# Opposition Brief — Alcan Aluminum Corp. v. Prudential Assurance Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2002
- **Citation:** 536 U.S. 959

## Text

SUPPETHCS UME, UD.

| - FILED

| MAY 29 20
No. 01-1594 ' ommich Ob TAR OLERK
IN THE
Supreme Court of the United States
ALCAN ALUMINUM CORPORATION,
Petitioner,
v,
PRUDENTIAL ASSURANCE COMPANY LIMITED, et al.,

Defendants,

-and-

CERTAIN UNDERWRITERS AT LLOYD’S OF LONDON,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE
UnitTep STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION FOR RESPONDENT
CERTAIN UNDERWRITERS AT LLOYD’S

OF LONDON
Jay R. SEVER H. ALSTON JOHNSON, III
MakIAN T. HARRISON Counsel of Record
365 Canal Street PHELes DunBAR LLP
Suite 2000 445 North Boulevard
New Orleans, LA 70124 Suite 701
(504) 566-1311 Baton Rouge, LA 70802

- (225) 346-0285

Attorneys for Respondent

174192 ce

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

i
QUESTIONS PRESENTED

(1) Is there a compelling reason to grant a petition for
writ of certiorari where the issues involved are of no
consequence beyond the petitioner’s monetary self-interest?

(2) Did the District Court properly tax against Alcan the
costs of Underwriters’ supersedeas bond pending Alcan’s
appeal?

(3) Did Alcan establish that the District Court Clerk’s
Office was “inaccessible” on the day after Thanksgiving or
that the day after Thanksgiving is declared a holiday in
California?

ll

2 TABLE OF CONTENTS

Questions Presented oo... cic cccesescccssccass

Table of Comet oon cack eens

Table of Cited Authorities .....................

Statement of Jurisdiction ..................05.

Statement of Cube ois accu oe ee ese ak.

Cinsificetiom. .....acananaee ee ree

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

I.

Alcan Fails To Raise An Important Federal
Question Or Articulate A Compelling Reason
To Justify Discretionary Review By This
Comet. ..<000c¢e cee aera seeks es

The District Court Properly Taxed
Underwriters’ Bond Costs Against Alcan. ..

The Issue Of Whether Alcan Timely Filed Its
Appeal Does Not Warrant This Court’s
ROVONM, .. . inc ccanQeanee eee rhea sees ss

Post-Judgment Interest Did Not Accrue
During The Pendency Of Alcan’s Appeal
Because The Execution Of The Judgment
Was Automatically Stayed. ..............

Page

10

lil

Contents
Page
V. The Date Of The Amended Judgment Is The
Correct Inception Date For The Accruement
Of Post-Judgment Interest. .............. 12

es dee ekeneeee eee 13

iv

TABLE OF CITED AUTHORITIES

Page
Cases: .
Bronson vy. LaCrosse & M. R. Co., 68 U.S. 405,
17 L. Ed. 616, 1 Wall 405 (1863) ............. 2, 11
Budinich v. Becton Dickinson & Co., 486 U.S. 196,
108 S. Ct. 1717, 100 L. Ed. 2d 178 (1988) ..... 10
Enserch Corp. v. Shand Morahan & Co., Inc.,
918 P26 SG2 CG Cae, FOGG) cnn ccc cee eesas, 11,12
Keyser v. Sacramento City Unified Sch. Dist.,
pe we, ee er rere 9
Layne & Bowler Corp. v. Western Well Works, Inc.,
261 U.S. 387, 43 S. Ct. 422, 67 L. Ed. 712 (1923)
EP eh SRP ey yee IP en Ferre 7
Rice v. Sioux City Memorial Park Cemetery, Inc.,
349 U.S. 70, 75 S. Ct. 614, 99 L. Ed. 897 (1955)
va Raw ee Kee ee EO a a 7
United States v. Stringfellow, 1993 WL 565393
CP Ce, TP) os sc ee iv ee ts arena wanes l
Statutes:
mUGH SS. Ge

