United States District Court, D. New Jersey, Camden Vicinage
May 3, 2005.
HARBOUR COVE MARINE SERVICES, INC., Plaintiff/Counterclaim Defendant,
ELLIS RABINOWITZ, et al., Defendants/Counterclaim Plaintiffs. HARBOUR COVE MARINE SERVICES, INC., Third-Party Plaintiff v. SHRINKFAST MARKETING, et al., Third-Party Defendants.
The opinion of the court was delivered by: ROBERT KUGLER, Magistrate Judge
This matter is before the Court on separate but similar motions
for summary judgment by Third-Party Defendants AEP Industries,
Inc. ("AEP") and Marine Equipment and Supply Co. ("Mesco"). AEP moves for partial summary
judgment on all of the third-party claims brought against it
under the New Jersey Consumer Fraud Act, codified at N.J. Stat.
Ann. § 56:8-2 ("CFA"). Mesco also moves for summary judgment on
the claims against it under the CFA. In addition, Mesco moves for
summary judgment on all claims against it under the New Jersey
Products Liability Act, codified at 2A:58C-1 et seq. ("PLA").
For the reasons set forth below, the Court will (1) grant the
motion for partial summary judgment by AEP; (2) grant Mesco's
motion for summary judgment on the CFA claims; and (3) deny
Mesco's motion for summary judgment on the PLA claims.
This case is about many disputes over who is to blame for a
fire that started at Harbour Cove Marine Services ("HCMS") when
Mike Perry, an HCMS employee, attempted to repair some loose
shrinkwrap on the vessel Forget-Me-Knot. Shrinkwrap is used on
boats to prepare them for winter storage. The process is simple.
In essence, one takes a large roll of shrinkwrap and wraps it
around the boat. The shrinkwrap is sealed by heating the
shrinkwrap with a heat gun so that the shrinkwrap melts onto
itself. Evidenced by the fact that the Court is recounting this
story, Perry was not entirely successful in wrapping the
Forget-Me-Knot. Rather, while Perry was attempting to repair
some loose wrapping by applying a flame to the shrinkwrap of the
Forget-Me-Knot, the shrinkwrap caught fire, leading to
significant damage to the Forget-Me-Knot along with several other vessels.
AEP manufactures the shrinkwrap that caught fire at HCMS. HCMS
bought the shrinkwrap from Mesco, who sells the shrinkwrap under
a Mesco label. Shrinkfast Marketing manufactures the heat gun
that Perry used to seal the shrinkwrap. HCMS bought the heat gun
from Mesco as well. The Court need not delve any further into the
facts of this case because its decisions on the motions before it
are based almost entirely on the burdens of the moving and
nonmoving parties under Federal Rule of Civil Procedure 56.
HCMS instituted this action by filing a complaint seeking a
declaratory judgment, pursuant to 28 U.S.C. § 2201, that, among
other things, HCMS is not liable for damages to any yachts or
boats and that Defendants must indemnify and hold HCMS harmless
for all damages. The original Defendants were several boat
owners, including the owner of the Forget-Me-Knot. The
remaining Defendants from that original group of boat owners are
Ellis Rabinowitz, Edward Grogan, David Rain, William and Nancy
Clementi, and Mike Perry. (hereinafter "the boat owners"). The
boat owners filed third-party claims under the CFA and PLA
against Mesco and AEP, among others. AEP now moves for partial
summary judgment on the CFA claims brought by the boat owners.
Mesco moves for summary judgment on all claims under the PLA and
CFA brought by the boat owners. II. DISCUSSION
The Court's decision is based on the burdens imposed on the
parties by FED. R. CIV. P. 56. Mesco and AEP have met their
burdens with respect to the CFA claims against them by pointing
to a lack of evidence in the record that would support claims
under the CFA. The boat owners have declined to meet their
burdens of demonstrating that there are genuine issues of
material facts on the CFA claims. Mesco has failed, however, to
meet its initial burden on its motion for summary judgment
concerning the PLA claims against it.
Summary judgment is proper "if 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
judgment as a matter of law." FED. R. CIV. P. 56(c). In deciding
whether there is a disputed issue of material fact, a court must
view the facts and all reasonable inferences in a light most
favorable to the nonmoving party. Id. at 250; Anderson v.
Consol. Rail Corp., 297 F.3d 242, 247 (3d Cir. 2002).
