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Lopez v. Delta International Machinery Corp.

United States District Court, D. New Mexico

July 24, 2017

ISMAEL LOPEZ, Plaintiff,
v.
DELTA INTERNATIONAL MACHINERY CORPORATION; DELTA MACHINE COMPANY, INC.; ROCKWELL INTERNATIONAL CORPORATION; ROCKWELL AUTOMATION, INC.; STANLEY BLACK & DECKER, INC.; BLACK & DECKER U.S., INC.; PENTAIR, INC.; KEARNEY & TRECKER CORPORATION and GLH, LLC, Defendants.

          James Daniel Tawney Joseph G. Isaac Scherr & Legatae, P.L.L.C. El Paso, Texas Attorneys for the Plaintiff.

          Donald A. DeCandia Tomas J. Garcia Modrall, Sperling, Roehl, Harris & Sisk, P.A. Albuquerque, New Mexico Attorneys for Defendants Delta International Machinery Corporation, Stanley Black & Decker, Inc., Black & Decker (U.S.) Inc., Rockwell Automation, Inc., and Pentair, Inc.

          Stephen Simone Simone, Roberts & Weiss, P.A. Albuquerque, New Mexico Attorneys for Defendant GLH, L.L.C.

          MEMORANDUM OPINION [1]

THIS MATTER comes before the Court on: (i) Defendants Black & Decker (U.S.) Inc. and Stanley Black & Decker, Inc.'s Motion and Brief for Summary Judgment, filed December 29, 2015 (Doc. 48)(“MSJ”); and (ii) the Plaintiff's Rule 56(f) Motion in Opposition to Defendant Black & Decker (U.S.) Inc. and Stanley Black & Decker, Inc.'s Motion for Summary Judgment (Doc. 48), or Alternative Motion to Extend Time to File Response, filed January 15, 2016 (Doc. 53), and the Plaintiff's Rule 56(f) Motion in Opposition to Defendant Black & Decker (U.S.) Inc. and Stanley Black & Decker, Inc.'s Motion for Summary Judgment (Doc. 48), or Alternative Motion to Extend Time to File Response, filed January 15, 2016 (Doc. 54)(collectively, the “MSJ Response/Motion”).[2]The Court held a hearing on March 15, 2016. The primary issues are: (i) whether Defendants Black & Decker (U.S.), Inc. and Stanley Black & Decker, Inc. (the “Black & Decker Defendants”) are entitled to summary judgment on the Plaintiffs [sic] First Amended Complaint for Personal Injury Damages, filed December 23, 2015 (Doc. 47-1)(“Amended Complaint”)[3]; and (ii) whether the Court should deny the MSJ without prejudice to refiling after discovery concludes, or, in the alternative, whether the Court should grant Plaintiff Ismael Lopez a two-week extension to draft a response to the MSJ. The Court will grant the MSJ and deny Lopez' requests.

         Lopez brings this products liability action to recover damages for injuries he incurred while operating an unguarded power table saw at a plant in El Paso, Texas. To resolve the MSJ, the Court *must determine whether the Black & Decker Defendants are liable for Lopez' injuries based on three theories: (i) that they supplied the subject table saw which allegedly caused Lopez' injuries; (ii) that they are liable as the “alter egos” of the corporation that originally manufactured the table saw; and (iii) that they are liable as successors to the table saw's manufacturer. The Court concludes that the Black & Decker Defendants are entitled to judgment as a matter of law on all three theories, because (i) they did not supply the table saw; (ii) they do not sufficiently control the table saw's manufacturer such that the Court can pierce the corporate veil between them; and (iii) in acquiring the corporation that manufactured the table saw, they did not expressly assume that corporation's liabilities for the table saw. Accordingly, the Court will grant the MSJ.

         With respect to Lopez' request that the Court deny the MSJ without prejudice to refiling after discovery concludes, the Court concludes that further discovery will not yield facts that are material to Lopez' opposition to the MSJ. As for Lopez' alternative request for a two-week extension of time to respond to the MSJ, the Court concludes that, although Lopez has demonstrated “good cause” for an extension, his request is nevertheless moot, as he has since filed several briefs in opposition to the MSJ. The Court, accordingly, denies the requests in the MSJ Response/Motion.

         FACTUAL BACKGROUND

         The Court provides two factual background sections. First, the Court will contextualize the MSJ by briefly reviewing the Amended Complaint's factual allegations. Second, the Court will set forth the undisputed facts based on the parties' briefings for purposes of deciding the MSJ under rule 56(a) of the Federal Rules of Civil Procedure. Later, in its Analysis section, the Court will decide the undisputed facts' materiality.

         1. The Amended Complaint's Factual Allegations.

         Lopez is a resident of Sunland Park, New Mexico. See Amended Complaint ¶ 1, at 1. Black & Decker (U.S.), Inc. is a corporation organized under the laws of Maryland and doing business in the State of New Mexico. See Amended Complaint ¶ 3, at 1-2. Stanley Black & Decker, Inc. is a corporation organized under the laws of Connecticut and doing business in the State of New Mexico. See Amended Complaint ¶ 2, at 1. The events giving rise to this litigation occurred in El Paso, Texas. See Amended Complaint ¶ 5, at 2.

         On August 23, 2012, Lopez was sawing wood for 84 Lumber[4] in El Paso with an unguarded table power saw. See Amended Complaint ¶ 5, at 2. During the job, the blade jumped, [5] and severed Lopez' left middle and index fingers. See Amended Complaint ¶ 5, at 2. Lopez alleges that the table power saw was “manufactured and put in the stream of commerce by the Black & Decker Defendants.” Amended Complaint ¶ 5, at 2. Lopez accordingly brings product liability claims against the Black & Decker Defendants. See Amended Complaint ¶ 6, at 2-3.

         2. Undisputed Facts.[6]

         “The events giving rise to this lawsuit . . . occurred entirely in El Paso, Texas.” MSJ ¶ 11, at 4 (asserting this fact). See MSJ Response/Motion at 1-16 (not disputing this fact); Suppl. Brief at 1-8 (not disputing this fact).

         The Black & Decker Defendants “did not design, manufacture, market or sell the subject table saw.” MSJ ¶ 1, at 3 (asserting this fact). See MSJ Response/Motion at 1-16 (not disputing this fact); Suppl. Brief at 1-8 (not disputing this fact). “The subject table saw, a Delta Unisaw Model 36-812, serial number 01E31821, was manufactured by Delta International Machinery Corp. [][7] in May of 2001.” MSJ ¶ 2, at 3 (asserting this fact). See MSJ Response/Motion at 1-16 (not disputing this fact); Suppl. Brief at 1-8 (not disputing this fact). On July 16, 2004, [8] The Black & Decker Corporation executed an agreement with Pentair, Inc.[9] to acquire of Pentair, Inc.'s and its affiliates' certain “Intellectual Property” and “all of the[ir] outstanding shares of capital stock, membership interests and other ownership interests (the ‘Equity Interests')” in several “Transferred Subsidiaries.” Suppl. Brief ¶ 12, at 4 (asserting this fact)(quoting Purchase Agreement at 1).[10] One of the transferred subsidiaries in which The Black & Decker Corporation acquired equity interests is Delta Intl. See MSJ ¶ 3, at 3 (asserting this fact); MSJ Response/Motion at 1-16 (not disputing this fact); Suppl. Brief at 1-8 (not disputing this fact).[11] “Delta continues to exist as a separate and distinct legal entity” and, as of 2004, “as an indirect subsidiary of The Black & Decker Corporation.” MSJ ¶ 3, at 3 (asserting this fact). See MSJ Response/Motion at 1-16 (not disputing this fact); Suppl. Brief at 1-8 (not disputing this fact).[12]

         In the Purchase Agreement, The Black & Decker Corporation and its “Affiliates” agree to purchase from Pentair, Inc. and its “Affiliates designated on Schedule 1.1 (each a ‘Seller'[)] . . . the Equity Interests” and “the U.S. Intellectual Property[.]” Suppl. Brief ¶ 13, at 4-5 (asserting this fact)(emphases omitted)(quoting Purchase Agreement ¶ 1.1, at 1). See Suppl. Brief Response at 1-5 (not disputing this fact). Schedule 1.1, in turn, lists Pentair Tools Group, Inc. (DE) -- Pentair, Inc.'s affiliate -- as the “Seller” of “Equity Interests” in Delta Intl., and Delta Acquisition Corp. -- The Black & Decker Corporation's affiliate -- as the “Purchaser” of those interests. Schedules to Purchase Agreement Between The Black & Decker Corporation and Pentair, Inc. (the “Agreement”) at 2, filed July 12, 2016 (Doc. 90-2)(“Schedules”).[13] Schedule 3.1(c) specifies that Delta Intl. is a wholly owned subsidiary of Pentair Tools Group, Inc. (DE), and that Delta Intl. has 5, 000 authorized shares and 1, 000 outstanding shares of common stock or their “[e]quivalent.” Schedule 3.1(c), at 4.[14] The Schedules, moreover, outline the intellectual property -- including trademark and patent rights -- which transfers with the Purchase Agreement. See Schedule 3.1(r), at 33-91.[15] Schedule 1.1 names The Black & Decker Corporation as the “Purchaser” of the “U.S. Trademark Rights” from “All Holders of U.S. Trademark Rights, ” and Black & Decker (U.S.), Inc. as the “Purchaser” of the “U.S. Patent Rights” from “All U.S. Holders of U.S. Patent Rights.” Schedule 1.1, at 2.[16]

         In its “Definitions” section, the Purchase Agreement states that “‘Affiliate' shall have the meaning ascribed to such term in Rule 12b-2 of the Securities Exchange Act of 1934, as amended.” Suppl. Brief ¶ 14, at 5 (asserting this fact)(emphasis omitted)(quoting Purchase Agreement ¶ 11.17, at 52).[17] Rule 12b-2, in turn, defines “Affiliate” as “a person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the person specified.” Suppl. Brief ¶ 15, at 5 (asserting this fact)(emphases and footnote omitted)(quoting 17 C.F.R. § 240.12b-2).[18]

         The Purchase Agreement's “Purchase Price” is $775, 000, 000.00, subject to “[a]n increase equal to the amount, if any, by which the Net Asset Value as reflected on the Estimated Closing Statement is greater than the Agreed Base Equity, ” and “[a] decrease equal to the amount, if any, by which the Net Asset Value as reflected on the Estimated Closing Statement is less than the Agreed Base Equity.” Purchase Agreement ¶ 2.1, at 1-2.[19] The Purchase Agreement provides that, five days before closing, Pentair, Inc. shall prepare a reasonable “estimate of the Net Asset Value to be reflected on the Closing Statement and the Purchase Price . . . .” Purchase Agreement ¶ 2.2, at 2.[20]Within forty-five days after closing, Pentair, Inc. shall prepare an “unaudited consolidated combined balance sheet of the Subsidiaries (the ‘Closing Statement'), which shall set forth the Net Asset Value as of the Closing Date . . . .” Purchase Agreement ¶ 2.2, at 2.[21]

