Lueders v. Arp

321 F.Supp.3d 968

Daniel H. LUEDERS and Rosens, Inc.,¹ Plaintiffs,

v.Aaron ARP, et al., Defendants.

8:17-CV-373

United States District Court, D. Nebraska.

Signed March 30, 2018

Jacqueline M. Tessendorf, Tessendorf, Tessendorf Law Firm, Columbus, NE, Michelle D. Epstein, Ausman Law Firm, Joseph W. Grant, Paul F. Prentiss, Prentiss, Grant Law Firm, Omaha, NE, for Plaintiffs.

Timothy R. Hook, U.S. Attorney's Office—Omaha, Omaha, NE, for Defendants.

MEMORANDUM AND ORDER

John M. Gerrard, United States District Judge

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.

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.

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 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 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, 111 S.Ct. 1180, 113 L.Ed.2d 134 (1991) ; see also Simmons v. Himmelreich , ––– U.S. ––––, 136 S.Ct. 1843, 1850, 195 L.Ed.2d 106 (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, 110 S.Ct. 2418, 110 L.Ed.2d 312 (1990). As such, it cannot be sued directly either. See F.D.I.C. v. Meyer , 510 U.S. 471, 484-86, 114 S.Ct. 996, 127 L.Ed.2d 308 (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 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 13-1 at 7-8. The record sufficiently establishes the fact...