United States District Court, S.D. Mississippi, Eastern Division
MEMORANDUM OPINION AND ORDER
KEITH STARRETT, District Judge.
This matter is before the Court on the Motion for Sanctions  and Motion for Summary Judgment  of the Defendants American Sportsman Holdings Co., Bass Pro, LLC, and Bass Pro Outdoors Online, LLC (hereinafter collectively referred to as "Bass Pro"); the Motion to Sever  and Motion for Summary Judgment  of the Defendant Dick's Sporting Goods, Inc. ("DSG"); and, the Plaintiff Marsha Hinton's Combined Motion to Strike and Motion in Limine with Authorities ,  and Motion for Permission to File Surrebuttal Brief . Having considered the submissions of the parties, the record, and the applicable law, the Court finds that:
1) Plaintiff's Combined Motion to Strike and Motion in Limine with Authorities ,  should be denied;
2) Plaintiff's Motion for Permission to File Surrebuttal Brief  should be granted;
3) Bass Pro's Motion for Summary Judgment  should be granted;
4) Bass Pro's Motion for Sanctions  should be denied;
5) DSG's Motion for Summary Judgment  should be granted; and
6) DSG's Motion to Sever  should be denied as moot.
This action involves the sale of hunting equipment allegedly subject to recalls issued by the United States Consumer Product Safety Commission ("CPSC"). Plaintiff claims that she purchased two Summit treestands from Bass Pro and that one of the treestands is subject to CPSC recall number 13-1015. Plaintiff also alleges that she purchased a Muddy Outdoors climbing stick from DSG that is subject to CPSC recall number 13-078. It appears that the Plaintiff sought to buy hunting equipment subject to CPSC recalls, and that she never intended to use the equipment. The Plaintiff's adult son, Timothy Hinton, died in connection with a hunting accident in November of 2012, and she has publically stated, "When I realized they were selling these tree stands that had been recalled, I decided I would do whatever I could to keep a wife or mother from standing over a casket". (Doc. No. [37-1] at p. 1.) Plaintiff has also admitted in her briefing before the Court "that this lawsuit was filed because of her son's death." (Pl.'s Mem. in Opp. to Mot. for SJ  at p. 7.) However, the specific hunting equipment involved in Timothy Hinton's hunting accident is not at issue in this lawsuit. Furthermore, no wrongful death claim has been asserted in this cause.
This action was initially filed in the Circuit Court of the Second Judicial District of Jones County, Mississippi. On October 25, 2013, Defendants Amazon.com.dedc, LLC and Amazon.com, LLC filed their Notice of Removal , asserting that the Court possessed jurisdiction over this cause pursuant to Title 28 U.S.C. §§ 1331 (federal question), 1332 (diversity of citizenship), and 1367 (supplemental jurisdiction). The remaining Defendants timely consented to the removal. On March 7, 2014, Plaintiff filed her Amended Complaint , presenting the following counts: (1) request for injunction; (2) negligence; (3) intentional conduct; (4) gross negligence; (5) breach of the implied warranty of merchantability; (6) failure to warn; (7) breach of the duty of good faith and fair dealing; (8) violation of the Mississippi Consumer Protection Act; (9) violation of federal law; and (10) punitive damages.
Both Bass Pro and DSG seek summary judgment on all of the Plaintiff's claims based on the position that they did not sell the Plaintiff any hunting equipment subject to a CPSC recall. The Court has fully considered these Defendants' summary judgment motions and the related motions at issue in this case and is ready to rule.
I. Plaintiff's Combined Motion to Strike and Motion in Limine with Authorities , 
This filing is aimed at a Hunting Related Investigate Report issued by the Mississippi Department of Wildlife Fisheries & Parks (the "Report") [77-2]. The Report pertains to the hunting accident suffered by the Plaintiff's son, Timothy Hinton. The facts section of Bass Pro's briefing on summary judgment references certain statements in the Report indicating that a substance believed to be marijuana and related paraphernalia were found at the site of the hunting accident. Plaintiff argues that the Report should be stricken from the record because it is irrelevant under Federal Rule of Evidence 401, and even if relevant, its probative value is substantially outweighed by one or more of the dangers listed under Federal Rule of Evidence 403. Plaintiff also requests that the Court issue an order prohibiting the Defendants from offering any further evidence or testimony relating to marijuana.
The Court finds that the Report is irrelevant to any issue bearing upon Bass Pro's request for summary judgment. However, there is no need to strike the Report from the record. The Court will simply disregard it in reaching a decision on the Motion for Summary Judgment . Cf. In re Paoli R.R. Yard PCB Litig., 916 F.2d 829, 859 (3d Cir. 1990) ("If a court believes evidence is irrelevant, it need only say so and discount it accordingly when it makes its summary judgment determination); Cramer v. Sabine Transp. Co., 141 F.Supp.2d 727, 733 (S.D. Tex. 2001) (denying a motion in limine in the context of a bench trial because "the Court can and does readily exclude from its consideration inappropriate evidence of whatever ilk"). Furthermore, the Report is not ...