Petition for Writ of Certiorari — Andrew v. Bendix Corp.

._ IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1971

No. The. 71-1189

MILDRED FRANCES ANDREW, ADMINISTRATRIX OF

.THE ESTATE OF EDWIN FRANKLIN JACKSON,

CAPTAIN, DECEASED,

Petitioner,

VS.

THE BENDIX CORPORATION,

| Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS _

FOR THE SIXTH CIRCUIT

- LAURENCE E. STUuRTZ

BROWNFIELD, KosyDAr, BOWEN, -

-Batiy &Srurtz

88 East Broad Street

‘Columbus, Ohio 43215 .

Counsel for Petitioner

q ay LYMAN BROWNFIELD

March, 1972

ra

E. L. MENDENHALL, INc., 926,Cherry Street, Kansas City, Mo. 64106, 421-3030

Sy

,

‘

+ TABLE OF CONTENTS _

Opinions Below ORO ae OE A Sa NOTTS eR 1

Jurisdiction © 2... Seibel ceca Sohaetan nee oni ps ates cethine 2

Question Pr esented WARE el ea TAO RRM 2

Constitutional and Statutory Provdsions. Involved ........

‘Statement of the Case -............... Perrone Sabai 2

Reasons for Granting the Writ... eee ea 4

Conclusion bE NOR SC are EON » ALAN RGM ORR eNOS NER REN 6

¢

Index to Appendices

pone a A. Order of the United States District Court

for the Southern District of ERs BG SAS _ Al

Appendix B. Order of the United States Court of hae

peals for the Sixth Circuit 0000s A5-

Appendix C. Constitutional and Relevant Statutory

Provisions of the Federal and. Ohio Laws ............... Al0:

Table of Authorities

CasEs

Shapiro V. Thompson, 394 U. s: 618 (1969): EE AERO

_ STATUTES AND ConsriTUTIONAL PROVISIONS |

_ Ohio ReviSed Code, Section 2305.19. ...... eae we 2, A10-A11°

._ United States Constitution, Fifth Amendment ....2, 4,5, A10

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1971

I Sc,

“MILDRED FRANCES ANDREW, ADMINISTRATRIX OF

THE ESTATE OF EDWIN FRANKLIN JACKSON,

CAPTAIN, DECEASED,

Petitioner,

VS.

THE BENDIX €ORPORATION,

| Respondent. . -

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

~ FOR THE SIXTH CIRCUIT

Petitioner prays that a Writ of Certiorari issue to

review the judgment of the United States Court of Appeals .

for the Sixth Circuit entered in the above entitled case on.

_ December 20, 1971. gates

¢

‘OPINION S BELOW

The order and opinion of the United States District

Court overruling Respondent’s Motion to Dismiss for the.

reason that Petitioner’s claim is barred by the statute of

ie

. limitations is unreported, but reproduced in the Appendix

to the Petition as APPENDIX A. The decision. of . the

United States - Court of Appeals for the: Sixth Circuit

~ (Case. Nos. 71-1289 and. 71- 1290) is reported at ........ F2d

hae , and is reproduced in the Appendix to this Petition .

as APPENDIX Ag 3 peat

; mo JURISDICTION |

The jurisdiction of this Court is invoked under 28

U.S.C. Section 1254(1).

\ QUESTION PRESENTED ©

Whether the Ohio “saving | statute” (Ohio Revised

Code Section 2305.19) may constitutionally be restricted to

actions which were or iginally prosecuted in Ohio, so as to .

. deny benefits of the statute to transitory causes of action

which ° were originally prosecuted in another Jurisdiction. ; on

‘CONSTITUTION AL AND STATUTORY |

_. PROVISIONS INVOLVED | .

The pertinent provisions of the F¥fth Amendment to

the Constitution of the United States and the provisions.

of Ohio Revised.Code Section 2305.19 are set forth in AP-

PENDIX C annexed hereto.

