Opposition Brief — Jaques Admiralty Law Firm v. ACandS, Inc.
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No. 96-1940
In The
Supreme Court of the United States
October Term, 1996
*
THE JAQUES ADMIRALTY LAW FIRM,
Petitioner,
V.
FEL-PRO INCORPORATED,
FELT PRODUCTS MFG. CO., et al.,
Respondents.
+
On Petition for Writ of Certiorari to the
United States Court of Appeals for the Ninth Circuit
.
BRIEF IN OPPOSITION TO
PETITION FOR WRIT OF CERTIORARI
+
Marc L. Fleischaker Counsel for Respondents
Donald C. McLean * Fel-Pro Incorporated and
Laurel A. Bedig Felt Products Mfg. Co.
Rachel G. Lattimore
ARENT FOX KINTNER PLOTKIN & KAHN
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036-5339
(202) 857-6000 * Counsel of Record
QUESTION PRESENTED
Whether the Ninth Circuit Court of Appeals
properly imposed sanctions pursuant to the version of
Rule 38 of the Federal Rules of Appellate Procedure in
effect at the time the Petitioner’s sanctionable conduct
and the briefing of the case occurred.
RULE 29.6 STATEMENT
This brief in opposition is filed on behalf of Fel-Pro
Incorporated ("Fel-Pro") and Felt Products Mfg. Co. ("Felt
Products"). Fel-Pro and Felt Products are not publicly held
corporations or publicly held entities. Neither Fel-Pro nor
Felt Products is a parent, subsidiary, or affiliate of, or a
trade association representing, a publicly held corporation
or other publicly held entity. Fel-Pro and Felt Products
are not related to or affiliated with any publicly held
corporations or entities which have a direct financial
interest in the outcome of this case.
PARTIES TO THE PROCEEDING
The Respondents
Fel-Pro Incorporated and
Felt Products Mfg. Co.
The Petitioner
The Jaques Admiralty Law Firm
The plaintiff-appellants:
Norman D. Abar, et al. and Creighton E. Miller,
Administrator for the Estate of Isaac W. Abraham,
et al.
The defendant-appellees:
AC&S, Inc.
Alfred Conhagen Inc.
The Anchor Packing Company & Coltec Industries Inc.
=F
Aurora Pump Division of General Signal Corp.
The B.F. Goodrich Company
Champion International Corporation
Coffin Turbo Pump, Inc.
Durabla Manufacturing Company
Elliot Company
Everlasting Valve Company
Excelsior, Inc.
Fel-Pro Incorporated
Felt Products Mfg. Co.
The Flintkote Company
General Cable Corporation
The Goodyear Tire & Rubber Company
Green Tweed & Co.
The Home Rubber Company
Indian Head Industries, Inc.
Ingersoll-Dresser Pump Company
James Walker Manufacturing Company
Mortel] Company
Norton Company
The Okonite Company
Owens-Corning Fiberglas Corporation
Owens-Illinois, Inc.
PPG Industries, Inc.
Pittsburgh Corning Corp.
Plibrico Co.
Quaker Construction Products, Inc.
The Sherwin-Williams Company
USX Corporation
Vellumoid Inc.
Viking Pump, Inc.
Warren Pumps Inc.
- ili -
TABLE OF CONTENTS
Page
QUESTION PRESENTED .....................
RULE 29.6 STATEMENT .................0.-- i
PARTIES TO THE PROCEEDING ............... i
TABLE OF AUTHORITIES ................... vii
OPINIONS BELOW ....................0-0--
STATUTES AND OTHER PROVISIONS INVOLVED . |!
SEAT EGmINS GR TR CASS ook cei cc weace. 2
REASONS FOR DENYING THE WRIT ........... 8
I. THE NINTH CIRCUIT COMPLIED WITH THE
VERSION OF RULE 38 OF THE FEDERAL
RULES OF APPELLATE PROCEDURE IN
EFFECT DURING THE RELEVANT TIME
PRS 6 CR Ad eae ee MEARE RS Ek es 8
A. The Version of Fed. R. App. P. 38 in
Effect at the Time of Petitioner’s
Sanctionable Conduct and Throughout
the Briefing Phase of the Appeal Did
Not Require Separate Notice or an
Opportunity To Respond. ............ 9
- iV -
TABLE OF CONTENTS - continued
Page
B. The Ninth Circuit Did Not Abuse
Its Discretion in Applying the
Earlier Version of Rule 38........__. 12
3 It Was Not “Just and
Practicable” To Apply the
Amended Version of Rule 38
to Petitioner’s Frivolous
WS ees soa eae ea 12
ya The Ninth Circuit’s Application
of the Earlier Version of Rule
38 Was an Exercise of Common
vee ee re Pee 15
Il. PETITIONER HAS FAILED TO SHOW
ANY REASON FOR THIS COURT TO
GRANT A WRIT OF CERTIORARI TO
THE NINTH CIRCUIT................__ 17
A. The Ninth Circuit’s Decision
Comports with Similar Discretionary
Determinations Made by Other
so Te es ee 18
B. This Case Presents No Departure from
Prior Ninth Circuit We cots nen oa 20
... Petitioner Seeks Only To Delay —
Not To Oppose — the Imposition of
I kes deo te Sie ae
TABLE OF CONTENTS - continued
Page
I. DUE PROCESS WAS NOT DENIED
BECAUSE PETITIONER HAD ADEQUATE
NOTICE AND REASONABLE OPPORTUNITY
TO RESPOND TO THE IMPOSITION OF
5 i a ry A
A. Petitioner Ignored the Threat of
Sanctions from Several Sources. ...... 23
B. The Ninth Circuit Complied with the
Spirit of the Amended Rule 38 and
Accorded Petitioner Sufficient Due
PL 4 SO a a Oe obs CaS Bee 26
CONCLUSION 28
o Vi -
TABLE OF AUTHORITIES
CASES
83 F.3d 426 (table), 1996 WL 183752.
1996 U.S. App. LEXIS 9900
(9th Cir. Apr. 16,1996) ......000 od
Abar v. ACandS, Inc.. No. 94-55624
(9th Cir. Apr. 16,1996) ..........00 Passim
Abbey v. ACandS, Inc.. No. C-93-2813 MHP
(N.D. Cal. Sept. 27, POS OSs Peat ot to, 24
Abdullah v. ACandsS, Inc. , 30 F.3d 264 (1st Cir. 1994) ..25
Acevedo v. ACandS. Inc., No. 93-0629-AH-S
(S.D. Ala. Oct. 28, 1993) PP eee eewe ee ee
Agretti v. ANR Freight System, Inc., No. 89 C 5492,
1994 WL 46670, 1994 U.S. Dist. LEXIS 1433
(N.D. Ill. Feb. 7, Re toca ee A 16, 17
Aguilar v. Sunland Beef Co., 89 F.3d 844 (table),
1996 WL 218188, 1996 U.S. App. LEXIS 11049
(9th Cir. Apr. 29. ania: te eT aCe 21
In re Allustiarte, 62 F.3d 1425 (table), 1995 WL 460407.
1995 U.S. App. LEXIS 22468
(9th Cir. Aug. 3,1995) 2.0... 21
In re American Continental Corp., 102 F.3d 1524
ian, STE eT ee 21
- Vii -
In re Becraft, 885 F.2d 547 (9th Cir. 1989) ........... 24
Brown vy. ACanasS, Inc., No. 2:93-1274
i5te, 3 er eee 25
Carroll v. Jaques Admiralty Law Firm, 110 F.3d 290
be A) ee ee ee re eee ery ee 25
Clark v. Central Cartage Co., 73 F.3d 361 (table),
1995 WL 758459, 1995 U.S. App. LEXIS 38820
Ee Gtk: BO ROD . ke cs en a UA a ark oe 19
In re Del Mission Ltd., 98 F.3d 1147 (9th Cir. 1996) .... 21
Fordjour v. Forties Benefits Insurance Co.,
57 F.3d 1076 (table), 1995 WL 341562,
1995 U.S. App. LEXIS 14446
‘oe we By Sree ree 21
Gabor v. Frazer, 78 F.3d 459 (9th Cir. 1996) ......... 21
In re Generes, 69 F.3d 821 (7th Cir. 1995),
cert. denied, 117 S. Ct. 81 (1996) ............. 16
Hatch v. Reliance Insurance Co., 758 F.2d 409 (9th Cir.),
cert denied, 474 U.S. 1021 (1985) ......... 10, 24
Hill v. Norfolk and Western Railway Co.,
lg Be. ae, oo 3D. ¢ sr 1]
Hoefler v. Caesars Tahoe, 15 F.3d 1085 (table),
1994 WL 28354, 1994 U.S. App. LEXIS 2420
Le Re | ae ee eee 27
- Vill -
Hyde v. Van Wormer, 474 U.S. 992 fe l]
Julien v. Zeringue, 864 F.2d 1572 (Fed. Cir.),
cert. denied, 493 U.S. 917 CE0e) ............. 28
K & T Enterprises, Inc. y. Zurich Insurance Co..
97 F.3d 171 (6th Cir. EG Sere es eS 20
Landgraf v. USI Film Products,
S11 U.S. 244 (1994) 20 15, 16
in re Lund, 83 F.3d 427 (table), 1996 WL 183658.
1996 U.S. App. LEXIS 9756
(9th Cir. Apr. 12,1996) ...... opp 21
MacDraw, Inc. v. CIT Group Equipment F inancing,
73 F.3d 1253 (2d Cir. GOS orin cous oes. 16
Matter of Bero, 110 F.3d 462 (7th Cir.1997) ....... 19
McConnell v. Critchlow, 661 F.2d 116 (9th Cir. 1981) .. 24
McDonough v. Royal Caribbean Cruises, Ltd,
48 F.3d 256 (7th Cir. icy a rn 20
Miller v. ACandS Inc., No. 94-55677
(9th Cir. Apr. 16, i nD Passim
Morrissey y. Brewer, 408 U.S. 47] is: Oar 28
Nordberg, Inc. y. Telsmith, 82 F.3d 394
dated in| ee 19
- 1X-
Payne v. Exxon Corp., 73 F.3d 370 (table),
1995 WL 766016, 1995 U.S. App. LEXIS 38376
ee te. Ge en are 21
In re Perry, 918 F.2d 931 (Fed. Cir. 1990) ............ 10
Regal Capital, Inc. v. Valencia, 106 F.3d 408 (table),
1997 WL 31139, 1997 U.S. App. LEXIS 1105
oe Me ; Ga eee 21
Romala Corp. v. United States, 927 F.2d 1219
CE Se SOE as a eee es keke ceeds 10, 11
In re Rudnick, 62 F.3d 1423 (table), 1995 WL 460360,
1995 U.S. App. LEXIS 22469
ee eo ee eee ee 21
Schroeder v. K & K Insurance Group, Inc.,
70 F.3d 1274 (table), 1995 WL 687663,
1995 U.S. App. LEXIS 34004
Ce Se I 8a ees Oa eee sees eos 19
Shiloh v. Reader’s Digest Association Inc.,
62 F.3d 1425 (table), 1995 WL 465774,
1995 U.S. App. LEXIS 22927
oo ge ee Sree eee ae 21
Silva v. Witschen, 19 F.3d 725 (1st Cir. 1994) ......... 16
Simmons v. Allstate Life Insurance Co., 65 F.3d 526
Ce See i kicks cow evreCeuear es 14, 18, 20, 27
Smith v. Ricks, 3] F.3d 1478 (9th Cir. 1994),
cert. denied, 115 S. Ct. 1400 (. :) 10, 24
In re Sovereign Partners, 110 F.3d 70 (table),
1997 WL 160279, 1997 U.S. App. LEXIS 6598
(9th Cir. Apr. 4, Jinigisi Ae ee een 21
I.G.C. Corp. v. Park, 1997 WL 234614.
1997 U.S. App. LEXIS 10637
(6th Cir. May6,1997) 200 19
Toepfer v. Department of Transportation.
792 F.2d 1102 (Fed. Cir. Ree 10, 11
Ullman-Briggs, Inc. v. Deerfield Housewares, Inc..
100 F.3d 942 (table), 1996 WL 20512,
1996 U.S. App. LEXIS 2435
(2d Cir. Jan. 19,1996) 2... 19
In re Wall, 108 F.3d 340 (table), 1997 WL 74470.
1997 U.S. App. LEXIS 3139
(9th Cir. Feb. 18,1997)... 2]
STATUTES
WO i 2
Oe Br Ye es: 6
Fed. R. Civ. P. 8(@)(1) oo... 4,5
Fed. R. Civ. P. 8(a)(2) 2. 4,5
- Xj] -
Pe Oe ee vee ee see reese soe ws Kaen Semen
Pe ae apes ae ho koa aya a eupaeuans +
PO ae ea SEED voc vesnse cu ctccnscaveew Gu
Kk Ee re ree ree eer ane passim
Fed. R. App. P. 38 (amended 1994) ............. passim
IRENE co basa cade teen sen resent ia 17, 18, 20
MISCELLANEOUS
Communication from the Chief Justice,
the Supreme Court of the United States,
Transmitting Amendments to the Federal Rules of
Appellate Procedure, H.R. Doc. No. 247,
103d Come., 26 Seas. 1 C19PS) ...........6....2, 3
OPINIONS BELOW
The Ninth Circuit's decision that affirmed the
District Court's dismissal and imposed sanctions in Abar
v. ACandS, Inc., No. 94-55624 (9th Cir. Apr. 16, 1996)
(hereafter "Abar"), and Miller v. ACandS, Inc., No. 94-
55677 (9th Cir. April 16, 1996) (hereafter Miller"), is
listed as a “table case” at 83 F.3d 426 (9th Cir. 1996).
That decision is reported unofficially at 1996 WL 183752
and 1996 U.S. App. LEXIS 9900. (Pet’r App. 1-6.) The
remaining orders of the Ninth Circuit and the orders of
the Ninth Circuit's Appellate Commissioner are unreported.
(Pet’r App. 7-8, 22-46, 78.)
The opinions of the District Court are unreported.
(Resp’ts App. 10ra-17ra, 25ra-28ra; Pet’r App. 47-53.)
STATUTES AND OTHER PROVISIONS INVOLVED
Fed. R. App. P. 38 (amended 1994), as in effect
at the time of Petitioner's frivolous appeal to the Ninth
Circuit and Respondents’ opposition thereto, provided:
If a court of appeals shall determine that an appeal
is frivolous, it may award just damages and single
or double costs to the appellee.
Fed. R. App. P. 38 was subsequently amended in
1994 to provide:
If a court of appeals determines that an appeal is
frivolous, it may, after a separately filed motion or
notice from the court and reasonable opportunity to
respond, award just damages and single or double
costs to appellee.
Through the Chief Justice's Communication
transmitting the 1994 amendment to Fed. R. App. P.
38 to Congress (Resp’ts App. lra-5ra), this Court ordered,
in pertinent part:
2. That the foregoing amendments to the Federal
Rules of Appellate Procedure [including that to
Rule 38] shall take effect on December 1, 1994,
and shall govern all proceedings in appellate
cases thereafter commenced and, insofar as just and
practicable, all proceedings in appellate cases then
pending.
The actions giving rise to the Petition for Wnt
of Certiorari were originally filed in the District Court.
STATEMENT OF THE CASE
The Miller and Abar actions underlying this dispute
were initiated in the United States District Court for the
Southern District of California on July 27, 1993, pursuant
to the admiralty provisions of Article III, section 2 of the
Constitution, and based upon diversity of citizenship under
28 U.S.C. § 1332. The Abar action was filed on behalf of
994 plaintiffs against 93 defendants. More than 20 pages
of the 26-page complaint were required to list the names of
the 994 plaintiffs and 93 defendants. The allegations of
these 994 plaintiffs were set forth in just four pages of the
complaint. The Miller action was filed on behalf of the
alleged administrator of the estates of 370 decedents
against the same 93 defendants. More than eight pages of
the 14-page complaint were required to list the names of
the 370 plaintiffs and 93 defendants. Again, the plaintiffs’
allegations were set forth in just over four pages of
the complaint.’
