# Opposition Brief — Inter-Modal Rail Employees Ass'n v. Burlington Northern & Santa Fe Railway Co.

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0928%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2000
- **Citation:** 530 U.S. 1262

## Text

pet a a

Supreme Court, U.S.
FILED
> MAY 2.4 ?0i
No. 99-1704
CEERK
IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1999

INTER-MODAL RAIL EMPLOYEES ASSOCIATION, THOMAS
FRANKS, CHARLES JONES, TOMMY MARTIN, HOYT
JARRARD, ROBERT STEIN, AND ROBERT JAQUEZ,

Petitioners,
V.

THE BURLINGTON NORTHERN AND SANTA FE RAILWAY
CO., formerly known as THE ATCHISON, TOPEKA AND SANTA
| FE RAILWAY COMPANY; SANTA FE TERMINAL SERVICES,
INC.; IN-TERMINAL SERVICES, INC.; and MI-JACK
PRODUCTS, INC.,

Respondents.

S
ae

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI
Ronald W. Novotny, Esq. Patrick W. Jordan, Esq
Counsel of Record Counsel of Record
Jack R. White Neil O. Andrus
HILL, FARRER & BURRILL, LLP JEFFER, MANGELS,
- One California Plaza, BUTLER & MARMARO, LLP

300 South Grand Avenue, 37" Floor One Sansome Street, 12" Floor
Los Angeles, CA 90071-3147 San Francisco, CA 94104 -4430

(213) 620-0460 (415) 398-8080

Attorneys for Respondents Attorneys for Respondents
THE BURLINGTON NORTHERN IN-TERMINAL SERVICES, INC.
AND SANTA FE RAILWAY CO. and MI-JACK PRODUCTS, INC.
Wright Appellate Services Osi!

(215) 733-9870 @ (R00) 507-9020 @ Fax (215) 733-9872

QUESTIONS PRESENTED

l. Is review necessary to determine whether claims
arising under ERISA §510 should be governed by a federal
three-year limitations period borrowed from ERISA
§§413(a) and 4301(f) in lieu of the most analogous state-law
statute of limitations, notwithstanding the absence of any
authority for this contention and Petitioners’ failure to even
raise it below?

2. Whether certiorari should be granted to determine
whether the court of appeals properly applied a one-year
California statute of limitations for actions based on
wrongful discharge to Petitioners’ §510 claim, in the absence
of any direct and irreconcilable conflict between the Circuit
Courts over what kinds of state-law limitations periods
should apply to such claims?

3. Whether review should be granted to determine
whether Respondents waived their statute of limitations
defense *> Petitioners’ §510 claim, or whether the applicable
limitations period was equitably tolled in this casé?

il
CORPORATE DISCLOSURE STATEMENT
[Supreme Court Rule 29.6]

Respondents The Burlington Northern and Santa Fe
Railway Co. and Santa Fe Terminal Services, Inc. are the
subsidiaries of one parent or publicly-held corporation that
owns more than 10% of their stock, Burlington Northern
Santa Fe Corp.

Mi-Jack Products, Inc. and In-Terminal Services, Inc.
have no parent or publicly-held companies which own more
than 10% of the stock of either company.

ili

LIST OF INTERESTED PARTIES

The parties to this proceeding are correctly identified
in the Petition for Writ of Certiorari.

iv

TABLE OF CONTENTS
CE FE iscinciscnssseernscnticieiiisnnrisoinsiisetiiinisbeniaicistiveia i
Corporate Disclosure Statement.................cccccccsssessssssesceeeees ii
Ak Ok RE TIN i sicsecssiintinsannisncsvintniatatnnncainhansuinvinas ili
URN OE COI atta sia inter tans nvssatinsaiiinniascibinniaabiie 1
Reasons for Denying the Writ..............ccccssscccsessscssessssccsesscees 5

I. PETITIONERS’ ARGUMENT IN FAVOR OF
BORROWING A FEDERAL LIMITATIONS
PERIOD HAS BEEN WAIVED BECAUSE IT
WAS NOT RAISED BELOW AND IS
MERITLESS IN ANY EVENT. ...........cccccccccscosssoees 5

A. Petitioners Have Waived Their Contention That
Any Limitations Periods In ERISA Apply to
Be PIII ssiinicsizsincvnccseesestblahanaipelidlinsaiicaenabascin 5

B. The Lower Federal Courts Have Uniformly
Rejected A Federal Limitations Period For §510
Aa icsdissseustceadcigaideatdsdietaainaiandhaliabiaainacbasaasaidaats 7

II. REVIE\W IS NOT NECESSARY TO
DETERMINE WHETHER THE COURT
PROPERLY APPLIED CALIFORNIA’S ONE-
YEAR STATUTE OF LIMITATIONS FOR
TORTIOUS WRONGFUL DISCHARGE
CLAIMS TO PETITIONERS’ SECTION 510

Vv

A. There Is No Direct And Irreconcilable Conflict
Among The Circuit Courts As to What State
Statute Of Limitations To Apply ERISA
eects OCD iaistincinietctnsitiistaisacdadbiins 11

B. The Ninth Circuit Properly Applied California’s
One Year Statute Of Limitations For Tortious
Wrongful Discharge Claims to Petitioners’
Se SUD I is istsinttiencsctseniibachendiinicdes 17

Ill. CERTIORARI IS COMPLETELY
INAPPROPRIATE TO REVIEW WHETHER
RESPONDENTS WAIVED THEIR STATTUTE
OF LIMITATIONS DEFENSE OR WHETHER
THE LIMITATIONS PERIOD WAS TOLLED..21

COUN i csbicthinstinihiaiiiitalinacia a a ee eee 24

vi
TABLE OF CITATIONS

Cases Cited:

Agency Holding Corp. v. Malley-Duff & Associates, Inc.,
483 U.S. 143, 152, 107 S.Ct. 2759, 97 L.Ed.2d 121 (1987) ..8.

