[00:00:01] Speaker 00: Thank you very much, Judge. [00:00:02] Speaker 00: May it please the court, opposing counsel. [00:00:05] Speaker 00: Good morning, Your Honors. [00:00:06] Speaker 00: My name is Dan Cannon, and I am privileged to represent the plaintiff, Adrian Jensen, in this case. [00:00:11] Speaker 00: I would aspirationally like to ask for three minutes in rebuttal. [00:00:15] Speaker 00: And at the outset, I want to underscore the difference between this case and any case ever decided by a federal appellate court on res judicata grounds. [00:00:23] Speaker 00: Plaintiff was assaulted in five states, including Arizona. [00:00:27] Speaker 00: The Arizona statute of limitations is still alive today. [00:00:30] Speaker 03: No court has- Why didn't you file in Arizona? [00:00:33] Speaker 00: The case was filed in Missouri because that is the region in which most of the evidence and witnesses were. [00:00:39] Speaker 00: And as I said, this is a complex case that involves five different states. [00:00:46] Speaker 00: That's ultimately the forum that was selected to get around the additional Rule 12 problems that might obtain here, Judge, for reasons of personal jurisdiction and reasons of venue. [00:00:59] Speaker 00: But there was a case law. [00:01:02] Speaker 04: I have one question about that. [00:01:06] Speaker 04: Could the Arizona claims have been litigated? [00:01:10] Speaker 04: in Missouri under Missouri law and procedure? [00:01:16] Speaker 00: No, Your Honor. [00:01:16] Speaker 00: According to the Missouri's borrowing statute, it appears as though the Arizona claims could not have been litigated there. [00:01:25] Speaker 00: And to the extent that the Kansas court considered the Arizona claims, it was only to say that we're not going to pull those in under the Missouri borrowing statute and that the Arizona statute of limitations has not yet lapsed. [00:01:40] Speaker 00: And I think that it's helpful to start, even though uncomfortable for me, it's helpful to start by examining the worst case scenario for plaintiff here, assuming everything my friend on the other side here says is true, which is all of plaintiff's claims from all five states were a monolith. [00:01:59] Speaker 00: They were required to be brought in one forum and in one action. [00:02:03] Speaker 00: plaintiff picked the wrong forum she selected missouri and she gets one shot at it and one shot only and missouri law happens to say not only that is this is a statute of limitations question it seems in your reply brief you focus mostly on the unfairness question and you know [00:02:23] Speaker 02: I agree what's alleged, and I guess he's been convicted, that happened to Ms. [00:02:29] Speaker 02: Jensen is horrific and should never happen to any other person ever. [00:02:34] Speaker 02: But my concern is that the lawsuit was brought in Missouri, transfer to Kansas was consented to by Ms. [00:02:43] Speaker 02: Jensen, and then it was litigated there for two years. [00:02:47] Speaker 02: All the discovery through summary judgment got an adverse ruling which was not appealed [00:02:54] Speaker 02: And then the suit is brought in Arizona. [00:02:56] Speaker 02: So just with all of that history, despite, I certainly hear your point. [00:03:01] Speaker 02: We definitely want child sexual assault victims to be able to litigate their claims and have a little more leeway as a lot of the statutes show that it takes time to process and come. [00:03:12] Speaker 02: But with that history, how can we find unfairness? [00:03:15] Speaker 00: because no court has ever reached the central issue of USTA's negligence. [00:03:21] Speaker 00: And I think we'd be talking, we'd be having a very different conversation. [00:03:24] Speaker 00: In fact, we probably would not even be having this conversation if any court had ever ruled on the central issue of USTA's negligence. [00:03:31] Speaker 00: The only ruling that we have from the Kansas court is that three statutes of limitations had been blown. [00:03:38] Speaker 00: So again, if we assume the worst possible outcome for the plaintiff is that everything had to be brought in that Missouri action and consolidated into that one claim, and Missouri law says, we don't want our statute of limitations dismissals. [00:03:53] Speaker 00: We want those to bar actions in any other state now and forever. [00:03:57] Speaker 03: So why didn't you appeal the District of Kansas summary judgment order that Judge Ko referenced? [00:04:03] Speaker 00: Because it would have been futile to appeal on the grounds of the Arizona claim itself. [00:04:09] Speaker 00: First of all, there was nothing to appeal. [00:04:11] Speaker 02: But you could have appealed the finding of where the cause of action originated, right? [00:04:16] Speaker 00: I don't think that, no, Your Honor. [00:04:19] Speaker 02: But there was a finding made by the district court in Kansas as to that question, right? [00:04:23] Speaker 02: So that issue could have been appealed, right? [00:04:25] Speaker 00: That the claim did not originate in Arizona was the finding. [00:04:29] Speaker 00: And so our thinking was, we bring the claim in Arizona. [00:04:33] Speaker 00: And I think we're justified in doing so because of case law that exists that says the second case goes forward, case law from this circuit. [00:04:43] Speaker 