Opposition Brief — Bishop v. Oasis Oil Co.

Suprenr2 Court, U.S.

ad «> FILED

FEB 20 1990

QP fetimnsd 30 | meen

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 1989

DISTRIBUTED

FEB 20 1990

TED BISHOP, Petitioner

Vv.

OASIS OIL COMPANY, AND DAVID FOURACRES,

Respondents

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

RESPONSE TO PETITION FOR WRIT OF CERTIORARI

ss = SS = SS EE SE SS SE SS SE ES EEE EE EE EE EE SE Se SS

David C. Anson, Esq.

DECONCINI MCDONALD BRAMMER

YETWIN & LACY, P.C.

2525 E. Broadway Blvd.

Suite 200

Tucson, AZ 85716-5303

(602) 322-5000

Attorneys for Respondents

No. 89-1116

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 1989

TED BISHOP, Petitioner

Vv.

OASIS OIL COMPANY, AND DAVID FOURACRES,

Respondents

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

-

RESPONSE TO PETITION FOR WRIT OF CERTIORARI

David C. Anson, Esq.

DECONCINI MCDONALD BRAMMER

YETWIN & LACY, P.C.

2525 E. Broadway Blvd.

Suite 200

Tucson, AZ 85716-5303

(602) 322-5000

Attorneys for Respondents

QUESTION PRESENTED

Whether the District Court properly

exercised its discretion in dismissing

Petitioner’s Complaint as against all

Respondents herein for failure to timely

serve his Summons and Complaint in this

matter pursuant to 28 U.S.C. § 4(j).

atie

ONTEN

Page

UTHOR Vv

SUMMARY OF ARGUMENT. . 1

ARGUMENT . . . . * . . . . . * *. *. . . . 3

PETITIONER’S REQUEST FOR A

WRIT OF CERTIORARI SHOULD BE

DENIED BECAUSE THE TRIAL

COURT DID NOT ABUSE ITs

DISCRETION IN DISMISSING

PETITIONER’S COMPLAINT FOR

FAILURE TO SERVE

RESPONDENISO:e © © © © © © © 8 8 3

Tenn fF 6 » © © © 6» © © © &© © & © »« iz

CERTIFICATE OF SERVICE . . ~~ - «© « « « 13

APPENDIX B:

(i) District Court Order dated-

August 29, 1986

(ii) District Court Order dated

October 31, 1986

(iii) District Court Order dated

December 11, 1986

(iv) Plaintiff’s Motion to Extend

Deadline Previously Set by

the Court, dated December

23, 1986

(v) District Court Order dated

“ December 30, 1986

-iii-

(vi)

(vil)

(vill)

(x1)

District Court Minute

dated March 10, 1987

District Court Minute

dated March 18, 1987

District Court Minute

dated April 2, 1987

District Court Order

June 1, 1987

District Court Minute

dated June 16, 1987

District Court

Order

Order

Entry

dated

Entry

Order

dismissing case, dated July

31, 1987

-iv-

TA OF AUTHORITIES

Cases: Page

Greco v. Stubenberg, 859

F.2d 1401 (9th Cir. 1988) Ss 2 © « « oO

Link v. Wabash R. Co., 370 U.S.

626,82 S.Ct. 1386, 8

L.Ed.2d 734 (1962). . S, 2, 6, 230, 23. 22

SUMMARY OF ARGUMENT

In his Petition for a Writ of

Certiorari, Petitioner Ted Bishop asks this

Court to review a judgment of the Ninth

Circuit Court of Appeals affirming the

Arizona District Court’s dismissal of his

personal injury diversity action for failure

to timely-serve Respondents. A federal

court has inherent authority to dismiss

actions for failure to prosecute and this

Court should not disturb a district court

dismissal unless it appears that the lower

court clearly abused its discretion.

In this case, the District Court

acted well within the permissible range of

its discretion in dismissing Petitioner’s

lawsuit. The District Court gave Petitioner

several opportunities through time

extensions over a one year period of time to

serve Respondents, during which, on at least

two occasions, Petitioner was warned through

-l-

court order that failure to serve in the

time allotted would result in dismissal.

