Opposition — Gravitt v. Southwestern Bell Telephone Co.

In THE

MICHAEL RODAK, JR., CLERK

Supreme Court of the United States

OCTOBER TERM 1976

No. 76-1036

OLETA GRAVITT, ETC., ET AL.,

Petitioners,

—against—

SOUTHWESTERN BELL TELEPHONE COMPANY, ET AL.,

Respondents.

BRIEF FOR RESPONDENTS IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

Of Counsel:

F. Mark GARLINGHOUSE

195 Broadway

New York, New York 10007

Wayne E. BaBLer

1010 Pine Street

St. Louis, Missouri 63101

James E. BARDEN

1010 N. St. Mary’s Street

San Antonio, Texas 78215

February 28, 1977

LEONARD JOSEPH

Harvey KuRZWEIL

Dewey, BALLANTINE, BusHesy,

PALMER & Woop

140 Broadway

New York, New York 10005

HuBert W. GREEN

Green & KaurMaAn, INc.

900 Alamo National Building

San Antonio, Texas 78205

Jack HEBDON

Groce, Locke & HEBDON

2000 Frost Bank Tower

San Antonio, Texas 78205

Attorneys for Respondents

TABLE OF CONTENTS

a)

:

Opinions Below

Jurisdiction

Statutes Involved

Question Presented

Statement of the Case

1. Filing of suit and removal of action ................

2. Remand of action

3. Mandamus proceedings

NY oroww nwo —-§ —-

Reasons For Opposing The Writ ......

I. The Decision Cf The Court of Appeals Is Not

In Conflict With Any Decision Of This Court 7

II. There Are No Conflicting Decisions By Courts

Of Appeals 13

III. The Petition Does Not Involve A Departure

From The Accepted And Usual Course Of

Judicial Proceedings Warranting Review By

This Court 14

Conclusion 16

Appendix A-1

li

INDEX OF AUTHORITIES

PAGE

Cases:

Angel v. Bullington, 330 U.S. 183 (1947) -................... 12

Gravitt v. Southwestern Bell Tel. Co., 396 F. Supp.

948 (W.D. Tex. 1975)

Gravitt v. Southwestern Bell Tel. Co., 416 F. Supp.

830 (W.D. Tex. 1976) 5, 10

In re Southwestern Bell Tel. Co., 535 F.2d 859 (5th

Cir. 1976) j 6, 14

In re Southwestern Bell Tel. Co., 542 F.2d 297 (5th

Cir. 1976) 6,9

Jarvis v. Southwestern Bell Tel. Co., 432 S.W.2d 189

(Tex. Civ. App. 1968) 5

London v. United States Fire Ins. Co., 531 F.2d 257

(Sth Cir. 1976) 13

Mas v. Perry, 489 F.2d 1396 (5th Cir.), cert. denied

419 U.S. 842 (1974) 12

Miller v. Davis, 507 F.2d 308 (6th Cir. 1974) -00.. 12

Robertson v. Ball, 534 F.2d 63 (5th Cir. 1976) ............ 13

Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100

(1941) . 12

Szantay v. Beech oo Corp., 349 F.2d 60 (4th Cir.

SD. snunnenis 12

Thermtron Prod., Inc. v. Hermansdorfer, 423 U.S. 336

(1976) 3, 6, 7, 8,

10, 11, 13

Wisniewski v. United States, 353 U.S. 901 (1957) ...... 14

Woods v. Interstate Realty Co., 337 U.S. 535 (1949)... 12

Ziady v. Curley, 396 F.2d 873 (4th Cir. 1968) .............. 12

PAGE

Statutes:

28 U.S.C. § 1292(b) 4

28 U.S.C. § 1332 9,12

28 U.S.C. § 1441 4,9

28 U.S.C. § 1446(b) 4

28 U.S.C. § 1447 6, 8, 11

Miscellaneous:

Fed. R. App. P. 21(b) . 15

Fed. R. App. P. 35(a) 13

R. Stern & E. Gressman, Supreme Court

Practice § 4.6 (4th ed. 1969) ... ——

Sup. Ct. R. 19 7,14

In THE

Supreme Court of the United States

OCTOBER TERM 1976

No. 76-1036

eo

OLETA GRAVITT, ETC., ET AL.,

Petitioners,

—against—

SOUTHWESTERN BELL TELEPHONE COMPANY, ET AL.,

Respondents.

