US Supreme Court Briefs

No. 99-1551

IN THE
Supreme Court of the United States


SEMTEK INTERNATIONAL iNCORPORATED,

Peitioner,
V.

LOCKHEED MARTIN CORPORATION,

Respondent.


On Writ of Certiorari to the
Court of Special Appeals of Maryland


BRIEF AMICUS CURIAE OF
PRODUCT LIABILITY ADVISORY COUNCIL, INC. IN SUPPORT OF RESPONDENT



Of Counsel
HUGH F. YOUNG, JR.
PRODUCT LIABILITY
ADVISORY
COUNCIL, INC.
1850 Centennial Park
Dr.
Reston, VA 20191
(703) 264-5300
GRIFFIN B. BELL
(Counsel of Record)
CIJILTON DAVIS VARNER
KING & SPALDING
191 Peachtree Street
Atlanta, GA 30303
(404) 572-4600
PAUL D. CLEMENT
JEFFREY S.
BUCHOLTZ
KING & SPALDING
1730 Pennsylvania
Ave., N.W.
Washington, DC 20006
(202) 737-0500




Oclober I 0,
200()
Counsel for
Amicus Curiae



W&SON-EPES PIUNONG Co., iNC. (202) 789-0096 WAStUNGION, D.C. 20001


TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ii

INTEREST OF AMJCUS CURIAE

SUMMARY OF ARGUMENT
ARGUMENT 3

I. RULE 41(b) BARS PETITIONER'S EFFORT TO RELITIGATE A DISMISSED FEDERAL
LAWSUIT 3
A. The Perceived Difference Between Rule 4 1(b) and California Preclusion Law Is the
Animating Force Behind This Dispute 3
B. A Statute of Limitations Dismissal Is Not a
"Dismissal for Lack of Jurisdiction" 4

IL. FEDERAL FULL FAITH AND CREDIT
PRINCIPLES DIRECT STATE COURTS TO
APPLY THE PRECLUSION LAW OF THE
RENDERING COURT, NAMELY RULE
41(b) 9

A. Federal Law Dictates Which Body of Preclusion Law a Recognizing State Court
Should Apply 9

B. Dupasseur and Other Cases Decided
Before the Adoption of the Federal Rules
Do Not Dictate the Application of
Califomia Preclusion Law 12

C. The Law of Full Faith and Credit, Common Sense, and Sound Policy All Support Applying the Preclusion Law of the Rendering Court,
Namely Rule 4 1(b) .... 17
CONCLUSION 24

(i)


C-ases:
ii
TABLE OF AUTHORITIES

Page:

Antoncic v. Baltimore & Ohio R. Co., 47 F.2d 97
(3d Cir. 1931) 15
Armstrong v. Carson's Executors, I Fed. Cas.
1140 (C.C.D. Pa. 1794) 19
Bigelow v. Old Dominion Copper Mining &
Smelting Co.,225 U.S. 111 (1912) 14
Bohenik v. Delaware & Hudson Co., 49 F.2d 722
(2dCir. 1931) 16
Bohus v. Beloff, 950 F.2d 919 (3d Cir. 1991) 7
Bowen v. City of New York, 476 U.S. 467 (1986) 5
Costello v. United States, 365 U.S. 265 (1961) 5,6,7
Crescent City Live-Stock Landing & Slaughter-
House Co. v. Butchers' Union Slaughter House
& Live-Stock Landing Co., 120 U.S. 141
(1887) 12, 14
DeBerry v. First Gov't Mortgage and mv. Corp.,
170F.3d 1105 (D.C. Cir. 1999) 6
Deposit Bank of Frankfort v. Board of Councilmen of the
City of Frankfort, 191 U.S.
499 (1903) 11,16
Dupasseur v. Rochereau, 88 U.S. 130 (1874) passim
Elliot v. City of Union City, 25 F.3d 800 (9th Cir.
1994) 5
Embry v. Palmer, 107 U.S. 3 (1883) 13
Federated Department Stores, Inc. v. Moitie, 452
U.S.394(1981) 4,7
Follette v. Wal-Mart Stores, Inc., 41 F.3d 1234
(8thCir. 1994) 9
Gelb v. Royal Globe Ins. Co., 798 F.2d 38 (2d
Cir. 1986) 19
Green v. Van Buskirk, 72 U.S. 307 (1866) 19


iii

TABLE OF AUTHORITIESContinued
Page

Hancock Nat'l Bank v. Farnum, 176 U.S. 640
(1900) 12, 13
Hanna v. Plumer, 380 U.S. 460 (1965) 8
Heckv. Humphrey, 512 U.S. 477 (1994) 11
Kern v. 1-lettinger, 303 F.2d 333 (2d Cir. 1962) 9
Koch v. Rodlin Enters., Inc., 223 Cal. App. 3d
1591 (1990) 3
Kovacs v. Brewer, 356 U.S. 604 (1958) 18
Leavell v. Kieffer, 189 F.3d 492 (7th Cir. 1999) 5
McCormick v. Sullivant, 23 U.S. (10 Wheat.) 192
(1825) 13,23
Metcalf v. City of Watertown, 153 U.S. 671
(1894) 11, 13,
15
Mills v. Duryee, Il U.S. (7 Cranch) 481
(1813) 19
Milwaukee County v. M.E. White Co., 296 U.S.
268 (1935) 10
Nevada Power Co. v. Monsanto Co., 955 F.2d
1304 (9th Cir. 1992) 6
Plaut v. Spendthr~ft Farm, Inc., 514 U.S. 211
(1995) 5,7
Riley v. New York Trust Co., 315 U.S. 343
(1942) 18
Santiago Hodge v. Parke Davis & Co., 909 F.2d
628 (1st Cir. 1990) 7
Shoup v. Bell & Howell Co., 872 F.2d 1178 (4th
Cir. 1989) 4
Sihbachv.Wilson&Co.,312U.S. 1(1941) 8
65 Butterfield v. Chicago Title Ins. Co., 70 Cal.
App. 4th 1047 (1999) 6
Southern Cross Overseas Agencies, Inc. v. Wah
Kwong Shipping Group Ltd., 181 F.3d 410
(3d Cir. 1999) 6
Stoll v. Gottlieb, 305 U.S. 165 (1938) 11, 13





iv
TABLE OF AUTHORITIESContinued
Page
Strawhridge v. Curtiss, 7 U.S. (3 Cranch) 267
(1806) 22
Tullock v. Mulvane, 184 U.S. 497 (1902) 14
United States v. Oppenheimer, 242 U.S. 85
(1916) 5
United States v. Zucca, 351 U.S. 91(1956) 6
West Side Belt R.R. Co. v. Pittsburgh Construc-
tionCo.,219U.S.92(1911) 11,23

