Opposition Brief — Oliver v. Hydro-Vac Services, Inc.

Supreme Court, U.S.

| FILED

No. 97-2067 | JUL 22 1998

In The OFFICE OF THE CLERK

Supreme Court of the United States

aa

October Term, 1997

ERNEST A. OLIVER,

Petitioner,

VS.

HYDRO-VAC SERVICES, INC., et al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

JAMES W. GENTRY, JR. WILLIAM G. COLVIN

SPEARS, MOORE, REBMAN Counsel of Record

& WILLIAMS SHUMACKER & THOMPSON, P.C.

/

Attorneys for Respondent Attorneys for Respondents

Guy Moose Hydro-Vac Services, Inc.

801 Broad Street, Suite 600 and Bill Foxworth

Chattanooga, Tennessee 37402 701 Market Street, Suite S500

™ t- 4 9 Tan > ve’ 2° 2)

Chattanooga, Tennessee 37402

(423) 265-2214

23) 756-7000

WILLIAM H. HORTON

HORTON, MADDOX

& ANDERSON

Attorneys for Respondent

Golden Gallon, Inc.

835 Georgia Avenue, Suite 600

Chattanooga, Tennessee 37402

(423) 265-2560

i

ISSUE PRESENTED FOR REVIEW

Respondents submit that the questions presented, as phrased

by Petitioner, were never presented in the lower courts.

Respondents submit a proper statement of the issue to be:

1. Was Petitioner’s Motion to Set Aside Orders untimely

under Fed. R. Civ. P. 60(b)(3)?

2. Was Petitioner’s Motion to Set Aside Orders pursuant

to the savings clause of Fed. R. Civ. P. 60(b), supported by

clear and convincing evidence of fraud on or by the court?

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PARTIES TO THE PROCEEDING

The petition accurately lists the parties to the proceeding.

Neither Hydro-Vac Services, Inc. nor Golden Gallon, Inc.

has a subsidiary or parent.

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TABLE OF CONTENTS

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1. Petitioner’s appeal is untimely under Fed. R.

as OR ga oa a wey aul eae 5

2. Petitioner’s Motion pursuant to the savings

clause of Fed. R. Civ. P. 60(b), was

unsupported by evidence of fraud on or by

the court and the Motion was properly

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Reasons for Denying the Writ .................... 8

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Contents

Page

TABLE OF CITATIONS

Cases Cited:

Amerinational Industries, Inc. v. Action-Tungsram, Inc.,

EO Sym oe Ce Gs BOWED oe kkcs oe ea he a8 5

Browder v. Dept. of Corrections, 434 U.S. 257, 98 S. Ct.

Pe REE a a oak ea ek RE Ce ee ks 4

DeVito v. Fidelity and Deposit Company of Maryland,

SE Gicee Foe Cee Ge FO) ok coo vos hha a HER SKS 7

Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S.

Bee Oe Be Oe Fe Ee. 8b ves oka Ee a eh 2

Hines v. Royal Indemnity Co., 253 F.2d 111 (6th Cir.

DUES: 050s hs SEs ORR ee Sa OU ea ee 7

Mallory v. Eyrich, 922 F.2d 1273 (6th Cir. 1991)

aR Rh eke SU LAD RO ew eh soe ae ake eee 2

United States v. Twitty, 44 F.3d 410 (6th Cir. 1995) .. 7

Windsor v. U.S. Dept. of Justice, 740 F.2d 6 (6th Cir.

Se re aCe ae he ha ea Arcee Rel eee es 5

Statutes Cited:

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eb Se SOT Naa ed Oe ee Ee oe |

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Contents

Page

Rules Cited:

Federal Rule of Civil Procedure 60 ................ 2, 8

Federal Rule of Civil Procedure 60(b) ............. ‘, 4, 3.6

Federal Rule of Civil Procedure 60(b)(3) ........... 2

SE epee ee erry ees eee 8

Other Authorities Cited:

11 C. Wright and A. Miller, Federal Practice and

PS STO ibe 6k kad ce ew Oe ae ee 6

11 C. Wright and A. Miller, Federal Practice and

PING Se ob ck bn koa Ue eae oa cae 6

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STATEMENT OF THE CASE

This Petition is the last gasp of one of four cases commenced

by Petitioner Ernest Oliver (“Petitioner”) based on events occurri ng

during and following his five months of employment with

Respondent Hydro-Vac Services, Inc. (“Hydro-Vac”) in 1990.

