Petition for Writ of Certiorari — Dunmeyer v. Becton, Dickinson & Co.
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OFFIUEOFTHE-CLERK
IN THE Z
Supreme Court of the United States
October Term, 1995
>
No
HERBERT W. DUNMEYER, KERRY T. FURUTA, JULIE ENDER
JACKSON, GARY L. JOHNSON, TERRY B. KARCH, DAVID K.
KENTALA, BRUCE A. PERRET, ERNEST R. PROCALO,
RICHARD A. FORSTER, GARY C. JONES, RAY A. ORAVETZ,
ROBERT M. PECKELS, JR., JERE C. WHITE, JAMES D.
WILLIAMS, JOSEPH B. ZUCHT, II,
Joint Petitioners
VS.
BECTON, DICKINSON and COMPANY,
a foreign corporation,
Respondent
°
On Petition For a Writ Of Certiorari To The United States Court
Of Appeals For The Ninth Circuit
$
JOINT PETITION FOR WRIT OF CERTIORARI
James M. Thomas
(Counsel of Record)
Weiss, Jensen, Ellis & Howard
2600 Pike Tower, 520 Pike Street
Seattle, WA 98101
(206) 340-1825
Attorneys for Joint Appellants
Dunmeyer, Furuta, Jackson, Johnson, Karch,
Kentala, Perret, Procalo, Forster, Jones,
Oravetz, Peckels, White, Williams, Zucht
aBCD Legal Printers. Seattle. Washington
QUESTIONS PRESENTE‘?
1. Does requiring the filing of a second Nowee of Appeal by
Class Members appealing the denial of ‘heir request for
intervention, if they were to avoid losing their tight to review
of the trial sourt’s class decertification «wd other orders
specifically set out in their duly filed initial Notice of Appeal
and motion in the Ninth Circuit, conflict with FRAP 3 and 4,
and the sufficiency of the "notice afforded" holdings of this
Court?
2. Does the decertification of an FRCP 23 multi-state class
three months prior to trial by a California federal district
court on manageability grounds, due to differences in some
class members’ residence states’ laws with those of
Calivornia, conflict with the constitutional application of one
state’s laws in multi-state class actions approved in Sun Oil
Co. v. Wortman, 486 U.S. 717, 729 (1988) and Phillips
Petroleum Co. v. Shutts, 472 U.S. 797, 822-23 (1985), where
the other states’ laws do not mandate a result different than
would be obtainable in the state in question?
3. During the pendency of former Class Members’ appeal of
the rejection of their request for intervention and the
decertification of the Class, may a trial court vacate
stipulations and three partial summary judgment rulings in the
former Class Members’ favor while entering a stipulated
dismissal ef the former class representative’s case, when
those appealing Class Members were no longer before the
trial court, without violating Due Process and running afoul
of U.S. Bancorp Mortgage Co. v. Bonner Mall Partnershi>
poems $” * , 115 S.Ct. 386, 392-93 (1994)?
4. Can intervenors, whose rights were established as a matter
of law by the granting of three partial summary judgments in
their favor while Class Members, be denied intervention
under Federal Rule of Civil Procedure 24(a) after the class
was decertified on manageability grounds, if requiring each
of them to file their own separate suit would as a practical
matter impede their enforcement of those rights?
TABLE OF CONTENTS
Page
Questions Proshited 3555 360 O00 lb. Hee ea i
SO OF AMINES oe ee ee ili
Opinions Bebow (56.):35i. 2, 14 Joi aint. l
Jurisdictional Statement ................-55.. 2
Constitutional Provisions and Court Rules ........ 2
pistement of the Case 2...) 2h 2 ee 3
Reasons for Granting the Writ ................ 10
I. Appellate Review Should Include All . 10
Orders Where Review Requested
IT. Application of California Law to .... 15
Multi-State FRCP 23 Class Constitutional
and Proper
ITT. Permitting Vacatur of Adverse ..... 19
Judgments Perverts Judicial Decisions
Into Negotiable Commodities
[V. Intervention Prevents Impeding... .. . 23
Enforcement of Rights and Conserves
Judicial and Litigants’ Resources
Conchasion 02. 2025 JEG oe 27
ill
TABLE OF AUTHORITIES
Case Law
Allstate Insurance Company v. Hague, 449 U.S.
Sees eae BOE Ge Oot, MOL TADOLD Sc cee 18
Anderson v. Liberty Lobby. Inc., 477 U.S. 242,
ee RO ee Re ee, SOO IGM) 2 oe eke eee ese 16
Benavides v. Jackson National Life Insurance Co..
820 F. Supp. 1284, 1288-89
CS ee ed oh. ees ae ae
Blake v. Pallan, 554 F.2d 947 (9th Cir. 1977) ...... 26
Brotherhood of Railroad Trainmen v. Baltimore &
Ohio Railroad Co., 331 U.S. 519, 524, 67 S. Ct.
Ss GEE ar ie Bt Fea een ee a Se 12, 14
Calcasieu Marine National Bank v. Grant, 943 F.2d
nr ROP eo sce ee oe 13
Cascade Natural Gas Corporation v. El] Paso
Natural Gas Company, 386 U.S. 129, 134, 87
eR ks I a 24
Crazy Eddie Securities Litigation, 135 F.R.D. 39, 41
I tc eS Pee a | 18
Deposit Guarantee National Bank v. Roper, 445
U.S. 326, 339, 100 S. Ct. 1166, 1174 (1980) ....... 23
Diaz v. Southern Drilling Corporation, 427 F.2d
1118, 1125 (Sth Cir. 1970), cert. denied 406 U.S.
ee eee ees 25
iV
Erie R.R. Co. v. Board of Pub. Util. Comm’rs,
9 NIL. ST, FB Ack See Glin ec cee 24
FirsTier Mortgage Company v. Investors
Mortgage Insurance Company, 498 U.S. 269,
275-77, supra at 276, 111 S. Ct. 648,
659.55 SIGGED Aes eas oN PES ieee 11, 12, 14
Fort Gratiot v. Michigan Dept. of
Natural Resources, 71 F.3d 1197, 1203
I a hip 0a O'S ele dere nie Eien o voce Ska 0c 20
Griggs v. Provident Consumer
Discount Company, 459 U.S. 56, 58, 103
FSi. ts ee err aa eee ee 20
Gruber v. Price Waterhouse, 117 F.R.D. 75,
Ef: $B 3: ee ree ee ee 18
Harmsen v. Smith, 693 F.2d 932 (9th Cir. 1982),
cert. denied 464 U.S. 822, 104 S. Ct. 89 (1983) ..... 18
Keeler v. Green, 21 N.J. Eq. 27, 30
(6 CE. Geen) OS. Ce BR asd oe 6 lee bees 25
Liddell v. Board of Education of
City of St. Louis, 73 F.3d 819, 822-23
CO Ce: FR did ne th bad OPA es OA 20
Lillig v. Becton Dickinson, 105 Wn.2d 653,
Pls Fee 187k REE: 6 00 66 oe Ree Ee OTA 6
Maywalt v. Parker & Parsley Petroleum Co.,
147 F.BRD. Si, Cae eee died nke’s COR es 18
McCowan v. Sears Roebuck & Co., 908
F.2d 1099; LEG6 Cae Ge: WR) oi os SN ed 12
Vv
MDC Holdings Securities Litigation, 754 F.Supp. 785
(B.D. Cal, 1990). ..6 HERG ARGUE ORS he an hi 18
Natural Resources Defense Council v. Costle,
561 F.2d 904, 909-11 (D.C. Circuit 1977) ......... 26
New York Cent. R.R. Co. v. General Motors Corp.,
182 F.Supp. 273, 286 (N.D. Ohio 1960) .......... 24
Nuesse v. Camp, 385 F.2d 694, 700
(OC; Cent 1967)... bebe ae ei ew es bas 26
Phillips Petroleum Company v. Shutts,
472 U.S. 797, 816, 105 S. Ct. 2965 (1985) ..... 15, 16
Pizza Time Theaters Securities Litigation, 112
PRD. 15 GLE Cai TRG) oc ccc ecco cee. 18
Richards v. State, 63 Ga.App. 290,
41 SED OP, SO CG oo ks ce eS ews oes eh 24
Roberts v. Heim, 670 F.Supp. 1466 (N.D. Cal. 1987) . 18
Seagate Technologies Securities Litigation, 115 F.R.D. 264
jae Ra eae eee a ee ore ee 18
Shutts v. Phillips Petroleum Company, 240 Kan.
764, 732 P.2d 1286, 1312-13 (1987),
cert. denied 487 U.S. 1223, 108
SC Ch See Ae. Ki cede sceeve tale d chai 17
Smith v. Barry, 502 U.S. 244, 247-49, 112 S. Ct.
vy, Mt Re gS.) ees ema era are er eee 10, 11, 14
Sollenbarger v. Mountain States Teleph. & Teleg. Co., 121
F.R.D. 417, 427-28 (D.N.M. 1988) .....--ceeeees 18
v1
Stewart v. Baldwin County Board of Education,
908 F.2d 1499, 1509 (11th Cir. 1990) ............ 12
Sun Oil Co. v. Wortman, 486 U.S. 717,
CO A EET AEE PCO a eta ls ee Ce ee Be 15
Transamerican Freight Lines v.
Brada Miller Freight Systems, 423 U.S. 28,
Si Fee a A I hc cee edaeaes 14
United Airlines, Inc. v. McDonald,
SSE Ue Sede OF BD CR BOO UESTE) cc ci cutwnvunn 22
U.S. Bancorp Mortgage Co. v.
Bonner Mall Partnership, U.S. _,
115 S. Ct. 386, supra, 392-94 (1994) .......... 21, 22
Statutes and Court Rules
USC 8 BE SK a 8. a eee ae 3
UBL. FDS os oka i siloaicss cw 2
at Tag | GAR Wt cee eete ate 3, 12
28. U.S.C. $6 £331, 1332 and 1967 665i 6. 5.85. 3
1S US0:6 (Gs bcs ci a 2 3
£0 UBS Bete & Ss ra Pee eee eee 10, 14
Vii
Statutes and Court Rules (continued)
Pe ee eee s Was Ba Oe a 3, 10, 11, 13, 14
PE Ele) Nad bia bo, ciate bi & w hele bh 5, 33, 33.34
POE oe 6a Fs CR Ca oie ee eee
PO ae ae $2 Var Ret we SERS Se Ss 15, 18, 19
PTS. O56 tie tsk o mba A 0 OAV ES oh as CET 23
Other Authorities
Comment, False Conflicts, 55 Cal. L. Rev.
Fee ae BE oe ie oe 16
D. Knibb, Federal Court of Appeals Manual,
De en ees 12
R. Leflar, American Conflicts Law, § 93, p. 188
GE REGS ay ae nel ae 16
Ulrich, Thompson and Kessler,
Federal Appellate Practice Guide -
Ninth Circuit, §5.38 at page 5-52 (1994) .......... 20
In The
Supreme Court of the United States
October Term, 1995
S
HERBERT W. DUNMEYER, KERRY T. FURUTA,
JULIE ENDER JACKSON, GARY L. JOHNSON,
TERRY B. KARCH, DAVID K. KENTALA, BRUCE A.
PERRET, ERNEST R. PROCALO, RICHARD A.
FORSTER, GARY C. JONES, RAY A. ORAVETZ,
ROBERT M. PECKELS, JR., JERE C. WHITE,
JAMES D. WILLIAMS, JOSEPH B. ZUCHT, I,
Joint Petitioners
VS.
BECTON, DICKINSON and COMPANY, a foreign
corporation,
Respondent.
*
JOINT PETITION FOR A WRIT OF CERTIORARI
OPINIONS BELOW
The Memorandum of the Ninth Circuit Court of Appeals
filed January 19, 1996, and the Order of the Ninth Circuit
filed March 6, 1996, denying the petition for rehearing and
rejecting the suggestion for rehearing en banc, were not
2
published, but are reproduced in Appendix A to this Petition
at pages A-1 and A-3, respectively. The underlying Joint
Notice of Appeal filed June 7, 1994, and the Joint
Appellants’ FRAP 27 Motion to Expand Review of Trial
Court’s Orders filed October 14, 1994, are reproduced in
Appendix B at B-1 and B-5, respectively.
JURISDICTIONAL STATEMENT
The Memorandum and Judgment of the Ninth Circuit
Court of Appeals was entered on January 19, 1996. The
Order of the Ninth Circuit denying the petition for rehearing
and rejecting the suggestion for rehearing en banc was filed
March 6, 1996. This Joint Petition for a Writ of Certiorari
was filed within ninety (90) days of the date of the denial of
that motion for rehearing. The jurisdiction of this Court
rests on 28 U.S.C. § 1254(1).
CONSTITUTIONAL PROVISIONS AND COURT RULES
United States Constitution - Fifth Amendment
No person shall be heid to answer for a Capital, or
otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury, except in cases arising in the
land or naval forces, or in the Militia, when in actual service
in time of War or public danger; nor shall any person be
subject for the same offence to be twice put in jeopardy of
life or limb; nor shall be compelled in any criminal case to
EC'S;
3
be a witness against himself, nor be deprived of life, liberty,
or property, without due process of law; nor shall private
property be taken for public use, without just compensation.
Federal Rules of Appellate Procedure
Rule 3 (See Appendix D-1)
Rule 4 (See Appendix D-2)
Rule 27 (See Appendix D-6)
Federal Rules of Civil Procedure
Rule 23 (See Appendix D-6)
Ruic 24 (See Appendix D-11)
STATEMENT OF THE CASE
Federal Jurisdiction
At the time the Complaint against Becton, Dickinson
& Company (hereinafter "BD") was filed ir August, 1988,
and when the class was initially certified in June, 1990,
federal question and diversity jurisdiction attached in the
District Court by virtue of 28 U.S.C. §§ 1331, 1332 and
1367, and 18 U.S.C. § 1961.
The Ninth Circuit Court of Appeals obtained
jurisdiction with the filing of the Notice of Joint Appeal on
June 7, 1994, and with the October 14, 1994 filing of the
FRAP 27 Motion to Expand Review of the Trial Court’s
Orders, pursuant to 28 U.S.C. § 1291, pendent appellate
jurisdiction, and FRAP 3 and 4.
