Acosta v. Suomy S.R.L.

• Decision Date: 06 September 2016
• Docket Number: CIVIL NO. 2:14-CV-455
• Parties: DIANA ACOSTA, et al., Plaintiffs, v. SUOMY S.R.L.; SUOMY S.P.A.; and VAN LEEUWEN ENTERPRISES, INC., Defendants.
• Court: U.S. District Court — Southern District of Texas

DIANA ACOSTA, et al., Plaintiffs, v. SUOMY S.R.L.; SUOMY S.P.A.; andVAN LEEUWEN ENTERPRISES, INC., Defendants.

CIVIL NO. 2:14-CV-455

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS CORPUS CHRISTI DIVISION

ENTERED: September 7, 2016

September 6, 2016

MEMORANDUM OPINION AND ORDER

The Court has before it Defendant Van Leeuwen Enterprises, Inc.'s ("Van Leeuwen") motion for summary judgment, Dkt. No. 75; Plaintiffs' response, Dkt. No. 77; and Van Leeuwen's reply, Dkt. No. 78. Van Leeuwen also moves for leave to file a crossclaim against Defendant Suomy, S.p.A., Dkt. No. 72. For the reasons that follow, the Court grants both motions.

I. Background

This case stems from a motorcycle accident that allegedly occurred in Nueces County, Texas on October 24, 2012. Pls.' 1st Am. Orig. Pet. ¶¶ 4.1-4.2, Dkt. No. 1 Ex. 17. Plaintiffs claim that defects in a Suomy Airtrix motorcycle helmet ("the helmet") worn by decedent Brian Barrera ("Barrera") "were a producing cause of [his] injuries and death." Id. ¶ 4.6.

Plaintiffs named ten defendants in their First Amended Original Petition. Pls.' 1st Am. Orig. Pet. ¶¶ 3.3-3.12. Plaintiffs plead that Defendants designed, marketed, manufactured, distributed, sold, and placed Suomy Airtrix helmets into the stream of commerce. Id. ¶¶ 5.1-5.2. All but two defendants have been dismissed. See Dkt. No. 63 at 1; Dkt. No. 39 at 2 (dismissing subject to tolling agreement reached by Plaintiffs and respective defendants); Dkt. No. 47 at 6.

Defendant Suomy, S.p.A. ("Suomy"), an Italian corporation, answered Plaintiffs' amended petition on March 26, 2016, Dkt. No. 33. This Court granted Suomy's counsel leave to withdraw on January 15, 2016. Dkt. No. 67 at 2. No attorney has since appeared on Suomy's behalf.

Unlike Suomy, Van Leeuwen, the other remaining defendant, continues to litigate this case. It has filed a motion for summary judgment seeking dismissal of plaintiffs' claims against it. Dkt. No. 75. Van Leeuwen separately moves for leave to file a crossclaim against Suomy, Dkt. No. 72.

II. Summary Judgment

Section 82.003(a) of the Texas Civil Practice & Remedies Code provides that "A seller that did not manufacture a product is not liable for harm caused to the claimant by that product unless the claimant proves" one or more of seven listed exceptions. Tex. Civ. Prac. & Rem. Code § 82.003 (West 2016). Plaintiffs do not argue in their response that Van Leeuwen's evidence is insufficient to carry its initial burden at summary judgment. Nor do Plaintiffs contend that they have produced sufficient evidence to create a fact issue as to any of the enumerated exceptions to § 82.003(a).¹ Instead, Plaintiffs argue that the undisputed evidence ofVan Leeuwen's involvement in the helmet's importation creates a fact dispute over whether Van Leeuwen manufactured the helmet within the meaning of § 82003(a). See § 82.003(a) (applying only to "seller that did not manufacture" a product). In support of their position, Plaintiffs refer the court to the National Traffic and Motor Vehicle Safety Act (the "Vehicle Safety Act"), 49 U.S.C. § 30102(a)(5)(B); The Consumer Products Safety Act ("Safety Act"), 15 U.S.C. §§ 2051-2089; and regulatory pronouncements by federal agencies promulgated pursuant to those statutes. Plaintiffs assert that those authorities show that "Van Leuuwen is a manufacturer under United States law." Dkt. No. 77 at 6; accord id. at 7, 13. Applying Texas law to this diversity case, the Court concludes that based on the federal authorities Plaintiffs cite the Texas Supreme Court would not likely hold that there is a fact dispute over whether Van Leeuwen manufactured the helmet at issue here within the meaning of § 82.003(a).²

A. Summary Judgment Standard

"Summary judgment is appropriate where the competent summary judgment evidence demonstrates that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Brumfield v. Hollins, 551F.3d 322, 326 (5th Cir. 2008) (citing Bolton v. City of Dallas, 472 F.3d 261, 263 (5th Cir. 2006)); accord Fed. R. Civ. P. 56(a). "A genuine issue of material fact exists when the evidence is such that a reasonable jury could return a verdict for the non-movant." Piazza's Seafood World, LLC v. Odom, 448 F.3d 744, 752 (5th Cir. 2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The Court must view all evidence in the light most favorable to the non-moving party at summary judgment. Brumfield, 551 F.3d at 326 (citing Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986)); Piazza's Seafood World, 448 F.3d at 752 (citation omitted); Lockett v. Wal-Mart Stores, Inc., 337 F. Supp. 2d 887, 891 (E.D. Tex. 2004) (citation omitted). Factual controversies must be resolved in favor of the non-movant, "but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc, per curiam).

