Opposition — Executive Jet Aviation, Inc. v. Boyle

IN THE

Supreme Court of the United States

October Term, 1979

No. 78-1883

EXECUTIVE JET AVIATION, INC., Petitioner

Vv.

HONORABLE PATRICIA A. BOYLE, Judge of the

United States District Court, Eastern District of

Michigan, Southern Division, Respondent,

ESTATE OF DANIEL KEITH GREEN, Deceased,

by Mary Lynn Green, Administratrix, Respondent,

and

ESTATE OF HAROLD RAY CARROLL, Deceased,

by Marlene Carroll, Administratrix, Respondent,

jointly, as real parties in interest.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT.

RESPONDENT’S BRIEF IN OPPOSITION

ROBERT B. INGRAM, ESQ. LOUIS DEMAS, ESQ.

4340 Redwood Highway, Suite 114

Suite 133 Clausen Building

San Rafael, California 94903 16000 West Nine Mile Road

(415) 472-5450 Southfield, Michigan 48075

Co-Counsel for Respondents (313) 559-3940

Green and Carroll Counsel for

Respondent Carroll

CANYOCK & THUMM

By: Lawrence P. Canyock

44625 Cass Avenue

Utica, Michigan 48087

(313) 739-2882

Counsel for

July 18, 1979 Respondent Green

THE INLAND PRESS, DETROIT, MICHIGAN

INDEX

Page

Rann: UO ns nna catnsces nanan eciasncenstonticenee 2

Counter Statement of Facts -....00.002.22.20.2.2222-...---- see enea 2

Reasons for Denying Writ of Certiorari —............0.0...... 5

I.

II.

ITT.

IV.

Issuance of a Writ of Mandamus by the Court

of Appeals May Be Appropriate if Remand is

Based on Erroneous Grounds. However, Re-

mand based on an ‘‘Improvident’’ Removal,

is Immune From Appellate Review. -~.................

Summary Judgment, Eliminating the Sole

Non-Diverse Party Defendant from the State

Court Action, Can Create Diversity Requisite

to Federal Removal Jurisdiction. ~....................

A Proposed Order, Eliminating the Sole Non-

Diverse Party Defendant From the State

Court Action, Creates Removal Jurisdiction

and Satisfies the Requirements of 28 U.S.C.

§1446 (b) as an ‘‘Other Paper.’’ -..0000.-0.0.0.....

Remand is Appropriate Where the Right to

IIR: SE OU RN oe Siesta essa dbi an dSeccdn gin

nie EES SE ec ly EOE RE ee

es aieliuaneae

12

12

ii

CITATIONS

Cases: Page

Baker v. National Blvd. Bank of Chicago, 399 F. Supp.

RINE, CRIED Sloecaddovc eine acetate ceca aes ee 10

Champion Brick Co. v. Signade Corp., 37 FRD 2

he | Spleen Nea OTe Nene NN Pe Nae tetas gst kN 10

Eisman vy. Eisman, 86 Mich. App. 91, 272 N.W. 2d. 340

CRREIED eis ah ieareninetsriphsias ecaclbamctans sa ialmdeaale oneaiacican sna 7

Ford v. Roxana Petroleum Corp., 31 F. 2d 765

| TSR or aie iti Rue Mune Rie tes otea! Gre NNT 7,9

Fugard v. Thierry, 265 F. Supp. 743 (1967) 0... 9

Genie Machine Products, Inc. v. Midwestern Machinery

7O., Ge rs TO. DOT CENT OD oi tees 10

Gibson v. Atlantic Coast Line Railroad Co., 299 F.

NN Te AOE sicinccaGoncsecrasseaeancaseanccnpasecbinvesahbecatabaadads 8

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

BO GOIIRIID | saivnsien nd dacsicrusniornetinnte tat delete eielen iene: 6

Hamilton v. Hayes Freight Lines, 102 F. Supp. 594

CHIU acetic sb cis icwe ca acicieahe ied cates eae a Sco 6

Morgan’s L. & T., R. € 8. 8S. Co., v. Street, 47 Tex. Civ.

