# Brief for The Respondents in Opposition — Schy v. Susquehanna Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0057%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for The Respondents in Opposition - **Published:** January 1, 1970 - **Citation:** 400 U.S. 826 ## Text "LIBRARY SUPREME COURT, u. S. . cout US. op IN THE: JUL 24 1970 abt SEAVER, CLERK ——— os | Supreme Court of the ited sSeeab | ae | _ OCTOBER TERM, 1970 s _No. 320 . Mavnice H. Sony, v. ' (ae Susquenanna Corporation, a Delaware corporation, . . SamvueL M, Fercuson, M. M; Harpy, H. F. Koruozz, J. Earte May, Huen C. MicHELs,. AKSEL Nretson,. D. W. Rerves, R. C. ScHENK and N. F. Tispazg, JR., Respondents, é \ ° . age ; = *ON PETITION FOR. A WRIT OF CERTIORARI 0 THE » UNITED STATES. ‘COURT OF APPEALS FOR THE SEVENTH CIRCUIT Vy ; : . ; : " tae ees ; Me . os : = BRIEF FOR RESPONDENTS IN OPPOSITION — : Chacala S. Ruvxn ; Courts OuLAHAN ALEXANDER YOUNGER Rayne & Rayve 400 Hill Building « Washington, D. C. 20006 _ Attorneys for Respondents . ¢ + pee, ae ' rae Si Ma a ~ ° . : 2 a8 Petitioner,.. - —— ‘ oy eee east sine Statement of the Case ....... prea ieee eiaas mo ‘Questions Presented ‘ ‘ ewer re eevee Cee 7 eis. ae ARGUMENT; ¥ Decision of this Court in Mills v. Elec- 1c Auto- Lite ( J0., 996 US. 375, Clearly Does | Not. Apply ‘1 ‘o The Factual SituationHere .. 5 ; IL There fs No Conflict Between the Holding Below and the Law: Prevailing i in. the Second Circuit on the Class Action: ‘Question ..:.... & . III. There ls No Occasion Kor This Court To"Re- > ’ view The Procedure’ Followed By The Dis- trict Court In Dismissing. Petitioner’s Coni- NN Soon od cas Fre ter ere ieee eee COMOLAMION oe noe 5a kek at ee ees EE I gh oe a “a? : “ ‘ . a ‘ | CITATIONS : ; Cases: . ae) a Anderson National Bank vy. Luckett, 321. U.S, 233 ~ 14 Carrall v; American Federation of ‘Musicians, 372 . F, 2d 155 (2d Cir. 1967), ¥ vacated, 391 U.S.99 ... ° WH . ££ onley v. Gibson, 355 U.S. 41 2.0.0... Te ce Pe ; Ls 14 Crawford v. Yoaate, Ine. 40-F.R.D. 381 (S. D.N See | ETT ee rT ete LE PL > einity tae eee ag ~- it - Dasho et al. v. PvaeB hanna Corp., igi Fed. See: . *. + +L, Rep. a ies 2,575 (N:D. Ill. 1970): 2.2.0... eeogt 2 Edelman v\ California, 344 U.S. er rr! ey | Eisen v. Carlisle & Jacqueline, 391. F. 2d 555. (2a © . Oe. POO oa evece ck ccex ss Poet eae ea re 8.9510, 11 Foman v. Davis, 371 U.S. 178 2.2.0... ayer me 14 | a " y . ———— so “e it’ . PAGE ' Georgia’ Southern & ‘Florida Railway Co. a ‘*. Atlantic Coast Line Railway Co., 373 F. 2d 493 . (OGRE CONG; RIED hex 55.58 ca aes ee ae 15. - Giordano vy. Radio Corporation af America, 183 F. ‘Od 558 (3rd Cir. 1950) ........... rey Pee we -11 Hannah v. Larche, 363 U.S. 420 2.0... nee Rea 14 _- Hansberry v. Lee, 311 U:S." Nas + : ° . : . - TH. There Is No Chesicaiaee For This Court To Review — The Procedure Followed By The District’ Court In Dismissing Petitioner's ne. “The lack of merit tin Petitionic rs: position i is nowhere more clearly demonstrated than in his le nethy argument that he’ * was denied due process of law by, the trial Court's granting of summary judgment in this case. Petitioner’s argument, essentially ‘an effort té have this Ceurt’ second guess every action of the District Céurt, is not supported by authority and raises issues which have already been: considered by another appellate tribungl. Noe of Petitioner’s numerous contentions i is. of suflicient magnitude to justify review here. Prine decisions of this Court cited by Petitioner are plainly distinguishable, Thus, the language from Conley \ ‘Gilson, 355 US. 41, 48 (Petition, p. 16) concerned an argu- ment by respondents there that. the Complaint therein, filed, by Negro empleyees contending their union was not repre- senting them fairly, ‘‘failed to set-forth speéifie facts to support its general allegations of discrimination, and that oot , is. its dismissal is therefore proper.’