In Re Flat Glass ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
11-3-2004
In Re Flat Glass
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-2920
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Recommended Citation
"In Re Flat Glass " (2004). 2004 Decisions. Paper 148.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-2920
IN RE FLAT GLASS ANTITRUST LITIGATION
(MDL No. 1200)
BRIAN S. NELSON, d/b/a Jamestown Glass Service; MEL'S AUTO GLASS, INC.;
A. WAXMAN & CO., on behalf of itself, and all others similarly situated;
DESIGNER WINDOWS, INC., on behalf of itself and all others similarly situated;
MOSES MOORE ALL GLASS ASPECTS, INC., on behalf of itself and all others
similarly situated; AAA GLASS, INC., on behalf of itself and all others similarly
situated, d/b/a The Glass Doctor; THE LURIE COMPANIES, INC.;
VSTB ENTERPRISES, INC., d/b/a Perfecto Auto Glass & Upholstery and its
successors; PORT CITY GLASS & MIRROR, INC., on its own behalf and on behalf of
all others similarly situated; JOHN HEALY, JR.; COUNTY AUTO GLASS, INC., on
behalf of themselves and all others similarly situated; GERARD J. CLABBERS, on
behalf of himself and all others similarly situated; KIRSCHNER CORPORATION,
INC., t/a Berwyn Glass Company, on behalf of itself and all others similarly situated;
HARTUNG AGALITE GLASS CO., d/b/a Hartung Glass Industries;
ALL STAR GLASS, INC., on behalf of itself and all others similarly situated;
SUPERIOR WINDSHIELD INSTALLATION, INC., on its own behalf and on behalf of
all others similarly situated; JOVI, INC., on behalf of itself and all others similarly
situated, t/a Easton Area Glass; ENGINEERED GLASS WALLS, INC., on behalf of
itself and all others similarly situated; BAILES GLASS CO.; INTERSTATE GLASS
DISTRIBUTORS, INC., on behalf of itself and all others similarly situated;
ORLANDO AUTO TOP, INC.; MAYFLOWER SALES CO., INC., on behalf of itself
and all others similarly situated; CARDINAL IG; REED'S BODY SHOP, INC.;
BELETZ BROTHERS GLASS COMPANY, INC.; COMPLAST, INC.;
WESTERN STATES GLASS, on behalf of itself and all others similarly situated;
GRIMES AUTO GLASS, INC.; D&S GLASS SERVICES, INC.; GEORGE BROWN &
SON GLASS WORKS, INC.; THERMAL CHEK, INC.; MOBILE GLASS, INC.,
individually and as a representative of a class; JELD-WEN, INC., an Oregon
corporation; JELD-WEN CANADA LIMITED, a Canadian corporation;
JELD-WEN ARIZONA, INC., an Arizona corporation; AVANTI INDUSTRIES, INC.,
an Arizona corporation; LAKEWOOD CITY GLASS, INC.; CAROLINA MIRROR;
ALLSTATE INSURANCE COMPANY; ALLSTATE INDEMNITY COMPANY
v.
PILKINGTON PLC; PILKINGTON LIBBEY-OWENS-FORD CO., INC.; AFG
INDUSTRIES, INC.; GUARDIAN INDUSTRIES CORPORATION; PPG
INDUSTRIES, INC.; LIBBEY-OWENS-FORD CO., INC.; ASAHI GLASS CO., LTD.;
FORD MOTOR CO.; PILKINGTON HOLDINGS; ASAHI GLASS AMERICA, INC.
UNITED STATES OF AMERICA (Intervenor in D.C.)
(D.C. No. 97-mc-00550)
Class Plaintiffs and Grimes Auto Glass,
Appellants
Before: NYGAARD, MCKEE and CHERTOFF, Circuit Judges
(Filed: November 3, 2004)
OPINION SUR DENIAL OF PANEL REHEARING
CHERTOFF, Circuit Judge.
This case is before the Court on the petition of the Plaintiff-Appellants for panel
rehearing of its September 29, 2004 Opinion “insofar as it found that Plaintiffs did not
appeal the District Court’s Memorandum Order dated May 29, 2003 (the “Order”)
excluding the grand jury testimony of Ronald W. Skeddle.” (Pet. at 1.) This Court
denies rehearing for the two reasons explained herein.
