# Opposition — Gravitt v. Southwestern Bell Telephone Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1977
- **Citation:** 430 U.S. 723

## Text

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

A-1

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

A-2

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 -

A-3

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1283%3A2. Public record. Not legal advice.