Phillips v. The Nunes Company
Filing
49
ORDER granting 30 Motion for Summary Judgment Signed by Magistrate Judge Jeremiah C. Lynch on 3/3/2014. (TXB, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BUTTE DIVISION
GAIL PHILLIPS,
CV 13–53–BU–JCL
Plaintiff,
ORDER
vs.
WALMART, INC., a corporation; THE
NUNES COMPANY, INC.,
a corporation; TAYLOR FARMS
CALIFORNIA, INC., a corporation; and
JOHN DOES 1-8,
Defendants.
This products liability and negligence action comes before the Court on
Defendant The Nunes Company’s (“Nunes”) motion for summary judgment, and
Plaintiff Gail Phillips’ (“Phillips”) request for relief pursuant to Federal Rule of
Civil Procedure 56(d). For the reasons set forth below, Phillips’ request for Rule
56(d) relief is denied, and Nunes’ motion for summary judgment is granted.
I.
Background
On March 11, 2013, Phillips was allegedly injured while preparing
sandwiches in the deli department of the Wal-Mart in Bozeman, Montana, when
her hand was punctured by a foreign object in bag of lettuce. Phillips returned the
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bag of lettuce to the cooler, and it was subsequently disposed of. Because the bag
of lettuce was not preserved, it has not been subject to inspection by any of the
parties.
In response to discovery requests asking her to describe the bag and the
lettuce, however, Phillips has answered that she “used prewashed, Romaine leaf
lettuce that [she] got from the deli cooler. It was packaged in a sealed plastic
bag.” (Doc. 32-1, at 5). Phillips elaborated as follows in a supplemental answer:
This was loose, leaf lettuce. It came in a clear, unmarked plastic bag. The
bag was heat sealed and roughly 12" by 8" in size. I used a knife from the
deli to open the bag. I made 12" submarine sandwiches with the lettuce and
other ingredients. The lettuce was not modified from the form it was
packaged in to make the sandwiches.
(Doc. 32-4, at 2).
Based on their own initial investigation, Phillips’ counsel identified Taylor
Farms California, Inc. as the lettuce distributor. In May 2013, an individual who
was handling Wal-Mart’s subrogation claim against Phillips indicated in response
to an inquiry from Phillips’ counsel that Nunes was a Wal-Mart produce supplier
and provided a Universal Product Code (“UPC”) number.1 (Doc. 35-5, at 1)
1
This Court has previously recognized that “[u]nauthenticated documents
cannot be considered in a motion for summary judgment.” Sullivant v. Spectrum
Medical Servs., 2013 WL 265992 *5 (D. Mont. Jan. 23, 2013). Nunes points out
that the claim notes referencing this exchange between Phillips’ counsel and the
Wal-Mart claims handling representative have not been properly authenticated.
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In June 2013, Phillips commenced this action against Nunes in state court,
alleging that Nunes produced the contaminated bag of lettuce and sold it to WalMart. Nunes later removed the case to this Court based on diversity jurisdiction,
and Phillips has since amended her complaint to add Walmart, Inc. and Taylor
Farms as defendants. Phillips brings a claim for products liability against Nunes
and Taylor Farms, alleging that one of them manufactured and supplied the
defective bag of lettuce to Walmart. Phillips also asserts a negligence claim
against Taylor Farms, and a spoliation claim against Walmart for allegedly
destroying the bag of lettuce.
Nunes moves for summary judgment on the ground that Phillips cannot
make out a prima facie claim of products liability.2
II.
Summary Judgment Standards
Under Federal Rule of Civil Procedure 56(a), a party is entitled to summary
As discussed below, however, Nunes is entitled to summary judgment even
considering this unauthenticated evidence.
2
Phillips filed her Third Amended Complaint on January 27, 2014, several
weeks after Nunes filed its motion for summary judgment. Because the products
liability claim alleged against Nunes in the Third Amended Complaint is
substantively the same as that alleged in the Second Amended Complaint (Doc.
25), the Court will construe Nunes’ summary judgment motion as relating to the
newly amended pleading.
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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.” The party seeking
summary judgment bears 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 admissions on file, together with the affidavits, if any, which it
believes demonstrate the absence of any genuine issue of material fact. Celotex
Corp. v. Cattrett, 477 U.S. 317, 323 (1986).
