Opposition — Batts v. Tow-Motor Forklift Co.

Supreme Court, U.S. *

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NO. 95-1554 apR 2 ie |

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Supreme Court of the Unite

OCTOBER TERM, 1995

-

MYRON BATTS,

Petitioner

Vv.

TOW-MOTOR FORKLIFT COMPANY and

CATERPILLAR INDUSTRIAL, INC.

Respondents

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

John G. Corlew,

Counsel of Record

Frank A. Wood, Jr.

WATKINS & EAGER PLLC

Post Office Box 650

Jackson, Mississippi

39205

Tel: (601) 948-6470

Attorneys for Respondents

QUESTIONS PRESENTED

In a diversity case applying state

law, is the court required to grant

relief from judgment under Federal Rule

of Civil Procedure 60(b)(6) where, after

the case is no longer sub judice, a state

decision in an unrelated case indicates

that state decisional law changed prior

to the date of the federal court trial,

with the result that the federal court

misapplied state law?

Is the answer different where the

losing party has unsuccessfully moved for

a stay pending an anticipated change in

state law?

PARTIES TO PROCEEDING

The petitioner is Myron Batts.

The named respondents are Tow-Motor

Forklift Company and Caterpillar

Industrial, Inc. The correct name of the

entity named by petitioner as Tow-Motor

Forklift Company was Tow-Motor Corp.

Tow-Motor Corp. changed its name to

Caterpillar Industrial Inc. Caterpillar

Industrial Inc. is the successor-in-

interest to Tow-Motor Corp. Caterpillar

Industrial Inc. is wholly-owned by its

parent, Caterpillar Inc. Caterpillar

Industrial Inc. has no non-wholly owned

subsidiaries.

ii

TABLE OF CONTENTS

Questions Presented .....

Parties to Proceeding .

Table of Contents. .

Table of Authorities ....

Opinions Below .

Statement of the Case

Reasons for Denying the Writ

Conclusion

iii

Page

vii

TABLE OF AUTHORITIES

CASES

Page

Adams v. Merrill Lynch Pierce

Fenner & Smith, 888 F.2d 696

(20th Gin. GOSS) 66a. 5

Ashland Oil, Inc. v. Delta

Oil Prods. Corp.,

806 F.2d 1031 (Fed.

Che. SO a 5 a a ek 6

Bailey v. Ryan Stevedoring & Co.,

894 F.2d 157 (5th Cir.) cert.

denied, 498 U.S. 829 (1990) ... 6

Batts v. Tow-Motor Forklift Co.,

66 F.3d 743 (5th Cir. 1995) . . .vii, 2,

&, 3, 6

Batts v. Tow-Motor Forklift Co.,

153 F.R.D. 103 (N.D. Miss

1994) > > . . ° > >. >. >. . >. . > . 2

Collins v. City of Wichita,

254 F.2d 837 (10th Cir. 1958) . . 6

DeWeerth v. Baldinger,

38 F.3d 1266 (2d Cir.) cert.

denied, 486 U.S. 1056 (1994) .. 6

Dowell v. State Farm Fire & Cas.

Auto Ins. Co.,

993 F.2d 46 (4th Cir. 1993)... 6

iv

Klapprot v. United States,

og SR Re ee

Matarese v. LeFevre,

801 F.2d 98 (2d Cir. 1986)

cert. denied, 480 U.S. 908 (1987)

Overbee v. Van Waters & Rogers,

765 F.2d 578 (6th Cir. 1985) ..

Picco v. Globai Marine Drilling

Co.

900 F.2d 846 (5th Cir. 1990) ..

Pierce v. Cook & Co.,

518 F.2d 720 (10th Cir. 1975)

cert. denied, 423 U.S. 1079

PRR to ace as Vig Ss te gg

Ritter v. Smith,

811 F.2d 1398 (llth Cir.),

cert. denied, 483 U.S. 1010

(1987) cs 2 a a ea Re, ale ge og lp

Satcher v. Honda Motor Co., Ltd.,

855 F.Supp. 886 (S.D. Miss.

1994), aff’d in part, rev’d in part

on other grounds, 52 F.3d 1311

(00. Chess ee sk se ee ks

Seese v. Volkswagenwerk, A.G.,

G79 F.26@ 336 (36 Civ. 1962) . . -

Sperry-New Holland v. Prestage,

617 So.2d 248 (Miss. 1993) ...

Tomlin v. McDaniel,

865 F.2d 209 (9th Cir. 1989) se

Wilson v. Al McCord, Inc.,

858 F.2d 1469 (10th Cir. 1988) °

Vv

RULES

Fed. R. Civ. P. 60(b) (6)

Supreme Court Rule 10.

vi

OPINIONS BELOW

The opinions below are properly

identified in the petition, provided that

the third cited opinion -- the decision

for which certiorari review is sought --

is reported as Batts v. Tow-Motor

Forklift Co., 66 F.3d 743 (5th Cir.

