                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA

______________________________
                              )
MARLA HUNT,                   )
                              )
     Plaintiff,               )
                              )
     v.                       )       Civil Action No. 03-900 (RWR)
                              )
DEPUY ORTHOPAEDICS, INC.,     )
                              )
     Defendant.               )
______________________________)


                         MEMORANDUM OPINION

     Plaintiff Marla Hunt sued DePuy Orthopaedics, Inc.

(“DePuy”), manufacturer of her prosthetic hip, for breach of

implied warranties, breach of express warranty, and replevin.

DePuy filed a motion for summary judgment, which was granted with

respect to all of Hunt’s claims except for replevin, and now

moves again for summary judgment on the replevin claim.   Because

Hunt’s abandonment of the prosthetic hip components is a complete

defense to her replevin claim, DePuy’s motion for summary

judgment will be granted.

                             BACKGROUND

     The background of this case is discussed fully in Hunt v.

DePuy Orthopaedics, Inc., 636 F. Supp. 2d 23 (D.D.C. 2009).

Briefly, Hunt had hip replacement surgery in 1994 and required

repairs to the prosthetic hip, manufactured by DePuy, five years

later.   Id. at 24-25.   The surgeon who repaired Hunt’s hip in
                                - 2 -

1999, Dr. Paul Manner, gave the defective hip prosthesis

components to a DePuy sales representative to take back to the

company and informed Hunt after the surgery that DePuy was in

possession of the components.   (Def.’s Mem. of P. & A. in Supp.

of Def.’s Mot. for Summ. J. as to Pl.’s Replevin Claim (“Def.’s

Mem.”), Ex. A, Hunt Dep. at 149:1-5; Ex. B. at 6.)   After four

years elapsed, Hunt requested the return of the hip components by

filing this claim for replevin.   Hunt, 636 F. Supp. 2d at 28.

DePuy has filed a motion for summary judgment, arguing that the

hip is valueless and that Hunt abandoned the hip.    (Def.’s Mem.

at 1-2.)

                             DISCUSSION

     Summary judgment may be granted when “the pleadings, the

discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(c); see also Moore v. Hartman, 571 F.3d 62, 66

(D.C. Cir. 2009).    A court considering a motion for summary

judgment must draw all “justifiable inferences” from the evidence

in favor of the nonmovant.   Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 255 (1986).   The nonmoving party, however, must do more

than simply “show that there is some metaphysical doubt as to the

material facts.”    Matsushita Elec. Indus. Co., Ltd. v. Zenith

Radio Corp., 475 U.S. 574, 586 (1986).    Rather, the nonmovant
                                - 3 -

must “come forward with specific facts showing that there is a

genuine issue for trial.”   Id. at 587 (internal quotation marks

and emphasis omitted).   In the end, “the plain language of Rule

56(c) mandates the entry of summary judgment . . . against a

party who fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on

which that party will bear the burden of proof at trial.”

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

     Replevin is an action “brought to recover personal property

to which the plaintiff is entitled, that is alleged to have been

wrongfully taken or to be in the possession of and wrongfully

detained by the defendant[.]”   D.C. Code § 16-3701.   While the

D.C. Court of Appeals has never held explicitly that abandonment

of personal property is a defense to a replevin action, it has

held that “[a]bandonment of personal property is a complete

defense to an action for conversion.”   Block v. Fisher, 103 A.2d

575, 576 (D.C. 1954).    The “essence” of both a replevin action

and a conversion action is the “wrongful withholding of the

property in question.”   Mac’Avoy v. Smithsonian Inst., 757 F.

Supp. 60, 67 (D.D.C. 1991).   Because a defendant cannot

wrongfully withhold property that the plaintiff has abandoned,

abandonment must also serve as a complete defense to a replevin

action.   Accord Graff v. Triple B Dev. Corp., 622 S.W.2d 755, 756
                               - 4 -

(Mo. Ct. App. 1981) (“Abandonment, if proved, is a complete

defense to an action for replevin and precludes recovery.”).

     To prove abandonment, a party must demonstrate both an

intent to abandon and an act or omission that effectuates the

intention.   Block, 103 A.2d at 576.   Determining the intent to

abandon is a fact-intensive inquiry.   Am. Petroleum Inst. v. EPA,

216 F.3d 50, 57 (D.C. Cir. 2000) (per curiam).

     Here, Dr. Manner turned over the defective prosthetic hip

components to a DePuy sales representative after Hunt’s surgery.

Hunt argues in her brief that “[a]s a practical matter the

defendant would have seemed to have been a safe repository for

the appliance and plaintiff had no reason to request its return

until such time as she sought redress from the defendant for its

promotion and sale of the defective component[.]”   (Pl.’s Opp’n

at 5.)   However, she presents no discovery materials, affidavits,

or declarations reflecting specific facts showing her intent that

DePuy hold the components for safekeeping until she requested

their return in 2003.   The facts in the record show the opposite.

Hunt knew right after her surgery that DePuy had taken possession

of the components.   She neither voiced any objection nor asked

for the return of the components nor asked that DePuy’s

possession be temporary.   During the four years that went by

after DePuy took possession of the components, Hunt never asked

for them back, and there is no evidence that she sought assurance
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of their safekeeping.    The facts support only the inference that

Hunt abandoned the property.   See Block, 103 A.2d at 576 (finding

that appellant abandoned property he left in appellees’ yard for

eight months).   DePuy is therefore entitled to summary judgment

on the replevin claim.

                             CONCLUSION

     The undisputed material facts demonstrate that Hunt

abandoned the components.   That provides a complete defense

against her replevin claim, and entitles DePuy to judgment as a

matter of law.   Accordingly, DePuy’s motion [58] for summary

judgment will be granted.   An appropriate Order accompanies this

Memorandum Opinion.

     SIGNED this 4th day of August, 2010.


                                __________/s/_______________
                                RICHARD W. ROBERTS
                                United States District Judge
