The opinion of the court was delivered by: Magistrate Judge Lee
Before the Court are: (1) the motion of Defendant, Y. A. Co. Co., Ltd d/b/a Fujistar Shirt System ("Fujistar"), for summary judgment pursuant to Fed. R. Civ. P. 56 [Doc. No. 14] and (2) the motion of Plaintiff, Rachel Gregg d/b/a/ Preferred Cleaners, to amend the complaint under Fed. R. Civ. P. 15 [Doc. No. 25].*fn1 Plaintiff filed an affidavit [Doc. No. 23] and a "further response" in opposition to Fujistar's motion for summary judgment [Doc. No. 24]. Defendant filed a response in opposition to Plaintiff's motion to amend [Doc. No. 27], which, in limited part, also replied to Plaintiff's response to Fujistar's summary judgment motion [id. at 2-3]. Pursuant to this Court's order of April 11, 2007, Plaintiff also filed a proposed amended complaint as a supplement to her motion to amend [Doc. No. 31]. Fujistar filed a further response to Plaintiff's motion to amend, which also addressed its motion for summary judgment [Doc. No. 32]. Defendant Robert E. Nabors ("Nabors") has not responded to either of the pending motions, which are now ripe for review.
For the reasons set forth below, Fujistar's motion for a summary judgment pursuant to Fed. R. Civ. P. 56 [Doc. No. 14] will be GRANTED IN PART and DENIED IN PART as follows. The aspect of Fujistar's motion which seeks a summary judgment on Plaintiff's claims Fujistar breached implied or express warranties under the Tennessee Uniform Commercial Code, Tenn. Code Ann. §§ 47-2-313, et seq., ("TUCC") as the manufacturer or seller to Plaintiff of the shirt machine will be GRANTED and those claims will be DISMISSED WITH PREJUDICE. The aspect of Fujistar's motion which seeks summary judgment on Plaintiff's remaining claims against Fujistar will be DENIED. Also, Plaintiff's motion to amend [Doc. No. 25] will be GRANTED and Plaintiff shall file her amended complaint within ten days of the entry of this order.
Plaintiff alleged both Fujistar and Nabors sold to Plaintiff, who operates a business known as Preferred Cleaners, a Fujistar shirt machine (the "shirt machine") and that the Defendants provided warranties and guarantees on the shirt machine [Doc. No. 1-2 at 1]. Plaintiff asserted the shirt machine never worked properly or complied with the guarantees and warranties provided by Defendants or with warranties provided by law, including fitness for the particular purpose of the machine under the TUCC [id. at 1-2]. Plaintiff seeks compensatory, punitive, and consequential damages, including loss of business profits, interest paid on the loan to purchase the shirt machine, and attorney's fees [id. at 2].
A. The Affidavit of Haddad
Along with its motion for summary judgment, Fujistar submitted the affidavit of Tony Haddad ("Haddad"), who owns Fujistar [Doc. No. 16 at 1, ¶2]. Haddad avers Fujistar sells press machines it purchases from manufacturers, but it does not manufacture machines and it did not manufacture the shirt machine purchased by Plaintiff [id. at 1-2, ¶¶3-6, 8]. Haddad states Fujistar is a dealer and it merely sold the shirt machine, which was eventually purchased by the Plaintiff, "to a company named Widmer Cleaners in Cincinnati, Ohio" [id. at 2, ¶¶7, 9]. Haddad also states:
11. Neither I, nor any other employee or representative of Fujistar, ever spoke with or otherwise contacted any employee, agent or representative of the plaintiff, concerning the machine referenced in the Complaint, before the plaintiff purchased the machine. In fact, I did not know that Mr. Nabors intended to purchase the machine from Widmer Cleaners before he purchased it.
12. Specifically, I have never seen or spoken with Rachel Gregg about the machine referenced in the complaint.
Haddad further states he only had very brief conversations with Richard Strickland ("Strickland"), an employee of Plaintiff, after Plaintiff purchased the machine [id. at 3, ¶13] (emphasis added). Haddad states he "traveled to Chattanooga to train Plaintiff's employees to use the machine after they purchased it," but he never trained Plaintiff's employees because Strickland prevented him from doing so [id. at ¶¶14-15].
