Opposition Brief — Newman v. Consolidation Coal Co.

No. 97-1234

In The

Supreme Court of the Anited States

>

October Term, 1997

GEORGE NEWMAN,

CONSOLIDATION COAL COMPANY,

Respondent.

n for Writ of Certiorari to the

gurt of Appeals for the Third Circuit

RESPONDENT’S BRIEF IN OPPOSITION

JAMES R. MILLER

Counsel of Record

DICKIE, McCAMEY

& CHILCOTE, P.C

Attorneys for Respondent

Two PPG Place, Suite 4

Pittsburgh, PA 15222-5402

41” ’

(4 g1-

_- ow &

4.29

ove

DIVISION OF COUNSEL PRESS

i

QUESTIONS PRESENTED FOR REVIEW

Did the district court in an action for exoneration from or

limitation of liability err in undertaking an independent review

of the evidence on the issues of exoneration and limitation

notwithstanding findings of liability of a state court jury, where

Petitioner expressly and voluntarily stipulated that all such issues

would be litigated in the subject proceeding and that no aspect

of the state court judgment would be raised as res judicata?

ii

RESPONDENT’S RULE 29.6 STATEMENT

There are no subsidiaries which are not wholly owned by

Consolidation Coal Company. The following are parent

companies of Consolidation Coal Company:

Rheinbraun US GmbH

Rheinbraun AG

RWE AG

DuPont Energy Company

E.I. du Pont de Nemours and Company

lil

TABLE OF CONTENTS

Questions Presented for Review ...................

Respondent’s Rule 29.6 Statement ................

ES, a

Reasons for Denying the Writ ....................

I. The Petition Should Be Denied Because It Merely

Involves The Re-examination Of Specific Factual

Matters As Determined By The District Court And

Affirmed By The Third Circuit Court Of Appeals.

Review Of The Petition Implicates None Of The

Recognized Bases For This Court Granting

DC hGrcCeeahhe6serwbeee6unesse0e 5

II. The District And Circuit Courts Correctly Held

Newman To What He Agreed By Way Of His Own

Voluntary Stipulation. ....................

i Cot Thee LORUEs bebe endeed 5006000604 66

TABLE OF CITATIONS

Cases Cited:

Acacia Vera Navigation Company, Ltd. v. Kezia, Ltd.,

ve Toe 258 (SG Cie. 1996) .. 2 ccc ccces.

ii

ill

Contents

Page

Alma Motor Company v. Timken-Detroit Axle Company,

Pe ee See CD hr eucee cdeaednnckeusases 8

Carter v. Sea Land Services, Inc., 816 F.2d 1018 (Sth

OR Se ee ee ee Ce er Try 16

Commodity Futures Trading Comm. v. Schor, 478 U.S.

ee EN ccc sce scanvakuiwceeuedsennseree ren 14, 15

Communist Party of the United States v. Subversive

Activities Control Board, 367 U.S. 1 (1961) ...... 8

Complaint of Dammers & Vanderheide, 836 F.2d 750

Ce Ga. BD i o.t'Sdx6 bakes karedeuensenuees 10

Complaint of Port Arthur Towing M/V Miss Carolyn, 42

eR | re rr ey rene 1]

Cooper v. Loper, 923 F.2d 1045 (3d Cir. 1991) ...... 15

Edwards v. Arizona, 451 U.S. 477 (1981) .......... 14

Ergo Science, Inc. v. Martin, 73 F.3d 595 (Sth Cir.

| ee Pre re a Ere 16

Ex Parte Green, 286 U.S. 437 (1932) .............. 10

Faretta v. California, 422 U.S. 806 (1975) ......... 14

Gorman v. Cerasia, 2 F.3d 519 (3d Cir. 1993) ....10, 14, 19

Contents

Page

Guidry v. Sheet Metal Workers Intern. Ass'n, Local No.

Je bs & Fi fe | errr rrr 16

Langnes v. Green, 282 U.S. 531 (1931) ............ 10

Odeco Oil & Gas Co. v. Bonnette, 4 F.3d 401 (Sth Cir.

Pee Sais nso 46.0nedhedneuseneeek aan ame 10

Port of Pasco v. Pacific Island Investigation Co., 324 F.2d

ae Cee Ga, Fee is sen edvens ob bdsensdeenne iO

Preferred RX, Inc. v. American Prescription Plan, Inc.,

05 eee Ge Ge SD 6046660 o eos a cebu ens 15

Province and New York Steamship Co. v. Hill Mfg. Co.,

ee WE ee ME <0 cs caecceuaeeueseeeaces 11

Rice v. Sioux City Memorial Park Cemetery, Inc., 349

RM Fo, rer re ee ee 8

Risher v. United States, 465 F.2d 1 (Sth Cir. 1972) ... 17

Robertson Oil Co. v. Phillips Petroleum Co., 14 F.3d 360

a <sitcisweneknks One eee ketene) 16

Texaco, Inc. v. Williams, 47 F.3d 765 (Sth Cir. 1995)

i abaeehebebn ve bEWka cathe eakeeniensaeeas 10, 14, 19

Texas v. Mead, 465 U.S. 1041 (1984) .............. )

The Monrosa v. Carbon Black Export, Inc., 359 U.S.

