# Record and brief — BMW of North America, Inc. v. Grove

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Record and brief
- **Published:** January 1, 1982
- **Citation:** 454 U.S. 1147

## Text

81-829

Office - Supreme Court
51175

ugy 2 1981

No. ———
— ä ——
IN THE

CLERK

Supreme Court of the United States

Octosern Trau 1981

BMW or Nonrn Amenica, Inc.
and

BayeriscHe Morozren Werke A. G.
Petitioners
vs.

Dax m G. Grove, Executor of the
Estate of Srvuart Sri

and
HIs RMA BMW, Inc.
and

Lonn & Bromxkamp GmbH
Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT

Leonarp L. LirpsHULTzZ

Counsel of Record

JouN LLEWELLYN Hone
LiPsHULTZ AND Hone, CHART” RED
Suite 702 - Paramount Buiiding
1735 Eye Street, N.W.
Washington, D.C. 20001

872-0909

Counsel of Record for Petitioners,
BMW of North America Inc. and
Bayerische Motoren Werke A.G.

Panes or Braon S. Avams Pawrina, Inc., Wasntnoton, D. C.

i
QUESTIONS PRESENTED FOR REVIEW

1. Whether every transfer order entered by the
United States District Court for the District of Co-
lumbia is subject to an interlocutory review by the
United States Court of Appeals for the District of
Columbia Circuit via a petition for a writ of manda-
mus because every such transfer order, by definition
of the District of Columbia Circuit, involves a trans-
fer to a district court beyond the appellate jurisdic-
tion of the United States Court of Appeals for the
District of Columbia Circuit.

2. Whether the United States Court of Appeals for
the District of Columbia Circuit erred in refusing to
follow the clear holding of this Court in Bankers Life
and Casualty Company v. Holland, 346 US. 379
(1953) that mandamus is not an appropriate remedy
to vacate a transfer order entered by a district court

judge on the ground of improper venue under 28
U.S. C. § 1406(a).

3. Whether the United States Court of Appeals for
the District of Columbia Circuit erred in refusing to
follow the Federal Rules of Appellate Procedure and
its on local rules by granting a petition for a writ
of mandamus by a two judge panel without notice to
the parties that it would do so without oral argument
and by ruling on an issue not before the court, and
hence, not briefed by the respondents therein.

ii
PARTIES BELOW

The respondents in the mandamus proceeding in
the United States Court of Appeals for the District

of Columbia Circuit, In re: Daniel G. Grove, Executor
of the Estate of Stuart Stiller, No. 81-1482, were
BMW of North America, Inc., Bayerische Motoren
Werke A.G., Heishman BMW, Iuc., Lohr & Brom-
kamp GmbH and the Honorable June L. Green, Judge,
United States District Court for the District of Co-
lumbia. Respondent Grove is the plaintiff in the dis-
trict court proceedings and was the petitioner in the
court of appeals.

TABLE OF CONTENTS

Page
Questions Presextev von Review WW i
Z ii
Won . o oo eee iv
resse dees 2
JURISDICTIONAL rar wk kk 2
re sees 3
ende oe ee 3
r eee ss beses 7

L Review by This Court Is of Imperative Public
Importance and Is Necessary To Prevent the
Usurpation of Judicial Power by the United States
Court of Appeals for the District of Columbia
Cireuit and To Define the Proper Scope of Manda-
mus Within the District of Columbia Cireuit ..... 7

A. A Writ of Mandamus is an Inappropriate
Remedy to Vacate a Transfer Order Entered
Pursuant to 28 U.S.C. 5 1406%ꝓ))))) x

B. A Writ of Mandamus is an ay
Remedy to Review Every Transfer of
the United States District Court for the District
Sr PEE SeteGdecccvcovescvosenennsécede 11

1. Resort to mandamus is authorized only in
extraordinary eireumstan ces 11

2. Resort to mandamus to vacate a transfer
order encourages piecemeal appeals ....... 17

II. The United States Court of A for the Dis-
trict Of Columbia Circuit, in Refusing to Follow
the Federal Rules of Appellate Procedure and Its
Own Local Rules, Has so far Departed from the

iv

Table of Contents Continued

Accepted and Usual Course of Judicial Proceed-
ings as to Call for an Exercise of This Court’s
Power of Supervision ...........0ccceccccceeee 21

A. The Petition for a Writ of Mandamus Was
Granted Without Notice to the Parties that the
Court would do so Without Oral Argument. 22

B. The Oral A t Was Denied Without the
Unanimous Consent of a Three Judge Panel 24
Conclusion ........ e 26
roses e eee esse 0 1a

TABLE OF AUTHORITIES

Cases:
*Bankers Life and Casualty Co. v. Holland, 346 US.
„„ passim
De Beers Consol. Mines, Lid. v. United States, 325
5 fF eee error 11
mel 15 ’ American Steel Barrel Co., 230 US. 7. 9
e Sis coNseeevecounders ,
Ez parte ‘is 332 U.S. 258 (1947y)ꝗ0 11
Ez parte Roe, 234 U.S. 70 (191))))))))) 9, 10
Goldlawr v. Heiman, 369 U. S. 463 (1962) 10
Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947) 20
Hoffman v. Blaske, 363 U.S. 335 (1960) 20

International Shoe Co. v. Washington, 326 U.S. 310
r bees esse eee 1

Kerr v. eee eee 426 US. 394
— — bees 11

Cases or authorities chiefly relied upon are marked by asterisks.

v

Table of Authorities Continued
Page
Mouzavires v. Bazter, slip op., No. 11696 (D.C. App.
e „„ „ „„ „„ 10
McKenna v. Udall, 135 U.S. App. D. C. 335, 418 F. 2d
un e.. . . „6666 „„

acer v. Nationwide Ae yg Inc., 485 F. 2d 418
(Temp. Em. Ct. App. D.C. 1973) 19, 23

National Right to Work Legal Defense Fund v.
Richey, 167 US. App. D.C. 18, 510 F.2d 1239
cert. denied, 422 U.S. 1008 (19759) 15-16

Remington-Rand, Inc. v. Knapp Monarch Co., 139 F.
Supp. 613 (E. D. Pa. 19560)ꝗ·

Noche v. Evaporated Milk Ass'n, 319 US. 21
eee eee 9, 11, 18

Thermtron Products, Inc. v. Hermansdorfer, 423 US.
Z

Torres v. Walsh, 221 F.2d 319 (2d Cir.), cert. denied,

eee ee eee sees ere 17
Van Dusen v. Barrack, 376 U.S. 612 (196640) 19
Will v. Calvert Fire Insurance Co., 437 US. 655

„eee dees ebe 17
Will v. United States, 389 US. 90 (1967) 777 11,17

*World-Wide Volkswagen Corp. v. Woodson, 444 US.

286 (1980) ........ eee ss eee ee 10, 21, 23
Sratures:

rr se had 6oés0e6edssndéeeoesves’ 16

eee .es eeesbessbeeeee 16

Z 3, 12, 15

28 U.S.C. 6 12546()))) 90s bébbedtosese 3

eee. es ese ceoderes 3, 12, 15

Cases or authorities chiefly relied upon are marked by asterisks.

vi

Table of Authorities Continued
Page
ED esse 65 3, 5, 17
F ̃ 2. es 5, 10
28 U.S.C. 6 11 e) 2, 3, 8, 10, 16, 19, 20,
eee .. see ee bodese 16
r 3, 15, 19
J BS Ee 2, 3, 8, 10, 19, 20
, ͤ; A ee a 3
13 D. C. Code Ann. § 423 (1981 d.)) 5, 10, 23
Ruies:
ED Ee 00 24
eee .es eee 22, 24
rere .es eee 24
MisceLLanrous:
In-House Report of the United States District
Court for the District of Columbia .......... 16

Cases or authorities chiefly relied upon are marked by asterisks.

