Opposition Brief — Cardinal Industries, Inc. v. King

Supreme Court brief1987

Ask Donna

What actually matters in this document.

Text

Se 17 Be

—~, & JOSEPH F. SPANIOL, JR.

No. 86-1941

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

CARDINAL INDUSTRIES, INC.,

Petitioner,

RAYMOND C. KING AND MICHAEL H. PATTERSON,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

RESPONDENTS’ BRIEF IN JPPOSITION

THOMAS C. MACDONALD, JR.

Counsel of Record

DONALD A. GIFFORD

FRANK R. JAKES

SHACKLEFORD, FARRIOR,

STALLINGS & EVANS, P.A.

Post Office Box 3324

Tampa, Florida 33601

(813) 273-5000

Counsel for Respondents

SA SAAN | TNT RAMMSTEIN Cie ENE BRE TRIED ED LOE

WILSON - Eres Printinc Co., INc. - 789-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

TI: MIND nisin cn sntna a ccnisisnintmihicadenssnnaninnitanntiieis

ie wy | get ey | Ea |< RE en

REASONS FOR DENYING THE PETITION .............

I. BY FAILING TO SEEK REVIEW OF THE

II.

Il.

IV.

DECISION ON THE MERITS, PETITIONER

HAS RENDERED MOOT ANY CONTRO-

THE COURT OF APPEALS’ SUMMARY AF-

FIRMANCE RENDERS THIS CASE INAP-

PROPRIATE FOR REVIEW ...............................

NO PRESENT CONFLICT AMONG THE

COURTS OF APPEALS EXISTS REGARD-

ING THE ELEVENTH AMENDMENT’S BAR

TO COPYRIGHT INFRINGEMENT SUITS

AGAINST THE STATES IN FEDERAL

THE DISTRICT COURT DID NOT ERR

WHEN IT AFFORDED KING AND PATTER-

SON IMMUNITY UNDER THE ELEVENTH

III oc ocrcetnedeicadnetlp-secgmivctcdetamiasigmiadnicen

GO III sitinchaiscen ristnicacinshoeatansieabicsionssaimecanbebsiniasaatinren

TABLE OF AUTHORITIES |

CASES: Page

Alma Motor Co. v. Timken-Detroit Azle Co., 329

USB. 12D GURGG) onc cee 5

Atascadero State Hospital v. Scanlon, 473 U.S.

BOG CRIB) wicrscseciciesecenceeee eee 7, 8,9, 10

Blonder-Tongue Laboratories, Inc. v. University of |

Illinois Foundation, 402 U.S. 313 (1971) ............. 3

BV Engineering v. University of California, Los

Angeles, 657 F. Supp. 1246 (C.D. Cal. 1987) _....... 8, 9,11

Cardinal Industries, Inc. v. Anderson Parrish

Associates, Inc., No. 83-1038-Civ-T-13, slip op.

(2D. Fin. Tees ©, Be sence 9

Dugan v. Rank, 372 U.S. 609 (1963) ....00-0- 11

Edelman v. Jordan, 415 U.S. 651 (1974) _............. Bas 7

Ex Parte Young, 209 U.S. 123 (1908) .....000 10, 11

Flast v. Cohen, 392 U.S. 83 (1968) ...................22...... 4

Green v. Mansour, 474 U.S. 64, 106 S. Ct. 423

} | OMEN r et Sehr. i 11

Grigsby v. CMI Corp., 765 F.2d 1369 (9th Cir.

P| Pe eT EDTA Ry Men ne NO 3

Johnson v. University of Virginia, 606 F. Supp. 321

4 SR |} ea ee I as 7,8,9

Mihalek Corp. v. State of Michigan, 814 F.2d 290

CEE CN, IED iis esciccisiccdasecseceeeeae 5, 6

Mihalek Corp. v. State of Michigan, 630 F. Supp. 9

fi | repens. he eet ee 6

Mihalek Corp. v. State of Michigan, 595 F. Supp.

