Petition — Dayon v. Appellate Division

Supreme Court, U. &

Fiji + p

IN THE NOV 11 1978

Supreme Court of the United Stadewer rooax JR., CLER

OCTOBER TERM 1976

"76-666 *

AL DAYON, individually and on behalf of MASTERCRAFT ELEC-

TRONICS CORP.,

Plaintiff-Petitioner,

—vV.—

THE HONORABLE SUPREME COURT OF THE STATE OF NEW

YORK, APPELLATE DIVISION, FIRST DEPARTMENT, THE

. HONORABLE HAROLD A. STEVENS, THE HONORABLE

THEODORE R. KUPFERMAN, THE HONORABLE GEORGE

d TILZER, THE HONORABLE AARON STEUER and THE HON-

ORABLE EMILIO NUNEZ, Justices of the SUPREME COURT

OF THE STATE OF NEW YORK, APPELLATE DIVISION,

FIRST DEPARTMENT,

Defendants-Respondents,

THE HON. VINCENT A. MASSI, Justice of the SUPREME COURT

OF THE STATE OF NEW YORK, NEW YORK COUNTY,

DOWNE COMMUNICATIONS, INC., EDWARD R. DOWNE,

| JR., WILLIAM H. KEHL, as Sheriff of the City of New York, and

THE AETNA CASUALTY AND SURETY COMPANY,

Defendants.

— SE

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

—

BERNARD G. EHRLICH, ESQ.

Attorney for Petitioner

Of Counsel: 299 Broadway

CHARLES SUTTON, Esq. New York, New York 10007

299 Broadway

New York, New York 10007

212-964-8612

o te

INDEX

Page

oo, a a 1

The Issue Presented. ...#-eeeeee 2

Argument :

Point I

The judgment on appeal

failed to comply with

the rule of law estab

lished by this Court .....-.-« 3

Point II

The federal claims

alleged in the first

claim for relief are

eubetenGseal. ccc cere eeee 6

Point III

The rule of Rooker v.

Fidelity Trust Co. is

inapplicable ....e«eesceeee 25

Conclusion

The petition for

certiorari should

be granted ....s«ecececcceceevee 27

Appendix

A. Order of District Court

dated April 22, 1975 ...«.e«.e«e« &l

B. Memorandum Decision of

District Court dated

Mateh 17, 1975 «cece seee50ee a3

- ii- | - iii-

Page | Page

Appendix continued |

C. Judgment of Court of Appeals | Federal Cases continued:

dated June 16, 1976. . « « « « « A-7

<<

Fuentes v. Shevin,

D. Order Denying Rehearing of 407 U.S. 67 (1973) ...

Court of Appeals dated

Repest 13, 19FGe we cece eee el wT Goosby v. Osser,

409 U.S. 512, 518 (1973) . « « « « « 25

sees ce ehle 2a

Hagans v. Levine,

415 U.S. 528, 533 (1974) . . 2, 3. 5, 8 9

CITATIONS

Herman v. Valley National

Federal Cases: Bank of Arizona,

339 F. 2d 564 (5th Cir. 1964). ... 12

Brown v. Chastain,

416 F. 2d 1012, 1013 Lynch v. Household Finance Corp.,

(Sth Cir. 1969). «© «© ee ceecee 27 405 U.S. 538, 542-552 (1972) . 20, 21, 24

Carey v. Bert Randolph Sugar, etc., Mitchell v. W. T. Grant Co.,

383 F. Supp. 643 . « « « ec e e 12, 14, 15 416 U.S. 600, 613, 614 (1973). 17, 20, 24

Carey v. Bert Randolph Mosher v, Phoenix,

Sugar, etc. ee IT, / 287 U.S. 29, 30 (1932) o2 8 oe @' e@ 6 5

96 S. Ct. 1208, 1210

(1976) . 2. © «© © « 12, 13, 14, 17, 27, 28 North Georgia Finishing v. Di-Chem,

419 U.S. 601 (1975). ~. «© «© «© @ © © 17

Cole v, Cunninghan,

333 UB. B07 Chere © © 6 618164: 20 Pacific Electric Ry. Co,

v. Los Angeles,

Edwards Ve Kearzey, 194 FF 112, 118 (1904) o.oo @' so 2’ «@ 5

96 U.S. 595, 601 . ° 7 ° . o . . cm . 24

Rooker v. Fidelity Trust Co.,

Ettor v. Tacoma, 263 0.8. 413 (19D). « « « ot & (8S, 285

236 UB. 148 CIGEBDe o © 0 0 6 6 ee 20

Scheuer v. Rhodes,

416 UB. 3393. 238 (2973) « é-¢ & « oe Se F

Page Page

Federal Cases continued: New york State Statutes:

Shuford v. Anderson, CPLR Section 6201. . . « + © « « 7+ 15, 16

352 F. 2d 755, cert. den, 1 7

33 US. CS Cees 6 SS 6 & eee 12. CPLR Rule 6212(a). . + « « «© © « Ve 45,

South Covington Ry. Co. v. New York, | CPLR Section 6223. . - «++ «+ 74 13, 15

259 U.S. 97 (1921) oe @ 4 © 6 2 2 we SS 5

New York lication:

The Fair v, Kohler Die Co.,

228 U.S. 22, 26 (1912) . 2. 2. 2 « © © 5p 8 | The Judicial Council, (New York)

7th Annual Report and Studies,

Thompson v. Washington, / (1941), "Recommendations relating ‘

497 F. zd 626, 635 (D.C. Cir. 1973). 23 | to Attachment" p. 396. . +++ +s -s 8

Federal Statutes:

Fed, Rules Civ. Pro.,

Rule 12(b)(1) 28 U.S.C.A.. « «© « ©o @ ly 2

Fed. Rules Civ. Pro., Rule 25. ... 2

38 U.S.C, Saebtion BO01 « « 6 «a ee 6

26 U.8.C. Sessies 22038 « « «6 ¢ 6 bs 6

28 U.S.C. Section 1343(3). . « « « « 6, 24

42 = Mm Section 1983 oe © Seo ae 6, 24

New York State Cases:

Rowles v,. Hoare,

61 Barb. 266, 270 (1870) . 18

Westerveldt v. Gregg,

12 N.Y. 202, 211, 212 (1854) .... 20

~ nS a

- 1 «

To: The Honorable Chief Justice and the

Honorable Associate Justices of the

Supreme Court of the United States:

Statement

The petitioner, Al Dayon, individue

ally and on behalf of Masterczaft Electronics

Corp., by his attorney, Bernard G, Ehrlich,

Esq., respectfully petitions for a writ of

certiorari to the United States Court of

Appeals for the Second Circuit from the

judgment of the said Court of Appeals dated

June 16, 1976 (A-7 ) which, without opinion,

affirmed the order of a single judge of the

United States District Court for the Southern

District of New York dated April 22, 1975

which dismissed the complaint against the

respondents, before answer, for lack of sub-

ject matter jurisdiction pursuant to Fed,Rules

Civ. Proc., Rule 12(b)(1), 28 U.S.C.A., on the

groun at the “plaintiff's claimed depriva-

tions are, in this Court's view, sufficiently

without merit to preclude the invocation of

subject matter jurisdiction® ( a-5 ). The

petitioner timely petitioned the United

States Court of Appeals for the Second Circuit

for rehearing of the appeal. The said Court

of Appeals denied that petition for rehearing,

without opinion, by order dated August 13,

1976 (a-9 ).

