Petition for Writ of Certiorari — Grimes v. Louisville & Nashville Railroad

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IN THE SUPREME COURT OF THE UNITED S¥ATES

aeieibiedat 5

OCTOBER TERM, 1989

KENNETH C. GRIMES

PETITIONER

VERSUS

LOUISVILLE AND NASHVILLE R. CO.

RESPONDENT

ON WRIT OF CERTIORARI TO THE

UNITED STATES SUPREME COURT

FROM THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

ER EET aeeE aeseFt aS eS SS 2°” =""_”~-

Date:

12/04/89

Kenneth C. Grimes

621 East Gum Street

Evansville, Indiana 47713

1-812-423-1600

Counsel as Pro Se

QUESTIONS PRESENTED FOR REVIEW

I. Whether the Court of Appeals erred

in affirming the District Court's

judgment, that dismissed a motion to

confirm an arbitration award on grounds

of res judicata as a court of equity,

when the operative facts in both suits

were unrelated?

II. Whether the Court of Appeals erred

in affirming the District Court's

judgment that dismissed a motion to

confirm an arbitration award, when the

judgment was grounded in unwarranted,

jurisdictionally defective equity that

violated the Petitioner's constitutional

rights under-Article III § 2 and the

Seventh Amendment?

PARTIES TO JUDGMENT ON REVIEW

Kenneth C,. Grimes v. Louisville §&

Nashville Railroad Company. 583 F. Supp

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II

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ..-----. I

TABLE OF CONTENTS .-ccccccceveesvesees IL

TABLE OF AUTHORITIES .--++++e+e++-e+e+ III-VI

OPINIONS BELOW ccccccccscccccveeeeess VIII

RULES AND STATUTES .-ceccccccssecveese V=VI

JURISDICTION ccccccccccccccccesceceee VIII

STATEMENT OF THE CASE -ccccecseccseecess 1

REASONS FOR GRANTING THE WRIT -+eeeesss 5

_ CONCLUSION e®eeeoeeeseeoevovteeoeaeeeeeeeeeeeeeee 27

III

TABLE OF AUTHORITIES

Cases Page

Atkinson v. Townley, 1 N.J. Law

388 eeeeeeeteeseaeseseeseseeeeeeeeeeeeeeeeee 27

Buchanan v. St. Louis S, R. Co.,

(1966, Tex Civ App 5th Dist) 400

ee me meme MEAG EGE MEO ccccccccces 11

Callant v. Downey, 2 N.J. Marsh

346 eeseeeesceseeeeeeeeeeseeeeeeeeeeeeee ae

C Zarc} Uni Egui )

Cow, 121 A 2d 287, 20 Conn Sup 44 .. 10,14,16

Dalow Industries, Inc. v. Jordache

Enterprises, Inc., 631 F. Supp 779

(S.D. ia ie 1986) @eeeseseeeeeeeeseeeenee1ee#es 7

(1983) CA Mass) 719 F.2d 484

114 BNA LRRM 3076, 99CCHLC 1) 10507 14

Diaz v. Indian Head. Inc., 686

F.2d 558, 562 (7th Civ 1982) ....... 6

Expert Electric, Inc., et al _v.

Levine, (2d cir) 554 F.2d 1227,

1234, cert denied (1977) 434 U.S.

903, 98 S. Ct. 300, 54 L.Ed 24 190. 7

Fitzpatrick v. Sun Life Assur Co,

of Canada, 1 FRD 713 eeeeeveeee eevee 22

Gasbara v. Park-Ohio Industries,

iInc., 655 F.2d 119, 121 (7th Cir

19B1) ccccccccccescccccesccccccccsee 6

Hamilton v. Wort, 3 Black F 68.-++- 27

Hardeman v. Burge, 10 yerg 202----- 27

, Ind. 1974, 218 N.W.

oe en eee Mee, BED ooccccccccecs

Lesser Towers, Inc., v. Roscoe-

Ajax Construction Co., 258

De Me OE BEES cccccccvccscccs

Lee vy City Peoria, 685

Pe ee Ue OE BOOZ) nccccccccces

Mermuk v. Baker, (1973 E.D. Pa)