         In the Purchase Agreement, The Black & Decker Corporation, as the “Buyer, ” makes certain “Representations and Warranties” to Pentair, Inc., the transferred subsidiaries' “Parent, ” including that it has “‘Authority' to make the ‘valid and binding agreements enforceable in accordance with their respective terms[.]'” Suppl. Brief ¶ 16, at 5-6 (asserting this fact)(emphases omitted)(quoting Purchase Agreement ¶ 3.2, at 14). See Suppl. Brief Response at 1-5 (not disputing this fact). The Purchase Agreement provides that The Black & Decker Corporation shall “indemnify” Pentair, Inc. for “all Losses . . . resulting from [] the breach of the representations and warranties of [The Black & Decker Corporation] . . . .” Suppl. Brief ¶ 18, at 6 (asserting this fact)(alterations added)(emphasis omitted)(quoting Purchase Agreement ¶ 8.2, at 41). See Suppl. Brief Response at 1-5 (not disputing this fact). Pentair, Inc. also makes certain “Representations and Warranties” to The Black & Decker Corporation. Purchase Agreement ¶ 3.1, at 5-13.[22] In the event of “Losses . . . resulting from [] any breach of any of the representations and warranties of [Pentair, Inc.] . . . or [] any Indemnified Liability, ” the Purchase Agreement provides that Pentair, Inc. shall indemnify The Black & Decker Corporation. Purchase Agreement ¶ 8.1, at 39-40 (alterations added).[23] In its “Definitions” section, the Purchase Agreement defines “Indemnified Liabilities” to include “all liabilities ‘of the Subsidiaries' other than ‘Transferred Liabilities.'” Suppl. Brief Response at 3 (asserting this fact)(quoting Purchase Agreement ¶ 11.17, at 56). See Plaintiff's Reply in Support of His Supplemental Brief in Support of His Rule 56(f) Motion in Opposition to the Black & Decker Defendants' Motion for Summary Judgment (Doc. 48), or Alternative Motion to Extend Time to File Response (Doc. 54) at 1-12, filed August 12, 2016 (Doc. 95)(“Suppl. Brief Reply”)(not disputing this fact).

         The Purchase Agreement defines “Transferred Liabilities” to include, among other things, any “liabilities and obligations of the Subsidiaries arising out of bodily injury, death or other damage relating to products manufactured prior to the Closing, including all Third Party Claims relating to such bodily injury, death and other damage, whether or not such Third Party Claims are successful . . . .” Suppl. Brief ¶ 19, at 6-7 (asserting this fact)(emphases omitted)(quoting Purchase Agreement ¶ 11.17, at 60-61). See Suppl. Brief Response at 1-5 (not disputing this fact). The “Subsidiaries” whose liabilities transfer with the Purchase Agreement include “any corporation or entity engaged in the Business of which securities or other ownership interests having ordinary voting power to elect a majority of directors or other persons performing similar functions are directly or indirectly owned by [Pentair, Inc.] . . . .” Suppl. Brief ¶ 21, at 7 (asserting this fact)(alteration added)(emphases omitted)(quoting Purchase Agreement ¶ 11.17, at 59). See Suppl. Brief Response at 1-5 (not disputing this fact). With respect to these subsidiaries' businesses, the Purchase Agreement provides that The Black & Decker Corporation “will be able to continue to conduct the Business after Closing in the manner in which the Business has been conducted by the Subsidiaries.” Purchase Agreement ¶ 3.1, at 9-10.[24]

         The Purchase Agreement provides that its provisions “shall be construed and interpreted according to the internal laws of the State of Delaware, excluding any choice of law rules that may direct the application of the laws of another jurisdiction.” Purchase Agreement ¶ 11.4, at 49.[25]

         In March 2010, “The Black & Decker Corporation merged with a wholly owned subsidiary of The Stanley Works and The Black & Decker Corporation became a wholly owned subsidiary of The Stanley Works.” MSJ ¶ 5, at 3 (asserting this fact). See MSJ Response/Motion at 1-16 (not disputing this fact); Suppl. Brief at 1-8 (not disputing this fact). “The Stanley Works changed its name to Stanley Black & Decker, Inc. on March 12, 2010.” MSJ ¶ 5, at 3 (asserting this fact). See MSJ Response/Motion at 1-16 (not disputing this fact); Suppl. Brief at 1-8 (not disputing this fact).[26]“Stanley Black & Decker, Inc. does not design, manufacture or sell Delta Unisaws, it was not [in] existence in 2001, and it did not design, manufacture, or sell the subject Delta Unisaw Model 36-812, which was manufactured in 2001.” MSJ ¶ 9, at 4 (asserting this fact). See MSJ Response/Motion at 1-16 (not disputing this fact); Suppl. Brief at 1-8 (not disputing this fact).

         “Black & Decker (U.S.) Inc. has no corporate relationship with Delta other than that, as of October of 2004, both of these separate and distinct entities are both subsidiaries of The Black & Decker Corporation.” MSJ ¶ 7, at 3 (asserting this fact). See MSJ Response/Motion at 1-16 (not disputing this fact); Suppl. Brief at 1-8 (not disputing this fact).[27] “Black & Decker (U.S.) Inc. did not design, manufacture or sell Delta Unisaws at any time prior to October of 2004 and it did not design, manufacture, or sell the subject Delta Unisaw Model 36-812, which was manufactured in 2001.” MSJ ¶ 10, at 4 (asserting this fact). See MSJ Response/Motion at 1-16 (not disputing this fact); Suppl. Brief at 1-8 (not disputing this fact).

         PROCEDURAL BACKGROUND

         Lopez commenced this action in the Third Judicial District Court, Dona Ana County, State of New Mexico on January 13, 2015. See Complaint at 1. In his original Complaint, Lopez named seven Defendants, along with a variety of related entities, whom he believed were responsible for his injury. See Complaint ¶¶ 3-9, at 2-6. The original Complaint appeared to assert two claims: (i) strict products liability, see Complaint ¶ 14, at 7-8; and (ii) negligence, including one or more of sixteen alternative theories, [28] see Complaint ¶ 23, at 9-10. Lopez sought compensatory damages for medical care, lost wages, inability to perform household duties, and pain and suffering. See Complaint ¶¶ 24-26, at 10. Lopez also requested punitive damages based on the Defendants' alleged “reckless, willful, fraudulent, wanton or in bad faith conduct.” Complaint ¶ 27, at 10-11. On March 5, 2015, the Black & Decker Defendants removed the case to federal district court pursuant to 28 U.S.C. §§ 1332, 1441, and 1446. See Notice of Removal at 1, filed March 5, 2015 (Doc. 1).

         On September 18, 2015, the Court dismissed from the case all Defendants -- except for the two Black & Decker Defendants -- for lack of personal jurisdiction. See Sept. 18, 2015, Hearing Minutes at 1. On December 23, 2015, Lopez moved to file an Amended Complaint asserting claims against only the Black & Decker Defendants, see Motion to Amend at 1, and, on January 8, 2016, the Court granted the motion, see Amendment Order at 1. The Amended Complaint asserts the same two claims as the original Complaint: (i) negligence, including sixteen alternative theories; and (ii) strict products liability.[29] See Amended Complaint ¶ 6, at 2-3. The Amended Complaint also seeks the same compensatory and punitive remedies as the original Complaint. See Amended Complaint ¶¶ 7-11, at 3-4.

         1. The MSJ.

         On December 29, 2015, the Black & Decker Defendants moved for summary judgment. See MSJ at 1. The Black & Decker Defendants' central thesis is that “they did not design, manufacture, market, or sell the subject table saw, ” and that “they are not subject to successor liability for any acts or omissions on the part of their predecessor under the law applicable to this case.” MSJ at 1-2. After reviewing the undisputed facts and the legal standard for a summary judgment motion, see MSJ at 2-4, the Black & Decker Defendants advance two primary arguments: (i) that they did not supply the subject table saw; and (ii) that they are not subject to successor liability, see MSJ at 4-7.

         First, the Black & Decker Defendants argue that, under New Mexico law, a products liability claim requires a showing “that the defendant actually supplied the product alleged to have caused the plaintiff's injury.” MSJ at 4 (citing, among others, Trujillo v. Berry, 1987-NMCA-072, ¶ 8, 738 P.2d 1331). Thus, they argue, Lopez must establish that they: “(1) designed the product in question, (2) manufactured the product in question, (3) marketed the product in question, (4) sold or leased the product in question, or (5) owed Plaintiff a legal duty.” MSJ at 5 (citing Pacific Indem. Co. v. Therm-O-Disc, Inc., 476 F.Supp.2d 1216, 1223-24 (D.N.M. 2006)(Hansen, J.)). They assert that, here, they “did not design, manufacture, market or sell the subject table saw at issue in this lawsuit.” MSJ at 5 (citing MSJ ¶ 1, at 2; id. ¶¶ 9-10, at 4). As a result, they conclude, “the Black & Decker Defendants cannot be held liable to Plaintiff under any theory.” MSJ at 5.

         Second, the Black & Decker Defendants contend that, because the events giving rise to this litigation occurred in Texas, “Texas law applies to determining the question of successor liability . . . .” MSJ at 5 (citing Guidance Endodontics, LLC v. Dentsply Int'l, Inc., 749 F.Supp.2d 1235, 1258 (D.N.M. 2010)(Browning, J.)). They stress that Texas “‘strongly embraces the non-liability rule' for corporate successors, ” MSJ at 6 (citing E-Quest Mgmt., LLC v. Shaw, 433 S.W.3d 18, 23 (Tex. App. 2013); Lockheed Martin Corp. v. Gordon, 16 S.W.3d 127, 139 (Tex. App. 2000)), and argue that a successor corporation “incurs no liability of the predecessor unless the successor expressly assumes that liability, ” MSJ at 6 (emphasis omitted)(citing Tex. Bus. Orgs. Code. Ann. § 10.254 (Vernon Supp. 2012); Lockheed Martin Corp. v. Gordon, 16 S.W.3d at 135). They contend that the only other circumstance in which a successor corporation incurs the predecessor's liabilities is when “the acquisition results from a fraudulent conveyance to escape liability for the debts or liabilities of the predecessor.” MSJ at 6 (citing United States v. Americus Mortg. Corp., 2013 U.S. Dist. LEXIS 132150, at *4 (S.D. Tex. 2013)(Hanks, M.J.)).

