Opposition — Shakespeare Co. v. Fury Imports, Inc.

. Sentences

80-1089

No.

in the

Supreme Court

of the

United States

OCTOBER TERM 1980

SHAKESPEARE COMPANY, a Delaware corporation,

Petitioner,

VS.

FURY IMPORTS, INC., a New York corporation,

Respondent.

RESPONSE TO PETITION FOR A

WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

EDWARD S. CORLETT, III KENNETH L. RYSKAMP

CORLETT MERRITT GOODWIN, RYSKAMP,

KILLIAN & SIKES WELCHER, CARRIER

116 West Flagler Street & DONOFF, P.A.

Miami, Florida 33130 401 City National

305-377-8931 Bank Building

25 West Flagler Street

Miami, Florida 33130

305-379-8353

Counsel of Recerd for

Respondent

TABLE OF CONTENTS

Statement of Jurisdiction......................

Statement of the Case......................00.

Reasons for Denying the Writ..................

I.

II.

ITI.

IV.

Application of judicial discretion under

Federal Rule of Evidence 403 provides no basis

for Supreme Court jurisdiction..............

Federal Rule of Civil Procedure 41(a)(2) was

neither violated nor considered by the District

Court of the Court of Appeals and thus provided

no basis for this Court’s jurisdiction..........

District Court properly followed the “Law of

the Case” rule when retrying this cause after

opinion and mandate of the Court of Appeals..

The Court of Appeals properly followed the

State Law of New York in ruling that the

Statute of Limitations does not commence

until a breach occurs..................00005

a ee ore

INDEX TO AUTHORITIES

Case Page

Day & Zimmerman, Inc. v. Challoner,

423 U.S. 3, 96 S.Ct. 167,46 L.Ed. 2d3......... 8

Goldberg v. United States,

425 U.S. 94, 96 S.Ct. 1338, 47 L.Ed, 2d 603..... 3

Guard-Life Corp. v. S. Parker Hardware

Manufacturing Corp.,

50 N.Y.2d 183, 428 N.Y.S.2d 628, 406 NE2d 445

SN reo aes Caw ve ks oe nd Phe See eos 8

Norfolk and Western Railway Company v. Liepelt,

___U.S.___, 100 S.Ct. __.,62 L.Ed.2d689... 3

(Other Authorities)

ee RUIN v0. 6 ae Os Wives eee scack ek es 2

Rule 19(b), Rules of Supreme Court of the United

DCR ered. bakes jae hed Meng bas 2

Federal Rule of Evidence 403................... 2,4

Federal Rule of Evidence 801................... 2

Federal Rule of Civil Procedure 41(a)(2).......... 5, 6

Federal Rule of Civil Procedure 44.1............. 2

No.

in the

Supreme Court

of the

United States

OCTOBER TERM 1980

SHAKESPEARE COMPANY, a Delaware corporation,

Petitioner,

vs.

FURY IMPORTS, INC., a New York corporation,

Respondent.

RESPONSE TO PETITION FOR A

WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

Respondent, Fury Imports, Inec., a New York

corporation, responds to the Petition for Writ of Certiorari

filed by the petitioner and directed to the decision of

the United States Court of Appeals for the Fifth Circuit

dated September 8, 1980, with rehearing denied December

3, 1989.

STATEMENT OF JURISDICTION

The petitioner indicates that this petition is taken

pursuant to 28 U.S.C. §1254(1) providing for writs of

certiorari to the United States Courts of Appeals. This

court has adopted Rule 19(b), Rules of Supreme Court

of the United States, indicating the following considerations

for exercising discretionary review over the United

States Court of Appeals:

“Where a court of appeals has rendered a

decision in conflict with the decision of another

court of appeals on the same matter; or has

decided an important state or territorial question

in a way in conflict with applicable state or

territorial law; or has decided an important

question of federal law which has not been,

but should be, settled by this court; or has

decided a federal question in a way in conflict

with applicable decisions of this court; or has

so far departed from the accepted and usual

course of judicial proceedings, or so far sanctioned

such a departure by a lower court, as to call

for an exercise of this court’s power of supervision.”

It is evident from the most summary review of the

Petition for Writ of Certiorari that the petitioner fails

to comply with these jurisdictional requirements. The

petitioner raises no constitutional issues. The petitioner

cites no federal statutes. The petitioner cites two rules

of evidence and one rule from the rules of procedure.

One rule of evidence (403) grants to the trial judge

broad discretion while the other rule of evidence (801)

was never cited by the court of appeals. The rule of

procedure (44.1) was never cited by the court of appeals.

The respondent respectfully submits that there is no

basis for jurisdiction in this court and that the issues

presented are issues only between the parties hereto

and are not issues of substantial public interest. In

effect, the petitioner has taken a second appeal to this

court.

