Petitioners Reply Brief — PRC Harris, Inc. v. Boeing Co.

‘ “4-4.

IN THE Sipe

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Supreme Court of the United States

Ocroser TeRM, 1983

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PRC HARRIS, INC.,

Petitioner,

v.

THE BOEING COMPANY,

Respondent.

Ow Petition FoR A Writ oF CERTIORARI TO THE UNITED

States Cocrt oF APPEALS FOR THE Seconp Crircvit

PETITIONER’S REPLY BRIEF IN

SUPPORT OF THE PETITION

Harry H. Wise, III

Gapspy & HannaH

437 Madison Avenue

New York, N.Y. 10022

(212) 759-9030

Attorneys for Petitioner

PRC Harris, Inc.

TABLE OF CONTENTS

Table of Anthori iOS os 0.6 6.6 6 60 6-6 obs 6 ae i

THE CASES IN OTHER CIRCUITS

CITED BY RESPONDENT AS SUP-

PORTING THE HOLDING BELOW

ARE INAPPOSITE 1

Cases Page

Cemer v. Marathon Oil Company,

583 F.2d 830 (6th Cir. 1978) 1

Chang v. Northwestern Memorial

Hospital, 549 F.Supp. 90 (N.D. Ill.

Costello v. United States, 365 U.S.

265, 6. S.Ct. 534, 5 L.Ed.2da 551

(1961) 6

Nilsen v. City of Moss Point, 701

F.2d 556 (5th Cir. 1983) (en banc) :

Nilsen ve City of Moss Point,

Mississippi, bot Pa 1I7 (th Cir.

1980) 2

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

1573)

United States v. Costello, 275 F.2d

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

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

Weissinger v.

F.2d 795 (Sth

United States, 423

Cir. 1970) (en banc)

Other Authority

1B Moore's Federal Practice,

€0.409[6] (1983) Ze

Restatement (2d) Judgments §19

Comment a (1982)

Restatement of Judgments §49

Comment a (1942)

29 U.S.C.A. §255

29 U.S.C.A. §626(e)

42 U.S.C.A. §2000(e) -5(e)

ii

Ul

ARGUMENT

THE CASES IN OTHER CIRCUITS

CITED BY RESPONDENT AS SUP-

PORTING THE HOLDING BELOW

ARE INAPPOSITE

In Respondent's Brief in Opposi-

tion, two cases outside of the Second

Circuit are cited as supporting the

holding below that a dismissal for

failure to comply with a local statute

of limitations is a dismissal "on the

merits" in the sense of a dismissal

that prevents further suit on the cause

of action in any jurisdiction. Those

cases are Nilsen v. City of Moss Point,

701 F.2d 556, 562 (5th Cir. 1983) (en

banc), and Cemer v. Marathon Oil Company,

583 F.2d 830, 832 (6th Cir. 1978).

Neither case is apposite, however,

because they each deal with dismissals

based on a limitations provision applic-

able in every state: Nilsen with the

timely filing requirements of Title VII,

42 U.S.C. § 2000e-5(e), see Nilsen v. City

of Moss Point, Mississippi, 621 F.2d 117,

119 (Sth Cir. 1980), and Cemer with the

federal statute of limitations applicable

to age discrimination suits, 29 U.S.C.

§§626(e), 255. Although it is true that

in Cemer the court purported to rely on

the effect of Rule 41(b) in support of

its holding, 583 F.2d at 832, the

leading federal procedure treatise has

noted that the fact that the first dis-

missal was based on a statute of limita-

tions applicable in every jurisdiction

is the "more tenable justification" for

the holding. 1B Moore's Federal

Practice, 40.409[6]) at 336-37 (1983).

It is true that both of these

decisions speak of a statute-of-iimitations

dismissal as being "on the merits". The

confusion that leads respondent to cite

Nilsen anc Cemer in support of its position,

however, is caused by the fact that the

phrase “on the merits” can be used in

three different senses modifying the word

"dismissal". It can be used to mean: (1)

a dismissal that examines and evaluates the

substantive facts alleged to provide plain-

tiff a cause of action; (2) a dismissal

that, while not actually reaching the sub-

Stantive allegations, determines that

plaintiff cannot sue again in any juris-

diction; and (3) a dismissal that does not

reach the substantive allegations but

determines that plaintiff cannot sue

again in the particular jurisdiction

(but is not necessarily barred from

suing elsewhere). These ambiguities

have led the American Law Institute

to discard the phrase "because of the

possibly misleading connotations."

Restatement (2d) Judgments §19,

Comment a, p. 161 (1982).

Depending on the particular facts,

a dismissal on limitations grounds can

fall into any of these categories. In

those rare instances where the limita-

tions provision is an integral part of

a created right, so that the running

of the particular statute extinguishes

the right, see 1B Moore's Federal

Practice 40.409[6]) at 334 n.3 (1983),

the dismissal falls into category (1).

In cases such as Nilsen and Cemer, where

the statute is uniform in all jurisdictions,

the dismissal falls into category (2).

And where, as in this case, the dismissal

is based on a local statute of limitations

not necessarily applicable in other juris-

dictions, the dismissal is one in category

(3). See Restatement of Judgments §49

Comment a, at p. 194 (1942).

