Opposition Brief — Chang v. Argonne National Laboratory

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Supreme Court, us

FILED

On MAR 27 1992

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No. 91-1332 G@FFICE OF THE CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

POLING CHANG,

EXECUTRIX OF THE ESTATE OF HAN CHANG,

Petitioner,

ARGONNE NATIONAL LABORATORY,

Respondent.

Petition For Writ Of Certiorari To The United

States Court Of Appeals For The Seventh Circuit

RESPONDENT’S BRIEF IN OPPOSITION

RONALD CLAY BENNETT

Counsel of Record

DONALD J. MCNEIL

KECK, MAHIN & CATE

233 South Wacker Drive

Chicago, Illinois 60606-6589

(312) 876-3371

Counsel for Respondent

March 27, 1992

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

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QUESTIONS PRESENTED

1. Whether Poling Chang, who was not named in the

notice of appeal below, has standing to petition this Court

for a writ of certiorari.

2. Whether the petition for writ of certiorari was time-

ly filed.

3. Whether the court of appeals correctly dismissed the

appeal of Dr. Han Chang for lack of jurisdiction because

Dr. Han Chang, who was named in the notice of appeal

below, was not a party when the trial court entered the

judgment from which Dr. Han Chang appealed.

il

LIST OF PARTIES

The notice of appeal to the Seventh Circuit listed Ivan

Von Zuckerstein, Dr. Devabhaktuni Ramaswami, Dr. Han

Chang, Dr. Mohan Jain and Josip Vresk as appellants. The

appeal of all parties except Dr. Han Chang currently is

pending in the court of appeals.

The sole appellee in the court of appeals was Respon-

dent Argonne National Laboratory.’

1 Pursuant to Rule 29.1, Respondent submits the following infor-

mation: Argonne National Laboratory is owned by the United

States Department of Energy and operated under contract by The

University of Chicago.

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TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED .................. i

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py RS ee yy 4s ili

TABLE OF AUTHORITIES ................. iv

Cog) 8 es 0 ra 1

ake 56 Ha SVN Goede s 0 bas bed ewes 2

STATEMENT OF THE CASE ............... 2

REASONS FOR DENYING THE WRIT ..... 5

I. Poling Chang has no standing to petition

this court for a writ of certiorari because

she was not a party to the judgment in the

acc cab hk x6 ¢e0ss eases i's 5

II. The petition was not filed within 90 days

after the entry of the order dismissing Dr.

ee Freer eres 6

III. The court below followed the letter and

i 8 freee errr 8

IV. This Court need not resolve any split among

the circuit courts of appeal because no such

rr errr rer re reat reer 13

I 15

RESPONDENT'S APPENDIX ............... infra

iv

TABLE OF AUTHORITIES

CASES PAGE

Association of American Medical Colleges v. Cuomo,

a ee FB et | pre ry e rrr rr ee 14

Brown v. Palmer, 915 F.2d 1435 (10th Cir. 1990) .. 13

Federal Trade Commission v. Minneapolis-Honey-

well Regulator Co., 344 U.S. 206 (1952) ...... 6, 7

Fitzpatrick v. Catholic Bishop of Chicago, 916 F.2d

ot Bt PT rrr rrr Tere 13

Ford v. Nicks, 866 F.2d 865 (6th Cir. 1989) ..... 14

Hartford Casualty Ins. Co. v. Borg-Warner Corp.,

913 F.2d 419 (7th Cir. 1990) ............... 14

In re Leaf Tobacco Board of Trade, 222 U.S. 578

NES Macs und ee wed Was Wee Ree ier eee eo 6

King v. Otasco, 861 F.2d 438 (5th Cir. 1988) .... 13

Kowaleski v. Director, OWCP, United States De-

partment of Labor, 879 F.2d 1173 (3d Cir. 1989),

cert. denied, 110 S. Ct. 1114 (1990) ....... 11, 12, 15

Marino v. Ortiz, 484 U.S. 301 (1988) .......... 6

Masquerade Novelty, Inc. v. Unique Industries,

Inc., ‘912 F.2d 663 (3d Cir. 1990) .......... 14, 15

Minority Employees of Tenn. Dept. of Employ-

ment Security, Inc. v. Tennessee, 901 F.2d 1327

(6th Cir.), cert. denied, 111 S.Ct. 210 (1990) ... 14

National Center for Immigrants’ Rights v. I.N.S.,

SOS F.2a S464 Gth Car. FSGR) 2... ccc sevcees 14

Torres v. Oakland Scavenger Co., 487 U.S. 312

bt Cerrar reer rere y etre ror 8-12, 15

Von Zuckerstein, et al. v. Argonne National Lab-

oratory, No. 86 C 6304, 1991 U.S. Dist. LEXIS

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STATUTES

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No. 91-1332

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

POLING CHANG,

EXECUTRIX OF THE ESTATE OF HAN CHANG,

Petitioner,

¥.

