Opposition Brief — Thompson v. Housing Authority of the City of Los Angeles

Supreme Court, US. |

FILED

? JUL 24 1986

JOSEPH F. SPANIOL, JR.

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No. 85-2159

In The

Supreme Court of the United States

October Term, 1985

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ALPHONSO THOMPSON,

Petitioner,

v.

THE HOUSING AUTHORITY OF THE CITY OF

LOS ANGELES, a public corporation;

and MICHAEL H. SALZMAN,

Respondents.

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MEMORANDUM IN OPPOSITION TO PETITION FOR

A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

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Tuomas J. CasaMassIMa

Anpverson, McPuarim, & Conners

Attorneys for Respondents

and

. JaMes L. Ferro

Anperson, McPuarus, & Conners

624 South Grand Avenue

19th Floor

Los Angeles, CA 90017

(213) 688-0080

COCKLE LAW BRIEF PRINTING CO., (800) 228-8845 (tone) 75

or call collect (402) 342-2831

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TABLE OF CONTENTS

Susszor Inpex

Page

I

Summary of the Case 1

Ii

Reasons for Denying the Writ 4

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Conelusion .. 6

TABLES OF AUTHORITIES

CaSsEs

Rice v. Sioux City Memorial Park Cemetery, 349

U.S. 70, 75 S.Ct. 614 (1955)

Thompson v. Housing Authority of the City of

Los Angeles (9th Cir. 1986) 782 F.2d 829

STATUTES AND RULES

U.S. Sup. Ct. Rule 17, 28 U.S.C.A.

U.S. Sup. Ct. Rule 28.1, 28 U.S.C.A.

Fed. R. Civ. P. 60, 28 U.S.C.A.

Fed. R. Civ. P. 16, 28 U.S.C.A.

Pages

6

No. 85-2159

—

Vw

In The

Supreme Court of the United States

October Term, 1985

ray

Vv

ALPHONSO THOMPSON,

Petitioner,

v.

THE HOUSING AUTHORITY OF THE CITY OF

LOS ANGELES, a public corporation;

-and MICHAEL H. SALZMAN,

Respondents.

ty

|

MEMORANDUM IN OPPOSITION TO PETITION FOR

A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

Ly

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I

SUMMARY OF THE CASE

The Petition of Alphonso Thompson is directed to the

Decision of the United States Court of Appeals, for the

Ninth Cireuit, which affirmed the dismissal of the action

with prejudice for failure to comply with pretrial orders

and rules of the District Court. The Court of Appeals

for the Ninth Cireuit held that the Trial Court did not

bo

abuse its discretion in dismissing the action or in denying

relief from operation of the judgement.’

The case originated with a complaint filed by Al-

phonso Thompson, concerning his termination from em-

ployment with The Housing Authority of the City of Los

Angeles.

On January 26, 1984, the District Court issued a Pre-

trial Order, scheduling the Pretrial Conference for June

4, 1984. At the Petitioner’s request, the Pretrial Con-

ference was continued to July 16, 1984. (District Court

Memorandum Order of Dismissal, Petition, page 26.)

Pursuant to the local rules for the Central District

of California, Thompson was required to prepare a Pre-

trial Conference Order and lodge with the clerk of the

court seven days before the conference. (Thompson v.

Housing Authority of the City of Los Angeles (9th Cir.

1986) 782 F. 2d 829, 830.) Thompson failed to comply

with this rule. (/d.; District Court Memorandum Order

of Dismissal, Petition at page 26.)

At the Pretrial Conference on July 16, 1984, the court

continued the Pretrial Conference to August 135, 1984, as

no order had been lodged. (Thompson, supra, at page

831.) The court also issued an order directing Thompson

to show cause why the action should not be dismissed for

his failure to prepare for the Pretrial Conference. (Jd.)

At the August 16, 1984 Pretrial Conference, Thomp.-

son had again not lodged a proposed Pretrial Conference

1U.S. Supreme Court Rule 28.1 not applicable as the Hous-

ing Authority is a public corporation.

Order and was again not ready to proceed. (/d.) Mind-

ful of the consequences of dismissal, the court granted

Thompson one final opportunity to prepare for pretrial.

(District Court’s Memorandum Opinion of Dismissal, Peti-

tion, Page 27.) The court extended the discovery cutoff

to September 13, 1984, and continued the Pretrial Con-

ference to October 15, 1984. (Id. at page 28; Thompson,

supra, at page 831.) The court also specifically warned

Thompson’s counsel that ‘‘I will give you one more chance

....If you are not ready the next time, I will dismiss the

ease.’’ (Thompson, supra, at page 831.)

Thompson failed to comply with the local rules for

the Central District of California and this Specific Order

of the court and at the October 15, 1984 Pretrial Confer-

ence, the court dismissed the action for Thompson’s fail-

ure to comply with the local rules, Federal Rule of Civil

Procedure, Rule 16, and the court’s specific order. (Jd.)

