Aubin Industries, Inc. v. JEFF SMITH, WELLINGTON INDUSTRIES, INC., n/k/a WI HOLDINGS, INC., STANDEX…

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0721n.06
Filed: November 20, 2008
No. 07-4239
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
AUBIN INDUSTRIES, INC.,
Plaintiff-Appellant,
v.
JEFF SMITH, WELLINGTON INDUSTRIES, INC.,
n/k/a WI HOLDINGS, INC., STANDEX
INTERNATIONAL CORP., COLSON CASTER
CORP., COLSON GROUP, INC., and
WELLINGTON INDUSTRIAL GROUP,
Defendants-Appellees.
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On Appeal from the United States
District Court for the Southern
District of Ohio
Before: BOGGS, Chief Judge; and GIBBONS and GRIFFIN, Circuit Judges
BOGGS, Chief Judge: Plaintiff Aubin Industries, Inc. makes industrial wheels.
Defendants have, at various times, owned the Wellington caster business. From
approximately 1998 to 2002, Wellington purchased wheels from Aubin and incorporated
them into casters, which Wellington then sold to Honda of America. The parties stopped
doing business in 2002 after Aubin discovered that Wellington had duplicated its wheel
and was using such wheel in its casters. Aubin sued for, inter alia, misappropriation of
trade secrets, deceptive trade practices, unfair competition, fraudulent misrepresentation,
negligent misrepresentation, breach of distributorship agreement, breach of joint venture,

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No. 07-4239
Aubin Industries, Inc. v. Smith, et al.
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and civil conspiracy. After both parties consented to his jurisdiction, a magistrate judge
granted summary judgment on all counts for the defendants.
The magistrate judge’s well-reasoned opinion properly granted summary
judgment for the defendants because Aubin has failed to produce any evidence of at least
one element of every of cause of action. We therefore affirm the substance of the
summary judgment based on the opinion of the magistrate judge. Only the procedural
decision to grant summary judgment sua sponte on the breach of joint venture claim
requires additional comment. Because the magistrate judge did not abuse his discretion
in considering summary judgment against Aubin sua sponte, the magistrate judge’s
opinion is affirmed in full.
Count III of Aubin’s second amended complaint is titled “Breach of
Partnership/Joint Venture against Wellington,” and it was brought against only one of the
defendants, Wellington Industries, Inc (“Wellington Industries”). J.A. 13. Wellington
Industries filed a motion for summary judgment on “all claims” and attached a
memorandum regarding only Count III. Id. at 104. Because the supporting memorandum
addressed only the partnership aspect of Count III, id. at 105–08, Aubin argues that
Wellington Industries did not request summary judgment on the joint venture claim and
therefore the grant was procedurally improper.
Even assuming that Wellington Industries did not properly move for summary
judgment on the joint venture claim, the magistrate judge had the power to grant
summary judgment sua sponte. See Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986).

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No. 07-4239
Aubin Industries, Inc. v. Smith, et al.
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The procedural decision to grant summary judgment sua sponte is reviewed for abuse of
discretion. Employers Ins. of Wausau v. Petroleum Specialties, Inc., 69 F.3d 98, 105 (6th
Cir. 1995). For a sua sponte grant to be permissible, the losing party must have had
notice that the court was considering summary judgment on the claim, as well as a
reasonable opportunity to present its arguments and evidence on the claim. Ibid. Notice
and opportunity are determined from the totality of the proceedings below, including
whether any party filed a motion for summary judgment on the claim and whether the
losing party addressed the claim in its arguments. Excel Energy, Inc. v. Cannelton Sales
Co., 246 F. App’x 953, 959–60 (6th Cir. 2007).
Aubin knew that the magistrate judge was considering summary judgment on the
joint venture claim because Aubin itself had moved for summary judgment on the claim.
J.A. 128. This motion gave Aubin an opportunity and an incentive to present all of its
evidence and arguments concerning the joint venture claim, which it did in its supporting
memorandum. Id. at 138–40. Furthermore, Aubin also addressed the issue in its reply
brief in support of summary judgment. Id. at 257. Therefore, the magistrate judge did
not abuse his discretion in granting summary judgment for Wellington Industries sua
sponte.
The magistrate judge’s decision granting summary judgment to the defendants on
all claims is AFFIRMED.

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