Nissan Fire v. Fritz

• Decision Date: 25 April 2000
• Docket Number: No. 98-16024,98-16024
• Parties: (9th Cir. 2000) NISSAN FIRE & MARINE INSURANCE COMPANY, LTD; HITACHI DATA SYSTEMS CORP.,Plaintiffs-Appellants, v. FRITZ COMPANIES, INC.; TOWER AIR, INC.,Defendants-Appellees
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1099

210 F.3d 1099 (9th Cir. 2000)

NISSAN FIRE & MARINE INSURANCE COMPANY, LTD; HITACHI DATA SYSTEMS CORP.,Plaintiffs-Appellants, v. FRITZ COMPANIES, INC.; TOWER AIR, INC.,Defendants-Appellees.

No. 98-16024

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted June 17, 1999

Filed April 25, 2000

[Copyrighted Material Omitted] COUNSEL: David M. Salentine, San Francisco, California, for the plaintiffs-appellants.

Stephen L. Bucklin, Countryman & McDaniel, Los Angeles, California, for defendant-appellee Fritz Companies, Inc.

Frank A. Silane, Kevin R. Sutherland, and Scott D. Cunningham, Condon & Forsyth, Los Angeles, California, for defendant-appellee Tower Air, Inc.

Appeal from the United States District Court for the Northern District of California; Claudia Wilken, District Judge, Presiding. D.C. No.CV-97-01523-CW

Before: David R. Thompson and William A. Fletcher, Circuit Judges, and Susan Oki Mollway, District Judge,¹

W. FLETCHER, Circuit Judge:

Appellants Hitachi Data Systems Corp. ("Hitachi") and its insurer, Nissan Fire & Marine Insurance Co. Ltd. ("Nissan"), sued appellees Fritz Co., Inc. ("Fritz") and Tower Air, Inc. ("Tower") under the Warsaw Convention for recovery of damages arising out of the total loss of goods carried by Fritz and Tower. The district court granted summary judgment for Fritz and Tower, and Hitachi and Nissan appealed. For the reasons that follow, we reverse as to Fritz and affirm as to Tower.

I

In June 1995, Hitachi contracted with Fritz, a freight forwarder, to ship a 530 kilogram disk drive from Miami to Buenos Aires, Argentina. Pursuant to arrangements made by Fritz, Tower flew the disk drive to Buenos Aires. The parties agree that the disk drive arrived damaged on June 13, 1995, and was thereafter determined to be a total loss. The parties disagree, however, on whether Hitachi provided timely notification of the loss to Fritz and Tower.

The timeliness of notice is controlled by the Warsaw Convention, which governs international shipment by air. See Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, 3014, T.S. No. 876 (1934), note following 49 U.S.C. S 40105. The United States and Argentina are both signatories to the Convention. See United States Department of State, Treaties in Force 315-16 (1995). Article 26 of the Convention provides that no claim for damages against a carrier may be sustained unless a written complaint concerning the damage was "dispatched" by the shipper within seven days of the receipt of the damaged goods.²

Fritz and Tower each moved for summary judgment on the ground that Hitachi failed to comply with the Convention's seven-day notice requirement. Fritz supported its motion with an affidavit by its General Manager of Export Services, Kathy O'Brien, stating that Fritz had not received notice within seven days of Hitachi's receipt of the disk drive. Tower submitted affidavits by its Director of Aircraft Planning, Linda Zink, stating that neither Tower nor a Tower agent had received written notice of damage to the disk drive until March 12, 1997, more than two years after it arrived in Buenos Aires. Hitachi and Nissan responded by producing two affidavits from a Nissan claims adjuster and attaching an inspection certificate and letters purporting to constitute timely notice. The district court declined to consider Hitachi and Nissan's documents as evidence and granted summary judgment for Fritz and Tower.

II

The vocabulary used for discussing summary judgments is somewhat abstract. Because either a plaintiff or a defendant can move for summary judgment, we customarily refer to the moving and nonmoving party rather than to plaintiff and defendant. Further, because either plaintiff or defendant can have the ultimate burden of persuasion at trial, we refer to the party with and without the ultimate burden of persuasion at trial rather than to plaintiff and defendant. Finally, we distinguish among the initial burden of production and two kinds of ultimate burdens of persuasion: The initial burden of production refers to the burden of producing evidence, or showing the absence of evidence, on the motion for summary judgment; the ultimate burden of persuasion can refer either to the burden of persuasion on the motion or to the burden of persuasion at trial.

