Petition for Writ of Certiorari — KFC National Management Co. v. Brown

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(; > | Office Supreme Court, US.

it Ac ROS 6 a FILED

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No. FEB g 1985

ALEXANDER L STEVAS,

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gm: ff

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IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1984

KFC NATIONAL MANAGEMENT

COMPANY . - : . - . Petitioner

versas

MICHAEL L. BROWN ~ .- - . . Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

STEPHEN B. EARLY

KFC NATIONAL MANAGEMENT

COMPANY

1441 Gardiner Lane

Louisville, Kentucky 40213

Telephone: (502) 456-8335

Counsel for Petitioner

WESTERFIELD-BONTE CO., 619 W. KENTUCKY~P.O. BOX 3251, LOUISVILLE, KY.

QUESTION PRESENTED

Whether a United States District Court Judge, can,

sua sponte, deny the statutory rights of this Petitioner by

purporting to “remand” a diversity action to a State Court

on the grounds that “Petitioner has not yet been served

with an initial pleading” thereby attempting to divest the

District Court of jurisdiction, and further limit review,

when Petitioner, a nonresident, has been subjected to the

judicial machinery of the State Court, by having been

served with a State Court Order, and has otherwise strictly

complied with the statutory provisions for the removal of

cases thus conferring jurisdiction upon the District Court.

il

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED ........................ i

OPTEONG BROW wow ccc cece cecceseessces 1

Ps TERT ETTC OTT eee TCT ety Terre 1- 2

STATUTORY PROVISIONS INVOL’ED ......... 2- 4

STATEMENT OF THE CASE .................... 4-7

REASONS FOR GRANTING THE PETITION.... 7-26

I. The District Court’s Order is a Dismissal, al-

though it purported to be a “remand,” because

there is no pre-existing state court action—

filed and of record—to which Petitioner can

WO GO Ds 5k is vce Ae eee ass 7--11

II. The District Court’s order was not issued un-

der the authority of § 1447(c) and is therefore

BOWERS oo. 6 <0 cd00 6ke shee Oe 11-15

III. The Decision of the Court of Appeals con-

clusively deprived the Petitioner of any

remedy whatsoever and sanctions a departure

by the District Court from the accepted and

usual course of removal under 28 U.S.C.

§§ 1441, et seq., thereby denying the statutory

rights of Petitioner ..................0..008 16-26

| MTT Tr te er reer 26

FO TT ee la-l3a

lil

APPENDIX

PAGE

Order of the United States Court of Appeals, Second

ee cet el Ake kha eh awk bias see 8's la

Order of the United States District Court ........... 3a

Letter of United States District Court Deputy Clerk

Acknowledging Removal ................000000. 4a

cca cates \ GGG CEsecavensncéue 6a

Letter from Attorney of Respondent Effecting Serv-

ee Mee I IS CPU ong. ccc cc ccwccsaccasas 9a

PET ETTTRU TR TEC TRCTTS 10a

ES Le 12a

iv

TABLE OF AUTHORITIES

Cases: —

Amalgamated Workers Union of VJ. v. Hess Oil

V.I. Corp., 478 F. 2d 540 (8rd Cir. 1973) ....... 9

Briscoe v. Bell, 482 U. S. 404 (1977) .............. 14

Campbell v. Associated Press, 223 F. Supp. 151

ti 8 SS Ber errer Tre err eee 21

Commissioners of Road Improvement District No. 2

v. St. Louis Southwestern Ry. Co., 257 U.S. 547

SD Ca ec ck CRA R MASE RK AUER R EAN SCORES EER 17, 18, 25

Felton v. Walston and Co., 508 F. 2d 577 (2d Cir.

REE Snead ok catba too eebuaa eaaserans 7

Gravitt v. Southwestern Bell Telephone Company,

Oe Bee SE a Whe RR Sea eASs tenn 13

In re Carter, 618 F. 2d 1093 (5th Cir. 1980) ....... 14

Love v. State Farm Mutual Auto Insurance Co., 542

i; ee. GS CEA Ss BO hk a occ ccccancs vases 22

Lummus Co. v. Commonwealth Oil Refining Co., 195

Ps EE CER Bec HED aoa un wchn ski detes 21

Medlin v. Boeing Vertol Co., 620 F. 2d 957 (8rd Cir.

SN bn 5b oa 60nd kc kenseaesbaeessee es 19, 20

Perimeter Lighting, Inc. v. Karlton, 456 F. Supp.

ee RR Per rye rt errr 17, 20, 22

Roberts v. American Airlines, Inc., 526 F. 2d 757

Se CE 6.2 ken oes eidd kd nekeneetexasan 8

Sheet Metal Workers’ International Assn., AFL-

CIO v. Carter, 450 U. S. 949 (1981) ............ 14

Skinner v. Old Southern Life Ins. Co., 572 F. Supp.

£4 eR rrr rer er 24

Thermtron Products, Inc. v. Hermansdorfer, 423

Ws Se GUE 0k skid aaa ewhe ben sea cde cen 11, 15

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

SUPE Wh dass 0 bea naseunen tuascaskecauaaeers 12

Statutes: —

ee Oh PIES Gb vp eadusuansecdasncebauee es 2

2 fe errr rT rT errr er 21

ee EE nn cu Veeadasakeeann eased 2, 5, 6, 8, 16, 25

eA I bh Ax ka heen deneacs 2, 5, 6, 7, 16-17, 22

A vei. ccswakcaxewsaccxcane 3, 6, 7, 11-15, 26

Miscellaneous:

Black’s Law Dictionary (rev. 4th ed. 1968) ........ 8, 10

SUPREME COURT OF THE UNITED STATES

October Term, 1984

No.

KFC NationaL MANAGEMENT

CoMPANY - - - - - - Petitioner

v.

Hon. Micuaret A. TEvEsca, Judge,

United States District Court,

Western District of New York - Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioner prays that a Writ of Certiorari issue to

review the Order of the United States Court of Ap-

peals for the Second Circuit, entered December 12,

1984, denying any appeal from the order of the District

Court and further precluding any review by way of a

Writ for Mandamus.

OPINIONS BELOW

The Order of the United States Court of Appeals

for the Second Circuit is unreported and is set forth

in the Appendix hereto. The Order of the United

States District Court for the Western District of New

York, at Rochester, remanding the Civil Action styled

KFC National Management Company v. Michael L.

Brown, is unreported and is set forth in the Appendix

hereto.

