Andrews, Steven G. v. E.I. DuPont de Nemou ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2882
STEVEN G. ANDREWS,
Plaintiff-Appellant,
v.
E.I. DU PONT DE NEMOURS AND COMPANY,
Defendant/Third-Party Plaintiff-Appellee,
and
CANADA MARITIME LIMITED, a foreign limited
liability company, and ADRIAN CARRIERS,
INCORPORATED, an Iowa corporation,
Third-Party Defendants-Appellees.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 02 C 4032—Joe Billy McDade, Judge.
____________
ARGUED SEPTEMBER 7, 2005—DECIDED MAY 5, 2006
____________
Before CUDAHY, MANION, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Steven Andrews (“Andrews”) was
transporting thousands of pounds of ink for E.I. du Pont
de Nemours and Company (“DuPont”) when his truck
tipped over on a highway ramp. Andrews sued DuPont
for negligently loading the truck. When DuPont won a
2 No. 04-2882
summary judgment, Andrews moved the district court
to alter or amend its judgment under Rule 59(e) of the
Federal Rules of Civil Procedure. That request tolled the
time for appealing. See FED. R. APP. P. 4(a)(4)(A). Once
the district court denied Andrews’ motion, the thirty-day
clock for appealing began. Id. Andrews asked the dis-
trict court to reconsider once again. His second request
came more than ten days after the entry of judgment,
however, which is too late. See FED. R. CIV. P. 59(e). An-
drews did not see it that way. He read the district court’s
denial of the first Rule 59(e) motion as a new basis for the
summary judgment, and thus a new judgment. Andrews
maintained that his new Rule 59(e) motion came within ten
days of the new judgment. The district court disagreed. It
explained that there was nothing new in its denial of the
first Rule 59(e) motion and again refused to alter the
judgment, this time on the basis that Andrews’ motion was
not timely. By the time Andrews finally appealed, thirty-
five days after the denial of his first Rule 59(e) motion, it
was too late to challenge the entire judgment. The question
for us is whether the district court properly denied as
untimely Andrews’ second motion to alter or amend the
judgment. We hold that it did.
I. Background
Andrews was driving a semitrailer filled with eighteen
“totes” (a portable tank of sorts) of ink, each containing
1000 liters and weighing about 2420 pounds, when the semi
turned over entering a highway in Illinois. The ink belonged
to DuPont, which had packed the truck at its Iowa shipping
facility. Andrews sued DuPont for injuries he suffered in
the accident, alleging that DuPont negligently loaded the
ink totes. Andrews maintained that the totes should have
been loaded in a pinwheel fashion inside the trailer and
that the totes should have been braced to the side walls.
No. 04-2882 3
Instead, the totes apparently were stacked. According to
Andrews, “stacked totes” is synonymous with “improperly
loaded totes,” and we can assume as much for purposes of
this appeal. Andrews’ theory of the case is that as he took
the curve to enter the highway, the improperly loaded ink
totes shifted to one side of his trailer causing the turnover.
Andrews’ claims did not survive summary judgment.
Applying Illinois law to this diversity dispute, the district
court held that Andrews could not prove his case—which
involves physics questions about a cargo load of liquid ink
weighing more than 40,000 pounds, the superelevation1
of highway ramps, and the force needed to move the ink
totes out of formation—without an expert because the
facts and issues are outside the experience of the ordinary
juror. See generally Baltus v. Weaver Div. of Kidde & Co.,
Inc., 557 N.E.2d 580, 588 (Ill. Ct. App. 1990) (discussing
when expert testimony is necessary). Andrews offered one
expert but because the expert based his calculations on data
from the wrong highway ramp, the court concluded that the
witness did not pass muster under the test for reliable
expert testimony set out in Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Without
his only expert, Andrews had no way to demonstrate that
any negligence on DuPont’s part proximately caused the
truck to tip over, and the district court granted DuPont
summary judgment. The order granting judgment was
entered May 5, 2004.
Andrews moved the district court in a timely fashion
to alter or amend the judgment under Federal Rule of
Civil Procedure 59(e). He argued that if he needed an expert
to show causation, he could rely on the testimony of
DuPont’s expert, Fred Monick. Monick testified that stacked
1
On a highway ramp the outer edge is higher than the inside
edge. Roughly speaking, the superelevation is a measurement
of how much higher the outside edge is than the inside edge.
