United States District Court, N.D. Mississippi, Aberdeen Division
JUDY BOUCHILLON, Individually, and on behalf of the Statutory Wrongful Death Beneficiaries of Jim Bouchillon, Deceased; and as Personal Representative of the Estate of Jim Bouchillon PLAINTIFF
SAME DEUTZ-FAHR, GROUP; SAME DEUTZ-FAHR NORTH AMERICA, INC.; DEUTZ AG; and SAME DEUTZ-FAHR DEUTSCHLAND, GMBH, d/b/a as SAME Deutz-Fahr Germany DEFENDANTS
M. BROWN UNITED STATES DISTRICT JUDGE.
products liability action is before the Court for
consideration of the report and recommendation submitted by
Special Master Werner F. Ebke, Doc. #215; and Judy
Bouchillon's “Motion for Leave to Provide Motion
and Exhibit to Special Master, ” Doc. #224.
Complaint and Filing of Dispositive Motions
case arises out of the fatal injury sustained by Jim
Bouchillon while he was operating a Deutz model 3006 tractor
(“Tractor”) on August 17, 2013. Doc. #1 at ¶
8. His wife and estate representative, Judy Bouchillon,
commenced this wrongful death product liability action
against three German corporations: SAME Deutz-Fahr, Group
(“SAME Group”); Deutz AG (“Deutz”);
and SAME Deutz-Fahr North America, Inc. (“SAME
America”). In her complaint, Judy alleged that the
Tractor was defective and “was designed, manufactured,
marketed, distributed, warranted, and sold by
Defendants.” Id. at ¶¶ 10-13. The
complaint asserted two claims: a design defect claim,
pursuant to Miss. Code Ann. § 11-1-63; and a failure to
warn claim pursuant to Miss. Code Ann. § 11-1-63.
Id. at ¶¶ 14-21. SAME America and SAME
Group answered the complaint on November 7, 2014. Doc. #4.
Deutz, after seeking and receiving an extension of the
deadline to respond to the complaint, answered on January 19,
2015. Doc. #14; Doc. #19.
March 24, 2016, after approximately a year of discovery, Judy
filed a motion to amend her complaint to add an additional
defendant, SAME Deutz-Fahr Deutschland GmbH d/b/a Same
Deutz-Fahr Germany (“SAME Germany”). Doc. #66.
SAME America and SAME Group responded in opposition to the
motion to amend, Doc. #76, and Judy replied, Doc. #77. On
July 15, 2015, United States Magistrate Judge David A.
Sanders granted the motion to amend. Doc. #85. On July 17,
2015, Judy filed her amended complaint. Doc. # 86. All
defendants answered the amended complaint. Doc. #80; Doc.
#108; Doc. #109.
18, 2015, Deutz filed a motion for summary judgment, arguing
that it transferred “all assets, liabilities and risks
of its tractor business” in a sale to Agrartechnik GmbH
(a predecessor to the SAME entities), which took place in
1991 and 1992. Doc. #81. On September 4, 2015, SAME Group and
SAME America responded in opposition to Deutz's motion
for summary judgment and filed their own motion for summary
judgment. Doc. #99; Doc. #100. The same day, Judy filed a
response to Deutz's motion for summary judgment arguing,
of relevance here, that “by virtue of the 1991 and 1992
agreements ... [SAME] Group and SAME Germany are legally
responsible for product liability claims related to [the]
tractor.” Doc. #102 at 4. Similarly, on November 23,
2015, Judy, in response to the SAME defendants' motion
for summary judgment, argued that “[t]he 1992 agreement
effectively transferred Deutz's tractor related product
liabilities to KHD Agrartechnik.” Doc. #126 at 4. Also
on November 23, 2015, Deutz filed a “Consolidated Reply
Memorandum in Support of its Motion for Summary Judgment and
Memorandum in Support of its Response in Opposition to [SAME]
Group and [SAME] America[‘s] ... Motion for Summary
Judgment.” Doc. #129. SAME Group and SAME America
replied in support of their motion for summary judgment on
December 18, 2015. Doc. #139; Doc. #140.
Referral to Special Master
March 10, 2016, this Court, acting on motion of SAME America
and SAME Group, issued an order submitting the pending
motions for summary judgment to a special master. Doc. #162.
On June 17, 2016, the Court, after receiving from the parties
four nominations for special master, appointed Werker F. Ebke
as the special master in this action. Doc. #188.
December 8, 2016, Ebke filed his report and recommendation
with this Court. Doc. #215. On December 29, 2016, Judy
filed a motion to adopt Ebke's report. Doc. #218. The
same day, SAME America and SAME Group filed a joint motion to
adopt the report. Doc. #219. On January 3, 2017, Deutz filed
a motion to adopt in part and modify in part the report. Doc.
#220. SAME America and SAME Group responded in opposition to
Deutz's motion to modify, Doc. #222, and Deutz timely
replied, Doc. #223.
February 3, 2017, this Court informed the parties that it
intends to resubmit the report and recommendation to Ebke
along with three additional questions, which were provided to
the parties. The Court asked the parties to provide comments
on the proposed questions, which they did on February 6,
February 6, 2017, Judy filed a “Motion for Leave to
Provide Motion and Exhibit to Special Master, ” in
which she seeks “permission to provide a copy of [the]
motion, and the attached exhibit, to the special master prior
to his consideration of the additional questions to be
presented to him by the Court.” Doc. #224. The SAME
defendants informed this Court, by email, that they do not
intend to respond in opposition to Judy's motion. Deutz
responded, by email, that it feels Judy's requested
relief is moot.
acting on a master's ... report, or recommendations, the
court ... may receive evidence; and may adopt or affirm,
modify, wholly or partly reject or reverse, or resubmit to
the master with instructions.” Fed.R.Civ.P. 53(f)(1).
Unless the parties have stipulated otherwise, a court reviews
de novo objections to a special master's report and
recommendation. See Fed. R. Civ. P. 53(f)(3)-(4).
Where no party has objected to the report and recommendation,
the report is reviewed for clear error. Onewest Bank N.A.
v. Louis, No. 15-cv-597, 2016 WL 4059214, at *1
(S.D.N.Y. July 28, 2016).