Petition — Executive Jet Aviation, Inc. v. Boyle

Geta t sa w

1 FILED

; JUN 19 {979

., JR., CLERK

IN THE

Supreme Court of the Gnited States

October Term, 1979

_ EXECUTIVE JET AVIATION, INC., Petitioner,

Vv.

HONORABLE PATRICIA A. BOYLE, Judge of the

United States District Court, Eastern District of

Michigan, Southern Division, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PATTERSON & PATTERSON,

WHITFIELD, MANIKOFF,

TERNAN AND WHITE

By: Gerald G. White

Rockwood W. Bullard III

Ten West Square Lake Road,

Ste. 300

Bloomfield Hills, Michigan 48013

(313) 333-7941

Counsel for Petitioner

June 15, 1979

i

INDEX

Page

Nees ss cseccenalmnmmmensonenes 1

‘TRE ER i ec PA 2

Nee a ss sansercosuinetninoceseenecoce 2

Si A Ne chinsineslit 2

OTE ENE EES A 3

Reasons for granting the Writ ...........................:..0s-sceeeeeoees 7

1. Where a District Court Enters A Remand Order

That is Not Only Erroneous But Also States it

is Based on Non-statutory Grounds, Issuance of

a Writ of Mandamus by the Court of Appeals is

the Appropriate Remedy. ....................-.---------+-e+-00e0 8

2. A Mere Proposed Order in State Court Proffered

by the Sole Non-diverse Party Defendant to

Eliminate it From State Court Action Can Not

Create Diversity Requisite to Federal Juris-

ES SLE 10

3. A Mere Proposed State Court Order Proffered

by the Sole Non-diverse Defendant to Eliminate

it From State Court Action Can Not Create Re-

moval Jurisdiction Diversity and Satisfy the

Requirements of 28 U.S.C. §1446(b) as an

**Other Paper’’ by Which a Case ‘‘Is or Has Be-

Cal acttsteencsvneceereannece 12

4. ‘*Waiver’’ of the Right to Remove is Not a Sta-

tutory Ground Upon Which Remand May be

BI tacicscistnsieene

ii

INDEX (Continued)

5. ‘*Waiver’’ of the Right to Remove Cannot Occur

Prior to Removability Arising, -............0.-20.....-.--- 16

Conclusion .............. ; 18

Appendix

Record of Opinion and Order of the District

Yi sachet OR SOON Noe PES MeNerce ren CenaeR ne aA IE, tel 18a-22a

Order of the Dietriet Uoert x... icine cisco 23a-25a

Order of the Court of Appeals ............2.......2..20.000- 29a-30a

iii

CITATIONS

Cases: Page

Davila v. Hilton Hotels International Inc., 97 F. Supp.

NE SII svispuisdiioh Mecho asain Gias cs hahah apace ink tadeac ee 16

Genie Machine Prod., Inc. vy. Midwestern Machinery

7g ee Orc, Ue COPED pests ee tcc 16

Gibson vy. Atlantic Coast Railroad Co., 299 F. Supp.

BD iain cain tides tacts sitlaatatblacas ca gliges Galeton an nit etait 13, 14

Goldstein v. Kern, 82 Mich. App. 723, 267 N.W.2d 165

RANGERS NEST SE Pa Sa Pe nok Me OO Weta eR oD PD IIS 10, 11

Gravitt v. Southwestern Bell Telephone Co., 430 U.S.

PE MEY nniigsitkctabisenndaceionsaneieiSioeanpsdischacnclaiiaTaieapbiccomeiuib nals 17

Houlton Sav. Bank v. American Laundry Machinery

Coe., TF. Gump. G06, S68 (1008) 2k ee 17

In re Merrimack Mutual Fire Ins. Co., 587 F.2d 642

2 EE ce 2 EMRE EY SEER ee FE alee Rote ROE am BOLE 9

Putterman v. Daveler, 169 F’. Supp. 125 (1958) —..000000.... 13

Rosenthal v. Coates, 148 U.S. 142 (1893) -20 ee. 16

Thermtron Products, Inc. v. Hermansdorfer, 423 U.S.

Se I aseirecbctbik op rank inc oettpn enlinnpelesibudbeacalamasnioeamaatien 8,9

Tiedman v. Tiedman, 400 Mich. 571, 255 N.W.2d 632

URE ce nitascslpscncaseintlaciessnsicreisstaenselcertaapanianaiuetiertachehisierilial 10, 11

Volvo Corp. of America vy. Schwarzer, 429 U.S. 1331

(Rehnquist, Cireuit Justice 1976) cert. denied, 430

I SD aisnncdtancttanstientihateaeiecakennennesinnccnisianencnuneiaigie 9

Whiteley Malleable Castings Co. v. Sterlingworth Ry.

Supple Co., BB FW. SOS (GBT) nen snnses nc nsnceeseeccscccseveseseses 17

STATUTES

Re I A IIE Do sctbidsgrecsesipiciijenietlshietasssalitscaitenegaciimcntdhaiadicaaes 2

Be iets TP, Si i eciecneastictcracintersieicinidnaibonabeks 2, 3, 10, 12, 15

Ot 6 Uh OE 3, 8, 9

IN THE

Supreme Court of the Gnited States

October Term, 1979

EXECUTIVE JET AVIATICN, INC., Petitioner,

Vv.

HONORABLE PATRICIA A. BOYLE, Judge of the

United States District Court, Eastern District of

Michigan, Southern Division, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

The Petitioner, Executive Jet Aviation, Inc. respectfully

prays that a writ of certiorari issue to review the Judg-

ment of the United States Court of Appeals for the Sixth

Circuit entered in this proceeding on March 22, 1979.

OPINION BELOW

The March 22, 1979, order of the Court of Appeals, un-

published, appears in the Appendix; no opinion was ren-

dered by the Court of Appeals for the Sixth Circuit.

On February 9, 1979, Respondent entered orders re-

manding cause in the principal cases of the Estate of

Harold Ray Carroll v. Gates Learjet Corporation, et al.,

and the Estate of Daniel Keith Green v. Gates Learjet Cor-

poration, et al., United States District Court for the Eastern

District of Michigan, Southern Division, Case Numbers

873324 and 873325 respectively, to the Cireuit Court for

the County of Wayne, Detroit, Michigan; copies of the

orders appear in the Appendix. The Respondent’s opinion

was pronounced orally on the record on February 2, 1979,

and is reproduced in the Appendix.

2

JURISDICTION

The Judgment of the Court of Appeals for the Sixth

Cireuit was entered on March 22, 1979. This Petition for

Jertiorari was filed within 90 days of that date. This

Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. Whether issuance of a Writ of Mandamus by the

Court of Appeals is the appropriate remedy where a Dis-

trict Court enters a remand order that is not only erroneous

but also states it is based on non-statutory grounds.

2. Whether a mere proposed order in State court prof-

fered by the sole non-diverse party defendant to eliminate

it from State court action can create diversity requisite to

federal removal jurisdiction.

3. Whether a mere proposed State court order prof-

fered by the sole non-diverse defendant to eliminate it

from State court action can create removal jurisdiction

diversity and satisfy the requirements of 28 U.S.C. § 1446

(b) as an ‘‘other paper’’ by which a case ‘‘is or has become

removable.’’

4. Whether ‘‘waiver’’ of the right to remove is a sta-

tutory ground upon which remand may be based.

5. Whether ‘‘waiver’’ of the right to remove may arise

prior to removability arising.

STATUTES INVOLVED

United States Code, Title 28:

§ 1446. Procedure for removal.

(b) ... If the case stated by the initial pleading

is not removable, a petition for removal may be filed

“ep

at

3

within thirty days after receipt by the defendant,

through service or otherwise, of a copy of an

amended pleading, motion, order or other paper

from which it may first be ascertained that the case

is one which is or has become removable.

9 1447. Procedure after removal generally.

* ~ .

(c) If at any time before final judgment it ap-

pears that the case was removed improvidently and

without jurisdiction, the district court shall remand

the case.

(d) An order remanding a case to the State court

from which it was removed is not reviewable on

appeal or otherwise...

STATEMENT OF FACTS

This Petition arises out of the proper removal pursuant

to 28 U.S.C. § 1446(b) by Petitioner of two consolidated

causes (principal cases) then pending in the Cireuit Court

for the County of Wayne, Detroit, Michigan. A. 12-18a.

Respondent. erroneously remanded the removed cases. A.

23a-25a. The Sixth Cireuit summarily denied Petitioner’s

Petition for Writ of Mandamus.’ A. 29a-30a.

Both principal cases arose out of the crash of a business

jet shortly after take-off from Detroit Metropolitan Air-

port on December 15, 1972. The pilot and co-pilot of the

1The order of the Court of Appeals (A. 30a) cites Kerr v. U.S.

District Court, 426 U.S. 394 (1976), and Bankers Life & Cas. Co.

v. Holland, 346 U.S. 379 (1959), as authority for its denial of

Petitioner’s petition for writ of mandamus. Neither case is ap-

plicable. To state that Petitioner has no right to a writ of man-

damus under the circumstances of the principal cases is to reject

Thermtron Prod. Inc. Vv. Hermansdorfer, 423 U.S. 336 (1976).

