Opposition Brief — Carpenter v. Israel

—

No. 01-435

IN THE

Supreme Court of the United States

DANIEL E. CARPENTER,

Petitioner.

DONALD M. ISRAEL and MARK R. TAYLOR,

Respondents

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED StaTES CourRT OF APPEALS FOR THE SECOND CirRCUIT

BRIEF IN OPPOSITION

Jay D. Fiscuer

FISCHER PORTER CALIGUIRE

& Tuomas, P.C.

Attorneys for Respondents

440 Sylvan Avenue

aa Suite 130

On the Brief: Englewood Cliffs, NJ 07632

ALAN C. THOMAS (201) 569-5959

BENJAMIN BENSON

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TABLE OF CONTENTS

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Statement of Facts and Procedural History .......

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

I.

This Court Cannot Grant Petitioner Relief

Because Petitioner Failed To Demonstrate At

Trial The Elements Essential For Obtaining

A “Missing Witness” Inference. ..........

The Missing Witness Rule Is Procedural And

Governed By Federal Law. ..............

The “Missing Witness Rule” Has No Place

Be PERG kG ck one Woawics Na ka

The Court Should Reject Petitioner’s

Invitation To Create A Per Se Rule For An

Opponent’s Former Attorney And Petitioner’s

Former Litigation Adversary. ............

Petitioner Was Not Denied A Fair Trial

Because The Trial Court Never Pre-Judged

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Page

10

11

12

13

15

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TABLE OF CITED AUTHORITIES

Page

Cases:

Allstate Ins. Co. v. Shuler, 53 F.3d 331 (table), 1995

WL 258139 (60 Cie. TORS) oc an ccicdaciseens 12

Deler v. Commodore Cruise Line, No. 92 Civ. 4473,

1995 WL 733655 (S.D.N.Y. Dec. 12, 1995) .... 6

Erie R.R. Co. v. Tomkins, 304 U.S. 64, 58 S. Ct. 817,

$2 L.. Ba. S405 Cae vk fs ceeds chess ce aess 10

Excel Handbag Co. v. Edison Bros. Stores, Inc.,

630 F.2d 479 (5th Cir. 1980) ................ 13

Hanna v. Plummer, 380 U.S. 460, 85 S. Ct. 1136,

24 LE, DORe vic as cs nccuueehunsecueten 10

Herbert v. Wal-Mart Stores, Inc., 911 F.2d 1044

(Sth Cir. 1990), reh’g denied, 917 F.2d 559

(Sila Cer: TOD ec hick ie ies ee 10, 11, 12

Jones v. Otis Elevator Co., 861 F.2d 655 (11th Cir.

9GG) nics cs hace Ga 11

Layne & Bowler Corp. v. Western Well Works, Inc.,

261 U.S. 387, 43 S. Ct. 422 (1923) 2... ccc0se 4

People v. Gonzalez, 68 N.Y.2d 424, 509 N.Y.S.2d

F956, SOR MB Be CR oo vk Sina kxcbeces 7,8

iii

Cited Authorities

People v. Kitching, 78 N.Y.2d 532, 577 N.Y.S.2d 321,

583 N.E.2d 944 (1991) ........ cece ee eee eee

Rice v. Sioux City Memorial Park Cemetery, 349 U.S.

70, T5.S. Ct. G14 CEGSS) 20s ccscccceccsccess

Russell v. National Railroad Passenger Corporation,

189 F.3d. 590 (7th Cir. 1999) ..............-.

Savage v. Thomas J. Shea Funeral Home, Inc.,

212 A.D.2d 875, 622 N.Y.S.2d 363 (3 Dept.

SEE bl ad waehe pike eheeknd ods cence vresece

Stich v. United States, 730 F.2d 115 (3d Cir. 1984),

cert. denied, 496 U.S. 917, 105 S. Ct. 294,

BS 1. BA. 26 229 CISRS) on cc ccccccsccccecs or

United States v. Adeniji, 31 F.3d 58 (2d Cir. 1994) ...

