Opposition Brief — O'Quinn v. Wedco Technology, Inc.

No. 92-310

In The an

Supreme Court of the United States

October Term, 1992

¢

SHIRLEY O’QUINN,

Petitioner,

WEDCO TECHNOLOGY, INC.,

Respondent.

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

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BRIEF IN OPPOSITION

S

James E. GOLDFARB

GREENGARD SENTER GOLDFARB &

Rice

400 S. Colorado Boulevard

Suite 700

Denver, Colorado 80222

Telephone: (303) 320-0509

COCKLE LAW BRIEF PRINTING CO., (800) 2256964

OR CALL COLLECT (402) 342-2831

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TABLE OF CONTENTS

Page

Sk tee: A eae ae eae hee ]

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

SUMMARY OF REASONS WHY THE PETITION

SHOULD BE DENIED........... A ee ee ee 6

A. THERE IS NO CONFLICT OF DECISIONS... 6

B. THIS CASE DOES NOT PRESENT AN IMPOR-

TANT FEDERAL QUESTION ee ne

( THE DISTRICT COURT CORRECTLY)

APPLIED Fed. R. Civ. P. 15(c) IN DISMISSING

PETITIONER’S CLAIMS ee eee 7

ARGUMENT a 8

CONCLUSION 14

TABLE OF AUTHORITIES

Page

CASES

American Bankers Ins. Co. of Florida. v. Colorado

Flying Academy, Inc., 93 F.R.D. 135 (D. Colo.

1962). 0... sca dan es bee eee 12

Anderson v. Allstate Insurance Co., 630 F.2d 677 (9th

Cir. 1960). . 6.055 cca eee ene ee ee 12

Brown v. E. W. Bliss Co., 818 F.2d 1405 (8th Cir.

TOOT) oo sown wk 8 he ee 12

Burlington Northern R. Co. v. Woods, 480 U.S. 1

Cb 22.) errr rc Si ae eo 8

Dillingham v. Greeley Publishing Company, 701 P.2d

27 (Colo. 1985)... 5.5 ens see5 ee eee eee 14

Ex parte Fisk, 113 US. 713 (4083) 2.95 ee 1]

Freeman v. Bee Machine Co., 319 U.S. 448 (1943)...... 10

Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423

(1974)... osc sec ce bey = oe ee ee ee 10

Hanna v. Plumer, 380 U.S. 460 (1964) . 7, 8, 9, 10, 11, 15 |

Headrick v. Atchison T. & S.F. Ry. Co., 182 F.2d 305

(10th Cir. 1950). ..<. <s<cys050eeee eee eee 12

In re Asbestos School Litigation, 768 F. Supp. 146

(E.D. Pa. 1991)... ~. <<a. <xos eee 11

Nealy v. Transportacion Maritima Mexicana S.A., 662

F.2d 1275 (9th Cir. 1960)... ..02000sses eee ees 13

Schiavone v. Fortune, 477 U.S. 21 (1986).. 4, 6, 8, 12, 13, 14

Simmons v. South Central Sky Workers Ins., 936 F.2d

268, (6th Cir. 1991) ......:.. 0:00 cee 1]

ill

TABLE OF AUTHORITIES - Continued

Page

Smith v. Navistar International Transportation Corp.,

ve wee. BOO CUP, EG. TPO Cas cee deen cens 11

Stewart Organization, Inc. v. Ricoh Corp., 478 U.S. 22

ae EN ne eae te ae ae ee a"

Walker v. Armco Steel Corp., 446 U.S. 740 (1980)....... Y

STATUTES AND RULES

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No. 92-310

— é —

In The

Supreme Court of the United States

October Term, 1992

*

SHIRLEY O’QUINN,

Petitioner,

WEDCO TECHNOLOGY, INC.,

Respondent.

a —

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

*

BRIEF IN OPPOSITIO!

7 -

Respondent, Wedco Technology, Inc.,! respectfully

requests that this Court deny a Writ of Certiorari to

review the judgment and opinion of the United States

Court of Appeals For the Tenth Circuit.

sie 4

JURISDICTION

is Court is sought by Petitioner

94(1) (Supp. 1992). S. Ct. R. 13.1

Jurisdiction of th

under 28 U.S.C. § 12

1! Pursuant to S. Ct. R. 29.1, Wedco Technology, Inc., states it

has no parent companies or subsidiaries, other than

wholly-owned subsidiaries.

provides that petition for a writ of certiorari to review a

judgment in any case shall be deemed timely when filed

within ninety (90) days after entry of the judgment. Peti-

tioner’s claims were dismissed by the district court on

December 21, 1990. A motion to alter or amend judgment

was filed December 31, 1990, and denied April 1, 1991.

