# Brief in Opposition to Petition for a Writ of Certiorari — International Railways of Central America v. United Fruit Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Brief in Opposition to Petition for a Writ of Certiorari
- **Published:** January 1, 1967
- **Citation:** 387 U.S. 921

## Text

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INTERNATIONAL Raltways oF CENTRAL as es |
. , 3 Respondent.

a*

BRIEF IN. OPPOSITION TO CROSS-PETITION FOR
WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT

Aaron LeEwIrtss,
‘Attorney for Respondent,
135 East 42nd Street,
New York, New York 10017.

YUkon 6-4080

’

Of Counsel:

M. Vicror LEvENTRITT, .
Sipney BeEnver, |
ApraHAM K. WEBER. ~ a

RS rer ee ee
. " . e PEPE ION SANT RE ITE PEP RAS POO

i tease TABLE OF CONTENTS

4

‘Freeman y. Bee Machine Co., 319. U.S. 448 . ieey cas ae

ET a ee a

ap ree ‘Tac v. Providence Fruit & Produce Blag., 194
F. 2d 484 (C, A.1) saa UP er epecgegeescecseeees

Glenis v. Connell, 266 F. 2d 149 (C. A. 9) ees oad

- Glus Vv. Brooklyn Eastern District Terminal, 359 U. Ss.
Mn Ghrsacateuacs PPS IS es a ROU DOTS

Griffin v. Griffin, 397 U.S, 220... Skee bart weveees
| Hasset v. Rathbone, a8 App. Div. 229 (ara Dept.)

Hazel. hens Ine. v. ‘Pictinien Inc., 314 F. 2d 399
De We IE Shires bees vei seus caus siweiene

_ Henis v. Compania Agricola, 210 F. 2d 950 (C. A. 3),
aff’ g on one ground. only 116 F. bese 223 kak

Heiser v. Woodruff, 327 U. 8. 726 Lae ONE

” $9-m et

‘Ind. Com. of Wis. v. MeCartin, 330 U. S. 622 ........

"Kane v. oe 8 Cal. eee ay cao,
‘Klaxon Co. v. Stentor Electric Mig. Co., 313 U. S. 487

Klein v. Amer. Ewageie Works, 206 F. Supp. 924.(D.
_ Del.), rev’d on another ground, we. F. 2d 787
CR SF ce EAS: ck ah deeees s

Kleinman v. Betty Dain Creations, 189 F. od 546
(C. A. 2, 1951) el bear ra SOP waesceweeeeeeseeen

‘Looney Vv. — Texas R.R., 247 U. 8. 214 wore ne

fr @o@ & fF» ©

or

TABLE OF CONTENTS p ii

“PAGE »

Lyons 1 v. Wistiaghouse 222 F. 2d 164 (C. A. 2). ay 4, 6,10

&. ance dda,

' Magnolia Petroleum \ v: Hunt, 320 U. s. eee et
: 3 Maternally Tomi: Ine. v. Your Maternity Shop, Ine,
¢ 234 F. 2d 538 (C. A. 2, | ee ae 8
Newport News Shipbuilding & Drydock CO Meccot: *
. O'Haarne, 192 F. 2d 968 (C, A. 4) ..... atin ance 3,4
Okiehome Pecking Co. v. Oklahoma G. & E. Co., 309 : Se
U. 8.4... Cu btw eRe aesPeaees ip 644 ceawanes ee 6.
Pepper v. Litton, 308 U.S. 295 .........cccc pe cence 3

| Red Rock Cola Co. v. Red Rock Bottlers, Inc., 195

F. 24 406 (C. A.5) .......00. yc comPnee iui 4
Ripley v. International Railways of Central America

-and United Fruit Company, 8 A. D. 2d 310, aff’d |

8 N. Y. 2d 430, rearg. den. 9 N. Y. 2d 758 . 3, passim

Ross v. T. C. Bateson Countenetion Co., 270 F. 2d. 796
: (Co A. 5) eee cece eee e eee e eee eens AP ack 9

Schuylkill Fuel v. ‘Wiebers Realty Corp. “ 250 N. Y. 304 9

Southern Construction Co. v. U. 8., 371 U. 8. 57 .... 4,5
\ . St. John v. Wisconsin Emp. Rel. Bd, 340.8. 411... 6

| Straus v. American Publishers Assn., 201 F, 306 _-
yaa ae aeRO EE NS te 10

ona A N. Y. Life mee: Co., 314 U. i BE cw ive , 5

Le lear hapsdanas ECE Nae e

iv Pes TABLE OF CONTENTS

C PAGE .