JURISDICTION

The Order of the United States Court of Appeals

for the Second Circuit was entered December 12, 1984.

2

The Jurisdiction of this Court is invoked under 28

U.S.C. Section 1254(1).

STATUTES INVOLVED

United States Code, Title 28:

§ 1441. Actions removable generally

1) Except as otherwise expressly provided by Act

of Congress, any civil action brought in a State

eourt of which the district courts of the United

States have original jurisdiction, ‘aay be removed

by the defendant or the defendants, to the district

court of the United States for the district and

division embracing the place where such action is

pending.

§ 1446. Procedure for removal

(a) A defendant or defendants desiring to remove

any civil action or criminal prosecution 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 verified petition

containing a short and plain statement of the facts

which entitle him or them to removal together

with a copy of all process, pleadings and orders

served upon him or them in such action.

(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 defendant, which-

ever period is shorter.

3

if the case stated by the initial pleading is not

removable, a petition for 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.

* * x

(d) Each petition for removal of a civil action

or proceeding, except a petition in behalf of the

United States, shall be accompanied by a bond

with good and sufficient surety conditioned that

the defendant or defendants will pay all costs and

disbursements incurred by reason of the removal

proceedings should it be determined that the case

was not removable or was improperly removed.

(e) Promptly after the filing of such petition

and bond, the defendant or defendants shall give

written notice thereof to all adverse parties and

shall file a copy of the petition with the clerk of

such State court, whieh shall effect the removal

and the State court shall proceed no further un-

less and until] the case is remanded.

* * *

§ 1447. Procedure after removal generally

(a) In any ease removed from a State court, the

district court may issue all necessary orders and

process to bring before it all proper parties

whether served by process issued by the State

court or otherwise.

(b) It may require the petitioner to file with its

clerk copies of all records and proceedings in such

State court or may cause the same to be brought

before it by writ of certiorari issued to such State

court.

———

4

(c) If at any time before final judgment it ap-

pears 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 re-

mand shall be mailed by its clerk to the clerk of

the State court. The State court may thereupon

proceed with such ease.

(d) An order remanding a case to the State

court from which it was removed is not review-

able 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.

STATEMENT OF THE CASE

On June 25, 1984, the Supreme Court of Monroe

County, New York, issued an Order (hereinafter re-

fered to as ‘‘State Court Order’’) which ordered Pe-

titioner to make available to Respondent’s attorney ‘‘a

person whose testimony will bind the Company”’ and

‘‘that person is directed to bring with him or her plain-

tiff’s personnel file . . . along with copies of all em-

ployment manuals and personnel rules for hiring and

terminating individuals in effect from January 3, 1982

to September 21, 1983.’’

On July 12, 1984, the State Court Order was filed

in the Clerk’s Office. It was not until August 6, 1984,

however, that the State Court Order was ‘‘served’’

upon Petitioner.’ The Petitioner, a Delaware Corpor-

1The Plaintiff’s letter of August 6, 1984, uses the words ‘‘ served

upon you herewith is an Order signed by the Hon. Reuben K.

Davis commanding you furnish me with certain information .. .”’

(emphasis added).

4)

ation with its principal place of business in Kentucky,

was thereon subjected to the judicial power of the State

of New York.

On August 31, 1984, pursuant to and in strict com-

pliance with the provisions of 28 U.S.C. § 1441 and

§ 1446, the Petitioner filed a Petition for Removal

which set forth the jurisdictional requirements in the

United States District Court for the Western District

of New York, at Rochester, executed a Bond for Re-

moval, and served notice on the Plaintiff below, Index

No. 2652/84, and filed a copy of the Petition with the

Clerk of the State Court, effecting the removal in the

United States District Court for the Western District

of New York. The removal was thus effected well

within the thirty (80) days required by 28 U.S.C.

§ 1446(b).

There was n° Motion for Remand filed by the

Respondent. Nevertheless, on September 26, 1984,

the United States District Court for the Western Dis-

trict of New York, sua sponte, entered an Order pur-

porting to ‘‘remand’’ the matter back to the State

Court. The District Court’s Order states ‘‘that Peti-

tioner has not yet been served with an initial pleading

as is contemplated by 28 U.S.C. 1446 and this petition

is, therefore, premature.’? (emphasis added). The

last sentence of the District Court’s Order states that

“the petition for removal is denied and this matter is

remanded back to the Monroe County Supreme Court.”’

(emphasis added).

Thereafter, Petitioner sought an appeal in the

United States Court of Appeals for the Second Cir-

ee

6

cuit. The relief sought by the Petitioner was founded

upon the following principles:

1. The Petitioner has the statutory right to seek

the protection of the Federal Courts per the Removal

Statute, 28 U.S.C. § 1441(a), a right which may not

be substantially or procedurally denied the Petitioner

when the Petitioner is faced with a State Court Order

thereby subjecting Petitioner, a non-resident of that

state, to the judicial machinery of that state.

2. The District Court’s Order clearly ignored and

subverted the purpose of 28 U.S.C. § 1441, et seq., so

as to deprive the Petitioner of its statutory rights.

The Order was tantamount to a dismissal, and thus

reviewable, wherein it, first, acknowledged the ‘‘action

pending’’ in the New York State Court, then, stated

that ‘‘an initial pleading as is contemplated by 28

U.S.C. 1446” has not been served, and, finally, pur-

ported to ‘‘remand”’ the ‘‘matter’’ back to the State

Court when no state court action—filed and of record—

pre-existed.

3. The District Court’s Order, if not a dismissal,

was not issued under the authority of § 1447(c) nor did

it invoke the grounds for remand specified therein

which would bar review. The Order referred merely

to § 1446 and it was therefore not immune from review

under § 1447(d).

On December 12, 1984, the United States Court

of Appeals for the Second Circuit denied any review

by appeal or by Writ of Mandamus on the grounds

7

that the District Court’s Order ‘‘was clearly based upon

grounds specified in 28 U.S.C. § 1447(c).”’

The dilemma facing nonresident defendants with

respect to the removability of a proceeding in a state

with procedures similar to those of New York is ex-

ceedingly apparent. Under the peculiar pre-complaint

practice of New York, the nonresident defendant, or

even the resident defendant faced with an action posing

a substantial federal question, will be indefinitely

subjected to further state court processes and his or

her statutory right of removal indefinitely delayed,

despite the existence of grounds for federal court juris-

diction, until such time as the plaintiff should choose

to ‘‘formally”’ file an action.

REASONS FOR GRANTING THE WRIT

I.

