# Opposition Brief — Murray v. National Broadcasting Co.

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0811%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1995
- **Citation:** 513 U.S. 1082

## Text

r) Buprems Cewt, U.S
No. 94-866 a FILE
| DEC 1
IN THE Bebicttetton ds.

Supreme Court of the United States

OCTOBER TERM, 1994

>

HWESU S. MURRAY,

Petitioner,
—against—

NATIONAL BROADCASTING COMPANY, INC.
and BRANDON TARTIKOFF,
Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

SUSAN BUCKLEY

80 Pine Street

New York, New York 10005
(212) 701-3000

; Counsel of Record

Of Counsel:

JUDITH A. ARCHER

CAHILL GORDON & REINDEL
(a partnership including

a professional corporation)
New York, New York

SUSAN WEINER

National Broadcasting Company, Inc.
New York, New York

i
QUESTIONS PRESENTED

(1) Whether the court below erred in reviewing the district
court’s denial of Rule 60(b) relief under an “abuse of dis-
cretion” standard?

(2) Whether the court below erred in deciding that, where
the federal courts have reasonably interpreted state law and a
subsequent state court decision arguably calls that interpre-
tation into question, a litigant is not entitled to relief under
Fed. R. Civ. P. 60(b)?

(3) Whether the court below erred in adjudicating peti-
tioner’s appeal when the third judge assigned to the panel
recused himself immediately prior to oral argument?

ii

TABLE OF CONTENTS

PAGE

QUES TIING PRMOMNOE ED a vcccccctccuccveuneuchakeos i
Sees Ue RR SOE hb ous ace cdbiccasueseseuneas ili
STAT EMGGECD GE Bi Gees cc cnccccccssaceeécteces 2
POOOURG GE UG DOTNET vin vieknssauescicisccecccasauns 2
Murray’s Motion Under Rule 60(b)............... 4

The Decision of the District Court ............... 6

The Decision of the Court of Appeals............ 6
SUMMARK OF ARGUMEINE ccccccccccceccsntcvcncses 8
REASONS FOR DENYING THE WRIT............... 10

I. THE APPROPRIATE STANDARD OF
APPELLATE REVIEW WAS CORRECTLY
APPLIED BY THE COURT OF APPEALS . 10

II. THE SECOND CIRCUIT’S DECISION
DOES NOT CONFLICT WITH PRIOR
DECISIONS OF THIS COURT OR THE
FOIE CUMING GAMEIIRU Es x cnr sn cedecansnkscness 12

III. THE ADJUDICATION OF PETITIONER’S
APPEAL BY A TWO-JUDGE PANEL WAS
PURI cave Uxcashiwdnvckiangcbouseseasauaes 16

(Ie IEE 6a hack evnas veneben gant duubeneaecayeien 18

ili
TABLE OF AUTHORITIES

Cases PAGE
Ackermann v. United States, 340 U.S. 193 (1950)..... 13
Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970) .... 10-11

In re Adoption of Jessica “XX”, 430 N.E.2d 896 (N.Y.
1981), aff’d sub nom. Lehr v. Robertson, 463
ee ica cbensprvcepescdeetenesscee 15n

Allen v. Johnson, 391 F.2d 527 (Sth Cir. 1968)........ 17n

Apfel v. Prudential-Bache Securities Inc., 616 N.E.2d
es ii ues padeecsshacencscsces ess passim

Ayrshire Collieries Corp. v. United States, 331 U.S.
SCS ERIS MN I ee ee 17n

Baxter International, Inc. v. Morris, 11 F.3d 90 (8th
we peguandgyeaces lin

Browder v. Director, Department of Corrections, 434
EG Sei vknccedehiccnssesceneeacescce 1]

Cotto v. United States, 993 F.2d 274 (Ist Cir. 1993)... Iin

Cruickshank & Co. v. Dutchess Shipping Co., 805 F.2d
IS WN neva 5 0b ade ddvdccesccveecesee 13

DeWeerth v. Baldinger, Nos. 93-7144, 7146, 1994 WL
588440 (2d Cir. Oct. 27, 1994), cert. denied, 63

U.S.L.W. 3386 (U.S. Nov. 14, 1994) ............ passim
Downey v. General Foods Corp., 286 N.E.2d 257 (N.Y.

A REE ny 3.3
Se, 0. ee, re Uae. BF CESSES) ... 2.0 ccc er ones. 11

Erie R.R. v. Tompkins, 304 U.S. 64 (1938) ........... passim

iV
PAGE

Factors Etc., Inc. v. Pro Arts, Inc., 652 F.2d 278 (2d
Cir. 1981), cert. denied, 456 U.S. 927 (1982).... 14-15

Ferber v. Sterndent Corp., 412 N.E.2d 1311 (N.Y.

RDUP vo sdncuacancccdupensesncinantedsnuactanvadanan Sn
Fraige v. American-National Watermattress Corp.,

996 F.26 ZPS COG, SP, EDS) ccacisescssecivassa lin
Gager v. White, 425 N.E.2d 851 (N.Y.), cert. denied,

GSE Ux CU LAOED vcas con tacdrssederesacesseucs 15n

Granoff v. Merrill Lynch & Co., 775 F. Supp. 621
(S.D.N.Y. 1991), aff’d mem., 962 F.2d 2 (2d Cir.
POPE even svg eda ves ngs ences eaubacent ia cdedentes 5n

Guaranty Trust Co. v. York, 326 U.S. 99 (1945)..... 14, 14n
High v. Zant, 916 F.2d 1507 (11th Cir. 1990), cert.

denied, 499 U.S. 954 (1991) ...... cc ccc cece cee eees lin
Matarese v. LeFevre, 801 F.2d 98 (2d Cir. 1986), cert.
denied, GOO UB. GOS Peo vividcctvcttececctaes lin

