Petitioners Reply Brief — Wood v. United States District Court

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

No. 80-1021

MICHAEL R. WOOD,

Petitioner,

FIVE POINTS SHOPPING CENTER,

Respondent.

Certiorari To The United States Court of Appeals

For The Ninth Circuit

REPLY IN SUPPORT OF CERTIORARI

MICHAEL R. WOOD

1266 Coast Village Road

Santa Barbara, CA 93108

[805] 969-5935

Counsel for Petitioner

Pro Se

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

No. 80-1021

MICHAEL R. WOOD,

Petitioner,

-vs-

FIVE POINTS SHOPPING CENTER,

Respondent.

Certiorari To The United States Court of Appeals

For The Ninth Circuit

REPLY IN SUPPORT OF CERTIORARI

MICHAEL R. WOOD

1266 Coast Village Road

Santa Barbara, CA 93108

[805] 969-5935

Counsel for Petitioner

Pro Se

INDEX

I. THIS ACTION WAS PROPERLY REMOVED

IRRESPECTIVE OF RESPONDENT'S .

ARGUMENT, HOWEVER PROPER REMOVAL

IS NOT THE PRIMARY ISSUE HERE. 3 Ll = 6

/

II. THE DISTRICT COURT JUDGE USED

DISCRETIONARY GROUNDS TO REMAND

AND NOT THOSE PERMITTED BY THE

CONTROLLING STATUTE. 6- 9

CONCLUSIONS 9

-i-

TABLE OF AUTHORITIES

Cases

Page

Brotherhood of Locomotive Firemen

and Enginemen v Pinkston, 293

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IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

No. 80-1021

MICHAEL R. WOOD,

Petitioner,

-vs-

FIVE POINTS SHOPPING CENTER,

Respondent.

Certiorari To The United States Court of Appeals

Por The Ninth Circuit

REPLY IN SUPPORT OF CERTIORARI

I

THIS ACTION WAS PROPERLY REMOVED

IRRESPECTIVE OF RESPONDENT'S ARGUMENT,

HOWEVER PROPER REMOVAL

IS NOT THE PRIMARY ISSUE HERE.

In the respondent's brief filed in response

to petition for writ of certiorari to the United

States Court of Appeals for the Ninth Circuit,

the respondent acknowledges that Thermtron

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

(1976) permits a review of the court's order of

remand when a case is remanded for reasons not

recognized by 28 U.S.C. §1447(c) however

respondent attempts to distinguish the case at

bar as being unparallel to Thermtron by

contending that it was improperly removed.

In support of these contentions, the

respondent retrieved information stated in its

Affidavit in Support of Respondent's Motion to

Remand filed in the United States District Court

for the Central District of California and

realleged the fact that its principal place of

business is in the State of California.

Additionally, respondent circumvents the

issue of diversity of citizenship by relying on

28 U.S.C. §1441(b) which deals exclusively with

jurisdiction on removable civil actions based on

presence of federal question. As alleged in

o2@

petitioner's petition, the question of diversity

comes under 28 U.S.C. §144l(a) which state: -

"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 ..."

Clearly, this action was brought in the State

court as a civil action with diversity of

citizenship of defendants and monetary

jurisdiction met under 28 U.S.C. §§1332:(a) (1)

and §1332(a) respectively. 28 U.S.C. §§1332(a)

and §1332(a) (1) further clarify the the language

of 28 U.S.C. §1332(a), viz. “original jurisdic-

tion":

"(a) The district courts shall

have original jurisdiction of all civil

actions where the matter in controversy

exceeds the sum or value of $10,000

exclusive of interest and costs and is

between -

(1) citizens of different states"

However, the petitioner has demonstrated

that this case was properly removed by placing

into:the District Court's record an affidavit

and certified copies of State of Nevada documents

aQe

showing the respondent's principal place of

business as being in Reno, Nevada and that

respondent is incorporated in the State of

Nevada.

Curiously enough, the respondent is once

again attempting to reallege what it alleged

in the District Court, i.e. that this case was

improperly removed for lack of diversity of

citizenship by misleading the court in using

another corporation's principal place of business,

namely MacDonald Management Corporation

Corporation (which is a California corporation)

which is not the same principal place of business

as Five Points Shopping Center, the respondent

in said action, for purposes of establishing

noncompliance with the criteria for diversity as

outlined in 28 U.S.C. §1332(a) (1) and §1332(c).

