Harris v. Velichkov

860 F.Supp.2d 970

Kena HARRIS, as administrator of the Estate of Chaungene L. Ward, deceased, and Monica Nolan, Plaintiffs,

v.Oleg VELICHKOV, et al., Defendants.

No. 8:09–CV–349.

United States District Court, D. Nebraska.

May 4, 2012.

Andrew K. Smith, Ari N. Rodopoulos, Daniel A. Thomas, Humphrey, Farrington Law Firm, Independence, MO, Charles James, II, Jock M. Smith, Cochran, Cherry Law Firm, Tuskegee, AL, Phyllis M. Gillespie, Willie E. Gary, Gary, Williams Law Firm, Stuart, FL, Russell A. Westerhold, Fraser, Stryker Law Firm, Omaha, NE, for Plaintiffs.

Stephen L. Ahl, Wolfe, Snowden Law Firm, Lincoln, NE, Joseph F. Gross, Jr., Timmermier, Gross Law Firm, Omaha, NE, for Defendants.

MEMORANDUM AND ORDER

JOHN M. GERRARD, District Judge.

This matter is before the Court on the Motion for Summary Judgment (filing 119) filed by defendant FedEx National LTL, Inc. (FedEx), and a related Objection Pursuant to Rule 56(c)(2) (filing 133) filed by FedEx with respect to the evidence offered by the plaintiffs in opposition to the summary judgment motion. As explained below, the Court finds that FedEx's motion for summary judgment should be granted, and that its 56(c)(2) objection should be sustained on the basis of relevance.

BACKGROUND

This case arises out of an automobile accident. The plaintiffs are the estate of Chaungene L. Ward, the decedent who was killed in the accident; and Monica Nolan, who was injured in the accident. Filing 120 at 2, 9.¹ The defendants are Oleg Velichkov, the driver of the vehicle that struck Ward's; Mickey's Trucking Express, Inc., which owned Velichkov's vehicle; Fresh Start Inc., which employed Velichkov; Milco and Nermin Doneski, who are husband and wife, and owned Mickey's and Fresh Start, respectively; and FedEx, which contracted with Fresh Start for transportation services. Filing 120 at 2–4, 9–10.

The primary issue presented by FedEx's motion for summary judgment is whether FedEx can be held liable for Velichkov's alleged negligence. This, as will be explained below, turns on the relationship (or lack thereof) between FedEx and Velichkov. FedEx owned its own tractors and trailers and is licensed to operate as a motor carrier. Filing 121–2 at 10–12. But FedEx also contracted with various motor carriers to provide what it called “line haul” service: transportation between cities where FedEx service centers are located. Filing 120 at 4. Fresh Start was a so-called “power only” contractor for line haul services, meaning that Fresh Start provided a driver with a tractor to haul FedEx's trailers (as opposed to a driver with a tractor and trailer). Filing 120 at 5, 10. FedEx pays power-only contractors on a per-mile rate, based upon the established mileage between the service centers. Filing 120 at 5–7. Those payments are made to the carrier, not the individual drivers. Filing 120 at 7. FedEx did not pay expenses or allowances on such contracts, withhold any taxes, or pay workers' compensation or other benefits for such contractors. Filing 120 at 5–6. Power-only contractors pay for their own liability, hazardous-materials, and cargo coverage. Filing 120 at 7. The agreement between FedEx and Fresh Start specifically identified the relationship as that of “independent contractor.” Filing 120 at 7.

The plaintiffs do dispute FedEx's statements of fact with respect to some aspects of FedEx's control over power-only drivers' activities. See filing 127. However, it appears that their disagreement is less over the facts, and more over the legal significance of those facts. To begin with, FedEx asserts that power-only drivers do not perform labor at service centers to load any trailers, filing 120 at 6, but the plaintiffs claim that drivers were required by contract to “ ‘verify the trailer seal, match the paperwork ... and leave with the load and all paperwork in order, immediately.’ ” Filing 127 at 3. The Court does not view those statements as being inconsistent. It is clear from an examination of the evidence that FedEx's statement was meant to convey that the drivers did not load the trailers, i.e., physically place the cargo in the trailer; the plaintiffs' statement is not to the contrary.

Similarly, the plaintiffs controvert FedEx's contention that FedEx permitted power-only drivers to control what route to follow, filing 120 at 6; the plaintiffs point to a contractual addendum in which Fresh Start agreed that its drivers would, for instance, minimize time spent in high-crime areas, park units in secure areas when possible, and not take FedEx trailers to private residences. Filing 128–3. Again, the Court does not view the parties as really saying different things—it is apparent that while FedEx required Fresh Start's drivers to protect its cargo, FedEx did not, for instance, dictate that transportation between particular service centers would follow particular highways.

