Greer v. T. F. Thompson & Sons, Inc., et al
Filing
111
ORDER granting 94 Thompson's Motion in Limine; granting in part and denying in part 95 Thompson's Motion for Summary Judgment. IT IS FURTHER ORDERED GRANTING Thompson's Motion for Summary Judgment on Greer's Claims. DISMISSING Thompson's Counterclaim. DENYING Thompson's Motion for Summary Judgment on Thompson's Counterclaim as moot. Signed by Judge Stephen M McNamee on 11/3/11.(DMT)
1
WO
2
3
4
5
6
7
IN THE UNITED STATES DISTRICT COURT
8
FOR THE DISTRICT OF ARIZONA
9
10
Dudley Greer, dba Greer Farms,
11
Plaintiff,
12
v.
13
T.F. Thompson & Sons, Inc.,
14
Defendant.
15
T.F. Thompson & Sons, Inc.,
16
Counter-Plaintiff.
17
v.
18
Dudley Greer, dba Greer Farms,
Counter-Defendant.
19
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
No. CV-10-0799-PHX-SMM
ORDER
20
Before the Court are Defendant/Counter-Plaintiff T.F. Thompson & Sons, Inc.’s
21
(“Thompson”): (1) Motion in Limine to Exclude the Expert Testimony of Dr. Julian Whaley
22
(Doc. 94) and (2) Motion for Summary Judgment (Doc. 95). Plaintiff/Counter-Defendant
23
Dudley Greer (“Greer”) has responded to both motions (Doc. 104; Doc. 105), Thompson has
24
replied to both (Doc. 108; Doc. 109), and the matters are now fully briefed.1
25
26
27
28
1
Thompson requested oral argument in both its Motion in Limine (Doc. 94) and
Motion for Summary Judgment (Doc. 95). The parties have had the opportunity to submit
briefing. Accordingly, the Court finds the pending motions suitable for decision without oral
argument and Thompson’s request is denied. See L.R. Civ. 7.2(f).
1
BACKGROUND
2
In autumn 2008, Greer, an Arizona farmer who grows red potatoes among other crops,
3
entered into an oral agreement to purchase Red Lasoda seed potatoes from Thompson. (Doc.
4
96 ¶ 1; Doc. 106 ¶ 14.) Thompson participated in the North Dakota State Seed Certification
5
Program, which required inspections of its seed potato fields during cultivation. (Doc. 96,
6
Exs. 2 & 3.) Thompson stored its seed potatoes for about 40 days before its first shipment
7
to Greer on November 14, 2008. (Doc. 96 ¶ 6, Ex. 6.) Before Thompson’s shipment to Greer,
8
North Dakota State Seed Inspectors inspected seed potato samples as they were loaded for
9
delivery. (Doc. 96 ¶ 7; Doc. 106 ¶ 4.) The inspectors certified the Thompson seed potatoes
10
shipped to Greer as “first grade” or “blue-tagged,” meaning that the samples were free from
11
visible defects. (Doc. 96 ¶ 8; Doc. 106 ¶ 5.)
12
Fifteen truckloads of Thompson’s seed potatoes arrived at Greer’s facility between
13
November 2008 and January 2009. (Doc. 96 ¶ 2; Doc. 106 ¶ 15.) Greer’s seed potato
14
receivers inspected the delivery and noted no problems. (Doc. 96 ¶¶ 9-10.) Greer stored,
15
chemically treated, and warmed the seed potatoes for about three to four weeks to prepare
16
them for cutting and planting. (Doc. 96 ¶¶ 11-12; Doc. 106 ¶ 16.) Greer employees
17
responsible for cutting the sprouting seed potatoes noted no problems with the cut seed
18
potatoes. (Doc. 96 ¶¶ 13-15.) After cutting, the seeds were dried, then trucked to Greer’s
19
fields in Waddell, Arizona for planting. (Doc. 96 ¶ 16.) Greer’s planters did not note any
20
problems with the seed potatoes during planting, which occurred from about December 11,
21
2008 to February 3, 2009. (Doc. 96 ¶ 18; Doc. 106 ¶ 17.) Thompson’s seed potatoes were
22
planted alongside seed potatoes from at least three other growers. (Doc. 96 ¶ 19.) Greer paid
23
Thompson $69,414.80 for the first twelve loads of delivered seed potatoes, but did not pay
24
the $17,370.60 owed on the final three loads delivered in January 2009. (Doc. 96 ¶ 33.)
