Opposition Brief — Nemesis Veritas, L. P. v. Toto

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No. 02-1292 MAY 5 ons

In the

Supreme Court of the United States

NEMESIS VERITAS, L. P., FKA MCMAHAN & COMPANY

and D. BRUCE MCMAHAN,

Petitioners,

WILLIAM A. TOTO, -

Respondent.

ON PETITION FOR Writ OF CERTIORARI TO THE

Unitrep States Court OF APPEALS FOR THE ELEVENTH CIRCUIT

RESPONDENT’S BRIEF IN OPPOSITION

Hendrik G. Milne

Counsel of Record

ABALLI, MILNE, KALIL &

ESCAGEDO, P.A.

One Southeast Third Avenue

Suite 2250

Miami, Florida 33131

(305) 373-6600

Attorneys for Respondent

SL AS CS S| APTS: <cNMDTSL MS RSAC. RORNCMNONLROENNS:

Curry & TayLor @ (202) 393-4141¢ HTTP://USSCINFO.COM

RESTATEMENT OF THE ISSUE

Respondent submits that the following more

accurately and succinctly reflects the question presented

by Petitioners:

Is a federal court, which is sitting in diversity

jurisdiction and pledged by federal law to follow the

substantive law of the forum state, required by federal law

to follow a choice of law analysis when to do so would be

contrary to the substantive law of the forum state?

TABLE OF CONTENTS

RESTATEMENT OP TERS BPO i vvessscicasaincietsesnnsbeennteceesines i

TABLE OF CONT EIN sssccecsevsrisnnioaverennnnnanieneeet chapman: ii

TABLE OF AU THIOIEEE Slee vcissecsensissncnumcnenadonenbenmnensenens ili

REASONS FOR DENYING THE WRIT ...... ee eeeeeee l

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TABLE OF AUTHORITIES

CASES

ANSIN V. THURSTON, 101 SO.2D 808, 810 (FLA. 1958)............ 2

BAUER V. STATE, 528 So.2D 6, 11 (FLA. 2D DCA

Se A I A ee Spier CTC TOR 2

BDO SEIDMAN V. BRITISH CAR AUCTIONS, 802 SO.2D

Be A, Pee OOF FE Fics csicssnecesvssevacsencnnvesinsvacesveens ]

BENNETT V. MORALES, 2003 FLA. APP. LEXIS 3790 *

NE I IY ose cok viveps ices ssvicasensnindeatiesevassessinsomineed

BOYD ROSENE AND ASSOCIATES V. KANSAS MUNICIPAL

GAS AGENCY, 123 F.3D 1351 (LOTH CIR. 1997)... ere 4

BRITISH CAR AUCTIONS, INC., V. BDO SEIDMAN,

Sai ap AU OAD COUPE © Wek, PIE) cecensvesscneessecenecvecesensevesovs 2?

DAY & ZIMMERMANN, INC. V. CHALLONER ET AL., 42:33

aa oon aalcca aaa nb ebeisndasievad 4

ERIE R.R. Co. Vv. TOMPKINS, 304 U.S. 64, 78 (1938) ....000... a4

GALINDO V. ARI MUT. INS. Co.. 203 F.3D 771, 775

I caps ky vst cidts aciehoniscnnaemeai en reaeninaionrenien’ 3

JOHNS V. WAINWRIGHT, 253 SO.2D 873, 874 (FLA.

KLANON CO. V. STENTOR ELEC. MFG. Co., 313 U.S.

187, 496-97 (1941)

PARDO V, STATE, 596 SO.2D 665, 667 (FLA. 1992) .............2..3

PASTOR Y. UNION CENT. LIFE. INS. CO., 184 F.SUPP.

2D 1BOL, LBOT (S.D. FLA. 2002) ....ceceeeeesreeseseeneeenneenenesnees 3

STANFILLV. STATE, 384 S0.2D 141, 143 (FLA. 1980)...

WEIMAN V. MCHAFFIE, 470 SO.2D 682, 684 (FLA.

FOIE) «.ceceecscsessssvusencsovescnsnesnersnussorneneusensssosvsosususnsnsontoosanaeys

)

—_

STATUTES

FLA. STAT. § 624.155 ..........:csccccssssssseeecesenssscesessesssessnnaeeesooces 3

ELA. STAT. $ 768.79 ...ccccccccssssccesesesseneeensenessreeeeesessesneeesecones 1,3

RULES

FLA. R. JUD. ADMIN. 2.040 oo. ecccceeeeeeeeeeeeeeeeeeeeeeseeeeeeseeseess

)

REASONS FOR DENYING THE WRIT

In this diversity action, the Eleventh

Circuit correctly followed the law of

the forum state and decided, as a

result, that Florida’s Offer of

Judgment Statute applied, despite the

fact that Virginia law governed the

cause of action.

(a) The Decision in BDO Seidman:

On October 31, 2001, the Fourth District Court of

Appeal became the first Florida appellate court to

decide the issue of whether Florida's Offer of Judgment

Statute, Fla. Stat. § 768.79. applied in Florida cases

where the law of another state governed the cause of

action. BDO Seidman v. British Car Auctions, 802

So.2d 366, 369 (Fla. 4th DCA 2001). Judge Klein, writing

for the majority, held that the correct analysis did not,

strictly, involve the state’s choice of law rules, and that

the statute would apply in all cases otherwise governed

by foreign law. BDO Seidman, 802 So.2d at 369. Judge

Gross concurred, but wrote separately to point out that

even under a choice of law analysis the statute would

apply: “because the offer of judgment statute is

‘procedural’ under Florida choice of law terminology: it

is part of the machinery of Florida's judicial process that

promotes judicial economy.” Jd. at 370.