No. —

IN THE

Supreme Court of the Anited States
Octoser Texm 1981

BMW or Nonrn Amenica, Inc.

and

Bayeriscue Moronen Werke A.G.

Petitioners

vs.

Dante. G. Grove, Executor of the

Estate of Srvuart STiL_er
and
HeisumMan BMW, Inc.

and

Lone & Bromxkame GmbH
Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT

Petitioners, BMW of North America, Inc., and
Bayerische Motoren Werke A.G., respectfully pray
that a writ of certiorari issue to review the issuance
of a writ of mandamus by the United States Court

2

of Appeals for the District of Columbia Circuit on
July 2, 1981, (rehearing en bane denied August 5,
1981), and that the Order issuing the writ of manda-
mus be reversed.

The Honorable June L. Green, Judge of the United
States District Court for the District of Columbia, is-
sued an unreported memorandum opinion and order
on February 27, 1981, in which this action was trans-
ferred to the United States District Court for the Dis-
trict of Maryland, pursuant to 28 U.S.C. § 1406(a) on
the ground of improper venue under 28 U.S. C. § 1391
(e) (App. E). The United States Court of Appeals
for the District of Columbia Circuit, upon petition by
Respondent Grove, then issued a writ of mandamus in
an unreported per curiam order and opinion dated
July 2, 1981 which vacated the transfer order and re-
manded the case for further proceedings (App. A). A
motion to set aside the order issuing the writ of man-
damus and a petition for rehearing was denied per
curiam without opinion by the Court of Appeals on
August 5, 1981 (App. B). Also, on August 5, 1981, the
United States Court of Appeals for the District of Co-
lumbia Circuit, en banc, denied, per curiam without
opinion, a suggestion for rehearing en banc. (App. C).

JURISDICTIONAL STATEMENT

Jurisdiction to review these Orders of the Court of
Appeals dated July 2 and August 5, 1981, by Writ of
Certiorari is conferred on this Court by 28 U.S. C.
91254 (1).

STATUTORY PROVISIONS

This case involves the fuiiowing statutory provisions
which are set forth in Appendix K:

28 U.S.C. 5 41

28 U.S.C. 5 1254(1)

28 U.S.C. § 1291

28 U.S.C. § 1292(b)

U.S. C. 5 1391(¢)

U.S. C. 5 1404(a)

U.S. C. § 1406 (a)

U.S. C. 5 1651 (a)

D. C. Code Ann. § 423 (1981 ed.)

BSS

On April 22, 1980, Respondent Daniel Grove, a resi-
dent of the State of Maryland, commenced the under-
lying survival and wrongful death action as the Execu-
tor of the Estate of Stuart Stiller who died on August
4, 1979, in the State of Maryland, as a result of in-
juries sustained in Maryland in a one car automobile
accident (App. M). The accident occurred on August
4, 1979, as Stuart Stiller was driving a 1978 BMW
530i automobile which allegedly went out of control
and struck a tree as he was travelling northward on
Maryland State Route 355 (App. T at 76a). Mr. Stiller
was taken by members of a Maryland Rescue Squad to
a Maryland hospital ( App. T at 78a) where he received
treatment by Maryland physicians. The accident was
investigated by the police department of
County, Maryland (App. T at 79a). The automobile
was towed from the scene by a Maryland towing com-
pany to Bethesda, Mar) land (App. T at 79a) where it
remained until August 6, 1979, when it was towed to
the Montgomery County Police Department Substa-

*

4

tion located in Rockville, Maryland for examination
by the Montgomery County Police Department (App.
T at 79a). On September 10, 1979, the car was towed
to Dehn’s Auto Repair in Rockville, Maryland, alleg-
edly for the purpose of storage (App. T at 79a).

The sole eyewitness to the accident was Barbara
Butler, who resides in Daytona Beach, Florida ( App.
Tat 77a). The plaintiff's tentative experts are resi-
dents of the States of Michigan and Maryland’ (App.
T at 78a). These Petitioners’ witnesses are all residents
of jurisdictions other than the District of Columbia.’

This underlying action was brought in the United
States District Court for the District of Columbia
against Heishman BMW, Inc., BMW of North Amer-
ica, Inc.“ (hereinafter referred to as BMWNA), Bay-

Robert Brenner s address is 6400 Goldsboro Road, Bethesda,
Maryland, 20034, erroneously listed as being in Washington, D.C.
by plaintiffs.

These facts are recited herein so that this Court will fully
appreciate the jurisdictional foundations and the venue considera-
tions of this case as they relate to the discussion of the propriety
of transfer, infra.

* Heishman is a closed corporation incorporated under the laws
of the State of Virginia. Heishman sold the BMW vehicle which
Stuart Stilier was operating at the time of his demise to the Mary-
land National Bank (not a party herein) which in turn leased the
vehicle to Stiller, Adler and Schwartz, P.C., the law firm with
which Mr. Stiller was associated (App. T at 77a). Heishman does
business in Virginia, Maryland and the District of Columbia.

*BMWNA is a corporation incorporated under the laws of the

a wholly owned subsidiary of BMWAG (App. 0).

5

erische Motoren Werke A. G.“ (hereinafter referred to
as BMWAG), and Lohr & Bromkamp GmbH (here-
inafter referred to as Lohr), on various theories of
alleged negligence in repair, maintenance, assembly,
manufacture and design of the automobile Stuart Stil-
ler was driving at the time of the accident (App. M).
The basis for jurisdiction in the district court is alleg-
edly founded upon 28 U.S.C. § 1332 and 13 D.C. Code
Ann. § 423 (1981 ed.), (App. E).

Subsequently, BMWNA, BMWAG and Lohr timely
moved to dismiss this action or to transfer it to the
United States District Court for the District of Mary-
land on the grounds of lack of jurisdiction and im-
proper venue (App. N, P). These motions were initially
denied by the trial court. (App. I. J). These Petitioners
and Lohr, after seeking reconsideration of the afore-
mentioned denials of their motions to dismiss or trans-
fer, (App. H), then sought, pursuant to 28 U.S.C.
§ 1292(b), certification of the orders denying the said
motions. At a status call the district court treated these
motions to certify as motions to reconsider its previous

*BMWAG is the manufacturer of BMW automobiles and is
organized under the law of the Federal Republie of Germany,
having its principal place of business in Munich, Federal Republic
of Germany. BMWAG does no business in the District of Columbia
(App. Q).

* Lohr is also organized under the laws of the Federal Republic
of Germany. Its principal place of business is in Offenbach am
Mein, Federal Republic of Germany. Lohr designs, manufactures
and assembles component automobile parts, and is the manufacturer
and seller of the constant velocity joint which Respondent Grove
alleges was defective, and caused the automobile which Stuart
Stiller was driving to go out of control. Lohr conducts no business
in the United States ( App. R).

ruling (App. U at 86-87a). As a result of this reconsid-
eration, the district court on February 27, 1981, issued
a memorandum opinion which denied the motions to
certify (App. F) and held that venue was improper in
the District of Columbia as none of the moving defend-
ants were doing business in the District of Columbia
and that this case should therefore be transferred to the
United States District Court for the District of Mary-
land ( App. E at 9a) where venue was proper (App. U).

