Lueders v. Arp et al
Filing
19
MEMORANDUM AND ORDER - The defendants' motion to dismiss or for summary judgment (filing 12 ) is granted in part and in part denied. Defendants Aaron Arp and the Army National Guard are terminated as parties. This matter is referred to the Magistrate Judge for case progression. Ordered by Judge John M. Gerrard. (LKO)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DANIEL H. LUEDERS AND
ROSENS, INC.,1
8:17-CV-373
Plaintiffs,
vs.
MEMORANDUM AND ORDER
AARON ARP, et al.,
Defendants.
The plaintiff, Daniel Lueders, was injured when his pickup truck was
rear-ended by a National Guard tractor-trailer, and he has sued the driver,
the National Guard, and the United States for damages arising from the
driver's alleged negligence. The defendants move for dismissal or summary
judgment, arguing that Lueders is estopped from claiming that his injuries
were caused by that accident because he testified, in a separate case, that his
injuries were actually caused by a previous accident.
Lueders agrees that the driver and the National Guard should be
dismissed, because the only proper defendant is the United States. So, the
motion to dismiss will be granted to that extent. But the estoppel doctrines
relied upon by the United States do not apply here to bar Lueders' claim, so
the balance of the defendants' motion will be denied.
1
Rosens, Inc. has paid workers' compensation benefits to the plaintiff, and is a party only to
preserve its subrogation interest pursuant to Neb. Rev. Stat. § 48-118. Filing 1 at 2.
I. BACKGROUND
Lueders was in two different traffic accidents, both of which are
relevant here: a March 4, 2011 collision with a truck belonging to Leavitts
Freight Service (the "Leavitts accident"), and the July 15, 2012 collision with
the National Guard truck (the "National Guard accident"). Filing 15 at 2-3.2
He lodged a tort claim with the National Guard on March 3, 2014. Filing 13-2
at 4-5. And he sued Leavitts and Leavitts' driver in state court on April 21,
2014, claiming personal injuries resulting from the Leavitts accident,
including a significant injury to his right shoulder. Filing 13-1 at 4.
Lueders was deposed in the Leavitts case. Filing 15 at 3. He testified
that he did not believe his shoulder injury had been exacerbated by the
National Guard accident. Filing 13-2 at 20-22. And, he said, if he filed suit
based on the National Guard accident, he did not intend to claim any
additional injury to his shoulder. Filing 13-2 at 20. Lueders eventually
settled the Leavitts litigation. Filing 13-2 at 2. The parties filed a joint
stipulation for dismissal, filing 13-1 at 7, and the state court dismissed
Lueders' claims with prejudice, filing 13-1 at 10.
In the meantime, Lueders had lodged an amended tort claim with the
National Guard, claiming an additional shoulder injury. Filing 13-2 at 41-42.
This litigation followed, pursuant to the Federal Tort Claims Act (FTCA), 28
U.S.C. §§ 1346 & 2671 et seq. Filing 1.
2
Pursuant to NECivR 56.1, a party moving for summary judgment must include in its brief
a statement of material facts about which the movant contends there is no dispute, and the
party opposing summary judgment must include in its brief a concise response to that
statement of facts, noting any disagreement. Properly referenced material facts in the
movant's statement are considered admitted unless controverted in the opposing party's
response. NECivR 56.1(b)(1).
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II. STANDARD OF REVIEW
The defendants move to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) or,
in the alternative, for summary judgment pursuant to Fed. R. Civ. P. 56. See
filing 12. If, on a motion under Rule 12(b)(6), matters outside the pleadings
are presented to and not excluded by the court, the motion must be treated as
one for summary judgment under Rule 56, and all parties must be given a
reasonable opportunity to present all the material that is pertinent to the
motion. Rule 12(d).
When a motion to dismiss is converted into a motion for summary
judgment, a party against whom this procedure is used is normally entitled
to notice that conversion is occurring. Barron ex rel. D.B. v. S. Dakota Bd. of
Regents, 655 F.3d 787, 791 (8th Cir. 2011). But where the movant designates
its motion to dismiss alternatively as a motion for summary judgment, and
the nonmovant submits materials outside the pleadings, a district court is
not required to give formal notice that it will treat a motion as one for
summary judgment. Hearing v. Minnesota Life Ins. Co., 793 F.3d 888, 893
(8th Cir. 2015). And that's what happened here: the defendants have moved
for dismissal or summary judgment, submitting evidence in support of their
motion, and Lueders has both addressed the summary judgment standard
and presented evidence in opposition to the motion. See filing 17 at 8-18.
Under such circumstances, treating the motion as one for summary judgment
is appropriate. See George v. City of St. Louis, 26 F.3d 55, 57 (8th Cir. 1994).
