James M. Concannon
Fall 2005 Conflict of Laws
Exam and Grading Answers
Conflict of Laws Examination
Four Hours
Saturday, December 10, 2005 -- 8:00 a.m.
Fall 2005
FINAL EXAMINATION
INSTRUCTIONS: Write LEGIBLYon only ONE SIDE of each blue book page. You may use the blank back pages to write inserts into your original answer. If you unintentionally violate this instruction, do not erase or re-write what you have already written.
You are expected to make pertinent alternative arguments even when one argument alone might be sufficient to dispose of the issue. ANSWERS MUST BE EXPLAINED TO RECEIVE SUBSTANTIAL CREDIT. Approximate time allocations are suggested for the question based upon a 3 ½ hour exam. However, you are free to take 4 hours to complete the exam. Points allocations will be in proportion to the time allotted.
You may use all class materials, class handouts, your notes and any outline that you participated in preparing. You may NOT use answers to previous examinations or outline materials prepared by others, nor may you use commercial outlines.
You must accept for purposes of the questions that the law of a particular state or of the federal government is what the question says it is and that each state mentioned follows the choice of law methodology the question says it does. In other words, answers such as "That's not what (e.g.) Texas law actually is" will not earn you credit and likely will cause you not to address the issues the question actually raises.
You should assume that each state mentioned in any question has BORROWING, TOLLING and NEW ACTION statutes like those in force in Kansas.
I. (Two Hours)
Dallas Texsun from Texas purchased a time share that permitted her to spend one month each year at a vacation villa in Puerto Villarta, Mexico. For the year 2005, she selected the month of March for her vacation. While in Puerto Villarta, she relied upon local transportation to visit various tourist sites. In mid-month, she boarded a bus operated by Mexican National Bus Lines, Inc. (MNB), a private company incorporated in Mexico, to take her from Puerto Villarta to the site of ancient ruins in a nearby community. While en route, the bus tipped over a cliff, severely injuring passengers, including Dallas Texsun. Texsun was hospitalized for two months in Mexico before she was able to return to her home in Texas for further rehabilitation.
Texsun filed a lawsuit in the Dallas County District Court in Texas, seeking to recover $1,425,000 for her injuries from Bridgestone/Firestone, Inc. (BF), alleging that the cause of the bus crash was the explosion of a model F-150 tire manufactured by BF that was defectively designed in a manner that could cause it to explode when the pressure in the tire fell below 21 pounds per square inch. BF is incorporated in Delaware and has its principal place of business in Oregon. However, it has manufacturing plants and regional distribution centers in a number of states and countries, including Texas and Mexico. The model F-150 tire was designed at BF's corporate offices in Oregon and the serial number on a remnant of exploded tire confirms that it was produced in 1991 at BF's plant in Texas. It was sold that year to a local bus company in Baton Rouge, Louisiana, for use as a replacement whenever an original tire on the bus wore out. When the Louisiana bus company replaced its bus fleet in 1999, MNB purchased its older buses and the model F-150 tire was on one of them. BF rejects any claim that the model F-150 tire was defectively designed and believes the cause of the tire's failure was previous misuse of the tire by MNB and MNB's failure to inspect the tire and properly inflate it before the trip. It further contends that Dallas would not have been injured, or would have been much less severely injured if she had used the seat belt that was available on her seat on the bus.
BF removes the Texas state court action to the appropriate United States District Court of Texas (assume removal is proper). BF then files a motion to dismiss based upon the common law doctrine of forum non conveniens, claiming a court in Mexico would be a significantly more convenient forum [Note: transfer to Mexico is not possible under 28 U.S.C. 1404(a) because it permits transfer only to another United States District Court]. You will remember from Civil Procedure that one of the factors a court considered in ruling on a forum non conveniens motion is whether the court would have to apply the law of a jurisdiction other than the forum if the action is not dismissed. The District Judge determines that the following differences exist in the laws of the various jurisdictions that are involved: (a) the laws of Mexico and Oregon seek to encourage personal responsibility and reduce the overall costs of injuries by treating an injured party's failure to use an available seat belt as contributory negligence; while Texas requires those who are injured to mitigate damages after injury, it does not treat failure to use an available seat belt as contributory negligence, because individuals should be able to conduct their activities as they wish without guard against the fault of wrongdoers; (b) in tort cases in Mexico, parties may recover only compensatory damages but may not recover damages for pain and suffering; under Texas and Oregon law, damages may be recovered for pain and suffering; (c) Texas, Mexico and Oregon all follow comparative fault, permitting recovery if plaintiff is less at fault than defendants but not if they are equally at fault; in Texas, the trial court is required to instruct the jury about the effect upon recovery of its percentage findings of fault; in Mexico and Oregon, such instructions are prohibited, to avoid jury manipulation of its percentage allocations; (d) the Texas statute of limitations on tort actions is two years from the date of injury; in Mexico, the statute of limitations is one year; in Oregon there is a two year statute of limitation but a product liability reform measure passed in the 1980s provides "there shall be no liability for defective design or manufacture of a product more than ten years after its design or manufacture."
