# Opposition Brief — Fluor Daniel (NPOSR), Inc. v. Seward

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1678%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1998
- **Citation:** 525 U.S. 983

## Text

(%

No. 98-545
In The

Supreme Court of the United
OCTOBER TERM, 1997

FLUOR DANIEL (NPOSR), INC.,

a Delaware corporation,
Petitioner,
v.

DAVID G. SEWARD,
Respondent.

On Petition for Writ of Certiorari
To The Supreme Court of Wyoming

REPLY OF PETITIONER TO
BRIEF IN OPPOSITION

DONN J. McCALL
Counsel of Record
Attorney for Petitioner
Brown, Drew, Massey & Sullivan
Casper Business Center
Suite 800
123 West First Street
Casper, Wyoming 82601
Telephone No. (307) 234-1000

LANTAGNE LEGAL PRINTING
801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477

Pome ree er cul

QUESTION PRESENTED

Whether the issue of Due Process was timely raised
and preserved in the district court and the Supreme Court of
Wyoming.

TABLE OF CONTENTS

Question Presented «665
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TABLE OF CITATIONS
Cases Cited:

Barber v. Turberville, 218 F.2d 34 (D.C. Cir. 1954).......
Bieganek v. Taylor, 801 F.2d 879 (7th Cir. 1986)..........

Braniff Airways v. Nebraska State Board of
Equalization and Assessment, 347 U.S. 590,

74 S. Ct. 757, 96 L.Ed. 967 (1964)...........cccsecccsccs.sss.

Bridoux v. Eastern Air Lines, Inc., 214 F.2d 207
(D.C. Cir. 1954), cert. den., 348 U.S. 821,

75 S. Ct. 33, OO L.Ed. 647 (1964) oo... ccccccccccccccscssess

County of Sacramento v. Lewis, ___ U.S.___,

118 S. Ct. 1708, 140 L.Ed.2d 1043 (1998)...

Eastman Kodak Company v. Guasti, 386 N.E.2d 291

Aon: WO icc ee

Eddings v. Oklahoma, 455 U.S. 104,

102 S. Ct. 869, 71 L.Ed.2d 1 (1982)... cee.
Eisler v. Stritzler, 45 F.R.D. 27 (D.P.R. 1968) ......0........
Ellington v. Milne, 14 F.R.D. 241 (E.D.N.C. 1953).........

Evitts v. Lucey, 469 U.S. 387, 105 S. Ct. 830,

SD A Bt TU pce. tesccesicsbaccecscirerarvisincse

*ee eee

se eeee

ved

Fluor Daniel (NPOSR), Inc. v. Seward.
eT ae 118s CO: NOUN) os 2

Gamble v. Pope & Talbot, Inc., 191 F.Supp. 763
RU 5

Greene v. Lindsey, 456 U.S. 444, 102 S. Ct. 1874,
Pe ee WU ION i 45

Helicopteros Nacionales de Colombia v. Hall,
466 U.S. 408, 104 S. Ct. 1968,

ok” REE SESE lle pg 5
Henry v. Mississippi, 379 U.S. 443 (1965) .......................... 7
Hoppe, inc. v. St. Louis Public Service Co.,

oan caved O97 One, 1051).:...........:;...:.... 6
Horn v. Intelectron Corp., 294 F.Supp. 1153

I OE ia 4
Hovey v. Elliott, 167 U.S. 409, 17 S. Ct. 841,

ge 3
Madden v. Wilde, State Examiner, 48 Wyo, 372,

eT ee CN Baek RR CO 2
Meeker v. Rizley, 324 F.2d 269 (10th Cir. mee 4
Menier v. United States, 405 F.2d 245 (Sth Cir. 1968) ........ 4
Mieszkowski v. Norville, 209 N.E.2d 358 i) | MURA. 4

In re Murchison, 349 U.S. 133, 75 S. Ct. 623,
cb nes ctos teas, POE AS 8 a EE 3

North Laramie Land Co. v. Hoffman, 268 U.S. 276,
45 S. Ct.491, 69 L.Ed. 953 | ER ia Men gc SR 4

Oceanic Trading Corp. v. Vessel Diana,
hal Bh NR ARERR Sate nan a Nem 3,4

oS rst— Kamaensomonm. .* Z

Eisler v. Stritzler, 45 F.R.D. 27, 28 (D.P.R. 1968); Gamble v.
Pope & Talbot, inc., 191 F.Supp. 763, 764 (E.D.Pa. 1961).

