Petition for Writ of Certiorari — Williams v. Howard Johnson's, Inc.

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‘. CHartes E. WiLu1aMs, ‘Petitioner,

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-Howarp J OHNSON’ ’s, ING. OF WASHINGTON, |

3 Respondent.

Petition for Writ of Certiorari to the United States Court of

Appeals for the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

CHartes E. WmLLIAMS, = *

= Petitioner, Pro se :

“ --—-—-«: 1829 Shepherd Street, N.W.

Washington, D.C. 20011

Puzss or Braow S. Anans, Wasurmwaron, D.C.

a ¢

: "INDEX AND TABLE OF CASES :

; Page

Options Below edesus seebeceeeees tcnecwsbedsevegs:) ae

Jurisdiction sixeees Sivan pie siakuacencegt bod owe 2

| Statutes Involved . uae wise ‘saipeeces seteeds +2, App. 1a Ay

uf . Questions Presented | i Na cest pee debagedgentemange iH 2.

“Statement ......... cs Via See casees vegies S

“The Parties ...... tee Nata AM Ba pare eee oe

Background \; Sane aimee Wescacestuaed Cine. 8

The Gtavanidh. SSE Rea RENE Sameera

Ths Pleniings @ iPreaitert Gawd Scie sve 8

Undisputed: Evidentiary Facts \..........2...2-. 10

Contentions Advanced’ Below ..........fceeccee0. 12

Procedural WINES, oie feces cbicct deri

Reasons for Allowance of the Writ. ees sse eee ee. x 17 od

_¥, A Substantial Departure from Accepted Pro-

* gedure Was Sanctioned Below ........:...... ~- 17

i: The oan Below Creates a Conflict in the

II. The Dediiet is in Conflict With the Decisions of 7

This Court .......... vie bie b'ede MUCUS Sune edees 19 . 3

IV. The Decision Below Creates Intracirenit Conflict oe

——¥- ‘This Case Presents Extremely Important Issues

of Statutory Construction ...............645- 20

Conclusion § Sieitiy ov shed Snead ootre : sibacké 21

Appendix Wane sees f ABS ESR EEL

MMIII css s ss cv css sso gayeep ene se cade ae

Opinion Below. marae © pede Lk Welle tA

b \

— Index and Table of;Cases Continued

ees \ . CITATIONS a ¥,

Cases: 9 id Page

-Alpaugh v. Wolverton, 36 S.E. 2d OO oxcecweri _.8, App. 8a

Anderson v. Abbott, 321 U.S. 349 2.0.2... ce cece 15 .

Angle v.:Chica , St. P., M. & O. Ry. Co., — 1 ...13, 14.

_ 'Braen v. Pfei er Oil Transp. Co., 361 U.S. 129 ........ 19

- Brazier v. Cherry, 293 F: 2d 401-.....5.5.......0000. 19

ete fe Merchants & Miners Transp. 00, 230 U. S. 4

- Cahill v; N.Y. N.H. & H. RR. Co., 351 TS. 183°....... “17

Th Cheshire, The, 70 U.S. BR chs ceased; ee ould a aua 9: -

"+ Gaimpbell-y. B2.S...365 U.S..85 6... ...06 Gece. Por see

" Civil Rights Cases, 4 3) > Sere A aT ee 443 —

Commercial Molasses Corp. v. N. Y. Tank Barge Mos |

i / Mn MEE G6 50 enn d-c0pceadcasuncO Swen caee 12

Dickinson v. Petroleum Conversion Corp, 338 U. S. 507 20

Dillard v. C. rity. Co., 199 B. 2d 948 2. es 3 os... 15

_ Equitabl e Ins. Co. v. Halsey, sera & Co., 312 Lae

eee a Re oe Livensscsbcnntades 7. 4~§—<

Foman v.: Davis, Stk USS. TUB... osc ceed euneesens casa: ce

- Freeborn v: Smith, 69 U.S. 160... ...2. ccc. eee 14

’ Fonkv. U.S. 200 US. 371 ......8 5. .5cc00 eee 18 |

. Garner-v. ‘Louisiana, 368 US. 157 Scupeteacees pire aa

Geta ¥. Wisinta. 37 8 reer eer he

Harris v. _ * ai keane |

Henry v. Virginia, 374 U.S-98 ..2............. SS ushas 21

Homelite v. Rerun Real Co.; 272 F. 2d 688 ........ 20

+ Horey v. Elliott, 167 U.S, 409 ............. Dicndeeey ae.

: Interstate Circuit, c. v. U.S., 306 U.S. 208 ... - ate ig

a — ‘Life Ins. Co. v: Bartels, pega ‘i i

tv, + Meade ad. ia th tos edwedics cé dust twidewd icc

- Lombard v, Louisiana, 373 US. 267 <aqcadudendsiubin —

. Michalic v. Cleveland Tankers, Inc., S68 U. S. 325 Seer ae

Maggio v. Zeitz, 333 U.S. 56 2.0... cece cece eee 19, 20

Monroe v. Pape, 365.U.S. 167°. .6:..2..... Pekasaetbee. 16

Nash v. Air erminal. Services, 85 F. Supp. 545 ..-... 11

Norfolk Tidewater Terminals v. Wood owing Corp., |

O’Dwyer v. Comniissioner, 266 F. 2d 575 esee Debnke 13

- Pacific-Atlantic S.S. Co. v. U. S., 175 F. 632 anne ee WD.

Peterson v. City of Greenville, 373 U. S. 244 . sake knes 21

«, Bigoom wv. Legge; 21°5:-P TES ooo se ccc cece esesess 7

Poindexter v. Greenhow, 114 U.S. 270 ......... geeeee. 14

Me BE hs chdseaWet er cediken 14

Randolph v. Virginia, 119 S.E. 2a Sif, wats. 21

_ Reynolds v. Cochran, 365 U.S.525 Ko... ceed eee ee

Robey v. Keller, 114 F.2d°790 «20.0... cece cence he @

Robinson v. Fl RIE. SR aS eee 21 «

Rochin vy. California, 342 U.S. 165 ...........s.008- «<* 16

Six Carpe eS ad ts ad ae Rép, 695 VPae'd penikohae me

> Snead v. U. S., 217 F. 2d 912’... oe... eee iba ewes HAR

Southern Cross $.S. Co. v. Firipis, 285 F. 2d 651 ...... 13.

- Southern Ry. Co. v. Crosby, 201 F. 2d 878 .....:. Giese

Speiser v. Randal, 357 US. BiB 55 0) 34 seed anc 18

_ Thompson. v, Virginia, 374 U.S. 99 .........0........ 21

Webster v. Watts, 116 Eng. Rep: Fos. 2550000055. eS

Williams v. Hot Shoppes, Inc., a, ree ee

293 Fs: Bd BBB co. kc cece ft eatiadiecnsdibeka.: ©.

SPUN ehccn dns 3 «fais caerdXeunnuatinensos = 5

Williams v. Howard J ohnadi, ie ine. of Washington, |

Os Mo cakes cebccescccabessecel .2, App. 5a

| 323 FB. 20/102 2.0... cee cece cece neces ndy 12; App. 5a

_ Williams v, Howard Johnson’ s Restaurant, 268 F. 2d

ME uGens os i kdkeenincéeneen Webepaptog pints 6, 13, App. 8a —

Wolfe v. U: 8, 991 US. 7-20.00... 500. CAT PEETEE ES os: 18

Wood v. Virginia, 374 U.S. 100 i iiss i cercewel oe de 21

_ Srarures:

28 U.S.C. §§ 1254(1), 2101(6), 2106 . Giadawasececahcou oa:

$§ 1343, BOUO sc ccenes Aee> oie camtechutmnene - we

- os §1404(a) sosseceee (bee ae des ee eeee eeece 3:

42 U.S.C. .§§ 1983, 1985 (3) essen’ iyi ae ee

(OEP nat aah, ges Bag eateais ue 2

§1988°... whbhideacenas 2, 3, 6, 12, 14, 19, App. 2a

Index and Table of Cases. Continued \ HE

Pritchard v. Norton, homie td 2 th 7 ae

2d 153 .... Gakic hele en een:

Pritchard v. Smith, 289 F.