United States v. Barton, 176 F.3d 476 (table), 1999

WL 181682 (4th Cir. 1999) ............-05--

United States v. Caccia, 122 F.3d 136 (2d Cir. 1997)

United States v. Fermin, 208 F.3d 223 (table), 2000

WL 203794 (9th Cir. 2000) .........---5-5--

United States v. Myerson, 18 F.3d 153 (2d Cir. 1994)

“. eee Fee eae eyTeyey yee er Cee PPR eR RS SA EO 8 De

SE EGeavas bavaradeeueeasstaceese et 5, 6, 9, 12

iv

Cited Authorities

Page

United States Constitution:

NN oe cs 8 ac ies cou ee bas Cae 12

Rules:

Federal Rule of Civil Procedure 60(b) ........... 3

United States Supreme Court Rule 10 ........... 3

Other Authorities:

McCormick, On Evidence § 272 ............... 12

TABLE OFAPPENDICES

Page

Appendix A — Excerpts From Final Pretrial Order

Of The United States District Court For

The Southern District Of New York Dated

September 27, 1999 2... .. cece cccccccccesen la

Appendix B — Notice Of Appeal Dated October 9, _

BOGE 60 dann Shik eee 4a

1

STATEMENT OF FACTS AND

PROCEDURAL HISTORY

This action, and all of its many, many incarnations, stems

from a business divorce between Petitioner Daniel E.

Carpenter (“Petitioner”) and Respondents Donald M. Israel

and Mark R. Taylor (“Respondents”). In 1984, the parties

formed Benefit Concepts, Inc. for the purpose of selling life

insurance and qualified retirement plans through the New

England Mutual Life Insurance Company. By the middle of

1991, the parties’ business relationship had completely

deteriorated. On September 3, 1991, the parties’ formalized

their business divorce by executing the Buy-Out Agreement.

The trial in this matter centered on the interpretation of

Paragraph 11 of this Agreement, which made provisions for

_ the transfer of the parties’ pro-rata interest in shares of stock

* in the Omega Reinsurance Company which Petitioner held.

(Petitioner’s App. at 9a). Despite the clear language of

Paragraph 11 and Respondents’ repeated demands, Petitioner

failed to provide Respondents with their respective shares

of this stock. Thereafter, Respondents filed suit against

Petitioner for, among other things, breach of Paragraph 11.

A Bench Trial was held on February 28 and 29, March 1

and April 18, 2000 before United States Magistrate Judge

James C. Francis, IV, of the United States District Court for

the Southern District of New York. Prior to the commencement

of this trial, and during discovery, neither party sought to

subpoena, depose and/or interview the purported draftsman

of the Buy-Out Agreement, Respondents’ former attorney,

Stephen Herbert, Esq. (“Herbert”).

2

Moreover, neither party identified Herbert as a trial

witness in the Final Pre-Trial Order submitted to Judge

Francis on September 27, 1999. (Respondents’ App. A at 2a).

During the trial, Petitioner also made no attempts to call

Herbert as a witness.

On September 22, 2000, the trial court issued its

Memorandum Opinion and Order directing the Clerk to enter

judgment against Petitioner and in favor of Respondents in

the total amount of $584,124.05. (Petitioner’s App. B). In

this memorandum opinion, the trial court ruled that the

Missing Witness Rule was inapplicable, and that an adverse

inference should not have been drawn, because Herbert

was equally available to both sides. (Petitioner’s App. B. at

17a-18a). The Clerk ultimately entered judgment on

September 26, 2000.

Petitioner also declined to raise his counterclaims of

breach of fiduciary duty and restitution, simply because the

trial court, in an exercise of its discretion and without any

indication of prejudgment, warned Petitioner that he would

be sanctioned if he did not prevail on said counterclaims.

