concluding that the plaintiff did not present any evidence proving the existence of a conspiracy between the defendant and the defen dant’s attorneys because the attorneys “were motivated not by personal concerns but by concerns for their clients”
How later courts described this case
- concluding that the plaintiff did not present any evidence proving the existence of a conspiracy between the defendant and the defen dant’s attorneys because the attorneys “were motivated not by personal concerns but by concerns for their clients”
- doubting the applicability of the intracorporate conspiracy doctrine to a case with equal protection violations at issue, but holding that the intracorporate conspiracy doctrine did not apply under the facts of that case because the defendants’ activities went beyond a “single act” and instead involved a series of acts by multiple actors over time
- noting the corporate agency immunity applied to in-house and outside counsel and that it ascertained “no evidence whatsoever of unlawful or unethical conduct on the part of [the corporation’s counsel], let alone conduct which would permit a jury to infer that he was conspiring with [the corporation] to affect [the plaintiff]’s right”
- granting motion to dismiss § 1985(3) allegation for failure to state a claim upon which relief may be granted because intracorporate conspiracy doctrine precluded finding of conspiracy
Written by the judges who cited it.
The opinion
WEICK, Senior Circuit Judge,
concurring in part and dissenting in part.
I
I concur in that part of the well-written opinion of the majority to the effect that *345 plaintiff Doherty failed to prove a conspiracy between “two or more persons” as required by 42 U.S.C. § 1985 (a).
A corporation cannot be convicted of conspiring with its own employees or agents as it can only act through its employees and agents. There was not an iota of evidence that the corporation, AMC, conspired with Doherty’s attorney Maniré. The district court erred in denying the corporation’s motion for a directed verdict at the close of plaintiff’s evidence and its motion for judgment N.O.V. The judgment of the district court should, therefore, be reversed and the cause remanded for dismissal of the complaint and not merely remanded for further proceedings as provided in the majority opinion.
II
Collateral Estoppel
Doherty’s entire cause of action was also barred by the doctrine of collateral estop-pel. Furthermore, Doherty testified falsely at the hearing before District Judge Bailey Brown where he changed his plea from not guilty to nolo contendere. He ought not to profit by giving false testimony.
The nolo contendere pleas were first submitted to Judge Brown by American Motors and John L. Houtaling. Judge Brown then addressed Doherty as follows:
THE COURT: You are, of course, Mr. A.J. Doherty?
MR. DOHERTY: Yes, sir.
THE COURT: Mr. Doherty, you are named in count two and four, is that right?
MR. DOHERTY: Yes, sir.
THE COURT: And the proposal is that you pay a fine, total fine of $3,000, $1,500 on each of these two counts, two and four, a Nolo Contendere plea, is that what you want to do?
MR. DOHERTY: Yes, sir.
THE COURT: Now, you believe you understand what you are charged with, do you not?
MR. DOHERTY: Yes, sir.
THE COURT: You have been here throughout this trial, of course?
MR. DOHERTY: Yes, sir.
THE COURT: And you know you are entitled to have the trial go on to completion if you want to?
MR. DOHERTY: Yes, sir.
THE COURT: You make this plea of Nolo Contendere freely and voluntarily?
MR. DOHERTY: Yes, sir.
THE COURT: Has anyone, by that I mean, anyone promised you anything in connection with this plea other than the proposed fine of $3,000?
MR. DOHERTY: No, sir.
THE COURT: Has anyone threatened you in any way?
MR. DOHERTY: No, sir.
THE COURT: You are not under the influence of any alcohol or drugs at this time?
MR. DOHERTY: No, sir.
THE COURT: And you are satisfied with your representation in this case?
MR. DOHERTY: Yes, sir.
THE COURT: And I take it now that if the Court imposes these fines that they will be paid within 15 days, can you do it, Mr. Doherty?
MR. DOHERTY: Yes, sir, I can do that. THE COURT: All right. The court does find a basis in fact for these Nolo Conten-dere pleas based on the trial up to this point. Is there anything further from your side, Mr. Burch?
(App. 30a-33a).
The court then imposed the following sentence on Doherty. On a plea of nolo contendere of the defendant A.J. Doherty as to each of the two counts in which he’s charged, it is the judgment of the court that he pay a fine of $1,500 in each of these counts, a total fine of $3,000, which must be paid by January 10, 1975. (App. 33a).
Doherty, by his attorney, William J. Weinstein, filed in the district court a Motion To Set Aside Plea of Nolo Contendere and Sentence and For a New Trial, Affidavit in Support Thereof, Memorandum of Authorities and Citations. Judge Bailey *346 Brown presided at the hearing which was attended by Doherty’s attorney, Weinstein, and Larry Parrish, Assistant United States Attorney. Doherty did not even attend the hearing. His attorney, Weinstein, advised the court in answer to a question by the court as to whether Doherty was here and Weinstein stated he is not and is living in Hong Kong. The court heard only the statements and arguments of counsel. Weinstein called no witnesses to testify and none were called by the government. All had a full and fair opportunity to litigate. (App. 35a to 85a). Judge Brown, in denying the Motion stated:
THE COURT: Well, let me say this to you. At the time your client changed his plea from not guilty to nolo, all the proof was in — all we had left was Austin’s testimony; and if this case had gone to the jury with all the proof in, the Court feels there would have been a very definite chance he would have been convicted, and if he had been convicted, I would have given him some time without any question about it, instead of giving him a $3,000.00 fine, I would have given him three or four years in the penitentiary. Now, that being true, I can’t see where the great complaint is.
Doherty was fortunate in having his nolo contendere plea accepted because, after its acceptance, the trial proceeded against the defendant, Austin, who was found guilty by the jury.
