Arneauld et al v. Delta Power Equipment Corp. et al
OPINION & ORDER granting 45 Motion for Summary Judgment; granting 49 Motion for Summary Judgment. SO ORDERED that defts' motions seeking summary judgment dismissing the complaint pursuant to Rule 56 of the Federal Rules of Civil Procedure are granted and the complaint is dismissed in its entirety with prejudice. The Clerk of the Court shall enter judgment in favor of defts and close this case. Ordered by Judge Sandra J. Feuerstein on 11/26/2012. (Florio, Lisa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
KENNETH ARNEAULD and LEZLIE ARNEAULD,
PENTAIR, INC. and INTERNATIONAL TOOLS CORP.,
IN CLERK'S OFFICE
U S DISTRICT COURT E D NY
NOV 2 6 Z01Z
LONG ISLAND OFFICE
On June 27, 2011, plaintiffs Kenneth Arneauld and Lezlie Ameauld (collectively,
"plaintiffs") commenced this products liability action against defendants Pentair, Inc. ("Pentair")
and International Tool Corp. ("International Tool"), i/s/h International Tools Corp.,' in the
Supreme Court of the State of New York, County ofNassau. On August 12,2011, Pentair
removed the action to this Court on the basis of this Court's diversity jurisdiction under 28
U.S.C. § 1332(a). Pentair and International Tool (collectively, "defendants") now move for
summary judgment dismissing plaintiffs' complaint in its entirety pursuant to Rule 56 of the
Federal Rules of Civil Procedure. For the reasons set forth below, defendants' motions are
The action against a third defendant Delta Power Equipment Corp. ("Delta Power") was
voluntarily dismissed by stipulation and order dated September 19,2011.
Plaintiffs are citizens of the State ofNew York. (International Tool's Rule 56.1
Statement ["56.1 Stat."],~ 1). Plaintiffs allege, inter alia, that on June 27,2008, Kenneth
Arneauld ("Arneauld") was injured during the course of his employment with All Island Mica
Designs, Inc. ("All Island"), d/b/a All Island Solid Surface Fabricators, when a Delta Unisaw
sold, manufactured, distributed, designed, assembled, created, tested, inspected, produced,
marketed, imported and/or delivered by defendants malfunctioned, failed and/or jammed.
(Compl., ~~ 8-12. 19). Plaintiffs further allege that the Delta Unisaw was defective insofar as it
"was without any guards, warnings or anti-kick back device." (Compl.,
31). In plaintiffs'
response to International Tool's Request for Production of Documents, plaintiffs, inter alia,
denied being in possession of any documents pertaining to the subject Delta Unisaw. (Affidavit
of Alice Spitz in Support oflnternational Tool's Motion for Summary Judgment ["Spitz Aff."],
Ex. H). In plaintiffs' response to International Tool's Interrogatories Set One, plaintiffs indicate,
inter alia: (I) that they are not in possession of information regarding the date on which the
subject Delta Unisaw was purchased, from whom it was purchased, whether it was new or used
when purchased or whether there were any warranties with regard thereto; (2) that the subject
Delta Unisaw was model number 36-920 and had serial number 122-04-10902002-WF2; (3) that
they did not know of any alterations, additions or modifications to the subject Delta Unisaw
subsequent to its leaving its place of manufacture; (4) that Arneauld was cutting a backslash
The facts are taken from International Tool's Rule 56.1 Statement, where undisputed
and supported by the record, and from the documents and exhibits submitted by the parties in
support of, and in opposition to, defendants' motions.
while standing at the time of the accident; (5) that the design of the subject Delta Unisaw was
defective because it failed (a) to include a guard and/or "saw stop" technology and (b) to design a
brake, "kill" or "deadman" switch for moving parts, or any other safety device onto the machine;
(6) that plaintiffs cannot specify the part or component of the subject Delta Unisaw that is
defective; and (7) that plaintiffs were unaware of any express warranty given by Pentair. (Spitz
Aff., Ex. I).
In his report, plaintiffs' expert witness, Leslie N. Wilder ("Wilder"), indicates, inter alia:
(1) that Ameauld was injured while using a table saw to cross-cut a piece of wood stock when a
kickback occurred, causing his right hand to come into contact with the spinning blade,
lacerating his index finger and amputating his last three (3) fingers, which were subsequently
reattached; (2) that the subject Delta Unisaw was "likely" a Delta Model 36-920, manufactured
on or about March of 1999; (3) that the Delta Unisaw's controls included stop and start
pushbuttons, the ability to adjust the elevation of the blade and the ability to tilt the blade to
varying degrees; ( 4) that an adjustable fence was mounted to the machine and table and a miter
gauge was available and stored on the right side of the worktable; (5) that a Delta blade guard
assembly that incorporated a splitter, anti-kickback pawls and a clear plastic blade cover or hood
was mounted to the saw; (6) that Ameauld had been using the fence as a length guide and was
"free-handedly" pushing the strip of wood across the blade when the kickback occurred; (7) that
three (3) protective devices are typically used on table saws, i.e., the blade guard, the splitter or
spreader and the anti-kickback device, and that those devices were combined into a single
guarding assembly attached to the subject Delta Unisaw when Wilder inspected it, although
Ameauld had told him that the guarding assembly had not been attached at any time prior to, or
at the time of, his accident and photographs taken by Ameauld's daughter one (I) week after the
accident depict the saw without the guarding assembly and the table upon which it was mounted
without the cutout necessary for its mounting with the guarding assembly; (8) that the blade of
the subject Delta Unisaw should have been guarded and that had the guard been in place, it likely
would have prevented Ameauld's injury; (9) that complying with the warning on the subject
Delta Unisaw to "Always use the blade guard and splitter for every operation for which it can be
used, including all thru-sawing" is neither simple nor convenient because the splitter must be
removed for non-through cuts and removal and reinstallation of the guard requires the use of
wrenches and, therefore, the manufacturer should have implemented a guard at least as effective
as the splitter, but which would not tend to be removed and not replaced; (I 0) that the subject
Delta Unisaw should have been designed for use with a riving knife guard instead of a splitter;
(II) that the Jack of a guard less likely to be removed and not replaced makes the design of the
subject Delta Unisaw defective and unreasonably dangerous; (12) that the warning label on the
subject Delta Unisaw was not easily seen or read from a user's normal position because it was
mounted to the front of the cabinet housing which was recessed under the tabletop approximately
thirteen inches (13") above the floor, and the thirteen (13) warnings fit into an area that is only
approximately ten to eleven percent (10-11 %) of the label's total area; and (13) that the safety of
the subject Delta Unisaw could also have been improved by incorporating a sound and/or light
warning and a disabling interlock meant to prevent the machine from operating without the
guards in place. (Spitz Aff., Ex. K).