Both complaints alleged that the defendants
manufactured, sold, or supplied “harmful toxins and
carcinogens including asbestos and asbestos-containing
products” for use aboard vessels and asserted Claims for
personal injuries arising from plaintiffs’ alleged exposure
to “the aforestated chemicals and products.” (Resp’ts App.
42ra.)
In August 1993, defendants Fel-Pro Incorporated
and Felt Products Mfg. Co. (hereinafter collectively
referred to as “Fel-Pro” and/or “Respondents”) filed a
motion to dismiss the complaints in both the Miller and
Abar actions. Thereafter, several additional defendants
adopted Fel-Pro's motions and supporting memoranda or
filed their own motions to dismiss 2
On September 9, 1993, the District Court issued
Orders to Show Cause in Miller and Abar, setting a
hearing at which plaintiffs’ counsel, Petitioner herein,
would be required to show cause why the cases should be
4 Except for the names of the plaintiffs, the complaint filed in Abar is
virtually identical to the complaint filed in Miller, which is included
herein at Resp’ts App. 29ra-45ra.
~ Respondents’ motions identified numerous deficiencies in plaintiffs’
complaints, including: (1) the failure to establish a basis for subject
matter jurisdiction over the claims asserted against the defendants;
(2) the failure to establish a basis for personal jurisdiction over the
defendants; (3) the failure to provide sufficient factual information to
give defendants adequate notice of the claims against them and the
grounds for the plaintiffs’ claims: and (4) the improper joinder of 994
plaintiffs in Abar and 370 decedents in Miller.
ee
docketed in that court. (Resp’ts App. 25ra-28ra.) In
its Orders, the District Court found that the complaints
presented “serious questions regarding not only the
jurisdiction of this Court, but whether this Court has
any connection with the claims and whether there has been
compliance with the Federal Rules of Civil Procedure.”
(Resp’ts App. 25ra, 27ra.) Following the show cause
hearing, which took place on November 1, 1993, the
District Court directed the plaintiffs to respond to the
Show Cause Orders and the motions to dismiss filed by
Respondents and other defendants.
On January 18, 1994, the District Court issued an
Order which dropped the claims of all but the first-named
plaintiff, Norman D. Abar, in the Abar case and the claims
of the estates of all but the first-named decedent, Isaac W.
Abraham, Sr., in the Miller case on the ground that they
were improperly joined under Rule 20 of the Federal Rules
of Civil Procedure. (Pet’r App. 47-53.) The District Court
stated that its Order was without prejudice to any of the
993 dropped plaintiffs or the representatives of any of the
369 dropped decedents filing amended complaints as long
as they “satisf[ied] the jurisdictional, pleading, and venue
requirements of federal law and the Federal Rules of
Civil Procedure.” (Pet’r App. 50-51.)
The District Court then dismissed the complaints as
to the first-named and remaining plaintiff in each case for
failure to comply with the requirements of Fed. R. Civ. P.
8(a)(1) and 8(a)(2). The District Court concluded that the
~ Although the Abar case was initially assigned to a different judge, it
was subsequently reassigned to District Judge John S. Rhoades, Sr.,
who already had been assigned to the Miller case. The Miller and
Abar cases were later considered by the District Court jointly.
+
complaints failed to Satisfy the requirements of Rule
8(a)(1) because they did not provide a factual basis for the
assertion of admiralty jurisdiction. (Pet’r App. 52.) The
District Court also held that the complaints failed to meet
the threshold requirement of Rule 8(a)(2) that a pleader
must set forth a short and plain statement of the claim
showing that the pleader is entitled to relief # (Pet’r
App. 52-53.)
On January 31, 1994, the plaintiffs in both actions
filed a Motion for Relief from Judgment of Dismissal,
pursuant to Fed. R. Civ. P. 60(b)(6), in which they asserted
that the District Court should reverse its order dismissing
their claims because the statute of limitations would
otherwise bar their claims against the named defendants.
In their motion, the plaintiffs also requested the transfer
of their dismissed claims to the U.S. District Court for the
Northern District of Ohio.
On March 14, 1994, the District Court issued an
Order denying plaintiffs' motion on the ground that Rule
60(b)(6) did not apply to the January 18, 1994 Dismissal
Order because it was a nonappealable interlocutory order.
(Resp’ts App. 10ra-17ra.) The District Court also
concluded that even if Rule 60(b)(6) did apply to the
January 18, 1994 Order, plaintiffs had not shown the
existence of the type of “extraordinary circumstances”
required under the Rule that would entitle them to the
* The January 18, 1994 Order gave first-named plaintiffs Abar and
Miller 21 days’ leave to amend their complaints to comply with the
requirements of the Federal Rules of Civil Procedure. (Pet’r App. 53.)
There is no indication in the record, however, that either plaintiff has
ever filed or attempted to file an amended complaint in compliance
with the District Court's Order.
=
relief requested.* (Resp’ts App. 15ra.) A month later,
on April 14, 1994 in Miller and April 15, 1994 in Abar,
Petitioner filed with the Ninth Circuit Notices of Appeal
from the District Court's Order denying the Motion for
Relief from Judgment.
Plaintiffs filed their appellate briefs with the
Ninth Circuit on September 1, 1994, and Fel-Pro filed
its opposition briefs on September 28, 1994. Defendant-
appellee Owens-Illinois, Inc. filed separate opposition
briefs which contained a request for sanctions on
October 3, 1994. (Pet’r App. 55, 62.) Plaintiffs' reply
oriefs, filed on November 1, 1994, did not address the
issue of sanctions. In the appeal, plaintiffs contended
that the District Court erred in dismissing the complaints
and in refusing to transfer the dismissed actions to the U.S.
District Court for the Northern District of Ohio.
By Memorandum of April 16, 1996, the Ninth
Circuit Court of Appeals upheld the District Court's
decision and, in the process, found plaintiffs' appeal to
be “frivolous.” (Pet’r App. 6.) In so finding, the Ninth
Circuit noted that motions for relief under Rule 60(b) are
reviewed for abuse of discretion only; the underlying
judgment is not subject to review. (Pet’r App. 4.)
Plaintiffs’ appeal merely repeated their legal arguments
* The District Court also denied plaintiffs’ transfer request on the
grounds that there were no causes of action to transfer since the
complaints had been dismissed and because the plaintiffs had failed to
establish a basis for transfer under 28 U.S.C. § 1404(a). (Resp’ts App.
16ra.)
© Plaintiffs’ initial opening appellate briefs, filed on August 16, 1994,
were rejected by the Ninth Circuit as a result of Petitioner’s violation
of several Ninth Circuit procedural rules.
~ -
made out below, and the Ninth Circuit found that the
plaintiffs did not demonstrate any “extraordinary
circumstances” which prevented plaintiffs from seeking
more timely relief, such as filing a direct appeal. (Pet’r
App. 4.) Indeed, the appellate court noted that prior Ninth
Circuit law had specifically rejected the type of
“extraordinary circumstance" put forth by plaintiffs in
support of their claim for Rule 60(b)(6) relief. (Pet’r App.
4-5.) The Ninth Circuit also found that the District Court
did not abuse its discretion in refusing to grant plaintiffs’
request for transfer because the cases had been dismissed
and, therefore, there were no cases left to transfer. (Pet’r
App. 5-6.) Furthermore, as a result of the frivolous nature
of the appeal, the Ninth Circuit awarded sanctions against
the plaintiffs’ attorney, Petitioner herein, for attorneys’ fees
and double costs and directed the Ninth Circuit Appellate
Commissioner to “determine the amount of sanctions to be
awarded each defendant.” (Pet’r App. 6.)
Petitioner challenged the Ninth Circuit's award of
Sanctions in a Motion to Vacate Summary Imposition of
Rule 38 Sanctions, or, in the Alternative, for Statement
of Reasons and Opportunity to Respond, alleging that the
Ninth Circuit's failure to comply with the amended version
of Fed. R. App. P. 38 violated its due process xights.
(Pet’r App. 69.) The Ninth Circuit denied the Motion to
Vacate on June 7, 1996. (Pet’r App. 77.)
The Ninth Circuit's Appellate Commissioner filed
an Order quantifying the amount of sanctions on
September 16, 1996. (Pet’r App. 22.) Two weeks later,
on September 30, 1996, Petitioner moved for
reconsideration of portions of that award, but included no
mention of Petitioner's previous Rule 38 Challenge. (Pet’r
App. 9.) The Ninth Circuit denied Petitioner's motion for
x
reconsideration on March 6, 1997, and Petitioner now
bases the timeliness of its Petition for a Writ of Certiorari
upon that denial of reconsideration. (Pet’r App. 7.)
REASONS FOR DENYING THE WRIT
:. THE NINTH CIRCUIT COMPLIED WITH
THE VERSION OF RULE 38 OF THE
FEDERAL RULES OF APPELLATE
PROCEDURE IN EFFECT DURING THE
RELEVANT TIME PERIOD.
On the days that Petitioner filed the notices of its
frivolous appeal with the Ninth Circuit — April 14 and 15,
1994 — the pre-amendment version of Fed. R. App. P. 38
was in effect. Indeed, on the dates that Petitioner filed
its opening appellate briefs (September 1, 1994),
Respondents filed their opposition briefs (September 28,
1994), and defendant-appellee Owens-Illinois, Inc. filed
opposition briefs that included an unequivocal request that
Petitioner be sanctioned pursuant to Rule 38 (October 3,
1994), the pre-amendment version of Rule 38 was in
effect. The earlier version of Rule 38 was also in effect on
November 1, 1994, when Petitioner, ignoring the request
for sanctions, completed the briefing of its frivolous appeal
by filing reply briefs. Thus, all of Petitioner’s sanctionable
conduct involving the filing and briefing of its frivolous
appeal took place prior to the December 1, 1994 effective
date of the amendment to Rule 38.
During the time of Petitioner’s sanctionable conduct
and the briefing of that appeal, separate notice and an
opportunity to respond prior to the imposition of sanctions
were not required by the Federal Rules of Appellate
Procedure, but were merely discretionary with the circuit
-
courts. The Ninth Circuit exercised its sound discretion
not to require separate notice and hearing when the
frivolous appeal was filed — and a then proper request
for sanctions was made — before the new requirements
went into effect.
A. The Version of Fed. R. App. P. 38 in
Effect at the Time of Petitioner’s
Sanctionable Conduct and Throughout
the Briefing Phase of the Appeal Did
Not Require Separate Notice or an
Opportunity To Respond.
Rule 38 of the Federal Rules of Appellate
Procedure authorizes an appellate court to impose sanctions
in the form of attorneys’ fees and costs against a party,
like Petitioner, that has filed a frivolous appeal. Fed. R.
App. P. 38.
An amendment to the Rule, effective December 1.
1994, now requires a separately filed motion for sanctions
or notice from the court and an Opportunity to respond
before sanctions may be imposed. Jd. The earlier version
of the Rule was more expansive and required no such
special notice or opportunity to respond. It provided that
“[i]f a court of appeals shall determine that an appeal is
frivolous, it may award just damages and single or double
costs to the appellee.” Fed. R. App. P. 38 (amended
1994).
Prior to the 1994 amendment to Rule 38, an
appellate court could, in its sound discretion, impose
sanctions for a frivolous appeal either sua sponte or upon
a request by the appellee made in that party's opposition
to the appeal. "[D]amages are awarded by the court in its
-9.
discretion in the case of a frivolous appeal as a matter
of justice to the appellee and as a penalty against the
appellant." Fed. R. App. P. 38 advisory committee’s note
to 1967 adoption. See also, Hatch v. Reliance Ins. Co.,
758 F.2d 409, 416 (9th Cir.) (sanctions need not be sought
to be awarded), cert. denied, 474 U.S. 1021 (1985). Prior
to the 1994 amendment, no separate notice was required
before Rule 38 sanctions could be imposed; the mere
existence of Rule 38 and precedential case law imposing
the Rule were found to provide adequate notice to satisfy
due process. In Romala Corp. v. United States, 927 F.2d
1219 (Fed. Cir. 1991), the Federal Circuit stated:
Nor does due process require any specific notice or
opportunity for additional briefing or a hearing
prior to imposition of Rule 38 sanctions under the
circumstances presented here. The due process
requirement of adequate notice is satisfied by the
elementary principle that “practitioners in this
court are expected to know and follow the Federal
Rules of Appellate Procedure and the precedents in
the court's published jurisprudence,” including Rule
38 and our lengthy line of decisions applying it in
appropriate cases.
927 F.2d at 1226 (citing In re Perry, 918 F.2d 931, 935
(Fed. Cir. 1990)).
Moreover, prior to the 1994 amendment to Rule 38,
an opportunity to respond was not required before
sanctions could be imposed for a frivolous appeal. Smith
v. Ricks, 31 F.3d 1478, 1489 (9th Cir. 1994) (imposing
sanctions without separate hearing), cert. denied, 115 S. Ct.
1400 (1995); Toepfer v. DOT, 792 F.2d 1102, 1103 (Fed.
Cir. 1986) (to require hearing for assessment of damages
_
pursuant to Rule 38 “would impose on the opposing party
and on the court an even greater burden in dealing with a
frivolous appeal and entirely defeat the purpose of Rule
38").
The Seventh Circuit in Hill v. Norfolk and Western
Railway Co., 814 F.2d 1192 (7th Cir. 1987), took pains to
explain why an opportunity for written or oral explanation
was not necessary:
Where, as in this and most Rule 38 cases, the
conduct that is sought to be sanctioned consists
of making objectively groundless legal arguments
in briefs filed in this court, there are no issues
that a hearing could illuminate. All the relevant
“conduct” is laid out in the briefs themselves:
neither the mental state of the attorney nor any
other factual issue is pertinent to the imposition
of sanctions for such conduct.
Hill, 814 F.2d at 1201 (emphasis added). Accord, Romala
Corp., 927 F.2d at 1226-27. See also, Toepfer v. DOT,
792 F.2d at 1103 (Fed. Cir. 1986) (citing Hyde v. Van
Wormer, 474 U.S. 992 (1985), in which this Court awarded
damages under its Rule 49.2 without a hearing).
Based on the foregoing, it is clear that at the time
Petitioner filed and briefed its frivolous appeal, Rule 38
affordcd Petitioner no right to notice or an opportunity to
respond prior to the imposition of sanctions by the Ninth
Circuit. Any due process requirements for notice were met
by the actual existence of Rule 38 and Petitioner's
obligation to know the Rules, the actual notice in Owens-
Illinois’ briefs, and, as set out infra at Section IIL.A..
the fact that Petitioner had been warned about similar
«Mtn
sanctionable conduct by other courts. Any due process
requirements for an opportunity to respond were likewise
met because Petitioner had a chance to reply to the
demand for sanctions which were plainly requested in the
Owens-Illinois’ briefs, but did not.
B. The Ninth Circuit Did Not Abuse Its
Discretion in Applying the Earlier
Version of Rule 38.
1. It Was Not “Just and Practicable”
To Apply the Amended Version of
Rule 38 to Petitioner’s Frivolous
Appeal.
Petitioner failed to advise this Court in its petition
that the version of Rule 38 in effect at the time of
Petitioner’s frivolous appeal did not require separate notice
Or an opportunity to respond before the Ninth Circuit could
impose sanctions. In fact, Petitioner simply assumes that
amended Rule 38 automatically applied to all matters
pending on the date of its implementation. This
assumption is, however, incorrect. In its transmission
to Congress of the 1994 Amendment of Rule 38, this Court
ordered:
2. That the foregoing amendments to the Federal
Rules of Appellate Procedure [including Rule 38]
shall take effect on December 1, 1994, and shall
govern all proceedings in appellate cases thereafter
«80s
commenced and, insofar as just and practicable, all
proceedings in appellate cases then pending.”
