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Kendall Dealership Holdings, LLC v. Warren Distribution, Inc.

United States District Court, D. Alaska

August 12, 2019

KENDALL DEALERSHIP HOLDINGS, LLC, Plaintiff,
v.
WARREN DISTRIBUTION, INC., a Nebraska Corporation, Defendant. WARREN DISTRIBUTION, INC., Third Party Plaintiff,
v.
ELECTRICAL COMPONENTS INTERNATIONAL, INC. and ELECTRICAL COMPONENTS CANADA, INC., Third Party Defendants.

          ORDER

          H. RUSSEL HOLLAND UNITED STATES DISTRICT JUDGE

         Motion for Summary Judgment

         Defendant moves for summary judgment.[1] Third-party defendants join in this motion.[2] Defendant's motion is opposed.[3] Oral argument was requested but is not deemed necessary.

         Facts

         Plaintiff is Kendall Dealership Holdings, LLC. Defendant is Warren Distribution, Inc. Third-party defendants are Electrical Components International, Inc. (ECI) and Electrical Components Canada, Inc. (ECC).

         Plaintiff alleges that it has purchased engine block heaters from defendant since at least 2014.[4] Plaintiff alleges that the engine block heaters it purchased from defendant were “identical to an engine block heater that is the subject of a safety recall in vehicles sold in Canada by Toyota Canada.”[5] Defendant contends that the engine block heaters that are the subject of the recall were manufactured by ECC and are not the same engine block heaters it sold to plaintiff.

         Plaintiff alleges that the engine block heaters it purchased from defendant “were improperly manufactured due to either [a] short circuit in the electrical cord of the engine block heater and/or too much wattage produced by the engine block heaters.”[6] Plaintiff alleges that “[s]everal vehicles sold by Kendall with the engine block heaters installed have caused a fire as a result of the improperly manufactured engine block heaters.”[7]

         On June 21, 2018, plaintiff commenced this action. Plaintiff asserts breach of contract, UTPA, breach of the implied warranty of merchantability, and breach of the implied warranty of fitness for a particular purpose claims against defendant.

         On October 19, 2018, defendant filed a third-party complaint against ECC and ECI. Defendant alleges that it “purchased Pyroil brand block heaters from ECI, which it then resold to Kendall” and that “the Pyroil block heaters were manufactured by ECC.”[8]Defendant alleges that “[i]f . . . the block heaters manufactured by ECC and sold by ECI are found to be defective, Warren is entitled to be indemnified or reimbursed by them for any damages or judgment it is required to pay Kendall.”[9]

         Defendant now moves for summary judgment on all of plaintiff's claims, arguing that plaintiff has no evidence that the engine block heaters it purchased from defendant were defective. Third-party defendants join in defendant's motion.[10]

         Discussion

         Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The initial burden is on the moving party to show that there is an absence of genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party meets its initial burden, then the non-moving party must set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). In deciding a motion for summary judgment, the court views the evidence of the non-movant in the light most favorable to that party, and all justifiable inferences are also to be drawn in its favor. Id. at 255.

         Defendant contends, and plaintiff does not dispute, that in order for plaintiff to prevail on any of its claims it will have to prove that the engine block heaters that it purchased from defendant were defective. But, defendant argues that plaintiff has no evidence that will prove that the engine block heaters in question were defective.

         First, defendant argues that plaintiff has no evidence that shows that the engine block heaters it purchased were identical to the recalled Canadian block heaters. Defendant asked plaintiff to “produce all documents showing that the engine block heater(s) at issue in this case are identical to the engine block heater that was subject to the block heater recall relating to Toyotas sold in Canada.”[11] Plaintiff responded that “[d]ocuments responsive to this request[] are not within the possession, custody, or control of [p]laintiff.”[12] Because plaintiff produced no evidence in response to this interrogatory, defendant contends that plaintiff has no evidence on this issue.

         Plaintiff disagrees and cites to its responses to ECC & ECI's first set of discovery requests. Although “[a] plaintiff's discovery responses generally are not proper ‘evidence' to establish a genuine dispute of material fact[, ]” they can be when they are “are verified, signed under penalty of perjury and based in part on . . . personal knowledge.” Griffin v. Johnson, Case No. 1:13-cv-01599-LJO-BAM (PC), 2017 WL 4012817, at *2 (E.D. Cal. Sept. 11, 2017). Plaintiff's responses were verified by Dave Blewett, plaintiff's president, and some of the statements in the responses are plainly based on Blewett's personal knowledge. Thus, the court can consider plaintiff's discovery responses in determining whether plaintiff has come forward with evidence to show that there are genuine issues of material fact as to whether the engine block heaters were defective.

         In its responses to ECI and ECC's interrogatories, plaintiff states that “Jimmy O'Connor, the National Accounts Manager with Warren Distribution, told Dave Blewett, President of Kendall, that the engine block heaters sold to Kendall were the same engine block heaters that were subject to the Canadian recall.”[13] Plaintiff also states that ‚ÄúDave Blewett spoke with Jeff Harbaugh and Steve Haag with Toyota USA who spoke with representatives of Toyota ...


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