Petition — Wood v. United States District Court

wMPRPICITIC VOUTT, U, N)

80-1021 | Filled

DEG 15 1980

—

IN THE

d MICHAEL RODAK, JR., CLER

SUPREME COURT OF THE UNITED STATES—

tate t

October Term, 1980

No.

MICHAEL R. WOOD,

Petitioner,

-vs-

FIVE POINTS SHOPPING CENTER,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL R. WOOD

1266 Coast Village Road

Santa Barbara, CA 93108

[805] 969-5935

Counsel for Petitioner

Pro Se

QUESTION PRESENTED

1. Is a case indistin-

guishable from Thermtron

Products, Inc. v Hermansdorfer,

423 U.S. 336, where a district

judge remanded on a ground he

had no authority to consider,

viz., che crowded condition

of the federal docket?

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

No.

MICHAEL R. WOOD,

Petitioner,

-ys-

FIVE POINTS SHOPPING CENTER,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL R. WOOD

1266 Coast Village Road

Santa Barbara, CA 93108

[805] 969-5935

Counsel for Petitioner

Pro Se

INDEX

Opinion below

Jurisdiction

Statutory provisions involved

2

2

Question presented 3

3

5

Statement of the case

Reasons for granting the writ

1.

The District Court Exceeded

Its Authority In Remanding On

Grounds Not Permitted By The

Controlling Statute 6

The Decision Of The Circuit

Court Of Appeals For The Ninth

Circuit Conclusively Deprived

The Petitioner Of Any Remedy,

Whatsoever, And Totally Failed

To Resolve The Recurring

Argument Of Whether A District

Court Judes Is Constrained To

Retain Jurisdiction Over

Diversity Actions, Properly

md a

a

INDEX - CONTINUED

Removed, And Forbidden To

Arbitrarily Remand Such

Actions Upon Purely

Discretionary Grounds, Other

‘) Than Non-Waivable Jurisdic-

tional Defects, Which Recurring

Argument Greatly Affects

Federal Jurisdiction In The

District Courts.

Conclusion

Appendix [Court of Appeals, Ninth

Circuit Order filed 9-16-80]

Appendix [Court of Appeals, Ninth

Circuit Order filed 9-19-80]

Appendix [Order of United States

District Court filed 8-18-80]

-ii-

App. A

App. B

App. C

TABLE OF AUTHORITIES

Cases

Page

Asbrandtsen v District 2, Marine

Engineers Beneficial Association

AFL-CIO, 256 F.Supp. 68 (E.D.N.Y.

1966) eoeee#s3oe*e#seeeseses e*eeeneerreresees5ee#s5qee#srnhmrfee#e#*# 1

Davis v Joyner, 240 F.Supp. 689

(B.D.M.C. 1964) weccoce Secsoceeoeccest 14

Gentle v Lamb-Weston, Inc., 302

F.Supp. 161 (N.D. Maine 1969) ....... 15

Harlan Laboratory v Topp's Chewing

Gum, 131 F.Supp 262, 267 (E.D.N.Y.

SPSS) ceccccccoccccoccce seaeedwccesne “ES

Home Insurance Co. v Morse, 20 Wall

445,' 22 &.BG. 365 (1874) ...-. rrr p

Larkin v Roseberry, 54 F. Supp. 373

fiers Mie SPEG) coccccccvcccccceccce . «=

Mac-Tronics, Incorporated v Zirpoli,

316 F.2d 820 (9th Cir. 1963) ..... cos “ae

Muller v Lyke Coastwise Line, 144 F.

Supp. 135 (S.D. Tex. 1940) wcccccccee 15

Romero v ITE Imperial Corporations,

Boe fs Seem. S23 (D.C.P.R. L972) ecco

Thermtron Products, Inc. v Hermans-

EE ES a ee

Vann v Jackson, 165 F. Supp. 377

Se eMeSs SPSS) cccccccvccceccececs ll, 14

-iii-

STATUTES

Page

28 U.S.C. §1254(1) ....-. eoccccccccsoce 3

28 U.S.C. §1441 ...-eeee. TeTTere Ts 6, 7

28 U.S.C. §1441(a) cece eerneerecvcens 3

28 U.S.C. §1443 ...... eoccesccccccccoes 4

28 U.S.C. §1446 ........ eeccccecece eee 3

28 U.S.C. §1447 wc ccc cerevenscrvcvveess 4

28 U.S.C. §1447(c) .....6. 6, 3, 6, 7, 34

28 U.S.C. §1447(d) .....- eovccccce 4, 5, 7

-iv-

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

No.

MICHAEL R. WOOD,

Petitioner,

Vv.

FIVE POINTS SHOPPING CENTER,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The petitioner Michael R. Wood respect-

fully prays that a writ of certiorari issue

to review the judgment and opinion of the

United States Court of Appeals for the Ninth

Circuit entered in this proceeding on

Sevtember lé, 1980.