Petitioner then filed a timely Notice of Appeal of the

final judgment entered by the trial court on October 6, 2000,

with the United States Court of Appeals for the Second

Circuit. (Respondents’ App. B). On May 3, 2001, the United

States Court of Appeals for the Second Circuit issued its

Summary Order affirming the judgment of the trial court in

all respects, except as to the calculation of damages and

pre-judgment interest. (Petitioner’s App. A). The United

States Court of Appeals also denied Petitioner’s Petition for

Panel Rehearing. The Petition to this Court arises from the

3

Second Circuit’s Summary Order,' and should be denied for

the reasons that follow.

REASONS FOR DENYING THE WRIT

Rule 10 of the Rules of the Supreme Court of the United

States provides that, “Review on a writ of certiorari is not a

matter of right, but of judicial discretion. A petition for a

writ of certiorari will be granted only for compelling reasons.”

As Justice Frankfurter recounted:

[I]t is very important that [the Court] be consistent

in not granting the writ of certiorari except in cases

involving principles the settlement of which is of

importance to the public, as distinguished from

that of the parties, and of cases in which there is

real and embarrassing conflict of opinion .. . [in

the lower courts].

1. As the trial court noted, “this case has a long and rather

tortured history,” (Petitioner’s App. at 6a), and it is far from any

resolution. Upon remand, the trial court recalculated the damages

and pre-judgment interest and directed the Clerk to enter judgment

in favor of Respondents and against Petitioner in the total amount of

$491,639.26. (Petitioner’s App. C). The Clerk ultimately entered

judgment on September 10, 2001. Petitioner’s motion for relief

pursuant to Federal Rule of Civil Procedure 60(b) was denied by the

trial court, which characterized the motion as “entirely frivolous.”

Petitioner has appealed the new damage and interest calculations to .

the Second Circuit. Carpenter v. Israel, et al., U.S. Court of Appeals

for the Second Circuit, Docket No. 01-9175 (filed October 9, 2001).

And as further evidence of the type of bullying referred to by the

trial court, (Petitioner’s App. at 21a), Petitioner has caused one of

his inactive business entities to file another law suit against

Respondents. Voluntary Benefit Systems, Inc. v. Israel et al., U.S.D.C.

S.D.N.Y, Case No. 01-CV-8518 (BDP) (filed September 18, 2001).

4

Rice v. Sioux City Memorial Park Cemetery, 349 U.S. 70,

79, 75 S. Ct. 614, 619 (1955) (quoting Layne & Bowler Corp.

v. Western Well Works, Inc., 261 U.S. 387, 393, 43 S. Ct.

422, 423 (1923) (Taft, C.J.)).

The questions Petitioner presented do not rise to the level

of such importance. Petitioner claims the trial court erred by

applying the Second Circuit version of the so-called “Missing

Witness Rule” rather than the New York version of the rule.

Petitioner, however, cannot meet his burden of proving he

properly invoked the Missing Witness Rule under either law.

Petitioner also claims his due process rights were violated

when the trial court advised him that sanctions would be

imposed if Petitioner pursued counterclaims for breach of

fiduciary duty and restitution at trial. The trial court, which

was fully familiar with Petitioner’s intrigues over the many

years of litigation, noted the parties’ release of claims in the

“divorce” agreement and properly issued its admonishment.

For these reasons, and the reasons that follow,

Respondents respectfully request this Honorable Court to

deny the Petition for a Writ of Certiorari. In the event, the

Court grants the Writ, Respondents respectfully contend the

following: (1) the Missing Witness Rule has no place in the

federal courts since the advent of the Federal Rules of

Evidence and the Federal Rules of Civil Procedure or, in the

alternative, (2) the Missing ne Rule is governed by

federal law.

5

I. THIS COURT CANNOT GRANT PETITIONER

RELIEF BECAUSE PETITIONER FAILED TO

DEMONSTRATE AT TRIAL THE ELEMENTS

ESSENTIAL FOR OBTAINING A “MISSING

WITNESS” INFERENCE.

