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At a Glance:
Acosta v. Suomy Srl.
September 6, 2016
Unpublished Opinion

Acosta v. Suomy Srl.

United States District Court, S.D. Texas, Corpus Christi Division.

Diana ACOSTA, et al., Plaintiffs,


SUOMY S.R.L.; Suomy S.p.A.; and Van Leeuwen Enterprises, Inc., Defendants.

CIVIL NO. 2:14-CV-455


Signed 09/06/2016

Attorneys & Firms

David Tarrant Bright, Sico, White, Hoelscher, Harris & Braugh, LLP, John Timblin Flood, Flood & Flood, Corpus Christi, TX, for Plaintiffs.

F. Van Huseman, Huseman & Stewart, PLLC, Corpus Christi, TX, Andrew A. Braun, Gieger Laborde et al., New Orleans, LA, Brendan P. Doherty, Margaret Virginia Glass, Geiger Laborde Laperouse LLC, Houston, TX, for Defendants.

Suomy S.P.A., pro se.


Hilda G. Tagle, Senior United States District Judge

*1 The Court has before it Defendant Van Leeuwen Enterprises, Inc.’s (“Van Leeuwen”) motion for summary judgment, Dkt. No. 75; Plaintiffs’ response, Dkt. No. 77; and Van Leeuwen’s reply, Dkt. No. 78. Van Leeuwen also moves for leave to file a crossclaim against Defendant Suomy, S.p.A., Dkt. No. 72. For the reasons that follow, the Court grants both motions.

I. Background

This case stems from a motorcycle accident that allegedly occurred in Nueces County, Texas on October 24, 2012. Pls.’ 1st Am. Orig. Pet. ¶¶ 4.1–4.2, Dkt. No. 1 Ex. 17. Plaintiffs claim that defects in a Suomy Airtrix motorcycle helmet (“the helmet”) worn by decedent Brian Barrera (“Barrera”) “were a producing cause of [his] injuries and death.” Id. ¶ 4.6.

Plaintiffs named ten defendants in their First Amended Original Petition. Pls.’ 1st Am. Orig. Pet. ¶¶ 3.3–3.12. Plaintiffs plead that Defendants designed, marketed, manufactured, distributed, sold, and placed Suomy Airtrix helmets into the stream of commerce. Id. ¶¶ 5.1–5.2. All but two defendants have been dismissed. See Dkt. No. 63 at 1; Dkt. No. 39 at 2 (dismissing subject to tolling agreement reached by Plaintiffs and respective defendants); Dkt. No. 47 at 6.

Defendant Suomy, S.p.A. (“Suomy”), an Italian corporation, answered Plaintiffs’ amended petition on March 26, 2016, Dkt. No. 33. This Court granted Suomy’s counsel leave to withdraw on January 15, 2016. Dkt. No. 67 at 2. No attorney has since appeared on Suomy’s behalf.

Unlike Suomy, Van Leeuwen, the other remaining defendant, continues to litigate this case. It has filed a motion for summary judgment seeking dismissal of plaintiffs’ claims against it. Dkt. No. 75. Van Leeuwen separately moves for leave to file a crossclaim against Suomy, Dkt. No. 72.

II. Summary Judgment

Section 82.003(a) of the Texas Civil Practice & Remedies Code provides that “A seller that did not manufacture a product is not liable for harm caused to the claimant by that product unless the claimant proves” one or more of seven listed exceptions. Tex. Civ. Prac. & Rem. Code § 82.003 (West 2016). Plaintiffs do not argue in their response that Van Leeuwen’s evidence is insufficient to carry its initial burden at summary judgment. Nor do Plaintiffs contend that they have produced sufficient evidence to create a fact issue as to any of the enumerated exceptions to § 82.003(a).1 Instead, Plaintiffs argue that the undisputed evidence of Van Leeuwen’s involvement in the helmet’s importation creates a fact dispute over whether Van Leeuwen manufactured the helmet within the meaning of § 82003(a). See § 82.003(a) (applying only to “seller that did not manufacture” a product). In support of their position, Plaintiffs refer the court to the National Traffic and Motor Vehicle Safety Act (the “Vehicle Safety Act”), 49 U.S.C. § 30102(a)(5)(B); The Consumer Products Safety Act (“Safety Act”), 15 U.S.C. §§ 2051–2089; and regulatory pronouncements by federal agencies promulgated pursuant to those statutes. Plaintiffs assert that those authorities show that “Van Leuuwen is a manufacturer under United States law.” Dkt. No. 77 at 6; accord id. at 7, 13. Applying Texas law to this diversity case, the Court concludes that based on the federal authorities Plaintiffs cite the Texas Supreme Court would not likely hold that there is a fact dispute over whether Van Leeuwen manufactured the helmet at issue here within the meaning of § 82.003(a).2