The Court has already stated that mandamus is the appropriate

remedy where remand is erroneous and based on non-statutory

grounds. Clearly, where the District court remands for erroneous

and non-statutory reasons, the relief of mandamus is appropriate

to prevent nullification of the removal statutes.

4

aircraft were killed instantly upon impact with a gasoline

storage tank approximately one mile from the end of the

take-off runway. The aircraft was a Model 23 Learjet,

manufactured by Gates Learjet Corporation, a Delaware

corporation with its principal place of business in Wit-

chita, Kansas,

The aircraft was owned by Howard W. Zantop, a citizen

of the State of Michigan, and operated by Zantop Airways,

Ine., a Michigan corporation with its principal place of

business at Detroit Metropolitan Airport, Romulus, Mich-

igan. The pilot, Daniel Keith Green, and co-pilot, Harold

Ray Carroll were both employees of Zantop Airways.

The Estate of Daniel Keith Green, deceased, by Mary

Lynn Green, administratrix, (plaintiff Green) and the Es-

tate of Harold Ray Carroll, deceased, by Marlene Carroll,

administratrix, (plaintiff Carroll) filed civil aetions in

Wayne County Cireuit Court, Detroit, Michigan, against

Gates Learjet Corporation, a foreign corporation, (defend-

ant Learjet); Executive Jet Aviation, Inc., a foreign cor-

poration, (Petitioner); and Howard W. Zantop, (defend-

ant Zantop), jointly and severally. The principal cases

bore Wayne County Civil Action Numbers 73-256770-CZ

and 74-019946-CZ respectively.

The principal cases proceeded on similar courses of dis-

covery after consolidation for discovery purposes and

thereafter were consolidated for trial in the Wayne County

Cireuit Court. In early November, 1978, plaintiff Green

reached a settlement with defendant Learjet in the amount

of $500,000. Settlement between plaintiff Carroll and de-

fendant Learjet was concluded in December, 1978, in the

amount of $350,000.

On November 21, 1978, the matters were assigned to

5

Irwin Burdick, Wayne County, Michigan, Cireuit Court

Judge and he retained the cases.

On November 22, 1978, Judge Burdick began hearing pre-

trial motions. On Thursday and Friday, November 23 and

24, settlement discussions took place between plaintiffs

Green and Carroll and defendant Zantop.

On Monday, November 27th, a chambers conference was

held by Judge Burdick with respect to defendant Zantop’s

motion for summary judgment, Plaintiffs stated at that

time they were withdrawing their opposition to the motion

and the court was advised of settlement between both

parties and Zantop. When court convened on November 27,

1978, defendant Zantop’s counsel raised the motion for

summary judgment, Plaintiffs withdrew opposition (plain-

tiff Green stating no opposition had been filed and plain-

tiff Carroll stating that they did not oppose). The court

noted on the record that payment had been or would be

received by plaintiffs from defendant Zantop and granted

the unopposed motion for summary judgment. A. 7a.

On December 4, 1978, counsel for defendant Zantop pre-

sented a proposed order granting summary judgment which

was approved by counsel for Petitioner and both plaintiffs.

However, although granted orally on November 27, 1978,

the order granting Zantop’s motion for summary judgment

was not presented to the court for signing or entry until

December 26, 1978.

On December 27, 1978, Petitioner Executive Jet filed its

petitions and bonds* for removal to the United States Dis-

“Counsel for Petitioner prepared its petition for removal before

non-diverse defendant Zantop’s counsel circularized the proposed

order. The bond for removal was executed and issued by the

surety’s attorney-in-fact and Petitioner’s counsel on December 5,

1978, in anticipation of filing removal papers upon signing of the

order by which non-diverse defendant Zantop would be eliminated

from the case making it removable. (A. 18a)

6

trict Court for the Eastern District of Michigan, Southern

Division. The principal cases were prospective companion

cases to one another as well as to a cause pending in United

States District Court, Ranger Insurance Co, v. Gates Lear-

jet Corporation (Case No. 75-572439), which case had been

assigned to Respondent and in which Petitioner is a third

party defendant. The principal cases were assigned to

Judge Boyle as companion cases under Local Rule XXIV

on January 24 and 25, 1979.

Plaintiff Green’s motion and brief for remand were filed

on January 12, 1979. Plaintiff Carroll’s motion and brief

for remand were filed on January 28, 1979. Petitioner filed

its briefs in opposition on January 31, 1979.

Argument on plaintiffs’ motions for remand were heard

by Respondent on February 2, 1979; Respondent gave her

opinion and ruling on the record, A. 18a-22a,. On February

9, 1979, the orders remanding cause were signed and en-

tered by the Respondent, A, 23a-25a. On February 14, 1979,

defendant Executive Jet’s petition for writ of mandamus

or in the alternative writ of prohibition was filed in the

United States Court of Appeals for the Sixth Cireuit. On

February 15, Petitioner sought a stay of Respondent’s

remand orders from Respondent, which request was de-

nied? A, 26a. On February 16, 1979, Petitioner sought

a stay of Respondent’s remand orders in the United States

Court of Appeals for the Sixth Circuit which was denied.

A. 27a. On February 21, i979, Petitioner applied for a stay

*Respondent’s denial of Petitioner’s motion for stay of her remand

order cites Thermtron Products, Inc. v. Hermansdorfer, 423 U.S.

336, 344 (1976), as authority for denial of the stay. A. 26a. Peti-

tioner does not agree that waiver is a ground.for remand. See

argument p. 16 and 17, infra.

7

of orders remanding cause to Sixth Circuit Justice Potter

Stewart, which application was denied. A. 28a. On Feb-

ruary 23, 1979, Petitioner’s application was reheard by

Justice Byron White and the entire Court, the application

was denied, A. 29a.

On March 22, 1979, Petitioner’s petition for writ of man-

damus was denied by the United States Court of Appeals

for the Sixth Cireuit. A. 29a-30a.

REASONS FOR GRANTING THE WRIT

Notwithstanding the 28 U.S.C. § 1447(c) bar to appellate

review of District Court remand orders, the use of man-

damus has been sanctioned by the Court in cases involving

error and remand on grounds not approved by the con-

trolling statutes. Petitioner contends that Respondent er-

roneously remanded the causes removed by Petitioner and

based her remand on grounds not authorized by the sta-

tute. Petitioner further contends that in such eases the

appropriate remedy is a petition for writ of mandamus

to the Court of Appeals and the summary denial by the

United States Court of Appeals for the Sixth Cireuit of

Petitioner’s petition for mandamus was improper and

constitutes approval of Respondent’s error. Respondent’s

erroneous remand creates chaos with the orderly operation

of a carefully drawn statute, the result of which is to force

all removals to be based on speculation and put removing

defendants to the task of divining when removal is ap-

propriate.* The lower courts’ action and its effect justify

issuance by this Court of a writ of certiorari to the Sixth

Circuit Court of Appeals.

‘Petitioner did not speculate on the appropriate time for removal.

See note 2, p. 5, supra.

8

WHERE A DISTRICT COURT ENTERS A REMAND

ORDER THAT IS NOT ONLY ERRONEOUS BUT

ALSO STATES IT IS BASED ON NON-STATUTORY

GROUNDS, ISSUANCE OF A WRIT OF MANDAMUS

BY THE COURT OF APPEALS IS THE APPRO-

PRIATE REMEDY.

Mandamus in the Court of Appeals is the appropriate

mode by which to require a District Court to hear a case

which has been erroneously remanded. Thermtron Prod-

ucts, Inc. vy. Hermansdorfer, 423 U.S. 336 (1976). Justice

White, delivering the opinion of the Court, wrote in Therm-

tron, supra at 353:

There is nothing . . . that leads us to question

the availability of mandamus . . . where the district

cuurt has ... remanded it on grounds not authorized

by the removal statutes. [Citations omitted.] [T]hese

cases would support the use of mandamus to prevent

nullification of removal statutes . . . (Emphasis

added.)

In Gravitt v. Southwestern Bell Telephone Co., 430 US.

723 (1977), in a per curiam opinion, the Court reviewed a

petitioner’s contention that a District Court remand order

stating the case was ‘‘improperly removed’’ was insuf-

ficient to satisfy the statute. The Court held, supra at 723:

The District Court’s remand order was plainly

within the bounds of § 1447(c) and hence was un-

reviewable by the Court of Appeals, by mandamus

or otherwise.

The Court then referred to Thermtron stating that it ‘‘re-

emphasized the rule that § 1447(c) remands are not review-

able.’’ (Emphasis added.) Supra at 724.

Thus, only remand pursuant to § 1447(c) is not review-

able; remand which is not made because a case is removed

‘‘improvidently and without jurisdiction’? does not come

9

within the 28 U.S.C. § 1447(d) bar to review of remand or-

ders contemplated by Thermtron and Gravitt. See also Volvo

Corp. of America v. Schwarzer, 429 U.S. 1331 (Rehnquist,

Circuit Justice 1976), cert. denied, 4830 U.S. 915 (1977).