Constitutional Provisions, Statutes, and Rules:
U.S. Const. Art. IV, I passim
28 U.S.C. 1257

1
2
28 U.S.C. 1332(a)

2
2
28 U.S.C. 1738 passim
42 U.S.C. 1983

2
1
Fed. R. Civ. P.41(b) passim

Other Authorities:

P. Bator, D. Meltzer, P. Mishkin & D. Shapiro, Hart
and Wechsler's The Federal Courts and the Federal
System (3d ed. 1988)
Restatement (Second) Judgments 87
J. Story, Commentaries on the Constitution (M.
th
Bigelow, ed., 5 ed. 1891)
INTEREST OF AMICUS CURIAE
The Product Liability Advisory Council, lnc. ("PLAC"), is
a non-profit corporation with 127 corporate members
representing a broad cross-section of American industry. Its
corporate members include manufacturers and sellers in a
wide range of industries, from automobiles to electronics to
pharmaceutical products. A list of PLAC's current corporate
membership is attached as Appendix A. In addition, several
hundred of the leading product liability defense attorneys in
the country are sustaining (non-voting) members of PLAC.

PLAC's primary purpose is to file amicus curiae briefs in
cases with issues that affect the development of product
liability law and have potential impact on PLAC's members.
PLAC has submitted numerous amicus curiae briefs in both
state and federal courts, including this Court. PLAC members
engage in substantial litigation in both state and federal
courts. PLAC members, therefore, have a strong interest in
uniform, predictable, and workable rules of preclusion and full
faith and credit. Petitioner's proposed rule would undermine
the predictability and rationality of preclusion principles.
Accordingly, PLAC submits this brief in support of
Respondent.'

SUMMARY OF ARGUMENT

This case turns on whether a state court should judge the
preclusive effect of a prior federal-court diversity judgment
based on the law of the rendering forum (Fed. R. Civ. P. 4
1(b)) or the law of the State where the federal court sits (in
this case, California). Rule 41(b) clearly bars Petitioner's
10
16

18




Both Petitioner and Respondent have consented to the filing of this
brief. No counsel representing a party in this case authored this brief in
whole or in part, and no person or entity, other than am icus curiae and
its counsel, made a monetary contribution to the preparation and
submission of this brief.


2

attempt to relitigate its dismissed lawsuit in state court.
Although Petitioner contends that a dismissal on statute of
limitations grounds falls within Rule 41(b)'s exception for
dismissals for lack of jurisdiction, this Court's cases are to the
contrary. Under Rule 4 1(b), a dismissal of a claim as time-
barred, no less than a dismissal for failure to state a claim,
constitutes a preclusive adjudication "upon the merits."

Petitioner attempts to escape the reach of Rule 41(b) by
suggesting that this Court's precedents direct a recognizing
state court to apply the preclusion law of the State where the
federal court sits, rather than Rule 41(b). However, federal
full faith and credit law requires a recognizing court to apply
the preclusion law of the rendering court. This Court's
precedents do not support a contrary rule. Before the
adoption of the Federal Rules, a federal court sitting in
diversity applied the preclusion law of the State where it sat
to determine the preclusive effect of its own judgments.
Accordingly, this Court's direction to state courts to judge the
preclusive effect of federal-court diversity judgments by
applying state law was a direction to apply the law of the
rendering court. Certainly, none of these cases suggests that
the recognizing court should apply a body of law that
conflicts with the preclusion rules of the rendering court. Yet
that is the rule that Petitioner asks this Court to adopt.

This Court should reject Petitioner's proposed rule and
adopt the federal full faith and credit rule that applies in
every other contextnamely, that a recognizing court must
apply the preclusion law of the rendering forum. This simple
rule protects successful plaintiffs and defendants alike and
promotes judicial economy, predictability, and finality. It
does not require overruling precedents or making the Federal
Rules directly applicable in state court. This rule puts federal-
court diversity judgments on the same footing as the
judgments of every other court in the United States by giving
3

them the same preclusive effect in every court that they
have in the rendering court.

ARGUMENT

I. RULE 41(b) BARS PETITIONER'S EFFORT
TO RELITIGATE A DISMISSED FEDERAL
LAWSUIT

A. The Perceived Difference Between Rule 41(b) and
California Preclusion Law Is the Animating Force
Behind This Dispute.

Petitioner contends that California law deems a dismissal
on statute of limitations grounds "a technical or procedural,
rather than a substantive, termination" that does not bar a
subsequent suit invoking a cause of action subject to a longer
limitations period. See, e.g., Koch v. Rodlin Enters., Inc.,
223 Cal. App. 3d 1591, 1597 (1990) (holding that the
dismissal of the first action as time-barred under the statute
of limitations for contract rescission did not preclude a
second action "based on common law fraud which allegedly
was discovered within the applicable limitations period").
According to Petitioner, had a California state court
dismissed Petitioner's suit as time-barred and had Petitioner
then filed a second suit in the same state court raising a claim
with a longer limitations period, the first judgment would not
bar the second suit under California law. By routine
application of the Full Faith and Credit Act, 28 U.S.C.
1738, the same result would obtain if the second suit were
filed in federal court, because the federal court would apply
the preclusion law of the rendering court.

In this case, of course, Petitioner's first suit was dismissed
as time-barred by a federal court. If Petitioner had refiled in
that same federal court (i.e., the rendering court), the federal
court would have applied Fed. R. Civ. P. 41(b) to determine
the "[ejffect" of its prior "[iinvoluntary [d]ismissal."





4 5
Rule 41(b) provides that "Ijuinless the court in its order for
dismissal otherwise specifies, .. . any dismissal . . . other than a
dismissal for lack of jurisdiction, for improper venue, or for
failure to join a party under Rule 19, operates as an
adjudication upon the merits." None of these three exceptions
applies, and the California district court, in dismissing
Petitioner's first suit as time-barred, did not "specif~y]" that
its order would not have preclusive effect. Id. To the
contrary, the court went out of its way to specify that the
case was dismissed "in its entirety on the merits and with
prejudice." Pet. App. at 59a. Accordingly, had Petitioner
refiled in federal court, the court would have held that its first
dismissal constituted an "adjudication upon the merits," and
dismissed the second suit. Fed. R. Civ. P. 41(b); see, e.g.,
Federated Department Stores, Inc. v. Moitie, 452 U.S. 394,
398 (1981). It was Petitioner's election to bring its second suit
in a new forum and the question whether the recognizing court
should look to the law of the rendering forum (Rule 4 1(b)) or
California law that led to this Court's review on certiorari.