Bam. 208, 198 GW. SPO CIIGR onceee 10

Morris v. Vitele, 412 F. 2d 1174 (9th Cir. 1969) .......... 11

Rosentha! v. Coates, 148 U.S. 142 (1893) 22-0... 10

‘Saunders v. Smith, 86 Mich. App. 91, 272 N.W. 2d. 340

CRITI: sisccecebinssiccuctendadcenionanckionnisoumaeseaettaiee 7

73rd Precinct Station House, In re, 329 F. Supp. 1175

ERIE kccuscetisasivrunticingetebesatecanaicastaanetiaes 10

iil

Page

Stack v. Strang, 191 F. 2d 106 (2nd Cir. 1951) 0.0022... 6

Swan v. Community Relations, 374 F. Supp. 9,

(RUT O kiki ckeenenn hicriasnea dines 10

Waldron v. Skelly Oil Co., 101 F. Supp. 425

2.” | RAMI RESO NUE acta RUN FUNG ers ied ON bereits. sree AR 7,9

STATUTES

28 U.S.C. 460 OO) Wa ae 2, 7,8

RB TTR. SE Ts GIR iii ecniessinlnitectemnarnaorinn 5

IN THE

Supreme Court of the Anited States

October Term, 1979

No. 78-1883

EXECUTIVE JET AVIATION, INC., Petitioner

v. .

HONORABLE PATRICIA A. BOYLE, Judge of the

United States District Court, Eastern District of

Michigan, Southern Division, Respondent,

ESTATE OF DANIEL KEITH GREEN, Deceased,

by Mary Lynn Green, Administratrix, Respondent,

and

ESTATE OF HAROLD RAY CARROLL, Deceased,

by Marlene Carroll, Administratrix, Respondent,

jointly, as real parties in interest.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT.

RESPONDENT’S BRIEF IN OPPOSITION

The Respondents, ESTATE OF DANIEL KEITH

GREEN, Deceased, by Mary Lynn Green, Administratrix,

and ESTATE OF HAROLD RAY CARROLL, Deceased,

by Marlene Carroll, Administratrix, respectfully pray that

the Petition for Writ of Certiorari to Review the Judg-

2

ment of the United States Court of Appeals for the Sixth

Cireuit Court be denied.

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 based on erroneous

grounds,

2. Whether Summary Judgment, eliminating the sole

non-diverse party defendant from the State Court action,

can create diversity requisite to federal removal juris-

diction.

3. Whether a proposed order, eliminating the sole nou-

diverse party defendant from the State Court action, can

create removal jurisdiction diversity and satisfy the

requirements of 28 U.S.C. §1446 (b) as an ‘‘other paper’’.

4. Whether remand may be based on a ‘‘waiver’’ of

the right to remove.

COUNTER STATEMENT OF FACTS

_ After exhaustive and extensive discovery and Pre-Trial

proceedings, respondent Green settled with defendant

Gates Learjet, and said Defendant was dismissed in

October of 1978. A similar settlement with responder.

Carroll was reached and Learjet was dismissed accordingly,

on November 15, 1978. The following three days consisted

primarily of settlement conferences with the remaining

Defendants. Thereafter, the action was assigned to the

Honorable Irwin Burdick, Wayne County Circuit Court

Judge for immediate trial on November 21, 1978. On

3

November 22, 1978, Judge Burdick began hearing trial

motions (Motion in limine) prior to jury selection. No

proceedings were held on November 23 and 24 because of

the Thanksgiving holiday. On November 27, 1978, defend-

ant Howard Zantop’s Motion for Summary Judgment

(originally set for November 15, 1978) was heard. Respond-

ent Green and Carroll had not filed opposition to said

Motion for Summary Judgment and same as to defendant

Zantop wes so granted. Upon motion, the capiions of the

subject cases were amended, removing defendants Gates

Learjet and Howard Zantop, respectively. Counsel for

Howard Zantop and Gates Learjet did not appear or

participate further in the action and no transfer of money

from Howard Zantop to respondents has ever been made.