Respondent Grove immediately sought reconsidera-
tion of the memorandum opinion (App. L at 25a) and
thereafter moved for certification under 28 U.S.C.
§1292(b) (App. L at 25a). When these motions were
denied by the district court, Respondent Grove peti-
tioned the United States Court of Appeals for the Dis-
trict of Columbia Circuit for a writ of mandamus, pri-
marily to compel Judge Green to vacate her transfer
order. On May 27, 1981, the Court of Appeals ordered
these Petitioners to respond to the aforesaid petition
for a writ of mandamus App. D) in accordance with
F.R. App. P. 21(b). Petitioners BMWAG and
BMWNA timely responded to the petition for a writ
of mandamus on June 16, 1981, and Lohr responded
on June 17, 1981. The issuance of a writ of mandamus
by the Court of Appeals came on July 2, 1981 ( App.
A) without notice to the parties of the dates on which
briefs were to be filed or of a date for oral argument.
These Petitioners on July 16, 1981, then jointly with
Lohr, moved to set aside the order issuing the writ of
mandamus and petitioned the Court of Appeals for a
rehearing en banc. Both the motion and the petition
were denied per curiam on August 5, 1981 (App. B, C).
This Petition for a Writ of Certiorari followed.

A writ of certiorari must issue in this case to prevent
the patent injustice which these Petitioners will suffer
as a result of the impermissibly broad expansion of the
scope of mandamus by the United States Court of
Appeals for the District of Columbia Circuit. In issu-
ing a writ of mandamus herein, the Court of Appeals
has ignored the explicit holdings of this Court and es-
poused the view that a writ of mandamus is available
to review every transfer order entered by the United
States District Court for the District of Columbia.
Such an interpretation of the All Writs Act’ allows
the United States Court of Appeals for the District of
Columbia Cireuit to exercise supervisory power over
its district court unparalleled by the power of any
other court in the United States. The procedure uti-
lized by the Court of Appeals transforms an extraordi-
nary remedy into one which sanctions piecemeal ap-
peals prior to final judgment and deprives the district
court of its authority to decide questions of law. The
unsupportable action of the Court of Appeals evi-
dences the need for this Court to invoke its supervisory
powers over the United States Court of Appeals for
the District of Columbia Circuit so that interlocutory
decisions in the United States District Court for the
District of Columbia will not be under constant and
continuous review by that appellate court.

728 USC. § 1651.

A. A Writ of Mandamus is an Inappropriate Remedy to Vacate a
Transier Order Entered Pursuant to 28 U.S.C. § 1406(a).

The issue affirmatively decided by the United States
Court of Appeals for the Distrist of Columbia Circuit
was that a writ of mandamus is an appropriate rem-
edy to vacate a transfer order of its district court
under 28 U.S. C. § 1406(a) (App. A). However, this
Court in Bankers Life and Casualty Co. v. Holland,
346 U.S. 379 (1953), decided the very issue before the
Court of Appeals when this Court held that mandamus
is not an appropriate remedy to vacate a severance
and transfer order entered by a district court judge on
the ground of improper venue under 28 U.S.C. § 1406
(a) In fact, no opinion of this Court subsequent to
Bankers Life has allowed a court of appeals through a
writ of mandamus to vacate a transfer order of a dis-
trict court under 28 U.S. C. § 1406(a). The total lack
of authority for the actions of the Court of Appeals
and the flagrant refusal to follow the clear holding of
Bankers Life underscores the need for this Court to
reverse the Order of the United States Court of Ap-
peals for the District of Columbia Circuit.

In granting mandamus, the Court of Appeals appar-
ently ignored this Court’s lengthy discussion in Bank-
ers Life on the unavailability of mandamus in cases
precisely like the case at bar. In Bankers Life, this

*In Bankers Life, the district court had first determined that it
had jurisdiction of the cause under 28 U.S.C. § 1391. The district
court in Bankers Life then decided that venue was improper and,
under the identical statute invoked herein, transferred the case to
another district. A writ of mandamus directed to the trial judge
was then sought by the Petitioner, Bankers Life and Casualty Co.,
to vacate the transfer order and this Court subsequently affirmed
the denial of the petition for a writ of mandamus by the Court

of Appeals.

Court, in language particularly instructive here,
stated :

... the ‘traditional use of the writ of mandamus
in aid of appellate jurisdiction both at common
law and in the federal courts has been to confine
an inferior court to a lawful exercise of its pre-
scribed jurisdiction or to compel it to exercise its
authority when it is its duty to do so.’ Here, how-
ever, petitioner admits that the court had juris-
diction both of the subject matter of the suit and
of the person of Commissioner Cravey and that it
was necessary in the due course of the litigation
for the respondent judge to rule on the motion.
The contention is that in acting on the motion and
ordering transfer he exceeded his legal powers and
the error ousted him of jurisdiction. But jurisdie-
tion need not run the gauntlet of reversible errors.
The ruling on a question of law decisive of the
issue presented by Cravey’s motion and the repli-
cation of the petitioner was made in the course of
the exercise of the court’s jurisdiction to decide
issues p brought before it. Ez e Amer-
ican Steel Barrel Co., 230 U.S. 35, (1913);
Ex parte Roe, 234 U.S. 70, 73 (1914). Its decision
against petitioner, even if erroneous—which we
do not pass upon—involved no abuse of judicial
oche v. Evaporated Milk Aas u. [319 US.

1 (1943), and is reviewable upon appeal after
final j t. If we applied reasoning ad-
vanced by the petitioner, then every interlocutory
order which is wrong might be reviewed under the
— 8 Act. (Footnote Omitted) 346 US. at

It is therefore submitted, based upon the reasoning
above, that Bankers Life and Casualty Co. v. Holland
is indistinguishable from the present case and that
mandamus under the circumstances of this action was

inappropriate.

10

Judge Green, much like the district court judge in
Bankers Life, first determined that jurisdiction over
these defendants was conferred on her court pursuant
to 28 U.S.C. § 1332 and D. C. Code Ann. § 13-423 (a)
(1)’ (1981 ed.) (App. E at 7a). Similarly, the district
court herein then found that venus was improper un-
der 28 U.S.C. § 1391 and transferred this case under
28 U.S.C. § 1406(a)” (App. E at Sa). After reviewing
the facts, the decision to transfer was, as in Bankers
Life, a ruling on a question of law which was made
during the course of the exercise of the district court’s
jurisdiction, Ez parte American Steel Barrel Co., 230
US. 35 (1913), Ez parte Roe, 234 U.S. 70 (1914), and
is reviewable upon direct appeal after final judgment,
Bankers Life, supra; thus, mandamus was unneces-

sary.

*Tnese Petitioners have vigorously contested this in personam
jurisdiction of the district court under D.C. Code Ann. § 13-423(a)
(1) (1981 ed.) since the outset of this case and have recently filed
& joint motion for reconsideration of the district eourt s jurisdic-
tional findings based upon this Court’s holding in World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980), and the Dis-
triet of Columbia Court of Appeals’ recent decision in Mouzavires
v. Bazter, slip op. No. 11696 (D.C. App., August 5, 1981). In any
event, a finding by the transferor court that it has jurisdiction of
an action is unnecessary and irrelevant to a decision to transfer the
ease to another district on the basis of improper venue. See, Gold-
lawr v. Heiman, 369 U.S. 463 (1962).

% Under 28 U.S.C. § 1406(a), the district court of a district in
which venue is laid in the wrong district is required to either dis-
miss the action or to transfer it to any district in which it could
have been brought (App. K at 18a).