Randall v. Kreiger, 90 U.

Act or Marce 1, 1875, s 124, 18 Stat, 596, $64, 3. -2, App. 2a 3

"Roma, Ras oF Crm, Paoonona: mal

Rules 1,-43(a) ..... ats Rapes ioe | oeeee Bi |

Bale 8(8) «os... sessees Sank sen) Se teceaaes 9

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Rule 15(b) «.....2...... wits115558,15,17, 18, App. a

se ig pe ARE Ee Ree RE eet geome Ty 12,17

Rules 33, 36,37 ...... Mivasvels ao dbedeicds - +15, 16, 17, 20

aN I SiS oc ecsve cotpesie onde. esussechsereal

| Mibubee 36, 868} :...00ce5ccicicecs dice

"+ Beales A1(b), BB (a) °c scan sve ings jeesvecese AB Mf.

~ Rules 60(b), 75(h) .......50....0.. PO IA

Va, Bua or Rioums §1 .. 5 US li tsdewsldsin ett eeh toned 13

_ “Va. Cops Ann. §§ 1-10, Fe a eee § Bieeoh sad es Hig ie

SS ROI. ficid o iahk bw onidvaticas saan 13

Starums or Wasratmeren raz Sacox, 13 Edw, yee.

aaa WS.” Searle sive’ Whadkia ia cAIgs ainep Ss a |

APES SES Ea ae ye cee ae

as yr rage eoaceead | ~- a c

_ Moopr’s Inpustmiat, Manan, 976 (4964) ....... ee

" Nuwe, Pre-Truat (1950) ..........0. A. vas 16

Va. Arr’y Gaw. Ors, (1961) .......... ek ay Oa a

Wormuth, The Present Status of the Civil Rights aaa

Se 158 Fi jawande ws See

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“Oocronms ‘Tamas, 1964,

_ PETITION FOR WRIT OF CERTIORARI

To). the Honordtie Chief Justice of the United States:

- . and the Associate Justices of the bates Court

_ of the United States:: :

gCharles E. Williams, petitioner, prays that a writ.

of certiorari issue to review a final-order entered by SOR

| Rhee on ee ee 3

~ Cireuit Sy 4 1965.

. 2

. id ;

OPINION Ss BELOW .

The initial decision -for respondent (R., II, 192),

210 F. Supp, 295, was printed for the court below i in’

7 ae :

the appendix to plaintiff’s brief (Pl. CA App. VII).

. The decision vacating the judgment and remanding

the cause (R., -I, 2), is reported at 323 F. 2d.102. On.

remand, the case was again dismissed (R., I, 52) (PI.

, cs App. XI), and. the decision affirming’ dismissal.

cs (R., TX 7 1), | F. 2d A Spears in the appendix, —~

in, fra. :

| — JURISDICTION :

The jadguasat: sought to be reviewed was paneer

February 4, 1965. (R., IX, 12, 21.) A timely motion —

to amend the. saine, primarily, to establish: its absolute |

. verity, was filed February 25, 1965, (R., IX, 23) and

. denied pro forma as of March 8, 1965. (R., IX, 77.)

v, The jurisdiction of this Court’ is invoked under 28

U. S.C. §§ 1254(1), 2101(¢), 2106, and 42 U.S.C. 8 i984. °

- .

‘STATUTES INVOLVED

The statutes involved, 42 U.8:C. §§ 1983, 1985 (3),

1988 and the equal accommodations sections of the...-" -

Civil Rights Act of 1875, are. at in the appendix,

infra.

: QUESTIONS PRESENTED

naa (Statutory Construction)

Equal Protection of Laws: | i

1. Whether respondent (auithdteed by charter ad

the corporation laws of Delaware and Virginia to op-

erate restaurants in interstate and foreign commerce

the same ‘as natural ‘persons ) acted merone the srape

1 The transcript has been Prepared and certified in 19 vols.

| ¢.

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of vested siderite and, nevertheless, under color of

oe the charter’ and corporation laws when it discrimi-

s. . nated against petitioner solely on racial grounds, .

hel

2. Whether the’ failure or neglect of the Common-.

, “wealh’s attorney to investigate petitioner’s complaint

to him of being racially excluded from restaurants

operated in his jurisdiction by: competitor restaurant .

corporatiohs (to determine whether’ they unlawfully. .

conspired to refuse business dealings with Negroes or -

otherwise acted beyond the scope of authority vested

aa the ‘state), constituted an official sanction-of, or ac-.

ail qamemics in, or giving. color to, such discrimination.

Due Process of Law:

3.. Whether petitioner was denied the right to fully

and fairly prove his claim (of the denial of equal pro-—

tection under color of law or his alternative claim. for

federal protection of the right of due process of law —

' by enforcement of state and common law remedies).

because of: the judicial misapprehension of: (a) the.

substantial. inconvenience limitation of.'28 U.S.C.

§ 1404(a) ; (b) the quantum of proof required to estab-

pord a prima facie case under 42 U.S.C. §§ 1983,

985(3) ; (c) the purpose of 42 U.S.C. § 1988. to secure

ros rocess by incorporating state remedies in the civil

ts acts; and (d) the rights secured xi the’ Federal

Rules of Civil Procedure. |

4. If, on this’ record, recovery may be “had ‘aes

42 USC. §§ 1983, 1985 (3), 1988, then, are the equal

accommodation sections of. the Civil Rights Act of

3 The se lia charter, irreapestive of whether incorporation

ya was under a special act or general law, constitutes state legislation.

FLuprcHEs, PRIVATE Commenasanane § 3640 (1964 rev. vol.).

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_ 1875 (voided only in cases: of purely private action

without the sanction of law, in both state* and com-

merce* jurisdictions without reference to the Congres-

sional purpose to supplement existing federal and

state remedies) presently constitutional as supple-

. : Wat

mentary legislation? And; if so, does the term ‘‘inns’’

embrace the ‘‘House”’ (tavern, inn, alehousé, or vic-

tualing house) within the statute creating the common .

law right of action? (See Note 8, infra.)

5. Whether, irrespective of the outcome of the case,

petitioner may, by separate or supplemental’ claim, re-

cover the full costs incurred, or a reasonable portion

. thereof, in litigating his claim in the transferee forum .

where it may properly be inferred from the record

that the transferor court was induced by misrepresen-

tations to relinquish jurisdiction and transfer the case

to the forum of respondent’s choice; and, if not,

whether costs may be taxed against respondent for its

refusal to make a full disclosure of relevant facts

within its peculiar knowledge during discovery and

for petitioner’s successful resistance of respondent’s

ef‘orts to enforce a sanction erroneously ay for

* Civil Rights Cases, 109 US. 3 (1883).