Petitioner would not be entitled to a “missing witness”

inference under any law, including Petitioner’s view of New

York law. Therefore, this Court cannot grant the relief

Petitioner seeks. Accordingly, the Petition must be denied.

Under federal law, as set forth by the Court of Appeals

for the Second Circuit:

When “a party has it peculiarly within his power

to produce witnesses whose testimony would

elucidate the transaction” and fails to produce such

witnesses, the jury may infer that the testimony,

if produced, would be unfavorable to that party.

Graves v. United States, 150 U.S. 118, 121, 14

S.Ct. 40, 41, 37 L.Ed. 1021 (1893) [other citations

omitted]. However, when a witness is equally

available to both sides, “the failure to produce is

‘open’ to an inference ‘against both parties.’ ”

[citations omitted]. No instruction is necessary

where the unpresented testimony would be merely

cumulative. [citations omitted].

United States v. Torres, 845 F.2d 1165, 1169 (2d Cir. 1988).

See United States v. Myerson, 18 F.3d 153, 158 (2d Cir. 1994).

For a witness to be peculiarly in a party’s control, the Rule’s

6

proponent has to lack meaningful or pragmatic access to the

witness. United States v. Caccia, 122 F.3d 136, 139 (2d Cir.

1997). If the witness is equally available, no inference is

drawn against the non-producing party. United States v.

Adeniji, 31 F.3d 58, 65 (2d Cir. 1994). Moreover, courts have

been reluctant to find a witness practically unavailable when

it appears that the defense had no real interest in calling the

witness to the stand and did not make the slightest attempt

to locate him or seek out his availability, but instead is

engaged in a form of gamesmanship in an effort to obtain a

missing witness charge. Torres at 1169, Deler v. Commodore

Cruise Line, No. 92 Civ. 4473, 1995 WL 733655 at *5

(S.D.N.Y. Dec. 12, 1995).

Before and at trial, Petitioner made no effort whatsoever

to establish factually an entitlement to the adverse inference.

He offered no evidence — no testimony, nor exhibits — to

support his application. Indeed, as the trial court aptly noted,

“There is no indication that [Petitioner] ever attempted to

locate Mr. Herbert, interview him, take his deposition, or

call him as a witness.” (Pet. App. at 18a). Thus the trial court

correctly observed that the Petitioner failed to show Herbert

was available and under Respondents’ control. Failing these

essential prerequisites of the Missing Witness Rule in the

Second Circuit, Petitioner was correctly denied use of any

adverse inference. See Russell v. National Railroad Passenger

Corporation, 189 F.3d. 590, 595-96 (7th Cir. 1999) (no basis

to request missing witness/evidence charge when proponent

never requested the documents in discovery); United States

v. Barton, 176 F.3d 476 (table), 1999 WL 181682 (4th Cir.

1999) (the fact that alleged co-conspirator was in federal

custody in another jurisdiction did not render him unavailable

to defendant who could have requested a writ of habeas

corpus ad testificandum).

7

Petitioner’s efforts would also fail under New York law.

As the New York Court of Appeals observed, the mere failure

to produce a witness at trial is insufficient to justify the

charge. The proponent must show that the uncalled witness

is knowledgeable about a material issue upon which evidence

is already in the case; that the witness would naturally be

expected to provide non-cumulative testimony favorable to

the party who has not called him, and that the witness is

available to such party. People v. Gonzalez, 68 N.Y.2d 424,

427, 509 N.Y.S.2d 796, 799, 502 N.E.2d 583, 586 (1986).?

Moreover, New York requires that the party seeking the

inference, or charge, to notify the court as soon as practicable.

