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October 19, 1955

Mrs. Thelma Morse WALLE, widow of Haakon Walle, Deceased, Libellant,
John DALLETT, Respondent

The opinion of the court was delivered by: HERLANDS

Upon this motion excepting to a second amended libel in admiralty, respondent urges the following grounds for final dismissal: laches; failure to state a genuine triable issue; and failure to state a claim upon which relief can be granted. The Court will treat the cumulative motion as in the nature of a motion for summary judgment under Fed.Rules Civ.Proc. rule 56, 28 U.S.C.A.

The libellant, a widow, has appeared in personam and argued in opposition to the motion.

 On January 14, 1948, libellant's husband was killed by carbon monoxide fumes in a vessel on which he was working as a watchman. Whether, at the time of his death, he was an employee of the ship owner or an independent contractor is one of the disputed questions of fact in this case.

 Libellant claims that she filed a claim with the Federal Compensation Bureau on July 12, 1948.

 About seven years later, on March 7, 1955, libellant filed a libel against the respondent, an individual, as the ship owner. The libel was predicated upon the right to compensation under the Longshoremen's and Harbor Workers' Compensation Act. *fn1"

 Who actually owned or operated the ship at the time of her husband's death, and who had employed him became -- to the libellant -- an impenetrable mystery. Libellant was confronted by five corporations owned or controlled by respondent. She became distrustful of her former attorney and suspicious of the respondent and his relations with certain official personnel. The factual and psychogenic basis for these suspicions lie outside the compass of this decision.

 Her libel and the annexed interrogatories were sharply attacked. The matter came on before Judge Weinfeld, 136 F.Supp. 102, who ruled that the libel was 'verbose,' 'scandalous and vituperative,' and that it should be stricken for violation of Admiralty Rule 35, 28 U.S.C.A., and F.R.C.P., Rule 12(f). Nevertheless, Judge Weinfeld considered libellant's papers as attempting to assert a claim for damages for the death of libellant's husband, based upon respondent's failure to secure payment of compensation or respondent's avoidance of payment of compensation. *fn2" Consequently, Judge Weinfeld did not dismiss the libel with prejudice. Instead, he granted libellant leave to replead and to assert facts to overcome the plea of laches. With reference to laches, Judge Weinfeld said:

 'I have considered the respondent's plea for a complete dismissal upon the further ground that any claim is barred since the libel was filed more than seven years after the decedent's death and there is no affirmative pleading of facts to overcome the presumption of prejudice. However, there is a suggestion in libellant's papers that she may be in a position to assert facts to overcome the plea of laches.'

 Thereafter, on May 27, 1955, libellant moved before Judge Edelstein for a 'bill of particulars.' Judge Edelstein's memorandum recites that the motion was 'withdrawn.' Respondent's memorandum of law (p. 2) on the present motion suggests that the motion for a bill of particulars had been 'ordered withdrawn' by Judge Edelstein because 'no legal grounds existed on which the relief prayed for could be granted.'

 On June 8, 1955, libellant filed her first amended libel. On July 29, 1955, the amended libel was dismissed by Judge Palmieri, with leave to file a second amended libel 'pleading anew her claim arising out of the alleged failure to carry compensation under the provisions of 33 U.S.C., §§ 905 and 938(a) and (b), * * *.' Judge Palmieri further ordered libellant to assert in her second amended libel, 'such facts upon which she relies to overcome the plea of laches, * * *.' Judge Palmieri overruled respondent's exceptions that were based upon the grounds of 'impertinence and scandal.'

 The present motion raises two question: (1) Is there a triable issue as to whether an employer-employee relationship existed between libellant's husband and the respondent or is it conclusively shown that the libellant's husband was an independent contractor and hence outside the coverage of the controlling statute? *fn3" (2) Does the evidence in support of respondent's plea of laches warrant a final dismissal of the libel upon this motion and without a trial?

 The record reveals a genuine factual controversy whether libellant's husband was an employee or an independent contractor. Libellant contends that she will be able to establish the employer-employee relationship by evidence showing the continuity of her husband's work for respondent, salary payments by respondent, and her husband's employment and wage records. These assertions are denied by respondent. The resulting issue can be determined only at a trial.

 The existence of a bona fide factual dispute as to the status of libellant's husband is fatal to respondent's argument that the libel is insufficient as a matter of law. Respondent's argument is premised upon the erroneous proposition that the facts set forth in the libel and libellant's affidavit demonstrate the absence of an employer-employee relationship that is necessary to bring libellant under the applicable statute. We cannot agree with respondent that the issue of status (employee or independent contractor) must be resolved conclusively against libellant. Sufficient facts are presented in her affidavit to warrant a plenary hearing on that issue.

 Similarly, the issues raised by the plea of laches should not be determined solely on the basis of affidavits, but should be fully litigated. It may be observed that, on the occasions when this case came before Judges Weinfeld and Palmieri, respondent's plea of laches was presented but not finally adjudicated. Libellant was granted leave to amend her libel to set forth facts militating against a finding of laches. The Court is of the opinion that libellant's allegations now raise an issue which, if resolved in her favor, would excuse her delay in prosecuting this libel. That libellant is entitled to her day ...

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