Petition for Writ of Certiorari — Wilson v. Armstrong World Industries, Inc.

eo — ° we

89-583

NO. 89-

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

CLARENCE J. WILSON, ET AL,

Petitioners

~, % >> Vv

ARMSTRONG WORLD INDUSTRIES, INC., ET AL,

Respondents

On Writ of Certiorari From The United States

Court of Appeals For the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

ROBERT E. BALLARD

ABRAHAM, WATKINS, NICHOLS,

BALLARD, ONSTAD & FRIEND

800 Commerce Street

Houston, Texas 77002

(713) 222-7211

LAWRENCE MADEKSHO

LAW OFFICES OF

LAWRENCE MADEKSHO

8320 Gulf Freeway

Houston, Texas 77087

(713) 641-0251

CLINARD J. HANBY

ESSMYER & HANBY

4300 Scotland

Houston, Texas 77007

(713) 868-1111

Counsel of Record

Attorneys for Plaintiffs-A ppellants

ee ee

Alpha Law Brief Co., Inc.— 8748 Westpark — Houston, Texas 77063 — 789-2000

I

QUESTIONS PRESENTED FOR REVIEW

Do allegations and proof of a widespread conspiracy

involving hundreds of lawsuits to suppress evidence,

destroy documents, and commit perjury state a claim

for “fraud of the court” under the savings provision

of Rule 60(b)?

Should a proceeding alleging “fraud on the court”

be treated procedurally as an “independent action”

rather than as a mere motion for purposes of judg-

ment on the pleadings, summary judgment, etc.?

Ul

LIST OF ALL PARTIES

PLAINTIFFS-PETITIONERS:

Belinge, Robert G.

Botter, Vernon W.

Brannen, Lloyd B.

Brown, B. C.

Campbell, John W.

Cash, Russell F.

Childers, Robert R.

Childers, Leslie B.

Cimerhanzel, Edwin E.

Copeland, John W.

Crosby, Marshall

Daigle, Ralph

Davis, Gilbert P.

Easley, Tommie L.

Greene, Billy

Grein, Edward ~~

Grein, Johnny (Sr.) Pi

Grein, Leo V.

Grein, Marvin

Grimes, Wilford

Harrison, James C.

Hartwell, Earnest

Howard, William (Sr.)

Jones, William C.

Kramer, Charles

Massey, Michael

Massey, William J.

Moeller, Carl

Murphree, Tommy L.

Naquin, Luke

Oldham, Louis

Oliver, Robert

Pennington, Leemon

Ross, Joel B.

Ross, Ralph

Rudy, Wilson

Sanford, Alton B.

Shrader, Jesse

Steed, Jeff

Strebeck, David E.

Taylor, William C.

Thompson, Harvey Lee

Todd, Johnnie C.

Turner, Victor E.

Wilkening, Murray E.

Williams, Vernon T.

Wilson, Clarence J.

Wishard, Frank H.

Zarate, Augustin

DEFENDANTS-RESPONDENTS:

ARMSTRONG WORLD INDUSTRIES, INC.

c/o Mr. John Boswell

Boswell & Hallmark

2100 InterFirst Plaza

Houston, Texas 77002

EAGLE-PINCHER INDUSTRIES, INC.

c/o Mr. Frank Bean

Bean & Manning

24 Greenway Plaza

1611 Weslayan Tower

Houston, Texas 77046

FIBREBOARD CORPORATION

c/o Mr. R. Lyn Stevens

Wells, Wheelus, & Green ~

Sth Floor, Petroleum Bldg.

Beaumont, Texas 77701

OWENS-CORNING FIBERGLASS CORP.

OWENS-ILLINOIS, INC.

c/o Mr. Jim Crosby

Crosby & Saad

Suite 210

2970 Cottage Hill Road

Mobile, Alabama 36606

STANDARD INSULATIONS, INC.

c/o

IV

DEFENDANTS IN THE DISTRICT COURT

WHO, TECHNICALLY, ARE NOT PARTIES:

CELOTEX CORPORATION

c/o Ms. Gail Jenkins

Benckenstein, Norvell, Bernsen & Nathan

P.O. Box 551

Beaumont, Texas 77704

PITTSBURGH CORNING CORPORATION

c/o Mr. Ron Cook

Mayor, Day & Caldwell

1900 RepublicBank Center

Houston, Texas 77002

RAYMARK INDUSTRIES, INC.

c/o Mr. Jeff McClure

Butler & Binion

Allied Bank Plaza

Houston, Texas 77002

OTHER INTERESTED PERSONS:

TRAVELERS INSURANCE COMPANY

Mr. Jerry L. Beane

Strasburger & Price

4300 First RepublicBank Plaza

Dallas, Texas 75202

THE JIM WALTER CORPORATION

Ms. Gail C. Jenkins

Benckenstein, Norvell, Bernsen & Nathan

P.O. Box 551

Beaumont, Texas 77704

COMMERCIAL UNION INSURANCE COMPANY

Mr. Don Martinson

Fannin, Harper & Martinson

8117 Preston Road

Dallas, Texas 75225

KEENE CORPORATION

Mr. Gene M. Williams

Mehaffy, Weber, Keith & Gonsoulin

2516 Calder Ave.

Beaumont, Texas 77704

GAF CORPORATION

Orgain, Bell & Tucker

470 Orleans St.

Beaumont, Texas 77701

ZURICH INSURANCE COMPANY

Mr. J. Hampton Skelton

Akin, Gump, Strauss, Hauer & Feld

2100 One Congress Plaza

111 Congress Ave.

Austin, Texas 78701 |

LIBERTY MUTUAL INSURANCE COMPANY -

Mr. Frank Bean

Bean & Manning

24 Greenway Plaza

1611 Weslayan Tower

Houston, Texas 77046

INSURANCE ‘COMPANY OF NORTH AMERICA

Mr. Randall Wilson

Susman, Godfrey & McGowan

2400 Allied Bank Plaza

Houston, Texas 77002

H. CORWIN HINSHAW, M.D.,

~HARRY DEMOPOULOS, M_.D., and

HEALTH MAINTENANCE PROGRAMS, INC.

Mr. John C. Landa, Jr.

