Opposition Brief — Walter v. Netherlands Mead

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IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1975

No. 75-188

AHTO WALTER,

Petitioner,

Vv.

NETHERLANDS MEAD, N.V.,

Respondent.

On Petition for a Writ of Certiorari to

the United States Court of Appeals for the Thsd Circuit

BRIEF FOR RESPONDENT IN OPPOSITION

THOMAS N. DowD

DAVID S. BLACK

J. LAURENT SCHARFF

NORMAN L. EULE

PIERSON, BALL & DowD

1000 Ring Building

Washington, D.C. 20036

Attorneys for Respondent

Netherlands Mead, N.V.

THE CASILLAS PRESS, INC.-—1717 K Street. N. W.—Waeshington, 0. C.-223-1220

IN THE

Supreme Court of the United States

OCTOBER TERM, 1975

No. 75-188

AHTO WALTER,

Petitioner.

v.

NETHERLANDS MEAD, N.V.,

Respondent.

On Petition for a Writ of Certiorari to

the United States Court of Appeals for the Third Circuit

BRIEF FOR RESPONDENT IN OPPOSITION

The Court of Appeals concluded that, under the special

facts of this case, statements made by plaintiff in his com-

plaint and adhered to in his pretrial statement had es-

topped plaintiff from later contending otherwise.

QUESTIONS PRESENTED

1. Whether Petitioner is barred from raising questions 1

and 2 of the Questions Presented in his Petition, because

Petitioner failed to make timely argument about the

Federal Rules of Civil Procedure in the Court of Appeals.

to

2. Whether the Court of Appeals decided any issue of

importance to a proper interpretation of the Federal Rules

of Civil Procedure.

3. Whether the application of equity principles of estop-

pel to the unique facts of this case presents an important

federal question which should be answered by the Supreme

Court.

STATEMENT OF THE CASE

For purposes of this brief, Respondent relies upon the

statement of facts made by the Court of Appeals in its

opinion (see Petition, Appendix C, pp. 30a-34a).

ARGUMENT

I. PETITIONER DID NOT PROPERLY FPAISE A QUES-

TION ABOUT THE FEDERAL RULES OF CIVIL

PROCEDURE IN THE COURT OF APPEALS.

The first two questions of Petitioner’s ‘Questions

Presented”” should be rejected without further con-

sideration because they were not raised in a timely manner

in the Court of Appeals.

Petitioner’s arguments about the Federal Rules of Civil

Procedure were not briefed or argued orally to the Court of

Appeals before that court decided the case.

Issues presented to this Court

“must have been urged and briefed below (Cal-

ifornia v. Taylor, 353 U.S. 553, 557, n. 2; Lawn

v. United States, 355 U.S. 339, 362, n. 16; Neely v.

Eby Construction Co., 386 U.S. 317, 330). It is not

enough that the opinion below may have men-

tioned and discussed a matter not properly raised

(Tyrrell v. District of Columbia, supra [243 U.S.

1).** #7!

Petitioner did not raise a Federal Rules question until he

filed a petition for rehearing en banc, after the Court of Ap-

peals’ decision of which review is now sought. Even then,

the ‘‘Required Statement of Counsel for Rehearing In

Banc” certified Petitioner’s belief that the court’s decision

was contrary to Rules 7, 8(d) and S4(c), and thus the other

rules (8(a), 8(c), 8(f) and 1X(b)) invoked here by Petitioner

were at no time properly argued to the Court of Appeals.

The Court of Appeals, without permitting your Respondent

to be heard on the issue (see Rule 40(a) of Federal Rules of

Appellate Procedure), denied rehearing without opinion,

other than the statement that a majority of the circuit

judges had not voted for rehearing (Petition, Appendix C,

p- 58a). Thus, the Court of Appeals never decided the

merits of Petitioner’s untimely Federal Rules arguments. ”

' Stern & Gressman, Supreme Court Practice §6.37 (4th ed. 1969).

? In its opinion, the majority of the three-judge court referred to an

argument about the Federal Rules by the dissenting judge, but ex-

plained that those Rules had no bearing on the majority's analysis of

the case. See Argument II, infra. Under the rule of Tyrrell v. District of

Columbia, supra, that kind of discussion, without argument by a party

to the litigation and opportunity for rebuttal argument by his ad-

versary, is not enough to preserve the issue for review here. Indeed, it

can be presumed that the petition for rehearing was not entertained by

the Court of Appeals because the new issue should not have been raised

in a petition for rehearing:

“* * © One seeking a rehearing will not ordinarily be per-

mitted to set up new grounds in support of his petition dif-

ferent from those urged by him on the original hearing.

Reece Folding Machine Co. v. Fenwick (C.C.A. 1) 140 F.

287, 2 L.R.A. (N.S.) 1094; A.F. Withrow Lumber Co. v.

(continued)

Il. THE COURT OF APPEALS DID NOT DECIDE ANY

QUESTION OF EITHER GENERAL OR SPECIAL

IMPORTANCE TO A PROPER INTERPRETATION

OF THE FEDERAL RULES OF CIVIL PROCEDURE.

