Petition for Writ of Certiorari — Kehs v. Foster

93153'7 MAR 2 9 1994

No. 93-

0. 93-___eesice OF THE CLERK

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1993

ROBERT D. KEHS, KENNETH LEBON, AND STEVEN

C. BILLINGS,

Petitioners,

Vv.

LARRY EUGENE FOSTER, ROBERT STEWART BLOEMER,

JAMES CAMPBELL, NORTHWEST AIRLINES, INC., and

AIR LINE PILOTS ASSOCIATION, INTERNATIONAL,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit

PETITION FOR WRIT OF CERTIORARI

Richard Frye Watt

Counsel of Record

Wesley Kennedy

Kelly J. Hupfeld

Cotton, Watt, Jones &King

Suite 2050

122 South Michigan Avenue

Chicago, Illinois 60603

(312) 427-5100

Counsel for Petitioners

QUESTIONS PRESENTED

1. Whether, consistent with Rules 12(b) and 56, F.R.Civ.P.

and this Court’s decisions in Matsushita Elec, Indust. Co., Ltd. v.

Zenith Radio Corp,, 475 U.S. 574 (1986), Anderson v. Liberty

Lobby, 477 U.S. 242 (1986), and Celotex Corp. v, Catrett, 477

U.S. 317 (1986), a District Court may grant a defendant’s motion

for summary judgment, where: the motion is brought before the

plaintiff has had a full opportunity for discovery; the defendant fails

to identify those material facts which it asserts are not in dispute;

the District Court, by denying a timely request for continuance

pursuant to Rule 56(f), F.R.Civ.P. and simultaneously granting the

motion for summary judgment, deprives the plaintiff of any

meaningful opportunity to respond substantively to the motion; and

the motion is denominated as one to dismiss or, alternatively, for

summary judgment and is sspported by factual matter extraneous to

the pleadings, and the District Court grants the motion in both of its

alternative aspects, without giving notice of how the extraneous

factual matter will be treated.

2. Whether, under a labor arbitration agreement containing an

express time limit for the issuance of the arbitrator’s award, the

question of an award’s timeliness is an issue of substantive

arbitrability for a court or an issue of procedure for the arbitrator,

where: the agreement by its terms excludes an award’s timeliness

from the arbitrator’s authority to determine matters of “procedure;"

the parties and the arbitrator previously treated the time limit for

issuance of an award as mandatory; and the arbitrator expressly

assured the parties that he would secure their consent to any

departure from the contractual time limit for issuance of an award.

LIST OF PARTIES

Petitioners herein were plaintiffs-appellants in the court below.

Respondents herein were defendants-appellees in the court below.

Respondent Northwest Airlines, Inc. is a subsidiary of NWA, Inc.

PAGE

ho ere i

Es hn coh a ve nde cs eee wee yeees ii

I ats as OS, sg eidlaeles wee iil

pe oy. EE vi

ee OVEN pg db be Wve ec ee l

ne Ce ee ies g Ge Sela’ ee ease l

EE l

re 2

The Roberts Award and the Dispute Resolution

EES a rs 2

Supplemental Awards Nos. 8 and9 ............. 4

The Proceedings in the District Court ............ 4

The Proceedings in the Court of Appeals .......... 7

REASONS FOR GRANTING THE WRIT ...........

THE DECISION BELOW CONFLICTS WITH

DECISIONS OF THIS COURT AND OTHER

COURTS OF APPEALS ON IMPORTANT ISSUES

UNDER THE FEDERAL RULES OF CIVIL

FUE S60 .:0.4:0 40a one ee RR

A. Matsushita, Anderson, and Celotex Increased The

Quantum of Evidence With Which a Party Must

Respond to a Summary Judgment Motion ... .

B. The Decision Below Conflicts With Anderson and

Celotex and Subsequent Decisions of Courts of

TE io 4 A Oe ee

1. Summary Judgment May be Entered Only

after a Full Opportunity for Discovery

a. The Importance of a Full Opportunity for

vas wictsie aw ae 4S oa8

b. The Increased Importance of Rule 56(f)

2. The Moving Party Must Identify the Facts

Asserted to be Undisputed ...........

3. In the Face of an Alternative Motion to

Dismiss or for Summary Judgment Supported

by Extraneous Material, a District Court Must

Give Notice of Its Treatment of That

NEE Gx bono a os es 6 ee ee a

iV

12

12

13

15

Il. THE COURT OF APPEALS’ CONCLUSION THAT

THE TIMELINESS OF AN ARBITRATION AWARD

IS AN ISSUE OF PROCEDURE FOR THE

ARBITRATOR RAISES ISSUES OF MAJOR

PUBLIC IMPORTANCE CONCERNING THE ROLE

OF THE COURTS IN LABOR ARBITRATION, AND

IS IN CONFLICT WITH DECISIONS BY OTHER

COS Ge PPO UI 50:0 6.6) bp 0 wo we ee 20

A. The Eighth Circuit’s Characterization of the Issue

as one of Procedure is in Conflict With Other

I re 80 oe le eee eek eo 20

B. The Decision Below Raises Important Questions of

Labor Contract Interpretation............ 23

Ge A x srs yo putas oa cs hs ee eae 25

APPENDIX A- OPINIONS BELOW ............. A-|

PAGE

Cases

Alabama Farm Bureau Mutual Casualty Co.

american Fidelity Life I o..

606 F.2d 602 (Sth Cir. 1979),

cert. denied, 449 U.S. 820 (1980) ............... 13

Ge A 8k ae) ee 22

nc.,

i kg ie eee we ee Passim

i nc. Vv munication

Workers, 475 U.S. 643 (1986) .............. 20, 22

Automobile, Transport Chauffeurs,

Demonstrators & Helpers Local Union

No, 604 v, Placke Chevrolet Co., Inc.,

382 F.Supp. 1156 (E.D.Mo. 1974) .............. 22

Vv rci rriers, Inc.,

re Pe we ee hee bean 22

Beatty v, Washington Metropolitan Area

Gk ed | 16

Brotherhood of Railway Clerks v. Norfolk

& Southern Railway Co.,

ae oe wee eure. 1066) 2... wc ec ees 21

vi

= ~~~." om

818 F.2d 1466 (9th Cir. 1987), cert. denied,

ES 10

Carter v, Stanton,

RES eS ee a de a 18

Celotex Corp, v, Catrett,

SEL a a a Passim

Consolidated Rail Corp. v. Railway Labor

Exec ti Bs” Ass'n,

ES 23

m Bushmell

v. Providers Fidelity Life Ins.Co.,

ee 13

Ww ’

Tae F.20 iSeries Cer. 1906) ............. 13, 14

roi Vv M No. 82,

594 F.2d 575 (6th Cir.), cert. denied,

ee 21

ia Vv Retiremen rd,

638 F.Supp. 485 (D.Conn. 1986) ............ 17, 18

Nev In

y. Teamsters Local 631,

re 22

First Chi nternational v. Unit

Exchange Co., Ltd.,

S36 F.2d 1375 (D.C.Cir. 1988) ........... 12-13, 14

Vii

Garrett v. San Francisco,

818 F.2d 1515 (9th Cir. 1987) ............0000. 14

Glen Eden Hospital, Inc. v. Blue Cross

& Blue Shield of Mich; —g

po EE ee 14

G Union Mutual Life Insur Co.

, PR eS ere 17

Grinnell Housing Development Fund Corp. v.

Local 32B-32J, SEIU,

767 F.Supp. 673 (S.D.N.Y. 1991)............... 21

W ilw :

PEE eS 21

i-Ri mpl Local

y. Fontainbleau Hotel Corp.

eT ee 22

623 F.2d 335 (4th Cir. 1980) ...............--. 21

IBEW Local 637 v. Davis H. Wlliot Co., Inc.,

127 CCH Lab.Cases ¢ 10,952 (4th Cir. 1993) ....... 22

I ‘onal Union of Petrol % Industrial

378 F.Supp. 1278 (C.D.Cal. 1973) .............. 22

Wi v. Livingston,

a rae Passim

Jones v. Automobile Insurance Co.

917 F.2d 1528 (1lth Cir. 1990) ............. 10, 18

x |

merase eee wee. ................. 21

841 F.2d 1169 (Ist Cir. 1988) ................. (2

830 F.2d 977 (9th Cir.), cert. denied, ;

eS 10

n aA?

939 F.2d 376 (6th Cir. 1991).................. 12

546 F.2d 1107 (2d Cir. 1977).................. 22

a |

852 F.2d 871 (6th Cir. 1988)............... 22, 25

415 F.2d 220 (3d Cir. 1969) .................. 21

Lodge No, 725, JAM v. Mooney Aircraft, Inc.,

mIaAmMaea es) ................. 21

ial Vv nith

ee i 9

Vv nternational

969 F.2d 831 (9th Cir. 1992)............. 7, 22. 25

Vv j ;

823 F.2d 693 (Ist Cir. 1987)................. 13

ix

Murrell v, Bennett,

O65 F ae eee, Me ee ee 13

162 F.2d 695 (8th Cir. 1985) .........-.eeeeee- 23

Palucki v. Sears, Roebuck & Co.,

879 F.2d 1568 (7th Cir. 1989) ................. 11

See 2 oe ie epee 22

Vv 1 144 |

Hospital, Nursing H & Allied Services Union.