B. A Statute of Limitations Dismissal Is Not a
"Dismissal for Lack of Jurisdiction."

Petitioner objects that even if Rule 4 1(b) applies, it would
tbot have barred a second action in the rendering court
because, inter alia, the dismissal of Petitioner's first action
should be treated as a "dismissal for lack of jurisdiction." As
such, the dismissal would fall within one of Rule 41(b)'s
exceptions and would not constitute a dismissal "upon the
merits."

The plain language of Rule 41(b) provides the most
formidable obstacle to Petitioner's argument. See, e.g., Shoup
v. Bell & I-lowell Co., 872 F.2d 1178, 1180 (4th Cir. 1989)
("The plain language of [Rule 4 1(b)] indicates that the
dismissal of plaintiffs' Pennsylvania action on statute of
limitations grounds is an adjudication on the merits."). Had the
rule intended to except dismissals of time-barred cases, it
would have said so explicitly. It does not, and dismissals on
this ground have never been construed as jurisdictional. See,
e.g., Bowen v. City of New York, 476 U.S. 467, 478 (1986)
(holding that the statutory requirement that suit must be filed
within 60 days of Secretary's denial of disability benefits "is
not jurisdictional, but rather constitutes a period of
limitations"); Leavell v. Kieffer, 189 F.3d 492, 494 (7th Cir.
1999) ("Neither does a statute of limitations affect the district
court's jurisdiction."); Elliot s'. City of Union City, 25 F.3d
800, 801 n. 1 (9th Cir. 1994) ("The statute of limitations is
not jurisdictional, however, but an affirmative defense.").

Indeed, this Court has labeled a dismissal on statute of
limitations grounds as a judgment on the merits. In Plaut v.
Spendthrift Farm, Inc.. 514 U.S. 211(1995), this Court noted
that "[tihe rules of finality, both statutory and judge made,
treat a dismissal on statute-of-limitations grounds the same
way they treat a dismissal for failure to state a claim, for
failure to prove substantive liability, or for failure to
prosecute: as a judgment on the merits." Id. at 228 (emphasis
added). Plaut cited Rule 4 1(b) and this Court's unanimous
opinion in United States v. Oppenheimer, 242 U.S. 85 (1916),
as support. Oppenheimer held that "a judgment for the
defendant upon the ground that the prosecution is barred goes
to his liability as a matter of substantive law, and one
judgment that he is free as a matter of substantive law is as
good as another." Id. at 87.

Undeterred by these precedents, Petitioner contends that
Costello v. United States, 365 U.S. 265 (1961), supports
treating a dismissal on statute of limitations grounds as
jurisdictional. However, whatever elasticity Costello
introduced into the term "jurisdiction," that term cannot be
stretched to include a dismissal on statute of limitations
grounds. In Costello, the first action was dismissed because





6
the government's complaint did not include an affidavit of
good cause, which was a statutory "prerequisite to the
initiation of denaturalization proceedings." 365 U.S. at 268.
The lack of the required affidavit was apparent on the face of
the complaint and barred the court's consideration of the
merits of the case. See id. at 285 (observing that the filing of
the affidavit was a "precondition requisite to the Court's
going forward to determine the merits of [the] substantive
claim"); United States v. Zucca, 351 U.S. 91, 100 (1956)
(holding that "the District Attorney must, as a prerequisite to
the initiation of such proceedings, file an affidavit showing
good cause").

In contrast to the lack of an affidavit of good cause (which
prevents the suit, ab initio, from going forward), the
applicability of a statute of limitations is neither facially
obvious nor inherently preliminary. Indeed, just the opposite
is true. "When the applicability of the statute of limitations
is in dispute, there are usually factual questions as to when a
plaintiff discovered or should have discovered the elements
of its cause of action." Southern Cross Overseas Agencies,
Inc.
v. Wah Kwong Shipping Group Ltd., 181 F.3d 410, 425 (3d
Cir. 1999). "[R]esolution of the statute of limitations issue is
normally a question of fact." 65 Butterfield v. Chicago Title
Ins. Co., 70 Cal. App. 4th 1047, 1054 (1999) (citation
omitted). Courts often cannot resolve statute of limitations
defenses until deep into the litigation (especially, for
example, when fraudulent concealment or latent injury issues
are raised). See, e.g., DeBerry v. First Gov't Mortgage and
Inv. Corp., 170 F.3d 1105, 1110-11 (D.C. Cir. 1999) ("we
find that the district court erred in dismissing the claims
before appropriate discovery could be conducted"); Nevada
Power Co. v. Monsanto Co., 955 F.2d 1304, 1307-10 (9th
Cir. 1992) (reversing summary judgment based on statute of
limitations).
7

As the issue of accrual "may be decided as a matter of law
only when uncontroverted evidence irrefutably demonstrates
plaintiff discovered or should have discovered the fraudulent
conduct," id. at 1307 (quotation omitted), the statute of
limitations cannot be analogized to "a precondition requisite
to the Court's going forward to determine the merits of [the]
substantive claim." Costello, 365 U.S. at 285. Nor does the
statute of limitations spare the defendant "the inconvenience
of preparing to meet the merits." Id. at 286. Indeed, in many
cases a statute of limitations defense cannot be resolved
before or apart from the substantive merits of the case. See,
e.g., Bohus v. Beloff, 950 F.2d 919, 924-30 (3d Cir. 1991)
(reversing judgment n.o.v. and reinstating jury's verdict that
found no limitations bar); Santiago Hodge v. Parke Davis &
Co., 909 F.2d 628, 633 (1st Cir. 1990) (holding that the
limitations issue was "for the jury" and affirming jury's
verdict).

Petitioner's suggestion that this Court extend Costello to
adopt a per se rule that dismissals on statute of limitations
grounds always are jurisdictional makes no sense, in light of
the fact that such dismissals often occur deep into the
litigation. To be sure, in some cases (like Petitioner's first
suit) the statute of limitations defect will be clear from the
outset, and the court will dismiss the complaint early in the
litigation. But the same is true of any legal defect, including
defects such as the failure to state a claim, which indisputably
result in a judgment on the merits. Moitie, 452 U.S. at 399;
Plaut, 514 U.S. at 228. In any event, Rule 41(b) gives judges
discretion to avoid rendering a dismissal on the merits with
preclusive effect where appropriate. In contrast, under
Petitioner's strained reading of Rule 41(b), a dismissal on
statute of limitations grounds would never have preclusive
effect, even if entered after the defendant had incurred the
expense and inconvenience of presenting a full defense.