Viewhiie-Casetinn Chemical Co. v. Kirven, 215 U. 8S.

sl Oe tees Teese Lin soa ee bae Mod cy.
Western Boat Bldg. Co. v. saary, 198 F. 2d «0 (Cc. Lk

_ Bae erp re cee ipetewkene es 3
Willianis” Vv — 330 F, 2d 745 (C. A. 3) aes a ikaie

sheaeie’ v. Columbia Gas & Elec. ns " 186 PF. 2d
464 and note (C. A. 3, 1950), cert. denied 341 U. S. °
I EES eee 10

Wright v. Georgia R. & Bkg. Co., 216 U. S. 420 ...... 6
' Zalkind v. Scheinman, 139.. F. 2d 895 (C. A. 2, 1943) 7,8

OTHER AUTHORITIES

1B Moore, Federal Practice, § 0. ines “ae

2 Freeman on 5 ea (5th ed.), § 704, pp. 1485,
1485.6, 1487-8, § 704, p. 491. 2.......... PARR EY 6
Restatement of Judgments |
o'er pee ee ee 8
MR TI ois vivo snes Say Di wueerieeees
§ 62, p. 255, com. k ........6.000. ts ales we 5
i SARI os, ie ubidu a oni eewwe'es es 10
p. ake unk Cha nis Cebibnelaseudducusedes 9

te THE :

apeeme Gout of the ited aes

OCTOBER TERM 1966 _—

No. 1320.

- ‘ e ys
. ve

Unrrep Furr Company, | .
i aise Petitioner,
against |

a Ranways oF CENTRAL AMERICA, » :
3 asc sae

7%
bs

BRIEF IN OPPOSITION TO CROSS-PETITION FOR
WRIT OF CERTIORARI TO THE UNITED STATES |
COURT OF APPEALS FOR THE SECOND CIRCUIT

We have filed a separate brief, in behalf of plaintiff,
International Railways of Central America (IRCA), in

see reply to. the opposition of defendant, United Fruit Com-

pany (United) to IRCA’s s Petition, this Term, No. 1217.

We submit herewith IRCA’s opposition to United’s
Cross-Petition on the ground ‘that it is witheut substance,

intended only as a red herring across the trail ,

Our case is even stronger than Lyons, for there the state

‘- court took (limited) jurisdiction over the federal claini, .

whereys i in Ripley the state court declined all jurisdiction
over'thaantitrust claims. As Judge Clark’ (of the Second
Circuit) held, in an antitrust case, in overruling a plea
_ | of res judicata based on a-state court judgment TNS
the same seleesesgnach

f° 8 course Ve judgment ‘can. be conclusive as to —

: issues denied adjudication in the action in which it.

was rendered.’’ Gamco, Inc. v. Providence Fruit gi.

Fas ues Bldg., 194 Fogd 484, 489.(C. A. 1).

‘Collie: in. giving the’ federal ion clea juris-
(ae over the antitrust claims, did not intend to take
away from state courts their common law.and equi ity juris-
diction; as, for. example, over the claims for breach of
fiduciary obligation involved in Ripley, even where those

federal and’ state claims might involve the same subject ite

- matter. “Red Rock Cola Co, v. Red Rock Bottlers, Inc.,<
195 F. 2d 406 (C: A. 5). Congress has thus ‘effected the

‘‘fragmentation of these claims’’, Southern Construction,

} * Of course, the federal*court will accept specific material find-

ings made in the state case, Heiser v. Woodruff, 327 U. S. 726;
e- yons v. Westinghouse, 222 F. 2d 184, 196 Ne A. 2); Connelly
ve. ”Ballewill, mes . 49, 56, 60-62 (N. D. ; Oh.) affd. on op.
below, 270 F. 24 85 CA. 6). ;

0

;

Co. v. U. S., 371 U. g, 57, 60, i@any fragmentation there
be, and where that is so, there is no room for holding
that they are parts of a single cause of action for pur-
poses of the no-splitting rule. Cf. Southern Construction
~ Co., supra. Not only is United’s contention in defiance .
of settled law under the authorities set forth above ; if
sustained, its consequences would indeed be pernicious.

