United States District Court, E.D. Missouri, Eastern Division
SUSAN E. JACKSON Plaintiff,
ASPLUNDH CONSTRUCTION CORPORATION, et al., Defendant(s).
MEMORANDUM AND ORDER
RICHARD WEBBER SENIOR UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendants Asplundh
Construction Corporation and Anthony Michael Rogers's
Motion for Summary Judgment. [ECF No. 45].
action arises from a motor vehicle collision on December 3,
2007, between Defendant Anthony Rogers (“Defendant
Rogers”), an employee of Defendant Asplundh
Construction Corporation (“Defendant Asplundh”),
and Plaintiff Susan E. Jackson. Plaintiff initially brought
her petition in state court on March 24, 2015, and Defendants
removed the action to this Court on May 6, 2015. [ECF Nos. 1,
3]. In their Motion for Summary Judgment, Defendants
challenge the sufficiency of Plaintiff's state court
Plaintiff's petition, she pleads, at all times in this
action, Defendant Rogers operated the motor vehicle within
the scope of his employment with Defendant Asplundh. [ECF No.
47 at ¶¶ 2-4]. Plaintiff pleads eight different
counts in her petition: “Count I - Defendant Rogers,
” “Count II - Punitive Damages - Rogers, ”
“Count III - Punitive Damages - Asplundh, ”
“Count IV - Defendant Asplundh, ” “Count V
- Negligent Hiring And/Or Retention Defendant Asplundh,
” “Count VI - Negligent Supervision - Defendant
Asplundh, ” “Count VII - Negligent Entrustment -
Defendant Asplundh, ” “Count VIII - Punitive
Damages - Asplundh.” [ECF Nos. 47 at ¶¶ 5-13,
3 at ¶¶ 7-56].
STANDARD OF REVIEW
judgment is proper only if there exists “no genuine
issue as to any material fact” and the moving party is
entitled to judgment as a matter of law. Fed. R. of Civ.
Proc. 56(c); Bores v. Domino's Pizza, LLC, 530
F.3d 671, 674 (8th Cir. 2008). The burden of proof is on the
party moving for summary judgment, and all facts and
reasonable inferences are to be viewed in the light
most-favorable to the non-moving party. Duluth, Winnipeg
and Pacific Ry. Co. v. City of Orr, 529 F.3d 794, 797
(8th Cir. 2008). “Although the moving party has the
burden of demonstrating the absence of genuine issues of
material fact, ‘the nonmoving party may not rest upon
mere denials or allegations, but must instead set forth
specific facts sufficient to raise a genuine issue for
trial.'” Burchett v. Target Corp., 340
F.3d 510, 516 (8th Cir. 2003) quoting Rose-Maston v. NME
Hosps., Inc., 133 F.3d 1104, 1107 (8th Cir. 1998).
facts are determined by substantive law, and factual disputes
which are irrelevant or collateral do not preclude summary
judgement. Anderson v. Liberty Lobby, Inc. 477 U.S.
242, 248 (1986). A dispute is a genuine issue, where the
evidence is such a reasonable jury could return a verdict for
the nonmoving party. Id. at 248. If the non-moving
party has failed to “make a showing sufficient to
establish the existence of an element essential to that
party's case, ... there can be ‘no genuine issue as
to any material fact, ' since a complete failure of proof
concerning an essential element of the non-moving party's
case necessarily renders all other facts immaterial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
moving party must show “there is an absence of evidence
to support the nonmoving party's case.”
Celotex, 477 U.S. at 325. If the moving party meets
this initial burden, the non- moving party must then set
forth affirmative evidence and specific facts that
demonstrate a genuine dispute on that issue.
Anderson, 477 U.S. at 250. The non-moving party must
demonstrate sufficient favorable evidence that could enable a
jury to return a verdict for it. Anderson, 477 U.S.
at 249. “If the non-moving party fails to produce such
evidence, summary judgment is proper.” Olson v.
Pennzoil Co., 943 F.2d 881, 883 (8th Cir. 1991).
petition contains eight different counts alleging negligence,
multiple forms of derivative tort liability against Defendant
Asplundh and counts for punitive damages. Defendants argue
summary judgment is appropriate on Counts II, III and VII
because they are stand alone punitive damage claims
prohibited by Missouri law. Defendants further allege
entitlement to summary judgment on Counts IV, V, VI, and VII,
because Defendants have already admitted derivative liability
through respondeat superior barring Plaintiff from asserting
other theories of derivative liability. [ECF No. 46].
in response, argues Defendants' Motion for Summary
Judgment fails to comply with Federal Rule of Civil Procedure
(“FRCP”) 56(c) and Local Rule 7-4.01(E) by
failing to provide material facts with proper citations,
Plaintiff properly pleaded punitive damages in Counts II,
III, and VIII, and Plaintiff can proceed with other forms of
derivative tort liability because of the punitive damages
exception to the rule stated in McHaffie By & Through
McHaffie v. Bunch, 891 S.W.2d 822, 826 (Mo. 1995). [ECF
reply their statement of undisputed material facts complied
with local rules and FRCP 56(c). Furthermore, they argue the
punitive damage counts are improperly pleaded because they
are not pleaded as separate causes; pleading by reference
does not remedy Plaintiff's pleading deficiencies; and in
the alternative pleading in separate counts is confusing and
prejudicial. Finally, Plaintiff's other claims of
derivative liability fail because the McHaffie
exception does not apply here. Plaintiff's claims must be
dismissed, because Defendant Asplundh has already admitted
respondeat superior. [ECF No. 54].
Defendants' Statement of Material Facts
filed a statement of undisputed material facts along with
their Motion for Summary Judgment, which cited only
Plaintiff's state court petition, and did not include any
other exhibits, material evidence or deposition testimony.
[ECF No. 47]. Plaintiff argues, in her response, this does
did not comply with FRCP 56(c) and Local Rule 7-4.01(E)
because it fails to cite to the record, deposition testimony
or affidavit, and therefore, the Court lacks sufficient
factual support to grant summary judgment in favor of