# Appendix — Bennett v. Society of Lloyd's

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1083%3A4

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2005
- **Citation:** 546 U.S. 826

## Text

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APPENDIX A — ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF UTAH,
CENTRAL DIVISION FILED JUNE 10, 2004

INTHE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF UTAH, CENTRAL DIVISION

Case No. 2:02C V-0204TC
THE SOCIETY OF LLOYD’S
Plaintiff,
VS.

WALLACE R. BENNETT, GRANT R. CALDWELL,
CALVIN P. GADDIS, DAVID L. GILLETTE, STEPHEN

M. HARMSEN, KELLY C. HARMSEN, JAMES R. ¥
KRUSE, EDWARD W. MUIR, and KENT B. PETERSEN,

Defendants.

ORDER

On May 13, 2004, a hearing was held on all pending
motions before the Court in this matter. In attendance were
Michael N. Zundel and Thomas R. Barton, counsel for
Plaintiff The Society of Lloyd’s (“Lloyd's”); Franklin Bennett
and David Bennett counsel for Defendant Wallace R. Bennett
(“Bennett”), who was also present; and Steven A. Wuthrich,
counsel for Defendants Stephen M. Harmsen and Kelly C.
Harmsen. Based on the papers filed by the parties, the
argument presented at the hearing, additional materials as
noted below, and good cause appearing therefor,

2a

Appendix A

THE COURT ENTERS THE FOLLOWING ORDERS
as to each of the following motions:

1. Bennett's Amended Motion Challenging Diversity of
Citizenship Jurisdiction of the Court, dated March 4, 2004
and Bennett's Motion to Determine that the Absence of
Diversity of Citizenship Jurisdiction Warrants Dismissal of
this Case, dated March 19, 2004. These motions are both
denied for the reasons set forth in Lloyd’s opposing
memoranda. Specifically, the Court finds that Lloyd's is an
English corporation. Therefore, as a matter of law, Lloyd’s
is a citizen of England. None of the defendants in this matter
are citizens of England. Therefore, diversity jurisdiction is
proper pursuant to 28 U.S.C. § 1332(a)(2). Furthermore, the
Court finds that Equitas Reinsurance, Limited (“Equitas”),
which is the assignor of Lloyd’s underlying claims against
the defendants, is also a citizen of England. Therefore, with
reference to 28 U.S.C. § 1359, the assignment from Equitas
to Lloyd’s is not collusive and does not invalidate the
diversity jurisdiction of this Court. The Court also finds that
Lloyd’s action against Bennett is not a “direct action against
[an] insurer,” and that therefore the diversity jurisdiction of
this Court is not invalidated pursuant to the exception
identified in 28 U.S.C. § 1332(c)(1).

2. Lloyd's Motion to Strike Certain Exhibits to Bennett's
Memorandum in Support of Amended Motion Challenging
Diversity Jurisdiction of the Court, dated March 19, 2004.
This motion is denied as being moot.

3. Bennett's Motion to Set Aside the Final Judgment
Under Rule 60(b), dated March 19, 2004. This motion is

3a

Appendix A

denied. The Court finds that Bennett has not met his burden
of demonstrating, by clear and convincing evidence, that
Lloyd's has committed any fraud or misrepresentation that
would warrant setting aside the Judgment Against Defendant
Bennett.

4. Bennett’s Motion for Protective Order, dated May 10,
2004. This motion is denied. The Court notes that it has
previously denied Bennett’s motion for stay pending appeal
and for relief from posting supersedeas bond, and that Bennett
has not posted a supersedeas bond. Under the circumstances,
the grounds set forth by Bennett in his motion are insufficient
to warrant an order restraining Lloyd’s current collective
efforts.