The moving party always "bears the initial responsibility of
informing the district 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 a genuine issue of material fact." Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Where the nonmoving party bears the burden of persuasion at trial, however,
"the burden on the moving party may be discharged by `showing'
that is, pointing out to the district court that there is an
absence of evidence to support the nonmoving party's case." Id.
at 325. The non-moving party "may not rest upon the mere
allegations or denials of" its pleadings and must present more
than just "bare assertions, conclusory allegations or suspicions"
to establish the existence of a genuine issue of material of
fact. FED. R. CIV. P. 56(e); Jalil v. Avdel Corp.,
873 F.2d 701, 707 (3d Cir. 1989) (citation omitted). "A party's failure to
make a showing that is `sufficient to establish the existence of
an element essential to that party's case, and on which that
party will bear the burden of proof at trial' mandates the entry
of summary judgment." Watson v. Eastman Kodak Co.,
235 F.3d 851, 857 (3d Cir. 2000) (quoting Celotex, 477 U.S. at 322).
A. Claims Under the PLA
The entire section of Mesco's brief in support of its motion
for summary judgment on the PLA claims reads as follows:
N.J.S. [sic] 2A:58C-9 provides:
a. In any product liability action against a product
seller, the product seller may file an affidavit
certifying the correct identity of the manufacturer
of the product which allegedly caused the injury,
death or damage.
b. Upon filing the affidavit pursuant to subsection
A. of this section, the product seller shall be
relieved of all strict liability claims, subject to
the provisions set forth in subsection d, of this section. Due diligence shall be exercised in
providing the plaintiff with the correct identity of
the manufacturer or manufacturers.
In this case various parties have asserted products
liability claims including the design, manufacture
and warranty of the Shrink fast heatgun and the AEP
shrinkfilm against MESCO. MESCO has identified the
manufacturers of both products in answers to
interrogatories and through discovery. There is no
reasonable basis upon which to keep MESCO in the
case. Pursuant to N.J.S.A. 2A:58C-9 a. and b., all
claims of IICMS, Standard Fire and the boat owners
products liability, including but not limited to the
design, manufacturer and warranty of the products as
against MESCO must be dismissed.
Mesco's Brief in Support of its Motion for Summary Judgment at
Initially, the Court finds that Mesco's attempt to take
advantage of subsections (a) and (b) listed accurately above
is deficient. The only evidence in the record tending to show
that Mesco has identified AEP and Shrinkfast as the manufacturers
of the products at issue is found in Mesco's "Certified Answers"
to Plaintiff's first set of interrogatories. Mesco's answers are
not, however, sufficient to serve as an affidavit under New
Jersey law or the Local Civil Rules. Specifically, the person who
signed the so-called certified answers whose identity is not
provided*fn1 did not state that the answers were provided
based on personal knowledge. An affidavit must be restricted to
statements within the personal knowledge of the affiant. L. CIV.
R. 7.2(a). Statements that are not attributable to the affiant's
personal knowledge must be disregarded. Cannon v. Cherry Hill
Toyota, 190 F.R.D. (D.N.J. 1999). Specific to this case, statements that are not based on personal knowledge are
insufficient to invoke the protections found in N.J. STAT. ANN. §
2A:58C-9. See Claypotch v. Heller, Inc., 823 A.2d 844, 854
(N.J.Super. App. Div. 2003). Because the certification from the
unknown person in this case states only that the answers provide
are "true" but never states whether they are based on personal
knowledge, the Court finds Mesco's attempt to avail itself of the
exculpatory provisions of section 2A:58C-9 deficient.
Leaving this deficiency aside, Mesco's motion fails for another
reason. As a moving party that will not have the burden of proof
at trial, Mesco's burden on summary judgment was to, at least,
demonstrate, or point out to the Court, that the record does not
contain evidence of an essential element of the boat owners'
case. See Celotex, 477 U.S. at 325. Mesco's conclusory
statement that there is no reasonable basis to keep it in the
case, is not sufficient to carry this relatively light burden.
Apparently, Mesco believed that once it identified the respective
manufacturers of the allegedly defective products, it could not
be held liable in this case. But section 2A:58C-9 is not so
simple and the provision in subsection (b) that shields product
sellers such as Mesco from liability states that the relief from
liability is "subject to the provisions set forth in subsection
d." Thus, a party's entitlement to dismissal under subsection (b)
is dependent on the party's not being subject to liability under
the provisions of subsection (d). Subsection (d) provides several
scenarios in which a product seller will be held liable despite
its having identified the original manufacturer. One scenario,
relevant here, in which a seller will remain liable is where the seller "has
exercised some significant control over the design, manufacture,
packaging or labeling of the product relative to the alleged
defect in the product which caused the injury, death or
damage. . . ." N.J. STAT. ANN. § 2A:58-C(d)(1).
