Chapin v. Great S. Wood Preserving Inc., Civil No. 2012-77

CHAPIN, ET AL., Plaintiffs, v. GREAT SOUTHERN WOOD PRESERVING INCORPORATED, ET AL., Defendants.

Civil No. 2012-77

DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN

May 22, 2016

ATTORNEYS:

Bonnie Prober

Daniel M. Cohen

Cuneo Gilbert & LaDuca, LLP

Washington, DC

Terri L. Griffiths

Lee J. Rohn

Lee J. Rohn and Associates

St. Croix, VI

Jordan S. Cohen

Wicker Smith O'Hara McCoy & Ford

Fort Lauderdale, Fla.

Rhea Lawrence

Rohn & Carpenter

St. Croix, U.S.V.I.

Counsel for Cary Chapin.

Daniel M. Cohen

Cuneo Gilbert & LaDuca, LLP

Washington, DC

Terri L. Griffiths

Lee J. Rohn

Lee J. Rohn and Associates

St. Croix, VI

Rhea Lawrence

Rohn & Carpenter

St. Croix, U.S.V.I.

Counsel for Barbara Douma, Emily J. Bratton, John Baldwin, Dean Baldwin , Harry Eisener, Denise Barbier, Truman Barbier, Jean Cottrell, Stephen Cottrell, Mark Anderson, Conch Villa Condominium Association, Concordia Campgrounds, Inc., Jerry Daly, Carlos Di Blasi, John Fitzgerald, Rune Fremlin, Birgitta Fremlin, Bonita Corbeil.

Terri L. Griffiths

Lee J. Rohn

Lee J. Rohn and Associates

St. Croix, VI

Rhea Lawrence

Rohn & Carpenter

St. Croix, U.S.V.I.

Counsel for Terry R. Whitham, individually and as representative of a class of persons similarly situated, Ann McCrave, Jeffrey J. McCrave, Celso Principaal, Cynthia Sauers, Nancy Nemeth, Jozsef Nemeth, Irene Patton, Richard Hathaway, Nina C. Hahler, Rick Hoy, Susan Hoy, Barbara Jakobsen, Arne Jakobsen, Barbara Jakobsen Avis James, Oscar James, Philip Jones, Marjorie Jones, Dan Near, Rudy Patton, Ed Pieper, Barbara Pieper, Deborah Ramsay, Upper Deck Villas Association, Sharon Schott.

Lee J. Rohn

Lee J. Rohn and Associates

St. Croix, VI

Rhea Lawrence

Rohn & Carpenter

St. Croix, U.S.V.I.

Counsel for Michael Barry, Barbara Barry, S. Donald Sussman, Emicar LLC.

Charles J. LaDuca

Cuneo Gilbert & LaDuca, LLP

Bethesda, MD

Daniel M. Cohen

Cuneo Gilbert & LaDuca, LLP

Washington, DC

Michael James Flannery

Cuneo Gilbert & LaDuca, LLP

St. Louis, MO

Terri L. Griffiths

Lee J. Rohn

Lee J. Rohn and Associates

St. Croix, VI

Rhea Lawrence

Rohn & Carpenter

St. Croix, U.S.V.I.

Counsel for Elisa Adams.

Lee J. Rohn

Lee J. Rohn and Associates

St. Croix, VI

Counsel for Douglas R. Bentorn, Michael L. Kridnik, as trustee of the Miachel Krienik Trust, Barry Devine, Dominic Watson, as trustee of the Rogers Family Trust, Susan Greer-Littlefield, Patricia Mertensen, Elliot C. Hooper, Jeffrey A. Smock, Jay Goldman, Vicky Brown-Goldman, Gloria P. Samuel, Maria Applewhite, Warren Family LLC, Denise Veldman, Burt Veldman, Donald L. Robinson, Molly K. Robinson, Great Caribbean LLC, as assignee of Denise Geary.

Daryl C. Barnes

Sunshine S. Benoit

Bryant, Barnes, Moss & Beckstedt

St. Croix, VI

John Stewart Baker

Lee M. Hollis

Stewart Andrew Kelly

Lightfoot, Franklin & White, LLC

Birmingham, AL

Terri L. Griffiths

Lee J. Rohn and Associates

St. Croix, VI

Counsel for Great Southern Wood Preserving, Incorporated.

Lisa M. Komives

Bolt Nagi PC

St. Thomas, VI

Robert A. Carlson

Lana M. Naghshineh

Ryan M. Charlson

Lee, Hernandez, Landrum, Garofalo and Blake APC

Miami, FL

Terri L. Griffiths

Lee J. Rohn and Associates

St. Croix, VI

Counsel for Putnam Lumber & Export Company.

Lisa M. Komives

Bolt Nagi PC

St. Thomas, VI

Robert A. Carlson

Lana M. Naghshineh

Lee, Hernandez, Landrum, Garofalo and Blake APC

Miami, FL

Terri L. Griffiths

Lee J. Rohn and Associates

St. Croix, VI

Counsel for Putnam Family Properties, Inc.

Alex Moskowitz

Dudley Topper & Feuerzeig

St. Thomas, VI

Counsel for MSI Building Supplies.

Chad C. Messier

Dudley Topper & Feuerzeig

St. Thomas, VI

Counsel for Whitecap Investment Corp., d/b/a Paradise Lumber.

MEMORANDUM OPINION

GÓMEZ, J.

Before the Court is the motion of Great Southern Wood Preserving, Inc. for summary judgment with regard to the claims asserted by Deborah Ramsay.

