Opposition Brief — Cissna v. McQuaid

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SUBJECT INDEX

Page

I. Question Presented for Review 1

II. Court Rules Relevant to Case Not Provided by

Petitioner

III. Statement of the Case..

IV. Argument 5

1. The Trial Court’s Decision Was Correct............ 5

A. The Only Question for Review Is Whether the

Trial Judge Abused His Discretion in Deny-

ing Mr. Cissna’s 60(b) Motion for Relief

from the Judgment 5

B. The Record Is Devoid of Any Evidence

Which Shows An Abuse of Discretion. On

the Contrary, the Record Demonstrates That

the Trial Court Correctly Exercised Its Dis-

cretion and That Therefore the Court of

Appeals Correctly Affirmed the Trial Judge's

Decision 6

2. This Case Should Not Be Reviewed By the

Supreme Court 8

A. The Question Presented for Review Is Par-

ticularly Inappropriate for Consideration By

the Supreme Court 8

B. Even If This Court Desired to Consider the

Question Presenied for Review, It Should

Not Do So Because the Record Is Incom-

plete. Mr. Cissna Failed to Comply With

His Obligation for Establishing An y+ Brahe

Record for Review G

C. This Court Should Not Consider Mr. Ciss-

nas Arguments Since These Were Not

Urged Below for the Trial Court’s Consid-

eration . ;

3. The Arguments Made By Mr. Cissna Are Ir-

relevant and Without Merit ll

10

ii

Page

A. The Arguments Made By Mr. Cissna for

Allowance of the Writ Are Not Relevant to

the Question Presented for Review.............. ll

B. Even If the ts Made in Mr. Cissna’s

Petition for a Writ of Certiorari Are Consid-

ered, They Are Not Supported by Authority... 13

1. Denial of due process and excessive fine.. 13

2. Defense to action 15

3. Reasons for not answering interrogatories 15

'V. Conclusions 16

TABLES OF AUTHORITY

Table of Cases

Appalachian Power Co. v. American Institute of Certi-

fied Public Accountants, 4 L. Ed. 2d 30, 80 S. Ct. 16

(1969) 9

Farmers Cooperative Elevator Ass'n Non-stock of Big

-- Springs, Nebraska v. Strand, 382 F.2d 224 (8th Cir.