00: uh... and every other circuit and in fact every other circuit court to ever decide an issue of whether an F-1 statute of limitations dismissal should bar an F-2 action where a statute of limitations is still alive has allowed the F-2 action to go forward and that is based on federal common law principles of fairness not on the originating states can i ask you though in the complaint it just asserted a negligence claim it didn't say negligence under [00:05:12] Speaker 02: Kansas law or Missouri law or Nevada law or Arizona law, correct? [00:05:17] Speaker 00: That's correct, Your Honor. [00:05:19] Speaker 00: And that's what makes this, has led to the astounding procedural complexity that we find ourselves with today. [00:05:25] Speaker 00: But again, backing up to plaintiff's worst case, plaintiff's worst day, all of this stuff was required to be brought in one action. [00:05:34] Speaker 00: We picked the wrong place because Missouri says we're going to apply our laws extra-territorially. [00:05:39] Speaker 00: Even so, based on federal common law principles of fairness, [00:05:44] Speaker 00: this claim should survive in the Arizona court. [00:05:47] Speaker 00: And that's the approach mandated by CEMTECH. [00:05:50] Speaker 00: And you can see it in action in every circuit court before and after CEMTECH. [00:05:55] Speaker 00: That's the Forsyth case, although in dicta and unpublished from this court saying F2 actions. [00:06:00] Speaker 02: Which state do you think had? [00:06:02] Speaker 02: the most relationship to what happened in the parties. [00:06:05] Speaker 02: You kind of sort of conceded that it was probably Missouri. [00:06:07] Speaker 02: That's where the people were, that's where the evidence was. [00:06:10] Speaker 02: So under conflict of laws, don't we look at which jurisdiction had the most significant relationship? [00:06:17] Speaker 02: to the, you know, the occurrences and the parties and why wouldn't that have been Missouri? [00:06:22] Speaker 02: Which, in a way, seems like you kind of conceded when you chose to file there. [00:06:26] Speaker 02: I don't know if you were the original counsel who filed there. [00:06:28] Speaker 00: No, I was not, Your Honor. [00:06:29] Speaker 00: Okay, but counsel for Ms. [00:06:30] Speaker 02: Jensen. [00:06:31] Speaker 00: I know enough about it. [00:06:32] Speaker 00: I mean, I think it's a difficult question because, and this case is quite unlike any other case to come before a federal appellate court, [00:06:38] Speaker 00: because all of the other F1 to F2 cases that you look at around the country involve some contract dispute that happens in New England, and then we're trying to decide, well, where did the claim arise? [00:06:49] Speaker 03: Was there any issue whether in picking a venue that maybe not all the other acts would come in? [00:06:59] Speaker 00: Not to my knowledge, Your Honor. [00:07:06] Speaker 00: I don't think so. [00:07:07] Speaker 00: I want to make sure I answer the question. [00:07:07] Speaker 03: Because even though, I prosecuted these kinds of crimes back in the day, and even though having a discussion that some of the acts were worse than other acts. [00:07:20] Speaker 03: that I mean from the standpoint, no, children should not be subject to any of them necessarily. [00:07:28] Speaker 03: But there's some of the acts that when viewed in light of the worst acts, there seems to, they look different. [00:07:38] Speaker 03: But let's say you picked one of the places, you know, he obviously was a typical predator in that he sort of escalated his behavior in terms of starting out sort of [00:07:50] Speaker 03: a little more questionably, if you only had that one ax, someone might say, oh, well, I was massaging the shoulders because of X, Y, and Z, or the kiss was different than what. [00:08:03] Speaker 03: But when you get down to the ax where they allege things like touching the breasts and the vaginal area and penetrating, that's not looking so good. [00:08:15] Speaker 03: But I mean, were you planning wherever you went that all of the acts would come in, or were you thinking you could be limited by locality? [00:08:25] Speaker 00: No, I think that the intention was to bring one action with all of the claims in that action. [00:08:33] Speaker 00: But with the understanding that federal case law, including case law from this circuit, has always said [00:08:39] Speaker 00: that an F2 case where there's a still living statute of limitations is allowed to go forward. [00:08:46] Speaker 00: Every court, every federal court has followed the traditional rule when it comes to that. [00:08:51] Speaker 00: But I want to make sure that I answer Judge Koh's question on where is the worst of the worst that happened here. [00:08:59] Speaker 00: This is complex because you have [00:09:01] Speaker 00: five different states and torts occurring in all five of those states. [00:09:05] Speaker 00: So it makes it quite unlike a case like Daewoo where you have a contract dispute or even Bendis from Missouri where you have the party saying, well this arose in New York and now we're just trying to find a good place [00:09:17] Speaker 00: to put the case, you know, someplace that's most favorable to the plaintiff. [00:09:21] Speaker 00: That's not what occurred here. [00:09:23] Speaker 00: She was assaulted in