Innovative Solutions International Inc v. Houlihan Trading Co Inc et al, No. 2:2022cv00296 - Document 247 (W.D. Wash. 2024)

Court Description: ORDER granting in part and denying in part the parties' cross-motions for summary judgment (Dkt. Nos. 153 , 162 , 176 ) as detailed herein. Signed by U.S. District Judge John C. Coughenour. (KRA)

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Innovative Solutions International Inc v. Houlihan Trading Co Inc et al Doc. 247 THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 10 INNOVATIVE SOLUTIONS INTERNATIONAL, INC., CASE NO. C22-0296-JCC ORDER Plaintiff, 11 v. 12 HOULIHAN TRADING CO., INC., et al., 13 Defendants. 14 15 This matter comes before the Court on Plaintiff Innovative Solutions International, Inc.’s 16 17 18 19 20 21 22 23 24 25 26 (“Innovative”) motion for summary judgment (Dkt. No. 153) and Defendant Pilgrim’s Pride Corporation’s (“Pilgrim’s”) cross-motion for summary judgment. 1 (Dkt. No. 162.) Having thoroughly considered the briefing and the relevant record, the Court finds oral argument unnecessary 2 and hereby GRANTS in part and DENIES in part each motion for the reasons explained herein. 1 In its response motion, Houlihan joins Plaintiff’s motion for summary judgment against Pilgrim’s with respect to the express warranty and negligent misrepresentation claims. (See Dkt. No. 176 at 2.) 2 None of the parties could be prejudiced by a ruling solely on the papers, in light of the substantial briefing filed and clear authority on each relevant legal issue. See Jasinski v. Showboat Operating Co., 644 F.2d 1277, 1281 (9th Cir. 1981) (“The district court's struggle with a close and critical question, evident on the face of the court’s opinion, is enough to establish prejudice to the losing party.”) ORDER C22-0296-JCC PAGE - 1 Dockets.Justia.com 1 I. 2 BACKGROUND This action arises from a supply chain dispute associated with chicken “breast trim.” (See 3 generally Dkt. No. 83.) Namely, the parties contest whether “breast trim” may contain bone 4 under their supply agreement(s). (Id.) This, in turn, determines whether those agreement(s) were 5 violated. Defendant Pilgrim’s processed the chicken at issue (herein referenced as “chicken 6 584”). 3 (Dkt. No. 83 at 9.) And it indisputably contained bone. (Dkt. No. 155-2 at 3.) Yet, when 7 selling “chicken 584,” Pilgrim’s included a fact sheet describing the product as “breast trim.” 8 (Dkt. No 163-8 at 2–4.) 9 Over time, “chicken 584” passed through numerous intermediaries, including Defendant 10 Houlihan Trading Co., Inc. (“Houlihan”). (Dkt. No. 163.) Houlihan, in turn, offered to sell the 11 chicken to Innovative, a food products manufacturer. (See generally Dkt. No. 163-8.) In doing 12 so, Houlihan described it as “B/S” 4 and “breast trim.” (Dkt. No. 163-8 at 2.) Houlihan also sent 13 Innovative a copy of Pilgrim’s’ fact sheet and an image of a different Pilgrim’s label—both of 14 which described the product as “breast trim.” (Id.) Innovative then purchased the chicken, (see 15 Dkt. No. 154-36), to make its Chile Lime Chicken burgers, which it sold exclusively to Trader 16 Joe’s supermarket. (Dkt. No. 179-5.) When customers later complained about bones in the Chile 17 Lime Chicken burgers, (a) Innovative recalled the product, (see Dkt. No. 179-3 at 2) (USDA 18 recall notice), and (b) Trader Joe’s terminated its business relationship with Innovative. (Dkt. 19 No. 154-2 at 8–10.) In response, Innovative sued Houlihan and Pilgrim’s, 5 alleging breach of contract, breach 20 21 of express warranty, breach of implied warranty, negligent misrepresentation, negligence, and 22 23 24 25 3 584 is the breast trim’s product code. (See, e.g., Dkt. No. 83-1 at 4.) 4 Denotes Boneless/Skinless. (See Dkt. No. 154-6 at 3.) 5 26 Since then, Innovative added several supply chain defendants, which the Court dismissed, leaving only these original defendants. (See, e.g., Dkt. Nos. 74, 121.) ORDER C22-0296-JCC PAGE - 2 1 Washington’s Consumer Protection Act (“CPA”) claims. 6 (Dkt. No. 83.) Innovative now moves 2 for summary judgment on all claims (Dkt. No. 153), Pilgrim’s cross-moves on some of its claims 3 (Dkt. No. 162), and Houlihan joins Innovative in moving for summary judgment on the express 4 warranty and negligent misrepresentation claims (see Dkt. No. 176 at 2). 5 II. DISCUSSION 6 A. 7 “The court shall grant summary judgment if the movant shows that there is no genuine Legal Standard 8 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 9 Civ. P. 56(a). “If a moving party fails to carry its initial burden of production, the nonmoving 10 party has no obligation to produce anything, even if the nonmoving party would have the 11 ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 12 1099, 1102–03 (9th Cir. 2000). But once the moving party properly makes and supports their 13 motion, the nonmoving party “must come forward with ‘specific facts showing that there is a 14 genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 15 (1986) (quoting Fed. R. Civ. P. 56(e)). Conclusory, non-specific statements in affidavits are not 16 sufficient, and “missing facts” will not be “presumed.” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 17 871, 888–89 (1990). Ultimately, summary judgment is appropriate against a party who “fails to 18 make a showing sufficient to establish the existence of an element essential to that party’s case, 19 and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 20 317, 322 (1986). 