Brief for the Respondent in Opposition — Pfeifer v. Bell & Howell Co.

FILLED

apR 4 1974

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4 No. 73-6370 a

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Supreme Court of the Gnited States

: OcrToser Term, 1973

; BEN F. PFEIFER, et al,

4 Petitioner,

vs.

q BELL & HOWELL COMPANY, et al,

5 Respondent.

; BRIEF FOR THE RESPONDENT IN OPPOSITION

:

=? a

;

Frank M. Covey, Jr.

P 111 West Monroe Street

’ Chicago, Illinois 60603

: Attorney for Respondent

4 Of Counsel:

3 McDermott, Witt & Emery

111 West Monroe Street

; Chicago, Illinois 60603

The Scheffer Press, Inc—(312) 263-6850

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INDEX

PAGE

Statute and Rule Emvolved q.................cc.c.cc-ceccseesnses 1

UN A I car as veccensnianesonncion 2

I ida ee tera talbaanlnchideiacacice 5

a ceeeeuinan 6

CITATIONS

CRE ek A a 1,5

Tn a cespeneiemueseane 2

I a addlamcinenas 5

Rules of the Supreme Court of the United States,

RRS A EERO RE 12,5

Brotherhood of Locomotive Firemen & Enginemen v.

Bangor & A.R. Co., 389 U.S. 327 (1967)

General Investment Co. v. Lake Shore and Michigan

Railway Co., 260 U.S. 261 (1922) 4

Kinney v. Plymouth Rock Squab Company, 236 U.S.

II ica ipl ace edal ictal csitatstsihssieohsuarsnntonsciseiaiotnenoones 5)

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IN THE

SUPREME COURT OF THE UNITED STATES

Ocroser TERM, 1973

No. 73-6370

BEN F. PFEIFER, et al,

Petitioner,

vs.

BELL & HOWELL COMPANY, et al,

Respondent.

BRIEF FUR THE RESPONDENT IN OPPOSITION

STATUTF AND RULE INVOLVED

28 United States Code §1254:

“Cases in the courts of appeals may be reviewed by

the Supreme Court by the following meihods:

(1) By writ of certiorari granted upon the petition

of any party to any civil or criminal case, before or

after rendition of judgment or decree;

* = Sd ”

Rules of the Supreme Court of the United States:

“Rule 20. Certiorari to a Court of Appeals Before

Judgment.

sy ee

A writ of certiorari to review a case pending in a

court of appeals, before judgment is given in such

court. will be granted only upon a showing that the

ease is of such imperative public importance as to

justify the deviation from normal appellate processes

and to require immediate settlement in this court.”

Nature of This Case

On February 1, 1973, Ben F. Pfeifer, et al, (“Pfeifer”)

filed suit — pro se and in forma pauperis in the Circuit

Court of Cook County, Illinois, alleging, among other

things, violations by defendant Bell & Howell Company

(“Bell & Howell”) of “numerous sections of U. S. Code

Titles, 15, 18 and 41, together with violations of U. S.

Constitutional Amdt’s. 1. 5, 13 and 14.° (The original

complaint does not appear to be included in the petition

for writ of certiorari).

On March 6, 1973 (within thirty days of service of the

complaint on it), Bell & Howell petitioned for removal

of the action to the United States District Court fer the

Northern District of Illinois, Eastern Division, on the

basis of the federal questions involved. 28 U.S.C. $1441

(b). (p. 3438, Petition). The case was removed to the Dis-

trict Court under docket number 73 C 580.

On March 23, 1973, pursuant to the teachings of Gen-

eral Investment Co. v. Lake Shore and Michigan Ratlway

Co., 260 U.S. 261 (1922), Bell & Howell moved to strike

all portions of the complaint making reference to or

relying on the federal antitrust laws and dismissing such

claims without prejudice. (p. 350, Petition). This motion

was subsequently granted on August 27, 1973 (p. 375,

Petition).

‘ o— ~— “ mee ee

Y

§

9

—_—)

In the interim, Pfeifer:

(1) Filed an appeal to the 7th Cireuit Court of Ap-

peals, apparently from the removal of the case to the

District Court and the District Court Judge’s order requir-

ing him to file an amended complaint and to respond to

the motion to dismiss within twenty days. (p. 353, Peti-

tion). This appeal was dismissed, on Bell & Howell’s mo-

tion, by the Court of Appeals on June 11, 1973 on the

grounds that the order appealed from was not a final

and appealable order (p. 367, Petition).

