Reply Brief — Alcan Aluminum Corp. v. Prudential Assurance Co.

Supreme Court, U.S.

FILED

CLE

NO. 01-1594 LERK

IN THE

SUPREME COURT OF THE UNITED STATES

ALCAN ALUMINUM CORPORATION

Petitioner,

v.

PRUDENTIAL ASSURANCE COMPANY LIMITED

et al.

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

PETITIONER’S REPLY TO RESPONDENTS

BRIEF IN OPPOSITION

Lawrence A. Salibra, II

Counsel of Record

Elisa P. Pizzino

Alcan Aluminum Corporation

6060 Parkland Boulevard

Mayfield Heights, Ohio 44124-4185

(440) 423-6918

Attorneys for Petitioner

Alcan Aluminum Corporation

1629S

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ....ccsssccsssesscssssssscscsssssccsssssssecesessse

TABLE OF AUTHORITIES. ....:ccccscccssssesscssssecccssssssessesssseees iii

a a l

I. LLOYDS DOES NOT DISPUTE THAT BY

DENYING ALCAN POST JUDGMENT INTEREST

ON THE AMOUNTS THAT WERE UNDISPUTED

ALCAN HAS BEEN ECONOMICALLY

PENALIZED FOR APPEALING CITING

EXCLUSIVELY TO BRONSON ..............ccccccccceseeeees l

I]. LLOYDS’ ARGUMENT THAT RULE 39(E)

PERMITS THE DISTRICT COURT TO TAX THE

COST OF THEIR BOND TO ALCAN SIMPLY

DEMONSTRATES THAT EVEN LLOYD’S DOES

NOT BELIEVE THAT THE DISTRICT COURT AND

THE NINTH CIRCUIT OFFERED PLAUSIBLE

JUSTIFICATION FOR WHAT THE DISTRICT

COURT AND THE NINTH CIRCUIT DID................ 3

Ill. LLOYDS’ ATTEMPT TO CHARACTERIZE THE

ISSUE OF THE EFFECTIVE DATE OF JUDGMENT

AS SIMPLY A MATER OF IMPROPERLY

CALCULATING THE INTEREST FROM THE

CORRECT DATE IS A PATENT

MISREPRESENTATION OF THE FACTS. AS IT

ADMITS THE JUDGMENT WAS AMENDED FOR

THE CONVENIENCE OF ANOTHER INSURER TO

CLARIFY A MATTER SOLELY WITH RESPECT

TO IT, NEITHER THE RIGHTS OF LLOYD’S OR

ALCAN WERE MODIFIED BY THE CHANGE AND

EACH OF THE OTHER INSURERS PAID

INTEREST CALCULATED FROM THE ORIGINAL

DATE. THE REAL ISSUE IS WHETHER COURTS

SE

IV.

il

CAN MODIFY LEGAL OBLIGATIONS FOR THEIR

FORMER CLIENTS WHO HAVE CHOSEN NOT TO

APPEAL THE ISSUE. ......::esssssssssssesseseseasnensensnaannnnnnns 3

LLOYD’S ATTEMPT TO CHARACTERIZE THE

NINTH CIRCUIT’S DECISION CONCERNING THE

DAY AFTER THANKSGIVING AS A TRIVIAL

FACTUAL DISPUTE IS DISINGENIOUS BECAUSE

IT IGNORED THE FACT THAT THE ISSUE

WOULD HAVE WIDESPREAD IMPORTANCE IN

CALIFORNIA AND PERHAPS OTHER STATES

WHERE THE DAY HAS ALL THE PRACTICIAL

ATTRIBUTES OF A STATE HOLIDAY. ......:0+0+00200 5

LLOYDS’ OPPOSITION DOES NOTHING TO

DISPUTE THE FACT THAT THE ENTIRE COURSE

OF CONDUCT BY THE COURTS EVIDENCES A

SYSTEMATIC EFFORT TO FRUSTRATE THE

APPLICATION OF THE RULE OF LAW. ..-.--0+000+ 6

TABLE OF AUTHORITIES

Cases:

Bronson & Soutter v. La Crosse & Milwaukee R.R..

IEEE a 1, 2,6

Enserch Corp. v. Shand Morahand & Co, 918 F.2d 462

si scesncsnstsineccenbarnianiicboces 2

Kaiser Aluminum & Chem. Corp. v. Bonjorno, 49 U.S. 827

SII TTI ictiicdasancectheies adendepesnstimnsnuenebndmanminnheceosnsnesoons |

LSO Lid., v. Strohs, 205 F.3d 1146 (9th Cir. 2000) .00.0....... 3

Statutes

I a soisceiddnidenemniiseipniadans 3

ARGUMENT

Lloyd’s opposition is notable in two distinct respects. First, it

carefully avoided addressing the issue of the use of unpublished-

nonprecedential opinions and the abuses illustrated by that

practice in this case. It did so because it had no way of effectively

demonstrating that this practice has not lead to demonstrable

judicial abuse. Second, and the linchpin of the second element of

its response, was to claim that the Bronson & Soutter v. La Crosse

& Milwaukee R.K., 68 U.S. 405 (1863) case rendered by this

Court during the Civil War was a complete and adequate

explanation for the entire series of events in this case and the

obvious refusal of the Ninth Circuit to apply California law.

