Fergin v. Westrock Company et al
ORDER that Defendant Westrock Company's Motion to Compel and Motion for Sanctions Against Magnum Dedicated, Inc. (Filing No. 110 ) is granted. Defendant XPO's Motion to Compel Magnum LTL, Inc. and Mangum Dedicated, Inc.'s Discover y Responses (Filing No. 112 ) is granted. The Magnum defendants shall supplement its responses to each discovery request set forth above, on or before December 15, 2017. Magnum Dedicated shall have until December 20, 2017, to show cause why sanctions, including the award of attorneys' fees incurred by Westrock and XPO under Rule 37, should not be imposed. Ordered by Magistrate Judge Michael D. Nelson. (LAC)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MICHAEL FERGIN, and ACE AMERICAN
WESTROCK COMPANY f/k/a ROCKTENN;
MAGNUM LTL, INC.; XPO f/k/a/
JACOBSON WAREHOUSE COMPANY,
INC.; and MAGNUM DEDICATED, INC.,
This matter is before the Court on the Motion to Compel and Motion for Sanctions
Against Magnum Dedicated, Inc. (Filing No. 110) filed by Defendant Westrock Company, and
the Motion to Compel Magnum LTL, Inc. and Mangum Dedicated, Inc.’s Discovery Responses
(Filing No. 112) filed by Defendant XPO. Magnum Dedicated filed a brief (Filing No. 113)
opposing Westrock’s motion, and both Magnum Dedicated and Magnum LTL filed a brief
(Filing No. 116) opposing XPO’s motion.
Neither party strictly complied with the Civil Rules of the United States District Court for
the District of Nebraska when filing their motions. Defendant XPO did not file a brief with its
See NECivR 7.1(a)(1)(A)(“A motion raising a substantial issue of law must be
supported by a brief filed and served together with the motion. . . . [F]ailure to brief an issue
raised in a motion may be considered a waiver of that issue.”). Defendant XPO attached its
evidentiary materials to its motion, rather than attaching it to its brief or as a separate filing.
Neither party provided a separate index identifying each item nor provided an affidavit
7.1(a)(2)(B)(“Evidentiary materials may be attached to the brief if the brief includes a listing of
each item of evidence being filed, and the evidence citations within the brief provide hyperlinks
to the evidence attached and offered in support of the factual statements. In all other cases,
evidentiary materials may not be attached to the brief but rather must be filed separately with an
index listing each item of evidence being filed and identifying the motion to which it relates.”);
and NECivR 7.1(a)(2)(C)(“An affidavit must identify and authenticate any documents offered as
evidence.”). Finally, XPO was not permitted to file its reply brief without leave of court. See
NECivR 7.1(c)(“If the moving party does not file an initial brief, it may not file a reply brief
without the court’s leave.”).
“[A] party who does not follow this rule may be considered to have abandoned in whole
or in part that party’s position on the pending motion.” NECivR 7.1. Despite the parties’
noncompliance with the local rules, the documents before the Court are sufficient to issue
informed rulings on the pending discovery motions, which were both substantively responded to
by the Magnum defendants. Therefore, the Court will not consider the parties’ positions on their
pending motions abandoned. However, the Court cautions the parties to carefully review and
comply with NECivR 7.1, and any other applicable local rules, when filing future motions.
Plaintiffs, Michael Fergin and Ace American Insurance Co.1, filed the instant action to
recover damages for a shoulder injury Fergin sustained in the course and scope of his
employment with Becton Dickinson on February 19, 2013. Plaintiffs allege that, as Fergin was
unloading pallets of corrugated cardboard from a semitrailer delivered and operated by the
Magnum defendants,2 corrugated cardboard fell on him when he opened the left door of the
trailer. (Filing No. 64). Becton Dickinson allegedly provided Defendant Westrock with the
pallets on which to stack the corrugated cardboard for transportation, and Westrock contracted
with Defendant XPO to store the pallets and load them onto semitrailers. Westrock alleges it
contracted with Defendant Magnum Dedicated to transport the pallets. (Filing No. 68).
