Petition — Volkswagenwerk AG v. Herman
Supreme Court brief1978
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FILED
APR 26 i978
tier RODAK, JR,, CLERK
IN THE
Supreme Court of the United States
| October Term, 1978
No. 97-1537
VOLKSWAGENWERK ARTIENGESELLSCHAFT ard
VOLKSWAGEN OF AMERICA, INC.,
Petitioners
V.
THE HONORABLE R. DIXON HERMAN, JUDGE
OF THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA,
SELDON P. TODD, JR., CAMERON AUTO, INC.
and VOLKSWAGEN ATLANTIC, INC.,
Respondents.
PETITION FOR Writ OF CERTIORARI
To THe UnNrrep States Court or APPEALS
FoR THE THirp Circuit
Cari A. Eck, Esquire
ANprew J. Banyas, III, Esquire
MicuHak V. GILBErti, EsQumrE
MEYER, DARRAGH, BUCKLER,
BEBENEK & ECK
Attorneys for VOLKSWAGENWERK
AKTIENGESELLSCHAFT and
VOLKSWAGEN OF AMERICA, INC.
2500 Grant Building
Pittsburgh, Pennsylvania 15219
OF COUNSEL
Herzrecp & Rusin, P.C.
40 Wall Street
New York, New York 10005
Financial Press Corporation, Pittsburgh
—
INDEX TO PETITION
Page
Ecc ieee deenedeageedeeesneees 2
| EE Sah itdddinhncscedseadsncdasssene 2
QUESTIONS PRESENTED ....ccccccccccccccscces 2
re 3
UCR R NSE CO BUM GAMES cv ccccccccccccceccecs 3
REASONS FOR ALLOWING THE WRIT........... 6
i iidtceleetucs cukecedesdeesannasaces 14
INDEX TO APPENDIX
1. Docket entries of U.S. Court of Appeals
for the Third Judicial Circuit ................... la
2. Docket entries of U.S. District Court for the
Middle District of Pennsylvania ................. 2a
3. Docket entries of U.S. District Court for the
ie de ceadeeecnhens 15a
4. Petition of Voikswagenwerk Artiengesellschaft
and Volkswagen of America, Inc. for Writ of
| NS GI TIED 5 oc Ss di wedccccccaceces 18a
Exhibit A — Memorandum and Order of
Judge R. Dixon Herman dated
| I Ed od icakecenat eases 26a
Exhibit B — Motion for Reconsideration
of Volkswagenwerk
Artiengesellschaft and Volkswagen
~ FSS 34a
Exhibit C — Memorandum and Order of
Judge R. Dixon Herman dated
ER EE ET nKKb oéwetccsecivees 4la
i
Index to Appendix
Exhibit D — Motion on Behalf of
Exhibit E —
Defendants Volkswagenwerk
Artiengesellschaft and Volkswagen
of America, Inc. to Amend its
Order in Compliance with Rule
54(b) of the Federal Rules of
Civil Procedure and to Certify
its Interlocutory Order under
Se es ED cscs ceeecesaves 49a
Order of Judge R. Dixon
Herman denying motion to certify
interlocutory order of August
15, 1977 under 28 U.S.C.
§1292(b) and Rule 4(b) of the
Federal Rules of Civil Procedure
dated January 3, 1978.............. 56a
Table of Citations
TABLE OF CITATIONS
CASES
Boughton v. Shoulders, 116 F. Supp. 391
i ee eee k cis hbeennee ets
Brown v. Merrow Machine Co., 411 F. Supp. 1161
ES Ey me ee a
Carson v. U-Haul, 434 F.2d 916 (6th Cir. 1970) ....
Jones v. Rabinowitz, 296 F. Supp. 123
SS PRU a a6vbeedenvecckedcdcdvvesess
Swindell-Dressler Corp. v. Dumbauld,
308 F.2d 267 (3d Cir. 1962) ...............00.
Van Dusen v. Barrack, 376 U.S. 612 (1964) ........
STATUTE
A Eee Te Tee TTT TT TTT ee
ili
In THE
Supreme Court of the United States
October Term, 1978
No.
VOLKSWAGENWERK ARTIENGESELLSCHAFT and
VOLKSWAGEN OF AMERICA, INC.,
Petitioners
Vv.
THE HONORABLE R. DIXON HERMAN, JUDGE
OF THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA,
SELDON P. TODD, JR., CAMERON AUTO, INC.
and VOLKSWAGEN ATLANTIC, INC.,
Respondents.
PETITION FOR Writ OF CERTIORARI
To THe Unrrep States Court oF APPEALS
FOR THE THIRD Circuit
TO: The Honorable the Chief Justice and
the Associate Justices of the Supreme
Court of the United States
Petitioners, Volkswagenwerk Aktiengesellschaft and
Volkswagen of America, Inc., petition this Court for a writ
of certiorari to review the judgment of the United States
Court of Appeals for the Third Circuit.
9 Opinions Below, Jurisdiction &
Questions Presented
OPINIONS BELOW
None of the memoranda or orders in these actions were
reported. The order of the United States Court of Appeals
for the Third Circuit, denying petitioners’ application for a —
writ of mandamus, contains no opinion and is printed in the
appendix to this petition. Similarly, the memoranda and
orders of respondent, Judge R. Dixon Herman, dated
January 3, 1978 (denying petitioners’ motion to certify the
interlocutory order of August 15, 1977 under 28 U.S.C.
§1292(b) and Rule 54(b) of the Federal Rules of Civil
Procedure); August 15, 1977 (denying petitioners’ motion for
reconsideration of the court’s order of january 10, 1977); and
January 10, 1977 (denying petitioners’ motions for summary
judgment and retransferring the case to the District of
Columbia) are contained in the appendix.
JURISDICTION
This Court has subject matter jurisdiction to review the
Third Circuit’s order of January 27, 1978 (see appendix)
denying petitioners’ application for a writ of mandamus.
QUESTIONS PRESENTED
I. WHETHER CONSIDERATIONS OF FUNDAMEN-
TAL FAIRNESS DEMAND THAT A DISTRICT
COURT APPLY THE SAME LEGAL PRECEPTS TO
ALL DEFENDANTS WITHIN THE SAME CLASS
WHEN THE PLAINTIFF INSTIGATES A CHANGE
OF VENUE?
Il. WHETHER IN TRANSFERRING THE CASE SUA
SPONTE AND WITHOUT FIRST AFFORDING THE
PROCEDURAL SAFEGUARDS OF NOTICE AND
AN OPPORTUNITY TO BE HEARD, THE DISTRICT
COURT OFFENDED PETITIONERS’ RIGHT TO
DUE PROCESS UNDER LAW?
Statute Involved & 3
Statement of the Case
STATUTE INVOLVED
This case involved 28 U.S.C. §1404(a), which provides:
“For the convenience of parties and witnesses, in the
interest of justice, a district court may transfer any civil
action to any other district or division where it might
have been brought.”
STATEMENT OF THE CASE
On January 10, 1977, United States District Judge R.
Dixon Herman of the Middle District of Pennsylvania
entered an order (1) denying petitioners’ motions for
summary judgment and (2) retransferring the case to the
District Court for the District of Columbia. Originally, the
plaintiff had filed suit in the District Court for the District of
Columbia, but encountering various procedural difficulties
he voluntarily and successfully instigated and secured a
transfer to the Middle District of Pennsylvania, premised
upon 28 U.S.C. §1404(a). As a result of Judge Hennan’s
order, petitioners applied to the United States Court of
Appeals for the Third Circuit for a writ of mandamus,
asserting that, in (1) refusing to apply Pennsylvania's two-
year statute of limitations for personal injuries — the law of
the transferee forum — when the plaintiff voluntarily had
the case transferred from Washington, D.C. to Pennsylvania,
and (2) retransferring the action to the District of Columbia
without notice or an opportunity to be heard, the district
judge had exceeded his authority. The court of appeals
denied that petition, and as a result, petitioners have applied
for certiorari.
This controversy arises out of an automobile accident of
January 24, 1973, which occurred on Fifteenth Street, N.W.,
in Washington, D.C. Seldon P. Todd, Jr., the original
plaintiff, while proceeding northward on the one-way, six-
4 Statement of the Case
lane highway, attempted to make a left turn across traffic
from the right lane. At that point, a car owned and operated
by Calvin J. Verrett struck his automobile on the left door
causing damage to the car and injuries to Todd. Asa result of
the accident, Todd instituted a diversity action! on July 31,
1975 — two and one-half years after the accident — against
four named defendants? in the District Court for the District
of Columbia.’ He attempted to obtain personal jurisdiction
over Volkswagen Atlantic through Washington's “long-arm”
statute, D.C. Code §§13-423(a) and 13-431(a)(3). However,
Volkswagen Atlantic moved to quash the service as
improper and to dismiss the case for lack of personal
jurisdiction. On September 25, 1975, that district court
granted those motions. Thereafter, plaintiff moved, pur-
suant to 28 U.S.C. §1404(a), voluntarily to transfer the action
from the District of Columbia to the federal District Court
for the Middle District of Pennsylvania, and on September
26, 1975, he was successful: Judge Pratt transferred the case.
Once in the Middle District of Pennsylvania, Todd
attempted again to gain valid service over Volkswagen
Atlantic and apparently was successful. But once again, that
defendant took action to have the case dismissed.
Looking to the district court complaint: it was alleged
that the plaintiff had purchased the car, which is the subject
‘Jurisdiction in the United States District Court was predicated upon
diversity of citizenship and an amount in controversy exceeding
$10,000.00. 28 U.S.C. $1332.
"Volkswagen Aktiengesellschaft, a West German corporation with its
principal place of business in West Germany; Volkswagen of America,
Inc., a New Jersey corporation with its principal place of business in New
Jersey; Volkswagen Atlantic, Inc., a Delaware corporation with its
principal place of business in Pennsylvania; and Cameron Auto, Inc., a
Pennsylvania corporation with its principal place of business in Penn-
sylvania.
‘The original action in the United States District Court for the District
of Columbia was docketed at Civil Action No. 75-1255.
Statement of the Case 5
matter of this litigation, from Cameron Auto on May 23,
1968; and that the accident occurred on January 24, 1973.4
Because the suit was not commenced until July 31, 1975 —
more than two and one-half years after the accident — all of
the defendants moved for summary judgment, invoking the
Pennsylvania two-year statute of limitations regarding
personal injury actions, 12 P.S. §34,° and four-year statute of
limitations relating to actions for breach of warranty, 12A
P.S. §2-725. On January 10, 1977, after all parties had
submitted briefs, but without benefit of oral argument
(though petitioners had requested it) or opportunity for
rebuttal, Judge Herman granted Volkswagen Atlantic’s
motion for summary judgment on the ground that “the two-
year Pennsylvania statute of limitations barred the action
against Volkswagen Atlantic ...” and denied those of the
remaining defendants because “the action had been begun
and service made within the three-year limitations of the
District of Columbia”. At the same time, “[c]oncluding that
the interests of justice would be best served if plaintiff were
permitted to pursue his claims against [the remaining
defendants] in the forum he had initially selected”, the court
“retransferred” the case to Washington — furnishing the
remaining defendants neither notice nor an opportunity to
be heard on that issue.
Subsequently, the petitioners muved for reconsidera-
tion of that decision om two bases:
1. The simultaneous granting of Volkswagen Atlan-
tic’s motion and the denial of the remaining
‘After the case was transferred to the Middle District of Pennsylvania,
all parties engaged in extensive discovery on the issues of liability and
damages.
5Pennsylvania would apply its own two-year statute of limitations [12
P.S. §34], rather than the three-year District of Columbia statute
irrespective of the substantive law or situs of the’ accident. Jones v.
Rabinowitz, 296 F. Supp. 123 (E.D. Pa. 1969).
6 Reasons for Allowing the Writ
defendants’ motions distinguish between defen-
dants in the same class thereby denying the
remaining defendants equal protection; and
2. The retransfer of the case without a formal motion,
notice or hearing constituted a denial of due
process under the Fifth and Fourteenth Amend-
ments of the Constitution.
In its memorandum of August 15, 1977, the district court
refused to reconsider these matters, stating that it lost
jurisdiction once it had forwarded the case file to the District
of Columbia court.®
Thereafter, |Volkswagenwerk Aktiengesellschaft
(VWAG) and Volkswagen of America, Inc. (VWoA) timely
filed motions for certification of questions of law under 28
U.S.C. §1292(b) and to amend the January 10, 1977, order to
comply with Rule 54(b) of the Federal Rules of Civil
Procedure. On January 3, 1978, the district judge, without
opinion, denied these motions.
On January 18, 1978, petitioners sought a writ of
mandamus from the United States Court of Appeals,’ and on
January 27, 1978 — without opinion and citing no reasons —
that court (per Gibbons, J.) denied the petition. In response
to this denial, VWAG and VWoA have petitioned this court
for certiorari.
