Petition — PRC Harris, Inc. v. Boeing Co.

83-251

|

Office - Supreme Court, U.S.

FILED

AUG 16 1983

No.

=— e STEVAS.

CLERK

Is THE

Supreme Court of the United States

October Term, i983

PRC HARRIS, Inc.,

Petitioner,

THE BOEING COMPANY,

Respondent.

Ow a Wert or CERTIORARI TO THE UNITED States Court

OF APPEALS FOR THE SEcoND CIRCUIT

PETITION FOR CERTIORARI

Gary A. WoopFIELD

Gapssy & HannaH

437 Madison Avenue

New York, NY 10022

(212) 759-9030

Counsel for Petitioner

Harry H. Wise, III

Of Counsel

August 13, 1982

QUESTIONS PRESENTED

1. Rule 41(b) of the Federal Rules

of Civil Procedure provides that certain

kinds of dismissal will operate as "an

adjudication upon the merits" unless the

dismissing judge "otherwise specifies"

in the order of dismissal. When the

Court of Appeals for the Second Circuit

held in this case that the rule applies

to a prior dismissal in another juris-

diction based on the bar of that jurisdic-

tion's statute of limitation, did it fail

to heed this Court's nolding in Costello

v. United States, 365 U.S. 265, 81 S.Ct.

545, 5 L.Ed.2d 551 (1961) that the rule

does not apply to dismissals "which are

based on a plaintiff's failure to comply

with a precondition requisite to the

Court's going forward to determine the

merits of his substantive claim," 365

U.S. at 285, 81 S.Ct. at 545, 5 L.Ed2d

at 564, but only to those cases where the

defendant "must incur the inconvenience

of preparing to meet the merits because

there is no initial bar to the Court's

reaching them" 365 U.S. at 286, 81 S.Ct

at 545, 5 L.Ed2d at 565?

2. If this common-law breach of

contract case could have been heard on

the merits in the state trial court where

it was pending, did it violate the

principles of judicial federalism that

inform Erie Rail Road Co. v. Tompkins

and its progeny when the Second Circuit

ii

upheld the case's removal from state

court and the granting of summary

judgment for defendant on a procedural

ground that not only would not be

followed by the state court but is not

recognized in other circuits?

3. Does it violate principles of

due process and full faith and credit

if a court both refuses to hear a case

on the merits and deprives the plaintiff

of his right to present his case in

another forum that would otherwise

entertain it, absent either misconduct

or waiver on the part of the plaintiff?

4. If Rule 41(b) is held to apply

to a statute-of-limitation dismissal,

thus justifying the district court's

iii

grant of summary judgment in this case

on res judicata grounds, was it an

abuse of discretion for the Second

Circuit to refuse to recognize an

amendment of the prior judgment,

obtained while the grant of summary

judgment was on appeal, that made it

clear that the prior dismissal was

"without prejudice"?

iv

TABLE OF CONTENT

Questions Presented........cccccccece

TORLO GE ABUHOSL CLOSE: 6 bo dccaccvceenc

[MO COINLONS BOLO. cd cone cc cvucecsee

GUE ITEORCCL UN s kc eke ee oak oe kee ee

MEO TOVOSWOG so ce ccc abieeecaetenwtes

Designation of Corporate

POLECIORONEOO o 65. ck 066s ce carcnd newer

peatement of the CagO@.< cc ancecisenen

eS <.s vbks eee tee ees eee ee eee

POINT I

THE DECISION BELOW CON-

FLICTS WITH THIS COUPT'S

HOLDING IN COSTELLO V.

UNITED STATES AND CREATES

A SPLIT AMONG THE CIRCUITS....

A. The Decision Below Conflicts

With a Decision of this Court..

B. The Decision Below Creates a

Split Among the Circuits eee

POINT II

THE DECISION BELOW SHOULD

BE SUMMARILY REVERSED ocenesee an

sR Le” are ares eee ee oe ee 29

APPENDIX

PAGE

Opinion of the Court of Appeals

For the Second Circuit Dated

February 18, 1983....cccccccccceceee Al

Decision of the Court of Appeals

For the Second Circuit entered

May 18, 1983, Denying Petition

For a Rehearing En Banc.....seeeee+ Al2

Decision and Order of District

Judge Kevin T. Duffy entered 8/12/82

Granting Summary Judgment for

Defendant The Boeing Company....... Al4

Judgment entered in the Southern

District of New York on August 19,

1982 dismissing the action with

prejudice and awarding attorneys'

SOB ccccccccccceccccccsccccscccses ALS

Order of Chief Judge Walter T.

McGovern, Western District of

Washington, dated September 21,

1981, granting Defendants Motion

CH DEORE GB ss ccc cers cscctessesacess oo, AD

Judgment of Dismissal entered in

the Western District of Washington

GP SQPCOMGEr Sh, EBL vcccicccccers

Order of Chief Judge Walter T.

McGovern, Western District of

Washington, entered on September 20,

1982, Granting Plaintiff's Motion

for Relief Under Rule 60......ee00.

Judgment entered in the Western

District of Washington on

September 20, 1982, dismissing

action without prejudice.....cesees

Statement of Corporate Affiliates..

vii

A29

A3l

A35

A37

”

TABLE OF ApTHORITIES

Baker v. Gold Seal Liquors,

Inc., 417 U.S. 467, 94 S.Ct.

2504, 41 L.Ed.2d 243 (1974) . = +

Bertha Building Corp. Vv.

National Theatres Corp., 248 F.2d

833 (2a Cir. 1957), cert. denied,

356 U.S. 936, 78 S.Ct. 2a P

2? L.B424 811 (1958) . « « «,e «

Carter v. McGowan, 524 F.Supp.

119 (D. Nev. 1981). . « «+ «© « »

Cosentino v. Local 28, Int'l

Org. Of Masters, Mates and

Pilots, 268 F.2d 648 (8th Cir.

Costello v. United States, 365 U.S.

365, 681 S.ct. 545, 5 L.Bd.2d

Tl 8} ry Oy : ;

DeCrosta v. A. Reynolds Constr. &

Supply Corp., aI-N-Y.2d 1100, 396

N.Y¥.S.2d 357, 364 N.E.2d 1129

C1997) «2 0 e. 6 2 ae Reeves ee

551

Hartmann v. Time, Inc., 166 F.2d 127

(3rd Cir.), cert. denied, 334 U.S.

838, 68 S.Ct. 1495, 92 L.Ed. 1763

(1948). . . o . . . . . . . . . .

Henson v. Columbus Bank and Trust

Co., 651 F.2d 320 (5th Cir. 1981) .

viii

25

16

20

20

12, 13,

14, 22

23

19

19

Cases Page

Hernandez Jiminez v. Calero

Toledo, 576 F.2d 403 (ist Cir.

1978). . . . . . . . . . . . . . . 19

Johnson Vv. Boyd-Richardson Co.,

6350 F.2d 147 eth Cir. 1981) er eae

Bink v. Wabash R. Co., 370 U.S. 626,

62 S.Ct. 1386, 8 L Ed.2d 734 (1962). 25

Logan v. Zimmerman Brush Co., 455

U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d

265. . . . . . . . . . . . . . . ° . 25

Madden v. Perry, 264 F.2d 169 (7th

Cir.) cert. enied, 360 U.S. 931,

79 S.Ct. 1450, 3 L.Ed.2d 551 (1961). 20,

Matter of Emergency Beacon Corp.,

666 F.2a 754 3a oe BeeLls 2 « © « 18

McCarney v. Ford Motor Co., 657 F.2d

230 ath tL ~~~ or. . . . ..., 13

Nasser v. Isthmian Lines, 331 F.2d

POPES RMOET . . 4. 6. . « « « « 2

Sack v. Low, 478 F.2d 360, 364

(1973) . o . . . . . . . . . . . 2 . 16

Saylor v. Lindsley, 391 F.2d 965

(2d ‘ag Oa 1968) . 7 . . . 7 . . . - . 21

Societe Internationale v. Brownell,

Dat, Gsbs 2Bt, 78 S.Ct. — a ane

i eee CRee) 6 «© « © « i ets 2e

ix

Cases Page

United States v. Costello, 275

F 9a 355 (2d Cir. 1960), aff'd,

265 0.8. 265, 81 8.Ct. 534,

56 L.Bd.24 551 (1961) . © © = © © © » 21

Warner v. Buffalo Drydock Co., 67

F.2q 540 (20 Cir. 1933), cert.

denied, 291 U.S. 678, 54 S.Ct.