Petitioner’s first claim against his former employer, Hydro-Vac,

was brought pursuant to the whistleblower provisions of a variety

of federal environmental statutes, before the U.S. Department of

Labor, under docket number 91-SWD-00001 (“the Labor Action”)

on September 24, 1990. A decision in the Labor Action was entered

February 5, 1998, from which no appeal was taken by either party.

This action, CIV 1-91-0354, (U.S.D.C., E.D. TN) (‘the Federal

Action”), was commenced on August 26,1991, and asserted claims

under 42 U.S.C. § 6972 (sic), 42 U.S.C. § 1983 and common law

conspiracy (R. |). Respondent Bill Foxworth is the President of

Hydro-Vac, Respondent Golden Gallon, Inc., was a customer of

Hydro-Vac and Respondent Guy Moose is a state regulatory officer

with authority over Hydro-Vac. There were approximately eighty

other defendants in the Federal Action who were never served

with summons. Simultaneous to the filing of the Complaint in the

Federal Action, Petitioner commenced an action in Tennessee state

court, against the same parties, under docket number 91-CV-1711

(“the State Court Action”). The State Court Action contained claims

identical to the claims under 42 U.S.C. § 1983 and common law

conspiracy as contained in counts two and three of the Federal

Action and contained no other claims. The State Court Action was

dismissed for lack of subject matter jurisdiction, which dismissal

was not appealed by Petitioner. In the fourth action, Petitioner

brought claims against multiple Defendants, claiming that certain

Defendants had not re-hired Petitioner as a result of age and sex

discrimination, and that certain other Defendants, including some

counsel of record in the Federal Action and one Respondent herein,

had engaged in a conspiracy to affect Petitioner’s employment,

under docket number 1:96-CV-380 (U.S.D.C., E.D. TN.) (“the

EEOC Action”). The EEOC Action was dismissed on the merits,

2

was appealed by Petitioner, and said Appeal was dismissed by

Petitioner.

After the Federal Action was filed, summons were issued and

served on only four of eighty-five Defendants as of December 31,

1991. These four Defendants, Respondents herein, filed Motions

to Dismiss, Alternative Motions for Summary Judgment, and

Motions for Sanctions, not later than January 29, 1992 (R. 2, 9,

and 12). Petitioner, through his then counsel, responded at various

times thereafter, and was granted additional time to respond when

such request was made of the trial court (R. 16, 18-21, 28, 34). By

Order of August 10, 1992 (R. 56), Petitioner’s action was dismissed /

and a hearing on sanctions was scheduled. A Final Order entering |

sanctions was entered December 28, 1992 (R. 99), following the

hearing on December 16, 1992. The Orders of August 10, 1992, |

and December 28, 1992, were supported by lengthy Memorandum

Opinions of the trial judge, neither of which was published. (App.

5 and R. 98 respectively). No appeal was initiated.

Nothing was done in the Federal Action until January 22,

1997, when Petitioner filed his Motion to Set Aside Orders pursuant

to Fed. R. Civ. P. 60, seeking a set aside of the Orders of August

10, 1992, and December 20, 1992 (sic, the Record shows no Order

of that date), and December 28, 1992 (R. 101). The Motion was

supported by a Memorandum of Law and seven exhibits, but

included no affidavits or other sworn testimony (R. 102). The

Motion was denied January 31, 1996, and Petitioner filed a timely

Notice of Appeal to the Court of Appeals for the Sixth Circuit.

