Brief in Opposition to Petition for A Writ of Certiorari — Roofire Alarm Co. v. Underwriters' Laboratories, Inc.

“IN. THE

SUPREME COURT OF THE UNITED STATES |

‘OcroBER connate 1966 —

cat et,

NO. 917 |

‘ROOFIRE ALARM COMPANY

; Petitioner,

Vs.

UNDERWRITERS’ LABORATORIES, IN C.,

Respondent.

. ON PETITION FOR WRIT OF CERTIORARI

‘ TO THE UNITED STATES COURT OF APPEALS ad

FOR THE SIXTH CIRCUIT

y

‘BRIEF FOR RESPONDENT IN OPPOSITION

Respondent, Underwriters’ Laboratories, Inc., opposing

the petition for writ of certiorari, would reepeessuny show

the Court:

OPINIONS BELOW

The District Court’s 1959 opinion is found at page 753

of 188 F. Supp., not at page 783 as stated in the Petition.

As stated in the Petition, the 1960 opinion of the.Court of

. Appeals for the Sixth Cireuit (App. B. of Petition) is re- -

ported at 284 F. 2d 360 and the 1966 Order of the Court of -

Appeals for the Sixth Cirenit denying Petitioner’s Motion

to Be Relieved of Final J — (App. C of. Petition) is

not reported.

. | | ee hee

2

JURISDICTION

The jurisdictional requisites to petition from the Court —

' of Appeals’ Order of October 11, 1966 denying Petitioner’s

Motion /to Be Relieved of Final Judgment are set forth

in the Petition. This Court lacks jurisdiction, however, of -

any attempt by. petitioner, under the guise of such a

Motion, to have this Court do indirectly what. it could not

do directly—review an.Order of the Court of Appeals

rendered in October, 1960, over six years ago, by Granting.

" the Petition ~ a Writ of Certiorari.

~ oe?

QUESTIONS PRESENTED

Petitioner’ s “Questions Presented” are unsatisfactory :

because they are (i) misleading' and (ii) irrelevant.’

taal

The “Questions Presented” really consists of one ques-

tion: Where (i) a case was decided against petitioner by the

‘ District Court in 1959 on two independent grounds and was

affirmed by the Court of Appeals in 1960, (ii) in Septem-

ber, 1966, almost~six years later, petitioner filed in the

Court af Appeals a “Motion to Be Relieved of Final Judg-

‘ ment” under Rule 60(b), Federal Rules of Civil Procedure,

which attempts to inject most belatedly a wholly irrelevant -

issue, and the Court denied that Motion on October 11,

- 1hey suggest that Respondent has recently obtained a

, tax exempt status under the Internal Revenue Code. As is

.’ clearly indicated in Appendix D to the Petition, respondent

has had such a status since 1954 and petitioner specifically

referred to that 1954 exemption in its brief to the Court. of

Appeals in. 1960. :

_ 2The apparent basis of the Petition and the When

Respondent’s tax status—was not at issue. in the —

case and i is not here. -

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1966, and (iii) petitioner’ then filed its Petition for a Writ of |

Certiorari contesting the 1966 Order on a record consist- |

ing almost solely of the published 1959 and 1960 decisions

and the self-serving assertions of petitioner in its Motion

- and brief below, should this Court now review the Court

of Appeals’ refusal to reopen its 1960 Judgment?

a STATEMENT OF THE CASE

a the 1959 District Court opinion points ont; Under-

writers’ Laboratories, Inc. is a non-profit corporation en-

gaged i in testing various materials and devices-to determine

‘if they meet safety standards established by the Labora-

tories. Those devices which meet its standards are listed

by the as eee

Petitioner 4 ‘is the licensee of a patented fire alarm device

consisting of. two carbon dioxide filled capsules enclosed

in a metal tube with crimped ends. According to the Dis-

trict Court, the capsules explode when heated, thus warning

people in the vicinity. The device was presented to the

Laboratories and tested. It was found not to meet its

standards for single station fire alarms, one requirement

of which is that “the warning sound continue for at least

three minutes at fall intensity.’

This Petition is petitioner’s third attempt to compel re-

spondent to recognize petitioner’s would-be fire alarm de-

vice. As the summary record indicates, petitioner contends

that the Laboratories, having previously tested petitioner’s

'. device and found it not to meet its standards for _

*The purpose of such a requirement. is obvious. A

. Sleeping person may fail to be aroused by one or two re-

ports or may believe he heard a backfire or other street

noise., 7

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station fire alarms, has an obligation +o test again the

device and to inform the world that the device fails to meet

Laboratories’ requirements. ;

‘The first attempt was in the case of Roofire Alarm Co. v.

Underwriters’ Laboratories, Inc. (E. D. Tenn., 1959), 188°

F. Supp. 753, aff'd, 284 F. 24-360, in which delenhaiah’s eio-

_. tion for summary judgment was upheld. No petition for

writ of certiorari was filed. The District Court there held

that the Laboratories did not have an obligation to test

- and report on: petitioner's device and that, in any event,

the requirements of the Laboratories were reasonible and

were not met by petitioner’s device. ©

_ The second attempt was poorly disguised as a restraint

of trade suit, Roofite Alarm Co. v. Royal Indemnity Co.,

“\.. 202 F. Supp. 166, aff'd; 313 F. 2d 635, cért. denied, 373 US.