25
After experiencing problems with crop yield and allegedly noticing decayed and rotted
26
crops in the ground, Greer submitted seed potato samples for laboratory testing. (Doc. 106
27
¶¶ 18-19.) In March 2009, a testing laboratory at Oregon State University isolated
28
-2-
1
Phytophthora Erythroseptica (“P. Erythroseptica”), a soil-borne organism that causes the
2
disease Pink Rot, from decaying potato tubers apparently taken from Greer’s fields. (Doc.
3
96 ¶ 21; Doc. 106 ¶¶ 7, 21, Ex. C.) Greer asserts that Pink Rot is associated with high soil
4
moisture at the time potato tubers reach maturity, and that rainy weather during harvest
5
caused parts of Thompson’s fields to be covered in water. (Doc. 106 ¶¶ 22-28.) In June 2009,
6
Thompson commissioned its own analysis of potato samples in Greer’s fields, and detected
7
the pathogen Sclerotium Rolfsii (“S. Rolfsii”), which causes the disease Southern Blight.
8
(Doc. 96 ¶ 23.) In mid-July 2009, Greer tested for S. Rolfsii, and found it in three of the
9
seven fields that contained Thompson’s seed potatoes, and also in a field where Thompson’s
10
seed potatoes had not been planted. (Doc. 96 ¶ 24; Doc. 106 ¶¶ 29-33.) All of Greer’s fields
11
containing S. Rolfsii were also planted with corn, which according to one study cited by
12
Thompson is susceptible to S. Rolfsii, before or at the same time as the seed potatoes were
13
planted. (Doc. 96 ¶ 25 & Ex. 22.) There is no evidence that either P. Erythroseptica or S.
14
Rolfsii (collectively the “two pathogens”) has been found on Thompson’s land. (Doc. 96 ¶
15
26.) Thompson, relying on the deposition of its expert, Gary Secor, Ph.D., asserts that
16
although S. Rolfsii has never before been found in North Dakota soil or potatoes, it is
17
common in Arizona and other high temperature climates. (Doc. 96 ¶¶ 28-29, Ex. 21 at 86.)
18
Greer disputes this by citing to a publication stating that the fungi is “widely prevalent” in
19
North Dakota but does not rebut the assertion that S. Rolfsii has not been found in potatoes
20
in that state. (Doc. 106 ¶¶ 11, 53, 56.) Thompson further contends that seed potatoes with
21
Pink Rot exhibit a strong smell, rapid decay, and a distinctive color change within 10 to 60
22
days of harvest, while Greer contends that the disease may remain latent in seed potatoes
23
maintained at cold temperatures. (Doc. 96 ¶¶ 31-32; Doc. 106 ¶ 12.)
24
Greer alleges that the two pathogens infected the seed potatoes ordered from
25
Thompson, leading to extensive damage to Greer’s potato crop and business. (Doc. 106 ¶¶
26
34-36.) On April 12, 2010, Greer brought this diversity lawsuit against Thompson and the
27
now-dismissed Clemenson Sales Co. alleging: (1) breach of contract/express warranty; (2)
28
-3-
1
breach of implied warranty of merchantability; (3) breach of implied warranty of fitness for
2
a particular purpose; (4) breach of implied covenant of good faith and fair dealing; (5)
3
negligence; and (6) fraudulent Concealment. (Doc. 1 at 5-8.) Thompson filed a Counterclaim
4
for breach of contract, alleging that Greer has failed to pay $17,370.60 owed Thompson for
5
the final three delivered loads of seed potatoes. (Doc. 15 at 7.)
6
In support of its case, Greer cites to its expert, Dr. Julian W. Whaley, Ph.D.
7
(“Whaley”) (Doc. 106 ¶¶ 37-56.) Whaley opined in his report, based primarily on the alleged
8
pattern of disease evident in Greer’s fields, that the two pathogens first infected Thompson’s
9
seed potatoes while being grown in North Dakota and then spread throughout Greer’s fields
10
soon after the seed potatoes’ planting. (Doc. 94-2 at 2-3, 9.) Whaley further stated that P.
