Opposition — Parish v. Maryland & Virginia Milk Producers Ass'n

IN THE

Supreme Court of the United States

OcToBerR TERM, 1978

No. 78-1246

FraNK P. PartisH AND THEODORE FISHER PARISH,

Petitioners,

Ve

MARYLAND AND VIRGINIA MILK Propucers ASSOCIATION,

INC., ET AL.,

Respondents.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

BRIEF OF RESPONDENT MARYLAND AND VIRGINIA

MILK PRODUCERS ASSOCIATION, INC.

IN OPPOSITION TO PETITION FOR WRIT OF

Epwarp L. MERRIGAN

6000 Connecticut Avenue, N.W.

Washington, D.C. 20015

Attorney for Respondent

Maryland and Virginia Milk

Producers Association, Inc.

February 28, 1979

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Press oF Byron S. ADAMS PRINTING, Inc., WASHINGTON, D. C.

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TABLE OF CONTENTS

Page

Motion To Dismiss PETITION FoR CERTIORARI .......... 1

GRONI CINI ora) hs ve Uk de eldd bee cas ad Cae ces 2

Tuts Court’s Lack oF JURISDICTION ............0008- 2

Statutes AND Ruues or Tus Court INVOLVED ........ 2

SINS, III vin. oo 5 was unes by cakeae ts cue 3

STATEMENT OF THB CASE ..... 2. ccccccccccccccccsces 3

ARGUMENT:

I.

Il.

Tue Petition ror Certiorart Must Be Dts-

MISSED FOR WANT oF StTaTuTORY JURISDICTION,

Saw Petition Havine Been Firtep More THan

Ninety (90) Days Arrer Entry or tHe Court

or APPEALS’ JUDGMENT, IN VIOLATION oF 28

U.S.C. 2101(c) anp Rute 22 or Tus Court’s

PN ks bas eka eae Ohhiee oe one

THE PetTITION For CERTIORARI Is ALSo Grounp-

Less Because In Susstance, It Raises For

RE.ITIGATION EssENTIALLY THE SAME Issues

Serttep By Tuts Court’s Deniau or CeErtTi0-

RARI EKicHt (8) Years Aco In Parish v. Mary-

land and Virginia Milk Producers Association,

Inc., ET au., 261 Mp. 618, 277 A.2p. 19, Cert.

Dented, 404 U.S. 940 (1971) ...............

10

il TABLE OF AUTHORITIES

CASEs: Page

Citizens Bank of Michigan City v. Opperman, 249 U.S.

448, 39 S.Ct. 330, 63 L.Ed. 701 (1919) ........... 9

Cole v. Violette, 319 U.S. 581, 63 S.Ct. 1204 (1943) .... 9

Collard v. Pittsburgh, Cincinnati, Chicago & St. Louis

Ry. Co., 246 U.S. 653, 38 S.Ct. 336, 62 L.Ed. 922 ‘

ER CR eae i pec See cReen te palaes 84?

Glasgow Navigation Company, Ltd. v. Munson Steam-

ship Line, 246 U.S. 647, 38 S.Ct. 315, 62 L.Ed. 919

(SERS i AE SR GS Paty eae rg 9

Hartford fonre & Indemnity Co. v. Bunn, 285 U.S.

169, 175, 176, 52 S.Ct. 456, 76 L.Ed. 1301 ........ 9

Matton Steamboat Co. v. Murphy, 319 U.S. 412, 415,

5 a eer rT rr ree ree 9,10

Parish v. Maryland and Virginia Milk Producers Asso-

ciation, Inc., 261 Md. 618, 277 A.2d 19, cert. denied,

Bis BO Re ys ee ress pe 4, 5, 6, 7,10

Rust Land & Lbr. Co. v. Jackson, 250 U.S. 71, 76, 39

S.Ct. 424, 68 L.Ed. 850 (1919) ..... cc cecscccces 9, 10

Toledo Scale Company v. Computing Company, 261

U.S. 399, 417, 418, 43 S.Ct. 458, 67 L.Ed. 719

ts Oa ee iebada Cana e hss ekg Mee LIES bs 9

Whitsitt v. Union Depot and Railroad Company, 122,

U.S. 363, 7 S.Ct. 1248, 30 L.Ed. 1150 (1887) ..... 9

STATUTES AND Russ: |

i eee a ae wi anak 4w aden ed hae nee 2, 3, 9

Rule 22 Supreme Court Rules ................0005: 2, 3,9

IN THE

Supreme Court of the United States

OctToBeR TERM, 1978

No. 78-1246

FRANK P. ParisH AND THEODORE FisHER ParisH,

Petitioners,

Vv.

