Petition — Sheet Metal Workers' International Association v. Ben Carter (No. 80-733)

| Supreme Court, U, $,

FILED

80-733 NOV & 1980

, No. MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

SHEET METAL WorKERS’ INTERNATIONAL ASSOCIATION,

AFL-CIO, Petitioner,

Vv

BEN CarRTER, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

DONALD W. FISHER

720 National Bank Bldg.

Toledo, OH 43604

(419) 255-7368

Of Counsel: Attorneys for Petitioner

DONALD W. FISHER Co., Sheet Metal Workers’

L.P.A. International Association,

720 National Bank Bldg. AFL-CIO.

Toledo, OH 43604

JAMES T. LANGFORD

JACOBS AND LANGFORD,

P.A.

Suite 1000, Rhodes-

Haverty Bldg.

134 Peachtree St., N.W.

Atlanta, GA 30303

JACK L. COOPER

COOPER, COOPER,

MAIORIELLO &

STELNOKER

P.O. Box 1407

Augusta, Ga 30903

enn sen eee

ie

PRESS OF BYRON S. ADAMS PRINTING, INC., WASHINGTON, D.C,

QUESTION PRESENTED

Was the remand order of the district court issued

after entry of judgment on the jury verdict but prior to

disposition of a seasonably-filed motion for a new trial

or, in the alternative, for judgment notwithstanding the

verdict unreviewable on mandamus pursuant to 28 USC

1447(c) and (d)?

ill

TABLE OF CONTENTS

PAGE

rr tte alk he i

CITATION TO THE OPINIONS BELOW ...............00-- ]

Ee te ab aw dys ook 850.0 hb endovee 2

oa bin Sen acscsceesevseses 2

REASONS FOR GRANTING THE WRIT...............--455 5

The Court of Appeals has decided an important

Federal question in a way in conflict with applicable

ed, cd dd eu ss veces

REE AES SO SI Sk A a er 10

TABLE OF AUTHORITIES

CASES:

Browder v. Department of Corrections, of Illinois, 434

EEE 8

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

ESR ge 6, 9

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

I I gg ven sccccccececscccccs 4,5

Three J. Farms, Inc. v. Alton Box Board Co., 609 F. 2d

abn io ec povcedecccccecscece

United Mine Workers v. Gibbs, 383 U.S. 715 (1966) .... 8

STATUTES:

RE ae Es 2

RG ea

PREVIOUS PAGE WAS BLANK |

IN THE

Supreme Court of the Onited States

OCTOBER TERM, 1980

No.

IN RE BEN CARTER, Petitioner,

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

Petitioner prays that a writ of certiorari issue to

review the writ of mandamus granted by a panel of the

United States Court of Appeals for the Fifth Circuit in

the above-entitled case on May 30, 1980.

CITATION TO THE OPINIONS BELOW

The order of Judge Alaimo setting aside the jury

verdict and remanding the case to the Superior Court of

Richmond County, Georgia, is unreported. It appears in

Appendix A, infra. The opinion of the panel appears in

Appendix B and is reported at 618 F.2d 1093. The order

of the panel denying Petitioner’s motion for reconsidera-

tion and suggestion for reconsideration en banc is

unreported and appears in Appendix C.

JURISDICTION

The writ of mandamus was granted by the panel on

May 30, 1980. Petitioner’s motion for reconsideration

and suggestion for reconsideration en banc was denied

on August 13, 1980. This Court has jurisdiction to

review the judgment by writ of certiorari under 28 USC

1254(1).

STATUTES INVOLVED

28 U.S.C. 1447(c)

“If at any time before final judgment it appears

that the case was removed improvidently and

without jurisdiction, the district court shall remand

the case, and may order the payment of just costs.

A certified copy of the order of remand shall be

mailed by its clerk to the clerk of the State court.

The State court may thereupon proceed with such

case.”’

28 U.S.C. 1447(d)

‘An order remanding a case to the State court

from which it was removed is not reviewable on ap-

peal or otherwise, except that an order remanding a

case to the State court from which it was removed

pursuant to section 1443 of this title shall be

reviewable by appeal or otherwise.’’

STATEMENT OF THE CASE

The complaint alleging in broad, conclusory

language a conspiracy to deny Respondent, Ben Carter,

certain union membership and employment rights was

filed originally in the Superior Court of Richmond

County, Georgia, where it was tried to a jury which

r*

3

returned a verdict in his favor. The judgment entered on

the verdict was set aside on appeal by the Supreme

Court of Georgia on the ground that Petitioner, Sheet

Metal Workers’ International Association, AFL-CIO,

had not properly been served with process. Petitioner

was served with process in the manner provided under

state (Georgia) la-v thereafter and the Original action was

reinstituted.

Petitioner then removed the case to the federal court

on alleged federal grounds which Respondent never

challenged. Prior to the time the case was ready for trial,

however, Respondent made clear that his action was

based solely on a non-federal conspiracy theory, and it

was so tried before a jury. The federal-court jury

returned a verdict on the state-law tort claims in favor of

Respondent in the amount of $35,000.00 actual

damages; $110,000.00 punitive damages; and $5,280.00

attorney fees. Judgment thereon was entered May 25,

1979.

Petitioner filed a timely motion for a new trial or,

in the alternative, for judgment notwithstanding the

verdict' and also a suggestion that the court dismiss the

complaint pursuant to Rule 12(h)(3) on the ground of

lack of subject-matter jurisdiction and remand the case

to the Superior Court of Richmond County, Georgia,

for appropriate proceedings thereon.? The district court

after taking the motion and Suggestion under advisement

issued an order on December 6, 1979, granting

Petitioner’s motion to set aside the verdict and judgment

on the ground of lack of subject-matter jurisdiction and

remanding the case to the State court.

' A true copy of this motion is reporduced in App. D.

* A true copy of the suggestion is reporduced in App. E.

4

Judge Alaimo recognized the almost certain finality

and non-appealability of his remand order pursuant to

28 USC 1447(d). Thermtron products, Inc. v. Her-

mansdorfer, 423 U.S. 336 (1976). However, in order to

give Respondent an opportunity to ascertain whether

“‘another exception’’ to the prohibition of remand-order

review would or could be implied by the appellate court,

he stayed the December 6, 1979, order to permit Respon-

dent to institute an interlocutory appeal under 28 USC

1292, to be instituted within ten days after entry of his

order, i.e., by December 16, 1979. The order stated in

pertinent part:

‘“‘The Order of remand is stayed pending appeal

of this order as provided in 28 USC §1292(b). In the

absence of such appeal, the stay shall be dissolved

instanter.’’

Appeal was not initiated by Respondent under 28 USC

1292 within the ten day period provided thereunder;

whereupon the stay of the remand order was dissolved

by its own terms on December 16, 1979. No further ap-

pellate action was attempted until January 7, 1980, on

which date Respondent filed the within Petition for Writ

of Prohibition and/or Writ of Mandate.

A panel of the Court of Appeals, on January 18,

1980, over a month after the district court’s stay of ex-

ecution had been dissolved instanter, entertained Respon-

dent’s Petition and entered an order continuing in effect

‘pending appeal’’ the stay of execution of the December

6, 1979, order which, in actuality, had long since been

dissolved by its own terms. Then, on May 30, 1980, the

panel granted Respondent’s writ of mandamus and, inter

alia, returned the case to the district court with instruc-

tions to reconsider the question whether Respondent’s

non-federal claims were justiciable under its pendent

jurisdiction.

5

The appellate court’s rationalization for review was

that Judge Alaimo’s order was issued after final judg-

ment. The panel held that appellate review was foreclos-

ed pursuant to 28 USC 1447(c) and (d) only when the re-

mand order was issued before final judgment, and that

the motion for a new trial or, in the alternative, for

judgment notwithstanding the verdict did not stay or

otherwise impair the finality of the judgment within the

meaning of the statute.

Petitioner filed a timely motion for reconsideration

and suggestion for reconsideration en banc which was

denied by the panel on August 13, 1980. The entire court

was polled at the request of one of the members thereof,

but a majority of the circuit judges who are in regular

active service did not vote for a rehearing en banc.

REASONS FOR GRANTING THE WRIT

The Court Of Appeals Has Decided An Important

Federal Question In A Way In Conflict With Applicable

Decisions Of This Court

The panel decision is at war with the settled inter-

pretation of 28 USC §§1447(c) and (d) as enunciated by

this Court in Thermtron Products, Inc., v. Her-

mansdorfer, 423 U.S. 336 (1976). There the Court said:

‘“There is no doubt that in order to prevent delay

in the trial of remanded cases by protracted litiga-

tion of jurisdictional issues, United States v. Rice,

327 U.S. 742, 757 (1946), Congress immunized from

all forms of appellate review any remand order

issued on the grounds specified in §1447(c), whether

or not that order might be deemed erroneous by an

appellate court.”’

The district court below remanded the case to the state

court on the precise statutory ground set our in §1447(c),

6

i.e., that it was removed improvidently and without

jurisdiction. This, the Court in Thermtron stated, meant

that the remand order was ‘‘not reviewable on appeal or

otherwise.’’ 28 USC 1447(d). Notwithstanding this, the

panel held that Thermtron was not controlling and that

the remand order was reviewable because it was issued

after entry of judgment on the jury verdict. The timely

filed motion for a new trial or, in the alternative, for

judgment notwithstanding the verdict was held to be

insignificant for purposes of 28 USC 1447(c) and (d).

It is respectfully submitted that here, as in Gravitt v.

