Opposition — Thompson v. Covington Housing Development Corp.

In The

SUPREME COURT OF THE UNI

OCTOBER TERM, 1978

DEC 15 1978

WSTABESie.. cuere_

—— ere

NO. 78-814

EDDIE THOMPSON, JR..,

Plaintiff-Petitioner,

Vv.

COVINGTON HOUSING DEVELOPMENT

CORPORATION,

JOSEPH CONDIT

and

JUNE HEDRICK,

Defendants-Respondents.

BRIEF OF RESPONDENTS IN RESPONSE TO

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

CHARLES P. WAGNER

711 Scott Street

Covington, Kentucky 41011

Attorney for Respondents:

Joseph Condit

June Hedrick

I hereby certify that 3 copies of the foregoing Brief of

Respondents in Response to Petition for a Writ of Certi-

orari to the United States Court of Appeals for the

Sixth Circuit has been served by United States Mail

upon Mr. Eddie Thompson, Jr., Pro Se, 736 Highland

Avenue, Co on, Kentucky 41011, this ..45.° day

of os (hit, A?

COURT INDEX PRESS, INC. — 215 E. Ninth Street, Cincinnati, Ohio 45202 — (513) 241-1450

TABLE OF CONTENTS

page

STATEMENT OF THE CASE ................. ]

QUESTION PRESENTED ...................... 8

nt os uf, SE TOLER EEE SE ee Te Ol hee 3

I. There was no final appealable order to give the

United States Court of Appeals for the Sixth

Circuit jurisdiction to hear and rule upon the

PI Kis a> Ce eu reeks sare ee a es 8

GPE 155 SF Geis br bed corneas eee

APPENDIX:

Cnmier GS Tsteet QE cece la-2a

Memorandum of District Court ................ 3a-8a

Order of United States Court of Appeals for the

ey Rk Ee Ae Le ra ae 8a-9a

TABLE OF AUTHORITIES

Cases:

William B. Tanner Co., Inc. v. United States,

575 F 2d 101 (6th Cir. 1978) .........

Moody v. Kapica,

548 F2d 133 (6th Cir. 1976) ...........

Statutes:

PS OUI soon sv alerete's viebvaaes

Miscellaneous:

Federal Rues of Civil Procedure,

en da BOREAS Se eee TO

Rules of the Supreme Court, Rule 19(1) ..

In The

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

NO. 78-814

EDDIE THOMPSON, JR.,

Plaintiff-Petitioner,

Vv.

COVINGTON HOUSING DEVELOPMENT

CORPORATION,

JOSEPH CONDIT

and

JUNE HEDRICK,

Defendants-Respondents.

BRIEF OF RESPONDENTS IN RESPONSE TO

PETITION FOR A WRIT OF CERTIORARI T.

THE UNITED.STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

STATEMENT OF THE CASE

The Petitioner, Eddie Thompson, Jr., commenced this

action in the United States District Court for the Eastern

District of Kentucky on September 23, 1977 against Cov-

ington Housing Development Corporation, Joseph Condit

and June Hedrick.

2

Joseph Condit and June Hedrick filed their answer and

subsequently filed several motions to dismiss the com-

plaint. The District Court on October 5, 1977 dismissed

the action as to Joseph Condit and June Hedrick, but

retained the case on the docket as to the remaining De-

fendant, Covington Housing Development Corporation.

(App. la-2a)

Eddie Thompson, Jr., in essence, moved the Court to

certify the question of law so that he could appeal. Jos-

eph Condit and June Hedrick interposed no objection to

this motion, as at some point in time Eddie Thompson, Jr.

was going to appeal. There was no objection to the ap-

peal being sooner rather than later. The District Court

overruled the motion and did suggest orally in open court

that the remaining Defendant, Covington Housing Devel-

opment Corporation, could be dismissed as a Defendant,

thereby finalizing the matter.

Eddie Thompson, Jr. did not heed the advice of the

District Court and did not proceed against the remaining

Defendant so as to finalize the action, but rather filed an

appeal to the United States Court of Appeals for the Sixth

Circuit.