People v. Kitching, 78 N.Y.2d 532, 577 N.Y.S.2d 321, 583

N.E.2d 944 (1991). If this information is available before

2. The Gonzalez court also set forth the evidence necessary to

defeat a request for the adverse inference:

[T]he opposing party, in order to defeat the request to

charge, [must] account for the witness’ absence or

otherwise demonstrate that the charge would not be

appropriate. This burden can be met by demonstrating

that the witness is not knowledgeable about the issue,

that the issue is not material or relevant, that although

the issue is material or relevant, the testimony would be

cumulative to other evidence, that the witness is not

“available”, or that the witness is not under the party’s

“control” such that he would not be expected to testify

in his or her favor. In order to allow for effective judicial

review, it is imperative that all discussions regarding this

matter be clearly set forth on the record so that the

respective positions of each party are readily discernible.

Gonzalez, 68 N.Y.2d at 428, 509 N.Y.S.2d at 799, 502 N.E.2d at

586.

8

trial, the proponent of the charge must promptly notify the

court. Regardless of when the information is available, the

issue must be raised so “the court can appropriately exercise

its discretion and the parties can tailor their trial strategy to

avoid ‘substantial possibilities of surprise’.” People v.

Gonzalez, 68 N.Y.2d 424, 427-28, 509 N.Y.S.2d 796, 799,

502 N.E.2d 583, 586 (1986).

Petitioner does not, and cannot, contend that he complied

with his notice obligations, a fundamental prerequisite of

New York law. The Final Pre-Trial Order (“PTO”) in this

matter was prepared by the parties and signed by the Court

on September 27, 1999, in accordance with the Federal Rules

of Civil Procedure. Each party set forth in the PTO the

witnesses each intended to call. Mr. Herbert is not listed

among the witnesses (for either side). (Respondents’

App. A at 2a). At that moment, Petitioner’s duty to give notice

of his intent to invoke the “Missing Witness Rule” arose,

which he failed to do, despite the fact the trial did not

commence until February 28, 2000, five months later. There

was no notice, and thus New York’s law offers no help to

Petitioner.

Moreover, Petitioner failed at trial and before this Court

to demonstrate that it would have been “natural” for

Respondents to present Herbert’s testimony. Indeed, his

testimony, at best, would have been cumulative and barely

relevant. The issue for trial was the parties’ intention when

they agreed to Paragraph 11 of the Buy-Out Agreement.

(Petitioner’s App. at 14a). If Herbert was the only person in

the world who could testify as to the parties’ intent with

regard to the Agreement, then it might have been natural to

expect Respondents to call him as a witness.

9

In this matter, however, all of the parties, including

Petitioner, had the same, if not greater, amount of knowledge

and information needed to accurately testify regarding the

parties’ intent. Unsurprisingly, all of the parties to the

Agreement, Petitioner and Respondents, testified at trial as

to their respective intent. As such, Herbert’s testimony was

unnecessary, i.e., it would not have been “natural” to call

Herbert to testify. Accord Savage v. Thomas J. Shea Funeral

Home, Inc., 212 A.D.2d 875, 876, 622 N.Y.S.2d 363, 364

(3 Dept. 1995) (in action against funeral home for negligent

failure to prepare body for services and burial, plaintiff was

not entitled to missing witness charge for defendant’s failure

to produce employee who assisted employer in the

preparation of body because the employee’s testimony would

have been cumulative to that of the employer who testified).

Indeed, Petitioner admitted at trial that he was actively

involved in all of the contract negotiations, was given ample

opportunity to review the entire Agreement, and to change

any provisions with which he did not agree. (Transcript of

Trial before the Honorable James C. Francis, IV, February

29, 2000 at 422, 434-35). Moreover, Petitioner read, initialed

and signed the entire Agreement, including Paragraph 11,

and conceded that he was completely satisfied with its

contents. /d. at 422 and 424.