Establishing that the provisions of subsection (d) do not apply
is a necessary step for a defendant seeking to take advantage of
the protections of subsection (b). As stated by the appellate
division in Claypotch, "before a retail seller will be relieved
of liability under N.J.S.A. 2A:58C-9, it must be shown to be
truly innocent of responsibility for the alleged defective
product and the injured party must have a viable claim against
the manufacturer." Claypotch, 823 A.2d at 852. Thus, to be
entitled to judgment as a matter of law, pursuant to FED. R. CIV.
P. 56(c), Mesco needed to either present evidence showing that
the provisions of subsection (d) do not apply and that the
manufacturers of the products at issue are available from which
to recover a judgment; or point to a lack of evidence in the
record supporting opposite conclusions.
Mesco chose to do neither. Instead, it simply states that it is
entitled to be dismissed from the action because it has
identified the manufacturers. As can be seen plainly from Mesco's
brief reproduced above, Mesco never mentions evidence, a lack of
evidence, or the record in its moving papers. Mesco decided to
provide a discussion of evidence only after the boat owners
responded to Mesco's brief by pointing to evidence they maintain
creates an issue of fact whether the provisions of subsection (d)
apply. A moving party cannot establish its entitlement to summary judgment
by pointing to evidence or a lack of evidence in a reply brief,
as opposed to a principal brief. Yeager's Fuel, Inc. v.
Pennsylvania Power & Light Co., 22 F.3d 1260, 1273 (3d Cir.
1994) ("In this case, PP & L did not meet its initial burden with
respect to the merits. In its motion, it merely informed the
court that the complaint itself was inadequate; it was not until
it filed its reply brief, to which the Oil Dealers were precluded
from responding, that it raised the argument that the Oil Dealers
could not support their claims with adequate evidence."). Rather,
a reply brief a tool of advocacy not contemplated by the Rules
of Civil Procedure is made available for the limited purpose of
responding to the nonmoving party's arguments or reinforcing the
moving party's original position. See Bayer AG v. Schein
Pharmaceutical, Inc., 129 F. Supp. 2d 705, 716 (D.N.J. 2001)
("It is axiomatic that reply briefs should respond to the
respondent's arguments or explain a position in the initial brief
that the respondent has refuted. . . . The rationale for this
rule is self-evident-because the local rules do not permit
sur-reply briefs, see L.Civ.R. 7.1(d), a party opposing summary
judgment has no opportunity to respond to newly minted arguments
contained in reply briefs.") (citations and internal quotation
marks omitted); see also Cia. Petrolera Caribe, Inc. v. Arco
Caribbean, Inc., 754 F.2d 404, 410 (1st Cir. 1985) (explaining
that district court was presented two options when it received a
reply brief raising new grounds for summary judgment: "it could
strike the brief or grant plaintiff as the nonmoving party the
opportunity to respond to it."). Because Mesco did not carry its initial burden of pointing to a
lack of evidence in the record supporting the claims against it,
its motion for summary judgment must be denied with respect to
the claims brought pursuant to the PLA.
B. Consumer Fraud Act Claims
With respect to the boat owners' claims under the CFA, Mesco
and AEP have met their burdens on summary judgment. Specifically,
Mesco argues "[t]he extensive discovery completed by the parties
belies the vague accusations of fraud raised in the initial
pleadings. . . . The defendants can point to no conduct on the
part of MESCO which rises to the level of willful and wanton
conduct which would justify the imposition of treble and/or
punitive damages." AEP sets forth this identical statement
replacing "MESCO" with AEP and adds, "[d]efendants cannot
establish by clear and convincing evidence any substantial
aggravating factors evidencing unconscionable conduct by AEP."
Though veiled, these references to the inadequacy of the record
after discovery to support the claims of fraud are sufficient to
carry the burdens of AEP and Mesco on summary judgment.
The boat owners have declined to meet their burdens as the
nonmoving parties under Fed.R.Civ.P. 56(e). Specifically, the
boat owners stated in their brief in opposition to Mesco's motion
that they will not oppose Mesco's motion regarding the CFA
claims; and the boat owners simply did not respond to AEP's
motion. The Court will, therefore, enter judgment in favor of AEP and Mesco on the
claims brought against them under the CFA. See FED. R. CIV. P.
56(c) ("If the adverse party does not so respond, summary
judgment, if appropriate, shall be entered against the adverse
For the reasons stated in the Opinion above, the Court will
grant the motion for partial summary judgment by AEP; grant the
motion for summary judgment by Mesco as it pertains to the claims
under the CFA; and deny the motion for summary judgment by Mesco
as it pertains to the claims under the PLA. An Order will follow.