Petitioner filed a notice of appeal on April 29, 1992. On

February 11, 1992, the United States Court of Appeals

affirmed the district court’s judgment in favor of defen-

dant. On February 24, 1992, a Petition For Rehearing and

Suggestion For en banc Consideration was filed with the

Tenth Circuit which was denied on May 11, 1992.

Federal Rules of Appellate Procedure for the United

States Court of Appeals, Rule 35(c) provides that a sug-

gestion for rehearing en banc does not affect the finality

of the judgment of the Court of Appeals or stay the

issuance of a mandate. Further, S. Ct. R. 13.4 provides

that a suggestion for rehearing en banc, pursuant to Rule

35(b), Fed. R. App. P. 35(b), is not a petition for rehearing

within the meaning of S. Ct. R. 13.4. This petition was not

filed until August 7, 1992, and was docketed on August

17, 1992. Therefore, this petition is not timely pursuant to

S. Ct. R. 13.

STATEMENT OF THE CASE

On May 18, 1985, Shirley O’Quinn, the Petitioner,

injured ier hand while operating two machines at the

place of her employment, Texas Instruments in Colorado

Springs, Colorado. She first reported her injuries and any

alleged cause of her injuries to her employer on May 18,

| |

1985. Petitioner alleges she was operating two machines,

a machine lathe and bar feed device. The lathe was

allegedly manufactured by Wadell Equipment Company,

a defunct corporation alleged to be a predecessor in inter-

est of Wedco. The bar feed was manufactured by Pow-

erhold, Inc., an unrelated Connecticut corporation.

Petitioner was injured while operating the Powerhold bar

feed, which was not designed, constructed, nor assem-

bled by Wadell Equipment Company.

It is undisputed that the applicable statute of limita-

tions expired on May 18, 1988. Petitioner commenced this

action, 23 days before the limitations period ran, by filing

a Complaint on April 25, 1988 naming “Doe Manufactur-

ing Company, a/k/a Wadell Company,” asserting claims

for breach of warranty, strict liability, and negligence. No

claim was asserted against Powerhold by Petitioner.

On May 16, 1988, an Amended Complaint was filed,

naming, Wadell Equipment Manufacturing, Inc., as the

only Defendant. Not until September 23, 1988, over four

months after the expiration of the limitations period, did

Petitioner file and serve a Second Amended Complaint

incorrectly naming Wadell Machine & Tool, Inc. (Wadell

Machine) as successor in interest to Wadell Equipment

Company.? The Complaint was served upon Laszlo

Rendas, as registered agent for Wadell Machine. On Sep-

tember 23, 1988, through Laszlo Rendas, Wedco received

2 Inconsistent with Petitioner’s implied difficulty in locat-

ing “Wadell,” Wadell Machine & Tool, Inc., which purchased

certain assets from Wadell Equipment Company, was incorpo-

rated and registered as doing business in New Jersey since

October, 1987.

its first notice of Plaintiff’s claims. Wadell Machine filed a

timely answer denying it was a successor to Wadell

Equipment Company. A Third Amended Complaint was

filed in May, 1989, in which Petitioner’s Workers’ Com-

pensation carrier, Fidelity & Casualty Company, joined as

a co-plaintiff. The El Paso County, Colorado District

Court dismissed Wadell Machine on April 11, 1990, since

it was not the manufacturer, nor was it the successor in

interest to the manufacturer of the machine lathe. On

June 4, 1990, over 23 months after Petitioner was on

notice that Wadell Machine was not the manufacturer of

the machine lathe, and over two years after the statute of

limitations had expired, a Fourth Amended Complaint

was filed naming Wedco as the sole defendant.

The action was properly removed and the United

States District Court For The District of Colorado

accepted jurisdiction based on diversity. Applying this

Court’s decision in Schiavone v. Fortune, 477 U.S. 21

(1986), the District Court found: “[It] is uncontested that

if the federal rules apply, under Schiavone, Wedco was not

timely informed, the Fourth Amended Complaint cannot

relate back, and the action is time barred.” (Petitioner’s

Appendix 7a.)

