FOR THE NORTHERN DISTRICT OF TEXAS
T.C. STONE, Jr.,
v. No. 3-92-CV-0939-G
DIANA KILMURY, et al.,
CENTRAL FREIGHT LINES, INC.,
This is an action brought by T.C. Stone, the principal officer of the Teamsters Union in Texas, alleging that two defendants -- Diana Kilmury and the Teamster Rank and File Education and Legal Defense Foundation -- libeled him by statements they made in a private fund-raising letter that was sent to sixty-five people in Texas, none of them Teamster members or their employers. While arguing for personal jurisdiction in this Court, Stone made clear that his claim was based largely on the republication of the letter by a number of persons, particularly Central Freight Lines, which used the letter to oppose an organizing drive among its workers. After defendants' motion to dismiss on jurisdictional grounds was denied, they answered the complaint and brought a third party claim seeking contribution from Central for that portion of Stone's damages that were caused by Central's republication.
Central now moves to dismiss on two grounds. First, it argues that the Court lacks jurisdiction of the third party complaint because any claim that Stone might advance against it is necessarily preempted by the National Labor Relations Act. Second, it invokes two ancient Texas precedents to bar contribution -- an 1892 decision barring common law contribution for intentional torts, and a 1928 decision supposedly barring defendants' joint liability for Central's republication. However, as we demonstrate in this brief, neither argument is sound. Central's own papers allege facts that, if proven, would bring this case within one of the exceptions to the preemption of state libel claims, and the old Texas decisions on which it relies to bar contribution are no longer good law -- the 1892 decision because it was superseded by a statute, and the 1928 decision because the common law has developed in the opposite direction.
I. THE CONTRIBUTION CLAIM IS NOT PREEMPTED BY FEDERAL LAW.
To support its preemption defense, Central points out that it republished defendants' letter in the course of opposing an organizing campaign by several locals of the Teamsters union, among them Teamsters Local 745, of which Stone is the principal officer. Central points to the Supreme Court's decisions in Linn v. Plant Guard Workers, 383 U.S. 53 (1966), and Letter Carriers Branch 496 v. Austin, 418 U.S. 264 (1974), which held that unions can be sued for libel with respect to statements made during organizing campaigns or strikes only where the plaintiff proves malice meeting the test of New York Times v. Sullivan, 376 U.S. 254 (1964).
Assuming arguendo that Linn applies to statements by employers as well as by unions, but cf. NLRB v. Gissel Packing Co., 395 U.S. 575, 617-619 (1968) (statements by employer to employees who are economically dependent on it may receive less protection under labor laws), that decision applies only to libel actions involving the parties to a labor dispute. Central has cited no case that applies such a standard to bar an action for contribution by a libel defendant who seeks contribution from an employer who republished the alleged libel. And, indeed, the modern trend is to hold that, even when a tortfeasor enjoys a special defense or immunity against the victim of the tort, that defense does not prevent another alleged tortfeasor from seeking contribution insofar as the second tortfeasor's conduct has contributed to the damages owed by the first tortfeasor to the victim. Harper, James & Gray, The Law of Torts § 10.2, at 47-50 (2d ed. 1986). See also Speiser, Krause & Gans, The American Law of Torts § 3:22, at 459 ("small but growing" minority of jurisdictions allow such contribution). On this theory, the New York Times standard applies only by constitutional compulsion -- because Stone is a public figure -- and not for special reasons of labor law preemption.
In any event, both the complaint in this case, and Central's own papers, establish that there is a real possibility of showing malice on Central's part, thus meeting the New York Times standard. Because malice is a question of fact, the third party complaint cannot be dismissed based solely on the pleadings.
