Opposition Brief — Minor v. Texas

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No. 95-885 5

' ERK

i eneatiaie a,

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1995

EDWARD H. MINOR,

Petitioner,

STATE OF TEXAS, et al.,

Respondents

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

BRIEF FOR ALLSTATE INSURANCE

COMPANY, ef al. INOPPOSITION

DENNIS N. RYAN*

ROBERT B. WEATHERSBY

ANDREWS & KURTH L.L.P

4400 Thanksgiving Tower

Dallas, Texas 7520]

(214) 979-4400

{iforneys for Respondents

(listed on inside cover)

*Counsel of Record

QUESTIONS PRESENTED

Whether the Circuit Court of Appeals properly

dismissed this action for lack of subject matter

jurisdiction.

Whether the Petitioner’s action was properly dismissed

for failure to state a claim upon which relief could be

granted.

LIST OF PARTIES AND NAMES

OF AFFILIATED CORPORATIONS

The following individual is the Petitioner and

Plaintiff/ Appellant below:

l.

Edwin H. Minor

The following individuals and parties are the

Respondents and Defendants/Appellees below:

l.

%

Ww

State of Texas

District Judge, Pat McDowell

Personally and as Presiding Judge, First

Administrative Judicial Region

Dallas County

County Judge Robert E. Day Personally

and as Dallas County Judge

Allstate Insurance Company

Allstate Property and Casualty Company

Allstate Texas Lloyd’s Insurance

Company, Inc.

Wayne E. Hedien

Raymond H. Kiefer

David B. Winn

Gary E. Briggs

Jane Elliott

A. J. Belohlavy

14 Fisk & Fielder, P.C

15 R. Lynn Fielder

16. Jeff D. Fudge

Under Supreme Court Rule 29.1, the following is a list

naming all parent companies and subsidiaries of each company

represented:

Allstate Insurance Company

parent(s): Allstate Corporation

subsidiary(s):

(i) After Six Holding Corporation

(ii) Cardiologic Systems, Inc.

(ii1) Fallowfield Developers Limited

Partnership

(iv) Quantitative Data Systems, L.P.

(v) Sanguine/A Anadarko, Ltd.

(vi) Saugutuck I] Cellular

Investment Corp.

(vii) Science Center Associates

(viii) Scripps Center Associates

(ix) Washington Business Park

Associates

(x) Gainey Ranch Financial

(xi) | HNG Storage Co.

(xii) Heard Energy Corp.

(xu) Propane Continental

ii}

parent(s): Allstate Insurance Company

subsidiary(s): None

Company, Inc.

parent(s): Allstate Insurance Company

subsidiary(s): None

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED

LIST OF PARTIES AND NAMES OF

AFFILIATED CORPORATIONS i

TABLE OF AUTHORITIES vii

OPINIONS BELOW

STATEMENT OF THE CASE

REASONS FOR DENYING THE WRIT

P. 12(bM6) ...

. M S42 U.S.C. § 198] cl:

W vely _post-

_ - 9 lu

d Minor had no § 1981] claims against

CONCLUSION

vl

“9

j

TABLE OF AUTHORITIES

CASES Page

403 U.S. 388 (1971) .............. saa Tere

District of Columbia Court of Appeals v. Feldman.

460 U.S. 462 (1983) ............ ayery i a

-_

GASH Assoc, v, Village of Rosemont. III..

995 F.2d 726 (7th Cir. 1993) ...... |

55 F.3d 87 (2d Cir. 1995) 3

786 F.2d 688 (Sth Cir. 1986) .......... 4-5

Houston Chronicle Publishing Co. v. Stewart.