1967 ) cert. denied, 389 U.S. 1014 (1967) reh. denied,

390 U.S. 913 (1968) 5

General Talking Pictures Corp. v. Western Electric Co.,

304. U.S. 175 (1938) 8-9

Hammond Packing Co. v. Arkansas,

212 U.S. 322 (1909)... 13

Hemming v. United States,

=° 400 F.2d 11 (Sth Cir. 1960) .ouu..........ccsccccccccsccesectate 10

Hovey v. Elliott, 167 U.S. 409 (1897).. 13

Long v. Emery, 383 F.2d 392 (10th Cir. 1967)............ 7

Martella v. Marine Cooks & Steward Union, Seafarers

- Int'l Union of North America, AF L-CIO, 448 F.2d 729

. (9th Cir. 1971) cert. denied, 405 U.S. 974 (1972)... 6

iii

Page

McFarland v. Gregory, 425 F.2d 443 (2d Cir. 1970)..14, 15

McGrath v. Manufacturers Trust Co.,

338 U.S. 241 (1949) 1l

Morse-Starrett Products Co. v. Steccone,

205 F.2d 244 (9th Cir. 1953) 12

National Labor Relations Board v. Pittsburgh Steam-

ship Co., 340 U.S. 498 (1951) 9

Perrin v. Aluminum Co. of America,

197 F.2d 254 (9th Cir. 1952) 6, 12

Polites v. United States, 364 U.S. 426 (1960)................ 12

Seifert v. Solem, 387 F.2d 925 (7th Cir. 1967).............. 6

Societe Internationale v. Rogers,

357 U.S. 197 (1958) 13, 14

Springer v. Best, 264 F.2d'24 (9th Cir. 1959) ................ 10

Thomas v. Colorado Trust Deed Funds, Inc.,

366 F.2d 136 (10th Cir. 1966) 8

True’s Oil Co. v. Kenney,

76 Wn.2d 130, 455 P.2d 954 (1969) 15

United States v. Atkinson, 297 U.S. 15 (1936)...............- 11

Constitutional Provisions

U.S. Const. amend. V 12

U.S. Const. amend. VIIL..... 12,14

Statutes

ROW -SaOLOGD : .ncccccccsstlisc 15

RCW 23A.44.145 15

Textbooks

7 Moore, Federal Practice § 60.30[2] .... 12

{ 77.05 7

iv

Other Authority

Page

Fed R. App. P. 4 4

3 ID) ss... oe

ME es ag 3

Fed. R. Civ. P. 6(d) 15-16

37 7

37(b) 14

37(b) (2) 4

OO) ns 1-2, 5, 6, 7, 8, 9, 10, et seq.

77(d) 3

Supreme Court Rule 19(b) 11

23.1 12

IN THE

Supreme Court of the United States

October Term, 1974

No. 74-482

J. R. Cissna,

Petitioner,

i Kes

Tuomas L. McQuap, Trustee in Bankruptcy for

FEDERAL SHOPPING Way, INC.,

Respondent.

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS

OF THE NINTH CIRCUIT

I,

QUESTION PRESENTED FOR REVIEW

Did the trial court clearly abuse its discretion in refusing

to grant petitioner J. R. Cissna’s motion under Rule 60(b),

Federal Rules of Civil Procedure, to vacate the judgment

granted against Mr. Cissna in this cause?

Il.

CC: 2T RULES RELEVANT TO CASE NOT

PROVIDED BY PETITIONER —

Rule 60(b), Federal Rules of Civil Procedure:

“(b) Mistakes; Inadvertence; Excusable Ne-

glect; Newly Discovered Evidence; Fraud, etc. On

‘motion and upon such terms as are just, the court may

relieve a party or his legal representative from a final

2

order, or proceeding for the following rea-

sons: (1) mistake, inadvertence, surprise, or excusable

| napect (2) newly discovered evidence. which by due

ence could not have been discovered in time to

move for a new trial under Rule 59(b); (3) fraud

(whether heretofore denominated intrinsic or extrin-

sic), misrepresentation, or other misconduct of an ad-

verse, ; (4) the judgment is void; (5) the judg-

ment satisfied, released, or discharged, or a

prior judgment upon which it is based has re-

or otherwise vacated, or it is no longer equita-

ble that the judgment should have prospective appli-

cation; 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 judg-

ment, order, or proceeding was entered or taken. A

mt ey oS meine (b) does not cag

i a judgment or suspend its operation. Thi

rule doce not limit the power of a court to entertain

an independent action to relieve a party from a judg-

ment, order, or proceeding, or to grant relief to a de-

fendant not actually personally notified as provided in

Title 28, U.S.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 rules or by

an independent action. :

Rule 77(d), Federal Rules of Civil Procedure:

“(d) Notice of Orders or Judgments. Immedi-

ately upon the entry of an order or judgment the clerk

shall serve a notice of the entry by mail in the manner

Laer teryr for in Rule 5 upon each party who is not in

ault for failure to appear, and shall make a note

in the docket of the mailing. Such mailing is sufficient

notice for all purposes for which notice of the entry

of an order is required by these rules; but any party

- may in addition serve a notice of such entry in the

manner provided in Rule 5 for the service of papers.

3

Lack of notice of the entry by the clerk does not affect

the time to appeal or re or authorize the court

to relieve a party for failure to appeal within the time

allowed, except as tted in Rule 4(a) of the Fed-

eral Rules of Appellate Procedure.”

« Ill.

STATEMENT OF THE CASE

On November 13, 1967, a reorganization proceeding for

Federal Shopping Way, Inc. was commenced pursuant to

Chapter X of the Bankruptcy Act in the United States Dis-

trict Court for the Western District of Washington. On

May 20, 1970, respondent Thomas L. McQuaid, trustee of

Federal Shopping Way (hereafter referred to as “trustee” )

commenced an action against petitioner J. R. Cissna’ and

others pursuant to the District Court's plenary jurisdiction

under Chapter X (Record at 1).