Thus, pursuant to this Court’s clear instructions. the
Ninth Circuit was not required to apply the 1994
amendment to Rule 38 to the pending appeal in Miller and
Abar. Instead, absent a determination by the appellate
court that application of the amended Rule would be “just
and practicable,” the prior version of Rule 38 was properly
applied to the pending appeal.
Petitioner has failed to make any showing that
application of the amended version of Rule 38 to its
frivolous appeal would be just and practicable. Nor
could such a showing be made. There was no just reason
to apply the amended Rule when all of Petitioner’s conduct
giving rise to the imposition of sanctions took place prior
to the effective date of the amendment. Similarly, there
was no just reason to apply amended Rule 38 to this case
when, as set forth infra at Section II.A.. Petitioner was
on notice from numerous federal courts that the filing of
claims virtually identical to the claims that were the
Subject of this appeal was frivolous and/or sanctionable.
Moreover, it was not practicable to apply the amended
version of the Rule when all briefing by the parties in
the Miller and Abar appeal had been concluded well before
the effective date of the amendment. Thus, it was not
~ See Communication from the Chief Justice, the Supreme Court of the
United States, Amendments to the Federal Rules of Appellate
Procedure, H.R. Doc. No. 247, 103d Cong., 2d Sess., 1 (1994) (the
relevant portions of which are included herein at Resp’ts App. Ira-5ra)
(emphasis supplied).
~ Indeed, Petitioner has failed to even address the "just and
practicable” requirement in its petition.
— -
“yust and practicable” for the Ninth Circuit to apply
the amended version of Rule 38 to Petitioner’s appeal.
Indeed, under the circumstances presented here, application
of the amended Rule would have worked an injustice upon
Respondents and the other defendants by forcing them to
incur more expense in defending Petitioner’s claim that
its frivolous appeal was not sanctionable and more delay
in receiving the attorneys’ fees and costs to which they
are entitled.
A single appellate case has discussed whether
imposition of the amendment to Rule 38 on a pending
appeal that had been fully briefed prior to the effective
date of the amendment was appropriate. Simmons v.
Allstate Life Ins. Co., 65 F.3d 526 (6th Cir. 1995).
In Simmons, as in Miller and Abar, the appellate court
imposed sanctions after the effective date of Rule 38’s
amendment for the filing of a frivolous appeal that took
place prior to the effective date of the amendment. As
in Miller and Abar, appellee’s brief contained a request
for sanctions, but there had been no separately filed motion
or notice from the court.
The Simmons court found that the reply brief,
which responded to the request for sanctions, evidenced the
appellant's notice of the request. Consequently, the court
held that separate notice and an opportunity to respond was
not necessary before sanctions could be imposed. Jd. at
531.
In this case, Petitioner was also on notice of the
Ninth Circuit's consideration of sanctions through
defendant-appellee Owens-Illinois’ requests for sanctions
in its briefs. (Pet’r App. 58-59, 65-66.) Petitioner's
failure to respond to those requests for sanctions should
-
——————
not be made the basis for according it yet another
Opportunity to forestall the imposition of sanctions.
2. The Ninth Circuit’s Application of
the Earlier Version of Rule 38 Was
an Exercise of Common Sense.
The Ninth Circuit's imposition of the unamended
Rule 38 was an exercise of common sense applied to the
facts of a particular case, an exercise in discretion
approved by this Court. “Our orders approving
amendments to federal procedural rules reflect the common
sense notion that the applicability of such provisions
ordinarily depends on the posture of the particular case.”
Landgraf v. USI Film Prods., 511 U.S. 244, 275 n.29
(1994) (citing the “just and practicable” language that
usually accompanies this Court's Orders amending Federal
Rules).
In Landgraf, the issue was whether a substantive
amendment to the Civil Rights Act of 1991 should apply
to cases arising before its enactment where the statute
was silent as to retroactivity. In discussing the general
prescription against statutory retroactivity, this Court
also commented about the retroactivity of procedural rules.
Specifically, this Court stated that “the mere fact that
a new rule is procedural does not mean that it applies to
every pending case.” Jd* Instead, this Court noted that
= As an example of a situation in which a new procedural rule would
not apply to a pending case, this Court stated that "[a] new rule
concerning the filing of complaints would not govern an action in
which the complaint had already been properly filed under the old
regime ...." Jd. Similarly, the amendment to Rule 38 should not
apply to cases like Miller and Abar where a request for sanctions had
been properly made under the earlier version of the Rule.
-15-
courts must employ a common sense approach in deciding
whether procedural changes should be applied to pending
cases. Jd. Thus, this Court has left determinations of
what constitutes a “just and practicable” application of
Rule changes to pending matters to the common sense of
each court. This common sense must, necessarily, be
applied on a case-by-case basis.
The common sense approach to the application of
new amendments to procedural Rules has been applied by
federal courts in other contexts. For example, the 1993
amendment to Federal Rule of Civil Procedure 11 was
introduced by this Court with similar “just and practicable”
language as that used to introduce the 1994 amendment to
Fed. R. App. P. 38. In determining which version of Rule
11 to apply to cases pending as of the effective date of
the amendment, courts used a common sense approach
which typically focused on the version of the Rule in
effect at the time of the sanctionable conduct. See, e.g.,
In re Generes, 69 F.3d 821, 826-27 (7th Cir. 1995)
(applying the former version of Rule 11 where initial brief
filed prior to amendments even though district court's
decision and motion for sanctions filed after effective
date), cert. denied, 117 S. Ct. 81 (1996); MacDraw, Inc. v.
CIT Group Equip. Fin., 73 F.3d 1253, 1257 (2d Cir. 1996)
(“Because the allegedly sanctionable conduct in this case
occurred prior to the effective date of the 1993
amendments, the district court was required to apply the
standard of conduct set forth in the pre-1993 Rule [11]");
Silva v. Witschen, 19 F.3d 725, 728 (ist Cir. 1994) ("[W]e
review the . . . sanction order under the pre-amendment
Rule 11 standards in force at the time the sanctioned
conduct occurred."); Agretti v. ANR Freight Sys., Inc., No.
89 C 5492, 1994 WL 46670, at *1, 1994 U.S. Dist. LEXIS
1433, at *2-3 (N.D. Ill. Feb. 7, 1994) (applying version of
Rule 11 in effect at the time of the sanctionable conduct).
Here, the Ninth Circuit applied its common sense
and exercised its discretion not to apply the 1994
amendment to its imposition of sanctions as to conduct that
occurred well before the effective date of the amendment
to Fed. R. App. P. 38. That decision was just and
practicable, and does not warrant review by this Court.
II. PETITIONER HAS FAILED TO SHOW
ANY REASON FOR THIS COURT TO
GRANT A WRIT OF CERTIORARI TO
THE NINTH CIRCUIT.
This Court is well aware of its own considerations
governing review on certiorari. See Sup. Ct. R. 10.
Despite Petitioner's assertions to the contrary, it has
presented no compelling reasons to justify this Court's
review. The Ninth Circuit's decision not to apply the
amended version of Rule 38 to the imposition of sanctions
in Miller and Abar creates no conflict among the circuits;
every appeal cited by Petitioner to justify such a conflict
was brought or briefed after the 1994 amendment was
implemented. Petitioner has failed to cite a single case
in which a circuit court required a separate motion for
sanctions where a request had been made during briefing
that was completed before the amendment went into effect.
Neither has Petitioner offered any other compelling reasons
to justify review. See Sup. Ct. R. 10. A decision by this
Court would affect no one but the parties involved and
would fail to serve the ends of justice in any way. Rather,
it would merely squander this Court's time and resources
while delaying the inevitable results of Petitioner's
frivolous conduct.
Ws
A. The Ninth Circuit’s Decision Comports
with Similar Discretionary Determinations
Made by Other Circuits.
The Ninth Circuit's decision to impose sanctions on
Petitioner's frivolous appeal of Miller and Abar created no
conflict among the circuits sufficient to justify review of
that decision by this Court. See Sup. Ct. R. 10% The
issue in this matter — whether a circuit court properly
exercised its discretion not to apply the 1994 amendment
to Fed. R. App. P. 38 to a case that had been appealed and
fully briefed prior to that amendment's implementation date
— has been reached by only one other circuit court. In
that action, Simmons v. Allstate Life Ins. Co., the Sixth
Circuit reached the same conclusion as the Ninth Circuit
did in Miller and Abar. Simmons, 65 F.3d at 531; see
supra Section I.B.1. In its attempt to create a conflict
where none exists, Petitioner has cited, either intentionally
or inadvertently, five cases appealed after the amendment's
implementation date when separate notice and opportunity
to respond were required. These cases are irrelevant to the
~ Sup. Ct. R. 10 provides:
Review on a writ of certiorari is not a matter of nght, but of
judicial discretion. A petition for a writ of certiorari will be
granted only for compelling reasons. The following, although
neither controlling nor fully measuring the Court's discretion,
indicate the character of the reasons the Court considers:
(a) a United States court of appeals has entered a decision in
conflict with the decision of another United States court of
appeals on the same important matter . . . or has so far
departed from the accepted and usual course of judicial
proceedings . . . as to call for an exercise of this Court's
supervisory power.
- 18 -
central issue in this case of whether the Ninth Circuit was
correct in imposing sanctions pursuant to the earlier
version of Rule 38, in effect at the time of Petitioner's
sanctionable conduct and at the time during which the
appeal was briefed +!
The remaining three cases on which Petitioner bases
its allegation of a conflict among circuits are also
immaterial to a review of the propriety of the Ninth
Circuit's decision in Miller and Abar. In each of these
cases, courts applied the 1994 amendment to Fed. R. App.
P. 38 to appeals filed prior to the amendment's effective
date. In two of those cases, however, briefing had not yet
been completed by December 1, 1994, and so the parties
were not prejudiced by application of the amendment. In
one of those cases, Clark v. Central Cartage Co., the Sixth
Circuit specifically stated that it did not apply the
unamended version of Fed. R. App. P. 38 when briefing
had not been completed prior to the Amendment's
implementation. That court distinguished its prior decision
in Simmons: “Simmons is distinguishable from the case at
bar, because, in this case, the company [appellee] filed
its brief after amended Rule 38 became effective.” Clark,
73 F.3d 361 (table), 1995 WL 758459, 1995 U.S. App.
LEXIS 38820, at *9 (6th Cir. Dec. 21, 1995) (appellant
brief filed 1/25/95; appellee brief filed 2/24/95). See
See Ullman-Briggs, Inc. v. Deerfield Housewares, Inc., 100 F.3d 942
(table), 1996 WL 20512, 1996 U.S. App. LEXIS 2435 (2d Cir. Jan. 19,
1996) (No. 95-7827); T.G.C. Corp. v. Park, No. 96-5638, 1997 WL
234614, 1997 U.S. App. LEXIS 10637 (6th Cir. May 6, 1997); Matter
of Bero, 110 F.3d 462 (7th Cir. 1997) (No. 96-2828); Schroeder v.
K & K Ins. Group, Inc., 70 F.3d 1274 (table), 1995 WL 687663, 1995
U.S. App. LEXTS 34004 (7th Cir. Nov. 16, 1995) (No. 95-1148):
Nordberg, inc. v. Telsmith, 82 F.3d 394 (Fed. Cir. 1996) (No. 95-
1316).
- 19-
K & T Enters., Inc. v. Zurich Ins. Co., 97 F.3d 171 (6th
Cir. 1996) (applying Fed. R. App. P. 38’s 1994 amendment
to imposition of sanctions where appellate briefs first
filed on January 27, 1995). By contrast, in Miller and
Abar, as in Simmons, briefing of the case was finished by
the time the amended Fed. R. App. P. 38 became effective.
The last case cited by Petitioner was a Seventh
Circuit opinion requiring separate notice and opportunity
to respond for an appeal briefed prior to December 1,
1994, but that case is also irrelevant to the Ninth Circuit's
decision in Miller and Abar* Since February 1, 1992,
Seventh Circuit Rule 38 (as distinguished from Fed. R.
App. P. 38) has required separate notice and an opportunity
to respond prior to the imposition of appellate sanctions.
McDonough was docketed on July 27, 1994, and was thus
subject to Circuit Rule 38. In short, no other circuit has
acted differently than the Ninth Circuit under similar facts.
Rather, the Sixth Circuit, in Simmons, made the identical
decision. Quite simply, no conflict among the circuits
exists.
B. This Case Presents No Departure from
Prior Ninth Circuit Rulings.
Petitioner has also asserted that the imposition of
sanctions in Miller and Abar was unprecedented within the
Ninth Circuit; that the decision had so far departed from
that court's prior rulings so as to justify this Court's
supervision. See Sup. Ct. R. 10(a). In fact, all but one
of the appeals in the Ninth Circuit decisions cited by
Petitioner as support for this contention were — like the
+ McDonough v. Royal Caribbean Cruises, Ltd., 48 F.3d 256 (7th Cir.
1995).
oe.
appellate decisions Petitioner cited from other circuits —
also filed or briefed after the Fed. R. App. P. 38
amendment's implementation date~* Stripped of these
irrelevant cases, Petitioner's brief mentions — at the end of
a footnoted string cite — a single, unreported Ninth Circuit
opinion in which that court applied the amendment to Fed.
R. App. P. 38 to an action in which the briefing had been
completed before the amendment's implementation date. Jn
re Rudnick, 62 F.3d 1423 (table), 1995 WL 460360, 1995
U.S. App. LEXIS 22469 (9th Cir. Sept. 3, 1995) (No. 94-
15733; appellant's reply brief filed Aug. 18, 1994). In
that case, however, the court applied Fed. R. App. P. 38
+¥ See Gabor v. Frazer, 78 F.3d 459 (9th Cir. 1996) (No. 94-17133;
appellant brief filed 3/6/95; appellee brief filed 3/30/95); In re Del
Mission Ltd., 98 F.3d 1147 (9th Cir. 1996) (No. 95-35183); In re Am.
Continental Corp., 102 F.3d 1524 (9th Cir. 1996) (Nos. 95-15759, 95-
16403, 95-16595, 95-16754). See also, In re Sovereign Partners, 110
F.3d 70 (table), 1997 WL 160279, 1997 U.S. App. LEXIS 6598 (9th
Cir. Apr. 4, 1997) (No. 95-15804); In re Wall, 108 F.3d 340 (table),
1997 WL 74470, 1997 U.S. App. LEXIS 3139 (9th Cir. Feb. 18, 1997)
(No. 95-55887); Regal Capital, Inc. v. Valencia, 106 F.3d 408 (table),
1997 WL 31139, 1997 U.S. App. LEXIS 1105 (9th Cir. Jan. 21, 1997)
(No. 95-17249); Aguilar v. Sunland Beef Co., 89 F.3d 844 (table),
1996 WL 218188, 1996 U.S. App. LEXIS 11049 (9th Cir. Apr. 29,
1996) (No. 95-15028); In re Lund, 83 F.3d 427, 1996 WL 183658,
1996 U.S. App. LEXIS 9756 (9th Cir. Apr. 12, 1996) (No. 95-55887);
Payne v. Exxon Corp., 73 F.3d 370 (table), 1995 WL 766016, 1995
U.S. App LEXIS 38376 (9th Cir. Dec. 29, 1995) (95-35183); Shiloh v.
Reader's Digest Ass'n Inc., 62 F.3d 1425, 1995 WL 465774, 1995 U.S.
App. LEXIS 22927 (9th Cir. Aug. 7, 1995) (No. 94-56425; appellant's
brief filed 11/23/94 ruled “deficient” by the court and appellant refiled
opening brief 2/22/95); In re Allustiarte, 62 F.3d 1425 (table), 1995
WL 460407, 1995 U.S. App. LEXIS 22468 (9th Cir. Aug. 3, 1995)
(No. 94-15739; appellant's reply brief filed 12/22/94); Fordjour v.
