               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 14a0471n.06

                                  Case Nos. 13-5888; 13-5889
                                                                                   FILED
                         UNITED STATES COURT OF APPEALS                       Jul 01, 2014
                              FOR THE SIXTH CIRCUIT                      DEBORAH S. HUNT, Clerk



DANNY MOORE and TRACY MOORE (13-                 )
5888),                                           )
                                                 )
       Plaintiffs-Appellants,                    )      ON APPEAL FROM THE UNITED
and                                              )      STATES DISTRICT COURT FOR
                                                 )      THE WESTERN DISTRICT OF
WASTE MANAGEMENT OF MISSISSIPPI                  )      TENNESSEE
INC., d/b/a WASTE MANAGEMENT OF                  )
MISSISSIPPI-CORINTH (13-5889),                   )
                                                 )
       Intervening Plaintiff-Appellant,          )
v.                                               )
                                                 )
INDUSTRIAL MAINTENANCE SERVICE                   )
OF TENNESSEE, INC. and DESIGN-FAB,               )
INC.,                                            )
                                                 )
       Defendants-Appellees.

BEFORE: BOGGS, SILER, and GIBBONS, Circuit Judges.

       SILER, Circuit Judge. Danny Moore (“Moore”), Tracy Moore, and Waste Management

of Mississippi, Inc. (collectively “Plaintiffs”) appeal the district court’s grant of summary

judgment in favor of Defendant Design-Fab, Inc., formerly known as Industrial Maintenance

Service of Tennessee, Inc.1 The Moores sued Design-Fab under theories of negligence and res

ipsa loquitur for injuries Moore sustained when he attempted to remove a waste container that

1
 Design-Fab and Industrial Maintenance Service are separate defendants; however, because
Design-Fab is the former Industrial Maintenance Service, we will refer only to Design-Fab.
Case Nos. 13-5888; 5889, Moore, et al. v. Indus. Maint. Serv., et al.


Design-Fab had overloaded. Waste Management intervened because it had paid workers’

compensation for Moore’s injuries. On appeal, Plaintiffs argue that the district court erred in

granting Design-Fab’s motion for summary judgment. Plaintiffs further argue that the district

court erred in denying the Moores’ motion to modify the Federal Rule of Civil Procedure 16(b)

scheduling order. For the reasons stated below, we REVERSE the district court’s grant of

Design-Fab’s motion for summary judgment and REMAND for further proceedings; and we

AFFIRM its denial of the motion to modify the scheduling order but suggest that the district

court consider independently modifying the scheduling order on remand.

                                         BACKGROUND

   I.      Factual Background

        In June 2010, General Electric Company (“GE”) hired Design-Fab, an entity that

provides maintenance support for industrial facilities, to do excavation and concrete work for a

driveway repair on GE’s premises. Design-Fab ordered a temporary 30-yard open-top container

from Waste Management in order to complete the work. Prior to filling the container, Design-

Fab signed an agreement with Waste Management that stated in relevant part “Customer

[Design-Fab] agrees not to overload (by weight or volume)” the container. During the driveway

repair, Design-Fab filled the container with gravel, dirt, and asphalt.

        In July 2010, Design-Fab finished work at GE and called Waste Management to pick up

the container. Waste Management sent a driver to haul the container, but the driver found that the

container was too heavy to pick up, so Waste Management notified Design-Fab that it would

need to download, or take out, enough of the container’s contents so that it could be removed

from GE’s premises. Over the course of the next four months, Waste Management and Design-

Fab had multiple conversations about who would download the container and who would pay the



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Case Nos. 13-5888; 5889, Moore, et al. v. Indus. Maint. Serv., et al.


additional cost, but Design-Fab never downloaded the container, and the container remained on

GE’s premises. During this time, more material was added to the container, and GE admitted that

it may have contributed some of the additional waste. The container also gained significant

weight during its prolonged exposure to the elements, such as rain, which caused the contents to

absorb moisture and harden.

       In November 2010, Moore, who was employed by Waste Management, drove to GE’s

premises to remove a container other than the one used by Design-Fab. When he arrived, a GE

employee asked him to remove the overweight container. Moore knew by looking at the

container that it was significantly overloaded by weight; however, he did not know the exact

weight of the container because he was trained to use sight and feel to estimate weight and

lacked measurement tools. Moore decided to partially hoist the container onto his truck so that

he could open the container’s back tailgate and empty enough of the contents so it could be

hauled away. Moore hooked a cable from his truck to the container and began to hoist the

container, at which point the truck’s front tires left the ground and the truck began to rise in the

air. Moore was going to let slack off his winch to lower the truck and unhook the container;

however, the cable snapped before he could do so. The truck then violently crashed to the ground

and bounced many times, causing Moore to suffer a permanent and severe spinal injury that

rendered him totally disabled.