The District Court’s Order Is a Dismissal, Although It

Purported to “Remand,” Because There Is No State

Court Action—Filed and of Kecord—to Which Peti-

tioner Can be Sent.

There is no prohibition on the Court of Appeals in

the review of dismissal orders, as Petitioner believes

the District Court’s Order was. See Felton v. Walston

and Co., 508 F. 2d 577, 580 (2d Cir. 1977) (court of

appeals reviewed and ultimately reversed dismissal

order of district court) ; Roberts v. American Airlines,

Inc., 526 F. 2d 757 (7th Cir. 1975) (under 28 U.S.C.

§ 2106, a court may affirm, modify, vacate, set aside, or

8

reverse any judgment, decree, order of court properly

before it ; court reviewed and modified dismissal order).

Petitioner believes that the District Court’s Order

was a dismissal, instead of a remand, because ‘‘re-

mand’’ necessarily presupposes a pre-existing state

court proceeding—filed and of record—to which Peti-

tioner can be ‘‘sent back.’’ The elementary definition

of ‘‘remand”’ appears in Black’s Law Dictionary 1457

(rev. 4th ed. 1968) with respect to a ‘‘cause’’ as follows:

The sending back to the same court out of which

it came, for purpose of having some action on it

there.

The District Court could not have sent the matter at

bar back to the New York State Court for the purpose

of having any action on it there.

The District Court’s Order itself shows its misuse

of the term ‘‘remand”’ in light of its internal incon-

sistency and the circumstances of the matter at bar.

The District Court’s Order acknowledges the fact

that judicial machinery had been exercised against

Petitioner wherein it noted the ‘‘action pending”’ in the

New York State Court. However, the record shows

that no action had been filed or was of record in the

State Court; no cause number had been assigned to the

matter. The record shows that there was only a utili-

zation by the Respondent of the special New York

pre-complaint machinery against Petitioner (which

Petitioner will show in Part III of this Petition to be

sufficient for removal purposes under 28 U.S.C. §§ 1441,

9

et seq.). The District Court’s Order also appears to

acknowledge the lack of a ‘‘cause’’ wherein it errone-

ously determined that there was no ‘‘initial pleading’’

within the purview of the removal statute. The Dis-

trict Court’s Order fails to elaborate on what was

meant by its use of the words ‘‘initial pleading”’ or to

support its determination with any caselaw to which

Petitioner could refer.

The Petitioner, therefore, chose the route of appeal

of the District Court’s Order based upon its conclusion

that:

1. The District Judge must have meant, by the

terms ‘‘initial pleading,’’ that there was no state court

action, filed and of record, because the Order otherwise

acknowledged that New York judicial machinery had

been exercised against Petitioner; and

2. The District Court’s ‘‘remand’”’ was therefore a

‘¢‘dismissal’’ because the District Court could not have

‘‘remanded”’ the matter for the purpose of any court

having any action on it, as there was no ‘‘cause’’ on

which a state court could act.

The State Court could not have any further action

on the matter. The Respondent, in order to pursue

utilization of the pre-complaint procedure, must start

over again. Knowing all this, the Petitioner saw as its

only remedy, an appeal of the purported ‘‘remand”’ as

a ‘‘dismissal.”’

In Amalgamated Workers Union of VI. v. Hess

Oil V.I. Corp., 478 F. 2d 540 (3rd Cir. 1973), the plain-

tiffs appealed a district court’s order that purported to

10

‘‘remand.’’? The Third Circuit Court of Appeals held

the district court order to be a dismissal. The cireuit

eourt set forth the pertinent portion of the district

court order as follows:

Plaintiffs have an administrative remedy in the

first instance with the Commissioner of Labor.

That department has far greater expertise and

personnel available to determine the merits of the

claims advanced herein. For that reason, I there-

fore remand this case to the Department of Labor.

(478 F. 2d at 542 n.2) (emphasis added).

In reversing the district court order and remanding

the case to the district court, the circuit court stated:

Although the district court memorandum and

order are ambiguous, we interpret its action as a

dismissal of the complaint .... In effect, the de-

cision amounted to a dismissal of the action, since

the remand was to an agency that had no power to

provide relief. The use of the term “‘remand”’ was

inappropriate since the case originated in the dis-

trict court, not in the Department of Labor. To

‘“remand”’ a cause is to send it back to the court

from which it came. Black’s Law Dictionary 1457

(Revised 4th ed. 1968). See Northern Pacific

Terminal Co. v. Lowenberg, 18 Fed. 339, 341 (Cir.

Ct. D. Oregon 1883). (478 F. 2d at 542 n.1) (em-

phasis added).

It should be noted that the Third Cireuit, in Amail-

gamated, cited the same section of Black’s Law Dic-

tionary as Petitioner cited earlier.

Thus, for there to be a ‘‘remand’’ there must be a

pre-existing court action. If by the use of the words

11

‘initial pleading,’’ the District Court meant that there

was not a state court action, filed and of record (the

only meaning which could be given to those words in

light of the record of this matter) then there cannot

be a ‘‘remand.”’ Since the District Court was in error,

the Second Circuit Court of Appeals erred in not re-

versing the Order and remanding this matter to the

District Court. The District Court initially had juris-

diction and improperly divested itself of such juris-

diction by erroneously calling its order a ‘‘remand.’’

II.

The District Court’s Order, If Not a Dismissal, Was Not

Issued Under the Authority of § 1447(c) and Is There-

fore Reviewable.

This Court must necessarily address the bar of

28 U.S.C. § 1447(d) to review of remand orders if this

Court determines that the District Court’s Order was,

in fact, a ‘‘remand.’’ The bar of § 1447(d) applies

only to a remand and not a dismissal.

Petitioner is fully aware of the difficult, seemingly

insurmountable barrier to review of remand orders

created by 28 U.S.C. § 1447(d). This statute, like all

statutes, is subject to the interpretation of courts. This

Court, in Thermtron Products, Inc. v. Hermansdorfer,

423 U.S. 336 (1976), determined that § 1447(d) must

be read together with § 1447(c) and thereby created an

exception to § 1447(d).

Petitioner strongly urges that the circumstances of

this ease fall within this exception which can be stated

thusly: Jf a district court has jurisdiction, and if it

12

issues an order which purports to remand on non-statu-

tory grounds, then there can be appellate review. This

Court stated:

Section 1447(d) is not dispositive of the review-

ability of remand orders in and of itself. That sec-

tion and § 1447(¢) must be construed together ....

