Meyer v. Stern

Decision Date14 December 1984
Docket NumberCiv. A. No. 83-K-319.
Citation599 F. Supp. 295
PartiesJustin S. MEYER, Plaintiff, v. Sol Allen STERN, Theodore A. Gould, and Titan Flyers, Inc., a Colorado Corporation, Ronald Webb, Answer All Secretarial Service, Inc., a Colorado corporation, Daniel Romcevich, and Martin Marietta Corporation, a Maryland corporation, Defendants.
CourtU.S. District Court — District of Colorado

Neil Hillyard, Englewood, Colo., for plaintiff.

Mary A. Wells, Janice M. Finch, Denver, Colo., for defendants.

MEMORANDUM OPINION AND ORDER

KANE, District Judge.

Plaintiff seeks recovery for injuries sustained in an airplane crash near the Arapahoe County Airport, in Colorado, on April 18, 1982. By a document dated July 26, 1984 plaintiff released all claims against other defendants including Titan Flyer's Inc. The release explicitly reserved claims which plaintiff may have against defendant Martin Marietta Corporation. Pursuant to the release and a stipulation for dismissal with prejudice, the case against all defendants except Martin Marietta was dismissed by Order dated September 11, 1984.

Plaintiff's claims against Martin Marietta are based upon the allegation that Titan Flyers is an alter ego of Martin Marietta and that Martin Marietta is vicariously liable for the acts of Titan Flyers. By a Memorandum Opinion and Order dated August 17, 1984,1 I denied Martin Marietta's motion for summary judgment as to the issue of vicarious liability. I held that the facts did not clearly demonstrate that Martin Marietta was not vicariously liable for Titan Flyer's actions. Martin Marietta filed a motion for reconsideration repeating the claims alleged in the initial motion for summary judgment. The motion for reconsideration raised no new issues, nor did it show any mistake, omission or misrepresentation compelling my modification of the August 17, 1984 order. Accordingly, the motion for reconsideration was denied. Martin Marietta now moves for certification of my denial of the motion for reconsideration as a final order pursuant to Rule 54(b) or in the alternative certification of that order for consideration on interlocutory appeal pursuant to 28 U.S.C. § 1292(b).

Martin has also filed a second motion for summary judgment arguing that the release of Titan Flyer's also releases Martin Marietta.

APPEAL OF DENIAL OF MOTION FOR RECONSIDERATION

Rule 54(b) allows entry of final judgment as to isolated claims in cases involving multiple claims or multiple parties. Such entry requires "an express determination that there is no just reason for delay and ... express direction for the entry of judgment." Fed.R.Civ.P. 54(b). Determination of whether an issue is finally resolved and may be certified for entry of judgment under Rule 54(b) is governed by the same standards of finality applied in determining jurisdiction on appeal under 28 U.S.C. § 1291. To be final, the judgment must be dispositive of the claims against Martin Marietta. See, generally, Wheeler Machinery Co. v. Mountain States Mineral Enterprises, Inc., 696 F.2d 787, 789 (10th Cir.1983). It is axiomatic that denial of a motion for summary judgment does not dispose of the case and that issues remain for resolution. As Justice Douglas stated: "the denial of a motion for summary judgment because of unresolved issues of fact does not settle or even tentatively decide anything about the merits of the claim. It is strictly a pretrial order that decides only one thing—that the case should go to trial." Switzerland Cheese Ass'n v. Horne's Market, Inc., 385 U.S. 23, 25, 87 S.Ct. 193, 195, 17 L.Ed.2d 23 (1966). The motion for entry of final judgment under Rule 54(b) is, therefore, denied.

While certification for interlocutory appeal pursuant to 28 U.S.C. § 1292(b) does not require a final judgment, such certification is inappropriate here. Certification is appropriate only if I find that my denial of the motion for reconsideration "involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate determination of the litigation...." 28 U.S.C. § 1292(b). I denied summary judgment because the facts presented did not clearly show that Martin Marietta was not the alter ego of Titan Flyer's. Martin Marietta's motion for reconsideration did not question the law of vicarious liability applied in the earlier Memorandum Opinion and Order, inasmuch as there is little, if any, dispute as to the applicable law. A denial of a motion for summary judgment where the applicable law is clear, but there remains a genuine issue as to material fact, should not be certified for interlocutory appeal under § 1292(b). See Chappell & Co. v. Frankel, 367 F.2d 197, 200 n. 4 (2d Cir.1966); Rypkema v. Bowers, 66 F.R.D. 564, 569-79 (N.D. W.Va.1974).

SECOND MOTION FOR SUMMARY JUDGMENT

Martin bases its second motion for summary judgment on the proposition that a release of claims against Titan Flyer's also releases Martin Marietta from any derivatively based liability. Certainly, if the party who is primarily liable is absolved by a judgment on the merits, an action based upon secondary or vicarious liability must also fail. See Flournoy v. Sayles, 37 Colo. App. 67, 544 P.2d 649, 652 (1975).

The effect of a release and dismissal with prejudice is not as clear. Both parties agree that Colorado law should be applied in determining liability. Although the Colorado courts have not dealt with the precise issue here, their rulings in similar cases provide ample guidance in my determination of the appropriate legal standard. See Hiatt v. Schreiber, 599 F.Supp. 1142 at p. 1145 n. 1 (D.Colo.1984) and cases cited therein. In Dworak v....

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8 cases
  • Mesler v. Bragg Management Co.
    • United States
    • California Supreme Court
    • August 1, 1985
    ...recovery from an alter ego when the question of the relationship between defendants remains unsettled. (See, e.g., Meyer v. Stern (D.Col.1984) 599 F.Supp. 295, 298.) A plaintiff thus may settle and obtain speedy recovery without foreclosing his options as to other potential sources of Plain......
  • Ochoa v. Vered
    • United States
    • Colorado Court of Appeals
    • April 16, 2009
    ...between a release and a covenant for purposes of preserving a respondeat superior claim against the employer. See Meyer v. Stern, 599 F.Supp. 295, 297 (D.Colo.1984) (rejecting distinction between a covenant not to sue and a release with express provisions reserving claims for imposing vicar......
  • Ochoa v. Vered
    • United States
    • Colorado Court of Appeals
    • April 17, 2008
    ...between a release and a covenant for purposes of preserving a respondeat superior claim against the employer. See Meyer v. Stern, 599 F.Supp. 295, 297 (D.Colo.1984) (rejecting distinction between a covenant not to sue and a release with express provisions reserving claims for imposing vicar......
  • Young v. Sheetz, Inc.
    • United States
    • U.S. District Court — Western District of Virginia
    • March 2, 1998
    ...when the order does not involve controlling questions of law about which there could be substantial disagreement. Meyer v. Stern, 599 F.Supp. 295 (D.Col. 1984). The court finds that the defendants' motion presents no controlling question of law about which there could be substantial disagre......
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