11
Erythroseptica is established in North Dakota and that wet weather conditions while
12
Thompson’s seed potatoes were growing in North Dakota were conducive to Pink Rot. (Doc.
13
94-2 at 6-7, 9.) Whaley opined that because there was apparently no prior or subsequent
14
history of the two pathogens in Greer’s fields, the Thompson seed potatoes were their source.
15
(Doc. 94-2 at 5.) The inspectors in North Dakota did not discover the diseased seed potatoes,
16
Whaley opined, either because the sample size of seed potatoes inspected was too small or
17
because the seed potatoes were inspected during an incubation period when symptoms were
18
not apparent. (Doc. 94-2 at 9.) Another plant pathologist, Paul Santos, M.S., has also stated
19
that the spread of disease in Greer’s fields was likely caused by the large-scale introduction
20
of contaminated seed potatoes. (Doc. 106 ¶¶ 54-55.)
LEGAL STANDARDS
21
22
I.
Motion to Exclude Expert Witness
23
A witness who has been qualified as an expert by knowledge, skill, experience,
24
training, or education may give an opinion on scientific, technical, or otherwise specialized
25
topics “. . . if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the
26
product of reliable principles and methods, and (3) the witness has applied the principles and
27
methods reliably to the facts of the case.” Fed. R. Evid. 702. Trial judges have a
28
-4-
1
responsibility to act as gatekeepers to exclude all types of unreliable expert testimony. Fed.
2
R. Evid. 702 (Advisory Committee’s Notes 2000 Amendments). To exercise this
3
responsibility, “ . . . the trial judge must have considerable leeway in deciding in a particular
4
case how to go about determining whether particular expert testimony is reliable.” Kumho
5
Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999). Daubert v. Merrell Dow Pharmaceuticals
6
sets forth a two-part test for admitting expert testimony that focuses on the reliability and
7
relevancy of the opinion. 509 U.S. 579, 589 (1993). To be sufficiently reliable, the opinion
8
must be based on “scientifically valid principles.” Id. at 595. To be relevant, the testimony
9
must “assist the trier of fact to . . . determine a fact in issue.” Id. at 592 (quoting Fed. R. Evid.
10
702). The burden is on “. . . the party proffering the evidence [to] explain the expert’s
11
methodology and demonstrate in some objectively verifiable way that the expert has both
12
chosen a reliable scientific method and followed it faithfully.” Daubert v. Merrell Dow
13
Pharm., 43 F.3d 1311, 1319 (9th Cir. 1995). Factors that courts have used to evaluate the
14
reliability of an expert’s methods include:
15
1.
Whether the expert’s method is falsifiable or merely conclusory;
16
2.
Whether the technique has been subject to peer review and publication;
17
3.
The known or potential error rate of the technique;
18
4.
The existence and maintenance of standards and controls;
19
5.
Whether the technique has general acceptance in the relevant expert community;
20
6.
Whether the substance of the testimony was prepared specifically for the instant
litigation;
21
22
7.
Whether the expert’s extrapolation from an accepted premise to his conclusion was
justifiable;
23
24
8.
Whether the expert has adequately accounted for obvious alternative explanations;
25
9.
Whether the expert “is being as careful as he would be in his professional work
26
outside his paid litigation consulting”;
27
28
-5-
1
10.
Whether the field of expertise claimed by the expert is known to reach reliable results
for the type of opinion the expert would give.
2
3
See Daubert, 509 U.S. at 593-595; Daubert, 43 F.3d at 1317; see Claar v. Burlington N.R.R.,
4
29 F.3d 499 (9th Cir. 1994); see Kumho, 526 U.S. at 149-151; Fed. R. Evid. 702 (Advisory
5
Committee’s Notes 2000 Amendments). These factors are neither required nor exhaustive.
6
See Fed. R. Evid. 702 (Advisory Committee’s Notes 2000 Amendments). Additionally, no
7
single factor is necessarily dispositive of the reliability of an expert’s testimony. Id. The
8
objective “is to make certain that an expert, whether basing testimony upon professional
9
studies or personal experience, employs in the courtroom the same level of intellectual rigor
10
that characterizes the practice of an expert in the relevant field.” Kumho, 526 U.S. at 152.