International Tool is a Florida corporation with its principal place of business in Florida,
2; Affidavit of Barry Barnett ["Barnett Aff."], ~ 4), and is a seller/distributor of
industrial power tools in the United States via direct sales and internet sales for various
manufacturers. (56.1 Stat.,~ 7; Barnett Aff., ~ 5). According to Barry Barnett ("Barnett"), the
vice president oflnternational Tool: (I) International Tool does not design or manufacture any of
the power tools that it sells, nor does it service the products of the power tool manufacturers that
it sells, including the subject Delta Unisaw, (Barnett Aff., ~ 6); (2) International Tool only sells
products that are new, it does not sell used equipment or tools, fuh); and (3) his review of
International Tool's past sales records "did not tum up any records involving any sales at any
time prior to the date of [Ameauld's] incident to All Island* * *or directly to [the principals of
All Island] for the subject saw under either model number [provided to him]," (Barnett Aff., ~ 9).
In its disclosure pursuant to Rule 26 of the Federal Rules of Civil Procedure ("Rule 26
disclosure"}, International Tool: (I) denied (a) being in possession of any documents relating to
this action or the subject Delta Unisaw or (b) selling the subject Delta Unisaw; and (2) provided
photographs of the Delta Unisaw indicating, inter alia, (a) that it was manufactured by Delta
International Machinery Corp., (b) that it was model number 34-806 and had serial number 97 L
93804, (c) that it was a ten inch (10") right tilting arbor saw, and (d) that there were thirteen (13)
warnings affixed thereto, including (i) "Always use blade guard and splitter for every operation,
for which it can be used, including all thru-sawing," (ii) "Keep hands out of path of saw blade,"
(iii) "Do not perform any operation free hand. Use fence when ripping and miter gage when
cross-cutting," and (iv) "Know how to avoid risk of kickback." (Spitz Aff., Ex. F).
Pentair is a Minnesota corporation with its principal place of business in Minnesota.
3; Affidavit of Allan Crider ["Crider Aff."],
3). According to Allan Crider
("Crider"), associate general counsel-litigation for Pentair, (Crider Aff., ~ 2), Pentair is a holding
company that directly and indirectly holds the stock of several other companies; does not
manufacture or distribute products in the State of New York; performs no services in the State of
New York; does not design, manufacture or sell Delta Unisaws; and did not design, manufacture
or sell the subject Delta Unisaw. (Crider Aff., ,, 4-6).
On June 4, 2012, Pentair conducted an inspection of the subject Delta Unisaw at All
Island, as a result of which it was determined that the product was a Delta Unisaw Model 34-806
manufactured in December 1997, not a Delta Unisaw Model 36-920 manufactured in March
1999, as assumed by plaintiffs' expert. (Affidavit of Robert A. Faller in Support ofPentair's
Motion for Summary Judgment ["Faller Aff."], Ex. D). According to Pentair, the subject Delta
Unisaw was manufactured by Delta International Machinery Corp. ("DIMC"), a valid, ongoing
corporate entity which is a subsidiary of Black & Decker Inc., which is a subsidiary of The Black
& Decker Corporation, which is a subsidiary of Stanley Black & Decker, Inc. (Faller Aff., Ex.
Andrew Spinaris ("Spinaris") is the vice president of All Island and Steven Lidonnici
("Lidonnici") is the president of All Island. (Spitz Aff., Ex. E at 8). Spinaris testified that in
2008, Arneauld was employed by All Island as a cutter, i.e., he manufactured the countertops and
mill work products All Island needed to be cut and manufactured. (Spitz Aff., Ex. Eat 9-10, 12).
According to Spinaris, Arneauld used a Delta Unisaw table saw to perform his duties.
(Spitz Aff., Ex. E at 16). Spinaris testified that All Island had two (2) Delta Unisaws, but he did
not know when he or Lidonnici bought them and had no records oftheir purchase or
maintenance. (Spitz Aff., Ex. Eat 17-19, 32-33). Spinaris could not recall ever doing business
with International Tool or Pentair and testified that he did not know of any Florida corporations
with which he did business. (Spitz Aff., Ex. Eat 74-76). Spinaris did not know if the Delta
Unisaws had been purchased secondhand or used, (Spitz Aff., Ex. Eat 18), or if he received any
manual or safety instructions when the saws were purchased, (Spitz Aff., Ex. Eat 33-34).
Spinaris testified that All Island still had both Delta Unisaws. (Spitz Aff., Ex. E at 51-52).
On June 27, 2011, plaintiffs commenced this products liability action against defendants
and Delta Power Equipment in the Supreme Court of the State ofNew York, County ofNassau,
which Pentair removed to this Court on the basis ofthis Court's diversity jurisdiction under 28
U.S.C. § 1332(a). In their complaint, plaintiffs assert four (4) causes of action seeking damages:
(1) for negligence in the design, creation, manufacture, assembly, testing, inspection, production,
sales, distribution and selling of the subject Delta Unisaw (first cause of action); (2) strict
products liability (second cause of action); (3) breach of warranty (third cause of action); and (4)
loss of consortium (fourth cause of action).
Prior to an initial conference held before me on October 27, 2011, plaintiffs served their
Rule 26 disclosure and Pentair served plaintiffs with interrogatories and document requests. At
the initial conference on October 27, 2011, inter alia: (1) counsel for Pentair advised the Court
that plaintiffs had failed to serve responses to its interrogatories and document requests; (2)
outstanding discovery was referred to the Honorable E. Thomas Boyle, United States Magistrate
Judge; and (3) a final pretrial conference was scheduled to be held before me on July 24, 2012.
(Doc. No. 13).
Pursuant to the scheduling order of Magistrate Judge Boyle, dated November 2, 2011, all
discovery in this action was to be completed by June 30, 2012. (Doc. No. 14). On November 9,
2011 Pentair moved before Magistrate Judge Boyle to compel plaintiffs' responses to its
interrogatories and document requests, indicating, inter alia, that counsel for Pentair had
demanded responses thereto on October 28,2011 and November 8, 2011. (Doc. No. 15). On
November 16, 2011, counsel for plaintiffs filed opposition to Pentair' s motion indicating, inter
alia, that they intended to serve responses to Pentair's interrogatories and document requests by
November 18,2011. (Doc. No. 17). As a result, Magistrate Judge Boyle "suspended" Pentair's
On January 10, 2012, Pentair moved before Magistrate Judge Boyle for a pre-motion
conference to address the deficiencies in plaintiffs' responses to its interrogatories and document
requests and request leave to file a motion seeking sanctions against plaintiffs pursuant to Rule
37 of the Federal Rules of Civil Procedure. (Doc. No. 18). Pentair also advised that it had
served a subpoena and notice to produce upon All Island on December 9, 20 11 and that All
Island had failed to comply therewith. On February 2, 2012, Magistrate Judge Boyle set a
scheduling order for Pentair's motion for sanctions, pursuant to which Pentair was to serve its
motion by February 15, 2012; plaintiffs were to serve their opposition by March 2, 2012; and
Pentair was to serve its reply by March 9, 2012. (Doc. No. 19).