SD Ci eee. UNO, ROD itsetetccceseecctteeaen 6

Mills Music, Inc. v. State of Arizona, 591 F.2d 1278

COG SI. SANDE: pict 7,8,9

The Monrosa v. Carbon Black Export, Inc., 359

We RR BID ii ccsccnancccecarioeeeeeeain eee 6

Nevada v. United States, 463 U.S. 110 (1983) ........ 3

Peay v. Morton, 571 F. Supp. 108 (M.D. Tenn.

| Pe MEER D EM BIEL MT Ui Mex creel siren al fs 4

Pennhurst State School & Hospital v. Halderman,

GED UE. BP Gee eicesedinuacteeaeeewea 10, 11

Preiser v. Newkirk, 422 U.S. 395 (1975) ............ 4

ili

TABLE OF AUTHORITIES—Continued

Page

Richard Anderson Photography v. Radford Uni-

versity, 633 F. Supp. 1154 (W.D. Va. 1986)... 8,9

Sears, Roebuck & Co. v. Mackey, 351 U.S. 427

ipa adetedlacattgnsnenenncinasenniahsenieomeade 3

Sony Corp. of America v. Universal City Studios,

i MN RE , T © OG ss cc sclcassncennnansscsoccnoensunssae 3. 4

Woelffer v. Happy States of America, Inc., 626

Or I, EE URGE) MI BORD: nna nnccceccsccsecoiessasincone 9, 10

CONSTITUTIONAL, STATUTORY, AND

REGULATORY PROVISIONS:

I I MM I a sacsceesannspuncingecsatnssccnesasnes 9

Dae Cees, APC. ELL .............. nA Oy He ae fs RS ARPES te 4

ee aniadenarecanihanentonehnnsnel passim

Re I ML, FEY 6 0 Oe ccs cncnsnatennseseesassannssansss 7,9

I cL acicrcetssdsncncinsabensinetnbesikasisiasiesenres 7

ins a cnssonsesabaisndnansnsabnnaqeseosisdoaniass 10

rains ddnsuinanmansdnensoniannsoniecedenaidente 10

I iio spscnscvanscnanenstndscnsecnicesstetaenssiandans 6

ND i ccisionnnsonesernninnnesanachooniennan aS 2,3

I IE Me BUI soc cents snscsajansavosnnennavanienaninatarensats 2

rs cscethgniadnensenhonee 4,5

MISCELLANEOUS AUTHORITIES:

Restatement (Second) of Judgments § 34 (1982).. 3

3 M. Nimmer, Nimmer on Copyright § 12.04[A]

sia cen sisdahichninbamabnnnhminidiinnans 3

6 J. Moore, Moore’s Federal Practice {| 54.28[2]

I hs cacdsteecnddenintmadssunnan 3

Note, Copyright Infringement and the Eleventh

Amendment: A Doctrine of Unfair Use?, 40

I I I 0 oc cnnenhcnvontanenawentsnekasansns 10

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

No. 86-1941

CARDINAL INDUSTRIES, INC.,

Petitioner,

RAYMOND C. KING AND MICHAEL H. PATTERSON,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

The respondents, Raymond C. King and Michael H.

Patterson, respectfully request that this Court deny the

petition for writ of certiorari, seeking review of the per

- curiam decision of the Eleventh Circuit affirming without

opinion the judgment of the district court.

OPINIONS BELOW

In addition to the per curiam affirmance without opin-

ion by the court of appeals being reported at 811 F.2d

609, the May 7, 1986 Memorandum Decision of the dis-

trict court on the merits which appears as App. E to the

petition, is reported at 230 U.S.P.Q. (BNA) 678 and

1985-86 Copyright L. Rep. (CCH) {| 25,946.

STATEMENT OF THE CASE

For purposes of considering this petition, Raymond C.

King and Michael H. Patterson accept Cardinal Indus-

tries, Inc.’s (“Cardinal”) statement as sufficient save for

one misstatement and one omission of procedural history.

At page 5, footnote 2 of the petition, Cardinal inac-

curately states that King and Patterson attempted to file

a third-party complaint against the Board of Regents of

the State of Florida. In fact, the third-party complaint

was filed by the non-state defendants, Anderson Parrish

Associates, Inc. (“APA”), Steven D. Lange and John A.

Anderson (collectively referred to as “the APA defend-

ants”), and was dismissed based upon the Board of Re-

gents’ Eleventh Amendment immunity. King and Patter-

son did not, and had no reason to, sue their ultimate

superiors, the Board of Regents.

Following the district court’s grant of partial summary

judgment which held King and Patterson protected under

the Eleventh Amendment, respondents requested that the

Order be certified for appeal pursuant to Fed. R. Civ. P.