11

B. A Writ of Mandamus is an Inappropriate Remedy o Review
Every Transier Order of the United States District Court for
the District of Columbia

1, Resort to Mandamus is authorized only in
extraordinary circumstances.

The first requirement for the invocation of one of
„the most potent weapons in the judicial arsenal,“
Will v. United States, 389 U.S. 90 (1967), is that the
petitioner show that his right to the issuance of the
writ is ‘‘clear and indisputable. Id. at 96. A classic
example of the proper use of the extraordinary writ
to protect appellate jurisdiction appeared in Therm-
tron Products, Inc. v. Hermansdorfer, 423 U.S. 336
(1976), wherein the action had been remanded to a
state court on grounds completely unauthorized by
statute. As this Court has said, the proper use of
mandamus arises only in exceptional and extraordi-
nary circumstances to confine a lower court to a lawful
exercise of its prescribed jurisdiction or to compel
it to exercise its authority when it has a duty to do
so, Roche v. Evaporated Milk Ass’n., 319 US. 21
(1943), Kerr v. United States District Court, 426 US.
394 (1976), Bankers Life and Casualty Co. v. Holland,
supra, and only those circumstances amounting to a
judicial usurpation of power will justify the invoca-
tion of this drastic remedy. De Beers Consol. Mines,
Lid. v. United States, 325 U.S. 212 (1945). Mandamus,
as an extraordinary remedy, is reserved for ‘‘really
extraordinary causes.”’ Ez parte Fahey, 332 U.S. 258,
260 (1947).

In issuing a writ of mandamus to vacate the order
of the United States District Court for the District of
Columbia transferring this action to the United States
District Court for the District of Maryland, the Court

12

of Appeals relied upon the incorrect rationale that
the district court’s finding of improper venue in the
District of Columbia would evade review absent the
remedy of mandamus.” (App. A). However, this state-
ment is in error as the finding of improper venue by
the district court would be reviewable upon direct ap-
peal to the United States Court of Appeals for the
Fourth Circuit once a final judgment is rendered. 28
U.S. C. § 41; 28 U.S.C. § 1291; Bankers Life and Cas-
ualty Co. v. Holland, supra at 382. What the Court of
Appeals must have intended, therefore, is that the
venue ruling would not be subject to its own review
absent the remedy of mandamus. However, the Court
of Appeals did not explain why the United States
Court of Appeals for the Fourth Circuit is not equally
as competent to decide a question of federal law as is
the United States Court of Appeals for the District of
Columbia Circuit. Nor did the Court of Appeals ex-
plain how this transfer order was distinguishable from
any other transfer order entered by its district court
or any transfer of litigation between district courts of
different circuits, thus justifying resort to the extra-
ordinary writ.

The Court of Appeals was similarly in error when

it attempted to distinguish the holding in Bankers
Life™ by stating:

A writ of mandamus is the a te remedy in
this case to vacate the transfer of the district
court. Bankers Life d Casualty Co. v. Holland,
346 U.S. 379 (1953) is not dispositive. In that case,
“whatever ‘judicial inconvence [sic] and hard-
ship’ [existed would] remain, after transfer,
n Bankers Life was the only case cited in the Court of Appeals
pertaining to mandamus.

13

within the realm of the same court of a Is,
which had denied the writ, since both of the dis-
tricts were within that circuit ... (App. A).

Under the above interpretation by the Court of Ap-
peals, whenever a transfer is ordered between circuits,
mandamus is available to the parties to cause the trans-
feror court of appeals to review the correctness of the
ruling of its district court and to avoid “‘judicial in-
convenience and hardship.’’ This interpretation, how-
ever, is based upon a partial quotation from Bankers
Life which seemingly is supportive of the Court of
Appeals’ view of judicial inconvenience and hard-
ship.’’ An analysis of the full statement of this Court,
however, reveals that a wholly different interpretation
is to be given to the concept of judicial inconvenience
and hardship:

being delayed until after final judgment.
establi that the extraordinary writs cannot be

ry
out the writ may not be done with it. ... We may
assume that, as petitioner contends, the order of
transfer defeats the objective of trying related
issues in a single action and will give rise to a my-
riad of legal and practical problems as well as in-
convenience to both courts; but Congress must
have contemplated those conditions in ore
that only final judgments are reviewable. Peti-
tioner has alleged no special circumstances such
as were present in the cases which it cites. Fur-
thermore, whatever ‘judicial inconvenience and

7 a remain after trans-
fer, wi the realm of the same court of appeals

14

which has denied the writ, since both of the dis-
tricts are within that circuit; and it is not clear
that adequate remedy cannot be afforded peti-
tioner in due course by that court to ent some
of the conflicts and procedural problems antici-
ae BH citations and footnotes omitted) 346 US.
at 12

The United States Court of Appeals for the Distriet
of Columbia Circuit illogically assumes that a corollary
to the statement quoted in its Order is that if a trans-
fer involves a district court in a different circuit the
writ of mandamus lies because the same court of
appeals which has denied the writ will lose appellate
jurisdiction. However, when there is simply a transfer
between district courts of different circuits (without a
severance) there is no judicial inconvenience or hard-
ship existing after transfer within the transferor cir-
cuit. The transferee circuit assumes the hardship in-

In Bankers Life the United States District Court for the
Northern District of Florida was presented with a motion to dis-
moving defendant was
case

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15

herent in the transfer, if any, and any errors commit-
ted by either of the district courts will be reviewable
by the court of appeals of the transferve circuit upon
appeal after final judgment consistent with the contem-
plation of Congress and this Court as identified in
Bankers Life.

Furthermore, the fallacy in the rationale of the
Court of Appeals in authorizing mandamus as a means
of reviewing transfer orders is readily apparent on
other grounds. By the very definition of the District
of Columbia Circuit every transfer order entered by
the United States District Court for the District of
Columbia involves a transfer to a district court beyond
the appellate jurisdiction of the United States Court
of Appeals for the District of Columbia Circuit, since
that circuit contains only one district court. 28 U.S.C.
§ 41; 28 U.S.C. § 1291. Thus, under the Court of Ap-
peals’ rationale for granting mandamus here, trans-
fers for want of jurisdiction or improper venue en-
tered pursuant to, for example, 28 U.S.C. § 1404(a) or
28 U.S.C. 5 1406(a) will be potential candidates for
pre-judgment review because the basis for the transfer
will not otherwise be reviewable by the United States
Court of Appeals for the District of Columbia Circuit.
This view of the scope of the power of the Court of
Appeals to issue writs of mandamus increases the ap-
pellate power of the Court of Appeals while simul-
taneously reducing the power of its district court to
decide questions of law. This view also creates an un-
certainty in the District of Columbia Circuit as to
when mandamus is warranted” and it overlooks the

Compare the Order of the Court of Appeals in this case with
that Court s opinion on the proper scope of mandamus in National
Right to Work Legal Defense Fund v. Richey, 167 U.S. App. D.C.