Thus, the complaint specifically alleges that the letter involved in this case was published with malice. Moreover, because Stone, as head of the Teamsters Union in Texas and candidate for office in the entire Southern Conference of Teamsters, is a public figure, at least for the purpose of comments about his performance in union office, he would have to meet the New York Times malice standard to prevail against defendants in this case. To be sure, defendants have denied both that the statements in the letter are false, and that they were published maliciously, just as they have asserted a variety of other privileges and defenses. But defendants need not endorse plaintiff's characterization of the basis for the letter in order to invoke their right to have contribution from a republisher who will be liable, or not, based on the same standards as defendants will be. Because Central's republication was no less malicious than defendants' original publication is alleged to have been (assuming either was malicious), that is enough to require both publishers to defend their conduct together, rather than allowing plaintiff to pick on impecunious intra-union opponents, who did far less publication in Texas than Central did, and requiring them to defend the case alone.
Moreover, Central's own papers strongly suggest that, if plaintiff succeeds in proving that the statements in the letter are false, there will be little difficulty in proving that Central republished the letter with reckless disregard of its truth. According to Central, the sole basis for its decision to republish the letter was that Central "considered Kilmury's letter to be a statement against interest by the Teamsters because it elaborated upon internal strife," and that Central "had no reason to believe that it was false because it was addressed from an officer of the union to union supporters." Mem. at 10 (emphasis added).
If this libel case had been filed by the Teamsters union against defendants, then the fact that the statement was made by an officer of that union might well bear on the question whether there was reason to believe that the statements in the letter about the union were true, and hence on whether Central acted with reckless disregard for the truth of the statements about the union, taken as a whole. But this libel suit has been filed by an individual, Mr. Stone, who claims that certain statements in the letter defame him individually. And Central admits having republished the letter without any apparent consideration of whether the statements about which Mr. Stone complains were true about Mr. Stone (as contrasted with their truth about the union as a whole). In effect, Central's papers seem to concede that the decision to publish was made without any consideration of whether the statements were true about Mr. Stone. This is about as close as a party can come to admitting reckless disregard of the truth.
Accordingly, defendants, as third party plaintiffs, can meet the same standard to prevail against Central as third party defendant, as plaintiff must prove in order to prevail against defendant, each under the Linn/New York Times standard. Accordingly, Central's motion to dismiss on preemption grounds must fail.(1)
II. THE THIRD PARTY COMPLAINT STATES A CLAIM FOR CONTRIBUTION ON WHICH RELIEF CAN BE GRANTED.
Central also argues that defendants do not state a valid claim for contribution because Texas law supposedly interposes two insuperable obstacles to the claim: an 1892 Supreme Court decision barring contribution for intentional torts, and a 1928 Court of Appeals decision barring liability of a publisher for republication by another, absent concert of action between the two publishers. As we now show, neither decision bars a contribution claim here.
A. The Texas Contribution Statute Allows Contribution for Intentional Torts, and the Common Law Rule to the Contrary Contains at Least Two Exceptions That Apply Here.
Central's first argument is that the "well-established majority rule is that contribution among knowing tort-feasors is not allowed," Mem. at 11, and that defamation is an intentional tort. Id. For the latter proposition, Central cites ample authority, and we agree that, under either a knowing falsehood standard or a reckless disregard standard, defamation is an intentional tort. It is the first proposition, however, on which Central errs, both under the Texas contribution statute and under the common law.