54(b). By an Order dated October 1, 1985, the district

court declined to certify the partial summary judgment

order pursuant to Rule 54(b).

REASONS FOR DENYING THE PETITION

I. BY FAiLING TO SEEK REVIEW OF THE DECI-

SION ON THE MERITS, PETITIONER HAS REN.

DERED MOOT ANY CONTROVERSY

Pursuant to Rule 19.6 of the Rules of this Court, peti-

tioner has consciously chosen to abandon any possible

review of the trial court’s decision on the merits as to

the APA defendants. By so doing, petitioner has forever

fixed the ultimate outcome of its dispute with King and

Patterson, thus rendering its petition moot.

In dropping the APA defendants, petitioner has frozen

the findings of the district court as irretrievably perma-

nent; there was no infringement of petitioner’s copy-

righted architectural plans. At the time of this decision

on the merits, respondents remained parties to the ac-

tion. See Restatement (Second) of Judgments § 34

(1982). Although King and Patterson had been granted

an interlocutory order of summary judgment, the order

remained non-final when the district court declined to in-

clude the Fed. R. Civ. P. 54(b) certificate. See Sears,

Roebuck & Co. v. Mackey, 351 U.S. 427 (1956). Thus,

the summary judgment remained subject to revision at

any time prior to entry of a judgment disposing of all

claims as to all parties. 6 J. Moore, Moore’s Federal

Practice 7 54.28[2] (1987). Therefore, since King and

Patterson were parties to the judgment on the merits,

petitioner is barred by the doctrine of res judicata from

ever relitigating the question of copyright infringement

irrespective of the Eleventh Amendment. Nevada v.

United States, 463 U.S. 110, 129-30 (1983).

Yet, even if the non-final grant of summary judgment

somehow removed King and Patterson as parties for pur-

poses of res judicata, petitioner is nevertheless collater-

ally estopped from relitigating the issue of copyright in-

fringement. Blonder-Tongue Laboratories, Inc. v. Uni-

versity of Illinois Foundation, 402 U.S. 313 (1971);

accord Grigsby v. CMI Corp., 765 F.2d 1369, 1372 n.5

(9th Cir. 1985). In its complaint,-Cardinal sued King

and Patterson solely for “contributory infringement,”

alleging that they “contributed to and/or induced” the

infringing conduct of the APA defendants. However,

since the trial court’s determination that the APA de-

fendants did not infringe is final, King and Patterson

cannot be liable for any “contributory infringement.” “It

is always the case that there is no contributory liability

if that conduct which is aided by the putative contribu-

tory infringer is not itself infringing.” 3 M. Nimmer,

Nimmer on Copyright § 12.04[A] (1986) ; see Sony Corp.

of America v. Universal City Studios, Inc., 464 U.S. 417,

442 (1984); Peay v. Morton, 571 F. Supp. 108, 114

(M.D. Tenn. 1983).

Because of petitioner’s decision to drop the APA de-

fendants as parties to its petition, Cardinal is forever

foreclosed from attaining a favorable ruling on the merits

as to King and Patterson. No decision on the Eleventh

Amendment issue can alter this fact. Accordingly, the

petition must be denied as an impermissible attempt to

secure an advisory opinion in contravention of Article

III’s “case or controversy” requirement. Preiser v. New-

kirk, 422 U.S. 395, 401 (1975) (“a federal court has

neither the power to render advisory opinions nor ‘to

decide questions that cannot affect the rights of litigants

in the case before them.’”) ; Flast v. Cohen, 392 U.S. 83,

95 (1968).

Il. THE COURT OF APPEALS’ SUMMARY AFFIRM-

ANCE RENDERS THIS CASE INAPPROPRIATE

FOR REVIEW

In the court of appeals below, the Eleventh Circuit is-

sued a per curiam order pursuant to llth Cir. R. 25,

affirming the district court’s judgment without opinion.

1 Rule 25 of the Rules of the United States Court of Appeals for

the Eleventh Circuit provides:

Rule 25. Affirmance Without Opinion.

