Jewell v. SCMI Corp.

Opinion

Jewell v. SCMI Corp. CV-94-359-JD 07/11/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Donald E. Jewell

v. Civil No. 94-359-JD

SCMI Corp.. et al.

O R D E R

The plaintiff, Donald Jewell, brings this products liability

action to recover damages for personal injury related to the use

of a multi-blade saw designed, manufactured, and marketed by the

defendant Autec Inc. d/b/a SCMI and the defendant SCM S.p.A.

Before the court is the defendants' motion for partial summary

judgment (document no. 13) on counts III, IV, and VI of the

complaint.

Discussion

This lawsuit arises out of an on-the-job injury sustained by

the plaintiff on July 28, 1991, while he was operating a saw

manufactured by the defendants. The parties do not dispute that

the saw was purchased by the plaintiff's employer on October 4,

1985. The plaintiff filed this action nearly nine years later on

July 11, 1994.

In their motion, the defendants assert that the plaintiff's

claims for breach of implied warranty of merchantability and

fitness (count III) and breach of express warranty (count IV) are barred by N.H. Rev. Stat. Ann. ("RSA") § 382-A:2-725, which

requires that all breach of warranty actions be commenced within

four years of delivery of the goods at issue. The defendants

further assert that the plaintiff's claim alleging a violation of

the consumer protection act (count VI) is barred by RSA § 358-A:3

IV-a, which requires that actions under the act be commenced

within two years of the transaction at issue.

The plaintiff responds by affidavit that facts essential to

his warranty and consumer protection causes of action may have

been fraudulently concealed by the defendants and that such

conduct equitably tolls the applicable statutes of limitations

under New Hampshire law. The plaintiff argues that he will

pursue information in support of this theory through formal

discovery, which is scheduled to close on September 1, 1995, and,

depending on the outcome of discovery, may move to amend his

complaint to allege fraudulent concealment. Specifically, the

plaintiff will attempt to determine through discovery whether

"either Defendant had prior knowledge of the propensity for the

subject product to cause injuries to users of the product; and

further whether either defendant fraudulently concealed any such

information from the Plaintiff." Plaintiff's Objection to

Defendants' Motion for Summary Judgment at 5 3.

2 Rule 56 provides:

(f) When Affidavits are Unavailable. Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions be taken or discovery be had or may make such other order as is just. Fed. R. Civ. P. 56. Moreover,

[t]he mere averment of such exclusive knowledge or control of the facts by the moving party is not adeguate: the opposing party must show to the best of his ability what facts are within the movant's exclusive knowledge or control, what steps have been taken to obtain the desired information pursuant to the discovery procedures under the Rules, and that he wishes to take advantage of these discovery procedures.

The court may then order a continuance to permit discovery, or deny the motion for summary judgment without prejudice to its renewal after adeguate time has elapsed to obtain the desired information.

6 Jeremy C. Moore et al., Moore's Federal Practice 5 56.24 (2d

ed. 1995) .

The defendants correctly have observed that the plaintiff's

objection and accompanying memorandum and affidavit are extremely

vague on the issues of which facts he expects to discover in

support of the fraudulent concealment theory and on why such

discovery has not already been conducted. See Mattoon v. City of

Pittsfield, 980 F.2d 1, 7 (1st Cir. 1992) (reciting standard for

relief from summary judgment under Rule 56(f)). Nonetheless, the

3 plaintiff, at this point unable to adduce evidence to oppose the

motion for summary judgment, has articulated a sufficient need

for discovery to invoke the "procedural escape hatch" of Rule

56(f) and the motion is denied without prejudice. See id.

(quotation omitted). Once discovery has closed the defendants

may renew their motion for summary judgment based on the failure

to comply with the statutes of limitations or any other theory

properly asserted under Rule 56.

Conclusion

The defendants' motion for partial summary judgment

(document no. 13) is denied without prejudice. The parties shall

complete discovery by the September 1, 1995, deadline. The

plaintiff will not be granted additional time to conduct

discovery in support of the argument that the statutes of

limitations should be tolled because of fraudulent concealment,

and any motion to amend the complaint on this ground shall be

filed no later than September 15, 1995. The court will entertain

thereafter motions for summary judgment filed by either party.

SO ORDERED.

Joseph A. DiClerico, Jr. Chief Judge July 11, 1995 cc: Michael R. Callahan, Esquire James D Meadows, Esquire Howard B. Myers, Esquire