The District Court indicated that even accepting Peti-

tioner’s position, applying Colorado Rule of Civil Pro-

cedure 15(c): “I conclude that if the Colorado Supreme

Court considered the question today, the court again

would follow the applicable federal rule. That rule now is

expressed by Schiavone, not Ingram.” (Petitioner’s Appen-

dix 8a.)

The District Court dismissed Petitioner’s claims,

applying Fed. R. Civ. P. 15(c). The District Court held

Petitioner’s Fourth Amended Complaint did not relate

back and the claims were therefore barred by the statute

of limitations; and even applying C.R.C.P. 15(c), as sug-

gested by Petitioner, the same result is reac hed.

With respect to Petitioners argument that C.R.C.P.

Rule 15(c) rather than the Federal Rule applies to a

removal action, the District Court specifically pointed

out: “Most courts that have considered this question,

including this court, have concluded that this is a ques-

tion of federal procedure.” (Petitioners Appendix 9a.)

Significantly, the District Court foreshadowed the

)

subsequent 1991 amendment to Fed. R. Civ P. 15(c) in

holding:

Without deciding how long a reasonable time

for service of process is under Dillingham [con-

struing C.R.C.P. 15(c) as including a reasonable

time for service] | conclude that more than four

months is beyond a reasonable time. Therefore,

applying Dillingham, the Fourth Amended Com-

plaint cannot relate back to the previous com-

plaints.

(Petitioner’s Appendix 9a.)

Plaintiff’s motion to alter or amend the judgment of

the District Court was denied on April 1, 1991. (Peti-

tioner’s Appendix 10a.) Petitioner filed a Notice of

Appeal to the United States Court of Appeals For The

Tenth Circuit on April 29, 1991. A three-member panel of

the Tenth Circuit affirmed the District Court’s judgment

on February 11, 1992. Petitioner’s suggestion for rehear-

ing en banc was denied on May 11, 1992.

+

SUMMARY OF REASONS WHY THE PETITION

SHOULD BE DENIED

A. THERE IS NO CONFLICT OF DECISIONS.

There is currently no conflict between this case and

any decision of this Court or any Court of Appeals.

Petitioner contends certiorari should be granted to “clear

up conflicting decisions between the Colorado Supreme

Court, the Tenth Circuit, and this Court.” Petitioner’s

contention is unfounded. The Colorado Supreme Court

decision upon which Petitioner relies is not in conflict

with the Tenth Circuit decision since the state decision

predates Schiavone and applies a state rule of civil pro-

cedure, whereas the Tenth Circuit decision was based on

application of a federal rule of civil procedure.

B. THIS CASE DOES NOT PRESENT AN IMPOR-

TANT FEDERAL QUESTION.

Petitioner’s assertion that this case presents a consti-

tutional question of importance is erroneous. The Petition

centers around application and interpretation of a state

rule of civil procedure. Further, this Court has recently

considered the question presented concerning relation

back of amended proceedings pursuant to Fed. R. Civ. P.

15(c). See Schiavone v. Fortune, 471 U.S. 21 (1986). Whether

construed under Fed. R. Civ. P. 15(c) in effect at the time

of the district court’s judgment, or under amended Fed.

R. Civ. P. 15(c) which incorporates Petitioner’s concerns,

Petitioner’s claims were properly dismissed.

C. THE DISTRICT COURT CORRECTLY APPLIED

Fed. R. Civ. P. 15(c) IN DISMISSING PETI-

TIONER’S CLAIMS.

The petition asks this Court to find that Colorado

Rule of Civil Procedure 15(c) applies to a diversity case,

and that the Colorado Supreme Court would diverge

from this Court’s interpretation of the identically worded

federal rule and subsequent amendments to the Federal

Rule. Contrary to Petitioner’s contentions, the district

court correctly applied Fed. R. Civ. P. 15(c) as required by

Hanna v. Plumer, 380 U.S. 460 (1964), and as interpreted

by this Court in Schiavone v. Fortune, 477 U.S. 21 (1986).