In determining compliance with due process fairness,
this Court has looked at whether the means of serving proc-
ess fails to afford actual notice. Greene, 456 U.S. at 451, n.
4. Although the entity, Fluor Daniel, did receive nominal no-
tice of this lawsuit, the record reveals that no individual in the
control group, no individual with the authority to respond,
ever received actual notice. To enter a default a judgment
without any opportunity to be heard under these circum-
stances (where there is no actual notice) is fundamentally
unfair and violates the Due Process protection of the Four-
teenth Amendment to the United States Constitution.

In Ellington v. Milne, 14 F.R.D. 241 (E.D.N.C. 1953),
a federal judge vacated a default judgment entered against a
corporation when neither the legal department nor any officer
of the corporation had actual knowledge that the summons
had issued until it was found in storage files located in the
corporation's basement nearly a year after the default. Ap-
parently, some unknown employee had negligently placed
the summons in the basement. Even though service of pro-
cess was technically correct, the court found that to award a
default judgment under such circumstances involving a large
sum of money would amount to denial of due process of law.
ld. at 242. Corporations too are entitled to due process.
Heliconteros Nacionales de Colombia v. Hall, 466 U.S. 408,
414, 104 S. Ct. 1868, 80 L.Ed.2d 404 (1984).

In framing the federal due process question for pres-
entation to the Wyoming courts, Fluor Daniel was not re-
quired to follow any particular form of words or phrases. The
procedural fairness issue was brought before the Wyoming
courts with fair precision. Since the record as a whole shows
by "clear intendment" that the issue was fairly presented, the
issue is to be regarded as having been adequately pre-
sented. People of State of New York ex rel. Bryant v. Zim-
merman, 278 U.S. 63, 67, 49 S. Ct. 61, 73 L.Ed. 184 (1928).
This Court has stated that: "Our jurisdiction does not de-
pend on citation to book and verse." Eddings v. Oklahoma,

5.

455 U.S. 104, 113-14 n. 9, 102 S. Ct 869, 71 L.Ed.2d 1
(1982). Thus, Fluor Daniel's appeal to fundamental fairness
sufficiently alerted the trial court to Fluor Daniel's reliance on
due process principles. See Taylor v. Kentucky, 436 U.S.
478, 482 n. 10, 98 S. Ct. 1930, 56 L.Ed.2d 468 (1978).
Though at the district court level Fluor Daniel's reliance on
due process principles may have been inexplicit, this reli-
ance was within the clear intendment of the fairness issue
and was therefore sufficiently presented. See Braniff Air-
ways v. Nebraska State Board of Equalization and Assess-
ment, 347 U.S. 590, 598-99. 74 S. Ct 757, 98 L.Ed. 967
(1954).

The requirement of reasonable notice goes deeper
than the mere rules of civil procedure; it goes deeply into the
underlying principles of due process:

In our system of jurisprudence reasonable
notice to a litigant (where there exists
even the possibility of action adverse to
his interests) is deemed to be of the es-
sence of fairness and justice. Reasonable
notice to parties whose interests are at
Stake in a contemplated order is a prereq-
uisite to the lawful exercise of the court's
power. Opportunity for a litigant to pres-
ent his views as to the matters instantly
before the court which may affect his
rights is the very foundation stone of our
procedure.

Traders Bank of Kansas City v. Cherokee Investment Co.,
Inc., 642 S.W.2d 122, 127 (Mo. App. 1982), citing Hoppe,
Inc. v. St. Louis Public Service Co., 235 S.W.2d 347 (Mo.
1951). Entry of a default judgment without actual notice
"violates the instinct for fair play." Traders Bank, 642 S.W.2d
at 127. This instinct, the instinctual Craving for fairness that
even children recognize, is the roct of due process. This
Court has held that the "question of when and how defaults
in compliance with state procedural rules can preclude our
consideration of a federal question is itself a federal ques-

-6-

tion." Henry v. Mississippi, 379 U.S. 443, 447, 85 S. Ct. 564,
567, 13 L.Ed.2d 408 (1965). Thus, there can be no doubt
that the federal question was preserved here.

In the case at bar, the Supreme Court of Wyoming
was Clearly troubled by the equities of this case, but thought
it was powerless to intervene. The Wyoming courts should
have abided by their instincts for fairness and given Fiuor

Daniel the opportunity to be heard that due process requires.

CONCLUSION

Petitioner, Fluor Daniel (NPOSR), Inc., respectfully
prays that this Court grant a writ of certiorari to review the
judgment and opinion of the Supreme Court of Wyoming so
that this Court can address the due process issues in the
default judgment procedure.

Respectfully submitted,

By: had Yona

DONN J. McCALL
Counsel of Record
Attorney for Petitioner
Brown, Drew, Massey & Sullivan
Suite 800
123 West First Street
Casper, Wyoming 82601
(307) 234-1000

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1678%3A3. Public record. Not legal advice.