Thermtron set-out the additional requirement that the

remand be based upon non-statutory grounds to be review-

able. Justice White wrote, supra at 348, 345:

The issue before us now is whether § 1447(d) also

bars review where a case has been properly removed

and the remand order is issued on grounds not au-

thorized by § 1447(d). * * *

We agree with petitioners: The District Court ex-

ceeded its authority in remanding on grounds not

permitted by the controlling statute.

The United States Court of Appeals for the Fifth Cireuit

succinctly restated the Thermtron holding in In re Merri-

mack Mutual Fire Ins. Co., 587 F. 2d 642, 645 (5th Cir.

1978) :

In sum, the Thermtron Court held that when a

district court enters a remand order that is not only

erroneous but also states that it is based on non-

statutory grounds, issuance of a writ of mandamus

by an appellate court is an appropriate remedy.

In the principal cases removed and remanded by Re-

spondent for which Petitioner sought mandamus, not only

was the Respondent’s remand order erroneous for the

reason that it misinterpreted and effectively rewrote the

controlling statute,> but her opinion and order both stated

‘‘waiver’’ as the basis for remand which is clearly a non-

statutory ground.® Her orders were therefore reviewable

by mandamus.

The denial by the United States Court of Appeals for the

5See p. 16, infra.

®See p. 17, infra.

10

Sixth Circuit of Petitioner’s petition for writ of mandamus

was therefor erroneous and justifies the granting of cer-

tiorari for review of the Judgments below.

A MERE PROPOSED ORDER IN STATE COURT

PROFFERED . Y THE SOLE NON-DIVERSE PARTY

DEFENDANT TO ELIMINATE IT FROM STATE

COURT ACTION CAN NOT CREATE DIVERSITY

REQUISITE TO FEDERAL JURISDICTION.

The federal statute controlling removal of cases which

are not removable by their initial pleadings, 28 USC

§ 1446(b), provides in pertinent part:

[A] petition for removal may be filed within thirty

days after receipt by the defendant, through service

or otherwise, of a copy of an amended pleading,

motion, order or other paper from which it may first

be ascertained that the case is one which is or has

become removable.

The language of the statute requires ‘‘receipt . . . of a copy

of an... order or other paper’’ which contemplates some

documentary notice to defendant. An oral court order does

not fall within the means by which a defendant may first

ascertain removability. Not only does federal law require

some documentary notice by the plain language of the

statute, but Michigan law requires that for an order to

become effective it must be reduced to writing and signed

by the Judge.

Goldstein v. Kern, 82 Mich App 723, 267 N.W.2d 165

(1978), involved as its controlling question, whether a sum-

mary judgment became effective upon a court’s oral pro-

nouncement. The Michigan court of appeals held that the

case of Tiedman v. Tiedman, 400 Mich 571, 255 N.W.2d 632

(1977), governed. In Goldstein, ‘‘the trial court orally

granted [summary judgment] at the close of the hearing.”’

11

Supra at 726. The court, relying on T'iedman, held, supra

at 726:

[T}he judge must declare that such statement is to

be given immediate effect as a judgment without any

further action or signing of a written judgment.

Tiedman, at 577. A review of the record in this case

clearly shows that the trial court’s oral pronounce-

ment did not possess these characteristics. Summary

judgment, therefore, did not become effective before

plaintiff moved to file his amended complaint. (Em-

phasis added. )

In the State court proceedings prior to removal, Wayne

County Cireuit Court Judge Irwin Burdick, stated:

THE COURT: All right. Therefore, at this time,

the Motion for Summary Judgment made by Zantop

against the two Plaintiffs and against Gates Learjet,

will be granted. (A. 7a-8a)

Plainly, by the language of Judge Burdick’s oral pro-

nouncement, he did not ‘‘declare’’ that his granting of

summary judgment was to be given ‘‘immediate effect as

a judgment without any further action or signing of the

written judgment. ... A review of the record in this case

clearly shows that the trial court’s oral pronouncement did

not possess these characteristics.’’ Goldstein, id. Hence,

the rule announced in Tiedman, supra at 576, 1 ist be given

effect :

The rule is well established that courts speak

through their judgments and decrees, not their oral

statements or written opinions. [Footnote omitted. ]

Generally, a judgment or order is reduced to written

form, as was contemplated in this case; until reduced

to writing and signed, the judgment did not become

effective and the parties remained married. (Em-

phasis added. )

Thus, Judge Burdick’s order did not become effective until

12

reduced to writing and signed by him on December 26,

L978. Sinee it was not effective until signed, the sole non-

diverse defendant, L[loward W. Zantop, was not eliminated

from the ease until December 26, 1978, and federal diversity

jurisdiction could not arise until that date. Therefore, the

ease did not become removable until December 26, 1978,

The Respondent held that the proposed order offered by

counsel for defendant Zantop, to which only two counsel

affixed their signatures on December 4, 1978, was an ‘other

paper’? by which the Vetitioner’s right to remove arose

within the meaning of the statute and that Petitioner’s

participation in State court proceedings between December

4 and December 27, constituted a waiver of its right. This

is wrong: & non-existent order cannot ereate diversity es-

sential to federal jurisdiction; without diversity the prin-

cipal eases could not be removed and no right to remove

existed; without a right to remove there was no right to

‘‘waive.’?

A MERE PROPOSED STATE COURT ORDER PROF-

FERRED BY THE SOLE NON-DIVERSE DEFEND-

ANT TO ELIMINATE IT FROM STATE COURT

ACTION CAN NOT CREATE REMOVAL JURIS-

DICTION DIVERSITY AND SATISFY THE REQUIRE-

MENTS OF 28 U.S.C. § 1446(b) AS AN “OTHER

PAPER” BY WHICH A CASE “IS OR HAS BECOME

REMOVABLE,

The language of the second paragraph of 28 U.S.C,

§ 1446(b) requires generally that the record of the court

from which removal is sought be the souree from which to

ascertain whether a case originally not removable has be-

come removable, The statute expressly states the sources

from which a defendant may ascertain such facts: ‘a copy

of an amended pleading, motion, order or other paper.’”’

13

In Putterman vy. Daveler, 169 F. Supp. 125, 129 (1958), the

court wrote that the language of the statute ‘* ‘a copy of an

amended pleading, motion [or] order’ must refer to a plead-

ing, motion or order in the case then pending and which

would appear in the record.’’ The court held that the phrase

‘other paper’? was not intended to override or supplant

‘*the expressed sources and refer to any extraneous paper

but means some other paper appearing in the record of the

Court which might not fall within the express language

used’? Id,

This concept of ‘other paper’’ has been enlarged where

the ‘other paper’? is reeeived by a removing defendant

and by such paper it may be determined that removability

exists or existed prior to its receipt.

In the only ease cited by tue “*espondent in support of her

ruling, Gibson v, Atlantic Coast Railroad Co,, 299 I. Supp.

269 (1969), a motion was filed to amend the State court

complaint to meet the $10,000 jurisdictional requirement of

28 U.S.C, § 1382. The amount in controversy would have met

federal jurisdictional requirements at the time of injury

had it been pleaded; however, it was necessary for the

plaintiff to properly plead. Since the time within which to

amend plaintiff’s complaint had expired, it was necessary

to obtain leave of court, Although not originally stating

sufficient damages to meet federal jurisdiction, the amended

complaint, and acknowledgment by the court that the

amended complaint was appropriate, was sufficient to meet

federal jurisdiction requirements. It was only necessary

for the court to fix a time at which the 80-day statutory

period for removal began to run. The court apparently

believed that the service of motion papers by which the

complaint was to be amended, although appearing in the

record of the case, would not be sufficient ‘‘other paper’?

14

to commence the 30-day period since the motion could have

been denied and removal then impossible by the motion

papers removability could not be ascertained. The motion

to amend complaint was then granted, confirming the legal

existence of a sufficient amount in controversy to meet fed-

eral requirements. The oral granting of plaintiff’s motion

to amend was not adequate to make the case removable

but the court held that service of the proposed order grant-

ing leave to amend was sufficient ‘‘other paper’’ to begin

measurement of the 30-day period because by it the case

first appeared as ‘fone which is... removable.’’ The pro-

posed order merely marked the measuring date and was

confirmatory of an existing fact.

Gibson is easily distinguished from the principal cases

removed by Petitioner and cannot provide reliable authority

for Respondent’s remands. In the principal cases Petitioner

removed, no ‘other paper’’ existed which revealed federal

diversity jurisdiction simply beeause diversity did not

exist until defendant Zantop was eliminated as a non-

diverse party defendant when Judge Burdick signed the

order. In Gibson, removability already existed requiring

only pleading the amount in controversy properly; in the

principal cases removed to Respondent’s court, remov-

ability could not exist by an ‘‘other paper.’’ The ‘‘other

paper’? must reveal a fact already in existence and only

in such case may that provision of the removal statute

become operative. In the principal cases the most that

could be revealed by the other paper relied upon by Re-

spondent was a prospective event which might create

diversity if it in fact occurred.

Thus, although it became apparent on December 4, 1978,

that the cases might become removable, they did not in fact

15

become removable until diversity existed; that is, when

Zantop was eliminated from the cases. No diversity could

exist until there was an ‘‘order’’ of the State court, dis-

missing the sole non-diverse party defendant Howard W.

Zantop. This did not occur until December 26, 1978.

