Opposition Brief — Jones v. Petty-Ray Geophysical Geosource

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Supreme Court, U.S,

FILED

No. | JUN 10 1992

OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1991

’

BRENDA JONES, Individually and

As Administratrix of the

Estate of EVAN A.M. JONES, Deceased,

Petitioner,

Vs.

PETTY-RAY GEOPHYSICAL, DIVISION OF

GEOSOURCE, INC., GEOSOURCE, INC., AND

MARATHON PETROLEUM SUDAN, LTD.,

Respondents.

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

BRIEF FOR MARATHON PETROLEUM

SUDAN, LTD. IN OPPOSITION

Lisa H. PENNINGTON

Counsel of Record

Jon Davip Ivey

BAKER & HOosTETLER

1000 Louisiana, Suite 2000

Houston, Texas 77002

(713) 751-1600

June 10, 1992

COCKLE LAW BRIEF PRINTING CO.,, oo 225-4964

OR CALL COLLECT (402) 342-

QUESTION PRESENTED

1. Whether the court of appeals properly dismissed Peti-

tioner’s appeal for want of prosecution for failure to

file her brief in a timely manner.

TABLE OF CONTENTS

Page

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STATEMENT OF THE CASE.................0000- 2

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TABLE OF AUTHORITIES

Page

CAsEs:

Barber v. American Security Bank, 841 F.2d 1159

eke k aude kis seks sce kdeeessses 7

In Re: Beverly Manufacturing Corp., 778 F. 2d 666

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Frazier v. Heebe, 482 U.S. 641, 107 S. Ct. 2607, 96

ER SG a 5

Kushner v. Winterthur Swiss Insurance Co., 620 F.2d

eh accu ud iwaedetceeses 6

Marcaida v. Rascoe, 569 F.2d 828 (5th Cir. 1978)....... 6

Matute v. Procoast Navigation, Ltd., 928 F.2d 627

eA hs ka ce pc hpeneedeaesrdusess 6

Stotler & Co. v. Able, 837 F.2d 1425 (7th Cir. 1988) ..... 7

STATUTES AND RULEs:

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No.

‘

In The

Supreme Court of the United States

October Term, 1991

BRENDA JONES, Individually and

As Administratrix of the

Estate of EVAN A.M. JONES, Deceased,

Petitioner,

VS.

PETTY-RAY GEOPHYSICAL, DIVISION OF

GEOSOURCE, INC., GEOSOURCE, INC., AND

MARATHON PETROLEUM SUDAN, LTD.,

Respondents.

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

BRIEF FOR MARATHON PETROLEUM

SUDAN, LTD. IN OPPOSITION

OPINIONS BELOW

The Order dismissing appeal is reproduced at Pet.

App. la.

JURISDICTION

The Order dismissing Petitioner’s appeal in the

United States Court of Appeals for the Fifth Circuit was

entered November 27, 1991. Pet. App. la. The Order

denying Motion to Reinstate Appeal was entered January

8, 1992. Pet. App. 5a. Petition for Panel Rehearing was

denied on February 6, 1992. Pet. App. 6a. The jurisdiction

of this Court is invoked under 28 U.S.C. 1254(1).

RULE INVOLVED

Local Rule 42.3.2 of the United States Court of

Appeals for the Fifth Circuit reads as follows:

42.3 Dismissal for Failure to Prosecute

42.3.2 In all other appeals when appellant fails

to order the transcript or fails to file a brief or

otherwise fails to comply with the rules of the

court, the clerk shall enter an order dismissing

the appeal for want of prosecution.

5th Cir. R. 42.3.2.

The rule cited by Petitioner, 5th Cir. R. 42.3.1, at Pet.

2-3, concerns direct criminal appeals, habeas cases, and

cases filed pursuant to 28 U.S.C. § 2255. It does not

concern suits for civil damages such as the one at issue.

STATEMENT OF THE CASE

This is an appeal from a dismissal of Petitioner

Brenda Jones’ (“Jones” or “Petitioner”) appeal for failure

to file her brief pursuant to Fed. R. App. P. 31 and 5th Cir.

R. 42.3.2. Rule 42.3.2. instructs the clerk to enter an order

dismissing an appeal for want of prosecution when a

party fails to file his brief within the time allowed. Peti-

tioner argues that the court abused its discretion in dis-

missing her appeal because one of her two attorneys of

record did not receive notice of the briefing deadlines.