It is respectfully submitted that

the issue of subject matter jurisdiction of

the federal court is an important issue of

wide cwncern and effect upon litigants and the

federal courts and that certiorari should be

wea

granted. Hagans v. Levine, 415 U.S. 528, 533

(1974).

The Attorney General of the State of

New York appeared only for the named respond

ents and made the motion to dismiss the com

plaint pursuant to Fed, Rules Civ, Proc,, Rule

12(b)(1), 28 U.S.C.A, He did not appear for

and he did not make any motion on behalf of

the defendant, the Hon. Vincent R. Massi, Jus

tice of the Supreme Court of the State of New

York. The said Justice Massi was personally

served with the summons and complaint in this

action by the United States Marshal on January

7, 1974. He died on April 24, 1974 without

appearing in this action. No motion to substi-

tute pursuant to Fed, Rules Civ, Proc,, Rule

25 has been made as to the said late Justice.

None of the other named defendants

was served with process in this action.

Only the first, second and fourth

Claims for relief were alleged against the

named respondents. However, this petition

for a writ of certiorari is limited solely

to the first claim for relief as pleaded in

the complaint. None of the other claims for

relief as alleged in the complaint are pre-

sented to this Court for any relief,

The Issue Presented

The issue presented by this peti-

tion is whether the allegations of the fede-

ral claims, as set forth in the first claim

for relief, are insubstantial within the

ee ee Race Ne cg 5 Cake

v. ne eee ee a any

e 3-«

standard and rule stated by this Court in

Hagans v, Levine, 415 U.S. 528, 536-539 (1974),

so as to preclude subject matter jurisdiction

in the federal court.

Point I

The judgment on appeal

failed to comply with

the rule of law estab-

ed by this Court

The District Court, by its memoran-

dum decision dated March 17, 1975 ruled as to

the first claim for relief that:

bject matter jurisd: os

for example, no const .

teed right to a pre-judgment attachment.

In fact, a three-judge court in Bert Ran-

adolf Sugar and Wrestling Revue, Inc. v.

Curtis Circulation Co., 74 Civ. 78 (8.D.

N.Y. Oct. 17, 1974), appeal docketed,

43 U.S.L.W. 3405 (U.S. Jan. 13, 1975)

(Nos. 74-858 and 74-859), raises a nun

ber of serious questions concerning the

constitutionality of the New York sta

tute which authorized the prejudgment

order of attachment originally granted

to the plaintiff. ..... In essence,

- 4 =

therefore, plaintiff seeks to have this

court review the propriety of state

court orders. ..... This it cannot do.

Rooker v. Fidelity Trust Co., 263 U.S.

413 (1923). See also, Hill v. McClel-

Atchley v. Greenhill, 373 F. Supp. 512,

514 (S.D. Texas 1974); Jemzura v. Belden,

281 F. Supp. 200, 205 (N.D.N.Y. 1968).

ecoe Plaintiff has therefor not advanced

a Claim cognizable under either the Civil

Rights Act or the Constitution. Accord

ingly, the defendants’ motion to dismiss

for lack of subject matter jurisdiction

is granted." (Underscoring added.) (A-5-6).

It is apparent from the District

Court's memorandum decision dated March 17,

1975 that the District Court did not limit

itself to a review of the allegations of the

first claim for relief in an to determine

whether the federal claims alleged are sub-

stantial or insubstantial for purposes of

invoking federal court subject matter juris-

diction, but rather proceeded beyond that

issue and considered the merits of the fede-

ral claim presented by the allegations there-

of and rendered his decision on his view of

the substantiality of the merits of the

Claimed deprivations, as that District Court's

memorandum decision shows, to wit:

"Plaintiff's claimed deprivations

are, in this Court's view, sufficiently

without merit to preclude the invoca

tion of subject matter jurisdiction,

There is, for example, no constitution-

ally guaranteed right to a pre- judgment

attachment....* (Underscoring added.)

* —_ ee ee ee

- 5S=

This Court has clearly held that on

a motion to dismiss a complaint on the ground

of lack of subject matter jurisdiction of the

federal. claims by reason of insubstantiality

that the settled standard in reviewing the

issue of substantiality of the federal claims

presented is that the claims must be judged

by their

“allegations .... and not by the way

the facts turn out or by a decisior

on the merits, Pacific Blectric R.

Co. v. Los Angeles, 194 U.S. 112,

118, 48 L. Bd. 896, 899, 24 S&S. Ct.

586; Columbus R. Power & Light Co.

v. Columbus, 249 U.S. 399, 406, 63

L. ed, 669, 675, 6 A.L.R. 1648, P.U.R.

1919 D, 239, 39 S. Ct. 349; South Cov-

ington & C. Street R. Co. v. Newport,

259 U.S. 97, 99, 66 L. ed. 842, 844,

42 8. Ct. 418." Mosher v, Phoenix,

287 U.S. 29, 30 (1932); we

Levine, 415 U.S. 528, 536 973).

The District Court order dismissing

the complaint was rendered in violation of the

clearly stated rule and standard of law set

forth by this Court in repeated decisions and

must be reversed, Hagans v, Levine, 415 U.S.

528, 536-539 (1974); Mosher v. Phoenix, 287

U.S. 29, 30 (1932): The Pair v ler Die

Co 228 U.S. 22, 26 (1912); Scheuer v

Ricdes, 416 U.S. 232, 238 (1973); Pacific

Electric Ry, COoO-. Vv, Los Angeles, 194 U.S.

2, 118 (1904); South Covin n R Co

v, Newport, 259 U.S. 97 (1921).

e @e«

Point II

The federal claims

alleged in the first

claim for relief are

substantial,

The allegations of the first claim

for relief show that the federal claims are

substantial.

The first claim for relief alleged

that federal jurisdiction was based upon 42

U.S.C. Section 1983, 28 U.S.C, Section 1343(3),

28 U.S.C. Section 2201, and 28 U.S.C. Section

2283. (A-4 ) The first claim for relief al-

leged that the petitioner was seeking to re-

dress the deprivation by the respondents act-

ing under color of state law of the rights,

privileges and immunities secured to the plain-

tiff under the Constitution and laws of the

United States, and was seeking a declaratory

judgment pursuant to 28 U.S.C. Section 2201 to

declare the order of the respondents dated Feb-

ruary 13, 1973 in a state court attachment pro-

ceeding to be null and void, and petitioner

sought to enjoin the enforcement of the Appel-

late Division order pursuant to 28 U.S.C. Sec

tion 2283.