Petitioner Executive Jet Aviation, Inc., made no opposition

to the Motion for Summary Judgment.

On November 27, 1978, Respondents moved to bar

evidence of settlement negotiations with former defendant

Gates Learjet. Judge Burdick granted Respondent’s

motion. At this time, Petitioner sought, and was granted,

leave to move before the presiding Judge of the Cireuit

Court of Wayne County for adjournment of trial for the

purpose of filing an appeal of the order in limine. Said

motion was denied by the presiding Judge. Thereafter,

petitioner Executive Jet Aviation, Inc., secured a certificate

from the Court stenographer for purposes of perfecting

appeal to the Michigan Appellate Courts.

Beginning on November 28, 1978, after a motion by

Petitioner to amend the complaint was granted, evidentiary

discussions were ordered by Judge Burdick in anticipation

of jury selection. Said discussions and evidentiary hearings

were held on the dates of: November 28, 29, 30, 1978;

4

December 1, 4, 7, 8, 12, 13, 14, 15, 18, 19, 20, 21, and 27, 1978.

On December 27, 1978, petitioner Executive Jet Aviation,

Inc., removed said cause to the United States District

Court for the Eastern District of Michigan, Southern Divi-

sion. Prior to December 27, 1978, petitioner Executive Jet

Aviation, Inc., never requested a suspension of the trial

proceedings nor objected to the continuation of the trial

proceedings for the purposes of preparing their bond and

petition for removal. The cause was remand to the State

Court on February 9, 1979.

Trial Proceedings, after remand, were re-initiated before

Judge Burdick. On March 22, 1979, the jury returned:a

verdict in favor of respondents Green and Carroll against

petitioner Executive Jet Aviation, Inc. The Judgment was

entered on April 20, 1979.

1Petitioners proceeded to argue the merits of the case with regard

to the admissibility of certain deposition testimony. Counsel for

the parties made objections to questions in the deposition testi-

mony of witnesses J. O. Johnson, R. C. Adams, Horace Parham,

William Boggs, Virgil Gutridge, Robert Klapprott, Richard

Breer, Joseph Hine, Larry Patterson, William Tolbert, Ronald

Puckett, Robert Berry and Raymond Pahls.

Hearings were held before Judge Burdick and the Court ruled

on all objections on the depositions of J. O. Johnson, R. C. Adams,

Horace Parham, Virgil Gutridge made by each party, and 75%

of the deposition of Robert Klapprott. In the deposition of Virgil

Gutridge alone, Petitioner objected to and received rulings on

approximately two hundred (200) questions. The attorneys for

all three parties worked almost continuously on the deposition

testimony from November 27, 1978, until petitioner Executive

Jet Aviation, Inc., filed its Petition to remove this action to the

Federal Court on December 27, 1978 at 2:30 p.m.

5

REASONS FOR DENYING PETITION FOR

WRIT OF CERTIORARI

ISSUANCE OF A WRIT OF MANDAMUS BY THE

COURT OF APPEALS MAY BE APPROPRIATE IF

REMAND IS BASED ON ERRONEOUS GROUNDS.

HOWEVER, REMAND BASED ON AN “IMPROV-

IDENT” REMOVAL, IS IMMUNE FROM APPEL-

LATE REVIEW.