STATEMENT OF THE CASE

On April 7, 1960, Petitioner’s decedent, Captain Edwin

Franklin Jackson, United States Marine Corps, died im- >.

mediately as a direct result of injuries sustained in the a

crash’ of °a Navy A4D-2 aircraft Which he, was piloting. .*

‘Captain Jackson was flying an assigned mission from the

_ Marine = Air Station in Cher ry Point, North Gerolina: ‘ 3

~ On June'l4, 1961, Petitioner filed ‘an action for wrong-. .

ful death in the United States | District Court for the Dis- -

«

— Se er Ue CRN

. an

3.

- trict of Columbia. Respondent entered its general ap-

pearance in that cause. Because Petitioner’s original Com-. ”

‘plaint was filed on a theory of negligence only, in De-

-cember, 1963, Petitioner requested, permission te file an

Amended Complaint’ to add a theory of warranty ° on the’

-same facts. ‘On February 18,- 1964, the United States Dis- .

trict Court for the District of Columbi entered an Order

ovérruling Respondent’s ‘objection to.the recommendation .

_ of the Court’s pre-trial Examiner that’ Peti idner be per--

mitted to file the Amended ‘Complaint. as Ghai to this

Order, the Sip Complaint \ was filed on March 27,.

1964. cet as os f

On June 23, 1964, another ‘braneh of the District Court

of the District of Columbia, apparently without knowledge

ofthe prior acts of the Court and the litigants, dismissed

the action; without prejudice,*for want of prosecution. Pe-

titioner could easily have had .the dismissal vacated and

proceeded in the District of Columbja’s District Court.

. However, Petitioner chose to refile her action in Ohio. The

Complaint filed’ in the District Court in Ohio was. identical

to the Amended Complaint which -had been filed’ in the’

District of Columbia in March of 1964. Petitioner decided

to file the action in Ohio to facilitate discovery of her

action. The unit whjch Petitioner claims was improperly .

produced was made in Cincinnati, Ohio, and as a conse-

quence, most of the discovery work took place in the Cin-

cinnati, ‘Ohio area.

é

When Petitioner filed her action in Ohio, Respeldent

‘moved the Court for dismissal on the ground that the stat-.

-ute of limitations barred the claim. The United States

: District Court held that the Ohio ‘ ‘saving statute” was ap- |

plicable and thus the statute of: ‘limitations ‘did not bar.

Petitioner’s action. A trial on the merits was held and a

‘ jury rendered a verdict for Respondent.

4

Petitioner appealed to the United States Court of

Appeals, Sixth Circuit, alleging error in the trial court.

Respondent perfected a cross appeal reasserting their con-

tention that the action was barred in Ohio by the statute °

of limitations because the Ohio “saving statute” is not

_applicable. ‘Fhe Appellate Court agreed dismissing the ..

' appeal. A copy of. the dismissal order of the Court: of

’ . Appeals for the Sixth Cireuit is annexed hereto as AP-

PENDIX B. |

REASONS FOR GRANTING THE WRIT

As_nearly eyery State has done, Ohio has provided by’

statute for the bringing of a new action after a timely

- commenced action has failed other than upon the merits.

The decision of the Sixth Circuit Court of Appeals un-

constitutionally restricts the application of the Ohio “sav-

ings” statute to actions which were previously commenced

and dismissed in Ohio. . a

There is no constitutional requirement that Ohio en-

act a Savings , statute. However, if’ such a statute is

enactéd, it cannot be’so structured or so interpreted as —

to discriminate arbitrarily and unfairly in its application.

_ If limited to actions originally: instituted in Ohio, the stat-

ute. arbitrarily and unfajrly discriminates against plain-

tiffs who have filed previous actions in federal courts in

sister jurisdictions ‘rather than in the forum state’s fed- —

eral court. There is no valid reason for this classifica-

tién. ‘The discrimination violates ‘the due process of laws

requirement_of the Fifth Amendment to the Constitution.

_ It is self-evident that our society is a ‘changing and

_mobile society. The United States Supreme Court recog-

nized this mobility in the case of‘ Shapiro -. Thompson,

394 U. S. 618 (19695. Shapiro held unconstitutional a

‘statutory provision which denied welfaré assistance to

5

-s residerits of a state or district. who have not resided

within . their jurisdiction for at least’ one year ’ ‘immedi-

ately preceding their application ‘for assistance.