8

Accordingly, if Rule 41(b) applies in this case, it clearly bars
Petitioner's effort to relitigate its previously dismissed federal
claims in state court. When Petitioner opted to file its
successor suit in a Maryland state court, that court had to
decide what law determined the preclusive effect, if any, of the
dismissal of Petitioner's first suit. If Rule 4 1(b) applies, then
the Maryland court correctly dismissed Petitioner's suit.2

The Maryland courts held that Rule 41(b) requires giving res
judicata effect to the federal-court dismissal. There is,
however, more than one route to that conclusion. Respondent
argues that Rule 41(b) has "the force of a federal statute,"
Sibbach v. Wilson & Co., 312 U.S. 1, 13 (1941), and "cover[s]
the point in dispute," Hanna v. Plumer, 380 U.S. 460, 470
(1965). Consequently, Respondent submits that Rule 41(b)
itself directs the Maryland courts to afford res judicata effect
to the federal-court dismissal.

Petitioner's argument that this Court should begin its
analysis with full faith and credit principles leads to the same
conclusion. As demonstrated infra, applicable federal full faith
and credit principles direct the Maryland courts to apply the
law of the rendering court. The rendering federal court would
judge the preclusive effect of its own prior judgment by
applying Rule 4 1(b) and would give res judicata effect to the
dismissal of a time-barred claim as "an adjudication upon


2 The outcome is less clear if California law applies. Petitioner contends
that California law permits a plaintiff to refile dismissed claims tn a
jurisdiction that applies a longer statute of limitations to those claims.
Respondent suggests that the result under the law of California is unclear. If
(contrary to our submission) Petitioner is correct that California law
applies, sorting out the exact content of California law presumably is a task
for the Maryland state courts on remand. However, the fact that the parties
disagree as to the content of California's preclusion law underscores the
uncertainty and unpredictability fostered by Petitioner's proposed rule.
9
the merits." Fed. R. Civ. P. 4 1(b). A Maryland court, applying
the law of the rendering court, should do likewise.

II. FEDERAL FULL FAITH AND CREDIT
PRINCIPLES DIRECT STATE COURTS TO
APPLY THE PRECLUSION LAW OF THE
RENDERING COURT, NAMELY RULE 41(B)
A. Federal Law Dictates Which Body of Preclusion
Law a Recognizing State Court Should Apply.

Neither the Full Faith and Credit Clause of the Constitution,
the Full Faith and Credit Act, 28 U.S.C. 1738, nor Rule
41(b) directly addresses the question here: what law should a
state court apply to determine the preclusive effect of an
earlier federal-court judgment. The Full Faith and Credit
Clause, by its terms, addresses a state court's consideration of
the preclusive effect of the "judicial proceedings" of another
State. Art. IV, I. The Full Faith and Credit Act, enacted
pursuant to Congress' power under the Full Faith and Credit
Clause, addresses both a state court's consideration of the
preclusive effect of a prior decision of another State and a
federal court's consideration of a prior state-court decision. In
addition, Rule 41(b) appears to address the preclusive effect of
a prior federal-court judgment in a second federal court.3

Federal law, therefore, squarely addresses three of the four
full faith and credit scenarios possible in the federal system of
concurrent jurisdiction. The Constitution deals with the state
court-then-state court scenario; the statute covers the state



There is, however, some confusion on this point in the lower courts.
Compare Kern v. Hettinger, 303 F.2d 333, 339-40 & n.7 (2d Cir. 1962)
(applying Rute 4t(b)) with Fotterte v. Wat-Mart Stores, Inc., 41 F.3d
1234, 1237 (8th Cir. 1994) (applying state law).





10 Ii
court-then-federal court scenario; Rule 4 1(b) directly
addresses the federal court-then-federal court situation. 1-
lowever, neither the Constitution, statute, nor rule expressly
covers the scenario presented here: a state court's
consideration of the preclusive effect of a prior federal-court
judgment.

Despite this gap, federal law must provide a uniform
answer. There is a clear federal interest in having the courts
of every State give a uniform answer to the initial question of
what body of preclusion law govems the effect of a prior
federal-court decision. Were this initial question a matter of
state law, then state courts would be free to apply their own
preclusion principles to ignore the preclusive effect of the
previous judgment. For example, Maryland could take the
position that any federal judgment adverse to a citizen of
Maryland lacks preclusive effect in the Maryland courts. The
same federal interests that animate the Full Faith and Credit
Clause and statute surely prevent this result. A constitutional
structure that features federal and state courts with concurrent
jurisdiction demands a uniform rule. See, e.g., Milwaukee
County v. M.E. White Co., 296 U.S. 268, 277 (1935).
Respectfully, States should not be allowed free rein to
determine the effect, if any, of a prior federal judgment. See
P. Bator, D. Meltzer, P. Mishkin & D. Shapiro, Hart and
Wechsler's The Federal Courts and the Federal System 1603
(3d ed. 1988) ("There is no explicit constitutional or
legislative text providing that the preclusive effect of federal
judgments in state courts should be measured by federal law.
But such a rule is indispensible to federalism.. . .") (quotation
omitted).4



~ The need for a uniform federal answer is particularly acute
because the same gap in full faith and credit principles that exists for
federal-court diversity judgments also exists for federal-court judgments
on federal questions. Although neither the Constitution nor the Full Faith
and Credit
Diversity jurisdiction could not long co-exist with a regime
in which States were free to choose whether to apply their
own state-law preclusion principles, the preclusion principles
of the rendering court, or those of the State where the federal
court is located. Such a regime would yield a patchwork of
conflicting rules. Strong federal interests demand that federal
law supply a uniform answer to the question of what law
applies to determine the preclusive effect of a prior federal-
court judgment.5

By asserting authority to review state-court decisions that
allegedly failed to give full effect to federal-court judgments,
this Court declined to leave state courts to their own devices
in determining the preclusive effect of such judgments. In
Dupasseur v. Rochereau, 88 U.S. 130 (1874), for example,
this Court rejected the suggestion that it lacked jurisdiction to
review the Louisiana Supreme Court's decision concerning the
preclusive effect of the prior federal-court judgment. See id.
at 134-35 ("We cannot hesitate, therefore, as to our
jurisdiction to hear the case."). Likewise, in West Side Belt
R.R. Co. v. Pittsburgh Construction Co., 219 U.S. 92, 102
(1911), this Court classified "the question whether due faith
and credit were given iby the state court] to the judgment of
the [federal] circuit court," as "a Federal question." Accord
Deposit Bank of Frankfort v. Board of Councilmen of the City


Act expressly addresses what effect a state court should give a prior
federal-court judgment on a federal question, this Court has indicated that
federal law provides the answer. See, e.g., fleck v. Humphrey. 512 U.s. 477,
488 n.9 (1994). The same result should apply in diversity cases.