BRIEF FOR RESPONDENTS IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

Opinions Below

The opinions delivered by the courts below are cited in

the petition and are set forth in the Appendix thereto

(hereinafter cited as “PA”).

Jurisdiction

Respondents do not dispute the jurisdiction of this Court

as set forth in the petition.

Statutes Involved

In addition to Title 28, United States Code, section

1447(c), (d) (1970), cited and set forth in pertinent part

2

in the petition, this case also involves the following

statutes:

Title 28, United States Code, section 1332(a), (c)

(1970) :

“(a) The district courts’ shall have original

jurisdiction of all civil actions wherein the matter

in controversy exceeds the sum or value of $10,000,

exclusive of interest and costs, and is between—

(1) citizens of different states... .”

“(c) For the purposes of this section and sec-

tion 1441 of this title, a corporation shall be

deemed a citizen of any State by which it has been

incorporated and of the State where it has its

principal place of business. . . .”

Title 28, United States Code, section 1441(a) (1970):

“(a) Except as otherwise expressly provided by

Act of Congress, any civil action brought in a

State court of which the district courts of the

United States have original jurisdiction, may be

removed by the defendant or the defendants, to the

district court of the United States for the district

and division embracing the place where such action

is pending.”

Question Presented

May a court of appeals issue a writ of mandamus requir-

ing a district court to retain jurisdiction of an action

removed on the basis of diversity of citizenship, when the

statutory prerequisites for jurisdiction are undisputably

satisfied but the district court nevertheless remanded the

action to the state court based on grounds not provided in

the statutes governing removal and remand?

Statement of the Case

The petition asks this Court, in effect, to reconsider and

overrule its decision last Term in Thermtron Prod., Inc. v.

Hermansdorfer, 423 U.S. 336 (1976). In this case, the

court of appeals simply applied Thermtron, as it was

required to do, by vacating an order of the district court

which had remanded a properly removed diversity case

upon an unauthorized, non-statutory ground.

1. Filing of swit and removal of the action. This

action was filed in a Texas state court on November 15,

1972, by James H. Ashley, a discharged executive of South-

western Bell Telephone Company, and by the widow and

two sons of T. O. Gravitt, a former executive of the

company. Plaintiffs asserted claims for defamation, inva-

sion of privacy and, in the case of the Gravitt plaintiffs,

wrongful death. Named as defendants were Southwestern

Bell, a Missouri corporation with its principal place of

business in Missouri; Southwestern Bell’s corporate parent,

American Telephone and Telegraph Company (“AT&T”),

a New York corporation with its principal place of busi-

ness in that state; and Chester L. Todd, Southwestern Bell’s

Vice President and General Manager for the company’s

San Antonio area operations, a Texas citizen.

When the action was initially brought, diversity of citi-

zenship was lacking since Todd and certain of the plaintiffs

were citizens of Texas. On May 1, 1975, the Gravitt plain-

tiffs amended their complaint to dismiss Todd as a defend-

ant to their claims. Since the Gravitts were citizens of

Texas, Oklahoma, and Florida, their amendment created

diversity of citizenship as to their claims against the re-

maining defendants, Southwestern Bell and AT&T. Accord-

ingly, on May 8, 1975, defendants removed the Gravitts’

claims to the United States District Court for the Western

4

District of Texas, San Antonio Division, pursuant to 28

U.S.C. §§ 1441, 1446(b). Because Ashley’s claims, and the

claims of the Gravitts with which they were joined, were

“separate and independent” within the meaning of 28

U.S.C. § 1441(¢), Ashley’s action was also removed to fed-

eral court pursuant to that section.

Thereafter, plaintiffs moved to remand the action upon

a variety of grounds. Plaintiffs’ remand motion was heard

by Chief Judge Adrian A. Spears on June 5, 1975, and

denied. Gravitt v. Southwestern Bell Tel. Co., 396 F.

