Opposition Brief — Hegger v. Visteon Automotive Systems, Inc. (No. 06-454)

(A) FILED

No. 06-454 OCT 5 - 2006

| SRR OF TH CLE

SUPREME COURT. 7h

5n The

Supreme Court of the Anited States

¢

WILLIAM F. HEGGER,

Petitioner,

V.

VISTEON AUTOMOTIVE SYSTEMS, INC.,

and FORD MOTOR CO.,

Respondents.

+

On Petition For A Writ Of Certiorari \

To The United States Court Of Appeals

For The Sixth Circuit

S

RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

-

JOHN R. HAMILTON

Counsel of Record

FOLEY & LARDNER LLP

111 N. Orange Avenue

Suite 1800

Orlando, Florida 32801

(407) 423-7656

Attorneys for Respondents

——

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED FOR REVIEW

Whether the United States Court of Appeals for the

Sixth Circuit erred in affirming the district court’s taxa-

tion of $3,842.70 in court costs against the petitioner,

notwithstanding the petitioner’s contention that the court

of appeals failed to consider the comparative financial

resources of the parties, when: (1) the petitioner’s claims

against the respondents were resolved adversely to the

petitioner through a summary judgment that was affirmed

on-appeal; (2) the petitioner failed to argue, in either the

district court or the court of appeals, that the comparative

financial resources of the parties warranted a departure

from the general rule that costs should presumptively be

taxed against the nonprevailing party; (3) the petitioner

presented no evidence that he suffered from limited

financial resources or was unable to pay the costs in

question; and (4) the petitioner has otherwise provided no

basis for concluding that the court of appeals erred in

failing to find an abuse of discretion in the district court’s

taxation of costs.

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INTERESTED PARTIES AND

CORPORATE DISCLOSURE STATEMENT

The caption sets forth all of the parties to this case,

except that two other entities were defendants (along with

the respondents) in the district court: United Auto Work-

ers International and United Auto Workers Local 737.

Those entities were not named as appellees when the

petitioner appealed to the United States Court of Appeals

for the Sixth Circuit.

The corporate respondents have no parent companies.

Moreover, no publicly held company owns ten percent or

more of either respondent’s stock.

ili

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW..............00000 i

INTERESTED PARTIES AND CORPORATE DIS-

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TABLE OF AUTHORITIES

CASES

Cantrell v. International Broth. Of Elec. Workers,

AFL-CIO, Local 2021, 69 F.3d 456 (10th Cir.

Compania Pelineon De Navegacion, S.A. vu. Texas

Petroleum Co., 540 F.2d 53 (2d Cir. 1976), cert.

denied, 429 U.S. 1041, 97S. Ct. 741, 50 L. Ed. 2d

TI NRE Pa rin ieveniiedieeastneheceapeiv as tahinnsninsdanlaeianaaniiie

Constantino v. American S/T Achilles, 580 F.2d 121

CREE SAEs SF ccarrccisistennsbinsicnnicvarniiinsnan

Crawford Fitting Co. v. J.T: Gibbons, Inc., 482 U.S.

437, 107 S. Ct. 2494, 96 L. Ed. 2d 385 (1987)...........

Delano v. Kitch, 663 F.2d 990 (10th Cir. 1981), cert.

denied, 456 U.S. 946, 102 S. Ct. 2012, 72 L. Ed.

Fe Se cestisibistevsshcisxidetinidirtaniacartsemsandeniareins

National Collegiate Athletic Ass’n v. Smith, 525

U.S. 459, 119 S. Ct. 924, 142 L. Ed. 2d 929 (1999)...

National Organization for Women v. Bank of

California, 680 F.2d 1291 (9th Cir. 1982)............06.

Serna v. Manzano, 616 F.2d 1165 (10th Cir. 1980).......

United States v. Ortiz, 422 U.S. 891, 95 S. Ct. 2585,

BD Be, Ee: Be GIS IG TO) ccs evenevsinscrcversnsevsssniceteseronns

Whitfield v. Scully, 241 F.3d 264 (2d Cir. 2001)..........

STATUTES

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Be I, 0 RZOGEED vcevessvccsccsvnsiccsonsscnnsisveesvicerssarsiatsenies

28 U.S.C. § 1291

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TABLE OF AUTHORITIES — Continued

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JURISDICTION

The district court had original jurisdiction over this

case pursuant to 28 U.S.C. § 1331 because the petitioner,

William F. Hegger (“Hegger”), asserted claims against the

respondents, defendants in the trial court, pursuant to

various federal] statutes. R:1; see APP:6a.’ The district

court entered summary judgment against Hegger and in

favor of the respondents. R:52; APP:16a-19a. The United

States Court of Appeals for the Sixth Circuit affirmed that

decision. APP:5a-14a. In Case No. 06-299, now pending in

this Court, Hegger is requesting that this Court grant

certiorari to review that decision.

In the meantime, following the clerk of the district

court’s taxation of costs against him in the amount of

$3,842.70 (R:67, 70; APX:38, 42), Hegger filed a series of

motions objecting to those costs. R:69, 71, 73; APX:40-41,

43-44, 46-47. The district court denied the last of those

motions through an order entered on September 7, 2005.