A. Summary Judgment Standard

*2 “Summary judgment is appropriate where the competent summary judgment evidence demonstrates that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008) (citing Bolton v. City of Dallas, 472 F.3d 261, 263 (5th Cir. 2006)); accord Fed. R. Civ. P. 56(a). “A genuine issue of material fact exists when the evidence is such that a reasonable jury could return a verdict for the non-movant.” Piazza’s Seafood World, LLC v. Odom, 448 F.3d 744, 752 (5th Cir. 2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The Court must view all evidence in the light most favorable to the non-moving party at summary judgment. Brumfield, 551 F.3d at 326 (citing Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986)); Piazza’s Seafood World, 448 F.3d at 752 (citation omitted); Lockett v. Wal-Mart Stores, Inc., 337 F. Supp. 2d 887, 891 (E.D. Tex. 2004) (citation omitted). Factual controversies must be resolved in favor of the non-movant, “but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc, per curiam).

The party moving for summary judgment bears the “burden of showing this Court that summary judgment is appropriate.” Brumfield, 551 F.3d at 326 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The burden of production a party must initially carry depends upon the allocation of the burden of proof at trial. See Shanze Enters., Inc. v. Am. Cas. Co. of Reading, 150 F. Supp. 3d 771, 776 (N.D. Tex. Dec. 15, 2015) (“Each party’s summary judgment burden depends on whether it is addressing a claim or defense for which it will have the burden of proof at trial.”). “[I]f the movant bears the burden of proof on an issue, either because he is the plaintiff or as a defendant he is asserting an affirmative defense, he must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in his favor.” Tesoros Trading Co. v. Tesoros Misticos, Inc., 10 F. Supp. 3d 701, 709 (N.D. Tex. 2014) (quoting Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986)) (emphasis in Fontenot); accord Shanze Enters., Inc., 150 at 776. On the other hand, when the nonmovant will bear the burden of proof at trial, the movant may discharge its initial burden at summary judgment by “merely point[ing] to the absence of evidence and thereby shift to the non-movant the burden of demonstrating by competent summary judgment proof that there is an issue of material fact warranting trial.” Transam. Ins. Co. v. Avenell, 66 F.3d 715, 718–19 (5th Cir. 1995) (per curiam); see Celotex, 477 U.S. at 323–25. Once the party seeking summary judgment has discharged its initial burden, the nonmovant must come forward with specific evidence to show that there is a genuine issue of fact. Lockett, 337 F. Supp. 2d at 891; see Ashe v. Corley, 992 F.2d 540, 543 (5th Cir. 1993). The non-movant may not merely rely on conclusory allegations or the pleadings. Lockett, 337 F. Supp. 2d at 891. Rather, it must cite specific facts identifying a genuine issue to be tried in order to avoid summary judgment. See Fed. R. Civ. P. 56(c); Piazza’s Seafood World, 448 F.3d at 752; Lockett, 337 F. Supp. 2d at 891. “Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party’s opposition to summary judgment.” Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915–16 & n.7 (5th Cir. 1992)); accord Fed. R. Civ. P. 56(c)(3) (“The court need consider only the cited materials, but it may consider other materials in the record.”). Thus, once it is shown that a genuine issue of material fact does not exist, “[s]ummary judgment is appropriate ... if the non-movant ‘fails to make a showing sufficient to establish the existence of an element essential to that party’s case.’ ” Arbaugh v. Y&H Corp., 380 F.3d 219, 222–23 (5th Cir. 2004) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).