This means that only remand orders issued under

§ 1447(e) and invoking the grounds specified

therein — that removal was improvident and with-

out jurisdiction — are immune from review under

§ 1447(d). (423 U.S. at 346) (emphasis added).

A remand ordered on grounds other than those auth-

orized by § 1447(c) does not divest the federal courts

of jurisdiction. This is the case here. The District

Court’s Order does not make specifie reference to

§ 1447(¢) or § 1447(d) nor uses words indicating that

the case was ‘‘removed improvidently and without

jurisdiction.”’

The progeny spawned by Thermtron further sup-

ports the application of its principles to the case at bar.

In Volvo of America Corp. v. Schwarzer, 429 U.S. 1331

(1976), the district court’s order stated:

‘It thus appears to a legal certainty that this

Court does not have jurisdiction of this action. ...

Accordingly, since the action could not be main-

tained in this Court on behalf of the class for which

it was brought, it must be remanded. 28 U.S.C.

§1447(c).”” (429 U.S. at 1332) (emphasis added).

This Court, in Volvo, denied the petitioner’s appliea-

tion for a stay, stating:

13

[While the District Court may have been wrong

in its analysis, it clearly stated, citing to § 1447(c),

that it considered itself without jurisdiction. The

District Court therefore thought it was acting in

accordance with § 1447(¢), which allows a remand

where an action is ‘‘removed improvidently and

without jurisdiction.”’ (429 U. S. at 1832) (em-

phasis added).

This Court also stated that Thermtron was ‘‘of no help

to applicant as the remand was explicitly based on an

allegedly erroneous finding that the Court ‘does not

have jurisdiction of this action.’ ’’? 429 U.S. at 1333.

(citing Thermtron, 423 U.S. at 343-44).

The District Court Order now before the Court is

distinguishable from the order in Volvo, supra, in that

it neither cites § 1447(¢) nor makes an explicit finding

that the ‘‘removal was improvident”’ or that the dis-

trict court was “without jurisdiction.”’

This Court again considered the application of the

Thermtron principles in Gravitt vy. Southwestern Bell

Telephone Company, 480 U.S. 723 (1977). This Court,

however, distinguished the remand order in Gravitt

from the remand order in Thermtron where, in Therm-

tron, the district court had remanded ‘‘on grounds

wholly different from those upon which § 1447(d)

permits remand.’’ Id. at 723-24. As in Volvo, supra,

the district court in Gravitt, in an opinion more de-

tailed than the one in the ease at bar, reasoned that it

lacked original diversity jurisdiction and therefore

ordered a remand of the case on the grounds that it had

been *timproperly removed,”’ Id. at 723; and Gravitt v.

14

Southwestern Bell Telephone Co., 396 F. Supp. 948

(W. D. Tex. 1975).

The District Court Order now before the Court is

distinguishable from the order in Gravitt, supra, in

that it neither appears to base the remand on grounds

enumerated in § 1447(c) nor use words substantially

equivalent to the words therein, i.e., ‘improperly re-

moved.’’ See Appendix 3a.

In Briscoe v. Bell, 432 U. 8. 404 (1977), this Court

again addressed the Thermtron exception in a footnote,

stating:

Where the order is based on one of the enumerated

grounds, review is unavailable no matter how plain

the legal error in ordering the remand. (432 U. 8.

at 414 n.13) (emphasis added).

Thus, this Court seems to be saying that in order to

apply the § 1447(d) bar to appellate review, there must

be either: (a) specific citation to the statute or (b) use

of the same or essentially the same words as § 1447(c).

This Court denied certiorari to consider the review

of a remand order in Sheet Metal Workers’ Interna-

tional Assn., AFL-CIO v. Carter, 450 U. 8. 949 (1981).

In Carter, the district court had remanded the case,

after judgment, on grounds that it lacked jurisdiction.

450 U.S. at 950. The court of appeals acknowledged

that the remand order itself ‘‘was entered on grounds

specified in [§ 1447(¢) ],’’ but vacated the order because

it occurred after judgment while § 1447(¢) speaks to

‘‘anytime before final judgment ....’’ See In re

Carter, 618 F, 2d 1093, 1105 (5th Cir. 1980) (emphasis

added).

15

Despite the dissent filed by Justice Rehnquist in

Carter, it appears that certiorari was denied where

the court of appeals found that the remand order was

simply not permitted by § 1447(c), i.e., remand must

be before as opposed to after judgment. The situation

in Carter, however, is not the situation posed in the

ease at bar because there is no question whether the pur-

ported remand was ordered before judgment, but only

a question as to the proper grounds upon which the

purported remand before judgment was ordered.

The precedent established by this Court in review

of remand orders before judgment has demonstrated

that the order must either: (a) make specific reference

in the remand order to 28 U.S.C. § 1447(¢), or (b) use

the same or essentially the same wording as § 1447(c)

either in the specific order or, at the minimum, in the

opinion preceding the order. The District Court’s

Order, void of any preceding opinion, met neither of

these requirements where it was neither: (a) a state-

ment citing § 1447(c) or § 1447(d), nor (b) a use of

the same or essentially the same wording as § 1447(c).

In such a ease, appellate review of the error of law

committed is not barred under § 1447(d) as interpreted

by the Thermtron case and its progeny.

2Justice Rehnquist believed that the district court’s “remand

order was entered on grounds permitted by the statute,” stating:

In Thermtron, . . . the Court stated that ‘‘[iJ]f a trial

judge purports to remand a case on the ground that it was

removed ‘improvidently and without jurisdiction,’ his order

is not subject to challenge in the court of appeals by appeal,

by mandamus, or otherwise.” [citing 423 U.S. at 343]. The

District Court remanded this case precisely for the quoted

reason. (450 U. S. at 951).

16

Lea

The Decision of the Court of Appeals Conclusively Deprived

the Petitioner of Any Remedy Whatsoever and Sanc-

tions a Departure by the District Court From the

Accepted and Usual Course of Removal Under 28 U.S.C.

§§ 1441, et seq., thereby Depriving Petitioner of Its

Statutory Rights.

The Court of Appeals sanctioned a departure by the

District Court from the accepted and usual course of

removal under 28 U.S.C. §§ 1441, et seq., with respect

to what constitutes an ‘‘initial pleading’? for removal

purposes. .

When faced with the State Court Order, Petitioner

was subjected to the judicial machinery of the State of

New York, and as a nonresident, sought the protection

of the federal courts through the removal statutes, 28

U.S.C. §§ 1441, et seq.

