Appendix — Chevron Chemical Co. v. Gilmore
Supreme Court brief1983
Ask Donna
What actually matters in this document.
Text
Office Supreme Court, U.S.
5 2, 2
82-1486
MAR 7 1983
ALSX ANDER L. STEVAS,
IN THE
Supreme Court of the United States
OCTOBER TERM, 1982
NO.
a
CHEVRON CHEMICAL COMPANY, A Delaware Corporation,
Petitioner,
vs.
HON. HORACE W. GILMORE, United States District Court Judge
for the Eastern District of Michigan,
Respondent.
ee
APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
SIXTH CIRCUIT OR IN THE ALTERNATIVE,
PETITION FOR WRIT OF MANDAMUS
—_
BUSHNELL, GAGE, DOCTOROFF & REIZEN
GEORGE E. BUSHNELL, JR. (P11472)
(Counsel of Record)
NOEL A. GAGE (P13786)
CARL J. MARLINGA (P17102)
JOHN K. PARKER (P29563)
3000 Town Center, Suite 1500
Southfield, Michigan 48075
(313) 444-4848
I
APPENDIX
TO PETITION FOR WRIT OF CERTIORARI OR IN
THE ALTERNATIVE, PETITION FOR WRIT OF
MANDAMUS
Table of Contents
Page
Opinions and Orders of Courts Below
Order of the United States Court of Appeals for the
gh | 6 PeTPeTerrr Tre rrrreer re re eT Ter rer la-2a
Order of Remand entered by Respondent Judge of the
United States District Court for the Eastern District
vhs Sen we suns hour bskeceresceehoees 3a
Transcript of Proceedings of District Court ......... 4a-ba
Constitutional Provisions, Statutes and Rules
Sie UNI ANE BEL OD cbncveneboasecencvens 6a
Sia SENET Oe EEEL OO betvsenpdovcceserones 6a-Ta
US. Constitution Amendment V..........00000005 Ta
rr ry Terr ee rere eT re rrr ree Ta-Ra
ht ML FETW Peer EreryereeererraT Tere er Tere 8a-10a
IE ic Fo Uincks aruda cin beeukeasevenes 10a
pe oe cae usc cachigewes 10a-1la
ee aE DG ee ree ee lla
$262 Judicial Code of 1011 ...cccciescecsccccsesees lla
$13 Judiciary Act of 1789 .....cccsccscecscccces lla-l2a
See OR UE SOME pi odin cckeccdccennecieen ed l2a
DP RT ED OF ccc cdedeb bates) nesendcwnaee ne l2a-13a
Be We SE OD cb ccceseesnenencwesnveweesése 13a-l4a
Be A SOE Ae ceed esceceU never cviessbueees l4a
Other Items
Petitioner’s Petition for Writ of Mandamus and State-
ment of Reasons Why the Writ should Issue in the
OE OE RII hic 6h scot i vebesesvevcevccens l4a
Response of Respondent District Court Judge in
Opposition to Petition for Writ of Mandamus in the
See ir IE sooo 506 odes edneaeoeeenens’ 60a-62
I]
Page
(Real) Respondents’ (Plaintiffs’) Opposition to Petition
for Writ of Mandamus with Statement of Relief
Requested in the Court of Appeals ....+++++++++62a-65a
Alternative Petition in this Court for Writ of
Mandamus ..cccccsccccccccccccccccvccescccs GOR
Opinions la
No, 82-8063
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ORDER
(Filed Dee. 10, 1982. John P. Hehman, Clerk)
IN RE: CHEVRON CHEMICAL COMPANY,
Petitioner
BEFORE: MARTIN and KRUPANSKY, Circuit Judges;
and BROWN, Senior Circuit Judge.
The petitioner, a defendant in the removed diversity action
below, seeks a writ of mandamus directing the district court to
vacate its order remanding that action to the state court.
The plaintiffs originally filed this tort action in the Wayne
County (Michigan) Circuit Court naming the petitioner as the
sole defendant. The petitioner (a Delaware corporation) re-
moved the action to the district court on grounds of diversity
of citizenship. After extensive discovery, the plaintiffs moved
to amend their complaint so as to add an additional party
defendant. Because that party was a Michigan corporation,
they also moved for a remand to state court on grounds the
diversity jurisdiction of the district court would be divested.
The district court held a hearing in the matter and granted
both motions. This petition followed.
In Thermtron Products, Inc. v Hermansdorfer, 423 U.S. 336
(1976), the supreme Court held that remand orders based upon
the grounds found in 28 U.S.C. §1447(c), ie. that the case was
removed “improvidently and without jurisdiction,” are “not
subject to challenge in the court of appeals by appeal, by man-
damus, or otherwise.” Jd. at 343. Review via mandamus is
permissible however, if the remand is based on grounds other
than those found in §1447(c).
In this case, the order of remand specifically relied upon the
grounds that the removal had been improvident and that the
2a Opinions
district court no longer had jurisdiction in the matter because
total diversity of citizenship was lacking. The petitioner seeks
to avoid the obvious impact of that language by arguing
variously that (1) the remand order was a “sham” that should
be ignored, (2) the grounds really relied upon the district court
did not fall within the purview of §1447(c), and (3) there are
bases for mandamus review in this action, e.g. denial of due
process, wholly independent of the remand order and which
are not barred by Thermton Products and its progeny.
This Court has carefully examined the petitioner's extensive
memorandum in this matter, the cases cited therein, and the
record of the proceedings below. Upon consideration thereof,
we find that once the non-diverse party was added, remand to
the state courts was properly found upon §1447(¢). Mandamus
review is thus precluded, That is true even if this Court could
conclude, as the petitioner argues, that the non-diverse party
Was erroneously joined in this action. See In Re Merrimack
Mutual Fire Insurance Co. 587 F.2d 642 (Sth Cir. 1978). Cf.
Royal v State Farm Fire and Casualty Co. 685 F.2d 124 (5th
Cir. 1982). Therefore,
It is ORDERED that the petition for a writ of mandamus
be and it hereby is denied.
ENTERED BY ORDER OF THE COURT
/s/ JOHN P. HEHMAN, Clerk
(Title of Court and cause)
(Received December 13, 1982)
December 10, 1982
Mr. John K. Parker
Bushnell, Gage, Doctoroff, Reizen
3000 Town Center, 15th Floor
Southfield, MI 48075
Re: Case No, 82-8063 In Re: Chevron Chemical Co. District
Court No. 81-70555
Order of Remand 3a
Dear Mr. Parker:
Enclosed is a copy of an order which was entered today in
the above-styled case.
Very truly yours,
John P. Hehman, Clerk
By: /s/ Linda L. Brinson
Deputy Clerk
Enclosure
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Marie E. Munn, e¢ al CIVIL ACTION
Plaintiff(s) NO. 81-70555
vs.
Chevron Chemical Co, et al
Defendant(s)
ORDER OF REMAND
It appearing that the within case was improvidently moved
to the United States District Court for the Eastern District
Michigan, and
It further appearing that there is no Federal jurisdiction the
above-entitled matter, lacking total diversity
IT IS HEREBY ORDERED that this case be remanded to
the Circuit Court for the County of Wayne, Michigan.
/s/
HORACE W. GILMORE
UNITED STATES DISTRICT JUDGE
Dated: September 27, 1982
(Title of Court and Cause)
Clerk,
Wayne County Circuit Court
81-70555
RE: Munn v. Chevron
4a Transcript of Proceedings
Dear Sir:
Pursuant to an order of this Court dated 9/27/82, signed by
the Honorable Horace Gilmore, United States District Judge,
the above entitled action is transferred to your district.
The papers enclosed herewith constitute the entire file in
this case. A certified copy of the Order of Transfer is included
in lieu of the original which is retained for our files. A certified
copy of the docket entries is also enclosed.
Kindly acknowledge receipt on the enclosed copy of this
letter.
Yours truly,
Robert A. Mossing, CLERK
BY: Sandra Ewing-Mendoza
Deputy Clerk
(Title of Court and Cause)
Proceedings had before the Honorable Horace W. Gilmore,
United State District Judge, at Detroit, Michigan, on Thurs-
day, September 23, 1982.
APPEARANCES:
Mr. Robert A. Tyler
Appearing on behalf of Plaintiffs
Mr. Carl J. Marlinga
Appearing on behalf of the Defendant
REPORTED BY:
Elizabeth A. Higdon
Official Court Reporter
(Tr-2)
Detroit, Michigan
Thursday, September 23, 1982
THE COURT: All right, gentlemen, thank you.
The issue is whether I should allow an amendment of the
Complaint to allow the Plaintiff to join Dow Chemical. If I
grant the Amended Complaint, it destroys diversity and the
Transcript of Proceedings da
case will automatically be remanded to the Wayne County
Cireuit Court.
The Defendant strongly objects to allowing the amendment,
claiming the case is worked up, that it is about to go to trial,
that this is a maneuver by the Defendant to get more time for
discovery, to name an expert, that the whole claim against
Dow will be on a hearsay basis, and so forth. He cites as basic
authority Moore on Federal Procedure, Volume 1A, Section
0.161(1) at page 208, where Moore says, in effect, that Courts
should not allow Complaints to be amended by adding an addi-
tional Defendant to destroy diversity unless there are strong
equities in favor of the amendment or unless the party is an
indispensable party. That unless one of those two things is
present, Moore says that Courts should normally deny leave to
(Tr-3)
amend, since on the whole Rule 21, in dropping and adding
parties, looks to the preservation rather than the destruction
of jurisdiction.
Well, I don’t have a great deal of argument with Moore on
this one, but I don’t see how I can say here, however, that the
equities — that there are not strong equities in favor of the
amendment. I don’t know whether Dow Chemical is at all
responsible for this, but certainly, although they may not be an
indispensable party, in using that as a term of art, certainly I
would think they are an indispensable party if there is a claim
that they are responsible for this, a legitimate claim. I certainly
also think that the equities favor allowing such an amendment
so that in one lawsuit a proper factfinder can in due course
make a determination with everyone in front of it. I therefore
will grant the amendment and I will remand the case to the
Wayne County Cireuit Court.
A-78
CERTIFICATE
I, Elizabeth A. Higdon, do hereby certify that I reported
6a Constitutional Provisions
stenographically the proceedings had in the above-entitled
cause before the Honorable Horace W. Gimore, United States
District Judge, at the time and place hereinbefore set forth;
that the same was thereafter reduced to typewritten form
under my supervision; and I do further certify that the fore-
going transcript is a full, true and correct transcript of my
stenographic notes.
ELIZABETH A. HIGDON
Official Court Reporter
Dated: Detroit, Michigan
September , 1982
A-79
U.S. CONSTITUTION
ARTICLE III
SECTION 1. The judicial Power of the United States,
shall be vested in one supreme Court, and in such inferior
Courts as the Congress may from time to time ordain and
establish. The Judges, both of the supreme and inferior Courts,
shall hold their Offices during good Behaviour, and shall, at
stated Times, receive for their Services, a Compensation, which
shall not be diminished during their Continuance in Office.
SECTION 2. The judicial Power shall extend to all Cases,
in Law and Equity, arising under this Constitution, the Laws
of the United States, and Treaties made, or which shall be
made, under their authority; — to all Cases affecting Ambas-
sadors, other public Ministers and Consuls; — to all Cases of
admiralty and maritime Jurisdiction; — to Controversies to
which the United States shall be a Party; — to Controversies
between two or more States; — between a State and Citizens
of another State; — between Citizens of different States; —
between Citizens of the same State claiming Lands under
Grants of different States, and between a State, or the Citizens
thereof, and foreign States, Citizens or Subjects.
Constitutional Provisions Ta
In all Cases affecting Ambassadors, other public Ministers
and Consuls, and those in which a State shall be Party, the
supreme Court shall have original Jurisdiction. In all the other
Cases before mentioned, the supreme Court shall have appel-
late Jurisdiction, both as to Law and Fact, with such Excep-
tions, and under such Regulations as the Congress shall make.
The Trial of all Crimes, except in Cases of Impeachment,
shall be by Jury; and such Trial shall be held in the State
where the said Crimes shall have been committed; but when
not committed within any State, the Trial shall be at such
Place or Places as the Congress may by Law have directed.
AMENDMENT V
No person shall bee .. . deprived of life, liberty, or property,
without due process of law:
STATUTES
28 §1441. Actions removable generally
(a) Except as otherwise expressly provided by Act of Con-
gress, 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 or the defendants, to the
district court of the United States for the district and division
embracing the place where such action is pending.
(b) Any civil action of which the district courts have origi-
nal jurisdiction founded on a claim or right arising under the
Constitution, treaties or laws of the United States shall be
removable without regard to the citizenship or residence of the
parties. Any other such action shall be removable only if none
of the parties in interest properly joined and served as defend-
ants is a citizen of the State in which such action is brought.
(c) Whenever a separate an independent claim or cause of
action, which would be removable if sued upon alone, is joined
with one or more otherwise non-removable claims or causes of
action, the entire case may be removed and the district court
may determine all issues therein, or, in its discretion, may
remand all matters not otherwise within its original jurisdiction.
Sa Constitutional Provisions
(d) Any civil action brought in a State court against a for-
eign state as defined in section 1603(a) of this title may be
removed by the foreign state to the district court of the United
States for the district and division embracing the place where
such action is pending. Upon removal the action shall be tried
by the court without jury. Where removal is based upon this
subsection, the time limitations of section 1446(b) of this chap-
ter may be enlarged at any time for cause shown.
28 §1446. Procedure for removal
(a) A defendant or defendants desiring to remove any civil
action or criminal prosecution from a State court shall file in
the district court of the United States for the district and div-
ision within which such action is pending a verified petition
containing a short and plain statement of the facts which en-
title him or them to removal together with a copy of all pro-
cess, pleadings and orders served upon his or them in such
action.
(b) The petition for removal of a civil action or proceeding
shall be filed within thirty days after the receipt by the
defendant, through service or otherwise, of a copy of the initial
pleading setting forth the claim for relief upon which such
action or proceeding is based, or within thirty days after the
service of summons upon the defendant if such initial pleading
has then been filed in court and is not required to be served on
the defendant, whichever period is shorter.
If the case stated by the initial pleading is not removable, a
petition for removal may be filed within thirty days after
receipt by the defendant, through service or otherwise, of a
copy of an amended pleading, motion, order or other paper
from which it may first be ascertained that the case is one
which is or has become removable. *
(c)(1) A petition for removal of a criminal prosecution shall
be filed not later than thirty days after the arraignment in the
State court, or at any time before trial, whichever is earlier,
except that for good cause shown the United States district
Constitutional Provisions 9a
court may enter an order granting the petitioner leave to file
the petition at a later time.
(2) A petition for removal of a criminal prosecution shall
include all grounds for such removal. A failure to state grounds
which exist at the time of the filing of the petition shall consti-
tute a waiver of such grounds, and a second petition may be
filed only on grounds not existing at the time of the original
petition. For good cause shown, the United States district
court may grant relief from the limitations of this paragraph.
(3) The filing of a petition for removal of a criminal prose-
cution shall not prevent the State court in which such prose-
cution is pending from proceeding further, except that a judg-
ment of conviction shall not be entered unless the petition is
first denied.
(4) The United States district court to which such petition
is directed shall examine the petition promptly. If it clearly
appears on the face of the petition and any exhibits annexed
thereto that the petition for removal should not be granted, the
court shall make an order for its summary dismissal.
(5) If the United States distriet court does not order the
summary dismissal of such petition, it shall order an eviden-
tiary hearing to be held promptly and after such hearing shall
make such disposition of the petition as justice shall require. If
the United States district court determines that such petition
shall be granted, it shall so notify the State court in which
prosecution is pending, which shall proceed no further.
