Ferran v. United States

17 F.R.D. 210, 1955 U.S. Dist. LEXIS 4069

Opinion

RUIZ-NAZARIO, District Judge.

The affidavit of the United States Attorney in support of the motion herein fails to comply with the requirements of Rule 56(c) of the Federal Rules of Civil Procedure, 28 U.S.C.A., and, therefore, the Court cannot give any weight to the contents thereof in considering defendant’s request for a summary judgment.

As the allegations of the amended complaint are so meagre in the exposition of many informative facts which, if properly alleged, would have permitted the court to determine whether or not this action falls within the exception of the Federal Tort Claims Act, 28 U.S.C.A. § 2671 et seq., invoked by the defendant in its motion for summary judgment, the Court is unable to hold, in the absence of further facts presenting a clearer picture of the situation that defendant is entitled to a summary judgment as a matter of law.

“A litigant has a right to a trial where there is the slightest doubt as to the facts.” Doehler Metal Furniture Co. v. United States, 2 Cir., 149 F.2d 130, 135, 136; Arenas v. United States, 322 U.S. 419, 434, 64 S.Ct. 1090 88 L.Ed. 1363; Arnstein v. Porter, 2 Cir., 154 F.2d 464, 470, 471; Sarnoff v. Ciaglia, 3 Cir., 165 F.2d 167, 168. Cited with approval in Peckham v. Ronrico Corporation, 1 Cir., 171 F.2d 653, 657.

That being the rule in this jurisdiction, defendant’s motion for summary judgment must be, as it is hereby, denied.

It is so ordered.