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MCMAHON v. CONAGRA

July 28, 1992

JOSEPH E. McMAHON and MARY J. McMAHON, Plaintiffs,
v.
CONAGRA, INC. and KINSMAN LINES, INC., Defendants.



The opinion of the court was delivered by: WILLIAM M. SKRETNY

 INTRODUCTION

 Plaintiffs Joseph F. McMahon and Mary J. McMahon ("Plaintiffs") move for entry of final judgment of this Court's Order of May 27, 1992, pursuant to Fed.R.Civ.P. 54(b).

 Plaintiffs have filed a two count Complaint, alleging negligence and loss of consortium against Defendants ConAgra, Inc. ("ConAgra") and Kinsman Lines, Inc. ("Kinsman").

 This Court has jurisdiction based upon diversity of citizenship under 28 U.S.C. § 1332.

 As the parties are aware, ConAgra moved for summary judgment seeking dismissal of Plaintiffs' action against it in its entirety. The submissions of the parties which this Court considered In deciding ConAgra's motion are recited in this Court's May 27, 1992 Decision and Order. ("Decision and Order, p. 1").

 This Court granted ConAgra's motion for summary judgment, reasoning that although ConAgra owed a duty of due care to Plaintiff Joseph F. McMahon ("Plaintiff"), the undisputed facts of the case indicated that ConAgra did not breach its duty to Plaintiff. (Decision and Order, p. 5).

 Plaintiffs now move for Fed.R.Civ.P. 54(b) certification of this Court's summary judgment Order. Plaintiffs contend that appellate review of the propriety of granting summary judgment to ConAgra has no bearing on Kinsman's independent liability to be determined at trial. Plaintiffs further assert that immediate appeal is necessary in order to evaluate whether this Court correctly applied Hartnett v. Reiss Steamship Co., 421 F.2d 1011 (2d Cir. 1970), in concluding that ConAgra was entitled to summary judgment. Plaintiffs also contend that in the absence of an immediate appeal the equitable and economic interests of the parties would be endangered, and judicial economy would not be served since duplicative trials on the issue of damages might result.

 In opposing Plaintiffs' motion for certification, ConAgra responds that certification to avoid a potential retrial, or to determine the appropriateness of a district court's order, is improper as a matter of law. ConAgra also contends that Plaintiffs have failed to demonstrate that denial of certification would serve an unusual hardship or work an injustice to them. ConAgra further contends that the claims Plaintiffs asserted against it are not separable from those they asserted against Kinsman, and consequently new evidence at trial might cause this Court to modify its Decision and Order granting summary judgment to ConAgra. Finally, ConAgra argues against certification of this Court's summary judgment Order since settlement discussions between Plaintiffs and Kinsman are ongoing.

 In support of their motion for Fed.R.Civ.P. 54(b) certification, Plaintiffs submit a Memorandum of Law dated June 24, 1992. ("Plaintiffs Memo").

 In opposition to Plaintiffs' motion, ConAgra submits a Memorandum of Law dated July 10, 1992. ("ConAgra Memo").

 Kinsman makes no submissions, either in support or in opposition to, Plaintiffs' motion.

 For the reasons articulated below, Plaintiffs' motion for Fed.R.Civ.P. 54(b) certification is denied.

 FACTS

 The undisputed facts relied upon by this Court in its consideration of ConAgra's summary judgment motion are recited in this Court's Decision and Order of May 27, 1992. (Decision and Order, pp. 2-3).

 As the parties are aware, in its Decision and Order, this Court stated that "the sole legal question on this motion for summary judgment is whether ConAgra, as owner and operator of a grain elevator, owed a duty of care to plaintiff, a longshoreman engaged in unloading a ship that was docked at its grain elevator." (Decision and Order, p.4).

 In considering this question, this Court concluded that ConAgra was obligated to use due care in order to avoid injury to persons working on the docked ship. (Decision and Order, p.5). This Court reasoned that ConAgra's duty to Plaintiff derived from traditional principles of tort law, which could be pursued under a traditional common law action, as provided pursuant to 33 U.S.C. § 905(b) and 33 U.S.C. § 933. (Decision and Order, p.5). However, this Court concluded that the undisputed facts failed to demonstrate that ConAgra breached its duty, or that ConAgra exercised sufficient control over the operation to require it to eliminate slippery conditions or to shut down loading activities. (Decision and Order, pp. 6-7).

 This Court also rejected Plaintiffs' reliance on Hartnett v. Reiss Steamship Co., 421 F.2d 1011 (2d Cir. 1970), cert denied, 400 U.S. 852, 91 S. Ct. 49, 27 L. Ed. 2d 90 (1970). This Court concluded that Hartnett was inapposite to the case at bar due to factual dissimilarities between the cases (Decision and Order, pp. 8-10), and that due to these dissimilarities, Hartnett cannot be interpreted to impose additional duties of care on ConAgra. (Decision and Order, pp. 7-8). Finally, this Court concluded that even if it were to hold that ConAgra was a stevedore as a matter of law, as the Hartnett court did with its owner of a grain elevator, the stevedore's duty to indemnify in Hartnett ran only to the shipowner, and did not disturb the grain elevator ...


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