(d) Each petition for removal of a civil action or proceed-
ing, except a petition in behalf of the United States, shall be
accompanied by a bond with good and sufficient surety condi-
tioned that the defendant or defendants will pay all costs and
disbursements incurred by reason of the removal proceedings
should it be determined that the case was not removable or
was improperly removed,
(e) Promptly after the filing of such petition for the remo-
val of a civil action and bond the defendant or defendants shall
10a Constitutional Provisions
give written notice thereof to all adverse parties and shall file a
copy of the petition with the clerk of such State court, which
shall effect the removal and the State court shall proceed not
further unless and until the case is remanded.
(f) Ifthe defendant or defendants are in actual custody on
process issued by the State court, the district court shall issue
its writ of habeas corpus, and the marshal shall thereupon
take such defendant or defendants into his custody and deliver
a copy of the writ to the clerk of such State court,
28 §1447. Procedure after removal generally
(a) In any case removed from a State court, the district
court may issue all necessary orders and process to bring
before it all proper parties whether served by process issued
by the State court or otherwise.
(b) It may require the petitioner to file with its clerk copies
of all records and proceedings in such State court or may cause
the same to be brought before it by writ of certiorari issued to
such State court.
(c) If at any time before final judgment it appears that the
case was removed improvidently and without jurisdiction, the
district court shall remand the case, and may order the pay-
ment of just costs. A certified copy of the order of remand
shall be mailed by its clerk to the clerk of the State court. The
State court may thereupon proceed with such case.
(d) An order remanding a case to the State court from
which it was removed is not reviewable on appeal or other-
wise, except that an order remanding a case to the State court
from which it was removed pursuant to section 1443 of this
title shall be reviewable by appeal or otherwise.
28 §1651. Writs
(a) The Supreme Court and all courts established by Act of
Congress may issue all writs necessary to appropriate in aid of
their respective jurisdictions and agreeable to the usages and
principles of law.
Constitutional Provisions lla
(b) An alternative writ or rule nisi may be issued by a jus-
tice or judge of a court which has jurisdiction,
Judicial Code of 1911 §§234, 262
SEC, 234. The Supreme Court shall have power to issue
writs of prohibition to the district courts, when proceeding as
courts of admiralty and maritime jurisdiction: and writs of
mandamus, in cases warranted by the principles and usages of
law, to any courts appointed under the authority of the United
States, or to persons holding office under the authority of the
United States, where a State, or an ambassador, or other public
minister, or a consul, or vice consul is a party.
SEC, 262, The Supreme Court and the district courts shall
have power to issue writs of scire facias. The Supreme Court,
the circuit courts of appeals, and the district courts shall have
power to issue all writs not specifically provided for by statute,
which may be necessary for the exercise of their respective
jurisdictions, and agreeable to the usages and principles of law.
Judiciary Act of 1789 §§13, 14
SEC, 13. And be it further amended, That the State Court
shall have exclusive jurisdiction of all controversies of a civil
nature, where a state is a party, except between a state and its
citizens; and except also between a state and citizens of other
states, or aliens, in which latter case it shall have original but
not exclusive jurisdiction, And shall have exclusively all such
jurisdiction of suits or proceedings against ambassadors, or
other public ministers, or their domestics, or domestic ser-
vants, as a court of law can have or exercise consistently with
the law of nations; and original, but not exclusive jurisdiction
of all suits brought by ambassadors, or other public ministers,
or in which a consul, or vice consul, shall be a party. And the
trial of issues in fact in the Supreme Court, in all actions at
law against citizens of the United States, shall be by jury. The
Supreme Court shall also have appellate jurisdiction from the
circuit courts and courts of the several states, in the cases
hereinafter specifically provided for; and shall have power to
12a Constitutional Provisions
issue writs of prohibition to the district courts, when proceed-
ing as courts of admiralty and maritime jurisdiction, and writs
of mandamus, in cases warranted by the principles and usages
of law, to any courts appointed, or persons holding office,
under the authority of the United States.
SEC. 14. And be it further enacted, That all the before-
mentioned courts of the United States, shall have power to
issue writs of scire facias, habeas corpus, and all other writs
not specially provided for by statute, which may be necessary
for the exercise of their respective jurisdictions, and agreeable
to the principles and usages of law. And that either of the
justices of the supreme court, as well as judges of the district
courts, shall have power to grant writs of habeas corpus for
the purpose of an inquiry into the cause of commitment. —
Provided, That writs of habeas corpus shall in no case extend
to prisoners in gaol, unless where they are in custody, under or
by colour of the authority of the United States, or are commit-
ted for trial before some court of the same, or are necessary to
be brought into court to testify.
RULES
28 USC Rule 19. Joinder of Persons Needed for Just Adjudi-
cation,
(a) Persons to be Joined if Feasible. A person who is sub-
ject to service of process and whose joinder will not deprive
the court of jurisdiction over the subject matter of the action
shall be joined as a party in the action if (1) in his absence
complete relief cannot be accorded among those already par-
ties, or (2) he claims an interest relating to the subject of the
action and is so situated that the disposition of the action in
his absence may (i) as a practical matter impair or impede his
ability to protect that interest or (ii) leave any of the persons
already parties subject to a substantial risk of incurring dou-
ble, multiple, or otherwise inconsistent obligations by reason of
his claimed interest. If he has not been so joined, the court
shall order that he be made a party. If he should join as a
Constitutional Provisions 13a
plaintiff but refuses to do so, he may be made a defendant or,
in a proper case, an involuntary plaintiff. If the joined party
objects to venue and his joinder would render the venue of the
action improper, he shall be dismissed from the action.
(b) Determination by Court Whenever Joinder not Feas-
ible. If a person as described in subdivision (a)(1)-(2) hereof
cannot be made a party, the court shall determine whether in
equity and good conscience the action should proceed among
the parties before it, or should be dismissed, the absent person
being thus regarded as indispensable. The factors to be consid-
ered by the court include: first, to what extent a judgment
rendered in the person's absence might be prejudicial to him or
those already parties; second, the extent to which, by protec-
tive provisions in the judgment, by the shaping of relief, or
other measures, the prejudice can be lessened or avoided; third,
whether a judgment rendered in the person's absence will be
adequate; fourth, whether the plaintiff will have an adequate
remedy if the action is dismissed for nonjoinder.
(c) Pleading Reasons for Nonjoinder. A pleading asserting
a claim for relief shall state the names, if known to the pleader,
of any persons as described in subdivision (a)(1)-(2) hereof
who are not joined, and the reasons why they are not joined.
(d) Exception of Class Actions. This rule is subject to the
provisions of Rule 23.
28 USC Rule 20. Permissive Joinder of Parties
(a) Permissive Joinder. All persons may join in one action
as plaintiffs if they assert any right to relief jointly, severally,
or in the alternative in respect of or arising out of the same
transaction, occurrence, or series of transactions or occurren-
ces and if any question of law or fact common to all these
persons will arise in the action. All persons (and any vessel,
cargo or other property subject to admiralty process in rem)
may be joined in one action as defendants if there is asserted
against them jointly, severally, or in the alternative, any right
to relief in respect of or arising out of the same transaction,
l4a Petitioner’s Petition for Writ of Mandamus
occurrence or series of transactions or occurrences and if any
question of law or fact common to all defendants will arise in
the action. A plaintiff or defendant need not be interested in
obtaining or defending against all the relief demanded. Judg-
ment may be given for one or more of plaintiffs according to
their respective rights to relief, and against one or more
defendant according to their respective liabilities.
(b) Separate Trials. The court may make such orders as
will prevent a party from being embarrassed, delayed, or put to
expense by the inclusion of a party against whom he asserts
no claim and who asserts no claim against him, and may order
separate trials or make other orders to prevent delay or
prejudice.
28 USC Rule 21. Misjoinder and Non-Joinder of Parties
Misjoinder of parties is not ground for dismissal of an
action. Parties may be dropped or added by order of the court
on motion of any party or of its own initiative at any stage of
the action and on such terms as are just. Any claim against a
party may be severed and proceeded with separately.
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No.
IN RE: CHEVRON CHEMICAL COMPANY,
PETITIONER
CHEVRON CHEMICAL COMPANY'S
PETITION FOR WRIT OF MANDAMUS
On Petition for Writ of Mandamus From
the United States District Court for the
Eastern District of Michigan
Petitioner's Petition for Writ of Mandamus 15a
in the case of
Marie E. Munn and George E. Munn
Vv.
Chevron Chemical Company
Civil Action No. 81-70555
BUSHNELL, GAGE, DOCTOROFF & REIZEN
3000 Town Center, Suite 1500
Southfield, Michigan 48075
(313) 444-4848
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
IN RE: CHEVRON CHEMICAL COMPANY,
Petitioner
CASE NO.
J
CHEVRON CHEMICAL COMPANY'S
PETITION FOR WRIT OF MANDAMUS
BUSHNELL, GAGE, DOCTOROFFF & REIZEN
3000 Town Center, Suite 1500
Southfield, Michigan 48075
(313) 444-4848
TABLE OF CONTENTS
PAGE
TABLE OF CONTENTS. .occccccccscccceccenssececes i-ii
INDEX OF AUTHORITIES CITED .............. iii-viii
STATEMENT OF ISSUES PRESENTED ............ ix
PETITION FOR WRIT OF MANDAMUS
WITH STATEMENT OF RELIEF REQUESTED ... 1
STATEMENT OF FACTS .ncccccccsccssccsccevcces 2-13
STATEMENT OF REASONS WHY
THE WRIT SHOULD ISSUE ..............45. 14-38
l6a Petitioner's Petition for Writ of Mandamus
4
THE DISTRICT COURT'S RULING, WHICH DOES
NOT PURPORT TO BE PREDICATED UPON
THE GROUNDS FOR REMAND PERMITTED BY
28 USC §1447(c) AND WHICH MOREOVER IS
AFFIRMATIVELY PREDICATED ON GROUNDS
WHOLLY DIFFERENT FROM THOSE DE-
SCRIBED THEREIN, IS SUBJECT TO REVIEW
BY THIS COURT BY MANDAMUS AND MUST
BE VACATED accccccccccccccscccsscvecceseses 14-
II.
THE DISTRICT COURT’S ENTRY OF A FORM
ORDER OF REMAND ON SEPTEMBER 27, 1982,
WHICH DID NOTHING MORE THAN RECITE
THE WORDS “IMPROVIDENTLY REMOVED”
AND “THERE IS NO FEDERAL JURISDICTION”
BUT WHICH IN FACT DID NOT REFLECT THE
CONTENT, SUBSTANCE OR TENOR OF THE
COURT'S RULING OF SEPTEMBER 28, 1982, IS
SUBJECT TO REVIEW BY THIS COURT BY
MANDAMUS AND MUST BE VACATED ....... 23-
i
Il,
THE DISTRICT COURT’S CONDUCT IN RELA-
TION TO THE MANNER AND MEANS OF RE-
MANDING THIS ACTION TO THE STATE COURT,
SO AS TO DEPRIVE THE DEFENDANT OF THE
SUBSTANTIAL FEDERAL RIGHT OF REMOVAL
WITHOUT DUE PROCESS OF LAW, IS SUB-
JECT TO REVIEW BY THIS COURT BY MAN-
DAMUS AND THEREBY WARRANTS VACATION
OF THE REMAND ORDER PREDICATED UPON
BUCH CONDUCT 2. cccccccsccccccccsvcssccevess 30-
fo ei) | 6) reer rrr rer rr rrr rr errr rr 35-
Petitioner's Petition for Writ of Mandamus 17a
FOOTNOTES ccccccccscccsscccceccesccescvccsess 39-44
CERTIFICATE OF SERVICE .........cccccssscsvees 45
ii
INDEX OF AUTHORITIES
PAGE
I. CASE AUTHORITIES
A. Decisions of the United States Supreme Court
Forman v Davis, 371 US 178 (1962) ......ccscececevsvvees 6
Gravitt v Southwestern Bell Tel. Co., 430 US 723
COUPER cbbveesvcanavevspudeceneseteanss 20, 23, 25, 27n.7
Klapprott v United States, 335 US 601 (1949) ........005- 32
LaBuy v Howe Leather Co., 352 US 249 (1957) ...... ee eee 34
Roche v Evaporated Milk Ass’n, 319 US 21 (1943) ...... 27n.7
St. Paul Mercury Indemn. Co. v Red Cab, 303 US 283
CRUOG. cb ccd cc cb canssnersevacercsevsiensesevesesees 17
Sheldon v Sill, 8 How. 441 (1950) ..... ccc ceeceeveeecs 27n.7
Thermtron Products, Inc. v Hermansdorfer, 423 US 336
CRPUED stcsecnotesndaseeee snd iueecaenss 14, 15, 16n.4, 18,
iraehieea aCe UPS SMES SSE Re eens eedrehCaeen 19, 20, 21, 22, 23
ieauinwsedeee case vesiasanadehvsreeneks 27, 27n.7, 28, 29, 31
United States v Hagman, 342 US 205 (1952) ........ ee eens 37
Volvo Corp. of Am. v Schmarzer, 429 US 1331 (1976) (in
Chambers Opinion of Circuit Justice Rehnquist) ....... 20
Work v U.S. ex rel Rivers, 267 US 175 (1925) ............ n.4
B. Decision of the United States Courts of Appeal
Brown v Eastern States Corp. 181 F2d 26 (4th Cir), cert.
Gentes, BID US GE4 (IGG) ices cisciccscrcictecscsass 17
Buckeye Cellulose Corp. v Bragger Elec. Const., 569 F2d
SOE CNG SPEED So danuNavcunRckseecsecuresdcacucs 32
Chesapeake & Ohio RR v U.S. District Court, - Slip Op.
-(6th Cir No. 82-1155 May 21, 1982) ..........eeeees 18, 20
iii
Chiodo v General Waterworks Corp., 380 F2d 860 (10th Cir
SR ce ckns owe penwen bliss bas bserecebaeeeian 16n.5
18a Petitioner’s Petition for Writ of Mandamus
Desert Emp. Bank v Ins. Co. of No. Am, 623 F2d 1371
BS 2 Be rere ere ee rere Tree 16n.5
Fidelity & Deposit Co. of Maryland v USA Form Hail
Pool, Inc., 523 F2d 744, cert denied, 425 US 950 (1976) ...32
Fleming v Gulf Oil Corp., 547 F2d 908 (10th Cir
PTE Sab vadasnerdecauewsb eves nes sdesacesssedases 33
H.F. Livermore Corp. v Aktiengesellschaft Gebruder Loepk,
oe ee ee ee reer ree 32
IMFC Prof. v Latin Am. Howe Health, 676 F2d 152 (5th
SO SG Medea s ba ccesccaccocspersvaseanesevas 16, 16n.5
In re Carter, 618 F2d 1093 (5th Cir 1980), cert denied, 450
2S Serer re rere ee rere 17, 21
In re Greyhound Lines, Inc., 598 F2d 883 (5th
SO FOU Nev hdVU sched we ce danevacereenecevateines 20, 21
In re LaProvidencia, 406 F2d 251 (1st Cir 1969) .......... 13
In re Merrimack Mut. Fire Ins. Co., 487 F2d 642 (5th Cir
DOOD beet bedsoen cus ancecarss Wesneens 11, 16nn.4 & 5, 17,
(anes buenebaeenennbeanepdontsssaresebennase 18, 20, 22, 26
In re Shell Oil Co., 631 F2d 1156 (5th Cir 1980) ........... 21
In re Southwestern Bell Tel. Co. 542 F2d 297 (5th Cir
1976), revd sub. rom., Gravitt v Southwestern Bell Tel.
