Reply Brief — Britton v. Bayer Corp. (Nos. 07-1466, 07-1467)

FILED

No. 07-1466 JUL 16 2008

OFFICE OF THE CLERK

SUPREMe COURT, U.S.

In The

Supreme Court of the Anited States

*

SANDRA BRITTON, ET AL.,

Petitioners,

V.

BAYER CORPORATION, ET AL.,

Respondents.

On Petition For Writ Of Certiorani

To The United States Court Of Appeals

For The Ninth Circuit

BAILEY PETITIONERS’

REPLY BRIEF

NEIL C. MCCABE

Counsel of Record

THE O’QUINN LAW FIKM

2300 Lyric Centre Building

440 Louisiana St.

Houston, Texas 77002

(713) 223-1000 — Telephone

(713) 223-0103 — Facsimile

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

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TABLE OF CONTENTS

TABLE OF CONTENTS

TABLE OF AUTHORITIES

ARGUMENT

I. THIS CASE DOES NOT INVOLVE AN

ISSUE OF FACT, BUT EVEN IF IT DID,

THE COURT STILL SHOULD GRANT

REVIEW

THE ATTEMPTS TO PROVIDE NOTICE

IN THIS CASE DID NOT SATISFY DUE

PROCESS

A. Sent But Not Received

B. No Evidence

CONCLUSION

TABLE OF AUTHORITIES

CASES

Anderson v. Creighton, 483 U.S. 635 (1987)

City of Akron v. Akron Center for Reproductive

Health, Inc., 462 U.S. 416 (1983)

Douglas v. Marino, 684 F. Supp. 395 (D.N.J.

Florida v. Riley, 488 U.S. 445 (1989)

Hagner v. United States, 285 U.S. 427 (1932)

Herndon v. De la Cruz (In re De la Cruz), 176

B.R. 19 (B.A.P. 9th Cir. 1994)

LaChance v. Erickson, 522 U.S. 262 (1998)

Mullane v. Central Hanover Bank & Trust Co.,

339 U.S. 306 (1950)

North Whittier Heights Citrus Ass’n v. NLRB,

109 F.2d 76 (9th Cir.), cert. denied, 310 U.S.

632 (1940)

Perry v. Leeke, 488 U.S. 272 (1989)

United States v. Bowen, 414 F.2d 1268 (3d Cir.

United States v. Gagnon, 470 U.S. 522 (1985)

United States v. Simmons, 476 F.2d 33 (9th Cir.

United States v. Young, 458 F.3d 998 (9th Cir.

ill

TABLE OF AUTHORITIES — Continued

Webster v. Reproductive Health Servs., 492 U.S.

490 (1989)

Zorach v. Clauson, 343 U.S. 306 (1952)

RULES

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ARGUMENT

According to the respondents, evidence that

something was sent negates uncontroverted evidence

that it was never received, and a court’s accurate

recitation of a standard will suffice even if the court

applied it incorrectly. In what Judge O’Scannlain

referred to as the “universe of due process,” those

notions are untenable. Due process requires a more

logical, more discriminating approach. It has to,

because it is “concerned with ... prejudicial in-

fringement of substantial rights.” North Whittier

Heights Citrus Ass’n v. NLRB, 109 F.2d 76, 85 (9th

Cir.), cert. denied, 310 U.S. 632 (1940).

In seeking to avoid review, the respondents rely

on essentially two arguments: this case presents an

issue of fact and so does not merit the Court’s atten-

tion, and the key documents were transmitted to the

Bailey Petitioners’ counsel. As will be shown below,

neither of those contentions should dissuade the

Court from granting the Bailey Petitioners’ petition

for writ of certiorari and reversing the Ninth Circuit’s

judgment.

' United States v. Young, 458 F.3d 998, 1005 (9th Cir. 2006).

2

THIS CASE DOES NOT INVOLVE AN IS-

SUE OF FACT, BUT EVEN IF IT DID, THE

COURT STILL SHOULD GRANT REVIEW.

The respondents assert that this case involves an

issue of fact — “whether or not Petitioners received”

the documents at issue. Brief in Opposition at 3; see

Brief in Opposition at 7-11. However, they fail to cite

any evidence that the petitioners actually received

the documents. In fact, all of the evidence regarding

receipt shows that they did not. Obviously, when the

evidence on a particular matter is entirely one-sided,

there is no issue of fact.