Supp. 948 (W.D. Tex. 1975). Judge Spears expressly

found that the statutory requirements for removal were

present. He noted that “plaintiffs on the one hand, and de-

fendants on the other are citizens of different states, and

the ad damnum clause of the amended petition considerably

exceeds the $10,000 amount in controversy necessary to

confer diversity jurisdiction upon this Court under said

statute.” Id. at 949. He concluded that, “[a]lthough this

Court is reluctant to accept jurisdiction . . . it must do so

under the plain and unambiguous provisions of the law. .. .”

Id. at 951.

2. Remand of action. On April 2, 1976, almost a year

after denial of their first remand motion and following

extensive discovery and motion practice in the district

court, plaintiffs again moved to remand the action. In

their second motion, plaintiffs abandoned any pretext that

the action does not fall within the statutory criteria for

1. Judge Spears, although stating he was “unconvinced that plain-

tiffs’ position is supported by competent legal authority”, certified the

question for interlocutory appeal pursuant to 28 U.S.C. § 1292(b)

(1970), referring to the congestion of his docket, the difficulty of

providing a speedy trial in federal court, and his realization of a

purported “trend” away from diversity jurisdiction. The court of

appeals, without opinion, denied plaintiffs’ petition for leave to file

an interlocutory appeal. (The district court’s order of certification,

and the court of appeals’ subsequent order of denial, are reprinted

in Respondents’ Appendix. )

removal. Instead, they based their renewed motion upon

an estoppel theory predicated upon statements made in

a so-called “plea of privilege” — a motion under Texas

practice filed by Southwestern Bell to change venue from

one county to another — in an unrelated Texas state court

action brought in 1968 by a different plaintiff, Jarvis v.

Southwestern Bell Tel. Co., 432 S.W.2d 189 (Tex. Civ. App.

1968). Plaintiffs construed the plea of privilege as alleg-

ing that Southwestern Beil was a Texas corporation. While

not disputing that Southwestern Bell is in fact a Missouri

corporation with its principal place of business in that state,

plaintiffs claimed that under the Texas state law doctrine

of judicial estoppel the company was estopped to rely upon

its undisputed Missouri citizenship to prove the existence

of diversity.

On April 27, 1976, Judge Spears granted the second

remand motion on the sole ground that “Southwestern Bell

is estopped to allege its Missouri domicile as a basis for

diversity jurisdiction in the instant case.” Gravitt v.

Southwestern Bell Tel. Co., 416 F. Supp. 830, 831 (W.D.

Tex. 1976); PA at A-19 to A-20. In so ruling, the district

judge did not contest Southwestern Bell’s Missouri citizen-

ship or change his previous findings that the statutory

requirements for removal were satisfied. Rather, his

ruling estopped Sonthwestern Bell to rely upon the undis-

puted jurisdictional facts because of “the needs of a broad

publie policy.” The district judge also stated that he had

been “bombarded . . . with numerous pretrial and discovery

matters” and that by remanding the case, justice was done,

“since the case will now be tried in the forum in which

it was originally filed, and where, except for the

bungling of plaintiffs [in amending their pleading

to dismiss the only resident defendant], it would

have remained.”

416 F. Supp. at 831-32; PA at A-19, A-21.

6

3. Mandamus proceedings. On July 9, 1976, a unani-

mous panel of the Court of Appeals for the Fifth Circuit,

upon the authority of this Court’s decision in Thermtron

Prod., Inc. v. Hermansdorfer, 423 U.S. 386 (1976), granted

defendants’ petition for a writ of mandamus requiring the

district court to vacate the remand order and retain juris-

diction of the action. See In re Southwestern Bell Tel.

Co., 535 F.2d 859 (Sth Cir. 1976); PA at A-9 to A-16. The

panel held that the doctrine of judicial estoppel, like other

non-statutory criteria, cannot be employed to defeat a

litigant’s constitutional and statutory right to a federal

forum; the panel therefore directed Judge Spears to

make “a suitable inquiry” into the parties’ citizenship to

determine whether it was “truly diverse”. 535 F.2d at

861; PA at A-15.