Plaintiffs allege Fergin’s injury was caused by the collective Defendants’ negligence in
(1) failing to inspect the pallets used to stack the corrugated paper; (2) employing a damaged
pallet to stack the corrugated paper; (3) placing a “wobbly, unstable stack of corrugated box
making material” on the damaged pallet in the rear of the trailer and; (4) in failing to “strap or
otherwise secure” the stack of corrugated paper “to keep it from shifting and toppling.” (Filing
No. 64 at p. 3). Westrock filed crossclaims against Magnum Dedicated and XPO for
Ace American is named as a plaintiff for subrogation purposes pursuant to Neb. Rev. Stat § 48-118.
Plaintiffs’ allege Magnum Dedicated and Magnum LTL share an office, officers, and directors, and thus Plaintiffs
clarify that their allegations of negligence against Magnum LTL apply in the alternative to Magnum Dedicated. (Filing
indemnification. (Filing No. 68).
Both of the instant motions relate to the Magnum defendants’ responses and objections to
Westrock’s and XPO’s discovery requests. Generally, the Magnum defendants’ objections are
premised on their position that Westrock and XPO’s discovery requests are not relevant because
the information sought relates to the Federal Motor Carrier Safety Regulations (“FMCSR”),
which do not create a legal duty in this action.
Westrock filed its motion to compel Magnum Dedicated to provide answers to its
Requests for Admission Nos. 1, 3, and 4; to produce documents responsive to Request for
Production No. 14; and to supplement its answers to Interrogatory Nos. 6, 9, 10, 11, and 12.
(Filing No. 111 at pp. 2-6). XPO seeks an order compelling the Magnum defendants to produce
documents responsive to its Request for Production Nos. 4, 5, and 6. (Filing No. 112).
1. Westrock’s Discovery Requests and Magnum Dedicated’s Responses
Westrock’s disputed Requests for Admissions ask Magnum Dedicated to, “Admit that, in
February 2013, Magnum Dedicated Inc. employees were[:]” . . . “not allowed to operate a
commercial motor vehicle unless the employee had confirmed that the commercial motor
vehicle’s cargo was properly distributed and adequately secured” (Request No. 1); “required to
inspect the cargo and devices used to secure the cargo within the first fifty (50) miles after
beginning trip and cause any adjustments to be made to the cargo or load securement devices as
necessary to ensure that cargo cannot shift on or within, or fall from the commercial motor
vehicle” (Request No. 3); and “required to firmly immobilize or secure cargo on or within a
vehicle by structures of adequate strength, dunnage or dunnage bags, shoring bars, tiedowns, or a
combination of these” (Request No. 4). Magnum Dedicated objected to each request as not
relevant because each request “seeks admission employees of [Magnum] had a duty to follow a
[FMCSR] … [This section] is not relevant to this action. The [FMCSR] were not intended to
cover or create a duty in regards to accidents that occur while unloading cargo in a private
loading area[.]” (Filing No. 110-4 at pp. 1-3).
Westrock’s Request for Production No. 14 asks for “Any handbook, manuals, policies, or
other documents which state Magnum Dedicated’s policies and procedures with respect to
inspecting, loading, securing and transporting a cargo.” Magnum Dedicated objected to the
request as not relevant because the FMCSR “were not intended to cover or create a duty in
regards to accidents that occur while unloading cargo in a private loading area.” Magnum
Dedicated also objected that the request was unduly burdensome and could include attorneyclient documents.
“Subject to” and “without waiving” the objections, Magnum Dedicated
replied that it knew of no other documents responsive to the request other than the FMCSR,
which are publically available. (Filing No. 110-5 at p. 3).
Westrock also seeks supplemental answers to the following interrogatories (Filing No.
Interrogatory No. 6 asks Magnum Dedicated to identify details surrounding its
contact with the corrugated cardboard, including where Magnum Dedicated picked it
up, what employees were involved in loading and transporting the corrugated
cardboard, and whether Magnum Dedicated was involved in loading and securing the
cardboard. Magnum Dedicated objected that the interrogatory was vague or
ambiguous, and that it was not relevant because it was “based upon the contentions
Magnum Dedicated had a duty to load or secure the corrugated cardboard or the
[FMCSR] are relevant to this action.” Magnum Dedicated answered the interrogatory
“subject to” and “without waiving” the foregoing objections.