Factual Background
BD, one of the largest if not the largest medical
supply corporation in the world, has its principal place of
business in New Jersey. (CR 429 at 2.) During 1978 -
1981 BD’s B-D Division divided the country into 12 sales
regions, with 6 of those regions, encompassing 32 states,
being managed by a Western Area Sales Manager
headquartered in California. (CR 166 at 2; CR 429 at 2-3.)
David M. Koepke, the former class representative, the Joint
Petitioners here, and Michael E. Lillig, were amongst the
approximately 200 field sales representatives (hereafter
"FSReps") nationwide in BD’s B-D Division during 1978 -
1981. Mr. Koepke, along with Mr. Lillig and petitioners
Dunmeyer, Jackson, Karch, Kentala, and Perret were in
Region 9, while petitioners Furuta, Johnson, and Procalo
were in Region 5. The headquarters for both Regions 5 and
9 were located in the state of California. (CR 166 at 2.)
In order to encourage its FSReps in the years 1978 -
1981 to expend extra efforts beyond those necessary to earn
their base monthly salary, BD management mailed each
FSRep, nationally, incentive compensation plans ("Plans"),
and promised to pay the FSReps a year-end bonus pursuant
to the mathematical calculation (CR 30 at Exh. C-1) in these
Plans, specifically "4.5%" of regional and national bonus
pools that would "accrue" for their benefit, once prior year
I i ai
RAY 0 2 tet
5
sales figures and national predicted sales figures ("Budget")
were exceeded (CR 662 at Exh. 13, ¢ 2.2, 2.4; CR 657 at
Exhs. 51, 52, 56 at ¢ 2a, 4). According to BD management
personnel, that "4.5%" specifically described in the Plan to
be paid into the "accrued" FSRep pools "was never reduced"
(CR 769 at 53), and was "constant . . . A fixec percentage."
(CR 663 at Exh. 73, pp. 4-5 44 17(a), 18(b)). Completely
separate management incentive compensation plans were
mailed out at the same time to the district, regional and area
sales managers, although the FSReps were never apprised of
the terms of those plans other than being told that
management bonuses were paid out of a totally different poo!
than the FSRep’s bonus pool. (CR 620 at 11; CR 769 at 29-
31; CR 646 at 11.)
In 1978-1981, contrary to what BD promised its
FSRep’s, and unbeknownst to the FSReps, BD wrongfully
took monies out of all the accrued FSReps bonus pools
converted funds from those pools, and used those monies to
pay management bonuses, knowing all the while management
was not eligible for monies from those FSRep pools (CR
333/RT at 13-15; CR 659 at 113-15; CR 657 at Exhs. 61,
65; CR 658 at Exh. 94; CR 662 at Exh. 44), and saving the
corporation hundreds of thousands of dollars. BD
continually refused to acknowledge its obligations to its
FSReps even though the enforceability of the Plan and
6
breach of the Plan were established as a matter of law in a
Washington state court action (reported at Lillig vy. Becton
Dickinson, 105 Wn.2d 653, 717 P.2d 1371 (1986)) in 1981.
and again in this matter in 1989 and 1990. (CR 30 at Exh.
C-1; CR 290 at Exh. 1, Instr. 9; Appendix C-1, C-5) The
FSRep’s were never told (1) their "accrued" pools had been
depleted to pay management bonuses, (2) that they had been
paid less than what they were owed, nor (3) that they had
not been paid the specific amount of their “accrued” pool
that BD itself had calculated they had earned. (CR 685.
Exh. 2 at pp. 172-73.)
To mask its covert skimming of the FSReps
"accrued" pools, BD warned its FSReps not to discuss their
individual sales figures or bonuses with other FSReps (CR
791), and made certain it alone had access to and sole
control of all of the information and sales figures necessary
to utilize the Plans’ mathematically calculated compensation
formulas. (CR 659 at 66; CR 661 at 27; CR 568 at 8-11.
19.) Then, even when an FSRep on occasion risked
reprimand and asked how the year-end bonus figure was
arrived at, BD management flippantly responded vaguely that
the lower than anticipated number was due to "something in
the taxes," (CR 646 at 18-21) or again warned of stern
consequences if too many questions were asked. (CR 634 at
25-26.)
Procedural Background
In August 1988, after having learned in 1987 of BD’s
wrongful acts, Mr. Koepke filed his federal question (RICO)
and diversity class action. The initial certification of the
class occurred in June 1990. (CR 879/RT at 10-12: CR
161.) Following an assessment of over $27,000 in terms
against BD for discovery abuses (CR 211 at 1, 3), additional
orders were entered modifying and expanding the class in
1991 to proceed on a national basis (CR 220; CR 251).'
Partial summary judgments entered against BD established
under California law that the 1979 Plan was an enforceable
contract, that it was breached by BD, and that BD was guilty
of conversion when it took "accrued" funds from the FSReps
pool to pay management bonuses (See Appendix C-1, C-5,
C-13). Trial was eventually scheduled to commence
December 6, 1993 (CR 499). The class was ultimately
decertified (Appendix C-16), with the trial court refusing to
reconsider its decision (Appendix C-18), and refusing to
recertify any proposed alternative class (Appendix C-22).
The petitioners Dunmeyer, Furuta, Jackson, Johnson, Karch.
' The complaint setting out the assertions of the certified national class
contained the 200 FSReps claims for damages arising out of BD’s breach of
contract, negligence, breach of the covenant of good faith and fair dealing, RICO
violations, bad faith denial of the existence of a contract, breach of fiduciary duty,
labor code violations, conversion, fraudulent inducement, and fraud. (CR 242)
8
Kentala, Perrett and Procalo’s (hereinafter "the Dunmeyer
petitioners") motions to intervene were denied on May 11,
1994 (Appendix C-25).
On June 7, 1994, the Dunmeyer petitioners requested
that the Ninth Circuit (a) review the May 11, 1994 order
denying their motions to intervene, and (b) review five other
specific orders (entered August 18, 1993, September 20,
1993 and January 18, 1994) pertaining to the class they had
been members of before its decertification. All those
specific orders were listed in the June 7, 1994 Notice of
Joint Appeal. See Appendix B-1. On that same day, and in
the same Notice of Joint Appeal, petitioners Forster, Jones,
Oravetz, Peckels, White, Williams and Zucht (hereinafter
"the Forster petitioners"), jointly appealed a) the May 11,
1994 denial of their request to be designated class
representatives for the purposes of appealing the rulings
adverse to the class, and b) those same five adverse rulings
pertaining to the class.
On September 16, 1994, Commissioner Shaw of the
Ninth Circuit granted BD’s Motion to Dismiss Appeals from
the August 18, 1993, September 20, 1993, and January 18,
1994 trial court orders. See Appendix A-11. The
Dunmeyer and Forster petitioners were allowed, however, to
pursue their respective appeals of the trial court’s May 11,
1994 orders before the Ninth Circuit.
ee ee os
9
On October 14, 1994, 21 days after former class
representative Koepke’s settlement and the trial court’s
dismissal of his action on September 23, 1994, the
Dunmeyer and Forster joint petitioners, pursuant to FRAP
27, served and filed their Motion to Expand Review of the
Trial Court’s Orders in the Ninth Circuit to reinstate review
of the August 18, 1993, September 20, 1993, and January
18, 1994 Orders dismissed by Commissioner Shaw, and in
addition requested review of the September 23, 1994 trial
court order entered post-appeal, and in their and their
counsel’s absence (Appendix C-30, C-35, C-37), that vacated
stipulations and partial summary judgment orders in their
favor relied upon in their appeals. All of those orders were
specifically listed in that October 14, 1994 motion, with the
particular relief sought requesting the Ninth Circuit "to
include” in its review each one of those orders. See
Appendix B-9. The Ninth Circuit denied that Motion to
Expand Review without prejudice on December 21, 1994,
with leave to renew that motion in the opening brief. See
Appendix A-10.
On January 19, 1996, the Ninth Circuit affirmed the
trial court’s denial of the Dunmeyer intervenors’ motion for
intervention and its refusal to designate the Forster
intervenors class representatives for the purposes of appeal.
See Appendix A-3. The Court did not rule on the Dunmeyer
10
and Forster intervenors’ renewed motion for expanded
review (See Brief of Joint Appellants, filed in the Ninth
Circuit May 9, 1995, at p. 19-21), yet ruled it did not have
jurisdiction to consider the other orders specifically listed in
the June 1994 Notice of Joint Appeal and the October 1994
FRAP 27 Motion to the Ninth Circuit. On March 6, 1996,
the Ninth Circuit denied the petition for rehearing and
rejected the suggestion for rehearing en banc. See Appendix
A-1.
REASON FOR GRANTING THE WRIT
I. Appellate Review Should Include All Orders
Where Review Requested
First, it was the intention of Congress (28 U.S.C. §
2072) and this Court in promulgating the Federal Rules of
Appellate Procedure ("FRAP") to set out an integrated set of
rules that would be uniformly applied throughout the
circuits. Interpreting or applying these rules so as to give
effect to some but not to others, or applying them
inconsistently, jeopardizes the predictable, harmonious
operation of eleven circuit courts anticipated by this Court.
Second, substance, not form, is the central focus of
an appeal under the FRAP from rulings of a federal district
court. With specific regard to FRAP 3, this Court has ruled
that "[cjourts will," not may at their discretion, construe the
requirements of Rule 3 "liberally." Smith v. Barry, 502
BA tert tne eating sid apa
oe Se ce ee
11
U.S. 244, 248, 112 S. Ct. 678, 681 (1992).
A notice of appeal under Rules 3 and 4, as
promulgated by this Court, serves the straightforward
function of giving notice to an opposing party, within a
specific time frame, of "the party or parties taking the
appeal,” the particular "judgment, order or part thereof
appealed from,” and specifically designates "the court to
which the appeal is taken." Smith v. Barry, supra at 247-
48, 112 S. Ct. at 681. Any document or "paper" that serves
that function within that set time frame satisfies FRAP 3 and
4 (Smith v. Barry, supra at 248-49, 112 S. Ct. 682). It is
for this reason that "the notice afforded by the document"
meeting those qualifications, bringing the specified parties
before the court, satisfies FRAP 3 and 4 (Smith v. Barry,
supra at 248-49, 112 S. Ct. at 682), whether that document
was filed by a pro se plaintiff or a large corporation, and
whether or not that notice was "a premature notice" that
ripened, or was filed after a single final judgment. See
FirsTier Mortgage Company _v. Investors Mortgage
Insurance Company, 498 U.S. 269, 275-77, 111 S. Ct. 648,
652-53 (1991). So long as "the notice afforded" by the
document in question is sufficient to notify the opposing
party of the orders to be reviewed and cannot be said to
"catch the appellee by surprise" this Court has held that
"[l]ittle would be accomplished by prohibiting the court of
12
appeals from reaching the merits of such an appeal."
FirsTi v. ve
Insurance Company, supra at 276, 111 S. Ct. at 653.
Here, all trial court orders as to the Dunmeyer
petitioners were "final" under 28 U.S.C. § 1291, including
orders adverse to the class they had been members in, once
their motions to intervene were denied (Brotherhood of
Railroad Trainmen v. Baltimore & Ohio Railroad Co., 331
U.S. 519, 524, 67 S. Ct. 1387, 1390 (1947); D. Knibb,
Federal Court of Appeals Manual, § 16.2 at 187 (2d Ed.
1990) ("unsuccessful intervenors" are entitled "to file a
protective appeal from any decision they would have
appealed if they had been allowed to intervene") (emphasis
added)). All of those orders, accordingly, were properly
appealable under 28 U.S.C. §1291.
Putting aside, then, the fact that all the orders
appealed here were "final" as to the Dunmeyer petitioners,
even if some of the orders the Forster petitioners requested
review of were deemed interlocutory as to them until the
September 23, 1994 dismissal of the underlying case, even
then the Ninth Court had "pendent jurisdiction" over those
other issues, since the Forster petitioners were already
before it appealing the May 11, 1994 order. See, McCowan
y. Sears Roebuck & Co., 908 F.2d 1099, 1104 (2d Cir.
1990); Stewart v. Baldwin County Board of Education, 908
.
13
F.2d 1499, 1509 (11th Cir. 1990).
Ignoring the fact that both the Dunmeyer and Forster
petitioners were already before the court, and neglecting to
note the October 14, 1994 FRAP 27 motion to expand
review requested precisely the same relief, i.e., that the
Ninth Circuit review specifically designated trial court orders
(Compare Appendix B-2-3 to Appendix B-9), that was
requested in the June 1994 Notice of Joint Appeal (excepting
only the addition of the September 1994 post-appeal vacatur
order), the Ninth Circuit required that a second Notice of
Appeal be filed by both the Dunmeyer and the Forster
petitioners. Such redundancy is not necessary to meet the
requirements of FRAP 3 and 4, and cannot be grounds for
failing to reach all the merits of their appeal.
The Dunmeyer petitioners were before the Ninth
Circuit on October 14, 1994. The Forster petitioners were
before the Ninth Circuit on October 14, 1994. There was no
need to bring these parties, already before the Ninth Circuit,
to the Ninth Circuit through a second notice of appeal (See
Calcasieu Marine National Bank v. Grant, 943 F.2d 1453,
1457 (Sth Cir. 1991) (ripening of initial notice of appeal
"does not require the filing of a second notice of appeal"),
nor was there ever any “surprise” or prejudice to BD.
If through an FRAP 27 motion, a Ninth Circuit
Commissioner liac the jurisdiction and authority to dismiss
14
appeals from certain lower court orders, the Ninth Circuit
had both the jurisdiction and the authority to (1) reinstate
review of exactly those same orders the Ninth Circuit
Commissioner had dismissed, and (2) to include the review
of an order, attached to the moving papers, entered by the
trial court after review had commenced. Reading FRAP 3,
4 and 27 together, along with Railroad Trainmen, Smith v.
Barry, and FirsTier Mortgage, no rational conclusion
remains except having the Ninth Circuit proceed to consider
the merits of issues on review on each of the specific trial
court orders designated in the June 1994 Notice of Joint
Appeal and the FRAP 27 October 1994 motion.
