Jones v. Goodyear Tire & Rubber Co.

137 F.R.D. 657, 1991 U.S. Dist. LEXIS 9783, 1991 WL 128474
CourtDistrict Court, C.D. Illinois
DecidedJuly 10, 1991
DocketNo. 86-4024
StatusPublished
Cited by8 cases

This text of 137 F.R.D. 657 (Jones v. Goodyear Tire & Rubber Co.) is published on Counsel Stack Legal Research, covering District Court, C.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jones v. Goodyear Tire & Rubber Co., 137 F.R.D. 657, 1991 U.S. Dist. LEXIS 9783, 1991 WL 128474 (C.D. Ill. 1991).

Opinion

ORDER

MIHM, District Judge.

Before the Court are a Motion by the Plaintiffs for sanctions against Defendant Goodyear Tire and Rubber Company (“Goodyear”) (# 78) and Motions by Defendant Firestone Tire and Rubber Company (“Firestone”) and Goodyear for an order (# 114 and # 116) certifying an interlocutory appeal under 28 U.S.C. § 1292(b). This Court grants both of these Motions.

JURISDICTION

This product liability action was originally filed in the Circuit Court of the Fourteenth Judicial Circuit, Rock Island County, Illinois against Goodyear. Goodyear removed this case pursuant to 28 U.S.C. § 1441(a) and (b) as there was complete diversity of citizenship between Goodyear and the Plaintiffs under 28 U.S.C. § 1332. The Plaintiffs are both citizens of the State of Illinois, and Goodyear is an Ohio corporation with its principal place of business in Akron, Ohio. On July 3, 1986, the Plaintiffs amended their Complaint adding Firestone as a Defendant. The addition of Firestone did not destroy diversity as Firestone is an Ohio corporation whose principal place of business is in Ohio.

FINDINGS OF FACT

Goodyear’s local attorney, Peter Lous-berg, signed a Stipulation and Protective Order on May 16, 1986 and he later agreed to an Addendum to the Protective Order which included the Goodyear side ring allowing Goodyear 45 days from May 16, 1986 to examine and inspect the side ring and rim base without destructive testing. Specifically, Goodyear agreed to the entry of the Protective Order requiring it to “preserve, keep safe and maintain the rim base [and side ring] in an unaltered state” while in Goodyear’s custody.

In May 1986, Steven McManigal, the local Rock Island, Illinois Goodyear store manager, was asked by Ed Jano, a Goodyear products service representative in Chicago, to pick up and take physical custody of two pieces of a multi-piece truck tire rim, i.e., rim base and side ring, from the offices of a private investigator in Rock Island, Illinois. (Report of Proceedings of Evidentiary Hearing on 11-9-91,1 Document # 112 at 6-7).

On May 16, 1986, McManigal met Goodyear’s local attorney at the private investigator’s office in Rock Island and signed a receipt acknowledging the transfer of custody of the rim base and side ring. (R. at 8).

McManigal was advised by Ed Jano that he should ship the rim base and side ring to a J.G. Gerbeth at the Metals Product Division of Goodyear in Akron, Ohio, via United Parcel Service (UPS). (R. at 8-10).

Neither Jano nor other Goodyear employees or attorneys provided McManigal with special instructions regarding the proper method of shipment of the rim base and side ring to Goodyear in Akron. McMani-gal received no specific packaging instructions, no instructions as to whether the item should be shipped via air freight or ground transportation, and no instructions as to whether the two rim pieces should be shipped separately. (R. at 8).

McManigal did not discuss with anyone why the rim base and side ring were to be picked up and sent to Goodyear Akron. (R. at 9).

McManigal was made aware from attorney Lousberg prior to his actual shipment of the rim base and side ring to Goodyear [659]*659of the existence of a Stipulation and Protective Order applicable to the custody of the two pieces while in the possession of Goodyear. (R. at 10).

McManigal was unaware and did not discuss the specifics of the Protective Order with Goodyear’s attorneys or employees and he did not know that a federal lawsuit was pending against Goodyear which claimed that some defective aspect of the rim base and side ring may have caused personal injury. (R. at 11).

McManigal was not instructed by anyone to put the items in cartons or cardboard boxes or to ship them separately or protect them with type of covering. McManigal could not recall any instructions given to him about how to ship the items in order to comply with the Protective Order. (R. at 12).

McManigal did not speak with someone with the Metal Products Division of Goodyear in Akron before the actual shipment because he had simply been advised to ship the two items via UPS with separate tags. (R. at 41-42). McManigal called UPS the day before the shipment to arrange to ship a steel rim base of approximately 46 pounds from the Rock Island Goodyear store to the Metal Products Division at Goodyear Akron, Ohio. McManigal provided UPS with the shipment address given to him by Ed Jano as follows: 1376 Techway Drive, Akron, Ohio 44326. (R. at 12-15).

On May 22, 1986, McManigal gave the rim base and side ring (which he had personally taped together with two shipping tags) to a UPS delivery man, James Chambers. McManigal wrote “Goodyear Metals Products, J.G. Gerbeth, 1377 Techway Drive” on each shipping tag. McManigal did not speak with or inform Gerbeth of the shipment prior to actual shipment to Goodyear in Akron. (R. at 17-18).

The decision on how to package the items for shipment was McManigal’s alone. (R. at 20). McManigal put the side ring on top of the rim base and taped them together with cellophane tape which left approximately 50% of the rim base edges untaped and exposed. McManigal placed one tag on the side ring and taped it on and then placed another tag on the rim base itself and taped it on. (R. at 24).

McManigal did not ask Chambers for advice or instructions on how to package the items properly for shipment. Chambers did suggest that the exposed sharp and protruding edges of the rim base should be covered with some additional tape which Chambers placed around the rim base. McManigal did not inform Chambers that the items being shipped were irreplaceable evidence in a pending lawsuit, and he did not tell Chambers that it was important that the items not be damaged or separated in transit. (R. at 27).

In Chambers’s experience as a UPS pick up and delivery driver since December of 1975, he could not recall any time when he has picked up a heavy metal tire rim for shipment that was not in a carton or box. (R. at 69-70).

McManigal had no knowledge regarding how long it would take UPS to ship the two items from Rock Island to Goodyear in Akron. He was unaware that UPS had guidelines on approximate shipping times. He made no inquiries of Goodyear employees or the UPS regarding how many days the shipment would take to arrive at Goodyear Akron. (R. at 28).

McManigal does not recall informing anyone at Goodyear in Akron that the shipment had left his possession on or about May 22, 1986. (R. at 28). He recalled that it was sometime within 60 days after the shipment that he received a telephone call from someone at Goodyear in Akron advising him that the shipment had not arrived at Goodyear in Akron and that he should put a tracer on the shipment through UPS. (R. at 30-31). McManigal believed this initial telephone call may have occurred two, three, or four weeks after the shipment. After he called UPS to place a tracer and providing them with the date of the shipment, the UPS called McManigal back and advised him that the shipment was delivered to Goodyear in Akron. Sometime later, McManigal learned that the side ring had not been received by Goodyear in Akron along with the rim base. (R. at 33-34).

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137 F.R.D. 657, 1991 U.S. Dist. LEXIS 9783, 1991 WL 128474, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-goodyear-tire-rubber-co-ilcd-1991.