PART A. Assume that Texas follows conflict of laws principles specified in Restatement 2d, Conflict of Laws. The District Judge asks counsel for Dallas and BF what law will apply to the questions of (a) whether Dallas's failure to use the available seat belt is contributory negligence; (b) whether plaintiff may recover for contributory negligence; (c) whether, assuming there is evidence of contributory negligence, the court should instruct the jury about the effect of its percentage findings; and (d) whether the action is time barred. WHAT ARE THE ARGUMENTS OF THE PARTIES?
PART B: Assume the United States District Judge indicates that if she focused only upon the convenience and interest of justice factors [DON'T DISCUSS THOSE FACTORS - THAT IS A MATTER FOR THE CIVIL PROCEDURE CLASS, NOT THIS ONE], she likely would grant dismissal because of forum non conveniens. However, the judge expresses concern because recent decisions of the Texas Supreme Court have adhered to the rule that is unique to the Texas state courts that forum non conveniens dismissals may not be granted if plaintiff was a resident of Texas when the claim arose and continues to be a resident when the action is filed. Federal decisions, e.g. in cases based upon federal law, permit dismissal even if plaintiff is a forum resident if all other requirements for forum non conveniens are met. The Judge asks the parties to brief the issue whether she can dismiss on the ground of forum non conveniens even though plaintiff is a Texas resident. WHAT ARE THE ARGUMENTS OF THE PARTIES? EXPLAIN FULLY.II. (One Hour)
Manny Acres was a lifelong resident of Salina, Kansas. He owned a large parcel of land near Columbia, Missouri. When he learned he had terminal cancer, he had a religious conversion. Long talks with the minister of denomination he selected, the Ground for Universal Life Church located in Salina, led Manny to execute a will for the first time in his life. The will, executed two weeks before Manny's death, complied with all formalities requirements for wills under both Kansas and Missouri law. It bequeathed the fee simple interest in Manny's Missouri land to the Ground for Universal Life Church, which was organized as a charitable corporation that is tax exempt under section 501(c)(3) of the tax code. Assume the Kansas rule against perpetuities prohibits all conveyances of fee simple interests in land to charities. Missouri law does not contain any similar provision. Under Missouri law, to prevent overreaching by charities at times of vulnerability by donors, all bequests of both real and personal property to charities are invalid if included for the first time in a will executed within thirty days of the testator's death. When Ground for Universal Life Church institutes ancillary probate proceedings in Missouri seeking transfer of the Missouri land to it, the residuary legatee of Manny's will, his son Green Acres who also lives in Salina, Kansas, contends the land should be transferred to him. HOW SHOULD THE MISSOURI LAND BE DISTRIBUTED (A) IF MISSOURI FOLLOWS THE CHOICE OF LAW RULES OF THE FIRST RESTATEMENT? (B) IF MISSOURI FOLLOWS GOVERNMENTAL INTEREST ANALYSIS? EXPLAIN FULLY.
Reading Construction Company, a Texas corporation, and its Canadian subsidiary Reading-Canada submitted a bid to a Canadian company for a subcontract to lay a natural gas pipeline across the St. Lawrence River in Canada. However, the low bidder was Baker Energy Resources, Inc., a New York corporation engaged in projects throughout the United States, and it was awarded the project. Reading sued Baker in a Canadian court, claiming Baker had improperly made use of trade secrets held by Reading that made it possible for Baker to submit the low bid. The Canadian court found after a contested trial that Baker had improperly used plaintiffs' trade secrets and entered judgment against Bakers for nearly $7 million, three times the amount of Baker's entire profits on the subcontract. This was the measure of damages provided for such a claim under Canadian law but it was more than ten times larger than the amount that would have been awarded under the trade secrets law of any state in the U.S., which permit recovery only of the proportion of profits attributable to the specific use of the trade secret.