The first claim for relief alleged

that: the petitioner was not seeking any com

pensatory or punitive damages against the de-

fendants, that there was no pending state or

local criminal prosecution and none which the

plaintiff seeks to enjoin, that the petitioner

was seeking to have the federal court pass upon

—s

otents

AOD ANA DOT. cots

~-

-Je

the constitutionality of New York Civil Prac

tice Law and Rules, Section 6201, Rule 6212(a)

and Section 6223 as applied by the respondents

in that the said respondents, acting arbitrar-

ily and beyond their jurisdiction and contrary

to the settled law of the State of New York

applied the statutes invidiously and discrimin-

atorily unequally against the petitioner and

differently as to the petitioner than as to

everyone else under the same circumstances and

conditions and arbitrarily vacated the order

of attachment lawfully granted to petitioner

upon a ground that was totally irrelevant under

the settled law of the State of New York, arbi-

trarily, outside of the authority of the res-

pondents under the settled law of the State of

New York, without any basis in law and in fact,

and contrary to the settled law of the State of

New York, arbitrarily deprived the petitioner

of his property, the order of attachment, which

was a statutorily created property interest,

and arbitrarily imposed upon the petitioner

thereby a liability of $100,000.00 under the

statutory attachment bond, taking petitioner's

property without due process of law and in vio-

lation of the equal protection of the laws.

This Court in Scheuer v. Rhodes, 416

U.S. 232, 236 (1973) held:

"....it is well established that, in

passing upon a motion to dismiss, whether

on the ground of lack of jurisdiction

over the subject matter or for failure

to state a cause of action, the allega-

tions of the complaint should be con-

strued favorably to the pleader.*

It is also well established that upon

— 2

a mtion to dismiss the complaint for lack of

subject matter jurisdiction that the allega

tions of the complaint are assumed "to be true

in point of fact." The Fair v. Kohler Die Co,,

228 U.S. 23, 26 (1912).

The District Court, by its decision

dated March 17, 1975, found that the petitioner

had alleged in his claims for relief violations

of federal constitutional rights within the jur-

isdiction of the federal court and that but for

its conclusion that the claims were insubstan-

tial in merit would have denied the motion to

dismiss the claims for relief (A-4,5).

The Supreme Court in Hagans v, Levine,

415 U.S. 528, 536 (1973) stated:

"Over the years this Court has repeat-

edly held that the federal courts are

without power to entertain claims other-

wise within their jurisdiction if they

are ‘so attenuated and unsubstantial as

to be absolutely devoid of merit’. New

buryport Water Co. v. Newburyport, 193

U.S. 561, 579 (1904); ‘wholly insubstan-

tial’, Bailey v. Patterson, 369 U.S. 31,

33 (1962); ‘obviously frivolous’, Hannis

Distilling Co. v. Baltimore, 216 U.S. 285,

288 (1910); ‘plainly unsubstantial', Lew

ering v. Garrigues Co. v. Morrin, 289 U.S.

103, 105 (1933); or no longer open to dis

cussion’, McGilvra v. Ross, 215 U.S. 70,

80 (1909) .... Only recently this Court

again reviewed this general question where

it arose in the context of convening a

three-judge court under 28 U.S.C. Section

2281: *'Constitutional unsubstantiality'’

for this purpose has been equated with such

e @@

covcepts as ‘essentially fictitious’, Bai-

ley v. Patterson, 369 U.S. at 33; ‘wholly

unsubstantial’ ibid; ‘obviously frivolous’,

Hannis Distilling Co. v. Baltimore, 216

U.S. 285, 288 (1910); and ‘obviously with-

out merit’, Ex parte Poresky, 290 U.S. 30,

32 (1933). The limiting words ‘wholly’

and ‘obviously’ have cogent legal signifi-

cance, In the context of the effect of

prior decisions upon the substantiality

of constitutional claims, those words im

part that claims are constitutionally in-

substantial only if the prior decisions

inescapably render the ciaims frivolous;

previous decisions that merely render

Claims of doubtful or questionable merit

do not render them insubstantial for the

purposes of 28 U.S.C. Section 2281. A

claim is insubstantial only if *its un-

soundness so clearly results from the

previous decisions of this court as to

foreclose the subject and leave no room

for an inference that the questions sought

to be raised can be the subject of contro-

versy.** Ex parte Poresky, supra, at 32,

quoting from Hannis Distilling Co. v.

Baltimore, supra, at 288; see also Lever-

ing & Garrigues Co. v. Morrin, 289 U.S.

103, 105-106 (1933); McGilvra v. Ross,

215 U.S. 70, 80 (1909)." Goodby v. Osser,

409 U.S. 512, 518 (1973).* The substantia

lity doctrine as a statement of jurisdic-

tional principles affecting the power of a

federal court to adjudicate constitutional

claims has been questioned, Bell v. Hood,

327 U.S. 678, 683 (1943), and characterized

as *more ancient than analytically sound’,

Rosado v,. Wyman, supra 397 U.S. at 404. But

it remains the federal rule and needs no re-

» We

examination here, for we are convinced

that within accepted doctrine petition-

ers' complaint alleged a constitutional

Claim sufficient to confer jurisdiction

on the District Court to pass on the

controversy.

Jurisdiction is essentially the auth

ority conferred by Congress to decide a

given type of case one way or the other.

The Fair v. Kohler Die Co., 228 U.86..22,

25,,33 8. ct. 410, 411-412, 57 Le ed, 716

(1913). Here, Sections 1343(3) and 1983

unquestionably authorized federal courts

to entertain suits to redress the depri-

vation, under color of state law, of con-

stitutional rights. It is also plain

that the complaint formally alleged such

a deprivation. The District Court's jur-

isdiction, a matter of threshold deter-

mination, turned on whether the question

was too insubstantial for consideration."

(Underscoring added.)

The District Court below, while cit-

ing Hagans v, Levine, 115 U.S. 528 (1973),

failed to follow it.

The District Court dismissed the

first claim for relief on two grounds. The

first ground was that the petitioner had no

constitutional right to a prejudgment attach

ment and therefore that the deprivation of

the prejudgment attachment by the respondents,

however accomplished, could not be deemed a

deprivation of any federal right, to wit:

"Plaintiff's claimed deprivations are,

in this Court's view, sufficiently

without merit to preclude the invoca-

ee ee ee ee

a th

tion of subject matter jurisdiction.

There is, for example, no constitution-

ally guaranteed right to a prejudgment

attachment. In fact, a three-judge

court in Bert Randolph Sugar and Wrest-

ling Revue Inc, v. Curtis Circulation

Co., 74 Civ. 78 (S.D.N.¥. Oct. 17, 1974),

appeal docketed, 43 U.S.L.W. 3405 (U.S.

Jan. 13. 1975) (Nos. 74-858 and 74-859),

raises a number of serious questions con-

cerning the constitutionality of the New

York statute which authorized the pre-

judgment order of attachment originally

granted to the plaintiff* (A-5,6 ),

The second ground was that the first

claim for relief was foreclosed by a prior rul-

ing of this Court namely, by Rooker v, Fideli

Trust Co,, 263 U.S. 413 (1923), to wit:

“In essence, therefore, plaintiff

seeks to have this Court review the

propriety of state court orders and

a judgment. Rooker v. Fidelity Trust

Co., 263 U.S. 413 (1923) .... Plain-

tiff has, therefore, not advanced a

claim cognizable under either the

Civil Rights Act or the Constitution.

