Opposition Brief — Davenport v. Coady

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Supreme Court,

APR 10 1995

No. 97-1495 QFEICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1997

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GENE ALLEN: DAVENPORT,

Petitioner,

ORVILLE L. COADY, ARTHUR P. BARNES, PATRICK

KENNER, NANCY MCLAUGHLIN, JOSEPH MURRAY,

LLOYD VANCLEEF, GARY R. YOUNG,

Respondents.

— %

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

- +

BRIEF IN OPPOSITION OF RESPONDENTS,

NANCY C. MCLAUGHLIN AND GARY R. YOUNG

¢

Scott E. DaANniEL*

BRASHEAR & GINN

800 Farnam Plaza

1623 Farnam Street

Omaha, Nebraska 68102-2106

(402) 348-1000

Attorneys for Respondents,

on behalf of Gary R. Young and

Nancy McLaughlin

* Counsel of Record

KLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED FOR REVIEW

Whether dismissal of Petitioner’s complaint by the

United States District Court for the District of Nebraska,

and subsequent affirmance by the United States Court of

Appeals for the Eighth Circuit, violated Petitioner’s

rights so as to warrant granting of Petition for Writ of

Certiorari to the United States Supreme Court?

LIST PURSUANT TO RULE 24.1(b)

The following are all parties to the proceeding in the

court whose judgment is under review.

Gene Allen: Davenport

Orville L. Coady

Arthur P. Barnes

Patrick Kenner

Nancy McLaughlin

Joseph Murray

Gary R. Young

TABLE OF CONTENTS

Page(s)

QUESTION PRESENTED FOR REVIEW ............ i

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I. THE SUPREME COURT SHOULD NOT

GRANT CERTIORARI WHERE, AS HERE, NO

CONFLICT AMONG THE COURTS OF

APPEALS EXISTS AND THE PETITIONER’S

CASE DOES NOT INVOLVE ISSUES OF

GRAVE IMPORTANCE TO THE PUBLIC

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TABLE OF AUTHORITIES

Page(s)

CASES

American Constr. Co. v. Jacksonville, T. & K. W. Ry.,

Be RI VB ERIE abs vad dou code es ce Le

American Fed'n of Musicians v. Wittstein, 379 U.S.

EE, CRONE 88 eG Pe a ks ee eee 7

Army & Air Force Exch. Serv. v. Sheehan, 456 U.S.

TEE SEPT sss OR RA ES Le 6

Bruner v. United States, 343 U.S. 112 Fee Ske hee ys

City of New York v. Saper, 336 U.S. 328 (1949) ........ 5

Commissioner v. Bilder, 369 U.S. 499 (1962)............ 5

Edwards v. South Carolina, 372 U.S. 229 3) nee 6

Ex parte Lau Ow Bew, 141 U.S. 583 RPMS Fiicek bese 2 eee 4

Fields v. United States, 205 U.S. 292 Le Pisce vee oes 5

Forsyth v. City of Hammond, 166 U.S. 506 gt). 33 Sapa 5

Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240

Sie? ere ARIE oOo oa VS Cale ibaa eR Oe fear teen 5

Head v. Gadsden Civil Serv. Bd., 389 So.2d 516 (Ala.

AS ER 5 SURI ED CADn Cel on Ab mrcape ee gh Gey RET 2

We 06 PS, SES 1S Se TI os ae ie 3 ne 4

Insurance Corp. v. Compagnie Des Bauxites, 456 U.S.

Ew SEM UE nS sired Se ETS ae oie rae 5

Laing v. United States, 423 U.S. 161 (1976)............ 7

Lau Ow Bew v. United States, 144 U.S. 47 t. 3 4

Lehman v. Lycoming County Children’s Servs.