On April 12, 1971, extensive interrogatories were served

by plaintiff upon defendant J. R. Cissna. Upon failure of

Mr. Cissna to answer the interrogatories within the re-

quired time, written requests were»made to Mr. Cissna’s

attorney for answers with no result (Record at 23). On

August 4, 1971, a written request was made to Mr. Cissna’s

attorney for a conference of attorneys with regard to dis-

covery (Record at 23). On September 3, 1971, another

written request was made for answers to a conference, with

no result (Record at 23).

On October 27, 1971, a motion was made for an order

compelling discovery (Record at 22). On approximately

1. In keeping with the spirit of Rule 28(d), Fed. R. App. P., peti-

tioner was referred to by name in trustee’s lower court brief. Trustee

will continue this practice in this brief.

ee

4

November 10, 1971, the court entered an order directing

J. R. Cissna to file and serve answers to the interrogatories

within 15 days of that order (Record at 24).

On December 9, 1971, approximately two weeks after

the deadline for filing and serving the answers had ex-

pired, plaintiffs moved for a judgment by default pursuant

to Rule 37(b)(2), Federal Rules of Civil Procedure, for

failure of defendant J. R. Cissna to comply with the No-

vember 3rd order ( Record at 29).

An affidavit controverting this motion was filed by de-

fendant Cissna (Record at 31) who personally argued in

opposition to the motion (Record at 62). After hearing,

the court took the matter under advisement and directed

counsel to submit proposed orders. A form of judgment was

submitted by plaintiff to the court in accordance with Rule

58, Federal Rules of Civil Procedure. This judgment was

signed and entered on December 20, 1971 (Record at 62).

On January 19, 1972, the time allowed under Rule 4, Fed-

eral Rules of Appellate Procedure, for filing a notice of

appeal expired and on February 18, 1972, the time expired

for seeking an extension of the time allowed for filing notice

of appeal under Rule 4.

On December 13, 1972, Mr. Cissna moved pursuant to

Rule 60(b), Federal Rules of Civil Procedure, to have the

December 20, 1971 judgment vacated (Record at 64). The

matter came on for hearing on December 15, 1972. At that

hearing Mr. Cissna personally argued his motion as well

as testified (Record at 76, 82); infra at 10, n. 2. On Jan-

uary 17, 1973, an order was entered by the Honorable

W. D. Murray denying Mr. Cissna’s motion to vacate the

judgment (Record at 76). An appeal was taken from that

5

order to the United States Court of Appeals for the Ninth

Circuit. On June 11, 1974; that court affirmed the decision

of the trial court. A timely motion was filed by Mr. Cissna

for a petition for rehearing and for a rehearing en banc.

This motion was denied on July 25, 1974. Mr. Cissna then

petitioned this court for certiorari.

IV .

ARGUMENT

1. The Trial Court’s Decision Was Correct

A. The Only Question for Review Is Whether the Trial

Judge Abused His Discretion in Denying Mr. Cissna’s

60(b) Motion for Relief from the Judgment

As the statement of the case and the record indicate, the

appeal which Mr. Cissna took to the United States Court of

Appeals for the Ninth Circuit was from Judge Murray’s

order denying Mr. Cissna’s motion under Rule 60(b),

Federal Rules of Civil Procedure, to vacate a judgment

against Mr. Cissna granted almost a year earlier. In his

petition for a writ of certiorari, Mr. Cissna raises numerous

questions and issues. However, it is clear that there is only

one question which is relevant in reviewing a denial of re-

lief under Rule 60(b).

It is established law that motions under Rule 60(b) pro-

vide for extraordinary relief which may be invoked only

upon exceptional circumstances and the ruling of the trial

court upon such motions may be set aside only upon a clear

showing of abuse of discretion. Therefore the question for

‘review would be, did the trial court clearly abuse its dis-

cretion? Farmers Cooperative Elevator Ass'n Non-stock

of Big Springs, Nebraska v. Strand, 382 F.2d 224, 232,

(8th Cir. 1967), cert. denied 389 U.S, 1014 (1967), reh.