Five Points Shopping Center is a Nevada

corporation with its principal place of business

in Reno, Nevada.

It is settled that the petitioner is a

a

citizen of Nevada per 28 U.S.C. §1332(c).

Regarding respondent's contentions that the

amount in controversy is deficient pursuant to

28 U.S.C. §1332(a), the amount in controversy

in the instant action relates to the contract,

which entire amount exceeds $100,000, in that

this controversy turns on the interpretation of

the "lawful money of the United States" clause

contained therein regarding the mode of payment

of the entire contract, Brotherhood of

Locomotive Firemen and Enginemen v Pinkston,

293 U.S. 96, 55 S Ct l, 79 L.Ed. 219 (1934). As

the entire contract amount is in excess of

$10,000, 28 U.S.C. §1332(a) is satisfied.

Let there be no doubt that the procedures

for removal, 28 U.S.C. §1446, were complied with

by the petitioner.

Notwithstanding proper removal, the

essential issue to bring this case within the

bounds of Thermtron is use of grounds not

authorized by statute to decide to remand. This

-5—

issue has been properly raised so respondent's

arguments concerning propriety of removal should

not be considered.

If

THE DISTRICT COURT JUDGE USED DISCRETIONARY

GROUNDS TO REMAND AND NOT THOSE PERMITTED

BY THE CONTROLLING STATUTE.

The respondent argues that ". . . itis

quite obvious that the Order of Remand was

granted for reasons set forth in 28 U.S.C.

§1447(c) . . .", p. 8, line 10, respondent's

brief, and further states that "Judge Gray first

noted that he felt the case had not been properly

removed and then, perhaps unfortunately, remarked

that he was not disposed to try this particular

kind of case under any circumstances", p. 10,

lines 13-17, respondent's brief.

Judge Gray did not "first note" at the

hearing on respondent's motion to remand that he

felt the case had not been properly removed.

The proper sequence of Judge’ Gray's thoughts is

exemplified in his statement, p. 3, line 24;

~

=

p. 4, line 6, Tr. 8/18/80:

"Well, I can't resolve the unlawful

detainer case, but it does seem to me

based upon the papers I have received

that there probably is no diversity.

Even if there is diversity, less than

$10,000 is involved and it seems to me

all that what the defendant is trying

to do here is forestall or delay an

unlawful detainer action which is part

and parcel of state law."

In this quote, Judge Gray's predisposition

against unlawful detainer cases is "first noted".

Thereafter, Judge Gray mentioned proper removal

by saying "there probably is no diversity" and

later still, with his "unfortunate remark" as

respondent refers to it, p. 10, lines 15, 16,

respondent's brief, Judge Gray reaffirmed his

position against unlawful detainer cases by

stating "This Court is not disposed to try an

unlawful detainer case", p. 6, line 25; p. 7,

line l, Tr. 8/18/80.

Far from being “obvious” that the remand

order was imposed for reasons set forth in

28 U.S.C. §1447(c), it becomes more obvious that

Judge Gray decided. the action on other than

oFa

statutory grounds.

At page 7, line 5, Tr. 8/18/80, Judge Gray

stated:

"IT am not ina position to determine

whether or not it was frivolous to have

brought [this action] it here." [Emphasis

added. ]

Perhaps Judge Gray's use of the word

"frivolous" was to mean unlawful or improvident,

thus expressly declaring he was not using

statutory grounds to remand.

Furthermore, the record is replete with

evidence of proper removal. Similarly evident,

from the district court transcript, is the fact

that Judge Gray gave cursory attention to this

substantial evidence. These two points render

Judge Gray's decision to remand suspect and

illuminate the fact that discretionary grounds

were the actual point of departure for the

decision to remand.

For these reasons there is sufficient

evidence that Judge Gray subrogated discretionary

grounds for those in 28 U.S.C. §1447(c) which

o8=

=>

brings this case within the bounds of Thermtron.

CONCLUSIONS

For the reasons set forth above, the

respondent's arguments are without merit and

should be disregarded.

Certiorari should therefore be granted to

insure that a question affecting all federal

courts does not go unattended and that the

petitioner is not denied a lawful remedy;

"Remedies for rights are ever favorably

extended." 18 Vin. Abr. 521.

Respectfully submitted,

Michael R. Wood

1266 Coast Village Road

Santa Barbara, CA 93108

[805] 969-5935

Counsel for Petitioner

Pro Se