Lopez v. Delta Power Equipment Corporation et al
ORDER GRANTING 11 Motion for Summary Judgment; DENYING AS MOOT 13 Motion for Protective Order. Any and all pending Motions are DENIED as MOOT. Signed by Judge David C Guaderrama. (mc4)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
DELTA POWER EQUIPMENT CORP.,
and DELTA MACHINE CO., INC.,
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Presently before the Court is Defendant DeltaPower Equipment Corporation's
("Defendant") Motion for Summary Judgment ("Motion") (ECF No. 11), filed on April 17,
2015. As of the date of this Order, Plaintiff Ismael Lopez ("Plaintiff) has not filed a response to
Defendant's Motion.1 After careful consideration of the Motion and the applicable law, the
Court enters the following order.
Plaintiff filed an Original Petition in the 171st District Court in El Paso County, Texas, on
July 11, 2014. See Notice ofRemoval, Ex. 4 at 5.2 In it, Plaintiff alleges that on orabout August
23,2012, Plaintiff severed his left middle and index fingers while attempting to saw wood with a
table power saw (the "subject power saw") manufactured and put in the stream of commerce by
1Plaintiffhad until May4, 2015, to file a response to Defendant's Motion. See Local Court Rule
CV-7(e)(2); Fed. R. Civ. P. 6(d). Accordingly, the Court considers Defendant's Motion as unopposed.
See Local Court Rule CV-7(e)(2).
2The Court citesto the ECF pagination throughout this Order rather than the pagination in
Defendants.3 See id, Ex. 4 at 6. Plaintiff pleads two causes of action under Texas lawarising
from this incident: strict products liability and negligence. See id, Ex. 4 at 6-7. On September
26,2014, Defendant removed Plaintiffsaction to this Court pursuant to 28 U.S.C. Sections 1332
and 1446.4 Defendant filed the instant Motion on April 17, 2015.
Summary judgment is appropriate when "the movant shows that there is no genuine
dispute as to any material fact and the movant isentitled to judgment as a matter of law." Fed.
R. Civ. P. 56(a). "A genuine dispute of fact exists when evidence is sufficient for a reasonable
jury to return a verdict for the non-moving party, and a fact is material if it might affect the
outcomeof the suit." Willis v. Cleco Corp., 749 F.3d 314, 317 (5th Cir. 2014) (citation and
internal quotation marks omitted). "A party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis for its motion, and identifying those
portions of the record which it believes demonstrate the absence of a genuine issue of material
fact." EEOC v. LHC Group, Inc., 113 F.3d 688, 694 (5th Cir. 2014) (quoting Celotex Corp. v.
Catrett, All U.S. 317, 323 (1986)). If the moving party meets this initial burden, "the onus shifts
to 'the nonmoving party to go beyond the pleadings and by her own affidavits, or by the
depositions, answers to interrogatories, and admissions on file, designate specific facts showing
that there is a genuine issue for trial.'" Id. (quoting Celotex Corp., All U.S. at 324). The Court
3Plaintiffnames Defendant and Delta Machine Co., Inc. ("Delta Machine") as defendants in this
lawsuit. Plaintiff, however, never effected service on Delta Machine, which appears to be a non-existent
entity. See Notice of Removal 2. The Court therefore dismisses Plaintiffs claims against Delta Machine
without prejudice for failure to effect service. See Williams v. Countrywide Home Loans, Inc., 504 F.
Supp. 2d 176, 196 n.13 (S.D. Tex. 2007) (citing Nagle v. Lee, 807 F.2d 435, 438 (5th Cir. 1987)), ajf'd,
269 F. App'x 523 (5th Cir. 2008) (per curiam).
4Plaintiff did notchallenge the timeliness of Defendant's removal within the time provided in 28
U.S.C. § 1447(c).
must draw all reasonable inferences in favor of the nonmoving party. Id. (quoting Turner v.
Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007)).