Minniefield v. Alabama, 542 F.2d 947 (Sth Cir. 1976) 17n

Murray v. National Broadcasting Co., 1990 Copyright
L. Dec. (CCH) 9 26,655 (Sup. Ct. N.Y. Co. 1990),
aff’d, 576 N.Y.S.2d 578 (App. Div. 1st Dep’t 1991),
appeal dismissed, 594 N.E.2d 936 (N.Y. 1992) .. 4n

Murray v. National Broadcasting Co., No. 8632/92
(Sup. Ct. West. Co. Jan. 25, 1993), appeal
pending, No. 93-05380 (2d Dep’t)................ 4n

Negron v. Peninsular Navigation Corp., 279 F.2d 859
Le Gee Se ohn ek ce eaadn Sadnenbaasecenehases 10n

Nevada v. United States, 463 U.S. 110 (1983)......... 16

Vv
PAGE
New Hampshire Insurance Co. v. Martech USA, Inc.,
PPS Fie FERS Coen GM. TIPE) ccc cccsicicccdvedess lin
People v. Pepper, 423 N.E.2d 366 (N.Y.), cert. denied,
454 U.S. 967 (1981), 454 U.S. 1162 (1982)...... 15n
Pierce v. Underwood, 487 U.S. 552 (1988)............ 12

Reinsurance Co. of America, Inc. v. Administratia
Asigurarilor de Stat, 902 F.2d 1275 (7th Cir.

Ring v. Estee Lauder, Inc., 702 F. Supp. 76 (S.D.N.Y.
1988), aff’d per curiam, 874 F.2d 109 (2d Cir.

SUE iedsdndescdiiiscinuceccascdedesssataiect Gasees 5n
Salve Regina College v. Russell, 499 U.S. 225

CES da snenteneduds chdedbwakedtsadhasendeernds nes lin-12n
Schildhaus v. Moe, 335 F.2d 529 (2d Cir. 1964)....... 13
Soule v. Bon Ami Co., 195 N.Y.S.2d 574 (App. Div. 2d

Dep’t 1922), aff'd, 139 N.E. 754 (N.Y. 1923).... 9 5n
Southern Pacific R.R. v. United States, 168 U.S. 1

SORE aiid seaedewekscld ceoneaenkidedecdvtbedeteens 16
Twelve John Does v. District of Columbia, 841 F.2d

Se LOOM, SR cash e cr danvédns Cnesceumwaiews lin

United States v. Glover, 731 F.2d 41 (D.C. Cir. 1984) 18

Western Pacific R.R. v. Western Pacific R.R., 345 U.S.
BE A sian debe he baseline vendioeenies 17

Woman Golfer, Inc. v. Meredith Corp., 792 F. Supp.
pay 5 | Be eh eee eee 5n

vi

PAGE

Congressional Materials
S. Rep. No. 275, 97th Cong., Ist Sess. (1981),

reprinted in 1982 U.S.C.C.A.N. 11............... 16-17
Rules
Fed. R. Civ. P.

PR os diate bac kvubtandenseudonaseie sein passim

EE onc ba wea chwadnuke dee eeae ae 6n, 13n

es I Sk xinc'n'e Wk bu wendeensdadesatiucceueee 8n, 10n

PD ahead sills Gs gk vec Sesencna wake 7, 10n, 13
Local Rules of the Second Circuit

SU BE css dads ac cneiunnceskevesseconnnusees 8, 8n
Supreme Court Rules

POS FD east bad dd dondias Viessteetwnsdideniends In
Statutes
Anti-Injunction Act

SO Ui BEE hab neg saetcecancsieccenes 4n
Civil Rights Law

G2 UA SD Pe RET Ss dos cddaviccssdunssdedies 2
Judicial Code

28 U.S.C. § 46(6) 1988) .............. 8, 10, 16, 17, 17n

28 U.S. Ge er ic chde vet eacdasctiaaucieess 17n

IN THE
Supreme Court of the United States

OCTOBER TERM, 1994
No. 94-866

lp ——-

HWESU S. MURRAY,
Petitioner,
—against—

NATIONAL BROADCASTING COMPANY, INC.
and BRANDON TARTIKOFF,
Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

>

RESPONDENTS’ BRIEF IN OPPOSITION

Respondents National Broadcasting Company, Inc.
(“NBC”)! and Brandon Tartikoff (“Tartikoff”) respectfully
submit that a writ of certiorari to review the judgment of the
United States Court of Appeals for the Second Circuit entered
on June 16, 1994 (rehearing and rehearing en banc denied,
August 12, 1994) should not issue because no question wor-
thy of the exercise of the Court’s certiorari jurisdiction is pre-
sented and because the decision below is in all respects
correct.

; Pursuant to Supreme Court Rule 29.1, Respondent NBC advises

the Court that it is a wholly-owned subsidiary of the General Electric
Company Inc. (“GE”), a publicly-owned corporation. NBC has no sub-
sidiaries or affiliates other than wholly-owned subsidiaries.

STATEMENT OF THE CASE

Nature of the Action

Ten years ago petitioner Hwesu S. Murray (“Murray”), then
an NBC sports division financial manager, instituted an action
against NBC and its entertainment division president, Bran-
don Tartikoff, claiming that they had misappropriated an idea
submitted by Murray to NBC personnel in 1980.? Murray
claimed that four years after he submitted his idea, for a pro-
gram entitled “Father’s Day”, it surfaced as the critically
acclaimed and financially successful The Cosby Show, which
was broadcast on the NBC television network. (JA 60, 65-66)?