The United States Court of Appeals for the Sixth Circuit,

on its own initiative, entered an order on September 18,

1978, dismissing the appeal on the basis that there was no

final appealable order and there was no jurisdiction to

consider the appeal. (App. 8a-9a) This action put the mat-

ter back into the District Court but Eddie Thompson, Jr.,

instead, petitioned for a Writ of Certiorari.

8

ISSUE

The correct issue involved in this present proceeding is:

I) There was no final appealable order to give the

United States Court of Appeals for the Sixth Circuit

jurisdiction to hear and rule upon the appeal.

ARGUMENT

The Petition for a Writ of Certiorari should be denied

for the reason that:

1) There was no final appealable order to give the

United States Court of Appeals for the Sixth Cir-

cuit jurisdiction to hear and rule upon the Appeal.

The District Court in its memorandum and order of

October 5, 1977 dismissed two of three named Defendants.

The District Court specifically retained the case on the

docket as to the Defendant, Covington Housing Develop-

ment Corporation.

The District Court did not make an express determina-

tion under Rule 54 (b), or a certification under 28 U.S.C.

§ 1292 (b) so that an appeal could be taken.

Since there was no final appealable order, the United

States Court of Appeals for the Sixth Circuit had no jur-

isdiction to consider the appeal of the Petitioner. William

B. Tanner Co., Inc. v. United States, 575 F 2d 101 (6th

Cir. 1978); Moody v. Kapica, 548 F 2d 133 (6th Cir.

1976) . Consequently, the dismissal of the appeal was prop-

er. The right of the Petitioner to an appeal on the merits

is still present. This put the matter back into the District

Court where the Petitioner has the opportunity to pursue

his case to finalization. The right of the Petitioner to an

appeal on the merits is still present after the case has been

finalized in the District Court.

4

CONCLUSION

The Petition and the Record does not show that there

are any reasons for a Writ of Certiorari to be issued for the

review of this case pursuant to Rule 19(1) of the Rules

of the Supreme Court of the United States.

Respectfully submitted,

CHARLES P. WAGNER

711 Scott Street

Covington, Kentucky 41011

Attorney for Respondents,

Joseph Condit and

June Hedrick

APPENDIX

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

COVINGTON

CIVIL ACTION NO. 77-35

EDDIE THOMPSON, JR.,

PLAINTIFF,

vs.

COVINGTON HOUSING DEVELOPMENT

CORPORATION, ET AL.,

DEFENDANTS.

ORDER

(Filed October 5, 1977)

In accordance with the Memorandum Opinion of even

date, it is

ORDERED AS FOLLOWS:

1. The defendants’, Condit’s and Hedrick’s, motion to

dismiss this action as barred by the statute of limitations is

hereby sustained as to the plaintiff's causes of action under

42 U.S.C. §§ 1985 and 1986, and overruled as to the plain-

tiff’s claim under 42 USC §§ 1981 and 1983.

la

2a

1. The defendants’ Condit’s and Hedrick’s, motion to

dismiss this action on the basis of res judicata is hereby

sustained.

3. This case be and is dismissed as to the defendants,

Condit and Hedrick, but shall remain on the docket as of

the remaining defendant, Covington Housing Development

Corporation.

This 5 day of October, 1977.

/s/ EUGENE E. SILER, JR.,

JUDGE

$a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

COVINGTON

CIVIL ACTION NO. 77-35

EDDIE THOMPSON, JR.,

PLAINTIFF,

VS.

COVINGTON HOUSING DEVELOPMENT

CORPORATION, ET AL.,

DEFENDANTS.

MEMORANDUM OPINION

(Filed October 5, 1977)

This civil rights action was insigated by the plaintiff,

Eddie Thompson, Jr., pro se, alleging a conspiracy to

deprive him and others of wages due and to deprive him

or his job as director of the defendant, Covington Housing

Development Board. The matter is before the Court now

on motions by defendants, Joseph Condit and June Hed-

rick, to dismiss this action. Defendants base their motions

on the grounds that the Court lacks jurisdiction to hear

the case and that the action is barred by the doctrine of

res judicata and the statute of limitations. Additionally,

defendants request that the Court dismiss the suit as a

class action and strike certain portions of the complaint

which refers to the class plaintiff purports to represent.