On March I, 20 12, plaintiffs requested an extension of time to oppose Pentair' s motion
for sanctions until March 23, 2012, (Doc. No. 20), which was opposed by Pentair, (Doc. No. 21).
On March 20, 2012, Magistrate Judge Boyle granted plaintiffs application and extended their
time to oppose Pentair's motion for sanctions until March 23, 2012. After plaintiffs filed their
opposition on March 23, 2012, (Doc. No. 29), Pentair withdrew its motion for sanctions, (Doc.
On April24, 2012, Pentair sought an extension of the discovery deadline from Magistrate
Judge Boyle. (Doc. No. 32). On May 3, 2012, Pentair renewed its application for an extension
of the discovery deadline before me. By order dated May 29,2012, I granted Pentair's
application to the extent of extending the discovery deadline until July 23,2012, (Doc. No. 34),
the day before the final pretrial conference that had been set during the initial conference.
On June 19,2012, Pentair served its Rule 26 disclosure. (Faller Aff., Ex. D).
By letter dated June 27,2012, less than one (I) month before the expiration of the
extended discovery deadline, counsel for plaintiffs advised counsel for International Tool that
they had not received International Tool's Rule 26 disclosure and requested that such disclosure
be provided "as soon as possible." (Affidavit of James V. Durgana ["Durgana Aff."] in
Opposition to International Tool's Motion for Summary Judgment, Ex. D). On June 28, 2012,
Pentair requested a discovery conference before Magistrate Judge Boyle to address outstanding
discovery issues, (Doc. No. 35), with which plaintiffs joined, (Doc. No. 36).
On June 29, 2012, plaintiffs served subpoenas to take the depositions ofLidonnici and
Spinaris on July 13,2012, which were adjourned until July 20,2012. (See Doc. No. 36).
According to plaintiffs, counsel for Pentair advised that they could not attend the depositions on
July 20, 2012 and would not consent to conduct the depositions after the expiration of the
discovery deadline. (See Doc. No. 36).
On July 6, 2012, plaintiffs served upon counsel for Pentair a Request for Production of
Documents and Things and a notice to take the deposition of Crider. (See Doc. No. 36).
On July 10,2012, International Tool served its Rule 26 disclosure. (Durgana Aff., Ex. C).
On July 13,2012, plaintiffs served their expert disclosure. (See Doc. No. 36).
On July 18, 2012, Magistrate Judge Boyle denied Pentair's request for a discovery
On July 20, 2012, only three (3) days prior to the extended discovery deadline, counsel
for plaintiffs served a notice to take the deposition of Barnett on August 16, 2012, after
expiration of the extended discovery deadline. (Durgana Aff., Ex. C).
Defendants now move for summary judgment dismissing plaintiffs' complaint in its
entirety pursuant to Rule 56 of the Federal Rules of Civil Procedure.
Standard of Review
Summary judgment should not be granted unless "the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter oflaw." Fed. R. Civ. P.
56(c). In ruling on a summary judgment motion, the district court must first "determine whether
there is a genuine dispute as to a material fact, raising an issue for trial." McCarthy v. Dun &
Bradstreet Com., 482 F .3d 184, 202 (2d Cir. 2007) (internal quotations and citations omitted);
see Ricci v. DeStefano, 557 U.S. 557, 129 S.Ct. 2658,2677, 174 L.Ed.2d 490 (2009)(holding
that"[ o]n a motion for summary judgment, facts must be viewed in the light most favorable to
the nonmoving party only if there is a 'genuine' dispute as to those facts." (Emphasis added)
(internal quotations and citation omitted)). "A fact is material if it might affect the outcome of
the suit under governing law." Ramos v. Baldor Specialty Foods. Inc., 687 F.3d 554, 558 (2d
Cir. 2012) (quotations and citation omitted); see also Anderson v. Liberty Lobby. Inc, 477 U.S.
242, 248, !06 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Windsor v. United States,- F.3d - , 2012
WL 4937310 (2d Cir. Oct. 18, 2012) (accord). "Where the undisputed facts reveal that there is
an absence of sufficient proof as to one essential element of a claim, any factual disputes with
respect to other elements become immaterial and cannot defeat a motion for summary judgment."
Chandok v. Klessig, 632 F.3d 803, 812 (2d Cir. 2011); see also Celotex Cm:p. v. Catrett, 477
U.S. 317, 322-23, 106 S. Ct. 2548, 91 L.Ed.2d 265 (1986) (holding that summary judgment is
appropriate when the non-moving party has no evidentiary support for an essential element for
which it bears the burden of proof); Powell v. National Board of Medical Examiners, 364 F.3d
79, 84 (2d Cir. 2004) (holding that sununary judgment "is appropriate when, after discovery, the
party • •
* against whom summary judgment is sought, has not shown that evidence of an
essential element of her case- one on which she has the burden of proof- exists.")
If the district court determines that there is a genuine dispute as to a material fact, the
court must then "resolve all ambiguities, and credit all factual inferences that could rationally be
drawn, in favor of the party opposing summary judgment," Spinelli v. Citv of New York, 579
F.3d 160, 166 (2d Cir. 2009) (internal quotations and citation omitted);~ also Jeffreys v. City
of New York, 426 F.3d 549, 553 (2d Cir. 2005) ("When considering a motion for summary
judgment, a court must construe the evidence in the light most favorable to the nonmoving party,
drawing all inferences in that party's favor"), to determine whether there is a genuine issue for
trial. See Ricci, 557 U.S. 557, 129 S.Ct. at 2677. "[A]n issue of fact is 'genuine' if the evidence
is such that a reasonable jury could return a verdict for the nonmoving party." Gould v. Winstar
Communications, Inc., 692 F.3d 148, 158 (2d Cir. 2012) (quotations and citation omitted);~
also Windsor,- F.3d - , 2012 WL 4937310 (accord). "Where the record taken as a whole
could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for
trial." Ricci, 557 U.S. 557, 129 S.Ct. at 2677 (quoting Matsushita Elec. Industrial Co .. Ltd. v.