Hill, Parker, Franklin, Cardwell & Jones

5300 Memorial, Suite 700

Houston, Texas 77007

VI

UNITED STATES GYPSUM COMPANY

Mr. Stephen S. Andrews

Woodard, Hall & Primm

4700 Texas Commerce Tower

Houston, Texas 77002

AETNA LIFE INSURANCE COMPANY

Fulbright & Jaworski

Mr. L. S. Carsey

1301 McKinney

Houston, Texas 77010

KEITH WILSON, M.D.

Mr. David A. Livingston

Dunn, Kacal, Adams, Livingston, Pappas & Law

2929 Allen Parkway

Houston, Texas 77019

Plaintiffs-Appellants believe that most if not all casualty

and indemnity companies in the United States will be

affected by the outcome of this proceeding.

VII

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ............

ow

REFERENCES TO REPORTS OF OPINIONS BELOW .

GROUNDS OF JURISDICTION ..o......ccccccscess

Pe id dss ta lawcecceseceascues

Do allegations and proof of a widespread conspiracy

involving hundred of lawsuits suppress evidence,

destroy documents, and commit prejury state a claim

for “fraud of the court” under the savings provision

of Rule 60(b)?

Should a proceeding alleging “fraud on the court” be

treated procedurally as an “independent action”

rather than as a mere motion for purposes of judgment

on the pleadings, summary judgment, etc.?

ee a

APPENDIX A— Opinion of the Court of Appeals .......

APPENDIX B — Order of the Court of Appeals Overruling

Motion for Rehearing .................

APPENDIX C — Opinion of the District Court .........

13

16

A-1

B-1

C-1

vill

TABLE OF AUTHORITIES

CASES Page

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct.

Bs OE ee BE COED no sc cen ckedsvanssveces 13

Bullock v. United States, 763 F.2d 1115 (10th Cir. 1985)

{ 2 POPP TITTI ECPI T Ere eee 13

Carr v. District of Columbia, 543 F.2d 917 (D.C. Cir. 1976) 6

Cleveland Demolition Co., Inc. v. Azcon Scrap Corp., 827

ae We CUE GO. BOOED ce sccnvancudecanccsteseces 11

Conley v. Gibson, 355 US. 41, 78 S. Ct. 99, 2 L.Ed.2d 80

CREED 6 ASaks Behe kndh6e65 000 asc cnn peheead 06 60's 00> 13,14

Davsuel v. Davsuel, 195 F.2d 774 (D.C. Cir. 1952) ...... 11

Exploration Co. v. United States, 247 U.S. 435, 38 S. Ct.

SUE, GE EAE: BORD CORRE) cn cnncccwsssasscccscvess 6

Federal Deposit Ins. Co. v. Alker, 30 F.R.D. 527 (E.D. Pa.

1962), aff’'d., 316 F.2d 236 (3rd Cir.), cert. denied, 375

SE, SU EE 6 4's Aibo ss ine snescdeneccdaceadtdcees 6

Great Coastal Express, Inc. v. International Brotherhood,

675 F.2d 1349 (4th Cir. 1982), cert. denied, 459 USS.

SORE AUMUND RANA eebuew aden csisccnsdcscdsysecess 7,8,9, 10, 11

Hawkins v. Lindsley, 327 F.2d 356 (2d Cir. 1964) ...... 11

Hazel-Atlas Co. v. Hartford-Empire Co., 322 US. 238, 64

ee m® Fe SB) Fe Trier eee 7,10

H. K. Porter Co., Inc. v Goodyear Tire & Rubber Co., 536

ie A Me I ou ccc cas aee ak ss 11

Jungerson v. Axel Bros., Inc., 121 F.Supp. 712 (S.D.N.Y.),

affd., 217 F.2d 646 (2d Cir. 1954) ..........eeeeeee 11

Kerwit Med. Products v. N & H Instruments, 616 F.2d 833

(oo SE ererrrTere? Tr te eet T eee 7

Kupferman v. Consolidated Research & Manufacturing Co.,

r Bp &® 8. Bo SS: errr Tree 7, 22

_ Mandouna v. United States, 878 F.2d 62 (2d Cir. 1989) .. 14

Matter of Met-L-Wood Corp., 861 F.2d 1012 (7th Cir. 1988) 11

Olson v. Arctic Enterprises, Inc., 21 F.R. Serv. 2d 423

CR, FE TITER aw aik wien bee doesasenccsccances ses 11

Serzysko v. Chase Manhattan Bank, 461 F.2d 699 (2d

Cir.), cert. denied, 409 U.S. 883 (1972) .........505-- 10

Synanon Church v. United States, 579 F.Supp. 967 (D.C.

BE, TED che hence cincensstccnevacecncestesvececs 11

Travelers Indemnity Co. v. Gore, 761 F.2d 1549 (11th Cir.

REE nrrT eT TSTTITT IT LTT Leek 11

Wilkin v. Sunbeam Corp., 466 F.2d 714 (10th Cir. 1972),

cert. denied, 409 U.S. 1126 (1973) .........e ee ee eens

OTHER AUTHORITIES

Fed. R. Civ. Proc. G0(b) .......ccccceccccccvccccecees passim

37 Am. Jur. 2d, Fraud and Deceit § 405 (1968) ......... 6

NO. 89-

IN THE

Supreme Court of the Mnited States

OCTOBER TERM, 1989

CLARENCE J. WILSON, ET AL,

Petitioners

V.

ARMSTRONG WORLD INDUSTRIES, INC., ET AL,

Respondents

On Writ of Certiorari From The United States

Court of Appeals For the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

To The Honorable Supreme Court:

Clarence J. Wilson, et al, seek a Writ of Certiorari to

the United States Court of Appeals for the Fifth Circuit:

—

REFERENCES TO REPORTS OF

OPINIONS BELOW

The opinion of the Fifth Circuit is reported at 873

F.2d 869. The opinion of the district court is unreported.

2

GROUNDS OF JURISDICTION

The judgment sought to be reviewed is dated May 30,

1989 and was entered the same day. Petitioners’ Motion

for Rehearing was overruled on July 11, 1989. This

Court has jurisdiction under 28 U.S.C. 1254(1).