Respondent’s orders for remand were erroneous on

their face, stating as grounds that a proposed order, which

could not take effect wAtil some future date, and therefore

could not create diversity requisite to federal removal juris-

diction, was a sufficient ‘‘other paper’’ within the meaning

of the statute. Such a ruling effectively rewrites a care-

fully drafted statute, in pertinent part, as follows:

28 U.S.C. § 1446(b) Respondent’s Revision

other paper from which it other paper from which it

may first be ascertained that may first be ascertained that

a case is one which is or has” a case is one which will be-

become removable. come removable.’

(Mmphasis added. ) ,

The order in the State court could not become effective

until signed by Judge Burdick on December 26, 1978. The

Respondent’s construction of a proposed order as an ‘‘other

paper’’ is error and in effect rewrites the controlling re-

moval statute and nullifying its validity. Such error must

not be disregarded and must not be permitted to prevail;

to do so emasculates the Act of Congress and vitiates Peti-

tioner’s right to remove. Moreover, it makes this part of

the removal statute completely unworkable and forces a

removing defendant to rely wholly on speculation.

7Respondent stated in her oral opinion: “I find that under 1446(b)

the earliest date at which the Defendant knew, through copy of

another paper, that it was first ascertained that the case was

one which would become or which was removable was December

4th, which was the date .. . that the Order for Summary Judg-

ment was presented for approval .. .”” A, 20a, (Emphasis added.)

16

“WAIVER” OF THE RIGHT TO REMOVE IS NOT A

STATUTORY GROUND UPON WHICH REMAND

MAY BE BASED.

Respondent ruled, and her order so states, that Peti-

tioner’s acts between December 4, (date of the proposed

order) and December 27, 1978 (date on which the Petitioner

removed), constituted ‘‘waiver’’ of its right to remove.

A, 22a, 24a,

The concept of waiver of the right to remove developed

over the years as a form of estoppel by which to prevent a

removing defendant from experimenting with the merits of

his case before removing to federal court. See Rosenthal vy.

Coates, 148 U.S, 142 (1893). By this concept, although a

defendant might waive the right to removal, the intent to

waive must be clear, unequivocal and inconsistent with re-

moval.® Genie Machine Prod., Inc. v. Midwestern Machinery

Co., 867 F. Supp. 897 (1974) ; Davila v. Hilton Hotels Inter.

national Inc., 97 VF. Supp. 82) (1951). The concept of

‘“waiver,’’? however, is not found in the statutes authoriz-

ing removal, Waiver is not expressly set-forth as a ground

for remand and, from the text of the applicable statutory

provisions, waiver cannot be found or implied. Hence, the

inescapable conclusion that ‘‘waiver’’ is a non-statutory

ground in the context of remand and remand may not be

solely premised thereon.

“WAIVER” OF THE RIGHT TO REMOVE CANNOT

OCCUR PRIOR TO REMOVABILITY ARISING.

Not only is the waiver of the right to remove non-sta-

tutory, but inasmuch as the right to remove did not accrue

SThis cannot be found in Petitioner’s actions. Clearly, Petitioner

always intended tu remove and acted consistent with its desire,

basing its actions on the established statutes and case law. See

note 2, p. 5, supra.

17

until the effective date of Judge Burdick’s order—and

Petitioner removed the next day—it can have no applica-

tion.

Waiver of the right to remove cannot occur before the

right to remove exists because ‘‘waiver is the voluntary

relinquishment of a known right.’’ Houlton Sav. Bank v.

American Laundry Machinery Co., 7 F. Supp. 858, 862

(1934). ‘*To operate as a waiver, the act of the party must

be irreconcilably repugnant to the assertion of his legal

right.’ Houlton, supra at 861, quoting Whileley Malleable

Castings Co. v. Sterlingworth Ry. Supply Co., 88 F. 853

(1897). Thus, the right to remove must be known and it

must be a legal right before waiver can accrue. Before an

effective order dismissing the sole non-diverse party de-

fendant, Howard W. Zantop, existed there was no right,

legal or otherwise, for Petitioner to remove and therefore

‘*waiver’’ is inapplicable.

Not only did the Respondent base her order for remand

upon the non-statutory, unauthorized grounds of waiver,

but Respondent also based her remand on the judge made

ground of waiver before any legal right to removal existed

and certainly before any waiver could arise. Even if

‘waiver’? is an acceptable judicial ground for remand, it

is not acceptable as the only stated ground where waiver

could not have existed.

Not only were the principal cases reviewable by man-

damus because of the utilization of a non-statutory basis

for remand, but even accepting waiver as possible, it could

not have formed a basis for remand of the principal cases.

Since it was by error that Respondent reached her con-

"See note &, p. 16, supra.

18 I

clusion that non-statutory grounds for remand existed,

the cases were ripe for mandamus by the Court of Ap- APPENDIX

peals. The Sixth Circuit’s summary denial of Petitioner’s IN THE

petition justifies this Court’s issuance of its writ of cer-

tiorari. SUPREME COURhT OF THE UNITED STATES

CONCLUSION | | October Term, 1979

For these reasons, a writ of certiorari should issue to No

review the Judgment of the United States Court of Ap-

peals for the Sixth Circuit.

if t Potiti

Respectfully submitted, EXECUTIVE JET AVIATION, INC., Petitioner,

PATTERSON & PATTERSON, . v.

WHITFIELD, MANIKOFF, HONORABLE PATRICIA A. BOYLE, Judge of the

eee ores eee United States District Court, Eastern District

/ — GERALD G. WHITE of Michigan, Southern Division, Respondent.

ROCKWOOD W. BULLARD III PETITION FOR A WRIT OF CERTIORARI TO THE

Ten West Square Lake Road, UNITED STATES COURT OF APPEALS

Ste. 300 FOR THE SIXTH CIRCUIT

Bloomfield Hills, Mich. 48013

(313) 333-7941

Counsel for Petitioner

June 15, 1979

II

INDEX

Page

Chronological List of Relevant Docket Entries ............. la

Record of Wayne County Cireuit Court Judge Bur-

dick’s oral granting of Howard W. Zantop’s Motion

for Summary Judgment, dated Nov. 27, 1978 ............ 2a

Order for summary judgment for Howard W. Zantop

in Carroll vs. Gates. Learjet Corporation, et al., Filed

ek 1 geet A NEE nee BAY ORCL tn) Se AP MOUSER AE et lla

Petitioner’s Petition and Bond for Removal in Carroll

vs. Gates Learjet Corporation, et al., Filed Dee. 27,

WORE cose. eat ielarean tt bia Rg eae ose 12a

Record of Respondent’s opinion and order in Carroll

vs. Gates Learjet Corporation, et al., dated Feb. 2,

coe FE RA AE tae CR aR AUR ECL Reale foe idee RAR 18a

Respondent’s order remanding cause in Carroll vs.

Gates Learjet Corporation, et al., Filed Feb. 9,

BARE | ssscxcecsistatan se easensSoaahio ale mebeza saaleiiamandteg au eacsutetan 23a

Respondent’s order denying Defendant’s motion for

stay in Green and Carroll vs. Gates Learjet Corpora-

tion, et al., Filed Feb. 15, 1979 ................-....-.scsccscecsesesse- 25a

United States Court of Appeals for the Sixth Circuit’s

denial of motion for stay in Green and Carroll vs.

Gates Learjet Corporation, et al., Filed Feb. 16,

1979 |

*Substantially identical documents were filed in both principal

cases. Only one is reproduced in the Appendix for brevity.

+The attachments to the petition and bond have been deleted as

redundant or immaterial.

¢The transcript bears the entitlement of only the Carroll case

although the transcript is applicable to both principal cases.

Ill

Page

Supreme Court of the United States denial of motion

for stay by Sixth Cireuit Justice Potter Stewart in

Green and Carroll vs. Gates Learjet Corporation, et

al., Filed Feb. 21, 1979 ..................... sbasandncinic debate ... 28a

Supreme Court of the United States denial of motion

for stay by Justice White in Green and Carroll vs.

Gates Learjet Corporation, et al., Filed Feb. 23,

BI ni. nokschaceinies Wes. tapbncecuaciigtcssiabel tine iglabbdnioloonarepaibadvee 29a

United States Court of Appeals for the Sixth Cireuit

denial of petition for writ of mandamus in Executive

Jet Aviation, Inc. vs. Honorable Patricia A. Boyle,

7 Bo YM, SSE emtsE me amemes trams care 29a

Feb.

15

16

23

25

Docket Entries la

CHRONOLOGICAL LIST OF

RELEVANT DOCKET ENTRIES

Order granting summary judgment to non-diverse

defendant Howard W. Zantop signed by Judge

Burdick.

Petitioner’s petition and bond for removal filed.

Plaintiff Green’s motion and brief for remand

of cause filed and received by defendant Execu-

tive Jet.

Plaintiff Carroll’s motion and brief for remand

filed and received by defendant Executive Jet.

Defendant Executive Jet’s answer and brief in

opposition to plaintiffs’ motions for remand.

Orders remanding cause signed and entered by

District Court.

Defendant Executive Jet’s petition for writ of

mandamus or in the alternative, writ of prohibi-

tion filed in the United States Court of Appeals

of the Sixth Circuit.