132 LRRM 2744 (S.D.N.Y. 1989)............. 21

787 F.Supp. 283 (D.R.1.),

aff'd mem., 966 F.2d 1440

I ear Og Fe lat or ah a ae ie aeter 11

Pochahontas Supreme Coal Co. v. Bethlehem Steel,

ee ae ee ae, TODD oo ccc awk sen vces 16

Sames v. Gamble,

732 F.2d 49 (3d Cir. 1984) ................ 13, 14

Vv rnational Brotherh

of Teamsters Local 332,

GSO F.Supp. 753 (6.D.Mich. 1906) ......2-ceeeees 21

Schering Corp, v. Home Insurance Co.,

yy SORE OP, | Ia eee eee > 13

Schlagenhauf v. Holder,

Sra ee ss oe ee ae ee 7

re 21

618 F.Supp. 1534 (D.Minn. 1985),

810 F.2d 1437 (8th Cir. 1987), cert. denied.

eC 17, 18

363 U.S. 564 (1960) ............. URS? ode 20

i ,

5 a eae 22

Vv ise Wheel g :

eee ar era al 20

i n rin :

FT eae aere armen 20, 23

886 F.2d 1472 (6th Cir. 1989) ............ 10, 11, 14

a

851 F.2d 1526 (Sth Cir. 1988) ................. 10

v. Li Mills of Alabama,

————— eee 20, 23

985 F.2d 330 (7th Cir. 1993) .................. i

ific Rai /

eg Sa 20, 23

xi

Volt Inf ion Sci Board of T

Leland Stanford Junior University,

av ececens 25

Wellmaker v, Dahill,

836 F.Supp. 1375 (N.D.Ohio 1993).............. 17

406 F.2d 284 (2d Cir. 1968) ............... 2

= wi

520 F.2d 289 (8th Cir. 1975),

cert, denied, 424 U.S. 915 (1976) ............ 13, 14

- cae

954 F.2d 349 (6th Cir. 1992) ...........- cece. 16

Windon Third Oil & Gas Co. v. FDIC,

805 F.2d 342 (10th Cir. 1986),

cert, denied, 480 U.S. 947 (1987) ............... 16

Yashon v, Gregory,

ee ee ee a, SOD. n diwie S dle wh -cawlewee 15

Statutes

Railway Labor Act, 45 U.S.C. §§ ISl ef seq. ....... 1, 2-3

Rule 12, Federal Rules of Civil Procedure.......... Passim

Rule 54, Federal Rules of Civil Procedure............ 1,6

Rule 56, Federal Rules of Civil Procedure.......... Passim

Rule 59, Federal Rules of Civil Procedure............. 6

RE SEND ISERIES a gerce Wp any iy Aer es regen ey ies PR Pea l

xii

OP a ales duties beee See Cie vee. I

oe ee a a NE dO be ras ke cae I

Other Authorities

Calkin, Summary Judgment, Motions to Dismiss,

{ Other Examples of Equilibrating Tendenci

MGMEELEUEEGMD ................... 14

Childress, A New Era for Summary Judgments:

116 F.R.D. 183 (1987) ...... . ss... 10

Cox, Reflections Upon Labor Arbitration,

ye. 22, 23

Issacharoff & Loewenstein,

nt,

We dk reece. 10

Stern, Gressman, Shapiro & Geller,

Supreme Court Practice, (7th ed. ES 7, 13

SA Wright & Miller,

Federal Practice & Procedure (1990) ............. 18

10A Wright, Miller & Kane,

Federal Practice & Procedure (2d ed. 1983) ......... 14

10A Wright, Miller & Kane,

Federal Practice & Procedure (1993 ee 10

xiii

PETITION FOR WRIT OF CERTIORARI

Petitioners respectfully pray that a writ of certiorari issue to

review the judgment and opinion of the United States Court of

Appeals for the Eighth Circuit, entered on January 28, 1994.

OPINIONS BELOW

The opinion of the Court of Appeals is unreported; it is

reprinted in Appendix A. (App. A, at A-1 et seq.) The decision of

the United States District Court for the District of Minnesota

(Renner, J.) consists of four unreported Orders, entered on October

19, December 3 and December 21, 1992, and January 11, 1993;

those Orders are reprinted in Appendix A. (App. A, at A-4 er seq.)

IURISDICTION

Petitioners brought this action in the United States District

Court for the District of Minnesota pursuant to the Railway Labor

Act, 45 U.S.C. §§ 151 et seg., and 28 U.S.C. §§ 1331 and

1337(a). The District Court granted the motion of the individual

respondents to dismiss or, alternatively, for summary judgment, and

certified its decisions pursuant to Rule 54(b), F.R.Civ.P. Timely

Notices of Appeal were filed on January 8 and 20, 1993. The

United States Court of Appeals for the Eighth Circuit had

jurisdiction pursuant to 28 U.S.C. § 1291. On January 28, 1994,

the Court of Appeals affirmed the decision of the District Court.

This Court has jurisdiction to review the decision of the Court of

Appeals under 28 U.S.C. § 1254(1).

STATUTES INVOLVED

This action involves, inter alia, the interpretation of Rules

12(b) and 56 of the Federal Rules of Civil Procedure, which are

reprinted, in pertinent part, in Appendix B.

STATEMENT OF THE CASE

This action arises from the integration of the pilot seniority

lists of respondent Northwest Airlines, Inc. ("Northwest" or the

“Company") and Republic Airlines, Inc. ("Republic") following

Northwest's acquisition of and merger with Republic. Petitioners

are the Merger Representatives of the pre-merger Northwest pilots.

The individual respondents (the “Republic Representatives") are the

Merger Representatives of the former Republic pilots. The other

respondents (named as defendants because they are parties to the

arbitration agreement in issue) are the Company and the Air Line

Pilots Association, International ("ALPA"), the pilot groups’

bargaining representative.

The Roberts Award and the

Dispute Resolution Agreement

The Northwest/Republic merger was cojsummated on

August 12, 1986, necessitating the integration of the pilot seniority

lists. Pursuant to ALPA’s Merger Policy, the lists were integrated

by arbitration between the pilot groups’ Merger Representatives

before an Arbitration Board chaired by neutral Thomas T. Roberts.

The Board conducted 57 days of hearings, concluding on February

19, 1988. On November 6, 1989, Mr. Roberts issued his award

(the "Roberts Award"), integrating the lists based on each pilot’s

pre-merger date of hire, and imposing a series of "Conditions and

Restrictions,” effective until January 1, 2006, in order to render the

date-of-hire list fair and equitable. (JA 262 et seq.)'

On April 26, 1990, as an essential condition of the

Company's acceptance of the Roberts Award, the parties executed

an agreement (the "Agreement”) pursuant to the Railway Labor Act,

Citations to the Joint Appendix in the Court of Appeals are denominated

"JA [page no.].”

45 U.S.C. §§ 151 et seq., establishing procedures for the resolution

of disputes under the Roberts Award. The Agreement established

a Dispute Resolution Committee (the "DRC"), consisting of

representatives of the two pilot groups, to resolve claims concerning

the application, implementation, or interpretation of the Roberts

Award. In the event of a DRC deadlock, the Agreement provided

for arbitration, with Mr. Roberts to chair the Arbitration Board until

March 31, 1992. (JA 356 et seq., 379.)

Given\the 21 months which transpired between the end of

the hearing and the issuance of the Roberts Award, the Agreement

imposed specific time limits on the dispute resolution process,

including Section VII.G.:

The arbitrator shall issue an award in writing within

ten (10) days after the conclusion of the hearing.

All other procedures relating to the arbitration shall

be determined by the arbitrator in consultation with

the parties, or by the arbitrator after such

consultation in the event of lack of expeditious

agreement between the parties. (JA 367.)

A number of arbitrations under the Agreement resulted in

Supplemental Awards. At Mr. Roberts’ request, the parties

stipulated that the 10-day period would in all cases mean ten

"working days;” they also agreed, in particular cases only, to the

calculation of the 10-day period from the date of an executive

session of the Arbitration Board. Prior to the events involved here.

the time limits of the Agreement were treated as mandatory by Mr.

Roberts and the parties, and Mr. Roberts expressly committed that,

if he desired any extension of the 10-day limit, he would secure the

parties’ consent. (JA 195, 201-203, 422-423, 433-434.)

Supplemental Awards Nos, 8 and 9

Supplemental Awards Nos. 8 and 9 precipitated this action.

The hearing leading to Supplemental Award No. 8 concluded on

November 6, 1991; an executive session of the Arbitration Board

was held November 13, 1991. The hearing leading to Supplemental

Award No. 9 concluded on November 12, 1991; an executive

session was held November 24, 1991. In neither case was there a

stipulation that the 10-day period would be counted from the date of

the executive session, or would otherwise be extended. Instead, by

letter dated December 6, 1991 Mr. Roberts claimed the authority

under Section VII.G. of the Agreement unilaterally to “adjust” the

10-day period for issuing an award, and announced that the pending

awards would be issued by December 20, 1991. (JA 479.)

Supplemental Awards Nos. 8 and 9 were issued on

December 17, 1991. Prior thereto, petitioners advised Mr. Roberts

that, the 10-day limit of Section VII.G. of the Agreement having

expired, he had no authority to issue the awards. (JA 481-491.)

The Preceadines in the District Const

On December 27, 1991, petitioners filed a Complaint for

Declaratory and Other Relief, asserting that Supplemental Awards

Nos. 8 and 9 were beyond Mr. Roberts’ authority because, inter

alia, they had been issued beyond the 10-day time limit. On March

6, 1992, petitioners filed a First Amended Complaint, answers to

which were filed on or about April 13, 1992.

2 Subsequent to the filing of the Complaint in this action, Mr. Roberts

convened a hearing, over petitioners’ objections, in response to a letter from

respondent Foster asserting the existence of an arbitrable dispute over the

timeliness of Supplemental Awards Nos. 8 and 9, and issued Supplemental Award

No. 10 reiterating his assertion of authority to adjust the 10-day limit.

4

On June 8, 1992, petitioners served initial Interrogatories

and Document Requests on each respondent; extensions of time

were agreed to for responses to those requests. Thereafter,

petitioners secured leave to file a Second Amended Complaint. In

connection with a pre-trial conference on August 11, 1992,

petitioners described their additional anticipated discovery, and the

Republic Representatives stated that discovery would continue

through December 31, 1992. (JA 635 et seq., 639 et seq.)

On August 21, 1992, respondents served initial discovery

responses, which were incomplete and did not include documents.

Four days later -- before petitioners received any documents or

could follow up on the initial responses -- the Republic

Representatives filed a Motion to Dismiss the Second Amended

Complaint, or, in the Alternative, for Summary Judgment,

Supported by two deposition excerpts and factual materials

extraneous to the pleadings. Northwest also submitted extraneous

material supporting the motion. (JA 708-843, 1085-1089.)

By letter dated September 23, 1992, petitioners advised the

District Court of their assumption, under Rule 12(b), F.R.Civ.P.,

that in light of the extraneous matter supporting the motion, the

motion would be treated as one for summary judgment, and of their

intent to request a continuance pending additional discovery under

Rule 56(f), F.R.Civ.P. Petitioners asked the District Court to

advise them if it intended to treat the motion as one to dismiss. (JA

880 et seq.) There was no response from the District Court.

On October 1, 1992, petitioners filed their Rule 56(f)

Request, supported (as contemplated by Rule 56(f)) by an affidavit

of counsel. (JA 848 et seq., 1044 et seq.) In open court on October

15, 1992, the District Court denied that request, and (though

acknowledging issues of first impression in the Eighth Circuit)

simultaneously granted the Republic Representatives’ motion in

both of its alternative aspects. Except for 15 minutes of oral

5

argument after the District Court had read from a prepared opinion

indicating it would grant the motion, petitioners had no opportunity

to respond substantively. (JA 1114 et seg.) A Judgment Order was

entered on October 19, 1992, dismissing some portions of the

Second Amended Complaint, granting summary judgment with

respect to others, and granting both with respect to still others.

(App.A, at A-4 ef seq.)

