 Ex. 3 - Apr. 3, 2014, Letter.
On March 11, 2014, Bremmer filed the motion to intervene. See Filing No. 82.
On March 20, 2014, and March 24, 2014, defense counsel informed Bremmer’s counsel
the defendants incurred attorney’s fees and costs amounting to $11,294, later amended
to $10,998.34. See Filing No. 95-1 Ex. 1 - Newman Aff. ¶ 13; Filing No. 95-9 Ex. 9 Itemized Expenses.
Bremmer’s Motion to Intervene
Bremmer, who argues he was previously unrepresented, seeks to rejoin this
case and extend all deadlines for 120 days. See Filing No. 82 - Motion. Bremmer
argues filing a separate lawsuit would waste judicial resources, present issue preclusion
problems, and potentially create different damages verdicts.
Id. at 2.
counsel represents he contacted defense counsel in January and March to determine
the defendants’ costs in defending Bremmer’s claims but did not receive an itemization
of the defendants’ costs. Id. at 2-3. Therefore, Bremmer contends the court should
either waive the costs or allow the costs to be paid at the resolution of this case. Id.
Additionally, Bremmer argues for an extension of 120 days to obtain causation opinions
from experts, retain a vocational expert, and conduct additional discovery. Id.
The defendants address Bremmer’s motion in the context of a motion for relief
under Rule 60 and argue Bremmer’s motion should be denied because Bremmer has
failed to show exceptional circumstances justifying relief from the court’s order. See
Filing No. 94 - Response.
The defendants argue Bremmer had a full and fair
opportunity to litigate this matter but simply refused to appear for his deposition and, in
lieu of facing sanctions, chose to dismiss his claims.
Id. at 5-7.
contend Bremmer’s argument he was unrepresented is demonstrably false. Id. (noting
Bremmer’s discovery responses). The defendants argue releasing Bremmer from his
obligations under the dismissal order and further delaying this trial would increase costs
all parties, except Bremmer. Id. at 8. As part of the defendants’ response, and in
accordance with the dismissal order, the defendants attached an itemization of their
costs, claiming they incurred $10,998.34 defending against Bremmer’s claims. See
Filing No. 95-9 Ex. 9 - Itemized Expenses.
In reply, Bremmer argues he attempted to obtain an itemization of expenses less
than one month after the court dismissed Bremmer’s claims. See Filing No. 107 Reply. Bremmer argues because the defendants delayed in providing an itemization, it
would be reasonable to find the defendants waived their right to costs or delay the
imposition of payment of costs until the resolution of this matter. Id. Bremmer also
contends the application for expenses is suspect and overreaching. Id. at 2. Bremmer
argues the fact the amount of $10,998.34 does not match the previous number given,
$11,294, demonstrates an appearance of impropriety.
asserts the court should not award costs associated with both failed depositions
because the defendants knew in advance that Bremmer would not appear. Id.
Under Fed. R. Civ. P. 24, “[w]hether a person moves for “intervention of right” or
for “permissive intervention,” the motion must be timely. Am. Civil Liberties Union of
Minn. v. Tarek ibn Ziyad Acad., 643 F.3d 1088, 1093 (8th Cir. 2011) (citing Fed. R.
Civ. P. 24). When evaluating timeliness, a court should consider, “(1) the extent the
litigation has progressed at the time of the motion to intervene; (2) the prospective
intervenor’s knowledge of the litigation; (3) the reason for the delay in seeking
intervention; and (4) whether the delay in seeking intervention may prejudice the
existing parties.” Planned Parenthood of the Heartland v. Heineman, 664 F.3d 716,
718 (8th Cir. 2011).
The relevant factors weigh against Bremmer’s intervention.
knowledge of the litigation and had nominally participated until his deposition.
According to representations made to the court when Bremmer was a plaintiff in this
action for at least a year, Mr. Sievers represented Bremmer. See, e.g., Filing No. 12 Appearance of Counsel. However, whether or not Mr. Sievers represented Bremmer is
irrelevant. This case is in the advanced stages of litigation with the pretrial conference
scheduled for April 24, 2014, and trial on May 12, 2014. See Filing No. 74. Bremmer’s
reintroduction into the matter would cause additional undue delay late into the litigation,
unfairly prejudicing the other parties.
The court previously granted extensions for
Bremmer, but will not allow Bremmer to rejoin and garner additional extensions.
To the extent Bremmer’s motion is a motion under Rule 60, reconsideration is
appropriate where the movant shows entitlement to relief under at least one of the
mistake, inadvertence, surprise, or excusable neglect;
newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move
for a new trial under Rule 59(b);
fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
the judgment is void,
the judgment has been satisfied . . .; or
any other reason that justifies relief.