16

comity of the circuits in the United States Court of
Appeals. It further conflicts with the point that the
Congress of the United States, in providing for review
of only final judgments, must have contemplated that
some judicial inconvenience and hardship results in
transfers between circuits. Lastly, this view ignores the
extraordinary nature of mandamus, and encourages a
policy of piecemeal appeals prior to final judgment.
The implications of the decision of the Court of Ap-
peals for future litigation also go beyond the holding
in this case because venue under 28 U.S.C. § 1391 (e) is
not the only venue provision potentially subject to
transfer; the Judicial Code provides many venue sec-
tions (which include, but are not limited to, those con-
tained in the Clayton Antitrust Act, 15 U.S.C. § 15;
the Patents and Copyrights Act, 28 U.S.C. § 1400; and
the Securities and Exchange Act of 1934, 15 U.S.C.
§ 78aa). In the calendar year 1980 there were one hun-
dred eighteen (118) transfer orders entered by the
United States District Court for the District of Colum-
bia in civil cases. Through the end of August, 1981,
there were ninety five (95) such transfer orders.”
Since each of these transfers by definition involves a

18, 510 F.2d 1239, cert. denied, 422 U.S. 1008 (1975), wherein the
Court of Appeals stated ‘‘the writ of mandamus is not to be used

These figures appear in the In-House Report of the United
for the District of Columbia on the Civil

if
i

17

transfer to a circuit other than the District of Colum-
bia Circuit, under the rationale of the Court of Ap-
peals in this case, approximately one hundred cases
each year are potentially subject to an early review
ly a petition for a writ of mandamus in the United
States Court of Appeals for the District of Columbia
Cireuit. Thus, the allowance of the writ of mandamus
by the Court of Appeals herein evidences that appel-
late court’s willingness to transform. . . the ordinary
run-of-the-mill type of litigation which goes through*
the District Courts from day to day,“ Torres v. Walsh,
221 F.2d 319, 322 (2d Cir.), cert. denied, 350 U.S. 836
(1955), into an exceptional, extraordinary case for
which mandamus is appropriate.

2. Resort to Mandamus to vacate a transfer order
encourages piecemeal appeals.
A major difficulty with the holding of the Court of
Appeals in the instant action is that it encourages a

procedure of pre-judgment appeals. This Court has
repeatedly stressed the importance of the proscription
against piecemeal appeals even where there has been
a simple error which would justify reversal on direct
appeal. Will v. Calvert Fire Insurance Co., 437 US.
655 (1978), Will v. United States, supra.

The opinion of the Court of Appeals demonstrates
an assumption of power by that court heretofore un-
recognized by any opinion of this Court. The Court of
Appeals is now apparently willing to review the cor-
rectness of each transfer order via mandamus before
the record escapes its appellate jurisdiction.” This

% The proper remedy for relief from an allegedly incorrect venue
ruling is to either seek certification of the ruling under 28 U.S.C.
§ 1292(b) or to directly appeal the final judgment rendered in the
ease. Congress in enacting 28 U.S.C. § 1292(b) provided one eireum-
stance in which a pre-judgment appeal could be entertained and

18

view of mandamus jurisdiction flies in the face of the
decisions of this Court and particularly the language
of Roche v. Evaporated Milk Ass’n., 319 U.S. 21 (1943)
where, in reversing the court of appeals, this Court
sta‘ed:
In the ene ease, the district court has acted
within its jurisdiction and has rendered a decision
which, even if erroneous, involved no abuse of ju-
dicial er. In issuing the writ, the court of ap-
peals below has done no more than substitute
mandamus for an a 1 contrary to the statutes
and the policy of , which has restricted
that court’s appellate review to final judgments
of the district court. 319 U.S. at 32.

It cannot be argued that the district court herein acted
beyond its jurisdiction in ruling that the venue was
improper in the District of Columbia as Bankers Life
disposes of such a contention and under Roche and
Bankers Life the Court of Appeals should not even
have reviewed the lower court’s venue decision. Thus,
the Court of Appeals has unlawfully sanctioned the
premature review of venue rulings by the use of man-
damus. The Court of Appeals in this case apparently
felt that Judge Green applied the incorrect test in
ordering a transfer and therefore mandamus was ap-
propriate to correct that error” (App. A). However,
Judge Green’s memorandum opinion shows that she

expressed its intent to limit other appellate review to appeals from
final judgments. Since certification under § 1292(b) was denied here
(App. G) review of the district court s venue ruling should there-
fore await the final judgment in this case.

The Court of Appeals refused to allow these Petitioners to
brief this issue in that Court. A separate discussion of the prejudice
these Petitioners have suffered thereby appears in Part II, infra.

19

ably followed the holdings of other courts which have
addressed the question of whether the conduct of the
particular defendants met the criteria of ‘‘doing busi-
ness within the meaning of 28 U.S.C. 5 1391(c). In
fact, one of the authorities relied upon by the district
court in the memorandum opinion, Mosley v. Nation-
wide Purchasing, Inc., 485 F.2d 418 (Temp. Em. Ct.
App. D.C. 1973) was a District of Columbia authority
for the very proposition which Judge Green invoked.
The opinion of the Court of Appeals in granting man-
damus, however, shows that that Court was forced to
look to a decision outside the District of Columbia Cir-
cuit to vacate Judge Green’s order.” Since the question
of whether venue was improper in the District of Co-
lumbia became a question of law after a factual deter-
mination, Judge Green acted within her jurisdiction
and discretion in ruling upon it, and mandamus there-
fore cannot be used to alter that decision. Bankers Life
and Casualty Co. v. Holland, supra.

The fact that transfers under 28 U.S. C. § 1406(a)
involve a question of law distinguishes those decisions
to transfer or dismiss under 28 U.S. C. § 1404(a). As
this Court stated in Van Dusen v. Barrack, 376 US.
612 (1964):

Although both sections were broadly designed to
allow transfer instead of dismissal, § 1406(a) pro-
vides for transfers from forums in which venue

% Whether the doing business test under 28 U.S.C. § 1391 (e)
is identical to the jurisdictional standards first set forth in Inter-
national Shoe Co. v. Washington, 326 U.S. 310 (1945), is an open
question in the District of Columbia because the case cited by the
Court of Appeals, McKenna v. Udall, 135 US. App. D.C. 335, 418
F.2d 1171 (1969), does not support this notion and in fact ex-
presses no clear view at all on the subject.

or improperly laid, w!ereas, in con-

2 71 (a) operates on the eee See

pian ff has properly anode’ b is venue privi-
. [and] despite the propriety of the —

b 's venue se on, the chosen forum was an in-
1 one. (footnotes omitted) 376 U.S. at

Furthermore, unlike § 1406(a), transfers under § 1404
(a) involve, inter alia, factual considerations of con-
venience to parties and witnesses. See Gulf Oil Corp. v.
Gilbert, 330 U.S. 501 (1947) and Hoffman v. Blaski,
363 U.S. 335 (1960). Therefore, unlike cases involving
§ 1406(a), mandamus may be appropriate in a § 1404
(a) situation because venue has been determined to be
proper in the forum and mandamus may be needed
to analyze whether the district court considered the
proper factors in ordering a transfer. But where, as
here, venue is improper in the first instance as a mat-
ter of law, mandamus is clearly unavailable as there is
no usurpation of judicial power or abuse of discretion
justifying the extraordinary writ. Bankers Life and
Casualty Co. v. Holland, supra.

The circumstances of this case emphasize the im-
portance of the policy of requiring a final judgment
as a prerequisite to appeal and the prohibition against
interlocutory appeals. Here, the Court of Appeals
ruled that both jurisdiction and venue were proper in
the District of Columbia, yet there was no factual basis
for such a finding. Every affidavit on file reflects that
none of the moving defendants are doing business in
the District of Columbia (App. O, Q, R, 8) and that
their conduct and connection with the District of Co-
lumbia are not such that they could reasonably antici-
pate being called upon to answer a suit in that forum.