muse 11 12

v
Cited Authorities
Page

Rules:
Fed. R. App. P. 26(a)(3) 0.2... eee ee eee eens 4,9
Fed. R. App. P. 26(a)(4) ........-ee eee e eee eeee 4,9
Fed. R. App. P. 39(8) 2.2... cece cee cece es ceeee 9
Fat R.A EMO ois ire 6,8
U.S. Sap. Ct. Rule 10 o.oo ccc ccna 6, 7, 10
U.S. Sup. Ct. Rule 15(2) .......... cee sence ees 5
Local Rule 16.4.15 for the United States Central

District of Califormia ............2.eeeeeeeee 6

oe

l

STATEMENT OF JURISDICTION

The United States Court of Appeals for the Ninth Circuit
(“Ninth Circuit”) entered its judgment on January 24, 2002.
Alcan Aluminum Corporation (“Alcan”) filed its petition for
writ of certiorari on April 23, 2002 and the matter was placed
on the docket on April 29, 2002. Alcan asserts jurisdiction
in this Court based on 28 U.S.C. § 1257(a).

STATEMENT OF CASE

This case arises from an insurance coverage dispute
between Alcan and its primary and excess insurers regarding
Alcan’s coverage for liability Alcan incurred in the United
States v. Stringfellow and Newman v. Stringfellow lawsuits.
Plaintiffs in those lawsuits sued Alcan because of its disposal
activities at the Stringfellow Acid Pit Site in Riverside,
California (“Stringfellow Site”). In 1995, Alcan filed suit
against certain of its insurers seeking recovery of defense
costs and indemnity payments incurred due to the United
States v. Stringfellow and Newman v. Stringfellow claims."

On June 19, 1997, the United States District Court for
the Central District of California (“District Court”) entered
judgment in favor of Alcan against Underwriters for
$1,544,302.53. On July 18, 1997, the District Court entered
an amended judgment which was, as to the issues presently
before this Court, identical to the June 19, 1997 judgment.

1. The underlying lawsuits involved numerous claims for

property damage and bodily injury allegedly caused by hazardous
materials disposed of at the Stringfellow Site.

2

On August 1, 1997, Alcan appealed various rulings of
the District Court’s July 18, 1997 amended judgment to the
Ninth Circuit. In particular, Alcan sought an increase in the
amount of the judgment rendered against Underwriters.
Because Alcan, the prevailing party, had appealed the District
Court’s judgment, Underwriters asserted that the execution
of the judgment was automatically stayed and cited the United
States Supreme Court decision, Bronson v. LaCrosse &
M. R. Co.’ The District Court disagreed with Underwriters’
assertion and ordered Underwriters to pay the judgment on
October 6, 1997. In response, Underwriters posted a
supersedeas bond in the amount of $1,132,341.06 (which
reflects the gross judgment of $1,544,302.53 less the
proportionate share of insolvent non-represented companies)
on November 21, 1997. Alcan was dissatisfied with the
supersedeas bond and threatened to executeon the judgment.
Thus, Underwriters filed an ex parte motion Seeking
clarification that Underwriters were entitled to post a
supersedeas bond under the District Court’s October 6, 1997
order. On November 24, 1997, the District Court granted
Underwriters’ ex parte motion and allowed the posting of
the bond.

Alcan appealed the District Court’s November 24, 1997
ruling to the Ninth Circuit, asserting that the District Court
had erred in allowing Underwriters to post a supersedeas
bond. On March 31, 1999, the Ninth Circuit held that
execution of the District Court’s July 18, 1997 judgment was
automatically stayed because Alcan, as the prevailing party,
had appealed the District Court’s judgment. In addition, the
Ninth Circuit found that Underwriters should not have been

2. 68 U.S. 405, 17 L. Ed. 616, 1 Wall 405 (1863).

