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KEISTER v. DOW CHEM. CO.

October 8, 1989

JERRY L. KEISTER, ET AL., Plaintiffs,
v.
THE DOW CHEMICAL COMPANY, VERTAC CHEMICAL CORPORATION, AND HERCULES, INC., Defendants


Bruce M. Van Sickle, United States District Judge.


The opinion of the court was delivered by: VAN SICKLE

BRUCE M. VAN SICKLE, UNITED STATES DISTRICT JUDGE

 Introduction

 Plaintiffs claim the negligent manufacture of chemicals at a plant owned and operated by Hercules and later Vertac injured them. Plaintiffs assert that Vertac was an independent contractor of Dow, which is therefore liable for some of their damages. Plaintiffs assert claims under federal statutes 42 U.S.C. §§ 9601, 9607(a), and 9613(b). Jurisdiction over the subject matter is therefore gained pursuant to 28 U.S.C. § 1331.

 Dow, feeling its case would be prejudiced by defending with Hercules and Vertac, filed a motion for severance on June, 29, 1989. Plaintiffs filed a response in opposition to the motion on July 13, 1989, three days after the eleven day time for response described in Rule 20(b). See Rules of the U.S. District Courts for the Eastern and Western Districts of Arkansas. When computing the time allowed to respond, Saturdays, Sundays, and legal holidays will be included when the period of time prescribed is eleven days or more. Fed. R. Civ. P. 6(a). Plaintiffs did not request an extension to lengthen the time for response. In its motion, Dow asks that

 
this court enter an order directing that all of defendants' claims against Dow be resolved in a separate trial from plaintiffs' claims against the other defendants . . . if this Court should determine that it is inappropriate to sever plaintiffs' claims against Dow at this time, Dow requests that the Court order that a limited trial be held to resolve plaintiffs' allegation that Dow is vicariously liable for the acts or omissions of Vertac and Dow's defenses to that allegation.

 Dow filed a "Reply Memorandum" on August 1, 1989 "in order to demonstrate to the Court the extent to which plaintiffs misrepresent both law and fact. . . ."

 Facts

 During the 1970s, Vertac manufactured several chemical products which Dow purchased. Whether Vertac was acting as an independent contractor for Dow or whether Dow was merely purchasing a finished product from Vertac is a central issue in this case. Dow provided the chemicals to Vertac that it used to manufacture 2,4,-D, 2,4,5-T, and 2,4,5-TP. This Court has previously issued a motion denying Dow's request for summary judgment as to whether Vertac was acting as Dow's independent contractor. Dow now claims that its interests would be unfairly prejudiced if it were forced to defend with Hercules and Vertac. Dow has filed a motion for severance which is currently before the Court.

 Issues

 1) Whether Dow's motion should be treated as one for severance under Rule 21 or one for separate trial under Rule 42(b).

 2) Whether an order for separate trials is in the discretion of the Court.

 3) Standard for granting a separate trial:

 
A) Whether Dow would be unduly prejudiced by defending its case with Hercules and Vertac.
 
B) Whether trying the case against Dow and the other defendants would ...

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