       The cable was able to support 69,200 pounds, or 34.6 tons, of weight before it might

snap. However, the container weighed 72,340 pounds, or 36.17 tons, at the time of the accident,

which, according to an independent contractor hired to download the contents after the incident,

was far in excess of the container’s appearance as a result of the contents hardening like cement.




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Case Nos. 13-5888; 5889, Moore, et al. v. Indus. Maint. Serv., et al.


Notably, when using other Waste Management containers prior to the incident, Design-Fab’s

containers weighed between 1.67 tons and 3.04 tons.

   II.      Procedural Background

         The Moores filed suit in the United States District Court for the Western District of

Tennessee, alleging theories of negligence and res ipsa loquitur against Design-Fab and GE.

Waste Management intervened to protect its workers’ compensation lien. Design-Fab asserted

the affirmative defense of comparative fault. Plaintiffs eventually settled their claims against GE,

thus removing GE from the litigation.

         On January 26, 2012, a magistrate judge issued a Rule 16(b) scheduling order. Pursuant

to the order, the Moores were required to disclose their expert-witness information by October 9,

2012. However, on December 7, 2012, almost two months after their expert-witness disclosure

deadline expired, the Moores moved the district court to modify the scheduling order so that they

could submit expert medical, vocational, and psychiatric evaluations taken after the deadline.

They stated that the expert evaluations could not be obtained until Moore reached maximum

medical improvement (“MMI”), which occurred on September 17, 2012.

         The magistrate judge denied their motion, finding that the Moores had not demonstrated

the requisite good cause to amend the scheduling order. The magistrate judge incorrectly stated

that Moore reached MMI on November 19, 2011, and found that this gave the Moores almost a

year to meet the discovery deadline. The magistrate judge also concluded that “[t]he better

practice for [the Moores] would have been to make a timely request for extension of the

scheduling order before this deadline expired, and as such [there is] no good cause to permit

enlarging this scheduling order.” The magistrate judge further found that modification would

prejudice Design-Fab, which properly and timely disclosed its expert, because it “would sanction



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Case Nos. 13-5888; 5889, Moore, et al. v. Indus. Maint. Serv., et al.


such a delaying strategy which unfairly advantages the [Moores] and causes [Design-Fab]

additional time and expense[] to include possibly additional expert witnesses.” The magistrate

judge did, however, make an exception so the Moores could disclose either a doctor who was

seen for anxiety and depression or Dr. Randall Moskovitz, a psychiatrist. The Moores thus

disclosed Dr. Moskovitz as an expert they intended to call at trial.

       The Moores moved the district court to alter or amend the magistrate judge’s order. They

argued that the magistrate judge erred in relying on a doctor’s note that incorrectly stated

Moore’s MMI date, that the magistrate judge should have allowed the extension because they

had less than two months to receive expert evaluations and take depositions, and that the

magistrate judge’s refusal to amend prejudiced their case. In affirming the magistrate judge’s

order, the district court found that the magistrate judge relied on independent evidence of the

Moores’ lack of requisite due diligence because the magistrate judge had recognized in a

subsequent order that he cited an incorrect MMI date and had reiterated that there was “sufficient

other, independent evidence of lack of diligence which included the failure to timely move for

modification of the scheduling order.”

       Design-Fab filed a motion for summary judgment, arguing that it was not negligent

because it did not overload the container under the terms of the agreement; it could not foresee

that Moore would lift the container in violation of Waste Management policy; it was not the

actual or legal cause of Moore’s injuries; and Moore was at least 50% responsible for his

injuries. In response, the Plaintiffs argued that material issues of disputed fact existed as to each

of Design-Fab’s arguments. The district court granted Design-Fab’s motion for summary

judgment and dismissed the case, finding that:

       [a]lthough . . . there are disputed issues of material fact on whether Design-Fab
       owed a duty to Moore, whether Design-Fab’s actions were the actual cause of

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Case Nos. 13-5888; 5889, Moore, et al. v. Indus. Maint. Serv., et al.


        Moore’s injuries, and whether Design-Fab’s actions were the proximate cause of
        Moore’s injuries, . . . as a matter of law, Moore was more at fault for his injuries
        than Design-Fab, and as such GRANTS Design-Fab’s Motion for Summary
        Judgment . . . .

