Carl Dixon v. Foot Locker Inc.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1125
CARL J. DIXON,
Plaintiff – Appellant,
v.
FOOT LOCKER INC.; NIKE USA, INC.,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Senior District
Judge. (1:13-cv-01926-JFM; 1:13-cv-01944-JFM)
Submitted: July 31, 2015 Decided: September 3, 2015
Before KEENAN and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Carl J. Dixon, Appellant Pro Se. Brian S. Goodman, Justin
Akihiko Redd, KRAMON & GRAHAM, PA, Baltimore, Maryland; Paul
McDermott Finamore, NILES, BARTON & WILMER, LLP, Baltimore,
Maryland; Michael A. Joseph, Howard F. Strongin, STRONGIN
ROTHMAN & ABRAMS LLP, New York, New York, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Carl J. Dixon appeals the district court’s orders denying
his motions to compel and granting summary judgment in favor of
Foot Locker, Inc. (Foot Locker), and Nike USA, Inc. (Nike)
(collectively, “Defendants”), in Dixon’s diversity civil action. 1
Finding no reversible error, we affirm.
We review discovery rulings for abuse of discretion,
according the district court “substantial discretion.” United
States ex rel. Becker v. Westinghouse Savannah River Co., 305
F.3d 284, 290 (4th Cir. 2002). Dixon sought to compel the
deposition testimony of the CEOs of both Nike and Foot Locker.
However, Dixon had no authority to designate the corporate
witnesses of either Defendant, see Fed. R. Civ. P. 30(b)(6), and
he failed to establish that the CEOs had any direct or
specialized knowledge relevant to the elements of his claims.
Cf. Minter v. Wells Fargo Bank, N.A., 258 F.R.D. 118, 125-26 (D.
Md. 2009) (collecting cases). Additionally, Dixon’s second
1
Dixon’s informal brief also challenges the court’s orders
consolidating his actions and denying Fed. R. Civ. P. 59(e)
relief. Because Dixon did not object to consolidation in the
district court, we decline to consider this argument. See
Karpel v. Inova Health Sys. Servs., 134 F.3d 1222, 1227 (4th
Cir. 1998). Additionally, because Dixon did not file a separate
notice of appeal from the denial of his Rule 59(e) motion, the
order denying that motion is not properly before us. See Fed.
R. App. P. 4(a)(4)(A), (B)(ii); see generally Smith v. Barry,
502 U.S. 244, 248-49 (1992).
2
motion to compel sought deposition testimony outside the
discovery period, without providing any justification for the
delay. Under the circumstances presented, we find no abuse of
the district court’s broad discretion in declining to compel
these witnesses’ testimony.
We review de novo a district court’s grant of summary
judgment, viewing the facts and drawing all reasonable
inferences in the light most favorable to the nonmoving party.
Glynn v. EDO Corp., 710 F.3d 209, 213 (4th Cir. 2013). Summary
judgment is appropriate “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). To survive a motion to dismiss, the nonmoving party must
provide evidence “sufficient to establish the existence of [all]
element[s] essential to that party’s case, and on which that
party will bear the burden of proof at trial.” Othentec Ltd. v.
Phelan, 526 F.3d 135, 140 (4th Cir. 2008) (internal quotation
marks omitted). “[C]onclusory allegations, mere speculation,
the building of one inference upon another, or the mere
existence of a scintilla of evidence” are insufficient to meet
this burden. Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir.
2013), cert. denied, 134 S. Ct. 1761 (2014).
Each of Dixon’s claims relied on the underlying premise
that the athletic shoes he purchased were unsafe or
3
inappropriate for use in playing basketball on a wooden surface,
despite being marketed as basketball shoes, and that his use of
these unsafe shoes while playing basketball caused his injury.
See Lloyd v. Gen. Motors Corp., 916 A.2d 257, 276-77 (Md. 2007)
(stating that private claim for violation of Maryland Consumer
Protection Act requires proof that defendant materially
misrepresented consumer product, resulting in actual injury);
Ford Motor Co. v. Gen. Accident Ins. Co., 779 A.2d 362, 369-70
(Md. 2001) (recognizing that products liability claim relying on
negligence, breach of warranty, or strict liability requires
proof of product defect and causal relationship between defect
and plaintiff’s injury); Mazda Motor of Am., Inc. v. Rogowski,
659 A.2d 391, 395-96 (Md. Ct. App. 1995) (observing that failure
to warn claim requires proof of defective condition or hidden
risk in product that caused injury). Dixon failed to provide
evidence, beyond his own unsupported inferences and speculative
assertions, that would permit a factfinder to reach such a
conclusion. While he claims that expert testimony was not
required to establish his premise, the district court properly
determined that the circumstances of his injury (as well as the
shoe’s appearance) were insufficient to give rise to an
inference that a defect or deficiency in the shoe was
responsible for causing his injury. See Mohammad v. Toyota
Motor Sales, U.S.A., Inc., 947 A.2d 598, 607 (Md. Ct. App. 2008)
4
(addressing expert testimony in products liability cases).
Thus, the district court properly granted summary judgment as to
each of Dixon’s claims based on his failure to provide expert
testimony.
Finally, while Dixon claims that he did not receive Foot
Locker’s summary judgment motion, 2 Nike’s summary judgment motion
placed Dixon on notice of his obligation to produce expert
testimony to establish his claims. Dixon did not do so, and his
discovery responses conceded that he had no intention of
obtaining such evidence. We therefore conclude any deficiency
in providing notice of Foot Locker’s summary judgment motion did
not produce reversible error. We have reviewed Dixon’s
remaining challenges to the district court’s grant of summary
judgment and find them unpersuasive.
Accordingly, we affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
2The motion was mailed to Dixon’s address. In addition,
Dixon received the required notice pursuant to Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975), so he was alerted to the
existence of the motion and his obligation to respond.
5