On October 29, 1992, petitioners filed a Motion to Alter or

Amend Judgment Pursuant to Rule 59(e), contending that the

District Court erred, inter alia, in treating any portion of the

Republic Representatives’ motion as one to dismiss, where the

motion was cast in the alternative and the court had not excluded the

extraneous material; and in simultaneously denying the Rule 56(f)

request and granting summary judgment. (JA 1163 ef seq.) Ina

Memorandum and Order on December 3, 1992, the District Court

vacated the October 19, 1992 Order and purported to exclude the

extraneous materials, but only as to the claims it had dismissed; the

District Court otherwise denied the motion, and renewed the

substance of its earlier rulings. (App.A, at A-7 ef seq.)

By Order entered, sua sponte, on December 21, 1992, the

District Court vacated a Judgment entered by the Clerk and certified

for appeal, under Rule 54(b),’ those issues “addressed by the

Court’s grant of summary judgment on December 3, 1992."

(App.A, at A-17 et seq.) On January 8, 1993, petitioners filed a

Notice of Appeal and, because the December 21 Order certified

only those claims disposed of by summary judgment, simultaneously

moved for certification of the claims which had been dismissed. (JA

1240 et seq., 1243 et seq.) On January 11, 1993, the District Court

3

In July 1991 the Republic Representatives filed a cross claim against the

Company, which was not disposed of by the District Court. Thus, the ruling on

the motion to dismiss or for summary judgment did not constitute a final judgment

on all pending matters

certified the remaining issues (App.A, at A-19 ef seq.), and a

second Notice of Appeal was filed on January 20, 1993. (JA 1252.)

The Penesediont be the Comet of aneeel

In the Court of Appeals, petitioners argued, inter alia, that

the District Court violated the Federal Rules in the respects argued

in their Rule 59(e) motion, and that those procedural errors were

not cured by the District Court’s belated attempt partially to exclude

extraneous matter in its December 3, 1992 Order. On January 28,

1994, the Court of Appeals affirmed, concluding that the timeliness

of an arbitrator’s award is a procedural matter for the arbitrator,

based on » aia Wiley A. Sons. nc._v._Livingsin. 376 U.S. 543

(1964), and

Teamsters, 969 F.2d 831 (9th Cir. 1992). The Court of Appeals

also concluded that the District Court had not abused its discretion

in denying the Rule 56(f) request and simultaneously granting

summary judgment. (App.A, at A-1 ef seq.)

REASONS FOR GRANTING THE WRIT

I,

THE DECISION BELOW CONFLICTS WITH DECISIONS

OF THIS COURT AND OTHER COURTS OF

APPEALS ON IMPORTANT ISSUES UNDER

THE FEDERAL RULES OF CIVIL PROCEDURE

As author of the Federal Rules of Civil Procedure and the

ultimate supervisory authority over the lower courts, this Court has

regularly taken jurisdiction to “review undecided questions

concerning the validity and construction” of the Rules. Schlagenhauf

vy. Holder, 379 U.S. 104, 109 (1964). See Stern, Gressman, Shapiro

& Geller, Supreme Court Practice, at 191-192 (7th ed. 1993). This

case presents such undecided questions.

From reading the decisions below, one might conclude that

the District Court’s procedures were unexceptional, as if the parties

had conducted full discovery; as if the individual respondents filed

a conventional summary judgment motion, including a statement of

supposedly-undisputed facts; as if petitioners responded fully to the

motion; and as if the trial court, with the benefit of each party's

fully-presented views, rendered a considered decision. As made

clear above, none of this occurred:

° The Republic Representatives’ motion was filed

while discovery was at its earliest stage, four days after

their response to the initial discovery requests; before any

documents were produced; and before any follow-up on

incomplete responses.

a The Republic Representatives did not identify the

facts assumed to be true or asserted to be undisputed.

. Petitioners invoked, in good faith, their express

right to request a continuance under Rule 56(/).

. The trial court denied the Rule 56(f) Request and

simultaneously granted the Republic Representatives’

alternative motion in both of its aspects, without giving

notice of its treatment of the extraneous matter; without

affording petitioners any opportunity to respond, other than

15 minutes of oral argument after the court read from a

prepared decision indicating it would grant the motion; and

in the face of issues acknowledged to be ones of first

impression.

These circumstances raise important issues under the Federal Rules.

A. Matsushita, Anderson, and Celotex Increased

The Quantum of Evidence With Which a Party

Must Respond to a Summary Judgment Motion _

Under Rule 56(c), summary judgment is proper if “there is

no genuine issue as to any material fact and ... the moving party is

entitled to a judgment as a matter of law." The moving party bears

the burden of establishing the absence of a genuine dispute as to a

material fact. Under Rule 56(e), a party faced with a motion "made

and supported as provided in this rule ... may not rest upon the

mere allegations or denials of the adverse party's pleading,” but

must instead “set forth specific facts showing that there is a genuine

issue for trial."

In three 1986 cases, this Court clarified these respective

burdens. In Matsushita Elec, Indust. Co., Ltd. v. Zenith Radio

Corp., 475 U.S. 574 (1986), the Court reversed the denial of

summary judgment in a complex antitrust action, stating:

... When the moving party has carried its

burden under Rule 56(c), its opponent must do

more than simply show that there is some

metaphysical doubt as to the materia! facts.

[Citations omitted.] In the language of the Rule,

the nonmoving party must come forward with

"specific facts showing that there is a genuine issue

for trial." Fed Rule Civ Proc 56(e)(emphasis added

{by the Court}).

475 U.S. at 586. The Court elaborated in Anderson v, Liberty

Lobby, Inc., 477 U.S. 242 (1986), holding that, in determining

whether a factual dispute is “genuine,” a district court must evaluate

the evidence according to "the substantive evidentiary standard of

proof that would apply at the trial on the merits.” Id., at 252. The

Court reasoned that a dispute is “genuine” only "if the evidence is

such that a reasonable jury could return a verdict for the nonmoving

party.” Id., at 248.

In Celotex Corp. v, Catrett, 477 U.S. 317 (1986), the Court

held that, where summary judgment is sought on "an issue on which

the nonmoving party bears the burden of proof," the motion need

not be supported by evidentiary material. Instead, the moving

party’s burden “may be discharged by 'showing’ -- that is, pointing

out to the district court -- that there is an absence of evidence to

support the nonmoving party’s case.” ]d., at 325. The nonmoving

party must then “go beyond the pleadings and by ... affidavits, or

by the ‘depositions, answers to interrogatories, and admissions on

file,’ designate ‘specific facts showing that there is a genuine issue

for trial."" Id., at 324 (quoting Rule 56(e)).

These decisions "significantly expanded the applicability of

summary judgment" by increasing its significance as “a full dress-

rehearsal for trial with legal burdens and evidentiary standards to

match those that would apply at trial." Issacharoff & Loewenstein,

Second Thoughts About Summary Judgment, 100 Yale L.J. 73, 73,

87 (1991). As a result, summary judgment has found increasing

favor in the lower courts.* Because a district court must view such

a motion as it would a motion for directed verdict after trial,

summary judgment becomes, in effect, “some sort of trial itself on

the paper record.” Childress, supra note 4, 116 F.R.D. at 194.

* See, e.g., Jones v. Auto.Ins. Co., 917 F.2d 1528, 1533 n.6 (11th Cir.

1990); Street v. J.C. Bradford & Co., 886 F.2d 1472, 1476-1481 (6th Cir. 1989);

Texas v. Allan Constr. Co., Inc., 851 F.2d 1526, 1533-1534 /Sth Cir. 1988); Lake

Nacimiento Ranch v. San Luis Obispo County, 830 F.2d 977, 979 (9th Cir.), cert.

denied, 488 U.S. 827 (1988); California Architectural Bidg. Prod., Inc. v.

Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir.), cert. denied, 484 U.S.

1006 (1988); Issacharoff & Loewenstein, supra, at 87-91; Childress, A New Era

for Summary Judgments: Recent Shifts at the Supreme Court, 116 F.R.D. 183, 194

(1987); 10A Wright, Miller & Kane, Federal Practice & Procedure § 2727, at 33

(1993 Supp.).

10

Cf. Tobey v, Extel/JWP, Inc., 985 F.2d 330, 332 (7th Cir. 1993);

Palucki v, Sears, Roebuck & Co., 879 F.2d 1568, 1572-1573 (7th

Cir. 1989); Street v, J. C, Bradford, supra note 4, 886 F.2d at

1481 n.23. As one district court has noted: “A Rule 56 motion puts

an end to pre-trial maneuvering and compels the litigants to show

the court what they can prove at trial. The rule gives the plaintiff

a deadline to come forth with his case, and it provides the strict

penalty of dismissal for those who cannot prove a case." Pisa v,

Underwriters at Lloyd’s, London, 787 F.Supp. 283, 286 (D.R.I.),

aff'd mem., 966 F.2d 1440 (Ist Cir. 1992).

A party opposing summary judgment is thus all but

compelled to respond with everything he could present at trial. As

Justice Brennan wrote in dissent in Anderson:

. It is hard for me to imagine that a

responsible counsel, aware that the judge will be

addressing the “quantum” of the evidence he is

presenting, will risk either moving for or

responding to a summary judgment motion without

coming forth with all of the evidence he can muster

in support of his client’s case.

477 U.S. at 267 (Brennan, J., dissenting)(emphasis in original).°

B. The Decision Below Conflicts With Anderson and Celotex

isi f f Is

The greater substantive burden on a party opposing

summary judgment heightens the importance of the procedural

. This is especially true because, under Rule 56(c), the District Court may

grant partial summary judgment. A claimant must take pains to adduce every

possible piece of evidence on every issue fairly raised by the summary judgment

motion, lest by silence he give up all or some part of his case.

11

SS a

protections of the Federal Rules. If the party must respond with all

of his evidence, those procedures must be faithfully adhered to by

a district court to assure a fair process. The decision below

conflicts with Anderson and Celotex, and with subsequent decisions

by other Courts of Appeals, with respect to those procedures.

i. Summary Judgment May be Entered Only

fy Full O ‘unity for Discov

a. The Importance of a Full

Opportunity for Discovery

In both Anderson and Celotex, this Court recognized that a

party Opposing summary judgment can meet its burden only if it

first has a full opportunity for discovery. In Anderson, the Court

stated that, faced with a summary judgment motion,

... the plaintiff must present affirmative

evidence in order to defeat a properly supported

motion for summary judgment. This is true even

where the evidence is likely to be within the

possession of the defendant, as long as the plaintiff

has had a full opportunity to conduct discovery.

477 U.S. at 257 (emphasis added). See id., at 250 n.5 (assuming

"that both parties have had ample opportunity for discovery");

Celotex, 477 U.S. at 326 ("The parties had conducted discovery,

and no serious claim can be made that respondent was in any sense

*railroaded’ by a premature motion for summary judgment”).