? 355 U.S.. at. 47. Re- id.not seek dismissal because of Pétitioner was disqualified as a ice represcitatl eC ac had no legally cognizable claim. : ; abet Similarly, Petitioner ‘wholly misconstrues this gong decision in Surow if v. Hilton Hotel Corp., 383 os: 363, | St2 Petitioner, himself an. attorpey, Was represented in botii courts below by a nine- member law firm, yet he seeks by inference to put hiniself. in the same category as-the ‘uns. ‘sophisti rated litigant” ‘so summarily dealt with by the;trial Court in Surowite. There it was apparent that, as the Court of Appeals had note “d, ‘*many of the material allegations ,of the complaint. are trae and cannot be refuted’, 342 F. 2d at 607, yet the District Court dismissed ‘without requiring any , response from Defendants. -In language oe by ;Peti- tioner, this Court held: | ¥ ne \ 1 “We cannot eonstrut Rule 23.0r ‘any ior one of: the Federal Rules as compelling courts te summarily dismiss, without any answer or argue nt at all, cases like this whose grave charges of fraud are shown on the reaord to be based‘on reasonable ie crow ing =_—-* Vout of careful investig atian. oe 383 US. i t 373.-(En- “* . phasis added). Here, an Answer was filed. A hearing was held. Respond- ents’ Motion, together w ith Exhibits,was filed on July 17,. 1968, and oral argument on the Motion was held some three months later, on October 15, 1968—adequate time. for Peti- tioner and his counsel to prepare. Here too, dnlike ‘Surow itz, Petitioner pr eviously had filed a Motion for Summary Judgment, which he subsequently withdrew buy) . ‘ x later renewed. And, -unlike Surowitz, the Complaint here ean Aardly be said to be ‘based on reasonable beliefs growing out of careful investigation.”’ — as BN ys ° Petifioner’s citation of Foman vy, Davis; 371 U.S. 178, . se . to support his contention that the District Court. wrongly. eg te er te ek -@® + z ‘o “ ‘ /g denied him leave to amend, is also wide of the mark. Homan involved a situation worlds apart from-that here, anu held that a District Court should have granted leave where the. . . i 7 . proposed amended complaint would have done no more than state an alternative theory. 371 U.S. at 182. But here. the’ proposed new pleading was identical in. all material respects with the origihal pleading except. that it included . *a claim for money damages. Leave to amend’ would thus have beemfutile. = : is \ S: : : ° oS : Oo 3 Couley, Surowitz and Foman, like the other decisions”, relied on by Petitioner, a thus factually distinguishable and furnish-no authority for granting certiorari. ; ¢ : “Apart fromthe fact the—Petitioner—has. not cited any ~ authority in point, the Court’should deny certiorari for the additional reason that the arguments raised by Petitioner” ‘about the District Court’s dismissal have been fully. con- ‘sidered “by the Court of Appeals and found to be either inacefirate or Without merit. Thus, Petitioner, intimates that his counsel wag taken by surprise by Respondent’s 5 Anderson National Bonk vo Luckett, 321 U.S. 233, Schroeder V, City of New York, 371 U.S. 208, and Mullane vy. Central Hanover Rank & Trust Co., 339 U.S. 306,.cited in the Petition (p: 18), all invelved the question whether statutory notice provisions comport . with due process requirements. Petitioner, however, does not challenge the notice provisions of the Federal Rules of Civil Pro- cerure. Petitioner's