- On the one hand, collusive or ill-advised actions by liti-
gants in state courts on state claims would have the effect
of frustrating or frittering away fundamental federal poli-
cies favoring exclusive pureeeon 3 in the federal courts of
antitrust rights..

On ‘the other hand, insofar as the ruling contended for
would compel many litigants to come to federal courts first
with state claims, to avoid any risk of losing federal rights
that might be lurking somewhere in the facts, it would be:
a grab for federal jurisdiction: over state claims, which is
against our whole tradition.*

2. a New York has no jurisdiction over federal anti-
trust claims, IRCA cannot, consistently with due process, :
be denied an opportunity to litigate those claims in an ap-
propriate tribunal. Griffin v. Griffin, 327 U. S. 220. See
Magnolia Petroleum.v. Hunt, 320 U. S. 430, 444: ‘‘The
fact that a suitor has been denied a remedy by one state
because it does not afford a remedy for the particular
_ wrong alleged, may not bar recovery in another state which
does provide a remedy.’’ And see Williams v. Murdoch,
330 F. 2d 745, 752 (C. A. 3): ‘*there can be no res judi-
cata’’ where plaintiff ‘‘did not have an opportunity to be

* See e.g. DiGiovanni v. Camden Fire Insurance Assn., 296
U. S. &, 73: ‘Klaxon Co. v. Stentor Electric Mfg. Co:, 313 U. S.

487, 496 ; Looney v.- Eastern Texas R.R., 247 U. S. 214, 221;

Toucey v. N.Y. Life Insur. Co., 314 U. Ss. 118, 141. .

6

‘heard.’ Accord: Fayerweather v. Ritch, 195 U. 8. 276,
299," | ; <rye

3. A judgment not res judicata by the law of the state
of rendition is not res judicata in the federal court. Wright

v. Georgia R. & Bkg. Co., 216.U. S. 420, 429: ‘*This court,
as is well-settled, accords to 4 judgment of a state only
that effect given to it by the court of the state in which it
was rendered [citations].’’** By the local law of New York,
since the antitruSt claims were excluded by the Ripley
court as not within the issue (App. 20a), they are open for

.. determination in another action, even assuming arguendo
. that both actions arise out of the same subject-matter. .
Hasset v. Rathbone, 204 App. Div. 229, 231 (3d Dept.); .

2 Freeman on Judgments (5th ed.) § 704, pp. 1485, 1485-6,
‘1487-8; § 705, p. 1491.*** Indeed, United’s success in ex?

* See also L. Hand, J., in Lyons, supra, 222 F..2d, at 189:
“We are in accord with what Judge Goodrich says about the

_ doctrine of res judicata in general, . . . : ‘Such a rule of

. public policy must be watched in its application lest a blind
adherence to it tend to defeat the even firmer established policy
of’ giving every litigant a full’'and fair day in court.’”

** Accord: Oklahoma Packing Co. v. Oklahoma G. & E. Co.,
309 U..S. 4, 8; St. John v. Wisconsin Emp. Rel. Bd., 340.U. S.
411, 414; cf. Ind. Com. of Wis. v. McCartin, 330 U. S. 622; Chi.,
Rock Island & Pac. Ry. v. Schendel, 270 U. S. 611, 622 [No. 684].

*** This is particularly ‘so where, as here, the state court’s ground -
for holding those claims not within the issue was lack of jurisdic-
tion over the subject matter (a defect not correctible by the state
courts); see 1B Moore, Federal Practice, §0.405[5]. . Thus, the’
Restatement of Judgment observes that “where a plaintiff brings an
action in a State in which the courts have jurisdiction only_wit

-. reference to one portion of his cause of action, he is not barred
. from maintaining an action in a proper court for the other por-
tion.” Sec. 62, come k, p. 255. For example, judgment in rem
against defendant’s property in New York does not preclude a per-
sonal action against defendant, in California, for the balance of the
debt.. Kane v. Cook, 8 Cal. 449, 455 (Field, J.). .