Mr. Justice .Brennen, delivering the opinion of the

Court stated:

“This Court long. ago “recognized that the nature |

of our Federal Union and constitutional _ concept of —

personal liberty unite to require that ali citizens be

free to travel through the length and breadth of our

J# iand uninhibited by. statutes, rules or regulations

which unreasonably restrict or burden this move-

ment. That proposition was early stated by Chief

Justice Taney: in Passenger Cases; 7 How. 283, 492

(1849): ‘For all the great purposes for which the

with one common country. We are <itizens of ‘the

United States; and as members of the same commu-

nity, must have the right to pass arid repass through

: every: part of it without interruption, as freely ‘as in

our own state.’” ~

The Supreme Court held:

“Th terms of Federal power, discrimination cre-

ated by the one year requirement violates the due

process of laws of the Fifth Amendment. While the

Fifth Amendment contains no equal protection clause,

it does forbid discrimination that is so unjustifiable

-, as to be in violation of dué process.” :

The discrimination which Petitioner incurs from the

restrictive application of Ohio's saving statute is simi-

larly unjustifiable under Fifth Amendment due process

standards. Such restrictive application must be struck

down in favor of an. application which recognizes the

6

right of persons to travel without ‘unreasonable burdens

and provides the benefits of the statute to. pearance d causes

of action.

CONCLUSION

_ For the foregoing reasons, it is respectfully requested

that this Petition for a Writ of Certiorari be granted.

& ors : '- Respectfully submitted, — |

‘LYMAN BROWNFIELD

‘LAURENCE E. STuRTZ

BROWNFIELD, KoSyDAR, BOWEN, °

Batty & STurtTz |

_ 88 East Broad Street

Columbus, Ohio 43215

ee ees pe

ore wenn ge ee

4614)-221-5834- —

Counsel for Petitioner

Al ‘ pene n te.

APPEN DIX AW

IN THE UNITED STATES DISTRICT COURT .

| FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Civil Action .7338

MILDRED FRANCES ANDREWS,’

Administratrix of the Estate

of Edwin Franklin Jackson,

deceased,

Plaintiff

VS.

BENDIX CORPORATION,

Defendant —

_Order |

(Filed May 28, 1969)

This matter is before the Court on defendant’s mo-

tion to dismiss:

Branch A: For improper venue;

Branch B: For failure to state a claim upon which.

relief can be granted; and

Branch C: For the reason that plaintiff's claim is

im ass by the statute of limitations. .

The motion has been well considered on the amended com-

plaint and the supporting and contra memoranda filed by

the parties herein. :

Branch A: Venue

‘In support of this branch of the motion, defendant

contends that the allegations of jurisdiction and venue ——

> | A2

found in the amended’ complaint clearly show that this _

action has been commenced in the wrong judicial district.

Since jurisdiction is alleged to. be based on diversity of

citizenship, the applicable . venue requirements are those

provided in 28 U.S.C.A. $1391. Insofar as applicable, that.

section provides: 5

(a) A civil ‘action wherein jurisdiction is founded

only on diversity of citizenship may, except as

otherwise provided by law, be brought only in the

~ judicial district where all plaintiffs or all de--

fendants reside or in which the claim arose.

w

(c) A corporation may be sued in any judicial dis-

trict in which it is incorporated or licensed to do _

business or is doing business, and such judicial

- district shall be regarded as the residence of such

corporation for venue purposes. .

The Court tends to believe, without expressly decid-

ing, that the allegations in the amended complaint fail to °

establish venue in this court. However, plaintiff has

filed an affidavit stating that defendant Bendix Corpo-

ration is doing business in this district and that is suffi-

cient for the purpose of Section 1391.

WHEREUPON, the Court determines that Branch A

of the motion is without merit.

Branch B:—Failure to State a Claim

Defendant has failed to offer any factual allegations

or legal arguments with respect to this branch of its mio-

tion.