21 B. 22 According to Pilgrim’s, the Poultry Products Inspection Act (“PPIA”) preempts any state 23 claims related to a U.S. Department of Agriculture (“USDA”) approved product label. (See Dkt. Federal Preemption 24 25 26 6 Innovative asserts the same causes of action against Pilgrim’s as it does against Houlihan, save for its breach of contract claim, which it asserts solely against Houlihan. (See generally Dkt. No. 83.) ORDER C22-0296-JCC PAGE - 3 1 No. 162 at 23.) Pilgrim’s argues that because the USDA’s Food Safety and Inspection Service 2 (“FSIS”) determined that Pilgrim’s did not mislabel “chicken 584,” all claims against it must be 3 dismissed—including those involving the product fact sheet. (Id. at 24.) 4 The PPIA regulates the nation’s poultry market to ensure that poultry is “wholesome, not 5 adulterated, and properly marked, labeled, and packaged.” 21 U.S.C. § 451. As part of the 6 regulation of this market, the PPIA imposes labeling requirements, including mandating that the 7 FSIS preapprove certain products’ labels. See generally 9 C.F.R. § 412.1 (2023); 21 U.S.C. 8 § 457(c). And to ensure national uniformity, the PPIA expressly preempts any state from 9 imposing additional or different “marking, labeling, [or] packaging” requirements on poultry 10 labels. 21 U.S.C. § 467e; Nat’l Broiler Council v. Voss, 44 F.3d 740, 744 (9th Cir. 1994) (citing 11 1968 U.S.C.C.A.N. 3426, 3442). The PPIA also preempts state liability laws that indirectly 12 impose additional or different labeling standards. See Cohen v. ConAgra Brands, Inc., 16 F.4th 13 1283, 1288 (9th Cir. 2021). This is because complying with such laws would effectively require 14 modifying FSIS-mandated labels. Id. But for the PPIA to apply at all, the representation at issue 15 must constitute “labeling” under the PPIA’s express preemption provision. Thus, whether the 16 PPIA preempts Innovative’s claims turns, at least in part, on whether Pilgrim’s’ 17 representations—namely, its product fact sheet—constitute labeling under the PPIA. 18 Under the Federal Food, Drug, and Cosmetic Act (“FD&C Act”), a “label” is “a display 19 of written, printed, or graphic matter upon any article or the [article’s] immediate container,” 20 and “labeling” means “all labels and other written, printed, or graphic matter (1) upon any 21 article or any of its containers or wrappers, or (2) accompanying such article.” 21 U.S.C. 22 § 453(s). Here, only the label was affixed to or accompanied the product at issue. (See Dkt. Nos. 23 163 at 6, 163-9.) The fact sheet was not. (Id.) Because the express preemption provision does 24 not apply to non-labels, see 21 U.S.C. § 467e, the PPIA’s express preemption is limited to the 25 26 ORDER C22-0296-JCC PAGE - 4 1 representations on the “chicken 584” label. 7 See, e.g., Chem. Specialties Mfrs. Ass’n, Inc. v. 2 Allenby, 958 F.2d 941, 946 (9th Cir. 1992) (determining that the Federal Insecticide, Fungicide, 3 and Rodenticide Act did not preempt representations on point-of-sale warnings because the 4 warnings were “neither written on the [product] nor attached to it,” and, therefore, were not 5 labels). 6 Having concluded that the PPIA’s express preemption provision governs the “chicken 7 584” label, the Court next considers whether the FSIS’s determination actually preempts claims 8 involving that label. PPIA preemption only occurs if state tort liability imposes requirements “in 9 addition to” or “different from” the federal requirements. 21 U.S.C. § 467e. A state requirement 10 is additional to or different from federal requirements if it is not “identical” or “parallel” to such 11 federal requirements. See Riegel v. Medtronic, Inc., 552 U.S. 312, 330 (2008) (interpreting an 12 identically worded statute); Nat’l Broiler Council, 44 F.3d at 745. Here, Pilgrim’s asserts, and 13 the Court agrees, that Innovative’s claims impose such requirements. The FSIS’s labeling 14 decisions are considered “federal requirements” under the PPIA. Cohen, 16 F.4th at 1288. 8 15 Hence, any misrepresentation claim based on an FSIS-approved label (here, the “584 Chicken” 16 label) imposes an “additional or different” requirement and is therefore preempted. Id. 17 Accordingly, Pilgrim’s motion for summary judgment (Dkt. No. 162) on this issue is 18 GRANTED in part and DENIED in part consistent with the reasoning above. Express Warranty 9 19 C. 20 Innovative and Pilgrim’s cross-move for summary judgment on Innovative’s breach of 21 7 22 23 24 25 The PPIA’s express preemption also applies to statements made on the label. See Cohen, 16 F.4th at 1290 (determining that a plaintiff’s misrepresentation claim based on the phrase “Made with 100% Natural White Meat Chicken” on the defendant’s website was preempted because the FSIS approved the phrase for the product’s label) (citing Taylor AG Industries v. Pure-Gro, 54 F.3d 555, 561 (9th Cir. 1995)). 8 Indeed, when the FSIS approves a label, it thereby deems the label compliant with the PPIA. Id. 9 26 The Court shall construe Innovative’s claim as arising out of contract law because it cites to the UCC in its motion and Pilgrim’s does not challenge this choice of law. ORDER C22-0296-JCC PAGE - 5 1 express warranty claim against Pilgrim’s.10 (Dkt. Nos. 153, 162.) Innovative argues that 2 Pilgrim’s breached its express warranty when the chicken included “excessive bones and other 3 parts of chicken,” despite Pilgrim’s representations that it was “a boneless breast trim product.” 4 (Dkt. No. 153 at 25.) Pilgrim’s counters that none of the materials it provided before the time of 5 sale indicated the product was boneless. (Dkt. No. 162 at 15.) Resolution of this issue thus turns 6 on whether an express warranty existed at the time of sale. 7 When a seller makes an affirmation of fact to a buyer, this creates an express warranty 8 that the good will conform to this affirmation. RCW § 62A.2-313. While generally privity is 9 required to maintain an action for breach of warranty, this requirement is relaxed when the seller 10 makes an express warranty to the buyer. Thongchoom v. Graco Children’s Products, 71 P.3d 11 214, 219 (Wash. Ct. App. 2003). But to recover, a plaintiff must show that it was aware of the 12 seller’s representation. Baughn v. Honda Motor Co., 727 P.2d 655, 669 (Wash. 1986). 