4 No. 04-2882
(or improperly loaded) totes would not have tipped unless
the truck took the curve at 56 mph. Moreover, said Monick,
the totes would not have slid inside the truck unless the
truck took the curve at 60-62 mph. Monick concluded “that
if the subject curve was traversed at 35 mph[, as Andrews
and his eyewitnesses claimed,] . . . the truck would not have
rolled over on the day of the accident absent mechanical
problems.” Andrews’ Rule 59(e) motion misinterpreted
Monick’s testimony. By Andrews’ account, Monick testified
that if the truck had been properly loaded, it would not have
tipped over at 35 mph. Since he had eyewitness testimony
to establish that the truck was traveling 35 mph when it
took the curve, the truck must have been improperly loaded.
The trial court rejected Andrews’ argument. It said:
Plaintiff claims that summary judgment is inappro-
priate, in that he can rely on the testimony of Monick to
establish an evidentiary basis for his theory that a load
shift was the proximate cause of his accident. This is at
odds with Monick’s findings, where he opined that the
stacked totes would not have tipped unless Plaintiff had
negotiated the curve at a speed of 56 mph or more and
that the totes would not have slid unless Plaintiff was
traveling at a speed of 60-62 mph or more. Monick’s
opinion is fundamentally at odds with Plaintiff’s theory.
Accordingly, on June 14, 2004,2 the district court entered a
denial of Andrews’ motion to alter or amend the judgment.
At that point, Andrews had thirty days to file his notice of
appeal. See FED. R. APP. P. 4(a)(1)(A), 4(a)(4) (A)(iv).
Rather than pursue an appeal, Andrews filed a second
Rule 59(e) motion to alter or amend the judgment on June
2
The order is actually dated June 11, 2004, but it was not
entered until June 14, 2004. Since the date of entry of the order
is what is important for our purposes, see FED. R. APP. P. 4(a)
(4)(A), we refer to the order as the “June 14 order.”
No. 04-2882 5
17, 2004. He claimed that the district court created a
new judgment in its June 14 order by denying his first
motion on new grounds. According to Andrews, the dis-
trict court held that he could not rely on Monick’s testimony
because the testimony established that the truck
was actually driving 56 mph, which was at odds with
Andrews’ eyewitnesses who said the truck was going
35 mph. The trial court rejected this motion as untimely.
Rule 59(e) motions must be brought within ten days of
the judgment; this one came forty-three days after the
original summary judgment. Only if the June 14 order
really did create a new judgment was Andrews’ second Rule
59(e) motion timely. The district court held that the June 14
order did not create a new judgment. The court had not
relied on Monick’s testimony for its truth; instead, it
explained why Andrews could not rely on Monick’s testi-
mony (regardless of whether Monick’s testimony was
substantively true or false). Monick’s testimony established
not that the truck was actually traveling 56 mph, but that
it had to reach 56 mph for improperly stacked totes to tip.
If Andrews’ eyewitnesses said the truck was going 35 mph,
no expert testimony could support Andrews’ load-shift
theory. With that the district court denied Andrews’ second
Rule 59(e) motion as successive and untimely.
The order denying Andrews’ second Rule 59(e) motion was
entered on July 12, 2004, so Andrews still had two days to
timely file a notice of appeal (thirty days from June 14 is
July 14). See FED. R. APP. P. 4(a)(4)(A); FED. R. CIV. P. 6(a);
see also Charles v. Daley, 799 F.2d 343, 347-48 (7th Cir.
1986) (holding that successive Rule 59(e) motions, unlike
timely filed ones, do not toll the time for appeal-
ing). Andrews did not appeal until July 19, 2004. Because
Andrews missed the deadline for appealing by five days, his
appeal is timely only as to the order denying the second
Rule 59(e) motion. So said this Court by order dated
February 3, 2005.
6 No. 04-2882
II. Discussion
We begin with the matter of jurisdiction. Neither party
has raised it but we have an independent obligation to
be sure jurisdiction exists. St. Paul Mercury & Indem. Co.
v. Red Cab Co., 303 U.S. 283, 287 n.10 (1938); Smith v. Am.