Zenith Radio Com., 475 U.S. 574, 587, 106 S.Ct. 1348,89 L.Ed.2d 538 (1986)); see also
Fabrikant v. French, 691 F.3d 193,205 (2d Cir. 2012) ("There is no genuine issue of material
fact where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party." (quotations and citation omitted)); Jeffreys, 426 F.3d at 553 ("The judge must ask
not whether the evidence unmistakably favors ones [sic] side or the other but whether a fairminded jury could return a verdict for the plaintiff on the evidence presented." (quotations,
alterations and citation omitted)).
"The moving party bears the burden of establishing the absence of any genuine issue of
material fact," Zalaski v. City of Bridgeport Police Department 613 F.3d 336, 340 (2d Cir.
2010); see also Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir. 2010) (accord), after
which the burden shifts to the nonmoving party to "come forward with specific evidence
demonstrating the existence of a genuine dispute of material fact." Brown v. Eli Lilly & Co., 654
F.3d 347, 358 (2d Cir. 2011); see also F.D.I.C. v. Great American Ins. Co., 607 F.3d 288,292
(2d Cir. 20 I 0). "[W]here the nonmoving party will bear the burden of proof at trial, Rule 56
permits the moving party to point to an absence of evidence to support an essential element of the
nonmoving party's claim." Bay v. Times Mirror Magazines. Inc., 936 F.2d 112, 116 (2d Cir.
1991); see also PepsiCo. Inc. v. Coca-Cola Co., 3!5 F.3d 101, 105 (2d Cir. 2002) ("[T]he burden
on the moving party may be discharged by 'showing'- that is pointing out to the district courtthat there is an absence of evidence to support the nonmoving party's case." (quotations and
citation omitted)); Goenaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir.
1995) ("In moving for summary judgment against a party who will bear the ultimate burden of
proof at trial, the movant's burden will be satisfied if he can point to an absence of evidence to
support an essential element of the non-moving party's claim.")
Once the moving party meets its burden, the nonmoving party can only defeat summary
judgment "by coming forward with evidence that would be sufficient, if all reasonable inferences
were drawn in [its] favor, to establish the existence of'' a factual question that must be resolved at
trial. Spinelli, 579 F.3d at 166 (internal quotations and citations omitted); see also Celotex
477 U.S. at 323, 106 S.Ct. 2548. "The mere existence of a scintilla of evidence in support
of the [non-movant's] position will be insufficient; there must be evidence on which the jury
could reasonably find for the [non-movant]." Hayut v. State Univ. of N.Y., 352 F.3d 733, 743
(2d Cir. 2003) (alterations in original); see also Lyons v. Lancer Ins. Co, 681 F.3d 50,56-7 (2d
Cir. 2012); Jeffreys, 426 F.3d at 554. The nonmoving party cannot avoid summary judgment
simply by asserting "some 'metaphysical doubt as to the material facts[,]'" DeFabio v. East
Hampton Union Free School District, 623 F.3d 71, 81 (2d Cir. 2010), cert. denied, 131 S. Ct.
1578, 179 L. Ed. 2d 475 (2011) (quoting Jeffreys, 426 F.3d at 554); "may not rely on conclusory
allegations or unsubstantiated speculation," Jeffreys, 426 F .3d at 554 (quotations and citations
omitted); see also DiStiso v. Cook, 691 F.3d 226,230 (2d Cir. 2012) ("A court cannot credit a
plaintiffs merely speculative or conclusory assertions"); and must offer "some hard evidence
showing that its version of the events is not wholly fanciful." Miner v. Clinton Countv, New
York, 541 FJd 464,471 (2d Cir. 2008); see also McCarthy, 482 F.3d at 202 (accord).
Rule 56( c)(!) of the Federal Rules of Civil Procedure provides, in relevant part, that "[a]
party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A)
citing to particular parts of materials in the record * * *; or (B) showing that the materials cited
do not establish the absence or presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact." Rule 56( e) provides, in relevant part, that "[i]f
a party fails to properly support an assertion of fact or fails to properly address another party's
assertion of fact as required by Rule 56( c), the court may:
* * * (2) consider the fact undisputed
for purposes of the motion; [or] (3) grant summary judgment if the motion and supporting
materials- including the facts considered undisputed- show that the movant is entitled to it; * *
*." Fed. R. Civ. P. 56( e). "Rule 56(e)* **requires the nonmoving party to go beyond the
pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and
admissions on file [as well as documents, electronically stored information, stipulations and other
materials, see Fed. R. Civ. P. 56(c)(l)(A)),' designate 'specific facts showing that there is a
genuine issue for trial." Celotex Com., 477 U.S. at 324, 106 S. Ct. 2548; see also Holcomb v.
Iona College, 521 F.3d 130, 137 (2d Cir. 2008) (accord). "In ruling on a motion for summary
judgment, the district court may rely on any material that would be admissible or usable at trial."
Major League Baseball Properties. Inc. v. Salvino. Inc., 542 F.3d 290, 309 (2d Cir. 2008)
(internal quotations and citations omitted); see also Lyons, 681 F.3d at 57 (accord). "A party
opposing summary judgment does not show the existence of a genuine issue of fact to be tried
merely by making assertions that are conclusory * * * or based on speculation." Major League
Baseball, 542 F.3d at 310; Kate! Ltd. Liability Co. v. AT&T Com., 607 F.3d 60, 67 (2d Cir.
2010) (accord); see also Brown, 654 F.3d at 358 (holding that the nonmoving party "may not rely
on conclusory allegations or unsubstantiated speculation" to defeat summary judgment).
Timeliness oflnternational Tool's Motion
Plaintiffs contend that International Tool's motion should be denied because it failed to
comply with Rule 4(G) of my individual rules, requiring all motions for summary judgment to be
noticed no later than twenty (20) days after the close of discovery.
Since discovery was closed as of July 24,2012, International Tool's service of its motion
for summary judgment on October 8, 2012 did not comply with Rule 4(G) of my individual rules.
