Tom Thomas, Father and Next Friend of Nathan D. Thomas, Aminor Child, Plaintiff, v. New England Firearms Co., Inc., a Corporation; H & R, 1871,inc., Formerly Known As Harrington & Richardson, Inc., Alsoknown As Harrington & Richardson Arms, a Corporation; Ducksunlimited, a Not for Profit Corporation, Defendants,ducks Unlimited, a Not for Profit Corporation,cross-claim-plaintiff-appellant, v. New England Firearms Co., Inc., a Corporation; H & R, 1871,inc., Formerly Known As Harrington & Richardson, Inc., Alsoknown As Harrington & Richardson Arms, a Corporation,cross-claim-defendants-appellees, 37 F.3d 1510 (10th Cir. 1994)

Before MOORE and ANDERSON, Circuit Judges, and BRIMMER,^**  District Judge.

ORDER AND JUDGMENT¹ 

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

The parties to this appeal were defendants in a products liability action brought on behalf of Nathan Thomas relating to injuries caused by a shotgun he obtained from Ducks Unlimited, Inc. Ducks Unlimited filed cross-claims against appellees New England Firearms, Inc., and H & R 1871, Inc., for indemnity and successor liability on the basis that they were successors to the bankrupt Harrington & Richardson, Inc., who manufactured the shotgun. The magistrate judge²  granted appellees' motions for summary judgment against both plaintiff and Ducks Unlimited. During trial, plaintiff and Ducks Unlimited settled. Ducks Unlimited appeals the grant of summary judgment on its cross-claims. (Plaintiff's separate appeal of the summary judgment order was dismissed.)

The progression from and relationship among Harrington & Richardson, New England Firearms and H & R 1871 are well described in the magistrate judge's December 16, 1993 order granting summary judgment. Essentially, New England Firearms and, later, H & R 1871 acquired and used Harrington & Richardson's manufacturing facilities and equipment to produce shotguns similar to the one that injured Nathan Thomas. They also used the Harrington & Richardson name and reputation to some extent in marketing their shotguns. Ducks Unlimited argues that they should be liable either (1) as mere continuations of Harrington & Richardson, under an exception to the general rule against liability of successor corporations stated in Pulis v. United States Elec. Tool, Co., 561 P.2d 68, 69 (Okla.1977), or (2) under the theory of "product line" liability as first stated in Ray v. Alad Corp., 560 P.2d 3, 8-12 (Cal.1977).

The magistrate judge rejected both of these arguments. He first concluded that appellees were not continuations of Harrington & Richardson because there was no continuation of the corporate entity, such as commonality of directors, officers, and stockholders, that Pulis requires. See Pulis, 561 P.2d at 71. He then concluded that there was no indication that Oklahoma courts would adopt the minority-view "product line" theory because the theory is counter to Pulis. Accord Florum v. Elliott Mfg., 867 F.2d 570, 580 (10th Cir. 1989) (declining to adopt product line theory under Colorado law, which, like Oklahoma's, adhered to the traditional rule of nonliability of successor corporations). Finally, he concluded that even were the "product line" theory accepted under Oklahoma law, it would not apply to the facts in this case.

We have jurisdiction under 28 U.S.C. 1291. We review grants of summary judgment de novo and apply the same standard used by the district court under Fed. R. Civ. P. 56(c). Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). We agree with the magistrate judge's analysis and conclusion that appellees are not liable to Ducks Unlimited as successors to Harrington & Richardson. Thus, for substantially the same reasons as stated in the magistrate judge's December 16, 1993 order, we affirm the grant of summary judgment in favor of New England Firearms and H & R 1981.

The judgment of the United States District Court for the Eastern District of Oklahoma is AFFIRMED.