Gen. Life & Accident Ins. Co., 337 F.3d 888, 892 (7th Cir.
2003). This case was removed to federal court from an
Illinois state court on the basis of diversity jurisdiction, so
jurisdiction exists if the parties are citizens of differ-
ent states and the amount in controversy exceeds $75,000.
28 U.S.C. §§ 1441 & 1332. There is no question that the
parties are diverse—DuPont is a Delaware corporation with
its principal place of business there, too, and Andrews is a
citizen of Illinois. The question is whether the amount in
controversy is at least $75,000 exclusive of costs and
interest.
Typically, we can rely on the amount alleged in the
complaint to determine whether the amount in controversy
is satisfied, Rising-Moore v. Red Roof Inns, Inc., 435 F.3d
813, 815 (7th Cir. 2006), but that rule is not particularly
helpful here since Andrews’ complaint seeks damages “in
excess of $50,000.” Absent a controlling ad damnum clause
in a complaint, the defendant must show by a preponder-
ance of the evidence that the stakes are at least $75,000.
McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189
(1936) (“[W]here [jurisdictional facts] are not . . . chal-
lenged, the court may still insist that the jurisdictional facts
be established or the case be dismissed, and for that
purpose the court may demand that the party alleging
jurisdiction justify his allegations by a preponderance of the
evidence.”); Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d
536, 543 (7th Cir. 2006). Andrews alleged in his complaint
that he suffered “severe and permanent” injuries to his
head, ribs, and back. He also sought damages for pain and
suffering, past and future lost wages, past and future
medical expenses, and for disabilities suffered. Discussion
No. 04-2882 7
between DuPont and plaintiff’s counsel led DuPont to
believe that Andrews’ medical and rehabilitation expenses
alone would exceed $75,000, (see Notice of Removal
¶ 3)—not to mention Andrews’ lost wages (past and future)
and his pain and suffering. See, e.g., Rising-Moore, 435 F.3d
at 815 (noting in dicta that even where medical expenses
and lost wages amounted to only $45,000, “a modest
allowance for pain, suffering, and future losses . . . brings
the total over the threshold”). Andrews has not challenged
DuPont’s estimate of his potential damage. We are satisfied
that DuPont has shown by a preponderance of the evidence
that the amount in controversy requirement was met at the
time of removal. See Meridian Sec. Ins. Co., 441 F.3d at
541-43; see also Shaw v. Dow Brands, Inc., 994 F.2d 364(7th Cir. 1993) (noting that plaintiff conceded his claim was
worth the jurisdictional amount “by not contesting removal
when the motion was originally made, and by jurisdictional
statements to this Court in his first brief”).
The lone substantive subject of this appeal is the denial
of Andrews’ second Rule 59(e) motion, which we review
for abuse of discretion. Kapelanski v. Johnson, 390 F.3d
525, 530 (7th Cir. 2004). Andrews’ argument is the same
here as in the district court—the June 14 order denying his
first Rule 59(e) motion to alter or amend the judgment
actually created a new judgment. Andrews says the district
judge relied on grounds never before discussed when he
denied the first Rule 59(e) motion. According to Andrews, he
had ten days from the date of this new judgment, June 14,
2004, to file a Rule 59(e) motion, and once that motion was
decided, thirty days to appeal.
An appeal must be filed in a civil case like this one within
thirty days after the entry of judgment. FED. R. APP. P.
4(a)(1)(A). But a timely filed Rule 59(e) motion—one filed
within ten days of the entry of judgment—suspends the
time for taking an appeal. FED. R. CIV. P. 59(e); FED. R. APP.
P. 4(a)(4)(A). Once the Rule 59(e) motion has been ruled on,
8 No. 04-2882
the thirty-day appeal clock begins to run. FED. R. APP. P.