Arizona. [00:09:25] Speaker 00: The worst of the assaults occurred in Arizona, and the statute of limitations is alive today in Arizona. [00:09:33] Speaker 00: So she should be able to bring a claim in Arizona. [00:09:35] Speaker 03: Well, when we look at fairness, and I, you know, I agree with Judge Cohen. [00:09:39] Speaker 03: I don't think you'll find disagreement from anyone. [00:09:41] Speaker 03: Of course, we don't want people that, I mean, it's terrible what [00:09:45] Speaker 03: the victim or if you want to say survivor or whatever language you want to use, what happened here is bad. [00:09:53] Speaker 03: But when all of this starts on the fairness side of it, the last act happened how long ago? [00:10:04] Speaker 00: The last act was in 2010, I believe, Your Honor. [00:10:08] Speaker 03: Okay. [00:10:09] Speaker 03: So when you first file is what year? [00:10:12] Speaker 00: 2020. [00:10:15] Speaker 03: Okay, so we're basically talking about 10 years. [00:10:18] Speaker 03: So when you apply the fairness doctrine is part of that, and I know that there's many reasons why people don't report things that have happened. [00:10:26] Speaker 03: And here, I think as Judge Coe said, we can assume there's truth to something because this individual was convicted of something and got, I think, what, 78 months or something and was deported. [00:10:40] Speaker 03: So we can assume that. [00:10:42] Speaker 03: But is fairness, do we have to look at when you have 10 years that happened there, and obviously if they want to defend, they're not defending the perpetrator here. [00:10:54] Speaker 03: They're being sued as someone that should have been supervising and making sure that coaches didn't engage in this behavior. [00:11:03] Speaker 03: Is part of the fairness calculation that with that amount of time, [00:11:07] Speaker 03: it would be very hard for them to defend themselves. [00:11:11] Speaker 00: I think it could be, Your Honor. [00:11:13] Speaker 03: I mean, because your argument of fairness, which is hard to say, is certainly emotional and certainly appealing that these sort of things, she suffered a lot. [00:11:27] Speaker 03: but them not being able to defend themselves as to what they knew or what they should have known or how they should have been handling coaches and minors, that whole thing. [00:11:40] Speaker 00: I certainly agree that fairness to the defendant is an issue here. [00:11:46] Speaker 00: But where you have a still living statute of limitations, Arizona has said, we want to regulate the conduct that happens within our borders. [00:11:54] Speaker 00: And my friend on the other side says that doesn't matter. [00:11:56] Speaker 00: That shouldn't matter to the federal courts at all, that the abuse occurred in Arizona. [00:12:01] Speaker 00: and that Arizona has a strongly stated public policy preference that says, we want to regulate this stuff. [00:12:07] Speaker 00: Not only do we want to regulate it, but we're going to give a retroactive statute of limitations to people who are abused. [00:12:13] Speaker 03: You're down to three minutes. [00:12:14] Speaker 04: If we don't have that, go ahead. [00:12:16] Speaker 04: I have a question. [00:12:17] Speaker 04: I do have a question on a slightly different issue, and that is whether the [00:12:27] Speaker 04: ruling under Missouri law in the Missouri action is procedural or substantive? [00:12:34] Speaker 04: And if the answer to that question is unclear under Missouri law, is this something that we should certify to the Missouri Supreme Court because it may [00:12:50] Speaker 04: Change the racially kind of analysis. [00:12:54] Speaker 00: I was, I was, I was afraid someone was going to pull me into an eerie vortex here, Judge. [00:12:59] Speaker 00: Two things about that. [00:13:03] Speaker 00: One is that I think our position is [00:13:06] Speaker 00: Principles of federal common law control this no matter what and if you conduct a proper fairness analysis under federal common law Regardless of what Missouri law says and we think Missouri law is actually in our favor and I'm glad to explain that but to the extent that Again, if we say Missouri law is totally against us here principles of federal common law fairness still apply and that involves looking at the second state's interests it involves looking at [00:13:36] Speaker 03: certification to the Missouri Supreme Court, did you? [00:13:39] Speaker 00: I think we have suggested that it could happen in our principal brief, Your Honor. [00:13:46] Speaker 04: I don't understand that to be required. [00:13:49] Speaker 04: I think that is in our discretion whenever we want to. [00:13:55] Speaker 00: I think ultimately federal common law controls, and so I do not think it's necessary. [00:14:03] Speaker 00: But I do think it is incumbent upon this district court sitting in diversity to look at the interests of the other state. [00:14:11] Speaker 00: And even if you disregard Arizona's interests, [00:14:16] Speaker 00: You know, the simple fact that this is an F2 action with a living statute of limitation, that there are no other remedies available to this plaintiff. [00:14:24] Speaker 00: If she loses in this court, she has nowhere else to bring this case. [00:14:29] Speaker 00: And that matters for fairness analysis, according to this court's opinion that was cited