13 Here, it is uncontroverted that, when selling “chicken 584,” Pilgrim’s included a product 14 fact sheet identifying it as consisting of “large breast trim.” (Dkt. No. 163-8 at 2–4.) 11 This is 15 sufficient to establish that Pilgrim’s made an affirmation regarding “chicken 584,” which 16 Innovative was aware of when it received the product with the label. RCW § 62A.2-313. 17 However, the parties offer conflicting evidence with respect to whether the product that 18 Innovative received fairly constitutes “breast trim.” While some evidence cited suggests that 19 “breast trim” is understood to be boneless, other evidence suggests that breast trim may include 20 bones. 12 Ultimately, a reasonable jury could conclude one way or the other. Because a genuine 21 10 22 23 24 25 26 Houlihan joins Innovative in its motion for summary judgment against Pilgrim’s on its breach of express warranty and negligent misrepresentation claims. (See Dkt. No. 176. 11 In addition to passing on Pilgrim’s’ product fact sheet, Houlihan attached a picture of a label when re-selling “chicken 584” to Innovative. (Dkt. No. 163-8 at 2.) That picture was sent by email and, therefore, fails to meet the statutory definition of a label. See 21 U.S.C. § 453(s). Accordingly, the Court considers it to have no preemptive effect. 12 For example, a Pilgrim’s employee stated in a deposition that breast trim means boneless/skinless. (Dkt. No. 154-7 at 15.) However, an e-mail from the USDA indicates that ORDER C22-0296-JCC PAGE - 6 1 issue of material fact exists as to whether the chicken received by Plaintiff can reasonably be 2 referred to as “breast trim,” summary judgment is precluded. 3 4 Accordingly, the Court DENIES each party’s summary judgment motions (Dkt. Nos. 153, 162) as it relates to Plaintiff’s express warranty claim. 13 5 D. 6 Innovative and Pilgrim’s cross-move for summary judgment on Innovative’s negligent Negligent Misrepresentation 7 misrepresentation claim against Pilgrim’s. (See Dkt. Nos. 153, 162.) 14 Specifically, Pilgrim’s 8 challenges the sufficiency of Innovative’s evidence with respect to each element of this claim. 9 (Dkt. No. 162 at 12.) 10 To succeed on a claim of negligent misrepresentation, a plaintiff must prove (1) that the 11 defendant supplied false information to guide others in a business transaction, (2) that the 12 defendant knew or should have known this information was supplied to guide the plaintiff, (3) 13 that the defendant negligently communicated the information, (4) that the plaintiff relied on this 14 information, (5) that the plaintiff’s reliance on this information was reasonable, and (6) that this 15 information proximately caused the plaintiff’s damages. Ross v. Kirner, 172 P.3d 701, 704 16 (Wash. 2007). 17 At the outset, the Court finds that Innovative fails to establish the first prong of its prima 18 facie case, specifically, that Pilgrim’s supplied false information. As the Court noted above, see 19 supra Part II.C, a genuine issue of material fact exists as to whether the chicken received could 20 21 22 23 24 25 there is no “standard identity for Breast pieces that would indicate it should be boneless.” (Dkt. No. 163-10 at 2.) 13 Houlihan’s cross-motion for summary judgment against Pilgrim’s on its express warranty claim fails for the same reasons. 14 Houlihan joins Innovative in its motion for summary judgment against Innovative on its negligent misrepresentation claim. (See generally Dkt. No. 176.) 14 Houlihan joins Innovative in its motion for summary judgment against Innovative on its negligent misrepresentation claim. (See generally Dkt. No. 176.) 26 ORDER C22-0296-JCC PAGE - 7 1 reasonably be referred to as “breast trim.” Nonetheless, the Court may still consider whether 2 genuine issues of fact exist for the remaining elements. See Spirit Master Funding II, LLC v. 3 Herbst, 2014 WL 4635590 (D. Nev. 2014) (a court may grant summary judgment on specific 4 elements of a claim). 5 The Court turns to the second prong: whether Pilgrim’s knew or should have known the 6 supplied information would guide Innovative. Kirner, 172 P.3d at 704. It is undisputed that 7 Pilgrim’s supplied a “Product Fact Sheet” referencing “584 Chicken” and describing the product 8 as “large breast trim.” (See Dkt. No. 163-8 at 2–4.) Furthermore, Innovative offers testimony 9 from Pilgrim’s’ Senior Director of Quality Assurance that the “Product Fact Sheet” had the 10 potential to be passed down the supply chain to a customer. (Dkt. No. 154-5 at 6–7.) On these 11 facts, a reasonable jury could conclude that Pilgrim’s should have known that the information it 12 supplied would guide Innovative in its business. 13 Pilgrim’s resists this conclusion by arguing that it “did not supply Innovative directly 14 with any information.” (Dkt. No. 162 at 13.) However, “it is not required that the person who is 15 to become the plaintiff be identified or known to the defendant as an individual when the 16 information is supplied.” Haberman v. Washington Public Power Supply System, 744 P.2d 1032, 17 1068 (Wash. 1987). Rather, it is enough “that the maker of the representation knows that his 18 recipient intends to transmit the information to a similar person, persons, or group.” Id. In other 19 words, it is sufficient that Pilgrim’s supplied the information to a chicken distributor knowing it 20 had the potential for repetition, and that Innovative, as a result, received that information. Id. 21 Accordingly, the Court finds that Innovative has offered sufficient unrebutted evidence at the 22 summary judgment stage to support its burden with respect to the second prong of its negligent 23 misrepresentation claim. 