1995).

vii

STATEMENT OF THE CASE

After this product liability action

was tried in 1991 to a defense verdict

for the defendant Caterpillar Industrial,

Inc. ("Caterpillar" or "respondent") ,'

affirmed on appeal, and the time to

petition for certiorari had passed,

plaintiff Myron Batts ("Batts" or

“petitioner") filed a Federal Rule of

Civil Procedure 60(b)(6) motion for

relief from judgment on the basis of a

subsequent Mississippi Supreme Court

decision, Sperry-New Holland v. Prestage,

617 So.2d 248 (Miss. 1993). Prestage

stated that applicable Mississippi law

had changed in 1988. The district court

concluded that it had misapplied state

law and granted relief, vacating

judgment. On interlocutory appeal, the

United States Court of Appeals for the

Fifth Circuit reversed, holding that the

district court abused its discretion in

granting relief on the ground of a post-

judgment change in law without more.

Petitioner then filed the instant

petition.

The district court described the

change in Mississippi decisional law from

the "consumer expectations" test to the

"risk-utility" test of strict liability,

‘Tow-Motor Forklift: Company and

Caterpillar Industrial, Inc. were named

as defendants. Caterpillar Industrial

Inc. is the successor-in-interest of Tow-

Motor Corp., incorrectly identified by

plaintiff Batts as Tow-Motor Forklift

Company.

which Prestage in 1993 said occurred in

1988, as "the best kept secret in

Mississippi jurisprudence." Batts v.

Tow-Motor Forklift Co., 153 F.R.D. 103,

106 (N.D. Miss. 1994). The district

court in the 1991 trial of this action

applied the consumer expectations test of

defect in an instruction offered by the

plaintiff. Consistent with the consumer

expectations theory of defect, it also

instructed the jury on the "open and

obvious" defense, i.e., that an open and

obvious danger cannot be unreasonably

dangerous and is a bar to recovery. The

“open and obvious" instructions were

given over Batts’ objection that the

court should extend premises liability

law to products liability. Batts, who

offered the consumer expectations

instruction, cleariy did not argue that

the law had changed to a risk-benefit

test of defect. On appeal Batts did not

-- and could not -- assign the giving of

(his own) consumer expectations

instruction as error.

Respondent Caterpillar incorporates

by reference the statement of facts and

procediral history in the opinion below,

Batts v. Tow-Motor Forklift Co., 66 F.3d

743 (5th Cir. 1995).

REASONS FOR DENYING THE WRIT

The writ should be denied because

there is no compelling reason to grant

it. Petitioner Batts has pointed to no

reason of the character considered by the

Court. See Supreme Court Rule 10. No

conflict with decisions of other circuits

is urged. Petitioner offers no

explanation for his assertion that the

issue is important enough to merit

certiorari review.

The reasons offered by petitioner

for granting the writ are (i) that the

Fifth Circuit’s holding is inconsistent

with the purpose of Rule 60(b)(6) to

accomplish justice, and (ii) that the

lower federal courts have inconsistently

interpreted Rule 60(b)(6) in the context

of a post-decision change or

clarification in controlling law. Both

lack foundation. Neither supports

certiorari review.

Petitioner’s first argument § in

effect is that the Fifth Circuit’s

holding of abuse of discretion is in

error. The primary purpose of certiorari

review is not to correct error but to

resolve conflicts and determine questions

of importance. The misapplication of a

properly stated rule of law, as alleged

here, rarely supports grant of

certiorari. See Supreme Court Rule 10.

Respondent Caterpillar agrees that

the purpose of Rule 60(b)(6) is "to

enable [courts] to vacate judgments

whenever such action is appropriate to

accomplish justice," Klapprot v. United

3

States, 335 U.S. 601-614-15 (1949), but

disagrees that vacating judgment was

appropriate to accomplish justice in this

case. The Fifth Circuit properly

concluded that the required showing of

injustice is "substantial" and properly

held that the trial court abused its

discretion in granting relief on the

basis of a post-judgment change in law

without more. Batts v. Tow-Motor

Forklift Co., 66 F.3d 743, 748, 749 (5th

Cir. 1995). Contrary to petitioner’s

assertion, the numerous Rule 60(b) (6)

cases addressing post-judgment change in

law in different circumstances (many of

which are cited herein) define the scope

of discretion under Rule _ 60(b) (6).

Petitioner’s first argument does not

merit certiorari review.

Petitioner’s second argument stops

short of alleging there is a conflict of

decisions, as it must, and asserts

instead that the lower courts have

applied Rule 60(b)(6) to post-judgment

change of law inconsistently. Even the

allegation of inconsistency is

overstated. The "inconsistency" is

accounted for by differences in the

circumstances attending each case.

Indeed, petitioner’s own statement of the

rule is that a post-decision change or

Clarification in controlling law “may, in

appropriate cases" warrant Rule 60(b0(6)

relief. See Petition at 12.