by the district court, which is Marine v. HEW from 1985. [00:14:37] Speaker 02: Can I ask you another question on the certification, which I'm open to considering? [00:14:43] Speaker 02: Is there any indication that the Missouri Supreme Court would not follow the Bendis decision of the Missouri Court of Appeal? [00:14:51] Speaker 00: Yes. [00:14:51] Speaker 02: Because that's what it would really come down to, right? [00:14:53] Speaker 00: Yes. [00:14:53] Speaker 02: Would they come with something different? [00:14:55] Speaker 02: What is that? [00:14:55] Speaker 00: The slew of cases from Missouri that we've cited, I believe it is in pages 32 to 36 of our brief, where if you even look at the intra system dismissals in Missouri from 1967 and before, up until present day, up until the Ziad case in 2021. [00:15:15] Speaker 02: But you would agree that Bendis is not in your favor. [00:15:18] Speaker 00: I don't think that Bendis is in our favor, but I think it's difficult to square Bendis with the rest of Missouri case law unless you analyze it as a matter of basic fairness. [00:15:29] Speaker 00: The Bendis plaintiffs had had three bites at the apple. [00:15:33] Speaker 00: by the time that that case came to the Missouri courts. [00:15:37] Speaker 00: That was number four, the Bendis case. [00:15:41] Speaker 00: And I think the court looked, it doesn't say this explicitly, but the court looks at it and says, you're done. [00:15:46] Speaker 00: You've had enough. [00:15:47] Speaker 00: You even had a trial on this. [00:15:49] Speaker 00: And you've had some play out of the substantive issues that attend this case, not just procedural bars. [00:15:57] Speaker 00: That's what sets Bendis apart from the other cases [00:16:01] Speaker 00: And I think Bendis, by the way, is an anomaly because it is the only case in federal or state courts that says that the F-2 action would be barred. [00:16:12] Speaker 00: But even if we assume the worst about the Bendis case, my point is that case cannot reach across state lines and totally abrogate any action that she might have in Arizona for an abuse that occurred in Arizona. [00:16:25] Speaker 00: Thank you. [00:16:27] Speaker 03: All right. [00:16:27] Speaker 03: We've taken you over, but I'll give you two minutes for rebuttal. [00:16:45] Speaker 03: Good morning. [00:16:46] Speaker 01: Good morning. [00:16:59] Speaker 01: May it please the court. [00:17:00] Speaker 01: My name is Heather Hatley and I am here on behalf of the United States Tennis Association. [00:17:04] Speaker 01: Thank you for entertaining these arguments today. [00:17:06] Speaker 01: It's an honor to be before you. [00:17:08] Speaker 01: To answer the court's question that they have presented to us in this case, yes, Missouri considers a summary judgment on statute of limitations ground to have a claim-proclusive effect. [00:17:18] Speaker 01: Under Missouri law, summary judgments always are on the merits and have claim-proclusive effect. [00:17:23] Speaker 03: Is that a Supreme Court case or is that an intermediate court? [00:17:27] Speaker 01: I believe it is cited throughout Missouri courts. [00:17:31] Speaker 01: There are many Missouri federal and state courts citing this proposition. [00:17:35] Speaker 01: I think it's also a proposition represented in the Restatement of Judgments, which has been adopted by Missouri. [00:17:41] Speaker 03: On the certification issue, I'm assuming that you're telling us that because you're arguing against certification. [00:17:50] Speaker 01: I think that, as Judge Graber said, that's in your all's discretion. [00:17:56] Speaker 01: So I'm not necessarily arguing against or for, but I don't think it's necessary, and I can explain why. [00:18:01] Speaker 01: In addition, under Missouri Supreme Court case law, once a statute of limitations has run, it creates a vested substantive right to be freed from suit in the defendant. [00:18:12] Speaker 01: In addition, so I guess the context here is there is not a case directly on point of all fours for this case, that's true. [00:18:20] Speaker 01: But there is a lot of guidance in Missouri to tell us that this claim should be barred. [00:18:26] Speaker 02: A lot of smoke? [00:18:27] Speaker 01: I don't think it's actually a lot of smoke. [00:18:28] Speaker 01: I think there's fire. [00:18:31] Speaker 01: If we look to Bendis, which we've discussed here, Bendis foresaw this exact situation and in fact went through and said we would bar a claim like this. [00:18:40] Speaker 01: They could foresee a defendant with a national presence similar to USTA. [00:18:44] Speaker 01: and a plaintiff could go around filing cases in states all around the country to find a statute of limitations that stuck under a borrowing statute. [00:18:52] Speaker 01: This also brings me to a point brought up by Judge Koh when discussing a conflict of law issue. [00:18:58] Speaker 01: Missouri's borrowing statute removes any conflict or choice of law issue. [00:19:02] Speaker 01: It is a pure claim of cruel analysis. [00:19:05] Speaker 01: So plaintiff filed their suit in Missouri and also to address another point brought up by Judge Koh. [00:19:10] Speaker 03: If plaintiff had filed in Arizona, [00:19:15] Speaker 03: Would plaintiff have had a completely different situation? [00:19:19] Speaker 01: Perhaps. [00:19:20] Speaker 