Anhert v.‘Delco Electronics Corp., 982 F.Supp. 1320, 1327

CED. BD. SOF iicsiniicinecicistcntncedeaiibgniaad este elgtatl ecai 14, 19
Baradell v. Board of Social Services, 970 F.Supp. 489, 494
CW ED. Cah. TPIT a cicsicxisscnasecesedaj seaside gehen ae
Barnett v. International Business Machines Corp., 885
F.Supp. 581, 592 GEA. FEY, Br iastinstcndtbsnicinkdinsinecnccoces 12
Barton v. New United Motors Manufacturing Co., 43
Cal.App.4° 1200, 1209, n.6 (1996)...........ccccecseeeees 17, 18, 20
Bollenbacher v. Helena Chemical Co., 934 F.Supp. 1015,
STS CIC ED. BG, TI wikescaccicscesconsicestascaaicniaietulasiestniateepaciiaiares 12
Borden v. Johnson, 196 Ga. App. 288, 289, 395 S.E.2d 628
(Gla. BD. TS xa tisireisnaintintrelicasicraatedaaabaienies Se 15
Burrey v. Pacific Gas & Electric Co., 159 F.3d 388 (9" Cir.
EF crnsisininisecenisvellestnadcuiideswaniamacmpaca mata 3, 4, 16, 18, 20
Byrd v. MacPapers, Inc., 961 F.2d 157, 159 qai™ Cir.
1 | En en Meee wee Reem A Fy Soe ih) oe 15

Chevron Oil Co. v. Huson, 404 U.S. 97, 106-7, 92 S.Ct. 349,
FO Eo a ET ED iicsicinsiescnsinsniisineniielinciainiaiiaailaasditeibiaieabetidlanias

vii

OS... 1s bid acnapaka a cme ismanlaies 15,17

Corkery v. SuperX Drugs Corp., 602 F.Supp. 42, 45 (M.D.
- i FOE ok ne nh a dd eden 12

DelCostello v. International Brotherhood of Teamsters, 460
U.S. 151, 172, 103 S.Ct. 22, 81, 76 L.Ed.2d 476 (1983)...6, 9

DeWitt v. Penn-Del Directory Corp., 872 F.Supp. 126, ie
nh FN cc iceisncis oneectic enc renbsttdnen ateasiciansplsd 7

Felton v. Unisource Corp., 940 F.2d 503, 511-12 (9" Cir.
Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368,
373, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981)............ Pree 11

Funk v. Sperry Corp., 842 F.2d 1129, 1133 (9" Cir. 1988). 18

Giuffre v. Delta Airlines, Inc.;-746 F. Supp. 238, 241 (D.

DN Ee scistehainspassan ti thake dni harciastantasnis Repintidiainininntaneniie 12
Goodman v. Lukens Steel Co., 482 U.S. 656, 662-4, 107
S.Ct. 2617, 96 L.Ed.2d 572 (1987)............cccccscseee Seer veneer ters 4
Grupo Mexicano v. Alliance Bond, 527 U.S.__, 119 S.Ct.
—__, 144 L.B.2d 319, S3ONR, 3 (1999) ..n..crsccorcrcveccesenescsessees 6

Gutierrez v. Mofid, 39 Cal.3d 892, 898-99 (1985)............+. 23

viii

Hardin v. Straub, 490 U.S. 536, 538-44, 109 S.Ct. 1998, 104

L.Ed.2d 582 (1989) .....csccscsccsserscccccsscsccecsecserenssacsessessecesscenss 23
<
Harper v. Virginia t of Taxation, 509 U.S. 86, 96,
113 S. Ct. 2510, 125 L.Ed.2d 74 (1993) .........csccceseesseeeeeees 18
Hartley v. Ocean Reef Club. Inc., 476 So.2d 1327, 1329 (Fla:
App. 1985)........ccccssssscsesssresstessesesseeseenessssssessessseeeseseeneeenenenes 15
Hawaii Carpenters Trust Funds v. Waiola Carpenter Shop,
Inc., 823 F.2d 289, 298 (9% Cir. 1987).......scsccessessserseeeeesees 20
Healy Tibbitts Construction Co. v. Insurance Company of
North America, 679 F.2d 803, 804 (9° Cir. 1982)............+ 22

Heideman v. PFL, Inc., 904 F.2d 1262, 1267 (8"Cir. 1990)13

Heideman v. PFL, Inc., 710 F.Supp. 711, 720, n. 19 (W.D.
Mo. 1989)... ssinssnisanbesaanddaipuaiaetsancebansiencancstnanaanieacisennteasiatnienss 13

Held v. Manufacturers Hanover Leasing Corp., supra, 912
i ae FI, TOG sicsisevinsscseniciorscsaminnessanrsercacenteisncanaiesanene 7

Held v. Manufacturers Hanover Leasing Corp., supra, 912
F.2d at 1207 (10™ Cir. 1990) oon... ccccccccccenssesscsscsssecenceeesees 13

Hinton v. Pacific Enterprises, 5 F.3d 391, 394 cg" Cir. 1993),
cert. den. 511 U.S. 1083 (1994) .......ceceseseeesessssseeteteesees 20

Holly Farms Corp. v. NLRB, 517 U.S. 392, 400, n. 7, 116
S.Ct. 1396, 134 L.Ed.2d 593 (1996) ........scecsecsssresseeereseeessees 7

Topeka & Santa Fe Railway Co., 520 US. 510, 117 S.Ct.

1513, 137 L.Ed.2d 763 (1997)........cscccsseesseeerssseeserrssensees 3, 11
kilka v. t hnolo ., 757 F.Supp. 175,
177 (D.Comn. 1991) ......ccsscceceeseseseeseenensnsnensnseneneeenenenenenenens 12

Jolly v. Eli Lilly & Co., 44 Cal.3d 1103, 1109-10 (1988)...23

Matsushita Electric Indus. v. Epstein, 516 U.S. 367, 379, n.5,

116 S.Ct. 873, 134 L.Ed.2d 6 (1996)......s.scsscsescsssssssssssceesesees 6
McClure v. Zoecon, Inc., 936 F.2d 777, 778, n. 2 (5" Cir.
DI csc sSisisisenaiccldinciaaienelsceoenneecinanassinainapiansesien 7, 12, 13
Musick v. Goodyear Tire & Rubber Co., Inc., 81 F.3d 135
RTT al Og” Rar 14
North Star Steel Co. v. Thomas, 515 U.S. 29, 34, 115 S.Ct.
S027, 152 LB Dd BF CRG) ceca cesnsnsscrnecconinns 9, 10, 16, 17
Reed v. United Transportation Union, 488 U.S. 319, 324,

109 S.Ct. 621, 102 L.Ed.2d 665 (1989).........0:00 5,9, 10, 17
Rivera v. Anaya, 726 F.2d 564, 566 (9" Cir. 1984) ........... 22
Sandberg v. KPMG Peat Marwick, LLP, 111 F.3d 331, 336

SSA, Wc ecaneenncilaleletetontheadlsdeaijntsnvesiladnte 7,14

xX

Smith v. Piezo Technology Professional Administrators, 427
Ae FEA, Te 0 ei niensdahicieriiscassitctedinlanaeeniiadicicies 15

St. Francis College v. Al-Khazraji, 481 U.S. 604, 608, 107
SHAE, SEER, SS UB POS CSD vavcsiniissncvsntissencrsctniicsarionnons’ 4

Sutter v. First Union National Bank of Virginia, Inc., 932
FD. Tada TOE eR FO YI icinsnsentnesiiinansnsnncinicinnaciians 12