MARYLAND AND VIRGINIA MILK Propucers AssociaTION,

INC., ET AL.,

Respondents.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

BRIEF OF RESPONDENT MARYLAND AND VIRGINIA

MILK PRODUCERS ASSOCIATION, INC.

IN OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI AND MOTION TO DISMISS PETITION

FOR WANT OF STATUTORY JURISDICTION,

AND BECAUSE THE ISSUES RAISED BY THE

PETITION WERE SETTLED BY THIS COURT'S

DENIAL OF CERTIORARI IN A CASE BETWEEN

THE SAME PARTIES EIGHT YEARS AGO

Respondent Maryland and Virginia Milk Producers

Association, Inc. hereby submits this brief in opposi-

tion to the petition for certiorari herein, and it moves

2

to dismiss said petition on the grounds (a) that this

Court lacks statutory jurisdiction over this case, the

petition for certiorari having been filed on February

12, 1979, more than ninety (90) days after entry of the

Court of Appeals’ judgment herein on November 3,

1978, and (b) that the issues raised by the petition

were settled by this Court’s denial of certiorari in a

case between the same parties eight (8) years ago.

OPINIONS BELOW

The unreported November 3, 1978 opinion and judg-

ment of the United States Court of Appeals for the

Fourth Cireuit are printed in the Appendix to the

Petition for Certiorari at pages A-1 through A-6.

The unreported opinion of the United States Dis-

trict Court for Maryland, which was unanimously af-

firmed by the Court of Appeals’ judgment, is also

printed in the Appendix to the Petition for Certiorari

at pages A-7 through A-18.

THIS COURT LACKS JURISDICTION

This Court does not have jurisdiction over this case

because the petition for writ of certiorari was not filed

until February 12, 1979, a date more than ninety (90)

days after entry of the Court of Appeals’ judgment of

November 3, 1978, in violation of the provisions of 28

U.S.C. 2101(c) and Rule 22 of the Supreme Court

Rules.

STATUTES AND RULES INVOLVED

(a) Title 28 U.S.C. 2101(c), as here relevant, pro-

vides:

‘Supreme Court; Time For Appeal Or Certi-

orari; Docketing .. .

3

‘‘(e) Any other appeal or any writ of certi-

orari intended to bring any judgment or decree in

a civil action, suit or proceeding before the Su-

preme Court for review shall be taken or applied

for within ninety days after the entry of said

judgment or decree... .”’

(b) Rule 22(3) of the Supreme Court Rules, in

turn, provides as here relevant:

“Review On Certiorari—Time For Petitioning.

‘*3. A petition for writ of certiorari in all other

eases shall be deemed in time when it is filed with

the clerk within the time prescribed by law.”’

QUESTIONS PRESENTED

1. Does this Court have statutory jurisdiction to

entertain a petition for writ of certiorari in a civil

case wherein the petition was filed more than ninety

(90) days after the date of entry of the Court of Ap-

peals’ judgment, in violation of 28 U.S.C. 2101(c)

and Rule 22(3) of this Court’s Rules?

2. Should this Court even consider a petition for

certiorari in a case where the petition essentially raises

for relitigation issues that were settled by this Court’s

denial of certiorari eight (8) years ago in a case be-

tween the same parties?

STATEMENT OF THE CASE

This suit constitutes the fourth time in approxi-

mately fourteen (14) years that respondent Maryland

and Virginia Milk Producers Association, Inc. (here-

inafter referred to as the “ Association’), its officers,

directors, accountants, attorneys and various other

parties have been forced by legal process to defend

4

against essentially the same false, specious claims filed

by the same plaintiffs, Mr. and Mrs. Frank P. Parish.

The long, extremely oppressive, costly history of this

seemingly endless litigation is as follows:

(i) Litigation in the Baltimore County. Maryland Circuit Court.

In January, 1965, the Parishes filed the first version

of their baseless complaint in the Cireuit Court for

Baltimore County, Maryland (Parish v. Maryland and

Virginia Milk Producers Association, Inc., Equity No.

54599 78/19).

The Association and the other defendants moved to

dismiss on several grounds, including total lack of

jurisdiction. As a result, in February, 1965, an order

of dismissal was entered by the court, and the Parishes

were directed to pay costs.

(ii) Litigation in the Montgomery County. Maryland Circuit Court,

The Maryland Court of Appeals, and the Supreme Court of

the United States.

In February, 1965, the Parishes filed essentially the

same baseless complaint against the Association, its

officers, directors, attorneys, accountants and other

parties in the Montgomery County, Maryland Circuit

Court. The complaint was amended three (3) times,

but it too was dismissed in response to demurrers filed

on behalf of the Association and the other defendants.

