# Opposition Brief — Wal-Mart Stores, Inc. v. Follette ex rel. Follette

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1995
- **Citation:** 516 U.S. 814

## Text

In The

Supreme Court of the United States

October Term, 1994
, 4
WAL-MART STORES, INC.
d/b/a SAM’S WHOLESALE CLUB and/or
SAM’S WHOLESALE CLUB, a Division of
WAL-MART STORES, INC.,

Petitioner,

Vv.

KENT ANDREW FOLLETTE and JANE
ELIZABETH FOLLETTE, Individually and
as Next Friend of ANDREW STEPHENSON
FOLLETTE, a Minor Child,

Respondents.
+
On Petition For A Writ Of Certiorari

To The United States Court Of Appeals
For The Eighth Circuit
*

RESPONDENTS’ BRIEF IN OPPOSITION TO THE
PETITION FOR A WRIT OF CERTIORARI

*
Of Counsel: James A. Rasmussen
A E. “Tom” Counsel of Record
Gary SOUTHARD
fo a e JOHNSON & ASSOCIATES

255 East College Street Wichita Falls, Texas

Batesville, Arkansas
¢ 76307-8185
72503-2595 (817) 761-3344
Rosert Levy FAX (817) 761-3355
P.O. Box 777
Ae? cain, Ruston, Louisiana 71270

eR ae hee ep rare
Se er AY A 06s csoscstnwnngeaenes a i
TABLE OF AUTIROISEAEO cccivosicsccatsveeseedans iii
STATEMENT OF ZPSe CAB cic ccs viccnatdessuucns 1
REASONS FOR DENYING WRIT ..............6.6- 1
CONCLUSION 6 ti cieevistduiese kien 9

iii

TABLE OF AUTHORITIES

Page
Cases
Aerojet-General v. Askew, 511 F.2d 710 (5th Cir.
re ee Se SR, PR oo eas awee cansess 4,6
Austin v. Super Valu Stores, 31 F.3d 615 (1994)........ 1
Bates v. Union Oil Co., 944 F.2d 647 (9th Cir. 1991)..... 5
Forrester v. Southern Ry., 268 F. Supp. 194 (D.C. Ga.
EN ee Nee eee EL eta etn gas anthers oe.e 2

Gatzemeyer v. Vogel, 589 F.2d 360 (8th Cir. 1978) ....2, 6

Glus v. Brookiyn, 359 U.S. 231 (1959) .........2....00. 8
Gramm v. Lincoln, 257 F.2d 250 (9th Cir. 1958)...... .
Guaranty Trust Co. v. New York, 326 U.S. 99 (1945) ..... 6
Hanna v. Plummer, 380 U.S. 460 (1965)................ 6
Hayles v. Randall Motor Co., 455 F.2d 169 (10th Cir.

SE CI NaN purple dn wehbe bev ke dex 0h bk scenes ress 2
Hicks v. O'Meara, 31 F.3d 744 (8th Cir. 1994) ......... 1
Howard v. Green, 555 F.2d 737 (8th Cir. 1977)......... 9
Jones v. Menard, 559 F.2d 1282 (5th Cir. 1977)......... 9

Kern v. Hettinger, 303 F.2d 333 (2d Cir. 1962) ..2, 3, 4, 6

Lane v. Peterson, 899 F.2d 737 (8th Cir.) cert. denied
SE EU oo so ss on wee che wa des ech cous 7, 8

iv

TABLE OF AUTHORITIES —- Continued

Page
Lane v. Sullivan, 900 F.2d 1247 (8th Cir.), cert.

Getta TIO TEs Te Len has oh os Np chad A bes 7
Makarim v. Rinard, 336 F.2d 333 (3rd Cir. 1964)....... 2
Poe v. John Deere Co., 695 F.2d 1103 (8th Cir. 1982)..... 6
Provident Tradesmens Bank & Trust Co. v. Lumber-

mens Mut. Cas. Co., 411 F.2d 88 (3d Cir. 1969)...... 2
Rust v. First National Bank, 466 F. Supp. 135 (D.

WO. Te ai.ei5.0 kg oe bac een aed hd hes BAe Bs sae 2
Semler v. Psychiatric Institutes of Washington D.C.