Defendant moves for summary judgment because it "did not design, manufacture, market
or sell the subject [power saw]." Mot. 1. Indeed, Defendant avers that it did not come into
existence until December 2010, more than nine years after the manufacturing date of the subject
power saw. See id. Because this is a diversity action, the Court must look to Texas law
governing Plaintiffs causes of action. See Day v. Wells Fargo Bank Nat 7Ass 'n, 768 F.3d 435,
436 (5th Cir. 2014) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)). To prove
Defendant's liability under Texas law, Plaintiffmust show that Defendant's actions or omissions
caused his injuries.5 Here, there is no genuine issue ofmaterial fact regarding this element of
Plaintiffs causes of action, and Defendant is entitled to judgment as a matter of law.
A, Plaintiffs Causes ofAction
"In Texas, a plaintiff can predicate a products liability action on one or more of at least
three theories of recovery: (1) strict liability under Restatement (Second) of Torts § 402A, (2)
breachof warranty under the [Uniform Commercial Code], and (3) negligence." Syrie v. Knoll
Intern., 748 F.2d 304, 306 (5th Cir. 1984) (quoting Duncan v. Cessna Aircraft Co., 665 S.W.2d
414,423 (Tex. 1984)); accord Romo v. Ford Motor Co., 798 F. Supp. 2d 798, 805 (S.D. Tex.
2011). Plaintiff has opted to sue under the first and third of these theories: strict liability and
negligence. See Notice of Removal, Ex. 4 at 6-7. To prove his allegations under a strict liability
5Technically, strict liability requires a showing of producing cause and negligence requires a
showing of proximate cause, but the distinction between the two is not significant here. See Flock v.
Scripto-Tokai Corp., 319 F.3d 231, 238 (5th Cir. 2003) (noting that, in Texas, a showing of producing
cause is necessary for recovery in a products liability case); IHS Cedars Treatment Ctr. ofDesoto, Tex.,
Inc. v. Mason, 143 S.W.3d 794, 798-99 (Tex. 2003) (noting that establishing a negligence cause of action
includes showing damages proximately caused by the breach of duty).
theory, Plaintiff must show that: (1) the subject power saw was defective; (2) the defect rendered
the subject power saw unreasonably dangerous; (3) the subject power saw reached Plaintiff, as
the ultimate consumer, without substantial change in its condition from the time of the original
sale; and (4) thesubject power sawwas the producing cause of Plaintiffs injuries. See
McLennan v. Am. Eurocopter Corp., Inc., 245 F.3d 403, 427 (5th Cir. 2001) (citing Syrie, 748
F.2d at 306); Davis v. Conveyor-Matic Inc., 139 S.W.3d 423, 429 (Tex. App.—Fort Worth 2004,
no pet.) (citing Restatement (Second) of Torts § 402A (1965); Firestone Steel Prods. Co. v.
Barajas, 927 S.W.2d 608, 613 (Tex. 1996)). "To incur liability [under this theory], a defendant
does not haveto actually sell the product; introducing the product into channels of commerce is
enough." FirestoneSteel Prods. Co., 927 S.W.2d at 613.
"While strict liability focuses on the condition of the product, 'negligence looks at the
acts of the manufacturer and determines if it exercised ordinary care in design and production.'"
Am. Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420,437 (Tex. 1997) (quoting Caterpillar, Inc. v.
Shears, 911 S.W.2d 379, 384 (Tex. 1995)); accord Romo, 798 F. Supp. 2d at 807. However, a
necessary element of both causes of action—one Defendant argues Plaintiff cannot prove—is
that Defendant's acts or omissions caused Plaintiffs injuries. See Romo, 798 F. Supp. 2d at 807
(citing Brown v. Edwards Transfer Co., Inc., 16A S.W.2d 220, 223 (Tex. 1988)); Kallassy v.