Murray’s original complaint, filed in 1984, asserted a vari-
ety of claims, including, inter alia: (1) misappropriation and
conversion of his idea; (2) breach of implied agreement and
implied confidential relationship; and (3) unjust enrichment.
(JA 74-87) Murray did not claim that NBC had entered into
any contractual relationship with him; indeed he alleged that
NBC’s failure to do so was actionable under 42 U.S.C.
§ 1981. Murray sought an injunction against broadcast of The
Cosby Show, a declaration that he owns all rights to it, com-
pensatory and punitive damages and other relief. (JA 86-87)

In July of 1987 the district court granted summary judg-
ment for respondents and dismissed Murray’s complaint in its
entirety. 671 F. Supp. 236 (Pet. App. L). The court held that
the lack of novelty of Murray’s alleged “Father’s Day” sub-

2 The action was also brought against the Carsey-Werner Co.

(executive producer and copyright owner of The Cosby Show) and its
principals, Marcia Carsey and Thomas Werner. (JA 53) This action was
dismissed as against the Carsey- Werner Company and its two principals
with Murray’s consent. (JA 112-13)

3

References herein to “Pet. at__” are to the Petition for a Writ of
Certiorari. References herein to “Pet. App. __” are to the Appendices
annexed thereto. References herein to “JA __” are to the Joint Appendix
filed in the Court of Appeals for the Second Circuit on the appeal below.

3

mission precluded any recovery from the defendants. 671 F.
Supp. 236 (Pet. App. L at 41-47). In so holding, the court
expressly relied on a long line of New York state cases,
including the New York Court of Appeals’ seminal decision
in Downey v. General Foods Corp., 286 N.E.2d 257 (N.Y.
1972). 671 F. Supp. at 239 (Pet. App. L at 15-16). The district
court concluded that Murray’s “Father’s Day” proposal was
not novel because it merely combined ideas that had existed
in the industry for years and because Bill Cosby himself had
publicly discussed the possibility of developing a program
like The Cosby Show over 15 years before Murray’s proposal.
671 F. Supp. at 241-42, 244 (Pet. App. L at 24-25). Because
the district court held that “Father’s Day” was not novel, each
of Murray’s claims necessarily failed. A judgment of dis-
missal was entered on July 22, 1987. (Pet. App. K)

In April 1988, the Court of Appeals for the Second Circuit
affirmed the district court’s holding in an often-cited opinion,
844 F.2d 988 (Pet. App. J), agreeing with the district court’s
application and analysis of New York law. Like the district
court, the Court of Appeals was persuaded that Murray’s
“Father’s Day” proposal was not novel and therefore not pro-
tectable under New York law.

The Second Circuit denied Murray’s request for rehearing
and his suggestion for rehearing en banc, no member of the
Court having requested that a vote on rehearing be taken. (Pet.
App. I) On November 14, 1988, this Court denied Murray’s
petition for a writ of certiorari. 488 U.S. 955 (Pet. App. H).

Since this Court denied Murray’s original petition for a writ
of certiorari, Murray has instituted two separate actions
before the courts of the State of New York seeking the same
relief sought in his original federal litigation. Both of those
actions were dismissed by New York’s courts as barred by the
doctrine of res judicata.‘

4

In May of 1989, Murray improperly instituted his second action
claiming ownership rights to The Cosby Show before the New York
County Supreme Court. On motion by respondents, the federal district

4

Murray’s Motion Under Rule 60(b)

Six years after final judgment was entered against Murray,
the New York Court of Appeals announced its decision in a
wholly unrelated case styled Apfel v. Prudential-Bache Secu-
rities Inc., 616 N.E.2d 1095 (N.Y. 1993) (Pet. App. V). In
Apfel, plaintiffs sued defendant Prudential-Bache Securities
Inc. (“Prudential”) for breach of a written contract pursuant
to which plaintiffs conveyed to Prudential a group of ideas for
issuing and marketing municipal bonds and Prudential agreed
to compensate plaintiffs for use of those ideas. Apfel, 616
N.E.2d at 1095-96. The contract was negotiated and executed
after plaintiffs disclosed those ideas to Prudential. Thereafter,
Prudential performed and paid plaintiffs under the agreement
for more than two years before purporting to terminate the
agreement. /d. at 1096.

On appeal from the trial court’s rulings on various pre-trial
motions (as modified by the Appellate Division), the New
York Court of Appeals rejected Prudential’s argument, based
on Downey and other decisions (including the Second Cir-
cuit’s original decision in this case), that plaintiffs’ ideas were
not novel and, thus, could not constitute consideration for the

court issued an injunction pursuant to the relitigation exception of the
federal Anti-Injunction Act, 28 U.S.C. § 2283 (1988), in order to protect
its judgment. 718 F. Supp. 249 (Pet. App. G). The injunction prohibited
Murray from relitigating in state court any claims that had actually been
litigated before the district court. 718 F. Supp. at 251 (Pet. App. G at 10).
Subsequently, the state court made its own determination that so much of
the action as remained was barred by the doctrine of res judica:a and dis-
missed the complaint. Murray v. National Broadcasting Co., 1990 Copy-
right L. Dec. (CCH) 9] 26,655 (Sup. Ct. N.Y. Co. 1990), aff’d, 576
N.Y.S.2d 578 (App. Div. 1st Dep’t 1991), appeal dismissed, 594 N.E.2d
936 (N.Y. 1992). Undaunted, Murray filed his third complaint—identi-
cal to his second—before the New York Supreme Court, Westchester
County. Like his New York County action, this obviously improper
attempt to relitigate the district court’s judgment was dismissed as barred
by the doctrine of res judicata. Murray v. National Broadcasting Co.,
No. 8632/92 (Sup. Ct. West. Co. Jan. 25, 1993), appeal pending, No. 93-
05380 (2d Dep’t).

