39 F.R.D. 588 | D.S.C. | 1966
The above case is before me upon (1) motion of the defendant “for summary judgment in this case upon the ground that the plaintiff herein executed and delivered a release of one Lewis Wilson for the injuries and damages set forth in the complaint, and that said release was, and is, a bar to the maintenance of this action •^gainst the defendant”, and upon (2) motion of the plaintiff “for a dismissal without prejudice”.
I shall first consider defendant’s motion for summary judgment.
In support of its motion for summary judgment, the defendant has submitted affidavits of attorney for the defendant, the adjuster who obtained a release, releasing Lewis Wilson “and all other persons, firms, and corporations, both known and unknown, of and from any and all claims, demands, damages, actions, causes of action, or suits at law or in equity, of whatsoever kind or nature, for or because or any matter or thing done, omitted or suffered to be done by anyone prior to and including the date hereof on account of all injuries both to person or property resulting, or to result, from an accident which occurred on or about the 12th day of May, 1962, at Kingstree, S. C.”; the doctor at the hospital in Kingstree, South Carolina, who treated and attended Bessie Burgess, and the Superintendent of the hospital in Kingstree, South Carolina, all to the effect that Bessie Burgess signed a release on the date she was released from the hospital in Kingstree, which date the affidavits show to be May 18, 1962. The averments in the affidavit of the adjuster are made “to the best of my memory”.
The plaintiff has filed the affidavit of Bessie Burgess in which she says that “While I was in the hospital in Kingstree, and on the 18th day of May, 1962, which is six days after the accident, I am supposed to have signed a release which was made out to the driver of the automobile in which I was a passenger. I have no knowledge of ever having signed such a release. With the multiple fractures of the right shoulder, ribs, and injury to my right arm, it seems incredible that I could even hold a pen in my hand. In addition I was medicated continuously and completely irrational by virtue of my brain injury. In addition to the foregoing, I have no recollection whatsoever of having received a single dime from any company or defendant. To claim that I knowingly signed a release is not only false, but rediculous.”
Summary Judgment procedure as prescribed in Rule 56, provides in paragraph (e) “Supporting and opposing affidavits shall be made on personal knowledge, * * *■ »
The moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitled him to judgment as a matter of law. Moore’s Federal Practice, Vol. 6, p. 2335, and cases therein cited. To satisfy his burden the movant must make a showing that is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. Stevens v. Howard D. Johnson Co., C.A.4, 1950, 181 F.2d 390; Sartor v. Arkansas Natural Gas Corp., (1944) 321 U.S. 620, 627, 64 S.Ct. 724, 88 L.Ed. 967. “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, C.A.2, 1945, 149 F.2d 130, 135. In ruling on the motion for summary judgment all inferences of fact from the proofs proffered must be drawn against the movant and in favor of the party opposing the motion. United States v. Diebold, Inc. (1962) 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176. To satisfy the moving party’s burden the evidentiary material before the court, if taken as true, must establish the absence of any genuine issue of material fact, and it must appear thát there is no real question as to the credibility of the evidentiary material, so that it is to be taken as true. Moore’s Federal Practice, Vol. 6, p. 2339, and cases cited.
As was said by the United States Court of Appeals of the Fourth Circuit in the case of Kirkpatrick v. Consolidated
I cannot say in this case that it is quite clear what the truth is, and that there is no genuine factual dispute as to the release set up by defendant as a bar to plaintiff’s action, and that no genuine issue remains for trial, and I must, therefore, deny defendant’s motion for summary judgment, and
It is so ordered.
I shall next consider plaintiff’s motion for voluntary dismissal, without prejudice.
The original complaint in this action dated May 29, 1963, was filed in the Supreme Court of the State of New York, County of Queens. The case was thereafter removed by the defendant to the United States District Court for the Eastern District of New York, and motion to remand denied July 26, 1963. In March, 1964, defendant moved in the United States District Court for the Eastern District of New York, for an order transferring this action to the United States District Court for the Eastern District of South Carolina, Florence Division, which motion was granted by order dated April 8,1964.
Plaintiff’s attorney states in his affidavit attached to the motion to dismiss that he “In order to preserve plaintiff’s claim, * * * recently (June 30, 1965) and properly instituted a cause of action before the Court of the State of New York, * *
In exercising its discretion the court follows the traditional principle that dismissal should be allowed unless the defendant will suffer some plain legal prejudice other than the mere prospect of a second lawsuit. Cone v. West Virginia Pulp & Paper Co., 1947, 330 U.S. 212, 217, 67 S.Ct. 752, 755, 91 L.Ed. 849. It is no bar to dismissal that plaintiff may obtain some tactical advantage thereby. New York, C. & St. L. R. Co. v. Vardaman, C.A.8, 1950, 181 F.2d 769.
In exercising its discretion as to motions for dismissal, the court will consider the expense and inconvenience to the defendant, other prejudicial consequences, and whether reasonable terms and conditions can make the defendant reasonably whole. Colonial Oil Co. v. American Oil Co., D.C.S.C., 1943, 3 F.R.D. 29; Southern Md. Agr. Ass’n of Prince George’s County v. United States, D.C.Md.1954, 16 F.R.D. 100; Grivas v. Parmelee Transp. Co., C.A.7, 1953, 207 F.2d 334.
On a motion to dismiss the judge should weigh the equities and make that decision which seems fairest under all the circumstances. Lawson v. Moore, D.C.W.D.Va., 29 F.Supp. 175.
After weighing the equities it seems fairest, under all the circumstances, to grant the motion to dismiss, without prejudice, but the plaintiff must pay the costs in this action, and
It is so ordered.