IN THE SUPREME COURT OF FLORIDA. CASE NO.: SC DCA Case No.: 1D On Review From A Decision Of The First District Court Of Appeal

Transcription

1 IN THE SUPREME COURT OF FLORIDA STATE OF FLORIDA ex rel. KEVIN GRUPP and ROBERT MOLL, Petitioners, vs. CASE NO.: SC DCA Case No.: 1D DHL EXPRESS (USA), INC., DHL WORLDWIDE EXPRESS, INC., and DPWN HOLDINGS (USA), INC., Respondents. / RESPONDENTS BRIEF ON JURISDICTION On Review From A Decision Of The First District Court Of Appeal KATHERINE E. GIDDINGS (949396) THOMAS A. RANGE (568651) KRISTEN M. FIORE (25766) Akerman Senterfitt 106 East College Avenue, Suite 1200 Tallahassee, Florida Telephone: (850) Telecopier: (850) katherine.giddings@akerman.com EDWIN V. WOODSOME, JR. ANDREW S. WONG (admitted pro hac vice) Dechert LLP US Bank Tower 633 West 5th Street, 37th Floor Los Angeles, California Telephone: (213) Telecopier: (213) ed.woodsome@dechert.com Counsel for DHL Express (USA), Inc., DHL Worldwide Express, Inc., and DPWN Holdings (USA), Inc., Respondents

2 TABLE OF CONTENTS Page Table of Authorities... ii Statement of the Case and Facts...1 Summary of the Argument...2 Argument...3 Standard of Review... 3 I. PETITIONERS CITE THE DISTINGUISHABLE DECISIONS IN CRILL AND MANDICO OUT OF CONTEXT...4 II. PETITIONERS MISCONSTRUE THE DISTINGUISHABLE DECISIONS IN CRILL, SPARKMAN, AND GOLDMAN...8 Conclusion Certificate of Service Certificate of Font Compliance... 12

3 TABLE OF AUTHORITIES Cases Page Am. Airlines, Inc. v. Wolens, 513 U.S. 219 (1995)... 6 Am. Mar. Officers Union v. Merriken, 981 So. 2d 544 (Fla. 4th DCA 2008)... 6 Beaty v. State, 701 So. 2d 856 (Fla. 1997)... 3 Boca Burger, Inc. v. Forum, 912 So. 2d 561 (Fla. 2005)... 5 Crill v. State Road Dep t, 117 So. 795 (Fla. 1928)... passim Dep t of Banking & Fin. v. Standard Fed. Savs. & Loan Ass n, 488 So. 2d 50 (Fla. 1986)... 6 Dep t of Revenue ex rel. Jorda v. Fleet, 679 So. 2d 326 (Fla. 1st DCA 1996)... 6 DHL Express (USA), Inc. v. State ex rel. Grupp, 60 So. 3d 426 (Fla. 1st DCA 2011)... 1, 8 Gillis v. State, 959 So. 2d 194 (Fla. 2007)... 4 Mandico v. Taos Constr., Inc., 605 So. 2d 850 (Fla. 1992)... passim Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992)... 6 Ortiz v. State, 963 So. 2d 226 (Fla. 2007)...4 Pro-Med Clinical Sys., LLC v. Utopia Provider Sys., Inc., 18 So. 3d 1146 (Fla. 4th DCA 2009)... 6 Sherrod v. Franza, 427 So. 2d 161 (Fla. 1983)... 9 Southern Records & Tape Serv. v. Goldman, 502 So. 2d 413 (Fla. 1986)... passim ii

4 Sparkman v. McClure, 498 So. 2d 892 (Fla. 1986)... passim State ex rel. Smith v. Gomez, 179 So. 651 (Fla. 1938)... 9 Wash. Fed. Sav. & Loan Ass'n of Miami Beach v. Balaban, 281 So. 2d 15 (Fla. 1973)... 6 Codes and Statutes 68.08, Fla. Stat , Fla. Stat U.S.C (c)(1) U.S.C (b)(1)... 1 Rules Rule 9.210(a)(2), Fla. R. App. P Rule 1.140(b), Fla. R. Civ. P Rule 1.140(h)(2), Fla. R. Civ. P Constitutional Provisions Art. V, 3(b)(3), Fla. Const iii