Teumer v. General Motors Corp., 34 F.3d 542, 547, n.1 (7"
8 Rar en maim Lome REE ON sm OMEDAR CR SLES CRI EOI 7,0

Van Sant v. American Express Co., 169 F.2d 355, 372
PTOI ssoicessin chek ocacuducihia bh aearaliptaiedabusdiaietah idea albanmidemadaiuaaaiic 21

Varity Corp. v. Howe, 516 U.S. 489, 116 S.Ct. 1065, 134
LRA See OED icisesstindinsnnstldiceinnisiiopeniiiandiaaiaenabaetited 8

Wholesale & Retail Distribution Teamsters v. Santa Fe
Terminal Services, 826 F.Supp. 326, 330 (C.D. Cal. 1993).22

Wilson v. Garcia, 471 U.S. 261, 267-8, 105 S.Ct. 1938, 85
La SOW CNET vieksescsnersikisid eoeasicnstcitaibaar islands 8

Wnight v. Southwestern Bell Tel. Co., 925 F.2d 1288, 1291
Eggs toe, , MRMRIR MOET AR Tat sears Fr RCN) rate mR DOPE 7

Zenith Radio Corp. v. Hazeltine Research, 401 U.S. 321,
B52-5, Fi BAA: THE, FO UTD Fi EAD wisesisstesincsestsicicss 21

Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 398, 102
Bk. VAZT, FE Le Bae re) sisccterssvsisnsicldediiciacs 21

xi

Statutes:

EN Te A Os ccnsenisasidselshinicnshntinsidebcbaslactasieatabeansnhicaneniuisiic wil y &
3, 4, 5, 6, 7, 8, 9, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 22, 23
ERISA §§ 413(a) and 4301 (fp... ceeceeeeceeeeeeeeeees 1.57.8
Be sk Oi cisncstis nak oishcteciiladasiuunhianextanichddanssbiielesaiasanes 2
OO SE Ok SIE sessecinisoucessvcanteystannsnebinbenaniainigeapieibelaabiapeninensiaiaes 2
California Code of Civil Procedure (C.C.P.) § 340(3) ssseseseeees
schuliiahseneeaaldebabibaaatinetisidkdiaaaninnioaiasliadinetas 3, 4, 13, 17, 18, 20
29 U.S.C. $§ TULSCAZ) ated LEST(IZ) ..cescvcsscsercescsescescssesees 5
SC RaI a, AF Te AEN cise esinechasedininaddanonsbenssirelisadaaisiiaieadaawahaeipeanedhion 6
Workers’ Adjustment and Retraining Notification
(“WARN”) Act 29 U.S.C. § 2101, et. Seq. ........scscsscereeees 10
Labor Management Reporting and Disclosure Act
ETS Be BF Sie OF OE RICE cvesnsnnessaicrncescsancesseecensase 10
Ba x PO EE: ARIE TE Ci iitsvenisivescctascsissasnisccnsantcatncesen 14
Scere Ae nnctssiti inne cckssimutinnabioitatipenahibbainabanmanisiineiins 17, 20

Title VII of the U.S. Civil Rights Act of 1964, 42 U.S.C.
NINE <i cshocssntoiactusiirabsuelecanetucnieetiubensiolaebagesbasaudeoan 19

Rules:

Federal Rule of Civil Procedure 12(b)(6)...........sesssessessee- 2, 21
RD Pa xicesinnnccninnaticantessnaoniatinieienenisiipiiaastisabtuiiiadadoiamanae 22
Federal Rule of Civil Procedure 12(h)(2)...............ccccccseeeeees 22

STATEMENT OF THE CASE

This action arose out of a change in the employment
of Petitioners on March 31, 1990. Until that date,
Respondent Santa Fe Terminal Services, Inc. ("SFTSI") was
signatory to an agreement with The Atchison, Topeka and
Santa Fe Railway Co. (the predecessor to Respondent The
Burlington Northern and Santa Fe Railway Co.) to provide
loading and unloading of "intermodal" trailers and containers
on and off of rail flatcars at the Railway's “Hobart yard" rail
terminal in Los Angeles. Petitioners performed that function
for SFTSI as members of two labor organizations, Teamsters
Local Unions 63 and 208. (See Petition, pp. 9-10).

in early 1990, SFTSI was competitively outbid by
Respondent In-Terminal Services, Inc. ("ITS"), for a new
service agreement at the terminal. As a consequence, most
of Petitioners’ members transferred their employment from
SFTSI to ITS effective April 1, 1990. Petitioners allege that
after they were hired by ITS, they suffered a reduction in
contributions to, and benefits from, their Teamster-sponsored
multi-employer pension and health and welfare plans as a
result of this change in their employer and the negotiation of
a new collective bargaining agreement between ITS and
Locals 63 and 208. (See Appellant’s Excerpts of Record on

‘Respondent Santa Fe Railway strongly disputes Petitioners’ assertions
that they “received their pay checks" from the Railway and enjoyed
“Railroad employee status with FELA coverage and RRB [Railroad
Retirement Board] benefits." (See Petition, p. 7). Respondent further
disputes Petitioners’ assertion that they were discharged from their
employment with the Railway, because none of them were ever Railway
employees. (See Petition, pp. 3 and 8-9).

Appeal, hereinafter "E.R.," at p. 14, 9 31).

This action was commenced on July 17, 1992, more
than two years after the change in Petitioners' employment.
Petitioner's original Complaint alleged three claims for relief,
for (1) interference with their rights in violation of § 510 of
ERISA, 29 U.S.C. § 1140, (2) personal injuries under the
Federal Employers' Liability Act ("FELA"), 45 U.S.C. § 51,
et seq., and (3) wrongful discharge in violation of public
policy. (See Appellees' Supplemental Excerpts of Record on
Appeal, hereinafter "S.E.R.," pp. 1-9). The action was -
brought by the "Inter-Modal Rail Employees Association"
(IMREA) as the assignee of the claims brought by
Petitioners or, in the alternative, as a class action on their
behalf.

In April 1993, the district court granted Respondents'
motion to dismiss the Complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6), based primarily on the ground that
Petitioners had not stated an actionable claim for violation of
§ 510 of ERISA and could not maintain a class action under
FELA.” The Ninth Circuit Court of Appeals subsequently
upheld the dismissal of Petitioners' § 510 claim to the extent
it was based on the alleged interference with their health and
welfare and railroad retirement benefits, but held that the
district court erred in dismissing their claim for interference
with their rights to pension benefits under the statute. Inter-

’The court also dismissed Petitioners’ third cause of action for wrongful
discharge in violation of public policy because it was not filed within one
year as required by Cal. Code of Civ. Proc. § 340(3) -- the same statute
of limitations that the court ultimately applied to their ERISA claim.
(See S.E.R. 21, 35)

3

Modai Rail Employees Association v. The Atchison, Topeka
& Santa Fe Railway Co., 80 F.3d 348, 351-2 (9th Cir. 1996).

