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SELENIA GONZALEZ v. PROGRESSIVE TOOL & DIE CO.

August 9, 1978

Luz Selenia GONZALEZ, Plaintiff,
v.
PROGRESSIVE TOOL & DIE CO., Johnson Liquidating Co., Inc., Vimm Corporation, Arvid S. Johnson, Jr. and Vimm Liquidating Corporation, Defendants



The opinion of the court was delivered by: NICKERSON

MEMORANDUM AND ORDER

Plaintiff, a New York resident, brought this diversity action on April 27, 1977, alleging injury in the course of her employment on September 19, 1974, while operating a vertical injection molding machine known as the "Mercury VMM I" owned by her employer and manufactured by defendant Progressive Tool & Die Co. ("Progressive"), a corporation formerly existing under the laws of Massachusetts.

The complaint's first claim alleges that Progressive negligently designed, manufactured, assembled and tested the machine and negligently failed to provide warnings of its inherent dangers. The other defendants are alleged to be "liable for (Progressive's) debts" as "transferees" of its assets.

 The second claim alleges that Progressive warranted to any potential user of the machine that it was free from defects and safe for use, whereas it was defective and unsafe.

 The third claim alleges that defendants are liable under the so-called "Doctrine of Strict Liability".

 The fourth claim alleges that when plaintiff's employer purchased the machine all the defendants and their predecessors warranted that it was designed, manufactured, assembled, installed, tested and inspected in a proper and safe manner, that it was free of defects and safe, that it would not break under normal use, and that it was equipped with appropriate safety devices, whereas it was not safe and free of defects.

 Defendant Arvid S. Johnson, Jr., ("Johnson") answered, denying the critical allegations and setting forth affirmative defenses of contributory negligence, assumption of risk, and laches.

 The attorneys for Johnson then moved on behalf of defendants Johnson, Progressive Johnson Liquidating Co., Inc. ("Johnson Liquidating"), Vimm Corporation ("Vimm I"), and Vimm Liquidating Corp. ("Vimm Liquidating"), under Rule 12(b) (6) of the Federal Rules of Civil Procedure ("FRCP") to dismiss the complaint for failure to state a claim. Matters outside the pleadings were presented, and, in accordance with FRCP 12(c), the motion is considered as one for summary judgment and is disposed of pursuant to FRCP 56.

 The following facts have been established beyond dispute, except where otherwise noted.

 Progressive and Johnson Liquidating

 Progressive was organized under Massachusetts law on December 24, 1928. Its name was changed to Johnson Liquidating on May 1, 1967, and most of its assets were sold to Amtel, Inc., a Rhode Island corporation. However, fourteen partially assembled vertical injection molding machines known as "Mercury VMM 2" machines were sold to Vimm I. Johnson Liquidating was dissolved on February 3, 1971 by order of the Supreme Judicial Court of Massachusetts, and its assets were distributed to its shareholders, including Johnson.

 Massachusetts law governs the question of the capacity of a Massachusetts corporation to be sued in this court. FRCP 17(b). Massachusetts General Laws Ch. 156B § 102 provides that a dissolved corporation will continue to exist for a period of three years following dissolution

 
"for the purpose of prosecuting and defending suits by or against it and of enabling it gradually to settle and close its affairs, to dispose of and convey its property and to make distribution to its stockholders of any assets remaining after the payment of its debts and obligations(.)"

 Unless suit is brought against such a dissolved corporation within three years of dissolution the Massachusetts statute deprives the corporation of capacity to be sued. Cf. Boston Towboat Co. v. Medford Nat. Bank, 228 Mass. 484, 117 N.E. 928 (Suffolk 1917). This suit was not filed in time, ...


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