529, 78 L.Ed. 1066 (1934). ». » + + + 2

Weissinger v. United States, 423

F.2d LE (Sth Cir. 1970) (en

4 ey eae ae fe lod LAS Oe eee san?

Western Coal and Mining Co. v.

Jones, 27 Cal.2d B19, 167 P.2d

719 (1946) (en banc) . «+ + + «© « » 15

Weston Funding Corp. v. Lafayette

Towers, Inc., 590 F.2d 710 (2d Cir.

TOTUR c s oa oe ee ee ee

Other Authorities

Sule 61 (db) PREP. ccocccsceceoess « «8 3

1B Moore's Federal Practice 40.409[6]

at p. 1035 n. 13 (2d Ed. EGGS) a a ce

1B Moore's Federal Practice 40.409[6)] 15, 18,

(1983) . o . . o @ @ . . ° o . . ° o 21

9 Wright & Miller, Federal Practice

and Procedure, §2373 (1971). .... 14

Restatement of Judgments §49 ....- 15

Cases

Restatement (2d) Judgments §19

Restatement (2d) Conflict of Laws §110

Annot.

164 A.L.R.

693 (1946) . .

R. E. Degnan, Federalized Res

(1976).

Judicata,

85 Yale L.J. 741

Hart and Wechsler's The Federal

Courts and the Federal System

PP.

733-34 n.

(8)

(2d Ed.

xi

1973).

.

24

23

No.

IN THE SUPREME COURT OF THE UNITED

STATES

October Term, 1982

PRC HARRIS, INC.,

Petitioner,

v.

THE BOEING COMPANY,

Respondent,

Petition for Writ of Certiorari

to the United States Court of

Appeals for the Second Circuit

THE OPINIONS BELOW

The opinion of the Court of Appeals

of which review is soucht is reported

at 700 F.2d 893. The district court's

opinion is reported at 545 F.Supp. 438.

Both opinions are included in the

Appendix.

JURISDICTION

The opinion of the Court of Appeals

was filed on February 18, 1982. (Al)

A timely petition for rehearing @#n banc

was denied on May 18, 1983 (Al2). This

Court's jurisdiction is invoked pursuant

to 28 U.S.C. §1254(1).

RULE INVOLVED

Rule 4l1(b) of the Federal Rules

of Civil Procedure:

(b) Involuntary Dismissal:

Effect Thereof. For failure

of the plaintiff to prosecute

or to comply with these rules

or any order of court, a

Aefendant may move for dismissal

of an action or of any claim

against him. After the plain-

tiff, in an action tried by

the court without a jury, has

completed the presentation of

his evidence, the defendant,

without waiving his right to

offer evidence in the event the

motion is not granted, may move

for a dismissal on the ground

that upon the facts and the law

the plaintiff has shown no

right to relief. Tne court as

trier of the facts may then

determine them and render judg~-

ment against the plaintiff or

may decline to render any judg-

ment until the close of all the

evidence. If the court renders

judgment on the merits against

the plaintiff, the court shall

make findings as provided in

Rule 52(a). Unless the court

in its order for dismissal

otherwise specifies, a dis-

missal under this subdivision

and any dismissal not provided

for in this rule, other than a

dismissal for lack of juris-

diction, for improper venue,

or for failure to join a party

under Rule 19, operates as an

adjudication upon the merits.

DESIGNATION OF CORPORATE RELATIONSHIPS

Petitioner, PRC Harris, Inc., states

that this is its original Designation of

Corporate Relationships and that since

this action was commenced it has become

the PRC Harris division of PRC Engineering,

Inc., a wholly-owned subsidiary of Planning

Research Corporation. A list of affiliated

entities is included at the end of the

Appendix.

STATEMENT OF THE CASE

This is a breach-of-contract

action that was brought in the Supreme

Court of the State of New York, County

of New York, and removed to the United

States District Court for the Southern

District of New York on the basis of

diversity of citizenship. Petitioner

is the plaintiff in this action.

Prior to bringing this action,

plaintiff had asserted the same claim

in the United States District Court for

the District of Columtia. That action,

after transfer pursuant to 28 U.S.C.

§1404(a) to the District Court of the

Western District of Washington, was dis-

missed, on the srounds that it had been

=-5-<

brought beyond the District of Columbia's

three-year statute for breach-of-contract

actions, which applied because the action

had been commenced there. A copy of that

decision is included in the Appendix

to the Petition (Al9) as is the judg-

ment of dismissal (A29). This action

was then commenced in New York, which

has a six-year statute for breach-of-

contract actions. Section 213, N.Y.

Civil Practice Law and Rules. After

removal, defendant immediately moved

for summary judgment, arguing that

Rule 41(b) of the Federal Rules of Civil

Procedure rendered the prior dismissal

a decision "on the merits", since the

order of dismissal had not specified

that the dismissal was "without prejudice."

Plaintiff argued that the Rule does not

apply to dismissals based on a preliminary

ground that prevents a consideration of

the merits, and that an order that

specifies that it is based solely on

a statute of limitation does in fact

specify that it is not on the merits.

Alternatively, plaintiff asked the

district judge for a stay of decision

to allow an application to the district

judge who had dismissed the prior action

for a clarification of his decision.

The district court denied (by implica-

tion) the request for a stay, granted

summary judgment for defendant and

ordered plaintiff to pay costs and

attorneys' fees totaling $2,135. (Al4-19)

Plaintiff then commenced an appeal to

the Court of Appeals for the Second Circuit,

and also moved in the Western District of

Washington, pursuant to Rule 60(b) FRCP,

for an amendment of the prior judgment of

dismissal. The motion was granted, in an

order that stated that the prior dismissal

"was not an adjudication on the merits and

is without prejudice to the plaintiff's

right to bring another action in another

jurisdiction upon the actions from which

their (sic) claims herein arise, subject to

the appropriate statute of limitations of

such other jurisdiction.” (A31, 32)

An amended judgment was entered dismis-

sing the action "without prejudice." (A35).

Defendant did not appeal.

In the Second Circuit, plaintiff

argued again that Rule 41(b) should not

apply to a statute-of-limitation dismissal.

Alternatively, it argued that the amend-

ment of the prior judgement of dismissal

to clarify that it was "without prejudice"

should mandate the vacating of the summary

judgment now shown to have rested on a

misinterpretation of the intent of the

prior dismissal.

Rejecting both arguments, the

appellate court upheld the grant of

Summary judgment, although it reversed

the award to attorneys' fees. (Al-11)

The court held that Rule 41(b) does render

a statute-of-limitation dismissal an

adjudication "on the merits" unless the

dismissing judge adds the words "without

prejudice" to his order of dismissal.

The panel differed on their reasons for

refusing to recognize the amended judg-

ment of dismissal. The majority rested

on its decision that the district judge

for the Western District of Washington

should not have granted the Rule 60(b)

motion (A8) (positing, erroneously,

that the motion had been made under Rule

60(b)-6 [A7]; in fact no section was

specified. [see (A31l)). Concurring,

Judge Newman stated he would not con-

sider whether the granting of the Rule

60(b) motion was error, but would hold

simply that a plaintiff who "elects"

to "forego" amending the prior judgment

until after the entry of summary judgment

-l10-

in the Southern District should not

expect the Second Circuit to "reward

his tardiness." (All n.2)

Plaintiff then petitioned for a

rehearing en banc, but the petition was

denied. (Al2) This petition followed.