Southwestern Bell Telephone Co., 430 U.S. 723 (1977), a

panel of the Fifth Circuit is unwilling to accept and

apply Thermtron in its full sweep. The _ panel’s

hypothesization in footnote 6 to its opinion that the

congressional concern underlying 28 USC 1447(c) was

only ‘‘to allow remand for a full trial’’ and its inference

that Congress, therefore, did not disfavor appeal of

remand orders after a ‘‘full trial’? in a federal court has

occured is unacceptable in view of the express language

of the statutes involved, their | «slative history, and this

Court’s holding in Thermtron.’ Moreover, a ‘‘full trial’’

* The full text of footnote 6 is as follows:

“In arguing that the order is not viewable, the

International contends that its timely motions for judgment

n.o.v. and new trial stayed the finality of the judgment. These

motions are not included in the record before us. Nevertheless,

we are of the opinion that considerations ‘staying’ the time for

filing an appeal because of pending motions are not relevant to

when a judgment is ‘final’ under §1447(c). As noted above, the

congressional policy was to allow remand for a full trial.

Because a full trial has occurred at the iime motions for

judgment n.o.v. and for new trial are filed, these policies are

not thwarted by reviewing remand orders made after entry of

final judgment but before decision on such motions. A rule

such as the International proposes would only encourage

unscrupulous litigants to cause the expenditure of federal

judicial resources and then make their post trial motions after

7

exception to Thermtron would be illogical. The case will

be tried in the state court after remand; therefore, re-

mand has no adverse effect on a plaintiff’s right to a

“full trial’’. Cases in which more than one **full trial’’

takes place are commonplace in our judicial system, i.e.,

such as after a motion for a new trial has been granted.

There is no judicial aversion to a multiplicity of ‘‘full

trials’? when necessary or proper.

The panel’s premise that a “‘full trial’’ in the federal

court creates another exception to the non-reviewability

rule is, accordingly, invalid. In Thermtron Judge Her-

mansdorfer remanded a case to avoid congestion of his

heavy trial docket. As this Court held therein, a remand

for purposes of promoting judicial economy or efficien-

cy, however laudable that objective may be, is not based

on Section 1447(c) grounds and, hence, is reviewable on

appeal. But a remand expressly based on statutory

grounds, such as Judge Alaimo’s herein, is, under Sec-

tion 1447(d), ‘‘not reviewable on appeal or

Otherwise. .. .”’

Even if a ‘‘final-judgment’’ exception to the non-

reviewability rule were to be judicially created, such an

final judgment to raise the nonwaivable jurisdictional questions

forcing remand only if the outcome is unfavorable. Litigants

with valid arguments are not left remediless: questions of

subject matter jurisdiction can be raised at any time, even on

appeal. But after one full trial, and in this case two, a litigant

cannot use the remand apparatus to force expenditure of their

opponents’ and the state courts’ resources beiure review by an

appellate court. Our decision in Live and Let Live, Inc. vy.

Carlsberg Mobile Home Properties, Lt. — ‘73, 592 F.2d 846

(Sth Cir. 1979) is not to the contrary. In that case the district

court expressly made the entry of judgment on the verdict

subject to decision of the unresolved diversity question, which

had been raised before trial. As stated there, finality must be

determined from the circumstances. /d at 848. We find that the

Carter judgment was final.’’ 618 F.2d at 1099-1 100, Appendix

A, p. 10a, lia.

8

exception would not be applicable in these circumstances

because the judgment entered on the jury verdict was not

‘*final’’ at the time Judge Alaimo issued his remand

order. A judgment is not final under the Federal Rules

of Civil Procedure for most purposes, including ap-

pealability, until a motion for judgment notwithstanding

the verdict or for a new trial, if timely filed, is overrul-

ed. Browder v. Department of Corrections of Illinois,

434 U.S. 257, 267 (1978). There, the court said:

**Since the order of October 21 was final order,

the time for appeal commenced to run on that date.

Respondent’s notice of appeal therfore was untimely

by 68 days, unless respondent’s motion of

November 18 tolled the time for appeal under Rule

4(a). The rationale behind the tolling principle of

the Rule is the same as in traditional practice: ‘A

timely petition for rehearing tolls the running of the

[appeal] period because it operates to suspend the

finality of the ... court’s judgment, pending the

court’s further determination whether the judgment

should be modified so as to alter its adjudication of

the rights of the parties’. Department of Banking v.

Pink, 317 U.S. 264, 266, 63 S. Ct. 233, 234, 87 L.

Ed. 254 (1942).’’ (First emphasis the Court’s).

No basis was cited by the panel as support for its in-

ference that Congress, in enacting 28 U.S.C. §1447(c)

and providing that the district court shall remand any

case in which at any time ‘‘before final judgment’’ it ap-

pears (to the district court) that the case ‘‘was removed

improvidently and without jurisdiction’’, did not use the

term ‘‘final judgment’’ in the sense of appellate finality.

\t was pure ipse dixit. The inference that the ‘‘finality’’

referred to was appellate finality would seem well war-

ranted because Congress definitely conferred on district

courts broad authority to remand after trial but prior to

appeal. Cf. United Mine Workers v. Gibbs, 383 U.S.

715 (1966).

9

Congress in enacting 28 USC 1447(c) and (d) placed

a high priority on the right of state courts to try non-

federal claims that should have been litigated there in the

first place. Adjudication of non-removable cases was to

be avoided even at the risk that the federal district court

might be mistaken in its evaluation of federal jurisdic-

tion, or the lack of it. Thus, where a district court later

felt that a case had been improperly remanded, it lacked

jurisdiction to vacate its original order of remand. Three

J Farms, Inc. v. Alton Box Board Co., 609 F. 2d 112

(4th Cir. 1979). See also: Gravitt v. Southwestern Bell

Telephone Co., supra.

Thermtron held that a paramount congressional in-

terest in enacting 28 USC 1447(c) and (d) was that the

trial of a remanded case in the state court not be delayed

“‘by protracted litigation of jurisdictional issues’’. Delay

of the state-court trial for precisely this reason has

already occurred as a result of the granting of the writ

of mandamus herein. The decision of the panel,

moreover, will raise questions and cause confusion as to

the extent of non-reviewability of remand orders

predicated on the statutory ground that ‘‘the case was

removed improvidently and without jurisdiction’. The

error should be corrected by reversal of the decision of

the panel below and affirmation of the non-reviewability

of Judge Alaimo’s order remanding the case to the state

court for lack of subject-matter jurisdiction.

10

CONCLUSION

The Court should grant the petition for writ of cer-

tiorari for the reasons stated and resolve this important

issue of federal procedure.

Respectfully submitted,

DONALD W. FISHER

720 National Bank Bidg.

Toledo, OH 43604

(419) 255-7368

Of Counsel: Attorneys for Petitioner

DONALD W. FISHER Co., Sheet Metal Workers’

Loe At. International Association,

720 National Bank Bldg. A#FL-C/O.

Toledo, OH 43604

JAMES T. LANGFORD

JACOBS AND LANGFORD,

P.A.

Suite 1000, Rhodes-

Haverty Bldg.

134 Peachtree St., N.W.

Atlanta, GA 30303

JaAcK L. COOPER

CooPER, COOPER,

MAIORIELLO &

STELNOKER

P.O. Box 1407

Augusta, Ga 30903

APPENDIX

la

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA

AUGUSTA DIVISION

BEN CARTER,

Plaintiff,

VS.

SHEETMETAL WORKERS INTERNATIONAL ASSOCIATION AND

LocaL 85 SHEETMETAL WoRKERS INTERNATIONAL ASSOCIATION,

Defendant.

Civil Action No. CV 178-113

Filed December 6, 1974

ORDER

Ben Carter, a Georgian, sued the Sheetmetal Workers In-

ternat‘*nal Association (Union) in the Superior Court of

Richmond County, Georgia. A verdict in his favor was revers-

ed by the Supreme Court of Georgia for improper service of

his complaint. Upon remand, he perfected service on the

Union, whereupon the latter removed the case to this Court.

At pre-trial, it clearly developed that the only claim plaintiff

had was a state law claim for the intentional infliction of

emotional distress by ‘‘outrageous conduct.” See Farmer v.

Carpenters, 430 U.S. 290, 51 L.Ed. 2d 338 (1977).

A trial by jury resulted in a verdict for Carter in the

amount of $34,000 actual damages and $110,000 in punitive

damages.

The Union has, inter alia, moved to set aside the verdict

and judgment and remand the case to the State Court because

of lack of diversity of citizenship, and, hence, lack of subject

matter jurisdiction.

With great reluctance, the Court is constrained to agree

with defendant.

2a

It is clear that this Court’s jurisdiction of the subject

matter stems solely from 28 U.S.C. §1332. However, it is

clear, too, that none existed in this case. Plaintiff is of

Georgia citizenship. He is a member of the defendant Union.

The latter has members in all fifty states. The citizenship of

an unincorporated labor union, for purposes of Federal diver-

sity jurisdiction, is that of each of its members. United Steel

Workers of America v. Bouligny, 382 U.S. 145, 15 L.Ed. 2d

217 (1965). Hence, absent diversity, this Court lacks

jurisdiction.

The Court regrets this result because it appears to ‘‘en-

courage litigants to wager on their success on the merits, and

if they lost, permit them to call the contest a nullity.’ Mur-

phy v. Kodz, 351 F.2d 163, 168 (9th Cir. 1965).