In. Dana v. Morgan, 232 Fed. 85, 89 (C. A..2), the Court held
that a judgment in a derivative stockholder action precluded subse-
quent suit by the corporation only as to matters which “might have

_, been presented to the court and passed upon therein.”

%

»’

r5

’ eluding antitrust violations from the Ripley ‘ease, as not

there in issue .(I-105a; I-102a-105a), estops it from claiming.
that Ripley is res judicata of those claims here. Virginia-’
Carolina Chemical Co. v. Kirven; 215 U. S. 252, 259. © :

_4, United is estopped from pleading Ripley as res judi-
cata of federal claims because United’s wrongful domina-
tion over IRCA (see IRCA’s Petition, this Term; No. 1217,
p. 21) prevented IRCA from selecting an appropriate
forum in which to prosecute its antitrust claims against
United. Glus v. Brooklyn Eastern District Formenat, 359

' US. 2381, 232-3:

the maxim that jo man may take advantage of his own
‘wrong. Deeply rooted in our jurisprudence this prin-
ciple has been applied in many diverse classes of cases
by both law and equity courts.’’

‘“To decide os case we. need look no further than

- This is particularly So, since in 1949 when certain stock-
holders commenced Ripley, they were not on notice of the
antitrust violations. By the time they became aware of them

' through pre-trial discovery in the state court proceeding,

it was too late for the stockholders to start over again in ~
federal court (a) for financial reasons, (b) because the

‘New York statute of limitations had run, in the meanwhile,

on part of the state claims and (c) because, at least then,
the Court of Appeals for the Second Circuit was not per-
mitting pendent jurisdiction over such state claims, as
evidence was needed to sustain them ‘‘not relevant to and
needed to support their first (federal) claim’’, Zalkind v.
Scheinman, 139 F. 2d 895, 899 (C. A. 2, 1943); Kleinman
v. Betty Dain Creations, 189 F. 2d 546 4 A. 2, 1951).*

*TIn.1952, the Second Circuit relaxed the Zalkind test of pend-

ent jurisdiction involved in patent, copyright and trademark claims

(Footnote continued on following page)

8

5. The transactions here are also different from those
adjudicated in Ripley.

‘In Ripley the only transactions adjudicated on the merits —
were payments to IRCA for shipments actually made over
IRCA by United and by coffee export shippers.

‘The ‘present suit deals also wn the following entirely

| - different transactions:

(a). shipments not made over IRCA by independents
because suppressed by United ; .

~ (b) shipments not made over TRCA by United he
" cause suppressed by United;

" (e) shipments over IRCA by” independent import
shippers; ;* and

(d). acquisitions of IRCA stock ee

ay (Footnote continued from preceding page)

», within 28 U.S.C.A. § 1338(b), but as late as 1963 had still left
- open whether the Zalkind test would. be made less rigorous for other
claims. Maternally Yours, Inc. v. Your Maternity Shop, Inc., 234
F. 2d 538, 544 (C. A. 2, 1956) ; Hazel Bishop, Inc. v. Perfemme,
Inc., 314 F. 2d 399, 403 (C. A. 2, 1963).
Many facts were required to support the state, but not the
federal, claims, see 8 A. D. 2d at 319-328; 8 N.Y. 2d at 437-455.
Diversity jurisdiction was not available, as IRCA and United
were both New Jersey domiciliaries, as was.Liddell; the most im-,
portant, plaintiff: stockholder, holding the oldest stock. Waterman,
an old stockholder, intervened i in 1952 but it would have been im-
prudent to drop Liddell as there was no assurance the latecomer
would remain loyal,‘retaining his stock to the end of the litigation.

