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Lowery v. National Belt Service West, Inc.

United States District Court, N.D. Alabama, Western Division

November 25, 2014



JOHN E. OTT, Chief Magistrate Judge.

This case is before the court on Defendants Actuant Corporation and Northco Corporation's motion for summary judgment. (Doc. 14). The motion has been fully briefed (docs. 18 and 19). The parties have consented to the full jurisdiction of the undersigned pursuant to 28 U.S.C. § 636(c). (Doc. 36). For the reasons stated more fully below, the court finds that Defendants' motion for summary judgment is due to be granted.


On August 15, 2011, Plaintiff was working as a belt installer on the evening shift at the facility formerly known as Jim Walter Resources, #4 Mine. (Doc. 1-1 at ¶5). Plaintiff alleges that as he was jacking up the belt line roller to achieve the supervisor-directed height of 8 feet, the boom drive on the belt assembly, specifically, the boom drive jacks, malfunctioned, causing the boom drive to fall on Plaintiff. ( Id. ) The Mine Safety and Health Administration (MSHA) was called to investigate the accident. Plaintiff was aware of the investigation; however, no one from MSHA contacted or interviewed him about the accident. (Doc. 18-1 at 2).

After the accident, Plaintiff hired attorney Frank Cauthen, Jr. to assist him with his worker's compensation claim. (Doc. 18-1 at 3). A final Worker's Compensation Settlement Order was entered on August 2, 2012, and a Satisfaction of Judgment was filed by Plaintiff on the same day. (Doc. 1-6 at 5-7). To the best of Plaintiff's knowledge, Mr. Cauthen did not pursue any other claims against any other parties on his behalf. Further, during the course of his worker's compensation claim, Plaintiff did not discuss the MSHA investigation or any issue concerning who manufactured the belt system that was involved in his accident with Mr. Cauthen. (Doc. 18-1 at 3).

On August 14, 2013, Plaintiff hired attorney James King to pursue the claims presented in this case. (Doc. 18-1 at 1, Doc. 18-2 at 1). At that time, Plaintiff told Mr. King that he believed that National Belt Service was the manufacturer and/or supplier of the belt system/boom drive that caused his injuries. (Doc. 18-1 at 1). This was based on his understanding that all of the belt systems used in the No. 4 Mine were manufactured or supplied by either National Belt or Continental Conveyor. (Doc. 18-1 at 1-2). Plaintiff further states that, in his experience, National Belt Systems are manufactured with red rollers and frames and that other belt systems, such as those made by Continental Conveyor, are either grayish, yellow, or orange. ( Id. at 2). To the best of his recollection at the time, Plaintiff recalled that the belt system that caused his injuries was red and that National Belt's name was identified on the plate attached to the side of the belt assembly. ( Id. at 1-2).

The day that he was retained, Mr. King sent letters to National Belt Service and Plaintiff's employer, Jim Walter Resources. (Doc. 18-2 at 2-4). In his letter to National Belt Service, Mr. King informed the company of Plaintiff's claim that its belt system had caused his injuries. ( Id. at 2). In his letter to Jim Walter Resources, Mr. King stated that he would need its "help in identifying the exact product regarding this complaint" and specifically asked that it provide him with information properly identifying the product(s) involved in the accident. Mr. King further asked that Jim Walter Resources provide him with Plaintiff's personnel file and any and all investigations and accident reports generated or obtained by Jim Walter Resources.[1] ( Id. at 4).

That same day, August 14, 2013, Plaintiff filed his initial Complaint in the Circuit Court of Tuscaloosa County, Alabama. (Doc. 1-1). That initial Complaint named National Belt Service Inc. as Defendant along with 10 Fictitious Defendants. ( Id. ) The Complaint alleges the following three claims against all Defendants: (1) Negligence/Wantonness, (2) Alabama Extended Manufacturers Liability Doctrine (AEMLD), and (3) Failure to Warn. (Doc. 1-1).

On October 28, 2013, counsel for National Belt Service filed a Freedom of Information Act request with MSHA seeking all documents related to Plaintiff's accident. (Doc. 14-1 at 2). In response, MSHA provided counsel with 75 pages of documents. National Belt Service's counsel in turn provided these documents to Plaintiff's attorney, Mr. King, on December 5, 2013. (Doc. 18-2 at 2). During his review of these documents, Mr. King noticed for the first time that National Belt may not have been the manufacturer of the belt system at issue in this case and that Northco may have been the manufacturer/supplier of the overall belt system and that the screwjack component may have been a Simplex brand jack. ( Id. at 2-3). Mr. King met with Plaintiff on December 13, 2013, to see if he could verify the above information. When Plaintiff was unable to do so, Mr. King had an associate investigate the issue further. ( Id. at 3). Mr. King's office was closed from December 23, 2013, through January 8, 2014. On January 16, 2014, Mr. King's associate reported to him that the manufacturer of the Simplex Jack appeared to be Actuant and that Northco was the likely manufacturer of the overall belt system. ( Id. )

On February 19, 2014, Plaintiff filed a Substitution of Defendants in the state court. (Doc. 1-2). That pleading formally substituted Defendants Actuant and Northco for Fictitious Defendants 2-9. ( Id. ) On March 3, 2014, Defendant Veyance Industrial Services, Inc., d/b/a National Belt Service was dismissed without prejudice after the parties filed a joint stipulation of dismissal requesting the same. (Doc. 1-4). Defendants Actuant and Northco were served on March 17, 2014, and they timely removed the case to this court on April 4, 2014. (Docs. 1, 1-5). On August 21, 2014, Defendants moved for summary judgment on the grounds that Plaintiff's claims against them are barred by the applicable two year statute of limitations. (Doc. 14).


Pursuant to Rule 56 of the FEDERAL RULES OF CIVIL PROCEDURE, party is authorized to move for summary judgment on all or part of a claim or defense asserted either by or against the movant. Under that rule, the "court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). The party moving for summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, " relying on submissions "which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970). Once the moving party has met its burden, the nonmoving party must "go beyond the pleadings" and show that there is a genuine issue for trial. Celotex Corp., 477 U.S. at 324.

Both the party "asserting that a fact cannot be, " and a party asserting that a fact is genuinely disputed, must support their assertions by "citing to particular parts of materials in the record, " or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." FED. R. CIV. P. 56(c)(1)(A), (B). Acceptable materials under Rule 56(c)(1)(A) include "depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." In its review of the evidence, a court must credit the evidence of the non-movant and draw all justifiable inferences in the non-movant's favor. Stewart v. Booker T. Washington Ins., 232 F.3d 844, 848 (11th Cir. 2000). At ...

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