On certiorari, this Court held that a claim could be
maintained under § 510 for interference with Petitioners’
non-vested "health and welfare" benefits, and remanded the
case for further proceedings. Inter-Modal Rail Employees
Association v. The Atchison, Topeka & Santa Fe Railway
Co., 520 U.S. 510, 117 S.Ct. 1513, 137 L.Ed.2d 763 (1997).

After remand, Petitioners filed a First Amended
Complaint alleging a violation of § 510 of ERISA and
personal injuries under FELA.’ On November 23, 1998, the
district court granted Respondents’ motion for summary
judgment on the § 510 claim on the ground that it was barred
by the one-year limitations period contained in California
Code of Civil Procedure (C.C.P.) § 340(3). The court
specifically concluded that the “primary interest" which was
invaded by the Respondents' alleged wrongful conduct was
Petitioners’ personal interests in not being wrongfully
terminated from their employment by SFTSI, and that the
one-year statute for tortious wrongful discharge claims was
applicable under the Ninth Circuit's decision in Burrey v.
Pacific Gas & Electric Co., 159 F.3d 388 (9th Cir. 1998)
decided earlier that year. (App. III, 22a). Petitioners
thereafter filed a motion for reconsideration of the district
court's decision, which was denied. (E.R. 418-26; App. I,
4a-10a).

In its unpublished memorandum decision of January
21, 2000, the Ninth Circuit affirmed summary judgment for

*The district court subsequently dismissed the claims of the "Inter-Modal
Rail Employees Association" for lack of standing, thus rendering the
Association's inclusion as one of the parties to this petition improper.
(See E.R., 30-31).

Respondents on Petitioners’ § 510 ERISA claim on the
ground that it was not timely filed within the one-year
limitations period applicable to § 510 claims in California.
The Court of Appeals held that the Burrey case was properly
given full retroactive effect to this action, and that the one-
year statute of limitations contained in C.C.P. § 340(3) was
properly applied to Petitioners' claim because the "essential
nature of the action" was to remedy a violation of "personal
rights" implicated by § 510. (See Appendix I, 6a-10a).* The
Ninth Circuit also categorically rejected Petitioners’
contentions that Respondents waived their statute of
limitations defense, and that the applicable limitations period
was equitably tolled in these circumstances. (Id. at 6a, 8a).
No petition for rehearing or suggestion for rehearing en banc
was filed.

‘In holding that Burrey was properly applied to the case at hand, the
Court distinguished Chevron Oil Co. v. Huson, 404 U.S. 97, 106-7, 92
S.Ct. 349, 30 L.Ed.2d 296 (1971) on the ground that Burrey did not
overrule any "clearly established precedent" on which Petitioners were
entitled to rely. (See Appendix I, 7a, n. 5, citing St. Francis College v.
Al-Khazraji, 481 U.S. 604, 608, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1987)
and Goodman v. Lukens Steel Co., 482 U.S. 656, 662-4, 107 S.Ct. 2617,
96 L.Ed.2d 572 (1987).

REASONS FOR DENYING THE WRIT
I.

PETITIONERS' ARGUMENT IN FAVOR
OF BORROWING A FEDERAL
LIMITATIONS PERIOD HAS BEEN
WAIVED BECAUSE IT WAS NOT
RAISED BELOW AND IS MERITLESS IN
ANY EVENT

A. Petitioners Have Waived Their
Contention That Any
Limitations Periods In ERISA Apply
to § 510 Actions

The principal argument presented in the certiorari
petition is that a uniform federal limitations period should be
borrowed from elsewhere in ERISA. Petitioners specifically
contend that this Court should grant review and adopt a
uniform three-year limitations period to § 510 claims based
on §§ 413(a) or 4301(f)(2) of ERISA, 29 U.S.C. §§
1113(a)(2) and 1451(f)(2). (Petition, p. 23). However,
Petitioners did not propose the application of either of these
federal statutes to their § 510 claim in the proceedings
below, nor did they argue that a federal law limitations
period applied to that claim pursuant to the "narrow
exception" to borrowing state limitations periods in these
circumstances. See Appellees' Joint Answering Brief, p. 13,
n. 2 [citing Reed v. United Transportation Union, 488 U.S.

319, 324, 109 S.Ct. 621, 102 L.Ed.2d 665 (1989) and
DelCostello v. International Brotherhood of Teamsters, 460
U.S. 151, 172, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983)]. ~
Rather, Petitioners consistently argued, both in the district
court and the appellate court, only that a three or four-year
limitations period should be borrowed from state law for
application to their § 510 claim in these circumstances,
thereby fully conceding the propriety of borrowing a state
limitations period.’ (See Appellants Opening Brief, p. 19
(arguing that the duty of the federal courts under Reed was to _
"formulate an analogy to the various California causes of
action that would avoid the importation into ERISA" of the
one-year limitations period applied in this case); Appellants
Opening Brief, p. 34 (correctly noting that since ERISA §
510 does not contain its own statute of limitations, litigants
such as Petitioners “must look to the most analogous statute
of limitations under state law"); S.E.R. 148 (in which
Petitioners' counsel expressly acknowledged that § 510 is a
“public policy type tort claim which borrows the statute of
limitations from whatever analogous state laws exist in the
various jurisdictions").

Because Petitioners failed to raise their federal
limitations argument below, they have accordingly waived it
and the Court should decline to consider it. See Grupo
Mexicano v. Alliance Bond, 527 U.S. _, 119 S.Ct. _,
144 L.Ed. 2d 319, 330, n. 3 (1999); Matsushita Electric

*Petitioners no longer contend that the four-year limitations period
contained in C.C.P. § 337(1) applied to their claim, nor could they
reasonably do so given the utter lack of merit of that contention and the
Ninth Circuit's outright rejection of it. (See Appellees' Joint Answering
Brief, pp. 23-29; App. I, 9a).

Indus. v. Epstein, 516 U.S. 367, 379, n. 5, 116 S.Ct. 873, 134

L.Ed.2d 6 (1996); Holly Farms Corp. v. NLRB, 517 U.S.
392, 400, n. 7, 116 S.Ct. 1396, 134 L.Ed.2d 593 (1996).

B. The Lower Federal Courts Have
Uniformly Rejected A Federal
Limitations Period For § 510 Claims

Apart from Petitioners' failure to raise their federal
limitations period argument at any prior point in these
proceedings, this argument has never been accepted by any
federal court, anywhere. Every federal court which has
considered the proposition that a federal statute of
limitations, including §§ 413(a) or 4301 of ERISA, should be
applied to § 510 claims has unhesitatingly rejected it.