R:74; APX:48; APP:15a. Hegger filed a notice of appeal on

September 26, 2005. R:75; APX:49. Hegger’s notice of

appeal was timely under rule 4 of the Federal Rules of

Appellate Procedure, and the court of appeals had jurisdic-

tion over the appeal pursuant to 28 U.S.C. § 1291.

The Sixth Circuit’s decision affirming the district

court’s award of costs to the respondents was issued on

June 30, 2006. APP:la-4a. Hegger filed no post-decision

' The record on appeal is cited both as “R:__,” according to docket

number, and, when possible, as “APX:__,” according to page number of

the joint appendix that the parties filed with the Sixth Circuit. Hegger’s

petition is cited as “P:_,” according to page number. The appendix to

Hegger’s petition, setting forth relevant decisions of the court of appeals

and the district court, is cited as “APP: _,” according to page number.

motions. He filed his petition for certiorari with this Court

on September 25, 2006. The petition was timely under rule

13.1 of this Court’s rules. Hegger states that this Court’s

“jurisdiction over the instant controversy” arises under 28

U.S.C. § 1252. P:1. He is mistaken. That statute was

repealed in 1988. See Pub. L. 100-352, § 1. This Court’s

jurisdiction actually exists pursuant to 28 U.S.C.

§ 1254(1).

The respondents agree with Hegger that rule 12.5 of

this Court’s rules is not applicable to his petition. P:1. The

reason for that rule’s inapplicability, however, is not, as

Hegger says, because his petition is allegedly “predicated

on errors made by the United States Court of Appeals for

the Sixth Circuit.” P:1. Instead, the reason rule 12.5 does

not apply to Hegger’s petition is simply because he is nota

cross-petitioning respondent.

Similarly, although the respondents concur with

Hegger that neither rule 29.4(b) nor (c) applies here, the

reason is not, as Hegger states, because “neither the

United States nor any department thereof is a party to

these proceeding.” P:1. Rather, the reason that rule 29.4(b)

or (c) is inapplicable here is because this case does not

draw into question the constitutionality of any federal or

state statute.

STATEMENT OF THE CASE

This is a case involving alleged employment discrimi-

nation, in which Hegger, the employee, sued the respon-

dents, his employers. See APP:6a. On January 3, 2005, the

district court granted summary judgment to the respon-

dents on the merits of Hegger’s claims. R:52; APP:16a-19a.

3

Hegger unsuccessfully appealed that decision to the court

of appeals. APP:5a-14a. His certiorari petition in which he

is seeking review of that decision is now pending before

this Court in Case No. 06-299.

Meanwhile, following the summary judgment in their

favor, the respondents filed with the district court a bill of

costs for $4,212.70. R:55; APX:13; see 2a. A few days later,

the clerk of the district court entered a notice of refusal to

consider the bill because it omitted a date and time certain

for presentation to the clerk, as required by a local rule of

the district court. R:58; APX:27; see APP:2a. The respon-

dents then filed a motion with the district court for review

of the clerk’s denial of costs. R:59; APX:28; see APP:2a. The

district court granted that motion, finding that the defi-

ciency in the bill had been cured. R:63; APX:32; see

APP:2a. In accordance with that order, the clerk taxed

costs against Hegger in the amount of $3,842.70. R:67, 70;

APX:38, 42: see APP:2a.

Hegger filed a series of motions objecting to the costs

that had been taxed against him. R:69, 71, 73; APX:40-41,

43-44, 46-47; see 2a. The district court overruled all of

Hegger’s objections and approved the costs awarded to the

respondents. R:72, 74; APX:45, 48; see APP:2a, 1l5a.

Hegger appealed. R:75; APX:49.

On appeal, Hegger’s sole argument was “that his due

process rights were violated when the defendants were

awarded costs as the bill was submitted as incomplete

under the district court’s local rules and the bill was not

corrected until after time to do so had run.” APP:3a.

Applying the abuse-of-discretion standard of review, the

court of appeals rejected Hegger’s argument, noting that

an abuse of discretion is presented only when an appellate

4

court “reaches a firm and definite conviction that the trial

court committed a clear error in judgment.” APP:3a.

The court of appeals noted the language of rule

54(d\(1) of the Federal Rules of Civil Procedure, which

presumptively entitles a prevailing party to the recovery of

costs. APP:3a. The court then disposed of Hegger’s due

process argument as follows:

Hegger asserts that because the defendants made

a clerical error in their bill of costs by omitting a

date and time certain as required by a local court

rule, his due process rights were violated. No

such requirement exists in Rule 54(d)(1). Hegger

was notified of the demand which the defendants

documented. The defendants’ clerical error did

not violate Hegger’s due process rights or Rule

54(d)(1). As Rule 54(d)(1) entitles the defendants

to their costs and Hegger is liable for those costs,

the district court’s decision to grant defendants

costs was not an abuse of discretion.