Baker had few assets in Canada. Reading thus brought suit against Baker in Louisiana, seeking recognition and enforcement of the Canadian judgment. Baker appeared and contended Louisiana should not recognize or enforce the Canadian judgment because in reverse circumstances Canadian courts would not recognize or enforce American judgments where the measure of damages used was vastly disproportionate to the Canadian measure of damages. The Louisiana court rejected Baker's claim, ruling that reciprocity is not required, and entered judgment for nearly $3 million on Reading's claim, less the modest amount recovered in Canada. Baker had only $6,000 in Louisiana bank accounts that could be used to satisfy the judgment. Because Baker had nearly $20 million in equipment located at a project site in Texas, Reading next brought suit against Baker in Texas based upon the Louisiana judgment. Texas follows the rule regarding mutuality announced in Hilton v. Guyot (text p. 817). PART A. WHAT ARGUMENT CAN BAKER MAKE THAT THE TEXAS COURT NEED NOT ENTER JUDGMENT BASED UPON THE LOUISIANA JUDGMENT? PART B. WHAT ARGUMENT CAN READING MAKE THAT IT MUST?
CONFLICT OF LAWS SAMPLE ANSWER - FALL 2005
I.
A. The Restatement 2d approach to choice of law requires the court to determine separately with respect to each issue which state has the most significant relationship. In tort cases, Section 145 requires the court to consider the relationship of states with various contacts to the parties and the transaction and to evaluate their significance using the seven choice of law factors specified in Section 6. Two factors that are particularly important in tort cases are the relevant policies of the forum and the relevant policies of other interested states. In certain instances, the Restatement 2d identifies a state whose law will presumptively be applicable unless some other state has a more significant relationship.
(1) Plaintiff will argue that the determination whether failure to use an available seatbelt is contributory negligence is a loss allocation rule that resolves whether financial responsibility will be fixed upon the party whose conduct caused an injury-producing incident. As such, Mexico has no interest in applying its loss allocation rule when neither party is a domiciliary of Mexico. By contrast, because plaintiff is a domiciliary of Texas and Texas will bear the long-term consequences of any failure of plaintiff to recover her actual damages, the purpose of the Texas contributory negligence rule would be advanced by applying it in this case. In addition, the Texas rule serves as an incentive for manufacturers nationwide to distribute within the state only those products that are safely designed. This policy is implicated since the tire that is the subject of litigation was sold by defendant in Texas. Plaintiff will argue that the Oregon rule is a general one for tort cases and is not directed specifically at manufacturers in product liability actions. Even if the purpose of the Oregon rule is in part to protect Oregon manufacturers, defendant can have no justified expectation that a liability limiting law of the state of manufacture will be applied when its products are distributed to other states. Phillips v. General Motors.
Defendant will argue that the contributory negligence rule of Mexico is a conduct regulating rule whose purpose is to provide incentives for passengers to buckle up while in Mexico and thus reduce the cost of injuries and the extent of care that must be provided by Mexico medical facilities. The place of the injury has the most significant relationship with respect to conduct regulating rules. Defendant invokes Restatement 2d Section 156 which specifies that the question whether conduct violates a standard of care ordinarily is governed by the law of the place of the injury.
(2) Plaintiff will argue that even if the contributory negligence rule is a conduct regulating rule, Mexico's limitation upon recovery for pain and suffering is purely a loss allocation rule designed to advance economic growth. As such, the purpose of the Mexico law would not be advanced by applying it in this case between a Texas domiciliary and an Oregon manufacturer. While the purpose of Mexico's law would be advanced if the tire in question had been designed or manufactured in Mexico, or if allowing recovery would impact Mexico insurance rates, the tire in question was neither designed, produced, nor distributed directly by defendant to Mexico and Mexico law would not have been considered by an underwriter in setting insurance rates charged to defendant. There is no need to select between Texas and Oregon law on this issue because there is no conflict between them. The purpose of Texas law in allowing full recovery of actual losses would be advanced in this case because plaintiff is a Texas domiciliary and Texas will bear any consequences long-term of plaintiff's emotional distress. In addition, the purpose of unlimited recovery to deter manufacturers from distributing unsafely designed products in Texas also will be advanced. Indeed, plaintiff may argue that one purpose of Oregon's law will be advanced since unlimited recovery encourages the manufacture of safe products in Oregon and enhances confidence nationwide in Oregon products.
