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Jackson v. Asplundh Construction Corp.

United States District Court, E.D. Missouri, Eastern Division

September 8, 2016

SUSAN E. JACKSON Plaintiff,
v.
ASPLUNDH CONSTRUCTION CORPORATION, et al., Defendant(s).

          MEMORANDUM AND ORDER

          E. RICHARD WEBBER SENIOR UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on Defendants Asplundh Construction Corporation and Anthony Michael Rogers's Motion for Summary Judgment. [ECF No. 45].

         I. BACKGROUND

         This 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 petition.

         In 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].

         II. STANDARD OF REVIEW

         Summary 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).

         Material 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).

         The 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).

         III. DISCUSSION

         Plaintiff's petition contains eight different counts alleging negligence, multiple forms of derivative tort liability[1] 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].

         Plaintiff, 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 No. 48].

         Defendants 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].

         A. Defendants' Statement of Material Facts

         Defendants 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 ...


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