Following briefing, the Court Appeals for the Sixth Circuit

affirmed the Trial Court’s action by Order entered March 23, 1998

(App. 1).

a ee

STATEMENT OF FACTS |

Respondents cannot unravel or dissect Petitioner’s statement

of facts and cannot address all of the perceived misstatements of

fact or law in the petition within the applicable page limitations.

}

3

Petitioner’s statement of facts excerpts incomplete portions of the

record from the Federal Action, the State Action, the Labor Action,

and the EEOC Action, and contains factual assertions which are

neither a part of the record in this action nor supported by

appropriately authenticated documents and sworn testimony. His

allegations of “... a conspiracy ... so large as to infect the

Tennessee State and Federal Court systems, the FBI, the Department

of Justice, and offices of U.S. Attorney General Janet Reno, Vice-

President Albert Gore, Jr., and the Clinton Administration” are so

speculative and unsupported by any factual material that they do

not warrant a response (Petition at 7). Therefore, Respondents

except to Petitioner’s statement of facts and law.

The record in the Federal Action shows that the Motions to

Dismiss and Motions for Summary Judgment were based, in part,

on purely legal arguments, and were supported by Affidavits of

individuals with direct personal knowledge of a variety of

regulatory investigations and enforcement actions taken against

Hydro-Vac. Petitioner opposed these Motions with his own

Affidavit, Affidavits of two former Hydro-Vac employees and

voluminous documentary evidence which was neither authenticated

nor explained by any witness under oath. From the commencement

of this action on August 26, 1991, to the entry of the Order

dismissing the case on August 10, 1992, neither Petitioner nor his

counsel requested any voluntary discovery of any Defendant and

never subpoenaed any witness for a deposition.

Among the allegations which are clearly contradicted by the

record, Petitioner contends information was withheld from him in

the Labor Action, which he claims affected the outcome in the

Federal Action. (Petition at pp. 5-7, 9, 22). However, the

information was not withheld; Petitioner simply did not ask for it

(R. 25 at FW 11, 12).

Petitioner has initiated an incredible attack on U.S. District

Judge Jarvis, claiming Judge Jarvis’ Memorandum Opinion of

4

August 10, 1992, is fraudulent and that there is no “. . . evidence

whatsoever to even remotely support. . . ” a statement to the effect

that Petitioner's Allegations “were groundless.” (Petition at p. 8,

11-12, 20). Petitioner has either forgotten or chosen to ignore the

plain substance of the Affidavit of Guy Moose (R. 25) in which

Moose describes five investigations of Hydro- Vac by Moose’s office

which occurred between September 20, 1990, and December 21,

1990, some initiated by complaints from Petitioner. Petitioner’s

allegations generally involved claims that Hydro-Vac was illegally

disposing of hazardous waste. These investigations showed

respectively, “. . . samples were taken at that time which ultimately

revealed that all samples registered below regulatory levels with

regard to E.P. toxicity tests or TCLP Extract Tests”; “this allegation

was investigated on the same day and found to be without

substance,” and “as a result of the allegations made by Oliver on

December 2Ist, another investigation was made of HVSI’s

installation and again it was found that Mr. Oliver’s allegations

were groundless.” (R. 25, JJ 6-9) (Emphasis added). Judge Jarvis’

finding is clearly and unequivocally supported by the record in

this action.

ARGUMENT

Standard of Review

The leading case on the scope of review of the denial of the

Motion based upon Fed. R. Civ. P. 60(b) is Browder v. Dept. of

Corrections, 434 U.S. 257, 98 S. Ct. 56 (1978). There, the Court

ruled that an appeal from the denial of a Motion pursuant to Rule

60(b) does not bring up the underlying judgment and may be

reviewed only for abuse of discretion. See 434 U.S. at 263, n.7,

98 S. Ct. at 560, n.7.

The Court of Appeals for the Sixth Circuit has held “... in

reviewing the denial of a Rule 60(b) Motion, we are limited to

determining whether the district court abused its discretion in

EE cere RPT cen NR

5

denying the Motion.” Windsor v. U.S. Dept. of Justice, 740 F.2d

6, 7 (6th Cir. 1984). Furthermore, reviewing courts “... may not

consider the merits of the underlying judgment.” Windsor, 740

F.2d at 7 (6th Cir. 1984). See also Mallory v. Eyrich, 922 F.2d

1273, 1279 (6th Cir. 1991) and Amerinational Industries, Inc. v.