Defendant Executive Jet’s motion for stay de-

nied by Judge Boyle.

Defendant Executive Jet’s motion for stay de-

nied by the United States Court of Appeals for

the Sixth Circuit

Defendant Executive Jet’s motion for stay de-

nied by Sixth Circuit Justice Potter Stewart.

Defendant Executive Jet’s motion for stay de-

nied by the United States Supreme Court.

2a Docket Entries

Mar. 22 Petitioner Executive Jet’s petition for writ of

mandamus denied by the United States Court of

Appeals for the Sixth Circuit.

STATE OF MICHIGAN ~

IN THE CIRCUIT COURT FOR THE

COUNTY OF WAYNE

ESTATE OF DANIEL KEITH GREEN,

Plaintiff,

-v- Civil Action

GATES LEARJET CORPORATION, No.

EXECUTIVE JET AVIATION, and 73-256770-CZ

HOWARD ZANTOP, jointly and

severally

Defendants.

ESTATE OF HOWARD RAY CARROLL,

deceased, by MAPLENE CARROLL,

Administratrix,

Plaintiff,

-v- Civil Action

GATES LEARJET CORPORATION, No.

EXECUTIVE JET AVIATION and 74-019946-CZ

HOWARD ZANTODP, jointly and

severally,

Defendants.

Proceedings had before the HONORABLE IRWIN H.

BURDICK, Circuit Judge, Third Judicial Cireuit Court,

held at Room 432 Lafayette Building, Detroit, Michigan

on November 27, 1978.

Motion for Summary Judgment 3a

APPEARANCES:

ROBERT B. INGRAM, ESQ.

The Belli Building

722 Montgomery Street

San Francisco, California 94111

Appearing on behalf of Plaintiff Green.

LAWRENCE P. CANYOCK, ESQ.

44625 Cass Avenue

Utica, Michigan 48087

**also on behalf of Plaintiff Green.

LOUIS DEMAS, ESQ.

Suite 114 Clausen Building

16000 West Nine Mile Road

Southfield,Michigan 48075

Appearing on behalf of Plaintiff Corroll.

GERALD WHITE, ESQ.

Ten West Square Lake Road

Bloomfield Hills, Michigan 48013

Appearing on behalf of Defendant Executive

Jet Aviation.

ROCKWOOD W. BULLARD III, ESQ.

Ten West Square Lake Road

Bloomfield Hills, Michigan 48013

**Appearing on behalf of Defendant Executive

Jet Aviation.

DAVID ADAMS, ESQ. and DONALD SHELY, ESQ.

400 Renaissance Center

Detroit, Michigan 48226

Appearing on behalf of Gates Learjet, Defendant.

4a Motion for Summary Judgment

JOHN LYNCH ESQ.

3250 Guardian Building

Detroit, Michigan

Appearing on behalf of Howard Zantop, Defendant.

(Tr-3)

Detroit, Michigan

Monday, November 27, 1978

Morning Session.

THE COURT: This is the case of the Estate of Green

and Carroll against Gates Learjet Corporation, et al. We’ll

now hear from the ‘‘et al.”

MR. LYNCH: John Lyneh, your Honor, appearing on

behalf of Howard Zantop, Individually. Our purpose in

being before you this morning is to put before you a Mo-

tion for Summary Judgment that has been pending and

was originally scheduled for November 15th, the date—

the most recent date of trial,

The record should reflect that all parties are presently

in court and represented. And it’s my understanding that

the Motion for Summary Judgment that has been sub-

mitted, has been opposed originally by the Plaintiff, and

the Court has had an opportunity to read those briefs.

There is also a memorandum of points and authorities

in opposition to that motion, by Gates Learjet. lt is my

understanding this morning that the opposition by the

estate of Daniel K. Green and the estate of Howard Ray

Jarroll will be withdrawn, and the opposition on behalf

(Tr-4)

of Gates Learjet will also be withdrawn.

I assume, under those circumstances, that the Motion

Motion for Summary Judgment da

for Summary Judgment on behalf of Howard Zantop in-

dividually, will be granted by this Court.

THE COURT: All right, let’s hear from other counsel.

MR. INGRAM: Yes, your Honor. Just as a matter of

housekeeping, I guess, I think the record will reflect that

Plaintiff Green and Carroll have never filed an opposition

to this Motion for Summary Judgment. The opposition was

filed by Gates Learjet.

In addition, your Honor, before any ruling on the Mo-

tion for Summary Judgment, I’d like one other matter

of housekeeping cleaned up, and that is, Howard Zantop, the

Defendant Howard Zantop had filed an amended witness list

to which we objected. And I understand at this time that

before your Honor rules on the Motion for Summary

Judgment, that Howard Zantop has agreed to withdraw

that witness list, as it was untimely.

MR. LYNCH: On behalf of the Defendant Howard

(Tr-5)

Zantop, | will withdraw two witness lists that were sub-

mitted after the original witness lists was submitted to

the Court.

THE COURT: All right; anybody else?

MR. DEMAS: Yes, Louis Demas for the estate of

Howard Ray Carroll. We have not, as Mr. Ingram stated,

filed an objection to this Summary Judgment, nor will we;

nor do we object to the Summary Judgment being entered.

MR. ADAMS: For the record, your Honor, David

Adanis, appearing on behalf of Gates Learjet Corporation.

It is true that Gates Learjet will withdraw its opposition

to the motion of Howard Zantop for Summary Judgment,

with the understanding that the granting of that motion

will be entered only on Zantop’s motion running against

6a Motion for Summary Judgment

Plaintiffs; that it will have no effect on any other cross-

claims, counter-claims or any other claims and these or

any other actions, and that Howard Zantop will dismiss

his cross-claim against Gates Learjet pending in this action

with prejudice and without costs.

On that basis, your Honor, Gates Learjet does not op-

pose the motion and withdraws its memorandum.

(Tr-6)

THE COURT: Anybody else want to speak on the

subject?

MR. WHITE: Yes, your Honor. Gerald White, speak-

ing on behalf of the Defendant Executive Jet. Through

the kindness of the Court and in the integrity of the attor-

neys involved, I am aware that there is a settlement be-

tween Howard Zantop, either in an individual capacity

or through an arranger insurance company. Sums of money

are being offered and/or accepted by the Plaintiffs, and

that I believe that there was oral opposition to Motion

for Summary Judgment. They were discussed with the

Court, so that I believe that before this matter is con-

cluded by the Court, there should be a disclosure either

by the attorney for Zantop or preferably, by attorneys for

the Plaintiffs’ estates, as to how much monies are involved,

so that they acquiesce in the granting of a dismissal of

Howard Zantop individually,

As counsel for Learjet says, there are other motions

that are going to be resolved after the Court has a hear-

ing on this one. But because I am the remaining Defendant,

I believe that there has to be a disclosure of the amounts

of settlement; the facts of the settlement and who is pay-

ing them.

Motion for Summary Judgment Ta

(Tr-7)

MR. INGRAM: Your Honor, this is not a dismissal.

As I understand, there’s a Motion for Summary Judgment

before the Court as to one party, and that is what this

is concerned about.

THE COURT: Well, I wnderstand that Mr. White

wants to preserve his right to disclosure, which would

have no effect on the Motion for Summary Judgment any-

way ; is that correct?

MR. INGRAM: I just want to set the record straight,

as far as the record is concerned. This is not a dismissal.

This is a Motion for Summary Judgment.

THE COURT: That is correct. It would be sort of

naive to take the position that there wasn’t any exchange

of money. Obviously there has been a transfer of money.

There is a question of whether or not it has to be disclosed.

That has no effect on the Motion for Summary Judgment.

And there are other motions pending before this Court

on the subject, with respect to the settlement involving

Gates Learjet Corporation. So, we’ll handle all that at

the same time. Is that satisfactory, gentlemen?

(All counsel concur.)

THE COURT: All right. Therefore, at this time, the

(Tr-8)

Motion for Summary Judgment made by Zantop against

the two Plaintiffs and against Gates Learjet, will be

granted.

The amended witness lists that have been filed by Zantop

will be ordered withdrawn. Is there anything else that

has to be resolved at this time?

MR. LYNCH: At this point, your Honor, I think you

also want to make an order to—with regard to a with-

8a Motion for Summary Judgment

drawal of cross-claim by Howard Zantop against Gates

Learjet and likewise their withdrawal of their cross-claim

by Gates Learjet against Howard Zantop, individually.

THE COURT: All right.

MR. ADAMS: May it please the Court, David Adams.

Gates Learjet would move to withdraw its cross-claim

against Howard Zantop. The withdrawal will be as is:

Howard Zantop’s withdrawal of its cross-claim ; with preju-

dice and without costs and with the understanding that

thereby Gates Learjet will not be prejudiced in any rights,

claims or the like, which it may have in its case pending

in Federal Court; that is Ranger versus Gates Learjet,

Incorporated.

MR. LYNCH: For the record, I would also like to state

(Tr-9)

that the withdrawal! of the cross-claim by Howard Zantop,

individually, is not meant to affect, in any way, claims

presently pending by Ranger Insurance Company and

Zantop Aviation, against Gates Learjet Corporation in

the United States District Court for the Eastern District

of Michigan here in Detroit.