01: We have not analyzed Arizona's claim of cruel analysis, and that's really what controls in this case. [00:19:26] Speaker 01: Another issue here is that while the case was filed in Missouri originally, there was really no connection to Missouri in this case other than the defendant abuser, not a defendant, but the abuser in this case was a Missouri resident at the time of the abuse. [00:19:42] Speaker 01: Kansas City, Missouri is a border. [00:19:44] Speaker 03: Though everyone agreeing to the transfer is my understanding. [00:19:47] Speaker 01: And it would be our position that actually at the time of the abuse, Ms. [00:19:51] Speaker 01: Jensen was a Kansas resident. [00:19:52] Speaker 01: So if we were going down some choice of law analysis, which isn't really relevant, it really was only relevant for the transfer purposes. [00:19:57] Speaker 03: Can you slow down a little? [00:19:59] Speaker 01: I can't. [00:19:59] Speaker 01: I know it's a problem I have. [00:20:00] Speaker 01: I go too fast. [00:20:01] Speaker 04: I have a question that I asked of opposing counsel as well. [00:20:09] Speaker 04: If there had been no statute of limitations problem, [00:20:14] Speaker 04: Could the Arizona claim have been litigated in Missouri? [00:20:20] Speaker 04: And his answer was, no, it could not. [00:20:25] Speaker 04: And I'm interested in your answer to that question. [00:20:28] Speaker 01: I think it absolutely could if there was no statute of limitations issue. [00:20:31] Speaker 01: And it's very clear that the intent, and I think it was actually conceded by my friend, [00:20:35] Speaker 01: That that was the intent to include both complaints So the petition that was originally filed in Jackson County and then the amended complaint in district of Kansas and they're not going slower Okay, I'm sorry judge court reporters always complained about me, too. [00:20:49] Speaker 01: So I get it all the time. [00:20:51] Speaker 01: So I apologize But the exact same claims the abuse alleged in Kansas, Missouri, Alabama, Nevada, Arizona [00:21:00] Speaker 01: were in all relevant petitions or complaints in every court. [00:21:05] Speaker 01: That was obviously intent to litigate those things. [00:21:07] Speaker 01: And as a matter of fact, we did litigate the Arizona claim. [00:21:11] Speaker 01: It was brought up on a motion to dismiss. [00:21:13] Speaker 01: It was raised in summary judgment. [00:21:14] Speaker 01: We conducted extensive discovery on the Arizona claim. [00:21:18] Speaker 01: So the idea that this claim wasn't brought or couldn't be brought or wasn't adjudicated is against the very clear facts of this case. [00:21:27] Speaker 01: If that answers your question, Judge, I'm not, hopefully. [00:21:31] Speaker 02: But you would agree, it's unclear whether Missouri law would apply its claim preclusive effect to the first action in court outside of Missouri. [00:21:39] Speaker 01: So I disagree, actually. [00:21:41] Speaker 02: Why? [00:21:42] Speaker 01: So I disagree for various reasons that I've stated previously. [00:21:45] Speaker 01: For instance, summary judgments are always on the merit and have claim preclusive effect. [00:21:49] Speaker 01: Missouri has also, as I stated, adopted the Restatement of Judgment, Section 87, which is actually set up. [00:21:53] Speaker 02: But that's a different question, right, than whether it would apply its law in a court outside of Missouri. [00:21:58] Speaker 01: So I don't think it is. [00:21:59] Speaker 01: Under Section 87, it essentially says, and I can pull up the exact language, but my reading of it is if it's barred in Missouri, it's also barred in other jurisdictions because it came to a final judgment. [00:22:10] Speaker 01: What are you relying on? [00:22:11] Speaker 02: Section 87. [00:22:12] Speaker 02: But what case says what you're contending? [00:22:15] Speaker 02: That is, claim preclusive effect. [00:22:18] Speaker 02: to basically shut down a first action would apply outside of a court outside a court outside of Missouri. [00:22:25] Speaker 01: And I understand that point. [00:22:27] Speaker 01: So I think that there is not a Missouri Supreme Court case. [00:22:30] Speaker 01: directly on point explicitly stating that. [00:22:32] Speaker 01: But we do know the various points that we brought up, that there's a vested substantive right to be free from suit in the defendant. [00:22:38] Speaker 01: Missouri has stated interests in fostering reliance on judicial action, preventing inconsistent decisions, preventing forum shopping, protecting adversaries. [00:22:48] Speaker 02: I would agree that that question is dispositive here, right? [00:22:51] Speaker 01: That is dispositive. [00:22:52] Speaker 01: And so to answer, I guess to answer your question better, when you look at Daywoo, the dissent actually, for a clear [00:23:00] Speaker 01: citation of their statement which has been adopted by Missouri indicates that when a judgment bars a claim in the state in which it's rendered or the jurisdiction which it's rendered it also bars claims. [00:23:11] Speaker 01: outside of that jurisdiction. [00:23:13] Speaker 01: And the real critical point, I think, in this case is that this was a judgment. [00:23:17] Speaker 01: This was a summary judgment. [00:23:19] Speaker 01: This was not a dismissal. [00:23:20] Speaker 01: This