At first blush, it would appear that the Union, having

removed the action, should be estopped from raising the ob-

jection, particularly at this late date in the game. However,

‘‘(n)otions of waiver and estoppel cannot confer on a court of

the United States the jurisdiction to decide a claim.’’ Amco

Construction Co. v. Mississippi State Building Commission,

602 F.2d 730, 733 (Sth Cir. 1979). And see Owen Equipment

Erection Co. v. Kroger, 437 U.S. 365, 377, n.21 (1978) citing

Americam Fire and Casualty Co. v. Finn, 341 U.S. 6 (1951).

“‘Congress has established the basic rule that diversity

jurisdiction exists under 28 U.S.C. §1332 only when there is

complete diversity. ‘The policy of the statute calls for its strict

construction.” Healy v. Ratta, 292 U.S. 263, 270.’’ Owen

Equipment & Erection Co. v. Kroger, supra, 437 U.S. at 377.

Having no jurisdiction over the subject matter, this Court

had no power to do anything save remand the action, sua

sponte, to the State Court.

Accordingly, the verdict' and judgment are reluctantly set

aside, and the case is remanded to the Superior Court of

Richmond County, Georgia

' Moreover, it is doubtful, under the record, that the vercict for

punitive damages could be sustained. See Electrical Workers v.

Foust, U.S. , 60 L.Ed. 2d, 698, 707 (1979).

3a

Notwithstanding 28 U.S.C. §1447 (d), this Court hopes

this Order is appealable.? Perhaps another exception may be

carved out of the statute. Compare Thermtron Products, Inc.

v. Hermansdorfer, 423 U.S. 336, 46 L.Ed. 542 (1976).

Accordingly, pursuant to 28 U.S.C. §1292(b), this district

judge is of the opinion that this Order involves a controlling

question of law as to which there is substantial ground for

difference of opinion that an immediate appeal from this

Order may materially advance the ultimate termination of this

litigation.

The Order of remand is stayed pending appeal of this

Order as provided in 28 U.S.C. §1292(b). In the absence of

such appeal, the stay shall be dissolved instanter.

So Ordered, this 6th day of December, 1979.

/S/ ANTHONY A. ALAIMO

Chief Judge

United States District Court

Southern District of Georgia

* Despite my belief as incorporated in this Order, I was tempted

to deny the remand and the other post-judgment motions in order

to ensure a review. Intellectual honesty, however, forbids such an

exercise.

4a

APPENDIX B

in re Ben CARTER, Petitioner.

No. 80-7010

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

May 30, 1980

On Petition for Writ of Mandamus and/or Prohibition to

the United States District Court for the Southern District of

Georgia.

Before AINSWorRTH, Fay and RANDALL, Circuit Judges.

Fay and RANDALL, Circuit Judges:

In ruling on this petition for a writ of mandamus we

must first answer the threshold question whether the bar to

appellate review of a district court order remanding a case to

a state court, which is found in 28 U.S.C. §1447(d),' applies

to a remand order entered upon a ground specified in 28

U.S.C. §1447(c)? but issued after entry of final judgment in

' 28 U.S.C. §1447(d) (1976) provides:

An order remanding a case to the State court from which it

was removed is not reviewable on appeal or otherwise, except that

an order remanding a case to the State court from which it was

removed pursuant to section 1443 of this title shall be reviewable by

appeal or otherwise.

* 28 U.S.C. §1447(c) (1976) provides:

If at any time before final judgment it appears that the case

was removed improvidently and without jurisdiction, the district

court shall remand the case, and may order the payment of just

costs. A certified copy of the order of remand shall be mailed by its

clerk to the clerk of the State court. The State court may thereupon

proceed with such case.

Sa

the federal court. Finding that §1447(d) is no bar to appellate

review in this case, we also review the propriety of the remand

order entered by the district court and, disagreeing with the

district court’s disposition of the case, we grant the writ.

I. Procedural History

Ben Carter, a resident cf Georgia, originally filed this ac-

tion in 1972, in a Georgia state court against the Sheet Metal

Workers’ International Association [the International] and

Local 85 of that labor organization. The complaint charges

the representatives and members of the two organizations with

a conspiracy to deprive Carter of his employment, to deny

him his union membership, and to impair his reputation. The

Local answered the complaint while the International did not,

filing instead a motion to quash service and to dismiss the

complaint because of improper service. That motion was

denied and, because no answer to the complaint had been fil-

ed, a default judgment was entered against the International.

Before trial, Carter dismissed the Local as a defendant, and

therefore the state trial concerned only the issues of the

amount of damages and attorney fees for which the Inter-

naitonal was liable to Carter. The jury found the following

damages and fees: $22,089 actual damages; $30,000 punitive

damages; and $9,300 attorney fees.

This judgment was ultimately reversed by the Georgia

Supreme Court on the ground that the International was not

validly served with process. Sheet Metal Workers’ Inter. Ass’n

v. Carter, 241 Ga. 220, 244 S.E.2d 860 (1978). The action was

reinstituted and proper service on the International made,

whereupon the International removed the case to the federal

court. The basis for removal as described in the Interna-

tional’s Petition for Removal was that the general allegations

of the complaint, particularly the assertions that ‘“‘the defen-

dants conspired together, maliciously and willfully, to deprive

the plaintiff of his employment in the Sheet Metal Industry

.. + [and] to deny plaintiff his right and privilege to be a

member of defendants’ union’’ appeared to allege claims aris-

6a

ing under federal law. The International specifically mention-

ed three provisions of the Labor Management Reporting and

Disclosure Act of 1959, 29 U.S.C. §§401, 402, 411 (1976), and

one provision of the Labor Management Relations Act, 29

U.S.C. §185 (1976). Alternatively, the International argued

that removal was proper because the case came within the

Original jurisdiction of the district court pursuant to 28

U.S.C. §1337 (1976).

The general allegations of the complaint asserted that the

International and the Local had engaged in conduct that

arguably might have formed the foundation of a federal cause

of action. Understandably, however, Carter’s Georgia

pleading cited no federal statute and does not unambiguously

raise a claim under federal law. Carter did not move to have

the case remanded, and the court did not remand on its own

motion. At a pretrial conference, Carter made it clear that he

intended to press only a state-created tort claim. The federal

court did not then remand the action. After trial, the jury

returned a verdict in favor of Carter in the following

amounts: $35,000 actual damages; $110,000 puntive damages;

and $5,280 attorney fees. In accordance with the jury verdict,

the district court entered a final judgment in the case on May

25, 1979.

After entry of final judgment the International, which

had initially sought removal, moved to have the judgment

vacated and the case remanded for lack of subject matter

jurisdiction. Upon examining the question of jurisdiction, the

district court regretfully concluded that it had not had

jurisdiction to hear the case, vacated the judgment, and

remanded the case to the Superior Court of Richmond

County, Georgia. Carter then filed this petition for a Writ of

Mandamus with this court seeking review of the remand

order. Well aware of the prohibition of appellate review of

remand orders contained in 28 U.S.C. §1447(d), and

cognizant also of the limiting construction of that prohibition

found in Thermtron Products, Inc. v. Hermansdorfer, 423

U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976), we requested

7a

additional briefs from the parties addressing the jurisdictional

issues underlying the district court’s action. Having considered

the issues carefully, we now hold that the remand order,

although entered upon a ground specified in §1447(c), is

reviewable notwithstanding §1447(d) because it was entered

outside of the time frame specified in §1447(c); and upon

review of that remand order we determine that remand was

improper. We therefore grant the aplication for a writ of

mandamus.

Il. Reviewability of the Remand Order

[1-3] In holding that all remand orders entered by federal

district courts are not insulated from review by §1447(d), the

Supreme Court in Thermtron emphasized that §1447(d) must

be construed with reference to §1447(c). 423 U.S. at 345. The

court said: ‘‘[O]nly remand orders issued under §1447(c) and

invoking the grounds specified therein — that removal was

improvident and without jurisdiciton — are immune from

review under §1447(d).’’ Jd. at 346, 96 S.Ct. at 590. The re-

mand order in this case was explicitly based on a §1447(c)

ground — lack of jurisdiction over the subject matter of the

litigation. Section 1447(c) does not by its terms apply to all re-

mand orders entered upon such a ground, however, but only

to those entered ‘‘at any time before final judgment.’’ Vaca-

tion of the final judgment of a federal court that was without

jurisdiction to hear the case, and a subsequent remand order,

are not provided for in §1447(c). Nevertheless, because federal

courts are courts of limited jurisdiction, due regard for the

constitutional allocation of powers between the state and

federal systems requires a federal court scrupulously to con-

fine itself to the jurisdiction conferred on it by Congress and

permitted by the Constitution. Although §1447(c) will govern

remand in most cases, in those cases to which that section

does not expressly apply the omission of coverage does not

suffice to vest a federal court with a power it would not

otherwise have. Even after entry of final judgment, the con-

stitutional balance of policies that underlies the Article III

grant of judicial power impels the vacation of that judgment

8a

and remand to the state court having jurisdiction when it is

determined that the federal court was without power to act

because of a lack of subject matter jurisdiction over a remov-

ed case. The action taken by the district court in this case,

after it became aware that it had rendered a judgment when it

was powerless to have done so, was precisely what the

Supreme Court ordered done in American Fire & Casualty

Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702 (1951),

when the Court determined that a federal court in this circuit

had rendered judgment without federal subject matter

jurisdiction of the removed case.’ See also Tennessee v. Union

& Planters’ Bank, 152 U.S. 454, 14 S.Ct. 654, 38 L.Ed. 511

(1894).

