Petition — British Airways Board v. Boeing Co.

EY

FEB

|

In THE

Supreme Court of the United States

OcTOBER Ee 1978

No. 8 ait & ] 6§

British Arrways Boarp,

Petitioner,

Ve

Tue Boerne Company,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Grorce N. TompxIns, JR.

Counsel for Petitioner

British Airways Board

1251 Avenue of the Americas

New York, New York 10020

east, 0, j

LED’

5 1979

gr |

|_M: CHAEL § RODAK, JR., CLERK

ao.

Opinions Below .......

Jurisdiction Sihdnains

Questions Presented ..

Statutory Provisions

Statement of the Case ....

TABLE OF CONTENTS

A. The Facts Cee seanese

B. Proceedings in the Courts Below .......................-

Reasons for Granting the Writ ...

hi

2.

Ww

1. The District Court ................

2. The Court of Appeals

The courts below misapplied the summary judg-

ment rule in deciding disputed issues of fact

concerning liability and causation rather than

limiting their function to the determination that

there were genuine issues requiring a trial ......

Even the incomplete discovery record before

the district court disclosed that there were

genuine issues of material fact precluding the

granting of summary judgment dismissing the

action .......... ES

Summary judgment is inappropriate where dis-

covery proceedings as to the issues involved

are in process and incomplete ............................

PAGE

10

12

14

16

PAGE

4. A court has no discretion to grant summary

judgment where the standards set forth in Rule

56(c) have not been met regardless of the tech-

nical failure to file an affidavit pursuant to Rule

ED | csidiben cibvaavnccainbogininecah atatscadsieeen hes divaicinth coasts 25

5. The burden of the moving party cannot be satis-

fied where there is the possibility that further

discovery could establish genuine issues of

material fact sufficient to defeat the summary

SURI MIO sstctcpdsesiseincicasetiieipscnch sa ndinaadicinin 29

6. The district court mistakenly concluded that be-

cause both British Airways and Boeing moved

for summary judgment, a judgment in favor

of one was required .................-..-.+-+- 29

AMIDA IER PIRIIE OT Mec ear . &

Oertificate of Service .................. A EO AD Ti . 33

TaBLE oF AUTHORITIES

Cases:

American Airlines, Inc. v. United States, 418 F.2d 180

(5th Cir. 1969) 21 n.9

American Manufacturers Mutual Insurance Co. v.

American Broadcasting-Paramount Theatres, Inc.,

388 F.2d 272 (2d Cir. 19679 .... ENC IES 15

Arney v. United States, 479 F.2d 653 (9th Cir. 1973)..15, 22

Berguido v. Eastern Air Lines, Inc., 317 F.2d 628 (3d

Cir.), cert. denied, 375 U.S. 895 (1963) 0.0... 21 n.9

Brawner v. Pearl Assurance Co., 267 F.2d 45 (9th Cir.

1958) ..

iil

PAGE

British Airways Board v. The Boeing Co., 585 F.2d

946 (9th Cir. 1978) ...... ; _... passim

Carter v. Stanton, 405 U.S. 669 (1972) .......-2..2..--.eeseseee 14

Complaint of American Export Lines, Inc., 73 F.R.D.

Se is le FF attr erntinsnieniaiees 21n.9

Eagle v. Louisiana & Southern Life Insurance Co.,

464 F.2d 607 (10th Cir. 1972) .............. sion 30

Fidelity & Casualty Co. v. Frank, 227 F.Supp. 948 (D.

A a ninianinvai 21 n.9

First National Bank v. Cities Service Co., 391 U.S.

253 (1968) ......... cichaebnnies 14, 23

Fountain vy. Filson, 336 U.S. 681 (1949) .........-........-..-- 14

Harris v. Pate, 440 F.2d 315 (7th Cir. 1971) ................ 15

Jacobson v. Maryland Casualty Co., 336 F.2d 72 (8th

Cir. 1964), cert. denied, 379 U.S. 964 (1965) ....30, 31 n.12

LewRon Television, Inc. v. D.H. Overmyer Leasing

Co., 401 F.2d 689 (4th Cir. 1968), cert. denied, 393

Tek. ee I eiiaicncsccoermraroteacenccinhatcinrincntinns 31 n.12

Littlejohn v. Shell Ow Co., 483 F.2d 1140 (5th Cir.),

cert. denied, 414 U.S. 1116 (1973) ....................... 25

Lyons v. Board of Education, 523 F.2d 340 (8th Cir.

RT inc aeiinncesctiennintinnneeinpeintanreanneinilininaninemenete 29

Pacific Fruit Express Co. v. Akron, C. € Y. R. Co.,

524 F.2d 1025 (9th Cir. 1975), cert. denied, 424 US.

Re aera daboiaccoeiaces asec rain cprestncpcnciciennctnaieatninnneiioen 28

Pioneer National Title Insurance Co. v. American

Casualty Co., 459 F.2d 963 (5th Cir. 1972) .......... 31 n.12

iv

PAGE

Poller v. Columbia Broadcasting System, 368 U.S. 464

CRUD. nccicsuecnstednspi sie 14, 29

Rains v. Cascade Industries, Inc., 402 F.2d 241 (3d

Cie. DUD anceisinincnccecicili enna 31

Rodway v. United States Department of Agriculture,

482 F.2d 722 (D.C. Cir. 1973) ................. 15

Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620

CODED): ciciiccetincintciiciiaeeaaaaane ; 14

Soria v. Oxnard School District Board of Trustees,

488 F.2d 579 (9th Cir. 1973), cert. denied, 416 U.S.

SOR (OBR6). cccnciiccccceaeee 15

Union Insurance Society of Canton, Ltd. v. William

Gluckin & Co., 353 F.2d 946 (2d Cir. 1965) ............ 31 n.12

United States v. Bissett-Berman Corp., 481 F.2d 764

to Et ae: | ae ni 15

Vickery v. Fisher Governor Co., 417 F.2d 466 (9th

| pernines, HS 15

Whitaker v. Coleman, 115 F.2d 305 (5th Cir. 1941) ... 27

Statutes and Other Authorities:

% USC (10D) 20 : 2

28 U.S.C. § 1404 ................... ae oe ats 6

Federal Aviation Act §701(e) (1958), 49 U.S.C.

© TORRTOD. eecmicoticceee 21 n.9

rea, &. Uw. ©. eee passim

TO eee ewww wen wew ee nseee

Vv

PAGE

Transportation Safety Act ¢ 304(c) (1974), 49 U.S.C.