5. Lloyd's Motion to Hold Defendant Wallace R. Bennett
in Civil Contempt, dated January 26, 2004 (“Motion for Civil
Contempt”). This motion is granted in part and denied in
part for the reasons set forth below. Pursuant to 28 U.S.C.
§ 636(e)(6), Magistrate Judge Nuffer entered an Order
Certifying Facts of Contempt, dated March 23, 2004. This
order was based on Bennett’s refusal to comply with
Magistrate Judge Nuffer’s Order Granting Motion to Compel,
dated December 18, 2004, which Bennett admitted during
the hearing before Magistrate Judge Nuffer on February 24,
2004. However, based on the representations of Bennett’s
counsel at the May 13, 2004, hearing, the Court understands
that Mr. Bennett is now willing to comply with the Order
Granting Motion to Compel. Therefore, the Motion for Civil
Contempt, to the extent that it sought to incarcerate Bennett
until he complied with the Order Granting Motion to Compel,
is denied without prejudice, subject to Mr. Bennett’s full

4a

Appendix A

compliance with this Order. However, the Court finds that
Bennett’s conduct, up until the May 13, 2004 hearing, was
in violation of theOrder Granting Motion to Compel.
Therefore, to the extent that the Motion for Civil Contempt
sought a recovery of reasonable attorneys’ fees, the motion
is granted.

IT IS HEREBY ORDERED that Lloyd’s file and serve
an affidavit of expenses, including reasonable attorneys’ fees,
incurred in conjunction with the Motion for Civil Contempt,
within ten days of the entry of this Order. Bennett shall have
ten days after the service of the affidavit to submit a response
thereto.

IT IS FURTHER ORDERED THAT Bennett shall fully
and completely respond to all outstanding written discovery,
and deliver copies of responsive documents to Lloyd's
counsel’s offices, no later than Friday, June 18, 2004. No
later than May 21, 2004, Bennett shall also provide Lloyd’s
counsel, in writing, five business days on which he wiil be
available for deposition between June 28 and July 9, 2004.
Lloyd's shall select the day (or days) on which the deposition
shall occur. The aforementioned deadlines will not be affected
by motions or requests made in the interim, and will not be
altered except by order of the Court entered prior to the
applicable deadlines. If Bennett fails to adhere to any of the
aforementioned requirements, Lloyd’s is directed to contact
the Court immediately,

DATED this 9" day of June, 2004.

Sa

Appendix A
BY THE COURT:

s/ Tena Campbell
Tena Campbell
U.S. DISTRICT COURT JUDGE

APPROVED AS TO FORM:

Attorney for Wallace D. Bennett

Mr. Bennett has objected to this proposed order. His
objections are without merit and are hereby rejected.

Tena Campbell
6-9-04

6a

APPENDIX B — ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE WESTERN DISTRICT
OF TEXAS, AUSTIN DIVISION FILED MAY 21, 2003

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

CIVIL NO. A-03-CA-9 JN
THE SOCIETY OF LLOYD'S
v.

CHARLES WILLIS BILA
ORDER

Before the Court are Defendant’s Motion to Deny
Recognition of Foreign Judgment (Clerk’s Doc. No. 8),
Defendant’s 12(b)(1) Motion to Dismiss Notice of Filing of
Foreign Country Judgment, and, in the Alternative, Request
for Leave to Conduct Jurisdictional Discovery (Clerk’s Doc.
No. 9), Plaintiff's Opposition to Defendant's 12(b)(1) Motion
to Dismiss Notice of Filing of Foreign Country Judgment
(Clerk’s Doc. No. 10), and Plaintiff's Motion for Recognition
of Foreign Judgment and Opposition to Defendant’s Motion
to Deny Recognition of Foreign Judgment (Cierk’s Doc. No.
11). Having considered the pleadings, case file, and
applicable law, the Court enters the following Order.

Defendant contends that the Court lacks subject-matter
jurisdiction in the instant case because Plaintiff and
Defendant are not diverse parties. The Court disagrees.

7a
Appendix B

Defendant is a Texas resident. Plaintiff is an English
corporation. Society of Lloyd’s v. Turner, 303 F.3d 325, 326-
27 (5" Cir. 2002); Society of Lloyd’s v. Ashenden, 233 F.3d
473, 475 (7" Cir. 2000). As Plaintiff is not incorporated in
Texas and does not have its principal place of business in
Texas, the parties are diverse, and, accordingly, the Court
has subject-matter jurisdiction in this case. See Howery v.
Allstate Ins. Co., 243 F.3d 912, 920 (5" Cir. 2001).