When the court determines that any of the following circum-

stances exist:

(a) judgment of the district court is based on findings

of fact that are not clearly erroneous;

(b) the evidence in support of a jury verdict is

sufficient;

by substantial evidence on the record as a whole;

(d) summary judgment, directed verdict, or judgment

on the pleadings is supported by the record;

(e) judgment has been entered without an error of law;

and an opinion would have no precedential value, the judg-

ment or order may be affirmed or enforced without opinion.

Accordingly, the court of appeals provided no rationale

for its affirmance nor did it delineate the ground(s) upon

which it was affirming.

The Eleventh Amendment issue was not the sole issue

before the Eleventh Circuit. Also on appeal was the dis-

trict court’s judgment on the merits as to the non-state,

APA defendants. Petitioner’s speculation that the court

of appeals reached the Eleventh Amendment issue is

belied by the court’s reliance upon 11th Cir. R. 25. Under

this rule, affirmance without opinion is only permitted

when the “opinion would have no precedential value.”

Since the Eleventh Amendment issue was admittedly one

of first impression in the circuit, it cannot be said that

an opinion on the issue would lack precedential value.

Furthermore, this Court has stated that constitutional

decisions should be avoided where a non-constitutional

decision can resolve the issue. Specifically, in Alma Motor

Co. v. Timken-Detroit Axle Co., 329 U.S. 129 (1946), the

Court explained that

This Court has said repeatedly that it ought not

pass on the constitutionality of an act of Congress

unless such adjudication is unavoidable. This is true

even though the question is properly presented by

the record. If two questions are raised, one of non-

constitutional and the other of constitutional nature,

and a decision of the non-constitutional question

would make unnecessary a decision of the ccnstitu-

tional question, the former will be decided.

Id. at 136. Assuming that the court of appeals heeded

this admonition, it would not have reached the Eleventh

Amendment issue.

Indeed, in an analogous situation, the Sixth Circuit

expressly utilized the Alma Motors doctrine to avoid

reaching the Eleventh Amendment issue. Mihalek Corp.

v. State-of Michigan, 814 F.2d 290 (6th Cir. 1987). The

district court initially dismissed the copyright infringe-

ment action against the State of Michigan on Eleventh

Amendment grounds and the dismissal order was certi-

fied for interlocutory appeal pursuant to 28 U.S.C.

§ 1292(b). Mihalek Corp. v. State of Michigan, 595 F.

Supp. 903 (E.D. Mich. 1984). While this appeal was

pending, the district judge entered summary judgment on

the merits in favor of the remaining defendants. Mihalek

Corp. v. State of Michigan, 630 F. Supp. 9 (E.D. Mich.

1985). The appeal of the decision on the merits was then

consolidated with the Eleventh Amendment appeal. In

its written opinion affirming the district court, the Sixth

Circuit considered unnecessary any review of the Elev-

enth Amendment issue, once the court affirmed on the

merits. 814 F.2d at 297.

Thus, contrary to petitioner’s assumption, it appears

that the court of appeals did not reach the Eleventh

Amendment question. Nevertheless, the fact remains that

the court of appeals did not specify the basis for its

affirmance. This being so, the Court’s statement in The

Monrosa v. Carbon Black Export, Inc., 359 U.S. 180

(1959) is particularly instructive.

While this Court decides questions of public impor-

tance, it decides them in the context of meaningful

litigation. Its function in resolving conflicts among

the Courts of Appeals is judicial, not simply admin-

istrative or managerial. Resolution here of the * * -

[issue in conflict among the circuits] can await a day

when the issue is posed less abstractly.

Id. at 184.

III. NO PRESENT CONFLICT AMONG THE COURTS

OF APPEALS EXISTS REGARDING THE ELEV-

ENTH AMENDMENT’S BAR TO COPYRIGHT IN-

FRINGEMENT SUITS AGAINST THE STATES

IN FEDERAL COURT

Petitioner argues that the affirmance without opinion

by the court of appeals below “conflicts with the rulings

of several other courts.’ Petition at 6. The “several”

courts to which petitioner refers are the Ninth Circuit

in Mills Music, Inc. v. State of Arizona, 591 F.2d 1278

(9th Cir. 1979) and a district court for the Western

District of Virginia in Johnson v. University of Virginia,

606 F. Supp. 321 (W.D. Va. 1985).

Cardinal’s claimed conflict is chimerical. Both Mills

Music and Johnson predate this Court’s decision in Atas-

cadero State Hospital v. Scanlon, 473 U.S. 284 (1985).