366 ve Supp 735 eeeseeeee1ee*ewee#ee7en1eee#e#e#e

Jake Lampert Yards, 224 N.W. 248,

176 Minn 622 ®eeseeeeeeseeensteseseeeeeseeee

Mosely v. Simpson, 42 L.J. Ch 730;

16 L.R. Eq. 226; 21 W.R. 694;

28 - & PF 727 @*eeeseeeeese#eeseeseeseeee#ee#8e?s6

IB Moore's Federal Practice

91 0.405 (1984) eeseeeeeeee7e¢e¢e34#8e+eee#e#e

IB Moore's Federal Practice

ee © © 8 See

New-mann vy. Westcott

29 Fed. Rep 49 eeeeeeoeseeeeeeeeeeenee?

, 7? Cent Rep. 720,

105 N.Y. 658; Quinn's App (Pa)

10 Cent Rep 350 seeeseeeoeaeeeeeeee eee

Osborne v, O'Reilly, 8 Cent Rep,

551, 42 N.J. Eq 467 eeeeeeeoeee eee

Porous Plaster Co, v, Sea Jury

43 Hun; 611 eeeoeeoeveeeveeoceeeeeetseoene

mae eI we ee Se Se Se SS SF & & FB

|

Vv

Ve -—

line R. Co. BRE AY a8 BR8 (1970). -.. 10

Rullo v. Rodriquez, (S.D. N.Y.

1985) 604 F Supp 366, 369........00. 7

Stack vy. New York C,. R. Co,

(1958 CA 2 NY) 258 F.2d 739,

SSCCHLC © 7195.ccccccccccceccccecces 11

State ex re] Busick et al _yv

Ewing, 102 N.E. 2d 370 eeeeseeeeeeeee 19

Steffen v,. Farmers Elevator

Service Co,, 109 F. Supp 16,

Pp. 20 eerceoeeeeeeeeeeeseeeeseseseeeeen 9,21

426 pe 2d 828 eeeeeeeseeeeeeseeeeees 15

Travis v. Lowry, (Pa) 7 Cent.

Rep 553 eesveeeeeseeeeeeoseseeeeeeesnese 26

Tyler v,. Savage, (1891) 79-99

S.C. Reporter's ed 143 U.S. 83

(US Book 36) seecesecerereceeesesese 25,26

Chapman, CCA Tex., 4 F.2d 319 Cert

denied, 45 S. Ct. 636, 268 U.S. 700

69 L.Ed BAGS cecdecceccaccescsccccces 17

, (1944)

United States v. Ballard

322 U.S. 78, 88 2 Ed 1148, 64 S. Ct.

882. e@eeoeoevceeeeoeseeeeeeeeeeeeeeeeeeene 24

Constitution

Article III 0 OE eeee#eees 1,15

Seventh Amendment ....ccesceeeseees 1,15

Federal Statues

Memeawew GEDOL ACE .nccccccccccccces 13

ca

ee aes: , :

ie

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~

VI

Co. Te SUE cece ccceesoccess VIII

ee VIII

45 U.B.C.8. § 15h Oty SEG. coveccece R. 100

68 BlS.C.8. $ 183 Second -cccceces — B01

DO © U ceveececcevessacceses 13.24

Steen we Civil / }

FRCP 79 (a) eeoeeeeeeeeeeeveeeeeeeeees 19

FRCP 69(a) eseseeeeveeeeseeeevaeeveeeeeeeen 13

State Statutes, Indiana Code (JC)

Ic 34-4-2-2 eeseeeoeeeeeeeeeeeeeeeees 13

Miscellaneous

Restatement Second of Judgment (1982)

Sect. 24 e*eseeeeeceaeeeeeeseeeeeeeeeeee 11

BOPOOMONT RULO FF .cccccccccscccccess 13,16,23

naRnHE Ee ee Fe ee eS eS SS SS Se &

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VII

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

KENNETH C. GRIMES

PETITIONER

VERSUS

LOUISVILLE AND NASHVILLE R. CO.

RESPONDENT

ON WRIT OF CERTIORARI FROM

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Kenneth C. Grimes, as pro se

petitions for a Writ of Certiorari to

review the decision of the United States

Court of Appeals for the Seventh Circuit,

which affirmed the decision of the

District Court for the Southern District

of Indiana denying Petitioner's motion to

confirm a National Railroad Adjustment

Board award for damages. The Court under

erroneous equity jurisdiction dismissed

the award upon the Defendant's claim of

res judicata when the operative facts

were unrelated as a court of equity.

