Ultraflo Corporation v. Pelican Tank Parts, Inc. et al

Filing 187

ORDER Ultraflo's 144 Objections to summary judgment evidence are OVERRULED. (Signed by Judge Melinda Harmon) Parties notified.(htippen, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ULTRAFLO CORPORATION,

§
§
Plaintiff,
§
§
VS.
§
§
PELICAN TANK PARTS, INC.,
§
PELICAN WORLDWIDE INCORPORATED, §
and THOMAS JOSEPH MUELLER,
§
§
Defendants.
§

CIVIL ACTION H-09-0782

OPINION AND ORDER
Pending before the Court in the above referenced cause are
Plaintiff

Ultraflo

Corporation’s

(“Ultraflo’s”)

objections

to

specific summary judgment evidence (#144) that was submitted in
support

of

Defendants

Pelican

Worldwide,

Inc.

(“Worldwide”),

Pelican Tank Parts, Inc., and Thomas Joseph Mueller’s renewed
motion for partial summary judgment (instrument # 138).
Relevant Law
Evidence submitted in support of a motion for summary judgment
must be based on personal knowledge, properly authenticated, and
admissible under Federal Rules of Evidence. Fed. R. Civ. P. 56(e).
Federal Rule of Evidence 901 requires “evidence sufficient to
support a finding that the matter in question is what the proponent
claims it is.”

See Hill v. City of Houston, 235 F.3d 1339 (Table),

(5th Cir. 2000), citing U.S. v. Biggins, 551 F.2d 64 (5th Cir. 1977).

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Moreover, the evidence must be relevant under Federal Rule of
Evidence 401:
Evidence is relevant if:
(a) it has any tendency to make a fact more or less
probable than it would be without the evidence; and
(b) the fact is of consequence in determining the action.
Specifically Ultraflo objects to the evidence as follows.
Exhibit B, Ultraflo’s Inspection Report, has not been properly
authenticated by a fact witness and Defendants lack personal
knowledge that it is what they claim it is.

Exhibit R, an

advertisement, is hearsay under Fed. R. Evid. 801 because the
witness offering it, Defendants’ counsel John K. Buche, lacks
personal knowledge as required by Federal Rule of Evidence 602.
Exhibit

S,

purportedly

a

Worldwide

brochure,

is

inadmissible

because the offering party lacks personal knowledge and because it
contains hearsay.

Exhibit I, the President of Worldwide Garth E.

Belue’s Declaration, is inadmissible hearsay and Mr. Belue has no
personal knowledge about the matters it addresses.
corporate

articles,

should

be

stricken

because

the

Exhibit K,
fact

and

duration of Worldwide’s existence is not relevant, it does not
establish when Worldwide began manufacturing selling gaskets and
tank parts, and Defendants misstate the evidence it presents.
Exhibit Q is also misleading and irrelevant because Defendants
misstate the evidence, it does not indicate that Ultraflo was aware
that the valve at issue came from Worldwide rather than any other
Pelican entity, and an email states about it, “I couldn’t make out
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anything from it.”

Finally Exhibit G, a settlement communication,

is inadmissible under Federal Rule of Evidence 408.
In

response

Defendants

point

out

that

Exhibit

B,

the

inspection report was produced by Ultraflo in this action, bears
Ultraflo’s

Bates

numbers

demonstrating

that

production,

and

supported by Buche’s declaration that it is “a true and correct
copy of an internal report from Ultraflo from August 3, 2007 which
studied a Pelican 190 valve labeled ‘Pelican Worldwide, Inc.’” The
Court notes that Documents produced by a party in discovery are
deemed authentic when offered by the party-opponent.

Snyder v.

Whittaker Corp., 839 F.2d 1085, 1089 (5th Cir. 1988); Orr v. Bank
of America, 285 F.3d 764, 777 n.20 (9th Cir. 2002); Denison v. Swaco
Geolograph Co., 941 F.2d 1416, 1423 (10th Cir. 1991).

