United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 09-3144
                                   ___________

Walter Huggins,                        *
                                       *
            Appellant,                 *
                                       * Appeal from the United States
      v.                               * District Court for the Eastern
                                       * District of Missouri.
FedEx Ground Package System, Inc.; *
Teton Transportation, Inc.; Swanston   *
Equipment Company,                     *
                                       *
            Appellees.                 *
                                  ___________

                             Submitted: November 10, 2009
                                Filed: January 19, 2010
                                 ___________

Before GRUENDER, ARNOLD, and BENTON, Circuit Judges.
                          ___________

ARNOLD, Circuit Judge.

      Esteban Gutierrez was driving a tractor-trailer bearing the insignia of FedEx
Ground Package System, while Walter Huggins slept in the back of the truck;
Mr. Huggins was injured when Mr. Gutierrez collided with the tractor-trailer in front
of him, which Tony Johnston, an employee of Teton Transportation, was driving.
Shortly before the collision, as he topped a hill, Mr. Johnston saw a Swanston
Equipment pickup truck traveling slowly down the left shoulder of the highway and
displaying a sign that read, "Left Lane Closed Ahead." Mr. Johnston slowed his truck,
and, when the vehicle immediately in front of him came to a sudden stop, he applied
his brakes and stopped about ten feet behind it. The Gutierrez tractor-trailer then
collided with the back of the Teton vehicle. Mr. Huggins brought an action in
Missouri state court for damages arising out of the collision and Teton removed it to
federal district court.

       The district court granted summary judgment to Teton and FedEx but denied
summary judgment to Swanston. After obtaining an order designating the rulings in
favor of Teton and FedEx as final judgments, see Fed. R. Civ. P. 54(b), Mr. Huggins
appealed. We dismissed his appeal sua sponte for lack of appellate jurisdiction
because of the unresolved claims against Swanston. Huggins v. FedEx Ground
Package Sys., Inc., 

(8th Cir. 2009). On remand, the district court
granted Mr. Huggins's motion to dismiss his claims against Swanston without
prejudice and Mr. Huggins again appealed, challenging the orders granting summary
judgment to Teton and FedEx on his negligence claims. We conclude that we have
jurisdiction and we affirm the judgment in favor of Teton. But we reverse the
judgment in favor of FedEx and remand the case for further proceedings.

                                            I.
       In its motion for summary judgment, Teton contended that Mr. Huggins could
not make out a negligence claim because he could not show that Teton's alleged
negligence was a proximate cause of his injuries. See Teichman v. Potashnick
Constr., Inc., 

, 398 (Mo. 1969). (The parties agree that Missouri
substantive law applies in this case.) In support of its motion, Teton relied on the part
of Mr. Johnston's deposition testimony that described a straightforward rear-end
collision: he drove over the hill in the right westbound lane, saw the left-lane closure
sign, eventually stopped in that lane, and was hit from behind. Mr. Huggins filed a
timely response, relying on another part of Mr. Johnston's account to argue that the
Teton driver contributed to the collision by engaging in a "cat-and-mouse game" with
Mr. Gutierrez. Mr. Johnston had attested that the two trucks had traveled together for
some time before the collision occurred. He had further declared that, during this

                                          -2-
period, Mr. Gutierrez had tried to pass Mr. Johnston's tractor-trailer about five times
and attempted to engage another driver to assist him, but Mr. Johnston did not allow
him to pass and once slightly exceeded the speed limit to prevent Mr. Gutierrez from
passing him. The district court concluded, however, that under Missouri law these
earlier activities could not be a proximate cause of the rear-end collision, and Mr.
Huggins does not challenge that determination on appeal.