Ch Se ae PP CEN Ci acide raceaekevaae eens seeeces 20
In re Weaver, 610 F2d 335 (5th Cir 1980) ...........4. 13, 20
Jackson v Beech, 636 F2d 831 (D.C. Cir 1980) ............4. 32
Keegel v Key West & Carribean Trad. Co., 627 F2d 372
6 ep Cab a kak cde ed basa eewe ewes 33
Levy v Weissman, 671 F2d 776 (3rd Cir 1982) ........665- 21
Meadows v United States, 665 F2d 1009 (11th Cir
EE as CRARA So FoR LORE RS RS aAA Re WOe cake Dene ba Saks 22
iv
TOBL) w.ccccccccvcccccccccsccccccccscsccccvcececcues 22
Petitioner's Petition for Writ of Mandamus 19a
Reynolds v Wabash R.R. Co., 236 F2d 387 (8th Cir
CE ieidalGecdhetaeend ouaneonh a ekewea snes 16n.5
Robertson v Wall, 534 F2d 63 (5th Cir 1976) ........ee eee 22
Royal v State Farm Fire & Cas. Co. 685 F2d 124 (5th Cir
ed nse iene Kee nein eek eo. oewe aed ae 21, 25-26
Ryan v State Bd of Elections, 661 F2d 1130 (7th Cir 1981)
Mea aaR ane ee Chal seeakekesaeeekea ss 16 & n.5, 18, 21
Seven Elves, Inc. v Eskenazi, 635 F2d 386 (5th Cir
Pei akse pate aecn Eee ObALeeSNeesdeoaasaamens 32
State Farm Mut. Aut. Ins. Co. v Baasch, 644 F2d 94
SE NEE have icncnyesecassscnandesecevaseennee 20
Swindell-Dressler Corp. v Dumbauld, 308 F2d 267 (3rd
EE Okra Aneta snes 60 6 e'pdled en ne sks eacenen 34
Television Recpt. Corp. Dunkan, 426 F2d 174 (6th Cir
FOUED Seb cncsVicciversonedccececoceseteoceseneeses no
Three J. Farms, Inc. v Alton Bor Board Co., 609 F2d 112
CN kerr eT Tre rr rere rerer 13, 22, 33n.8
Wilson v Moore & Assoc. Inc., 564 F2d 366 (10th Cir
Pere rrr re err errr reer rere eT Tere Ere ee 33
C. Decisions of United States District Courts
Alexander v Lancaster, 330 F. Supp. 341 (W.D. La.
SE Ceti ssAACe eS OUECARKN hese edeaeenaseecens 16n.5
Barnett v McDonald’s of Oklahoma City, 419 F. Supp.
TE OF a COND BOTG) wens ccccceccccvceseceve 16n.5
Checker Motor Corp. v Chrysler Corp., 39 F.R.D. 37
EEE a ba eas Keene One seccccenvesiusaes 16n.5
Fort Howard Paper Co. v Affiliated F.M. Ins. Co., 60
Se ee SOON UE cnt évacecedeodccvencatur 16n.5
Haelon Lab. Inc. v Topps Chewing Gum, Inc., 131 F. Supp.
SE Ss BOE Sate ekckscedev eae sicuecus 16n.4
¥
Harper Finc. Corp. v Hanson Oil Co., 403 F. Supp. 1405
COTE BOM TIVO) caccccscccccecvessccveones 16nn.4 & 5
20a Petitioner's Petition for Writ of Mandamus
Ingersoll v Pearl Ass. Co, 153 F.Supp. 558 (N.D. Cal.
BOUT) cc ccccscacncccnisecccsecsececccsuseces 16n.4
Littlefickl vy CNA, 475 F.Supp. 887 (C.D. Cal. 1979) .... 16n.5
Miller v Davis, 464 F.Supp. 458 (D.D.C. 1978)......... 16n.5
Pacific Gas & Elec. Co. v Fireboard, 116 F.Supp. 377 (N.D.
Cal TGGS) ccccccccccccescccccccccccecsscccecs 16n.5
Perimeter Lighting Inc., v Karlton, 456 F.Supp. 355 (N.D.
<" DAPPrerrrrr errr rererrrererererere 16n.5, 18
Shaw v Mumford, 526 F.Supp. 1209 (S.D. N.Y. 1981) ... 16n.5
Skinner v American Oil Co., 470 F.Supp. 229 S.D. Iowa
PPP Perr rrr rrr rr rrr rere rr err rere “ees 16n.5
Soam Corp. v Trane Co., 506 F.Supp. 302 (S.D. N.Y.
WOR cccccscccscccccsccccccccscvccscccscces 16n.5
Thorp v Petrola, 81 F.R.D. 513 (N.D. W. Va. 1979 ..... 16n.5
II. STATUTORY AND RULE AUTHORITIES AND
CONSTITUTIONAL REFERENCES
A. Statutes
Ee 1
es sy ue cnnbases 19
SS ee ie 2
os cena s yaa’ 2, 31
se a. whan wade 2
(SE ete 9, 14, 15, 16,
16n.4, 17, 18, 20, 21, 22, 24,
25, 25n.6, 26, 27, 27n.7, 28
Gea uuuaee weeweesanr 9, 13, 14, 15,
16n.4, 29, 35, 37
vi
GRA AE ea ree eee 1, 14, 21, 35, 37
B. Rules
Se ee ae! ere 6, 7n.3, 31, 33n.8
idwoceessiaarevneean 16n.5
DeGanidhbasdeseanekeas 16n.5
Petitioner's Petition for Writ of Mandamus 2la
ee Cee ree 16n.5, 25
Pe eer eee 7, 16n.5
Re ore ee ee 13, 33n.8
i. ee eee 33, 34
a FOG, Be. AOS. FBI) ecscscssecsvrscossece 1
i ee oe 5 haha andes bas cae eas 1
2 oe Bk aceeee se caswaah 6, 13, 32
C. Constitutional References
es Cree, Ce. OO iin ite e es sedasieevereren 36
ee I I re ee or rae 27, n.7, 37
US. Const. Amend V (due process clause) . . 30-35, 37
Ill. OTHER AUTHORITIES
A. Treaties and Law Review Authorities
Meyers, Federal Appellate Review of Remand Orders:
Expansion or Eradication, 48 Miss. L. J. 741 (1971). .26, 29-30
J. Moore, Moores Frederal Practice ........ 7, 10, 16n.4, 35n9
Note, Remand Order Review After Thermtron, 1977 Ill. L.
i ee eee tee eee ee Toes Nes aude oe 20, 26
vii
Rible, Federal Courts: Review of the Remand Order, 9 St.
ES Bis OPN CEE T se a deedenstadedveenes Rens 26, 28
Wright, Federal Courts (2d ed 1970)... .. cece eee ee eee 17
14 C. Wright, A Miller, & E. Cooper, Federal Practice &
PENNE Sp add wanes dasecbsescasonevaeeer 31
B. Foreign Authorities
Rex v The Chancellor of Cambridge University (Dr. Bent-
ley’s Case), Fortescue 202; 92 E.R. 818 (K.B. 1723)...... 36
Rex v Vice-Chancellor of Cambridge University (the Earl
of Hardwicke’s Case), 3 Burr. 1048; 97 E.R. 1027
CE hot oscrccccedesaccdeesccesccessccseces: 36, 37
T. Tapping, The Law & Practice of the High Prerogative
Writ of Mandamus (1853) 0... cccccccccccccccceces + SO
22a
Petitioner's Petition for Writ of Mandamus
STATEMENT OF ISSUES
I,
THE DISTRICT COURT'S RULING WHICH
DOES NOT PURPORT TO BE PREDICATED
UPON THE GROUNDS FOR REMAND PER-
MITTED BY 28 USC $§1447(¢) AND WHICH
MOREOVER IS AFFIRMATIVELY PREDI-
CATED ON GROUNDS WHOLLY DIFFERENT
FROM THOSE DESCRIBED THEREIN IS SUB-
JECT TO REVIEW BY THIS COURT BY MAN-
DAMUS AND MUST BE VACATED
Il.
THE DISTRICT COURT'S ENTRY OF A FORM
ORDER OF REMAND ON SEPTEMBER 27, 1982
WHICH DID NOTHING MORE THAN RECITE
THE WORDS “IMPROVIDENTLY REMOVED”
AND “THERE IS NO FEDERAL JURISDIC-
TION” BUT WHICH IN FACT DID NOT RE-
FLECT THE CONTENT, SUBSTANCE OR
TENOR OR THE COURT'S RULING OF SEP-
TEMBER 28, 1982, IS SUBJECT TO REVIEW
BY THIS COURT BY MANDAMUS AND MUST
BE VACATED
III.
THE DISTRICT COURT'S CONDUCT IN RELA-
TION TO THE MANNER AND MEANS OF RE-
MANDING THIS ACTION TO THE STATE
COURT SO AS TO DEPRIVE THE DEFEND-
ANT OF THE SUBSTANTIAL FEDERAL RIGHT
OF REMOVAL WITHOUT DUE PROCESS OF
LAW IS SUBJECT TO REVIEW BY THIS
COURT BY MANDAMUS AND THEREBY WAR-
RANTS VACATION OF THE REMAND ORDER
PREDICATED UPON SUCH CONDUCT
ix
Petitioner's Petition for Writ of Mandamus 23a
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
IN RE: CHEVRON CHEMICAL COMPANY,
Petitioner.
CASE NO.
PETITION FOR WRIT OF MANDAMUS
WITH STATEMENT OF RELIEF REQUESTED
NOW COMES Petitioner, CHEVRON CHEMICAL COM-
PANY, by and through its attorneys, BUSHNELL, GAGE,
DOCTOROFF & REIZEN, and Petitions this Court for a
Writ of Mandamus directed to the Honorable Horace W.
Gilmore, United States District Judge for the Eastern District
of Michigan, pursuant to the All Writs Act, presently codified
in 28 U.S.C, $1651, the Federal Rules of Appellate Procedure
21(a) and Rule 23 of this Court, Compelling him 1) to vacate
his Order of September 27, 1982, remanding the case of Marie
E. Munn and George A. Munn v Chevron Chemical Company,
Civil Action No, 81-70555, to the Wayne County Cireuit Court
and 2) to either restore said action to the docket of the United
States District Court for the Eastern District of Michigan or
to dismiss it altogether.
STATEMENT OF FACTS
The facts pertinent to this Petition are painfully simple.
Plaintiffs, citizens of Michigan, commenced a products liability
action against Defendant CHEVRON CHEMICAL COM-
PANY in Michigan's Wayne County Circuit on February 13,
1981. The Complaint alleges that a product of Defendant's
known as “Weed Be Gone” was defectively manufactured and
caused Plaintiff GEORGE A. MUNN to contract a terminal
carcinoma, caused Plaintiff MARIE E. MUNN to lose the
consortium of her husband, and further alleged that damages
exceeded Ten Thousand ($10,000.00) Dollars. (A-8 to A-10).
On February 20, 1981, Defendant CHEVRON filed a Peti-
tion for Removal alleging, inter alia, that CHEVRON was a
24a Petitioner's Petition for Writ of Mandamus
Delaware Corporation with its principal place of business in
California, Consequently, because the citizenships of the parties
was diverse and the amount in controversy exceeded the
jurisdictional limit of Ten Thousand ($10,000.00) Dollars, the
Removal Petition averred that the action was one that could
have originally been commenced in the United States District
Court, under 28 U.S.C, §1332, and therefore, pursuant to 28
U.S.C. $1441, the action was removable to that Court. (A-15 to
A-17). A bond was posted as required by 28 U.S.C. §1446 (A-15
to A-20) and CHEVRON took all other steps necessary to
insure proper removal in a timely fashion. (A-11 to A-40),
Neither the Plaintiffs nor the District Court have ever ques-
tioned or challenged removal as being anything but wholly
proper.
a
Having filed its Answer (A-33 to A-38) simultaneous to the
Petition for Removal, the case thereafter proceeded into the
discovery stage. Without burdening this Petition or the Ap-
pendix with details, it is adequate to simply state that both
parties engaged in extensive discovery, See Docket Sheet (A-1
to A-6). Some nine months after the case was removed,
District Judge Charles Joiner — the District Judge inititially
assigned the case — ordered a Status Report Conference for
the purpose of ascertaining the nature of the case, the work
already accomplished by counsel and, most importantly, the
future deadlines and working dates to be set. (A-41). At that
Conference held on November 4, 1981 (A-2 Docket Entry of
November 4, 1981), he entered an Order establishing the
following calendars for the case: “Discovery cut-off was estab-
lished for November 1, 1982; a Final Pre-Trial Order in
compliance with a preordained form was to be submitted by
November 10 1982; and a Final Pre-Trial Conference was set
for November 15, 1982. Moreover, the Court set the matter
down for trial on November 29, 1982 at 8:30 A.M. and required
the disclosure of experts and the addition of parties to be
accomplished by May 1, 1982. (A-42 to A-45).
Petitioner's Petition for Writ of Mandamus 25a
Subsequent to that conference, on January 13, 1982, the case
was reassigned to Judge Avern Cohn, (A-2 Docket Entry No.
26). No subsequent Order ever altered the dates established by
Judge Joiner, save that Judge Cohn did permit an extension of
time to the parties to “name their expert witnesses and add
additional parties by September 1, 1982.” (A-61 to A-69), That
Order was entered at the request of Plaintiffs (aud over
ee
Defendant's objection (A-56 to A-60), by Motion, to Amend
their Complaint (A-46 to A-55) to include a more detailed
description of Mr. Munn’s injuries and of Defendants product
and for an Extension of Time to Bring in expert Witnesses
and Add Parties.' In all other respects, Judge Joiner’s Order
and specified dates remained intact.
Sometime in mid August, 1982, counsel for the Defendant
was approached by counsel for the Plaintiffs about extending
the time to name expert witnesses. Counsel for the Defendant
drafted a Stipulation, with proposed Order, to permit the
parties to be able to disclose experts by October 1, 1982. He
then sent those document drafts to counsel for the Plaintiffs
but, apparently, counsel for the Plaintiffs elected not to pre-
sent the Order to the Court until after the September 1, 1982
deadline had expired, as one was never entered until Sep-
tember 16, 1982.2 (A-5 Docket Entry No. 56), In any event, the
Stipulation in no way altered the September 1, 1982 deadline
for naming additional parties. (A-5 Docket Entry No. 56),
Despite this, Plaintiffs filed a second Motion to Amend their
Complaint with the Court on September 21, 1982 — twenty
one (21) days after the cut-off date for adding parties. (A-5
Docket Entry No, 59; A-67 to A-69), Simultaneously, a sym-
botic Motion for remand was filed (A-5 Docket Entry No 60;
A-70 to A-72). It, along with its one page Brief (A-71) asserted
a domino theory in favor of remand. That is to say, Plaintiffs
only contended that if the Motion to Amend was granted,
there would no longer be complete diversity — the party to be
ay TA
26a Petitioner's Petition for Writ of Mandamus
added, Dow Chemical, being a Michigan citizen — and the
case, necessarily, would have to be remanded to State Court.
These Motions, and the Briefs offered in Support thereof,
should be carefully reviewed by this Court if only to demon-
strate, by their insufficiency, that the subsequent actions of
the District Judge’s depriving the Defendant of adequate
means and time to respond to them constituted a clear abuse of
discretion.