668 S.W.2d 727 (Tex. App.--Houston [1st Dist.]

1983, writ dismd) ... Dieewd aac etaae sly X

114S. Ct. 2647 (1994)

, . Qn . " >

Keene Corp. v. Cass,

908 F.2d 293 (8th Cir. 1990) 4

909 F.2d 15 (ist Cir. 1990) ...... veaes 4

15 F.3d 729 (7th Cir.), ont teaiel

115 S. Ct. 62 (1994) ............... Atel: 4

Vii

Landgraf v. USI Film Prods.,

114S. Ct. 1483 (1994) 0... cece cece cece eee 7

: 18 F.3d 315 (5th Cir.), cert. denied,

BESO, Ch FIV ova cc nce ctcccccccveccceses 4

a Ce SEC (nn noc cc cc cc ccc ecceses: i

— F.2d 740 (7th Cir. 1985) .......-.0-c0ec000e. g

| 490 a (1989) ... oe cccccccececeeeeeeeees 5

491 U.S. 164 (1989) _ Opto Sere Te 6,7

_~ US. 1(1987) ....cccccccceceeeceececeecee: 3

, nesiey Pelion Benevel :

973 F.2d 169 (3d Cir. 1992) .......2.2-2005. 364

457 US. 830 SS ac, orauhiy yea teaa eaves §

263 = re (1923) ..-ccecccceecceeeeeeeeee: 2,3

| 517 F.2d 1141 (4th Cir. = ee eee g

Vili

United Bhd. of C Uoiners of ;

463 U.S. 825 (1983) ...0 0. eee ee ccc e cece eee ee 7

Yazoo County Indus. Dev. Corp. v. Suthoff,

ee aero e 5

STATUTES AND RULES

Fed. R. Civ. P. 12(b)(6) .. 0... cc ccc e ec ee. 2,5

UB OUN cooi eek rnvsdceeeee 5,6

eS Ee penn Ranma aie Me all 9

ix

OPINIONS BELOW

The Fifth Circuit’s decision was based on the district

court’s lack of subject matter jurisdiction over the action as

well as the Petitioner’s failure to state a claim for relief upon

which relief could be granted under Fed. R. Civ. P. 12(b)(6).

(App. at 1-4, 15-20).

For the sake of brevity, Allstate has not included an appendix to

this brief but instead will rely upon the appendix accompanying the

Petitioner’s petition and will reference its pertinent portions, as well as the

relevant portions of the petition, as follows: App. at__; Petitionat__.

xX

No. 95-885

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1995

EDWARD H. MINOR,

Petitioner,

Vv.

STATE OF TEXAS, et al.,

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

BRIEF FOR ALLSTATE INSURANCE

COMPANY, et al. IN OPPOSITION

Respondents Allstate Insurance Company, Allstate

Property and Casualty Company, Allstate Texas Lloyd’s

Insurance Company, Inc., Wayne E. Hedien, Raymond H.

Kiefer, David B. Winn, Gary E. Briggs, Jane Elliott, and A. J.

Belohlavy (collectively, “Allstate”) respectfully request that

this Court deny the petition for writ of certiorari, seeking

review of the decision of the United States Court of Appeals for

the Fifth Circuit in this action.

STATEMENT OF THE CASE

Petitioner Edward H. Minor (“Minor”) was an insured

of Allstate under a homeowner’s policy. (Petition at 4).

Allstate refused to settle Minor’s claim for an alleged loss

under the policy due to his repeated refusal to submit to an

examination under oath covering his alleged loss. (App. at 26-

27). As a result, Minor brought suit in Texas state court on

June 30, 1992 against Allstate. This action was abated by the

state court because of Minor’s failure to comply with the

contractual provision in his homeowner’s policy providing for

an examination under oath. Minor then filed suit on May 3,

1993 in federal district court for alleged misconduct and civil

rights violations by every defendant, opposing attorney, or

judge in his abated state court action. (App. at 21-50).

The district court dismissed Minor’s claims against all

of the defendants/respondents for failure to state any

actionable claim. (App. at 1-14). On appeal, the Court of

Appeals for the Fifth Circuit held that if the district court had

had jurisdiction, all of the grounds for dismissal under Fed. R.

Civ. P. 12(b)(6) would have been affirmed. (App. at 8). The

Circuit Court further determined, however, that subject matter

jurisdiction was lacking under this Court’s decisions in

District of Columbia Court of Appeals v. Feldman, 460 U.S.