Under 28 U.S.C. §2072, this Court is the entity to
define and describe the operation of the FRAP so as to
maintain its goals. The proclivity of a circuit court to deal
with cases before it in a manner incongruous with this
Court’s goals, whether or not the circuit court publishes
those incompatible rulings each time (See Transamerican
Freight Lines v. Brada Miller Freight Systems, 423 U.S. 28,
34, 96 S. Ct. 229, 232, (1975)) should be dealt with by this
Court by granting this joint petition for a Writ of Certiorari.
The joint petitioners respectfully submit the goal of the
uniform, predictable operation of the circuits requires it.
Ee
15
II. Applicati f Californi w_to Multi-State
FRCP 23 Class Constitutional and Proper
After ruling numerous times that application
of California law to claims of the class was proper,’ and
upholding the application of California law to a 10-state area
comprising BD’s Region 9, the trial court, barely three
months to trial, held in August, 1993, that California law
would no longer apply to the class, thereby making the class
unmanageable, and resulting in a decertification order. That
ruling, contrary to Sun Oil Co. v. Wortman, 486 U.S. 717,
108 S.Ct. 2117 (1988), and Phillips Petroleum Company v.
Shutts, 472 U.S. 797, 105 S. Ct. 2965 (1985), eviscerating
FRCP 23, was legally erroneous, led to decertification which
was an abuse of discretion, and cannot be allowed to stand
if multi-state classes under Rule 23 are to maintain any
viability against recurring "other states’ laws" arguments.
*See CR 879/RT at 5 when the court stated at the time the Class was certified
in June 1990, "I’m not concerned about the conflict of law issue raised by the
defense at all." See also CR 333/RT at 5 where court applied California law
when it granted the Class’ June 1991 partial summary judgment on breach of
contract and conversion. The court indeed ruled on March 25, 1994 (CR 815/RT
6-7), seven months after the decertification, that it would not overturn its June
1991 summary judgment order in the Class’ favor that applied Calif "nia contract
and tort law to the ten state area comprising Region 9 due to there having been
"full briefing and oral argument” at that June 1991 hearing, and that the June
1991 court’s order itself was “based on substantive factual and legal issues, was
independently reached based on an analysis of the evidence. . .”
16
The basis of the trial court’s decertification ruling
was BD’s argument that there were differences between
California law and the laws of the thirty-three states where
the class members lived. A Rule 23 federal court multi-state
class, however, does not vaporize merely because differences
in state laws exist. Instead, those differences must mandate
a result different than that obtainable under the law of the
state whose laws the Class wishes be enforced, or the Rule
23 multi-state class should proceed.*
As recognized by Professor Leflar:
‘[FJalse conflict’ really means ‘no conflict of
laws.’ If the laws of both states relevant to
the set of facts are the same, or would.
produce the same decision in the lawsuit,
there is no real conflict between them.
R. Leflar, American Conflicts Law, § 93, p. 188 (3rd Ed.
1977); Comment, False Conflicts, 55 Cal. L. Rev. 74, 76-
77, 110-112 (1967).
* As recognized by this Court in Phillips Petroleum Company v. Shutts, 472
U.S. 797, 816, 105 S. Ct. 2965, 2976 (1985) "There can be no injury" in applying
one state’s law in a class action "if it is not in conflict" with other states’ laws.
Before there will be such a "conflict" there must be "material" differences which,
just as "material facts” under Rule 56, must be of such a level to mandate a result.
E.g. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510
(1986) (Under Rule 56, "material" facts offered by the non-moving party, if
believed, would mandate a different result for that non-moving party.”
ee
%
-
*
¥
4
17
Here, just as in the Shutts case on remand*, when
even the states that were alleged to have “material"
differences "would produce the same decision" by, for
instance, applying “equitable principals", there is only a
"false conflict" and the Rule 23 multi-state class must
proceed. °
Listing defense verdicts on cases distinguishable on
their facts from a number of jurisdictions, with no policy
examination, or merely raising the spector of some class
members residing outside the forum, cannot neutralize the
* Shutts v. Phillips Petroleum Company, 240 Kan. 764, 732 P.2d 1286, 1312-
13 (1987), cert. denied 487 U.S. 1223, 108 S. Ct. 2883 (1988).
* The class cited numerous cases to the trial court showing that the class
members’ residence states would not mandate a different result and would stil!
allow recovery under legal or "equitable principals.” See CR 111 at 9-14; CR 393
at 33-46; CR 683 at 19-20; CR 697 at 20-29; CR 718 at Appendix.
18
application of FRCP 23.° Any contrary ruling would result
in FRCP 23 being completely ineffective anytime a class’
membership spreads beyond one state’s boundaries.’
With the growing tendency of defendants in multi-
state class actions to raise precisely the same "other states’
laws" argument raised by BD here, the joint petitioners
respectfully submit it is imperative for this Court to grant
their request for a Writ of Certiorari to assure consistent
* For cases rejecting near mirror image arguments to BD’s ‘laws of thirty-
three states’ argument, see, e.g., Maywalt v. Parker & Parsley Petroleum Co., 147
F.R.D. 51, 58 (S.D.N.Y. 1993); In re Crazy Eddie Securities Litigation, 135
F.R.D. 39, 41 (E.D.N.Y. 1991); Sollenbarger v. Mountain States Teleph. & Teleg.
Co., 121 F.R.D. 417, 427-28 (D.N.M. 1988); Gruber v. Price Waterhouse, 117
F.R.D. 75, 81-82 (E.D. Pa. 1987); Harmsen v. Smith, 693 F.2d 932 (9th Cir.
1982). cert. denied 464 U.S. 822, 104 S. Ct. 89 (1983); In Re Pizza Time
Theaters Securities Litigation,112 F.R.D. 15 (N.D. Cal. 1986); In Re Seagate
Technologies Securities Litigation, 115 F.R.D. 264 (N.D. Cal. 1987); Roberts v.
Heim, 670 F.Supp. 1466 (N.D. Cal. 1987); In Re MDC Holdings Securities
Litigation, 754 F.Supp. 785 (S.D. Cal. 1990). See also, Allstate Insurance
Company v. Hague, 449 U.S. 302, 315, 101 S. Ct. 633, 641 (1981).
” With more class members living in California than any other state (CR 539,
Exhibits 1, 2), and BD having two regional offices and a Western Area
headquarters managing thirty-two states located in California(CR 166 94; CR 429
5), more than enough significant contacts existed to permit application of
California law where the other states’ laws did not mandate a result different than
that obtainable in California.
‘ ee ee ee ee” MER, RTO Pek a ee eee
19
results, and to keep FRCP 23 from becoming a nullity in
multi-state diversity class actions.
Il. Permitting Vacatur of Adverse Judgments Perverts
Judicial Decisions Into Negotiable Commodities
During the course of this litigation, BD was forced to
stipulate to critical points, and/or was forced to bear the
brunt of four partial summary judgments against it,
establishing (1) that its 1979 Plan was enforceable, (2) that
the Plan was breached by BD, (3) that BD converted the
FSReps funds when it "skimmed" money from the "accrued"
FSReps pools to pay management bonuses, and (4) that BD
should have paid the specific bonus amount calculated under
the "mathematical calculations" set out in the Plan. See
Appendix C-1, C-5, C-13, C-33. In fact, the summary
judgments establishing enforceability of the Plan, breach of
the Plan, and conversion of the "accrued" FSReps’ monies
pertained to all class members in Region 9 for 1979,
including, amongst others, petitioners Dunmeyer, Jackson,
Karch, Kentala and Perret.
Despite the denial of BD’s motion in March 1994 to
be relieved from both its prior stipulations and the effect of
prior adverse court orders (CR 815/RT at 4-7), when it
reached a settlement with former class representative Koepke
following the appeal by the Dunmeyer petitioners of their
20
motions to intervene, BD was able, in the absence of both
the Dunmeyer petitioners and their counsel (See Appendix
C-30, C-35, C-37), to convince the trial court on September
23, 1994, to vacate all prior stipulations and adverse court
orders in the Dunmeyer petitioners’ favor. See Appendix
C-39. Such a ruling, made in the absence of the Dunmeyer
petitioners and their counsel, while they were before the
Ninth Circuit on appeal, violates the Due Process Clause of
the Fifth Amendment, and runs contrary to rulings of this
Court, and to rulings of the Eighth Circuit and Sixth Circuit.
As noted by this Court, the filing of a notice of
appeal
confers jurisdiction on the court of appeals
and divests the district court of its control
over those aspects of the case involved in the
appeal.
Griggs v. Provident Consumer Discount Company, 459 U.S.
56, 58, 103 S. Ct. 400, 402 (1982). Accord, Ulrich
Thompson and Kessler, Federal Appellate Practice Guide -
Ninth Circuit, §5.38 at page 5-52 (1994) ("filing of a notice
of appeal from an appealable order or judgment divests the
District Court of jurisdiction of any matter which is the
subject of the appeal"). See also Liddell v. Board of
Education of City of St. Louis, 73 F.3d 819, 822-23 (8th
Cir. 1996); Fort Gratiot v. Michigan Dept. of Natural
Resources, 71 F.3d 1197, 1203 (6th Cir. 1995).
Peat ey pers eee
21
The fact that petitioners Dunmeyer, Jackson, Karch,
Kentala and Perret obtained specific legal rights upon the
granting of the partial summary judgments of December 6,
1989, January 25, 1990 and June 18, 1991 (Appendix C-1,
C-5, C-13), specifically dealing with their relationship as
Region 9 FSReps with BD, is in no way diminished by BD’s
settlement with the former class representative while they
were on appeal before the Ninth Circuit.
In U.S. Bancorp Mortgage Co. v. Bonner Mall
Partnership, __. U.S. ___, 115 S. Ct. 386 (1994), a
unanimous Court stated that regardless "that the settlement
agreement provides for vacatur," a settling party (like BD)
attempting to escape the effects of adverse judgments against
it may not seek the "equitable entitlement to the
extraordinary remedy of vacatur," noted that "judicial
precedents. . .are not merely the property of private
litigants," and held the effort to vacate judgments before it
must be denied. U.S. Bancorp Mortgage Co. v. Bonner
Mall Partnership, supra, 115 S. Ct. at 392-94. Accord,
Benavides v. Jackson National Life Insurance Co., 820 F.
Supp. 1284, 1288-89 (D. Colo. 1993) (court rejects efforts
of large commercial "repeat litigator" to vacate adverse
judgment noting such efforts amounted to "’perverting’ the
judicial decision into a negotiable commodity,” and if
permitted would allow “wealthy litigants to become, in
SS
22
effect, editors of their own treatises on the subjects which
concern them").
Here, just as in Benavides and U.S. Bancorp, BD
improperly attempted to "rewrite" judicial precedent and to
force any future litigants through the same hoops it had
forced Region 9 FSReps Michael Lillig and David Koepke
through, only to come down after years of stonewalling
discovery and tedious motions to the same result in Koepke
as in Lillig -- a literal admitted liability case where the only
question left for trial for this economic megalith opposed by
individual salespeople was how much it would have to pay
for its wrongful acts, not if it would have to pay. The
stipulations BD was forced to enter into, and the legal
rulings of enforceability, breach of contract and conversion
built upon those stipulations and evidence discovered are not
to be bartered and sold.
The legal rights emanating from those three summary
judgment rulings in their favor formed a major part of
petitioners Dunmeyer, Jackson, Karch, Kentala and Perret’s
claims to be legally entitled to intervene. Neither those
rights, the trial court’s adverse rulings against BD, nor the
joint petitioners’ authorized efforts "to protect" the interests
of the decertified class (United Airlines, Inc. v. McDonald,
432 U.S. 385, 97 S. Ct. 2464 (1977)), are items that can be
negotiated away by a settling party like BD who "picks off"
23
the former class representative. Cf. Deposit Guarantee
National Bank v. Roper, 445 U.S. 326, 339, 100 S. Ct.
1166, 1174 (1980). As recognized by the Benavides court,
"judicial decisions are not for sale." Benavides v. Jackson
National Life Insurance Company, supra at 1289.
Interests in promoting settlement or clearing a court’s
calendar cannot override Due Process under the Fifth
Amendment, nor the interest of this Court and the federal
judiciary in maintaining the integrity of the federal judicial
process. Allowing a "repeat litigator", like BD, to continue
to drag out an ultimately admitted liability case, even in light
of being hit with sanctions of over $27,000 in its attempts to
prevent its own documents proving the case against it from
disclosure (See CR 211), perverts federal judicial rulings
into negotiable commodities, and should not be condoned by
this Court. Granting this Writ for Certiorari and setting out
standards for the protection of former class members and
others while on appeal furthers this Court’s important goal
of safeguarding the foundations of the federal judiciary.
IV. Intervention Prevents Impeding Enforcement of
Rights and Conserves Judicial and
Litigants’ Resources
Only two parts of the four-part FRCP 24(a) test were
at issue in this matter, specifically the "impair or impede"
and adequate representation parts. Disregarding the
24
disjunctive "impair or impede" language in Rule 24, the
Ninth Circuit improperly focused solely on "impair",
requiring the Dunmeyer petitioners to each file their own
separate action, thereby placing the Ninth Circuit in direct
conflict with the Fifth Circuit, and with the District of
Columbia Circuit’s "judicial efficiency" standards for Rule
24(a) motions.
The inclusion of the disjunctive "impair or impede"
language in Rule 24, joint petitioners contend, evidences a
clear intent on the part of the drafters to make Rule 24
extremely flexible. See Cascade Natural Gas Corporation v.
El Paso Natural Gas Company, 386 U.S. 129, 134, 87 S.
Ct. 932, 936 (1967) ("elasticity was injected” into Rule 24(a)
when it was amended). Assuming that the specific words
"or impede" were added to Rule 24 for a reason, as we
must, it should be noted that courts defined the parameters
of the term "impede" well before that term was added to
Rule 24(a). See, e.g., New York Cent. R.R. Co. v. General
Motors Corp., 182 F.Supp. 273, 286 (N.D. Ohio 1960)
("impede is not synonymous with ’obstruct’” but includes
making something "inconvenient"); Richards v. State, 63
Ga.App. 290, 11 S.E.2d 49, 50 (1940) ("’impede’ does not
necessarily mean to ’stop.’ It may mean to hinder, to retard,
to delay, or to hamper."); Erie R.R. Co. v. Board of Pub.