1. The Contribution Statute.
The Texas contribution statute gives any person against whom a judgment is rendered in a tort action "a cause of action to recover payment from each co-defendant against whom judgment is also rendered." Tex. Civ. Prac. & Rem. Code, § 32.002. Although the statute is worded in terms of recovery from persons who have already been joined as defendants and subjected to judgment, the Texas courts have uniformly held that a tort defendant may implead other persons with whom liability may be shared so that each can be assessed their proper share of the damages. Lottman v. Cuilla, 288 S.W. 123, 126 (Tex. Comm'n App. 1926); Pope v. Jackson, 211 S.W. 2d 958, 961 (Tex. Civ. App. -- Ft. Worth 1948), aff'd sub nom. Austin Road Co. v. Pope, 216 S.W.2d 563 (Tex. 1949) ("under the provisions of Article 2212 . . . the latter may implead the other wrongdoer and seek contribution); Producers Chem. Co. v. Well Completions, 380 S.W.2d 180, 181 (Tex. Civ. App. -- Amarillo 1964) ("under the provisions of Article 2212, . . . [i]f there were sufficient facts showing joint tortfeasors, the appellant was entitled to have the appellee retained in the original suit and would be deprived of a valuable right by the court granting a severance and then instructing the verdict for the appellee").(2)
The language of this contribution statute is quite broad, and has no exclusion for intentional torts. Indeed, section 32.001(a) makes clear that it applies generally to tort actions, and section 32.001(b) states that it provides a remedy in cases where neither the common law, nor any other statute, allows contribution. Given this evident purpose to add to the common law of contribution, and the absence of any exclusion for intentional torts, it is apparent that this case is within the purview of the statute, and that defendants' third party action should be permitted to proceed.
The only Texas precedent that Central cites to support its contrary position is Gulf, C. & S.F. Ry. Co. v. Galveston, H. & S.A. Ry. Co., 18 S.W. 956, 958 (Tex. 1892), which did state in dictum that there is no contribution among persons who commit "intentional torts or wrongs." But because that precedent arose under the common law, it carries no force in construing the Texas contribution statute, which was enacted some 25 years later. Tex. Civ. Prac. & Rem. Code, § 32.002, formerly Vernon's Ann. Civ. Stat. Art. 2212. Indeed, this is a perfect example of the limitations in the common law remedy that the statute was intended to overrule.
The only two cases decided on this issue since the contribution statute was enacted both held that the Texas contribution statute does not preclude contribution in that circumstance. Kerr v. Dorchester, 93 S.W.2d 758, 761 (Tex. Civ. App. -- San Antonio 1936); In re Boyles, 22 B.R. 851 (N.D. Tex. 1982).
In Kerr v. Dorchester, two depositors alleged that they had been defrauded by a bank's misrepresentations concerning the nature of the account into which their deposits had been made. They sued the bank's directors on the ground that the directors were aware of the bank's fraud. Although some directors were dismissed before trial, the depositors recovered a judgment against the remaining defendants. On appeal, the court held that certain testimony had been erroneously admitted, and remanded for retrial; in doing so, it stated that the cause of action asserted was a valid one, if certain facts were proved. The court went on to hold that, in the event the depositors should prevail at the new trial, "there appears no reason why the rule allowing joint tort-feasors to exact contribution of each other should not apply in this case . . .." 93 S.W.2d at 761.(3)
Similarly, in Boyles, a debtor and a third party were held jointly liable for a conspiracy; the third party paid her judgment into court and filed a claim in bankruptcy asserting a right of contribution against the debtor. After a careful evaluation of the Texas precedents, as well as the language of the Texas contribution statute and cases from other jurisdictions construing similarly-worded contributions laws, the court held that Texas law allows contribution among knowing tortfeasors. 22 B.R. at 853-855.
Boyles' reasoning is persuasive. First, the language of the Texas contribution statute does not distinguish between intentional and unintentional tortfeasors, and thus provides no basis for limiting contribution to unintentional tortfeasors. Had the Texas legislature desired to erect such a limit, it could easily have included language to that effect, as some states have done in their contribution statutes. E.g., Ky. Rev. Stat. § 412.030; Va. Code Ann. § 8.01-34. In most states with broad statutes similar to the Texas law, the courts have refused to read a limitation regarding intent into the statute. Thus, according to the cases cited in Boyles, 22 B.R. at 853-854, of eleven states with broad contribution statutes, where courts have reached the issue, seven states (other than Texas) were held to include intentional torts, while four states were held to have imposed such a limit, presumably based on the legislative histories or other interpretive guides found in those states. Given the other ways in which the Texas courts have read the contribution statute broadly to accomplish its remedial purpose, such as by allowing impleader even though the statute speaks of co-defendants who have been held liable for judgments, supra at 6-7, it hardly seems likely that the Texas courts would read an exception for intentional torts into the statute where the legislature chose not to include one.