       Mr. Huggins maintains instead that the district court erred by denying his
untimely motion to supplement his response to Teton's summary judgment motion.
The court, after conferring with the parties, had previously extended its deadline for
dispositive motions, including motions for summary judgment, and had ordered the
opposing party to file any desired response to a dispositive motion within thirty days
after such a motion was filed (thus providing ten more days for filing a response than
did the local rules, see E.D. Mo. R. 7-4.01(B) (2006)). After Mr. Huggins filed his
timely response to Teton's motion for summary judgment, FedEx filed its response to
a summary judgment motion that Mr. Huggins later filed and it attached
Mr. Gutierrez's affidavit. In the affidavit, Mr. Gutierrez attested that the Teton truck
"cut in front of" him "[i]mmediately prior to the accident," thereby preventing him
"from having sufficient stopping distance to avoid the collision." About a week after
FedEx filed the affidavit and two weeks after the time ran for responding to Teton's
motion, Mr. Huggins moved to supplement the record relevant to Teton's motion by
incorporating Mr. Gutierrez's affidavit into his response. Teton, in turn, asked the
court either to deny Mr. Huggins's request to supplement the record or to allow Teton
additional time to depose Mr. Gutierrez pursuant to Fed. R. Civ. P. 56(f): Under that
rule, a district court may grant time for a party opposing summary judgment to take
a deposition if that party "shows by affidavit that, for specified reasons, it cannot
present facts essential to justify its opposition."

        Some three weeks later, Teton and the other defendants moved to continue the
trial and to amend the court's case management order, asserting, among other things,

                                          -3-
that the case had been delayed because of disputes about diversity jurisdiction, that
Mr. Huggins had only recently completed his medical treatment, and that the parties
were trying to "coordinate a date" for deposing Mr. Gutierrez. The court granted the
motion in part, extending discovery and setting a later trial date, but it did not change
the deadlines for dispositive motions or for responses to those motions. None of the
parties deposed Mr. Gutierrez before the new discovery deadline passed. About a
month later, the court denied Mr. Huggins's motion to supplement the record and
granted Teton's summary judgment motion. Huggins v. Federal Express Corp.,
No. 06-CV-01283, 

(E.D. Mo. April 16, 2008). Though the court
acknowledged the "potential significance of Gutierrez's testimony," it declined to
consider the affidavit because Mr. Huggins obtained it after what was then the
deadline for discovery, as well as the deadline for filing dispositive motions, had
passed. The court explained that it "appear[ed] that Plaintiff opted against timely
interviewing, deposing, and/or securing the affidavit of, Gutierrez," and that
Mr. Huggins should "not be permitted to take unfair advantage of the presumably
accessible, subject evidence – presented by FedEx after the close of discovery." In
support of its conclusion that the evidence had been accessible, the court cited
Rule 56(f), on which Mr. Huggins could have relied if the evidence had been
unavailable to him. Huggins, 

at *3 n.2.

       Although Rule 56 provides deadlines for filing summary judgment materials,
the district courts have broad discretion to manage their dockets and address particular
circumstances by enforcing local rules and by setting enforceable time limits. See
Reasonover v. St. Louis County, Mo., 

, 579 (8th Cir. 2006); see also Sipe
v. Workhorse Custom Chassis, LLC, 

, 531-32 (8th Cir. 2009). Here, Mr.
Huggins does not dispute that he moved to supplement the summary judgment record
two weeks after his response to Teton's summary judgment motion was due, and after
he had already filed a timely response without indicating any need for additional time.




                                          -4-
       Under Fed. R. Civ. P. 6(b)(1), "[w]hen an act may or must be done within a
specified time, the court may, for good cause, extend the time ... on motion made after
the time has expired if the party failed to act because of excusable neglect." The
district court has discretion to admit or exclude materials under this rule, and its
"refusal to accept untimely filed materials will not be reversed for an abuse of
discretion unless the proponent of the materials has made an affirmative showing of
excusable neglect." African American Voting Rights Legal Def. Fund, Inc. v. Villa,

, 1350 (8th Cir. 1995) (citing Lujan v. National Wildlife Fed'n, 

, 894-98 (1990)), cert. denied, 

(1996); see also DG&G, Inc. v.
FlexSol Packaging Corp. of Pompano Beach, 

, 826 (8th Cir. 2009). We
conclude that the district court did not abuse its discretion here because Mr. Huggins
failed to make an "affirmative showing of excusable neglect."