         Turning to this case's facts, the Black & Decker Defendants aver that they “did not expressly assume any of Delta's liabilities in connection with the subject table saw.” MSJ at 7 (citing MSJ ¶¶ 4, 6, & 8, at 3). Further, they argue, “The Black & Decker Corporation acquired Delta nearly eight years before the events giving rise to this lawsuit.” MSJ at 7 (emphasis in original)(citing MSJ ¶ 3, at 3; Complaint ¶ 13, at 7). They conclude that “there is no basis on which Plaintiff could argue that the Black & Decker Defendants fraudulently acquired Delta's assets to avoid liability for the injuries alleged . . . that were caused by a table saw designed, manufactured, and sold by Delta.” MSJ at 7.

         2. The MSJ Response/Motion.

         Lopez responded to the MSJ on January 15, 2016. See MSJ Response/Motion at 1. Rather than engage the MSJ's merits, Lopez makes two alternative requests. First, Lopez requests that the Court, pursuant to rule 56(d) of the Federal Rules of Civil Procedure, [30] deny the MSJ without prejudice to refiling after discovery concludes.[31] See MSJ Response/Motion at 5-13. Second, in the alternative, Lopez requests that the Court, pursuant to rule 6(b)(1)(A) of the Federal Rules of Civil Procedure, grant him a two-week extension of time to draft a brief in opposition to the MSJ's merits. See MSJ Response/Motion at 13-15. The Court will review these two requests in turn.

         a. Lopez' Rule 56(d) Motion.

         Lopez notes that, under rule 56(d), a court may deny a summary judgment motion “[i]f a party opposing the motion . . . shows by affidavit that, for specified reasons, it cannot present facts essential to justify its opposition[.]” MSJ Response/Motion at 5 (quoting Fed.R.Civ.P. 56(d)). Lopez contends that “[d]iscovery is strongly favored and generally ‘denying the right to have full discovery on all pertinent issues before a summary judgment is granted would be error, particularly in the face of a Rule 56(d) affidavit.'” MSJ Response/Motion at 5 (quoting Miller v. United States, 710 F.2d 656, 666 (10th Cir. 1983)). Lopez argues that, here, he “has not yet had a meaningful opportunity to conduct discovery on issues relevant to the grounds asserted in the Black & Decker Defendants' motion, ” including deposing the “Defendants' Rule 30(b)(6) witness(es), as well as meaningful discovery of the relevant documents relating to whether the Black & Decker Defendants placed the subject table saw into the stream of commerce and/or whether the Black & Decker Defendants may have potential successor liability . . . .” MSJ Response/Motion at 6 (citing Affidavit of Joseph G. Isaac in Support of Plaintiff's Rule 56(f) Motion in Opposition to Defendants Black & Decker (U.S.) Inc. and Stanley Black & Decker, Inc.'s Motion for Summary Judgment (Doc. 48) or Alternative Motion to Extend Time to File Response (executed January 15, 2016) at 1-2, filed January 15, 2016 (Doc. 53-1)(“Isaac Aff.”)).

         Lopez then responds to the MSJ's contention that Texas law governs the successor-liability issue. See MSJ Response/Motion at 6. Lopez avers that “successor liability does not involve the underlying facts that give rise to a defendant's potential liability for a defective product, but instead addresses matters of corporate liability related to, but separate and apart from the underlying facts, as several New Mexico courts have indicated in related issues.” MSJ Response/Motion at 6. Lopez notes, as an example, that, in Billingsley v. JEA Co., Inc., 1992-NMCA-058, 836 P.2d 87, the Court of Appeals of New Mexico applied Arizona law to a workers' compensation claim stemming from an Arizona truck driver's injury at a truck stop in Gallup, New Mexico. See MSJ Response/Motion at 6 (citing Billingsley v. JEA Co., Inc., 1992-NMCA-058, ¶ 2, 836 P.2d at 89). Lopez notes that, despite that the injury occurred in New Mexico, the Court of Appeals of New Mexico applied “Arizona law, . . . because Arizona had the greater interest in the related but separate issue of whether the injured worker's claim was limited or modified under the relevant worker's compensation laws.” MSJ Response/Motion at 6 (citing Billingsley v. JEA Co., Inc., 1992-NMCA-058, ¶ 11, 836 P.2d at 90). Lopez avers that this approach accords with that of other states which, “like New Mexico, generally apply the lex loci delicti choice-of-law rule as to torts, [but] have similarly recognized that questions arising under a legal issue related to, but separate and apart from, the underlying facts of a claim, may warrant a different choice-of-law rule.” MSJ Response/Motion at 7 (alteration added)(citing Shaw v. Lyton Constr. Co., Inc., 872 P.2d 1059, 1063-64 (Utah Ct. App. 1994); Braxton v. Anco Elec., Inc., 409 S.E.2d 914, 915-16 ( N.C. 1991); Hauch v. Connor, 453 A.2d 1207, 1210 (Md. 1983)).

         According to Lopez, “the issue of a corporation's potential successor liability in a products liability claim is a ‘hybrid' question that ‘present[s] unique policy questions since the process is neither tort nor contract' but a hybrid of contract and corporate law.” MSJ Response/Motion at 9. Lopez asserts that “[t]his issue has particular significance in [this] case since many jurisdictions, including New Mexico, appear to have adopted broader rules to protect its citizens from injury due to defective products than has Texas.” MSJ Response/Motion at 9. See id. at 9-10 (collecting New Mexico court cases which, Lopez reasons, demonstrate that New Mexico courts are more protective of citizens than are Texas courts). As an example, Lopez notes that Pennsylvania courts use the “product line” exception to impose tort liability on successor corporations. MSJ Response/Motion at 10 (citing Dawejko v. Jorgensen Steel Co., 434 A.2d 106, 107-12 (Pa. Super. 1981)). Lopez asserts that, under this exception, “a successor corporation may acquire liability when (1) the purchase expressly or impliedly agrees to assume obligations, (2) the transaction amounts to a consolidation or merger, (3) the transaction is merely a ‘continuation' of the former business, or (4) the transaction is fraudulently entered into to escape liability.” MSJ Response/Motion at 10 (quoting Dawejko v. Jorgensen Steel Co., 434 A.2d at 107). Lopez adds that the product-line exception is “fact-specific and based on principles of equity[.]” MSJ Response/Motion at 11.

         Here, Lopez argues, “the lex loci delicti choice-of-law rule [may] point[] to Texas law to determine the underlying question of whether the unguarded table power saw in question was defective as marketed, designed, and/or manufactured[.]” MSJ Response/Motion at 12. Lopez reasons, however, that “the related but separate issue of a corporation's potential successor liability should not be controlled by lex loci delicti but by other more relevant policy considerations in order to more fully implement ‘the social policies underlying strict product liability[.]'” MSJ Response/Motion at 12. Lopez posits that this case's facts warrant application of the product-line exception, which “focus[es] on corporate activity and equitable principles rather than corporate form.” MSJ Response/Motion at 13 (emphasis in original). Lopez stresses that, “at a minimum, whether the Black & Decker Defendants may have potential successor liability . . . is an issue of fact that should further be developed in discovery of the case.” MSJ Response/Motion at 13. Lopez thus requests that the Court deny the MSJ without prejudice to refiling after discovery concludes. See MSJ Response/Motion at 13.

         b. Lopez' Alternative Rule 6(b) Motion.

         In the alternative, Lopez requests that the Court grant him a two-week extension of time to respond to the MSJ's merits. See MSJ Response/Motion at 13. Lopez notes that rule 56(d) “permits a court to ‘issue any other just order' when a party submits a Rule 56([d]) motion and affidavit in response to a motion for summary judgment.” MSJ Response/Motion at 13. Lopez notes that rule 6(b)(1)(A), in turn, allows a court, “for good cause, [to] extend the time for when an act may or must be done within a specified time ‘with or without motion or notice if the court acts, or if a request is made, before the original time or its extension expires . . . .'” MSJ Response/Motion at 14-15. Lopez notes that rule 6(b)(1)(B) “permits an extension of time . . . upon a further showing of excusable neglect.” MSJ Response/Motion at 15 (citing Fed.R.Civ.P. 6(b)(1)). Lopez asserts that these “are equitable standards that require[] a court to consider all relevant circumstances, and may be found where the relevant circumstances reveal inadvertent delays, mistakes, or carelessness, so long as a movant shows good faith and a reasonable basis for noncompliance.” MSJ Response/Motion at 15 (citing In re Paine-Webber LP's Litig., 147 F.3d 132, 135 (2d Cir. 1998); Bennett v. City of Holyoke, 362 F.3d 1, 5 (1st Cir. 2004)).

         Here, Lopez notes, the Black & Decker Defendants filed their MSJ on December 29, 2015, “in the middle of the traditional holiday season, ” and, a few days earlier, Lopez' “lead counsel . . . announced his intention to leave the law firm” representing Lopez. MSJ Response/Motion at 13-14 (citing Isaac Aff. at 2). Lopez therefore contends that he “would be unfairly prejudiced in having to both invoke [his] rights under Rule 56([d]) and be required to draft a full-blown response on the merits to the Black & Decker Defendants' motion for summary judgment based only on partial discovery completed to date.” MSJ Response/Motion at 14. Lopez posits that the Black & Decker Defendants' only reason to “force Plaintiff to incur the time and expense to develop a response to their motion . . . on the merits based on partial discovery completed” is to “seek an improper ‘tactical' advantage by requiring Plaintiff to devote time and resources to respond, ” thus “tak[ing] time away from Plaintiff's efforts to complete the deposition of Defendant's Rule 30(b)(6) witness(es) and take other measures needed to undertake and to complete other discovery as needed in this case within the discovery termination date of May 23, 2016.” MSJ Response/Motion at 15. For these reasons, Lopez requests that the Court grant him a two-week extension of time to draft a response to the MSJ's merits. See MSJ Response/Motion at 15.