APP:3a. The decision of the court of appeals issued on

June 30, 2006. APP:la. Hegger did not seek any sort of —

post-decision relief from the court of appeals.

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ARGUMENTS FOR DENYING THE PETITION

Hegger’s sole argument is that the taxation of costs

against him was an abuse of discretion due to his alleged

limited financial resources and the comparative financial

disparity between him and the respondents. P:4. According

to him, the court of appeals erred because it “made not the

slightest effort to compare or contrast” the respective

financial resources of the parties. P:4. Hegger’s argument

is completely without merit, and he has provided this

Court with no basis for granting certiorari.

It is quite true that the court of appeals did not

consider the disparity-of-financial-resources argument

that Hegger is now making. It failed to do so for the most

basic of reasons: Hegger did not make that argument —

either in the court of appeals or in the district court. He is

making that argument for the first time in the certiorari

petition that he has filed with this Court. That factor

alone is a sufficient ground for denying Hegger’s petition.

See National Collegiate Athletic Ass’n v. Smith, 525 U.S.

459, 470 (1999) (Court does not decide issues in the first

instance issues not decided below); United States v. Ortiz,

422 U.S. 891, 898 (1975) (Court declined to consider issue

raised for first time in petition for certiorari).

Nor did Hegger provide either the district court or the

court of appeals with any evidence to support his conclu-

sory suggestion that he is unable to pay the rather mini-

mal costs that were taxed against him. Without such

evidence of record, the court of appeals would have had no

basis for relieving Hegger of the duty to pay costs, even if

he had made an argument predicated on his purported

financial condition.

Rule 54(d)(1) of the Federal Rules of Civil Procedure

provides that “[e]xcept when express provision therefor is

made either in a statute of the United States or in these

rules, costs other than attorneys’ fees shall be allowed as

of course to the prevailing party unless the court otherwise

directs.” Fed. R. Civ. P. 54(d)(1). As this Court has recog-

nized, and as even Hegger acknowledges (P:3), the district

court was entrusted with broad discretion in determining

the issues concerning the taxation of costs. See Crawford

6

Fitting Co. v. J.T: Gibbons, Inc., 482 U.S. 437, 441-42

(1987).

Hegger did not demonstrate to the court of appeals

that the district court abused its discretion in taxing costs

against him. Indeed, it would have been quite unusual if

the district court had not done so.

To be sure, “Rule 54(d) generally grants a federal

court discretion to refuse to tax costs in favor of the pre-

vailing party.” Jd. at 442. But that rule “provides that the

cost shall be taxed against the losing party unless the

court otherwise directs.” Jd. at 441. When a district court

departs from the general rule and declines to award costs

to a prevailing party, the courts of appeals have consis-

tently required the district courts to have an evidentiary

basis for doing so and to state their reasons for that

departure, so that the courts of appeals can determine

whether the district courts acted within their discretion.

See, e.g., Whitfield v. Scully, 241 F.3d 264, 270 (2d Cir.

2001); Cantrell v. International Broth. Of Elec. Workers,

AFL-CIO, Local 2021, 69 F.3d 456, 458-59 (10th Cir. 1995);

Delano v. Kitch, 663 F.2d 990, 1001 (10th Cir. 1981); Serna

uv. Manzano, 616 F.2d 1165, 1167-68 (10th Cir. 1980);

Constantino v. American S/T Achilles, 580 F.2d 121, 123

(4th Cir. 1978); Compania Pelineon De Navegacion, S.A. v.

Texas Petroleum Co., 540 F.2d 53, 56-57 (2d Cir. 1976).

Here, Hegger provided the district court with abso-

lutely no evidentiary basis — or with any other valid

reason — for departing from the presumption that costs are

to be taxed against the losing party. And he certainly has

not demonstrated that the court of appeals erred in affirm-

ing the district court’s taxation of those costs — particu-

larly when the argument that Hegger is now making was

never pursued before either that court or the district

7

court. Moreover, Hegger has not given any reason what-

soever why the decision by the court of appeals, even if it

were wrong, would be worthy of this Court’s certiorari

review. See S. Ct. R. 10.

What happened here was a typical, standard taxation

of costs after a plaintiff lost on the merits. There was no

genuine appellate issue for the Sixth Circuit to consider,

and there is most definitely no “certworthy” issue for this

Court to review either.

CONCLUSION

For the foregoing reasons, the respondents respect-

fully request that the Court deny Hegger’s petition for a

writ of certiorari.

Respectfully submitted,

JOHN R. HAMILTON

Counsel of Record

FOLEY & LARDNER LLP

111 N. Orange Avenue

Suite 1800

Orlando, FL 32801

(407) 423-7656

Attorneys for Respondents

* The respondents take no position on whether the district court

would have abused its discretion if it had denied costs to them based

upon Hegger’s presentation of evidence of the parties’ disparate

financial] resources. Hegger presented no such evidence, he made no

such argument, and the district made no decision of that nature. That

question is not presented in this case, and Hegger’s citation (P:4) to

National Organization for Women v. Bank of California, 680 F.2d 1291

(9th Cir. 1982), is therefore irrelevant.