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Desclafani v. Pave-Mark Corp.

August 22, 2008

RICHARD DESCLAFANI, PLAINTIFF,
v.
PAVE-MARK CORPORATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Henry Pitman, United States Magistrate Judge

OPINION AND ORDER

I. Introduction

Plaintiff, Richard Desclafani, commenced this diversity action to recover damages for injuries he sustained while using an industrial kettle; the kettle is used to melt pavement-marking material prior to its application to a road surface. Plaintiff asserts claims of negligence, strict products liability, breach of warranty, and failure to warn against Pave-Mark Corporation, the manufacturer of the kettle, and Stimsonite Corporation and Avery Dennison Corporation, two successor corporations of Pave-Mark. By notice of motion dated November 20, 2007 (Docket Item 13), Stimsonite and Avery Dennison (the "Moving Defendants") move for an Order, pursuant to Rule 56 of the Federal Rules of Civil Procedure, granting summary judgment and dismissing plaintiff's claims against them.

The parties consented to my exercising plenary jurisdiction over this matter pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, the Moving Defendants' motion for summary judgment is granted.

II. Facts*fn1

Pave-Mark was a privately owned company that manufactured, among other things, kettles used to melt pavement-marking material (Complaint, dated Apr. 15, 2007 ("Compl.") at ¶ 26; Declaration of Thomas C. Ratchford, dated Oct. 25, 2007 ("Ratchford Decl.") at ¶ 5). On or about April 28, 1995, Stimsonite purchased substantially all of Pave-Mark's assets pursuant to an Asset Purchase Agreement (the "APA") (Moving Defendants' Rule 56.1 Statement at ¶ 5; Ratchford Decl. at ¶ 7; APA, dated Apr. 28, 1995, attached as Exhibit 1 to Ratchford Decl.). The APA was signed by Pave-Mark's majority stockholders, Martin Smith, Judith Smith, and Walter Finley (APA at 48). In Section 2.1 of the APA, Pave-Mark expressly assumed and Stimsonite expressly disavowed certain liabilities:

[Pave-Mark] and the Stockholders shall retain, and [Stimsonite] shall not assume, or be responsible or liable with respect to, any liabilities and obligations of [Pave-Mark] or the Stockholders whether or not relating to the Business or the Acquired Assets, whether fixed, contingent or otherwise, whether known or unknown and whether incurred prior to, at or subsequent to the Closing Date (collectively, the "Retained Liabilities") (APA at § 2.1). Specifically, the retained liabilities included [a]ny liability or obligation relating to any claim, suit, litigation, proceeding or investigation . . . instituted hereafter, that is based in whole or in part on events or conditions occurring or existing in connection with, arising out of, resulting from or relating to, directly or indirectly, the operation of [Pave-Mark] prior to the Closing Date . . . . (APA at § 2.1(f)). Pave-Mark also retained and Stimsonite disavowed liability for any claim arising from "an alleged defect in design, manufacture, materials, workmanship of any Product manufactured, distributed, sold or otherwise disposed of by or on behalf of [Pave-Mark], or any alleged failure to warn, or from any breach of implied warranties or representations" (APA at § 6.1(r)(i); see APA at § 2.1(g)). Stimsonite did expressly assume certain liabilities that are of no relevance here, such as accounts payable, employee severance obligations, and obligations relating to employee sick and vacation days (see APA at § 2.2). At a later date, Avery Dennison succeeded to Stimsonite's interests (Compl. at ¶¶ 22-25).

On or about June 4, 2005, plaintiff, an employee of Iberia Road Markings Company, was injured while using a Pave-Mark kettle (Compl. at ¶ 36).*fn2 It appears that plaintiff is alleging that Pave-Mark and not the Moving Defendants manufactured and sold the kettle in issue (Compl. at ¶¶ 26-29, 36, 41). Plaintiff also alleges, however, that the Moving Defendants succeeded to Pave-Mark's rights and liabilities through a series of corporate acquisitions (Compl. at ¶¶ 19-25). Thus, it appears that plaintiff is proceeding against the Moving Defendants on a theory of successor liability only.

III. Analysis

A. The Moving Defendants'

Motion for Summary Judgment

1. Standard for Summary Judgment

The standards applicable to a motion for summary judgment are well-settled and require only brief review.

Summary judgment shall be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). This form of relief is appropriate when, after discovery, the party -- here plaintiff -- against whom summary judgment is sought, has not shown that evidence of an essential element of her case -- one on which she has the burden of proof -- exists. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). This form of remedy is inappropriate when the issue to be resolved is both genuine and related to a disputed material fact. An alleged factual dispute regarding immaterial or minor facts between the parties will not defeat an otherwise properly supported motion for summary judgment. See Howard v. Gleason Corp., 901 F.2d 1154, 1159 (2d Cir. 1990). Moreover, the existence of a mere scintilla of evidence in support of non-movant's position is insufficient to defeat the motion; there must be evidence on which a jury could reasonably find for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

If the movant demonstrates an absence of a genuine issue of material fact, a limited burden of production shifts to the non-movant, who must "demonstrate more than some metaphysical doubt as to the material facts," and come forward with "specific facts showing that there is a genuine issue for trial." Aslanidis v. United States Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993). If the non-movant fails to meet this burden, summary judgment will be granted against it.

Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 84 (2d Cir. 2004); accord Rubens v. Mason, 527 F.3d 252, 254 (2d Cir. 2008); Jeffreys v. City of New York, 426 F.3d 549, 553-54 (2d Cir. 2005).

"In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may satisfy [its] burden by pointing to an absence of evidence to support an essential element of the nonmoving party's claim." Vann v. City of New York, 72 F.3d 1040, 1048 (2d Cir. 1995). "A defendant moving for summary judgment must prevail if the plaintiff fails to come forward with enough evidence to create a genuine factual ...


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