(c) A rule granting or denying recovery to a precisely 50 percent at fault plaintiff is not a conduct regulating rule but rather is a loss allocation rule. Defendant will argue that Oregon's rule permitting recovery is meant to increase the likelihood of compensation to an injured party and the purpose of Oregon's rule is not applicable in this case because it is meant to benefit Oregon injured parties. It is not a rule focused on deterring manufacture of unsafe products since conduct would not be affected by the 1% difference in the laws.
Plaintiff will argue that despite the apparent conflict between Oregon and Texas law, there is no actual conflict. Because the jury is instructed under Texas law about the effect of its verdict upon plaintiff's recovery there is no risk that a jury that believes plaintiff should recover will find plaintiff 50 percent at fault. By contrast, there is no need for an instruction in Oregon since plaintiff recovers even if plaintiff is 50 percent at fault. No interest of Oregon will be impaired by using Texas law and by giving a jury instruction. Moreover, because the jury instruction is concerned with jury manipulation, this is a procedural matter that should be governed by the law of the forum.
(d) Plaintiff argues that the statute of limitations ordinarily is treated as procedural so that the forum may apply its longer statute of limitations even when the statute of limitations has expired at the place of the injury. Sun Oil Co. v. Wortman. The language of the forum's borrowing statute (assumed in the instructions to be identical to K.S.A. 60-516) reinforces the procedural characterization because it proceeds upon the premise that the forum's statute of limitations is initially applicable and has not expired. Plaintiff notes the borrowing statute is inapplicable on these facts because plaintiff is a resident of Texas and has held the claim since it arose.
The statute of repose presents a separate issue. Plaintiff will argue that neither Texas nor Mexico has an interest in applying its statute of repose. These statutes are designed to protect local manufacturers and to encourage manufacturers to locate within the state. Here, defendant has not located a manufacturing plant in Texas and while defendant has located plants in Mexico it did not manufacture there the bus tire involved in this case, which was designed and manufactured in Oregon only. Product liability insurance underwriting would not be based upon the statutes of repose of either Texas or Mexico. Plaintiff will characterize the Texas statute of repose merely as an exception to its general policy of full compensation for injured parties when the ordinary statute of limitations has not expired. When the purpose of the exception will not be advanced by applying it in this case, the applicable general policy of Texas favors compensation. Thus, there is a false conflict since Oregon, by electing not to cut off liability for unsafe products, seeks to deter unsafe design of products like this tire that are manufactured in Oregon.
Defendant will contend that when there is no Oregon injured party Oregon has no interest in subjecting an Oregon business to litigation that would be barred both where the injured person lives and the injuries occurred.
[Question (d) is based upon Gantes v. Kason Corporation, 145 N.J. 478, 679 A.2d 106 (1996).]
B. Plaintiff will acknowledge that the Texas rule prohibiting dismissals based upon forum non conveniens is not part of the substantive law of torts and does not define the rights and liabilities of the parties for products liability. Federal courts thus would not violate the Tenth Amendment by failing to apply the Texas rule. However, plaintiff argues that when the proposed alternative forum is in a foreign country, the federal forum non conveniens doctrine is not based upon a federal statute (such as the transfer statute in 28 U.S.C. 1404) nor upon a federal rule of civil procedure adopted pursuant to the Federal Rules Enabling Act. Forum non conveniens is a common law, court-made doctrine and it thus does not automatically control even if it is in direct conflict with state common law or statutory provisions. Hanna v. Plummer. Plaintiff argues the federal court must apply the Texas doctrine of forum non conveniens because it is outcome determinative in the "twin aims" sense described in Guaranty Trust v. York and Hanna v. Plummer. Failure to apply state law will lead to forum shopping for a federal court, not by plaintiff as is ordinarily the case but as in this scenario by defendant. The difference between the certainty of litigating in Texas courts using Texas choice of law rules versus the possibility of dismissal in federal court that would force the case to be refiled in a different court that would apply different choice of law rules would give defendant a strong incentive when viewed prospectively to remove the action to federal court. Likewise, there is the risk of discrimination against Texas forum residents if different rules are applied.