STATUTES INVOLVED

Fed. R. Civ. P. 60(b) provides:

(b.) Mistakes: Inadvertence; Excusable Neglect;

Newly Discovered Evidence; Fraud, etc. On motion

and upon such terms as are just, the court may

relieve a party or a party’s legal representative from

a final judgment, order or proceeding for the fol-

lowing reasons: (1) mistake, inadvertence, surprise,

or excusable neglect; (2) newly discovered evidence

which by due diligence could not have been dis-

covered in time to move for a new trial under Rule

69(b); (3) fraud (whether heretofore denominated

intrinsic or extrinsic), misrepresentation, or other

misconduct of an adverse party; (4) the judgment

is void; (5) the judgment has been satisfied, re-

leased, or discharged, or a prior judgment upon

which it is based has been reversed or otherwise

vacated, or it is no longer equitable that the judg-

ment should have prospective application or (6)

any Other reason justifying relief from the operation

_of the judgment. The motion shall be made within

a reasonable time, and for reasons (1), (2), and

(3) not more than one year after the judgment,

order, or proceeding was entered or taken. A mo-

tion under this subdivision (b) does not affect the

3

finality of a judgment or suspend its operation. This

rule does not limit the power of a court to entertain

an independent action to relieve a party from a

judgment, order, or proceeding, or to grant relief

to a defendant not actually personally notified as

provided in Title 28, U.S.C), § 1655, or to set

aside a judgment for fraud upon the court. Writs

of coram nobis, coram vobis, audita querela, and

bills of review and bills in the nature of a bill of

review, are abolished, and the procedure for obtain-

ing any relief from a judgment shall be by motion

as prescribed in these rules or by an independent

action.

STATEMENT OF THE CASE

The original litigation involved fifty plaintiffs who

suffered asbestos-related injuries. Jurisdiction was based

on diversity of citizenship. The district court consolidated

all fifty cases then ordered separate trials on the issues

of liability and damages. The jury found that the hazards

presented by asbestos to insulators and construction

tradesmen were not known and could not have been

known to these defendants prior to August 1, 1966.

As a result, three of the defendants, Celotex, Pittsburgh-

Corning, and Raymark Industries were potentially liable.

The remaining six defendants (the Respondents here)

were absolved of liability. The district court found no

just reason for delay and entered final judgment in favor

of these six defendants. See 107 F.R.D. 250. The Court

of Appeals for the Fifth Circuit affirmed. 810 F.2d 1358.

This Court denied certiorari. 108 S. Ct. 97.

sii ai

4

Petitioners then filed a proceeding to set aside the

judgment under Rule 60(b).’ Petitioners alleged that the

original judgment had been obtained through a “scheme

to defraud . . . accomplished through the use of mis-

representations, concealment, fraud, and the intentional

sponsoring of perjurous testimony.” (Application for

Permission to File a Rule 60(b) Motion to Set Aside

Final Judgments, Appendix 1 (to that Motion) at 6-7.)

The pleading went on to allege that a conspiracy in-

volving numerous-—parties and their insurers had formed

in the mid-1970s to defeat asbestos-related claims by

“affirmatively misrepresent[ing] the truth of the ‘state of

the art.’” (Jd. at 8.) The overt acts of this conspiracy

included: (a) “preparing and presenting false and mis-

leading factual evidence” to Courts and juries in hundreds

of asbestos-related cases, (c) employing “lawyers and

others to destroy, secrete, or misrepresent damaging evi-

dence;” and (f) organizing “a consortium of a number of

lawyers in a number of states” to present the fraudulent

evidence. (Id. at 14.) Petitioners sought relief for “de-

liberate fraud upon the Court . . . as contemplated by

Rule 60(b)(6).”

Petitioners presented numerous exhibits to the district

court which tended to prove their allegations. The ex-

hibits showed, among other particulars too lengthy to

state in detail here, that thousands of relevant documents

had been deliberately destroyed. (PX-B, 40-41), that

reports dating from as early as the 1940’s which con-

nected asbestos to cancer had been uniformly suppressed

1. In accordance with earlier circuit precedent, this proceeding

was originally filed in the Court of Appeals. See, Bros, Inc. v. W.E.

Grace Mfg. Co., 320 F.2d 594 (5th Cir. 1963). The Court of Appeals

then transferred the proceeding to the district court.

\

5

in the face of numerous production orders in numerous

lawsuits (PX-23), and that many of the defendants had

uniformly lied in numerous lawsuits about the extent

and length of time of their involvement with asbestos.

(PX-S-15; PX-K).

Based on the pleadings and the exhibits, without per-

mitting any evidentiary hearing, the district court denied

petitioners any relief. Appendix C at 4. The district court

first ruled that, if the proceeding was based on Rule

60(b)(3), it was-untimely. Appendix C at 3. The dis-

trict court then rejected petitioners’ “fraud on the court”

contention by holding, that defendants’ conduct “in no

way rises to the level of fraud or misrepresentation

contemplated by Rule 60(b).” Appendix C at 4.

Petitioners then appealed to the Fifth Circuit. That

court held that, to the extent petitioners’ allegations fell

within Rule 60(b)(3), they were time-barred. Appendix

A at 5. Next, the court ruled that Rule 60(b)(6) could not be

used to raise contentions which could have been raised un-

der Rule 60(b)(3). Appendix A at 5-6. Finally, the court

ruled that petitioners’ “allegations do not rise to the level

of ‘fraud on the court’ necessary to obtain relief under

the savings clause of Rule 60(b).” Appendix A at 7.

Instead, the court ruled that “fraud on the court” re-

quires “an unconscionable plan or scheme which is de-

signed to improperly influence the court in its decision.”

Appendix A at 6. This concept, according to the court,

should “embrace only the species of fraud which does,

or attempts to, defile the court itself, or is a fraud per-

petuated by officers of the court so that the judicial

machinery cannot perform in the usual manner its im-

partial task of adjudging cases. .. .” Id. As a result,

6

the court found that “the district court did not abuse

its discretion” and affirmed. Appendix A at 7. Petitioners’

Motion for Rehearing was denied without opinion.

Appendix B.

REASONS FOR GRANTING THE WRIT

ISSUE 1:

Do allegations and proof of a widespread con-

spiracy involving hundreds of lawsuits suppress

evidence, destroy documents,-and commit per-

jury state a claim for “fraud of the court” under

the savings provision of Rule 60(b)?

The main portion of Rule 60(b) empowers the dis-

trict court to set aside its judgment for “fraud (whether

heretofore denominated intrinsic or extrinsic), misrepre-

sentations, or other misconduct of an adverse party.”