Nonetheless, "[a] district court has broad discretion to determine whether to overlook a party's
failure to comply with local court rules." Holtz v. Rockefeller & Co. Inc., 258 F.3d 62, 73 (2d
Cir. 2001). Since, inter alia, Pentair's motion for summary judgment raising essentially the same
issue was timely filed in accordance with my individual rules and International Tool's motion
was filed more than one (I) month prior to the scheduled trial date and raises only one (I) issue,
plaintiffs have not been prejudiced by International Tool's noncompliance with my individual
rules. Plaintiffs' contention that they have been "irreparably financially and temporally
prejudiced" by the delay since they already commenced preparing for trial when International
Tool filed its motion is without merit since, inter alia, the pendency of any dispositive motion
does not affect any trial scheduled before me. In other words, plaintiffs still had to prepare for
trial whether or not there was a motion for summary judgment pending before me. Moreover,
during the July 24,2012 final pretrial conference, counsel for International Tool advised that they
intended to file a motion for summary judgment on behalf of International Tool, so its belated
motion should not have come as a surprise to plaintiffs.
Given the lack of prejudice, plaintiffs' own dilatory conduct in prosecuting this action
and my preference for resolving matters on the merits, I will exercise my discretion to overlook
International Tool's noncompliance with Rule 4(0) of my individual rules under the
circumstances of this case. 3
Defendants' Purported Discovery Failures
Plaintiffs contend that Pentair and International Tool should be precluded from relying
upon Crider's and Barnett's affidavits, respectively, based upon their purported refusal to
produce those witnesses for a deposition and failure to serve responses to plaintiffs' discovery
demands. In addition, plaintiffs contend that International Tool should be precluded from relying
upon Spinaris's deposition testimony since it agreed to adjourn Spinaris's deposition to afford
him an opportunity to review and produce any relevant documents.
"[P]reclusion of evidence is a harsh remedy
* * * [that] should be imposed only in rare
situations." Ritchie Risk-Linked Strategies Trading (Ireland), Ltd. v. Coventry First LL!:', 280
F.R.D. 147, 156 (S.D.N.Y. 2012) (quotations and citations omitted); see also Pall Corp. v. 3M
Purification Inc., 279 F.R.D. 209,213 (E.D.N.Y. 2011) (holding that preclusion is an "extreme
sanction" that should not be granted lightly).
Defendants are not to blame for plaintiffs' failure to pursue this action diligently.
Plaintiffs commenced this action on August 12, 2011 and, thus, had ample time, i.e., more than
eleven (II) months, within which to conduct discovery.
Burlington Coat Factory
Warehouse Corp. v. Esprit de Corp., 769 F.2d 919,927 (2d Cir. 1985). Counsel for the parties
In light of this determination, International Tool's motion for an extension oftimenunc
pro tunc to file its motion for summary judgment (Doc. No. 62), filed on November 7, 2012, is
denied as moot.
appeared for an initial conference before me on October 27, 201 I, yet plaintiffs waited until June
27,2012, eight (8) months thereafter, before seeking any discovery from either defendant in this
action. With less than one (I) month before the expiration of the extended discovery deadline,
plaintiffs first sought International Tool's belated Rule 26 disclosure; served subpoenas to take
the non-party depositions of Lidonnici and Spinaris; and served document requests and notices to
take depositions upon defendants.
Plaintiffs did not serve Pentair with a notice to take Crider's deposition or Request for
Production of Documents until July 6, 2012, (Durgana Aff., Exs. A and D), less than three (3)
weeks before the expiration of the extended discovery deadline. The notice of deposition
scheduled Crider's deposition for July 19,2012, four (4) days before the expiration of the
extended discovery deadline, at plaintiffs' counsel's offices in New York. In an e-mail sent to
counsel for plaintiffs on July 13, 2012, counsel for Pentair objected to plaintiffs' notice of
deposition on the grounds, inter alia: (I) that Crider's deposition should be held in Minnesota,
where Pentair has its principal place of business, not New York; (2) that Crider's deposition was
unnecessary because the information sought from Crider, i.e., the organizational structure
involving the relationships between and among Pentair and its present and former subsidiaries,
was readily available on the internet, was more efficiently obtainable via interrogatories and was
of questionable relevance; and (3) that Crider's deposition should not be conducted prior to the
depositions of plaintiffs and their expert because it had noticed those depositions first.
Initially, Pentair's latter two (2) objections to plaintiffs' notice of deposition do not
provide a basis for Crider's failure to appear on the scheduled date. "Although not unlimited,
relevance, for purposes of discovery, is an extremely broad concept," Trilegiant Com. v. Site!
275 F.R.D. 428,431 (S.D.N.Y. 2011); see also Gucci America. Inc. v. Guess?. Inc., 790
F.Supp.2d 136, 140 (S.D.N.Y. 2011) ("Discoverability is determined by the broad standard of
relevance,*** [but] [t]he broad standard of relevance,*** is not a license for unrestricted
discovery."); Ragusa v. Malverne Union Free School District, 549 F. Supp. 2d 288, 293
(E.D.N.Y. 2008) ("Relevance under Rule 26 has been construed broadly to encompass any matter
that bears on, or that reasonably could lead to other matter that could bear on any issue that is or
may be in the case." (quotations and citation omitted)), and the deposition of Crider falls "well
within this generous standard of relevance."
Ferguson v. Lion Holding. Inc., Nos. 02
Civ. 4258, 02 Civ. 4261, 2005 WL 1216300, at* 2 (S.D.N.Y. May 23, 2005). Moreover,
"[u]nder the federal rules, a discovery priority is not established based upon which party noticed
a deposition first, but rather, Rule 26(d) authorizes the court to order the sequence of discovery
upon motion." Occidental Chemical Com. v. OHM Remediation Services, 168 F.R.D. 13, 14
(W.D.N.Y. 1996); see also Convermat Com. v. St. Paul Fire & Marine Ins. Co., No. CV 061045, 2007 WL 2743679, at* 1 (E.D.N.Y. Sept. 18, 2007) ("[U]nder the Federal Rules there is
no rule of discovery priority.")
However, although "the party noticing the deposition usually has the right to choose the
location* * *[,] [w]here a corporation is involved as a party to the litigation, there is a general
presumption in favor of conducting depositions of a corporation in its principal place of
business." Buzzeo v. Board of Education. Hempstead, 178 F.R.D. 390, 392 (E.D.N.Y. 1998)
(quotations and citations omitted); see also Estate of Gerasimenko v. Cape Wind Trading Co.,
272 F.R.D. 385, 390 (S.D.N.Y. 2011) ("The usual rule in federal litigation, is that in the absence
of special circumstances, a party seeking discovery must go where the desired witnesses are
normally located. • • • This rule applies with equal force to 30(b)(6) witnesses." (quotations,
alterations and citations omitted)); Dwyer v. Deutsche Lufthansa. AG, No. CV-04-3184, 2007
WL 526606, at • 2 (E.D.N.Y. Feb. 13, 2007) ("[T]here is a presumption that depositions of
corporate officers will take place at the corporate officer's residence or the corporation's
principal place ofbusiness.")4 Upon a corporate defendant's objection to a deposition scheduled
at a location other than in its principal place of business, "the plaintiff has the affirmative burden
of demonstrating 'peculiar' circumstances which compel the Court to suspend the general
[presumption] and to order that depositions be held in the other location." Ambac Assurance
Com. v. Adelanto Public Utility Authority, No. 09 Civ. 5087, 2012 WL 1589597, at • 6
(S.D.N.Y. May 7, 2012). The general presumption can be rebutted by a showing that "factors of
cost, convenience, and litigation efficiency, militate in favor of an alternate location." Ambac
Assurance, 2012 WL 1589597, at • 6 (quotations and citation omitted); see also Buzzeo, 178
F.R.D. at 392; Dwyer, 2007 WL 526606, at* 2.