Although the federal law that supplies this answer might be described
most accurately as federal common law, it also could be considered a gloss
on the Full Faith and Credit Act, see, e.g., Stoll v. Gottlieb, 305 U.S. 165,
t67 (1938), or as arising from "[pirovisions declaring the supremacy of the
Constitution and the extent of the judicial power and authorizing
necessary and proper legislation to make the grants effective," id.; accord
MewaIf~'. City of Warerwwn, t53 U.S. 67t, 676 (1894).





12 13

of Fran/fort. 191 U.S. 499, 515 (1903) (holding that
"whether a Federal judgment has been given due force and
effect in the state court is a Federal question").

In Dupasseur and a host of subsequent cases, this Court
based its jurisdiction on a party's claim that, by denying the
asserted effect of a prior federal-court judgment, the state
court denied a "right, privilege, or immunity [that] is
specially set up or claimed under the Constitution or the
treaties or statutes of . . . the United States." 28 U.S.C. 1257.
Accord Hancock Nat'l Bank v. Farnum, 176 U.S. 640, 641
(1900) (noting that for the Court to have jurisdiction there
must be "some alleged denial of a right or immunity secured
by [the] Constitution"); Crescent City Live-Stock Landing &
Slaughter-House Co. v. Butchers' Union Slaughter House &
Live-Stock Landing Co., 120 U.S. 141, 146 (1887).

These cases mark a clear path. Federal law should control
the Maryland court's choice of preclusion law. The only
remaining question is whether federal law dictates the
application of the preclusion principles of the rendering
court, or some other body of law.

B. Dupasseur and Other Cases Decided Before
the Adoption of the Federal Rules Do Not
Dictate the Application of California
Preclusion Law.

Petitioner suggests that Dupasseur definitively answered
the question before the Court and requires the application of
California preclusion law. However, Dupasseur did not pose,
let alone answer, the question presented here. Dupasseur and
its progeny simply did not confront situations, like this,
where the federal court applies a different rule of preclusive
effect than that of the State where the federal court sits.

Instead, the disputes in those earlier cases fell into two
categories. First, many cases involved efforts by state courts
to give federal-court diversity judgments less effect than
equivalent state-court judgments. This Court repeatedly
rejected such efforts to "discriminat[e] between judgments
rendered in the courts of a state and those rendered in the
federal courts held in the same state" by giving the federal
judgments less weight. Metcalf, 153 U.S. at 677 (reversing
Wisconsin Supreme Court's decision subjecting actions to
enforce federal-court judgments to a more stringent statute of
limitations than actions to enforce Wisconsin judgments); see
also Stoll, 305 U.S. at 177 (reversing Illinois Supreme Court's
refusal to give res judicata effect to federal-court judgment in
a bankruptcy proceeding); Hancock National Bank, supra
(reversing Rhode Island Supreme Court for failing to give
judgment of federal court in Kansas the same preclusive
effect as Kansas court's judgment); Embry v. Palmer, 107
U.S. 3, 19 (1883) (reversing Connecticut Supreme Court for
failing to give res judicata effect to a judgment of a District
of Columbia court); cf. Deposit Bank of Fran/fort, supra
(reversing Kentucky court's refusal to give preclusive effect
to a prior federal-court judgment on a federal question).
These cases reflect the long-established principle that federal
courts "are all of limited jurisdiction; but they are not, on
that account, inferior Courts, in the technical sense of those
words, whose judgments, taken alone, are to be disregarded."
McCormick v. Sullivant, 23 U.S. (10 Wheat.) 192,
199(1825).6



6 McCormick v. Sullivant appears to undermine Petitioner's theory of
this case. In this early case, the Court reviewed a state-court determination
of the preclusive effect of a prior federal-court diversity judgment. The
ptaintiff-in-error argued that the prior federal judgment lacked preclusive
effect because the pleadings in that case failed to show diversity of
citizenship. The Court considered this contention (presumably a question
of federal law because state courts do not impose diversity requirements)
and rejected it on the merits. However, under Petitioner's theory, the Court
should have dismissed this attack as irrelevant on the ground that the
federal-court judgment had the same




14
The second category of these early cases involved disputes
over the content of the law of the State where the federal
court sat. ln these cases, the parties took it for granted that
state law provided the relevant preclusion law. Their dispute
was over the content and effect of that state lawi.e., whether
state law afforded preclusive effect to a particular prior
judgment. In Dupasseur, for example, the principal question
before the Court was whether the prior federal-court action
was in rem or in personam. The plaintiff in the subsequent
state-court proceeding was not a party to the federal-court
action. Accordingly, under Louisiana law, the federal-court
action provided a defense in the second action only if the first
action was in rem. The parties disputed whether Louisiana law
treated the first action as in rem, but no one suggested that a
different preclusion rule would apply because a federal court
issued the judgment. See also Crescent City Live-Stock, supra
(determining that prior federal-court judgment precluded a
subsequent claim under Louisiana law for malicious
prosecution); Bigelow v. Old Dominion Copper Mining &
Smelting Co., 225 U.S. 111, 130 (1912) (discussing, in
dictum, a question of New York preclusion law).



preclusive effect as a judgment of an Ohio state court, and lack of diversity
provides no basis to attack an Ohio state-court judgment. The Court's
willingness to consider this issue on the merits is instructive because, in
the Conformity Act era, this jurisdictional issue represented one of the few
issues of federal law that could have affected the preclusive effect of a
federal-court diversity judgment. Likewise, in other contexts where federal
law provided a distinct rule, this Court did not hesitate to ensure that state
courts did not impute collateral consequences to federal-court judgments
that were inconsistent with federal law. See, e.g.. 7'ullock v. Mulvane, 184
U.S. 497 (1902) (refusing to permit the recovery of attorneys' fees in a
state-law action arising out of an earlier federal-court injunction because
the Conformity Act did not cover a federal court's equitabte orders and
federal law prohibited an award of attorneys' fees).
15

None of those cases answers the question of whether a
recognizing court should apply the law of the rendering court
or the law of the State where the federal court sits when the
two bodies of law would provide different answers. Indeed,
such a situation did not arise in these cases because there was
no federal law of preclusion akin to Rule 41. The Court issued
these decisions against a background assumption (no longer
true in light of the Federal Rules) that federal courts sitting in
diversity functioned in all relevant respects like state courts
and applied the preclusion rules of the State where they sat.
See, e.g., Metcalf, 153 U.S. at 680. This assumption was
critical to the Court's statements that federal-court judgments
were to be treated no differently than state-court judgments.
For example, in Dupasseur, this Court observed that the
federal court's "proceedings were had in accordance with the
forms and course of proceedings in the State courts. It is
apparent, therefore, that no higher sanctity or effect can be
claimed for the judgment of the Circuit Court of the United
States rendered in such a case under such circumstances than is
due to the judgments of the State courts in a like case and
under similar circumstances." 88 U.S. at 135 (emphasis
added).