24 The Court now turns to the third prong: whether Pilgrim’s negligently communicated the 25 information to Innovative. In arguing for summary judgment, Innovative first offers undisputed 26 evidence that, when selling the “584 Chicken,” Pilgrim’s supplied a “Product Fact Sheet” ORDER C22-0296-JCC PAGE - 8 1 containing a description of the product as consisting of “large breast trim.” (Dkt. No. 163-8 at 4.) 2 Second, Innovative offers the testimony of Pilgrim’s’ senior employees affirming that “breast 3 trim” does, in fact, mean boneless chicken. (See Dkt. Nos. 154-7 at 16, 154-9 at 4, 154-10 at 4– 4 6.) Third, Innovative provides uncontroverted evidence that Pilgrim’s knew that the “584 5 Chicken” it was selling contained bones. (Dkt. No. 154-7 at 32–34) (deposition testimony from 6 Santiago Tinoco conceding that the “reality is, we all know that code 584 always comes up with 7 lots of bones and skin”). By contrast, Pilgrim’s has provided no evidence in response. (See Dkt. 8 No. 162.) Accordingly, the Court finds that Innovative has satisfied its burden with respect to the 9 third prong of its negligent misrepresentation claim. 10 The Court now turns to the fourth prong: whether Innovative relied on Pilgrim’s 11 information. Plaintiff offers two main forms of evidence: (a) a supply agreement between it and 12 Houlihan in which Pilgrim’s’ “Product Fact Sheet” is appended, stating that the product consists 13 of “large breast trim” (Dkt. No. 163-8 at 4.); and (b) deposition testimony from Innovative’s 14 president that he relied on the “Product Fact Sheet” to “look at the defect levels on the chicken 15 and kind of understand . . . what we’re buying . . . [as] part of our product approval program.” 16 (Dkt. No. 154-1 at 3–4.) By contrast, Pilgrim’s fails to provide the Court with evidence in 17 rebuttal. (See Dkt. No. 184 at 17–20.) Accordingly, the Court finds that Innovative has satisfied 18 its burden with respect to the fourth prong of its negligent misrepresentation claim. 19 The Court now turns to the fifth prong: whether Innovative’s reliance on the information 20 provided to it was reasonable. Whether a party justifiably relied upon a negligent 21 misrepresentation is generally an issue of fact for the jury. ESCA Corp. v. KPMG Peat Marwick, 22 959 P.2d 651, 655 (Wash. 1998). But where the court finds that no rational person could find the 23 plaintiff reasonably relied on the defendant’s representation, the trial court can decide that 24 question as a matter of law. Hawkins v. Empres Healthcare Mgmt., LLC, 371 P.3d 84, 92 (Wash. 25 2016). Here, reasonable minds could conclude that Innovative reasonably relied on the 26 information provided to it. As such, summary judgment is inappropriate. ORDER C22-0296-JCC PAGE - 9 1 The Court now turns to the final prong: whether Pilgrim’s’ representation proximately 2 caused Innovative’s damages. Proximate cause is generally a question for the trier of fact unless 3 reasonable minds could not differ. Hertog, ex rel. S.A.H. v. City of Seattle, 979 P.2d 400, 406 4 (Wash. 1999). While it is certainly likely that Pilgrim’s’ fact sheet was the proximate cause of 5 Plaintiff’s injuries, because reasonable minds could differ, the Court is precluded from granting 6 summary judgment. See Seattle Flight Serv., Inc. v. City of Auburn, 604 P.2d 975, 978 (Wash. 7 Ct. App. 1979) (“The question of proximate cause is typically for the trier of fact unless the 8 evidence is undisputed, the inferences are plain, and not subject to reasonable doubt.”). 9 To summarize, the Court GRANTS Plaintiff’s motion for summary judgment (Dkt. No. 10 153), but only with respect to the second, third, and fourth prongs of its negligent 11 misrepresentation claim. In contrast, the first, fifth, and sixth prongs are for the jury to decide. 12 And because the prima facie analysis applies with equal force to Houlihan’s motion joining 13 Innovative’s negligent misrepresentation claim (Dkt. No. 176), the Court GRANTS in part 14 Houlihan’s motion (Dkt. No. 176) consistent with the Court’s reasoning above. 15 E. 16 Next, Pilgrim’s moves for summary judgment on Innovative’s breach of implied Implied Warranty Claims Against Pilgrim’s 17 warranty claim. (See generally Dkt. Nos. 162, 174, 192.) Innovative argues that privity of 18 contract is not required to recover on its implied warranty claim because it was an intended third- 19 party beneficiary of Pilgrim’s’ implied warranty. (Dkt. No. 174 at 19.) Pilgrim’s argues that 20 Innovative was not an intended third-party beneficiary and, even if it were, privity is nevertheless 21 required. (Dkt. No. 162, 174, 192.) 22 While the privity requirement is relaxed for express representations, privity is still 23 required for implied representations. Baughn v. Honda Motor Co., 727 P.2d 655, 669 (Wash. 24 1986). However, when a non-privity plaintiff is an intended third-party beneficiary of an implied 25 warranty, they may still be allowed to recover. Tex Enterprises, Inc. v. Brockway Standard, Inc., 26 66 P.3d 625, 628 (Wash. 2003). The Court looks at the sum of interactions between the parties to ORDER C22-0296-JCC PAGE - 10 1 determine whether the ultimate buyer was a third-party beneficiary of the underlying warranty 2 between the seller and the intermediary buyer. Touchet Valley Grain Growers, Inc. v. Opp & 3 Seibold General Const., Inc., 831 P.2d 724, 730 (Wash. 1992). 4 In Kadiak Fisheries Co. v. Murphy Diesel Co., for example, an engine manufacturer sold 5 a motor to a fishing company (“Kadiak”) through a supply company. 