—_

* 5

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ta

VIII

OPINIONS BELOW

The Seventh Circuit Court of

Appeals's decision affirming the District

Court's denial of Petitioner's motion to

affirm the arbitration award is an

unpublished order as not to be cited per

Circuit Rule 53, under Appeals Court

Cause No. 88-1381.

JURISDICTION

The three-judge-panel decision of

the United States Court of Appeals for

the Seventh Circuit is dated January 27,

1989. Petitioner filed a- petition for

panel rehearing on February 9, 1989. The

petition for a panel rehearing was denied

on September 6, 1989. The petition is

timely having been filed within the

ninety (90) days of this subsequent

judgment. Jurisdiction is present under

28 USC §§ 1254, 1291.

—

CONSTITUTIONAL PROVISIONS IMPLICATED

The provisions implicated in

Petitioner's case, which is reprinted as

verbatim in Appendix U, V is Article III

§2 and the Seventh Amendment.

STATEMENT OF THE CASE

On July 9, 1979, the L & N Railroad

Co. reinstated this petitioner (Grimes)

to a position that impaired his seniority

rights. This action was contrary to the

National Railroad Adjustment Board

decision. (R. 58,59)- Following the

breach, Grimes sought reinterpretation of

the award. On March 30, 1981, the L & N

abolished Grimes's job and furloughed him

making impaired seniority worse and

reducing the remedy under the agreement

between L & N and the International

Brotherhood of Electrical workers as Rule

34 to compensatory damages. (R. 178,179,188)

On June ll, 1981, Grimes filed this

suit in District Court, where the

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practical effect from the action,

concerning abolished job and furlough

caused the suit to be one in damages.

( R. 204) The suit demanded a trial

by jury as to those issues triable by

jury. ( R. 206)

Following demands to strike the jury

demand claim of Grimes by the defendants,

L & N and the IBEW, Grimes reinstated his

demand for a jury trial. (R. 208)

Following a hearing on the

defendants' motions for summary judgment

dated July 9, 1982. The District Court

in error concluded that the defendants

entered motions to strike the jury

demand, but in fact, there was no valid

motion to strike the jury demand. (208,

209,211,212)

This was the basis in which the

District Court acquired and maintained

defective equity jurisdiction. Moreover,

the trial held July 9, 1982, was non-jury

7

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trial mode. On a hearing based on

defective equity jurisdiction, the

District Court entered a final judgment

on February 10, 1984. The decision in a

separate opinion concluded that the L & N

impaired Grimes's seniority rights but

was silent on damages. (R. 58,91,92) The

decision also disposed of the remaining

issues except a retaliation claim that

were incidental to damages.

Following an interlocatory appeal,

trial on the retaliation claim and appeal

to the Seventh Circuit Court of Appeals

and to this Court Grimes returned to the

District Court and on June ll, 1987,

timely entered his motion to confirm the

award. Thereafter the defendant, L & N,

as the sole defendant, entered a motion

to dismiss on the basis that the February

10, 1984 decision was final and res

judicata to Grimes's motion to confirm as

an independent suit. Grimes argued that

.

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4

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the proceeding was not separate and that

the law was adequate for relief. (R.160)

On September 15, 1987, the District Court

entered a judgment that accepted the

béteatent’s Claim of res judicata in a

non-jury trial mode extended from the

July 9, 1982 defectively acquired equity

jurisdiction. The Court dismissed

Grimes's motion to confirm the award and

was silent on equity and damages.

(R.21) The Court of Appeals affirmed

the District Court's decision on res

judicata and was silent on equity, a

controlling questioned sought on this

appeal. (R.11_)

The sole issue sought in complaint

is damages. The District Court passed on

the issue as a court of equity. The

Court of Appeals adopted the decision of

the District Court, leaving the issue of

damages still open, where the simple

ministerial act of Grimes being allowed

/

to amend and update his damages and the

court entering a judgment confirming the

award for those damages is all that is

left.

REASON WHY THE PETITION SHOULD ISSUE

The Court should grant the petition

to settle the question as to whether the

Court of Appeals. affirmation of the

District Court's decision to dismiss a

motion to confirm a National Railroad

Adjustment Board award is objectively

reasonable as an application in equity of

the doctrine of res judicata by the L &

N.