11
II.
Motion for Summary Judgment
12
A court must grant summary judgment if the pleadings and supporting documents,
13
viewed in the light most favorable to the nonmoving party, “show[] that there is no genuine
14
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
15
Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Jesinger v.
16
Nev. Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir. 1994). Substantive law determines
17
which facts are material. See Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986); see also
18
Jesinger, 24 F.3d at 1130. “Only disputes over facts that might affect the outcome of the suit
19
under the governing law will properly preclude the entry of summary judgment.” Anderson,
20
477 U.S. at 248. The dispute must also be genuine, that is, the evidence must be “such that
21
a reasonable jury could return a verdict for the nonmoving party.” Id.; see Jesinger, 24 F.3d
22
at 1130.
23
A principal purpose of summary judgment is “to isolate and dispose of factually
24
unsupported claims.” Celotex, 477 U.S. at 323-24. Summary judgment is appropriate against
25
a party who “fails to make a showing sufficient to establish the existence of an element
26
essential to that party’s case, and on which that party will bear the burden of proof at trial.”
27
Id. at 322; see also Citadel Holding Corp. v. Roven, 26 F.3d 960, 964 (9th Cir. 1994). The
28
-6-
1
moving party need not disprove matters on which the opponent has the burden of proof at
2
trial. See Celotex, 477 U.S. at 323-24. The party opposing summary judgment need not
3
produce evidence “in a form that would be admissible at trial in order to avoid summary
4
judgment.” Id. at 324. However, the nonmovant must set out specific facts showing a genuine
5
dispute for trial. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
6
585-88 (1986); Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995).
7
DISCUSSION
8
I.
Thompson’s Motion in Limine
9
Thompson requests that the Court exclude Whaley’s testimony under Federal Rule
10
of Evidence 702. (Doc. 94.) It is undisputed that Whaley is qualified as an expert by
11
“knowledge, skill, experience, training, or education.” (Doc. 94 at (quoting Fed. R. Evid.
12
702). As mentioned above, Daubert requires that expert testimony be relevant to the facts of
13
the case and sufficiently reliable. 509 U.S. at 589. The Court finds that Whaley’s conclusions
14
and the method used to reach these conclusions would be relevant to the trier of fact “to
15
determine a fact in issue,” namely the origination and spread of the two alleged pathogens.
16
Fed. R. Evid. 702.
17
Thus, the only question is whether Whaley’s testimony is sufficiently reliable.
18
Thompson asserts that Whaley’s methods fell short of satisfying Federal Rule of Evidence
19
702 because they were conclusory, lacked any standards or controls, were not accepted in the
20
relevant expert community, were prepared for the instant litigation, were not scientifically
21
reasonable, and failed to account for alternative explanations. (Doc. 94; Doc. 108 at 10-11.)
22
Whaley’s expert report and his affidavit attached to Greer’s response both attempted to
23
address these issues. (Doc. 94-2, Doc. 104-1.)
24
In exercising its gatekeeping responsibility, the Court finds that Whaley’s testimony
25
does not meet the Daubert reliability standard. First, Whaley’s conclusions fails to employ
26
appropriate principles and methods to account for how Thompson’s allegedly diseased seed
27
potatoes passed undetected by inspectors that were part of the North Dakota State Seed
28
-7-
1
Certification Program and by Greer’s own seed potato receivers and cutters. (Doc. 96 ¶¶ 8-
2
10, 13-15; Doc. 106 ¶ 5.) Whaley’s expert report merely surmises that “I think the relatively
3
small samples are not enough sometimes and perhaps they were examined during the
4
incubation period when symptoms are not obvious.” (Doc. 94-2 at 9.) Whaley makes this
5
assumption without any evidence that a pathogen, even if it survived in a dormant or latent
6
state, could cause disease in North Dakota seed potatoes in the manner alleged. Such
7
speculation is not based on scientifically valid principles and it is not objectively verifiable
8
that Whaley chose “a reliable scientific method and followed it faithfully.” Daubert, 43 F.3d
9
at 1319.