Judge Spears, and thereafter the plaintiffs, petitioned

the court of appeals for rehearing en banc, asserting that

the remand decision was immunized from appellate review

by 28 U.S.C. § 1447(d) (1970). On August 3, 1976, the

court of appeals granted the petitions for rehearing en

banc, 535 F.2d at 862; PA at A-15 to A-16. On November

12, 1976, after briefing and oral argument, the court of

appeals en banc, by an 8-2 vote, issued a per curiam

decision affirming issuance of the writ for the reasons

expressed in the panel opinion. In re Southwestern Bell

Tel. Co., 542 F.2d 297 (5th Cir. 1976); PA at A-1 to A-8.

However, because oral argument had “starkly revealed”

that there was no genuine issue of fact as to Southwestern

Bell’s Missouri citizenship, the en banc decision modified

the panel opinion to eliminate the necessity for a further

factual determination on that question. The en banc deci-

sion also admonished plaintiffs that “[t]his litigation

should not be impeded with any further efforts by [them]

to avoid federal jurisdiction on insubstantial grounds.”

542 F.2d at 298 n.1; PA at A-3 n.1.

Reasons For Opposing The Writ

This case does not satisfy any of this Court’s criteria for

granting review by writ of certiorari. See Sup. Ct. R. 19.

The question presented by the petition was settled by this

Court only last year in Thermtron Prod., Inc. v. Hermans-

dorfer, 423 U.S. 336 (1976). Contrary to petitioners’ asser-

tion, the court of appeals’ decision is not in conflict with this

Court’s decision in Thermtron, and the petition does not

allege that the court of appeals’ decision is in conflict with

the decision of any other circuit. Moreover, the conflict

asserted in the petition between the instant en banc decision

and vrior panel decisions by the same circuit does not

exist, and in any event would provide no basis for review

by this Court. Finally, the decision of the court of appeals

requiring the district court to adhere to the removal and

remand statutes is not a “depart{ure] from the accepted

and usual course of judicial proceedings,” Sup. Ct. R.

19(1)(b), which would warrant review by this Court.

The Decision Of The Court Of Appeals Is Not In

Conflict With Any Decision Of This Court.

This Court decided only last Term the question “whether

a Federal District Judge may remand a properly removed

diversity case for reasons not authorized by statute, and,

if not, whether such remand order may be remedied by writ

of mandamus.” Thermtron Prod., Inc. v. Hermansdorfer,

423 U.S. at 337.

In Thermtron, a district judge had remanded a removed

diversity action on the grounds that his calendar was

crowded and that in his opinion other kinds of cases were

more deserving of a federal forum. The court of appeals

8

denied a petition for a writ of mandamus, but this Court

reversed, stating that there was no contention that the

action was not timely removed or that the jurisdictional

prerequisites were not met.

“So far as the record reveals, it has not been ques-

tioned in this case that the cause is between citizens

of different States, that it involves a claim of over

$10,000 exclusive of interest and costs, that it is within

the so-called diversity jurisdiction of the District

Court and that it could have been initially filed in

the District Court.... It also seems common ground

that there is no express statutory provision forbid-

ding the removal of this action and that the cause

was timely removed in strict compliance with 28

U.S.C. § 1446.”

Id. at 344 n.8. Holding that “cases properly removed .. .

within the federal court’s jurisdiction may not be remanded

for discretionary reasons not authorized by the controlling

statute,” id. at 345 n.9, this Court concluded that the dis-

trict court had exceeded its statutory authority in remand-

ing the action, and that a writ of mandamus should

therefore issue. Id. at 345.

Thermtron rejected the argument that 28 U.S.C. 4 1447(d)

(1970) bars appellate review of all remand orders.

“Congress [n]Jever intended to extend carte blanche

authority to the district courts to revise the federal

statutes governing removal by remanding cases on

grounds that seem justifiable to them but which are

not recognized by the controlling statute. ... Because

the District Judge remanded a properly removed

case on grounds that he had no authority to con-

sider, he exceeded his statutorily defined power and

issuance of the writ of mandamus was not barred by

§ 1447(d).”