5 STATEMENT OF THE CASE AND FACTS This is a straightforward case in which the First District Court of Appeal, in accordance with controlling U.S. Supreme Court precedent and well-settled legal doctrine, issued a writ of prohibition to prevent the circuit court from exercising subject matter jurisdiction over claims clearly preempted by federal law. Petitioners Kevin Grupp and Robert Moll are New York residents. Respondents, DHL Express (USA), Inc., DHL Worldwide Express, Inc., and DPWN Holdings (USA), Inc. ( DHL ), contracted with the State of Florida ( the State ) to provide courier services. DHL Express (USA), Inc. v. State ex rel. Grupp, 60 So. 3d 426, 427 (Fla. 1st DCA 2011) ( Decision ). Petitioners filed a qui tam lawsuit against DHL under the Florida False Claims Act ( , Fla. Stat.), asserting DHL was not allowed by contract to bill the State for certain fuel surcharges. Id. at The State refused to intervene. Id. at 428. DHL moved to dismiss the action, arguing on undisputed facts that the circuit court had no subject matter jurisdiction because the action was preempted by two federal statutes: the Airline Deregulation Act, 49 U.S.C (b)(1), and the Federal Aviation Administration Authorization Act, 48 U.S.C (c)(1). Id. The circuit court denied the motion, and DHL sought a writ of prohibition from the First District. Id. Following well-established precedent, the First District held that a writ of prohibition is proper where, as here, there are no disputed issues of fact and the

6 lower tribunal is poised to proceed without subject matter jurisdiction. Id. at 428. The court had no trouble concluding that federal law preempted the Petitioners qui tam lawsuit and issued a writ of prohibition to prevent the trial court from exercising subject matter jurisdiction where none existed. Id. Petitioners now seek discretionary review based on purported express and direct conflict with: Crill v. State Road Dep t, 117 So. 795 (Fla. 1928); Mandico v. Taos Constr., Inc., 605 So. 2d 850 (Fla. 1992); Sparkman v. McClure, 498 So. 2d 892 (Fla. 1986); and Southern Records & Tape Serv. v. Goldman, 502 So. 2d 413 (Fla. 1986). SUMMARY OF THE ARGUMENT The Decision does not expressly and directly conflict with the factually distinguishable, alleged conflict cases none of which involve preemption, the key issue in this case. Well-established precedent from this Court holds prohibition properly issues to prevent courts from exercising subject matter jurisdiction in cases involving preemption. Petitioners quote Crill and Mandico entirely out of context. Crill, decided in 1928, addressed a question of law over which the court had jurisdiction whether the condemnation statute under which the case was brought was constitutional. Like a statute of limitations question, the constitutionality of a statute does not go to the court s fundamental subject matter jurisdiction over an issue, as does preemption. Mandico turned on disputed facts involving immunity, which could 2

7 only be determined in the circuit court proceedings. By contrast, the facts in this case are undisputed. Petitioners also wrongly assert that Crill, Sparkman, and Goldman hold that prohibition is improper where another remedy exists. Those cases none of which involve preemption do not simply require another remedy. Well-established precedent of this Court requires that the remedy must be plain, speedy, and adequate. Courts recognize plenary appeal is not an adequate remedy in cases involving preemption because a court is exercising subject matter jurisdiction where none exists. Under Petitioners flawed logic, a writ of prohibition would never be appropriate because plenary appeal is available in every case. Accepting Petitioners view ignores well-established precedent, renders preemption completely meaningless, and eliminates prohibition altogether. ARGUMENT Standard of Review. This Court has discretionary jurisdiction to review a district court s decision that expressly and directly conflicts with a decision from another district court on the same question of law. Art. V, 3(b)(3), Fla. Const. The basis for conflict must appear within the four corners of the district court s decision. Beaty v. State, 701 So. 2d 856, 857 (Fla. 1997). 3

8 I. PETITIONERS CITE THE DISTINGUISHABLE DECISIONS IN CRILL AND MANDICO OUT OF CONTEXT. Express and direct conflict does not exist unless the cases have similar facts. Ortiz v. State, 963 So. 2d 226, 226 (Fla. 2007); Gillis v. State, 959 So. 2d 194, 194 (Fla. 2007). Citing the holdings of Crill and Mandico entirely out of context, the Petitioners ask this Court to ignore the obvious distinctions between those cases and the Decision. Most notable is that neither Crill nor Mandico involved the distinct legal issue here, preemption, and they are otherwise entirely factually distinguishable from the Decision. The 80-year-old decision in Crill involved whether prohibition was proper to prevent the circuit court from entertaining condemnation proceedings, over which it had subject matter jurisdiction, merely because the court upheld the constitutionality of the statute under which the plaintiff claimed the right to condemnation. 117 So. at This Court explained that prohibition is used to prevent courts from acting in excess of their jurisdiction, not from exercising their jurisdiction erroneously. 117 So. at Recognizing that the circuit court unquestionably had subject matter jurisdiction over the condemnation proceedings, the Court concluded prohibition was not proper in Crill because: 4