REASONS FOR ALLOWING THE WRIT
I. This case involves an important question concerning
the application of federal law which was expressly left
‘Despite this statement, the docket entries indicated that the District
Court for the Middle District of Pennsylvania had had possession of the
case at the time it made its August 15, 1977 decision.
"Jurisdiction of the Court of Appeals was based upon 28 U.S.C. §1651,
investing that court with subject matter jurisdiction over writs of
mandamus. See Swindell-Dressler Corp. v. Dumbauld, 308 F .2d 267 (3rd
Cir. 1962)
Il.
ILL.
IV.
Reasons for Allowing the Writ 7
open for future determination in Van Dusen v.
Barrack, 376 U.S. 612 (1964). This important question
is ripe for decision.
The decision of the District Court below conflicts with
the decisions which other federal courts in other
circuits have decided. See, Carson v. U-Haul, 434 F.2d
916 (6th Cir. 1970); Brown v. Merrow Machine Co., 411
F. Supp. 1161 (D. Conn. 1976). As a result, to avoid a
further widening of the split among the circuits, this
Court should resolve the question of federal procedure
which directly affects substantive law applied in the
case.
Unless this Court grants this petition and affords
review, the error below will escape all review and will
be unremedied. As a result, the petitioners will be put
to the undue expense, inconvenience and harassment
of litigating a barred action in a forum which was
ultimately chosen by none of the litigants.
Petitioners’ constitutional rights of due process and
equal protection have been severely impaired by the
District Court's failure to apply the same legal precept
to defendants of identical situation. Accordingly,
petitioners’ sole remedy lies with this court.
. Sua sponte retransfer of the suit against only part of the
litigants, without a motion or opportunity to be heard,
contravenes due process and is remediable only at this
stage of the proceedings. The District Court's initial
order transferring the case was in excess of the judge’s
authority; the judge refused to correct this error on
reconsideration by ratifying his earlier decision; and, if
this court fails to take the case for review, the initial
erroneous act will go unremedied.
8 Reasons for Allowing the Writ
VI. The decision of the District Court encourages forum
shopping on stale, time-barred claims at a time when
the federal diversity dockets are overcrowded.
VII. Petitioners will be denied the presence of codefen-
dants who stand on equal footing with them, vis-a-vis
the plaintiff, because the codefendants have been
dismissed with prejudice on grounds which justify the
dismissal of petitioners as well.
All of these stated reasons may be resolved to the two
following fundamental principles.
I. The considerations of fundamental fairness de-
mand that a change of venue instigated by the
plaintiff be accompanied by a change of the
applicable state law, including the appropriate
statute of limitations.
What law controls — that of the transferor or that of the
transferee forum — when the plaintiff, after choosing the
initial venue for litigating his cause, at some later point
voluntarily instigates and succeeds in securing a transfer to
another district court where the case might originally have
been brought? Van Dusen v. Barrack, 376 U.S. 612 (1964),
settled the question of which law applied when a defendant
secures a change of venue. However, the Supreme Court
reserved the law-applicable issue when a _ plaintiff is
responsible for a transfer.
“A change of venue under §1404(a) [secured by a
defendant] generally should be, with respect to state
law, but a change of court rooms ... In so ruling,
however, we do not and need not consider whether in
all cases §1404(a) would require the application of the
law of the transferor, as opposed to the transferee, State.
We do not attempt to determine whether, for example,
the same considerations would govern if a plaintiff
sought transfer under §1404(a) ... .”
376 U.S. at 639-640.
Reasons for Allowing the Writ 9
In this language, this Court has acknowledged that tota’ly
different considerations may govern plaintiff-acquired
transfers. In response to this invitation, petitioner presents
just such compelling considerations. |
Plaintiff, in the first instance, has the opportunity to
select the forum in which he desires to conduct the dispute,
and traditionally his choice has been given deference. By the
initial choice he may, to some extent, fix the law and
procedures under which the case will be tried, thereby
gaining an advantage over the defendants — especially
where the choice of law provisions involve precepts in his
favor.
In transferring the case, he seeks yet a second
advantage, while attempting to retain the first. This case
presents a good example. Here the plaintiff began his action
in Washington, taking advantage of its longer statute of
limitations for personal injury. Thereafter, finding that a
defendant was unavailable for service in the District of
Columbia, he desired not only to retain that statute of
limitations, but to obtain service over the missing defendant.
In all of these manipulations, the remaining defendants were
dragged from the plaintiff's first choice of forum — in which
the plaintiff had one advantage — to his next choice —
where he attempted to gain a second advantage.
Through all of these machinations, the defendants, who
gain nothing, are at the mercy of a scheming plaintiff and
thereby are prejudiced. In this instance, a second transfer
effected by the court sua sponte, only further served to
shield the plaintiff from his own poor choice — once again to
the detriment of the defendants. This Court should not
countenance such conniving and, for these reasons, should
resolve the issue against the plaintiff.
Although these considerations have not reached the
Supreme Court, the lower courts *vhich have examined them
have resolved them adversely to the manipulating plaintiff.
10 Reasons for Allowing the Writ
Carson v. U-Haul Co., 434 F.2d 916 (6th Cir. 1970),
confronted the exact issue presented here in the context of a
statute of limitations. Plaintiffs, citizens of Georgia,
sustained personal injuries in an automobile accident which
occurred in Kentucky and involved non-Georgia defend-
ants.
After unsuccessful attempts to obtain service of process
over any of the three defendants in the action instituted in the
Georgia federal court,® the plaintiffs moved for a transfer to
the Eastern District of Kentucky, the situs of the accident
where an original action might have been brought; and the
district court transferred the case. Upon arrival in the
Kentucky federal court, service was effected and defend-
ants moved to dismiss on the grounds that the one-year
Kentucky statute of limitations, rather than the two-year
Georgia statute controlled — the complaint having been
filed about one and one-half years after the occurrence. The
district judge, relying on a western Kentucky federal
decision, Boughton v. Shoulders, 116 F. Supp. 391 (W.D. Ky.
1953), applied the transferee [Kentucky] state’s statute of
limitations, which effectively barred the action even before
it was begun in the transferor [Georgia] state. The Sixth
Circuit affirmed that decision, denouncing the plaintiffs’
approach as an attempt at forum shopping.
On appeal, the plaintiffs had relied heavily on Van
Dusen v. Barrack, supra, where the law of the transferor
state had been selected and applied on the basis that the
transfer was nothing more than a. Lange in courtroom cad
not in applicable law. However, the Court of Appeals
‘The plaintiffs tried to obtain service on U-Haul and Aroca in the
Georgia district court by serving the Secretary of that state, arguing that
the corporations were doing business in Georgia. They were 1.na! 'e to
obtain service at all upon Gracey.
+ ~.2F
Reasons for Allowing the Writ 11
accepted the Van Dusen invitation and weighed the other
compelling concerns. Logically, that court explained:
“We can see a good reason for transfer where it is done
for convenience, or in the interest of justice to permit
service of process to be obtained on a party. Such a
transfer, however, should not prejudice the fundamen-
tal rights of either party.
“But here the plaintiffs want more than merely to obtain
service of process in Kentucky upon parties apparently
not subject to service of process in Georgia; they want to
continue to retain Georgia as a forum state in order to
apply that state’s longer statute of limitations ... if
plaintiffs had filed suit in Kentucky instead of in
Georgia, the Kentucky statute of limitations would have
barred the claims. To allow the procedure which
plaintiffs are now attempting to invoke would en-
courage forum shopping.” (emphasis supplied)
434 F.2d at 918.
In addition to these overwhelming factors, one other cogent
reason demanded the application of the transferee’s law:
“There would have been no problem here if Kentucky’s
statute of limitations had not run before the suits were
filed in Georgia. Such filing would have tolled the
Kentucky statute of limitations if it had not already
run...
“We do not question the validity of the transfer here. We
hold that since the transfer was at the request of the
plaintiffs, Georgia was no longer the forum state.
Kentucky became the new forum state and its statute of
limitations controlled.”
434 F.2d at 918.
Within this language, one fundamental truth is manifest: the
plaintiff's instigation of a transfer, for whatever reason it is
affected, severs whatever relationship the suit had with the
12 Reasons for Allowing the Writ
transferor court and substitutes the transferee’s law as if the
case were filed there initially. Thus, having the benefit of the
initial choice of forum, the plaintiff cannot leapfrog the case
from district to district to the defendant's prejudice. See also,
Brown v. Merrow Machine Co., 411 F. Supp. 1161
(D. Conn. 1976).
In order to guarantee fairness in litigation, this court
should adopt the position that the plaintiff transferred at his
own peril: if, at his instance, a case becomes situated in an
unsatisfactory or judgmental location, he must accept the
consequences.
Il. A transfer without the requisite procedural
safeguards of notice and an opportunity to be
heard is void ab initio and offends due process.
While 28 U.S.C. §1404(a) permits a change of venue
“(flor the convenience of the parties and witnesses, in the
interest of justice”, before so doing, a district court must first
afford the resisting parties due process. In Swindell-Dressler
Corp. v. Dumbauld, 380 F.2d 267 , 273-274 (3d Cir. 1962), the
Third Circuit adopted procedural requirements for granting
a transfer motion:
“In denying Swindell any hearing or opportunity for
hearing the court below denied it procedural due
process of law guaranteed to it by the Fifth Amend-
ment. We point out that there was neither motion nor
petition pending for transfer . . . The plain and unsubtle
fact which is paramount here is that there was no notice
or hearing before the order . .. purporting to affect the
transfer ... “The right to notice and hearing is one of
ancient origin and by due process clauses of the 5th and
14th Amendments has been safeguarded to all against
deprivation by the federal government and the states
respectively.”
Reasons for Allowing the Writ 13
Irrespective of whether there was a transfer motion before
the court, it cannot be gainsaid that, at the very least, notice
and an opportunity to be heard are constitutionally demand-
ed.
In this instance, the court merely sua sponte — without
motion, without notice, and without an opportunity for a
hearing — purported to retransfer the case from the Middle
District of Pennsylvania to the District of Columbia, thereby
denying petitioners due process of law.
This becomes significant in light of the choice of law
argument. If the transfer is void ab initio, then the proper
forum is Pennsylvania and, before the district court may
reach the motion to transfer, it must determine the choice of
law problem.
United States Court of Appeals |
14 Conclusion
CONCLUSION For THe Tuirp Circurr
The considerations of fundamental fairness demand
that a change of venue instigated by the plaintiff be No. 78-1075
accompanied by a change of the applicable state law,
including the appropriate statute of limitations. VOLKSWAGENWERK ARTIENGESELLSCHAFT and
Further, before any transfer can be properly granted, VOLKSWAGEN OF AMERICA, INC.,
the District Court must first afford the procedural Petitioners,
safeguards of notice and an opportunity to be heard or else ii
deny a party’s rights to due process under the law.
THE HONORABLE R. DIXON HERMAN,
AnpRrEw J. Banyas, III, Esquire SELDON P. TODD, JR., CAMERON AUTO, INC.
Micha. V. Casennt, SEQ and VOLKSWAGEN ATLANTIC, INC..
MEYER, DARRAGH, BUCKLER, Benenadents
BEBENEK & ECK -
Attorneys for VOLKSWAGENWERK
AKTIENGESELLSCHAFT and 1/18/78 Petition for Writ of Mandamus received 1/12/78,
VOLKSWAGEN OF AMERICA, INC. filed. Four copies. Proof of Service of above
2500 Grant Building petition received 1/18/78, filed.
Pittsburgh, Pennsylvania 15219 Submitted on above petition. Coram: Gibbons and
OF COUNSEL Hunter, Circuit Judges and Weber, District Judge.
Premio: P.C. | 1/27/78 Order. (Gibbons and Hunter, Circuit Judges and
Weber, District Judge) denying petitioners Petition
for Writ of Mandamus, filed.
1/27/78 Certified copy of above order to C. of D.C.
New York, New York 10005
2a United States Court of Appeals
For Tue Tuirp Circurr
January 18, 1978
No 78-1075
VOLKSWAGENWERK ARTIENGESELLSCHAFT
and VOLKSWAGEN OF AMERICA, INC.,
Petitioners,
Vs.
THE HONORABLE R. DIXON HERMAN,
SELDON P. TODD, JR., CAMERON AUTO, INC.
and VOLKSWAGEN ATLANTIC, INC.,
Respondents,
Present: Grspons and Hunter, Circuit Judges,
and Weser, District Judge.
1. Petitioners’ Petition for Writ of Mandamus, with Exhibits
A, B, C, D and E
in the above-entitled case.