         3. The MSJ Reply.

         The Black & Decker Defendants replied to the MSJ Response/Motion on January 29, 2016. See Defendants Black & Decker (U.S.) Inc. and Stanley Black & Decker, Inc.'s Reply in Support of their Motion for Summary Judgment at 1, filed January 29, 2016 (Doc. 58)(“MSJ Reply”). The Black & Decker Defendants note that Lopez does not dispute the MSJ's proffer of undisputed facts; rather, they contend, Lopez “argues that he has not had an opportunity to conduct discovery and he asks the Court to deny the [MSJ] on that basis.” MSJ Reply at 1 (citing MSJ Response/Motion at 5-6). According to the Black & Decker Defendants, Lopez “fails to tell the Court what supporting facts he believes are essential to his opposition and what specific reasons prevent him from presenting those facts to the Court as required by Fed.R.Civ.P. 56(d).” MSJ Reply at 1-2 (citing MSJ Response/Motion at 5-6). Lopez' inability to identify any supporting facts, the Black & Decker Defendants posit, is “due to the absence of any such facts, as established by the straightforward record that supports the [MSJ].” MSJ Reply at 2. They assert that “[n]o amount of discovery can change” this record. MSJ Reply at 2.

         The Black & Decker Defendants advance three primary arguments. First, they contend that Lopez fails to establish a genuine dispute as to a material fact. See MSJ Reply at 2-3. They argue that, under rule 56(c)(1), a “party opposing summary judgment must make an affirmative showing through specific evidentiary facts that a material fact issue is in dispute.” MSJ Reply at 2 (citing Fed.R.Civ.P. 56(c)(1)). Here, they assert, Lopez “fails to cite any materials in the record to dispute the fact that the Black & Decker Defendants did not design, manufacture, market or supply the subject table saw at issue in this lawsuit.” MSJ Reply at 3. They note that Lopez, instead, contends that he needs additional time to “conduct discovery on issues relevant to the grounds asserted” in the MSJ. MSJ Reply at 3 (citing MSJ Response/Motion at 6). They further note that Lopez “merely states his unsubstantiated belief that ‘the evidence obtained in discovery will create material facts to demonstrate that the Black & Decker Defendants may be potentially liable . . . .'” MSJ Reply at 3 (quoting Isaac Aff. at 2). According to the Black & Decker Defendants, Lopez “essentially restat[es] the allegations and legal standard set forth in his Complaint.” MSJ Reply at 3 (citing Complaint ¶ 14, at 7-8). They contend that “‘it is not enough for the party opposing a properly supported motion for summary judgment to rest on mere allegations or denials of his or her pleadings.'” MSJ Reply at 3 (brackets omitted)(quoting Wells Fargo Bank v. Se. N.M. Affordable Hous. Corp., 877 F.Supp.2d 1115, 1131 (D.N.M. 2012)(Browning, J.)).

         Second, the Black & Decker Defendants argue that Lopez fails to establish a basis for relief under rule 56(d). See MSJ Reply at 3-10. They stress that rule 56(d) permits a court to defer its decision on a summary judgment motion “if the party opposing the motion ‘shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition.'” MSJ Reply at 4 (emphasis in original)(brackets omitted)(quoting Fed.R.Civ.P. 56(d)). However here, they argue, Lopez “does not identify the probable facts he expects to obtain in discovery but which are now unavailable to him, nor does he explain what steps he has taken to obtain these facts.” MSJ Reply at 4 (citing Garcia v. U.S. Air Force, 533 F.3d 1170, 1179 (10th Cir. 2008)). Indeed, they contend, Lopez “has in fact had ample opportunity in this case to discover facts material to the [MSJ.]” MSJ Reply at 4. See id. at 4-5 (noting that Lopez served twenty-one interrogatories and seventy-one requests for production, and that the Black & Decker Defendants already responded). As to Lopez' assertion that he needs time to depose rule 30(b)(6) witnesses, see MSJ Response/Motion at 4-6, the Black & Decker Defendants state that Lopez has not asked them to identify any such witnesses, nor has he “served notice of a 30(b)(6) deposition stating with reasonable particularity the matters for examination as required by the Federal Rules of Civil Procedure, ” MSJ Reply at 5-6 (citing Fed.R.Civ.P. 30(b)(6)). In short, they contend that Lopez “has had ample time to attempt through discovery to generate some basis for keeping the Black & Decker Defendants harnessed to this litigation.” MSJ Reply at 6. They assert that it is “unfair” for Lopez to “wait[] for a very predictable dispositive motion and [] respond[] by essentially saying ‘maybe something will turn up in discovery.'” MSJ Reply at 6 (alterations added).

         The Black & Decker Defendants contend, moreover, that the Court should deny Lopez' rule 56(d) request, because Lopez “has not established how any specific evidence he seeks will create a material issue of fact . . . .” MSJ Reply at 7. They stress that rule 56(d)'s “provision for discovery of facts ‘essential to justify' opposition to summary judgment extends only to evidence that is material to the motion.” MSJ Reply at 7 (emphasis in original)(citing 11 J. Moore et al., Moore's Federal Practice § 56.102[3] (3d ed. 2015); Bldg. & Constr. Dep't v. Rockwell Int'l Corp., 7 F.3d 1487, 1496 (10th Cir. 1993)). Here, they argue, the Isaac Aff., upon which Lopez' rule 56(d) motion rests, “does not contain a statement of how the evidence sought . . . will create material issues of fact as to the matters raised in the [MSJ.]” MSJ Reply at 8 (citing Isaac Aff. at 1). They note that Lopez does not argue that “if he were able to discover specific additional facts he would be able to prove the contrary of the Black & Decker Defendants' showing, i.e., that the[y] . . . did in fact design, manufacture, market, or supply the subject table saw at issue in this case.” MSJ Reply at 8. Rather, they argue, Lopez' “Rule 56(d) affidavit only sets forth vague assertions that additional discovery will produce needed, but unspecified facts.” MSJ Reply at 8 (citing Isaac Aff. at 2). They argue that such vague assertions do not demonstrate that further discovery would establish a genuine issue of material fact. See MSJ Reply at 8-9.

         Finally regarding Lopez' rule 56(d) motion, the Black & Decker Defendants note that Lopez “indicates an intention to pursue further discovery in order to learn about the ‘potential liability of . . . other parties[.]” MSJ Reply at 9 (emphasis in original)(citing Isaac Aff. at 1). In their view, rule 56(d) does not “permit[] a plaintiff to hold an improperly named defendant captive in order to seek discovery about other potentially liable defendants.” MSJ Reply at 9. They assert that “[s]uch an interpretation of Rule 56(d) would contravene both basic fairness and federal caselaw.” MSJ Reply at 9 (citing Reflectone, Inc. v. Farrand Optical Co., 862 F.2d 841, 843 (11th Cir. 1989)). Indeed, they aver, “courts routinely deny requests where . . . a party seeks to use Rule 56(d) as a platform to learn the identity of other potential defendants, without carrying his or her burden to establish how the discovery sought would create a genuine issue of material fact . . . .” MSJ Reply at 9 (citing, among others, Free v. City of Seattle, 177 F. App'x 650, 651-52 (9th Cir. 2006)).

         Third, the Black & Decker Defendants contend that Lopez' legal argument about applicable choice-of-law principles does not create a genuine issue of fact. See MSJ Reply at 10. Regardless, they argue that Texas law applies to the successor-liability issue. See MSJ Reply at 11. They reason that the Complaint “sounds in tort, the injury occurred in Texas, and New Mexico courts apply the doctrine of lex loci delicti commissi . . . .” MSJ Reply at 11 (citing MSJ at 5). Here, they argue, the undisputed facts demonstrate that “neither exception to the general rule of corporate successor nonliability under Texas law” -- i.e., when a successor corporation expressly assumes liabilities, or in cases of fraud -- applies. MSJ Reply at 11 (citing MSJ at 7). As to Lopez' assertion that successor liability is a “hybrid” issue, they argue that Lopez cites no legal authority describing such liability as a “‘hybrid question' for purposes of choice-of-law analysis or stating what different choice-of-law rule applies.” MSJ Reply at 11 (citing MSJ Response/Motion at 9). They contend that, similarly, Lopez cites no “authority from New Mexico, the District of New Mexico, or the Tenth Circuit to show that New Mexico courts would not apply the doctrine of lex loci delicti to determine the conflict-of-law question of successor corporate liability in this case.” MSJ Reply at 12. Further, they argue, Lopez “filed a workers' compensation claim in Texas in connection with his workplace injury in Texas, ” meaning that, “even under Plaintiff's own analysis . . ., Texas law should apply to the conflict-of-laws issue [] because Plaintiff was employed in Texas, he was covered under the Texas workers' compensation statute, and he filed his workers' compensation claim in Texas.” MSJ Reply at 13 (citing Shaw v. Lyton Constr. Co., Inc., 872 P.2d at 1063-64). They conclude that, “[n]otwithstanding Plaintiff's purely legal argument concerning the choice-of-law rules applicable to this case . . ., Plaintiff sets forth no factual issues over which there is a genuine dispute.” MSJ Reply at 13 (citing MSJ Response/Motion at 6-12).

         4. The Rule 6(b) Motion Response.

         On January 29, 2016, simultaneously with their MSJ Reply, the Black & Decker Defendants also filed a separate brief responding to Lopez' rule 6(b) motion. See Defendants Black & Decker (U.S.) Inc. and Stanley Black & Decker, Inc.'s Response in Opposition to Plaintiff's Motion to Extend Time to File Response at 1, filed January 29, 2016 (Doc. 59)(“Rule 6(b) Motion Response”). The Black & Decker Defendants argue that Lopez fails to show good cause for an extension of time to respond to the MSJ, as rule 6(b) requires. See Rule 6(b) Motion Response at 2. First, they assert that, although they filed the MSJ during the holiday season, Lopez “fails to explain why he could not fully respond to the . . . [MSJ] within the standard period of time allowed by the Local Rules for the District of New Mexico.” Rule 6(b) Motion Response at 2 (citing D.N.M.LR-Civ. 7.4). Second, they aver that, although Lopez' counsel apparently “announced his intention” to leave his firm, he is “still listed as counsel of record for Plaintiff” and has “not filed a motion to withdraw as Plaintiff's counsel from this case.” Rule 6(b) Motion Response at 3 (citing D.N.M.LR-Civ. 83.8). Regardless, they argue, Lopez has had other counsel of record since the Black & Decker Defendants removed the case to federal district court in early 2015. See Rule 6(b) Motion Response at 3. They contend that either of Lopez' counsel of record capably can draft a timely response to the MSJ. See Rule 6(b) Motion Response at 3. Third, they assert that, while Lopez is correct that drafting a response to the MSJ's merits would be burdensome, he “fails to demonstrate why his compliance with the ordinary and straightforward procedures set forth in Rule 56 . . . for responding to a motion for summary judgment creates an unfair prejudice in this case.” Rule 6(b) Motion Response at 4 (emphasis in original)(citing Progressive Nw. Ins. Co. v. Weed Warrior Servs., 2008 U.S. Dist. LEXIS 125085, at *1 (D.N.M. 2008)(Hererra, J.)).