2
First, Federal Rule of Appellate Procedure 28(a)(5) and Third Circuit Local
Appellate Rule 28.1(a) provide that an issue will only be addressed by the Court if the
appellant sets forth the issue in a “statement of issues presented for review” and presents
argument in support of the issue in its opening brief. Kost v. Kozakiewicz, 1 F.3d 176,
182 (3d Cir. 1993) (citing Fed. R. App. P. 28(a)(5); Local App. R. 28.1(a)); see also 16A
Fed. Prac. & Proc. 3d § 3974.1 (“to assure consideration of an issue by the court the
appellant must both raise it in this ‘Statement of the Issues’ and pursue it in the
‘Argument’ portion of the brief”). “It is well settled that if an appellant fails to comply
with these requirements on a particular issue, the appellant normally has abandoned and
waived that issue on appeal and it need not be addressed by the court of appeals.” Kost,
1 F.3d at 182 (citing cases).
The Plaintiff-Appellants seek rehearing on an issue that they did not raise in their
“Statement of Issues on Appeal,” (see Appellant Br. at 5-6.), and that they referred to
once in the “Argument” portion of the brief in a footnote, (see id. at 76 n.63).1 In
addition, their reference to the Skeddle grand jury testimony in the footnote did not
purport to raise the issue for consideration; instead it stated in a section relating to the
1
The Plaintiff-Appellants also made passing reference to the grand jury testimony
in their “Preliminary Statement” where they stated that “Plaintiffs believe this ruling was
error” in reference to the District Court’s decision to exclude the grand jury testimony,
(Appellant Br. at 3, n.1), and in their “Statement of Facts” where they stated that the
“grand jury testimony [was] erroneously stricken from the summary judgment record by
the District Court in response to motions in limine filed by PPG,” (id. at 18).
3
District Court’s suppression of notes written by Ronald Skeddle that “[t]he District Court
compounded its error by excluding Skeddle’s and Bryant’s grand jury testimony. This
type of evidence has sufficient guarantees of trustworthiness to be admissible under Rule
807. [citing cases].” This “casual[] mention” of the grand jury testimony “is insufficient
to preserve the issue for review on appeal.” Nagle v. Alspach, 8 F.3d 141, 143 (3d Cir.
1993) (citing Simmons v. City of Philadelphia, 947 F.2d 1042, 1066 (3d Cir. 1991)).
Second, even if the Plaintiff-Appellants had properly raised this issue in their
brief, rehearing is not warranted because the District Court properly excluded the grand
jury testimony. The Plaintiff-Appellants assert that this Court should find that Skeddle’s
grand jury testimony has “sufficient guarantees of trustworthiness” for admissibility
under Federal Rule of Evidence 807, the residual exception to the hearsay rule,2 for the
same reasons that the Court remanded the issue of whether Skeddle’s handwritten notes
had “trustworthiness and reliability” as statements against interest under Rule 804(b)(3).3
2
Fed. R. Evid. 807 provides, in pertinent part:
A statement not specifically covered by Rule 803 or 804 but having
equivalent circumstantial guarantees of trustworthiness, is not excluded by
the hearsay rule, if the court determines that (A) the statement is offered as
evidence of a material fact; (B) the statement is more probative on the point
for which it is offered than any other evidence which the proponent can
procure through reasonable efforts; and (C) the general purposes of these
rules and the interests of justice will best be served by admission of the
statement into evidence. . . .
3
Fed. R. Evid. 804(b)(3) provides:
The following are not excluded by the hearsay rule if the declarant is
unavailable as a witness . . . A statement which was at the time of its
making so far contrary to the declarant's pecuniary or proprietary interest,
4
The Skeddle grand jury testimony, though, is fundamentally different from the
Skeddle notes for purposes of admissibility because there is no question that Skeddle’s
testimony to the grand jury was not contemporaneous. In considering the Skeddle notes,
for which a question of timing remains, this Court explained that:
We agree . . . that a finding that Skeddle’s notes were not contemporaneous
would support a conclusion that the statements are not reliable or
corroborated by the circumstances. Skeddle left LOF under a cloud of
mutual disaffection. Consequently, documenting LOF wrongdoing during a
time when LOF was alleging that Skeddle himself had engaged in
wrongdoing would tend to impugn Skeddle’s motives and therefore also
the reliability of the statements. But it is not clear that the District Court
excluded Skeddle’s notes because it found that they were not
contemporaneous. Moreover, it is not clear that the record supports such a
conclusion; on their face, many of the notes give no indication that they
were ex post fabrications.
Slip Op. at 32-33. For the same reasons, the District Court was well within its discretion
in concluding that Skeddle’s after-the-fact testimony does not have circumstantial
guarantees of trustworthiness for purposes of Rule 807.
or so far tended to subject the declarant to civil or criminal liability, or to
render invalid a claim by the declarant against another, that a reasonable
person in the declarant's position would not have made the statement unless
believing it to be true. A statement tending to expose the declarant to
criminal liability and offered to exculpate the accused is not admissible
unless corroborating circumstances clearly indicate the trustworthiness of
the statement.