180 (1959) ....

vi

Contents

Page

United States v. Ruiz, 73 F.3d 949 (9th Cir. 1996) ... 16

Waring v. Clarke, 46 U.S. (5 How.) 441 (1847) ..... 11

Statutes Cited:

28 U.S.C. § 1292(a)(1) ... 1. eee eee eee 8, 14, 18, 19

28 U.S.C. § 1292(a)(3) 0... eee ee eee 19

46 U.S.C. § 181, ef seg. 2... ccc cece l

GO GE, BFE oc ccccccccnsecesessdusasvcdeces 1, 10

OP Ds GD nn 6s eas ccckidececscnessicveeve< l

United States Constitution Cited:

Seventh Amendment .................00020eeeeee 9, 13

Rules Cited:

Fed. R. Civ. P. Supp. R. F. .. 2... ee eee eee eee eee l

red. R. Civ. P. Supp. R. F(3) ... 2... ccc cee e ee enes 10

Supreme Court Rule 10 .....................0... 9

Other Authority Cited:

Grant Gilmore and Charles L. Black, Jr., The Law of

Admiralty 895 (2d ed. 1975) ...............005. 11

vil

Contents

Page

APPENDIX

Appendix A — Order Of Court In The United States

District Court For The Western District Of Pennsylvania

fg ee ere er eee la

Appendix B — Claimant’s Motion To Vacate Or Dissolve

PECeNOe UNE TE ON oven ccnececessurscveies 4a

Appendix C — Response To Claimants’ Motion To Vacate

Or To Dissolve Injunction And To Stay And

Supporting Memorandum Of Law .............. 8a

Appendix D — Stipulation Of Claimants And Their

TSA we kd aan aw Ohaus Kaa bss cons Roe 25a

Appendix E — Claimant’s Motion To Adopt The Findings

Of The Jury As The Findings Of The Court....... 26a

Appendix F — Excerpted Brief For Appellant ....... 31a

l

STATEMENT OF THE CASE

Petitioner, George Newman (“Newman”), the Claimant in

the present action, and Suzanne Newman, his wife (also an

original claimant, whose claim was later withdrawn), filed an

action against Respondent, Consolidation Coal Company

(“Consolidation”) in the Court of Common Pleas of Allegheny

County, Pennsylvania at No. G.D. 90-00980 (“state court

action”) in January 1990. In their Complaint, the Newmans

sought recovery for personal injuries that Mr. Newman allegedly

Sustained on April 27, 1989 while in the employ of

Consolidation pursuant to the Jones Act, 46 U.S.C. § 688, and

the doctrine of unseaworthiness under the general maritime law.

Mrs. Newman asserted a claim for loss of spousal consortium.

On July 20, 1990, Consolidation commenced the within

action in the United States District Court for the Western District

of Pennsylvania seeking exoneration from or limitation of its

liability with respect to the Newmans’ state court action under

the provisions of the Limitation of Liability Act, 46 U.S.C.

§ 181, et seq. and Fed. R. Civ. P. Supp. R. F. At the time of

filing its Complaint, Consolidation deposited with the district

court a bond in the amount of $120,000, in accordance with

46 U.S.C. § 185, representing the value of Consolidation’s

interest in the M/V Elizabeth and Barge No. MC 1029, the

vessels on which Newman claimed to have been working at the

time of his accident.

Upon filing of Consolidation’s Complaint in the district

court, and in order to protect the court’s admiralty jurisdiction

over this matter, said court, through the Honorable Alan N.

Bloch, entered an Order on July 20, 1990 which. among other

things, ordered that the

institution or further prosecution of any and all suits,

actions, or legal proceedings against Consol or the

2

M/V Elizabeth or Barge No. MC 1029, arising out

of or connected with the aforesaid accident of April

27, 1989, except in this proceeding for exoneration

from or limitation of liability be and the same hereby

are stayed and enjoined. [Appx. 1a, 3a.]

By its application, Judge Bloch’s order specifically enjoined

any further prosecution of the state court action which the

Newmans had previously filed.

After the parties had proceeded with discovery in the

present action for approximately six months, the Newmans, on

January 18, 1991, filed with the district court a Motion to Vacate

or Dissolve Injunction and Stay requesting that the district court

lift the stay that it had ordered on July 20, 1990 so as to allow

the Newmans to pursue their Jones Act, unseaworthiness, and

consortium claims in the state court action. In so requesting,

the Newmans volunteered to stipulate that: (1) the district court

had sole and exclusive jurisdiction of all issues relating to

Consolidation’s attempt to limit its liability in the present action;

(2) no state court judgment would be res judicata as to any

limitation fact or issue in the present proceeding; and (3) the

Newmans’ action would be confined to the state court

proceeding. Appx. 4a-7a.

