Petition — Bethlehem Steel Corp. v. United States District Court for the Central District of California

Supreme Court, U. &

~ FILED

| AUG 16 i977

| MICHAEL RODAK, JR., CLERK

Jn the Supreme Cour

OF THE

Gnited States

Octoser Term, 1977

BETHLEHEM STEEL Corporation, Petitioner,

v.

Unrrep States Districr Court FoR THE

CentTraL District or Catirornia, Respondent,

Daviy Montcomery Titus, a minor, by his

Guardian ad Litem, Denise Marre CurTHsBeErt,

Real Parties in Interest.

PETITION FOR A WRIT oF CERTIORARI TO THE

Unitep States Court or APPEALS FOR THE NiInTH Circuit

MicuagEt D. Dempsey

707 Wilshire Boulevard

Los Angeles, California 90017

213-620-9000

Attorney for Petitioner

Bethlehem Steel Corporation

TABLE OF CONTENTS

Page

GD I nc eed ances Dyess hate 2

FE eo i ie ge eA pr, CRE 2

So LD rs ea fay olen's ose'sies 2

Statutory Provisions Involved ................. 2

en I os, ey ea eae 3

Reasons Relied on for Allowance of for the Writ 6

1. The decisions of the District Court and of the

Court of Appeals conflict with applicable

decisions of this Court on federal court juris-

IR peg 3 GER o Denes Doane CF ag ine Dita? pages 6

2. The holding of the District Court and the ap-

proval of that holding by the Court of Ap-

peals, placed the Ninth Circuit in conflict with

dr i hee bac dene oes’ 7

3. The District Court’s refusal to grant peti-

tioner sufficient time to prepare a response

and to obtain a transcript of the State Court

proceedings which plaintiff claimed consti-

tuted the waiver violated the petitioner’s right

to Due Process of Law ................... —.

I Se Sa ers pot uae can nates Coreen 9

py RT Tae ee ee et ne ee ee? A-1

eee Pee ee re B-1

Certificate of Service

=

TABLE OF CITATIONS

/ Page

Cases

Armstrong v. Manzo, 380 U.S. 545, 552 (1965) .... 8

Gentle v. Lamb-Weston, Inc., 302 F.Supp. 161 (N.D.

IGN AR RD Reee a NSA ieee rot ee 9

Grannis v. Ordean, 234 U.S. 385, 394 (1914) ...... 8

Home Insurance Co. v. Morse, 20 Wall 445, 22 L.Ed.

Fe errr: rie rete rer )

Muller v. Lykes Coast Line, 144 F.Supp. 135 (8.D.

SC eA in oti Pha C ay Che wes 9

Powers v. Chesapeake & Ohio Railway Co., 169 U.S.

as irons cere aes Cee eA ss hs 6

Thermtron Products, Inc. v. Hermansdorfer, 423

GS ae ie ye rr ee er 6

Statutes

Ee eee ee 2

rae), ee dip bss Sea eee ties ee 2

RE ee es, a cena e ty dees 2, 4, 9

rn, ands vexwas Phas a awe Ks 3, 4

SiS a ae ee Se 2, 3, 6, 9

Se 2

Iu the Supreme Court

OF THE

Gnited States

Octoser Term, 1977

BeTHLEHEM STEEL Corporation, Petitioner,

v.

Unrrep States District Court FoR THE

CentraL District or CaLirornia, Respondent,

Dav Montcomery Tirvs, a minor, by his

Guardian ad Litem, Denise Marre Curnsert,

Real Parties in Interest.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The petitioner, Bethlehem Steel Corporation, Inc., re-

spectfully prays that a Writ of Certiorari issue to review

the order of the United States Court of Appeals made and

filed July 28, 1977.

—_ =

OPINION BELOW

There were no written opinions in either the District

Court or the Court of Appeals. The views of the District

Court were announced orally from the bench. A tran-

script of these views was submitted to Court of Appeals

and is part of the record there.