The Motion to Amend simply asserts that at unspecified
depositions, of unspecified persons (apparently Chevron em-
ployees), on unspecified dates “it was learned that Defendant's
product was a compound of several substances, at least one of
which is suspected of being carcinogenic” and “that said
carcinogenic substance is manufactured by the Dow Chemical
Company.” Neither in the Motion to Amend nor the Brief
offered in support is this mysterious substance identified, nor
does either pleading attempt to establish that Dow provided
Defendant CHEVRON with this substance in the manufac-
ture of Chevron’s products. Additionally, no reference is made
to specific excerpt(s) from the transcription(s) of these unspeci-
fied deposition(s). The Motions and the record are thoroughly
void as to how Dow Chemical is implicated in this lawsuit. At
best, the Motion only establishes by mere assertion that “Dow
Chemical Company could be involved in this litigation” (A-67),
Dow's exact relationship to the case — like the “substance” —
being a complete mystery. Indeed, the Motion contains no
proposed Amended Complaint to establish on just what bases
Dow was to be brought into litigation. Defendants therefore
x?
were unable to ascertain if Dow was to be a potential cross-
defendant, third party-defendant or simply a co-defendant.
Finally, the Brief in Support of the Motion provides perhaps
the most revealing aspect of the entire matter (at least vis-a-
vis the Plaintiffs) because there Plaintiff's unabashedly confess
that the real purpose of their discovery efforts against Chevron
was to “fish” out other potential Defendants!
Petitioner's Petition for Writ of Mandamus 27a
Plaintiffs exercised discovery procedures for the pur-
pose of determining what other Defendants should be
involved in this litigation.
Brief In Support Of Plaintiffs Motion To Amend To Add Dow
Chemical (A-68).
Plaintiffs then relied upon the purported talisman of Forman
v Davis, 371 US 178 (1962) to justify granting the Motion to
Amend because, apparently, “justice so requires” it.
The Plaintiffs effectuated service of these motions upon the
Defendant by posting the Motions and Briefs on September
20, 1982. Proof of Service of Motions (A-74). In compliance
with local rule normally providing at least ten (10) days for
motion responses, E.D. Mich. Rule 17 (g), and at least an addi-
tional three or six days for mailing under Fed. R. Civ. P. 6(e),
the Motion was set for hearing before Judge Cohn on October
17, 1982 (A-73) — almost one month after filing.
On September 21, 1982 counsel for Plaintiffs and counsel
for Defendant received a conference call from Judge Cohn
wherein he stated that he had received the Plaintiffs’ Motions
(filed that very day) and, given that he owned stock in Dow
+ -
Chemical Company, felt compelled to disqualify himself. He,
therefore, entered an Order of Disqualification pursuant to 28
U.S.C. §455 on the same day and the clerk reassigned the case
by blind draw to the Honorable Horace W. Gilmore (A-75). As
of that date, September 21, 1982, counsel for the Defendant
had yet to receive Plaintiffs’ Motions to Amend Complaint and
for Remand,
On the afternoon of the following day, September 22, 1982,
counsel for the Defendant received a telephone call from Judge
Gilmore’s clerk directing him to appear the following day,
September 23, 1982 at 2:00 P.M. for a hearing on the Motions.
Although defense counsel was aware of the fact that Motions
had been filed, he had yet to obtain those Motions at the time
he received this phone call.
Of course it goes without saying that defense counsel could
Jka Petitioner's Petition for Writ of Mandamus
not adequately prepare for the hearing to be conducted less
than twenty four hours from the time he was orally notified
of the same — especially given that he did not have in his
possession until later that afternoon the very Motion papers
he was to oppose. Counsel therefore appeared at the hearing
primarily to request that the Court permit him time to respond
to the Motions in writing. The Court, however, was disinclined
to pursue this course and inquired as to what arguments
counsel could make in opposition to the Motions. In essence,
counsel for Defendant focused upon a passage in Professor
Moore's Treatise on Fedeal Practice and upon the upcoming
trial date. The contention counsel hastily attempted to make
via the Moore's citation was that the Rules of Procedure
q.
governing joinder of parties were oriented toward the preserva-
tion of federal jurisdiction, See, e.g, Fed. R. Civ. P. 19(a)
(Sentence one, Clause 1) Fed. R. Civ, P. 21. This is parti-
cularly compelling when the party to be joined is not indis-
pensable, Of course, the arguments related to the upeoming
trial date are obvious — the Defendant contended Plaintiffs
were attempting to obtain more discovery, postpone the trial
and get more time to secure an expert for their questionable
claim, simply by alleging, at the eleventh hour, that Dow
Chemical could be liable for something.
More important than what was argued before, and rejected
by Judge Gilmore however, is a purview of the arguments
counsel could not make simply because of the truncated nature
of the proceedings. Correlatively, these arguments — es-
pecially the ones touching upon the history of the case —
demonstrate that there was no way Judge Gilmore could have
possibly familiarized himself with the specifics of this case
relevant to the motions in one day; particularly when he
extracted himself from the protection that the adversarial
process inherently provides every decisionmaker.
Petitioner's Petition for Writ of Mandamus 29a
For example, Chevron, through its counsel, did not have an
adequate opportunity to prepare or even file written memo-
randa in opposition. He did not have the opportunity to
demonstrate to the Court that the very relief sought by
Plaintiffs was precluded by Judge Cohn's Order of May 10,
1982 requiring the addition of parties by September 1, 1982.
He was not able to establish, that there was substantial
authority to the effect that a District Court has no discretion to
<—-
grant an amendment under such circumstances; or that the
Defendant could well be left without any remedy to correct the
District Court’s abbreviated approach to the motions, given the
general prohibition of review of remand orders found in 28
U\S.C, §1447(d); or that complex and difficult questions regard-
ing the limited cireumstances in which remand is appropriate
under 28 U.S.C, §1447(c) are implicated by the case.
Neither did counsel have an opportunity to present argu-
ments regarding the gross inadequacy of the motions to demon-
strate particularly how Dow was implicated, or the nature or
identity of the mysterious carcinogenic substance or its rela-
tionship to Chevron products, or the names, dates and specific
testimony of the witnesses who allegedly triggered counsel's
fancy to pursue Dow. Additionally, counsel did not have an
opportunity to establish that, by admission in their own plead-
ings, Plaintiffs’ acknowledged a thoroughly wrongful purpose
for their discovery efforts against Chevron — to seek out new
Defendants and bravely go where the Rules do not permit
litigants to travel! Further, defense counsel was unable to
establish that a proposed amended Complaint had not been
attached to the Motion and that there was a complete absence
of information as to what, if any role Dow had played in the
alleged injury and what, if any, role they were going to assume
in the lawsuit.
Moreover, Defendant, due to the Court's acting in haste, was
unable to point to authority warning District Judges to be
30a Petitioner's Petition for Writ of Mandamus
aware of collusive efforts by Plaintiffs to obtain Remands
back to their formerly selected forum; or to argue that the
.
delay inherent in a remand to Wayne Circuit, should be
seriously considered by the District Judge because the very
purpose for the general prohibition against review of remand
orders, i.e., to avoid delays, is foiled under such circumstances.
Finally, Defendant was unable to present arguments that
explicit language in Fed. R. Civ. P. 19(a) forbids addition of
even an indispensable party who presence destroys diversity
jurisdiction but rather only permits the Court to determine
whether to continue with the action without the party or to
dismiss the action as provided for in Fed. R. Civ. P. 19(b). 28
U.S.C. Rule 19.
The Court elected to rule immediately, (A-76 to A-79) stating
the issue was whether to allow the amendment to add Dow.
(A-77). It then stated that if the Amendment was allowed, “it
destroys diversity and the case would automatically be re-
manded to Wayne Circuit Court.” In a one and one-half page
Opinion, the District Court extracted from, and focused in
upon language in the Moore’s citation provided by defense
counsel to the effect that an amendment to add a nondiverse
party should not be granted unless the party is indispensable
or there are strong equities in favor of amendment. The Court
concluded these two conditions were to be read in the disjunc-
tive and that he felt there were “strong equities” favoring
amendment. Acknowledging the total inadequacy of the Motion
to Amend to demonstrate how Dow Chemical was implicated,
the Court stated that Dow was not an indispensable party but
would be indispensable if they were responsible for the Plain-
tiffs injuries. The District Court concluded that “the equities -
= Fe
favor allowing such an amendment so that in one lawsuit a
proper fact finder can in due course make a determination
with everyone in front of it.” Judge Gilmore then granted the
Petitioner's Petition for Writ of Mandamus 3la
Amendment and stated “I will remand the case to the Wayne
County Cireuit Court.”
On September 27, 1982, Judge Gilmore entered a “form”
order of Remand to Wayne Circuit Court. Cursory perusal
reveals that the word “Wayne” was typed into a blank space
on the Order form relating to which Circuit Court the case
was being remanded, and that the words “lacking total diver-
sity” were added after the form’s standard language regarding
absence of jurisdiction (A-80).
This Order, it is respectfully submitted, in no way reflects
the content of the District Judge’s consideration, and Opinion
of September 23, 1982 regarding Amendment and Remand.
For example, the Order states the “case was improvidently
removed” but there was absolutely nothing in the Opinion (or
in the entire record of the case) to even intimate that the
District Judge considered the improvidence of removal, either
at the time the case was removed or at any other time!
Similarly, the Order states that “there is no federal jurisdiction
... lacking total diversity” but the Opinion no where discussed
or even mentioned the word jurisdiction; the Court simply said
that if he permitted the Amendment diversity would be des-
troyed and the case would automatically be remanded. The
only items really discussed in relation to remand are totally
absent from the Order; to-wit, the “strong equities” in favor of
amendment or the discussion regarding Dow not being an in-
oe
dispensable party or that, in any event, there was no need to
show such to grant the amendment.
Counsel for the Defendant had intended on contesting, in
presentment of order proceedings, any proposed order from
Plaintiffs’ counsel which did not exactly conform to the
Court’s September 23, 1982 Opinion and ruling. Indeed, counsel
ordered a transcript of those proceedings on an expedited basis
to see to that end. Counsel followed this course precisely be-
cause of the apparent importance the facial content of such
32a Petitioner's Petition for Writ of Mandamus
orders bear upon attempts to obtain relief from them in this
Court and in the Supreme Court. Moreover, counsel also
wanted to be able to present the District Court with those
arguments and points he was forestalled from making by its
truncation of the proceedings prior to the Court’s taking the
apparently irrevocable step of signing the order.
However, counsel was once again foiled by the District
Judge’s unorthodox abridgements of the normal adversarial
processes. Apparently, in an effort to get the matter removed
from the docket with all possible haste, perhaps even to
accomplish this by the end of the month of September, the
District Judge did not wait for a proposed order from Plain-
tiffs’ counsel — much less the conclusion of presentment pro-
ceedings — but rather, on his own, entered the September 27,
1982 “form” order. It should also be noted that in the haste, at
least of this date, no order granting the amendment was ever
entered.(A-1 to A-6; Docket Sheet).
~ 2
Finally, defense counsel would point out that they never
were served a copy of the Order of remand. Only by virtue of
the preparation of this Petition did counsel secure a copy of
that Order by obtaining the same from the Clerk’s office of the
Eastern District of Michigan.
This Court (and Respondent) should also be aware that prior
to filing this Petition for Mandamus, counsel for Defendant
seriously contemplated seeking Reconsideration of the Remand
Order pursuant to E.D. Mich. Rule 17(k) and Fed. R. Civ. P.
60(b) in order to bring to the attention of Judge Gilmore all of
those arguments and points discussed above which Defendant
did not have an opportunity to present to him. Under ‘normal’
conditions, the circumstances of this case would be taylor-
suited to a motion for reconsideratica. See, E.D. Mich. Rule
17(k)(3). However, given the fact that the remand Order
comes arguably within the pale of 28 U.S.C. §1447(d)’s prosrip-
tion, counsel noted specific authority that, if not precluding
Petitioner's Petition for Writ of Mandamus 33a
Reconsideration, counseled an immediate filing of a Petition
for a Writ of Mandamus as opposed to seeking Reconsidera-
tion. In Re Weaver, 610 F2d 335 ,336 & n.3 (5th Cir. 1980). See
also Three J. Farms, Inc. vy Alton Bor Board Co., 609 F2d 112,
115 (4th Cir. 1979); In re LaProvidencia Development Corp.,
406 F2d 251 (1st Cir. 1969).
-13-
STATEMENT OF REASONS WHY THE WRIT
SHOULD ISSUE
I,
THE DISTRICT COURT'S RULING WHICH
DOES NOT PURPORT TO BE PREDICATED
UPON THE GROUNDS FOR REMAND PER-
MITTED BY 28 USC §1447(c) AND WHICH MORE-
OVER IS AFFIRMATIVELY PREDICATED
ON GROUNDS WHOLLY DIFFERENT FROM
THOSE DESCRIBED THEREIN IS SUBJECT
TO REVIEW BY THIS COURT BY MANDA-
MUS AND MUST BE VACATED
This Petition presents difficult questions regarding the
power and jurisdiction of a United States Court of Appeals to
correct clearly improper and abusive conduct by a District
Court Judge, primarily because that abuse arises in the con-
text of a Remand proceeding. Petitioner concedes that the sta-
tutes of the United States do not provide it with a right to
appellate review of this Remand Order but do argue that
extraordinary relief, pursuant to the All Writs Act, 28 USC
§1651, in the nature of mandamus, is within the prerogative
powers of this Court. Thermtron Products v Hermansdorfer,
423 US 336 (1976).
The Petitioner also acknowledges that 28 USC §1447(d)
generally prohibits review of remand orders by “appeal or
otherwise,” which, in most instances, in mos ‘tances pre-
cludes review by mandamus as well. However, in Thermtron
34a Petitioner's Petition for Writ of Mandamus
Products, the Supreme Court construed 28 USC $1447(d) in
pari materia with 28 USC $1447(c), describing under what cir-
cumstances remand is warranted, and concluded “that only
remand orders issued under §1447(¢) invoking the grounds
specified therein — that removal was improvident and without
jurisdiction — are immune from review under $1447(d).” Therm-
mY we
tron Products v Hermansdorfer, 423 US at 346, In fact the
court specifically noted that,
We are not convinced that Congress ever intended to
extend carte blanche authority to the district courts to
revise the federal statutes governing removal by remand-
ing cases on grounds that seem justifiable to them but
which are not recognized by the controlling statute,
Id, at 351,
Clearly, such occurred in the context of this case. Judge
Gilmore without even | recitation of the Statute or mention of
the ground permitting remand therein, concluded “strong equi-
ties” favored joinder of a non-diverse, non-indispensavle party
— grounds wholly unrelated to those recognized by 28 USC
§1447(¢), but apparently justifiable to him. In fact, the Fifth
Circuit Court of Appeals has recognized that a remand based
upon joinder of a non-diverse, non-indispensable party consti-
tutes improper grounds for removal warranting vacation by
writ of mandamus:
Perhaps it can be persuasively argued that the lan-
guage of §1447(c) allows the district judge to consider
on a motion for remand the additions after removal of
indispensable parties but no other parties, . .
[W]e cannot ascertain from the district judge’s order
whether he based his remand on the clearly proper
ground that Smuts and McDowell [non-diverse per-
sons] are indispensable parties or on the clearly im-
proper ground that although they are not indispensable
Petitioner's Petition for Writ of Mandamus 35a
parties joinder (and hence remand) was nevertheless
called for... 3
- 15 -
In re Merrimack Mut. Fire Ins, Co, 587 F2d 642, 646-47 (5th
Cir 1978),
Although that Court went on to deny the writ because of the
noted ambiguity in the order, the Merrimack Court did explic-
itly reeognize by footnote that permitting joinder of a non-
indispensable, non-diverse defendant clearly was outside of the
District Court's discretion, and that such an exercise of disere-
tion was one outside the exclusive grounds of 28 USC §1447(¢)
and hence a remand predicated on such grounds would be
reviewable by mandamus, /d, at 647 & n&8‘, The majority of
federal courts addressing this underlying or related issues
have concluded that such joinder is clearly improper when it
defeats federal jurisdiction?
