Harris v. Jiangsu ASG Earth Environmental Protection Science and Technology Co., Ltd. et al
Filing
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MEMORANDUM OPINION & ORDER: 1. China Container's Motion for Summary Judgment [R. 14] is DENIED without PREJUDICE with leave to refile; 2. China Containers' Motion to Strike Docket Entry 21 [R. 22] is GRANTED; and, 3. The Plaintiff SHALL, within seven (7) days of the filing of this Order, provide the Court with an updated status report as to the service of Jiangsu. Signed by Judge Gregory F. VanTatenhove on 9/18/2014.(AKR)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
FRANKFORT
KENNETH MATTHEW HARRIS,
Plaintiff,
v.
JIANGSU ASG EARTH
ENVIRONMENTAL PROTECTION
SCIENCE AND TECHNOLOGY CO.,
LTD.; JAS FORWARDING (USA),
INC.; and CHINA CONTAINER LINE
LTD.
Defendants.
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Civil No. 13-44-GFVT
MEMORANDUM OPINION
&
ORDER
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Kenneth Harris sustained injuries to his right hand while operating a recycling
system at Nextlife Recycling, LLC in Frankfort, Kentucky. As a result of the injury,
Harris ultimately had his hand amputated. Harris now sues, alleging the defendants are
responsible for manufacturing and placing into commerce a component of that system, a
centrifuge, that caused his injury. China Container now moves the Court for an entry of
summary judgment but the motion will be denied without prejudice as it is premature.1
I
Three defendants are parties to this product liability litigation: Jiangsu ASG Earth
Environmental Protection Science and Technology Company (“Jiangsu”); China
1
China Container asserts that its Memorandum supports its “Motion to Dismiss and/or Motion for
Summary Judgment.” [R. 14 at 1.] Because China Container’s motion depends on the affidavit of
Stephanie Fang [R. 14-1] it will properly be construed as a Rule 56 Motion for Summary Judgment. See
Fed.R.Civ.P. 12(d) (“If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are
presented to…the court, the motion must be treated as one for summary judgment under Rule 56.”)
Container Line (“China Container”); and, JAS Forwarding (“JAS”). [R. 1-3.] Harris
contends that Jiangsu, a Chinese corporation, manufactured the centrifuge and that JAS
and China Container imported and transported the centrifuge. [Id. at 3.] China
Container, who refers to itself as a non-vessel operating common carrier (“NVOCC”),
disagrees with this assessment and claims that its only role was in arranging
transportation of the centrifuge from China to Memphis, Tennessee. They contend that
the Mediterranean Shipping Company (“MSC”) actually shipped the product from China
to Long Beach, California and then on to Memphis, Tennessee. [R. 14-1 at 2-3.] After
the centrifuge arrived in Memphis, it was then transported to its final destination at the
Nextlife Recycling plant in Frankfort, Kentucky.
On July 2, 2012, Harris was injured while operating the Nextlife recycling system
that contained the allegedly faulty centrifuge. [R. 1-3 at 3.] Because of this injury, his
right hand had to be amputated. [Id.] In April 2013, Harris filed suit against “Unknown
Defendants” in Franklin Circuit Court. Over the course of the next three months, Harris
amended his Complaint two different times to ultimately name Jiangsu, JAS and China
Container as defendants. [R. 1-2; R. 1-3.] JAS removed the case to this Court on July
23. [R. 1.] China Container has now filed the motion for summary judgment that is fully
briefed and currently pending before the Court. [R. 14.]
Meanwhile, Harris has been unable to effectuate service as to Jiangsu. [R. 19 at
3.] The Court need not detail his efforts to perfect service here. Suffice it to say that, as
a result of the delay in serving Jiangsu, the case is in an awkward procedural posture.
Despite the fact that the case has been on this Court’s docket for over a year, the parties
have not yet conducted their Rule 26(f) planning meeting, no scheduling order has been
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issued and no party has filed initial disclosures nor begun discovery.
II.
The first question before the Court is not, as in most summary judgment opinions,
whether there is a genuine issue of material fact but whether it is too early for the Court
to consider that question. Federal Rule of Civil Procedure 56 provides that “[t]he court
shall grant summary judgment if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). Normally, “a party may file a motion for summary judgment at any
time until 30 days after the close of all discovery.” Fed.R.Civ.P. 56(b). If, however, “a
nonmovant shows by affidavit…for specific reasons, it cannot present facts essential to
justify its opposition, the court may: (1) defer considering the motion or deny it…”
Fed.R.Civ.P. 56(d).