Defendant may argue that even if the state forum non conveniens rule is outcome determinative, it does not control when there is a strong federal countervailing policy. Byrd v. Blue Ridge. Here, the need to protect itself from the burden of litigating a case in an inconvenient forum involves the basic competence of federal courts as independent courts. Forum non conveniens focuses on judicial efficiency, not the definition of substantive rights. Federal courts have an independent interest in self regulation on matters of management and judicial administration that requires uniformity of standards throughout the federal court system. The purpose of diversity jurisdiction is to provide non-residents the protection of a neutral determination. Thus, it is consistent with the purpose of diversity jurisdiction to permit the federal court to independently apply forum non conveniens when, as here, the state rule gives the forum resident a home court advantage regardless of convenience factors.
Plaintiff will respond that the Byrd balancing test favors application of state law because it reflects a strong Texas policy to assure that its citizens are able to litigate cases in the United States and in Texas. This is not a case in which state and federal law differ on the discretionary factors to be considered in granting or denying dismissal for forum non conveniens, where federal judicial administration concerns might predominate. Plaintiff will note that the only cases in the United States Supreme Court in which countervailing federal policies have overridden outcome determinative state rules have been those in which concerns for judicial self-administration have been bolstered by other factors such as the allocation of functions between judge and the jury influenced by the Seventh Amendment.
[The issues in question (1B) are discussed in the majority and concurring opinions in In re Air Crash Disaster Near New Orleans, La., 821 F.2d 1147 (5th Cir. 1987).]
II.
A. Under the first Restatement, the validity of a will of immovable property (real estate) is governed by the law of the situs, so Missouri will apply its own law and invalidate the gift to charity in the will made within 30 days of death.
If Missouri follows governmental interest analysis, the church will argue that Kansas has no interest in applying its law to invalidate the bequest to charity. The Kansas rule is part of its rule against perpetuities and its purpose is to keep Kansas land circulating in commerce. That purpose is inapplicable here because the land in question is located in Missouri. Similarly, Missouri has no interest in having its law applied. Missouri's rule is not part of its rule against perpetuities and there is no Missouri policy against fee simple gifts of land to charity. The Missouri law may have two purposes, first, protecting Missouri testators from overreaching by charities during their last illness, and second, regulation of the conduct of charities acting within Missouri or of Missouri charities. The purposes of Missouri law would not be advanced by applying it to a Kansas decedent or a charity located and acting only in Kansas. The church will argue that the rules of both Kansas and Missouri are exceptions to their general policies of testamentary freedom that uphold testamentary gifts and there thus is no conflict between the only applicable general policies of the two states.
Green Acres will argue this is an unprovided for case in which neither state has an interest in applying its law and that as a result the law of the forum should apply. The court should not reach a result in a multistate case by upholding the gift to charity that neither state would reach in a purely domestic case.
B. Plaintiff Reading will argue that Texas is required to give full faith and credit to the Louisiana judgment as a judicial proceeding of a sister state. Texas may not refuse to enforce the Louisiana judgment by looking behind it to determine that the underlying claim violates Texas public policy or because it believes the Louisiana court decided the case incorrectly.
Baker will argue that while Texas ordinarily must give full faith and credit to judgments of sister states, that should not be required when the judgment of the sister state is based on a foreign country judgment that the forum would not enforce. The full faith and credit clause is fully implicated when a judgment of a sister state is an original adjudication of a claim or involves a claim based upon state law. Baker will invoke the reasoning of Baker v. General Motors Corporation (text p. 504) that full faith and credit need not be given to sister state judgments where there is too great an interference with ligitation over which the sister state has no authority, thus infringing on the sovereignty of the forum as an independent judicial system. If Texas requires reciprocity before enforcing foreign country judgments against its citizens, the party who obtains a foreign country judgment ought not be able to circumvent that limitation by the expedient of first suing upon the foreign country judgment in another state that does not have the same policy regarding reciprocity. Baker will argue that the full faith and credit clause does not require Texas to enforce the Canadian judgment because full faith and credit is required only for judgments of sister states. If Texas follows the rule of Hilton v. Guyot, it will not automatically recognize a foreign country judgment in favor of a foreign country plaintiff (here, the Canadian subsidiary) against a defendant from the United States, in the absence of reciprocity. It may refuse to do so here because of failure to satisfy the comity factors of Hilton that must be met in all cases since the basis of liability here is contrary to compensatory policies of American law.