Finally, the plaintiffs take issue with FedEx's contention that FedEx did not require a power-only driver to report to FedEx during a trip, filing 120 at 7; the plaintiffs note that FedEx was to be notified in the event of an accident, theft, or break-in. Filing 128–3. The plaintiffs are correct on that point, but have not contradicted FedEx's broader point that power-only drivers were not required to contact FedEx during the course of a routine trip between service centers.

On October 28, 2007, Velichkov and his co-driver were westbound in a tractor-trailer on Interstate 80 in York County, Nebraska. Filing 120 at 9. The tractor was owned by Mickey's and leased to Fresh Start. Filing 120 at 8. Velichkov and his co-driver had picked up two FedEx trailers in Cincinnati, Ohio, and were on the way to Salt Lake City, Utah. Filing 120 at 8. Velichkov was driving. Filing 120 at 9. The vehicle went onto the median and returned to the westbound lanes of the Interstate, but overturned, blocking both lanes of westbound traffic. Filing 120 at 9. Ward was driving a rental truck westbound on Interstate 80 and collided with the overturned tractor. Filing 120 at 9. Ward was killed, and Nolan, his passenger, was seriously injured. Filing 1 at 9; filing 29 at 5–6.

Nolan and Harris, the personal representative of Ward's estate, filed a complaint in this Court (filing 1). As pertinent to FedEx, the plaintiffs allege that the accident was caused by Velichkov's negligence, within the scope of his employment by FedEx, and that Velichkov's negligence was imputed to FedEx under the doctrine of respondeat superior. Filing 1 at 9–10, 13–16. They also allege that Velichkov was using drugs and that FedEx knew or should have known that he was incompetent to drive, but negligently entrusted the vehicle to him anyway, causing the accident. Filing 1 at 18–19. And the plaintiffs allege that FedEx, as Velichkov's employer, caused the accident by not adequately training Velichkov, supervising him, or testing him for drugs. Filing 1 at 20. FedEx denied the relevant allegations. Filing 29 at 6–13.

The plaintiffs' complaint (filing 1) was filed on October 1, 2009. A scheduling order (filing 41) was entered on March 8, 2010, which set a deadline of April 9 for the plaintiffs to amend pleadings and/or add parties. That provision was reconfirmed on July 13 (filing 46). An amended scheduling order (filing 62) was entered on October 25, on the joint motion of the parties, extending certain deadlines. That order did not discuss an extended deadline for amending pleadings, and the initial deadline for amendment had long since passed. The same was true of the second amended scheduling order (filing 82), entered on July 28, 2011; the third amended scheduling order (filing 87), entered September 7; and the final amended scheduling order (filing 90), entered October 11.

On November 23, 2011, the parties filed a Joint Motion to Amend Scheduling Order (filing 100) seeking yet another amendment. In particular, the plaintiffs now sought leave to file an amended complaint that would, among other things, “plead a theory of independent negligence against FedEx National.” Filing 100. The Magistrate Judge entered an order (filing 101) denying the motion. The Magistrate Judge reasoned that the case had been pending for more than 2 years and “that to allow Plaintiffs to file an amended complaint so as to add the theory of independent negligence against FedEx National, and then give Defendants additional time to conduct discovery with respect to this amendment, would unduly delay this litigation.” Filing 101. The parties reargued the Magistrate Judge's ruling in an off-the-record conference with then-Chief Judge Joseph F. Bataillon, who entered a text order (filing 109) finding that the Magistrate Judge's ruling was sound.

Nonetheless, the plaintiffs filed a motion to amend their complaint (filing 110). The Magistrate Judge entered yet another order (filing 112) denying the plaintiffs' motion. The plaintiffs then filed an objection to the Magistrate Judge's order (filing 113), which this Court overruled. Filing 140. Specifically, the Court explained:

The plaintiffs argue that their original complaint (filing 1) stated claims for both negligent hiring and negligent entrustment on the part of FedEx. That much is true. But the plaintiffs' complaint premised those claims entirely upon allegations that FedEx was negligent in hiring, training, and supervising ... Velichkov. The proposed amended complaint (filing 101–1), however, would add an entirely new theory of recovery. In the amended complaint, the plaintiffs allege that FedEx was negligent in contracting with ... Fresh Start ... and Mickey's ... because FedEx knew or should have known that Mickey's ... had a poor safety record. [ See filing 101–1.] Even a liberal construction of the plaintiffs' original complaint would not have suggested this theory of liability. The plaintiffs' characterization of their amended complaint as a “formality”that serves to “ ‘clarify’ the causes of action”, see filing 114 at 8, is...