supplemental petition — Dougherty v. Haaland

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7 EILED 1

¥Cl 24 1979 |

SDK, JR., CLERK

Supreme Court of the United

October Term, 1979.

No. %9-642

JOHN J. DOUGHERTY,

Petitioner,

v.

CHRISTIAN HAALAND,

Respondent.

SUPPLEMENT TO

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT.

ABRAHAM E. FREEDMAN,

STANLEY B. GRUBER,

FREEDMAN AND Lorry,

Lafayette Building, 8th Floor,

Philadelphia, PA 19106

Attorneys for Petitioner.

international Printing Co., 711 So. SOth St., Phila., Pa. 19143 — Tel. (215) 727-8711

INDEX.

SUPPLEMENT TO Perition ror Writ or CERTIORARL .. 2.2... .

APPENDIX A;

Motion for Enlargement of Time .................

Se Pree

Aprenpix B:

Order Directing Appellee to File Answer to Motion |...

Arrenbix C;

Appellee’s Answer to Motion ...................220-.

Brief in Opposition to Motion .................

Aprenpix D:

Order Denying Motion for Enlargement of Time

BY

IN THE

Supreme Court of the United States

OcToBEeR TERM, 1979.

No. 79-642.

JOHN J. DOUGHERTY,

Petitioner,

v.

CHRISTIAN HAALAND,

Respondent.

SUPPLEMENT TO PETITION FOR

WRIT OF CERTIORARI.

To the Honorable, the Chief Justice and the Associate

Justices of the Supreme Court of the United States:

The Judgment Order of the Court of Appeals, affirm-

ing the judgment of the District Court in this matter, was

filed on July 17, 1979. On September 10, 1979, petitioner

filed a Motion for enlargement of time to file a Petition for

Rehearing or in the alternative for leave to file a motion in

the United States District Court for the Eastern District of

Pennsylvania for relief from the final judgment in this

matter pursuant to Rule 60(b)(6) of the Federal Rules of

Civil Procedure. This Motion is reproduced as Appendix A

to this Supplement (B1).

Thereafter, on September 11, 1979, the Honorable

Arlin M. Adams issued an Order directing the respondent

to file an answer to the motion within seven days. Judge

Adams’ Order is reproduced as Appendix B (B9). On

September 17, 1979, respondent filed its answer to the

motion. That Answer is reproduced as Appendix C

(B11).

2 Sunplement to Petition

Finally, on September 24, 1979, Judge Adams issued

an Order denying the motion. That Order is reproduced

as Appendix D (B17).

It is submitted that the action of the Court of Appeals

in allowing the filing of the aforesaid motion and con-

sidering same on its merits resulted in the Judgment of the

Court of Appeals not becoming final until the denial of the

motion on September 24, 1979. Accordingly, the Petition

for Writ of Certiorari filed by petitioner in this matter is

timely filed.

In Bowman v. Loperena, 311 U. S. 262 (1940), this

Court held at page 266 as follows:

“,.. The filing of an untimely petition for rehearing

which is not entertained or considered on its merits,

or a motion for leave to file such a petition out of time,

if not acted on or if denied by the trial court, cannot

operate to extend the time for appeal. But where the

Court allows the filing and, after considering the

merits, denys the petition, the judgment of the Court

as originally entered does not become final until such

denial, and the time of the appeal runs from the date

thereof.”

See also Stern and Gressman, Supreme Court Practice, 5th

Edition, § 6.3, page 399.

Since the Court of Appeals clearly considered the

merits of the aforesaid motion, it is respectfully submitted

that the finality of the Judgment below was suspended

until the Order denying the motion on September 24, 1979.

Respectfully submitted,

ABRAHAM E. FREEDMAN,

STANLEY B. GRUBER,

FREEDMAN AND LORRY,

Attorneys for Petitioner.

APPENDIX A.

IN THE

UNITED STATES COURT OF APPEALS

For THE THIRD CIRCUIT.

No. 78-2575.

