Charter Oak Fire Insurance v. JP & WJ, Inc.

MEMORANDUM *

Charter Oak Fire Insurance Company brought this suit against JP & WJ, Inc., d/b/a Certified Foodserviees Equipment (“Certified”) to recover for property damage and lost income that resulted from the explosion of an oven sold by Certified. In June 1999, the Blackbird Bakery purchased a used direct-fired oven from Certified. The oven was supplied to the Bakery in the same way that it was received by Certified — in pieces on a pallet. It was not equipped with a purge control system, a pre-ventilation mechanism to ensure that the baking chamber is filled with fresh, non-combustible air prior to ignition. Although Certified did not offer an express warranty, it also did not disclaim any implied warranty.

On June 1, 2000 — after approximately nine months of use — the oven exploded, damaging both the Bakery and a neighboring business. Charter Oak insured both businesses. After paying the two businesses a total of $253,339.32 to cover the property damage and lost income, Charter Oak commenced this action against Certi *652 fled, effectively seeking reimbursement of that sum.

The district court had jurisdiction pursuant to 28 U.S.C. § 1332 (a)(1). The parties agree that…

concurring in the judgment:

I concur in the majority’s judgment, and were I to reach the merits, I would concur in its reasoning as well. However, I would not reach the question — as the majority does — of whether the district court properly dismissed Charter Oak’s implied warranty of merchantability claim. Rather, I would summarily affirm in light of appellant’s failure to present an adequate record. See In re O’Brien, 312 F.3d 1135, 1137 (9th Cir.2002) (citing Perez v. Perez, 30 F.3d 1209, 1217-18 (9th Cir.1994); Lowery v. United States, 258 F.2d 194, 196 (9th Cir.1958); Dela Rosa v. Scottsdale Memorial Health Systems, Inc., 136 F.3d 1241 , 1243 n. 1 (9th Cir.1998)).

In violation of Ninth Circuit Rule 10-3.1, Charter Oak delayed approximately three months in ordering the designated trial transcripts. When Charter Oak filed its opening appellate brief in September 2005, it provided no trial transcripts whatsoever. 1 Charter Oak’s subsequent reply brief provided some transcripts but continued to omit critical portions of the record that were discussed or alluded to in the briefs. Notably, Charter Oak did not provide the district court’s oral ruling on Certified’s motion for a…