On appeal, the Ninth Cireuit Court of Appeals af-

firmed the dismissal, holding that the trial court did not

abuse its discretion in dismissing the action, or in deny-

ing relief from the operation of judgement under Fed-

eral Rule of Civil Procedure 60. (Thompson v. Housing

Authority of the City of Los Angeles (9th Cir. 1986) 782

F.. 2d 829.)

co)

4

II

REASONS FOR DENYING THE WRIT

The petition raises no issues which merit a Writ of

Certiorari.

i. The first issue raised in the petition requests this

court to make a factual determination as to whether peti-

tioner, ‘‘in fact, failed to comply with the court’s order

to be ready for pretrial on October 16, 1984,...’’. (Peti-

tion, page 2.) The petitioner is seeking a readjudication

of the facts and such a question is not of the character

of reasons that should be considered by this Court pur-

suant to rule 17.1. (U.S. Sup. Ct. Rule 17.1, 28 U.S.C.A.)

2. The second question raised by the petition is sim-

ilarly flawed. This question requires this Court to make

the factual determination as to whether respondents were

‘‘substantially culpable’’ for ‘‘unreasonably refusing to

sign [the Pretrial Conference Order].’’ (Petition, page 3.)

As is true of the Petitioner’s first issue, this issue

does not merit review on Writ of Certiorari pursuant to

this court’s Rule 17. (See U.S. Sup. Ct. rule 17.1, 28

U.S.C.A.) In fact, both issues 1 and 2 of the petition are

moot, as the Court of Appeals for the Ninth Cireuit was

able to render its decision without considering the appro-

priateness of a dismissal with prejudice for technical

deficiencies in a party’s attempt at compliance with the

local pretrial rules, as is stated in footnote 1 of that court’s

decision. (Thompson v. Housing Authority of the City

of Los Angeles (9th Cir. 1986) 782 F. 2d 829, 831, fn. 1.)

3. The third issue raised in the petition, is still anoth-

er restatement of the same issue eluded to in questions | &

2, i.e., Whether the district court’s dismissal of the action

for petitioner’s failure to comply with local pretrial rules,

5

Federal Rule of Civil Procedure 16, and the specific order

of the District Court, raises an issue of public importance.

This petition raises no such issue.

The petition concerns itself with the very limited ques-

tion, of pertinence only to the petitioner and his Attorney

of Record. Petitioner states that ‘‘there are many re-

ported cases on the subject of dismissal for failure to

comply with court rules,... ”’, and that ‘‘there is a split

of authority on the affirming or overruling of such cases.’’

(Petition at page 11.) Yet petitioner cites no such cases.

Petitioner goes on to state that ‘‘no case has been found

by counsel that has considered the question raised in the

,

instant case.’’ (Petition at page 11.)

If by that sentence petitioner means that there are

no reported cases by this Court addressing the issues

raised in the petition, then petitioner is correct as the

issues raised by the petition are not of the character of

reasons that should be considered by this court for cer-

tiorari pursuant to rule 17.1. (See U.S. Sup. Ct. Rule

17.1, 28 U.S.C.A.)

As to the propriety of the District Court’s action in

dismissing the ease and denying the motion for relief

under Federal Rule of Civil Procedure 60, ample author-

ity is eited in the opinion of the Ninth Cireuit, 782 F. 2d,

829, a copy of which petitioner has included in his petition

beginning at page 14.

This ease, in fact, involves no dispute among the cir-

cuits, nor a dispute between a federal court and a state

conrt of last resort; nor does it involve a departure from

the accepted and usual course of judicial proceedings.

This case has no prospective application and is of such

isolated significance, that it should not be before the Su-

6

preme Court. The concluding statement of this Court in

Rice v. Sioux City Memorial Park Cemetery, 349 U.S. 70,

75 S. Ct. 614 (1955), is dispositive of the petition before

the court and compels its denial. The Court stated:

‘* |. it is very important that we be consistent in not

granting the Writ of Certiorari except in cases in-

volving principles the settlement of which is of im-

portance to the public, as distinguished from that of

the parties, and in cases where there is a real and

embarrassing conflict of opinion and authority be-

tween the Cireuit Courts of Appeals.’ Layne & Bowler

Corp. v. Western Wells Works, Inc., 261 U.S. 387,

393, 43 S. Ct. 422, 423, 67 L. Ed. 712.

‘‘Writ of Certiorari dismissed.’’ (349 U.S. at 79, 75

S. Ct. at 619-620).

III

CONCLUSION

It is therefore respectfully submitted that the peti-

tion for a writ of certiorari should be denied.

Respectfully submitted,

THomas J. CASAMASSIMA

ANbDERSON, McPuHaruin, & CoNNERS

Attorneys for Respondents

and

JaMES L. FERRO

Anperson, McPuaruin, & CONNERS

By: /s/ THomas J. CasAMASSIMA

ANbDERSON, McPHaruin & CoNNERS

One Wilshire Building

Nineteenth Floor

624 South Grand Avenue

Los Angeles, California 90017-3320

(213) 688-0080