The record reveals that Jones’ counsel of record,

James Scherr (“Scherr”), received actual notice of the due

date for Appellant’s brief. Pet. App. 10a-1la. That notice

also included the Fifth Circuit’s policy regarding exten-

sions of time for filing briefs and specified that Rule

42.3.2 allows the clerk to dismiss appeals without notice

if the appellant’s brief is not filed timely. Through negli-

gence or indifference, Jones’ counsel never filed a brief,

and the court of appeals correctly dismissed the appeal.

The record reveals that Scherr, rather than Roberts,

acted as Jones’ appellate counsel. Scherr filed a Notice of

Appeal for Jones on April 30, 1991. Scherr later sent a

letter dated May 10, 1991, to the clerk of the Fifth Circuit

transmitting a certified copy of the Notice of Appeal. On

May 14, 1991, Scherr completed a transcript order form to

the clerk of the Fifth Circuit and to the clerk of the

Southern District of Texas. Also, on May 14, 1991, Scherr

mailed a letter to Ms. Janice Helstrom and Ms. Mary

Hagbee, court reporters for the district court, requesting

preparation of a transcript and a statement of facts. These

two individuals received additional letters from Scherr

concerning the transcript on May 23, 1991. Letters from

Scherr dated June 4, 1991, enclosed a copy of the original

Transcript Order to the clerk of the Fifth Circuit. The

Appellant filed her Praecipe on June 11, 1991, by Scherr.

Although Jones asserts that Scherr acted only as her

“trial” counsel, the record reveals otherwise.

On October 1, 1991, the clerk of the Fifth Circuit sent

a notice to Scherr, with copies to counsel for appellees,

notifying the parties of the briefing schedule. Pet. App.

10a-1la. The notice stated that Appellant’s brief and

record excerpts were due forty days from October 1. The

clerk also specified that he could not send the record on

appeal until Scherr filed an Appearance of Counsel form.

In addition, the clerk provided notice to Scherr that Rule

42.3.2 allows the clerk to dismiss appeals without notice

if the Appellant’s brief is not filed timely. The notice also

stated that failure to have access to the record would not

be considered grounds for extending the time to file

Appellant’s brief.

An Appearance of Counsel form designating Mr.

Charles Louis Roberts and Scherr as counsel for Appellant

was filed on October 4, 1991. Roberts’ telephone number

and Social Security number were omitted from the form.

Scherr’s telephone number and Social Security number

were provided. Jones does not allege that Scherr failed to

receive the October 1, 1991, briefing notice or that he was

unaware of the briefing schedule. The only allegation of

lack of notice concerns Scherr’s co-counsel, Roberts.

By way of proving that Roberts was her “appellate”

counsel, Jones asserts that Roberts sent a letter to the

clerk requesting the record. There is no evidence of this

request in the court of appeals’ records. Even if there

were, Roberts had not entered an appearance prior to the

notice of the briefing schedule sent by the clerk on Octo-

ber 1, 1991, and the clerk was under no obligation to send

the record to anyone who had failed to file an Appear-

ance of Counsel. —

After October 4, 1991, neither Scherr nor Roberts ever

communicated with the court. Although Jones alleges

Roberts was waiting for the record, there is no record of

any effort by Jones to determine why the record had not

been mailed. This indifference on Roberts’ part resulted

in the failure to file a brief on November 11, 1991. Fur-

ther, the October 1, 1991, briefing notice from the clerk of

the Fifth Circuit to Jones specified (in bold type) that

failure to have access to the record will not be considered

grounds for extending the time to file the Appellant’s

brief.

On November 27, 1991, the clerk of the United States

Court of Appeals for the Fifth Circuit entered a dismissal

of the appeal for want of prosecution pursuant to 5th Cir.

R. 42.3.2. A Motion to Reinstate, a Petition for Rehearing

En Banc and a Motion for Rehearing were all denied. Pet.

App. 5a-9a.

ARGUMENT

1. Marathon acknowledges that this Court has clear

supervisory authority and responsibility over the inferior

federal courts and may decide the propriety of the local

rules of the courts of appeal. Frazier v. Heebe, 482 U.S. 641,

107 S. Ct. 2607, 96 L.Ed. 557 (1987). This case does not

warrant the Court’s granting certiorari because Fifth Cir-

cuit rule 42.3.2 is justified by jurisprudential consider-

ations of dismissing an appeal where the appellate rules

have not been observed.

