Johnston v. Gilster-Mary Lee Corporation

Filing 15

OPINION and ORDER Granting Defendant's 11 Motion for Summary Judgment. Signed by District Judge Stephen J. Murphy, III. (DPar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SALLY JOHNSTON,
Plaintiff,

Case No. 2:17-cv-10482

v.

HONORABLE STEPHEN J. MURPHY, III

GILSTER-MARY LEE
CORPORATION,
Defendant.
______________________________/
OPINION AND ORDER GRANTING
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [11]
Plaintiff Sally Johnston claims a stepstool collapsed beneath her, resulting in
injury. The stool was manufactured by B & R Plastics, a subsidiary of Defendant GilsterMary Lee Corporation, so Johnston filed the instant suit. The Complaint alleges four
counts under Michigan law: breach of implied warranty of merchantability (Count I),
negligence in design and manufacture (Count II), negligence generally (Count III), and
gross negligence (Count IV). Now before the Court is Defendant's motion for summary
judgment. The Court held a hearing and, for the reasons below, will grant the motion.
STANDARD OF REVIEW
Summary judgment is proper if 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). A
fact is material for purposes of summary judgment if its resolution would establish or
refute an "essential element[] of a cause of action or defense asserted by the parties[.]"
Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984).

In considering a motion for summary judgment, the Court must view the facts and
draw all inferences in the light most favorable to the non-moving party. Stiles ex rel.
D.S. v. Grainger Cty., Tenn., 819 F.3d 834, 848 (6th Cir. 2016). The Court must then
determine "whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a matter
of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986). And although the
Court may not make credibility judgments or weigh the evidence, Moran v. Al Basit LLC,
788 F.3d 201, 204 (6th Cir. 2015), a mere "scintilla" of evidence is insufficient to survive
summary judgment; "there must be evidence on which the jury could reasonably find for
the plaintiff," Anderson, 477 U.S. at 252.
DISCUSSION
In Michigan, there are two theories of recovery in product-liability claims:
negligence and implied warranty. Michels v. Monaco Coach Corp., 298 F. Supp. 2d 642,
647 (E.D. Mich. 2003) (citing Manzoni v. Detroit Coca–Cola Bottling Co., 363 Mich. 235,
241 (1961) and Spence v. Three Rivers Builders & Masonry Supply, Inc., 353 Mich.
120, 135 (1958)). Plaintiff alleges both theories in her complaint.. Although the elements
of Plaintiff's causes of action differ, see Lagalo v. Allied Corp., 457 Mich. 278, 287, n.11
(1998), there is a common and necessary thread to both theories: the product must
have actually had a defect, Smith v. E. R. Squibb & Sons, Inc., 405 Mich. 79, 89 (1979)
(explaining that negligence requires proof "that the defect was caused by the
manufacturer's negligence, whereas under the warranty theory, plaintiff need only
establish that the defect was attributable to the manufacturer[.]") (emphasis added);
see also Gregory v. Cincinnati Inc., 450 Mich. 1, 9 (1995) ("Generally, before there can

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be any continuing duty—whether it be to warn, repair, or recall—there must be a defect
or an actionable problem at the point of manufacture. If there is no defect or actionable
problem at this point, then there can be no continuing duty to warn, repair, or recall.").
Defendant moved for summary judgment on the grounds that Plaintiff has
provided no evidence of a defect—and with good reason. Defendant sent Plaintiff
interrogatories asking her, pointedly, "[w]hat do you claim to be the defect(s) with the
stool?" ECF 11-5, PgID 119, ¶ 26. She simply answered, "[a]ll defects to the stool have
not yet been completely determined as discovery is still ongoing." Id. The next
question—which presumed an answer to the first—asked, "[a]s to each defect identified
above . . . [w]hat evidence do you have that such a defect exists?" Id., ¶ 27. Plaintiff
answered simply, "Discovery is ongoing. Also, Plaintiff objects under various discovery
rules." Id. at 120. Plaintiff repeated this answer many more times, to many more
straightforward questions. It bears noting that discovery had been open for several
months by then, and was set to close the following month. Depositions likewise failed to
reveal to Defendant any proof in support of Plaintiff's claims. See ECF 11 at 48–52.
Plaintiff's response brief devotes only a single paragraph to rebutting Defendant's
claims; the rest is spent arguing that the Court should permit her more time for
discovery under Federal Rule of Civil Procedure 56(d). Neither argument is persuasive.
The hypothetical terms of Plaintiff's response ("Defendant may have sold a stool to
Plaintiff that did not have thick enough tabs . . . [and] [i]t is likely that the design change
is the reason that the Plaintiff's stool collapsed") reveal that Plaintiff does not have
evidence upon which a reasonable jury could find in her favor. ECF 13, PgID 218. And
she has not shown the necessary "specified reasons" to defer consideration of the

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motion or permit her additional discovery time under Rule 56(d). After a lengthy
discovery period, Plaintiff has no evidence to support her claim—and evidently never
did.
Notwithstanding all of this, the Court held a hearing on the motion. There,
counsel for Defendant argued the merits of its brief, laid out its argument, and again
explained that Plaintiff had still not identified how the stool was defective. Plaintiff's
rejoined only that (1) the stool collapsed, (2) the stool's design was changed at a later
date, and (3) Plaintiff rested on its brief.
The Court will grant Defendant's motion to the extent it seeks summary judgment
but will not impose sanctions at this time. Federal Rule of Civil Procedure 11(c)(2)
requires a motion for sanctions to be made separately from any other motion.
Defendant asked the Court to impose sanctions within its motion for summary judgment,
so it fails to satisfy Rule 11's requirement. Subsection (3) permits the Court to act on its
own initiative, but empowers the Court only to "order an attorney, law firm, or party to
show cause why conduct specifically described in the order has not violated Rule
11(b)." Fed. R. Civ. P. 11(c)(3). Plaintiff's counsel may very well have filed the lawsuit
and subsequent response brief without believing that its "factual contentions ha[d]
evidentiary support or, if specifically so identified, [would] likely have evidentiary support
after a reasonable opportunity for further investigation or discovery[.]" Fed. R. Civ. P.
11(b)(3). But the matter is not so clear that the Court will demand Plaintiff to show cause
on the matter.

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ORDER
WHEREFORE, it is hereby ORDERED that Defendant's Motion for Summary
Judgment [11] is GRANTED.
SO ORDERED.
s/Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge
Dated: March 26, 2018
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on March 26, 2018, by electronic and/or ordinary mail.
s/David P. Parker
Case Manager

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