The opinion of the court was delivered by: Richard W. Roberts United States District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Marla Hunt has sued DePuy Orthopaedics, Inc. ("DePuy"), manufacturer of her prosthetic hip, for breach of implied warranties, breach of express warranty, and replevin. DePuy moves for summary judgment, arguing that no express warranty was made, and that the implied warranty and replevin claims are barred by the statute of limitations. Because DePuy's argument regarding the express warranty is unopposed, and the statute of limitations has run on the breach of implied warranty claims, but not on the replevin claim, DePuy's motion for summary judgment will be granted in part and denied in part.
In January 1994, Hunt, a Maryland resident (Am. Compl. ¶ 2), had replacement hip surgery in the District of Columbia. (Def.'s Mem. of P. & A. in Supp. of Renewed Mot. for Summ. J. ("Def.'s Mem.") at 4.) Her surgeon, Dr. James Graeter, used a prosthetic hip manufactured by DePuy, an Indiana corporation. (Def.'s Mem. -2-at 5; Notice of Removal ¶ 2.) Before and after her surgery, Dr. Graeter told Hunt that the prosthesis would last "25 years to life." (Am. Compl. ¶¶ 11, 17.) Hunt believes Dr. Graeter based this statement on representations made to him by DePuy. (Def.'s Mem. at 7.) In April 1999, Dr. Paul Manner repaired Hunt's prosthetic hip that Dr. Graeter had implanted. (Id. at 6.) Following her 1999 surgery, Dr. Manner told Hunt that a DePuy sales representative took possession of a hip prosthesis part that had been removed from her. (Id.)
Hunt filed against DePuy in the Superior Court for the District of Columbia an action which was removed to this court based upon diversity jurisdiction. She was given leave to depose Dr. Graeter, but after meeting with him, represented that Dr. Graeter's deposition would be unnecessary. (Nov. 3, 2006 Status Report at 2.) Hunt's amended complaint alleges claims for breach of implied warranty of fitness for a particular purpose, breach of implied warranty of merchantability, breach of express warranty, and replevin. DePuy moves for summary judgment, arguing that the implied warranty and replevin claims --Counts 1, 2, and 4 -- are barred by the statute of limitations, and that the express warranty claim -- Count 3 -- must fail because there is no evidence that DePuy made an express warranty to Hunt. (Def.'s Mem. at 8, 12.) Hunt filed an opposition.*fn1
On a motion for summary judgment, "[t]he inquiry performed is the threshold inquiry of determining whether there is the need for a trial -- whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Summary judgment may be granted only where "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). A material fact is one that is capable of affecting the outcome of the litigation. Liberty Lobby, Inc., 477 U.S. at 248. A genuine issue is one where the "evidence is such that a reasonable jury could return a verdict for the nonmoving party[,]" as opposed to evidence that "is so one-sided that one party must prevail as a matter of law."
Id. at 248, 252. A court considering a motion for summary judgment must draw all "justifiable inferences" from the evidence in favor of the non-movant. Id. at 255. 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. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, the non-movant must "come forward with specific facts showing that there is a genuine issue for trial." Id. at 587 (emphasis in original) (internal quotation marks 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).
"A federal court sitting in diversity must apply state law to the substantive issues before it[,]" and limitations periods are considered substantive issues requiring resort to state law for the purposes of this inquiry. A.I. Trade Fin., Inc. v. Petra Int'l Banking Corp., 62 F.3d 1454, 1458 (D.C. Cir. 1995). In order to determine whether the District of Columbia or Maryland's limitations periods apply, a "federal court looks to the choice-of-law rules of the state in which it sits." Id. The District of Columbia choice-of-law rule requires the District's own limitations periods to be applied. Material Supply Int'l, Inc. v. Sunmatch Indus. Co., Ltd., 146 F.3d 983, 992 (D.C. Cir. 1998) (citing A.I. Trade Fin., Inc., 62 F.3d at 1458); see also Tolbert v. Nat'l Harmony Mem'l Park, 520 F. Supp. 2d 209, 211 (D.D.C. 2007) (stating that because a federal court applies the choice-of-law rules of the state in which it sits in a diversity case, the court looked to the District of Columbia's choice-oflaw rule, which required application of the District's own limitations periods). Since DePuy raises statute of limitations arguments for Counts 1, 2, and 4, the District of Columbia's limitations periods will be applied.
II. IMPLIED WARRANTIES - COUNTS 1 & 2
DePuy asserts that Hunt's implied warranty claims are time- barred because the statute of limitations began running on January 10, 1994, when Hunt underwent hip surgery, and ended on January 10, 1998. (Def.'s Mem. at 13-14.) Hunt did not file suit until 2003.
Under D.C. Code § 28:2-725, "[a]n action for breach of any contract for sale must be commenced within four years after the cause of action has accrued." D.C. Code § 28:2-725(1). See also Lee v. Wolfson, 265 F. Supp. 2d 14, 19 (D.D.C. 2003) (applying § 28:2-725 to a breach of implied warranty claim involving an automobile). In determining when the statute of limitations starts to run, § 28:2-725 states that [a] cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.
D.C. Code § 28:2-725(2). Claims for breach of implied warranties do not fall within the exception for warranties that extend to future performance. See Britt v. Schindler Elevator Corp., 637 F. Supp. 734, 738 (D.D.C. 1986) (rejecting the argument that "all implied warranties are necessarily continuing and that [the] claim falls within the 'future performance' exception to Section 28:2-725(2)"); 63B Kimberly Castelaz et al., American Jurisprudence - Products Liability § 1584 (2d ed. 2008) ("The impossibility of discovering a defect at the time of sale or delivery will not ordinarily create a warranty that extends to future performance . . .; it has been recognized, in this regard, that an implied warranty, by its very nature, cannot explicitly extend to future ...