-ll-

ARGUMENT

Point I

THE DECISION BELOW CON-

FLICTS WITH THIS COURT'S

HOLDING IN COSTELLO V.

UNITED STATES AND CREATES

A SPLIT AMONG THE CIRCUITS

A. The Decision Below Conflicts With a

Decision of this Court

In Costello v. United States, 365 U.S.

265, 81 S.Ct. 545, 5 L.Ed.2d 551 (1961) this

Court held that Rule 41(b), which renders

certain dismissals adjudications "on the

merits" unless the dismissing court other-

wise specifies in the order of dismissal,

does not apply to dismissals "which are

based on a plaintiff's failure to comply

with a precondition requisite to the

Court's going forward to determine the

-12-

merits of his substantive claim," 365 U.S.

at 265, 81 S.Ct. at 545, 5 L.Ed.2d at 564,

but only to those cases where the

defendant "must incur the inconvenience

of preparing to meet the merits because

there is no initial bar to the Court's

reaching them." 365 U.S. at 286, 81

S.Ct. at 545, 5 L.Ed.2d at 545. That

holding has since been applied in a

variety of situations in which the prior

dismissal was based upon an initial bar

to plaintiff's presentation of the merits

of his claim. See, e.g., McCarney v.

Ford Motor Co., 657 F.2d 230, 234 (8th

Cir. 1981); Johnson v. Boyd-Richardson

Co., 650 F.2d 147, 148 (8th Cir. 1981);

Weissinger v. United States, 423 F.2d

795, 798-99 (Sth Cir. 1970) (en banc);

-13-

see generally 9 Wright & Miller, Federal

Practice and Procedure, §2373 (1971).

In this case, the opinion below recognized

that the first dismissal of petitioner's

claim, on the basis of a local statute

of limitation "did not entail a con-

sideration of the substantive issues

raised" (A4) but failed to follow this

Court's interpretation of the rule,

asserting that Costello was "“inapposite”

because Costello "did not consider a

dismissal on statute of limitations

grounds." (A5 n.2) This is not a

principled treatment of Costello, and

that decision mandates reversal of the

decision below.

It has long been recognized at

common law that a dismissal on the grounds

-14<

of a local statute of limitation is not

a decision on the merits and leaves the

plaintiff free to sue in a jurisdiction

with a longer statute. See Warner v.

Buffalo Drydock Co., 67 F.2d4 540, 541-43

(2d Cir. 1933), cert. denied, 291 U.S.

678, 54 S.Ct. 529, 78 L.Ed. 1066 (1934);

Western Coal and Mining Co. v. Jones,

27 Cal.2d 819, 167 P.2d 719, 724 (1946)

(en banc); Restatement (2d) Conflict of

Laws §110 and Id. Comment (a); Restate-

ment (2d) Judgments §19 and Id. Comment

(f); Restatement of Judgments §49 and

Id. Comment (a); see generally, Annot.,

164 A.L.R. 693 (1946); 1B Moore's Federal

Practice %0.409[6] (1983).

The first hint that the Second

Circuit would hold that the common-law

-15-

rule had been altered by Rule 41(b) FRCP

came in Bertha Building Corp. Vv. National

Theatres Corp., 248 F.2d 833, 841 (2d

Cir. 1957), cert. denied, 356 U.S. 936,

78 §.Ct. 777, 2 L.Ea2ad 811 (1958). In

dicta, over the dissent on other grounds

of Learned Hand, the court said that the

common-law rule had been "superseded" by

Rule 4l1(b). 67 F.2d at 840.

That decision pre-dated Costello.

The second time the question came before

the Second Circuit, in Sack v. Low, 478

F.2d 360 (2a Cir. 1973) Judge Friendly

wrote that the "remarks" in Bertha

Building caused him "discomfort," 478

F.2d at 364, but said he was compelled

to follow them. There was no discussion

of Costello, but the result in that case

-16-

was the same as if Costello had been

followed--i.e., the plaintiff was allowed

ng his second suit--because while the

appeal was pending plaintiff had obtained

a modification of the prior dismissal

to add the words "without prejudice."

These two decisions were condemned

in prior editions of Moore's Federal

Practice as "unfortunate," 1B Moore's

Federal Practice 40.409[6] at p. 1035

n. 13 (2d Ed. 1982), but such criticism,

and the reservations of Judge Friendly,

were forgotten in the decision below,

Judge Kaufman referring only to "[t]he

longstanding rule in this Circuit." (A4)

The current edition of Moore's

Federal Practice simply juxtaposes the

Second Circuit decisions and this Court's

opinion in Costello, suggesting the

incompatibility. See 1B Moore's Federal

Practice 0.409[(6] at 239-41 (1983).

The Second Circuit rule also violates

the dictates of common sense, since it

suggests that a district judge has an

option to dismiss "with prejudice" or

"without prejudice" in this situation.

B. The Decision Below Creates a Split

Among the Circuits

The Court of Appeals for the Fifth

Circuit has noted the (prior to the

decision in this case) apparent rule in

the Second Circuit concerning federal-

court dismissals on statute-of-limitations

-18-

grounds and specifically rejected it.

Henson v. Columbus Bank and Trust Co.,

651 F.2d 320, 324 n.3 (5th Cir. 1981).

In addition, in the Third Circuit it

has been held that a federal-court

dismissal on the basis of a local

statute of limitations, even if it

purported to be "on the merits," could

not bar a subsequent suit in another

forum with a longer statute. Hartmann

vy. Time, Inc., 166 F.2d 127, 138 n.1?7

(3rd Cir.), cert. denied, 334 U.S. 838,

68 S.Ct. 1495, 92 L.Ed. 1763 (1948);

see also, Hernandez Jiminez v. Calero

Toledo, 576 F.2d 402, 404 (lst Cir.

1978).

These cases do not explicitly

discuss the role of Rule 41(b) in such

-19-

a Gismissal, but it is firmly established

in many circuits that Rule 41(b) does not

apply where the grounds for dismissal

appearing in the order clearly show it

could not involve a determination on the

merits. See, e.g., Madden v. Perry, 264

F.2d 169, 175 (7th Cir. 1959), cert. den.,

360 U.S. 931, 79 S.Ct. 1450, 3 L.Ed.2d

551 (1961); Cosentino v. Local 28,

Int'l Org. of Masters, Mates & Pilots,

268 F.2d 648, 652 (8th Cir. 1959); see

also Carter v. McGowan, 524 F.Supp. 1119,

1121 (D.Nev. 1981). Indeed, Costello

has been followed by the Second Circuit

in decisions that are clearly inconsistent

with the decision below. See Weston

Funding Corp. v. Lafayette Towers, Inc.,

550 F.2d 710, 713-14 (2d Cir. 1977);

Saylor v. Lindsley, 391 F.2d 965, 969

(2a Cir. 1968); Nasser v. Isthmian Lines,

331 F.2d 124, 127 (2d Cir. 1964); see

also; United States v. Costello, 275 F.2d

355, 362 (2d Cir. 1960), aff'd 365 U.S.

265, 81 §.Ct. 534, 5 L.Ed.2d 551 (1961).

The conflict between these decisions

and the rule applied by the Second Circuit

in this case has been noted by the leading

treatise, see 1B Moore's Federal Practice,

"0.409[6]) at 341 n.30 (1983), which

states that the conflict has now rendered

the effect of a federal-court dismissal

on statute of limitations grounds "uncer-

tain." Id. at 342. This Court can

resolve that uncertainty once and for

all in this case by reversing the decision

below, and put an end to an interpretation

of Rule 41(b) that has been described as

"unjust" and "a plain entrapment of the

plaintiff." Madden, supra, 264 F.2d at

175. Uniformity of interpretation should

be especially important in the case of the

Federal Rules of Civil Procedure.

