Opposition Brief — Things Remembered, Inc. v. Petrarca

FILED

APR 6 1995

No. 94-1530

TCEERK

Supreme Court, U.S.

q

In The

Supreme Court of the United States

October Term, 1994

THINGS REMEMBERED, INC.,

Petitioner

Vv.

ANTHONY A. PETRARCA,

Respondent

Petition for Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

John C. Weisensell, Counsel of Record

Andrew R. Duff

Jack Morrison, Jr.

AMER CUNNINGHAM BRENNAN CO., L.P.A.

Sixth Floor, Society Building

159 South Main Street

Akron, Ohio 44308-1322

(216) 762-2411

Attorneys for Respondent

Anthony A. Petrarca

The Victor Printing & Publishing Co. Akron. Ohiw (216) 945 40490

e is

QUESTION PRESENTED FOR REVIEW

Whether an order of a District Court

remanding on jurisdictional grounds a

case which had been removed under 28

U.S.C. § 1446 is reviewable by the Court

of Appeals.’

*Plaintiff-Respondent Petrarca has restated the

Question Presented for Review based upon Petrarca's

position, as set forth in greater detail infra, that

by not appealing from Bankruptcy Judge Harold White's

holding that the "bankruptcy removal" was not timely,

Petitioner has waived its right to seek further review

of that issue even if the District Court remand Order

is appealable. Further, it is Petrarca's position that

given the statutory language of §§ 1447 and 1452, this

case was Clearly remanded on jurisdictional grounds

under § 1447 and not under § 1452 as Petitioner contends.

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW...

TABLE OF CONTENTS .. ++ +e«ee-.

TABLE OF AUTHORITIES .......

STATUTES INVOLVED IN THE CASE...

STATEMENT OF THE CASE ...... .»

SUMMARY OF THE ARGUMENT ..... .

ARGUMENT ..++eseseees8 es ees s

I. THIS COURT SHOULD DENY

TRI'S PETITION BECAUSE

WHEN TRI FAILED TO APPEAL

THE BANKRUPTCY COURT

ORDER, TRI WAIVED THE

ARGUMENT IT INTENDS TO

ASSERT IF THIS COURT

GRANTS THE PETITION. .... .

II. THIS COURT SHOULD DENY

TRI'S PETITION SINCE

THE REMAND CLEARLY WAS

NOT "ON EQUITABLE GROUNDS”

AND IS THEREFORE CLEARLY

NOT "AN ORDER ENTERED

UNDER 28 U.S.C. § 1452(b).". .

IiIl. THIS COURT SHOULD DENY

TRI'S PETITION SINCE IT

HAS RECENTLY REFUSED TO

GRANT A PETITION FOR WRIT

OF CERTIORARI SEEKING

REVIEW OF ISSUES SIMILAR

TO, IF NOT IDENTICAL TO,

THOSE ISSUES PRESENTED

IN THIS CASE. ... « «© « « «

ii

15

- 20

IV. THIS COURT SHOULD DENY

THE PETITION BECAUSE THE

CONFLICT IN THE CIRCUITS

WHICH TRI PERCEIVES DOES

NOT IN FACT EXIST. ee eee e« 62

V. THIS COURT SHOULD DENY

THE PETITION FOR THE

REASON THAT THERE IS

ALREADY EXISTING UNITED

STATES SUPREME COURT CASE

LAW DECIDING THE ISSUE

FRAMED BY PETITIONER. ..... 25

Ee a ; |

CERTIFICATE OF SERVICE ....... 30

iii

TABLE OF AUTHORITIES

CASES

Aetna Life Ins.

Co. v. Haworth,

300 U.S. 227 (1937),

reh. den. 300 U.S. 687 (1937)

Browning v. Navarro,

743 F.2d 1069

(Sth Cir. 1984)

Daleske v. Fairfield

Communities, Inc.,

17 F.3d 321

(10th Cir. 1994).

Daleske v. Fairfield

Communities, Inc.,

a

128 L.Ed. 2d 461,

114 S.Ct. 1832 (1994)

Gravitt v. Southwestern

Bell Telephone Co.,

430 U.S. 723 (1977)

Mercer v. Theriot,

377 U.S. 152 (1964),

reh. den. 377 U.S. 973 (1964)

Michel v. Louisiana,

350 U.S. 91 (1955)

Missouri, Kansas & Texas

R. Co. v. Ferris,

179 U.S. 602, 606 (1900) ...

iv

22, 23,

18

24

21

21

26

19

15

18

National City Bank v.

