# Opposition Brief — Ford Motor Credit Co. v. United States District Court > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_2306%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1988 - **Citation:** 484 U.S. 1041 ## Text 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). Vv FORD MOTOR CREDIT COMPANY, a corporation, Petitioner, v. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON, Respondent, and JOHN STRIBLING FORD, INC., a corporation, Real Party in Interest. fy Vv BRIEF IN OPPOSITION TO PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT fy Vv 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. a TABLE OF CONTENTS Page Question Presented _ Table of Authorities ; poe ii Opinions Below 2 Jurisdiction 2 2 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). Vv 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. ra Vv BRIEF IN OPPOSITION TO PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT wit vv 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. i) 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 Vv STATUTES INVOLVED The Real Party in Interest adopts the Statutes In- volved as set forth by Petitioner. fay Vv STATEMENT OF THE CASE The Real Party in Interest agrees with the Statement of the Case as set forth by Petitioner. ty Vv 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. 4) 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.) 6 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. 2 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. 1100 Standard Plaza Building 1100 Southwest Sixth Avenue Portland, OR 97204-1020 Telephone: (503) 295-2924 Counsel of Record for Real Party in Interest é —. - ne eo eee | a aaa ae rs --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_2306%3A2. Public record. Not legal advice.