422 P.2d 496, 498 (Wash. 6 1967). There, the manufacturer knew the “identity, the purpose, and requirements” of the end- 7 buyer, Kadiak. Id. at 503. Specifically, the motor was engineered and constructed to meet certain 8 specifications bargained for by Kadiak; the motor was shipped directly to Kadiak; and the 9 manufacturer’s employees visited Kadiak numerous times during the installation of the motor. 10 Id. Based on these interactions, that court found that the fishing company was a third-party 11 beneficiary of the implied warranty made by the manufacturer. 12 Here, Innovative seeks to meet its Rule 56(e) burden to establish that it is a third-party 13 beneficiary through one piece of evidence: the Rule 30(b)(6) deposition of Pilgrim’s corporate 14 representative, Mike Henry. There, Mr. Henry describes Pilgrim’s prior business dealings with 15 Innovative and Pilgrim’s general understanding of the products Innovative was making. (See 16 Dkt. No. 178-31 at 4–6.) Like in Kadiak, the manufacturer here knew the identity, purpose, and 17 requirements of the end-buyer. Indeed, Innovative indicates that Pilgrim’s had a long-standing 18 understanding of the types of goods Innovative was selling and, crucially, their intended purpose. 19 20 Accordingly, the court DENIES Defendant Pilgrim’s motion for summary judgment (Dkt. No. 162) on Plaintiff’s breach of implied warranty claim. 21 F. 22 Pilgrim’s also moves for summary judgment on Innovative’s Consumer Protection Act 23 (“CPA”) claim. (See generally Dkt. Nos. 162, 174, 192.) To prevail on a private CPA action, a 24 plaintiff must establish (1) an unfair or deceptive act or practice, (2) that occurred in trade or 25 commerce, (3) that affected the public interest, (4) damages, and (5) causation. Hangman Ridge 26 Training Stables, Inc. v. Safeco Title Ins. Co., 719 P.2d 531, 535 (Wash. 1986). The Court ORDER C22-0296-JCC PAGE - 11 Consumer Protection Act Claim Against Pilgrim’s 1 understands Pilgrim’s motion as challenging the sufficiency of Innovative’s evidence with 2 respect to the first and third elements, (see Dkt. No. 192 at 10–11), and thus considers whether 3 Innovative can satisfy its burden as to these elements. 4 With respect to the first prong, Pilgrim’s argues that there was no unfair or deceptive 5 practice, reciting the now familiar argument that its representations were accurate. (Dkt. Nos. 6 162, 174, 192.) Given that a genuine issue of material fact exists as to whether the term “breast 7 trim” can be construed to include “584 chicken,” see supra n.12, the first element regarding the 8 existence of an unfair or deceptive act is an issue for a trier of fact to decide. 9 With respect to the third prong, Innovative offers three pieces of evidence tending to 10 show that Pilgrim’s’ acts had a public interest impact. First, it offers the testimonial evidence of 11 several of Pilgrim’s’ employees, including the senior director of quality assurance, admitting that 12 “there’s been an issue with excessive bones in 584 chicken out of the Lufkin plant for a couple of 13 years.” (Dkt. No. 154-5 at 16.) Second, Innovative offers customer e-mails complaining of 14 excessive bones in “584 Chicken.” 15 Third, it offers Pilgrim’s’ employees’ internal memo noting 15 that an end-user who uses “584 Chicken” to make nuggets for school children is “having to clean 16 it [584 Chicken] real good before they use it.” (Dkt. No. 154-21 at 3.) Taken together, this 17 indicates that the defects associated with “584 Chicken” affected the public writ large. 18 Accordingly, the Court finds that Plaintiff Innovative has met its burden as to the third element 19 of its CPA claim. 20 Accordingly, the Court DENIES Pilgrim’s’ motion for summary judgment (Dkt. No. 162) 21 and GRANTS in part Innovative’s motion (Dkt. No. 154), at least as it relates to the first and 22 third prongs of Plaintiff’s CPA claim. 23 24 25 26 G. 15 Negligence Claim Against Pilgrim’s The evidence provided is too lengthy to recite in detail, but concerning to this Court is an email in which a customer insists on returning “584 Chicken” to Pilgrim because “no products containing bones are allowed in the prison out of concern the inmates can make weapons out of them.” (Dkt. No. 154-27 at 5.) ORDER C22-0296-JCC PAGE - 12 1 2 Next, Pilgrim’s moves for summary judgment on Innovative’s negligence claim, arguing for certain affirmative defenses as a matter of law. (Dkt. No. 162 at 2.) 3 1. Assumption of Risk 4 Pilgrim’s first argues that Innovative assumed the risk of receiving a defective product 5 when it used “584 Chicken” domestically despite its “export only” label—which according to 6 Pilgrim’s, indicates that the chicken could be nonconforming. (Dkt. No. 162 at 17–19.) 7 For a plaintiff to assume a risk, they must have had (1) a full subjective understanding 8 (2) of the presence and nature of the specific risk, and (3) voluntarily chose to encounter the risk. 9 Egan v. Cauble, 966 P.2d 362, 365 (Wash. Ct. App. 1998). One who is unaware of the hazard 10 does not assume the risk. Mikelsen v. Air & Liquid Sys. Corp., 2018 WL 4899305, slip op. at 2 11 (W.D. Wash. 2018). 12 Here, Pilgrim’s fails to demonstrate that the “export only” label was tantamount to a 13 warning for the potential presence of bones, which Innovative was subjectively aware of. 14 Pilgrim’s cites to USDA FSIS Directive 9000.1, but that document makes no mention of 15 allowing bones in the product at issue. (See Dkt. No. 163-5 at 2–6.) Conversely, federal 16 regulations suggest the opposite—that a poultry product initially intended for sale in foreign 17 commerce but subsequently sold or offered for sale in domestic commerce must still comply 18 with domestic requirements. See 9 CFR § 317.7. Because Pilgrim’s fails to demonstrate that the 19 “export only” label communicated a specific risk and that Innovative understood it as such, 20 summary judgment on Pilgrim’s assumption of risk defense is DENIED. 