# Reply Brief — Things Remembered, Inc. v. Petrarca

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0590%3A07

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 1995
- **Citation:** 516 U.S. 124

## Text

Supreme Court, U.S.
FILED

Aug 26 1995
No. 94-1530

CLERK
endesnsnenes

Au the Supreme Qonrt of the Huited States

OCTOBER TERM, 1994

THINGS REMEMBERED, INC.,
Petitioner,
V.

ANTHONY A. PETRARCA,
Respondent.

ON WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

REPLY BRIEF FOR PETITIONER

STEVEN D. CUNDRA,
Counsel of Record
PATRICIA L. TAYLOR
DEAN D. GAMIN
MARK A. GAMIN

THOMPSON, HINE AND FLORY
i920 N. Street, N.W.
Washington, D.C. 20036
(202) 973-2700

Counsel for Petitioner

BEST AVAILABLE COPY

SS

> a

(i)

QUESTION PRESENTED FOR REVIEW

Whether an order remanding a case on other than "any
equitable ground," which case had been removed pursuant
to 28 U.S.C. § 1452, is reviewable by the court of appeals.

(iii)

(ii)
TABLE OF CONTENTS B. The Bankruptcy Removal Scheme
Contemplates and Permits Appeal of the
EE EO 8
Page C. General Statements of Bankruptcy Policy
and History Prove Nothing in the Face of
QUESTION PRESENTED FOR REVIEW ....... i the Inconsistencies and Incongruities
Between § 1447 and § 1452 ....... 12
TABLE OF CONTENTS ..0cctcceeewun eee ii
Ill. THINGS REMEMBERED
TABLE OF AUTHIORITIS . wc ccc tc uctuns iv WAIVED NOTHING ............. 15
ARGUDMENT ......s0000 ck sae 2 A. Timeliness of the Bankruptcy Removal
(1) is Not the Issue Before this Court
I. APPELLATE REVIEW OF THE and (2) Was Not Waived ......... 15
REMAND ORDER IS NOT BARRED
BY 6 1468... oss cee 2 B. Neither the Question Before this Court
Nor the Other Question Cited by
A. The Remand Was Not Entered EE 16
"On Any Equitable Ground" ........ 2
EIS Ea 17
B. “Any Equitable Ground” Does Not
Encompass “Any Ground” of Remand . . 3 APPENDIX:
ll. APPELLATE REVIEW OF THE U.S. Const. art. I IS tates may os A-14
REMAND ORDER IS NOT BARRED
BY §$ 8660 .. wi vcdvekeneneeees 5
A. The Remand Order Was Not Issued
Pursuant te © S667 «cts eheouee ee 6

(iv)
TABLE OF AUTHORITIES
Page

Cases:
In re Adams, 809 F.2d 1187 (Sth Cir. 1987). ... 7,8
In re Adams, 133 B.R. 191 (Bankr. W.D. Mich.

ah es eR ee ah ow eae 8
In re Allstate Ins. Co. 8 F.3d 219

CE ee ed oe Wie aly 6 bo 8 eo 10
Balazik v. County of Dauphin, 44 F.3d 209

Se Gee A eG il hen oe dias & 0 0 2 0 2 )
In re Branded Prods., Inc., 154 B.R. 936

Gs. Wa Se EY Ne we ws cee 6, 8
Carnegie-Mellon Univ. v. Cohill_—

ee es vn ed vee 68 boo oe 6
Connecticut Nat’l Bank v. Germain,

ne as oe as 8 13
Matter of Continental Casualty Co., 29 F.3d

ey I, oo ie nia Ge eye wg 10
Dominick v. Dixie Natural Life Ins. Co. , 809 F.2d

ee Be a da es Kb ee ee 8

Federal Election Comm'n v. NRA Political
Victory Fund, 115 S. Ct. 537 (1994) ........ 14

(v)
In re Hansen Industrial, Inc., 83 B.R. C59

BR ee eee 8
Hernandez v. Brakegate, Ltd., 942 F.2d 1223

Ge Ed ho. OF 0 eHb ws ae ews 6, 9, 12
Pacor, Inc. v. Higgins, 743 F.2d 984

Sees SE ah ta bi dace SUR ee: «we a0 9, 12
Posadas v. National City Bank, 296 U.S. 497