6

denied 390 U.S. 913 (1968); Martella v. Marine Cooks

and Stewards Union, Seafarers Int'l Union of North Amer- °

ica AFL-CIO, 448 F.2d 729 (9th Cir. 1971), cert. denied,

405 U.S. 974 (1972).

B. The Record Is Devoid of Any Evidence Which Shows

An Abuse of Discretion. On the Contrary, the Record

Demonstrates That the Trial Court Correctly Exer-

cised Its Discretion and That Therefore the Court of

Appeals Correctly Affirmed the Trial Judge’s Decision

The essence of Mr. Cissna’s argument to the trial court

claiming relief from the judgment taken against him was

that he was unaware of its entry and therefore did not take

an appeal from that judgment (Record at 64-69). There is

an assertion in the record that Mr. Frank Payne, Mr. Ciss-

na’s attorney, specifically inquired and was advised that the

judgment had been entered (Record at 72). Therefore, Mr.

Cissna’s statement that neither he nor his attorney were

informed was challenged and the trial judge may have

chosen not to believe Mr. Cissna. Since no findings of fact

were asked for by Mr. Cissna, there is no way of knowing

whether this was the case. However, the trial court’s de-

cision is entitled to support from all reasonable presump-

tions from the record, Cf. Seifert v. Solem, 387 F.2d 925

(7th Cir. 1967), and-the burden of asking for findings of

fact was upon Mr. Cissna. See Perrin v. Aluminum Co. of

America, 197 F.2d 254, 255, n. 1 (9th Cir. 1952).

Even assuming that Mr. Cissna’s assertion that he was

unaware of the judgment was true, this would not amount

to grounds for relief under Rule 60(b). Mr. Cissna asserts

that the trial court’s clerk failed to comply with Rule

77(d), Federal Rules of Civil Procedure, which requires

the clerk to serve notice.of the entry of judgment by mail.

However, the Rule goes on to state:

“Lack of notice of the entry by the clerk does not

7

affect the time to appeal or relieve or authorize the

court to relieve a ih for failure to appeal within

the time allowed .

The purpose of this provision is to put an affirmative

obligation on the defendant to inquire into the status of

the proceedings. See 7 Moore, Federal Practice § 77.05,

pp. 77-10-14 (1972). As the records of the Court of Ap-

peals of the District Court indicate, Mr. Cissna is a mem-

ber of the bar of both courts. As such he is bound to be

familiar with the requirements of the Federal Rules of

Civil Procedure and therefore cannot claim the ignorance

of a layman.

Even, disregarding the requirements of Rule 77(d),

the proceedings leading up to the entry of the default

judgment should have alerted any person to inquire into

whether a judgment was entered. The default judgment

was entered pursuant to a motion for default judgment

under Rule 37, Federal Rules of Civil Procedure (Record

at 29). The motion was noted for argument and argument

heard with Mr. Cissna personally participating in that ar-

gument (Record at 62). At the hearing, the court spe-

cifically requested forms of orders from both parties and

took the matter under advisement (Record at 75). It

would seem that any reasonable person would be put on

notice by these »ircumstances to inquire into what subse-

quent action the trial court took. Mr. Cissna’s claim that

his lack of notice justifies relief under Rule 60(b) clearly

has no substance. This is particularly the case where, as

here, the party seeking relief himself contends that he

went almost one year before finding out about the judg-

ment and then only by accident (Record at 66). See

Long v. Emery, 383 F.2d 392 (10th Cir. 1967).

8

2. This Case Should Not Be Reviewed By the Supreme

Court

A. The Question Presented for Review Is Particularly

Inappropriate for Consideration By the Supreme

Court

Appropriate and relevant arguments supporting Mr.

Cissna’s contention that this court should grant certiorari

would attempt to show that the trial court had clearly

abused its discretion. To prove an abuse of discretion,

the appellant Mr. Cissna would have to show that the

motion was substantiated beyond doubt by adequate proof

as established in the record and that therefore it was

clear error on the trial judge’s part in denying the motion.

See Thomas v. Colorado Trust Deed Funds, Inc., 366

F.2d 136, 139 (10th Cir. 1966).

Thus, review by this court of the trial judge’s decision

would require an analysis of the particular facts regarding

the failure of Mr. Cissna to file an appeal and whether

those facts clearly showed that the trial court abused its

discretion in denying Mr. Cissna’s 60(b) motion. The Su-

preme Court of the United States does not grant a writ

of certiorari merely to review the evidence or inferences

drawn from it. General Talking Pictures Corp. v. West-

ern Electric Co., 304 U.S. 175, 178 (1938).

