# Petitioners Reply Brief — Wood v. United States District Court

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1004%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Reply Brief
- **Published:** January 1, 1981
- **Citation:** 450 U.S. 995

## Text

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
U.8. 96, 55 8 Ct 1, 79.44.84. 219 5
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Hermansdorfer, 423 U.S. 336
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Statutes
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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1004%3A3. Public record. Not legal advice.