Ae ey Uy a &

1 rade matey owt Nec

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|

agreement. Jd. The Apfel court declined to review the ade-
quacy of the consideration for the agreement therein, finding
that the fact that defendant entered into it after reviewing the
ideas established that something of value had been trans-
ferred. The Apfel court held that if an idea is “fully disclosed”
and the interested purchaser determines after such disclosure
to enter into a contract for the exclusive right to purchase and
exploit the idea, the contract could still be enforced under
New York law in the absence of novelty. /d. at 1098.

The Apfel court took pains to reaffirm that the element of
novelty was still required in New York in the classic idea sub-
mission case—like this case—where there is no issue of a
“postdisclosure contract for use of the idea.” 616 N.E.2d at
1098 (emphasis in original). Distinguishing Downey and the
entire line of cases relied on by the district court in its orig-
inal decision in this case,’ the Court of Appeals explained that
where the parties have expressly contracted after disclosure
of the idea, “the question is not whether the buyer misap-
propriated property from the seller, but whether the idea had
value to the buyer and thus constitutes valid consideration.”
Id.

In August 1993, Murray moved to vacate the district court’s
original 1987 judgment in this case on the basis of the Apfel
decision. Despite the fact that the Apfel court made no sug-
gestion that the district court or the Second Circuit had erred
in their reading of New York law—and despite the fact that
Apfel expressly distinguished its facts from idea submission
cases such as this one—Murray argued that the Apfel decision
demonstrated that the district court’s grant of summary judg-

7 The string of idea submission cases, state and federal, applying

the novelty requirement is unbroken. See, e.g., Ferber v. Sterndent Corp.,
412 N.E.2d 1311 (N.Y. 1980); Soule v. Bon Ami Co., 195 N.Y.S. 574
(App. Div. 2d Dep’t 1922), aff’d, 139 N.E. 754 (N.Y. 1923); Ring v.
Estee Lauder, Inc., 702 F. Supp. 76 (S.D.N.Y. 1988), aff'd per curiam,
874 F.2d 109 (2d Cir. 1989); Woman Golfer, Inc. v. Meredith Corp., 792
F. Supp. 211 (S.D.N.Y. 1992); Granoff v. Merrill Lynch & Co., 775 F.
Supp. 621 (S.D.N.Y. 1991), aff'd mem., 962 F.2d 2 (2d Cir. 1992).

6

ment and the Second Circuit’s affirmance were contrary to
New York law when they were issued and remain so now. On
that faulty foundation, Murray erected the equally shaky
assertion that Rule 60(b) afforded him the right to reopen the
district court’s six-year-old judgment and proceed apace to
trial.

The Decision of the District Court

By Opinion and Order entered November 22, 1993, the dis-
trict court denied Murray’s motion for relief under Rule
60(b). 1993 WL 485584 (Pet. App. E). At the outset, the dis-
trict court noted that “it is not clear that a motion under Rule
60(b) is either proper or timely.” (Pet. App. E at 2)° Nonethe-
less, the court found that it was not necessary to resolve that
question because Murray had failed to demonstrate any “new
circumstances” to justify relief. (/d.) Analyzing the Apfel
decision, the district court concluded that “Murray misreads
Apfel.” (Id. at 3) The district court correctly found that “the
Apfel court carefully distinguished the facts before it from the
‘idea submission’ type of case brought by Murray,”
“expressly differentiat[ing] between the situation where the
parties enter into a contract for use of an idea after full dis-
closure of the idea and those such as Murray’s where there
never was a post-disclosure contract for use.” (/d. at 4, 6
(emphasis in original)) Accordingly, the district court held,
Apfel did not change the law applicable to Murray’s claims
and thus it declined to award relief under Rule 60(b). (/d. at 7)

The Decision of the Court of Appeals

Murray appealed to the Second Circuit, arguing that the
district court had abused its discretion in concluding that the
Apfel decision did not constitute an “extraordinary develop-

° Because Murray contended that the earlier decisions were incor-

rect, respondents had argued that he could only seek relief from judgment
under Fed. R. Civ. P. 60(b)(1), which is subject to an absolute one-year
time limit. Thus, his claim would be untimely even were it not otherwise
meritless.

7

ment” sufficient to justify Rule 60(b) relief. On June 16,
1994, the Second Circuit summarily affirmed the district
court's denial of Murray’s Rule 60(b) motion. (Pet. App. B)’
In an unpublished opinion (Pet. ‘App. D), the Second Circuit
noted that the Apfel court had found the contract at issue
therein enforceable even if the plaintiffs’ ideas were not novel
and had expressly distinguished the line of New York author-
ity requiring novelty, including its own 1988 opinion in this
case. Thus, the Court of Appeals held: “[a]s the district court
correctly noted, Apfel is not inconsistent with our prior deci-
sion in Murray, nor does it indicate that New York law has
since changed.” (Pet. App. D at 10)

The Second Circuit went on to state that even had Apfel
been inconsistent with its 1988 decision in this case, the
majority in that decision reasonably had construed New
York’s novelty requirement based on then-existing state court
precedent. (Pet. App. D at 7-8) “[WJhere the Second Circuit
reasonably predicts how New York courts will rule on a ques-
tion of state law, a subsequent decision by the New York
Court of Appeals that is contrary to the Second Circuit’s pre-
diction does not constitute an ‘extraordinary circumstance’
under Rule 60(b)(6).” (/d. at 7) The Second Circuit found
controlling its decision in DeWeerth v. Baldinger, Nos. 93-
7144, 7146, 1994 WL 588440 (2d Cir. Oct. 27, 1994), cert.
denied, 63 U.S.L.W. 3386 (U.S. Nov. 14, 1994), in which the
court reversed a grant of Rule 60(b) relic’ from a federal
judgment based on a subsequent New York Court of Appeals’
decision. The Second Circuit noted that DeWeerth provided a
much stronger case for Rule 60(b)(6) relief than this case did
because there the New York Court of Appeals had explicitly
ruled that the Second Circuit's earlier prediction of New York
law in the DeWeerth case itself was incorrect, whereas here

