Whitley v. KION North America Corporation

Filing 47

Magistrate Judge Judith G. Dein: ORDER entered. MEMORANDUM OF DECISION AND ORDER on 20 Defendant's Motion for Summary Judgment. (Dambrosio, Jolyne)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JAMES WHITLEY,
Plaintiff,
v.
KION NORTH AMERICA
CORPORATION,
Defendant.

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CIVIL ACTION
NO. 16-10005-JGD

MEMORANDUM OF DECISION AND ORDER
ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
March 22, 2017
DEIN, U.S.M.J.
I. INTRODUCTION
The plaintiff, James Whitley, was working as a Longshoreman/Harbor Worker at the
Conley Terminal located in South Boston, Massachusetts on August 31, 2012 when a forklift
truck on which he was riding flipped over and crushed his leg. He brought this products
liability claim against the purported manufacturer of the forklift, who he believed to be
Linde Material Handling North America Corporation. According to the defendant, Linde
Material Handling North America Corporation is now known as Kion North America Corp.
(“Kion”), and the plaintiff amended his complaint accordingly to name Kion as the sole
defendant. The forklift has been destroyed, and there is little identifying information
available about the equipment. However, a photograph of the forklift clearly shows that it
bears the “Linde” logo.

This matter is presently before the court on Kion’s motion for summary judgment.
Docket No. 20. Therein, Kion contends that it did not design, manufacture, distribute or sell
the forklift truck at issue in this action. Kion has submitted the affidavits of its cost
accountant, Jamie Barnaby, and its General Product Manager, Mark Roessler, in support of
its contention. These affidavits refer to Kion and its “predecessor companies” but do not
identify those companies. Moreover, the affidavits indicate that the computer system
searched by the defendant contains data that only goes back to 2001.
The plaintiff has submitted information from the internet showing that “Linde
Material Handling” is still in existence and still manufactures forklifts. Moreover, no other
“Linde” entity is identified as a forklift manufacturer, and there is a great deal of confusion
in the publicly available information concerning the relationships between the Linde
entities and the Kion group of companies. This court recognizes that the plaintiff has not
challenged Kion’s factual assertions directly, or under oath. Nevertheless, a review of the
record leaves the critical material fact as to the identity of the manufacturer in dispute.
There is no evidence that any entity other than one for which Kion would be responsible
could have manufactured a forklift bearing the Linde logo that was used in Massachusetts
in 2012. This issue was not addressed in the affidavits submitted by Kion, despite the fact
that the information would seemingly be within the defendant’s knowledge and control.
The burden is on the party moving for summary judgment to show “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). This court finds that Kion has not met this burden, and the
motion for summary judgment is DENIED WITHOUT PREJUDICE. Kion may renew its
motion if it can demonstrate that another entity (for which it has no liability) could have

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manufactured the forklift with the Linde logo depicted in the photograph submitted by the
plaintiff. If a renewed motion is not filed within 30 days, this court will hold a status
conference to set a discovery schedule.
II. STATEMENT OF FACTS
The plaintiff was working on a forklift truck at the Conley Terminal in South Boston
on August 31, 2012, when the machine flipped over and crushed his leg. The forklift was
owned by Massport. Massport allegedly refused to allow the equipment to be photographed or inspected after the incident, and the forklift was subsequently destroyed. Pl.
Opp. (Docket No. 34) at 2. Massport did provide a serial number for the equipment
(EIX317T00006) and described it as “LInde #3.” See Kion’s Statement of Undisputed
Material Facts ¶ 4.1 At some point, the plaintiff did obtain a photograph of the forklift,
which bears the logo “Linde,” as well as the name “MIJACK.” Pl. Opp. at 2, Ex. A. According
to the plaintiff, MIJACK was a distributor of the forklift, but “had no responsibility for
design, manufacture or quality control of the Linde machine involved in this incident.” Pl.
Opp. at 2.
Mr. Whitley filed suit against Linde Material Handling North America Corporation
and Kion North America Corporation on August 27, 2015 in Suffolk Superior Court. SF
¶ 10. Counsel for the defendants provided proof to the plaintiff that “Linde Material
Handling North America Corporation” had changed its name to “Kion North America
Corporation” on December 29, 2014, and that the two companies were, therefore, one in

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In addition to its original statement of undisputed material facts, Kion filed a supplement to its
statement of facts and responded to the plaintiff’s additional facts. Since they are all consecutively
numbered, they will all be cited as “SF” and can be found at Docket No. 22 (SF ¶¶ 1-9), Docket No.
38 (SF ¶¶ 10-12), and Docket No. 36 (SF ¶¶ 13-21).

