United States District Court, E.D. Tennessee, Chattanooga Division
CRYSTINA BASS, CHRISTOPHER A. BASS, MAVIE DENISE YOUNGSON, and TIMOTHY WAYNE YOUNGSON, Plaintiffs,
OLIM KODIROV, PROCTER & GAMBLE DISTRIBUTING, LLC, PROCTER & GAMBLE MANUFACTURING CO., PROCTER & GAMBLE CO., PROCTER & GAMBLE, and LOGISTICS BUDDY TRANSPORTATION, LLC, Defendants,
LOGISTICS BUDDY, LLC, Defendant and Cross-Claimant,
BOBO TRANSPORTATION, INC., Defendant and Cross-Defendant.
MEMORANDUM AND ORDER
case concerns liability for a motor vehicle collision
involving a tractor-trailer transporting batteries.
Specifically, Plaintiffs Mavie Denise Youngson and Timothy
Wayne Youngson (the “Youngson Plaintiffs”) and
Plaintiffs Crystina Bass and Christopher A. Bass (the
“Bass Plaintiffs”) allege that their respective
vehicles were struck by a tractor-trailer negligently
operated by Defendant Olim Kodirov in the employ of
Defendants Bobo Transportation, Inc., Logistics Buddy, LLC,
and Logistics Buddy Transportation, LLC on behalf of
Defendants Procter & Gamble Distributing, LLC, Procter
& Gamble Manufacturing Co., Procter & Gamble Co.,
Procter & Gamble (collectively, the “P&G
Defendants”), through various contractual
relationships. Further, the Plaintiffs also allege negligence
on various grounds by the other Defendants.
matter comes before the Court on four motions: a motion for
summary judgment filed by the P&G Defendants [D. 155;
1:17-CV-69, D. 150]; the Bass Plaintiffs’ motion for a
separate trial from the Youngson Plaintiffs [D. 197;
1:17-CV-69, D. 194]; the Bass Plaintiffs’ motion
requesting a status conference and/or pretrial conference [D.
203; 1:17-CV-69, D. 200]; and Defendant Kodirov and Defendant
Bobo Transportation, Inc.’s joint motion to amend the
scheduling order [D. 209; 1:17-CV-69, D. 206]. The Court will
first address the summary judgment motion, followed by the
motions for a separate trial, for a status conference, and
for an amendment to the scheduling order.
P&G Defendants’ Motion for Summary
March 12, 2016, the Bass Plaintiffs were driving eastbound on
I-24 in Marion County when their vehicle was struck by a
tractor-trailer, which was also driving eastbound. As a
result of the collision, the Bass Plaintiffs have brought
this suit for damages. The tractor-trailer involved in the
collision was transporting a load of Duracell batteries.
transportation of this load of batteries was in fulfillment
of a set of logistics agreements dating from September 1,
2015. The Gillette Company (“Gillette”), a
subsidiary of The Procter & Gamble Company and
then-parent of Duracell, entered into a Master Logistics
Services Agreement (“MLSA”) with transportation
broker Exel, Inc. (“Exel”). In accordance with
the MLSA on that same day, Gillette and Exel executed a
Supplemental Logistics Agreement (“Supplemental
Agreement”), which included the transportation of the
load that is the subject of this lawsuit.
The Procter & Gamble Company and The Duracell Company
entered into an arrangement that sold off the Duracell
business through the General Assignment and Bill of Sale
Agreement (“Bill of Sale”) that was “made
and delivered” on February 29, 2016. The Bill of Sale
was pursuant to an agreement (“Transaction
Agreement”), dated November 13, 2014, between The
Procter & Gamble Company, Berkshire Hathaway Inc.
(“Berkshire Hathaway”), and PhoenixCo, Inc.,
which is a predecessor entity to Duracell. In Paragraph 2 of
the Bill of Sale, The Procter & Gamble Company agreed to
“sell, assign, transfer, convey and deliver
to [The Duracell Company] . . . in accordance with the
Transaction Agreement, all . . . right, title and interest in
and to the Acquired Assets.” However, pursuant to
Paragraph 3 of the Bill of Sale, “Acquired Assets shall
not include, and [The Duracell Company] shall not purchase,
acquire or otherwise obtain, any right, title or interest in,
to or under any Excluded Asset.” Though the term
“Acquired Asset” is not defined in the Bill of
Sale, under Paragraph 1 of the Bill of Sale,
“[c]apitalized terms used herein and not defined have
the meanings given to such terms in the Transaction
Agreement.” Section 1.05(a) of the Transaction
Agreement, states that, “‘Acquired Assets’
means all Assets owned or held by [The Procter & Gamble
Company] or any of its Subsidiaries as of the time of the
Closing . . . and primarily used or held for primary use in
the [Duracell] Business.” Further, under Section
1.05(v), “Acquired Assets” include “all
interests, rights, claims and benefits of [The Procter &
Gamble Company] . . . pursuant to, and associated with, all
[Duracell] Contracts, other than To-Be-Delivered [Duracell]
Material Contracts that [Berkshire Hathaway] declines to have
[The Duracell Company] and its Subsidiaries assume in
accordance with notice given to [The Procter & Gamble
Company] pursuant to Section 4.15(c)” of the
Transaction Agreement. The Procter & Gamble Company
received no notice that Berkshire Hathaway declined to have
The Duracell Company assume the Logistics Agreements involved
in this lawsuit.
signature page of the Bill of Sale contains signatures of Ken
Patel, Vice President and General Counsel for The Procter
& Gamble Company, and Hatsuki Miyata, Vice President and
Assistance Secretary of The Duracell Company, who
“executed” the Bill of Sale as of February 29,
2016. According to Paragraph 2 of the Bill of Sale,
“[s]ubject to Section 1.08 of the Transaction
Agreement, ” the Bill of Sale “shall be
deemed” to convey the Acquired Assets “effective
upon receipt of the Consent of the third party thereto after
the Closing.” However, Paragraph 6 of the Bill of Sale
states that “[t]his Bill of Sale and the transactions
contemplated hereby will become effective immediately prior
to the Closing.” Despite being defined terms, neither
“Consent” nor “Closing” are defined
in the Bill of Sale or in the portion of the Transaction
Agreement that is before the Court.
P&G Defendants’ motion for summary judgment, the
P&G Defendants assert that the Bill of Sale assigned the
Logistics Agreements involved in this lawsuit prior to the
date of the collision, transferring any and all potential
liability in this suit to The Duracell Company. The Bass
Plaintiffs contend that there is not sufficient evidence to
determine whether the Logistics Agreements were conveyed
prior to the collision.
Standard of Review
judgment under Rule 56 of the Federal Rules of Civil
Procedure is proper “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). The moving party bears the burden of establishing that
no genuine issues of material fact exist. Celotex Corp.
v. Catrett, 477 U.S. 317, 330 n. 2 (1986); Moore v.
Philip Morris Co., Inc., 8 F.3d 335, 339 (6th Cir.
1993). All facts and inferences to be drawn therefrom must be
viewed in the light most favorable to the nonmoving party.
Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986); Burchett v.
Kiefer, 310 F.3d 937, 942 (6th Cir. 2002).
the moving party presents evidence sufficient to support a
motion under Rule 56, the nonmoving party is not entitled to
a trial merely on the basis of allegations. Celotex,
477 U.S. at 317. To establish a genuine issue as to the
existence of a particular element, the nonmoving party must
point to evidence in the record upon which a reasonable
finder of fact could find in its favor. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The