Coopers and Lybrand,

802 F.2d 990

[ir Ge MEE 6 «© 6 0 6 6 6 By Oe ae

In re: National Developers,

Inc. 803 F.2d 616

[amu Gee Beep cess «ese « O65

North Carolina v. Rice,

fF - ™ § 8 3 eee ee ee ee ee ee

Pacor, Inc. v. Higgins,

743 F.2d 984

(Jee Case. 3906) « es © @ © ee oe «hy oe

Pennsylvania R. Co. v.

Illinois Brick Co.,

297 U.S. 4467 (1936) . . - «© © © © e «© DL

Thermtron Products

Inc. v. Hermansdorfer,

423 U.S. 336 (1976) ... 13, 25, 26, 27

United States v. Rice

Bae Gals Fee Gawee) « & © © © 0 « SB BO

United States v. Socony-

Vacuum Oil Co., Inc.,

Dee Gene See teeeeep ew Be ew we ww ew oe BG

Volvo of America Corp. v.

Schwarzer

Gae Wes Bowe CAGTOls «+ 0 oe « 88, OO BF

STATUTES

Y aS ee D>: ee ee ee ee a ee

Vv

28 U.S.C. § 1334...

28 U.S.C. § 1463 . « «

28 U.S.C. § 1446 .

28 U.S.C. § 1447. .

28 U.S.C. § 1452. .

RULES

Bankruptcy Rule 9027 .

vi

Page

ee

j*e *s ¢°-8

i, vii-xii, 5

7, Be B82 AS

vii. G@ Da Oe OF

20, 21, 26, 27

vai, Ds GBs Bs Be

iS, 17. 19. @&

a1, ae Bee OF

— . §

STATUTES INVOLVED

IN THE CASE

Respondent, Anthony A. Petrarca,

recites here only 28 U.S.C. § 1446, not

included by Petitioner in this section of

the Petition for Writ of Certiorari,

although Petitioner did recite in their

entirety the other Statutes involved in

the case 28 U.S.C. §§ 1447 and 1452.

§ 1446. Procedure for removal

(a) A defendant or defendants

desiring to remove any civil action

or criminal persecution from a State

court shall file in the district

court of the United States for the

district and division within which

such action is pending a notice of

removal signed pursuant to Rule 11

of the Federal Rules of Civil

Procedure and containing a short and

plain statement of the grounds for

removal, together with a copy of all

process, pleadings, and orders

served upon such defendant’ or

defendants in such action.

(b) The notice of removal of a

civil action or proceeding shall be

vii

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

notice of 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,

except that a case may not be

removed on the basis of jurisdiction

conferred by section 1332 of this

title more than 1 year after

commencement of the action.

viii

(c)(1) A notice of removal of

a criminal prosection 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 court may enter an order

granting the petitioner leave to

file the notice at a later time.

(2) A notice of 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

notice shall constitute a waiver of

such grounds, and a second notice

may be filed only on grounds not

existing at the time of the original

notice. For good cause shown, the

United States district court may

grant relief from the limitations of

this paragraph.

(3) The filing of a notice of

removal of a criminal prosecution

shall not prevent the State court in

which such prosecution is pending

from proceeding further, except that

ix

a judgment of conviction shall not

be entered unless the prosecution is

first remanded.

(4) The United States district

court in which such notice is filed

shall examine the notice promptly.

If it clearly appears on the face of

the notice and any exhibits annexed

thereto that removal should not be

permitted, the court shall make an

order for summary remand.

(5) If the United States

district court does not order the

summary remand of such prosecution,

it shall order an evidentiary

hearing to be held promptly and

after such hearing shall make such

disposition of the prosecution as

justice shall require. If the

United States district court

determines that removal shall be

permitted, it shall so notify the

State court in which prosecution is

pending, which shall proceed no

further.

(d) Promptly after the filing

of such notice of removal of a civil

action the defendant or defendants

x

shall give written notice thereof,

to all adverse parties and shall

file a copy of the notice with the

clerk of such State court, which

shall effect the removal and the

State court shall proceed no further

unless and until the case is

remanded.

(e) If the 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.

(f) With respect to any

counterclaim removed to a district

court pursuant to section 337(c) of

the Tariff Act of 1930, the district

court shall resolve such

counterclaim in the same manner as

an original complaint under the

Federal Rules of Civil Procedure,

except that the payment of a filing

fee shall not be required in such

xi

cases and the counterclaim shall

relate back to the date of the

original complaint in the proceeding

before the International Trade

Commission under section 337 of that

Act.

xii

- a ne Ut ere

STATEMENT OF THE CASE

Plaintiff-Respondent Anthony A.

Petrarca (hereinafter "Petrarca" )

commenced this action by filing his

Complaint in the Summit County, Ohio

Court of Common Pleas on March 18, 1992.

Petrarca’'s Complaint named Child World,

Inc. (hereinafter "Child World") and Cole

National Corporation (hereinafter "Cole" )

as Defendants. Petrarca's Complaint sets

forth four counts. The first count is a

Claim against Child World as lessee and

Cole as guarantor for delinquent rents,

unpaid common area maintenance costs,

taxes, insurance, and late fees relative

to a l@ase between Petrarca and Child

World, for a Child World Store in Denver,

Colorado. The second count is a claim

against Child World as lessee, and Cole

as guarantor for future rents pursuant to

that Denver lease which had accelerated

as a result of the default. The third

and fourth counts assert claims against

Child World only and are not involved in

this appeal.

On April 14, 1992, Things

Remembered, Inc. (hereinafter "TRI"), a

non-party to the action, in contravention

of the Ohio Rules of Civil Procedure,

purported to enter into the case "as a

successor by merger to Defendant Cole

National Corporation” and took an

automatic Leave to Plead for twenty-one

(21) days up through and including May

11, 1992, purportedly pursuant to Summit

County Local Rules of Court.

On May 6, 1992, Child World filed

petitions pursuant to Chapter 11 of Title

11, United States Code, in the United

States Bankruptcy Court for the Southern

District of New York, the same being Case

No. 92B20887.

On May 11, 1992, Child World filed

with the Summit County Court of Common

Pleas a suggestion of stay in this

action, and on May 22, 1992, the

Honorable Ted Schneiderman entered an

Order ordering that the case be

transferred to the inactive docket as to

Child World only subject to reinstatement

at such time as the court has been

notified that the bankruptcy stay Order

has been removed.

The case proceeded against Cole and

against TRI. TRI filed an Answer on May

28, 1992. In its Answer TRI did not

assert as an affirmative Defense or

otherwise that this case should properly

be in Federal Court. Next, TRI noticed

and took two depositions, one of a non-

party witness to this action and one of

Plaintiff Petrarca.

On June 26, 1992, TRI filed its

Amended Answer and Counterclaims in the

Court of Common Pleas, Summit County,

Ohio. TRI asserted not only

Counterclaims against Plaintiff Petrarca

but also joined an additional

Counterclaim Defendant Colfax Manor

Gardens, previously not a party to the

action, ‘and asserted purely permissive

Counterclaims against Colfax Manor

Gardens. TRI asserted in its

Counterclaim four (4) counts for

declaratory judgment raising issues which

were virtually identical to those raised

by Petrarca's original Complaint but

relating to four (4) additional Child

World stores and leases between Petrarca

and Child World and Cole guaranties of

those leases. Obviously, TRI made no

3

reference in its Amended Answer and

Counterclaims to the fact that it

believed this action should properly be

in Federal Court.

The parties proceeded with discovery

until on August 28, 1992, Petrarca filed

his First Amended Complaint bringing five

(5) additional guaranty claims against

TRI and Cole again raising the identical

issues previously raised by Petrarca's

original Complaint and also subsequently

raised by TRI's Counterclaim. Two (2) of

the properties which are the subject of

Petrarca's First Amended Complaint had

previously been placed in issue by TRI's

Counterclaim. These are the Manheim,

Pennsylvania property and the Westland,

Michigan property.

On or about September 15, 1992, TRI

filed in the Court of Common Pleas,

Cuyahoga County, Ohio a separate

Complaint for declaratory relief against

Anthony A. Petrarca and other Defendants

seeking declaratory judgment upon two (2)

additional Cole guaranties of Child World

leases raising issues similar to,

although not identical to, the issues

raised in this litigation but as to still

4

o-oo

two (2) additional properties

(hereinafter "TRI vs. BGTV"). Again,

obviously, TRI did not assert in its

Complaint in TRI vs. BGTV filed in

Cuyahoga County Common Pleas Court that

those claims are properly raised and

litigated only in Federal Court.

On or about September 25, 1992, TRI

improperly filed its Notice of Removed

Action in the Court of Common Pleas,

Summit County, Ohio, indicating that the

case had been removed to the United

States District Court, Northern District

of Ohio and indicating further that the

case had been removed only pursuant to 28

U.S.C. § 1446(d). On or about the same

day, TRI filed in the United States

District Court for the Northern District

of Ohio and in the United States

Bankruptcy Court for the Northern

District of Ohio two (2) separate Notices

of Removal indicating that the case had

been removed pursuant to 28 U.S.C. §§

1331, 1334(b), 1441, 1446, 1452 and

Bankruptcy Rule 9027.

On or about October 5, 1992, before

the two (2) removals were consolidated,

TRI filed only in the District Court a

5

Motion to Dismiss Petrarca's First

Amended Complaint.

On October 23, 1992, Petrarca filed

in District Court a Motion to Remand and

Motion for Costs. Petrarca subsequently

filed a virtually identical Motion in the

Bankruptcy Court.

On October 29, 1992, Petrarca filed

only in District Court a Motion to Stay

Proceedings on the Motion to Dismiss

asking Judge Ann Aldrich to rule first on

Petrarca's Motion to Remand. Petrarca

also filed a Brief in Opposition to TRI's

Motion to Dismiss.

TRI filed both in the District Court

and in the Bankruptcy Court Memoranda in

Opposition to Petrarca's Motions to

Remand, and then on December 17, 1992,

TRI filed only in the Bankruptcy Court a

Motion to Transfer Venue and a Memorandum

in Support requesting the Bankruptcy

Court to transfer venue of this case to

the United States Bankruptcy Court for

the Southern District of New York.

Petrarca filed a Brief in Opposition and

TRI filed a Reply Memorandum.

On June 25, 1993, Judge Harold F.

White of the United States Bankruptcy

6

Court for the Northern District of Ohio

entered his Memorandum of Decision on

Motion to Remand and Motion to Transfer

Venue. Judge White found and held that

TRI's removal to the District Court under

the general removal statute, 28 U.S.C. §

1446, was proper. However, Judge White

also found and held "that the removal to

[the bankruptcy] court was untimely."

Memorandum of Decision on Motion to

Remand and Motion to Transfer Venue, June

25, 1993, at 6, See Appendix C at p. 20a.

Petrarca timely appealed to the

United States District Court. TRI did

not appeal from any aspect of Judge

White's decision. Upon consideration of

Petrarca's appeal, the District Court,

Judge 8am Bell, reversed. Relative to

the federal question removal, Judge Bell

held that the September 25, 1992, Notice

of Removal "was plainly [outside of] the

thirty day period for removal provided by

§ 1446(b).”" Order of August 11, 1994,

See Appendix C at p. 50a’. Judge Bell

*Citations to Appendices are citations to the Appendices

contained in the 6 1/8 x 9 1/4 inch version of Petitioner's

Petition for Writ of Certiorari.

then went on to affirm the Bankruptcy

Court's holding that TRI had failed to

timely remove the case under the

bankruptcy removal provisions of 28

U.S.C. § 1452 and Bankruptcy Rule 9027.

The District Court reversed the

Order of the Bankruptcy Court only

insofar as the Bankruptcy Court had held

that TRI's removal under the general

removal statute was proper. The District

Court remanded the case to the Bankruptcy

Court for further proceedings consistent

with the District Court Order.

TRI appealed to the United States

Court of Appeals for the Sixth Circuit.

The Sixth Circuit ordered TRI to show

cause why the appeal should not be

dismissed since, "[a]s a general rule, an

order remanding an action to a state

court from which is (sic) was removed is

not reviewable on appeal or otherwise.

28 U.S.C. §§ 1447(d) and 1452(b); * * *

[Citations omitted.] * * * It does not

appear, therefore, that the order of the

district court is an appealable order.”

Order, September 29, 1994, at 1, See

Appendix D at p. 6la. The parties

briefed the show cause Order, and the

8

Sixth Circuit then dismissed the appeal.

The Sixth Circuit held: "The record

clearly demonstrates that defendant

sought removal pursuant to the general

removal statute and that the district

court held that the notice of removal was

not filed within the time required by 28

U.S.C. § 1446(b). Thus, Section 1447(d)

prohibits review of that ruling.

[Citations omitted.]" Order, November

15, 1994, at 2, See Appendix A at pp. 2a

- 3a. Relative to the bankruptcy

removal, the Sixth Circuit held: "In

addition, the district court held that

the notice of removal pursuant to section

1452 was not timely filed. Appellate

review of that ruling is likewise barred.

[Citations omitted.]" Order, November

15, 1994, at 2, See Appendix A, at p. 3a.

TRI then petitioned the Sixth

Circuit for rehearing and rehearing en

banc. In response, the Sixth Circuit

entered an Order concluding "that the

issues raised in the petition were fully

considered upon the original submission

and decision of the case." Order,

January 12, 1995, at 1, See Appendix B,

p. 7a.

On January 20, 1995, TRI filed as

Plaintiff in state court in Denver,

Colorado, a declaratory judgment action

seeking a declaration by the Colorado

state court of the rights and liabilities

of TRI, Petrarca, and three other party

defendants relative to the very same

Denver Child World guaranty which was the

subject of Petrarca's original Complaint

but which TRI disingenuously argues here

must be litigated in the federal court

system.

On March 10, 1995, TRI filed its

Petition for a Writ of Certiorari in this

Court.

On March 15, 1995, TRI filed as

Plaintiff in state court in Lancaster,

Pennsylvania, an Action for Declaratory

Judgment seeking a declaration by the

Pennsylvania state court of the rights

and liabilities of TRI, Petrarca, and

three (3) other party defendants relative

to a guaranty of the tenant's obligations

under a lease of a Child World store in

Manheim Township, Pennsylvania. That

Manheim Child World guaranty had been

originally placed in issue in the Summit

County, Ohio litigation by TRI in the

10

Second Claim of its Counterclaim filed

June 26, 1992. Petrarca also placed the

Manheim Child World guaranty in issue in

Counts Seven and Eight of his First

Amended Complaint filed August 28, 1992.

These two counts were improperly included

in TRI's removals. As with the Denver

guaranty, TRI disingenuously argues to

this Court that the Manheim guaranty must

be litigated in Federal Court, while at

the same time TRI is commencing and

pursuing a declaratory jud7ment action on

that guaranty in state court in

Pennsylvania.

ll

SUMMARY OF THE ARGUMENT

This Court should deny MTRI's

Petition for the following five reasons.

First of all, TRI waived the right

to assert the argument it intends to

assert if this Court grants the Petition

when TRI failed to appeal the Bankruptcy

Court Order which held, in part, that TRI

had failed to timely remove this case

under the bankruptcy removal statute.

Additionally, TRI has waived its right to

argue that the issues to be litigated

between Petrarca and TRI ought to be

litigated in Bankruptcy Court as a result

of TRI's commencement of two separate

state court actions wherein TRI seeks

declaratory judgments on the very same

issues which it contends must _ be

litigated in Federal Bankruptcy Court.

Secondly, since a remand under the

bankruptcy statute may only be on

equitable grounds, and since this remand

was on jurisdictional grounds, this

remand which TRI contests was clearly not

under the bankruptcy statute but, rather,

was under the general removal and remand

provision.

12

Third, in Daleske v. Fairfield

Communities, Inc., U.S. > aaa

L.Ed. 2d 461, 114 S.Ct. 1832 (1994), this

Court recently denied a Petition for Writ

of Certiorari in a case seeking a review

of issues which are similar to, if not

identical to, those issues presented by

Petitioner TRI in this case.

The cases which TRI contends support

its interpretation of 28 U.S.C. § 1452(b)

are sufficiently distinguishable from the

instant case or simply do not support

Petitioner's position. Therefore, the

conflict between the Circuits which TRI

perceives does not in fact exist and is

not a basis for this Court to grant

Certiorari.

Finally, this Court should deny the

Petition for the reason that there is

already existing authority from this

Court deciding the issue framed by

Petitioner. United States v. Rice, 327

U.S. 742 (1946), Thermtron Products, Inc.

v. Hermansdorfer, 423 U.S. 336 (1976),

Gravitt v. Southwestern Bell Telephone

Co., 430 U.S. 723 (1977), and Volvo of

America Corp. v. Schwarzer, 429 U.S. 1331

(1976), all hold that cases remanded on

13

grounds permitted within 28 U.S.C. § 1447

are not reviewable on appeal or

otherwise.

14

ARGUMENT

REASONS FOR DENYING THE PETITION

I. THIS COURT SHOULD DENY TRI'S

PETITION BECAUSE WHEN TRI

FAILED TO APPEAL THE BANKRUPTCY

COURT ORDER, TRI WAIVED THE

ARGUMENT IT INTENDS TO ASSERT IF

THIS COURT GRANTS THE PETITION.

This Court and other federal

appellate courts have long recognized the

proposition that this Court is without

jurisdiction to consider an argument not

raised in the court below. Pennsylvania

R. Co, wv. JLilinogisa Brick Cs., 3297 U.S.

447 (1936); United States v. Socony-

Vacuum O11) Co.. Inc., 310 VU.8. 150

(1940); and Michel v. Louisiana, 350 U.S.

91 (1955).

In this case, it is clear from the

record of each court in which this case

has proceeded that TRI attempted to

remove this action both under the general

removal statute, 28 U.S.C. § 1446, and

under the bankruptcy removal statute, 28

¥.8.C. § 1652. In fact, the Notice of

15

Removed Action filed in the Summit County

Court of Common Pleas indicated that the

case had been removed only pursuant to 28

U.S.C. § 1446(d). The Bankruptcy Court

held that TRI had failed to timely remove

this case under the bankruptcy removal

statute but that TRI had timely removed

the case under the general removal

statute. TRI did not appeal any aspect

of that ruling of the Bankruptcy Court.

Because the bankruptcy judge ordered the

case transferred to the United States

Bankruptcy Court for the Southern

District of New York, Petrarca did appeal

the Bankruptcy Court's holding that the

case was properly removed under the

general removal statute. Now, despite

TRI's reliance upon the Bankruptcy

Court's holding that it had properly

removed the case under the _ general

removal statute, and despite TRI's

failure to appeal Judge White's holding

that TRI had failed to properly remove

the case under the bankruptcy removal

statute, TRI desires to have this Court

accept jurisdiction over the question of

whether or not an appeal of an Order

remanding a case removed under the 28

16

U.S.C. § 1452 is barred where the remand

order is based on jurisdictional grounds.

Since Petrarca appealed the Bankruptcy

Court's holding that the case had been

properly removed under the _ general

removal provisions, the District Court's

Order, in effect, only reversed that

portion of the Bankruptcy Court Order and

remanded the case under the provisions of

28 U.S.C. § 1447(d) which reads:

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 other-

wise.

Section 1447(d) does not include the

language which TRI asks this Court to

examine and which is contained in 28

U.S.C. § 1452. TRI's argument is

misdirected since this case was not

remanded under § 1452. TRI failed to

appeal the Bankruptcy Court's earlier

holding that the bankruptcy removal was

not timely. Therefore, TRI waived its

right to appeal that question here.

17

TRI has also waived its right to

argue that these issues as _ between

Petrarca and TRI ought to, and can only,

be litigated in Bankruptcy Court as a

result of TRI's most recent conduct in

commencing two (2) separate state court

actions as plaintiff seeking to litigate

in state court the very same issues which

are the subject of TRI's appeal to the

Sixth Circuit and of this Petition.

In this regard, not only has TRI

waived its right to assert that these

issues ought to, and can only, be

litigated in Bankruptcy Court. The

question which TRI asks this Court to

decide is now moot as a result of TRI's

conduct in commencing state court actions

in Colorado and in Pennsylvania on these

very same issues.

Federal Courts are prohibited from

deciding moot questions. There must be

an actual case or controversy between the

parties at the time the issue is

reviewed. Aetna Life Ins. Co. Vv.

Haworth, 300 U.S. 227 (1937), reh. den.

300 U.S. 687 (1937); North Carolina v.

Rice, 404 U.S. 244 (1971). "[MJoot

questions require no answer." Missouri,

18

Kansas & Texas R. Co. v. Ferris, 179 U.S.

602, 606 (1900). Further, this Court may

refuse to consider unnecessary questions.

Mercer v. Theriot, 377 U.S. 152 (1964),

reh. den. 377 U.S. 973 (1964).

In this case, as a result of TRI's

voluntary choice to pursue state court

remedies on those issues it had

previously argued must be litigated in

Bankruptcy Court, the issues are moot and

it is unnecessary for this Court to

decide the issue presented by Petitioner

TRI.

II. THIS COURT SHOULD DENY TRI'S

PETITION SINCE THE REMAND

CLEARLY WAS NOT "ON EQUITABLE

GROUNDS” AND IS THEREFORE

CLEARLY NOT "AN ORDER ENTERED

UNDER 28 U.S.C. § 1452(b)."

The remand provision in § 1452(b) is

limited to discretionary remands based

upon equitable grounds. The statute

reads: "The Court to which such claim or

cause of action is removed may remand

such claim or cause of action on any

equitable ground.” (Emphasis added.) If

19

§ 1452(b) were the only statute to apply

under circumstances such as those

presented by this case, there would be no

requirement that cases removed under §

1452(a) be remanded on the purely legal

ground that the District Court lacks

subject matter jurisdiction over the

case. Since § 1447(c) requires remand in

cases where the District Court lacks

subject matter jurisdiction, § 1447 and §

1452 cover different situations and must

both be given effect. For this reason as

well, it is clear that the District Court

remanded this case under the provisions

of § 1447 and not under the provisions of

§ 1452. Therefore, Sub-Section 1447(d)

governs this remand Order, and the Order

is not reviewable on appeal or otherwise

under any circumstances. Therefore, this

Honorable Court should deny the Petition.

III. THIS COURT SHOULD DENY TRI'S

PETITION SINCE IT HAS RECENTLY

REFUSED TO GRANT A PETITION

FOR WRIT OF CERTIORARI SEEKING

REVIEW OF ISSUES SIMILAR TO, IF NOT

IDENTICAL TO, THOSE ISSUES

PRESENTED IN THIS CASE.

20

This Court recently rejected a

Petition for Writ of Certiorari in

another case which sought review of

issues similar to, if not identical to,

those presented by Petitioner in this

case.

In Daleske v. Fairfield Communities

Inc., 17 F.3d 321 (10th Cir. 1994), the

United States Court of Appeals for the

Tenth Circuit held, as argued by this

respondent above, as follows:

Moreover, the remand provision in

section 1452(b) is limited to

discretionary remands based on

equitable grounds. If this were the

only statute to apply, there would

be no requirement that cases removed

under § 1452(a) be remanded on the

purely legal ground that the

district court lacks subject matter

jurisdiction. Because § 1447(c)

requires such a remand, the statutes

cover different contingencies, and

should both be given effect. For

these reasons, the provisions of 28

U.S.C. § 1447(c) apply to cases

removed under § 1452(a) as well.

Id., at 324.

After the Tenth Circuit affirmed the

Colorado District Court holding,

appellants filed a Petition for Writ of

Certiorari which this Court denied.

Daleske v. Fairfield Communities, Inc.,

21

__ U.S. __, 128 L.Ed. 2d 461, 114 S.Ct.

1832 (1994).

This Court has recently decided that

the issue presented by Petitioner is not

so significant as to require grant of a

Petition for Writ of Certiorari.

IV. THIS COURT SHOULD DENY THE

PETITION BECAUSE THE CONFLICT

IN THE CIRCUITS WHICH TRI PERCEIVES

DOES NOT IN FACT EXIST.

TRI cites this Court to four cases

which it argues support its position that

remands under § 1452(b) on grounds other

than equitable grounds are in fact

reviewable. Those cases are Pacor, Inc.

v. Higgins, 743 F.2d 984 (3rd Cir. 1984);

In re: National Developers, Inc. 803 F.2d

616 (lith Cir. 1986); Browning v.

Navarro, 743 F.2d 1069 (5th Cir. 1984);

and National City Bank v. Coopers and

Lybrand, 802 F.2d 990 (8th Cir. 1986).

For the reasons described below, each of

these cases is sufficiently

distinguishable from the instant case and

the cases presented by TRI as on the

other side of the “conflict” such that

22

there is in fact no conflict among the

Circuits as argued by TRI.

Pacor, supra, was removed -= and

ordered remanded under the bankruptcy

removal statute only, 28 U.S.C. § 1478

which became 28 U.S.C. § 1452 under the

Bankruptcy Amendments and Federal

Judgeship Act of 1984. Pacor was not

removed or remanded under the general

removal statute.

In re: National Developers, inc.,

supra, similarly was removed only under

the bankruptcy removal statute and not

under the general removal statute. The

Eleventh Circuit also found it

significant that the case had _ been

removed from a state court in the

territory covered by the Southern

District of New York to the Bankruptcy

Court for the Middle District of Alabama.

The Court of Appeals therefore found that

it was not a properly removed action and

therefore non-reviewability did not

apply. The Court cited Browning v.

Navarro, supra, and Pacor, Inc. vv.

Higgins, supra, for this proposition.

TRI cites National City Bank v.

Coopers and Lybrand, for the proposition

23

that the Eighth Circuit accepted

appellate jurisdiction over the remand of

a bankruptcy removal even though the

Court had declined to hear the appeal of

a remand Order based on lack of federal

question jurisdiction under § 1331.

Since the Eighth Circuit found that the

remand Order was not reviewable to the

extent that it was based on a lack of

federal question jurisdiction, the

opinion in National City Bank v. Coopers

and Lybrand is supportive of Petrarca's

position. In this case, the District

Court found that both the general removal

and the bankruptcy removal were not

timely. Therefore, under neither method

of removal did the Federal Court have

jurisdiction over this action.

Finally, Browning v. Navarro, supra,

also does not support Petitioner's

position. While Browning does contain a

long footnote containing a _ thorough

discussion of reviewability of remand

Orders, that footnote is merely dicta

since the issue before the appellate

court in Browning was whether or not the

parties had complied with an earlier

Bankruptcy Court remand Order.

24

Again, for all of the foregoing

reasons, the conflict between’ the

Circuits which Petitioner perceives does

not in fact exist. The cases presented

by Petitioner in support of its position

relative to interpretation of 28 U.S.C. §

1452(b) are either distinguishable or

simply do not in fact support TRI's

interpretation of § 1452.

V. THIS COURT SHOULD DENY THE

PETITION FOR THE REASON THAT

THERE IS ALREADY EXISTING

UNITED STATES SUPREME COURT

CASE LAW DECIDING THE ISSUE

FRAMED BY PETITIONER.

There are numerous decisions of this

Court which confirm the rule that cases

remanded when the District Court

determines that the case was removed

improvidently or that the District Court

is without jurisdiction over the case are

not reviewable by the Court of Appeals.

This line of cases starts at least with

United States v. Rice, 327 U.S. 742

(1946). More recently, this Court has

decided Thermtron Products, Inc. _ vy.

25

Hermansdorfer, 423 U.S. 336 (1976),

Gravitt v. Southwestern Bell Telephone

Co., 430 U.S. 723 (1977), and Volvo of

America Corp. v. Schwarzer, 429 U.S. 1331

(1976).

In Thermtron, this Court held that §

1447(d) does not bar appellate review by

mandamus of a remand Order which is made

on grounds which are not specified in §

1447(c), but in doing so also re-

emphasized the rule that cases remanded

on grounds permitted within the statute

are not reviewable.

Gravitt reversed a Court of Appeals

Order which, by mandamus, had ordered a

District Court to vacate its remand Order

because the District Court had employed

erroneous principles in concluding that

it was without jurisdiction. This Cour®

again confirmed the rule that the remand

Order was not reviewable, holding:

The District Court's remand order

was plainly within the bounds of §

1447(c) and hence was unreviewable

by the Court of Appeals, by mandamus

or otherwise. Thermtron Products,

Inc. v. Hermansdorfer, 423 U.S. 336,

is not to the contrary, for there

the District Court remanded on

grounds wholly different from those

upon which § 1447(c) permits

26

remand.' Id., at 344. Thermtron did

not question but re-emphasized the

rule that § 1447(c) remands are not

reviewable.

430 U.S. 723, at 723-724.

Finally, in Volvo, upon an

application for a stay of a District

Court Order pursuant to 28 U.S.C. §

1447(c) remanding an alleged diversity

class action to state court on the ground

that the District Court had no

jurisdiction of the action, Justice

Rehnquist denied the application for stay

holding that appellate review of a remand

Order based on § 1447(c), whether

erroneous or not, is barred by § 1447(d).

Again, since in this case Petitioner

removed this action both under the

general removal provisions and under the

bankruptcy removal provisions, this case

must be governed by not only’ the

bankruptcy removal provisions but also

the general removal provisions, including

§ 1447(d) and this Court's existing case

law interpreting that section.

Therefore, there is existing case law

from this Court which is dispositive of

the question presented by Petitioner, and

27

on that basis,

this Petition.

this Court should deny

28

CONCLUSION

For all of the reasons set forth

above, this Court should deny Petitioner,

Things Remembered, Inc.'s Petition for

Writ of Certiorari and refuse to review

the Sixth Circuit Court of Appeals' Order

which, in turn, refused to review the

District Court's Order remanding this

case to the Bankruptcy Court with

instructions to remand this case to state

court consistent with the District Court

Opinion.

Respectfully submitted,

nd. <. Mb) pte etre

Jo C. Weisensell

Counsel of Record

Andrew R. Duff

Jack Morrison, Jr.

AMER CUNNINGHAM BRENNAN CO., L.P.A.

Sixth Floor, Society Building

159 South Main Street

Akron, Ohio 44308-1322

(216) 762-2411

Attorneys for Respondent

Anthony A. Petrarca

29

CERTIFICATE OF SERVICE

A true copy of the foregoing Brief

in Opposition to Petition for Writ of

Certiorari was sent by regular U.S. Mail,

postage prepaid, to:

Peter A. Greene

Thompson, Hine & Flory

1920 N Street, N.W.

Washington, D.C. 20036-1601

202-973-2700

Counsel of Record for Petitioner,

Things Remembered, Inc.

on this § day of April, 1995.

Soph. 7. d/irecrerce—

J C. Weisensell

Counsel of Record for Respondent,

Anthony A. Petrarca

In compliance with Rule 29.5, all

parties required to be served have been

served.

30