Fed. R. Civ. P. 60(b). “[R]elief under rule 60(b)(6) remains ‘an extraordinary remedy’ for
‘exceptional circumstances.’” City of Duluth v. Fond du Lac Band of Lake Superior
Chippewa, 702 F.3d 1147, 1155 (8th Cir. 2013) (citing In re Zimmerman, 869 F.2d
1126, 1128 (8th Cir. 1989) (“Such relief is to be granted only when exceptional
circumstances prevented the moving party from seeking redress through the usual
Bremmer has not shown relief is warranted under any section of Rule 60(b). The
delay in obtaining the defendants’ itemized costs does not constitute “exceptional
The defendants notified Bremmer’s counsel of their intent to seek
costs once Bremmer refiled his claim. See Filing No. 108-4 Ex. 4 - January Emails.
Following such notice, Bremmer delayed his motion until March 11, 2014. Bremmer
has offered no justification under Rule 60(b) warranting disregard of the court’s
dismissal order requiring him to pay the defendants’ costs upon refiling his claims.
Because the court denies Bremmer’s motion to rejoin this matter, the court need not
address the reasonableness of the defendants’ costs.
Defendants’ Motion to Strike and Plaintiff’s Motion to Continue and Extend
The defendants seek to strike the plaintiff’s designation of expert witnesses for
failure to comply with Federal Rule of Civil Procedure 26 and the Amended Order
Setting Final Schedule for Progression of Case.
See Filing No. 89 - Motion. The
defendants argue the plaintiff failed to comply with Rule 26’s clear requirements by
failing to provide expert opinion reports. See Filing No. 90 - Brief. The defendants
contend the plaintiff merely provided the experts’ names and resumes.
defendants also argue the plaintiff, by failing to disclose expert reports, have prejudiced
the defendants’ ability to properly prepare for depositions of the newly designated
experts. Id. Lastly, the defendants assert the plaintiff’s loss of earning expert, Mr.
Stricklett, is not a proper rebuttal witness because neither of the defendants’ witnesses
opine about loss of earnings. Id.
The plaintiff argues Bremmer’s continuing medical treatment and damages
prevented the plaintiff from obtaining expert reports. See Filing No. 96 - Response.
The plaintiff represents Bremmer only recently reached maximum medical improvement
and now experts can be retained to provide a loss of earnings opinion. Id. The plaintiff
represents Mr. Stricklett’s report is expected to be prepared in the middle of April 2014.
Id. The plaintiff also argues the defendants have indicated they will dispute the causal
relation of Bremmer’s medical treatment and therefore, the plaintiffs are required to
obtain expert reports to show causation. Id. For these reasons and because Bremmer
is seeking to rejoin this case, and the defendants have not identified a corporate
representative, the plaintiff filed the Motion to Continue and Extend Deadlines. See
Filing No. 97 - Motion; Filing No. 98 - Brief.
In reply to the plaintiff’s response to the motion to strike, the defendants argue
the plaintiff does not dispute the expert disclosures completely fail to comply with Rule
26 and the court’s progression order. See Filing No. 109 - Reply and Response p. 1-9.
The defendants argue the plaintiff instead attempts to justify its failure on the erroneous
basis Bremmer’s medical condition prevented the plaintiff from complying with the rule
and that the plaintiff was recently made aware the defendants contest causation. Id.
The defendants assert the plaintiff’s representation Bremmer recently obtained
maximum medical improvement is a misrepresentation to the court because Bremmer
reached maximum medical improvement for his shoulder by July 3, 2013, and for his
spine by September 27, 2012. Id. The defendants also argue the plaintiff has been
aware the defendants contest causation since the defendants filed their answer and the
parties filed their Rule 26(f) report, thus there is no basis for the plaintiff to contend the
defendants’ dispute of causation justifies an extension of the deadlines. Id.
In response to the plaintiff’s motion for an extension of deadlines, the defendants
argue the plaintiff fails to show the requested extension is justified by good cause or
excusable neglect. Id. at 9-11. The defendants reiterate the plaintiff has been aware
the defendants contest causation and Bremmer achieved maximum medical
improvement more than eight months ago.
The defendants argue the plaintiff
should not be allowed to consume and waste anymore of the defendants’ and the
court’s time and resources. Id.
In reply, the plaintiff argues the defendants would benefit from an extension as
the defendants are in the process of setting depositions and the defendants have failed
to articulate any prejudice suffered from an extension. See Filing No. 111 - Reply. The
plaintiff argues “additional disputes on the workers’ compensation claim have delayed
the appointment of a vocational expert under Neb. Rev. State. [sic] 48-162.01 until
recently.” Id. The plaintiff also contends the defendants assertion the plaintiff had fair
notice the defendants contested causation is disingenuous because the defendants’
pleading was “simply a general denial to virtually every aspect.” Id. The plaintiff argues
the defendants are now asserting Bremmer’s injuries result from a pre-existing condition
and not due to Bremmer’s fall. Id. The plaintiff asserts if a continuance is not granted
the plaintiff will need to dismiss without prejudice and refile. Id.