Accordingly, the defendants’ motion

to dismiss for lack of subject matter

jurisdiction is granted..." ( A-6 ).

It is fair to state that there is

some anbiguity in the decision as to whether

the first claim for relief was dismissed only

upon the first ground stated above, or upon

both the first and the second ground. That

ambiguity is based on the fact that the Dist-

rict Court set forth the second ground follow

- 12 -

ing his reference to the third claim for relief

which related to the alleged judgment rendered

by the late State Supreme Court Justice Massi,

who dismissed the petitioner's complaint for

unspecified "vague and ambiguous allegations",

which, as alleged in the third claim for relief,

was not any basis or authority to dismiss a

complaint under the settled law of the State

of New York, on a motion by a defendant which

was expressly limited solely to a request for

an extension of time to answer the State com

plaint. See, Shuford v. Anderson,

352 F. 2d 755, cert. den. 383 U.S. 935 (1965);

Harman v. Vall National Bank of Arizona, 339

F. 2d 564 (5th Cir. 1964).

It is respectfully suggested that the

District Court erred in holding that the pre-

judgment attachment granted to the petitioner

in the state attachment action was not a sub-

ject of constitutional protection because ‘the

statute upon which it was granted was chal-

lenged as to its constitutionality’. (A-5,6 ).

The ‘challenge to the New York attach

ment statutes raised by the decision of the

three-judge court in Carey v, Bert Randolph

Sugar’ suvora (383 F., Supp. 643) which was re-

lied upon by the District Court in its deci-

sion below ( A-5 ), was rejected by this Court

as being premature until the New York courts

decide what inquiry into the merits will be

made under CPLR Section 6223, at which point

it will be time for the federal court to decide

whether that standard for the construction of

CPLR Section 6223 is “consistent with the con

stitutional standard." Carey v, Bert Randolph

Sugar, etc., U.S. , 96 S. Ct.

1208, 1210 (1976). This Court in Carey v,

oe Me

Bert Randolph Sugar, supra, stated

"that the New York Court of Appeals has

already held that an attachment may be

vacated if it ‘clearly’ appears ‘that

the plaintiffs must ultimately fail’

on the merits. wWulfsohn v. Russian

Socialist Federated Soviet Republic,

234 N.Y. 372, 377, 138 N.E. 24, 26.

See also Maitrejean v. Levon Proper-

ties, 45 A.D. 2d 1020, 358 N.Y.8. 2d

203 (2d Dept. 1973); Richman v. Rich

man, 41 A.D. 2d 993, 344 N.Y.S. 2d 52

(3rd Dept. 1973); Martin Enterprises,

Inc. v. M.S. Kaplan Co., 45 A.D. 883,

358 N.Y.S. 2d 160. The precise nature

o: any inquiry into the merits which

will be made by the New York courts

under this rubric is unclear, but an

inquiry consistent with the constitu

tional standari is by no means automat-

ically precluded. Indeed, two New York

trial courts have expressly held, sub-

sequent to the decision below, that

where fact issues are raised on a

motion to vacate an attachment, with

respect to the merits of the underly

ing claim, a preliminary hearing will

be held on those issues, Regnell v.

Page, 82 Misc, 24 506, 369 N.Y.8. 2d

936 (Sup. Ct. N.Y. Co. 1975); New York

Auction Co. v. Belt, 368 N.Y.S. 2d 98,

N.Y.L.J. April 9, 1975, p. 17, Ce 3

(Sup. Ct. N.Y. Co.)." Carey v- Bert

Randolph Sudar. U.S.

96 8. Ct. 1208, 1210 (1976).

Thus, that construction of CPLR Sec-

tion 6223 which requires the holding of a pre-

e the

liminary hearing on contested issues of fact

as to the merits of the attachment plaintiff's

Claim appears to be the state construction and

appears to be consistent with this Court's con-

stitutional standard.

The issue presented by this petition

is the converse of that set forth by this

Court in Carey v. Bert Randolph Sugar, supra,

namely, that the appellate court respondents

vacated petitioner's prejudgment attachment

order arbitrarily, without a hearing on the

merits ard as further set forth herein and as

alleged in the first claim for relief, depriv-

ing the petitioner of his constitutional rights

of due process and equal protection of the laws.

It is important to note that the

challenge raised by the plaintiffs to the *New

York Attachment Statutes’ and ruled on by the

three-judge court in Carey v. Bert Randolph

Sugar, 383 F. Supp. 643, was confined to a

prejudgment attachment obtained under and

based upon the grounds described in CPLR Sec-

tion 6201(4)(5) and (8), namely, issues of

fraud and misappropriation "which involve a

determination of subjective elements of motive

and intent, .... notably unsuitable to deter-

mination on documentary proof alone (Poller v.

Columbia Broadcasting System, Inc., 368 U.S.

464, 473, 1962)." The three-judge court in

Carey v, Bert Randolph Sugar, supra, disting-

uished between those claims which were subject

to proof by documentation and those which were

not as to the grounds for a prejudgment attach

ment:

"Second, in Mitchell, the sole issues

before the Louisiana court which granted

ae vee a

ee

ee re Ok eR

» Me

the sequestration order were ‘the ex

istence of the debt, the lien and the

delinquency.’ As the Supreme Court

commented, ‘These are ordinarily un

complicated matters that lend them

selves to documentary proof (42 U.S.

L.W. at 4674), *...documentary proof

is particularly suited for questions

of the existence of a vendor's lien

and the issue of default’ (42 U.S.L.W.

at 4674 and 4677).*

The three-judge court in Carey v.

ert Ran lolph Sugar, 383 F. Supp. 634, con-

strued CPLR Section 6223 as follows:

"The sole basis for vacating the attach

ment under the CPLR is not (emphasis

by court) that the grounds upon which

it has been issued are unproven, but

rather that the attachment is unnec

essary to the security of the plain-

tiff; and the burden of proof is not,

as in Mitchell, on the plaintiff, but

on the defendant,.*

The three-judge court equated proof

of the grounds of attachment under CPLR Sec

tion 620 the requirements of CPLR Rule

6212(a) which provide that

"On a motion for an order of attachment

the plaintiff shall show, by affidavit

and such other written evidence as may

be submitted, that there is a cause of

action and one or more grounds for attach-

ment provided in section 6201 that exist

and the amount demanded from the defend

ant above all counterclaims known to the

plaintiff;*

apparently because in that case the grounds

and the causes of action were the same,

In this case, the grounds for attach

ment included the ground that the state attach

ment defendant, Downe Communications, Inc., was

a foreign corporation, which was the ground set

forth in CPLR Section 6201(1). The defendant

conceded that fact.