Citing established admiralty practice, Consolidation

opposed the lifting of the stay in the present action, contending

that the stipulations offered by the Newmans were insufficient

to protect Consolidation’s interests. Appx. 8a-24a. After

receiving no opposition to Consolidation’s contentions, on

January 28, 1991 Judge Bloch ordered that the requested lifting

of the stay would only be granted if the Newmans agreed to

enter into stipulations which the district court deemed would

adequately protect Consolidation’s interest in the present action.

Pet. 45a. A mere two days later the Newmans agreed and

stipulated, inter alia, as follows:

3

1. The Claimants waive any claim of res judicata

based upon any judgment obtained in the state court

proceeding.

2. Consolidation Coal Company shall have the right

to litigate all issues relating to its claims of limitation

and exoneration of liability in the present proceeding

at the above caption. [Appx. 25a.]

On February 1, 1991, the district court lifted the stay that

it had imposed on July 20 of the previous year, allowing the

Newmans to pursue their Jones Act, unseaworthiness and loss

of consortium claims in state court. Pet. 47a.

In November 1991, after Suzanne Newman had withdrawn

her claim, the state court action proceeded to trial and resulted

in a jury verdict in favor of Newman in the amount of

$1,327,000. The jury found that Consolidation was negligent

under the Jones Act and that the vessel in question was

unseaworthy and that Newman was 11.83 percent contributorily

negligent. Pet. 43a. After both parties’ cross-motions for post-

trial relief were denied, the trial court entered an order molding

the jury verdict to a damage award in favor of Newman in the

amount of $1,244,519.50.

Both parties took cross-appeals to the Pennsylvania Superior

Court where that court affirmed all appealed issues except the

trial court’s award of prejudgment interest in favor of Newman.

After the parties were denied cross-applications for reargument

before the Superior Court, Cross-Petitions for allowance of

appeal to the Pennsylvania Supreme Court were also denied.

On August 9, 1995, Newman petitioned this Court for Writ of

Certiorari at docket number 95-240 on the issues of prejudgment

interest and contributory negligence, which Petition was denied

on October 10, 1995.

4

On June 15, 1995 Newman moved to have the present

action returned to active status in the district court so that

Consolidation’s claims for exoneration from or limitation of

liability could be litigated. That motion was granted on July 5,

1995. He then filed a Motion to Adopt the Findings of the Jury

as the Findings of the Court urging that the district court adopt

what he perceived to be the findings of the jury from the state

court action. Appx. 26a. On August 4, 1995, the district court

issued an order denying the Motion, which Consolidation had

opposed. Pet. 34a.

On or about September 2, 1995 Newman filed with the

Third Circuit Court of Appeals a Petition for Writ of Mandamus,

and what he claimed was a protective appeal on September 1,

1995, each challenging the district court’s refusal to adopt the

jury findings in the state court action as binding determinations

in the limitation claim of this case. Said appeal and petition

were dismissed and denied, respectively on November 29, 1995.

Newman petitioned for rehearing, which was also denied. On

January 29, 1996 Newman petitioned this Court for Writ of

Certiorari at docket number 95-1219, which was likewise denied

on April 1, 1996.

The limitation/exoneration case was then tried in a bench

trial before Judge Bloch on July 8, 1996.

On July 17, 1996 the district court issued Findings of Facts

and Conclusions of Law ultimately concluding that

Consolidation was entitled to exoneration from liability. Pet.

25a-33a. More particularly, the court concluded that Newman

slipped and fell into the hold of Barge 1029, that the leaving

line being utilized by Newman at the time of his accident had

been cut, that the cutting of the leaving line occurred after

Newman’s accident and that therefore the condition of the

leaving line could not have caused Newman’s accident. Pet.

5

28a. Based upon these factual findings, the court held that

Newman failed to prove that Consolidation was liable for

negligence or that the vessel was maintained in an unseaworthy

condition and that therefore Newman failed to carry his initial

burden of establishing liability on the part of Consolidation.

Pet. 32a. Accordingly, the court concluded that Consolidation

was entitled to exoneration. Pet. 33a.

On appeal to the Third Circuit of Appeals, the district court

decision was affirmed on August 17, 1997. Said decision was

reported at 123 F.3d 126 (3d Cir. 1997). Pet. 1a. In particular,

the Third Circuit held that Newman should be bound to his

stipulation to waive res judicata' with regard to all issues of

exoneration and limitation in the present proceeding, that

Newman was not entitled to a jury trial in the present action,

and that the district court did not err in its findings of fact or

conclusions of law nor in its evidentiary rulings. Newman’s

Petition to the Third Circuit for Rehearing was denied on

October 30, 1997.

1. In so doing, Newman waived both claim preclusion and issue

preclusion. Pet. 12a n. 8.

6

REASONS FOR DENYING THE WRIT

I.