       Interpreting the term "excusable neglect" in a bankruptcy rule derived from
Rule 6(b), the Supreme Court has held that "neglect" does not require a showing that
the party was without fault but encompasses "inadvertence, mistake, or carelessness,"
though the neglect will not necessarily be "excusable." Pioneer Inv. Services Co. v.
Brunswick Associates Ltd. Partnership, 

, 388, 391 (1993); see Noah v.
Bond Cold Storage, 

, 1045 (8th Cir. 2005). But the untimeliness here
was not the result of mistake or carelessness. As Mr. Huggins's counsel confirmed at
oral argument, he consciously elected not to depose Mr. Gutierrez for strategic
reasons: On hearing Mr. Johnston attest that Mr. Gutierrez, after repeatedly trying to
pass him, had been angrily cursing at Mr. Johnston over his CB radio shortly before
he slammed into the back of the Mr. Johnston's truck, Mr. Huggins's attorney decided
not to preserve Mr. Gutierrez's testimony. Since Mr. Gutierrez had relocated to
Hawaii, Mr. Huggins's counsel reasoned that FedEx might have difficulty producing
him at trial to counter Mr. Johnston's negative characterization of Mr. Gutierrez's
behavior. The district court thus did not clearly err in finding that Mr. Huggins
consciously "opted against" timely obtaining Mr. Gutierrez's testimony.



                                         -5-
       We reject Mr. Huggins's contention that the district court's order granting
additional time for discovery should alter the outcome. As we have explained, the
court did not change the date for filing and responding to dispositive motions, it
merely gave the parties additional time to conduct discovery before trial in a case that
had been pending for over two years. We do not believe that the court's order
distinguishes our case from Villa and others holding that a district court does not
abuse its discretion by denying leave to file supplementary matter out of time where
the proponent fails to show excusable neglect.

                                        II.
                                        A.
      Mr. Huggins contends that the district court erred in entering summary
judgment for FedEx based on its conclusion that the evidence could not support a
finding that Mr. Gutierrez was a FedEx employee and so his negligence could not be
imputed to FedEx. Reviewing the evidence and inferences from it favorably to
Mr. Huggins, as we must, Ridpath v. Pederson, 

, 935 (8th Cir. 2005), we
conclude that Mr. Huggins presented sufficient evidence to avoid summary judgment.

       Because Mr. Huggins based his negligence claim against FedEx on the doctrine
of respondeat superior, he had to establish that the driver, Mr. Gutierrez, was a FedEx
employee. Under Missouri law, the resolution of this issue depends upon the
particular facts of each case and is usually a question for the jury, although it may be
decided as a matter of law when the material facts are undisputed and "only one
reasonable conclusion can be drawn" from those facts. Johnson v. Bi-State
Development Agency, 

, 867 (Mo. 1990), superseded on other grounds,
State ex rel. Metropolitan St. Louis Sewer Dist. v. Sanders, 

(Mo.
1991); Ascoli v. Hinck, 

, 594-95 (Mo. Ct. App. 2008).




                                          -6-
       The "principal factors" that Missouri courts routinely consider in determining
whether one acting for another is an employee or an independent contractor for
purposes of respondeat superior liability are set out in § 220(2) of the Restatement
(Second) of Agency. Lee v. Pulitzer Pub. Co., 

, 631 (Mo. Ct. App.
2002); see Johnson v. Pacific Intermountain Exp. Co., 

, 242 n.9
(Mo. 1983); Dean v. Young, 

, 553 (Mo.1965). The very first of these
considerations is "the extent of control which, by the [relevant] agreement, the master
may exercise over the details of the work," Restatement (Second) of Agency
§ 220(2)(a), and the Missouri Supreme Court has frequently emphasized the
importance of the "right to control the conduct of another in the performance of an
act," describing it as the "touchstone" for determining whether a master-servant
relationship exists, see e.g., J.M. v. Shell Oil Co., 

, 764 (Mo. 1996).

       In support of its summary judgment motion, FedEx relied on a "Linehaul
Contractor Operating Agreement" under which Jon Ireland (who did business as ANI
Logistics) agreed to provide certain shipping and tractor leasing services to FedEx.
(Although RPS, Inc., originally contracted with ANI, FedEx later acquired RPS and
the relevant contract, and thus we refer to FedEx as the contracting party.) The parties
agree that Mr. Gutierrez drove an ANI tractor and was an ANI operator as that term
is used in the agreement, and although Mr. Gutierrez was not a party to the agreement,
some of the contract's provisions address the role of ANI's drivers.