Petitioner also has never offered any excuse

for failing to follow the District Court’s

final order with respect to service of

Based on this record, it cannot be

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Writ of Certiorari should be denied

PETITIONER’S REQUEST FOR A WRIT OF

CERTIORARI SHOULD BE DENIED BECAUSE THE

TRIAL COURT DID NOT ABUSE ITS DISCRETION IN

DISMISSING PETITIONER’S COMPLAINT FOR

FAILURE TO SERVE RESPONDENTS.

This is a personal injury diversity

action arising out of an automobile accident

which allegedly occurred in Libya in July,

1984. Petitioner Ted Bishop alleges that he

was riding in a jeep with Respondent David

Fouracres, a British citizen employed by

respondent Oasis Oil Company (*”Oasis”) when

it hit a soft spot resulting in injuries to

Bishop.

On July 25, 1986, three days before

the applicable statute of limitations was to

expire, Bishop filed his Complaint in the

United States District Court for the

District of Arizona (the "District Court”).

One year later, on July 31, 1987, after

numerous time extensions were given to serve

process, and after at least twice being

warned that failure to comply with the

District Court’s order requiring service on

Respondents within the time allotted would

result in dismissal, Petitioner’s Complaint

was dismissed by the District Court for

failure to serve Respondents.

Petitioner appealed the District

Court’s dismissal to the Ninth Circuit Court

of Appeals and the Ninth Circuit affirmed

the dismissal. Through his Petition for a

Writ of Certiorari, Petitioner now asks that

this Court review the District Court’s sua

sponte dismissal.

Whether or not the District Court’s

dismissal should be reviewed is governed by

this Court’s decision in Link v. Wabash RB.

Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d

734 (1962). In Link v. Wabash R. Co., this

Court reviewed the dismissal by the district

court of Link’s case for failure to attend 4

pretrial conference. In affirming the

-4-

dismissal, the Court recognized as

“unquestioned” a federal district court’s

“inherent power” to dismiss cases sua sponte

“to achieve the orderly and expeditious

disposition of cases”, 370 U.S. 626, 630-31,

82 S.Ct. 1386, 8 L.Ed.2d 734, and held that

“(wjhether such an order (dismissing a case

sua sponte] can stand on appeal depends not

on power but on whether it was within the

permissible range of the court’s

discretion.” 370 U.S. 626, 633, 82 S.Ct.

1386, 8 L.Ed.2d 734. The Court reviewed the

record and circumstances behind the

dismissal, including the history of the case

and numerous earlier failings of petitioner

which caused delay in the case, and

concluded that “we are unable to say that

the District Court’s dismissal of this

action for failure to prosecute .. .

amounted to an abuse of discretion.” 370

U.S. 626, 633, 82 S.Ct. 1386, 8 L.Ed.2d 734.

-5-

Applying the standards set forth in

Link v. Wabash R. Co., supra, a review of

the i in this case shows that the

District Court did not abuse its discretion

when it dismissed Petitioner’s Complaint.

To the contrary, the record shows that the

District Court gave petitioner over one year

to properly file his Complaint and serve

Respondents before it dismissed the action.

Petitioner filed his case on July 25, 1986.

On August 29, 1986, the District Court gave

Petitioner a sixty day extension to find and

serve Respondents, with a warning that

otherwise “the case shall be dismissed.”

Appendix B, Page 9 On October 31, 1986,

the District Court gave Petitioner another

1” appendix B” refers to the Appendix

which immediately follows the text of this

Response. The Appendix is designated

“Appendix B” to distinguish it from the

Appendix attached to Petitioner’s Petition for

Writ of Certiorari which has been designated

as “Appendix A.”