The Court

concludes that it is admissible.
Defendants respond to the challenge to Exhibit R, a copy of
the advertisement displayed by Worldwide at the 2006 Cargo Tank
Maintenance Seminar and Exhibit Show in Nashville, Tennessee, that
President Belue’s declaration (Exhibit I), referenced in Buche’s
declaration, supports it and shows his personal knowledge of it.
Moreover, it is not hearsay because it is not offered for the truth
of any matter asserted in the advertisement, but as evidence that
the valve was distributed in 2006.

The declaration of Belue, who

attended the show and witnessed Worldwide’s display of the Series
190 butterfly valve, stated that the advertisement was “handed out

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to attendees of the exhibit show” and that the advertisement
prominently displayed the 190 butterfly valve at the top center and
the name Pelican Worldwide Inc. and its trademarks.

The Court

finds Exhibit R is admissible.
Defendants defend the challenge to Exhibit S, the brochure
relating to Worldwide’s Series 190 and 200 butterfly valves, which
is also referenced in Belue’s declaration.

Belue states that the

brochure was on display at Worldwide’s booth and that Ultraflo’s
General Manager Mike Lurk and Mike Nicolson spent 20-30 minutes at
the booth observing the products and the literature on display and
speaking with Pelican representatives, but without objecting to the
butterfly valve.

Moreover, the brochure was not offered for the

truth of any matter in it, but as tangential evidence of the dates
when it was distributed in 2006.
Rule

of

Evidence

904(b)(1),1

Defendants also invoke Federal
and

point

out

as

indicia

of

authenticity that the brochure is in color and bears the logos of
the companies and in some cases the website URLs from which they
were taken so the documents’ internal patters and appearances
support their authenticity.

Again, the Court finds Defendants’

explanation reasonable and overrules Plaintiff’s objection.

1

Federal Rule of Evidence 901(b)(4) permits the authenticity
requirement to be satisfied by “[t]he appearance, contents,
substance, internal patterns, or other distinctive characteristics
of the item, taken together with all the circumstances.”
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Although Plaintiff argues that Belue’s declaration (Exhibit I)
does not show personal knowledge. Defendants disagree and so does
the Court.

Belue explains his relationship to the parties, where

he was, how he had personal knowledge of the facts stated in the
declaration, and identifies those who represented Plaintiff at the
Worldwide trade show booth in 2006.

The Court agrees and finds

that Belue’s declaration is admissible.
Defendants argue that the corporate articles (Exhibit K, 13812, showing Worldwide’s existence since 2004, available on the
Texas Secretary of State’s website) is relevant and that Ultraflo’s
objection goes to weight rather than admissibility of the exhibit.
Defendants urge that it demonstrates Ultraflo’s lack of diligence
in investigating the proper defendants of the suit.

Given the

“known or should have known” phrase of the statute of limitations,
it also indicates that Worldwide, also at www.pelicanworldwide.com,
was not concealing its identity or whereabouts.

The Court agrees

and also notes that the Texas Secretary of State’s stamp on the
document evidences that it is a publicly recorded document and thus
is self-authenticating under Rule 901(7).

The Court overrules

Ultraflo’s objection to Exhibit K.
Exhibit Q is comprised of emails on March 20, 2007 between
Ultraflo’s Chuck Herrington and Mike Lurk referencing the brochure
(Ex. S) and Ultraflo’s awareness of Worldwide. The Court agrees it
is relevant to the statute of limitations issue and admissible.

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Finally, regarding Exhibit R, communications about settlement
negotiations, Defendants state that it is not offered to prove the
validity or amount of the disputed claim, but to rebut Plaintiff’s
fabrication of discovery abuse because Ultraflo argues that defense
counsel was obstructing the case.

It is offered to show that

counsel acted in good faith to settle the case and not with a
motive to conceal the names of Defendants which Plaintiff already
knew. It is also offered to prevent defense counsel from being the
scapegoat for Plaintiff’s failure to sue the correct party, whom
Ultraflo knew from its internal investigations and from websites
that

published

question.

that

Worldwide

sold

the

butterfly

valves

in

The Court finds that Exhibit R is admissible to defend

against allegations of obstruction by Ultraflo and time bar.
Accordingly, for the reasons stated, the Court
ORDERS that Ultraflo’s objections to summary judgment evidence
(#144) are OVERRULED.
SIGNED at Houston, Texas, this

24th

day of

January , 2013.

___________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE

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