Petition for Writ of Certiorari — Jobe v. ATR Marketing, Inc.

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oe 98 205 4 JUN 22199

In The

Supreme Court of the United States

TONY JOBE,

Assignee of AIR NEW ORLEANS, INC.,

and PLAINTIFF’S-APPELLANT’S COUNSEL,

Petitioners,

ATR MARKETING, INC., AVIONS DE TRANSPORT

REGIONAL (G.I1.E.); AEROSPATIALE, S.N.I.;

FINMECCANICA S.P.A., Individually and d/b/a

ALENIA (a division of Finmeccanica) a/k/a

AERITALIA S.p.A. and the Successor in the Interest

of Aeritalia; AEROSPATIALE, INC.; and

DEFENDANTS A through M,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

Wayne E. Ferre t, Jr.

Attorney at Law

Counsel of Record

Post Office Box 24448

Jackson, Mississippi 39225-4448

(601) 969-4700

Terry O’Retty, Esa.

O’Renty & CoL.ins

A PROFESSIONAL CORPORATION

2500 Sand Hill Road, Suite 201

Menlo Park, California 94025

(650) 854-7700

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

_ fs ri

oo nomena

a mn erent

QUESTIONS PRESENTED

1. Whether the lack of procedure on the part of the

Fifth Circuit Court of Appeals in granting or denying

Motions for Extensions resulted in the denial of due

process to Petitioners?

2. Whether the Fifth Circuit’s refusal to grant oral

argument regarding an appeal concerning the award of

sanctions by the District Court, or to explain its reasons

for denying a request for oral argument, resulted in a

denial of due process to the Petitioners?

3. Whether the Fifth Circuit neglected when it

failed, in its Appellate role, to apply the appropriate

standard of review and law when affirming the District

Judge’s imposition of sanctions. pursuant to 28 U.S.C.

§ 1927?

CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record certifies that the fol-

lowing listed persons have an interest in the outcome of

this case. These representations are made in order that

the Judges of this Court may evaluate possible disqual-

ification or recusal.

10.

,¢ F

Tony B. Jobe, Appellant

ATR Marketing, Inc., Appellee

Aerospatiale, Inc., Appellee

Aerospatiale, S.N.L., Appellee

Finmeccanica, S.r.A., individually and d/b/a

ALENIA (a division of Finmeccanica) a/k/a

AERITALIA S.r.A. and the Successor in the

Interest of Aeritalia, Appellee

Avions de Transport Regionale (G.LE.), Appellee

Wayne E. Ferrell, Jr., Attorney at Law, counsel

for Appellant

Hubbard & Pierce, PLLC, Attorneys at Law,

counsel for Appellant

O'Reilly & Collins, Attorneys at Law, counsel for

Appellant

Orvis A. Shiyou, Jr., Attorney at Law, counsel

for Appellant

Fleming, Hovenkamp & Grayson, Attorneys at

Law, counsel for Appellant

ill

CERTIFICATE OF INTERESTED PERSONS - Continued

12.

14.

Erik M. Lowrey, Attorney at Law, counsel for

Appellees

Hogan & Hartson, Attorneys at Law, counsel for

Appellees

The Honorable Charles Pickering, District Judge

TABLE OF CONTENTS

Page

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Certificate of Interested Persons..............05+0e08: ii

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Rules Involved .......... iecuaeweak veer stan pee eeeedes 2

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Reasons for Granting the Writ ...............eeeee eee 5

I. The Court Of Appeals For The Fifth Circuit Has

A Lack of Procedures For Timely Ruling On

Motions, Such As A Motion For Extension Of

Time, Which Effectively Denied Petitioners Due

PORROOR sv nu Gib v ie 064003 (eh vinddeeerieeeventes 5

A. *Due To The Fifth Circuit’s Lack of Pro-

cedure, This Court Should Hear This Case

And Impose Upon The Justices of That

Court A Duty To Devise And Enforce

Proper Proceauses .. 2.5 ccceccccsiccivecess 8

Il. The Petitioners Were Denied Due Process By

The Refusal Of The United States Court Of

Appeals For The Fifth Circuit To Hear Oral

Argument Or Provide Its Reasons As To Why It

Refused To Hear Oral Argument.............. 10

Ill. Fifth Circuit Failed To Appropriately Apply The

—— o Standard Of Review Resulting In An

Inability To Reconcile Its Ruling In The Case At

ee a i cuwueae ens 12

A. The Standard Of Review.................. 12

TABLE OF CONTENTS - Continued

Page

B. The District Court’s Decision To Impose

Sanctions Was Based Upon A Clearly Erro-

neous Assessment Of The Evidence.......