IN i chisliencscintipesiaecksonmeiansetananiiocainces aia ia

6 Moore’s Feperat Practice { 56.17[(42], § 56.15[5],

kei aa ncnesipatnncesciiiineadtinleinianiieninnsionnennmemniete 22, 23

Wright & Miller, Federal Practice and Procedure:

I Ne I PO cides ieccsnscisesenyhennareanepsivtveronenins 22, 26, 27

IN THE

Supreme Court of the United States

OctosEr TERM, 1978

BOOG. Siccdicies

British Arrways Boarp,

Petitioner,

v.

Tue Borrne Company,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

British Airways Board’ prays that a writ of certiorari

issue to review the judgment of the United States Court

of Appeals for the Ninth Cireuit entered in this case on

November 8, 1978.

Opinions Below

The opinion of the Court of Appeals is reported at 585

F.2d 946 (9th Cir. 1978) and is printed in the Appendix

to this Petition at la.

The order of the district court, granting summary judg-

ment dismissing the negligence, strict tort liability and

breach of warranty complaint in this products liability

action is not reported, either officially or unofficially.

Neither is the order of the district court denying recon-

sideration. They are printed in the Appendix at 16a and

18a, respectively.

1 Hereinafter referred to either as Petitioner or British Airways.

Jurisdiction

The judgment of the Court of Appeals was entered on

November 8, 1978. 585 F.2d 946 (9th Cir. 1978); Appen-

dix la. The jurisdiction of the Court is invoked under 28

U.S.C. §1254(1).

Questions Presented

This case involves a negligence, strict tort liability and

breach of warranty action brought by Petitioner against

Respondent, The Boeing Company,’ to recover damages

for the loss of a Boeing 707 jet aircraft which crashed on

March 5, 1966 in Japan.

After completion of certain preliminary and limited

discovery proceedings, British Airways moved for partial

summary judgment on the issue of liability with respect

only to the strict tort liability claim asserted in the com-

plaint. In opposing the motion, Boeing filed a cross-motion

for summary judgment dismissing the complaint in its

entirety and argued, upon the basis of certain uncom-

pleted and ongoing discovery proceedings, that the aircraft

was not defective, either in design or manufacture and

that the accident, in any event, was not caused by any

fault on the part of Boeing.

Extensive documentary evidence, depositions and briefs

were filed both by British Airways and Boeing in support

of their respective summary judgment motions and in

opposition to the other’s motion.’ At the time of oral

2 Hereinafter referred to as Boeing.

*The motion papers and supporting memoranda of law, sum-

marizing the evidence on the liability issues before the district

court when the motions were heard and decided, are printed in

full in the Appendix commencing at 40a.

3

argument before the district court on these motions, dis-

covery as to liability and causation was incomplete and

the court was so advised by counsel for British Airways.‘

With the case in this posture, the district court made

critical findings of fact as to the defective nature of the

aircraft and causation, denied British Airways’ motion

for partial summary judgment, granted Boeing’s motion

and dismissed the entire complaint, The Court of Appeals

affirmed.

Therefore, the questions presented for review are:

1. Whether summary judgment dismissing a negligence,

strict tort liability and breach of warranty action is prop-

erly granted where the court decides disputed issues of

material fact as to the defective nature of the product and

causation?

2. Whether summary judgment dismissing a negligence,

strict tort liability and breach of warranty action is appro-

priate where discovery proceedings on the liability issues

are incomplete and substantial evidence of same is pecu-

liarly within the knowledge and possession of the party

seeking summary judgment?

3. Whether summary judgment dismissing an action

is proper where the district court is aware, at the time the

motion is considered, that critical discovery on the liability

issues is incomplete although no technical affidavit is filed

pursuant to Rule 56(f) of the Federal Rules of Civil Pro-

cedure?

4. Whether the pleadings, depositions, answers to inter-

rogatories and admissions on file, together with the affi-

4 Appendix 2Za-39a.

4

davits, showed that there was no genuine issue as to any

material fact on the issue of liability and that Boeing was

entitled to judgment as a matter of law dismissing the

negligence, strict tort liability and breach of warrauty

action?

Statutory Provisions

Federal Rule of Civil Procedure 56

Summary Judgment

(c) Motion and Proceedings Thereon. The motion

shall be served at least 10 days before the time fixed

for the hearing. The adverse party prior to the day

of hearing may serve opposing affidavits. The judg-

ment sought shall be rendered forthwith if the plead-

ings, depositions, answers to interrogatories, and ad-

missions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material

fact and that the moving party is entitled to a judg-

ment as a matter of law. A summary judgment, inter-

locutory in character, may be rendered on the issue

of liability alone although there is a genuine issue as

to the amount of damages.

Fep. R. Crv. P. 56(c).

(f{) When Affidavits are Unavailable. Should it ap-

pear from the affidavits of a party opposing the motion

that he cannot for reasons stated present by affidavit

facts essential to justify his opposition, the court may

refuse the application for judgment or may order a

continuance to permit affidavits to be obtained or depo-

5)

sitions to be taken or discovery to be had or may make

such other order as is just.

Fev. R. Crv. P. 56(f).

Statement of the Case

A. The Facts.

On March 5, 1966, while on a regularly scheduled passen-

ger flight from Tokyo to Hong Kong, a Boeing 707 jet

aircraft, owned and operated by British Airways, broke up

in flight and crashed in several pieces in the vicinity of

Mount Fujiyama, Japan. All passengers and crew mem-

bers on board were killed in the crash.

Following the accident, British Airways and Boeing

agreed to defer the bringing of any action for damages

for the loss of the aircraft or its use, until after the last

passenger, crew or property damage claim had finally

been resolved and further agreed to forego any discovery,

inter sese, in litigation involving any such claims, except

for purely defensive purposes. This action, therefore, was

not commenced until 1973. The complaint seeks damages

for the loss of the aircraft and consequential damages in-

cluding loss of use. Liability in the complaint is alleged

upon the basis of negligent design and manufacture of the

Boeing 707 jet aircraft, strict tort liability and breach of

express and implied warranty.

The action originally was commenced in the Southern

District of New York. A protective action subsequently

was commenced in the Central District of California in

view of the assertion by Boeing of a statute of limitations

defense in the New York action.