B. Undisputed Facts

*3 In support of its motion for summary judgment, Van Leeuwen submits three photographs, Dkt. No. 75 Ex. A, B, E; Suomy’s answers to Van Leeuwen’s first set of interrogatories, id. Ex. C; and a transcript of the deposition taken February 18, 2016, of its corporate representative, Curt Van Leeuwen (“C. Van Leeuwen”), id. Ex. D. Plaintiffs attach the entire transcript of C. Van Leeuwen’s deposition to their response. Dkt. No. 77-3 Ex. A, Attach. 1.

Plaintiffs and Van Leeuwen emphasize different aspects of C. Van Leeuwen’s testimony and the other summary-judgment evidence, but neither disputes Van Leeuwen’s factual role in the design, manufacture, and distribution of the helmet worn by Barrera. Presumably using the words in their ordinary sense, Suomy affirmed in its answers to interrogatories that it “designed and manufactured the helmet” at issue. Dkt. No. 75 Ex. C at 6. A photograph of what Van Leeuwen represents to be the helmet’s instruction manual includes the word “Suomy” on what appears to be its title page but makes no mention of Van Leeuwen. See Dkt. No. 75 Ex. E. Plaintiffs do not challenge Van Leeuwen’s implicit assertion that a reasonable fact finder could infer from that photograph that Suomy, but not Van Leeuwen, held itself out as having designed and assembled the helmet. See id. Unchallenged portions of C. Van Leeuwen’s deposition, Dkt. No. 75 Ex. D, Dkt. No. 77-3 Ex. A, Attach. 1, further clarify Van Leeuwen’s role. C. Van Leeuwen testified that Van Leeuwen’s role was limited to importing helmets only; he understood that Suomy designed and manufactured the helmets Van Leeuwen imports. Ibid. at 28:3–14, 30:25–31:4. Nor, on this record, does Van Leeuwen open the helmets’ boxes or modify them after receipt. See ibid. at 100:3–16 (testifying that boxes are not opened for any reason); accord ibid. at 91:15–21 (giving same testimony in substance and stating that Van Leeuwen did not “alter or modify this helmet in any way once it was received”). Van Leeuwen’s role is undisputedly limited to processing boxes and forwarding them to others. See ibid. at 82:10–11.

Plaintiffs do not argue that Van Leeuwen had a greater role in the design, manufacture, or distribution of the helmet in question. On the contrary, Plaintiffs state in their response that “[i]t is undisputed that Van Leeuwen Enterprises, Inc. is an importer of foreign products, including Suomy helmets, which Van Leeuwen imports from Italy, Taiwan, and Jakarta.” Dkt. No. 77 at 3. Instead, Plaintiffs highlight Van Leeuwen’s admissions of what it does not do. Specifically, Plaintiffs cite portions of C. Van Leeuwen’s deposition in which he answers questions about his expectations of a “competent manufacturer” of helmets. C. Van Leeuwen Dep. 75:16–19; see Resp. to Mot. Summ. J., Dkt. No. 77. When asked whether “Van Leeuwen do[es] any quality control regarding the helmets that it imports into the United States,” for instance, C. Van Leeuwen responded “[w]e do not ... that’s the manufacturer’s responsibility.” C. Van Leeuwen Dep. at 70:5–9; see ibid. 81:14–82:1, 82:6–11 (admitting that Van Leeuwen does not conduct visual testing, impact testing, disassemble helmets, or send them to a laboratory for tests and stating “we’re just a distributor. Boxes in, boxes out”). Accordingly, Plaintiffs argue that a genuine factual dispute exists over whether Van Leeuwen breached the duty of care owed by a manufacturer. See Resp. to Mot. Summ. J. 9–10, Dkt. No. 77. With the undisputed facts of Van Leeuwen’s involvement in the design, assembly, and distribution of the helmet not in dispute, the Court turns to the legal question of whether Van Leeuwen can be held liable as a manufacturer under the governing law.