Moreover, as the Boyles court reasoned, this result is sensible from a policy standpoint:
The common law rule [barring contribution for intentional torts] has been justified as deterring wrong-doers, but allowing one tortfeasor to go scott-free while penalizing a joint tortfeasor does little to deter the wrong-doer who pays nothing. Further, it seems questionable that the majority of those who conspire, commit fraud, and inflict other wrongs intentionally are deterred by a rule they probably never consider and indeed do not know until long after the intentional wrong is committed. When contribution among intentional tortfeasors is allowed, all wrong-doers are punished to some extent for their actions. Allowing contribution in no way prejudices the injured party who remains free to seek full satisfaction from any one of the tortfeasors. Contribution only affects the rights of the wrong-doers among themselves.
22 B.R. at 854.
Even the non-Texas case cited by Central, Mem. at 11, to support its contention that there is no contribution among intentional tortfeasors actually supports defendants' argument based on the Texas statute, rather than Central's position. In Huddleston v. Herman & MacLean, 640 F.2d 534, 557 (5th Cir. 1981), the issue was whether contribution would be allowed under a federal statute. Without particular reference to Texas law, the court generalized in dictum that, although the common law did not permit contribution among intentional tortfeasors, states with contribution statutes allowed contribution in varying degrees, id. at 557 n.43, and went on to rule that the federal statute in issue did allow contribution among knowing tortfeasors. Id. at 559. Similarly, the reasoning of Boyles and other courts -- that general contribution statutes that contain no exception for intentional tort-feasors do, in fact, apply to such torts -- should be followed here.
In sum, the Texas contribution statute applies to intentional torts, and thus permits defendants' third party action against Central.
2. The Common Law.
Even the common law rule against contribution for intentional torts was subject to a number of exceptions, two of which apply here. First, one intentional tortfeasor can obtain contribution from a second intentional tortfeasor who commits the tort in the course of violating a duty to the first tortfeasor. Austin Road Co. v. Pope, 216 S.W.2d 563, 565 (Tex. 1949). Here, the third party complaint alleges that defendants' letter was copyrightable, and so Central was under a duty not to appropriate defendants' expression by making thousands of copies without defendants' permission. Having made copies in that fashion, Central breached a duty to defendants, and defendants should be able to seek contribution from Central for any liability that they incur to plaintiff as a result of Central's unauthorized publication.
A second exception to the common law rule is that, where the second tortfeasor is more blameworthy than the first, the first tortfeasor may seek contribution from the second. Austin Road Co., supra; Oats v. Dublin Nat'l Bank, 90 S.W.2d 824, 829 (Tex. Comm'n App. 1936). Here, Central apparently admits that it disseminated the letter without any consideration of the veracity of the allegations vis-a-vis Mr. Stone. Defendants, by contrast, had a solid basis to believe that the letter was true as to Mr. Stone. Moreover, defendants included their allegation in a private fund-raising letter that was disseminated to persons having little personal interest in Mr. Stone or his activities, apart from a general interest in labor issues, while Central republished the letter in a direct effort to persuade its employees to refrain from associating with Mr. Stone as a collective bargaining representative. Assuming that there was any tort, defendants can scarcely be considered to have been equally guilty as Central, and they ought to be able to secure contribution from Central for any damages liability assessed against them for Central's wanton republication.
B. Central Has Not Demonstrated That Texas Law Bars a Judgment Holding Defendants' Liable for Its Republication of the Letter, Despite the Lack of Concert Between The Two Parties.
Central's second argument is one that, if accepted, actually helps defendants more than Central. Central argues that defendants cannot be held liable for Central's republication unless it is shown that Central acted in concert with defendants concerning that republication. Because the complaint and subsequent pleadings and evidence in this case make clear that Central's republication was without defendants' permission and contrary to their desires, Central argues that the requirement of "concert" cannot be met here. Mem. 13-16.
