United States District Court, D. South Carolina, Charleston Division
ORDER AND OPINION
RICHARD MARK GERGEL, UNITED STATES DISTRICT COURT JUDGE
matter is before the Court on Defendant's unopposed
motion for summary judgment. For the reasons set forth below,
the Court grants the motion.
21, 2015, Plaintiff Brett Cribb was injured while employed by
Fender Mender of Pawleys Island, LLC in Georgetown County,
South Carolina. Plaintiff alleges that an automobile frame
straightener "designed, manufactured, packaged,
produced, sold, and/or distributed" by R.G. Grabber,
Inc. was purchased by Plaintiffs employer, Fender Mender, and
was in "an unreasonably dangerous and defective
condition; the foot control device being located under and
inline with the rack holding an automobile in place."
(Dkt. No. 1-2.) As a result, Plaintiff alleges the defect
caused him severe injuries including partial loss of his
right foot. (Id.) He filed a complaint and
subsequently an amended complaint in the Georgetown County
Court of Common Pleas, asserting product liability claims for
negligence, strict liability, and breach of warranty against
Defendant. Defendant removed the case on June 30, 2017,
asserting diversity jurisdiction.
now moves for summary judgment, arguing that it did not
design, manufacture, or sell the frame straightener that
allegedly injured Plaintiff. (Dkt. No. 15-1.) According to
Defendant, the frame straightener was designed, manufactured,
and sold by Grabber Manufacturing Company, Inc. Defendant
R.G. Grabber purchased substantially all of Grabber
Manufacturing's assets on October 18, 2005. (Dkt. No.
15-2 ¶¶2.l & 2.3.) Defendant asserts that it
did not assume any of Grabber Manufacturing's liabilities
other than a vehicle lease and postage meter.
has failed to respond to the motion for summary judgment.
judgment is appropriate if a party "shows that there is
no genuine dispute as to any material fact" and that the
movant is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). In other words, summary judgment should
be granted "only when it is clear that there is no
dispute concerning either the facts of the controversy or the
inferences to be drawn from those facts." Pulliam
Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir.
1987). "In determining whether a genuine issue has been
raised, the court must construe all inferences and
ambiguities in favor of the nonmoving party." Health
South Rehab. Hosp. v. Am. Nat'l Red Cross, 101 F.3d
1005, 1008 (4th Cir. 1996). The party seeking summary
judgment shoulders the initial burden of demonstrating to the
court that there is no genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323(1986).
the moving party has made this threshold demonstration, the
non-moving party, to survive the motion for summary judgment,
may not rest on the allegations averred in his pleadings.
Id. at 324. Rather, the non-moving party must
demonstrate that specific, material facts exist that give
rise to a genuine issue. Id. Under this standard,
"[c]onclusory or speculative allegations do not suffice,
nor does a 'mere scintilla of evidence'" in
support of the non-moving party's case. Thompson v.
Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir.
2002) (quoting Phillips v. CSX Transp., Inc., 190
F.3d 285, 287 (4th Cir. 1999)).
"failure to oppose a basis for summary judgment
constitutes waiver of that argument." Satcher v.
Univ. of Ark. at Pine Bluff Bd. of Trustees, 558 F.3d
731, 735 (8th Cir. 2009). Nonetheless, "the court, in
considering a motion for summary judgment, must review the
motion, even if unopposed, and determine from what it has
before it whether the moving party is entitled to judgment as
a matter of law." Custer v. Pan Am. Life Ins.
Co., 12 F.3d 410, 416 (4th Cir. 1993).
record shows the frame straightener in question was produced
by Grabber Manufacturing. (See Dkt. No. 15-2 at 6.)
Defendant is a separate entity that purchased substantially
all of Grabber Manufacturing's assets. Thus, the issue
before the Court is whether R.G. Grabber has successor
liability for Grabber Manufacturing's products. A federal
district court sitting in diversity will apply the
substantive law of the forum state. Erie R.R. v.
Tompkins, 304 U.S. 64, 78 (1938). In South Carolina,
"absence of a statute, a successor or purchasing company
ordinarily is not liable for the debts of a predecessor or
selling company unless (1) there was an agreement to assume
such debts, (2) the circumstances surrounding the transaction
warrants a finding of a consolidation or merger of the two
corporations, (3) the successor company was a mere
continuation of the predecessor, or (4) the transaction was
entered into fraudulently for the purpose of wrongfully
defeating creditors' claims. Simmons v. Mark Lift
Indus., Inc., 622 S.E.2d 213, 215 (2005) (citing
Brown v. American Ry Express Co., 123 S.E. 97 (S.C.
1924)) (footnote and emphasis omitted).
determine whether one of those exceptions to the rule against
successor liability applies, the Court examines the
relationship between Grabber Manufacturing and R.G. Grabber.
R.G. Grabber holds itself out as having been formed in 1972.
See About Our Company, R.G. Grabber,
http://www.grabber.com/About-Us.html (last visited
Jan. 25, 2018). In truth, Grabber Manufacturing, owned by
Virgil Hinson, was formed on May 17, 1972, but Defendant R.G.
Grabber, owned by Raymond Gallant, was formed on October 11,
2005, one week before it purchased substantially all of the
assets of Grabber Manufacturing on October 18, 2005. Ga.
businessType=Domestic%20Profit%20Corporation (last visited
Jan. 25, 2018); Ga. Sec'y State,
e=Domestic%20Profit%20Corporation. It does not appear that
Grabber Manufacturing and R.G. Grabber ever had any officers
in common. Grabber Manufacturing and R.G. Grabber had the
same physical address: Sterling Industrial Park, 310
Greenswamp Road (sometimes listed as 310 Sterling Industrial
Road), Brunswick, Georgia, 31525. R.G. Grabber continued to
produce frame straighteners at that same location under
essentially the same name. Compare
tm (archive of website on Feb. 5, 2005) with R.G.
(last visited Jan. 25, 2018). In the sale agreement, Grabber
Manufacturing agreed to cooperate "in any actions by
[R.G. Grabber] to adopt the words 'Grabber Manufacturing
Company, Inc.' in its corporate name or as a fictitious
name under which [R.G. Grabber] would be authorized to
conduct business." (Dkt. No. 15-2 ¶ 2.2.) Grabber
Manufacturing and its owner, Mr. Hinson, agreed not to
conduct any business under any name including the word
"Grabber." (Id.) Grabber Manufacturing was
renamed "V & K Manufacturing, Inc." shortly
after the sale of its assets to R.G. Grabber and dissolved
soon thereafter. Ga. Sec'y State,
businessType=Domestic%20Profit%20Corporation (last visited
Jan. 25, 2017). Grabber Manufacturing and Mr. Vinson also
agreed to indemnify R.G. Grabber against any claims arising
from the operation of Grabber Manufacturing prior to the
sale. (Id. ¶ 10.1.)
case, there was no agreement by R.G. Grabber to assume
product defect liabilities from Grabber Manufacturing. There
is no evidence that the sale to R.G. Grabber had a fraudulent
purpose. The apparent purpose of the transaction was to sell
assets from Mr. Hinson to Mr. Gallant. There is no evidence
that the sale of Grabber Manufacturing's assets to R.G.
Grabber was a merger or consolidation rather than an