In fact, the Fifth Circuit has restated the importance of the
question “squarely presented” in this Petition when it recently
declared,” [w]e reserve for decision when the issue is squarely
presented whether a district court may allow joinder of an
non-diverse party who is not indispensable even though such
joinder may result in remand, “IMFC Prof. v Latin Am. Home
Health, 676 F2d 152, 159 n.14 (5th Cir 1982), Additionally, the
position of the Fifth Cireuit, found in footnote eight (8) of In
re Merrimack, was specifically adopted by the Seventh Circuit
when it held that remand based upon discretionary grounds
not found in 28 USC §1447(c) were subject to review by the
Court of Appeals by mandamus and must be vacated. Ryan v
State Bd. of Elections of State of Ill., 661 F2d 1130, 1133 (7th
Cir 1981).
oe
If all the factors are considered, the present matter presents
a much stronger case than that which In re Merrimack sug-
gests warrants issuance of the prerogative writ. First, unlike
36a Petitioner's Petition for Writ of Mandamus
the Court's finding of an ambiguous order in Jn re Merrimack,
here Judge Gilmore explicitly held Dow not to be an indispen-
sable party and further, as the syntax of his ruling indicates,
found such distinctions irrelevant since there existed “strong
equities in favor” of amendment, There is absolutely nothing in
the remand statute, 28 USC §1447(c), even remotely resem-
bling grounds for remand, due to “strong equities” favoring
addition of parties whose non-indispensable presence destroys
otherwise perfectly proper jurisdiction,
It should also be noted that although the District Court did
mention the word “diversity” (it never spoke of jurisdiction) in
its ruling such was a fait accompli. If “strong equities” favored
amendment to destroy diversity, diversity would be “destroyed” —
pure and simple — and the case would “automatically” be re-
manded, There was not a single word of discussion or inquiry
into the fact that the presence of federal jurisdiction and the
providence of removal, by the very terms of §1447(c), are mea-
sured by the state of affairs as to diversity at the time the
Petition for remand was filed. See, eg, St. Paul Mercury
Indemn., Co, v Red Bar Cab, 303 US 283 (1938); In re Carter,
618 F2d 1093, 1101 (5th Cir 1980), cert denied, 450 US 949
(1981); Brown v Eastern States Corp., 181 F2d 26, 28 (4th Cir),
cert denied, 340 US 864 (1950); Perimeter Lighting, Inc. v
Karlton, 456 F.Supp. 355, 359-60 (N.D. Ga. 1978); Wright,
Federal Courts §38, at 134 (2d ed 1970). Neither did the Dis-
trict Court attempt to discredit or distinguish such time
honored authorities, nor did it suggest or attempt to justify
7.
considering post-removal events as within the purview of
§1447(c),
Indeed, by its discussion of allowing the amendment in view
of “strong equities”—this “destroying diversity” “automatically”—
the District Court acknowledged that federal jurisdiction was
entirely proper and present! Cf. Ryan v State Bad. of Elections,
661 F2d 1130, 1333 & n.3 (7th Cir 1981). Absolutely nothing
Petitioner’s Petition for Writ of Mandamus 37a
exists in the ruling of the Court, the Motions or Briefs of the
Plaintiffs, or the arguments of counsel to indicate that Judge
Gilmore was acting, in any fashion, pursuant to §1447(¢) or
that he found that “it appears that the case was removed
improvidently and without jurisdiction when he made his rul-
ing on September 23, 1982. Compare Chesapeake & Ohion Bay
Co. v U.S. District Court, Slip. Op. (6th Cir. No, 82-1155 May
21, 1982) (where the District Judge relied upon the moving
papers of the Plaintiff discussing the improvidence of remand),
Moreover, completely unlike Jn re Merrimack or any other
reported decision, the parties here were actually still diverse at
the time the Court entered its Order of Remand on September
27, 1982. No written Order had been entered at that time (or at
anytime subsequent to Defendant's knowledge) permitting the
Amendment of the Complaint, nor had the Plaintiffs filed
their Amended Complaint. Dow Chemical Company, the alleged
non-diverse Defendant, was not before the District Court even
as a named, but unserved Defendant. Therefore, the District
‘<2
Judge not only improperly found that remand should follow
when “equity” required the addition of a non-diverse, non-
indispensable party, but also, in fact, remanded the case where
all of the parties presently before it were diverse—ie., Plaintiffs
and Chevron. Therefore, even the untenable ground for the
remand—that “equity” required the non-indispensable but non-
diverse Dow Chemical’s presence in the suit—did not in fact
exist when the Remand Order was entered! Even if the Order
granting the Amendment had been entered subsequent to the
Remand Order, such would not only have been irrelevant to
ascertaining the state of diversity at the ‘moment of remand’
but also void for want of jurisdiction, Once the remand was
entered, the District Court lost jurisdiction to the State Courts.
Apparently, the District Judge entered his own Remand
Order on September 27, 1982, (without the participation of
counsel as to whether such comported with his ruling of Sep-
38a Petitioner's Petition for Writ of Mandamus
tember 23, 1982) to clear the matter from his overcrowded
docket by the end of the month (at which time the District
Judges are required to file a monthly report with the Director
of the Administrative Office of the United States Courts, See
generally, 28 USC §604(a)(2), This concern over an over
crowded docket was precisely the rationale utilized by Judge
Hermansdorfer in Thermtron, and the Supreme Court charac -
terized it as “wholly unauthorized grounds” for remand war-
ranting review and vacation by mandamus, Under the author-
ity of Thermtron, Petitioner would submit that the actions of,
the rulings upon, and the Order of Judge Gilmore regarding
-19-
remand are subject to the review of this Court by Writ of
Mandamus.
Your Petitioner is aware that Thermtron Products, Inc, v
Hermansdorfer, is not the most recent decision of the United
States Supreme Court addressing the reviewability of remand
orders by mandamus. In Gravitt v Southwestern Bell Tel. Co,
430 US 723 (1977), the Court apparently ‘narrowed the open-
ing’ created by Thermtron, see also Volvo Corp. of America v
Schmarzer, 429 US 1331 (1976) (in Chamber Opinion of Cir-
cuit Justice Rehnquist), or as Judge Hill said in dissent in
Southwestern Bell, the Court intends to stay on “the narrow
bridge ... constructed in Thermtron.” In re Southwestern Bell
Tel. Co., 542 F2d 297, 298-300 (5th Cir 1976) (Hill J. dissent-
ing), rev'd sub. nom., Gravitt v Southwestern Bell Tel. Co., 430
US 723.
Most of the Court of Appeals, (including this Court) have
taken this as a signal from the Supreme Court that unless “the
order does not clearly rely on reasons other than those permit-
ted under the statute,” i.e., 28 USC §1447(c), “the remand order
cannot be reviewed.” Chesapeake & Ohio Rwy Co. v U.S. Dis-
trict Court, — Slip op. at 2 — (6th Cir, No, 82-1155 May 21,
1982). See also State Farm Mut. Aut. Ins. v Baasch, 644 F2d 94,
96 (2nd Cir. 1981); In re Weaver, 610 F2d 335, 337 (5th Cir
Petitioner's Petition for Writ of Mandamus 39a
1980); In re Greyhound Lines Ine, 598 F2d 883, 884-84 (Sth Cir
1979); In re Merrimack Mut, Fire Ins, Co,, 587 F2d 642, 647
(Sth Cir 1978), See also Levy v Weissman, 671 F2d 766, 769 &
nO (3rd Cir 1982), See also Note, Remand Order Review After
Thermtron, 1977 Tl L. Forum 1086, 1103-04, In doing this, the
- 20 -
Courts of Appeals have taken the curt words of the Supreme
Court in Gravitt to mean that only in the rarified and excep-
tional case where the District Judge neither mentions the s.at-
ute or standards of remand of §1447(c), and thereafter affirm-
atively states grounds for reversal not contained therein, is
an order for remand subject to review under the All Writs
Act, 28 USC §1651, by mandamus.
Some of the Courts have stated it somewhat differently foe-
using in on restrictive language appearing in Thermtron and,
at least to their understanding, adhered to and reiterated in
Gravitt: “if a trial judge purports to remand a case on the
ground that it was remanded ‘improvidently and without
jurisdiction,’ his order is not subject to challenge in the Court
of Appeals ....” Royal v State Farm Fire & Cas. Co, 585 F2d
124, 126 (5th Cir 1982), citing, Thermtron Products Ine, v
Hermansdorfer, 423 US at 343 (emphasis in Royal),
Despite such restrictions and anathemas, however, the
Courts of Appeals subsequent to Gravitt, have, with a concom-
itant frequency, issued writs in the nature of mandamus com-
pelling District Judges to vacate orders of remand. See, e.g.
Levy v Weissman, 671 F2d 776 (3rd Cir 1982); In re Shell Oil
Co,, 631 F2d 1156 (5th Cir 1980); In re Carter, 618 F2d 1093
(5th Cir 1980), cert denied, 450 US 949 (1981); In re Grey-
hound Lines, Inc,, 598 F2d 883 (5th Cir 1978). See also, Ryan v
State Bd. of Elections of State of Ill, 661 F2d 1130 (7th Cir
1981); Merrill, Lynch, ete. v Gayden, 637 F2d 391, 356 n, 9 (5th
Cir 1981); Three J. Farns, Inc. vy Alton Box Bod. Co,, 609 F2d
112 (4th Cir 1979) (mandamus appropriate to vacate vacation
of remand); In re Merrimack Mut. Fire Ins. Co,, 587 F2d 642
40a Petitioner's Petition for Writ of Mandamus
(Sth Cir 1978) (although writ would not lie in case regarding
ambiguous order, clearly improper grounds of remand after
allowing amendment of non-diverse, non-indispensable party
would warrant using writ),
21
Given the convolutions of the state of the law in this area, it
is difficult for litigants and the Court of Appeals to determine
when review by mandamus is authorized and appropriate and
when it is not. The Eleventh Cireuit has recently come up
with a workable and simplified description of what presently
appears to be the limits of the Appeal Courts’ authority:
It thus appears that where we are specifically forbidden
to review action by a distriet judge when the judge is
authorized tq act, if may, nevertheless be our duty to
decide whether or not the action was, indeed, authorized.
Erroneous action taken within authority may not be
corrected; unauthorized acts may be curbed,
Meadows v United States, 665 F2d 1009, 1012 (11th Cir 1982)
(emphasis supplied),
All of the above-referenced authorities, Petitioner would
submit, establish that Judge Gilmore's ruling does not consti-
tute mere erroneous acts committed within the pale of author-
ity, but rather was a wholly unauthorized act affirmatively
predicated on grounds entirely foreign to 28 USC §1447(e),
The District Judge neither cited the remand statute nor did he
purport to act pursuant to or attempt to enumerate grounds
remotely resembling the standard for remand, ie. that the case
was removed improvidently and without jurisdiction, The
grounds he did give for removal, however, were wholly unre-
lated to 28 USC §1447(¢) — ie. that “strong equities” required
addition of a non-diverse, non-indispensable party who, in fact,
was not formally added or before the Court, in any way, at the
time the case was remanded! Moreover, it appears the District
Judge remanded the case in haste to lighten his docket, a
ground explicitly unacceptable by Supreme Court precedent,
Petitioner's Petition for Writ of Mandamus dla
Clearly, therefore, under Thermtron, Gravitt and relevant Court
of Appeals decision, the ruling of the District Judge is review -
able by this Court under the All Writs Act and the Order of
Remand should be vacated.
29.
Il,
THE DISTRICT COURT'S ENTRY OF A FORM
ORDER OF REMAND ON SEPTEMBER 27,
1982 WHICH DID NOTHING MORE THAN RE-
CITE THE WORDS “IMPROVIDENTLY RE-
MOVED” AND “THERE IS NO FEDERAL JURIS-
DICTION,” BUT WHICH IN FACT DID NOT
REFLECT THE CONTENT, SUBSTANCE OR
TENOR OR THE COURT'S RULING OF SEPTEM.-
BER 28, 1982, IS SUBJECT TO REVIEW BY
THIS COURT BY MANDAMUS AND MUST BE
VACATED
Arguendo, this Court rejects the contentions of the Peti-
tioner that the ruling and remand of the District Judge are
subject to review by writ in the nature of mandamus, Peti-
tioner further contends that the entry of an order of remand
by the District Judge on September 27, 1982 which was tho-
roughly dissimilar to the content, substance or tenor of the
Court’s ruling on September 23, 1982 in itself (or in conjune-
tion with those contentions) constitutes a severable and sepa-
rate abuse of discretion reviewable by mandamus. Although it
is respectfully submitted, it is nevertheless forcefully submit-
ted that the September 27, 1982 Order is a sham, or at best an
order entered by gross oversight.
-23-
The Order is a form Order parroting language from the
remand statute, The words, “It appearing that the within case
was improvidently removed to the United States District
Court for the Eastern District of Michigan,” are found as
“boiler plate,” standard form language in the Order, yet there
dla Petitioner's Petition for Writ of Mandamus
is absolutely nothing in the Court's September 23, 1982 ruling,
counsels’ argument or the moving papers of the Plaintiff even
intimating improvident removal. Similarly, standard form lan-
guage “it appearing that there is no federal jurisdiction in the
above-entitled matter” with the words “lacking total diversity”
typed in thereafter, does not comport in the slightest with the
then present posture of the case, the Court’s rulings or even
with Plaintiff's moving papers. (Indeed, Plaintiffs contended
that Dow Chemical had to be served before the case would be
remanded) (A-71 to A-72). The Court, in its ruling, never even
mentioned the word “jurisdiction” — much less the relevant
statute and standard for remand — and only spoke of the “des-
truction of diversity” as a fait accompli.
Lest this characterization lead to the misunderstanding that
this was an erroneous, but nevertheless unreviewable finding
of no jurisdiction, it is essential to note that the Court acknow!1-
edged the presence of diversity jurisdiction prior to consid-
ering the motion to remand! Indeed, if that very admittedly
proper jurisdiction was capable of being “destroyed”, such was
- 24-
only attainable by virtue of the District Judge exceeding his
authority under — 1447(c), and 28 USC Rules 19, 20 and 21, by
ordering amendment to include the non-indispensable, non-
diverse party and thereby, himself, creating a discretionary,
non-statutorily recognized ground for removal. In any event,
the form language of the Order does not, in the least, reflect
the content of the Court's ruling regarding the proper pres-
ence, and then the apparent destruction of diversity jurisdic -
tion by the Court's own actions, Additionally, the Order con-
tains nothing reflecting the real bases for the remand — ie.,
the totally discretionary, and arbitrary finding that “equity”
required the amendment.® Finally, as has been noted above, the
Order claims the case “lacks diversity” when in fact the Order
of Amendment has never been entered. In that respect alone,
more than ministerial oversight or simple err is involved —
Petitioner's Petition for Writ of Mandamus 43a
this hasty entry constituted the Court's attempt, irrespective
of whether Dow was before it, to divest its docket of one more
case, By so acting, the District Court did not merely compound
its err, it implemented one unauthorized act by committing
another.
