Bergemann v. U.S., 84-2051

• Decision Date: 09 June 1987
• Docket Number: No. 84-2051,84-2051
• Citation: 820 F.2d 1117,8 Fed.R.Serv.3d 184
• Parties: Deborah D. BERGEMANN, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1117

820 F.2d 1117

8 Fed.R.Serv.3d 184

Deborah D. BERGEMANN, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 84-2051.

United States Court of Appeals, Tenth Circuit.

June 9, 1987.

Randall B. Aiman-Smith (Thomas G. Smith of Sterns, Smith, Walker, Pesonen & Grell, with him, on the brief), San Francisco, Cal., for plaintiff-appellant.

Jonathan M. Stern (Richard K. Willard, Acting Asst. Atty. Gen., Robert N. Miller, U.S. Atty., Denver, Colo., and James P. Piper, Sr. Aviation Counsel, Torts Branch, Civ. Div., U.S. Dept. of Justice, Washington, D.C., with him, on the brief), for defendant-appellee.

Before McKAY, BALDOCK and McWILLIAMS, Circuit Judges.

McWILLIAMS, Circuit Judge.

Mark Dunkle was killed in a mid-air collision of two small aircraft over Loveland, Colorado. Deborah Bergemann, claiming that she was the common law wife of Mark Dunkle, brought a wrongful death action in a state court of Colorado against Sky's West Parachute Center, Inc., a Colorado corporation, and Air U.S., also a Colorado corporation, the owners and operators of the two planes involved in the collision. On petition by Sky's West, the case was removed to the United States District Court for the District of Colorado on the ground that the basis for Bergemann's action was the Federal Aviation Act of 1958. Later, Air U.S. filed a third-party complaint against the United States, and, still later, Bergemann filed an amended complaint in which it added the United States as a party defendant. By amended answer, the United States on April 18, 1984, denied, inter alia, Bergemann's claim that at the time of Dunkle's death she was his common law wife. ¹

At some point in the proceedings, the several defendants agreed not to contest the liability for simple negligence but reserved the right to try all other issues. ² Included in the reserved issues was the question of whether Bergemann was the common law spouse of Dunkle at the time of the latter's death. A request to allow a jury to determine Bergemann's marital status before trying the issue of money damages was granted.

On January 10, 1984, Bergemann, pursuant to Fed.R.Civ.P. 36, served the United States with 57 requests for admission. Each of the 57 requests for admission provided that if the response was other than an unqualified "admit," numerous interrogatories in connection with each of the 57 requests should be answered. Request Number 57 asked the United States to admit that at the time of the air collision "a valid common law marriage existed under Colorado law between Dunkle and Deborah Bergemann." The United States did not answer this request for admissions within 30 days after service, as required by Rule 36, nor at any time thereafter.

On April 20, 1984, counsel for Bergemann filed a motion for default and for partial summary judgment against the United States on the issue of liability. The motion for default was based on the fact that the United States had not filed an answer to the amended complaint. The basis for the motion for partial summary judgment was that the United States, having already agreed that its negligence caused or contributed to the mid-air collision, by its failure to answer Request Number 57, was deemed, under Rule 36(a), to have admitted that a common law marriage existed between Bergemann and Dunkle on the date of the latter's death. In that motion, counsel stated that the request for admissions made on January 10, 1984, was mailed to James P. Piper at his correct mailing address at the Department of Justice in Washington, D.C.

On May 2, 1984, the United States filed a motion in opposition to Bergemann's motion for partial summary judgment. In that motion the United States stated that it had never received Bergemann's requests for admission, nor had it been advised by any of the other defendants, or by anyone else, of the existence of such requests. However, the United States indicated in its response that it was then in possession of a copy of the requests for admission and was in the process of answering them.

Attached to the response of the United States was the affidavit of James P. Piper, the Senior Aviation Counsel, Civil Division, United States Department of Justice. In the affidavit Piper stated that he first received Bergemann's requests for admission on April 17, 1984, when a copy of that request was attached to Bergemann's motion for summary judgment and that the records of the Department did not reflect any earlier receipt of such requests.

After several court hearings, which will be later examined more closely, the district court denied Bergemann's motion for summary judgment in her favor on the common law marriage issue. In denying the motion, the district court found that the United States had not received the original request, that the request had admittedly not been served on co-defendants in the case, as required by Fed.R.Civ.P. 5, that counsel for the United States had not been alerted by inquiry from any of other counsel in the case concerning the requests for admission, that the issue of common law marriage, or not, was the only real remaining issue in the case, and then, for all those reasons, denied the motion. Thereafter, the issue of whether Bergemann was the common law wife of Dunkle at the time of the latter's death was tried to a jury, which found that she was not Dunkle's common law wife.

Bergemann now appeals the district court's order denying her partial summary judgment on the common law marriage issue. Bergemann's position is that the district court erred in denying her summary judgment and that, notwithstanding the adverse verdict returned by the jury, she is still entitled to summary judgment in her favor on the matter. She requests that the case be remanded for trial for the fixing of damages only. Her counsel, at oral argument, candidly conceded that this is indeed an instance where Bergemann is seeking to "win what she lost by jury verdict" because the "government didn't file a piece of paper." We don't believe the rules are that rigid, and we are disinclined to grant Bergemann a victory on an issue which was resolved adversely to her by a jury after full hearing on the merits. The law sometimes works in strange ways, but not in this case.

A review of the several court proceedings leading up to the district court's denial of plaintiff's motion for partial summary judgment will put the present controversy in context. On April 13, 1984, the district court held a status hearing, at which time Bergemann was represented by both local and out-of-state counsel. At that particular hearing, the United States was represented by a representative from the local office of the United States Attorney. Air U.S. was also represented at this hearing. Sky's West was not represented at this hearing, and, apparently, it was not as of that time an active party to the proceeding.

At the April 13 hearing it was brought out that the United States had not as of that time filed an answer to Bergemann's amended complaint, though it had earlier filed an answer to Bergemann's initial complaint. At this time, there was ensuing colloquy between the judge and counsel about the fact that the United States (but not Air U.S.) had failed to file an answer to the amended complaint. The judge suggested that Bergemann file a motion for default against the United States. Counsel indicated he would so file, and opposing counsel responded with comment that default cannot generally be entered against the United States. Only...