(1) The Fifth Circuit Failed In Its Error

Correcting Role When It Affirmed The

District Court’s Finding That The Peti-

tioners Unreasonably And Vexatiously

Multiplied The Proceedings By Submit-

ting Petitioners’ Particularized State-

ment of Subject Matter Discovery.....

(2) The Fifth Circuit Failed In Its Error Cor-

recting Role When It Affirmed The Dis-

trict Court’s Finding That Petitioners

Unreasonably And Vexatiously Multiplied

The Proceedings By Issuing Thirteen (13)

Subpoenas Duces Tecum...............

(3) The Fifth Circuit Failed In Its Error

Correcting Role When It Approved The

District Court’s Finding That Peti-

tioners Unreasonably And Vexatiously

Multiplied The Proceedings By Giving

Fifty (50) Requests for Production ....

(4) The Fifth Circuit Failed In Its Error

Correcting Role When It Affirmed The

District Court’s Finding That Peti-

tioners Unreasonably And Vexatiously

Multiplied The Proceedings By Filing A

NE OP TINT 5 ois. 5 vncde oe8 cies es

C. The Fifth Circuit Failed To Correct The Dis-

trict Court’s Abuse Of Discretion By Affirm-

ing The Imposition Of Sanctions Pursuant

to U.S.C. § 1927

ar I oi Fe ie, rr ie ent mee

TABLE OF AUTHORITIES

_ Page

Cases

Armstrong v. Manze, 380 U.S. 545, 85 S.Ct. 1187,

14 L.BG.2 GZ. (IGGSD i ke ec cteestcedenelecucesves 11

Beatrice Foods Company v. New England Printing

and Lithographing Company, 899 F.2d 1171 (Sth

Cle, BOGE) iv ctrccccheosssesaviecsoneavns cannes 12, 29

Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780,

26 L.Bd.2d: TUS CIG71). «0 oo ssccnesievatwcdcesececss 11

Cooter and Gell v. Hartmarx Corp., 496 U.S. 384,

110 S.Ct. 2447, 110 L.Ed.2d 359 (1990) ............ 12

Dryling v. Peugeot Motors of America, Inc., 768

F.2d 1159: (30th Cle, 1908)... cewc sieeve ewowervetns 28

Eastmark Apparel, Inc. v. James, 10 F.3d 1156 (Sth

Cie; BOGE inn dc csuc ces vewecaet dus seeeentnsetiaes 12

Kiefel v. Las Vegas Hacienda, Inc., 404 F.2d 1163

(7th Cle: 10GB. yi dvceieersissrmas tie ees 28

Matthew v. Eldridge, 424 U.S. 319, 98 S.Ct. 893,

@O7 L.BG.2G 16 (ESTE). 0 ons cv vee snesestiseccereess 11

Roadway Express v. Piper, 447 U.S. 752, 100 S.Ct.

2458, _. L.EG.20 .. (ISGD) «cain case pees cvescseers 11

Travelers Insurance Co. v. St. Jude Hospital of

Kenner, 38 F.3d 114 (5th Cir. 1994)............. 11, 12

White v. American Airlines, Inc., 915 F.2d 1414

(10th Cis. 1990)... ovo scucsscexebacuneuseeuausdea0 28

Wilkinson v. Mercantile National Bank of Dallas,

529 So.2d 616 (Miss. 1988).............eeeeeees 22,23

’ Ce i, ee ee) ae

vil

TABLE OF AUTHORITIES - Continued

Page

Williams v. Giant Eagle Markets, Inc., 833 F.2d

Rr rs Ferrer 29

Zuk v. Eastern Pennsylvania Psychiatric Institute

of The Medical College of Pennsylvania, 103

eB Ff rrr rrr ree 12, 29

STATUTES AND OTHER ApPLICABLE RULES

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Federal Rule of Appellate Procedure 26............ 2, 8

