The opinion of the court was delivered by: WEBER
These three consolidated cases arise out of two separate incidents in which plaintiff claims she was injured. Defendant has filed motions for Summary Judgment in each case on the grounds that the negligence claims asserted under the Jones Act are barred by the three year statute of limitations upon such claims, that the seaworthiness claims under the general maritime law are barred by laches and that the claim for maintenance and cure must fail for want of notice and demand for maintenance and cure by plaintiff.
These motions for summary judgment were filed at the end of all pretrial preparation, and the grounds therefor were thoroughly reviewed at the pretrial conference as well as the full hearing on the motions. Plaintiff's counsel was warned before the hearing that the brief which he filed was not a sufficient response to the evidentiary matters submitted by movant and he was allowed additional time. After the hearing he was allowed further time to supply evidentiary materials.
We believe that Fed. R. Civ. P. 56(e) as amended places a real burden on a responding party that cannot be met by mere allegations or briefs, and the plaintiff has been afforded ample opportunity to meet this burden:
The chronology of the various claims is as follows:
Civil Action No. 69-809, filed July 7, 1969, asserts a claim for negligence under the Jones Act, and unseaworthiness under the general maritime law for an injury allegedly received in October, November or December 1962, whereby as a result of an attack by a fellow member of the crew, her back was injured.
Civil Action No. 69-1225 asserts a claim for maintenance and cure arising out of the above incident and consequential damages.
Civil Action No. 70-394, filed April 3, 1970, asserts a claim for negligence under the Jones Act, and unseaworthiness under the general maritime law, and for maintenance and cure for injuries allegedly received in 1963 when oven doors in the galley stove of the vessels fell open and struck her legs causing various circulatory troubles and consequential damages for failure to pay maintenance and cure.
I. The Jones Act Claims for Negligence.
(Civil Action No. 69-809 and Civil Action No. 70-394).
With respect to allegations under the Jones Act for negligence the action must be brought within the three year statute of limitations found in 45 U.S.C. § 56. None of the Jones Act claims were brought within this period.
The three year statute of limitations under Jones Act actions "is one of substantive right, setting a limit to the existence of the obligation which the Act creates." Engel v. Davenport, 271 U.S. 33, 38, 46 S. Ct. 410, 412, 70 L. Ed. 813 .
However, the court may apply equitable principles to estop a defendant to assert the statute of limitations where his own conduct or representations have caused plaintiff to delay filing suit. Glus v. Brooklyn Eastern District Terminal, 359 U.S. 231, 79 S. Ct. 760, 3 L. Ed. 2d 770 .
In response to the motion and evidentiary material filed by defendant in support of the motion, plaintiff produces the following evidentiary material:
(a) Her affidavit that she was fearful of losing any employment or would be blacklisted for employment by other companies if she filed suit;
(b) Deposition testimony of plaintiff that the failure of any physicians consulted to support her claim that the symptoms which she suffered were from the back injury alleged until 1968;
(c) Deposition testimony of plaintiff that she was unaware of her rights to sue for injuries ...