OPINION BELOW

¢

The opinion of the Court of Appeals,

not reported, appears in the Appendix hereto.

The final order of remand was rendered by

the District Court for the Central District

of California, and appears in the Appendix

hereto.

JURISDICTION

The judgment of the Court of Appeals

for the Ninth Circuit was entered on

September 16, 1980. A timely petition for

rehearing was denied on September 19, 1980,

and this petition for certiorari was filed

o2<

within 90 days of that date. This Court's

jurisdiction is invoked under 28 U.S.C.

§1254 (1).

QUESTION PRESENTED

l. Is a case indistinguishable from

Thermtron Products, Inc. v Hermansdorfer,

423 U.S. 336, where a district judge

remanded on a ground he had no authority to

consider, viz., the crowded condition of the

federal docket?

STATUTORY PROVISIONS INVOLVED

Title 28 U.S.C. §1441(a) provides that

unless otherwise expressly provided by Act

of Congress, "any civil action brought in a

State court of which the district courts of

the United States have original jurisdiction,"

may be removed by the defendant to the

district court of the United States.

Section 1446 provides the procedure for

removal, and a case removed under that

o3n

section may be remanded only in accordance

with §1447 which governs procedure after

removal. Section 1447(c) provides in part:

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.

Section 1447(d) generally forbids review

of remand orders:

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 from

which it is removed pursuant to

section 1443 of this title shall be

reviewable on appeal or otherwise.

It is unquestioned in this case and

conceded by the petitioner that this section

prohibits review of all remand orders issued

whe

pursuant to §1447(c) whether erroneous or

not and whether review is sought by appeal

or by extraordinary writ.

STATEMENT OF THE CASE

The sole issue here is whether §1447(d)

also bars review where a case has been

properly removed and the remand order is

issued on grounds not authorized by §1447(c).

The District Court did not purport to proceed

on the basis that this case had been removed

"improvidently and without jurisdiction."

Neither the propriety of the removal nor the

jurisdiction of the court was questioned by °-

the judge in the slightest. Section 1447(c)

was not even mentioned. Instead, the

District Court's order was based on grounds

wholly different from those upon which

§1447(c) permits remand. The transcript of

the hearing shows that the judge remanded the

case because "This court is not disposed to

try an unlawful detainer case" [Tr. 8/18/80,

-5-

p. 6, line 25; p. 7, line 1]. This consid-

eration, however, is plainly irrelevant to

whether the District Court would have had

jurisdiction of the case had it been filed

initially in that court, to the removability

of a case from the state court under §1441l,

and hence to the question whether this cause

was removed "improvidently and without

jurisdiction" within the meaning of the

statute.

REASONS FOR GRANTING THE WRIT

1. THE DISTRICT COURT EXCEEDED ITS

AUTHORITY IN REMANDING ON GROUNDS

NOT PERMITTED BY THE CONTROLLING

STATUTE.

Although the Court of Appeals errone-

ously held that the District Court had

jurisdiction to enter its remand order, the

Court of Appeals did not mention §1447(c),

did not suggest that the District Court had

proceeded under that section, properly or

-6-

improperly, and did not itself suggest that

this case was not removable under §1441 or

that it had been improvidently removed from

the State court for want of jurisdiction or

otherwise. In the face of petitioner's

position that the remand was for reasons not

authorized by the statute, the Court of

Appeals acted solely on the ground that

under §1447(d) it had no jurisdiction to

entertain a petition for writ of mandamus

challenging the remand order issued by the

District Court in this case.

But §1447(d) does not prevent review

of remand orders in and of itself. That

section and §1447(c) must be read together.

These provisions are in pari materia and

must be construed with reference to each

other.

The district judge's inclination not

to try an unlawful detainer case is a ground

wholly different and plainly irrelevant to

the provisions of §1447(c). Therefore, the

Fu

remand was unauthorized under Thermtron

Products,

Inc. v Hermansdorfer, 423 U.S. 336.

as

THE DECISION OF THE CIRCUIT COURT

OF APPEALS FOR THE NINTH CIRCUIT

CONCLUSIVELY DEPRIVED THE PETITIONER

; OF ANY REMEDY, WHATSOEVER, AND

TOTALLY FAILED TO RESOLVE THE

RECURRING ARGUMENT OF- WHETHER A

DISTRICT COURT JUDGE IS CONSTRAINED

TO RETAIN JURISDICTION OVER DIVER-

SITY ACTIONS, PROPERLY REMOVED, AND

FORBIDDEN TO ARBITRARILY REMAND

SUCH ACTIONS UPON PURELY DISCRETION-

ARY GROUNDS, OTHER THAN NON-WAIVABLE

JURISDICTIONAL DEFECTS, WHICH

RECURRING ARGUMENT GREATLY AFFECTS

FEDERAL JURISDICTION IN THE DISTRICT

COURTS.