SEN i as Sk gh oe a eke dk COMES 6 ore a aiks 14
In re Potts, 724 F.2d 47 (6th Cir. 1984) ........ 8
Sykes v. Texas Air Corp., 834 F.2d 488

te eee nee es eo 6 0. 7,9
Thermtron Prods., Inc. v. Hermansdorfer,

I I ro ar ly wos ecg 6 eo 0 6 8 11
United States v. American Ry. Express Co.,

I 16
Statutes:
EE en ee ee 7
ss os ay oho wb abs ‘12
A ae a e's ee bed bs 46 6 passim
in ea ea passim

(vi)
Constitutions:
OR Cee OR CORES ccc ce h ev ecevets 5
Legislative Sources:

H.R. Doc. No. 889, 100th Cong., 2d Sess. 7
(1988), reprinted in 1988 U.S.C.C.A.N. 5982,

ee es re ae ee Os Bib e008 ke 8 88 e's 10
Miscellaneous Sources:
Black’s Law Dictionary (Sth Ed. 1979) ......... 2

Webster’s Third New International Dictionary (1976) . 2

No. 94-1530

In the Supreme Qonrt of the United States

OCTOBER TERM, 1994

THINGS REMEMBERED, INC.,
Petitioner,
v.

ANTHONY A. PETRARCA,
Respondent.

ON WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

REPLY BRIEF FOR PETITIONER

Petitioner Things Remembered, Inc.' ("Things
Remembered") submits that nothing in either the Brief for
Respondent or the Brief for Amicus defeats the arguments set
forth in Things Remembered’s main brief. Why that is so,
and why this Court should reverse the Sixth Circuit’s order
dismissing Things Remembered’s appeal, is discussed in
detail here in Thin-: Remembered’s Reply Brief, which
proceeds generally in the same order of argument as its first
brief.

' Pursuant to Supreme Court Rule 29.1, Things Remembered re-
spectfully refers the Court to the statement at Brief for Petitioner at 3
n.1.

ARGUMENT

APPELLATE REVIEW OF THE REMAND
ORDER IS NOT BARRED BY § 1452

Initially, Petrarca argues that Things Remembered
has not defined "any equitable ground" and that "any
equitable ground" includes "jurisdiction." The first point is
correct, the second not: whatever the grounds were for the
remand, they were not "equitable." Thus, the plain
language of 28 U.S.C. § 1452(b) should be given effect to
allow appellate review of the District Court’s order.

A. The Remand Was Not Entered
“On Any Equitable Ground”

Things Remembered need not catalogue every
conceivable equitable’ ground the District Court might have
considered to show that its holding -- that event X followed
deadline Y -- was decidedly not premised "on any equitable
ground" within § 1452(b). The Bankruptcy Court and
District Court Orders addressed only whether Things

? If definition of “equitable” is needed, Things Remembered would
suggest, and accept, any of these: “Just; conformable to the principles
of justice and right. Existing in equity; available or sustainable in equity,
or upon the rules and principles of equity." Black's Law Dictionary,
482 (Sth ed. 1979); “characterized by equity: fair to all concerned:
without prejudice, favor, or rigor entailing undue hardship. 2. that can
be sustained or made effective in a court of equity or upon principles of
equity jurisprudence: existing or valid in equity as distinguished from
law. Syn see fair." Webster's Third New International Dictionary, 769
(1976).

3

Remembered’s removals were timely, and explicitly
declined to address motions and arguments raising other
issues, (J.A. 9a, 31a). The District Court’s analysis merely
computed (from an erroneous starting point, Things
Remembered would have argued, and hopes to argue, in the
Sixth Circuit) the time for removal. This was in the nature
of an arithmetical calculation.