The District Court and the Court of Appeals issued

orders. These appear in the appendix hereto.

JURISDICTION

The order of the Court of Appeals was filed July 28,

1977. This Petition for a Writ of Certiorari is filed within

ninety (90) days of that date. This court’s jurisdiction is

invoked under 28 U.S.C. 4 1254(1) and 28 U.S.C. § 1651.

The District Court had jurisdiction pursuant to 28 U.S.C.

§ 1332 and 28 U.S.C. § 1441. The Court of Appeals had

jurisdiction pursuant to 28 U.S.C. § 1447 and 28 U.S.C.

§ 1651.

QUESTIONS PRESENTED

1. Whether the orders of the District Court and the

Court of Appeals, Ninth Circuit, conflict with a decision of

this Court.

2. Whether the rulings of the District Court and the

Court of Appeals, Ninth Circuit, conflict with a ruling of

the Court of Appeals, Fifth Circuit, in a similar case.

3. Whether the District Court’s refusal to grant peti-

tioner time to respond violated petitioner’s right to Due

Process of Law.

STATUTORY PROVISIONS INVOLVED

Jurisdiction and Venue — Actions Removable Gener-

ally —28 U.S. § 1441 (a) — “Except as otherwise ex-

pressly provided by Act of Congress, any civil action

brought in a State court of which the district courts of

a

the United States have original jurisdiction, may be re-

moved 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.”

Procedure for Removal — 28 U.S.C. § 1446 (a) —“A

defendant ... desiring to remove any civil action... from

a State court shall file in the district court of the United

States for the district and division within which such

action is pending a verified petition containing a short

and plain statement of the facts which entitle him . . . to

remove together with a copy of all process, pleadings

and orders served upon him... in such action. (b) ...If

the case stated by the initial pleading is not removable, a

petition for removal may be filed within thirty days after

receipt by the defendant, through service or otherwise,

of a copy of an amended pleading, motion, order or other

paper from which it may first be ascertained that the case

is one which is or has become removable.”

Procedure after Removal Generally — 28 U.S.C. § 1447

(c) — “If at any time before final judgment it appears

that the case was removed improvidently and without

jurisdiction, the district court shall remand the case and

may order the payment of just costs ... The State court

may thereupon proceed with such case. (d) An order

remanding a case to the State court from which it was

removed is not reviewable on appeal or otherwise... .”

STATEMENT OF THE CASE

David Montgomery Titus through his guardian ad

litem, both of them being California citizens, filed in the

Superior Court of the State of California for the County

of Ventura a case styled “David Montgomery Titus, a

minor, by his guardian ad litem, Edsel Lewis Titus, plain-

tiff, vs. G. E. Ramseyer, et al., defendants,” numbered

54822 in the files of that court. Plaintiff named several

—

individual defendants who were citizens and residents of

the counties of Ventura and Los Angeles, State of Cali-

fornia, and several fictitious John Doe defendants. Some

time after filing the original complaint, plaintiff amended

his complaint to add as an additional defendant the pe-

titioner, Bethlehem Steel Corporation. Well before June

28, 1977, all of the remaining fictitious John Doe defend-

ants were dismissed. At noon on June 28, 1977, the action

first became removable from the State Court to the United

States District Court when Plaintiff voluntarily dismissed

the last three defendants who were California residents

and citizens. That left as the only remaining defendant

this petitiener, a corporation incorporated in the State

of Delaware and with its principal place of business in

the State of Pennsylvania.

At 3:00 p.m. on June 29, 1977, approximately 27 hours

after the case first became removable, the petitioner

Bethlehem Steel Corporation filed a petition and bond for

removal in the United States District Court for the Cen-

tral District of California pursuant to and in strict com-

pliance with the provisions of 28 U.S.C. § 1441 and § 1446.