Mr. and Mrs. Parish appealed to the Maryland

Court of Appeals, which subsequently ruled that the

complaint contained sufficient allegations to warrant

a trial (see Parish v. Maryland and Virginia Milk

Producers Association, Inc., et al., 250 Md. 24, 242 A.2d

512 (1968) ).

5

The oppressive, costly proceedings which thereafter

ensued were described by the Maryland Court of Ap-

peals in a later opinion it rendered in 1971 as follows

(see Parish v. Maryland and Virginia Milk Producers

Association, Inc., et al. 261 Md. 618, 277 A.2d 19

(1971)):

“The docket entries take up 28 printed pages.

Thev show that the chancellor held no less than 15

hearings on motions of one kind or another and

that the trial on the merits went on without inter-

ruption for four weeks. The transcript weighs over

100 pounds; the record extract and the briefs oc-

eupy in excess of 3,000 printed pages; a dozen or

more pleadings (over 100 typewritten pages) have

been filed [with the Court of Appeals] since the

oral arguments.”’

Mr. Parish, however, whose groundless, specious

complaint forced the Maryland courts, the Association

and a large number of individual defendants to endure

that extremely heavy, long, costly litigation burden,

flatly refused even to appear for discovery proceedings

in the case when he was ordered to do so by the circuit

court. A motion was thus filed to punish him for bla-

tant contempt of court. Mr. Parish contended that he

was suffering from a circulatory problem that had

adversely affected his memory and his ability to think

—and thus he contended he should not be made to

testify in a court proceeding. After a full hearing,

however, the circuit court granted defendants’ motion,

and Mr. Parish was dismissed from the case for re-

peated contempt of the court’s orders.

Plaintiff Theodore Parish (Mr. Parish’s wife), how-

ever, continued to prosecute the Montgomery County

action with the same attorneys, so the case thereupon

proceeded to a lengthy trial on the merits. At the con-

6

clusion of that trial, which lasted four (4) full weeks,

the Montgomery County Cireuit Court carefully re-

viewed the evidence, passed on each and every issue

presented by the parties for decision, and dismissed

the complaint.

Mr. and Mrs. Parish were not satisfied, however, so

again they appealed to the Maryland Court of Appeals.

This time, the Court of Appeals affirmed the circuit

court’s rulings in every respect (see Parish v. Mary-

land and Virginia Milk Producers Association, Inc.,

261 Md. 618, 277 A.2d 19, cert. denied, 404 U.S. 940

(1971) )--and at the end of its lengthy opinion, the

Court stated, at 261 Md. 698:

‘*Perhaps our decision here will bring this liti-

gation to a conclusion. Thus endeth the lesson.”’

But, as demonstrated hereinbelow, the detailed, me-

ticulous opinion of the Court of Appeals did not bring

the litigation to an end. Mr. and Mrs. Parish filed a

petition for writ of certiorari in the Supreme Court of

the United States, but in due course, that petition was

denied by this Court, almost eight (8) years ago

(Parish v. Maryland and Virginia Milk Producers

Association, Inc., 404 U.S. 940, 30 L.Ed. 2d 253 (1971) ).

(iii) Further Litigation in the Frederick County, Maryland Circuit

Court.

Then, two (2) years later, on August 16, 1973, Mr.

and Mrs. Parish suddenly decided to attempt to reliti-

gate the entire case against the Association in the

Frederick County, Maryland Cireuit Court. They filed

another complaint based on essentially the same old

allegations and claims which had been dismissed in the

Montgomery County case—and which, of course, are

7

again reasserted in the amended complaint dismissed

by the United States District Court for Maryland and

the Court of Appeals for the Fourth Circuit in the case

at bar (see Parish v. Maryland and Virginia Milk

Producers Association, Inc., Equity No. 24-465 Fred-

erick County Cir. Ct.).

Respondent Association promptly moved to dismiss,

contending the Frederick County vomplaint was clearly

barred by the doctrines of res judicata and collateral

estoppel. When the Frederick County Cireuit Court

set the Association’s motion for hearing on November

16, 1973, Mr. and Mrs. Parish filed a simple ‘‘ Motion

for Permission to Withdraw Their Bill of Complaint”’

which the Frederick County Court readily granted.

(iv) The Instant Litigation in the United States District Court in

Baltimore, the Fourth Circuit and in This Court.

