United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
DANNY C. REEVES, District Judge.
This matter is pending for consideration of Third-Party Defendant Demag Cranes and Components Corporation's ("Demag") second motion for summary judgment. [Record No. 57] Defendant and Third-Party Plaintiff Konecranes, Inc. ("Konecranes") opposes the motion. [Record No. 60] For the reasons discussed below, the motion will be granted.
On May 8, 2012, while working at Central Motor Wheel of American, Inc. ("CMWA"), Plaintiff George Vincent Vaughn was injured when an industrial overhead crane pinned his foot. [Record No. 1-2, p. 21] The crane, originally a Demag-brand product, allegedly moved "independent of human control." [ Id. ] Since the crane's original installation at CMWA in 1993, it has been modified considerably, including the addition of a remote control Hetronic USA, Inc. ("Hetronic") transmitter. [Record No. 1-2, p. 22] On April 18, 2013, Vaughn filed suit in Bourbon Circuit Court in Kentucky against Konecranes, alleging, inter alia, negligent repair, failure to warn, and product liability for the manufacture, design, sale, and delivery of the crane. [Record No. 1-1] In turn, Konecranes filed Third-Party Complaints against Demag, Hetronic, and CMWA for apportionment and indemnification and removed this action from Bourbon Circuit Court based on diversity jurisdiction. [Record Nos. 1, 1-5, 24] According to Konecranes, Demag manufactured the crane in question and Hetronic manufactured the radio transmitter that operated the crane. [Record No. 1-2, p. 22]
On October 2, 2014, the Court granted partial summary judgment to Konecranes on Vaughn's claims of design, manufacture, sale, and delivery of the subject crane. [Record No. 59] The only claims remaining against Konecranes are for negligent repair, failure to warn, and product liability for the Konecranes-brand components of the modified crane. [ Id. ] Demag now moves the Court to enter summary judgment in its favor on the third-party claims.
This action is in federal court on the basis of diversity jurisdiction under 28 U.S.C. § 1332. Because Kentucky is the forum state, its substantive law will be used. Erie Railroad v. Tompkins, 304 U.S. 64, 58 (1938); Raw v. Liberty Mut. Fire Ins. Co., 462 F.3d 521, 526 (6th Cir. 2006). However, federal procedural law will govern as applicable, including establishing the standard for summary judgment. Weaver v. Caldwell Tanks, Inc., 190 F.Appx. 404, 408 (6th Cir. 2006).
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A dispute over a material fact is not "genuine" unless a reasonable jury could return a verdict for the nonmoving party. That is, the determination must be "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
The moving party bears the initial burden of informing the Court of the basis for its motion and identifying those portions of the record that establish the absence of a genuine issue of material fact. Chao v. Hall Holding Co., Inc., 285 F.3d 415 (6th Cir. 2002). Once the movant has satisfied this burden, the non-movant must go beyond the assertions made in the pleadings and come forward with specific evidence to demonstrate that there is a genuine issue of material fact. Id. The nonmoving party cannot rely upon the assertions in its pleadings; rather, that party must come forward with probative evidence, such as sworn affidavits, to support its claims. Celotex, 477 U.S. at 324. However, the trial court does not have a duty to search the entire record to establish that it is bereft of any genuine issue of material fact. In re Morris, 260 F.3d 654 (6th Cir. 2002). The nonmoving party has an affirmative obligation to direct the Court's attention to those specific portions of the record upon which it seeks to rely to create genuine issues of material fact. Id. In determining whether there are any genuine issues of material fact, the Court must review all the fact and the inferences drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).
Courts may grant summary judgment before the end of the discovery period, provided that sufficient time for discovery has passed. Bowling v. Wal-Mart Stores, Inc., 233 Fed.App'x. 40 (6th Cir. 2007). The nonmoving party must inform the Court of its need for discovery. Abercrombie & Fitch Stores, Inc. v. Am. Eagle Outfitters, Inc., 280 F.3d 619, 627 (6th Cir. 2002). Rule 56(d) of the Federal Rules of Civil Procedure provides:
If a non-movant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or take discovery; or (3) issue any other appropriate order.
F. R. Civ. P. 56(d). Accordingly, before a summary judgment motion is decided, the nonmoving party may file an affidavit that details the discovery needed or file a motion for additional discovery. If he does neither, courts will "not normally address whether there was adequate time for discovery." Plott v. General Motors Corp., 71 F.3d 1190, 1196 (6th Cir. 1995). The nonmovant must show it diligently pursued discovery and explain why those efforts have not yielded the necessary facts. Id. In addition, the Sixth Circuit has observed that "vague assertions of the need for discovery are not enough" to meet the requirements of Rule 56(d). Summers v. Leis, 368 F.3d 881, 887 (6th Cir. 2004). Instead, the nonmoving party "must state with some precision the material [it] hopes to obtain with further discovery, and how exactly [it] expects those materials would help [it] in opposing summary judgment." Id.
The parties have taken substantial discovery since the case's inception in Bourbon Circuit Court. At least fifteen witnesses have been deposed, and multiple incident reports, repair records, and accident investigations have been exchanged. [Record No. 61, pp. 4-6] Although the time for discovery among the parties has not yet expired, Konecranes has made no additional requests for time to respond. And while Konecranes asserts that it would be "imprudent and impractical" to grant summary judgment before expert testimony has been taken, the defendant has neither shown that it diligently pursued such discovery nor explained why those efforts have not yielded results. [Record No. 60, p. 9] This Court has previously cautioned the parties that any requests for additional discovery on a motion for summary ...