Action-Tungsram, Inc., 925 F.2d 970, 975 (6th Cir. 1991).

The only matter properly before this Court is whether or not

the district court abused its discretion in denying Petitioner’s Motion

to Set Aside Orders, with its supporting papers, under Fed. R.

Civ. P. 60(b), because said Motion was untimely or because

Petitioner failed to satisfy the burden of establishing that fraud

was perpetrated on or by the court.

1. Petitioner’s appeal is untimely under Fed. R. Civ. P. 60(b)(3).

Petitioner’s Fed. R. Civ. P. 60(b) Motion to Set Aside Orders

was untimely. Because the Motion was untimely, the district court

was correct in denying the Motion and the Circuit Court of Appeals

was correct in affirming that denial.

Fed. R. Civ. P. 60(b)(3) allows a court, upon motion, to relieve

a party from a final judgment obtained by fraud, misrepresentation

or other misconduct of an adverse party. The rule further provides

“the motion shall be made within a reasonable time, and for reasons

(1), (2), and (3), not more than one year after the judgment, order,

or proceeding is entered or taken.” Because the Motion to Set

Aside Orders was filed more than four years after entry of a final

judgment in the trial court, it was untimely and was properly

denied.

2. Petitioner’s Motion pursuant to the savings clause of Fed.

R. Civ. P. 60(b), was unsupported by evidence of fraud on or

by the court and the Motion was properly denied.

If Petitioner’s Motion is treated as an “an independent action”

to “set aside a judgment for fraud upon the court’, the district

6

court properly denied the Motion and the Circuit Court of Appeals

properly affirmed that action.

Fed. R. Civ. P. 60(b) provides, in pertinent part, that “this rule

does not limit the power of the court to entertain an independent

action ... to set aside a judgment for fraud upon the court.” The

district court was correct in denying the Motion under this “savings

clause”. As noted in 11 C. Wright and A. Miller, Federal Practice

and Procedure § 2860, “. . . the burden of proof of fraud is on the

moving party and that fraud must be established by clear and

convincing evidence. Further, the fraud must have prevented the

moving party from fully and fairly presenting his case.” Petitioner

has failed to meet this burden. Petitioner's Motion and supporting

exhibits failed to present clear and convincing evidence of fraud;

no such evidence was presented in the district court in response to

the Motions to Dismiss and for Summary Judgment, and none

was presented in his Motion to Set Aside Orders. Furthermore,

there is no evidence that any fraud prevented Petitioner from “fully

and fairly presenting his case,” as virtually every document

Petitioner cites as evidence of either alleged wrongdoing or alleged

fraud by any party or counsel, is a part of the record in this case

and is a public record of investigations of and enforcement actions

against Hydro-Vac.

The topic of fraud on the court under this savings clause is

discussed generally at 11 C. Wright and A. Miller, Federal Practice

and Procedure § 2870. The concept of what constitutes fraud upon

the court has been difficult for courts to articulate. No single

definition has been sufficiently stated by any particular court. The

case most commonly cited in this context is Hazel-Atlas Glass Co.

v. Hartford-Empire Co., 322 U.S. 238, 64 S. Ct. 997 (1944). In

that case, an attorney for Hartford-Empire, intended to mislead the

court by having an article concerning a new invention or process

published under the name of a supposedly disinterested third

person, when, in fact, the attorney wrote the article as part of a

plan and scheme to obtain a patent for the invention/process. During

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patent litigation, the patent was upheld and Hazel-Atlas was ordered

to pay substantial royalties to Hartford-Empire. Several years after

entry of the judgment, Hazel-Atlas established by sworn testimony

that the published article, which was relied upon by the patent

office, the district court, and the court of appeals in the underlying

patent litigation, had not been authored by its purported author,

but rather had been written by the attorney for Hartford-Empire.

