Opposition — Martin Steel Corp. v. United States District Court for the District of Minnesota

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No. 83-1682

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

MARTIN STEEL CORPORATION AND

LLOYD O. SHAWBER,

Petitioners,

OWATONNA ELEVATOR COMPANY,

Respondent

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

RESPONDENT'S BRIEF IN OPPOSITION

WAYNE FARIS

Counsel for Respondent

Owatonna Elevator Company

JEROME A. MIRANOWSKI

PETER B. KNAPP

OPPENHEIMER, WOLFF,

FOSTER, SHEPARD AND

DONNELLY

1700 First Bank Building

Saint Paul, Minnesota 55101

(612) 227-7271

224-7631 — Review Publishing Ce., 2 F. 6th K., St Paul, Mim. 55102 — 224-7631

QUESTION PRESENTED

Whether the Eighth Circuit Court of Appeals abused its

discretion in denying mandamus and finding that the lower

court’s remand order was within the bounds of 28 U.S.C.

51447 (d), and hence not reviewable.

INDEX

Question Presented

Statutory Provisions

Statement Of The Case

Reasons Why The Writ Should Be Denied

Conclusion C oP en. ee

TABLE OF AUTHORITIES

Cases:

Briscce v. Bell, 432 U.S. 404 (1977)

Gravitt v. Southwestern Bell Tel. Co.,

(per curiam) 430 U.S. 723 (1976)

Irving Trust Co. v. Century Export & Import,

464 F.Supp. 1232 (S.D.N.Y. 1979)

Kerr v. United States, 426 U.S. 394 (1976)

Thermtron Products, Inc. v. Hermansdorfer,

423 U.S. 336 (1976)

Volvo Corp. v. Schwarzer, 429 U.S. 1381 (1976)

Statutes:

28 U.S.C. 51446 (b)

28 U.S.C. §1447(c) and (d)

2.4.66

Page

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

NO. 83-1682

MARTIN STEEL CORPORATION AND

LLOYD O. SHAWBER,

Petitioners,

vs.

OWATONNA ELEVATOR COMPANY,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

RESPONDENT’S BRIEF IN OPPOSITION

The Respondent Owatonna Elevator Company respectfully

requests that this Court deny the petition for writ of certio-

rari, seeking review of the Eighth Circuit’s orders denying

mandamus. Those unpublished orders, in Jn re Martin Steel

Corporation and Lloyd O. Shawber, No. 83-2668, and In re

Industrial Fasteners, Inc., No. 83-2706, dated January 30 and

February 2, 1984, are set out in full in the Appendix to the

Petition for Certiorari.

1 Owatonna Elevator Company is a Minnesota Corporation with its

principal place of business in Owatonna, Minnesota. Owatonna

Elevator has no subsidiaries or affiliates, nor is it owned by a

parent company.

STATUTORY PROVISIONS

28 U.S.C. §1446. Procedure for removal.

(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 defen-

dant, whichever period is shorte™.

If the case stated by the initial pleading is not re-

movable, a petition for removal may be filed within

thirty days after receipt by the deferdant, through

service or otherwise, of a copy of an ariended pieading,

motion, order or other paper from which it may first be

ascertained that the case is one which is or has become

removable.

June 25, 1948, c. 646, 62 Stat. 989; May 24, 1949, c.

139, §88, 63 Stat. 101; Sept. 29, 1965, Pub.L. 89-215, 79

Stat. 887.

28 U.S.C. §1447. Procedure after removal generally.

that the case was removed improvidently and without

jurisdiction, the district court shall remand the case,

and may order the payment 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 otherwise, 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.

As amended May 24, 1949, c. 139, §84, 63 Stat. 102;

July 2, 1964, Pub.L. 88-352, Title IX, §901, 78 Stat. 266.

STATEMENT OF THE CASE

On August 21, 1981, Owatonna Elevator Company, the

plaintiff in the underlying action, brought suit in Steele

County District Court, Third Judicial District, State of Min-

nesota, against Petitioner Martin Steel Corporation, as well

as other diverse and non-diverse defendants. In January of

1983, plaintiff filed an Amended Complaint naming additional

diverse and non-diverse defendants, including Petitioner Lloyd

O. Shawber.

Owatonna Elevator reached settlement, in late August and

early September, with two defendants who were Minnesota

residents. On September 12, 1983, all parties were served with

a motion for dismissal of these two defendants, notifying all

parties of the settlement. Two days later, settlement was

reached with the remaining non-diverse defendants. That

same day, September 14, the attorney for these remaining

non-diverse defendants notified Petitioners’ attorney of this

settlement on the record at deposition. Over thirty days later,

on October 17, Martin Steele, Lloyd O. Shawber, and the

other defendants filed a petition for removal. A second peti-

tion was filed on November 15.

On November 18, 1983, the Honorable Edward J. Devitt

issued an order, sua sponte, remanding the action to state

court. Judge Devitt based that order on the untimeliness

of the petition, as well as considerations of comity. Petitioners

sought a writ of mandamus from the Eighth Circuit vacating

the remand order. That writ was denied. The Eighth Circuit

found that the remand order was based on the untimeliness

of the removal petition, and hence the remand order was not

reviewable.

Martin Steel has now filed this petition for writ of certio-

rari, seeking for a second time review of Judge Devitt's

remand order.

REASONS WHY THE WRIT SHOULD

BE DENIED

This Petition does not comport with the considerations

governing review on certiorari set out in Rule 17 of this

Court. The Petition raises no important question of federal

law which has not been, but should be, settled by this Court.

On the contrary, this Court has very clearly mapped out the

bounds for review of remand orders in Thermtron Products,

Inc. v. Hermansdorfer, 423 U.S. 386 (1976); Volvo Corp. v.