28 U.S.C. §1447 (¢), (d) provides that District Court re-

mand orders, based on an ‘‘improvident’’ removal, are

immune from Appellate review. Clearly, the Honorable

Judge Patricia M. Boyle, properly exercised her discretion

in remanding this cause of action in accordance with 28

U.S.C. §1447 (c). (Pet. App. 23a; 24a) Petitioner Executive

Jet Aviation, Inc., was ‘‘improvidert’’ in removing, having

waived any right to remove by continuing with the trial

Court proceedings without objection after the occasion

for removal arose. (See Counter Stateme:t of Facts, at

3, 4)

The Sixth Cirenit Court of Appeals denied Petitioner’s

request for a writ of mandamus, affirming Judge Boyles

diseretion in remanding for the reasons set-forth in her

Order of Remand. (Pet. App. 23a, 24a) Further, the Court

of Appeals held that the issuance of a writ of mandamus,

to circumvent the bar of 28 U.S.C. $1447 (d) to Appellate

review of remand orders, was a ‘‘drastic remedy . .

fonly to] be utilized where the party involved has a clear

and undisputed right to the remedies sought.’’? (Emphasis

added) (Pet. App. 29a, 30a) Not only is Petitioner’s right

to a remedy both unclear and disputed, there exists no

wrong in need of remedy.

6

SUMMARY JUDGMENT, ELIMINATING THE SOLE

NON-DIVERSE PARTY DEFENDANT FROM THE

STATE COURT ACTION, CAN CREATE DIVER-

SITY REQUISITE TO FEDERAL REMOVAL JURIS-

DICTION.

As the District Court Judge fuund the extensive dis-

cussions and evidentiary argument in which petitioner

Executive Jet Aviation, Inc., participated were in the

context of trial, immediate steps should have been taken

to preserve Petitioner’s right to remove.

The granting of the Motion for Summary Judgment was

the event that put Petitioner on notice of his right to

remove, Clearly, Executive Jet Aviation, Inc., cannot assert

that a written order controls when the time for removal

begins: In Stack v. Strang 191 F. 2d 106 (2d Cir. 1951),

the Court held the removal right arises even though the

state action would not be a final (or formal) dismissal since

leave to amend had been granted. The Defendant in Stack

had waited beyond the statutory period to remove before

making its motion, awaiting the receipt of the Plaintiff’s

amended complaint. Further, the right of removal is not

conditioned upon or dependent on final determination of

any of the state proceedings, Hamilton v. Hayes Freight

Lines, 102 F. Supp. 594 (E.D. Ky. 1952), and is certainly

not dependant upon a formal written order dismissing the

resident Defendant. Id. ; Stack, supra.

Accordingly, Michigan does not require a writing for an

order to have immediate effect. In Goldstein v. Kern, 82

Mich. App. 723, 267 N.W. 2d. 165 (1978), the Michigan

Court of Appeals held that an oral pronouncement will be

given immediate effect if the Judge so states. Further, if

the parties have acted in good faith in accordance, and

7

relied on the Judge’s oral statement, the order is final as

of the oral pronouncement. Saunders v. Smith, 86 Mich.

App. 1, 272 N.W. 2d. 174 (1978); Eisman v. Eisman, 86

Mich .App. 91, 272 N.W. 2d. 340 (1978).

Clearly, Judge Burdick’s grant of Summary Judgment

was to be given immediate effect, inasmuch as defendant

Howard Zantop never appeared further in the action.

Therefore, petitioner Executive Jet Aviation, Inc’s., right

to remove arose immediately, and since proceedings were

in the context of trial, additional proceedings on the merits

of the instant action (Motions in limine, ordering of tran-

script for appeal to the Michigan Appellate Court, the

hearing on Petitioner’s motion to amend their answer

which, if granted, would dismiss Respondent’s case, the

review of the depositions and the argument of evidentiary

matters, Pet. App. 5a, Tr-5) evidenced the Petitioner’s

willingness to further invoke the jurisdiction of the State

tribunal. Ford v. Roxana Petroleum, 31 F. 2d 765 (N.D.

Tex 1929); Waldron v. Skelly Oil Corp, 101 F. Supp. 425

(E.D. Mo. 1951).

A PROPOSED ORDER, ELIMINATING THE SOLE

NON-DIVERSE PARTY DEFENDANT FROM THE

STATE COURT ACTION, CREATES REMOVAL

JURISDICTION AND SATISFIES THE REQUIRE-

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

PAPER.”

