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SAMPLE NINTH CIRCUIT BRIEF
The following is a sample brief to the Ninth Circuit Court of Appeals
drafted by On-Point Paralegal Services, LLC. The parties names, docket numbers
and other personal information has been omitted. We have done our best to
preserve the formatting of the brief when converting it to html code for
display on the Internet.
STATEMENT REGARDING TYPE SIZE AND STYLE I certify that this brief complies with the type volume limitation set forth in F.R.App.P. 32(a)(7)(B) because it contains less than 14,000 words, not including parts of the brief exempted by F.R.App.P. 32(a)(7)(B)(iii). This brief also complies with the typeface requirements of F.R.App.P. 32(a)(6), because this brief has been prepared in a proportionally spaced typeface using Microsoft Word in 14 point Times New Roman. SSTATEMENT REGARDING ORAL ARGUMENT Defendants respectfully request oral argument. STATEMENT OF RELATED CASES No related cases are pending and there have been no previous appeals concerning this matter.
STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION The court below had jurisdiction to entertain this adversary action relating
to a bankruptcy proceeding pursuant to 28 U.S.C. §1334 et seq. The
Ninth Circuit Court of Appeals has jurisdiction to entertain this appeal
pursuant to 28 U.S.C. §1291. CORPORATE DISCLOSURE STATEMENT Pursuant to F.R.A.P. 26.1 and 28(a)(1), the following persons and entities have an interest, financial or otherwise, in the outcome of this litigation: Defendants, defendants' attorneys and plaintiffs. STATEMENT OF ISSUES PRESENTED FOR REVIEW
STATEMENT OF THE CASE Defendant XXXXXXXXXXX is a bail bondswoman by trade. Her company (which is not incorporated) is Defendant XXXXXXXXXXX Bail Bond Company. The issue that defendants raise on this appeal concerns the fact that plaintiff filed a lawsuit against defendants in the State of Texas alleging breach of contract. Defendants filed for bankruptcy at that time and in response plaintiff changed its cause of action in Texas from breach of contract, which is dischargeable, to fraud, which is non-dischargeable.Defendant cannot afford to order transcripts in this case. STATEMENT OF THE ARGUMENT The bankruptcy court below erred by allowing plaintiff to allege fraud in the adversary action whereas it has alleged breach of contract in the State of Texas. Plaintiff should have been barred from doing so pursuant to principles of res judicata and issue preclusion. STATEMENT OF THE STANDARD OF REVIEW The standard of review is de novo in appeals raising issues pertaining to res judicata. "The standard of review for res judicata determinations is de novo." E & J Gallo Winery vs. Gallo Cattle Co., 967 F.2d 1280, 1287 (9th Cir. 1992). LEGAL ARGUMENT
Principles of res judicata and issue preclusion are well-established in the Ninth Circuit Court of Appeals. The doctrine of res judicata includes both claim preclusion and issue preclusion. Robi vs. Five Platters, Inc., 838 F.2d 318, 321 (9th Cir. 1988). The doctrine of issue preclusion prevents the relitigation of issues that were actually litigated and necessarily decided in a prior proceeding. Id. at 322, quoting Segal vs. American Tel. & Tel. Co., 606 F.2d 842, 845 (9th Cir. 1979). In the case at bar, plaintiff was already litigating against defendants
in the State of Texas where plaintiff was alleging breach of contract.
Thereafter, defendants filed for Chapter 7 bankruptcy in the State of
California and plaintiff responded by amending its complaint to change
its cause of action from breach of contract to fraud. Congress has set forth at 11 U.S.C.A. §523 et seq. the issues and
reasons that may be used to deny a Chapter 7 debtor a discharge. Judgments
and debts related to breach of contract are not one of the issues or reasons
set forth in that statute, but fraud is. See 11 U.S.C.A. §523(a)(4).
Plaintiff should not be permitted to allege one set of facts and issues
in one jurisdiction, and then litigate another set of facts and issues
in another jurisdiction. It is fundamentally unfair. The doctrine of judicial estoppel is another reason that the court should not allow the plaintiff to allege breach of contract in one jurisdiction and fraud in another. The doctrine of judicial estoppel, not to be confused with the doctrine of res judicata or collateral estoppel, prevents a party from successfully asserting one position to its own advantage, obtaining relief from a court based on that position, and then subsequently assuming a contradictory position for its further advantage. Judicial estoppel prohibits a party from playing "fast and loose" with the judicial system. In re Metro Communications, Inc., 115 B.R. 849, 856 (Bankr.W.D.Pa.1990); In re Gaye-Joy Corp., Inc., 84 B.R. 235, 237 (Bankr.M.D.Fla.1988) (observing that the doctrine of judicial estoppel prevents a party from playing "fast and loose" with the courts and holding that individual principals were judicially estopped from asserting that corporate debtor owned horses where they had successfully claimed personal ownership in related proceeding in federal district court). Put bluntly, a party may not be allowed to successfully assert one position, and prevail with the court, and then take a contrary position that better serves its current motives. See Bregman v. Alderman, 955 F.2d 660, 664 n. 3 (11th Cir.1992) (observing that judicial estoppel prevents party from asserting proposition in present proceeding due to having taken contrary position previously). In re Woolley's Parkway Center, Inc.,
Defendants respectfully submit that plaintiff is playing "fast and loose" with the courts by alleging one thing in Texas state court, and another thing in the United States Bankruptcy Court located in the State of California. CONCLUSION This Honorable Court should dismiss plaintiff's adversary complaint against
defendants.
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CERTIFICATION OF SERVICE This is to certify that I, XXXXXXXXXXX, Esq., served defendant's
brief and appendix upon the Clerk of the United States Court of Appeals
for the Sixth Circuit and the Plaintiff on _____________________, 2005,
via Certified Mail Return Receipt Requested.
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