See Held v ufacturers Hanover in .» 912 F.2d
1197, 1200; 1209-10 (10" Cir. 1990); McClure v. Zoecon,
Inc., 936 F.2d 777, 778, n.2 (Sth Cir. 1991); Sandberg v.
KPMG Peat Marwick, LLP, 111 F.3d 331, 336 (2d Cir.
1997)(holding that the “available state-law limitations
periods satisfy the federal government's interest in ensuring
that an employer fulfill its obligations under ERISA");
Teumer v. General Motors Corp., 34 F.3d 542, 547, n.1 (7th
Cir. 1994)(finding no particularly appropriate federal
analogue that would "prompt us to part from the usual
practice [of borrowing the most applicable state law statute
of limitations] in this case"). Some courts have in fact
expressly rejected application of the limitations period
contained in § 413 to § 510 claims. See Teumer, supra, 34

F.3d at 546; Wright v. Southwestern Bell Tel. Co., 925 F.2d
1288, 1291 (10th Cir. 1991); DeWitt v. Penn-Del Directory

Corp., 872 F.Supp. 126, 136 (D. Del. 1994).

There is good reason for this uniform rejection of
efforts to borrow limitations periods from other parts of
ERISA, because (as Petitioners concede in their Petition) §
413(a) expressly applies only to actions under Title I,
Subtitle B, Part 4 of ERISA for breaches of fiduciary duty,
and § 4301 expressly governs only actions against
multiemployer plans under Subtitle E of Title IV of the
statute (See Petition, p. 4).° Since no circuit court has ever
adopted or even suggested adopting either of the suggested
federal analogues to § 510 claims, there is clearly no conflict
among the circuits regarding the propriety of doing so. Nor
is there any other basis in Supreme Court Rule 10 that would
support the grant of certiorari on this issue.

Indeed, this argument runs counter to well
established principles of federal law. When Congress fails to
provide a statute of limitations for claims arising under
federal statutes, a court must generally apply the limitations
period of the state-law cause of action most analogous to the
federal claim. Wilson v. Garcia, 471 U.S. 261, 267-8, 105
S.Ct. 1938, 85 L.Ed.2d 254 (1985). This requires the court
to "characterize the essence" of the plaintiff's federal claim
(Id. at 267-70), and apply the statute which "substantively
most resembles the federal action." Agency Holding Corp.
v. Malley-Duff & Associates, Inc., 483 U.S. 143, 152, 107
S.Ct. 2759, 97 L.Ed.2d 121 (1987). Petitioners thus
acknowledge that when a federal statutory claim does not

*Moreover, this Court did not acknowledge that § 510 claims are “quite
similar" to breach of fiduciary claims in its decision of Varity Corp. v
Howe, 516 U.S. 489, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996), as
Petitioners assert; in fact, this Court did not even address § 510 claims in
its opinion in that case. (See Petition, p. 22, n. 15).

9

provide its own limitations period, a court generally applies
the “state statute which is ‘most closely analogous" to the
federal Act in need." See Petition, p. 10, citing North Star
Steel Co. v. Thomas, 515 U.S. 29, 34, 115 S.Ct. 1927, 132
L.Ed.2d 27 (1995). Only when the state limitations rule is
“at odds for the purpose of operation of federal substantive

law," has the Court recognized a "closely circumscribed
exception" from the general rule that statutes of limitation
are to be borrowed from state law. Reed, supra, 488 U.S. at
324. Accordingly, resort to state law remains the norm for
“borrowing purposes" except

[w]hen a rule from elsewhere

in federal law clearly provides

a closer analogy than available

state statutes, and when the

federal policies at stake and the

practicalities of litigation make

that rule a significantly more

appropriate vehicle for

interstitial law making.
DelCostello, supra, 460 U.S. at 171-2; Reed, supra, 488 U.S.
at 323-4.

Petitioners have failed to show that the requirements
for application of this narrowly circumscribed exception to
the general rule of borrowing state limitation periods apply
in this case. They have not even begun to explain why any
of the suggested provisions of ERISA would constitute a
“closer analogy" to § 510 actions than state statutes of
limitation applicable to wrongful discharge causes of action
which, as shown infra, have been invoked in virtually all
states in which such claims exist. Petitioners accordingly
attempt to achieve here judicially what Congress did not do

10

legislatively, and urge the Court to adopt a limitations period
in derogation of the usual procedure for finding the most
appropriate limitations period in these circumstances. Stated
differently, they ask this Court to address an argument that
calls for a radical departure from existing law, when it was
not raised below and has never been accepted or even
considered by the by Ninth Circuit in this case or by any
other federal court.’ For each of these reasons, the Court
should deny the petition.

"In contrast, in both North Star and Reed, supra, the Court resolved splits
in the circuit courts over whether statutes of limitations applicable to
various federal statutory claims should be borrowed from state or federal
law. See North Star, supra, 515 U.S. at 33 (resolving conflict between
circuits in borrowing state-law or National Labor Relations Act (NLRA)
limitations periods to actions brought under the Workers’ Adjustment and
Retraining Notification ("WARN") Act, 29 U.S.C. § 2101, et. seq.; Reed,
supra, 488 U.S. at 323, n.3 (resolving conflict between circuits as to
whether the NLRA or state-law limitations periods applied to claims
brought by union members under the free speech and assembly
provisions of the Labor Management Reporting and Disclosure Act
("LMRDA"), 29 U.S.C. § 411(a)(2). Significantly, the Supreme Court
decided in both cases that state-law limitations periods applied to claims
brought under these federal statutes.

11

Il.

REVIEW IS NOT NECESSARY TO
DETERMINE WHETHER THE COURT
PROPERLY APPLIED CALIFORNIA'S

ONE-YEAR STATUTE OF LIMITATIONS
FOR TORTIOUS WRONGFUL
DISCHARGE CLAIMS TO PETITIONERS'
SECTION 510 ACTION

A. There Is No Direct And Irreconcilable
Conflict Among The Circuit Courts
As To What State Statute Of
Limitations To Apply ERISA Section
510 Claims.

Petitioners next contend that this Court must grant
certiorari because the courts of appeal "differ widely" in their
selections of statutes of limitation. (Petition, p. 15).
However, this is not a "conflict" within the meaning of Rule
10. Rather, a conflict must ordinarily be "square and
irreconcilable" and implicate a matter of federal importance
in order for review to be granted. Supreme Court Rule
10(a); Stein, et al., Supreme Court Practice, 7th Ed. 1993, §

414, p. 168, citing Firestone Tire & Rubber Co. v. Risjord,
449 U.S. 368, 373, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981).°

*Thus, for example, the Court previously granted review in this
action to resolve a direct conflict between the circuit courts over whether
§ 510 actions may be based on the interference with "non-vested" as
opposed to “vested" benefits. See Inter-Modal, supra, 137 L.Ed.2d at
768.