Summary judgment is proper if the movant shows that there is no
genuine dispute as to any material fact and that the movant is entitled to
judgment as a matter of law. See Rule 56(a). The movant bears the initial
responsibility of informing the Court of the basis for the motion, and must
identify those portions of the record which the movant believes demonstrate
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the absence of a genuine issue of material fact. Torgerson v. City of Rochester,
643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the movant does so, the
nonmovant must respond by submitting evidentiary materials that set out
specific facts showing that there is a genuine issue for trial. Id.
On a motion for summary judgment, facts must be viewed in the light
most favorable to the nonmoving party only if there is a genuine dispute as to
those facts. Id. Credibility determinations, the weighing of the evidence, and
the drawing of legitimate inferences from the evidence are jury functions, not
those of a judge. Id. But the nonmovant must do more than simply show that
there is some metaphysical doubt as to the material facts. Id. In order to
show that disputed facts are material, the party opposing summary judgment
must cite to the relevant substantive law in identifying facts that might
affect the outcome of the suit. Quinn v. St. Louis County, 653 F.3d 745, 751
(8th Cir. 2011). The mere existence of a scintilla of evidence in support of the
nonmovant's position will be insufficient; there must be evidence on which
the jury could conceivably find for the nonmovant. Barber v. C1 Truck Driver
Training, LLC, 656 F.3d 782, 791-92 (8th Cir. 2011). Where the record taken
as a whole could not lead a rational trier of fact to find for the nonmoving
party, there is no genuine issue for trial. Torgerson, 643 F.3d at 1042.
III. DISCUSSION
The primary issue presented by the defendants' motion is whether
Lueders is estopped from asserting his claim. But there are some preliminary
matters to address.
1. SUBSTITUTION OF PARTIES
First, the parties: Lueders' complaint asserts a negligence claim
against the United States, the "Army National Guard," and the National
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Guard's truck driver. Filing 1. But when someone is injured by a tort
committed by an employee of the United States who is acting within the
scope of his employment, that employee cannot be sued—rather, the injured
person must sue the United States, which is liable in its employee's stead.
Knowles v. United States, 91 F.3d 1147, 1150 (8th Cir. 1996); see United
States v. Smith, 499 U.S. 160, 161-62 (1991); see also Simmons v.
Himmelreich, 136 S. Ct. 1843, 1850 (2016).
And the truck driver was an employee of the United States acting
within the scope of his employment when the National Guard accident
occurred. Filing 13-3. Similarly, the "Army National Guard"—that is, the
National Guard of the United States—is a component of the Army of the
United States. Perpich v. U.S. Dep't of Def., 880 F.2d 11, 14 (8th Cir. 1989),
aff'd, 496 U.S. 334 (1990). As such, it cannot be sued directly either. See
F.D.I.C. v. Meyer, 510 U.S. 471, 484-86 (1994).
Lueders does not oppose dismissing the driver and the National Guard
as parties. Filing 17 at 2. Accordingly, they will be dismissed as defendants.
2. EVIDENTIARY ISSUES
In response to the United States' motion, Lueders asserts several
evidentiary objections. See Rule 56(c)(2). First, Lueders objects to the United
States' evidence that Lueders settled the Leavitts case. Filing 17 at 5-6. This
evidence, Lueders claims, is precluded by Fed. R. Evid. 408, which provides
that evidence of conduct during settlement negotiations generally is
inadmissible to prove a party's liability for the underlying claim. See B & B
Hardware, Inc. v. Fastenal Co., 688 F.3d 917, 920 (8th Cir. 2012).
But evidence of settlement may be admitted when the evidence is
offered for another purpose. Rule 408(b); see B & B Hardware, Inc., 688 F.3d
at 920. And Rule 408 does not require the exclusion of evidence regarding the
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settlement of a claim different from the one litigated. Dahlgren v. First Nat.
Bank of Holdrege, 533 F.3d 681, 699-700 (8th Cir. 2008). So, Rule 408 does
not bar evidence of the Leavitts settlement. And the Court does not read the
United States' reference to settlement discussions involving the National
Guard accident as being offered to prove or disprove a disputed claim or to
impeach—rather, the Court reads those references as simply providing
context for the United States' limited participation in the Leavitts
negotiation. See filing 13-2 at 2. And that is the only purpose for which the
Court has put that evidence to use.3
Lueders also claims that the United States' evidence that the Leavitts
case was settled is inadmissible hearsay. But of course, the standard is not
whether the evidence at the summary judgment stage would be admissible at
trial—it is whether it could be presented at trial in an admissible form. See
Rule 56(c)(2); Gannon Int'l, Ltd. v. Blocker, 684 F.3d 785, 793 (8th Cir. 2012).