STATEMENT OF THE CASE

This cause has been tried twice by the district

court and considered twice on appeal by the court of

appeals. It would serve no useful purpose to submit a

lengthy detailed analysis of all the facts and proceedings

in the lower courts. The statement of the case submitted

by the petitioner is substantially correct as to procedural

facts but erroneous as to conclusions of law. The

respondent will make further reference to the facts

and issues in the argument portion of this brief.

REASONS FOR DENYING THE WRIT

I.

APPLICATION OF JUDICIAL DISCRETION

UNDER FEDERAL RULE OF EVIDENCE

403 PROVIDES NO BASIS FOR SUPREME

COURT JURISDICTION.

The petitioner’s premise is that this court has not

decided a case dealing with Federal Rule of Evidence

403 since the rules were adopted. This is an erroneous

statement. In Goldberg v. United States, 425 U.S. 94,

96 S.Ct. 13838, 47 L.Ed.2d 603 and Norfolk and Western

Railway Company v. Liepelt, US. »1008.Ct.

, 62 L.Ed.2d 689, this court upheld the broad judicial

discretion given under FRE 403. There is no hint from

these decisions that this court is about to limit the

discretion of the trial court under FRE 403.

There was good reason for the ruling of the district

judge and the court of appeals. In the first trial the

trial judge required the damages to be computed on an

annual basis (32a). Thus, if 150,000 reels were ordered

for 1970 (for example), and 150,000 reels were not received

in that year, the damages for 1970 were computed on

the deficiency. The facts indicated that reels were being

shipped constantly and it would be difficult to determine

which reels applied to which order. The contract was

not terminated until 1973. The trial judge felt that a

remark by counsel referring to damage allocations under

the special verdict should not be distorted into something

it was never intended to be (84-85a).* The facts indicated

that the remark would be misleading and confusing to

the jury (84a). The court of appeals agreed with the

trial judge’s exercise of discretion under Federal Rule

of Evidence 403 (8a). This court does not review

discretionary evidentiary rulings after the court of

appeals has found no abuse of discretion.

*Reference is to petitioner's appendix.

I.

FEDERAL RULE OF CIVIL PROCEDURE

41(a(2) WAS NEITHER VIOLATED NOR

CONSIDERED BY THE DISTRICT COURT

OR THE COURT OF APPEALS AND THUS

PROVIDED NO BASIS FOR THIS COURT'S

JURISDICTION.

Federal Rule 41(a)(2) relates to the dismissal of

actions by a party. It does not deal with the question of

damages. In the first opinion of the court of appeals, it

was noted (35a-footnote 16):

“Shakespeare can be held liable only for those

breaches by Omori that it induced. This is a

substantial point on the facts of this case. For

instance, there was evidence that Omori was

in financial trouble in 1969-70, which might

have affected its capacity to produce reels. In

addition, it is possible that Omori breached

the contract in part even before it entered the

agreement with Shakespeare under which it

agreed to stop dealing with Fury.”

At the second trial, respondent concluded that the

shortages in 1970 resulted from Omori’s production

problems and not Shakespeare's interference. Since

even Shakespeare conceded that the interference took

place on June 10, 1970, and called for action by Omori

one year later, it was difficult to conclude that the

shortages in 1970 were the result of Shakespeare's

interference.

The trial judge never applied Rule 41(a)(2). The

court of appeals never referred to the rule. It is axiomatic

that this court cannot consider a matter not considered

below.

Il.

DISTRICT COURT PROPERLY FOLLOWED

THE “LAW OF THE CASE” RULE WHEN

RETRYING THIS CAUSE AFTER OPINION

AND MANDATE OF THE COURT OF

APPEALS.

The petitioner fails to present the true facts in

this cause. At the first trial, the trial judge held that

New York law governed the question of punitive damages.

After the verdict, the trial judge held that punitive

damages should not have been awarded, again applying

New York law (46a). On appeal, the court of appeals

reversed the judgment n.o.v., and held that under New

York law punitive damages were properly awarded

but, since a new trial was required on compensatory

damages, a retrial was also required on punitive damages

(35-38a). On the first appeal, Shakespeare raised the

question of whether Japanese law governed the punitive

damages issue (see A 1-2).* The court of appeals rejected

this argument and held that the trial judge properly

applied the parties’ stipulation of New York law

(39a-footnote 19). At the second trial, Shakespeare again

tried to inject Japanese law into the punitive damages

issue (48-49a, 70a). The trial judge properly followed

the opinion and mandate of the court of appeals (12a).

When this issue was raised in the second appeal, the

court of appeals held that the trial judge correctly

followed the first opinion (3-4a).

The foregoing events indicate that both the trial

judge and the court of appeals were entirely correct.

