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  FORREST GENE ENGLISH,
v. No. 92-4032 WILLIAM COWELL, et al.,
1. English Was Entitled to Respond to the Union's Evidence and Argument Before the Case Was Dismissed. The fundamental premise on which this appeal turns is English's contention, Appellant's Br. at 9-11, that both the Local Rules and Rule 56 of the Federal Rules of Civil Procedure required the court below to give appellant ten business days, or fourteen calendar days, to file evidence and argument in opposition to the Union's "speaking" motion to dismiss based on their Rule 19 and Rule 10 defenses. (As in the opening brief, except where otherwise indicated, all defendants-appellees are described jointly as the "Union.") The Union acknowledges as much, Union Br. at 26, but argues that the district court's error may be excused as "harmless." Id. at 26-27. But none of the cases it cites for that proposition support affirmance here. In the one Seventh Circuit decision, Ikard v. Lapworth, 435 F.2d 197 (1970), summary judgment was granted, one day early, in favor of an automobile dealer against one of two auto accident plaintiffs who had sued for injuries caused by an alleged defect in the vehicle the defendant had sold. After full briefing, the trial court granted summary judgment against one plaintiff; twenty days later, the dealer moved for summary judgment against the second plaintiff, with respect to whom "the controlling undisputed facts and the applicable law [we]re identical." 435 F.2d at 201. On appeal, the second plaintiff identified no "specific resulting prejudice" that the one-day error caused, and this Court declined to reverse based on "this wholly insignificant technical oversight." Id. Here, by contrast, the Union had omitted both defenses from its Answers, and neither issue had previously been litigated in the district court; as our opening brief showed, there are numerous and very serious arguments that could have been presented below had the district judge not been so hasty to dismiss. The cases cited from other circuits are even more remote from this one. In most of them, summary judgment was granted before the expiration of the ten day period, but after an oral hearing on the motion at which the losing party had been given the opportunity to present its evidence or to object that it was too soon to rule.(1) And in one case, the issue was the legal validity of a set of regulations, which both sides had briefed; there was no possibility that material facts could have been disputed had more time been allowed before summary judgment was granted. Township of Benton v. County of Berrien, 570 F.2d 114, 119 (6th Cir. 1978). The Union also takes refuge in the proposition that, in certain limited circumstances, summary judgment may be entered in favor of a non-moving party. Br. at 27, citing 6 Moore's Federal Practice ¶ 56.12, at 56-165. But the Union ignores the caution that immediately follows this proposition: Care should, of course, be taken by the district court to determine that the party against whom summary judgment is rendered has had a full and fair opportunity to meet the proposition that there is no genuine issue of material fact to be tried, and that the party for whom summary judgment is rendered is entitled thereto as a matter of law. Id. at 56-165 and n.8, citing, inter alia, Indiana Port Comm. v. Bethlehem Steel Corp., 702 F.2d 107 (7th Cir. 1983). The bulk of the Union's thirty-nine page brief is devoted to an apparent attempt to portray Judge Mills' admitted violation of English's right to respond as harmless error. Before discussing those arguments in the rest of this brief, we emphasize two points. First, this Court's task is not to review the parties' arguments and decide, in the first instance, whether summary judgment would have been granted had the appellate briefs been filed below. That is the job of the district court, after both sides have been allowed to submit their evidence and arguments. English has been constrained, in briefing this appeal, to confine his arguments to the record as it exists; he has not had the opportunity to submit affidavits, and an appellate court should not give parties an incentive to file counter-affidavits on appeal. The Court should simply satisfy itself that the summary judgment loser has shown that there are serious arguments that could have been made, and that an impartial trial judge might, in exercising his or her discretion in ruling on any discretionary matters, rule for the party that was denied an opportunity to respond. Second, in arguing harmless error the Union makes several factual assertions (for example, alleged statements by counsel), for which no record citation is provided and which, in fact, are false. We do not wish to involve this Court in factual disputes between counsel that cannot be settled absent a record, and so we simply urge the Court not to take the Union's brief at face value, and to compare each of its statements with the record. 