Forties Benefits Ins. Co., 57 F.3d 1076, 1995 WL 341562, 1995 U.S.
App. LEXIS 14446 (9th Cir. June 8, 1995) (No. 94-16484; appellant
reply brief filed 12/19/94).
ye
sua sponte; there is no indication that the appellee had
moved for sanctions. The Ninth Circuit's decision to
provide notice and an opportunity to respond under those
circumstances is easily distinguishable from Miller and
Abar, where Petitioner was put on notice of the possibility
of sanctions by Owens-Illinois’ appellate briefs.
Thus, Petitioner has failed to demonstrate that
a single decision exists in which a court has required
separate notice and an opportunity to respond where
Sanctions have been imposed pursuant to an appellee's
request and briefing has been completed prior to the
implementation of the 1994 amendment to Fed. R. App.
P. 38. The Ninth Circuit has not strayed from its prior
decisions in this matter, and its determination in Miller
and Abar does not warrant the exercise of this Court's
supervisory power. No important matter exists; no
compelling reasons for review have been raised. Petitioner
merely wants yet another chance to delay the latest
consequences of its repeated sanctionable behavior.
i Petitioner Seeks Only To Delay — Not To
Oppose — the Imposition of Sanctions.
Delay, not avoidance, of the Ninth Circuit's award
of sanctions could be the only relief this Court could
provide to Petitioner, because even with notice and an
opportunity to respond to a request for sanctions, Petitioner
has no excuse for its sanctionable behavior. In none of the
many opportunities given Petitioner to justify the bringing
of the frivolous appeal in Miller and Abar has Petitioner
provided an explanation for the bringing of the appeal —
not in the appellate Reply Brief, not in the Motion to
Vacate Sanctions, not in the Motion for Reconsideration of
Sanctions. At no point has Petitioner asserted that notice
-e.
of sanctions would have altered its behavior. At no time
has Petitioner denied the frivolous nature of the appeal.
Rather, Petitioner merely seeks to delay the inevitable
imposition of sanctions by the Ninth Circuit through the
waste of this Court’s resources and the expenditure of time
and energy of all parties concerned.
The Ninth Circuit found the appeal of Miller and
Abar frivolous. That court then imposed sanctions. Even
if Petitioner were to succeed before this Court on the
merits of this dispute, eventually — with yet more notice
and yet another opportunity to respond — sanctions will be
imposed. This Court should not be made a forum by
which Petitioner can delay — but not prevent — payment
of sanctions for its frivolous appeal.
lil. DUE PROCESS WAS NOT DENIED BECAUSE
PETITIONER HAD ADEQUATE NOTICE AND
REASONABLE OPPORTUNITY TO RESPOND
TO THE IMPOSITION OF SANCTIONS.
A. Petitioner Ignored the Threat of Sanctions
from Several Sources.
Petitioner was on prior notice from several different
sources that sanctions could be imposed by the Ninth
Circuit. Specifically, as set forth earlier, the briefs of
defendant-appellee Owens-Illinois, in both the Miller and
Abar actions, contained a separate section requesting
sanctions that fully set forth authority to support the
request. (Pet’r App. 58-59, 65-66.) By means of these
repeated requests for sanctions, Petitioner was specifically
on notice that sanctions were directly requested.
In addition to the specific notice provided to
Petitioner by Owens-Illinois, Petitioner should have been
aware of the existence of Rule 38 and the Ninth Circuit's
imposition of sanctions pursuant to that Rule. See, e.g.,
Smith v. Ricks, 31 F.3d at 1489 (imposing sanctions
without separate hearing); Jn re Becraft, 885 F.2d 547, 548
(9th Cir. 1989) (Rule 38 sanctions imposed directly on
counsel) (citations omitted); Hatch v. Reliance Ins. Co..,
758 F.2d at 416 (awarding double costs and attorneys’ fees
sua sponte); McConnell v. Critchlow, 661 F.2d 116, 118
(9th Cir. 1981) (awarding sanctions pursuant to Rule 38
for frivolous appeal).
Moreover, Petitioner had notice from other courts
that it was risking sanctionable conduct by pursuing an
appeal of the dismissal of Miller and Abar to the Ninth
Circuit. Indeed, prior to the time that Petitioner filed
its appeal in Miller and Abar, several district courts
and one appellate court had considered complaints filed by
Petitioner that were virtually identical to the complaints
filed in Miller and Abar. In dismissing each one of these
actions, these courts made it clear that Petitioner’s
complaints were meritless and worthy of sanctions. See
Abbey v. ACandS, Inc., No. C-93-2813 MHP (N.D. Cal.
Sept. 27, 1993) (sua sponte dismissing action, virtually
identical to those filed in Miller and Abar, filed by
Petitioner on behalf of 1,000 individuals in the U.S.
District Court for the Northern District of California,
where the complaint was “so abusive that it may well
invoke sanctions under Rule 11") (Resp’ts App. 24ra);
Acevedo v. ACandS, Inc., No. 93-0629-AH-S (S.D. Ala.
Oct. 28, 1993) (dismissing action, virtually identical
to those filed in Miller and Abar, filed by Petitioner on
behalf of 1,000 individuals in the U.S. District Court for
the Southern District of Alabama, where the complaint was
~.
Ship id tal te at
held to be “an abuse of federal procedures and may well
invoke sanctions under Rule 11") (Resp’ts App. 21ra); see
also, Abdullah v. ACandS, Inc., 30 F.3d 264, 270 (Ist Cir.
1994) (affirming dismissal of action with prejudice,
virtually identical to those filed in Miller and Abar, for
Petitioner’s failure to abide by district court’s order
requiring amendment of seriously deficient complaints filed
on behalf of 1,000 individuals); Brown v. ACandsS, Inc..,
No. 2:93-1274 (E.D. Pa. Mar. 18, 1994) (dismissing action,
virtually identical to those filed in Miller and Abar,
originally filed by Petitioner on behalf of 1,000 individuals
in the U.S. District Court for the Western District of
Louisiana and holding that Petitioner had received
“sufficient notice” of the complaint's deficiencies through
“the previous rulings and orders of other district court
judges in his similar companion cases”) (Resp’ts App.
8ra. HY
In view of the foregoing, it could hardly have come
as a surprise to Petitioner that his appeal of the District
Court’s Dismissal Order in Abar and Miller would be
deemed nothing more than the frivolous appeal of a
meritless complaint. Petitioner was clearly on notice
that sanctions could be imposed. Nevertheless, Petitioner’ s
reply brief cavalierly ignored the threat of sanctions from
other courts for similar conduct and the request for
sanctions by Owens-Illinois. Petitioner should not be
Nor was the Ninth Circuit decision the first time that monetary
sanctions had been awarded against the Petitioner. See, e.g., Carroll v.
Jaques Admiralty Law Firm, 110 F.3d 290 (Sth Cir. 1997) (affirming
district court’s award of $7,000 sanction against Petitioner for
swearing, threatening, and insulting former client’s counsel during
deposition).
- 25 -
granted redress by this Court for its own failure to
recognize the consequences of its actions.
B. The Ninth Circuit Complied with the
Spirit of the Amended Rule 38 and
Accorded Petitioner Sufficient Due
Process.
Even assuming, arguendo, that the Ninth Circuit
was required to comply with the terms of amended Rule
38 before imposing sanctions against Petitioner, the
spirit of the amended Rule was followed and Petitioner
was accorded sufficient due process. The Advisory
Committee Notes to the 1994 Amendment state that in the
absence of a separate motion requesting sanctions, “notice
must come from the court.” The Notes continue that “(t]he
form of notice from the court and of the opportunity for
comment purposely are left to the court's discretion.”
Thus, the Ninth Circuit had the power to act according to
the dictates of its own judgment in deciding the “form of
notice” and “form of opportunity for comment.”
The “form of notice” chosen by the Ninth Circuit
was its Memorandum Disposition of April 16, 1996. The
sanctions were then subject to the Appellate
Commissioner's determination as to the amount of those
sanctions. The Appellate Commissioner's General Order
6.3(e) expressly granted 45 days from entry of the Order
in which to file a response to the applications for attorneys’
fees and costs. (Pet’r App. 46.) Petitioner therefore
expressly had the opportunity in its response to the
applications to challenge the attorneys’ fees and costs
submitted by each of the defendant-appellees.
,
A aR ea tS aS
Pe hn FE wa re eR a OD GN ts ee A Md LY F
Furthermore, fourteen days after the Ninth Circuit's
Memorandum Disposition, Petitioner filed a Motion to
Vacate Summary Imposition of Rule 38 Sanctions or, in
the Alternative, for Statement of Reasons and an
Opportunity to Respond. In its brief in support of its
motion, Petitioner could have explained, but chose not to,
why sanctions should not be imposed. Petitioner also filed
a Motion for Reconsideration of Portions of the Appellate
Commissioner's Order Granting Attorneys’ Fees and
Double Costs. In that motion — denied by the Ninth
Circuit — Petitioner never even mentioned Rule 38.
Thus, Petitioner has had ample opportunity to
explain why the request for sanctions should not have
been granted, but has never once availed itself of those
opportunities. The amended Rule calls for Petitioner to
have a “reasonable” opportunity to respond and leaves the
form of such opportunity for comment to the court. The
Ninth Circuit afforded Petitioner reasonable opportunities
for comment, each of which it refused to take. Petitioner
has decried the deprivation of its right to be heard on
this issue, but has wasted every opportunity to justify
its bringing of a frivolous appeal to the Ninth Circuit.
As in Simmons, supra at 16, the Ninth Circuit's
decision to consider the request for sanctions pursuant
to the prior version of Rule 38 did not “prejudice the
appellant or denigrate the recent amendment to the Rule.”
Simmons, 65 F.3d at 531. The spirit and intent of the
requirements of amended Rule 38 that Petitioner be
afforded notice and opportunity for comment were fully
met. Accord, Hoefler v. Caesars Tahoe, 15 F.3d 1085
(table), 1994 WL 28354, at *2, 1994 U.S. App. LEXIS
2420, at *5 (9th Cir. Jan. 31, 1994) (finding it sufficient
that spirit and intent of amended Rule 3(c) complied with).
+
Due process is a “flexible concept and the particular
procedural safeguards required will vary depending upon
all the circumstances.” Julien v. Zeringue, 864 F.2d 1572,
1575 (Fed. Cir.) (citing Morrissey v. Brewer, 408 U.S. 471,
481 (1972)), cert. denied, 493 U.S. 917 (1989). Under the
particular facts of this case, Petitioner's rights of due
process have been satisfied, and Petitioner's assertions to
the contrary are totally without merit.
CONCLUSION
In awarding sanctions, the Ninth Circuit properly
applied the version of Rule 38 of the Federal Rules of
Appellate Procedure in effect at the time of Petitioner’s
sanctionable conduct. Petitioner's claims that the Ninth
Circuit erred, that a conflict among the circuits exists, and
that due process has been denied are all erroneous. This
matter is not worthy of further time and attention by this
Court, and the Petition for Certiorari to the Ninth Circuit
should be denied.
DATED at Washington, District of Columbia, this
4th day of August, 1997.
Respectfully submitted,
ARENT FOX KINTNER PLOTKIN & KAHN
Marc L. Fleischaker
Donald C. McLean*
Laurel A. Bedig
Rache! G. Lattimore
Counsel for Respondents
Fel-Pro Incorporated and
Felt Products Mfg. Co.
* Counsel of Record
- 99.
APPENDICES
APPENDICES TABLE OF CONTENTS
Appendix A:
Appendix B:
Appendix C:
Appendix D:
Appendix E:
Communication from the
Chief Justice, the Supreme Court
of the United States, Transmitting
Amendments to the Federal Rules of
Appellate Procedure, H.R. Doc. No. 247.
103d Cong., 2d Sess., 1 (1994) ........ lra
Order of U.S. District Court for the
Eastern District of Pennsylvania
Dismissing Plaintiffs’ Action
in Brown, March 18,1994 ........... 6ra
Order of U.S. District Court for the
Southern District of California
Denying Plaintiffs’ Motion for
Relief From Judgment of Dismissal
and Request for Transfer
in Abar and Miller, March 14,1994 ... 10ra
Order of U.S. District Court for the
Southern District of Alabama
Dismissing Plaintiffs’ Action
in Acevedo, October 28,1993 ........ 18ra
Order of U.S. District Court for the
Northern District of California
Dismissing Plaintiffs’ Action
in Abbey, September 27, 1993 ........ 23ra
Appendix F:
Appendix G:
Appendix H:
Order of U.S. District Court for the
Southern District of California
for Petitioner to Show
Cause re the Factual and Legal Bases
for the Action in Abar,
September ©, 1993 2... cece cas es 2OTO
Order of U.S. District Court for the
Southern District of California
for Petitioner to Show
Cause re the Factual and Legal Bases
for the Action in Miller,
senteminer S, 1993 oc. ce cess. 27ra
Plaintiffs’ Complaint filed
in U.S. District Court
for the Southern District of California
im AGU, FOR 27, TIPS: oda ccesecss 29ra
i ee
a we a ee ———————
APPENDIX A
103d Congress, 2d Session--------- House Document 103-247
AMENDMENTS TO THE FEDERAL RULES OF
APPELLATE PROCEDURE
COMMUNICATION
FROM
THE CHIEF JUSTICE, THE SUPREME COURT
, OF THE UNITED STATES
TRANSMITTING
i AMENDMENTS TO THE FEDERAL RULES OF
APPELLATE PROCEDURE
AS ADOPTED BY THE COURT, PURSUANT TO 28
U.S.C. 2072
MAY 2, 1994.—Referred to the Committee on the Judiciary
and ordered
to be printed
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON: 1994
Supreme Court of the United States
Washington, D.C. 20543
Chambers of
THE CHIEF JUSTICE
April 29, 1994
Dear Mr. Speaker:
By direction of the Supreme Court of the United States,
I have the honor to submit to the Congress amendments to the
Federal Rules of Appellate Procedure that have been adopted
by the Supreme Court pursuant to Section 2072 of Title 28,
United States Code. While the Court is satisfied that the
required procedures have been observed, this transmittal does
not necessarily indicate that the Court itself would have
proposed these amendments in these amendments in the form
submitted.
Accompanying these rules are excerpts from the report
of the Judicial Conference of the United States containing the
Advisory Committee Notes submitted to the Court for its
consideration pursuant to Section 331 of Title 28, United States
Code.
Sincerely,
S/
Honorable Thomas S. Foley
Speaker of the House of Representatives
Washington, D C 20515
SUPREME COURT OF THE UNITED STATES
Friday, April 29, 1994
ORDERED:
l. That the Federal Rules of Appellate Procedure
be, and they hereby are, amended by including therein
amendments to Appellate Rules 1, 3, 5, 5.1, 9, 13, 21, 25, 26.1,
27, 28, 30, 31, 33, 35, 38, 40, 41, and 48.
[See infra., pp. J
2. That the foregoing amendments to the Federal
Rules of Appellate Procedure shall take effect on December 1,
1994, and shall govern all proceedings in appellate cases
thereafter commenced and, insofar as just and practicable, all
proceedings in appellate cases then pending.
3. That THE CHIEF JUSTICE be, and he hereby
is, authorized to transmit to the Congress the foregoing
amendments to the Federal Rules of Appeilate Procedure in
accordance with the provisions of Section 2072 of Title 28.
United States Code.
a ee ee re
settle a case without his or her client’s consent. Certain entities,
especially government entities, have particular difficulty
obtaining authority to settle a case. The rule requires counsel to
obtain only as much authority "as feasible."
Rule 35. Determination of Causes by the Court In Banc
kk eK
hI
UJ
Subdivision (d). Subdivision (d) is added; it authorizes
the courts of appeals to prescribe the number of copies of
suggestions for hearing or rehearing in banc that must be filed.