Interrogatory No. 9 asks Magnum Dedicated to identify any and all policies and
procedures for Magnum Dedicated employees in effect for February 2013 for
inspection of cargo, securing cargo for transit, and loading cargo. Magnum Dedicated
made the same relevance objection as above, but answered “subject to” and “without
waiving” its objections that it did not know of any responsive policies other than the
Interrogatory No. 10 asks Magnum Dedicated to identify any and all load securement
devices Magnum Dedicated employees used to transport corrugated cardboard to
Plaintiff’s place of employment on or about February 19, 2013. Magnum Dedicated
made the same relevance objection as above.
Interrogatory No. 11 asks Magnum Dedicated to identify any and all load securement
devices Magnum Dedicated employees had access to in February 2013 to secure cargo
for transport. Magnum Dedicated made the same relevance objection as above.
Interrogatory No. 12 asks Magnum Dedicated to identify any and all citations
received by Magnum Dedicated employees related to the failure to secure cargo from
2011 to 2015. Magnum Dedicated answered “none,” “subject to” and “without
waiving” its relevance objection.
2. XPO’s Requests and the Magnum Defendants’ Responses
XPO requests that the Magnum defendants produce “copies of any manuals, policies,
procedures or any other documents” in use on February 19, 2013, related to: the loading,
transportation, and storage of corrugated boxes (Request No. 4); safety or industry standards in
the loading, transportation, and storage of cargo (Request No. 5); and Magnum’s use of pallets in
the loading, transportation, and storage of cargo (Request No. 6). (Filing No. 112 at pp. 10-11).
As with its objections to Westrock’s discovery requests, the Magnum defendants objected to
each XPO’s above requests on grounds of relevance. Magnum maintains that the requests seek
production of documents related to the FMCSR, and because the FMCSR does not create a legal
duty in this case, the requested documents are not relevant. (Filing No. 112 at pp. 10-112).
Federal Rule of Civil Procedure 26(b)(1) sets forth the scope of discovery: “Parties may
obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or
defense and proportional to the needs of the case[.]” Fed. R. Civ. P. 26(b)(1). The Magnum
defendants suggest that the 2015 Amendments to the Federal Rule of Civil Procedure
substantively changed the scope of relevance for purposes of discovery under Rule 26(b)(1).
(Filing No. 113 at p. 2; Filing No. 116 at p. 2). Therefore, according to the Magnum defendants,
relevant discovery in this case is limited solely to the issue of whether a legal duty exists. (Filing
No. 113 at pp. 3-4; Filing No. 116 at p. 3-4). Magnum is incorrect. The 2015 Amendment
simply “restores the proportionality factors to their original place in defining the scope of
discovery,” and notes that the parties and the court should focus on the “actual claims and
defenses involved in the action.” See generally, Fed. R. Civ. P. 26(b)(1) advisory committee
note to 2015 amendment.
The Eighth Circuit Court of Appeals has explained that Rule 26(b)(1) does not give a
party “the unilateral ability to dictate the scope of discovery based on their own view of the
parties’ respective theories of the case.” Sentis Grp., Inc. v. Shell Oil Co., 763 F.3d 919, 925 (8th
Cir. 2014). “Litigation in general and discovery in particular . . . are not one sided.” Id.
Similarly, “a party cannot refuse to produce a requested document or information simply because
it is relevant to a claim or defense on which the producing party believes that it will prevail.”
Heller v. City of Dallas, 303 F.R.D. 466, 489 (N.D. Tex. 2014)(citing Third Pentacle, LLC v.
Interactive Life Forms, LLC, 2012 WL 27473, at *3 (S.D. Ohio Jan. 5, 2012) (even if a party
“presently holds a strong belief in the merits of [the party’s] litigation positions, [the party’s]
strong belief-whether ultimately justified or not-provides no basis for avoiding [the party’s]
discovery obligations created by the Federal Rules of Civil Procedure”). “[A]s long as the
parties request information or documents relevant to the claims at issue in the case, and such
requests are tendered in good faith and are not unduly burdensome, discovery shall proceed.” St.
Paul Reins. Co., Ltd. v. Commercial Fin. Corp., 198 F.R.D. 508, 511 (N.D. Iowa 2000). “Rule
26(b) . . . is widely recognized as a discovery rule which is liberal in scope and interpretation[.]”
Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992).
At this stage of the proceedings, the scope of discovery in this case is not limited to
whether a legal duty exists. The presiding district court judge will determine whether a legal
duty exists when that issue is properly raised. Rather, “[p]arties may obtain discovery regarding
any nonprivileged matter that is relevant to any party’s claim or defense[.]” Fed. R. Civ. P.