In this case, the facts presented to

the attachment court also showed, in addition

to allegations of fact showing causes of action

for fraud, misrepresentation and misappropria-

tion of corporate property, the making of a

$2,000,000.00 written advertisement contract

between Mastercraft Electronics Corp. and Downe

Communications, Inc., a copy of which was

attached to the attachment application, docw

mented full payment by Mastercraft for the ad

vertising, a breach of that written contract by

Downe Communications, Inc., supported by docu

mentary evidence of the letter by Downe Commun-

ications, Inc, to Mastercraft Electronics Corp.,

refusing to furnish Mastercraft Electronics

Corp. any further advertising space and ser-

vices, and repudiating the written contract,

and a factual specification of the damages; in

addition, one other cause of action for breach

of a written contract between petitioner Dayon

and Downe Communications, Inc., was also docw

mented, In this case the attachment corporate

defendant conceded the breach of contract ac

tions, but denied that it had committed fraud,

misrepresentation and misappropriation of cor-

porate property. These facts were alleged in

the first claim for relief.

CU RE FCT ied tat Mem Alan Dees opetie

e Me

When the New York Supreme Court at

Special Term Part II granted the plaintiff the

order of attachment dated August 14, 1972,that

court not only found that the plaintiff had

fully compiied with the requirements of the

attachment statutes, but it imposed the condi-

tion thereto that the plaintiff post a surety

bond which amounted to $100,000.00 surety bond,

which provided, in accordance with the Statute,

CPLR Rule 6212(b), that the plaintiff would pay

damages to the attachment defendant “if it is

finally decided that the plaintiff was not en-

titled to an attachment of defendant's prop-

erty".

The filing of this bond and the in-

curring of that liability, vested the plain-

tiff with the right to that order of attach

ment to the extent that it could not be vacated

or taken away from the plaintiff except in ac

cordance to the statute and in accordance to

the settled law of the State of New York, and

not arbitrarily and in excess of the jurisdic

tion of the respondents Appellate Division,

namely in accordance to due procers and equal

protection of the law provisions of the fede-

ral constitution.

Underlying this Court's decision in

Carey v. Bert Randolph Sugar, supra, Mitchell

v. W,T. Grant Co., 416 U.S. 600, 613, 614 (1973);

Fuentea vs Shevin, 407 U.S. 67 (1973); North

rgia Ls v. Di-Chem, 419 U.S. 601(1975)

is that prejudgment attachment is a valid, con-

stitutionally protected statutory remedy. Mr.

Justice Powell, in a concurring opinion in North.

Georgia Finishing v. Di-Chem, 416 U.S. 601, 610,

611 t1975) noted that there were garnishment and

- 18 -

attachment laws in each of the 50 states and

that "The State's legitimate interest in faci-

litating creditor recovery through the provi-

sion of garnishment remedies has never been

seriously questioned,*

The New York attachment statute was

first enacted in 1751, to wit, the New York

Absconding Debtor Act of 1751 (An Act to Pre-

vent Frauds in Debtors) c. 908, 3 N.Y. Col.

Laws (1894 ed) 835. The Judicial Council {tes

ror) 7tr Annual Report an tudies 41),

entitle Snecameendettans relating to Attach-

ment", p. 396. The New York attachment stat-

ute predated the Constitution.

The New York attachment statute is

a remedial and provisional remedy and right

and when a plaintiff "fairly brings himself

by his application within (its) spirit and

intent ...., he is to be protected in the er

joyment of its advantages." Rowles v, Hoare,

61 Barb. 266, 270 (1870), cited in The Judi-

cial Council (New York) 7th Annual Report and

Studies, p. 393, note 9. As shown by the said

Report, at pp. 393-395, the attachment remedy

has an ancient and legitimate lineage:

"The genesis of attachment has been

traced to Roman sources, In Roman

law, attachment involved the seizure

of the property of a defendant who

had ‘lurked at home to elude prose-

cution, or had absconded, so that ser-

vice of a citation could have no effect,’

The generally accepted view among judges

and commentators is that attachment, is

a proceeding whereby the defendant's

Me ee amps alk Tat

ete ty wee

Chama A ae i a A

Re ear

e 19 «

property is provisionally seized to satisfy

a judgment which the plaintiff expects to

recover, has no common law origin. Never-

theless, a type of attachment, analogous

to that of the Roman law, was extant in

the common law. A defendant who had de-

faulted on an original process, was sub-

ject to a writ of attachment, issued out

of the common law courts, commanding the

sheriff to attach his goods. If after the

seizure of his goods by the sheriff, the

defendant appeared, he was entitled to

treir return ‘in the same plight in which

they were attached;' if he defaulted, his

goods were forfeited. The purpose of the

common law attachment was to guarantee the

appearance of the defendant. The modern

attribute of attachment whereby the claim

of the plaintiff is secured to the extent

of the property attached, was still wanting.

The modern attachment in English law

is based on an early Custom of London, rec-

ognized by the merchants of London as early

ar 1482. ‘*By the custom of London, one may

attach money or goods of the defendant

either in the plaintiff's own hands, or in

the custody of a third person.’ So wrote

Bohn in his Privilegia Londini in 1723.

Under this Custom, the plaintiff, upon the

return nihil to the original process issued

in his behalf, if he surmised that another

person in the City of London was indebted

to the defendant, was entitled to a garnish

ment against such person. If the person ad

mitted the indebtedness, the debt was

attached to secure the plaintiff's demand.

The implementing of the Custom of London,

and of like customs of other English cities

- 20 -

by the English courts, constitutes the

essential basis for the modern attach-

ment, This is particularly true in

respect to the attachment of an indebt-

edness owing to a non-resident defendant.*

This Court held in Ettor v. Tacoma,

228 U.S. 148 (1912) that a right of action is

a property right. Also, Westerveldt v. Gregg,

12 N.Y. 202,211, 212 (1854). This Court held

in Mitchell v. W.T, Grant Co., 416 U.S. 600,

613, 614 (1973) that the remedy of attachment

is intertwined with the right of action itself

Since it provides the means by which the ulti-

mate judgment may be collected, In Mitchell,

supra, this Court stated, in regard to the

Maine attachment statutory scheme:

"The attachment was deemed ‘part of

the remedy provided for the collec

tion of the debt’ .... and represented

a practice that ‘had become fully es-

tablished in Massachusetts, part of

which Maine was at the time of the

adoption of the Federal Constitution."

Id., at 114, 141A, at 702. eee”

This Court recognized and confirmed

the constitutional validity and legitimacy of

the attachment remedy and that it was a right

as important to a creditor as the debt for

which the remedy was created to aid in and

enforce the collection thereof and to make

the legal right represented by the cause of

action for the debt, a reality. Mitchell v.

W.T. Grant Co., 416 U.S. 600, 613, 614 (1973);

Cole v. Cunningham, 133 U.S. 107 (1889).

In Lynch v, Household Finance Corp,,

nt ee ee

~~ o

405 U.S. 538, 542-552 (1972) this Court re-

soundingly held:

“This Court has never adopted the dis-

tinction between personal liberties and

proprietary rights as a guide to the

contours of Section 1343(3) jurisdic-

tion. Today we expressly reject that

distinction 7

Neither the words of Section 1343(3)

nor the legislative history of that pro-

vision distinguishes between personal

and property rights. In fact, the Con

gress that enacted the predecessor of

Sections 1983 and 1343(3) seems clearly

to have intended to provide a federal

judicial forum for the redress of wrong

ful deprivations of property by persons

acting under color of state laws.