Respectfully,
/s/ T. F. Quinn, Esquire
Clerk
enc.
kg
The foregoing Petition is denied.
By the Court,
/s/ JOHN J. GIBBONS
Judge
Dated: January 27, 1978
Harrisburg, Pa. 17108
TODD, Seldon P., Jr.
VOLKSWAGENWERK ARTIENGESELLSCHAFT
A West German Corporation
VOLKSWAGEN OF AMERICA, INC.
A New Jersey Corporation
OHS EAGER AEE ASHE Dimisced
* : *- . * ae as of
a> BelewareCorporatton 1/11/77
CAMERON AUTO, INC.
A Pennsylvania Corporation
CAUSE
28 U.S.C. 1332—Breach of Warranty, Negligence/Personal
Injury/Collision
(District of Columbia Civ. No. 75-1255)
ATTORNEYS
Juces Fink, Esg. VOLKSWAGENWERK
8630 Fenton St. ARTIENGESELLSCHAFT
Suite #331 Montgomery & VOLKSWAGEN OF
Center Bldg. AMERICA, INC.
Silver Spring, Maryland 20910 Anprew J. Banyas, III. Esq.
(1-301-587-6064 ) 2500 Grant Building
G. Tuomas Miter, Eso. Pittsburgh, Pa. 15219
McNEES, WALLACE & NURICK (412) 261-6600
P.O. Box 1166 — 100 Pine Street CAMERON AUTO, INC.
GOLDBERG, EVANS & KATZMAN
(717) 236-9341 James W. Evans, Esq.
LAIDLER B. MACKALL, Esgs. 16 N. Second St., P.O. Box 966
Martin D. SCHNEIDERMAN Harrisburg, Pa. 17108
STEPTOE & JOHNSON, ESQS. VOLKSWAGEN ATLANTIC, INC.
1250 Connecticut Ave., N.W. ARTHUR SILVERBLATT, Esq.
Washington, D.C. 20036 1400 United Penn Bank Bldg.
223-4800 Wilkes-Barre, Penna.
1-717-823-5181
Certified from the record
Date: 9/13/77
Donald R. Berry. Clerk
Per: /s/ E G. Kaamen
Deputy Clerk
4a
Nov.
Nov.
Nov.
Dec.
17
21
31
1976
Jan.
6
bo
DOCKET ENTRIES
CIVIL NO. 75-1307
Proceedings
ORIGINAL CASE FILE — transferred from
U.S. District Court for the District of
Columbia to M.D. of Penna. with certified
copy of Docket Entries.
JS. 5.
PRAECIPE — of appearance of Andew J.
Banyas, III, Esq. For Volkswagenwerk
Artiengesellschaft and Volkswagen of
America, Inc. only in this case.
CERTIFICATE — of service.
MOTION FOR ENLARGEMENT — of
time for additional 45 days to file answer to
complaint, and
CONSENT — thereto by counsel for
plaintiff, and
ORDER — granting an extension of 45 days
within which defts. are to respond to
complaint. (H) Copies to Court & all
Counsel from Hsbg.
ANSWER — on behalf of Volkswagenwerk
Artiengesellschaft and Volkswagen of
America, Inc., and
LETTER — stating copy was sent to counsel
for pltff.
SUMMONS NO. 2 — issued for service on
Cameron Auto Inc. and on Volkswagen
Atlantic, Inc. and with copies of Complaint
handed U.S. Marshal for service.
PRAECIPE — of appearance of G. Thomas
Miller, Esq. as local counsel for pltff.
CERTIFICATE — of service.
Mar.
Mar.
Mar.
. 19
7
10
il
12
13
14
Docket Entries 5a
Proceedings
SUMMONS — returned served 1/7/76 on
Cameron and 1/14/76 on Volkswagen.
(MF&E $15.21)
ANSWER & CROSSCLAIM — of defend-
ant, Cameron Auto, Inc., against all other
defendants and Certificate of Service
thereof.
APPEARANCE — of Arthur Silverblatt,
Esq., as counsel for Defendant,
Volkswagen Atlantic, Inc.
ANSWER — of Defendant, Volkswagen
Atlantic, Inc. to Plaintiff's Complaint, and
CERTIFICATE — of service thereof.
ANSWER — of Volkswagen Atlantic, Inc. to
Crossclaim of Cameron Auto, Inc., and
CERTIFICATE — of service thereof.
CROSS-CLAIM — of Defendant, Volks-
wagen Atlantic, Inc., against Volkswagen
of America, Inc. and Volkswagenwerk
Artiengesellschaft, and
CERTIFICATE — of service thereof.
REQUESTS — of Defendants Volkswagen-
werk Artiengesselschaft and Volkswagen
of America, Inc. for Admissions by
Plaintiff and Letter of Service.
INTERROGATORIES — of plaintiff di-
rected to Volkswagen of America, Inc. and
CERTIFICATE — of service thereof.
INTERROGATORIES — of plaintiff di-
rected to Volkswagenwerk Artiengesell-
schaft, and
CERTIFICATE — of service thereof.
Mar.
Apr.
Apr.
Apr.
12
12
16
18
19
21
Docket Entries
Proceedings
INTERROGATORIES — of _ plaintiff
directed to Volkswagen Atlantic, Inc. and
CERTIFICATE — of service thereof.
INTERROGATORIES — of | plaintiff
directed to Cameron Auto, Inc. and
CERTIFICATE — of service thereof.
ANSWER — of Volkswagenwerk Artien-
gesellschaft and Volkswagen of America,
Inc. to Crossclaim of Volkswagen Atlantic,
Inc. and
CERTIFICATE — of service thereof.
ANSWER — of Volkswagenwerk Artien-
gesellschaft and Volkswagen of America,
Inc. to Crossclaim of Cameron Auto, Inc.,
and
CERTIFICATE — of service thereof.
AMENDED ANSWER — on behalf of
Volkswagen Atlantic, Inc.
INTERROGATORIES — to Volkswagen
Atlantic, Inc. by Seldon P. Todd, Jr., C of
S
ANSWER — of Plaintiff, Seldon B. Todd, Jr.
to Requests of Defendants Volks-
wagenwerk Artiengesellschaft and Volks-
wagen of America, Inc. for Admissions;
and C of S.
MOTION — of Defendant, Volkswagen-
werk Artiengesellschaft and Volkswagen
of America, Inc. for enlargement of time
within which to file Answers to In-
terrogatories propounded by Plaintiff for
60 days beyond the norman (sic) time
period or until June 25, 1976, and
Date Nr.
Apr. 22
Apr. 26 23
July 21 24
July 21
July 21 25
July 21
July 21 26
July 21
July 26 27
Aug. 4 28
Aug. 4 29
Docket Entries 7a
Proceedings
LETTER — re service made on counsel.
ORDER — extending time to 6/25/76 for
defts. VOLKSWAGENWERK ARTIEN-
GESELLSCHAFT & VOLKSWAGEN
OF AMERICA to answer interrogatories
propounded by pltff. (H) Copies to all
counsel from Hsbg.
INTERROGATORIES — on behalf of the
Defendant, Volkswagen of America, Inc.,
directed to the Plaintiff, and
CERTIFICATE — of service thereof.
ANSWERS — of Volkswagen of America,
Inc. to Plaintiff's Interrogatories, and
CERTIFICATE — of service thereof.
ANSWERS — of Volkswagenwerk Artien-
gesellschaft to Plaintiff's Interrogatories,
and
CERTIFICATE — of service thereof.
ANSWERS — of Cameron Auto, Inc. to
interrogatories of plaintiff, and
CERTIFICATE — of service thereof.
AFFIDAVIT — of Defendant, Volkswagen
of America, Inc. by its Attorneys, Meyer,
Darragh, Buckler, Bebenek & Eck to
within affidavit of Ian Ceresney, Atty. to
Plaintiff's Interrogatories.
AFFIDAVIT — of Ian Ceresney, Esq.
member of the law firm of Herzfeld &
Rubin, P.C., 40 Wall St., N.Y., U.S. counsel
to Volkswagenwerk, to answers of De-
fendant Volkswagenwerk Artiengesell-
schaft to Plaintiff's Interrogatories, filed by
Andrew J. Banyas, III, Esq.
8a
Date
Aug.
Aug.
Aug.
Aug.
Aug.
Sept.
Sept.
Sept.
Sept.
Sept.
4
4
or
oO”
~~!
7
mai
13
14
Nr.
Docket Entries
Proceedings
30 SUPPLEMENTAL INTERROGATORIES
31
32
— on behalf of the Defendant,
Volkswagen of America, Inc., directed to
Plaintiff, and
CERTIFICATE — of service thereof.
CONSENT MOTION — for enlargement of
time within which to file Answers to
Interrogatories propounded by defendant
Volkswagenwerk Artiengesellschaft, and
CERTIFICATE — of service, and
ORDER — that Plaintiff shall be granted an
extension of 30 days beyond the date his
Answers to the two sets of Interrogatories
propounded by Defendant Volkswagen-
werk Artiengesellschaft would otherwise
be due, or until September 26, 1976 for the
first set, and until October 5, 1976 for the
second set. (H).Copies to counsel of
record.
MOTION — of Defendants Volkswagen-
werk Artiengesellschaft and Volkswagen
of America for summary Judgment, and C.
of S.
MOTION — of Defendant, Volkswagen
Atlantic, Inc., for Summary Judgment, and
CERTIFICATE — of service thereof.
BRIEF — in support of defendants’ Volks-
wagenwerk Artiengesellschaft and Volks-
wagen of America, Inc. Motion for Sum-
mary Judgment; Letter of service
attached.
MOTION — of plaintiff for extension of time
within which to answer interrogatories; C.
of S. attached.
Date Nr.
Sept. 28 36
Oct. 1 37
Oct. | 38
Oct. 1 40
Oct. 5 41
Oct. 4 42
Oct. 12 43
Oct. 12 44
Oct. 12 45
Docket Entries Ya
Proceedings
MOTION — of deft. Cameron Auto, Inc.
for Summary Judgment; C. of S. attached.
PLTFF’S BRIEF — in opposition to DEFT.
VOLKSWAGENWERK ARTIEN-
GESELLSCHAFT’S motion for summary
judgment. C of S.
PLTFF’S BRIEF — in opposition to DEFT.
VOLKSWAGEN OF AMERICA, INC.’S
motion for summary judgment. © of S.
PLTFF’S BRIEF — in opposition to DEFT.
Cameron Auto, INC.’S motion for sum-
mary judgment. C of S.
CERTIFICATE — of service that defend-
ant’s Cameron Auto, Brief in support of
motion for summary judgment have been
mailed to counsel.
BRIEF — in support of deft. CAMERON
AUTO, INC’S MOTION FOR SUM-
MARY JUDGMENT. 2 cc to Court.
BRIEF — in support of deft. Volkswagen
Atlantic, Inc. Motion for Summary Judg-
ment.; C. of S. therein. 2 CC to Court.
BRIEF — of Volkswagenwerk Artiengesell-
schaft and Volkswagen of America, Inc. in
response to plaintiff's opposition to defts.’
motion for summary judgment.
PROPOSED ORDER — of Court, IT IS
ORDERED and decreed that the plaintiff,
Seldon P. Todd, Jr. shall be granted an
extension of time until October 11, 1976,
within which to answer the first set of
Interrogatories propounded by defendant,
Volkswagenwerk Artiengesellschaft. (H)
C to Court and all counsel.
-
10a Docket Entries
Date = Nr. Proceedings
Oct. 27 46 INTERROGATORIES — on behalf of the
deft., Volkswagen of America, Inc.
directed to the pltff. C of S.
Nov.5 47 SUPPLEMENTAL INTERROGATORIES
— of Defendant, Volkswagen of America,
Inc. directed to the plaintiff, and
Nov. 5 CERTIFICATE — of service thereof.
1977
Jan.1l1 48 MEMORANDUM — from Judge Herman
and ORDER — of Judge Herman that the
motions for summary judgment by de-
fendants, Volkswagenwerk Artiengesell-
schaft, Volkswagen of America, and Cam-
eron Auto, be and are hereby denied. IT IS
FURTHER ORDERED that this case be
and is hereby transferred to the US Court
for the District of Columbia. — copies of
Memo & order to counsel of record. (H
office) (The motion for summary judg-
ment by defendant Volkswagen Atlantic,
be and is hereby granted and the action is
dismissed as to said defendant)
J.S.6
Jan. 13 CASE FILE — transferred to Distr. of
Columbia with cert. copy of docket
entries. (Orig. copy of Order in Scranton
File; cert. copy to Dist. of Columbia)
Jan. 28 49 MOTION — of Volkswagenwerk Artien-
gesellschaft and Volks. s zen of America,
Inc. for Reconsideratioi. of the denial of
their motions for summary judgment, and
ORDER — granting Motion for Recon-
sideration, and further ordering that all
Date
Feb. 14
Feb. 14
Feb. 16
Feb. 18
Feb. 28
Mar. 7
Mar. 9
51
52
Docket Entries lla
Proceedings
proceedings in the U.S. District Court for
the Dist. of Columbia shall be stayed until
further order of the Court. (H) copies
Order to Counsel and Motion & Order to
Clerk, D. of Columbia, together with letter
from Clerk’s office, Hbg.
