Opposition Brief — Cannon v. Rowen

(916) 925-6620

Counsel for Respondents

Sacramento, CA 95815

2710 Gateway Oaks Dr.

Suite 300 South

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Table of Authorities

Statement of the Case

Summary of Argument

Argument

Conclusion

ii

Cases:

7 Moore, Fed. Prac. § 60.33

p.- 504 (1972)

Bankers Mortg. v. U.S., 423 F.2d

73, 78-79 (5th Cir. 1970)

Vv. S

2N.D. of California, 779 F.2d 517,

520 (9th Cir. 1985)

e it Cc =

Alley, 820 F.2d 1121, 1123

(10th Cir. 1987)

Gallea, et al. v. United States

of America, et al., 779 F.2d 1403

(9th Cir. 1983)

odwi Ve ome u

Co., Inc., 352 F. Supp. 413,

416 (1973)

Indian Head Nat. Bank of Nashua

v. Branelle, 689 F.2d 245, 249

(lst Cir. 1982)

London v. U.S. Fire Ins. Co.,

531 F.2d 257 (5th Cir. 1976)

Robinson v. Ball, 534 F.2d

63, 65 (5th Cir. 1976)

> Vv re) 1 J ’

407 F.2d 807,809 (7th Cir. 1969)

ii

Hermansdorfer, 423 U.

96 S.Ct. 584, 589, 46 L.Ed. 2d

542 (1976)

U.S. 140, 143, 55 S.C. 6,

244 (1934)

Statutes:

28 U.S.C. § 1447{c)

28 U.S.C. § 1447(d)

F.R.Civ.P. Rule 60(b)

Ss.

iii

, 293 6

79 L.Ed.

2¢4¢5,-6,7,-8

1,5,6,9

27304e7,8

No.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

—

DONALD E. CANNON, Petitioner,

Vv.

LEWANNE ROWEN, et al., Respondents.

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STATEMENT OF THE CASE

Although the Petitioner’s statement

of the case contains argument, the facts it

sets forth are essentially correct. The

pertinent inquiry is whether the Court of

Appeals appropriately dismissed the appeal

for lack of jurisdiction pursuant to

28 U.S.C. § 1447(d).

SUMMARY OF ARGUMENT

An order of the District Court

remanding an action to the state court is

not reviewable notwithstanding the fact the

District Court also entered an order in the

same decree denying Petitioner’s motion to

vacate a state court judgment pursuant to

F.R.Civ.P.

Rule 60(b) for the following reasons:

1. A Rule 60(b) motion may only

address orders and rulings emanating out of

the court in which the motion was filed and

therefore such a motion was inappropriately

brought before the District Court to vacate

a state court judgment.

2. An order of the District Court

properly remanding a case to the state

court under the grounds set forth in

28 U.S.C. § 1447(c) is non-reviewable

notwithstanding the fact the same District

Court decree contained an order denying a

motion to vacate a state court judgment

under F.R.Civ.P. Rule 60(b) in that the

later motion and order thereon did not go

to the merits of the Petitioner’s case.

ARGUMENT

The Petitioner first asserts that the

denial by the District Court of its motion

to vacate a judgment pursuant to

F.R.Civ.P. Rule 60(b) is reviewable. If

the judgment sought to be vacated emanated

out of the court wherein the motion was

filed and was not coupled with an order

remanding the case, the Petitioner’s

proposition might be correct. However in

this case not only was the overall thrust

of the District Court’s ruling an order

remanding the case to state court, the

F.R.Civ.P. Rule 60(b) motion was not even

properly before it. The District Court was

being asked to vacate a state court

judgment. It appears well settled that a

Rule 60(b) motion is limited to addressing

orders and rulings emanating out of the

court in which the motion is filed. The

Court in Goodwin v. Home Buying Investment

Co. Inc., 352 F. Supp. 413, 416 (1973)

stated the rule as follows:

In so far as plaintiff

relies on Rule 60(b) of the

F.R.Civ.P., the court can

only observe that such

reliance is misplaced when

the judgment from which a

party seeks relief was not

a judgment of the court in

which the relief ie sought.