Finally, federal appellate courts “loath” to reverse a trial

court’s use of the “Missing Witness Rule.” Torres, 845 F.2d

at 1170-71. The decision rests in the sound discretion of the

trial court and there is a “deserved reluctance to remove the

issue” from the trial court because of the “usual aura of

gamesmanship that frequently accompanies requests for a

missing witness charge as to which the trial judge will have

a surer sense than an appellate court.” /d.

10

For the reasons stated above, Petitioner cannot prove

entitlement to the benefits of the Missing Witness Rule under

either federal or New York law. Accordingly, the Petition for

a Writ of Certiorari should be denied.

II. THE MISSING WITNESS RULE IS PROCEDURAL

AND GOVERNED BY FEDERAL LAW.

In determining whether federal or state substantive law

governs the applicability of the Missing Witness Rule, this

Court should adopt the definitive standard set forth in Herbert

v. Wal-Mart Stores, Inc., 911 F.2d 1044, 1048 (Sth Cir. 1990),

reh’g denied, 917 F.2d 559 (Sth Cir. 1990). The Herbert Court

conducted an Erie analysis and determined that the

applicability of state substantive law regarding this rule is

not required, pursuant to Erie v. Tomkins. Herbert at 1048.

In Erie R.R. Co. v. Tomkins, 304 U.S. 64, 58 S. Ct. 817,

82 L. Ed. 1188 (1938), this Court held that federal courts

must apply state substantive law when adjudicating state law

claims. Federal law, however, must be applied when

adjudicating procedural matters. Hanna v. Plummer, 380 U.S.

460, 465, 85 S. Ct. 1136, 1140, 14 L. Ed. 8 (1965). Whether

a particular provision is substantive or procedural for Erie

purposes is determined by looking at the twin aims of the

Erie Doctrine: 1) the discouragement of forum shopping;

and 2) the avoidance of inequitable administration of the

laws. Jd. at 468, 85 S. Ct. at 1142.

With regard to forum shopping, it is almost impossible

to conceive a situation in which the Missing Witness Rule

would affect a party’s choice to sue in or remove an action

to federal court. Herbert at 1048. With regard to the second

aim, the Missing Witness Rule is not bound up with

11

the definition of the rights and obligations of the parties under

state law, so that denying the inference would result in

different treatment between those parties suing in federal

court and those in state court. /d. In fact, the Missing Witness

Rule bears no more relation to the elements of a state law

claim or defense than any other evidence from which the

fact finder may infer an evidentiary or ultimate fact. Jd.

In this federal diversity action, the Missing Witness Rule

had absolutely no place, as is it clearly a procedural matter.

The trial took place in a federal court. Accordingly, the

procedures and methods used by the trial judge to manage

this federal trial, which include the decision to render

inferences and/or specific charges regarding the Missing

Witness Rule, were governed not by state substantive law,

but by the Federal Rules of Civil Procedure and Rules of

Evidence.

For these reasons, no other conclusion can be made,

except that the Missing Witness Rule is properly classified

as procedural and that federal law governs its applicability

in this matter. Accordingly, the Petition should be denied.

Ill, THE “MISSING WITNESS RULE” HAS NO

PLACE IN FEDERAL COURTS.

For the reasons set forth at length in Herbert v. Wal-Mart

Stores, Inc., 911 F.2d 1044, 1045-48 (5th Cir. 1990) (dicta),

reh’g denied, 917 F.2d 559 (5th Cir. 1990) and noted in Jones

v. Otis Elevator Co., 861 F.2d 655, 660 n.4 (11th Cir. 1988)

(dicta), Respondents respectfully contend that the “Missing

Witness Rule” has no place in the federal courts. As the Fifth

Circuit noted, the “evidentiary scheme created by the Federal

Rules of Evidence, as complimented by the Federal Rules of

12

Civil Procedure, renders [the rule] an anachronism.” Herbert,

917 F.2d at 1048, Accord Allstate Ins. Co. v. Shuler, 53 F.3d

331 (table), 1995 WL 258139 (6th Cir. 1995) (without

discussion, citing Herbert).

