                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 10-1155


HENRY D. MCLAURIN; MILLIE D. MCLAURIN,

                 Plaintiffs – Appellants,

           v.

VULCAN   THREADED   PRODUCTS,  INCORPORATED,   an   Alabama
Corporation; GRAND RAPIDS BOLT AND NUT, INCORPORATED, d/b/a
Great Lakes Fasteners,

                 Defendants – Appellees,

           and

EAST JORDAN IRON WORKS, INCORPORATED,

                 Defendant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:08-cv-00089-F)


Argued:   December 9, 2010             Decided:   February 10, 2011


Before GREGORY and SHEDD, Circuit Judges, and David A. FABER,
Senior United States District Judge for the Southern District of
West Virginia, sitting by designation.


Affirmed by unpublished opinion. Judge Shedd wrote the opinion,
in which Judge Gregory and Senior Judge Faber joined.
ARGUED: Daniel F. Read, Durham, North Carolina, for Appellants.
William Wayne Pollock, CRANFILL, SUMNER & HARTZOG, LLP, Raleigh,
North Carolina; Jeffrey Hart Blackwell, HEDRICK, GARDNER,
KINCHELOE & GAROFALO, LLP, Wilmington, North Carolina, for
Appellees.   ON BRIEF: Andrew D. Hathaway, CRANFILL, SUMNER &
HARTZOG, LLP, Raleigh, North Carolina; Erin T. Collins, HEDRICK,
GARDNER, KINCHELOE & GAROFALO, LLP, Wilmington, North Carolina,
for Appellees.


Unpublished opinions are not binding precedent in this circuit.




                                2
SHEDD, Circuit Judge:

       Henry   D.    McLaurin   and   Millie    D.    McLaurin    (collectively

“McLaurin”) brought this action against East Jordan Iron Works,

Vulcan Threaded Products, Inc., and Grand Rapids Bolt & Nut,

Inc.       McLaurin’s claims arise from the alleged failure of a

manhole cover handle that resulted in personal injury to Mr.

McLaurin. 1    The district court granted summary judgment in favor

of the defendants on all claims.             McLaurin now appeals.         For the

following reasons, we affirm.



                                       I.

       Mr. McLaurin was employed in North Carolina as a civilian,

non-uniformed       telecommunication       splicer   for   the   United    States

Department     of    Defense    (“USDOD”).        In    December     2005,     Mr.

McLaurin’s employment duties required him to enter a manhole

that was located just outside Fort Bragg’s main gate.                       As he

lifted the bar that was inserted under the U-shaped drop handle

(“U-bolt”) attached to the manhole cover, the horizontal portion

of the U-bolt sheared off from the two vertical portions and




       1
       Mr. McLaurin brought claims for negligence and breach of
warranty, and Mrs. McLaurin brought a claim for loss of
consortium. For ease of discussion, we refer to both plaintiffs
collectively herein simply as “McLaurin.”



                                        3
broke away, causing him to fall backwards and suffer personal

injuries.

       McLaurin filed a complaint against East Jordan Iron Works

(“EJIW”), Vulcan Threaded Products, Inc. (“Vulcan”), and Grand

Rapids Bolt & Nut, Inc. (“Grand Rapids”) claiming negligence,

breach      of   warranty,    and    loss    of   consortium.        The    record

establishes        that     Vulcan    manufactured        U-bolts     based    on

specifications submitted by EJIW through Grand Rapids.                       Grand

Rapids purchased the U-bolts from Vulcan and then sold them to

EJIW, who in turn incorporated them into EJIW’s manhole covers.

EJIW sold some of these manhole covers to Sta-Rite.                  The record

also       establishes    that   USDOD      entered   a   contract    with    ECI

Construction, Inc., for the construction of a new Access Control

Facility at Fort Bragg. Starr Electric Co., Inc., who was a

subcontractor for ECI, purchased manhole covers from Sta-Rite

for use on the Fort Bragg project and assembled the manhole

covers on the job site. 2

       After     McLaurin    voluntarily     dismissed    all   claims     against

EJIW, Vulcan and Grand Rapids filed separate motions for summary

judgment.        The district court granted summary judgment against


       2
       There is no dispute that the manhole cover in question was
manufactured by EJIW, and because it is not critical to our
analysis, we assume that EJIW used only Vulcan U-bolts in
manufacturing the manhole covers it sold to Sta-Rite.



                                         4
McLaurin on all claims against Grand Rapids, finding that Grand

Rapids had no duty under North Carolina law to inspect the U-

bolts.    The court also granted summary judgment against McLaurin

on the negligence claim against Vulcan, finding that McLaurin

had not introduced sufficient evidence of the relevant standard

of care or that Vulcan had violated the standard of care.                          At

the   court’s   direction,     Vulcan       then    filed      an   amended    answer

asserting privity as a defense to the warranty claim.                           After

receiving   Vulcan’s     amended   answer          and   two    sur-replies      from

McLaurin, which the court had instructed McLaurin to file to

address   aspects   of   the    breach      of     warranty     claim,   the    court

granted summary judgment in favor of Vulcan on the remaining

claims for breach of implied warranty and loss of consortium. 3



                                    II.