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the same. Pl. Opp. at 2-3; Abrams Aff. (Docket No. 37) ¶ 3, Ex. 1. Therefore, the plaintiff
filed an amended complaint, naming Kion as the only defendant. Pl. Opp. at 2-3. The case
was then transferred to this court on January 5, 2016. The parties consented to having the
case decided by a Magistrate Judge pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73.
Docket No. 16.
Kion filed its motion for summary judgment on June 8, 2016, contending that it did
not design, manufacture, distribute, or sell the forklift truck at issue in this litigation.2 In
support of its motion, Kion filed the affidavit of Mark Roessler, who had been employed by
Kion, “or its predecessor companies,” since 1977. Roessler Aff. (Docket No. 24) ¶ 2. Mr.
Roessler attested that he has been responsible for Sales & Product Management, and was
familiar with every type of equipment that the company had built or sold during his tenure.
Id. ¶ 3. He also attested that these companies had not built or sold the forklift depicted in
the photograph provided by the plaintiff, which he identified as a C80/6 having the ability
to stack containers up to six high. Id. ¶¶ 4-5. Moreover, the only similar machine that the
company had sold, a C80/5, which apparently had the ability to stack containers only up to
five high, had been sold to a company in Canada, and had been taken out of service
“approximately five years ago.” Id. ¶ 4.3
Kion also submitted the affidavit of its cost accountant, Jamie Barnaby, who had
been employed by Kion “or its predecessor companies,” since 1998. Barnaby Aff. (Docket

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Since it is undisputed that if Kion did not design, manufacture, distribute or sell the forklift at
issue it has no liability in this case, this court will not discuss in detail the legal issues raised in the
complaint. Suffice it to say, the plaintiff has brought claims of negligence and breach of implied
warranty of merchantability.
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Mr. Roessler does not explain how he was able to identify the equipment depicted in the
photograph, or how he could distinguish between the two types of forklifts.

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No. 23) ¶ 2. He reviewed the company’s “computer systems that store all the records for
every lift sold by KION NA and its predecessor companies since April 1, 2001, as well as all
records of trucks sold prior to that date for which we processed a warranty claim after
April 1, 2001.” Id. ¶ 3. This review established that KION had not sold any equipment with
the serial number Massport had identified since 2001, or processed a warranty on
equipment with that serial number since 2001 even if it had been purchased before then.
Id. ¶¶ 3-4. Similarly, the computer records contained “no record of any equipment being
registered to the Port of Massachusetts, the alleged owner of the equipment involved in this
case.” Id. ¶ 5. There is no evidence in the record as to how long forklifts usually remain in
use.
In opposing Kion’s motion for summary judgment, the plaintiff filed a request
pursuant to Fed. R. Civ. P. 56(d) to take discovery on the issue of the identity of the
manufacturer. Docket No. 25. The court allowed this request, and the plaintiff obtained
written discovery from Kion. See SF ¶¶ 18, 20. According to Kion, the plaintiff had the
opportunity to pursue additional discovery, but elected not to do so. See SF ¶¶ 19-21. It is
undisputed that plaintiff did not depose Kion’s affiants, or serve third-party subpoenas on
Massport, the alleged owner of the forklift, or MIJACK, the alleged distributor of the forklift.
See Bishop Aff. (Docket No. 45-1) ¶ 3.
Kion then renewed its motion for summary judgment, Docket No. 35, and the
plaintiff renewed his opposition. Docket No. 34. In opposing the motion for summary
judgment, the plaintiff wrote as follows:
Linde Material Handling is a company that is still in existence and
manufactures the vehicle that is the subject of Mr. Whitley’s complaint.
Linde Material Handling has its own website and it is associated with the
Linde Heavy Truck website. The website indicates that Linde Heavy
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Truck is a German entity. Looking at either site, the two named Linde
entities are synonymous.
When a search is conducted on either site to find one of their companies,
KION North America is found as a “partner” located in Summerville, SC.
All of the Linde and KION companies are congruent and manufacture lift
and reach trucks. The Linde companies are significantly tied together and
promote themselves as one company by way of their website. Based
upon the misinformation and disinformation from MASSPORT and the
crossover on the Linde websites, if this court finds that the defendant is
misnamed, Mr. Whitley should be allowed to amend his complaint to add
the proper party.
Pl. Opp. at 3-4. The photograph of the forklift truck, and the webpage for “Linde Material
Handling” with a copyright date of 2016, are attached as exhibits to the Opposition.4
Oral argument on the renewed motion for summary judgment was held on
December 21, 2016. At that time, the court took the motion under advisement, stayed
discovery, and gave the plaintiff 45 days to file a motion to amend his complaint. Docket
No. 43. On February 3, 2017, plaintiff filed a motion to amend the complaint. Docket No.
44. Therein, plaintiff was still unable to identify the manufacturer of the forklift, and stated
only that notices had been sent to Linde-Material Handling GmbH, Linde-Material Handling
GmbH (Plant II), Linde-Material Handling GmbH (Plant III), and Linde Heavy Truck Division
Ltd., alleging that each entity had manufactured the forklift truck at issue. In the letters,