JOHN J. DOUGHERTY,

Appellant,

v.

CHRISTIAN HAALAND,

Appellee.

Motion for Enlargement of Time to File Petition for Re-

hearing or in the Alternative for Leave to File a

Motion in the United States District Court for the

Eastern District of Pennsylvania for Relief From the

Final Judgment in This Matter Pursuant to Rule

60(b)(6) of the Federal Rules of Civil Procedure.

To the Honorable, the Judges of the United States Court of

Appeals for the Third Circuit:

Appellant, John J. Dougherty, by his attorneys, Messrs.

Freedman and Lorry, respectfully moves this Court for

enlargement of time to file Petition for Rehearing or in

the alternative for leave to file a motion in the United

States District Court for the Eastern District of Penn-

sylvania for relief from the Final Judgment in this matter

pursuant to Rule 60(b)(6) of the Federal Rules of Civil

Procedure, and states as follows:

(B1)

B2 Appendix A

1. This action was brought by the appellant-long-

shoreman against the appellee-shipowner to recover dam-

ages for personal injuries sustained while working aboard

appellee's vessel. The case was tried before the Honorable

Alfred L. Luongo and a jury. At the conclusion of all the

evidence, the Court granted the motion of appellee for

directed verdict.

2. Thereafter, a timely Appeal was taken to this Court

and after the filing of briefs, argument was held on July

13, 1979. On July 17, 1979, this Court (Adams, Rosenn

and Higginbotham, Circuit Judges), issued a Judgment

Order affirming the judgment of the District Court.

3. Counsel for appellant has now received a copy of

this Court’s decision in Griffith v. Wheeling-Pittsburgh

Steel Corp., (Nos. 78-2159, 78-2160, 78-2161) which was

argued on June 7, 1979, more than 1 month prior to the

argument in the instant case. The opinion in the Griffith

case (Gibbons, Weis and Higginbotham, Circuit Judges )

was filed by this Court on August 24, 1979, more than 1

month after the entry of the Judgment Order in the case

at bar.

4. In Griffith, this Court enunciated a standard of care

to be applied in cases brought by longshoremen against

vessels pursuant to Section 5(b) of the Longshoremen’s

and Harbor Workers’ Compensation Act, 33 U. S. C.

§905(b). It is respectfully submitted that application of

the standard of care announced in Griffith would preclude

the issuance of a directed verdict in this case.

5. In view of the fact that the instant Appeal had

been decided by way of Judgment Order by an unanimous

panel and in view of the fact that counsel for appellant

could not have been aware of the forthcoming Griffith

opinion, counsel determined that a Petition for Rehearing

Appendix A B3

would be a futile gesture. Accordingly, the 14 day period

in which to file a Petition for Rehearing has elapsed.

6. Annexed to this motion is a brief setting forth the

manner in which the standard of care relied upon by the

District Court in the case at bar has been rejected by this

Court in the Griffith case. Accordingly, the Judgment

Order affirming the judgment below has, in effect, affirmed

a judgment based on a standard of care squarely rejected

by another panel of this Court. Under the circumstances,

it is respectfully submitted that the interests of justice re-

quire that appellant be given an opportunity to either file

a Petition for Rehearing or file a motion with the District

Court for relief from the judgment below under Rule

60(b)(6) of the Federal Rules of Civil Procedure.

FREEDMAN AND LORRY

By /s/ STANLEY B. GRUBER

Stanely B. Gruber

Attorney for Appellant

B4 Appendix A

IN THE

UNITED STATES COURT OF APPEALS

For THE Turrp CikcuitT

No. 78-2575

JOHN J. DOUGHERTY,

Appellant,

v.

CHRISTIAN HAALAND,

Appellee.

Brief in Support of Motion to Enlarge Time to File Peti-

tion for Rehearing or in the Alternative for Leave to

File Motion in District Court Pursuant to Rule 60

(b)(6) of the Federal Rules of Civil Procedure.

On July 17, 1979, this Court issued a Judgment Order

affirming the judgment of the District Court in this case.