Almost two (2) years after they withdrew their spe-

cious complaint in the Frederick County Cireuit Court

because it was patently barred by res judicata, Mr. and

Mrs. Parish journeyed to Baltimore and filed essen-

tially the same old claims which had been dismissed in

the Montgomery County litigation against the Associ-

ation, its officers, directors, attorneys and accountants

in the United States District Court for Maryland. Mo-

tions to dismiss were filed by all defendants, and after

considerable litigation, the District Court dismissed the

Parishes’ complaint, stating (App. to Petition, page

A-11):

“This court sits neither as a second chance

forum for losing litigants nor as a court of appeals

reviewing decisions of state appellate courts.

Whether the analytical base is res judicata, full

faith and credit, or outright lack of jurisdiction, it

8

is clear that plaintiffs’... causes of action must

be dismissed.” *

The Parishes appealed to the United States Court

of Appeals for the Fourth Circuit. On November 3,

1978, that court unanimously affirmed the district

court’s judgment of dismissal, holding (App. to Peti-

tion, page A-4):

‘‘After our examination of the complaint and

the state court opinions, we too are persuaded that

the claims should have been barred on res judicata

principles.”’

On that same day, November 3, 1978, the Clerk of

the United States Court of Appeals for the Fourth

Circuit addressed a memorandum to all parties and

their counsel specifically advising that the Court of

Appeals’ judgment was entered on that date, Novem-

ber 3, 1978, (see Appendix A hereto).

The Parishes did not petition for rehearing in the

Court of Appeals, and they did not apply to this Court,

or to any Justice thereof, for an extension of time

to file the instant petition for writ of certiorari with

reference to the Court of Appeals’ decision and judg-

ment of November 3, 1978. Rather, they waited one

hundred one (101) days after November 3, 1978 to file

their petition for writ of certiorari in this Court on

February 12, 1979.

‘The district court proceeded to dismiss other causes of action

inserted in the complaint on other grounds (App. to Petition,

pages A-12 through A-17) and warned Mr. and Mrs. Parish as

follows (page A-17) :

‘*Plaintiffs . . . are put on notice that any further attempt

to litigate the claims . . . may result in the assessment of costs,

including attorneys’ fees, by any court having jurisdiction

over the parties because such relitigation would be in bad

faith or for purposes of harassment.’’

ee Oe

THE PETITION FOR CERTIORARI MUST BE DISMISSED FOR

WANT OF STATUTORY JURISDICTION, SAID PETITION HAV-

ING BEEN FILED MORE THAN NINETY (90) DAYS AFTER

ENTRY OF THE COURT OF APPEALS’ JUDGMENT IN VIOLA-

pi OF 28 U.S.C. 2101(c) AND RULE 22 OF THIS COURT’S

Ss

As stated above, petitioners failed (a) to file their

petition for certiorari for one hundred one (101) days

after entry of the Court of Appeals’ judgment of No-

vember 3, 1978, and (b) to obtain any extension of time

for the filing of said petition in the manner prescribed

by law. Said petition for certiorari, therefore, was not

filed within ninety (90) days after entry of the Court

of Appeals’ judgment as required by statute (28 U.S.C.

2101(¢)) and by Rule 22 of the Supreme Court Rules.

Ergo, this Court is without jurisdiction over this

case and the petition for certiorari must be dismissed

(Whitsitt v. Union Depot and Railroad Company, 122

U.S. 363, 78. Ct. 1248, 30 L.Ed. 1150 (1887) ; Glasgow

Navigation Company, Ltd. v. Munson Steamship Line,

246 U.S. 647, 38 S.Ct. 315, 62 L.Ed. 919 (1918) ; Col-

lard v. Pittsburgh, Cincinnati, Chicago & St. Louis

Ry. Co., 246 U.S. 653, 38 S.Ct. 336, 62 L.Ed. 922 (1918) ;

Citizens Bank of Michigan City v. Opperman, 249 U.S.

448, 39 S.Ct. 330, 63 L.Ed. 701 (1919); Rust Land &

Lbr. Co. v. Jackson, 250 U.S. 71, 76, 39 S.Ct. 424, 63

L.Ed. 850 (1919); Toledo Scale Company v. Comput-

ing Company, 261 U.S. 399, 417, 418, 43 S.Ct. 458, 67

L.Ed. 719 (1923) ; Hartford Accident & Indemnity Co.

v. Bunn, 285 U.S. 169, 175, 176, 52 S.Ct. 456, 76 L.Ed

1301; Matton Steamboat Co. v. Murphy, 319 U.S. 412,

415, 63 S.Ct. 1126 (1943) ; Cole v. Violette, 319 U.S.

081, 63 S.Ct. 1204 (1943).