POINT II

THE DECISION BELOW SHOULD

BE SUMMARILY REVERSED

If there were any possibility that

this Court's holding in Costello did not

mandate reversal of the decision below,

or that Costello was not correctly decided

or was not of continuing vitality, it

might be appropriate to accept this case

for a plenary hearing on the merits.

Upon such a hearing plaintiff would argue

that even if Costello aid not mandate

-22-

reversal the decision below violated the

Erie doctrine since the case could have

been heard on the merits in the New York

courts, because under the law of New York

a prior statute-of-limitation dismissal

is "on the merits" only in the jurisdiction

of the dismissal, see DeCrosta v. A.

Reynolds Constr. & Supply Corp., 41 N.¥.2d

1100, 1101-02, 396 N.¥.S.2d 357, 359,

364 N.E.2d 1129 (1977) (citing with

approval Restatement of Judgments §49,

Comment a), and New York would be expected

to follow Costello rather than the Second

Circuit's aberrational rule. See generally,

Hart and Wechsler's The Federal Courts

and the Federal System, pp. 733-34 n. (8)

=23-

Plaintiff would argue that the

decicicn below violates the full faith

and credit doctrine as it applies to

federal court interpretations of prior

federal decisions, see generally R.E.

Degnan, Federalized Res Judicata, 85 Yale

L. J. 741 (1976), because the Second

Circuits decision gives the decision of

the District Court for the Western District

of Washington a different effect than it

would have in the Ninth Circuit. It would

argue that the decision below deprives

petitioner of property, its breach-of-

contract cause of action, without due

process, since a court cannot both refuse

to hear a claim and bar plaintiff from

asserting it elsewhere absent either waiver,

(i.e., failure to assert the claim where

=24-

an opportunity to do so is given), see,

e.g., Baker v. Gold Seal Liguors, Inc.,

417 U.S. 467, 468 n.l, 94 S.Ct. 2504,

2506 n.l, 41 L.Ed.2d 243 (1974) (com-

pulsory counterclaim rule), or miscon-

duct see Link v. Wabash R. Co., 370

U.S. 626, 629-30, 82 S.Ct. 1386, 1388,

8 L.Ed2d 734 (1962) (dismissal with

prejudice for failure to prosecute),

without violating the dictates of Due

Process. See Logan v. Zimmerman Brush

Co., 455 U.S. 422, 429, 102 S.Ct. 1148,

1154, 71 L.Ed.2d 265, 273-74 (1982);

Societe Internationale v. Brownell,

357 U.S. 197, 209, 78 S.Ct. 1087, 1094,

2 L.Ed.2a 1255 (1958). Finally, plain-

tiff would argue that the Second Circuit

should have recognized the amendment of

the prior judgment obtained while this

case was on appeal and vacated the grant

of summary judgment.

These arguments raise complex issues

that would be appropriate for plenary

consideration. There is no need for

such consideration, however, if this

Court agrees with petitioner that

Costello mandates reversal of the

decision below. If so, summary reversal

is appropriate. Plaintiff, which brought

this small breach-of-contract action in

New York state court, has been forced,

because of the refusal of the courts

below to following the clear holding

of this Court in Costello, to take a

costly appeal to the Second Circuit and

-26-

order to reverse an award of attorneys'

fees and to vindicate its right to bring

a timely lawsuit asserting a breach-of-

contract claim the merits of which have

never been considered. It would best

serve both the litigants and the courts

if Costello were applied to summarily

reverse the decision below and allow

this action to proceed to its long-

postponed hearing on the merits.

CONCLUSION

Since the decisiun below conflicts

with a holding of this Court, and creates

a split among the circuits with respect to

a Federal Rule of Civil Procedure, this

a27<

petition should be granted and the

Gecision below reversed.

Respectfully submitted,

GARY A. WOODFIELD

Attorney for Petitioner

GADSBY & HANNAH

437 Madison Avenue

New York, New York 10022

(212) 759-9030

Harry H. Wise, III

Of Counsel.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

+

No. 595—August Term, 1982

(Argued January 7, 1983 Decided February 18, 1983)

Docket No. 82-7658

—>

PRC Harris, INC.,

Plaintiff-Appellant,

—against—

THE BOEING COMPANY,

Defendant-Appellee.

Before:

KAUFMAN, TIMBERS, and NEWMAN,

Circuit Judges.

+

Appeal by the plaintiff from a judgment entered on an

order of the United States District Court for the Southern

District of New York, Kevin T. Duffy, Judge, holding the

plaintiff's cause of action for breach of contract barred

by res judicata.

1933

Al

Affirmed in part, reversed and remanded in part.

Judge Newman concurs in a separaie opinion.

+

Harry H. Wise, III, New York, New York

(Gadsby & Hannah, of Counsel), for

Plaintiff-Appellant.

MELVIN A. SCHWARTZ, New York, New York

(Dechert, Price & Rhoads, of Counsel),

for Defendant-A ppellee.

$<

KAUFMAN, Circuit Judge:

This appeal from a judgment entered on Judge Duffy’s

order raises an unusual issue concerning the application

of res judicata. That doctrine is rooted, of course, in

considerations of finality and repose, and bars relitigation

of issues which were or could have been adjudicated in an

initial proceeding.

I

The facts underlying this dispute may be recounted

briefly. PRC Harris, Inc. (“Harris”), an engineering firm,

filed an action against The Boeing Company in the

District of Columbia district court in April 1980, alleging

failure to pay for services rendered. In October 1980 the

case was transferred to the Western District of Washing-

ton on Boeing’s motion. Chief Judge McGovern granted

Boeing’s motion for dismissal on September 21, 1981,

1934

A2

holding the action time-barred pursuant to the applicable

three year District of Columbia statute of limitations.

Harris did not appeal this determination.

In May 1982 Harris filed a complaint in New York

State Supreme Court, which it concedes is virtually identi-

cal to that filed in the initial action. Boeing responded by

filing a petition pursuant to 28 U.S.C. § 1441, seeking to

have the cause removed to the Southern District of New

York. After removal Boeing petitioned for summary judg-

ment, asserting that the dismissal in Washington operated

as an adjudication on the merits, and that consideration

of the subsequent suit was therefore prohibited by res

judicata. Judge Duffy granted Boeing’s motion, dis-

missed the action, and awarded Boeing attorney’s fees in

the amount of $2,135. Harris filed a timely notice of

appeal to this court.

After its action had been dismissed by Judge Duffy and

the notice of appeal was filed, Harris returned to the

Western District of Washington and petitioned Chief

Judge McGovern to amend the judgment entered on his

order. The district judge granted the motion, and pur-

suant to Fed. R. Civ. P. 60(b)(6) amended the judgment

to specify that the dismissal was without prejudice.

Harris raises a number of claims on this appeal. It

contends, first, that Judge Duffy improperly held the

initial Washington judgment to be an adjudication on the

merits to which res judicata attached. Alternatively,

Harris asserts that the subsequent modification of the

Washington judgment undercuts the basis for Judge

Duffy’s holding. Finally, appellant challenges the award

of fees to Boeing’s counsel.

1935

I]

Fed. R. Civ. P. 41(b) governs the effect given involun-

tary dismissals. In relevant part, the Rule states, “Unless

the court in its order for dismissal otherwise specifies, a

dismissal . . . other than a dismissal for lack of jurisdic-

tion, for improper venue, or for failure to join a party

under Rule 19, operates as an adjudication upon the

merits.” In such a situation, res judicata would preclude a

subsequent action on the same claim. See Elfenbein v.

Gulf & Western Industries, Inc., 590 F.2d 445, 449 (2d

Cir. 1978) (per curiam); La Societe Anonyme des Parfums

Le Galion v. Jean Patou, Inc., 495 F.2d 1265, 1275 (2d

Cir. 1974).