Thus it is not enough to say that a

statute-of-limitations dismissal is "on

the merits"; the question is: is the

particular dismissal one that bars the

plaintiff's second suit? Where the

dismissal in jurisdiction A is based on

a local statute of limitations, and

jurisdiction B, otherwise open to the

plaintiff, would apply a longer statute,

the only modern decisional authority known

to petitioner supporting the proposition

that the first dismissal bars the second

suit is the Second Circuit authority

challenged by the petition in this case,

authority that, as shown in the petition,

is based on a reading of Rule 41(b) FRCP

that cannot be squared with this Court's

holding in Costello v. United States, 365

U.S. 265, 285, 81 S.Ct. 534, 545, 5 L.Ed.2d

551, 564 (1961).

Petitioner submits that it is clear

that when this Court held in Costello that

Rule 41(b) does not apply to dismissals

On grounds that prevent the presentation

of "the merits of [plaintiff's] claim,"

365 U.S. at 285, 81 S.Ct. at 545, 5 L.Ed.2d

at 564, it was referring to what the court

below called "the substantive issues raised"

(A4), that is, in this case, whether Boeing

breached its contract with PRC Harris.

Boeing has never had to prepare to meet

that dispute, since it instead raised an

initial bar--the District of Columbia

statute of limitations,*

Rule 41(b) FRCP performs a valuable

function as a "rule of thumb" that pro-

vides the effect of a dismissal where the

dismissing judge has the discretion to

dismiss with or without prejudice (as in

Since the raising of such a bar mandates an

automatic dismissal, the suggestion of the

majority in the en banc Nilsen decision that

a statute-of-limitations dismissal represents

a "refusal" of the court to speak on the sub-

stantive issues, thus differentiating it from

a dismissal on jurisdictional grounds, 701 F.2d

562, seems to confuse a limitations dismissal

with one for laches. In any event, the "juris-

dictional" dismissals there referred to are

merely a subset of the "jurisdictional" dis-

missals under Rule 41(b) as interpreted by this

Court.

-)-

the case of a Rule 12(b) (6) dismissal

where the dismissal can result from a

finding either that plaintiff has no

cause of action or that plaintiff may have

a cause of action but has failed to proper-

ly plead it) and has not specified his

intent in the order of dismissal. See

Weissinger v. United States, 423 F.2d 795,

798 (Sth Cir. 1970) (en banc) ("The fifth

sentence of Rule 41(b) . . . establishes

&@ procedure for construing the general

and ambiguous dismissal order, one which

does not say whether it is with or with-

out prejudice."); United States v.

Costello, 275 F.2d 355, 362 (2d Cir. 1960),

aff'd, 365 U.S. 265, 81 S.Ct. 534, 5 L.Ed.

24 551 (1961); see also, Sack v. Low, 478 F.2da

360, 364 (24 Cir. 1973). The Second Circuit

authorities challenged by this petition

are the only federal appellate decisions

of which petitioner is aware that have

said that Rule 41(b) can turn a dismissal

that could not otherwise so operate into

a dismissal "with prejudice", and the

decision below is the first that has

squarely so held. Petitioner submits

that such an interpretation is inconsistent

with this Court's interpretation of the

rule in Costello. See, in particular,

365 U.S. at 287 n.5, 81 S.Ct. at 546 n.5,

5 L.Ed.2d at 565 n.5.

Petitioner has found one decision

outside of the Second Circuit applying that

court's interpretation of Rule 41(b) to a

statute-of-limitations dismissal, Chang v.

Northwestern Memorial Hospital, 549 F.Supp.

90 (N.D. Ill. 1982). In that case the

dismissal on statute-of-limitations

grouncs of a state-court suit being

prosecuted concurrently with a federal

suit in the same state led to the

incongruous situation of the federal

suit, which had been timely filed, being

dismissed, allegedly on the grounds of

res judicata. Although the first dis-

missal had been stated to be "with

prejudice", 549 F.Supp. at 91, the

second court placed principal reliance

on an Illinois statute modeled after

Rule 41(b). 549 F.Supp at 94-95. The

incongruity of a timely suit being

dismissed for alleged res judicata

because a second, untimely, suit in

the same jurisdiction had been dismissed

on limitations grounds is a direct result

of the fallacy inherent in the Second

-10-

Circuit's interpretation of Rule 41(b):

the belief that Rule 41(b) gives the dis-

missing judge the discretion to adjudicate,

or to decline to adjudicate, "the merits"

in a dismissal order clearly based on a

ground that is a procedural bar unconnected

with the merits of the claim. (This

fallacy is further demonstrated at p. 10n

of respondent's brief, where it is asserted

that the discretion to dismiss "without

prejudice" exists under "certain unspecified

circumstances", without a suggestion of what

those circumstances could possible be.)

At least, in Chang, the District Judge

invited the plaintiff to seek an amendment

of the prior judgment of dismissal, clearly

contemplating that such an amendment would

allow the federal suit to proceed. 549 F.Supp.

at Sa.

=ll-=

CONCLUSION

The petition should be granted

and the decision below reversed.

Respectfully submitted,

Harry H. Wise, III

Attorney for Petitioner

Gadsby & Hannah

437 Madison Avenue

New York, New York 10022

October 13, 1983