A moving party without the ultimate burden of persuasion at trial -usually, but not always, a defendant -has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment. See 10A C. Wright, A. Miller and M. Kane, Federal Practice and Procedure S 2727 (3rd ed. 1998). In order to carry its burden of production, the moving party must produce either 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 its ultimate burden of persuasion at trial. See High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F. 2d 563, 574 (9th Cir. 1990). In order to carry its ultimate burden of persuasion on the motion, the moving party must persuade the court that there is no genuine issue of material fact. See id.

If a moving party fails to carry its initial burden of production, the nonmoving party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 160 (1970); High Tech Gays, 895 F.2d at 574; A. Friedenthal, A. Miller and M. Kane, Civil Procedure 460 (3rd ed. 1999). In such a case, the nonmoving party may defeat the motion for summary judgment without producing anything. See High Tech Gays, 895 F.2d at 574; Clark v. Coats & Clark, Inc., 929 F.2d 604, 607 (11th Cir. 1991). If, however, a moving party carries its burden of production, the nonmoving party must produce evidence to support its claim or defense. See High Tech Gays, 895 F.2d at 574; Cline v. Industrial Maintenance Eng'g. & Contracting Co., 200 F.3d 1223, 1229 (9th Cir. 2000). If the nonmoving party fails to produce enough evidence to create a genuine issue of material fact, the moving party wins the motion for summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) ("Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial."). But if the nonmoving party produces enough evidence to create a genuine issue of material fact, the nonmoving party defeats the motion. See id.

In the case before us, plaintiffs Hitachi and Nissan have the ultimate burden of persuasion at trial on the issue of providing timely notice. In their motions for summary judgment, defendants Fritz and Tower were thus moving parties without the ultimate burden of persuasion at trial. As moving parties, Fritz and Tower had both the initial burden of production and the ultimate burden of persuasion on their motions. As nonmoving parties, plaintiffs Hitachi and Nissan had neither the initial burden of production nor the ultimate burden of persuasion on defendants' motions, even though they had the ultimate burden of persuasion at trial.

III

The first question we must decide is whether Fritz and Tower, as the moving parties, carried their initial burden of production, and thus whether Hitachi and Nissan, as the nonmoving parties, had an obligation to produce any evidence in response. The analytic framework is provided by Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970), and Celotex Corp. v. Catrett, 477 U.S. 317 (1986). We recognize that the two cases have caused some confusion in the lower courts, and that some academic commentators consider them to be inconsistent.³ However, we are constrained to treat the cases as consistent, for the Supreme Court in Celotex explicitly relied upon and distinguished Adickes rather than overruling it. See 477 U.S. at 325.

We believe that the perceived tension between Adickes and Celotex may be explained by the fact that the cases focused on different questions. The central question in Adickes was whether the moving party had carried its initial burden of production by producing affirmative evidence negating an essential element of the nonmoving party's claim. The central question in Celotex was whether the moving party had carried its initial burden of production by showing that the nonmoving party did not have enough evidence to carry its ultimate burden of persuasion at trial. In other words, Adickes and Celotex dealt with the two different methods by which a moving party can carry its initial burden of production.⁴

In Adickes, plaintiff was a white school teacher who, with six black students, sat at a table in a restaurant in an S.H. Kress variety store in Hattiesburg, Mississippi, as part of civil rights protest. Adickes was refused service and then, as she left the store, arrested for vagrancy. She brought a civil rights suit against Kress under 42 U.S.C. S 1983, alleging that the store's employees conspired with police to refuse her service because she was a white person " `in the company of Negroes.' " 398 U.S. at 149.

Because Kress was a private company, it engaged in state action in violation of S 1983 only if it conspired with Hattiesburg police officers in denying service. As plaintiff, Adickes had the ultimate burden of persuasion at trial to show such a conspiracy. Kress moved for summary judgment on the ground that there was no conspiracy. Kress submitted a deposition of its store manager stating that he had not communicated with the police; an affidavit of the chief of police stating that the store manager had not requested that petitioner be arrested; and identical affidavits of the two arresting...