2. Genuine Issues About the International's Indispensability. English's opening brief, at 14, pointed out that the Union's indispensability argument was based on a handful of district court decisions holding that, when a plaintiff sues a local union and challenges the validity of a provision of the international union constitution that the local was compelled to follow in harming the plaintiff, the international is an indispensable party. English disputed this proposition as a matter of law, pointing out, for example, that the NLRB often grants relief against locals in this circumstance without joining the international, id. at 15-16; the Union's brief ignores this legal flaw in its argument. The Union similarly makes no response to our observation that, to the extent that the International's absence is prejudicial to the Local, the Local could have taken steps to keep the International in the case; because the court below based its ruling solely on prejudice to the parties remaining in the case, and did not find prejudice to the International, that argument is also dispositive. We also, argued, however, that the Union's defense rests on the proposition that it had been acting under compulsion from the international, and argued that, had the district court been willing to wait for a response, English would have shown the presence of a genuine issue in this regard. Thus, we both pointed to inconsistencies in the evidence submitted with the Union's motion for summary judgment, and described the discovery that plaintiff would have pursued to explore these issues further. In making its "harmless error" argument, the Union concentrates its fire on the discovery, arguing that because all discovery had been stayed six years before, in an order that preceded the dismissal of all claims on statute of limitations grounds, appellant would not have been permitted to take any further discovery to meet the indispensability defense. Chief among the many flaws in this argument is that it confuses the question of whether a further order of the trial court was needed before any further discovery could be taken, with the question of whether the district court would have properly refused to permit any further discovery before ruling on the question of indispensability. In his opening brief, at 13-14, English pointed out that because the Union did not plead an indispensability defense in its Answer, it would not have been proper for the district court to have denied all discovery on the issue once the Union raised it, and that, in any event, this is the sort of question that should be left to the district court in the first instance on remand. The Union never responds to this argument directly; instead, it points out that English had originally taken the position (in seeking extra time to serve the International) that the International's presence was needed to secure complete relief, Br. at 5, and then makes repeated reference to the fact that plaintiff had more than two years from the day his complaint was filed to take discovery, urging that this was enough time. Br. at 6-7, 9, 25, 28-29. But the Union ignores that plaintiff was proceeding pro se from prison throughout this period, and that, as the Union itself admits, the Union had not sought dismissal on indispensability grounds (nor, indeed, endorsed English's assertions about the need for the International's presence), thus giving English no reason to seek discovery on the question of indispensability. And the Union admits, Br. at 9, 25, that before discovery (and all proceedings) was stayed by the 1986 order, none of the discovery that took place pertained to the International at all, or to indispensability in particular. Accordingly, the Union's argument gives no reason to doubt that the district court would be required to exercise its discretion to permit at least some discovery on the newly raised defense of indispensability. Nor, indeed, does the Union succeed in showing even that the evidence that it placed in the record negated the existence of any factual issue regarding whether its actions toward English were "compelled" by the International. Br. at 24-25. The letter attached to the Siddens affidavit is wholly precatory, not mandatory: a "recommended" letter for English (not "a letter that you are directed to send"), after which you "should" deal with English only through counsel (not "you must"). Short Appendix ("SA") 5. The Union also asserts that certain provisions in the International's Constitution compelled the Local's action. In addition to the fact that English has been able to take no discovery whatsoever since the Union first asserted that these provisions are relevant to the case, we note that the Union did not even submit these provisions in admissible form. The provisions are contained in pages that the Union attached to its motion papers as Exhibit L, without any affidavit asserting that these were, in fact, valid provisions of the International's Constitution. Had English been given the opportunity to submit opposing argument, he would not only have questioned the admissibility of Exhibit L, but he would have submitted evidence disputing it. His counsel also looks forward to cross-examining any witness who asserts that either the Local or the International expelled English pursuant to these provisions.(2) In the final analysis, English challenges not the validity of the International's constitution, but rather the way it was applied here, to expel him with neither notice nor trial. Nothing in the constitutional provisions cited by defendants purports to authorize the Union to act without following the due process requirements of section 101(a)(5), and so the constitutional provisions, even if they were authenticated, would not demonstrate the absence of any genuine issue about the indispensability of the International here. 3. The "True Name" Issue. In his opening brief, English noted five arguments he could have made to the Court below: (1) the absence of any cases dismissing claims for use of the "wrong" name, as opposed to suing in a pseudonym, Br. at 19; (2) even if Rule 10(a) affords a defense to an action, it is a waivable defense that was waived when omitted from the Answer, Br. at 19-20; (3) the "name" clause of Federal Rule 10(a) simply warrants an order that the party use a real name, not dismissal and closing the case, Br. at 17; (4) a formal change to "Guy Levine" would not bar English from suing over an expulsion letter, issued to "English," in the name "English," because process may be maintained in any name by which one is known, Br. at 17-19; and (5) the Union's failure to show the absence of a genuine issue on its claim of "prejudice." Br. at 20. The Union completely ignores the first two arguments, each of which is fatal to its defense of the judgment below. The union complains bitterly, Br. at 31-32, about the citation of Wright & Miller in support of the third argument, that the cure for a Rule 10(a) violation is inclusion of the correct name and not dismissal, but it still fails to cite any cases in which complaints were dismissed based on Rule 10(a) without leave to refile.