7 The order of the Court of Appeals was issued as a mandate on
September 6, 1994. (Pet. App. C) The appeal was decided by Chief Judge
Newman and Judge Lumbard. Judge Oakes was originally assigned to
hear the appeal but recused himself before oral argument thereof.

the Court of Appeals in Apfel had simply distinguished this
case from the one before it.®

Petitioner sought rehearing of the order of summary affir-
mance contending, inter alia, that the determination of the
appeal by two circuit judges after one judge recused himself
prior to oral argument violated 28 U.S.C. § 46(b) (1988) and
Second Circuit Local Rule § 0.14(b). The petition for rehear-
ing was denied on August 12, 1994. 35 F.3d 45 (2d Cir. 1994)
(Pet. App. A). Chief Judge Newman concluded that sec-
tion 46(b) and its legislative history indicated that the statute
was not intended to preclude disposition of an appeal by a
two-judge panel where one judge becomes unable to partici-
pate, but only requires that appeals be assigned to three
judges “in the first instance.” 35 F.3d at 47 (Pet. App. A at 4-
6). Thus, the Court of Appeals concluded, the fact that one
judge originally assigned to hear plaintiff’s appeal subse-
quently recused himself did not violate section 46(b).’

SUMMARY OF ARGUMENT

Parroting a list of factors that might warrant the exercise of
this Court’s jurisdiction in appropriate cases, Murray claims
that the decision below conflicts with this Court’s prior deci-
sions, that it conflicts with the decision of the New York
Court of Appeals, that it violates his constitutional rights and
that it otherwise presents important questions of federal law.

8 Finally, the Court of Appeals held, correctly, that Murray had

shown no basis for relief under Rule 60(b)(5) because, as was also the
case in DeWeerth, the judgment from which Murray sought relief had no
prospective application. Murray does not raise Rule 60(b)(5) in his peti-
tion as a basis for granting certiorari.

9

Chief Judge Newman also found that Second Circuit Local Rule
§ 0.14(b) did not preclude the disposition of petitioner’s appeal by two
judges. 35 F.3d at 48. Murray does not claim in the petition that the
determination of his appeal by a two-judge panel violated Local Rule
§ 0.14(b).

9

In truth, it does no such thing. It merely represents yet
another effort by this disappointed litigant—who to date has
filed three separate actions seeking an ownership interest in
The Cosby Show—to relitigate claims that were fully and
fairly litigated years ago.

First, Murray would have this Court abandon the “abuse of
discretion” standard of review in favor of a de novo standard
whenever an issue of state law is raised in support of a Rule
60(b) motion. Even had Murray not waived this point by fail-
ing to contest the standard in the court below, there is no suf-
ficient basis for this Court to exercise its certiorari
jurisdiction to consider a standard uniformly applied by all
circuit courts of appeals in reviewing determinations under
Rule 60(b).

Second, Murray contends that the decisions of the courts
below are inconsistent with the New York Court of Appeals’
decision in Apfel. What he is really saying is that the original
decisions of the district court and the Second Circuit were
wrong. Yet those decisions are clearly no longer subject to
review. The only question presented to the court below was
-whether relief under Rule 60(b) was properly denied—which
it was. Murray also asserts that the decision below conflicts
with this Court’s decision in Erie R.R. v. Tompkins, 304 U.S.
64 (1938), and violates its “outcome determinative” test.'° As
the Second Circuit has correctly held, both in the opinion
below and in DeWeerth, Erie requires only that federal courts
apply state substantive law in a diversity case; it does not
guarantee that federal courts will never misapply state law.
Granting review in this case on such a basis would suggest
that this Court’s certiorari jurisdiction is properly invoked
whenever a losing party in a diversity case discovers new

10

Indeed, this Court was recently asked to consider this same issue
in DeWeerth, and declined to do so. See 63 U.S.L.W. 3386 (U.S. Nov. 14,
1994). DeWeerth presented an even stronger case for review because the
subsequent state court decision there—unlike here—explicitly found the
federal court’s previous determination of state law to be incorrect.

10

authority in the controlling jurisdiction regardless of the
length of time that has passed—a result that the need for
finality of judgments precludes.

Third, and finally, the fact that Murray’s appeal was
decided by a panel of two judges did not violate 28 U.S.C.
§ 46(b), is not inconsistent with decisions of this Court, and
otherwise presents no important recurring federal question
that would justify expending this Court’s resources to resolve.