‘4In view of the holding in the Civil Rights Cases, the Act was -

invalidated in its entirety, as applied to private discrimination un-

supported by state action, siuce Congress did not intend it to have

‘ @ separable application to purely private discrimination: in the

‘ commerce jurisdiction. Butts v. ‘Merchants & Miners Tronep. Co.,

230 U.S. 126 (1913).

The contention for the present vitality of the Act to supplement —

federal and state civil rights remedies has considerable merit since,

under the rules of construction, the invalidating decisions are

limited to the precise facts to which applied. ‘The question is ripe

for decision. See Petition for Certiorari, Williams v. Hot Shoppes, .—

Inc., 370 U.S. 925 (1962); and Francis D. Wormuth, The Present . .

‘Status of the Civil Rights Act of 1875, 6 Uran L. Rev. 153 (1958).

merely sailed leave to conform the pleadings and

evidence under Rule 15(b), i I, 45-48, 55-58, 59;

and R., IV, — :

" STATEMENT P

This ‘asesibiatadi represents the idle of an .

extended litigation arising out-of the racial ‘exclusion.

of an invitee November 5, 1959, from a public restau-

rant operated by a business corporation i in ARTARGEA,

‘Va.

The Parties

Petitioner was and is still a citizen seidaad in the

District of Columbia. The respondent, a Delaware

corporation,* then had and still maintains executive

offices in the District of Columbia from which HOW-

ARD JOHNSON’S facilities are operated in Wash-

ington, D. (0., Maryland, and Virginia. During 1959,

Negroes were accommodated in all such. facilities ex?

cept those located in Virginia. i a

Background .

Petitioner, a Negro, ait like ai of his class,,

had been subjected to persistent, invidious, racial dis- —

-erimination by interstate corporations operating res- —

taurants on the interstate highway system of the

- United States, set out in 1958 to prove that such dis-

' erimination constituted a civil injury redressable

under the civil rights acts. The court below affirmed _

S Sinenins was the wholly owned putaitiney: of the Howard

Johnson Co., a Marylazd corporation, whose consolidated balance ©

sheet disclosed. assets and liabilities,” at the end of 1963, of

$49,335,308 ; net sales of $124,315,532, and net income of $5,391,818.

(Admissions 2 & 6; R., I, 10, 12, 35) and Mooor’s InpuersiaL

aired 976 (1964).

< a

dismissal of the first such suit. Its holding became

the first federal decision insulating: the: corporate

restaurant keeper against liability for an acknowledged |

civil injury. (See note 19, infra.) The decision has

since been relied on, cited, ‘harmonized, or referred to —

in the reported state and federal decisions (including

the dissent, 365'U.S. at 729) at least 38 times.

Petitioner, entirely convinced of the merit of his

position, instituted suits in the District of Columbia

against Hot Shoppes, Inc., a conipetitor of the re-

spondent, in 1959, and against the respondent in 1960.

_ Meanwhile, nationwide agitation resulted in several

court decisions and the federal Public Accommoda-

tions Law of 1964 invalidating various forms of state

imposed segregation in semi-publicly and hice

operated ets” facilities,

| The segregation laws had. feen regarded. for nani

’ . a half century as having modified the common ‘law.

Thus, with the elimination of such laws, petitioner

_ began to emphasize the applicability of state and: com-

' mon law redress under 42 U.S.C. § 1988. However,

the courts below, apparently, irritated by his persist-

ence im litigating the claim, flatly denied the benefit

of the statute and Rule eae). of the Federal eave

The Gravance

- Petitioner felt aggrieved by the state laws idan |

which the respondent had been created, domesticated,

licensed to deal with the public, extensively regulated

by law in the public interest, and then either permitted .

or required by Virginia officials to discriminate Sea

_ the public on racial grounds.

a ee v. Howard Johnson’s Restourah , 268 F. 2d 845

(1959). | SSas .

| ae

In addition, it appeared that the common law action

of case for the arbitrary revocation of the tavern, ale-

house, or victualing house keeper’s invitation held out

to all’ (distinguishable from redress for breach of the

strict common law innkeeper’s. obligation) was also

available under the Virginia statutes.’ Hence, peti-

7 Siz Carpenters Case, 8 Co. Rep. 290, 77 Eng: Rep. 695 (KB.

1610). ‘‘If there is no misconduct or impropriety * * * the land-.

lord * * * of an * * * alehouse * * ® could not revoke the invita-

tion held out to all, and could not without sufficient reason eject

him (the invitee) from it.’’ Pigeon v. Legge, 21 J. P. 748, 744, 5°

- W. R. 649, 650 (Exch. Ch, 1857). But ‘‘it is not every noise, nor

every circumstance alarming to a very timid person, which will

justify’’ exclusion from a public house, tavern,-or victualing house.

See Webster v. Watts, 11 Q. B. 311, 324, 116 ped Rep. 492, 498 .

(Q.B. 1847).

®Va. Cope ANN: § 1-10 (1950) (1964 Cum. Supp. ) denials,

‘‘The common law of England, in so far as it is not repugnant to

the principles of the Bill of Rights and Constitution of this State,

‘shall contirtue in force within the.same, and be the rule of decision,

except as altered by the General Assembly.”’

The Virginia decisions holding that. only the legislature may “alter ie ?

the common law are set forth i in the Plaintiff’s Trial Brief, PP. 45

(R., I, 39).

Va. Conn ANN. §1-11 (1950) provides: “Phe right and benefit -

- of all: writs, remedial and judicial, given by any statute or act of

Parliament, made in aid of the.common law prior to the fourth

- year of the reign of James the First, of a general nature, not local -

to England, shall still be saved, in so far as the same are consistent

with the Bill of Rights — Constitution of this State and Acts of

Assembly.’’

Accordingly, the STATUTE OF WESTMINISTER THE Szconn, 13 Edw.

1, c. 24 (1285), :provides: ‘‘In cases whereas a Writ is granted

out of the Chancery of the Fact of another, the Plaintiffs from —

henceforth shall not depart from the King’s Court without Remedy,

because the Land is transferred from one to another. (2) And in

the Register of the Chancery there is no special Writ found in

_ this Case, as of a House, a Wall, a Market, but the Writ is granted

against him that levied the Nusance. (3) And sf a House, Wall, or

' and other things which is to his injury, ete:) ]

tioner felt aggrieved by the decisions which were gen-

erally conceded as having abrogated the right of re-

covery for breach of the invitor’s s implied under- ©

taking.° |

Thus, this action for Sis iia civil penalty was

instituted in the District of Columbia November 4,

1960. Jurisdiction was invoked under 28 U. 8. C.

§§ 1348, 1355. (R., IT, 1.)

The Pleadings & Transfer of Case

‘The simple allegation of racial discrimination under

color of the segregation statute had been held insuffi-

cient to permit proof of the enforcement of such segre- -

gation in restaurants by state offigers.”® Therefore,

) the original complaint i in this action was drawn with

suck: tike Be eliened to enother, the Writ shall not be denied» but

from henceforth, where in one Case a Writ ts granted, in like Case, :

when like Remedy falleth, the Writ shall be made as

used before:

“1 (4) Questus est nobis A. quod D. injuste, &. Levavi\ domum,

murum, mercatum, & alia quae sunt ad nocumentum, (A has ©

complained to us that D has unjustly aliened a house, wall\ market,

**(5) And if such Things leyied be pesecrie from one to —

the Writ shall be thus:

“[Questus est nobis A. quod B. & C. ‘eeneiiien: bi. (A has com- . -

plained to us that B and C have aliened, ete.) ]”’

And ce. 50 provides that ‘‘No man shall depart from the King’s

Court without Remedy.’’ (Emphasis supplied.)