Util. Comm’rs, 89 N.J.L. 57, 98 A. 13, 19 (N.J. 1916)
hcl anal Rassias
25
(noting impede was "synonymous with check; hinder:
delay," court rejected assertion "impede" meant "to
unreasonably obstruct" as being "too narrow"); Keeler v.
Green, 21 N.J. Eq. 27, 30 (6 C.E. Green) (N.J. Ch. 1870)
(Court rejected argument that "impedes" meant "obstructed" ,
ruling impedes instead meant "made a little more
inconvenient").
In specifically rejecting the precise argument posed
by BD here and adopted by the Ninth Circuit, the Fifth
Circuit in Diaz v. Southern Drilling Corporation, 427 F.2d
1118, 1125 (Sth Cir. 1970), cert. denied 400 U.S. 878, 91
S. Ct. 118 (1970), declined to adopt the position of the party
Opposing intervention that the would be intervener "could
simply file an independent suit," found it would "impede"
the intervenor’s protection of its rights "as a practical
matter" under Rule 24 if intervention was not allowed, and
held:
The [intervenor], we recognize, could simply
file an independent suit once the winners of
the present action were determined. The
soundness of this premise, however, is no
guarantee against sophistry in the conclusion.
Similarly, in adopting a "judicial efficiency" standard, the
District of Columbia Circuit has described the focus of Rule
24 to be that of "disposing of law suits by involving as many
apparently concerned persons as is compatible with
26
efficiency and due process." Nuesse v. Camp, 385 F.2d
694, 700 (D.C. Circuit 1967). Accord Natural Resources
uncil vy. , 561 F.2d 904, 909-11 (D.C.
Circuit 1977).
Permitting one Circuit Court to proceed to interpret
the "impede" disjunctive language out of Rule 24, thereby
encouraging the same burgeoning of litigation in general that
has prompted many to consider forming an entirely new
circuit court of appeals, flies in the face of this Court’s and
the Federal Rules of Civil Procedure’s goals of a "just,
speedy, and inexpensive determination of every action."
FRCP 1. As neither the Ninth Circuit’s opinion here nor its
opinion in Blake v. Pallan, 554 F.2d 947 (9th Cir. 1977),
comports with this Court’s flexible reading of Rule 24, nor
the Fifth Circuit nor District of Columbia Circuit’s
resolution of the same or similar questions pertaining to the
impeding of the enforcement of a party’s rights, this Court,
petitioners respectfully submit, should grant the request for
a Writ of Certiorari on this issue.
9 a tn
27
CONCLUSION
For the reasons stated, joint petitioners request that
the Court grant a Writ of Certiorari to review the decision
of the Ninth Circuit Court of Appeals.
Respectfully submitted this 31st day of May, 1996,
James M. Thomas
(Counsel of Record)
Weiss, Jensen, Ellis & Howard
2600 Pike Tower
520 Pike Street
Seattle, WA 98101
Attorneys for Joint Petitioners
Dunmeyer, Furuta, Jackson,
Johnson, Karch, Kentala,
Perret, Procalo, Forster,
Jones, Oravetz, Peckels, White,
Williams, Zucht
APPENDIX
A-1 Order of Ninth Circuit (3/6/96)
A-3 Memorandum of Ninth Circuit (1/19/96)
A-10 Order of Ninth Circuit (12/21/94)
A-11 Order of Ninth Circuit Commissioner (9/16/94)
B-1 Notice of Joint Appeal (6/7/94)
B-5 Joint Appellants’ Motion to Expand Review of
Trial Court’s Orders (10/14/94)
C-1 Stipulated Order Granting Motion for Partiai
Summary Judgment as Amended (12/6/89)
C-5 Stipulated Order Granting Motion for Partial
Summary Judgment (1/25/90)
C-13 Order After Hearing of Eastern District of
California (6/18/91)
C-16 Order After Hearing of Eastern District of
California (8/18/93)
C-18 Order After Hearing of Eastern District of
California (9/20/93)
C-22 Order After Hearing Order Continuing Status
Conference (1/18/94)
C-25 Memorandum of Decision and Order After Hearing
(5/11/94)
C-30
D-]
D-2
D-6
D-6
D-11
il
Representation Statement of Counsel for
Joint Appellants
Order After Hearing of Eastern District of
California (8/15/94)
Motion for Entry of Order of Vacatur and
Dismissal (9/22/94)
Proof of Personal Service of Eastern District
of California for filing of Notice for Entry
of Order of Vacatur and Dismissal; Defendant’s
Memorandum in Support of Motion for Entry
of Order of Vacatur and Dismissal and Order
(9/22/94)
Order of Eastern District of California
(9/22/94)
FRAP 3
FRAP 4
FRAP 27
FRCP 23
FRCP 24
A-]
NOT FOR PUBLICATION
[FILED 3/6/1996
CATHY A. CATTERSON, CLERK
U.S. COURT OF APPEALS]
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID M. KOEPKE. ) No. 94-16153
)
Plaintiff, ) D.C. No
) CV-88-01084-EJG
and
RICHARD A. FORSTER; GARY C. JONES;
RAYMOND A. ORAVETZ; ROBERT M
PECKELS; JERE C. WHITE; JAMES D
WILLIAMS; JOSEPH B. ZUCHT, II,
Intervenors-Appellants,
KERRY T. FURATA; GARY L. JOHNSON;
ERNEST R. PROCALO; JULIE ENDER
JACKSON; TERRY B. KARCH; DAVID K
KENTALA; BRUCE A. PERRET; HERBERT
W. DUNMEYER,
Plaintiffs-Invervenors-
Appellants,
-VS-
BECTON, DICKINSON AND COMPANY,
Defendant-Appellee
A-2
Before: WALLACE, Chief Judge, THOMPSON, Circuit Judg
and THOMPSON,* District Judge.
’ Honorable Gordon Thompson, Jr., United States District Jud; |
Southern District of California, sitting by designation.
The panel as constituted above has voted to deny the
petition for rehearing and to reject the suggestion for
rehearing en banc.
The full court has been advised of the suggestion for
rehearing en banc, and no judge of the court has requested a
vote on the suggestion for rehearing en banc. Fed R. App.
P. 35(b).
The petition for rehearing is denied, and the
ee aan
suggestion for rehearing en banc is rejected.
BEST AVAILA
A-3
NOT FOR PUBLICATION
[FILED 1/19/1996
CATHY A. CATTERSON, CLERK
U.S. COURT OF APPEALS]
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID M. KOEPKE, No. 94-16153
Plaintiff, D.C. No
CV-88-01084-EJG
and
RICHARD A. FORSTER; GARY C. JONES;
RAYMOND A. ORAVETZ; ROBERT M.
PECKELS; JERE C. WHITE; JAMES D.
WILLIAMS; JOSEPH B. ZUCHT, II,
Intervenors-Appellants,
KERRY T. FURATA; GARY L. JOHNSON;
ERNEST R. PROCALO; JULIE ENDER
JACKSON; TERRY B. KARCH; DAVID K.
KENTALA; BRUCE A. PERRET; HERBERT
W. DUNMEYER,
Plaintiffs-Invervenors-
Appellants,
-VS-
BECTON, DICKINSON AND COMPANY, MEMORANDUM
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
}
)
Defendant-Appellee.
)
sLE COPYE
A-4
Appeal from the United States District Court
for the Eastern District of California
Edward J. Garcia, District Judge, Presiding
Argued and Submitted December 5, 1995
San Francisco, California
Before: WALLACE, Chief Judge, THOMPSON, Circuit Judg
and THOMPSON,* District Judge.
The district court originally had jurisdiction pursuant
to 28 U.S.C. § 1331. After the federal claim was dismissed,
the district court exercised jurisdiction over the remaining
state claims pursuant to 28 U.S.C. § 1367. The two
intervenor groups: Dunmeyer et al. (Dunmeyer) and Forster
et al. (Forster) assert that we have jurisdiction to review six
orders from the district court: order denying motions of
Forster to intervene as class representatives for purposes of
appeal and Dunmeyer to intervene (May 11, 1994); order
denying motion for partial summary judgment on choice of
law and class decertification (August 18, 1993); order
denying reconsideration of choice of law and class
decertification (September 20, 1993); order denying motion
for partial summary judgment to determine choice of law for
proposed recertification class (January 18, 1994); order
denying motion for recertification and proposed alternative
class (January 18, 1994); and order denying motion to nullify
settlements and reinstate class members (August 18, 1993).
a
A-5
. Honorable Gordon Thompson, Jr., United States
District Judge, Southern District of California, sitting
by designation.
On September 16, 1994, this court’s appellate
commissioner construed Becton, Dickinson & Company’s
(Becton) motion to dismiss these orders for lack of
jurisdiction as a motion to limit the scope of appeal. We
granted the motion, with the exception of the appeal from the
May 11, 1994, order.
On September 23, 1994, the settlement between
plaintiff, David M. Koepke and Becton became final as the
district court entered an order of vacatur and dismissal for the
entire suit. However, the intervenors never filed a notice of
appeal from this order. Rather, they filed, on October 13,
1994, a motion to expand the remaining appeal of May 11,
1994, to include all the previously dismissed orders as well
as the order to vacate and dismiss.
J
We must first decide whether the district court may be
sustained in denying Dunmeyer intervention and in denying
Forster intervention as class representatives for purposes of
appeal. Federal Rule of Civil Procedure 24 creates two types
of intervention: intervention as a matter of right and
A-6
permissive intervention. Deniai of intervention as a matter of
right is reviewed de novo. Idaho Farm Bureau Fed v.
babbitt, 58 F.3d 1392, 1397 (9th Cir. 1995).
Rule 24(a)(2) establishes a four-fold test for
intervention of right for those situations not covered by the
unconditional statutory intervention rights under Rule
24(a)(1). Under Rule 24(a)(2), a court must allow a third-
party’s intervention as right if four conditions are met: if the
motion is timely; if the interest asserted relates to the
property or transaction which is the subject of the action; if
intervention is necessary to prevent, as a practical matter,
impairing or impeding of the third-party’s interest; and if the
interest is inadequately represented by other parties. United
States v. Stringfellow, 783 F.2d 821, 826 (9th Cir. 1986),
vacated on oner_ grounds, Stringfellow _v. Concerned
Neighbors in Action, 480 U.S. 370 (1987); see also Blake v.
Pallan, 554 F.2d 947, 951 (9th Cir. 1977) (Blake). Parties
dispute the last two conditions.
Dunmeyer asserts that the impairment or impediment
of interest condition involves a flexible approach. He argues
that courts must allow intervention even if the applicant could
simply file another action but would suffer inconvenience and
waste effort as a result. Our precedent rejects this position.
"Mere inconvenience" or supposed judicial economy
considerations are not enough to mandate intervention as of
A-7
right. Blake, 554 F.2d at 954. Dunmeyer has failed to show
how his interests would be hurt by bringing separate suits:
he, therefore, does not meet this prong of the Stringfellow
test. Since all four prongs of the Stringfellow test must be
met, we need not consider whether the Dunmeyer
intervenors’ interests were adequately represented.
Dunmeyer further alleges that the district court must
be reversed for failing to allow permissive intervention.
Denial of permissive intervention is reviewed for abuse of
discretion. Employee Staffing Services v. Aubry, 20 F.3d
1038, 1042 (9th Cir. 1994).
Rule 24(b) allows permissive intervention if three
conditions are met: the movant shows an independent ground
for jurisdiction, the motion is timely, and there exists a
common question of law and fact between movant’s claim
and the main action. This rule further instructs the court to
consider whether intervention will unduly delay or prejudice
the adjudication of the rights of the original parties. Venegas
v. Skaggs, 867 F.2d 527, 529-30 (9th Cir. 1989). The
district court identified numerous factors which weighed
against permissive intervention: there would be delay to
current main parties; the applicant-intervenors’ best interest
would be served by separate actions; additional discovery
would prejudice present parties but disallowing discovery
would prejudice applicant-intervenors; and, choice of law
A-8
issues would reemerge if intervention were allowed. These
factors seem reasonable, and the district court did not abuse
its discretion when it relied on them to deny Dunmeyer’s
motion to intervene.
II
On September 16, 1994, this court dismissed appeal
of all orders, except the May 11, 1994, which denied
Dunmeyer intervention and denied Forster request for
designation as class representatives for purposes of appeal.
We now turn to whether the district court properly denied
Forster’s request. The district court is reviewed for abuse of
discretion. Baby Neal for and by Kantor v. Casey, 43 F.3d
48, 56 (3d Cir. 1994).
The district court stated that there was no authority
for appointing seven plaintiff intervenors as _ class
representatives of other decertified plaintiffs. Such
designation could lead other decertified plaintiffs to believe
a class action still was being prosecuted and thus forego their
own, private actions.
These reasons appear reasonable; the district court has
not abused its discretion. We affirm the district court’s
refusal to designate Forster as class representative.
We now turn to the five dismissed interlocutory
orders. Unlike the May 11, 1994, orders, these appeals were
dismissed as appeals from nonfinal, interlocutory orders.
A-9
When the underlying suit was settled and the district court
entered a final order of vacatur and dismissal, Dunmeyer did
not file a notice of appeal from that final order, but filed a
motion to "expand" the present appeal to include the
previously dismissed appeals and the district court’s final
order. This is insufficient. The filing of a motion to expand
the appeal is not a notice of appeal or the "functional
equivalent" of a notice of appeal. The motion appellants
filed merely states the intention to expand the review of the
May 11, 1994, order currently before this court and nothing
more; it does not clearly convey the information which a
proper notice of appeal would contain.
We affirm the district court’s rulings denying
intervention to Dunmeyer and declining to designate Forster
as a class representative. We do not have jurisdiction to
consider the other orders purportedly before us.
AFFIRMED.
Note: This disposition is not appropriate for publication and
may not be cited to or by the courts of this circuit except as
provided by Ninth Circuit Rule 36-3.