Ironically, the very grounds the Petitioner asserts consti-
tutes a separate ground warranting the use of mandamus —
the entry of an Order that does not in the least comport with
the District Judge's ruling — is sadly said to be an item which
might preclude review of any of his actions in this matter.
Some of the Courts of Appeals, in dicta, and in recognition
of what is thought to be compelled by Gravitt, have often
stated that a mere recitation of §1447(c), or of the grounds
therein, automatically insulates a remand order from review
- 25 -
irrespective of what the Judge has ruled or based his ruling upon.
See Royal v State Farm Fire & Cas. Co., 685 F2d 124, 126-27 (5th
Cir 1982); In re Merimack Mut. Fire Ins. Co., 587 F2d at 648
(“District Court invocation of §1447(c) will preclude review of
a remand order no matter how clearly erroneous the order
appears in its face”); Robertson v Wall, 534 F2d 63, 65 (5th Cir
1976).
Various scholars have also stated it more vividly, and more
caustically:
[A] district court apparently can insulate its remand
order from any review under Thermtron by mechani-
cally invoking the §1447(c) grounds for remand,
Note, Remand Order Review After Thermtron Products, 1977
Ill. L. forlum 1086, 1106.
Southwestern Bell is particularly disappointing in that
the Supreme Court placed emphasis exclusively on rote
recitation of language and gave no consideration to the
erroneous decision-making process underlying the re-
mand order,
44a Petitioner’s Petition for Writ of Mandamus
Meyers, Federal Appellate Review of Remand Orders: Expan-
sion on Eradication? 48 Miss. L. J. 741, 754 (1977).
Apparently, a remand order which so much as men-
tions “improper removal” will be precluded from review.
Even mandamus will not lie to prevent a judge from
remanding for reasons completely irrelevant to 1447(c)
grounds, as long as his order recites “improper removal.”
Ridle, Federal Courts: Review of the Remand Order, 9 St.
Mary’s L. J. 274, 285-86 (1977).
Petitioner recites this state of affairs and understanding of
the law if only to demonstrate the absurdity of the position. As
irony is within irony, mere recitation of the proposition estab-
lishes its meretriciousness. Courts and scholars find it unpal-
x
atable that the utterance of a talisman by one person can
render the actions of that person, irrespective of the circum-
stances or the extent of arbitrariness, wholly immune from
review or alteration. Moreover, although the “magic word”
understanding of unreviewability might be an educated, but
exaggerated extrapolation of Supreme Court precedents’, it is
apparent that such is merely dicta or conjecture, as the ques-
tion has never been faced full front. That issue however feared
by Justices and Judges, discussed by scholars and eluded to in
footnotes, is squarely presented here — i.e., the reviewability of
a pre-fabricated, form fashion remand order which merely
recites §1447(c) grounds but which, in fact, was predicated or
wholly different and improper grounds.
Justice Rehnquist recited the issue and the answer to it
aptly enough in his dissent in Thermtron:
{W]hat if the district court does state that it finds no
jurisdiction, using the rubric of §1447(c), but the papers
plainly demonstrate such a conclusion to be absurd?
Are potential challengers to such an order entitled to
seek the aid of the court of appeals, first to demonstrate
that the order entered by the lower court was a sham
Petitioner's Petition for Writ of Mandamus 45a
and second to block that order pursuant to today’s deci-
sion. If the Court’s grant of certiorari and order of re-
versal in this case are to have any meaning, it would
seem that such avenues of attack should clearly be open
to potential opponents of orders of remand.
Thermtron Products Inc. vy Hermansdorfer, 423 US at 357
(Rehnquist, J., dissenting).
Scholars who have considered the matter are harmonious
that such a sham order must be reviewable.
-% «
The ineffectiveness of precluding review by evaluating
only the face of a remand order seems clear. If the dis-
trict judge in Thermtron, who remanded because of a
crowded docket, had simply stated in the order that the
case had been “improperly removed,” his action would
have been nonreviewable under the apparent logic of
the per curiam decision in Southwestern Bell. The pur-
pose of mandamus is to correct discretionary abuse. If
such abuse may be precluded from review simply by
masking the remand order as being pursuant to “im-
proper removal,” the avenue of appeal opened in Therm-
tron becomes virtually nonexistent.
Ridle, Federal Courts: Review of the Remand Order, 9 St.
Mary’s L. J. 274, 286 (1977). Indeed, it appears that Judge
Hermansdorfer attempted to convince the Thermtron Court
that his Order was based on §1447(c), and hence by negative
implication, the argument that such an Order is non-review-
able must fail. Brief and Appendix of Respondent at 3, Therm-
tron Products, Inc. v Hermansdorfer, 423 US 336 (1976).
Perhaps the argument would not be so strong, nor the abuse
of discretion so obvious in this case had the District Judge
entered its Order after Presentment proceedings. The parties
would have had an opportunity — albeit perhaps a futile one
— to discuss the terms of the Court’s September 23, 1982 rul-
ing and the intentions of the Court as to how to memoralize
46a Petitioner's Petition for Writ of Mandamus
that ruling in order form. His sua sponte entry of the Order of
Remand on September 27, 1982, however, precluded such from
occurring. The continued efforts of the District Judge to abort
the normal machinations of the adversarial process make the
abuse of discretion inuring in this outrageous Order beyond
peradventure.
Petitioner in making this submission is not unaware that a
difficulty arises as to balancing the statutory language of
- 28 -
§1447(d) and its underlying policy forbidding appellate review,
with ever present need of the Court of Appeals and the
Supreme Court to correct abusive uses and usurpations of
power by District Judges. In this case, however, there can be
no question as to the preponderations of such a balancing. To
foreclose review by mandamus under such circumstances, not
only works to emasculate Thermtron and the effectiveness ‘of
this great prerogative writ to correct injustice, but rewards
such abuse if it is accompanied by hollow recitations. Invaria-
bly, therefore, your Petitioner contends that arguendo the
remand ruling is not reviewable, the entry of this sham Order
of Remand must be corrected by mandamus. Indeed, this idea
has been stated succinctly by yet another scholar joining the
ananimous ranks of those criticizing any rule precluding review
of form or sham remand Orders:
A considerable amount of responsibility must reside in
the wide discretion of a federal district court’s exercise
of remand powers, and certainly must courts will prop-
erly consider the issues and order accordingly. When
the district court errs in its order of abuses its discre-
tion, there is no sound basis for precluding appellate
review. While the potential for delay is the very basis
for limiting appeals, the district judge in Thermtron
who sought to lessen delay was soundly reversed.
Of more importance is the elimination of dissatisfaction
by the general public with our system of jurisprudence,
Petitioner's Petition for Writ of Mandamus 47a
a goal which can best be accomplished by reducing the
possibility for error and increasing the likelihood of uni-
formity of decisions. Congress should seriously consider
repeal or amendment of the removal statutes to allow
appellate review of remand orders. Jn the interrim the
judiciary should, at a minimum, reduce the complexity
of this issue by inquiring through mandamus into the
ground underlying those remands which do nothing more
than recite the “improvidently removed” and “without
- 29 -
jurisdiction” language. Such a policy may result in the
ultimate reduction of delay in the federal courts and
even the elimination of unnecessary litigation. It will
certainly have the salutary consequences of abrogating
the abuses which permeate this area of the law and
ultimately advancing the interests of justice.
Meyers, Federal Appellate Review of Remand Orders: Expan-
sion or Eradication? 48 Miss. L. J. 741, 754 (1977) (emphasis
added). See also Petition of Henneman, 137 F2d 627 (1st Cir
1943) (mandamus will lie to determine if district judge has
passed on all grounds in removal petition in issuing remand).
III.
THE DISTRICT COURT'S CONDUCT IN RELA-
TION TO THE MANNER AND MEANS OF RE-
MANDING THIS ACTION TO THE STATE
COURT SO AS TO DEPRIVE THE DEFEND-
ANT OF THE SUBSTANTIAL FEDERAL RIGHT
OF REMOVAL WITHOUT DUE PROCESS OF
LAW IS SUBJECT TO REVIEW BY THIS
COURT BY MANDAMUS AND THEREBY WAR-
RANTS VACATION OF THE REMAND ORDER
PREDICATED UPON SUCH CONDUCT
Finally, Petitioner must not discuss only the content of the
District Court’s Remand Ruling and Order, but the manner in
48a Petitioner’s Petition for Writ of Mandamus
which it arrived at those results. Your Petitioner submits
there was a breakdown of the adversary processes in relation
to the remand so as to deprive it of the most rudimentary
aspects of due process of law,
Without belaboring this argument with a reiteration of the
undisputable factual scenario discussed above, it is adequate to
state the District Judge, one day after transfer of the case to
his docket and one day after the filing of the Motions to
Amend and for Remand, orally ordered the parties to appear
for a Remand Hearing to be conducted the following day. In
- 30 -
fact, at the time defense counsel was informed of this by
phone, he had yet to receive the Plaintiffs’ moving papers.
Less than twenty four hours later, after having no opportunity
to adequately prepare much less file papers in opposition,
defense counsel appeared for the single purpose of requesting
time to respond. Ignoring this request, the District Judge
Granted the Motion to Amend and for Remand, all within two
(2) days of the filing of those Motions and the assignment of
the case to him, (Indeed, such did not even constitute enough
time for Defendant to constructively receive notice of the
Motions by mail. Fed, R. Civ. P. 6(e)). By acting so impetu-
ously the Trial Judge precluded the Defendant from present-
ing arguments regarding the untimeliness and insufficiency of
the Plaintiffs’ Motions, as well as authorities and arguments to
the effect that the District Courts’ are without authority to so
act. In a haste to exorcise the matter from his docket, the Dis-
trict Judge extracted himself from the adversarial process,
By this abbreviation, he deprived the Defendant of a sub-
stantial right to a federal forum specifically bestowed upon the
Defendant by Act of Congress. 28 USC §1441(a); Thermtron
Products, Inc. v Hermansdorfer, 423 US 336 (1976); 14 C,
Wright, A. Miller, & E. Cooper, Federal Practice & Procedure
§3721 (1976), Or at the very least, he deprived Defendant of
the right to a full and fair hearing in the manner of being
Petitioner's Petition for Writ of Mandamus 49a
deprived of such a right. Our system of jurisprudence finds
such one-sided arguments, truncation of proceedings and ill-
advised short cuts singularly abhorrent, if only because they
-31 -
deprive the system of its adversarial tone, an essential quality
derived through centuries of legal and social evolution.
The policy underlying the modernization of federal pro-
cedure. . . [was] the abandonment or relaxation of res-
trictive rules which prevent the hearing of cases on
their merits,
Jackson v Beech, 636 F2d 831, 835 (D.C. Cir 1980), citing, HLF.
Livermore Corp, v Aktiengesellschaft Gebruder Loepfe, 432 Fd
689, 691 (D.C. Cir 1970), See also Seven Elves, Inc. v Eskenazi,
635 F2d 396, 403 (5th Cir 1981) (truncated proceedings not
favored), Ironically, application of local rules 17(g) and the
Rules of Civil Procedure here would have inhibited the Defend-
ant’s being denied due process because had they been opera-
tive, Defendant could have properly responded to the matters
raised by the Plaintiffs’ Motions, Rather, it was the abandon-
ment of the Rules of fair play by the Court that precipitated
the injury in this context,
The Courts of Appeal have recognized this fundamental
principle when they have vacated dismissals, judgments or
orders based upon improper notice of proceedings. Klapprott v
United States, 335 U.S. 601, 615 (1949), In Buckeye Callulose
Corp. v Bragger Elec, Const., 569 F2d 1036 (8th Cir 1978) the
Court vacated a judgment wherein none of the parties received
notice pursuant to Rule 77(d) from the Clerk in time to pursue
an Appeal. See also Fleming v Gulf Oil Corpo, 547 F2d 908
(10th Cir 1977) (vacation of judgment of dismissal without
proper notice to Plaintiff and improper alteration of the record
- 32 -
subsequent to dismissal by the district judge to include items
not formerly ruled upon); Keegel v Key West & Caribbean
Trading Co,, 627 F2d 372, 374-75 (D.C, Cir 1980) (where trial
50a Petitioner’: Petition for Writ of Mandamus
judge, concerned about his docket, hastily defaulted party,
appeals court set the same aside in recognition of universal
preference for trial on the merits); Wilson v Moore & Assoc.
Inc, 564 F2d 366 0th Cir 1977) (failure to provide 3 days
notice of application for default fatally defective to default
judgment); Fidelity & Deposit Co. of Maryland y USA Form
Hail Pool Ine, 523 F2d 744, cert denied, 425 US 950 (1976)
(proper to vacate order of judgment entered without notice to
diligent attorney who sought to know status of case regularly
and was assured by court that he would be notified in time to
perfect appeal of 12 year old case),
Although these cases arise in the context of vacation or
alteration of final judgments or dismissals, all of these authori-
ties and basic fairness apply with equal force to the abbrevia-
tion of these proceedings.’ Indeed, it can be said that in view of
the District Court’s attempt to avoid review of his conduct by
entering an “insulated order,” it is even more compelling that
the cavalier and hasty treatment afforded Defendant's should
be subject to mandamus review,
If this conduct were not enough to establish the non-
adversarial and unconstitutional characteristics of the District
Judge’s conduct in this matter, one need only look at what
happened subsequent to the Remand Hearing. As noted, Defen-
dant adamantly intended on pursuing Presentment of Order -
33 -
Proceedings (1) in an effort to insure the grounds for remand
that appeared plainly reviewable by mandamus were not ex-
panded upon in an Order so as to preclude review and (2) to
make arguments and present authorities precluded by the
abbreviation of the original hearing, Again, as noted, the Dis-
trict Judge’s eagerness to enter an Order before the end of
September aborted the adversarial process, Had the advocates
been present or permitted to have input as to the Order's form
they would not only have been able to demonstrate how the
record bore absolutely no resemblance to the language of the
Petitioner's Petition for Writ of Mandamus 5la
Order that was entered but also that no order granting that
amendment had ever been entered and that therefore the par-
ties then before the Court were still diverse, Finally, the pro-
cess was again forestalled when the Clerk failed to provide
counsel with a copy of the Remand Order as required by Fed,
R. Civ. P. 77(d), The only way counsel learned of the Remand
Order was by review of the docket sheet in preparation for
this Petition,
In view of the foregoing, it seems obvious the Petitioner
was denied due process in the loss of a substantial federal
right of removal via the District Judge’s conduct. This alone
should permit vacation of the Remand Order by Writ of Man-
damus, if only out of recognition of the notion “that supervi-
sory control of the District Courts [by the court of Appeal] is
necessary to proper judicial administration in the federal sys-
tem.” LaBuy v Howe Leather Co, 352 US 249, 259-60 (1957),
See Swindell-Dressler Corp. v Dumbauld, 308 F2d 267 (3rd Cir
1967) (mandamus used to vacate order when party denied due
process in not being afforded proper hearing). Indeed, the pat-
34 -
ent denial of due process when considered either independ-
ently from, or in conjunction with the grounds in Parts I and
II supra, renders the right of Petitioner to relief by issuance of
the writ clear and compelling.
CONCLUSION
Your Petitioner has presented to this Court the conduct of
the District Judge which it believes to unquestionably warrant
issuance of the Writ of Mandamus to correct. (Indeed this is
the first such Petition which the law firm representing Peti-
tioner has ever sought against a District Judge). In the pro-
cess, your Petitioner has candidly ackowledged the general
unreviewability of such orders by virtue of an Act of Congress
28 USC §1447(d), and also the present state of the law regard-
ing undcr what limited circumstances that statute is not oper-
52a Petitioner's Petition for Writ of Mandamus
ative. Notwithstanding these difficulties, for the reasons dis-
cussed above, this Court is vested with full authority to correct
the wrongs before it. Professor Moore put it aptly when he
noted that “[t]he jurisdiction” of the Court of Appeals, as that
term is used in §1651, must include the power of the Courts of
Appeals to insure that District Courts are in fact Courts and
not schools of solipsism.””