Where, as here, the moving party does not bear the ultimate burden of
persuasion at trial, it “has both the initial burden of production and the ultimate
burden of persuasion on a motion for summary judgment.” Nissan Fire & Marine
Ins. Co., Ltd. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). To
carry its burden of production, “the moving party must either produce evidence
negating an essential element of the nonmoving party’s claim or defense or show
that the nonmoving party does not have enough evidence of an essential element
to carry it ultimate burden of persuasion at trial.” Nissan Fire, 210 F.3d at 1102.
The moving party may carry its burden of persuasion by showing “that there is no
genuine issue of material fact.” Nissan, 201 F.d at 1102; see also Sluimer v.
Verity, Inc., 606 F.3d 584, 586 (9th Cir. 2010) (“The moving party need only point
out to the Court that there is an absence of evidence to support the non-moving
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party’s case.”).
Once the moving party has satisfied its initial burden with a properly
supported motion, summary judgment is appropriate unless the non-moving party
designates by affidavits, depositions, answers to interrogatories or admissions on
file “specific facts showing that there is a genuine issue for trial.” Celotex, 477
U.S. 317, 324 (1986). The party opposing a motion for summary judgment “may
not rest upon the mere allegations or denials” of the pleadings. Anderson. v.
Liberty Lobby, 477 U.S. 242, 248 (1986).
In considering a motion for summary judgment, the court “may not make
credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing
Prods., 530 U.S. 130, 150 (2000); Anderson, 477 U.S. at 249-50. The Court must
view the evidence in the light most favorable to the non-moving party and draw all
justifiable inferences in the non-moving party’s favor. Anderson, 477 U.S. at 255.
III.
Discussion
Nunes argues that Phillips’ products liability claim should be summarily
dismissed because she cannot establish that Nunes manufactured and sold the bag
of lettuce. Even if she could, Nunes argues Phillips’ claim would nonetheless fail
as a matter of law because the undisputed evidence establishes that the bag of
lettuce was substantially modified by the time of her injury.
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The Montana Supreme Court has adopted the theory of strict products
liability set forth in Restatement (Second) of Torts § 402A.3 Patch v. Hillerich &
Bradsby Co., 257 P.3d 383, 387 (Mont. 2011). Section 402A is codified at Mont.
Code Ann. § 27-1-719, which provides in relevant part:
(2) A person who sells a product in a defective condition unreasonably
dangerous to a user or consumer...is liable for physical harm thereby caused
to the ultimate user or consumer... if:
(a) the seller is engaged in the business of selling the product; and
(b) the product is expected to and does reach the user or consumer without
substantial change in the condition in which it is sold.
The Montana Supreme Court has interpreted this statute as requiring that a
plaintiff prove the following elements to establish a prima facie claim of strict
product liability: “(1) The product was in a defective condition, ‘unreasonably’
dangerous to the user or consumer; (2) The defect caused the accident and injuries
complained of; and (3) The defect is traceable to the defendant.” Wood v. Old
Trapper Taxi, 952 P.2d 1375, 1379 (Mont. 1997) (quoting Brown v. North Am.
Mfg. Co., 576 P.2d 711, 717 (Mont. 1978)).
Nunes argues that Phillips cannot prevail on her products liability claim
3
Sitting in diversity jurisdiction, this Court applies the substantive law of
Montana as the forum state. See Medical Laboratory Mgmt. Consultants v.
American Broadcasting Companies, Inc., 306 F.3d 806, 812 (9th Cir. 2002).
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because she has no evidence that it manufactured and sold the allegedly defective
bag of lettuce. Phillips has described the lettuce she was using at the time of her
injury as “prewashed, Romaine leaf lettuce” that “was packaged in a sealed plastic
bag.” (Doc. 32-1, at 5). She recalls that “[t]his was loose, leaf lettuce” from “a
clear, unmarked plastic bag,” which “was heat sealed and roughly 12" by 8" in
size.” (Doc. 32-4, at 2).