Under Federal Rule of Civil Procedure 26(a)(2)(B),
Unless otherwise stipulated or ordered by the court, this
disclosure must be accompanied by a written report-prepared and signed by the witness--if the witness is one
retained or specially employed to provide expert testimony in
the case or one whose duties as the party's employee
regularly involve giving expert testimony. The report must
(i) a complete statement of all opinions the
witness will express and the basis and reasons
(ii) the facts or data considered by the witness
in forming them;
(iii) any exhibits that will be used to summarize
or support them;
(iv) the witness's qualifications, including a list
of all publications authored in the previous 10
(v) a list of all other cases in which, during the
previous 4 years, the witness testified as an
expert at trial or by deposition; and
(vi) a statement of the compensation to be paid
for the study and testimony in the case.
Fed. R. Civ. P. 26(a)(2)(B). “If a party fails to provide information or identify a witness
as required by Rule 26(a) or (e), the party is not allowed to use that information or
witness to supply evidence . . . at a trial, unless the failure was substantially justified or
is harmless.” Fed. R. Civ. P. 37(c)(1).
Regardless of whether the plaintiff is entitled to a rebuttal expert on the topic of
loss of earnings, the plaintiff failed to comply with Rule 26(a)(2) requirements. The
plaintiff provided only the names and resumes for these proposed experts. The plaintiff
has not established the disclosure was sufficient under Rule 26 or the court’s
progression order. In fact, the plaintiff indicates only one of the experts will have a
report prepared by the middle of April 2014. Additionally, the plaintiff failed to explain
how its failure to comply with Rule 26(a) is substantially justified or harmless.
Accordingly, the experts are stricken due to a deficient disclosure.
Regarding the plaintiff’s motion to extend deadlines, “[a] schedul[ing order] may
be modified only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4).
The plaintiff has not demonstrated good cause for an extension. The plaintiff fails to
explain how the underlying workers compensation claim prevented the plaintiff from
seeking an extension earlier or how it precluded the plaintiff from obtaining experts.
Additionally, the plaintiff’s assertion the extension is necessary because Bremmer only
recently achieved maximum medical improvement is unpersuasive.
Bremmer’s doctors, Bremmer reached maximum medical improvement for his shoulder
by July 3, 2013, and for his spine by September 27, 2012. See Filing No. 110-2 Ex. 2 December 31, 2012, Letter and July 3, 2013, Progress Note.
Plaintiff’s Motion to Compel
The plaintiff seeks to compel the defendants to identify a corporate
See Filing No. 102 - Motion.
The plaintiff states it has made two
requests on the defendants to identify a corporate representative. See Filing No. 103 Brief; Filing No. 104-1 Exs. 1-2. The plaintiff argues the defendants have refused to
designate a representative. See Filing No. 104-1 Ex. 3 - Defendants’ April 3, 2014,
Letter. The plaintiff requests an award of fees for filing this motion. See Filing No. 103 Brief.
The defendants argue the plaintiff failed to comply with the procedure set forth in
Rule 30(b)(6) because the plaintiff did not provide a notice of deposition or a list of the
matters to be discussed during a deposition.
See Filing No. 112 - Brief.
defendants contend without a proper notice, the defendants cannot designate a
corporate representative. Id. The defendants also argue they should be awarded costs
for responding to this frivolous motion. Id.
Federal Rule of Civil Procedure 30(b)(6) “Notice or Subpoena Directed to an
Organization” provides, in pertinent part:
In its notice or subpoena, a party may name as the deponent
a public or private corporation . . . and must describe with
reasonable particularity the matters for examination.
The named organization must then designate one or
more officers, directors, or managing agents, or designate
other persons who consent to testify on its behalf; and it may
set out the matters on which each person designated will
testify. . . . The persons designated must testify about
information known or reasonably available to the
Fed. R. Civ. P. 30(b)(6) (emphasis added).
The plaintiff failed to comply with the notice requirements of Rule 30(b)(6).
Without a list of matters for examination, the defendants cannot designate the
appropriate corporate representative. Accordingly, the plaintiff’s motion is denied. The
court finds it is unnecessary to award the defendants costs associated with the plaintiff’s
IT IS ORDERED:
Bremmer’s Motion to Intervene; Waive or Delay order on Costs and Fees
Prior to Refiling; and Extend Case Progression Deadlines (Filing No. 82) is denied.
The defendants’ Motion to Strike (Filing No. 89) is granted.
The plaintiff’s Motion to Continue and Extend Deadlines (Filing No. 97) is
The plaintiff’s Motion to Compel (Filing No. 102) is denied.
Dated this 21st day of April, 2014.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge
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