Teresa Miller v. Fleetwood Homes of Tennessee, et

Case: 16-60389 Document: 00513824863 Page: 1 Date Filed: 01/06/2017
IN THE UNITED STATES COURT OF APPEALSGe
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-60389
Fifth Circuit
FILED
Summary Calendar January 6, 2017
Lyle W. Cayce
TERESA MILLER, Clerk
Plaintiff - Appellant
v.
WHIRLPOOL CORPORATION; A & E FACTORY SERVICES;
SIEMENS CORPORATION,
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:13-CV-747
Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM:*
A fire destroyed a mobile home and personal property owned by plaintiff-
appellant Teresa Miller. Miller claims that the fire began when a
subcontractor, A & E Factory Services, attempted to repair her broken
Whirlpool dryer, during the course of which a breaker box allegedly designed
or manufactured by Siemens Corporation blew. Armed with these allegations,
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 16-60389 Document: 00513824863 Page: 2 Date Filed: 01/06/2017
No. 16-60389
Miller sued defendants-appellees A&E Factory Services, Whirlpool
Corporation, and Siemens Corporation. The district court granted summary
judgment in favor of all defendants. We AFFIRM.
The district court disposed of the claims against each defendant in
separate orders. First, as to Siemens Corporation, Siemens had filed a motion
to strike Miller’s proffered expert report because it did not opine that the
breaker box was defective or that the breaker box caused the fire. Siemens had
also filed a motion for summary judgment, arguing that it did not design or
manufacture the breaker box. The district court, finding that the expert report
was speculative and inadmissible, granted the motion to strike. In addition,
the district court granted summary judgment because Miller did not show that
Siemens Corporation was the designer or manufacturer of the breaker box or
was responsible for the fire. The district court therefore dismissed Siemens
Corporation.
Second, Whirlpool moved for summary judgment, arguing that it was not
liable for the acts of its independent contractor, A & E, and there was no proof
that the Whirlpool dryer caused or contributed to the fire. The district court
granted the motion because Miller’s expert report did not say Whirlpool was
responsible and, under Mississippi law, Whirlpool was not vicariously liable
for A & E. The district court therefore dismissed Whirlpool as well.
Third, A & E had moved to strike Miller’s expert report and for summary
judgment. After Miller did not respond to the motions for over nine months,
the district court ordered Miller to show cause for her failure to respond. When
Miller still did not respond, the district court granted both motions and
dismissed Miller’s claims against A & E for failure to prosecute.
In the meantime, Miller filed Rule 56(d) motions, requesting further
discovery in response to Siemens’s and Whirlpool’s motions, which the district
court denied. On appeal, she asserts only that the district court erroneously
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Case: 16-60389 Document: 00513824863 Page: 3 Date Filed: 01/06/2017
No. 16-60389
denied her request for further discovery. She claims that she was unable to
fully inspect the breaker box and consequently was not able to determine the
exact cause of the fire.
This court reviews a district court’s denial of a Rule 56(d) motion for
abuse of discretion. Am. Family Life Assur. Co. of Columbus v. Biles, 714 F.3d
887, 894 (5th Cir. 2013). “Non-moving parties requesting Rule 56(d) relief ‘may
not simply rely on vague assertions that additional discovery will produce
needed, but unspecified, facts.’” Id. (internal citation omitted).
We find no abuse of discretion. Miller raises no new arguments and
offers no reason to find an abuse of discretion. Moreover, even if the court had
allowed further discovery, Miller’s claims against defendants would fail for the
reasons briefed in this court by the defendants. With regard to Siemens,
Miller’s expert report does not indicate that further inspection would have
revealed that Siemens manufactured the breaker box. With regard to
Whirlpool, Miller does not allege that the Whirlpool dryer was defective, nor
does Miller contest that A & E is an independent contractor for whom
Whirlpool has no vicarious liability. See, e.g., Chisolm v. Miss. Dep't of Transp.,
942 So. 2d 136, 141 (Miss. 2006). Granting Miller’s request for additional
discovery would therefore not affect the outcome of this action. The district
court did not abuse its discretion in denying Miller’s Rule 56(d) motion.
Miller raises the same Rule 56(d) arguments against A & E, but she
never filed a Rule 56(d) motion in response to A & E’s motions. In fact, she
filed no responses to A & E’s motions. Moreover, on appeal, she has not
challenged the district court’s order granting both motions and dismissal for
failure to prosecute. It is well settled that “[a]ny issue not raised in an
appellant's opening brief is deemed waived.” United States v. Pompa, 434 F.3d
800, 806 (5th Cir. 2005). Miller waived this issue.
The judgments of the district court are AFFIRMED.
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