ARGONNE NATIONAL LABORATORY,

Respondent.

Petition For Writ Of Certiorari To The United

States Court Of Appeals For The Seventh Circuit

RESPONDENT’S BRIEF IN OPPOSITION

The Respondent, Argonne National Laboratory, respect-

fully requests that this Court deny the Petition for Writ

of Certiorari seeking review of the Seventh Circuit’s order

dismissing the appeal of Dr. Han Chang.

OPINIONS BELOW

The opinions of the court of appeals (Pet. App. pp. 1la-5a)

are unreported. The opinion of the district court enter-

ing judgment for Respondent is reported solely as Von

Zuckerstein, et al. v. Argonne National Laboratory, No.

86 C 6304, 1991 U.S. Dist. LEXIS 7334 (N.D. Ill. June

1, 1991).

se

JURISDICTION

The order of the court of appeals (Pet. App. pp. la-2a)

dismissing Dr. Han Chang’s appeal was entered on Sep-

tember 3, 1991. On September 20, 1991, Dr. Han Chang

filed an untimely petition for rehearing (styled ‘Motion

for Reconsideration’’), which was denied by the court of

appeals on October 9, 1991.

The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1). As Respondent discusses more fully below, the

Petition for Writ of Certiorari should be dismissed for lack

of jurisdiction because Poling Chang, who filed the peti-

tion, was not a party to the judgment of the court of ap-

peals and because the petition was not timely filed.

STATEMENT OF THE CASE

For 17 trial days, Petitioner Poling Chang sat at coun-

sel’s table (with the same two attorneys who later pur-

sued the Seventh Circuit appeal herein and the Petition

for Writ of Certiorari herein) as the employment discrim-

ination case of Petitioner and her four co-plaintiffs was

tried. Indeed, she took the witness stand under the di-

rect examination of counsel Mark Leroy LeFevour. Poling

Chang never worked for Respondent. Her husband, Dr.

Han Chang, did, but he died before this case came to trial.

Accordingly, on July 17, 1990, the district court entered

an order, pursuant to motion by counsel for the plaintiffs,

substituting Poling Chang as party plaintiff in lieu of Dr.

Han Chang. The July 17, 1990 Order clearly and concise-

ly stated: “Plaintiff Han Chang’s motion to substitute ex-

ecutrix Poling Change [sic] as party plaintiff is granted.”

Accordingly, as of July 17, 1990, Dr. Han Chang ceased

to be a party to this case.

= os

On May 31, 1991, the district court issued a Memoran-

dum and Order concluding: “For the reasons stated here-

in and on April 24, 1991, this court finds for the defen-

dant and against the plaintiffs, and enters judgment for

the defendant.” The caption of the Memorandum and Or-

der correctly listed as plaintiffs “IVAN VON ZUCKER-

STEIN, DR. DEVABHAKTUNI RAMASWAMI, POLING

CHANG, DR. MOHAN JAIN and JOSIP VRESK.” (Em-

phasis added).

On June 27, 1991, Mark Leroy LeFevour, counsel for

Petitioner in this Court and one of the two attorneys who

represented plaintiffs at trial, filed a notice of appeal

which stated, both in its caption and in its text, that Dr.

Han Chang was appealing the district court’s judgment

in favor of Argonne. No mention was made of an appeal

by Poling Chang.

On July 12, 1991, the court of appeals entered an order

stating that “the order appealed from may not be appeal-

able as to Han Chang’”’ and that ‘‘Poling Chang has not

appealed.” The Court ordered the plaintiffs-appellants to

submit “a brief memorandum stating why this appeal

should not be dismissed for lack of jurisdiction as to Han

Chang.’’?

In response, Dr. Han Chang filed such a memorandum,*

relying principally (as Petitioner does here) on a purported

error in the Civil Docket Sheet as a reason for proceeding

2 The Court noted that a “motion for voluntary dismissal pur-

suant to Fed. R. App. P. 42(b) will satisfy this requirement.”

3 For convenience and brevity, this Brief will refer to various

legal papers being filed by Dr. Han Chang after his death, even

though such is both a physical and legal impossibility, whenever

the style of the paper fi

by Dr. Han Chang.

ed indicated that it was purportedly filed

sills

as he did, but nowhere suggesting how the court of ap-

peals could exercise jurisdiction over an appeal by a de-

ceased person not a party to the district court judgment.

Dr. Han Chang also filed a document styled “Dr. Han

Chang’s Motion to Correct or Amend the Notice of Ap-

peal to Reflect the Substitution of Poling Chang as His

Personal Representative, or Alternatively, to Substitute

Poling Chang as the Named Appellant” (the “Motion to

Amend”’).