6

Prior to answer in the California action, Boeing moved

for an order transferring the action to the Western Dis-

trict of Washington pursuant to 28 U.S.C. §1404. This

motion was granted in April, 1974. The New York action

also was ordered transferred to the Western District of

Washington pursuant to 28 U.S.C. §1404 in May, 1974.

B. Proceedings in the Courts Below.

1, The District Court.

British Airways initiated discuvery proceedings in the

district court by addressing written interrogatories to Boe-

ing in September, 1974. The answers of Boeing were re-

ceived in March, 1975.

At a preliminary pre-trial conference in November, 1974,

Boeing requested the district court to postpone until Janu-

ary, 1975 the deposition of a former Boeing employee,

Morgan, who had been subpoenaed by British Airways.

This request was granted. Also at this conference, British

Airways and Boeing indicated that liability discovery

could be completed within a year and, accordingly, a sec-

ond pre-trial conference was scheduled for September,

1975.

The Morgan deposition commenced in January, 1975.

Morgan refused to answer numerous questions concerning

his testimony in prior litigation, given while he was em-

ployed by Boeing, involving a similar crash of the military

version of the 707 aircraft known as the KC-135 jet air-

craft. The deposition was adjourned and British Airways

moved for an order compelling Morgan to read his prior

testimony and answer questions relating to same. The

motion was heerd by the district court in April, 1975 but

was never decided.

7

At a conference before the district court in April, 1975,

counsel for Boeing advised that Boeing was interested in

considering further the settlement of the case and re-

quested that all discovery, including the resumption of

the interrupted Morgan deposition, be stayed pending set-

tlement evaluation of the case by Boeing. In view of this,

British Airways and Boeing, with the approval of the

district court, agreed to stay all aspects of the litigation

until July, 1975. In July, Boeing advised that it had not

yet completed its settlement evaluation and the stay of

discovery was continued by agreement until August, 1975.

At a pre-trial conference on September 29, 1975, Boeing

advised that no settlement offer would be made. A trial

date of November 8, 1976 was then set by the district

court with discovery to be completed in advance of that

date. Thereafter, a schedule for the depositions of Boeing

and British Airways personnel was agreed upon among

counsel. The depositions of British Airways personnel

were scheduled first, to commence in London in July, 1976.

The depositions of Boeing personnel were to follow.

In May, 1976, British Airways moved for partial sum-

mary judgment on the issue of liability but only with

respect to the strict tort liability claim. The motion was

based upon certain documentary evidence and testimony

of Boeing personnel in the related passenger and crew

litigation arising out of the accident. British Airways

argued that this evidence established that the fin terminal

attachment fitting® of the aircraft was defectively designed

and manufactured and that this was the proximate cause

of the accident. British Airways also argued that the ad-

mitted cracks in the fin terminal attachment fitting were

due to design and manufacturing défects and that this

5 The part which holds the tai! (the vertical stabilizer or fin)

to the fuselage of the aircraft.

8

caused the tail of the aircraft to separate in flight, result-

ing in the accident. Appendix 47a-48a,

By agreement among counsel, Boeing responded to the

motion in August 1976 after some of the previously sched-

uled depositions of former and present British Airways

personnel had been taken in London in July, 1976. In

opposing the motion, Boeing cross-moved for summary

judgment dismissing the entire complaint. Boeing argued

that there was no design or manufacturing defect and

that the accident was due to the abnormally severe turbu-

lence encountered which subjected the aircraft to stresses

beyond its design limits. Appendix 273a. Boeing also

argued that the aircraft encountered this turbulence be-

cause of the negligence of the pilot in flying at a danger-

ously low altitude in the vicinity of Mount Fujiyama.

Appendix 281a.

On September 1, 1976, British Airways requested the

district court to adjourn the trial date to November 8, 1977

in order to permit the continuation and completion of all

outstanding and contemplated discovery. Boeing refused to

join in this request and the request was never passed upon

by the district court in view of the subsequent granting of

summary judgment dismissing the action.

Oral argument on the summary judgment motions was

heard by the district court on September 10, 1976. At this

time the following scheduled discovery items were outstand-

ing and not yet completed:

1. The interrupted Morgan deposition.

2. The previously scheduled depositions of Boeing

personnel which had not yet even commenced.

3. British Airways’ petition for Letters Rogatory

and a Commission to take depositions in Japan of

9

witnesses to the crash and investigators of the Jap-

anese Government.

4. British Airways’ further request for the produc-

tion of Boeing documents.

5. The completion of depositions of certain present

and former personnel of British Airways not available

during the previous London depositions,

On this state of the record, the district court, on Septem-

ber 23, 1976 granted the Boeing motion for summary judg-

ment dismissing the action as to all claims. In its Orver

on Summary JupcMentT Morrons, the district court erro-

neously stated that the “parties agree that there are no

material facts in dispute”. On this erroneous assumption,

the court then proceeded to find and conclude:

1. The probable cause of the accident in question

was abnormally severe Clear Air Turbulence which

imposed excessive loads on the aircraft beyond its

design limits.

2. Although there is undisputed evidence of some

fatigue failure in the fin attachment fittings on this

aircraft, as well as on other Boeing 707 aircraft,

which does not meet acceptable design standards, there

is no evidence indicating that the crash resulted from,

or was caused, in whole or in part, by such failure.

Instead, the evidence supports the finding of the Jap-

anese Civil Aeronautics Board accepted by the re-

sponsible officers of the plaintiff, as well as the defen-

dant, that cracks in the fin fittings were not an accident

cause factor.

10

3. Plaintiff has been unable to produce any evidence

that a contributing cause of the accident was a defect

in the aircraft.

Appendix 16a-17a.

A motion for reconsideration was denied. The district

court rejected Petitioner’s argument that summary judg-

ment dismissing the complaint was improper due to the

ongoing and uncompleted depositions and discovery pro-

ceedings, stating that British Airways had initiated the

“process of judicial review” by filing its motion for partial

summary judgment. Appendix 19a.

2. The Court of Appeals.

The Court of Appeals affirmed the decision of the dis-

trict court. While recognizing that British Airways and

Boeing had different theories as to the cause of the acci-

dent, the Court of Appeals nevertheless accepted entirely

the Boeing theory that the accident was caused by severe

clear air turbulence which subjected the aircraft to stresses

beyond its design strength. Appendix 6a-12a; 585 F.2d at

951-4.