It was not, in contrast, a discretionary judgment call
that required weighing the relative merits of various
considerations that might or might not favor remand. Those
kinds of judgment calls do not permit a black-or-white, yes-
or-no holding, but rather a wise and informed, vel non,
decision, not susceptible to easy, or proper, review in a
higher court. Timeliness, on the other hand, is quantifiable
and rigid. Decisions on timeliness grounds are demonstrably
right or wrong, and so can be and are reviewed de novo.
This is precisely the distinction that Congress has
galvanized, in 28 U.S.C. § 1452(b), by prohibiting review
of remands on equitable grounds, but not others.

B. “Any Equitable Ground” Does Not Encompass
“Any Ground” of Remand

Petrarca’s argument for inclusion of "jurisdiction" in
"any equitable ground" proceeds without logical support.
Thus, even if it is correct to say that Congress intended
generally that state law claims be tried in state court, even
if Congressional debates "repeatedly cited to the concepts of
equity and fairness," Brief for Respondent at 17, and even
if statements by individual Senators can appropriately guide
this Court’s reading of the statute,’ id. at 17-18, the bald

> It may be that Petrarca’s free and easy paraphrases of the legislative
(continued...)

4

conclusion that Petrarca draws -- that "Congress clarified its
intent to include ‘jurisdiction’ as an ‘equitable ground,’" id.
at 18, just does not follow. At most, Petrarca’s entire
argument here is a simple assertion that Congress ought to
have prohibited appeals of remands made on "jurisdictional"
grounds in § 1452(b). But it did not, and the omission must
have meant something; in any event it should not be
judicially supplied.

Finally, Petrarca uses this section of his brief to
lambaste Things Remembered for "litigat[ing] the juris-
dictional question in order to delay the suit and increase liti-
gation expenses," and other alleged misdeeds. Brief for
Respondent at 17-18. (Though structured less as a direct at-
tack on Things Remembered, Amicus makes a similar point
-- that litigating over where to litigate is wasteful. Indeed,
that is the whole point of the Amicus brief.*)

The criticism is not justified or fair. The right to
invoke federal bankruptcy jurisdiction proceeds from the

*(.. continued)

history materials he cites, Brief for Respondent at 14-20, are accurate,
but the statements are so general as to be all but meaningless here. One
need not dispute, for example, that the “abuse of bankruptcy power,” id.
at 17, is a legitimate Congressional concern, in order to argue that the
words of the statute here at issue should be applied.

‘ Part of the basis for the Amicus argument is the incorrect assertion
that the Child World bankruptcy case “is now long since over." Amicus
Brief at 6. It is not; that a plan was confirmed, id. n.17, does not end
the bankruptcy case. In fact, the Child World Bankruptcy Court has
expiicitly retained jurisdiction over claims, including Petrarca’s here,
“initiated in or removed to the Bankruptcy Court involving real property
leases rejected by Child World . . ." See Exhibit B to Brief for Appellee
Things Remembered, Inc. (filed Aug. 31, 1993 in Case No. 5:93-CV-
1582) at 7.

5

Constitution’s recognition of bankruptcy as a unique federal
concern, U.S. Const. art. I § 8 cl. 4, one in which all
matters affecting the estate may be adjudicated in a single
forum. The fact that Petrarca’s claims may affect or be
affected by the estate of a bankrupt under federal court
protection is not the doing of Things Remembered; the fact
that Congress allows those claims to be addressed in a
single, fair, credible and efficient bankruptcy court forum
is a policy choice Congress, not Things Remembered, has
made.

Petrarca’s criticism, moreover, has a little of the pot
calling the kettle black about it. Had the lower Bankruptcy
Court’s order of transfer been given effect, this case might
likely have been concluded by now. It was not given effect;
Petrarca chose to appeal the bankruptcy court’s order of
transfer in the face of ample precedent supporting it. That
appeal, too, was litigation over where to litigate, and Things
Remembered’s good faith in removing was surely no less
than Petrarca’s in appealing.

APPELLATE REVIEW OF THE REMAND
ORDER IS NOT BARRED BY § 1447(d)

Section 1452 does not bar appeal of remands of
bankruptcy removals based on timeliness grounds -- that is
Clear. Neither does § 1447(d).