5
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-2920
IN RE FLAT GLASS ANTITRUST LITIGATION
(MDL No. 1200)
BRIAN S. NELSON, d/b/a Jamestown Glass Service; MEL'S AUTO GLASS, INC.;
A. WAXMAN & CO., on behalf of itself, and all others similarly situated;
DESIGNER WINDOWS, INC., on behalf of itself and all others similarly situated;
MOSES MOORE ALL GLASS ASPECTS, INC., on behalf of itself and all others
similarly situated; AAA GLASS, INC., on behalf of itself and all others similarly
situated, d/b/a The Glass Doctor; THE LURIE COMPANIES, INC.;
VSTB ENTERPRISES, INC., d/b/a Perfecto Auto Glass & Upholstery and its
successors; PORT CITY GLASS & MIRROR, INC., on its own behalf and on behalf of
all others similarly situated; JOHN HEALY, JR.; COUNTY AUTO GLASS, INC., on
behalf of themselves and all others similarly situated; GERARD J. CLABBERS, on
behalf of himself and all others similarly situated; KIRSCHNER CORPORATION,
INC., t/a Berwyn Glass Company, on behalf of itself and all others similarly situated;
HARTUNG AGALITE GLASS CO., d/b/a Hartung Glass Industries;
ALL STAR GLASS, INC., on behalf of itself and all others similarly situated;
SUPERIOR WINDSHIELD INSTALLATION, INC., on its own behalf and on behalf of
all others similarly situated; JOVI, INC., on behalf of itself and all others similarly
situated, t/a Easton Area Glass; ENGINEERED GLASS WALLS, INC., on behalf of
itself and all others similarly situated; BAILES GLASS CO.; INTERSTATE GLASS
DISTRIBUTORS, INC., on behalf of itself and all others similarly situated;
ORLANDO AUTO TOP, INC.; MAYFLOWER SALES CO., INC., on behalf of itself
6
and all others similarly situated; CARDINAL IG; REED'S BODY SHOP, INC.;
BELETZ BROTHERS GLASS COMPANY, INC.; COMPLAST, INC.;
WESTERN STATES GLASS, on behalf of itself and all others similarly situated;
GRIMES AUTO GLASS, INC.; D&S GLASS SERVICES, INC.; GEORGE BROWN &
SON GLASS WORKS, INC.; THERMAL CHEK, INC.; MOBILE GLASS, INC.,
individually and as a representative of a class; JELD-WEN, INC., an Oregon
corporation; JELD-WEN CANADA LIMITED, a Canadian corporation;
JELD-WEN ARIZONA, INC., an Arizona corporation; AVANTI INDUSTRIES, INC.,
an Arizona corporation; LAKEWOOD CITY GLASS, INC.; CAROLINA MIRROR;
ALLSTATE INSURANCE COMPANY; ALLSTATE INDEMNITY COMPANY
v.
PILKINGTON PLC; PILKINGTON LIBBEY-OWENS-FORD CO., INC.; AFG
INDUSTRIES, INC.; GUARDIAN INDUSTRIES CORPORATION; PPG
INDUSTRIES, INC.; LIBBEY-OWENS-FORD CO., INC.; ASAHI GLASS CO., LTD.;
FORD MOTOR CO.; PILKINGTON HOLDINGS; ASAHI GLASS AMERICA, INC.
UNITED STATES OF AMERICA (Intervenor in D.C.)
(D.C. No. 97-mc-00550)
Class Plaintiffs and Grimes Auto Glass,
Appellants
Before: NYGAARD, MCKEE and CHERTOFF, Circuit Judges
SUR PETITION FOR PANEL REHEARING
The petition for panel rehearing filed by Plaintiffs-Appellants in the above-entitled
case having been submitted to the judges who participated in the decision of this Court,
7
and no judge who concurred in the decision having asked for rehearing, the petition for
rehearing by the panel, is denied.
BY THE COURT,
/s/ Michael Chertoff
Circuit Judge
Dated: November 3, 2004
ghb/cc: Daniel E. Bacine, Esq.
(Robert N. Kaplan, Esq.
Richard J. Kilsheimer, Esq.
David J. Armstrong, Esq.
Paul M. Dodyk, Esq.
J. Michael Murray, Esq.
Elliot Silverman, Esq.
Michael S. Sommer, Esq.
8