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Phillips v. Walmart, Inc.

United States District Court, D. Montana, Butte Division

March 3, 2014

GAIL PHILLIPS, Plaintiff,
v.
WALMART, INC., a corporation; THE NUNES COMPANY, INC., a corporation; TAYLOR FARMS CALIFORNIA, INC., a corporation; and JOHN DOES 1-8, Defendants.

ORDER

JEREMIAH C. LYNCH, Magistrate Judge.

This products liability and negligence action comes before the Court on Defendant The Nunes Company's ("Nunes") motion for summary judgment, and Plaintiff Gail Phillips' ("Phillips") request for relief pursuant to Federal Rule of Civil Procedure 56(d). For the reasons set forth below, Phillips' request for Rule 56(d) relief is denied, and Nunes' motion for summary judgment is granted.

I. Background

On March 11, 2013, Phillips was allegedly injured while preparing sandwiches in the deli department of the Wal-Mart in Bozeman, Montana, when her hand was punctured by a foreign object in bag of lettuce. Phillips returned the bag of lettuce to the cooler, and it was subsequently disposed of. Because the bag of lettuce was not preserved, it has not been subject to inspection by any of the parties.

In response to discovery requests asking her to describe the bag and the lettuce, however, Phillips has answered that she "used prewashed, Romaine leaf lettuce that [she] got from the deli cooler. It was packaged in a sealed plastic bag." (Doc. 32-1, at 5). Phillips elaborated as follows in a supplemental answer:

This was loose, leaf lettuce. It came in a clear, unmarked plastic bag. The bag was heat sealed and roughly 12" by 8" in size. I used a knife from the deli to open the bag. I made 12" submarine sandwiches with the lettuce and other ingredients. The lettuce was not modified from the form it was packaged in to make the sandwiches.

(Doc. 32-4, at 2).

Based on their own initial investigation, Phillips' counsel identified Taylor Farms California, Inc. as the lettuce distributor. In May 2013, an individual who was handling Wal-Mart's subrogation claim against Phillips indicated in response to an inquiry from Phillips' counsel that Nunes was a Wal-Mart produce supplier and provided a Universal Product Code ("UPC") number.[1] (Doc. 35-5, at 1)

In June 2013, Phillips commenced this action against Nunes in state court, alleging that Nunes produced the contaminated bag of lettuce and sold it to Wal-Mart. Nunes later removed the case to this Court based on diversity jurisdiction, and Phillips has since amended her complaint to add Walmart, Inc. and Taylor Farms as defendants. Phillips brings a claim for products liability against Nunes and Taylor Farms, alleging that one of them manufactured and supplied the defective bag of lettuce to Walmart. Phillips also asserts a negligence claim against Taylor Farms, and a spoliation claim against Walmart for allegedly destroying the bag of lettuce.

Nunes moves for summary judgment on the ground that Phillips cannot make out a prima facie claim of products liability.[2]

II. Summary Judgment Standards

Under Federal Rule of Civil Procedure 56(a), a party is entitled to summary judgment "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." The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of any genuine issue of material fact. Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986).

Where, as here, the moving party does not bear the ultimate burden of persuasion at trial, it "has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment." Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). To carry its burden of production, "the moving party must either produce 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 it ultimate burden of persuasion at trial." Nissan Fire, 210 F.3d at 1102. The moving party may carry its burden of persuasion by showing "that there is no genuine issue of material fact." Nissan, 201 F.d at 1102; see also Sluimer v. Verity, Inc., 606 F.3d 584, 586 (9th Cir. 2010) ("The moving party need only point out to the Court that there is an absence of evidence to support the non-moving party's case.").

Once the moving party has satisfied its initial burden with a properly supported motion, summary judgment is appropriate unless the non-moving party designates by affidavits, depositions, answers to interrogatories or admissions on file "specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. 317, 324 (1986). The party opposing a motion for summary judgment "may not rest upon ...


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