The District Court had directed a verdict in favor of the

defendant shipowner after the close of all the evidence.

Thereafter, the District Court had denied Plaintiff's Mo-

tion for a New Trial. The opinion of the District Court

is printed at 457 F. Supp. 860.

In formulating a standard of care governing cases

brought pursuant to 33 U. S. C. §905(b), the District

Court in this case held:

“, . . an injured longshoreman seeking to impose lia-

bility on a vessel under § 905(b) must show that the

vessel was negligent in relying upon the stevedore’s

expertise and in assuming that the work could be

safely done by the stevedore. This in turn requires a

Appendix A BS

showing that (1) the conditions aboard ship created

an unreasonable risk of harm, even for a longshoreman

working under the guidance of an expert stevedore,

and (2) the vessel, although not possessed of the

stevedore’s expertise, knew or should have known of

this unreasonable risk of harm.” 457 F. Supp. at page

865.

The standard of care formulated by the District Court

in the case at bar does not conform to the standard of care

announced by this Court in Griffith v. Wheeling-Pittsburgh

Steel Corp, — F. 2d —, (Nos. 78-2159, 78-2160, 78-2161 ).

The Griffith case was argued on June 7, 1979, more than 1

month before the argument in this case. The opinion in

Griffith was issued on August 24, 1979, more than 1 month

after the issuance of the Judgment Order in the case at bar.

In Griffith, the vessel argued that it could not be held

liable in negligence under §905(b) “if it has delivered

the ship ‘in such condition that an expert and experienced

stevedoring contractor, mindful of the dangers he should

reasonably expect to encounter’ wiil be able to load or un-

load the vessel safely by exercising ‘ordinary care under

the circumstances.” (See pages 11-12 of slip opinion)

In response, this Court held that acceptance of such a

standard of care would be at variance with the holding of

the Supreme Court in Edmonds v. Compagnie Generale

Transatlantique, — U. S. —, 47 U. S. L. W. 4868 (June 27,

1979). Thus, Judge Gibbons, speaking for the Court,

stated at page 12 of the slip opinion:

“Under American’s first proposed standard of care, the

vessel will be relieved of liability to a longshoreman

for unreasonably dangerous conditions on board ship

whenever the stevecoring contractor fails to perform

his tasks in an ‘expert and experienced’ fashion. This

B6 Appendix A

would occur whether or not the individual longshore-

man was personally at fault. The proposed rule thus

imputes to the non-negligent longshoreman, the negli-

gence of the stevedore employer, and establishes that

negligence as a complete bar to recovery against the

vessel. This result is at variance with the Supreme

Court's interpretation of the 1972 amendments in

Edmonds v. Compagnie Generale Transatlantique,

supra. It is inconceivable to us that the Court,

which disapproves a rule that imputes the negligence

of a stevedore to the longshoreman to reduce his re-

covery against the negligent shipowner, would ap-

prove a rule barring all recovery against the negligent

shipowner on the basis of imputed employer negli-

gence. °

The Court went on to reason at page 14 of the slip

opinion:

“The sounder approach, we think, is to recognize that

§ 905(b) imposes on vessel owners the same duty to

exercise ‘reasonable care under the circumstances of

each case’ that would be applicable to a land-based

business. Accord, Santos v. Scindia Steam Naviga-

tion Co. . . . Gallardo v. Westfal-Larsen & Co.

42g

The Court then formulated the following standard of

care at page 14 of the slip opinion:

“At a minimum, we think that the standard of reason-

able care under the circumstances would permit a

° A similar ve was made by counsel for appellant at

the oral argument of this case held on July 13, 1979.

°° The Gallardo case was cited favorably on several occasions

by the Griffith Court. The District Court in the instant case ex-

pressly rejected Gallardo. 457 F. Supp. at page 864.