Title 28, United States Code, Section 1441(a)

states, in relevant part:

[A]ny civil action brought in a State Court of

which the district courts of the United States

have original jurisdiction, may be removed by the

defendant or the defendants, to the district court

of the United States for the district and division

embracing the place where such action is pending.

(emphasis added.)

Title 28, United States Code, Section 1446(b)

states, in relevant part:

The petition for removal of a civil action or

proceeding shall be filed within thirty days after

17

the receipt by the defendant, through service or

otherwise, of a copy of the initial pleading ....

(emphasis added.)

The letter of August 6, 1984, from the attorney for

the Respondent (Appendix, p. 9a) recites that the

State Court Order enclosed therewith was being

‘‘served’’ upon Petitioner. See Perimeter Lighting,

Ine. v. Karlton, 456 F. Supp. 355, 359 (N.D. Ga. 1978)

(‘‘receipt’’ of ‘initial pleading’’ controls removabil-

ity). The Petition for Removal (Appendix, p. 6a) was

timely filed under 28 U.S.C. § 1446(b) and with respect

to this there has been no dispute.

The resultant question, then, is whether the State

Court Order constituted a ‘‘civil action brought in a

State Court’? under § 1441(a) and was ‘‘an initial

pleading’’ under § 1446(b).

The question of what constitutes a ‘civil action

brought in a State court’? was addressed in Commis-

sioners of Road Improvement District No.2 v. St. Louis

Southwestern Ry. Co., 257 U.S.547 (1922). In Commis-

sioners, this Court found that a proceeding in a state

county court to access benefits and damages growing out

of road improvements was properly removable to the

federal district court. This Court noted that the pro-

ceedings in Commissioners were governed by a state

statute prompting a distinction between ‘‘a proceeding

which is the exercise of legislative power and of admin-

istrative character and a judicial suit.”’ 257 U.S. at

554. This Court determined that when the character of

a proceeding before a tribunal has all the elements of a

judicial controversy, the tribunal is functioning as a

18

constitutional court regardless of the fact that the

Supreme Court of the State has found otherwise, and

even if such proceedings could not have originally been

commenced in a federal court. 257 U.S. at 557. This

Court stated:

The question for removal under the federal statute

is one for the consideration of the federal court.

It is not concluded by the view of a state court as to

what is a suit within the statute. (257 U.S. at

557-58).

The main likeness of the facts in the case at bar to

those in Commissioners is that the proceedings in either

case did not involve the filing of a formal complaint and

were not ones which could be commenced in the federal

district court. In the case at bar, the judicial ma-

chinery of the state of New York was invoked prior to

the filing of a formal complaint, as allowed by the law

of New York in a pre-complaint discovery proceeding,

and as a result Petitioner was compelled to appear

before New York courts to defend the claims of the

Respondent in such proceedings.

In Commissioners, this Court noted the limitation

on removal of cases within the original jurisdiction of

the federal court and stated:

This limitation is not intended to exclude from

the right of removal defendants in cases in the

state court which, because of their peculiar form

would be awkward as an original suit in a federal

court, or would require therein a reframing of

the complaint and different procedure. [citations

omitted]. The limitation is that only those pro-

19

ceedings can be removed which have the same

essentials as original suits permissible in District

Courts; that is that they can be readily assimilated

to suits at common law or equity, and that there

must be diverse citizenship of the parties and the

requisite pecuniary amount involved. 257 U.S.

at 561.

In the case at bar, the proceeding in the New York

State Court can be readily assimilated to a ‘‘suit’’

wherein state court processes have been set in action

against Petitioner and, by these processes, Petitioner

is compelled to gather the information to defend, in the

pre-complaint proceeding, the presupposed claims set

out by the Respondent. See the Affidavit accompany-

ing the State Court Order, Appendix, pp. 10a-11a.

Furthermore, Petitioner clearly set forth the

grounds for original diversity jurisdiction of the Dis-

trict Court in its Petition for Removal which were not

contested by the Respondent. The Respondent, having

failed to raise any issue of improper removal, there-

fore waived any defect in removal. Medlin v. Boeing

Vertol Co., 620 F. 2d 954, 960 (3rd Cir. 1980). There

is no question that the District Court properly had

jurisdiction of this case upon removal. The District

Court, sua sponte, erroneously attempted to divest

itself of jurisdiction upon the technical formality of a

lack of an ‘‘initial pleading”’ in the Sti *e Court with-

out conducting an inquiry into the court’s subject

matter jurisdiction, i.e., the alleged amount in contro-

versy and the diverse citizenship of the parties. See

20

Medlin, supra, 620 F. 2d at 960 (court has responsi-

bility to inquire into subject matter jurisdiction).

The question of what constitutes an ‘‘initial plead-

ing’? was most clearly addressed in Perimeter Light-

ing, Inc. v. Karlton, 456 F. Supp. 355, 357 (N.D. Ga.

1978). In Perimeter Lighting, a state court had issued

an order enjoining the non-resident defendant from

certain acts but ‘‘the complaint had not been filed with

the clerk of the Rockdale County Superior Court.’’

The federal district court denied a motion to remand

the case for lack of jurisdiction even though the de-

fendant filed the petition for removal prior to the

plaintiff’s filing of a complaint. The court held that

the defendant’s receipt of a copy of the pending com-

plaint at a hearing on the injunction constituted re-

ceipt of an ‘‘initial pleading.’’ The court discussed the

definition of an ‘‘initial pleading”’ as follows:

Section (b) states that a case may be removed

after the defendant receives the ‘‘initial pleading”’

of the plaintiff ‘‘through service or otherwise.’’

By its own terms, then, the statute does not re-

quire an action to be filed before a petition for re-

moval will be entertained. All that is required

is receipt of the ‘‘initial pleading.’’ [footnote

omitted]. An initial pleading must constitute a

clear statement of the case which will allow the

defendant to examine the basis for the action. In

particular, the initial pleading must be such that

the defendant can intelligently ascertain remov-

ability from its face. (456 F. Supp. at 358) (em-

phasis added).

21

The court, thus, did not confine the definition of an

‘‘initial pleading”’ to a complaint and noted other cases

which held other items to constitute an initial pleading.

456 F. Supp. at 358, 358 n.2; See Campbell v. Asso-

ciated Press, 223 F. Supp. 151 (E.D. Pa. 1963) (draft

complaint); Lummus Co. v. Commonwealth Oil Re-

fining Co., 195 F. Supp. 47 (S.D. N.Y. 1961) (notice

of motion to compel arbitration accompanied by pe-

tition to compel filed with Secretary of State).