=:

>

949, 83'S. Ct. 1678, 10 L. Ed. 2d 704, in which defendant's

motien for summary judgment was again upheld, the Dis-

- trict J udge commenting, “: . . plaintiff’s real purpose .

is to requiré-Underwriters’ Laboratories, Ince. to list .

(the) device in i ‘Respublications . . .” (202 F. Supp. p. 7 0).

.Ingd une, 1966, petitioier. again tried to get respondent

to retest the device and report-on it. (Petition, p. 4.) Be- |

cause the device does not meet respondent’s standards —

re (Petition, App. A, p. 10, last. paragraph), respondent, re-

lying on the holdings of the Courts inthe above two cases,

refused to go through the useless motions of testing it.

Petitioner thereupon for the third time. tried to compel re-

. spondent to retest it, by filing a ‘motion under Rule 60(b)

asking-the Court of Appeals to reconsider and reverse its

1960 holdings in the Underwriters’ case, supra. The ground ©

_ alleged is that it is inequitable for respondent to rely on

the Court opinions, ae because of a change 1 in tax

status. . : .

Respondent has been exempt from federal income taxes

- under. 26 U.S.C. 501(c)(3) as an organization “testing for

_ public safety,” since the 1954 Internal Revenue Code. The |

statement in the last paragraph of “Statement Of The -

Case” (Petition, p. 4) that (inferentially, after 1960) “tke’

_ Laboratories’ position has reversed from that of. a non-

exempt corporation to that of-a public welfare tax-exempt

corporation,” secede is untrue. —

ee | ARGUMENT |

Petitioner has not attempted to show. that its Petition —

conforms to Rule 19 of this Court because it cannot.

_ A motion based upon Rule 60(b) is addressed to the

“sound discretion of the court, lett v. W. A. Alexander ¢

Co., 302 F. 2d 321 (7th Cir. 1962), cert. denied, 371 U.S. 841 |

(1962). That discretion was exercised adversely to peti-

tioner on October 11, 1966. Since the time to petition fora _

writ of certiorari to review the 1960 judgment ran years

ago, this petition can properly request review. only of the

1966 order, and not the 1960 judgment. See Demers v.

Brown, 343 F.2d 427 (1st Cir. 1965), cert. denied, 382 U.S.

818 (1965). Indeed, this Court would not grant a petition

to review that 1960 judgment. When the time for filing a pe-

tition for writ of certiorari has expired, this Court’s juris-

diction to grant the petition ceases, Toledo Scale Co. v.

Computing Scale Co., 261 U.S. 399 (1923) ; Federal Trade

‘Commission v. Minneapolis-Honeywell Regulator Co., 344

U.S. 206 (1952). a

There is not, therefore, nor can there be, any federal’

question of any significance raised by the Petition. The

only question raised is‘ whether this Court should review

whether the Court of Appeals abused its discretion by ‘re-

fusing to reopen a. diana it had rendered six years

before.

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Under Rule 60(b) a court can alter or amend a previous

judgment if it is inequitable that the judgment have pro-

spective application. Moore’s Federal * Practice, 2d Ed.,

‘Vol. 7, pages 283, et seq., Sec. 60.26(4), states the principal

situation in which the rule has been applied is where an

injunction has been. granted and'the grounds for continuing

the injunction no longer exist or the specific rule of law

on which the injunction was based has been changed either

by a court decision or legislative action. Obviously, neither

of these situations is present. No injunction was granted

against petitioner forbidding it to apply to respondent at

any time to have the device tested.. The converse is true.

Petitioner seeks, in effect, a ‘mandatory. injunction requir-

ing respondent to test the device.

Even if a significant federal question were presented, it

would not merit review in this case. Justice Frankfurter

discussed. certiorari i in Maryland v. Baltumore Radio Show,

338 US. 912, 918 (1950) :

“Pertinent considerations of judicial policy have

come into play. A case may raise an important ques-

tion but the record may be cloudy. 4

Here the record is more than cloudy; it is ‘virtually non-

existent and consists almost es of petitioner’s un-

supported assertions.

Petitioner has attempted to challenge the prior judgments

by suggesting that respondent’s tax stétus creates some

sort of judicial question. That status remains the same as

_ it has been since 1954 and as petitioner knew it to be before

all of its litigations against the Laboratories.

Moreover, despite petitioner’s preoccupation with tax

status, this is not a tax case. The. 1954 Internal Revenue

Code granted petitioner no rights against respondent nor

— . ° Pie ‘ , ; . cannes

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did it require respondent to test and list a device which did

not meet its reasonable requirements.

Petitioner has more than had its day in court. As stated

by this Court in Bullock v. South Carolina, 365 U.S. 292.»

(1961) : “the ae of circumstances as the record makes |

- them manifest... (does) not warrant bringing the case

- _ here...” — , ee |

| Respondent respectfully submits that> the Petition is

without any. semblance of merit and should be denied. -

Respectfully submitted,

Jere T. Treron, |

Chattanooga, Tennessee,

Epwarp H. Hickey, —

Chicago, Illinois,

Attorneys for Respondent.

. f Counsel: 4

‘ ’ Minter, Martin, Hircuine, Tipton & Lenrnan, faa

1033 Volunteer State Life Building, : '

Chattanooga, Tennessee,

Beuu, Boyp, Luoyp, Happap & Burns, —

135 South La Salle Street,

Chicago, Illinois.