462 (1983) and Rooker v. Fidelity Trust Co., 263 U.S. 413

(1923) (hereinafter the “Rooker-Feldman doctrine”). (App. at

18-20). Accordingly, dismissal of Minor’s causes of action in

their entirety was affirmed.

REASONS FOR DENYING THE WRIT

The format of Minor’s petition makes it difficult to

ascertain which of his purported “Reasons for Granting the

Wnit” applies to the Allstate respondents. Nonetheless, both

of the Fifth Circuit’s stated reasons for affirming the district

court’s dismissal of Allstate--lack of subject matter

jurisdiction and failure to state a claim--were valid. Minor has

failed to allege or identify any conflict between the Fifth

Circuit’s decision and that of any other United States Court of

Appeals or state court of last resort. No important federal

question has been presented, let alone decided in a manner

adverse to relevant decisions of this Court.

: wes |

asuaiict court lacked subject matter ea pr or

Minor’s petition should be denied because the Fifth

Circuit correctly determined that the district court lacked

subject matter jurisdiction to review what had transpired in the

state court action. The court below determined that Minor’s

purported federal “civil rights” action constituted an appeal

from the Texas state court’s entry of the abatement order.

(App. at 19). The Rooker-Feldman doctrine holds that no

court of the United States other than the Supreme Court shall

entertain a proceeding to reverse or modify a final state court

judgment because the jurisdiction of the district court is

original and review of such determinations would constitute an

improper exercise of appellate jurisdiction. Feldman, 460 U.S.

at 476, 482; Rooker, 263 U.S. at 416; see also Johnson v. De

Grandy, 114 S. Ct. 2647, 2654 (1994), again acknowledging

the continuing validity of the Rooker-Feldman doctrine.”

As further interpreted, the Rooker-Feldman doctrine is

not limited to final judgments but extends to all forms of state

court actions as well. Pennzoil Co. v. Texaco, Inc., 481 U.S.

1, 23-27 (1987) (Marshall, J., concurring); Feldman, 460 U.S.

at 486 n.16.* Thus, Minor’s contention on page 9 of the

2 Of interest is a discussion of the genesis of the Rooker-Feldman

doctrine articulated in GASH Assoc, v, Village of Rosemont, Illl., 995 F.2d

726, 727-29 (7th Cir. 1993).

3 Genter v, Shulman, 55 F.3d 87, 89 (2d Cir. 1995): Port

#\

wit OUUIOTILTY OF NEC os ie

(continued...)

petition to the contrary notwithstanding, the fact that the state

court abatement order was not a final judgment is of no

consequence.

It is also beyond doubt that Minor’s claims against

Allstate are “inextricably intertwined” with the state court’s

decision granting the plea in abatement. Minor attempted to

allege a wide-ranging conspiracy to deny him his

constitutional rights between, among others, the state court

judge who granted Alistate’s plea in abatement, the State of

Texas, and Allstate. This Court has stated that when claims

such as Minor’s “are inextricably intertwined with the state

court’s denial in a judicial proceeding . . . then the district

court is in essence being called upon to review the state-court

decision. This the district court may not do.” Feldman, 460

U.S. at 486 n.16. Stated differently, Minor cannot circumvent

the Rooker-Feldman doctrine merely by casting a complaint in

the form of a civil rights action.

The Circuit Court’s decision was also consistent with

other circuit courts’ interpretation of the Rooker-Feldman

doctrine. See, ¢.g., Liedtke v. State Bar of Texas, 18 F.3d 315,

317 (Sth Cir.), cert. denied, 115 S. Ct. 271 (1994); Landers

Seed Co, v, Champaign Nat’] Bank, 15 F.3d 729, 732-33 (7th

Cir.), cert, denied, 115 S. Ct. 62 (1994); Port Authority Police

Benevolent Ass’n, Inc v. Port Authority of New York and

New Jersey Police Dep’t., 973 F.2d 169, 177-79 (3d Cir.