WHEREUPON, the Court détermines that Branch B.

of the motion is without merit.

A3

Branch C: Statute of Limitations

| The record: disctoses, (1) that ‘the event which forms.

the basis of plaintiff’s claim occurred on April 7, 1960, at

the Marine Corps Air.Station in Cherry Point, North Caro-

lina, (2) that the plaintiff commenced a civil action for

the recovery of damages against defendant .in the United

States District Court for the District of Columbsieon June

14; 1961, (3) that on February 18, 1964, the United States

District,Court for the District of Columbia entered an

order overruling defendant’s objections to a recommen-

dation of the Court’s Pretrial Examiner that plaintiff be

permitted to file an amended complaint, (4) that plain-

tiff did file her amended complaint on March 27, 1964,

said amended complaint ‘being identical to that filed in

this action on January 5, 1965, (5) that on June 23, 1964,

another branch of.the United States District. Court for

the District of Columbia dismissed the action, “without

prejudice” for want of prosecution as of January 7, 19645

and, (6) this action was commenced. January 5, 1965.

The law which controls on the question of whether,

under the above facts, this action is barred by a statute

‘ of limitations is Ohio savings statute, Ohio Rev. Code

$2305.19. - Kleve v. Negangard, 330 F.2d 74 (6th Cir. 1964);

9 O.Jur. 2d 834, Conflict of Laws §17. ‘Section 2305.19

provides that where an action is dismissed “otherwise

than. on the merits” it may be commenced within one

year of the dismissal.

The dismissal by the United States District Court for

the District of Columbia was not a decision on the merits,

and plaintiff. has not failed otherwise than on the merits

- within the meaning of Section 2305.19. Sherman v. Air

‘Reduction Sales Co., 251 F.2d 543’ (6th Cir. 1958).

, ok. Poaccrne Ad

____.___. WHEREUPON, the Count determines that Branch E

of t the motion is without merit.

ACCORDINGLY, defendant's motion to dismiss is DE- ©

NIED.

ee eee ee

United ‘States ‘District Sac

eats FRANCES ANDREW, Admin-)

Tue Benprx Corporation, ~

AD5

APPENDIX B

Nos. 71-1289 and 71-1290

UNITED STATES COURT OF APPEALS

i FOR ‘THE SIXTH CIRCUIT

" £ ,

istratrix of the Estate of Edwin

Franklin Jackson, Captain, De-

ceased,

On AppeEAL from the

United States: Dis-

. trict Court for the

Southern District of

e | Ohio.

Plaintiff-Appellant

and Cross-Appellee,

_ Defendant-Appellee

and Cross-Appellant. |

Decided and Filed December 20, 1971.

Before: PHIL.Lips,: Chief Judge, and CELEBREZZE and

PECK, Circuit Judges.

Peck, Circuit Judge. Trial of this wrongful death

action in the District Court resulted in a verdict and

judgment for the defendant, followed by this appeal al-

leging errors in evidentiary rulings during trial. The

defendant perfected a cross- -appeal alleging error by the

District Court in holding that the action was not barred

by the statute of limitations. The parties will -hereby

_ usually be referred to as they were in the trial court.

The incident which resulted in the death of plaintiff's

_ decedent and which gave rise to this action occurred

a eo.

A6

April 7, 1960. On June 14, 1961, plaintiff filed a wrong- |

____ + ful death action in the United_States—District-Court—for—

the District of Columbia, which court dismissed the ac-

tion ‘for want of prosecution as of January 7, 1964. That

dismissal may or may not have resulted from some. lack

of “communication within the District Court, but in any

event ‘without seeking to have the order of dismissal va-

cated, plaintiff for reasons which, she here attributes to

"a greater comparative facility in discovery procedures

filed. the complaint in the present case in the District

Court for the Southern District of Ohio on January 5,

1965. In this general regard, it is* to be noted that the .

death of »plaintiff’s decedent occurred in Noyth: Carolina,

that she is-a resident of that state and_that she was_ap-

pointed administratrix of the decedent’s estate by a pro-

bate court of a North Carolina county. The. defendant

is alleged in the complaint to be a Delaware corporation

with its principal place of business in Michigan and with

an office in the Northern District of Ohio.