This Court has traced the origin of

Section 1983 and its jurisdictional

counterpart to the Civil Rights Act of

1866, 14 Stat. 27, Adickes v. Kress &

Co., 398 U.S. 144, 162-163; Monroe v.

Pope, 365 U.S. 167, 171, 183-185. That

Act guaranteed ‘broad and sweeping ....

protection’ to basic civil rights. Sul-

livan v. Little Hunting Park, 396 U.S.

299, 237. Acquisition, enjoyment and

alienation of property were among those

rights. Jones v. Mayer Co., 392 U.S.

409, 432.

The Fourteenth Amendment vindicated

for all persons the rights established

by the Act of 1866. Monroe, supra, at

171; Hague, supra, at 509510. ‘It can-

not be doubted that among the civil

rights intended to be protected from

discriminatory state action by the Four-

teenth Amendment are the rights to ac

quire, enjoy, own and dispose of prop-

erty. Equality in the enjoyment of

property rights was regarded by the

framers of that amendment as an essen-

tial precondition to the realization of

other basic civil rights and liberties

which the Amendment was intended to guar-

antee', Shelley v. Kramer, 334 U.S. l,

10. e*eee

«++ Property does not have rights,

People have rights. The right to en-

joy property without unlawful depriva-

tion, no less than the right to speak

or the right to travel, is in truth a

‘personal right’, whether the 'property'

in question be a welfare check, a home,

or a savings account. In fact, a funda-

mental interdependence exists between

the personal right to liberty and the

personai right in property. Neither

could have meaning without the other,

That rights in property are basic civil

rights has long been recognized. ....

Congress recognized these rights in

1871 when it enacted the predecessor

to Sections 1983 and 1343(3). We do

no more than reaffirm the judgment of

Congress today.*

In Fuentes v. Shevin, 407 U.S. 67,

90 (1972), this Court held:

"The Fourteenth Amendment speaks of

‘property’ generally."

sa eT ee Pere

crm

, aie.

Ce aR aie. Le i gt Cille 2, At ann

ee ae

=

In Thompson v, Washington, 497 F. 2d

626, 635 (D.C. Cir. 1973), that court held:

"The scope of due process protection

also takes into account the source of

the interest for which the citizen ass-

erts the protection. It has long been

clear that the protected interests in-

ciude those interests in personal liber-

ty and property nurtured at common law.

See Windsor v. McVeigh, 93 U.S. 274, 23

L. Ed. 914 (1876). Protection of prop-

erty interests has never been in doubt,

but the extent of the protection has

recently been extended, See Smadach

v. Family Finance Corp., 395 U.S. 337,

89 S. Ct. 1820, 23 L. Ed. 2d 349 (1969)

(wage garnishment); Fuentes v. Shevin,

supra, (summary repossession). And Wis

consin v. Costantineau, 400 U.S. 433,

437, 91S. Ct. 507, 27 L. Ed. 2d 515

(1971) establishing that a person's

interest in his own reputation merits

procedural due process protection,

Sound analysis and authoritative pre-

cedent conjoins to make it clear that the

zone of interests protected by due pro-

cess procedural requirements includes

interests created by statute in favor

of a generally-defined class. ....

As for precedent, it suffices to

call the roll of the prominent decisions

of the past decade: Sherbert v. Verner,

374 U.S. 398, 83 S. Ct. 1790, 10 L. Ed.

2d 965 (1963) (unemployment compensation) ;

Speiser v. Randall, 357 U.S. 513, 78 S.Ct.

1332, 2 L. Ed. 24 1460 (1958) (tax exemp-

- 24-

tion); Goldberg v. Kelly, supra, (welfare

benefits); Bell v. Burson, 402 U.S. 535,

91S. Ct. 1586, 29 L. Ed. 2d 90 (1972)

(drivers' licenses); Department of Agri-

culture v. Murray, 413 U.S. 508, 93 S.

Ct. 2832, 37 L. Ed. 2d 767 (June 25,1973)

(Food Stamps) .*

As it was held in another context,

namely on the question of impairment of the

obligation of contracts:

"The obligation of a contract includes

everything within its obligatory scope.

Among these elements nothing is more im

portant than the means of its enforce-

ment. This is the breath of its vital

existence, Without it, the contract as

such, in the view of the law, ceases to

be, and falls into the class of those

‘imperfect obligations’, as they are

termed, which depend for their fulfill-

ment upon the will and conscience of

those upon whom they rest. ‘Want of

right and want of remedy are the same

thing’. 1 Bac. Abr. Tr. Actions in Gen-

eral, Letter B." Edwards v. Kearzey,

96 U.S. 595, 601 (1871).

The remedy of attachment is as vital to the

creditor as the right of action for the debt

and both are property rights within the mean-

ing and protection of the Constitution, 42

U.S.C. Section 1983 and 28 U.S.C. Section

1343 (3). Lynch v, Household Finance Corp.,

405 U.S. 538, 542-546, 552 (1971); Mitchell

v. WT, Grant Co,, 416 U.S. 600, 613, 614

(1973).

The allegations of deprivation of

federal constitutional rights set forth in

petitioner’s first claim for relief are sub-

stantial.

Point III

The rule of Rooker v.

Fidelity Trust Co. is

inapplicable

The District Court eis (leah Ve

Fidelity Trust Co., 263 U.S. 413 2 as

the authority for its holding that the peti-

tioner‘s federal claim was insubstantial, to

wit:

"In essence, therefore, plaintiff

seeks to have thi. Court review the

propriety of state court orders....

This it cannot do. Rooker v. Fide-

lity Trust Co., 263 U.S. 413 (1923)."

By citi Rooker, supra, the Dist-

rict Court An holding that the federal claim

presented by the petitioner, were insubstan-

tial because that decision of this Court ‘in-

escapably rendered the claims frivolous’,

Hagans v. Levine, 415 U.S. 528, 537, 538

(1974).

This Court in Goosby “: Osser,

409 U.S. 512, $16 (1973)

- 2<

"In the context of the effect of prior

decisions upon the substantiality of con

stitutional claims those words import

that claims are constitutionally insub-

stantial only if the prior decisions in-

escapably render the claims frivolous;

previous decisions that merely render

Claims of doubtful or questionable merit

do not render them insubstantial for the

purposes of 28 U.S.C. Section 2281 (28

U.S.C.S,. Section 2281). A claim is in-

substantial only if '“its unsoundness so

clearly results from the previous deci-

sions of this court as to foreclose the

subject and leave no room for the infer-

ence that the questions sought to be

raised can be the subject of controversy.*.'

Ex parte Poresky, supra, at 32, 78 L.

Ed. 152, quoting from Hannis Distilling

Co. v. Baltimore, supra, at 288, 54 L.

Ed, 482; see also, Levering & Garriques

Co. v. Morrin, 289 U.S. 103, 105-106, 77

L. Ed. 1062, 53 S. Ct. 549 (1933); McGil-

vra v. Ross, 215 U.S. 70, 80, 54 L. Ed.