1992); Keene Corp. v. Cass, 908 F.2d 293, 296-97 & n.2 (8th

Cir. 1990); Hale v. Harey, 786 F.2d 688, 690-91 (Sth Cir.

3(...continued)

New Jersey Police Dep’t., 973 F.2d 169, 178-79 (3d Cir. 1992); Lancellotti

y. Fay, 909 F.2d 15, 17 (ist Cir. 1990); Keene Corp, v. Cass, 908 F.2d 293,

297 & n.2 (8th Cir. 1990); Hale v. Hamey, 786 F.2d 688, 691 (Sth Cir.

1986).

as

1986). Minor has offered no authority that the Rooker-

Feldman doctrine was improperly applied, and the Fifth

Circuit’s affirmation of the district court’s granting of

Allstate’s motion to dismiss was proper.

> Minor’s clei inst All

The Fifth Circuit also held that even if the district court

below had had subject matter jurisdiction, the dismissal would

have been required pursuant to Fed. R. Civ. P. 12(b)(6).4

Minor cannot assert a viable claim under 42 U.S.C. §

1981 against Allstate because his claims are based exclusively

on “post-formation” contractual conduct that occurred prior to

November 21, 1991. Specifically, Minor alleged that Allstate

violated § 1981 by unjustifiably denying his insurance claim.

(App. at 26-27). Allstate’s alleged acts could have occurred

only after the formation of the insurance contract between

Minor and Allstate. It is undisputed that Allstate’s refusal to

settle Minor’s insurance claim, because of his repeated failure

dismissal is proper. Yazoo County Indus. Dev. Corp. v. Suthoff. 454 U.S.

1157, 1161 (1982); see also Neitzke v. Williams, 490 U.S. 319, 327 (1989),

holding that dismissal is proper “without regard to whether [a claim] is

based on an outlandish legal theory or on a close but ultimately unavailing

one.”

to appear for an examination under oath, occurred in 1990.

(App. at 26-34). Such “post-formation” contractual acts, as

alleged by Minor, do not constitute actionable conduct under

§ 1981 as a matter of law under this Court’s decision in

Patterson v. McLean Credit Union, 491 U.S. 164 (1989),

which held that the protection afforded by § 1981 extended

only to the formation of contracts. The Court rejected any

right under § 1981 to “enforce” contracts. Section 1981

merely guarantees access to legal process in contractual

disputes. The statutory guarantee is irrelevant to post-

formation claims of interference with contractual rights.

Patterson, 491 U.S. at 176-78.°

Section 1981 as amended states as follows:

(a) All persons within the jurisdiction of the United States shall have

the same right in every State and Territory to make and enforce contracts,

to sue, be parties, give evidence, and to the full and equal benefit of all

laws and proceedings for the security of persons and property as is

enjoyed by white citizens, and shall be subject to like punishment, pains,

penalties, taxes, licenses, and exactions of every kind, and to no other.

(b) For purposes of this section, the term “make and enforce

contracts” includes the making, performance, modification, and

termination of contracts, and the enjoyment of all benefits, privileges,

terms, and conditions of the contractual relationship.

(c) The rights protected by this section are protected against

impairment by nongovernmental! discrimination and impairment under

color of State law.

42 U.S.C. § 1981. Subsections (b) and (c) of § 1981 were added by the

Civil Rights Act of 1991, which became effective on November 21, 1991.

As Amended Pub. L. 102-106, Title I, § 101, November 21, 1991, 105 Stat.

1071.

The Court recently affirmed that the 1991 amendments

to § 1981, which now bring post-formation actions within the

ambit of § 1981, do not apply retroactively. McKnight v. Gen.