REASONS FOR DENYING THE WRIT

I. THE APPROPRIATE STANDARD OF APPEL-
LATE REVIEW WAS CORRECTLY APPLIED
BY THE COURT OF APPEALS

Murray contends that the Second Circuit erroneously
applied the “abuse of discretion” standard in reviewing the
district court’s denial of his Rule 60(b) motion and urges that
this Court use this opportunity to adopt a de novo standard of
review whenever an issue of state law is raised in support of
a motion under Rule 60(b). Yet, Murray neglects to advise the
Court that he failed to dispute the propriety of the “abuse of
discretion” standard before the Second Circuit (in his briefs
on the appeal or in his petition for rehearing)—indeed, he
specifically cited that standard as the proper one in his brief
to the court below." It is well-settled that “[w]here issues are

'l_ Point 1(A) of Murray’s Brief on Appeal to the Second Circuit

provided as follows:

A. STANDARD OF REVIEW: ABUSE OF DISCRETION

This Court reviews the denial of a motion brought pursuant to Rule
60(b)(5) and (6) by determining whether the district court has abused
its discretion. Negron v. Peninsular Navigation Corp. 279 F.2d 859
(2d Circ. 1960). In the appeal at bar the order of the district court,
which denied Murray’s motion to vacate its prior orders and judg-
ment, should be reversed because the district court abused its dis-
cretion. (Brief for Plaintiff-Appellant, dated February 3, 1994, at 12)

11

neither raised before nor considered by the Court of Appeals,
this Court will not ordinarily consider them.” Adickes v. S.H.
Kress & Co., 398 U.S. 144, 147 n.2 (1970); EEOC v. FLRA,
476 U.S. 19, 24 (1986) (per curiam) (Court “refrain[s] from
addressing issues not raised in the Court of Appeals”). Mur-
ray’s failure to contest—indeed, his endorsement of—the
“abuse of discretion” standard renders certiorari unwarranted.
See, e.g., EEOC v. FLRA, supra, 476 U.S. at 24 (dismissing as
improvidently granted writ of certiorari presenting questions
not raised in Court of Appeals).

Even had Murray not waived this argument by failing to
raise it before the Second Circuit, there is no conflict among
the federal courts regarding the appropriate standard of
review nor is there any important question of federal law to
be resolved by this Court. It is well-settled law that Courts of
Appeal review denials of Rule 60(b) motions only for an
abuse of discretion,’? as this Court has recognized in dictum.
Browder v. Director, Department of Corrections, 434 U.S.
257, 263 n.7 (1978) (appeals from denials of Rule 60(b)
motions reviewed “only for abuse of discretion”).

Notwithstanding the unanimity of the Courts of Appeal on
this issue, Murray asks this Court to discard this firmly-estab-
lished standard in favor of de novo review where Rule 60(b)
decisions involve determinations of state law. (Pet. at 22-23)

“a See, e.g., Baxter International, Inc. v. Morris, 11 F.3d 90. 92

(8th Cir. 1993); Fraige v. American-National Watermattress Corp., 996
F.2d 295, 297 (Fed. Cir. 1993); Cotto v. United States, 993 F.2d 274. 277
(Ist Cir. 1993); New Hampshire Insurance Co. v. Martech USA, Inc., 993
F.2d 1195, 1200 (5th Cir. 1993); High v. Zant, 916 F.2d 1507, 1509 (11th
Cir. 1990), cert. denied, 499 U.S. 954 (1991 ); Reinsurance Co. of Amer-
ica, Inc. v. Administratia Asigurarilor de Stat, 902 F.2d 1275, 1277 (7th
Cir. 1990); Twelve John Does v. District of Columbia, 841 F.2d 1133,
1138 (D.C. Cir. 1988); Matarese v. LeFevre, 801 F.2d 98, 107 (2d Cir.
1986), cert. denied, 480 U.S. 908 (1987).

13

In so doing, Murray cites as authority Salve Regina College v.
Russell, 499 U.S. 225 (1991), an appeal from a denial of a motion for
directed verdict involving a determination of state law claims. Salve

12

Rule 60(b), however, affords the district court “broad dis-
cretion” to grant or deny relief. Reinsurance Co. of America,
supra, 902 F.2d at 1277. Accordingly, because Rule 60(b)
relief is itself discretionary in nature, the Court of Appeals
properly applied an “abuse of discretion” standard of review.
See Pierce v. Underwood, 487 U.S. 552, 558 (1988) (matters
left to discretion of district court reviewable for abuse of dis-
cretion).

II. THE SECOND CIRCUIT’S DECISION DOES
NOT CONFLICT WITH PRIOR DECISIONS
OF THIS COURT OR THE NEW YORK
COURTS

Murray asserts that the New York Court of Appeals’ deci-
sion in Apfel restated what he claims had been settled New
York law prior to the decisions granting and affirming sum-
mary judgment in this case.'* (Pet. at 25-26) As such, what
Murray is actually urging is that the decisions of the district
court and the Second Circuit more than six years ago—not the
decisions below—were inconsistent with New York law and

Regina is distinguishable from this case because, as Murray concedes, it
is not a Rule 60(b) case. The district court there made a determination of
state law in deciding a directed verdict motion which, this Court held,
should have been reviewed by the Court of Appeals de novo. Id. at 231.
In contrast, the district court here did not make a determination of state
law but only determined whether petitioner had established grounds
which, in the court’s discretion, warranted relief from judgment under
Rule 60(b). The fact that an examination of state court decisions was
involved is irrelevant. To be sure, a determination of state law was made
by the district court here when it granted summary judgment in 1987 dis-
missing petitioner’s state law claims. Consistent with Salve Regina, the
Second Circuit reviewed that decision de novo. See Murray, supra, 844
F.2d at 992-95 (Pet. App. J at 18).

14

Murray mischaracterizes the Apfel decision as holding that an
idea need only be novel as to the defendant. (Pet. at 26-27) As the Sec-
ond Circuit correctly found, however, the statement relied on by Murray
was in dictum and, at best, Apfel left the “novelty as to the buyer” issue
unresolved. (Pet. App. D at 6)

13

therefore wrong. (Jd. at 27) Murray made this argument the
last time he petitioned this Court to review his case and it has
long since been put to rest. The only issue that Murray may
request this Court to consider is whether the courts below
properly denied his request for relief from the earlier judg-
ment under Rule 60(b)(6). As we demonstrate below, they did.