Atascadero holds that Congress may unilaterally abro-

gate a state’s Eleventh Amendment immunity only when

acting pursuant to § 5 of the Fourteenth Amendment and

when providing an unequivocal expression of its intent

to abrogate the Eleventh Amendment. Jd. at 242-43 and

244-45 n.4. Additionally, Atascadero reaffirms the prin-

ciple that a state may waive its Eleventh Amendment

immunity by participating in a particular federal pro-

gram where Congress has manifested a clear intent that

participation is conditioned upon such a waiver. Id. at

247; accord Edelman v. Jordan, 415 U.S. 651, 673

(1974).

Without having the benefit of this Court’s reasoning in

Atascadero, the Mills Music court (per District Judge

Lucas, sitting by designation) held that “Eleventh Amend-

ment immunity is waived when Congress has authorized

suit against a class of defendants that includes states, and

the state enters into the activity regulated by federal

law.” 591 F.2d at 1283. Applying this standard, the

Mills Music court held that the Eleventh Amendment had

been waived becausetthe term “any person” in § 101 of

the Copyright Act of 1909, 17 U.S.C. $101 (1976)

(amended in 1977), was “sweeping and without apparent

limitation, suggesting that Congress intended to include

states within the class of defendants,” Jd. at 1285, and

by voluntarily engaging in what was essentially a com-

mercial activity (promotion of a state fair), the state

had entered into an activity regulated by federal legisla-

tion.

After Atascadero, the Mills Music decision retains no

precedential value. Contrary to the Mills Music rationale,

Atascadero held that a general authorization for suit in

federal court such as “any recipient of Federal assist-

ance” is “not the kind of unequivocal statutory language

sufficient to abrogate the Eleventh Amendment.” 473

U.S. at 245-46. Indeed, quite recently, a district court

in the Ninth Circuit has explicitly recognized the post-

Atascadero demise of Mills Music, by holding that the

California Board of Regents is immune from suit for

Eleventh Amendment. BV Engineering v. University of

California, Los Angeles, 657 F. Supp. 1246 (C.D. Cal.

1987) (“While there is no direct 9th Circuit opinion

overruling Mills Music, the handwriting is unmistakably

on the wall and the Court must read that handwriting.

* * * The rationale of Mills Music .. . has, in effect,

been overruled in Atascadero State Hospital.”).

In Johnson, the district court, again without the benefit

of Atascadero. held that Congress abrogated the Eleventh

Amendment by enacting the Copyright Act of 1976. This

holding was premised almost entirely upon Mills Music.

606 F. Supp. at 323-24. Following Atascadero, another

district judge in the Western District of Virginia ruled

that a state university was protected under the Eleventh

Amendment from a copyright infringement suit in

federal court. Richard Anderson Photography v. Rad-

ford University, 683 F. Supp. 1154 (W.D. Va. 1986).

In so ruling, the Richard Anderson Photography court

stated:

ly my view, Johnson (decided March 27, 1985)

would have been decided differently if the court had

had available Atascadero (decided June 28, 1985)

because Atascadero imposes a more stringent stand-

ard than had been used in the past by requiring

courts to find an “unequivocal indication” of a State’s

consent to be sued in federal court.

Id. at 1160.

Thus, in light of Atascadero, neither Mills Music nor

Johnson remain viable and no conflict exists. See Woelf-

fer v. Happy States of America, Inc., 626 F. Supp. 499,

503 n.5 (N.D. Ill. 1985). Indeed, subsequent to Atascadero,

the courts have uniformly found the states to be immune

from suit for copyright infringement in the federal courts

under the Eleventh Amendment. BV Engineering v.

University of California, Los Angeles, 657 F. Supp. 1246

(C.D. Cal. 1987) ; Richard Anderson Photography v. Rad-

ford University, 633 F. Supp. 1154 (W.D. Va. 1986);

Woelffer v. Happy States of America, Inc., 626 F. Supp.

499 (N.D. Ill. 1985); Cardinal Industries, Inc. v. Ander-

son Parrish Associates, Inc., No. 83-1038-Civ-T-13, slip

op. (M.D. Fla. Sept. 5, 1985). Rather than being faced

with an inescapable conflict between the courts, the courts

have adhered to the teachings of Atascadero in such a

fashion as to render harmonious decisions in copyright

infringement cases against the states.