3

required to post a supersedeas bond. In particular, the Ninth
Circuit stated, in pertinent part:

[O]nce Alcan filed its appeal challenging the
merits of the district court’s allocation order, the
execution of the judgment against its insurers was
automatically stayed. ... The supersedeas bond
actually provided Alcan protection that it was not
entitled to because a bond was not required to stay
the execution of the judgment in this case.’

Based on the Ninth Circuit’s opinion that the District
Court’s judgment had been automatically stayed by Alcan’s
appeal, Underwriters filed a Motion for Adjustment of Post-
Judgment Interest in the District Court on July 27, 1999.
Underwriters argued that post-judgment interest should not
have accrued during the time period of Alcan’s appeal because
the judgment was automatically stayed during the pendency
of that appeal. Underwriters also argued that the inception
of post-judgment interest should be the entry date of the
District Court’s amended judgment (July 18, 1997).
In response, Alcan asserted that Underwriters should not
benefit from the Ninth Circuit’s judgment because
Underwriters did not appeal the order regarding the posting
of the supersedeas bond.

On August 23, 1999, the District Court granted
Underwriters’ motion and held in pertinent part that: (1) the
proper post-judgment interest inception date is July 18, 1997;
(2) post-judgment interest is owed from July 18, 1997 (date
of the amended judgment) to August 1, 1997 (date Alcan

3. Alcan Aluminum Corp. v. Prudential, et al., 173 F.3d 859,
1999 WL 201610 (9th Cir 1999), p. 4.

4

filed its appeal) and from August 2, 1999 (date the Ninth
Circuit’s mandate was filed and spread in the District Court)
until the date the judgment is paid; and (3) post-judgment
interest did not accrue during the pendency of Alcan’s appeal
because the appeal resulted in an automatic stay of the District
Court’s judgment.

On. November 29, 1999 (the Monday after Thanksgiving
day), Alcan filed its Notice of Appeal on the post-judgment
interest issues. On January 24, 2002, the Ninth Circuit held
that Alcan’s appeal on this issue was untimely and, thus, that
it had no jurisdiction to hear the appeal because the timely
filing of a notice of appeal is “mandatory and jurisdictional.”
Alcan’s appeal was untimely because the Notice of
Appeal was due on November 26, 1999, the Friday after
Thanksgiving, and Alcan filed its Notice of Appeal on
November 29, 1999, the Monday after Thanksgiving.
The Ninth Circuit ruled that Alcan’s appeal was not timely
filed because it was filed three days late and because Alcan
failed to show that the District Court Clerk’s Office was
“inaccessible” on the day the appeal was due (the Friday after
Thanksgiving) or that the Friday after Thanksgiving was
“declared a holiday” in California.‘ On this Court, Alcan
seeks review of this ruling and of the post-judgment interest
issues.

On August 11, 1999, Underwriters filed a Bill of Costs
with the Clerk of Court to recover the bond premiums they
had paid to post the supersedeas bond. The Clerk of Court,
however, denied Underwriters’ Bill of Costs. Underwriters
then filed a motion with the District Court to reverse the
Clerk of Court’s ruling, asserting that the federal and local
rules of Civil Procedure provide that premiums paid for a

4. Fed. R. App. P. 26(a)(3) and (4).

5

supersedeas bond should be taxed in favor of the prevailing
party. On December 6, 1999, the District Court ruled in
Underwriters’ favor and ordered Alcan to pay Underwriters’
bond costs. Alcan also appealed this ruling to the Ninth
Circuit. On January 24, 2002, the Ninth Circuit affirmed the
District Court’s judgment awarding Underwriters their
supersedeas bond costs. The Ninth Circuit held that because
the District Court’s July 18, 1997 judgment was automatically
stayed during the pendency of Alcan’s appeal: (1) Alcan
had no right to force Underwriters to pay the judgment;
(2) Underwriters were not required to post the bond; and
(3) the bond actually served to protect Alcan’s interests.°
Alcan also seeks review of this ruling.