Appendix A B7

finding of negligence upon a showing: (1) that the

vessel knew of or by the exercise of reasonable care

could have discovered the condition on board ship

that led to the injury; (2) that the vessel knew or

should have known that the condition would pose an

unreasonable risk of harm to longshoremen working

aboard ship; and (3) that the vessel failed to exer-

cise reasonable care to protect the longshoremen

against that danger.”

Clearly, the District Court did not apply the standard

of care expressed by the Griffith Court. The Griffith case

had already been argued when the case at bar was argued

on July 13, 1979. The decision in Griffith was announced

on August 24, 1979, more than 1 month after the Judgment

Order issued in this case on July 17, 1979. Accordingly,

counsel for appellant was unable to file a petition for

rehearing within the required 14 day period based on the

Griffith decision. There can be no question but that there

is a square conflict between the Griffith opinion and the

opinion of the District Court in this case. Yet, the opinion

of the District Court was affirmed by the Judgment Order

entered herein. Under the circumstances, there is a sig-

nificant conflict in the actions taken by the panel of this

Court in the Griffith case and in the case at bar. Surely,

the interests of justice require that appellant be given an

opportunity to file a petition for rehearing in view of the

decision in the Griffith case. In the alternative, leave

should be granted to appellant to move the District Court

for an Order pursuant to Rule 60(b)(6) of the Federal

Rules of Civil Procedure which permits the District Court

to relieve a party from a final judgment for “any other

reason justifying relief from the operation of the judgment.”

B8 Appendix A

Conclusion.

For all the foregoing reasons, it is respectfully sub-

mitted that the time of appellant in which to file a Petition

for Rehearing in this case should be enlarged pursuant to

Rule 40 of the Federal Rules of Civil Procedure. In the

alternative, an Order should issue granting leave to plain-

tiff to file a motion with the District Court under Rule

60(b)(6) of the Federal Rules of Civil Procedure.

Respectfully submitted,

FREEDMAN AND LORRY,

By /s/ STANLEY B. GRUBER,

Stanley B. Gruber,

Attorney for Appellant.

Certificate of Service.

This is to certify that a copy of the foregoing Motion

for Enlargement of Time to File Petition for Rehearing or

in the alternative for leave to file a motion in the United

States District Court for the Eastern District of Pennsyl-

vania for Relief from the Final Judgment in this matter

pursuant to Rule 60(b)(6) of the Federal Rules of Civil

Procedure has this day been served by hand-delivery to

Carl A. Putz, Esquire, Krusen, Evans and Byrne, 500 Public

Ledger Building, Philadelphia, Pennsylvania 19106.

/s/ StaNLEY B. GRUBER.

Stanley B. Gruber.

Dated: September 10, 1979.

Appendix B B9

APPENDIX B.

UNITED STATES COURT OF APPEALS

For THE THirp CrRcuIrT.

September 11, 1979

No. 78-2575.

DOUGHERTY, JOHN J.,

Appellant,

v.

HAALAND, CHRISTIAN.

(D. C. Civil No. 76-1703 )

Present: ADAMs, ROSENN and HIGGINBOTHAM,

Circuit Judges.

1. Motion by appellant for enlargement of time to file

petition for rehearing or in the alternative for leave

to file a motion in the United States District Court

for the Eastern District of Pennsylvania for relief

fi m the final judgment in this matter pursuant to

Rule 60(b)(6) of the Federal Rules of Civil Proce-

dure, with Brief in support of motion, in the above-

entitled case. The judgment order was filed on July

17, 1979 and the mandate issued on August 8, 1979.

Respectfully,

T. F. Quinn/ags

Clerk.

P.S.—If any answer, due by September 17, 1979, is re-

ceived it will be forwarded immediately to the panel.

B10 Appendix B

Appellee is directed to file Answer to Appellant’s

Motion within 7 days from the date of this crder.

By THE COURT,

ArLIN M. ADAMs,

Judge.

Dated: September 18, 1979

ae ee —

Appendix C Bll

APPENDIX C.

IN THE

UNITED STATES COURT OF APPEALS

For THE THirp Circuit.