THE PETITION SHOULD BE DENIED BECAUSE IT

MERELY INVOLVES THE RE-EXAMINATION OF

SPECIFIC FACTUAL MATTERS AS DETERMINED BY

THE DISTRICT COURT AND AFFIRMED BY THE

THIRD CIRCUIT COURT OF APPEALS. REVIEW OF

THE PETITION IMPLICATES NONE OF THE

RECOGNIZED BASES FOR THIS COURT GRANTING

CERTIORARI.

With his Petition, Newman seeks to have this Court reverse

the Third Circuit Court of Appeals’ decision affirming the district

court’s ruling holding Newman to his stipulation to have all

issues relating to Consolidation’s Complaint for exoneration

from or limitation of liability tried before the district court, and

not to invoke res judicata with respect to any issue decided in

the state court action.”

In support of the Petition, Newman invokes several of the

traditional and recognized bases for this Court granting certiorari,

including the decision of the Third Circuit purportedly

conflicting with those of other circuits, Pet. 10, 13, 16-17 and

with the United States Constitution, Pet. 16, federal statute,

Pet. 16, and prior decisions of this Court. Pet. 14. If the Third

Circuit decision was conflicting in any one of these areas there

may be an appropriate basis for this Court to grant certiorari.

However, the decision of the Third Circuit implicates none of

the principles cited by Newman. Instead, the decision can be

distilled to one fact — one that involves neither conflict of the

2. While Newman raised several issues on appeal to the Third

Circuit, it is only the effect of Newman’s stipulation that is the subject

of the Petition. See Pet. 7-8.

_ee

7

circuit courts nor the Constitution, federal statute nor prior

decisions of this Court. That fact is Newman’s stipulation. This

case need not and should not be decided on any of these

purported “conflicts.” As correctly analyzed by the Third Circuit,

this is a case for simply enforcing an agreement that Newman

freely and without objection made, and on which the district

court and Consolidation relied.

For purposes of the Petition, Newman’s stipulation is the

most important element of his claim, yet he devotes essentially

no discussion to it, other than to say, effectively, that he entered

into it yet it should be disregarded.

While Newman calls for resolution of an apparent conflict

between the circuits on whether a claimant in a limitation action

must stipulate to waive the res judicata effect of a state court

decision on claims for exoneration as well as limitation, the

Third Circuit, while noting an apparent conflict, Pet. 9a,

expressly stated that its decision would not and need not involve

it taking a side in the conflict:

In this case it is not necessary for us to take a position

on how far a claimant’s stipulation must go. In other

words, we need not decide whether a district court,

as a condition of dissolving the injunction against

the state court proceedings, may insist that the

claimant waive the res judicata effect of the state

court finding on the liability issue because Newman

has not preserved his right to raise this issue.

We therefore need not decide whether a claimant in

a limitation action must waive the res judicata effect

of the state court proceedings as to both limitation

8

and exoneration issues in order to proceed in state

court under the saving to suitors clause.

Pet. 10a-1 1a.

The Third Circuit made no determination as to the propriety

of the district court’s January 28, 1991 Order conditioning the

lifting of the stay on Newman entering into specified stipulations.

The fact that Newman did not seek to take an appeal of this

ruling under 28 U.S.C. § 1292(a)(1) and, more importantly,

that Newman did not even oppose the form of these stipulations,

but instead immediately agreed and entered into them, was the

basis for the Third Circuit ruling that Newman should be held

to them. It didn’t need to decide questions of conflict among

the circuits or with the Constitution, federal statute or prior

decisions of this Court.

Where no true conflict exists, certiorari is not appropriate.

See The Monrosa v. Carbon Black Export, Inc., 359 U.S. 180

(1959). The Third Circuit decision is patently consistent with

the rule of judicial interpretation that wherever possible, a court

should not pass on questions of constitutionality if an alternative

ground for the decision exists. Alma Motor Company v. Timken-

Detroit Axle Company, 329 U.S. 129, 136 (1946); Rice v. Sioux

City Memorial Park Cemetery, Inc., 349 U.S. 70, 74 (1955);

Communist Party of the United States v. Subversive Activities

Control Board, 367 U.S. 1, 71-72 (1961). The Third Circuit

decided the relevant issues presented to it in just this way.

The Petition then leaves for this Court merely to determine

the factual issues concerning the stipulation, such as its

interpretation, whether Newman waived any rights that he may

have had to have the determinations of the state court made

binding in the exoneration/limitation action, and whether he is

judicially estopped from reneging on his stipulation. However,

9

individual factual determinations are decidedly inappropriate

for review on certiorari. Texas v. Mead, 465 U.S. 1041, 1043

(1984); United States Supreme Court Rule 10 (“A petition for

a writ certiorari is rarely granted when the asserted error consists

of erroneous factual findings or the misapplication of a properly

stated rule of law.”)

Therefore, the Petition should be denied.

Il.

THE DISTRICT AND CIRCUIT COURTS

CORRECTLY HELD NEWMAN TO WHAT HE AGREED

BY WAY OF HIS OWN VOLUNTARY STIPULATION.