21

Sce, World-Wide Volkswagen Corp. v. Woodson, 444
U.S. 286 (1980). Aside from the lack of a factual foun-
dation for the court’s ruling, the issues in this case
have not narrowed to the point where appellate review
is meaningful,” nor have all the potential issues of this
case surfaced. Despite these considerations, these Pe-
titioners are now forced to seek relief from this Court
because the dicta in the Order of the Court of Appeals
concerning the jurisdiction and venue issues which
were never briefed or properly before that Court, may
be construed as the law of the case at both the trial
and appellate levels absent review by this Court.

IL. The United States Court of Appeals for the District of Co-
lumbia Circull, in Refusing to Follow the Federal Rules of
Appellate Procedure and lis Own Local Rules, Has so far
Departed from the Accepted and Usual Course of Judicial Pro-
ceedings as to Call for an Exercise of This Court's Power of
Supervision.

The judgment of the Court of Appeals should be re-
versed not only because mandamus was inappropriate,
but also because the Court of Appeals failed to follow
the applicable appellate rules in its consideration of
this case. The petition for a writ of mandamus was
filed in the Court of Appeals on May 4, 1981. These
Petitioners (respondents in the Court of Appeals)
were then ordered on May 27, 1981, to respond to the
aforesaid petition within twenty days (App. D). Re-
sponses were timely filed, but thereafter, without no-
tice to the respondents of when to file briefs or of the

% For example, the petition for a writ of mandamus identified
three issues relating in general to discovery, dismissal and choice-
of-law in addition to the jurisdictional and venue issues presented
to the Court of Appeals.

22

date for oral argument, the Court of Appeals ordered
that the writ of mandamus should issue (App. A). The
decision not to allow oral argument was in violation of
appellate procedure as it was presun ably made by only
two judges rather than the required three judge panel
since ‘‘Circuit Judge McGowan did not participate in
the] order (App. A at 2a).

A. The Petition for a Writ of Mandamus Was Granted Without
Notice to the Parties that the Court would do so Without the
Requirement of Briefs or Oral Argument.

Rule 21 of the Federal Rules of Appellate Procedure
governs the issuance of extraordinary writs. The perti-
nent text of F.R. App. P. 21(b)” evidences that two
responses to a petition for a writ of mandamus were
contemplated by the

be that a decision in this Court favorable to Petitioners would in
some manner “inevitably result in a reversible judgment in the
district court in Maryland,” Brief in Opp. p.15, as “[t}he Fourth
Circuit would inevitably . . . and in all likelihood be required to
reverse the judgment.” Brief in Opp. p.16. Respondent’s argu-
ment rests on the incorrect assumption that venue is improper in
the District of Maryland; however, under the facts of this case,
the transfer order was entered to prevent a useless trial in the
improperly chosen forum of the plaintiff.

The United States District Court for the District of Maryland
is the proper forum for this litigation as Maryland is, inter alia,
the situs of the accident (App. Pet. M. p.3la), hence, the
judicial district where the claim arose, 28 U.S.C. § 1391(a),
the residence of the executor of the decedent’s estate (App. Pet.
M.p.28a) and the home of the treating physicians and most of
the witnesses (App. Pet. T.). Moreover, the owner of the
automobile involved in the collision is a Maryland corporation
(App. Pet. T. p.77a) and the vehicle is presently located in
Maryland (App. Pet. T.p.79a). Since the defendants are no less
amenable to suit in Maryland under Mary land's !ong-arm stat-
ute, Md. Ann. Code Cts. & Jud. Proc. Art. §6-103(b), than in
the District of Columbia, Maryland is the district where this
case initially could and should have been brought. (App. Pet.
U).

The United States District Court for the District of Columbia
is an improper forum for this action under 28 U.S.C. § 1391(c),
13 D.C. Code Ann. § 423 (1981 ed.) and World-Wide Volks-
wagen Corp. v. Woodson, 444 U.S. 286 (1980). Neither the
Petitioners or Respondent Lohr & Bromkamp GmbH (Lohr) is
“incorporated or licensed to do business or is doing business,”
28 U.S.C. § 1391(c), within the District of Columbia. (App.
Pet. O, O. R. S). Respondent has simply urged that his dece-
cents unilateral activities within the District of Columbia are
sufficient to confer in personam jurisdiction over the Petitioners
and that those unilateral activities ipso facto create proper venue

in the District of Columbia. This view of the Respondent is
directly in conflict with Mosley v. Nationwide Purchasing,
Inc., 485 F. 2d 418 (Temp. Em Ct. App. D.C. 1973), where the
court noted that the two “doing business” tests were not equiva-
lents and that a plaintiff could not rely on his own activities to
establish jurisdiction and venue.

Since venue is proper in the United States District Court for
the District of Maryland and improper in the District of Col-
umbia, review by this Court will prevent a useless trial and will
allow this Court to delineate the situations in which mandamus
is available to review transfer orders between district courts of
different circuits.

he court in Mosley further observed that “[vjenue was laid in the
“wrong district’ and transfer in the interests of justice under [28 U.S. C.]
section 1406(a) was within the discretion of the trial court.” 485 F.2d at 421.
Respondent Grove herein would thus have this Court sanction mandamus as
a means of compelling the discretion of the trial court in his favor which is
not permitted. Wilbur v. United States, 281 U.S. 206, 218 (1929).

9

CONCLUSION

For the reasons stated above and in the Petition for a Writ of
Certiorari, the Writ of Certiorari should issue, the Writ of
Mandamus should be vacated and the order of the district court
transferring this case to the United States District Court for the
District of Maryland should be reinstated.

Respectfully submitted,

LEONARD L. LIPSHULTZ
Counsel of Record

JOHN LLEWELLYN HONE
LIPSHULTZ and HONE, CHARTERED
Suite 702-Paramount Building
1735 Eye Street, N.W.
Washington, D.C. 20006
872-0909

Counsel of Record for Petitioners
BMW of North America, Inc. and
Bayerische Motoren Werke A.G.

APPENDIX

IN THE

UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

NO. 81-1482

IN RE DANIEL G. GROVE,
Executor of the Estate
of Stuart Stiller,

Petitioner.

Respondent’s Joint Motion
To Set Aside Order Issuing Writ
Of Mandamus, Petition For Hearing

And/Or Suggestion For Hearing En Banc

LEONARD L. LIPSHULTZ

JOHN LLEWELLYN HONE
LiPSHULTZ AND HONE, CHARTERED
Suite 108-Montgomery Center
8630 Fenton Street

Silver Spring, Maryland 20910
(301) 587-8500

Attorneys for Respondents
Bayerische Motoren Werke A.G.
and BMW of North America, Inc.

JOHN JUDE O’ DONNELL

810 American Security Building
730 15th Street, N.W.
Washington, D.C. 20005

(202) 628-2244

Attorney for Respondent
Fishman BMW, Inc.

2a

JOHN J. MCGRATH, JR.

DANIEL BUKOVAC

DONOVAN LEISURE NEWTON & IRVINE «
Suite 1200

1850 K Street, N.W.

Washington, D.C. 20006

(202) 862-4700

VERNON E. VIG

DONOVAN LEISURE NEWTON & IRVINE
30 Rockefeller Plaza

New York, New York 10112

(212) 489-4100

Attorneys for Respondent
Lohr and Bromkamp GMBH

3a

Concise Statement Of
Issues And Their Importance

The Respondents, Heishman BMW, Inc., BMW of North Amer-
ica, Bayerische Motoren Werke A.G. and Lohr & Bromkamp
GMBH, respectfully petition this Court to set aside its Order of July
2, 1981, issuing the Writ of Mandamus vacating the Order of the U.S.
District Court which transferred this case to the District of Maryland
and to allow the Respondents the opportunity to present oral argu-
ment and, if requested, to file briefs on the issues of venue and
jurisdiction, for the following reasons:

1. This Court has failed to comply with the Federal Rules of
Appellate Procedure and the local rules of this Court.

2. This Court has ruled on an issue not before the Court.

3. The Order of July 2, 1981 issued by this Court is contrary to
the law as dictated by the Supreme Court of the United
States.