Petitioner relies on Dupasseur for the proposition that the
Maryland court should have applied a body of preclusion law
(Califomia's) different than that applied by the rendering
court (Rule 41(b)). Yet Dupasseur and the cases that followed
all applied the preclusion law of the rendering court. Not one
of the decisions supports the application of a law other than
the law of the rendering court. It is only that, before the
promulgation of Rule 41, the law of the rendering federal
court was the law of the State where the federal court sat.
Indeed, at the time of Dupasseur, had a plaintiff refiled the
same action in the same federal court that had just dismissed
it, the federal court would have evaluated the preclusive effect
of its first decision under the law of the State where it sat.
See, e.g., Antoncic v. Baltimore & Ohio R. Co.,





16
47 F.2d 97 (3d Cir. 1931) (applying Pennsylvania law);
Bohenik v. Delaware & Hudson Co., 49 F.2d 722 (2d Cir.
1931) (A. Hand, J.) (applying New York law); see generally
Restatement (Second) Judgments 87 cmt. a. As a result, the
pre-Rule 41(b) cases could not have looked to any other law
but state law.

Rule 41(b) changed all this. With the advent of the Federal
Rules in general and Rule 41(b) in particular, federal courts
sitting in diversity apply different "forms and
proceedings," Dupasseur, 88 U.S. at 135, and different
preclusion law. A federal court sitting in diversity applies
federal law (Rule 4 1(b)) that dictates a different result when
considering the preclusive effect of its prior judgment.
Accordingly, Dupasseur, which is premised on a functional
equivalence between a federal court sitting in diversity and a
state court, cannot be read to dictate the result in a case, like
this, where the federal courts employ different "forms and..
proceedings" and different preclusion rules.7



Deposit Bank of Frankfort supports this conclusion. That decision
distinguished Dupasseur as not applying to a federal-court judgment on a
federal question and applied federal law to determine the effect of a prior
federal-court judgment on a federal question. The Court had no occasion
to consider a situation in which a federal diversity court would have
applied a different preclusion rule than that applied by the state courts.
However, even though the Conformity Act covered federal courts
considering federal questions, the Court perceived a special rule of federal
law (presumably, federal common law) that entitled a federal-court
decision on a federal question to greater weight than a state-court
decision. Accordingly, where federal law applied a specific preclusion rule,
this Court did not hesitate to apply federal law, rather than the conflicting
state law. See 191 U.S. at 514-17; see also supra n.6. The same principle
should control this case. To be sure, Deposit Bank of Frank/ort can be read
to suggest that the federal interests in a federalcourt diversity judgment,
as opposed to a judgment on a federal question, do not justify creating a
federal-common-law rule of preclusion. However, that does not justify
ignoring existing positive federal
17

In sum, the authorities on which Petitioner relies never
framed, let alone answered, the critical question in this case
should a state court confronted with a federal-court judgment
decide the preclusive effect of that judgment based on the
rules of the rendering forum or the different rules applied in
the State where the federal court sits. Dupasseur does not
answer this question for the Court. This Court must confront
and answer this question as a matter of first impression.

C. The Law of Full Faith and Credit, Common
Sense, and Sound Policy All Support
Applying the Preclusion Law of the
Rendering Court, Namely Rule 4 1(b).

Although the question before this Court is one of first
impression, once the question is properly framed, discerning
the correct answer is not terribly difficult. In a choice
between deciding the preclusive effect of a prior judgment
based on the law of the court that rendered it or the different
law of a forum that did not render the decision, the latter
option has little to recommend it. On the other hand,
applying the law of the rendering court, i.e., the law that
would have applied had plaintiff refiled in the same court
rather than in a state court on the other side of the country,
is eminently reasonable. It comports with full faith and credit
principles. It makes common sense. It serves sound policy.

First, the principles of full faith and credit support
applying the law of the rendering court. The basic thrust of
those principles is to give judicial and legislative acts the full
faith and creditno more, no lessthat they would have in the
rendering forum. As Justice Story emphasized, the framers
"intended to give, not only faith and credit to the public acts,


preclusion law, like Rule 4 1(b). To the contrary, Deposit Bank of
Frankfort supports the application of federal preclusion law when there is
federal preclusion law to apply.





18 19

records, and judicial proceedings of each of the States .
but to give to them full faith and credit; that is, to attribute
to them positive and absolute verity, so that they cannot be
contradicted, or the truth of them be denied, any more than
in the State where they originated." 2 J. Story, Commentaries
on the Constitution 1310 at 191 (M. Bigelow, ed., 5th ed.
1891) (emphasis in original) (footnote omitted).

This principle protects a successful plaintiff by ensuring
that it can enforce a judgment even in a different jurisdiction.
The principle also protects a successful defendant by denying
the plaintiff an advantage from refiling an unsuccessful
action in a different forum. "It was the purpose of the Full
Faith and Credit Clause to preclude dissatisfied litigants from
taking advantage of the federal character of the Nation by
relitigating in one State issues that had been duly decided in
another. The clause was thus designed to promote a major
policy of the law: that there be certainty and finality and an
end to harassing litigation." Kovacs v. Brewer, 356 U.S. 604,
611(1958) (Frankfurter, J., dissenting).
Full faith and credit principles protect against the risk
"that questions and titles, once deliberately tried and decided
in one State, should be open to litigation again and again, as
often as either of the parties, or their privies, should choose
to remove from one jurisdiction to another." Story, supra, at
1309 at
190. As this Court observed in Riley v. New York Trust Co.,
315 U.S. 343, 348 (1942): "This clause of the Constitution
brings to our Union a useful means for ending litigation." It
prevents litigants from renewing "their legal battles whenever
they m[e]et in other jurisdictions," and "compels that
controversies be stilled." Id. at 349.