The court below held that British Airways had failed

to meet the burden of presenting specific facts showing

that a contradiction of the evidence (relied upon by Boeing

in support of its theory as to causation) was possible.

Appendix 6a-9a; 585 F.2d at 951-2. The opinion of the

Court of Appeals discloses an initial acceptance of the

Boeing theory of the accident and a recognition only of

that evidence which would support the Boeing theory and

preclude any conflict requiring a trial by jury. Appendix

6a-12a; 585 F.2d at 951-4.

The Court of Appeals also rejected the argument of

British Airways that summary judgment was clearly in-

1]

appropriate in view of the uncompleted discovery proceed-

ings. Appendix 12a-15a; 585 F.2d at 954-5. This appears

to have been based upon the erroneous conclusion by the

Court of Appeals that British Airways raised the argu-

ment with respect to the uncompleted discovery proceed-

ings for the first time on appeal. Appendix 13a; 585

F.2d at 954. Such is not the case. The district court was

fully aware at the time that the motions for summary

judgment were argued that substantial and significant dis-

covery proceedings were not yet completed and were pend-

ing. In fact, British Airways had asked for an adjournment

of the trial date for one year so that the discovery pro-

ceedings could be completed and this request was made

to the district court before the oral argument on the sum-

mary judgment motions. Additionally, it was clear from

remarks by counsel for British Airways that the Boeing

motion was premature due to the uncompleted state of

discovery proceedings on the issue of liability. Appendix

36a-38a.

In summary, the Court of Appeals held that British Air-

ways had not presented any evidence “on which the trier

of fact could legally support its theory of the case” and

rejected the argument of British Airways that summary

judgment should not have been granted while discovery

proceedings were pending with respect to the very liability

issues decided by the district court.

The combined effect of the decisions of the courts below

is that the very discovery proceedings which would have

developed the evidence to rebut the Boeing theory of the

accident, which evidence was peculiarly within the pos-

session and knowledge of Boeing and non-parties, have

been truncated, Upon the basis of an incomplete discovery

record, the district court, affirmed by the Court of Appeals,

has assumed the role of trier of the fact and has resolved

the issues of liability in favor of Boeing.

Reasons for Granting the Writ

This case raises important questions concerning the

proper application of the summary judgment rule* in a

products liability case in view of the severity of the sum-

mary judgment remedy which, if misapplied, wrongfully

deprives a litigant of the right to a trial. The courts below

have usurped the jury function and effectively have denied

British Airways of its right to trial by jury upon the basis

of a full and complete record following the completion of

discovery proceedings.

In granting summary judgment dismissing the action,

the courts below have made findings of ultimate fact as

to the liability issues in this case, in the face of conflicting

theories and evidence as to the existence of a defect in the

aircraft and causation.

Even if the evidence before the district court had not

demonstrated a genuine issue of material fact on the issues

of liability, the pending discovery proceedings should have

been completed before the summary judgment motion of

Boeing was considered, particularly since the critical evi-

dence concerning the defective design of the aircraft and

causation was within the peculiar knowledge and posses-

sion of Boeing, the party seeking summary judgment. In

the face of clear evidence before the district court that

substantial discovery proceedings were scheduled and in-

complete, the technical absence of an affidavit as envisaged

by Rule 56(f) does not warrant the district court grant-

ing summary judgment dismissing the action.

The action was not dismissed upon any recognizable or

proper legal ground. The action was dismissed because

6 Fep. R. Crv. P. 56.

13

the district court, affirmed by the Court of Appeals, made

findings and conclusions of ultimate fact concerning the

cause of the accident. Discovery on the very issues of

liability before the district court was cut off in the middle

of the proceedings. British Airways effectively was de-

nied access to the evidence which would have served to

establish triable issues of fact as to causation and li-

ability for this accident. This evidence not only was within

the peculiar knowledge and possession of Boeing, the party

seeking summary judgment, but also was within the knowi-

edge and possession of non-party witnesses. The district

court was fully aware of the uncompleted discovery pro-

ceedings initiated by British Airways which were pend-

ing at the time summary judgment was granted dismiss-

ing the action. The courts below simply accepted Boeing’s

theory of the case and interpreted all of the evidence

available to support that theory.

The courts below have usurped the function of the jury

in making findings of fact as to the issues of liability and

causation. Petitioner, British Airways, has been denied

its right to trial by jury in this case. Moreover, peti-

tioner has been denied any opportunity to develop and

demonstrate, through the discovery processes, that there

are indeed triable issues of fact as to liability and causa-

tion in this case.

The granting of summary judgment by the district court

and affirmance by the Court of Appeals constitute a clear

case of improper application of the summary judgment

rule as enunciated by the Court. Certiorari should be

granted in order to correct this misapplication of the

severe summary judgment remedy by the courts below.

14

1. The courts below misapplied the summary judgment rule

in deciding disputed issues of fact concerning liability and

causation rather than limiting their function to the de-

termination that there were genuine issues requiring a trial.

Rule 56(c) of the Federal Rules of Civi! Procedure

provides that summary judgment may be granted only

where there are no genuine issues of material fact and

the moving party is entitled to judgment as a matter of

law.

In Sartor v. Askansas Natural Gas Corp., 321 U.S. 620

(1944), the Court enunciated the principles to be applied

in ruling on a motion for summary judgment:

... Rule 56 authorizes summary judgment only where

the moving party is entitled to judgment as a matter

of law, where it is quite clear what the truth is, that

no genuine issue remains for trial, and that the pur-

pose of the rule is not to cut litigants off from their

right of trial by jury if they really have issues to try.

321 U.S. at 627. See also, Poller v. Columbia Broadcasting

System, 368 U.S. 464, 468 (1962).

The district court has no authority to grant summary

judgment when the standards set forth in Rule 56(c) have

not clearly been met and a motion for summary judgment

must be denied if there exists a triable issue of material

fact. Fountain v. Filson, 336 U.S. 681 (1949); see also,

Carter v. Stanton, 405 U.S. 669 (1972).

All that is required for a material fact to be in dispute

is that sufficient evidence supporting the claimed factual

dispute be shown so as to require a jury to resolve the

parties’ differing versions of the truth at a trial. First

National Bank v. Cities Services Co., 391 U.S. 253, 289

(1968).

15

It is not the function of the court on a motion for sum-

mary judgment to decide disputed issues of fact. Soria v.

