Bremmer et al v. Appleton Electric, LLC et al

Filing 187

ORDER granting Emerson's 150 Motion for Leave and Motion for Summary Judgment [150-1]. WCI's Motion to Strike 156 is denied. WCI's claims against Emerson are dismissed. Ordered by Magistrate Judge Thomas D. Thalken. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
WASTE CONNECTIONS, INC.,
Plaintiff,

8:12CV436

vs.
ORDER
APPLETON ELECTRIC, LLC and
EMERSON ELECTRIC, LLC,
Defendants.
This matter is before the court on the defendant’s, Emerson Electric, LLC (Emerson),
Motion for Summary Judgment.

See Filing No. 150-1 - Motion for Summary Judgment.

Emerson filed a brief (Filing No. 150-2) in support of the motion. In response, the plaintiff,
Waste Connections, Inc. (WCI), filed a Motion to Strike Emerson’s summary judgment motion.
See Filing No. 156 - Motion to Strike. WCI also filed a brief (Filing No. 176) and index of
evidence (Filing No. 177) in opposition.
FACTS
WCI’s action arises from an injury Rick Bremmer (Bremmer) sustained on the defendant
Appleton Electric, LLC’s (Appleton) premises (Appleton Facility).

See Filing No. 1-1 -

Complaint. On May 25, 2011, Bremmer was at the Appleton Facility to deliver an order for WCI
when Bremmer fell into an open pit approximately twenty feet by twenty feet wide and five feet
deep and allegedly sustained a torn rotator cuff and herniated disc.

Id. ¶¶ 9-13, 18-19.

Generally, WCI alleges the defendants’ negligence caused Bremmer’s injuries. Id. ¶¶ 18-21.
The defendants generally deny the plaintiff’s allegations and assert several affirmative
defenses. See Filing No. 1-1 - Answer ¶¶ 3-4.
The defendants provided the following information in their corporate disclosure
statement:
Appleton Electric LLC is a wholly owned subsidiary of EGS
Electrical Group, LLC. . . . Apple JV Holding Corp. owns 55.5% of
EGS Electrical Group, LLC and SPX Corporation owns the
remaining 44.5%. . . . Apple JV Holding Corp. is a wholly owned
subsidiary of EECO, Inc. . . . EECO, Inc. is a wholly owned
subsidiary of Emerson Electric Co.
See Filing No. 10 - Corporate Disclosure Statement.

On April 7, 2014, the defendants

responded to WCI’s request for admission and admitted Appleton owned the facility where

Bremmer allegedly sustained his injuries. See Filing No. 132-2 - Response. In the Order on
Final Pretrial Conference, the parties stipulated Appleton owned and operated the Appleton
Facility. See Filing No. 139 - Order on Final Pretrial Conference.

STANDARD OF REVIEW
Pursuant to the Federal Rules of Civil Procedure, summary judgment is appropriate
when, viewing the facts and inferences in the light most favorable to the nonmoving party, “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. P. 56(a); see Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th
Cir. 2011).

When making this determination, a court’s function is not to make credibility

determinations and weigh evidence, or to attempt to determine the truth of the matter; instead, a
court must “determine whether there is a genuine issue for trial.” Schilf v. Eli Lilly & Co., 687
F.3d 947, 949 (8th Cir. 2012). A court must “look to the substantive law to determine whether
an element is essential to a case.” Chambers v. Metro. Prop. & Cas. Ins. Co., 351 F.3d 848,
853 (8th Cir. 2003). Additionally, “[o]nly disputes over facts that might affect the outcome of the
suit under the governing law will properly preclude the entry of summary judgment.” Hervey v.
County of Koochiching, 527 F.3d 711, 719 (8th Cir. 2008). “One of the principal purposes of
the summary judgment rule is to isolate and dispose of factually unsupported claims or
defenses, and [the rule] should be interpreted in a way that allows it to accomplish this
purpose.” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
A party seeking summary judgment “bears the initial responsibility of informing the
district court of the basis for its motion, and must identify those portions of [the record] . . . which
it believes demonstrate the absence of a genuine issue of material fact.” Torgerson, 643 F.3d
at 1042 (alteration in original). Specifically, the moving party “must show that ‘there is an
absence of evidence to support the nonmoving party’s case.’” Nitro Distrib., Inc. v. Alitcor,
Inc., 565 F.3d 417, 427 (8th Cir. 2009) (quoting Celotex, 477 U.S. at 325). In the face of a
properly supported motion, the burden shifts to the nonmoving party to “respond by submitting
evidentiary materials that set out specific facts showing that there is a genuine issue for trial.”
Torgerson, 643 F.3d at 1042. “The mere existence of a scintilla of evidence in support of the
[nonmoving party’s] position will be insufficient; there must be evidence on which the jury could
reasonably find for the [nonmoving party].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
252 (1986).
If opposing parties tell two different stories, the court must review
the record, determine which facts are material and genuinely
disputed, and then view those facts in a light most favorable to the
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non-moving party-as long as those facts are not so blatantly
contradicted by the record . . . that no reasonable jury could
believe them. A plaintiff may not merely point to unsupported selfserving allegations, but must substantiate his allegations with
sufficient probative evidence that would permit a finding in his
favor . . . without resort to speculation, conjecture, or fantasy[.]
Reed v. City of St. Charles, Mo., 561 F.3d 788, 790-91 (8th Cir. 2009) (internal quotations and
citations omitted). “Although a district court must rule on a motion for summary judgment after
viewing the facts in the light most favorable to the non-moving party, it is not required to accept
unreasonable inferences or sheer speculation as fact.” Id. at 791 (internal quotation omitted).
ANALYSIS
Emerson seeks dismissal from this action because Emerson does not own or operate
the Appleton Facility where Bremmer allegedly sustained his injuries. See Filing No. 150-2 Brief.