* Alpaugh v. Wolverton, 184 Va. 948, 86 8.E 2d 906 (1946); and

Randolph v. Commonwealth, 202 Va. 661, 119 S.E. 2d 817 (1961),

followed by the courts below even though the judgment had been

vacated and cause remanded by this Court, 374 U.S. 97 (1963).

1° Williams Vv. Hot oes ‘Ine., 110 U.S. App. D.C. 358, 293

F. 2d 835 (1961). .

pielbiedindtiy to reflect the substance of the. claim at = ot

the outset. (R., IT, 1-9.) -

But the respondent, saat ae to the court that

it did not understand such terms as “under color of

state law, custom, or usage,’’ or “‘license,’”’ or ‘‘fraud,’’

or ‘‘public accommodations,’’ still insisted upon ‘‘a.

more definite statement.”” (R., II, 22-25.) Petitioner,

: though doubting the good faith of the objection, never-—

theless, consented to amend the complaint s0 as to

eliminate the possibility « of-an issue under Rule 8(a)

_ and facilitate the proceedings. (R., ii, 42-45 ; Pl. Aff-

davit, 1-6, R., IX, 36-41.)

Thereafter, the action was transferred to the East- :

"ern District of Virginia, a court with one judge sitting

in ‘two divisions. (R., II, 73-75.). The ‘transfer was ©

induced by representations to the transferor court (a

-- court with 18 judges.and a staff of pretrial exam-

_iners) based on the suppression of relevant facts bear-

ing upon its abilify to make a bona fide defense in the

District of Columbia.” (Motion for Change of Venue,

R., II, 16/21, 51-53; Pl. Affidavit, 6-14, R., LX, 41-49.)

Toward the end of pretrial discovery, the complaint

was again amended with the written consent of the

respondent’s attorneys, prior to the filing of the

answer,” in order to reflect the “discovered” facts.

(R., II, 154-156.)

11 “Concealment of thie truth © © * is, in-fact, prima facie evi.

dence of fraudulent intention.’”’ The Cheshire, 3 Wall. (70 U.S.)

231, 234 (1866). ‘‘A- statement of a half truth is as much a

: misrepresentation as if the facts stated were untrue.’’ Equitable. -

Life Ins. Co. v. Halsey, Stuart & Co., 312 U.S. 410, 426 (1941).

12 The ‘opinion of the court below gives the erroneous impression |

that the complaint was amended three times, instead of twice, due

to pleading ineptitude; that the Rule 15(b) contention was ad-

vanced on appeal fot the first time in an attempt to sustain a fourth

amendment; and that petitioner — the litigation im-

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seksi Dit iat ti is

ee ee ee a ee ee ee a Ce Se a ee a ee ene Te

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-.- metropolitan area of Washington, D.'C. except those -

Undisputed Bvidentiary Facts

Petitioner, a Negro, sexi to be served as a custo-

mer in the respondent’s restaurant in the City of Alex-

andria, Va., during regular business hours November

5, 1959.. Although clean and-orderly, his application

was refused on racial grounds. cleat 8, and

Tr., R., V, 5-6, 18-23.) ae

‘By charter, the respondent was authorized “to carry

on’? the restaurant business, ‘‘as fully and to the same

extent as na persons might or could do,’’ in inter- -

state commerce; and the respondent was so engaged in

1959. (Certified Copy of sag ae and Admission 1 1,

_RB., IT, 107-108, 139; and Tr., R., V, 57.)

The Alexandria restaurant has been open to the gen-

eral public under state licenses, since 1941 for the pur-

pose of retailing food, wine, ale, and beer primarily

for consumption on the premises. And it has been con-

tinuously held out to the general public for that pur-

+ pose without notice that Negroes would not be accepted

as customers.. (Ans. to Interrog. 3, R., II, 96; Ad- -

mission 4, R., VII, 17; and Tr., R. , V, 78, 65-66, 67,)

- During 1959, the respondent regarded anyone, ‘in-

cluding a Negro, who applied for restaurant service as

a prospective customer. And Negroes were accepted

as customers at all Howard Johnson’s facilities in the

located in Virginia.- Hence, petitioner, though not

personally distasteful or otherwise objectionable to re-

-spondent, having been accepted by respondent as 4

customer at facilities outside of Virginia, was, never-

theless; excluded from the Alexandria restaurant de-

spite the fact that the arbitrary exclusion: of Negroes

therefrom was not deemed necessary to the operation ©

, °

ae no. a

of the business. (Admission 22, R., I, 14, 36; Pl. Ex.

8, pp. 47, 49, 58, 54; and Tr., R., V, 66-68.)

In ‘this connection, the District Court refused to

‘compel disclosure of the precise reason for such dis-_

crimination (see Interrog. 70-74, Pl. CA App. TV) ~

and would not permit examination into the matter a...

the trial. (Tr. R., Vv, 10-74.) —

The petitioner complained to the Commonwealth’s |

attorney for’ the. City of Alexandria. concerning his

exclusion on November 5, 1959, from two restaurants

_in his jurisdiction operated -by competitor interstate

corporations. But the latter took no’ action. (Tr,, R.,

~ V, 51-52.)

_- The Commonwealth’s attorney wiiglea restaurants -

as within the Virginia segregation statute and so ad-

vised those who made inquiries during 1959. (Tr., R.,

_V, 42.) And the respondent was aware of his attitude.

[Interrog. 12(b), 12(d) & Ans., R., II, 80, 97.] .

' The District Court had been of the same opinion.”

But in 1960, the Virginia Attorney General announced ~

that, i in his opinion, the segregation statute did not ap-

ply to restaurants,“ and the respondent thereafter

desegregated (admitted Negroes to) the Alenpeaieie

restaurant, (Tr., R., V, 84-88.) : :

Plaintiff testified relative to the injury sustained

and the costs incurred in the effort to vindicate federal

rights. (Tr. B., V, 8, 9-15, 33.) © ides

y \

"8 Nash'v. Air Terminal Services, 85 F. Supp. 545, 548 (1949).

“Va. Arty Gen: Ops. 278-281 (1961) ; (R, V, 37-88.)

12 SSS aes ets

First, it was contended that the-foregoing evidence

established a prima facie case of civil injury ca

by either a usurpation of corporate authority or |

action or inaction of a state official. Hence, it ta

urged, the burden was on the respondent.jo rebut: the

prima facie case with precise evidence ef the induce-

_ ment for the arbitrary discrimination against Negroes .

_in Virginia during 1959.

The only testimony offered by stadiadid was the -

deposition of a dead employee who had never been an

officer. This, of course, Was not binding on the. cor-

poration.“ The “‘best evidence’’ rule required the re-

spondent to produce the hest evidence (testimony of .

an officer) of the disputed fact, viz., whether the ‘state

- eustom of racial segregation induced its discrimina-

- tion against petitioner. .Thus, respondent’s produc-:

- tion of weak evidence when strong evidence was avail-

"able leads to the conclusion that such evidence would

have been adverse. i

Only the respondent actually knew: whether the state

or its agents induced its decision to discriminate

against Negroes during 1959. Therefore, its silence

‘became evidence in the petitioner’ 8 favor.”*

But petitioner’ 8 argument that proper application |

of the “‘best evidence’’ and “negative evidence’? rules .