10
Second, Whaley’s conclusion “that the pattern of disease development in the Greer
11
Farms field is definitely one caused by planting diseased seed pieces” is not supported by
12
appropriate scientific principles and methods. (Doc. 94-2 at 9.) Whaley based his opinion on
13
purported “planter patterns” in Greer’s fields that he opined demonstrated that diseased seed
14
potatoes damaged the fields. (Doc. 94-2 at 4.) However, Whaley’s conclusions that the
15
planter patterns existed in Greer’s fields are based upon observations by Greer
16
representatives and often poor-quality photographic documentation of the fields. (Doc. 94-2
17
at 4-5.) Thus, the basis for Whaley’s planter pattern theory is not grounded in scientific
18
methods or principles, and the planter pattern theory itself is insufficiently supported. (Doc.
19
94-2 at 4-5.)
20
Third, Whaley’s opinion on the origins of the two pathogens that allegedly damaged
21
Greer’s fields is not based in scientific methods or principles. Whaley states in his report that
22
S. Rolfsii has never been reported in North Dakota (although he “would expect it [to be
23
reported] in the future].” (Doc. 94-2 at 6.) A study that Whaley refers to in a subsequent
24
declaration lists S. Rolfsii as a widely prevalent pathogen in North Dakota; however the
25
appropriateness of including S. Rolfsi in that listing has been called into question by the
26
study’s own author. (Doc. 104-1 ¶¶ 22-23; Doc. 109-3 at 2.) As to P. Erythroseptica, Whaley
27
has merely theorized that wet fields might make Thompson’s seed potatoes more susceptible
28
-8-
1
to the pathogen, which provides an insufficient scientific basis to conclude that Thompson’s
2
seed potatoes were infected. Dr. Whaley also cites to reports from Greer’s representatives
3
that these problems had not occurred prior to 2009 and on overall yield data for Greer’s
4
fields. (Doc. 94-2 at 2, 5.) However, such data is not pertinent for the purposes of concluding
5
that the two pathogens derived from Thompson’s seed potatoes.
6
Fourth, Whaley states that “[a]n argument is made that others received potatoes from
7
defendants and had no problem. This is possible because some of the fields or portion of
8
same were disease free.” (Doc. 94-2 at 9.) Again, such speculation is unsupported, and does
9
not meet the standard set forth for reliability.
10
Fifth, Whaley’s method does not meet the reliability standard based on other factors,
11
as Whaley’s method is conclusory, does not demonstrate any standards and controls, was
12
prepared specifically for this litigation, and does not adequately account for alternative
13
explanations regarding the origins of the pathogens and the alleged damage caused. See
14
Daubert, 509 U.S. at 593-595; Daubert, 43 F.3d at 1317; see Kumho, 526 U.S. at 149-151;
15
Fed. R. Evid. 702 (Advisory Committee’s Notes 2000 Amendments). Whaley also fails to
16
demonstrate that the methods employed in this case are generally accepted in the relevant
17
expert community, have been subject to peer review and publication, or are otherwise
18
grounded in scientific support. See id. The Court therefore concludes as a matter of law that
19
Whaley’s methods do not meet the standards set by Daubert. Thus, the Court will grant
20
Thompson’s Motion in Limine.
21
II.
Thompson’s Motion for Summary Judgment
22
A.
Motion for Summary Judgment on Greer’s Claims
23
Thompson seeks summary judgment on all six of Greer’s causes of action on grounds
24
that Greer has provided insufficient evidence that the two pathogens originated with
25
Thompson’s soil or seed potatoes. (Doc. 95 at 11.) Greer states that Whaley’s opinion, along
26
with additional facts in this case, give rise to a material dispute preventing summary
27
28
-9-
1
judgment. (Doc. 104.) The Court will consider the parties’ arguments in light of Greer’s six
2
causes of action.
3
Greer’s first four causes of action are contract-related claims alleging: (1) breach of
4
contract/express warranty; (2) breach of implied warranty of merchantability; (3) breach of
5
implied warranty of fitness for a particular purpose; and (4) breach of implied covenant of
6
good faith and fair dealing. (Doc. 1 at 5-7.) Greer’s Complaint alleges that Thompson has
7
breached all three warranties and the covenant of good faith and fair dealing by agreeing to
8
deliver seed potatoes suitable for producing potatoes for sale, but instead providing infected
9
seed potatoes that could not be successfully cultivated. (Doc. 1 at 5-6.) Thompson contends
10
in its Motion for Summary Judgment that it is not liable to Greer, as there is insufficient
11
evidence that the two pathogens originated from its seed potatoes or that the two pathogens
12
existed in its seed potatoes prior to planting. (Doc. 95 at 11-14.)