And upon that stipulation on the record, I will with-

draw the cross-claim on behalf of Howard Zantop, in-

dividually, against Gates Learjet Corporation in these two

matters presently pending.

THE COURT: Anybody else want to speak on the sub-

ject?

MR. INGRAM: Yes, your Honor. It’s my understand-

ing the Court, in granting the Motion for Summary Judg-

ment, would be granting that with each side bearing their

own costs? Is that correct?

Motion for Summary Judgment 9a

THE COURT: Without costs. Anybody else want to

speak on the subject? Mr. White, any comments?

MR. WHITE: No, your Honor. I do not believe that I

can speak in connection with Mr. Lynch’s withdrawal or

resolution of claims that I’m not involved with,

(Tr-10)

THE COURT: All right. The Motion to Withdraw the

Cross-Claim by Zantop against Gates Learjet and the Mo-

tion to Withdraw Cross-Claim of Gates Learjet against

Zantop will be granted .

MR. LYNCH: Judge Burdick, if it’s all right, L’ll sub-

mit an order on this matter within the next couple of days.

THE COURT: All right.

MR. ADAMS: Your Honor, one further motion, and

that would be Gates Learjet’s Motion to Withdraw its

Cross-Claim against Executive Jet Aviation, previously

filed in this matter and that withdrawal is to be made

without prejudice and without costs, upon the same under-

standing which prefaced my Motion to Withdraw the

Cross-Claim against Howard Zantop.

THE COURT: All right, Mr. White, what do you have

to say?

MR. WHITE: As counsel has indicated to me earlier

that was going to be his plans and desires, I indicated to

him that I did not believe that Gates Lear had a valid

cross-claim against Executive Jet, because it was not filed

under the rules—the provisions made under the rules.

I don’t believe that I, as an attorney can stop him if the

(Tr-11)

Court wishes to give him permission. If he want to with-

draw his Complaint, be it pending in this court or not, I

do not believe that I can stop him. The Court has a right

10a Motion for Summary Judgment

to grant whatever the thing is or is not accurately pending.

MR. ADAMS: Your Honor, I would take issue with

the comment, with respect to the propriety and legality

of any cross-claim, the cross-claim which was filed against

Executive Jet Aviation, for the record.

THE COURT: All right, Motion to Withdraw the

Cross-Claim of Gates against Executive Jet will be granted.

Anything‘else?

MR. WHITE: Those are the only matters, as I under-

stand, were discussed in chambers for requirements to be

placed on the record, at this time.

THE COURT: Is that it?

MR. INGRAM: We still have the other pre-trial mo-

tions, your Honor.

STATE OF MICHIGAN)

) SS.

COUNTY OF WAYNE )

I, Aundrea Hill, do hereby certify that I have reperted

the proceedings had in the above-entitled cause set forth

and that I do further certify that the foregoing 12 pages

constitute a true and accurate transcript of the proceedings

stenographically reported therein.

/s/ AUNDREA HILL

Official Court Reporter

Detroit, Mi.

Dated: December 5, 1978.

Order lla

STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE

COUNTY OF WAYNE

ESTATE OF HAROLD RAY CARROLL,

Deceased, by MARLENE CARROLL,

Administratrix,

Plaintiff,

vs. No. 74-019,

GATES LEARJET CORPORATION, 946 CZ

et al,

Defendants.

ORDER FOR SUMMARY JUDGMENT AND

WITHDRAWAL OF CROSS CLAIM

Ata session of said Court held in the City-County Build-

ing, Detroit, Michigan on Nov. 27, 1978.

PRESENT: HONORABLE IRWIN BURDICK, Cir-

cuit Court Judge.

The Court, after hearing a Motion for Summary Judg-

ment on behalf of Howard W. Zantop, individually, against

the Estate of Harold Ray Carroll, and further viewing a

written Motion and Brief in support thereof for Summary

Judgment by Howard W. Zantop, and the Court being

further fully advised in the premises thereof;

IT IS HEREBY ORDERED THAT Howard W. Zantop

shall have an Order for Summary Judgment of No Cause

for Action in favor of Howard W. Zantop and against the

Estate of Harold Ray Carroll.

IT IS FURTHER ORDERED that Cross Claim by How-

ard W. Zantop against Gates Learjet Corporation, a for-

eign corporation, is hereby dismissed with Prejudice and

Without Costs; this Order is not meant to effect in any

12a Order

way whatsoever the claims or defenses presently pending

by Zantop Airways, Inc. and Ranger Insurance Company

against Gates Learjet Corporation, United States District

Court, Eastern District of Michigan, Southern Division,

Case No. 75-572-539.

/s/ IRWIN H. BURDICK

Cireuit Court Judge

Approved as to form:

/s/ LOUIS DEMAS

/s/ DONALD KE. SHELY

/s/ GERALD G. WHITE

JOHN J. LYNCH

A TRUE COPY

JAMES R. KILLEEN,

Clerk

Deputy Clerk

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ESTATE OF HAROLD RAY CARROLL,

Deceased, by MARLENE CARROLL,

Administratrix, Case No.

Plaintiff, 873324

-Vs- Wayne

GATES LEARJET CORPORATION, a County Civil

foreign corporation; Executive Action No.

JET AVIATION, INC., a foreign 74-019946-CZ

corporation; and HOWARD W. ZANTOP,

jointly and severally,

Defendants.

Petitioner’s Petition 13a

PETITION FOR REMOVAL

BOND FOR REMOVAL

Gerald G. White

Rockwood W. Bullard II

PATTERSON & PATTERSON,

WHITFIELD, MANIKOFFP,

TERNAN AND WHITE

Attorneys for

Defendant Executive Jet

Ten West Square Lake Road

Bloomfield Hills, Michigan 48013

(313) 333-7041

(Title of Court and Cause)

PETITION FOR REMOVAL

To the United States District Court for the Eastern

District of Michigan, Southern Division:

NOW COMES Executive Jet Aviation, Inc., a foreign

corporation, whose principal place of business’ is Colum-

bus, Ohio, Defendant herein, by its attorneys, Patterson

& Patterson, Whitfield, Manikoff, Ternan and White, and

respectfully petitions this Court pursuant te 28 USC 1441

and 1446 to remove an action commenced in the State

Court of Michigan for the following reasons and upon

the following grounds:

1. Plaintiff filed a Civil Complaint in the Cireuit Court

for the County of Wayne, State of Michigan, docket num-

ber 74-019946-CZ seeking damages against the Petitioner

herein. The Complaint was filed on or about June 21, 1974,

and served upon the Defendant.

l4a Petitioner’s Petition

2. Thereafter, on or about November 27, 1978, Plaintiff

consented, upon consideration being given, to the granting

of a summary judgment dismissing Howard W. “antop, the

sole non-diverse party defendant in the within cause, the

order for which was entered on or about December 26,

1978, and served upon this Defendant on or about Decem-

ber 26, 1978. A copy of said order and transcript of pro-

ceedings are attached hereto. Defendant Gates Learjet

Corporation was dismissed on or about December 12, 1978;

a copy of the Order dismissing Gates Learjet Corporation

is attached hereto.

3. The action described in paragraph one above, is a

civil action of which this Court has original jurisdiction

under the provisions of 28 USC 1332, as amended (diver-

sity of citizenship), and is one that may be removed to

this Court by petition of Defendant herein, pursuant to

the previsions of 28 USC 1441(a), in that it is a civil action

wherein the matter in controversy exceeds the sum or

value of $10,000.00 exclusive of interest and costs and is

between citizens of different states; and, pursuant to the

provisions of 28 USC 1446(b) in that, althoug not re-

movable by the initial pleadings, it has been ascertained

that the case has become removable by virtue of the Order

of December 26, 1978, dismissing Howard W. Zantop, the

non-diverse party hereto.

4. The named Plaintiff at the time the action was

commenced was and still is the Estate of Harold Ray

Carroll, Deceased, by Marlene Carroll, Administratrix

(Wayne County Probate Court Number 637, 984), a citizen

of the State of Michigan. The Defendant, Executive Jet

Aviation, Inc., at the time the action was commenced and

Petitioner’s Petition 15a

at the present is a corporation incorporated under the laws

of the State of Delaware, and was not and is not a citizen

of the State of Michigan. The principal place of busi-

ness of the Defendant was, at the time the action was

commenced, and continues to be Columbus, Ohio, and not

the State of Michigan. Gates Learjet Corporation, at the

time the action was commenced, was a corporation incor-

porated under the laws of the State of Delaware, and was

not a citizen of the State of Michigan. The principal place

of business of Gates Learjet Corporation was, at the time

the action was commenced Wichita, Kansas, and not the

State of Michigan. Howard W. Zantop was, at the time

the action was commenced, a citizen of the State of Michi-

gan, with his residence at 15270 Philomene, Allen Park,

Michigan.

5. Petitioner attaches hereto a copy of the Order for

Dismissal of Howard Zantop from the within cause and

a copy of this Court’s Ex Parte Order waiving the re-

quirement of attachment of all pleadings and process filed

in state court.