Rule 26(d) (2), Fup. R. Cwv. P.;' Williams v. Howard: John.

son’s, Inc. of Washington, 323 F. 2d 102, 105 (4th Cir. 1963).

18 Interstate Circuit, Inc. v. United States, 306 U.S. 208 (1953).

‘The ordinary rule, based on considerations of fairness, does not

place the burden upon a litigant of establishing facts peculiarly .

within the knowledge of his adversary.’’ Campbell v. United

Miates, OE TS. 05, 96(1PSE)» Commmeraiel Hotenes Corp. ¥, F- &

, Tank —_— Corp., 314 U.S. 104, 111 (1941).

iigee {~~ 4 ‘ :

aioe

eto. ie © BB ° . ny - a

: “~

-to the respondent relieved ‘iitiaai sine saaking

further proof of state action was flatly rejected.” poke

Trial Br. 15-17; R., I, 39.) ;

Alternatively, it was argued that 42 U.B8.C. § 1988

‘incorporates: (a) thé state and common law remedies”

(notes 7, 8, supra); (b) the Virainia BILL OF RicHTs,

‘ §1, which prohibits enforcement_of any oppressive

“compac' 2 (here, the corporate charter to which the

state is a patty) which tends to “deprive or divest”?

citizens of ‘‘liberty’’ and the pursuit.of ‘“happinese”’ |

and (ce) Va. Copz ANN. § 8-858: (1950) which au-

. thorizes anyone to apply for a writ to.relieve against _

a. corporate usurpation where. the Commonwealth's

attorney fails to do so." oe : ee

But the: court below, though fully aware of ‘‘the

substantial inconvenience and embarrassment to which

gor of the Negro race are subject in the denial to

them of the right to be served in public restaurants,’

preferred to-believe that the. wrong complained of in

“4

= ‘ 2

| Sias e oy 4 =x wv ;

‘ a “ . ‘ >;

_- 4 Prior, Fourth Circuit holdings involving the best or negative

, evidence rule were disregarded, ¢.g.: Southern Cross 8.8. Co. v.

Firipis, 285 F. 2d 651, cert. denied, 365 U.S. 869 (1961) ; O’Dwyer

. Vv. Commissioner, 266 F. 2d 575, cert. denied, 361 U.S. 862 (1959);

Snead v. United States, 217 F. 2d 912,:cert. denied, 8348 U.S. 971 —

(1955) ; Pactfic-Atlantic 8.8. Co. V., United? States, 175 F.. 2d 632,

cert, denied, 388 U.S. 868 (1949).

18 The evidence supports the inference that the. Alexandria rest-

aurant was held out or advertised to the public in bad faith. At ©

common law, ‘‘damages without fraud give no cause of action ; ‘but

. where these two do meet. together, there an action lieth.” Angle

Yv. Chicago, St. P., M. & O. Ry. Co., 151 US. 1, 10 (1894).

19 Note . supra, 268 F. 2d at 846. -Bmphai supplied.)

9 14 . | | hd

this action was without a remedy in. Virginia: = i:

thus rejected the argument for proceeding under 42 —

U.S.C. § 1988 despite the decisions of this Court per-

mitting modification but prohibiting ig aces of

eens law remedies.” ie Pree

+ Finally, it was contended that even if the individual

restaurateur is thought to have the right to pick and.

choose customers on a racial basis, without liability,

the corporation would have no such right. It does not

possess natural rights (of association). or capacities.”

20 ‘There is no such thing as a vested right to do wgong.”’ * Free-

born v. Smith, 2 Wall. (69 U.S.) 160, 175, (1865).;. Randall v.

Kreiger, 23 Wall. (90 U.S.) 137, 149 (1875). This applies with

even more force to, a corporation since it is state-created.. When-

ever there is a breach of an agreement, express or implied, the law

infers some damage irrespective of the amount or actuality of

damage. 15 Am. Jur, Damages, §3 (1938).

2 TaN right of action to recover damages for an injury is’ prop-

' erty.’’?. And the state cannot ‘‘pardon a private wrong or relieve

the wrongdoer from civil ry to the individual he’ has

wronged.’’ Angle v. Chicago, St. P., M. & O. Ry. Co., 151 U.S.

-1, 19 (1894). Where the right of action is statutory, the right

ae changes with the‘statutes. But where ‘‘it springs from contract or

«the principles of common law’’ the right stands upon the footing ©

“of every other lawful contract and cannot be impaired by the state.

Pritchard v. Norton, 106 U.S. 124, 132 (1883) ; Poindezter v. Green-

how, 114 U.S. 270, 300 (1885).

Finally, the act of ‘refusing. the accetumettetion’* may be “justly

regarded * * * as inflicting an ordinary civil injury properly cog-

nizable by the laws of the state, and presumably subject to redress .

by those laws ‘until the contrary appears.’”’ Civil Rights Cases,

109. U.S. 3,24 (1883). Of course, ‘‘the federal remedy is gupple-

mentary to the state remedy, and the latter need not first be.sought

and refused before the federal one is invoke .”? Monroe v. Pape,

365 US. 167, 183. (1961). - =

-22 FLETCHER, PRIVATE Conronamows, gue (1950), (1963. Cum.

Supp.).

, a 15 , |

Thus, the presumption that it does cannot be indulged.

_ because ‘‘no state may endow its corporate creatures

with [such] power. _— Consequently, the respondent

is liable for the j injury to petitioner.”

This contention was disregarded and the aes of |

Rule 15(b) | denied. |

Procedural Matters: ‘

1. The case’ was transferred to the District. Court

below July. 20, 1961, and on February 9, 1962, it was.

set for trial J une 19, 1962. Petitioner instituted dis-*

covery proceedings February, 21, 1962. (R., IT, 78.)

. The order resolving objections was entered June 4,

(R., II, 149) and discovery thereafter completed June

8, 1962.. (R., IT, 162-167.) Petitioner then moved for. -

- summary judgment (Pl. CA App. VI) June 15, 1962,

relying on the inability to complete discovery as rea-

sonable cause for noncompliance with the 10-day notice.

requirement. of Rule 56(c). (Pl. Affidavit, R., II,

207.) But jurisdiction under Rule 56 was refused. ;

‘2. Petitioner &ttahnp ted, in the interest of orderly

procedure, to have the * District Court determine which

facts, hadtbeen admitted under Rule 36 and which had

been denied in good faith. But evasive responses

were allowed. The Court of Appeals held that some .

of them were ‘“‘utterly evasive and frivolous,’’? 323 —

F, 2d at. 105, but declined jurisdiction to determine

28 See aie v. , Abbott, 321 US. 349, 865 (1944).

‘ 2461+. ig the unlawful.use of power * * * which gives rise to the

- jurisdiction of the court to afford relief, not the particular form

such abuse of pow wer takes.”” Dillard v. C. 4 0. ae Co, 199 F. 2d

948, 951 (4th Cir+1952), ;

whether, under Rule 37, petitioner was entitled to re-

cover the costs incurred in proving such matters.”

3. Petitioner attempted to invoke the pretrial and

the summary judgment fact finding function under

Rule 16 and Rule 56(d), respectively,” but without

success. He was likewise unsuccessful in having addi-

tional preliminary findings entered under Rules 41(b)

and 52(a) to insure ‘‘an evaluation based * * * on a

balanced order of facts exactly and fairly stated.’