was not a shotgun reaction, as you pointed out, Judge, of you filed a motion to dismiss, and boom, you're out of here on statute of limitations. [00:23:29] Speaker 01: This was a fully litigated case, and it, by its nature, included every piece of abuse that we're here talking about today. [00:23:36] Speaker 01: And in fact, Missouri's res judicata analysis, I think, itself suggests that it would apply outside of Missouri. [00:23:41] Speaker 01: And I think Bendis itself states that. [00:23:42] Speaker 03: Well, I think, here, I think your friend on the other side said it would have been, we asked why he didn't appeal to summer judgment in Kansas. [00:23:50] Speaker 03: He said it would have been futile. [00:23:52] Speaker 03: Could we hear your response on that? [00:23:54] Speaker 01: Sure. [00:23:55] Speaker 01: I don't know how the Tenth Circuit would have reviewed that or found it to be futile at all. [00:24:00] Speaker 01: But if there is a question about [00:24:02] Speaker 01: which law applied, which extensive discovery was done on, and under Missouri's law, the choice of forum was plaintiffs. [00:24:10] Speaker 01: Missouri was where they chose to file their claim. [00:24:12] Speaker 01: By doing that, they availed themselves of the laws of Missouri and assumed that their claims would be controlled by Missouri law, presumably. [00:24:17] Speaker 01: That's what someone does when they file a suit in a state. [00:24:22] Speaker 01: The claim preclusive effect of this judgment in the district of Kansas is controlled by Missouri law under SimTech. [00:24:29] Speaker 01: I think I'm not answering your question. [00:24:34] Speaker 03: No. [00:24:34] Speaker 03: So if he had appealed this summary judgment, how could that have changed things? [00:24:41] Speaker 01: Well, again, I can't predict what the 10th circuit would do, but they could have challenged the claim accrual analysis. [00:24:45] Speaker 01: They could have challenged that Missouri law applies. [00:24:48] Speaker 01: They could have argued a different state's law applied. [00:24:50] Speaker 01: to control this. [00:24:51] Speaker 01: They also could have furthered their argument, which was fully litigated and briefed and rejected by the District of Kansas that the Arizona statute of limitations in fact applied to the claim. [00:25:00] Speaker 01: They could have said, [00:25:01] Speaker 01: We think that there's a separate Arizona claim. [00:25:04] Speaker 01: So the court should have maybe granted summary judgment in part and denied it in part. [00:25:08] Speaker 01: So there was a lot that could have done here, but didn't do. [00:25:10] Speaker 01: And there's plenty of case law from this circuit and across the country that when you fail to appeal something, you're stuck with the result of that. [00:25:17] Speaker 01: And so what's really before this court is the claim preclusive effect of that judgment in Kansas. [00:25:22] Speaker 03: Do you know how long certification takes in Missouri? [00:25:27] Speaker 01: I do not know. [00:25:28] Speaker 03: Have you had any experience with that? [00:25:30] Speaker 01: I do not know how long that takes. [00:25:31] Speaker 03: Some states are really fast. [00:25:33] Speaker 03: Like, for example, because I've done programs teaching, California takes quite a while. [00:25:40] Speaker 03: Texas, for example, they take all certifications basically. [00:25:45] Speaker 03: and they put it at the top of the list and give people an answer quickly. [00:25:52] Speaker 01: So I don't have an answer to that question, but I also don't know that I think certification is necessary. [00:25:57] Speaker 01: If we look at BNDIS, as I mentioned earlier, this exact situation was contemplated. [00:26:02] Speaker 01: by the court, and essentially said, avoidance of vexation of multiple lawsuits is precisely the purpose of res judicata doctrine. [00:26:09] Speaker 01: And it talks about suits in other states, in other jurisdictions, against the same defendant that's already had a judgment. [00:26:18] Speaker 04: What do we make of the Missouri law that says that when a cause of action originates in a state other than Missouri, Missouri applies that foreign state's statute of limitations? [00:26:34] Speaker 01: So if we're talking about Missouri's borrowing statute, it only applies when the statute is shorter than Missouri's. [00:26:43] Speaker 01: So here, it applied because Nevada had a shorter statute of limitation than Missouri did. [00:26:48] Speaker 01: as did Kansas and Alabama. [00:26:53] Speaker 03: And Arizona's longer. [00:26:54] Speaker 01: Arizona's longer as was Missouri's. [00:26:57] Speaker 03: So we talked about fairness and so maybe you should respond to why that shouldn't save them. [00:27:08] Speaker 01: So fairness, I believe, is a two-way street. [00:27:10] Speaker 01: I would agree with the court. [00:27:12] Speaker 01: What happened to Ms. [00:27:12] Speaker 01: Jensen is egregious. [00:27:15] Speaker 01: No one should have to go through that. [00:27:16] Speaker 01: And I understand that. [00:27:18] Speaker 01: But this case was fully litigated. [00:27:21] Speaker 01: It was taken to a summary judgment. [00:27:23] Speaker 01: There was nothing ever precluding anyone from moving to dismiss this case. [00:27:27] Speaker 01: and refiling somewhere where they were certain the