MOTION — of Defendants Volkswagen-
werk Artiengesellschaft and Volkswagen
of America, Inc. for enlargement of time
until February 18, 1977 to file Brief in
support of their Motion for Reconsidera-
tion, and
CERTIFICATE — of service thereof.
BRIEF — of defendants, Volkswagenwerk
Artiengesellschaft and Volkswagen of
America, Inc., in support of defendants
motion for reconsideration, and
CERTIFICATE — of service. 2 copies to
court from H office.
ORDER (attached to Doc. 50) — Motion
approved. Copy to counsel; Hbg office.
PLAINTIFF'S BRIEF — opposing defend-
ant’s motion for reconsideration. C. of S.
Two copies to court.
BRIEF — of defendants, Volkswagenwerk
Artiengesellschaft and Volkswagen of
America, Inc., in response to plaintiff's
brief in opposition to defendants motion
for reconsideration, and C. of S. — copies
to Court.
NOTICE — of clerk for argument 3/22/77 in
Hrsbg. at 11 AM. copies to counsel and
court.
12a Docket Entries
Date Nr. Proceedings
Mar. 22 55 MEMORANDUM — of Plaintiff in response
to Defendants reply to Plaintiff's Opposi-
tion to Brief in support of Motion for
Reconsideration, and
Mar. 22 CERTIFICATE — of service thereof.
Mar. 22 56 MINUTE SHEET — of Clerk re Motion of
Defendant for Reconsideration of this
Court’s Order of January 11, 1977. Mr.
Fink admitted specially for this case. Mr.
Evans appears for Cameron Auto, Inc. and
joins in above motion. Motion taken under
advisement. (H)
May 3 57 LETTER — from Clerk in Harrisburg to
Clerk in Washington asking for the return
of the file so Court might refer to it
concerning the motion for Reconsideration
of order filed 1/11/77.
May 13. 58 LETTER — to Clerk, dated 5/10/77, from
James Davey, Clerk of District of Colum-
bia, starting that he sent the case file to our
Court.
Aug. 15 59 MEMORANDUM — from Court (H) Copies
to Counsel from Hsbg.
Aug. 15 60 ORDER — from Court that motion of defts.,
Volkswagenwerk Artiengesellschaft,
Volkswagen of America and Cameron
Auto, Inc., for reconsideration of this
Court’s Order of 1/10/77 be and it is
hereby denied, and that Order of 1/28/77,
staying further proceedings in this matter
be and it is hereby vacated. (H) Copies to
counsel from Hsbg.
Aug. 17 In view of this Court’s Order of August 15,
1977, denying defts. reconsideration of this
Date
Aug. 24
Aug. 26
Sept. 2
Sept. 6
Sept. 6
Docket Entries 13a
Nr. Proceedings
Court’s Order of 1/11/77, which denied
defendants’ Motions for Summary Judg-
ment and directing that the case be
transferred to the United States District
Court, District of Columbia, original case
file other than Documents #48, 59 and 60,
transferred to the United States District
Court, for the District of Columbia.
Certified copies of Documents 48, 59 & 60
included in case file.
61 MOTION — on behalf of defts. VOLKS-
WAGENWERK ARTIENGESELL-
SCHAFT AND VOLKSWAGEN OF
AMERICA, INC. to amend its order in
compliance with rule 54(b) of the FRCP
and to cei ufy its interlocutory order under
28 USC 1292(b).
62 RECEIPT — from Clerk of Dist. Ct.,
Washington, DC for documents | thru 48
which were mailed to Wash., D.C.
63 MOTION — of defendant, Cameron Auto,
Inc. to amend its order and to certify its
interlocutory order. C of S.
64 OPPOSITION — of plaintiff to motion of
defendants Volkswagenwerk Artienge-
sellschaft and Volkswagen of America,
Inc., which asks this Court to amend its
order of 1/10/77 to permit an interlocutory
appeal. C. of S.
65 BRIEF — of defendants, Volkswagenwerk
Artiengesellschaft and Volkswagen of
America, Inc., in support of motion
document 61. C. of S.
lda Docket Entries
Date Nr. Proceedings
Sept. 12 65 REPLY — of defendants Volkswagenwerk
Artiengesellschaft and Volkswagen of
America to plaintiff's opposition to cer-
tification. C. of S.
PLAINTIFFS I5a
SELDON P. TODD, JR.
DEFENDANTS
1. VOLKSWAGENWERK ARTIENGESELLSCHAFT
A West German Corporation _
2. VOLKSWAGEN OF AMERICA, INC.
A New Jersey Corporation
3. VOLKSWAGEN ATLANTIC, INC.
A Delaware Corporation
4. CAMERON AUTO, INC.
A Pennsylvania Corporation
CAUSE
BREACH OF WARRANTY, NEGLIGENCE/PERSONAL
INJURY/COLLISION
28 USC 1332
ATTORNEYS
Juves Fink, Esq.
8630 Fenton St., Suite #331
Silver Spring, Md. 20910
1 & 2: Lamuer B. MAcKALL
MaatTIN D. SCHNEIDERMAN
STEPTOE & JOHNSON
1250 Conn. Ave., N.W. (36)
16a
Date
1976
July 31
July 31
Aug. 15
Aug. 21
Aug. 25
DY
e
—
_—s
—
ho
Sept. 26
DOCKET ENTRIES
Proceedings
COMPLAINT; Appearance; Jury Demand.
SUMMONS Copies (4) and Copies (4) of
Complaint issued.
AFFIDAVIT of pltff. in support of proof of
service/ c/m 8-15.
MOTION of deft. #3 to quash purported
return of service of process and to dismiss
for lack of jurisdiction; P & A’s; Exhibit
(Unexecuted aff. of Raymond F. Glenn)
c/m 8-20.
MOTION of defts. to extend time to answer
or otherwise plead; P & A’s; c/m 8-25.
APPEARANCE of Martin Schneiderman.
MOTION of deft. for extension of time to file
answer for additional 20 days, Approved
(fiat) (N) Pratt, J. ;
APPEARANCE of Laidler B. Mackall for
defts. #1 & #2.
AFFIDAVIT of Raymona F. Glenn.
MOTION by pltff. to extend time to answer
or otherwise plead to deft. #3 motion to
quash; c/m 9-4.
MOTION of plaintiff to transfer; P & A; c/s
9/12/75.
ORDER granting motion of deft
Volkswagen Atlantic to quash return of
service and dismissing as to said deft. (N)
Pratt, J.
ORDER granting motivn of plitff. to transfer
case to USDC for the Middle District of
Pennsylvania. (N) Pratt, J.
Oct. 28
1977
Jan. 17
Jan. 17
Jan. 31
Aug. 19
Docket Entries l7a
Proceedings
ORIGINAL File and certified copy of docket
sheets mailed to Clerk, USDC for the
Middle District of Pennsylvania pursuant
to Order of Sept. 26, 1975.
ACKNOWLEDGEMENT from = Clerk,
USDC for the Middle District of Penn-
sylvania of receipt of original papers and
certified copy of docket entries (#75-1307).
CERTIFIED Copy of docket entries and
case received and filed from the United
States District Court for the Middle
District of Pennsylvania.
CERTIFIED copy of order transferring
cause from the U.S. District Court for the
Middle District of Pennsylvania to the U.S.
District Court for the District of Columbia.
Herman, J.
LETTER dated 1-28-77 from Kenneth J.
Mulholland, Deputy Clerk for USDC for
the Middle District of Pennsylvania to
James F. Davey, Clerk, USDC for the
District of Columbia re copy of motion &
order of defts. filed 1-28-77 in USDC for
the Middle District of Pennsylvania;
attachments (2).
LETTER dated 8-17-77 from Frank Kurd-
ziel, Chief Deputy Clerk, USDC for the
Middle District of Pennsylvania to James
F. Davey, Clerk USDC for the District of
Columbia returning the entire case file
pursuant to order of January 11, 1977; three
(3) volumes sent from USDC for Middle
District of Pennsylvania; certified copy of
docket entries.
18a IN THE
United States Court of Appeals
Tuirp Jupiciac Circurr ~
VOLKSWAGENWERK ARTIENGE-
SELLSCHAFT and VOLKSWAGEN
OF AMERICA, INC.,
Petitioners,
versus ) No. 78-1075
THE HONORABLE R. DIXON HERMAN,
SELDON P. TODD, JR., CAMERON
AUTO, INC. and VOLKSWAGEN
ATLANTIC, INC.,
Respondents.
PETITION OF
VOLKSWAGENWERK ARTIENGESELLSCHAFT
AND VOLKSWAGEN OF AMERICA, INC.
FOR WRIT OF MANDAMUS
Petitioners Volkswagenwerk Artiengesellschaft and
Volkswagen of America, Inc. by their attorneys, MEYER,
DARRAGH, BUCKLER, BEBENEK & ECK, petition this
court to enter a writ of mandamus against respondents,
pursuant to Rule 21 of the Federal Rules of Appellate
Procedure, based upon the following:
1. Petitioner Volkswagen of America, Inc. is a New
Jersey corporation with its principal place of business in
New Jersey.
2. Petitioner Volkswagenwerk Artiengesellschaft is a
West German corporation with its principal place of
business in West Germany.
3. Respondent the Honorable R. Dixon Herman is a
district judge of the United States District Court for the
Middle District of Pennsylvania.
Petition for Writ of Mandamus 19a
4. Respondent Seldon P. Todd, Jr. is an individual
residing in and a citizen of the District of Columbia.
5. Respondent Cameron Auto, Inc. * a Pennsylvania
corporation with its principal place of business in Penn-
sylvania.
6. Respondent Volkswagen Atlantic, Inc. is a Delaware
corporation with its principal place of business in Penn-
sylvania.
7. Jurisdiction over a petition for a writ of mandamus in
the United States Court of Appeals for the Third Circuit is
predicated upon 28 U.S.C. §1651.
8. On January 24, 1973, plaintiff, while driving an
automobile northward on Fifteenth Street, N.W. in Wash-
ington, D.C., was involved in an autombile accident with a
car owned and operated by Calvin J. Verrett.
9. On July 31, 1975, as a result of the accident, the
plaintiff instituted an action for personal injuries in the
District Court for the District of Columbia, docketed at Civil
Action No. 75-1255.
10. Although the plaintiff was able to obtain personal
jurisdiction over petitioners and Respondent Cameron Auto,
Inc., he attempted to obtain personal jurisdiction over
Respondent Volkswagen Atlantic through Washington's
long-arm statute, D.C. Code §§13-423(a) and 13-431 (a)(3).
11. Thereafter, Volkswagen Atlantic moved to quash
the service as being improper and to dismiss the case for lack
of personal jurisdiction.
12. On September 25, 1975, the District Court for the
District of Columbia granted Volkswagen Atlantic's
motions.
13. Thereafter, the Respondent-plaintiff Todd moved,
pursuant to 28 U.S.C. §1404(a), voluntarily to transfer the
20a Petition for Writ of Mandamus
action from the District of Columbia to the federal District
Court for the Middle District of Pennsylvania.
14. On September 26, 1975, Judge John H. Pratt of the
District of Columbia transferred the case to the Middle
District of Pennsylvania.
15. Thereafter, in the Middle District of Pennsylvania,
the plaintiff attempted once again to gain valid service over
Respondent Volkswagen Atlantic and apparently was
successful.
16. After the case was transferred to the Middle District
of Pennsylvania, all parties engaged in extensive discovery
on both issues of liability and damages.
17. Because the suit was not commenced until July 31,
1975 — more than two and one-half years after the accident
— all of the defendants moved for summary judgment
invoking the Pennsylvania two-year statute of limitations
regarding personal injury actions, 12 P.S. §34, and four-year
statute of limitations relating to actions for breach of
warranty, 12A P.S. §2-725. The District of Columbia has a
three-year statute of limitations for personal injury.
18. On January 10, 1977, after all parties had submitted
briefs, but without benefit of oral argument or opportunity
for rebuttal, the district judge in the Middle District of
Pennsylvania granted Volkswagen Atlantic’s motion for
summary judgment on the ground that “the two-year
Pennsylvania statute of limitations barred the action against
Volkswagen Atlantic ...