6

A. The Remand Order Was Not
Issued Pursuant to § 1447

Faced with the plain language of § 1452(b), Petrarca
next advances the argument that "since this case was
remanded on jurisdictional grounds, it could not have been
remanded pursuant to § 1452(b)." Brief for Respondent at
20. Even were that true (which Things Remembered does
not concede*) it does not follow that the remand must
therefore have been made pursuant to 28 U.S.C. § 1447(d)
and hence is subject to the appellate bar of that subsection.

Petrarca’s argument in this regard is founded in
Hernandez v. Brakegate, Lid., 942 F.2d 1223 (7th Cir.
1991). Hernandez erroneously presumed that federal courts
have no power to remand cases unless such power is
granted by statute, and that if statutory authorization for
remand is lacking, a case must be dismissed outright. 942
F.2d at 1225. But this Court has held that remands can be
made, validly and effectively, without explicit statutory
authority. Carnegie-Mellon Univ. v. Cohill, 484 U.S. 341
(1988). See Brief for Petitioner at 28. Here it is irrelevant
whether there exists applicable statutory authorization to
remand. Rather, the relevant point is that where there
exists no applicable statutory bar to appeal, appeal is
permitted.

* One of Petrarca’s own citations, In re Branded Products, Inc., 154
B.R. 936, 945 (Bankr. W.D. Tex. 1993), Brief for Respondent at 29,
suggests that the power to remand on a ground which is not “any
equitable ground” derives from § 1452(@). That observation, if anything,
supports Things Remembered’s argument that the appellate bar of
§ 1452(b) applies solely to remands “entered under this subsection,” i.e.,
those entered “on any equitable ground."

7

The significance of the foregoing is that the
Hernandez court’s characterization of the two Statutory bars
to appeal as “cover[ing] the waterfront," or Respondent’s
presentation of the issue as a dichotomy from which there
IS NO escape, are wrong. The remand at issue in this case
could be legally correct, whether or not authorized by either
of § 1452 or § 1447, but subject to the appellate bar of
neither. In that event, Things Remembered is entitled to an
appellate court decision as to the legal correctness of the
remand.°

Finally, Petrarca catalogs a number of cases which
he contends are supportive of the application of some bar to
appeal to the remand order issued in this case. Brief for
Respondent at 25-31. Though a lower court scorecard is
less than pertinent here, Things Remembered will briefly
address those new cases Petrarca cites, all of which are
distinguishable, that were not discussed in the Brief for
Petitioner.

In re Adams, 809 F.2d 1187 (5th Cir. 1987)
dismissed an appeal of an order of remand by virtue of both
28 U.S.C. §§ 1334(c)(2) and 1452(b). The ruling as to the
former statute was correct because it does not carve out an
exception for other-than-equitable remands. As to
§ 1452(b), Adams ignored the distinction between remands
on equitable grounds and other remands.’

- Petrarca also relies on Sykes v. Texas Air Corp., 834 F.2d 488 (Sth
Cir. 1987) and the notion that appellate review of remand orders might
jeopardize state court proceedings. Brief for Respondent at 21. If that
is plausible elsewhere, it has no bearing here, where there was little
activity in the state court before the removal and none after.

” Petrarca’s puzzling parenthetical, Brief for Respondent at 27,
(continued...)

Dominick v. Dixie National Life Insurance Co., 809
F.2d 1559 (11th Cir. 1987) and In re Potts, 724 F.2d 47
(6th Cir. 1984), involved reviewability of decisions to
retain, not remand, removed cases. Those cases are readily
explained by reference to the plain language of § 1452 (or
its predecessor § 1478): "[a]n order under this subsection
remanding a claim or cause of action, or a decision to not
remand, is not reviewable by appeal . . ." (emphasis
added). In re Branded Products, Inc., 154 B.R. 936
(Bankr., W.D. Tex. 1993); and Jn re Hansen Industries,
Inc., 83 B.R. 659 (Bankr. D. Minn. 1988) are both
bankruptcy court decisions which cannot be authoritative on
this question of appealability.