4. The decision sought to be reviewed contains num-

erous untrue, prejudicial factual statements which are

unsupported by the record. The errors were enumer-

ated for the court below in petitioner’s Motion to

Amend Mandate and supporting affidavit filed Febru-

ary 25, 1965.% (R., IX, 23.)

** The respondent’s objections to discovery, refusal to respond

- to requests for admissions, and partial answers given to interroga-:

tories caused petitioner to incur the costs of annual leave from

Government employment and travel. between Washington, D. C.

and Richmond, Va. for the adjudication of general rather

specific objections. In addition, respondent refused to admit unde

Rule 36, or otherwise stipulate in order to avoid the-necessity of

formal proof, those facts admitted under Rule 33 as well as the

extensive regulation and visitorial rights of the state. _*

26 Harry D. Nius, Pre-Tarat, 140-141 (1950).

’ 1 Rochin v. California, 342 U.S. 165, 172 (1952). " (Emphasis

‘ supplied.)

28 The Motion states its purpose to be: (1) to eliminate inad-

vertent technical inaccuracies and thus establish the absolute verity ©

. Of the factual statement in the opinion; (2) to dispose of pro-

' -eedural due process issues, properly raised by the record, bearing

upon the trial of the matter and the proper allocation and taxation

- of costs; (3) to supplement the decree and secure or maintain uni-

formity or continuity of the Fourth Circuit’s decisions; and (4)

to clarify an apparently confused record and avoid, if possible,

' further review of purely procedural points.””

So ia ae oa. A

The mandate (certified copy of the decision) was

scheduled to go down March 9, 1965. Therefore, a

oe Motion to Stay the Mandate until disposition: of the |

- motion to amend was filed February 26, 1965. Neither

motion was defended despite the charge of fraud in the

procurement of the judgment by effecting transfer of

the action in bad faith from the vee where both

parties. reside or do business. ‘

On March 5, 1965, the Clerk advised that action on

the motions before ‘March 9, appeared unlikely and

suggested that a stay would be granted for the purpose

_ of an application for a writ of certiorari. Hence, such

- a motion was filed March 8, and sits March 9, 1965.

(R., IX, 75, 80.)

Jurisdiction under Rules 60(b) and 75 (h) ¢ to o modify ,

the decree or otherwise clarify the record, ‘‘in the in-

terest of fairness,’ was refused. And on March 18,

1965, petitioner was notified that a perfunctory order

denying the motion to amend had been entered. as of

March 8, 1965. (R., IX, 77.)

[REASONS FOR ALLOWANCE OF THE WRIT

I. A Substantial Departure From Accepted Procedure

Was Sanctioned Below

A substantial constitutional question is provoked by

proceedings in which a litigant is denied the benefit -

qf the Federal Rules of Civil Procedure. [Rules 1, .

15(b),.16, 26, 33, 36, 37, 41(b), 43(a), 52(a),.56(d), .

60(b), 75 (h)] as well as the presumptions and. infer-

ences to which he is lawfully entitled. __

The petitioner sought merely to vindicate federal

rights in accordance with the Federal Rules. And

while there is no evidence that he ever employed im-

proper tactics at any stage in the prosecution of the

Cahill v. N.-Y., N.H. & H. RR. Co., 351 U.S. 183 (1956).

claim his motives were questioned and. conden. of the

litigation unfairly criticized.” (Tr., R., V, 27-33 ; ap-

pendix, p. Ba, infra. )

The substantive issues raised are 2 of particular ‘im-

portance to 20 million nonwhite citizens and residents

who have long -hoped for the final vindication of the -

right of recovery against the impersonal creatures of

the state for injury caused by their’ invidious racial —

restrictions.

' The right ofa litigant to be heard is one of the fun-

~ damental rights of due process. Thus, a denial of the

right calls for a reversal. ‘‘Tested by. the totality of

the facts,”’ the judgments below appear to be so clearly

erroneous and shockingly ‘wrong as to present a sub-

'_ stantial due process question.”

With the high cost of adjudication, ae any

procedure which ‘nullifies the opportunity to fully and

fairly vindicate substantive rights in the federal courts

raises a question of tremendously special import and .

requires exercise by this Court of ’ its supervisory .

power. |

‘When such a misapprehension of tKe law has -

led both courts below to adjudicate rights without

* The general attitude of the courts below raises a ‘serious ques-

tion of whether the individual citizen still has a meaningful right

to invoke the civil rights remedy and be heard ; or whether he must,

in-order to present a respectable claim and avoid the horrendous ©

cost of litigation, submit his case to a civil rights organization.

for prosecution in the event s¢ determines the claim has merit. —

‘31 See Reynolds v. Cockran, 365 U.S. 525 (1961); Speiser v.

Randall, 357 U.S. 513 (1958) ; Wolfle v. United States, 291 U.S. 7

(1934); Funk yv. United States, 290 U.S. 371 (1933); Horey v.

Eliott, 167 U.S. 409 (1897) ; and ste Garner v. Louisiana, 368 U.S.

157, 163 (1961).

considering essential facts in light of the control- -

ling law, this Court will vacate the ju nts and

remand the case to the District Court for further

_ proceedings consistent -with the principles laid

own in Court’s opinion.’

II, The Judgment Below Creates a Conflict in the Circuits

The rejection of the contention that 42 U.S.C. § 1988 _

incorporates state remedies is in direct conflict with

the holdings of other courts incorporating state wrong- -

ful death and survival statutes in. the federal civil

rights remedy.” The issue thus raised is unique, im-

portant, and timely and should be resolved bY. the

Court.

_ IIL The Decision Is in Conflict With the Decistons of This Court

The decision below ‘‘seem[s] to be out of line with °

the authorities’ in the following respects: Full dis-

closure of the facts was not required during discovery ;

examination into corporate intent was not permitted

during the trial; and the benefit of the ‘‘best evidence

rule’’ was denied. (Notes 16, 25, 26, supra.) In addi- .

tion, relief from fraud was withheld (notes'11, 18);

common law redress was held to-have been abrogated

by state decisions (notes 9, 21); and the mandate of

Rule 15(b), Fp. R. Crv. P., was. misconstrued.”

2 Maggio v. Zeitz, 333 U.S. 56; 77 (1948).

"88 Pritchard v. Smith, 289 F. 2d 153 (8th Cir. 1961); Brazier v.

Cherry, 293 F. 2d 401 (5th Cir. 1961).

on *“ Braen v. Pfeifer Ow Transp. Co., 361 US: 129, 130 (1959).

_ 8 Foman v. Davis, 371 U.S. 178 (1962).

IV. The Decision Below Creates Intracircuit Conflict

The court below refused to:follow or apply principles

.-& party to meet the substance’of a-request-for-admis-.

sion under Rule 36;** (2) which apply the ‘‘best evi-

dence’’ or ‘negative evidence’’ rule (note 17); (3)

which enforce the duty of the invitor, to the invitee ;"

and (4) which hold the suppression of relevant facts as.

fraudulent where, by reason of such suppression, a

party (here, the transferor court) was influenced to

act.” This Court has taken jurisdiction to secure uni-

formity of decision within the circuit. i we

V. This Case Presents Extremely Important Issues of

Statutory Construction

The insistence upon clear and convineing proof of

direct state action to sustain recovery under 42 U.S.C.

§§ 1983, 1985(3) constitutes an unwarranted construc-

tion of the civil rights acts by the courts below.” ° This

~ and the remaining issues of statutory construction pre- .

sented by this petition are of extraordinary aad

ance. See note 4, supra.