Defendant’s substantive arguments relating to theMotion
to Deny Recognition of Foreign Judgment are that the
judgment is repugnant to Texas public policy and was
obtained in violation of due process of law.' The Fifth Circuit
Court of Appeals has expressly rejected both arguments on
these identical facts. Turner, 303 F.3d at 330-33. Needless
to say, this Court will as well.’

1. Defendant also makes the related argument that the Names,
a group to which Defendant belongs, were not allowed to assert the
defense of fraud in the English proceedings, and, as such, the
judgment should not be recognized. This argument can only be
understood as a subset of the due-process argument in which
Defendant is attempting to object in the collection phase of the case
to the procedures used in the merits phase; this argument has been
squarely rejected. See Ashenden, 233 F.3d at 477-78.

2. The Court would entertain a motion from Plaintiff for
attorneys’ fees and/or sanctions under Feb. R.Civ. P. 11. At first blush,
it appears that the only way the arguments presented by Defendant
could pass muster under Rule 11 is if Defendant plans to pursue
them all the way to the United States Supreme Court (assuming a
request for an en banc hearing by the Fifth Circuit is either denied

or the en banc hearing produces the same result as Turner). Anything
(Cont'd)

8a
Appendix B

IT IS THEREFORE ORDERED, ADJUDGED, AND
DECREED that Defendant’s Motions (Clerk’s Doc. Nos. 8
& 9) are hereby DENIED.

IT IS FURTHER ORDERED, ADJUDGED, AND
DECREED that Plaintiff's Motion for Recognition of Foreign
Judgment (Clerk’s Doc. No. 11) is hereby GRANTED.

SIGNED AND ENTERED this 21“ day of May, 2003.

s/ James R. Nowlin
JAMES R. NOWLIN
CHIEF UNITED STATES DISTRICT JUDGE

(Cont'd)

less than this almost surely falls short of the strictures of Feb. R.
Civ. P. 11(b)(2). Assuming this is what Defendant has planned, it
would weigh heavily in Defendant's favor in the Court’s assessment
of the merits of any motion for fees or sanctions by Plaintiff if ©
Defendant represents this to the Court and follows through on those
representations. If not, Defendant had better produce some novel,
compelling arguments as to why he does not deserve to be sanctioned.

9a

APPENDIX C — ORDER GRANTING MOTION FOR
RECONSIDERATION OF THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF
COLORADO FILED SEPTEMBER 9, 2004

Civil Action No. 02-RB-1959 (OES)

{Consolidated with Civil Action Nos. 02-RB-1960, 02-RB-
1961, 02-RB-1962, 02-RB-1963, 02-RB-1979]

THE SOCIETY OF LLOYD’S,
Plaintiff,
v.

JOHN MEACHEM SOMMER,
Defendant.

ORDER GRANTING MOTION FOR
RECONSIDERATION

Blackburn, J.

Pending is plaintiff's motion for reconsideration of the
court’s sua sponte dismissal of the above-captioned action
for failure to satisfy the elements of diversity jurisdiction as
pled in the case. In its distaissal order, the court found that
the “names” who comprise plaintiff Society of Lloyd’s
(Lloyd’s) “syndicates” are Colorado residents, thereby
defeating diversity of citizenship between plaintiff and
defendant, a Colorado resident. The dismissal order is
premised upon a line of cases represented by Indiana Gas

10a

Appendix C

Co. v. Home Insurance Co., 141 F.3d 314 (7" Cir. 1998),
which, similar to this court’s ruling, found an absence of
diversity between defendants and plaintiff members of
Lloyd’s syidicates of the same state. Plaintiff's motion
prompted additional research by the court, which led to the
court’s perusal of a later Seventh Circuit opinion, Society of
Lloyd’s v. Estate of McMurray, 274 F.3d 1133 (7" Cir.
2001).

In Estate of McMurray the court distinguishes a case
such as Indiana Gas Co., where Lloyd's syndicates are a
party plaintiff and are treated as partnerships for purposes of
the diversity analysis, from cases such as this one, where it
is Society of Lloyd’s itself, a corporation incorporated under
the laws of Great Britain, that is a party plaintiff. Estate of
McMurray, 274 F.3d at 1134 n.1. Where a “name,” or
member, of a plaintiff Lloyd’s syndicate shares citizenship
with a defendant party, diversity is not present.' Where,
however, Society of Lloyd’s is a plaintiff in an action against
a citizen of the United States, diversity of citizenship is
present and federal jurisdiction is appropriate. The above-
captioned matter is an Estate of McMurray type of case and
not an Indiana Gas Co. type of case.*

1. An instructive analysis of Lloyd’s unique organizational
structure in the context of a federal diversity jurisdiction
determination is found in Lowsley-Williams v. North River
Insurance Company, 884 F. Supp. 166 (D.N.J. 1995).