As to cost, the choice is between having counsel for three (3) parties travel to Minnesota,
or having one (I) witness travel to New York and, thus, this factor weighs slightly in favor of
conducting Crider's deposition in New York. With respect to convenience, all counsel would be
inconvenienced if they had to travel to Minnesota, but the inconvenience is part and parcel of the
duties for which they were retained. On the other hand, Crider, who is not himself a named
Although the general presumption "is not applicable in a suit in which plaintiff had
little choice of forum," Ambac Assurance Com. v. Adelanto Public Utility Authority, No. 09 Civ.
5087,2012 WL 1589597, at* 6 (S.D.N.Y. May 7, 2012), this is not such a suit.
defendant, would be inconvenienced by having to travel to New York. Moreover, since plaintiffs
chose the action's forum, it is they who should bear the reasonable burdens of litigation. Thus,
the convenience factor weighs slightly in favor of conducting Crider's deposition in Minnesota.
The third factor is neutral, since any discovery disputes arising during Crider's deposition can be
resolved by the Court via a telephone conference and thus, the situs of the deposition has no
affect on litigation efficiency. Since there are no special circumstances which compel suspension
of the general presumption in favor of conducting a corporate defendant's deposition in its
principal place of business, Pentair's first objection to plaintiffs' notice of deposition was
Contrary to plaintiffs' contention, Pentair did not refuse to proceed with the deposition of
Crider at all. Rather, counsel for Pentair indicated that "[i]f [Crider] is to be deposed at all * * *,
it should be in Minnesota." (Pentair Reply, Ex. A). Plaintiffs took no further steps to pursue
Crider's deposition upon Pentair's objection. Although plaintiffs indicate that they sought leave
to file a motion to compel Crider's deposition from Magistrate Judge Boyle, the application they
submit in support of that assertion is dated July 17, 2012, prior to the scheduled deposition date,
and the application makes no reference at all to Pentair's objection to the location of Crider's
deposition. (Durgana Aff., Ex. B). Indeed, in that application, plaintiffs' counsel indicated only
that "it is unknown if Allen Crider will be produced on th[e] [scheduled] date." (Id.) Moreover,
on July 18,2012, Magistrate Judge Boyle denied plaintiffs' application without prejudice to
renewing the application before me. Plaintiffs never renewed their application or otherwise
moved to compel Crider's deposition at any time after the date set in their notice of deposition.
Upon receipt oflnternational Tool's Rule 26 disclosure on July I 0, 2012, with less than
two (2) weeks remaining within which to complete discovery, plaintiffs still waited ten (10) days,
i.e., until July 20, 2012, before serving International Tool with their Request for Production of
Documents and a notice to take the deposition of Barnett. With respect to the notice to take
Barnett's deposition, plaintiffs served the notice only three (3) days prior to the extended
discovery deadline. Since Rule 30(b)(l) of the Federal Rules of Civil Procedure requires "[a]
party who wants to depose a person by oral questions [to] give reasonable written notice to every
other party," service of the notice only three (3) days prior to the extended discovery deadline
could not have provided International Tool with reasonable notice to take Barnett's deposition
prior to the close of discovery. See,~ Eckert v. United Auto. Workers, No. 04-cv-0538S, 2010
WL 2160346, at • 2 (W.D.N.Y. May 27, 2010) (finding that a notice to take a deposition served
only five (5) days prior to the date set for the deposition did not provide reasonable notice); U.S.
v. Philip Morris Inc., 312 F. Supp. 2d 27, 36-7 (D.D.C. 2004) (finding that notice of three (3)
business days does not constitute reasonable notice). Accordingly, plaintiffs scheduled the
deposition of Barnett for August 16, 2012, more than three (3) weeks after the close of discovery
in this case. Since discovery was closed prior to the date noticed for Barnett's deposition,
Barnett was never served with a proper notice to take his deposition and, thus, was under no
obligation to appear for the deposition. See Fed. R. Civ. P. 37(d)(l)(A) ('The court • • • may,
on motion, order sanctions if: (i) a party * * * fails, after being served with proper notice, to
appear for that person's deposition***." (emphasis
Pegoraro v. Marrero, 281
F.R.D. 122, 128 (S.D.N.Y. 2012) ("Absent evidence that the witnesses* **were given
reasonable written notices
* * * as required by Rule 30(b)(I), * * *, the Court has no authority to
compel witnesses, including the parties, to attend any depositions which were [not] noticed • *
To the extent plaintiffs contend that they could not have scheduled Barnett's deposition
until after they received International Tool's Rule 26 disclosure identifying him as a witness, they
provide no explanation for why they did not seek a deposition oflntemational Tool under Rule
30(b)(6) of the Federal Rules of Civil Procedure, which allows a party to name a corporation as
the deponent and "describe with reasonable particularity the matters for examination" in its
notice for deposition, as a result of which the corporation would then be required to produce the
appropriate person. Plaintiffs could have served such a notice of deposition under Rule 30(b)(6)
at any time during the approximate eleven (II) months that this action was pending prior to the
close of discovery because Rule 26(d)(2) of the Federal Rules of Civil Procedure provides, in
relevant part, that "methods of discovery may be used in any sequence." See, ~Century Jets
Aviation LLC v. Alchemist Jet Air LLC, Nos. 08 Civ. 9892, 09 Civ. 7659,2011 WL 724734, at
* 2 (S.D.N.Y. Feb. 8, 2011) ("It is unclear why [the defendant] believed it needed to wait until
the completion of document discovery to depose witnesses. Fed. R. Civ. P. 26(d)(2) provides
that, unless the court orders otherwise, 'methods of discovery may be used in any sequence.'
