Clymore, et al v. Federal Railroad Administration et al

Filing 48

ORDER DENYING 42 Plaintiff's Motion Regarding Collateral Estoppel; ORDER VACATING October 5, 2015, Hearing; and ORDER SUBSTITUTING the United States as Defendant in Place of Federal Railroad Administration and Charles Mark Hagood signed by District Judge Anthony W. Ishii on 9/29/2015. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RICHARD CLYMORE and DEBRA
HARBIN-CLYMORE,
Plaintiffs

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v.

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FEDERAL RAILROAD
ADMINISTRATION, CHARLES MARK
HAGOOD, and DOES 1 through 10,
inclusive,

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CASE NO. 1:14-CV-101 AWI SMS
ORDER VACATING HEARING AND
ORDER ON PLAINTIFF’S MOTION
REGARDING COLLATERAL
ESTOPPEL
(Doc. No. 47)

Defendants

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This is a wrongful death case that arises from the conduct of Charles Hagood (“Hagood”),

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while he was acting in the course and scope of his employment with the Federal Railroad

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Administration (“FRA”). On April 4, 2014, pursuant to 28 U.S.C. § 2679(d)(1) the United States

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filed a notice of substitution as defendant, in place of Hagood and the FRA. See Doc. No. 7. On

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August 31, 2015, Plaintiffs filed several motions,1 including a motion for an order that collateral

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estoppel applies to the criminal conviction of Hagood. See Doc. No. 47. Hearing on this motion

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has been set for October 5, 2015. The Court has reviewed the papers and determined that this

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matter is suitable for decision without oral argument.2 See Local Rule 230(g). As such, the Court

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will vacate the October 5, 2015 hearing, and instead issue this order, which resolves Plaintiffs’

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motion.

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Plaintiff filed two other motions that deal with discovery matters. Those motions currently are pending before the
Magistrate Judge.
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The Court notes that Plaintiffs’ reply memorandum was due September 28, 2015, see Local Rule 230(d), but no
reply was filed.

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Parties’ Arguments

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Plaintiffs argue that Hagood was convicted in California state court of vehicular

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manslaughter on June 24, 2015. In that trial, Hagood asserted a medical emergency defense, but

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the jury rejected that defense when it found him guilty. The United States is asserting the same

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medical emergency defense in this case. The four elements of collateral estoppel (identity of

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issues, a decision on the merits, identity of parties or privity, and an actual and necessary decision

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on the issue) are met with respect to the medical emergency theory, based on Hagood’s

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conviction.3 Therefore, the United States should be collaterally estopped from asserting the

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medical emergency defense and disputing liability.

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The United States argues that Plaintiffs have not submitted sufficient evidence to show that

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the medical emergency defense was rejected by a jury during Hagood’s criminal case. Moreover,

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the United States was not a party to Hagood’s criminal case. Because it was not a party, the

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offensive use of collateral estoppel against the United States is improper.

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Discussion

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1.

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The Supreme Court has held that “nonmutual offensive collateral estoppel” does not apply

Collateral Estoppel

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against the United States. United States v. Mendoza, 464 U.S. 154, 162 (1983); Kanter v.

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Commissioner, 590 F.3d 410, 419 (7th Cir. 2009); United States v. Maybusher, 735 F.2d 366, 370

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(9th Cir. 1984). “Nonmutual collateral estoppel refers to use of collateral estoppel by a nonparty

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to a previous action to preclude a party to that action from relitigating a previously determined

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issue in a subsequent lawsuit against the nonparty.” Idaho Potato Comm’n v. G&T Terminal

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Packaging, Inc., 425 F.3d 708, 713 n.3 (9th Cir. 2005). “‘Offensive’ use of nonmutual collateral

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estoppel occurs when a plaintiff seeks to prevent a defendant from relitigating an issue that the

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defendant previously litigated unsuccessfully against a different party.” Id. (citing Mendoza, 464

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U.S. at 159 n.4); see Kanter, 590 F.3d at 419 (noting that “offensive” use is “the use of a finding

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of fact from an earlier proceeding by a plaintiff, to establish part of its case.”).

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The Court notes that Plaintiffs cite several Illinois state court decisions in their motion. It is unknown why these
decisions are cited, as Illinois law does not appear to be a part of this case.

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Here, Plaintiffs were not parties to the criminal prosecution of Hagood, and they contend

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that the United States was in privity with Hagood. Accepting that the United States and Hagood

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are in privity for purposes of this motion only, the United States would then be on the same

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footing as a party to the criminal prosecution. See Hydranautics v. FilmTec Corp., 204 F.3d 880,

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885 (9th Cir. 2000). Further, although Plaintiffs have submitted no evidence on the point,

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Plaintiffs’ position is that the criminal jury made a finding that Hagood was not suffering from a

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medical emergency. Plaintiffs are clearly attempting to use that implied finding to establish

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liability and prevent the United States from relitigating the medical emergency defense. Thus,

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Plaintiffs is invoking nonmutual offensive collateral estoppel against the United States. See

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Kanter, 590 F.3d at 419. Pursuant to Mendoza, Plaintiffs cannot use collateral estoppel to prevent

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the United States from utilizing a medical emergency defense in this case. See Mendoza, 464 U.S.

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at 162; Kanter, 590 F.3d at 419; Maybusher, 735 F.2d at 370. Therefore, Plaintiff’s motion will be

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denied. See id.

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2.

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Once a scope of employment certification is filed, the lawsuit is “deemed an action against

Substitution of Defendants

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the United States,” and “the United States shall be substituted as the party defendant.” 28 U.S.C.

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§ 2679(d)(1); Billings v. United States, 57 F.3d 797, 799 (9th Cir. 1995); Ward v. Gordon, 999

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F.2d 1399, 1401 (9th Cir. 1993). The purpose of § 2679(d)(1) is to “remove the potential

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personal liability of Federal employees for common law torts committed within the scope of their

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employment, and . . . instead provide that the exclusive remedy for such torts is through an action

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against the United States under the Federal Tort Claims Act.” Billings, 57 F.3d at 799.

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Here, as noted above, the United States filed a notice of substitution pursuant to 28 U.S.C.

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§ 2679(d)(1), which included a certification that Hagood was acting within the scope of his

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employment with the FRA. See Doc. No. 7. Although a scheduling order issued in which the

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United States appeared, no formal order of substitution has issued. Further, over a year has

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passed, and Plaintiffs have not challenged that certification. Therefore, the Court will take this

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opportunity and formally substitute the United States in place of Hagood and the FRA. See 28

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U.S.C. § 2679(d)(1); Billings, 57 F.3d at 799; Ward, 999 F.2d at 1401.
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ORDER

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Accordingly, IT IS HEREBY ORDERED that:

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The October 5, 2015 hearing is VACATED;

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2.

Plaintiffs’ motion regarding collateral estoppel (Doc. No. 42) is DENIED;

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3.

Pursuant to the April 4, 2014 certification and 28 U.S.C. § 2679(d)(1), the United States is

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SUBSTITUTED as the Defendant in place of Charles Hagood and the Federal Railroad

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Administration.

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IT IS SO ORDERED.
Dated: September 29, 2015
SENIOR DISTRICT JUDGE

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