In the case at bar, Petitioner (Defendant below)

could and did intelligently ascertain the removability of

the case from the face of the State Court Order with

respect to the original jurisdiction of the federal court

under 28 U.S.C. § 1332. It was never controverted

below that the sole Plaintiff in the proceeding below,

the Respondent herein, is a domicilary of New York

and that the sole Defendant, the Petitioner herein, is

a citizen of Delaware, the state of its incorporation,

and of Kentucky, the state where it has its principal

place of business, such that diversity exists. The Pe-

titioner could, as well, intelligently ascertain from the

State Court Order that the Respondent was seeking

discovery of information for a pending complaint for

wrongful termination of employment and from such

the Petitioner could reasonably ascertain that recovery

would not be below the jurisdictional amount of $10,000.

The Petitioner clearly and properly set forth these

jurisdictional grounds in its Petition for Removal and

such grounds were not controverted by the Respondent

and no Motion to Remand was made.

22

The court in Perimeter Lighting made the follow-

ing statement with respect to the removal of cases

prior to the filing of the complaint which contains

especial relevance to the case at bar:

(‘T]he state court had taken action in a ease not

yet of record. To deny defendant’s right to re-

move in such a situation would allow plaintiff to

effectively block defendant’s right to remove un-

til such time as plaintiff sees fit to file a complaint.

Such a holding would work to defeat the removal

statute’s purpose and allow a plaintiff to keep an

action otherwise removable, in the state court even

after the state court had exercised its power by

enjoining the defendant. (456 F. Supp. at 359).

This rationale, and the voicing by the federal

courts of the right of a nonresident defendant to

seek the protection of the federal courts and to re-

move an action once it had beeen subjected to the

power of a state court by receiving an order, was

echoed in the ease of Love v. State Farm Mutual Auto

Ins. Co., 542 F. Supp. 65 (N.D. Ga. 1982) . In Love,

the court went through an extensive review of the 1948

revision by Congress to 28 U.S.C. § 1446(b). Although

the court was concerned with the ‘‘through service or

otherwise’’ language of 28 U.S.C. § 1446(b), what is

important to the case at bar is the reference to New

York State practice and the recognition of the problems

presented to removal defendants by such practice. The

court stated :

Prior to 1948, a removal petition was in essence

a state court responsive pleading; it was filed in

23

that court within the time permitted to answer a

complaint as established by the state’s rules of

civil practice. In 1948, in an attempt to make the

removal procedure more uniform, Congress revised

section 1446(b) to provide that the removal peti-

tion be filed in federal court ‘‘within twenty [now

thirty] days after commencement of the action or

service of process, whichever is later.’’ 62 Stat.

939 (1948). Under this formulation, of course, the

removal period could not begin until service of

process had been obtained. A problem arose, how-

ever, in those states such as New York which per-

mitted a plaintiff to commence a suit without serv-

ing or filing a complaint, merely by serving the

defendant with a summons. Under the 1948

version of section 1446(b), in such cases the re-

moval period could expire before a defendant

received a copy of the complaint, thus depriving

him of an opportunity to remove the action. It

was in response to this problem that Congress

revised section 1446(b) to permit removal “‘within

twenty [now thirty] days after the receipt by the

defendant, through service or otherwise, of a copy

of the initial pleading.”’ See H. R. Rep. No. 352,

8ist Cong., Ist Sess., reprinted in [1949] U. S.

Code Cong. Serv. 1254, 1262. Thus, the “‘through

service or otherwise’ language was intended to

expand the removal period in states following the

New York Rule. [citation omitted]. Jt was not

intended to diminish the right to removal, by per-

mitting a plaintiff to circumvent the already exist-

ing requirement of personal service through in-

formal service. The Court concludes that the

removal period set forth in 28 U.S.C. § 1446(b)

cannot commence until a plaintiff properly serves

24

defendant with process. (542 F. Supp. at 67-68)

(emphasis added).

See also Skinner v. Old Southern Life Ins. Co., 572 F.

Supp. 811, 813 (W. D. La. 1983) (characterizing the

above quoted language as ‘‘very clear and succinct’’).

This principle—of the right of removal being trig-

gered by the non-resident defendant’s receipt of a

State Court Order——is so clementary that it has even

been accorded a reference in American Jurisprudence:

§ 2415. Requirement that action be ‘‘brought’’.

Before an action can be removed from a state

to a federal court, it must have been *‘brought”’ in

the state court within the meaning of the removal

statute. Whatever the form of proceeding used

to bring a defendant into a particular state court,

a suit is considered “‘brought”’ for removal pur-

poses when that defendant is subjected to judicial

orders. In other words, if the judicial machinery

of a state has been set in motion against a defend-

ant a suit has been brought and—assuming all

other prerequisites for removal have been met—

may be removed. [mphasis added, 32B Am.

Jur. 2d Federal Practice and Procedure § 2415

(1982). ]

In comparing the above cited eases to the case at

bar, the following points must be noted:

1. All the cases cited above were decided after :

motion for remand had been filed by the Plaintiff-Re-

spondent. Here, there was no Motion for Remand.

2. All of the district courts denied the motion for

remand and retained jurisdiction. Here, the District

Court Judge, sua sponte, divested the district court of

jurisdiction.

25

3. The reference by the district courts to case law

and to extensive legislative history implies that the

parties had been afforded the opportunity to brief the

issues prior to the court’s decision. Here, there was no

briefing opportunity.

4. The refusal to maintain jurisdiction was not

done on the Court’s own initiative in any of the cited

eases. Here, the District Court purported to ‘‘re-

mand,” and, in effect, dismissed the case on its own

initiative when, from a review of the caselaw, the con-

clusion is inescapable that the State Court Order was

‘fan initial pleading’? under 28 U.S.C. § 1446(b). This

action of the District Court constituted an abuse of

diseretion.

Residents of the State of New York can do to each

other whatever they choose and whatever is authorized

by that state’s ‘‘Civil Practice Law and Rules.’”?” A

nonresident, such as Petitioner, however, is entitled to

seek the protection of the federal courts whenever the

power of the State of New York is brought against it.

The State Court Order, the subject of Petitioner’s

Petition for Removal, was an instrument which sub-

jected Petitioner to the judicial machinery and en-

forcement mechanism of the State of New York.