Emerson argues the plaintiff inexplicably refuses to dismiss Emerson despite the fact

that: 1) Emerson and Appleton admitted in their responsive pleadings that Appleton owned and
operated the Appleton Facility; 2) Emerson and Appleton have stated in responses to requests
for admission that Appleton owned and operated the Appleton Facility; and 3) all parties have
stipulated in the Order on Final Pretrial Conference that Appleton owned and operated the
Appleton Facility. Id. Emerson argues no evidence exists to show Emerson is a proper party to
this action. Id.
In response, WCI’s challenges Emerson’s motion procedurally and on the merits. WCI
moves to strike Emerson’s summary judgment motion because the motion is untimely under
Fed. R. Civ. P. 56(b). See Filing No. 156 - Motion to Strike; Filing No. 176 - Brief. WCI also
argues Emerson admitted through its corporate disclosure that it is a parent company of
Appleton and admitted pursuant to the requests for admission that the defendants owned and
operated the facility Bremmer sustained his injury. See Filing No. 176 - Brief. Moreover, WCI
contends the defendants resisted every attempt by WCI’s counsel to depose a corporate
representative that may have resolved this issue. Id.
The court realizes Emerson filed the summary judgment motion out of time; however,
the court granted Emerson leave to file the motion after Emerson set forth its basis for such
leave.

Accordingly, WCI’s Motion to Strike is denied.

Additionally, the court previously

addressed, and disregarded, WCI’s arguments the defendants failed to designate a corporate
representative or that the defendants admitted the requests for admission. See Filing No. 129 -

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Order (holding WCI failed to comply with the notice requirements of Rule 30(b)(6)); Filing No.
169 - Order (denying WCI’s attempt to have the requests for admission deemed admitted).
WCI has not presented any evidence Emerson is properly named a defendant in this
action. The fact Emerson’s wholly owned subsidiary owns 55.5 percent of the company who
owns Appleton does not establish Emerson as a proper party. See Filing No. 10 - Corporate
Disclosure Statement. To establish a claim for negligence, WCI must prove Emerson owed a
duty to Bremmer, Emerson breached that duty, and Bremmer sustained damages that were
proximately caused by Emerson’s breach. See Blaser v. Cnty. of Madison, 826 N.W.2d 554,
563 (Neb. 2013). Owners or occupiers of a property have a duty to protect lawful visitors from
conditions on the property. Aguallo v. City of Scottsbluff, 678 N.W.2d 82, 89 (Neb. 2004);
Kliewer v. Wall Const. Co., 429 N.W.2d 373, 377-78 (Neb. 1988). In light of Appleton’s
admission it owned the facility where Bremmer allegedly sustained his injuries and the lack of
evidence Emerson owned the facility, Emerson’s summary judgment motion is granted. WCI’s
claims, if any, against Emerson are dismissed.

IT IS ORDERED:
1.

Emerson’s Motion for Leave (Filing No. 150) and Motion for Summary Judgment

(Filing No. 150-1) are granted.
2.

WCI’s Motion to Strike (Filing No. 156) is denied.

3.

WCI’s claims against Emerson are dismissed.

Dated this 8th day of May, 2014.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

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