-6-

sixty days to serve Respondents. Appendix

B, Page ii. On December te 1986,

Petitioner’s counsel was allowed to withdraw

from the case (Appendix B, Page iii), and on

December 23, 1986, Petitioner’s new counsel

made a request for an extension of time to

file an Amended Complaint and serve

Respondents. Appendix B, Page iv. On

December 30, 1986, the District Court

granted this request and gave Petitioner

until March 2, 1987, to file his Amended

Complaint. Appendix B, Page v. Petitioner

filed his Amended Complaint on February 24,

1987, but failed to serve Respondents, and

on March 10, 1987, the District Court issued

a Minute Order setting a March 30, 1987,

hearing for Petitioner Bishop to “show cause

why this case should not be dismissed for

failure to serve any defendant within the

extensions granted by this Court... .”%

Appendix B, Page vi. This March 30, 1987

oFa

hearing date was reset to April 2, 1987, and

later to June 1, 1987, giving Petitioner

edditions) time to obtain service. Appendix

B, Pages vii and viii. On June 1, 1987, the

District Court entered an Order vacating the

June 1, 1987 deadline and set June 8, 1987

as the date for Petitioner to “show cause

why this action should not be dismissed as

to defendant David Fouracres, who has not

been served since the case was filed on July

25, 1986", and further set July 1, 1987 as

the date by which Petitioner “shall file a

brief showing why the service he has

effected on the corporate defendant (Oasis)

is valid... .” Appendix B, Page ix. On

June 16, 1987, the District Court granted

Petitioner another thirty days to serve

Re: pondent Fouracres.* Appendix B, Page x.

“ On this same date, the District

Court also vacated a default judgment, which

was entered following service on Oasis,

because service on Oasis was revealed to be

-8-

No brief was filed by Petitioner by

July 1, 1986 demonstrating valid service on

Oasis. After the July 16, 1987 deadline for

serving Respondent Fouracres passed, the

District Court, on July 31, 1986, dismissed

Petitioner’s Complaint for “failure to serve

the defendants within the limit of

Fed.R.Civ. 4(j) and of court authorized

extensions to the time limits thereof.”3

Appendix B, Page xi.

Given this record, it cannot be said

that the District Court abused its

discretion in dismissing Petitioner Ted

Bishop’s Complaint. The District Court,

over a one year period of time, gave

numerous time extensions to properly serve

defective.

3A more complete summary of the record of

this case can be found in the Ninth Circuit

Court of Appeals’ unpublished opinion

affirming the District Court’s dismissal found

at Page iii of Appendix A, attached to

Petitioner’s Petition for Writ of Certiorari.

-9-

Respondents Oasis and Fouracres, and

repeatedly warned Petitioner that failure to

abide by its orders dealing with service of

process would result in dismissal.4

Significantly, Petitioner has failed to give

any excuse for his failure to follow the

District Court’s June 1, 1987 Order

(Appendix B, Page viii) which, when not

followed, resulted in the dismissal.°>

Under these circumstances, and according to

standards established by this Court twenty-

4The Ninth Circuit recently held that

warnings by the district court that dismissal

will result for failure to abide by court

orders is sufficient basis to support a sua

sponte dismissal. Greco v. Stubenberg, 859

F.2d 1401, 1404 (9th Cir. 1988).

5

Nor is there any argument that

dismissal of Petitioner’s Complaint because of

his counsel’s unexcused failure to abide by

court orders imposes an unjust penalty on the

client. As pointed out by Mr. Justice Harlan

in j Vv. W , 370 U.S. 626, 634-

35, n.10, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962),

a client is held to accept the consequences of

freely selecting his counsel, is bound by the

counsel’s inaction, and has the remedy of a

malpractice action against his counsel.

-10-

eight years ago in Link v. Wabash R. Co

2.7

supra, the District Court’s discretion was

properly exercised. Petitioner Bishop’s

Petition for a Writ of Certiorari,

therefore, should be denied.

-ll-

CONCLUSION

For the foregoing reasons, and as

per the standards set out in Link v. Wabash

R.Co., 370 U.S. 626, 82 S.Ct. 1386, 8

L.Ed.2d 734 (1962), Petitioner Ted Bishop’s

Petition for a Writ of Certiorari should be

denied.

RESPECTFULLY SUBMITTED this /E day

of February, 1990.