Federal Rule of Appellate Procedure 34........... 3, 10

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PETITION FOR WRIT OF CERTIORARI

Petitioners, Tony Jobe, Assignee of Air New Orleans,

Inc., and Plaintiff’s-Appellants’ counsel, respectfully pray

that a Writ of Certiorari be issued to review the Judgment

and Opinion of the United States Court of Appeals for the

Fifth Circuit, which was affirmed by the denial of the

Petitioners’ Petition for Rehearing on March 24, 1999.

OPINIONS

The Opinion of the Court of Appeals, while not

reported, is reprinted in the Appendix hereto, page A-1,

infra. The Memorandum Opinion and Order of the United

States District Court for the Southern District of Missis-

sippi (C. Pickering, J.), dated August 28, 1996, is not

reported, but is reprinted in the Appendix hereto, page

B-1, infra.

JURISDICTION

Invoking federal jurisdiction pursuant to 28 U.S.C.

§ 1332, the Petitioners filed suit in the Southern District of

Mississippi. After the completion of discovery and brief-

ing, the district court entered an order dismissing the

action based upon a lack of in personam jurisdiction. That

decision was appealed by the Petitioners to the United

States District Court of Appeals for the Fifth Circuit who

affirmed the district court’s judgment on July 11, 1996.

On May 24, 1995, Respondents filed their Motion for

Sanctions against the Petitioners. The District Court

entered a Memorandum Opinion and Order, without giv-

ing the Petitioners a hearing with an opportunity to give

evidence and without granting Petitioners an opportunity

for oral argument, on August 28, 1996, finding that only

Petitioners’ counsel had unreasonably and vexatiously

multiplied the proceeding. Petitioners filed an appeal

with the United States Court of Appeals for the Fifth

Circuit who affirmed the District Court’s Memorandum

Opinion and Order on February 19, 1999. Petitioners then

timely filed their Petition for Rehearing which was subse-

quently denied March 24, 1999. (Appendix, page C-1).

The jurisdiction of this Court to review the judgment

of the Fifth Circuit dated February 19, 1999, is invoked

under 28 U.S.C. § 1254(1).

RULES INVOLVED

Federal Rule of Appellate Procedure 26, Computating and

Extending Time.

The full text of the rule is reprinted in the

Appendix, page D-1, infra.

Fifth Circuit Local Rule 26.

The Full text of the rule is reprinted in the

Appendix, page D-2, infra.

Federal Rule of Appellate Procedure 31, Filing and

Service of A Brief.

The Full text of the rule is reprinted in the

Appendix, page D-4, infra.

Fifth Circuit Local Rule 31.

The Full text of the rule is reprinted in the

Appendix, page D-4, infra.

Federal Rule of Appellate Procedure 34, Oral Argu-

ment.

The full text of this rule is reprinted in the

Appendix, page E-1, infra.

Fifth Circuit Local Rule 34, Oral Argument.

The full text of this rule is reprinted in the

Appendix, page E-3, infra.

STATEMENT OF THE €ASE

Tony jobe, Assignee of Air New Orleans, Inc., filed

his Complaint on January 12, 1994. Representing Peti-

tioner was T. Roe Frazier, II, of the law firm of Langston,

Frazier and Sweet. Jobe later employed the firm of

O’Reilly & Collins of Menlo Park, California, who associ-

ated Wayne E. Ferrell, Jr., of the firm of Ferrell & Hub-

bard.!

Jobe’s counsel filed an Amended Complaint on Octo-

ber 7, 1994, alleging that one of the Plaintiff's principal

place of business was in Gulfport, Mississippi, and that

the United States District Court for the Southern District

of Mississippi, Hattiesburg Division, had jurisdiction of

this case due to a tort being committed in whole or in

part in the State of Mississippi. On September 27, 1994,

the district court granted Plaintiff an Order to amend his

' Ferrell & Hubbard, Attorneys at Law, dissolved effective

June 1, 1995. Wayne E. Ferrell, Jr. is currently a sole practitioner

and his former partners have established a separate firm of

Hubbard & Pierce, which became Hubbard, Pierce & Baria of

Jackson, Mississippi. The firm of Hubbard, Pierce & Baria has

now dissolved.