Oxnard School District Board of Trustees, 488 F.2d 579

(9th Cir. 1973), cert. denied, 416 U.S. 951 (1974); United

States v. Bissett-Berman Corp., 481 F.2d 764 (9th Cir.

1973) ; Vickery v. Fisher Governor Co., 417 F.2d 466 (9th

Cir. 1969).

A court may not grant summary judgment merely be-

cause the facts offered by the moving party in support of

the motion are more plausible than those offered by the

party opposing the motion, or because the court believes

that the moving party is more likely to prevail at trial.

Rodway v. United States Department of Agriculture, 482

F.2d 722 (D.C. Cir. 1973); Harris v. Pate, 440 F.2d 315

(7th Cir. 1971); American Manufacturers Mutual Insur-

ance Co. v. American Broadcasting-Paramount Theatres,

Inc., 388 F.2d 272 (2d Cir. 1967).

The district court exceeded its proper function by

deciding the disputed issues of material fact as to liability

and causation. Where there exist factual issues relating to

liability and causation, summary judgment is particularly

inappropriate. Arney v. United States, 479 F.2d 653 (9th

Cir. 1973).

The district court found that “the probable cause of the

accident in question was abnormally severe Clear Air

Turbulence which imposed excessive loads on the aircraft

beyond its design limits.” Appendix 16a. This factual find-

ing was made in spite of the fact that the court recognized

that “there is undisputed evidence of some fatigue fail-

ures in the fin attachment fittings on this aircraft...

which does not meet acceptable design standards.” Ap-

pendix 16a. (Emphasis added). However, the district

court disregarded this evidence because, after weighing

16

all of the evidence presented, the court concluded that

“the evidence supports the finding ... that cracks in the

fin fittings were not an accident cause factor.” Appendix

17a.

The basic error of the district court, therefore, was in

proceeding to decide the factual issues relating to liability

and causation rather than limiting itself to the determina-

tion that there were genuine issues of material fact to be

resolved at trial.

2. Even the incomplete discovery record before the district

court disclosed that there were genuine issues of material

fact precluding the granting of summary judgment dis-

missing the action.

The following genuine issues of material fact were dis-

closed by the affidavits, depositions and other documentary

evidence presented by British Airways and Boeing in con-

nection with the summary judgment motions:

1. Whether the aircraft had inherent design or manu-

facturing defects when it was sold to British Airways by

Boeing.

2. Whether the fin terminal attachment fittings of the

aircraft were defectively designed or manufactured.

3. Whether the fin terminal attachment fittings were

adequate to hold the vertical fin to the aircraft or were

underdesigned.

4. Whether the admitted fatigue cracks in the fin ter-

minal attachment fittings caused the accident or contributed

thereto.

17

5. Whether abnormally severe clear air turbulence

existed near Mt. Fuji at the time of the disintegration

of the aircraft.

6. Whether any existing severe clear air turbulence ex-

ceeded the design strength of the aircraft, thereby causing

or contributing to the crash.

7. Whether the design strength of the aircraft was

adequate to withstand the turbulence encountered, if any.

8. Whether the crack in the fin terminal attachment

fitting was a proximate cause of the crash.

Appendix 46a-122a; 273a-311a.

Post-accident tests conducted by Boeing itself showed

conclusively that the right rear fin terminal attachment

fitting of the aircraft was 40% below the designed ulti-

mate safety factor.’ Appendix 76a. Further, James A.

Ramsey, a Boeing employee, testified on deposition that

this design defect existed in the aircraft as originally manu-

factured and delivered to British Airways. Appendix 69a.

The limited deposition testimony of Richard M. Morgan,

a former Boeing employee, established that a crack in the

fin terminal attachment fitting can lead to catastrophic

failure of the aircraft. Appendix 59a-60a.

The district court was compelled to admit, based upon

the documentary evidence presented, that there was un-

disputed evidence that the fin attachment fittings of the

aircraft were structurally defective and underdesigned.

However, in spite of the persuasive and substantial evi-

7In spite of this finding, Boeing concluded that these cracks

were not an accident cause factor. This self-serving conclusion

was relied upon by both the district court and the Court of Ap-

peals in granting summary judgment to Boeing.

18

dence in the record supporting petitioner’s allegations of

causation and in direct contravention of those principles

which govern the remedy of summary judgment, the dis-

trict court found that “the evidence supports the finding

.. . that cracks in the fin fittings were not an accident

cause factor.” Appendix 16a-17a.

The district court further fownd, accepting Boeing’s

theory of causation, that the probable cause of the acci-

dent was clear air turbulence of unprecedented severity

which caused the aircraft to disintegrate in flight. Boeing’s

contention that the sole cause of the accident was ab-

normally severe clear air turbulence was not supported

by any admissible meterological evidence. Boeing and the

district court relied solely upon the speculative conclu-

sions of the Japanese Civil Aeronautics Board in its offi-

cial Report® on the investigation of the accident:

a) Results of Investigation

G-APFE was making a normal flight towards Mount

Fuji till immediately before the accident in such clear

weather that Mount Fuji could be seen from Tokyo.

The evidence provided by the aircraft wreckage, the

injuries of the victims and the evidence from the

colour film suggests that the aircraft suddenly encoun-

tered abnormally severe gust loads exceeding the de-

sign limit load . . . and disintegrated in the air in

very short period of time.

Although it was wmpossible to forecast the existence

... of turbulence sufficiently severe to destroy the air-

craft and the investigation could not discover evidence

which could verify meteorologically the existence of

8 Hereinafter referred to as JCAB Report.

19

such turbulence, it cannot be denied that turbulence

might have become extremely severe, if it 1s assumed

that a strong mountain wave system was present in

the lee of Mount Fuji.

b) Probable Cause.

The probable cause of the accident is that the aircraft

suddenly encountered abnormally severe turbulence

... Which imposed a gust load considerably in excess

of the design limit.

Appendix 133a-134a. (Emphasis added.)

It was the position of British Airways that the meteoro-

logical conditions near Mt. Fuji were normal on the day

of the accident and in the event that some turbulence did

exist, it was not of such severity as to break up a Boeing

707 in norma] flight in clear weather! Captain Thomas

Nisbet, Air Safety Advisor for British Airways, testified

on deposition that he had never heard of an aircraft such

as a Boeing 707, or any other comparable commercial air-

craft, breaking up in mid-air solely as a result of meteoro-

logical conditions. Appendix 354a. Ernest Chambers, the

British Airways meteorologist who was familiar with the

meteorological conditions at the time and place of the

accident, testified on deposition:

Q. Do you recall whether you agreed or disagreed

with the final Japanese Report as pertaining to

meteorology?