_. That the action is to be governed by the law of Ohio

is not in debate, and the parties agree that the applicable

statute of limitations is Ohio Revised Code Section 2125.02

‘ which provides that “every such action must be com-

menced within two years after the death of [the dece-

( dent].” What is at issue is whether or not the Ohio

“savings statute” (ORC § 2305.19) has application. _ That

section provides in pertinent part:

“In an action commenced, or attempted to be com-

menced, if in due. time a judgment for the plaintiff

is reversed, or if the plaintiff fails otherwise than

upon the merits, and the time limited for the com-

mencement of such action at the date of reversal or |

failure has expired, the plaintiff * * * may commence

a new action within one year after such date. * * *”

A7

i

- Some comment to the contrary notwithstanding, we with-

aot hesitation -conciude that for- present purposes “the en-

| ° try of the District of Columbia District Court constituted |

a dismissal of that action “otherwise than upon the mer-

‘its,’ and. had that order been entered by an Ohio court.

plaintiff would clearly have been authorized by this stat-

ute to “commence a new action within one year.” . Thus

the sole issue presented’ on the cross-appeal is whether

the Ohio savings statute has application to a cause of ac-

tion against which the statute of limitations has run, but

where the cause has failed other than on its merits in

another jurisdiction. Neither the Supreme Court of Ohio

nor.any Ohio court of appeals having passed on this is-

sue, it is incumbent upon us to attempt to determine on —

the basis -of logic and existing law which way Ohio's

highest court would decide the question. Davis v. Smith,

253 F.2d 286, 289 (3rd Cir. 1958).

The district judge, citing Kleve v. Negangard, 330

F.2d 74 (6th Cir. 1964), an@ 9 O. Jur.2d 834, Conflict of

‘Laws, Sec. 17, determined the issue to be the applicability

of the Ohio savings statute. Concluding as we do that the

failure of the District of Columbia action was “otherwise

than on the, merits within the meaning of Section 2305.19,”

and after citing Sherman v, Aid Reduction Sales Co., 251

F.2d 543 (6th Cir.’ 1958), he. .in ‘effect found the savings

statute applicable and as. hereinabove indicated permitted

the cause to proceed through jury trial. .In following this,

course, however, and specifically noting that the. dis-

missal was “by the United States District Court for the .

District of Columbia”, no recognition is taken of the fact

that the issue might vary from that” presented where the —

earlier dismissal was by an Ohio tribunal: As ‘indicated,

the District Court relied on Sherman for the conclusion |

reached, but therein the dismissal for want Of prosecu- | -

A8

tion was by the Common Pleas Court of Lucas County,

Ohio, and the new action commenced within the savings

statute period was in the District-Court for the Northern |

District of.Ohio. Thus that decision is of no assistance

in considering the effect of a dismissal other than on the

merits by 4 non-Ohio tribunal.

“A case precisely in point is that of Herron v. ‘Miller,

96 Okla. 59, 220 P. 36 (1923). While that is, of course,

a state court opinion, it was adopted in its entirety by the

Tenth Circuit Court of Appeals in Estate of Tuckman v.

Estate of Cottle, 175 F.2d 775 (1949), and Herron was

‘also cited with approval and followed in Riley v. Union

Pacific Railroad Company, 182 F.2d 765 (1950). In all”

three of these cases the savings statute under consid-

eration was for presént purposes identical to ORC

§ 2305.19. Thus the law of the Tenth Circuit would clearly

require a conclusion favorable to the present defendant

on the statute of limitations question, since the syllabus

by the’court in Herron states: :

“Section 190 Comp. St. 1921, providing that. where

an action which has been commenced within due time

fails otherwise than on its merits a new action may

be commenced within one year aftér such failure, re-

fers to actions which have been commenced within

this state within due time and have failed otherwise

than upon the merits, but the statute has no applica- _

- tion, to actions which have been commenced within.