CLARIFICATION

Counsel are obligated to advise this Court of any
perceived misstatements of the law or fact made in petition
for writ of certiorari.© Accordingly, Underwriters note the
following.

Alcan asserts that the Ninth Circuit “created a new right
in the district court to permit it to assign costs of the insurer’s
bond... .” The District Court’s order requiring that Alcan
pay Underwriters’ bond costs is based on local court rules
and the Federal Rules of Appellate Procedure, which provide

5. Alcan Aluminum Corp. v. Prudential, et al., 173 F.3d 859,
- 1999 WL 201610, p. 4 (9th Cir. 1999). (“The supersedeas bond
actually provided Alcan protection that it was not entitled to because
a bond was not required to stay execution of the judgment in this
case.”)

6. U.S. Sup. Ct. Rule 15(2).

ii eee, eee

6

that costs on appeal, including premiums paid for a
supersedeas bond, are taxable for the benefit of the party
entitled.’

REASONS FOR DENYING THE WRIT

I. Alcan Fails To Raise An Important Federal Question
Or Articulate A Compelling Reason To Justify
Discretionary Review By This Court.

Supreme Court review on a writ of certiorari is a matter
of judicial discretion, which is granted only for “compelling”
reasons.® Under U.S. Sup. Ct. Rule 10, there are certain
factors which the Supreme Court considers in determining
whether to grant a petition for writ for certiorari. In sum,
these factors include: (1) whether either a United States Court
of Appeal or a state court of last resort has entered
a conflicting decision on the same important matter;
(2) whether such a decision 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 the Supreme Court’s supervisory powers;
(3) whether a court has decided an important question of
federal law that has not been, but should be, settled by the
Supreme Court; or (4) whether a court has decided an
important federal question in a way that conflicts with
relevant decisions of the Supreme Court. U.S. Sup. Ct. Rule
10 further provides that “[a] petition for writ of certiorari is

7. Fed. R. App. P. 39(e) and Local Rule 16.4.15 for the United
States Central District of California.

8. U.S. Sup. Ct. Rule 10, 28 U.S.C.A.

-

rarely granted when the asserted error consists of erroneous
factual findings or the misapplication of a properly stated
rule of law.”

Alcan’s petition fails to: (1) meet any of the criteria set
forth by Sup. Ct. Rule 10; (2) raise any compelling reason
for review of the Ninth Circuit’s judgment by this Court; or
(3) present an important federal question. Indeed, the Ninth
Circuit’s judgment does not conflict with the decision of
another United States court of appeals, a state court of last
resort or with a decision of this Court.

With regard to whether a petition for writ of certiorari
should be granted, this Court has stated the following:

° [I]t is very important that we be consistent in not
granting the writ of certiorari except in cases
involving principles the settlement of which is of
importance to the public, as distinguished from
the parties, and in cases where there is a real and
embarrassing conflict of opinion and authority
between the Circuit Courts of Appeals.’

¢ [T]his Court does not sit to satisfy a scholarly
interest... . Nor does it sit for the benefit of
particular litigants.'°

9. Rice v. Sioux City Memorial Park Cemetery, Inc. 349 US.
70, 79, 75 S. Ct. 614, 619-620, 99 L. Ed. 897 (1955), citing Layne &
Bowler Corp. v. Western Well Works, Inc., 261 U.S. 387, 393, 43
S. Ct. 422, 423, 67 L. Ed. 712 (1923).

10. Id., 349 U.S. at 74, 75 S. Ct. at 616 (citations omitted). —

8

Alcan has failed to present a compelling reason for this
court to exercise its discretionary judicial review as Alcan
seeks review of issues, which are of no significance to the
public, but rather are of consequence only to Alcan’s own
monetary interest. Specifically, Alcan seeks review of the
Ninth Circuit’s rulings that Alcan was obligated to pay
Underwriters’ bond costs and that Alcan’s Notice of Appeal
was not timely filed. Although not addressed by the Ninth
Circuit, Alcan also seeks review of the District Court’s
judgment that post-judgment interest accrued from the date
of the amended judgment (July 18, 1997) and that post-
judgment interest did not accrue during the pendency of
Alcan’s appeal. These rulings obviously have no precedential
value to warrant this Court’s discretionary review. In addition,
it is evident that the outcome of the issues Alcan appeals
lack national significance. The outcome of the issues will
only affect whether Alcan is obligated to pay Underwriters’
bond costs, whether Alcan timely filed its appeal on the post-
judgment interest issues and whether post-judgment interest
was properly calculated.