In the instant dispute the initial dismissal of Harris’s

complaint did not entail a consideration of the substan-

tive issues raised, because Chief Judge McGovern’s action

was based upon his conclusion that the contract claims

were barred by the statute of limitations. The longstand-

ing rule in this Circuit, however, is that a dismissal for

failure to comply with the statute of limitations will

operate as an adjudication on the merits, unless it is

specifically stated to be without prejudice.’ See Bertha

Building Corp. v. National Theatres Corp., 248 F.2d 833,

! Harris asserts that application of Rule 41(b) to dismissals on statute

of limitations grounds in a diversity case would raise potential consti-

tutional problems under the “Erie doctrine,” see Erie Railroad v.

Tompkins, 304 U.S. 64 (1937), because it would have the effect of

abrogating state substantive law. This court explicitly considered and

rejected such a claim in Kern v. Hettinger, 303 F.2d 333, 340 (2d Cir.

1962), noting that while state law controlled theFiehts and obligations

of the parties, determining the res judicata effect that will be given the

judgment of a federal court is distinctively a matter of federal law. See

also Degnan, Federalized Res Judicata, &§ Yale L..J. 741 (1976).

Accordingly, we reject Harris's claim

1936

A4

840 (2d Cir. 1957); Sack v. Low, 478 F.2d 360 (2d Cir.

1973). See also Murphy v. A/S Sobral, 187 F. Supp. 163

(S.D.N.Y. 1960) (concerning a dismissal for laches);

Wachovia Bank & Trust Co. N.A. v. Randell, 485 F.

Supp. 39 (S.D.N.Y. 1979). Moreover, Rule 41(b) dictates

that all but certain enumerated dismissals will be consid-

ered “on the merits,” and the Rule does not exempt a

dismissal on statute of limitations grounds from its

general operation.* Appellant has advanced no persuasive

grounds for departing from the clear terms of 41(b), and

accordingly, we reject its assertion that the September 21,

1981 judgment allowed relitigation of the issues raised in

that proceeding.

The unusual aspect of this case arises as a consequence

of Chief Judge McGovern’s amendment of his judgment

after Judge Duffy had already granted Boeing’s motion

for summary judgment and dismissed Harris’s claims. It

is clear that if, at the time of entry, the Washington

judgment had been denominated “without prejudice,”

Rule 41(b) would have been inapplicable, and Harris

could legitimately have reasserted its allegations in

another jurisdiction. See Elfenbein v. Gulf & Western

Industries, Inc., supra. The issue before us is not pre-

sented in such pristine form, however. The original Wash-

ington decision did not purport to dismiss the claims

without prejudice, and Harris successfully amended that

: Costello v. United States, 365 U.S. 268, 284-88 (1961), upon which

Harris relies is similarly inapposite. In Costello the court merely held

that a dismissal caused by petitioner's failure to file a required

affidavit of good cause was, in effect, a dismissal for lack of jurisdic-

tion, one of the specific exceptions to Rule 41(b). The decision did not

consider a dismissal on statute of limitations grounds, and indeed, our

decision in Sack ». Low, 478 F.2d 360 (2d Cir. 1973), holding that such

an action was covered by 4i(b) was rendered after the Costello

opinion

1937

A5

judgment only after the completion of the action in the

Southern District of New York.

Harris moved to amend the Washington judgment

pursuant to Federal Rule 60, which provides that a party

may petition for “relief from [a] judgment or order” on a

series of enumerated grounds, or “for any other reason

justifying relief from the operation of the judgment.”

Fed. R. Civ. P. 60(b)(6). This provision does not impose a

particular time limit, but only requires that the motion be

made within “a reasonable time.” In considering whether

a Rule 60(b)(6) motion is timely, we must scrutinize the

particular circumstances of the case, and balance the

interest in finality with the reasons for delay. Amoco

Overseas Oil Co. v. Compagnie Nationale Algerienne De

Navigation, 605 F.2d 648 (2d Cir. 1979); Ashford v.

Steuart, 657 F.2d 1053 (9th Cir. 1981)(per curiam).

Harris has presented no persuasive reasons to justify

the delay of almost one year in moving for amendment of

the Washington judgment. The clear terms of Rule 41(b)

should have made it apparent that some clarification of

Chief Judge McGovern’s order would have been neces-

sary if Harris intended to raise its contract claims in some

other forum. Harris, however, filed a second complaint,

saw the case removed to a federal court, opposed a

motion for summary judgment, and even proceeded to

appeal by filing a notice before it ultimately decided to

return to Washington and seek clarification of the Sep-

tember 21 judgment. Moreover, after obtaining an

amendment of the judgment, Harris did not return to the

Southern District of New York to attempt to present this

new evidence to the district judge, but chose to raise the

issue for the first time before this court. It is difficult,

therefore, to view Harris as having complied with the

reasonable time requirement of Rule 60(b)(6).

1938

A6é

In previous situations in which we have had the oppor-

tunity to elaborate on the requirements of 60(b)(6), we

have noted that because of the potentially broad scope of

that provision, relief should only be granted where the

moving party has demonstrated “extraordinary circum-

stances” or “extreme hardship.” See, e.g., United States

v. Cirami, $63 F.2d 26, 32 (2d Cir. 1977); see also

Kiapprott v. United States, 335 U.S. 601, 613 (1949);

Ackermann vy. United States, 340 U.S. 193, 197 (1950).

Harris has not presented us with any special circum-

stances which would justify the extraordinary relief pro-

vided for by Rule 60. It appears that Harris’s delay in

moving for amendment resulted from its failure to under-

stand the effect of Rule 41(b). This is an insufficient basis

for relief from a judgment pursuant to Rule 60. See

United States v. Erdoss, 440 F.2d 1221, 1223 (2d Cir.),

cert. denied, 404 U.S. 849 (1971).

We are also doubtful of the propriety of Harris’s

motion for amendment of the judgment pursuant to Rule

60. Rule 60(b)(6) is a broadly drafted “umbrella provi-

sion,” which must be read in conjunction with the other

sections of that Rule, and is applicable only where the

more specific provisions do not apply. See Amoco Over-

seas Oil Co. v. Compagnie Nationale Algerienne De

Navigation, supra, 605 F.2d at 656 n.8; United States v.

Cirami, supra, 563 F.2d at 22: Corex Corp. v. United

States, 638 F.2d 119, 121 (9th Cir. 1981). It is also

reasonable to view 60(b)(6) together with Rule $9, which

specifically addresses the issue of amending a judgment.

United States v. Hall, 463 F. Supp. 787, 791 n.1 (W.D.

Mo.) (on motion for review of judgment), aff'd, 588 F.2d

1214 (8th Cir. 1978). Rule 59(e), which imposes a strict

ten-day time limit, would more appropriately have been

employed in the present case to amend the Washington

1939

A?

judgment. Sack v. Low, supra, 478 F.2d at 362-63 n.1.

Of course, a motion pursuant to Rule 59 would not have

been timely because Harris did not seek clarification of

Chief Judge McGovern’s judgment within ten days.

Harris, however, should not be able to circumvent the

time requirement of Rule $9 by relying on Rule 60 which,

in any event, would not save the action. See Hahn vy.

Becker, $51 F.2d 741, 745 (7th Cir. 1977).

Accordingly, it is our view that Chief Judge McGovern

improperly granted Harris's motion to amend the Wash-

ington judgment. If the motion was properly made pur-

suant to Rule 60, Harris has failed to demonstrate

extraordinary circumstances which would have justified

the relief sought, particularly in light of its unreasonably

long delay in submitting the motion. Alternatively, if the

motion should have been made under Rule 5$9(e), Harris’s

failure to comply with the time requirements of that

provision would have precluded the court from entertain-

ing the motion. It is not, of course, within our power to

reverse a judgment of the Western District of Washing-

ton, but we need not recognize and defer to such a

judgment where the judicial proceedings in this Circuit

have already been terminated, after much maneuvering in

the district court. See Sack v. Low, supra, 478 F.2d at

362-63 n.1.