Where a removed case could be heard in the
bankruptcy court, but the bankruptcy court erroneously
remands because it believes it does not have jurisdiction, or
that the removal was untimely, or for any reason other than
"any equitable" one, appellate review of that order is
permitted because the language of § 1452 does not prohibit
it.

B. The Bankruptcy Removal Scheme
Contemplates and Permits Appeal of
the Remand Order

Petrarca (and the Amicus) contend that appeal of any
remand based on "jurisdictional" grounds is barred by

7(...continued)
describes Adams as “the further history of the case which Petitioner
cites” at Brief for Petitioner at 20 n.13. In re Adams, 809 F.2d 1187
(Sth Cir. 1987) and In re Adams, 133 B.R. 191 (Bankr. W.D. Mich.
1991) share the same name but are not the same case and have little or
nothing to do with each other substantively.

J

9

§ 1447(d). The short answer to this contention is that this —
remand was not on jurisdictional grounds,* and the
argument is therefore based on an inaccurate premise. This
remand was instead ordered because of a perceived defect
in timeliness of the removal.

It is true that § 1447(d) could bar appeal, in the
general removal context, of remands based on procedural
defects as well as those based on lack of jurisdiction. See,
e.g., Balazik v. County of Dauphin, 44 F.3d 209 (3rd Cir.
1995). But it does not and cannot follow that appeal of an
remand order grounded on a perceived defect in timeliness
of a removal taken in the bankruptcy context is also barred
by § 1447(d). The conclusion is evident from an analysis
of the differing rules by which a removed party may seek
remand; that analysis shows that Petrarca’s suggestion
would impose on the removing party the bar to appeal of
§ 1447(d), while releasing the removed party from the
deadline of § 1447(c). That asymmetrical strategic
advantage cou'd not have been intended, and was not
enacted, by Congress.

Under § 1447(c), "a motion to remand the case on
the basis of any defect in removal procedure must be made
within 30 days following the notice of removal under

* The District Court held that the Bankruptcy Court “lacked
jurisdiction,” but it could not have meant subject-matter jurisdiction
because failure to timely remove does not divest the court of jurisdiction.
This case differs in that respect from three of the precedents on this
issue, Pacor, Inc. v. Higgins, 743 F.2d 984 (3d Cir. 1984); Hernandez
v. Brakegate, Lid., 942 F.2d 1223 (7th Cir. 1991); and Sykes v. Texas
Air Corp., 834 F.2d 488 (Sth Cir. 1987), all of which considered
remands made for lack of subject-matter jurisdiction.

10

section 1446(a)."° Absent such a motion, the removed party
is deemed to waive any objection to procedural defects and
the case (if there is subject matter jurisdiction) will proceed
to judgment. At that point, any procedural defect in
removal will never be at issue; the District Court may not
raise the defect sua sponte. See Matter of Continental
Casualty Co., 29 F.3d 292 (7th Cir. 1994); In re Allstate
Ins. Co., 8 F.3d 219 (Sth Cir. 1993).

By contrast, a perceived defect in removal procedure
is never deemed waived in a bankruptcy-context removal,
for Rule 9027 does not impose any time limit on a motion
to remand.'° The Amicus acknowledges this difference, see
Amicus Brief at 20, but overlooks its significance.

That significance lies in the fact that the removed
party in a bankruptcy-context removal acquires a right to
identify, and move on, a procedural defect at any time,
notwithstanding the deadline of § 1447(c). If for whatever
reason things appear to be going badly in federal court at
some later time, the removed party could then present its
procedural objections. At the same time (under Petrarca’s

* This language was added to § 1447(c) by Section 1016 of the Judicial
Improvements and Access to Justice Act of 1988, Pub.L. 100-702, 102
Stat. 4642. The intent of the amendment was to deal with the “risk that
a party who is aware of a defect in removal procedure may hold the
defect in reserve as a means of forum shopping if the litigation should
take an unfavorable tum.” H.R. Doc. No. 889, 100th Cong., 2d Sess. 7
(1988), 1988 U.S.C.C.A.N. 5982, 6033.