(2) Attempted to file an amended complaint in the

Cireuit Court of Cook County, Illinois, where the original

complaint had been filed (p. 361, Petition). The Circuit

Court of Cook County denied that motion on May 30,

1973, “for lack of jurisdiction because of removal to the

federal district court.” (p. 365, Petition).

(3) Attempted to appeal the Circuit Court of Cook

County’s May 30, 1973 order to the Illinois Supreme

Court (which forwarded it to the Illinois Appellate Court

because it lacked jurisdiction over the appeal (p. 370,

Petition). The Illinois Appellate Court dismissed the ap-

peal on Bell & Howell’s motion for “lack of an appealable

order.” (p. 393, Petition).

On September 14, 1973, Bell & Howell filed a motion

in the District Court to strike the complaint and dismiss

the action for violations of Rules 8(a) and 8(e), F.R.C.P..

statute of limitations, failure to state a cause of action,

and lack of standing. (p. 378, Petition).

On September 14, 1973, Pfeifer moved to remand the

case to the Circuit Court of Cook County (p. 381, Peti-

tion). The motion to remand was denied by the District

Court. (p. 391, Petition).

‘

— i

On Oetober 29. IST. the District Court struck Pfeifer’s

complaint and dismissed the action without prejudice and

without costs, (p. 384. Pention). grounding its opinion

on Rule Sa).

(m September 24. 19TS. Pfeifer filed a notice of appeal

of the District Judge's Getober 29, 1973 order [sice!] with

the Tta Cireuit Court of Appeals (page following 399,

Petition). (The notwe of appeal does not appear to be

incituded in the petition for writ of certiorari).

On November 19. 1873. the Court of Appeals denied

Pfeifer’s motion for leave to proceed in forma pauperis

(p. 398, Petition).

On November 26. 18TX. Pfeifer moved the District Court

to vaeate its Ovtober 28. 1973 order of dismissal. That

motion was denied. .p. S89, Petition).

-—-»

On November St) ITS. Pfeifer moved the Cireuit Court

of Cook County te vacate its order of May 30, 1973 (p.

400. Petition). That motion was denied on the basis of

lack of jurisdietien. pp 44-405, Petition).

On February 15. 1974. portions of the original petition

for writ of certiorar: were fled with the Clerk of the

Supreme Court. amd the petition was ultimately docketed

on March 7. 1974

There have beem no farther proceedings in the Court

of Appeals subsequent to its denial of Pfeifer’s motion

for leave to proeeed in forma pauperis.

Argument

What orders Pfeifer is actually now seeking to review,

as well as the basis for such review, are not clear.

If review is sought from the Court of Appeals’ order

denying leave to proceed in forma pauperis, it is clear

that permission to appeal in forma pauperis is properly

denied where, as here, the applicant's claims are patently

frivolous. See 28 U.S.C. §1915. As the record and the

Petition itself reveal, the Court of Appeals did not abuse

its discretion in this instance. Kinney v. Plymouth Rock

Squab Company, 236 U.S. 43 (1915).

If review is sought from the District Court's order

on the merits, all of these questions should first be

litigated in the Court of Appeals where Pfeifer has not

bothered to pursue his appeal. While under 28 U.S.C.

$1254, this Court could grant a writ of certiorari at this

time, none of the factors which would motivate it to ex-

ercise such extraordinary discretion are present. See

Supreme Court Rule 20; Brotherhood of Locomotive

Firemen & Enginemen v. Bangor & A.R. Co., 389 US.

327 (1967).

Finally, the dismissal was without prejudice, and thus

did not constitute an adjudication of Pfeifer’s rights, if

any, concerning the matters alleged in the complaint.

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meats

Conclusion

It is therefore respectfully submitted the petition for

writ of certiorari should be denied.

Frank M. Covey, Jr.

111 West Monroe Street

Chicago, Illinois 60603

Attorney for Respondent

Of Counsel:

McDermott, Witt & Emery

111 West Monroe Street

Chicago, Illinois 60603

312-372-2000