Although the remand order in this case was not one ex-

plicitly covered by §1447(c), it nevertheless arguably ought to

be immune from appellate review because it was entered upon

a ground specified in that section. In analyzing the scope of

§1447(d)’s prohibition of review of remand orders, the Court

in Thermtron had occasion to deal only with a remand order

prompted by the district court’s congested docket, a con-

sideration not found in §1447(c). Although the Supreme

Court discussed in broad terms the necessity of construing

subsections (c) and (d) in pari materia, it does not necessarily

follow from the holding in Thermtron that every departure

from the literal prescriptions governing remand in §1447(c) is

> Neither party questions whether under §1447 a district court has

any power to remand after final judgment. Finn does not address

the issue but impliedly holds that the court does have this power.

Because we find this remand order to be improper, we will not rule

on this broader point. We do note, however, that prior versions of

the statute allowed to remand ‘‘at any time.’’ The addition of

“‘before final judgment’’ may reflect a congressional intent to

restrict the district court’s power to enter these orders. If such a

rule is announced we would hope that a district court’s post final

judgment disposition of a removed case for lack of jurisdiction

would be in a manner that aliows the plaintiff to refile without

facing a statute of limitations defense.

9a

sufficient to avoid the proscription of review contained in

§1447(d). Because Congress has so firmly stated a general

policy against appellate review of remand orders, we deem it

advisable to consider the end sought to be achieved by that

policy and the effect on that end of a holding that remand

orders entered after final judgment are reviewable.

The policy underlying § 1447(d) identified by the court in

Thermtron is the preclusion of delay in litigating the merits of

a controversy that would attend appellate litigation of

jurisdictional issues. 423 U.S. at 351, 96 S.Ct. at 593. In

speaking of one of the predecessors of §1447(d)* that repealed

an earlier provision’ permitting review of remand orders in

removeu cases, the Court said:

Congress ... established the policy of not permitting

interruption of the litigation of the merits of a removed

cause by prolonged litigation of questions of jurisdiction

of the district court to which the cause is removed.

United States v. Rice, 327 U.S. 742, 751, 66 S.Ct. 835, 839,

90 L.Ed. 982 (1946).

The considerations of prompt and efficient judicial

resolution of substantive controversies that inform a rule of

nonreviewability of remand orders issued before final judg-

ment in a removed case do not apply with the same force to

remand ordrs issued subsequent to entry of final judgment in

a removed case. Whereas before final judgment the

nonreviewability of remand orders serves to ensure the ex-

peditious resolution of the case in a court of competent

jurisdiction — the court in which the action was Originally fil-

ed — and to minimize the expenditure of scarce federal

judicial resources at the appellate level, once a case has been

fully tried in a federal court and a final judgment entered, the

equation alters markedly. The risk of an erroneous determina-

tion — which, of course, inheres in all human pursuits — is

* Act of March 3, 1887, c. 373, §2, 24 Stat. 553.

* Judiciary Act of 1875, c. 137, §5, 18 Stat. 472.

10a

no greater after final judgment that before, and arguably is

much less, since a district court may be expected punctiliously

to assay claims of no jurisdiction before rendering an order

that effectively reduces the value of its toil to naught.

Deliberately subjecting the state court and the litigants to any

risk of error without recourse to appellate review is a gamble,

however, and the stakes in that gamble on the correctness of

the district court’s jurisdictional determination are much

greater after a case has proceeded to judgment than before.

Federal judicial resources, once expended upon the trial of a

cause, obviously cannot be recouped by relitigation in a state

court. An order of remand after entry of final judgment no

longer fosters prompt resolution of the merits of the caez, but

serves instead only to delay final resolution by subjecting the

litigants to a second, and the state court to a_ possibly

duplicative, trial for the same matter. Extending the prohibi-

tion of review in §1447(d) to a remand order entered outside

the time frame specified in §1447(c) therefore promotes not at

all the congressional policy that is the foundation of §1447(d),

and can only compound unnecessarily the undesirable conse-

quences that ineluctably accompany any rule which makes a

possible judicial error unreviewable.

14,5] Our limitation of §1447(d) to orders entered within the

time frame specified in §1447(c) is as consistent with judicial

precedent as it is with congressional policy. We have already

adverted to the Supreme Court’s declaration, in holding that

§1447(d) applies solely to remand orders entered upon

grounds specified in §1447(c), that ‘‘only remand orders

issued under §1447(c) and invoking the grounds specified

therein... are immune from review under §1447(d).”’

Thermtron, 423 U.S. at 346, 96 S.Ct. at 590 (emphasis add-

ed). Because issued after the entry of finai judgment,* the re-

* In arguing that the order is not reviewable, the International

contends that its timely motions for judgment n. o. v. and new trial

stayed the finality of the judgment. These motions are not included

in the record before us. Neveriheless, we are of the opinion that

considerations ‘‘staying’’ the time for filing an appeal because of

lla

mand order in this case was not, and could not have been,

issued under the authority of §1447(c), and therefore review

of that order, by writ of mandamus,’ is not precluded by

§1447(d). A remand order entered by a district court follow-

ing entry of final judgment in a case is more closely akin to a

remand of a removed case ordered by an appellate court than

it is to a remand by the trial court before a final judgment

has been rendered. Remands ordered by appellate courts

returning removed cases to state courts have never been

presumed to come within the bar of §1447(d) or its

predecessors.*

pending motions are not relevant to when a judgment is ‘‘final’’

under §1447(c). As noted above, the congressional policy was to

allow remand for a full trial. Because a full trial has occurred at the

time motions for judgment n. o. v. and for new trial are filed, these

policies are not thrwarted by reviewing remand orders made after

entry of final judgment but before decision on such motions. A rule

such as the International proposes would only encourage

unscrupulous litigants to cause the expenditure of federal judicial

resources and then make their post trial motions after final

judgment to raise the nonwaivable jurisdictional questions forcing

remand only if the outcome is unfavorable. Litigants with valid

arguments are not left remediless: questions of subject matter

jurisdiction can be raised at any time, even on appeal. But after one

full trial, and in this case two, a litigant cannot use the remand

apparatus to force expenditure of their opponents’ and the state

courts’ resources before review by an appellate court. Our decision

in Live and Let Live, Inc. vy. Carlsberg Mobile Home Properties,

Litd.—’73, 592 F.2d 846 (Sth Cir. 1979) is not to the contrary. In

that case the district court expressly made the entry of judgment on

the verdict subject to decision on the unresolved diversity question,

which had been raised before trial. As stated there, finality must be

determined from the circumstances. /d. at 848. We find that the

Carter judgment was final.

” See Thermtron, 423 U.S. at 352-53, 96 S.Ct. at 593-94,

* See Willingham v. Morgan, 395 U.S. 402, 404, 89 S.Ct. 1813,

1814, 23 L.Ed.2d 396 (1969); Aetna Cas. & Sur. Co. v. Flowers,

330 U.S. 464, 467, 67 S.Ct. 798, 800, 91 L.Ed. 1024 (1947); Gay v.

Ruff, 292 U.S. 25, 30, 54 S.Ct. 608, 610, 78 L.Ed. 1099 (1934).

12a

We therefore hold that an order of remand issued on

whatever grounds by the district court after the entry of final

judgment is reviewable in this court through a petition for a

writ of mandamus. We now address the question whether re-

mand was appropriate in this case.

Ill. Propriety of the Remand Order

16,7] Although our notion of fair play is seriously offended

when a party seeks removal of a case to a federal court, per-

mits it to be tried and to proceed to judgment, and seeks a re-

mand order only when the judgment turns out to be an un-

favorable one, if the asserted ground for remand is the federal

court’s lack of subject matter jurisdiction, the concepts of

equity, waiver, and estoppel are inapplicable. The subject

matter jurisdiction of federal courts is limited by the Constitu-

tion and the Congress, and cannot be expanded by judicial in-

terpretation or by the acts or consent of the parties to a case.

American Fire & Casualty Co. v. Finn, 341 U.S. 6, 17-18, 71

S.Ct. 534, 541-542, 95 L.Ed. 702 (1951); Amco Construction

Co. v. Mississippi State Building Comm’n, 602 F.2d 730, 733

(Sth Cir. 1979).

{8] The district court noted in its remand order that the re-

quirements for diversity jurisdiction were lacking because

Carter was a citizen of Georgia and the union, having

members of Georgia citizenship, was deemed to be a citizen of

that state under United Steelworkers of America v. R.H.

Bouligny, Inc., 382 U.S. 145, 146-47, 86 S.Ct. 272, 273, 15

L.Ed.2d 217 (1967). Federal question jurisdiction therefore

provides the only basis for removal of this case. The basic

federal question statute is 28 U.S.C. §1441(b), which

provides:

Any civil action of which the district courts have original

jurisdiction founded on a claim or right arising under the

Constitution, treaties or laws of the United States shall be

removable without regard to the citizenship or residence

of the parties.

l3a

For a case to “arise under’’ one of the stated sources of

federal law, a right or immunity created by one of those

sources “‘must be an element, and an essential one, of the

plaintiff's cause of action... . [That] right or immunity must

be such that it will be supported if the Constitution or laws-of

the United States are given one construction or effect, and

defeated if they receive another.’’ Gully v. First Nat’! Bank in

Meridian, 299 U.S. 109, 112, 57 S.Ct. 96, 97, 81 L.Ed. 70

(1936) (citations omitted). The federal controversy ‘‘must be

disclosed upon the face of the complaint, unaided by the

answer or by the petition for removal.’’ /d. at 113, 57 S.Ct.

at 98; see also Louisville & Nashville R. Co. v. Mottley, 211

U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908); Tennessee v.