21 22 23 24 2. Superseding Cause Pilgrim’s next argues that Innovative’s decision to ignore the “export only” label and its failure to adequately inspect the chicken were superseding causes. (Dkt. No. 162 at 19.) A superseding cause breaks the chain of causation only if the intervening event is so 25 unexpected that the defendant could not have reasonably foreseen it. Pacheco v. United States, 26 515 P.3d 510, 523 (Wash. 2022). A seller may reasonably assume that the user of its product ORDER C22-0296-JCC PAGE - 13 1 will “read and heed” the warnings the seller has placed on the product. See Beard v. Mighty Lift, 2 Inc., 224 F. Supp. 3d 1131, 1138 (W.D. Wash. 2016) (quoting Restatement (Second) of Torts 3 § 402A). Because a plaintiff’s defiance of a warning is not reasonably foreseeable, its disregard 4 of the warning represents a superseding cause that breaks the chain of proximate causation to 5 the defendant. Id. at 1138–39. However, whether an intervening act breaks the chain of 6 causation is ordinarily a question for the trier of fact. Pacheco, 515 P.3d at 523. 7 Here, Pilgrim’s fails to demonstrate that the “export only” label served as a warning akin 8 to those in products liability cases. As such, Pilgrim’s was not in a position where it could 9 reasonably assume that a user of its products would “read and heed” the “export only” label. See 10 Beard, 224 F. Supp. 3d at 1138. As previously noted, the USDA FSIS Directive 9000.1 is not a 11 warning for the presence of bones. See supra Part II.G.1. And poultry products intended for 12 foreign commerce but sold in domestic markets must comply with domestic requirements. 9 13 CFR § 317.7. 14 In the alternative, Pilgrim’s argues that Innovative’s failure to adequately inspect its 15 chicken was a superseding cause. (Dkt. No. 162.) But where the underlying product is defective, 16 and the plaintiff fails to inspect it, the question of whether that failure constitutes a superseding 17 cause is for the fact finder. See Olympic Air, Inc. v. Helicopter Tech. Co., 2022 WL 6162104, 18 slip op. at 7 (W.D. Wash. 2022) (determining that plaintiff’s failure to inspect a defective 19 helicopter blade prior to a crash was a question of fact regarding superseding cause). Thus, the 20 adequacy of Innovative’s inspection is not an issue appropriate for summary judgment. 21 Accordingly, summary judgment on Pilgrim’s superseding cause defense is DENIED. 22 23 3. Substantial Modification Finally, Pilgrim’s argues for the application of a substantial modification defense. (Dkt. 24 No. 162.) When a product undergoes substantial modification and that change is the cause of the 25 injury, the original manufacturer is absolved of liability. Padron v. Goodyear Tire & Rubber Co., 26 662 P.2d 67, 69 (Wash. Ct. App. 1983). Pilgrim’s suggests that Innovative’s failure to inspect the ORDER C22-0296-JCC PAGE - 14 1 chicken whatsoever caused the harm. (Dkt. No. 162 at 23–24.) However, Pilgrim’s theory of 2 liability does not fall within the ambit of the substantial modification defense doctrine and is 3 duplicative of its superseding cause argument. Summary judgment is therefore DENIED on this 4 defense. 5 H. 6 Innovative also moves for summary judgment on its breach of contract claim against Innovative’s Breach of Contract Claims Against Houlihan 7 Houlihan. (See generally Dkt. Nos. 153, 176.) Because Innovative carries the burden at trial, the 8 Court must first consider whether it has offered sufficient evidence to make out its prima facie 9 case on all three claims. 10 A breach of contract claim requires (1) the existence of a valid contract between the 11 parties, (2) defendant’s breach, and (3) damages. Glob. Cure Med. LLC v. Alfa Pharma LLC, 12 2020 WL 6075920, slip op. at 5 (W.D. Wash. 2020). Exchanging purchase orders and invoices 13 can establish a valid contract, see Tacoma Fixture Co. v. Rudd Co., 174 P.3d 721, 724 (Wash. Ct. 14 App. 2008), as does party conduct recognizing the existence of a contract. RCW 62A.2-204. 15 And, of course, delivering nonconforming goods generally constitutes a breach of contract. 16 Kysar v. Lambert, 887 P.2d 431, 437 (Wash. Ct. App. 1995) (citing RCW 62A.2-301). 17 Here, it is undisputed that Innovative and Houlihan exchanged purchase orders and 18 invoices for boneless chicken. (See Dkt. No. 154-36 at 2–13.) It is also undisputed that their 19 conduct reflected a contract for the purchase of “B/S breast trim” which was understood by 20 Houlihan and Innovative to mean a “boneless/skinless product.” (Dkt. No. 154-6 at 4–5.) This is 21 sufficient to establish the existence of a valid contract. 22 Having established the existence of a valid contract, Innovative must next show that 23 Houlihan breached that contract. Innovative offers two pieces of evidence. First, it offers an e- 24 mail from Frank Sorba, Innovative’s President, to senior employees at Houlihan in which he 25 takes issue with Houlihan’s non-conforming shipments of “584 Chicken.” (Dkt. No. 154-47 at 26 2.) Second, in that same e-mail, Mr. Sorba appends photos of the bones found in Houlihan’s ORDER C22-0296-JCC PAGE - 15 1 shipment. (Id. at 3–5.) Houlihan, on the other hand, offers no evidence establishing a dispute 2 about a material fact relevant to the contractual claims made. Having failed to do so, the Court is 3 compelled to grant Innovative’s motion. 4 5 Accordingly, the Court GRANTS Innovative’s motion for summary judgment (Dkt. No. 153) with respect to its breach of contract claim against Houlihan. 