Rule 60(b)(3). However, the viability of this provision

for setting aside a judgment procured by fraud is serious-

ly impaired by the requirement that the motion be made

“not more than one year after the judgment, order, or

proceeding was entered or taken.” The lower courts have

uniformly held that the one year time limit is absolute.

Carr v. District of Columbia, 543 F.2d 917 (D.C. Cir.

1976); Federal Deposit Ins. Co. v. Alker, 30 F.R.D.

527 (E.D. Pa. 1962), aff'd, 316 F.2d 236 (3rd Cir.),

cert. denied, 375 U.S. 880 (1963). Thus, a litigant who

has been deceived cannot take advantage of the “discovery

rule” which applies to cases of fraud in most jurisdictions

and which delays the beginning of the applicable time

limit until the litigant does or should have discovered

the deception. See e.g., Exploration Co. v. United States,

247 U.S. 435, 446-448, 38 S. Ct. 571, 62 L.Ed. 1200

(1918); 37 Am. Jur. 2d, Fraud and Deceit § 405 (1968).

7

Thus, many litigants who believe a judgment was

obtained against them by fraud or deception are relegated

to the savings provision of Rule 60(b): “This rule does

not limit the power of a court to entertain an independent

action to relieve a party from a judgment, order, or

proceeding .. . or to set aside a judgment for fraud on

the court.” Unfortunately, it is far from clear what is

needed to constitute “fraud on the court” and what

essential element differentiates “fraud on the court” from

the ordinary fraud to which the one-year time limit

applies. Thus, many of the lower courts have found

themselves in agreement with Judge Friendly’s remark

that: “The meaning of the quoted phrase [fraud on the

court] has not been much elucidated by decisions.”

Kupferman v. Consolidated Research & Manufacturing

Co., 459 F.2d 1072, 1078 (2d Cir. 1972); See also

Great Coastal Express, Inc. v. International Brotherhood,

675 F.2d 1349, 1356 (4th Cir. 1982), cert. denied, 459

U.S. 1128 (1983) (“The federal courts that have strug-

gled with the definition of ‘fraud on the court’ in the

context of Rule 60(b) have found such a definition

elusive.”); Kerwit Med. Products v. N&H Instruments,

616 F.2d 833, 837 (Sth Cir. 1980); Wilkin v. Sunbeam

Corp., 466 F.2d 714, 717 (10th Cir. 1972), cert. denied,

409 U.S. 1126 (1973) (“The term ‘fraud on the court’

is a nebulous concept.”).

The only guidance yet provided by this Court concern-

ing the meaning of the term “fraud on the court” is

Hazel-Atlas Co. v. Hartford-Empire Co., 322 U.S. 238,

64 S. Ct. 997, 88 L.Ed. 1250 (1944), a case which

actually pre-dates Rule 60(b). There, Hartford procured

the publication of a spurious trade journal article, sup-

posedly written by a disinterested expert, which was

8

first used to persuade the Patent Office to issue a patent

and later used to persuade the Third Circuit to find the

patent valid and infringed.

Twelve years later, after the true nature of the article

had been revealed, this Court was faced with the question

of whether the judgment could be reopened. This Court

first recognized that the rule of finality of judgments is

not absolute. Instead, courts have “universally recog-

nized need for correcting injustices which, in certain

‘instances, are deemed sufficiently gross to demand a

departure from rigid adherence to the term rule.” 322

U.S. at 244. This Court then held that the “deliberately

planned and carefully executed scheme to defraud not

only the Patent Office but the Circuit Court of Appeals”

required that the earlier judgment be set aside. Id. at

245-246. However, this Court provided little guideline for

determining what species of fraud must be shown to set

aside a judgment other than the general statement that

enforcement of the judgment must be “manifestly un-

conscionable.” Id. at 244-245.

In the absence of recent guidance from this Court,

lower court authority can be found to support a wide

variety of theories of what constitutes “fraud on the

court.” Note, for example, the divergence of opinion

between the majority and the dissent in Great Coastal

Express, Inc. v. International Brotherhood, supra. The

facts of that case presented a compelling case for relief

from prior judgment. In 1970 the International Brother-

hood (IBT) brought a strike against Great Coastal.

Great Coastal then sued IBT on two theories: (1) dam-

ages caused by union violence; and (2) lost business

caused by an illegal secondary boycott. At the trial of

9

this case Great Coastal presented witnesses who testified

to widespread acts of violence directed towards its em-

ployees and property. Two of these witnesses were

Robert Seward, who testified that when he was driving

for the company in October of 1970 a brick came through

his windshield and he saw men running away through

the woods, and William Funai, who testified that he saw

Seward’s company truck with the front windshield broken

and a small hole caused by a small caliber gun in the

trailer. Although the violence was never adequately con-

nected to IBT, and Great Coastal suffered a directed

verdict on the damages for violence portion of the case,

the Company did recover a judgment for over $800,000

for the secondary boycott.

In 1978 IBT filed an action to set aside this judgment.

After a two-day evidentiary hearing, the district court

found that Robert Seward had, in fact, been ordered by

William Funai to take a company truck out on the road

and “tear it up some.” Seward then broke the windshield

of the truck with a brick and fired shots into the trailer

of the truck with a small caliber gun. Both Seward and

Funai admitted at the hearing that their earlier testimony

had been false. The district court further found that

much of the other testimony from the earlier trial con-

cerning violence had been perjured.

The majority of the Court of Appeals adopted a very

- narrow reading of “fraud on the court” and held that

- such fraud “is typically confined to the most egregious

cases, such as bribery of a judge or juror, or improper

influence exerted on the court by an attorney. . . .” 675

F.2d at 1356. Thus, the majority could not say “that

the fraud in this case presents a deliberate scheme to

10

directly subvert the judicial process sufficient to con-

stitute fraud on the court.” Jd.

The dissenting judge was_simply unable to see any

reasoned distinction between the case before him and

Hazel-Atlas. The judge rejected the notion that “fraud

on the court” requires wrongdoing by an attorney or

other officer of the court. Instead, he identified two

elements necessary to constitute “fraud on the court”;

(1) that the matter be of some public importance; and

(2) that the case involve “a deliberately planned and

carefully executed scheme to aeons the court. 675

F.2d at 1364.