No. 78-2575

JOHN J. DOUGHERTY,

Appellant,

v.

CHRISTIAN HAALAND,

Appellee.

Appellee’s Answer to Appellant’s Motion for Enlargement

of Time to File Petition for Rehearing or in the Alter-

native for Leave to File a Motion in the United States

District Court for the Eastern District of Pennsylvania

for Relief From the Final Judgment in This Matter

Pursuant to Rule 60(b)(6) of the Federal Rules of Civil

Procedure.

To the Honorable, the Judges of the United States Court

of Appeals for the Third Circuit:

Appellee, Christian Haaland, by its attorneys, Messrs.

Krusen Evans and Byrne, in answer to the pending Motion

of Appellant respectfully avers as follows:

1. Admitted.

2. In addition to the procedural history as recited by

Appellant it should be noted further that the case of

B12 Appendix C

Edmonds v. Compagnie Generale Transatlantique—u. S.

—, 47 U. S. L. W. 4868 was argued on March 19, 1979

and was decided by the Supreme Court on June 27, 1979.

Indeed, Edmonds, supra, was referred to by Appellant at

time of oral argument in this matter on July 13, 1979.

3. Admitted as stated, however, Appellee denies that

the procedural history of Griffith provides any support for

the granting of Appellant’s Motion.

4. It is respectfully submitted that in making the

averments in paragraph 4, to the effect that this Court

“enunciated a standard of care to be applied in cases

brought by longshoremen against vessels”, Appellee infers

that this Court’s decision in Griffith brings into effect new

principles of law. In fact this Court in Griffith clearly

reviewed previous decisions including the Supreme Court’s

decision in Edmonds, supra, and the Ninth Circuit Opinion

in Santos v. Scindia Steam Navigation Co., 598 F. 2d 480

(9th Cir., 1979) as well as other cases, and applied prin-

ciples established in those previously decided cases to the

facts in Griffith.

Moreover, in stating that the application of the stand-

ard of care applied in Griffith would preclude a directed

verdict in this case Appellee attempts to transform this

Motion for Enlargement of Time into a Petition for Re-

hearing on the merits of his position without presenting

sound basis for having this Court grant a Motion to

Enlarge the Time in which to file such a Petition.

This indirect effort should fail.

5. It is averred that while counsel for Appellant might

not have been aware of the pendency of the Griffith

opinion, he most certainly should have been aware of the

cases which form the basis for that opinion including

‘Edmonds, Santos and the other cases. Counsel had ample

Appendix C B13

time within which to review those cases and comply with

Rule 40 of the Federal Rules of Appellate procedure.

6. It is respectfully submitted that Appellant’s sub-

mission of a Brief on the proported merits of his position

is improper since the issue, if any, raised by his Motion, is

whether there are grounds, upon which he be excused

from not having timely filed a Petition for Rehearing.

It is respectfully submitted that, that is the only issue

properly before this Court.

KRUSEN EVANS AND BYRNE,

By /s/ Cant A. Putz,

Carl A. Putz, Esquire,

Attorney for Appellee.

Bi4 Appendix C

re IN THE

UNITED STATES COURT OF APPEALS

For THE THIRD CIRCUIT

No. 78-2575.

JOHN J. DOUGHERTY,

Appellant,

v.

CHRISTIAN HAALAND,

Appellee.

Brief in Opposition to Appellee’s Motion for Enlargement

of Time to File Petition for Rehearing or in the Alter-

native for Leave to File Motion in District Court

Pursuant to Rule 60(b)(6) of the Federal Rules of Civil

Procedure.

Appellee’s argument, while made in support of his

Motion for Enlargement of Time to file a Petition for

Rehearing, attempts to raise proported substantive issues

in a procedural framework. Appellant’s arguments must

fail for several reasons.

