Patterson v. Dahlsten Truck Line, Inc.

130 F.Supp.2d 1228

Helen PATTERSON, Administratrix of the Estate of Thomas F. Patterson, Deceased, and Helen Patterson, Individually and as an Heir to Thomas F. Patterson, Deceased, Plaintiff, v. DAHLSTEN TRUCK LINE, INC., et al., Defendants.

No. 99-2422-JWL.

United States District Court, D. Kansas.

December 28, 2000.

James M. Yeretsky, Yeretsky & Maher, L.L.C., Kansas City, MO, Larry M. Amoni, Aurora, IL, for Plaintiff.

Robert A. Horn, Sarah Yehle Fulkerson, K. Christopher Jayaram, Horn, Aylward & Bandy LLC, Kansas City, MO, for Defendants.

MEMORANDUM AND ORDER

LUNGSTRUM, District Judge.

This is a diversity action which arises out of a collision between a semi-tractor trailer driven by defendant Kenneth L. Barry and an automobile driven by plaintiff's decedent, Thomas F. Patterson. The semi-tractor trailer was owned by defendant Dahlsten Truck Line, Inc. ("Dahlsten"), who concedes that Mr. Barry was driving it in the ordinary course of his employment. Plaintiff contends that one or more negligent acts of Mr. Barry or Dahlsten caused the fatal accident.

A number of motions are currently before the court. First, plaintiff has filed a motion for leave to file an amended complaint, attaching the proposed amended complaint to her motion (Doc. 50). Second, defendants have filed a motion to amend the Pretrial Order (Doc. 55). Third, Dahlsten has moved for summary judgment "as to plaintiff's claims for negligent hiring, training, retention, and/or supervision" (Doc. 44). Fourth, plaintiff has moved for summary judgment "on the issue of negligence of defendants Barry and Dahlsten and the lack of contributory negligence of [Mr. Patterson]" (Doc. 51). Fifth, Plaintiff has also filed a motion seeking to amend her motion for summary judgment in order to number the fact paragraphs set forth in the motion (Doc. 67). Sixth, defendants have move to strike plaintiff's expert witness designations (Doc. 70). Finally, defendants have moved the court for an order sanctioning plaintiff for failing to comply with a notice of deposition (Doc. 74).

For the reasons stated below, plaintiff's motion for leave to file an amended complaint is granted, defendants' motion to amend the Pretrial Order is granted, Dahlsten's motion for summary judgment is denied, plaintiff's motion for summary judgment is denied, plaintiff's motion seeking to amend her motion for summary judgment is granted, defendants' motion to strike plaintiff's expert witness designations is granted, and defendants' motion for sanctions is granted.

• Facts

The uncontroverted facts relevant to the current motions are relatively sparse. On February 11, 1999, at approximately 1:35 p.m., a tractor trailer rig driven by Mr. Barry and a car driven by Mr. Patterson collided on a two-lane highway outside of Home, Kansas. More specifically, after the car, which was proceeding in the eastbound lane, passed the tractor, which was proceeding in the westbound lane, the car collided with the trailer that was being pulled by the tractor. At the time of the crash, blowing snow created "white out" conditions and snow and ice had accumulated on the highway. Mr. Barry had just down-shifted two gears and was in the process of "stab braking" in order to slow the tractor trailer so that it would not hit a pickup truck which was traveling at a slower pace in the same lane. Mr. Barry was driving the tractor trailer in the course and scope of his employment with Dahlsten Truck Lines.

Plaintiff filed this action on September 16, 1999, alleging that the negligent acts of Mr. Barry and/or Dahlsten (individually or under a theory of respondeat superior) caused the accident.

