# Brief for the Respondent in Opposition — Transit Casualty Co. v. Security Trust Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_1496%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the Respondent in Opposition - **Published:** January 1, 1971 - **Citation:** 404 U.S. 883 ## Text in the Supreme Court of the — — EAnited States OCTOBER TERM, 1971 NO. @1-228 TRANSIT CASUALTY iias condaertaet ET AL., _ Petitioners, Us. SECURITY TRUST COMPANY, ET AL., ) “ Respondents. - BRIEF OF RESPONDENT SECURITY TRUST’ COMPANY IN OPPOSITION TO PETITION FOR A WRIT OF CERTIORARI TO THE - UNITED STATES COURT OF APPEALS ' |. FOR THE FIFTH CIRCUIT JAMES A. DIXON 700 Roberts Building. - Miami, Florida .33180° "and : SAM DANIELS - 1414 duPont Building Miami, Florida 33131 - Attorneys for Respondent Security Trust Company MIAMI REVIEW — 371-4853 — 377-3721 he INDEX | Page OPNUONS BELOW 2: ee SURMINCTICR 20 ee QUESTION PRESENTED... | = ee FEDERAL RULE OF CIVIL PROCEDURE INVOLVED occcsooc ovens eae _ STATEMENT OF..THE CASE .. | 5-18 Events Leading Up To Order of September 66, MN ee District .Court Proceeding After Denial Of Interlocutory Appellate Review ........002.0.. ber 9 The Dismissal With et For Failure To Obey The Court’s Order .. saRtastenlocctae cates ane Court of Appeals’ Ruling That Dismissal Should Be Without Prejudice 2... yen _ 11-12 _ Entry of Order On. Mandate And Denial Of Certiorari .............. eeehuntar afeel am ieee 12 - Rule 60 Pectuctthis In District Court ............. . 17 ' Opinion of Court of Appeals Below ........ 17-18 . REASONS FOR DENYING THE ‘WRIT ....220:.° 19-20. CONCLUSION fo = CERTIFICATE OF SERVICE 22 INDEX OF CASES CITED Case | Page Corn v. Guam Coral Company, | (Sth Cir.3963), 318 F.2d 622 =. 19 Federal Trade Commission v. Minneapolis- ‘Honeywell R. Co., 1 8 SRE eee Pr indo na Dea 19 _ Goldfine v. United States, ete ; (ist Cir.3964).326 I'.20 456 «2s. 20 - McDowell v. Celebrezze, | ' (5th Cir.1962), 310 F.2d 48 ....... ret 20 -Nyssonen vy. Bendix Corporation, (Ist Cir.1966), 356 F.2d 193, 385 U.S. 846 0. 19 ‘ OTHER AUTHORITIES CITED F.R.C.P., Rule 60(b) ne nnnrnnsninn By By 4-5, 18, 15, 19, 20 7 MOORE’S FEDERAL PRACTICE, § 60,223) Pan 20 7 MOORE’S FEDERAL PRACTICE, § 60.28(2) .... a 28 U.S.C., § 1254(1) iene Pei aOR LEE 2 in the | Supreme Court of the — Guited States - OCTOBER TERM, 1971 NO. @1-22 TRANSIT CASUALTY COMPANY, ET AL., Petitioners, vs SECURITY TRUST COMPANY, ET AL., / Respondents. "BRIEF OF RESPONDENT SECURITY TRUST . COMPANY IN OPPOSITION TO PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT | - _ Petitioners pray that a writ of certiorari issue to. review the judgment below of the United States Court of Appeals for the Fifth Circuit. PR RR RAMS bo net iby Reet BLS 4 OPINIONS BELOW The Court of Appeals’ opinion here sought to be reviewed is reported at 441 F.2d 788. Its subsequent Order on Petition: for Rehearing and ‘Petition for Re- hearing En Banc is unreported but reproduced as Ap- pendix C to the petition for a writ of certiorari. The : order of the United States District Court for the South- ern District of: Florida which was affirmed below ‘is ‘unreported but reproduced as: Appendix A to the peti- tion for a writ of certiorari. The foregoing opinions were rendered in the present Rule 60(b) proceedings. - Before the Rule 60(b) proceedings were commenced, there were prior opinions rgndered and reported in the. causes at 372 F.2d 441; 396, F.2d 803; and 399 F.2d 665, . cert. den. 393 U.S. 1024. paar | . : JURISDICTION . Jurisdiction of this Court is invoked under 28 U\S.C. § 1254(1). The original opinion-of the Court of Appeals is dated April 1, 1971. Petitioners’ timely petition for rehearing was denied on May 28, 1971. “QUESTION PRESENTED i e ° ° e ° “ e = Did the. Court of Appeals err in affirming the dis- trict -court’s finding ‘and holding that petitioners’ mo- tions for relief under Rule 60(b) were not timely filed when:. a : a. Ve 2 ‘ ees) ht Aint Ch NS TR PRG SAE EB AS RSI ‘The motions were filed on July 1, 1969, and © alleged a “typical case of mistake and noth- ing more” within the méaning of Rule .60(b) (1); and The motions sought relief from. prior dis- missals of the causes without prejudice for’ failure to obey a court order which had the — ‘following procedural history: On July 12, 1967, the causes were dis- * missed with prejudice by the district court for failure to obey a court order, . On appeal, the dismissals were affirmed but modified so as to be without preju- dice. The Court of Appeals’ original opinion was rendered on June 28, 1968; - and its opinion on rehearing was ren- dered on August 29, 1968. On September 10, 1968, the district court entered an order dismissing the causes without’ prejudice in accordance with the appellate mandate. ~ On January 13, 1969, this Court denied certiorari? 