423 U.S. at 351.

Thus, under Z'hermtron, the only question properly

before the district court in the instant case was whether

the statutory criteria for removal contained in 28 U.S.C.

§§ 1332(a) and 1441(a) had been applied. Here, as in

Thermtron, there was no contention that diversity of citi-

zenship was lacking or that the statutory requirements for

removal were not satisfied. There is no dispute that South-

western Bell is a Missouri corporation with its principal

nlace of business in that state, and that plaintiffs seek

damages in excess of $10,000. The court of appeals’ en

banc opinion explicitly recognized that the facts regarding

Southwestern Bell’s corporate citizenship were “undis-

puted.” 542 F.2d at 298; PA at A-3.

The district judge did not question Southwestern Bell’s

Missouri citizenship or make any contrary findings of fact.

Instead, he invoked the Texas state law doctrine of

judicial estoppel to prevent Southwestern Bell from rely-

ing upon its undisputed Missouri citizenship for federal

jurisdiction purposes. His conclusion was based solely

on the plea of privilege filed eight years earlier by a South-

western Bell attorney in support of a motion to change

venue from one Texas county to another in an unrelated

state litigation, which he read as a false assertion that the

company was a Texas corporation.’

The district judge’s remand order thus comes precisely

within Thermtron’s holding because it is based on a ground

foreign to the removal statute, which under Thermtron pro-

vides the only permissible basis for remand. In this case,

as in Thermtron, the district judge did not look to whether

the statutory requisites for jurisdiction were present. In-

2. Whether the district judge’s reading of the 1968 plea of privi-

lege was correct is immaterial. The issue before the court o ———_

was whether, even a that his reading was correct, that plea

may estop Southwestern Bell from relying upon the true jurisdictional

facts regarding its citizenship for federal jurisdiction purposes.

10

stead, he set out to adjudicate whether a Southwestern

Bell lawyer had made a misrepresentation to a state court

in another case eight years earlier; and, having decided

in the affirmative, he then denied the company (as well as

another defendant not a party to the earlier action) its

statutory and constitutional right to a federal forum. By

assuming this power without swiutory authorization, the

district judge ran directly afoul of this Court’s prohibition

against attempting “to revise the federal statutes governing

removal by remanding . . . on grounds that seem justifiable

to [him] but which are not recognized by the controlling

statute.” Thermtron Prod., Inc. v. Hermansdorfer, 423

U.S. at 351. i

Judge Spears also referred in his remand order to other

extraneous factors of the type upon which the district judge

had relied in Thermtron. There the district judge re-

manded in order to grant plaintiffs “a speedy decision on

the merits of their cause” and because of the crowded con-

dition of his docket. Jd. at 340 & n.3. The order of remand

in the instant case recited that this action had been “virtually

monopolizing the time and energies of...[the] federal

court for almost a year,” and that “the parties have con-

stantly bombarded this Court with numerous pretrial and

discovery matters ...and there are no indications the case

is yet ready for trial.” 416 F. Supp. at 831; PA at A-19,

A-21. In addition, the remand order stated that justice was

served in remanding to plaintiffs’ forum of choice, since it

was only through what it termed “a fluke”—plaintiffs’

amendment of their pleading to delete the only resident

defendant—that the action became removable at all. 416 F.

Supp. at 831; PA at A-21.

The petition here argues that since 28 U.S.C. § 1447(c)

provides that cases may be remanded if they were removed

“ijmprovidently and without jurisdiction,” whenever a dis-

trict judge includes those words in his order the court of

11

appeals is automatically ousted of any authority to review

the propriety of remand.°

The short answer to this argument is that, despite peti-

tioners’ repeated assertion that the district judge “clearly

decided that the instant case was removed improvidently

and without jurisdiction” (Petition passim), the order of

remand does not contain any such language. Although the

district judge, relying upon the judicial estoppel doctrine,

said that the case was “improperly removed,” he nowhere

found or even stated that the action was “removed improvi-

dently and without jurisdiction,” and nowhere did he even

refer to 28 U.S.C. § 1447(c).