Because the number of copies needed depends directly upon the
number of judges in the circuit, local rules are the best vehicle
for setting the required number of copies.
Rule 38. Damages and Costs for detay Frivolous
Appeals
l If a court of appeals shat determines that an
Nm
appeal is frivolous, it may, after a separately filed
- 4ra -
oti ice fi the c able
3
4 opportunity to respond, award just damages and single
5
or double costs to the appellee.
ittee Note
The amendment requires that before a court of appeals
may impose sanctions, the person to be sanctioned must have
notice and an opportunity to respond. The amendment reflects
the basic principle enunciated in the Supreme Court’s opinion
in Roadway Express, Inc. v. Piper, 447 U.S. 752, 767 (1980),
that notice and opportunity to respond must precede the
imposition of sanctions. A separately filed motion requesting
sanctions constitutes notice. A statement inserted in a party’s
brief that the party moves for sanctions is not sufficient notice.
Requests in briefs for sanctions have become so commonplace
that it is unrealistic to expect careful responses to such requests
without any indication that the court is actually contemplating
such measures. Only a motion, the purpose of which is to
request sanctions, is sufficient. If there is no such motion filed,
notice must come from the court. The form of notice from the
court and of the opportunity for comment purposely are left to
the court’s discretion.
Rule 40. Petition for Rehearing
l (a) Time for Filing; Content; Answer; Action by
2 Court if Granted.-- A petition for rehearing may be
filed
- 5ra -
APPENDIX B
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
IN k=: ASBESTOS PRODUCTS |)
LIABILITY LITIGATION (NO. VI) )
)
This Document Relates To +?)
USDC - Western District ) CIVIL
of Louisiana ) ACTION
Charlie J. BROWN, ET AL. ) NO. MDL 875
Civil Action No. 2:93-1274 )
) FILED
MAR. 18 1994
ORDER
THIS MATTER came on for hearing the 11th day of
March, 1994 at 10:30 AM upon the Court's Show Cause Order.
Numerous defendants appeared through counsel; although a
response was filed, plaintiffs were not present in person nor
were they represented by counsel at the hearing.” The Show
Cause Order of the Court was precipitated by the filing of
Although this Court's Show Cause Order did not create an
obligatory appearance by counsel at this hearing, the Court finds it
discourteous at best for counsel to not be present or fail to notify the Court
of the intent not to appear, particularly following counsel's complaint that
the courts have been dismissing his actions sua sponte without notice or an
opportunity to be heard. Counsel went on to state in his response to the
Show Cause Order: "Fortunately, this Court has afforded these maritime
claimants with an opportunity to respond to these misrepresentations and,
hopefully, derail the runaway train of erroneous rulings."
- 6ra -
numerous motions by the defendants for dismissal of this action
or for alternative relief.
This case was initiated by the filing of a lawsuit on
August 9, 1993 in the Western District of Louisiana naming
1,000 plaintiffs and 93 defendants. Similar lawsuits with
different multiple plaintiffs and the same defendants were filed
in the United States District Courts for the Districts of
Maryland and Massachusetts, the Northern and Southern
Districts of California, and the Southern District of Alabama.
In each instance the local district court acted sua sponte to
either dismiss the lawsuit or issue a show cause order which,
following a hearing, then led to a dismissal order. In the matter
before the Court, a similar show cause order had been entered
by Judge Trimble on August 16, 1993; however, no hearing
was held due to the transfer of the action to the Eastern District
of Pennsylvania by the Multidistrict Panel.
The Court has reviewed the Complaint filed in this
Action and specifically notes deficiencies relating to
jurisdictional factors and individual plaintiff information that
normally appear in complaints. The defendants cannot be
presumed to respond to a complaint when they are unable to
identify which plaintiff is suing them, the injury involved, when
and where it occurred. Mylan Laboratories, Inc. v. Akzo, N.V.,
770 F.Supp. 1053 (D.Md. 1991). With 1000 named plaintiffs
and 93 named defendants, counsel for the plaintiffs was unable
to individually identify the plaintiffs and defendants in 4”
—
pages of pleading, let alone provide a succinct statement of the
elements of any single claim.
Furthermore, the 1,000 plaintiffs assert joinder under
Rule 20, F.R.C.P.*, but there is a total failure to identify the
facts of the "same transaction, occurrence, or series of
transactions or occurrences" as required by Rule 20. There
must be a "logical relationship" to meet the test of joinder
under Rule 20. Dougherty v. Mieczkowski, 661 F.Supp. 267
(D.Del. 1987). The Court finds no stated relationship to meet
this test.
Notwithstanding the concern of several federal courts
regarding these identical deficiencies in counsel's other similar
cases previously described, there has been no attempt by
plaintiffs to amend the Complaint or even to provide this or any
Court with the factual information which would sustain this
action.
THIS COURT FINDS that the Complaint is deficient of
necessary facts and allegations necessary for a Rule 20 joinder;
and further,
THIS COURT ALSO FINDS that Plaintiffs’ counsel has
had sufficient notice of these deficiencies through the motions
of the defendants and the previous rulings and orders of other
district court judges in his similar companion cases to have
In discussing the requirements of Rule 8(a)(2), F.R.C.P., Moore's
Federal Practice sets forth: "But the general test remains constant: does the
statement of the claim contain the required elements stated plainly and
succinctly, and does it give fair notice to the opposite party?”
Paragraph No. | of the Complaint commences: "This Complaint
is brought under Rule 20 of the Federal Rules of Civil Procedure..."
- 8ra -
responded in writing to this Court, to have requested the
opportunity to amend the Complaint, or to otherwise have
appeared and answered these inquiries regarding such
deficiencies.
) IT IS ORDERED that the Complaint IS DISMISSED
. WITHOUT PREJUDICE as to all defendants and that the
following restrictions shall apply to any refiling by any of these
plaintiffs against any of these defendants:
l. The plaintiff must be specifically identified by
social security number and residence (Counsel!
shall further identify all similar lawsuits
involving the same plaintiff).
N
Plaintiff's work history, as it relates to asbestos
exposure, shall be set forth in detail.
Plaintiff's alleged disease shall be identified
AND a medical report or diagnosis of such
disease shall be attached to the complaint.
2
4. Each plaintiff shall require an individual
lawsuit.
BY THE COURT
Date: 3 : | 8/94 S/
Charles R. Weiner,
Judge
APPENDIX C
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
CREIGHTON MILLER,)
Administrator
for the Estates
of Isaac W.
Abraham, et al.
Plaintiff,
V.
AC and §S, Inc. et al.,
Defendants
NORMAN ABAR, et al.
Plaintiffs,
V.
AC and §S, Inc., et al.,
Defendants.
Ne Nee Ne ee ee ee ee ee ee ee a ee
FILED MAR 14 1994
U.S. DISTRICT COURT
SOUTHERN DISTRICT
OF CALIFORNIA
CIVIL NOS.
93-1119(R) (RCM) &
93-1120(G) (BTM)
ORDER DENYING MOTION
FOR RELIEF FROM
JUDGMENT OF DISMISSAL
- 10ra -
The instant actions are before the Court on Plaintiffs’
motion for relief from judgment of dismissal, pursuant to
Fed. R. Civ. P. 60(b)(6).” Plaintiffs also request the court to
transfer the above actions to the United District Court for the
Northern District of Ohio. Because Plaintiffs have failed to
meet the requirements of Fed. R. Civ. P. 60(b,)(6), their
motion is denied, and because Plaintiffs’ complaints were
previously dismissed, there are no cases to transfer.
Therefore the request to transfer is also denied.
lL. Facts
A. Procedural History
These cases were brought on July 29, 1993 and
August 2, 1993 respectively. In Miller, an administrator for
the estates of 370 decedents brought suit against 93
Defendants. In the second complaint, Abar was the first of
994 named Plaintiffs suing the same 93 Defendants named in
Miller.
The complaints on their face raised serious questions
concerning this Court’s jurisdiction, among other matters.
There were also problems associated with coordinating the
many different requests from Defendants’ counsel.
Therefore, on September 9, 1993, the Court issued a show
cause order, requiring Plaintiffs’ attorney to answer various
questions concerning the factual and legal bases for the
complaints, and staying the proceedings.
Prior to the stay, certain Defendants filed motions to
dismiss. The hearing date on those motions was originally
set for November 1, 1993.
: Pursuant to Southern District of California Local Rule 7.1(d)(1),
I find this motion suitable for decision without oral argument.
- llra-
On September 27, 1993, the Judicial Panel on
Multidistrict Litigation issued a conditional transfer order for
the above two cases.
On November I, 1993, the Court ordered Plaintiffs’
attorney to respond in writing to the show cause order. The
response was received on November 22, 1993.
Because this Court was obliged to determine whether
these complaints were properly pleaded, and because certain
Defendants had already moved to dismiss for defects in the
complaints, this Court decided the motions to dismiss
previously on file. Those motions, once set for November 1,
1993, were reset for January 18, 1994.
3. Order Granting Mot Dismi
On January 18, 1994, this Court issued a two part
order. First, it dropped all but the first named Plaintiff in
Abar, and the first of Plaintiff's decedents in Miller, for
improper joinder under Fed. R. Civ. P. 20. Second, it
dismissed the complaints tor failure to satisfy Fed. R. Civ. P.
8(a).
The order expressly stated that it was without
prejudice to the dropped Plaintiffs -- or Creighton Miller on
behalf of the dropped individual decedents -- instituting suit
based on the claims attempted to be set forth in the original
complaints, so long as any new filings complied with
applicable law. In addition, the remaining Plaintiffs --
Creighton Miller as administrator for the Estate of Isaac W.
Abraham and Norman Abar -- were given 21 days leave to
amend their complaints to comply with Fed. R. Civ. P. 8.
- 12ra-
SE
ewer
me
——— nl
ene
As aresult of this Court’s January 18 order, the
Multidistrict Litigation Panel vacated its conditional transfer
order.
Finally, on January 31, 1994, rather than refiling
separate complaints on behalf of the dropped parties, or
amending the complaints on behalf of the remaining
Plaintiffs, Plaintiffs’ counsel filed the instant motion.
a Potent eset
IL. Discussi
A. Rule 60(b)(6)
Plaintiffs move for relief from judgment of dismissal
pursuant to Fed. R. Civ. P. 60(b)(6). The full rule states that
On motion and upon such terms as are just, the court
may relieve a party or a party’s legal representative
from a final judgment, order, or proceeding for the
following reasons: (1) mistake, inadvertence,
surprise, or excusable neglect; (2) newly discovered
evidence which by due diligence could not have been
discovered in time to move for a new trial under Rule
59(b); (3) fraud . . . , misrepresentation, or other
misconduct of an adverse party; (4) the judgment is
void; (5) the judgment has been satisfied, released, or
discharged, or a prior judgment upon which it is
based has been reversed or otherwise vacated, or it is
no longer equitable that the judgment should have
prospective application; or (6) any other reason
justifying relief from the operation of the judgment.
As the rule itself reveals, Rule 60(b)(6) is a catchall
provision. Its use is infrequent: it is properly invoked “only
where extraordinary circumstances prevented a party from
- 13ra-
taking timely action to prevent or correct an erroneous
judgment.” U.S. v. Alpine Land & Reservoir, Co., 984 F.2d
1047, 1049 (9th Cir. 1993), cert denied, 114 S.Ct. 60 (1993).
A district court’s decision on a Rule 60(b)(6) motion is
reviewed under an abuse of discretion standard. Fiester v.
Turner, 783 F.2d 1474, 1476 (9th Cir. 1986).
Here the ground of Plaintiffs’ motion is that the
statute of limitations has run on the claims of all of the
Plaintiffs originally named in Abar, and on 108 of the
decedents originally named in Miller.
Plaintiffs’ motion is denied, for several reasons.
First, Rule 60(b)(6) by its terms applies to final orders only.
The January 18, 1994 order issued in these cases, however,
was not a final order. Ruby v. Secretary of United States
Navy, 365 F.2d. 385, 387 (9th Cir. 1966), cert. denied, 386
U.S. 1011 (1967) (stating that dismissal without prejudice is
nonappealable interlocutory order, unless it is clear that “the
action could not be saved by any amendment of the
complaint which the plaintiff could reasonably be expected
to make, thereby entitling Plaintiff to assume that he had no
choice but to stand on his complaint”).
The January 18, 1994 order dismissed the causes of
action without prejudice. It also expressly stated that the
dropping of all but the first-named Plaintiff or Plaintiff's
decedent was “without prejudice to the dropped plaintiffs --
or Creighton Miller on behalf of the other individual
decedents -- instituting suit based on the claims attempted to
be set forth in the present Complaints.” Hence the order was
not final, and Rule 60(b)(6) does not apply.
Second, even if Rule 60(b) applies to the January 18,
1994 order, Plaintiffs have not shown that they are entitled to
- 14ra -
ST TT
the relief which the rule provides. As noted above, relief
under Rule 60(b)(6) is available only in extraordinary
circumstances. Alpine Land 984 F.2d at 1049. In addition,
“relief may not be had where ‘the party seeking
reconsideration has ignored normal legal recourses.’” Id.
(quoting In re Pacific Far East Lines, Inc., 889 F.2d 242, 250
(9th Cir. 1989)). Hence “where parties have made deliberate
litigation choices, Rule 60(b)(6) should not provide a second
chance.” Id.
Here there are several facts showing that deliberate
litigation choices were made. First, Plaintiffs’ counsel
concedes that Plaintiffs or Plainfiff's decedents have similar
claims pending in the U.S. District Court for the Northern
District of Ohio. The fact that there are such cases
demonstrates two things: first, Plaintiffs retain some claims;
and second, Plaintiffs were indeed able to file properly
pleaded, individualized complaints within the period
required by the applicable statutes of limitations.
Second, counsel was put on notice concerning the
deficiencies of these complaints as early as September 8,
1993, when this Court issued its show cause order. Plaintiffs
could have attempted to amend these complaints at that time.
Plaintiffs counsel could also have attempted to file amended
complaints and separate, properly pleaded complaints on
behalf of the dropped parties under the terms of the January
18, 1994 order. In addition, it was the decision of Plaintiffs’
counsel to file the complaints in their original, improper
form. Finally, subsequent to the January 18, 1994 order,
there was the possibility of appeal.
There is a third reason why the Plaintiffs are not
entitled to the relief Rule 60(b)(6) provides: courts have held
that the fact that a statute of limitations might bar an action
- 15ra -
does not, by itself, constitute an extraordinary circumstance
under Rule 60(b)(6). Wagner Spray Tech Corp. v. Wolf, 113
F.R.D. 50 (S.D.N.Y. 1986). Since the statute of limitations
argument is Plaintiffs’ sole ground for relief, it follows that
Plaintiffs’ motion should be denied.
B. Tran
Plaintiffs also request that this Court transfer the
instant actions to the U.S. District Court for the Northern
District of Ohio. The request is denied, for two reasons.
First, because the motion for relief from judgment is
denied, and because the complaints in these cases have been
dismissed, there are simply no causes of action to transfer.
Second, 28 U.S.C. § 1404(a) governs a motion to
transfer. Section 1404(a) provides that “[f]or the
convenience of parties and witnesses, in the interest of
justice, a district court may transfer any civil action to any
other district or division where it might have been brought.”
The moving party bears the burden of demonstrating “by
particular circumstances” that transfer is appropriate.
Commodity Futures Trading Comm’n v. Savage, 611 F.2d
270, 279 (9th Cir. 1979).
Here Plaintiffs have failed to show by particular
circumstances that transfer is appropriate. In particular, they
have not given any indication that transfer will serve the
convenience of parties and witnesses. More important,
transfer would add to rather than alleviate the cost to litigants
and the expenditure of judicial resources.