6 I. 7 Innovative also moves for summary judgment on its breach of express warranty claim 8 9 Innovative’s Breach of Express Warranty Claim Against Houlihan against Houlihan. (See generally Dkt. Nos. 153, 176.) An express warranty is any affirmation of fact, promise, or description by a seller relating 10 to or describing a good—but only when such representation forms the “basis of the bargain.” 11 RCW 62A.2-313(1); see Mensonides Dairy, LLC v. Agri-King Nutrition, Inc., 2018 WL 12 3603054, slip op. at 2 (E.D. Wash. 2018) (determining that defendant created an express 13 warranty because defendant, orally and in writing, represented that it would improve plaintiff’s 14 corn silage in specific ways). 15 To support its burden at summary judgment, Innovative offers evidence indicating: 16 (a) that Houlihan assured Innovative both orally and in writing that the chicken would be 17 boneless, (Dkt. Nos. 154-6 at 22, 154-37, 154-39); (b) that this representation formed the basis of 18 the bargain which garnered Innovative’s assent, (Dkt. Nos. 154-6 at 22, 27, 154-1 at 4); and 19 (c) that the chicken it received was not boneless as had been contracted for, (Dkt. No. 154-1 at 20 11–12). Houlihan was obligated to come forward with evidence establishing a dispute about a 21 material fact but having failed to do so, the Court GRANTS Innovative’s motion for summary 22 judgment (Dkt. No. 153) with respect to its breach of express warranty claim against Houlihan. 23 J. 24 Innovative asserts two breaches of implied warranties: merchantability and fitness for a 25 Innovative’s Breach of Implied Warranty Claim Against Houlihan particular purpose. (Dkt. No. 153.) The Court considers each in turn. 26 1. Implied Warranty of Merchantability ORDER C22-0296-JCC PAGE - 16 1 A breach of an implied warranty of merchantability claim requires the buyer prove that: 2 (1) the seller is a merchant; (2) the goods were not merchantable; (3) damages were proximately 3 caused by the defective nature of the good; and (4) the seller was given notice of the injury. 4 Superwood Co. Ltd. v. Slam Brands, Inc., 2013 WL 6008489, slip op. at 3 (W.D. Wash. 2013) 5 (citing RCW 62A.2-314). Washington law defines “merchantable” to signify “goods fit for the 6 ordinary purposes for which such goods are used.” RCW 62A.2-314. 7 The Court is satisfied that Plaintiff has met its burden at summary judgment. First, it is 8 undisputed that Houlihan is a merchant as defined by statute. See RCW 62A.2-104. Second, it is 9 undisputed that the “584 Chicken” that Innovative received included bones, thereby rendering 10 the goods not merchantable. (Dkt. Nos. 176 at 5, 153 at 5.) Third, given that the evidence 11 pertaining to proximate cause is undisputed, namely that Houlihan did, in fact, send Innovative a 12 nonconforming product, (Dkt. No. 176 at 5) and given that no other reasonable inferences may 13 be drawn from this fact, the Court finds that Innovative has satisfied its burden as to its breach of 14 implied warranty claim. See Seattle Flight Serv, 604 P.2d at 978 (“Unless the evidence is 15 undisputed and the inferences are plain and not subject to reasonable doubt, the question of 16 proximate cause is for the trier of fact.”); see also Dewar v. Smith, 342 P.3d 328, 337 (Wash. Ct. 17 App. 2015) (determining proximate cause as a matter of law where the facts are undisputed and 18 “reasonable minds could not differ”). Lastly, it is undisputed that Houlihan was given notice of 19 the injuries suffered. (Dkt. No. 154-47 at 2.) Houlihan offers no evidence establishing a genuine 20 issue of material fact. 21 22 Accordingly, the Court GRANTS Innovative’s motion for summary judgment (Dkt. No. 153) with respect to its breach of implied warranty of merchantability claim. 23 24 2. Implied Warranty of Fitness for a Particular Purpose To demonstrate a breach of an implied warranty of fitness for a particular purpose, a 25 buyer must prove that: (1) the seller had reason to know of the buyer’s particular purpose; (2) the 26 seller had reason to know that the buyer was relying on the seller’s skill or judgment to furnish ORDER C22-0296-JCC PAGE - 17 1 appropriate goods; and (3) the buyer in fact relied on the seller’s skill or judgment. Superwood 2 Co., 2013 WL 6008489, slip op. at 15. 3 To support its motion, Innovative first offers the deposition testimony of Travis Griffin, 4 partner of sales at Houlihan, stating that he was aware that Innovative required boneless chicken 5 in order to produce the Chile Lime Chicken burgers for Trader Joe’s. (Dkt. No. 154-6 at 26–27.) 6 This plainly satisfies Innovative’s burden at summary judgment with respect to the first element 7 of its implied warranty claim requiring that the seller have reason to know of the buyer’s 8 particular purpose. That purpose was to create boneless chicken burgers for Trader Joe’s. (Id. at 9 27.) Innovative next offers testimonial evidence establishing that it has been conducting 10 business with Houlihan for the last ten years. (Id. at 25.) Innovative argues, and the Court 11 agrees, that this suggests Houlihan had reason to know that Innovative would rely on its 12 judgment in furnishing the product at-issue here. 13 Finally, Innovative offers the testimony of its President, Frank Sorba, in which he 14 testifies to having relied on the “Product Fact Sheet” to “look at the defect levels on the chicken 15 and kind of understand. . . what we’re buying. . . it’s part of our product approval program.” 16 (Dkt. No. 154-1 at 3–4.) This indicates that Innovative relied on Houlihan’s judgment and did 17 so reasonably in view of the parties’ long-standing business relationship. 