In this case, the Court had no difficulty setting aside the original

judgment on equitable grounds.

Appellate courts have recognized a requirement that the

underlying judgment be obtained by means which are “manifestly

unconscionable” in order for fraud to be a grounds setting aside a

judgment. See Hines v. Royal Indemnity Co., 253 F.2d 111, 113

(6th Cir. 1958), citing Hazel-Atlas Glass Co. Courts have also

required that there be “. . . a showing of at least a reckless disregard

for the truth.” United States v. Twitty, 44 F.3d 410, 413 (6th Cir.

1995).

A clear expression of these requirements is in a case from

another circuit, DeVito v. Fidelity and Deposit Company of

Maryland, 361 F.2d 936 (7th Cir. 1966). There, the court noted

... conclusory averments of the existence of fraud

made on information and belief and unaccompanied

by a statement of clear and convincing probative facts

which support such belief do not serve to raise the

issue of the existence of fraud, much less to carry the

burden of resolving such issue.

361 F.2d at 938. Neither Petitioner’s Motion nor his supporting

papers satisfied these standards.

Notwithstanding Petitioner’s allegations and claims of some

kind of international conspiracy to “cover up” alleged hazardous

waste dumping, all of his information which shows any

8

environmental wrongdoing by Hydro-Vac comes from public

record of regulatory investigations and enforcement actions taken

against Hydro-Vac. Fact and logic provide no support for

Petitioner’s allegations of a conspiracy.

Finally, it is important to note that Petitioner’s Motion to Set

Aside Orders under Fed. R. Civ. P. 60 was unsupported by sworn

testimony containing facts supporting Petitioner’s allegations.

It is apparent from this Petition that everyone who has disagreed

with Petitioner’s factual or legal analysis or perception has become

a co-conspirator. In Petitioner’s view, every regulator (state and

federal), every judge (state and federal), and every elected or

appointed official (state and federal), who disagreed with Petitioner,

became co-conspirators to violate his civil rights and pollute and

poison the people of North America and the world.

REASONS FOR DENYING THE WRIT

The Petition contains incomplete portions of multiple actions,

and refers to many documents which are not appropriately

authenticated supported by sworn testimony. Petitioner’s Motion

to Set Aside Orders in the Trial Court was not supported by properly

authenticated records or sworn testimony supporting any of his

claims. Petitioner has failed to demonstrate that “an United States

Court of Appeals ... has so far departed from the accepted and

usual course of judicial proceedings, or sanctioned such a departure

by a lower court, as to call for an exercise of this Court’s supervisory

power” as required by Sup. Ct. R. 10. Petitioner has failed to

establish any basis for relief from the Trial Court Orders pursuant

to Fed. R. Civ. P. 60.

9

CONCLUSION

Respondents submit the Court should deny the Petition for

Writ of Certiorari.

Respectfully submitted,

WILLIAM G. COLVIN

Counsel of Record

SHUMACKER & THOMPSON, P.C.

Attorneys for Respondents

Hydro-Vac Services, Inc.

and Bill Foxworth

701 Market Street, Suite 500

Chattanooga, Tennessee 37402

(423) 265-2214

JAMES W. GENTRY, JR.

SPEARS, MOORE, REBMAN

& WILLIAMS

Attorneys for Respondent

Guy Moose

801 Broad Street, Suite 600

Chattanooga, Tennessee 37402

(423) 756-7000

WILLIAM H. HORTON

HORTON, MADDOX

& ANDERSON

Attorneys for Respondent

Golden Gallon, Inc.

835 Georgia Avenue, Suite 600

Chattanooga, Tennessee 37402

(423) 265-2560