Since these decisions, Courts of Appeals have emphasized

that a full opportunity for discovery is an essential precondition for

summary judgment. See, ¢.g., Lawrence Paper Co. v. Rosen &

Co., Inc., 939 F.2d 376, 380 (6th Cir. 1991); Kauffman v. Puerto

Rico Tel. Co,, 841 F.2d 1169, 1172 (ist Cir. 1988); First Chicago

12

Int'l vy, United Exchange Co., Lid., 836 F.2d 1375, 1380 (D.C.Cir.

1988); Moody v, Maine Central R, Co,, 823 F.2d 693, 694 (ist

Cir. 1987).° The federal courts recognized as much even before

Anderson and Celotex,’ but this Court’s decisions underscore the

critical importance of this protection: a party facing summary

judgment can raise every possible factual issue only if he has first

had a full opportunity to discover the facts.

Here, by approving summary judgment with discovery only

just begun, the Eighth Circuit acted in conflict with these other

decisions. This Court should resolve this conflict.

b. The Increased Importance

of Rule 56(N)

In particular, Anderson and Celotex enhance the importance

of Rule 56(f), under which a party unable to respond adequately to

a summary judgment motion may request "a continuance to permit

affidavits to be obtained or depositions to be taken or discovery to

be had ...” In Celotex, the Court stated:

* — Eventhe Eighth Circuit has recognized this requirement. Costello, Porter,

Hill, Heisterkamp & Bushmell v. Providers Fidelity Life Ins.Co., 958 F.2d 836,

839 (8th Cir. 1992). This Court will grant certiorari on the basis of a conflict

within a Circuit, particularly where an important or recurring issue is raised, or to

correct especially egregious errors. See Stern, Gressman, Shapiro & Geller,

supra, at 176-177. Such considerations are present here.

7 E.g., Cowan v. J.C. Penney Co., 790 F.2d 1529, 1532 (11th Cir. 1986);

Sames v. Gamble, 732 F.2d 49, 51-52 (3d Cir. 1984); Schering Co orp. v. Home

Ins.Co., 712 F.2d 4, 10 (2d Cir. 1983); Murrell v. Bennett, 615 F.2d 306, 310

(Sth Cir. 1980); u Mut. Ca 0. v. American Fideli

Life Ins. Co., 606 F.2d 602, 609 (Sth Cir. 1979), cert. denied, 449 U.S. 820

(1980); Willmar Poultry Co. v. Morton-Norwich Prod., Inc., 520 F.2d 289, 292-

293 (8th Cir. 1975), cert. denied, 424 U.S. 915 (1976).

13

Any potential problem with ... premature

motions can be adequately dealt with under Rule

56(f), which allows a summary judgment motion to

be denied, or the hearing on the motion to be

continued, if the nonmoving party has not had an

opportunity to make full discovery.

Celotex, 477 U.S. at 326 (emphasis added). See Anderson, 477

U.S. at 250 n.5. Cf. Street v. L.C, Bradford, supra, 886 F.2d at

1478; Calkin, Summary Judgment, Motions to Dismiss, and Other

Examples of Equilibrating Tendencies in the Anti-Trust System, 74

Georg.L.J. 1065, 1118 (1986). Even before Anderson and Celotex,

Rule 56(f) was to be liberally applied. See 10A Wright, Miller &

Kane, Federal Practice & Procedure § 2740, at 532 (2d ed. 1983).

Now, when a party opposing summary judgment must, in effect,

respond with all of its evidence, Rule 56(f) becomes perhaps the

single most significant provision assuring the party a full

opportunity for discovery. Indeed, Celotex appears to require relief

under Rule 56(f) in any case in which “the nonmoving party has not

had an opportunity to make full discovery."*

* The Court of Appeals’ conclusion that the District Court had not “abused

its discretion” in denying the Rule 56(f) request for continuance must be viewed

in light of the significance of Anderson and Celotex for the legal standard

applicable under Rule 56(f). According to the District Court, the Rule 56(f)

request could be granted only if petitioners showed the existence of essential facts

in the exclusive control of respondents. (JA 1135-1136.) While that is one

permissible basis for granting a Rule 56(f) request, see Willmar Poultry v. Morton-

Norwich, supra, it is not the only basis. Cf. 10A Wright, Miller & Kane, supra,

§ 2740, at 550-551 (where party has been diligent, Rule 56(f) liberally applied).

Thus, numerous Courts of Appeals have held that denial of a Rule 56(f) request in

the face of incomplete discovery is error. E.g., First Chicago Int'l v. United

Exch., supra; Garrett v. San Francisco, 818 F.2d 1515 (9th Cir. 1987); Cowan v.

J.C. Penney, supra; Glen Eden Hosp., Inc. v. Blue Cross & Blue Shield of

Michigan, Inc., 740 F.2d 423 (6th Cir. 1984); Sames v. Gable, supra.

14

The Eighth Circuit’s decision conflicts with these decisions. )

Further, the Eighth Circuit's affirmance of the grant of summary

judgment simultaneously with the denial of the Rule 56(f) request

conflicts with at least one Circuit. In Yashon v. Gregory, 737 F.2d )

547 (6th Cir. 1984), after an earlier remand the plaintiff had filed, |

inter alia, a conditional request for continuance under Rule 56(f) in

the event the court intended to proceed under Rule 56. The trial

court simultaneously denied the request and granted summary

judgment. The Sixth Circuit reversed:

... We hold that the plaintiff was entitled to

a ruling on this properly tendered objection before

the court disposed of the entire case ... By

simultaneously denying the plaintiff's motion for a

continuance and granting summary judgment, the

district court deprived the plaintiff of the ...

Opportunity [to present whatever arguments and

evidence he could muster] ... As has been

indicated, the plaintiff was entitled to wait until his

Rule 56(f) motion was ruled upon before filing a :

brief. ;

ee eRe i sie

737 F.2d at 552-553. Given the heightened importance of Rule

56(f), this Court should resolve these conflicts.

2. The Moving Party Must Identify the Facts

Asserted to be Undisputed

In Celotex, this Court noted the initial burden on a party

moving for summary judgment:

Of course, a party seeking summary

judgment always bears the burden of ... identifying

those portions of “the pleadings, depositions,

answers to interrogatories, and admissions on file,

15

together with the affidavits, if any,” which it

believes demonstrate the absence of a genuine issue

of material fact.

477 U.S. at 323 (emphasis added)(quoting Ruie 56(c)). In

concurrence, Justice White (the fifth vote in Celotex) emphasized

that, while the movant need not support its motion "with evidence

or affidavits," the movant must nonetheless "discharge the burden

the Rules place before him." Id., at 328 (emphasis added). The

party opposing summary judgment can bring forth every fact

indicating any possible factual dispute only if he has full notice of

the facts which the moving party claims are undisputed.

Since Celotex, the Courts of Appeals have recognized the

importance of this initial burden on the movant. The Sixth Circuit,

for example, has stated:

. Even though the Supreme Court has

redefined the moving party’s initial burden

[citations omitted], the requirement that the movant

bears the initial burden remains _ unaltered.

[Citations omitted] ... At the very least, the court

must examine the movant’s motion to ensure that he

has discharged that burden. [Citation omitted.]

Wilson v. Zanesville, 954 F.2d 349, 251 (6th Cir. 1992). See

Beatty v, Washington Metropolitan Area Transit Authority, 860

F.2d 1117, 1120-1121 (D.C.Cir. 1988); Windon Third Oil & Gas

Co. v. FDIC, 805 F.2d 342, 345 n.7 (10th Cir. 1986), cert. denied,

480 U.S. 947 (1987). Cf. Pochahontas Supreme Coal Co. v.

Bethlehem Steel, 828 F.2d 211, 216 (4th Cir. 1987).

The decision below conflicts with these decisions, since the

Republic Representatives made no attempt to identify the facts they

claimed were undisputed. This Court should resolve the conflict.

16

3. In the Face of an Alternative Motion to Dismiss

or for Summary Judgment Supported by

Extraneous Material, a District Court Must Give

Notice of Its Treatment of That Material _

The Republic Representatives’ motion was brought in the

alternative, as a motion to dismiss or for summary judgment, and

was supported by extraneous factual matter. Such a motion must be

treated in its entirety either as one to dismiss or one for summary

judgment. E.g., Greene v. Union Mutual Life Insurance Co,, 764

F.2d 19 (ist Cir. 1985); Wellmaker v. Dahill, 836 F.Supp. 1375,

1378 (N.D.Ohio 1993); In re Scott County Master Docket, 618

F.Supp. 1534, 1548 (D.Minn. 1985), rev’d on other grounds Sub

nom., Myers vy. Morris, 810 F.2d 1437 (8th Cir. 1987), cert

denied, 484 U.S. 828 (1988); DiPersia v. U.S.R.R. Retirement

Board, 638 F.Supp. 485, 486 n.1 (D.Conn. 1986). This is dictated

by the express terms of Rule 12(b):

... If, on a motion asserting the defense

numbered (6) to dismiss for failure of the pleading

to state a claim upon which relief can be

granted,{*] matters cutside the pleading are

presented to and not excluded by the court, the

motion shall be treated as one for summary

judgment and disposed of as provided in Rule 56,

and all parties shall be given reasonable opportunity

to present all material made pertinent to such a

motion by Rule 56.

Thus, if the district court considers extraneous material, the motion

becomes, in its entirety, one for summary judgment; if the district

% While the Republic Representatives’ motion did not itself specify the

subsection of Rule 12(b) under which it was brought, the argument in the

supporting Brief was based on Rule 12(b)(6). (JA 721.)

17

court elects not to consider that material, the motion becomes, in its

entirety, one to dismiss.

In this situation, the Rules impose obligations on the district

court to give notice of the intended treatment of the motion. Unless

the district court affirmatively gives notice that it will exclude the

extraneous matter, "[t]he court [is] required by Rule 12(b) ... to

treat the motion to dismiss as one for summary judgment.” Carter

y. Stanton, 405 U.S. 669, 671 (1972)(emphasis added). See In re

Scott County, supra; DiPersia v, Retirement Board, supra; 5A

Wright & Miller, Federal Practice & Procedure § 1366, at 493-496

(1990). Further, if a district court determines to consider the

extraneous material and treat the motion as one for summary

judgment, at least one Circuit has held, since Anderson and Celotex,

that Rule 12(b) and Rule 56(c) require express notice to that effect

prior to a hearing on the motion. Jones v. Automobile Ins. Co.,

supra note 4."°

The Eighth Circuit’s decision conflicts with these

authorities. The District Court gave no notice of its treatment of

the extraneous material supporting the Republic Representatives’

0 The Eleventh Circuit explained:

. A successful summary judgment motion results in

a final adjudication of the merits of a case. Therefore, it is of

the utmost importance that parties are aware of the

transformation of the motion to dismiss into a motion for

summary judgment, and are able to present to the court

materials in support of or in opposition to the motion.