Agency, 458 U.S. 502 (1982) 5

TABLE OF AUTHORITIES - Continued

Page(s)

Lugor v. Edmondson Oil Co., 457 U.S. 922 1). +s Hee 6

Magnum Import Co. v. Coty, 262 U.S. 159 (1923)....... 5

McGee v. International Life Ins. Co., 355 U.S. 220

Sig 8 Da RR ea apy pees anus nate ey EG ABan ry eaten! 7

Neel v. Magana, Olney, Levy, Cathcart & Gelfand, 491

Pots Sok CML. De) chi ea eee 1

New York v. O'Neill, 359 U.S. 1 CRO ee ar re te 6

North Carolina v. Pearce, 395 U.S. 711 caeeee a ea 2

Ohio ex rel. Seney v. Swift & Co., 260 U.S. 146 (1922).....5

[hiel v. Southern Pac. Co., 328 U.S. 217 (1946)......... 7

United Bhd. of Carpenters and Joiners v. United

RED. SOU BET, eee ROE cc oc oy ee a 5

United States v. Doe, 465 U.S. 605 Eo” sO pede coset: 6

. United States v. Donovan, 429 U.S. 413 (1977) ......... 7

United States v. iottney, SOU 4.5. GS (9968) oo 6

United States v. Gouveia, 467 U.S. 180 (1984).......... 6

United States v. Lorenzetti, 467 U.S. 167 RET oo 56 oe ws 5

Zahn v. International Paper Co., 414 U.S. 291 (1973)..... 7

OTHER AUTHORITIES

18 U.S.C. §

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TABLE OF AUTHORITIES -, Continued

Page(s)

OP Oe Ok Se Se ee Tree eae a 2

Oe RPI Ae ORS in ota Ua ha we ae es ee ec ee 2

Rule 72.4, Local Rules of United States District

Court for District of Nebraska ..........550.5..5.. 3

federal Rule of Civil Procedure 8.................... 4

Federal Rule of Civil Procedure 38(a)................ 7

BRIEF IN OPPOSITION

Respondents pray that the Petition for Writ of Cer-

tiorari to the United States Court of Appeals for the

Eighth Circuit be denied

STATEMENT

Petitioner filed a complaint against seven individuals

in the United States District Court for the District of

Nebraska. Petitioner alleged that Respondents had vio-

lated his constitutional rights, had conspired to violate

those rights, had failed to prevent said violations and, as

to the Respondents who practice law, had committed

malpractice.

The complaint was comprised solely of conclusory

statements. The Petitioner did not state the specific rights

which Respondents allegedly violated; nor did he allege

any tacts demonstrating or supporting the purported vio-

lations. Excerpts from the complaint follow:

8. The Judge knew that the Constitutional

Laws of the United states[sic] of America

were correct, but acted against the Private

Citizen(s), pursuant to, TITLE 18 U.S.C.

1621.

9. Attorneys are guilty of “Legal Malpractice”,

when they fail to use the skill, prudence,

and diligence, Lawyers of ordinary skill and

capacity, commonly possess and exercise in

performance of tasks, undertaken. When

failure proximately causes damage, this

gives use to an action in “tort”. Neel v.

Magana, Olney, Levy, Cathcart & Gelfand, 6

Cal.3d 176, 98 Cal. Rptr. 837, 838, 491 P.2d

421.

11. The Plaintiff’s GOD Given Rights, Constitu-

tional Rights, and Immunities secured by

the Constitution of the United states[sic] of

America, in Amendments I, IV, V, VII, IX,

and X were violated by the Defendants.

Petitioner's complaint concluded with a list of the alleged

violations against the respective Respondents. Those alle-

gations were presented in the following manner:

19. Plaintiff(s) is accusing the Defendant

Judge(s), with all of the following charges:

Count I... “Perjury of Oath’; TITLE 18

Chapter 79 U.S.C. 1621

Count Il... “Duress”; Head v. Gadsden

Civil Serv. Bd., Ala.Civ.App., 389 So.2d 516,

519

Count Ill... “Chilling Effect Doctrine”,

North Carolina v. Pearce, 395 U.S. 711, 89

S.Ct. 2072, 23 L.Ed.2d 656. (BLACKS LAW).

Count IV... “Deprivation of Rights”, Sec-

tion 1985 of TITLE 42

Count V... “Constitutional Tort”, TITLE 42

U.S.C. Sec. 1983

Now, for the first time, Petitioner sets forth facts in

his Petition for Writ of Certiorari in an effort to support

the conclusions he reached in his complaint. Petitioner

did not make any of these facts available to the district

court, appellate courts or the parties at any time prior to

filing his Petition herein.

Numerous motions followed the filing of the Peti-

tioner’s complaint. All Respondents filed motions to dis-

miss the complaint for failing to state a claim upon which

relief could be granted. The Petitioner filed motions for

summary judgment, a motion to deny Respondent

Coady’s motion to dismiss and a motion for default judg-

ment as against Respondents McLaughlin and Young.

