Petition — Costantini v. Trans World Airlines, Inc.

82-686

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1982

No.

A.V. COSTANTINI,

dba UNITED TRAVEL SERVICE,

dba WARDS TRAVEL SERVICE,

Petitioner,

v.

TRANS WORLD AIRLINES, INC..

DOES I THROUGH XC.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

A.V. COSTANTINI

565 John Daly Blvd.

Daly City, Ca 94015

(415) 991-4907

In Propria Persona

i

QUESTIONS PRESENTED

1. Whether the court in dismissing

the action viewed the material facts in

the light most favorable to the party

opposing a motion to dismiss.

2. Whether the existence of

fraudulent concealment precludes the

application of the doctrine of res

judicata.

J. Whether the party moving to

dismiss an action, and the court, are

required to abide by the Rules of the

Court requiring affidavits or

declarations to support factual

representations.

ii

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED i

TABLE OF AUTHORITIES iii

OPINIONS BELOW

JURISDICTION

2

3

STATUTES INVOLVED (RULES OF COURT) 3

STATEMENT 4

4

A. The Facts

B. Proceedings Below 11

REASONS FOR GRANTING THE WRIT 13

CONCLUSION 19

APPENDIX A Al

APPENDIX B Bl

APPENDIX C Cl

iii

TABLE OF AUTHORITIES

CASES

Adickes v. kress d Co.,

398 U.S. 144

Anderson v. Yungkau,

329 U.S. 482

First National Bank of Arizona

v. City Services Co. 391 U.S. 253

Magee v. Manhatten Life Insurance

Co. 92 U.S. 93

Rio Grande Irrigation §

Colonization Co. v. Gildersleeve,

174 U.S. 603

Securities d Exchange Com. v.

Capital Gains Research Bureau,

Inc., 375 U.S. 180

RULES OF COURT

United States District Court of

the Northern District of

California Local Rules-

-Rule 220-2

Rule 220-8

Page

14

19

14

15

18

16

17

17

IN THE

SUPREME COURT OF THE UNITED STATES

October Tern, 1982

No.

A.V. COSTANTINI, etc.

Petitioner,

Vv.

TRANS WORLD AIRLINES, INC.,

DOES I through XxC,

Respondents.

— —

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

A.V. Costantini, plaintiff and

petitioner in the proceedings below,

repectfully petitions for a writ of

certiorari to review the judgment of

the United States Court of Appeals for

the Ninth Circuit in this case.

OPINIONS BELOW

1. Order of the United States Court

of Appeals for the Ninth Circuit dated

July 22, 1982 affirming the judgment of

the United States District Court for the

Northern District of California dismiss-

ing plaintiff's complaint as barred by

res judicata. (Appendix at Al)

(not officially reported)

2. Order of the United States

District Court for the Northern District

of California dismissing plaintiff's

complaint as barred under the doctrine

of res judicata. (Appendix at Bl)

(not officially reported)

JURISDICTION

The judgment of the court of Appeals

was entered on July 22, 1982 (Appendix

at Al).

This Court's jurisdiction is

invoked under 28 U.S.C. Section 1254(1).

STATUTES INVOLVED

(RULES OF COURT)

United States District Court of the

Northern District of California Local

Rules 220-2 and 220-8.

STATEMENT

A. The Facts

A.V. Costantini ("Dr. Cos tant ini“)

entered into the travel agency business

in 1963 and during the ensuing decade

opened branch offices in a number of

the shopping centers located in the San

Francisco Bay Area. In order to be able

to issue interstate and international

airline tickets, each newly opened travel

office required separate approval by the

Air Transport Association of America

(ATC) and the International Air Transport

Association (IATA). Each newly opened

office required the employment of an

experienced manager and certification

that the ownership of the branch office

was the same as that of the home office.

In 1972, Dr. Costantini began a

nationwide expansion into the 475 Mont-

gomery Ward stores by establishing travel

offices under the name of Wards Travel

Service. The first Wards Travel Service

office was opened and secured approvals

from ATC and IATA. In March 1973, a

second Ward branch office was opened, and

shortly thereafter a third. ATC refused

to approve these offices claiming that

the managers lacked experience but ATC's

reasons were overshadowed by its simul-

taneous written representation that the

airline industry was being placed in a

position of serious jeopardy as a result

of Dr. Costantini's plan for establishing

travel agencies in the Montgomery Ward

stores. IATA failed to advise appellant

as to any reason it was employing in its

failure to approve these offices. ATC and

IATA are mandated to provide applicants

with all reasons for not approving a

branch office pursuant to the provisions

of Civil Aeronautics Board Orders No. E-

14012, June 10, 1969 and No E-16459,

dated March 1, 1961; such that the appli-

cant may correct deficiencies in order to

be approved.

The conflict was aggravated on March

27, 1973, when a TWA representative in-

formed one of Dr. Costantini's branch

office managers that ATC was never going

to approve any of the pending branch

offices and that the manager should sever

his relationship with Dr. Costantini and

seek employment elsewhere.