18 Rather than cite to countervailing evidence on the contractual and warranty claims, (see 19 Dkt. No. 176 at 9), Houlihan seeks to avoid summary judgment through an affirmative defense: 20 acceptance. The Court discusses this defense next. 3. Houlihan’s “Acceptance” Defense 16 21 22 23 Houlihan argues that Innovative is barred from recovery because, despite its inspection process, it failed to notify Houlihan of the nonconformity within a reasonable time. (Dkt. No. 24 25 26 16 Houlihan raised “acceptance” as an affirmative defense, but the parties refer to it by different names in their briefing. For simplicity, the Court will refer to the defense as the “acceptance” defense. ORDER C22-0296-JCC PAGE - 18 1 163.) In response, Innovative argues that, because its inspection process was not designed to 2 detect and triage bones, there was no delay when it informed Houlihan two days after Trader 3 Joe’s notified it of the defect. 17 Indeed, recovery is barred when the buyer accepts non- 4 conforming goods and fails to notify the seller of any breach within a reasonable time. See RCW 5 62A.2-607(3). A reasonable time is measured from when the buyer discovered or should have 6 discovered the breach and when that buyer provided notification, id., and the reasonableness of a 7 delay depends on the nature, purpose, and circumstances of the action. RCW 62A.1-205. As a 8 result, it is typically a mixed question of law and fact. Jarstad v. Tacoma Outdoor Recreation, 9 Inc., 519 P.2d 278, 283 (Wash. Ct. App. 1974). 10 At the outset, the Court finds that Houlihan has failed to set forth sufficient evidence to 11 support its defense. See Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 12 (9th Cir. 1991) (requiring the nonmoving party to present probative evidence supporting its 13 acceptance defense at summary judgment). Instead, Houlihan points to the existence of an 14 inspection process in Innovative’s processing plant. (Dkt. No. 163-4 at 4–7.) But the mere 15 existence of an inspection process is not sufficient to establish a factual dispute with respect to 16 whether Plaintiff should have discovered the nonconformity sooner. (See generally Dkt. No. 17 176 at 9.) And even if reasonably minded jurors might draw such an inference, Houlihan 18 proffered no evidence suggesting that the 54-day delay itself was unreasonable. See DZ Bank 19 AG Deutsche Zentral-Genossenschaftsbank v. Connect Ins. Agency, Inc., 2016 WL 631574, slip 20 op. at 25 (W.D. Wash. 2016) (noting that assertions of facts, without citations to evidence in the 21 record, do not create issues of fact that would alter the court’s decision to grant partial summary 22 judgment); see also Magic Link Garment Ltd. v. ThirdLove, Inc., 445 F. Supp. 3d 346, 356 23 24 25 26 17 Without any citation to the record, Houlihan asserts that there was a three-month delay between delivery of chicken 584 and Innovative’s notification. (Dkt. No. 176 at 7.) In its reply brief, Innovative provides evidence showing that the interim between delivery and notification was 54 days. (Dkt. No. 193.) ORDER C22-0296-JCC PAGE - 19 1 (N.D. Cal. 2020) (granting plaintiff’s summary judgment motion because defendant failed to 2 cite any evidence supporting its affirmative defense). 3 While the issue of timeliness is, on occasion, a question of fact, see Elec. Mirror, LLC v. 4 Avalon Glass & Mirror Co., 2018 WL 4488604, slip op. at 4 (W.D. Wash. 2018), in such cases, 5 the defendant typically raises the issue on its own motion for summary judgment, and not in 6 response to a plaintiff’s summary judgment motion. Furthermore, in more procedurally similar 7 cases, the defendant cited specific reasons for why the delay was unreasonable. See Glob. Cure 8 Med., 2020 WL 6075920, slip op. at 8 (noting that the parties raised several factual disputes that 9 could inform whether the delay may have been unreasonable). In the instant case however, 10 Houlihan has plainly failed to identify any evidence supporting an inference that the delay was 11 unreasonable. 12 Accordingly, summary judgment on Houlihan’s acceptance defense is DENIED and 13 Innovative’s motion for summary judgment is GRANTED with respect to its implied warranty 14 of fitness for a particular purpose claim (Dkt. No. 153.) 15 16 17 18 19 20 III. CONCLUSION For the foregoing reasons, the parties’ cross-motions for summary judgment (Dkt. Nos. 153, 162, 176) are GRANTED in part and DENIED in part, and the Court ORDERS as follows: 1. The Court DENIES all motions for summary judgment on Innovative’s express warranty claim; 2. Innovative’s motion for summary judgment (Dkt. No. 153) on its negligent 21 misrepresentation claim is GRANTED in part, specifically, on the limited basis of the 22 second, third, and fourth prongs; 23 24 25 26 3. Pilgrim’s motion for summary judgment (Dkt. No. 162) on Innovative’s breach of implied warranty claim is DENIED; 4. Pilgrim’s motion for summary judgment (Id.) on Innovative’s CPA claim is DENIED; ORDER C22-0296-JCC PAGE - 20 1 2 3 4 5. Innovative’s motion for summary judgment (Dkt. No. 153) on its CPA claim is GRANTED, at least as it relates to the first and third prongs; 6. Summary judgment on Pilgrim’s assumption of risk, superseding cause, and substantial modification defenses is DENIED; 5 7. Summary judgment on Houlihan’s acceptance defense is DENIED; 6 8. Innovative’s motion for summary judgment (Dkt. No. 153) on its breach of contract 7 8 9 10 11 12 13 claim against Houlihan is GRANTED; 9. Innovative’s motion for summary judgment (Id.) on its breach of express warranty claim against Houlihan is GRANTED; 10. Innovative’s motion for summary judgment (Id.) with respect to its breach of implied warranty of merchantability claim is GRANTED; 11. Innovative’s motion for summary judgment (Id.) with respect to its breach of implied warranty of fitness for a particular purpose is GRANTED. 14 15 16 17 DATED this 29th day of January 2024. 20 A 21 John C. Coughenour UNITED STATES DISTRICT JUDGE 18 19 22 23 24 25 26 ORDER C22-0296-JCC PAGE - 21

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