C. Texas’s Substantive Law Applies in this Diversity Case.

*4 The Court begins by determining the relationship between Texas law and the federal law Plaintiffs cite. Van Leeuwen relied solely on the grant of diversity jurisdiction in 28 U.S.C. § 1332(a) to remove this action to this Court. Notice Removal 3, Dkt. No. 1. No party has proposed an alternate basis for this Court’s exercise of jurisdiction. In either amended petition, Plaintiffs plead no claims under the federal statutes they cite in their response to Van Leeuwen’s motion for summary judgment. See Dkt. No. 1 Ex. 1-17. Accordingly, Plaintiffs plead state-law claims only, and this Court’s jurisdiction is founded solely on diversity of citizenship under 28 U.S.C. § 1332(a).

Under the Erie3 doctrine, this Court applies state substantive law and federal procedural law in a diversity case. See, e.g., Ferguson v. Bank of N.Y. Mellon Corp., 802 F.3d 777, 800 (5th Cir. 2015) (“Because jurisdiction is based on diversity of citizenship, ‘Texas substantive law and federal procedural law apply to these state-law claims.’ ”) (quoting Harris Cty. v. MERSCORP Inc., 791 F.3d 545, 551 (5th Cir. 2015)); Weiser-Brown Op’g Co. v. St. Paul Surplus Lines Ins. Co., 801 F.3d 512, 517 (5th Cir. 2015) (“In this diversity case, this court applies state substantive law, but federal procedural law.”) (citing Symetra Life Ins. Co. v. Rapid Settlements, Ltd., 775 F.3d 242, 248 (5th Cir. 2014)). When applying Texas substantive law, this Court “must interpret Texas’s statutes the way the Texas Supreme Court would.” Weiser-Brown Op’g Co., 801 F.3d at 518 (citing F.D.I.C. v. Shaid, 142 F.3d 260, 261 (5th Cir. 1998)); see Health Care Serv. Corp. v. Methodist Hosps. of Dallas, 814 F.3d 242 (5th Cir. 2016) (“When interpreting a Texas statute, we follow “the same rules of construction that a Texas court would apply ....”). Hence, as Plaintiffs mount no constitutional challenge to a Texas statute, determining the relationship between the federal statutes cited by Plaintiffs to Chapter 82 of the Texas Civil Practice & Remedies Code requires the court to apply only Texas law. See Mendiola v. Estelle, 635 F.2d 487, 489 (5th Cir. Unit A 1981) (“Absent a claim that the statutes or their application are contrary to the federal Constitution, the relationship between section 12.42 and article 4476-15 is purely a question of state law. State courts are the ultimate expositors of their own states’ laws ....”). Thus, the Erie doctrine compels this Court to ask whether the Texas Supreme Court would hold Van Leeuwen manufactured the helmet within the meaning of § 82.003(a) on the undisputed facts here and in light of the federal authorities Plaintiffs cite. See Price v. City of San Antonio, 431 F.3d 890, 892 (5th Cir. 2004) (“To construe a Texas statute, we look to how Texas’s highest court would resolve the issue.” (citing C&H Nationwide, Inc. v. N.W. Bank Tex. NA, 208 F.3d 490, 495 (5th Cir. 2000))).

Neither Plaintiffs nor Van Leeuwen cite a Texas Supreme Court case answering the precise question under § 82.003(a) presented here, and the Court has located none. Where a state’s highest court has not spoken on the issue, this Court must hazard an “Erie guess” on the question. See Am. Int’l Specialty Lines Ins. Co. v. Rentech Steel LLC, Hodges v. Mack Trucks, Inc.,