       Based on the agreement, the district court concluded that the parties intended
to disclaim any employment relationship between ANI's employees and FedEx, that
FedEx did not have the right to control Mr. Gutierrez's work, and that the contract
supported the conclusion that Mr. Gutierrez was an independent contractor with
respect to FedEx. After determining that Mr. Huggins had not offered admissible
evidence to the contrary, the court granted summary judgment to FedEx because



                                          -7-
Mr Huggins failed to adduce evidence sufficient to support a finding that
Mr. Gutierrez was a FedEx employee.

       In reaching its conclusion, the court relied heavily on specific provisions in the
agreement stating that the parties "intend" that ANI "will provide [its] services strictly
as an independent contractor, and not as an employee of [FedEx] for any purpose" and
will "direct the operation of the Equipment and ... determine the methods, manner and
means of performing the obligations specified in the Agreement." Although the
district court acknowledged that the contract "defined certain requirements regarding
standards of service/performance; operator appearance; customer service;
safety/conduct," it concluded that ANI had discretion as to how to "carry out" these
"objectives." The court relied on provisions giving ANI "sole discretion in
determining the means and methods [by] which to carry out the foregoing objectives."
The Restatement notes the "important distinction" that exists "between service in
which the actor's physical activities and his time are surrendered to the control of the
master, and service under an agreement to ... use care and skill in accomplishing
results." Restatement (Second) of Agency § 220, comment (e); see also Skidmore v.
Haggard, 

, 845, 

, 730 (Mo. 1937). In the former case,
the actor is an employee or servant, in the latter an independent contractor.

       Of course, general contract provisions that confer on a party the discretion to
determine the "means and methods" for carrying out "objectives" (language often used
to describe the role of an independent contractor) will not trump provisions that
actually reserve the right to control the details of that party's performance. Having
carefully reviewed the agreement in this case, we conclude that it did not simply
require ANI and its drivers to use skill and care in their work; under the agreement,
FedEx retained the right to control at least some of the "means and methods" used by
ANI and its drivers to achieve the contract's stated objectives.



                                           -8-
       We observe initially that the agreement makes plain that the ANI drivers
performed work that was "part of the regular business" of FedEx, a fact that the
Restatement lists as supporting the existence of a master/servant relationship.
Restatement (Second) of Agency § 220(2)(h). For instance, the contract begins by
stating that FedEx "is a duly licensed motor carrier engaged in providing ...
transportation and delivery service" and that FedEx "wants to provide for package
pick-up and delivery services through a network of nationwide terminals served by"
what it terms "independent contractors." Unlike truck drivers engaged by other types
of businesses, however, ANI and Mr. Gutierrez performed work that was the essence
of FedEx's business, namely, "transportation and delivery service." Cf. Brister v.
Ikenberry, No. ED 92993, 

, at *4 (Mo. Ct. App. Dec. 22, 2009).

       We note, moreover, that the agreement required ANI and its drivers to look and
act like FedEx employees while they performed FedEx services, and we believe that
these provisions show the extent of FedEx's control over some details of
Mr. Gutierrez's work, see Restatement (Second) of Agency,§ 220(2)(a). The
agreement states that ANI will conduct its "business so that it can be identified as
being part of the [FedEx] system" and that its operators will "[f]oster" FedEx's
"professional image and good reputation." More specifically, "each person having
contact with the public ... will wear a [FedEx]-approved uniform, maintained in good
condition, and ... will otherwise keep his/her personal appearance consistent with
reasonable standards of good order as maintained by competitors and promulgated
from time to time" by FedEx. The agreement also required ANI's trucks to have
FedEx insignia or "identify the Equipment as part of the [FedEx] system" and to be
maintained "in a clean and presentable fashion free of body damage and extraneous
markings."

     In addition, in a section addressing customer service, the agreement states that
FedEx will "familiarize" ANI "with various quality service and safety procedures


                                         -9-
developed by [FedEx]," supporting an inference that ANI and its drivers were required
to follow FedEx's procedures. FedEx also reserved the right to monitor ANI safety
practices; FedEx terminal personnel, "at their option," were permitted to "take a ...
safety ride with contractor [or presumably the contractor's driver] to verify"
compliance with standards in the agreement. Furthermore, drivers had to submit daily
fuel receipts and daily shipping documents to FedEx. They also organized and
returned undeliverable packages to FedEx, and ANI agreed to provide FedEx with
"advance notice of routes to be taken for each linehaul movement" and "a state by
state mileage report" for interstate package and delivery movement.