We therefore hold that Judge Duffy properly granted

Boeing’s motion and dismissed Harris’s complaint, and

we decline to give retroactive effect to the subsequent

3 In Sack v. Low, supra, 478 F.2d at 362-63 n.1, we allowed a

judgment to be amended to specify that it was without prejudice

pursuant to Rule 60. We carefully noted, however, that ordinarily such

a motion would have to be made under Rule $9, and only the “unusual

circumstances” of that case allowed for a departure trom this require:

ment. Jd. We see no such evidence of unique or special circumstances

in the present action.

1940

A8

amendment of the Washington judgment and thereby

undercut the legal basis for Judge Duffy’s decision.

IT]

The final issue raised is disposed of in briefer fashion.

The district court awarded Boeing $2,135 in attorney’s

fees. No reason was provided to justify this award, and

we can only assume that the district judge considered

Harris’s complaint to be frivolous.

Ordinarily attorney’s fees should not be granted to a

prevailing party in the absence of statutory authorization.

Alveska Pipeline Co. v. Wilderness Society, 421 U.S. 240

(1975). A narrow exception to this general rule exists

when the claims asserted are “entirely without color and

(have] been asserted wantonly, for purposes of harass-

ment or delay, or for other improper reasons.” Browning

Debenture Holders’ Committee v. DASA Corp., 560 F.2d

1078, 1088 (2d Cir. 1977); see also Nemeroff v. Abelson,

620 F.2d 339, 349 (2d Cir. 1980) (per curiam). Although it

may legitimately be argued that Harris’s claims were

entirely meritless, we see no indication in the record that

they were raised in bad faith or for other improper

reasons. Accordingly, we see no basis for tne award of

fees to Boeing’s counsel.

That portion of the judgment entered on Judge Duffy’s

order granting Boeing’s motion for summary judgment

and dismissing Harris’s claims as barred by res judicata is

affirmed. The judgment is reversed insofar as it autho-

rized an award of attorney’s fees to Boeing, and the case

is remanded for the entry of an amended judgment.

1941

AY

NEWMAN, Circuit Judge, concurring:

In Sack v. Low, 478 F.2d 360 (2d Cir. 1973), a District

Court in the Southern District of New York had dismissed

a claim because of res judicata, relying on a judgment of

the District Court for the District of Massachusetts. The

Massachusetts court had found the claim barred by the

local statute of limitations. While an appeal from the

Southern District’s judgment was pending, the plaintiffs

secured from the District of Massachusetts an order

amending the Massachusetts judgment to specify that the

dismissal in Massachusetts was without prejudice. In the

“unusual circumstances” of that case, id. at 362 n.1, we

ruled that the amendment of the Massachusetts judgment

was effective to permit the plaintiffs to proceed in the

Southern District, where the applicable limitations period

had not expired. Once Sack v. Low was decided, any

plaintiff suing in this Circuit, whose case had been dis-

missed elsewhere on statute of limitations grounds, was

on notice of the need to secure a “without prejudice”

notation on the prior judgment.

In this case, the plaintiff litigated in the Southern

District of New York the preclusive effect of a judgment

entered in the Western District of Washington, without

bothering to obtain a “without prejudice” notation on the

Washington judgment. Only after litigating umsuccess-

In Sack v. Low, supra, we were willing to indulge the plaintiffs with

the assumption that, despite Bertha Building Corp. v. National The-

atres Corp., 248 F.2d 833, 44 (2d Cir. 1957), cert. denied, 386 U.S.

936 (1988), they could not have been expected to anticipate, prior to

judgment in the Southern District, that the dismissal with prejudice in

the District of Massachusetts, on statute of limitations grounds, would

be held to bar their suit in the Southern District of New York. 478 F.2d

at 362 n.1. After Sack v. Low, there can be no uncertainty on that

score.

1942

Al0d

fully in the Southern District did plaintiff move in the

Western District of Washington for an amended judg-

ment. I agree that this maneuver must fail, but I would

rely simply on the fact that a judgment of dismissal was

properly entered in the Southern District of New York

before the plaintiff returned to the Western District of

Washington.” I would not assess whether the delay in

making a Rule 60(b) motion in Washington made it

inappropriate for the District Court there to grant the

motion, nor whether Rule 60(b) provided any basis for

relief. since we have no oversight authority concerning

that court.’ Focusing on whether the judgment of a

district court within our Circuit was entered before or

after another district’s “without prejudice” notation re-

sults in a rule of clarity and easy administration. It also

confines our consideration solely to the appropriateness

of the actions taken by district courts within our Circuit.

For these reasons, I concur in the result.

- The circumstances of this case are to be contrasted with a case in

which a judgment of court B is based on a judgment of court A and

the judgment of court A is reversed on appeal, while the judgment of

court B is pending on appeal. In that circumstance the appellate court

would normally set aside the judgment of court B. See Restatement

(Second) of Judgments § 16 comment c (1980). The determination that

court A’s judgment is erroneous is properly noticed on appeal from

court B’s judgment. In the instant case, however, the judgment of the

Washington Court has not been held to be erroneous; the plaintiff has

simply availed itself of an option to secure a “without prejudice”

notation. A plaintiff who elects to forgo use of that option until after

an adverse judgment has been rendered against him in another jurisdic-

tion should not expect a court of appeals to reward his tardiness. After

being late to sue in the first jurisdiction, he ought to move expedi-

tiously to maintain his opportunity to sue elsewhere.

There is no issue in this case requiring scrutiny of a judgment of

another jurisdiction to determine if the court rendering the judgment

had jurisdiction.

1943

All

INITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a stated term of the United States

Court of Appeals, in and for the Second

Circuit, held at the United States Court-

house in the City of New York, on the

eighteenth day of May, one thousand nine

hundred and eighty-three.

x

PRC HAPPTS, INC.,

Plaintiff-Appellant,

v.

THE BOEING COMPANY,

Defendant-Appellee.

x

A petition for rehearing containing a

suggestion that the action be reheard in

banc having been filed herein by counsel,

plaintiff-appellant, PRC Harris, Inc.,

Upon consideration by the panel that

heard the appeal, it is .

Ordered that said petition for rehear-

ing is DENIED.

Al2

It is further noted that the sug-

gestion for rehearing in banc has been

transmitted to the judges of the court

in regular active service and to any

other judge on the panel that heard the

appeal and that no such judge has re-

guested that a vote be taken thereon.

A. Daniel Fusaro, Clerk

by /s/ Victoria C. Dalton

Deputy Clerk

Al3

DISTRICT COURT DECISION.

PRC HARRIS, INC., Plaintiff,

v

The BOEING COMPANY, Defendant.

No. 82 Civ. 3284 (KTD).

United States District Court,

S. D. New York.

Aug. 12, 1982.

Action was brought to recover for engi-

neering services. Defendant moved to dis-

miss action after it was removed from state

court on diversity jurisdiction grounds.

The District Court, Kevin Thomas Duffy,

J., held that dismissa] of a prior action on

statute of limitations grounds was an adju-

dication on the merits which barred bring-

ing of the subsequent identical action in

another jurisdiction.

Ordered accordingly.

Judgment 570(5)

Dismissal! of action on statute of limita-

tions grounds was an adjudication on the

merits which barred bringing up a subse-

quent identical action in another jurisdic-

tion. Fed.Rules Civ.Proc. Rule 41(b), 2

USCA.

Gadsby & Hannah, New York City, for

plaintiff; Harry H. Wise, II], New York

City, of counse!

Al4

Dechert, Price & Rhoads, New York City,

for defendant; Melvin A. Schwarz, New

York City, of counsel.