Il. The District Court Properly Taxed Underwriters’
Bond Costs Against Alcan.

Alcan seeks review of the Ninth Circuit’s ruling affirming
the District Court’s taxing of Underwriters’ bond costs against
Alcan. Federal Rule of Appellate Procedure 39(e) provides
that “. . . costs on appeal are taxable in the district court for
the benefit of the party entitled to costs under this rule. . . .”
This rule includes premiums paid for a supersédeas bond."
The plain language of Rule 39(e) shows that the taxation of
costs is mandatory. In addition, Federal Rule of Appellate

11. Fed. R. of App. P. 39(e).

9

Procedure 39(a) provides, in effect, that the prevailing party
is entitled to costs, i.e. “if a judgment is affirmed, costs are
taxed against the appellant.” Because the insurers, including
Underwriters, prevailed at the Ninth Circuit, they were clearly
entitled to costs. In fact, the Ninth Circuit expressly stated
that “[c]osts are awarded to defendants-appellees General,
Lloyd’s, Home and Continental.”

The taxing of Underwriters’ bond costs against Alcan is
further supported by the Ninth Circuit’s ruling that
Underwriters were not required to post the bond.'? Based on
the foregoing, it is clear that bond costs were properly
awarded to Underwriters and that this issue does not require
this Court’s review.

III. The Issue Of Whether Alcan Timely Filed Its Appeal
Does Not Warrant This Court’s Review.

It is undisputed that Alcan filed its appeal three days
late. The only issue before the Ninth Circuit was whether
‘ Alcan established that the District Court Clerk’s Office was
“inaccessible” on the day after Thanksgiving (November 26,
1999) when the appeal was due or whether that day was
“declared a holiday” in California.'* The lower court’s
findings that the Clerk’s Office was not “inaccessible” and
that the day after Thanksgiving was not “declared a holiday”
are factual findings, which cannot be reversed absent a

12. Alcan, 173 F.3d 859, 1999 WL 201610 at p. 4.

13. Id.

14. Fed. R. App. P. 26(a)(3) and (4); Keyser v. Sacramento City
Unified Sch. Dist., 265 F.3d 741 (9th Cir. 2001).

“——

10

conclusion that the factual findings are clearly erroneous.
According to Sup. Ct. Rule 10, “a petition for writ of
certiorari is rarely granted when the asserted error consists
of erroneous factual findings or the misapplication of a
properly stated rule of law.” On this basis alone, this Court
should decline to review this issue.

Further, the lower courts’ conclusion that Alcan failed
to show that the Clerk’s Office was “inaccessible” on the
day after Thanksgiving when the appeal was due or that the
day was “declared a holiday” in California is supported by
the record and is not clearly erroneous. This Court has held
that a court of appeals is without jurisdiction to review the
merits of a case, where the notice of appeal was not timely
filed.'5 Thus, the Ninth Circuit correctly dismissed Alcan’s
appeal on the post-judgment interest issues.

IV. Post-Judgment Interest Did Not Accrue During The
Pendency Of Alcan’s Appeal Because The Execution
Of The Judgment Was Automatically Stayed.

Even if Alcan’s appeal had been timely filed,
Underwriters would have prevailed on the merits. Alcan
asserts that it has been penalized for appealing the District
Court’s judgment by the denial of post-‘udgment interest
during the pendency of its appeal. The Ninth Circuit,
however, ruled that the execution of the District Court’s
judgment was automatically stayed by Alcan’s appeal of that
judgment.'* In so holding, the Ninth Circuit relied on a

15. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 108
S. Ct. 1717, 100 L. Ed. 2d 178 (1988).

