Andrews v. E.I. Du Pont De Nemours and Co., 04-2882.

• Decision Date: 05 May 2006
• Docket Number: No. 04-2882.,04-2882.
• Citation: 447 F.3d 510
• Parties: 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.
• Court: U.S. Court of Appeals — Seventh Circuit

447 F.3d 510

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.

No. 04-2882.

United States Court of Appeals, Seventh Circuit.

Argued September 7, 2005.

Decided May 5, 2006.

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Stephen T. Fieweger, Andrew M. Rink (argued), Katz, Huntoon & Fieweger, Moline, IL, for Plaintiff-Appellant.

Raymond M. Ripple (argued), E I Du Pont De Nemours & Company, Wilmington, DE, Kevin L. Halligan, Bush, Motto, Creen & Koury, Davenport, IA, Jason J. O'Rourke, Lane & Waterman, Rock Island, IL, for Defendants-Appellees.

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 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 district 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). Andrews 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. 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., 199 Ill.App.3d 821, 145 Ill.Dec. 810, 557 N.E.2d 580, 588 (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, 113 S.Ct. 2786, 125 L.Ed.2d 469 (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 (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 inappropriate, 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 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 district 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 testimony (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 appealing). 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.

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, 58 S.Ct. 586, 82 L.Ed. 845 (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 different 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 preponderance of the evidence that the stakes are at least $75,000. McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936) ("[W]here [jurisdictional facts] are not . . . challenged, the court may still insist that the...