KEVIN THOMAS DUFFY, District

Judge:

This case presents an interesting applica-

tion of the doctrine of res judicata. Plain-

tiff PRC Harris, Inc. (“Harris”), a New

York corporation, alleges that the defend-

ant Boeing Company, a Washington corpo-

ration, failed to pay $14,983.00 for engineer-

ing services rendered in the State of West

Virginia between April, 1975 and May,

1976. The instant case was originally corm-

menced in New York State Supreme Court,

New York County, on or about May 5, 1982.

Boeing subsequentiy removed the lawsuit to

this court on diversity jurisdiction grounds.

Back in 1980, Harris had filed a complaint

against Boeing in the United States District

Court for the District of Columbia seeking

inter alia the same relief sought in the

instant lawsuit. A motion for change of

venue to the Western District of Wash-

ington was subsequently granted. The fed-

era! court in Seattle, applying the three

year statute of limitation of the District of

Columbia, granted a motion by defendant

to dismiss the case on September 21, 1981.

In so doing, the court did not specify wheth-

er this dismissa) was with or without preju-

dice

Boeing now moves to dismiss the instant

action on grounds that the earlier dismissa!

of an identical complaint involving identica!

A15

parties was with prejudice, and therefore

the doctrine of res judicata bars this law-

suit. Boeing asserts that pursuant to Fed.

R.Civ.P. 41(b) the prior dismissal is assumed

to be with prejudice and “on the merits”

because the district judge did not state oth-

erwise. Boeing also moves for an award of

attorneys’ fees and costs.

Plaintiff argues, however, that under

Rule 41(b) the prior dismissal was not on

the merits. That rule provides in pertinent

part:

Involuntary Dismissal: Effect Thereof

Unless the court in its order for dismissal

otherwise specifies, a dismissal under this

subdivision and any dismissal not provid-

ed for in this rule, other than a dismissal

for lack of jurisdiction, for improper ven-

ue, or for failure to join a party under

Rule 19, operates as an adjudication upon

the merits.

Harris contends that a dismissal under the

Statute of limitations is a dismissal for “lack

of jurisdiction” and therefore not an adjudi-

cation on the merits which would bar subse-

quent suits.

I disagree. Although there does appear

to be some confusion regarding the res judi-

cata effect of a dismissal on statute of

limitations grounds, compare 5 Moore's

Federal Practice * 41.14[1] at 41-207 (2d ed.

1982; with 1B Moore’s Federal Practice

* 0.409(6) at 1035-36 (2d ed. 1982), the cur-

rent law in this and other circuits appears

to be that such a dismissal] is on the merits.

Al6

In Sack v. Low, 478 F.2d 360 (2d Cir. 1973),

the Second Circuit held that a dismissal

based on the state statute of limitations

was an adjudication on the merits unless, as

was the case in Sack, the judge in the prior

case stated the dismissal was without preju-

dice. Writing for the court, Judge Friendly

expressed “some discomfort” with affording

a judge the discretion under Rule 41(b) “to

dictate to another forum that a dismissal

should have a different effect there than in

his own court,” 478 F.2d at 365, but never-

theless permitted this result as dictated by

prior case law. Thus, Sack and other deci-

sions by this court, see, e.g., Wachovia Bank

& Trust Co. N. A. v. Randell, 485 F.Supp.

39 (S.D.N.Y.1979); Murphy v. A/S Sobral,

187 F.Supp. 163 (S.D.N.Y.1960), reaffirm

this Circuit’s position that a dismissal on

statute of limitations grounds is on the mer-

its and, if anything, call into question the

primary judge's discretionary power to say

otherwise. Accord, Cemer v. Marathon Oil

Co., 583 F.2d 830 (6th Cir. 1978).

Policy considerations also require dismiss-

al of the plaintiff's complaint. If the in-

stant case was not barred Harris would be

free to roam to other states with different

statutes of limitation where Boeing, a large

corporation, could be found present. This

result would subvert the judicial system’s

interest in having disputes finally resolved.

For the foregoing reasons, the defend-

ant’s motion is granted. The complaint is

dismissed. The motion for costs and fees is

granted.

SO ORDERED.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

ee eee eee x

PRC HARRIS, INC.,

Plaintiff, : 82 Civ. 3284 (KTD)

-against-

JUDGMENT

THE BOEING COMPANY,

Defendant.

ee a eee x

This action came on to be heard on

defendant's motion for summary judgment

and for attorneys' fees, and the Court,

Honorable Kevin Thomas Duffy presiding,

having granted said motion, it is hereby

ORDERED AND ADJUDGED that the action

be dismissed with prejudice and that

defendant recover its attorneys' fees in

the amount of $2,135 and its costs, to be

Als

taxed by the Clerk.

Dated: New York, New York, August 19, 1982

/s/ Kevin Thomas Duffy

HateDew s

JUDGMENT ENTERED 8/24/82

/s/

Clerk

Al9

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

-_-_— -— eo eo ese ee e«&e ese = =e = = lc celhUc rOr)dlr x

PRC/HARRIS, INC.,

Plaintiff, : NO. C80-1184M

Vv. : ORDER GRANTING

DEFENDANT'S

THE BOEING COMPANY, : MOTION TO

DISMISS

Defendant.

ae & oo. & te 2 a Sa ee ee Cee (ee ae eee ee x

The defendant Boeing Company built a

Personal Rapid Transit System (PRT) for the

University of West Virginia at Morgantown.

In 1973 and 1974 Boeing, the prime con-

tractor, executed two written contracts

with the plaintiff related to a Guideway

Heating System for the PRT. Under the

first contract, Harris agreed to "complete

the design of the PRT Guideway Heating

A20

System". Under the second, Harris agreed

to provide the services of one design

engineer to support Boeing at Morgantown.

The first contract contained the

following applicable law clause, which was

incorporated by reference in the second

contract:

"This contract shall be

governed by the law of

the State of Washington."

It is undisputed that Harris completed

its work under both contracts in 1974.

The complaint alleges that as of on or

before October 31, 1974, Boeing owed

Harris the sum of $417.30 for work

completed by Harris under the second

contract.

On March 1l, 1975, a "flashback

explosion" occurred in Boiler Plant No. 2

A21

of the PRT system. Boeing directed all

of the companies involved in the design,

installation and maintenance of the

boiler system to attend a meeting in

Morgantown on April 23, 1975, "for the

purpose of establishing an adequate design

fix and rework responsibility to prevent

future boiler shutdown explosions."

Boeing's directive noted that Harris'

attendance at the April meeting would be

at Harris' own expense. Complaint, para-

graph ll.

As designer, Harris agreed to attend

the meeting. Prior to the meeting, how-

ever, Harris specifically informed Boeing

that "we will expect reimbursement for

all expenses incurred by Frederic R.

Harris, Inc. in connection with this

A22

meeting" in the event that the explo-

Sion was not caused by any deficiency

in Harris' boiler plant design. Complaint,

paragraph 12. On November 21, 1975, Boeing

informed Harris that the boiler flashback

problem had not been solved, and that

further corrective measures would be

necessary. Complaint, paragraph 14,

Harris incurred substantial expenses in

attempting to assist Boeing in ascertain-

ing the cause of the explosions in Boiler

No. 2. Between March 11, 1975 and May 30,

1976, Harris incurre4 expenses of $14,983.00.

Complaint, paragraph 19.

Harris filed the instant action for

judgment in the amounts of $417.30 and

$14,983.00, plus interest, in the United

States District Court for the District of

A23

Columbia on April 16, 1980.

Boeing moved to dismiss based inter

alia upon the three-year limitations

provision of the D.C. Code §12-301(3), (7)

and (8), and for a change of venue to the

Western District of Washington. The motion

for change of venue was granted on

October 27, 1980.

This matter comes on for consideration

by the undersigned Judge ot the above-

entitled Court upon the defendant's motion

to dismiss. Relying on the applicable

law clause in the contracts, the plaintiff

contends that Washington's six-year statute

of limitations for a contract in writing,

or on express or implied liability arising

out of a written agreement, applies. R.C.W.

4.16.040(2).