The dissenting judge certainly had a strong point. It

is simply impossible to draw a distinction that is less

the arbitrary between manufacturing evidence by means

of a bogus technical article (Hazel-Atlas) and manu-

facturing evidence by damaging a truck (Great Coastal).

See also, Matter of Met-L-Wood Corp., 861 F.2d 1012,

1018 (7th Cir. 1988) (attempting to distinguish Hazel-

Atlas from other cases of manufacturing evidence on

the ground that the concept of “fraud on the court” is

broader in patent cases.)

The numerous other lower court opinions on the sub-

ject are equally unsatisfactory for ascertaining any work-

able test that distinguishes “ordinary” fraud from “fraud

on the court.” For example, most courts state that run-

of-the-mill perjury is mere ordinary fraud. See, e.g.

Serzysko v. Chase Manhattan Bank, 461 F.2d 699, 702

(2d Cir.), cert. denied, 409 U.S. 883 (1972); H.K.

Porter Co., Inc. v. Goodyear Tire & Rubber Co., 536

F.2d 1115, 1118 (6th Cir. 1976); Travelers Indemnity

Co. v. Gore, 761 F.2d 1549, 1551 (11th Cir. 1985);

11

Olson v. Arctic Enterprises, Inc., 21 F.R. Serv. 2d 423

(Dist. N.D. 1976). But see Davsuel v. Davsuel, 195

F.2d 774 (D.C. Cir. 1952). However, some of the courts

State that, at some point perjury can be sufficiently

aggravated to constitute “fraud on the court.” Perhaps,

the most common suggested aggravating element is in-

volvement by an attorney. See Kupferman v. Consolidated

Research & Mfg. Co., supra at 1078; Travelers Indemnity

Co. v. Gore, supra at 1552. Another court has held that

mere circumstantial evidence indicating that an attorney

should have known that certain testimony was perjured

is insufficient to show “fraud on the cotrt.” Cleveland

Demolition Co., Inc. v. Azcon Scrap Corp., 827 F.2d

984 (4th Cir. 1987). Yet another court would apparently

hold that any sort of deliberate subornation is sufficient

to elevate ordinary perjury to “fraud on the court.”

Jungerson v. Axel Bros., Inc., 121 F.Supp. 712, 715

(S.D.N.Y.), aff'd, 217 F.2d 646 (2d Cir. 1954).

The law is also in a state of confusion regarding the

extent to which suppression or manufacturing of evidence

can constitute “fraud on the court.” For example, in

Hawkins v. Lindsley, 327 F.2d 356, 359 (2d Cir. 1964)

the court indicated a showing “that officers of the court

attempted to secure action of the court on the basis of

a document known by them to be false” would be suf-

ficient to constitute “fraud on the court.”-Another court

has stated in a silghtly different context that systematic

destruction of tapes and documents coristitutes “fraud

on the court.” Synanon Church v. United States, 579 F.

Supp. 967 (D.C. Dist. 1984). Neither of these cases

can be easily reconciled with Great Coastal Express, Inc.

v. International Brotherhood, supra, which held that

intentional manufacturing of physical evidence by vandal-

izing a truck does not constitute fraud on the court.

!

12

The allegations in the district court in this case (which

have been substantiated by documentary evidence, but

have not yet been the subject of a trial) present a strong

case for relief. This is not a case of a single witness

perjuring himself in a single trial. Instead, the evidence

indicated concerted action by numerous litigants and

their attorneys in this and hundreds of other lawsuits

to suppress documents and misrepresent the facts. A few

examples of this will suffice. Armstrong World Industries

represented in the Wilson case and in numerous other

cases that it had only manufactured two products con-

taining asbestos, a cork covering made from 1956 to

1959 and a spray made from 1966 to 1968. (Px-S-15).

The truth turns out to be that Armstrong has been in-

volved with the manufacture of insulation containing

asbestos since at least 1910! (Px-K). This information

was of central importance considering that the entire

Wilson trial centered on when these defendants knew

or should have known of dangers associated with asbestos.

If a single litigant had done this in a single lawsuit, it

would not amount to “fraud on the court.” However,

a second litigant, Celotex Corporation has done prac-

tically the same thing. Celotex has represented in hun-

dreds of lawsuits that it was first involved with asbestos

in 1972. (Px-E). The truth turns out to be that it has

been involved in the asbestos industry since at least 1947.

(/d.).

This Court should grant the writ of certiorari in order

to provide further guidance on the difficult question of

what constitutes “fraud on the court” and what distin-

guishes “fraud on the court” from “ordinary” fraud for

purposes of Rule 60(b).

13

ISSUE 2:

Should a proceeding alleging “fraud on the

court be treated procedurally as an “independent

action” rather than as a mere motion for pur-

poses of judgment on the pleadings, regmmenad

judgment, etc.?

A second exceedingly difficult question is how an

action to reopen a judgment for “fraud on the court”

should be treated procedurally. The Court of Appeals

in the present case restricted its review to an “abuse

of discretion” standard. The court applied this standard

despite the fact that no evidence was heard and no trial

occurred in the district court. If this proceeding was

truly an “independent action” as Rule 60(b) states, the

proper standard of review was to review the pleadings

to determine whether “it appears beyond doubt that

plaintiff can prove no set of facts in support of his claim

which would entitle him to relief.” Conley v. Gibson,

355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L.Ed.2d 80 (1957).

Alternatively, in light of the documentary evidence sub-

mitted to the district court, the proper standard was to

review the evidence in a light most favorable to the

plaintiff to determine whether there was any genuine

issue of material fact. See Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L.Ed.2d 202

(1986).

The confusion in the lower courts over how this action

should have been treated procedurally is best illustrated

by Bullock v. United States, 763 F.2d 1115 (10th Cir.

1985) (en banc). There, plaintiffs unsuccessfully sued

the United States in the 1950s for the deaths of livestock

allegedly caused by radiation poisoning as a result of

nuclear tests. Twenty-five years later plaintiff sued to

—inneakiatiaiidi tia a i a

14

set aside the earlier judgment on the basis of fraud. The

district court held a hearing, found that the government

was guilty of suppressing vital information, highly decep-

tive responses to discovery, and “pressuring” witnesses

to alter their testimony, and set aside the judgment.