‘© It would not appear that Rule 9027(d) imports the time limitation of
§ 1447(c), for § 1447(c), by its explicit terms, measures the motion
deadline from “the filing of the notice of removal under Section
§ 1446(a).” That section contains procedures and time limitations which
vary in some respects from the notice of removal described in Rule
9027(a). See infra this Reply Brief at n.12.

11

theory) the removing party would always remain subject to
the bar to appeal of § 1447(d), even though the removed
party stands outside that statute.

The solution to that skewed and illogical procedural
advantage can only be the interpretation of § 1452 and
Rule 9027 for which Things Remembered contends: that
these provisions set up an exclusive, separate and
comprehensive scheme for bankruptcy context removals.
Under Rule 9027, the removed party has the right at any
time and forever to identify a procedural defect in removal,
and, in order to to guard against abuse, the removing party
has been afforded a continuing, corresponding right to
appeal the decision. Under the scheme of § 1447(c) and
(d), the removed party must act quickly in choosing a state
or federal forum, and as a corresponding limitation, the
removing party may not appeal."

Since all of the necessary removal procedures are
contained, in a fair and evenhanded manner, in § 1452 and
Rule 9027, there is no need for importation of § 1447. This
is especially so since to allow § 1447 to be applied
asymmetrically to bankruptcy-context removals to the
benefit of one party and not the other cannot have been
intended and has the potential of working substantial
mischief.

'' In general-context removals, this protective balance is assured by the
doctrine of Thermtron Products, Inc. V. Hermansdorfer, 423 U.S. 336
(1976). If an untimely motion to remand on procedural defects is
erroneously granted by the court, that remand would be “issued on
grounds not authorized by § 1447(d),” id. at 343, and hence would be
reviewable.

12

C. General Statements of Bankruptcy Policy
and History Prove Nothing in the Face
of the Inconsistencies and Incongruities
Between § 1447 and § 1452

In 1978, Congress enacted 28 U.S.C. § 1478, the
predecessor to § 1452. That enactment, and the
accompanying procedural rules, produced (and evidenced
the intent to produce) a self-contained bankruptcy-context
removal scheme that is separate and apart from the general
removal scheme of §§ 1441-1447. The Amicus contends
that the history of removal and remand law and procedure
should guide this Court insofar as it reflects "the larger
context of the policies that animate bankruptcy
administration as a whole," Amicus Brief at 27-28. That
argument ultimately proves nothing related to the question
now before this Court. Sections IA and IB of the Amicus
Brief canvass cases which predate the enactment of § 1478
(the predecessor to § 1452) with the apparent purpose of
showing that before the removal and remand provisions of
§ 1478 came into existence, the existing removal and
remand provisions of §§ 1441-1447 (and predecessors) were
applied in bankruptcy related actions. This proves that
§ 1478 was not applied before it was enacted. After that
extended discussion, the Amicus cites Hernandez and Pacor,
two of the current cases which describe the split between
the Circuits, and arrives at the issue that is relevant here:
“whether application of Section 1447(d) in the bankruptcy
context under the current Bankruptcy Code is improper
given the existence of 28 U.S.C. § 1452(b).” Amicus Brief
at 17.

Section IC of the Amicus’ Brief then states the
argument that § 1447 and § 1452, which "govern different
specie of remands," are not in conflict. Amicus Brief at

13

19. As support for this conclusion, the Amicus discounts
the analysis of Pacor v. Higgins, 743 F.2d 964 (3rd Cir.
1984), which identified a number of inconsistencies and
incongruities that would result from the simultaneous
application of both statutes. Things Remembered provided
an extended example of those inconsistencies and
incongruities, see Brief for Petitioner at 20-21. The
hypothetical demonstrated that there are removals subject to
§ 1452 which simply cannot bear the language or concepts
of § 1447. Amicus has said nothing to reconcile the statues
to the situation there posited. If the Amicus cannot provide
an answer to that problem, it is worth nothing to say, as the
Amicus does, that the differences just don’t matter. '”

But matter they do, and they matter in a way that
supports a finding that § 1447 is not to be applied to
remands in the bankruptcy context. Amicus contends,
Amicus Brief at 21, that Connecticut National Bank v.
Germain, 503 U.S. 249 (1992), is instructive as to the
interpretation of two statutes with overlapping application.
It is -- but not to the effect Amicus urges. Germain
preserved the effect of two overlapping statutes, because
one reached additional situations the other did not.
However, the enactment of the separate and comprehensive
bankruptcy removal scheme now codified at § 1452
indicates Congress’ intent to make that scheme exclusively
operative within its separate and comprehensive domain.