917 F.2d at 1533. This is fully consistent with the implications of Anderson and

Celotex discussed above. Indeed, the Eleventh Circuit made clear that “[t}his

procedural safeguard is even more valuable in light of [Anderson and Celotex] ...”

Id. at 1533 n.6. At the same time, the Eleventh Circuit acknowledged that its

holding created a conflict among the Circuits. 917 F.2d at 1533 n.5.

18

motion, and proceeded to exclude the extraneous material for some

purposes and consider it for others, effectively treating the motion

as one for partial dismissal and partial summary judgment."

Indeed, although the motion was cast expressly in the alternative,

the District Court dismissed some portions of the Second Amended

Complaint, granted summary judgment as to others, and granted

both forms of relief as to still others."

This Court should resolve this conflict as to the relationship

between Rules 12(b) and 56 in light of Anderson and Celotex.

'! In its initial Judgment Order, the District Court erroneously labelled the

motion as a "Motion to Dismiss, or in the alternative, for Partial Summary

Judgment.” (App.A, at A-4 - A-5. [emphasis added].) The District Court later

acknowledged its “error of law,” but granted precisely the same relief. (App.A,

at A-7 ef seq.)

12 This highlights the importance of notice of the intended treatment of such

a motion. Faced with a motion cast flatly in the alternative -- dismissal of the

entire Second Amended Complaint or summary judgment with respect thereto --

petitioners advised the District Court of their assumption that, absent exclusion of

the extraneous material, the motion was one for summary judgment. Though that

assumption was required by the express terms of Rule 12(b), it proved to be

erroneous in light of the later treatment of the motion. Petitioners could not have

predicted the District Court’s hybrid treatment of the motion, and they were left

to guess at how the motion would in fact be treated. Since motions to dismiss and

motions for summary judgment are governed by different standards, and petitioners

mever received notice of the District Court's intentions, petitioners had no

opportunity to respond to the motion as the District Court re-cast it.

19

THE COURT OF APPEALS’ CONCLUSION THAT THE

TIMELINESS OF AN ARBITRATION AWARD IS AN

ISSUE OF PROCEDURE FOR THE ARBITRATOR

RAISES ISSUES OF MAJOR PUBLIC IMPORTANCE

CONCERNING THE ROLE OF THE COURTS IN

LABOR ARBITRATION, AND IS IN CONFLICT WITH

DECISIONS BY OTHER COURTS OF APPEALS

A. The Eighth Circuit’s Characterization of the Issue

(Pp jure is in Conflict With Other Circui

This Court has frequently addressed the relationship between

courts and arbitrators under the federal common law of labor

arbitration, first recognized in Textile Workers v. Lincoln Mills of

Alabama, 353 U.S. 448 (1957). See Transportation Communications

Employees v, Union Pacific R. Corp., 385 U.S. 157 (1966). In the

1960 "Steelworkers Trilogy,” the Court underscored the primacy of

arbitration as a method of resolving disputes under labor

agreements. Steelworkers v. American Mfg. Corp., 363 U.S. 564

(1960); Steelworkers v, Warrior & Gulf Mfg. Co., 363 U.S. 574

(1960); Steelworkers v, Enterprise Wheel & Car Corp,, 363 U.S.

593 (1960). At the same time, the Court reiterated that "arbitration

is a matter of contract and a party cannot be required to submit to

arbitration any dispute which he has not agreed so to submit.”

Steelworkers v. Warrior & Gulf, supra, 363 U.S. at 582. See

AT&T Technologies, Inc, v, Communications Workers, 475 U.S.

643, 648-649 (1986). For that reason, whether a particular dispute

is within the arbitrator’s authority -- “substantive” arbitrability -- is

for the courts to decide. An arbitrator has no authority to decide

whether the parties have agreed to submit a particular dispute to

him. E.g., AT&T Technologies, supra, 475 U.S. at 649; John

Wiley & Sons, Inc, v. Livingston, 376 U.S. 543, 546-547 (1964).

20

hice —— a

In John Wiley & Sons, this Court created a limited

exception to this judicial role. The Court held that the grievance at

issue was arbitrable, but that the timely processing of the grievance

was a question for the arbitrator: "Once it is determined ... that the

parties are obligated to submit the subject matter of a dispute to

arbitration, ‘procedural’ questions which grow out of the dispute

and bear on its final disposition should be left to the arbitrator." 376

U.S. at 557.

The present case raises the issue whether an arbitrator's

compliance with a contractual time limit for issuing his award is for

the courts to decide (as a matter of the arbitrator’s compliance with

his authority, i.e., substantive arbitrability), or is a matter of

procedure for the arbitrator. In numerous cases, a party has

claimed that an award was invalid because it was issued beyond a

contractual time limit. Regardless of the particular standard applied

by the court in each case, prior to 1992 every Court of Appeals

confronted with such a claim treated it as a question of the scope

of the arbitrator’s authority — an issue of substantive arbitrability.

In each case, the court determined the proper interpretation of the

contractual time limit, and the court determined whether the time

limit had been complied with.”

'S Eig. Schneider v. S.Ry. Co., 822 F.2d 22 (6th Cir. 1987); Hill v

Norfolk & West.Ry. Co., 814 F.2d 1192 (7th Cir. 1987); Jones v. Su.L.-S.F. Ry.

Co,, 728 F.2d 257 (6th Cir. 1984), Huntington Alloys v. Steelworkers, 623 F.2d

335 (4th Cir. 1980); Detroit Coal Co. v_ JAM Lodge No. 82, 594 F.2d 575 (6th

Cir.), cert. denied, 444 U.S. 840 (1979); Local Union 560, Int'l Bhd. of Teamsters

v. Anchor Motor Freight, Inc., 415 F.2d 220 (3d Cir. 1969); Lodge No. 725, JAM

v. Mooney Aircraft, Inc., 410 F.2d 681 (Sth Cir. 1969); West Rock Lodge No.

2120, IAM vy. Geometric Tool Co., 406 F.2d 284 (2d Cir. 1968); Bhd. of Ry.

Clerks v. Norfolk & S.Ry. Co., 143 F.2d 1015 (4th Cir. 1944). See Grinnell

Hous. Devel. Fund Corp. v. Local 32B-32), SEIU, 767 F.Supp. 673 (S.D.N.Y.

1991); Petham Parkway Nursing Home v. Local 144, Hotel, Hospital, Nursing

Home & Allied Services Union, 132 LRRM 2744 (S.D.N.Y. 1989); Schafer

Bakeries, Inc. v. Int'l Bhd. of Teamsters Local 332, 650 F.Supp. 753 (E.D.Mich.

21

The Eighth Circuit's holding conflicts with these

decisions."* The sole support found by the Eighth Circuit -- and

by the trial court -- is McKesson Corp, v, Local 150, Int'l

Brotherhood of Teamsters, 969 F.2d 831 (9th Cir. 1992). The

Ninth Circuit’s holding that “[t}he question of the authority of the

arbitrator to issue an award after the [contractual] period involves

. @ procedural matter,” id., at 834, also conflicts with the

treatment of this issue by other Courts of Appeals.

This conflict relates to an important question under the

federal labor laws, for the willingness of parties to enter into

arbitration agreements would be "drastically reduced" if the

arbitrator had the “power to determine his own jurisdiction."

AT&T Technologies, supra, 475 U.S. at 651, citing Cox,

Reflections Upon Labor Arbitration, 72 Harv.L.Rev. 1482, 1509

1986); In re American Airlines, Inc., 633 F.Supp. 723 (E.D.N.Y. 1986); Hotel,

Motel, Restaurant & Hi-Rise Employees Local 355 v. Fontainbleau Hotel Corp.,

423 F.Supp. 83 (S.D.Fla. 1976); Automobile, Transport Chauffeurs,

F.Supp. 1156 €. D. Mo. 1974); Int'l Union of Petroleum & Indus. Workers v.

Standard Oi] Co., 378 F.Supp. 1278 (C.D.Cal. 1973). Cf. IBEW Local 637 v.

Davis H. Wiliot Co., Inc., 127 CCH Lab.Cases { 10,952 (4th Cir. 1993).

'* The court below obviously assumed that, by making timeliness a

procedural issue, it eliminated any role for the courts in reviewing an arbitrator's

conduct. To the contrary, some Courts of Appeals have held that an arbitrator's

procedural decisions are subject to review in the same manner as his ultimate

decision on the merits. E.g., Barnard v. Commercial Carriers, Inc., 863 F.2d 694,

697 (10th Cir. 1988); Local Union 89 v. Moog Louiville Warehouse, 852 F.2d

871, 875 (6th Cir. 1988); Local 771, IATSE v. RKO General, Inc., 546 F.2d

1107, 1113 (2d Cir. 1977). As one court has stated, “[t}he violation of an express

and explicit restriction on the arbitrator's power cannot be a plausible

interpretation” of the applicable contract. Federated Employers of Nevada, Inc.

v. Teamsters Local 631, 600 F.2d 1263, 1265 (9th Cir. 1979). See Paperworkers

v. Misco, Inc., 484 U.S. 29, 38 (1987)("The arbitrator may not ignore the plain

language of the contract"). Cf Steelworkers v. Cherokee Elec. Coop., 485 U.S.

1038 (1988)(White, J., dissenting from denial of certiorari).

22

\

(1959). This Court explained that, "[w]ere this the applicable rule,

an arbitrator would not be constrained to resolve only those disputes

that the parties have agreed in advance to settle by arbitration, but,

instead, would be empowered ‘to impose obligations outside the

contract limited only by his understanding and conscience’.” 475

U.S. at 651, quoting Cox, supra, 72 Harv.L.Rev. at 1509. See John

Wiley & Sons v. Livingston, supra, 376 U.S. at 547. This Court

should resolve the conflict.

B. The Decision Below Raises Important Questions

of Labor Contract Interpretation

The Eighth Circuit’s view that the timeliness of an award is

always a question for the arbitrator implicates basic labor contract

principles. As with any contract, the first rule in interpreting a

collective bargaining agreement is to give the words of the

agreement their ordinary meaning. NLRB v. Superior Forwarding,

Inc., 762 F.2d 695 (8th Cir. 1985). Cf. Textile Workers v. Lincoln

Mills, supra, 353 U.S. at 457. In addition, the parties’ unwritten

practices are uniquely significant under a labor agreement as "a new

common law -- the common law of a particular industry or of a

particular plant.” Steelworkers v. Warrior & Gulf, supra, 363 U.S.

at 578-579. See Consolidated Rail Corp, v. Ry. Labor Executives’

Ass'n, 491 U.S. 299, 311 (1991); Transportation Communications

Employees v. Union Pacific, supra, 385 U.S. at 160-161.