Union & Planters’ Bank, 152 U.S. 454, 14 S.Ct. 654, 38

L.Ed.2d 511 (1894). On the other hand, the accepted rule in

this circuit is that upon removal the removal court should in-

spect the complaint carefully to determine whether a federal

claim is necessarily presented, even if the plaintiff has couch-

ed his pleading exclusively in terms of state law. See Romick

v. Bekin Van & Storage Co., 197 F.2d 369 (Sth Cir. 1952).

The reviewing court looks to the substance of the complaint,

not the labels used in it. See Smith v. Local 25, Sheet Metal

Workers Int’! Ass’n, 500 F.2d 741, 748-49 n.5 (Sth Cir. 1974).

{9,10} In his order remanding the case, the district court

stated. ‘At pretrial, it clearly developed that the only claim

plaintiff had was a state law claim for the intentional inflic-

tion of emotional distress by ‘outrageous conduct.’ See

Farmer v. Carpenters, 430 U.S. 290, [97 S.Ct. 1056], 51

L.Ed.2d 338 (1977).”’ (emphasis in the Original). The court

then concluded that because diversity of citizenship was ab-

sent, the court had no jurisdiction over this state law claim.

The trial court erred by viewing the pleading in the wrong

time frame. It is a fundamental principle of law that whether

subject matter jurisdiction exists is a question answered by

looking to the complaint as it existed at the time the petition

for removal was filed. Pullman Co. v. Jenkins, 305 U.S. 534,

537-38, 59 S.Ct. 347, 348-49, 83 L.Ed. 334 (1939);

l4a

Westmoreland Hospital Ass’n v. Blue Cross, 605 F.2d 119,

123 (3d Cir. 1979). When a subsequent narrowing of the

issues excludes all federal claims, whether a pendant state

claim should be remanded to state court is a question of

judicial discretion, not of subject matter jurisdiction. Rosado

v. Wyman, 397 U.S. 397, 403-05, 90 S.Ct. 1207, 1213-15, 25

L.Ed.2d 442 (1970); United Mine Workers v. Gibbs, 383 U.S.

715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Hudak vy.

Economic Research Analysts, Inc., 499 F.2d 996, 1001 (Sth

Cir. 1974), cert. denied, 419 U.S. 1122, 95 S.Ct. 805, 42

L.Ed.2d 821 (1975); Webb v. Bladen, 480 F.2d 306, 309 (4th

Cir. 1973). Indeed, it has often been stated that the plaintiff

cannot rob the district court of subject matter jurisdiction by

electing to amend away the grounds for federal jurisdiction.

E.g., St. Paul Mercury Indemnity Co. v. Red Cab Co., 303

U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938). We therefore

review first, whether a substantial federal question exists, and,

if so, second, whether judicial discretion requires this remand

in any event.

A. Federal Question Jurisdiction

The relevant portions of Carter’s complaint follows:

2.

Beginning in January of 1972, the defendants [Sheet

Metal Workers International Association and Local 85 of

Sheet Metal Workers’ International Association] con-

spired together, maliciously and wilfully, to deprive the

plaintiff of his employment in the Sheet Metal Industry

and of his means of livelihood, to cause the plaintiff to

be denied employment in this Industry, to deny the plain-

tiff his right and privilege to be a member of defendants’

union, to impair the plaintiff’s reputation among pro-

spective employers, and to subject the plaintiff to embar-

rassment, scorn and derision among his friends,

associates, relatives and fellow employees.

Sialic

4 15a

3.

In January of 1972, pursuant to, and in furtherance

of, said conspiracy defendants’ agents, officers and

members, acting for and under the specific instructions of

all defendants herein, maliciously, and without probable

cause therefor, used the threat of union coercion and

pressure to cause the plaintiff to be denied employment

of a job in his industry for which he was ready, willing

and able to perform.

4.

In March of 1972, pursuant to this same scheme and

conspiracy these individuals coerced and forced an

employer of the plaintiff to dismiss the plaintiff from a

job in his industry which he then presently held.

Carter’s complaint clearly alleges tortious conduct under

Georgia law, as was established in another appeal during this

protracted litigation. Sheet Metal Workers Int’l Ass’n v.

Carter, 133 Ga. App. 872, 212 S.E.2d 645 (1975), cert.

denied, 423 U.S. 1078, 96 S.Ct. 866, 47 L.Ed.2d 89 (1976).

The question is whether it also alleges actions within the

jurisdiction of the federal courts.

The International’s removal petition, filed June 14, 1978,

discloses its initial position that the allegations of Carter’s

complaint sufficiently pleaded u federal claim, as to which

removal would be proper. Specifically, the International

asserted that Carter’s allegations that he had been denied

employment in the sheet metal industry through some conduct

by the International, and that he had been denied a right to

be a member of that union were claims arising under the

Labor Management Reporting and Disclosure Act, 29 U.S.C.

§§401, 402, and 411 and under the Labor Managbement Rela-

tions Act, 29 U.S.C. §§158, 159 or 29 U.S.C. §185.

1. LMRDA.—The Labor Management Reporting and

Disclosure Act of 1959 (LMRDA), also known as the

LL

l6a

Landrum-Griffith Act, ‘‘contains a congressional finding that

there have been breaches of trust and failures in the obser-

vance of high standards of responsibility in the labor and

management fields. The Act was passed for the purposes

declared including the elimination of improper practices.’’

Clinton v. Hueston, 308 F.2d 908, 910 (5th Cir. 1962). The

“bill of rights’? of the LMRDA is found at 29 U.S.C. §411

(1976). Presumably the International intended to rely on some

provision in that section when, in its Petition for Removal, it

said: ‘‘[T]he allegation of denial of membership falls squarely

within the LMRDA, 29 U.S.C. §401, §402, §411.’’ These sec-

tions guarantee members equal rights to nominate candidates,

to vote, to attend meetings, to meet with other members, to

express views, and to institute court actions. The sections also

regulate the union’s ability to increase dues, and to fine, sus-

pend, expel, or ‘‘otherwise discipline’? members.

[11,12] Whether Carter’s allegations stated a claim under the

LMRDA was a question without a clear answer at the time

the petition for removal was filed. The LMRDA accords

rights to every ‘‘member.’’ That term is broader in scope than

one might originally think in that Congress defined the term

to include ‘‘any person who has fulfilled the requirements for

membership in such organization.’’ 29 U.S.C. §402(0) (1976).

In Hughes v. Local 11 of Int’l Ass’n of Bridge, Structural and

Ornamental Ironworkers, 287 F.2d 810 (3d Cir.), cert. denied,

368 U.S. 829, 82 S.Ct. 51, 7 L.Ed.2d 32, the Third Circuit

held that a dismissal for lack of subject matter jurisdiction

was improper once the plaintiff had alleged a substantial

claim under the LMRDA. Whether the plaintiff actually was a

‘‘member’’ was a question of whether the complaint asserted

a claim upon which relief could be granted, not a question of

jurisdiction. /d. at 813-14. Several cases expressly or impliedly

followed this lead. Gavin v. Structural Iron Workers Local

No. 1, 553 F.2d 28 (7th Cir. 1977); Parish vy. Legion, 450

F.2d 821 (9th Cir. 1971); Sheridan v. United Bhd. of

Carpenters, 306 F.2d 152, 156 (3d Cir. 1962); Addison v.

Grand Lodge of Int’l Ass’n of Machinists, 300 F.2d 863, 868

17a

(9th Cir. 1962); Vincent v. Plumbers & Steamfitters Local No.

198, 384 F.Supp. 1379 (M.D. La.1974); Axelrod v. Stoltz, 264

F.Supp. 536 (E.D. Pa. 1967), aff'd, 391 F.2d 549 (3d Cir.

1968); Cornelio v. Metropolitan District Council of

Philadelphia, 243 F.Supp. 126 (E.D.Pa. 1965), aff'd, 358

F.2d 728 (3d Cir. 1966), cert. denied, 386 U.S. 975, 87 S.Ct.

1167, 18 L.Ed.2d 134 (1967); Ferger v. Local 483 of Int'l

Ass’n of Bridge, Structural & Ornamental Iron Workers, 238

F.Supp. 1016 (D.N.J.1964), aff'd, 342 F.2d 430 (3d Cir.

1965). See also Moynahan v. Pari-Mutuel Employees Guild of

California, 317 F.2d 209, 211, n.3 (9th Cir.), cert. denied, 375

U.S. 911, 84 S.Ct. 207, 11 L.Ed.2d 150 (1963). This distinc-

tion is clearly correct. The district court has jurisdiction if a

complaint states a substantial federal claim, and the court can

then assess the legal sufficiency of the complaint. Levering &

Garrigues Co. v. Morrin, 289 U.S. 103, 105, 53 S.Ct. 549,

550, 77 L.Ed. 1062 (1933). A complaint’s allegations are in-

substantial if they are obviously without merit or if prior deci-

sions foreclose controversy on the subject. /d. at 105, 53 S.Ct.

at 550. See also Romero v. International Terminal Operating

Co., 358 U.S. 354, 359, 79 S.Ct. 468, 473, 3 L.Ed.2d 368

(1959); Montana-Dakota Utilities Co. v. North-Western

Public Service Co., 341 U.S. 246, 249, 71 S.Ct. 692, 694, 95

L.Ed. 612 (1951); Bell v. Hood, 327 U:S. 678, 66 S.Ct. 773,

776, 90 L.Ed. 939 (1946).