With his appeal from the district court’s denial of his Motion

to Adopt the Findings of the Jury as the Findings of the Court

(“Motion to Adopt the Findings of the Jury”), his appeal to the

Third Circuit, and now, his Petition to this Court, Newman

seeks to have the findings made by the jury in the state court

action that Consolidation was negligent and that the leaving

line in question or the vessel on which Newman worked was

unseaworthy, made as binding determinations of fact in the

present action in order to circumvent the stipulation into which

he knowingly, willingly and voluntarily entered. Newman

maintains that the district court’s refusal to do so, and the Third

Circuit’s agreement with that refusal, resulted in a reexamination

of the jury’s findings in the state court action and a denial of a

jury trial in this suit, both — purportedly — in violation of the

Seventh Amendment to the United States Constitution.

Pet. 15-16.

The practice used by the district court was correct and

consistent with over 60 years of admiralty procedure established

by this Court. First, the district court’s issuance of an injunction

H

i

:

i

10

on July 20, 1990 against Newman pursuing claims outside of the

present action was completely proper and consistent with admiralty

practice with regard to limitation/exoneration proceedings. See

Gorman v. Cerasia, 2 F.3d 519, 523 (3d Cir. 1993) (“If a ship

owner facing potential liability for a maritime accident files a

complaint seeking protection under the [limitation] Act, the district

court is authorized to stay all proceedings against the owner.”),

citing 46 U.S.C. App. § 185; Fed. R. Civ. P. Supp. R. F(3). To

the extent Newman wanted to pursue his state court action, he was

required to enter into stipulations sufficient to protect

Consolidation’s interests as a vessel owner. See, Ex Parte Green,

286 U.S. 437, 438-40 (1932); Langnes v. Green, 282 U.S. 531,

540-44 (1931); Complaint of Dammers & Vanderheide, 836 F.2d

750, 755 (2d Cir. 1988). The district court conditioning the lifting

of the stay it imposed on Newman entering into a stipulation to

waive claims of res judicata as to limitation and exoneration issues

was based on this established admiralty practice.’

3. Due to its nature, this practice has been held in certain

instances to involve inherently redundant proceedings and

apparently inconsistent determinations. See Odeco Oil & Gas Co. v.

Bonnette, 4 F.3d 401, 405 (Sth Cir. 1993) (“So where, as here, all of

the claimants are so anxious to take advantage of the perceived

magnaminity of South Texas [state court] juries that they are willing

to stipulate essentially that they will submit to two trials — the state

court trial followed by a substantially redundant federal limitation

proceeding — this court is hard put to deny them. We must accede

to this choice if it is accompanied by stipulations fully protecting

[the vessel owner’s] right to limit liability and agreeing to abide by

an admiralty court determination of the right to limit.”); Texaco, Inc.

v. Williams, 47 F.3d 765, 769 (Sth Cir. 1995) (stay ordered lifted

where, inter alia, claimants “agreed to stipulate that the limitation

court is not bound by any decisions by other courts on issues relating

to limitation and exoneration.”); Port of Pasco v. Pacific Island

Investigation Co., 324 F.2d 593, 598, 599 (9th Cir. 1963) (“{T]he

district court was free to make findings and conclusions which might

(Cont'd)

11

Barring Newman’s request to have the stay lifted and

agreement to enter into a stipulation to protect the interest of

the vessel owner, the limitation action, including,

Consolidation’s claim for exoneration would be litigated before

the district court. In such case, the district court sitting in

admiralty, without a jury, Waring v. Clarke, 46 U.S. (5 How.)

441, 458-60 (1847), would have decided whether Consolidation

had any liability to Newman, and if so, whether that liability

‘should be limited. Province and New York Steamship Co. v.

Hill Mfg. Co., 109 U.S. 578, 595 (1883)*. In fact, Newman

did petition to have the stay lifted so that he could proceed

with his claims in state court, and apparently recognizing his

obligation to stipulate to protect the interests of the vessel owner,

Newman offered to stipulate that: (1) the district court would

have sole and exclusive jurisdiction as to all limitation issues;

(2) that no state court judgment could serve as res judicata as

to any limitation fact or issue; and (3) that Newman would

continue his action to the state court proceeding. In response to

(Cont'd)

be expressly or implicitly inconsistent with the state court as a basis

for the latter’s decision on liability ... It is nevertheless a permissible

result in view of the stipulation of the parties, and the order entered

pursuant thereto, dividing the decisional function between the two

trial courts, each being given a free reign in the field assigned to

it.”)

Whether these redundancies or apparent inconsistencies should

exist or be tolerated is of no moment for purposes of the present

action insofar as Newman stipulated to such a result without

presenting any timely opposition or challenge.

4. This is a two step process where if there is no finding of

liability in the first instance, i.e., exoneration, “there is nothing to

limit.” Complaint of Port Arthur Towing M/V Miss Carolyn, 42 F.3d

312, 317 (1995), quoting Grant Gilmore and Charles L. Black, Jr.,

The Law of Admiralty 895 (2d ed. 1975).

12

Newman’s request, Consolidation filed a response arguing that

the stipulation of the Newmans was insufficient to so protect

those interests. Appx. 8a.