But even if the district court had recited the statutory

language of § 1447(c), Thermtron does not hold that the

district court’s obligation to adhere to the statutory

grounds for remand requires only that it incant the “magic

words” of the statute, or that by so doing it can avoid

review, when it is clear on the face of its decision that

it has applied non-statutory considerations. Petitioners’

position to the contrary would exalt form over substance

and trivialize this Court’s Thermtron decision into a game

of semantics without foundation in policy or reason.

Thermtron went beyond form to substance:

“lT ]his Court has not yet construed the . . . prohibi-

tion against review of remand orders so as to

extinguish the power of an appellate court to correct

a district court that has not merely erred in applying

the requisite provision for remand but has remanded

a case on grounds not specified in the statute and

not touching the propriety of the removal. We

decline to construe §1447(d) so woodenly as to

reach that result now.”

423 U.S. at 352. See also id. at 344.

3. In effect, petitioners suggest that had the district judge in

Thermtron merely recited those words at the end of his otherwise

unchanged opinion, this Court could not have ordered a writ of

mandamus to issue.

12

Petitioners also attempt to rely on Angel v. Bullington,

330 U.S. 183 (1947), and related cases* in support of their

contention that the district court properly relied upon the

state law doctrine of judicial estoppel to deny respondents

their statutory and constitutional right to a federal forum.

Petition at 12. Petitioners’ characterization of these cases

is erroneous. Those decisions hold only that a district

court exercising its diversity jurisdiction may not entertain

actions asserting substantive state law rights which cannot

be asserted in the courts of the forum state. On the

different question of the existence of diversity jurisdiction,

it is clearly established that the removal statute “must be

construed as setting up its own criteria, irrespective of local

law.” Shamrock Oil é Gas Corp. v. Sheets, 313 U.S. 100,

104 (1941). See also Mas v. Perry, 489 F.2d 1396, 1399 (5th

Cir.), cert. denied, 419 U.S. 842 (1974); Ziady v. Curley,

396 F.2d 873, 874 (4th Cir. 1968).

Under Thermtron, the district court’s function in deter-

mining whether to remand a case is confined solely to de-

termining whether the statutory criteria for diversity of

citizenship and the requisite jurisdictional amount are sat-

isfied. As to the existence of diversity of citizenship, Con-

gress has prescribed the exclusive standards for determin-

ing the citizenship of a corporation in 28 U.S.C. § 1332(c).

In light of the demonstrably correct application of the

Thermtron principle by the court of appeals, the petition

presents no occasion for review by this Court.

4. The petition also cites Woods v. Interstate Realty Co., 337

U.S. 535 (1949); Miller v. Davis, 507 F.2d 308 (6th Cir. 1974);

and Szantay v. Beech Aircraft Corp., 349 F.2d 60 (4th Cir. 1965).

13

Il.

There Are No Conflicting Decisions By Courts Of

Appeals.

There is no conflict between the decision which petition-

ers seek to have reviewed and that of any court of appeals

of another circuit, and petitioners do not allege that such a

conflict exists. Rather, petitioners assert that the en banc

opinion of the court of appeals is “completely contrary to

two prior | panel] decisions of the Fifth Circuit.” Petition

at 3.

The intra-circuit inconsistency asserted by petitioners is

demonstrably non-existent.’ Moreover, an intra-circuit in-

consistency, even if it did exist, would provide no basis for

review by this Court. Fed. R. App. P. 35(a) confers re-

sponsibility for the maintenance of intra-circuit uniformity

upon the court of appeals sitting en bane. In addition, this

Court has recognized that resolution of intra-cireuit incon-

5. Robertson v. Ball, 534 F.2d 63 (Sth Cir. 1976), cited by peti-

tioners, is fully consistent with the Fifth Circuit’s decision in the

instant case, because the district court there made an “express invo-

cation” of the statutory standards and remanded on the ground that

the action was not “ ‘one of which this court would have had original

jurisdiction ....’” Jd. at 65. There was no such finding by the

district court in the instant case and, indeed, the district court here

had already found that the case had been properly removed. The

standard of review applied by the Fifth Circuit in Robertson, as here,

was whether the district court had “consider[ed] the proper factors”

in deciding remand. 534 F.2d at 66 n.5.