On September 3, 1991, the court of appeals dismissed

Dr. Han Chang’s appeal, stating in relevant part:

The notice of appeal in this matter does not comply

with the requirements of Rule 3(c) of the Federal

Rules of Appellate Procedure, and therefore the court

has no jurisdiction over this matter. The caption and

the body lists ‘Han Chang,” who deceased, as plain-

tiff, and Poling Chang, his executrix, is the actual

party against whom judgment was entered by the

district court. Rule 3(c) requires “punctilious, literal

and exact compliance.”

(Pet. App. pp. 1la-2a).

The order entered by the court of appeals appeared to

dismiss the appeal not only as to Dr. Han Chang but also

as to the four plaintiffs named in the notice of apneal.

Accordingly, on September 20, 1991, these parties and Dr.

Han Chang filed a document styled “Motion for Recon-

sideration.” The four plaintiffs urged the court of appeals

that “any deficiency in Dr. Chang’s notice of appeal should

not affect the right of [these four plaintiffs] to prosecute

their appeals.” Dr. Han Chang merely repeated the argu-

ments made in his Motion to Amend.

On September 23, 1991, Respondent moved to strike the

“Motion for Reconsideration” because it was in fact a peti-

tion for rehearing which was not filed within the 14-day

silliies

time period prescribed by Rule 40 of the Federal Rules

of Appellate Procedure. On October 9, 1991, the court of

appeals “‘on its own motion” vacated its order of Septem-

ber 3, 1991 as to the four plaintiffs only and denied Dr.

Han Chang’s “Motion for Reconsideration.” (Pet. App. pp.

3a-5a).

On January 13, 1992, this Court received a petition for

writ of certiorari which identified as petitioners “Dr. Han

Chang and Poling Chang, executrix of the estate of Han

Chang.” The Clerk returned the petition because it failed

to comply with several of this Court’s rules. The Clerk

also noted, “It appears as though the caption of the peti-

tion is incorrect since Mr. Han Chang is deceased and

a deceased person cannot file a petition in this Court.”

Despite the Clerk’s instruction that corrected copies be

returned promptly, in accordance with Rule 33.7, Peti-

tioner did not mail the pending petition until 22 days after

the date of the Clerk’s letter.‘

REASONS FOR DENYING THE WRIT

I.

Poling Chang has no standing to petition this court for

a writ of certiorari because she was not a party to the

judgment in the court of appeals.

Under 28 U.S.C. § 1254(1), a judgment of the court of

appeals may be reviewed by this Court “{bly writ of cer-

tiorari granted upon the petition of any party to any civil

or criminal case. . . .” (Emphasis added). It goes without

saying that someone like Poling Chang “who is not a par-

ty toa... judgment is not entitled to appeal therefrom.”

4 For this reason alone, the petition should be dismissed.

axles

In re Leaf Tobacco Board of Trade, 222 U.S. 578, 581

(1911); see also Marino v. Ortiz, 484 U.S. 301, 304 (1988).

Poling Chang never appealed the trial court’s judgment

against her. Nor did the court of appeals enter any judg-

ment to which she was a party.

Accordingly, Poling Chang has no standing to petition

this Court for a writ of certiorari, and her petition should

be dismissed.

Il.

The petition was not filed within 90 days after the entry

of the order dismissing Dr. Han Chang’s appeal.

Poling Chang’s petition also must be dismissed because

she failed to file it within 90 days after the entry of the

court of appeals’ order dismissing Dr. Han Chang’s ap-

peal, as required by 28 U.S.C. §2101(c) and Rule 13.1 of

this Court. The order Poling Chang would have this Court

review was entered on September 3, 1991, but her peti-

tion was not received by the Clerk until January 13, 1992,

some 132 days later.

The petition for rehearing filed by Dr. Han Chang was

not sufficient to toll the filing deadline under Rule 13.4

because the petition was not “timely filed.”” Nor did the

court of appeals’ order of October 9, 1991, serve to ex-

tend the deadline for filing in this Court. When, as here,

there is no timely petition for rehearing, the entry of an

additional order by the court of appeals does not affect

the filing deadline in this Court unless the later order

changes in some material way the court of appeals’ ear-

lier decision. Federal Trade Commission v. Minneapolis-

Honeywell Regulator Co., 344 U.S. 206, 211-12 (1952). As

this Court held:

=< =

(TJhe mere fact that a judgment previously entered

has been reentered or revised in an immaterial way

does not toll the time within which review must be

sought. Only when the lower court changes matters

of substance, or resolves a genuine ambiguity, in a

judgment previously rendered should the period with-

in which an appeal must be taken or a petition for

certiorari filed begin to run anew. The test is a prac-

tical one. The question is whether the lower court,

in its second order, has disturbed or revised legal

rights and obligations which, by its prior judgment,

had been plainly and properly settled with finality.

