Opposition Brief — Ford Motor Credit Co. v. United States District Court

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Supreme Court, U.S.

se. Fi£Lsep

So JUL 311987

No. 87-31

JOSEPH F. SPANIOL, JR.

CLERK

In The

Supreme Court of the United States

October Term, 1987

f).

FORD MOTOR CREDIT COMPANY, a corporation,

Petitioner,

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON,

Respondent,

and

JOHN STRIBLING FORD, INC., a corporation,

Real Party in Interest.

BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MicHae.t L. WrILuiaMs

WituuMs & Troutwing, P.C.

1100 Standard Plaza Building

1100 Southwest Sixth Avenue

Portland, OR 97204-1020

Telephone: (503) 295-2924

Counsel of Record for

Real Party in Interest

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

or call collect (402) 342-2831

QUESTION PRESENTED

The Real Party in Interest does not agree with the

statement of the question presented by Petitioner. The

question, more precisely stated, is: whether a district

court has discretion to remand a properly removed case

to state court after all federal claims have been eliminated

on the motion of the party resisting remand, and when

such remand will not waste judicial resources or unduly

burden the parties with duplicative discovery or delay in

trial date.

TABLE OF CONTENTS

Page

Question Presented

_ Table of Authorities

; poe

Opinions Below 2

Jurisdiction 2

Statutes Involved

Reasons for Denying the Writ

1. The present case does not pose the forum

shopping problem of Cohill; here, the parties

resisting remand themselves chose to elim-

inate the federal claims well before trial... §=2

2. Thermtron did not reverse UMW v. Gibbs;

the district courts still must exercise discre-

tion to avoid unnecessary decisions of state

law, sometimes leading to remands for

grounds neither expressly authorized nor ex-

pressly prohibited by 28 U.S.C. Sec. 1447(c).

Conclusion .. 6

iil

TABLE OF AUTHORITIES

Page

CasEs

Carnegie-Mellon University v. Cohill, (No. 86-1021)

eert. granted, 107 S. Ct. 1283, 94 L.Ed.2d 141 (1987) 2,3

Fox v. Custis, 712 F.2d 84 (4th Cir. 1983) 5, 6

IMFC Professional, etc. v. Latin Am. Home

Health, 676 F.2d 152 (Sth Cir. 1982) ‘5 5, 6

In re Romulus Community Schools, 729 F.2d 431

(6th Cir. 1984) 5, 6

St. Paul Mercury Indemnity Co. v. Red Cab Co.,

303 U.S. 283, 287 (1938) 3

Thermtron Products, Inc. v. Hermansdorfer,

423 U.S. 336 (1976) 4,5, 6

United Mine Workers v. Gibbs, 383 U.S. 715 (1966) ..... 3, 4

Wren v. Sletten Const. Co., 654 F.2d 529 (9th Cir.

1981) 4

STaTuTES

28 U.S.C. Sec. 1447(c) 3, 4, 5

28 U.S.C. See. 1447(d) 4

No. 87-31

c-)

In The

Supreme Court of the United States

October Term, 1987

4).

FORD MOTOR CREDIT COMPANY, a corporation,

Petitioner,

, A Ne

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON,

Respondent,

and

JOHN STRIBLING FORD, INC., a corporation,

Real Party in Interest.

BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

wit

Real Party in Interest, JOHN STRIBLING FORD,

INC., respectfully prays that the Court deny Petitioner’s

writ of certiorari to review the Order of the United States

Court of Appeals for the Ninth Circuit entered April 3,

1987.

OPINIONS BELOW

The Real Party in Interest adopts the Opinions below

as set forth by Petitioner as accurate.

JURISDICTION

The Real Party in Interest adopts the Statement of

Jurisdiction as set forth by Petitioner.

ray

STATUTES INVOLVED

The Real Party in Interest adopts the Statutes In-

volved as set forth by Petitioner.

fay

STATEMENT OF THE CASE

The Real Party in Interest agrees with the Statement

of the Case as set forth by Petitioner.

REASONS FOR DENYING THE WRIT

1. The present case does not pose the forum shopping

problem of Cohill; here, the parties resisting remand

themselves chose to eliminate the federal claims well be-

fore trial.

This Court has granted certiorari in Carnegie-Mellon

University v. Cohill, (No. 86-1921) cert. granted 107 S. Ct.

1283, 94 L. Ed.2d 141 (1987), which presents the question

of ‘‘[w]hether a district court has authority to remand a

properly removed case to state court for a reason not set

forth in 28 USC Subsection 1447(c)—i.e., elimination, by

amendment of the complaint, of the federal claim that had

formed the basis of removal...’’ Cohill Brief at i.

Cohill raises the problem of forum shopping; the case

at bar does not.

The plaintiffs in Cohill voluntarily amended their com-

plaint to eliminate the federal claims and simultaneously

moved for remand. These actions permit the inference

that the plaintiffs may have wrongfully manipulated the

forum in which the litigation would be conducted.

