Mokh v. Home Depot U.S.A., Inc.
OPINION AND ORDER granting 10 Motion for Summary Judgment. Signed by District Judge Sean F. Cox. (JHer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 10-11454
Honorable Sean F. Cox
Home Depot U.S.A., Inc.,
OPINION & ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
Plaintiff Daher Mokh (“Plaintiff”) originally filed this action against Defendant Home
Depot U.S.A., Inc. (“Defendant” or “Home Depot”) in Wayne County Circuit Court, asserting
state law negligence and product liability claims. Plaintiff’s claim arises from an incident in
which Plaintiff sustained injuries from a unpackaged utility knife offered for sale at one of
Defendant’s retail stores. Defendant removed this case to this Court on April 12, 2010. The
matter is currently before the Court on Defendant’s Motion for Summary Judgment. Plaintiff
failed respond to Defendant’s motion and did not appear at the June 9, 2011 hearing on this
matter. For the following reasons, the Court GRANTS Defendant’s motion.
Plaintiff has not made any effort to prosecute this case since its filing in February of
2010. Initially, Plaintiff failed to appear to a scheduling conference on July 14, 2010, for which
this Court had previously issued a notice to appear on June 14, 2010. (Doc. No. 6). After the
close of discovery, Defendant filed the instant Motion for Summary Judgement on February 16,
2011. On March 3, 2011, this Court sent written notice to the parties advising that Defendant
had filed the above motion and scheduling the motion to be heard by the Court on June 9, 2011.
(Doc. No. 12). At oral argument, defense counsel stated that she not only served Defendant’s
motion upon Plaintiff electronically, but also that she mailed a copy of Defendant’s motion to
Plaintiff’s counsel on February 17, 2007.
Pursuant to Rule 7.1(c) of the Local Rules for the United States District Court for the
Eastern District of Michigan, a “respondent opposing a motion must file a response, including a
brief and supporting documents then available.” Rule 7.1(e) further provides that a response to a
dispositive motion must be filed within 21 days after service of the motion.
Thus, if Plaintiff opposes Defendant’s pending motion, Plaintiff was required to file a
brief in opposition to same within 21 days of service of the motion. Although the time permitted
under Local Rule 7.1 for filing a response to the pending motion had passed, as of April 26,
2011, no brief in opposition to the motion had been filed by Plaintiff.
Accordingly, Plaintiff was ordered to show cause, in writing, no later than May 3, 2011,
why the unopposed pending Motion for Summary Judgment filed by Defendant should not be
granted. (Doc. No. 13). Nevertheless, Plaintiff has not responded to this Court’s order to show
cause or Defendants’ motion.
On May 5, 2011, the Court received an electronic notice that mail sent to Plaintiff’s
counsel was returned as undeliverable because Plaintiff’s counsel failed to update his current
office address with the Court. As a courtesy, this Court called counsel’s office on May 13, 2011
and spoke to his secretary. After speaking to counsel’s secretary and asking her to update
counsel’s address with the Court, the Court faxed the show cause order directly to Plaintiff’s
counsel, and allotted Plaintiff’s counsel an additional seven days to respond to the Court’s order
to show cause. Still, Plaintiff’s counsel failed to respond to the Court’s order to show cause and
On June 9, 2011, the Court held a hearing on Defendant’s motion and Plaintiff’s counsel
did not appear.
On July 21, 2009, Plaintiff was shopping at a the Home Depot store in Dearborn Heights,
Michigan. After entering the store, Plaintiff picked up a bucket that he intended on purchasing
and continued with his shopping. Without inspecting the package or the knife, Plaintiff selected
a Husky brand utility knife displayed from a hanging pegboard and dropped it in the bucket that
he was carrying. Plaintiff did not inspect or examine the packaging of the knife, or the knife
itself, before placing it in the bucket.
After placing the knife in his bucket, Plaintiff noticed that the knife had come out of its
packaging. Shortly thereafter, Plaintiff observed that the packaging of the knife read
“SQUEEZE ME.” When the handle of the knife is squeezed, a pre-loaded blade protrudes from
the base of the knife. If the knife is packaged, the blade is shielded by a hard, plastic cap when
the handle is squeezed.
Plaintiff subsequently removed the unpacked knife from his bucket and squeezed the
handle of the knife with his left hand while his right hand rested on top of the blade opening.
