Ricker v. American Zinser Corp.
Ricker v. American Zinser Corp.
Opinion of the Court
MEMORANDA OPINION AND ORDERS
This is a civil action for damages for personal injuries and loss of consortium suffered from the use of a product. 28 U.S.C. §§ 1332(a)(1), (c). The defendant American Zinser Corporation (American. Zinser) moved the Court for a summary judgment, submitting in support of such motion affidavits. Rules 56(b), (e), Federal Rules of Civil Procedure. The plaintiffs submitted in response thereto, the affidavit of their attorney.
The affidavits submitted by American Zinser show that the machine involved in this action was manufactured by the defendant Zinser Textilmaschinen GmbH; that it was sold directly by such defendant to the female plaintiff’s employer; that American Zinser’s records disclose no involvement by it in any transaction involv
Faced with these materials, the plaintiffs were required to make a response which “ * * * set forth specific [emphasis provided] facts showing the existence of a genuine issue for trial. * * * ” Thompson v. Chrysler Corporation, C.A. 6th (1978), 569 F.2d 989, 992. The ultimate facts and conclusions contained in the affidavit of counsel for the plaintiff are insufficient to do so. See Bsharah v. Eltra Corporation, C.A. 6th (1968), 394 F.2d 502, 503[1], “* * * [A] [p]laintiff may not raise an issue of fact by merely referring to the proposed testimony of possible witnesses. * * * An affidavit stating what the attorney believes or intends to prove at trial is insufficient to comply with the burden placed on a party opposing a motion for summary judgment under Rule 56. * * * ” King v. National Industries, Inc., C.A. 6th (1975), 512 F.2d 29, 33-34[10], citing Automatic Radio Mfg. Co. v. Hazeltine Research, Inc. (1950), 339 U.S. 827, 831, 70 S.Ct. 894, 94 L.Ed. 1312.
The purpose of a motion for summary judgment is to test whether facially adequate allegations have sufficient basis in fact to warrant plenary presentation of evidence. Blackledge v. Allison (1977), 431 U.S. 63, 80, 97 S.Ct. 1621, 52 L.Ed.2d 136, 151[8]. The plaintiffs alleged herein that the defendants designed, manufactured, sold, and installed the machine which proximately caused their respective injuries and damages. 11(a), pretrial order herein of June 8, 1978.
There thus being no genuine issue of material fact extant between the plaintiffs and the defendant American Zinser Corporation, and the latter being entitled to a judgment as a matter of law, its motion for summary judgment hereby is GRANTED. Rule 56(c), Federal Rules of Civil Procedure. Summary judgment will enter that the plaintiffs take nothing herein from the defendant American Zinser Corporation. Rule 58(1), Federal Rules of Civil Procedure.
Upon motion of the plaintiffs, Rules 33(a), 37(a)(2), Federal Rules of Civil Procedure, the defendant Zinser Textilmaschinen GmbH hereby is ORDERED to answer fully and unevasively within 5 days herefrom each of the written interrogatories previously propounded to it by the plaintiffs.
ON MOTION FOR RELIEF FROM JUDGMENT
Summary judgment was entered herein in favor of the defendant American Zinser Corporation (American Zinser) on September 11, 1978.
OVERRULED.
Their “new evidence”, not being sufficient to change the result of the Court’s granting of American Zinser’s motion for a summary judgment, the plaintiffs are not entitled to relief therefrom under Rule 60(b), supra. See: Trans Mississippi Corp. v. United States, C.A. 5th (1974), 494 F.2d 770, 773[3]; Giordano v. McCartney, C.A.3d (1967), 385 F.2d 154, 155[2]; U. S. Fidelity & Guaranty Co. v. Lawrenson, C.A. 4th (1964), 334 F.2d 464, 466[3], certiorari denied (1964), 379 U.S. 869, 85 S.Ct. 141, 13 L.Ed.2d 71. Neither is this an extraordinary situation, contemplated by Rule 60(b)(6), supra, so as to justify relief under its provisions. Rader v. Clinburn, C.A. 6th (1973), 476 F.2d 182,184[2-4]; see generally Ackermann v. United States (1950), 340 U.S. 193, 71 S.Ct. 209, 95 L.Ed. 207.
The pretrial order, by its terms, provides that it supplants the pleadings herein, and thus controls the subsequent course of this action. Rule 16, Federal Rules of Civil Procedure; United States v. Hougham (1960), 364 U.S. 310, 315, 81 S.Ct. 13, 17, 5 L.Ed.2d 8, 14 (headnote 4), rehearing denied (1960), 364 U.S. 938, 81 S.Ct. 376, 5 L.Ed.2d 372.
. This motion was filed herein on June 29, 1978. It was not ruled upon by the Court until the plaintiffs, on two separate occasions, had been allowed additional time within which to make any desired response thereto.
. The plaintiffs appear to be laboring under the impression that American Zinser could be liable herein for the conduct of its parent corporation and codefendant herein Zinser Textilmaschinen, GmbH merely because of the existence of such subsidiary-parent relationship. That is an incorrect view. 19 Am.Jur. (2d) 217-218, Corporations § 717; 13A Fletcher, Cyclopedia of Corporations § 6222.
Reference
- Full Case Name
- Nora RICKER et vir. v. AMERICAN ZINSER CORPORATION
- Status
- Published