98 U.S.C. §1446 (b) sets the time at which a Petition for

Removal is to be filed:

§1446—Procedure for Removal

(b) ... after receipt by the Defendant, through

service or otherwise, of a copy of ... [an] other

8

paper from which it may be first ascertained that

the case is one which is or has become removable.

(Emphasis added.)

Cireuit Court Judge Burdick granted Summary Judg-

ment for the sole non-diverse party by oral decree on

November 27, 1978. (Pet. App. 7a) On December 4, 1978,

Petitioner Executive Jet Aviation, Ine., received notice

by a proposed order embodying Judge Burdick’s decree

of Summary Judgment, that the cause of action had be-

come potentially removable. This proposed order was

submitted to Petitioner Executive Jet Aviation, Inc., and

the Respondents for approval, and same was so: approved

by the parties on December 4, 1978.

The question of whether a proposed order. satisfies the

notice requirement of $1446 (b) was answered by the Court

‘in Gibson v. Coast Line Railroad Co., 299 F. Supp. 269,

(S. D. N. Y. 1969). ;

In Gibson, the cause of action met all the requirements

for a removable case except that the $10,000.00 juris-

dictional amount had not been pleaded in the original

complaint. Plaintiff motioned to amend the complaint, in-

creasing the jurisdictional amount to a sum in excess of

$10,000.00. The Court granted this motion orally in open

Court and later, same was reduced to writing in the form

of a proposed order. In determining the time at which

the period for removal commenced pursuant to 28 U.S.C.

§1446 (b), the Court held: ‘*. . . certainly the service of

the proposed order on [date] starts the running of the

period [for removal].’’

In the ease at bar, as in Gibson, receipt of the proposed

order eliminating the sole non-diverse party was such

‘other paper’’ within the purview of 28 U.S.C. §1446 (b).

At this time, petitioner Executive Jet Aviation, Ine., had

9

notice that it must either stay the State Court proceedings

and motion for removal or waive its right to same. Peti-

tioner Executive Jet Aviation, Inc., chose the latter, pro-

ceeding with extensive litigation at the State Court level.

REMAND IS APPROPRIATE WHERE THE RIGHT

TO REMOVE IS WAIVED.

Clearly, the resident Defendant was removed from the

action upon oral grant of the Motion for Summary Judg-

ment made by Howard Zantop or presentment of the draft

of the written order to Petitioner. At that moment the

right to remove, if any did exist, arose. \ Defendant en-

titled to removal, waives that right by conduct demon-

strating its willingness to further involve the jurisdiction

of the State tribunal. Ford v. Roxana Petroleum Corp., 31

F. 2nd 765 (N.D. Tex. 1929); Fuyard v. Thierry, 265 F.

Supp. 743 (N.D. Ill. 1967).

Being in Trial creates an immediate obligation

on the party seeking removal to make some declaration as

to their intention to embrace federal jurisdiction. In Wal-

dron v. Skelly Oil Co., 101 F. Supp. 425 (E.D. Mo. 1951)

the Plaintiff had initiated his action against three corporate

Defendants. As Plaintiff’s counsel in Waldron began his

opening statement, he dismissed the two resident corpora-

tions leaving Skelly Oil Co., a foreign corporation, as the

sole Defendant. The Defendant waited until the end of the

Plaintiff’s opening statement before asking the Court for

leave to suspend the trial to petition for removal. The

District Judge denied the motion and the trial proceeded.

The Court ruled that ‘‘when the case becomes removable

during the process of the trial, the right to remove may

10

be waived by proceeding with the trial, unless timely objec-

tion is made.’’ 7d. at 426.

The Waldron Court in holding that:

. when a cause first becomes removable during

the process of a trial that the party must take im-

mediate steps to remove the case if his right is

preserved... 7

also cited Morgan’s L. d T. R. d& 8. S. Co., v. Street, 47

Tex. Civ. App. 194, 122 S.W. 270 (1909). In Street, the

Defendant was informed by way of the Court’s charges

to the jury, that the resident Defendant had been dismissed.