The party moving for summary judgment bears the "burden of showing this Court that summary judgment is appropriate." Brumfield, 551 F.3d at 326 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The burden of production a party must initially carry depends upon the allocation of the burden of proof at trial. See Shanze Enters., Inc. v. Am. Cas. Co. of Reading, 150 F. Supp. 3d 771, 776 (N.D. Tex. Dec. 15, 2015) ("Each party's summary judgment burden depends on whether it is addressing a claim or defense for which it will have the burden of proof at trial."). "[I]f the movant bears the burden of proof on an issue, either because he is the plaintiff or as a defendant he is asserting an affirmative defense, he must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in his favor." Tesoros Trading Co. v. Tesoros Misticos, Inc., 10 F. Supp. 3d 701, 709 (N.D. Tex. 2014) (quoting Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986) (emphasis in Fontenot); accord Shanze Enters., Inc., 150 at 776. On the other hand, when the nonmovant will bear the burden of proof at trial, the movant may discharge its initial burden at summary judgment by "merely point[ing] to the absence of evidence and thereby shift to the non-movant the burden of demonstrating by competent summary judgment proof that there is anissue of material fact warranting trial." Transam. Ins. Co. v. Avenell, 66 F.3d 715, 718-19 (5th Cir. 1995) (per curiam); see Celotex, 477 U.S. at 323-25. Once the party seeking summary judgment has discharged its initial burden, the nonmovant must come forward with specific evidence to show that there is a genuine issue of fact. Lockett, 337 F. Supp. 2d at 891; see Ashe v. Corley, 992 F.2d 540, 543 (5th Cir. 1993). The non-movant may not merely rely on conclusory allegations or the pleadings. Lockett, 337 F. Supp. 2d at 891. Rather, it must cite specific facts identifying a genuine issue to be tried in order to avoid summary judgment. See Fed. R. Civ. P. 56(c); Piazza's Seafood World, 448 F.3d at 752; Lockett, 337 F. Supp. 2d at 891. "Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment." Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 & n.7 (5th Cir. 1992)); accord Fed. R. Civ. P. 56(c)(3) ("The court need consider only the cited materials, but it may consider other materials in the record."). Thus, once it is shown that a genuine issue of material fact does not exist, "[s]ummary judgment is appropriate . . . if the non-movant 'fails to make a showing sufficient to establish the existence of an element essential to that party's case.'" Arbaugh v. Y&H Corp., 380 F.3d 219, 222-23 (5th Cir. 2004) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).

B. Undisputed Facts

In support of its motion for summary judgment, Van Leeuwen submits three photographs, Dkt. No. 75 Ex. A, B, E; Suomy's answers to Van Leeuwen's first set of interrogatories, id. Ex. C; and a transcript of the deposition taken February 18, 2016, of its corporate representative, Curt Van Leeuwen ("C. Van Leeuwen"), id. Ex. D. Plaintiffs attach the entire transcript of C. Van Leeuwen's deposition to their response. Dkt. No. 77-3 Ex. A, Attach. 1.

Plaintiffs and Van Leeuwen emphasize different aspects of C. Van Leeuwen's testimony and the other summary-judgment evidence, but neither disputes Van Leeuwen's factual role in the design, manufacture, and distribution of the helmetworn by Barrera. Presumably using the words in their ordinary sense, Suomy affirmed in its answers to interrogatories that it "designed and manufactured the helmet" at issue. Dkt. No. 75 Ex. C at 6. A photograph of what Van Leeuwen represents to be the helmet's instruction manual includes the word "Suomy" on what appears to be its title page but makes no mention of Van Leeuwen. See Dkt. No. 75 Ex. E. Plaintiffs do not challenge Van Leeuwen's implicit assertion that a reasonable fact finder could infer from that photograph that Suomy, but not Van Leeuwen, held itself out as having designed and assembled the helmet. See id. Unchallenged portions of C. Van Leeuwen's deposition, Dkt. No. 75 Ex. D, Dkt. No. 77-3 Ex. A, Attach. 1, further clarify Van Leeuwen's role. C. Van Leeuwen testified that Van Leeuwen's role was limited to importing helmets only; he understood that Suomy designed and manufactured the helmets Van Leeuwen imports. Ibid. at 28:3-14, 30:25-31:4. Nor, on this record, does Van Leeuwen open the helmets' boxes or modify them after receipt. See ibid. at 100:3-16 (testifying that boxes are not opened for any reason); accord ibid. at 91:15-21 (giving same testimony in substance and stating that Van Leeuwen did not "alter or modify this helmet in any way once it was received"). Van Leeuwen's role is...