reliagce on Hanngh v. Larche,, 363 U.S. 420, 442 (Petition, p. 18). is mystifying, since that°case concerns the due process rights to be accorded by investigative agencies, an issue wholly irrelevant here. a tad tc 4 va vo * | . : ees | 19 rea SA ’ moving to dismiss for failuregp state a ‘claim. Responder s’ Motion to Dismiss had been grounded on Petitioner’s failur e to exhaust his intr acorporate remedies. But, when: Respond-- - ents raised the Rule 12(b)(6)* defense at the oral argu. | ment on the motion, Petitioner’s counsel, rather than ob- jecting oF indicating he was wiprepared, craked strenuously and at length that Respondents were-wrong in asserting that _there was no damage to the corporation. Petitioner cannot now contend that he was taken by surprise. As the Coal of ‘Appeals held, ‘*. . the plaintiff fully argued this ground at the hearing ane cannot complain a that the district scourt considered it. ° [citing vases ].’ 419 F. 2d at 1115. Moreover, the defense of fuilgre to state a claim had been raised in the Answ er and the Answer was before the Court. Similarly, Petitioner’ s objection to Exhibits aceomimpany- ing Respondents’ motion to disniiss comes late’in the day. As the Court of Appeals held, “The plaintiff did not com- plain of “untinelinessin the trial court, although he did urge the court not to’ consider the exhibits as evidence, *Since- the plaintiff did not complain. about the late filing: in the - trial court, he cannot do so on appeal.’ "419 Fi XV at 1116. Georgia Southern and Florida Railw ay, Co. v. Atlantic Coast Line Railway Co.,'373 F. 2d 493 (5th Cir. 1967) does not, ‘support. petitioner’s position. There, the losing party had no notice before a hearing on a motion For. prehminary im- = * junction that ‘‘a final ‘judgment would result from it.” 373 F. 2d at 497... ae Petitioner had known for three sd oe . ® This Rule provides: “Every defense, in law or fact, to a claim for saiet a in any pleading, ‘whether a claim, counterclaim, cross-claim, or third- party claim, shall be asserted in ‘the responsive pleading thereto. except that the following defetises at the. option of the pheader may .be made lw motion: . . (6) failure to’ state a claim » ° . upon which relief can be granted . a o ° - months that Respondents would seek disniissal of his Com- - / plaint. Petitioner-came to the hearing prepared to argue ; oD a : eden yee ° . °,¢ . » ® ; ‘ against the disjuissal. Petitioner also knew from Respond- . ents’ Answer that they relied on the Rfile 12(b) (6) defense. “ “(In challenging as he does tl = Pa] : : conchision of the Court of ..- Appeals that ‘the procedy followed by the distriet court in granting summary judgment did not involve reversible error.” 419 Fl 2d at 1146, Petitiouer appears to be asking this Court to assume the role of a trial Court and-hear once’ again his objections to, Respondents’ Motion to Dismiss. ‘That ts not this Court’s function. Hence it should deny. . certiorari on this’as Well as on the other gretiids stated in this Brief. , ie *~ €ONCLUSION Weare. The Petition for Certiorari raises no issué of sufficient - magnitude to justify consideration by this Court, points to no conflict of decisions, and shows no error by the Courts helow. It is therefore respectfully. urged that the Petition. . should be denied. ° Aim ~ ° ; ; . 4 ” ‘ * — Crartes S. Ruyne Courts OULAHAN - : ALEXANDER YOUNGER Stead 8 : ‘- Ruyne & RuyNne i eintg S Saee 400 Hill Building Pek OMNES a Ss Washington, D.'C. 20006 ‘ _ * Attorneys for: Respondénts July 24, 1970. | ae --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0057%3A3. Public record. Not legal advice.