# Reply Brief — Nemesis Veritas, L. P. v. Toto

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1237%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 2003
- **Citation:** 539 U.S. 914

## Text

ia. ourt, US.
FILED

LY) MAY 1 4 2003

OFFICE OF THE CLERK | .

No. 02-1292

Supreme Court of the Anited States
October Term, 2002

NEMESIS VERITAS, L.P. f/k/a MCMAHAN & COMPANY
and D. BRUCE MCMAHAN,
Petitioners,

-against-

WILLIAM A. TOTO,
Respondent.

REPLY TO BRIEF IN OPPOSITION

PATTI E. EVANS

Counsel of Record

LEIGH R. ISAACS

ISAACS & EVANS, LLP

521 Fifth Avenue - 17th Floor
New York, New York 10175
(212) 292-4412

[Reproduced on Recycled Paper]

DICK BAILEY SERVICE (212) 608-7666 (718) 522-4363 (516) 222-2470 (914) 682-0848 Fax: (718) 522-4024
1-800-531-2028

TABLE OF CONTENTS
TABLE OF AUTHORITIES ...........:csssccsseeseseeeeseseneees il

RESPONDENT’S BRIEF DEMONSTRATES WHY
THE WRIT SHOULD BE GRANTED ...............-0esseeee+ 1

A. The Eleventh Circuit’s Improper Determination
Undermines A 60 Year Old Rule Concerning The
Choice-Of-law Analysis Required In Diversity
DID sitiiorescsccsmvcmensinrcesprizcnauemineseninvmnsnietniioes 1

B. The Eleventh Circuit’s Determination
Conflicts With A Determination Made By The
TN I os ivcsiitesaisnsereisimvuopiatiicnlincenenimnniinnt 2

CONCLUSION ccccseesensssosseocsveensvensnnesvenvesensavenosonsseoonons 4

TABLE OF AUTHORITIES
Cases: Pages

BDO Seidman v. British Car Auctions,

802 So.2d 366 (Fla. 4 DCA 2001) ....c.cesccsessesseesees 1,2,4
Boyd Rosene and Associates v. Kansas Municipal

Gas Agency, 123 F.3d 1351 (10 Cir. 1997) .......essese0e- 2
Boyd Rosene and Associates v. Kansas Municipal

Gas Agency, 174 F.3d 1115 (10" Cir. 1999) .....seseseee 3
Day & Zimmermann, Inc. v. Challoner,

423 US. 3, 96S. Ct. 167, 46 L.Ed2 3 (1975)...........0... 1
McMahan v. Toto, 256 F.3d 1120 (11™ Cir. 2001)
amended 311 F.3d 1077 (11™ Cir. 2002) ........e.cesseee0- 3,4
Statutes:

Fin. Stat. S76G TP ..xssicericissinmnniienaiipiamaiianaaaale 1,2

li

RESPONDENT’S BRIEF DEMONSTRATES WHY
THE WRIT SHOULD BE GRANTED

A. The Eleventh Circuit’s Improper
Determination Undermines A 60 Year Old
Rule Concerning The Choice-Of-Law
Analysis Required In Diversity Actions

Respondent admits that Fla. Stat. §768.79 is a state
substantive law and that the issue facing the Eleventh Circuit
in this diversity action was whether the substantive law of
Virginia or Florida applied (Resp. Brief p. 4). It also is
undisputed that, to determine which state’s law to apply, the
Eleventh Circuit was required to apply the forum state’s choice
of law rules. Day & Zimmermann, Inc. v. Challoner, 423 U.S.
3, 96 S. Ct. 167, 46 L.Ed2 3 (1975). See Resp. Brief p. 4.
Respondent does not and cannot deny that Virginia law, and
not Florida’s §768.79, would apply in this case had the
Eleventh Circuit applied Florida’s choice of law rules in
ascertaining which law to apply.