When a court is confronted with a judgment rendered by
another court, full faith and credit principles make the law of
the rendering court the logical reference point. The second
court should judge the validity and preclusive effect of the
first judgment based on the law of the rendering court. As
Justice Wilson concluded in one of the Nation's first full faith
and credit cases, "the record shall have the same effect in this
Court, as in the Court from which it was taken." Armstrong
v. Carson's Executors, I Fed. Cas. 1140, 1140 (C.C.D. Pa.
1794)? This is true in the state-then-state context, see, e.g.,
Green v. Van Buskirk, 72 U.S. 307, 310-11 (1866), in the
state-then-federal context, see, e.g., Mills, 11 U.S. (7
Cranch) at 485, and the federal-then-federal context, see,
e.g., GeIb v. Royal Globe Ins. Co., 798 F.2d 38, 4 1-42 (2d
Cir. 1986). It should be no less true in the federal-then-state
context presented in this case. Accordingly, when a state
court is confronted with a prior federal judgment, it should
look to Rule 4 1(b), which provides the governing law in the
rendering forum.

Petitioner's proposed alternative, requiring the second
court to look to the state law of California, makes no sense
as a practical matter. This would force the second court to


8 It bears emphasis that just because a state court applies the law of
the rendering forum to judge the preclusive effect of a federal-court
diversity judgment, it does not fidlow that federal law will control every
aspect of the preclusion analysis. On some questions, such as the effect of
a judgment "upon the merits" on attempts to relitigate the same claim,
federal law provides a definitive answer. On other questions, the law of the
rendering federal court in diversity remains the law of the State where the
federal court sits, just as it was on almost every question under the
Conformity Act. Cf supra n.6.

Justice Story made a similar point in Mills v. Duryee, 11 U.S. (7
Cranch) 481, 484 (1813). He noted that "when congress gave the effect of
a record to the judgment it gave all the collateral consequences. There is
no difficulty in the proof. It may be proved in the manner prescribed by
the act, and such proof is of as high a nature as an inspection, by the
Court, of its own record, or as an exemplification would be in any other
Court of the same state." Id. (emphasis added).





20 21

construct a completely artificial scenario. The court would
need to ask how a hypothetical California state court would
have treated a hypothetical second suit if, contrary to fact,
the first suit had been adjudicated in California state court.
The law of preclusion is difficult enough. There is no
justification for substituting this strained, counterfactual
inquiry for the question normally asked by the full faith and
credit analysis what preclusive effect does the rendering
court give to its own judgment.t

Applying the law of the rendering forum respects the
policies of the rendering forum and avoids unintended results.
For example, if a State had two parallel court systems with
concurrent jurisdiction over certain disputes but different
preclusion rules (for example, where a juvenile court and a
court of general jurisdiction shared jurisdiction over a statute,
but the juvenile court permitted reopening judgments as a
matter of course), what preclusion rule should a recognizing
court use to judge the preclusive effect of a judgment by one
of these courts? Should the subsequent court apply the
preclusion rule of the court that actually rendered the
decision? Or should it apply the rule of the other court that
did not adjudicate the first dispute, but adjudicates similar
questions under different circumstances? It would make
absolutely no sense to hold a juvenile forever bound by a
juvenile-court judgment or an adult free to reopen a prior
judgment from the court of general jurisdiction. It makes no
more sense to ignore Rule 4 1(b) and deny preclusive effect
to a federal-court judgment based on the preclusion law
applicable in California state courts, but that is precisely the
It
rule that Petitioner proposes.

Applying the law of the rendering forum also promotes
important federal policies. First and foremost, applying the
law of the rendering forum provides much-needed certainty.
Rule 41(b) dictates a clear answer to the preclusive effect of
a federal-court judgment by outlining clear default rules. In
the context of dismissals on statute of limitations grounds,
Rule 41(b) makes clear that such dismissals are presumptively
dismissals on the merits that preclude further litigation. To
be sure, a district court can deviate from the default rules by
clearly stating that a judgment will not have preclusive
effect. But that also provides certainty. Rule 41(b)
guarantees certainty as to the preclusive effect of the first
litigation at the end of the first litigation. Petitioner's
proposed rule creates uncertainty by making the preclusive
effect of federal-court judgments turn on a Maryland court's
resolution of unsettled principles of California law. Sec supra
n.2.

Rule 4 1(b) furthers the goal of certainty by encouraging
the rendering court to address expressly the preclusive effect
of





The logic of Petitioner's position suggests that state law should
determine the preclusive effect of a federal-court diversity judgment,
whether the recognizing forum is a state court or another federal court.
This produces the anomaly of forcing the federal courts to ignore Rule
41(b), even though both the rendering and recognizing courts are federal
courts bound by Rule 4 1(b). On the other hand, if the applicable
preclusion rule depends on whether the second action is filed in state or
federal court, then Petitioner's rule encourages forum shopping and
further undermines predictability. A proper analysis avoids these
anomalies by looking to the law of the rendering court (Rule 41(b)), no
matter where the second case is filed.
A uniform federal-law rule also would avoid awkward results when a
federal court adjudicates a federal-question claim together with a
supplemental state-law claim. For example, many plaintiffs bring related
state-law claims in addition to claims under 42 U.S.C. 1983, and
because state law supplies the statute of limitations for 1983 claims,
the 1983 claim and the state-law claims often are subject to the same
statute of limitations. Where a federal-law claim and a state-law claim
arise out of the same facts and are dismissed in the same judgment as
barred by the same statute of limitations, it would make no sense to hold
that the preclusive effect of that federal-court judgment was governed by
two different laws.





22 23

its judgment. The district court in Califomia took advantage
of that opportunity and made it unmistakably clear that it
dismissed the case _'in its entirety on the merits and with
prejudice." Pet. App. 59a.

Petitioner's proposed rule would undermine the
predictability provided by Rule 41(b). No matter how clearly a
federal court indicated that a judgment disposed of the case
"upon the merits," the ultimate preclusive effect would turn
on often-murky questions of state law. Rather than allowing
the rendering court to address the preclusive effect of its
judgment, Petitioner would judge the decision's preclusive
effect on the basis of the law of a different court (law that the
federal court would not even have jurisdiction to apply).

Applying the law of the rendering court also promotes the
legitimate federal interest in preventing the relitigation of
cases that have consumed scarce federal judicial resources.
Federal courts ration the scarce resource of diversity
jurisdiction by enforcing ~mount-in-controver5y, 28 U.S.C.
1332(a), and complete diversity requirements, Strawbridge
v. Curtiss, 7 U.S. (3 Cranch) 267 (1806). Rule 41(b) likewise
recognizes that federal-court jurisdiction is a scarce resource
that should not be squandered. if a case satisfies the
requirements for diversity jurisdiction and a federal court
adjudicates the case "on the merits," that should be conclusive.