95, 30 S. Ct. 27 (1909).*

It is respectfully submitted that

Rooker v. Fidelity Trust Co., 216 U.S. 413

(1923) does not apply to this federal action

and it is plainly not a prior decision on any

issue presented by the first claim for relief

in this federal action,

The facts in this case are greatly

different than those in Rooker v. Fidelity

Trust Co.,, 216 U.S. 413 (1923). In Rooker,

the plaintiffs were seeking in federal court

to have reversed or modified the actual final

- 27 «

nt which had been rendered in a state

action between the same parties, as to which

it was pleaded in the federal bill in equity

that the state court had had jurisdiction of

the parties, and of the subject matter, and

that the only Constitutional issue was whether

the state court could, on the appeal to that

court from the final judgment, render a deci-

sion which was different from that which it

had rendered on the appeal from the interlo-

cutory judgment, After the interlocutory

ju nt, the action was tried on the merits.

Plainly, additional facts were presented to

and considered by the court following the

interlocutory judgment in rendering the final

judgment. The federal action involved the

very same allegations which were presented

to, fully considered and rejected by the

state court. See, Brown v. Chastain, 416

F. 24 1012, 1013 (5th Cir. 1969). The doc

trine of res judicata applied to the federal

action by reason of that State final judgment

on the same issues.

The federal questions presented in

this case were not in existence, much less

were they presented to the state court. The

federal constitutional issues were created by

the arbitrary, illegal, nu)l and void order,

dated February 13, 1973 of the respondents

which vacated the Dayon order of attachment

in the Dayon state attachment action against

Downe Communications, Inc. and others arbi-

trarily and in violation of petitioner's con-

stitutional rights to due process of law and

equal protection of the laws, as heretofore

stated.

Carey v. Bert Randolph Sugar, etc.

- 28 -

U.S. , 96 S. Ct. 1208 (1976)

is not a prior decision foreclosing the first

claim for relief. The facts and the law appli-

cable are different, as noted above,

Conclusion

The petition for

certiorari should

be granted.

Respectfully submitted,

Yf |

(bbe fi, es

Esq.

Attorney for Pet

299 Broadway

New York, N.Y. 10007

Of Counsel:

Charles Sutton, Esq.

Dated: November 9, 1976

Av

APPENDIX

A. ORDER OF DISTRICT COURT

DATED APRIL 22, 1975

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

enw wr mer em wre eee we er ee en er rn we eee = - = X

AL DAYON, individually and on be

half of MASTERCRAFT ELECTRONICS

CORP .,

Plaintiff,

-against-

THE HONORABLE SUPREME COURT OF THE

STATE OF NEW YORK, APPELLATE DIVI-

SION, FIRST DEPARTMENT, THE HONOR-

ABLE HAROLD A. STEVENS, THE HONOR-

ABLE THEODORE R. KUPFERMAN, THE

HONORABLE GEORGE TILZER, THE HON-

ORABLE AARON STEUER and THE HONOR-

ABLE EMILIO NUNEZ, JUSTICES OF THE

SUPREME COURT OF THE STATE OF NEW

YORK, APPELLATE DIVISION, FIRST

DEPARTMENT, THE HON. VINCENT A,

MASSI, JUSTICE OF THE SUPREME COURT

OF THE STATE OF NEW YORK, NEW YORK

COUNTY, DOWNE COMMUNICATIONS, INC.,

EDWARD R. DOWNE, JR., WILLIAM H.

KEHL as Sheriff of the City of New

York and THE AETNA CASUALTY AND

SURETY COMPANY,

Defendants.

ORDER

74Civ.5616

RJIW

A- 2

In the above entitled action, a

motion having been made for defendants,

Justices of the Supreme Court of the State

of New York, Appellate Division, First De

partment, for an order pursuant to Rule

12(b)(1) of the Fed, R. Civ. P. dismissing

the compluint for lack of jurisdiction over

the subject matter and the Court having

issued and filed its Memorandum Decision

dated March 17, 1975, it is hereby

ORDERED, that the motion for de

fendants, Justices of the Supreme Court of

the State of New York, to dismiss the com

plaint for lack of jurisdiction over the

subject matter is granted,

Dated: New York, New York

April 22, 1975

/s/ ROBERT J, WARD

UNITED STATES DISTRICT JUDGE

A-3

B. MEMORANDUM DECISION OF DISTRICT

COURT DATED MARCH 17, 1975

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

AL DAYON, individually and on be- :

half of MASTERCRAFT ELECTRONICS

CORP., :

Plaintiff, :

-against- :

THE HONORABLE SUPREME COURT OF THE:

STATE OF NEW YORK, APPELLATE DIVI-

SION, FIRST DEPARTMENT, THE HONOR-:

ABLE HAROLD A. STEVENS, THE HONOR-

ABLE THEODORE R. KUPFERMAN, THE $

HONORABLE GEORGE TILZER, THE HON-

ORABLE AARON STEUER and THE HONOR-:

ABLE EMILIO NUNEZ, Justices of the

Supreme Court of the State of New : 74Civ.5616

York, Appellate Division, First R.J.W.

Department, the HON. VINCENT A. :

MASSI, Justice of the Supreme

Court of the State of New York, :

New York County, DOWNE COMMUNICA-

TIONS, INC., EDWARD R. DOWE, JR.,:

WILLIAM H, KEHL, as Sheriff of the

City of New York and The Aetna Cas;

ualty and Surety Company,

Defendants.

ee ee me EE OE EE EE EEO EOE RO EOE xX

Defendants, the Justices of the Sup-

reme Court of the State of New York, Appellate

Division, First Department, move for an order,

pursuant to Rule 12(b)(1), Fed. R. Civ. P.,

dismissing the complaint for lack of jurisdic

Ae 4

tion over the subject matter. The action was

brought pursuant to the Civil Rights Act, 42

U.S.C. Section 1983, and jurisdiction is in-

voked under 28 U.S.C. Section 1343(3), by Al

Dayon, individually and on behalf of Master-

craft Electronics Corp.

Plaintiff alleges that actions taken

by these and other defendants, in effect, de-

prived him of constitutionally secured privi-

leges and immunities and violated his consti-

tutionally protected rights to due process of

law and equal protection. In sum, plaintiff

alleges that he was deprived of his rights as

a result of the Appellate Division's failure

to comply fully with New York law governing

the vacation of a prejudgment order of attach

ment, Consequently, he contends that the

Appellate Division's order dated February 13,

1973 vacating an attachment previously granted

him was improper. In acdition, he alleges

that his rights were violated by the decision

of defendant Massi, which resulted in the entry

of an order on February 26, 1973, dismissing

his complaint with leave to serve an amended

complaint, without any motion to that effect

being made by his adversaries, He refused to

amend his complaint and a judgment dismissing

the case on the merits was entered on March 13,

1973.

