Robert Ellingsworth v. Vermeer Manufacturing Company ( 2020 )

United States Court of Appeals
For the Eighth Circuit
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No. 18-3587
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Robert Ellingsworth
lllllllllllllllllllllPlaintiff - Appellant
v.
Vermeer Manufacturing Company
lllllllllllllllllllllDefendant - Appellee
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Appeal from United States District Court
for the Western District of Missouri - Joplin
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Submitted: December 10, 2019
Filed: February 10, 2020
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Before ERICKSON, ARNOLD, and KOBES, Circuit Judges.
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KOBES, Circuit Judge.
Robert Ellingsworth sued Vermeer Manufacturing Company in Missouri state
court, claiming he was injured while operating a Vermeer wood chipper. Vermeer
removed the case and the district court1 denied Ellingsworth’s motions to remand and
for leave to amend and granted summary judgment to Vermeer. We affirm each of
those rulings.
I.
Ellingsworth, an employee of Vaught Tree Service, was injured on the job in
February 2014. He was feeding a small tree into a Vermeer-manufactured wood
chipper using a winch attached to the chipper when the winch line became entangled
in the tree’s branches. The line was drawn into the chipper and then shot back out,
seriously injuring Ellingsworth’s legs.
Ellingsworth filed this action in Missouri state court. As relevant here, he
alleged products liability and failure to warn claims under both strict liability and
negligence theories. He also brought claims against his supervisor at Vaught,
Dwayne Marshall, alleging Marshall increased the danger posed by the wood chipper
on the job site.
Vermeer, an Iowa citizen, removed the case to federal court asserting diversity
jurisdiction. Ellingsworth, a Missouri citizen, moved to remand, arguing there was
no complete diversity because Marshall was also a Missouri citizen. The district
court denied the motion, finding that Marshall was fraudulently joined because
Ellingsworth had no cause of action against him. Shortly after, Ellingsworth
voluntarily dismissed Marshall from the case.
1
The Honorable Sarah W. Hays, United States Magistrate Judge for the
Western District of Missouri, to whom the case was referred for final disposition by
consent of the parties pursuant to 28 U.S.C. § 636(c).
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Discovery revealed that although Vermeer manufactured the wood chipper, the
winch was an after-market component constructed of mostly Vermeer parts and added
by an unknown prior owner. Based on several parts invoices turned up in discovery,
Ellingsworth believed that the winch had been constructed by Vermeer Sales of
Oklahoma, a Vermeer dealership.2 Ellingsworth amended his complaint to add
Vermeer Oklahoma as a defendant. However, Vermeer Oklahoma was defunct and
never answered the complaint. Ellingsworth voluntarily dismissed it from the case
after he determined it was essentially unreachable.
With no way to bring Vermeer Oklahoma into the case, Ellingsworth moved
to amend his complaint to add a claim for agency liability against Vermeer to hold it
liable for the actions of its dealer. The district court denied that motion because the
time to amend the complaint under the scheduling order had passed and Ellingsworth
could not show “good cause” for the delay.
The district court granted summary judgment to Vermeer on all counts and
Ellingsworth appealed. We have jurisdiction under 28 U.S.C. § 1291.
II.
Ellingsworth challenges the denial of his motion to remand and suggests that
we should vacate all of the district court’s subsequent rulings and send this case back
to state court.
“[A] district court’s error in failing to remand a case improperly removed is not
fatal to the ensuing adjudication if federal jurisdictional requirements are met at the
time judgment is entered.” Caterpillar Inc. v. Lewis, 519 U.S. 61, 64 (1996). Here,
2
If true, Vermeer Oklahoma violated its dealer agreement, which prohibited
it from modifying Vermeer products or manufacturing parts.
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after the district court denied the motion to remand, Ellingsworth voluntarily
dismissed the only nondiverse party (Marshall) then in the case. When judgment was
entered, there was complete diversity among the parties. Even assuming the district
court erred, under Caterpillar Ellingsworth cannot get the relief he wants.