The majority of the Court of Appeals did not specify

what standard of review applied. Instead, it seemed to

review the evidence de novo, rejected most of the district

court’s findings, and reversed.. The dissenting Judges

chastised the majority for failing to give strong deference

to the district court’s fact-findings under the “clearly

erroneous” standard. Surely, if a proceeding to set aside

a judgment is, in fact, an independent action, it should

have reviewed it under the same standards as any other

lawsuit. Thus, the dissenting judges were right, and the

Court of Appeals in the present case erred by not apply-

ing the standard applicable to dismissals on the pleadings

or summary judgments. See also Madonna v. United

States, 878 F.2d 62 (2d Cir. 1989) (applying Conley

v. Gibson to an independent action to set aside a judg-

ment. )

This Court should also grant review to resolve the

confusion over how an action to set aside a judgment

for “fraud on the court” should be treated procedurally.

15

Respectfully submitted,

ABRAHAM, WATKINS, NICHOLS,

BALLARD, ONSTAD & FRIEND

ROBERT E. BALLARD

800 Commerce Street

Houston, Texas 77002

713/222-7211

LAw OFFICES OF

LAWRENCE MADEKSHO

LAWRENCE MADEKSHO

8320 Gulf Freeway

Houston, Texas 77087

713/641-0251

ESSMYER & HANBY

“ZL 4 blo

CLINARD J. Zo

4300 Scotland

Houston, Texas 77007

713/869-1155

Attorneys for Plaintiffs-A ppellants

16

CERTIFICATE OF SERVICE

This is to certify that three (3) copies of the foregoing

Petition for Writ of Certiorari have been duly served

on all the parties listed earlier or their attorneys of record

in accordance with Rule 28.3.

APPENDIX

A-1

APPENDIX A

Clarence J. WILSON,

Plaintiff-Appellant,

Vv.

JOHNS-MANVILLE SALES CORP., et al.,

Defendants,

Armstrong World Industries, Inc., et al.,

Defendants-Appellees.

United States Court of Appeals,

Fifth Circuit.

May 30, 1989.

Appeal was taken from order of the United States

District Court for the Southern District of Texas, Hugh

Gibson, J., denying motion for relief from judgment

entered in favor of asbestos products manufacturers in

products liability action. The Court of Appeals held that

motion to set aside judgment in favor of six asbestos

products manufacturers in products liability action was

required to be filed within one year of entry of judgment,

rather than within a reasonable time.

Affirmed.

Appeal from the United States District Court for the

Southern District of Texas.

Before CLARK, Chief Judge, RUBIN and DAVIS,

Circuit Judges.

A-2

- PER CURIAM:

_ This appeal involves a consolidated products liability

action brought by fifty plaintiffs against nine defendants.

More than two years after a judgment was entered in

favor of six of the defendants, and following an affirmance

of that judgment by this court, plaintiffs filed a motion

under Fed. R. Civ. P. 60(b) to set aside the judgment.

The district court denied the motion as time-barred.

We affirm.

I.

Fifty plaintiffs brought a products liability action

against nine manufacturers of products containing as-

bestos. The district court ordered separate trials on the

issues of liability and damages. During the jury trial

on general liability, the defendants made a “state of the

art” defense based on Borel v. Fibreboard Paper Products

Corp., 493 F.2d 1076 (Sth Cir. 1973), cert. denied, 419

U.S.. 889, 95 S. Ct. 127, 42 L.Ed.2d 107 (1978),

arguing that they did not know of the dangers of asbestos

prior to the 1960’s. The jury returned a take-nothing

verdict against six of the defendants: Armstrong World

Industries, Inc., Eagle-Picher Industries, Inc., Fobreboard

Corp., Owens-Corning Fiberglass Corp., Owens-Illinois,

Inc., and Standard Insulations, Inc. The jury found that

the remaining three defendants (Celotex , Corporation,

Pittsburg Corning Corp., and Raymark Industries, Inc.)

were potentially liable for product exposure only after

August 1, 1966.

The district court retained jurisdiction as to the three

remaining defendants to conduct further proceedings re-

garding individual damages. As to the six defendants

ili. I

A-3

exonerated from liability, the district court found that

there was no just reason for delay and on August 27,

1985 directed the entry of final judgment as to those six

defendants. This court affirmed the final judgment as to

the six defendants in Wilson v. Johns-Manville Sales

Corp., 810 F.2d 1358 (Sth Cir.), cert. denied, ____US.

—___., 108 S. Ct. 97, 98 L.Ed.2d 58 (1987).

More than two years after the district court entered

judgment, the plaintiffs requested this court to set aside

the prior judgment under Fed. R. Civ. P. 60(b) on

grounds of fraud committed by the defendants. We trans-

ferred the motion to the district court, which denied the

motion as barred by the one-year time limit incorporated

in Rule 60(b)(3). The district court subsequently en-

tered an order pursuant to Fed. R. Civ. P. 54(b) certify-

ing that the denial of the Rule 60(b) motion was a final

judgment. The plaintiffs appeal from the district court’s

denial of the Rule 60(b) motion.

Il.

Rule 60(b) provides a court may relieve a party from

a final judgment, order, or proceeding. It does not afford

relief from interim or interlocutory judgments.

The addition of the word “final” emphasizes the

character of the judgment, orders or proceedings

from which Rule 60(b) affords relief; and hence

interlocutory judgments are not brought within the

restrictions of the rule, but rather they are left sub-

ject to the complete power of the court rendering

them to afford such relief from them as justice

requires.

Fed. R. Civ. P. 60(b) advisory committee’s note.

A-4

The August 27, 1985 judgment to which the Rule 60

(b) motion is addressed was final only as to six de-

fendants. No judgment of any sort was entered with

respect to the remaining three defendants. One of these

three defendants, Raymark Industries, Inc., has advised

this court that it is in bankruptcy proceedings. The jury

verdict finding them potentially liable has not been com-

pleted by proceedings to set the amount of any damages.

' Accordingly, the plaintiffs’ Rule 60(b) motion and the

district court’s denial of the motion must relate only to

the final judgment with respect to the six defendants who

were found not liable to plaintiffs. Although language

does appear in plaintiffs’ motion and in the district court’s

opinion and certificate with respect to the three remain-

ing defendants, such language is beyond the scope of

Rule 60(b). We treat it as surplusage. Our adjudication

in the present appeal does not affect any of the three

defendants as to which no final judgment was entered.