{Footnotes omitted].

Id.

Here, the Seventh Circuit’s order of October 9, 1991,

vacated, on the court’s motion, dismissal of the appeals

of the four plaintiffs named in the notice of appeal. The

order left undisturbed the dismissal of Dr. Han Chang’s

appeal. At that point, the clock was still running for Peti-

tioner because no timely petition for rehearing had been

filed. The order of October 9, 1991, did not reset the clock

because it made no change at all, let alone a substantive

change, in the court’s earlier order.

Significantly, counsel for Poling Chang was apparently

well aware that the 90 days for filing the Certiorari Peti-

tion ran from the September 3, 1991 Seventh Circuit or-

der and not from the October 9, 1991 order. On November

5, 1991 (long after receipt by the parties of the October

9, 1991 order), counsel filed a motion with the Seventh

Circuit on behalf of the remaining four appellants entitled

“Motion For Extension of Time Within Which To File Ap-

pellant’s Brief And Appendix.” A copy of said Motion with

attachment is set forth in the Respondent’s Appendix

hereto. In the sworn affidavit of attorney Mark (Leroy)

LeFevour attached thereto, counsel stated:

-

6. The Affiant is currently engaged in other litiga-

tion and appeals which have consumed a significant

amount of the Plaintiffs-Appellants’ counsel’s time.

These other cases are as follows:

* * *

C. Poling Chang v. Argonne National Laboratory,

No. 91 2490, appeal from the United States District

Court for the Northern District of Illinois, No. 86

C 6304; petition for Certiorari due in the Supreme

Court by December 3, 1991. [Emphasis added].

December 3, 1991 is actually 91 days after the issuance

of the September 3, 1991 Seventh Circuit order, but this

one-day miscalculation notwithstanding, it is clear that

counsel was aware that the Petition filing deadline was

not tolled by the October 9, 1991 Seventh Circuit order.

Accordingly, Poling Chang’s petition for writ of certi-

orari is out of time and should be dismissed.

The court below followed the letter and the spirit of

Torres.

Contrary to Petitioner’s contention, the court of appeals

did not misread this Court’s decision in Torres v. Oakland

Scavenger Co., 487 U.S. 312 (1988), when it held that the

notice of appeal failed to comply with Rule 3(c) of the Fed-

eral Rules of Appellate Procedure (‘‘Rule 3(c)’”’). Rather,

it is Petitioner who seeks to turn Torres on its head by

suggesting that this Court there laid down a more relaxed

standard than the Seventh Circuit’s requirement of “punc-

tilious, literal and exact compliance” with Rule 3(c). (Pet.

App. p. 2a).

Rule 3(c) requires that a notice of appeal “specify the

party or parties taking the appeal.” In Torres, this Court

held that the rule means exactly what it says. If Poling

~

Chang wanted to appeal the district court’s decision, she

had only to file a notice of appeal naming herself as an

appellant within the time limits set by Rule 4 of the Fed-

eral Rules of Appellate Procedure (“Rule 4’). She did not.

Her counsel did file a notice of appeal naming Dr. Han

Chang, a non-party at that point, and, in Petitioner’s dis-

torted view of Torres, that was enough. In support of this

dubious proposition, Petitioner relies not on any legal au-

thority but on a docket notation which was allegedly con-

fusing to Petitioner’s counsel. This argument is both spe-

cious and irrelevant.

Contrary to Petitioner’s assertion, there was no con-

fusion in the district court as to the appropriate party.

Poling Chang was substituted as a party on her own mo-

tion and that substitution was clearly and specifically

noted on the civil docket sheet. Poling Chang was in-

troduced to the jury as a party, and she fully participated

in the trial. Petitioner’s counsel’s supposed confusion also

is irrelevant in light of this Court’s instruction in Torres

that Rule 3(c) be read literally. The fact that Poling Chang

became a plaintiff because her husband died does not for-

give the failure to list her on the notice of appeal.

In her petition, Poling Chang suggests that the errone-

ous naming of Dr. Han Chang in the notice of appeal was

a “mere technicality” which the court of appeals should

have ignored. But this Court in Torres expressly rejected

this view, holding:

[Rjule 3(c) was amended in 1979 to add that an ap-

peal “shall not be dismissed for informality of form

or title of the notice of appeal.” This caveat does not

aid petitioner in the instant case. The failure to name

a party in a notice of appeal is more than excusable

“informality;” it constitutes a failure of that party

to appeal.