The case was there numbered 77-2407-MML. The District

Court had proper jurisdiction over the action, there being

no jurisdictional defects whatsoever in the removal.

Six days later, on Tuesday, July 5, 1977, at 9:00 a.m.,

plaintiff filed with the District Court an ex parte applica-

tion for an order shortening time to have the court hear

plaintiff’s motion to remand at 10:00 a.m. that day. A

hearing was held on the ex parte application to shorten

time at 10:00 a.m. Over petitioner’s objections, the order

was granted. The hearing on plaintiff’s motion to remand

started immediately. Counsel for the petitioner then

moved the court for a sufficient extension of time, prob-

ably not exceeding one or two days, in order to allow

it to file opposing affidavits and points and authorities,

and in order to allow it to obtain the record from the State

= a

Court on which plaintiff’s remand motion was based. The

District court denied the motion but ordered the hearing

recessed until 2:00 p.m. the same day. At that same time

the court indicated to the parties that it had made a tenta-

tive decision to grant plaintiff’s motion to remand on the

ground of a “waiver” of the right to remove. Thus, peti-

tioner was given only three hours to prepare for the hear-

ing on plaintiff’s motion to remand.

The parties went promptly before the court at 2:00 p.m.

on July 5. The hearing on plaintiff’s inotion actually be-

gan at 2:45 p.m. At that time petitioner renewed its re-

quest that the court grant it sufficient time to prepare

opposition and obtain from the State Court those por-

tions of the record on which plaintiff’s counsel based his

remand motion. The United States District Court denied

these requests and granted plaintiff’s motion, stating that

it “found a waiver in this matter.” The official transcript

of the hearing on the motion to remand shows that the

United States District Court clearly and unambiguously

remanded on the ground that the petitioner “waived” its

right to removal. Nevertheless, the order granting re-

mand as drafted by plaintiff’s counsel stated that the

case was remanded because it “was removed improvi-

dently and without jurisdiction, federal jurisdiction hav-

ing been waived... .”

On July 14, 1977, petitioner filed with the United States

Court of Appeals for the Ninth Circuit a Petition for

Writ of Mandamus and/or Petition for Writ of Prohibi-

tion, asking the Court of Appeals to order the District

Court to exercise its jurisdiction and retain the case, and

vacate its order to remand. On July 28, 1977, the United

States Court of Appeals issued an order that “Upon due

consideration, the temporary stay heretofore issued is

vacated, the motion for stay is denied, and the petition for

writ of mandamus is denied.”

a

REASONS RELIED ON FOR ALLOWANCE OF

FOR THE WRIT

1. The decisions of the District Court and of the Court

of Appeals conflict with applicable decisions of this Court

on federal court jurisdiction.

The holding of the District Court that the right to

exercise Federal jurisdiction through the removal statute

had been ”’waived”, and the Court of Appeals’ approval

of that holding, conflict with applicable decisions of this

court.

The decision below conflicts with this Court’s decision

in Powers v. Chesapeake & Ohio Railway Co., 169 U.S.

92 (1898) : “The existence of diverse citizenship, or other

equivalent condition of jurisdiction, is fundamental. The

want of it will be taken notice of by the court on its own

motion, and can not be waived by either party.” Id. at 98.

[Emphasis added]. The holdings below that jurisdic-

tional facts are subject to “waiver” conflicts with nearly

two hundred years of Federal judicial policy.

The decision below also conflicts with this court’s recent

decision in Thermtron Products, Inc. v. Hermansdorfer,

423 U.S. 336 (1976). There, the court held that the only

basis for remand of a diversity case to the State Court

from which it was removed is that set down in 28 U.S.C.

Section 1447(c) :

“The case was removed improvidently and without

jurisdiction...”