In China Container’s motion for summary judgment, it argues that (1) the Court
does not have personal jurisdiction over it, (2) the Kentucky product liability act does not
apply and (3) that it did not make implied warranties. [R. 14.] The motion is supported
by the affidavit of Stephanie Fang, the Chief Financial Officer and General Manager of
China Container. [R. 14-1.] That affidavit, amongst other things, denies that China
Container conducts any business in Kentucky, defines China Container’s role as that of a
NVOCC, and explicitly denies that China Container is a “wholesaler, distributor, retailer,
or seller in any manner of any product.” [Id.] The central theme in China Containers’
motion is that they do not operate in Kentucky and that, as a NVOCC, they cannot be
liable.
In his response, Harris argues that because no party has filed initial disclosures
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nor exchanged any written discovery, the motion is premature. [R. 19.] He asks for
additional time so that Jiangsu may be served and file an answer and so that he may
conduct discovery. [Id.] Counsel for Harris attaches a Rule 56(d) affidavit to this effect.
[R. 19-1.] While Harris also responds substantively to China Containers’ motion, the
Court need not address this portion of his response at this time because the Court agrees
with Harris that summary judgment is premature. [R. 19.] This conclusion is supported
by controlling precedent.
In White's Landing Fisheries, Inc. v. Buchholzer, the Sixth Circuit concluded that
a pre-discovery motion for summary judgment is premature, holding that “the grant of
summary judgment, absent any opportunity for discovery” offends concepts of
fundamental fairness. 29 F.3d. 229, 231 (1994). In coming to this conclusion, the Court
looked to the Supreme Court’s discussion of summary judgment in Anderson v. Liberty
Lobby, 477 U.S. 242 (1986) and Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The
Sixth Circuit noted that after the summary judgment burden shifts, it is the responsibility
of the non-movant to “present affirmative evidence in order to defeat a properly
supported motion for summary judgment.” White's Landing, 29 F.3d at 231 (citing
Celotex, 477 U.S. at 257). In both Anderson and Celotex, the Supreme Court explained
that the non-movant’s responsibility to produce affirmative evidence is contingent on the
non-movant having had the opportunity to conduct discovery. See Liberty Lobby, Inc.,
477 U.S. at 257 (“[T]he plaintiff must present affirmative evidence in order to defeat a
properly supported motion for summary judgment. This is true even where the evidence
is likely to be within the possession of the defendant, as long as the plaintiff has had a
full opportunity to conduct discovery.”); see also Celotex Corp. v. Catrett, 477 U.S. 317,
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322 (1986) (“In our view, the plain language of Rule 56(c) mandates the entry of
summary judgment, after adequate time for discovery…”) (emphasis added in both).
The Court’s holding in White's Landing is consistent with other decisions of the
Circuit. See Plott v. Gen. Motors Corp., Packard Elec. Div., 71 F.3d 1190, 1195 (6th Cir.
1995) (“Before ruling on summary judgment motions, a district judge must afford the
parties adequate time for discovery, in light of the circumstances of the case.”); Glen
Eden Hosp., Inc. v. Blue Cross and Blue Shield of Mich., Inc., 740 F.2d 423, 428 (6th Cir.
1984) (summary judgment was premature since opposing party had filed a proper Rule
56(f) affidavit); Vance By & Through Hammons v. United States, 90 F.3d 1145, 1149
(6th Cir. 1996) (Reversing district court ’s decision not to vacate summary judgment
order after the non-movant informed the district court of their need for additional
discovery.); McKinley v. City of Mansfield, 404 F.3d 418, 443 (6th Cir. 2005) (Finding
that summary judgment was granted prematurely, the Court held that “the district court
abused its discretion because at the time of its highly restrictive discovery order, no
discovery had occurred and the court offered no explanation for limiting discovery.”);
LGT Enterprises, LLC v. Hoffman, 2008 WL 5744180 (W.D. Mich. Dec. 17, 2008)
(Court denies without prejudice summary judgment motion, granting leave to re-file
following jurisdictional discovery.); Fifth Third Bank v. Jefferson Pilot Sec. Corp., 2007
WL 773734 (W.D. Ky. Mar. 8, 2007) (After reviewing the record, the Court held
summary judgment was premature as the parties had not conducted any discovery.);
Brock v. Marymount Med. Ctr., Inc., 2007 WL 196895 (E.D. Ky. Jan. 23, 2007).
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III
The issues surrounding the service of Jiangsu have placed this case in an awkward
procedural posture. Nevertheless, the law is clear that Harris must be provided the
opportunity to conduct adequate discovery before the Court may consider the substantive
arguments advanced by China Container. Following that discovery, China Container will
be permitted to refile its motion.
Accordingly, the Court being sufficiently advised, it is hereby ORDERED:
1.
China Container’s Motion for Summary Judgment [R. 14] is DENIED
without PREJUDICE with leave to refile;
2.
China Containers’ Motion to Strike Docket Entry 21 [R. 22] is
GRANTED; and,
3.
The Plaintiff SHALL, within seven (7) days of the filing of this Order,
provide the Court with an updated status report as to the service of Jiangsu.
This 18th day of September, 2014.
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