Fed. R. Civ. P. 15(c) covers the situation presented and

must be applied unless the Rule exceeds the terms of the

Enabling Act or Constitutional restrictions. In any event,

Petitioner’s concerns have been addressed by new Fed. R.

Civ. P. 15(c), which now provides that the period in which

a defendant must have notice of the claim for it to relate

back includes the period for service provided by Rule 4,

120 days. Even applying amended Fed. R. Civ. P. 15(c),

Petitioner’s claims were properly dismissed. Lastly, as the

District Court indicated, even applying state Rule 15(c),

in light of Schiavone, Petitioner’s claims were properly

dismissed.

ARGUMENT

Petitioner asks this Court to find that, despite a fed-

eral rule which clearly encompasses this issue, the Colo-

rado Rules of Civil Procedure should govern.

However, this Court has long held that where there is

a conflict between a federal rule of civil procedure and a

corresponding state rule on procedural matters, the fed-

eral rule applies. Hanna v. Plumer, 380 U.S. 460 (1964).

When a situation is covered by one of the Fed-

eral Rules, .. . the court has been instructed to

apply the Federal Rule, and can refuse to do so

only if the Advisory Committee, this Court, and

Congress erred in their prima facie judgment

that the Rule in question transgresses neither

the Enabling Act nor constitutional restrictions.

Hanna v. Plumer, 380 U.S. 460, at 471 (1964). This Court

confirmed adherence to this analysis in Burlington North-

ern R. Co. v. Woods, 480 U.S. 1 (1987). It is suggested that

the constitutional authority of Congress to enact Fed. R.

Civ. P. 15(c) is not seriously questioned. Therefore, based

upon Hanna, the validity of Fed. R. Civ. P. 15(c) under the

Rules Enabling Act, 28 U.S.C. § 2072, is presumed and the

federal rules prevail over contrary state practice.

In Schiavone v. Fortune, 477 U.S. 21 (1986), this Court

considered the very issue presented in this case. Under

Schiavone, the newly added defendant must have notice

of the claims within the limitations period before an

amended complaint adding him as a defendant will relate

back. Applying Schiavone, the district court held: “Under

Schiavone, Wedco was not timely informed, the Fourth

Amended Complaint cannot relate back, and the action is

time barred.” (Petitioner’s Appendix 7a).

Petitioner’s reliance upon Walker v. Armco Steel Corp.,

446 U.S. 740 (1980), is misplaced. Walker involved a dis-

pute over the application of the appropriate statute of

limitations to a personal injury suit. Walker timely filed

his complaint in the Oklahoma District Court, but did not

serve Armco until four months later. The Oklahoma stat-

ute of limitations required service within 60 days of fil-

ing. Walker argued that under Fed. R. Civ. P. 3, his action

was commenced at filing, tolling the limitations period.

This Court reversed, finding that both Fed. R. Civ. P. 3

and the Oklahoma statute could exist side-by-side with-

out conflict, and, therefore, the Hanna analysis did not

apply. Walker v. Armco Steel Corp., 446 U.S. at 752. This

Court has recast the Hanna analysis so as not to require

even a direct conflict, but to require application of the

procedural rule whenever a federal rule “covers the point

in dispute.” Stewart Organization, Inc. v. Ricoh Corp., 487

U.S. 22 (1988). Moreover, the Walker decision points out

that Rule 3, rather than the state statute concerning ser-

vice, governs in a diversity action. The federal rules

provide various timing requirements, though not replac-

ing the requirements of the state limitations period.

Walker v. Armco, 446 U.S. at 751, 752.

Here, the Hanna decision is determinative of the

question presented.

Thus, a court, in measuring a federal rule

against the standards contained in the Enabling

Act and the Constitution, need not blind itself to

the degree to which the rule makes the character

and the result of the federal litigation stray from

10

the course it would follow in state courts. ... To

hold that a Federal Rule of Civil Procedure must

cease to function whenever it alters the mode of

enforcing state-created rights would be to dis-

embowel either the Constitution’s grant of

power over federal procedure or Congress’

attempt to exercise that power in the Enabling

Act.

Hanna v. Plumer, 380 U.S. at 473. The District Court prop-

erly dismissed Petitioner’s claims in applying Fed. R. Civ.