Thus, an early determination of the questions pre-

7 sented and the-controlling principles in cases arising

*% Southern Ry. Co. v. Crosby, 201 F. 24 878, 880 (1958).

37 See Norfolk Tidewater Terminals v. Wood Towing Corp., 94

. EF: 2d 364, 166 (1938) ; and. — v. Keller, 114 F. 2d 790, 794

(1940). -

= Homelite v. Trywilk Realty Co., 272 F. . 2a 688, 691 (1959).

9 Cf. John Hancock Mutual. Life Ins. Co. v. Bartels, 308 US.

180, 181 (1939); Maggio v. Zeitz, 383 U.S. 56, 59-60 (1948) ;

- Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 508 (1950).

. Cf. Michalic v. Cleveland Tankers, Inc., 364 U.S. 325 (1960).

> meee ee

Arh the Dit vet tlits Inr

eh ah RN rn a hits cans “ “

ns stein hina dates ceili desnindassstbantingnbiinns rovatiimsiwn4

under the civil rights acts where the wrongdoer is a. —

corporation i is highly desirable.

These issues have been awaiting an perspective of

time. And, despite the recent lunch counter ‘‘sit-in”’

“~“adjudications,“ they’ remain unsettled and ‘Tipe for

decision. 3 |

CONCLUSION

For the foregoing reasons, the petitioner prays the

Court to grant the writ.

CR e Gu iv) b:

CB pL. a Nad

Petitioner, Pro se

1329 Shepherd Street, N Ww.

| | Washington, D.‘C.. 20011.

May 3,1965 \. 7 yas ;

, ma 7

—s

aEg, Lombard v. Lékeisina, 373 U.S. 267 (1963) ; Peterson v.

City of Greenville, 373 U.S. 244 (1963) ; Robinson v. Florida, 378

U.S. 153 (1964) ; ‘and the Virginia cases, viz.,. Randolph, Henry, -

- Thompson, and Wood, 374 U.S. 97, 98, 99, 100 (1963), and a

Green and Harris decisions, 378 DU. S. 550, 552 (1964).

“4

la -

APPENDIX .

STATUTES INVOLVED

(Revised Statutes of the United States, 1878; Title 42 of

the U.S. Code, 1958 ed.)

‘Rev. Stat. § 1979, 42 U.S.C. § 1983, provides: -

Every person who, under color of any statute, ordi-

nance, regulation, custom or usage of any State or

Territory, subjects, or causes to be subjected, any citi-

_ gem of the United States or other person within tke ju-

risdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution

and laws, shall :be liable to the party injured in an

action at law, suit in equity, or other proper proceeding

for redress. (Emphasis supplied).

Rev. Stat. § 1980, 42 U.S.C. § 1985(3), provides:

gy f two or more persons in any State or Territory ¢ con-

Res spire or go in disguise on the highway or on the prem-

_ ises of another, for the purpose of depriving, either

. directly or indirectly, any person or class of persons

of the equal. protection of the laws, or of equal privi-

leges and immunities under the laws; or for the purpose

of preventing or hindering the constituted authorities

of any State or Territory from giving or securing to. -

all persons within such State or Territory the equal °

protection of the laws; or if two or more persons con-

spire to prevent by foree, intimidation, or threat, any

citizen who is lawfully entitled to vote, from giving

‘his support or advocacy ina legal manner, toward or in

favor of the election of any lawfully qualified person

. as an elector for President or Vice President, or as a

' Member of Congress of the United States; or to injure

any. citizen-in -person-or property“on-account -of such

support or advocacy; m any case of conspiracy set

forth in this section, “? one or more persons engaged

” 2a

therein do, or cause to be done, any act in furtheramce °

of the object of such conspiracy, ‘whereby another is

injured im his person or property; or deprived of hav-

img and exercising any right or privilege of a citizen,

_ of the United States, the party scNyjured or deprived

may have an action for the recovety of damages, occa-

_sioned ‘by such injury or deprivation, against any one

or more of the conspirators. (Emphasis — )

- Rev. Stat. § 722, 42 US. C. § 1988, provides:

“The jurisdiction in éivil and orl inal matters con-

ferred on the district courts by: the provisions of this

\ chapter ‘and Title 18, for the protection of all persons

‘in the United States i in their civil.rights, and for their -

vindication, shall be exercised and enforced in con-

forniity with the laws of the United" States, so far as

such laws are suitable to carry ,the same into effect;

- but. in all cases where they are not adapted to the

object or are deficient in the provisions necessary to -

‘furnish spitablé ‘remedies and punish offenses against ~

law, the common Taw, as modified and changed by the

constitution: and statutes of the State wherein the

court having jurisdiction « of.such civil or criminal case |

the Constitution and laws of the United States, shall

“be extended to. and govern the said courts.in the trial

and, disposition of the cause, and if it is of a criminal

"nature, in the infliction of punishment on the party.

“The equal osecuninniatlons ‘otelbne. of the Act of March

1, 1875, ¢. 114, 18 Stat. 336, provide:

“{Sec. “a That all persons within the jurisdiction

f the United States. shall be entitled to the full

«and equal enjoyment of the accommodations, advan- -

‘tages, fagilities, and privileges of i imns, public convey- .

- ances on land or water,. theatres, and other —

“~

¢ g °

° 3a .

public ci subject gnly to the conditions and —

limitations established by law, and applicable alike to

' cttizens of every race and color, regardless of any

‘Previous condition of servitude.

Sec. 2. That any person who shall sbiohe the tae.

going section by denying. to amy citizen, except for

reasons by law applicable to citizens of every race and

color, and regardless of any previous condition of servi-

tude, the full enjoyment of any of the accommodations,

advantages, facilities, or privileges in said* section

enumerated, or by aiding or inciting such denial, shall,

fot every such offense, forfeit and pay the sum of five

‘hundred dollars to the person aggrieved théreby, to be

recovered in.an action of debt, with full costs; and shall .

also, for every such offense, be deemed guilty of a —

misdemeanor, and, upon conviction thereof, shall be

fined not less than five hundred nor more than one

- thousand dollars, or shall be imprisoned not less -than

thirty days nor more than oné year: Provided, That

all persons may elect to:sue for the penalty aforesaid

-~or, to proceéd under their rights at common law and by

State statutes; and having so eleeted to proceed in one

mode or the other, their right to > in the other

jurisdiction shall be barred. But this proviso shall not

apply to criminal proceedings, either under this act or

the criminal law of any State: And provided further,

aggrieved, or a.judgment upon an indictment, shall be

a bar. to either prosecution aren: (Emphasis

supplied.) ©

«?

UNITED STATES COURT OF APPEALS

’ FOR THE FOURTH CIRCUIT

No. 9607.

_ CHARLES E. Wis, Petitioner,

ea |

- Honoraste Oren R. Lewis, United States District Judge

e ’ or

Ox Perrrion ror Writ or MaNpAMUs oR Writ IN THE

1 Nature or ManpaMus anp OTHER. RELIEF

Ne. 9644.

Cuartes E. WiLiiaMs, Appellant,

: .

Howarp Jounson’s Inc. or Wasurxaron, Appellee.

Per Curtin: :

These not unrelated appeals were heard at the same time

and will be here considered and dealt. with together.