        The agreement also lists certain bases for "driver disqualification." The "acts
and omissions" for which a driver will be disqualified include failure to pass or submit
to a drug or alcohol test that FedEx may administer "at such time and place and in
such manner as determined by [FedEx] or its designees," as well as failing to obtain
a federally-required physical certification issued by a FedEx-approved medical
examiner. If an alleged act or omission would constitute a criminal offense, FedEx,
"in its sole discretion," "may make a preliminary determination of the probability that
[ANI or a driver] is guilty of [an] offense whether charged or not."

       Relying on workers' compensation cases, see, e.g., Nunn v. C.C. Midwest,

, 402 (Mo. Ct. App. 2004), Mr. Huggins contends that the labels used
by the parties in an agreement such as "independent contractor," as opposed to
"servant" or some similar appellation, are not dispositive on the question of the parties'
actual relationship to each other. Although workers' compensation cases are not
directly relevant because they are governed by statutes not applicable here and by
presumptions that favor finding an employment relationship, see 

we agree
that the parties' characterization of the relationship is not controlling. See Brister,

, at *4. The applicable considerations set out in §220(2) of the
Restatement (Second) of Agency are far broader in scope, and list as only one factor


                                          -10-
out of many, "whether or not the parties believe they are creating the relationship of
master and servant." Restatement (Second) of Agency § 220(2)(i).

       The Restatement also lists as a relevant question "whether the employer or the
workman supplies the instrumentalities, tools, and the place of work for the person
doing the work." Restatement (Second) of Agency § 220(2)(e). Here ANI provided
the tractor, but the contract provided that "any trailers and dollies used in connection
with the [e]quipment will be provided by [FedEx] and at [FedEx's] expense." In
addition, Mr. Huggins relies on his own sworn declaration for the statement in his
brief that "FedEx provided the terminal and package processing facilities from which
Gutierrez was required to obtain his itineraries, depart and return from trips, and to
drop and hook the FedEx owned trailers." Although Mr. Huggins's declaration
primarily addresses his own relationship with FedEx, he traveled with Mr. Gutierrez
on the day of the accident and FedEx admits that the two were a driving "team." We
do not think that the court should have disregarded Mr. Huggins's statement that he
"saw Gutierrez obtain his itineraries from the FedEx ground dispatch office," cf.
Brannon v. Luco Mop Co., 

, 848 (8th Cir. 2008), cert. denied, 

(2008), and we believe that it provides some evidence that the "place of work"
included FedEx's offices and that FedEx exercised some control over Mr. Gutierrez's
driving, though Mr. Huggins failed to establish the exact contents of the itineraries.
As we have said, moreover, the agreement expressed FedEx's intention to have ANI
and other contractors provide pick-up and delivery services through a network of
nationwide terminals, which may be some evidence that Mr. Gutierrez traveled from
one FedEx terminal to another, so that the terminals were essentially part of his "place
of employment."

      We note too that the Restatement directs courts to consider the "length of time
for which the person is employed" in determining whether a person is an independent
contractor. Restatement (Second) of Agency § 220(2)(f). " '[I]f the time of


                                         -11-
employment is short, the worker is less apt to subject himself to control as to details
and the job is more likely to be considered his job than the job of the one employing
him.' Likewise, a longer term of employment denotes an employer-employee
relationship as being more likely." Jones v. Brashears, 

, 446 (Mo. Ct.
App. 2003) (quoting Restatement (Second) of Agency, § 220, comment j).
Mr. Huggins relies on a "Separation Form" that indicates that Mr. Gutierrez was
employed from April, 2001, and voluntarily resigned in May, 2004, but the form does
not list an employer. It lists his "Supervisor" as "Alysha Singleton," who was never
associated with FedEx in the record and may well have been an ANI employee. But
FedEx admits that Mr. Gutierrez was employed by Mr. Ireland during this time, and
the evidence may support an inference that Mr. Gutierrez drove FedEx trucks for three
years.

