UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 two-
pronged 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 Man-
lift." See J.A. at 124. Another warning, appearing both inside and out-
side 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, seri-
ously 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 law-
suit 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 ser-
vice 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 Com-
pany 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 grant-
ing 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 inter-
nally 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 fash-
ion, 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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