The conclusion that this case is not an appropriate one

for review by the Supreme Court is underscored by Justice

Brennan, who stated:

“But ordinarily an application by a district court of

the rules of civil procedure when affirmed by the

Court of Appeals will not be reviewed by this court.

This is ly true where as here, the question

is one concerns the judgment of the district court

9

in relation to a particular set of facts.” [Emphasis

added. |

Appalachian Power Co. v. American Institute of Certified

Public Accountants, 4 L.Ed.2d 30, 32, 80 S. Ct. 16 (1959)

(per Brennan, J., as Circuit Justice). Mr. Cissna has not

presented any arguments as to why these principles should

be departed from.

While the size of the judgment against which Mr. Ciss-

na’s motion under Rule 60(b) was directed makes denial

of the motion of obvious concern to him, this is not a

sufficient reason for this court to review the trial judge’s

decision. As Mr. Justice Frankfurther stated:

“Certiorari is granted only ‘in cases involving princi-

ples the settlement of which is of importance to the

public as distinguished from that of the parties, and

in cases where there is a real and embarrassing con-

flict of opinion and authority between the circuits

courts of appeal.’.. .

“This is not the place to review a conflict of evi-

dence . . .” [Citations omitted] [Emphasis added]

National Labor Relations Board v. Pittsburgh Steamship

Co., 340 U.S. 498, 502-503 (1951).

B. Even If This Court Desired to Consider the Question

Presented for Review, It Should Not Do So Because

the Record Is Incomplete. Mr. Cissna Failed to Com-

ply With His Obligation for Establishing An Ade-

quate Record for Review

Rule 10(b), Federal Rules of Appellate Procedure, im-

poses upon the appellant the duiy to include in the record

a transcript of all evidence which supports his contention

that a finding or conclusion is unsupported by the evidence

or is contrary to the evidence. As indicated by its absence

in the record, Mr. Cissna failed to provide any transcript

10

although he gave testimony at the 60(b) hearing.? With-

out having all the evidence relied upon by the trial court,

it seems clear that this court cannot determine that the

trial judge abused his discretion. Hemming v. United

States, 409 F.2d 11 (5th Cir. 1969); Springer v. Best,

264 F.2d 24 (9th Cir. 1959).

C. This Court Should Not Consider Mr. Cissna’s Argu-

ments Since These Were Not Urged Below for the

Trial Court’s Consideration

Although it is difficult to tell what alleged errors of

the trial court Mr. Cissna wishes this court to review, the

two primary ones are apparently that the judgment

awarded violated the due process clause of the Fifth

Amendment and the excessive fine provision of the Eighth

Amendment. Thus, Mr. Cissna apparently argues, the judg-

ment is void and he is entitled to relief under subdivision

(4) of Rule 60(b).

As the record demonstrates, none of these issues was

raised for the trial court’s consideration, either in regard

to the proceeding which lead to the judgment or the pro-

ceeding pursuant to Rule 60(b). Neither does the motion

make any mention of subdivision (4) of Rule 60(b). In

reading Mr. Cissna’s motion, it is apparent that he was

relying on subdivisions (1), (3) and (6). Subdivision (4)

was apparently an afterthought which was not raised until

Mr. Cissna appealed the trial court’s decision to the Court

of Appeals. (Record at 64-69.)

2. As indicated in respondent's brief submitted to the Court of Appeals,

the docket sheet (Record at 82) ambiguously states that Mr. Cissna

made “statements” at the hearing on the 60(b) motion. Affidavits of

respondent's trial attorney and the courtroom deputy clerk were sub-

mitted to clarify what occurred in the lower court. These showed that

Mr. Cissna was sworn and made numerous factual assertions at the

60(b) hearing.

coool

Il

The only mention of any of these issues is the due

process issue found in a statement in Mr. Cissna’s affidavit

in support of his motion where he in effect stated that

he was withdrawing this issue from the trial court’s con-

sideration and reserving the right to bring an independent

action later on that ground. (Record at 69.) A basic rule

is that this court will not review an issue where it was

not raised in the trial court. McGrath v. Manufacturers

Trust Co., 338 U.S. 241 (1949); United States v. Atkinson,

297 U.S. 15 (1936). Therefore these issues should not now

be considered by this court.