A-10
(FILED 12/21/1994
CATHY A. CATTERSON, CLERK
U.S. COURT OF APPEALS}
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID M. KOEPKE, No. 94-16153
D.C. No
CV-88-01084-EJG
Plaintiff
and Eastern California
(Sacramento)
RICHARD A. FORSTER, et a.,
Intervenors/Proposed Intervenors )
- Appellants, )
)
vs )
)
BECTON-DICKINSON & COMPANY, ) ORDER
)
Defendant-Appellee )
)
Before: SNEED, D.W. NELSON, and TROTT,
Circuit Judges
Appellants’ motion for leave to file a reply in support
of their motion to expand review of the trial court’s orders is
granted. Appellants’ motion to expand review of the trial
court’s orders and appellee’s second motion to dismiss the
appeal are denied without prejudice to renewal of the
arguments in the briefs on the merits. A new briefing
schedule will be set by the court mediator.
ee are
[FILED 9/16/1994
CATHY A. CATTERSON, CLERK
U.S. COURT OF APPEALS]
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID M. KOEPKE, ) No. 94-16153
)
Plaintiff, ) D.C. No
CV-88-01084-EJG
)
and ) Eastern California
) (Sacramento)
RICHARD A. FORSTER, et a., )
)
: Intervenors/Proposed Intervenors )
- Appellants, )
)
vs. )
)
: BECTON-DICKINSON & COMPANY, ) ORDER
)
Defendant-Appellee )
)
)
Before: Peter L. Shaw, Appellate Commissioner
Appellee’s motion to dismiss the appeal for lack of
jurisdiction is construed as a motion to limit the scope of the
| appeal. So construed, the motion is granted in part and
denied in part. The June 7, 1994 notice of appeal was not
filed within 30 days of entry of the district court’s August
A-12
18, September 20, 1993, and January 18, 1994 orders and
thus is not timely to seek review of them. See Fed. R. App.
P. 4(a)(1). Furthermore, the August 18, 1993, September 20,
1993, and January 18, 1994 orders are not final or
immediately appealable. See Coopers & Lybrand v. Livesay,
437 U.S. 463, 468 (1978). Accordingly, appellee’s motion
to limit the scope of the appeal is granted as to these orders.
As appellee concedes, however, that portion of the
district court’s May 11, 1994 order that denied leave to
intervene is immediately appealable. See In re Benny, 791
F.2d 712, 720-21 (9th Cir. 1987). To the extent that appellee
seeks to further limit this court’s review of the May 11, 1994
order, the motion is denied without prejudice to renewal of
the arguments in the briefs. Accordingly, appellants may
raise all issues presented by the May 11, 1994 order in the
briefs on the merits.
Appellee’s motion for leave to file a reply in support
of the motion to dismiss is granted. See Fed. R. App. P.
27(a). Appellee’s request for double attorneys’ fees and costs
on the motion as a sanction for filing a frivolous appeal is
denied. Appellants’ motion for leave to file oversized
opening and reply briefs is denied. A new briefing schedule
will be set by the Court Mediator.
General Order 6.3(e)
(FILED 6/7/1994
CLERK
DISTRICT COURT FOR THE EASTERN DISTRICT OF
CALIFORNIA]
JAMES M. THOMAS
PETER A. OZANNE (Bar #051291)
SCHWABE, WILLIAMSON, FERGUSON & BURDELL
U.S. Bank Centre, Suite 3500
1420 Fifth Avenue
Seattle, Washington 98101-2339
Telephone: (206) 622-1711
BRUCE L. SHAFFER (Bar #062730-5)
MEMERING, VARANINI, CROWLE & TRIMBLE
2720 Gateway Oaks Drive, Suite 300
Post Office Box 590
Sacramento, California 95833
Telephone: (916) 923-2800
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
DAVID M. KOEPKE,
Plaintiff,
HERBERT W. DUNMEYER,
KERRY T. FURUTA, JULIE
ENDER JACKSON, GARY L.
JOHNSON, TERRY B. KARCH,
DAVID K. KENTALA, BRUCE
A. PERRETT, ERNEST R.
PROCALO,
NO. CIVS 88-1084 EJG-GGH
Individual NOTICE OF. JOINT APPEAL
ll i i i i i ee
B-2
RICHARD A. FORSTER,
GARY C. JONES, RAY A.
ORAVETZ, ROBERT M.
PECKELS, JR., JERE C.
WHITE, JAMES D.
WILLIAMS, JOSEPH B.
ZUCHT, Il
)
)
)
)
)
)
)
)
Intervenors for Purposes )
of Appeal of Class )
Issues, )
)
)
)
)
)
)
)
)
)
VS.
BECTON, DICKINSON and
COMPANY, a foreign
corporation,
Defendant.
NOTICE IS HEREBY GIVEN that individual
intervenors Dunmeyer, Furuta, Jackson, Johnson, Karch,
Kentala, Perret and Procalo, and intervenors for the purposes
of appealing class issues Forster, Jones, Oravetz, Peckels,
White, Williams and Zucht, plaintiff intervenors and/or
former class members in the above-named case, hereby
jointly appeal to the United States Court of Appeals for the
Ninth Circuit from orders entered in this action on the dates
specifically noted as follows:
aa ee ed Eee ee SO ee er a
ee eee
—
Ce ee ed
__
Order
Order Denying Individuals’ Motions for
Intervention
Order Decertifying the Class
Order Denying Reconsideration of Class
Decertification
Order Denying Motion for Partial
Summary Judgment to Determine Choice
of Law For Proposed Recertified
Class
Order Denying Motion for Recertification
of Proposed Alternative Class
Order Denying Motion to Nullify
Settlements and Reinstate Class Members
Orders Denying Motion Requesting
Intervenors be Appointed Class
Representatives for Purposes of Appeal
DATED this 6th day of June, 1994.
Date of Entry
5/11/94
8/18/93
9/20/93
1/18/94
1/18/94
8/18/93
5/11/94
B-4
SCHWABE, WILLIAMSON, FERGUSON &
BURDELL
James M. Thomas
WSBA # 07512
Attorneys for Individual Intervenors
Dunmeyer, Furuta, Jackson, Johnson,
Karch, Kentala, Perret and Procalo;
Intervenors for Purposes of Appealing
Class Issues Forster, Jones, Oravetz,
Peckels, White, Williams and Zucht
i ek ee ee ee Cae eee ee
B-5
[FILED 10/14/94
9TH CIRCUIT]
Docket No. 94-16153
IN THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HERBERT DAVID M. KOEPKE.
Plaintiff,
HERBERT W. DUNMEYER, KERRY T. FURUTA, JULIE
ENDER JACKSON, GARY L. JOHNSON, TERRY B.
KARCH, DAVID K. KENTALA, BRUCE A. PERRETT,
ERNEST R. PROCALO,
Individual Intervenors, Joint Appellants
RICHARD A. FORSTER, GARY C. JONES, RAY A.
ORAVETZ, ROBERT M. PECKELS, JR., JERE C. WHITE,
JAMES D. WILLIAMS, JOSEPH B. ZUCHT, II
Intervenors for Purposes of Appeal
of Class Issues, Joint Appellants
VS.
BECTON, DICKINSON and
COMPANY, a foreign corporation,
Appellee.
B6
APPEAL FROM UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
DISTRICT COURT NO. CV-88-1084 EJG/GGH
Joint Appellants’ Motion to Expand
Review of Trial Court’s Orders
JAMES M. THOMAS
SCHWABE, WILLIAMSON,
FERGUSON & BURDELL
U.S. Bank Center
1420 Fifth Avenue, #3400
Seattle, WA 98101-2339
(206) 622-1711
Attorneys for Joint Appellants
Dunmeyer, Furuta, Jackson, Joh
Karch, Kentala, Perret, Procalo,
Forster, Jones, Oravetz, Peckels.
White, Williams, Zucht.
COME NOW Joint Appellants, Herbert W. Dunmeyer,
Kerry T. Furuta, Julie Ender Jackson, Gary L. Johnson, Terry
B. Karch, David K. Kentala, Bruce A. Perret, Ernest R.
Procalo, Richard A. Forster, Gary C. Jones, Ray A. Oravetz,
Robert M. Peckels, Jr., Jere C. White, and Joseph B. Zucht,
Il, by and through their counsel of record, Schwabe,
Williamson, Ferguson & Burdell and James M. Thomas, and
pursuant to FRAP 27, move this Court for entry of an order
expanding appellate review of the trial court’s orders in this
B7
matter.
GROUND UPON WHICH THE MOTION IS BASED
This Motion is based upon the entry of an order by
the trial court on September 23, 1994 dismissing all claims
of the named plaintiff in the action before him, David M.
Koepke, and upon the Declaration of James M. Thomas
accompanying this Motion.
Pursuant to the Rules on Appeal and established case
law, there is no debate that the following orders of the trial
court must now, under any definition of the word, be
determined to be final and appealable orders by the joint
appellants before this Court:
Order
Order Denying Motion for Partial
Summary Judgment to Determine Choice
of Law, and Decertifying the Class
Order Denying Reconsideration of
Choice of Law Ruling and Class
Decertification
Order Denying Motion for Partial
Summary Judgment to Determine Choice
of Law for Proposed Recertified Class
Order Denying Motion for
Recertification of Proposed
Alternative Class
Date of Entry
August 18, 1993
Sept. 20, 1993
January 18, 1994
January 18, 1994
B8
Order Denying Motion to Nullify August 18, 1994
Settlements and Reinstate Class
Members
Order Vacating Prior Orders and Sept. 23, 1994
Stipulations Entered into by Defendant
Becton Dickinson
While Becton Dickinson objected to orders entered
August 18, 1993, September 20, 1993 and January 18, 1994
as being "interlocutory" previously, with the entry of the trial
court’s order of September 23, 1994, no underlying case
exists any longer between Becton Dickinson and David M.
Koepke, the named plaintiff in that trial court action. The
reasoning set out in United Airlines, Inc. v. McDonald, 432
U.S. 385, 97 S.Ct. 2464, 53 L.Ed.2d 423 (1977), requires
that all these orders now be considered by the Ninth Circuit.
Joint appellants Dunmeyer, Furuta, Jackson, Johnson,
Karch, Kentala, Perret, Procalo, Forster, Jones, Orvaetz,
Peckels, White, Williams and Zucht respectfully assert the
federal rules, established case law, equity and good practice
call for the expeditious granting of their motion to expand
review of the trial court’s orders.
se a Ad a ls Da Ahn ela Ler
B9
ORDER OR RELIEF SOUGHT
The joint appellants seek the entry of an order
expanding review of the trial court’s orders before this Court
from the May 11, 1994 order presently under review, to
include the following orders:
Order
Order Denying Motion for Partial
Summary Judgment to Determine
Choice of Law, and Decertifying
the Class
Order Denying Reconsideration of
Choice of Law Ruling and Class
Decertification
Order Denying Motion for Partial
Summary Judgment to Determine Choice
of Law for Proposed Recertified Class
Order Denying Motion for
Recertification of Proposed
Alternative Class
Order Denying Motion to Nullify
Settlements and Reinstate Class
Members
Order Vacating Prior Orders and
Stipulations Entered into by Defendant
Becton Dickinson
Date of Entry
August 18, 1993
Sept. 20, 1993
January 18, 1994
January 18, 1994
August 18, 1994
Sept. 23, 1994
B10
RESPECTFULLY SUBMITTED this 13th day of
October, 1994.
SCHWABE, WILLIAMSON,
FERGUSON & BURDELL
By:
James M. Thomas
WSBA # 07512
Attorneys for Joint Appellants
Herbert W. Dunmeyer, Kerry T.
Furuta, Julie Ender Jackson, Gary
L. Johnson, Terry B. Karch,
David K. Kentala, Bruce A. Perret,
Ernest R. Procalo; Richard A.
Forster, Gary C. Jones, Ray A.
Oravetz, Robert M. Peckels, Jr.,
Jere C. White, James D. Williams,
and Joseph B. Zucht, II
[FILED 12/6/89]
CLERK
EASTERN DISTRICT OF CALIFORNIA
SYLVESTER RUUD PETRIE & CRUZEN
F. DOUGLAS RUUD #47327
JAMES M. THOMAS Pro hac vice
MARK D. DEIFE Pro hac vice
2600 Columbia Center
701 Fifth Avenue
Seattle, Washington 98104-7088
Telephone: (206) 623-1330
COOPER & SHAFFER
BRUCE L. SHAFFER #0672305
MICHAEL R. GERMAIN #133553
2525 Natomas Park Drive, Suite #200
Sacramento, California 95833
Telephone: (916) 927-2525
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
DAVID M. KOEPKE, No. CIVS-88-1084 EJG-JFM
Plaintiff,
)
)
)
)
) STIPULATED ORDER GRANTING
) MOTION FOR PARTIAL SUMMARY
)
)
)
)
Vv.
BECTON-DICKINSON, JUDGMENT AS AMENDED
Defendant.
)
THIS MATTER having come on before the above-
entitled Court on the duly noted motion for partial summary
C-2
judgment by Plaintiff Class Representative Koepke, and this
Court having considered:
(1) Plaintiff Class Representative Koepke’s motion
and memorandum in support of Motion for Partial Summary
Judgment, filed September 29, 1989;
(2) Affidavit of James M. Thomas in support of
Motion for Partial Summary Judgment, filed September 29,
1989; and
(3) Stipulation of Defendant Becton-Dickinson,
filed November 17, 1989;
and the parties stipulating to the entry of this Order, and the
Court determining that Plaintiff Class Representative Koepke
is entitled to the granting of the motion for partial summary
judgment, it is now, therefore
ORDERED that the motion for partial summary
judgment by Plaintiff Class Representative Koepke is granted;
and it is further
ORDERED that the jury in Lillig v. Becton-
Dickinson, Case No. 80-2-07648-5 (King County,
Washington, Superior Court) ("Lillig"), found (a) that
Becton-Dickinson breached the FY 1979 Incentive
Compensation Plan ("1979 Bonus Plan) in determining the
amount of the Region 9 bonus pool and (b) that the amount
of the Region 9 bonus pool for fiscal year 1979 that should
have been distributed to the Region 9 Field Sales
C-3
Representatives was $207,954; and it is further
ORDERED that Becton-Dickinson is collaterally
estopped from relitigating in this action the issue of whether
it breached the 1979 Bonus Plan, based on the judgment in
Lillig.
