563 F.Supp. 91 (D.R.I. 1983), Civ. A. 82-0659, Kussmaul v. Peters Const. Co., Inc.

Docket Nº:Civ. A. 82-0659
Citation:563 F.Supp. 91
Party Name:Kussmaul v. Peters Const. Co., Inc.
Case Date:April 07, 1983
Court:United States District Courts, 1st Circuit, District of Rhode Island

Page 91

563 F.Supp. 91 (D.R.I. 1983)




Civ. A. No. 82-0659 S.

United States District Court, D. Rhode Island.

April 7, 1983

Page 92

        Lovett, Morgera, Schefrin & Gallogly by Aram R. Schefrin, Providence, R.I., for plaintiff.

        Hinckley & Allen by William R. Grimm, Providence, R.I., for defendant.


        SELYA, District Judge.

         This is a personal injury action brought by a Massachusetts resident against a Rhode Island corporation; jurisdiction is apparently based on diversity of citizenship pursuant to 28 U.S.C. § 1332. 1 The case is before the Court on defendant's motion for summary judgment. In its motion, the defendant contends that the action is time-barred by R.I.G.L. § 9-1-14 2 because it was commenced more than three years after accrual of the cause of action. The plaintiff's objection is based on his assertion that the action was timely instituted.

        The facts necessary for resolution of the motion are not in dispute. The defendant was engaged as the general contractor for renovating St. Ann's Mausoleum in Cranston, R.I. Certain roofing work was subcontracted to Roofing Systems, Inc. (plaintiff's employer). On October 11, 1979, the plaintiff, while working, plunged through an aperture in the roof, sustaining injuries allegedly attributable to the defendant's want of due care. The instant action was filed in this Court on October 13, 1982. 3

        A party will not be entitled to summary judgment under Fed.R.Civ.P. 56 unless the movant demonstrates that there is no genuine issue as to any material fact and that entitlement to judgment follows as a matter of law. Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976); United Nuclear Corp. v. Cannon, 553 F.Supp. 1220, 1226 (D.R.I.1982). Assertion of the preclusory bar of a statute of limitations by way of a motion for summary judgment is appropriate with no relevant facts in dispute. Admiralty Fund v. Jones, 677 F.2d 1289, 1293 (9th Cir.1982) ;

Page 93

Buder v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 644 F.2d 690, 692 (8th Cir.1981); Sanchez v. Loffland Brothers Co., 626 F.2d 1228, 1231 (5th Cir.1980), cert. denied, 452 U.S. 962, 101 S.Ct. 3112, 69 L.Ed.2d 974 (1981); King v. Mordowanec, 46 F.R.D. 474, 480, (D.R.I.1969). The Court is persuaded that this case is ripe for brevis disposition.

        The plaintiff does not dispute the applicability of R.I.G.L. § 9-1-14 to his claim; nor does he take issue with the fact that the action accrued on October 11, 1979 for purposes of § 9-1-14. The plaintiff's opposition to the pending motion is founded upon his interpretation of Rule 6(a), Fed.R.Civ.P. ("Fed. 6"), which provides as follows:

In computing any period of time prescribed or allowed by these rules, by the local rules of any district court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. When the period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. As used in this rule and in Rule 77(c), "legal holiday" includes New Year's Day, Washington's Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day, Christmas Day, and any other day appointed as a holiday by the President or the Congress of the United States, or by the state in which the district court is held.

        Plaintiff concedes that, as measured by Fed. 6, the statute of limitations "would normally have run ... on [Monday,] October 11, 1982". Plaintiff's Memorandum at 1. Plaintiff notes, however, that the district court was not open for business on that date; it was the second Monday in October, and was, therefore, the "legal public holiday" observance of what is commonly referred to as the discovery of America 4 by Christopher Columbus. 5 U.S.C. 6103(a). To this juncture, the parties are wholly in accord.

        The plaintiff, however, next essays a thaumaturgical exercise in necromancy designed to dazzle the eye of the beholder: he points out that, astrictive congressional edicts as to the observance of public holidays notwithstanding, the actual anniversary of the sighting of land by the intrepid fifteenth-century explorer occurred on October 12th...

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