On April 18, 1973, Dr Costantini, in

his capacity as an appointed TWA agent,

wrote to his principal, TWA, demanding

that TWA provide any information it had

in its possession upon which TWA knew

that ATC would never approve the newly

opened offices. TWA's response was that

Dr. Costantini was charged with selling

illegal airline tickets and that the

office managers lacked experience. ATC

and IATA had not given Dr. Costantini

notice that the reason they were not ap-

proving the newly opened offices was that

he was charged with selling illegal air-

line tickets. Dr. Costantini has never

sold illegal tickets nor has he ever been

charged of doing so. And, if the newly

opened offices lacked experienced manag-

ers at the time they were being inspected

by ATC and IATA, it was due to TWA caus-

ing these managers to quit working due to

the fear created by TWA that they were

engaged in the sale of illegal airline

tickets.

As TWA's agent in the fiduciary

relationship which existed between TWA

and Dr. Costantini, Dr. Costantini relied

upon TWA‘'s representation that all of the

information in its possession had been

turned over to him. There was no rational

reason to suspect that TWA, as Dr.

Costantini's principal, would falsify its

representations being made to him. Even if

suspicion were to have existed, it would

have been dispelled by the fact that

discovery procedures (ATC and TWA induced

Dr. Costantini to dismiss his initial

action against them [C 74 0365 SAW] dy

indicating that Dr. Costantini would be

provided discovery as part of an attempt

to resolve the controversy through an

arbitrational tribunal), failed to elicit

the key documents upon which the present

action is based. It was represented that

ATC provide Dr. Costantini with all of

the documents in their possession relative

to why ATC was not approving the branch

offices being located in the Montgomery

Ward Stores. Dr. Costantini's attorney

traveled to ATC's offices in Washington,

D.C. where he deposed ATC officers and

employees and obtained "all" of the

documents ATC represented that it had in

its possession. The key documents upon

which this action is based were not among

those documents. The document surfaced

when the Civil Aeronautics Board's invest-

igators made an unannounced investigatory

visit to ATC offices and proceeded to

copy the entire United Travel Service

files maintained by ATC. It was only when

Dr. Costantini exercised his rights under

the Freedom of Information Act that the

very existence of the secretive and false

communication from TWA to ATC was first

learned. What TWA, and ATC, had failed to

disclose to Dr. Costantini and his

attorney was that TWA had written to the

Civil Aeronautics Board and to ATC that

Dr. Costantini was not the true owner of

his branch offices and that these offices

were owned by the branch manager:

the fact that he has been requesting

approval of his agency locations as

branches..but is reported to be sell-

ing the branches as franchises and a

a percentage of the profits.”

10

Dr. Costantini has never sold his

branches as franchises and the ownership

of his branches was at all times the same

as that of the parent office.

As a result of TWA's falsifications

before the Civil Aeronautics Board, that

Board terminated its investigation of

TWA relative to the conflict.

As a result of TWA's false represent-

ations to ATC, Dr. Costantini was effect-

ively prevented from expanding into the

475 Montgomery Ward Stores nationwide.

As a result of TWA's fraudulent

concealment of the lies it was secretive-

ly spreading regarding Dr. Costantini was

unable to prevail in prior litigation.

The fact that TWA and Dr. Costantini

were in direct competition with each other

in the sale of air transportation and

related services cannot be overlooked.

If Dr. Costantini had not exercised

11

his right under the Freedom of Information

Act, none of the above fraud would have

been discovered.

B. Proceedings Below

Following the discovery of the

existence of fraudulently concealed

documents indicating that TWA had made

false statements resulting in the loss of

the Montgomery Ward License Agreement,

Dr. Costantini filed the instant complaint

alleging unfair interference by TWA with

Dr. Costantini's business relationship

with ATC and IATA. The original complaint

was filed on February 8, 1980 and amended,

as a matter of course,on February 25,1980;

the amended complaint setting forth all

of the necessary facts required to

demonstrate to the court that TWA had

fraudulently concealed the material facts

upon which the complaint was based.

12

On April 16, 1980, the district court

granted TWA' motion to dismiss pursuant to

Rule 12(b)(6) of the Federal Rules of

Civil Procedure on the grounds that the

action was barred by the doctrine of res

judicata. TWA's motion was not accompani-

ed by affidavits or declarations as are

required by the rules of the court.

(Appendix at 31)

Dr. Costantini filed his notice of

appeal on May 13, 1980 in the United

States Court of Appeals for the Ninth

Circuit.

On July 22, 1982, the Court of

Appeals for the Ninth Circuit affirmed

the district court's judgment dismissing

Dr. Costantini's complaint as barred by

res judicata. (Appendix at Al)

13

REASONS FOR GRANTING WRIT

I. THE DECISION BELOW CONFLICTS WITH THE

PRINCIPLE SET OUT IN THE ADICKES CASE,

AND OTHER CASES IN THIS COURT. THAT

MATERIAL FACTS MUST BE VIEWED IN THE

LIGHT MOST FAVORABLE TO THE OPPOSING

PARTY

The material fact in this case is

that Trans World Airlines, Inc., as the

principal in the fiduciary relationship

existing with its agent, A.V. Costantini,

falsified the representations which were

made to A.V. Costantini. The key evidence

was concealed during earlier discovery

procedures and was only recently discover-

ed when non-public investigatory files of

the Civil Aeronautics Board were obtained

pursuant to palintiff's Freedom of Inform-

ation Requests.