Even assuming that the earlier decisions misinterpreted
then-existing New York law, the mere misinterpretation or
error of law is not grounds for relief under Rule 60(b)(6).'> If
it were, the concept of finality would be meaningless. Indeed,
both this Court and the Second Circuit have made clear that
Rule 60(b)(6) simply cannot be used as a substitute for an
appeal. Ackermann v. United States, 340 U.S. 193, 198
(1950); Cruickshank & Co. v. Dutchess Shipping Co., 805
F.2d 465, 468 (2d Cir. 1986); Schildhaus v. Moe, 335 F.2d
529, 531 (2d Cir. 1964).

Murray then makes the overarching assertion that the deci-
sion below conflicts with the doctrine set forth in Erie R.R. v.
Tompkins. Murray’s logic proceeds, as best as respondents can
follow it, from the assumption that had he chosen to bring his
action in state court (which he did not), he would have won.
Inasmuch as he lost in federal court, what he calls the Erie
“outcome determination” principle requires, ipse dixit, that he
be relieved from the federal judgment.

At bottom, however, Murray’s argument fundamentally
misinterprets the holding in Erie. Erie does not seek to guar-
antee that the federal courts will never misapply state law. It
merely requires that the federal courts apply state substantive
law in a diversity case rather than a separate federal common
law. The “outcome determinative” test is, of course, simply
the means by which federal courts distinguish those issues
that “so intimately affect recovery or non-recovery” that they

IS Such a claim must be asserted, if at all, under Rule 60(b)(1),

which Murray did not raise and which, in any event, would be barred by
the one-year time limit applicable to claims brought thereunder.

14

require reference to state substantive law from those issues
that do not, as to which federal procedural law should prop-
erly be applied. Guaranty Trust Co. v. York, 326 U.S. 99, 110
(1945).'° Here, as the Second Circuit recognized (Pet. App. D
at 7), there is absolutely no suggestion that the district court
or the Second Circuit did anything but faithfully look to state
law for the rule of decision. That, according to Murray, they
misread that rule of decision, simply does not implicate Erie.

Courts, federal and state alike, are daily faced with the task
of interpreting and applying the laws of other jurisdictions
without possible resort to the highest court in the controlling
jurisdiction. Litigants do not get a second chance merely
because some subsequent decision from the controlling juris-
diction suggests that there may have been a mistake.'’ See
DeWeerth, 1994 WL 588440, * 7 (“There is nothing in Erie
that suggests that consistency must be achieved at the expense
of finality, or that federal cases finally disposed of must be
revisited anytime an unrelated state case clarifies the appli-
cable rules of law.”); Factors Etc., Inc. v. Pro Arts, Inc., 652
F.2d 278, 282 (2d Cir. 1981) (the fact that “a federal court’s
decision on state law cannot be corrected, for the benefit of
the litigants in the particular case, by the state’s authoritative
tribunal” is the “price [that] must be paid” for diversity juris-

16 Murray misrepresents the holding of Guaranty Trust Co. v. York

by deleting a material portion of a quote. (Pet. at 25) Murray quotes the
case as stating: “[T]he outcome of the litigation in the federal court
should be substantially the same. . . as it would be as if tried in a State
Court.” (Jd.) The quotation actually reads: “[T]he outcome of the liti-
gation in the federal court should be substantially the same, so far as
legal rules determine the outcome of a litigation, as it would be as if tried
in a State Court.” 326 U.S. at 109 (emphasis added to show ellipsed
material).

17

In the end, Murray’s Erie argument, like his others, proceeds
from the faulty baseline assumption that Apfel demonstrates that the dis-
trict court and the Court of Appeals erred in applying New York law. The
decision in Apfel provides no foundation for such arguments and Murray's
tortured effort to invoke the Erie doctrine in support of them is meritless.

15

diction), cert. denied, 456 U.S. 927 (1982). The Constitution
requires only that courts attempt to apply other jurisdiction’s
laws properly, not that they must always succeed. DeWeerth,
supra, 1994 WL 588440, * 7; Factors, supra, 652 F.2d
at 281-82.

Murray proffers various policy arguments, presumably in
an attempt to entice this Court to grant review given the
absence of a clear legal basis to do so. He asserts that litigants
should not have to bear the burden of erroneous determina-
tions of state law by federal courts. Of course, Murray’s pol-
icy argument on the “burden of error” incorrectly assumes
that state courts are immune from error and that no such bur-
den would exist there.'* Moreover, every litigant who chooses
a federal forum over a state forum knows full well that deter-
minations of state law will be made by the federal court and,
therefore, must bear this burden. See DeWeerth, 1994 WL
588440, * 6 (to hold otherwise “would be tantamount to hold-
ing that the doctrine of finality does not apply to diversity
judgments”).

Murray further argues that the need to correct erroneous
decisions should outweigh the need for finality in litigations.
He also tries to imply that this Court has instructed that final-
ity is not as important as, inter alia, the prevention of forum

is Even assuming that Apfel represented a change in New York

law, it is noteworthy that even the courts of New York would decline to
vacate an earlier state court judgment grounded in a differing interpre-
tation of New York law. A change in law will not be applied in New York
State courts “to actions and proceedings which had been finally deter-
mined and whose judicial life had then expired.” In re Adoption of Jes-
sica “XX”, 430 N.E.2d 896, 898 (N.Y. 1981), aff’d sub nom. Lehr v.
Robertson, 463 U.S. 248 (1983). See also, e.g., People v. Pepper, 423
N.E.2d 366, 369 (N.Y.) (change in law only applied to cases “still on
direct review at the time the change in law occurred”), cert. denied, 454
U.S. 967 (1981) and 454 U.S. 1162 (1982); Gager v. White, 425 N.E.2d
851, 853-54 & n.1 (N.Y.) (new decisions applied to “cases still in the nor-
mal litigating process”), cert. denied, 454 U.S. 1086 (1981).