statute had not run. [00:27:30] Speaker 04: We gave notice and a motion to dismiss that we believed that the statute wasn't fully litigated in the sense of examining what the abuser did and what the USTA's obligations were. [00:27:46] Speaker 01: So I would disagree with, or I couldn't tell if you said it wasn't or if it was. [00:27:50] Speaker 01: But it was, I believe, fully litigated. [00:27:51] Speaker 01: So this case went on for the better part of two years. [00:27:54] Speaker 01: Extensive discovery was had. [00:27:55] Speaker 01: Thousands of documents were produced. [00:27:57] Speaker 01: We produced two corporate representatives who sat for eight hours to discuss USTA policies and procedures, tournaments, those types of things. [00:28:06] Speaker 01: In addition, it's, I think, very noteworthy that the District of Kansas actually offered plaintiff additional time to conduct further discovery [00:28:14] Speaker 01: on the issues of duty, statute of limitations, and what law would apply. [00:28:19] Speaker 01: Plaintiff declined that invitation. [00:28:22] Speaker 01: The idea that it's unfair now that the door has been closed to them after they had an adverse judgment against them, that necessarily indicates that all issues and facts were litigated. [00:28:35] Speaker 01: This goes right back to Missouri's claim [00:28:38] Speaker 01: splitting, anti-claim splitting doctrine, which is part of the res judicata doctrine. [00:28:42] Speaker 01: So you can't say, I have an Alabama claim, a Kansas claim, a Missouri claim, an Arizona claim, and have five lawsuits or however many lawsuits. [00:28:50] Speaker 03: Well, the summary judgment, I think what Judge Graber's getting at, did the summary judgment say that USTA had no duty? [00:29:00] Speaker 01: They did not. [00:29:02] Speaker 01: They didn't need to reach that issue. [00:29:04] Speaker 01: But you said there was discovery? [00:29:06] Speaker 01: There was extensive discovery. [00:29:07] Speaker 01: There were several discovery disputes that the court was involved in on all of these issues. [00:29:12] Speaker 01: And duty, statute of limitation, and choice of law were the topics of discovery. [00:29:16] Speaker 01: Because at the initial conference with the court, our Rule 16 conference, we told the court we believe there are dispositive issues in this case. [00:29:23] Speaker 01: So the court ordered that we conduct bifurcated discovery on those issues, duty, statute of limitations, and what choice of law would apply. [00:29:31] Speaker 01: Another aspect here is that, as I mentioned, the Missouri Supreme Court has said that when a statute of limitations runs, it creates a vested substantive right in the defendant to be free from suit. [00:29:41] Speaker 01: Therefore, when we're talking about claim preclusive effect, statute of limitations becomes a substantive matter. [00:29:47] Speaker 01: If we were talking about choice of law, it would be a procedural matter. [00:29:50] Speaker 01: But here, this has become a substantive issue. [00:29:53] Speaker 02: Can we talk about the unfairness prong here? [00:29:55] Speaker 02: Yes. [00:29:55] Speaker 02: Because it almost seems like because this abuser abused Ms. [00:30:01] Speaker 02: Jensen so many times in so many states, USTA is almost benefiting from that, which is a very [00:30:09] Speaker 02: odd consequence, right? [00:30:12] Speaker 02: I mean, why shouldn't we find that a victim of child sexual abuse, when Arizona provides a lengthy time to sue, should get a day in court on those claims? [00:30:26] Speaker 02: And it seems like she's almost being penalized for having been victimized in so many different locations over an extended period of time. [00:30:33] Speaker 01: Well, I don't think USDA is getting any benefit in this lawsuit or under these facts in this case. [00:30:39] Speaker 01: And certainly, it's USTA's position this was awful what happened to her. [00:30:44] Speaker 01: But it's also their position that they had nothing to do with this abuse. [00:30:47] Speaker 01: So Mr. Holt. [00:30:48] Speaker 04: If that question has never been decided by a court or by a jury, whether they were or were not responsible for better supervision or the other things that are being claimed here. [00:31:04] Speaker 04: So yeah, there's been a lot of litigation. [00:31:08] Speaker 04: the actual claim, no decision has ever been made as far as I can tell. [00:31:16] Speaker 01: So I think a decision has been made. [00:31:18] Speaker 01: The District of Kansas addressed this issue and said that Arizona law does not control this situation. [00:31:26] Speaker 01: While there was abuse that occurred in Arizona, it does not control here. [00:31:30] Speaker 01: And this again goes back to Res Judicata and Missouri's stated interests in their doctrine of Res Judicata. [00:31:36] Speaker 01: which fosters reliance on judicial action, preventing inconsistent decisions, which is essentially what would happen here. [00:31:44] Speaker 01: We have USTA not liable in one state, liable in another, presumably, if that's what we're proposing, which flies in the face of Missouri's anti-claim splitting statute, which says all foundational facts establish the cause of action. [00:31:57] Speaker 01: So the Arizona claim is undeniably part of the District of Kansas case. [00:32:03] Speaker 01: I think