Schwarzer, 429 U.S. 13881 (1976); and, Gravitt v. South-

western Bell Tel. Co., (per curiam), 480 U.S. 728 (1976).

Furthermore, the Petitioner does not contend that the Eighth

Circuit has so far departed from the accepted and usual

course of judicial proceedings to call for review by this Court.

Rather, Petitioner seeks certiorari on the grounds that the

circuit court’s denial of mandamus violated the Congressional

intent of 28 U.S.C. §1447 as expressed in this Court's decision

in Thermtron. In point of fact, the Eighth Circuit's denial of

mandamus was in accord with both the letter and spirit of

the Thermtron opinion.

In Thermtron, this Court held that 28 U.S.C. §1447(d) did

net preclude an appellate court from issuing a writ of man-

damus if a district judge has remanded a case wholly on

grounds that he had no authority to consider. Thermtron does

not provide for unfettered review of cvery remand order not

expressly hased on the statutory grounds; nor does Thermtron

establish a right to appellate jurisdiction to compel an un-

ambiguous statement of the grounds for remand. All Therm-

tron does is chart a narrow exception to t' .2ntury-old rule

of law that remand orders are not reviewable by appeai or

writ.

The parameters of the Thermtron holding were more clearly

demarcated in Volvo, Gravitt, and again in Briscoe v. Bell,

482 U.S. 404 (1977). In Gravitt, the court ruled that Therm-

tron permitted review of only those remand orders issued on

grounds wholly different from those upon which §1447(c)

permits remand.” Gravitt, 430 U.S. at 723. Similarly, the

Court in Briscoe, referring to the decisions in Thermtron and

Gravitt, stated “where the [remand] order is based on one

of the enumerated grounds, review is unavailable no matter

how plain the legal error in ordering the remand.” Briscoe,

482 U.S. at 414 n.13. In Volvo, Justice Rehnquist, denying a

motion for the stay of a remand order, rejected the applicant’s

argument that the district court, having specifically found

jurisdiction over a few members of the plaintiff class, er-

roneously remanded the entire action. Justice Rehnquist

stated :

Applicant's position would mean that any allegedly er-

roneous application of §1447(c) would be reviewable by

writ of mandamus, leaving the §1447(d) bar extant only

in the case of allegedly proper applications of §1447(c),

a reading too Pickwickian to be accepted, and contrary

to the clear language of Thermtron.

Id., 429 U.S. at 1888 (footnote omitted).

The Eighth Circuit’s denial of mandamus in this action

follows the clear path of law mapped out in Thermtron,

Gravitt, and Volvo. The district court order cited two grounds

for the remand, the untimeliness of the petition and concerns

of comity. Courts uniformly consider the timeliness of the

petition in determining whether a case has been improvidently

removed. See, e. g., Irving Trust Co. v. Century Export &

Import, 464 F.Supp. 1232, 1239 (S.D.N.Y. 1979). A determina-

‘ion that a case has been improvidently removed due to a

failure to comply with the §1446(b) time limits, whether

erroneous or not, cannot be reviewed by writ or appeal.

In denying mandamus, the Eighth Circuit expressly de-

termined that the case had been remanded because it was

not removed in a timely fashion, and as such the remand order

was not reviewable. Contrary to Petitioner’s assertions, the

appellate court’s denial was in complete accord with this

Court's decisions. Failure to comply with the applicable time

limits was sufficient grounds to justify remand in and of

itself. As the circuit court noted, and as Gravitt held, review

is permitted of only those remand orders issued “on grounds

wholly different” from those permitted by §1447(d).

Noting the lower court’s concerns with the timeliness of

the removal petition, the circuit court determined the remand

was based on these concerns and properly concluded the

order was not reviewable. The propriety of this conclusion

does not warrar* review by this Court. As stated in Kerr v.

United States, 426 U.S. 394, 403 (1976), the issuance of a

writ of mandamus “is in large part a matter of discretion

2 Even if the remand order had beer based solely on concerns of

comity, it would still fall within the permissible grounds for

remand set out in §1447(c). Unlike the docket considerations in

Thermtron, concerns of comity are implicit in the question of

whether a court should exercise jurisdiction.

with the court to which the petition is addressed.” The Eighth

Circuit’s denial of mandamus in this action was proper and

in complete accord with this Court’s decisions; the denial

cannot justifiably be termed an abuse of discretion.

Petitioners contend that the Eighth Circuit’s denial of

remand is somehow at odds with Congressional intent as ex-

pressed in Thermtron. This contention is, at best, disingen-

uous. As this Court made clear in Thermtron, Congress

drafted the removal and remand statutes as it did “in order

to prevent delay in the trial of remanded cases by protracted

litigation of jurisdictional issues.” Thermtron, 423 U.S. at 351.

Yet Petitioner’s procedural circumventions and repeated at-

tempis to force review of the unreviewable have thwarted

congressional intent. For most of the last six months, this

case, which was originally scheduled for trial in state court

this past January, has been lost in a tangled thicket of

jurisdictional issues.

In the final analysis, however, the issues raised in the

Petition si:nply are not important enough to justify review

by this Court. Any clarisication needed of the Thermtron

decision was made in Gravitt, Volvo, and Briscoe. Moreover,

were this Court to note certiorari jurisdictio’:, hear the issue

on its merits, and reverse the court of appeals, only the parties

to this litigation would be effected. The question presented

in the Petition has already been answered, anc it requires no

further response from this Court.

CONCLUSION

For these reasons, the petition for a writ of certiorari

should be denied.

Respectfully submitted,