McVan v. Bolco Athletic Co., Civ. A. No. 84-0435.

• Decision Date: 20 November 1984
• Docket Number: Civ. A. No. 84-0435.
• Parties: Brian P. McVAN and Michelle B. McVan v. BOLCO ATHLETIC COMPANY v. The UNITED STATES of America DEPARTMENT OF the ARMY.
• Court: U.S. District Court — Eastern District of Pennsylvania

600 F. Supp. 375

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

Civ. A. No. 84-0435.

United States District Court, E.D. Pennsylvania.

November 20, 1984.

COPYRIGHT MATERIAL OMITTED

Ronald L. Wolf, Litvin, Blumberg, Matusow & Young, Philadelphia, Pa., for plaintiffs.

Arthur L. Shanker, Glenside, Pa., for defendant/third-party plaintiff Bolco Athletic Co.

Edward T. Ellis, Asst. U.S. Atty., Philadelphia, Pa., for third-party defendant U.S.

MEMORANDUM

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 plaintiff¹ 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 ¶ 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 § 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, ___ U.S. ___, 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 56(c). I will accordingly deny Bolco's Rule 56(f) motion, and proceed to consider the Government's motion for summary judgment pursuant to Rule 56(c).

II. The Government's Motion for Summary Judgment

Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), establishes that a serviceman who suffers an injury incident to his military service cannot sue the United States for damages arising out of that injury. In Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977), the Supreme Court held that the Feres doctrine bars not only direct actions by service personnel against the Government, but also third-party actions seeking indemnity or contribution for injuries to service personnel incident to their military service. The Government argues that these cases render it immune from suit in this case, because plaintiff's alleged injuries were suffered while plaintiff was on active duty and present on a military base.

Along with two briefs in support of its motion, the Government has submitted two affidavits. In the first affidavit, plaintiff Brian McVan states (1) that at the time of the softball accident he was a Captain in the United States Army, Judge Advocate General Corps; (2) that he "participated in an organized amateur office softball game at Headquarters Command Field at Fort Dix, New Jersey," in which he sustained the injuries which led to this suit; and (3) that "the majority of participants in the aforementioned softball game consisted of active duty servicemen stationed at Fort Dix." The second affidavit is of Robert K. Beske, whose title is stated as "Sports Director, Morale Support Activities Division, Directorate of Personnel and Community Activities, Fort Dix." Mr. Beske states that the slow pitch softball league at Fort Dix is designed "to provide military personnel an opportunity to participate in a seasonal sport," and that participating teams consisted of a mix of active-duty military personnel, retired military personnel, reservists, relatives, and "other individuals having command authorization."

No other affidavits or exhibits have been submitted by any of the parties. Consequently, I accept the statements of plaintiff and Mr. Beske as true for purposes of deciding the Government's motion. At the same time, I recognize that the submissions of the parties must be viewed in the light most favorable to Bolco. Accordingly, the following discussion assumes that plaintiff was neither on duty² nor in any way acting under orders at the time of his accident.

Feres itself holds that service personnel may not maintain suits against the Government "where the injuries rise out of or are in the course of activity incident to service." Feres v. United States, 340 U.S. 135, 146, 71 S.Ct. 153, 159, 95 L.Ed. 152 (1950). When the injury is not "incident to" the plaintiff's military service, the Feres doctrine does not apply and suit is not barred under the Federal Tort Claims Act. United States v. Brown, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139 (1954); Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200 (1949).

The line between these two categories is not bright. There is a good deal of...