that's not a real, [00:32:06] Speaker 01: dispute in this case. [00:32:08] Speaker 01: And assuming, let's just go down the hypothetical, if it is some separate sort of claim, which we dispute, it was merged into this judgment. [00:32:16] Speaker 01: And the claim is barred by the District of Kansas. [00:32:18] Speaker 01: Again, this was litigated, brought to a summary judgment. [00:32:21] Speaker 01: This was not a knee jerks type of dismissal. [00:32:24] Speaker 01: This was a summary judgment. [00:32:26] Speaker 01: And judgments have finality. [00:32:31] Speaker 03: Any additional questions? [00:32:33] Speaker 03: No, thank you. [00:32:33] Speaker 03: All right. [00:32:34] Speaker 03: Thank you for your argument. [00:32:46] Speaker 00: Thank you, Your Honors. [00:32:48] Speaker 00: I want to pick back up by saying that the fairness analysis has never really been conducted according to the intent of Simtek and Daiwu. [00:33:00] Speaker 00: That didn't happen in the Arizona District Court. [00:33:04] Speaker 00: And I think before we start talking about bouncing this issue back over to the Missouri Supreme Court, [00:33:10] Speaker 00: I think, again, federal common law principles are what are going to control here. [00:33:16] Speaker 00: And when you look at what the federal courts have already said about what constitutes fairness, notably consistently- The case you rely on is unpublished and is not presidential, so how should we [00:33:30] Speaker 02: I can find ways that Zhang and Marino are distinguishable, because those the district courts actually made statements that I think the parties relied on. [00:33:38] Speaker 02: There was a different factual situation. [00:33:41] Speaker 02: So how can we rely on an unpublished decision? [00:33:44] Speaker 00: So there's no test for fairness. [00:33:47] Speaker 00: We know that there's a fairness requirement from SimTech itself, and from Daiwu, and from Zhang. [00:33:53] Speaker 00: But we don't know exactly what that entails, but you can piece it together based on, not just on the dicta from Forsyth, but in Zhang itself, that is a case in which the, that is a published case from 2003. [00:34:08] Speaker 00: It's post-Semtech. [00:34:09] Speaker 00: You've got the plaintiff bringing a claim in the Commonwealth Court. [00:34:13] Speaker 00: They say, no, that claim is time barred. [00:34:15] Speaker 00: She brings it back to the federal court and the federal court says, yeah, you're not gonna have any place else to bring these claims. [00:34:21] Speaker 00: So we're going to treat this as falling under the relation back doctrine and it falls in with your federal claims. [00:34:27] Speaker 00: I submit to you that is an even this case is even worse because if she loses this claim that is even still alive in Arizona today, she has no place else to bring it. [00:34:37] Speaker 00: And on that point, I'll note the Third Circuit's opinion in Chavez. [00:34:41] Speaker 00: Chavez is a very good case for us, even though it's from outside of this circuit, because it's everything terrible that you could possibly imagine in an F1 to F2 case. [00:34:51] Speaker 00: In fact, the court finds that the plaintiffs were forum shopping in that case. [00:34:55] Speaker 00: And you have a case that's brought in Texas, followed by a case that's brought in Louisiana. [00:35:00] Speaker 00: Both of those cases were held to be barred by the statute of limitations. [00:35:05] Speaker 00: But the Delaware courts and the Third Circuit looking at the Delaware decision says, because of fairness principles, because it really is a federal common law issue, but they say looking at Louisiana law, Louisiana says exceptional circumstances. [00:35:19] Speaker 00: Well, okay, this is an exceptional circumstance. [00:35:22] Speaker 00: Why? [00:35:22] Speaker 00: Because the plaintiff will have no place else to go and because this is a Byzantine procedural case, because it's procedurally complex. [00:35:31] Speaker 03: All right, unless my colleagues have questions, I've been quite permissive. [00:35:36] Speaker 03: So I'll ask you just to wrap up with your final words. [00:35:41] Speaker 03: Well, certainly. [00:35:42] Speaker 00: And I don't know how many final words you want to give me, Your Honor. [00:35:44] Speaker 03: Oh, about 15 seconds of final words. [00:35:46] Speaker 00: So I'll circle back to Dayu. [00:35:48] Speaker 03: Don't push it. [00:35:49] Speaker 03: I'm a mother, so don't push it. [00:35:50] Speaker 00: I will fully obey here, Judge. [00:35:55] Speaker 00: But I want to circle back to Daiwu, because under that case, this court says a corporation can file three lawsuits against a business partner, change the legal theory on the last one within a span of 10 years, and still not be dismissed under res judicata. [00:36:08] Speaker 00: We're asking for a young woman to be able to file a negligence claim in the jurisdiction where she was sexually assaulted and have someone say whether someone was negligent for that. [00:36:18] Speaker 00: That's all we want here. [00:36:19] Speaker 00: Thank you. [00:36:19] Speaker 03: All right, thank you both for your helpful argument in this matter. [00:36:22] Speaker 03: This case will stand submitted, and we will be in recess until tomorrow at 9 a.m. [00:36:30] Speaker 03: Madam Clerk, can I see you in the room?