* It may be noted that Ripley- dismissed, “without prejudice”, the .
claim as to independent import shipments; so that claim is for this
additional reason not foreclosed ; see Restatement of aa ie

§ 53, page 206. o

** For a ‘detailed contrast between the claims adjudicated by
Ripley and those in the present c case, see I-106a-114a.

9
Different’ material transactions spell different claims or
- gauses of action for purposes of the no-splitting rule 2 PP.
aati

Schuylkill Fuel Corp. v. Nieberg Realty rte 950.
N. Y. 304, 309: ‘‘The cause of action being different,
i.e. for'coal sold at other times and in renee to other
orders.’’*

-6. Henis v. Compania Agricola, 210 F. 2d 950 io. A. 3),
aff’g 116 F. Supp. 223, on one ground only—although re-
ferred to in the Cross-Petition’s statement of the case (p. 8)
—has nothing to do with any issue in this case. The Court
- of Appeals there confined its decision to one matter; namely,
that the two plaintiff stockholders of IRCA in that case, who
had bought their stock i 1951, had shown no legal capacity
under Federal Rule of Civil Procedure (now) 23.1 to bring
‘any action in behalf-of IRCA to compel the restoration of
stock and notes sold by IRCA in 1936. The Court, accord-
~ ingly,_refused to consider the applicability of the Delaware
statute of limitations, the other ground upon which the: Dis-
trict Court had based its decision. The Court of Appeals”
holding, pertaining to the incapacity of stockholders, adjudi-
eated no IRCA cause of action. Its express refusal to pass
on the Delaware statute of limitations issue deprived the
District Court holding thereon of any. res judicata effect
whatsoever.. Restatement, Judgments, page 308.**

“Moreover, Judge Leahy in: the District Court was ‘pass-
' ing on a Delaware statute of limitations applicable to a
State cause of action and this i in no event could ber i a fed- —

* Accord: ‘Ross v. T. C. Bateson eet ae rom 270 F. 2d
796, 799, 800 (C. A. 5); Glaser v. Connell, 266 F. 2d 149, 153,
(C. A. 9) ; Restatement, Judgments, § 62, pages 247-8.

** “Where the trial court bases the judgment upon two alterna-
tive grounds, and an appellate court affirms the judgment solely on
one of the grounds, the judgment is not conclusive i ina subsequent
action in which the other ground is in issue.” —

10 :
eral cause of action, with a federal limitations statute,
brought i in’ any District. ? co

B. None of the cases cited in the Cross-Petition ¢10-11).

- supports United’s position. In each of those cases decided

by the Supreme Court, and by the Third, Fifth, Seventh,

and Eighth Circuits, the plaintiff had a full opportunity to

/ present all his grounds to the first court; in addition, in
each, the same transaction was presented in both actions.

Contrary to United’s statement in the Cross-Petition
(11), the decision of the Court of Appeals below on United’s
splitting point does not depart from the rationale of the
courts of appeal in the four cited circuits. Thus, Engle-
hardt, the case cited from the 8th Circuit, expressly distin-
guished Lyons on the ground that in Engelhardt, unlike
Lyons, both cases had been in the federal court. 327 F. 2d,.
at 35. And in Williamson, the case cited from the 3rd Cir-
cuit, where, also, both actions—for violation of the antitrust
laws—were. in the federal court, Judge Goodrich pointed
out, 186 F. 2d, at 469, that the ‘‘force of the rule is ance
operative’’, that

“Tf the theory in the second suit was unavailable
under the writ used in the first suit, the plaintiff had
no opportunity to litigate it there and so a. an was
not barted by res judicata. res:

* Event if Straus had not been ‘overruled iy € sccipschad
the overruling confirmed below. (App. 21a)—it would not
‘support United’s position: in-Straus (see 201 Fed., at 310), .
unlike the case at bar, the specific issue of violation of the
federal antitrust laws,.which was sought to be litigated in
the federal court, had already been litigated and determined
on the merits against the plaintiff, in the state court.

*

‘ * Restatement of Judgments, p pp. 194-195; Ripley, 8 A. D. 2d
310, 324; Williamson v. Columbia Gas & Electricity Corp., 186
F. 2d 464, 466 and note (C. A. ve

ce | |
‘CONCLUSION ~

United’s Cross-Petition—without substance and in-
tended only as a red herring across the trail of the.
‘Petition in No. 1217 filed by IRCA—should be denied.

Dated: New York, New York, May 9th, 1967.
| Respectfully submitted, |

Aaron LEwITTEs,
Attorney for Respondent,
International Railways of
Central America,
Ne 135 East 42nd Street,
New York, N. Y. 10017.

- YUkon 6-4080 :
Of Coynsel:

M. Victor LEvENTRITT,
SipNeEy BENDER,
ABRAHAM K,. WEBER.

a)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0467%3A5. Public record. Not legal advice.