Even were the timeliness of an award generally an issue of

procedure under John Wiley & Sons, in this case that “procedural”

label collides with these principles of contract interpretation. The

decision below, leaving the enforcement of a time limit in all cases

to the arbitrator, renders the parties’ language, bargaining history,

and practice irrelevant, eliminating any opportunity for the parties

to negotiate their own language and develop their own practice for

the resolution of the issue. Here, Section VII.G. of the Agreement

provides:

23

nn

The arbitrator shall issue an award in

writing within ten (10) days after the conclusion of

the hearing. All other procedures relating to the

arbitration shall be determined by the arbitrator ...

(JA 367 [emphasis added].)

Given the ordinary meaning of the words “shall” and “other,”

Section VII.G. imposes an obligation on the arbitrator, and excludes

the 10-day limit from the “procedures relating to the arbitration”

which are to be "determined by the arbitrator."'* Moreover, prior

to Supplemental Awards Nos. 8 and 9, the parties and Mr. Roberts

had treated the time limit as mandatory, and Mr. Roberts had

assured the parties that he would secure their consent to any

extension or modification of the time limit.'°

By appearing to render such facts irrelevant, the Eighth

Circuit has acted in conflict with other Courts of Appeals. The

Sixth Circuit stated, in holding an untimely grievance inarbitrable:

... The court must first determine from the

contract provisions dealing with arbitration, the

particular grievances are to be subject to arbitration.

It will not do to characterize something as

“procedural” and conclude automatically that

'S Even “procedures” determined by the arbitrator under Section VII.G.

mura be determined “in consultation with the parties.” Here, Mr. Roberts made

no effort to “consult” or communicate in any way with the parties prior to his

unilateral determination that he possessed the authority to "adjust" the time limit.

'@ Mr. Roberts’ action in securing a stipulation that the 10 days would be

treated as 10 “working days” can only be explained if he and the parties viewed the

time limit as mandatory and understood that he lacked the authority to act

unilaterally. If the time limit were mere verbiage, or if Mr. Roberts had the

authority unilaterally to “adjust” the time limit (as he later asserted), no such

stipulation would have been needed.

24

“procedural” matters are for the arbitrator if the

parties have specified otherwise in the arbitration

section itself.

Local Union 89 v, Moog Louiville Warehouse, 852 F.2d 871, 873

(6th Cir. 1988)(emphasis in original). Cf. Volt Information

Sciences, Inc, v, Board of Trustees, Leland Stanford Junior

University, 489 U.S. 468, 475-476 (1989)(under Federal Arbitration

Act, parties free to reserve procedural issue to the courts). Even in

McKesson, the Ninth Circuit recognized that the parties to an

arbitration agreement could agree to remove procedural issues from

the arbitrator’s authority. 969 F.2d at 834. This Court should

resolve this conflict.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

Richard Frye Watt

Counsel of Record

Wesley Kennedy

Kelly J. Hupfeld

Cotton, Watt, Jones & King

Suite 2050

122 South Michigan Avenue

Chicago, Illinois 60603

(312) 427-5100

Counsel for Petitioners

March 28, 1994

25

” —_—- /{— ee = ee

APPENDIX A

OPINIONS BELOW

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Nos. 93-1194/1216

Robert D. Kehs; Kenneth

LeBon; Steven C. Billings, as

Merger Representatives of the

Northwest Pilots,

Appellants,

Appeal from the United States

District Court for the District

of Minnesota.

V.

Larry Eugene Foster; James

Campbell; Robert Stuart

Bloemer, as the Merger Re-

presentatives of the former

Republic Pilots; Northwest

Airlines, Inc., a Minnesota

Corporation; Air Line Pilots

Association International, an

unincorporated labor

Organization,

[UNPUBLISHED]

Appellees.

Submitted: November 8, 1993

Filed: January 28, 1994

Before BEAM, Circuit Judge, LAY, Senior Circuit Judge and

BOGUE,,” Senior District Judge.

* The HONORABLE ANDREW BOGUE, Senior United

States District Judge for the District of South Dakota, sitting by

designation.

PER CURIAM.

Kehs, LeBon and Billings, merger representatives of the

Northwest Airlines Pilots, appeal the district court’s dismissal of

their action challenging an arbitrator’s decision in favor of Foster,

Campbell and Bloemer, merger representatives of the former

Republic Airlines Pilots. We affirm.’

This action involves the merger of Republic Airlines and

Northwest Airlines. At issue here are an arbitrator’s award which

integrates the seniority lists of the two airlines and various other

disputes involving the application, implementation and interpretation

of the award. In district court, the Northwest pilots challenged the

arbitrator’s finding on the issue of timeliness of the arbitrator’s

decision. The district court ruled that the timeliness issue was a

procedural matter expressly reserved for the arbitrator. We agree.

Procedural questions which grow out of an arbitrable dispute and

bear on its final disposition should be left to the arbitrator. John

Wiley & Sons, Inc, v, Livingston, 376 U.S. 543, 557 (1964).

Timeliness is such a procedural issue. McKesson Corp. v, Local

150 IBT, 969 F.2d 831, 834 (9th Cir. 1992).

The Northwest Pilots also assert that the district court

abused its discretion in denying their Fed. R. Civ. P. 59 motion.

They assert that the district court abused its discretion in denying a

motion for a continuance and in converting their motion to dismiss

to a motion for summary judgment without providing them time to

respond. We find no abuse of discretion. We agree with the well-

reasoned and thorough opinion of the district court and affirm in

accordance with 8th Cir. R. 47B.

' The former Republic Pilots have filed a motion to dismiss

the appeal. That motion is rendered moot by this decision.

A-2

a

a

:

q

j

3

In view of the foregoing, the order of the district court is

affirmed.

A true copy.

Attest.

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

A-3

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

THIRD DIVISION

ROBERT D. KEHS,

KENNETH LEBON, and

STEVEN C. BILLINGS, as

the Merger Representatives of

the Northwest Pilots,

Plaintiffs,

v. ORDER

Civ. No. 3-91-827

LARRY EUGENE FOSTER,

JAMES CAMPBELL, and

ROBERT STUART

BLOEMER, as the Merger

Representatives of the former

Republic Pilots,

NORTHWEST AIRLINES,

INC., a Minnesota corpora-

tion,

and

AIR LINE PILOTS

ASSOCIATION,

INTERNATIONAL, an

unincorporated labor

organization,

Defendants.

This matter came on for a hearing before the Honorable

Robert G. Renner on October 15, 1992 upon the Motion to Dismiss,

A-4

or in the alternative, for Partial Summary Judgment of defendants

Foster, Campbell, and Bloemer. The defendant Air Line Pilots

Association joined in the motion and the defendant Northwest

Airlines submitted a Memorandum of Law in support of the motion.

Richard Watt and Richard Williams, Jr. appeared on behalf of the

plaintiffs. Daniel Katz and Greg Corwin appeared on behalf of the

defendants Foster, Campbell, and Bloemer. Robert Hobbins

appeared for defendant Northwest Airlines. Robert Atmore and

Jonathan Cohen appeared on behalf of defendant Air Line Pilots

Association.

Based on the file, the entire record, the arguments of

counsel, and the Court’s bench ruling, IT IS HEREBY ORDERED

that:

1. the Motion to Dismiss all of the plaintiffs’ claims

under the Minnesota Arbitration Act is granted because these claims

are preempted by the Railway Labor Act and thus fail to state a

claim upon which relief can be granted;

2. the Motion to Dismiss all of the plaintiffs’ claims

based on the Arbitrator’s bias is granted because these claims fail to

state a claim upon which relief can be granted;

3. the Motion to Dismiss all of the plaintiffs’ claims

based on allegations that the Arbitrator misinterpreted the contract

and that his reasoning and rulings were inconsistent is granted

because these claims fail to state a claim upon which relief can be

granted;

4. the Motion to Dismiss the claims based on the

untimeliness of Supplemental Awards Nos. 8 and 9 is granted

because the issue is a procedural one which this Court has no

jurisdiction to review;

S$. alternatively, the Motion for Summary Judgment on

the claims based on the untimeliness of Supplemental Awards Nos.

8 and 9 is granted because the plaintiffs present no genuine issue of

material fact as to whether the lateness of the awards was

unreasonable;

6. the Motion for Summary Judgment on the claim that

the Dispute Resolution Agreement did not contain a page 17 and a

§ X granting the Arbitrator the power to interpret the Agreement is

granted because the plaintiffs cannot raise a genuine issue of

material fact with respect to this claim;

7. the Motion to Dismiss the claims with respect to

Supplemental Award No. 11 is granted [sic] these claims fail to state

a claim upon which relief can be granted;

8. the plaintiffs’ request for a continuance pursuant to

Fed. R. Civ. P. 56(f) is denied because the plaintiffs failed to

demonstrate that they merit a Rule 56(f) continuance.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: October 19, 1992

ROBERT G. RENNER, Senior Judge

United States District Court

A-6

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

THIRD DIVISION

ROBERT D. KEHS,

KENNETH LEBON, and

STEVEN C. BILLINGS,

Plaintiffs,

Vv. Civ. No. 3-91-827

MEMORANDUM

LARRY EUGENE FOSTER, AND ORDER

JAMES CAMPBELL, and

ROBERT STUART

BLOEMER,

NORTHWEST AIRLINES,

INC.,

and

AIR LINE PILOTS ASSO-

CIATION, INTERNA- \

TIONAL,

Defendants.

BACKGROUND

Before the Court is the plaintiffs’ Motion to Alter or Amend

Judgment Pursuant to Federal Rule 59(e). The plaintiffs allege that

the Court’s Order of October 19, 1992 violated Fed. R. Civ. P. 12

and 56 and is “a gross abuse of the Court’s discretion.” Plaintiffs’

Motion (hereinafter P!. Mtn.) { 8.

A-7

The plaintiffs assert that the Court committed three errors.

First, the plaintiffs contend that the Court improperly dismissed

portions of the plaintiffs’ Complaint without explicitly excluding

matters outside the pleadings submitted by the defendants as

required by Fed. R. Civ. P. 12(b). Id, 9.5. Second, they insist

that the Court improperly failed in two ways to give them a

“reasonable opportunity” to respond to the defendants’ motion. [d,

16. Third, the plaintiffs claim that the Court's judgment “violates

the elementary standards for reviewing motions to dismiss and for

summary judgment." Jd. 4 7.