      Summary   judgment   is    appropriate         “if    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). We review the district court's order

      3
       Mrs. McLaurin’s loss of consortium claim is derivative and
dependent on Mr. McLaurin’s ability to recover for negligence or
breach of warranty.    Because we find that Mr. McLaurin cannot
succeed on either of his claims, we affirm the district court’s
dismissal of the loss of consortium claim.



                                        5
granting summary judgment de novo. Jennings v. Univ. of North

Carolina, 482 F.3d 686, 694 (4th Cir. 2007) (en banc).

       We        find     the     district    court       properly    granted     summary

judgment in favor of the defendants as to all of McLaurin’s

claims.           Regarding his negligence claims, McLaurin failed to

proffer any evidence establishing the relevant standard of care

owed       by    Vulcan      or   Grand   Rapids.         See   Nicholson    v.   American

Safety Utility Corp., 476 S.E.2d 672, 676 (N.C. Ct. App. 1996).

As     to       Vulcan’s      alleged     negligent        manufacturing,     McLaurin’s

expert          witness,     Bill   W.    Hong,       specifically   testified     in   his

deposition that he did not know what the industry standard is

for manufacturing U-bolts.                 To the extent McLaurin now relies on

Hong’s affidavit testimony to establish the industry standard of

care for manufacturing U-bolts, that testimony is inadmissible

because          it     is    inconsistent        with     Hong’s    prior    deposition

testimony.            See Rohrbough v. Wyeth Lab, Inc., 916 F.2d 970, 975

(4th Cir. 1990). 4

       Further, as to Vulcan and Grand Rapid’s alleged negligent

failure to inspect the U-bolts, the closest McLaurin comes to

establishing a standard of care for inspecting U-bolts is Hong’s


       4
       We note that during oral argument McLaurin’s counsel
acknowledged there is no admissible evidence establishing the
standard of care for manufacturing U-bolts and therefore that
aspect of McLaurin’s negligence claim is no longer at issue.



                                                  6
affidavit opinion that “[a]t a minimum, the [U-bolt] should have

been inspected for cracks after bending.” J.A. 60.                            However, the

record establishes that Vulcan did perform a visual inspection

of one out of every ten U-bolts it manufactured, and McLaurin

presented         no     evidence       that     this     method     of     inspection           is

insufficient or violates any standard of care as a matter of

law.     Moreover, because Grand Rapids ordered the U-bolts from

Vulcan and sold them directly to EJIW, Grand Rapids was acting

as a “mere conduit” and therefore it had no duty to inspect the

U-bolts.         See Nicholson, 476 S.E.2d at 676.

       We    also      find    that     McLaurin’s      warranty       claims       fail    as    a

matter      of    law.        The   district      court    correctly       concluded        that

North Carolina law bars implied warranty claims against a non-

manufacturing seller like Grand Rapids.                            See N.C. Gen. Stat.

§ 99B-2.          Similarly,        North      Carolina    law     precludes        McLaurin’s

warranty claim against Vulcan because there is no contractual

privity between Vulcan and McLaurin.                      See Crews v. W.A. Brown &

Son, Inc., 416 S.E.2d 924, 929 (N.C. Ct. App. 1992).                                  McLaurin

attempts to circumvent the privity requirement by claiming that

his employer, USDOD, purchased the manhole cover as part of a

construction           contract.        See      N.C.     Gen.      Stat.       §     99B-2(b)

(eliminating           the    privity    requirement       if    the      claimant     is    the

buyer or an employee of the buyer); N.C. Gen. Stat. § 25-2-

103(1)(a) (defining “buyer” under the UCC as a person who “buys

                                                 7
or   contracts     to    buy   goods”).        However,      the   district   court

correctly analyzed USDOD’s contract as a “mixed contract” and

found     that   the    predominant     purpose   of    the    contract   was   for

construction services rather than for the sale of goods under

Hensley v. Ray’s Motor Co. of Forest City, Inc., 580 S.E.2d 721,

724 (N.C. Ct. App. 2003). 5           Thus, USDOD was not a buyer of the

manhole    cover   as    defined   by    the   UCC,    and    therefore   McLaurin

cannot avail himself of any UCC implied warranty as an employee

of a buyer.



                                        III.

      For the foregoing reasons, we affirm the district court’s

orders granting summary judgment to the defendants.

                                                                          AFFIRMED




      5
       During oral argument, McLaurin’s counsel acknowledged that
under applicable precedent the contract in question was for
services rather than for the sale of goods.



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