Nunes has sustained its prima facie burden under Rule 56 by coming
forward with evidence that it did not sell lettuce fitting this description. Mark
Crossgrove, the Vice President of Sales for Nunes, states in a supporting affidavit
that Nunes does not sell any Romaine lettuce product matching Phillips’
description. (Doc. 32-5, ¶ 5). As to the lettuce itself, Crossgrove explains that
Nunes does not sell prewashed Romaine lettuce, and “[a]ll bags of Romaine
lettuce state clearly ‘Wash Before Using.’” (Doc. 32-5, ¶ 6). Crossgrove also
states that Nunes does not sell any Romaine lettuce product that is “chopped or
separated from the stalk” and “only sells whole head Romaine lettuce with the
stalk still attached.” (Doc. 32-5, ¶ 7). With respect to packaging, Crossgrove
indicates that Nunes “does not sell any Romaine product in a clear plastic bag
without name branding.” (Doc. 32-5, ¶ 8). Each bag produced by Nunes “clearly
and prominently displays the Foxy name, Foxy logo, and the type of lettuce the
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bag contains.” (Doc. 32-5, ¶ 8).
Nunes’ packaging manager, Susan Canales, addresses the UPC code WalMart’s representative apparently provided to Phillips’ counsel. (Doc. 32-3). As
Canales explains it, Nunes uses two types of UPC bar codes – company specific
and generic. (Doc. 32-3, ¶ 4). Nunes’ company-specific UPC number is 73574.
(Doc. 32-3, ¶ 5). Wal-Mart provided Phillips counsel with UPC number 33383
65101, which Canales describes as a generic produce code for “conventional
Romaine lettuce” that does not identify the particular producer. (Doc. 32-3, ¶¶ 7,
9-11). According to Crossgrove, Nunes packaged all of its conventional Romaine
lettuce during the relevant time frame in cellophane bags with blue bottoms and a
picture of the “Foxy” brand fox directly above the word “Foxy” in red letters.
(Doc. 32-5, ¶ 9). Crossgrove also describes those bags as being closed with tape,
rather than sealed “either through the use of heat-sealing or otherwise.” (Doc. 325, ¶ 10).
This affidavit evidence constitutes prima facie proof that the clear, heatsealed bag of loose leaf prewashed Romaine lettuce Phillips has described as the
cause of her injuries was not produced by Nunes.
Phillips nonetheless argues there is a genuine issue of material fact as to
whether Nunes produced the bag of the lettuce based on a declaration by Sean
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Hornof, the Bozeman Wal-Mart shift manager. Phillips claims “Hornof represents
through [his] declaration that Nunes appears to have produced the subject lettuce.”
(Doc. 37, at 5). But Phillips misreads Hornof’s statement.
Hornof explains that at the time of Phillips’ alleged injury, the Wal-Mart
deli was using lettuce supplied by Taylor Farms specifically for the deli. But if the
deli ran out of Taylor Farms lettuce it would have used lettuce sold in the produce
section of the store. (Doc. 35-14, ¶ 3). When that happens, a Merchandise
Transfer is completed within the next few days to reflect the transfer of lettuce
from the produce section to the deli. (Doc. 35-14, ¶ 4). A Merchandise Transfer
dated March 12, 2013 – the day after Phillips’ accident – documents that 16 units
of Romaine lettuce was transferred from the store’s produce section to the deli.
(Doc. 35-14, at 4). At that time, the Romaine lettuce in the produce department
was supplied by Nunes. (Doc. 35-14, ¶ 5).
Hornof thus states that “at the time of Ms. Phillips accident there appears to
have been Romaine lettuce from the Nunes company in use in the Delicatessen.”
(Doc. 35-14, ¶ 5). In closing, however, Hornof says based on Phillips’ description
of the packaging he “would state that the lettuce she was utilizing at the time of
her injury would have been the delicatessen lettuce,” which was produced by
Taylor Farms, “and not the produce section lettuce” produced by Nunes. (Doc.
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35-14, ¶¶ 6-7).
Hornof’s declaration is consistent with the affidavit testimony provided by
Crossgrove and Canales, which demonstrate that Nunes does not manufacture or
sell a product fitting Phillips’ own description of product she was using at the time
of her accident. Because the undisputed evidence thus establishes that Nunes did
not manufacture or sell the allegedly defective product, Phillips’ products liability
claim fails as a matter of law.
Phillips argues she should be given additional time to conduct discovery so
that she can effectively respond to Nunes’ summary judgment motion. Phillips
has thus filed an affidavit pursuant to Fed. R. Civ. P. 56(d) in conjunction with her
summary judgment response brief, requesting additional time to conduct discovery
and an extension of the summary judgment briefing deadlines.