As indicated above, the claim under the LMRDA was not

obviously meritless. Some courts had indicated, however, that

the LMRDA does not countenance a claim for wrongful

denial of membership. Abrams v. Carrier Corp., 434 F.2d

1234, 1254 (2d Cir. 1970), cert. denied, 401 U.S. 1009, 91

S.Ct. 1253, 28 L.Ed. 2d 545 (1971). See also Gavin v. Struc-

tural Iron Workers Local No. 1, 553 F.2d 28 (7th Cir. 1977);

Moynaham vy. Pari-Mutuel Employees Guild of California,

317 F.2d at 210; MacKenzie v. Local 624, Int’l Union of

Operating Engineers, 472 F.Supp. 1025 (N.D.Miss.1979); Vin-

cent v. Plumbers & Steamfitters Local No. 198, 409 F.Supp.

206 (M.D.La.1976). The cases distinguished situations such as

18a

in Hughes, in which plaintiffs who were members of the na-

tional and one local attempted to transfer to another. See

Parish v. Legion, 450 F.2d at 824. In Hughes the transferee

local had not reserved the right to refuse membership. See

also Gavin v. Structural Iron Workers, 553 F.2d at 30-31. If

the local reserved that right, or required a vote for admit-

tance, the plaintiff had not ‘‘fulfilled the requirements for

membership,’’ and was not a ‘‘member’’ eligible to sue under

the LMRDA. See Moynahan vy. Pari-Mutuel Employees, 317

F.2d at 210.

{13] Construing the complaint liberally, the allegations are

sufficient to state a substantial federal claim under the

LMRDA. The viability of an action for denial of membership

was not such a settled question that the district court was

deprived of subject matter jurisdiction, especially since the

Supreme Court and this circuit have never ruled on the issue.

Furthermore, the allegations in the complaint do not foreclose

the possibility that Carter was attempting to transfer local

membership or that the local had not reserved power to refuse

membership.’ In addition, the claim that the unions attempted

to deny him employment in the industry arguably could be an

allegation of improper disciplinary action. See Keene v. Inter-

national Union of Operating Engineers, 569 F.2d 1375,

1379-81 (Sth Cir. 1978) (blacklisting may be ‘‘other discipline’

under 29 U.S.C. §411(a)(5)). The district court had jurisdic-

tion over the LMRDA claim. Whether relief could have been

granted is a separate question which we need not, and

therefore will not, decide at this time.

{14] 2. LMRA Section 301.—The federal district courts have

jurisdiction over suits for violations of contracts between an

* Carter states in his Reply Memorandum that he actually was

attempting to transfer membership from one local to another. This

fact, however, is not clearly alleged in the complaint. Bur cf.

Villarreal v. Brown Express, Inc. §29 F.2d 1219 (Sth Cir. 1976) (in

practice the courts consider the facts disclosed on the record as a

whole).

19a

employer and a labor organization under section 301(a) of the

Labor Management Relations Act (LMRA), 29 U.S.C.

§185(a)(1976). An employee can bring suit under section 301

against his union for breach of the collective contract when

the breach is related to breach of the union’s duty of fair

representation. Humphrey v. Moore, 375 U.S. 335, 84 S.Ct.

363, 11 L.Ed.2d 370 (1964). See Amalgamated Ass’n of

Street, Electric Railway & Motor Coach Employees of

America v. Lockridge, 403 U.S. 274, 299, 91 S.Ct. 1909,

1924, 29 L.Ed.2d 473 (1971); Vaca v. Sipes, 386 U.S. 171, 87

S.Ct. 903, 17 L.Ed.2d 842 (1967).

[15,16] In its Petition for Removal, the International

asserted: ‘‘One of the duties arising under section 301 is the

Union’s duty to fairly represent all employees coming under

the protection of a collective bargaining agreement.”’

Although the union does have this duty, a breach of the duty

of fair representation is not always also a breach of the collec-

tive contract. See Smith v. Local 25, Sheet Metal Workers

Int'l Ass’n, 500 F.2d 741, 745-46 (Sth Cir. 1974). The duty of

fair representation is an independent Statutory duty that arises

from the union’s position as exclusive bargaining agent under

sections 8 and 9 of the labor laws. Ford Motor Co. v. Huff-

man, 345 U.S. 330, 337, 73 S.Ct. 681, 685, 97 L.Ed. 1048

(1953). When the allegations assert a breach of the duty of

fair representation without a corresponding breach of the col-

lective contract, federal jurisdiction cannot be grounded on

section 301.

Carter’s complaint nowhere mentions the collective

bargaining agreement. While mindful that the courts should

construe duty of fair representation complaints to guard

against their dismissal, Czosek v. O’Mara, 397 U.S. 25, 27, 90

S.Ct. 770, 772, 25 L.Ed.2d 21 (1970), in the absence of any

mention of the collective bargaining contract we find it

necessary to hold that there is no jurisdiction under section

301. Cf. Smith v. Local 25, Sheet Metal Workers Int 1 Ass'n,

500 F.2d at 744, 745-46 (plaintiffs had not alleged violation of

collective agreement; no section 301 suit based solely on duty

of fair representation).

20a

{17-19} 3. Sections 8 & 9.—A union has a duty to represent

fairly all the employees in a bargaining unit because of the

rights granted the union under sections 8(b) and 9(a) of the

federal labor laws, 29 U.S.C. §§158(b), 159(a) (1976). Vaca v.

Sipes, 386 U.S. at 177, 87 S.Ct. at 909; Smith v. Local 25,

Sheet Metal Workers Int’l Ass’n, 500 F.2d at 746. These sec-

tions are part of an ‘‘Act of Congress regulating commerce”’

over which the district courts have original jurisdiction under

28 U.S.C. §1337 (1976).'° See Amalgamated Ass’n of Street,

Electric Railway & Motor Coach Employees v. Lockridge, 403

U.S. at 274, 91 S.Ct. at 1909; Smith v. Local 25, Sheet Metal

Workers Int’l Ass’n, 500 F.2d at 748-49. Unlike plaintiffs

under section 301, Carter need not be a member of the union

to assert a duty of fair representation claim; the union’s duty

extends to all those in the unit. A union breaches its duty if

its conduct reflects hostile discrimination based on irrelevant

and invidious considerations. Steele v. Louisville & Nashville

R.R., 323 U.S. 192, 203, 65 S.Ct. 226, 232, 89 L.Ed. 173

(1944). ‘‘A breach of the statutory duty of fair representation

occurs Only when a union’s conduct toward a member of the

collective bargaining unit is arbitrary, discriminatory, or in

bad faith.’’ Vaca v. Sipes, 386 U.S. at 190, 87 S.Ct. at 916

(1967).

{20] Carter’s complaint clearly meets these standards. He

alleges the unions discriminated against him without cause by

maliciously conspiring to deprive him of employment in

January of 1972, and by forcing an employer to dismiss him

in March of 1972. The district court had federal question

jurisdiction over the breach of the duty of fair representation

claim.

'° 28 U.S.C. §1337 (1976) provides:

The district courts shall have original jurisdiction of any civil

action or proceeding arising under any Act of Congress regulating

commerce or protecting trade and commerce against restraints and

monopolies.

2la

B. Pendent Jurisdiction

[21,22] Because the district court had jurisdiction over at

least two federal questions in this suit, it also had the jurisdic-

tional power to decide Carter’s state law claims which arose

from the same nucleus of operative fact. United Mine

Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16

L.Ed.2d 218 (1966). Pendent jurisdiction is a doctrine of

discretion: ‘‘Its justification lies in considerations of judicial

economy, convenience and fairness to litigants... .’’ Jd. at

726, 86 S.Ct. at 1139. Some of the factors to be considered

are whether the federal claims were dismissed before trial,

whether the state claims predominant, whether the state

claims are closely tied to questions of federal policy, and

whether the jury is likely to be confused by the treatment of

divergent legal theories of relief. Jd. at 726-27, 86 S.Ct. at

1139-40. Any specification that Gibbs required dismissal when

all federal claims were eliminated before trial was soundly

quieted in Rosado v. Wyman:

We are not willing to defeat the commonsense policy of

pendent jurisdiction—the conservation of judicial energy

and the avoidance of multiplicity of litigation—by a con-

ceptual approach that would require jurisdiction over the

primary claim at all stages as a prerequisite to resolution

of the pendent claim. The Court has shunned this view.

397 U.S. 397, 405, 90 S.Ct. 1207, 1214, 25 L.Ed.2d 442

(1970) (footnotes and citations omitted).

[23] A review of the factors influencing discretion reveals

that while the district court could have dismissed the state

claim, it would not have been a clear abuse of discretion to

refuse to do so after the final judgment. Certainly judicial

economy would weigh against a third trial. Fairness to Carter,

upon whom the International imposed federal jurisdiction,

also militates for retention of pendent jurisdiction over the

claim. Although the Court noted in Gibbs that it might even

be appropriate to dismiss a pendent state claim after full trial,

this case is not one in which the plaintiff was asking the

22a

federal court to tolerate a purely state claim. 383 U.S. at 727,

86 S.Ct. at 1139. The district court could have properly decid-

ed to retain pendent jurisdiction over the state law case. See

Hudak v. Economic Research Analysts Inc., 499 F.2d 996,

1001 (Sth Cir. 1974). Because the district court reluctantly

concluded it had no jurisdiction, however, it never reached

this question. We therefore return the case to the district

court for consideration of whether, under all the surrounding

circumstances, it should accept the state law claim under a

discretionary exercise of pendent jurisdiction thus avoiding

further duplicitous judicial efforts.

The writ is GRANTED. The case is returned to the

district court with directions to VACATE the remand order,

thereby allowing consideration of the pendent jurisdiction

questions.