2. See also Society of Lloyd’s v. Turner, 303 F.3d 325 (5" Cir.
2002), and Society of Lleyd’s v. Ashenden, 233 F.3d 473 (7™ Cir.
2000), where federal courts exercised diversity jurisdiction in cases
involving Lloyd’s as a party plaintiff, although jurisdiction was not
challenged by the defendants or addressed by the courts.

lla

Appendix C
THEREFORE IT IS ORDERED as follows:

1. That Plaintiff’s motion for Reconsideration [#47]
filed July 24, 2003, is GRANTED;

2. Tnat my Order Dismissing Plaintiff’s Complaint
and Defendant’s Counterclaims for Lack of Jurisdiction
[#45] filed June 19, 2003, is RESCINDED; and

3. That Plaintiff’s Unopposed Motion To Permit
Withdrawl Of Motion For Reconsideration And Entry
Of Judgment filed September 8, 2004, is DENIED AS
MOOT.

Dated September 9, 2004, at Denver, Colorado.

BY THE COURT:

s/ Rober: E. Blackburn
Robert F. Blackburn
United States District Judge

ey ene

Supreme Court, U.S.
FILED :

JUL 29 2005 | .

i

GS) OFFICE OF THECLERK | '

No. 04-1731 :
IN THE

Supreme Court of the United States

WALLACE R. BENNETT,

Petitioner,

V,

THE SOCIETY OF LLOYDS,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

REPLY BRIEF

WALLACE R. BENNETT
Petitioner, Pro Se
1723 South 2100 East

Salt Lake City, Utah 84108
(801) 581-1516

195716 ce

COUNSEL PRESS
(800) 274-3321 - (800) 359-6859

TABLE OF CONTENTS

Table of Cited Authorities 22... 0... ce cee ee
I. JURISDICTIONAL REQuisiTEs NoT MET ........
II. DE&TERMINATIVE FACTS AND LAW ...........
Ill. THe DEEPER PROBLEM OF ENFORCEABILITY IN

UTAH OF THIS FOREIGN-NATION [English]

AMINE oor eS oi es ok eto aye et a

IV. THis Ltoyps Case IN OVERVIEW ..... Se eae

il
TABLE OF CITED AUTHORITIES

CASES

Carden v. Arkoma Associates,

406 US. 165 (198M 2 ee, ee

Dweck v. Japan CBM Corporation,

B71 0268 fo (9S CH 1988). se ies cai se

Erie Railroad Co. v. Tompkins,

304115 6€ (1938). See

Guaranty Trust Co. v. York,

S15 U8 99 GAS)

Hilton v. Guyot,

559:11:5. 143 (1895) <.<.24.52--:. ia.

Hummel v. Townsend,

Bes F206 307 (S" Cit 1989) os oo i ck

Indiana Gas Co., Inc. v. Home Ins. Company,

141 F.3d 314 (7 Cir. 1998) ............000.

Klaxon Co. v. Stentor Elec. Mfg. Co.,

SIS UB WNT 94 ee

Kramer v. Caribbean Mills, Inc.,

306158. O99 11969).

Mitchell v. Maurer,

BFS IS. BOE ELDON) io REE ao ee eee

Page

ili

Cited Authorities

Mitsubishi Motors Corp. v. Soler

Chrysler-Plymouth, Inc.,
MSA, GIR AEE oo es Gs i eee Oe,

Owen Equipment & Erection Co. v. Kroger,
MAT OS Os TIS Gis

Prudential Oil Corp. v. Phillips Petroleum Co.,
$466.26 409 (27 Ce 1976) on so ves se