The principal of consistent and mutual respect for the

supremacy of rules in our system of law counsels for

ae ail

sanctions against a participant who fails to abide by those

rules without good cause. In Kushner v. Winterthur Swiss

Insurance Co., 620 F.2d 404 (3rd Cir. 1980), the court

stated:

Each appellant in this court must of necessity

allege that the district court violated some rule

of substantive or procedural law .. . the litigant,

then, who charges that the rules were not fol-

lowed in the district court should himself follow

the rules when he applies for relief in this court.

Sauce for the goose is sauce for the gander.

Winterthur, 620 F.2d at 407.

Clearly, jurisprudential considerations support the

court of appeals’ use of its local rules to sanction litigants

who fail to observe its rules.

2. Petitioner claims that there is a conflict among

the circuits concerning dismissal of appeals for failure to -

comply with federal and local rules. Pet. 9-12. This is not

true. Rule 31 of the Federal Rules of Appellate Procedure

provides that the appellant shall file a brief within forty

days after the date that the record is filed. Failure to file a

brief on time is not a jurisdictional bar to hearing the

appeal. Marcaida v. Rascoe, 569 F.2d 828 (Sth Cir. 1978).

However, failure to file a brief on time may provide the

cause for summary disposition of the appeal in the court's

discretion.

In addition, the Fifth Circuit’s rules provide sanc-

tions for a party’s failure to adhere to the Federal Rules of

Appellate Procedure. Other circuits provide similar local

rules. See, 3rd Cir. R. 21(4), Matute v. Procoast Navigation,

Ltd., 928 F.2d 627 (3rd Cir. 1991). All circuits agree that

the decision to dismiss an appeal is discretionary. Stotler

& Co. v. Able, 837 F.2d 1425 (7th Cir. 1988); Barber v.

American Security Bank, 841 F.2d 1159 (D.C. Cir. 1988); In

Re: Beverly Manufacturing Corp., 778 F.2d 666 (11th Cir.

1985). Such circuit court rules are designed to enable

appellate courts to process effectively and judiciously an

ever-increasing workload. As the decisions in the more

recent cases indicate, the number of appeals filed per

judge has swelled dramatically. Thus, the pragmatic con-

siderations that motivated the court of appeals’ dismissal

of the appeal are even more compelling in 1992. The court

of appeals efforts to provide speedy and just dispositions

of appeals for every litigant are hindered by a party that

fails to abide by the court’s rules for the timely filing of

briefs.

Although dismissal of an appeal may not be appro-

priate in every case of an untimely filing, there was no

showing in this case of “extraordinary and compelling

circumstances” that could have given the court cause to

excuse the violation. Barber v. American Security Bank, 841

F.2d 1159, 1160 (D.C. Cir. 1988). Here, Petitioner’s counsel

of record received notice of the briefing deadline and

offered no explanation for his failure to comply. The

excuse that Petitioner’s “appellate” counsel (Roberts) had

not received the October 1 notice to Scherr is disin-

genuous because Scherr and Roberts were co-counsel,

and Roberts did not become a designated co-counsel until

after the briefing notice had been delivered to Scherr.

Even under Petitioner’s characterization of the record,

Scherr was counsel of record during the entire period of

the case and was therefore obligated to file his client’s

brief in a timely manner. No excuse is offered for Scherr’s

failure.

The notice of the brief due date was delivered to

Jones’ counsel, Scherr, in the October 1, 1991, briefing

notice. The clerk of the court of appeals fulfilled his

obligation to inform counsel of record (and the counsel

who had filed the Notice of Appeal) that the brief was

due on November 11, 1991. The clerk also used the brief-

ing notice to inform Jones that failure to comply with the

briefing schedule was cause for dismissal under Rule

42.3.2. Jones offered no explanation to the Fifth Circuit

for her counsel’s failure to comply with the court’s rules.

The court of appeals correctly dismissed Petitioner’s

appeal for Petitioner’s failure to file her brief on time, or

to provide any credible excuse for her failure.

CONCLUSION

The Petition for Writ of ,Certiorari should be denied.

Respectfully submitted,