INC., SIS Tae ek Tac. 4 Fes a hechs Fasc 5 a
Sherrill v. McShan, 356 F.2d 607 (9th Cir. 1966) ....... 6
Skrzat v. Ford Motor Co., 389 F. Supp. 753 (D.R.I.

SOF s én vee ukseccoy en Ca eee hai ks 2

Southwest Airlines Co. v. Texas Intern. Airlines, 546
F.2d 84 (5th Cir. 1977) cert. denied 434 U.S. 832 ...4, 5

Washington Public Power Supply v. Pittsburgh-Des
Moines Corp., 876 F.2d 690 (9th Cir. 1989) .......... 5

Welch v. Crown Zellerbach Corp., 359 So.2d 154 (La.
BRI so cance Koo) eee ee el wes Cee EE aoa 8

Williams v. Ocean Transport Lines, Inc., 425 F.2d
ENE CO SAE TOGO vies 62s ohn colette she eek aeks 2, 6

Wilson v. Retail Credit Co., 474 F.2d 1260 (5th Cir.
RIFE. edcicwaicd 0k we edn eed Eee es ae Kak Ohne 2

Vv

TABLE OF AUTHORITIES - Continued

Page

CONSTITUTION
SON SE Bc pbs bn WEN Rk ev eee 1
STATUTES AND RULES
MP Recs EP 5 2 4 S'S 49K Go PEN eda ehhlbs rk ees 1,3
ne | SEA PREC apis rae ene iS eee Age dn a
oe. Fee Deen An BTS. 6 5 A Ae 7, 8
ie. ev. mene. in, BAO is a hoa ak
OTHER SOURCES
18 Wright, Miller & Cooper, Federal Practice &

Procedure § 4472 (1981 & Supp. 1994)............. 6
Uniform Commercial Code Art. 2...............0005. 9
Restatement of Judgments 2d § 26(1)(c).............. 8

1A Moore’s Federal Practice § 0.311[2]............... 6

STATEMENT OF THE CASE

An accurate statement of the case and proceedings
below is reported in the opinions of the Eighth Circuit
(Petition for Writ of Certiorari App. 1a-8a; 33a-36a) Fol-
lette v. Wal-Mart Stores, Inc., 41 F.3d 1234 reh’g granted 47
F.3d 311.

REASONS FOR DENYING WRIT

The Eighth Circuit explained its choice-of-law deci-
sion regarding the doctrine of res judicata as follows:

When a federal court is sitting in diversity, the
preclusive effect of a prior judgment is deter-
mined by the preclusion rules of the forum
which provided the substantive law underlying
that prior judgment. Hicks v. O'Meara, 31 F.3d
744, 746 (8th Cir. 1994). This rule applies when
the original judgment is that of another federal
court sitting in diversity. Austin v. Super Valu
Stores, 31 F.3d 615, 617-18 (1994).

See Petition for Writ of Certiorari, App. 5a.

This proposition originates by authority of the Full
Faith and Credit Clause of the United States Constitution,
U.S. Const. Art. IV § 1, and its statutory complement, 28
U.S.C. § 1738. These provisions require that federal courts
sitting in diversity lend prior diversity judgments of
other federal courts the same full faith and credit as
would exist between two state courts. In such situations,
state, not federal, law dictates the outcome. Semler v.
Psychiatric Institutes of Washington D.C. Inc., 575 F.2d 922
(D.C. Cir. 1978).