After receiving no opposition from the Newmans, the

district court conditioned its lifting of the stay on their stipulating

to waive any claim of res judicata based upon a state court

judgment, and that Consolidation would have the right to litigate

all issues pertaining to its claims of limitation and exoneration

before the district court. The Newmans dutifully and

enthusiastically, filed such stipulation only three days later, again

without any reservation or objection. Appx. 25a. In reliance on

that stipulation, the district court lifted the stay that it had

imposed. Newman subsequently pursued his state court claims

and after exhaustion of all of his appeals (culminating with this

Court’s denial of Newman’s Petition for Writ of Certiorari)

moved to return to the district court on June 15, 1995. Upon

the district court’s grant of that motion, Newman — without

missing a beat — sought from the district court a summary

resolution of the case through an adoption by the district court

of the jury’s findings and a separate finding in favor of Newman

in total. Appx. 26a.° Without so much as one word about the

5. Apparently mindful of the stipulation that he entered into,

Newman attempted to circumvent its conditions by denominating

his Motion presented to the district court as to one to “Adopt the

Findings of the Jury as the Findings of the Court.” However,

Newman's use of this specious terminology in order to assert res

judicata was recognized by the district and circuit courts as being

patently transparent and in complete contravention of the stipulation.

Moreover, in his Petition, Newman states that “the federal court

is free to consider whether Consol had privity of knowledge of the

conditions giving rise to the accident as a threshold matter to

determining whether Consol may limit its liability.” Pet. 19. This

statement however, represents another inconsistent position taken

(Cont'd)

13

stipulation that he freely entered into and which enabled him to

pursue claims in state court, Newman sought to completely

ignore his obligations. The calculated manner in which Newman

pursued resolution of the limitation action armed with what

(for him) were favorable jury findings — all in disregard of his

explicit stipulations — smacks of disingenuousness toward the

district court, and of doubt whether Newman ever intended to

be held to those obligations. As noted above, when presented

with constitutional questions, courts must endeavor to resolve

the case in which they are presented on non-constitutional

grounds where possible. Indeed, the present dispute does not

involve decisions contradictory to the constitution or federal

statute or prior decisions of this Court. It likewise does not

involve conflicting decisions of circuit courts. Instead, as found

by the Third Circuit, this case involves merely the factual

determination of what Newman stipulated to and whether he

should be bound to that stipulation. The Third Circuit correctly

held that the district court did exactly what Newman agreed

that it could and should do in the limitation/exoneration action.

Accordingly, while Newman argues that the district court

erred in conditioning dissolution of the injunction on the various

stipulations that Newman ultimately entered into, those

(Cont'd)

by Newman and a retreat from the relief that he sought in his Motion

to Adopt the Findings of the Jury, namely, a summary determination

that Consolidation was not entitled to litigate even the issue of its

“privity or knowledge,” i.e., limitation, based on the determinations

made in the state court action. Appx. 28a.

6. Significantly, Newman’s Motion to Adopt the Findings of

the Jury was the first mention of his belief that the Seventh

Amendment proscription on re-examination of jury findings may be

implicated. He had never before raised this issue to the district court

despite ample opportunity to do so.

;

14

stipulations, the requirement of which was based on established

admiralty practice, were entered into voluntarily, without

objection and at Newman’s own request. Newman cannot be

heard now to renege on those stipulations or complain that he

was operating under some kind of duress or coercion. See Acacia

Vera Navigation Company, Ltd. v. Kezia, Ltd., 78 F.3d 211,

218-219 (Sth Cir. 1996) (party cannot argue an issue on appeal

in contravention of stipulation that it entered into where it has

not presented objection or argument to be considered by district

court.). Significantly, if Newman had an objection to the district

court conditioning the lifting of the injunction that it had

imposed, he could have immediately appealed that ruling. See

28 U.S.C. § 1292(a)(1); see also Texaco, Inc. v. Williams, 47

F.3d 765 (Sth Cir. 1995); Gorman, 2 F.3d at 523.’

To the extent that constitutional issues are implicated, as

Newman has protested only since moving to have the district

court resume its jurisdiction of the instant matter on June 15,

1995, any such rights that Newman claims have blatantly been

waived by his own stipulation.

It is well-established that even constitutional rights may be

waived if the waiver is voluntary, knowing, and intelligent.

Faretta v. California, 422 U.S. 806, 835 (1975); Edwards v.

Arizona, 451 U.S. 477, 482-85 (1981). Whether the waiver

was voluntary, knowing, and intelligent is to be determined

from the facts and circumstances of a particular case. Edwards,

451 U.S. at 482. Waiver of a party’s right to a jury trial may be

effected in a variety of ways. It may be done expressly or

impliedly. Commodity Futures Trading Comm. v. Schor, 478

7. Newman undoubtedly recognized the ability to file appeals

to the Third Circuit from interlocutory orders with regard to these

matters. He did so on December 18, 1992, which appeal was docketed

at No. 92-3734 and on September 1, 1995, which appeal was docketed

at No. 95-3491.