4 t FEDERAL RULE OF CIVIL, PROCEDURE» INVOLVED. | Federal Rule of Civil Procedure 60 provides: . “(a) Clerical Mistakes. Clerical mistakes ‘in . judgments, orders or other parts of the record . and .errors therein arising from oversight or | omission. may be corrected by the court at any ~ time of its own initiative or om the motion of any party and after such notice, if any, as the court orders. During the pendency-of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court, and ‘there- . after while the appeal is pending may be so corrected with leave of the appellate court. (b) Mistakes; Inadvertence; Excusable Ne- glect; Newly Discovered Evidence; Fraud, ete. On motion and upon such terms as are just, the — court may relieve a party or his legal representa- tive from a final judgment, order, or proceeding ‘ for the following reasons: (1) mistake, inadvert- ence, surprise, or excusable neglect; (2) newly - discovered evidence which by: due diligence could not have been discovered in time to move for a -new trial under Rule 59(b!:; (3) fraud (whether heretofore denominated intrinsic or extrinsic), . misrepresentation, or other misconduct of an adverse party; (4) the judgment i is void; (5) the judgment has been satisfied, released, or dis- charged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should 2 ee eee 5 _ have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within _ a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, ~ ‘order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its opera- tion. This rule-does not limit the power of a court to entertain an independent action to re- lieve a party from a judgment, order, or pro- ceeding, or to grant relief to a defendant not actually personally notified as provided in Title 28, US.C., § 1655, or to set aside a judgment for fraud upon the court. Writs of coram nobis; ‘coram vobis, audita querela, and bills of review ~ and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rales or by an aie cacamaee action.” STATEMENT OF THE CASE _ Petitioners, as plaintiffs below, filed two suits in the United States District Court for the Southern District of Florida (R. 12-75, 261-284)*. The complaints sought to re- cover damages from the respondent, Security Trust Company, because of tlie latter's alleged mismanagement fe 1 ; . *“R” refers to the printed record used on both appeals in the Court of Appeals below. “A” refers to the printed Joint Appendix used in the second appeal below. 6 of McKinley & fae McKinley & Cétinpany was al-. leged to have gone insolvent after entering into separate management agreements to act as manager for various insurers in the writing of certain types of insurance. The named plaintiffs in each case were foreign in- surance companies authorized to do business in Florida: In each case, plaintiffs sued “to their own use and to the use of” certain other insurers similarly situated (R. 12-13, 261-262).: After some preliminary procedural sparring» had occurred, the district court entered an order on Sep- - tembér 14, 1966, which provided in pertinent part: “1, Plaintiffs shall within ten (10) days here- after amend their complaints so as to -include as parties Plaintiff all members of the alleged class who have retained counsel for the Plaintiffs '_ to represent them in these two cases.” (R. 179). aids ape a having four? a failure of compliance on the part : of appellants,.the District Court’s judgment of dismissal was affirmed with directions that the order be entered without prejudice as set out in | our Per Curiam of June 28, 1968. This Court will . - Not modify its previous ruling despite any Flor- ida law claimed by appellants which may or may -not bar a rie cause of action_in any fu- ture suit. ay ale iy Ss 2 ee of Order On Mandate and Denial of Certiorari e The Court of Appeals’ denial of the: fetition for re- hearing on August 29, 1968, was foll lowed on September 10, 1968, by the district court’s entry of a dismissal with- out prejudice in accordance with the appellate mandate (A. 333-334). Thereafter, on January 13, 1969, this Court denied certiorari. 