(3) The Union responds to the fourth argument by attempting to show that it is clear that the name change took place before the complaint was filed. Br. at 30-31. But it ignores the fact that, well after the 1979 deposition on which the Union relies, the Union sent an expulsion letter to "Forrest English," SA 7, and the Union makes no attempt to explain why, if "English" was still known by that name when being expelled, that name was not sufficient identification for the initiation of the complaint over his expulsion. Finally, the Union responds to the fifth argument, about the existence of a genuine issue on "prejudice," by simply restating that the change hampered its attempt to enforce certain sanctions. Br. at 35. But its affidavits provided only one specific example of prejudice, and the example cannot stand as a basis for dismissal unless the specific order the Union was trying to enforce ran against English; if that order ran against somebody else, then confusion over names was irrelevant, not a source of prejudice. The Union acknowledges this argument, Br. at 33 n.8, but it fails to show or even assert that the order did, in fact, run against English. Instead, the Union shifts into a complaint about the fact that there was another plaintiff (Robert Owen) at one time, id.; from this omission, the Court may safely infer that the order was not against plaintiff, but was rather against Mr. Owen. Absent a showing that there was no genuine issue on this factual issue alone, in any event, the Union has failed to demonstrate that it was entitled to summary judgment on the "name" issue. The Union asserts that, in reversing on the last appeal, this Court remanded to allow it to present better arguments on its Rule 10 and Rule 19 defenses; the Union argues that it presented arguments, and that should be enough. Br. at 10. But it should be self-evident that the remand was not for a one-sided presentation. The Union takes English to task for not addressing these affirmative defenses in his own motion for summary judgment, Br. at 27, but English was entitled to wait for the Union to make its additional arguments before trying to answer them, and he was entitled to an opportunity to make that reply in the court below. And, because plaintiff has had no opportunity for discovery since either defense was raised, he was entitled to take appropriate discovery to demonstrate the flaws in both defenses, not to speak of the arguments on the merits that have been endorsed by the Union only after the district court raised them sua sponte in the order that was reversed on the last appeal. Indeed, the basic reason for the reversal and remand in the previous appeal was not to permit litigation of the two defenses that this Court mentioned in its footnotes, but rather to allow the parties to litigate, and resolve, the due process question and any remedy issues that might proceed from a determination that English was expelled without due process. The Union has managed to avoid those questions, and should be allowed to avoid them no longer. The judgment should be reversed, and the case should be remanded with specific instructions to permit an appropriate period of discovery followed by a disposition on the merits as well as on any other grounds the court below deems appropriate. For the reasons stated in our opening brief, at 21-23, and not addressed by the Union, the Court should invoke Circuit Rule 36 to instruct that the case be assigned to a different district judge. Respectfully submitted,
Paul Alan Levy Public Citizen Litigation Group Attorney for Appellant March 10, 1993 1. Green v. White, 693 F.2d 45, 47 (8th Cir. 1982); Hoopes v. Equifax, 611 F.2d 134, 135-136 (6th Cir. 1979); Thacker v. Whitehead, 548 F.2d 634, 636 (6th Cir. 1977); Oppenheimer v. Morton Hotel Corp., 324 F.2d 766, 768 (6th Cir. 1963). 2. Some of the Union's arguments about the constitutional provisions are directed more at the merits of whether due process was required than at the issue of indispensability. The court below did not rule on the merits, and the Union does not request affirmance on the merits as an alternate ground. Accordingly, we resist the temptation to expand this reply brief by discussing the merits. 3. Only in Roe v. New York, 49 F.R.D. 279 (S.D.N.Y. 1970), was the case dismissed, and the opinion makes clear that the dismissal was without prejudice. Id. at 282. The Union argues that the statute of limitations has run here, Br. at 35, apparently assuming that this would preclude refiling following a dismissal without prejudice. Although we believe that the statute would be tolled by the pendency of this action, the possible limitations defense would provide a strong reason to deny defendant leave to raise this defense several years after it first answered, because if the issue had been timely raised, English could simply have refiled. more resources
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