Complaint and pursue limited discovery regarding the

issue of personal jurisdiction. The parties engaged in

limited discovery which was agreed to by the parties

regarding whether Respondents were subject to in per-

sonam jurisdiction in the State of Mississippi pursuant to

the Mississippi Long Arm Statute and in accordance with

due process of law. Through discovery, Jobe sought,

among other things, evidence to contradict the Declara-

tions Under Penalty of Perjury submitted by representa-

tives of the Defendants in support of their Motion to

Dismiss. As a result of the discovery filed, Petitioner

discovered several instances where the declarations and

discovery responses submitted by at least one of the

Respondents were false. Regardless, the District Court

granted the Motion to Dismiss for lack of in personam

jurisdiction. Respectively they then filed their Motion for

Sanctions for relief pursuant to 28 U.S.C. § 1927. On

August 28, 1996, by and through its Memorandum Opin-

ion and Order, the District Court granted Respondents’

Motion for Sanctions pursuant to 28 U.S.C. § 1927 for

unreasonably and vexatiously multiplying the proceed-

ings. Petitioners appealed the Memorandum Opinion and

Order of the District Court of the United States Court of

Appeals for the Fifth Circuit. The Court of Appeals for

the Fifth Circuit affirmed, without hearing oral argument,

basing its decision upon the rationale that the District

Court judge was in a better position to determine the

imposition of sanctions. (Appendix, page A-4).

REASONS FOR GRANTING THE WRIT

I. THE COURT OF APPEALS FOR THE FIFTH CIR-

CUIT HAS A LACK OF PROCEDURES FOR

TIMELY RULING ON MOTIONS, SUCH AS A

MOTION FOR EXTENSION OF TIME, WHICH

EFFECTIVELY DENIED PETITIONERS DUE PRO-

CESS.

Federal Rules of Appellate Procedure 26(b) provides

in part:

(a) (Enlargement of Time). The Court for good

cause shown may upon motion enlarge the time

prescribed by these rules or by its Order for

doing any act, or may permit an act to be done

after the expiration of such time; but the Court

may not enlarge the time for filing of a Notice of

Appeal, a Petition for Allowance, or Petition for

Permission to Appeal. Nor may the Court

enlarge the time prescribed by law for filing a

Petition to Enjoin, Set Aside, Suspend, Modify,

Enforce, or Otherwise Review, or a Notice of

Appeal from, an Order of the Administrative

Agency, Board, Commission or Officer of the

United States, except as specifically authorized

by law.

Fed.R.App.P. 26(b) (See Appendix, page D-1, infra). Sim-

ilarly, Local Rule 26 provides, in part:

26.2 Extensions of Time. The Court’s policy

requires the timely filing of all papers within the

period of time allowed by the rules, without

granting extensions of time, except for good

cause shown. Failure to process appeals timely

will cause the dismissal for want of prosecution,

without further notice, under the provision of

Fifth Circuit Rule 42. If the right to file a reply

brief is waived, the parties or counsel should

immediately notify the Court to expedite sub-

mission of the case to the Court.

Fifth Circuit Loc.R. 26. (Appendix, page D-3).

On July 1, 1998, Petitioners filed their Motion to

Suspend Briefing Schedule Or, In the Alternative, Motion

for Additional Time to File Appellants’ Brief. As the

Court had not yet ruled on the motion, and to prevent a

violation scheduling deadline, Petitioners filed an incom-

plete Appellants’ Brief on July 6, 1998. On July 8, 1998,

Petitioners received, via United States mail, the Fifth

Circuit Order granting an extension of time in which to

file Appellants’ Brief. (Appendix, page F-1). As a result,

Petitioners contacted the Clerk of the Court of Appeals

for the Fifth Circuit and requested that Appellants’ Brief

be withdrawn in light of the Court’s Order granting an

extension. The Clerk refused to withdraw Appellants’

Brief, but requested that Petitioners file a motion to with-

draw the brief and to substitute the brief. On August 3,

1998, Petitioners’ Motion to Withdraw and File Substitu-

tion Brief was denied, without reason, and the Clerk of

the Fifth Circuit returned the original and all copies of

Appellants and Appellants’ Counsel’s Substitution Brief

unfiled. (Appendix, page G-1).