The contract between Fujistar and Widmer Cleaners, which is dated July 21, 2001, is attached to Haddad's affidavit [id. at ¶10]. The invoice for the sale of the shirt machine from Fujistar to Widmer Cleaners states in pertinent part:
LIMITATION OF WARRANTIES. All warranties, if any, relating to the equipment sold pursuant to this contract come directly, and in writing, from the manufacturer of the equipment, and not from seller. No statements made by seller, nor any action or inaction by seller, nor any trade custom or course of dealing with seller, shall create any warranty, expressed or implied on the part of the manufacturer. No statement made by the manufacturer, nor any action or inaction taken by the manufacturer, nor any trade custom or course of dealing with the manufacturer, shall create any warranty, express or implied, on the part of the seller. Buyer acknowledges that upon delivery he inspected the equipment and it was in good order and condition. As to the Seller, buyer acknowledges purchase of the equipment is on an "as is" basis with out warranty of any kind, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose, and that any warranties come from the manufacturer. [Doc. No. 16 at 5-6].
B. The Affidavit of Strickland
As part of her response in opposition to Fujistar's motion for summary judgment, Plaintiff has submitted Strickland's affidavit [Doc. No. 23]. Strickland is Plaintiff's son and the operations manager for Preferred Cleaners [id. at 1]. Strickland states he has known Nabors for several years, and, after attending a trade show, he met with Nabors and told him he was interested in both the Fujistar and Sankosha shirt machines [id.]. Strickland states he decided the Fujistar shirt machine was too expensive and "decided that we would probably buy the Sankosha machine" [id.].
Strickland states thereafter he saw an advertisement in American Dry Cleaner magazine, listing the shirt machine for sale [id.]. Strickland called the owner of the shirt machine, who told him Nabors had already purchased the shirt machine several days before [id. at 1-2]. Strickland then telephoned Nabors who told him "the machine was six months old and that [Strickland/Plaintiff] could save money by purchasing that unit and that Fujistar would provide a new warranty on this machine" [id.]. Strickland further avers: to assure myself that there was a new warranty on this machine I called Mr. Tony Haddad of Fujistar. He confirmed the age and the new warranty and assured me that the machine would work as well as a brand new machine. I thought the name of Mr. Haddad's company was Fujistar. . . . I would not have had my mother look at this machine and recommend to her that she purchase it without the warranty from Fujistar who I understood to be the manufacturer. [id.].
In addition, Strickland states when the shirt machine was installed, "Haddad came to Chattanooga to show me how to use the machine," but the "machine never operated correctly" [id. at 2]. Strickland avers "[t]he quality of the shirts that came off the Fujistar machine was so bad" the machine has not been used and has been in storage [id. at 2-3]. Strickland further states that, after it was determined the shirt machine would not work, he called Haddad about the warranty and had several conversations with Haddad [id. at 3]. Strickland avers Nabors informed him "Haddad was not going to do anything about the problems" [id.]. Strickland also states:
I have done everything that I could think of to get the machine to work properly. When we decided to sue, I did not know any name other than Fujistar Shirt Systems. I have read Mr. Haddad's testimony and he indicated that the corporation was 19172 Corporation. I had never heard of that corporation until I read his deposition. I only new [sic] that Fujistar Shirt Systems had given me a warranty on the machine. It is my understanding that our lawyer found Y. A. Co. Co. Ltd. and thought that was the proper defendant which did business as Fujistar Shirt System.
C. Haddad Deposition Testimony
Attached to Plaintiff's "further response" to Fujistar's motion for summary judgment are portions of the transcript of the deposition of Haddad [Doc. No. 24]. In summary, Haddad testified the legal name of his business is 19172 Corporation, he is the sole stockholder, his company does business as Fujistar Shirt System when it buys equipment from various factories to sell, and his ...