DISCUSSION

According to the Eighth Circuit,

"Motions for reconsideration serve a_ limited

function: to correct manifest errors of law or fact or to

present newly discovered evidence. Such motions cannot in

any case be employed as a vehicle to introduce new

evidence that could have been adduced during pendency of

the summary judgment motion. The nonmovant has an

affirmative duty to come forward to meet a properly

supported motion for summary judgment... . Nor should

a motion for reconsideration serve as the occasion to tender

new legal theories for the first time.”

Hagerman v, Yukon Energy Corp., 839 F.2d 407, 414 (8th Cir.),

cert. denied, 488 U.S. 820 (1988) (quoting Rothwell Cotton Co. v.

Rosenthal & Co,, 827 F.2d 246, 251 (7th Cir.), as amended, 835

F.2d 710 (7th Cir. 1987).

I. The Court Failed Explicitly to Exclude Matters Outside

the Pleadings as Required by Rule 12(b)

The plaintiffs’ first claim of error rests on the Court's

failure to explicitly exclude from consideration matters outside the

A-8

Dil ereeretnnn

pleadings in dismissing certain portions of the Second Amended

Complaint. As the plaintiffs note, Rule 12(b) requires that when

matters outside the pleadings are presented to and not excluded by

the Court, a Rule 12(6)(6) motion to dismiss is to be "treated as one

for summary judgment.” This Rule 12(b) conversion requirement

appears intended to ensure that the nonmovant is able adequately to

respond to the submission by the movant of matters outside the

pleadings.

The defendants entitled their motion as one to "Dismiss the

Second Amended Complaint, or, in the Alternative, for Summary

Judgment in Their Favor.” Therefore, the Local Rule 7.1 briefing

schedule was followed. Under Local Rule 7.1 the plaintiffs had the

opportunity to submit any matters that Rule 56 entitled them to

submit. Hence, the plaintiffs had “a reasonable opportunity to

present all material made pertinent . . . by Rule 56." Fed. R. Civ.

P. 12(b). Thus, the defendants’ motion was treated in every way as

a motion for summary judgment except that the Court stated that it

was dismissing, rather than granting summary judgment against,

certain of the plaintiffs’ claims. The Court thus believes that the

purposes of the Rule 12(b) conversion requirement have been fully

satisfied. Nevertheless, under the plain language of Rule 12(b) the

Court appears to have committed an error of law. Therefore, the

Court will vacate the Order of October 19 and reenter judgment

against the plaintiffs in conformity with Rule 12(b).

Il. The Plaintiffs had a Reasonable Opportunity to Respond

to the Defendants’ Motion

The plaintiffs’ second claim of error is that the Court denied

them a reasonable opportunity to respond to the Defendants’ motion.

Pi. Mem. at 7. This claim is based on two separate arguments.

a. The Court’s Action Did Not Violate the Rule

12(b) Requirement of a Reasonable Opportunity

to Respond

First the plaintiffs assert that the Court failed to afford them

a “reasonable opportunity to present all material made pertinent to

such a motion by Rule 56" as required by Rule 12(b). Plaintiffs’

Memorandum (hereinafter Pl. Mem.) at 7. This claim rests on the

assertion that, because the Court’s dismissal order failed to

explicitly exclude matters outside the pleadings, the Court was

required to "give the [plaintiffs] advance notice of its intent not

to exclude the extraneous materials, in order that the [plaintiffs]

may respond to the motion under Rule 56." Id, (italicization and

bolding in the original).

This argument can be disposed of quickly. As stated above,

the defendants’ motion was for dismissal or alternatively for

summary judgment. Therefore, as stated above, the plaintiffs had

both notice that the motion might be treated as one for summary

judgment and the opportunity to respond with supporting materials

outside the pleadings. See Washington v. Allstate Ins. Co., 901

F.2d 1281, 1284 (Sth Cir. 1990) ("[T}he notice required is only that

the district court could treat the motion as one for summary

judgment, not that the court would in fact do so." (emphasis in

original)).

The vacuousness of the plaintiffs’ argument is underscored

by their attempt to have it both ways. The argument the plaintiffs

now make in support of their motion for reconsideration implies that

they had previously presumed that the Court would not treat the

defendants” motion as one for summary judgment. However, in

their request for a continuance, the plaintiffs clearly indicated that

they would treat the defendants’ motion as one only for summary

judgment. Plaintiffs’ Request for a Continuance at 2.

The hollowness of this argument is further underscored by

the irrelevance of the three cases the plaintiffs cite. See Court v.

Hall County, 725 F.2d 1170, 1172 (8th Cir. 1984); Woods v.

Dugan, 660 F.2d 379, 381 (8th Cir. 1981); Jensen v. Klecker, 599

F.2d 243, 245 (8th Cir. 1979). In each of these cases the issue

before the court had been identified solely as a motion to dismiss.

Nevertheless, in each case the court considered matter outside the

pleadings without giving the nonmovant advance notice that it would

do so. Moreover, in none of these cases did the nonmovants have

a meaningful opportunity to submit any matter outside the pleadings

in support of their position. Thus, these cases are simply

inapposite.

b. The Simultaneous Denial of a Continuance and

Grant of the Defendants’ Motion was Proper

Second, the plaintiffs assert that the simultaneous denial of

the request for a continuance and grant of the defendants’ motion

ignored the Rule 12(b) requirement of a [sic] opportunity to submit

pertinent materials under Rule 56. Pi. Mem. at 8-9. The plaintiffs

insist that this action “effectively nullified the right created by Rule

56(f)" by turning Rule 56(f) into a Catch 22 for “an unwary party

who sincerely believes that additional discovery is needed to respond

adequately ‘o a summary judgment motion.” Id. at 11.

The unwary party-Catch 22 argument is unconvincing,

especially in the context of this case. The fact is that when they

[sic] plaintiffs chose not to submit a substantive response to the

defendants’ motions, they were gambling that the Court would grant

them a continuance or at least give them a second chance to submit

a substantive response. Now that they have lost the gamble, the

plaintiffs are trying to save their case by arguing that they had no

choice but to do what they did.

A-11

The plaintiffs’ Catch 22 hyperbole, however, rests on an

unwarranted assumption. In order to make the case that they were

“trapped” by Rule 56(f), the plaintiffs necessarily must argue that

they could not simultaneously request a continuance and submit a

response in opposition to summary judgment. Indeed, the plaintiffs

argue that they “obviously cannot be expected simultaneously” to

request a continuance and respond on the merits “for to do so might

be viewed as casting doubt on the need for a Rule 56(f) request.”

Id. at 12 n.7 (italicization and bolding in original).

This proposition cannot be derived from the Federal Rules.

As the Eighth Circuit has stated, "The nonmovant has an affirmative

duty to come forward to meet a properly supported motion for

summary judgment.” Hagerman, 839 F.2d at 414. Similarly, the

Third Circuit has stated that the nonmovant is “under an obligation

to respond to that motion in a timely fashion and to place before the

court all materials it wishes to have considered when the court rules

on the motion" Cowgill v, Raymark Indus., Inc., 780 F.2d 324,

329 (3d Cir. 1985).

Nor does the plaintiffs [sic] position make practical sense.

For example, in the case of a truly meritorious request for a

continuance it is likely that submitting a substantive response would

Strengthen the nonmovant’s request by making it clear how a

continuance would help. The plaintiffs’ strategy also runs counter

to the practice of pleading in the alternative. Finally, the plaintiffs’

argument blithely ignores the fact that the defendants moved for

summary judgement or dismissal. Requesting a continuance on a

summary judgment motion clearly is not inconsistent with filing a

substantive opposition to a motion to dismiss.

The plaintiffs’ Request for a Continuance did ask that they

be granted "an appropriate period in which to respond to the

reconstituted motion to dismiss" if the Court chose to treat the

defendants’ motion as one to dismiss. Plaintiffs’ Request for

A-12

Continuance at 4 n.2. This footnote, however, did not entitle the

plaintiffs to ignore the motion to dismiss. (Nor did they have right

to receive the information they asked for. See Isquith vy. Middle S.

Utils.. Inc., 847 F.2d 186, 196 (5th Cir.), cert, denied, 488 U.S.

926 (1988).) Nothing in Rule 56(f) or in any of the cases cited by

’* the pfaintiffs implies that thé Federai Rules give such power to a

party opposing a motion for summary judgment, let alone a motion

to dismiss -

Not only is the foundation of the plaintiffs’ Catch 22

argument unsound, but the obverse of the plaintiffs’ analysis is more

accurate; the Court, rather than the plaintiffs was in a bind. By

refusing to respond directly to the motion to dismiss or for summary

judgment and when they requested a continuance, the plaintiffs may

have been attempting to force the Court to delay ruling on the

merits. Alternatively, the plaintiffs may have feared that a

substantive response to the defendants’ motion would have

undermined the merits of their request for a continuance. Indeed,

this may be what the plaintiffs mean when they argue that a

simultaneous request for a continuance and a response on the merits

"might be viewed as casting doubt on the need for a Rule 56(f)

request.” In any case, the Court is satisfied that plaintiffs’ counsel

are not unwary innocents and that they made the choice not to

respond on the merits with their eyes wide open.

The plaintiffs rely for legal support on an opinion which

they claim "has squarely held that a ruling identical to that made

in this case is reversible error.” Id. at 9-10 (citing Yashon v.

Gregory, 737 F.2d 547 (6th Cir. 1984)) (italicization and bolding

in the Memorandum). However, despite the plaintiffs’ insistence

that it applies “on all fours,” Yashon does not control this case.

First, Yashon is a Sixth Circuit, not an Eighth Circuit opinion.

Second, the portion of Yashon that the plaintiffs rely on is

dictum. This “holding” was based on the premise that the plaintiff

A-13

had received unequivocal notice of the court’s intention to enter

summary judgment sua sponte against the plaintiff. Id, at 552. In

fact, however, the district court in Yashon had entered judgment

without any advance warning. Id, Therefore, the only factual basis

for the Yashon court's reversal of the entry of summary judgment

was the district court’s failure to give the plaintiff unequivocal

advance notice of its intent to enter judgment. In this case, on the

other hand, the plaintiffs had unequivocal notice of the possibility

that summary judgment would be entered against them.

Third, even if Yashon were an Eighth Circuit opinion and

the relevant portion was not dictum, it would still be factually

distinguishable. In a portion of the opinion that the plaintiffs quote,

the Yashon court stated that the simultaneous denial of the

continuance and entry of summary judgment wrongly deprived the

plaintiff of the opportunity to respond “with whatever arguments

and evidence in the record that he could muster." Id, The Yashon

plaintiff had been unsure of the district court’s intentions upon

remand but suspected that summary judgment might be in the

offing. Id, The plaintiff therefore requested a Rule 5S6(f)

continuance in order to respond to a previously unbriefed issue

presented by the Sixth Circuit’s remand. Id, As the district court

had already ordered a round of briefs on the remand issue, the

plaintiff asked the court clerk whether a new briefing schedule

would be ordered in light of the Rule 56(f) motion. Id. The clerk

apparently informed him that he need not submit a brief until the

court ruled on his client’s motions. Id, Nevertheless, the court

subsequently simultaneously denied the continuance and entered

summary judgment against the plaintiff. Id.