The arguments put forth by the L & N

at District and Appeals Courts are

essentially the same.

The argument by the L & N at

District Court states:

"the doctrine of res judicata

bars Grimes from asserting in

this action or in any separate

action that the award of the

NRAB of June 13, 1979, is not

——— i rs

subject to judicial enforcement

against the L & N." (P. 4

Motion to Dismiss 7/2/87)

' The District Court extended the

argument relying on Gasbara vy. Park-Ohio

Industries, Inc., 655 F. 2d 119, 121 (7th

Cir. 1987), Diaz v. Indian Head, Inc.,

686 F.2d 558,. 562 7th Cir. 1982). See

also IB Moore's Federal Practices fl 0.405

(1984) and see Lee v. City Peoria, 685

F.2d. 196 (7th Cir. 1982).

These cases and the same theory were

relied upon by the District Court (see

R.20) and the Court of Appeals /R.7 )e

In all three arguments, the support

for res judicata is based upon an

argument that the operative facts are the

same in both the proceeding before the

award and in the lawsuit that followed in

District Court, so therefore, the motion

to dismiss confirmation of the NRAB award

is effected by the doctrine of reg

j «

The Appellant (Grimes) argues that

the facts supporting the res judicata

theory herein are not the same and that

the proceeding to confirm the award is

not a separate proceeding. It is held in

Dalow Industries, Inc, v,. Jordache

Enterprises, Inc., 631 F. Supp. 779 (S.D.

N.Y. 1986), "The most important factor in

answering this question is the factual

predicate of the several claims asserted.

For it is the facts surrounding the

transaction or occurrence which operate

to constitute the case of action, not the

legal theory upon which a litigant

relies." (Expert Electric, Inc,.,. et al

ve Levine, (2d Cir.) 554 F.2d 1227, 1234,

cert denied (1977), 434 U. S. 903, 98 S.

Ct. 300, 54 L.Ed. 2d 190, Rullo v.

Rodriguez, (S.D. N.Y. 1985) 604 F Supp

366, 369.)

What are the operative facts that do

not support the theory of res judicata in

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this case?

The facts are as follows:

(A) In the proceedings before the

NRAB, the Appellant sought a claim for

reinstatement with his seniority rights

unimpaired and back pay from a wrongful

discharge. ( R. 93,94 )

(B) Also, the Appellant was an

employee of the L & N. ( R.94)

(C) The remedy under Rule 34 of the

agreement was available. (R.187,188)

The relief sought in District Court

was based on the following facts:

(1) The complaint was filed ina

Federal Court with diversity

jurisdiction. (R.182)

(2) The remedy under Rule 34 of the

agreement made damages the only relief

available in complaint. (R.187,188)

(3) The Appellant's complaint

demanded trial by jury. (R.206)

(4) The Appellant (Grimes) was no

longer an employee of the L & N before

the suit was filed in District Court.

(R.178,179)

(5) The issues raised in complaint

that are incidental to damages were not

issued before the NRAB. (R.91-94)

(6) The issue of seniority rights

impairment only determined the Appellee's

(L & N) liability. (See Steffen v.

Farmers Elevator Service Co,, 109 F Supp.

16, p. 20.)

(7) The motion to confirm the award

was timely filed. (See Indiana Code

34-4-2-2 at [21].)

(8) The Appellant (Grimes) sought

back pay in his complaint for excessive

penalty. Whereas, in the NRAB proceeding

back pay was sought for wrongful

discharge. (R. 203,204,93,94)

The facts associated with the NRAB

proceeding are unrelated to those pursued

in complaint. Appellant (Grimes)

10

"complaint while still an employee

involved matters ina different time

frame" than those made in his complaint.

\Robert E, Fingar v. Seaboard Coast Line

R. Co., 606 F.2d 648 (1979).

The claims asserted by Grimes in the

complaint of this proceeding "were

distinct in time from those asserted in

the first and could not have been raised

in the first administrative action.

Accordingly the present action should not

be barred by the first." (Ibid Fingar v.