26(b)(emphasis added). Plaintiffs have raised several theories of negligence as to all defendants,
including the Magnum defendants, as stated above. Westrock and XPO’s discovery requests
generally seek information relevant to Plaintiffs’ allegations of negligence, including the
Magnum defendants’ policies and procedures related to securing and transporting cargo at the
time of Plaintiffs’ injury.
Even if the propounded discovery requests sought information related to a violation of the
FMCSR, under Nebraska law, a “violation of a safety regulation, established by a statute or
ordinance, is not negligence as a matter of law, but is evidence of negligence which may be
considered in connection with all the other evidence in the case in deciding the issue.” Grade v.
BNSF Ry. Co., 676 F.3d 680, 687 (8th Cir. 2012)(quoting Orduna v. Total Constr. Servs., Inc.,
713 N.W.2d 471, 479 (Neb. 2006). Magnum cites another case, Hoggard v. Arabi Cattle Co.,
2017 WL 2532962 (E.D. Ark. June 9, 2017), that recognizes the same proposition.
Hoggard, 2017 WL 2532962, at *2 (“[A] violation of a state statute or regulation may be
relevant evidence of whether Defendants breached a duty it may have owed the plaintiffs[.]”).
Therefore, Magnum’s objections to each of the above discovery requests are overruled.
Magnum did provide some answers and responses to interrogatories and production of
documents, “subject to” and “without waiving” its objections. Both Rule 33, which pertains to
interrogatories, and Rule 34, which pertains to requests for production of documents, require
objections to be stated with specificity. See Fed. R. Civ. P. 33(b)(4); Fed. R. Civ. P. 34(b)(2)(B)
& (C). “[S]imply stating that a response is ‘subject to’ one or more general objections does not
satisfy the ‘specificity’ requirement, because, for example, it leaves the propounding party
unclear about which of the numerous general objections is purportedly applicable as well as
whether the documents or answers provided are complete, or whether responsive documents are
being withheld.” Liguria Foods, Inc. v. Griffith Labs., Inc., 320 F.R.D. 168, 187 (N.D. Iowa
2017). “Although it is common practice for a party to respond to discovery requests subject to
and without waiving objections, such responses prevent the requesting party from knowing
whether all information has been provided.” Broom, Clarkson, Lanphier & Yamamoto v.
Kountze, 2015 WL 7302226, at *7 (D. Neb. Nov. 18, 2015)(citing Green v. Sunset Fin. Servs.,
Inc., 2012 WL 931976, at *2 (D. Neb. Mar. 20, 2012). Accordingly, the Court orders the
Magnum defendants to supplement their answers and responses to each of the above discovery
requests, without objections, to provide complete answers and responses.
Finally, Westrock requests appropriate sanctions, including reasonable attorney fees,
associated with filing the instant motion. Although XPO did not request reasonable expenses,
Rule 37 of the Federal Rules of Civil Procedure provides that if a motion to compel disclosure or
discovery is granted, “the court must, after giving an opportunity to be heard, require the party . .
. whose conduct necessitated the motion, the party or attorney advising that conduct, or both to
pay the movant’s reasonable expenses incurred in making the motion, including attorney’s fees.”
Fed. R. Civ. P. 37(a)(5)(A) (emphasis added). The Court shall, after the Magnum defendants
have an opportunity to respond, grant the moving parties’ reasonable expenses for filing the
instant motions, unless the Magnum defendants show substantial justification for the failure to
provide the requested discovery or that other circumstances make an award of expenses unjust.
See Fed. R. Civ. P. 37(a)(5).
IT IS ORDERED:
1. Defendant Westrock Company’s Motion to Compel and Motion for Sanctions Against
Magnum Dedicated, Inc. (Filing No. 110) is granted;
2. Defendant XPO’s Motion to Compel Magnum LTL, Inc. and Mangum Dedicated,
Inc.’s Discovery Responses (Filing No. 112) is granted;
3. The Magnum defendants shall supplement its responses to each discovery request set
forth above, on or before December 15, 2017; and
4. Magnum Dedicated shall have until December 20, 2017, to show cause why sanctions,
including the award of attorneys’ fees incurred by Westrock and XPO under Rule 37, should not
Dated this 1st day of December, 2017.
BY THE COURT:
s/ Michael D. Nelson
United States Magistrate Judge
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