Gagne v. Carl Bauer Schraubenfabrick, GmbH

• Decision Date: 19 October 1984
• Docket Number: Civ. No. 82-0134-P.
• Citation: 595 F. Supp. 1081
• Parties: Roger N. GAGNE and Irene M. Gagne, Plaintiffs, v. CARL BAUER SCHRAUBENFABRICK, GmbH, Defendant, and POWER ANCHOR CORPORATION, Defendant and Third-Party Plaintiff, v. ROBERGE CONSTRUCTION, INC., Third-Party Defendant.
• Court: U.S. District Court — District of Maine

595 F. Supp. 1081

Roger N. GAGNE and Irene M. Gagne, Plaintiffs, v. CARL BAUER SCHRAUBENFABRICK, GmbH, Defendant, and POWER ANCHOR CORPORATION, Defendant and Third-Party Plaintiff, v. ROBERGE CONSTRUCTION, INC., Third-Party Defendant.

Civ. No. 82-0134-P.

United States District Court, D. Maine.

October 19, 1984.

George W. Beals, Thomas J. Quinn, Hewes Culley Feehan & Beals, Portland, Maine, David R. Ordway, Ordway & Delicata, Biddeford, Maine, for plaintiffs.

John N. Kelly, Graydon G. Stevens, Leland N. Chisholm, Kelly, Remmel & Zimmerman, Portland, Maine, for defendant.

Frederick C. Moore, Robinson & Kriger, Portland, Maine, for Roberge Const.

MEMORANDUM OF DECISION AND ORDER ON DEFENDANT POWER ANCHOR CORPORATION'S MOTION FOR RELIEF FROM JUDGMENT

GENE CARTER, District Judge.

I.

This case comes before the Court on the motion of Power Anchor Corporation as Third-Party Plaintiff against Third-Party Defendant Roberge Construction, Inc. for relief pursuant to Fed.R.Civ.P. 60(b)(6) from a judgment and order of this Court granting Power Anchor's Motion for Summary Judgment. On April 2, 1984, Roberge filed a Motion for Summary Judgment pursuant to Fed.R.Civ.P. 56. On April 24, 1984, this motion was granted by the endorsement of the Clerk, acting for the Court: "No objection having been filed, motion granted per Local Rule 19(b)."¹ (Emphasis in original.)

On April 26, 1984, Power Anchor filed a Motion for Relief from Judgment pursuant to Rule 60(b). The Court denied the motion in its Order of June 7, 1984. Gagne v. Carl Bauer Schraubenfabrick, 101 F.R.D. 777 (D.Me.1984).

Power Anchor filed a Second Motion for Relief from Judgment on June 29, 1984. In this motion, Power Anchor seeks relief under subsection (6) of Rule 60(b). The Court has determined that the standards of Rule 60(b) shall not be applied to this motion because the order granting summary judgment on April 24, 1984, is not a final judgment within the meaning of the Federal Rules of Civil Procedure.

Roberge brought its Motion for Summary Judgment as Third-Party Defendant. The Court's Order of April 24, 1984, adjudicated only the claim of Power Anchor as Third-Party Plaintiff against Roberge as Third-Party Defendant. The claims of the Plaintiffs against the two Defendants were not adjudicated on this motion.

Fed.R.Civ.P. 54(b) provides:

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

(Emphasis added.) Here, the Court made no "express determination that there is no just reason for delay" nor "an express direction for the entry of judgment." Rule 54(b) dictates, therefore, that the order granting summary judgment is not a final judgment because the rights of fewer than all the parties were adjudicated. Pahlavi v. Palandjian, 744 F.2d 902, (1st Cir.1984). The rule expressly provides that such an order "is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties." The order is merely interlocutory and not a final judgment. As such, its revision is not subject to the restrictive provisions of Rule 60(b), which applies by its terms only to "final" judgments, orders or proceedings.² The Court retains plenary power to afford such relief as justice requires. Vaughn v. Regents of University of California, 504 F.Supp. 1349, 1351 (E.D.Cal.1981); 7 Moore & Lucas, Moore's Federal Practice, § 60.20 (1982).³

II.

Power Anchor argues that the Court's interpretation of Local Rule 19(c) as applied to a motion for summary judgment conflicts with Fed.R.Civ.P. 56(c) and 56(e). The Court recently held that Rule 56 does indeed require the Court to examine the merits of a motion for summary judgment even when a non-moving party fails to object as required by Local Rule 19(c). McDermott v. Lehman, 594 F.Supp. 1315, Civil No. 82-0295-P (D.Me. Sept. 21, 1984). A party who fails to object to a motion for summary judgment within ten days, as required by Local Rule 19(c), is deemed to have consented to the moving party's statement of facts to the extent it is supported by appropriate record citations. Id., 594 F.Supp. at 1321.