                                  DIVERSITY JURISDICTION

        This matter was filed in federal court pursuant to 28 U.S.C. § 1332 (diversity

jurisdiction). “It is a long-recognized principle that federal courts sitting in diversity ‘apply state

substantive law and federal procedural law.’” Shady Grove Orthopedic Assocs., P.A. v. Allstate

Ins. Co., 559 U.S. 393, 417 (2010) (quoting Hanna v. Plumer, 380 U.S. 460, 465 (1965)). When

deciding issues of substantive law, we apply the law of the state’s highest court. Garden City

Osteopathic Hosp. v. HBE Corp., 55 F.3d 1126, 1130 (6th Cir. 1995). “If, however, the state’s

highest court has not decided the applicable law, then [we] must ascertain the state law from all

relevant data,” which includes the state’s appellate court decisions if we are not convinced that

the state’s highest court would hold otherwise. Id. (internal quotation marks omitted).

                                           DISCUSSION

   I.      Motion for Summary Judgment

        The Plaintiffs argue that the district court violated fundamental summary judgment

principles by improperly weighing the evidence; failing to consider critical, relevant evidence;

failing to view the evidence in the light most favorable to the non-movant; failing to draw all

reasonable inferences in favor of the non-movant; making an allocation of fault while duty and

proximate cause were in dispute; failing to consider GE’s comparative fault; failing to consider

Design-Fab’s fault in refusing to correct the dangerous condition it created; and finding that

Moore was at least 50% or more at fault for his injuries.

        Design-Fab argues that the district court correctly concluded that it was entitled to

summary judgment under Tennessee’s comparative fault principles because Moore acted

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Case Nos. 13-5888; 5889, Moore, et al. v. Indus. Maint. Serv., et al.


unreasonably in knowingly confronting the risk of hoisting an overweight container in violation

of company safety policies, because reasonable minds could only conclude that Moore was 50%

or more at fault, and because there were not genuine issues of material fact. It further argues that

the district court did not err by not expressly considering and ruling on GE’s comparative fault.

         “We review a [district court’s] grant of summary judgment de novo, construing the

evidence and drawing all reasonable inferences in favor of the nonmoving party.” Hirsch v. CSX

Transp., Inc., 656 F.3d 359, 362 (6th Cir. 2011). Under Tennessee’s modified comparative fault

system in negligence cases, “a plaintiff who is less than [50%] at fault may recover damages in

an amount reduced by the percentage of fault assigned to the plaintiff.” Ali v. Fisher, 145 S.W.3d

557, 561 (Tenn. 2004).

         “In the majority of cases, . . . comparison and allocation of fault issues are properly left to

the jury.” Prince ex rel. Bolton v. St. Thomas Hosp., 945 S.W.2d 731, 735 (Tenn. Ct. App. 1996)

(citing Eaton v. McLain, 891 S.W.2d 587, 590 (Tenn. 1994)). Summary judgment may be

granted in the defendant’s favor if, viewing the evidence in the light most favorable to the

plaintiff, reasonable minds could not differ that the plaintiff’s fault was equal to or greater than

that of the defendant or defendants. Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 91-92 (Tenn.

2000).

         Applying these comparative fault and summary judgment principles, we hold that

reasonable minds could differ as to whether Moore’s fault was equal to or greater than that of all

tortfeasors because the district court’s allocation of fault did not consider the relative fault of

settling defendant GE and because there are genuine disputes as to material facts. Therefore, we

reverse the district court’s grant of Design-Fab’s motion for summary judgment and remand for

further proceedings. Because we are remanding on these grounds, we need not reach Plaintiffs’



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Case Nos. 13-5888; 5889, Moore, et al. v. Indus. Maint. Serv., et al.


remaining arguments as to why the district court’s grant of summary judgment should be

reversed.

            A. Allocation of Fault Between Multiple Tortfeasors

       Under Tennessee law, “in cases of multiple tortfeasors, plaintiff will be entitled to

recover so long as plaintiff’s fault is less than the combined fault of all tortfeasors.” McIntyre v.

