Opposition — Herzog v. First National Bank of Boston

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:

IN THE

Supreme Court of the Anited States

OcTOBER TERM, 1982

No. 82-1487

ROBERT P. HERZOG, RECEIVER

Petitioner,

v.

THE FIRST NATIONAL BANK OF BOSTON,

Respondent.

ON PETITION For WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FoR THE First CIRCUIT

MEMORANDUM OPPOSING CERTIORARI

WILLIAM S. EGGELING

Ropes & Gray

225 Franklin Street

Boston, Massachusetts 02110

(617) 423-6100

Counsel for Respondent

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1982

No. 82-1487

ROBERT P. HERZOG, RECEIVER

Petitioner,

Vv.

THE FIRST NATIONAL BANK OF BOSTON,

Respondent.

ON PETITION FoR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

For THE First CIRCUIT

MEMORANDUM OPPOSING CERTIORARI

The Court of Appeals for the First Circuit applied the correct

legal standard — abuse of discretion — to review the decision of

the district court. This standard of review has been expressly com-

manded by this Court. National Hockey League v. Metropolitan

Hockey Club, Inc., 427 U.S. 639, 642 (1976). There is thus no

conflict between the only legal issue presented by the decision of

the First Circuit and any decision of this Court. See also Insurance

Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 102

S.Ct. 2099, 2106-07 (1982) (disposing of petitioner’s claim of a

2

conflict with Societe Internationale v. Rogers, 357 U.S. 197

(1958) ). Further, there is no conflict between the decision of the

First Circuit and that of any other Court of Appeals. See, e.g., In

re Fine Paper Antitrust Litigation, 685 F.2d 810, 823 (CA 3 1982);

Marshall v. Segona, 621 F.2d 763, 766-67 (CA 5 1980); Brown

v. McCormick, 608 F.2d 410, 414 (CA 10 1979); Dellums v. Pow-

ell, 566 F.2d 231, 235 (CA DC 1977). Petitioner’s asserted con-

flicts with the law of these Circuits reflect no more than differing

factual assessments in different cases. All, moreover, were de-

cided prior to National Hockey League.

The Court of Appeals correctly applied the abuse of discretion

standard to the facts in the record on appeal. Petitioner distorts

selected parts of the opinion below in an attempt to suggest the

appearance of confusion in the ratio decidendi. No such confusion

exists, however, as perusal of the First Circuit’s complete opinion

will demonstrate. All petitioner’s contentions are in any event

entirely fact-specific. They thus present no issues appropriate for

the exercise of this Court’s certiorari power.*

There is an additional reason why issuance of the writ should

not be contemplated here. Contrary to the assertion at p. 3 of the

petition, the claims of ‘the Overmyer entities’’ have been fully

presented in a trial. That trial, which took over seven weeks,

resulted in a 116 page decision in favor of the respondent! Hadar

Leasing International Co. v. D. H. Overmyer Telecasting Co. (In

re D.H. Overmyer Telecasting Co., Inc.), 23 B.R. 823 (Bankr.

*Because the petition is facially frivolous, we have not addressed the

numerous errors contained therein. For example, all the statutory cites

and the argument thesis advanced at pp. 7-10, are simply inapposite.

The D.H. Overmyer Co., Inc. (Ohio), Chapter XI bankruptcy proceed-

ings were commenced in 1973, and are therefore governed by the pro-

visions of the Federal Bankruptcy Act, not the 1978 Bankruptcy Code

cited by petitioner. See Pub. L. No. 95-598, § 403(a), 92 Stat. 2549,

2683 (1978).

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N.D. Ohio 1982). That decision has thus completely vitiated the

claims which petitioner asserts remain unresolved, and has effec-

tively mooted the sole reason advanced by petitioner for seeking

further review in this Court.

The petition should be denied.

Respectfully submitted,

WILLIAM S. EGGELING

Ropes & Gray

225 Franklin Street

Boston, MA 02110

(617) 423-6100

Counsel for Respondent

April 1, 1983

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