ORDER #55-Remand denying the Motion for Relief From Certain Provisions of Order #1015.

May 29, 2015 12:00 am by Gene Borio

The PDF is Here

EXCERPT:

It is not disputed that B&W Tobacco is not now subject to a permanent injunction in its own right, as it no longer has tobacco operations. In its Motion, RJR argues that it also should not be subject to a permanent injunction in its capacity as successor to B&W Tobacco’s operations.

RJR argues that because “this Court lacks jurisdiction to impose the corrective-statements remedy against B&W Tobacco or against RJR on B&W Tobacco’s behalf[,]” apermanent injunction to do so is void….

Finally, since the statements are not void under Rule 60(b)(4) and the Court has already ruled that Defendants have waived their arguments under their alternative ground for relief, Rule 60(b)(6), the Defendants have no other avenue for reconsideration — at this late date — of overturning the Court’s injunction ordering B&W Tobacco to air one television spot per week of the corrective action statements.

In short, RJR’s attempt to turn its merits argument into a jurisdictional argument so that it can succeed under Rule 60(b)(4) fails, and its Motion shall be denied.

END EXCERPT

FULL TEXT:

Case 1:99-cv-02496-GK Document 6147 Filed 05/28/15 Page 1of 5

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

Plaintiff,

v.

PHILLIP MORRIS USA, et al.,
Defendants.

Civil Action No. 99-2496 (GK)

ORDER #SS-Remand

Defendant R.J. Reynolds Tobacco Company (”RJR”) has filed a Motion for Relief From Certain Provisions of Order #1015 Pursuant to Fed. R. Civ. P. 60(b)(4) or, in the Alternative, 60(b)(6).

I. BACKGROUND

In 1999, when this case began, Defendant Brown & Williamson Tobacco Corporation (”B&W Tobacco”) was an indirect subsidiary of British American Tobacco plc (”BATCO plc”) and Defendant R.J. Reynolds was, at that time, a subsidiary of R.J. Reynolds Holdings, Inc. On June 30, 2004, the assets of the tobacco companies were merged, forming Reynolds American, Inc. (”RAI”). After further mergers and acquisitions, the Parties agreed that B&W Holdings, one of the remaining companies, should be dismissed from the case [Dkt. No. 5846]. When the Court imposed its post-trial injunctive remedies in 2006, they applied to RJR in its own right, and to RJR in its capacity as successor to B&W Tobacco’s interests. It is not disputed that B&W Tobacco is not now subject to a permanent injunction in its own right, as it no longer has tobacco operations. In its Motion, RJR argues that it also should not be subject to a permanent injunction in its capacity as successor to B&W Tobacco’s operations.
.. Case 1:99-cv-02496-GK Document 6147 Filed 05/28/15 Page 2 of 5

RJR argues that because “this Court lacks jurisdiction to impose the corrective-statements remedy against B&W Tobacco or against RJR on B&W Tobacco’s behalf[,]” apermanent injunction to do so is void. Mot. at 2.
ANALYSIS

Federal Rule of Civil Procedure 60(b)(6)

Federal Rule of Civil Procedure 60(b) provides that, “[o]n motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding.”Fed. R. Civ. P. 60(b). The Rule establishes six reasons which mayjustify relief from a finaljudgment. RJR’ s Motion raises claims under Fed. R. Civ. P. 60(b)(4) and (6).
Rule 60(b)(6) “grants federal courts broad authority to relieve a party from final judgment upon such terms as are just, provided that the motion is made within a reasonable time and is not premised on one of the grounds for relief enumerated in clauses (b)( 1) through (b)(5).” Bowyar v. Dist. of Columbia, 779 F.Supp.2d 159, 162-63 (D.D.C. 2011). Most importantly, Rule 60(b)(6) “may not be used as a substitute for an appeal not taken.” Twelve John Does v. D.C., 841 F.2d 1133, 1141 (D.C. Cir. 1988). “The rule serves judicial economy by forcing parties to raise issues whose resolution might spare the Court and the parties later rounds of remands and appeals.” Hartman v. Duffy, 88 F.3d 1232, 1236 (D.C. Cir. 1996)(discussing rule against successive appeals). First, this Motion was not “made within a reasonable period of time.” Appeal of the final
2006 Remedial Order was filed on September 11, 2006. RJR had more than ample time to raise the specific matters at issue in this Motion during the appeal proceedings. It failed to do so.
Second, the Supreme Court has said, “[O]ur cases have required a movant seeking relief under Rule 60(b)(6) to show ‘extraordinary circumstances’ justifying the reopening of a final