IV. THE COURT SHOULD REJECT PETITIONER’S

INVITATION TO CREATE A PER SE RULE FOR

AN OPPONENT’S FORMER ATTORNEY

AND PETITIONER’S FORMER LITIGATION

ADVERSARY.

It is entirely inappropriate for this Court to establish a

per se rule whereby an opponent’s former attorney and the

proponent’s former litigation adversary would automatically

be considered “unavailable” under the Missing Witness Rule.

Petitioner has not offered any precedent, or statutory

authority, to establish the existence of such a rule. No such

authority exists. Moreover, both the trial and appellate courts

had a clear opportunity to determine whether such a rule

existed and, if so, whether it should have been applied in

this matter. Both courts, however, deemed it completely

unnecessary to make such a determination. See Torres, 845

F.2d at 1171 (citing McCormick, On Evidence § 272 at 807

(“a practice which gives a party a right to [a missing witness]

instruction is undesirable”’)). See United States v. Barton, 176

F.3d 476 (table), 1999 WL 181682 (4th Cir. 1999) (even

though alleged co-conspirator would likely assert a Fifth

Amendment privilege, no missing witness charge was

warranted because the likelihood did not place it particularly

in the Government’s power to produce the witness), United

States v. Fermin, 208 F.3d 223 (table), 2000 WL 203794 (9th

Cir. 2000) (request for missing witness charge denied because

the witness never actually took the Fifth Amendment and

was never subpoenaed). Accordingly, it would be

13

inappropriate for this Court to now create a new rule

regarding Herbert’s unavailability. The Petition, therefore,

must be denied.

V. PETITIONER WAS NOT DENIED A FAIR TRIAL

BECAUSE THE TRIAL COURT NEVER PRE-

JUDGED HIS COUNTERCLAIMS.

The conduct of a fair trial is left to the sound discretion

of the trial judge and an appellate court should not

retroactively substitute its judgment for that of the trial judge,

unless there has been an abuse of discretion. Stich v. United

States, 730 F.2d 115,119 (3d Cir. 1984), cert. denied,

496 U.S. 917, 105 S. Ct. 294, 83 L. Ed. 2d 229 (1984);

Excel Handbag Co. v. Edison Bros. Stores, Inc., 630 F.2d

479 (Sth Cir. 1980).

In this matter, absolutely no evidence exists in the record

to support Petitioner’s belief that the trial court pre-judged

his counterclaims. At trial, the Judge, in an exercise of his

discretion over the conduct ofa trial, simply told Petitioner’s

counsel that, based on the clear language of a release

contained in paragraph 26 of the Agreement, (Petition at 13),

counsel should be careful in wasting the Court’s time by

raising these counterclaims. Moreover, the trial court also

told Petitioner’s counsel that they could raise their

counterclaims, but would be sanctioned only if they do not

prevail. (Petition at 13). The trial court never stated, nor

indicated, that Petitioner would not prevail.

In making this argument, however, Petitioner asks this

Court to re-write history. He wants this Court to undo his

choice of withdrawing his counterclaims, because he now

realizes that such a choice may have been incorrect. Since

14

he has no valid justification to make such a request, he is

now relegated to brazenly portraying the trial court as unjust

and biased towards him.

Finally, the trial court did not create the Scylla and

Charybdis. Instead, Petitioner concocted this imaginary

hazard to further support his flawed claims against the trial

court. The trial court never told Petitioner what course his

choice had to take, or that he would not prevail. He was free

to withdraw his counterclaims, or to simply convince the

trial court that they were meritorious. The fact that Petitioner

voluntarily chose to withdraw counterclaims, which he

obviously thought had no merit, does not create the equivalent

of the Trial Court forcing him to crash into a rock with a sea

monster on it.