19. On that same day, the district judge denied the
motions of the remaining defendants because “the action
had been begun and service made within the three year
limitation of the District of Columbia.” At the same time
“{cjoncluding that the interests of justice would best be
served if plaintiff were permitted to pursue his claims
Petition for Writ of Mandamus 2la
against [the remaining defendants] in the forum he had
initially selected,” the district court “retransferred” the case
to Washington. There was no motion for “retransfer”. A
copy of the district court’s Memorandum and Order is
attached to and made a part of this petition and is designated
Exhibit A.
20. Subsequently, the three defendants moved for
reconsideration of that decision, based on two con-
siderations:
a. the simultaneous granting of Volkswagen Atlantic's
motion and the denial of the remaining defendants’
motions distinguished between defendants in ihe
same class thereby denying the remaining defen-
dants equal protection; and
b. the retransfer of the case to the District of
Columbia without a forma! motion, notice or
hearing constituted a denial of due process under
the Fifth and Fourteenth Amendments of the
Constitution.
A copy of the petitioners’ motion is attached to and made a
part of this petition, and is designated Exhibit B.
21. On August 15, 1977, the district court’s memoran-
dum refused to reconsider these matters, stating that it lost
jurisdiction once it had forwarded the case file to the District
of Columbia. A copy of the district court’s memorandum is
attached to and made a part of this petition, and is
designated Exhibit C.
22. Thereafter, the petitioners timely filed motions for
certification of questions of law under 28 U.S.C. §1292(b)
and to amend the January 10, 1977 order to :omply with
Rule 54(b) of the Federal Rules of Civil Proceiure. A copy
of petitioners’ motion is attached to and made a part of this
petition, and is designated Exhibit D.
22a Petition for Writ of Mandamus
23. In an order dated January 3, 1978, and received by
petitioners’ counsel on Friday, January 6, 1978, the district
court denied those motions. A copy of the court’s order is
attached to and made a part of this petition, and is
designated Exhibit E.
24. As a result of these denials, petitioners have brought
this petition to demand the application of the Pennsylvania
two-year statute of limitations to the case which was
transferred, upon plaintiff's motion, from the District of
Columbia to the Middle District of Pennsylvania.
ISSUES
Statement of the Issues Presented
25. Petitioners seek the resolution of the following
issues:
A. WHETHER THE DISTRICT COURT EX-
CEEDED ITS AUTHORITY IN TRANSFER-
RING THIS CASE TO THE DISTRICT OF
COLUMBIA WITHOUT FIRST AFFORDING
PETITIONERS THE REQUISITE PROCE-
DURAL SAFEGUARDS OF NOTICE AND AN
OPPORTUNITY TO BE HEARD?
B. WHETHER THE DISTRICT COURT HAS
FAILED TO EXERCISE PROPER JURISDIC-
TION OF THIS CASE BECAUSE THE TRANS-
FER OF THE CASE WAS WITHOUT THE
REQUISITE PROCEDURAL SAFEGUARDS
AND THEREFORE WAS VOID?
C. WHETHER THE DISTRICT COURT, IN AP-
PLYING DIVERSE STATUTES OF LIMITA-
TIONS TO DEFENDANTS OF THE SAME
CLASS, VIOLATED THE PETITIONERS’
RIGHT TO EQUAL PROTECTION OF THE
LAW?
Petition for Writ of Mandamus 23a
D. WHETHER THE DISTRICT COURT HAS
IMPROPERLY SELECTED AND APPLIED
THE STATUTE OF LIMITATION OF THE
TRANSFEROR FORUM — THE DISTRICT OF
COLUMBIA — WHEN THE INITIAL TRANS-
FER FROM THAT FORUM TO THE MIDDLE
DISTRICT OF PENNSYLVANIA WAS
GRANTED VOLUNTARILY AND PURSUANT
TO THE PLAINTIFF-RESPONDENT’S MO-
TION?
E. WHETHER THE DISTRICT COURT SHOULD
HAVE APPLIED THE PENNSYLVANIA STAT-
UTE OF LIMITATIONS TO PETITIONERS’
MOTION FOR SUMMARY JUDGMENT AND
THEREFORE SHOULD HAVE GRANTED
THAT MOTION?
Statement of Why the Writ Should Issue
26. The district judge without affording the petitioners
the constitutionally-demanded safeguards of notice and an
opportunity to be heard before retransferring the case from
the Middle District to the District of Columbia, has exceed-
ed its authority, has acted without jurisdiction or has failed to
exercise its jurisdiction in a proper case. Solomon v.
Continental American Life Insurance Co., 472 F.2d 1043,
1045 (3d Cir. 1973); Swindell-Dressler Corp. v. Dumbauld,
308 F.2d 267, 272 (3d Cir. 1962). As a result of these failures,
the retransfer to the District of Columbia is void and this
Court should acknowledge that fact.
27. When the plaintiff seeks the transfer of a case from
one forum to another, the district court must apply the
choice of law provisions, including the applicable statute of
limitations, of the transferee forum. VanDusen v. Barrack,
376 U.S. 612, 639-640 (1964); Carson v. U-Haul Co., 434 F.2d
Qa Petition for Writ of Mandamus
916 (6th Cir. 1970); Boughton v. Shoulders, 116 F. Supp. 391
(W.D. Ky. 1953); Brown v. Merrow Machine Co., 411 F.
Supp. 1162 (D. Conn. 1976).
28. In failing to apply the Pennsylvania two-year
personal injury statute of limitations, the district court has
selected and applied an incorrect legal precept. Henry v.
Richardson-Merrell, Inc., 308 F.2d 28, (3d Cir. 1975).
29. In this instance, the plaintiff attempted to sue all of
the defendants in the District of Columbia, apparently to
gain the advantage of its longer personal injury statute.
Finding that it could not reach one punitive defendant, the
plaintiff on his own initiative voluntarily had the case
transferred to a venue in which he could reach that defend-
ant, the Middle District of Pennsylvania.
30. The plaintiff sought the benefits of both service over
the missing defendant and the application of the District of
Columbia statute of limitations.
31. Under the applicable law, the Pennsylvania statute
of limitations for personal injury should have been applied
and the petitioners’ motioti for summary judgment, based
upon the application of that statute, should have been
granted.
32. The district court has treated defendants within the
same category unequally in applying the Pennsylvania
statute of limitations to defendant Volkswagen Atlantic and
applying the Washington, D.C. statute of limitations to
petitioners. Petitioners and Volkswagen Atlantic are defend-
ants of the same status and there is no distinction among
them.
Statement of the Relief Sought
33. The district court has exceeded its authority in
transferring this case without first affording the petitioners
Petition for Writ of Mandamus 25a
requisite procedural safeguards of notice and an opportuni-
ty to be heard and has failed to exercise proper jurisdiction
because the district court has applied disparate statutes of
limitations to identical defendants; and because the district
court has applied the improper statute of limitations to the
petitioners’ motions for summary judgment, petitioners pray
that this court enter a writ of mandamus demanding that:
1. the district court accept and retain jurisdiction over
this case;
2. the district court apply the appropriate law, Penn-
sylvania’s two-year personal injury statute of limi-
tations;
3. the district court treat all of the defendants,
including petitioners, equally by applying the same
statute of limitations, i.e. that of Pennsylvania;
4. the district court grant the petitioners’ motion for
summary judgment on the ground that the plain-
tiff’s action is barred by the Pennsylvania two-year
personal injury statute of limitations, the limitation
of the transferee jurisdiction.
Respectfully submitted,
MEYER, DARRAGH, BUCKLER,
BEBENEK & ECK
By ..../8/ ANprew J: Banyas, Ill
ANprREW J. Banyas, III, Esquire
Micuaec V. GiLBerti, Esquire
Attorneys for Volkswagenwerk
Artiengesellschaft and Volkswagen
of America, Inc.
26a Exhibit A
United States District Court
For THe Mipoce District oF PENNSYLVANIA
SELDON P. TODD, JR.,
Plaintiff
Vv.
VOLKSWAGENWERK ARTIENGE-
~~
SELLSCHAFT, VOLKSWAGEN OF Civil No.
AMERICA, INC., 75-1307
VOLKSWAGEN ATLANTIC, INC. and FILED
CAMERON AUTO, INC., a Pennsylvania prey ty
Corporation, d Per ./8/ Scie R. een CuerK
Defendants EE aon Rem: ...
MEMORANDUM AND ORDER
This diversity action arises from an automobile accident
which occurred in Washington, D.C., on January 24, 1973.
Plaintiff alleges that the injuries he suffered in that accident
were the result of faulty design and manufacture of the 1968
Volkswagen which he was driving. He seeks to recover
damages on three theories: negligence, strict liability and
breach of warranty.
Plaintiff commenced this action by filing a complaint in
the United States District Court for the District of Columbia
on July 31, 1975, well within that jurisdiction’s three-year
statute of limitations for personal injury actions. Service was
successfully made on defendant Volkswagen Artiengesell-
schaft, Volkswagen of America and Cameron Auto, Inc. The
fourth defendant, Volkswagen Atlantic, Inc. could not
properly be served under the District of Columbia long-arm
statute, and its motion to quash service and to dismiss for
lack of jurisdiction was granted on September 24, 1975.
Subsequently the court granted plaintiff's motion to transfer
the action to this district, where it appeared that jurisdiction
Exhibit A 27a
could be had over all four defendants.' Before this court, all
defendants have moved for summary judgment, contending
that the action is barred by Pennsylvania's statutes of
limitations applicable to actions for personal injuries (2
years)* and breach of warranty (4 years)°.
There is no conflict of laws problem to be resolved in
regard to the breach of warranty limitation period, as both
Pennsylvania and the District of Columbia have adopted the
Uniform Commercial Code, with its four-year limitation
applicable to all contracts for sale. 12A P.S. § 2-725; D.C.
Code § 28: 2-725‘. This four-year period begins to run, in a
breach of warranty action, at the time of tender of delivery
of the allegedly defective goods, and not when the injury
occurs. Peeke v. Penn Central Transp. Co., Inc.,403 F.Supp.
70 (E.D. Pa. 1975); Rufo v. Bastian-Blessing Co.,417 Pa. 107,
207 A.2d 823 (1965). Plaintiff purchased his Volkswagen on
May 23, 1968 and began this action on July 31, 1975; thus the
action is clearly time-barred, unless it comes within the
exception as to future performance set forth in the second
sentence of § 2-725(2).
' Transfer was pursuant to 28 U.S.C. §1404(a), which reads: “For the
convenience of parties and witnesses, in the interest of justice, a district
court may transfer any civil action to any other district or division where it
might have been brought.”
212 PS. §34
SIZ APS. §2-725
* §2-725 provides, in pertinent part:
“(1) An action for breach of any contract for sale must be
commenced within four years after the cause of action has accrued.
By the original agreement the parties may reduce the period of
limitation to not less than one year but may not extend it.
“(2) A cause of action accrues when the breach occurs,
of the aggrieved party's lack of knowledge of the breach. A breach of
warranty occurs when tender of delivery is made, except that where a
warranty explicitly extends to future performance of the goods and
discovery of the breach must await the time of such performance the
eS accrues when the breach is or should have been
28a Exhibit A
There is nothing in the record to indicate that any
explicit warranty extending to future performance was
given in connection with the sale of plaintiff's Volkswagen.°
The warranty upon which plaintiff seeks to recover is an
implied one that the automobile manufactured by defen-
dants would provide reasonable protection to its occupants
in the event of collision. This is not within the exception of
§ 2-725(2). To apply this exception, as plaintiff urges, to an
implied warranty merely because the alleged breach was not
readily discoverable would completely negate the provision
of § 2-725(1) that the cause of action accrues “when breach
occurs, regardless of the aggrieved party’s lack of
knowledge of the breach.” See General Motors Corp. v.
Tate, 516 S.W. 2d 602 (Ark. 1974).
The second question before us is whether, as to
plaintiff's claims based on negligence and strict liability, the
three-year limitation period of the District of Columbia or
the two-year limitation period of Pennsylvania should be
applied. The leading case in this area is Van Dusen v.
Barrack, 376 U.S. 612, 11 L.Ed.2d 945 (1964), in which it was
held that where the defendant procures a transfer under 28
U.S.C. § 1404(a), the transferee court is obligated to apply
the law that would have been applied if there had been no
change of venue.* The Van Dusen decision was based
largely on the policy set forth in Erie Railroad Co. v.
’ A copy of the standard Volkswagen warranty is attached to
defendants’ “Brief in Respone to Plaintiff's Brief in Opposition to
Defendants’... Motion for Summary Judgment.” The warranty covers all
defects in materials or workmanship for the first 24 months or 24,000 miles
of normal use, but makes no representations whatever as to the auto-
mobile’s “crashworthiness”.