16

shopping.'® (Pet. at 42) However, this court has often stressed
the need for finality in judgments. As Justice Harlan warned
in Southern Pacific R.R. v. United States, 168 U.S. 1, 49
(1897), if “conclusiveness did not attend the judgments of
[judicial] tribunals” they would serve no purpose. See also
Nevada v. United States, 463 U.S. 110, 129 (1983).

Ill. THE ADJUDICATION OF PETITIONER’S
APPEAL BY A TWO-JUDGE PANEL WAS
PROPER

Finally, Murray claims that the petition should be granted so
that this Court can determine whether the adjudication of his
appeal by a two-judge panel after one judge recused himself
immediately before oral argument violates 28 U.S.C. § 46(b)
(1988) and the “tradition” of three-judge panels recognized by
this Court. (Pet. at 42-47) As Chief Judge Newman aptly
stated, this merely “raises an institutional issue of court pro-
cedure”, 35 F.3d at 46, and thus does not present an important
or recurring federal issue sufficient to warrant the granting of
a writ of certiorari.

Section 46(b) states, in pertinent part, that “[iJn each circuit
the court may authorize the hearing and determination of
cases and controversies by separate panels, each consisting of
three judges. . . .” As Chief Judge Newman recognized, the
legislative history of section 46(b) demonstrates that it was
not intended to preclude dispositions of appeals by two-judge
panels where one judge becomes unabie to participate prior to
oral argument. 35 F.3d at 47 (citing S. Rep. No. 275, 97th

19

Petitioner asserts that the decision below “squarely conflicts”
with Erie, which Murray misquotes as holding that “ ‘[N]o lapse of time’
should prevent a federal district court from ‘correct[ing]’ its prior Erie
violations.” (Pet. at 41 (citations omitted)) Contrary to Murray’s impli-
cation, however, Erie admonished that an unconstitutional assumption of
power by federal courts in refusing to apply state law must be corrected
regardless of any “lapse of time” (Erie, supra 304 U.S. at 79-80). Here,
petitioner does not allege that the district court refused to apply state law,
but only that its application of state law was incorrect.

17

Cong., ist Sess. 9 (1981), reprinted in 1982 U.S.C.C.A.N. 11,
19).”° Section 46(b) requires only that all appeals be assigned
“in the first instance” to three-judge panels. See S. Rep. No.
275, supra; Murray, supra, 35 F.3d at 47. To hold otherwise
would not only contravene the legislative history, but would
deprive circuit courts of the flexibility and efficiency nec-
essary to adjudicate cases without undue delay.?!

Murray also contends that the use of a two-judge panel vio-
lates the “tradition” of three-judge panels recognized by this
Court in Western Pacific R.R. v. Western Pacific R.R., 345
U.S. 247, 256 (1953). The situation here is confined to infre-
quent and unanticipated situations and there is no reason to
believe that the use of two-judge panels will become standard
practice or will encourage judges to recuse themselves on the
eve of oral argument. As Chief Judge Newman recognized,
the use of two-judge panels in limited circumstances, while
not the preferred method of adjudicating cases, nevertheless
is warranted where assembling a three-judge panel would

” The Senate’s Report’s identification of death and disability

“does not preclude unavailability because of late-discovered disquali-
fication.” Murray, supra, 35 F.3d at 47.

21 The Second Circuit’s interpretation of § 46(b) is also consistent

with § 46(d) which, in providing that “a majority of the number of judges
authorized to constitute a court or panel thereof. . . shall constitute 2
quorum,” contemplates the use of two-judge panels. See 35 F.3d at 47
(use of two-judge panels “is explicitly borne out by subsection 46(d)”);
Minniefield v. Alabama, 542 F.2d 947 (Sth Cir. 1976) (per curiam) (two-
judge panel constituted quorum to hear case). Indeed, although petitioner
is correct in asserting that a “quorum” is not a “panel,” a quorum of two
judges is all that is required under § 46(d) to hear and decide an appeal.
See Ayrshire Collieries Corp. v. United States, 331 U.S. 132, 138 (1947)
(“Two judges of a three-judge circuit court of appeals. . . ordinarily
constitute a statutory quorum for the hearing and determination of
cases.”) To adopt petitioner’s strict interpretation of § 46(b) would ren-
der § 46(d) meaningless, which clearly was not Congress’ intent. See,
e.g., Allen v. Johnson, 391 F.2d 527, 529-30 (Sth Cir. 1968) (per curiam)
(“[I]t is not reasonable to suppose Congress desired or intended any such
wasteful consequences.”).

18

result in a waste of limited judicial resources. 35 F.3d at 48
(quoting United States v. Glover, 731 F.2d 41, 51 (D.C. Cir.
1984) (Mikva, J., dissenting) (“[A]s our dockets have become
more full, a need for the efficient use of judicial resources has
arisen, and. . . this quest for efficiency on occasion must be
balanced against the need for judicial pluralism.”)). Thus, for
reasons of judicial economy, a two-judge panel was necessary
and appropriate under the circumstances presented here and
raises no issue warranting the grant of certiorari.

CONCLUSION
The petition for a writ of certiorari should be denied.

Dated: New York, New York
December 14, 1994

Respectfully submitted,

SUSAN BUCKLEY

80 Pine Street

New York, NY 10005
(212) 701-3000

Counsel of Record

Of Counsel:

JUDITH A. ARCHER
CAHILL GORDON & REINDEL
(a partnership including

a professional corporation)
New York, New York

SUSAN WEINER

National Broadcasting Company, Inc.
New York, New York

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0811%3A2. Public record. Not legal advice.