These issues will be considered separately.

4a

CLASS ACTION

The plaintiff argues that the facts and questions in this

suit are common to all members of the class. However,

the “class” consists of but four people, the plaintiff and

three other former employees of the corporation, all of

whom are readily identifiable. The Court cannot find

that the proposed ‘‘class is so numerous that joinder of all

members is impracticable.” FED.R.CIV.P. 23 (a). There-

fore, the action will not be certified as a class action and

any recovery will be limited to injuries sustained by the

named plaintiff.

STATUTE OF LIMITATIONS

The complaint alleges that the illegal actions occurred

in late 1972 and in the spring of 1973. This action was

filed on May 11, 1977. The defendants argue that the

action is barred by the statute of limitations.

This argument is clearly well taken as to the plaintiff's

cause of action under 42 U.S.C. § 1986. The last sen-

tence of that section provides that ‘“‘no action under the

provisions of this section shall be sustained which is not

commenced within one year after the cause of action has

accrued,”

The plaintiff also brought the action under 42 U.S.C.

§§ 1983 and 1985. Because a statute of limitation for

these sections is not contained either in the Civil Rights

Act or elsewhere in the federal statutes, the applicable

period of limitation is that which Kentucky would enforce

had an action seeking similar relief been brought in Ken-

tucky state court. Garner v. Stephens, 460 F.2d 1144 (6th

Cir. 1972). The question before the Court is, therefore,

which Kentucky statute of limitations is appropriate for

actions under §§ 1983 and 1985.

5a

The plaintiff cites Kentucky-Tenn. L&P. Co. v. Moats,

290 Ky. 690, 162 S.W.2d 526 (1942), as authority that the

five year statute of limitations applies to actions earned

and unpaid. (§ 2515, Kentucky Statutes). However, KRS

413.120, which replaced §2515, contains no provision for

an action on wages. In any event, such a suit would be

considered an action on a contract and, inasmuch as there is

not diversity of citizenship of the parties, this Court would

have no jurisdiction to hear the case.

Defendants assert that the one year statute of limitations

for conspiracy contained in KRS 413.140(1) (c) is con-

trolling. The Court finds that this statute does not bar

the plaintiff's claim under 42 U.S.C. § 1985.

However, there remains plaintiff's claim under 42 U.S.C.

§§ 1981 and 1983. The applicable Kentucky statute of

limitations for this cause of action appears to be KRS

413.120 (2) :

The following actions shall be commenced within

five years after the cause of action accrued:

(2) An action upon a liability created by stat-

ute, when no other time is fixed by the statute cre-

ating the liability.

Therefore, the defendants’ motions to dismiss based on

the fact that this action is barred by the statute of limi-

tations will be sustained for the plaintiff’s causes of action

under 42 U.S.C. §§ 1985 and 1986, but overruled as to

the plaintiff's claim under 42 U.S.C. §§ 1981 and 1983.

RES JUDICATA

On October 4, 1973, a civil rights action styled Cov-

ington Housing Development Corp. and Eddie Thompson,

Jr. v. City of Covington, et al., was filed in the United

6a

States District Court, Eastern District of Kentucky as Cov-

ington, as civil action number 1752. Among the named

defendants in that suit were June Hedrick and Joe Condit,

defendants in the present action. The suit was brought

pursuant to 42 U.S.C. §§ 1981 and 1983 and jurisdiction

was invoked under 28 U.S.C. § 1343 (3). The corporation

alternatively sought damages or reinstatement of the devel-

opment, while plaintiff, Eddie Thompson, Jr., demanded

remuneration for the defendants’ racist hiring practices and

deflamatory allegations of fiscal irresponsibility.

On September 11, 1974, District Judge Mac Swinford,

entered Summary Judgment in favor of the defendants

based on the findings that (1) the corporation had no au-

thority to bring the action, and (2) the plaintiff, Thomp-

son, had no personal remedy for injuries suffered by the

corporation and that the deprivations inflicted on the

plaintiff individually were insufficient to justify retention

uf jurisdiction. 381 F.Supp. 427 (E.D. Ky. 1974), aff'd by

unpublished opinion, 513 F.2d 630 (6th Cir. 1975).