This Court has long been assertive in allowing a

non-resident defendant to seek the protection of the

federal courts whenever state action is exercised against

that defendant. Commissioners of Road Improvement

District No. 2 v. St. Louis Southwestern Ry. Co., 257

U. 8. 547 (1922). The Court of Appeals decision af-

firming the District Court Order has indefinitely denied

26

Petitioner, a non-resident, access to the federal courts

thereby subjecting Petitioner to the peculiarities of

New York State practice, effecting an abrogation of

the purpose of 28 U.S.C. §§ 1441, et seq., and conelu-

sively depriving the Petitioner of any remedy what-

soever.

CONCLUSION

Here, where there has clearly been:

1. An error of law committed and a failure to

recognize the propriety of federal jurisdiction ;

2. <A result in which the District Court Judge has

improperly sought to divest the District Court of juris-

diction; and

3. <A failure to cite § 1447(c) or use the same or

essentially the same words as § 1447(c), then,

§ 1447(c) is not a bar to review and a Writ of Cer-

tiorari should issue to review the Order and Judgment

of the Court of Appeals for the Second Circuit.

Respectfully submitted,

STEPHEN B. EARLY

KFC Nationa MANAGEMENT

COMPANY

1441 Gardiner Lane

Louisville, Kentucky 40213

Telephone: (502) 456-8335

Counsel for Petitioner

APPENDIX

la

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 84-7823

KFC Nationa MANaGEMENT

ComMPaNny, - . - : Petitioner-Appellant,

against

Micnart L. Browy, - - - Respondent-Appellee.

ORDER—Filed December 12, 1984

Before Frmnperc, KaurmMayx, and Rosenn,* Circuit

Judges.

Appeal from the United States District Court for the

Western District of New York.

This cause came on to be heard on the transcript of

record from the United States District Court for the

Western District of New York, and was argued by counsel.

On ConsmeraTiIoNn WueEREoF, it is now hereby ordered,

adjudged and decreed that the appeal from the judgment

of said district court is dismissed.

1. Since the district court’s September 26, 1984 order

denying appellant’s petition for removal and remanding

this case back to the Monroe County Supreme Court was

clearly based upon grounds specified in 28 U.S.C. § 1447(c),

we conclude that § 1447(d) bars any appeal from that

order. While appellant has not petitioned this court for a

writ of mandamus, we find that fer the same reason review

*Honorable Max Rosenn, Senior Judge, United States Court

of Appeals for the Third Circuit, sitting by designation.

2a

by way of such a petition would be barred here, as well.

See Thermatron (sic) Products, Inc. v. Hermansdorfer, 423

U. S. 356, 351-52 (1976).

2. Appellee’s motion for damages pursuant to F.R.A.P.

38 is denied. Appellee should, however, receive the usual

costs.

(s) Wilfred Feinberg

Chief Judge

(s) Irving R. Kaufman,

(s) Max Rosenn,

Circuit Judges.

3a

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

ROCHESTER

Civil Action No. 84-0996T

KFC NationaL MANAGEMENT Company, - - _ Petitioner,

Vv.

MicnarL L. Brown, - - - - = Respondent.

ORDER

Petitioner has asked this Court to remove an action

pending in the New York State Supreme Court for the

County of Monroe entitled Michael L. Brown v. Kentucky

Fried Chicken, Index No. 2652/84. My review of the

Petition and the exhibits submitted revealed that Petitioner

has not yet been served with an initial pleading as is con-

templated by 28 U.S.C. 1446 and this petition is, therefore,

premature. Accordingly, the petition for removal is denied

and this matter is remanded back to the Monroe County

Supreme Court.

ALL OF THE ABovE Is So OrDERED.

(s) Michael A. Telesca

United States District Judge

Dated: Rochester, New York, Sept. 26, 1984.

4a

[LETTERHEAD OF UNITED STATES DISTRICT

COURT, WESTERN DISTRICT OF NEW YORK]

Reply To:

(X) 604 U.S. Courthouse

68 Court Street

Buffalo, N.Y. 14202

( ) 282 U.S. Courthouse

100 State Street

Rochester, N.Y. 14614

August 31, 1984

Stephen B. Early, Vice President

and General Counsel

KFC National Management Company

P.O. Box 32070

Louisville, KY 40232

RE: KFC National Management Co. v. Michael L. Brown

CIV 84-996T

Dear Mr. Early:

This transmittal is to inform you that we have received

and filed in our Court on this day, August 31, 1984, an

original Bond for Removal; Petition for Removal; Affi-

davit of Filing a Petition and the civil cover sheet. En-

closed please find your receipt for same.

Your case has been assigned to Judge Michael A.

Telesca of the Rochester Court and the case number is

CIV 84-996T. Please refer to this number on all documents

and correspondence.

For your due consideration, I am enclosing a copy of

our local rules. Please note Rule 13, which sets forth the

proper form for filing papers and Rule 4 which requires

that an attorney who does not have an office in the Western

5a

District of New York shall specify in writing an attorney

of this court upon whom service of papers shall be made.

If you require additional information, please call.

Very truly yours,

(s) Linda M. Kern

Deputy Clerk

Imk

Enclosure

6a

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

No.

KFC Nationa, ManaGeEMENT CoMPANY, - Petitioner,

v.

MicHaeu L. Brown - - - - - Respondent

PETITION FOR REMOVAL

To the Judges of the United States District Court for

the Western District of New York:

The Petition of KFC National Management Company

respectfully shows:

1. Qn or about the 21st day of May, 1984, an action

was commenced against Petitioner in the Supreme

Court of the State of New York in and for the County

of Monroe, entitled Michael L. Brown, Petitioner,

against Kentucky Fried Chicken, Respondent, Index

No. 2652/84, by the service upon Petitioner’s Roches-

ter, New York office of a Notice of Motion.

2. The above deseribed action is one of which this

court has original jurisdiction under the provisions of

Title 28, United States Code, Section 1332, and is one

which may be removed to this court by the Petitioner,

Respondent therein, pursuant to the provisions of Title

28, United States Code, Section 1441, in that it is a

civil action wherein the matter in controversy will

exceed the sum or value of $10,000 exclusive of interest

and costs, and is between citizens of different states.

The Petitioner (Respondent herein) Michael L. Brown

7a

at the time this action was commenced was and still is

a citizen of the State of New York; and the Respondent

(Petitioner herein) KFC National Management Com-

pany at the time this action was commenced was and

still is a corporation incorporated under the laws of the

State of Delaware, with its principal place of business

in the State of Kentucky, and was not and is not a

citizen of the State of New York, wherein this action

was brought.