Dated: 12/6/89
HONORABLE EDWARD J. GARCIA,
UNITED STATES DISTRICT COURT JUDGE
Stipulated Order Presented by:
SYLVESTER RUUD PETRIE & CRUZEN
JAMES M. THOMAS
Attorneys for Plaintiff
Class Representative
David M. Koepke
Copy Received; Stipulated Agreement as to
Form and Content
C-4
DINKELSPIEL & DINKELSPIEL
By
CECIL E. MORRIS
Attorneys for Defendant
C-5
(FILED 1/25/90]
CLERK
EASTERN DISTRICT OF CALIFORNIA
SYLVESTER RUUD PETRIE & CRUZEN
F. DOUGLAS RUUD #47327
JAMES M. THOMAS Pro hac vice
MARK D. DEIFE Pro hac vice
2600 Columbia Center
701 Fifth Avenue
Seattle, Washington 98104-7088
Telephone: (206) 623-1330
COOPER & SHAFFER
BRUCE L. SHAFFER #0672305
MICHAEL R. GERMAIN #4133553
Suite #200
2525 Natomas Park Drive
Sacramento, California 95833
Telephone: (916) 927-2525
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
DAVID M. KOEPKE, ) No. CIVS-88-1084 EJG-JFM
)
Plaintiff, )
)
v. ) STIPULATED ORDER GRANTING
) MOTION FOR PARTIAL SUMMARY
BECTON-DICKINSON, ) JUDGMENT
)
Defendant. )
)
THIS MATTER having come on before the above-
entitled Court on the duly noted motion for partial summary
C-6
judgment by Plaintiff Class Representative Koepke, and this
Court having considered:
(1) Plaintiff Class Representative Koepke’s motion
and memorandum in support of Motion for Partial Summary
Judgment, dated July 27, 1989;
(2) Affidavit of James M. Thomas in support of
Motion for Partial Summary Judgment, dated July 27, 1989;
(3) Stipulation of Defendant Becton-Dickinson,
dated September 15, 1989; and
(4) Reply Memorandum of Plaintiff, dated
September 18, 1989;
and the Court determining that Plaintiff Class Representative
Koepke is entitled to the granting of the motion for partial
summary judgment, it is now, therefore
ORDERED that the motion for partial summary
judgment by Plaintiff Class Representative Koepke is granted;
and it is further
ORDERED that the "FY 1979 Incentive
Compensation Plan" at issue in said motion, a copy of which
is attached hereto as Exhibit A, is, as a matter of law, an
enforceable written contract between Becton-Dickinson and
its Region Nine field sales representatives who are eligible
pursuant to Section 7 "Eligibility" of the "FY 1979 Incentive
Compensation Plan"; and it is further
ORDERED that the letter from Mr. A. Coomans at
Pe OS EES OE rt
C-7
Becton-Dickinson, dated February 23, 1979, and the "FY
1979 Incentive Compensation Plan" attached to it, Exhibits B
and C, respectively, to Plaintiff's Memorandum in Support of
Motion for Partial Summary Judgment, states additional terms
of employment and compensation between Becton-Dickinson
and Plaintiff Koepke.
HONORABLE EDWARD J. GARCIA,
UNITED STATES DISTRICT COURT JUDGE
1/25/90
Presented by:
SYLVESTER RUUD PETRIE & CRUZEN
JAMES M. THOMAS
Attorneys for Plaintiff
Class Representative
David M. Koepke
Copy Received; Agreement as to
Form and Content:
C-8
DINKELSPIEL & DINKELSPIEL
By
CECIL E. MORRIS
Attorneys for Defendant
C-9
February 23, 1979
MEMO TO: HOSPITAL-MEDICAL REPRESENTATIVES
LABORATORY PRODUCTS REPRESENTATIVES
SUBJECT: FY 1979 Bonus Plan
Attached is your copy of the FY 1979 Bonus Plan.
This plan is the same as last year’s plan with one exception -
the additional bonus rate on P/L 48 (1.V. Catheters) has been
eliminated. This product line will earn the same percentage
as the other product lines.
Please review this plan carefully. Should you have any
questions, please contact your Regional Manager.
Best regards,
A. Coomans
Attachments
[EXHIBIT A]
C-10
FY 1979 INCENTIVE COMPENSATION PLAN
1. REGIONAL PERFORMANCE VERSUS _ PRIOR
YEAR
Incentive monies will accrue on a Regional basis
when Region exceeds 1978 sales. In the event a
Region does not exceed prior year sales, no bonus
will be paid.
BONUS RATE
a. The rate of bonus will be 4.5% of Regional
Nm
sales increase over prior year.
b. Comparisons to prior year will be based on
adjusted gross Regional sales, which is defined
as shipments less returns and adjustments.
These are the same figures reflected in the
monthly Territorial "C" and Regional "C-1"
Reports. .
3. APPORTIONMENT OF REGIONAL BONUS POOL
The Regional bonus pool will be apportioned by the RSM
with approval of the ASM and the Director of Trade Sales
according to the following formula:
a. The individual territory contribution to Regional
performance. Note: Documented transfer orders
should be encouraged and records maintained in the
Regional Office.
eee Oe ae Tee Re
C-11
The retention of business on major product lines in
key accounts.
Market penetration of new products and broadened
sales of existing product lines.
Comparison of territorial versus regional performance
on major product lines. This will be accomplished by
comparing the Territorial "C" Report against the
Regional "C-1" Report.
REGIONAL PERFORMANCE VERSUS BUDGET
Additional ‘bonus monies will accrue when the
national sales budget is exceeded. A bonus rate of an
additional 4.5% will be applied to adjusted gross sales
over the FY 1979 national budget. This fund will be
distributed only among those Regions which exceed
their budget. Your RSM will distribute these funds
based on your contribution as outlined above.
The Incentive Compensation Plan will be
supplemented throughout the year by periodic sales
contests.
B-D Division reserves the right to make adjustments
in the above formula in cases of windfall volume,
adverse economic factors, or new product sales.
ELIGIBILITY
The employment status and length of service necessary to be
eligible for a field sales bonus is as follows:
a.
No bonus will be paid to any sales representative who
is not on roll on December 1, 1979.
No bonus will be paid to anyone who has completed
less than six months of service at the end of the
Fiscal Year.
50% may be paid to those with more than six months
but less than nine months of service.
75% may be paid to those with more than nine
months but less than one year of service.
A full year of service during the Fiscal Year is
necessary for full participation in the plan.
In the event of transfer to any position in the
corporation, one-twelfth (1/12) of the earned
territorial yearly bonus will be paid to the Field Sales
Representative for each month of territorial coverage.
C-13
[FILED 6/18/91]
CLERK
U.S. DISTRICT COURT FOR THE EASTERN
DISTRICT OF CALIFORNIA
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF CALIFORNIA
DAVID M. KOEPKE, individually
and as class representative,
BECTON, DICKINSON and
COMPANY,
J
J
Plaintiff, ) CTV NO. S-88-1084 EJG/GGH
)
) ORDER AFTER HEARING
)
}
}
Defendant
}
}
J
This matter was before the court on June 6, 1991 for
hearing on plaintiff's motion for partial summary judgment
and the court’s status conference. James M. Thomas and A
Edward Briseno appeared on behalf of plaintiff. Kent Jonas
and Bruce W. Belding appeared on behalf of defendant
After considering the parties’ written and oral arguments and
the record in this matter, and for the reasons stated in the
court’s oral analysis in open court on the record, the court
entered the following order.
C-14
i The parties stipulate that the amount of money
that should have been distributed to the Region 9 Field Sales
Representatives was erroneously stated as $207,954 in the
order entered December 6, 1989, and that the correct amount
is $209,904.
2. Both parties’ requests that the court take
judicial notice of documents submitted regarding the motion
are granted.
3. Plaintiff's motion for partial summary
judgment is granted. The court now rules that Becton,
Dickinson & Company’s taking of monies from the Becton-
Dickinson Division Region 9 Field Sales Representatives’
fiscal year 1979 bonus pools to pay its Region 9 Regional
Sales Manager and its "District Manager, Laboratory
Products” in calendar year 1979 amounted to 1) a breach of
contract between the defendant and its Becton-Dickinson
Division Region 9 eligible field sales representatives, and 2)
conversion.
4. The status conference is continued to October
18, 1991 at 9:30 am. The parties are directed to file, ten
days before the conference, supplemental status reports
addressing the further scheduling of this matter.
5. A settlement conference is scheduled before
the Honorable David F. Levi for September 13, 1991 at 3:30
p.m. Any requests for rescheduling the date and/or time of
C-15
the settlement conference shall be directed to Judge Levi's
courtroom deputy clerk. Each party shall submit confidential
settiement conference statements directly to the chambers of
Judge Levi seven (7) days before the conference. Said
statements are neither to be filed with the clerk nor served on
opposing counsel, but the parties shall notify each other that
the statements have been submitted.
///
///
IT IS SO ORDERED.
Dated: June 14, 1991.
EDWARD J. GARCIA, JUDGE
UNITED STATES DISTRICT COURT
[FILED 8/18/93]
CLERK
U.S. DISTRICT COURT FOR THE EASTERN
DISTRICT OF CALIFORNIA
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF CALIFORNIA
DAVID M. KOEPKE, individually )
and as class representative, )
Plaintiff, ‘CIV NO. S-88-1084 EJG/GGH
BECTON, DICKINSON and ) ORDER AFTER HEARING
COMPANY, )
Defendant
)
)
)
)
)
This matter was before the court on August 13, 1993,
for hearing on various motions filed by the parties. James
Thomas appeared on behalf of plaintiff. Donald Ware, Claire
LaPorte and Mr. Webber appeared on behalf of defendant.
After considering the parties’ written and oral arguments and
the record on this matter, and for the reasons stated in the
court’s oral analysis in open court on the record, the court
entered the following order.
C-17
l. Plaintiff's motion for clarification is resolved
in the following manner: persons who settled with defendant
or who opted out of the class are no longer class members.
2. Plaintiff's motion to nullify settlements is
denied.
3. Plaintiff's motion for partial summary
judgment on choice of laws and requesting a finding by the
court that California law applies to all claims by all class
members, is denied.
4. Defendant’s motion to decertify the class is
granted.
5. Hearing on the balance of the motions, as well
as a status conference, are continued to September 17, 1993
at 9:00 a.m. The parties are directed to file supplemental
status conference reports addressing the impact of the court’s
rulings on the remainder of the case. NO FURTHER
BRIEFING IS REQUESTED, NO WILL IT BE
ACCEPTED, in connection with the remaining six motions
IT IS SO ORDERED.
Dated: August 13, 1993
EDWARD J. GARCIA, JUDGE
UNITED STATES DISTRICT COURT
C-18
(FILED 9/20/93)
CLERK
U.S. DISTRICT COURT FOR THE EASTERN
DISTRICT OF CALIFORNIA
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF CALIFORNIA
DAVID M. KOEPKE, individually
and as class representative,
Plaintiff, CIV NO. S-88-1084 EJG/GGH
COMPANY,
Defendant
)
)
)
)
) .
BECTON, DICKINSON and ) ORDER ‘AFTER HEARING
)
)
)
)
)
)
This matter was before the court on September 17,
1993, for hearing on various motions filed for a status
conference. James Thomas appeared on behalf of plaintiff.
Donald Ware and Claire LaPorte appeared on behalf of
defendant. After considering the parties’ written and oral
arguments and the record in this matter, and for the reasons
stated in the court’s oral analysis in open court on the record,
the court entered the following order.
C-19
l. Plaintiff's motion for reconsideration of the
court’s choice of laws and decertification rulings of August
13, 1993, is denied.
///
///
2. Defendant’s motion to dismiss for lack of
subject matter jurisdiction is denied. The court finds that
factors of judicial economy, fairness and convenience weigh
in favor of retaining jurisdiction over the pendent claims.
3. The following motions, all of which were
prepared and filed prior to the court’s decertification ruling
and at a time when this case was a nationwide class action,
are denied as moot. In their present form they cannot be
applied to a single plaintiff action.
a) Defendant’s motion for relief from
stipulations;
b) Defendant’s motion for summary
judgment regarding the statute of limitations;
c) Defendant’s motion for summary
judgment on all claims;
d) Plaintiff's motion for partial summary
judgment regarding the existence of partially
integrated contracts for 1978-1981 in all twelve
regions; and
C-20
- e) Plaintiff's motion for partial summary
judgment regarding a determination that defendant
failed to pay Region 9 sales representatives in 1979.
4. Plaintiff's request for "modification" of the
class is rendered moot by the court’s decertification order.
To the extent the request, raised for the first time in
plaintiff's reply brief in support of reconsideration and in his
status report, is a request for certification of an alternative
class, the request is denied without prejudice.
5. Plaintiff shall notify the court and opposing
counsel no later than 4:30 p.m. September 23, 1993, if he
intends to file a motion for certification of an alternative
class, or if he intends to proceed to trial as a single plaintiff
action on December 6, 1993.
6. In the event plaintiff intends to proceed to trial
with the case in its present posture, with a single plaintiff,
defendant shall file and serve its dispositive motions, directed
solely to the single plaintiff, no later than Friday October 1,
1993. A hearing on the motions will be held at 9:00 a.m. on
October 29, 1993. The parties are directed to Local Rule 230
for the remainder of the briefing schedule.
7. In the event plaintiff seeks certification of an
alternative class, the final pretrial conference and tria! date
will be vacated. Plaintiff's motion for certification shall be
filed in accordance with the provisions of Local Rule 230,
C-21
and will be heard at 9:00 a.m. on January 14, 1994. A status
conference will be held immediately following the hearing on
the motion. The parties shall file supplemental status reports
ten days prior to the conference.
8. Service on the opposing party of any brief
filed pursuant to paragraphs 6 and 7, above shall be by
facsimile or overnight mail. NO BRIEF SHALL EXCEED
20 PAGES IN LENGTH.
IT IS SO ORDERED.
