Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

MCVAN v. BOLCO ATH. CO.

November 20, 1984

Brian P. McVAN and Michelle B. McVan
v.
BOLCO ATHLETIC COMPANY v. The UNITED STATES of America DEPARTMENT OF the ARMY



The opinion of the court was delivered by: POLLAK

 LOUIS H. POLLAK, District Judge.

 In this action, plaintiffs Brian and Michelle McVan seek to recover damages for injuries Brian McVan suffered in a softball game at Fort Dix, New Jersey in May 1982. The alleged injury occurred when plaintiff *fn1" slid into second base; the design of the base and its anchor allegedly caused severe and multiple injuries to plaintiff's leg.

 Plaintiff filed this action against Bolco Athletic Company, the alleged manufacturer of the offending base. Bolco then filed a third-party complaint against the United States, alleging that plaintiff's injuries, if any, were caused by the "negligence or other liability activity" of the Department of the Army. Third-Party Complaint at para. 3. The third-party complaint does not allege any particular facts which might give rise to a finding of negligence on the Army's part.

 The United States has moved to dismiss the third-party complaint, either under Federal Rule of Civil Procedure 12(b)(1) or under Rule 56(c), because the third-party complaint falls within the Feres doctrine, which holds that the Government has not waived sovereign immunity (and therefore cannot be sued) for injuries to those in active military service, when those injuries are "incident to" such service. See Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 (1950). See also Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S. Ct. 2054, 52 L. Ed. 2d 665 (1977). Plaintiff has filed a memorandum in support of the Government's motion.

 Bolco opposes the Government's motion on two grounds. First, Bolco urges that it has not had sufficient discovery to respond to a motion for summary judgment. See Fed.R.Civ.P. 56(f). Second, Bolco maintains that genuine issues of material fact remain as to the Army's connection with the softball game and Bolco's own relationship to the Army.

 Although the Government initially characterized its motion as a motion to dismiss under Rule 12(b), all sides have since treated it as a motion for summary judgment. Accordingly, I will so consider it here. The threshold question is whether Bolco's request for an extension of time in which to respond should be granted pursuant to Rule 56(f). If such an extension is not justified under Rule 56(f), I must consider whether, based on the affidavits before the court, there is a genuine issue of material fact that would justify permitting Bolco to go forward with its third-party claim against the Government. Fed.R.Civ.P. 56(c). See, e.g., Peterson v. Lehigh Valley District Council, 676 F.2d 81, 84 (3d Cir. 1982); Betz Laboratories, Inc. v. Hines, 647 F.2d 402, 404 (3d Cir.1981).

 I. Bolco's Request for a Rule 56(f) Extension of Time

 Federal Rule of Civil Procedure 56(f) provides relief for a party unable to respond to a motion for summary judgment because of insufficient opportunity for discovery. The purpose of the rule is to prevent premature grants of summary judgment in cases where, given adequate time to obtain discoverable material from the moving party, the party opposing the motion might be able to establish genuine issues of fact which would preclude summary judgment. See Ward v. United States, 471 F.2d 667, 670-71 (3d Cir.1973); C. Wright, A. Miller & M. Kane, Federal Practice and Procedure: Civil 2d ยง 2740 (1983). Under many circumstances, parties seeking relief under Rule 56(f) should be granted that relief "almost as a matter of course." Ward v. United States, 471 F.2d at 670; Costlow v. United States, 552 F.2d 560, 563-64 (3d Cir.1977). Such is the case particularly where the party opposing the motion possesses critically important evidence and there is some reason for doubt about what that evidence may ultimately show. See Ward v. United States, 471 F.2d at 670-71.

 At the same time, Rule 56(f) does not provide parties with a doctrinal vehicle for defeating motions for summary judgment based on unsupported speculation about what may be forthcoming if an extension is granted. Mid-South Grizzlies v. National Football League, 720 F.2d 772, 779-81 (3d Cir.1983), cert. denied, 467 U.S. 1215, 104 S. Ct. 2657, 81 L. Ed. 2d 364 (1984). Thus, the Rule states that a party must submit affidavits showing why it cannot "justify [its] opposition" to the motion in order to receive an extension of time in which to respond. The requirement that affidavits must be filed is no mere mechanical trap for unwary lawyers; rather, it serves the important purpose of preventing delay in cases where there is no basis for supposing that, if only the time for response is stretched out, an issue of fact may emerge. Judge Freedman's exposition of this principle, quoted below, remains apt:

 
It is true that Rule 56(f) also authorizes the court in appropriate cases to refuse to enter summary judgment where the party opposing the motion shows a legitimate basis for his inability to present by affidavit the facts essential to justify his opposition; but to take advantage of this provision he must state by affidavit the reasons for his inability to do so and these reasons must be genuine and convincing to the court rather than merely colorable. It is not enough to rest upon the uncertainty which broods over all human affairs or to pose philosophic doubts regarding the conclusiveness of evidentiary facts. In the world of speculation such doubts have an honored place, but in the daily affairs of mankind and the intensely practical business of litigation they are put aside as conjectural.

 Robin Construction Co. v. United States, 345 F.2d 610, 614 (3d Cir.1965) (quoted in Mid-South Grizzlies v. National Football League, supra, 720 F.2d at 779-80).

 Judge Freedman's discussion applies to Bolco's 56(f) motion on two levels. First, Bolco did not file an affidavit stating why it could not now respond to the Government's motion. That omission is by itself sufficient reason to deny Bolco the relief it seeks. See Mid-South Grizzlies v. National Football League, supra, 720 F.2d at 780 & n. 4 (citing cases). In addition, the factual uncertainties raised in Bolco's brief are, as I discuss below, either irrelevant to the legal issue raised by the Government's motion or too speculative to constitute potentially "genuine" issues of fact under Rule ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.