12

Contrary to Petitioners’ assertions, the application of
different statutes of limitations in different states poses no
conflict requiring certiorari to resolve, but rather constitutes
a natural by-product of the general rule that the courts
borrow the limitations period applicable to the most
analogous state-law cause of action for § 510 claims.

Petitioners first ignore the fact that almost all courts
have construed § 510 claims as analogous to wrongful
discharge or employment discrimination claims. See
McClure v. Zoecon, Inc., supra, 936 F.2d at 778, and cases
cited therein. Thus, in 1994, the Seventh Circuit borrowed
the Illinois limitations period governing retaliatory discharge
claims under § 510 actions [See Teumer v. General Motors
Corp., supra, 34 F.3d at 550], and other federal courts have
almost uniformly followed suit in characterizing claims
under § 510. See Jaskilka v. Carpenter Technology Corp.,
757 F.Supp. 175, 177 (D. Conn. 1991) (holding that a
complaint alleging discharge for the purpose of depriving an
employee of retirement benefits under ERISA bears a “close
resemblance to a cause of action for wrongful discharge in
violation of a clear mandate of public policy under
Connecticut law"); Corkery v. SuperX Drugs Corp., 602
F.Supp. 42, 45 (M.D. Fla. 1985) (Section 510 action held
analogous to an employment termination case); Bollenbacher
v. Helena Chemical Co., 934 F.Supp. 1015, 1030 (N.D. Ind.
1996) (applying Indiana's statute of limitations for retaliatory
discharge claims to § 510 actions); Giuffre v. Delta Airlines
Inc., 746 F.Supp. 238, 241 (D. Mass. 1990) (retaliatory
discharge claim held analogous to § 510 claim under
Massachusetts law).”

°See also Barnett v. International Business Machines Corp., 885

13

After reviewing the numerous cases which applied
limitation periods for wrongful discharge claims to § 510
actions, the Fifth Circuit in McClure acknowledged the
Eighth Circuit's decision in Heideman v. PFL, Inc., 904 F.2d
1262, 1267 (8th Cir. 1990), which held that a contract
analogue was appropriate -- but noted that the Heideman
court adopted that limitations period "without analysis" and
“without allocating more than one sentence to the issue of
which limitation statute properly applied." Ibid., 936 F.2d at
779. The circuit court in Heideman in fact merely upheld the
application of a six-year statute of limitations adopted from
Tennessee law by the district court, which had merely (and,
once again, without any analysis) held that such a limitations
period applied to § 510 claim because it was also applicable
to claims brought for the denial of benefits under 29 U.S.C. §
1132. See Heideman v. PFL, Inc., 710 F.Supp. 711, 720, n.
19 (W.D. Mo. 1989).

By affirming the application of California's one-year
limitations period for wrongful discharge claims in violation
of public policy contained in C.C.P. § 340(3) in this instance,
the Ninth Circuit therefore acted in accord with most of the
other circuit and district courts which have addressed the
issue. Moreover, to the extent that certain circuit courts have
applied limitations periods applicable to other kinds of
claims to § 510 actions, such rulings can be reconciled by the
obvious fact that causes of actions vary from state to state, as

F.Supp. 581, 592 (S.D. N.Y. 1995)(citing McClure); Sutter v. First Union
National Bank of Virginia, Inc., 932 F.Supp. 753, 757 (E.D. Va. 1996)
(holding that Virginia's common law cause of action for wrongful
discharge was most analogous to an action under § 510); Baradell v.

_ Board of Social Services, 970 F.Supp. 489, 494 (W.D. Va. 1997).

os

do statutes of limitations. See Musick v. Goodyear Tire &
Rubber Co., Inc., 81 F.3d 136, 139 (11th Cir. 1996). The
courts have in fact recognized that there is no way to
eliminate disparities among various limitations periods to
applicable § 510 actions arising in different states, given the
fact that this is the natural and inherent result of Congress’
choice not to specify a limitations period for such claims.
See Anhert v. Delco Electronics Corp., 982 F.Supp. 1320,
1327 (S.D. Ind. 1997).

Petitioners purport to identify only one situation in
which courts have reached different results under the law of
the same state. Petitioners claim that the Second Circuit's
decision in Sandberg v. KPMG Peat Marwick, LLP, supra,
111 F.3d at 335 conflicts in this sense with the earlier
decision of the Tenth Circuit in Held v. Manufacturers
Hanover Leasing Corp., supra, 912 F.2d at 1207 (10th Cir.
1990) (Petition at 16). However, careful examination of the
Second Circuit's opinion indicates otherwise. The Second
Circuit expressly noted that New York does not have a cause
of action for "wrongful discharge," and therefore could not
use this analogue for § 510 claims. It therefore borrowed the
limitations period from a New York workers' compensation
statute (N.Y. Work. Comp. Law § 120). Significantly, the
Second Circuit expressly considered the Tenth Circuit's
decision in Held — which applied New York's six-year
limitations period for breach of contract actions — but pointed
out that the workers' compensation statute had not been
adopted until 1994, and therefore was not available to the
Held court. See Sandberg, supra, 111 F.3d at 336. This kind
of evolving response to a changing statutory scheme simply
does not constitute a "conflict" within the meaning of Rule
10.

15

The only other Circuit Court of Appeals decisions
cited by Petitioners which did not apply a tortious wrongful
discharge analogue to § 510 actions were issued by the
Eleventh Circuit in Clark v. Coates & Clark, Inc., 865 F.2d
1237, 1241 (11th Cir. 1989) (applying two-year limitation
period for enforcement of statutory rights under Geergia
law) and Byrd v. MacPapers, Inc., 961 F.2d 157, 159 (11th
Cir. 1992) (applying limitations period for retaliatory
discharge for filing workers' compensation claim under
Florida law) (See Petition, p. 16, n.6). However, neither
Georgia nor Florida recognize common law causes of action
for retaliatory wrongful discharge. See Borden v. Johnson,
196 Ga. App. 288, 289, 395 S.E.2d 628 (Ga. App. 1990)
(rejecting any “public policy" exception to Georgia's at-will
employment rule absent codification in statute); Hartley v.
Ocean Reef Club, Inc., 476 So.2d 1327, 1329 (Fla. App.
1985) and Smith v. Piezo Technology Professional
Administrators, 427 So.2d 182, 184 (Fla. 1983) (confirming
that no common law tort of retaliatory discharge exists in
Florida, and that the legislature had prescribed a wrongful
discharge cause of action in that state only for employees
who are fired for bringing workers' compensation claims).
The Clark and Byrd courts' borrowing of Georgia's and
Florida's statutes of limitations for enforcement of a statutory
claim and for retaliation for filing a workers’ compensation
action to the § 510 claims in those cases can therefore easily
be reconciled and explained by the limited kinds of causes of
action available in those states, and the absence of any
tortious wrongful discharge analogue to apply to § 510
claims.'°

*°For this reason, this case is a poor vehicle for instructing federal courts

16

This Court in fact largely disposed of Petitioners’
contention in North Star Steel Co. v. Thomas, supra, 515
U.S. at 36, in which it was urged that a uniform federal
statute of limitations should be applied to actions brought
under the WARN Act. The Court there readily
acknowledged that

the practice of adopting state statutes of
limitations for federal causes of action can
result in different limitations periods in
different States for the same federal action,
and .. . that some plaintiffs will canvass
the variations and shop around for a forum.
But these are just the costs of the rule
itself, and nothing about [the federal
statute in issue] makes them exorbitant.