10

II

THE PETITION FOR CERTIORARI IS ALSO GROUNDLESS

BECAUSE, IN SUBSTANCE, IT ATTEMPTS TO RAISE FOR RE-

LITIGATION HERE ESSENTIALLY THE SAME ISSUES SETTLED

EIGHT (8) YEARS AGO BY THIS COURT'S DENIAL OF CERTI-

ORARI IN PARISH v. MARYLAND AND VIRGINIA MILK PRO-

DUCERS ASSOCIATION, INC., ET AL., 261 MD. 618, 277 A.2d

19, CERT. DENIED, 404 U.S. 940 (1971)

The purpose of statutes limiting the period for ap-

peal or to seek certiorari is to set a definite point of

time when litigation shall be at an end, and to advise

appellees and respondents that they are freed of the

demands against them (Matton Steamboat Co. v. Mur-

phy, supra, at 319 U.S. 415). Indeed, even if the peti-

tion ‘‘shows a proper case for .. . allowance of [the]

writ [of certiorari],’’ the petition must nevertheless

be dismissed on jurisdictional grounds if it is filed

after the time fixed by statute has expired (Rust Land

& Lbr. Co. v. Jackson, supra, at 250 U.S. 76).

But here, the record before the Court shows that, in

substance, the petition for certiorari attempts to pre-

sent questions for relitigation which have already been

settled by the highest court of Maryland in a case where

this Court, in turn, denied certiorari eight (8) years

ago, in 1971 (Parish v. Maryland and Virginia Milk

Producers Association, Inc., et al., 261 Md. 618, 277

A.2d 19, cert. denied, 404 U.S. 940 (1971).

11

A fortiori, the Court of Appeals for the Fourth Cir-

cuit correctly ruled in the instant case (see Appendix

to Petition for Certiorari, pg. A-4):

‘‘After our examination of the complaint and the

state court opinions, we too are persuaded that

the claims should have been barred on res judicata

principles.”’

In addition to being untimely and beyond this

Court’s jurisdiction, therefore, the petition herein is

also groundless and patently it fails to present any im-

portant federal question or conflict in federal decisions

to this Court for review. Plainly, therefore, it must be

dismissed.

WHEREFORE, respondent prays that the motion to dis-

miss hereinabove set forth be granted and that the pe-

tition for certiorari in this case be dismissed or sum-

marily denied.

Respectfully submitted,

Epwarp L. MerricaNn

6000 Connecticut Avenue, N.W.

Washington, D.C. 20015

Attorney for Respondent

Maryland and Virginia Milk

Producers Association, Inc.

February 28, 1979

12

CERTIFICATE OF SERVICE

Tus Is To Certiry that copies of respondent’s oppo-

sition to petition for writ of certiorari and motion to

dismiss were duly served by first class mail this 28th

day of February, 1979 upon petitioners and all counsel

for respondents herein.

Epwarp L. MERRIGAN

APPENDIX

ae

la

Unitep States Court or APPEALS

FOURTH CIRCUIT

WiuiaM K. Sxate, Il

CLERK

TELEPHONE 782-2213

Area Cope 804

TentH AND Marin Streets

RicHMonpD, VirGinia 23219

November 3, 1978

To: Mr. Frank P. Parish, Mrs. Theodore Fisher Parish,

John Rounsaville, Jr., Esq., Donald F. Copeland, Esq.,

Harlan L. Weiss, Esq., Albert E. Brault, Esq., Theo-

dore R. Tenzlaff, Ksq., M. Peter Moser, Esq., Robert

B. Barnhouse, Esq., Alan R. Sachs, Esq., Nevett

Steele, Esq., Daniel M. Clements, Esq., Edward Mer-

rigan, Esq., Leonard Schaitman, Esq., Susan R.

Chalker, Esq., William B. Sumerville, Esq., Jon H.

Grube, Ksq., John J. O’Neill, Esq., Thomas A. Hen-

ning, KMsq., M. Natalie McSherry, Esq.

CLERK’S MEMORANDUM

In compliance with Rules 36 and 45(c) of the Federal

Rules of Appellate Procedure, you are advised that the

judgment in case No. 78-1079 was entered this date. A copy

of the court’s opinion, and a blank bill of costs (omitted in

criminal cases) is enclosed.

2a

I would invite your particular attention to Rules 39(c),

40(a), and 41(b) of the Federal Rules of Appellate Pro-

cedure.

Please be advised that the policy of this court requires

that petitions for rehearing, regardless whether the case

was fee paid or in forma pauperis, be filed in fifteen copies.

When it has been determined that a stay of the mandate

is an appropriate course of action, then an original petition

only (no copies) to stay the mandate need be filed.

Enclosures

Wiuuiam K. Suate, IT

CLERK

Rev. 9-1-76