Petitioner, as admitted by the respond-

ent herein, properly removed this action in

strict compliance with all statutory and

= -

jurisdictional requirements. Respondent

arbitrarily remanded the action upon purely

discretionary grounds, after having

previously properly assumed and exercised

jurisdiction. The refusal of the Circuit

Court of Appeals for the Ninth Circuit to

accept jurisdiction and determine the issue ‘4

involved herein granted continued and

unlimited discretion to the respondent and

other District Court judges to remand cases,

even though properly removed, as they see

fit. In so doing, the Circuit Court of

Appeals for the Ninth Circuit has also

prevented this petitioner from obtaining any

review, whatsoever, of the purely discre-

tionary decision of the respondent. The

denial of review to this petitioner is

unconscionable. Furthermore, to permit

such unbridled discretion would certainly

have considerable impact upon federal

jurisdiction, not only within the Ninth

Circuit, but throughout the nation.

=a

The argument pronounced in judicial

decree by the respondent has recurred in

various courts; however, that contention

has been consistently rejected.

In Romero v. ITE Imperial Corporations,

332 F.Supp. 523 (D.C.P.R. 1971), a timely

petition for removal was filed on January 19,

1971. On July 7, 1971, the plaintiff filed

a motion to remand based upon the grounds

that a remand would speed up the proceedings

and would therefore be in the interest of

justice. The court stated, at page 526,

as follows:

"The right to remove an action from

a state court to the Federal

District Court is a statutory right

and it is a right that has existed

Since the original Judiciary Act

of 1789. (Citations omitted.)

'The whittling away or surrender

of diversity jurisdiction, or of

any other part of the Federal

-10-

jurisdiction which serves a

legitimate function under the

Constitution, only weakens the

federal system under which we have

long prospered and, with fair

success, have done justice between

disputants.' (Citation omitted.)

"Plaintiff's argument to the effect

that a remand would speed up the

proceedings in this case and would

therefore be in the interest of

justice is not correct .. . Once

the statutory requirements for the

right of removal have been met, this

court cannot order a remand on

discretionary grounds such as the

alleged speedier trial to be afforded

the plaintiff." (Emphasis added.)

In Vann v_ Jackson, 165 F. Supp. 377

(E.D.N.C. 1958), the court addressed the

issue of discretionary authority to remand,

-ll-

at pages 380-381, as follows:

"(T)he proposition has been advanced

that the court has discretionary

power to remand this case to the

state court, even though properly

removed to the federal court. In

considering this question, the

court must exercise care to

determine that a discretionary

power does exist, and that it will

be in the interest of justice to

exercise such discretion.

* * * Since there is no means for

reviewing an order remanding a case

to a state court, the court should

act with caution in determining

whether or not a power to remand

exists. (Citation omitted.) The

court is without power to remand if

no discretionary power exists.

De

* * * It is concluded that where

congress has provided both a state

and a federal forum, and has further

provided for actions first brought

in the state court to be removed to

the federal court, no discretionary

power exl$ts to remand the case to

the state court." (Emphasis added.)

In Asbrandtsen v District 2, Marine

Engineers Beneficial Association, AFL-CIO,

256 F.Supp. 68 (E.D.N.Y. 1966), the District

Judge gave short shrift to the argument that

despite the court's jurisdiction, that it

had discretion to remand, at page 77, as

follows:

"The Union urges the court to remand to

the state court despite a finding that

it has jurisdiction. It advances a

most unusual argument. It agrees that,

regardless of the forum, federal law

should and will be applied... It

assumes that despite a finding of

o13=

federal court jurisdiction, this court

has the discretionary power to remand

and reminds the court that, should it

remand, its order would not be subject

to review . . . Having jurisdiction,

this court in my view, has no

discretionary power to remand in a

case such as this which does not call

for the application of the doctrine

of abstention. Even if there were

such a discretionary power, the court

would not exercise it in favor of a

remand."

In Davis v Joyner, 240 F.Supp. 689

(E.D.N.C. 1964), the identical question

presented in the case of Vann v Jackson,

supra, and Larkin v Roseberry, 54 F.Supp.

373 (E.D. Ky. 1944), was presented to the

court. The court, therein, stated, at page

691, that the court's authority to remand

is found in Title 28 U.S.C. §1447(c) and

provides that the District Court shall

-14-

remand if "it appears that the case was re-

moved improvidently and without jurisdic-

tion." It was held that this was certainly

not the case, in the instant action.

The statutory right of removal is a

valuable right which must be protected by

the District Courts. Home Insurance Co. v

Morse, 20 Wall 445, 22 L. Ed. 365 (1874);

Muller v Lyke Coastwise Line, 144 F. Supp.