'2 The Amicus actually acknowledges only one difference between the
two removal schemes: the time limits for removal in a bankruptcy and
in a general removal context. That difference is said to be “a narrow
one” unrelated to the statutes governing each separate and comprehensive
scheme. Amicus Brief at 20. None of the other differences identified by
Pacor and Things Remembered (the fora from which cases can be
removed, the parties entitled to remove, and the extent of claims, causes
of action, or an entire case that can be removed) are addressed.

ae

14

This case is therefore more closely akin to Federal Election
Commission v. NRA Political Victory Fund, 115 S.Ct. 537
(1994), see Brief for Petitioner at 23, than to Germain. The
statutes considered in NRA Fund, a case that Amicus does
not confront, were addressed to separate matters concerning
a single subject -- the agency’s authority to litigate.
Analogous to the NRA Fund statutes (one concerning
authority to appeal, and one concerning authority to petition
for certiorari), one statute at issue here concerns general
removals, and one statute concerns bankruptcy-specific
removals. The latter governs to the exclusion of the
former.

Indeed, the Amicus acknowledges that “if the later
act covers the whole subject of the earlier one and is clearly
intended as a substitute, it will operate . . . as a repeal of
the earlier act.” Posadas v. National City Bank, 296 U.S.
497, 503 (1936) quoted in Brief of Amicus at 25. Hence,
even if this case necessarily must be viewed as one
demanding an “implied repeal” of § 1447(d) in the
bankruptcy removal context, § 1452 meets this test. All of
the means and procedures for removal in the bankruptcy
context are self-contained within § 1452 and Rule 9027, and
reference to any other statute is unnecessary. Had Congress
intended to foreclose appeal of any bankruptcy context
remand order, § 1452 would have been worded, more
simply, to make that bar explicit. The fact that § 1452 does
not say “any order of remand is not reviewable”
persuasively shows that that § 1447-type concept was not to
be imported.

15
Il.

THINGS REMEMBERED WAIVED NOTHING

Lastly, Petrarca makes two waiver-type arguments:
first, that Things Remembered failed to appeal the
Bankruptcy Court’s holding that the bankruptcy removal
was untimely and so "forfeited its right to appeal that
question here," Brief for Respondent at 38-39; and second,
that the question before the Court is moot as a result of
state court actions in Colorado and Pennsylvania. Neither
holds water.

A. Timeliness of the Bankruptcy Removal
(1) is Not the Issue Before This Court
and (2) Was Not Waived.

The Bankruptcy Court’s ruling on timeliness of the
bankruptcy removal is not before this Court; that argument
will be appropriate, if at all, in the Sixth Circuit if this
Court reverses. It makes no sense to say that Things
Remembered failed to "preserve its right to make this
appeal" when this "appeal" addresses the entirely different
question of whether the Sixth Circuit can review the District
Court’s order.

In any event, Petrarca’s analysis is incorrect. Things
Remembered did not appeal the Bankruptcy Court’s decision
because it won. The Bankruptcy Court ordered precisely
the relief that Things Remembered had asked of it: that the
case be transferred to the Child World "home" bankruptcy
court for determination of the motion to remand and all
other issues. Things Remembered did argue to the District
Court for affirmance of the Bankruptcy Court’s order on
two grounds: that the Bankruptcy Court ruling that the

16

general removal was timely was correct and, that the
bankruptcy removal was untimely, incorrect. See Brief for
Appellee (filed Aug. 31, 1993 in Case No. 5:93-CV-1582)
at 5n.4. As Things Remembered there stated, affirmance
can be ordered on any ground, even one not relied on by
the lower court. E.g., United States v. American Ry.
Express Co., 265 U.S. 425, 435 (1924). Finally, the
District Court considered the timeliness of the bankruptcy
removal at length, and opined that the Bankruptcy Court
had been correct in its ruling on that ground. (J.A. 27a-
31a). In short, the issue was fully before the District Court,
is not at all before this Court and so, here, is of no
moment.