A party seeking relief under Rule 56(d) must show that: “(1) it has set forth
in affidavit form the specific facts it hopes to elicit from further discovery; (2) the
facts sought exist; and (3) the sought-after facts are essential to oppose summary
judgment.” Family Home and Finance Ctr., Inc. v. Fed. Home Loan Mortgage
Corp., 525 F.3d 822, 827 (9th Cir. 2008). If the moving party does not comply
with these requirements, the court may deny discovery and proceed to summary
judgment. Family Home, 525 F.3d at 827.
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Phillips maintains that additional discovery is necessary “[i]n order to
determine whether the lettuce at issue was, in fact, supplied by Nunes and whether
any modification of Nunes’ lettuce created the dangerous condition that caused”
her injury. (Doc. 36, ¶ 16). Phillips explains that for a variety of reasons she has
not yet been able to depose Wal-Mart’s Rule 30(b)(6) representative, and argues in
general terms that such a deposition would “demonstrate whether Nunes is entitled
to summary judgment.” (Doc. 36, ¶ 16).
But Phillips does not identify what specific facts she hopes to elicit from
Wal-Mart or make any showing that those facts exist. As evidenced by her Rule
30(b)(6) deposition notice, Phillips anticipates deposing a Wal-Mart representative
about Wal-Mart’s investigation into the incident, the disposal of the bag of lettuce,
and the identity of the manufacturer, producer, and/or supplier of the lettuce.
(Doc. 36-8, at 2). Of those three topics, only the third is potentially relevant to
Nunes’ summary judgment motion.
Although Phillips has yet to depose Wal-Mart’s representative, Wal-Mart
has provided Hornof’s declaration. As discussed above, Hornof’s declaration and
Crossgrove’s affidavit make clear that Nunes did not manufacture or sell the bag
of lettuce Phillips has described using when she was injured. Significantly,
Phillips does not argue that the express description of the subject bag of lettuce
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she has thus far provided may have been inaccurate, or otherwise question her own
recollection as to the type of lettuce she was using or its packaging. The
undisputed evidence establishes that the bag of lettuce described by Phillips was
not manufactured or sold by Nunes. It is not clear what additional facts Phillips
hopes to discover by deposing a Wal-Mart representative that are not already set
forth in Hornof’s declaration.
Phillips also requests additional time to review Nunes’ responses to her first
set of discovery requests. As Nunes points out in response, however, Phillips did
not serve her discovery requests until December 2013 – approximately five
months after having been put on notice of Nunes’ affirmative defense that another
party was responsible for her alleged injuries. (Doc. 4; 46-1). Nunes timely
answered those discovery requests on January 16, 2014 (Doc. 46-2), and Phillips
apparently received them on January 17, 2014 – the day her summary judgment
response brief was due. (Doc. 36, ¶ 17). While Phillips may not have had the
chance to adequately review those responses before filing her response brief, she
has by now had ample time to do so. But Phillips has not moved for leave to file
an additional brief explaining what specific facts, if any, she might hope to
uncover if she were allowed to conduct additional discovery as to Nunes. See
Local Rule 7.1(d)(1)(D).
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Because Phillips has not identified the specific facts she hopes to elicit or
established that those facts exist, she has not shown that she is entitled to relief
under Rule 56(d). The undisputed evidence before the Court thus establishes that
the bag of lettuce allegedly causing Phillips’ injury was not manufactured or sold
by Nunes.4 Because Phillips cannot establish the necessary elements of her
products liability claim, Nunes is entitled to summary judgment.5
IV.
Conclusion
For the reasons set forth above,
IT IS ORDERED that Nunes’ motion for summary judgment is GRANTED,
and Plaintiff’s request for relief under Fed. R. Civ. P. 56(d) is DENIED.
DATED this 3rd day of March, 2014
Jeremiah C. Lynch
United States Magistrate Judge
4
Having so concluded, the Court need not address Nunes’ argument that the
bag of lettuce had been substantially modified by the time it reached Phillips.
5
In the event discovery from Wal-Mart reveals material facts that create a
genuine issue as to whether Nunes manufactured or distributed the subject bag of
lettuce, Phillips may seek reconsideration of this order under L.R. 7.3(b)(2).
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