It is not hard to imagine the forms such evidence could take at trial (if this
issue was somehow to be contested at trial, which seems unlikely). In any
event, the Court does not need hearsay from an Army lawyer to conclude that
the Leavitts case was settled—Lueders does not object to the actual court
documents that disposed of the case, and the Court has no doubt about what
it means when the parties stipulate to dismissal with prejudice. See filing 131 at 7-8. The record sufficiently establishes the fact of settlement, even
without reliance on hearsay.
3
Lueders also invokes Fed. R. Evid. 403, which may be implicated even where Rule 408 is
not. See Dahlgren, 533 F.3d at 700. And, he argues, the evidence is irrelevant. Filing 17 at
5-6. But the Court finds that the evidence has probative value, and that there is little
chance of unfair prejudice, where it is (1) offered with respect to the United States' estoppel
claims and (2) presented to the undersigned, who is well aware of the limited but proper
purpose for which the evidence has been adduced.
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Accordingly, Lueders' evidentiary objections are overruled.
3. ESTOPPEL
That brings the Court to the merits of the United States' motion: the
United States argues that Lueders is estopped from claiming he was injured
in the National Guard accident because he previously testified that his
injuries were caused by the Leavitts accident. The United States relies on
two related but distinct doctrines: judicial estoppel and quasi-estoppel.
But that raises another foundational question: is the application of
those doctrines in this case controlled by federal or state law? The Court finds
that Nebraska law is controlling, for two reasons. First, under the FTCA, the
United States' liability is determined by "the law of the place where the act or
omission occurred." § 1346(b)(1); see Molzof v. United States, 502 U.S. 301,
305 (1992). That includes "the entire law of the place where the act or
omission occurred." Loge v. United States, 662 F.2d 1268, 1273 (8th Cir.
1981). And second, even under the more familiar principles used in diversity
cases, the estoppel doctrines asserted by the United States arise under state
substantive law. See Spencer v. Annett Holdings, Inc., 757 F.3d 790, 797-98
(8th Cir. 2014); Monterey Dev. Corp. v. Lawyer's Title Ins. Corp., 4 F.3d 605,
608-09 (8th Cir. 1993); see also IHFC Properties, LLC v. Whalen Furniture
Mfg., Inc., 614 F. App'x 623, 625 (4th Cir. 2015); Farkas v. GMAC Mortg.,
L.L.C., 737 F.3d 338, 343–44 (5th Cir. 2013); cf. Guaranty Trust Co. v. N.Y. v.
York, 326 U.S. 99, 108-09 (1945).
(a) Judicial Estoppel
Judicial estoppel is an equitable doctrine that a court invokes at its
discretion to protect the integrity of the judicial process. Hike v. State Dep't of
Roads, 899 N.W.2d 614, 620 (Neb. 2017). The doctrine of judicial estoppel
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protects the integrity of the judicial process by preventing a party from
taking a position inconsistent with one successfully and unequivocally
asserted by the same party in a prior proceeding. Id. Fundamentally, the
intent behind the doctrine of judicial estoppel is to prevent parties from
gaining an advantage by taking one position in a proceeding and then
switching to a different position when convenient in a later proceeding. Id.
But bad faith or an actual intent to mislead on the part of the party asserting
inconsistent positions must be demonstrated before the judicial estoppel
doctrine may be invoked. Id.
Judicial estoppel is inapplicable here for two reasons. First, while
inconsistent claims against different parties may be barred by the doctrine of
judicial estoppel, the "requirement that the position be successfully asserted
means that the party must have been successful in getting the first court to
accept the position," and without such acceptance, the doctrine of judicial
estoppel does not apply. Vowers & Sons, Inc. v. Strasheim, 576 N.W.2d 817,
824 (Neb. 1998). And here, the Leavitts case was dismissed with prejudice
after the parties settled—so, there is no indication of any judicial acceptance
of Lueders' claim or the extent to which his injuries were caused exclusively
by the Leavitts accident. See id.; see also Shriner v. Friedman Law Offices,
P.C., L.L.O., 877 N.W.2d 272, 287 (Neb. Ct. App. 2016). Accordingly, the
Leavitts case and its settlement do not operate to bar this case under the
doctrine of judicial estoppel. See Vowers & Sons, Inc., 576 N.W.2d at 824.
Second, the record presently before the Court does not conclusively
demonstrate bad faith or an actual intent to mislead on Lueders' part. The
doctrine of judicial estoppel is to be applied with caution so as to avoid
impinging on the truth-seeking function of the court, because the doctrine
precludes a contradictory position without examining the truth of either
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statement. Cleaver-Brooks, Inc. v. Twin City Fire Ins. Co., 865 N.W.2d 105,
114 (Neb. 2015). And even based on the limited evidence before the Court, it
is clear that when Lueders testified in the Leavitts case, there was a
substantial disagreement—even among Lueders' own physicians—about the
extent to which his injuries were caused by the Leavitts accident or the
National Guard accident. See filing 13-2 at 20-22.