In arguing that the Court's decision in Griffith pre-

sents a new standard within which to judge the conduct

of a shipowner Appellant fails to consider that Griffith is

based on the solid corner stone of the Edmonds case and

the decision in Santos, both decisions rendered and re-

ported prior to argument in this matter. The failure of

_ Appellant to file a timely Petition for Rehearing as pre-

scribed by Rule 40 of the Federal Rules of Appellate pro-

Appendix C B15

cedure cannot be excused for a lack of awareness of the

outcome of the Griffith case when in fact the basis for the

Court’s decision in Griffith was the Supreme Court's

opinion in Edmonds as well as the Ninth Circuit Opinion

in Santos.

Further if Appellee’s Motion is granted, the time

limitation for filing of a Petition for Rehearing under Rule

40 of the Federal Rules of Appellate procedure would be

nullified. Judicial economy, served by the Rule, estab-

lishing a time limitation and dictating against endless

litigation, would be frustrated.

Appellee’s position, if adopted, would permit a party

to continually comb decisional law to garner language

from legal decisions, to support re-argument of a case

which had proceeded through pretrial discovery, full ex-

position of the facts at a jury trial, post-trial motions and

the perfection of an Appeal.

In his Motion Appellant attempts to call upon the

provisions of Rule 60(b) of the Federal Rules of Civil

Procedure. In so doing Appellant has misdirected his re-

liance on Rule 60(b) F. R. C. P. That rule contemplates

action directed to the District Court not the Appeals Court.

See Moore's Federal Practice, Vol. 7, 1979, 3rd Ed., Sec.

60.28, p. 387. Indeed, in the instant matter following the

filing of a certified copy of this Court’s Judgment Order

the record and exhibits were returned to the Clerk U. S.

District Court on August 8, 1979 and this matter no longer

resides in this Court.

Rule 60(b) F. R. C. P. can provide no relief to Ap-

pellee under the Motion presently before this Court.

Conclusion.

Appellee has not presented any basis to support his

Motion under the procedural history as demonstrated by

B16 Appendix C Appendix D B17

‘this record and is not entitled to relief under Rule 40 APPENDIX D.

F. R. A. P. or Rule 60(b) F. R. C. P.

UNITED STATES COURT OF APPEALS

Respectfully submitted, For THE THIRD CIRCUIT

KRUSEN EVANS AND BYRNE,

By /s/ Cart A. Putz, | September 11, 1979

Carl A. Putz, paioee

Attorney for Appellee. No. 78-2575

DOUGHERTY, JOHN J.,

Appellant

v.

me Pagers of Sen ni HAALAND, CHRISTIAN

This is to certi t « copy of the foregoing Answer

to Appellant's Motion for Enlargement of Time to File (D. C. Civil No. 76-1703)

Petition for Rehearing or in the alternative for leave to file “eeeee

a motion in the United States District Court for the Eastern Present: ApaMs, RosENN and HicGINBOTHAM,

District of Pennsylvania for Relief from the Final Judg- Circuit Judges

ment in this matter pursuant to Rule 60(b) (6) of the Fed- a

eral Rules of Civil Procedure has this day been served by 1. Motion by appellant for enlargement of time to file

hand-delivery to Stanley B. Gruber, Esquire, Freedman petition for rehearing or in the alternative for leave to

and Lorry, 800 Lafayette Building, 5th & Chestnut Streets, file a motion in the United States District Court for

Philadelphia, Pennsylvania 19106. the Eastern District of Pennsylvania for relief from

the final judgment in this matter pursuant to Rule

/s/ Cant A. Purz 60(b)(6) of the Federal Rules of Civil Procedure,

Carl A. Putz with Brief in support of motion, in the above-entitled

case. The judgment order was filed on July 17, 1979

Dated: September 17, 1979 and the mandate issued on August 8, 1979.

Respectfully,

T. F. Quinn/ags

Clerk

j

B18 Appendix D

P.S.—If any answer, due by September 17, 1979, is re-

ceived it will be forwarded immediately to the panel.

The foregoing motion is denied.

By THE COURT,

ARLIN M. ADAMS

Circuit Judge

Datep: September 24, 1979