Opinion
Civil No. 02-5-B-S
June 12, 2003
RECOMMENDED DECISION
On April 28, 2003, United States District Court Judge Gene Carter gave third-party defendant Black Decker leave to file a motion for summary judgment after the dispositive motion deadline. It did so on May 8, 2003. (Docket No. 109). Third-party plaintiff Reginald Thompson was given until May 28, 2003 to have new counsel enter an appearance on his behalf because he indicated to Judge Carter that he intended to retain a new attorney after dismissing his prior counsel. As of today's date Thompson has failed to respond pro se to the pending motion for summary judgment and has failed to cause new counsel to appear on his behalf. I now recommend that the court GRANT Black Decker's motion and enter judgment for Black Decker on Thompson's third-party complaint.
Procedural Background
The procedural background of these four cases involving two separate fires at the Jericho Bay Boatyard in Deer Isle, Maine, would make interesting fodder for a law school civil procedure final examination. Fortunately, it is unnecessary to attempt to reconstruct the entire procedural history for purposes of dealing with the pending motion.
The present case, CV-02-5, pertains to a fire that occurred at the boatyard on April 28, 2001. This case is an insurance subrogation case brought by three insurance companies who insured the owners of boats stored at the boatyard. Originally the insurance companies sued Reginald Thompson and the co-owners of the boatyard, alleging that they had negligently caused the fire and were responsible for the damage to the boats.
The same insurance companies also brought a second complaint relating to a December, 2001, fire at the boatyard. That action ultimately involved other boat owners insured by other companies and an entirely different third-party defendant. That case was tried to a jury and a verdict was entered against Thompson. The outcome of that case has nothing to do with the pending motion.
The boatyard owners responded by bringing a third-party complaint against Black Decker alleging that a defective battery charger manufactured by Black Decker had caused the fire. The insurance companies then were given leave to file an amended complaint naming Black Decker as a defendant.
As the litigation progressed other plaintiffs, insured by additional insurance companies and represented by other counsel, were added to claims in connection with the April fire, but the central allegations remained the same. Because of the present settlement posture of the case Black Decker has narrowly targeted its motion for summary judgment, asking only that this court enter judgment against Thompson in his capacity as the third-party plaintiff. Therefore this recommended decision does not address the merits of the plaintiffs' complaint against either the boatyard owners or Black Decker. Black Decker only seeks judgment on Thompson's third-party complaint against it.
Summary Judgment Standard
Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "A material fact is one which has the `potential to affect the outcome of the suit under applicable law.'" FDIC v. Anchor Properties, 13 F.3d 27, 30 (1st Cir. 1994) (quoting Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 703 (1st Cir. 1993)). The Court views the record on summary judgment in the light most favorable to the nonmovant. Levy v. FDIC, 7 F.3d 1054, 1056 (1st Cir. 1993). Here, however, Third-party Plaintiff did not file an opposing statement of material facts as required by the local rule. See D. Me. Loc.R. 56(c) ("A party opposing a motion for summary judgment shall submit with its opposition a separate, short, and concise statement of material facts."). As required by the local rule, I will therefore accept third-party defendant's statement of material facts as true. See D. Me. Loc.R. 56(e) ("Facts contained in a supporting or opposing statement of material facts, if supported by record citations as required by this rule, shall be deemed admitted unless properly controverted.").
Pursuant to the Supreme Court's holding in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), a plaintiff who ultimately will have the burden of proof at trial, often must produce the evidence supporting a claim despite the defendant's failure to introduce evidence negating the claim. Id. at 323-24. Indeed, the Supreme Court has indicated that defendants, in order to have a motion for summary judgment considered, need not introduce claim-negating evidence at all, so long as they "point out . . . that there is an absence of evidence to support the nonmoving party's case." Id. at 325; see also id. at 326 ("[D]istrict courts are widely acknowledged to possess the power to enter summary judgments sua sponte, so long as the losing party was on notice that she had to come forward with all of her evidence."). Third-party defendant Black Decker's motion proceeds under the Celotex framework.
Undisputed Material Facts
Black Decker is a corporation which designs, manufacturers, and sells a variety of tools including the Dewalt DW9107 battery charger. Reginald Thompson alleges that due to a design defect in the Dewalt DW9107 battery charger, he suffered property damage. The third-party complaint contains counts including strict liability, failure to warn, negligence, and breach of express and implied warranties.
Black Decker's record citations for these points simply come from the third-party complaint.
Reginald Thompson, the third-party plaintiff in the above referenced action, did not independently retain any cause and origin or product design experts outside of those designated by the plaintiffs nor did Thompson contribute to the retention of the plaintiffs' various experts. Plaintiffs have now reached a settlement agreement with Black Decker, contingent upon the resolution of Thompson's claims against Black Decker, and as a result of that settlement agreement intend to discharge the experts they have previously retained. Since Thompson did not contribute to the retention of the cause and origin experts and the product design experts retained by the insurance companies, those experts will not be available to testify on Thompson's behalf at trial. (Affidavits of Leonard Langer and Timothy Daly, ¶¶ 4, 5, 7). Thus Black Decker contends that Thompson has no evidence in support of his claims and his third-party complaint should be dismissed.
Discussion
Pursuant to Maine law "it is essential that the plaintiff prove that a product's defective design or the defendant's negligent conduct proximately caused the plaintiff's injuries." Ames v. Dipietro-Kay Corp., 617 A.2d 559, 561 (Me. 1992). Likewise, under either a breach of express or implied warranty claim a plaintiff must prove that the breach proximately caused his injury. Porter v. Pfizer Hosp. Products Group, Inc., 783 F. Supp. 1466, 1473 (D.Me. 1992) (ruling against breach of warranty claim on basis of finding that "[p]laintiff failed to prove by a preponderance of the evidence that his injuries were caused by the Defendant's product"). There is simply no evidence in this summary judgment record that the boatyard fire on April 28, 2001 was caused by the battery charger.
If plaintiff has no admissible evidence, expert or otherwise, tending to prove that the fire originated because of a defect in the battery charger, then plaintiff has no case to present at trial. As Black Decker points out in its memorandum, summary judgment "allows courts and litigants to avoid full blown trials in unwinnable cases, thus conserving the parties' time and money and permitting courts to husband scarce judicial resources." Irivar v. Corporacion In Sular de Seguros, 928 F. Supp. 141, 143 (D.P.R. 1996). While Black Decker's summary judgment record does not present any evidence negating Thompson's allegation that the battery charger caused the fire, the important consideration here is that Thompson has not presented any evidence in support of his claim that the battery charger caused the fire. On this record the motion should be granted.
Conclusion
Based upon the foregoing I recommend that the court GRANT third-party defendant's motion and enter judgment against third-party plaintiff Reginald Thompson on his third-party complaint.
NOTICE
A party may file objections to those specified portions of a magistrate judge's report or proposed findings or recommended decisions entered pursuant to 28 U.S.C. § 636(b)(1)(B) for which de novo review by the district court is sought, together with a supporting memorandum, within ten (10) days of being served with a copy thereof. A responsive memorandum shall be filed within ten (10) days after the filing of the objection.
Failure to file a timely objection shall constitute a waiver of the right to de novo review by the district court and to appeal the district court's order.