* Although Van Dusen did not deal specifically with statutes of
limitations, subsequent cases have recognized that the rule announced
therein applies to statutes of limitations as well as to matters of substantive
law. Alabama Great Southern R. Co. v. Allied Chemical Corp., 467 F.2d
679 (5th Cir. 1972): Bott v. American Hydrocarbon Corp., 441 F.2d 896
(Sth Cir. 1971).
Exhibit A 29a
Tompkins, 304 U.S. 64, 82 L.Ed. 1188 (1938), that the
“accident” of federal diversity jurisdiction should not enable
a party to achieve a result different than that which could be
achieved in the courts of the state where the action was filed.
376 U.S., at 637, 11 L.Ed.2d, at 962.
The instant case differs from Van Dusen in that here the
plaintiff rather than the defendant has sought the change of
venue. The Court in Van Dusen specifically declined to
decide whether the law of the transferor state must be
applied in such a situation, 376 U.S., at 639-40, 11 L.Ed.2d, at
963, and the lower federal courts have reached differing
conclusions. In Watwood v. Barber, 70 F.R.D. 1 (N.D. Ga.
1975), the court allowed the plaintiffs to avail themselves of
Georgia's longer statute of limitations after transfer from
Alabama, where the action was time-barred.’ A contrary
result was reached in Schenk v. Piper Aircraft Corp., 377
F.Supp. 477 (W.D. Pa. 1974), wherein the court refused to
transfer the action to Ohio, assuming that Pennsylvania's
two-year statute of limitations would continue to act as a bar
to the action despite Ohio’s more liberal three-year period.
In Mata v. Budd Co., 44 F.R.D. 225 (E.D. Pa. 1968) another
Pennsylvania court refused to permit transfer to the District
of Columbia, it appearing that the plaintiff could not have
affected service on the defendant in the District of Columbia
if the action had been commenced there.
The closest case factually to the one at bar, Carson v. U-
Haul Co., 434 F.2d 916 (6th Cir. 1970), arose from an
* Similarly, in Les Schwimley Motors, Inc. v. Chrysler Motor Corp.,
270 F.Supp. 418 (E.D. Cal. 1967), a court in California, where the statute of
limitations had run, granted plaintiff's motion to transfer the case to
“ Nevada, assuming that Nevada's longer limitation period would permit
the action to proceed there. A major factor underlying both Les
Schwimley and Watwood, supra, was the fact that the transferee
jurisdiction had more significant contacts with the case than the transferor
jurisdiction, and thus would have been the more appropriate forum in
which to have originated the action.
30a Exhibit A
automobile accident in Kentucky. Plaintiffs, residents ot
Georgia, brought suit in the Northern District of Georgia
within the applicable two-year limitation period. The
Georgia court’s jurisdiction over any defendant was
doubtful, but before the court ruled on the question of its
jurisdiction, plaintiffs moved to transfer the action to the
Eastern District of Kentucky. The motion to transfer was
granted, and the Kentucky court then dismissed the action
va the grounds that it was barred by Kentucky's one-year
statute of limitations. The Court of Appeals for the Sixth
Circuit affirmed, finding that allowing plaintiffs to retain the
benefit of both the longer Georgia statute of limitations and
the service of process available in Kentucky would prejudice
the fundamental rights of the defendant, and that such a
result was not intended by the transfer statute.
The policy stated by the Supreme Court in Van Dusen,
supra, dictates a result in this case similar to that of the
Carson decision, supra. By the time plaintiff filed this action
it was too late to use the Pennsylvania courts as a forum. His
only choice then was to bring suit in the District of Columbia
and accept the accompanying problem of service upon
Volkswagen Atlantic. To now allow plaintiff to avail himself
of the service of process available in Pennsylvania while
retaining the statute of limitations of the District of
Columbia would be to give him an advantage over the
defendant, Volkswagen Atlantic, which would be available
in neither Pennsylvania nor the District of Columbia in the
absence of diversity jurisdiction. This is exactly the sort of
legal maneuvering that was condemned in Van Dusen, albeit
attempted by the defendant in that case. Accordingly, the
action will be dismissed as to Volkswagen Atlantic.
Neither Van Dusen nor Carson, however, compels
dismissal of the case as to the three remaining defendants.
Plaintiff has done everything necessary to preserve his rights
Mee hens er eee oe
“se
Exhibit A 3la
against these defendants under the laws of the District of
Columbia, having filed within the limitation period and
successfully served process upon them. A subsequent
improvident transfer in an attempt to obtain jurisdiction _
over the fourth defendant should not defeat the original
timely filing. Plaintiff has indicated in his brief that he would
be amenable to retransfer of the case to the District of
Columbia should we hold that the Pennsylvania statute of
limitations bars the action in this court. We agree that
retransfer is the proper course. The action was properly
begun in the District of Columbia, and the transfer having
proved futile, the interests of justice can best be served by
returning it to the District of Columbia.
An appropriate order will be entered.
/s/ R. Dixon HERMAN
R. Dixon Herman
United States District Judge
Dated: January 10th, 1977.
32a ; Exhibit A |
United States District Court i Exhibit A 33a
For THe Mippce District oF PENNSYLVANIA In THE
SELDON P. TODD, JR., ’ | United States District Court
Plaintiff : For THE Mippve District oF PENNSYLVANIA
~ SELDON P. TODD, JR. 7
Plainti
VOLKSWAGENWERK ARTIENGE- | -. if
perapenccnnann dhl ee = VOLKSWAGENWERK ARTIENGESELL-
I JA, ING,, swt No. ; SCHAFT
pron enprntdh a INC. and 75- we a A West German Corporation
a Pennsylvania Corporation, pape | and
Defendants Jen tte te dine tae VOLKSWAGEN OF AMERICA, INC. Civil Action
or. #38 #}© paar, | A New Jersey Corporation No. 75-1307
| d
ANnp Now, this 10th day of January, 1977, IT IS | 6 /
ORDERED that the motion for summary judgment by | VOLKSWAGEN ATLANTIC, INC.
defendant Volkswagen Atlantic, Inc. be and is hereby ; A Delaware Corporation ——
granted and the action is dismissed as to said defendant. | and Harrisburg. Pa.
It Is FurTHER Orperep that the motions for summary CAMERON AUTO, INC. oe tess wad see
judgment by defendants, Volkswagenwerk Artien- ! A Pennsylvania Corporation spies tace —oAo
gesellschaft, Volkswagen of America, Inc. and Cameron | Defendants )
Auto, Inc., be and are hereby denied.
It Is FuRTHER Orperen that this case be and is hereby | PROPOSED ORDER OF COURT
transferred to the United States District Court for the
District of Columbia.
/s/ R. Dixon HERMAN
R. Dixon Herman
United States District Judge
Anp Now, To Wr, this 11th day of October, 1976, upon
presentation of the within Motion and consideration of
same, it is hereby ordered and decreed that the Plaintiff,
Seldon P. Todd, Jr. shall be granted an extension of time
until October 11, 1976, within which to answer the first set of
Interrogatories propounded by Defendant, Volks-
wagenwerk Artiengesellschaft.
BY THE COURT
/s/ R. Dixon HERMAN
10-12-76
This Order consented to
By: /s/ ANDREW J. BANyas
Attorney for Volkswagenwerk Artiengesellschaft
3a Exhibit B
IN THE
United States District Court
For THE Mippie Districr or PENNSYLVANIA
SELDON P. TODD, JR., a
Plaintiff
versus
VOLKSWAGENWERK ARTIENGE-
SELLSCHAFT, VOLKSWAGEN Civil Action
OF AMERICA, INC. VOLKSWAGEN No. 75-1307
ATLANTIC, INC. and
CAMERON AUTO, INC., a Pennsylvan
corporation,
Defendants. ,
MOTION FOR RECONSIDERATION
AND NOW come Volkswagenwerk Artiengesellschaft
and Volkswagen of America, Inc., two of the above named
defendants by their attorneys, MEYER, DARRAGH,
BUCKLER, BEBENEK & ECK, and file the within motion
for reconsideration of the denial of their motions for
summary judgment and state the following reasons in
support thereof:
1. The plaintiff initially filed the within lawsuit on July
31, 1975, in the United States District Court for the District of
Columbia, at Civil Action No. 75-1255 seeking damages for
injuries sustained on January 24, 1973 in a motor vehicle
accident occurring on 15th Street, NW, Washington, D.C.
2. In the District of Columbia action, the defendant,
Volkswagen Atlantic, Inc., filed a motion to quash pur-
ported return of service of process and to dismiss for lack of
jurisdiction.
3. An order of court granting motion of Volkswagen
Atlantic, Inc. was signed on September 25, 1975.
ee ee ee ee ey ee eee a
ot
ee
See Tht ok BAS OE. meme eet Shen Le ek GR ee Let ree et nee
Exhibit B 35a
4. Subsequent thereto, the plaintiff filed a motion to
transfer the action from the United States District Court for
the District of Columbia to the United States District Court
for the Middle District of Pennsylvania.
5. On September 26, 1975, an order of court was signed
transferring the within action to the Middle District of
Pennsylvania pursuant to 28 U.S.C. §1404(a).
6. In paragraph 7 of the plaintiff’s complaint, it is alleged
that plaintiff purchased the vehicle which is the subject
matter of this action from the defendant, Cameron Auto,
Inc., on or about May 23, 1968.
7. Paragraph 9 of the plaintiff's complaint it is alleged
that the accident which is the subject matter of the within
lawsuit occurred on or about January 24, 1973.
8. The defendants, Volkswagenwerk Artiengesellschaft
and Volkswagen of America, Inc., filed a motion for
summary judgment under Rule 56 of the Federal Rules of
Civil Procedure, seeking a summary judgment in their favor,
asserting that the Pennsylvania two year statute of limi-
tations relating to personal injury actions was applicable to
the within action, thereby barring the same.
9. In ruling upon the above named defendants’ motion
for summary judgment, the Honorable R. Dixon Herman,
stated in his memorandum and order of January 10, 1977,
that “the policy stated by the Supreme Court in VanDusen,
supra., dictates a result in this case similar in that of the
Carson decision, supra. By the time the plaintiff filed this
action, it was too late to use the Pennsylvania Courts as a
forum.”
10. The above named defendants also asserted in the
aforementioned motion for summary judgment that the four
year statute of limitations relating to actions for breach of
warranty was also applicable to the within action and also
acted as a bar to the same.
36a Exhibit B
11. In ruling upon the above named defendants’ motion
for summary judgment, the Honorable R. Dixon Herman
stated in his memorandum and order of January 10, 1977
that:
“There is no conflict of laws problem to be resolved in
regard to the breach of warranty, as both Pennsylvania
and the District of Columbia have adopted the Uniform
Commercial Code, with its four-year limitation
applicable to all contracts for sale. 12A P.S. §2-725; D.C.
Code $28; 2-725.* This four-year period begins to run, in
a breach of warranty action, at the time of tender of
delivery of the allegedly defective goods, and not when
the injury occurs. (citations omitted) Plaintiff purchas-
ed his Volkswagen on May 23, 1968 and began this
action on July 31, 1975; thus the action is clearly time-
barred unless it comes within the exception as to future
performance set forth in the second sentence of §2-725.
(2) There is nothing in the record to indicate that any
explicit warranty extending to future performance was
given in connection with the sale of plaintiff's Volks-
wagen. The warranty upon which plaintiff seeks to
recover is an implied one that the automobile manufac-
tured by defendants would provide reasonable protec-
tion to its occupants in the event of a collision. This is not
within the exception of §2-725(2).” (footnote omitted)
12. The order accompanying the court’s opinion and
dated January 10, 1977 granted the motion for summary
judgment by defendant, Volkswagen Atlantic, Inc. and
dismissed the action as to said defendant.
13. The January 10, 1977 order then disposed of the
motions for summary judgment by defendants, Volks-
wagenwerk Artiengesellschaft, Volkswagen of America,
Inc. and Cameron Auto, Inc. by denying the same.
ay ee ey
Ot eee ot ee eta ee tettienel
Exhibit B 37a
14. The motion for summary judgment by defendant
Volkswagen Atlantic, Inc. asserted the Pennsylvania two
year statute of limitations relating to personal injury actions
as a bar to the plaintiff's action as well as to the four-year
statute of limitations relating to actions for breach of
warranty as a bar to plaintiff's action.
15. The motions for summary judgment by defendants,
Volkswagenwerk Artiengesellschaft, Volkswagen of
America, Inc. and Cameron Auto, Inc. asserted the same
statutes of limitations as did Volkswagen Atlantic, Inc. as a
bar to plaintiff's action.
16. The granting of the motion for summary judgment
by defendant, Volkswagen Atlantic, Inc., and the denying of
the remaining defendants’ motions for summary judgment
distinguishes between defendants in the same class and is
therefore a denial to said defendarts of the right to equal
protection under the law.
