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Bass v. Olim Kodirov, Procter & Gamble Distributing, LLC

United States District Court, E.D. Tennessee, Chattanooga Division

September 23, 2019

CRYSTINA BASS, CHRISTOPHER A. BASS, MAVIE DENISE YOUNGSON, and TIMOTHY WAYNE YOUNGSON, Plaintiffs,
v.
OLIM KODIROV, PROCTER & GAMBLE DISTRIBUTING, LLC, PROCTER & GAMBLE MANUFACTURING CO., PROCTER & GAMBLE CO., PROCTER & GAMBLE, and LOGISTICS BUDDY TRANSPORTATION, LLC, Defendants,
v.
LOGISTICS BUDDY, LLC, Defendant and Cross-Claimant,
v.
BOBO TRANSPORTATION, INC., Defendant and Cross-Defendant.

          STEGER, JUDGE.

          MEMORANDUM AND ORDER

          REEVES, JUDGE.

         This 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.

         This 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.

         I. P&G Defendants’ Motion for Summary Judgment

         A. Background

         On March 12, 2016, the Bass Plaintiffs[1] 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.

         The 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.

         However, 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.

         The 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.

         In the 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.

         B. Standard of Review

         Summary 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).

         Once 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 genuine ...


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