13
A seller creates an express warranty by first making an affirmation of fact, promise,
14
or description relating to the goods which becomes the basis for the bargain, and then
15
violating that affirmation, promise, or description. Ariz. Rev. Stat. § 47-2313. A warranty of
16
merchantability “is implied in a contract for [a good’s] sale if the seller is a merchant with
17
respect to goods of that kind.” Ariz. Rev. Stat. § 47-2314(A). The goods must “[p]ass without
18
objection in the trade . . . .” and be “fit for the ordinary purposes for which such goods are
19
used.” Id. § 47-2314(B). An implied warranty of fitness for a particular purpose occurs
20
“[w]here the seller at the time of contracting has reason to know any particular purpose for
21
which the goods are required and that the buyer is relying on the seller’s skill or judgment
22
to select or furnish suitable goods.” Ariz. Rev. Stat. § 47-2315. “Every contract contains
23
implied covenants of good faith and fair dealing.” Johnson Int’l v. City of Phoenix, 967 P.2d
24
607, 614-15 (Ariz. Ct. App. 1998). “The essence of that duty is that neither party will act to
25
impair the right of the other to receive the benefits which flow from their agreement or
26
contractual relationship.” Rawlings v. Apodaca, 726 P.2d 565, 569-70 (Ariz. 1986).
27
28
- 10 -
1
Greer’s fifth cause of action alleges negligence because Thompson “knew or should
2
have known that harvesting seed potatoes under wet conditions presented an unreasonable
3
risk of transmitting pathogens,” requiring it to exercise care in providing seed potatoes to
4
Greer and protecting Greer from foreseeable harm. (Doc. 1 ¶¶ 41-42.) Thompson asserts that
5
there was no negligence absent evidence of the two pathogens’ existence prior to planting
6
of the seed potatoes in Greer’s fields. (Doc. 95 at 14.) “To establish a claim for negligence,
7
a plaintiff must prove four elements: (1) a duty requiring the defendant to conform to a
8
certain standard of care; (2) a breach by the defendant of that standard; (3) a causal
9
connection between the defendant’s conduct and the resulting injury; and (4) actual damages.
10
Gibson v. Kasey, 150 P.3d 228, 230 (Ariz. 2007).
11
Greer’s sixth cause of action alleges fraudulent concealment on grounds that although
12
Thompson had a duty to inform it “of the risk presented by the wet conditions at the time of
13
harvest,” Thompson is liable because it “intentionally withheld this information from Greer
14
in order to complete the sale,” leading to damages. (Doc. 1 ¶¶ 43-46.) Thompson contends
15
that as there was no evidence that the seed potatoes were infected before planting in Greer’s
16
fields, fraudulent concealment could not have occurred. (Doc. 95 at 14.) Fraudulent
17
concealment requires “(1) the concealment of a material existing fact that in equity and good
18
conscience should be disclosed; (2) knowledge on the part of the party against whom the
19
claim is asserted that such a fact is being concealed; (3) ignorance of that fact on the part of
20
the one from whom the fact is concealed; (4) the intention that the concealment be acted
21
upon; and (5) action on the concealment resulting in damages.” Coleman v. Watts, 87
22
F.Supp.2d 944, 951-52 (D. Ariz. 1998).
23
The Court will grant Thompson’s request for summary judgment on all of Greer’s
24
claims. See Fed. R. Civ. P. 56(a); see Anderson, 477 U.S. at 248. Although Thompson was
25
to provide Greer with seed potatoes free of significant defects that would become healthy,
26
marketable potatoes, Greer has not met its burden in demonstrating that the two pathogens
27
28
- 11 -
1
originated with Thompson’s seed potatoes or accompanying soil or that the two pathogens
2
caused the alleged damage to Greer’s fields.