Weinstein acted as Doherty’s attorney in filing the present civil rights action.
AMC defended itself in Doherty’s civil rights action on a number of different grounds, but principally on the grounds that no conspiracy could exist between itself and its own employees and that the action was barred by the doctrine of res judicata or collateral estoppel. It also alleged that Doherty testified falsely before District Judge Bailey Brown at the nolo contendere hearing and that Doherty ought not to be permitted to profit thereby.
The false testimony was admitted in the verified complaint filed by Doherty in his present civil rights action where he stated in paragraph 20:
That as a result of the threats, promises and coercion on the part of the conspirators, your plaintiff was compelled to enter a nolo contendere to the charges in the indictment, and he was “counselled” and compelled to falsely testify before the trial judge that he was satisfied with his counselling, that he understood the nature of the charges, that he made the plea of nolo contendere freely and voluntarily, that no one had threatened him, nor had they promised anything other than proposed fine of $3,000, because of his fear of consequences that if he did not do so that he would suffer irreparable harm, all the proximate cause of the actions of the co-conspirators, jointly and collectively (emphasis ours).
In the present civil rights action, Doherty testified under oath at the trial before a jury in answer to a question by his lawyer Weinstein as follows:
Q. Did you- — were your answers to the Judge’s questions true?
A. They were complete lies. (App. 103).
At the hearing before District Judge Brown on Doherty’s Motion To Set Aside Plea Of Nolo Contendere And Sentence, and Motion For A New Trial, which Doherty neglected to even attend, he had a full and fair opportunity to litigate all of the issues involved in his civil rights action and the judgment entered by District Judge Brown denying said motion to set aside his plea of nolo contendere from which Doherty appealed to this court, which appeal was dismissed by this court for Doherty’s failure to even file a brief in response to an order of this court to show cause, constituted res judicata or collateral estoppel. The question raised as to burden of proof is not applicable, as Doherty simply neglected to litigate all of the issues when he had a full and fair opportunity to do so.
During the trial of the present civil rights action, Doherty took a video tape deposition of Judge Brown, but Judge Brown adhered to his previous decision.
*347 In Allen v. McCurry, 449 U.S. 90 , 101 S.Ct. 411 , 66 L.Ed.2d 308 (1980), the Supreme Court in an opinion written by our Circuit Justice Potter Stewart applied the doctrine of collateral estoppel in a § 1983 proceeding to a state court criminal trial involving issues of search and seizure, where the state court held a hearing on respondent’s motion to suppress evidence and respondent did not assert that the state courts had denied him a full and fair opportunity to assert his search and seizure claim and held that he was barred by Stone v. Powell, 428 U.S. 465 , 96 S.Ct. 3037 , 49 L.Ed.2d 1067 (1976) in an action for damages filed under 42 U.S.C. § 1983 against police officers who entered his home and seized the evidence in question. This ruling should apply with equal force to federal criminal trials.
Other pertinent decisions on res judicata or collateral estoppel are: Commissioner v. Sunne, 333 U.S. 591, 597 , 68 S.Ct. 715, 719 , 92 L.Ed. 898 (1948); Emich Motors Corp. v. General Motors Corp., 340 U.S. 558 , 71 S.Ct. 408 , 95 L.Ed. 534 (1951); Ashe v. Swenson, 397 U.S. 436 , 90 S.Ct. 1189 , 25 L.Ed.2d 469 (1970); Montana v. United States, 440 U.S. 147 , 99 S.Ct. 970 , 59 L.Ed.2d 210 (1979); Federated Department Stores v. Moitie, 452 U.S. 394, 398 , 101 S.Ct. 2424, 2427-2428 , 69 L.Ed.2d 103 (1981); McCord v. F. Lee Bailey, 636 F.2d 606 (D.C.Cir.1980), cert. denied, 451 U.S. 983 , 101 S.Ct. 2314 , 68 L.Ed.2d 839 (1981); Allen v. McCurry, 449 U.S. 90 , 101 S.Ct. 411 , 66 L.Ed.2d 308 (1980).
Sixth Circuit cases on collateral estoppel or res judicata: Ivery v. United States, 686 F.2d 410 (6th Cir.1982), cert. denied, — U.S. —, 103 S.Ct. 1428 , 75 L.Ed.2d 788 (1983) (Merritt, Jones and Weick, JJ.); Coe, et al. v. Michigan Dept. of Education, 693 F.2d 616 (6th Cir.1982) (Keith, Merritt and Peck, JJ.); Coogan v. Cincinnati Bar Association, 431 F.2d 1209, 1211 (6th Cir.1970) (Weick, Edwards and Brooks, JJ.). Coogan was cited with approval by the Supreme Court in Allen v. McCurry, 449 U.S. 90, 97 , in. 9, 101 S.Ct. 411 , 416 fn. 9, 66 L.Ed.2d 308 (1980), in an opinion written by our Circuit Justice Potter Stewart holding that in a damage suit against state police officers filed in the federal court under 42 U.S.C. § 1983 , the decision of the state court in a criminal case on motion to suppress evidence that had been seized by police had collateral estoppel effect. We should uphold the decision of District Judge Bailey Brown. *
The judgment of the district court should be reversed and the cause remanded with instructions to dismiss the complaint.
After the completion of this dissenting opinion, but prior to the publication of the majority opinion and the dissent, the Supreme Court of the United States in United States v. Stauffer Chemical Company, — U.S. —, 104 S.Ct. 575 , 78 L.Ed.2d 388 on January 10, 1984, affirmed the judgment of this court in United States v. Stauffer Chemical Co., 684 F.2d 1174 (6th Cir.1982) and clarified the doctrine of collateral estoppel. It requires entry of the judgment provided for in the above dissenting opinion.