DeCONCINI MCDONALD BRAMMER

YETWIN & LACY, P.C

rs oe

py: (4 [uy

David C. Anson

2525 East Broadway Blvd.

Suite 200

Tucson, Arizona 85716-5303

(602) 322-5000

Attorneys for Respondent

seis

CERTIFICATE OF SERVICE BY MAIL

I am a citizen of the United States and

employed in the County of Pima, State of

Arizona, in the offices of DeConcini

McDonald Brammer Yetwin & Lacy, P.C., and am

a member of the bar of this Court. My

business address is 2525 E. Broadway, Suite

200, Tucson, Arizona 85716. On February 16,

1990, I served upon the Petitioner the

following:

RESPONSE TO PETITION FOR

WRIT OF CERTIORARI

by placing three copies thereof, enclosed in

a sealed envelope with postage thereon fully

prepaid, in the United States Post Office

mail box at Tucson, Arizona, addressed as

follows, in accordance with Rule 28 of the

Rules of the United States Supreme Court:

Thomas J. Davis

DAVIS & EPPSTEIN, P.C.

110 South Church Avenue

Box 48

Tucson, AZ 85701-1603

Attorneys for Petitioner

-13-

and

Of Counsel:

William B. Blaser

WILLIAM B. BLASER, P.C.

7493 North Oracle Rd, Suite 105

Tucson, AZ 85704

and by placing the original and forty copies

thereof, enclosed in a sealed envelope with

postage thereon fully prepaid, in a United

States Post Office mail box at Tucson,

Arizona, addressed as follows, in accordance

with Rule 28 of the Rules of the United

States Supreme Court:

Joseph F. Spaniol, Jr.

Clerk of the United States

Supreme Court

One First Street, N.E.

Washington, D.C. 20543

Executed on February 16, 1990, at Tucson,

Arizona. I certify under penalty of perjury

that the foregoing is true and correct.

DeCONCINI McDONALD BRAMMER

YETWIN & LACY, P.C.

i

By ALAN Lyd

David C. Anson

2525 East Broadway Blvd, #200

Tucson, Arizona 85716

Attorneys for Respondent

-14-

Ps

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aintifft, N . 86-423 TUC WDB

4

vs RDER

. Defendants

10 ni?

present corporate status of Defendant Oasis Oil, and good cause

: shown therefor,

7 IT IS ORDERED that Plaintiff comply with the court Order of

13

August 21, 1986 by sufficiently alleging the citizenship of the

corporate defendant in an amended complaint within 60 days from

the date of this Order, or the case shall be dismissed.

A

Dated August #

—_

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20 | AAAART™~ ret Ll I

WILLIAM D. BROWNING

21 U.S. District Judge

(ii)

manenais 0. Eo

San ‘FILED

mesos rrcctn ni UF, coe OCT 31 1986

- P o

attorney ‘or

IN THE UNITED STATES OLSTRICT COURT

STATE OF ARIZONA

OISTRICT OF PIMA

TED BISHOP,

Plaincifet, NO. CIV 66-423 TUC wOB

vs. ORDER

OASIS OIL COMPANY, «a

Delaware corporation, et al.,

Defendants.

— ee ee eee ee ee ee ee ee ee ee

UPON cequest of counsel and good cause appearing

“necefore,

IT IS WEREBY ORDERED thet Plaintiff may heve an

extension of sixty (60) additionel days in which to obtain

service on the Defendants. Seid sixty (60) days will cun on

December UI , 1986.

DONE IN OPEN COURT this 5 / Gay of October, 1966.

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(iii)

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Naso cocae |W ot

2 422 10 ot

hee COMER AER S80 te

oS

Attorney ‘or

IN THE UNITEO STATES DISTRICT COURT

STATE OF ARIZONA

CISTRICT OF PIMA

TED BISHOP,

Plaintiff,

vs. OROER

OASIS OIL COMPANY,

et al.,

Defendants.

ee ee ee

UPON Motion of counsel, and good cause

| tneceforce,

IT IS HEREBY ORDERED that Marshall O.

withdraw as counsel foc Plaintiff in this action.