London v. United States Fire Ins. Co., 531 F.2d 257 (Sth Cir.

1976), involved an attempt to review a remand by appeal, rather than

by mandamus. Further, the district court based its decision upon

the defendants’ failure to meet the thirty-day requirement for filing

a petition for removal, explicitly set forth in the statute. 28 U.S.C.

§ 1446(b) (1970). The statutory requirements for removal were

thus lacking, the action was not “properly removed,” and the decision

is completely consistent with the decision of the court of appeals in

this case. See Thermtron Prod., Inc. v. Hermansdorfer, 423 U.S. ai

343-44 & n 8.

14

sistencies is primarily the task of the courts of appeals en

bane and that it offers no occasion for review by this

Court . Wisniewski v. United States, 353 U.S. 901, 902

(1957). See generally R. Stern & E. Gressman, Supreme

Court Practice $4.6 (4th ed. 1969).

The Petition Does Not Involve A Departure From

The Accepted And Usual Course Of Judicial Proceed-

ings Warranting Review By This Court.

Throughout their papers, petitioners refer to the alleg-

edly dire consequences which will flow from the court of

appeals’ decision. They assert that the mandamus issued

in this case will open a “flood gate of litigation,” will

“create judicial havoc,” and will spell “ruin for future lit-

igants.” Petition at 5, 6, 13. Petitioners’ assertions are

baseless and provide no justification for review under Rule

19(1)(b) of this Court.

Orders by district courts remanding cases without seek-

ing to apply the proper statutory criteria are rare. More-

over, the circumstances involved in this case are unique

and not likely to recur. As noted by the court of appeals,

the doctrine of judicial estoppel had never before been

employed to defeat diversity jurisdiction. 535 F.2d at 861

n.8; PA at A-15 n.8. In light of the decision below, there is

little prospect of its future application for that purpose.

Only in the infrequent and exceptional instances where

remand orders are based upon non-statutory grounds will

mandamus be appropriate. The case poses no threat to the

orderly administration of justice.

Litigants may always file frivolous requests for relief.

But instances of frivolous requests for review may be easily

identified from the face of the district court’s order and the

A ee os eee eens a

15

petition for mandamus itself; and in such instances,

respondents need not even file an answer unless the court

of appeals so orders, Fed. R. App. P. 21(b). Moreover,

state proceedings are not automatically stayed pending

decision on a petition for mandamus, and the court of

appeals may summarily dispose of patently meritless

requests for relief. The true basis for petitioners’ “flood

gates” argument is not the decision below. Rather, what

petitioners seek here is reconsideration of the Thermtron

decision.

On a final note, the estoppel rationale of the district

court’s action in remanding on non-statutory grounds would

not only have denied Southwestern Bell its right to a fed-

eral forum in this case, but logically would have precluded

it in perpetuity from litigating both original and removed

actions in federal courts against Texas citizens on the basis

of diversity of citizenship. Judge Spears in his submissions

to the court of appeals asserted that Southwestern Bell

would be estopped to assert its Missouri citizenship solely

“(flor the purpose of this lawsuit”, but he provided no

rational basis for so limiting his ruling’s effect.

The court of appeals’ decision did no more than require

adherence to the statutory standards for remand, in accord-

ance with Thermtron. The decision was correct and does

not warrant review by this Court.

16

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

Of Counsel: LEONARD JOSEPH

F. Mark GARLINGHOUSE Harvey KurzweiL

195 Broadway Dewey, BALLANTINE, BusHBy,

New York, New York 10007 PALMER & Woop

Wayne E. BaBLer a wag |

1010 Pine Street oy Sam aw Uae Te

St. Louis, Missouri 63101 Husert W. GREEN

GREEN & KaurMAN, INc.

900 Alamo National Building

San Antonio, Texas 78205

Jack HEBDoN

Groce, Locke & HEBDON

2000 Frost Bank Tower

San Antonio, Texas 78205

Attorneys for Respondents

James E. BarpEN

1010 N. St. Mary’s Street

San Antonio, Texas 78215

February 28, 1977

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UNITED STATES DISTRICT COURT

Western District or Texas

San Antonio Division

Civil Action No. SA75CA117

er

Mrs. Oxveta Gravitt, Er Au.

v.