Seaboard.) Moreover, the motivation of

Grimes in his complaint was to confirm

the award for a judgment exclusively in

damages. (Conn-Zarchen v. Union

Equipment Co., 121 A. 2d 287, 20 Conn Sup

44.) holds: "The complaint as an initial

step is to seek affirmation of the

award.” (Ibid Zarchen v. Union.) Awards

are not confirmed by the NRAB. The

Claims put before the NRAB would not make

JJ dd

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Whig dai,

a convenient trial unit. (Restatement

[second] of judgmements (1982) section

24). "The Railway Labor Act, 45 USCS

§151 et seq., does not give right to

railroad employees to sue in Federal

Court for wrongful discharge." (Stack v.

New York C, R. Co., (1958 CA 2 NY) 258

F.2d 739, 35 CCCHLC 7195) and that

"claims for wrongful discharge under

railroad collective bargaining agreements

are subject to resolution only by

compulsory administrative procedures

provided by collective agreement and by

Railway Lator Act." (Mermuk v. Baker,

(1973, E. D. Pa) 366 F Supp 735.) Thus

Grimes, the Appellant herein, as well as

other “employees who were not discharged

could not defeat the exclusive

jurisdiction of the National Railroad

Adjustment Board merely by bringing

action as a common-law suit for wrongful

discharge. (Buchanan v. St. Louis S. R.

12

Co., (1966, Tex Civ. App. 5th Dist.) 400,

SW 2d 362, writ ref nre.) Further, as a

trial unit, it would not be convenient on

the grounds that the parties ina

proceeding before the NRAB do not expect

trial by jury mode. The Appellant

demanded a jury trial in his complaint

under diversity jurisdiction. (R. 206).

Moreover, the L & N abolished the

Appellant's job and furloughed him before

the suit was filed June 1l, 1981. The

earlier suit sought reinstatment. In

this proceeding there is no remedy for

reinstatement due to the abolished job.

The Appellant cannot be reinstated to

something that does not exist. Nor was

the Appellant (Grimes) an employee when

the complaint was filed.

The L & N and Grimes do not expect

reinstatement to be a factor to be

considered on the complaint, only damages

“

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’ .

13

on the grounds that (1) the L & N did

abolish the job and along with that part

of the remedy under Rule 34 of the

agreement, and (2) Grimes believes the

suit for damages exclusively is adequate

and that there is adequate law to

accomplish confirmation of the award as a

judgment for damages.

The Court of Appeals judgment is in

error in its claim that Grimes could have

raised his motion to confirm earlier but

didn't. The agreement follows the

Railway Labor Act. The Act under § 153

Second provides that procedure is to be

followed under Federal Rules of Civil

procedure. Rule 69{a) and 9 USCS §9

provide that upon scarcity of point in

Federal cases, state law may be followed.

Indiana Code pursuant to IC 34-4-2-21

adopts other law in states with uniform

arbitration statutes. Thus, the motion

to confirm was timely and appropriate.

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14

(9 uscs § 9 Derwin v. General Dynamics

Corps., (1983 CA Mass) 719 F.2d 484, 114

BNA LRRM 3076, 99 CCHLC 110507). The

Indiana statute allows for six year

period after defendant's answer.

(Har-Mar, Inc. v. Thorsen & Thorsen,

Inc., 1974, 218 NW 2d 751, 300 Minn 149.)

Also, following the same point as made in

other state law. It has been held that

"confirmation of an arbitration award is

not a separate proceeding.” (See Lesser

r i . ~A; — bi

Co., 258 F. Supp. 1005 (1966) at (1) and

that in "the complaint the initial step

is to seek affirmation of the award."

(Conn-Zarchen v. Union Equipment Co., 121

A 2d 287, 20 Conn Sup 44.)

The Appeals Court's judgment refers

to a cause of action as having the same

operative factors. The Court makes no

distinction between a cause of action

based on the sustantive law of legal

ae Ee HE ee ae ae FEF FE Fe FE SF FS & F&F FB

15

liability as opposed to the right to

pursue a judicial remedy as a right to

enforce a cause of action by suit, they

are not "synonymous" with a cause of

action. (Thorgaard Plumbing & Heating

Co, v. County of King Wash), 426 P, 2d

828.) .

The Court of Appeals should not have

affirmed the District Court's decision on

grounds of res judicata, the so called

two suits used by the Defendant L & N are

unrelated as to the case operative facts.

