Smithfield Foods, Inc. v. United States, Case No. 13–C–651.

CourtUnited States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
Writing for the CourtRUDOLPH T. RANDA, District Judge.
Citation69 F.Supp.3d 915
Decision Date18 November 2014
Docket NumberCase No. 13–C–651.
PartiesSMITHFIELD FOODS, INC., Patrick Cudahy, Inc., Allianz Global Risks U.S. Insurance Co., Ace American Insurance Co., General Security Indemnity Company of Arizona, Liberty Mutual Fire Insurance Co., Tokio Marine and Nichido Fire Insurance Company, Ltd., and Certain Underwriters at Lloyd's of London and its Members Subscribing to Contract No. DP685509(1), Unique Market Reference B0509685509, Plaintiffs, v. UNITED STATES of America, Defendant.

69 F.Supp.3d 915

SMITHFIELD FOODS, INC., Patrick Cudahy, Inc., Allianz Global Risks U.S. Insurance Co., Ace American Insurance Co., General Security Indemnity Company of Arizona, Liberty Mutual Fire Insurance Co., Tokio Marine and Nichido Fire Insurance Company, Ltd., and Certain Underwriters at Lloyd's of London and its Members Subscribing to Contract No. DP685509(1), Unique Market Reference B0509685509, Plaintiffs
v.
UNITED STATES of America, Defendant.

Case No. 13–C–651.

United States District Court, E.D. Wisconsin.

Signed Nov. 18, 2014.


69 F.Supp.3d 918

Alyssa J. Endelman, Charles R. Tuffley, Paul A. Casetta, Todd B. Denenberg, Denenberg Tuffley PLLC, Southfield, MI, for Plaintiffs.

Robin D. Smith, United States Department of Justice, Washington, DC, for Defendant.

DECISION AND ORDER

RUDOLPH T. RANDA, District Judge.

This negligence action against Defendant United States of America under the Federal Tort Claims Act (“FTCA” or the “Act”), 28 U.S.C. §§ 2671 et seq., arises from a five-day fire at Plaintiff Patrick Cudahy, Incorporated (“Patrick Cudahy”) in Cudahy, Wisconsin. The fire was ignited by a military flare stolen from a California military base.1

The Plaintiffs, Patrick Cudahy, Smithfield Foods (“Smithfield”)—Patrick Cudahy's parent corporation, and Smithfield's six insurers listed above, allege that the Navy owed a duty to the public, including Smithfield, to keep munitions and ordnance properly “tracked, secured and stored,” and to prevent any item from “finding its way into an uncontrolled and unsecured area, or into unauthorized hands;” and that the Navy was negligent, in violation of Cal. Civ.Code § 1714 and California common law. This Decision and Order addresses the United States' motion for summary judgment. (ECF No. 68.)2

On June 7, 2013, the Central District of California court issued an order transferring the action to this District pursuant to 28 U.S.C. § 1404(a). (ECF No. 97.) In its order, the California district court applied California conflict of law principles and concluded that Wisconsin law regarding comparative negligence should be applied.

The transfer under § 1404(a) does not affect the applicable law. Anderson v. Aon Corp., 614 F.3d 361, 365 (7th Cir.2010) (citing Ferens v. John Deere Co., 494 U.S. 516, 110 S.Ct. 1274, 108 L.Ed.2d 443 (1990) ). Thus, California's choice-of-law rules, which governed in the federal district court in California, continue to govern the proceeding in this District. See id.

69 F.Supp.3d 919

(citing Eckstein v. Balcor Film Investors, 8 F.3d 1121, 1126–27 (7th Cir.1993) ). However, the procedures of this Circuit govern the action. See id.

MOTION FOR SUMMARY JUDGMENT

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a) ; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment should be granted when a party that has had ample time for discovery 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.” Id. If the moving party establishes the absence of a genuine issue of material fact, the non-moving party must demonstrate that there is a genuine dispute over the material facts of the case. Id. at 323–24, 106 S.Ct. 2548. The Court must accept as true the evidence of the nonmovant and draw all justifiable inferences in their favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is appropriate only if, on the record as a whole, a rational trier of fact could not find for the non-moving party. Rogers v. City of Chi., 320 F.3d 748, 752 (7th Cir.2003).

Relevant Facts3

Joshua Popp (“Popp”), who took the military flare that ignited the Patrick Cudahy fire and transported it to Wisconsin, served in the United States Marine Corps (“Corps”) from 2004 to 2008. Popp earned numerous awards for his service, including the Marine Corps Good Conduct Medal, the Combat Action Ribbon, a Certificate of Commendation, and a Purple Heart.

The flare was an M125 flare. An M125 green star cluster flare is 10.16 inches long and 1.67 inches in diameter, contains 29.62 grams of magnesium fuel, and has magnesium clusters that burn for 6 to 12 seconds before the fuel is exhausted.4

While at Camp Pendleton in 2005, Popp was instructed in the use of an M125 signal flare. The flare is launched by holding the flare in one hand away from the body while pointing its top towards the sky and striking a firing mechanism on the bottom with the other hand. During training the Corps uses flares to signal a shift in the line of fire.