A24

Boeing contends that even if

Washington's limitations provisions

apply (which Boeing denies), the plain-

tiff's principal claim for $14,983.00

for work performed on behalf of Boeing

in 1975 and 1976 to determine the cause

of the explosions in Boiler No. 2 did

not arise out of the written contracts

executed by and between plaintiff and

defendant in 1973 and 1974. For that

reason, the argument goes, Washington's

three-year limitations provision would

apply to bar the instant action.

Boeing's primary argument is that

the choice of law rules of the original

forum, the District of Columbia, must

apply, the change of venue in this

federal action notwithstanding. In the

A25

District of Columbia, questions of

limitations are procedural in nature

and governed by the law of the forum,

not as the plaintiff now contends by

an applicable law clause struck by and

between parties to the contract.

The applicable District of Columbia

limitations period is three years, under

D.C. Code §12-301(3), (7) and (8).

That in the instant circumstances the

Court must apply the limitations pro-

visions of the District of Columbia,

is clear. VanDusen v. Barrack, 376 U.S.

612, 637, 639 (1964); Schenk v. Piper

Aircraft Corporation, 377 F.Supp. 477,

(W.D. Pa. 1974), aff'd, 521 F.2d 1399

(3rd Cir. 1975) and aff'd, 557 F.2d 742

(6th Cir. 1978); and Brick v. Dominion

A26

Murtgage and Realty Trust, 442 F.Supp.

283, 299-300 (W.D. N.Y. 1977). Such a

holding is required here, the applicable

law clause advanced by the plaintiff

notwithstanding. Alaska Airlines, Inc.

v. Lockhead Aircraft Corporation, 430 F.

Supp. 134, 139 (D. Alas. 1977); and

Cleveland Lumber Company v. Proctor &

Schwartz, Inc., 397 F.Supp. 1088, 1091

(N.D. Ga. 1975).

It being the opinion of the Court

that the plaintiff's claims in the amounts

of $417.30 and $14,983.00 are time-barred

by the applicable statute of limitations,

now therefore.

IT IS ORDERED that the motion to

dismiss the action be and the same is

hereby GRANTED.

A27

The Clerk of the Court shall direct

uncertified copies of this Order to

counsel of record.

DATED this 2lst day of September,

1981.

/s/ Walter T. McGovern

WALTER T. McGOVERN

Chief United States

District Judge

A28

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

CaN as o6 Mek WE GE Gl eeotok a eo x

PRC/HARRIS, INC.,

Plaintiff, : NO. C80-1184m

v. :

JUDGMENT

THE BOEING COMPANY,

Defendant.

te Me ie ee eA eee x

This matter having come on for

consideration before the Court, Honorable

Walter T. McGovern, Chief United States

District Judge, presiding, and the

issues having been duly considered and

a decision having been duly rendered,

granting defendant's motion to dismiss,

IT IS HEREBY ORDERED AND ADJUDGED,

A29

that this action is hereby DISMISSED.

DATED this 2lst day of September,

1981.

/s/ John A. McLellan

Deputy United States District

Clerk

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

- = = == = se ese ese ese oso =e = = x

PRC/HARRIS, INC.,

Plaintiff, : NO. C80-1184M

Vv. : ORDER GRANTING

PLAINTIFF'S

THE BOEING COMPANY, : MOTION FOR RELIEF

UNDER RULE 60

Defendant. :

ee ee ee x

THIS MATTER comes on for considera-

tion by the undersigned Judge of the

above-entitled Court upon the plaintiff's

motion for an order "granting relief from

the judgment entered in this action on

September 21, 1982, dismissing the

action on the grounds that plaintiff's

claims were barred by the applicable

statute of limitations, such relief

A31

consisting of the addition of the words

‘without prejudice’ to the judgment.”

Having considered the entire record,

including but not limited to the argumenta-

tion and the authorities advanced in sup-

port of and in opposition to the motion

to amend, the Court concludes that the

plaintiff is entitled to the relief

requested.

The judgment entered on September 21,

1981, was not an adjudication on the merits

and is without prejudice to the plaintiff's

right to bring another action in another

jurisdiction upon the actions from which

their claims herein arise, subject to the

appropriate statute of limitations of

such other jurisdiction.

Boeing opposes the relief requested

A32

On the grounds that (1) plaintiff's

motion is not timely under Rule 59(e),

Ped. R. Civ. P., and (2) because "it is

not the function of this Court to instruct

the United States District Court for the

Southern District of New York regarding

the judicial treatment to be accorded

final judgments in that jurisdiction."

Neither argument can withstand the

authority of Sack v. Low, 478 F.2d 360,

364 (2d Cir. 1973), relied on by the

parties, including but not limited to

footnote 1 at page 36?.

The Clerk of the Court is directed

to enter an amended judgment granting

defendant's motion to dismiss the

action without prejudice.

A33

The Clerk of the Court shall direct

uncertified copies of this Order to

counsel of record.

DATED this 20th day of September,

1982.

/s/ Walter T. McGovern

WALTER T. McGOVERN

Chief United States

District Judge

A34

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

>) et a wk ee a ee a x

PRC/HARRIS, INC., :

Plaintiff, : NO. C80-1184M

Vv. :

JUDGMENT

THE BOEING COMPANY, :

Defendant. :

eeeeneveeaenaneeaces« x

This matter having come on for con-

sideration before the Court, Honorable

Walter T. McGovern, Chief United States

District Judge, presiding, and the issues

having been duly considered and a decision

having been rendered, granting defendant's

motion to dismiss the action without

prejudice,

A35

IT IS HEREBY ORDERED AND ADJUDGED,

that this action is hereby dismissed

without prejudice.

DATED this 20th day of September, 1982.

/s/ John A. McLellan

Deputy United States District

Clerk

A36

STATEMENT OF CORPORATE AFFILIATES

Consoer Townsend Harris International,

Inc.; California Airport Consultants,

Inc.; Consoer & Morgan; Consoer, Townsend

& Associates; Consoer, Townsend & As-

sociates in Michigan; PRC Environmental

Management, Inc.; ECI-SECO; ECI-SINOTECH;

Resources Engineering Consultants Com-

pany, Ltd.; Pirnie Harris International;

Frederic R. Harris of Canada, Ltd.;

Frederic R. Harris Engineering Corpora-

tion; DIT-Harris, S.A.; Harris Solarian;

Brown, Ames, Harris; Harris - Toups;

PRC Harris/Dynatrend; Harris do Brazil,

Ltda.; Frederic R. Harris & Partners,

Ltd.; Harris & Partners Consulting

Engineers (unltd); PRC Harris Associates;

Parsons, Brown, Harris; Frederic R.

Harris (Holland) B.V.; International

Engineers and Planners, B.V.; RAMP

Engineering, Nederland; Inter Ramp;

Tukker's Advies-En Beheermaatschappij

(Interconstruct), B.V.; PRC Architecture,

Limited; PRC Engineering, Ltd.; Frederic

R. Harris (Belgium), S.A.; Groupe d'Etudes

Courtoy - PRC; Styfhals-Pirnay-Harris;

Girec Harris; Polytecna Harris, S.p.A.;

P.H. & Partners S.r.l.; Compagnia Tecnica

Meridionale, S.r.l. (CO TE M); Global

Consultants, Inc.; HBA, S.A.; Vasconayarra

de Ingeniera, S.A.; Delineacion, S.A.;

Salah Abaalkhail PRC; Adibi Harris As-

sociates; PRC Iran; Harris & Abayom:

Olufawo & Partners; Harris Etteh Aro;

A37

Murphy Engineering ana Harris; Harris

Russell; Engineering Consultants, Ltd.;

Escy Consultants Limited; Read, Voorhees

& Associates, Limited; RVA Engineering,

Ltd.; RVA Omni-Sports, inc.; Sportsturf

Systems Inc.; PRC (Nigeria), Ltd.; Toups~

Montgomery; Toups-Hawks & Associates

A38