There is no further issue for this court to consider.

*Reference is to respondent's appendix.

7

—_

—

IV.

THE COURT OF APPEALS PROPERLY

FOLLOWED THE STATE LAW OF NEW

YORK IN RULING THAT THE STATUTE

OF LIMITATIONS DOES NOT COMMENCE

UNTIL A BREACH OCCURS.

The court of appeals held that the statute of

limitations does not begin until a cause of action accrues.

The court held that a cause of action does not accrue

until a breach occurs, citing numerous New York decisions

(4-8a). After the decision in the second appeal, the

petitioner called to the attention of the court a recent

New York decision in Guard-Life Corp. v. S. Parker

Hardware Manufacturing Corp., 50 N.Y.2d 183, 428

N.Y.S.2d 628, 406 NE2d 445 (1980). The court of appeals

carefully considered this decision and concluded that

this new decision did not change the existing New

York law that a cause of action accrues only when

there is a breach (9-10a).

The petitioner’s reliance upon Day & Zimmerman,

Inc. v. Challoner, 423 U.S. 3, 96 S.Ct. 167, 46 L.Ed.2d 3,

is misplaced. The Challoner case dealt with a federal

court in a diversity action refusing to apply the state's

choice-of-law rules to a personal jury claim which occurred

in Cambodia. In the instant case, the court of appeals

considered the recent New York case (Guard-Life/ and

found that it did not change the New York rule that the

cause of action did not accrue until there was a breach

of contract by Omori. The court of appeals’ interpretation

of the New York law was correct and provides no basis

for jurisdiction in this court.

CONCLUSION

For the reasons stated herein, the petition for

writ of certiorari should be summarily denied.

Respectfully submitted,

KENNETH L. RYSKAMP

GOODWIN, RYSKAMP,

WELCHER, CARRIER

& DONOFYF, P.A.

401 City National Bank Building

Miami, Florida 33130

305-379-8353

Counsel of Record for Respondent

Appendix

EXCERPTS FROM SHAKESPEARE’S

APPELLEE-CROSS APPELLANT’S BRIEF

IN CASE NO. 75-2421 (PAGES 46-47)

B. If Japanese Law Applies As To Punitive

Damages, It Precludes An Award Of

Punitive Damages In This Case.

At trial, Shakespeare offered to prove that the

concept of punitive damages was entirely absent from

Japanese jurisprudence, and Fury’s counsel accepted

the proffer, App. 919-c, Tr. p. 964, waiving any objections.

The issue of applicability of Japanese law to the

punitive damage issue was clearly reserved in the

stipulation of the parties that the New York law was

the law of the forum, and was brought to the attention

of the Court through a Motion to Strike filed on September

11, 1974. (App. 29-33, R. 297-301). Certain Japanese

statutes, in English translation, were appended to

Shakespeare's Motion, and are set forth in pertinent

part, in the Addendum, Par. I. Shakespeare argued

that the Court was bound to apply Florida’s choice of

law rules, Klaxon Co. v. Stentor Electric Mfg. Co., 313

U.S. 487 (1941); Griffin v. McCoach, 313 U.S. 498 (1941);

Gillies v. Aeronaves de Mexico, S.A., 468 F.2d 281 (5th

Cir. 1972), cert. denied 410 U.S. 931 (1973); and that

Florida’s conflict of law rules mandated the Japanese

law as the law applicable to the punitive damage issue,

Hopkins v. Lockheed Aircraft Corp., 201 So.2d 743,

rev'd on rehearing, 201 So.2d 749 (Fla. 1967); Kilmer v.

Gustason, 211 F.2d 781 (5th Cir. 1954). See also, Franklin

Supply Co. v. Tolman, 454 F.2d 1059 (9th Cir. 1972) (in

an action brought in U.S. District Court in California

App. 1

against an accounting firm for a faulty audit in Venezuela,

held, alternatively, California law governed choice of

law of punitive damages; under California’s “most

significant relationship” test, Venezuela had most

significant relationship to occurrences involved in punitive

damage issue; and since Venezuela law did not recognize

punitive damages, they were not proper); James, supra.

Shakespeare’s argument was rejected by the District

Judge, and the New York law of punitive damages was

held to apply (App. 56, 59-60, R. 557, 560-561). If the

District Court was in error in this regard, and if the

Japanese law applies to the issue of punitive damages,

then an award of punitive damages is precluded in this

case, and the judgment notwithstanding the verdict

ought to be affirmed in this respect.

C. Because An Award Of Punitive Damages

Is Precluded As A Matter Of Law In This

Case, The District Court’s Judgment

Notwithstanding The Verdict Ought To

Be Affirmed As to Punitive Damages, Even

If It is Reversed As To Liability And

Compensatory Damages.

App. 2