Society of Lloyds 's v. Ashenden,
eae te Oi OF CR PO) ei oc bcs

Steel Co. v. Citizens for a Better Environment,
DEES EON eee i os si es es ea

Strawbridge v. Curtiss,
TAs Gt CUBOOL 5 ey bela bee ie es

United States v. Rutherford,
MALTS SOR TINTS) oo ae, i

Vimar Seguros Y Reaseguros, S. A. v. M/V Sky Reefer,
| he BE ks 74. eh >) Eee an pew e rate Creare a

Wainwright v. Goode,
MORSE. 78 Cisee) fo oe hes ee

Whitmore v. Arkansas,
SIS UID Ae TEI) os kee oe eres aS

iv

Cited Authorities
Page
U.S. StaTuTEs CiTED
28 U.S.C. § 1331
(Pemeral OUGsROny oi 2 eo a 5 SS 4
28 U.S.C. § 1332
(Diversity of Citizenship Jurisdiction) .... 1, 2,4, 5,8
28 U.S.C. § 1359
(Diversity Jurisdiction - Collusive Assignments) . . 3
28 U.S.C. § 1652
(The Rules of Decision Act) ...........2.6..4. 5,8
Urtan Statutes CITED
UtaH Cope ANN. § 61-1-22 (1988) .............. 6, 11
Utau Cope Ann. § 78-22b-107(3) (1990)
(Judicial Code, Asserting and defending a foreign-
UE CANIN ce we Se ee 6
UtaH Cope Ann. § 78-22b-114 (1990) |
(Judicial Code, Supplemental general
INLINE OWS 2a os 6 5 ia vo onc 0h RRR RS 6
ENGLISH STATUTES CITED
Ee WAGE OF TGC e Civica Nees ce hese 7

SE PAE OE FURS he sca ek Ca a eke ok ees 7

Cited Authorities
Page

RESTATEMENTS OF LAw CITED

1 RESTATEMENT (THIRD) OF FOREIGN RELATIONS Law
OF THE UNITED StaTEs § 482 (1986)
(“Grounds for Nonrecognition of Foreign
Judgments”) ........ Bee Sa ie a daa wo ics 5

OTHER AUTHORITIES

Christine M. Durham, Employing the Utah
Constitution in the Utah Courts, 2 UTAH BaR
JOURNAL 25 (Issue No. 9, November 1989) ..... 6

Darrell Hall, No Way Out: An Argument Against
Permitting Parties to Opt Out of U.S. Securities
Laws in International Transactions, 97 CoLum. L.
REv. 57 (Issue No. 1, January 1997) .......... 7

Courtland H. Peterson, Choice of Law and Forum
Clauses and the Recognition of Foreign Country
Judgments Revisited Through the Lloyds of London
Cases, 60 La. L. Rev. 1259 (Issue No. 4, Summer
TIPE A ee iia Co eh eer ee 7,8

ee ee. 5

Charles Alan Wright, Arthur R. Miller
& Edward H. Cooper,
14 FEDERAL PRACTICE AND PROCEDURE: JURISDICTION
Cae Rs Ee ea ew ke oe ee ek 3

1
I. JURISDICTIONAL REQuisires Not MET

To sue under 28 U.S.C. § 1332, Congress has determined
that there must be “complete diversity of citizenship.” Owen
Equipment & Erection Co. v. Kroger, 437 U.S. 365, 377 (1978).
Complete diversity must be manifest “as a threshold matter”.
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 95
(1998). “Standing to sue is part of .. . what it takes to make a
justiciable case.” Whitmore v. Arkansas, 495 U.S. 149, 155
(1990).

In the case at bar, Wallace Bennett signed a seminal
Agency Agreement having extensively detailed rights and
duties with Edward Williams Coutts & Partners, Ltd., an
unincorporated British insurance agency. [See Bennett
Petition for Certiorari, pp. 13-15] Thereafter Lloyds of
London caused a sequence of unilateral “assignments”
whereby Coutts was wholly displaced by “Substituted
agent” Castle Agency; followed by “AUA9"; then by
“Equitas”; then to the “Society of Lloyds”, the designated
unincorporated-society-and-also corporation plaintiff
herein. [Docs. 32, 178; Doc. 244, pp. 114-119].