When the blade popped out as a result of Plaintiff squeezing the handle, it cut his right index
STANDARD OF REVIEW
Summary judgment “shall be rendered forthwith 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). The party seeking summary judgment has the initial
burden of informing the court of the basis for its motion and identifying those portions of the
pleadings, depositions, answers to interrogatories, and admission on file together with the
affidavits which it believes demonstrate the absence of a genuine issue of material fact. Celotex
v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the nonmoving party who “must
set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting FED. R. CIV. P. 56(e)). In deciding a motion for
summary judgment, a court must view the evidence and draw all reasonable inferences in favor
of the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
Plaintiff’s complaint alleges two counts: 1) Negligence, and 2) Product Liability. With
regard to Plaintiff’s product liability claim, Plaintiff simply alleges that “the knife was defective
in a way which was unreasonable, inherently dangerous, and made said knife unsafe for
marketing.” (Complaint at ¶ 14). Plaintiff does not allege any facts describing how the knife
was defective or how the alleged defect caused Plaintiff’s injury.
Defendant contends it is not liable for any product liability claim because the Michigan
Tort Reform Act bars recovery from non-manufacturing sellers unless a plaintiff shows
negligence on the part of the defendant. Although Plaintiff asserts two separate counts for
negligence and product liability, the claims, under M.C.L. § 600.2947(6), are not independent of
each other when they are brought against a non-manufacturing defendant. See Hastings Mut.
Ins. v. Gen. Motors Corp., 2005 WL 711767 at *3 (Mich.Ct.App. March 29, 2005).
M.C.L. § 600.2947(6) provides:
In a product liability action, a seller other than a manufacturer is not
liable for harm allegedly caused by the product unless either of the
following is true:
(a) The seller failed to exercise reasonable care, including
breach of any implied warranty, with respect to the product
and that failure was a proximate cause of the person's injuries.
(b) The seller made an express warranty as to the product, the
product failed to conform to the warranty, and the failure to
conform to the warranty was a proximate cause of the
M.C.L. § 600.2947(6).
The Sixth Circuit has agreed with Defendants interpretation of M.C.L. § 600.2947(6),
and has stated:
This Court has interpreted [M.C.L. § 600.2947(6)] to indicate ‘that
the legislature did not intend failure to exercise reasonable care and
breach of implied warranty to be separate products liability claims.’
Thus, the statute ‘added an element of fault to the traditional breach
of implied warranty,’ and so ‘the plaintiff must show that the product
was sold in a defective condition, the defect caused his injury, and the
seller failed to exercise reasonable care.’
Dreyer v. Exel Industries, S.A., 326 Fed.Appx. 353, 358 (6th Cir. 2009) (quoting Croskey v.
BMW of North America, Inc., 532 F.3d 511, 520 (6th Cir. 2008); See also Coleman v. Maxwell
Shoe Company, Inc., et al., 475 F.Supp.2d 685 (E.D. Mich. 2007) (Zatkoff, J.).
Here, Defendant has established that it is a non-manufacturing seller of the utility knife at
issue. (See Def. Mtn., Ex.5). Thus, Plaintiff must establish “that the product was sold in a
defective condition, the defect caused his injury, and the seller failed to exercise reasonable
care1.” Croskey v. BMW of North America, Inc., 532 F.3d at 520. In determining whether a
defendant has failed to exercise reasonable care, courts look to whether a plaintiff has
Plaintiff does not allege a claim for breach of implied warranty.
demonstrated that the defendant knew, or should have known, of the defect. See Kraft v. Dr.
Leonard's Healthcare Corp., 646 F.Supp. 2d 882, 888 (E.D. Mich. 2009) (Ludington, J.).
Plaintiff, however, has not responded to Defendant’s motion for summary judgment, and
has failed to provide any evidence establishing any of these three elements. Conversely,
Defendant presented the deposition testimony of Plaintiff, which reveals that Plaintiff failed to
read the warning labels on the packaging, the utility knife worked precisely as designed and
advertised, and that Plaintiff did not notify any Home Depot employee that the knife’s packaging
was damaged prior to testing the knife. Plaintiff also admitted that, when properly packaged, the
blade of the knife is covered. Plaintiff further stated that he had no facts to suggest that any
Home Depot employee knew of the alleged defect.
Plaintiff has failed to produce any evidence demonstrating that the knife at issue was
defective in any way, or that Defendant failed to exercise reasonable care in detecting any
alleged defect. In fact, Plaintiff has failed to allege a single material fact to establish any of his
claims. Thus, Plaintiff's claim against Defendant fails as a matter of law. In viewing all
evidence in a light most favorable to the Plaintiff, Plaintiff has failed to establish a genuine issue
of material fact with regard to his negligence claim, and in turn, his product liability claim.
For the reasons set forth above, the Court GRANTS WITH PREJUDICE Defendant’s
Motion for Summary Judgment.
IT IS SO ORDERED.
S/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: June 21, 2011
I hereby certify that a copy of the foregoing document was served upon counsel of record on
June 21, 2011, by electronic and/or ordinary mail.
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