Milissa Madrigal v. Ibp, Inc., Evelyn I. Roskob v. Ipb, Inc.
Docket: 93-3308
Court: Court of Appeals for the Tenth Circuit; April 22, 1994; Federal Appellate Court
Unpublished opinions can now be cited if they have persuasive value on a material issue and if a copy is provided with the citing document or during oral argument. In the case of Milissa Madrigal and Evelyn I. Roskob against IBP, Inc., the Tenth Circuit affirmed the district court's summary judgment in favor of IBP. The appellants argued that the district court incorrectly used a clear and convincing evidence standard for their retaliatory discharge claims, asserting that Kansas law requires a different standard. They requested that the appeals be delayed until the Kansas Supreme Court addressed a similar issue in another case. The court declined to postpone the appeals, noting that the question remains open under Kansas law, with precedent supporting the clear and convincing standard. Additionally, the appellants were found to be too late in raising the standard issue since Roskob had previously agreed to it, and there was no objection filed by either party during the proceedings. The pretrial order in Roskob's case explicitly stated the standard to be applied, which bound the parties, while Madrigal's case did not raise this issue despite being closely related. Madrigal's motion under Fed. R. Civ. P. 59(e) did not contest the standard used by the district court, and the appellate court found no reason presented on appeal to dispute the application of the same standard in both cases. The court declined to consider the issue for the first time on appeal, as no justification was provided beyond the certification in another case. The appellate court affirmed the district court's judgment against Madrigal on the merits. The order and judgment are not binding precedent except under established legal doctrines, and the court generally disallows citation of such orders unless specified. The appeals were consolidated for decision due to their interrelated nature and shared legal representation. Additionally, IBP's brief indicated that Roskob improperly raised an issue in a late surreply, which violated local rules; since Roskob did not address this matter in her brief or include the surreply in the record, she has forfeited any argument related to it.