There is a long-standing policy against such manipu-

lation because it wastes the resources and time of the

judiciary and litigants. St. Paul Mercury Indemnity Co.

v. Red Cab Co., 303 U.S. 283, 287 (1938).

In the present case, the federal claims were eliminated

as a result of defendants’ motion for summary judgment,

not some manipulation by plaintiff. Then, once those fed-

eral claims were dismissed, the district court, in remand-

ing the case, simply followed the unequivocal policy elab-

orated in United Mine Workers v. Gibbs, 383 U.S. 715, 725

(1966), which requires that ‘‘needless decisions of state

law should be avoided both as a matter of comity and to

promote justice between the parties, by procuring for them

a surer-footed reading of applicable law.’’ Id.

In Cohil! the policy requiring federal courts to avoid

needless decisions of state law collides with the policy

against allowing a party to manipulate pleadings and pro-

cedure in order to avoid or create federal jurisdiction. In

the instant case, there is no such policy conflict. Rather,

the only policy issue was resolved in accordance with this

Court’s holding in Gibbs in that the district court decided

not to retain jurisdiction.

Because Gibbs was not a removal/remand case, but

one filed originally in federal court, the only alternative

to the district court’s retaining jurisdiction of the state

claims in that case was dismissal. However, the policy

and factors set forth in Gibbs—judicial economy, conveni-

ence and fairness to litigants—would support remand as

well, under the proper circumstance. (The district court

here expressly considered these factors and found that

remand was clearly fair and efficient.) In fact, to require

dismissal instead of remand would be a waste of the liti-

gants’ time and resources and a triumph of form over sub-

stance. See, e.g., Wren v. Sletten Const. Co., 654 F.2d 529

(9th Cir. 1981).

2. Thermtron did not reverse UMW v. Gibbs; the

district courts still must exercise discretion to avoid un-

necessary decisions of state law, sometimes leading to re-

mands for grounds neither expressly authorized nor

expressly prohibited by 28 U.S.C. Sec. 1447(c).

Petitioner relies heavily on Thermtron Products, Inc.

v. Hermansdorfer, 423 U.S. 336 (1976), for the proposition

that a case may only be remanded upon the grounds set

forth in 28 U.S.C. See. 1447(c), specifically, cases ‘‘re-

moved improvidently and without jurisdiction.’’ This is

an incorrect reading. Rather, Thermtron holds that cases

so remanded are not reviewable under 28 U.S.C. See. 1447

(d) while cases remanded on other grounds are reviewable.

Id. at 350.

While the Court in Thermtron did state that Congress

probably never intended to extend ‘‘carte blanche author-

ity’’ to the district courts on the issue of remand, 7d. at

351, it did not state that no other grounds for remand

would be acceptable. It simply held that the ground given

in Thermtron, i.e., an overcrowded docket as a basis fer

remand of both federal and state claims to state court, was

reviewable, and upon review, unacceptable.

Cireuit Court cases reading Thermtron as permitting

remand only upon the grounds stated in 28 U.S.C. Section

1447(c), e.g., Ryan v. State Board of Elections of State of

Illinois, 661 F.2d 1130 (7th Cir. 1983) and Levy v. Weiss-

man, 671 F.2d 766 (3rd Cir. 1982), are factually similar to

Thermtron in that the reasons given for remand were not

grounded upon any proper authority. However, in a case

where these were good reasons to remand, and the author-

ity to remand was well-grounded in case law, the Fifth

Circuit approved remand ‘‘based on clearly articulated au-

thority.’? IMFC Professional, Inc. v. Latin American Home

Health, Inc., 676 F.2d 152 (5th Cir. 1982). As that Court

said, abstention and pendent jurisdiction are two such

authorities and ‘‘the discretionary element that inheres in

[pendent jurisdiction] allows remand of non-federal is-

sues.’’ Id. at 159.

The Fourth and Sixth Cireuits also allowed remand

upon the proper authority of pendent jurisdiction. Jn re

Romulus Schools, 729 F.2d 481 (6th Cir. 1984) (remand

proper in cases of pendent jurisdiction without reliance

upon statute); Fox v. Custis, 712 F.2d 84 (4th Cir. 1983)

(although the District Court is permitted to dismiss state

claims once federal claims are dismissed, fairness and ex-

pedienecy permit remand to state court.)

The holdings in IMFC, Romulus and Fox are not in

conflict with Thermtron; they are just factually dissimilar.

The present case is akin to IMFC, Romulus and Foz in

that remand was based on the district court’s proper au-

thority to exercise discretion in pendent jurisdiction situ-

ations.

CONCLUSION

The Petition should be denied.

Respectfully submitted,

MicuaEL L. WILLiaMs

Counsel of Record for Real Party

in Interest

July 27, 1987.

MicHaet L. WiILLiaMs

WiuuMs & Troutrwine, P.C.