[1] A district court’s denial of a Rule 60(b) motion

will be reversed only for abuse of discretion. Schauss v.

Metals Depository Corp., 757 F.2d 649 (Sth Cir. 1985).

We find no abuse ‘of discretion here.

In their Rule 60(b) motion, plaintiffs alleged that they

were entitled to relief from the August 27, 1985 judgment

because the defendants fraudulently concealed and mis-

represented the fact that they knew of the hazards of

asbestos as far back as the 1930’s. The district court

properly noted that the plaintiffs’ motion must come

under the auspices of either Fed. R. Civ. P. 60(b)(3)

or 60(b) (6). Fed. R. Civ. P. 60(b) provides in pertinent

part:

On motion and upon such terms as are just, the

court may relieve a party or a party’s legal repre-

A-5

sentative from a final judgment, order, or proceeding

for the following reasons:

(3) fraud (whether heretofore denominated intrinsic

or extrinsic), misrepresentation, or other misconduct

or an adverse party; . . . or (6) any other reason

justifying relief from the operation of the judgment.

The motion shall be made within a reasonable

time, and for reasons (1), (2), and (3) not more

than one year after the judgment, order, or proceed-

ing was entered or taken. . . . This rule does not

limit the power of a court to . . . set aside a judg-

ment for fraud upon the court.

Under Rule 60(b)(3), plaintiffs’ motion is subject to

the one-year time limit incorporated in the rule. The

time runs from the date the district court entered final

judgment. Gulf Coast Building & Supply Co. v. Int'l.

Bhd. of Electrical Workers, Local 480, AFL-CIO, 460

F.2d 105, 108 (Sth Cir. 1972). The district court entered

a final judgment as to six defendants on August 27, 1985,

and the Rule 60(b) motion was not brought until more

than two years later. The district court correctly con-

cluded that the motion is time barred under Rule 60(b)(3).

The plaintiffs attempt to bring their motion under the

residual clause of 60(b)(6). Plaintiffs cite Liljeberg v.

Health Services Acquisition Corp., U.S , 108

S. Ct. 2194, 100 L.Ed.2d 855 (1988) for the proposition

that a Rule 60(b)(6) motion is timely if made “within

a reasonabie time.” 7d. 108 S. Ct. at 2204. However,

the Supreme Court’s complete statement reads that a

Rule 60(b)(6) motion may be granted “provided that

the motion is made within a reasonable time and is not

premised on one of the grounds for relief enumerated in

clauses (b)(1) through (b)(5).” Id. We have held that

“Relief under subsection (6) is not available to a movant

A-6

where . . . the relief sought would have been, if not for

the Rule’s time limits, within the coverage of another of

the subsections of the Rule.” Kerwit Medical Products,

Inc. v. N & H Instruments, Inc., 616 F.2d 833, 836 n. 8

(Sth Cir. 1980). See also, William Skillings & Associates

v. Cunard Transp. Ltd., 594 F.2d 1078 (5th Cir. 1979).

The district court correctly found that the plaintiffs’ mo-

tion came within the coverage of Rule 60(b)(3), and

thus relief under Rule 60(b)(6) is unavailable to

plaintiffs. |

Plaintiffs attempt to characterize the defendants’ con-

duct as an “attack upon the judicial machinery” amount-

ing to a fraud on the court. “Fraud upon the court” is

grounds for relief under the savings clause of Rule 60(b)

and is distinguishable from the “fraud . . . misrepresenta-

tion, or other misconduct” under subsection (b)(3).

Rozier v. Ford Motor Co., 573 F.2d 1332, 1338 (Sth

Cir. 1978). However, 60(b) relief based on “fraud upon

the’ court” is reserved for only the most egregious mis-

conduct, and requires a showing of “an unconscionable

plan or scheme which is designed to improperly influence

the court in its decision.” Jd. at 1338 (quoting England

v. Doyle, 281 F.2d 304, 309 (9th Cir. 1960)). The

narrow concept should “embrace only the species of fraud

which does or attempts to, defile the court itself, or is a

fraud perpetrated by officers of the court so that the

judicial machinery cannot perform in the usual manner

its impartial task of adjudging cases that are presented

for adjudication.” Kerwit Medical Products, 616 F.2d at

837 (quoting 7 Moore, Federal Practice § 60.33 at 511

(1971 ed.)). Less egregious misconduct comes within

the scope of Rule 60(b)(3). Id.; Rozier v. Ford Motor

Co., 573 F.2d at 1332.

iki...

A-7

The district court construed the plaintiffs’ allegations

~ as follows:

In short, movants object to the defendants’ “state

of the art” defense because of the existence of various

studies and reports allegedly reporting the dangers

of asbestos as far back as the 1930’s and because

of the contrary position taken by some defendants

in other lawsuits that the dangers of asbestos were

known prior to the mid-1960s.

Plaintiffs did not object to this construction in the district

court, but instead immediately filed their notice of appeal.

Such allegations do not rise to the level of “fraud on

the court” necessary to obtain relief under the savings

clause of Rule 60(b). “[T]he mere nondisclosure to an

adverse party and to the court of facts pertinent to a

controversy before the court does not add up to ‘fraud

upon the court’ for purposes of vacating a judgment

under Rule 60(b).” Kermit Medical Products, 616 F.2d

at 837. The district court correctly found that plaintiffs’

motion came under Rule 60(b)(3). As such, the plain-

tiffs’ motion is time barred.

[2] Plaintiffs also assert that the district court should

have held a hearing regarding the Rule 60(b) motion.

However, a decision to hear oral testimony .on motions

is within the sound discretion of the distriet court. Gary

W. v. Louisiana, 601 F.2d 240, 244 (Sth Cir. 1979).

Here the district court liberally allowed the plaintiffs to

supplement their Rule 60(b) motion to the extent that

the plaintiffs’ total pleadings before the court consisted

of the following: the original application with appendix

and 34 exhibits, a reply of plaintiffs with 51 exhibits,

and a supplemental reply with 41 exhibits. Considering

A-8

the extensive pleadings and the failure of the plaintiffs to

adequately indicate how a hearing would have aided the

court’s determination, we find that the district court did

not abuse its discretion in not holding a hearing. See

Scutieri v. Paige, 808 F.2d 785, 795 (11th Cir. 1987).

Til.