NO. CIV 66-423 TUC WDB

appearing

Tandy may

DONE IN OPEN COURT this / day of

1986.

\\

(iv)

william B. Blaser/gm vew be 4

BLASER, KELLY & DON, P.C. .

5 7493 North Oracle Road, Suite 105 >

Ss Tucson, Ar:zona 8570 e-/* ee ess

ot oVU ‘ ke - oe

a* - 7 - _ Clii~ nh

602) 297-8386

Pima County Computer No. 4384

4

IN THE UNITED STATES DISTRICT COURT

6 FOR THE DISTRICT OF ARIZONA

‘ TED BSISHOP,

.

. o ’

2 Plaintiff, CIV 86-423 TUC WDB

. 4 ’

tic vs. MOTION TO EXTEND

attr 10 DEADLINE PREVIOUSLY ‘

3 it, OASIS OIL COMPANY OF LYBIA, SET 8Y THE COURT

EL 11 @ Delaware corporation, et al.,

2 83 a9

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; 19 Defendants.

5 ¢ +s

" 19

- COMES NOW the Plaintiff, by and through the undersigned

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» 5s attorneys, and requests this Court for an additional extension,

;

a? 15 -

4 : for time to prepare the Amended Complaint and to obtsa.a,.

5<8

— Aon 16 a =

re service on the Defendants in the above captioned case. '

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3¢ ncersigned attorneys have just been retained in this mactte:,

as. 7

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: and have agreed to assist and go forward with this case.

: 19 ‘

Plaintiffs have ust received information from the State «!

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Delaware confirming the citizenship of tne Defendant, ASiS

1

IL COMPANY OF LIBYA, INC. Plaintiffs need additional tire *?

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complete their investigation and thereafter prepare ‘

"7

Amended Complaint with the appropriate jurcisdicational 4..@;8

4 4

tions as requested by the Court in its Order of August, 1986

1966.

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See RON e OS Pe

BLASER KELLY & DON PC

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William 8. Blaserc/gr— OEPUTT co! ee

BLASER, KELLY & DON, P.C. ee

7493 North Oracle Road, Suite 105 ai’ ?

Tucson, Arizona 65704 Z

602) 297-8386 8 7 Deistudes

Pima County Computer No. 4384

IN THE ONITED STATES DISTRICT COURT

POR THE DISTRICT OF ARIZONA

TED BISHOP,

Plaintiff, CIV 66-423 TUC wos

vs.

QCROEB

OASIS OIL COMPANY OF LIBYA,

@ Delaware corporation, et al.,

Defendants.

THE COURT having been presented with a Motion to Later

the Deadline of December 31, 1986; the Court having cons. ce:ed

the same; the Court finding good cause therefore;

IT IS HEREBY ORDERED, ADJUDGED AND DECREED thet ‘te

deadline of December 31, 1986 within which to file the Ase"éed

Complaint is hereby extended to the ZOE cer of ——*

1987.

DONE IN OPEN COURT this DD day of December, 1986.

‘

The Honorable William 0. Brown:

U.S. District Judge

/

3

—_—

ia

(vi)

“~ UNI,.D STATES GOVERNMENT

, March 10, 1937 memorang

MA

> WON. WILLIAM D. BROWNING

: MINUTE ORDER

R

flerk’s Office

yu. S. Dastrict Court ’

Please enter the following order and notify counsel:

CASE NO. CIV 86-423 TUC WDB

TITLE Ted Bishop v. Oasis Oil Company

IT IS ORDERED that a hearing shall be held on MONDAY,

MARCH 30, 1987 at 9:15 a.m, at which time the plaintiff

chal] show cause why this case should not be dismissed

for failuce to serve any defendant within the extensions

gcanted by this Court to the time limit in Fed. R. Civ.

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Ms aad ons memorandum

“Sern or HON. WILLIAM D. BROWNING

(vii)

sweecr MINUTE CRDER

ro Cierk’s Off:ce

UU. $. Sastrice Court

Vertis

Please enter the following order and notify ca ffs

:15 a.m. is

VACATED.