16. Alcan, 173 F.2d 859, 1999 WL 201610 at p. 4.

11

decision of this Court, Bronson v. La Crosse & M. R. Co.,
which closely resembles this case in that an appeal was filed
by victorious plaintiffs.’ In Bronson, this Court stated that
because the plaintiffs had appealed the judgment, “it would
be against all reason and principle to permit them to proceed
in the execution of it, pending the appeal.” '* This Court also
specifically stated that “(t]he appeal suspends the execution
of the decree.” '? Accordingly, because execution of the
judgment was suspended and post-judgment does not accrue
on a judgment that is not due, the District Court properly
ruled that post-judgment interest did not accumulate during
the pendency of Alcan’s appeal.

Alcan asserts that the United States Court of Appeals
for the Fifth Circuit’s decision in Enserch Corp. v. Shand
Morahan & Co., Inc. conflicts with the lower courts’ ruling
that Alcan’s appeal suspended execution of the judgment.”
In actuality, that decision is not in conflict. Rather, the
Enserch decision more narrowly interprets Bronson. In
particular, the Fifth Circuit concluded that “Bronson suggests
that a lower court judgment may be suspended without
bond when the relief sought by the prevailing party on appeal
is inconsistent with enforcement of the lower court’s
judgment.”' The relief sought by Alcan in the underlying
appeal was inconsistent with the District Court’s judgment.

17. 68 U.S. 405, 17 L. Ed. 616, 1 Wall. 405 (1863).
18. 68 U.S. {1 Wall) at 409-410.
19. Id. at 410

20. 918 F.2d 462 (Sth Cir. 1990)

21. 918 F.2d at 464.

12

In particular, Alcan appealed the District Court’s allocation
ruling, alleging that the District Court’s decision was legally
unfounded and should be reversed. For this reason, enforcement
of the judgment would have been inconsistent with the relief
sought in Alcan’s appeal. As such, even under Enserch, Alcan’s
appeal effected an automatic stay of the judgment against
Underwriters and Underwriters were not required to post a bond.
Thus, it is clear that Enserch does not conflict with the ruling at
issue here.

Based on the foregoing, it is evident that the District Court’s
ruling is not in conflict with a decision of any court and that the
result of Alcan’s appeal has no significance beyond Alcan’s
monetary self-interest. Thus, this issue does not merit review.

V. The Date Of The Amended Judgment Is The Correct
Inception Date For The Accruement Of Post-Judgment
Interest.

Under 28 U.S.C. § 1961(a), “interest shall be calculated
from the date of entry of judgment.” While the District Court
initially entered judgment on June 19, 1997, that judgment was
clarified and the amended judgment was entered on July 18,
1997. Because the amended judgment was entered on July 18,
1997, that is the earliest date from which post-judgment interest
can accrue. Thus, the District Court correctly ruled that post-
judgment interest began accumulating on July 18, 1997. Because
the lower court’s conclusion on this issue was correct and the
result is only of consequence to Alcan, this Court should decline
to review it.

13

CONCLUSION

Alcan has fallen well short of articulating a compelling
reason to justify the exercise of this Court’s discretionary
review. The issues involved have no importance beyond
Alcan’s monetary self-interest. The lower courts’ rulings do
not conflict with a decision of this court. The rulings have
no precedential value and do not affect any matter of public
consequence. Alcan’s petition should be denied.

Respectfully submitted,

H. AtsTon Jounson, Ii
Counsel of Record
PHELPs DUNBAR LLP
445 North Boulevard
Suite 701

Baton Rouge, LA 70802
(225) 346-0285

Jay R. SEVER

MakRIAN T. HARRISON
365 Canal Street

Suite 2000

New Orleans, LA 70124
(504) 566-1311

Attorneys for Respondent

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1101%3A2. Public record. Not legal advice.