I. LLOYD’S DOES NOT DISPUTE THAT BY DENYING

ALCAN POST JUDGMENT INTEREST ON THE

AMOUNTS THAT WERE UNDISPUTED ALCAN HAS

BEEN ECONOMICALLY PENALIZED FOR

APPEALING CITING EXCLUSIVELY TO BRONSON.

Whatever one might urge that Bronson stands for, it seems

beyond dispute that there is no holding in that case that post-

judgment interest, a creature of the Federal Rules adopted many

decades later, stops running. Instead, Lloyd’s simply makes the

illogical leap that a stay of execution of the judgment is the

economic equivalent of the elimination of post-judgment interest.

It makes no effort to reconcile this bizarre reasoning with the

clear statement by this Court in Kaiser Aluminum & Chem. Corp.

v. Bonjorno, 49 U.S. 827, 835-836 (1990), that the purpose of

post-judgment interest is to simply protect the value of the

judgment during the delay in payment due to the loss of the time

value of money. Nor does Lloyd’s, offer any logic which

supports its argument that simply because a judgment’s execution

is delayed it must be devalued. It does not follow that because a

mortgage agreement by its terms my not be subject to foreclosure

the accrual of interest stops.

_——

Finally, Lloyd’s makes a disingenuous statement verging on

misrepresentation that there is no conflict between Enserch Corp.

v. Shand Morahand & Co., 918 F.2d 462 (5th Cir. 1990) and

Bronson by attempting to create the illusion of an inconsistency

between our judgment and that in Bronson. Bronson clearly

involved a conflict between the nature of the initial judgment and

the potential judgment after appeal. This case is clearly different

since our initial judgment amount is not impacted by the appeal.

Alcan would simply be entitled to more money and in all other

respects the amount already owed remains the same whether

Alcan won the appeal or not. Moreover, as Alcan clearly

demonstrated in its initial submission, Lloyd’s never argued it was

entitled to a stay because of any inconsistency between the first

judgment and the appeal. Instead, it simply did not want to be put

to the inconvenience of collecting from its syndicates twice.

(Petition at 11)

All that Lloyd’s can offer for its alleged inconsistency is that

the appeal requests that the district court’s opinion “should be

reversed”. Or, put another way, the nature of an appeal is a

request that the district court should be reversed. Thus, under

Lloyds distorted reasoning every appeal results in an

inconsistency between the initial judgment and the requested

appellate relief. <

Rather than offering support for its position that this Court

should disregard review of this case, Lloyd’s Response illustrates

the low level to which the legal process has fallen in this country

due in no insubstantial measure by this Court’s failure to insist on

responsible accountable conduct by_the inferior court’s which

now believe they can do or say what they will without

consequence and accountability— a practice which is now being

emulated by the bar.

3

II. LLOYDS’ ARGUMENT THAT RULE 39(E) PERMITS

THE DISTRICT COURT TO TAX THE COST OF

THEIR BOND TO ALCAN SIMPLY DEMONSTRATES

THAT EVEN LLOYD’S DOES NOT BELIEVE THAT

THE DISTRICT COURT AND THE NINTH CIRCUIT

OFFERED PLAUSIBLE JUSTIFICATION FOR WHAT

THE DISTRICT COURT AND THE NINTH CIRCUIT

DID

The Clerk of the District Court rejected Lloyd’s argument that

Rule 39(e) applied noting that it did not prevail with respect to the

amount subject to the bond. That amount was still owed. If

Lloyd’s had thought the bond was not required, it should have

appealed that issue. It did not.

Lioyd’s then took its argument to the district court which

granted Lloyd’s request placing the costs of the bond on Alcan.

However, the district court did not rely on Rule 39(e) since that

rule was clearly irrelevant.

The matter was submitted to the Ninth Circuit on Alcan’s

appeal where Lloyd’s again tried to resurrect Rule 39(e). Even

the Ninth Circuit did not apply that rule because claiming it was

relevant was ludicrous, and the court instead created the bizarre

explanation that the action of the district court was like granting

legal fees (albeit after an appeal had theoretically finally resolved

all the issues in dispute) citing LSO Lid., v. Strohs, 205 F.3d 1146

(9th Cir. 2000).

il. LLOYDS’ ATTEMPT TO CHARACTERIZE THE

ISSUE OF THE EFFECTIVE DATE OF JUDGMENT AS

SIMPLY A MATTER OF IMPROPERLY

CALCULATING THE INTEREST FROM THE

CORRECT DATE IS A PATENT

MISREPRESENTATION OF THE FACTS. AS IT

ADMITS THE JUDGMENT WAS AMENDED FOR THE

4

CONVENIENCE OF ANOTHER INSURER TO

CLARIFY A MATTER SOLELY WITH RESPECT TO

IT, NEITHER THE RIGHTS OF LLOYD’S OR ALCAN

WERE MODIFIED BY THE CHANGE AND EACH OF

THE OTHER INSURERS’ PAID INTEREST

CALCULATED FROM THE ORIGINAL DATE. THE

REAL ISSUE IS WHETHER COURTS CAN MODIFY

LEGAL OBLIGATIONS FOR THEIR FORMER

CLIENTS WHO HAVE CHOSEN NOT TO APPEAL

THE ISSUE.