       We observe, finally, that in addition to the documents that we have already
discussed, Mr. Huggins attached several other items to his response to the summary
judgment motion that provide some support for a finding that FedEx employed
Mr. Gutierrez. For instance, Mr. Huggins filed a document with the "FedEx Ground"
logo at the top that reflects a "Record of Strength Test" for Mr. Gutierrez. The form
is dated shortly before he was hired. Mr. Huggins also proffered an undated "Fair
Credit Reporting Act Disclosure Statement," which authorizes credit agencies and
others to release information about Mr. Gutierrez to "FedEx Ground" and their agents
and appears to be signed by Mr. Gutierrez. Mr. Huggins submitted a drug testing
form, moreover, that listed FedEx as his employer. We believe that these forms
support an inference that FedEx participated in deciding whether Mr. Gutierrez would
be hired to drive a truck to pull its trailers and provide some support for a finding that
he was a FedEx employee.

       As we have said, the court may decide the question of whether a master-servant
relationship exists as a matter of law only if "no material fact[] giving rise to the


                                          -12-
determination is genuinely in dispute and when only one conclusion is reasonable."

. There is certainly record evidence tending to show that
Mr. Gutierrez was an independent contractor. For instance, as the district court
pointed out, the contract between FedEx and ANI provided that ANI would
compensate the drivers, pay their taxes, and provide workers' compensation for them.
But we believe that the evidence – including the terms of the written agreement,
Mr. Huggins's declaration, and the documents showing that FedEx tested
Mr. Gutierrez and checked into his background before he was hired – would support
a reasonable inference and thus a jury finding that FedEx had a right to control his
performance and was his employer for respondeat superior purposes. See Shell Oil

. We therefore conclude that the district court erred in holding
that Mr. Huggins could not make out a claim against FedEx based on respondeat
superior.

                                           B.
       We reject what Mr. Huggins calls his alternative argument, namely, that FedEx
is vicariously liable for Mr. Gutierrez's negligence under the Federal Motor Carrier
Safety Regulations (FMCSR), see 49 C.F.R. § 376.12(c)(1). Mr. Huggins cites the
FMCSR and related case law in support of his contention that FedEx is liable as a
matter of law for Mr. Gutierrez's negligent operation of the leased vehicle. In
response, FedEx states that Mr. Huggins failed to include this claim in his complaint.
FedEx also argues that Mr. Huggins could not prevail in any event, because he is a
co-driver, not a member of the public, and thus is not an intended beneficiary of the
FMCSR and its enabling statute, 49 U.S.C. § 14102, and because the governing
agency (now the Department of Transportation) has clarified by regulation and
commentary that prior cases holding carriers liable under the FMCSR were wrongly
decided. Because we conclude that Mr. Huggins did not plead a claim under the
FMCSR, we do not reach FedEx's other arguments.



                                        -13-
       A complaint must include "a short and plain statement of the claim showing that
the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Although we must liberally
construe a complaint in favor of the plaintiff, a complaint must "give the defendant
fair notice of what the plaintiff's claim is and the grounds upon which it rests."
Tellabs, Inc. v. Makor Issues & Rights, Ltd., 

, 319 (2007) (internal
quotation marks and citation omitted).

       To assess whether Mr. Huggins made out a claim under the FMCSR, we must
therefore determine the "grounds upon which" his claim rests. Section 376.12(c)(1)
requires a lease between a federally authorized carrier and an owner-operator to state
that the carrier has "exclusive possession, control, and use of the [lessor's] equipment"
and "shall assume complete responsibility for the operation of the equipment" during
the term of the lease. 49 C.F.R. § 376.12(c)(1); see also 49 U.S.C. § 14102(a)(4).
Here the FedEx lease includes a provision to that effect. Relying, in part, on the same
regulatory language, courts have held carriers liable for injuries to the public caused
by the negligent operation of leased vehicles; these courts have sometimes imposed
so-called logo liability by holding that a carrier was liable whenever its logo or other
identification appeared on the leased truck at the time of the accident, see, e.g., Mellon
Nat'l Bank & Trust Co. v. Sophie Lines, Inc., 

, 475-78 (3d Cir. 1961).
Though we have not addressed the issue in an accident case, in two cases involving
insurance disputes we cited Mellon and stated that carriers are liable for injuries to the
public resulting from the negligent operation of leased vehicles that identify the
carriers by federal permit number or logo. See Grinnell Mut. Reinsurance Co. v.
Empire Ins. Co., 

, 1404 (8th Cir. 1983), cert. denied, 

(1984); Wellman v. Liberty Mutual Insurance Company, 

, 136 (8th
Cir.1974); see also Acceptance Ins. Co. v. Canter, 

, 1027 (8th Cir.
1991).