Petitioners suggest that the decisions of the Eighth
Circuit complicate and confuse an already conflicting
jumble of views. They define two emerging lines of cases,
one group forming a majority rule, which obliges federal
courts to apply only federal law on res judicata matters,
Kern v. Hettinger, 303 F.2d 333 (2d Cir. 1962), and a minor-
ity rule mandating that a federal court sitting in diversity
look to the res judicata law of the state where it sits for
guidance, Gramm v. Lincoln, 257 F.2d 250 (9th Cir. 1958).
Petitioners contend the Eighth Circuit decisions are out of
step with both majority and minority rules thereby mak-
ing new law where none existed. See Petition for a Writ of
Certiorari, at 11-13. Actually, the Eighth Circuit’s deci-
sions track a long line of cases employing state law from
the first forum to determine the res judicata effects of an
earlier diversity judgment. Gatzemeyer v. Vogel, 589 F.2d
360, 362 (8th Cir. 1978); Wilson v. Retail Credit Co., 474 F.2d
1260 (5th Cir. 1973); Hayles v. Randall Motor Co., 455 F.2d
169, 173 (10th Cir. 1971); Provident Tradesmens Bank &
Trust Co. v. Lumbermens Mut. Cas. Co., 411 F.2d 88, 94-95
(3d Cir. 1969) (preclusion within the course of a single
diversity action); Makarim v. Rinard, 336 F.2d 333, 334 (3d
Cir. 1964); Rust v. First National Bank, 466 F. Supp. 135, 138
(D. Wyo. 1979); Skrzat v. Ford Motor Co., 389 F. Supp. 753
(D.R.I. 1975); Forrester v. Southern Ry., 268 F. Supp. 194,
195-196 (D.C. Ga. 1967).

Nevertheless, a number of circuits have announced
that federal res judicata principles rather than state law be
applied as a choice of law. However, evaluation of the
circumstances behind these divergent opinions generally
reflects the existence of an overriding federal interest. Semler
provides clarity to these apparently dissimilar decisions:

[W]e believe that the principles of Erie * * * and
the mandate of the Full Faith and Credit Clause
as supplemented by 28 U.S.C. § 1738 require a
federal court exercising diversity jurisdiction in
forum II to give to the judgment of a federal
court exercising diversity jurisdiction in forum I
the same full faith and credit that a state court in
forum II would be obliged to give the judgment
of a state court in forum I, at least in the absence
of an overriding federal interest.

575 F.2d at 927-928 (emphasis added).

Put another way, if there is an overriding federal inter-
est, federal principles will apply notwithstanding the Erie
doctrine, the Full Faith and Credit Clause and 28 U.S.C.
§ 1738. However, when no overriding federal interest
exists, state law should control. Consideration of the var-
ious leading cases supports this conclusion.

The majority viewpoint is based primarily upon the
opinion in Kern v. Hettinger. This prototype case involved
the res judicata effect of a Fed.R.Civ.P. 41(b) want-of-
prosecution dismissal. Thus, the integrity of the Federal
Rules of Civil Procedure was at stake. Not surprisingly,
the Court abandoned any notions of state law and federal
rules of res judicata were applied. The Kern Court stated
its concerns:

It would be destructive of the basic principles of the
Federal Rules of Civil Procedure to say that the
effect of a judgment of a federal court was gov-
erned by the law of the state where the court sits
simply because the source of federal jurisdiction
is diversity. * * * [W]e think it would be strange
doctrine to allow a state to nullify the judgments
of federal courts constitutionally established

and given power also to enforce state created
rights.

303 F.2d at 340 (emphasis added).

In another leading and oft-cited case, Aerojet-General
v. Askew, 511 F.2d 710 (5th Cir. 1975) cert. denied 423 U.S.
908 (1975), evidence of collusive conduct jeopardized the
power of a prior federal court judgment. The Fifth Cir-
cuit, in its opinion, favorably cited the Kern decision and
followed federal principles of res judicata. Aerojet-General,
however, involved an attack upon a prior federal court
order directing specific performance of a land sale con-
tract by state officials, raising a serious federal question.
The court recognized the necessity, in such cases, of pro-
tecting federal diversity judgments and fending off collu-
sive conduct which might circumvent federal judicial
power. A revealing aspect of Aerojet-General was the
rather direct threat posed to the court’s injunctive powers
which, in turn, triggered the action of the court. Therein,
the Court reasoned, “nullification of a federal court judg-
ment would be precisely the result in this case if, as Dade
County urges, the District Court had been obliged to
follow state law to decide the question of res judicata.”
511 F.2d at 716 (emphasis added).

Similarly, other cases have recognized this principle
either explicitly or implicitly. For example, in Southwest
Airlines Co. v. Texas Intern. Airlines, 546 F.2d 84 (5th
Cir.1977) cert. denied 434 U.S. 832, the Fifth Circuit stated:

Federal law of res judicata controls this case.
Even though the holding of Southwest I relied
on state law, the effect of the case on parties and
nonparties presents a question of federal law distinct
from the local issues decided.