The district court did not abuse its discretion in deny-

ing the plaintiffs’ Rule 60(b) motion. We pretermit any

ruling on the effect, if any, this decision may have on

future proceedings involving the three remaining defend-

ants. The judgment of the district court is

AFFIRMED.

B-1

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 88-2798

CLARENCE J. WILSON,

Plaintiff-Appellant,

Vv.

JOHNS-MANVILLE SALES CORP., ET AL.,

Defendants,

ARMSTRONG WCRLD INDUSTRIES, INC., ET AL.,

Defendants-Appellees.

Appeal from the United States District Court for the

Southern District of Texas

ON PETITION FOR REHEARING

(July 11, 1989)

Before CLARK, Chief Judge, RUBIN and DAVIS, Cir-

cuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed

in the above entitled and numbered cause be and the

same is hereby DENIED.

ENTERED FOR THE COURT:

/s/ CHARLES CLARK

United States Circuit Judge

a

C-1

APPENDIX C

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

GALVESTON DIVISION

C.A. G-81-168

CLARENCE J. WILSON, ET AL

V.

JOHNS-MANVILLE SALES CORPORATION, ET AL

(Filed August 9, 1988)

ORDER

In Borel v. Fibreboard Paper Products Corporation,

et al, the Fifth Circuit established the rights of plaintiffs

to recover for asbestos related diseases. 493 F.2d 1076,

1102. Sometime after September 10, 1973, the date of

the Borel decision, movants state that insurance com-

panies, their insured manufacturers and various medical

experts created the “state of the art” defense. This de-

fense, according to movants, is outright fraud.

The basis of the fraud, and thus movants’ 60(b)

motion, is that the asbestos manufacturers and their

insurance companies knew of the hazards of asbestos

as far back as the 1930’s. Therefore, anytime a fact

finder, as in the case sub judice, finds that manufacturers

did not know of the hazards of asbestos until after the

1930’s, the manufacturers and the insurance companies

have engaged in fraudulent concealment of their knowl-

edge. Movants support this proposition with various

C-2

studies and reports that have existed in the United States

since the 1930’s allegedly warning of the dangers of

asbestos.’ Movants believe that the insurance companies,

manufacturers and their experts should not have been

allowed to assert lack of knowledge of asbestos related

dangers before the mid 1960's in light of the previous—

mentioned studies and reports.

Beyond the studies and reports concerning asbestos,

movants rely on the case of Pittsburgh Corning Corpora-

tion v. The Travelers Indemnity Company, G-84-3985

(E.D. Penn. 1984), in which Pittsburgh Corning sued

Travelers for alleged failure to honor policies presumed

to cover asbestos related injuries. During the course of

the litigation, a prior works manager (Carl Olm) at

Pittsburgh Corning’s facility at Port Allegany, Pittsburgh

testified that he witnessed the shredding of Pittsburgh

Corning asbestos related documents in either 1971 or

1972. Movants. further rely on the case of Fibreboard

Corporation v. The United States, No. 514-84 C (CI.

Ct. 1984), in which Fibreboard alleged that the United

States Government impliedly agreed to reimburse and

indemnify Fibreboard for asbestos related injuries. Part

of the basis of Fibreboard’s argument was that the U. S.

Government knew of the dangers of asbestos as far back

as 1934. Fibreboard cited various studies including the

U. S. Public Health Services Report of 1935 purporting

1. A sample of these reports includes the following: A 1932 US.

Bureau of Mines report to Eagle Picher concerning a limited in-

spection of their rock wool plant in Joplin, Missouri, a 1936 National

Safety Council Report entitled “The Lesser Known Facts About

Common Occupational Diseases” by Dr. Robert B. Hunt and a 1939

Surgeon General’s report entitled “Statistics of Diseases and Injuries

In the United States Navy.” Movants assert that some of these

reports were actively concealed by the asbestos manufacturers but

present them as evidence in support of their 60(b) motion.

eee

C-3

to support Fibreboard’s position that the Government,

by way of these studies and report, must have known of

the dangers of asbestosis in the 1930’s. Fibreboard and

the remaining defendants in the current case asserted that

they did not and could not have known of the dangers

of asbestos prior to the mid 1960’s. Movants find the

above actions by Pittsburgh Corning, Fibreboard, and

the other defendants fraudulent and, therefore, rich soil

) for their Rule 60(b) motion.

In short, movants object to the defendants’ “state of

the art” defense because of the existence of various

studies and reports allegedly reporting the dangers of

asbestos as far back as the 1930’s and because of the

contrary position taken by some defendants in other

lawsuits that the dangers of asbestos were known prior

to the mid 1960’s.

Movants’ Rule 60(b) motion, based on alleged fraud

and misrepresentation,, must come under the auspices of

either Rule 60(b)(3) or Rule 60(b)(6). As to Rule

60(b)(3), movants’ motion fails to meet the one year

time requirement’ and, therefore, must be denied when

considered under Rule 60(b)(3). Under movants’ alter-

native, Rule 60(b)(6), the “residual clause,” a movant

may not use this clause where relief sought would have

been, if not for the time limits, within the coverage of

another of the Rule’s subsections, here 60(b) (3). Kerwitt

Medical Products v. N & H Instruments, 616 F.2d 833,

836 n.8 (Sth Cir. 1980). Thus, movants’ motion also

fails under 60(b)(6). Even if the Court were to consider

2. The one year time limit runs from the date the district court

enters judgment. Gulf Coast Bldg. & Supply Co. v. International

Brotherhood of Electrical Workers, Local 480, 460 F.2d 105, 108

(5th Cir. 1972)

C-4

movants’ grounds of fraud and misrepresentation under

Rule 60(b)(6), movants fail to meet the stringent re-

quirements of Rule 60(b)(6). Bros. Inc. v. W. E. Grace

Mfg. Co., 320 F.2d 594, 609 (Sth Cir. 1963). The

“state of the art” defense profferred by defendants may

be unpalatable to movants but in no way rises to the

level of fraud or misrepresentation contemplated by Rule

60(b). See generally Wright and Miller, Federal Practice

and Procedure, §§ 2860-61 and § 2864. For the above

reasons, movants’ motion is DENIED.

DONE at Galveston, Texas, this the 9th day of August,

1988.

/s/ HUGH GIBSON

United States District Judge

ne,