393 US. 1024. Rule 60 —— In anaeatet pias ; On aa 24, 1969, over six x months after the Cagis denial of certiorari, the Court of Appeals granted peti- tioners leave to file a Rule 60 motion stating: . However, the granting of this leave to file said motion is not to be construed for or against — the merits of the plaintiffs’ Rule 60 motion.’ (A. 398). On July | 1, 1969, petitioners filed their Rule 60 mo-: tion in the district court which was styled “Joint Motion for Plaintiffs and Class meats for Relief = oe 13 Pore re . ments, ‘Pursuant: to Rule 60(b) (6) of the Federal Rules _ of Civil Procedure.” (A. 340-345). In their joint motion, petitioners requested that the: dismissal without preju- dice be vacated so that dismissals without prejudice “and with leave to filé amended complaints” could be entered (A. 345). . - In Paragraph 7 of the Joint Motion, petitioners ex- plained their failure to comply :with the September 14th order and their grounds for vacating: the prior dismissal without -prejudice as follows: ; “7, The circumstances leading to the .order of dismissal of July 12, 1967 involved the failure of plaintiffs to join as parties four Florida cor- - porations whose. joinder would have concomit- antly destroyed diversity and federal jurisdic- tion. The failure to join the Florida companies arose from.a bona fide misunderstanding of the order of September 14, 1966 and a procedural pone occasioned by the July 1, 1966 amend- nt to Rule 23 altering the character of these actions (which had originally been filed as class actions determinable from the face of the plead-° - - ings) so as to render them without classification _ until an ‘order of Court, pursuant, to Rule ~ ., 23(e)(1) had been entered. The-order cf Septem- ber. 14 admits of two interpretations and the interpretation taken by counsel for the plaintiffs Bens was that all’members of the class were required to be joined as parties, pursuant to paragraph 1 of said order. The decharacterization effect of the July 1 — to fale 23 was such that , 14 the amendment to the complaints, which counsel | believed to be required: by paragraph 1 of the ° September 14 order, would have defeated federal jurisdiction in a manner inconsistent with the applicable provisions of Rule 19 and 20. Thus, counsel in an attempt to preserve federal juris- diction was caught in the cross-fire of confusion between Rule changes and an order of this Court which seemingly-embraced elements of both the old and the amended Rule... . ” (A. 342). _ Two weeks later, petitioners’ counsel filed. a memo- randum in support of the joint motion in which they ex- — panded the grounds for relief by claiming that they had . in fact complied with the September 14th order because they had actually’ not been “retained” by the Florida « corporations they failed to name as plaintiffs (A. 353- - 856). As noted, supra, the district court found to the contrary when it entered the initial dismissal with prej- udice (A. 229-231); and its finding in this respect was affirmed by the Court of Appeals on the prior. appeal. — The prior findings that petitioners did not comply with the. September 14th order: could have come as no surprise since they had previously admitted that the order required them to name the Florida corporations as plain- tiffs. Thus, petitioners’ counsel anmitted ‘in the district court that: (Furthermore, three of the corporations that we do represent are Florida corporations. One of them is General Guaranty of Orlando. The full name of that corporation is General Guar- » + ee + RIE TE Oy) ERE RP Cn (15 anty Insurance Company of Orlando. Three of the corporations that are Florida corporations . that we}represént are General’ Guaranty Insur-. , we ican Firé gnd Casualty Company: of Orlando; and pany.of Winter Park, Florida; Amer- Carolina’ Casualty Company of Jacksonville, Florida.” (R. 253. Cf. 229-230). Moreover, ‘in