Balentine, 833 S.W.2d 52, 58 (Tenn. 1992) (emphasis added). Where a defendant argues that a

plaintiff’s fault precludes recovery, “[i]f the evidence is evaluated in the light most favorable to

the plaintiff and reasonable minds could not differ that [his] fault was equal to or great[er] than

that of the defendants, summary judgment in the defendant’s favor may be granted.” Staples,

15 S.W.3d at 91-92.

       The Tennessee Supreme Court has recognized that “[t]he purpose of comparative fault

under McIntyre is to link [defendants’] liability to [their] degree of fault in causing a plaintiff’s

damages,” which requires consideration of all relevant parties. McNabb v. Highways, Inc.,

98 S.W.3d 649, 654 (Tenn. 2003). It found that, in a case where the plaintiff filed separate

actions, the defendant in one action was not prevented from asserting comparative fault and

arguing that fault should be allocated to defendants of the separate action. Id. at 654-55. The

court then acknowledged that the parallel situation of a plaintiff’s suing two defendants in the

same action and settling with one would not affect the consideration of the settling defendant in

determining comparative fault. Id. at 655 (“A plaintiff’s settling with one co-defendant under the

comparative fault doctrine[] does not establish a basis for dismissal as to the remaining

defendant. In these cases, the defendant is not deprived of the opportunity to have fault

apportioned against [the settling defendant].”).




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Case Nos. 13-5888; 5889, Moore, et al. v. Indus. Maint. Serv., et al.


       In granting Design-Fab’s motion for summary judgment, the district court concluded that

Tennessee’s modified comparative negligence doctrine precluded Moore’s recovery and held

that “Moore was more at fault for his injuries than Design-Fab.” The court found that “Moore’s

injuries were both more easily foreseeable and more easily preventable by Moore than they were

by Design-Fab, so Moore had a higher duty to ensure his own safety than did Design-Fab.” The

court did not mention or consider GE’s fault in reaching its conclusion.

       Therefore, the district court did not properly apply Tennessee law because it failed to

consider GE’s liability when determining the comparative fault of Moore and Design-Fab. Just

as a defendant has the right to argue that fault should be allocated to non-parties, Plaintiffs have

the right to have all tortfeasors considered, including settling defendant GE, in the allocation of

fault. Without considering GE’s liability, the court could not properly determine if Moore was

more than 50% at fault and thus precluded from recovering against Design-Fab because it could

not have accurately linked the parties’ degrees of liability to their percentages of fault.

           B. Genuine Disputes of Material Facts

       A district court may not grant summary judgment if there is a genuine dispute as to any

material fact. See FED. R. CIV. P. 56(a). First, there is a genuine dispute of material fact as to

whether Design-Fab knew not to overload the container by weight. The district court found that

Design-Fab was never informed of a specific weight limit and thus found this fact was not in

dispute.2 However, Plaintiffs offered evidence to the contrary. Waste Management employee

Greg Miley testified in his deposition that he “definitely” told Design-Fab not to overload the

2
  Dale Cooper, the president of Design-Fab, testified in his deposition that he understood
overfilling the container to mean by volume only and that it never occurred to him to worry
about weight. He stated that he was never notified of a weight limit on the container and that he
had previously rented that type of container from Waste Management without knowing a weight
limit. He further stated that the containers, including the container in question, did not indicate
their weight limit.
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Case Nos. 13-5888; 5889, Moore, et al. v. Indus. Maint. Serv., et al.


container by weight, and Design-Fab president Dale Cooper ultimately agreed in his deposition

that the container was overloaded by weight. Further, Waste Management district manager Kevin

Shackelford testified that salespersons are trained to tell the customer how much they can fill the

container based on the type of material. Shackelford further stated that he asked Miley if he

followed this procedure and that Miley said that he could not remember about this specific

instance but that it was his common practice to do so on every account. Plaintiffs also offered

evidence that Design-Fab knew or should have known not to overfill the container despite not

knowing a specific weight because Design-Fab signed the contract prohibiting it from overfilling

the container by weight and because Design-Fab had previously rented containers from Waste

Management, which it only filled to a fraction of what it filled this container. Further, Miley

testified that, in his opinion, contractors like Design-Fab would know not to fill a container all

the way with concrete, dirt, asphalt, and aggregate.

