United States District Court, D. Idaho
DEAN A. CARMEN, Plaintiff,
BREVILLE USA, INC., f/k/a METRO/THEBE, INC. d/b/a HWI USA, a California corporation, BREVILLE HOLDINGS USA, INC., a California corporation, BREVILLE GROUP LIMITED, a foreign business entity, BREVILLE PTY LIMITED, a foreign business entity, BREVILLE INTERNATIONAL LIMITED, a foreign business entity, and BED BATH & BEYOND, INC., a New York corporation, Defendants.
REPORT AND RECOMMENDATION RE: DKT. 64, ORDER RE: DKT.
Honorable Candy W. Dale United States Magistrate Judge.
the Court is the motion for summary judgment filed on
December 19, 2017, by Defendants Breville USA, Inc. and
Breville Holdings USA, Inc. (collectively
“Breville”). Plaintiff Dean Carmen, who has been
proceeding pro se in this matter since November 21, 2017, was
provided with notice regarding the requirements for
responding to the summary judgment motion. Since then, the
Court conducted a telephonic status conference on April 12,
2018, and entered an Amended Case Management Order. (Dkt.
In its order, the Court noted the pending motion, and
provided Carmen until April 30, 2018, to file a response.
Absent a response, the Court informed Carmen it would
consider the motion under advisement, and issue an
did not file a response, and instead emailed the Court on May
1, 2018, requesting an extension of time to respond to the
motion. (Dkt. 79.) On May 2, 2018, Carmen again emailed the
Court with a document purporting to be responsive to the
motion for summary judgment. The Court elected to treat the
correspondence and the attachment as Carmen's response to
the motion for summary judgment. (Dkt. 80.)
Court may not grant summary judgment by default without
considering whether the movant met its burden of
demonstrating any absence of a genuine issue for trial.
See Marshall v. Gates, 44 F.3d 722, 725 (9th Cir.
1995) (summary judgment may not be granted simply because
opposing party violated a local rule, if movant did not meet
burden of demonstrating absence of genuine issue for trial).
Therefore, the Court will evaluate the motion for summary
judgment on the merits. Based upon a review of the record,
the Court will recommend that summary judgment be granted to
Breville on all claims asserted against it in the Second
turning to the motion for summary judgment, however, the
Court must first address Carmen's request for an
extension of time to respond. He cites his lack of
familiarity with the law as the reason he requires more time.
However, this lawsuit has been pending since April 1, 2015.
(Dkt. 1.) The motion for summary judgment was filed on
December 19, 2017. The Court instructed Carmen to provide a
response to the motion on several occasions. (Dkt. 68, 76,
77.) The Court has accommodated Carmen's requests to
continue several scheduled status conferences. (Dkt. 67; 68,
70, 71, 72, 76.) The Court has provided sufficient time for
Carmen to locate counsel to represent him, and to respond to
the pending motion for summary judgment.
litigants are subject to the same rules of procedure, and
must adhere to the orders of the Court, just like litigants
who have counsel. King v. Atiyeh, 814 F.2d 565, 567
(9th Cir. 1987). At this juncture, in order to secure the
just, speedy, and inexpensive determination of this action,
the Court deems the motion for summary judgment ripe for its
consideration. Fed. Rule Civ. P. 1. Based upon the length of
the delay and the impact it has had on these three-year-old
proceedings, the resulting prejudice to Breville from the
delay, and a review of the reason for requesting another
extension, the Court finds Carmen has not shown excusable
neglect. Fed. Rule Civ. P. 6(b)(1)(B); Briones v. Riviera
Hotel & Casino, 116 F.3d 379, 381 (9th Cir. 1997)
(instructing the court to consider the danger of prejudice,
the length of the delay and its potential impact on judicial
proceedings, the reason for the delay, and whether the movant
acted in good faith.)
Court therefore DENIES the motion for
is in the business of designing, engineering, manufacturing,
marketing, distributing and selling houseware products and
electrical espresso makers. On January 26, 2013, Carmen
purchased a Breville 800ESXL/B1225 model espresso maker from
a Bed, Bath & Beyond (“BB&B”) store in
Boise, Idaho. Carmen had previously owned two other Espresso
Makers made by a different manufacturer for the twelve years
prior to purchasing the Breville Espresso Maker. Depo. of
Carmen at 209. (Dkt. 64-5 at 53.) On February 9, 2013, Carmen
returned the espresso maker to BB&B because it failed to
heat. BB&B did not have a new Breville 800ESXL/B1225
model espresso maker that had not been removed from its
box/packaging and available to exchange. BB&B did have a
display model of the Breville 800ESXL/B12251 model espresso
maker available to exchange. Carmen exchanged the espresso
maker that he originally purchased for the display model (the
kept the accessories and operating manual that came with the
first espresso maker because the display model had been
removed from its box and packaging. Carmen read the Espresso
Maker's operating manual from cover-to-cover and followed
all safety policies set forth in the manual when he used the
about the morning of April 1, 2013, Carmen made a latte with
the Espresso Maker without issue. Carmen claims he was in the
process of making a second latte when the Espresso Maker
malfunctioned and began spraying him with high pressure steam
and water. Carmen sustained second and third degree burns to
his left hand and chest, and first degree burns to the left
side of his face.
incident allegedly occurred when Carmen attempted to attach
the portafilter to the Espresso Maker. Carmen testified that
he “went to install the portafilter into the machine.
At that point, it's very unclear. I remember --- I
remember falling backwards, and that was pretty much the
extent of what I remember until the policeman did the safety
check the following day.” Depo. of Carmen at 88. (Dkt.
64-5 at 23.) Although Carmen does not recall specifically how
his burns occurred, he concluded, from the way he ended up
with his burns, that the Espresso Maker began to spray from
the area around the portafilter as he put the portafilter up
to the machine. Depo. of Carmen at 90-94. (Dkt. 64-5 at
April 2, 2013, the day after the incident occurred, Carmen
was found on the floor of his living room by Boise Police
Department officers. The officers responded to Carmen's
home because Carmen's employer requested that a welfare
check be conducted. Carmen had not shown up for work for two
days, and his employer was aware of his medical
conditions. The police officers found Carmen laying in
his living room with a blanket over him and no pants on. The
officers noted also that Carmen's stove and the Espresso
Maker were on when they arrived.
was transported to Saint Alphonsus Regional Medical Center,
where he presented with left sided burns (primarily to his
left hand), severe dehydration, mild acute renal failure and
acute grade 1-2 encephalopathy. Carmen received medical
treatment at Saint Alphonsus for four days. He was then
transferred to Harborview Medical Center's Burn Unit in
Seattle, Washington. Carmen's left hand was eventually
amputated on June 9, 2014.
October 8, 2014, Carmen posted a review of the Espresso Maker
on Amazon, which stated:
I purchased my machine a little over a a [sic] year ago and
about two weeks later a crack opened in one of the castings
and sprayed my left hand with scolding steam requiring a two
month hospital stay and eventually after a year of intense
therapy, my hand was amputated. Brevilles [sic] response?
Stonewall. So the long process of trying get proper
prosthetics, compensated for a lost job and ...