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judgment.” Gonzalez v. Crosby, 545 U.S. 524, 535 (2005). Our Court of Appeals has emphasized

the same. Salazar ex rel. Salazar v. D.C., 633 F.3d 1110, 1116 (D.C. Cir. 2011). The circumstances presented in this Motion are not extraordinary.
Finally, as our Court of Appeals has stated, “it is elementary that where an argument could have been raised on an initial appeal, it is inappropriate to consider that argument” subsequently. N.W. Ind. Tel. Co. , Inc. v. F.C.C., 872 F.2d 465, 470 (D.C. Cir. 1989). Since RJR failed to raise this issue, and since none of its explanations or excuses about that failure have merit, it is now precluded from proceeding under Rule 60(b)(6).
For these reasons, RJR fails to meet the requirements of Rule 60(b)(6).

B. Federal Rule of Civil Procedure 60(b)(4)

Rule 60(b)(4) authorizes a court to grant relief from ajudgment that is “void.” Fed. R. Civ.

P. 60(b)(4). A judgment is “void” for purposes of Rule 60(b)(4) “‘if the court lacked . . . subject­ matter jurisdiction,”‘ Bell Helicopter Textron Inc. v. Islamic Republic oflran, 892 F.Supp.2d 219, 222 (D.D.C. 2012) (quoting Ramirez v. Dept. of Justice, 680 F.Supp.2d 208, 210 (D.D.C. 2010), “‘[or] proceeded beyond the powers claimed to it by law.”‘ David v. Dist. of Columbia, 252 F.R.D. 56, 59 (D.D.C. 2008) (quoting Muwekma Tribe v. Norton, 206 F.Supp.2d 1, 3 (D.D.C. 2002)).
RJR argues that this Court lacks jurisdiction to order B&W Tobacco — or RJR on B&W Tobacco’s behalf — to broadcast corrective action statements ontelevision on behalf of an entity that no longer exists and, therefore, that that portion of the Remedial Order is void. Consequently, according to RJR, since that portion of the Remedial Order is void, Rule 60(b)(4) is applicable since any void judgment must be set aside. Significantly, Rule 60(b)(4) is the only section of Rule 60(b) that is not subject to any time limit. Muwekma Tribe, 206 F. Supp. 2d at 3.
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RJR’s argument addresses deals with the merits of the relief order, not this Court’s jurisdiction. In Northwest Airlines, Inc. v. County of Kent, Mich., 510 U.S. 355, 365 (1994), the Supreme Court stated clearly that “[t]he question whether a federal statute creates a claim for relief is not jurisdictional.”
In Steele Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998), the Supreme Court, per Justice Scalia, noted that
It is firmly established in our cases that the absence of a valid (as opposed to arguable) cause of action does not implicate subject­ matter jurisdiction, i.e., the courts’ statutory or constitutional power to adjudicate the case.

Id. at 89 (emphasis in original).

Justice Scalia reiterated what has long been established:

Without jurisdiction the court cannot proceed at all in any case. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the case.

Id. at 94.

As recently as 2010, in Morrison v. National Australia Bank, Ltd., 130 S.Ct. 2869, 2877 (2010), the Supreme Court again ruled that “[s]ubject matter jurisdiction . . . refers to a tribunal’s power to hear a case” and, therefore, subject matter jurisdiction “presents an issue quite separate from the question whether the allegations the plaintiff makes entitle him [or her] to relief.” Not only

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has the Supreme Court never abandoned or even questioned the existence of these principles, it has restated their continuing applicability. 1 See Arbaugh v. Y&H Corp., 546 U.S. 500, 514-515 (2010). There can be no question that this Court had jurisdiction when it issued its 2006 Remedial
Order. Therefore, the corrective action statements included in that Order are not void. Finally, since the statements are not void under Rule 60(b)(4) and the Court has already ruled that Defendants have waived their arguments under their alternative ground for relief, Rule 60(b)(6), the Defendants have no other avenue for reconsideration — at this late date — of overturning the Court’s injunction ordering B&W Tobacco to air one television spot per week of the corrective action statements.
In short, RJR’s attempt to turn its merits argument into a jurisdictional argument so that it can succeed under Rule 60(b)(4) fails, and its Motion shall be denied.

May 28, 2015
Copies via ECF to all counsel of record

1 Observing that jurisdiction “is a word of many, too many meanings,” Justice Ginsburg admitted that the Supreme Court itself, “no less than other courts, has sometimes been profligate in its use of the term. Id. at 510.

She also reiterated that “subject matter jurisdiction in federal-question cases is sometimes erroneously conflated with aplaintiff s need and ability to prove the defendant bound by federal law asserted as the predicate for relief — a merits-related determination.” Id. at 511.

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