546 F.2d at 94 (emphasis added). Likewise, in Williams v.
Ocean Transport Lines, Inc., 425 F.2d 1183 (3d Cir. 1970),
the Court stated:

Where so substantial a federal interest is involved as
the multiplicity of claims arising out of seamen’s
and long-shoremen’s accidents, a federal court
should be able to decide for itself whether or not
a greater preclusionary effect may be given to a
prior judgment than would be given in the state
of the first forum.

425 F.2d at 1189-1190 (emphasis added).

Once again an overriding federal interest influenced
the choice-of-law decision. Federal issues of law arose
which were distinct from the state legal issues. This factor
predictably governed the court’s choice-of-law holding.
Evidence of similar federal interests permeate those deci-
sions supporting the majority rule.

The so-called minority rule of the Ninth Circuit advo-
cates reliance upon state law of the second forum. Gramm
v. Lincoln, 257 F.2d 250, 255 & n. 6 (9th Cir. 1958); Bates v.
Union Oil Co., 944 F.2d 647, 649 (9th Cir. 1991); Washington
Public Power Supply v. Pittsburgh-Des Moines Corp., 876
F.2d 690, 699 (9th Cir. 1989). In each of these cases,
however, both courts, first and second, were located in
the same state, therefore only one forum’s law came into
play. Regardless, the willingness of the Ninth Circuit to
also rely upon state law suggests that, absent a particular
threat to the independence of the federal jucicial system,
state res judicata law, derived from the second forum,
presents an acceptable and convenient choice of law.

Federal treatises discuss the seemingly perplexing
and confusing differences between the circuits. See 18
Wright, Miller & Cooper, Federal Practice & Procedure
§ 4472 (1981 & Supp. 1994); 1A Moore’s Federal Practice
§ 0.311[2]. Indeed, varying views appear as each of the
circuit courts of appeal proclaim choice-of-law decisions
on res judicata matters. However, careful examination of
the facts and circumstances underlying these cases such
as Kern, Aerojet-General and their progeny, reveal the
development of a more practical proposition. If an over-
riding federal interest presents itself — such as a threat to
the Federal Rules of Civil Procedure, or a purely federal
question, or an attack upon the inherent power of the
federal court system — then the second federal forum is
justified, and frequently does apply federal law as a
measure of judicial self-defense. Even the Eighth Circuit
has supplied appropriate federal res judicata law in such
situations. Poe v. John Deere Co., 695 F.2d 1103, 1105 (8th
Cir. 1982). On the other hand, when no federal interest
appears and no threat is posed, a federal court sitting in
diversity assumes its role as an adjunct to the state court
system, Sherrill v. McShan, 356 F.2d 607 (9th Cir. 1966); see
also Guaranty Trust Co. v. New York, 326 U.S. 99 (1945), and
routinely applies state law without controversy. See
Gatzemeyer, supra; cf. Hanna v. Plummer, 380 U.S. 460
(1965). It might even be argued that applying federal law
includes the right of each circuit, if necessary, to draw
upon appropriate state law to resolve res judicata issues.
See Williams, supra. This makes sense, particularly in
diversity suits of a routine nature that have little or no
impact on federal courts or their procedure. Conse-
quently, the conflict as presented here is not really of such
importance as to warrant certiorari review.

In any case, the facts underlying this particular deci-
sion do not portray an overriding federal interest. Both
the Louisiana lawsuit and the second Arkansas action
might just as easily have been brought in state court as
purely state actions. Diversity of citizenship formed the
sole foundation for federal jurisdiction in both cases.
Certainly, no threat to an “independent federal judiciary”
was detected by the Eighth Circuit. In using Louisiana
preclusion law to resolve the issue at hand, the Eighth
Circuit simply recognized the practicality of applying
state law when no federal interest was involved. Lane v.
Sullivan, 900 F.2d 1247, 1250 (8th Cir.), cert. denied 498 U.S.
847 (1990). In so doing, they achieved a just result consis-
tent with both Louisiana law and federal principles. Lane
v. Peterson, 899 F.2d 737 (8th Cir.) cert. denied 498 U.S. 823
(1990).

