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Carmen v. Breville USA, Inc.

United States District Court, D. Idaho

June 20, 2018

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.


          Honorable Candy W. Dale United States Magistrate Judge.


         Before 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. 63.)[1] 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 appropriate order.

         Carmen 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.)

         The 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 Amended Complaint.[2]


         Before 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.

         Pro se 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.)[3]

         The Court therefore DENIES the motion for extension.


         Breville 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 “Espresso Maker”).

         Carmen 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 Espresso Maker.

         On or 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.

         The 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 24-25.)

         On 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.[4] 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.

         Carmen 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.

         On 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 ...

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