Petitioners have accordingly failed to demonstrate
that 2 sufficiently direct, significant, and irreconcilable
conflict presently exists among the circuit courts with respect
to what state statute of limitations to borrow for § 510
claims. More significantly, they have failed to demonstrate
how the Ninth Circuit's decisions in this case and in Burrey
are in conflict with any other circuit court decision on the
important question of how the statute of limitations should be

on how to handle situations such as those confronted by the Second and

Eleventh Circuits, in which the pertinent state law did not recognize a

cause of action for wrongful discharge. In direct contrast to the cases

from those circuits, this case does involve a state scheme in which there

is an analogous wrongful discharge cause of action and associated

limitations period. Thus, determining whether or not such a limitations

period was properly applied in this instance would not assist the appellate a
courts with jurisdiction over states which do not have such causes of 4
action, on which limitations periods should apply to § 510 claims.

17

determined for claims brought under § 510. Nor is there any
conflict with this Court's past decisions; rather, the Ninth
Circuit did exactly what it was supposed to do under the
well-settled rules articulated in Reed and North Star for
borrowing the most analogous state law limitations period to
the "federal Act in need." The petition must accordingly be
denied on this basis as well.

B. The Ninth Circuit Properly Applied
California's One-Year Statute Of
Limitations For Tortious Wrongful
Discharge Claims To Petitioners’
Section 510 Claim

As previously noted, the Ninth Circuit applied a one-
year statute of limitations under C.C.P. § 340(3) to
Petitioners’ § 510 action, as opposed to the three-year
limitations period for causes of action based on liability
created by statute contained in C.C.P. § 338(a).'' Initially,
the issue of which statute of limitations should be selected
for application to § 510 claims in an individual state does not

"Petitioners cite Barton v. New United Motors Manufacturing
Co., 43 Cal. App.4th 1200, 1209, n.6 (1996) in support of their contention
that § 338(a) should be applied to their § 510 claim because it is a
“statutory claim that did not exist at common law.” But this misses the
point: applicable statutes of limitations in these circumstances are almost ~
always borrowed from the most analogous state-law cause of action,
because otherwise federal claims such as § 510 actions would always be
governed by the limitations period for violations of various state
statutes. See Clark v. Coats & Clark, Inc., supra, 865 F.2d at 1241 (court
finds the “most analogous state law claim when adopting a_ limitations
period to a federal law”).

18

raise an issue of national importance, and is therefore an
insufficient ground for granting review by this Court under
Rule 10. Nevertheless, the Ninth Circuit properly applied
the one-year statute of limitations period in this instance.
Petitioners principally contend that the Ninth Circuit
erred in borrowing a state statute of limitations first clarified
by an appellate court decision in 1996 to their § 510 claim
filed four years earlier.'? This argument, based on the
particular history of an individual case, is even more narrow
than the question of what limitations period should typically
be borrowed from California law for application to § 510
actions, and therefore provides a patently insufficient ground
for review. Moreover, this contention ignores the well-
settled proposition that "a rule of law, once announced and
applied to the parties in a controversy, must be given full
retroactive effect by all courts adjudicating federal law."
[See App. I at 6a-7a, citing Harper v. Virginia Department of
Taxation, 509 U.S. 86, 96, 113 S.Ct. 2510, 125 L.Ed.2d 74
(1993)]. The Ninth Circuit thus properly relied upon its
1998 decision in Burrey, which borrowed the one-year
limitations period adopted by the California Court of Appeal
in 1996 for tortious wrongful discharge claims in California.
In doing so, the Ninth Circuit in no way “did
violence" to ERISA's “broad remedial purposes." (See
Petition, p. 12). Congress and the courts have traditionally

"Petitioners refer to the California Court of Appeal's decision in Barton,
supra, 43 Cal.App.4th 1200. They con‘inue to ignore the fact, however,

that the Ninth Circuit found that the one-year statute of limitations under
C.C.P. § 340(3) applied to claims for wrongful discharge in violation of

public policy in a decision issued eight years earlier. See Funk v. Sperry
Corp., 842 F.2d 1129, 1133 (9th Cir. 1988).

19

applied shorter statute of limitations periods to labor-based
claims which arise out of major consequences such as the
loss of employment, since such consequences are "known to
the employee from the moment the action occurs" and thus
provide an immediate basis for an “adequate pre-filing
inquiry" that Petitioners contend they should have had time
to make. See Anhert, supra, 982 F.Supp. at 1326; see also
Title VII of the U.S. Civil Rights Act of 1964, 42 U.S.C. §
2000e-5(e)(1) (providing that employment discrimination
claims are generally required to be filed within 180 days).

Indeed, Petitioners readily acknowledge the fact that
the lower federal courts have routinely and consistently
applied limitations periods of two years or less to § 510
actions, which would have barred their claim here. See
Petition, n. 6 (citing cases applying two-year limitation
periods under Alabama and Georgia law to § 510 actions); n.
7 (citing authority applying Texas’ two-year wrongful
discharge employment discrimination limitation to § 510
claim and Louisiana's one-year limitation period for
wrongful discharge actions); Anhert v. Delco Electronics
Corp., supra, 92 F.Supp. at 1326, and cases cited therein.
Their contention that borrowing a limitations period of less
than three years somehow contravenes ERISA's "remedial
purposes" is therefore squarely at odds with the substantial
body of case law applying shorter limitations periods to §
510 claims.