P. 15(c).

Further, Fed. R. Civ. P. 81(c) relied upon by Petitioner

does not support her position. Rule 81(c) requires appli-

cation of the Federal Rules of Civil Procedure in a

removal case, rather than state rules.* Although Peti-

tioner correctly points out that the federal rules do not

apply prior to removal, this Court has previously

acknowledged the propriety of applying federal rules

following removal, despite differences in state court prac-

tice.

The petitioner having removed his case into the

Circuit Court has a right to have it further pro-

gress governed by the law of the latter Court,

and not by that of the court from which it was

removed; and if one of the advantages of this

removal was an escape from this examination,

he has a right to that benefit if his case was

rightfully removed.

3 See 28 U.S.C. § 81 (Supp. 1992); Freeman v. Bee Machine Co.,

319 U.S. 448, 452 (1943) (holding that authority to permit

amendments to complaint is governed by federal not state law);

Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423 (1974).

11

Ex parte Fisk, 113 U.S. 713 (1885). Obviously, when a

Federal Court applies the federal rules to regulate the

form and conduct of diversity proceedings, a system is

employed which may differ from state proceedings.

Because the procedures differ, so may the outcome. How-

ever, outcome determination has never been an Enabling

Act gauge. Hanna v. Plumer, 380 U.S. 460, 473 (1965). As

noted by the district court dismissing Petitioner’s claims,

the widely held and correct view is that the issue of

relation back is governed by Fed. R. Civ. P. 15(c). (Peti-

tioners Appendix 9a.) See In re Asbestos School Litigation,

768 F. Supp. 146 (E.D. Pa. 1991). Other federal courts have

taken the same approach.

Smith v. Navistar International Transportation Corp., 737

F. Supp. 1446 (D. Md. 1988), involved a diversity action

which had been removed from a Maryland state court.

The plaintiff brought product liability claims against

Navistar and Bostrum Seating more than three years after

the incident occurred. The defendants had no notice of

such claim until served two days after the limitations

period had expired. Bostrum Seating, like Wadell in the

case at bar, was not incorporated at the time of manufac-

ture, and like Wadell was dismissed since it could not be

held liable as a successor corporation. Smith filed an

amended complaint to add Bostrum, a predecessor to

Bostrum Seating, eighteen months after the limitations

period had expired. The Court found such facts squarely

within the Schiavone decision, and applying Fed. R. Civ. P.

15(c), held the claims were time barred.

Similarly, in Simmons v. South Central Sky Workers Ins.,

936 F.2d 268 (6th Cir. 1991), the Sixth Circuit considered

whether plaintiff's amended complaint in a diversity

12

action was time barred pursuant to Federal Rule 15(c), or

was timely pursuant to Kentucky state law. The court

held that the relation back issue is a question of federal

law, citing American Bankers Ins. Co. of Florida. v. Colorado

Flying Academy, Inc., 93 F.R.D. 135 (D. Colo. 1982). The

Eighth Circuit has held similarly, finding that regardless

of whether Fed. R. Civ. P. 15(c) conflicts with the state

rule, the federal rule applies. Brown v. E. W. Bliss Co., 818

F.2d 1405 (8th Cir. 1987).

Petitioner fails to address the authority presented

above. Instead, Petitioner points to unrelated authority,

most of which predate Schiavone. The decision in Headrick

v. Atchison T. & S.F. Ry. Co., 182 F.2d 305 (10th Cir. 1950),

does not support Petitioner’s position. Headrick involved

a personal injury action filed in a New Mexico state court,

which was removed on diversity grounds. Neither Fed. R.

Civ. P. 81(c) nor Fed. R. Civ. P. 15(c) were at issue. The

only issue presented was the choice of state limitations

periods applicable when a removal case is transferred

from federal court in New Mexico to federal court in

California.

Anderson v. Allstate Insurance Co., 630 F.2d 677 (9th

Cir. 1980), also does not support Petitioner’s position. In

fact, in Anderson the court held that plaintiff’s amended

complaint adding a new defendant did not relate back to

the original timely filing and, therefore, plaintiff’s claims

were dismissed as being time barred. The sole reason for

partial reversal of the Anderson district court order dis-

missing plaintiff’s complaint was that plaintiff’s tortious

interference with business relations claim was found to

be controlled by a longer statute of limitations, making

———————

13

the amended complaint timely, and Fed. R. Civ. P. 15(c) a

non-issue.