Confusingly, the Fifth Circuit’s Order, filed August 3,

1998, left in place the extension of time granted by Order

dated July 7, 1998, to submit Appellant and Appellants’

Counsel’s Brief. (Appendix, page G-1). On August 16,

1998, Petitioners also filed their Motion requesting a ten

(10) day extension of time from the date of the Court’s

ruling in which to file Appellants’ Rebuttal Brief which

set forth the reasons for the extension therein.

Due to the confusing language of the Court’s August

3rd Order, Petitioners also filed their Motion to Clarify

Order, Motion for Reconsideration and/or to File Cor-

rected Brief. The Fifth Circuit denied all of Petitioners’

Motions except that requesting an extension to file Rebut-

tal Brief. On September 16, 1998, the Fifth Circuit issued a

confusing Order which granted Petitioners an extension

up to September 9, 1998, to file Appellants’ Rebuttal

Brief. (Appendix, page H-2). A copy of the Court’s Order

was mailed to Petitioners’ counsel by the Clerk of the

Fifth Circuit on September 16, 1998, approximately seven

(7) days after the deadline upon which Petitioners’ coun-

sel was to have the Rebuttal Brief filed. Upon receipt of

the Court’s Order, and despite its confusing language,

Appellants’ counsel worked diligently and mailed Appel-

lants’ Rebuttal Brief to the Court on October 9, 1998.

Further, Petitioners filed a Motion to File the Rebuttal

Brief out of time. Regardless, the Fifth Circuit denied the

Motion, refused to consider the Rebuttal Brief and the

Clerk forwarded a Notice to Petitioners’ counsel stating

that the briefs would be returned, if requested, or

recycled. (Appendix, page I-1).

Pursuant to the Fifth Amendment of the Constitution

of the United States of America, no person shall be

deprived of life, liberty, or property, without due process

of law. U.S. CONST. Amend. V. By failing to have in place

adequate and timely procedures for the granting or

denial of procedural motions, the United States Court of

Appeals for the Fifth Circuit denied Petitioners the due

process afforded by the Fifth Amendment of the Consti-

tution of the United States of America.

A. Due To The Fifth Circuit’s Lack of Procedure,

This Court Should Hear This Case And Impose

Upon The Justices of That Court A Duty To

Devise And Enforce Proper Procedures.

Pursuant to Federal Rule of Appellate Procedure 26,

and the accompanying local rule, extensions of time in

which to file briefs are granted upon a showing of good

cause. Fed. R. App. P. 26(b); Fifth Circuit Loc.R. 26.2

(Appendix, page D-3). While the United States Court of

Appeals for the Fifth Circuit advises through Local Rules

26.2 and 31 that extensions are not readily granted, it

does grant relief upon a showing of good cause. Fifth

Circuit Loc.R. 26.2 and 31 (Appendix, pages D-3 and D-4

through D-8).

The Petitioners were denied the due process afforded

to them by the Constitution of the United States of Amer-

ica when the Fifth Circuit refused to consider their Sub-

stitution and Rebuttal Briefs. While the Fifth Circuit

rigidly adheres to the Federal Rules of Appellate Pro-

cedure and its own local rules, its procedures for ruling

on procedural motions are arbitrarily contrasting and

lackadaisical. The Fifth Circuit denied the Petitioners the

due process afforded to them by the Constitution of the

United States of America when it failed to timely rule

upon their July 1, 1998, Motion to Suspend Briefing

Schedule Or, For Time to File Appellants’ Brief (which

was granted, in part, after Appellants’ and Appellants’