I. FACTUAL AND PROCEDURAL HISTORY

Great Southern Wood Preserving Inc. ("GSWP") is an Alabama lumber wholesaler. It operates principally in Alabama. In addition to selling wood directly, it also provides chemical and pressure treatments to prevent lumber from decaying.

From in or about 2003 until in or about 2009, GSWP regularly sold treated lumber and provided lumber-treatment services to Putnam Family Properties, Inc., a Florida corporation, which is itself a lumber retailer.¹ Some of this wood was then sold to Whitecap Investment Corporation d/b/a Paradise Lumber ("Whitecap").

Deborah Ramsay ("Ramsay") and the other plaintiffs allegedly purchased "hazardous and defective" lumber from Whitecap or another supplier, MSI Building Supplies ("MSI").

The original complaint in this matter was filed on October 1, 2012. The complaint has since been amended several times. On April 2, 2013, Ramsay was added as a plaintiff in the First Amended Complaint. The current complaint is the Third Amended Complaint. The Third Amended complaint includes six counts. Count One alleges a breach of contract claim against Putnam Family Properties, Inc. and Putnam Lumber & Export Company (collectively, the "Putnam Entities"). Count Two alleges a breach of warranty claim against GSWP and the Putnam Entities. Count Three alleges a negligence claim against GSWP and the Putnam Entities. Count Four alleges a strict liability claim against GSWP and the Putnam Entities. Count Five alleges fraud, intentional misrepresentation, and negligent misrepresentation claims against GSWP and the Putnam Entities. Count Six allege aclaim for violating the Virgin Islands Deceptive Trade Practices Act ("DTPA") against GSWP and the Putnam Entities.²

On November 4, 2015, GSWP filed the instant motion in which it seeks summary judgment on all claims asserted against it by Ramsay. ECF No. 1102. On April 18, 2016, Ramsay filed an untimely opposition to the motion for summary judgment. ECF Nos. 1252, 1253, 1254. GSWP then filed a reply to that opposition. ECF Nos. 1439, 1440.

Thereafter, on May 7, 2016, the Court issued an order which, in relevant part, struck from the record Ramsay's untimely opposition to the instant motion and GSWP's reply to that opposition. ECF No. 1558.

II. DISCUSSION

Summary judgment is appropriate "if the movant shows 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); see also Hersh v. Allen Prods. Co., 789 F.2d 230, 232 (3d Cir. 1986).

The movant has the initial burden of showing there is no genuine issue of material fact, but once this burden is met it shifts to the non-moving party to establish specific facts showing there is a genuine issue for trial. Gans v. Mundy, 762 F.2d 338, 342 (3d Cir. 1985). The non-moving party "may not rest upon mere allegations, general denials, or ... vague statements." Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir.1991). "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., All U.S. 242, 249 (1986).

"[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id. In making this determination, this Court draws all reasonable inferences in favor of the opposing party. See Bd. of Educ. v. Earls, 536 U.S. 822, 850 (2002); see also Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994).

III. ANALYSIS

1. Legal Effect of a Stricken Opposition to a Motion for Summary Judgment

Before addressing GSWP's motion on the merits, the Court will address the legal effect of striking an opposition to a motion for summary judgment. As noted above, when a movant satisfies its initial burden on a motion for summary judgment, the burden generally shifts to the non-movant to show that there is a genuine dispute of material fact or that the movant is otherwise not entitled to judgment as a matter of law. Gans v. Mundy, 762 F.2d 338, 342 (3d Cir. 1985). That legal framework remains in place even where no opposition is filed to a motion for summary judgment. In that case, the Court may grant summary judgment upon finding that the movant satisfied its initial burden. See Anchorage Associates v. Virgin Islands Bd. of Tax Review, 922 F.2d 168, 176 (3d Cir. 1990). Similarly, if an opposition to a motion for summary judgment is filed, but stricken, the Court may grant summary judgment upon finding that the movant satisfied its initial burden. See Davila-Rivera v. Caribbean Refrescos, Inc., 150 F. App'x 3, 6 (1st Cir. 2005)("Because the district court ordered the Second Opposition stricken from the record, CRI's motion for summary judgment was unopposed. However, the district court is 'still obliged to consider the motion on its merits, in light of the record as constituted, in order to determine whether judgment would be legally appropriate.'" (quoting Kelly v. United States, 924 F.2d 355, 358 (1st Cir.1991))). In either event--where no opposition is filed or where the opposition is stricken--the movant does not get an automatic and clear path to summary judgment. See Anchorage Associates, 922 F.2d 168 at 176; Davila-Rivera, 150 F. App'x at 6.

Here, the Court struck Ramsay's opposition to GSWP's motion for summary judgment. See ECF No. 1558. Moreover, the local rules of civil procedure provide, in pertinent part, that:

Failure to respond to a movant's statement of material facts, or a respondent's statement of additional facts, as provided by these Rules may result in a finding that the asserted facts are not disputed for the purposes of summary judgment.

LRCi 56.1(d). Still, the Court may only enter summary judgment in GSWP's favor if GSWP satisfies its initial burden. See Anchorage Associates, 922 F.2d 168 at 176; Davila-Rivera, 150 F. App'x at 6.

2. Merits

i. Count Two: Breach of Warranty

Count Two alleges a breach of warranty claim. GSWP argues that it is entitled to summary judgment on Count Two because: (1) under the Uniform Commercial Code ("UCC"), GSWP did not provide any warranty to Ramsay, and (2) even if the common law...