6. Petitioner attaches hereto a bond of good and suf-

ficient surety conditioned, as provided by 28 USC 1446(d),

that it will pay all costs and disbursements incurred by

reason of the removal proceedings hereby brought should

it be determined that this action is not removable or is

improperly removed.

16a Petitioner’s Petition

WHEREFORE, Petitioner prays for the removal of the

above captioned cause from the state court to this Court.

PATTERSON & PATTERSON,

WHITFIELD, MANIKOFF,

TERNAN AND WHITE

/s/By: GERALD G. WHITE

(P-22248)

/s/ By:

ROCK WOOD W. BULLARD, III

(P-26231)

Attorneys for Defendant

Executive Jet

Ten West Square Lake Road

Bloomfield Hills, Mich. 48013

(313) 333-7941

Dated: December 27, 1978

VERIFICATION

STATE OF MICHIGAN )

)

COUNTY OF OAKLAND )

Rockwood W. Bullard II], of lawful age, being sworn

upon oath, says that he is an authorized attorney of Peti-

tioner, that he has read the foregoing Petition for Removal

and that the representations in the Petition are true to the

best of his knowledge and belief.

/s/ ROCKWOOD W. BULLARD II

Subscribed and sworn to before

me this 27th day of December, 1978.

/s/ CLAUDIA E. WEST, Notary Public

Oakland County, Michigan

My commission expires : 2-7-79

Petitioner’s Petition l7a

(Title of Court and Cause)

BOND FOR REMOVAL

KNOW ALL MEN BY THESE PRESENTS: Execu-

tive Jet Aviation, Inc., as principal, and the Aetna Casualty

and Surety Company, a Connecticut corporation licensed

to do business within the State of Michigan, as Surety, are

held and firmly bound, jointly and severally, unto the Es-

tate of Harold Ray Carroll, Deceased, and its successors

and assigns, in the sum of Five Hundred ($500.00) Dollars,

for payment of which, well and truly to be made, we, and

each of us, bind ourselves, our successors and assigns,

jointly and severally by these presents.

WHEREAS, the condition of this obligation is such that:

The said Defendant has petitioned the United States Dis-

trict Court for the Eastern District of Michigan, Southern

Division, for removal to said Court of an action now pend-

ing in the Cireuit Court for the County of Wayne, State

of Michigan, wherein the Plaintiff is the Estate of Harold

Ray Carroll, Deceased, by Marlene Carroll, Administra-

trix, and the Defendant is Executive Jet Aviation, Inc.,

said action being numbered 74-019946-CZ.

NOW, THEREFORH, the condition of the above obliga-

tion is such that if the said Defendant shall pay the costs

and disbursements incurred by reason of the said removal

proceedings if it be determined that said action was not

removable or was improperly removed, then this obligation

18a Petitioner’s Petition

shall be null and void, otherwise it shall remain in full

force and effect.

EXECUTIVE JET AVIATION,

INC.

/s/ By:

ROCK WOOD W. BULLARD, IIT

(P-26231)

AETNA CASUALTY AND

SURETY COMPANY

A Connecticut Corporation

/s/ By:

RICHRD P. HUTTENLOCHER

Attorney-In-F act

Dated: December 5, 1978

UNITED STATES DISTRICT COURT

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ESTATE OF HAROLD RAY CARROLL,

Deceased, by MARLENE CARROLL,

Administratrix,

Plaintiff,

-Vs- Civil Action

GATES LEARJET CORPORATION, Number 873324.

a foreign corporation,

EXECUTIVE JET AVIATION, INC.,

a foreign corporation and

HOWARD W. ZANTOP,

Jointly and Severally,

Defendants. |

Excerpt of proceedings taken in the above-entitled matter

Opinion and Order 19a

before the HONORABLE PATRICIA J. BOYLE, United

States District Judge, on Friday, February 2, 1979, com-

mencing at or about the hour of 5:10 p.m.

APPEARANCES:

ROBERT B. INGRAM, ESQ. and

LAWRENCE P. CANYOCK, ESQ.,

Appearing on behalf of Mary Lynn Green

LOUIS DEMAS, ESQ.,

Appearing on behalf of Marlene Carroll

GERALD G. WHITH, ESQ., and

ROCKWOOD BULLARD, ITI, ESQ.,

Appearing on behalf of Executive Jet Aviation, Ine.

DAVID ADAMS, ESQ.,

Appearing on behalf of Gates Learjet Corporation

CLAUDIA BURTON, RPR

Official Court Reporter

(Tr-3)

Detroit, Michigan

Friday, February 2, 1979

5:10 p.m.

THE COURT: You may be seated.

The issues that have been raised by the Motion for Re-

mand and the Response are, as I see them, similar to what

both Counsel have directed themselves to.

The question of whether the dismissal was voluntary or

involuntary, whether the Petition to Remove was timely,

and whether there was a waiver of the right to remove

under 1446(b), which provides that within 30 days after

receipt by, let’s see, the Defendant through service or

otherwise of a copy of an amended Pleading, Motion, Or-

der, or other paper, from which it may first be ascertained

20a Opinion and Order

that the case is one which is or has become removable—

excuse me. Did someone say something?

MR. WHITE: No, Your Honor. No one did.

THE COURT: The question of whether the dismissal

was voluntary or involuntary does not, I believe, have to

be determined because of the rest of the Court’s ruling.

I find that under 1446(b) the earliest date at which the

(Tr-4)

Defendant knew, through copy of another paper, that it

was first ascertained that the case was one which would

become or which was removable was December 4th, which

was the date, according to the parties’ arguments, that the

Order—and to the affidavits—that the Order for Summary

Judgment was presented for approval; and for that, I am

relying on the Opinion of Gibson vs. The Atlantic Coast-

line Railroad and the citation of that case is 299 F. Supp.

269, which is very similar to the facts in this case.

There was an amended Complaint, there was a Motion

filed to amend the Complaint. The Motion was granted

orally on February 10th.

On February 19th the Defendant received the proposed

Order to be entered pursuant to the Court’s oral decision,

and the District Court for the Southern District of New

York held that the time began to run as of the presenta-

tion of the Order for approval.

The Court will also find that the Defendants actions in

the state court do constitute a waiver of the right to

removal.

The standard—the Court is aware that the evidence

must show a clear intent to waive, and the Court finds

from the following, not all of which occurred prior to De-

cember 4th—I should say prior to November 27th—but

Opinion and Order 2la

certainly, many of the items I am about to refer to did:

(Tr-5)

The response to the Motion in Limine; the ordering of a

transcript, apparently for the purposes of appeal; argu-

ment of the leave to amend, particularly the review of

depositions; and the argument of the evidentiary matters.

I should indicate also that the immediacy of the trial is

something that I am relying on in terms of the Court’s

ruling.

Moore on Federal Practice and Procedure indicates that,

Section 157(a),-as follows: ‘‘Where the action becomes

removable shortly before or at the trial, the defendant

must take immediate steps to remove the ease if his right

is to be preserved, and unless he does so, proceeding to or

continuing with the trial constitutes a waiver of the right

of removal, even though the 30 day period may not have

elapsed.’’

I think that what did occur here, that is to say, extensive

discussions and argument in Court on the record relating

to the admissibility of this evidence, was in the context of

the trial.

It would seem to me that the proper procedure for the

defense would have been to have asked Judge Burdick for

an adjournment to prepare the Petition for Removal. In-

stead, the merits to assert extent of the case were tested,

at least in the evidentiary context, and in the context of the

(Tr-6)

question of whether the Defendant should have been dis-

missed because of payment, especially in light. of the im-

mediacy of the trial. The Defendant should have taken

prompt action, and any lack of diligence on the part of Mr.

Lynch cannot be attributed to the Plaintiffs in this matter.

22a Opinion and Order

For those reasons, the Court will find that the removal

was waived, the right to remove was waived by clear action

of the Defendants, and the Plaintiff’s Motion to Remand

will therefore be granted. No costs will be imposed.

MR. INGRAM: Thank you, Your Honor.

THE COURT: Thank you, Counsel.

MR. WHITE: ‘Thank you, Your Honor.

THE COURT: Would the Piaintiffs present an Order?

MR. INGRAM: Yes, Your Honor. Promptly, Your

Honor.

MR. DEMAS: ‘Two separate Orders, Your Honor?

THE COURT: Yes. Two Orders, please.

I understand that there is need for prompt submission

because if the matter is going back it has to go this week

to go to Judge Burdick’s docket. That was what Mr. Pflep-

son just explained to me.

(Tr-7)

MR.INGRAM: Yes, Your Honor.

THE COURT: Thank you.

MR. INGRAM: Thank you, Your Honor.

THE CLERK: The Court is now recessed.

(The proceedings adjourned at 6:20 p.m.)

CERTIFICATE

I, CLAUDIA BURTON, DO HEREBY CERTIFY that

I have recorded the proceedings had in the above-entitled

matter at the time and place hereinbefore set forth, and

I do further certify that the foregoing is a true and ac-

curate transcript of my stenographic notes of the pro-

ceedings therein reported.