A. Yes, I recall that I was very unhappy about the

Report as such.

Q. Did you express that unhappiness to the Japanese

at any time prior to or after the Report was

issued?

A. I don’t think I expressed it officially.

ee Fe

> ©

>

Po

20

Unofficially did you?

Unofficially.

In what form?

I merely said I could not believe it.

What aspects could you not believe from the

Japanese Report?

Simply the magnitude of the sudden onset of

turbulence.

What did you believe with regard to the magni-

tude; less or more than the Japanese did?

I simply could not believe that it could have hap-

pened.

That what could have happened?

That a gust of that magnitude could have hap-

pened, instantaneously.

Of what magnitude?

A magnitude sufficient to break up the airplane.

Why did you not believe that a gust of that magni-

tude could have existed, descending Mount Fuji,

at the time of the accident?

By my analysis of the situation there seemed to

be nothing extraordinary about the flow at the

time. :

Nothing extraordinary?

No.

Did you ever put in writing your apparent dis-

belief of the Japanese conclusions regarding mete-

orology to BOAC or anyone else?

21

A. The only thing in writing that I can remember

was after my initial examination of the data when

I cabled back “Very severe turbulence unlikely”.

Q. You cabled back from Tokyo?

A. Yes.

Deposition of Ernest Chambers, pp. 30:A-31:E. (Em-

phasis added.)

Although Chamber’s deposition had been taken in July,

1976 in London, the transcript thereof was not available

when the summary judgment motions were considered.

The district court refused to await the transcript before

ruling and rejected it when subsequently filed in connec-

tion with the motion for reconsideration. Appendix 20a.

The Court of Appeals held that the district court had not

abused its discretion in so treating the Chambers deposi-

tion. Appendix lla; 585 F.2d at 953.

Thus, the district court erroneously decided the factual

issue of causation, relying upon the speculative conclusions

of the JCAB Report.’ Appendix 16a-17a.

Summary judgment is particularly inappropriate in a

negligence case such as this because issues of negligence

and causation are rarely so undisputed that the matter

may properly be removed from the jury. 6 Moorr’s Frp-

® The JCAB Report and its opinions and conclusions would not

be admissible at trial and certainly should not be the foundation

for granting summary judgment. Fed. R. Evid. 801(c), 802, 803(8)

(ec); Federal Aviation Act § 701(e) (1958), 49 U.S.C. § 1441(e) ;

Transportation Safety Act § 304(c) (1974), 49 U.S.C. § 1903(e) ;

American Airlines, Inc. v. United States, 418 F.2d 180 (5th Cir.

1969); Berguido v. Eastern Air Lines, Inc., 317 F.2d 628 (3d

Cir.), cert. denied, 375 U.S. 895 (1963); Complaint of American

Export Lines, Inc., 73 F.R.D. 454 (S.D.N.Y. 1977); Fidelity &

Casualty Co. v. Frank, 227 F. Supp. 948 (D. Conn. 1964).

22

ERAL Practice, 56.17[42] (1976); Waicut & Mutter, Fep-

ERAL Practice AND Procepure: Civil §2729 (1973).

As was stated by the Court of Appeals in Arney v. United

States, 479 F.2d 653 (Yth Cir. 1973), even if the facts are

undisputed in a negligence case, summary judgment is in-

appropriate if all “reasonable men. .. would not draw the

inference and conclusion therefrom of non-negligence.” 479

F.2d at 660.

The Court of Appeals evidently was so persuaded by

Boeing’s argument that the aircraft was caused to disin-

tegrate in level flight due to abnormally severe clear air

turbulence, that it stated that even if the fin attachment

fitting were defective and caused the fin to separate in

flight, there would have been an accident anyway due to

the turbulence which the aircraft encountered.

If the CAT exceeded the design strength of the plane,

there would have been a major air disaster whether

or not the fin attachment fitting was defective.

Appendix 9a-10a; 585 F.2d at 952.

Therefore, the court held, a factual dispute regarding

the defective fitting was immaterial. Appendix 10a; 585

F.2d at 952-3. The court improperly determined that if

there existed abnormally severe clear air turbulence ex-

ceeding the design strength of the aircraft, any negligence

of Boeing with respect to the defective fin attachment fit-

ting was irrelevant. In any event, a determination of

whether the aecident would have occurred except for the

negligence of Boeing, was an issue for a jury to decide.

Finally, however, the basic error of the courts below

was in deciding the factual issues in dispute in the face

of conflicting evidence and inferences to be drawn there-

from which could support either theory of the accident.

23

A jury, upon the basis of a full evidentiary record, and

not the courts below, should make the determination.

3. Summary judgment is inappropriate where discovery pro-

ceedings as to the issues involved are in process and

incomplete.

The party opposing a summary judgment motion must

be given the opportunity to conduct discovery relevant to

the claimed factual dispute and necessary to defeat the

motion. It is manifestly improper for a court to apply the

drastic remedy of summary judgment where the opposing

party has not been afforded such opportunity. First Na-

tional Bank v. Cities Services Co., 391 U.S. 253 (1968).

In this regard, Professor Moore has stated:

“[A]lecess to proof is a factor to be considered: (a) in

ruling on a motion for summary judgment; or (b) in

determining whether an opposing party has shown

sufficient reasons why he cannot then present facts

essential to justify his opposition so that, pursuant to

Rule 56(f), ‘the court may refuse the application for

judgment or may order a continuance ... .?” (Empha-

sis added.)

6 Moore’s Feperat Practice 956.15[5] at 56-558 (1976).

At the time summary judgment dismissing the action

was granted in this case, there was significant and substan-

tial outstanding uncompleted discovery with respect to the

claimed factual dispute as to liability and causation. The

scheduled depositions of Boeing personne] had not yet been

taken, a Petition for Letters Rogatory and a Commission

to take depositions in Japan of witnesses to the crash and

of the Japanese government investigators was pending in

the district court, there was outstanding a request by peti-

tioner for the production of certain Boeing documents and

24

the British Airways’ depositions were not completed. All

of this was known to the district court. In fact, even be-

fore the motion for summary judgment was orally argued,

petitioner asked the court to continue further the trial date

so that the outstanding discovery could be completed!

Appendix 37a-38a.