23a

APPENDIX C

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 80-70)0

IN RE: BEN CARTER, Petitioner.

Appeal from the United States District Court

for the Southern District of Georgia

CN PETITION FOR REHEARING AND PETITION FOR

REHEARING EN BANC

(August 13, 1980)

Before AINSworTH, Fay and RANDALL, Circuit Judges.

PER CURIAM:

The Petition for Rehearing is DenrED and the Court

having been polled at the request of one of the members of

the Court and a majority of the Circuit Judges who are in

regular active service not having voted in favor of it, (Rule 35

Federal Rules of Appellate Procedure; Local Fifth Circuit

Rule 16) the Petition for Rehearing En Banc is also DENIED.

24a

APPENDIX D

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF GEORGIA

AUGUSTA DIVISION

BEN CarTER, Plaintiff,

Vv.

SHEET METAL WORKERS INTERNATIONAL ASSOCIATION,

Defendant.

Civil Action No. CV-178-113

MOTION FOR JUDGMENT NOTWITHSTANDING THE

VERDICT OR IN THE ALTERNATIVE FOR A TRIAL

Defendant moves the court to set aside the verdict

entered in the above entitled action on Tuesday, May 22,

1979, and the judgment entered thereon on Friday, May 25,

1979, and to enter judgment in favor of the Defendant in ac-

cordance with the motion for directed verdict made by the

Defendant at the close of all the testimony herein, on the

grounds, as stated in that motion that there was not sufficient

evidence to permit the jury to draw an inference that the

Defendant engaged in conduct so discriminatory or

outrageous that no reasonable man in a civilized society

should be expected to endure it by forming or jointing a con-

spiracy to cause the Plaintiff to suffer grievous emotional

distress by way of embarrassment, scorn, and derision among

his friends, associates, family, and fellow employees or to

cause the Plaintiff any other injury, and on the following ad-

ditional grounds: (1) the tort claim herein is preempted pur-

suant to the provisions of the National Labor Relations Act,

as amended, 29 U.S.C. Sec 151 et seq. (2) the suit is barred

by the applicable state statute of limitations, Ga. Code Ann.

§3-1004, and (3) the court lacks jurisdiction over the subject

matter of this non-federal claim because there is not complete

diversity of citizenship between the Plaintiff and the Defen-

dant [Steelworkers v. Bouligny, 382 US 145 (1975)].

25a

In the alternative, Defendant moves the court to set aside

the verdict and grant defendant a new trial on the following

grounds:

1. The verdict is contrary to law.

2. The verdict is contrary to the weight of the evidence.

3. The verdict is contrary to the evidence.

4

The verdict of the jury as to general damages is

grossly excessive and unreasonable under the

evidence.

5. The verdict as to general damages for subjecting

Plaintiff to embarrassment, scorn and derision

among his friends, associates, family and relatives

and fellow employees in the sum of Thirty-Five

Thousand Dollars ($35,000.00) is punitive in

character and contrary to the court’s rulings.

6. There was no evidence of impairment of Plaintiff’s

reputation among prospective employers by publica-

tion of false and defamatory statements with

knowledge or reckless disregard of their falsity upon

which the jury could predicate an award of actual or

punitive damages.

7. The verdict as to punitive or exemplary damages in

the sum of One Hundred Ten Thousand Doilars

($110,000.00) is so grossly excessive under the

evidence as to evidence passion and prejudice against

this labor union Defendant on the part of the jury.

8. This Honorable Court erred in its charge to the jury

in the following respects:

(a) In instructing the jury as to Georgia Code Sec-

tion 54-801 entitled ‘“‘Use of force or threats to

prevent another from quitting or continuing

employment’’ because the law requires that

jurors not consider the fact of interference with

employment opportunities on account of

membership or non-membership in a _ labor

Organization in the tort action litigated herein.

(b)

(c)

(d)

(e)

26a

In instructing the jury as to Georgia Code Sec-

tion 54-905 entitled ‘‘Unlawfulness of contracts

reqv'‘ring membership, in, or payments to, labor

Orgauizations as a condition of employment”’

because the law requires that jurors not consider

the fact of interference with employment or

employment opportunities on account of

membership or nonmembership in a_ labor

organization in the tort action litigated herein.

In instructing the jury as to Georgia Code Sec-

tion 54-904 entitled ‘‘Contracts requiring

membership in, or payments to labor organiza-

tions as contrary to public policy’’ because the

law requires that jurors not consider the fact of

interference with employment opportunities on

account of membership or non-membership in a

labor organization as a condition of employment

in the tort action litigated herein.

In instructing the jury as to Georgia Code Sec-

tion 54-801, 54-905, and 54-904 because the

cumulative effect of those three instructions of

provisions of the Georgia Right to Work Law

necessarily induced the jury to consider the

possible effect of interferences in connection

with reaching a verdict as to compensatory and

also as to punitive damages.

In instructing the jury that it could consider

discrimination by this Defendant with respect to

Plaintiff’s employment or employment oppor-

tunities if it found that the manner in which

such discrimination was attempted was so

discriminatory or outrageous that no reasonable

man in a civilized society should be expected to

endure it because such instruction is contrary to

the evidence and the weight of the evidence and

for the additicnal reason that such instruction is

confusing and contradictory to the jury especial-

27a

ly when considered in relation to the instructions

given with respect to provisions of the Georgia

Right to Work Law.

The verdict is contrary to law and the weight of the

material and competent evidence, some of the

reasons therefor being set forth as follows:

(a)

(b)

(c)

The weight of the evidence established that there

was no agreement, understanding, or concert of

action between Defendant or any of its represen-

tatives and any other person or labor organiza-

tion to deny or delay the reinstatement of Plain-

tiff to membership in Local Union No. 13. The

only evidence on that issue is to the effect that

the controversy over Plaintiff’s reinstatement

was viewed or considered by the Defendant as a

matter to be resolved by and between Plaintiff

and Local Union 13 in the exercise of its local

autonomy.

The weight of the evidence established, at most,

that Plaintiff, a former union member on a

withdrawal card, was denied reinstatement to

union membership by Local Union 13 because

Local Union 13 claimed that he owed the sum

of Two Thousand Five Hundred Eighty Dollars

($2,580.00) in delinquent trust fund payments on

behalf of certain fellow members of Local

Union 13, that he requested that the Defendant

intercede on his behalf in his dispute with Local

Union 13, and that the Defendant refused to

render the assistance he requested.

The weight of the evidence established that the

Defendant made no effort to conspire, com-

municate, or otherwise deal with any local

union, employer, or person or knowingly to join

with Local Union 13 or any other person or

Organization for the express or implied purpose

(d)

(e)

28a

of inflicting on Plaintiff emotional distress ey

mental suffering by way of embarrassment,

scorn, or derision among Plaintiff’s friends,

associates, and fellow employees. To the con-

trary, the weight of the evidence shows only that

the Defendant refused or failed to intercede in

Plaintiff’s behalf, upon Plaintiff’s request, in

his dispute with Local Union 13 over his

reinstatement to membership in the latter

organization.

The weight of the evidence does not establish

any malice or bad faith on the part of the

Defendant in its dealings with the Plaintiff or

any intention on the part of Defendant or any

of its agents to deny the benefits of union

membership to Plaintiff for reasons of spite,

hatred, ill will, dislike, animosity, or other like

reason nor does the weight of the evidence

establish any knowledge on the part of Defen-

dant or any of its agents that Local Union 13

refused to reinstate Plaintiff to union member-

ship for or because of any reason other than

Plaintiff’s refusal to pay his alleged debt in the

amount of Two Thousand Five Hundred Eighty

Dollars ($2,580.00) to Local Union 13

employees. The evidence of this issue shows at

most a careless or inadequate investigation by

_ this Defendant as to the validity of this debt and

whether it was still outstanding.

The weight of the evidence does not establish

that Plaintiff suffered any actual mental

anguish, tangible or intangible, or any similar

type of ascertainable general or special damages

as a consequence of any conduct on the part of

the Defendant for which it is liable and,

especially in a labor law context, an award of

more than nominal damages for emotional

(f)

(g)

(h)

29a

distress must be based on findings of actual in-

jury. Sota Segarra v. Sea-Land Service, Inc.,

581 F 2d 291, 298-299 (ist Cir. 1978),

The weight of the evidence does not establish

that the Defendant’s refusal or failure to in-

tercede in his behalf in his dispute with Local

Union 13 was wilful and malicious rather than

merely arbitrary, i.e. unjustifiable, action. Mere

failure or refusal by a labor organization to act

or refusal by a labor organization to act on

behalf of a member or employee does not

amount to conduct of so aggrevated a nature

that mental distress and punitive damages may

be awarded. Soto Segarra, supra at 298.

The true weight of the evidence clearly

demonstrated that the reasons for the failure or

refusal of the Defendant to intercede in the

Plaintiff’s behalf in his dispute with Local

Union 13 over his reinstatement to membership

in Local Union 13 were that the Defendant

assumed, on the basis of representations made

by Local Union 13, that Plaintiff was indebted

to certain trust funds on behalf of several Local

Union 13 employees at the time Plaintiff's ap-

plication for reinstatement was pending, that the

issue Of the existence, discharge, or compromise

of such indebtedness was felt by the Defendant

to be a local matter concerning the Plaintiff and

the Local Union 13, and, in view of the above

factors, that it elected to advise the Plaintiff to

resolve this matter with Local Union 13, without

making an extensive investigation into the posi-

tions of the contesting parties as to the existence

and amount of said indebtedness.