Furthermore, this Court’s rules specifically allow

for the granting of a petition for writ of certiorari

when the asserted error consists of incorrect fact

findings. Sup. Ct. R. 10. To be sure, this Court has

said that such petitions will be “rarely” granted, id.,

but as Webster will attest, “rare” is a relative term.

Even a small sampling of this Court’s jurisprudence

shows numerous instances in which the Court de-

cided very fact-specific, fact-intensive cases.

For example, in Florida v. Riley, 488 U.S. 445

(1989), the Court held that aerial observation from a

helicopter hovering at 400 feet does not violate any

reasonable expectation of privacy (though helicopter

observation from a lower altitude might). In Perry v.

Leeke, 488 U.S. 272 (1989), the Court concluded that

the right to counsel was not violated when a judge

separated a defendant from his attorney during a 15-

minute recess after the defendant’s testimony on

3

direct examination (though a lengthier separation

may well have). In City of Akron v. Akron Center for

Reproductive Health, Inc., 462 U.S. 416 (1983), the

Court addressed laws requiring that certain informa-

tion be furnished to a woman by a physician or his or

her assistant, carefully distinguishing laws requiring

that such information be furnished by the physician

exclusively. And in Zorach v. Clauson, 343 U.S. 306

(1952), the Court held that a “release time” program

allowing public-school] students to receive religious

instruction during school hours but specifically off-

campus did not violate the Establishment Clause.

Considering such examples, it is no surprise that

members of the Court have indicated that sometimes

fact-specific cases warrant review. See, e.g., Anderson

v. Creighton, 483 U.S. 635, 641 (1987) (“The relative

question in this case ... is the objective (albeit fact-

specific) question whether a reasonable officer could

have believed Anderson’s warrantless search to be

lawful...”) (Scalia, J., writing for the majority);

United States v. Gagnon, 470 U.S. 522, 530, 531

(1985) (Brennan, J., joined by Marshall, J., dissent-

ing) (observing that the case decided by the Court

contained “odd facts” and had a “highly fact-specific

nature”). As Justice Blackmun observed, “the process

of constitutional adjudication itself [ ] is often highly

fact specific[.]” Webster v. Reproductive Health Servs.,

492 U.S. 490, 550 (1989) (Blackmun, J., joined by

Brennan, J., and Marshall, J., concurring in part and

dissenting in part).

4

History disproves the respondents’ theory that

the Court automatically rejects fact-intensive cases.

On the contrary, the window created by Supreme

Court Rule 10 is more than wide enough for this case

to fit through. The Ninth Circuit’s decision strays so

far from the core values of due process — in the vener-

able words of LaChance v. Erickson, 522 U.S. 262,

266 (1998), “the right to notice and a meaningful

opportunity to be heard” — that even if an issue of fact

were involved here, it should not preclude review.

Il. THE ATTEMPTS TO PROVIDE NOTICE IN

THIS CASE DID NOT SATISFY DUE PROC-

ESS.

A. Sent But Not Received

The respondents’ Brief in Opposition features a

veritable parade of declarations that the key docu-

ments in this case were sent to the Bailey Petitioners:

e “Lance Palmer ... forwarded to Peti-

tioners’ counsel a copy of CMO 15 and

15A. ...” Brief in Opposition at 5.

“Defense counsel also mailed a copy of

CMO 15 to Petitioners’ counsel... .” Brief

in Opposition at 5.

“Plaintiffs’ Liaison Counsel forwarded a

copy of this Minute Order to Petitioners’

counsel... .” Brief in Opposition at 5.

“Plaintiffs’ Liaison Counsel forwarded a

copy of this order to Petitioners’ coun-

sel... .” Brief in Opposition at 5.

5

“The first proposed order was e-mailed

to Mr. Catouche Body ... ” Brief in Op-

position at 5.

“(T]he second proposed order was served

on Mr. Funches at Funches & Associ-

ates. ...” Brief in Opposition at 5.

“Petitioners’ attorneys were sent the dis-

trict court’s orders... .” Brief in Opposi-

tion at 8.

“[Ajll CMOs were served upon Petition-

ers...” Brief in Opposition at 12.

“Plaintiffs’ Liaison Counsel ... mailed to

Mr. Funches... all of the district court’s

CMOs and orders ...” Brief in Opposi-

tion at 12.

“Plaintiffs’ Liaison Counsel ... mailed to

Petitioners’ counsel [] CMO 15 and

15A. ...” Brief in Opposition at 12.

“Defense counsel also mailed the letter

to Mr. Funches, along with a copy of

CMO 15...” Briefin Opposition at 13.