In spite of this significant uncompleted discovery, the

district court granted summary judgment dismissing the

action in its entirety. On a motion for reconsideration, the

court further held that there was no need for further dis-

covery with respect to the claimed factual dispute since

petitioner had initiated the “process of judicial review”

with the filing of a motion for partial summary judgment

and had, thus, apparently waived its right and the need for

further discovery as to all claims. Appendix 19a.

Even if the district court doubted that additional dis-

covery would produce sufficient evidence of the claimed

factual dispute to defeat Boeing’s motion for summary

judgment, petitioner should have been afforded the op-

portunity to complete additional discovery to obtain the

evidence necessary to oppose Bocing’s motion. Petitioner

did not concede that it was impossible to improve the

record with respect to the claimed factual dispute. In

fact, counsel for petitioner emphasized at oral argument

before the district court on the summary judgment motions

that the record could be improved with additional dis-

covery. .

The plane broke up in the air, the fin failed first, and

we believe that the next statement, i.e. that the fatigue

cracks in the terminal fittings caused this fin to fall off

the aircraft and failed first is admitted by the Boeing

Company in their sworn testimony in prior litigation,

and we further submit, Your Honor, that this one

25

aspect will be further substantiated in the depositions

of these [Boeing] people in this litigation if there is

any further need to substantiate it.

Appendix 36a-37a.

It is improper for a court to grant summary judgment

at a time when the facts have not been fully developed.

Littlejohn v. Shell Oil Co., 483 F.2d 1140, 1145 (5th Cir.),

cert. denied, 414 U.S. 1116 (1973). If the opposing party

is not allowed to develop through discovery the evidence

which could serve to establish the claimed factual dispute,

clearly the facts have not been fully developed and the

granting of summary judgment is improper.

4. A court has no discretion to grant summary judgment

where the standards set forth in Rule 56(c) have not

been met regardless of the technical failure to file an

affidavit pursuant to Rule 56(f).

Petitioner argued in the court below that the grant of

summary judgment at a time when there was significant

outstanding and incomplete discovery constituted reversi-

ble error. The court failed to address the issue, holding

instead that because petitioner had not filed an affidavit

pursuant to Rule 56(f) of the Federal Rules of Civil Proce-

dure, requesting a continuance, further discovery was not

at issue.

The court stated:

At no point did it [petitioner] request the district

court to stay consideration of the summary judgment

motions pending completion of discovery. . . . The

airline can hardly argue at this late date that the

district court abused its discretion in ruling on the

summary judgment motion in light of the fact that

26

BOAC itself failed to pursue the procedural remedy

which the Federal Rules so clearly provided.

585 F.2d at 954; Appendix 13a-14a. (Emphasis added.)

Rule 56(f) provides:

Should it appear from the affidavits of a party op-

posing the motion that he cannot for reasons stated

present by affidavit facts essential to justify his op-

position, the court may refuse the application for

judgment or may order a continuance to permit aff-

davits to be obtained or depositions to be taken or

discovery to be had or may make such other order

as is just.

Fep. R. Crv. P. 56(f).

Rule 56(f) is designed to allow a party opposing a

motion for summary judgment to request a continuance

or denial of a summary judgment motion where the party

finds itself unable to present the necessary evidence to

defeat summary judgment because of inadequate or in-

complete discovery. It is designed to protect the party

opposing a motion for summary judgment and, therefore,

it is incongruous that it should be relied upon to prevent

a party from developing, through completion of pending

discovery, evidence that would defeat a summary judgment

motion.

A court can grant summary judgment only when the

standards set forth in Rule 56(c) have been met and must

deny the motion if there is a possibility that an issue re-

mains for trial. Wricut & Mier, Feperan Practice anp

ProcepurE: Civil §2728 (1973). Rule 56(f) does not alter,

in any way, the standards set forth in subdivision (c) of

Rule 56:

The district court has no discretion to enlarge its

power to grant summary judgment beyond the limits

27

prescribed by the rule. It may grant a Rule 56 mo-

tion only when the test set forth therein has been met

and must deny the motion as long as an issue remains

for trial.

Wricut & Mitier, Feperat Practice anpD Procepure: Civil

§2728 at 552 (1973).

Thus, it is clear that the district court had no discre-

tion to enter summary judgment when it was not war-

ranted under Rule 56(c), regardless of whether petitioner

had filed a technical affidavit pursuant to subdivision (f)

of the Rule with respect to the incomplete discovery pro-

ceedings. If the completion of the outstanding discovery

was required to fully develop the facts or to allow peti-

tioner the opportunity to improve the record, the district

court had no discretion to enter summary judgment. Rule

56(f) cannot be used to punish a party who fails to file

a technical affidavit under Rule 56(f) where the district

court is fully aware through other means that there is

substantial and incomplete discovery still to be had. As

was stated in Whitaker v. Coleman, 115 F.2d 305 (5th Cir.

1941) :

Summary judgment procedure is not a catch penny

contrivance to take unwary litigants into its toils and

deprive them of a trial, it is a liberal measure, liber-

ally designed for arriving at the truth. Its purpose

is not to cut litigants off from their right of trial

by jury if they really have evidence which they will

offer on a trial, it is to carefully test this out, in ad-

vance of trial by inquiring and determining whether

such evidence exists. Rule 56 is carefully drawn to

effectuate this purpose.

115 F.2d at 307.

28

It is clear from the decision of the Court of Appeals

that it never properly considered whether it was error

for the district court to grant summary judgment in a

negligence action where there was substantial uncom-

pleted discovery with respect to the claimed factual dis-

pute. This was improper, as a matter of law, since the

Court of Appeals was required, in reviewing the district

court’s order granting summary judgment, to apply the

same considerations as the district court in determining

whether the case was in the proper posture for the grant-

ing of summary judgment. Pacific Fruit Express Co. v.

Akron, C. & Y.R. Co., 524 F.2d 1025 (9th Cir. 1975), cert.

denied, 424 U.S. 911 (1976). The Court of Appeals, how-

ever, failed to consider whether the state of the record

was adequate for summary judgment determination in

light of the sharply disputed factual issues involved and

the substantial uncompleted discovery proceedings, of

which the district court was fully apprised, or if peti-

tioner should have been given the opportunity to improve

the record with respect to the opposition to the Boeing

motion through additional discovery, because petitioner

did not file an affidavit pursuant to Rule 56(f) of the

Federal Rules of Civil Procedure.

