# Opposition Brief — Carpenter v. Israel

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2002
- **Citation:** 534 U.S. 1078

## Text

—

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

il

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_2451%3A2. Public record. Not legal advice.