The case was appealed to the Supreme Court, where

the plaintiff's Writ of Certiorari was denied on October 6,

1975. 423 U.S. 869.

Defendants now assert that this action is barred by res

judicata. Although the plaintiff argues that “whether the

Director [Thompson] has any personal claim to be re-

solved by the court was not before the court when it

ruled Summary Judgment for defendants against Covington

Housing Development Corporation” (plaintiff's reply p.

3) , the record, as indicated above, shows otherwise. Both

Judge Swinford and the Appellate Court held that plaintiff

Thompson, as an individual, suffered no deprivation of his

civil rights.

It is a well settled principle that “res judicata may be

pleaded as a bar, not only as respects matters actually pre-

7a

sented to sustain or defeat the right asserted in the earlier

proceeding, ‘but also as respects any other available mat-

ters which might have been presented to that end.’ [ci-

tations omitted].’’ Chicot County Drainage Dist. v. Baxter

State Bank, 308 U.S. 371, 378 (1940). See also All States

Investors, Inc. v. Sedley, 399 F.2d 769 (6th Cir. 1968).

This principle was applied to a federal civil rights claim

in Scoggin v. Schrunk, 522 F.2d 436 (9th Cir. 1975), cert.

denied, 423 U.S. 1066 (1976). In Scroggin, the plaintiff

first sued in state court in the theories of unjust enrich-

ment and no timely notice of a foreclosure sale. After

an unfavorable decision, Ms. Scoggin brought an action

under 42 U.S.C. § 1983, seeking the same relief, but for

the first time saying her civil rights had been violated

by the sale of her property without notice. The District

Court held that unless the civil rights claim had actually

been tendered to the state court, res judicata did not apply.

In reversing, the Ninth Circuit held:

It is now established that where the federal consti-

tutional claim is based on the same asserted wrong

as the subject of a state action, and where the parties

are the same, res judicata will bar the federal consti-

tutional claim whether it was asserted in state court

or not, for the reason that the state judgment on the

merits serves not only to bar every claim that was

raised in state court, but also to preclude the asser-

tion of every legal theory or ground for recovery that

might have been raised in support of the granting of

the desired relief.

Id. at 437.

The present case arises out of the same set of facts and

involves the same parties as case number 1752. The Sum-

mary Judgment which was rendered by Judge Swinford in

favor of the defendants goes to the merits of the case and

8a

operates as an effective bar to this action. See Brachett

v. Universal Life Ins. Co., 519 F.2d 1072 (5th Cir. 1975) ;

Sopp v. Gehrlein, 236 F.Supp. 823 (W.D. Pa. 1964) .

An order in conformity with this Memoranduin Opinion

will be entered this date.

This 5 day of October, 1977.

/s/ EUGENE E. SILER, JR.,

JUDGE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

77-1716

EDDIE THOMPSON, JR.,

Plaintiff-Appellant,

vs.

COVINGTON HOUSING DEVELOPMENT,

Defendant,

JOSEPH CONDIT and JUNE HEDRICK,

Defendants-Appellees.

ORDER

(Filed September 18, 1978)

BEFORE: WEICK, CELEBREZZE and KEITH, Circuit

Judges.

9a

This appeal, perfected from an order of the district

court dismissing this civil rights action against only two

of the three named defendants, has been assigned to a

panel pursuant to Rule 9(a), Rules of the Sixth Circuit.

It appearing that there is no final appealable order and

that this Court is without jurisdiction to consider the

present appeal, William B. Tanner Co., Inc. v. United

States, 575 F.2d 101 (6th Cir. 1978); Moody v. Kapica,

548 F.2d 133 (6th Cir. 1976),

It is ORDERED that the appeal be and it is hereby

dismissed. Rule 9(b) (1), Rules of the Sixth Circuit.

ENTERED BY ORDER OF THE COURT

/s/ JOHN P. HEHMAN,

Clerk

Issued as Mandate: October 31, 1978

COSTS: NONE

[CERTIFICATION OMITTED]