According to Central, for there to be contribution, the liability of the two defendants must be joint. Mem. at 12-13. But as the Restatement (Second) of Torts (1979), makes clear, liability is "joint" whenever "two or more persons . . . are liable to the same person for the same harm. It is not necessary that they act in concert or in pursuance of a common design . . .. [Joint liability] applies to all torts, including not only negligence but also misrepresentation, defamation, injurious falsehood, nuisance or any other basis of tort liability." Id. § 886A, Comment (b), at 338. See also Evans v. American Pub. Co., 8 S.W.2d 809, 812 (Tex. Civ. App. -- Dallas 1928), certified question answered, 13 S.W.2d 358 (Tex. Comm'n App. 1929) (only reason given for lack of joint liability is absence of liability by one tortfeasor for second tortfeasor's publication). Central nonetheless argues that defendants cannot be so liable, and cites the 1928 decision in Evans v. American Pub. Co., supra, as well as Am. Jur.2d, for the proposition that an original publisher can only be held liable for a second publication if there is concert of action with the republisher.
Defendants agree that Evans stands for that proposition, and they would be thrilled to have the Court rule that Evans remains good law in Texas. As the Court is aware from the evidence that it reviewed in conjunction with the motion on personal jurisdiction, defendants published the letter only to persons who had in the past either supported TRF or subscribed to a labor newsletter. Only a small number of letters were sent to Texas, and the great bulk of publication in Texas occurred when unknown persons, without TRF's encouragement, consent, or even knowledge, republished the letter. If the Court rules that Evans remains good law, the effect will be virtually to eliminate Stone's damages claims against defendants.
But plaintiff Stone disagrees that the Evans formulation of the limits of an original publisher's liability for a republication is applicable (although his papers do not acknowledge Evans' existence). Instead, he argues that an original publisher's liability extends to any republication that is "a natural and foreseeable consequence of the original publication." Plaintiff's Opposition to Defendant's Motion to Dismiss, at 2. To support this proposition, plaintiff has cited a decision of the United States District Court for the Southern District of Texas, McBride v. Owens, 454 F. Supp. 731, 735 (S.D. Tex. 1978); two state appellate court decisions, Chasewood Constr. Co. v. Rico, 696 S.W.2d 439 (Tex. Civ. App. -- San Antonio 1985), and First State Bank v. Ake, 606 S.W.2d 696 (Tex. Civ. App. -- Corpus Christi 1980); and two commentaries, one from Am. Jur.2d and one from A.L.R.2d. In support of his argument that defendants are liable for the republication here, plaintiff Stone submitted an affidavit, supplied by Central, which suggests that any employer facing an organizing drive that obtained a copy of the letter could be expected to republish it by sending it to all of its employees. See Motion to Compel Discovery, at 6, citing Exhibit B attached to that Motion.
Although no Texas state court decision squarely overrules Evans, it appears that the common law has moved away from the Evans position since that case was decided in 1928. See Smolla, Law of Defamation § 4.13, at 4-64 (1993). Thus, the same Am. Jur.2d that Central cites for the proposition of no liability for an independent publication by another, Libel & Slander § 347, at 866-867, also qualifies this rule to permit the original author to be held liable "if the repetition or republication by others is the natural and probable consequence of the original publication." Id. § 172, at 675 (emphasis added). See also 53 Corpus Juris Secundum Libel and Slander § 54, at 104-105 (original publisher liable for second publication that is "the natural consequence" or "the natural and probable consequence" of his act). The two Texas law cases cited by Stone actually take a similar position, intermediate between Stone's position and Central's position, albeit in the course of addressing a slightly different issue, whether a defendant that published defamatory statements to the person defamed was liable for the plaintiff's own republication. These courts allowed liability for the republication where circumstances were such as to virtually compel republication, because the person defamed was placed in a position where he would have to communicate the statement to others. While not providing quite so much protection to original publishers as the Evans test, Ake and Rico involved a far greater showing of compulsion or probability than did McBride, where mere "foreseeability" seems to have been enough.