Reasons why the Court of Appeals

judgment is in error for affirming a

District Court judgment in a dismissal of

a motion to confirm as an unwarranted

proceeding in equity, which violated

Article III § 2 and the Seventh Amendment

of the Constitution.

The abolishment of Grimes's job and

the subsequent furlough on March 30,

1981, eliminated all of the remedy under

.

16

Rule 34 of the agreement except that part

that reads "and compensated for the wage

loss if any resulting from said

Suspensions or dismissal."

This action made the major relief

sought in complaint filed June ll, 1981,

an action for damages. No other relief

could be had except that which was left

under Rule 34 of the agreement.

Reinstatement cannot be applied as relief

if the job has been abolished. The

complaint which had other charges, became

incidental to the main relief of damages.

It is held: "Of course, that if the

veteran (Grimes) sought only damages, his

action would be purely legal in

character, with attendant right to jury

trial." (IB Moore's Federal Practice

38.24 (2) 2d Ed. 1951). "That the

complaint as an initial step is to seek

affirmation of the award." (Conn-Zarchen

v. Union Equipment Co., 12] A.2d 287, 20

.

17

Conn Sup. 44). "As in other law actions,

the parties in an action on an award are

ordinarily entitled to a jury trial

(Minn-Lampert Bros Lumber Co, v,. Jake

Lampert Yards, 224 NW 248, 176 Minn. 622)

"and to have issues of fact properly

raised by the pleadings and the evidence

determined by the jury." (US Chickasha

Cotton Oi] Co, v, Chapman, C,C,A,. Tex., 4

F.2d 319, cert denied 45 S. Ct. 636, 268

U.S. 700 69 L.Ed. 1164) "under proper

instructions from the court."

(Minn-Lampert Bros, Lumber Co, v, Jake

Lampert Yards, 224 NW 248, 176 Minn.

622.)

Grimes in his complaint demanded a

jury trial. (R.206) Following a period

of discovery the defendants, L & N

Railroad and International Brotherhood of

Electrical Workers Local 1353, entered

motion to strike the jury demand.

(R.207 ) Thereafter on May 6, 1982,

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18

Magistrate Endsley entered order on a

pretrial held April 5, 1982. The Court

stated: (R.207,208)

New representation for Grimes sought

an extension of time on June 16, 1982,

and on June 25, 1982, responded to both

defendants" motions to strike jury

demands by restating demand for jury

trial mode.

On July 9, 1982, the District Court

held a trial in a npon-jury trial mode.

The Court raised the question of a jury

trial and stated: ( R. 211,212 )

What is important, is that (a) the

motion to strike jury demand argument

came from one of the defendant attorneys;

(b) the motion came from the attorney

(Mr. Wolly) for the IBEW; (c) the motion

to strike jury demand was in reference to

a Title VII claim that was independant

and incidental to the damages sought; (d)

the claim as to Title VII, as it pertains

lige dash aaa

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19

to the IBEW had been disposed of earlier

by agreement on May 6, 1982; (e) there

was no motion to strike jury demand put

forth by the L & N; and (f) the last jury

demand made was by plaintiff's attorney

June 25, 1982. (R.208)

Pursuant to FRCP 79(a) “the

substance of each order or judgment of

the court"... is put into docket sheets.

Pursuant to Indiana Statutes:

"Where transcript was certified

by Clerk of Circuit Court, the

certificate imparted absolute

verity." (

et al _ vy. Ewing, 102 NE 2d 370)

Docket sheet entries are proof and

acceptable evidence.

Following the hearing on July 9,

1982, the District Court made the

following entry on the docket sheet:

"Deft's enter motion to strike

jury claim court to rule on

these matters." (R.208,209

Only one defendant argued a point as

to a jury demand. The point argued was a

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20

nullity, because Magistrate Endsley on

May 6, 1982, had disposed of the claim

from an agreement between the plaintiff

and the IBEW. (R.207,208)There was no jury

demand made at the July 9, 1982 hearing,

and the District Court's entry is in

error. (R.211,212) The District Court's

rule on these matters was indeed the

final District Court Judgment of February

10, 1984. The last jury demand was made

by Grimes on June 25, 1982. The

aforementioned is how the District Court

acquired its defective equity

jurisdiction.