Wallace Bennett became a constituent Member of “The
Society” (#24021C) and a “Name” in Lloyds “community”.
[Compare this factually with Lloyds assertion that there exists
“complete diversity” between ““The Society and Bennett”. ]

Under the applicable law set forth in II. below, requisite
§ 1332 complete diversity is not clearly met; the Society should
not be regarded as having unquestioned standing to sue through
these assignments and as if it were a typical corporation; the
case should be dismissed for failure of fundamental jurisdiction.

2
Il. DETERMINATIVE FACTS AND LAW

. Section 1332(a)(2), 28 U.S. Code specifically requires
foreign plaintiffs to be “citizens or subjects of a foreign
state. .. .” “The Society of Lloyds”, designated collection agent
for a consortium, is not itself comprised, even primarily, of
“subjects of a foreign state”. This failure should have been
revealed by a non-U.S. government corporate disclosure
statement required of Lloyds by Supreme Court Rule 30.6.

For diversity determinations, American case law deems an
unincorporated association to be “a citizen of every state in
which its members reside”. [Hence requisite § 1332 diversity is
not present.] Hummel v. Townsend, 883 F.2d 367, 369 (5® Cir.
1989). Carden v. Arkoma Associates, 494 U.S. 185 (1989).

The Seventh Circuit Court in Indiana Gas Company, Inc.
v. Home Insurance Company, 141 F.3d 314, 316 (1998) held
that complete diversity was lacking in that Lloyds case and
dismissed the litigation pronouncing this policy:

This approach reflects a strong reluctance to extend
the diversity jurisdiction by judicial interpretation — a
reluctance that has characterized the Supreme Court’s
jurisprudence ever since Strawbridge held that
complete diversity is essential.

Id. at 319. [Quoted therein was Mitchell v. Maurer, 293 U.S.
237, 244 (1934):

[E]very federal appellate court has a special obligation
to “satisfy itself not only of its own jurisdiction; but
also that of the lower courts in a cause under review”,
even though the parties are prepared to concede it. ]}

3

Kramer v. Caribbean Mills, Inc., 394 U.S. 823, 827-829 (1969)
indicated factors that exclude jurisdiction recognition of
successive assignments, especially among entities as to which
truly independent status and consideration are questionable:

... there can be little doubt that the assignment was
for purposes of collection. ...“... motivated ... to
make diversity jurisdiction available. . . .”

If federal jurisdiction could be created by assignments
of this kind, .. . a vast quantity of ordinary contract
and tort litigation could be channeled into the federal
courts at the will of one of the parties. Such
“manufacture of Federal jurisdiction” was the very
thing which Congress intended to prevent when it
enacted § 1359 and its predecessors.

To this effect also see Dweck v. Japan CBM Corporation, 877
F.2d 790, 792-793 (9® Cir. 1989).

Prudential Oil Corp. v. Phillips Petroleum Co., 546 F.2d
469, 475 (2™ Cir. 1976) concluded:

... It was suggested by the Supreme Court almost a
century ago that an intercorporate assignment between
a parent and its subsidiary should be treated as
presumptively ineffective for jurisdictional purposes.”

An evident absence of consideration especially taints
the substantive bona fides of Lloyds’ “assignments” herein.
See 14 Wright, Miller & Cooper, Federal Practice and
Procedure § 3639, at p. 109 (2d ed. 1985).

-

4

III. THe DEEPER PROBLEM OF ENFORCEABILITY IN UTAH
oF Tus Foreicn-Nation [English| JUDGMENT

Although this particular 28 U.S.C. § 1332 case should be
dismissed outright for lack of a clear showing by Lloyds of
standing to sue and complete diversity jurisdiction, the history
of this important international litigation provides a timely
context for the High Court to deal with entwined federal — state
relationships.

Two principal vectors impinge: a concern to pay special
deference to agreed English contract clauses, processes and
adjudications / opposed to a Congressional mandate tnat except
in “federal — question” cases [28 U.S.C. § 1331], the law and
equity of the involved forum state “shall be regarded as rules
of decision.”