         The Black & Decker Defendants then turn to rule 56's “specific requirements for stating and responding to a motion for summary judgment.” Rule 6(b) Motion Response at 4. They note that, while the MSJ sets forth eleven undisputed material facts, Lopez “failed to cite any particular parts of the record to establish a genuine dispute as to any of those facts, or show that the materials relied upon by the Black & Decker Defendants do not actually establish the absence of any genuine dispute of fact, ” as rule 56 requires. Rule 6(b) Motion Response at 5-6. Further, they note, although rule 56 anticipates that a party may not yet have facts available to respond to a summary judgment motion, Lopez fails to “present any probable facts essential to [his] opposition to the [MSJ] . . ., nor does [he] specify the reasons why such facts are unavailable to [him], ” as rule 56(d) requires. Rule 6(b) Motion Response at 5 (citing Garcia v. U.S. Air Force, 533 F.3d at 1179). Finally, they contend, rule 56 does not “relieve[] a party from addressing the assertions of fact presented by another party.” Rule 6(b) Motion Response at 5. Thus, they conclude, Lopez' “claim that he is ‘unfairly prejudiced' by being expected to follow the procedures set forth in the Federal Rules of Civil Procedure for every party who responds to a motion for summary judgment is legally and factually unsupported.” Rule 6(b) Motion Response at 6.

         Next, the Black & Decker Defendants argue that an extension of time for Lopez to respond to the MSJ is unnecessary. See Rule 6(b) Motion Response at 6. They reiterate that Lopez already served written discovery requests along with his original Complaint and note that they responded to Lopez' written discovery in November 2015. See Rule 6(b) Motion Response at 6-7. They note, moreover, that Lopez “did not proceed under Rule 37 of the Federal Rules of Civil Procedure within the time permitted by local rule concerning any issues he may have had with the Black & Decker Defendants' answers and responses.” Rule 6(b) Motion Response at 6 (citing D.N.M.LR-Civ. 26.6). They note that Lopez “has no pending discovery related to the facts established in the [MSJ], ” and contend that, “even if the Court granted [Lopez] the requested relief, [he] would still not have any additional evidence with which to support any contentions he might make in further response.” Rule 6(b) Motion Response at 8. They stress that they “should not be required to defend this case through trial simply because Plaintiff harbors shadowy hope that discovery might yield something helpful, not to mention directly contrary to sworn testimony in the record.” Rule 6(b) Motion Response at 8. In their view, Lopez “should have developed a threshold basis for suing” them, “grounded in some factual support, before filing suit.” Rule 6(b) Motion Response at 8 (emphasis in original)(citing Mosely v. Titus, 762 F.Supp.2d 1298, 1315 (D.N.M. 2010)(Browning, J.)). They conclude their argument by asserting that “[t]he bottom line is that Plaintiff sued the wrong defendants” and that “[t]he Court should not allow Plaintiff to compound that error through further delay.” Rule 6(b) Motion Response at 9.

         5. The MSJ Surreply.

         On February 16, 2016, Lopez filed a surreply to the MSJ. See Plaintiff's Reply in Support of His Rule 56(f) Motion in Opposition to Defendant Black & Decker (U.S.) Inc. and Stanley Black & Decker, Inc.'s Motion for Summary Judgment (Doc. 48), or Alternative Motion to Extend Time to File Response at 1, filed February 16, 2016 (Doc. 63)(“MSJ Surreply”). Lopez first addresses the choice-of-law issue. See MSJ Surreply at 1. Lopez asserts that the Supreme Court of New Mexico has concluded that “the rules governing successor liability in a product liability claim are grounded in contract law, not tort law[.]” MSJ Surreply at 1-2 (emphasis in original)(citing Garcia v. Coe Mfg. Co., 1997-NMSC-013, ¶ 17, 933 P.2d 243, 248). Lopez contends, moreover, that the Supreme Court of New Mexico has adopted the “‘product-line' exception for product liability claims (without discussion of the lex loci delecti choice-of-law rule) and also made clear that its application turns on the underlying facts of a particular case[.]” MSJ Surreply at 2 (citing Garcia v. Coe Mfg. Co., 1997-NMSC-013, ¶ 23, 933 P.2d at 249-50). Lopez adds that, in his view, “‘the initial step in conflicts analysis is characterization: deciding the area of substantive law -- e.g., torts, contracts domestic relations -- to which the law of the forum assigns a particular claim or issue.'” MSJ Surreply at 3 (emphases omitted)(quoting Terrazas v. Garland & Loman, Inc., 2006-NMCA-111, ¶ 11, 142 P.3d 374, 377). “For these reasons, ” Lopez contends,

it is not clear that New Mexico courts would apply Texas law to the issue of successor liability in a products liability claim because the issue of successor liability does not involve the underlying facts that give rise to a defendant's liability for a defective product, but addresses matters of corporate liability under contract law separate and apart from the underlying facts which calls for a different choice-of-law rule, as New Mexico courts and other courts applying lex loci delecti to tort claims have done in related “hybrid” choice-of-law issues.

         MSJ Surreply at 4 (relying on, among others, Billingsley v. JEA Co., Inc.).

         Lopez then reiterates his earlier assertion that “potential successor liability in a products liability claim is a ‘hybrid' question that the New Mexico Supreme Court has indicated is primarily an issue of contract law and ‘present[s] unique policy questions since the process is neither tort nor contract' but a hybrid of tort and corporate/contract law.” MSJ Surreply at 4 (alteration in original). Lopez also reiterates his view that “[t]his issue has particular significance in our case since in many instances New Mexico has adopted broader rules than has Texas to protect its citizens from injury due to defective products.” MSJ Surreply at 4 (citing, among others, Chairez v. James Hamilton Constr. Co., 2009-NMCA-093, 215 P.3d 732). Regarding the Black & Decker Defendants' assertion that Texas law applies, because Lopez “was covered under the Texas workers' compensation statute and he filed his workers' compensation claim in Texas, ” MSJ Reply at 13, Lopez argues that, while Texas law would apply to a workers' compensation claim, it does not apply to the successor-liability issue, see MSJ Surreply at 5. Lopez posits that, “[i]f anything, Texas favors the application of New Mexico law on the issue of corporate successor liability in this case in order to permit reimbursement for worker's compensation benefits paid to Plaintiff who was injured in Texas.” MSJ Surreply at 6. Lopez reasons, moreover, that, “in choice-of-law issues that involve the ability of an injured party to recover, the issue ‘is primarily a concern of the state in which the plaintiff is domiciled' in seeing that its citizens may seek recovery according to its laws . . . .” MSJ Surreply at 6 (quoting Calhoun v. Yamaha Motor Corp., U.S.A., 216 F.3d 338, 347 (3d Cir. 2000)).

         Lopez concludes his argument by reasoning that, although further “discovery may show that . . . the lex loci delicti choice-of-law rule points to Texas law to determine the underlying question of whether the unguarded table power saw in question was defective as marketed, designed, and/or manufactured, ” the “separate issue” of successor liability “is not controlled by lex loci delicti but by contract choice-of-law rules and policy considerations to more fully implement ‘the social policies underlying strict product liability' and other similar rules that focus on corporate activity rather than corporate form.” MSJ Surreply at 7 (emphasis in original). Lopez asserts that “whether the Black & Decker Defendants may have potential successor liability . . . is an issue of fact that should further be developed in discovery of the case.” MSJ Surreply at 7 (citing Garcia v. Coe Mfg. Co., 1997-NMSC-013, ¶ 23, 933 P.2d at 249-50). Lopez accordingly requests that the Court deny the MSJ without prejudice to refiling after discovery concludes. See MSJ Surreply at 7-8.

         6. The Hearing.

         The Court held a hearing on March 15, 2016. See Transcript of Motion Proceedings (taken March 15, 2016), filed July 20, 2016 (Doc. 92)(“Tr.”). The Black & Decker Defendants began by recapping their arguments about their compliance with Lopez' discovery requests and by reasserting their view that Lopez' requests are largely irrelevant to the successor-liability issue. See Tr. at 3:6- 5:11 (DeCandia). The Black & Decker Defendants also reiterated their view that “there are no facts that could be uncovered in discovery that would affect [their] entitlement to summary judgment.” Tr. at 5:11-14 (DeCandia). Turning specifically to the MSJ, the Black & Decker Defendants averred that the undisputed facts demonstrate that they did not “design, manufacture, or sell the table saw at issue.” Tr. at 5:22-6:2 (DeCandia). The Black & Decker Defendants stated that Stanley Black & Decker, Inc. “was not even in existence in 2001, ” that Black & Decker U.S., Inc. “was not even a corporate affiliate of Delta until 2004, ” and that “Delta, which did make the saw, is still in existence as a separate legal entity.” Tr. at 6:2-11 (DeCandia). The Black & Decker Defendants reminded the Court that Lopez originally named Delta Intl. as a Defendant, but that the Court dismissed Delta Intl. for lack of personal jurisdiction. See Tr. at 6:11-15 (DeCandia). According to the Black & Decker Defendants, Lopez “does not even argue [] that additional discovery would help him show that the Black & Decker defendants had any role in the design, manufacture, or sale of the saw at issue.” Tr. at 6:16-19 (DeCandia).

         As to successor liability, the Black & Decker Defendants asserted that, “under the lex loci delicti rule, . . . Texas law applies to this case.” Tr. at 6:20-22 (DeCandia). The Black & Decker Defendants noted Lopez' argument that the product-line exception applies under New Mexico law, but countered that Lopez “cites no cases where a Court applied one state's law for the underlying products claim, and another state's law for the issue of successor liability.” Tr. at 7:1-9 (DeCandia). According to the Black & Decker Defendants, Lopez' “cases show that with respect to New Mexico law on successor liability, that doctrine is tied very closely to the policies underlying strict liability.” Tr. at 7:10-13 (DeCandia). The Black & Decker Defendants argued that strict liability's policies, in turn, counsel “against segregating the successor liability issue from the underlying products issue for purposes of a conflicts analysis.” Tr. at 7:13-20 (DeCandia). As to Lopez' argument that further discovery is needed to determine whether the product-line exception applies, the Black & Decker Defendants contended that “choice of law issues are matters of law, not fact, ” and posited that the Court's choice-of-law analysis will “determine whether [the exception] applies in the first place.” Tr. at 7:25-8:7 (DeCandia). The Black & Decker Defendants stated, moreover, that Lopez “provides no analytical basis for applying New Mexico law to successor liability.” Tr. at 8:8-10 (DeCandia). The Black & Decker Defendants noted that Lopez “has not identified any contract that was executed in New Mexico or has any relationship with New Mexico, ” Tr. at 8:16-18 (DeCandia), and argued that this case's “only connection to New Mexico . . . is that plaintiff now claims to live here, ” Tr. at 8:21-23 (DeCandia). Indeed, the Black & Decker Defendants contended, Lopez has not identified which “state's law he thinks should apply, ” meaning that he “can't show that there is any conflict between Texas law and the law of this hypothetical state.” Tr. at 9:2-7 (DeCandia).