3. The Arguments Made By Mr. Cissna Are Irrelevant

and Without Merit

A. The Arguments Made By Mr. Cissna for Allowance

of the Writ Are Not Relevant to the Question Pre-

sented for Review

Rule 19(b), Supreme Court Rules, sets forth the con-

siderations governing the decision of the Supreme Court

as to whether to review a decision from a Court of Appeals.

Five situations are specifically mentioned as to when the

Supreme Court will grant a petition for certiorari. Mr.

Cissna, in his reasons for granting the writ, has apparently

advanced two of these—first, that the Court of Appeals

“has so far departed from the accepted and usual course

of judicial proceedings, or so far sanctioned such a depar-

ture by a lower court, to call for an exercise of [the

Supreme Court's] power of supervision”, and second, that

the Court of Appeals “decided a federal question in a way

in conflict with applicable decisions” of the Supreme Court.

In support of these assertions, Mr. Cissna argues that

he was deprived of due process and an excessive fine was

12

imposed upon him in violation of the Fifth and Eighth

Amendments to the United States Constitution. In addi-

tion, scattered throughout his statement of the case, Mr.

Cissna seems to make some miscellaneous arguments.’

These appear to be that he has a defense to the action

in which the judgment was awarded and that he had

reasons for not answering the interrogatories on a timely

basis.* See Petition for Writ of Certiorari at pp. 7-9.

However, all of these arguments go to the merits of

the judgment against which his motion for vacation of the

judgment was directed. They do not go to the denial of

the motion itself which would be the subject matter of

any review. The review of a denial of relief under Rule

60(b) does not bring up the underlying judgment itself

for review. 7 Moore, Federal Practice, { 60.30[2], p. 423

(1972). See Polites v. United States, 364 U.S. 426 (1960).

Nor can review of relief under Rule 60(b) be used as a

substitute for an appeal from the judgment from which

the relief was sought. See Morse-Starrett Products Com-

pany v. Steccone, 205 F.2d 244 (9th Cir. 1953); Perrin v.

Aluminum Company of America, 197 F.2d 254 (9th Cir.

1952). Therefore, these arguments made by Mr. Cissna

have no relevance to the question for review, and thus do

not support the assertion that this court should review that

question.

3. Indeed, *{r. Cissna’s lack of clarity in making his arguments should

result by itselt in a denial of his petition. See Rule 23.1, Supreme Court

pence ca by his own assertion, is an attorney of forty years’

experience and not be allowed the leave in these matters that

might be granted. to a layman.

4. Mr. Cissna may also be attempting to argue that he had reasons for

not taking an appeal in statements made on p. 9 of his Petition for

Certiorari. However, this attempt, if it is that, is woefully inadequate

Trustee demonstrates the correctness of the trial court’s decision else-

where. See pp. 5-7, infra.

13

B. Even If the Arguments Made in Mr. Cissna’s Petition

for a Writ of Certiorari Are Considered, They Are

Not Supported by Authority

1. Denial of due process and excessive fine

Mr. Cissna’s main contentions in his petition for cer-

tiorari are that he was denied due process and had an ex-

cessive fine imposed upon him. He relies in large part on

language from Societe Internationale v. Rogers, 357 U.S.

197 (1958). See Petition for Writ of Certiorari at pp.

12-13. This quote mentions two earlier cases, Hovey v.

Elliott, 167 U.S. 409 (1897) and Hammond Packing Com-

pany v. Arkansas, 212 U.S. 322 (1909), and indicates

that the Hovey and Hammond Packing cases establish

constitutional limitations upon the power of courts in

granting default judgments for failure to comply with their

process. However, the language quoted by appellant is in-

complete. The court in Rogers went on to state that in

the Hammond Packing case:

{T]he Court ruled that a state court, consistent-

\ slik ike Slee Meee Ghee of ea mee

Amendment, could strike the answer of and render a

default judgment against a defendant who refused to

uce documents in accordance with a or-

. The Hovey case was distin on

that the defendant there a his right to de-

Jefense’” 212 US. at 350, 351.

Societe International v. Rogers, 357 U.S. 197, 209-10

(1958 ).