* * %*

iia aie

. . . We believe that the mandatory nature of the

time limits contained in Rule 4 would be vitiated if

courts of appeal were permitted to exercise jurisdic-

tion over parties not named in the notice of appeal.

Permitting courts to exercise jurisdiction over un-

named parties after the time for filing a notice of ap-

peal has passed is equivalent to permitting courts to

extend the time for filing a notice of appeal. Because

the Rules do not grant courts the latter power, we

hold that the Rules likewise withhold the former.

* *

. . . The Advisory Committee’s caveat that courts

should “dispense with literal compliance in cases in

which it cannot fairly be exacted,” .. . is not to the

contrary. The examples cited by the Committee make

clear that it was referring generally to the kinds of

cases later addressed in the 1979 amendment to Rule

3c), which excuses “informality of form or title” in

a notice of appeal. [Footnote omitted]. Permitting im-

perfect but substantial compliance with a technical

requirement is not the same as waiving the require-

ment altogether as a jurisdictional threshold.

x *

. . . [I}f a litigant files papers in a fashion that is

technically at variance with the letter of a procedural

rule, a court may nonetheless find that the litigant

has complied with the rule if the litigant’s action is

the functional equivalent of what the rule requires.

. . . But although a court may construe the Rules

liberally in determining whether they have been com-

plied with, it may not waive the jurisdictional re-

quirements of Rules 3 and 4, even for “‘good cause

shown” under Rule 2, if it finds that they have not

been met.

487 U.S at 314-17 (emphasis added).

Petitioner also suggests that naming Dr. Han Chang was

some form of harmless error because his ‘‘name is suffi-

=<

cient to identify whose layoff claim is being appealed.”

(Pet. p. 6). This is precisely the approach rejected by this

Court in Torres:

[PJetitioner argues that courts of appeal should ap-

ply “harmless error” analysis to defects in a notice

of appeal. This argument misunderstands the nature

of a jurisdictional requirement: a litigant’s failure to

clear a jurisdictional hurdle can never be “‘harmless”’

or waived by a court.

487 U.S. at 317 n.3.

Dr. Han Chang’s motion to amend the notice of appeal

was filed by the wrong party in the wrong court at the

wrong time. Dr. Han Chang was not a party to the law-

suit when the motion was filed and thus had no standing

to request that the court of appeals allow amendment of

the notice of appeal. Poling Chang filed no notice of ap-

peal, so she also lacked standing to request any relief in

the court of appeals. She could have sought relief in the

district court under Appellate Rule 4(aX5), but she chose

not to do so.

The Motion to Amend also ran directly contrary to Tor-

res. Torres does not permit a party to create jurisdiction

where none exists by amending, in the appellate court,

a defective notice of appeal by substituting a party not

named in the notice of appeal. Kowaleski v. Director,

OWCP, United States Department of Labor, 879 F.2d

1173, 1175-77 (8d Cir. 1989), cert. denied, 110 S. Ct. 1114

(1990). In Kowaleski, as here, a notice of appeal was filed

on behalf of an individual who died before the case was

adjudicated below. When the court discovered this and

requested a response as to why the case should not be

dismissed, the appellant’s counsel, as here, responded by

filing a motion to substitute the executor of the original

=,

appellant’s husband’s® estate. Jd. at 1174-75. Rejecting the

motion, the court held:

The Supreme Court recently held that Appellate Rules

3 and 4... constitute a “single jurisdictional thresh-

old,’”’ such that the failure to name a party in a no-

tice of appeal or to amend the notice within the time

for filing an appeal deprives the court of appeals of

jurisdiction over the unnamed parties. Torres... ,

108 S. Ct. 2405, 2407. ...

* * *

. . . [T]he Court held that, although the rules may

be liberally construed, a court “may not waive the

jurisdictional requirements of Rules 3 and 4 if it finds

that they have not been met.” Torres, 108 S. Ct. at

ae

*x* * *

As the Court recognized in Torres, a motion for leave

to amend a notice of appeal to include unnamed par-

ties must be filed [in the district court] within the

time limits for filing a notice of appeal set forth in

Rule 4. Failure to timely file a motion to amend de-

prives the court of jurisdiction over the unnamed par-

ties. Torres, 108 S. Ct. at 2407.

Id. at 1175-77 (emphasis added).

Accordingly, since the Seventh Circuit did nothing more

than properly follow Torres, and since Torres clearly pre-

cludes the relief sought by Poling Chang, there is no rea-

son for this Court to grant the writ.

5 The appellant had died before her husband, who also died before

the case was adjudicated below. Jd. at 1174-75.

—13—

IV.

This Court need not resolve any split among the circuit

courts of appeal because no such split exists.