Respondent is wrong in asserting (Ibid.) that a federal
court is not required to follow a choice-of-law analysis when
the state court failed to do so. The case cited for this
proposition, Day & Zimmerman, supra, states exactly the
opposite (423 U.S. at 4-5, 96 Ct. at 168): “(T]he conflict-of-
laws rules to be applied by a federal court in Texas must
coniorm to those prevailing in the Texas state courts.***The
Court of Appeals in this case should identify and follow the
Texas conflicts rule. What substantive law will govern when
Texas’ rule is applied is a matter to be determined by the Court
of Appeals.” Thus, the holding in BDO Seidman v. British Car
Auctions, 802 So.2d 366, 368 (Fla. 4" DCA 2001), that Fla.
Stat. §768.79 “should be applied without engaging in a conflict

of laws analysis” because, according to the statute, it “applies
to ‘any civil action for damages filed in the courts of this
state’” is irrelevant in a federal diversity action since the issue
in the first instance is whether §768.79 applies at all.

Finally, it cannot be asserted that BDO Seidman
interpreted Florida’s choice-of-law rules. BDO specifically
refused to engage in any choice-of-law analysis.

Therefore, there is an urgent need for this Court to
correct the Eleventh Circuit’s misapprehension of the law so as
to prevent the undermining of a 60 year old rule concerning the
choice-of-law analysis required in diversity cases.

B. The Eleventh Circuit’s Determination
Conflicts With A Determination Made By
The Tenth Circuit

The Petition noted that the Eleventh Circuit’s failure to
employ a choice-of-law analysis in considering whether to
apply a state attorney fee statute in a diversity case conflicts
with a determination of the Tenth Circuit and that this is a
substantial reason for granting certiorari. In Boyd Rosene and
Associates v. Kansas Municipal Gas Agency, 123 F.3d 1351
(10" Cir. 1997)(En banc), the Tenth Circuit directed the lower
court to first apply the forum state’s choice-of-law rules in
determining which state’s law to apply in respect of the award
of attorney’s fees.

Respondent is wrong in contending that (Resp. Brief p.
4) “the Tenth Circuit followed the analysis mandated by the
forum state of Oklahoma” and that, therefore, no conflict exists.
In Boyd, the Tenth Circuit cited only federal case law in
requiring a choice-of-law analysis (123 F.3d at 1352-3):

First, in this circuit, the matter of
attorney’s fees in a diversity suit is substantive
and is controlled by state law. See Public Serv.
Co. of Colorado v. Continental Cas. Co., 26
F.3d 1508, 1520 (10" Cir. 1994); Missouri
Pacific RR. Co. v. Kansas Gas and Elec. Co.,
862 F.2d 796, 801 (10 Cir. 1988). Second, a
federal court sitting in diversity must apply the
substantive law of the state in which it sits,
including the forum state’s choice-of-law rules.
See Klaxon Co. v. Stentor Elec. Mfg. Co., 313
U.S. 487, 495-97, 61 S.Ct. 1020, 1021-22, 85
L.Ed. 1477 (1941); Barrett v. Tallon, 30 F.3d
1296, 1300 (10" Cir. 1994). ***[R]Jather than
automatically applying the law of the state
providing the substantive contract law, a district
court must first apply the forum state’s choice-
of-law rules in resolving attorney’s fees issues.

Importantly, respondent does not dispute the fact that
the forum state attorney fee statutes of Florida and Oklahoma
both require the assessment of attorney’s fees “In any civil

' The Tenth Circuit subsequently affirmed the lower court’s
determination on remand that Oklahoma’s attorney fee statute was
a substantive, not procedural, law for choice-of-law purposes and
that under Oklahoma choice-of-law principles, Kansas law which
governed the parties’ agreement controlled. Boyd Rosene and
Associates v. Kansas Municipal Gas Agency, 174 F.3d 1115 (10" Cir.
1999). The Tenth Circuit’s analysis is similar to the Eleventh
Circuit’s original decision in McMahan v. Toto, 256 F.3d 1120 (11"
Cir. 2001), amended 311 F.3d 1077 (11" Cir. 2002).

action”. However, the Tenth Circuit determined that the
statutory wording did not permit the ignoring of federal law
mandating a choice-of-law analysis as McMahan implicitly
held by relying on BDO Seidman. Accordingly, there is a
conflict between the Tenth and Eleventh Circuits.

CONCLUSION

The petition for writ of certiorari should be granted.

Dated May 14, 2003

Respectfully submitted,

Patti E. Evans
Counsel of Record
Leigh R. Isaacs
Isaacs & Evans, LLP
521 Fifth Avenue
17" floor
New York, NY 10175
(212) 292-4412

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1237%3A3. Public record. Not legal advice.