During 2006 Popp's unit was deployed to Ramadi, Iraq, where Popp was wounded in a mortar attack and his unit suffered more than 100 casualties. After his first deployment, Popp was assigned to an intelligence unit because of his reliability and trustworthiness. The intelligence unit trained at the Corps Air Ground Combat Center in Twentynine Palms, California, and Popp trained with that unit prior to his second deployment to Ramadi in April of 2007.

The Twentynine Palms base is separated into live-fire training ranges and non-live-fire areas where live ammunition is not issued or expended. Two combat center orders, CCO 3500.4F and CCO

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8000.4D5 , promulgated by the command at Twentynine Palms are relevant to this action. The regulations do not apply to any other bases and may be altered by the Twentynine Palms command.

Responding to the unit's 2006 Ramadi experiences, pre-deployment training at Twentynine Palms was altered to better prepare Marines for combat conditions in Iraq and Afghanistan. Popp was not issued an M125 flare at any point during his training at Twentynine Palms. Popp was issued live ammunition during his training with the intelligence unit, and he returned the ammunition to his supervisor at the conclusion of each exercise. Popp's supervisors searched his unit after every exercise on a live-fire range. The search, including a pat-down of each Marine and the emptying and physical search of each Marine's bags, was conducted before the Marines could leave the live-fire training range and travel to Camp Wilson (a non-live-fire area). Popp's supervisors also inventoried all unexpended ammunition before leaving a live-fire range.

Popp's supervisors thoroughly indoctrinated the Marines in his unit in all safety precautions, procedures, and principles, and they ordered that the Marines sweep live-fire ranges by hand after exercises to recover ordnance and salvageable ammunition. Popp's supervisors also instructed the Marines to use ammunition only for training purposes and not to bury or hide any munitions. Munitions were transported in vehicles inspected by a certified driver, and a guard was assigned to an ammunition truck at all times to prevent pilferage. Unit commanders can order that Marines be searched at almost any time and place.

During rest periods between live-fire range exercises, Marines stay at Camp Wilson to get a shower, a hot meal, and a haircut. Popp's supervisors prevented him and his unit from transporting munitions into or staging munitions at Camp Wilson, which is comprised of several rows of dome-shaped huts. Each hut accommodates about 50 Marines. A large dirt area behind the huts is designated as a motor pool. The motor pool is surrounded by large dirt mounds.

In 2007, Camp Wilson was operated by the Mojave Viper Support Detachment, which enforced the standard operating procedure for Camp Wilson (the “2007 Camp Wilson SOP”). The 2007 Camp Wilson SOP required an extensive check-out procedure, which included inspection of the dorms, scheduling of transportation, return of food containers and waste, and removal of trash prior to a unit's departure. The 2007 Camp Wilson SOP did not require searches of Marines or their bags before the Marines left Camp Wilson to return to “Mainside”6 of the base at Twentynine Palms.7

In April of 2007, shortly before his second deployment, Popp found an M125 flare and a smoke grenade buried in a dirt mound behind the motor pool at Camp

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Wilson.8 How the flare(s) and smoke grenade(s) came to be located in the berm is unknown. Twentynine Palms is subject to flash flooding that can bury or uncover ammunition. According to CCO 3500.4F, Camp Wilson is not a live-fire range, and since the 1970s it has been an ammunition free zone where live ammunition is not issued or expended. Prior to the 1970s, Camp Wilson was an “impact area” where ordnance and ammunition were expended. Camp Wilson is also used by members of foreign militaries, such as that of Saudi Arabia, who use the same ordnance as the Corps—including M125 flares—when training on the ranges at Twentynine Palms. However, foreign troops are also subject to mandatory shakedowns when they leave the live-fire ranges and travel to Camp Wilson.

The Corps repeatedly instructed Popp to report abandoned or found ammunition or ordnance...

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2 practice notes
  • Perez v. PBI Bank, Inc., No. 3:13CV1400 PPS.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • November 20, 2014
    ...rights”]. Furthermore, the argument appears to have been abandoned by the board members as it does not appear in their reply [DE 49].69 F.Supp.3d 915Equitable reformation is only vaguely touched upon in the pleading of Count II of the third-party complaint. After asserting that the board me......
  • Smithfield Foods, Inc. v. United States, Case No. 13-C-651
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • March 7, 2016
    ...rules, which governed the federal district court in California, continued to apply. Smithfield Foods, Inc. v. United States, 69 F. Supp. 3d 915, 919-20 (E.D. Wis. 2014). The Court noted that the California district court had concluded Wisconsin law regarding comparative negligence should be......
2 cases
  • Perez v. PBI Bank, Inc., No. 3:13CV1400 PPS.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • November 20, 2014
    ...rights”]. Furthermore, the argument appears to have been abandoned by the board members as it does not appear in their reply [DE 49].69 F.Supp.3d 915Equitable reformation is only vaguely touched upon in the pleading of Count II of the third-party complaint. After asserting that the board me......
  • Smithfield Foods, Inc. v. United States, Case No. 13-C-651
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • March 7, 2016
    ...rules, which governed the federal district court in California, continued to apply. Smithfield Foods, Inc. v. United States, 69 F. Supp. 3d 915, 919-20 (E.D. Wis. 2014). The Court noted that the California district court had concluded Wisconsin law regarding comparative negligence should be......

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