SoUTHWESTERN BELL TELEPHONE

Company, Er At.

Order

On this the 20th day of June, 1975, came on to be con-

sidered the request of the plaintiffs, Mrs. Oleta Gravitt,

individually and as Executrix of the Estate of T. O. Gravitt,

Deceased, Michael Gravitt, Patrick Gravitt, and James H.

Ashley, that this cause be certified for interlocutory appeal,

pursuant to 28 U.S.C. § 1292(b), which provides, in part, as

follows:

When a district judge, in making in a civil action an

order not otherwise appealable under this section,

shall be of the opinion that such order involves a

controlling question of law as to which there is a

substantial ground for difference of opinion and that

an immediate appeal from the order may materially

advance the ultimate termination of the litigation,

he shall so state in writing in such order.

The order involved, which was entered on June 5, 1975,

denied the plaintiffs’ motion to remand to the state court

the causes of action asserted herein by them. The plaintiffs

insist, in their request for certification, that the time and

effort expended in this litigation in the state court should

equitably prevail over the consequences of the filing of

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their first amended petition in that court. While un-

convinced that plaintiffs’ position is supported by compe-

tent legal authority, nevertheless, in view of the improvi-

dent filing of the amended petition by the Gravitt

plaintiffs; the six months of pretrial and discovery con-

ducted in the state court; the familiarity of the state judge

with the entire litigation; the setting of a definite trial date

in that Court; the inability of this Court to provide an

early trial date; the inordinate length of time that will be

required for the trial; the crowded condition of this Court’s

docket; the necessity, under Rule 50(b), F. R. Cr. P., and

the recently enacted Speedy Trial Act, that criminal

matters be given high priority in the federal courts; the

desirability, in the interest of judicial economy and sound

court administration, that the consequences of a Finn'

situation be avoided, if possible; and a realization that the

trend may be away from the trial of diversity cases in the

federal courts, this Court is of the opinion that the interests

of justice would be served by allowing an immediate appeal

from the order denying plaintiffs’ motion to remand.

Certainly, this could materially advance the ultimate ter-

mination of the litigation, and, in light of the liberal inter-

pretation placed upon § 1292(b) by the Fifth Cireuit Court

of Appeals,’ this Court certifies that a controlling question

of law as to which there is substantial ground for difference

of opinion is involved.

1. American Fire & Casualty Co. v. Finn, 341 U.S. 6, 13 (1951),

where the case was tried in federal court, but thereafter reversed by

the Supreme Court, because it had not been remanded to the state

court.

2. See: Hadjipateras v. Pacifica, S.A., 290 F.2d 697, 703-04 (5th

Cir. 1961), where the court held that the underlying purpose of the

statute is to circumscribe occasions in which judicial court time is

wasted, when the determination of identifiable factual or legal issues

would effectively dispose of the matter. Jd. at 703. To summarize,

the Court concluded that § 1292(b) should be treated with “con-

siderable flexibility . . . so that within reasonable limits disadvantages

of piecemeal and final judgment might both be avoided.” Jd. at 703.

+ a

Pheer oo -

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It is, accordingly, Onperep that the request of the plaintiffs

that this cause be certified for interlocutory appeal from

this Court’s Order of June 5, 1975, is hereby GranTEp.

Unless ordered to the contrary by the appellate court, the

pretrial and discovery procedures set forth in the Order

of June 5, 1975, shall proceed according to schedule.

Entered this the 20th day of June, 1975, at San Antonio,

Texas.

Aprian A. SPEARS

United States District Judge

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 75-8249

rm gi

Mrs. Oveta Gravitt, Et Au,

Petitioners,

versus

SouTHWESTERN BELL TELEPHONE

Company, Er At.,

Respondents.

On Application for Leave to Appeal from an

Interlocutory Order

Before CoLeMAN, ArnswortH and Srmpson, Circuit Judges.

BY THE COURT:

IT 1s onDERED that leave to appeal from the interlocutory

order of the United States District Court for the Western

District of Texas entered on June 20, 1975, is Deniep.