Respondents filed responses in opposition to Petitioner’s

motion for summary judgment.

United States District Judge Richard G. Kopf referred

the complaint and the various motions to a magistrate

judge pursuant to Title 28 U.S.C. § 636(b)(1)(B). In accord

with that rule, United States Magistrate Judge David L.

Piester reviewed all pleadings and prepared a Memoran-

dum, Order and Recommendation as allowed by 28

U.S.C. § 636(b)(1)(C) and Rule 72.4 of the Local Rules of

the United States District Court for the District of

Nebraska.

Judge Piester found that the “[p]laintitf fails to set

forth the alleged conduct attributable to each of the

He then set forth the require-

ments of Federal Rule of Civil Procedure 8 regarding the

contents of a complaint and demonstrated how Petitioner

failed to meet those requirements. After admonishing the

”

numerous defendants.

Petitioner for filing a complaint containing allegations

identical to those which he had previously filed against

different defendants, Judge Piester concluded the Mem-

orandum with a recommendation to Judge Kopf that

Petitioner’s complaint be dismissed for failu: ‘o state a

cause of action, that the motion for sanctions be denied,

and that Petitioner’s motion for summary judgment be

denied as moot.

Petitioner filed an objection to the magistrate’s Mem-

orandum, Order and Recommendation (“Recommenda-

tion”). United States District Judge Kopf conducted a de

novo review of the portions of the Recommendation to

which Petitioner objected and issued his own Memoran-

dum and Order (“Order”) which found that Judge Pies-

ter’s Recommendation “fully, carefully and correctly

applied the law.” Judge Kopf’s Order adopted Judge Pies-

ter’s Recommendation which, inter alia, dismissed Peti-

tioner’s complaint with prejudice.

Petitioner filed an appeal of that Order with the

United States Court of Appeals for the Eighth Circuit.

Petitioner’s appellate brief contained conclusory allega-

tions similar to those set forth in his original complaint.

The Eighth Circuit summarily affirmed the District

Court's dismissal of Petitioner’s complaint with prejudice

for failing to comply with Federal Rule of Civil Procedure

8.

ARGUMENT

I. THE SUPREME COURT SHOULD NOT GRANT

CERTIORARI WHERE, AS HERE, NO CONFLICT

AMONG THE COURTS OF APPEALS EXISTS AND

THE PETITIONER’S CASE DOES NOT INVOLVE

ISSUES OF GRAVE IMPORTANCE TO THE PUB-

LIC INTEREST.

Jurisdiction to review decisions of the courts of

appeals is to be used sparingly and primarily for two

purposes. Ex parte Lau Ow Bew, 141 U.S. 583 (1891); In re

Woods, 143 U.S. 202 (1892); Lau Ow Bew v. United States,

144 U.S. 47 (1892); American Constr. Co. v. Jacksonville, T. &

K. W. Ry., 148 U.S. 372 (1893); Forsyth v. City of Hammond,

166 U.S. 506 (1897); Fields v. United States, 205 U.S. 292

(1907); Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240

U.S. 251 (1916); Ohio ex rel. Seney v. Swift & Co., 260 U.S.

146 (1922). First, the United States Supreme Court has

reviewed cases by writs of certiorari from Circuit Courts

of Appeals to secure uniformity of decision when a con-

flict exists among courts. Id., Magnum Import Co. v. Coty,

262 U.S. 159 (1923).

For example, in Insurance Corp. v. Compagnie Des Bau-

xites, 456 U.S. 694 (1982), the Court of Appeals for the

Third Circuit acknowledged that the Fifth Circuit’s posi-

tion on a discovery issue “appears to be to the contrary,

but we find ourselves in disagreement with that case”.

Another example of a case which falls under this category

is United States v. Lorenzetti, 467 U.S. 167 (1984). The

Supreme Court granted certiorari in Lorenzetti to review

an opinion of the Court of Appeals for the Third Circuit

which recognized that its interpretation of a statute was

“squarely inconsistent” with that of the Sixth Circuit. Id.