135 (S.D. Tex. 1940); and Gentle v Lamb-

Weston, Inc., 302 F.Supp. 161 (N.D. Maine

1969). Thus, when a District Court is

presented with an action of which it has

cognizance, it may not turn the matter over

for adjudication: to the state court. Mach-

Tronics, Incorporated v Zirpoli, 316 F.2d

820 (9th Cir. 1962).

It is readily apparent that the

recurring argument, propounded by litigants

in favor of granting discretionary power to

remand, has been consistently rejected by

District Court judges. Respondent is

, »]8o

apparently the first District Court judge

to actually infer such discretionary power,

sua sponte, to remand or infer such

discretionary power from the statutory

provisions, where such discretion is not

founded upon any legal basis or jurisdic-

tional basis but solely upon discretionary

considerations. Such discretion cannot

be justified. Only if an action is removed

"improvidently," which means "wrongfully or

without legal basis," and if the District

Court is without jurisdiction can a case be

remanded. Harlan Laboratory v Topp's

Chewing Gum, 131 F.Supp 262, 267 (E.D.N.Y.

1955). Of course, in those cases removed

improvidently and without jurisdiction, the

judicial discretion exercised is based upon

legal conclusions and not discretionary

considerations. Such is certainly not the

instant case.

It is, therefore, submitted that this

petitioner be afforded at least a review of

~16=

the discretionary decisions below.

"Remedies for rights are ever favorably

extended." 18 Vin. Abr. 521.

CONCLUSION

For these reasons, a writ of certiorari

should issue to review the judgment and

opinion of the Ninth Circuit.

Respectfully submitted,

MICHAEL R. WOOD

1266 Coast Village Rd.

Santa Barbara, CA 93108

[805] 969-5935

Counsel for Petitioner

Pro Se

ole

Appendices

APPENDIX A

UNITED STATES COURT OF APPEAL

FOR THE NINTH CIRCUIT

MICHAEL R. WOOD,

Petitioner,

UNITED STATES DISTRICT COURT; CENTRAL

DISTRICT OF CALIFORNIA,

Respondent,

FIVE POINTS SHOPPING CENTER, a Limited

Partnership (fictitious name),

succeeded by MacDONALD GROUP, LTD., a

Nevada Corporation,

Real Parties in Interest.

FILED

SEPTEMBER 16, 1980

RICHARD H. DEAN

CLERK, U.S. COURT OF APPEALS

NO. 80-7493

D.C. #80-02691-WPG

CENTRAL CALIFORNIA

ORDER

Before: Poole & Norris, Circuit Judges.

Upon due consideration, the petition for

writ of mandate has been denied.

An order remanding action to the state

court is only reviewable under a very narrow

exception to 28 USC §1447(d). See Thermtron

Products v Hermansdorfer doctrine 423 USC 336.

Based upon the materials submitted to

this court, district courts order of remand

does not appear to fall within that

exception.

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL R. WOOD,

Petitioner,

UNITED STATES DISTRICT COURT, CENTRAL

DISTRICT OF CALIFORNIA,

Respondent,

FIVE POINTS SHOPPING CENTER, a Limited

Partnership (fictitious name), succeeded

by MacDonald GROUP, LTD., a Nevada

corporation,

Real Parties in Interest.

FILED

SEPTEMBER 19, 1980

RICHARD H. DEAN

CLERK, U.S. COURT OF APPEALS

NO. 80-7504

ORDER

Before: POOLE and NORRIS, Circuit Judges.

Upon due consideration, Michael R. Wood's

second petition for writ of mandamus is

denied for the same reasons that his first

petition, No. 80-7493, was denied. The

court will not entertain any further petitions

to review the district court's order of

remand.

APPENDIX C

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

FIVE POINTS SHOPPING CENTER, a

Limited Partnership (fictitious

name), succeeded by MacDonald

Group, Ltd., a Nevada Corporation,

Plaintiff,

MICHAEL R. WOOD, GEORGE R. WOOD,

and DOES II through XX, inclusive,

Defendants.

FILED

AUGUST 18, 1980

CLERK, U.S. DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

NO. 80 02691 WPG

ORDER REMANDING TO STATE COURT

The Motion of Plaintiff to remand the

above entitled cause to the Superior Court

of the State of California, in and for the

County of Santa Barbara, having been argued,

heard and considered, it is

ORDERED that the Motion be granted and

that this cause is hereby remanded to the

Superior Court of the State of California,

in and for the County of Santa Barbara, for

further proceedings.

IT IS FURTHER ORDERED by this Court that

the Plaintiff have and recover from

Defendants its costs incurred in this Court

and attorney's fees in the amount of

for which execution is awarded.

DATED: August 18, 1980

/s/ WILLIAM P. GRAY

U.S. DISTRICT JUDGE