“Waiver” is not a basis for remand. The only permitted

basis for remand is that the case was removed improvi-

dently because there is no jurisdiction. Here, there would

be no jurisdiction only if there was no diversity of

citizenship, less than $10,000 was at issue or the thirty

(30) day removal time limit imposed by the statute had

expired.

ig ans

The respondent District Court and the Real Party in

Interest conceded that there was jurisdiction in the

United States District Court. There was no argument

that there was no diversity of citizenship. There was no

argument that less than $10,000 was in controversy.

There was no argument that the case was removed after

the statutory time limit. The only argument was that

Federal jurisdiction had been “waived.” This argument,

and the orders of the courts below based on it, conflict

with the decisions of this Court discussed above.

2. The holding of the District Court and the approval

of that holding by the Court of Appeals, placed the Ninth

Circuit in conflict with the Fifth Circuit. The holding of

the United States District Court for the Central District

of California and the approval of that holding by the

United States Court of Appeals for the Ninth Circuit,

conflicts with the holding of the United States Court of

Appeals for the Fifth Circuit in In Re Southwestern Bell

Telephone Co., 535 F.2d 859 (5th Cir. 1976). The Fifth

Circuit held that the District Court could not use the

similar doctrine of “judicial estoppel” as the basis for

holding that a case was removed “improvidently and with-

out jurisdiction” within the meaning of 28 U.S.C. 4 1447

(c). Unlike the Ninth Circuit, the Fifth Circuit followed

this Court’s decision in 7’hermtron and issued a writ of

mandamus directing the District Court to vacate its re-

mand order. In discussing the doctrine of “judicial estop-

pel” the Fifth Circuit stated that: ©

“Whatever the scope of the doctrine may be so far

as we have been able to discover, it has never been

employed to prevent a party from taking advantage

of a federal forum when he otherwise meets the

statutory requirements of federal jurisdiction. Per-

sons who meet those criteria have a statutory, and

indeed a constitutional, right to resort to the Federal

Courts. A District Court has no authority to negate

a

the right simply because such a person has not ob-

served the consistency in pleading that the forum

state may demand. Judicial estoppel principles can-

not conclusively establish jurisdictional facts.” Id.

at 861.

3. The District Court’s refusal to grant petitioner suffi-

cient time to prepare a response and to obtain a transcript

of the State Court proceedings which plaintiff claimed

constituted the waiver violated the petitioner’s right to

Due Process of Law.

At 9:00 a.m. on Tuesday, July 5, 1977 counsel for peti-

tioner received a telephone notice from the Clerk of the

District Court that at 10:00 a.m. the court would hold a

hearing on an ex parte motion by plaintiff to have

the time in which to make his remand motion shortened.

At 10:00 a.m. counsel for petitioner appeared in the Dis-

trict Court and was then for the first time served with

copies of the ex parte motion for an order shortening

time and with the remand motion. Although counsel for

petitioner objected that he needed time in which to make

a response and obtain the necessary affidavits and tran-

scripts with which to meet plaintiff’s motion, the objec-

tion was overruled and a hearing on the remand motion

set for 2:00 p.m. that same day. The hearing on the

motion to remand went ahead at 2:00 p.m. that day over

renewed objections by petitioner’s counsel that a hearing

on such short notice effectively prevented him from pre-

senting a response. The objections were overruled and

the motion to remand granted.

As this Court has held, “a fundamental of due process

is ‘the opportunity to be heard.’ ” Grannis v. Ordean, 234

U.S. 385, 394 (1914). This “is an opportunity which must

be granted at a meaningful time and in a meaningful man-

ner.” Armstrong v. Manzo, 380 U.S. 545, 552 (1965). The

hearing on the motion was not at a meaningful time nor

in a meaningful manner.

=

The actions of the District Court, and the Court of

Appeals’ approval of those actions, conflict with this

court’s many devisions on due process. A hearing on only

three hours notice is not held at a meaningful time. A

hearing without petitioner being able to present opposi-

tion is not one held in a meaningful manner.