The Seventh Circuit has held that a party who is not

named in the notice of appeal is out of court. No other

circuit has held to the contrary. Each of the cases Peti-

tioner cites in support of her alleged split among the cir-

cuits is distinguishable on its facts from this case and from

the Seventh Circuit precedent on point. In cases analogous

to those on which Petitioner relies, the Seventh Circuit

decisions agree completely with those in other circuits.

Petitioner points first to a line of cases in which courts

of appeal allowed parties to proceed even though the no-

tices of their appeals failed to specify the parties’ capac-

ities.6 These cases are inapposite because in each case,

the party seeking to appeal (unlike Poling Chang) was,

in fact, named in the notice of appeal. Faced with an

analogous situation, the Seventh Circuit came to the same

conclusion. See Fitzpatrick v. Catholic Bishop of Chicago,

916 F.2d 1254, 1256 (7th Cir. 1990) (court held it had juris-

diction over plaintiff's appeal, even though the notice of

appeal referred to the plaintiff by a name different from

that used in the trial court, because the different names

were “alternative names for the same entity’’). The cases

cited by Petitioner might have allowed the court of ap-

peals to take jurisdiction over an appeal by Poling Chang

using some alias or business name, and they might have

allowed Poling Chang to prosecute her appeal without spe-

cifying that she was executrix of Dr. Han Chang’s estate.

These cases, however, do not (and cannot) relax Rule 3(c)’s

jurisdictional requirement that the party appealing be

named in the notice of appeal.

® Petitioner cites Brown v. Palmer, 915 F.2d 1435 (10th Cir. 1990)

and King v. Otasco, 861 F.2d 438 (5th Cir. 1988).

Petitioner next turns to a line of cases in which courts

held that notices of appeal sufficiently named the parties

appealing through use of generic terms such as “plain-

tiffs” or “defendants.”’ Here again, the Seventh Circuit

has reached the same conclusion.? As the Seventh Circuit

has held, ‘{A] notice of appeal is sufficient where the cap-

tion names all of the parties seeking to appeal and where

the text in the body sufficiently identifies the parties

through the use of a generic term such as ‘plaintiffs’ or

‘defendants.’ ”’ Hartford Casualty, supra, 913 F.2d at 423

(emphasis added). Here, the caption and the body of the

notice of appeal named Dr. Han Chang, not Poling Chang,

thus precluding the court of appeals from finding that the

notice sufficiently identified Poling Chang as an appellant.

Petitioner’s contention that the Third Circuit would de-

cide this case differently also is based on a factually dis-

tinguishable decision. Petitioner relies on Masquerade

Novelty, Inc. v. Unique Industries, Inc., 912 F.2d 663 (3d

Cir. 1990), for the proposition that a court may look at

documents other than the notice of appeal to determine

the identity of the party appealing. (Pet. p. 8). In Mas-

querade Novelty, the Third Circuit had before it a notice

of appeal which was ambiguous only because it stated,

“Walter Z. Steinman, attorney for Plaintiff in the above

captioned matter, hereby appeals. .. .” Jd. at 664. The

Court noted that two other documents filed within the

7 Compare Hartford Casualty Ins. Co. v. Borg-Warner Corp., 913

F.2d 419, 423 (7th Cir. 1990) with Association of American Medi-

cal Colleges v. Cuomo, 913 F.2d 55, 55-56 (2d Cir. 1990), National

Center for Immigrants’ Rights v. I.N.S., 892 F.2d 814, 815-17 (9th

Cir. 1989), Ford v. Nicks, F.2d 865, 867, 869-70 (6th Cir. 1989)

and Minority Employees of Tenn. Dept. of Employment Security,

Inc. v. Tennessee, 901 F.2d 1327 (6th Cir.), cert. denied, 111 S.Ct.

210 (1990).

|

30-day period of Rule 4 specified that Masquerade Novelty

was the appellant. Jd. at 664-65. Here, the notice of ap-

peal did not identify anyone as attorney for Poling Chang,

and the supposedly clarifying documents on which Peti-

tioner relies were filed more than 30 days after the dis-

trict court’s judgment.® As this Court made clear in Tor-

res, a notice of appeal must comply with the requirements

of both Rule 3 and Rule 4. Thus, documents filed outside

the 30-day period are irrelevant.

The Third Circuit’s decision in Kowaleski,? which in-

volved a situation almost identical to that presented here,

precludes any contention that the Third Circuit would

decide this case differently than the Seventh Circuit did.

The circuits are as one in their adherence to this Court’s

instruction that Rule 3(c) be read literally. Accordingly,

there is no reason for this Court to grant the writ.

CONCLUSION

For these reasons, the Petition for a Writ of Certiorari

should be denied.