* While in a majority of cases, interrogatory and document discovery are completed prior to
depositions, this is certainly not a hard and fast rule." (quotations, alterations and citations
omitted)); Converrnat Com., 2007 WL 2743679, at* 2 (accord). Thus, plaintiffs have failed to
identify any act of International Tool that prevented them from deposing Barnett prior to the
expiration of the extended discovery deadline.
Defendants' Other Purported Discovery Failures
Rule 34(b)(2) of the Federal Rules of Civil Procedure provides, in relevant part, that a
party to whom a document request is directed "must respond in writing within 30 days after
being served." Although Rule 34(b)(2) further provides that "[a] shorter or longer time may be
stipulated to under Rule 29 or be ordered by the court[,]" plaintiffs have not demonstrated that
the parties ever stipulated to, or that the court ever ordered that defendants respond to their
Requests for Production of Documents, served less then thirty (30) days prior to the expiration of
the extended discovery deadline, either: (a) prior to the expiration of the extended discovery
deadline, i.e., within a shorter time period than provided by Rule 34(b)(2), or (b) after the close
of discovery.' Although plaintiffs indicate that they served a good faith letter upon Pentair on
July 20, 2012, only fourteen (14) days after the document request had been served upon it,
Pentair still had more than two (2) weeks within which to respond to the request under Rule
34(b )(2) at the time the purported good faith letter was served.
Plaintiffs' contention that they could not have served their Request for Production of
Documents upon Pentair until after they had received its Rule 26 disclosure is disingenuous since
plaintiffs received Pentair's Rule 26 disclosure on June 19,2012, more than thirty (30) days prior
to the expiration of the extended discovery deadline, yet waited seventeen ( 17) days before
serving Pentair with their Request for Production of Documents. (See Durgana Aff., Ex. B).
Moreover, prior to the expiration of the extended discovery deadline, plaintiffs never
moved: (a) pursuant to Rule 37(a) of the Federal Rules of Civil Procedure and Local Civil Rule
In any event, in its Rule 26 disclosure, International Tool indicates, inter alia, that it "is
not in possession of any documents relating to the subject action or alleged subject device/saw
and denies selling this subject saw." (Spitz Aff., Ex. F).
37.3 to compel Crider's or Barnett's depositions or defendants' responses to their Requests for
Production ofDocuments, 6 or (b) pursuant to Rule 37(d) of the Federal Rules of Civil Procedure
for sanctions, including the sanction of preclusion, based upon Crider's and Barnett's purported
failure to appear for a deposition or defendants' failure to respond to their Requests for
Production of Documents. In fact, plaintiffs have not identified any court order requiring
Crider's or Barnett's depositions or defendants' compliance with discovery requests due after
expiration of the extended discovery deadline. "Although the order compelling discovery need
not issue pursuant to Rule 37(a), there must be a valid court order in force before sanctions may
be imposed pursuant to Rule 37(b)(2)." Daval Steel Products. a Division ofFrancosteel Com. v.
MN Fakredine, 951 F.2d 1357, 1364 (2d Cir. 1991); see also Lopez v. Catholic Charities of
Archdiocese of New York, No. 00 CV 1247,2000 WL 1725029, at* 2 (S.D.N.Y. Nov. 20, 2000)
(accord). Accordingly, defendants are not precluded from supporting their motions for summary
judgment with Crider's and Barnett's affidavits.
In addition, International Tool is not precluded from supporting its motion for summary
judgment with Spinaris's deposition testimony. On April23, 2012, Spinaris was deposed
pursuant to a subpoena served upon him by counsel for Pentair. (See Spitz Aff., Ex. E). When
Although plaintiffs indicate that they "requested leave to file a motion to compel the
responses [to their Request for Production of Documents] from [International Tool]," [Durgana
Aff., ~ 42), and cite to Exhibit B of the Durgana Affidavit in support of that contention, Exhibit B
is International Tool's Rule 26 Disclosure, not a motion to compel. In fact, none of the exhibits
submitted by plaintiffs support their assertion that they ever sought leave to file a motion to
compel International Tool to respond to their Request for Production of Documents.
Significantly, plaintiffs application to Magistrate Judge Boyle dated July 17, 2012 indicates, in
relevant part, that "[a]ttorneys for plaintiffs are in the process of serving Defendant International
Tools [sic] with a Request for Production of Documents and Things * * *." (Durgana Aff., Ex.
Spinaris was unable to testify about certain matters, e.g., All Island's purchase of the subject
Delta Unisaw, counsel for Pentair indicated, inter alia, that he was willing to adjourn the
deposition for a couple of weeks to afford Spinaris an opportunity to comply with the subpoena,
i.e., to review and produce all relevant documents. (Spitz Aff., Ex. Eat 67-73). Although
counsel for Pentair arranged for Spinaris's deposition to continue on May 8, 2012, (Spitz Aff.,
Ex. Eat 73-4), counsel for International Tool nonetheless asked Spinaris some questions prior to
the deposition being adjourned. (Spitz Aff., Ex. Eat 74-75, 77). Plaintiffs' counsel, on the other
hand, merely reserved his right to ask questions of Spinaris at the continued deposition. (Spitz
Aff., Ex. Eat 75-6).
For reasons unexplained by any party, the continued deposition ofSpinaris pursuant to
Pentair's subpoena did not take place, either on May 8, 2012 or at any other time prior to the
close of discovery. On June 29, 2012, more than two (2) months after Spinaris's initial
deposition, and less than one(!) month before the expiration of the extended discovery deadline,
counsel for plaintiffs served their own subpoena to take the depositions of Spinaris and Lidonnici
on July 13, 2012. (See Durgana Aff., Ex. E). In their application to Magistrate Judge Boyle
dated July 17, 2012, (i!;l), plaintiffs' counsel indicated, in relevant part, that the depositions of
Spinaris and Lidonnici had been rescheduled for July 20,2012, only three (3) days prior to the
extended discovery deadline, "because of availability," although they conspicuously fail to
indicate to whose availability they were referring. In addition, plaintiffs' counsel indicated, inter
alia, that they anticipated having to proceed with the depositions in the absence ofPentair's
counsel. There is otherwise no indication in the record, inter alia, as to why Spinaris and
Lidonnici were not deposed prior to the extended discovery deadline, nor why plaintiffs' counsel
did not seek relief from this Court when the depositions were not conducted as scheduled on July
Moreover, the record is devoid of any indication that International Tool was in any
way responsible for the failure to depose Spinaris and Lidonnici prior to the close of discovery.
Accordingly, International Tool is not precluded from using Spinaris's deposition testimony in
support of its motion for summary judgment.