Further, Baker may argue that the judgment should not be enforced because it is penal in nature–it imposes a penalty far in excess of actual damages. Baker may argue that Texas is free to apply to foreign country judgments a broader definition of what constitutes a penal judgment than is permitted under Huntington v. Attrill regarding domestic judgments. Reading will respond that the judgment is not penal in the international sense required to deny full faith and credit because it does not provide a forfeiture to the government.
[Part B is based upon Reading & Bates Construction Co. v. Baker Energy Resources Corporation, 976 S.W.2d 702 (Tex. App. 1998)].
C. Under Restatement 2d Conflict of Laws, a choice of law by the parties in the agreement controls absolutely for questions of interpretation and other matters that the parties might have controlled by agreement but does not control absolutely for questions of validity of the agreement or matters the parties could not have controlled by express agreement. Plaintiff Wolverine will first argue that the choice of law clause in the contract does not apply to questions of validity, such as whether a waiver of the right to file mechanic's liens is enforceable, and applies only to questions of interpretation. The clause provides only that the contract shall be "interpreted and construed" according to Michigan law. While the contract also provides that the agreement is deemed to have been "executed" in Michigan, place of execution is not the controlling factor in determining the law applicable to validity questions under Restatement 2d. Defendant Nittany will argue the clause should be deemed to apply to questions of validity as well as interpretation. The traditional choice of law rule made questions of the validity of contract terms subject to the law of the place of contracting and the parties should be understood as having designated a place where the contract is deemed executed for that purpose.
A choice of law by the parties for matters of validity ordinarily is upheld unless the state chosen has no reasonable connection with the parties or the transaction or the law of the state chosen would violate a fundamental policy of a state with a materially greater interest than the state chosen. Restatement 2d Section 187. The first exception is not applicable because Michigan has a reasonable connection with the transaction as the domicile of the plaintiff contractor and as a place of some of the negotiations. While Wolverine may argue that Kentucky has a materially greater interest in the question of waiver of mechanic's liens than Michigan because it is the state in which the liens would be filed and the case involves a construction project in Kentucky, Kentucky's willingness to enforce lien waiver clauses does not reflect a fundamental policy sufficient to override the parties' choice of law. The Kentucky rule enforcing such clauses is not found in a statute that might reflect fundamental policy but instead in a common law decision that is a mere application of Kentucky's general principles of freedom of contract when the legislature is silent.
Wolverine argues that while choice of law clauses ordinarily are upheld, when the law chosen would invalidate the contract, or a provision thereof, courts should treat the contractual choice of law as inadvertent and disregard the clause. The parties obviously intended that the waiver of the right to file mechanic's liens should be enforceable and the court should apply a principle of validation. See Comment to Restatement 2d Section 187. The court should hold the waiver of the right to file mechanic's liens valid if that clause is valid under the law that would otherwise govern the issue under Restatement 2d Sections 188 and 6. Wolverine will invoke Restatement 2d Section 196 which specifies that for contracts for services, the law of the place of performance, here Kentucky, presumptively applies unless some other state has a more significant relationship to the issue. While negotiations occurred in the parties' domiciles of Pennsylvania and Michigan, Michigan's relationship is not sufficient to overcome the section 196 presumption. The purpose of Michigan's law invalidating waivers of mechanic's liens is to protect subcontractors from overreaching by general contractors. Michigan's purpose to protect Michigan subcontractors would not be advanced by applying its law in this case because Nittany is not a Michigan subcontractor.
Nittany will argue that while a choice of law clause should not be applied automatically when it would invalidate the parties' agreement, it should be applied when it merely invalidates one provision as opposed to the entire agreement. Moreover, the choice of law clause here was drafted by Wolverine and such a clause should be enforced when it is the drafter who asks the court to disregard it. The drafter should be presumed to have chosen Michigan law because of other benefits Michigan law conferred and should not be permitted to invalidate the clause to evade its burdens.
[This question is drawn from Kipin Industries, Inc. v. VanDeilen International, Inc., 182 F.3d 490 (6th Cir. 1999)].