CONCLUSION

The right of an unsympathetic out-of-state defendant

to remove a case from the State Court to a Federal Court

is clear, unambiguous and valuable. It is one which must

jealously be guarded and protected by the Federal Courts.

Home Insurance Co. v. Morse, 20 Wall 445, 22 L.Ed. 365

(1874); Muller v. Lykes Coast Line, 144 F.Supp. 135

(S.D. Texas 1940); Gentle v. Lamb-Weston, Inc., 302

F.Supp. 161 (N.D. Fla. 1969). The actions of the District

Court and the Court of Appeals violate the clear and

unambiguous provisions of 28 U.S.C. § 1441 and § 1447,

conflict with this Court’s holding in Thermtron, and con-

flict with the Fifth Circuit’s holding in Southwestern Bell.

The decisions of the District Court and the Court of

Appeals violate petitioner’s constitutional and statutory

rights to have this case heard by a Federal Court.

The decision of the District Court and the Court of

Appeals’ approval of that decision creates a manifest in-

justice and inequity, violates the Constitutional and

Statutory rights of the petitioner, refuses to recognize

federal jurisdiction, and violates petitioner’s right of due

process. A writ of certiorari should issue to review the

order of the Ninth Circuit herein.

Respectfully submitted,

MicHae. D. Dempsey

By

Mica. D. Dempsry

Attorney for Petitioner

Bethlehem Steel Corporation

aii.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Davip Montcomery Titus, a minor,

by his Guardian ad Litem,

Epsex Louis Trrvs, No. 77 2409 MML

Plaintiff, ORDER

GRANTING

” REMAND

G. E. Ramseyer, et al.,

Defendants.

The motion of DAVID MONTGOMERY TITUS, plain-

tiff, for an order to remand the above-entitled action to

the Superior Court of the State of California for the

County of Ventura, came on regularly for hearing on July

5, 1977, upon an Ex Parte Application for an Order

Shortening Time, and this Court setting the motion for

hearing on the same date. Gregory S. McDougall, of

ARCHBALD & SPRAY, appeared as counsel for plain-

tiff and Michael D. Dempsey, of LILLICK, McHOSE &

CHARLES, appeared as counsel for defendant, BETH-

LEHEM STEEL CORPORATION. This Court having

considered affidavits in support of the motion, and having

heard the argument of counsel, and being fully advised,

and it appearing to this Court that the case was improp-

erly removed to this Court in that the case was removed

improvidently and without jurisdiction, federal jurisdic-

tion having been waived by defendant, BETHLEHEM

STEEL CORPORATION.

IT IS HEREBY ORDERED that the plaintiff’s motion

be and the same is hereby granted, and that this case be

remanded to the Superior Court of the State of Califor-

im

nia for the County of Ventura; and that a certified copy

of this order be mailed by the Clerk of this Court to the

Clerk of the Superior Court of the State of California

for the County of Ventura;

IT IS FURTHER ORDERED that plaintiff have and

recover his costs and disbursements in this Court against

defendant, to be taxed by the Clerk.

DATED: January 7, 1977

/s/ LUCAS

United States District Judge

Disapproved as to Form: Objections coming per local

rules.

LILLICK, McHOSE & CHARLES

By:

Michael D. Dempsey

Prepared by ARCHBALD & SPRAY

By: GREGORY S. McDOUGALL

Gregory S. McDougall

=

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BETHLEHEM STEEL CoRPORATION,

Petitioner,

No. 77-2559

vs.

Unitep States District Court FOR THE

CENTRAL District oF CALIFORNIA,

ORDER

Respondent,

Davip Montcomery TirTvs, a minor,

by his Guardian ad Litem,

Denise Marre CuTHBERT,

Real Parties in Interest.

Upon due consideration, the temporary stay heretofore

issued is vacated, the motion for stay is denied, and the

petition for writ of mandamus is denied.

/s/ ELLY

Circuit Judge

/3s/ GOODWIN

Circuit Judge

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