ROBERT J. COLLIER, Plaintiff,
LAND & SEA RESTAURANT CO., LLC d/b/a FRANKIE ROWLAND’S STEAKHOUSE, Defendant/Third-Party Plaintiff,
PERFORMANCE FOOD GROUP, INC. d/b/a PERFORMANCE FOOD SERVICE-VIRGINIA, Third-Party Defendant/Fourth-Party Plaintiff,
WEAVER FRESH SEAFOOD & PRODUCE, Third-Party Defendant,
SAM RUST SEAFOOD, INC., Fourth-Party Defendant.
James C. Turk Senior United States District Judge
Pending before the court are motions for summary judgment filed by Fourth-Party Defendant Sam Rust Seafood (“Sam Rust”), ECF No. 57, and Performance Food Group, Inc. d/b/a Performance Food Service-Virginia (“PFG”), ECF No. 62. PFG’s motion simply incorporates the arguments by Sam Rust, so both motions are premised on identical arguments. Specifically, Sam Rust and PFG argue that Land & Sea Restaurant Co., LLC (“Land & Sea”) failed to notify PFG “within a reasonable time” of the potential claim against PFG, as required by Virginia Code Ann. § 8.2-607. Because PFG was not timely notified, it contends the statute bars any claim against it and, consequently, also bars any claim against Sam Rust.
Land & Sea has filed a response in opposition, ECF No. 63, as has Plaintiff. ECF No. 64. Sam Rust has filed two reply memoranda. First, Sam Rust has filed a reply to Land & Sea’s opposition, in which it addresses the merits of the summary judgment motion. ECF No. 66. Second, Sam Rust has filed a brief reply in response to Plaintiff’s opposition, in which it argues that Plaintiff has no direct claim against PFG or Sam Rust and that Plaintiff thus has no standing to oppose the summary judgment motions. ECF No. 67 at 2-3. The Court heard argument on the motions on January 17, 2014, and they are now ripe for disposition.
For the reasons explained in more detail below, the Court concludes that the parties should be permitted to engage in further discovery before the Court rules as to whether the notice given was unreasonable as a matter of law or whether there are factual issues precluding summary judgment. As Plaintiff points out in his response, discovery has barely begun, and the parties simply do not know what precise notice was given by whom, to whom, and when. See generally ECF No. 64 at 7-8. In particular, the Court concludes that discovery should be permitted so the parties may determine more precisely what Land & Sea knew about Collier’s claims and when, more precise date or dates of alleged telephone conversations between Land & Sea employees and the sales representative or others from PFG, and the substance of those alleged conversations. In short, there has been inadequate discovery to date on the issue of whether Land & Sea gave notice to PFG of the potential claim against it within a “reasonable time.” See Va. Code Ann. § 8.2-607. Accordingly, both motions for summary judgment are DENIED WITHOUT PREJUDICE.
I. PROCEDURAL BACKGROUND
Plaintiff Robert J. Collier alleges that he suffered personal and bodily damages due to food poisoning after consuming “unwholesome food, ” including shellfish, at Frankie Rowland’s Steakhouse (“the Restaurant”), doing business as Land & Sea, on April 14, 2011. See ECF No. 17, Am. Compl. The Amended Complaint asserts a common law negligence claim, as well as claims for breaches of the implied warranties of merchantability and of fitness for a particular purpose. See generally id. After filing its Answer, Land & Sea filed an Amended Third-Party Complaint against the two entities that supplied the shellfish that Collier or others in his dining party allegedly consumed—PFG and Weaver Fresh Seafood & Produce. ECF No. 30. The Amended Third-Party Complaint contains the same causes of action against each of the third-party defendants as the Amended Complaint, i.e., negligence and breaches of the implied warranties of merchantability and of fitness for a particular purpose. See generally id. In addition to filing an answer denying the allegations against it, PFG filed a Fourth-Party Complaint against Sam Rust. ECF No. 29. The Fourth-Party Complaint alleges that Sam Rust supplied PFG with the shellfish that it, in turn, provided to Land & Sea. ECF No. 29 at ¶¶ 5-6. PFG asserts a claim for contractual indemnification against Sam Rust.
II. APPLICABLE LEGAL STANDARDS
Summary judgment is proper where “there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Rule 56(e), moreover, allows a court to give the parties “an opportunity to properly support or address” any assertion of fact. Furthermore, although no party has filed a Rule 56(e) affidavit expressly requesting additional discovery, both Plaintiff and Land & Sea have referred to the need for additional discovery regarding what notice was given and when. Cf. Harrods Ltd v. Sixty Internet Doman Names, 302 F.3d 214, 244-45 (4th Cir. 2002) (emphasizing the importance of the Rule 56[(e)] affidavit (previously in Rule 56(f)), but recognizing a district court’s authority to conclude that summary judgment is premature even in the absence of such an affidavit).
In this case, the critical issue is whether Land & Sea’s claims against PFG are barred (and, in turn, PFG’s claim against Sam Rust for indemnification is barred) because Land & Sea failed to give PFG notice of a potential claim against PFG within a reasonable time after discovering it. The parties agree that the notice requirement derives from Virginia Code Annotated, § 8.2-607(3)(a). In pertinent part, that statute provides that, where a tender of goods has been accepted, “the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy.” Va. Code Ann. § 8.2-607(3)(a). Comment 4 to that provision elaborates that “[t]he time of notification is to be determined by applying commercial standards to a merchant buyer.” Id. cmt. 4. Additionally, Section 8.1A-205 instructs that “[w]hether a time for taking an action required by the Uniform Commercial Code is reasonable depends on the nature, purpose, and circumstances of the action.” Va. Code Ann. § 8.1A-205.
A. Factual Background Relating to Notice
As noted, discovery in this case has just begun, and depositions have not yet been taken, although some records have been produced and some written discovery propounded and answered. The following facts that relate to notice are taken primarily from that written discovery and gleaned from documents submitted by the parties with their memoranda.
On April 14, 2011, Plaintiff Collier and five dining companions ate a meal at the Restaurant. Late that evening, or in the early morning hours of Friday, April 15, 2011, Collier became very ill and was taken by ambulance to the hospital. His condition quickly progressed to a state of “intubation and sedation.” While several other of his dining companions also experienced nausea or vomiting that evening, none experienced the severity of symptoms that Collier apparently did.
On Saturday, April 16, 2011, a physician at Collier’s hospital alerted the Virginia Department of Health (“VDH”) concerning Collier’s condition, and VDH opened an investigation on or about that same day. As part of that investigation, VDH conducted an inspection of the Restaurant with Head Chef James Nelson from approximately 2:30 p.m. to 4:00 p.m. on April 18, 2011, for fact-finding due to suspected food poisoning. During the visit, the VDH representatives sought to verify what Collier ate. On the dining party’s bill, there were five shellfish items, including an order of Oysters Rockefeller (the oysters would have been supplied by PFG) and a lobster. VDH ...