9 Whether the statute in question was constitutional, and whether under it the petitioner had any right to condemn the property described in the petition, was not a question going to the fundamental jurisdiction of the court over the subject-matter but was primarily merely a question of law affecting the right of the petitioner to maintain the suit, which point it had or would become necessary for the court to decide in its conduct of the proceedings. Id. at (emphasis added). In contrast, the issue of preemption here clearly involves a question going to the fundamental jurisdiction of the court over the subject-matter. Id. This Court has held that the issue of federal preemption is a question of subject matter jurisdiction. Boca Burger, Inc. v. Forum, 912 So. 2d 561, 568 (Fla. 2005). Petitioners claim the First District should have focused on whether the trial court had subject matter jurisdiction over False Claims Act cases in general as opposed to determining jurisdiction over this particular False Claims Act case. [Pet. Brf. at 6]. This misguided contention misses the point in preemption cases, of course, the state court would otherwise have subject matter jurisdiction but for the existence of overriding authority that divests that court of subject matter jurisdiction. The only relevant question here is whether the circuit court had jurisdiction over a Florida False Claims Act that was clearly preempted by federal law. United States Supreme Court precedent firmly establishes that Petitioners qui tam action in which the State refused to join is squarely preempted by 5

10 federal law prohibiting state regulation of air or motor carrier rates, routes, or services. Am. Airlines, Inc. v. Wolens, 513 U.S. 219 (1995); Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992). The Decision is entirely consistent with this Court s decision in Wash. Fed. Sav. & Loan Ass n of Miami Beach v. Balaban, 281 So. 2d 15 (Fla. 1973), which Petitioners ignore. There, this Court determined that if the lower court is without subject matter jurisdiction because of federal preemption, prohibition is the appropriate remedy. Id. at 16-17; see also Dep t of Banking & Fin. v. Standard Fed. Savs. & Loan Ass n, 488 So. 2d 50, 51 (Fla. 1986) (reaffirming Balaban). District courts of appeal have consistently followed this precedent. Pro-Med Clinical Sys., LLC v. Utopia Provider Sys., Inc., 18 So. 3d 1146, 1148 (Fla. 4th DCA 2009); Am. Mar. Officers Union v. Merriken, 981 So. 2d 544, 549 (Fla. 4th DCA 2008); Dep t of Revenue ex rel. Jorda v. Fleet, 679 So. 2d 326, 329 (Fla. 1st DCA 1996). In Merriken, for example, Judge Warner held that prohibition is appropriate where the circuit court has no subject-matter jurisdiction to consider the plaintiff s whistleblower claims because they are expressly preempted by federal law. 981 So. 2d at 549. As with Crill, Petitioners also cite the factually distinguishable decision in Mandico out of context. Mandico involved whether prohibition was proper to prevent the circuit court from considering a personal injury action where the 6

11 defendant asserted workers compensation immunity. 605 So. 2d at Petitioners incorrectly assert that Mandico parallels the instant case because both matters relate to the applicability of a defense with the potential to immunize a party from suit. [Pet. Brf. at 8]. Preemption and immunity are entirely different defenses under the law. Preemption goes to the fundamental question of subject matter jurisdiction. Immunity, like a statute of limitations question, is simply a question of law. Moreover, because subject matter jurisdiction is of such fundamental importance, the defense of lack of subject matter jurisdiction, unlike almost all other defenses, is a non-waivable defense that can be raised at any time. See Fla. R. Civ. P (b) and (h)(2). Petitioners also ignore another critical distinction the decision in Mandico turned on disputed issues of fact: [P]rohibition may not be used to divest a lower tribunal of jurisdiction to hear and determine the question of its own jurisdiction; nor may it be used to test the correctness of a lower tribunal s ruling on jurisdiction where the existence of jurisdiction depends on controverted facts that the inferior tribunal has jurisdiction to determine. 605 So. 2d at 854 (citation omitted; emphasis added). Prohibition was thus improper because the validity of the workers compensation immunity defense could only be determined in the course of litigation. Mandico, 605 So. 2d at