Il. usion
- l6ra -
For the above reasons, the motion for relief from
judgment and the request for transfer are denied.
IT IS SO ORDERED.
Date: 3/14/94 S/
JOHN S. RHOADES, SR.
UNITED STATES DISTRICT
JUDGE
APPENDIX D
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
RUBEN L. ACEVEDO, et al.)
Plaintiffs,
93-0629-AH-S
ACand§S, INC., et al.,
)
)
)
v. ) CIVIL ACTION NO.
)
)
)
Defendants. )
ORDER
This matter is before the Court on the filing of this
action by approximately 1,000 plaintiffs against 93
defendants. [Doc. #4.] The claims are for injury and/or
wrongful death of each of the plaintiffs, who are alleged to
have suffered a host of diseases and injuries as a result of
exposure to asbestos and asbestos-containing products on
9,824 different vessels. No attempt to file this complaint as a
class action has been made.
For the following reasons, Plaintiffs’ complaint is
dismissed without prejudice.
- 18ra -
I. SUBJECT MATTER JURISDICTION
Plaintiffs allege admiralty jurisdiction as the basis for
this action; the complaint also alleges diversity jurisdiction
for some plaintiffs.
This Court has no diversity jurisdiction in this case.
In order to create diversity, 28 U.S.C. § 1332 requires the
matter be between citizens of different states. The language
of that statute was interpreted to mean there must be
“complete diversity” in Strawbridge v. Curtiss, 7 U.S. (3
Cranch) 267 (1806). See also, e.g., Carden v. Arkoma
ASSOCS., US. , 1108S. Ct. 1015 (1990).
“Complete diversity” means that every plaintiff must be of
diverse citizenship from every defendant. 1 Moore’s Federal
Practice { 0.71[5.-2]. Exhibits A-I and A-II clearly show
there is no complete diversity in this action; therefore, the
Court has no diversity jurisdiction over this matter.
This Court has no admiralty jurisdiction in this
matter. In their “Response and Memorandum to Order to
Show Cause,” Plaintiffs state
[i]t is axiomatic that a seaman’s product liability
claims are governed by the general admiralty and
maritime law. Specifically Plaintiffs’ Counsel relies
upon Sheffield v. Owens-Corning Fiberglass, 595 So.
2d 443 (Ala. 1992) to invoke the federal maritime
law.
Response and Memorandum at p. 3. Plaintiffs’ Counsel’s
reliance is misplaced; such product liability claims are not, in
this Circuit, governed by admiralty and maritime law.*
Federal maritime jurisdiction does not extend to personal
injury and products liability claims brought by former
seamen who were allegedly exposed to asbestos on a vessel.
Cochran v. E.I. duPont de Nemours, 933 F.2d 1533, 1535
(llth Cir. 1991), cert. denied, U.S. , 112 S. Ct.
881 (1992). Such an exercise of admiralty jurisdiction would
not advance the policies behind a uniform federal law of
admiralty. Jd.
Plaintiffs have alleged no other grounds to invoke the
subject matter jurisdiction of this Court; therefore, the cause
is due to be dismissed for lack of subject matter jurisdiction.
Ill. IMPROPER JOINDER
Federal Rule of Civil Procedure 20 governs the
permissive joinder of parties. Plaintiffs claim the joinder of
the approximately 1000 plaintiffs in one action is proper
under Rule 20. That rule provides the following (in pertinent
part):
All persons may join in one action as
plaintiffs if they assert any right to relief
jointly, severally, or in the alternative in
respect of or arising out of the same
transaction, occurrence, or series of
transactions or occurrences and if any
question of law or fact common to all these
persons will arise in the action.
4 Decisions of state courts on admiralty questions are not binding
authority on this Court.
- 20ra -
Oe Rh ee eee ee ae)
PEE NN Gh Ole PTO WT} wi hea LN Wet Adah nn abe
Plaintiffs, in the introduction to their complaint,
allege that “1,000 individual Plaintiffs of the United States
Merchant Marine who served aboard 9,824 ships in toto as
crewmembers comprising 68,434 separate sea voyages
spanning contemporary seafaring careers to the year 1990,
averaging 44 divers ships per Plaintiff who sailed to multiple
ports-of-call throughout the world . . .” In light of these
allegations (which Plaintiff cannot now dispute), it is
inconceivable that the 1,000 plaintiffs assert any right to
relief “in respect of or arising out of the same transaction,
occurrence, or series of transactions or occurrences.” This
action, therefore, is due to be dismissed without prejudice
under Fed. R. Civ. P. 20(b) in order to prevent delay and
prejudice.
IV. ABUSE OF PROCESS
This complaint is an abuse of federal procedures and
may well invoke sanctions under Rule 11, which the Court
may impose on its own motion. Fed. R. Civ. P. 11. There is
no subject matter jurisdiction; Plaintiffs’ sparse factual
allegations cannot support the joining of 1000 plaintiffs; and
Plaintiffs cannot avoid payment of the separate filing fees*
and venue requirements by filing a single action that is really
1000 separate actions.
The Court intends to spare the judicial system and
defendants from the plethora of papers and motions for
sanctions likely to ensue such an improper pleading by sua
sponte dismissal of this action without prejudice to the
z Plaintiffs have paid the r-quired $120.00 filing fee for a civil
action; if these actions were properly filed separately, the filing fees could
be as much as $120,000.00.
-2lra-
plaintiffs each filing separate actions in the appropriate
courts against the proper defendant or defendants. For the
foregoing reasons, Plaintiffs’ Complaint is DISMISSED
WITHOUT PREJUDICE.
DONE this 28th day of October, 1993.
S/
CHIEF UNITED STATES
DISTRICT JUDGE
- 22ra -
APPENDIX E
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
JACK L. ABBEY, et al., NO. C-93-2813 MHP
)
)
)
Plaintiffs, ) ORDER
)
—vVs — )
)
ACandS INC., ACMC )
f/k/a NATIONAL GYPSUM,)
COMPANY, et al.., )
Defendants.
i id
Plaintiffs have filed this action asserting the claims of
approximately 1,000 plaintiffs against 93 defendants. The
claims purport to be in admiralty and are for injury and/or
wrongful death of each of the plaintiffs who are alleged to
have suffered a host of diseases and injuries as a result of
exposure to asbestos and asbestos-containing products.
The allegations of the complaint are contained in a
little over four pages. The caption takes up 21 pages.
Nowhere in the complaint is there any attempt to show how
these various injuries or deaths are related to the same
transaction or occurrence. The complaint is totally devoid of
any basis for joinder or any allegations showing how each
defendant is liable to each plaintiff.
The complaint is an abuse of federal procedures and
rules governing joinder and pleading requirements under
Federal Rules of Civil Procedure 9(b), 19 and 20. Indeed, it
is so abusive that it may well invoke sanctions under Rule
11. Plaintiffs’ counsel cannot under any stretch of legal
imagination, let alone competent pleading practice, file a
single action joining all of these parties on the sparse
allegations of this complaint. Nor can plaintiffs avoid the
separate filing fees, venue and, perhaps, jurisdictional
requirements by filing a single action that is really 1,000
separate actions.
The court intends to spare the judicial system and
defendants from the plethora of papers, and motions for
sanctions, likely to ensue such an improper pleading by sua
sponte dismissal of this action without prejudice to the
plaintiffs each filing separate actions in the appropriate court
against the proper defendant or defendants. If any of these
actions are filed in this court, plaintiffs’ counsel shall
associate local counsel who is a member of the bar of this
court before proceeding any further.
Therefore,
IT IS HEREBY ORDERED that this action is
DISMISSED without prejudice in accordance with the
foregoing.
IT IS SO ORDERED.
DATED: SEP 27 1993 S/
MARILYN HALL PATEL
United States District Judge
- 24ra -
APPENDIX F
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
NORMAN ABAR, et al., )
)
)
Plaintiffs, )
)
)
)
)
AC and §, Inc., et al., )
)
)
Defendants.)
)
CIVIL NO. 93-1120(G)
(BTM)
ORDER TO SHOW
CAUSE RE:
FACTUAL AND LEGAL
BASES FOR THE
INSTANT ACTION AND
STAYING THE
PROCEEDINGS
The complaint in this matter presents on its face
serious questions regarding not only the jurisdiction of this
Court, but whether this Court has any connection with the
claims and whether there has been compliance with the
Federal Rules of Civil Procedure.
Additionally, it appears that the instant action is
possibly appropriate for transferal by the Multidistrict
Litigation Panel.
Therefore it is ordered that Alan Kellman, the
attorney who signed this petition, appear, either in person or
telephonically, before the undersigned Judge at 10:30 a.m. on
November 1, 1993, to show cause why this action should be
docketed in this Court. Mr. Kellman should demonstrate,
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inter alia, the factual and legal basis for his contentions: (1)
that counsel actually represents the 994 individuals
designated as Plaintiffs and identified by what appears to be
their social security numbers; he should also indicate whether
they are properly joined pursuant to Rule 20 of the Federal
Rules of Civil Procedure; (2) that the named Defendants are
amenable to the jurisdiction of this Court; (3) that venue is
proper in this district; (4) that the instant action is not an
action that may properly belong in the United States District
Court for the Eastern District of Pennsylvania, before the
Honorable Charles R. Weiner, in accordance with 28 U.S.C.
§ 1407; and (5) that the instant action is not one already
subject to transferal by the Multidistrict Litigation Panel.
In addition, because there are 93 Defendants in the
instant action, and because there are numerous problems
involved in coordinating the litigation should it remain in
this District, this Court stays all proceedings until 30 days
after the order this Court will issue subsequent to the
November | hearing. The Clerk of the Court for the Southern
District of California is ordered not to accept filings in the
instant action until the stay is lifted.
IT IS SO ORDERED.
Date: 9/8/93 S/
JOHN S. RHOADES, SR.
UNITED STATES DISTRICT
JUDGE
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APPENDIX G
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
CREIGHTON MILLER, et al.,) CIVIL NO. 93-1119(R)
(RCM)
Plaintiffs,
ORDER TO SHOW
CAUSE RE:
FACTUAL AND
LEGAL BASES FOR
THE INSTANT
ACTION AND
STAYING THE
PROCEEDINGS
AC and §, Inc., et al.,
Defendants.
The complaint in this matter presents on its face
serious questions regarding not only the jurisdiction of this
Court, but whether this Court has any connection with the
claims and whether there has been compliance with the
Federal Rules of Civil Procedure.
Additionally, it appears that the instant action is
possibly appropriate for transferal by the Multidistrict
Litigation Panel.
Therefore it is ordered that Alan Kellman, the
attorney who signed this petition, appear, either in person or
telephonically, before the undersigned Judge at 10:30 a.m. on
November 1, 1993, to show cause why this action should be
docketed in this Court. Mr. Kellman should demonstrate,
inter alia, the factual and legal basis for his contentions: (1)
- 27ra -
that counsel actually represents the 370 individuals
designated as Plaintiffs and identified by what appears to be
their social security numbers; he should also indicate whether
they are properly joined pursuant to Rule 20 of the Federal
Rules of Civil Procedure; (2) that the named Defendants are
amenable to the jurisdiction of this Court; (3) that venue is
proper in this district; (4) that the instant action is not an
action that may properly belong in the United States District
Court for the Eastern District of Pennsylvania, before the
Honorable Charles R. Weiner, in accordance with 28 U.S.C.
§ 1407; and (5) that the instant action is not one already
subject to transferal by the Multidistrict Litigation Panel.
In addition, because there are 93 Defendants in the
instant action, and because there are numerous problems
involved in coordinating the litigation should it remain in
this District, this Court stays all proceedings until 30 days
after the order this Court will issue subsequent to the
November 1 hearing. The Clerk of the Court for the Southern
District of California is ordered not to accept filings in the
instant action until the stay is lifted.
IT IS SO ORDERED.
Date: 9/8/93 S/
JOHN S. RHOADES, SR.