B. Neither the Question Before This Court
Nor the Other Question Cited By
Petrarca Is Moot

There are a number of problems with Petrarca’s
mootness argument based on other pending state court
cases, the foremost being that the record in this Court is
devoid of evidence of the basis for it. Because this Court
has neither the pleadings, briefs, orders, nor any other
papers from the state court cases before it, it has no way to
determine conclusively what, Things Remembered submits,
is certainly true: that Petrarca assigned to others his entire
interest in two of the properties, as to which he is no longer
a real party in interest, at issue here (without ever
dismissing his claims on those properties in this lawsuit);
that Colorado and Pennsylvania were the only fora in which
all proper parties, including Petrarca’s assignees, were
amenable to service of process; that the state court actions
involve questions exclusively of state law (involving the

construction of guaranties) and are declaratory judgment
actions only and do not involve the determination of money

17

obligations of Child World; thus that those cases can be
adjudicated without reference to this case, the Child World
bankruptcy, or any question of federal law; that, in any
event, the state court cases involve only two of the seven
properties at issue in this case; and that for all these reasons
the state court actions do not "moot" anything at issue here.

CONCLUSION

Neither Petrarca’s brief nor that of the Amicus
demonstrate that Congress forbade review by the court of
appeals of orders like this one. Rather, the plain language
of the statutes, the analysis of the different removal
schemes, the case law on point, and the revelant policies
behind consolidation of bankruptcy-related litigation,
support the conclusion that Things Remembered has such a

right of appeal.

Accordingly, Petitioner Things Remembered, Inc.
respectfully requests that this Court reverse the Sixth
Circuit’s order dismissing this appeal, and remand this case
to that court for consideration of the merits.

Respectfully submitted,

STEVEN D. CUNDRA,
Counsel of Record
PATRICIA L. TAYLOR
DEAN D. GAMIN
MARK A. GAMIN

THOMPSON, HINE AND FLORY
1920 N. Street, N.W.

Washington, D.C. 20036
(202) 973-2700

Counsel for Petitioner

*
‘ -
5 ¥
*
#4 ;
7
Vi ) >
» 7
(rad A :
- 7
mee -
>a ,
, ° ted
r, : !
yup acy ee
? ,
” Nt oe bri
® ae ; >
Sprit ; es
. Phe “
va-tFe:
AES
me anya e f
te oY ee, Oe? : .
: 2 =*. .
AT AOL e
. Pi . yy st
ap cine. ss eee.
ae si, eee pw
«) Pre | tay ay Ae" -
S fon P % oy
7 at i .& Zz b°
eicve AN Sei
2th
foi gh F
< ~~; vs. .
eT a’ 2
: ever e i i “d
. é ed - F
PAA Se ~ Sis
~yvin J "2 7 Fala <*
‘a? > : e, Ke
a7 > * . v
gt : ont
ava -
v7 : - b Y
ete!
Spt, 4? i
” x . -
4 ve or ?
at y . -
. . i
Op Pan
oy ORS ;
4 PF ite wal
pie »S
is
Po e'
. e ’
; o*®
\ Pa
s - , pt
AL . x
2° C8 ay = f
.% °
*
a -
°
4 ‘5

A-14

THE CONSTITUTION
OF THE UNITED STATES OF AMERICA

ARTICLE I, SECTION 8:

| The Congress shall have Power To Lay and collect

: Taxes, Duties, Imposts and Excises, to pay the Debts and
provide for the commor Defence and general Welfare of the
United States; but all Duties, Imposts and Excises shall be
uniform throughout the United States;

** *

) To establish an uniform Rule of Naturalization, and
| uniform Laws on the subject of Bankruptcies throughout the
United States;

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0590%3A07. Public record. Not legal advice.