Based on the foregoing facts, it is clear that the trial court

did not prejudge Petitioner’s counterclaims. This Court, like

the United States Court of Appeals for the Second Circuit,

should disregard Petitioner’s rational for not raising the

counterclaims and treat it for what it is, utter nonsense.

15

CONCLUSION

For the foregoing reasons, Respondents Donald M. Israel

and Mark R. Taylor respectfully request that this Court deny

the Petition for a Writ of Certiorari.

Respectfully submitted,

Jay D. FIscHER

FISCHER PorRTER CALIGUIRE

& Tuomas, P.C.

Attorneys for Respondents

440 Sylvan Avenue

Suite 130

Englewood Cliffs, NJ 07632

(201) 569-5959

On the Brief:

ALAN C. THOMAS

BENJAMIN BENSON

}

APPENDIX

la

APPENDIX A— EXCERPTS FROM FINAL PRETRIAL

ORDER OF THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

DATED SEPTEMBER 27, 1999

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

Civil Action No. 95-2703

(DAB)(JCF)

DONALD M. ISRAEL and, MARK R. TAYLOR,

Plaintiff,

V.

ee ee

DANIEL E. CARPENTER, BENEFIT CONCEPTS

NEW YORK, INC. and VOLUNTARY

BENEFIT SYSTEMS, INC.,

Defendants.

FINAL PRETRIAL ORDER

The parties having conferred among themselves with the

Court pursuant to F.R.C.P. 16, now therefore the following

statements, directions, and agreements are adopted as the

Pretrial Order herein:

1. JURISDICTION — VENUE:

This action is brought pursuant to 28 U.S.C.

section 1332.

2a

| _ Appendix A

2. JURY/NON-JURY:

The parties have agreed to waive trial by jury.

The parties have agreed that the Honorable James

C. Francis IV will conduct all proceedings in the

case pursuant to 28 U.S.C. Sec. 636(c).

* * * :

fisj* * *

a WITNESSES:

Plaintiffs:

Donald M. Israel

Steven Gucciardi or another representative from

The New England

Mark Taylor

Kenneth Murrell (By deposition)

Defendants: -

Daniel Carpenter

Molly Carpenter

John Olson

Donald Israel

Mark Taylor (By deposition)

Kenneth Murrell (By deposition)

Jack Robinson

3a

Appendix A

[23] 13. MODIFICATION OF ORDER. IT IS ORDERED

that the Court may in order to prevent manifest injustice or

for good cause shown, at the trial of the action or prior thereto

upon application of counsel for each party, made in good

faith, or upon motion of the court, modify this Pretrial Order

upon such condition as the Court may deem just and proper.

s/ Woody Hong

Attorney for Plaintiff

s/ Seth Marcus

Attorney for Defendant

SO ORDERED.

JAMES C. FRANCIS, IV

UNITED STATES MAGISTRATE

JUDGE

Dated: September 27, 1999

New York, New York

4a

APPENDIX B — NOTICE OF APPEAL

DATED OCTOBER 9, 2001

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

95 Civ. 2703 (DAB)(JCF)

DONALD M. ISRAEL and MARK R. TAYLOR,

Plaintiffs,

— against —

DANIEL E. CARPENTER, BENEFIT CONCEPTS

NEW YORK, INC., and VOLUNTARY

BENEFIT SYSTEMS, INC.,

Defendants.

NOTICE OF APPEAL

Notice is hereby given that DANIEL E. CARPENTER,

a defendant in the above-named case, hereby appeals to the

United States Court of Appeals for the Second Circuit from:

(a) the final judgment entered after remand in this

case on September 7, 2001; and

(b) the denial of Carpenter’s motion pursuant to

Fed. R. Civ. P. 60(b).

5a

Appendix B

Dated: Stamford, CT

October 9, 2001

DANIEL E. CARPENTER,

By his attorney,

s/ Jack Robinson/sm

Jack E. Robinson (JR 5124)

Clearwater House

2187 Atlantic Street

Stamford, CT 06902

(203) 425-4500