There is nothing in the record now before this court

which demonstrates that the default judgment was grant-

14

ed as a mere punishment. On the contrary, the record

shows that the judgment by default was granted based

on the presumption that the refusal to produce material

evidence was an admission of the want of merit of the

asserted defense. While the default judgment itself does

not expressly recite the reason it was granted, the record

indicates that trustee argued for a default based on a

want of merit of Mr. Cissna’s defense, rather than on

punitive grounds (Record at 25-28, 62).

In Rogers itself, the court overruled a dismissal under

Rule 37(b) only after finding good faith efforts to comply

with a production order in the face of prohibition to pro-

duce and a seizure of the records by the Swiss Govern-

ment, As the record demonstrates, Mr. Cissna has not

shown that he made any good faith attempts to answer the

interrogatories within the time allowed. Nor has he shown

any extraordinary circumstances such as existed in Rogers

which prevented him from answering.

Mr. Cissna, in support of his argument that the Default

Judgment was unconstitutional as an excessive fine under

the Eighth Amendment of the United States Constitution,

relies mainly on McFarland v. Gregory, 425 F.2d 443 (2d

Cir. 1970). Mr. Cissna’s reliance on this case is unfounded.

In McFarland, the court overturned the award of a penal

sanction of $7,114 for failure to provide a proper working

environment for plaintiff's accountant, who was reviewing

defendant's records pursuant to a court order. The court

noted that the $7,000 figure was arrived at by the trial

court at a proceeding of which defendant had no notice,

based on testimony without the benefit of cross examina-

tion. As indicated earlier, the Default Judgment granted

against Mr. Cissna did not involve a mere penalty. In this

=

15

case Mr. Cissna was granted a hearing, and, in fact, per-

sonally argued at that hearing (Record at 62). Therefore,

reliance on the McFarland case is misplaced.

2. Defense to action

Mr. Cissna’s supposed defense to the action is based on

no more than unsupported assertions that the law does not

support his liability to trustee. More particularly, Mr.

Cissna, without reference to authority, makes reference

to “a corporate director claim under a repealed statute.”

Petition for Certiorari at p. 8. He is apparently referring to

the old Washington Corporations Act, RCW 23.01.080,

upon which the complaint was based and which was in

effect at the time the actions complained of took place,

but repealed prior to the commencement of the action.

His assertion is apparently that with the repeal of the

Act any right of action under it was also abrogated. How-

ever, this assertion flies in the face of the opinion in

True’s Oil Company v. Kenney, 76 Wn.2d 130, 455 P.2d

954 (1969), where the court noted that the repealer to

RCW 23.01.080 had an express savings clause for any ac-

tion accrued or liability incurred prior to its appeal. 76

Wn.2d at 138, 455 P.2d at 960 (citing RCW 23A.44.145).

3. Reasons for not answering interrogatories

Mr. Cissna’s suggestion that there was a good reason

why he did not answer the interrogatories is without sup-:

port in the record. Mr. Cissna’s only explanation for

_ failing to comply with the order of the lower court di-

recting him to answer the interrogatories by a certain

date was essentially that he was busy with other matters

(Record: at 68-69). This is hardly a good reason. Rule

16

6(d), Federal Rules of Civil Procedure, specifically lays

out a method whereby a party for cause shown may seek

an enlargement of any time requirement. As a member of

the bar of the lower court, Mr. Cissna should have been

aware of this rule, yet the record indicates no attempt to

seek an extension of time to answer the interrogatories.

On the contrary—the record indicates indifference on the

part of Mr. Cissna to the whole matter even after the

motion for default was made (Record at 23, 81-82) and

after the default judgment was entered. Having sat on

his rights, he cannot now be heard to complain.

Vv.

CONCLUSION

- This is not an appropriate case for this court to review

_ on‘certiorari. Besides the fact that Mr. Cissna’s assertions

are groundless, review would require an analysis and

weighing of facts, which it is not a function of this court

to undertake. Moreover, the ‘record clearly demonstrates

that the trial judge did not abuse his discretion in denying

the motion to vacate the default judgment. Therefore, the

Petition for Certiorari should be denied.

Respectfully submitted, .

Davis, WRIGHT, Topp,

Riese & JONES

Ricuarp A. DERHAM

Davi B. GoLpsTeIn

Attorneys for Respondent