Below, the Fifth Circuit

distinguished several of the cases which

petitioner claims demonstrate

inconsistency. 66 F.3d at 748 n. 6. The

Fifth Circuit noted that courts have held

a post-judgment change in law constituted

an extraordinary circumstance justifying

relief: in the context of a petition for

habeas corpus, where notions of finality

have no place, Matarese v. LeFevre, 801

F.2@ 98, 106 (2d Cir. 1986), cert.

denied, 480 U.S. 908 (1987); where the

erroneous judgment has not been executed,

where an appeal or remand of the case is

still pending, or the judgment is not

final, e.g., Adams v. Merrill Lynch

Pierce Fenner & Smith, 888 F.2d 696, 702

(10th Cir. 1989); Wilson v. Al McCord,

Inc., 858 F.2d 1469, 1478-79 (10th Cir.

1988); Overbee v. Van Waters & Rogers,

765 F.2d 578, 580 (6th Cir. 1985); where

the subsequent decision is closely

related to the case in question, such as

where the Supreme Court resolves a

conflict between another circuit ruling

and that case, Ritter v. Smith, 811 F.2d

1398, 1402-03 (llth Cir.), cert. denied,

483 U.S. 1010 (1987); or where two cases

arising out of the same transaction

result in conflicting judgments, Pierce

v. Cook & Co., 518 F.2d 720, 723 (10th

Cir. 1975), cert. denied, 423 U.S. 1079

(1976). See Batts, 66 F.3d at 748 n.6.

Each of these cases involved

extraordinary circumstances not present

in Batts’ case. Further, no case

suggests that an unsuccessful motion for

a stay pending an anticipated change in

law constitutes an extraordinary

circumstance justifying relief.

Far from inconsistent, the Fifth

Circuit’s application of Rule 60(b) (6) in

this case is entirely consistent with

application of the rule by other circuits

in similar circumstances. The Fifth

Circuit correctly noted its consistency

with its own decisions, Bailey v. Ryan

Stevedoring & Co., 894 F.2d 157, 160 (5th

Cir.), cert. denied, 498 U.S. 829 (1990);

Picco v. Global Marine Drilling Co., 900

F.2d 846, 851 (5th Cir. 1990); and those

of other circuits, DeWeerth v. Baldinger,

38 F.3d 1266, 1272-74 (2d Cir.), cert.

denied, 486 U.S. 1056 (1994); Dowell v.

State Farm Fire & Cas. Auto Ins. Co., 993

F.2d 46, 48 (4th Cir. 1993); Seese v.

Volkswagenwerk, A.G., 679 F.2d 336, 337

(3d Cir. 1982); Tomlin v. McDaniel, 865

F.2d 209, 211 (9th Cir. 1989); Ashland

Oil, Inc. v. Delta Oil Prods. Corp., 806

F.2d 1031, 1033-34 (Fed. Cir. 1986);

Collins v. City of Wichita, 254 F.2d 837,

839 (10th Cir. 1958). See Batts, 66 F.3d

at 747-48, 749, 750.

The general rule applied in these

decisions is that a post-judgment change

in law without more does not justify

relief from judgment. The Fifth

Circuit’s decision in this action is

particularly consonant with the Second

Circuit’s decision in DeWeerth that a

"clarification" of state law after a case

is no longer sub judice does not justify

Rule 60(b)(6) relief. See DeWeerth, 38

F.3d at 1272-74.

Because the decision below was not

in. conflict with, but was entirely

consistent with, decisions of the Fifth

Circuit and other circuits, petitioner’s

second argument lacks merit.

While federal procedural matters

presenting conflicting decisions, or

novel or difficult questions may be

6

sufficiently important to merit

certiorari review, the issue petitioner

would place before the Court presents

neither a conflict nor novel or difficult

questions. The circuit courts of appeal

in the exercise of their discretion have

dealt often and consistently with the

issue, as established above.

Accordingly, the petition does not

present an “important matter" or

“important question" and is not

certworthy. See Supreme Court Rule 10.

In addition, an omission of fact in

the petition could result in this Court’s

not reaching the question presented if

the writ were granted. Petitioner omits

the fact that the case was tried under a

consumer expectations analysis on his own

instruction. If the law changed in 1988,

petitioner was in error in offering a

consumer expectations instruction. He

cannot obtain a new trial under a risk-

benefit theory when the case was tried

under a consumer expectations theory on

the basis of a jury instruction he

requested. Satcher v. Honda Motor Co.,

Ltd., 855 F.Supp. 886, 894-95 (S.D. Miss.

1994), aff‘d in part, rev’d in part on

other grounds, 52 F.3d 1311 (5th Cir.

1995).

CONCLUSION

Respondent Caterpillar respectfully

submits that petitioner has failed to

establish any compelling reason for

granting a writ of certiorari. The

petition should therefore be denied.

ee ee

Respectfully submitted,

John G. Corlew,

Counsel of Record

Frank A. Wood, Jr.

WATKINS & EAGER PLLC

Post Office Box 650

Jackson, Mississippi 39205

Tel: (601) 948-6470

Attorneys for Respondents