4(a)(4)(A). A party may not continue to file Rule 59(e)
motions in order to forestall the time for appealing; only the
first motion stops the clock. See Charles, 799 F.2d at 347;
see also Acevedo-Villalobos v. Hernandez, 22 F.3d 384, 389
(1st Cir. 1994) (noting that second motion filed more than
ten days after original judgment did not affect time for
appealing). The point of Rule 59 is to increase efficiency,
allowing district courts a chance to correct their own errors
rather than saddling the parties and appellate courts with
otherwise unnecessary appeals. See Charles, 799 F.2d at
348. A party gets one shot at asking the district court to
alter or amend the judgment and then he must move
forward with his appeal—at least in the ordinary case.
Sometimes—and this is the rare exception—the trial
court, upon considering a Rule 59(e) motion, will issue an
order that “changes matters of substance, or resolves a
genuine ambiguity, in a judgment previously rendered.”
Fed. Trade Comm’n v. Minneapolis-Honeywell Regulator
Co., 344 U.S. 206, 211 (1952). When that happens, we
construe the order as a new judgment in the case, and the
aggrieved party has a new ten-day period within which
to file another Rule 59(e) motion. Charles, 799 F.2d at
348 (“A successive motion directed to the same judgment is
ineffectual, but when there is a new judgment . . . there is
also a new period in which to file a motion under Rule 59.”).
Similarly, the time for appealing will not begin until this
new Rule 59(e) motion has been decided. Whether Andrews’
second Rule 59(e) motion was timely depends on whether
the June 14 order changed matters of substance or resolved
a genuine ambiguity in the original summary judgment
order. The test is whether the district court disturbed or
revised legal rights settled in the original summary judg-
ment order. Minneapolis-Honeywell, 344 U.S. at 212.
In fact, this Court has already decided the question. In an
order dated February 3, 2005, we held:
No. 04-2882 9
Plaintiff’s second motion to alter or amend (filed on
June 18, 2004) did not toll the time to appeal because it
was not filed within 10 business days of entry of the
judgment. See Charles v. Daley, 799 F.2d 343, 347 (7th
Cir. 1986). As such this appeal is timely only as [to] the
order entered on July 12, 2004, denying plaintiff’s
second motion to alter or amend judgment.
Andrews’ appeal was not timely because the order denying
Andrews’ first motion to alter or amend the judgment did
not create a new judgment; that much is implicit in our
February 3, 2005 order. We now make that point explicit,
though we need not—our February 3, 2005 holding is the
law of this case.
In the order granting DuPont summary judgment, the
district court held that Andrews must lose because with-
out expert testimony he could not prove that any negligence
on DuPont’s part proximately caused the truck to turn over.
Andrews’ expert based his calculations on data from the
wrong highway curve, so the district court struck his
testimony. As a result, no expert testimony supported
Andrews’ theory of the case and the judge granted summary
judgment.
Andrews took issue with that ruling and asked the
district court to reconsider the matter in his first motion to
alter or amend the judgment. Andrews claimed that
although his expert’s testimony had been stricken, he could
rely on the testimony of DuPont’s expert, Monick. According
to Andrews, Monick testified that if the truck had been
properly loaded, it would not have tipped at 35 mph. In fact,
Monick said nothing of the sort. What Monick said was that
stacked totes would tip only if the truck took the curve at 56
mph and “that if the subject curve was traversed at 35
mph . . . the truck would not have rolled over on the day of
the accident absent mechanical problems.” In other words,
even if the truck was improperly loaded, it would not have
rolled over at 35 mph.
10 No. 04-2882
Accordingly, the district court denied Andrews’ first
Rule 59(e) motion in its June 14 order. That order changed
nothing about the original summary judgment. The district
court originally granted judgment in favor of DuPont
because Andrews had no expert through whom to estab-
lish proximate cause. After considering Andrews’ misread-
ing of Monick’s testimony, the district court concluded
that Andrews still had no expert through whom to establish
proximate cause. The June 14 order was not a new judg-
ment.
Andrews misread the June 14 order to say that Monick’s
testimony conclusively established that Andrews was
traveling 56 mph. The order simply cannot be read that
way. That misreading is based on Andrews’ misunderstand-
ing of Monick’s testimony. The June 14 order did not adopt
as true anything that Monick said; it simply explained how
Monick’s testimony did not square with Andrews’ theory.
Andrews’ second Rule 59(e) was untimely and successive
and was properly denied.
AFFIRMED.
No. 04-2882 11
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-5-06