(b) The Effect of Majority Appellate

Decisions in Florida:

The concurrence of two out of a panel of three

Judges constitutes the decision of a Florida District

Court of Appeal. Fla. R. Jud. Admin. 2.040 (a) (1). The

opinion of a dissenter has no precedential effect. See,

e.g., Bauer v. State, 528 So.2d 6, 11 (Fla. 2d DCA

1988). The concurrence of Judges Klein and Gross in

BDO Seidman, therefore, constituted the decision of

the court.

Florida’s District Courts of Appeal are not

intermediate courts and their decisions are, in most

cases, final and absolute. See, e.g., Ansin v. Thurston,

101 So.2d 808, 810 (Fla. 1958); Johns v. Wainwright,

253 So.2d 873, 874 (Fla. 1971). As the Florida Supreme

Court has stated:

“the decisions of the district courts of

appeal represent the law of Florida unless

and until they are overruled by this Court."

Stanfill v. State, 384 So.2d 141, 143 (Fla.

1980). Thus, in the absence of inter-district

conflict, district court decisions bind all

Florida trial courts. Weiman v. McHaffie,

470 So.2d 682, 684 (Fla. 1985).

Pardo v. State, 596 So.2d 665, 667 (Fla. 1992).

(d) BDO Seidman as governing Florida

law:

The Florida Supreme Court declined to review

the Fourth District’s decision on September 24, 2002.

British Car Auctions, Inc., v. BDO Seidman, L.L.P.,

828 So.2d 384 (Fla. 2002). The Fourth District's decision

Three judges shali constitute a panel for and shall consider each

case. and the concurrence of a majority of the panel shall de

necessary to a decision.” Fla. R. Jud. Admin, 2.040 (a) ( 1).

in BDO Seidman is therefore final and represented the

current law in Florida as to the application of Fla. Stat. §

768.79 in cases otherwise governed by foreign law at the

time of the Eleventh Circuit’s decision. Indeed,

Florida’s Fifth District Court of Appeal has now

expressly approved and followed the Fourth District's

decision in BDO Seidman. See Bennett v. Morales, 2003

Fla. App. LEXIS 3790 * 4 (Fla. 5th DCA 2003)(stating

that “. . . section 768.79 applies to all civil actions for

damages brought in Florida, even where the substantive

law of another jurisdiction is applied”). See also, Pastor

v. Union Cent. Life. Ins. Co., 184 F.Supp. 2d 1301, 1307

(S.D. Fla. 2002)(following the logic of BDO Seidman in

determining the application of Fla. Stat. § 624.155 in a

diversity action).

(e) The Eleventh Circuit's Application of

BDO Seidman:

The issue before the Eleventh Circuit was

whether the United States District Court for the

Southern District of Florida should have applied

Florida's Offer of Judgment Statute, Fla. Stat. § 768.79.

in a case where Florida's choice-of-law rules mandated

that the substantive law of another State governed the

underlying claim. BDO Seidman Stated that in such

circumstances the statute should be applied. There was

no contrary Florida Supreme Court decision. There was

no contrary Florida District Court of Appeals decision.

BDO Seidman was therefore governing. See, Galindo v.

ARI Mut. Ins. Co., 203 F.3d 771. 775 (11th Cir. 2000);

Pardo v. State, 596 So.2d 665, 667 (Fla. 1992). In

diversity cases, the courts of the United States are to

apply the substantive laws of the forum State. Erie R_R.

Co. v. Tompkins, 304 U.S. 64, 78 (1938). That is what

the Eleventh Circuit did.

There is no conflict between the

decision of the Eleventh Circuit in

this case and that of the Tenth Circuit

in Boyd Rosene and Associates U.

Kansas Municipal Gas Agency, 123

F.3d 1351 (10th Cir. 1997).

In diversity cases, the courts of the United States

are to apply the substantive laws of the forum state.

Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). The

choice-of-law rules of the forum state are a part of that

substantive law and may not be ignored. Klaxon Co. v.

Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97 (1941). This,

though, is not to say that a federal court must follow a

choice-of-law analysis when the state court would not

do so. The federal objective is to ensure that two

courthouses on the same block, one State and one

federal. follow the same rules and reach the same result

on any given set of facts. See, eg. Day &

Zimmermann, Inc. v. Challoner et al., 423 U.S. 3, 5

(1975). That uniformity is necessary. These precepts,

though, recognize that federal courts in different states,

applying the laws of those different States, will follow

different analyses and reach different results on similar

legal questions. That lack of uniformity is natural and

expected.

In reaching its decision in Boyd Rosene and

Associates v. Kansas Municipal Gas Agency, 123 F.3d

1351 (10th Cir. 1997), the Tenth Circuit followed the

analysis mandated by the forum state of Oklahoma. In

the present case, the Eleventh Circuit followed the

analysis mandated by the forum state of Florida. Any

difference in result is merely the consequence of the fact

that federal courts considering two, different, attorneys’

fees statutes, in two different. diversity cases, were

bound to follow the two, different analyses mandated by

the laws of the two, different, forum states. There is no

“split” between the two Circuits as to the precepts of the

Jederal law controlling the analysis.

CONCLUSION

For all the foregoing reasons, Respondent

respectfully requests that this Honorable Court deny the

Petition.

Respectfully submitted,