Now, that evidence might be consistent with "playing fast and loose
with the courts" in the Leavitts case and this one. See Cleaver-Brooks, Inc.,
865 N.W.2d at 114. But it is also consistent with a plaintiff deciding, during
the course of medical evaluation and discovery, that perhaps the causation of
his injuries was more complicated than he thought. And it is also consistent
with a relatively unsophisticated plaintiff who might not have been able to
describe the nuances of the medical evidence with complete accuracy during
his deposition.4 And Lueders' affidavit in this case reflects that: he avers that
at the time of his deposition in the Leavitts case, his medical treatment was
incomplete, and his understanding of the available medical evidence was also
incomplete. Filing 17-2. But it is enough for now to say that the Court cannot
conclude, based on deposition excerpts, and on summary judgment, that
Lueders acted in bad faith or with an intent to mislead.
Accordingly, the doctrine of judicial estoppel is inapplicable here.
(b) Quasi-Estoppel
The United States also relies on the doctrine of quasi-estoppel. That
doctrine "has its basis in election, ratification, affirmance, acquiescence, or
4
For instance, when asked about his doctor's treatment note of "worsening osteoarthritis in
the right shoulder," Lueders replied, "I have no idea what that means. The thing is, if I
can't spell it, I don't . . . know the word." Filing 13-2 at 20.
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acceptance of benefits, and the principle precludes a party from asserting, to
another's disadvantage, a right inconsistent with a position previously taken
by him." Application of Burt Cty. Pub. Power Dist., 77 N.W.2d 773, 780 (Neb.
1956). It applies where it would be unconscionable to allow a person to
maintain a position inconsistent with one in which he acquiesced, or of which
he accepted a benefit. Id.
But the Court also finds that doctrine inapplicable, for three reasons.
First, while judicial estoppel may be invoked by strangers to the record in a
former proceeding, quasi-estoppel is generally held to arise only in favor of
parties to the first suit and those in privity with them. Swilley v. McCain,
374 S.W.2d 871, 875-76 (Tex. 1964); see Beavers v. Victorian, 38 F. Supp. 3d
1260, 1266 (W.D. Okla. 2014); Whitacre P'ship v. Biosignia, Inc., 591 S.E.2d
870, 882 (N.C. 2004); see also Bailey v. Duling, 827 N.W.2d 351, 362 (S.D.
2013). Obviously, no such mutuality of parties is present here.
Second, as with judicial estoppel, quasi-estoppel can be asserted only
against one who "has previously taken an inconsistent position, with
knowledge of the facts and his rights, to the detriment of the person seeking
application of the doctrine." Erie Telecommunications, Inc. v. City of Erie, 659
F. Supp. 580, 586 (W.D. Pa. 1987). And as explained above, it is far from clear
that Lueders testified in the Leavitts case with full knowledge of his medical
condition. Under those conditions, failing to acknowledge the possibility that
his injuries may have been caused in part by the National Guard accident
does not render "unconscionable" a later argument that they were. See John's
Heating Serv. v. Lamb, 46 P.3d 1024, 1040-41 (Alaska 2002).
And finally, quasi-estoppel is based on acceptance of benefits—a
principle that does not work an estoppel where the benefits previously
accepted were not inconsistent with the right now being asserted. Cf. Liming
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v. Liming, 723 N.W.2d 89, 94 (Neb. 2006). And Lueders' evidence is that he
suffered a shoulder injury in the Leavitts accident that required surgery and
caused, among other things, a permanent partial impairment of his right
upper extremity. Filing 17-3 at 4; filing 17-4 at 1. The National Guard
accident permanently aggravated his shoulder condition and increased pain,
requiring a second surgery—but, the National Guard accident did not add to
Lueders' permanent partial impairment. Filing 17-3 at 4; filing 17-4 at 1-2.
Assuming that evidence to be true for purposes of summary judgment, there
is nothing inconsistent about suing and accepting a settlement in the
Leavitts case and subsequently pursuing additional damages, for additional
injuries, from the United States.
Accordingly, the Court finds that the doctrine of quasi-estoppel is also
inapplicable here.
IV. CONCLUSION
For the foregoing reasons, the Court finds that the United States is the
only proper defendant, but that Lueders is not estopped from asserting his
claim against the United States.
IT IS ORDERED:
1.
The defendants' motion to dismiss or for summary
judgment (filing 12) is granted in part and in part denied.
2.
Defendants Aaron Arp and the Army National Guard are
terminated as parties.
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3.
This matter is referred to the Magistrate Judge for case
progression.
Dated this 30th day of March, 2018.
BY THE COURT:
John M. Gerrard
United States District Judge
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