Dated: September 20, 1993
EDWARD J. GARCIA, JUDGE
UNITED STATES DISTRICT COURT
C-22
[FILED 1/18/94]
CLERK
U.S. DISTRICT COURT FOR THE EASTERN
DISTRICT OF CALIFORNIA
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF CALIFORNIA
DAVID M. KOEPKE )
)
Plaintiff, ) CIV NO. 8-88-1084 EJG/GGH
)
BECTON, DICKINSON and ) ORDER AFTER HEARING
COMPANY, ) ORDER CONTINUING STATUS
) CONFERENCE
Defendant. )
)
)
)
This matter was before the court on January 14, 1994,
for hearing on plaintiff's motions for partial summary
judgment regarding choice of laws, recertification, and
intervention of subclass representative, and for a status
conference. James Thomas appeared on behalf of plaintiff.
Donald Ware and Claire LaPorte appeared on behalf of
defendant. After considering the parties’ written and oral
arguments and the record in this matter, and for the reasons
stated in the court’s oral analysis in open court on the record,
the court entered the following order.
C-23
1. Plaintiff's motion for partial summary
judgment is denied.
2. Plaintiff's motion for recertification is denied.
3. Plaintiff's motion for intervention is denied as
moot.
4, The parties are directed to meet and confer
concerning a form of Notice to send to the former class
members informing them of the court’s ruling decertifying
the class action. In the event the parties’ cannot agree on the
form of Notice, and in the event informal court intervention
does not resolve the matter and written briefs are required, a
hearing on the matter will be held at 9:00 a.m., March 25,
1994.
5. If agreement can be reached prior to January
28, 1994, the Notice to former class members shall be sent
to them on or before February 1, 1994. Any appropriate
motion former class members may wish to file in response to
the court’s decertification order shal] be filed and served on
all parties no later than March 11, 1994, so that the motions
can be heard at 9:30 a.m., April 15, 1994.
6. The status conference is continued to 9:30
a.m., April 15, 1994. The parties shall file supplemental
status reports no later than April 5, 1994.
C-24
7. Defendant’s anticipated summary judgment
directed at the claims of the sole remaining plaintiff, David
Koepke, may be heard at 9:00 a.m., March 25, 1994, since
defendant has already reserved the hearing date for that
purpose. However, the parties are advised that intervening
events in this case may counsel against resolving the motion
at that time. At defendant’s request, the page limitation
previously placed on the parties is lifted for briefs filed in
connection with defendant’s anticipated summary judgment
motion. This is not an open invitation for lengthy briefs.
Counsel are still admonished to be brief.
IT IS SO ORDERED.
Dated: January 14, 1994
EDWARD J. GARCIA, JUDGE
UNITED STATES DISTRICT COURT
(FILED 5/11/94]
CLERK
U.S. DISTRICT COURT FOR THE EASTERN
DISTRICT OF CALIFORNIA
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF CALIFORNIA
DAVID M. KOEPKE
Plaintiff, CIV NO. 8-88-1084 EJG/GGH
BECTON, DICKINSON and MEMORANDUM OF DECISION
COMPANY, AND ORDER AFTER HEARING
Defendant.
FORSTER, JONES, ORAVETZ,
PECKELS, WHITE, WILLIAMS and
ZUCHT,
Movants to intervene
for purposes of appeal.
JACKSON, KARCH, DUNMEYER,
FK.ENTALA, PERRET, JOHNSON,
FURUTA and PROCALO,
Movants to intervene.
This matter was before the court on April 29, 1994,
for hearing on the following motions: (1) defendant’s motion
C-26
for reconsideration of the March 28, 1994, Order After
Hearing denying summary judgment for defendant on
plaintiff's seventh cause of action (breach of fiduciary duty),
ninth cause of action (conversion), eleventh cause of action
(fraud), and prayer for punitive damages; (2) motions of
movant intervenors Forster, Jones, Oravetz, Peckels, White,
Williams, and Zucht to intervene for purposes of appeal; (3)
motions of movant intervenors Jackson, Karch, Dunmeyer,
Kentala, Perret, Johnson, Furuta and Procalo to intervene as
of right (F.R.Civ.P. 24(a)(2)); and (4) motion of movant
intervenors Jackson, Karch, Dunmeyer, Kentala, Perret,
Johnson, Furuta and Procalo for permissive intervention
(F.R.Civ.P. 24(b)). This Memorandum Decision and Order
After Hearing will address each issue seriatim.
1. Motion for reconsideration.
After oral argument, this court took under submission
defendant’s motion for reconsideration, to further consider
the case of Watts v. International Health Services, 1994 WL
90060 (N.D. Cal.) (not reported in F. Supp.).
Defendant seeks reconsideration of our order denying
summary judgment on plaintiff's claims for conversion,
breach of fiduciary duty, and fraud, and on plaintiff's prayer
for punitive damages. With regard to the conversion and
breach of fiduciary duty claims, defendant challenges this
court’s June 18, 1991, Order After Hearing ruling that
C-27
monies were "taken" from the 1979 Region 9 bonus pool to
pay management. This court is not inclined to revisit that
decision, for reasons stated on the record during the March
25, 1994, law and motion hearing on defendant’s motion for
relief from stipulations and orders.
With regard to the fraud claim and the prayer for
punitive damages, defendant contends that our denial of
summary judgment motion showed no consideration of the
recent California Supreme Court decision of Hunter v. Up-
Right, 6 Cal. 4th 1174, 26 Cal. Rptr. 2d 8 (Cal. 1993). This
court has in fact considered that decision, but finds the case
limited to the employment termination setting. Defendant
now requests that we extend the Up-Right holding to all suits
by employees against employers arising out of the
employment contract. Defendant cites as authority the case
of Watts v. International Health Services, 1994 WL 90060
(N.D. Cal.). The Watts opinion, however, fails to indicate
whether or not it addresses an employment termination
scenario, and thus provides no clear support for defendant’s
position. In essence, defendant asks that we make new law,
ruling that policy considerations require extension of Up-
Right to all employment cases. This court declines to do so.
For all the foregoing reasons, defendant’s motion for
reconsideration is DENIED.
C-28
2. Motions to intervene for purposes of appeal.
For reasons stated in open court on the record, the
motions of movant intervenors Forster, Jones, Oravetz,
Peckels, White, Williams and Zucht to intervene for purposes
of appeal are GRANTED. Movant intervenors’ request for
notice to former class members is DENIED.
3. Motions to intervene as of right.
For reasons stated in open court on the record, the
motions of movant intervenors Jackson, Karch, Dunmeyer,
Kentala, Perret, Johnson, Furuta, and Procalo to intervene as
of right, pursuant to F.R.Civ. P. 24(a)(2), are DENIED.
Movant intervenors Jackson, Karch, Dunmeyer,
Kentala, Perret, Johnson, Furuta, and Procalo seek leave for
permissive intervention. Permissive interverition requires (1)
an independent ground for jurisdiction; (2) a timely motion;
and (3) a common question of law and fact between the
movant’s claim or defense and the main action. Beckman
Industries, Inc. v. International Ins. Co., 966 F.2d 470 (9th
Cir. 1992). As this court noted on the record in the April 29,
1994 hearing, the first requirement is not here met because
the compiaints in intervention fail to allege facts showing an
independent basis for jurisdiction. This court’s prior ruling
of September 17, 1993, established that supplemental
jurisdiction is available for plaintiff Koepke alone.
C-29
Supplemental jurisdiction is not availabie for movant
intervenors.
This court recognizes that 28 U.S.C. § 1953
establishes a liberal policy of free amendment to correct
defective allegations of jurisdiction. See also F.R.Civ.P. 15;
Fidelity & Casualty Co, v. Reserve Ins. Co., 596 F.2d 914
(9th Cir. 1979). However, it is worth noting that this court
has balanced the equities, and within its discretion is inclined
to deny permissive joinder, for reasons stated on the record
in open court. Having considered the merits, this court
believes no purpose would be served in movants amending
their complaints in intervention to correct the jurisdictional
allegations. Therefore, in the interests of judicial economy,
the motion for permissive intervention, of Jackson, Karch,
Dunmeyer, Kentala, Perret, Johnson, Furuta, and Procalo is
DENIED WITH PREJUDICE.
IT IS SO ORDERED.
Dated: May 4, 1994.
EDWARD J. GARCIA, JUDGE
UNITED STATES DISTRICT COURT
C-30
[FILED 6/10/94
9TH Circuit]
U.S Court of Appeals Docket Number:
US.D.Ct. (E.D. Cal.)
Number: CIVS 88-1084 EJG/GGH
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID M. KOEPKE,
Plaintiff,
HERBERT W. DUNMEYER, KERRY T. FURUTA,
JULIE ENDER JACKSON, GARY L. JOHNSON, TERRY
B. KARCH, DAVID K. KENTALA, BRUCE A. PERRET,
ERNEST R. PROCALO
Individual Intervenor Appellants,
RICHARD A. FORSTER, GARY C. JONES,
RAY A. ORAVETZ, ROBERT M. PECKELS, JR.,
JERE C. WHITE, JAMES D. WILLIAMS,
JOSEPH B. ZUCHT, II,
Former Class Member Intervenor Appellants,
vs.
BECTON, DICKINSON and COMPANY,
a foreign corporation,
Defendant/Appellee.
C-31
REPRESENTATION STATEMENT OF COUNSEL
FOR JOINT APPELLANTS
James M. Thomas
SCHWABE, WILLIAMSON, FERGUSON & BURDELL
1420 Fifth Avenue, Suite 3400
Seattle, WA 98101
Telephone: (206) 622-1711
Attorneys for Plaintiff/Appellants
COMES NOW James M. Thomas of Schwabe,
Williamson, Ferguson & Burdell, and states, pursuant to
F.R.A.P. 12(b), he represents the following named
individual appellants:
Herbert W. Dunmeyer Richard A. Forster
Kerry T. Furuta Gary C. Jones
Julie Ender Jackson Ray A. Oravetz
Gary L. Johnson Terry B. Karch
Robert M. Peckels, Jr. Jere C. White
David K. Kentala James D. Williams
Bruce A. Perret Joseph B. Zucht, II
Ernest R. Procale
RESPECTFULLY SUBMITTED this 15th day of
June, 1994.
SCHWABE, WILLIAMSON, FERGUSON
& BURDELL
By
JAMES M. THOMAS, WSBA: 7512
Attorneys for Appellants
C-32
I certify that a copy of this Representation Statement
of Counsel for Joint Appellants was submitted to the Clerk
of the U.S. Court of Appeals, and that it was served on each
party/counsel as follows:
Counsel for Defendant/Appellee Becton Dickinson and
Company:
Donald R. Ware
Foley, Hoag & Eliot
One Post Office Square
Boston, MA 02109
Telephone: (617) 482-1390
Bruce W. Belding
Graham & James
One Maritime Plaza, Suite 300
San Francisco, CA 94111
Telephone: (415) 954-0200
Via United States Mail, postage prepaid, on this the 15th day
of June, 1994.
KATHY TENDICK
C-33
(FILED 8/15/94]
CLERK
U.S. DISTRICT COURT FOR THE EASTERN
DISTRICT OF CALIFORNIA
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF CALIFORNIA
DAVID M. KOEPKE )
)
Plaintiff, ) CIV NO. §-88-1084 EJG/GGH
)
BECTON, DICKINSON and ) ORDER AFTER HEARING
COMPANY, )
Defendant.
Ne Nee ee ee”
This matter was before the court on August 12, 1994,
for hearing on plaintiffs motion for partial summary
adjudicaticn of issues. James Thomas appeared on behalf of
plaintiff. Donald Ware appeared on behalf of defendant.
After considering the parties’ written and oral arguments and
the record in this matter, and for the reasons stated in the
court’s oral analysis in open court on the record, the court
entered the following order.
1. Plaintiffs motion for partial summary
adjudication of issues is granted in part and denied in part.
C-34
The court finds that plaintiff is entitled to 14% of the Region
9 Sales Representatives’ Bonus pool for 1979 and that the
amount he is owed is $7,832. However, to the extent
plaintiff seeks a determination of liability on the section 203
claim, the motion is denied.
* Defendant’s motion for reconsideration of the
magistrate judge’s July 21, 1994 discovery order is denied.
IT IS SO ORDERED.
Dated: August 12, 1994
EDWARD J. GARCIA, JUDGE
UNITED STATES DISTRICT COURT
C-35
[FILED 9/22/94]
CLERK
EASTERN DISTRICT OF CALIFORNIA
BRUCE W. BELDING (34539)
GRAHAM & JAMES
One Maritime Plaza, Suite 300
San Francisco, California 94111
Telephone: (415) 954-0200
DONALD R. WARE (Pro Hac Vice)
CLAIRE LAPORTE (Pro Hac Vice)
FOLELY, HOAG & ELIOT
One Post Office Square
Boston, Massachusetts 02109
Telephone: (617) 482-1390
Attorneys for Defendant
BECTON, DICKINSON AND COMPANY
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
DAVID M. KOEPKE, No. CIVS-88-1084 EJG-GGH
Plaintiff,
)
)
)
) MOTION FOR ENTRY OF ORDER
) OF VACATUR AND DISMISSAL
)
)
)
)
)
Vv.
BECTON, DICKINSON
AND COMPANY,
Defendant.
)
Defendant Becton, Dickinson and Company ("BD")
respectfully requests that the Court enter an order, in the
C-36
form attac*ved hereto, vacating all prior orders, vacating all
stipulations entered into by BD, and dismissing the action
with prejudice.
Respectfully submitted,
FOLEY, HOAG & ELIOT
By:
(Pro Hac Vice)
Dated: September 21, 1994
Plaintiff David M. Koepke assents to this motion.
MEMERING, VARANINI, CROWLE
& TRIMBLE
By:
Bruce L. Shaffer
Dated: September 22, 1994
C-37
[FILED 9/22/94}
CLERK
EASTERN DISTRICT OF CALIFORNIA
BRUCE W. BELDING (34539)
GRAHAM & JAMES
One Maritime Plaza, Suite 300
San Francisco, California 94111
Telephone: (415) 954-0200
DONALD R. WARE (Pro Hac Vice)
CLAIRE LAPORTE (Pro Hac Vice)
FOLELY, HOAG & ELIOT
One Post Office Square
Boston, Massachusetts 02109
Telephone: (617) 482-1390
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
DAVID M. KOEPKE, No. CIVS-88-1084 EJG-GGH
Plaintiff,
PROOF OF PERSONAL SERVICE
We
BECTON, DICKINSON
AND COMPANY,
)
)
)
)
)
)
)
)
)
Defendant. - )
)
)
I ara a citizen of the United States and am employed in the
Cov.aty of Sacramento. I am over the age of eighteen years
anx not a party to the within-entitled action. My business
C-38
address is Radio Flyers, 915 L Street, Suite C-405,
Sacramento, California 95814.