No. 9644. ,

Charles E. Williams (plaintiff) brought this action to

recover ‘damages because he, a Negro, was allegedly dis-

criminatorily refused service in defendant’s restaurant in

Alexandria, Virginia. The original complaint in the instant

case was filed November 4, 1960, in the United States

' Court for the District of Columbia and, on defendant’s

motion, was stricken in its entirety. Pursuant to leave

. granted, the plaintiff then filed his first amended complaint.

By order, the case was transferred to the United States .

District Court for the Eastern District of Virginia. -

After extensive pretrial discovery by both parties, piain-

tiff filed a second amended complaint which was dismissed

and, upon appeal, the dismissal was affirmed.’ Plaintiff

then filed a third amended complaint, the case came on for

hearing on June 19, 1962, and the complaint was dismissed.”

On appeal it appeared to this court that there had been a —

good faith misunderstanding of the parties as to the scope .

of the hearing before the District Court, and the judgment

below was neither affirmed nor reversed but vacated and

remanded for the purpose of a a full hearing on the

.merits after proper notice.®

In remanding, this court, in an opinion by Chief J udge

Sobeloff, said:

‘*Trrespective, however, of the ‘sill ite

the central question which the District Court decided,

and which is the heart of this appeal, remains the same

_—whether the plaintiff has established that the refusal

to serve him constituted ‘state action’ and not merely

private conduct. ?? (323 F. 2d at 105.)

1The subject matter involved herein was first heard and decided

unfavorably to the plaintiff on January 7, 1959, by the District .

Court for the Eastern District of Virginia, before which an action

was then pending. On appeal to this court that decision was

affirmed, Williams v. Howard Johnson’s Restaurant, 268 F. 2d

' 845 (4 Cir: 1959). The present action between thé same parties,

involving the same subject matter with slight variations, was in-

stituted on November 4, 1960, in the District of Columbia.

2 Williams v. Howard Johnson’s, Inc., of ws 210 F.

Supp. 295 (Cir. 1963). :

- 8 Williams v. Howard Johnson’s, a of Washington, 323 F. 2d

.102 (4 Cir. 1963).

The opinion alludes to the evidence offered by the plaintiff -

. and states the conclusion that such evidence is not clear

enough, without a further showing, to compel the inference

[‘‘state action’’] urged by the plaintiff. Clearly, in unam-

biguous language, the opinion directs:

sc# * * Tf the plaintiff has any ‘ebitiinnal evidence to.

offer bearing on the prosecutor’s statements or activi-

ties, or ‘if he has additional proof of a state action

pertinent to the subject matter, he should be allowed to

present it and the defendant. should have an opportu-

nity to meet it.’? ? (323 F. 2d at 107.) 2

, Compliantly the District Court held a hearing on April

1, 1964, and, in a memorandum opinion. filed on August 6,

1964, stated: ?

=e 2° ae depositions, exhibits, interrogatories and

admissions taken during the previous hearings, to-

gether with. such ‘additional depositions, interroga-

tories and admissions tendered by either party, were

made a part of the record in this case. In addition the

- plaintiff called three witnésses—the Commonwealth’s

. Attorney of Alexandria,. Virginia, the Vice President

of the defendant corporation, and the Executive Secre-

tary of the Virginia Restaurant Association—and testi-

fied extensively himself. .

‘Upon careful review of the record thus made, the

Court again finds the ‘denial of service was a voluntary

act upon the part of the manager of the restaurant’—

there was no state involvement in the conduct: com-

plained of, and the suit will be. diemissed at the cost of

the plaintiff.’’ %

Judgment of dismissal was entered and this adeel followed.

_ It would serve no useful purpose to restate the theories

_ advanced by the plaintiff in the course of this litigation, |

the law, statutes and arguments upon which he has relied

: 2 7a

- to support his asserted cause of action. The position of this

* court and its determination of the legal principles here

applicable clearly appear in prior decisions ‘cited in foot-

notes 1. and 3 to which reference is again made. We have

examined the record before the court below and we are.in ~

full accord with the finding and conclusion that there was

_ no state involvement in the defendant’s conduct of which

- the plaintiff complains. | The action was properly dismissed

and the judgment below will be affirmed.

, Affirmed.

No. 9607.

‘Plaintiff, Williams, bine filed a Petition for Writ of

Mandamus or Writ in the Nature of Mandamus and Other

Relief. The matters now presented thereby grow out of

The last hearing before - the District Court in No. 9644 :

was held on April 1, 1964, but without waiting for a de-

cision the plaintiff, under date of June 11, 1964, moved the

court for leave to file another amended ¢omplaint upon

what the District Court concluded: were substantially the

same grounds as the grounds asserted in previous com-

plaints. The defendant appeared by counsel and interposed

strenuous objections to further amendment, contending that

all litigation, including the action for damages, must, at

some point, be terminated. :

The lower court filed a supplemental opinign in No. 9644,

denying leave for further amendment, and said:

_«*-* * This suit has three times been trie this

Court. : It has twice been reviewed by the United States

Court of Appeals for the Fourth Circuit and will prob-

ably -be reviewed by that Court the third time. The

. Same subject matter has been raised in a companion

case in the District of Columbia and there remanded

by the United States Court of Appeals for the District

of Columbia for interpretation of the meaning and ap- .

- plication of the Virginia Code by the Virginia courts.’’

‘The District Court determined that, under thé recited cir-

‘cumstances, the plaintiff’s conduct in attempting further

amendment was an abuse of the court’s processes and called

for the visitation of sanctions upon the plaintiff who is,

himself, an attorney. The court referred to our decision in

Gullo v. Hirst, 332 F. 2d 178 (4 Cir. 1964), and certain

statements therein, ordered the plaintiff to pay to the clerk,

within seven days, the sum of $100.00 and directed that

counsel fees of $100.00 be taxed ‘against plaintiff for de-__ -

fendant’*s counsel as a part of the costs assessed against

plaintiff.

Here, plaintiff contends that the evidence before the court

would support an alternative theory of recovery based upon »

the-common law and irrespective of the statutes upon which

he had theretofore relied as the basis of his claim for dam-

ages and civil penalty; that, in asking leave to amend, after

15(b), F. R. Civ. P., to amend: the pleadings to conform

to the evidence. —

In this context we think the neiiee to amend was. prop-

erly denied.* However, although plaintiff’s conduct of this

litigation was such as to sorely try the patience of any court,

plaintiff advances @ reason for proceeding as he did. <Actu-

ally, he took no arbitrary action over which the court had

no control but merely sought the court’s leave to amend.

*Under Virginia law, a restaurant owner is not an innkeeper

charged with a common law duty to serve everyone who applies.

He may accept some customers and reject others on ‘purely per-

sonal grounds. Alpaugh v. Wolverton, 184'Va. 943, 36 S. E. 2d

906, cited and discussed by this court in Williams v. Howard

Johnson’s Restaurant, 268 F. 2d 846 (4 Cir. 1962), and Williams

v. Howard Johnson’s Inc. of Washington, 323 F. 2d 102 (4 Cir.

1963). Plaintiff’s asserted cause of action arose years before the

1964 enactment by Congress of laws materially affecting civil rights.’

~ We think any doubt as to the plaintiff’s sincerity and good |

faith in this respect should: be resolved in his -favor.

‘Therefore, after some deliheration and careful consider-

ation, we conclude that the portion of the District Court’s

order of August 6, 1964, imposing sanctions and directing

the taxing of an attorney fee as a part of the costs to be —

paid by plaintiff should be vacated and set aside. It will

be-so ordered. ae ele

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