# Petition for Writ of Certiorari — Williams v. Howard Johnson's, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_0619%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1965 - **Citation:** 382 U.S. 814 ## Text | aus _ ee cae | Otfice-Supreme Court, U.S. Lwsrday T:). . ve: A & Ye m ; IN THE’ | Supreme Court nf the United States | OotonER ‘TERM, 1964 oe: % co RS yo o j . . : ‘ Dida Repeat a Mesa SSAA WEEE ashe, BS nites a0 UM sl ese ANI tl cea ie bs dal . > Res — ‘. CHartes E. WiLu1aMs, ‘Petitioner, ae | . ae -Howarp J OHNSON’ ’s, ING. OF WASHINGTON, | 3 Respondent. Se a i 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~§— 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 ‘sy - . ws \ a, \ \ ; | e | Page 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 { > pe pe Sant th Ri : “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 a 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. | ¢. i j } 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.). ° ! } ¥, ex PF a RM tae Sao a LN Ate us 4 Sada Bove . - ? > — ° . Ne Ch t Reh Pe nee ell Arce een me ot RE eee Epes 2 ab edu Nasheed . \ / 2 ig ef €: so ° ‘4 _ 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). 5 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). eo ; _- 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.) i) Pa 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.). ° ce , 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 a* Ae 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), ; 16 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 2 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). 18 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). 19 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). wr a , %, 20 IV. The Decision Below Creates Intracircuit Conflict The court below refused to:follow or apply principles of prior holdings, to-wit, decisions: (1) which require © .-& 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 a1 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 yi 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 qo ~~ ” 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 | ©. is,held, so far as the same “bs..not inconsistent with _ 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. " found guilty. © “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, That a judgment for the penalty in favor of the party © aggrieved, or a.judgment upon an indictment, shall be a bar. to either prosecution aren: (Emphasis supplied.) © a «? 4a 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 us 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 5a 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.) o 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). 6a 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. . y ‘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.’’ % Nn 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 certain procedures in No. 9644. ©. 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 = 8a 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 hearing, he was attempting to proceed according to Rule © 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.