UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-30702 Summary Calendar

STACY SIBLEY, ET. AL.,

Plaintiffs,

versus

EXXON MOBIL CORPORATION, also known as Exxon Company, USA,

Defendant-Third Party Plaintiff-Appellant,

versus

TUBE TURNS TECHNOLOGIES, INC.,

Third Party Defendant-Appellee. _________________________________________________________________

Appeal from the United States District Court for the Middle District of Louisiana (94-CV-1128) _________________________________________________________________ January 15, 2003

Before BARKSDALE, DEMOSS and BENAVIDES, Circuit Judges.

PER CURIAM:*

Pursuant to a Rule 54(b) judgment, ExxonMobil appeals the

summary judgment awarded third-party defendant Tube Turns

Technologies, Inc., claiming a genuine issue of material fact

exists concerning the unreasonable dangerousness of a steel pipe

manufactured by Tube Turns. On the other hand, ExxonMobil did not

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. present any evidence that Tube Turns knew that the pipe in question

was supposed to meet specifications provided to a third party by

ExxonMobil.

A summary judgment is reviewed de novo. E.g., Caboni v.

General Motorist Corp.,

(5th Cir. 2002).

“Summary judgment is proper only ‘if the pleadings, depositions,

answers to interrogatories and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to [a]

judgment as a matter of law’.”

(quoting Turner v. Houma Mun.

Fire & Police Civil Serv. Bd.,

(5th Cir. 2000)

(quoting FED. R. CIV. P. 56(c))). “We 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. We do not, however, in the absence of any

proof, assume that the nonmoving party could or would prove the

necessary facts.” Little v. Liquid Air Corp.,

(5th Cir. 1994) (emphasis in original).

ExxonMobil contends Tube Turns' manufacturing of a carbon

steel pipe, as opposed to the chromium steel pipe it ordered from

a third party intermediary, was unreasonably dangerous both in

construction and composition and because it did not comply with an

express warranty. The crux of ExxonMobil’s claim is not that the

pipe was unreasonably dangerous per se, but, rather, that the

2 carbon steel pipe was unreasonably dangerous with regard to the

manner in which Tube Turns knew, by virtue of the chromium steel

specifications in the purchase order, it would eventually be used

by ExxonMobil. But, ExxonMobil has offered no evidence that Tube

Turns received an order specifying chromium steel in the pipe. All

that ExxonMobil has offered is evidence that a third-party

intermediary was given an order for a chromium steel pipe.

AFFIRMED

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