See also, e.g., City of New York v. Saper, 336 U.S. 328, 328

(1949) (conflict related to an issue “of importance in the

administration of the Bankruptcy Act.”); United Bhd. of

Carpenters and Joiners v. United States, 330 U.S. 395, 400

(1947) (“conflict involves an important question of statu-

tory construction”); Commissioner v. Bilder, 369 U.S. 499,

501 (1962) (certiorari granted because of “the need for a

uniform rule on the point”); Lehman v. Lycoming County

Children’s Servs. Agency, 458 U.S. 502, 507 (1982) (cer-

tiorari granted because matter involved “a question of

importance not heretofore considered by this Court, and

one over which the Circuits are divided”).

This Court has also granted certiorari when a deci-

sion of a court of appeals appears to be in conflict with

Supreme Court precedent. Such a conflict usually arises

through a misinterpretation or misapplication of the pre-

cedent. United States v. Doe, 465 U.S. 605, 610 (1984); Lugor

v. Edmondson Oil Co., 457 U.S. 922, 926 (1982); Army & Air

Force Exch. Serv. v. Sheehan, 456 U.S. 728, 733 (1982). The

instant petition presents no such conflict among courts.

Hence, a grant of certiorari on that basis is unwarranted.

The second category of cases in which this Court has

granted certiorari involves issues of grave importance to

the public interest which would benefit the public inter-

est to have the Court of last resort decide. Id. Such cases

for which certiorari was granted include those involving

impor‘ant constitutional issues. For example, this Court

granted certiorari “to review the exercise of the grave

power of annulling an Act of Congress,” United States v.

Gainey, 380 U.S. 63, 65 (1965), and to review the invalida-

tion of a state statute under the federal Constitution

because “this holding brings into question the constitu-

tionality of a statute now in force in forty-two States and

the Commonwealth of Puerto Rico.” New York v. O'Neill,

359 U.S. 1, 3 (1959). Other cases which this Court deemed

“gravely important” encompassed issues such as the

irreconcilability of certain convictions regarding demon-

stration and assembly rights with the Fourteenth Amend-

ment of the United States Constitution, Edwards v. South

Carolina, 372 U.S. 229, 230 (1963), the applicability of the

Confrontation Clause of the Sixth Amendment to the

states, United States v. Gouveia, 467 U.S. 180 (1984), and

the constitutionality of a California statute relating to due

process because the issues presented were found to be

important “not only to California but to other States

which have similar laws.” McGee v. International Life Ins.

Co., 355 U.S. 220, 221 (1957).

The Supreme Court has also granted certiorari in

cases which involve important federal statutory issues.

See, e.g., American Fed’n. of Musicians v. Wittstein, 379 U.S.

171, 175 (1964) (question presented is “an important one

of first impression” under the statute); Laing v. United

States, 423 U.S. 161, 167 (1976) (resolutions of a tax law

conflict would affect seventy cases pending in federal

courts); United States v. Donovan, 429 U.S. 413, 422 (1977)

(question presented involved “construction of a major

federal statute”). Other issues which have satisfied the

standard of “grave importance” involve significant juris-

dictional and procedural issues. See, e.g., Bruner v. United

States, 343 U.S. 112 (1952) (involving jurisdiction of fed-

eral district courts); Zahn v. International Paper Co., 414

U.S. 291 (1973) (involving the jurisdictional amount in

class action suits); Thiel v. Southern Pac. Co., 328 U.S. 217,

255 (1946) (involving the proper establishment of federal

jury panels).

The questions which Petitioner herein seeks to pre-

sent for review include whether the Nebraska District

Court Judge violated the Federal Rules of Civil Pro-

cedure, Rule 38(a) and whether the particular judges of

the United States appellate and district courts are

“required to follow their Oaths to uphold the Constitu-

tion?” Notwithstanding the rhetorical nature of the latter

question, without a factual basis whatsoever to support

such claims, Petitioner’s questions involve neither a con-

flict between the courts of the land nor any issue worthy

of consideration by this Court through a grant of cer-

tiorari.

o—_ ——————_

CONCLUSION

The issues which Petitioner presents for review do

not involve a conflict between the courts of appeals or a

matter of grave importance to the public interest. There-

fore, the petition for writ of certiorari should be denied.

Respectfully submitted,

Scott E. DaANreEL*

BRASHEAR & GINN

800 Farnam Plaza

1623 Farnam Street

Omaha, Nebraska 68102-2106

Tel. No. (402) 348-1000

Attorneys for Respondents,

on behalf of Gary R. Young and

Nancy McLaughlin

* Counsel of Record