The ruling on the seniority rights

impairment issue in the February 10, 1984

judgment was stated in a memorandum

Opinion and distinct from the legal

claims ruied on. (R.56,59) It is

undisputed that the ruling on the

seniority rights impairment issue as a

ruling in equity was proper. The issue

EO at Oe

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21

was incidental to damages as it pertained

to mode of trial, but flowed directly

from the breach on the award and was

determinative of the L & N's liability.

(See Steffen v. Farmer's Elevator Service

Co., 109 F. Supp. 16, p. 20.) ( R.98)

The District Court's February 10,

1986 judgment came directly from the July

9, 1982 hearing in a non-jury trial mode.

(R. 208,209) Note: The absence of a trial.

The District Court order was silent

as to damages in the final February 10,

1984 judgment. ( R.91,92)

Following a trial on a retaliation

clain, and appeal on the enforcement

issue, Grimes filed on June ll, 1967, his

motion to confirm. (R.107) On September

15, 1987, the District Court entered its

order denying the motion to confirm for

damages on grounds of res judicata argued

by the defendant in a motion to dismiss,

filed July 2, 1987. (R.20,21,154)

22

The hearing on the motion to confirm

was in the non-jury trial mode. (R.18)

As shown earlier, the procedure to

confirm an award is a legal proceeding.(R.

144sec(3) The District Court extended its

defectively acquired equity jurisdiction

to Grimes motion to confirm. This

deprived Grimes of his rights under the

Seventh Amendment of the jury trial mode.

The District Court's order denying

confirmation of the award ignored the

"nature of the cause of action and

appropriate remedy as they exist

thereunder." (Fitzpatrick v. Sun Life

Assur Co. of Canada, 1 FRD713.) "If the

cause of action is legal in its nature

and formerly remedial in a court of law,

the right to trial by jury cannot be

denied." (Ibid Fitzpatrick v. Sun Life).

In the appellant's motion to

confirm, it was argued, “Except as

otherwise provided, an application to the

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court under this chapter shall be by

motion and shall be heard in the manner

and upon the notice provided by law,"

(R.145) and it was also argued, "However,

the last sentence in Rule 34 represents,

based on standards of the National

Railroad Adjustment Board, a total plain

adequate and complete remedy. To address

the wrongs here, the Appellant (Grimes)

made other argument in defense of the

right to confirm the award. Silence on

damages caused no distinction between law

and equity. (R.91,92) In the February 10,

1984 Final Judgment, the District Court

separated the equity ruling of seniority

right impairment by putting it ina

memorandum, opinion attached to the legal

decision. (.56 ) A distinction existed.

But, on the order dismissing the motion

of September 15, 1987, there is no

distinction by words or separate

documents. (R.18-25) Through silence and

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24

the absence of any distinction, the

District Court was in violation of Art.

III § 2 of the Constitution. (R.105,106)

The Court of Appeals did not address

the issue of equity jurisdiction in its

orders. The Appellant's argument was an

argument against equity interference in

his main brief. The argument was

established in the questions and

presented throughout the entire brief.

(R.2-11) In spite of the Appellant's

arguments, the Court of Appeals omitted

any judgment on equity, (R.162) a

controlling issue of this case. (United

States v. Ballard, (1944) 322 US 78, 88

L.Ed 1148, 64 S. Ct. 882 )

The error the District Court made on

the jury demand issue made its decision

in equity on the motion to confirm

decisions of September 15, 1987, more

defective. The Court of Appeals affirmed

the District Court's decision without

including the issue of equity in its

judgment.

It has been held that: "If a plain

defect of jurisdiction appears at the

hearing or on appeal, a court of equity

will not make a decree," (See Tyler vy.

Savage, 1891, 79 Supre Court 99, 143 US

83), meaning that although this is a

proceeding on appeal, the objection can

be raised and that the District Court

erred as to damages when it entered a

judgment in equity after the defect, even

though the defect grew out of a general

argument already raised in District Court

and on appeal.

Also, a decision in equity is

incompatible with res judicata. It has

been held: "An action to procure

equitable relief cannot be maintained

when the relief sought has already been

awarded by judgment in another action

between the same parties." (Porous

26

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Plaster Co, v. Sea Jury, 43 Huni, 611) as

used in Tyler v. Savage. The L & N

sought equity relief by raising a motion

to strike the jury demand. (R.207)

Accordingly the relief sought

included the NRAB decision by operative

facts. When the NRAB decision was a

previous judgment that is a bar. (Tyler

VY. Savage) Moreover, "where the remedy

at law is adequate, no ground exists for

the interposition of equity." (Qakville

Co, vy, Double Pointed Tack Co., 7 Cent

Rep. 720, 105 NY 658, Quinn's App. (Pa)

10 Cent Rep.) 350, Travis v. Lowry (Pa) 7

Cent. Rep 553; New-man v. Westcott, 29

Fed. Rep 49.) (R.140)

Further, this case is one in

damages, "a one question of damages is

not within the jurisdictions of equity."

(Osborne vy. O'Reilly, 8 Cent Rep, 551, 42

N.J. Eq. 467. The Appeals Court affirmed

a District Court decision that was

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dismissed on res judicata. It is held:

-"Neither a court of law nor equity will

interfere to set aside an award, unless

corruption, partiality, misconduct, or

irregularity is distinctly proved against

the Arbitrator; mere suspicion is not

sufficient. (Mosely v. Simpson, 42 L. J.

Ch. 730; 16 L. R. Eq. 226; 21 W. R. 694;

28 L.T.N.S. 727; Atkinson vy. Townley, l

N.J. Law 388, Hardeman v. Burge, 10 yerg

202; Ham Lton v. Wort, 3 Black F 68;

Callant v. Downey, 2 N. J. Marsh 346.)

Res judicata is not one of the reasons

for dismissal of an award. The Court of

Appeals should not have affirmed the

District Court's decision.

CONCLUSION

The Court of Appeals erred when it

affirmed the District Court's judgment on

grounds of res judicata. The doctrine as

applied to the operative facts were

unrelated and controlled by a different

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28

time frame. The Court of Appeals also

erred in omitting the controlling

question of equity for equity relief

cannot be had when the relief sought has

already been awarded by a judgment in

another action between the two parties.

Nor does equity support damages. The

Appeals Court affirmed a judgment that

was jurisdictionally defective. The

District Court had acquired it's equity

interference on an error. This error

denied the Appellant his rights by jury

trial in violation of the Seventh

Mabatment and in its silence made no

distinction between equity and law in

violation of Article III § 2 of the

Constitution in affirming a District

Court's decision. Appellant, motions to

this court to affirm the award,

2956, Docket 7776. The Court of Appeals

has in the above sanctioned a departure

from judicial proceedings by a lower

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29

court.

For the above reasons this petition

should issue.

PRAYER FOR RELIEP

Wherefore the Petitioner prays:

(A) This Court will grant

certiorari.

(B) Reinstate the action on the

award with instruction.

(C) Void the Appeals and District

Court decision for being jurisditionally

defective.

(D) Confirm the award for judgment

in damages from the complaint, as

calculable, already in stipulation by the

parties and only in need of amendment by

Petitioner accepting motion herein on

Award No. 7956, Docket No. 7776.

(E) Or in the alternative, void the

Appeals and District Court decisions,

reinstate and confirm the award, and

remand to the Court of Appeals for

30

judgment on damages as set out in the

appeals brief as amended.

(F) That this court not remand to

the District Court herein on the grounds

that it has been prejudiced by the

proceedings.

(G) Void any sanctions in these

appeals.

nneth C. Grimes

21 East Gum Street

Evansville, Indiana 47713

1-812-423-1600

Counsel as Pro Se

_ CERTIFICATE OF MAILING

The undersigned, counselor pro se,

hereby certifies that he caused to be

mailed, postage pre-paid, first class, or

personally served, on this 4th day of

December, 1989, the following copies of

this Petition for Certiorari:

Forty (40) copies to

Clerk, United States Supreme Court

Washington, D.C. 20543; and

Three (3) copies to

Attorney Galen J. White, Jr.

Boehl, Stopher, Graves & Deindoerfor

United Kentucky Bank Bldg.

One Riverfront Plaza

Louisville, Ky. 40202

Telephone 1-502-589-5980;

Three (3) copies to

Attorney F. Wesley Bowers

Bowers, Harrison, Kent & Miller

Fourth Floor, Permanent Savings Bldg.

Evansville, Ind. 47708

Telephone 1-812-426-1231.

nneth C. Grimes, Pro Se

21 East Gum Street

Evansville, Indiana 47713

1-812-423-1600

Counsel as Pro See