IT IS FURTHER ORDERED that the Order to Show Cause

heaseng+e-RESET for A:45 a.m. on THURSDAY. APRIL 2, 1987.

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IN | UNITED STATES DISTRICT o Jer

FOR THE DISTRICT OF ARIZONA

4, 7

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TRNEY(s) FOR PLAINTIFF(s)

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CIVLE MINUTES - CENERAL

Court Reporter

ATTORNEY(s) FOR DEFENDANTZ@)2 ‘125

{cEDINGS: a ieee Goure

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Den thag” Oueny 1 98) al 2: TO

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--@S issued to

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6 YASIS OIL COMPANY OF LiBYA, RDER

his case «as set tor nearing on af der to 3n0w Lause wiv tre ~3** ef

snould not be disaissec for failure to serve tne defendants, and tne ours t

the request tor entry of default against tne corporate ierencant 4s 2s £525

gate.

tne piaintifs snais snow cause why C115 action snouic not ope dismissec 33

jefendant vavid Fourscres, wno Aas j0f peen served since tne case was +:.@- n

18

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3. By July }, 1967, the slaintirff snall file a oriet snowin why .7@

service 7e "18S errectec on tne corporate fdetencant is valid ov setts g +e ‘ °

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1937, or the case snajlybe

“

YJated tris / |

udgment in tnis natter no later than Sctoner Le

dismissed.

ft sune, 287.

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ILLIAi De. BROWS I's

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IN a UNITED STATES DISTRICT CORT 7

R THE DISTRICT OF ARIZON». .

i . CIVIL MINUTES - cewrRal

ivil Case No. 4A3-THC- lURB Date: 16 ‘Si

id T a,

». Opece

Deputy Clerk ourc eporter

pee FOR baa, ATTORNEY(s) FOR a 71 7

JUN 17 1992

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(xi)

rs IMITED STATES dreror~ p- Dr

in THE Veehiod SIATES DIST 400 COURT.

FOR THE DISTRICT OF AnIZ0% wn }

TED BISHOP,

“Plaintiff, ) 40. CIV 86-423-TUC-upg

v, ) DRDER

)

OASIS OIL CO. OF LIBYA, et a. ) |

)

Defendants. )

)

The complaint in this case was filed on July 25, 1983, The complaint

alleges that defendant David Fouracres is a ci izen of the United Kingdon, and

tnat Oasis Oi) Company was believed to be a Delaware Corporation, On August

21, 1986, Plaintifi's counse] advised the Court that Oasis Oil was believed to

have dissolved its Delaware Cnarter the month hefore.

There have been Numerous extensions and several nearinzs to show Cause

why the case snould Mot be dismissed for -ailure to serve the defendants in the

year since this complaint was Originally filed. On eacs Such occasion, counse]

for plaintiff indicated that Service was imminent. Service was finally made

upon the Secretary of State for Delaware, Soparently puisuant to a Delaware lay }

that authorizes the Secretary to continue as Statutory agent for Corporations |

for three years following their dissolution, a result “Mica could have obtained

as early as August 2], 1935, waen Plaintifi's counse) first advised tne Court

tnat Oasis Oil was a defunct Delavare corporation,

The last Osc W8S scnhedulec for cune +» 19L7, ane continued to June i6,

1987, At thar time, on plainciff's Wollon tre Court set aside the defaul:

4381Nst Vasis Vil for Some defect := tro service that aad deen made Dy tne

Delaware Secretary of State, and firzKer Ordered tnat clains 832inst Javii

nS

( &D

Nite

1 Fouracres would be dismisseg if he were ror served within thirty days.

2 plaintiff's counsel advises this Court tnac the defendant aay have been sey,

3 on July 25, 1987 The Court's record shows no further action by plainr

4 correc: service as to tne defunct Delaware corpora:: QM. Oismassal pursy t

5 in this matter see Edwar » Edwards, 734 G9 2.95 (9th Cir. 1985

ia ROERED that this case ts DISHISSED as to a})} defendants for