Argument
I.

The Court Has Failed To
Comply With The Federal
Rules Of Appellate Procedure
And The Local Rules Of This Court

On May 4, 1981, the Petition for Writ of Mandamus was filed. On
May 27, 1981, this Court issued an Order that responses to the
Petition be filed. Respondents timely filed their Responses. There-
after, without notice or opportunity for oral argument being given to
the Respondents, this Court ordered that the Writ of Mandamus issue.
The rules of this Court require both that notice of the date of oral
argument be given to the parties and that oral argument be allowed
unless notice is given that oral argument will not be needed.

When this Court issued its Order of May 27, 1981, the require-
ments of Federal Rule of Appellate Procedure 21(b) came into force.
When it is determined that responses to a petition for writ of man-
damus are to be filed, then Rule 21 requires, inter alia, the following:
“The clerk shall advise the parties of the dates on which briefs are to

4a

be filed, if briefs are required, and of the date of oral argument.”
These Respondents have never been notified by the Clerk of a date for
oral argument. Nevertheless, this Court ruled on the petition without
any hearing.

In order for this Court to grant a petition for a writ of mandamus
without oral argument, it must first comply with Federal Rule of
Appellate Procedure 34 and with Local Rule IId). These rules set
forth the criteria and requirements for disposing of a case without oral
argumert. The following guidelines must first be complied with:

1. The determination that oral argument is not needed must
unanimously be made by a three-judge division.

2. Notice must be given to the parties by the Clerk that such a
determination has been made.

Only after both the determination and notice of the determination may
the Court then proceed to dispose of this case.

However, this Court’s Order of July 2, 1981, was issued without
either of the above two requirements being met. First, the Order was
not unanimously issued by a three-judge panel. Judge McGowan did
not participate in the Order. Secondly, the Court proceeded to grant
the petition without notice to the parties that it would do so without
oral argument.

The Court Has Ruled On
An Issue Not Before The Court

The use of mandamus in this case by the U.S. Court of Appeals for
the District of Columbia Circuit and the basis for the ruling as
contained in the Court’s Order of July 2, 1981 demonstrates a classic
example of why this extraordinary writ does not lie in this situation.
The Court has utilized, as a portion of its reasoning and basis for its
Order, the finding of the U.S. District Court for the District of
Columbia on the issue of in personam jurisdiction. That finding of the
District Court is taken as correct by this Court without any aspect of
the underlying facts and circumstances, as considered by the District
Court, being reviewed. Appropriately, that issue was not briefed or

Sa

argued because it would amount to an appeal from an interlocutory
Order, reviewable only on appeal at the conclusion of the case. In
essence, this Court’s determination that mandamus is the appropriate
remedy allows a piece meal appeal which is never favored. In Bank-
ers Life & Casualty Co. v. Holland, 346 U.S. 379 (1953) the
Supreme Court of the United States stated:

If we applied the reasoning advanced by the petitioner, then
every interlocutory order which is wrong might be reviewed
under the All Writs Act. “The office of a writ of mandamus
would be enlarged to actually control the decision of the trial
court rather than used in its traditional function of confining a
court to its prescribed jurisdiction. In strictly circumscribing
ce eae (28 U.S.C. §§ 1291, 1292) Congress must
ve realized that in the course of judicial decision some inter-
locutory orders might be erroneous. The supplementary review
power conferred on the courts by Congress in the All Writs Actis
meant to be used only in the exceptional case where there is clear
abuse of discretion or “usurpation of judicial power” of the sort
held to justify the writ in De Beers Consolidated Mines v. United
aa — 212, 217 (1945). This is not such a case. 346
S. at .

It could be argued on subsequent appeal that this Court’s Order of
July 2, 1981 issuing the Writ of Mandamus has in effect affirmed the
District Court’s Memorandum Opinion of February 27, 1981 which
found in personam jurisdiction over the Respondents. However, that
Memorandum Opinion was not before this Court for review, and thus
its utilization in the issuance of the Order of July 2, 1981 was
improper. Moreover, the respondents consider that ruling by the
District Court to be erroneous.

By way of example of some of the facts which were before the
District Court the Respondents refer the Court to the unopposed
affidavit of Herman Marten, the managing director of Lohr & Brom-
kamp GMBH, attached hereto as Exhibit A and to the affidavit of Jost
J. Schmitt which was previously filed as Exhibit 21 accompanying
the Response to the Petition for a Writ of Mandamus filed by Bayeris-
che Motoren Werke A.G. and BMW of North America, Inc. These
affidavits address the criteria set forth in the case of international
Shoe v. Washington, 326 U.S. 310 (1945) and demonstrate the lack
of constitutional requirements necessary to invoke in personam juris-
diction.

6a

Additionally, it should be noted that the accident giving rise to this
litigation occurred in the State of Maryland, and therefore the iaw of
that state would govern the wrongful death and survival claims of the
petitioner.

The Order Of July 2, 1981 Issued
By This Court Is Contrary To The Law As
Dictated By The Supreme Court Of The United States

The Order of this Court by Judge Tamm and Judge Edwards, which
was issued “Per Curiam,” without participation by Judge McGowan,
vacated the lower Court’s Order transferring this case to the United
States District Court for the District of Maryland, holding that a Writ
of Mandamus was the appropriate remedy in that:

“In this case the district court’s finding of improper venue in the
District of Columbia would evade review absent the remedy of
mandamus. The district court found that the defendants were
doing business’ in the District of Columbia under the standards
of International Shoe v. Washington, supra, and under 13 D.C.
Code § 423(a)(1). The defendants were, therefore, ‘doing busi-
ness’ in the District of Columbia for purposes of venue under 28
U.S.C. § 1391(c).”

This Court also found that the Supreme Court's ruling in Bankers
Life & Casualty Co. v. Holland, supra was not dispositive of the issue
of venue as presented in this case. In doing so, this Court, in support
of its Order, set forth the following statement of obiter dictum:

“whatever ‘judicial inconvenience and hardship’ [existed
would] remain, after transfer, within the realm of the same court
of appeals which had denied the writ, since both of the districts
were within that circuit. Id. at 384.

In Banker’ s Life and Casualty Co. v. Holland, supra the Supreme
Court held that mandamus is not an appropriate remedy to vacate a
severance and transfer order entered by a district court judge on the
ground of improper venue under 28 U.S.C. § 1406(a). In that case,
the district court had first determined that it had jurisdiction of the
cause under 28 U.S.C. § 1391. With that finding as its starting point,

7a

the district court decided that venue was improper and under the
identical statute invoked herein transferred the case to another dis-
trict. The Petitioner, Bankers Life and Casualty Company, sought to
vacate the transfer order via a writ of mandamus directed to the trial
judge. The Supreme Court affirmed the denial of the Writ of Man-
damus holding that such a writ against a federal district court judge
was not the appropriate remedy to vacate a transfer order posed on the
ground of improper venue under 28 U.S.C. 1406(a).