• Discussion

There are seven motions currently pending before the court. It troubles the court to note, however, that five of the seven motions have gone completely unresponded to by the non-moving party. D. Kan. R. 7.1(b) prescribes a ten day time period for responding to non-dispositive motions and a twenty day time period for responding to motions to dismiss or for summary judgment. "If a respondent fails to file a response within the time required by Rule 7.1(b), the motion will be considered and decided as an uncontested motion, and ordinarily will be granted without further notice." D. Kan. R. 7.4. The time periods set forth by Rule 7.1(b) have clearly passed for each of the unopposed motions. Thus, the court grants these motions as uncontested.

First, plaintiff's motion titled Motion for Leave to File a First Amended Complaint (Doc. 50), filed on October 16, 2000, is granted. Because the Final Pretrial Order and First Amended Pretrial Order supercede all pleadings, however, the court will construe plaintiff's motion as a motion for leave to file amendments to the First Amended Pretrial Order. Plaintiff may file an Addendum to the First Amended Pretrial Order, incorporating the new matters which she set out in her proposed Amended Complaint attached to her motion. The Addendum shall be filed no later than January 16, 2000.

Second, defendants' Motion to Amend the Pretrial Order (Doc. 55), filed on October 30, 2000, is granted. Defendants may file an Addendum to the First Amended Pretrial Order, incorporating the three specific amendments requested in their motion. The Addendum shall be filed no later than January 16, 2000.

Third, plaintiff's Motion for Leave to File Amendment to Motion for Summary Judgment (Doc. 67), filed on November 15, 2000, is granted. The amended motion simply numbers the paragraphs that state material facts in plaintiff's motion for summary judgment. In ruling on plaintiff's motion for summary judgment below, the court has examined plaintiff's Amended Motion for Summary Judgement, which was attached to plaintiff's motion seeking leave to amend.

Fourth, defendants' Motion to Strike Plaintiff's Expert Witness Designations (Doc. 70), filed on November 17, 2000, is granted. Plaintiff's designation of expert witnesses, provided defense counsel on October 31, 2000, is stricken, and plaintiff is prohibited from utilizing witnesses mentioned in the designation to introduce "expert" testimony at trial.

Fifth, defendants' Motion for F.R.C.P. 37 Sanctions (Doc. 74), filed November 20, 2000, is granted. As a sanction for plaintiff's failure to comply with the notice of deposition issued on September 21, 2000, the court prohibits plaintiff from supporting her claims for damages with testimony of any witness that has failed to appear for deposition. Moreover, plaintiff shall pay the reasonable expenses, including attorney's fees, caused by plaintiff's failure to produce said witnesses.

The court believes that such treatment of the above motions is fair, in light of the parties' ongoing pattern of untimeliness and complete failure to file responses to the motions filed by their counterparts. The two remaining motions before the court, while not unresponded to, are also tainted by plaintiff's failure to meet deadlines. First, defendant Dahlsten's Motion for Partial Summary Judgment (Doc. 44), filed on October 10, 2000, was not responded to by plaintiff until November 7, 2000 five days after the November 2 deadline imposed by Rule 7.1(b). Second, plaintiff's Motion for Partial Summary Judgment (Doc. 51), filed on October 13, 2000, was filed three days after the dispositive motion deadline set in the Final Pretrial Order. The court could decide these motions in defendants' favor based solely on plaintiff's untimeliness, but the dispositive nature of the motions distinguish them from the motions granted above. Moreover, some action, although late, was taken by plaintiff with regard to these summary judgment motions, in contrast to the motions discussed above which were completely unresponded to. Thus, the court will proceed to address the merits of these motions.

• Defendant Dahlsten's Motion for Summary Judgment

Dahlsten moves the court to enter summary judgment "as to plaintiff's claims for negligent hiring, training, retention, and/or supervision" (Doc. 44). Dahlsten asserts that "when a[n] [employer] admits respondeat superior, it is improper to permit the plaintiff to also proceed against the employer under the doctrines of negligent hiring training, retention, or supervision." The court considers Dahlsten's argument below and concludes that summary judgment must be denied.

Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." Id. (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505).

The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. See id. at 670-71. In attempting to meet that standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim. See id. at 671 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).

Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific...