# Opposition — Martin Steel Corp. v. United States District Court for the District of Minnesota > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1551%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition - **Published:** January 1, 1984 - **Citation:** 467 U.S. 1227 ## Text No. 83-1682 IN THE Supreme Court of the United States OCTOBER TERM, 1983 MARTIN STEEL CORPORATION AND LLOYD O. SHAWBER, Petitioners, < 7 1 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 Those unpublished orders, in Jn re Martin Steel Corporation and Lloyd O. Shawber, No. 83-2668, and In re Industrial Fasteners, Inc., No. 83-2706, dated January 30 and February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. 2 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. (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 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. 8 (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 4 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. 7 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. 8 CONCLUSION For these reasons, the petition for a writ of certiorari should be denied. Respectfully submitted, 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1551%3A2. Public record. Not legal advice.