United States District Court, D. Massachusetts
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT
Gail Dein United States Magistrate Judge.
plaintiff, James Whitley, was working as a
Longshoreman/Harbor Worker at the Conley Terminal located in
South Boston, Massachusetts on August 31, 2012 when a
forklift truck on which he was riding flipped over and
crushed his leg. He brought this products liability claim
against the purported manufacturer of the forklift, who he
believed to be Linde Material Handling North America
Corporation. According to the defendant, Linde Material
Handling North America Corporation is now known as Kion North
America Corp. (“Kion”), and the plaintiff amended
his complaint accordingly to name Kion as the sole defendant.
The forklift has been destroyed, and there is little
identifying information available about the equipment.
However, a photograph of the forklift clearly shows that it
bears the “Linde” logo.
matter is presently before the court on Kion's motion for
summary judgment. Docket No. 20. Therein, Kion contends that
it did not design, manufacture, distribute or sell the
forklift truck at issue in this action. Kion has submitted
the affidavits of its cost accountant, Jamie Barnaby, and its
General Product Manager, Mark Roessler, in support of its
contention. These affidavits refer to Kion and its
“predecessor companies” but do not identify those
companies. Moreover, the affidavits indicate that the
computer system searched by the defendant contains data that
only goes back to 2001.
plaintiff has submitted information from the internet showing
that “Linde Material Handling” is still in
existence and still manufactures forklifts. Moreover, no
other “Linde” entity is identified as a forklift
manufacturer, and there is a great deal of confusion in the
publicly available information concerning the relationships
between the Linde entities and the Kion group of companies.
This court recognizes that the plaintiff has not challenged
Kion's factual assertions directly, or under oath.
Nevertheless, a review of the record leaves the critical
material fact as to the identity of the manufacturer in
dispute. There is no evidence that any entity other than one
for which Kion would be responsible could have manufactured a
forklift bearing the Linde logo that was used in
Massachusetts in 2012. This issue was not addressed in the
affidavits submitted by Kion, despite the fact that the
information would seemingly be within the defendant's
knowledge and control.
burden is on the party moving for summary judgment to show
“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). This court finds that Kion
has not met this burden, and the motion for summary judgment
is DENIED WITHOUT PREJUDICE. Kion may renew its motion if it
can demonstrate that another entity (for which it has no
liability) could have manufactured the forklift with the
Linde logo depicted in the photograph submitted by the
plaintiff. If a renewed motion is not filed within 30 days,
this court will hold a status conference to set a discovery
STATEMENT OF FACTS
plaintiff was working on a forklift truck at the Conley
Terminal in South Boston on August 31, 2012, when the machine
flipped over and crushed his leg. The forklift was owned by
Massport. Massport allegedly refused to allow the equipment
to be photographed or inspected after the incident, and the
forklift was subsequently destroyed. Pl. Opp. (Docket No. 34)
at 2. Massport did provide a serial number for the equipment
(EIX317T00006) and described it as “Linde #3.”
See Kion's Statement of Undisputed Material
Facts ¶ 4. At some point, the plaintiff did obtain a
photograph of the forklift, which bears the logo
“Linde, ” as well as the name
“MIJACK.” Pl. Opp. at 2, Ex. A. According to the
plaintiff, MIJACK was a distributor of the forklift, but
“had no responsibility for design, manufacture or
quality control of the Linde machine involved in this
incident.” Pl. Opp. at 2.
Whitley filed suit against Linde Material Handling North
America Corporation and Kion North America Corporation on
August 27, 2015 in Suffolk Superior Court. SF ¶ 10.
Counsel for the defendants provided proof to the plaintiff
that “Linde Material Handling North America
Corporation” had changed its name to “Kion North
America Corporation” on December 29, 2014, and that the
two companies were, therefore, one in the same. Pl. Opp. at
2-3; Abrams Aff. (Docket No. 37) ¶ 3, Ex. 1. Therefore,
the plaintiff filed an amended complaint, naming Kion as the
only defendant. Pl. Opp. at 2-3. The case was then
transferred to this court on January 5, 2016. The parties
consented to having the case decided by a Magistrate Judge
pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73.
Docket No. 16.
filed its motion for summary judgment on June 8, 2016,
contending that it did not design, manufacture, distribute,
or sell the forklift truck at issue in this
litigation. In support of its motion, Kion filed the
affidavit of Mark Roessler, who had been employed by Kion,
“or its predecessor companies, ” since 1977.
Roessler Aff. (Docket No. 24) ¶ 2. Mr. Roessler attested
that he has been responsible for Sales & Product
Management, and was familiar with every type of equipment
that the company had built or sold during his tenure.
Id. ¶ 3. He also attested that these companies
had not built or sold the forklift depicted in the photograph
provided by the plaintiff, which he identified as a C80/6
having the ability to stack containers up to six high.
Id. ¶¶ 4-5. Moreover, the only similar
machine that the company had sold, a C80/5, which apparently
had the ability to stack containers only up to five high, had
been sold to a company in Canada, and had been taken out of
service “approximately five years ago.”
Id. ¶ 4.
also submitted the affidavit of its cost accountant, Jamie
Barnaby, who had been employed by Kion “or its
predecessor companies, ” since 1998. Barnaby Aff.
(Docket No. 23) ¶ 2. He reviewed the company's
“computer systems that store all the records for every
lift sold by KION NA and its predecessor companies since
April 1, 2001, as well as all records of trucks sold prior to
that date for which we processed a warranty claim after April
1, 2001.” Id. ¶ 3. This review
established that KION had not sold any equipment with the
serial number Massport had identified since 2001, or
processed a warranty on equipment with that serial number
since 2001 even if it had been purchased before then.
Id. ¶¶ 3-4. Similarly, the computer
records contained “no record of any equipment being
registered to the Port of Massachusetts, the alleged owner of
the equipment involved in this case.” Id.
¶ 5. There is no evidence in the record as to how long
forklifts usually remain in use.
opposing Kion's motion for summary judgment, the
plaintiff filed a request pursuant to Fed.R.Civ.P. 56(d) to
take discovery on the issue of the identity of the
manufacturer. Docket No. 25. The court allowed this request,
and the plaintiff obtained written discovery from Kion.
See SF ¶¶ 18, 20. According to Kion, the
plaintiff had the opportunity to pursue additional discovery,
but elected not to do so. See SF ¶¶ 19-21.
It is undisputed that plaintiff did not depose Kion's
affiants, or serve third-party subpoenas on Massport, the
alleged owner of the forklift, or MIJACK, the alleged
distributor of the forklift. See Bishop Aff. (Docket
No. 45-1) ¶ 3.
then renewed its motion for summary judgment, Docket No. 35,
and the plaintiff renewed his opposition. Docket No. 34. In
opposing the motion for summary judgment, the plaintiff wrote
Linde Material Handling is a company that is still in
existence and manufactures the vehicle that is the subject of
Mr. Whitley's complaint. Linde Material Handling has its
own website and it is associated with the Linde Heavy Truck
website. The website indicates that Linde Heavy Truck is a