other states and have failed otherwise than upon the |

merits.” (Emphasis supplied.) |

See also, Morris .v. Wise, 293 P.2d 547 (Okla. S. Ct. 1956);

55 A.L.R.2d 1033.

_ A more recent state cOdurt decision of identical im-

port is High Admr. v. Broadnax, 271 N.C. 313, 156 S.E.2d

A9

282 (1967). Therein the original wrongful death action

was instituted in the United States District Court for the

Western District of Virginia, and following its nonsuit a

néW action was filed in North Carolina after the statute of

limitations had run but within the one-year period pre-

scribed by the North Carolina savings statute. In hold-

' ing the latter statute ‘inapplicable, the court stated, “We

adhere to the general rule that. a statute of the forum

which permits a suit to be reinstituted within a specified

‘time after dismissal of the original action otherwise than

upon its merits has no application when the original suit

was brought in another jurisdiction.” 156 S.E.2d at 284.

Thus while we attach no particular significance to this

circumstance, it is interesting to note that in the present

situation had the first action been instituted in a state or

federal court in Ohio (or, indeed, in a state or} federal

court anywhere except in North Carolina), the plaintiff's.

action would be subject to dismissal in North Carolina

under Broadnax. In an action first brought and dismissed

within the period of the statute of limitations in North

Carolina, a District Court in this Circujt held the savings

_ statute inapplicable in Sigler v. Youngblood Truck Lines,

is F. Supp. 61 (E.D. Tenn. 1957).

In the light of logic and the applicable decisions from

other jurisdictions we conclude that the Supreme Court

of Qhio would hold, as we therefore do, that Ohio Re-

vised Code § 2305.19, which permits the commencement

of a new action when a former timely filed suit on the

same cause has been dismissed otherwise than on its

. merits within one year of such commencement, has appli-

-cation only where the first action had been filed within

the State of Ohio, and specifically that it is without appli-

cation where the first suit was filed in a federal or state

_ court. in another state. At all stages of the: proceedings -

Al0

in the above case the defendant-appellee-cross-appellant

has carefully preserved its position with reference to the

‘order of the District Court which denied its motion to

dismiss for the reason that plaintiff’s claim was barred by

the statute of limitations, and it being here determined

‘uat such denial constituted error, relief on the cross-ap-

peal is considered appropriate.- It accordingly becomes

unnecessary to consider the contentions raised on appeal

by the plaintiff-appellant.

: ‘The appeal will be dismissed ‘and final tiie en-

_ tered for the defendant-appellee-cross-appellant. -

APPENDIX C

Constitution of the United States

. Amendment to the Constitution {

4

(AMENDMENT V) by

(Rights of Persons)

“No person shall . . . be deprived of life, liberty, or

property, without due process of law. .. .”

Ohio Revised Code

$ 2305.19 Saving in case of reversal. (GC § 11233)

_ Iman action commenced, or attempted to be commenced,

_if in due time a judgment for the plaintiff is reversed,

or if the plaintiff fails otherwise than upon the merits,

and the time limited for the commencement of such action

at the date of reversal or failure has expired, the plaintiff,

or, if he dies and the cause of action survives, his repre-

sentatives may commence a new action within one year

after such date. This provision applies to any claim as-

serted in any pleading by a defendant. If the defendant

is a corporation, foreign: or domestic, and whether its

All

charter prescribes the manner and place, or either, of

service of process thereon, and it passes into the hands

of a receiver before the expiration of such year, then

Service to be made within the year following such origi-

nal service or attempt to begin the action may be made

upon such receiver or his cashier, treasurer, secretary,

clerk, or managing agent, or if none of these officers can

be found, by a copy left atthe office or the usual place

_ of business of such agents or officers of the receiver with

the person having charge thereof. If such corporation is

a railroad company, summons may be served on any regu-

lar ticket or freight agent of the receiver, and if there is

“no such agent, then upon any conductor of the receiver,

in any county in the state in which the railroad is lo-

cated. The summons shall be returned as if seryed on

such defendant. ,

7S ot he