Nealy v. Transportacion Maritima Mexicana S.A., 662

F.2d 1275 (9th Cir. 1980), a pre-Schiavone, decision, also

fails to support Petitioner’s position since it involved

neither Fed. R. Civ. P. 15(c) nor a relation back issue. In

fact, it was undisputed that Nealy’s action was brought

within the applicable California statute of limitations,

and the only issue on appeal was the court’s dismissal of

the action pursuant to Fed. R. Civ. P. 41(b), for failure to

prosecute.

Significantly, Petitioner refers in passing to a subse-

quent amendment to Fed. R. Civ. P. 15(c). In 1991, Fed. R.

Civ. P. 15(c) was amended. The advisory committee notes

indicate the amendment was in dict response to this

court’s decision in Schiavone. Fed. R. Civ. P. 15(c) advisory

committee’s note. The rule was amended April 30, 1991,

with an effective date of December 1, 1991. The District

Court properly applied the previous rule to this action, in

which the District Court accepted jurisdiction in June,

1990. Modification of the Federal Rule is not appro-

priately addressed by a grant of certiorari, but in any

event, Petitioner’s concerns have been addressed and

codified in Fed. R. Civ. P. 15(c) as amended, which now

provides that the period within which a defendant must

have notice of the claim for it to relate back includes the

period for service provided by Rule 4, 120 days. Fed. R.

Civ. P. 15(c)(3). Wedco did not receive notice of Peti-

tioner’s claims within 120 days. Therefore, even applying

Fed. R. Civ. P. 15(c) as amended, which fully addresses

any arguable harshness under the Schiavone decision,

Petitioner’s claims were properly dismissed.

14

Petitioner contends, without support, that 15(c) of the

Colorado Rules of Civil Procedure applies and that the

Colorado Supreme Court is unlikely to reverse its Dil-

lingham holding. However, Dillingham v. Greeley Publish-

ing Company, 701 P.2d 27 (Colo. 1985), pre-dates this

Court’s contrary holding in Schiavone v. Fortune, as well

as the 1991 amendment to Fed. R. Civ. P. 15(c). The

Colorado Supreme Court in Dillingham pointed out that

the Colorado Rules of Civil Procedure were patterned

after the Federal Rules and the District Court determined

as follows: “I conclude that if the Colorado Supreme

Court considered the question today, the court again

would follow the applicable Federal Rule. That rule is

now addressed by Schiavone...” (Petitioner’s Appendix

8a.)

Since the District Court’s determination as to the law

of the state in which it sits must be given deference,

Petitioner’s claims were properly held to be time barred.

This remains true whether application of the rule is made

pursuant to Schiavone, or under Fed. R. Civ. P. 15(c), as

amended.

CONCLUSION

Pursuant to this Court’s decision in Schiavone, Peti-

tioner’s claims were properly dismissed. Moreover, dis-

missal was appropriate whether the Court applied Fed. R.

Civ. P. 15(c) as interpreted by Schiavone, or Rule 15(c) as

amended in response to Schiavone.

Petitioner attempts to create an issue concerning

forum shopping. That federal courts may be closed to

15

litigation where state courts are open is no novel proposi-

tion. In fact, the complete diversity rule and the requisite

amount in controversy requirement presuppose such a

situation. In addition, the fact that relation back is tied to

the statute of limitations only serves to emphasize the

appropriateness of the Hanna analysis. To the extent Fed.

R. Civ. P. 15(c) prohibits federal court adjudication, it

serves to make dockets less crowded and evidence

fresher. The greater the procedural effect, the stronger the

claim that the relevant rule fulfills the purpose described

in the Rules Enabling Act. Hanna established that the

presumption of validity accorded the Federal Rules can

be rebutted only if the rule exceeds the bounds of the

Constitution or if substantive rights are abridged in viola-

tion of the Enabling Act. Further, Hanna seeks to put to

rest the threat to the uniformity and independence of the

federal rules from state procedure. By her petition, Shir-

ley O’Quinn seeks to have this Court replace the federal

rules with a mosaic of state procedures. The need for

uniformity is too important a goal to begin sliding down

such a slippery path.

Respectfully submitted,

GREENGARD SENTER GOLDFARB &

Rick

James E. GOLDFARB

400 S. Colorado Boulevard

Suite 700

Denver, Colorado 80222

Telephone: (303) 320-0509