Motors Corp., 114 S. Ct. 1826 (1994); Landgraf v. USI Film

Prods., 114 S. Ct. 1483, 1506, 1508 (1994). As noted, the

effective date of the 1991 amendments to § 1981 is November

21,1991. Accordingly, the Patterson decision and its progeny

bar Minor’s § 1981 claims against Allstate because all of the

conduct complained of against Allstate occurred in 1990, prior

to the amendments’ effective date.

b. Minor’s pro se status was not a basis for a “class-

Minor also erroneously intimates that an alleged

discrimination against a pro se litigant somehow qualifies as

“class-based” discrimination. (Petition at 11-1 7). This type of

allegation does not constitute a cognizable claim of class-

based discrimination.

See generally United Bhd. of Carpenters

and Joiners of Am. v. Scott, 463 U.S. 825, 837-38 (1983).

c. Minarhed eo ciel inst All fox violet

the Fifth, Sixth, and F hA

he United S Fadia

To the extent that Minor claimed violations of the

Fifth, Sixth, and Fourteenth Amendments to the United States

Constitution against Allstate, they too were properly dismissed

because Minor failed to sufficiently allege (nor could he have

alleged) that the Allstate defendants were federal officials or

that they acted under the authority of federal law. See, ¢.g.,

v, Si , 403 U.S. 388, 389-90,

395-97 (1971).

Minor’s further claim of an implied right of action

under the Fifth, Sixth, and Fourteenth Amendments was also

7

properly dismissed. Minor failed to allege (nor could he) that

the Allstate defendants acted under the color of state law. See

generally Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982).

pepe en eg mae Hedien. Kief | Winn.

Finally, Minor sued Respondents Hedien, Kiefer, and

Winn individually as “officers . . . of the [Allstate] insurance

companies.” (App. at 24). Minor, however, made no

allegations whatsoever of specific actionable conduct against

them in his complaint, and vicarious liability cannot be

imposed on the individual officers of a company in their

individual capacities absent allegations that they themselves

participated in the alleged discrimination. Musikiwamba v.

ESSL Inc., 760 F.2d 740, 753-54 (7th Cir. 1985); Tillman v.

Wheaton-Haven Recreation Ass’n, Inc., 517 F.2d 1141, 1144

(4th Cir. 1975).°

CONCLUSION

Minor’s allegations of “conspiracy” among every

individual defendant, corporate defendant, state government

defendant, and/or judicial defendant are related solely to his

own refusal to abide by the terms of the insurance contract.

‘ Refusing to honor his contractual obligations, and unwilling to

accept or abide by the rulings of every judge to have heard his

case, Minor contends that the only possible explanation for the

abatement is a wide-ranging conspiracy cutting across all

levels of the state and federal judiciary. As aptly stated by the

trial court, Minor’s “allegations against the private [Allstate]

. Texas law holds that a corporate officer "cannot be held personally

liable merely by reason of his corporate office." Houston Chronicle

Publishing Co. v, Stewart, 668 S.W.2d 727, 730 (Tex. App.--Houston [Ist

Dist.] 1983, writ dism’d).

defendants are whole [sic] conclusory, having no basis save

for Plaintiff's imagination.” (App. at 4). Minor is attempting

to re-litigate in federal court claims that were correcily

disposed of through the state court abatement order.

There are no “special or important reasons” why

Minor’s petition for a writ of certiorari should be granted.

Sup. Ct. R. 10. To the contrary, an unbroken chain of

authority supports the Circuit Court’s decision in this case, and

nothing in Minor’s petition hints at any legitimate reason for

further consideration. For all of the reasons discussed above,

Allstate respectfully requests that Minor’s petition be denied.

Respectfully submitted,

Dennis N. Ryan (Counsel of Record)

Robert B. Weathersby

ANDREWS & KURTH L.L.P.

4400 Thanksgiving Tower

1601 Elm Street

Dallas, Texas 75201

Phone: (214) 979-4400

Fax: (214) 979-4401

Attorneys for Respondents Allstate Insurance Company,

Allstate Property and Casualty Company, Allstate Texas

Lloyd's Insurance Company, Inc., Wayne E. Hedien, Raymond

H. Kiefer, David B. Winn, Gary E. Briggs, Jane Elliot and A.J

Belohlavy