17. The plaintiff indicated in his brief in opposition to
the various defendants’ motions for summary judgment that
he would be amenable to retransfer of the case to the District
of Columbia should this Honorable Court hold that the
Pennsylvania statutes of limitations bar his action in this
Honorable Court.
18. To date, the plaintiff has never filed a motion for
transfer or a petition for transfer with your Honorable Court.
Prior to issuance of the order retransferring this case to the
District of Columbia, no notice was given to any of the
parties involved, there was no hearing on the matter of
transfer and the parties were not given an opportunity to be
heard before the court.
19. The order of January 10, 1977, directed that this case
be transferred to the United States District Court for the
District of Columbia.
38a Exhibit B
20. Failure to give the defendants notice, hold a hearing
on the matter of transfer, and provide the defendants with an
opportunity to be heard is a denial of due process
guaranteed under the Fifth Amendment of the Constitution
of the United States.
Wuererore, your Honorable Court is respectfully
requested to reconsider the denial of defendants’ motions
for summary judgment.
Respectfully submitted,
MEYER, DARRAGH, BUCKLER,
BEBENEK & ECK
RPP Pree ET eT Tye ere TT Per TTT Ty
Andrew J. Banyas, III, Esquire
Attorney for Volkswagenwerk
Artiengesellschaft and Volkswagen
of America, Inc.
Exhibit B 39a
In THE
United States District Court
For THe Mippce District or PENNSYLVANIA
SELDON P. TODD, JR., ~
Plaintiff,
versus
VOLKSWAGENWERK ARTIENGE-
SELLSCHAFT, VOLKSWAGEN Civil Action
OF AMERICA, INC., No. 75-1307
VOLKSWAGEN ATLANTIC, INC. and
CAMERON AUTO, INC., a Pennsylvania
Corporation,
Defendants. a
ORDER
Anp Now, To Wrr, this 28th day of January, 1977, it is
hereby ordered that the within motion for reconsideration of
the defendants’ motions for summary judgment is hereby
granted. It is further ordered that all proceedings in the
United States District Court for this District of Columbia
shall be stayed until further order of the court.
BY THE COURT:
R. Dixon Herman, J.
Exhibit B
40a CERTIFICATE OF SERVICE
I hereby certify that'a copy of the foregoing has been
duly served upon the following counsel of record by
depositing the same in the United States Mail, postage
prepaid, in Harrisburg, Pennsylvania, on January 28, 1977:
Jules Fink, Esquire
KATZ AND FINK
331 Mongomery Center Building
8631 Fenton Street
Silver Spring, Maryland 20910
Attorneys for Plaintiff
G. Thomas Miller, Esquire
McNEES, WALLACE AND NURICK
Post Office Box 1166
Harrisburg, Pennsylvania 17108
Attorneys for Plaintiff
Arthur Silverblatt, Esquire
SILVERBLATT AND TOWNEND
1400 United Penn Bank Building
Wilkesbarre, Pennsylvania 18701
Attorneys for Defendant,
Volkswagen Atlantic, Inc.
GOLDBERG, EVANS AND KATZMAN
Post Office Box 966
Harrisburg, Pennsylvania 17108 =
Attorneys for Defendant,
Cameron Auto, Inc.
MEYER, DARRAGH, BUCKLER,
BEBENEK & ECK
By ..../$/, ANDREW J, Banyas, III
Andrew J. Banyas, III, Esquire
2500 Grant Building
Fourth and Grant Streets
Pittsburgh, Pennsylvania 15219
Attorneys for Defendants,
Volkswagenwerk Artiengesellschaft
and Volkswagen of America, Inc.
Se
Exhibit C 4la
In THE
United States District Court
Fox THE Muipoce District oF PENNSYLVANIA
SELDON P. TODD, JR., »
Plaintiff
. Civil Action
No. 75-1307
VOLKSWAGENWERK ARTIENGE- FILED
SELLSCHAFT, et al., —— ~
ug. 15, 1977
Defendants 4 Per ../5/ Donato R. Benny, Cisne
Deputy Clerk
MEMORANDUM
This is an action for personal injuries resulting from an
automobile accident which occurred in the District of
Columbia. The suit was begun in the District Court for the
District of Columbia within that jurisdiction’s three year
statute of limitations, and proper service was made on three
of the defendants. The fourth defendant, Volkswagen
Atlantic, was not amenable to service in the District of
Columbia, and plaintiff secured a transfer to this district,
where it appeared that personal jurisdiction could be had of
all defendants.
In this court all defendants moved for summary
judgment on the basis of Pennsylvania’s statutes of
limitations. In a memorandum and order dated January 10,
1977, we held that the breach of warranty claim against all
defendants was barred by the four year! limitation period
contained in the Uniform Commercial Code, which applies
in both Pennsylvania and the District of Columbia. 12A P.S.
§ 2-725; D.C. Code 28:2-725. As to the personal injury claim,
we concluded that the two year Pennsylvania statute of
limitations barred the action against Volkswagen Atlantic,
'! The automobile was purchased on May 23, 1968 and the action filed
in the District of Columbia on July 31, 1975.
42a Exhibit C
and accordingly granted summary judgment as to that
defendant. We declined, however, to apply the Penn-
sylvania statute for personal injuries to the remaining three
defendants, against whom the action had been begun and
service made within the three year limitation period of the
District of Columbia. Concluding that the interests of justice
would best be served if plaintiff were permitted to pursue
his claims against these defendants in the forum he had
initially selected, we retransferred the case to the District
Court for the District of Columbia.
The three remaining defendants, Volkswagenwerk
Artiengesellschaft, Volkswagen of America and Cameron
Auto, Inc.,? have moved for reconsideration of our decision
to retransfer the case to the District of Columbia, contending
that: (1) the entry of the transfer order without a formal
motion and hearing denied defendants due process of law;*
and (2) granting the motion for summary judgment of
Volkswagen Atlantic, while denying that of the other,
similarly situated defendants denied defendants equal
protection of the law.
The law appears clear that, having forwarded the file to
the District of Columbia court, we have lost all jurisdiction
of the case, and could not vacate the transfer order even if so
inclined.‘ Starnes v. McGuire, 512 F.2d 918 (D.C. Cir. 1974);
? A written motion and supporting briefs were filed on behalf of
Volkswagenwerk Artiengesellschaft and Volkswagen of America. At oral
argument counsel for Cameron Auto, Inc. appeared and indicated that
Cameron Auto joined in the motion of the other defendants.
3 Although no formal motion was made, transfer was suggested by
plaintiff in his “Opposition to Defendant Volkswagenwerk Artiengesell-
schaft’s Motion for Summary Judgment” (Document No. 37), at 6. The
question of transfer was also discussed, albeit cursorily, in defendants’
“Brief in Response to Plaintiff's Brief in Opposition to ... Motion for
Summary Judgment” (Document No. 44), at 9.
‘It has been suggested that the proper course for obtaining review of
a completed transfer is a motion for retransfer in the transferee District of
(continued )
Exhibit C 43a
Swindell-Dressler Corp. v. Dumbauld, 308 F .2d 276 (3d Cir.
1962); Drabik v. Murphy, 246 F .2d 408 (2d Cir. 1959); Wilson
v. Ohio River Co., 236 F. Supp. 96 (S.D. W. Va. 1964). Thus
any discussion of the propriety of our entering the order for
transfer without formal motion or hearing would be futile.
Defendants’ claim of denial of equal protection requires
some discussion, as it appears to reflect a misunderstanding
of the basis of our transfer order, and thus leads us to suspect
that our reasoning was not expressed with adequate clarity.
Since this order may ultimately be the subject of appellate
review, we feel compelled to briefly clarify the rationale
upon which it was based.
As we pointed out in our prior memorandum, the
starting point for analysis of the choice of law problem is
Van Dusen v. Barrack, 376 U.S. 612, 11 L.Ed.2d 945 (1964),
wherein the Court held that when a defendant procures a
transfer under 28 U.S.C. § 1404 (a), the transferee court is
obligated to apply the law that would have been applicable
in the transferor court. The Court specifically declined to
decide what law must be applied in cases where, as here, the
change of venue has been granted at the request of the
plaintiff; but clearly stated that the central concern in
analyzing the effect of a transfer under § 1404 (a) is “to
ensure that the ‘accident’ of federal diversity jurisdiction
does not enable a party to utilize a transfer to achieve a result
in federal court which could not have been achieved in the
courts of the state where the action was filed.” 376 U.S. at
638, 11 L.Ed. 2d at 962. Emphasizing the applicability of the
rule of Erie R. Co. v. Thompkins, 304 U.S. 64, 82 L.Ed. 1188
(1938), the Court further stated that “the critical identity to
be maintained is between the federal district court which
decides the case and the courts of the state in which the
action was filed.” 376 U.S. at 639, 11 L.Ed. 2d at 962.
Columbia court, which can then be reviewed by the transferee circuit.
Starnes v. McGuire, 512 F.2d 918, 924 (D.C. Cir. 1974).
44a Exhibit C
Consistently with the policy stated in Van Dusen, supra,
Professor Moore has concluded that no immutable choice of
law rule can be satisfactorily applied to all cases involving
plaintiff-initiated transfer, reasoning thus:
When the venue is proper in the transferor district,®
and service can be obtained there, there appears to be
no technical reason why the transfer might not be made,
and whatever dissembling is involved in seeking both
the most favorable law and the most convenient forum,
the plaintiff does not seek the application of the law of a
state that he could not obtain. In such a case, then, it
appears that the Van Dusen rule should apply after such
a transfer, though in weighing the “interests of justice” a
court might be reluctant to give much weight to
plaintiff's convenience.
When the venue in the district in which the action is
brought is proper, but service of process cannot be had
there, different considerations apply. In such a situation
plaintiff could not maintain his action in the district in
which he filed it, and therefore could not take
advantage of the law governing that district, since he
could not obtain jurisdiction of the defendant.
Therefore he should not be permitted to file his action
there for the purpose of capturing the law of that
jurisdiction for transportation to the jurisdiction in
which service of process can be obtained. In one fashion
or another courts have resisted such a maneuver.
1 Moore’s Federal Practice 40.145 [.4-5], at 1608.
Applying Professor Moore’s analysis to the instant case,
we find a very real distinction between the position of
Volkswagen Atlantic and that of the other defendants which
justifies the different treatment of the motions for summary
judgment.
* The quoted passage addresses the status of the suit prior to our order
of January 10, 1977, at which time the District of Columbia was the
transferor jurisdiction.
Exhibit C 45a
Plaintiff timely filed has action and effected service on
Volkswagenwerk Artiengesellschaft, Volkswagen of
America and Cameron Auto in the District of Columbia, and
thus, in our view, earned the right to litigate his claims
against those defendants under the law of the District of
Columbia regardless of any subsequent change of venue. As
to Volkswagen Atlantic, plaintiff was in an entirely different
position, as there was no personal jurisdiction in the District
of Columbia, and tiius the law of that forum never
“attached”. Plaintiff was then in a position of seeking a
jurisdiction where his claim against Volkswagen Atlantic
could be litigated. Pennsylvania was such a jurisdiction, but
for the major problem of a shorter statute of limitations; so
plaintiff sought to avoid this unfavorable aspect of
Pennsylvania law by “importing” the law of a jurisdiction
where the action could never have been maintained against
Volkswagen Atlantic. To allow plaintiff to obtain jurisdic-
tion through this sort of stratagem would have been
fundamentally unfair to the defendant, Volkswagen Atlan-
tic, and clearly contrary to the policy enunciated in Van
Dusen, supra. We therefore applied the Pennsylvania statute
of limitations to prevent such a result.
The transfer to this district was an attempt to take
improper advantage of Volkswagen Atlantic, but it was
wholly innocent as to the other three defendants. Plaintiff
did not seek to gain through the transfer any rights against
these defendants that had not already been secured in the
District of Columbia. To permit these defendants to use the
transfer to defeat a suit which was properly commenced in
accordance with the law of the transferor jurisdiction would
have been grossly unfair to plaintiff, and we therefore
denied their motions for summary judgment.
Our retransfer of the case was not, as defendants
suggest, an alternative to dismissal. Had we not retrans-
ferred the case, the only fair course would have been to
46a Exhibit C
permit the case to go to trial here under the law of the District
of Columbia. Given this choice, retransfer to the District of
Columbia seemed to be much the more desirable course, as
that is the jurisdiction in which the cause of action arose, in
which plaintiff originally elected to bring suit, and in which
the court’s grasp of the applicable law is certainly superior to
ours.
The motion for reconsideration will be denied.
An appropriate order will be entered.
/s/ R. Dixon HERMAN
“eee eeeeneeeeeeeeeeeeeeeeeeeeeenreeeee
R. Dixon Herman
United States District Judge
Dated: August 15, 1977.
ee SON
Exhibit C 47a
United States District Court
For THE Mippce District oF PENNSYLVANIA
Seldon Todd, Jr.