This Court finds that mandamus lies in this case, in spite of Bankers
Life & Casualty Co. v. Holland, supra, because it believes review of
this issue of venue would be evaded if this case were transferred. In
fact, the issue could be reviewed, but by the U.S. Court of Appeals
for the Fourth Circuit and not this Court, just as all the other issues
would be. Under this Court’s finding, each transfer of federal litiga-
tion to a different circuit would be reviewable by mandamus. Howev-
er, as Judge Leonard Hand observed, the power to protect jurisdiction
by mandamus does not extend to protecting it against the jurisdiction
of another federal appeals court. Magnetic Engineering & Manufac-
turing Co. v. Dings Manufacturing Co., 178 F.2d 866, 869 (2d Cir.
1950). Thus, there is simply no basis for issuance of a writ in this
case.

8a

Conclusion

For the reasons stated above, this Court should grant Respondent's
Request.

Respectfully submitted,

/s/ LEONARD L. LiPSHULTZ
Leonard L. Lipshultz
John Llewellyn Hone
LIPSHULTZ AND HONE, CHARTERED
Suite 108 Montgomery Center
8630 Fenton Street
Silver Spring, Maryland 20910
(301) 587-8500
Attorneys for Respondents
Bayerische Motoren Werke A.G.

/s/ JouN JuDE O DONNELL
John Jude O’ Donnell
810 American Security Building
730 15th Street, N.W.
Washington, D.C. 20005
(202) 628-2244
Attorney for Respondent
Heishman BMW, Inc.

/s/ JohN J. McGratu, Jr.
John J. McGrath, Jr.
Daniei Bukovac
DONOVAN LEISURE NEWTON & IRVINE
Suite 1200 1850 K Street, N.W.
Washington, D.C. 20006
(202) 862-4700

9a

Exhibit A
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Civil Action No. 80-1012

DanieEL G. GROVE,
Executor of the Estate
of Stuart Stiller,
Plaintiff,
V.

HEISHMAN BMW, Inc; BMW oF
NORTH AMERICA, INC.; BAYERISCHE

Mororen WERKE A. G.; AND Loner &

Bromkamp GmbH.
Defendants.

Affidavit In Support Of Motion To Dismiss
Of Defendant Lohr & Bromkamp GmbH.

Hermann Marten being duly sworn, deposes and says:

1. I am the Managing Director (“Geschaftsfuhrer”) of Lohr &
Bromkamp GmbH (“Lobro”), a defendant in this action, and make
this affidavit in support of Lobro’s motion to dismiss for lack of
jurisdiction over its person.

2. Ihave been Managing Director of Lobro since 1974, and have
held various other positions with the Company since joining it in
1953. In my present position, I am generally responsible for all
Company affairs, including the sales and distribution of all Lobro’s
products. I make this affidavit based on personal knowledge gained
during my tenure at Lobro.

3. Lobro is a corporation organized under the laws of the Federal
Republic of Germany, with its sole place of business in Offenbach am
Main, Federal Republic of Germany.

10a

4. Lobro does not have and has never had an office or other place of
business anywhere in the United States of America.

5. Lobro does not have and has never had any employees in the
United States.

6. Lobro does not and has never owned, possessed, used or had an
interest in any real property in the United States, nor does it have any
other assets of any kind there.

7. Lobro does not have and has never transacted any business, nor
contracted to supply or perform any character of work or services,
anywhere in the United States.

8. Lobro has never contracted to insure or act as surety for or on any

person, property, or risk, contract, obligation, or agreement located,
executed, or to be performed within the United States.

9. Lobro is completely independent from and has absolutely no
control over any of the activities of Bayerische Motoren Werke AG
(“BMW”) or any of the other defendants in this action; neither BMW
nor any of the other defendants perform any activities on behalf of
Lobro or act as agents for Lobro.

10. Lobro manufactures all of its products at its plants located at
Offenbach am Main, Federal Republic of Germany. Lobro’s princip-
al products are constant velocity joints for use in automobiles with
11. Lobro sells virtually all of its products directly to automobile
manufacturers located in the Federal Republic of Germany or else-
where in Europe, including BMW. Lobro does not and has never sold
its products to any automobile manufacturers located in the United
States.

12. All of Lobro’s sales to BMW take place in the Federal Republic
of Germany and are final. Lobro relinquishes title and all control of its
products when it delivers those products to BMW. Such sales are
governed by the laws of Germany.

13. Lobro has no control over the method of installation of its
products into automobiles by BMW or any other manufacturers or

lla

over the selection of those types or models of automobiles into which
its products are installed. Lobro has no control over the sales, dis-
tribution or exportation from the Federal Republic of Germany of
automobiles into which its products are installed, nor over the subse-
quent servicing of such automobiles.

14. Lobro’s constant velocity joints are sold to BMW and other
European automobile manufacturers at prices ranging from approx-
imately DM 56 to DM 72 (roughly $33 - $42.50 at an exchange rate of
1.7 DM per Dollar) and thus represent a minor fraction (well under
1%) of the selling price of a BMW automobile.

15. Iam unable to quantify exactly the amount of revenue Lobro
derives from sales of its products to BMW and other European
manufacturers which are incorporated in automobiles which such
manufacturers eventually might export to the United States. Howev-
er, based on information obtained from automobile manufacturers as
to the approximate percentage of their production which each exports
to the United States, I would estimate that Lobro’s total annual
revenue from such sales would not exceed DM 24 million (roughly
$14 million). That would represent less than 10% of Lobro’s annual
sales of approximately DM 300 million. I am unable to estimate the
amount of revenue which Lobro possibly could be considered to
derive indirectly as the result of the eventual use in either Maryland or
the District of Columbia of BMW or other automobiles containing its
products, but it surely would be a small amount.

16. Lobro employs no salesmen or sales agents anywhere in the
United States and does not actively solicit any business there. It does
receive orders on an irregular basis from certain independent distribu-
tors of automobile parts located in the United States. All sales made in
response to such orders, are made FOB German ports, with title
passing to the purchaser in Germany. To the best of my knowledge,
no such shipments are made to purchasers located in either Maryland
or the District of Columbia. Lobro has no information as to the
subsequent distribution of its products by such purchasers, and I do
not know whether any of these products eventually find their way into
either Maryland or the District of Columbia. The total volume of
Lobro’s export sales to United States purchasers in any year would
not exceed DM 5 million, or less than 2% of Lobro’s total sales.

12a

17, Lobro has never been a party in any administrative or judicial
proceeding in the United States. While I am aware that a limited
percentage of our products eventually may find their way to the
United States, as indicated above, Lobro carries on no activity what-
soever there and, to the best of my knowledge, it does not avail itself
of any of the privileges or benefits of United States law. | quite
frankly had never expected that Lobro, which conducts all of its
business and makes all of its sales in Germany, could be called into
court in the United States.

/s/ HERMANN MARTEN
Hermann Marten

13a

Certificate Of Service

I hereby certify that a copy of the foregoing Joint Motion of
Respondents was mailed postage prepaid this 16th day of July, 1981
to the Honorable June L. Green, Judge, United States District Court
for the District of Columbia, Washington, D.C., David N. Webster,
Esquire, Paul Martin Wolff, Esquire, Kevin T. Baine, Esquire,
Williams and Connolly, 839 17th Street, N.W., Hill Building,
Washington, D.C. 20006.

/s/ LEONARD L. LiIPSHULTZ
Leonard L. Lipshultz

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_0651%3A0. Public record. Not legal advice.