Respectfully submitted,

RONALD CLAY BENNETT

Counsel of Record

DONALD J. MCNEIL

KECK, MAHIN & CATE

233 South Wacker Drive

Chicago, Illinois 60606-6589

(312) 876-3371

Counsel for Respondent

March 27, 1992

8 Petitioner informs the Court that these documents were filed

on July 8, 1991. (Pet. p. 8). :

% See discussion supra.

~~ a a _ _ a —

RESPONDENT’S APPENDIX

R. App. 1

[FILED NOVEMBER 5, 1991]

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 91-2490

IVAN VON ZUCKERSTEIN, )

DR. DEVABHAKTUNI RAMASWAMI, ) A lf

DR. MOHAN JAIN and JOSIP VRESK, ) the tated States

District Court

for the Northern

District of Illinois,

Eastern Division

)

Plaintiffs-Appellants, )

)

)

‘ No. 86 C 6304

)

)

)

V.

ARGONNE NATIONAL

LABORATORY, James B. Moran,

Judge Presiding

Defendant-Appellee.

MOTION FOR EXTENSION OF TIME

WITHIN WHICH TO FILE APPELLANT’S

BRIEF AND APPENDIX

NOW COME the Plaintiffs-Appellants, IVAN VON

ZUCKERSTEIN, DR. D. RAMASWAMI, DR. MOHAN

JAIN, and JOSIP VRESK, by and through their attor-

neys, MARK L. LE FEVOUR and JOHN L. GUBBINS,

and pursuant to Federal Rule of Appellate Procedure 26(b)

and Circuit Rule 26, move this Honorable Court for an

extension of time within which to file the Appellant’s brief

and appendix, and in support thereof, state as follows:

1. The brief and required short appendix of the Ap-

pellants is due by November 11, 1991. Based on the facts

in the attached Affidavit, neither of Plaintiffs-Appellants’

R. App. 2

counsel, with due diligence, and giving priority to the

preparation of the brief, will be able to file the brief on

or before November 11, 1991.

WHEREFORE, the Plaintiffs-Appellants respectfully re-

quest that this Court grant them an extension of time

until December 27, 1991 within which to file their brief

and appendix.

Respectfully submitted,

/s/ John L. Gubbins

John L. Gubbins

/s/ Mark L. Le Fevour

Mark L. Le Fevour

John L. Gubbins,

Of Counsel

Mark L. Le Fevour

Callahan, Fitzpatrick, LaKoma & McGlynn

1200 Jorie Boulevard

Oak Brook, IL 60521

708-990-4200

/ivan

R. App. 3

STATE OF ILLINOIS

COUNTY OF COOK-—SS.

AFFIDAVIT

MARK LE FEVOUR, on oath, hereby deposes and

states the following:

1. That he is an attorney licensed to practice law in

the State of Illinois, and is admitted to practice before

the United States District Court for the Northern District

of Illinois, the United States Court of Appeals for the

Seventh Circuit, and the United States Supreme Court.

2. That during the first three weeks of April, 1991, the

Affiant and John L. Gubbins appeared before Judge James

B. Moran in the trial of the matter currently on appeal.

3. That the Affiant and John L. Gubbins are current-

ly in the process of reviewing the record transcript and

all of the exhibits filed in the record in order to prepare

and present the Plaintiffs-Appellants’ appeal to this Court.

4. The matter under appeal involves complex litigation

in that the transcript of proceedings is approximately

2,500 pages long, the exhibits in the record on appeal are

contained in seven separate volumes and over 400 docu-

ments were marked as exhibits during the course of the

trial. The main issues on appeal concern factual issues that

were raised in the Plaintiffs’ case in chief, and which merit

review and scrutiny on appeal, since the trial court en-

tered a directed verdict on the evidence presented by the

Plaintiffs.

5. The legal issues involved in this appeal were the

subject of two recent Supreme Court cases involving the

applicability of Section 1981 to employment discrimination

cases (Patterson) and the definition of who meets the

criteria under a case of national origin discrimination.

R. App. 4

6. The Affiant is currently engaged in other litigation

and appeals which have consumed a significant amount

of the Plaintiffs-Appellants’ counsel’s time. These other

cases are as follows:

APPELLATE CASES

A. 7th Circuit—Alfred Fiorenzo et al. v. Sam Nolan

et al., No. 91 1460, appeal from the U.S. District Court

for the Northern Distrct [sic] of Illinois, No. 86 C 9261—

Reply brief of Plaintiff-Appellants to brief of Defendant-

Appellant Samuel W. Nolan; due November 8, 1991.

B. McCann et al. v. City of Chicago, et al., Nos.

91-3261 and 91-3267, appeal from the United States

District Court for the Northern District of Illinois, No.