Moreover, to the extent that it is even relevant, the
Ninth Circuit in Felton v, Unisource Corp., 940 F.2d 503,
511-12 (9th Cir. 1991), did not hold that a one-year statute of
limitations would "interfere with the policy that underlies
ERISA," as Petitioners contend. Rather, in adopting the two-
year statute of limitations applicable to wrongful discharge

20
claims under Arizona law, the Felton court merely noted in
dictum that this conclusion was supported by its own earlier
decision involving a different ERISA claim, in which it said
that importing too short a period of limitations under state
law would “interfere with the strong federal policy that
underlies ERISA." Id. at 513, citing Hawaii Carpenters Trust
Funds v. Waiola Carpenter Shop, Inc., 823 F.2d 289, 298
(9th Cir. 1987).'? Felton was therefore entirely consistent
with the Ninth Circuit's later decisions in Hinton v. Pacific
Enterprises, 5 F.3d 391, 394 (9th Cir. 1993), cert. den. 511
U.S. 1083 (1994) and Burrey, supra, both of which held that
the limitations period for § 510 actions in California is the
one-year statute of limitations contained in C.C.P. § 340(3)
for tortious wrongful discharge claims. Finally, to the extent
that Petitioners contend otherwise, this presents only an
intra-circuit conflict which has now been effectively resolved
by Burrey, and is an insufficient ground for review.

"Felton also expressly rejected the argument that Arizona's statute of
limitations for actions based on violations of statutes should apply to
ERISA § 510 claims. The court reasoned that to find that a § 510 claim
is most analogous to a statutory claim, merely because ERISA is a
statute, reflects "circular reasoning." Ibid., 940 F.2d at 512. The Barton
court later agreed, reasoning that the cause of action for wrongful
termination in violation of public policy is itself a "common law,
judicially recognized cause of action, not a liability created by statute."
Ibid., 43 Cal.App.4th at 1209, n.6. For this reason, Section 338(a) was
therefore clearly not the appropriate limitations period to apply to
Petitioners’ § 510 claim.

21

Il.

CERTIORARI IS COMPLETELY
INAPPROPRIATE TO REVIEW
WHETHER RESPONDENTS WAIVED
THEIR STATUTE OF LIMITATIONS
DEFENSE OR WHETHER THE
LIMITATIONS PERIOD WAS TOLLED

Lastly, Petitioners contend that Respondents waived
their statute of limitations defense by failing to raise it in
their initial Rule 12(b)(6) motion filed in 1993. They also
contend that the appropriate limitations period was somehow
“equitably tolled" due to their ignorance of the limitations
period prior to 1996. Both of these contentions are patently
without merit and far too specific to the procedural
circumstances of this case to warrant Supreme Court review.
Because the statute of limitations defense here was raised in
the answer and asserted in a motion to dismiss before trial,
this case is easily distinguishable from the cases cited by
Petitioners. See, e.g., Zipes v. Trans World Airlines, Inc.,
455 US. 385, 398, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982)
(ninety-day limitation period for filing EEOC charge under
Title VII held not jurisdictional and waived when not
asserted until after settlement); Zenith Radio Corp. v.
Hazeltine Research, 401 U.S. 321, 332-3, 91 S.Ct. 795, 28
L.Ed.2d 77 (1971) (failure to raise defense until after trial);
Van Sant v. American Express Co., 169 F.2d 355, 372

(1948) (failure to raise a statute of limitations defense at first
trial before remand).

It is in fact well settled that a party may raise a
defense of failure to state a claim upon which relief can be

22

granted in any pleading permitted or ordered under Rule
7(a), or by motion for judgment on the pleadings, or at the
trial on the merits. Fed. Rule of Civ. Proc. 12(h)(2). As the
district court itself noted in a related action between the
Santa Fe Respondents and Petitioners’ labor unions, a
defendant preserves an affirmative defense if it includes it in
its answer to the plaintiffs' pleading. Wholesale & Retail
Distribution Teamsters v. Santa Fe Terminal Services, 826
F.Supp. 326, 330 (C.D. Cal. 1993). Indeed, a defendant may
even raise an affirmative defense for the first time on
summary judgment, absent prejudice to the plaintiff. See
Rivera v. Anaya, 726 F.2d 564, 566 (9th Cir. 1984); Healy
Tibbitts Construction Co. v. Insurance Company of North
America, 679 F.2d 803, 804 (9th Cir. 1982).
Although the statute of limitations defense to the §
510 claim was not among the grounds that Respondents
initially raised in their motion to dismiss filed in 1993, it was
expressly included in the affirmative defenses pleaded in
their Answers to the Second Amended Complaint filed in
1998. The defense was also specifically asserted on two
occasions prior to that time in separate motions to dismiss
plaintiffs' pleading following the remand of this action to the
district court in 1997, and was raised again on summary
judgment. Respondents therefore clearly did not waive this
defense under established law, and the appellate court
properly rejected this argument. (See Appendix I, p. 6a).
Nor could Respondents’ failure to raise the statue of
limitations defense in 1992, or Petitioners' claimed ignorance
of the limitations period, have operated as any kind of
“equitable tolling." (See Petition, p. 27). Where a state
limitations period is applied to an action arising under a
federal statute, the state's tolling provisions should be given

23

effect unless they conflict with the federal statute's goal.
Hardin v. Straub, 490 U.S. 536, 538-44, 109 S.Ct. 1998, 104
L.Ed.2d 582 (1989). As the Ninth Circuit noted, in
California the application of equitable tolling principles
requires some wrongdoing on the part of the defendant.
(App. I, 8a). None was present here.

Moreover, under California law, equitable tolling
does not excuse a plaintiff who is merely ignorant of the
applicable limitations period, as opposed to the facts
underlying the claim. Gutierrez v. Mofid, 39 Cal.3d 892,
898-99 (1985). It is awareness of facts, not of their legal
significance, which starts the running of the statute of
limitations. Jolly v. Eli Lilly & Co., 44 Cal.3d 1103, 1109-
10 (1988). Hence, Petitioners’ claim that they were unaware
of the limitations period applicable to § 510 actions is plainly
insufficient to warrant an extended filing period. In any
event, this question of the application of state law on
equitable tolling to the specific facts and procedural
circumstances of this case does not warrant Supreme Court
review.

Jd

CONCLUSION

For all of the foregoing reasons, the petition must be
denied in all respects.

Dated: _May 24, 2000

Respectfully submitted,

Ronald W. Novotny
Counsel of Record

Jack R. White

HILL, FARRER & BURRILL LLP
300 South Grand Avenue
37th Floor
Los Angeles, CA 90071-3147
(213) 620-0460

Attorneys for Respondents

THE BURLINGTON NORTHERN
AND SANTA FE RAILWAY
COMPANY and SANTA FE
TERMINAL SERVICES, INC.

25

Patrick W. Jordan
Counsel of Record
Neil O. Andrus
JEFFER, MANGELS, BUTLER & MARMARO LLP
One Sansome Street, 12th Floor
San Francisco, CA 94104-4430
(415) 398-8080

Attorneys for Respondents
IN-TERMINAL SERVICES, INC. and MI-JACK
PRODUCTS, INC.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0928%3A2. Public record. Not legal advice.