       Second, there is a genuine dispute of material fact as to whether Moore’s actions in

partially hoisting the container constituted common practice. The district court found that Waste

Management’s rule book did not allow employees to partially hoist containers and that Moore

acted in contradiction to the rule book by doing so. The court further found that “[w]hether or not

Moore acted consistently with common practice is immaterial to whether or not he was trained

and aware of a company policy contained in the Rule Book.” However, Plaintiffs offered

evidence to dispute these findings. Waste Management, which employed Moore from 2002

through the incident in 2010, contained its protocol in a rule book and trained its employees

according to the contents. The rule book required employees to estimate the weight of the

container prior to loading it. It also stated that, when hoisting a container, if the front wheels of

the employee’s vehicle leave the ground, the container is too heavy and the employee cannot



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Case Nos. 13-5888; 5889, Moore, et al. v. Indus. Maint. Serv., et al.


hoist it. But Moore testified that he had employed the partial hoisting method for downloading a

container, that Waste Management had previously asked him to perform this procedure with

other containers, that it was common practice at Waste Management to do so, and that Waste

Management found the practice acceptable. Shackelford also testified that it was not improper

for an employee to hoist a container to estimate its weight. Also, the procedure described in the

rule book itself indicates that the proper method for determining if a container is too heavy is to

begin to hoist a container, just as Moore did here.

         Finally, there is a genuine dispute of material fact as to whether Moore appreciated that

the container’s weight posed a serious risk of injury. Moore had no way of determining how

overweight the container was; he could only estimate based on sight and feel. Even so, his

approximations could not be accurate because the weight of the container was far in excess of its

appearance as a result of its exposure to the elements for months. Furthermore, Moore testified

that he did not foresee that the cable was going to break and that he was going to get hurt.

         Therefore, because there are disputed issues of material fact, the district court improperly

granted Design-Fab’s motion for summary judgment. As a result, we reverse the district court

and remand for further proceedings.

   II.      Rule 16(b) Scheduling Order

         Plaintiffs argue that the district court erred in denying the Moores’ motion to modify the

Rule 16(b) scheduling order because they made the requisite showing of good cause and because

Design-Fab would not have suffered any prejudice as a result of the modification. They further

argue that the magistrate judge’s basis for denying the motion was factually incorrect because he

relied on an incorrect MMI date and that he thus should be reversed.




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Case Nos. 13-5888; 5889, Moore, et al. v. Indus. Maint. Serv., et al.


       We review a district court’s decision whether to amend a Rule 16(b) scheduling order for

abuse of discretion. Andretti v. Borla Performance Indus., Inc., 426 F.3d 824, 830 (6th Cir.

2005) (granting motion to amend). A judge may modify a Rule 16(b) scheduling order for “good

cause.” FED. R. CIV. P. 16(b)(4). “The primary measure of Rule 16’s ‘good cause’ standard is the

moving party’s diligence in attempting to meet the case management order’s requirements.” Inge

v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir. 2002) (quoting Bradford v. DANA Corp.,

249 F.3d 807, 809 (8th Cir. 2001)). “Another relevant consideration is possible prejudice to the

party opposing the modification.” Id.

       Plaintiffs fail to demonstrate good cause for modification. Before the magistrate judge

and the district court, the Moores argued that they were unable to schedule expert evaluations by

the deadline as a result of Moore’s reaching MMI on September 20, 2012, only 20 days before

the deadline of October 9. However, they did not explain why the 20-day window was

insufficient time within which to request an extension.

       Further, the district court properly observed that the magistrate judge relied on sufficient

independent evidence of lack of diligence, despite initially citing the wrong MMI date. The

magistrate judge’s and the district court’s decisions both properly rested on the fact that the

Moores did not timely move for modification, despite having ample time between learning they

could not meet the deadline and the expiration of the deadline.

       Conversely, Design-Fab is able to demonstrate possible prejudice if the modification

were granted. It timely disclosed its expert without the benefit of knowing what the Moores’

experts would have said. Thus, the Moores were able to rely on Design-Fab’s expert in shaping

their trial strategy, while Design-Fab lost this right. Further, if the Moores had been granted an

extension, Design-Fab would have had to expend more time, money, and resources to rebut the



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Case Nos. 13-5888; 5889, Moore, et al. v. Indus. Maint. Serv., et al.


Moores’ newly-disclosed expert evaluations. Consequently, the magistrate judge correctly found

that the modification would have unfairly advantaged the Moores at the expense of Design-Fab.

        Therefore, the district court did not abuse its discretion by denying the Moores’ motion to

modify the Rule 16(b) scheduling order. Andretti, 426 F.3d at 830. However, because we are

reversing the district court’s grant of Design-Fab’s motion for summary judgment, we suggest

that the court consider modifying the scheduling order to accommodate the parties as they

proceed to trial.

                                         CONCLUSION

        For the reasons stated above, we REVERSE the district court’s grant of Design-Fab’s

motion for summary judgment and REMAND for further proceedings; and we AFFIRM its

denial of the motion to modify the Rule 16(b) scheduling order, but suggest that the district court

consider independently modifying the scheduling order on remand.




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