On September 22, 1994, I served a copy of the
following: NOTICE FOR ENTRY OF ORDER OF
VACATUR AND _ DISMISSAL; DEFENDANT’S
MEMORANDUM IN SUPPORT OF MOTION FORENTRY
OF ORDER OF VACATUR AND DISMISSAL; and
ORDER by personally delivering the documents to the
following party(ies):
Bruce L. Shaffer
Memering, Varanini, Crowle & Trimble
2720 Gateway Oaks Drive, #300
P.O. Box 590
Sacramento, CA 95833
Executed on September 22, 1994, at Sacramento,
Ca *orn’s. I declare under penalty of perjury under the laws
of the State of Cal‘riua that the foregoing is true and
correct.
Name
Radio Flyers
C-39
[4D 9/22/94)
CLERK
U.S. DISTRICT COURT FO# THE EASTERN
DISTRICT (%# CALIFORNIA
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF CALIFORNIA
DAVID M. KOEPKE )
Plaintiff, ‘ CIV NO. S-88-1084 EJG’GGH
BECTON, DICKINSON arid ORDER
COMPANY, )
Defendant.
) Hon. Edward J. Garcia
)
)
Having considered the motion for vacatur of all prior
orders and stipulations and dismissal of this action with
prejudice and the memorandum in support of the motion;
having further considered the competing values of finality of
judgment and rig.t to relitigation of unreviewed disputes; and
having FOUND upon such consideration that, in the
circumstances of this action, the right to relitigation of
unreviewed disputes outweighs the interest in finality, it is
HEREBY ORDERED that:
C-40
l. All prior orders entered by this Court and all
prior stipulations entered into by defendant in the above-
captioned matter are and shall be hereby VACATED and
shall have no effect in any other proceedings;
ri No prior order entered by this Court or prior
stipulation entered into by defendant in the above-captioned
matter shall be cited in any other proceeding;
3. The above-captioned matter is and shall be
hereby DISMISSED WITH PREJUDICE; and
4, Neither David M. Koepke nor Becton,
Dickinson and Company shall be awarded costs or attorneys’
fees.
Dated: 9/23/94
EDWARD J. GARCIA,
UNITED STATES DISTRICT JUDGE
D-1
Federal Rules of Appellate Procedure
Rule 3. Appeal as of Right -- How Taken
(a) Filing the Notice of Appeal. An appeal
permitted by law as of right from a district court to a court
of appeals must be taken by filing a notice of appeal with the
clerk of the district court within the time allowed by Rule 4.
At the time of filing, the appellant must furnish the clerk
with sufficient copies of the notice of appeal to enable the
clerk to comply promptly with the requirements of
subdivision (d) of this Rule 3. Failure of an appellant to take
any step other than the timely filing of a notice of appeal
does not affect the validity of the appeal, but is ground only
for such action as the court of appeals deems appropriate,
which may include dismissal of the appeal. Appeals by
permission under 28 U.S.C. § 1292(b) and appeals in
bankruptcy must be taken in the manner prescribed by Rule
5 and Rule 6 respectively.
(b) Joint or Consolidated Appeals. If two or more
persons are entitled to appeal from a judgment or order of a
district court and their interests are such as to make joinder
practicable, they may file a joint notice of appeal, or may
join in appeal after filing separate timely notices of appeal,
and they may therefore proceed on appeal as a single
appellant. Appeals may be consolidated by order of the court
D-2
of appeals upon its motion or upon motion of a party, or by
stipulation of the parties to the several appeals.
(c) Consent of the Notice of Appeal. A notice of
appeal must specify the party or parties taking the appeal by
naming each appellant in either the caption or the body of the
notice of appeal. An attorney representing more than one
party may fulfill this requirement by describing those parties
with such terms as "all plaintiffs," "the defendants," "the
plaintiffs A, B, et al.," or "all defendants except X." A
notice of appeal filed pro se is filed on behalf of the party
signing the notice and the signer’s spouse and minor children,
if they are parties, unless the notice of appeal clearly
indicates a contrary intent. In a class action, whether or not
the class has been certified, it is sufficient for the notice to
name one person qualified to bring the appeal as
representative of the class. A notice of appeal also must
designate the judgment, order, or part thereof appealed from,
and must name the court to which the appeal is taken. An
appeal will not be dismissed for informality of form or title
of the notice of appeal, or for failure to name a party whose
intent to appeal is otherwise clear from the notice.
Rule 4. Appeal as of Right - When Taken
(a) Appeal in a Civil Case. -
(1) Except as provided in paragraph (a)(4) of this
Rule, in a civil case in which an appeal is permitted by law
D-3
as of right from a district court to a court of appeals the
notice of appeal required by Rule 3 must be filed with the
clerk of the district court within 30 days after the date of
entry of the judgment or order appealed from; but if the
United States or an officer or agency thereof is a party, the
notice of appeal may be filed by any party within 60 days
after such entry. If a notice of appeal is mistakenly filed in
the court of appeals, the clerk of the court of appeals shall
note thereon the date when the clerk: received the notice and
send it to the clerk of the district court and the notice will be
treated as filed in the district court on the date so noted.
(2) A notice of appeal filed after the court
announces a decision or order but before the entry of the
judgment or order is treated as filed on the date of and after
the entry.
(3) If one party timely files a notice of appeal, any
other party may file a notice of appeal within 14 days after
the date when the first notice was filed, or within the time
otherwise prescribed by this Rule 4(a), whichever period last
expires.
(4) If any party files a timely motion of a type
specified immediately below, the time for appeal for all
parties runs from the entry of the order disposing of the last
such motion outstanding. This provision applies to a timely
motion under the Federal Rules of Civil Procedure:
D-4
(A) for judgment under Rule 50(b);
(B) to amend or make additional findings of fact
under Rule 52(b), whether or not granting the motion would
alter the judgment;
(C) to alter or amend the judgment under Rule 59:
(D) for attorney’s fees under Rule 54 if a district
court under Rule 58 extends the time for appeal;
(E) for a new trial under Rule 59; or
(F) for relief under Rule 60 if the motion is filed
no later than 10 days after the entry of judgment.
A notice of appeal filed after announcement or entry of the
judgment but before disposition of any of the above motions
is ineffective to appeal from the judgment or order, or part
thereof, specified in the notice of appeal, until the entry of
the order disposing of the last such motion outstanding.
Appellate review of an order disposing of any of the above
motions requires the party, in compliance with Appellate
Rule 3(c), to amend a previously filed notice of appeal. A
party intending to challenge an alteration or amendment of
the judgment shall file a notice, or amended notice, of appeal
within the time prescribed by this Rule 4 measured from the
entry of the order disposing of the last such motion
outstanding. No additional fees will be required for filing an
amended notice.
D-5
(5) The district court, upon a showing of
excusable neglect or good cause, may extend the time for
filing a notice of appeal upon motion filed not later than 30
days after the expiration of the time prescribed by this Rule
4(a). Any such motion which is filed before expiration of
the prescribed time may be ex parte unless the court
otherwise requires. Notice of any such motion which is filed
after expiration of the prescribed time shall be given to the
other parties in accordance with local rules. No such
extension shall exceed 30 days past such prescribed time or
10 days from the date of entry of the order granting the
motion, whichever occurs later.
(6) The district court, if it finds (a) that a party
entitled to notice of the entry of a judgment or order did not
receive such notice from the clerk or any party within 21
days of its entry and (b) that no party would be prejudiced,
may, upon motion filed within 180 days of entry of the
judgment or order or within 7 days of receipt of such notice,
whichever is earlier, reopen the time for appeal for a period
of 14 days from the date of entry of the order reopening the
time for appeal.
(7) A judgment or order is entered within the
meaning of this Rule 4(a) when it is entered in compliance
with Rule 58 and 79(a) of the Federal Rules of Civil
Procedure.
D-6
Rule 27. Motions
(a) Content ¢* Motions; Response. Unless another
form is elsewhere prescribed by these rules, an application
for an order or other relief shall be made by filing a motion
for such order or relief with proof of service on all other
parties. The motion shall contain or be accompanied by any
matter required by a specific provision of these rules
governing such a motion, shall state with particularity the
grounds on which it is based, and shall set forth the order or
relief sought. If a motion is supported by briefs, affidavits
or other papers, they shall be served and filed with the
motion. Any party may file a response in opposition to a
motion other than one for a procedural order [for which see
subdivision (b)] within 7 days after service of the motion, but
motions authorized by Rules 8, 9, 18 and 41 may be acted
upon after reasonable notice, and the court may shorten or
extend the time for responding to any motion.
Federal Rules of Civil Procedure
Rule 23. Class Actions
(a) Prerequisites to a Class Action. One or more
members of a class may sue or be sued as representative
parties on behalf of all only if (1) the class is so numerous
that joinder of all members is impracticable, (2) there are
questions of law or fact common to the class, (3) the claims
D-7
or defenses of the representative parties are typical of the
claims or defenses of the class, and (4) the representative
parties will fairly and adequately protect the interests of the
class.
(b) Class Actions Maintainable. An action may be
maintained as a class action if the prerequisites of subdivision
(a) are satisfied, and in addition:
(1) _ the prosecution of separate actions by
or against individual members of the class would create a risk
of
(A) inconsistent or varying adjudications
with respect to individual members of the class which
would establish incompatible standards of conduct for
the party opposing the class, or
(B) adjudications with respect to individual
members of the class which would as a practical
matter be dispositive of the interests of the other
members not parties to the adjudications or
substantially impair or impede their ability to protect
their interests; or
(2) the party opposing the class has acted
or refused to act on grounds generally applicable to the class,
thereby making appropriate final injunctive relief or
corresponding declaratory relief with respect to the class as
a whole: or
D-8
(3) the court finds that the questions of law
or fact common to the members of the class predominate
over any questions affecting only individual members, and
that a class action is superior to other available methods for
the fair and efficient adjudication of the controversy. The
matters pertinent to the findings include: (A) the interest of
members of the class in individually controlling the
prosecution or defense of separate actions; (B) the extent and
nature of any litigation concerning the controversy already
commenced by or against members of the class; (C) the
desirability or undesirability of concentrating the litigation of
the claims in the particular forum; (D) the difficulties likely
to be encountered in the management of a class action.
(C) Determination by Order Whether Class
Action to be Maintained; Notice: Judgment; Actions
Conducted Partially as Class Actions.
(1) As soon as practicable after the
commencement of an action brought as a class action, the
court shall determine by order whether it is to be so
maintained. An order under this subdivision may be
conditional, and may be altered or amended before the
decision on the merits.
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(2) In any class action maintained under
subdivision (b)(3), the court shall direct to the members of
the class the best notice practicable under the circumstances,
including individual notice to all members who can be
identified through reasonable effort. The notice shall advise
each member that (A) the court will exclude the member
from the class if the member so requests by a specified date;
(B) the judgment, whether favorable or not, will include all
members who do not request exclusion; and (C) any member
who does not request exclusion may, if the member desires,
enter 2% appearance through counsel.
(3) The judgment in an action maintained
as a class action under subdivision (b)(1) or (b)(2), whether
or not favorable to the class, shall include and describe those
whom the court finds to be members of the class. The
judgment in an action maintained as a class action under
subdivision (b)(3), whether or not favorable to the class, shall
include and specify or describe those to whom the notice
provided in subdivision (c)(2) was directed, and who have
not requested exclusion, and whom the court finds to be
members of the class.
(4) When appropriate (A) an action may be
brought or maintained as a class action with respect to
particular issues, or (B) a class may be divided into
subclasses and each subclass treated as a class, and the
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provisions of this rule shall then be construed and applied
accordingly.
(d) Orders in Conduct of Actions. In the
conduct of actions to which this rule applies, the court may
make appropriate orders: (1) determing the course of
proceedings or prescribing measures to prevent undue
repetition or complication in the presentation of evidence or
argument; (2) requiring, for the protection of the members of
the class or otherwise for the fair conduct of the action, that
notice be given in such manner as the court may direct to
some or all of the members of any step in the action, or of
the proposed extent of the judgment, or of the opportunity of
members to signify whether they consider the representation
fair and adequate, to intervene and present claims or
defenses, or otherwise to come into the action; (3) imposing
conditions on the representative parties or on intervenors; (4)
requiring that the pleadings be amended to eliminate
therefrom allegations as to representation of absent persons,
and that the action proceed accordingly; (5) dealing with
similar procedural matters. The orders may be combined
with an order under Rule 16, and may be altered or amended
as may be desirable from time to time.
(e) Dismissal or Compromise. A class action shall
not be dismissed or compromised without the approval of the
court, and notice of the proposed dismissal or compromise
BPO i OR SU YS
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shall be given to all members of the class in such manner as
the court directs.
Rule 24. Intervention
(a) Intervention of Right. Upon timely application
anyone shall be permitted to intervene in an actin: (1) when
a statute of the United States confers an unconditional right
to intervene; or (2) when the applicant claims as interest
relating to the property or transaction which is the subject of
the action and the applicant is so situated that the disposition
of the action may as a practical matter impair or impede the
applicant’s ability to protect that interest, unless the
applicant’s interest is adequately represented by existing
parties.
(b) Permissive Intervention. Upon timely
application anyone may be permitted to intervene in an
action: (1) when a statute of the United States confers a
conditional right to intervene; or (2) when an applicant’s
claims or defense and the main action have a question of law
or fact in common. When a party to an action relies for
ground of claim or defense upon any statute or executive
order administered by a federal or state governmental officer
or agency or upon any regulation, order, requirement, or
agreement issued or made pursuant to the statute or executive
order, the officer or agency upon timely application may be
permitted to intervene in the action. In exercising its
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discretion the court shall consider whether the intervention
will unduly delay or prejudice the adjudication of the rights
of the original parties.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.