“‘(Tlhe certificate of service ... demon-

strated that Mr. Funches was properly

served with a copy of [CMO 15]... .”

Brief in Opposition at 13.

“Plaintiffs’ Liaison Counsel ... mailed to

Mr. Funches at the correct address a

copy of CMO 15... .” Bnef in Opposition

at 14.

6

“(Tlhe certificate of service ... indicates

that Mr. Funches was properly served

with [CMO 15] ...” Brief in Opposition

at 14.

“Petitioners were mailed numerous

documents, including the district court’s

orders ...” Brief in Opposition at 16.

“(T]he mailing of all of these documents

to Mr. Funches ... satisflied] due proc-

ess... .” Brief in Opposition at 16.

“Petitioners were properly mailed copies

of all of the district court's CMOs ... ”

Brief in Opposition at 17 n.4.

Significantly, however, the number of statements that

the Bailey Petitioners actually received the key

documents — as due process required in this case — is

considerably fewer. Even then, most of the respon-

denis’ proclamations of receipt are not based on the

record, but are instead deftly hidden behind the

district court’s dubious findings:

e¢ “The district court also determined that

the Petitioners’ attorneys were receiving

documents...” Brief in Opposition at 6.

“(Tl|he district court found the Petition-

ers’ counsel actually received documents

from the court ...” Brief in Opposition

at 6.

“The district court properly determined

that Petitioners’ attorneys were in fact

aed

‘

»”

receiving documents from the court...

Brief in Opposition at 12.

“(T]he evidence established — as properly

concluded by the district court — that Pe-

titioners’ counsel did receive the appro-

priate documents. ...” Brief in Opposition

at 14.

“As properly determined by the district

court ... Petitioners received documents

sufficient to provide notice of the CMOs

...” Brief in Opposition at 15.

A review of the record shows that there is cer-

tainly evidence of sending, but none whatsoever of

receiving. For example, the respondents rely on the

affidavit of Plaintiffs’ Liaison Counsel Lance Palmer.

Brief in Opposition at 12-14. But essentially, Mr.

Palmer’s affidavit states that he always forwarded

CMOs, other orders, and other relevant documents to

Catouche Body and Delano Funches. In other words,

Mr. Palmer’s affidavit shows that he did his job and

sent the documents he was supposed to send. But

noticeably absent from Mr. Palmer’s affidavit is any

mention of green cards, fax confirmation sheets, or

other any other evidence of actual receipt.

Mr. Palmer testified that he stuck to the routine

which he was supposed to follow. But his generic

affidavit does not and cannot counter the specific

testimony of Mr. Funches and Mr. Body, who testified

that the relevant CMOs and other orders were not, in

fact, received.

8

Their evidence is uncontroverted; yet the Ninth

Circuit dismissed it. Due process demanded that it

not. As one court remarked, “surely truth is consid-

ered important for due process.” Douglas v. Marino,

684 F. Supp. 395, 399 (D.N.J. 1988).

B. Ne Evidence

The rest of the respondents’ suggestions regard-

ing receipt are similarly infirm. They say that “Peti-

tioners do not explain how a number of petitioners

complied with a different CMO by filling out and

serving plaintiff fact sheets if they never received any

documents from the court.” Brief in Opposition at 14.

The Bailey Petitioners have never claimed that they

received no documents from the court. But the record

conclusively shows that they did not receive the most

important ones.

The respondents also hint that the Bailey Peti-

tioners could heve learned that their case had been

dismissed (without notice from the district court)

because the information was available on the court’s

electronic docket via the internet. See Brief in Oppo-

sition at 14. Under that argument, a court could stop

sending out notices altogether (or keep sending them

to the wrong address). So much for the “notice” in

“notice and a hearing.”

* When the Bailey Petitioners’ appeal reached the Ninth

Circuit, the Ninth Circuit's Clerk contacted the O’Quinn Law Firm

and informed them that Catouche Body was still designated as

(Continued on following page)

