United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT 
STEPHEN J. MURPHY, III UNITED STATES DISTRICT JUDGE
Sally Johnston claims a stepstool collapsed beneath her,
resulting in injury. The stool was manufactured by B & R
Plastics, a subsidiary of Defendant Gilster-Mary Lee
Corporation, so Johnston filed the instant suit. The
Complaint alleges four counts under Michigan law: breach of
implied warranty of merchantability (Count I), negligence in
design and manufacture (Count II), negligence generally
(Count III), and gross negligence (Count IV). Now before the
Court is Defendant's motion for summary judgment. The
Court held a hearing and, for the reasons below, will grant
judgment is proper 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). A fact is material
for purposes of summary judgment if its resolution would
establish or refute an "essential element of a cause
of action or defense asserted by the parties[.]"
Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir.
considering a motion for summary judgment, the Court must
view the facts and draw all inferences in the light most
favorable to the non-moving party. Stiles ex rel. D.S. v.
Grainger Cty., Tenn., 819 F.3d 834, 848 (6th Cir. 2016).
The Court must then determine "whether the evidence
presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must
prevail as a matter of law." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 251-52 (1986). And although
the Court may not make credibility judgments or weigh the
evidence, Moran v. Al Basit LLC, 788 F.3d 201, 204
(6th Cir. 2015), a mere "scintilla" of evidence is
insufficient to survive summary judgment; "there must be
evidence on which the jury could reasonably find for the
plaintiff, " Anderson, 477 U.S. at 252.
Michigan, there are two theories of recovery in
product-liability claims: negligence and implied warranty.
Michels v. Monaco Coach Corp., 298 F.Supp.2d 642,
647 (E.D. Mich. 2003) (citing Manzoni v. Detroit
Coca-Cola Bottling Co., 363 Mich. 235, 241 (1961) and
Spence v. Three Rivers Builders & Masonry Supply,
Inc., 353 Mich. 120, 135 (1958)). Plaintiff alleges both
theories in her complaint.. Although the elements of
Plaintiff's causes of action differ, see Lagalo v.
Allied Corp., 457 Mich. 278, 287, n.11 (1998), there is
a common and necessary thread to both theories: the product
must have actually had a defect, Smith v. E. R. Squibb
& Sons, Inc., 405 Mich. 79, 89 (1979) (explaining
that negligence requires proof "that the defect
was caused by the manufacturer's negligence, whereas
under the warranty theory, plaintiff need only establish that
the defect was attributable to the
manufacturer[.]") (emphasis added); see also Gregory
v. Cincinnati Inc., 450 Mich. 1, 9 (1995)
("Generally, before there can be any continuing
duty-whether it be to warn, repair, or recall-there must be a
defect or an actionable problem at the point of manufacture.
If there is no defect or actionable problem at this point,
then there can be no continuing duty to warn, repair, or
moved for summary judgment on the grounds that Plaintiff has
provided no evidence of a defect-and with good reason.
Defendant sent Plaintiff interrogatories asking her,
pointedly, "[w]hat do you claim to be the defect(s) with
the stool?" ECF 11-5, PgID 119, ¶ 26. She simply
answered, "[a]ll defects to the stool have not yet been
completely determined as discovery is still ongoing."
Id. The next question-which presumed an answer to
the first-asked, "[a]s to each defect identified above .
. . [w]hat evidence do you have that such a defect
exists?" Id., ¶ 27. Plaintiff answered
simply, "Discovery is ongoing. Also, Plaintiff objects
under various discovery rules." Id. at 120.
Plaintiff repeated this answer many more times, to many more
straightforward questions. It bears noting that discovery had
been open for several months by then, and was set to close
the following month. Depositions likewise failed to reveal to
Defendant any proof in support of Plaintiff's claims.
See ECF 11 at 48-52.
response brief devotes only a single paragraph to rebutting
Defendant's claims; the rest is spent arguing that the
Court should permit her more time for discovery under Federal
Rule of Civil Procedure 56(d). Neither argument is
persuasive. The hypothetical terms of Plaintiff's
response ("Defendant may have sold a stool to
Plaintiff that did not have thick enough tabs . . . [and]
[i]t is likely that the design change is the reason that the
Plaintiff's stool collapsed") reveal that Plaintiff
does not have evidence upon which a reasonable jury could
find in her favor. ECF 13, PgID 218. And she has not shown
the necessary "specified reasons" to defer
consideration of the motion or permit her additional
discovery time under Rule 56(d). After a lengthy discovery
period, Plaintiff has no evidence to support her claim-and
evidently never did.
all of this, the Court held a hearing on the motion. There,
counsel for Defendant argued the merits of its brief, laid
out its argument, and again explained that Plaintiff had
still not identified how the stool was defective.
Plaintiff's rejoined only that (1) the stool collapsed,
(2) the stool's design was changed at a later date, and
(3) Plaintiff rested on its brief.
Court will grant Defendant's motion to the extent it
seeks summary judgment but will not impose sanctions at this
time. Federal Rule of Civil Procedure 11(c)(2) requires a
motion for sanctions to be made separately from any other
motion. Defendant asked the Court to impose sanctions within
its motion for summary judgment, so it fails to satisfy Rule
11's requirement. Subsection (3) permits the Court to act
on its own initiative, but empowers the Court only to
"order an attorney, law firm, or party to show cause why
conduct specifically described in the order has not violated
Rule 11(b)." Fed.R.Civ.P. 11(c)(3). Plaintiff's
counsel may very well have filed the lawsuit and subsequent
response brief without believing that its "factual
contentions ha[d] evidentiary support or, if specifically so
identified, [would] likely have evidentiary support after a
reasonable opportunity for further investigation or
discovery[.]" Fed.R.Civ.P. 11(b)(3). But the matter is
not so clear that the Court will demand Plaintiff to show
cause on the matter.
it is hereby ORDERED that Defendant's
Motion for Summary Judgment  is GRANTED.