* Pursuant to 5 TH C IR

. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the lim ited circumstances set forth in 5 T H C IR

. R.

47.5.4. UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 97-60572

____________

JEFF PAYNE,

Plaintiff-Appellant,

versus

MARTIN SPROCK ET & GEAR, INC., also known as

Martin Conveyer Corporation,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Mississippi

(3:95-CV-481LN)

May 29, 1998

Before DAVIS, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.

PER CURIAM: *

Jeff Payne appeals from the district court’s grant of summary

judgment to Martin Sprocket & Gear, Inc. (“Martin Sprocket”). The

district court based its decision solely on the determination that

Payne had failed to demonstrate the existence of a genuine issue of

material fact as to whether Martin Sprocket manufactured or sold

the allegedly defective machinery allegedly responsible for Payne’s

injuries. We reverse and remand.1 From 1976 to 1994, McCarty owned and ran the Forest plant;

prior to 1976, the plant was run by Gaddis Packing, Inc.

(“Gaddis”). In 1994, Tyson Foods (“Tyson”) bought McCarty and took

control of the Forest plant. Despite these changes in ownership,

the physical layout of the Forest plant has not changed since its

construction in the early 1970s.

-2- I

At all times relevant to this suit, Payne was employed as an

electrician by McCa rty Farms, Inc (“McCarty”). On June 19, 1992,

while working at McCarty’s chicken processing plant in Forest,

Mississippi (“Forest plant ”), 1 Payne was climbing over an ice

conveyer system to reach an electrical motor that had caught fire

when his foot came in contact with a moving auger, or screw. The

cover over the trough housing the auger slipped out of place, and

Payne’s leg was pulled into the auger, resulting in a complete

amputation of that leg at the hip. Payne sued Martin Sprocket,

alleging that the covers on the conveyer at the time of the

accident were negligently designed and/or defective in that they

were not properly at tached and did not properly protect those

working in and around the machine from coming into contact with the

moving auger.

Following almost two years of discovery, Martin Sprocket moved

for summary judgment, alleging tha t Payne could not produce

sufficient evidence to create a genuine issue of material fact as

to whether its predecessor, Fort Worth Steel & Machinery Co. (“Fort

Worth S teel”), had in fact manufactured the allegedly defective-3-

portion of the conveyer system. The district court granted Martin

Sprocket’s motion, and Payne filed this timely appeal.

II

We review a grant of summary judgment de novo

. See Wallace v.

Texas Tech Univ.

, 80 F.3d 1042, 1046 (5th Cir. 1996). The party

seeking summary judgment bears the burden of de monstrating the

absence of a genuine issue of material fact, but once that burden

is met, the nonmoving party must set forth “specific facts”

demonstrating that there is a genuine issue for trial. S ee Little

v. Liquid Air Corp

., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc);

Celotex Corp. v. Catrett

, 477 U.S. 317, 325, 106 S. Ct. 2548, 2553,

91 L. Ed. 2d 265 (1986). Thus, “[w]e resolve factual controversies

in favor of the nonmoving party, but only when there is an actual

controversy, that is, when both parties have submitted evidence of

contradictory facts.” Little , 37 F.3d at 1075.

Martin Sprocket alleges that Payne cannot prove that its

predecessor Fort Worth Steel produced or sold the allegedly

defective covers. According to Martin Sprocket, the only

documentary evidence indicating a sale from Fort Worth Steel to the

owners of the Forest plant is a purchase order stating that Gaddis

ordered a conveyer system with flanged covers for use at the Forest

plant in 1973——whereas James Mitchell, a former maintenance

supervisor at the Forest plant, has testified that the covers on2 Martin Sprocket also relies on the affidavit testimony of

Billy C. R odgers, the Manufacturing Manager of the Conveyer

Division of Martin Sprocket. Rodgers’ affidavit sets out numerous

alleged differences between t he conveyer components found at the

accident site and those manufactured by Fort Worth Steel. Rodgers’

also notes many differences between those parts listed on the 1973

purchase order and accompanying documents and the conveyer

components fo und at the site of the accident. Except as noted

above, none of these differences concern the particular product

a lleged in this suit to be defective, i.e.

, the cover over t h e

trough housing the auger.

3 Neither party has been able to examine the actual covers at

the scene of the accident because the managers at the Forest plant

-4- the conveyer at the time of Payne’s accident were flat

. 2 Payne’s

response consists primarily of an affidavit from Mitchell, stating

that in 1973, Mitchell was personally involved in the installation

of that portion of the auger system including the site of Payne’s

accident, and that Mitchell specifically remembers the parts of the

system coming in boxes labeled “Ft. Worth Steel and Machinery,”

with operating manuals and stickers also bearing that name.

Although Mitchell admits that certain portions of the system may

have been replaced over time, Mitchell’s affidavit asserts that the

“auger covers and trough were not materially changed before the

accident involving Jeffrey Payne.” In addition, Payne attempts to

refute Martin Sprocket’s evidence by noting that (1) the 1973

purchase order reflects only what Gaddis requested, not what Fort

Worth Steel actually delivered, (2) Martin Sprocket can produce no

witnesses w ith any personal knowledge of what was delivered, and

(3) Martin Sprocket does not deny that it produced flat covers in

1973. 3replaced and discarded them shortly after Payne’s injury.

-5- Martin Sprocket seeks to refute the import of Mitchell’s

testimony by noting that Mitchell himself admitted at his

deposition that although he did not remember replacing any of the

covers on the conveyer system generally, he was “almost sure that

we did.” Taken in context, this statement may raise questions as

to Mitchell’s precise memory of all repairs and replacements done

to the conveyer system at the Forest plant. It does not indicate,

however, that Mitchell is any less confident that from the date of

installation in 1973 until the date of Payne’s accident in 1992,

Forest plant personnel left the covers at the site of Payne’s

accident in place. Indeed, during that same deposition, shortly

before making the comments noted above, Mitchell was asked: “Is it

your testimony that between 1973 or ‘74 when [the conveyer line]

was installed up to 1993, that those covers that were originally

shipped remained in place on the auger, the ice auger system?”

Mitchell responded: “Yes, sir.”

In light of this unequivocal asser tion, based on Mitchell’s

personal knowledge, we find that a genuine issue of material fact

exists as to whether Martin Sprocket’s predecessor Fort Worth Steel

manufactured and/or sold the allegedly defective cover allegedly

responsible for Payne’s in jury. S ee, e.g., International

Shortstop, Inc. v. Rally’s, Inc.

, 939 F.2d 1257, 1263 (5th Cir.

1991) (“[E]ven if the moving party comes forward with an abundance-6-

of evidence supporting its theory of the case, the nonmoving party

may nevertheless defeat the motion by countering with evidence of

its own, which, if credited by the fact-finder, would entitle the

nonmoving party to a verdict in its favor.”).

The district court’s grant of summary judgment to Martin

Sprocket is REVERSED, and this case is REMANDED for further

proceedings consistent with this opinion.