It is contrary to reasonable inference and,

therefore, the fair weight of the evidence that

the Defendant initiated, or knowlingly or inten-

30a

tionally joined, a conspiracy to inflict mental

suffering or mental anguish upon Plaintiff or to

subject him to embarrassment, scorn, or deri-

sion among his friends, associates, relatives and

follow employees by denying him reinstatement

to membership in Local Union 13.

10. The closing argument by the Plaintiff’s counsel en-

titled the Defendant to a new trial for the following

reasons:

(a)

(b)

(c)

(d)

Counsel for Plaintiff improperly argued to the

jury matters pertaining to employment or job

discrimination on account of non-membership in

a labor union, principally Local Union 85, af-

filiated with the Defendant, and that the Defen-

dant was, therefore, liable to the Plaintiff for

the consequences of such alleged interferences

with the job oppoutunities.

Counsel for Plaintiff improperly argued to the

jury that the Defendant knew that the Plaintiff

would be unable to obtain employment with

union employers in right-to-work states such as

Georgia and other states and was, therefore,

liable for the consequences of all such violations

of laws.

Counsel for Plaintiff improperly argued to the

jury that the Defendant has the burden at trial

of proving that the Plaintiff in fact was indebted

to several trust funds in the sum of Two Thou-

sand Five Hundred Eighty Dollars ($2,580.00)

on behalf of several members of Local Union 13

when, to the contrary, the burden of proof of

said issues, as all issues, was upon the Plaintiff.

Counsel for Plaintiff in making such improper

arguments in the latter half of his presentation,

at a time that the Defendant had no opportunity

to respond thereto, violated the injunction of

3la

the United States Supreme Court in tort cases of

this nature to the effect that ‘‘the state tort be

either unrelated to employment discrimination

or a function of the particularly abusive manner

in which the discrimination is accomplished or

threatened rather than a function of the actual

or threatened discrimination itself. ‘‘Farmer v.

Carpenters 430 U.S. 290, 305.

(ec) Counsel improperly argued to the jury that any

sum awarded to the Plaintiff by the jury as

punitive damages would be subject to federal in-

come taxes and that, accordingly, a larger sum

than might be warranted should be awarded to

offset this tax liability. The court attempted to

correct this argument but not until after the

point had been emphasized by counsel.

(f) All of the foregoing statements made by Plain-

liff’s counsel were so prejudicial to the Defen-

dant and unwarranted that no attempt by the

court at the time to correct said statements

could have prevented the erroneous beliefs that

would have been implanted in the minds of the

jurors by said improper statements, or any of

them.

The court is obligated to set aside the verdict and

direct a new trial herein or to require a remittor on

the ground that it has a particular duty, in cases

against labor organizations for actual and punitive

damages for alleged outrageous torts committed to

assure that the damages awarded are not excessive.

The verdict of the jury herein is excessive in the light

of the evidence herein where there was no proof that

the Plaintiff suffered aggrevated mental and emo-

tional damage or that any physical damage resulted

from such alleged mental or emotional damage and

no proof of punitive elements such as fraud, malice,

ill will, or hostility on the part of the Defendant

12.

32a

towards the Plaintiff. The court is under an affir-

mative duty ‘‘if the amount of damages awarded is

excessive,. . .to require a remittor or a new trial.’’

Linn v. United Plant Guard Workers, 383 U.S. 53,

65-66 (1966).

The verdict of the jury awarding punitive damages is

inconsistent with the rationale of the very recent

holding of the United States Supreme Court in /nter-

national Brotherhood of Electrical Workers v. Foust

-US-No. 78-38, (May 29, 1979). In that case, which

deait with the propriety of awarding punitive

damages against a labor union for breach of the duty

of fair representation, the court (in a unanimous opi-

nion) disallowed punitive damages ‘‘(b)ecause general

labor policy disfavors punishment and the adverse

consequences of punitive damage awards could be

substantial. . .’’ (Emphasis ours.)

Justice Blackmun, in a concurring opinion, with

which three Justices joined, stated that if punitive

damages are ever to be awarded against labor unions

they should be restricted ‘‘to their proper sphere,

namely, to those rare cases where the union’s con-

duct can truly be described as outrageous’’. At a

later point in the concurring opinion, he said:

“‘The union’s conduct, in other words, was

negligent or, at worst, grossly negligent. No

court, to my knowledge, has ever held that

negligence can form the basis for a _ proper

punitive damages award. Especially should this

be so in cases arising under the federal labor

Statutes.”’

There was no proof of any ‘‘actual injury’’ suffered

by the Plaintiff, except as to loss of work oppor-

tunities at a higher wage rate, for which there could

be no recovery of either actual or punitive damages,

nor could be conduct of the Defendant herein be

33a

characterized as ‘‘truly outrageous’. The conduct of

the Defendant herein was, perhaps, ‘“‘negligent or, at

worst, grossly negligent’. Therefore, the award of

punitive damages herein is contrary to federal labor

policy and improper.

Defendant reserves the right to supplement or amplify the

foregoing reasons for a new trial following receipt of a

transcript of the record.

Of Counsel:

Cooper, Cooper,

MAJORIELLO & STALNAKER

561 Greene Street

Augusta, Georgia 30903 /s/ JACK COOPER

Jacoss, JAcoss & Davis

Suite 707, Healey Bldg.

Atlanta, Georgia 30303 /8/ JAMES T. LANGFORD

MULHOLLAND, HICKEY,

LYMAN, McCormick,

FISHER & HICKEY

741 National Bank

Building

Toledo, Ohio 43604 /s/ DONALD W. FISHER

June 4, 1979

34a

APPENDIX E

- UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF GEORGIA

AUGUSTA DIVISION

BEN CarTER, Plaintiff,

wa

SHEET METAL WoRKERS INTERNATIONAL ASSOCIATION,

Defendant.

Civil Action No. CV-178-113

SUGGESTION TO DISMISS ACTION PURSUANT TO

RULE 12(h)(3)

Comes now the Defendant, Sheet Metal Workers Interna-

tional Association, AFL-CIO, an unincorporated association,

and respectfully suggests to the court pursuant to Rule

12(h)(3) of the Federal Rules of Civil Procedure that the judg-

ment entered herein must be vacated and the complaint

dismissed on the ground that the court lacks jurisdiction of

the subject matter thereof and states as follows:

1. The Petition for Removal was filed by the moving

Defendant, on or about June 14, 1978, at which time said

Defendant believed that the Plaintiff was alleging inter alia a

claim for breach of the duty of fair representation, which

would have been within the jurisdiction of the federal court

pursuant to 29 USC §185, 158, and/or 159, 28 USC §1337,

and/or a claim under 29 USC §401 et seq (the Landrum Grif-

fin Act).

2. However, by the time the case was ready for trial the

pre-trial order was prepared, and it became clear that the sub-

ject matter in issue was solely and exclusively a non-federal

tort claim arising under the laws of the State of Georgia, to

wit a conspiracy to cause injury to an individual. The claim

litigated was viewed and treated by the court as non-federal,

and the court so advised the parties and the jury.

35a

3. Insofar as the non-federal conspiracy claim is concern-

ed, it could only be litigated in the federal courts if the

jurisdictional requirements of 28 USC §1332 were met, to wit:

the matter in controversy exceeds the sum or value of $10,000

exclusive of interest and costs and the action is one between

citizens of different states. The non-federal action herein is

fatally defective in that it is not between citizens of different

states.

4. The rule as to citizenship of an unincorporated

association such as the Defendant is that ‘‘an unincorporated

association’s citizenship is that of each of its members’’.

United Steelworkers v. Bouligny, 382 US 145, 146-147 (1965).

The record demonstrates that the Defendant herein is an unin-

corporated international labor organization with approximate-

ly 150,000 members in all 50 states of the United States of

America and a substantial membership in Canada. The Defen-

dant has members in the State of Georgia, including Ben

Carter himself, the Plaintiff herein.

5. The issue of lack of federal jurisdiction may be raised

by any party at any time even after trial has occurred, and the

said issue may be raised as well by the trial or an appellate

court sua sponte. As stated in 1, Moore’s Federal Practice (2d

Ed. 1978) Paragraph 0.60[4], p.p. 624-626:

*‘The Bankruptcy Act validly authorizes a defendant to

consent to a plenary action brought in a federal court by

the bankrupcy receiver or trustee. Apart from some such

valid authorization, the mere consent of parties cannot

confer jurisdiction upon a federal court, nor can any

estoppel be utilized to endow a federal court with a

jurisdiction it does not possess. And even a party who in-

voked the federal court’s jurisdiction is not estoppel to

raise lack of federal jurisdiction after a trial on the

merits.”’

7%

36a

For the reasons given, the Defendant submits that its sug-

gestion is well taken and the complaint herein should and

must be dismissed pursuant to Rule 12(h)(3), and remanded to

the Superior Court of Richmond County, Georgia for ap-

propriate proceedings thereon.

Of Counsel:

COOPER, COOPER,

MAJORIELLO &

STALNAKER

561 Greene Street

Augusta, Georgia /s/ JACK COOPER

30903 Jack Cooper

Jacoss, JAcoBs & DAvis

Suite 707, Healey

Bldg.

Atlanta, Georgia /8/ JAMES T. LANGFORD

30303 James T. Langford

MULHOLLAND, HICKEY,

LYMAN, McCormick,

FISHER & HICKEY

741 National Bank

Building /s/ DONALD W. FISHER

Toledo, Ohio 43604 DONALD W. FISHER

June 4, 1979