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The Harris Waste Management Group, Inc. v. Hydratech Industries Fluid Power, Inc.

United States District Court, S.D. Alabama, Southern Division

December 1, 2017

THE HARRIS WASTE MANAGEMENT GROUP, INC., Plaintiff,
v.
HYDRATECH INDUSTRIES FLUID POWER, INC., Defendant.

          ORDER

          WILLIAM H. STEELE UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the defendant's motion for summary judgment. (Doc. 42). The parties have filed briefs and evidentiary materials in support of their respective positions, (Docs. 43, 44, 46, 47), and the motion is ripe for resolution. After careful consideration, the Court concludes the motion is due to be granted in part and denied in part.

         BACKGROUND

         According to the complaint, (Doc. 1), the defendant manufactured and sold to the plaintiff a number of hydraulic cylinders, which the plaintiff incorporated into industrial recycling balers that it sold to end consumers. At least seventeen of the cylinders failed to live up to the express and implied warranties accompanying their sale, and the defendant's efforts at repair and replacement largely failed, such that the warranties' limited remedy failed of its essential purpose. The plaintiff has suffered over $700, 000 in damages in repairing and replacing defective cylinders. The complaint's two counts are for breach of express warranty and breach of implied warranty. The parties agree that Alabama law governs. (Id. at 7; Doc. 43 at 2, 9-11, 13-14).

         DISCUSSION

         Summary judgment should be granted only if “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). The party seeking summary judgment bears “the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The moving party may meet its burden in either of two ways: (1) by “negating an element of the non-moving party's claim”; or (2) by “point[ing] to materials on file that demonstrate that the party bearing the burden of proof at trial will not be able to meet that burden.” Id. “Even after Celotex it is never enough simply to state that the non-moving party cannot meet its burden at trial.” Id.; accord Mullins v. Crowell, 228 F.3d 1305, 1313 (11th Cir. 2000); Sammons v. Taylor, 967 F.2d 1533, 1538 (11th Cir. 1992).

         “When the moving party has the burden of proof at trial, that party must show affirmatively the absence of a genuine issue of material fact: it must support its motion with credible evidence ... that would entitle it to a directed verdict if not controverted at trial. [citation omitted] In other words, the moving party must show that, on all the essential elements of its case on which it bears the burden of proof, no reasonable jury could find for the nonmoving party.” United States v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir. 1991) (en banc) (emphasis in original); accord Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993).

         “If the party moving for summary judgment fails to discharge the initial burden, then the motion must be denied and the court need not consider what, if any, showing the non-movant has made.” Fitzpatrick, 2 F.3d at 1116; accord Mullins, 228 F.3d at 1313; Clark, 929 F.2d at 608.

         “If, however, the movant carries the initial summary judgment burden ..., the responsibility then devolves upon the non-movant to show the existence of a genuine issue of material fact.” Fitzpatrick, 2 F.3d at 1116. “If the nonmoving party fails to make ‘a sufficient showing on an essential element of her case with respect to which she has the burden of proof, ' the moving party is entitled to summary judgment.” Clark, 929 F.2d at 608 (quoting Celotex Corp. v. Catrett, 477 U.S. 317 (1986)) (footnote omitted); see also Fed. R. Civ. P. 56(e)(2) (“If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may … consider the fact undisputed for purposes of the motion ….”).

         In deciding a motion for summary judgment, “[t]he evidence, and all reasonable inferences, must be viewed in the light most favorable to the nonmovant ….” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003). “Therefore, the plaintiff's version of the facts (to the extent supported by the record) controls, though that version can be supplemented by additional material cited by the defendants and not in tension with the plaintiff's version.” Rachel v. City of Mobile, 112 F.Supp.3d 1263, 1274 (S.D. Ala. 2015), aff'd, 633 Fed.Appx. 784 (11th Cir. 2016).

         There is no burden on the Court to identify unreferenced evidence supporting a party's position.[1] Accordingly, the Court limits its review to the exhibits, and to the specific portions of the exhibits, to which the parties have expressly cited. Likewise, “[t]here is no burden upon the district court to distill every potential argument that could be made based upon the materials before it on summary judgment.” Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995); accord Gennusa v. Canova, 748 F.3d 1103, 1116 (11th Cir. 2014). The Court accordingly limits its review to those arguments the parties have expressly advanced.

         I. Implied Warranty.

         The complaint alleges breaches of implied warranties of merchantability under Alabama Code § 7-2-314 and fitness for a particular purpose under Section 7-2-315. (Doc. 1 at 7). The defendant argues that all such implied warranties were effectively disclaimed in accordance with Section 7-2-316.

         With qualifications not implicated here:

[T]o exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that “There are no warranties which extend beyond the description on the face hereof.”

Ala. Code § 7-2-316(2).

         The defendant points to the following provision found within the “General Terms and Conditions of Sale”:

14. EXCEPT AS EXPRESSLY SET FORTH HEREIN, SELLER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE EXPRESSLY DISCLAIMED. CONTENTS OF THE AGREED SPECIFICATION AND ANY EXPRESSLY AGREED PURPOSE DO NOT ...

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