In this case, the Motion for Summary Judgment was decided before the decision in McDermott, and the procedure set forth therein was not followed. In light of the McDermott decision, this Court shall exercise its plenary power to give relief from its interlocutory Order Granting Summary Judgment.

III.

Because Power Anchor failed to object to the Motion for Summary Judgment within ten days, as required by Local Rule 19(c), Power Anchor has waived its right to controvert Roberge's supported factual contentions, and the motion will be decided on the basis of the movant's submissions alone. McDermott, 594 F.Supp. at 1321.

The Plaintiffs in this case, Roger N. Gagne and Irene M. Gagne, brought this products liability action against Power Anchor Corporation, a distributor of powder-actuated fastening devices. Plaintiff Roger N. Gagne was injured by a projectile fired from a tool which was operated by one of his co-employees. The tool was manufactured by Power Anchor Corporation. Plaintiff's employer was Roberge Construction, the Third-Party Defendant and the moving party on this Motion for Summary Judgment. Power Anchor filed a three-count, third-party complaint against Roberge Construction, seeking full or, alternatively, limited contribution or indemnification from Roberge should Power Anchor be found liable. Power Anchor claims that the primary cause of Plaintiff Roger N. Gagne's injuries was the negligence of Roberge in failing to adequately instruct and train its employees in the proper use of the tool, failure to warn its employees of possible dangers associated with improper use, and allowing unqualified persons to operate the tool.

Roberge has paid substantial workers' compensation benefits to Mr. Gagne. Roberge argues in its Motion for Summary Judgment that it is immune from suit by Power Anchor Corporation by virtue of the provisions of the Maine Workers' Compensation Act. Roberge contends that the state Workers' Compensation Act is an absolute bar even to limited contribution in the amount of the Roberge workers' compensation lien. For purposes of deciding this motion, the Court must assume that Plaintiff's injury was caused, at least in part, by the fault of his employer, Roberge Construction.

Power Anchor's third-party complaint contains three counts which may be summarized briefly: (1) indemnification to the extent of Roberge's fault; (2) contribution to the extent of Roberge's fault; and (3) contribution limited to the amount of Roberge's workers' compensation lien. The first two counts may be quickly disposed of under current Maine law. However, the third count presents difficulties which the Court is not prepared to resolve at this point in this litigation.

The immunity provision of the Maine Workers' Compensation Act provides in pertinent part that employers "shall be exempt from civil actions because of such injuries ... at common law ...." 39 M.R.S.A. § 4 (Supp.1983-84).⁴ That this provision bars a third-party action for contribution or indemnification against the employer was made clear in the case of Roberts v. American Chain & Cable Co., 259 A.2d 43 (1969), and need not be discussed at length here. In Roberts, the Law Court squarely held that third-party actions for contribution or indemnity are barred under the workers' compensation statutes.

The rationale underlying Roberts was reaffirmed in the recent case of McKellar v. Clark Equipment Co., 472 A.2d 411 (Me. 1984). In McKellar, the Law Court held that the wife of an employee was barred from suing the employer for loss of consortium as a result of injuries sustained by the employee which were compensable under the Workers' Compensation Act. Although the Court noted that the facts in Roberts were "readily distinguishable" from those in McKellar, it observed that "the underlying rationale is not confined to that single case and is not easily rejected." McKellar, 472 A.2d at 414. The Law Court in McKellar quoted Roberts as follows:

Generally ... this Court has looked upon this legislation as a transfer of the burdens resulting from industrial accidents, regardless of who may be at fault, from the individual to the industry and on ultimate distribution of such burdens upon society as a whole, by compelling the industry, in which the accident occurs, through the employer, to pay compensation benefits based on the average weekly wages of the injured employee in substitution for the loss of wages occasioned by the accident.... Our court, on the other hand, has maintained that employers have rights and they also are entitled to rely on the certainty of the compensation to be paid and the amount of the services to be rendered. Perversion of the law, either to benefit the employee or protect the employer, has the tendency only to bring the law into contempt.... The intent of the statute was not to burden the industries of the state beyond the scope of the Act as defined by the lawmakers.

McKellar, 472 A.2d at 414 (quoting Roberts, 259 A.2d at 48-49).

The Law Court's decision in Rober...