                                          -14-
       In his complaint, Mr. Huggins did not mention any federal or state law
governing authorized motor carriers, nor did he even allege that FedEx was a carrier.
Over two years after he filed his complaint, and almost eight months after the deadline
passed for seeking leave to amend pleadings, Mr. Huggins maintained for the first
time in response to FedEx's summary judgment motion that FedEx was liable based
on the FMCSR. Perhaps because this argument had not been previously advanced,
the district court did not address the matter in its order granting summary judgment
to FedEx.

       Mr. Huggins contends on appeal, however, that he was not required to plead the
FMCSR specifically to be entitled to relief under it. He contends that by alleging in
his complaint that FedEx was "vicariously liable" for Mr. Gutierrez's negligence
because Mr. Gutierrez was an "employee/agent/servant" of FedEx and "acting in the
course and scope of his agency/employment" at the time of the accident (allegations
supporting his common-law negligence claim), he sufficiently preserved the argument
that FedEx was "vicariously liable" for Mr. Gutierrez's liability because of the federal
regulations. We reject the contention because unlike Mr. Huggins's claim based on
respondeat superior, liability under § 376.12(c)(1) (the so-called "control regulation")
is not bottomed on any alleged "employee/agent/servant" relationship between a
carrier and the vehicle's driver.

     In 1992, the Interstate Commerce Commission (the predecessor governing
agency) made it plain that § 376.12(c)(1) had no effect on the legal relationship
between a carrier and the driver of its leased vehicle:

             Nothing in the provisions required by paragraph (c)(1) of this
      section is intended to affect whether the lessor or driver provided by the
      lessor is an independent contractor or an employee of the authorized
      carrier lessee. An independent contractor relationship may exist when a



                                         -15-
      carrier lessee complies with 49 U.S.C. § 14102 and attendant
      administrative requirements.

49 C.F.R. § 376.12(c)(4). In related comments, the ICC explained that although "most
courts" had "correctly interpreted the appropriate scope of the control regulation," the
agency had added this subsection "to clear up confusion in some courts and state
agencies." The ICC further noted that the regulations had always been "silent on the
agency status of lessors," and that the agency's decisions were "clear that the [ICC]
has taken no position on the issue of independence of lessors." Thus we conclude that
Mr. Huggins's allegations that FedEx was liable for Mr. Gutierrez's negligence
because Mr. Gutierrez was an employee, servant, or agent of FedEx are precisely what
they appear to be and no more: allegations that support a common-law theory of
respondeat superior. Mr. Huggins himself acknowledged this distinction in a post-
judgment motion by describing his contention that FedEx was liable under the
FMCSR as an "alternative basis of liability" that he had asserted "in addition to his
agency theory."

       We note, moreover, that to state a claim under the FMCSR Mr. Huggins was
required to do more than merely refer in an obscure way to some aspect of it (such as
vicarious liability) in his complaint. Although a party is "not necessarily required to
identify a specific statute in its complaint," we concluded in Eckert v. Titan Tire
Corp., 

, 806-07 (8th Cir. 2008), that a party's reference to ERISA in the
jurisdictional section of her third-party complaint, absent any other indication that she
intended to pursue an ERISA claim, did not give the opposing party fair notice of such
a claim. Here, Mr. Huggins's complaint not only fails to mention the FMCSR or its
enabling statute, it does not even allege that FedEx is a carrier, a vital aspect of the
duty he now seeks to impose on FedEx.




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     We conclude that Mr. Huggins's complaint did not state a claim under the
FMCSR because it did not give FedEx fair notice that he was making such a claim.
We therefore need not address the claim's merits.

                                        III.
       We affirm the judgment entered in favor of Teton, and we reverse the judgment
in favor of FedEx and remand the case for further proceedings not inconsistent with
this opinion.
                       ______________________________




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