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This court also located the case of Toyota Indus. Equip. Mfg., Inc. v. Land, No. 1:14-cv-1049-JMSTAB, 2014 WL 3670133 (S.D. Ind., Indianapolis Div., July 21, 2014), wherein Toyota sought and
obtained a preliminary injunction against a former employee who went to work at “Linde Material
Handling North America Corporation.” In that case, the court found that “Linde’s corporate parent,
Kion Group, has publicly announced its goal to overtake Toyota as the world’s largest manufacturer
of lift trucks by 2020.” Id. at *3, ¶ 29. Thus, there is evidence that before the “name change” from
Linde to Kion, Linde was a separate corporation from Kion.

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plaintiff’s counsel also stated his intention to add each party to the litigation. Id. ¶¶ 7-8, Ex.
B.5 No response to these letters had apparently been received. Id. ¶ 8.
In his motion to amend the complaint, the plaintiff also repeated the language
quoted above about the confusion of the Linde entities. Id. at 2-3. No proposed amended
complaint was attached to the motion, and the plaintiff did not seek leave to amend his
complaint to allege that the defendant Kion has liability even if another Linde entity is
found to be the manufacturer of the forklift.
Kion then filed a “Response” to the motion to amend, objecting, inter alia, to the
plaintiff’s failure to properly identify the new parties, or to serve them with a motion to
amend, or to give any notice to them of a hearing on the motion to amend. Docket No. 45.
On February 22, 2017, this court denied the motion to amend without prejudice for failure
to comply with Local Rule 15.1(b), which governs the addition of new parties. No further
action has been taken in this case. Docket No. 46.
III. ANALYSIS
Kion has consistently taken the position that it did not design, manufacture,
distribute or sell the forklift at issue in this action. Unfortunately, however, it is not clear
that Kion has the ability to fully search its records to cover all avenues of inquiry. For

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Each letter references the case of James Whitley v. Kion North America Corporation C.A. No.: 16cv-10005, but does not identify the court in which the case is pending. The notices each state:
Please be advised that this office represents James Whitley in a claim against Kion North
America Corporation for an incident that occurred when a Linde forklift truck flipped over
and crushed the plaintiff’s leg. It has recently come to our attention, that the actual
manufacturer of the Linde forklift truck identified by its serial number, EIX317T00006 is
[addressee]. Please consider this letter as notice that we intend to bring the proper party,
[addressee] into the above referenced matter.
Docket No. 44, Ex. B.

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example, but without limitation, based on the record presently before this court, it is
unclear whether Kion has access to the records of Linde Material Handling, either when it
was a stand-alone company or after it became affiliated with Kion. Moreover, it is unclear
whether searching records back to 2001 is sufficient. Similarly, but again without limitation, there is no explanation of how reviewing the photograph is sufficient to establish that
Kion sold a similar, but not this exact, piece of equipment.
This court also does not have the information needed to understand the relationship
between Kion and Linde. For example, while the defendant has produced information that
Linde Material Handling became Kion in 2014, there is evidence that Linde Material
Handling continues to exist and to manufacture forklifts. This confusion precludes this
court from finding that Kion has established that it is not responsible for the forklift at issue
in this case.
Fundamentally, the plaintiff has produced a photograph of a forklift with the
distinctive Linde logo. Presumably, then, the forklift was manufactured by a Linde entity.
Publicly available information does not distinguish between different Linde entities in
identifying the manufacturer of Linde equipment. If the defendant wants the court to make
such a distinction, it needs to provide this court with sufficient information.
III. ORDER
For the reasons detailed herein, this court finds that there are material facts in
dispute as to the identity of the manufacturer of the Linde forklift at issue in this litigation.
Kion’s motion for summary judgment (Docket No. 20) is DENIED WITHOUT PREJUDICE.
Kion may renew its motion if it can demonstrate that another entity (for which it has no
liability) could have manufactured the forklift with the Linde logo depicted in the

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photograph submitted by the plaintiff. If a renewed motion is not filed within 30 days, this
court will hold a status conference to set a discovery schedule.
/ s / Judith Gail Dein
Judith Gail Dein
United States Magistrate Judge

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