/s/ CLAUDIA BURTON, RPR

Official Court Reporter

Order Remanding Cause 23a

(Title of Court and Cause)

ORDER REMANDING CAUSE

At a session of said Court held in the Courtrooms of the

United States District Court at the City of Detroit, Mich-

igan, on February 9, 1979. PRESENT: Honorable PAT-

RICIA J. BOYLE, U.S. District Judge.

Petition for removal having been made by defendant

Executive Jet Aviation, Inc. to this Court pursusnt to 28

U.S.C. § 1446(b) on December 27, 1978, and plaintiff hav-

ing made and filed its motion for remand to the Wayne

County Cireuit Court, from which the within cause was

removed, and the Court having heard oral argument on

February 2, 1979, supplements its oral findings of facet

and conclusions of law with the following:

On November 27, 1978, the Wayne County Cireuit Court,

Judge Irwin Burdick presiding, orally granted summary

judgment for Howard W. Zantop, the sole non-diverse de-

fendant in the within action. On December 4, 1978, counsel

for defendant Howard W. Zantop presented a proposed

order to counsel for defendant Executive Jet and plaintiff

Green for approval, which proposed order was so approved

by said parties. On December 26, 1978, Wayne County Cir-

cuit Court, Judge Irwin Burdick signed an order granting

summary judgment to defendant Howard W. Zantop.

The date defendant Executive Jet received a ‘‘paper’’

by which the right to remove arose pursuant to 28 U.S.C.

§ 1446(b) was on December 4, 1978, when a proposed order

granting summary judgment in favor of defendant Howard

W. Zantop was presented for approval to counsel for de-

fendant Executive Jet.

Subsequent to December 4, 1978, and prior to defendant

Executive Jet’s removal on December 27, 1978, extensive

24a Order Remanding Cause

discussion between counsel relating to depositions took

place. Between December 4, and December 27, numerous

evidentiary arguments relating to said depositions were

made before Judge Burdick and ruled upon by him. Being

that the case had been assigned for trial before Judge

Burdick, and that the above arguments and rulings were

preliminary to selection of a jury, immediate action on the

part of defendant Executive Jet was required with respect

to removal.

The actions and conduct of defendant Executive Jet be-

tween approval of the proposed order granting semmary

judgment for Howard Zantop on December 4, 1978 and

filing its petition and bond to remove on December 27,

1978, constituted waiver of its right to remove.

No issue as to the timeliness of defendant Executive Jet’s

petition to remove exists for the reason that plaintiffs sub-

mitted to the question of timeliness in oral argument before

this court. The court finds it unnecessary hereby to reach

the issue of whether plaintiffs’ acts in settlement with

Howard Zantop constituted voluntary acts.

IT IS HEREBY ORDERED AND ADJUDGED, that

the within cause shall be and hereby is remanded to the

Jireuit Court for the County of Wayne, State of Michigan,

from which it was removed.

IT IS FURTHER ORDERED AND ADJUDGED that

the Clerk of this Court shall make out a certified copy of

this order remanding the within cause and that he shall

forward the same to the Clerk of the Cireuit Court of the

County of Wayne, State of Michigan.

IT IS FURTHER ORDERED AND ADJUDGED that

no costs shall be assessed to either party and defendant

Order Remanding Cause 25a

shall be and hereby is released from its removal bond.

/s/ PATRICIA J. BOYLE

U.S. District Judge

/s/ LOUIS DEMAS

Attorney for Plaintiff Carroll

/s/ GERALD G. WHITE

/s/ ROCKWOOD W. BULLARD III

Attorneys for Defendant

Executive Jet Aviation

(A True Copy)

/s/By: W. J. PRFLEPSEN, Deputy Clerk

U.S. District Court

Kastern District of Michigan

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ESTATE OF DANIEL KEITH GREEN,

Deceased, by MARY LYNN GREEN,

Administratrix,

Plaintiff,

-V8- Civil No. 8-73325

GATES LEARJET CORPORATION,

a foreign corporation ;

EXECUTIVE JET AVIATION, INC.,

a foreign corporation; and

HOWARD W. ZANTOP,

jointly and severally,

Defendants.

26a Order

ESTATE OF HAROLD RAY CARROLL,

Deceased, by MARLENE CARROLL,

Administratrix,

Plaintiff,

-Vs- Civil No. 8-73324

GATES LEARJET CORPORATION,

a foreign corporation;

EXECUTIVE JET AVIATION, INC.,

a foreign corporation; and

HOWARD W. ZANTOP,

jointly and severally,

Defendants.

ORDER DENYING DEF ®NDANT’S MOTION

FOR STAY

On February 15, 1979, the defendant moved the Court for

entry of an ex parte of this Court’s orders remanding the

above causes to state court. The Court being fully advised

in the premises, and it appearing that waiver is a ground

for remand not ‘‘wholly different from those upon which

§ 1447(c) permits remand,’’ Thermtron Products, Ine. v.

Hermansdorfer, 423 U.S. 336, 344 (1976), and that stay of

an unreviewable remand order would be inappropriate

under Rule 62(d), Fed. R. Civ. P.;

IT IS THEREFORE ORDERED that the motion for

stay pending the outcome of defendant’s petition for writ

of mandamus is hereby DENIED.

/s/ PATRICIA J. BOYLE

United States District Judge

Dated: February 15, 1979

Detroit, Michigan

Order 27a

(A True Copy)

/s/By: W. J. PFLEPSEN, Deputy Clerk

U.S. District Court

Eastern District of Michigan

FILED

February 16, 1979

JOHN P. HEHMAN, Clerk

No. 79-8018

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ESTATE OF DANIEL KEITH GREEN,

DECEASED, BY MARY LYNN GREEN,

ADMINISTRATRIX, AND ESTATE OF

HAROLD RAY CARROLL, DECEASED, BY

MARLENE CARROLL, ADMINISTRATRIX,

Plaintiffs-Respondents,

v. ORDER

EXECUTIVE JET AVIATION, INC.,

Defendant-Petitioner

Upon consideration of petitioner’s emergency motion for

stay or orders remanding cause and/or injunction to stay

state court proceedings, and it not appearing that appel-

lant has demonstrated substantial likelihood that it will

prevail on the merits,

It is ORDERED that the motion be and it hereby is

denied.

ENTERED BY ORDER

OF THE COURT

/s/ JOHN P. HEHMAN,

Clerk

28a Denial of Motion

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

Washington, D.C. 20543

February 23, 1979

Rockwood W. Bullard, III, Esquire

Ten West Square Lake Road |

Bloomfield Hills, Michigan 48013

Re: Executive Jet Aviation, Inc. v. Estate of —

Daniel Keith Green, etc., et al., A-748

Dear Mr. Bullard:

Your application for stay in the above-entitled case has

been presented to Mr. Justice Stewart, who has endorsed

thereon the following:

‘* Application denied

February 21, 1979

Potter Stewart”’

As per your request, the application was resubmitted to

Mr. Justice White who referred it to the Court. Enclosed

is an order of the Court in this ease.

Very truly yours,

MICHAEL RODAK, JR.,

Clerk

/s/ By: PATRICIA A. DEAN

Assistant Clerk

th:

Ene.

ec: Robert I. Ingram, Esquire

Lawrence Canyock, Esquire Louis Demas, Esquire

Clerk, U.S. Court of Appeals Clerk, U.S. District. Court-

6th Cire. (Your No. 79-8018) Eastern Dist.

(with copy of order toeach) (Your No. Civil 8-73324-5)

Denial of Motion 29a

FRIDAY, FEBRUARY 23, 1979

ORDER IN PENDING CASE

A-748 EXECUTIVE JET AVIATION, INC. V.

ESTATE OF DANIEL KEITH GREEN,

ETC., ET AL. |

The application for a stay of the orders of the USDC

for the Eastern District of Michigan, Southern Division,

(Civil Nos. 8-73324-5), dated February 9, 1979, and to en-

join Michigan State Court proceedings, presented to Mr.

Justice White and by him referred to the Court, is denied.

FILED

March 22, 1979

JOHN P. HEHMAN, Clerk

No. 79-1103

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

EXECUTIVE JET AVIATION, INC.,

Petitioner,

v. ORDER

HONORABLE PATRICIA A. BOYLE,

JUDGE OF UNITED STATES DISTRICT

COURT, EASTERN DISTRICT

OF MICHIGAN,

SOUTHERN DISTRICT,

Respondent

BEFORE: CELEBREZZE, LIVELY and ENGEL, Cir-

cuit Judges

This matter has been submitted upon petitioner’s petition

for writ of mandamus and/or writ of prohibition. The relief

of mandamus is a drastic remedy which should only be

30a Order

utilized where the party involved has a clear and un-

disputed right to the remedies sought, Kerr v. U. S. District

Court, 426 U.S. 394 (1976) or where the district court has

abused its discretion, Bankers Life and Cas. Co. v. Holland,

346 U.S. 379 (1959).

The district court Judge did not abuse her discretion in ,

finding that petitioner’s action and conduct constituted a

waiver of its right to remove the state causes to a federal

forum pursuant to 28 U.S.C. § 1446(b).

It is ORDERED that the petitioner’s petition for a

writ of mandamus and/or a writ of prohibition be and it

hereby is denied.

ENTERED BY ORDER

OF THE COURT

/s/ JOHN P. HEHMAN,

Clerk