- No. 75-1307
, RECEIVED
Volkswagenwerk Artiengesellschaft Mar. 12, 1977
Meyer, Darragh, Buckler,
Volkswagen of America, Inc.
Bebenek and Eck
TaKE Notice that the above-entitled case has been set
for Motion for Reconsideration of this Court’s Order dated
Jan. 11, 1977 at 11 o’clock A.M., on Tuesday, March 22, 1977,
at Courtroom #1, Ninth Floor, Federal Building, Third and
Walnut Streets, Harrisburg, PA
/s/ DONALD R. BERRY
By ..... /s/ Carou L., STECHER, ||...
Caro. L. STECHER
Deputy Clerk.
Date March 9, 1977
To: Jules Fink, Esquire
G. Thomas Miller, Esquire
Andrew J. Banyas, III, Esquire
Virginia Loria, Court Reporter
Honorable R. Dixon Herman, Judge
48a Exhibit C
IN THE
United States District Court
For THe Mipp.e District oF PENNSYLVANIA
SELDON P. TODD, JR., ,
Plaintiff Civil No.
v. \ 75-1307
VOLKSWAGENWERK ARTIENGE- akon &
SELLSCHAFT, et al., Aug. 15, 1977
Defendants 7 Per ./5/ Donato R. Benny, Curnx
Deputy Clerk
ORDER
ANp Now, this 15th day of August, 1977, Ir ls OnpERED
that the motion of defendants, Volkswagenwerk Ar-
tiene sellschaft, Volkswagen of America and Cameron
Auto, Inc., for reconsideration of this court’s order of
January 10, 1977 be and it is hereby denied.
Ir Is FurtHER Orperep that our order of January 28,
1977, staying further proceedings in this matter be and it is
hereby vacated.
/s/ R. Dixon HERMAN
R. Dixon Herman
United States District Judge
Dated: August 15th, 1977.
— a. Sti tint eee
IN THE
United States District Court
For THE Mippce District oF PENNSYLVANIA
SELDON P. TODD, JR., >
Plaintiff
versus
VOLKSWAGENWERK Civil Action
ARTIENGESELLSCHAFT, VOLKS- No. 75-1307
WAGEN OF AMERICA, INC.,
VOLKSWAGEN ATLANTIC, INC.,
and CAMERON AUTO, INC., a
Pennsylvania corporation,
Defendants. )
MOTION ON BEHALF OF DEFENDANTS
VOLKSWAGENWERK ARTIENGESELLSCHAFT
AND
VOLKSWAGEN OF AMERICA, INC. TO
AMEND ITS ORDER IN COMPLIANCE WITH
RULE 54(b) OF THE FEDERAL RULES OF
CIVIL PROCEDURE AND TO CERTIFY ITS
INTERLOCUTORY ORDER UNDER 28 U.S.C. §1292(b)
The defendants Volkswagenwerk Artiengesellschaft
and Volkswagen of America, Inc. by their attorneys,
MEYER, DARRAGH, BUCKLER, BEBENEK & ECK,
move that this Honorable Court certify and make final its
grant of summary judgment in favor of Defendant
Volkswagen Atlantic, Inc., pursuant to Rule 54(b) of the
Federal Rules of Civil Procedure, and certify its in-
terlocutory order under 28 U.S.C. § 1292(b), based on the
following reasons:
1. Plaintiff initially filed this lawsuit on July 31, 1975 in
the United States District Court for the District of Columbia,
a Exhibit D
at Civil Action No. 75-1255, seeking damages for injuries
sustained, on January 24, 1973, in a motor vehicle accident on
Fifteenth Street, N.W., Washington, D.C. The complaint
named as defendants Volkswagenwerk Artiengesellschaft,
Volkswagen of America, Inc., Volkswagen Atlantic, Inc. and
Cameron Auto, Inc.
2. Thereafter, in the District of Columbia, the defen-
dant, Volkswagen Atlantic, Inc., moved to quash the service
and to dismiss the case for lack of jurisdiction.
3. On September 25, 1975, the court granted Volks-
wagen Atlantic’s motion.
4. Subsequently, the plaintiff moved to transfer the
action from the United States District Court for the District
of Columbia to the United States District Court for the
Middle District of Pennsylvania in an attempt to obtain
proper jurisdiction over Volkswagen Atlantic, Inc.
5. On September 26, 1975, the court ordered the transfer
to the Middle District of Pennsylvania pursuant to 28 U.S.C.
§1404(a).
6. Defendants Volkswagenwerk Artiengesellschaft and
Volkswagen of America, Inc. moved for summary judgment
under Rule 56 of the Federal Rules of Civil Procedure, on the
ground that the Pennsylvania two-year statute of limitations
relating to personal injury actions applied to the action sub
judice thereby barring this action.
a. Paragraph 7 of the complaint alleged that plaintiff
had purchased the automobile which is the subject
matter of this action from Defendant Cameron
Auto on or about May 23, 1968.
b. Paragraph 9 of the plaintiff's complaint alleged that
the accident underlying the lawsuit occurred on or
about January 24, 1973.
bal at at eet ——
Exhibit D 5la
c. This lawsuit was filed on January 31, 1975 — more
than two years after the accident — in the District
Court for the District of Columbia.
7. In response to the defendants’ motions, the
Honorable R. Dixon Herman without the benefit of oral
argument, granted a summary judgment in favor of
Defendant Volkswagen Atlantic, Inc., stating that:
“(by the time plaintiff filed this action it was too late to
use the Pennsylvania courts as a forum. His only choice
then was to bring suit in the District of Columbia and
accept the accompanying problem of service upon
Volkswagen Atlantic.”
8. At the same time, the court also denied the motions of
Defendants Volkswagenwerk Artiengesellschaft, Volks-
wagen of America, Inc. and Cameron Auto, Inc. because:
“Plaintiff has done everything necessary to preserve his
rights against these defendants under the laws of the
District of Columbia, having filed within the limitation
period and successfully served process upon them.”
9. The court simultaneously ordered the transfer of the
case back to the District of Columbia, on the ground that:
“A subsequent inprovident transfer in an attempt to
obtain jurisdiction over the fourth defendant should not
defeat the original timely filing. Plaintiff has indicated
. in his brief that he would be amenable to retransfer of
the case to the District of Columbia should we hold that
Pennsylvania statute of limitations bars the action in this
court. We agree that retransfer is the proper course.”
10. The defendants also asserted in their motion for
summary judgment that the four year statute of limitations
relating to actions for breach of warranty applied to these
facts and acted as a bar.
52a Exhibit D
11. Judge Herman accepted this position stating that:
“There is no conflict of laws problem to be resolved in
regard to the breach of warranty, as both Pennsylvania
and the District of Columbia have adopted the Uniform
Commercial Code, with its four-year limitation
applicable to all contracts for sale. 12A P.S. §2-725; D.C.
Code §28: 2-725. This four-year period begins to run, in
breach of warranty action, at the time of tender of
delivery of the allegedly defective goods, and not when
the injury occurs. (citations omitted) Plaintiff purchas-
ed his Volkswagen on May 23, 1968 and began this
action on July 31, 1975; thus the action is clearly time-
barred unless it comes within the exception as to future
performance set forth in the second sentence of §2-
725(2).
“There is nothing in the record to indicate that any
explicit warranty extending to future performance was
given in connection with the sale of plaintiff's
Volkswagen.
The warranty upon which plaintiff seeks to recover is an
implied one that the automobile manufactured by
defendants would provide reasonable protection to its
occupants in the event of collision. This is not within the
exception §2-725(2). To apply this exception, as
plaintiff urges, to an implied warranty merely because
the alleged breach was not readily discoverable would
completely negate the provision of §2-725(1) that the
cause of action accrues ‘when breach occurs, regardless
of the aggrieved party’s lack of knowledge of the
breach.’” (citations omitted).
12. The court by its order of January 10, 1977, granted
the motion for summary judgment by Defendant
Volkswagen Atlantic, Inc. and dismissed it from the action.
13. The same order denied the motions by Defendants
Volkswagenwerk Artiengesellschaft, Volkswagen of
America, Inc. and Cameron Auto, Inc.
Exhibit D 53a
14. On January 28, 1977, Defendants Volkswagenwerk
Artiengesellschaft and Volkswagen of America, Inc. filed a
motion for reconsideration on the grounds that:
a. The grant of Volkswagen Atlantic’s motion
together with the denial of the remaining defen-
dants’ motions caused a distinction among defen-
dants in the same class thereby constituting a
violation of equal protection of the law.
b. No motion for transfer or petition for transfer was
ever filed with the U.S. District Court for the
Middle District of Pennsylvania. Rather the court,
sua sponte, transferred the case back to the District
of Columbia.
c. Failure to give the defendants notice, hold a
hearing on the matter of transfer, and provide the
defendants an opportunity to be heard denied the
defendants due process of law within the Fifth and
Fourteenth Amendments of the Constitution.
15. On January 28, 1977, the court granted the motion
for reconsideration and stayed all proceedings in the District
Court for the District of Columbia until disposition of this
case.
16. On March 22, 1977, the court heard argument on
defendants’ motion to reconsider.
17. On August 15, 1977, the court entered its order
denying defendants’ motion for reconsideration and
countermanding its stay granted on January 28, 1977.
THE MOTION TO AMEND THE COURT'S ORDER
IN COMPLIANCE WITH RULE 54(b) OF THE
FEDERAL RULES OF CIVIL PROCEDURE
18. The grant of summary judgment in favor of the
defendant, Volkswagen Atlantic, Inc., one of the four
Sa Exhibit D
defendants in this action, has terminated the plaintiff's claim
against that party and there is no just reason for delay.
Wuererore, because the claim of the plaintiff against
Defendant Volkswagen Atlantic has been completely
adjudicated and because there is no just reason for delay, the
defendants, Volkswagenwerk Artiengesellschaft and Volks-
wagen of America, Inc., move that the court expressly
determine that there is no just reason for delay and expressly
direct the entry of a final judgment in favor of Defendant
Volkswagen Atlantic, Inc.
MOTION FOR THE CERTIFICATION OF
THE COURT'S ORDER UNDER 28 U.S.C. §1292(b)
19. The district court granted summary judgment in
favor of Volkswagen Atlantic, Inc. on the grounds that the
plaintiff's cause of action was barred by the two-year
Pennsylvania statute of limitations governing actions for
personal injury.
20. The district court denied the motions of Defendants
Volkswagenwerk Artiengesellschaft, Volkswagen of
America, Inc. and Cameron Auto, Inc. applying the three-
year District of Columbia statute of limitations governing
actions for personal injury.
21. If the two-year Pennsylvania statute were applied to
the actions against Defendants Volkswagenwerk Artienge-
sellschaft, Volkswagen of America, Inc. and Cameron Auto,
Inc., the plaintiff's cause against those defendants would be
time-barred.
22. The district court’s order involves a controlling
question of law as to which there is a substantial ground for
difference of opinion and an immediate appeal from that
order may materially advance the ultimate termination of
the litigation.
+ 2 nti eat Asana,
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Exhibit D 55a
WuererorE, Defendants Volkswagenwerk Artienge-
sellschaft and Volkswagen of America, Inc. request that the
court enter an order, pursuant to 28 U.S.C. §1292(b), stating
that this case involves a controlling question of law as to
which there is a substantial ground for difference of opinion
and that an immediate appeal from that order may
materially advance the ultimate termination of the litigation.
MEYER, DARRAGH, BUCKLER,
BEBENEK & ECK
AnpreEw J. Banyas, III, Esqume
MicHaet V. GiLBerti, Esquire
Attorneys for Volkswagenwerk
Artiengesellschaft and
Volkswagen of America, Inc.
56a Exhibit E
IN THE
United States District Court
For THe Mippce District or PENNSYLVANIA
SELDON P. TODD, JR., 7
Plaintiff
Vs.
VOLKSWAGENWERK
ARTIENGESELLSCHAFT, VOLKS-
WAGEN OF AMERICA, INC.,
VOLKSWAGEN ATLANTIC, INC.,
and CAMERON AUTO, INC., a
Pennsylvania corporation,
Defendants _,
ORDER
—
Civil Action
No. 75-1307
FILED
Harrisburg, Pa.
Jan. 3, 1978
a . fe Donavo R. Berry, CLerk
ee
Deputy Clerk
Anp Now, this 3rd day of January, 1978, Ir Is OrnpERED
that Defendants’ motion to certify its interlocutory order of
August 15, 1977 under 28 U.S.C. §1292(b) and Rule 54(b) of
the Federal Rules of Civil Procedure be and it is hereby
denied.
/s/ R. Dixon HERMAN
R. Dixon HERMAN
United States District Judge
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.