3. Petitioner files herewith a bond with good and suf-

ficient surety conditioned, as provided by Title 28,

United States Code, Section 1446(d), that it will pay ail

costs and disbursements incurred by reason of the

removal proceedings hereby brought should it be de-

termined that this action is not removable or is im-

properly removed.

Wuenrerore, Petitioner prays that the above action now

pending against it in the Supreme Court of New York in

and for the County of Monroe, be removed therefrom to

this Court.

Respectfully submitted,

(s) Stephen B. Early

General Counsel for Petitioner

KFC National Management Company

P. O. Box 32070

Louisville, Kentucky 40232

(502) 456-8335

8a

VERIFICATION

CoMMONWEALTH OF KENTUCKY a,

CouNTY OF JEFFERSON is

Stephen B. Early, being duly sworn, deposes and says

that he is a Vice President of KFC National Management

Company, Petitioner herein; and that he has read the fore-

going Petition for Removal and knows the contents thereof

and that the same are true of his own knowledge.

(s) Stephen B. Early, Vice President

SUBSCRIBED AND Sworn to before me this 28th day of

August, 1984.

(s) Nancy W. Cope

Notary Public

State at Large

My Commission Expires August 12, 1987

CERTIFICATE OF SERVICE

A copy of the foregoing Petition for Removal was

mailed, postage pre-paid, to Alfred P. Kremer, Counsel for

Respondent, this 28th day of August, 1984.

(s) Stephen B. Early

Counsel for Petitioner

(SEAL)

9a

[LETTERHEAD OF ALFRED P. KREMER]

August 6, 1984

Mr. Dennis Knatzen

Kentucky Fried Chicken

2973 West Henrietta Road

Rochester, New York 14620

Dear Mr. Knatzen:

Served upon you herewith is an order signed by the

Hon. Reuben K. Davis commanding that you furnish me

with certain information pertaining to Michael L. Brown.

This order was obtained upon your prior default.

You have thirty (30) days from the date this order is

served upon you to reply to it.

Very truly yours,

(s) Alfred P. Kremer

Enclosure

10a

“TATE OF NEW YORK SUPREME COURT

COUNTY OF MONROE

Index No.

MicuareL L. Brown - + + + = £Petitioner

pas Friep CHICKEN - - - Respondent

AFFIDAVIT

Micuaet L. Brown, being duly sworn deposes and says:

1. He is the petitioner herein.

2. From January 3, 1982 to September 21, 1983 your

deponent was employed by the respondent.

3. Your deponent consulted his attorney and was ad-

vised that in order to determine whether or not your

deponent had a cause of action against the respondent that

your deponent’s attorney would have to have copies of all

employment contracts, rules and regulations pertaining to

employment and termination of employment which were in

effect during the period of time that your petitioner worked

‘for respondent.

4. Specifically, your petitioner was advised that he

would need your deponent’s employment file containing

among other things your deponent’s application blank, work

record and reasons for termination, any separate record

kept outside of your deponent’s personnel file pertaining to

his termination such as the company’s internal memoranda

dealing with how to answer the inquiry by the New York

State Department of Labor pertaining to your deponent’s

unemployment insurance, copies of all personnel manuals

and rules and regulations pertaining to the hiring and firing

of persons such as your deponent which were in effect

during the terms of your deponent’s employment. Your

deponent was advised that without these your deponent’s

attorney would not be able to proceed his investigation.

lla

do. Additionally, your deponent believes that he has

been fired for improper motives over and above any other

consideration as to whether or not he had a contract of

employment with Kentucky Fried Chicken. Your deponent

wishes to have respondent examined under oath and more

particularly Dennis Knatzon with respect to the procedures

that he used to terminate your deponent.

6. On January 11, 1984, your deponent’s attorney sent

Mr. Knatzon a letter, a copy of which is annexed hereto as

exhibit A. No rely to this letter has been received by your

deponent’s attorney and your deponent believes that re-

spondent has no intention of answering the letter.

7. It is your deponent’s contention that he will be

unable to prepare a complaint without these materials.

8. The materials are all readily available to respondent

and respondent should have no problem in furnishing them

to your deponent’s attorney.

9. Indeed, with the soaring costs of litigation, re-

spondent should welcome the opportunity to furnish these

items to your deponent’s attorney. If respondents have

done no wrong it will be much simpler to dispose of this

matter at this early point at far less expense to itself than

by going through formal litigation.

10. An examination before trial now would certainly

make matters easier for respondent and definitely for your

deponent’s attorney.

11. Your deponent has been advised by his attorney

that Rule 3102(C) provides for such procedures and your

deponent asks that the court make an appropriate order

granting the relief requested.

(s) Michael L. Brown

Sworn to before me

May , 1984

12a

At the Special Term of the Supreme Court (Case 7) held at

the Hall of Justice, Rochester, New York on June 12, 1984.

STATE OF NEW YORK SUPREME COURT

COUNTY OF MONROE

Index No. 2652/84

MicuaeL L. Brown - - - - - Petitioner,

62 Cumming Street

Rochester, New York 14609

v.

Kentucky Frrep CHICKEN . - - Respondent.

PeTiITIONER having moved this court for an order pur-

suant to Rule 3102(c) of the CPLR for an order granting

him an examination before trial, in advance of filing a

complaint, a person whose testimony would bind respondent

with respect to petitioner’s termination and after reading

the affidavit of Michael L. Brown verified May 21, 1984 and

upon the proof of personal service upon the respondent and

the respondent being in default for want of an appearance

or an answer it is

Now on motion of Alfred P. Kremer, attorney for the

petitioner, it is

OrvereD that within thirty days of the service of a

certified true entered copy upon Kentucky Fried Chicken,

the respondent herein, that you, the Kentucky Fried

Chicken shall make available to petitioner’s attorney,

Alfred P. Kremer, One Exchange Street, Rochester, New

York, a person whose testimony will bind the company with

respect to the employment of Michael L. Brown from Jan-

uary 3, 1982 to September 21, 1983 and that person is

directed to bring with him or her plaintiff’s personnel file

13a

containing copies of any papers or document signed by

either of the parties pertaining to the terms of Michael L.

Brown’s employment along with copies of all employment

manuals and personnel rules for hiring and terminating

individuals in effect from January 3, 1982 to September 21,

1983.

Dated: Rochester, New York

June 25, 1984

(s) Reuben K. Daniels

J.S.C.