Moreover, the history of the great prerogative writ of man-
damus is said to have its origins in that clause of the Magna
Charter that declares “nulli vendemus, nulli negabimus, aut
differemus rectum vel justitian” — to none will we sell, to
none will we deny, or delay equity or justice. Magna Charta, C).
40, See T, Tapping, The Law & Practice of the High Prerogative
- 35 -
Writ of Mandamus 56 (1853). Indeed, the evolution of the
common law writ of mandamus in England and its advent and
use in this country illustrate that it is not something lightly
limited or abrogated, It is not surprising, therefore, that what
was noted long ago regarding that writ is still apposite today.
“Mandamus or mandatory writs are very ancient, as old as
Edward the First, if not older; and the two main ends of them
are to expedite justice and to prevent oppression in great bodi-
ces of men.” Rex v The Chancellor of Cambridge University
(Dr. Bently’s Case), Fortescue 202, 204; 92 E.R. 818, 819 (K.B.
1723).
Regarding ancient authorities as they are relevant to this
case, perhaps the words of Lord Mansfield, spoken over two
hundred years ago, are most appropriate.
[The Petitioner] has a right to come here for this writ,
this great prerogative writ of mandamus (a remedy
which turns more, in my opinion, upon principle than
upon precedent;) and we ought to grant it, because
there is no other adequate remedy.
Rex v Vice-Chancellor of Cambridge University (Earl of
Hardwicke’s Case), 3 Burr 1648, 1660; 97 E.R. 1027, 1033
Petitioner's Petition for Writ of Mandamus 53a
(1765) (Mansfield, L.J.). This assertion was made in response
to the argument that the matter being considered was more
properly within the province of Cambridge University by the
Statutes of Elizabeth than the Courts — something like statu-
tory unreviewability. Perhaps the concurrence of Lord Mans-
field’s Brother, Mr, Justice Wilmot, most artfully articulated
the notion that AngloAmerican jurisprudence always secures
36
a means — often by mandamus — of remedying judicial or
quasi-judicial abuse,
If there is a clear right in Lord Hardwicke, the Court
ought... to find out a suitable and adequate remedy;
and... even to have made a precedent, if they could not
have found one: for where there is a right, law and jus-
tice require that there should be some remedy or other
Id., (Wilmot, L.J.).
Certainly the Congress intended the writ to be continued to
implement these ancient and noble purposes when it enacted
the All Writs Act, 28 USC §1651. United States v Hagman,
342 U.S, 205 (1952), Neither can its general prohibition against
review of remand orders codified in 28 USC §1447(d) be
construed as emasculating the geat prerogative process of this
Court to correct clearly abusive, indeed unconstitutional behav -
ior of the District Judge simply because such arose in the
Remand context. To do so would be to cripple one of the great-
est means of insuring a sensible and fair administration of jus-
tice and enunciate an interference by Congress (which it never
intended) into Article III functions solely within the preroga-
tive of the Federal Courts.
This case requires review by this Court pursuant to the All
Writs Act in the nature of Mandamus. To turn a phrase,
“strong equities” compel it.
WHEREFORE, Petitioner prays this Honorable Court
54a Petitioner's Petition for Writ of Mandamus
grant its Petition for Writ of Mandamus and the Relief
requested therein.
-97-
RESPECTFULLY SUBMITTED
BUSHNELL, GAGE, DOCTOROFF & REIZEN
BY:
GEORGE EF. BUSHNELL, JR. (P11472)
BY:
NOEL A. GAGE (P13786)
BY:
CARL J. MARLINGA (P17102)
BY:
JOHN K. PARKER (P29563)
Attorneys for Petitioner
3000 Town Center, Suite 1500
Southfield, Michigan 48075
(313) 444-4848
DATED: October 14, 1982
- 38 -
FOOTNOTES
'The Court also permitted the Amendment; thereafter the Plaintiffs filed
their Amended Complaint (A-67 to A-69), Those amendments, as is appar-
ent, are not relevant to this Petition.
*It should be noted that counsel for the Defendant never received a True
Copy of this Order and never knew it had been entered. Hence reference is
made to the Docket Sheet.
'The Motions did find their way to the office of defense counsel's law firm in
the afternoon of September 22, 1982, but did not reach Mr. Marlinga’s desk
until after he had spoken to the clerk. Mail is distributed by the Postal
Service twice daily to the building wherein counsel's offices are located —
once in the morning and once in the afternoon — and correlatively, support
staff distribute the mail twice — once in the morning and once in the after-
noon, Mr. Marlinga obtained the papers with the second, or afternoon mail
distribution on September 22, 1982.
It should also be noted that the constructive notice provisions of Fed. R. Civ.
P, 6(e) would extend the time defense counsel was deemed to have even
received the moving papers until September 23, 1982 (3 days from mailing)
or more likely September 24, 1982 (3 days from filing as Plaintiffs posted
the papers prior to actual filing).
Petitioner’s Petition for Writ of Mandamus 55a
‘Footnote eight (8) of the In re Merrimack case reads as follows:
The Bank argues that even if Smuts and Mc Dowell are not indispensa
ble, it lay within the disrict judge’s discretion to allow their joinder even
though it destroyed diversity. All of the authorities cited supporting this
proposition pre-date Thermtron, see Harper Fin. Corp. v Hanson Oil
Corp. 403 F.Supp. 1405 (W.D. Tenn. 1975): Ingersoll v Pearl Assurance
Co. 153 F. Supp. 558 (N.D. Cal. 1957); 1A Moore's Federal Practice
0.161[1], at 209 (2d ed. 1974); and Thermtron makes it clear that such
discretion is not vested in the district judge. As discussed above, Therm-
tron holds that §1447(c) states the exclusive grounds on which a remand
order may be based. The “improvidently” language of §1447(c) evidently
was not read by the court to vest discretion in the district court. The
Court stated: “We are not convinced that Congress ever intended to
extend carte blanche authority to the district courts to revise the federal
statutes governing removal by remanding cases on grounds that seem
justifiable to them but which are not recognized by the controlling stat-
- 39 -
ute.” 423 U.S, at 351, 96 S. Ct. 1t 593, 46 L.Ed. 2d at 554. Second, prior to
the 1948 revisions of section 1447(c), “improper’ was used rather than
“improvidently.” The Thermtron court considered the substitution of
words in 1447(c) to be of “no moment.” Id. at 350 n.15, 96 S.Ct. at 592, 46
L.Ed.2d at 553-54. While “improvidently” may have connotations of dis-
cretion, “improper” contains no such overtones. Third, that a writ of
mandamus was used to correct the district court error in Thermtron
suggests that the District Court is not vested with discretion under
§1447(c), for traditionally mandamus will not lie to correct an abuse of
discretion but only to order a ministerial act. Work v U.S. ex rel. Rivers,
267 U.S. 175, 177, 45 S.Ct. 252, 69 L.Ed. 561, 562 (1925). We conclude
that a district court may remand a case as being “improvidently”
removed only if one of the statutory, non-jurisdictional requirements for
removal has not been satisfied. See Haelan Laboratories, Inc. vy Topps
Chewing Gum, Inc., 131 F.Supp. 262 (E.D. N.Y., 1955); note 3 supra.
In re Merrimack Mut. Fire Ins. Co., 587 F2d at 647 n. 8.
‘The majority of Federal District Courts and Circuit Courts of Appeal
apparently having addressed the question have held that after a proper
removal (as ascertained at the time of remand), the District Court has no
discretion (and/or that it is improper) to add a non-diverse, non-indis-
persable party and then remand. See, e.g. IMFC Prof v Latin Am. Home
Health, 676 F2d 152, 159 n.14 (5th Cir 1982) (issue should be squarely
addressed); Ryan v State Bd. of Elections, 661 F2d at 1333 & n.3 (no remand
for discretionary grounds); In re Merrimack Mut. Fire Ins. Co., 587 F2d at
647 n.8 (See note 4 & accompanying text supra); Chiodo v General Water-
works Corp., 380 F2d 860, 867 (10th Cir 1967) (additions of even indispersa-
ble party cannot be joined if would destroy the jurisdiction of the court and
if indispersable cannot be joined court should dismiss action); Reynolds v
Wabash R.R. Co., 236 F2d 387 (8th Cir 1956) (no power in federal district
judge to add non-diverse party who would destroy jurisdiction); Thorp v
56a Petitioner's Petition for Writ of Mandamus
Petrola, 81 F.R.D. 513, 515-16 (N.D. W. Va 1979) (not only cannot non-
indispensable parties not be added but neither can non-diverse indispensa-
ble parties be added; construction of explicit language of Rule 19, 20 and 21
control over Rule 15; “if the court were to allow the adding or dropping of
parties pursuant to a motion under Rule 15, which would deprive the court
of subject matter jurisdiction, the policy of Rules 19, 20, and 21 would be
emansulated merely by ignoring it.”); Skinner v American Oil Co. 470
F.Supp. 229, 235 & n.2 (S. D. Town 1979) (attempt to join non-diverse
Defendant following remand irrelevant for purpose of determing whether to
remand; indeed, because of Rule 19 improper to add such a Defendant);
Perimeter Lighting Inc. v Karlton, 456 F. Supp. 355, 359-60 (N.D. G. 1978)
(removability determined at the time of remand petition filing and acknow]-
edges authority prohibiting amendment of non-diverse party after proper
removal); Barrett v McDonald’s of Okla. City, 419 F.Supp. 792, 793 (W.D.
Oklahoma 1976) (Court should ignore addition of non-diverse party by
Plaintiff because removal is viewed at time petition is filed); Harper Fin.
Corp. v Hanson Oil Corp, 403 F.Supp. 1405, 1407 (W.D. Tenn. 1975)
(amendment not permitted to add non-diverse Defendant unless amend-
ment also substantially alters the very nature of the cause of action); Fort
Howard Paper Co. v Affiliated F.M. Ins. Co., 60 F.R.D. 62, 63-64 (E.D. Wis.
1973) (Court must protect Defendant's right to removal and not allow
amendment to include parties whose presence could oust the Court of juris-
diction); Alerander v Lancaster, 330 F. Supp. 341, 343 (W.D. La. 1971)
(attempts to join any non-diverse party after proper removal irrelevant to
remand — must view diversity only at times of removal); Checker Motors
Corp. v Chrysler Corp., 39 F.R.D. 37, 38 (S.D. N.Y. 1965) (to bring in parties
by Amendment, Rule 13(b) requires that there presence not defeat the
Court's jurisdiction); Pacific Gas & Elec. Co. v Fireboard Prod. Inc., 116
F.Supp. 377 (N.D. Cal. 1953) (removal's propriety determined at time of
removal and any conflict in Rule 15 regarding amendment must be consi-
dered with specific language in other rules precluding destruction of juris-
diction, remand to add non-diverse party not allowed). See also Television
Receipt Corp. v Dunkan, 426 F2d 174, 177 (6th Cir 1970) (federal removal
jurisdiction not defeated by events occurring subsequent to commencement
of action).
There are authorities subsequent to Thermtron that have held that under
some circumstances remand subsequent to removal by virtue of the addition
of non-diverse parties is appropriate. Petitioner submits these authorities
are clearly erroneous in view of the fact that Thermtron itself forbids discre-
tionary remand and because none really deal with the explicit language of
Congressionally mandated policy expresed in 28 USC Rule 19, 20 & 21.
Indeed, it would appear that explicit language in Rule 19 regarding indis-
pensable parties states they cannot be added if their presence would
“deprive the Court of jurisdiction over the subject matter.” The only thing
the District Court can do is dismiss the action. Skinner v American Oil Co,
470 F.Supp. 229, 233-34 (S.D. Iowa 1979).
Notwithstanding this, however, the contra authorities are thoroughly inap-
posite here because, first, the District Judge did not make even the slightest
intimation that he was referring to, or relying upon them. Secondly, the
Petitioner’s Petition for Writ of Mandamus 57a
District Judge here explicity relied upon the discretionary ground that
“strong equities” required joinder, while none of the contra authorities have
ever articulated such a discretionary and non-statutory ground for remand
without a thorough weighing of the adverse jurisdictional effects, contra
authorities, and the possibility of collusive jurisdiction. Thirdly, most of the
cases permitting remand have not discussed the indispensable/dispensable
_.
distinction, whereas Judge Gilmore stated that Dow was not indispensable
(and/or that distinction was irrelevant). Soam Corp. v Trame Co., 506
F.Supp. 302 (S.D. N.Y. 1980); Littlefickl v CNA, 475 F.Supp. 887 (C.D. Cal.
1979); Miller v Davis, 464 F.Supp. 458 (D.D.C. 1978). Fourthly, some of the
Courts have said an amendment that defeats diversity should not be
granted unless it also includes a substantial alteration of the nature of the
cause of action something clearly not involved here. Miller v Davis, 464
F.Supp. 458, 460 (D.D.C. 1978); Harper Finc. Corp. v Hanson Oil Co., 403
F.Supp. 1405, 1407 (W.D. Tenn. 1975). Finally, the few courts which have
erroneously concluded that permissive joinder of a non-diverse, non-indis-
pensable party have explicitly predicated their exercise of such discretion-
ary power upon a very careful consideration of whether the requested
amendment is but a collusive means of obtaining return to the forum for-
merly selected by Plaintiff. Desert Emp. Bank & Ins. Co. of No. Am., 623
F2d 1371, 1376 (9th Cir 1980); Shaw v Mumford, 526 F. Supp. 1209, 1215
(S.D. N.Y. 1981).
There is absolutely nothing in this record to establish that Judge Gilmore
considered such important factors. Therefore, even under application of
these authorities Petitioner contents are erroneous — authorities of which
the District Court was totally unaware — and which are at the farthest
edge of discretion’s praceipe, Respondent's actions are not only erroneous,
but clearly abusive of discretion.
®Indeed if the authorities discussed in note 4,5 supra & accompanying text
are considered, an argument can be made that a remand predicated upon
grounds in contravention of the congressionally mandated policies embodied
in 28 USC Rule 19, 10 & 21, as well as 28 USC §1447(c), is a remand predi-
cated in contravention of, and upon grounds wholly different from the
remand statute, 28 USC §1447(c), thereby subject to review.
7Petitioner submits that such a position is also not established by, and
indeed is inconsistent with the Gravitt v Southwestern Bell case — the case
from which it is supposedly to have arisen. There the Trial Judge was
under the mistaken belief that the citizenship of the Defendant was conclu-
sively established by state law so as to make the removal, at the time of
removal, improvident due to incomplete diversity. The Supreme Court there-
by reversed the Fifth Circuit for issuing a Writ of Mandamus stating,
without elaboration, that the District Judge’s Order was plainly within
1447(c) limits. No Order, however, reciting in forum fashion §1447(c)
grounds wholly incongruent with the District Court’s ruling, existed in
Gravitt. Neither did any such order appear in those Court of Appeals cases
which declared in dicta such orders were unreviewable by virtue of Gravitt.
