# Pierce v. Cook & Co.

> Court of Appeals for the Tenth Circuit · June 24, 1975 · 518 F.2d 720

URL: https://www.frixlaw.com/law-library/cases/8896801

## Case

- **Full name:** Claudiatte PIERCE, as surviving widow of Teddy Joe Pierce, for herself and Letitia Pierce, minor child of Teddy Joe Pierce v. COOK & CO., INC., Defendant-Appellee Stephen ELLENWOOD, a minor under the age of 21 years, who sues by Judson Ellenwood, as next friend v. COOK & CO., INC.
- **Court:** Court of Appeals for the Tenth Circuit
- **Decided:** June 24, 1975
- **Citations:** 518 F.2d 720; 20 Fed. R. Serv. 2d 541
- **Precedential status:** Published
- **Opinion:** Concurrence by Barrett
- **Judges:** Barrett, Breitenstein, Doyle, Hill, Holloway, Lewis, McWilliams, Seth
- **Cited by:** 118 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8896801

## How later opinions describe it (automated extraction)

- finding extraordinary circumstances where the change in law arose out of the same accident in which the plaintiffs had been involved

## Opinion text

BARRETT, Circuit Judge
(concurring in the result):
I concur in the result reached by the majority. Notwithstanding my strong disinclination to disturb a final judgment, I conclude that under the circumstances of this case that such is necessary in order to effect fundamental justice, thus justifying application of Rule 60(b)(6), Fed.R.Civ.P. on behalf of plaintiffs-appellants (hereinafter referred to as Pierce-Ellenwood).
Pierce-Ellenwood filed their respective actions in state courts. Defendant-appellee (hereinafter referred to as Cook) removed the actions to federal district court on diversity grounds. 1
It is fundamental that in diversity cases, the federal courts must (as in the instant consolidated cases) accept the most recent pronouncement of state law. The difficulty with such reliance, however, is succinctly pointed up in the case at bar — when the highest court in the state subsequently overrules the state law decision relied upon by the federal courts.
The “danger ahead” signal should always be out in diversity actions. The majority opinion evidences a most striking example.
We have held that the difficulties of ascertaining what the highest court in a state may subsequently determine the state law to be does not, in and of itself, afford sufficient grounds for the federal court to decline to exercise its jurisdiction to decide a diversity case properly before it. Holt v. King, 250 F.2d 671 (10th Cir. 1957); and see Preston v. Aetna Life Ins. Co., 174 F.2d 10 (7th Cir. 1949), cert. denied, 338 U.S. 829 , 70 S.Ct. 80 , 94 L.Ed. 504 (1949). And we have held that the views of a federal district judge, who is a resident of the state where the controversy arose in a case involving interpretations of the law of the state, carry extraordinary persuasive force on appeal where there are no state decisions on point or none which provide a clear precedent. United States v. Wyoming National Bank of Casper, 505 F.2d 1064 (10th Cir. 1974), (the absence of a controlling state decision); Hardy Salt Company v. Southern Pacific Transportation Company, 501 F.2d 1156 (10th Cir. 1974), (unsettled peripheral questions of state law); Casper v. Neubert, 489 F.2d 543 (10th Cir. 1973), (on unsettled law in his state); Stafos v. Jarvis, 477 F.2d 369 (10th Cir. 1973), cert. denied 414 U.S. 944 , 94 S.Ct. 230 , 38 L.Ed.2d 168 (1973), (not aided in its consideration by either administrative interpretation or judicial expression from state court); Industrial Indemnity Company v. Continental Casualty Company, 375 F.2d 183 (10th Cir. 1967), (no decisions from Oklahoma courts in point or which are analogous); Mitton v. Granite State Fire Ins. Co., 196 F.2d 988 (10th Cir. 1952), (the Colorado courts have not passed upon the right to interest in cases similar to the one before us and we are unwilling to overrule the considered appraisal of the Trial Judge).
In my view, Rule 60(b)(6) supra, should always be applied in order to relieve a party who did not invoke the jurisdiction of the federal court in a diversity suit from a judgment adverse to that which would otherwise have been *725 favorable in the state court forums. One who invokes the jurisdiction of the federal court when the diversity requirements are present should pay the consequences of that election. A change in state law should not be cause for relief to one who has voluntarily selected that forum. Such a litigant is not entitled to the proverbial “two bites at the apple.” Furthermore, such application should do much to promote and strengthen proper Federal-State court relations.
. 28 U.S.C. § 1441 provides, inter alia, for removal only if none of the parties joined and served as • defendants is a citizen of the State in which the action is brought. 28 U.S.C. § 1332 vests original jurisdiction in federal district courts in all civil actions where the matter in controversy exceeds the sum of $10,-000.00, exclusive of interests and costs, and is between — (1) citizens of different States . .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8896801. Public record. Not legal advice.