         Assuming for argument's sake that New Mexico law applies, the Black & Decker Defendants contended that Lopez has not proffered facts “to show that the product line exception would impose liability on the[m.]” Tr. at 9:23-10:2 (DeCandia). The Black & Decker Defendants said that they did not expressly assume Delta Intl.'s liabilities; that The Black & Decker Corporation's acquisition of Delta Intl. did not “amount[] to a consolidation or merger”; that the transaction was not “a mere continuation of the former business”; and that the transaction was not “fraudulently entered into to escape liability.” Tr. at 10:2-14 (DeCandia)(referencing Garcia v. Coe). Thus, the Black & Decker Defendants stated, the product-line exception does not apply under any theory. See Tr. at 10:15-19 (DeCandia).

         The Court then directed Lopez to argue. See Tr. at 11:11-13 (Court). Lopez began by noting that the Black & Decker Defendants did not produce the Purchase Agreement until February 26, 2016. See Tr. at 12:11-18 (Isaac). Lopez argued that this “very lengthy” agreement “may create fact issues with regard to whether they assumed liabilities.” Tr. at 12:25-13:4 (Isaac). Lopez noted, for example, that the Purchase Agreement has a section on “transferred liabilities.” Tr. at 13:4-5 (Isaac). Lopez conceded that he had not yet read the Purchase Agreement, but asserted that discovery “needs to be done on it” before he can respond to the MSJ's merits. Tr. at 13:10-17 (Isaac).

         Turning to successor liability, Lopez argued that “New Mexico law is clear . . . that successor liability in a products liability claim is grounded in contract law.” Tr. at 13:18-24 (Isaac). Thus, Lopez asserted, the first issue is whether the contract contains a choice-of-law provision. See Tr. at 14:6-9 (Isaac). Lopez was unsure whether the Purchase Agreement has such a provision; the Court, however, speculated that the parties “certainly . . . didn't choose New Mexico.” Tr. at 14:7-13 (Isaac, Court). Lopez agreed and argued that New Mexico courts would effectuate a choice-of-law provision, unless the law of the state to which it points “offends New Mexico public policy.” Tr. at 14:16-19 (Isaac). The Court queried, however, how New Mexico public policy is relevant when the Court is not enforcing the Purchase Agreement. See Tr. at 14:20-23 (Court). Lopez answered that, under the applicable case law, public policy is relevant to the successor-liability analysis. See Tr. at 14:24-15:1 (Isaac). The Court interjected, countering that the successor-liability cases upon which Lopez relies involve asset sales and not stock transactions involving subsidiary organizations. See Tr. at 15:5-7 (Court). The Court posited that, consequently, it would have to create a “lot of new law to get to a point of ever finding Black & Decker to be liable for anything in this case[.]” Tr. at 15:7-12 (Court). Lopez argued, in response, that The Black & Decker Corporation purchased “a lot more than” stock in the Purchase Agreement. Tr. at 15:24-25 (Isaac). See id. at 15:25-16:1 (Isaac)(“[The Purchase Agreement] talks about purchasing benefit plans and purchasing facilities and products.”). Lopez asserted, moreover, that the relevant inquiry for successor liability is whether “a company has the same ability as its predecessor to assess, control, and distribute the risks[.]” Tr. At 16:19-25 (Isaac). Here, Lopez contended, The Black & Decker Corporation assumed Delta Intl.'s ability to “assess, control, [and] distribute the risk[.]” Tr. at 17:5-11 (Isaac).

         The Court interjected and posited that The Black & Decker Corporation is not a “successor” to Delta Intl., but rather “another corporation.” Tr. at 17:12-14 (Court). Lopez retorted that, in his view, The Black & Decker Corporation is the successor to Delta Intl., because it “purchased the saw and technology and designs and patents from Pentair.” Tr. at 17:19-21 (Isaac). Regardless, Lopez asserted, “discovery is necessary to determine . . . if they assumed the liabilities of Pentair, who manufactured and designed this table saw, when they purchased it in July of 2004.” Tr. at 17:23-18:2 (Isaac). The Court interpolated, observing that the parties have already conducted extensive discovery over a lengthy period. See Tr. at 18:5-14 (Court). Despite that discovery, the Court noted, the parties “don't seem to be making any progress here.” Tr. at 18:21-24 (Court). Lopez countered that two months remain before the Court's discovery deadline, and reiterated his view that further discovery is necessary to respond to the successor-liability issue. See Tr. at 21:5-14 (Isaac). Lopez, evidently having discovered the Purchase Agreement's choice-of-law provision, then informed the Court that the contract points to the “internal laws of the State of Delaware.” Tr. at 22:3-6 (Isaac). Nevertheless, Lopez contended, New Mexico law may apply “under the public policy rationales.” Tr. at 22:6-8 (Isaac). If New Mexico law applies, Lopez asserted, the Black & Decker Defendants are likely liable under the product-line exception, given the Purchase Agreement's express provision for “transferred liabilities.” Tr. at 22:13-19 (Isaac). In any event, Lopez stressed, there are genuine factual issues as to the successor-liability issue that preclude summary judgment at this stage. See Tr. at 23:9-24:9 (Isaac).

         The Court queried why Lopez is “so intent on bringing this case in New Mexico rather than, say, wherever Delta Machinery can be sued[.]” Tr. at 24:15-17 (Court). Lopez explained that he first brought suit against “two Delta entities” in El Paso, Texas, and that that case was dismissed on summary judgment. Tr. at 24:24-25:25 (Isaac, Court). The Court inquired as to the grounds upon which summary judgment was granted, to which Lopez answered that the named defendants were not liable for his injury. See Tr. at 26:1-15 (Isaac, Court)(noting that he did “[n]ot [name] the right company.”). Lopez added that the “Texas statute of limitations[ ] has already run.” Tr. at 27:6-10 (Isaac). Lopez then reiterated his view that further discovery is necessary to determine whether the Black & Decker Defendants “assumed the liabilities contained in their purchase agreement, ” whether “Delaware law allows the case to move forward, ” and whether “New Mexico law trumps Delaware law.” Tr. at 28:2-7 (Isaac).

         Turning to the Black & Decker Defendants, the Court asked whether The Black & Decker Corporation purchased assets in addition to stock with the Purchase Agreement. See Tr. at 31:13-17 (Court)(“Mr. Isaac also mentioned that there was the purchase of plants, which sounds to me more in the asset category, than stock.”). The Black & Decker Defendants admitted that they “don't recall whether a plant was going to be purchased, ” but noted that “there is something in there about closing a plant[.]” Tr. at 31:18-23 (DeCandia). The Black & Decker Defendants then reiterated that “Delta still exists, ” Tr. at 32:1-3 (DeCandia), and speculated that, although Lopez sued the wrong entities in the Texas suit, Delta Intl., the entity which Lopez originally sued in this case, is “the entity that made this table saw, ” Tr. at 33:6-19 (Court, DeCandia). As to the applicable statute of limitations for Lopez' claims, the Black & Decker Defendants noted that, in New Mexico, the limitations period is three years, whereas Texas has a two-year limitations period. See Tr. at 34:2-11 (Court, DeCandia).

         The Black & Decker Defendants then pivoted to discuss various relevant provisions in the Purchase Agreement. See Tr. at 34:22-24 (DeCandia). First, they noted, the Purchase Agreement “talks about purchasing all outstanding shares of capital stock, ” Tr. at 35:9-14 (DeCandia), i.e., “equity shareholder interests, [or] the equivalent, ” Tr. at 37:6-12 (DeCandia). See id. at 35:19-22 (Isaac)(interjecting that “it goes on to say more than just stock membership interests, and other ownership interests . . . .”). Next, they noted that Pentair, Inc. is Delta Intl.'s “Parent, ” and that Delta Intl. “is a wholly owned subsidiary[.]” Tr. at 36:11-23 (DeCandia, Court). They clarified that, under the agreement, Delta Intl. is a “subsidiary that gets transferred.” Tr. at 37:12-15 (DeCandia). See Id. at 38:1-3 (DeCandia)(stating that “the subsidiaries are transferred, they go over, by virtue of the acquisition of the stock”). With respect to successor liability under the Purchase Agreement, the Black & Decker Defendants asserted that Lopez must establish “that the entities before the Court . . . agreed to assume Delta's liabilities[] for a saw made before this transaction, ” i.e., Lopez must “show an actual acquisition of those liabilities in this document.” Tr. at 38:4-17 (DeCandia). They argued that, pursuant to the agreement, Pentair, Inc. has a “preexisting liability” to indemnify The Black & Decker Corporation if “a saw made before the date of this transaction [] causes injury before the date of this transaction[.]” Tr. at 38:18-23 (DeCandia). They explained, however, that, if a saw “made before the transaction” causes injury “after the transaction, then the sub[sidiary] that made the saw is still on the hook for that, even though it[] now . . . has different parent companies.” Tr. at 38:24-39:8 (DeCandia). In short, they stated, “indemnified liabilities stay with Pentair.” Tr. at 39:13-14 (DeCandia). As to the Purchase Agreement's “transferred liabilities” provision, they noted that the provision states that “transferred liabilities shall mean liabilities and obligations of the subsidiaries.” Tr. at 39:19-24 (DeCandia). The Black & Decker Defendants interpreted this provision to mean that, if “the subs[idiaries] had these transferred liabilities, [] then they still have those liabilities after they're transferred, . . . not the acquiring entity.” Tr. at 39:24-40:23 (DeCandia). They stressed that the agreement contains “no language . . . that says the acquiring entity takes on the liabilities of the subs[idiaries].” Tr. at 40:3-5 (DeCandia).

         Ultimately, the Black & Decker Defendants posited, Lopez appears to be arguing a “veil-piercing theory, ” because Delta Intl. is a separate legal entity. Tr. at 42:8-12 (DeCandia). The Court agreed, see Tr. at 42:13 (Court), and added that Lopez' product-line-exception cases are inapposite, because they involve asset purchases, whereas here, a corporation “purchas[ed] [a] holding company that has stock in subsidiaries, ” Tr. at 42:22-43:4 (Court). The Court stated that, on these facts, Lopez likely will have to argue a veil-piercing theory, which is difficult to prove. See Tr. at 43:4-6 (Court).

