Opinion
Case No. A4-04-26.
November 7, 2005
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Before the Court is the Defendant's Motion for Summary Judgment filed on September 12, 2005. The Plaintiff has not responded to the motion. For the following reasons, the motion is granted.
I. BACKGROUND
The defendant, Weatherford U.S, L.P. (Weatherford), is a limited partnership that provides various tools to the oil and gas industry. On November 6, 2000, Weatherford leased tools to Wascana Oil Gas, Inc. (Wascana) a Canadian oil company. Wascana owns the Schaefer H-3 oil and gas well located in Mountrail County, North Dakota, near the town of Stanley, and hired Nabors Drilling USA, Inc. (Nabors Drilling) as an independent contractor to drill the well.
Under the original complaint, Weatherford Enterra, Inc. was the only named defendant. See Docket No. 1. However, on February 10, 2005, Barstad amended his complaint terminating Weatherford Enterra, Inc. and naming Weatherford U.S., LP as the sole defendant. See Docket No. 24.
On December 15, 2000, the plaintiff, Travis Barstad, was injured while working as a floor hand for Nabors Drilling assigned to Nabors Rig #462 to drill the Schaefer H-3 well. As part of his duties, Barstad was responsible for operating elevators used to remove pipe from the wells. The elevators utilized on Nabors Rig #462, which included the elevator operated by Barstad on that date, were leased to Wascana by Weatherford as part of the November 6, 2000, lease agreement. On the date of the injury, Barstad alleges that the elevator he was operating "unexpectedly released and failed causing the pipe being held by the elevators to fall striking [him] in the area of his left shoulder and causing serious personal injury." Complaint, ¶ 10.
On March 17, 2004, Barstad filed an action against Weatherford in United States District Court for the District of North Dakota. In the complaint, Barstad alleges negligence, breach of contract, product liability, and breach of warranty. On August 3, 2005, Barstad's attorney filed a motion to withdraw as counsel which was granted by the Court on August 8, 2005. See Docket No. 34. Barstad has continued with this action pro se.
II. STANDARD OF REVIEW
It is well-established that summary judgment is appropriate when, viewed in a light most favorable to the non-moving party, there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Graning v. Sherburne County, 172 F.3d 611, 614 (8th Cir. 1999). A fact is "material" if it might effect the outcome of the case and a factual dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The basic inquiry for purposes of summary judgment is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. Quick v. Donaldson Co., Inc., 90 F.3d 1372, 1376 (8th Cir. 1996). The moving party has the initial burden of demonstrating to the Court that there are no genuine issues of material fact. If the moving party has met this burden, the non-moving party cannot simply rest on the mere denials or allegations in the pleadings. Instead, the non-moving party must set forth specific facts showing that there are genuine issues for trial. Fed.R.Civ.P. 56(e). A mere trace of evidence supporting the non-movant's position is insufficient. Instead, the facts must generate evidence from which a jury could reasonably find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
III. LEGAL DISCUSSION
Barstad has provided no evidence in the face of summary judgment beyond the mere allegations contained in the complaint. As explained in Rule 56(e) of the Federal Rules of Civil Procedure, if the adverse party to a motion for summary judgment does not respond, by way of affidavits or as otherwise provided in Rule 56, summary judgment shall be entered against him or her. In light of the foregoing rules, Barstad's claims fail as a matter of law.
It appears that Barstad may have abandoned this action. While Barstad was still represented by counsel, there was discussion between the parties regarding a voluntary dismissal of the entire action. In the midst of those discussions, Barstad's attorney sought withdrawal. Since that time, no action has been taken by Barstad and no attorney has made an appearance on his behalf. See Affidavit of Gary R. Wolberg.
Barstad has also made no showing that the elevator in question was in any way defective by way of expert testimony. See Burgad v. Jack L. Marcus, Inc., 345 F. Supp.2d 1036, 1038-42 (D.N.D. 2004) (explaining that expert testimony is required for product liability claims predicated upon negligence and strict liability). Weatherford has submitted extensive evidence, in the form of affidavits and depositions, all suggesting that the elevator was free of any defect and in good working order at the time of the accident. See Defendant's Ex's 2-5; Affidavit of D. Michael Smith; Affidavit of Cecil Tharp. Barstad is unable to prove the essential elements of a negligence claim under North Dakota law, to include duty, breach, and causation. See Investors Real Estate Trust Properties, Inc. v. Terra Pacific Midwest, Inc., 686 N.W.2d 140, 144 (N.D. 2004) ("In a negligence action, the plaintiff has the burden of demonstrating (1) a duty, (2) breach of that duty, (3) causation, and (4) damages."). Barstad is also unable to maintain a third-person breach of contract claim arising out of a contract between Weatherford and Wascana. See Apache Corp. v. MDU Resources Group, Inc., 603 N.W.2d 891, 894 (N.D. 1999) ("To enforce a contract between two others, a third party must have been intended by the contracting parties to be benefited by the contract.").
Finally, by failing to respond to the Motion for Summary Judgment filed on September 12, 2005, Barstad has admitted that the motion is well-taken and should be granted. See Local Rule 7.1 (C) ("failure to file a brief by the adverse party may be deemed an admission that, in the opinion of counsel, the motion is well taken."). Therefore, the Court concludes, as a matter of law, that Barstad has failed to establish a factual or legal basis for any of the claims contained in the original complaint.
IV. CONCLUSION
For the reasons set forth above, the Defendant's Motion for Summary Judgment (Docket No. 39) is GRANTED. The Clerk shall enter judgment accordingly.