IV. THE DISTRICT COURT DID NOT ERR WHEN IT

AFFORDED KING AND PATTERSON IMMUNITY

UNDER THE ELEVENTH AMENDMENT

Putting aside mootness, the question of whether the

court of appeals even reached the Eleventh Amendment

issue, and the current harmony among the lower courts

on the issue, the writ still should not be granted because

the district court correctly granted King and Patterson

summary judgment.

As recognized above, Atascadero holds that Congress

can only unilaterally abrogate the Eleventh Amendment

when acting pursuant to §5 of the Fourteenth Amend-

ment. 473 U.S. at 242-43. Since the Copyright Act of

1976, 17 U.S.C. § 101 et seg., was enacted pursuant to

Congress’ powers under Art. I, § 8, cl. 8, Congress lacks

the ability to unilaterally abrogate the Eleventh Amend-

ment. Accord Richard Anderson Photography v. Radford

University, 633 F. Supp. 1154, 1158 (W.D. Va. 1986) ;

Woelffer v. Happy States of America, Inc., 626 F. Supp.

499, 505 n.9 (N.D. Ill. 1985); Note, Copyright Infringe-

ment and the Eleventh Amendment; A Doctrine of Un-

fair Use?, 40 Vand. L. Rev. 225, 264-66 (1987).

Similarly, when enacting the Copyright Act of 1976,

Congress failed to include unequivocal language author-

izing suit against the states or manifest a clear intention

that participation by the states was conditioned upon con-

sent to federal jurisdiction. See Atascadero, 473 U.S. at

246-47. Section 501’s general authorization for suit

against “[a]nyone who violates any of the exclusive

rights of the copyright owner. . .,” 17 U.S.C. § 501, is

not the kind of unequivocal statutory language authoriz-

ing suit against the states. See Atascadero, 473 U.S. at

247. Furthermore, in 17 U.S.C. §§ 401-412, Congress

does not manifest a clear intent that registration of or

protection for copyrights owned by states and their

agencies is conditioned upon consent to suit in federal

court.

Contrary to Petitioner’s argument, the dismissal of

Cardinal’s claims for prospective injunctive relief against

King and Patterson is in complete harmony with Ex

Parte Young, 209 U.S. 123 (1908) and its progeny. In

granting respondents summary judgment, the district

court found that “the University of South Florida is the

real and substantial party in interest with regard to the

suit filed against King and Patterson.” As stated by this

Court in Pennhurst State School & Hospital v. Halder-

man, 465 U.S. 89 (1984), “as when the State itself is

named as the defendant, a suit against state officials that

is in fact a suit against a State is barred regardless of

whether it seeks damages or injunctive relief.” Id. at

101-02 (emphasis supplied).

Moreover, Cardinal’s prayer for relief seeking to en-

join King and Patterson (even though the latter is no

longer a state employee), “their agents” and “all those in

active participation and concert” with them would neces-

sarily bind all state employees; thus “the effect of the

judgment would be ‘to restrain the Government from

acting’ ”’ in violation of the Eleventh Amendment. /d. at

101 n.11 (quoting Dugan v. Rank, 372 U.S. 609 (1963) ).

Finally, the Ex Parte Young doctrine is inapplicable in

this case since, like Green v. Mansour, 474 U.S. 64, ’

106 S. Ct. 423, 427 (1985), “[t]here is no claimed con-

tinuing violation of federal law and therefore no occasion

to issue an injunction.” See BV Engineering v. Univer-

sity of California, Los Angeles, 657 F. Supp. 1246, 1250

n.2 (C.D. Cal. 1987).

Cardinal’s remaining contention that it sued King and

Patterson solely in their individual capacity is mislead-

ing and meaningless. While properly indentifying King

and Patterson as “individuals” (as opposed to “corpora-

tions”), the complaint repeatedly referred to respondents

in their official capacity or as “USF.” Nevertheless, the

district court, in granting summary judgment, made a

factual determination that King and Patterson were, at

all times, acting within their scope of employment. Thus,

Cardinal seeks this Court’s reversal of the factual find-

ings of the district court.

CONCLUSION

WHEREFORE, for all these reasons, respondents pray

that the‘ petition for writ of certiorari be denied.

Respectfully submitted,