Because the facts surrounding Van Leeuwen’s conduct regarding the helmet Barrera allegedly wore are undisputed, the Court need not decide who bears the burden to prove initially that Van Leeuwen is a “seller that did not manufacture” the product, § 82.003(a). See Transcont’l Ins. Co. v. Briggs Equip. Trust, 321 S.W.3d 685, 701 (Tex. App.–Hous. [14th Dist.] 2010) (“presum[ing] for the sake of argument that, .... [the putative seller] first must show that it is a “seller” to take advantage of section 82.003”); see also Dennis v. Giles Group, Inc., No. 04-07-00280-CV, 2008 WL 183062, at *7 (Tex. App.–San Antonio Jan. 23, 2008) (“Because we decide that Dennis met his burden of proof for defending the motion for summary judgment under section 82.003(a)(7)(B), we need not address his statutory construction concerns.”). Nor need the Court allocate the burden of proof on the exceptions enumerated in § 82.003(a) for the same reason and because Plaintiffs do not invoke any of those exceptions. Compare Fields v. Klatt Hardware & Lumber, Inc., 374 S.W.3d 543, 545 & n.1 (Tex. App.–San Antonio 2012) (stating that purported nonmanufacturing seller “ultimately had the burden of proof” at summary judgment under § 82.003(a)(7)(B)), with Diamond H. Recognition LP v. King of Fans, Inc., 589 F. Supp. 2d 772, 776 (N.D. Tex. 2008) (collecting cases and characterizing § 82.003(a) as “a defensive device that provides a general rule of no liability unless the plaintiff can prove facts invoking an exception to the rule”); Gonzalez v. Reed-Joseph Int’l Co., Civ. A. NO. 4:11–cv–01094, 2013 WL 1578475, at *8 (S.D. Tex. Apr. 11, 2013) (holding at summary judgment that “Section 82.003 clearly places the burden of proof upon a plaintiff to establish one of the exceptions to nonliability; it is not an affirmative defense” (quoting Gonzalez v. Estes, Inc., No. SA–10–CA–0038–XR, 2010 WL 610778 (W.D. Tex. Feb. 19, 2010))).


Plaintiffs make no effort to show “that [Suomy] is .... not subject to the jurisdiction of the court.” Tex. Civ. Prac. & Rem. Code § 82.003(a)(7)(B). “Usually a party waives personal jurisdiction by failing to raise the issue when filing a responsive pleading or making a general appearance.” Adams v. Unione Mediterranea Di Sicurta, 220 F.3d 659, 667 (5th Cir. 2000) (citing Fed. R. Civ. P. 12(h)). Two defendants with the word “Suomy” in their names filed separate motions to dismiss for lack of personal jurisdiction in this action. Dkt. Nos. 6, 28. The Court denied Defendant Suomy America, Inc.’s motion as moot after Plaintiffs agreed to dismiss it and certain other defendants subject to a tolling agreement. See Order 2, Apr. 13, 2015, Dkt. No. 39. The Court dismissed Defendant Suomy Moto Sport, S.r.L., for lack of subject-matter jurisdiction on July 13, 2015. Dkt. No. 47 at 5. Defendant Suomy S.p.A. joined neither motion to dismiss for lack of personal jurisdiction. See Dkt. No. 6 at 1 (bringing motion on behalf of “Suomy America”); Dkt. No. 28 at 1 (moving on behalf of “Suomy Motosport S.r.l.”). Lack of personal jurisdiction does not appear among the 27 affirmative defenses pleaded in Suomy’s answer. See Dkt. No. 33 ¶¶ 43–69. This Court does not resolve the question conclusively, but § 82.003(a)(7)(B) does not facially apply here because Defendant Suomy S.p.A. has apparently waived the defense of lack of personal jurisdiction. See, e.g., S & D Trading Acad., LLC v. AAFIS Inc., Civ. A. No. G-06-739, 2007 WL 3220167, at *5 (S.D. Tex. Oct. 26, 2007) (discussing and applying rule that “the defense of lack of personal jurisdiction is only waived if a party files a Rule 12 motion or an answer without asserting that defense”).


Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).


Additionally, this Court must take Plaintiffs’ failure to respond to Van Leeuwen’s motion for leave to file a crossclaim as “a representation of non-opposition.” S.D. Tex. Civ. R. 7.4.

End of Document