In addition, plaintiff contends that

he was wrongfully denied judicial review of his

grievances, in the first instance, by the re-

fusal of the Appellate Division to grant him

leave to appeal its order of February 13 to

the New York Court of Appeals, and secondly,

by its dismissal of his appeal from the Feb

ruary 26 order of the Supreme Court on the

grounds that the judgment of March 13, 1973

"superseded" the order of February 26.

A 5

The complaint requests this Court to

annul the Appellate Division's order of Febrvu-

ary 13 vacating the prejudgment order of attach

ment originally granted by the Supreme Court,

Bronx County, at Special Term, as well as any

other actions or proceedings arising out of the

Appellate Division's order, In addition, plain

tiff seeks a declaratory judgment that the com

plaint and affidavits submitted by the plain-

tiff to the state court are sufficient to show

that plaintiff has a cause of action; and that

the complaint constitutes a legally sufficient

pleading. For the reasons hereinafter discussed

even when one views plaintiff's claims in the

most favorable light, it is clear that this

Court lacks jurisdiction over the subject mat-

ter.

Title 28 U.S.C. Section 1343(3) con-

fers jurisdiction upon district courts when

there is a constitutional claim "of sufficient

substance to support federal jurisdiction" Ha

ans v. Lavine, 415 U.S. 528, 536 (1974). Since

the rights sought to be protected under 2 U.8.C.

Section 1983 are fundamental to our system of

justice, district courts should only dismiss

claims for lack of jurisdiction when they are

"so insubstantial, implausible, foreclosed by

prior decisions ... or otherwise completely

devoid of merit..." Id. at 543, quoting Oneida

Indian Nation v, County of Onsida, 414 U.S. 661,

666 (1974).

Plaintiff's claimed deprivations are,

in this Court's view, sufficiently without mer-

it to preclude the invocation of subject matter

jurisdiction, There is, for example, no consti-

tutionally guaranteed right to a prejudgment

attachment. In fact, a three-judge court in

Bert Randolph Sugar and Wrestling Revue, Inc,

ass upon this question.

3405 (U.S. Jan. 13, 1975) (Nos. 74-858 and is unnecessary to p po

74-859), raises a number of serious questions

concerning the constitutionality of the New

York statute which authorized the prejudgment

order of attachment originally granted to the

plaintiff.

Settle order on notice.

Dated: March 17, 1975

s/ Robert J, ward

u.Ss Dede

Moreover, any deprivation of rights

which may have obtained from the unfavorable

judgment of March 13 was self-imposed since

plaintiff voluntarily refused to amend his

complaint. There is no constitutionally pro-

tected right to litigate such matters.

C. JUDGMENT OF COURT OF APPEALS

DATED JUNE 16, 1976

UNITED STATES COURT OF APPEALS

for the

SECOND CIRCUIT

in essence, therefore, plaintiff

seeks to have this Court review the propriety

of state court orders and a judgment. This

it cannot do. Rooker v, Fidelity Trust Co

263 U.S. 413 (1923). See also Hill ve McClel-

jan, 490 F. 2d 859, 860 (Sth Cir. 1974); Atch

ley v. Greenhill, 373 F. Supp. 512, 514 (S.D.

Texas 1974); Jemzura v. Belden, 281 F. Supp.

200, 205 (N.D.N.Y. 1968). Plaintiff also asks

this Court to declare his complaint to have

been legally sufficient. He also requests this

Court to annul the vacation of a prejudgment

order of attachment. Such actions are proper

for an appropriate appellate court but not a

federal trial court. See, e,g., Adkins v.

Underwood, 370 F. Supp. 510, 514-15 (N.D. Ill. Al Dayon, -yntneenane ety Many ——

1974). Plaintiff has, therefore, not advanced tercraft Electron Pee

a Claim cognizable under either the Civil Rights “ t

Act or the Constitution, Accordingly, the de- Plaintifs-appelian

fendants’ motion to dismiss for lack of subject ;

matter jurisdiction is granted, There is a \

serious question regarding defendants’ immunity

from suit. Since defendants have not chosen to

argue this question and the Court has determined

At a stated Term of the United States

Court of Appeals for the Second Circuit, held

at the United States Courthouse in the City of

New York, on the sixteenth day of June, one

thousand nine hundred and seventy-six.

Present: HON. WALTER R. MANSFIELD

HON. JAMES L. OAKES

HON. MURRAY I. GURFEIN,

t

A-6 _

v. Curtis Circulation Co., 74 Civ. 78 (S.D.N.Y. peticnd te

ect matter jurisdiction

Oct. 17, 1974), appeal docketed, 43 U.S.L.W. 7 | that it lacks subj j °

,

Circuit Judges.

Ve

The Honorable Supreme Court of The State of

New York, Appellate Division, First Depart-

ment, The Honorable Harold A, Stevens, The

<

ame gS :

A-8

Honorable Theodore R,. Kupferman, The Honor-

able George Tilzer, The Honorable Aaron Steuer

and The Honorable Emilio Nunez, Justices

of The Supreme Court of The State of New 75-7307

York, Appellate Division, First Department,

The Honorable Vincent A. Massi, Justice of

The Supreme Coutt of The State of New York,

New York County, Downe Communications, Inc.,

Edward R. Downe, Jr., William H. Kehl as

Sheriff of the City of New York and The Aetna

Casualty and Surety Company,

Defendants-Appellees,.

Appeal from the United States Dist-

rict Court for the Southern District of New

York,

This cause came on to be heard on the

transcript of record from the United States Dist-

rict Court for the Southern District of New York,

and was argued by counsel.

ON CONSIDERATION WHEREOF, it is now

hereby ordered, adjudged, and decreed that the

order of said District Court be and it hereby

is affirmed with costs to be taxed against the

appellant,

A. DANIEL FUSARO

Clerk

by

Vincent A. Carlin

Chief Deputy Clerk

A-9

D. ORDER DENYING REHEARING OF COURT OF

APPEALS DATED AUGUST 13, 1976

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a Stated Term of the United States

Court of Appeals, in and for the Second Circuit,

held at the United States Court House, in the

City of New York, on the thirteenth day of Aug

ust, one thousand nine hundred and seventy-six,

Present: HON. WALTER R, MANSFIELD,

HON. JAMES L. OAKES,

HON. MURRAY I. GURFEIN,

Circuit Judges.

Al Dayon, individually and on behalf

of Mastercraft Electronics Corp.,

Plaintiff-Appellant,

Ve

The Honorable Supreme Court of the

State of New York, Appellate Divi-

sion, First Department, The Honor- 75-7307

able Harold A. Stevens, The Honor-

able Theodore R. Kupferman, The Hon-

orable George Tilzer, The Honorable

Aaron Steuer and The Honorable Emi-

lio Nunez, Justices of the Supreme

Court of the State of New York,

Appellate Division, First Department,

et al.,

Defendants- Appellees.

A petition for a rehearing having been

filed herein by counsel for the appellant,

Upon consideration thereof, it is

A- 10

Ordered that said petition be and

hereby is DENIED.

A. DANIEL FUSARO

Clerk

By: /s/ Edward J. Guardaro

EDWARD J. GUARDARO

Senior Deputy Clerk