12 No direct and express conflict exists with Mandico because the Decision here involves uncontroverted facts. DHL Express (USA), Inc., 60 So. 3d at 426 (writ of prohibition is proper where there are no disputed issues of fact and the lower tribunal is poised to proceed without subject-matter jurisdiction. ) (emphasis added). Petitioners concede prohibition is available to remedy an encroachment of jurisdiction. [Pet. Brf. at 8-9]. Because the facts here are not in dispute and the state law claims were clearly preempted by federal law, there was nothing to determine in the course of litigation, and prohibition was proper. II. PETITIONERS MISCONSTRUE THE DISTINGUISHABLE DECISIONS IN CRILL, SPARKMAN, AND GOLDMAN. Petitioners next claim the Decision conflicts with Crill, Sparkman, and Goldman because those cases allegedly hold prohibition is available only where the party seeking the writ has no means for plenary review. [Pet. Brf. at 8-10]. They are wrong on both the facts and the law. Accepting this claim not only ignores long-established law, but also means that prohibition could never issue because plenary review is available in every case. As with Crill and Mandico, Sparkman and Goldman do not involve preemption and are otherwise factually distinguishable. In Sparkman, a criminal defendant filed a petition for writ of prohibition alleging a violation of his speedy trial rights. 498 So. 2d at 894. Prohibition is routinely issued in speedy trial cases. 8

13 See, e.g. Sherrod v. Franza, 427 So. 2d 161, 163 (Fla. 1983). However, in Sparkman, the Court found prohibition improper because Sparkman had already been convicted and was simultaneously pursuing an appeal from the denial of his writ of prohibition and a separate appeal from his conviction. 498 So. 2d at 895. In Goldman, the defendant sought a writ of prohibition to prevent the circuit court from exercising jurisdiction over a complaint within the jurisdiction of the county court. 502 So. 2d at Consistent with this Court s precedent, the Court found prohibition improper because the circuit court s decision turned on disputed issues of fact, which could be challenged on appeal. Id. at 414. Petitioners wrongly claim Crill, Sparkman, and Goldman limit[] prohibition to instances when there is no other remedy, and here DHL allegedly has a remedy of plenary appeal. [Pet. Brf. at 10]. The cases actually hold prohibition is improper where the petitioner has an adequate remedy via appeal, not where the petitioner has no other remedy. Crill, 117 So. at 797 (writ only issues if party is without other adequate means of redress for the wrong ); Sparkman, 498 So. 2d at 895 (writ unavailable if defendant has an adequate remedy via appeal. ); Goldman, 502 So. 2d at 414 ( [Prohibition] is not available... if another appropriate and adequate legal remedy exists. ) (emphasis added). Prohibition may lie if the other remedy would not afford relief that is plain, speedy, and adequate. State ex rel. Smith v. Gomez, 179 So. 651, 657 (Fla. 1938) 9

14 (citation omitted). As this Court has recognized, forcing defendants to wait until litigation concludes to appeal a clear lack of subject matter jurisdiction under undisputed facts does not meet these requirements. CONCLUSION This Court should decline jurisdiction to review the Decision because it does not expressly and directly conflict with any of the distinguishable, alleged conflict cases. This case involves the limited question of whether prohibition is proper to prevent a court from proceeding when it lacks subject matter jurisdiction due to federal preemption. Not only does Petitioners position ignore long-established precedent holding prohibition is proper under these circumstances; but it also would render prohibition meaningless. 10

15 Respectfully submitted, KATHERINE E. GIDDINGS (949396) THOMAS A. RANGE (568651) KRISTEN M. FIORE (25766) Akerman Senterfitt 106 East College Avenue, Suite 1200 Tallahassee, Florida Telephone: (850) Telecopier: (850) EDWIN V. WOODSOME, JR. ANDREW S. WONG (admitted pro hac vice ) Dechert LLP US Bank Tower 633 West 5th Street, 37th Floor Los Angeles, California Telephone: (213) Telecopier: (213) ed.woodsome@dechert.com 11

16 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via U.S. Mail on July, 2011 to the persons on the attached service list. Service List: Jerry R. Linscott, Esq. Robert W. Thielhelm, Jr., Esq. Jacob R. Stump, Esq. BAKER & HOSTETLER 200 South Orange Avenue Orlando, Florida Counsel for Petitioners J. Mark Kraus, Esq. Assistant Attorney General Department of Legal Affairs Economic Crimes Division STATE OF FLORIDA The Capitol PL-01 Tallahassee, Florida Counsel for State of Florida KATHERINE E. GIDDINGS Daniel C. Oliviero, Esq. Joseph V. Sedita, Esq. John L. Sinatra, Jr., Esq. HODGSON RUSS 140 Pearl Street, Suite 100 Buffalo, New York Counsel for Petitioners Honorable Jackie L. Fulford Circuit Judge, Second Judicial Circuit Leon County Courthouse, Room 365-D Tallahassee, Florida CERTIFICATE OF FONT COMPLIANCE I HEREBY CERTIFY that the font used in this brief is the Times New Roman 14-point font and that the brief complies with the font requirements of Rule 9.210(a)(2), Florida Rules of Appellate Procedure. KATHERINE E. GIDDINGS 12