The ratio decidendi of the Tenth Circuit opinion at bar
seems: “We have already determined that the English judicial
system 1s procedurally above reproach” [Op. p. 38]; and that
“We have no choice under Hilton [c.f. analysis in Bennett
Petition for Cert. p. 10] . . . “but to examine the entirety of the
foreign judicial system, and not the particularity of individual

judgments.” [Op. p. 32]

The Tenth Circuit did qualify the conviction of its overall
endorsement: “English courts found Lloyds guilty of negligence
with respect to their Names” [Op. p. 10] and “Lloyds had been
guilty of serious negligence and/or fraud” [Op. p. 8].

Clauses that prospectively disenable parties from pursuing
statutory remedies in international cases have been questioned
by the Supreme Court: Mitsubishi Motors Corp. v. Soler
Chrysler-Plymouth, Inc., 473 U.S. 614 (1985) at p. 637, n. 19,
{2 quoted in Vimar Segures Y Reaseguros, S. A. v. M/V Sky
Reefer, 515 U.S. 528 (1995, The Supreme Court stated:

5

... | Restatement (Third) of Foreign Relations Law of
the United States § 482(2)(d) (1986) (‘A court in the
United States need not recognize a judgment of the
court of a foreign state if . . . the judgment itself is
repugnant to the public policy of the United States”).
Were there no subsequent opportunity for review and
were we persuaded that “the choice-of-forum and
choice-of-law clauses operated in tandem as a
prospective waiver of a party’s right to pursue
statutory remedies ..., we would have little
hesitation in condemning the agreement as against
public policy.”

Vimar Seguros, at p. 540, ] 2. [Emphasis added. ]

Under The Rules of Decision Act, 28 U.S.C. § 1652, state
law — not federal, not foreign — should govern the resolution of
the legal and equitable claims and defenses of true divergent
parties in a § 1332 action. Erie Railroad Co. v. Tompkins, 304
US. 64 (1938); Guaranty Trust Co. v. York, 326 U.S. 99 (1945);
and Wainwright v. Goode, 464 U.S. 78 (1983): “The views of
the State’s highest court with respect to state law are binding on
the federal courts-“74d-at p. 84, J 2; “the petition for certiorari is
granted, the judgment of the Court of Appeals ... is
reversed. ...” /d. at p. 87, ¥ 3.

The late eminent constitutional authority Charles: Alan
Wright put it this way:

The federal court must keep in mind . . . that its function
is... .to choose the rule it believes the state court, from
all that is known about its methods in reaching
decisions, is likely in the future to adopt.

Wright, Law or FEDERAL Courts (5 ed. 1994) at p. 397.

6

Current Utah Supreme Court Chief Justice Christine M.
Durham presciently emphasized in an article published in 1989
that a State may afford greater protections than under similarly
worded federal statutes. See Bennett Petition for Certiorari,
p. 28.

The Tenth Circuit Court did not understandingly apply this
fundamental tenet of federal — state jurisprudence, and ignored
what should have been controlling state law.' The Supreme Court
declared in United States v. Rutherford, 442 U.S. 554, 555
(1979):

Under our constitutional framework, federal courts do
not sit as councils of revision empowered to rewrite
Legislation in accord with their own conceptions of
prudent public policy. :

Whatever some federal court somewhere might determine,
for example, about waiverability of federal securities act
protections, the Utah Uniform Securities Act is unmistakable:
there can be no waiver of compliance with its investor
protections [UTAH Cope ANN. § 61-1-22(9)], and no suit can be
brought in Utah on any investment contract that is in violation
of the statute [UTAH Cope ANN. § 61-1-22(8)]. Other outcome-
altering statutes, UTAH Cope ANN. 78-22b-107(3) and 78-22b-
114, should also have been looked at relative to ordering
enforcement executions in this state. The questions were not
certified to the Utah Supreme Court, although motions for such
were made.

' “A federal court sitting in diversity applies the choice of law
rules of the state in which it sits.” Klaxon Co. v. Stentor Elec. Mfg. Co.,
313 U.S. 487 (1941). Erie established that there was to be no general
_ “federal common law.” Even Congress has no power to declare
substantive rules of common law applicable in a state; and only Congress
can determine lower federal court subject-matter jurisdiction. [As with
many other states, Utah has not adopted the Uniform Foreign - Money
Judgments Recognition Act. (10" Cir. Op. p. 31)]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1083%3A4. Public record. Not legal advice.