To avoid this conclusion, Ellingsworth attempts to confine Caterpillar to cases
in which federal proceedings have carried on for an unusually long time or
culminated in a jury trial. But we have held that “Caterpillar suggests a categorical
rule, not a case-by-case inquiry into how much time was spent litigating each
particular case in the district court,” Buffets, Inc. v. Leischow, 732 F.3d 889, 898 (8th
Cir. 2013), and we have found it applicable to summary judgment, see Junk v.
Terminix Int’l Co., 628 F.3d 439, 447 (8th Cir. 2010).
III.
Ellingsworth next argues that the district court erred when it denied his motion
for leave to amend his complaint to add a claim of agency liability against Vermeer.
We review that decision for an abuse of discretion. Harris v. FedEx Nat’l LTL, Inc.,
760 F.3d 780, 786 (8th Cir. 2014).
Because Ellingsworth sought to amend his complaint after the deadline had
passed, he must show “good cause.” Sherman v. Winco Fireworks, Inc., 532 F.3d
709, 716 (8th Cir. 2008); see also Fed. R. Civ. P. 16(b). “The primary measure of
good cause is the movant’s diligence in attempting to meet deadlines.” Albright v.
Mountain Home Sch. Dist., 926 F.3d 942, 951 (8th Cir. 2019) (citation omitted).
Good cause may be shown by pointing to a change in the law, newly discovered facts,
or another significant changed circumstance that requires amendment of a party’s
pleading. Hartis v. Chi. Title Ins. Co., 694 F.3d 935, 948 (8th Cir. 2012).
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As the district court explained in denying his motion, at the time that
Ellingsworth sought leave to amend, no new facts supporting an agency liability
claim against Vermeer had come to light. On top of that, the litigation was at an
advanced stage and granting the motion would have required reopening discovery.
Ellingsworth admits that his real reason for pressing the agency claim belatedly was
his realization that he had no other way to hold Vermeer Oklahoma liable for
allegedly building and installing the winch. His attempted addition of the claim had
more to do with a change in litigation strategy than in the factual or legal basis of his
case. That is not sufficient to establish good cause and the district court was well
within its discretion to deny the motion.
IV.
Finally, Ellingsworth claims that the district court erred in granting Vermeer’s
motion for summary judgment on his products liability and failure to warn claims.
We review a grant of summary judgment de novo and will affirm if the record shows
that there are no genuine issues of material fact and the prevailing party is entitled to
judgment as a matter of law. Junk, 628 F.3d at 450.
On appeal, Ellingsworth makes clear that his remaining claims against Vermeer
for both products liability and failure to warn only concern the winch attachment to
the wood chipper, not the wood chipper itself. Under Missouri law, both strict
liability and negligence versions of these claims require that the defendant
manufactured or sold the product causing injury. Johnson v. Auto Handling Corp.,
523 S.W.3d 452, 466 (Mo. banc 2017) (negligent products liability and failure to
warn); Moore v. Ford Motor Co., 332 S.W.3d 749, 756 (Mo. banc 2011) (strict
liability failure to warn); Strong v. Am. Cyanamid Co., 261 S.W.3d 493, 506 (Mo. Ct.
App. 2007), overruled on other grounds by Badahman v. Catering St. Louis, 395
S.W.3d 29, 40 (Mo. banc 2013) (strict liability products liability). That element is
fatal to Ellingsworth’s case.
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The record shows that Vermeer did not manufacture the winch attachment that
injured Ellingsworth. It is uncontested that Vermeer offers no after-market winch
attachments for sale and that the wood chipper that injured Ellingsworth did not have
a winch when Vermeer manufactured it. At most, the evidence suggests that the
winch was constructed by a third party out of mostly Vermeer parts, but
Ellingsworth’s suit is not about the quality of the winch parts. He alleges that
Vermeer manufactured the winch itself. Because the record forecloses that argument,
the district court correctly granted Vermeer summary judgment. We affirm.
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