89 C 2879; Appellant’s brief due November 12, 1991.

C. Poling Chang vs. Argonne National Laboratory,

No. 91 2490, appeal from the United States District Court

for the Northern District of Illinois, No. 86 C 6304; peti-

tion for Certiorari due in the Supreme Court by

December 3, 1991.

D. Illinois Appellate: Singh vs. Illinois Department of

Professional Regulation, Appellate No. 91-1019, appeal

from the Circuit Court of Cook County, No. 90 CH 10519.

UPCOMING JURY TRIALS

Federal—John Auriemma et al. vs. Fred Rice, No. 84

C 1224, pending before Judge Holderman. (The trial is

set for January 13, 1992; pretrial order due by November

25, 1991, expert’s depositions and motions in liminie [sic]

are still outstanding and to be drafted on or before No-

vember 22, 1991.)

R. App. 5

State Court—Bowman et al. vs. Bank of Hickory Hills,

et al., 87 L 21456 in the Circuit Court of Cook County,

Illinois. Anticipated jury trial November 20, 1991.

7. The Affiant has made diligent efforts to read and

summarize the record on appeal. At this time he has read

and summarized approximately 50% of the trial transcript

and a majority of the exhibits in the appellate record. As

this appeal requires a substantial amount of factual in-

put, the careful summarizing and recitation of the trial

record is paramount to the Plaintiffs-Appellants’ brief.

Plaintiffs’ counsel has recently retained a law clerk to

assist him in the review and summary of the record.

8. The matters noted above take priority over the ap-

peal in this case in that the Fiorenzo reply is due No-

vember 8, 1991; the McCann brief is due November 12,

1991, (it involves an equal protection claim against the

City of Chicago); the Auriemma case has been pending

for eight years, has been before this Court on three sepa-

rate occasions, and before the United States Supreme

Court. The deadlines set by Judge Holderman in Auriem-

ma are firm and he expects all of the parties to comply

with them. The Bowman trial date has been set in the

Circuit Court of Cook County for several months and it

is anticipated at this time that the Affiant will participate

in that jury.

9. Similarly, Affiant’s co-counsel is currently engaged

in the following litigation:

A. Preparing a supplemental brief to the brief of the

amicus curae [sic] in Billish et al. vs. City of Chicago,

et al., No. 90-1650 (7th Circuit) appeal from the United

States District Court for the Northern District of Illinois,

No. 87 C 8731.

R. App. 6

B. Currently preparing an Appellant’s brief in City of

Chicago et al. vs. Matchmaker Realty Center, Inc., cur-

rently pending before the 7th Circuit.

C. Mr. Gubbins is also co-counsel in the Auriemma vs.

Rice and Chang vs. Argonne Laboratory, cases noted

above.

D. Mr. Gubbins is currently preparing an appeal on

Jacobs vs. Mundelein College currently pending in the II-

linois Appellate Court.

10. Extreme hardship will result to counsel’s ability to

represent both the McCann plaintiffs and the Von

Zuckerstein plaintiffs, if an extension is not granted. The

hardship would be that neither party would get the full

benefit of counsel’s undivided attention to their appeals

before this Court. It is a similar situation for Mr. Gub-

bins in the cases of Billish vs. Chicago and Chicago vs.

Matchmaker that if an extension is not granted, these

clients will not receive the representation to which they

are entitled.

11. The Affiant and Mr. Gubbins are ready, willing and

able to prosecute the Von Zuckerstein appeal. By coin-

cidence, several deadlines conflict with the dealine [sic] set

by the Court for the filing of the Von Zuckerstein ap-

peal. If granted leave until December 27, 1991, the Plain-

tiffs-Appellants will have their brief and Appendix on file

either by that date or prior to that date.

FURTHER, AFFIANT SAYETH NOT.

/s/ Mark Le Fevour

Mark Le Fevour

R. App. 7

SUBSCRIBED AND SWORN to

before me this 4th day

of November, 1991.

/s/ Janet A. Bowler

Notary Public

[Seal]

Mark L. Le Fevour

Callahan, Fitzpatrick, LaKoma & McGlynn

1200 Jorie Boulevard

Oak Brook, IL 60521

708-990-4200

CERTIFICATE OF SE RVICE

The undersigned, an atturney, hereby certifies that he

caused a copy of Motion For Extension of Time Within

Which To File Plaintiff-Appellants’ Brief And Appendix

to be served upon counsel for Defendant-Appellee by de-

positing same in the U.S. Mail at 1200 Jorie Boulevard,

Oak Brook, Illinois, first class postage prepaid, before the

hour of 5:00 p.m. on November 4, 1991, addressed as

follows:

R. Clay Bennett

Keck, Mahin & Cate

8300 Sears Tower

233 South Wacker Drive

Chicago, IL 60606-6589

/s/ Mark Le Fevour

Mark Le Fevour