Not only was the record inadequate for summary judg-

ment adjudication in this strict tort liability, negligence and

breach of warranty action, but petitioner should have been

allowed to seek to improve the record regardless of its

failure to file an affidavit pursuant to Rule 56(f).

It is clear that the Court of Appeals ignored the state

of the record at the time summary judgment was entered

because of petitioner’s failure to file a 56(f) affidavit

and this has resulted in petitioner being deprived of its

right to a trial by jury.

29

5. The burden of the moving party cannot be satisfied where

there is the possibility that further discovery could estab-

lish genuine issues of material fact sufficient to defeat the

summary judgment motion.

Summary judgment is a drastic remedy and, therefore,

it should be invoked cautiously so as not to deprive any

litigants of the right to a trial where there exists a dispute

of facts between the parties. Poller v. Columbia Broad-

casting System, 368 U.S. 464 (1962).

It is the burden of the movant to establish without dis-

pute that it is entitled to summary judgment.

[W]e have repeatedly emphasized that summary judg-

ment is an extreme remedy, not to be employed unless

the movant has established his right to a judgment

with such clarity as to leave no room for controversy

and that the other party is not entitled to recovery

under any discernible circumstances....

Lyons v. Board of Education, 523 F.2d 340, 347 (8th Cir.

1975).

The moving party has “the burden of clearly establishing

the lack of any triable factual issue on a record that is

adequate for a decision of the legal question presented.” 6

Moore’s FeperaL Practice 956.15[6] at 56-601, citing Askew

v. Hargrave, 401 U.S. 476 (1971). It cannot be said that

the record is adequate for summary judgment determina-

tion where there is significant and substantial outstanding

discovery relating to material facts bearing on the very

issues before the court.

6. The district court mistakenly concluded that because both

British Airways and Boeing moved for summary judg-

ment, a judgment in favor of one was required.

Cross-motions for summary judgment do not justify the

granting of either motion unless one of the parties is en-

30

titled to summary judgment as a matter of law. Jacobson

v. Maryland Casualty Co., 336 F.2d 72 (8th Cir. 1964),

cert. denied, 379 U.S. 964 (1965); Eagle v. Louisiana &

Southern Life Insurance Co., 464 F.2d 607 (10th Cir. 1972).

As was stated in Brawner v. Pearl Assurance Co., 267 F.2d

45 (9th Cir. 1958).

[T]his Court is again confronted with the confusion

which follows the filing of motions for summary judg-

ment by plaintiff and defendant, respectively. Again it

is reiterated that such a situation does not parallel that

where both parties file motions for directed verdict.

In the latter instance, each party is held to agree that

there is no disputed question of fact and that the case

is to be decided on the principles of law. In contrast,

by definition, a summary judgment cannot be granted

if there be a disputed question of material fact. This

determination does not depend upon what either or

both parties may have thought about the matter.

267 F.2d at 46. (Emphasis added.)

The district court disregarded the above principles in

ruling on the motions before it. British Airways moved

for reconsideration upon the ground that the court had

erred in granting summary judgment dismissing the action

in that deposition and discovery proceedings were still un-

completed and the full transcripts of certain completed

depositions were not before the court, matters disregarded

by the court when the summary judgment was granted. The

district court denied the motion and stated that British

Airways had initiated the “process of judicial review”,)®

therefore, apparently obviating any consideration by the

court of whether there had been sufficient discovery by the

parties at the time the motions were heard.

10 Appendix 19a.

31

This, of course, is incorrect as a matter of law. Brawner

v. Pearl Assurance Co., 267 F.2d 45 (9th Cir. 1958).

The district court further demonstrated a lack of un-

derstanding that the mere filing of cross-motions for sum-

mary judgment does not eliminate or negate the presence

of material issues of fact. The court erroneously stated

that “the parties agree that there are no material facts

in dispute.” '' The district court apparently based this

erroneous assumption upon the fact that both parties

simultaneously were arguing, in support of their respec-

tive motions, that there was no genuine issue of fact even

though each had its own theory of liability and causation

with regard to the accident. The fact that cross-motions

for summary judgment have been filed does not establish

that the parties have agreed that there are no triable

issues of fact and that a trial is unnecessary, thereby

empowering the district court to enter judgment as it

sees fit.

Cross-motions are no more than a claim by each side

that it alone is entitled to summary judgment, and

the making of such inherently contradictory claims

does not constitute an agreement that if one is re-

jected the other is necessarily justified or that the

losing party waives judicial consideration and deter-

mination whether genuine issues of material fact

exist.

Rains v. Cascade Industries, Inc., 402 F.2d 241, 245 (3d Cir.

1968).??

11 Appendix 16a.

12 Accord, Pioneer Nat’l Title Ins. Co. v. American Cas. Co.,

459 F.2d 963 (5th Cir. 1972); LesRon Television, Inc. v. D. H.

Overmyer Leasing Co., 401 F.2d 689 (4th Cir. 1968), cert. denied,

393 U.S. 1083 (1969); Union Ins. Soc. of Canton, Ltd. v. Wil-

liam Gluckin & Co., 353 F.2d 946 (2d Cir. 1965); Jacobson v.

Maryland Cas. Co., 336 F.2d 72 (8th Cir. 1964), cert. denied, 379

U.S. 964 (1965).

32

CONCLUSION

For the foregoing reasons, it is respectfully submitted

that a writ of certiorari issue to review the judgment of

the United States Court of Appeals for the Ninth Circuit

in this case, as prayed herein.

/s/ Gzeorce N. Tompkins, Jr.

Grorce N. Tompxins, JR.

Counsel for Petitioner

British Airways Board

1251 Avenue of the Americas

New York, New York 10020

Connon & ForsytH

Grorce N. Tompxtins, JR.

KaTHERINE B. Posnzr

of Counsel

tab R danse eats «sala

i Bn ik tat

33

Certificate of Service

I hereby certify that I have, this 5th day of February,

1979, served the foregoing Petition for a Writ of Cer-

tiorary to the United States Court of Appeals for the

Ninth Circuit upon respondent by depositing same in a

United States mailbox at 1251 Avenue of the Americas,

New York, New York 10020, with first class postage pre-

paid to:

Perkins, Cole, Stone, Olsen & Williams

1900 Washington Building

Seattle, Washington 98101

Counsel for Respondent.

February 5, 1979

George N. Tompkins, Jr.

Counsel for Petitioner