The district court’s actions in Yashon clearly induced the

plaintiff not to brief the issue upon which the court, without prior

notice, entered summary judgment sua sponte against the plaintiff.

In contrast, the plaintiffs in this case were on notice of the

possibility of summary judgment and had ample opportunity to

A-14

present “whatever arguments and evidence . . . [they] could muster”

because, as already stated, the plaintiffs had the opportunity to

respond to the defendants’ motion with a memorandum supported

by affidavits and exhibits. That the plaintiffs did not respond to the

defendants’ motion with the memorandum that Local Rule 7.1

provides for but instead submitted a request for a continuance does

not imply that the plaintiffs were denied the opportunity to submit

a response brief. As stated below, nothing precluded the plaintiffs

from submitting a response brief in opposition to the defendants’

motion at the same time they requested a Rule 56(f) continuance.

Ill. The Plaintiffs’ Claims With Respect to Standard of

Review are Not Cognizable Under Rule 59(e)

The plaintiffs’ fourth argument is that the Court “violat(ed]

the elementary standards for reviewing motions to dismiss and for

summary judgment.” Pl. Mem. at 12. As stated earlier, the

purpose of a Rule 59(e) motion to alter or amend judgment is to

correct manifest errors of law or fact or to present newly discovered

evidence. Hagerman, 839 F.2d at 414. Hence, a party may not use

such a motion to introduce new evidence that it could have

presented during the summary judgment motion. Id. The plaintiffs

point to no manifest error of law or fact committed by the Court

with respect to the standard of review. Furthermore, the plaintiffs

present no new evidence that they could not have presented to the

Court before its ruling.

The Court ORDERS that:

1. based on the entire record, the plaintiffs’ motion to

alter or amend judgment pursuant to Rule 59(e) is GRANTED to

the extent that the Order of October 19, 1992 is VACATED; in all

other respects the plaintiffs’ Rule 59(e) motion is DENIED;

A-15

2. based on the entire record and on the Court’s bench

ruling of October 15, 1992, except any matters outside the

pleadings, the individual defendants’ motion to dismiss all of the

plaintiffs’ claims based on: the Minnesota Arbitration Act; the

Arbitrator’s alleged bias; allegations that the Arbitrator

misinterpreted the contract and that his reasoning and rulings were

inconsistent; the untimeliness of Supplemental Awards Nos. 8 and

9; and all claims with respect to Supplemental Award No. 11 are

GRANTED;

De based on the entire record and on the Court’s bench

ruling of October 15, 1992, with respect to the plaintiffs’ claims

based on the untimeliness of Supplemental Awards Nos. 8 and 9, as

an alternative to dismissal, the individual defendants’ motion for

summary judgment is GRANTED;

4. based on the entire record and on the Court’s bench

ruling of October 15, 1992, the individual defendants’ motion for

summary judgment on the claim that the Dispute Resolution

Agreement did not contain a page 17 and a § X granting the

Arbitrator the power to interpret the Agreement is GRANTED;

5. based on the entire record and on the Court’s bench

ruling of October 15, 1992, the plaintiffs’ request for a continuance

pursuant to Fed. R. Civ. P. 56(f) is DENIED.

LET JUDGMENT BE ENTERED ACCORDINGLY.

DATED: December 3, 1992

ROBERT G. RENNER, Senior Judge

United States District Court

A-16

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

THIRD DIVISION

ROBERT D. KEHS,

KENNETH LEBON, and

STEVEN C. BILLINGS,

Plaintiffs,

Vv. Civ. No. 3-91-827

LARRY EUGENE FOSTER, ORDER

JAMES CAMPBELL, and

ROBERT STUART

BLOEMER,

NORTHWEST AIRLINES,

INC.,

=

and

AIR LINE PILOTS ASSO-

CIATION, INTERNA-

TIONAL,

Defendants.

The judgment order entered in this case by the Clerk on

December 3, 1992 is hereby vacated, as it was not issued in

compliance with Fed. R. Civ. P. 54(b).

In a case involving more than one claim, Rule 54(b) permits

the entry of final judgment on less than all of the claims “only upon

an express determination that there is no just reason for delay and

upon an express direction for the entry of judgment.” Rule 54(b).

A-17

By an order dated December 3, 1992, this Court granted a motion

by defendants Foster, Campbell, and Bloemer (individual

defendants) for summary judgment. This order directed the entry

of final judgment on the claims at issue in the summary judgment

motion but failed to expressly determine that there was no just

reason for delaying the entry of final judgment on those claims.

The Court finds that there is no just reason for delaying the

entry of final judgment on the claims addressed by the December 3,

1992 grant of summary judgment. Therefore, the Court directs the

entry of final judgment on the claims addressed by the Court’s grant

of summary judgment on December 3, 1992.

DATED: December 21, 1992.

ROBERT G. RENNER, Senior Judge

United States District Court

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MINNESOTA

ROBERT D. KEHS,

KENNETH LEBON, and

STEVEN C. BILLINGS, as

the Merger Representatives of

the Northwest Pilots,

Plaintiffs,

Vv.

LARRY EUGENE FOSTER,

JAMES CAMPBELL, and

ROBERT STUART

BLOEMER, as the Merger

Representatives of the former

Republic Pilots,

NORTHWEST AIRLINES,

INC., a Minnesota

corporation,

and

AIR LINE PILOTS

ASSOCIATION,

INTERNATIONAL, an

unincorporated labor

organization,

Defendants.

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

Civ. No. 3-91-827

ORDER

The claims described in paragraph 2 of the Order entered by

this Court on December 3, 1992 and ordered dismissed therein, are

hereby certified for appeal pursuant to Rules 54(b), Fed. R. Civ. P.

A-19

In a case involving more than one claim, Rule 54(b) permits

the entry of final judgment on less than all of the claims “only upon

an express determination that there is no just reason for delay and

upon an express direction for the entry of judgment." Rule 54(b).

By an order dated December 3, 1992, this Court disposed of all

claims brought by plaintiffs in their Second Amended Complaint.

Judgment was entered by the Clerk accordingly. On December 21,

1992, the Court issued an Order vacating the December 3 Judgment

Order entered by tie Clerk for failure to comply with the

requirements of Rule 54(b). In the December 21, 1992 Order, the

Court found that there was no just reason to delay the entry of final

judgment on claims disposed of by summary judgment in the

December 3 Order and directed entry of final judgment on those

claims, but failed to make similar findings with respect to those of

plaintiffs’ claims which had been disposed of by way of motion to

dismiss in paragraph 2 of the December 3 Order.

The Court finds that there is no just reason for delaying the

entry of final judgment on the dismissed claims addressed by

paragraph 2 of its December 3 Order. The claims disposed of on

summary judgment have been properly certified for appeal by way

of the December 21 Order. As all of the plaintiffs’ claims set forth

in their Second Amended Complaint have been disposed of pursuant

to dismissal and/or summary judgment, and as the only remaining

claim in this case is a cross-claim between defendants which does

not involve the plaintiffs, there is no just reason why plaintiffs

should not be free to avail themselves at this time of their right to

appeal from final judgment. Therefore, the Court directs the entry

of final judgment on the dismissed claims described in paragraph 2

of the Court’s Order of December 3, 1992, for the reasons set forth

in that Order.

A-20

DATED: January 11, 1993

ROBERT G. RENNER, Senior Judge

United States District Court

A-21

APPENDIX B

STATUTES INVOLVED

4

{

Rule 12. Defenses and Objections—When and How |

Presented—By Pleading or Motion—Motion for |

Judgment on the Pleadings

(b) How Presented. Every defense, in law or fact, to

a claim for relief in any pleading, whether a claim, counterclaim,

cross-claim, or third-party claim, shall be asserted in the responsive

pleading thereto if one is required, except that the following

defenses may at the option of the pleader be made by motion: (1)

lack of jurisdiction over the subject matter, (2) lack of jurisdiction |

over the person, (3) improper venue, (4) insufficiency of process, |

(5) insufficiency of service of process, (6) failure to state a claim |

upon which relief can be granted, (7) failure to join a party under

Rule 19. A motion making any of these defenses shall be made

before pleading if a further pleading is permitted. No defense or

objection is waived by being joined with one or more other defenses

or objections in a responsive pleading or motion. If a pleading sets

forth a claim for relief to which the adverse party is not required to

serve a responsive pleading, the adverse party may assert at the trial

any defense in law or fact to that claim for relief. If, on a motion

asserting the defense numbered (6) to dismiss for failure of the

pleading to state a claim upon which relief can be granted, matters

outside the pleading are presented to and not excluded by the court,

the motion shall be treated as one for summary judgment and

disposed of as provided in Rule 56, and all parties shall be given

reasonable opportunity to present all material made pertinent to such

a motion by Rule 56.

Rule 56 Summary Judgment

(c) Motion and Proceedings Thereon. The motion

shall be served at least 10 days before the time fixed for the

hearing. The adverse party prior to the day of hearing may serve

opposing affidavits. The judgment sought shall be rendered

forthwith if the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law. A

summary judgment, interlocutory in character, may be rendered on

the issue of liability alone although there is a genuine issue as to the

amount of damages.

(e) Form of Affidavits; Further Testimony; Defense

Required. Supporting and opposing affidavits shall be made on

personal knowledge, shall set forth such facts as would be

admissible in evidence, and shall show affirmatively that the affiant

is competent to testify to the matters stated therein. Sworn or

certified copies of all papers or parts thereof referred to in an

affidavit shall be attached thereto or served therewith. The court

may permit affidavits to be supplemented or opposed by depositions,

answers to interrogatories, or further affidavits. When a motion for

summary judgment is made and supported as provided in this rule,

an adverse party may not rest upon the mere allegations or denials

of the adverse party’s pleading, but the adverse party’s response, by

affidavits or as otherwise provided in this rule, must set forth

specific facts showing that there is a genuine issue for trial. If the

adverse party does not so respond, summary judgment, if

appropriate, shall be entered against the adverse party.

(f) When Affidavits are Unavailable. Should it

appear from the affidavits of a party opposing the motion that the

party cannot for reasons stated present by affidavit facts essential to

justify the party’s opposition, the court may refuse the application

for judgment or may order a continuance to permit affidavits to be

obtained or depositions to be taken or discovery to be had or may

make such other order as is just.

B-2

So we

EN ELIMI IE NCBI SET Z