Petitioner contends that ‘‘this case involves an important

question of the interpretation of the Federal Rules of Civil

Procedure . . .”’ (Pet. at 5). We contend that no question

about the Federal Rules is raised by the decision of the

Court of Appeals — that the first two of Petitioner’s

“Questions Presented”’ and his assertion of ‘‘Federal Rules

of Civil Procedure Involved”’ are specious. The Court of Ap-

peals majority specifically stated that its decision in this

case did not turn on an interpretation of the Federal Rules

(Petition, Appendix C, p. 48a n. 28):

‘28. Due to the steady accrual of interest from

September 1963, when the Complaint was filed,

the estoppel we find would have arisen with equal

force if Walter’s statements had been made to

Mead out of court. The estoppel found in this case

arises from statements in the pleadings only

because, after the collapse of their relationship,

Walter’s communications to Mead were solely

through the medium of papers filed in this district

court action. Since the estoppel did not arise from

the complaint as a pleading, but only from the

? (continued)

Glasgow Inv. Co. (C.C.A. 4) 106 F. 363; United States v.

Hall (C.C.A. 1) 63 F. 472.”

Marion Steam Shovel Co. v. Bertino, 82 F.2d 945, 947 (8th Cir.), cert.

denied, 299 U.S. 556 (1936). Accord, Partenweederei, Ms. Belgrano v.

Weigel, 313 F.2d 423, 424 (9h Cir.), cert. denied, 371 U.S. 830 (1962);

United States v. Walton, 411 F.2d 283, 292 (9th Cir. 1969) (concurring

opinion); cf. Cummings v. Redeeriaktieb Transatlantic, 242 F.2d 275

(3d Cir. 1957).

LET AL MET OE TBM Ob OR EIT IMT IY OS rg

complaint as a communication of Walter’s

position to Mead, we find the dissenting opinion’s

reliance on the Federal Rules of Civil Procedure

to be misplaced. This is especially true in a case

such as this, where the defense normally in-

cludible in the answer has been anticipated in the

complaint. See notes 19 and 25 above.

“The plaintiff's statement of issues (pages 15-

16 [Petition, Appendix, pp. 43a-44a] above) was

submitted pursuant to paragraph 4 of the district

court’s May 19, 1969, Pre-Trial Order. The plain-

tiff should, therefore, have been limited to the

issues included in his statement, absent an order

of the district court allowing the plaintiff to

amend his statement. See Ely v. Reading Co., 424

F.2d 758, 763-64 (3d Cir. 1970); Southard v. In-

dependent Towing Co., 454 F.2d 1115 (3d Cir.

1971); Payne v. S.S. Nabob, 302 F.2d 803 (3d Cir.

1962); F.R. Civ. P. 16. *** It is noted that no or-

der was entered by the district court expanding

the issues to be considered on the ground of

‘manifest injustice’ or any other ground. In view

of the accrual of interest from 1963 to the present,

it seems clear that there is more injustice to the

defendant, who failed to make payment in reli-

ance on a proper discharge, than to the plaintiff,

whom the trial judge made the beneficiary of a

suggestion he [the judge] advanced first near the

end of trial.”’

Thus it was that the Court of Appeals relied upon

traditional principles of equity in holding that Petitioner

Walter was estopped from contesting the validity of the

redemption demand made by Respondent. There is no

precedential value in the court’s opinion with respect to any

6

of the Federal Rules which Petitioner claims are involved.’

Unlike many other cases coming to this Court which

require it to decide first what the lower court has actually

done, this case is made simple by the manner in which the

Court of Appeals majority has explained what is and is not

the basis of its decision.

Ill. THE COURT OF APPEALS DID NOT DECIDE ANY

OTHER IMPORTANT FEDERAL QUESTION.

It is clear that the opinion below cannot be used as

precedent except in the limited area of equitable estoppel, a

doctrine which requires that each case be examined on its

special facts‘ and which has been left to the lower courts to

elaborate upon in the absence of a conflict in the circuits;

significantly, neither the parties nor the Court of Appeals

has relied upon any opinion of the Supreme Court in

discussing the estoppel point.

Therefore, questions 3 and 4 of the Petitioner’s “‘Ques-

tions Presented’’ are not important federal questions

calling for review here. °

* As quoted above, the Court of Appeals did cite Rule 16 and case

law (the use of which were not challenged by either the dissenting judge

or the Petitioner here) to support the point that the plaintiff's pretrial

statement of issues was a binding reaffirmation of the same position

taken by plaintiff some six years earlier in his complaint.

* Scarano v. Central R. Co. of N.J., 203 F.2d 510, $13 (3d Cir. 1953);

Galt v. Phoenix Indemnity Co., 120 F.2d 723, 726 (D.C. Cir. 1941);

Scott County Ark. v. Advance-Rumley Thresher Co., 288 F. 739, 7SO0

(8th Cir. 1923).

* Moreover, the case was decided correctly on the estoppel grounds,

for the reasons stated in the opinion of the Court of Appeals (see

Petition, Appendix C, pp. 40a-49a).

fes

CONCLUSION

The Petition for Writ of Certiorari should be denied with

respect to Questions Presented 1 and 2, because those

questions were not timely argued before the Court of Ap-

peals. Further, upon the merits, the Petition should be

denied with respect to all Questions Presented, because the

decision of the Court of Appeals in this case does not

present any important federal question which should be

settled by this Court, and that decision is not in conflict

with any decision of this Court or with any decision of

another circuit court.

Respectfully submitted,

THOMAS N. Dowp

DAVID S. BLACK

J. LAURENT SCHARFF

NORMAN L. BULE

PIERSON, BALL & DOWD

1000 Ring Building

Washington, D.C. 20036

Attorneys for Respondent

Netherlands Mead, N.V.

September 1975