Sufficiency of Affidavits
Plaintiffs contend that Crider's affidavit should be stricken as insufficient because, inter
alia: (l) it fails to establish that Crider has personal knowledge ofPentair's manufacturing and
operations; and (2) fails to recite all material information, i.e., the functional relationship
between Pentair and a subsidiary and the nature of a holding company. Plaintiffs contend that
Barnett's affidavit should be stricken as insufficient because, inter alia: (1) it fails to indicate that
Barnett has personal knowledge regarding the types of machines that International Tool
manufactured in 1997 and 1999; (2) it fails to recite material information, i.e., the functional
relationship between defendants and whether International Tool distributed the Delta Unisaw at
issue; and (3) it is a "self-serving statement comprised oflegal conclusions devoid of any factual
basis," (Durgana Aff.,
Rule 56(c)(4) of the Federal Rules of Civil Procedure provides that "[a]n affidavit or
declaration used to support or oppose a motion [for summary judgment] must be made on
personal knowledge, set out facts that would be admissible in evidence, and show that the affiant
or declarant is competent to testify on the matters stated." See Patterson v. County of Oneida.
New York, 375 F.3d 206,219 (2d Cir. 2004) (quoting former Rule 56( e) of the Federal Rules of
"' ' ..
Civil Procedure). "A witness's conclusions based on personal observations over time may
constitute personal knowledge," New York ex rei. Spitzer v. Saint Francis Hospital, 94
F.Supp.2d 423, 425 (S.D.N.Y. 2000), and a witness "may testify as to the contents of records she
reviewed in her official capacity." Searles v. First Fortis Life Ins. Co., 98 F. Supp. 2d 456, 461
(S.D.N.Y. 2000); see also Zakre v. Norddeutsche Landesbank Girozentrale, 396 F. Supp. 2d 483,
504 (S.D.N.Y. 2005). "[T)he test of admissibility*** is whether a reasonable trier of fact could
believe the witness had personal knowledge of the facts to which he is testifying." New York ex
rei. Spitzer, 94 F. Supp. 2d at 427; see also Zakre, 396 F. Supp. 2d at 504.
"Hearsay testimony that would not be admissible if testified to at the trial may not
properly be set forth in the Rule 56( e) affidavit." Major League Baseball, 542 F.3d at 310
(quotations, alterations and citations omitted); see also Patterson, 375 F .3d at 219 ("Rule 56( e)'s
requirement that the affiant have personal knowledge and be competent to testify to the matters
asserted in the affidavit* * *means that an affiant's hearsay assertion that would not be
admissible at trial if testified to by the affiant is insufficient* * * .")
In his affidavit, Barnett states, in relevant part, that he has been "the Vice-President of
[International Tool) * * * since 1990," (Barnett Aff.,
2), and that he is "competent to be a
witness as to the facts and matters stated in th[e) Affidavit," (Barnett Aff.,
with the exception of paragraphs seven (7) and ten (10) 7 , which contain inadmissible hearsay to
In paragraph seven (7), Barnett states that "[his) attorneys have advised [him] that the
plaintiff claims that he injured himself when using a Delta Unisaw while he was an employee of
an entity known [as], All Island Mica Designs, Inc. d/b/a All Island Solid Surface. [He] was also
informed that All Island Mica Designs, Inc. d/b/a All Island Solid Surface is owned by a Mr.
Andrew Spinaris and Mr. Steven Lidonnichi." (Barnett Aff., ~ 7). In paragraph ten (10), Barnett
states that "[he] ha[ s) also been informed that the plaintiffs have failed to exchange any evidence
that shows that International Tool has ever had anything to do with the design, manufacturing or
the extent offered for the truth of the matters asserted therein, Barnett's affidavit satisfies the
requirements of Rule 56(c)(4). See, u
SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133,
138-39 (2d Cir. 2009) (finding that a witness's affidavit stating that he was a former vice
president of the defendants' business and was "fully familiar with the facts and circumstances set
forth" therein satisfied the requirements of former Rule 56(e)); Bank of America. Nat. Ass'n v.
Kamico. Inc., No. II Civ. 5255,2012 WL 1449185, at* 56 (S.D.N.Y. Apr. 24, 2012) (holding
that there was no question as to the competence of a declaration by the vice president of the
plaintiff-company because as a vice president, the witness was both qualified, and duty-bound, to
review the relevant business records of the plaintiff before making his affidavit); Merrill Lynch
Business Financial Services Inc. v. Heritage Packaging Cor.p., No. CV-06-3951, 2007 WL
2815741, at* 4 (E.D.N.Y. Sept. 25, 2007) (finding that the defendant's unsupported allegation
that the declaration was not based upon the witness's personal knowledge was insufficient in
light of the witness's statement that she was making the declaration on personal knowledge and
that the witness may offer evidence in her declaration based upon personal knowledge obtained
from her review of the records of the company for which she was a vice president). "An affiant
is under no obligation to specify the source of his personal knowledge." Bank of America, 2012
sale and/or resale of the subject saw." (Barnett Aff., '1[10). To the extent those assertions are
offered for the truth of the matters stated, they constitute inadmissible hearsay and, thus, have not
been considered on this motion. To the contrary, although paragraph eight (8) of the affidavit
indicates that Barnett was initially informed that the subject Delta Unisaw was a model 36-920,
but then was informed that the model number was actually 34-806, (Barnett Aff., '1[8), those
assertions are not offered for the truth of the matters stated therein, i.e., the correct model number
of the Delta Unisaw. Indeed, Barnett states that during his personal review oflntemational
Tool's past sales records, he searched for sales of the subject saw under either model number.
(Barnett Aff., '1[9). Accordingly, paragraph eight (8) does not constitute hearsay and is properly
considered on this motion.
WL 1449185, at* 6.
Likewise, since Crider states that he is an associate general counsel-litigation for Pentair;
that he is "familiar with the corporate organizational structure involving the relationships
between and among Pentair, Inc., its present and former direct and indirect subsidiaries," (Crider
Aff., ~ 2); and that he is "competent to be a witness as to the facts and matters stated in [the]
Affidavit," (Crider Aff., ~ 1), his affidavit satisfies Rule 56(c)(4). See,~ SCR Joint Venture,
559 F.3d at 138-39; Major League Baseball, 542 F.3d at 312-13 (finding the declaration of a
senior vice president and general counsel to be sufficient); Stevens v. Water District One of
Johnson County, 561 F. Supp. 2d 1224, 1233 (D. Kan. 2008) (holding that personal knowledge
can be inferred based upon the witness's position as general counsel for the company); Adams v.
Unum Life Ins. Co. of Americ
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