Lloyd’s argument with respect to the date of judgment and

post judgment interest is simply another variation of the non-

transparent federal legal system which is becoming the dominant

mode of conduct in this Country because this Court appears to be

indifferent. Clearly, this was a case where lawyers for Alcan were

trying to exercise civility and professional courtesy to its

opposing counsel by not giving a colleague a hard time in

amending a clerical error in a judgment. Lloyd’s was part of this

effort and it was understood that fundamental legal rights were

not going to be compromised.

However, after appeal Lloyds with their former lawyer who is

now the district judge jumped on this courtesy to further enhance

Lioyd’s position. If this was a matter of legitimate concern it

should have been raised in appeal and resolved by a published

precedential opinion. If Alcan’s courtesy was at its peril and

courts were not going to honor and encourage professional

conduct, they should say it publicly so others are forewarned. By

allowing the conduct of the court in punishing courtesy to remain

hidden and then taking to the public platform to lament the sorry

state of professional ethics, this Court is engaging in the worse

form of hypocrisy.

5

IV. LLOYDS’ ATTEMPT TO CHARACTERIZE THE

NINTH CIRCUIT’S DECISION CONCERNING THE

DAY AFTER THANKSGIVING AS A_ TRIVIAL

FACTUAL DISPUTE IS DISINGENUOUS BECAUSE IT

IGNORES THE FACT THAT THE ISSUE WOULD

HAVE WIDESPREAD IMPORTANCE IN CALIFORNIA

AND PERHAPS OTHER STATES WHERE THE DAY

HAS ALL THE PRACTICAL ATTRIBUTES OF A

STATE HOLIDAY.

Lloyd’s ignores the fact that the Ninth Circuit’s decision that

the Friday after Thanksgiving is not really a State holiday is

clearly an attempt by the Ninth Circuit to construct a rule of law

only applicable to Alcan. It ignores this fact because it cannot

explain why this ruling would not be of significant importance to

numerous people. Alcan’s attempt to file on Friday by use of an

Express Courier service is typical. The fact that it was

unsuccessful demonstrates that the “legally accessible

courthouse” may not be practically accessible by conventional

means. The bar deserves to know about this curious set of

circumstances. The fact that Friday which had all the attributes of

a State Holiday, but was really only a state declared

“administrative” holiday which had legal significance to the Ninth

Circuit, but no practical significance apparently to anyone else, is

also something worthy of widespread dissemination.

Clearly, the reasoning behind this rather. remarkable

conclusion on the nature of the Friday holiday was not something

that should not be published and precedential because exhaustive

research was required. It was not published and made

precedential because if it was published the Ninth Circuit had no

intention of ever applying it anyone but Alcan.

Finally, Lloyds clearly mischaracterizes the determination

that the Friday after Thanksgiving was not State Holiday as a

“factual” finding and therefore did not merit this Court’s

attention. This assertion is simply wrong. There are no disputes

6

as to what the Governor did or whether the State Offices were

closed. The issue is exclusively the legal significance of those

facts—a legal issue.

Vv. LLOYDS’ OPPOSITION DOES NOTHING TO

DISPUTE THE FACT THAT THE ENTIRE COURSE

OF CONDUCT BY THE COURTS EVIDENCES A

SYSTEMATIC EFFORT TO FRUSTRATE THE

APPLICATION OF THE RULE OF LAW.

Whether or not one might be able offer a plausible

explanation for one of the issues raised by Alcan, it is clear that

the combination of behavior by the courts including the clearly

recorded conduct by the district court relying explicitly on his

personal experiences as a lawyer for Lloyd’s in contriving a result

clearly not authorized by the Federal Rules (the right to a stay for

the administrative convenience of a non-appealing party)' is

clearly beyond legitimate explanation. Tragically, this type of

judicial conduct is becoming commonplace and this Court’s

failure to address it is viewed as a license to act without

accountability.

Lloyds’ Opposition asks this Court to place its stamp of

approval on its use of a hyper-technical rationale to take

advantage of professional courtesy by ignoring its abuse. It further

asks this Court to undercut the finality of the appellate process by

allowing non-appealed rights to be modified after appeal by a

compromised lower Court. In short, it invites this Court to

become part of the problem not part of the solution.

Dated: June 6, 2002

| The district court had concurred with the 5" Circuit that Bronson was

no longer viable after the adoption of the Federal Rules of Civil

Procedure, which did not incorporate the Bronson rational.

7

Respectfully submitted,

Lawrence A. Salibra, Il

Elisa P. Pizzino

Alcan Aluminum Corporation

6060 Parkland Blvd

Mayfield Heights OH 44124-4185

440-423-6918

Attorneys for petitioner

Alcan Aluminum Corporation