Cirrus Design Corp., No. CIV. A. 3:04-CV-0727N, 2006 WL 1489248, at *5 (N.D. Tex. May
30,2006) ("Under either negligence or strict liability theories, plaintiffs are required to prove
causation." (citing Horakv. Pullman, Inc., 16A F.2d 1092, 1095 (5th Cir. 1985))), affd, 265 F.
App'x 165 (5th Cir. 2008).
B. Undisputed Facts6
Defendant did not design, manufacture, market, or sell the subject power saw. Mot., Ex.
1U2, Ex. 2 at 5. Defendant was incorporated on December 16, 2010 in the state ofSouth
Carolina. Id, Ex. 1K8, Ex. 2 at4-9. The subject power saw, however, was manufactured in
May 2001 by Delta International Machinery Corp. ("Delta International"). Id, Ex. 11fl| 3-4, Ex.
2 at 4-5. DeltaInternational is a Minnesota corporation and a subsidiary of Black & Decker,
Inc. Id, Ex. 1H5, Ex. 2 at 5. When the subject power saw was manufactured, Delta
International was a wholly-owned subsidiary of Pentair Tool & Equipment Group in Jackson,
Tennessee. Id., Ex. 1K7, Ex. 2 at 5. Defendant has never acquired any other entity and it did
not acquire Delta International. Id, Ex. 1% Ex. 2 at 6. Similarly, Defendant has never
acquired orassumed liability related to products liability issues and/or personal injury claims for
products soldpriorto Defendant's incorporation. Id., Ex. 1112, Ex. 2 at 6.
C. The Parties' Respective Burdens
The Court finds that Defendant has met its burden, on a motion for summary judgment,
of showing the absence of a genuine issue of material fact regarding a necessary element of
Plaintiffs causes of action; namely, whetherDefendant caused, proximately or otherwise,
Plaintiffs injuries. See LHC Group, Inc., 113 F.3d at 694 (stating that a party seeking summary
judgment bears the initial burden of demonstrating the absence of a genuine issue of material
fact). Once the moving party meets this initial burden, "the onus shifts to 'the nonmoving party
to ... designate specific facts showing that there is a genuine issue for trial.'" Id. (quoting
Celotex Corp., All U.S. at 324). Plaintiffneverresponded to Defendant's Motion and has thus
6Pursuantto Federal Rule of Civil Procedure 56(e),the Court considers Defendant's proposed
facts undisputed for purposes of the instant Motion. See Fed. R. Civ. P. 56(e)(2).
failed to meet its burden under Rule 56.7 The Court therefore finds that Plaintiff cannot make the
required showing against Defendant to support the causation element in either the negligence or
strict liability causes ofaction. Defendant is thus entitled to judgment as a matter oflaw. See,
e.g., Kallassy, 2006 WL 1489248, at *8 (granting summary judgment in negligence and strict
products liability case where plaintiff could not prove causation); Harris v. Nat 7Passenger R.R.
Corp., 79 F. Supp. 2d 673, 676, 678 (E.D. Tex. 1999) (same), affdsub nom. Harris v. S. Pac.
Tramp. Co., 234 F.3d 707 (5th Cir. 2000) (per curiam).
Accordingly, IT IS HEREBY ORDERED that Defendant DeltaPower Equipment
Corporation's Motion for Summary Judgment (ECF No. 11) is GRANTED.
IT IS ALSO ORDERED that Plaintiff Ismael Lopez's claims against Defendant Delta
Machine Co., Inc., are DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED the Clerk of the Court shall TERMINATE all named
Defendants in the above-captioned case.
IT IS FURTHER ORDERED that any and all pending motions are DENIED as
IT IS LASTLY ORDERED that the Clerk of the Court SHALL CLOSE this case.
So ORDERED and SIGNED this 2f* day of May, 2015.
YD C. GUADERRAMA
UNITED STATES DISTRICT JUDGE
7Notably, Plaintiffjoined in a motion for the entry of a confidentiality and protective order filed
on May 14, 2015, while Defendant's Motion was pending. See Confidentiality and Protective Order 1,
11, ECF No. 13.
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