15

U.S. 833, 848-849 (1986). It may be done by conduct of the

party. Preferred RX, Inc. v. American Prescription Plan, Inc.,

46 F.3d 535, 548 (6th Cir. 1995), citing, inter alia, Cooper v.

Loper, 923 F.2d 1045, 1049 (3d Cir. 1991) (participation in a

bench trial constitutes waiver). All of these methods are

presented by Newman’s stipulation of January 30, 1991. It

cannot be doubted that Newman’s stipulation constituted a

sufficient and binding waiver of any right that he may have

had to have determinations made in the state court action bind

the district court in this case, or any supposed right to a jury

trial in the limitation/exoneration action or against a court’s

purported reexamination of jury findings. Specifically, it was

Newman who moved in the district court to have the stay of the

state court proceeding lifted, and who stipulated that he would

waive any claim of res judicata based on that proceeding. It

was Newman who stipulated that Consolidation would have

the right to litigate “all issues” relating to the limitation and

exoneration proceeding.

The issue of the necessity for and content of stipulations

required for the admiralty court to lift the stay on the state court

action was specifically presented in detail before the district

court, prior to Newman entering into the stipulation — at least

by Consolidation. Appx. 8a. Significantly, Newman never raised

any Seventh Amendment issue, did not challenge

Consolidation’s position or the stipulation that the district court

deemed necessary to permit the state court action to proceed,

and voluntarily entered into that stipulation. Had Newman felt

the stipulation required by the court was objectionable, he

certainly could and should have challenged it then. Significantly,

however, Newman raised no objection at that time. Since he

raised no objection, the district court and Consolidation relied

on his stipulation, agreeing to hold in abeyance the limitation/

exoneration action that had been progressing toward trial, and

allowing Newman to litigate his state court action. That

concession allowed Newman to litigate his state court claims

16

through trial and appeals all the way to this Court only to have

Newman, after that four year process, seek to renege on his

stipulation and ask the district court to direct what he expressly

agreed he would not request. Newman’s assertion of

constitutional and statutory rights, after having previously

waived them, cannot now be asserted simply because he feels

that the ultimate result is unjust to him. See Carter v. Sea Land

Services, Inc., 816 F.2d 1018, 1021 (Sth Cir. 1987) (“Once a

right, even a fundamental right, is knowingly and voluntarily

waived, a party has no constitutional right to recant at will.”)

The Third Circuit also correctly considered Newm2n

judicially estopped from claiming the stipulation he entered into

was improperly required by the district court. Pet. 10a n. 6.

Indeed, it is well-settled that judicial estoppel precludes a party

from abusing the judicial process by taking inconsistent

positions in the same litigation. See United States v. Ruiz, 73

F.3d 949 (9th Cir. 1996); Ergo Science, Inc. v. Martin, 73 F.3d

595 (Sth Cir. 1996); Guidry v. Sheet Metal Workers Intern.

Ass’n, Local No. 9, 10 F.3d 700 (10th Cir. 1993); Robertson

Oil Co. v. Phillips Petroleum Co., 14 F.3d 360 (8th Cir. 1992).

Newman’s disregard of his own stipulation is precisely such a

situation.

Newman’s stipulation could not be more clear. When

Newman stated that he would “waive any claim of res judicata

based upon any judgment obtained in the state court

proceeding[,]” (emphasis added), what was Newman waiving

other than the potential claim that certain facts which may be

relevant in the exoneration or limitation proceeding had already

been adjudicated in the state court action by a jury and were

thus binding in the present action?

When Newman agreed in his stipulation that Consolidation

would “have the right to litigate all issues relating to its claims

of limitation or exoneration of liability” in the limitation/

17

exoneration proceeding (emphasis added), what else was he

agreeing to but to be subject to a bench trial on the merits of

Consolidation’s exoneration and limitation claims? The district

court, in permitting the state court action to proceed, and

Consolidation, in not opposing that ruling, relied on Newman’s

stipulation in these regards. As stated by the district court in its

August 4, 1995 order denying Newman’s Motion to Adopt:

Claimant’s attempt to have this Court adopt the state

court jury’s findings for purposes of the limitation

proceeding is directly contrary to his own stipulation.

In addition, in light of the stipulation, the claimant

cannot argue that the complainant waived its right to

litigate the limitation issues by proceeding in state court;

the complainant undoubtedly relied on the claimant’s

stipulation when it agreed to litigate in a different

forum.

Pet. 37a.

It is significant that the district court — which recognized the need

for the stipulation, presided over its wording, and which lifted the

stay on the state court action — so interpreted the effect of the

stipulation. An appellate court should be reluctant “to disturb the

district court’s interpretation of a stipulation agreed upon by the

parties during pretrial proceedings and approved by the court.”

Risher v. United States, 465 F.2d 1, 5 (Sth Cir. 1972).

