BURNS, District Judge:
Showboat Hotel (Showboat) appeals from an order granting summary judgment to third-party defendants R. C. Johnson & Associates (Johnson) and Jonny Industries (Jonny) on Showboat's third-party complaint. By granting summary judgment without oral argument despite Showboat's timely request for oral argument, the district court violated F.R.C.P. 56 and its own local rules, causing prejudice to Showboat. Accordingly, we reverse and remand for reconsideration following oral argument.
In 1962 Showboat contracted with Johnson as general contractor to construct an addition to the hotel. Johnson subcontracted with Jonny to supply shower-door assemblies for the new rooms, which assemblies
Over 10 years later, in August 1974, Loretta Jasinski allegedly sustained injury when a shower-door assembly collapsed upon her in the bathtub of her rented room at the Showboat Hotel. Jasinski sued Showboat in the United States District Court for the District of Nevada under that court's diversity jurisdiction. Her complaint alleges, among other particulars, that Showboat negligently failed to inspect, repair or replace the "defective shower door," and failed to warn guests or to "properly install" the shower door.
Showboat answered, denying responsibility, and filed a third-party complaint against Jonny and Johnson, alleging that the former negligently designed the door assembly and the latter negligently purchased and installed the faulty doors in 1963. Each third-party defendant moved separately for summary judgment on the ground that the third-party complaint was barred by Nevada Revised Statutes § 11.205, requiring generally that actions against persons involved in the construction of an improvement to real property be brought within six years after substantial completion of the improvement.
In this appeal Showboat contends that the district court's decision must be reversed because: a) the court allowed summary judgment without granting Showboat's request for oral argument; b) the application of NRS 11.205 to Jonny, which allegedly supplied but did not install the shower-door assemblies, was clearly erroneous; and c) NRS 11.205 offends Nevada's state constitution. Our disposition of the first ground for appeal makes it unnecessary to reach the latter two.
It is undisputed that the court below failed to comply with District of Nevada Local Rule 16(g), which requires oral argument on all motions for summary judgment
Id. at 462 (footnotes, citation omitted).
Third-party defendants Jonny and Johnson argue that noncompliance with local rules does not require reversal unless the appellant demonstrates prejudice resulting from the breach. Showboat responds that noncompliance with FRCP 56 requires reversal without regard to prejudice or, alternatively, that the appellee should bear the burden of showing that noncompliance with local or federal rules of procedure did not prejudice the appellant.
The district court candidly expressed its uncertainty about the proper interpretation of NRS 11.205. The court agreed with Showboat that the most reasonable interpretation, and the one probably intended by the state legislature, would exclude mere materialmen and suppliers from the statute's six-year bar. But the court applied the statutory bar to the action against supplier Jonny Industries on the strength of the sole Nevada decision to have construed NRS 11.205, Nevada Lakeshore Co. v. Diamond
The finding of prejudice based upon the district court's statutory interpretation does not extend to Johnson because, as Showboat concedes, NRS 11.205 clearly applies to the general contractor. In this appeal, however, Showboat challenges the validity of NRS 11.205 under several provisions of Nevada's state constitution. Although Showboat failed to raise these issues in its memoranda to the district court, it is quite possible that the additional time provided by scheduling oral argument, or the colloquy between court and counsel, would have given the district court an opportunity to consider the constitutional questions.
We therefore reverse the order granting summary judgment to R. C. Johnson & Associates.
The scope of the Dredge Corporation principle is not universal. In prisoner civil rights cases, 42 U.S.C. § 1983, there is no absolute right to be heard orally where the defendant has moved for summary judgment, except in the most compelling circumstances, a matter left to judicial discretion. See, Price v. Johnston, 334 U.S. 266, 285-86, 68 S.Ct. 1049, 1060-61, 92 L.Ed. 1356 (1948); Holt v. Pitts, 619 F.2d 558 (6th Cir. 1980); Cf. Wimberley v. Rogers, 557 F.2d 671 (9th Cir. 1977) (dictum) (the court declined to hear the respondent's oral argument on summary judgment because of the unavailability of the plaintiff-prisoner). We need not delineate the precise dimensions of this exception, however, because it is clearly well removed from the present case.
A number of courts have addressed the coverage of suppliers under similar statutes, either directly, Reeves v. Ille Electric Co., 551 P.2d 647, 653 (Mont.1976); Howell v. Burk, 90 N.M. 688, 568 P.2d 214, 219, 233 (1977), or indirectly, Carter v. Hartenstein, 455 S.W. 918, 920 & n.1 (Ark.1970); Skinner v. Anderson, 38 Ill.2d 455, 231 N.E.2d 588, 591 (1967); Broome v. Truluck, 270 S.C. 227, 241 S.E.2d 739, 740 (1978); Kallas Millwork Corp. v. Square D Co., 66 Wis.2d 382, 225 N.W.2d 454, 459 (1975); Smith v. Allen-Bradley Co., 371 F.Supp. 698 (W.D.Va.1974). See Comment, Limitation of Action Statutes for Architects and Builders-Blueprints for Non-action, 18 Cath.U.L.Rev. 361, 361. Although these authorities generally support Showboat's position that mere materialmen are not covered by the statute, not all of them were cited to the court below.