Moreover, there exist several practical reasons why
this case would be inappropriate for resolving an intercir-
cuit conflict: (1) the peculiar facts of this case do not pose
a recurring judicial problem; (2) the res judicata law of
Louisiana embodied in La. Rev. Stat. Ann. §§ 13:4231,
13:4232 constitute civil res judicata, which is different
from common law res judicata as found in most other
states; and finally, (3) the same result would obtain even
if federal principles of res judicata were used.

First, the peculiar procedural facts of this case are not
reasonably capable of repetition. The Eighth Circuit char-
acterized the Follettes’ situation as an “odd and compli-
cated series of procedural events” resulting in a “bizarre

predicament.” See Follette, supra. Because of the case’s
factual posture, the likelihood of such facts recurring is
virtually nil. A recurring problem would, of course, jus-
tify a grant of certiorari review, Glus v. Brooklyn, 359 U.S.
231 (1959). Follette is not such a case.

Second, La. Rev. Stat. Ann. §§ 13:4231, 13:4232 repre-
sent civil res judicata which is a different concept than the
common law variety of res judicata found in most jurisdic-
tions. Welch v. Crown Zellerbach Corp., 359 So.2d 154, 156
(La. 1978). As such, this Court in granting certiorari
would be evaluating statutory and arguably substantive
law of Louisiana. This fact creates unique analytical prob-
lems in fashioning a broad decision applicable to com-
mon law jurisdictions.

Lastly, the same result would issue even under
accepted principles of res judicata. See Lane v. Petersen,
supra. The Follette court noted that the Eighth Circuit has
previously applied general principles of res judicata,
including the Restatement of Judgments 2d. The Restate-
ment of Judgments 2d § 26(1)(c) provides an exception to
the general rule of preclusion:

The plaintiff was unable to rely on a certain theory
of the case or to seek a certain remedy or form
of relief in the first action because of the limita-
tions on the subject matter jurisdiction of the courts
or restrictions on their authority to entertain
multiple theories or demands for multiple
remedies or forms of relief in a single action,
and the plaintiff desires in the second action to
rely on that theory or to seek that remedy or
form of relief.

Here, the Follettes in their Louisiana lawsuit were
prevented from advancing a UCC claim because Louisi-
ana has not adopted Article 2 of the Uniform Commercial
Code and does not provide an equivalent remedy. Jones v.
Menard, 559 F.2d 1282 (5th Cir. 1977). Under general
principles of res judicata a plaintiff who could not have
brought an action or was prevented from relying upon a
certain theory in his first action may be permitted to split
his claim and maintain a second lawsuit. Howard v. Green,
555 F.2d 737 (8th Cir. 1977). Hence, using accepted res
judicata principles, the Follettes would be allowed to pur-
sue their UCC claim.

In summary and for each of these additional reasons,
this case simply does not provide appropriate circum-
stances for certio ari review.

+

CONCLUSION

Res judicata is a sound doctrine and is in no danger of
being thwarted through the application of state law to
successive diversity suits, particularly as in this case.
Indeed, res judicata will continue to be a useful and strong
doctrine even in the face of an occasional and just excep-
tion to the general rule against claim preclusion. Accord-
ingly, the decision of the Eighth Circuit and the facts of
this case do not create a conflict with decisions of other
circuit courts of appeals as to justify certiorari review

10

by this Court. Respondents request that this Petition for a

Writ of Certiorari be denied.

OF COUNSEL:

ALFRED E. “Tom”
THompson, III

Murpny, Post, THOMPSON,
ARNOLD & SKINNER

255 East College Street

Batesville, Arkansas
72503-2595

Rosert Levy
P. O. Box 777
Ruston, Louisiana 71270

Respectfully submitted,

James A. RASMUSSEN

Counsel of Record

Gary SOUTHARD

JOHNSON & ASSOCIATES

P.O. Box 8185

1101 Scott Ave., Suite 17

Wichita Falls, Texas
76307-8185

(817) 761-3344

FAX (817) 761-3355

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1836%3A2. Public record. Not legal advice.