Finally, it bears emphasis that affirming the Maryland
court's decision to look to the law of rendering court requires
neither a finding that Rule 41(b) applies in state court
proceedings, nor the overruling of Dupasseur. As noted, the
federal law of full faith and credit requires a state court to
look to the law of the rendering court to determine a
judgment's preclusive effect. It was clear long before the
promulgation of Rule 41(b) that federal full faith and credit
principles apply to limit a state court's treatment of prior
federal-court judgments. See, e.g., West Side Belt R.R. Co.,
219 U.S. at 102; McCormick, 23 U.S. (10 Wheat.) at 199.
Federal full faith and credit principles require state courts to
apply the law of the rendering forum, which is Rule 4 1(b).
But Rule 41(b) is not operating directly in state court, any
more than California preclusion law is operating directly in
Maryland court under Petitioner's proposed rule.

Equally important, applying Rule 4 1(b) where it supplies
the preclusion law of the rendering court in no way requires
the Court to overrule Dupasseur. Dupasseur and the cases
following it all applied the law of the rendering court (then,
state law) to judge the preclusive effect of a prior federal-
court judgment. That underlying principle has not changed.
What has changed is the preclusion law applied by the
rendering federal court. While federal courts formerly applied
state preclusion principles, they now apply Rule 4 1(b).

Requiring state courts to apply Rule 41(b) to judge the
preclusive effect of federal-court diversity judgments respects
rather than undermines the basic teaching of Dupasseur. The
central theme of Dupasseur is that a federal-court diversity
judgment is entitled to the same respect as other decisions.
This Court repeatedly invoked its jurisdiction to ensure this
equality of treatment. The law of the rendering court
determines the preclusive effect of the judgments of every
other court in the United States. Applying that same rule to
federal-court diversity judgments ensures that they do not
receive less weight than other judgments, but rather full faith
and credit.





24

CONCLUSION

For the foregoing reasons, and those expressed in
Respondent's Brief, this Court should affirm the judgment
below.

Respectfully submitted,



Of Counsel
HUGH F. YOUNG, JR.
PRODUCT LIABILITY
ADVISORY COUNCIL, INC.
1850 Centennial Park Dr.
Reston, Va 20191
(703) 264-5300
GRIFFIN B. BELL (Counsel
of Record)
CHILTON DAVIS VARNER
KING & SPALDING
191 Peachtree Street
Atlanta, Ga 30303
(404) 572-4600
PAUL D. CLEMENT
JEFFREY S. BUCHOLTZ
KING & SPALDING
1
7
3
0

P
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.
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.
Washington, DC 20006
(202) 737-0500
October 10, 2000 Counsel for Amicus Curiae
APPENDIX





Ia
APPENDIX A

CORPORATE MEMBERS, PRODUCT LIABILITY ADVISORY COUNCIL, INC.

3M

Allegiance Healthcare Corporation

American Home Products Corporation

American Medical Systems, Inc.

American Suzuki Motor Corporation

Andersen Corporation

Andrx Corporation

Anheuser-Busch Companies, Inc.

Appleton Papers, Inc.

Aventis Pharmaceuticals

BASF Corporation

Baxter International, Inc.

Bayer Corporation

BIG Corporation

Biomet, Inc.

Biro Manufacturing Company Inc.

Black & Decker (U.S.) Inc.

BMW of North America, Inc.

Boeing Company, The

Bombardier Inc., Recreational Products

Bridgestone/Firestone, Inc.

Briggs & Stratton


2a
Brown and Williamson Tobacco
Company

Brown-Forman Corporation

Budd Company, The

C. R. Bard, Inc.

Caterpillar, Inc.

Chevron Corporation

CLARK Material Handling Company

Coleman Company, Inc., The

Compaq

Continental General Tire, Inc.

Coors Brewing Company

DaimlerChrysler Corporation

Dana Corporation

Deere & Company

Dow Chemical Company, The

DuPont

E. & I. Gallo Winery

Eaton Corporation

Eli Lilly and Company

Emerson Electric Co.

Estee Lauder Companies

Euclid Hitachi Heavy Equipment, Inc.

Exxon Mobil Corporation

FMC Corporation

Ford Motor Company
3a
Freightliner Corporation

Gates Corporation, The; Stant
Corporation

General Electric Company

General Motors Corporation

Georgia-Pacific Corporation

Glaxo Wellcome Inc.

Global Industrial Technologies, Inc.

Goodyear Tire & Rubber Company, The

Great Dane Limited Partnership

Guidant Corporation

Harley-Davidson Motor Company

Harsco Corporation, Gas & Fluid Control
Group

Heil Company, The

Henkel Corporation

Honda North America, Inc.

Hyundai Motor America

International Paper Company

International Truck and Engine
Corporation

Isuzu Motors America, Inc.

Johnson & Johnson

Johnson Controls, Inc.

Joseph E. Seagram & Sons, Inc.

Kawasaki Motors Corp., U.S.A.

Kolcraft Enterprises, Inc.

Kraft Foods, Inc.





4a Sa

Lucent Technologies Inc.

Makita USA, Inc.

Mack Trucks, Inc.

Mazda (North America), Inc.

Medtronic, Inc.

Melroe Company

Mercedes-Benz of North America, Inc.

Michelin North America, Inc.

Miller Brewing Company

Mitsubishi Motors R. & D. of America,
Inc.

Motor Coach Industries International, Inc.

Navistar International Transportation
Corp.

Niro Inc.

Nissan North America, Inc.

0. F. Mossberg & Sons, Inc.

Otis Elevator Co.

PACCAR Inc

Panasonic Company

Pentair, Inc.

Pfizer Inc.

Philip Morris Companies, Inc.

Polaris

Porsche Cars North America, Inc.

Procter & Gamble Co., The

Raymond Corporation, The
Raytheon Aircraft Company

Rheem Manufacturing

RJ Reynolds Tobacco Company

Rover Group, Ltd.

Schindler Elevator Corp.

SCM Group USA, Inc.

Sears, Roebuck and Company

Shell Oil Company

Sherwin-Williams Company, The

Siemens Corporation

Smith & Nephew, Inc.

Snap-on Incorporated

Solutia Inc.

Sturm, Ruger & Co., Inc.

Subaru of America

Synthes (U.S.A.)

Textron Inc.

Thomas Built Buses, Inc.

Toro Company, The

Toshiba America Incorporated

Toyota Motor Sales, USA, Inc.

TRW Inc.

UST (U.S. Tobacco)

Volkswagen of America, Inc.

Volvo Cars of North America, Itic.





6a
Vulcan Materials Company

Whirlpool Corporation

Wilbur-Ellis Company

Wilson Trailer Company

Yamaha Motor Corporation, U.S.A.

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