As the moving party, Trans World

Airlines, Inc. had the burden of showing

the absence of a genuine issue as to the

material facts and when it failed to do

so, the court erred in dismissing the

14

complaint. The materials lodged must be

viewed in the light most favorable to the

party opposing the motion to dismiss.

Adickes v Kress f Co., 398 U.S. 144, 157.

The only burden shouldered by the

party opposing summary judgment is to

adduce specific facts which present an

issue worthy of trial to resolve the

parties differing versions of the truth.

First National Bank of Arizona v. Cities

Service Co., 391 U.S. 253, 288-289.

II. THE DECISION BELOW CONFLICTS WITH

THE PRINCIPAL SET OUT IN THE MAGEE

CASE, AND OTHER CASES IN THIS COURT,

THAT FRAUDULENT CONCEALMENT OCCURS

WHEN A PARTY SUPPRESSES SOMETHING

WHICH IT IS BOUND TO DISCLOSE

The proceedings below ignored the

fact that a fiduciary relationship existed

between Trans World Airlines, Inc., and

A.V. Costantini. As Trans World Airlines'

agent, A.V. Costantini relied upon his

principal's representation that all of

15

the facts had been provided to him. The

truth of the matter, as A.V. Costantini

recently learned through his Freedom of

Information Request of confidential Civil

Aeronautics Board records, is that Trans

World Airlines wilfully and intentionally

concealed material facts in its possession

which were not only injurious to him but

would have resulted in a judgment in his

favor during the prior litigation. This

Court has addressed this issue on at least

three prior occasions:

a concealment must, in order to be

fraudulent, be wilful and intentional

and a suppression of something which

the party is bound to disclose, Magee

vy. Manhatten Life Insurance Co. 92 U.S.

93;

the suppression of a material fact

which a party is bound in good faith

to disclose is equivalent to a false

16

representation, Tyler v. Savage, 143

U.S. 79;

fraud, in the sense of a court od

equity, properly includes all acts,

omissions, and concealments which

involve a breach of legal or equitable

duty, trust, or confidence, justly

reposed, and are injurious to another,

or by which an undue and unconscient-

ious advantage is taken of another,

Securities 4 Exchange Com. v. Capital

Gains Research Bureau, Inc., 375 U.S.

180.

III. THE DECISION BELOW CONFLICTS WITH

THE PRINCIPLE SET OUT IN THE RIO

-CBANDE CASE THAT A DULY AUTHORTZED

ULE OF THE COURT IS BINDING UPON

THE COURT AND THE PARTIES.

In the proceeding below, the court

did not abide by its own rules requiring

Trans World Airlines to submit affidavits

or declarations in support of the factual

representations made in its motion to

17

dismiss A.V. Costantini's complaint.

Local Rule 220-2 of the United States

District Court of the Northern District

of California, then in effect, is clear:

“Each notice of motion shall be

accompanied by affidavits or declarations

under penalty of perjury..."

Local Rule 220-8 of the same court,

then in effect, mandates:

"Factual contentions made in support

of any motion shall be supported by

affidavits or declarations."

The notice of motion and motion to

dismiss of Trans World Airlines, Inc.,

were unsupported by the required

affidavits or declarations. Most of the

factual representations made by Trans

- World Airlines were simply false and

could not be supported by affidavit or

declaration without Trans World Airlines

incurring the penalties of perjury. The

18

rational for the existence of rules of

the court requiring affidavits and

declarations is to insure that the court

is presented truth and not the type of

false statements made by Trans World

Airlines, Inc.'s counsel in obtaining

judgment in favor of his client at the

expense of the plaintiff in this case.

Truth is the only basis upon which finai

judgments shoud be based.

A duly authorized rule of the court

has the force of law, and is binding upon

the court as well as upen the parties to

an action, and cannot be dispensed with

the particular circumstanses of any

particular case. Rio Grande Irrigation

and Colonization Co. v. Gildersleeve,

174 U.S. 603. In this case, the Local

Rules of the Court mandates that notice

of motion and motions shall be accompanied

by affidavits or declarations. The word

19

"shall" is ordinarily the language of

command; and when a Federal Rule of Civil

Procedure uses both "may" and "shall" the

normal inference is that each term is used

in its usual sense-the one act being

permissive, the other mandatory. Anderson

v.Yungkau, 329 U.S. 482.

CONCLUSION

For the reasons stated, a writ of

certiorari should issue to review the

judgment of the Court of Appeals for

the Ninth Circuit.

Respectfully submitted,

A.V. Costantini

In Propria Persona

565 Jo Daly Blvd

Daly City, Ca 94015

October 18, 1982 (415) 991-4907