their. “Brief-of Petitioner” before the Court of Appeals in the prior ‘mandamus and prohibition proceedings, petitioners stated: “On September 14, 1966 the trial court sua sponte entered an order requiring that the com- plaint be amended so as to add-as additional par-. ties plaintiff all members of the class who have retained counsel for the plaintiffs to represent _them in the case. (Exhibit C). It is undisputed that four (4) of the companies whose : ‘joinder ’ would be required under this ruling are Florida _ corporations. (Exhibit F). The ‘defendants like- » wise are -Florida residents.” ( Brief. For Peti- tioner, p. 2). : oe On November 19, 1969, the district court denied the Rule 60 motions’as untimely filed (A. 448-450). trict court found that, “The pleadings indicate the typi- cal case of mistake and. nothing more.” (A. 449}. ing and holding that the motions were untimely, the ‘dis- trict court reasoned & follows: | “Rule 60(b) (1) must be ial within a reason- able time not to exceed one year ‘from the date of the order from which relief is sought. Plain- — ‘ The dis- -In find- 3, q ’ res 16 tiff feels that the time should run from Order on Mandate dated September 10, 1968. It is as- ‘Serted that the time runs from.a: substantive : change in the order. The cases cited by Plain- tiffs are not authoritative since they deal with the time limit for appeals. In fact, the case most strenuously urged by Plaintiff argues to the con- trary result. Federal Trade Commission ae Minneapolis- Honeywell Regulater Company, 344 U.S. 206 (1952). The decision of the- Fifth Cir- cuit in the present case did cause a substantive © ’ change in that it reversed the dismissal ‘with prejudice.” However, the aspect of the order that was so vitally important to Plaintiffs was the dis- missal itself. The complaint: remained dismissed. As far as Plaintiffs stood they remained as they were at the time of the July Dismissal Order. It cannot be said that in context ‘this was a sub- stantial modification. The Court is compelled to the conclusion that it is the July Dismissal Order . that Plaintiff seeks relief from and the time limit must run from.that date unaffected by the Order on Mandate. ° A reasonable time is usually construed: as the time allowed for appeal. McDowell v. Celebrezze, 210 F.2d 43 (5th Cir. 1962); 7: Moores Federal Practice, Para. 60.22[3](2nd ed. 1955). How- ever the prosecution of an appeal does not bar . the application to the District Court for relief pursuant to Rule 60(b). Ferrell v. Trailmobile, Inc., 223 F.2d 697 (5th Cir. 1955). Plaintiff should have sought relief in this Court within 17 - one year of the Order of July 12, 1967. An ap- peal does not toll the one year time limit. Al- though the Petition for Rehearing had not been denied, the decision -of-:the Fifth Circuit had been rendered leaving sufficient time to file the.. motion here under consideration which was filed July 1, 1969. It is therefore Ordered and Adjudged that Plaintiffs’ Motion for Relief Pursuant to Rule 60(b)(6) be treated | as a motion pursuant to 60(b)(1) and as such be denied as being untimely filed... . ”- (A. 450). "Opinion of Court of Appeals Below In affirming the district court, the.Court of Appeals agreed “with the District Court that this is a typical case of mistake and nothing more.” 441 F.2d at 792. Having so agreed, the Court of Appeals concurred in the district court’s findings and holding that the motions were not filed within the one year period prescribed in Rule 60(b) (1) saying at 441 F.2d 791: 2 “Although plaintiffs ignakind from the order of . dismissal, such appeal does not toll the time -for: making a 60(b) motion. This is because such mo- tion can be made even though an appeal has been taken and is pending. Corn v. Guam Coral Co., 318-F.2d 622 (9th Cir. 1963); Ferrell v. Trailmo- bile, Inc., 223 F.2d 697 (5th Cir. 1955); 7 Moore, Federal Practice, § 60.28[2] (2d Ed. 1970). If _ the appeal results in a substantive change, then 18 the time would run from the substantially modi- fied order entered on mandate of the appellate court. Federal Trade Commission v. Minneapo- lis-Honeywell Co., 344 U.S. 206, 72 S.Ct. 245, 97 "L.Ed. 245 (1952). The decision of our Court on_ the appeal did not cause a substantive