3
First, neither North Dakota state seed inspectors nor Greer’s trained receivers and
4
cutters noticed any problems with Thompson’s seed potatoes when they were inspected prior
5
to planting. (Doc. 96, Exs. 2 & 3; Doc. 96 ¶¶ 7, 9-10, 13-15; Doc. 106 ¶ 4.) Other than the
6
unreliable opinion of Greer’s expert Whaley, Greer provides no support for its contention
7
that the inspectors in North Dakota did not discover the diseased seed potatoes either because
8
the sample size of seed potatoes inspected was too small or because the seed potatoes were
9
inspected during an incubation period when symptoms were not apparent. (Doc. 94-2 at 9.)
10
Further, Greer has not presented a reasonable account of why Greer’s own receivers and
11
cutters failed to notice the disease, absent Whaley’s speculative latency theory. (Doc. 96 ¶¶
12
13-15, 18; Doc. 106 ¶ 17.) Second, the mere fact that there is some evidence that the outbreak
13
of the two pathogens in Greer’s fields coincided with the delivery of Thompson’s seed
14
potatoes and occurred in many of the same places where Thompson’s seed potatoes were
15
planted is insufficient absent any tangible evidence of causation. (Doc. 106 ¶¶ 17-19.) The
16
mere possibility that the two pathogens originated with Thompson’s seed potatoes pales in
17
comparison to the likelihood that they derived from Greer’s soil or the numerous other
18
sources of crops planted in Greer’s fields. (Doc. 96 ¶ 19.) Third, the presentation of some
19
evidence that the wet conditions present on Thompson’s land during harvest may contribute
20
to the transmission of Pink Rot does not counterbalance the strong evidence that neither of
21
the two pathogens has been found on Thompson’s land. (Doc. 96 ¶ 26; Doc. 106 ¶¶ 22-28.)
22
As an additional and separate basis for granting Summary Judgment on Greer’s
23
fraudulent concealment and negligence claim, the Court finds that Thompson could not have
24
fraudulently concealed and did not have a duty to protect Greer from two pathogens that it
25
had little reason to know existed and had even less reason to believe would pose a problem
26
for Greer, even if the seed potatoes were harvested in wet conditions. See Anderson, 477
27
U.S. at 248. Accordingly, the Court will grant summary judgment on Greer’s claims for
28
- 12 -
1
breach of contract/express warranty, breach of implied warranty of merchantability, breach
2
of implied warranty of fitness for a particular purpose, breach of implied covenant of good
3
faith and fair dealing, negligence, and fraudulent concealment.
4
B.
Motion for Summary Judgment on Thompson’s Counterclaim
5
Thompson also seeks summary judgment on its breach of contract counterclaim and
6
asserts that it is undisputed that Greer has failed to pay Thompson $17,370.60 for three loads
7
of seed potatoes delivered in January 2009. (Doc. 95 at 15.) The Court has already granted
8
summary judgment on all of Greer’s claims, which leaves only Thompson’s counterclaim.
9
The amount in controversy in Thompson’s counterclaim is $17,370.60, far less than the
10
jurisdictional requirement of $75,000. “The district courts may decline to exercise
11
supplemental jurisdiction over a claim under subsection (a) if . . . (3) the district court has
12
dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). As the
13
Court has dismissed all of Greer’s claims from which it had original jurisdiction, it will not
14
exercise supplemental jurisdiction over Thompson’s counterclaim. 28 U.S.C. § 1367(c)(3);
15
see also St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938) (To justify
16
dismissal, “[i]t must appear to a legal certainty that the claim is really for less than the
17
jurisdictional amount.”). Accordingly, Thompson’s counterclaim is dismissed.
CONCLUSION
18
19
IT IS HEREBY ORDERED GRANTING Thompson’s Motion in Limine (Doc. 94).
20
IT IF FURTHER ORDERED GRANTING IN PART AND DENYING IN PART
21
Thompson’s Motion for Summary Judgment (Doc. 95).
IT IS FURTHER ORDERED GRANTING Thompson’s Motion for Summary
22
23
Judgment on Greer’s Claims.
IT IS FURTHER ORDERED DISMISSING Thompson’s Counterclaim.
24
25
///
26
///
27
///
28
- 13 -
1
2
3
IT IS FURTHER ORDERED DENYING Thompson’s Motion for Summary
Judgment on Thompson’s Counterclaim as moot.
DATED this 3rd day of November, 2011.
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 14 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?