Defendants would be delighted were the Court to rule that Evans remains good law, perhaps on the theory that it is the rule adopted by the state appellate court in Dallas and has never been overruled by that court or by the Texas Supreme Court. Next best would be a ruling that "compelled" republication, or knowledge of likely republication, were required for a finding of liability by the original publisher. But in order to resolve this motion, Central has now put the Court in a position where it probably has to state its view of the law on liability for republication, a result that would also assist the parties in preparing for trial and may be the impetus needed for a settlement to be reached.
However the Court rules, the same rule of liability for republication that governs the amenability of Central to impleader by defendants should also govern the determination of plaintiff's action against defendants. Similarly, whatever that standard may be, the same finder of fact should determine whether that standard has been met, both in assessing Central's liability for contribution and in determining defendants' liability to Stone in the first place. That is why defendants impleaded Central and why Central should remain in the case as a defendant until these legal and factual issues have been resolved, either on summary judgment or after trial.
Central's motion to dismiss defendants' third party complaint against it should be denied.
Paul Alan Levy
(D.C. Bar 946400)
Alan B. Morrison
Public Citizen Litigation Group
Steven B. Thorpe
(Texas Bar No. 19990500)
Crews, Thorpe & Hatcher
(Texas Bar No. 05420500)
(Mich. Bar No. P25478)
Attorneys for Defendants
September 16, 1993
T.C. STONE, Jr.,
v. No. 3-92-CV-0939-G
DIANA KILMURY, et al.,
CENTRAL FREIGHT LINES, INC.,
I. THE CONTRIBUTION CLAIM IS NOT PREEMPTED BY
FEDERAL LAW. . . . . . . . . . . . 2
II. THE THIRD PARTY COMPLAINT STATES A CLAIM FOR
CONTRIBUTION ON WHICH RELIEF CAN BE GRANTED. . . . 6
A. The Texas Contribution Statute Allows
Contribution for Intentional Torts, and
the Common Law Rule to the Contrary
Contains at Least Two Exceptions That
Apply Here. . . . . . . . . . 6
1. The Contribution Statute. . . . . . 6
2. The Common Law. . . . . . . . 12
B. Central Has Not Demonstrated That Texas
Law Bars a Judgment Holding Defendants'
Liable for Its Republication of the
Letter, Despite the Lack of Concert
Between The Two Parties. . . . . . . 13
Conclusion . . . . . . . . . . . . 17
Austin Road Co. v. Pope,
216 S.W.2d 563 (Tex. 1949) . . . . . . . 12
Chasewood Construction Co. v. Rico,
696 S.W.2d 439 (Tex. Civ. App. -- San Antonio 1985) . 15
Evans v. American Public Co.,
8 S.W.2d 809 (Tex. Civ. App. -- Dallas 1928),
certified question answered, 13 S.W.2d 358
(Tex. Comm'n App. 1929) . . . . . . . . 13, 14
First State Bank v. Ake,
606 S.W.2d 696 (Tex. Civ. App. -- Corpus Christi 1980) 15
Gulf, C. & S.F. Railway Co. v. Galveston, H. & S.A. Railway
18 S.W. 956 (Tex. 1892) . . . . . . . . 8
Huddleston v. Herman & MacLean,
640 F.2d 534 (5th Cir. 1981) . . . . . . . 11
In re Boyles,
22 B.R. 851 (N.D. Tex. 1982) . . . . . . . 8
Kerr v. Dorchester,
93 S.W.2d 758 (Tex. Civ. App. -- San Antonio 1936) . 8, 9
Letter Carriers Branch 496 v. Austin,
418 U.S. 264 (1974) . . . . . . . . . 2
Linn v. Plant Guard Workers,
383 U.S. 53 (1966) . . . . . . . . . 2
Lottman v. Cuilla,
288 S.W. 123 (Tex. Comm'n App. 1926) . . . . . 7
