UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

VICTOR F. BEGLEY; JAMES L. BEGLEY;

TONY T. BEGLEY; WAYNE W.

BROWN; TIMOTHY C. BEGLEY,

Plaintiffs-Appellants,

No. 96-1493

v.

GEHL COMPANY, INCORPORATED,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Virginia, at Roanoke.

Jackson L. Kiser, Senior District Judge.

(CA-95-1055-R)

Argued: May 6, 1997

Decided: May 27, 1997

Before LUTTIG, WILLIAMS, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Easter Peter Moses, Roanoke, Virginia, for Appellants.

Melissa Walker Robinson, GENTRY, LOCKE, RAKES & MOORE,

Roanoke, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Worth, Inc. hired Brick Mason Contractors to perform certain

chimney masonry work on the side of an old home that was being

converted to an office. To aid in this work, Worth Inc. leased from

Rentco, Inc. and provided to Brick Mason Contractors a "Dynalift

663" forklift manufactured by appellee Gehl Company. The Dynalift

663 forklift is, as manufactured, essentially a truck with a telescoping

boom (which can extend both upward and outward) which has a twopronged fork at the end. This particular Dynalift 663 was delivered

to Brick Mason by Rentco, and Rentco agents secured a large metal

cage of unknown origin to the forks of the forklift. With the cage

attached, the forklift could be used as a "manlift" to elevate people to

perform work. The Dynalift 663 was liberally plastered with

conspicuously-located bright-colored warning labels with large print,

one such warning expressly stating "Do Not Use Machine As a Manlift." See J.A. at 124. Another warning, appearing both inside and outside the equipment cab, read "No Riders Allowed. Failure to observe

warning could result in injury or death." See J.A. at 51. Numerous

other warnings were also posted on the forklift, including warnings

not to operate the lift without the operator's manual. The operator's

manual included numerous additional instructions and warnings

against using the Dynalift 663 forklift as a manlift.

Appellants, five employees of Brick Mason contractors, were lifted

up in the cage attached to the boom of the Dynalift 663 to perform

their repair work by Freddie Begley, Brick Mason's owner. After

some work was performed, the forklift was positioned perpendicular

to the side of the building on an incline, with the two left wheels on

the upside of the incline and the two right wheels on the downside of

the incline. The plaintiffs were lifted to a height of approximately

thirty-three feet, and then the forklift's boom, holding the forks and

cage, was extended forward. The forklift thereafter overturned, seriously injuring the plaintiffs. See J.A. at 515-16.

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The accident was investigated by the Virginia Department of

Labor, which cited and fined Brick Mason Contractors for allowing

passengers to ride in a power truck on a work platform that was not

provided by the manufacturer. See J.A. at 121.

The plaintiffs initially brought suit in state court against both Gehl

Company and Rentco on negligence and breach of warranty theories.

After some discovery, the state court dismissed the plaintiff's case

against Rentco based on Rentco's statutory defense as an employer

under the worker's compensation statute. The plaintiffs eventually

nonsuited their action against Gehl Company on grounds that they

were unable to reasonably predict the future extent of their damages

at that time. The plaintiffs later refiled against Gehl Company in state

court, and Gehl removed the case to federal court.

The federal district court entered a pretrial order in the second lawsuit on October 27, 1995, establishing deadlines for discovery,

motions, and other pretrial matters. Paragraph four of that order stated

that "[a]ll motions must be accompanied by a supporting brief. . . .

Briefs in opposition must be filed within 14 days of the date of service of the movant's brief. . . . EXCEPT FOR GOOD CAUSE

SHOWN, IF BRIEFS IN OPPOSITION TO THE MOTIONS ARE

NOT FILED, IT WILL BE DEEMED THAT THE MOTION IS

WELL TAKEN." J.A. at 1032 (capitalization in original). Gehl Company filed a motion for summary judgment on December 9, 1995. The

plaintiffs' counsel made no response within the time period set by the

district court. Gehl then filed a supplemental motion for summary

judgment based on the plaintiff's failure to file a memorandum in

opposition to summary judgment within fourteen days, in violation of

a pretrial order. The plaintiffs responded by filing a motion to stay the

summary judgment hearing and extend time for additional discovery.

The district court overruled the plaintiffs' motion, and granted

Gehl's motion for summary judgment based both on the merits of the

dispute and on Gehl's violation of the pretrial order.

On appeal, the plaintiffs argue that the district court erred in granting summary judgment to the defendants on the merits of their claim

by misapplying state tort law. They also argue that the district court

failed to consider the factors outlined in Herberts v. Saffell, 877 F.2d

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267 (4th Cir. 1989), prior to granting summary judgment for failure

to file responsive pleadings pursuant to the pretrial order. Plaintiffs

also argue that the failure to file a response should have been excused,

claiming that the court's order was ambiguously worded and internally inconsistent.

Having carefully reviewed the record, briefs, and the contentions

of the parties at oral argument, we affirm the district court on the

opinion of that court.

AFFIRMED

MICHAEL, Circuit Judge, concurring in part and concurring in the

judgment:

I concur in the judgment and readily concur in the majority opinion

insofar as it affirms the district court on the merits. However, I

believe the district court used the wrong standard (excusable neglect)

in deciding its alternative grounds for dismissal, which was based on

the plaintiff's failure to file a timely brief in response to defendant's

motion for summary judgment. Instead of the "excusable neglect"

standard used for the failure to file a timely answer or appeal, the

court should have applied a more lenient test identical to the one used

in Fed. R. Civ. P. 41(b) dismissals and set forth in Herbert v. Saffell,

877 F.2d 267 (4th Cir. 1989). See id. at 270 (holding that district

courts must consider the following factors: the degree of personal

responsibility of the plaintiff, the amount of prejudice caused to the

defendant, any history of deliberately proceeding in a dilatory fashion, and the existence of sanctions less drastic than dismissal).

Because the district court used the wrong standard, I cannot vote to

affirm on the alternative grounds for dismissal.

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