58a Petitioner's Petition for Writ of Mandamus
As a matter of fact, Thermtron (and the Court's recognition of it in Gravitt)
still stands for the fundamental principle of mandamus jurisdiction that “a
traditional use of the writ in aid of appellate jurisdiction has been to confine
- 42 -
an inferior court to Defendants lawful exercise of its prescribed jurisdiction
or to compel it to exercise its authority when it is its duty to do so.” Therm-
tron Products, Inc. vy Hermansdorfer, 423 US at 352; Rocke v Evaporated
Milk Ass’n., 319 US 21, 26 (1943). Unquestionably, when a judge attempts to
gloss over a ruling that is clearly unauthorized by recitation of form lan-
guage that is to legitimize that ruling, such should be subject to review by
mandamus. Hardly a clearer abuse of discretion is conceivable.
Another point is worth noting. It would be a major Congressional encroach-
ment on the inherent Article III powers of the superior federal judiciary to
review by mandamus unauthorized acts of inferior judges, if by virtue of
Acts of Congress such judges could deliberately seek refuge from review of
their actions and the Acts of Congress were said to preempt review by writ
notwithstanding such improper purposes. As Justice Rehnquist noted in
dissent in Thermtron Products, Inc. vy Hermansdorfer, 423 US at 354, the
power of Congress to limit the appellate jurisdiction of a court it has created
is not debatable, Sheldon v Sill, 8 How 441 (1850), but such certainly has no
place in consideration of the Supreme Court's power of review by preroga-
tive writ or otherwise. Such powers (as well as the Court of Appeals super-
visory powers) are founded upon wholly different grounds, i.e., grounds
inherent in Article III and which are self-effectuating.
*Defendant would note that Rule 60(b) relief applies to an “order” as well as
final judgments. Fed. R. Civ. P. 60(b). Moreover, to the extent that the Dis-
trict Court's conduct denies a litigant due process the underlying constitu-
tional principles appearing in the Rule 60(b) cases can be applied per force.
It should also be noted that unlike the due process arguments rejected in a
case involving review of a remand order, Three J. Farms, Inc. v Alton Bor
Board Corp., 609 F2d 112, 116 (4th cir 1979), Petitioner did not have an
‘opportunity here to voice its opposition to the remand motion! Jd. at 116.
There, the Plaintiffs filed a Motion for Remand on August 16, 1978 and
“properly served” the same on defense counsel. Jd. at 114, 116. On August
29, 1978 Defendants filed a Motion for Stay but apparently did not respond
to the Motion for Remand. Nearly a month later, on October 13, 1978, the
District Court entered a Remand Order after apparently conducting a
hearing without defense a counsel. The Fourth circuit said that “[i]t is clear
that the Defendants had an opportunity to voice their opposition to the
remand motion, and their failure to do so, whether due to the Courts inad-
vertence or otherwise, does not, in our opinion, raise any constitutional
questions.” Jd. at 116.
By contrast, Defendant here had less than twenty four hour notice of the
hearing before it was to appear at the hearing. Indeed, the Plaintiffs plead-
ing had barely reached Defendant, and given the constructive operation of
- 43 -
Petitioner's Petition for Writ of Mandamus 59a
Fed. R. Civ. P. 6(e), there would have been yet one more day after the actual
remand hearing before Defendants would have been deemed to have even
received the Motion! It can hardly be said, in this context, that Defendant
failed to properly voice its opposition when it tn fact, had no opportwaity to
do so. Therefore, by parity of reasoning, Three J. Farms buttresses Peti-
tioner’s due process contentions.
*9 J. Moore, Moore’s Federal Practice, Paragraph 9110.28, at 306.
- 44-
CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing Chevron
Chemical Corporation's Petition for Writ of Mandamus together
with the Appendix was served upon the following:
Honorable Herace W. Gilmore
235 Federal Building
Detroit, Michigan 48226
Robert A. Tyler, Esquire
1220 Ford Building
Detroit, Michigan 48226
by depositing same in the United States Mail at Detroit, Mich-
igan on the 14th day of October, 1982.
Further, the original and four (4) copies of this Petition and
Appendix were filed with John P. Hehman, Clerk for the
Sixth Cireuit Court of Appeals on this date by mailing same
via express mail.
EDNA M. LINDSEY
Subscribed and sworn to before me this
14th day of October, 1982
NOTARY PUBLIC
- 45 -
United States District Court
For The Eastern District of Michigan
802 U.S. Courthouse
Detroit, Michigan 48226
October 22, 1982
60a Response
Chambers of
HORACE W. GILMORE
District Judge
(Received October 23, 1982)
Mr. John P. Hehman
Clerk, United States
Court of Appeals
516 U.S. Post Office
& Courthouse
Cincinnati, Ohio 45202
RE: Case No, 82-8063; In Re Chevron Chemical Company,
Petitioner; District Court No. 81-70555
Dear Mr. Hehman:
I have reviewed Chevron Chemical Company’s petition for
writ of mandamus and find it to be without merit. I will not
respond to the legal issues, which I believe are well covered by
28 U.S.C. §1447(d), but I do want to clarify some of the facts in
this case which were not pointed out by the petitioner.
What actually happened here is fairly simple. This case was
transferred to me from Judge Cohn on September 20, 1982,
when Judge Cohn disqualified himself. I immediately received
plaintiff's emergency motion for a protective order (docket
entry No. 64). This motion sought to postpone depositions
scheduled for September 22, 1982. I felt obligated to resolve
this issue as soon as possible.
In the motion, it was plaintiff's position that the deposition
should be adjourned until the motions concerning adding Dow
Chemical as a party could be decided. It was petitioner's opin-
ion that the depositions should not be adjourned. In their
answer to a motion for protective order, the petitioners stated,
“Chevron does object, however, to a wholesalg adjournment of
the depositions until such time that a hearing can be had on
plaintiff's motion to add Dow Chemical as a party.” (emphasis
added).
Response 6la
Given the immediacy of the pending objections and petition-
er’s objection to any adjournment until October 18, I felt that
the best way to resolve the dispute was to decide the issue of
whether to add Dow Chemical as a party. This was the only
effective way to resolve the emergency motion for a protective
order pending before me. Therefore I heard the motion to add
Dow on September 23, 1982.
Mr. John P. Hehman
October 22, 1982
Page 2
At that time, neither party had any objection to this proce-
dure, and, in the emergency motion, plaintiff stated that peti-
tioner was aware of the intent to add Dow as early as July 21,
1982.
There was full oral argument of the motion on September
23, 1982, in which petitioner made all the arguments it now
asserts against adding Dow and against remand. Both parties
were fully heard, and my decision was based upon a full con-
sideration of all arguments. At no time did any party state that
it was unprepared to proceed, and had any party claimed that
it was unprepared to proceed, I would have granted an
adjournment.
After I granted the motion to add Dow, which I felt was
clearly in my discretion because of the claims made by the
plaintiff, diversity was destroyed. I therefore proceeded to
remand the case, as this Court no longer had any jurisdiction.
The reliance of petitioner on Thermtron Products v. Her-
mansdorfer, 423 U.S. 336 (1976), where the judge remanded a
case after stating he was doing so because of an overcrowded
docket, and because plaintiff's right of redress was being
severely impaired, is misplaced. Petitioner offers not the slight-
est basis in fact to establish the relevance of that case here,
nor is there any.
62a Opposition to Petition
I believe that the entire petition is simply an attempt to
avoid the command of 28 U.S.C. §1447(d), which prohibits
review of remand orders by appeal or otherwise.
Yours very sincerely,
/s/ Horace W. Gilmore
US. District Judge
HWGmep
ec: Bushnell, Gage
Doctoroff & Reizen
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
IN RE: CHEVRON CHEMICAL COMPANY,
Petitioner. CASE NO.
rf
RESPONDENT'S OPPOSITION TO
PETITION FOR WRIT OF MANDAMUS WITH
STATEMENT OF RELIEF REQUESTED
The Respondents, MARIE E. MUNN and GEORGE A.
MUNN, through their attorneys, BLEAKLEY & TYLER,
P.C., hereby declare their opposition to the Petition For Writ
of Mandamus and request this Court to deny said Petition,
thereby allowing the September 27, 1982 Order of Remand to
stand, as issued by the Honorable Horace W. Gilmore, United
States District Judge for the Eastern District of Michigan, in
the case of MARIE E. MUNN and GEORGE A. MUNN vs.
CHEVRON CHEMICAL COMPANY, civil action number
81-70555, and further allowing this matter to remain in the
Wayne County Circuit Court where it was originally filed.
STATEMENT OF FACTS
Respondent agrees with the opening remark of Petitioner in
its recital of the facts: The facts pertinent to Chevron’s Peti-
Opposition to Petition 63a
tion are painfully simple. This is a product’s liability action in
which it is alleged that products manufactured by defendant
Chevron caused numerous lung abnormalities in plaintiff
George A. Munn, including the terminal carcinoma from which
Mr. Munn died. On July 21, 1982, the deposition of Chevron’s
employee, Dwight K. Maloney, was taken. At that deposition
Mr. Maloney testified that the products in controversy con-
tained a compound known as “Silvex”, manufactured for Chev-
ron by Dow Chemical Company, a corporation with its princi-
pal place of business in the State of Michigan. Mr. Maloney
further testified that Silvex contained a substance known as
Dioxin, a chemical known to be carcinogenic to human beings
and animals.
Prior to this deposition, plaintiffs had forwarded interroga-
tories to defendant Chevron. These interrogatories requested
information concerning suspected carcinogens in the subject
products. Defendant Chevron replied that neither the subject
products, nor components thereof, were suspected of being
carcinogenic. Prior to the deposition testimony of Mr. Maloney,
plaintiffs were unaware that Dioxin was contained in defend-
ant’s products or that Dow Chemical Company was involved
in the manufacture of defendant’s products.
Subsequently, plaintiffs filed a Motion For Leave To Amend
for the purpose of adding Dow Chemical Company to the law-
suit. On September 27, 1982, the Honorable Horace W. Gil-
more of the United States District Court for the Eastern Dis-
trict of Michigan granted said Motion. For the reason that
Dow Chemical Company is a corporation with its principal
place of business in the State of Michigan, Judge Gilmore
remanded the lawsuit to the Wayne County Circuit Court
where it had been originally filed. The addition of Dow Chemi-
cal Company destroyed the diversity of citizenship upon which
defendant Chevron’s Removal Petition was grounded ‘This
lawsuit involves no “federal questions”.
6ta Opposition to Petition
ARGUMENT
Since the case was lacking both the diversity of citizenship
and federal questions necessary for exercise for subject matter
jurisdiction in the Federal District Court, Judge Gilmore's
Order of Remand was proper.
Mandamus is an extraordinary remedy utilized to compel the
performance of a public official’s ministerial duty where the
movant has a clear and undisputable right to the issuance of
such a writ. No new rights can be acquired through such a
writ, the purpose of which is to enforce rights already vested.
Will v United States, 389 U.S. 90 (1967). In order to grant a
Writ of Mandamus the movant must establish a clear right to
the relief requested, a plainly defined duty on the part of the
public official to perform the act in question and the unavaila-
bility of other adequate relief. Holmes vs. United States Board
of Parole, 541 F.2d 1343 (7th Cir. 1976). A Writ of Mandamus
is to issue only in extraordinary circumstances amounting to a
“judicial usurpation of power”. Kerr v. United States District
Court, Northern District, California, 426 U.S. 394 (1976). Judge
Gilmore’s Order of Remand was couched in the only terms
provided for in 28 U.S.C. 1447(c). It is clear, however, that the
Court had no choice but to remand the case to state court once
9
it allowed for the amendment adding a party destroying diver-
sity jurisdiction. Wallace vs. Knapp-Monarch Company, 234
F.2d 853 (8th Cir. 1956); Highway Construction Co, vs. MeClel-
land, 15 F.2d 187 (8th Cir. 1926), cert. den, 273 U.S. 765 (1927).
Under settled Federal Law it is evident that the exercise of a
sound discretion in the District Court may permit a new party
to be added even though its citizenship destroys diversity and
requires a remand. Littlefield vs. Cas. Co. 475 F. Supp. 887
(C.D. Calif. 1979); Harper Financial Corp. vs. Hansom Oil
Corp., 403 F. Supp. 1405 (W.D. Tenn. 1975); Ingersoll vs. Pearl
Assurance Co., 153 F. Supp. 558 (N.D. Calif. 1957). As the peti-
tioner points out, the instances in which the amendment to
Opposition to Petition 65a
add diversity destroying parties have typically been kept to a
minimum. Generally, there are two justifications for the per-
mission of such an amendment after removal. Petitioner has
identified only one of those, that being the addition of an
indispensable party which destroys diversity of citizenship.
The other instance in which such an exercise of discretion is
justified is when there are strong equities in favor of the prof-
fered amendment. Ingersoll vs. Pearl Assurance Co. 153 F.
Supp. 558 (N.D. Calif. 1957); 1A Moore’s Federai Practice
$56.07 (2d ed. 1982). The Honorable Judge Gilmore's reference
to the “strong equities” favoring amendment here, although
criticized by the Petitioner as being unfounded, is indeed based
upon the law and accepted practices of the Federal District
Bench.
Since the Court’s decision with respect to amendment is dis-
cretionary, and since that discretion was properly exercised in
this instance, there is no basis for the issuance of a Writ of
Mandamus. For the reasons stated above, the Respondent
respectfully urges this Court to deny the Petition for Writ of
3.
Mandamus as sought by the Chevron Chemical Company.
Respectfully submitted,
BLEAKLEY & TYLER, P.C.
BY:
ROBERT A. TYLER (P 25404)
and
BY:
STEVEN M. HICKEY (P 33142)
Attorneys for the Respondents
Marie E. Munn and George E. Munn
1220 Ford Building
Detroit, Michigan 48226
(313) 961-4400
DATED: 10/29/82
oe
66a Alternative Petition Writ of Mandamus
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1982
NO.
IN RE: CHEVRON CHEMICAL COMPANY,
Petitioner,
/
ALTERNATIVE PETITION FOR WRIT
OF MANDAMUS WITH STATEMENT
OF RELIEF REQUESTED
NOW COMES Petitioner, CHEVRON CHEMICAL
COMPANY, by and through its attorneys, BUSHNELL,
GAGE, DOCTOROFF & REIZEN, and Petitions this Honor-
able Court to either, A) issue a Writ of Mandamus to the
United States Court of Appeals for the Sixth Cireuit compel-
ling it to direct the Respondent, THE HONORABLE
HORACE W. GILMORE, United States District Judge for
the Eastern District of Michigan, 1) to vacate his Order of
September 27, 1982, remanding the case of Marie E. Munn and
George E. Munn v Chevron Chemical Company, Civil Action
No. 81-70555, to the Wayne County Cireuit Court and 2) to
cither restore said action to the docket of the United States
District Court for the Eastern District of Michigan or to
dismiss it altogether; or alternatively to B) issue the Writ of
Mandamus directly to Respondent compelling him to do the
same,
This Petition is brought pursuant to 28 USC §1651 or
otherwise and Rule 27 of this Court. As grounds and reasons
for why the writ should issue, Petitioner incorporates by
reference those grounds asserted as justifying this Court
issuing a writ of certiorari in the Petition for a writ of
Alternative Petition Writ of Mandamus 67a
certiorari filed contemporaneous herewith and to which this
Petition is offered in the alternative.
RESPECTFULLY SUBMITTED,
BUSHNELL, GAGE, DOCTOROFF & REIZEN
BY:
GEORGE E. BUSHNELL, JR. (P11472)
BY:
NOEL A. GAGE (P13786)
BY:
CARL J. MARLINGA (P17102)
BY:
JOHN K. PARKER (P29563)
Attorneys for Petitioner
3000 Town Center, Suite 1500
Southfield, Michigan 48075
(313) 444-4848
DATED: January 10, 1983
(THIS PAGE INTENTIONALLY LEFT BLANK)
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.