         Lopez again took up argument, asserting that the Black & Decker Defendants “admitted that Delta, which is the subsidiary, . . . has the liability for this incident.” Tr. at 43:20-23 (Isaac). The Court interposed and queried whether Lopez “really think[s] [he] can pierce the corporate veil of Black & Decker[.]” Tr. at 44:4-5 (Court). In response, Lopez stated: “I don't know, Your Honor. I'm not going to pretend I can, but I don't know.” Tr. at 44:6-8 (Isaac). The Court pressed Lopez to explain why he would go through the trouble of trying to pierce the corporate veil when Delta Intl. is a “viable defendant, ” if sued in a proper jurisdiction. Tr. at 44:9-14 (Court). Lopez conceded that veil-piercing will be difficult, see Tr. at 44:25-45:1 (Isaac), and that it “would be ideal” to sue Delta Intl. in a proper jurisdiction, Tr. at 45:7-14 (Isaac).

         The Court concluded the hearing by noting its inclination to grant the MSJ. See Tr. at 45:23-24 (Court). The Court expressed that it will first review the Purchase Agreement, but maintained that it will likely grant the MSJ, see Tr. at 45:24-46:2 (Court), because it appears that Lopez is suing the wrong company, see Tr. at 48:19-21 (Court). As for further discovery, the Court expressed skepticism that more time will be productive. See Tr. at 46:3-9 (Court). The Court noted, however, that it will consider additional relevant materials, should the parties choose to supplement the record. See Tr. at 49:7-17 (Court).

         7. The Suppl. Brief.

         Following the hearing, on July 12, 2016, Lopez filed a Suppl. Brief in opposition to the MSJ and in support of his MSJ Response/Motion. See Suppl. Brief at 1. After briefly recounting this case's relevant procedural history, Lopez asserts that, at the hearing, the Black & Decker Defendants “reluctantly admitted that under the Purchase Agreement, Delta . . . would have successor liability for the Plaintiff's incident.” Suppl. Brief ¶ 9, at 3 (emphases omitted). Lopez contends that genuine issues of material fact remain whether the Black & Decker Defendants also are liable under the Purchase Agreement. See Suppl. Brief ¶ 10, at 3. In support of this contention, Lopez reviews several provisions in the Purchase Agreement which, he posits, demonstrate that the Black & Decker Defendants have successor liability. See Suppl. Brief ¶¶ 11-22, at 3-8.

         Lopez first notes that, under the Purchase Agreement, The Black & Decker Corporation is “the sole ‘Buyer, '” Suppl. Brief ¶ 11, at 4 (citing Purchase Agreement at 1), and that, as the Buyer, The Black & Decker Corporation “acquire[d] the stock [and] also ‘membership interests' and ‘other ownership interests' of Pentair, ” Suppl. Brief ¶ 12, at 4 (citing Purchase Agreement at 1). Lopez adds that The Black & Decker Corporation is also “a ‘Purchaser' responsible for paying the purchase price[.]” Suppl. Brief ¶ 13, at 4 (citing Purchase Agreement ¶ 1.1, at 1). Next, Lopez stresses the “importan[ce] . . . of the definition of ‘Affiliate' in” the Purchase Agreement, noting that “Affiliate” has “‘the meaning ascribed to such term in Rule 12b-2 of the Securities Exchange Act of 1934[.]'” Suppl. Brief ¶ 14, at 5 (quoting Purchase Agreement ¶ 11.17, at 52). Finally, Lopez notes that The Black & Decker Corporation, as the Buyer, makes “certain ‘Representations and Warranties' to the seller, including that it had ‘Authority' to make the ‘valid and binding agreements . . . enforceable in accordance with their respective terms . . . .'” Suppl. Brief ¶ 16, at 5-6 (quoting Purchase Agreement ¶ 3.2, at 14). Lopez notes that, in the event of a breach of these representations and warranties, The Black & Decker Corporation agrees to “‘indemnify, defend, and hold harmless Parent [Pentair] . . . from and against all Losses asserted against, resulting to, imposed upon or incurred . . . .'” Suppl. Brief ¶ 18, at 6 (alteration in original)(quoting Purchase Agreement ¶ 8.2, at 41).

         Turning specifically to “Transferred Liabilities” under the Purchase Agreement, Lopez notes that such liabilities include, in relevant part, “‘liabilities and obligations of the Subsidiaries arising out of bodily injury, death or other damage relating to products manufactured prior to the Closing, . . . other than [certain Specified Liabilities.]'” Suppl. Brief ¶ 19, at 6-7 (quoting Purchase Agreement ¶ 11.17, at 60-61). Lopez contends that his “claims in this case fall squarely within [this] paragraph . . ., since they arise out of bodily injuries relating to the subject table saw manufactured prior to the Closing date of the purchase agreement, and because they are not covered by the . . . Specified Liabilities, ” i.e., “(i) injuries occurring before the closing; (ii) injuries resulting from presence of or exposure to Potentially Harmful Substances or Conditions; and (iii) corrective actions required by the Consumer Product Safety Commission.” Suppl. Brief ¶ 20, at 7 (citing Purchase Agreement ¶ 11.17, at 63). As to the Black & Decker Defendants' assertion that Delta Intl.'s liabilities transferred with it “as a ‘subsidiary' of the Black & Decker Defendants, ” Lopez contends that “this is plainly incorrect since the term ‘subsidiary' is defined to mean only the subsidiaries of Pentair, Inc. . . ., not the subsidiaries of Black & Decker[.]” Suppl. Brief at 7 (citing Purchase Agreement ¶ 11.17, at 59).

         In light of the above contractual provisions, Lopez asserts that “there are genuine issues of material fact that the entity that purchased the subject table saw line from Pentair, Inc. was the Black & Decker Defendants.” Suppl. Brief at 8. Further, Lopez argues, “the Purchase Agreement clearly shows a genuine issue of material fact that it was the Black & Decker Defendants who assumed successor liability for Plaintiff's incident and injuries under the Transferred Liabilities provision in the Agreement.” Suppl. Brief at 8. Finally, Lopez contends, “the Black & Decker Defendants can also be held liable even as a parent corporation since it represented that it controls, is controlled by, or is under common control with Delta.” Suppl. Brief at 8. Accordingly, Lopez requests that the Court deny the MSJ “and allow the parties to engage in full discovery on the merits of this case.” Suppl. Brief at 8.

         8. The Suppl. Brief Response.

         The Black & Decker Defendants responded to the Suppl. Brief on July 29, 2016. See Suppl. Brief Response at 1. The Black & Decker Defendants advance two primary arguments. First, they aver that The Black & Decker Corporation acquired in the Purchase Agreement Delta Intl.'s stock and not its liabilities. See Suppl. Brief Response at 2-4. They argue that the Purchase Agreement refers to “equity interests” in Delta Intl., that Delta Intl. “continues to exist as a separate and distinct corporate entity, ” and that, accordingly, “The Black & Decker Corporation simply acquired the stock of Delta which came in as a wholly owned subsidiary.” Suppl. Brief Response at 2 (citing Morris Aff. ¶ 8, at 2)(footnote omitted). As for the “Transferred Liabilities” provision, the Black & Decker Defendants aver that the provision does not “somehow transfer[] [the subsidiaries' liabilities] to The Black & Decker Corporation, ” but, rather, that “the liabilities simply transferred over, and remained, with the subsidiaries.” Suppl. Brief Response at 3 (emphasis in original). The Black & Decker Defendants explain that, in their view, the “term ‘transferred liabilities' is a definitional explanation of which liabilities would not have to be indemnified by Pentair, Inc.” Suppl. Brief Response at 3 (citing Purchase Agreement ¶ 11.17, at 56). Accordingly, they argue, “‘Transferred Liabilities' is [] a defined term with no operative significance other than as a reference for which liabilities remained with the subsidiaries and are not subject to indemnity from Pentair.” Suppl. Brief Response at 3. The Black & Decker Defendants stress that “[t]he key point is that the plaintiff has not been able to identify any passage in the Agreement in which The Black & Decker Corporation itself agreed to be obligated for the liabilities of the wholly owned subsidiaries that it was purchasing.” Suppl. Brief Response at 3. Indeed, they assert, “[n]o such passage exists.” Suppl. Brief Response at 3. As to this issue, they conclude, Lopez “has not carried his burden of showing the contrary or creating a genuine issue of material fact on that point.” Suppl. Brief Response at 4.

         Second, the Black & Decker Defendants contend that Lopez “has no basis for piercing the corporate veil between Delta and its parent corporation.” Suppl. Brief Response at 4-5. They assert that veil-piercing requires that Lopez “show ‘instrumentality or dominion, improper purpose and proximate causation.'” Suppl. Brief Response at 4 (quoting Scott v. AZL Res., Inc., 1988-NMSC-028, ¶¶ 6-7, 753 P.2d 897, 900). To establish “‘instrumentality' or ‘dominion, '” they argue, Lopez must demonstrate “‘that the subsidiary or other subservient corporation was operated not in a legitimate fashion to serve the valid goals and purposes of that corporation but it functioned instead under the domination and control and for the purposes of some dominant party.'” Suppl. Brief Response at 4 (quoting Scott v. AZL Res., Inc., 1988-NMSC-028, ¶ 7, 753 P.2d at 900). They note that “New Mexico decisions refer to the ‘instrumentality' or ‘domination' requirement as the ‘alter ego doctrine, '” and contend that “‘mere control by the parent corporation is not enough to warrant piercing the corporate veil.'” Suppl. Brief Response at 4 (brackets omitted)(quoting Scott v. AZL Res., Inc., 1988-NMSC-028, ¶¶ 7, 9, 753 P.2d at 900). Here, they aver, “[t]he record contains no evidence whatsoever on these points, as Plaintiff's counsel effectively conceded at the hearing[.]” Suppl. Brief Response at 5.