McBride v. Owens,
454 F. Supp. 731 (S.D. Tex. 1978) . . . . . . 15
NLRB v. Gissel Packing Co.,
395 U.S. 575 (1968) . . . . . . . . . 3
New York Times v. Sullivan,
376 U.S. 254 (1964) . . . . . . . . . 2
Oats v. Dublin National Bank,
90 S.W.2d 824 (Tex. Comm'n App. 1936) . . . . . 12
Pope v. Jackson,
211 S.W.2d 958 (Tex. Civ. App. -- Ft. Worth 1948),
aff'd sub nom. Austin Road Co. v. Pope, 216 S.W.2d
563 (Tex. 1949) . . . . . . . . . . 7
Producers Chemical Co. v. Well Completions,
380 S.W.2d 180 (Tex. Civ. App. -- Amarillo 1964) . . 7
Tomerlin v. Krause, 278 S.W. 501 (Tex. Civ. App. --
Austin 1925) . . . . . . . . . . 9
Ky. Rev. Stat. § 412.030 . . . . . . . . . 10
Tex. Civ. Prac. & Rem Code § 32.001(a) . . . . . 7
Tex. Civ. Prac. & Rem Code § 32.001(b) . . . . . 7
Tex. Civ. Prac. & Rem Code § 32.002 . . . . . . 2, 8
Va. Code Ann. § 8.01-34 . . . . . . . . . 10
Vernon's Ann. Civ. Stat. Art. 2212 . . . . . . 8
50 Am. Jur. 2d, Libel & Slander . . . . . . . 15
53 Corpus Juris Secundum, Libel and Slander . . . . 15
Harper, James & Gray, The Law of Torts (2d ed. 1986) . . 3
Restatement (Second) of Torts (1979) . . . . . . 13
Smolla, Law of Defamation (1993) . . . . . . . 15
Speiser, Krause & Gans, The American Law of Torts (1983) . 3
1. In its motion to dismiss, Central claims a lack of subject matter jurisdiction under Rule 12(b)(1), as well as failure to state a claim under Rule 12(b)(6). Because its papers contain no argument on this point, we assume that the motion simply states the same conclusions based on the same legal arguments, but under two parts of Rule 12(b). We note that Linn preemption does not deprive the federal courts of jurisdiction, but simply preempts a remedy where there is no proof of malice.
2. Central cites a number of cases for the proposition that a judgment is required. Mem. at 12-13. In all those cases, the tort suit was completed, and the question was whether the outcome could properly be deemed a judgment for the purpose of triggering a contribution action (for example, whether a settlement is a judgment). None contradict the proposition that contribution may be sought during the tort action, but before judgment.
3. The subsequent decision in Boyles characterized this statement as dictum. 22 B.R. at 853. While it is surely true that the court's ruling is conclusory, the statement on contribution was made in directing that a certain rule of law apply on remand, expressly upholding two of the directors' grounds for appeal and permitting a claim by the director-defendants to be made one against the other. The statement was therefore a holding, and not dictum.
Boyles cites dictum in Tomerlin v. Krause, 278 S.W. 501, 502 (Tex. Civ. App. -- Austin 1925) as pointing in the other direction, but that case does not discuss contribution among intentional tortfeasors at all, but rather is confined to a particular problem of agency law. The issue there was whether a bank could be liable for a cross-action for contribution or indemnity by agents who had acted unlawfully or intentionally, and the court indicated that the bank would be liable, if at all, not as a joint tortfeasor, but as a principal that was bound by the acts of its agents. The court then stated that a principal is not bound by unlawful or intentional wrongdoing of its agent. Because there is no contention that defendants were agents of Central, Tomerlin simply has no application here.