The opinion of the court was delivered by: Larimer, Chief Judge.
On January 8, 1998, plaintiff George Case ("plaintiff" or
"Case"), a sheeter operator at Garlock, Inc., suffered injuries
when his right arm became entangled in a Model KD-IT-45/15
calender machine*fn1 that he was operating during the course
of his employment. Troester Maschinenbau GmbH & Co. ("TMG"), a
partnership, manufactured the machine in question in 1982.
George Case and his wife, Anna Case (collectively "plaintiffs"),
commenced the present action, against defendants Paul Troester
Maschinenfabrik ("PTM"), another German partnership, and
Troester Machinery, Ltd. ("TML"), an American corporation based
in Ohio. Plaintiffs assert claims of breach of express and
implied warranties of merchantability and fitness for a
particular purpose, strict products liability for design defects
and failure to warn, negligence stemming from a manufacturing
defect, gross negligence, and, on behalf of Anna Case, loss of
consortium. Presently before the Court is defendants' motion for
summary judgment, and plaintiffs' cross-motion to amend the
complaint and for additional discovery.
A principal element of defendants' motion for summary judgment
is their contention that neither of them manufactured the
machine plaintiff was operating when he was injured. Instead,
they contend that they had no relationship to TMG, the German
entity that manufactured the machine. A brief review of the
nature and history of these entities is, therefore, appropriate.
TMG was founded in 1969, and based in Sontra, Germany.
Defendants maintain that TMG produced only manufacturing mills
and calenders. In 1994, it terminated business operations, was
dissolved and liquidated, and, according to defendants, ceased
to exist as a legal entity under German law. Defendants further
submit that at the same time, TMG's real estate and "nearly all"
of its production machines were sold to third parties, but
certain raw materials, two or three used machines and certain
furniture were purchased by PTM. The proceeds from the
liquidation of TMG's assets were utilized to satisfy its debts,
and the remaining balance was distributed to TMG's partners.
PTM has been a partnership based in Hanover, Germany since
1892. Between 1969 and 1994, during TMG's existence, PTM
manufactured only vulcanizing plants, rubber extruders, plastic
extruders and complete production lines. Defendants maintain
that there is no legal relationship between PTM and TMG, and PTM
is not the successor-in-interest to TMG. They maintain that PTM
is a "completely separate, unrelated and distinct company from
TMG." Dkt. # 17, ¶ 13. At the same time, defendants concede that
"some, but not all, of TMG's former partners, management and/or
shareholders now serve as partners and/or in management of PTM."
Id., ¶ 15. Defendants also concede that since 1994, PTM has
produced two calender machines, but they consider them different
in design and operation from those previously produced by TMG.
PTM further asserts that it never assumed TMG's tort liabilities
or any of its debts.
TML was established as an Ohio corporation in 1995 for the
sole purpose of selling rubber and plastic extrusion machines in
the United States. It has never manufactured any products. TML's
management, personnel, assets and partners are all different
Plaintiffs maintain that Troester is a trade name used by a
partnership that has produced various machines for use in the
manufacture of gaskets since 1892. They also assert that the
machine involved in the accident was assembled pursuant to a
cooperation agreement between TMG and PTM, and that "various
kinds of calenders" were among the machines that TMG and PTM
manufactured together. The manufacture of the machine in
question was performed under the engineering, technical, and
design direction of Hans Johzhim Golish, who was the technical
director of both TMG and PTM and a PTM
employee for 23 years. Moreover, all partners of TMG were
partners in PTM. See Dkt. # 24, Plaintiffs' Ex. 8.
Plaintiffs also assert that prior to 1970 the KD-IT-45/15
calender machine was produced at PTM's location in Hannover.
During TMG's existence, the same model calender machine was
produced by TMG in Sontra. Upon its dissolution in 1994, all of
TMG's patents, design drawings, drafts, technical information,
engineering plans, histories of modifications, customer lists
and sales information were transferred to PTM. Finally,
plaintiffs assert that since TMG's dissolution, PTM continues to
service TMG's former customers.
I. Summary Judgment-General Standards
Summary judgment is appropriate where "there is no genuine
issue as to any material fact and . . . the moving party is
entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).
However, the burden of demonstrating the absence of any genuine
issue of material fact rests on the moving party, Celotex Corp.
v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986), and, in ruling on a motion for summary judgment, the
Court "must view the evidence in the light most favorable to the
non-moving party and draw all reasonable inferences in its
favor." McKelvie v. Cooper, 190 F.3d 58, 61 (2d Cir. 1999).
To defeat summary judgment, the nonmoving party must go beyond
the pleadings and designate "specific facts showing that there
is a genuine issue for trial." Fed.R.Civ.P. 56(e); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986). A genuine issue of material fact exists only
if the record, taken as a whole, could lead a reasonable trier
of fact to find in favor of the non-movant. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct.
1348, 89 L.Ed.2d 538 (1986). On a motion for summary judgment,
"a court's responsibility is to assess whether there are any
factual issues to be tried." Coach Leatherware Co. v.
AnnTaylor, Inc., 933 ...