         9. The Suppl. Brief Reply.

         Lopez replied to the Suppl. Brief Response on August 12, 2016. See Suppl. Brief Reply at 1. Lopez begins by discussing the Purchase Agreement's transferred-liabilities provision. See Suppl. Brief Reply at 1. Lopez argues that, contrary to the Black & Decker Defendants' assertion that this provision has no “operative significance, ” “[t]he specific and detailed description of ‘Transferred Liabilities' in a $775 million dollar Purchase Agreement . . . means just what it says.” Suppl. Brief Reply ¶ 2, at 2. To support this argument, Lopez reiterates the Suppl. Brief's arguments about (i) the Purchase Agreement's “Purchase and Sale” provision; (ii) the term “Equity Interests”; (iii) the terms “Affiliate” and “Subsidiary”; and (iv) the “Transferred Liabilities” provision. Suppl. Brief Reply ¶¶ 1-6 at 1-5. In light of these provisions and terms, Lopez contends that:

“Transferred Liabilities” . . . describes the liabilities transferred from “Parent” (Pentair) and “Sellers” (its Subsidiaries listed on Schedule 1.1, including Delta Int'l Machinery Corp.) to “Buyer” (The Black & Decker Corporation) and its “Affiliates” under its control, as part of the “Equity Interests” (which by definition consists of assets, less liabilities) “held by Parent and its Affiliates in Each of the Transferred Subsidiaries” in the Purchase and Sale provision of the [Purchase Agreement.]

Suppl. Brief Reply ¶ 4, at 3-4 (alteration added). Lopez reiterates that “the liability from [his] claim is a ‘Transferred Liability' . . . because it is a ‘[] liabilit[y] and obligation of [a] Subsidar[y] arising out of bodily injury, death or other damage relating to products manufactured prior to the Closing.'” Suppl. Brief Reply ¶ 6, at 5 (first alteration added)(quoting Purchase Agreement ¶ 11.17, at 60-61). Lopez asserts that “[t]he idea that such a detailed description of ‘Transferred Liabilities' in the Purchase Agreement would have no ‘operative significance' has no factual or legal basis in the record.” Suppl. Brief Reply ¶ 6, at 5.

         Next, Lopez argues that other provisions in the Purchase Agreement “make clear that assets and liabilities of the Parent and its Subsidiaries were transferred to Buyer/Purchasers under its control . . . .” Suppl. Brief Reply at 5 (emphasis in original). Lopez notes, for example, that, in a provision titled “Estimated Closing Statement, ” the Purchase Agreement states that, five days before closing, Pentair, Inc. shall prepare a reasonable “estimate of the Net Asset Value to be reflected on the Closing Statement and the Purchase Price . . . .” Suppl. Brief Reply ¶ 7, at 6 (quoting Purchase Agreement ¶ 2.2, at 2). Lopez adds that the Purchase Agreement's “Closing Statement” provision states that, within forty-five days after closing, Pentair, Inc. shall prepare an “unaudited consolidated combined balance sheet of the Subsidiaries (the ‘Closing Statement'), which shall set forth the Net Asset Value as of the Closing Date . . . .” Suppl. Brief Reply ¶ 7, at 6 (quoting Purchase Agreement ¶ 2.2, at 2). “To state the obvious, ” Lopez explains, “‘Net Asset Value' of the Subsidiaries, ‘to be reflected on the Closing Statement' and used to determine ‘the Purchase Price payable by Buyer at the Closing, ' plainly includes a valuation of transferred assets and liabilities of the Subsidiaries.” Suppl. Brief Reply ¶ 7, at 6 (emphasis in original). Lopez buttresses this argument by noting that a separate provision in the Purchase Agreement refers to a “determination or valuation of assets and liabilities (including reserves and accruals) included on the Final Closing Statement . . . .” Suppl. Brief Reply ¶ 7, at 7. Finally, Lopez notes that the Purchase Agreement expressly contemplates that The Black & Decker Corporation will “‘be able to continue to conduct the Business after Closing in the manner in which the Business has been conducted by the Subsidiaries[.]'” Suppl. Brief Reply ¶ 9, at 8 (citing Purchase Agreement ¶ 3.1, at 9-10). Lopez contends that this provision “demonstrates that ‘Transferred Liabilities' . . . means just what it says and may also be additional grounds for successor liability under Delaware law[.]” Suppl. Brief Reply ¶ 9, at 8.

         Turning to the choice-of-law issue, Lopez contends that the Purchase Agreement “expressly provides that Delaware law applies to the parties' agreement[.]” Suppl. Brief Reply ¶ 10, at 8 (citing Purchase Agreement ¶ 11.4, at 49). Lopez argues that, under Delaware law,

a purchaser may be liable for the obligations of the selling corporation in any one of the following four situations: (1) the purchaser expressly or impliedly assumes such obligations; (2) the transaction amounts to a consolidation or merger of the seller into the purchaser; (3) the purchaser is merely a continuation of the seller; or (4) the transaction has been entered fraudulently.

Suppl. Brief Reply ¶ 11, at 9 (emphases in original)(quoting Elmer v. Tenneco Resins, Inc., 698 F.Supp. 535, 540-41 (D. Del. 1988)(Wright, J.)). Lopez then notes that the Court “applies New Mexico choice-of-law rules in this diversity case, ” Suppl. Brief Reply ¶ 12, at 9 (citing Klaxon Co. v. Stentor Elec. Mfr. Co., Inc., 313 U.S. 487 (1941)), and that New Mexico courts hold that “the rules governing successor liability in a product liability claim are grounded in contract law, not tort law, ” Suppl. Brief Reply ¶ 12, at 9 (emphasis in original)(citing Garcia v. Coe Mfg. Co., 1997-NMSC-013, ¶ 17, 933 P.2d at 248). According to Lopez, the Supreme Court of New Mexico has “adopted the ‘product-line' exception for product liability claims and made clear its application turns on the underlying facts of a particular case.” Suppl. Brief Reply ¶ 12, at 10 (citing Garcia v. Coe Mfg. Co., 1997-NMSC-013, ¶ 23, 933 P.2d at 249-50). Lopez further asserts successor liability “presents unique policy questions since the process is neither tort nor contract.” Suppl. Brief Reply ¶ 13, at 10 (brackets and internal quotation marks omitted). Here, Lopez contends,

New Mexico courts would likely give effect to the parties' choice-of-law provision and apply Delaware law, or alternatively apply New Mexico law to protect the interests of its citizens (if Delaware law was [sic] contrary to New Mexico public policy), but under no scenario would New Mexico courts apply Texas law to the issue of successor liability in this case.

Suppl. Brief Reply ¶ 13, at 10.

         LAW REGARDING SUMMARY JUDGMENT

         Rule 56(a) of the Federal Rules of Civil Procedure states: “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “The movant bears the initial burden of ‘show[ing] that there is an absence of evidence to support the nonmoving party's case.'” Herrera v. Santa Fe Pub. Sch., 956 F.Supp.2d 1191, 1221 (D.N.M. 2013)(Browning, J.)(quoting Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d at 891). See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “If the moving party will bear the burden of persuasion at trial, that party must support its motion with credible evidence -- using any of the materials specified in Rule 56(c) -- that would entitle it to a directed verdict if not controverted at trial.” Celotex Corp. v. Catrett, 477 U.S. at 331 (Brennan, J., dissenting)(emphasis in original).[32] Once the movant meets this burden, rule 56 requires the nonmoving party to designate specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. at 324; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).

         The party opposing a motion for summary judgment must “set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). See Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir. 1993)(“However, the nonmoving party may not rest on its pleadings but must set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.”)(internal quotation marks omitted). Rule 56(c)(1) provides: “A party asserting that a fact . . . is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1). It is not enough for the party opposing a properly supported motion for summary judgment to “rest on mere allegations or denials of his pleadings.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 256. See Abercrombie v. City of Catoosa, 896 F.2d 1228, 1231 (10th Cir. 1990); Otteson v. United States, 622 F.2d 516, 519 (10th Cir. 1980)(“However, once a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried.”)(citation and internal quotation marks omitted). Nor can a party “avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.” Colony Nat'l Ins. Co. v. Omer, 2008 U.S. Dist. LEXIS 45838, at *1 (D. Kan. 2008)(Robinson, J.)(citing Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006); Fed.R.Civ.P. 56(e)). “In responding to a motion for summary judgment, ‘a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.'” Colony Nat'l Ins. Co. v. Omer, 2008 U.S. Dist. LEXIS 45838, at *1 (quoting Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988)).

         To deny a motion for summary judgment, genuine factual issues must exist that “can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 250. A mere “scintilla” of evidence will not avoid summary judgment. Vitkus v. Beatrice Co., 11 F.3d at 1539 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. at 248). Rather, there must be sufficient evidence on which the fact finder could reasonably find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 251 (quoting Schuylkill & Dauphin Improvement Co. v. Munson, 81 U.S. 442, 448 (1871)); Vitkus v. Beatrice Co., 11 F.3d at 1539. “[T]here is no evidence for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable . . . or is not significantly probative, . . . summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 249 (citations omitted). Where a rational trier of fact, considering the record as a whole, could not find for the nonmoving party, there is no genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         When reviewing a motion for summary judgment, the court should keep in mind certain principles. First, the court's role is not to weigh the evidence, but to assess the threshold issue whether a genuine issue exists as to material facts requiring a trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 249. Second, the ultimate standard of proof is relevant for purposes of ruling on a summary judgment, such that, when ruling on a summary judgment motion, the court must “bear in mind the actual quantum and quality of proof necessary to support liability.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 254. Third, the court must resolve all reasonable inferences and doubts in favor of the nonmoving party, and construe all evidence in the light most favorable to the nonmoving party. See Hunt v. Cromartie, 526 U.S. 541, 550-55 (1999); Anderson v. Liberty Lobby, Inc., 477 U.S. at 255 (“The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.”). Fourth, the court cannot decide any issues of credibility. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 255.

         There are, however, limited circumstances in which the court may disregard a party's version of the facts. This doctrine developed most robustly in the qualified immunity arena. In Scott v. Harris, 550 U.S. 372 (2007), the Supreme Court concluded that summary judgment was appropriate where video evidence “quite clearly contradicted” the plaintiff's version of the facts. 550 U.S. at 378-81. The Supreme Court explained:

At the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a “genuine” dispute as to those facts. Fed. Rule Civ. Proc. 56(c). As we have emphasized, “[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.'” Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. [at] 586-587 . . . (footnote omitted). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. [at] 247-248 . . . . When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.

Scott v. Harris, 550 U.S. at 380 (emphases in original). Applying these standards to a factual dispute over whether the plaintiff-respondent “was driving in such fashion as to endanger human life, ” the Supreme Court held that the plaintiff-respondent's “version of events is so utterly discredited by the record that no reasonable jury could have believed him.” 550 U.S. at 380. Thus, the Supreme Court concluded, “[t]he Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by [a] videotape” which showed the plaintiff-respondent driving extremely dangerously. 550 U.S. at 381.

         The Tenth Circuit applied this doctrine in Thomson v. Salt Lake County, 584 F.3d 1304 ...


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