The Court held that this was the point at which Defendant’s

right to ;emove arose, and by allowing the trial Court

proceedings to continue without objection, the Defendant

waived its right to remove.

There is an obvious inequity in allowing a Defendant,

with a removable action, to proceed at the State Court

level, and then, being dissatisfied with the State Court

decisions, have the issues readjudicated in the Federal

Courts by way of removal. Rosenthal v. Coates, 148 U.S.

142 (1893); In Re 73 Precinct Station House, Borough of

Brooklyn, 329 F. Supp. 1175 (E.D. N.Y. 1971).

Petitioner Executive Jet Aviation, Inec’s., conduct in em-

bracing the jurisdiction of the State Court goes well beyond

mere minor involvement after the right to removal arose:

more than a single day to oppose a preliminary injunction

as in Swan v. Community Relations, 374 F. Supp. 9 (E.D.

Wis. 1974); or to prevent an auction of its assets as in

Genie Machine Products, Inc., v. Midwestern Machinery

Co., 367 F. Supp. 897 (W.D. Mo. 1974); or oppose a pre-

liminary injunction as in Baker v. National Blvd. Bank of

Chicago, 399 F. Supp. 1021 (N.D. Ill. 1975); or to avoid

default when the State Courts provided for a shorter time

11

to answer than the Federal Courts did to file the removal

petition in Champion Brick Co. v. Signade Corp., 37 FRD

2 (D. Md. 1965) and Morris v. Vitele, 412 F. 2d 1174 (9th

Cir. 1969) Executive Jet Aviation, Inc., instead of merely

taking a defensive posture, actively litigated the merits

of the case in the State Court without objection, and then

when it was not satisfied with the results received from

the State Court, sat silently back while harboring a secret

desire to have a final adjudication of the merits in Federal

Court.

By arguing the admissibility of deposition testimony of

six witnesses, Petitioners’ conduct surely demonstrated an

intent to further invoke the jurisdiction of the State Court

and abandon and waive its right of removal to the Federal

Courts. By actively participating in State Court proceed-

ings from November 27, 1978, through December 27, 1978,

without once raising to the State Court a motion for sus-

pension of the proceedings for time to prepare to apply

for removal and to secure the removal bond, Petitioner

waived its right of removal. It could not then remove to

Federal Court and in so doing receive a rehearing on the

evidentiary issues. Petitioner Executive Jet Aviation, Inc.,

by its own affirmative action, waived its right of removal.

Therefore, this case was properly remanded to the Courts

_of the State of Michigan.

12

CONCLUSION

For the reasons set-forth above, the Petition for Cer-

tiorari should be denied.

COUNSEL OF RECORD:

ROBERT B. INGRAM, ESQ.

4340 Redwood Highway, Suite 133

San Rafael, California 94903

(415) 472-5450

Co-Counsel for Respondents

Green and Carroll

LAWRENCE P. CANYOCK, ESQ.

44625 Cass Avenue

Utica, Michigan 48087

Appearing on behalf of Respondent Green.

LOUIS DEMAS, ESQ.

Suite 114 Clausen Building

16000 West Nine Mile Road

Southfield, Michigan 48075

Appearing on behalf of Respondent Carroll

GERALD WHITE, ESQ.

Ten West Square Lake Road

Bloomfield Hills, Michigan 48013

Appearing on behalf of Petitioner -

Executive Jet Aviation.

ROCKWOOD W. BULLARD III, ESQ.

Ten West Square Lake Road

Bloomfield Hills, Michigan 48013

Appearing on behalf of Petitioner

Executive Jet Aviation.

13

DAVID ADAMS, ESQ. and

DONALD SHELY, ESQ.

400 Renaissance Center

Detroit, Michigan 48226

Appearing on behalf of

Gates Learjet, Defendant.

JOHN LYNCH, ESQ.

3250 Guardian Building

Detroit, Michigan

Appearing on behalf of

Howard Zantop, Defendant.