Taft v. Donellan Jerome,

Inc., 407 F.2d 807, 809

(7th Cir. 1969); 7 Moore,

Fed. Prac.

§ 60.33, p. 504 (1972)

See also Indian Head Nat. Bank of

Nashua v. Branelle, 689 F.2d 245, 249 (lst

Cir. 1982); Bankers Mortg. v. U.S., 423

The most important initial inquiry

really is whether or not the District Court

remanded the case under the grounds set

forth under 28 U.S.C. § 1447(c). That

section mandates remand if it appears “that

the case was removed improvidently and

without jurisdiction.” Although the

grounds are stated in the conjunctive, it

is well settled that they are to be

considered in the disjunctive and if the

District Court finds that either the

removal was improvident or without

jurisdiction, remand is required. In other

words, although the District Court may have

jurisdiction of the case, if it was

improvidently removed, a remand is required

under 28 U.S.C. § 1447(c) and the order

remanding the case is not subject to review

pursuant to 28 U.S.C. § 1447(d). See

Thermtron Products Inc. v. Hermansdorfer,

423 U.S. 336, 343, 96 S.Ct. 584, 589, 46

L.Ed. 2d 542 (1976); Chlorox v. U.S. Dist.

Court for N.D. of California, 779 F.2d 517,

520 (9th Cir. 1985); London v. U.S. Fire

Ins. Co., 531 F.2d 257 (5th Cir. 1976);

Robinson v. Ball, 534 F.2d 63, 65 (5th Cir.

1976); Federal Deposit Insurance Corp. v.

4/4/41

Alley, 820 F.2d 1121, 1123 (10th Cir.

1987).

The District Court in this case

specifically found that the case was

untimely removed and therefore

improvidently removed pursuant to

§ 1447(c). (See Appendix page 10a).

Accordingly, in that removal ruling was

specifically made pursuant to

28 U.S.C. § 1447(c), the non-reviewability

provisions of § 1447(d) become applicable.

The Petitioner nevertheless asserts

that a narrow exception has been carved out

by this Court in Waco v. U.S. Fidelity & G.

Co., 293 U.S. 140, 143, 55 S.C. 6, 79 L.Ed.

244 (1934) which purportedly holds that an

order entered prior to a remand order is

appealable even though the remand order is

not. It is submitted that this Court did

not decree such a blanket exception in Waco

but rather allowed appellate review of a

court order dismissing a third party

defendant entered prior to the order of

remand. The rationale of the Waco decision

was similarly addressed by the Ninth

Circuit in Gellea, et al. v. United States

of America, et al., 779 F.2d 1403 (9th Cir.

1983). Briefly stated this rationale is

that if the District court issued an order

preceding the remand order going to the

merits of the plaintiff’s case, such as an

order dismissing a party as in Gallea and

in Waco, it could be reviewed. However

this is not the case at bar. The order

which the Petitioner seeks to appeal was

not an order dismissing a party as in

Gallea and Waco but rather an order denying

a motion under F.R.Civ.P. Rule 60(b). The

Court’s order denying the Petitioner’s

motion certainly was not. an order going to

the merits of the Petitioner’s case and in

fact as previously pointed out, was a

motion not properly before the District

Court in that it did not address a

judgment emanating out of the District

Court.

CONCLUSION

The petitioner acknowledges and it is

certainly the law that a remand order

cannot be reviewed if grounded upon the

provisions of 28 U.S.C. § 1447(c).

Nevertheless, the Petitioner contends the

an order denying a motion to vacate a state

court judgment issued in the same ruling

but prior to the order of remand, can be

reviewed. Such is simply not the law in

that the District Court based its remand

order under the grounds set forth under 28

U.S.C. § 1447(c) and its ruling on the Rule

60(b) motion was simply not a ruling

addressing the merits of the Petitioner’s

claim if such an exception of non-

reviewability does even exist under 28

S/t4/

S//s/

4/441

a |

U.S.C. § 1447(d). As such, the petition

for a writ of certiorari should be denied.

Respectfully submitted,

DATED: July, 1988 HEFNER, STARK & MAROIS

By jg -

ARCHIE HEFNER

Attorneys for

Respondents.