change in that the dismissal was merely changed to be without’ prejudice. As far as this suit was con- cerned, after the entry of the order on the man- date on September 10, 1968, the plaintiffs stood in the exact position as they did on July 12; 1967. As far as their claim was concerned, the appeal deter mined that the dismissal would not act as a bar to another suit in this or another forum, but as to pursuing the cause of action in this suit, the complaint remained dismissed. Changing a dismissal with prejudice to a dismissal without prejudice is not such a substantial substantive change as to renew the right of plaintiffs to . bring a motion for relief under Rule 60(b), F.R. Civ.P., or extend their time for filing such a motion. “The District Court correctly held that the time for bringing the 60(b) motion for relief from the dismissal of the ee, began on July 12, 1967.” 19 REASONS FOR DENYING THE WRIT 1. Petitioners concede at page 22 of their petition that there is no decision in conflict with the holding below that the Rule 60(b)(1) one year time period was not tolled by the subsequent appellate proceedings. What little authority there is, is in accord with the holding below. Corn v. Guam Coral Company (9th Cir. 1963), 318 F.2d — 622, 629; Nyssonen v. Bendix Corporation (1st Cir. 1966), 356 F.2d ae cert.den. 385 U.S. 846; 7 Moore’s Foderhl Practice, § 60.28(2), p. 320, fn. 37. 2. The decision, below is correct and in probable ac- cord with this Court’s prior decisions. See, Federal Trade Commission v. Minneapolis-Honeywell R. Co., 344 U.S: 3. Since both courts below found and held that -pe- titioners’ motions presented a typical case of mistake and nothing more, the record raises no issue concerning what result should obtain when a motion for relief also pre- sents “any other. reason” within the meaning of Rule 60(b) (6). Indeed, the concluding paragraph of the Court of Appeals opinion below states: “Nevertheless, the District Court further con- sidered whether any other reasons brought . plaintiffs within the broad equitable power of Rule 60(b) (6), which could be invoked to pre- vent extreme -hardship or injustice. Barron & * Holtzoff (Wright Edition) § 1330, p. 426 (1958). "The Court determined that ‘the situation’ here is not the type that justifies such an extreme’ > ee 20 exercise of discretion.’ Our review of the rec- ord reveals no other reasons which-would com- pel the court to exercise its discretion in grant- ing relief or would show any abuse of discretion in denying relief.” 441 F.2d at 792. ° . 4. Even if petitioners’ motions are treated as aris- ing under Rule 60(b)(6), it is clear that they were not -made “within a reasonable time”. The motions were‘ — _ made two years after the original dismissal; more than a-year after the Court of Appeals’ first opinion on appeal; _ and six months after this Court’s denial of. certiorari. During the entire time, the only thing that happened was that petitioners were told again and again by one court _after another that their cases were properly dismissed for failure to obey a court order. Cf. Goldfine v. United . States (Ist Cir. 1964), 326 F.2d 456; McDowell v. Cele- brezze (5th Cir. 1962), 310 F.2d 43; 7 Moore's Federal Practice, § 60.22(3), p. 238. 21 CONCLUSION It is respectfully: submitted that the petition for a writ of certiorari to the United States Court of Appeals for the Fifth Circuit. = be denied. Respectfully caheibted, JAMES A. DIXON 700 Roberts Building Miami, Florida 33130 and . SAM DANIELS 1414 duPont Building Miami, Florida 33131 Attorneys for Respondent Security Trust Company By __ Sam Daniels oe se CERTIFICATE OF SERVICE _I HEREBY CERTIFY that in accordance with Su preme Court Rule 33, true copies of the foregoing were mailed on this —_.. day of September, 1971, to the fol- _ lowing counsel of record: E. BARRETT PRETTYMAN, JR.; ESQUIRE . PETER F. ROUSSELOT, ESQUIRE 815 Connecticut Avenue Washington, D. C. 20006 GEORGE P. BOWIE, “ESQUIRE . 901 Washington Avenue St. Louis, Missouri 63178 SAMUEL J. POWERS, JR., ESQUIRE First Federal Building — Miami, Florida 33132. MacFARLANE, FERGUSON, ALLISON & KELLY P.O. Box 1581 - , Tampa, Florida 33601. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_1496%3A2. Public record. Not legal advice.