UNITED STATES DISTRICT
JUDGE
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NTO NSO MAE 8-8 5
Pee dates mee
ee
WT a ee
APPENDIX H
LEONARD C. JAQUES
Alan Kellman (#92442)
Maritime Asbestosis Legal Clinic
1570 Penobscot Building
Detroit, MI 48226 FILED JULY 27 1993
(313) 961-1080 US DISTRICT COURT OF
CALIFORNIA
Attorneys for Plaintiff
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
Creighton E. Miller, Administrator of the Estate of :
Isaac W. Abraham, Sr. (DOD 10/18/92) (181-20-7879)
Joe C. Adams (DOD 09/19/92) (246-22-1872)
Francisco Agosto (DOD 03/15/91) (084-22-5340)
Norman L. Aikman (DOD 09/06/92) (068-01-0281)
William Aldridge, Jr. (DOD 08/17/91) (354-14-1358)
Knowlton Allen (DOD 01/06/92) (258-30-1581)
Leon R. Allie (DOD 03/03/91) (534-26-6938)
John A. Anderson (DOD 12/20/91) (438-48-6134)
Scott E. Anderson (DOD 09/20/90) (296-14-0197)
Tyree E. Anderson (DOD 11/17/90) (569-16-8687)
William O. Anderson (DOD 06/22/91) (531-10-3963)
Pedro M. Angoco (DOD 07/22/91) (553-52-7965)
Angel Aponte Martinez (DOD 01/18/91) (428-40-4387)
Louis L. Arena (DOD 06/12/91) (437-05-9950)
Gene L. Armstrong (DOD 09/21/91) (500-18-0145)
Robert A. Art (DOD 07/17/92) (566-01-1232)
Edward M. Aubuchon (DOD 02/01/91) (489-26-9964)
Octave A. Auguste (DOD 08/31/90) (127-22-3180)
Guillermo B. Baez, Sr. (DOD 06/12/92) (286-26-2595)
- 29ra -
Lloyd R. Baker (DOD 06/25/91) (454-18-3578)
Andres Banuchi (DOD 12/14/90) (092-07-4032)
George D. Barnes, Sr. (DOD 03/03/92) (307-14-0621)
Andrew M. Barnett (DOD 10/07/90) (443-14-0957)
Anthony J. Baroni (DOD 07/06/91) (438-07-1533)
Alton L. Beals (DOD 09/05/91) (239-07-8314)
Joao A. Belchior, Jr. (DOD 08/02/91) (129-14-7181)
Charlie P. Benson (DOD 07/08/91) (249-18-1371)
Allan F. Berlund (DOD 10/13/90) (547-26-1910)
Ferdinand Bernard (DOD 02/12/91) (437-12-4105)
James Berry (DOD 04/11/91) (462-40-8414)
Clarence W. Beverly (DOD 09/28/90) (262-24-1958)
Dalzell Beverly (DOD 06/16/91) (265-32-4178)
Harry A. Bishop, Sr. (DOD 08/30/92) (237-12-7951)
William R. Blecker (DOD 10/16/90) (535-16-9143)
Ronald R. Bloomquist (DOD 01/27/93) (381-16,8059)
Edward W. Bogden (DOD 01/24/91) (179-12-7186)
J.B. Booker (DOD 01/29/92) (450-48-9935)
Warren J. Boston (DOD 01/19/92) (421-16-6310)
Elijah Boyd (DOD 11/20/91) (439-16-7036)
Robert L. Bradford, Jr. (DOD 10/24/92) (217-05-2036)
James R. Bradley (DOD 11/09/91) (418-12-1132)
Creighton J. Brady (DOD 06/27/92) (261-05-7625)
Daniel G. Brennan (DOD 04/17/92) (389-50-1714)
Howard Brigman (DOD 09/08/91) (240-18-3673)
Henry P. Brown (DOD 03/26/91) (555-28-1610)
Lester Brown (DOD 04/08/91) (526-07-7760)
Clarence Brown, Sr. (DOD 08/18/92) (435-28-3937)
William Browa (DOD 01/17/91) (261-05-3096)
Roy J. Bru (DOD 10/09/90) (421-16-9550)
Adam Burghardt (DOD 10/24/90) (523-22-1189)
Charles E. Burns (DOD 09/01/90) (264-12-8824)
Eari M. Burris (DOD 10/11/90) (705-12-6795)
Walter G. Butterton (DOD 01/01/91) (224-20-8023)
Manuel Cabrera Ramos (DOD 09/01/90) (084-22-1649)
- 30ra -
* tet EILEAPOCLAL ELLIS REAL EL DEES ED BEE OY 5 OAD sp
Benigno U. Calban (DOD 09/25/91) (575-03-0893)
Frank L. Calvin (DOD 10/12/91) (127-22-5028)
John G. Campbell (DOD 03/26/92) (569-40-0987)
Joseph B. Campbell (DOD 03/29/92) (198-05-0439)
Esteban Canales (DOD 11/24/91) (127-22-5437)
Theodore J. Canonge, Jr. (DOD 03/05/92) (434-32-0661)
Alfredo E. Cardenas (DOD 02/23/91) (131-03-1603)
David T. Carr (DOD 03/10/92) (099-16-2929)
Robert P. Carry (DOD 09/27/90) (166-12-8940)
Robert G. Carter, Sr. (DOD 10/07/90) (252-18-4567)
Harry M. Cartwright (DOD 08/23/92) (481-14-0473)
Eduardo Casas (DOD 02/26/91) (108-18-2132)
Paul E. Cassidy (DOD 01/27/91) (401-24-9562)
Emesto A Castillo, Sr. (DOD 04/10/92) (080-20-1274)
Carter C. Chambers (DOD 09/15/92) (573-03-9989)
Francis Chapman (DOD 04/30/91) (086-12-2302)
Herbert C. Chattom (DOD 07/29/92) (421-20-5348)
Ken Nien Chen (DOD 01/02/91) (065-22-3955)
Bing Hong Chin (DOD 11/05/90) (078-20-4920)
Sterling Chin (DOD 01/26/91) (438-26-5696)
Eddie J. Christy (DOD 08/20/91) (386-32-7153)
Bernard J. Clark (DOD 11/18/91) (588-20-7872)
Victor A. Claudio (DOD 08/20/91) (119-22-3501)
John H. Cline (DOD 12/17/90) (561-38-2307)
Billy W. Connett (DOD 03/22/92) (374-14-9607)
Peter J. Corvia (DOD 11/08/90) (551-28-9735)
Harold H. Coulter (DOD 08/03/91) (505-20-3514)
Robert J. Cranston (DOD 03/03/92) (037-16-1674)
James W. Cross (DOD 10/11/90) (210-22-6054)
Percy Cruikshank, Jr. (DOD 10/30/90) (568-30-1416)
Armando Cruz Berrios (DOD 02/27/92) (061-24-5372)
Edward R. Culp (DOD 05/10/92) (263-12-7162)
Maurice F. Culp (DOD 04/28/91) (164-12-2687)
Silas Cummings, Sr. (DOD 05/28/92) (436-10-6898)
Harry J. Curtin (DOD 11/11/90) (136-16-4000)
- 3lra-
Manuel Da Cruz (DOD 02/02/91) (119-22-1918)
Floyd E, Dare (DOD 01/30/92) (564-20-2563)
Clarence Davis (DOD 02/18/91) (264-58-4961)
Rene De Bellaistre (DOD 09/17/90) (105-22-4400)
Ricardo Deas (DOD 10/01/90) (260-18-5828)
Jose DeOliveira (DOD 11/02/91) (084-18--3 158)
Daniel S. DeShields, Sr. (DOD 07/23/91) (064-09-0572)
John W. DeVaux, Sr. (DOD 03/18/91) (213-07-0827)
Clyde A. Dickie (DOD 01/16/92) (014-22-5115)
Chin Do Yee (DOD 11/12/90) (027-16-1727)
Pablo P. Dolendo (DOD 02/18/91) (097-18-8026)
Sidney L. Dolese (DOD 08/09/90) (436-18-9663)
Angelo H. Donisi (DOD 12/28/90) (148-14-6446)
Dave Douglas (DOD 03/16/91) (257-10-7972)
Cornelius J. Downey (DOD 02/15/91) (111-10-6658)
James M. Dunker (DOD 06/06/91) (249-20-4410)
Norman G. Ebanks (DOD 11/01/91) (094-24-6763)
Anders I. Ellingsen (DOD 04/16/91) (460-46-91 12)
Theodore Elmore (DOD 01/04/92) (218-01-5920)
John W. English (DOD 08/19/90) (03 1-16-2972)
Alfred C. Ethridge (DOD 01/01/91) (423-30-9511)
Elegy L. Etter, Sr. (DOD 02/19/92) (450-16-6366)
Julio Evans De La Cruz (DOD 08/08/90) (051-18-3819)
James Evans (DOD 04/01/92) (251-34-3625)
Louis B. Evelyn (DOD 09/14/90) (081-14-0970)
Laurenco Fernandez Pereida (DOD 12/24/91) (063-30-6977)
Harriet A. Figueroa (DOD 03/06/91) (089-22-7367)
Ralph E. Fitzpatrick (DOD 09/19/90) (224-01-8983)
Hugh J. Fitzpatrick, Sr. (DOD 05/21/92) (019-14-6707)
Boniface Fontenelle (DOD 12/09/91) (119-22-2141)
George R. Fortes (DOD 09/12/90) (03 1-14-8432)
Harold R. Foster (DOD 11/13/90) (058-14-9369)
Edward E. Fowler (DOD 07/21/91) (246-38-5338)
Charles H. Gaboury (DOD 07/11/92) (541-14-2801)
Joseph Gallardo (DOD 09/13/90) (063-20-5664)
- 32ra -
ig
Roberto Gamundi (DOD 11/19/92) (436-60-5518)
Jesus Garcia Fernandez (DOD 09/20/90) (265-14-2502)
Tomas Garcia (DOD 08/20/92) (055-22-2099)
Dedrick Garthus (DOD 12/12/91) (470-09-2600)
John Gasowski (DOD 11/04/90) (054-18-4215)
Paul J. Gaydos (DOD 04/02/91) (190-05-5889)
Warren E. George (DOD 10/06/91) (439-54-4395)
Cecil Gilbert, Sr. (DOD 04/06/92) (460-10-9295)
Harold G. Gohl (DOD 05/10/92) (386-26-6930)
Miguel Gonzalez Lopez (DOD 02/20/91) (073-12-6459)
Zannie E. Goode (DOD 02/16/92) (418-18-9010)
Cornelius J. Gordon (DOD 11/20/90) (457-16-9586)
George C. Gordon (DOD 07/11/91) (558-03-7274)
Charles Gottshalk (DOD 09/01/91) (129-12-0692)
Leon J. Green (POD 12/04/90) (547-16-2346) .
Gene Greer (DOD 08/17/90) (533-03-7096)
Jose Guerrero (DOD 11/30/91) (119-22-8954)
Juan G. Gutierrez (DOD 01/09/92) (458-22-8846)
Roy Hadley, Sr. (DOD 04/15/91) (451-22-6487)
Arthur D. Haines (DOD 07/25/92) (391-24-0535)
Roberto Hannibal (DOD 05/14/91) (075-22-8083)
Bror E. Hanson (DOD 04/25/92) (134-24-1495)
Willie C. Harrell, Jr. (DOD 02/04/92) (231-01-5553)
William R. Harrell (DOD 02/11/92) (244-20-2832)
Burley G. Harris (DOD 07/29/90) (550-14-0836)
Cecil Harris (DOD 11/22/91) (452-26-1564)
John O. Harris (DOD 01/18/91) (223-32-3150)
Thomas S. Harris, Jr. (DOD 09/15/91) (226-116-7495)
Thomas C. Harris, Sr. (DOD 08/07/91) (222-05-1990)
Willie S. Harris (DOD 04/25/92) (261-32-8980)
Ashton M. Harrison, Sr. (DOD 09/23/90) (128-20-9389)
Clarence A. Hartnett (DOD 05/4/92) (024-14-0995)
Eugene F. Hathy (DOD 09/05/91) (268-01-3739)
John H. Haus (DOD 06/18/91) (109-12-4402)
Calvin C. Hayes (DOD 09/01/90) (423-64-7333)
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Solomon N. Hayes (DOD 12/16/91) (232-30-0642)
James F. Haynes (DOD 07/28/91) (535-16-6446)
Leon S. Haynes (DOD 10/24/90) (266-10-4210)
Charles Helmstetter (DOD 04/26/91) (437-32-8580)
James B. Hendricks (DOD 10/12/91) (424-14-0501)
George Hendrix (DOD 12/15/91) (213-14-3698)
Sergesman N. Hendrix (DOD 08/24/90) (424-30-3592)
Warren J. Henry, Jr. (DOD 03/11/91) (433-40-3338)
Frank Hernandez Lozada (DOD 06/12/91) (217-14-0305)
Homer Hernandez (DOD 02/01/91) (063-22-0375)
Ralph A. Hernandez (DOD 10/14/91) (086-16-2002)
Irvine Herne, Jr. (DOD 08/11/90) (249-30-4501)
Isadore J. Hiller (DOD 12/19/91) (219-01-6465)
Edwin G. Hohman (DOD 11/26/92) (483-16-6932)
William G. Holley (DOD 04/05/91) (462-48-3769)
Carl N. Holm (DOD 12/22/91) (483-10-5638)
Wayne J. Holman (DOD 02/16/91) (280-12-0324)
Frederick M. Hopkins (DOD 09/12/91) (401-26-7161)
Arne W. Hovde (DOD 10/13/92) (219-16-3321)
Joseph E. Howe (DOD 05/21/91) (060-28-2318)
Harold R. Huhndorf (DOD 09/16/90) (526-16-7114)
Samuel Hunter (DOD 06/04/91) (452-48-5028)
Joseph D. Hurley (DOD 12/13/90) (126-01-2987)
Kenneth R. Itter (DOD 07/23/91) (537-14-3532)
Ivory Jackson (DOD 09/18/91) (437-01-5921)
Ervin M. Jackson, Jr. (DOD 09/12/91) (418-56-2643)
Kara C. Jenkins (DOD 08/01/90) (255-224-5119)
Richard D. Johns (DOD 05/17/92) (235-22-5602)
Herman R. Johnson (DOD 03/20/91) (437-70-2780)
Orville W. Johnson (DOD 06/12/92) (219-01-5952)
Simon J. Johnson (DOD 07/28/90) (262-22-7335)
Woodrow Johnson (DOD 01/04/91) (374-22-5210)
Rudolph E. Johnston (DOD 08/30/90) (459-03-3 149)
H. B. Jones (DOD 02/03/92) (429-32-4740)
Hughie Jones, Jr. (DOD 09/27/91)(205-14-6417)
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Thomas Jones, Jr. (DOD 09/07/91) (266-09-9216)
Carl C. Jorgensen (DOD 10/15/91) (437-14-3519)
Wilford Joseph (DOD 01/03/91) (460-10-2059)
Charles Khedoo (DOD 01/06/92) (113-20-0730)
Edward J. Kilford, Jr. (DOD 10/16/92) (543-01-2114)
Retis C. King (DOD 04/02/91) (235-36-5422)
Mark T. Kinto (DOD 04/13/91) (212-34-8864)
Elias A. Kirkland (DOD 08/19/90) (436-10-3650)
James U. Knowles (DOD 03/24/91) (077-12-9995)
Edward A. Kohl (DOD 12/15/90) (266-20-1051)
Norman P. Kottemann (DOD 09/08/90) (435-22-2809)
Richard Kowalski (DOD 08/06/90) (376-32-1438)
Michael Kozusko (DOD 04/05/92) (063-22-0826)
Edward J, Kramer (DOD 01/19/91) (153-01-1736)
Henry G. Lai (DOD 06/10/92) (556-26-8029)
Chris F. Larsen (DOD 12/20/91) (133-07-2413)
Linwood L. Lawton (DOD 09/03/90) (224-30-7935)
James D. Lewis (DOD 10/24/91) (282-24-3085)
Jason Llanis (DOD 01/13/92) (132-05-3504)
Luis Lockarno (DOD 01/30/91) (435-40-7639)
Andrew S. Lucien (DOD 06/17/92) (433-28-8529)
Thomas S. Maldonado (DOD 04/02/91) (050-05-9335)
Bobby D. Mangold (DOD 07/01/91) (234-42-7617)
Joseph M. Manini (DOD 01/26/91) (576-07-2471)
Eddy Markle (DOD 12/30/91) (576-12-0504)
Ramon Martinez Castro (DOD 10/23/90) (126-26-4403)
Michael P. Masek (DOD 08/31/92) (263-28-2050)
Richard H. Mawhorter (DOD 11/11/91) (293-16-0831)
John J. McCaffery (DOD 12/24/90) (568-28-5792)
Richard McCants (DOD 10/12/90) (417-12-2193>
John A. McCarville (DOD 11/28/90) (535-16-5271)
William R. McClintic (DOD 02/11/91) (559-24-4314)
William L. McCoy, Sr. (DOD 10/04/91) (227-32-4240)
Mack J. McGee, Jr. (DOD 09/28/90) (557-32-8969)
Roger E. McKenna (DOD 03/21/91) (559-22-8719)
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Thomas H. McQuay (DOD 08/04/90) (263-13-1136)
Sidney Meaux (DOD 09/30/90) (094-12-0494)
David Medina, Sr. (DOD 04/13/91) (433-40-8220)
Walter P. Meisner (DOD 08/13/90) (570-12-3029)
Agathangelos G. Melissnaratos (DOD 10/24/90)
(554-322-4895)
Oswaldo Meron (DOD 05/29/92) (063-22-8659)
Robert L. Michalscheck (DOD 09/14/92) (531-34-1109)
William A. Milchling (DOD 05/20/91) (213-12-8556)
Lewis Miller (DOD 01/23/91) (298-16-8102)
Merle V. Milton (DOD 01/18/91) (313-22-9467)
James B. Mitchell, Sr. (DOD 07/16/91) (254-22-9854)
Leroy N. Mobley (DOD 03/07/91) (488-18-1686)
Macedonio Montoya (DOD 08/16/91) (455-32-2195)
John E. Moore (DOD 04/21/91) (053-18-8142)
Charles I. Moore, Sr. (DOD 12/15/91) (261-20-8654)
John C. Moran (DOD 11/28/90) (428-24-8508)
Edward L. Morelock (DOD 02/14/91) (283-22-8720)
Henry H. Morris (DOD 09/17/91) (247-38-3132)
Clarence Morse, Jr. (DOD 09/05/90) (418-18-2827)
Theodore Murrah (DOD 01/14/93) (418-18-9069)
Bill J. Myers (DOD 05/03/91) (387-20-3231)
Joe M. Napier (DOD 09/04/91) (267-32-8498)
Robert E. Neal (DOD 12/07/90) (249-10-4845)
George R. Nelson (DOD 05/28/91) (387-24-6137)
Joe W. Norman (DOD 12/01/90) (238-20-8723)
Andres Nunez (DOD 08/16/91) (113-20-8839)
Ismael C. Nunez (DOD 05/13/92) (349-24-8134)
Leopoldo Ojeda Morales (DOD 12/07/90) (219-09-1008)
John Onga (DOD 02/03/91) (132-10-7932)
Bernard F. Overstreet (DOD 12/09/91) (421-07-8014)
Don C. Paedae, Jr. (DOD 03/15/92) (493-10-7027)
Augustus D. Palmer (DOD 07/05/91) (075-18-4643)
Joseph Papu (DOD 03/28/91) (576-14-6465)
James R. Parker (DOD 01/12/92) (425-36-91 14)
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Joseph A.C. Patenaude (DOD 10/17/91) (721-03-7033)
Felimon Peniaranda (DOD 02/18/91) (558-20-1271)
Joaquin Pereira (DOD 09/05/90) (155-16-9640)
Luis J. Perez (DOD 01/16/91) (467-26-7913)
Joseph P. Perrina (DOD 06/07/92) (103-12-9798)