While Newman impressively sets forth the development of

admiralty jurisdiction with regard to the saving to suitors clause

and the Limitation Act, he devotes not a single word in his Petition

to why he voluntarily entered the stipulation that is central to his

claim, or its intended meaning, if that meaning is somehow different

than its plain language.* In proffering the stipulation, Newman

8. Newman states in his Petition, “The Third Circuit has

(Cont’d)

18

claims that he “chose not to take a permissive interlocutory

appeal from the district court’s order lifting the stay on the

proceedings.” Pet. 5. Newman disputes the Third Circuit’s

determination that by not taking an interlocutory appeal from

an order “refusing to dissolve or modify an injunction,” 28

U.S.C. § 1292(a)(1), he “has not preserved his right to raise

this issue. Pet. 9a.

The circuit court’s statement in this regard stems from

Newman’s argument to that court that when faced with the

district court’s order conditioning the lifting of the stay on the

stipulation, Newman was powerless not to accede to the

condition, instead being “forc[ed]” to enter into the stipulation

and having “no choice but to sign on the dotted line.” Appx.

31a-33a. See also Pet. 10a n.5. The court did not consider his

objection to the district court “forcing” him to enter into the

stipulation because he could have sought immediate appellate

review of the order and did not “even object to the form of the

stipulations[.]” Pet. 10a.

While Newman apparently claims that dismissal of his

interlocutory appeal of the district court’s denial of his Motion

to Adopt the Findings of the Jury is inconsistent with requiring

him to challenge the district court’s order conditioning the lifting

of the stay on certain stipulations, the orders were very different

for appeal purposes. While the latter order was decidedly

(Cont'd)

situationally converted permissive review into a mandatory appeal,

and so required Newman to have been clairvoyant in predicting the

district court’s later interpretation of the stipulation.” Pet. 20. In so

stating, Newman suggests that the district court’s “interpretation of

the stipulation” was different than what he intended or its plain

language. Yet, glaringly, Newman offers no insight or explanation

as to what he intended by the stipulation that he freely and without

objection entered into.

19

appealable as an order refusing to dissolve or modify an

injunction and therefore immediately appealable, Gorman, 2

F.3d at 523; Texaco, Inc., 47 F.3d 765 (Sth Cir. 1995), the

former order did not deal with any injunction (other than

rejecting Newman’s argument that the district court should

ignore his stipulation), and was dismissed as not even being

interlocutorily appealable as an order in admiralty determining

the substantive rights and liabilities of the parties pursuant to

28 U.S.C. § 1292(a)(3).

Newman offered no opposition to Consolidation’s brief in

opposition to his motion to vacate or dissolve injunction and

to stay. Instead, upon the issuance of the district court’s order,

Newman willingly, voluntarily and completely complied. To

the extent that Newman challenges the district and circuit court’s

decision holding him to his stipulation, in failing to raise it

before this appeal and, raising it for the first time in front of the

district court, on July 19, 1995, he has waived his opportunity

to do so. Instead of being “force[d]” to stipulate as noted in the

court’s order and having “no choice but to sign on the dotted

line[,]” Appx. 32a-33a. Newman had ample choice to oppose

Consolidation’s brief in opposition, and to object to the court’s

order and to take an interlocutory appeal (see 28 U.S.C.

§ 1292(a)(1)). He did none of these.

Newman expressly stipulated that the district court would

have exclusive jurisdiction for determining all issues related to

Consolidation’s Complaint for Exoneration From or Limitation

of Liability and that no fact found by a jury in the state court

action would serve as res judicata in the present case — a

stipulation on which the district court and Consolidation relied.

No other meaning has been or can be ascribed to the stipulation.

For purposes of Newman’s Petition, this case involves nothing

more than the application of Newman’s stipulation. While

Newman suggests that he was simply waiting until the

20

appropriate time to challenge the district court’s January 28,

1991 order conditioning any lifting at the previously imposed

stay on certain stipulations’ he did not appeal the order at that

time (although could have), did not dispute Consolidation’s

argument on which it was based (Appx. 8a) did not challenge

that district court’s acceptance of that argument or in any way

suggest that he believed the order was incorrect or improper.

Instead he wholly complied with the terms of the order and did

not look back until he realized the district court was going to

hold him to his stipulation with its denial of his Motion to

Adopt the Findings of the Jury over four years later.

The Petition is not about conflicting circuit court decisions

or an unjustified departure from rights supposedly provided by

the constitution, federal statute or prior decisions of this Court.

It involves straight-forward application of Newman’s clear

agreement to relinquish those rights, assuming arguendo that

they even exist in this context.

9. “Newman chose not to take a permissive appeal from the

district court’s order lifting the stay on the proceedings.

* * *

Having now a final judgment Newman appealed to the Third

Circuit.” Pet. 5, 7.

21

CONCLUSION

For the foregoing reasons, the Petition should be denied.

Respectfully submitted,

JAMES R. MILLER

Counsel of Record

DICKIE, McCAMEY

& CHILCOTE, P.C.

Attorneys for Respondent

Two PPG Place, Suite 400

Pittsburgh, PA 15222-5402 \

(412) 281-7272 i