9

The respondents similarly assert that “proof that

a letter properly directed was placed in a post office

creates a presumption that it reached its destination

in usual time and was actually received by the person

to whom it was addressed.” Brief in Opposition at 16

(quoting Hagner v. United States, 285 U.S. 427, 430

(1932)). Mail intended for the Bailey Petitioners’

counsel but sent to the home of Mr. Body’s grand-

mother was hardly “properly directed.” Furthermore,

an irrebuttable presumption that mail sent is actually

received violates due process; only a _ rebuttable

presumption is acceptable. United States v. Simmons,

476 F.2d 33, 36-37 (9th Cir. 1973); United States v.

Bowen, 414 F.2d 1268, 1273 (3d Cir. 1969). The affi-

davits of Mr. Funches and Mr. Body thoroughly rebut

the presumption here.°

lead counsel and that the error must be corrected. Despite the

Bailey Petitioners’ best efforts to correct the docket sheet error

listing Catouche Body as the lead attorney by removing him and

specifying Dana Morris and Christian Steed of the O’Quinn Law

Firm as lead attorneys, and despite the fact that the district

court granted the petitioners’ Motion to Substitute Attorney and

Designate Lead Counsel, the district court’s docket report still

listed Catouche Body as lead attorney to be noticed. Amazingly,

the docket report also still listed Mr. Bodys grandmother’s

address as the address for the lead attorney to be noticed.

* The respondents say that “the Ninth Circuit has held that

to rebut this presumption, something more than a declaration of

non-receipt is required” (Brief in Opposition at 16), but never

address the Bailey Petitioners’ evidence. That evidence offers far

more than a mere “declaration of non-receipt.” For example, Mr.

Funches’ affidavit states in relevant part:

(Continued on following page)

10

The respondents likewise say that “Petitioners or

their counsel failed to make any efforts to remain

apprised of their case.” Brief in Opposition at 14. The

respondents do not mention that there were commu-

nications between the parties after the suit had been

dismissed that would lead a reasonable person to

believe that the case was still pending. For example,

in letters dated May 26, 2004, June 1, 2004, June 15,

2004, and June 23, 2004 — each one after the lawsuit

had already been dismissed — the respondents pro-

vided information <o the Bailey Petitioners as if the

case had not been dismissed at all.

The District Court’s docket she2t in the Britton case

lists Catouche Body as the lead attorney to be noticed.

This is incorrect. ... 1 have at all times been the lead

attorney for the plaintiffs in the Britton case. . . . Dur-

ing that time, I have never spoken with Lance Palmer,

Plaintiffs’ Liaison Counsel.

A certificate of service was filed on December 8, 2003,

separate from but in reference to the Second [Pro-

posed] Order of Dismissal] With Prejudice For Cases in

Which Plaintiffs Filed Untimely or No Individual

Complaints Under CMOs 15 and 15A. Though my

name appears on the certificate of service, I never re-

ceived a copy of Defendants’ [Proposed] Order of Dis-

missal With Prejudice For Cases in Which Plaintiffs

Filed Untimely or No Individual Complaints Under

CMOs 15 and 15A. In other words, the Britton case

was dismissed based on this pleading and a series cof

orders which I never received. Had I received the

CMO and court order, I would have acted in a timely

manner so as to be in compliance with any and all

mandates of the Court.

11

Last, the respondents’ reliance on Herndon v. De

la Cruz (In re De la Cruz), 176 B.R. 19 (B.A.P. 9th Cir.

1994) (Brief in Opposition at 16), deserves comment

because that case highlights the very error that was

made here. In De la Cruz, “[t]here [wals no depriva-

tion of Due Process since [the creditor] had actual

notice of the Chapter 7 case and had sufficient time to

file a complaint to determine dischargeability[.]” Jd.

at 24 (emphasis added). Due process required actual

notice here, as well, where the stakes were substan-

tially higher.

In sum: Certainly, there is evidence that the key

documents were sent to the Bailey Petitioners. But

there is no evidence that the Bailey Petitioners

actually received them, and there is abundant, un-

contradicted eviuence that they did not.

an

CONCLUSION

Did the Bailey Petitioners receive, as due process

requires, “notice reasonably calculated, under all the

circumstances, to apprise interested parties of the

pendency of the action and afford them the opportu-

nity to present their objections” (Mullane v. Central

Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950))

in regard to the CMQOs, the motion to dismiss, and the

order of dismissal that terminated the:r lawsuit? This

Court’s jurisprudence says no. Because the Ninth

Circuit said yes, the Bailey Petitioners respectfully

12

ask the Court to grant their petition for writ of certio-

rari.

Respectfully submitted,

NEIL C. MCCABE

Counsel of Record

THE O’QUINN LAW FIRM

2300 Lyric Centre Building

440 Louisiana St.

Houston, Texas 77002

(713) 223-1000 — Telephone

(713) 223-0103 — Facsimile

Attorneys for

Bailey Petitioners