Moses H. Perry, Jr. (DOD 03/22/91) (416-30-1942)
Eugene G. Peters (DOD 10/17/92) (398-10-5819)
Leroy L. Peters, Sr. (DOD 11/25/91) (219-10-4772)
Burl W. Prichard (DOD 10/08/90) (409-03-4583)
Charles C. Pritchard (DOD 09/14/92) (269-12-0495)
William H. Pritz (DOD 10/07/90) (545-22-8694)
Adriano Quinones Martinez (DOD 09/24/91) (582-03-4095)
Alpheus Rainey (DOD 07/11/91) (097-07-9491)
Jan Rani (DOD 12/20/90) (132-01-6912)
Herbert J. Reichert, Jr. (DOD 04/03/91) (213-26-3995)
Jose C. Reyes Maldonado (DOD 08/17/90) (092-12-1472)
Felipe M. Reyes, Sr. (DOD 11/10/91) (423-01-9125)
Marcus A. Reynoza (DOD 08/10/90) (566-18-8874)
William H. Rhone (DOD 06/07/91) (422-45-5407)
Jerome M. Rice (DOD 04/12/91) (421-16-6655)
James Q. Rice, Sr. (DOD 09/25/92) (229-16-0230)
Nathaniel F. Richard (DOD 12/06/91) (434-36-0282)
Emiliano Rios Toro (DOD 02/25/91) (133-01-9119)
Esteban Rivera Carreras (DOD 06/07/91) (083-26-0740)
Benjamin E. Robbins (DOD 02/16/92) (267-50-643 1)
John M. Rockstroh (DOD 04/0791) (220-01-3026)
George Rodgers (DOD 05/30/91) (126-13-7815)
Louis Rodock (DOD 10/11/90) (097-14-4253)
Angel Rodriguez Martinez (DOD 03/25/92) (219-09-2760)
Malcolm L. Rogers (POD 08/23/90) (564-32-0095)
Winston W. Rumph (DOD 08/06/92) (250-01-1878)
Leo A. Scheidt (DOD 01/09/92) (487-22-1531)
Prank Schmidt (DOD 07/31/90) (223-20-7616)
Richard F. Schuettner (DOD 08/26/92) (155-10-9879)
Emil H. Schultz (DOD 10/11/92) (137-10-9155)
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Fitzgerald Segree (W D 07/26/91) (119-07-4660)
Leo Selico, Sr. (DOD 04/03/92) (439-26-3775)
Gustavo Serrano (DOD 10/01/90) (130-07-5356)
MacDonald Serrette (DOD 08/16/91) (416-34-0844)
Jerome A. Severe (DOD 01/01/93) (437-07-9286)
Joseph W. Shierlock (DOD 11/27/91) (249-16-4527)
Biliran O. Sierra (DOD 09/08/92) (533-26-2541)
Lawrence J. Silva (DOD 11/08/90) (019-18-2675)
Thomas Sims (DOD 02/08/91) (422-03-2297)
Pat J. Sing (DOD 06/23/92) (552-32-4382)
Walter J. Slade (DOD 10/22/90) (026-07-6005)
Joseph F. Smith (DOD 02/24/91) (052-12-8827)
Nelson Sotero Vazquez (DOD 05/17/91) (106-26-5860)
Joseph Souza (DOD 05/04/92) (027-20-2349)
Albert W. Spanraft (DOD 01/22/92) (355-12-0128)
Lanier Speed (DOD 11/18/90) (421-26-3024)
Homer Starling (DOD 01/02/95) (424-01-7089)
James C. Stewart (DOD 05/19/92) (422-05-9406)
John Stratidakis (DOD 08/13/91) (080-20-7376)
Floyal L. Suter (DOD 01/04/91) (443-34-4134)
William D. Swallows (DOD 08/11/92) (568-20-0242)
Joseph A. Tanguay (DOD 08/01/90) (059-24-0197)
Nels J. Tanula (DOD 08/27/91) (398-07-8514)
Joseph R. Taylor (DOD 08/03/90) (524-28-3524)
Earl H. Terry (DOD 05/26191) (286-18-6085)
Theodore M. Tetonis (DOD 08/07/90) (140-18-6340)
Eugene S. Thomas (DOD 06/05/91) (267-26-7809)
George E. Thompson (DOD 03/02/92) (552-22-1749)
Clyde D. Tibbs (DOD 12/13/90) (463-24-9737)
Heber C. Tolar (DOD 11/19/90) (553-14-8395)
Nicholas Torres Arieta (DOD 06/03/91) (100-12-2280)
William C. Traser (DOD 12/09/90) (223-03-9742)
Alphonse J. Tremer, Jr. (DOD 08/05/90) (416-18-1952)
Richard L. Trexler (DOD 03/05/92) (217-14-4868)
Arthur S. Turner (DOD 07/27/90) (545-28-4224)
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Chris L. Turner (DOD 11/06/91) (452-54-3751)
John E. Ubl, Sr. (DOD 05/15/92) (297-07-3857)
Roy C. Uhl (DOD 01/31/92) (317-22-0988)
Henry Uribe (DOD 12/30/91) (569-30-4504)
Anneliese M. Valentine Domingo (DOD 03/03/92)
(078-26-1649)
Celestino Valverde (DOD 02/25/91) (453-18-1354)
Lawrence J. Vanderventer (DOD 04/21/91) (372-14-3531)
Constant S. Vandewouwer (DOD 08/16/91) (1 15-07-7206)
Bernie Vaughn (DOD 07/06/91) (223-18-2338)
Armindo Vidot (DOD 08/14/90) (189-24-5352)
Aquilino S. Villariza (DOD 01/04/91) (124-14-5077)
William G. Vogel (DOD 10/18/90) (064-16-0152)
Hans W. Wagner (DOD 09/02/91) (559-18-7960)
William M. Wagstaff (DOD 12/24/91) (086-16-3369)
George C. Walker (DOD 01/16/91) (230-22-3045)
Floyd W. Wallace (DOD 04/20/91) (217-18-3968)
Ward M. Wallace (DOD 12/22/91) (225-18-5674)
George L.A. Walrond, Sr. (DOD 07/10/91) (084-22-6986)
Carl L. Ward, Sr. (DOD 07/17/91) (413-09-4519)
Marceline I. Warden (DOD 02/07/91) (23 1-28-8848)
Bernard L. Weiss (DOD 12/12/91) 1375-40-9105)
Andrew W. Wells, Jr. (DOD 05/22/92) (266-05-0383)
Raymond Whaley, Jr. (DOD 10/05/92) (251-34-2891)
Joe Murry Wilkerson, Sr. (DOD 05/08/91) (421-16-6642)
Alease Williams (DOD 08/02/90) (429-03-6246)
Elmo Williams (DOD 10/11/91) (450-01-5054)
John F. Williams (DOD 09/10/91) (545-12-1825)
Raymond R. Williams (DOD 10/09/90) (263-14-5965)
Robert Williams (DOD 11/28/90) (536-16-1445)
Russell N. Williams (DOD 04/08/92) (129-14-3996)
Hulos A. Willie (DOD 02/08/91) (090-14-5906)
James Wilson (DOD 09/03/91) (436-26-4027)
Robert H. Witherspoon (DOD 08/18/90) (563-26-4008)
John Woodberry (DOD 09/11/91) (248-36-7840)
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Enrique Zapata (DOD 07/06/91) (460-16-9723)
Joseph Zare (DOD 10/25/91) (155-12-2929)
Russell W. Zeller (DOD 11/22/91) (554-46-7834)
Plaintiffs (370 Decedents)
Civil No
. oe
ACandS. Inc., ACMC f/k/a National Gypsum Company,
Acme Brick Company, Acorn Iron & Supply Co.,
Allis-Chalmers Corporation, The Allpax Co. Inc., American
Ship Building Co., Anchor Packing Co., Argo Intl. Corp.,
Armstrong World Industries, The Auburn Mfg. Co., Aurora
Pump Division of General Signal Corp., Bethlehem Steel
Corp., Bigelow-Liptak Corp., A. B. Boyd Co., Bryan Steam
Corp., The Carborundum Co., CertainTeed Corp., Champion
International, Chemseco, Coffin Pump, Inc., Coltec
Industries, Inc., Alfred Conhagen, Inc., Crosby Steam &
Valve Co., Crown, Cork & Seal Co., Inc., Dana Corp., The
Darcoid Co. Inc., Donlee Technologies, Inc., Durabla Mfg.
Co., Everlasting Valve Co., Excelsior, Inc., Fel-Pro
Incorporated, Felt Products Incorporated, Fibreboard Corp.,
Flexitallic, Inc., Flintkote Co., GAF Corp., Gatke Corp.,
General Cable Co., General Refractories, Goodall Rubber
Co., B. F. Goodrich, Goodyear Tire & Rubber Co., Goulds
Pumps, Inc., A.P. Green Industries, Inc., Greene Tweed &
Co., Hajoca Corp., Harbison- Walker Refractories Group,
The Home Rubber Company, Indian Head Industries, Inc.,
Ingersoll-Dresser Pump, Ingersoll-Rand Corp., James Walker
Mfg. Co., Janos Industrial Insulation Corp., John Crane Inc.,
La Favorite Industries, Inc., The Lunkenheimer Co., Melrath
Gasket, Inc., Morrison Bros. Co., Mortell Company, Noland
Company, North American Refractories Co., Norton Co.,
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The Okonite Co., Owens-Corning Fiberglas Corp., Owens-
Illinois, Inc., P P G Industries, Inc., Pecora Corp., Phoenix
Speciality Manufacturing Co., Inc., Pilot Packing Co., Inc.,
Pittsburgh Corning Corporation, Plibrico Co., Preferred
Utilities Mfg. Corp., Quaker Construction Products, Inc.,
Quaker Rubber Company, Quigley Co., Inc., Sherwin-
Williams Co., Shook & Fletcher Insulation Co., Skinner
Engine Company, Inc., T & N Industries Inc., Union Carbide
Corporation, United States Gypsum Co., USX Corp.,
Vellumoid, Inc., Viking Pump, Inc., Warren Pumps, Inc.,
Zimmerman Packing & Mfg., Inc.
Defendants (93)
COMPLAINT
Plaintiffs say:
l. This Complaint is brought under Rule 20 of
the Federal Rules of Civil Procedure and jurisdiction of this
cause lies within the aegis of this Honorable Court by virtue
of Article III, Section 2 of the Constitution of the United
States, this cause being an admiralty and maritime claim,
under the general admiralty and maritime law; and diversity
of citizenship is asserted under 28 U.S.C. §1332, when
applicable as to respective party Defendants in relation to
each particular party plaintiff.
Z. Plaintiffs plead in the alternative upon
occurrence of a situation as stated below. Plaintiffs assert
that this is an admiralty and maritime claim within the
meaning of Rule 9(h) of the Federal Rules of Civil
Procedure, although here Plaintiffs rely on the diversity
statute as a basis for maritime jurisdiction of the Court
whereby each Plaintiff is alleged to be of a different
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domiciliary than that of each Defendant, and thus a maritime
Cause is asserted to be tried to jury; but let it be known that in
the event the fortuity of each diversity of citizenship of any
plaintiff as to respective defendant should be evinced, then
under such occasion this pleading contemplated as pro tanto
the invocation of Rule 9(h) of Federal Rules of Civil
Procedure as to such party defendant, reserving status quo as
to all other defendants.
As an example of such fortuity where, unbeknownst
to the pleader plaintiff X is of the same domicile and state
citizenship as are defendants Y and Z, then as to those two
defendants the Court alone under Rule 9(h) shall try all
issues, but as to all other defendants, it remains a jury trial.
3. Plaintiff, Creighton E. Miller, Administrator
of the Estates of Diecedents, set forth herein, is a duly
appointed repreventative of the respective estate by the
Probate Court of the County of Cuyahoga, Cleveland, Ohio.
4. At all times relevant herein, Defendants
designed, manufactured, sold or otherwise supplied for use
of shipowners abroad vessels harmful toxins and carcinogens
including asbestos and asbestos-containing products or
machinery and equipment on which the asbestos products
were placed as contemplated by and or otherwise for
placement on vessels upon which Plaintiffs or Plaintiff's
Decedents served during periods of time when the respective
mariners as crewmen were exposed to their detriment to the
afore-stated chemicals and products, suffering injury to their
person or death of their being as the case may have resulted.
5. As a direct and proximate result of said
exposure to asbestos products and asbestos-containing
products, Plaintiffs or Plaintiff's Decedents suffered
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traumatic affliction of anatomical disorder, structural
changes, pulmonary diseases inclusive of which are
asbestosis/ mesothelioma/lung cancer/pneumoconiosis/
chronic obstructive pulmonary disease/colon cancer/stomach
cancer/rectal cancer/kidney cancer/pancreas cancer/pharynx
cancer/brain cancer/other anatomical cancer, et cetera, either
singularly or in combination thereof.
6. Each respective Defendant committed breach
of duty to the Plaintiff-litigants by the negligent failure to
reasonably adhere to safe standards of design and
manufacture and failed to give warnings of the defects of the
products that would result in detriment of the health
exposure of human beings and further committed a breach of
implied warranty of fitness of the respective products for
their intended use.
: F Defendants at all times herein relevant
committee acts and omissions constituting willful and
wanton disregard for the safety of those to whom the
asbestos would foreseeably be exposed with indifference,
reckless disregard and gross negligent conduct, all to the
detriment of persons so exposed including Plaintiffs or
Plaintiff's Decedent herein, all of which amounts to a basis
for punitive damages.
8. As a direct and proximate result of the
negligent and gross negligent acts of Defendants and the
breach of implied warranty aforesaid, Plaintiffs or Plaintiffs
Decedents herein sustained damages as below stated, inter
alia:
As to Plaintiffs:
a. loss of earnings and earning capacity, past and
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future;
b. conscious pain and suffering, past and future;
. exemplary and punitive damages;
d. any and all other compensatory damages as
may be allowed upon proofs.
As to Plaintiff's ecedents:
loss of e. ings and earning capacity during
Plaintiff's Decedents’ lifetime;
b. conscious pain and suffering;
C. loss of support;
d. loss of society and companionship suffered by
the heirs and next of kin of Plaintiff's
Decedents;
e. exemplary and punitive damages; and
f. any and all other compensatory damages as
may be allowed upon proofs.
WHEREFORE, Plaintiff-litigants demand trial by
jury or, in the alternative, by the Court when required, and
judgment of an amount in excess of Fifty Thousand
($50,000.00) Dollars as to each Plaintiff against Defendants,
jointly and severally, and appropriate costs in addition to
punitive damages with respect to each Defendant, in an
amount and denomination to be determined upon
ascertaining during the pendency of this cause the net worth
of each Defendant herein; and Plaintiff further with respect
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to each Decedent, seeks such other further measures of relief
as the Court may determine to be appropriate and just in the
premises.
THE MARITIME ASBESTOSIS
LEGAL CLINIC, a division of THE
JAQUES ADMIRALTY LAW FIRM
BY: S/
LEONARD C. JAQUES
ALAN KELLMAN (#92442)
Attorney for Plaintiff-Litigants
1370 Penobscot Building
Detroit, MI 48226
(313) 961-1080
Dated: July 26, 1993
Jury Demand
Plaintiff hereby demands trial by jury.
THE MARITIME ASBESTOSIS LEGAL
CLINIC, a division of THE JAQUES
ADMIRALTY LAW FIRM
BY: S/
LEONARD C. JAQUES
ALAN KELLMAN (#92442)
Attorney for Plaintiff-Litigants
1370 Penobscot Building
Detroit, MI 48226
(313) 961-1080
Dated: July.26, 1993
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.