Counsel's initial Brief was filed); refused to allow Peti-

tioners’ to withdraw Appellants’ and Appellants’ Coun-

sel Brief and file their Substitution Brief; denied

Petitioners’ Motions to Clarify Order, Reconsideration

and to File Corrected Brief; failed to timely rule upon

Petitioners’ Motion for Extension to File Appellants’

Rebuttal Brief (which was granted seven.(7) days after

the deadline set therein for Petitioners to file their Rebut-

tal Brief), and denied Petitioners’ Motion & file Rebuttal

Brief out of Time. Had the Fifth Circuit ruled on Peti-

tioners’ Motions in a timely, fair and clear manner, then

Petitioners would have had the benefit of the Court’s

guidance concerning the briefing deadlines. Rather, the

Fifth Circuit fail to grant or deny Petitioners’ Motions ina

timely manner leaving the Petitioners in a state of limbo

regarding the briefing deadlines and also provided

Orders which were arbitrarily contradictory and confus-

ing.

Petitioners respectfully submit that such failure on

the part of the United States Court of Appeals for the

Fifth Circuit is a denial of due process and in violation of

the Constitution of the United States of America. In their

Substitution and Rebuttal Briefs Petitioners clearly sup-

ported their position that the District Judge abused his

discretion when he imposed sanctions pursuant to 28

U.S.C. § 1927. However, due to a lack of procedure in the

Fifth Circuit, Appellants’ and Appellants’ Counsel’s Sub-

stitution and Rebuttal Briefs were not considered when

the Fifth Circuit heard the case. Accordingly, this Court

should now hear the present case to rectify the Fifth

Circuit's past procedural shortcomings regarding the rul-

ing on minor, but nonetheless important, motions. Whiie

it is understood that the Fifth Circuit maintains a volumi-

nous docket, unless the importance of timing concerning

the granting or denial of procedural motions, such as

motions for extensions, is brought to the attention of the

Justices of the Fifth Circuit, then those seeking the relief

for which that Court was conceived will be encumbered

by a legacy of procedural inconsistency.

ll. THE PETITIONERS WERE DENIED DUE PROC-

ESS BY THE REFUSAL OF THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

TO HEAR ORAL ARGUMENT OR PROVIDE ITS

REASONS AS TO WHY IT REFUSED TO HEAR

ORAL ARGUMENT.

Oral argument plays an important role in appellant

advocacy. Federal Rule of Appellate Procedure 34, pro-

vides, in part:

(a) In General.

(2) Standards. Oral argument must be allowed

in every case unless a panel of three judges who

have examined the briefs and record unani-

mously agree that oral argument is unnecessary

for any of the following reasons:

(A) The appeal is frivolous;

(B) The dispositive issue or issues have been

authoritatively decided; or

quately presented in the briefs and record,

and the decisional process would not be

significantly aided by oral argument.

Fed.R.App.P. 34. The case at bar-concerns the imposition

of sanctions upon Petitioner and Petitioners’ counsel by

the United States District Court of the Southern District

of Mississippi, Hattiesburg Division, pursuant to 28

U.S.C. § 1927. F.R.A.P. 34(a)(2) (Appendix, page E-1), is

acknowledged and mirrored by Fifth Circuit Local Rule

34.2 (Appendix, page E-3). While the Petitioners

requested oral argument, their request was never

addressed by the Fifth Circuit. Rather, the Fifth Circuit

ruled on the appeal without hearing oral argument or

providing a reason as to why oral argument was not

allowed.

Should a Court impose sanctions on an attorney pur-

suant to 28 U.S.C. § 1927, the attorney must be afforded

all appropriate protection of due process available under

law. Roadway Express v. Piper, 447 U.S. 752, 767, 100 S.Ct.

2455, 2464, __ L.Ed.2d __, __ (1980); see also Travelers

Insurance Co. v. St. Jude Hospital of Kenner, 38 F.3d 114, 118

(Sth Cir. 1994).

Although the required procedures may vary accord-

ing to interest at stake in a particular context, Boddie v.

Connecticut, 401 U.S. 371, 378, 91 S.Ct. 780, 786, 28 L.Ed.2d

113 (1971), the fundamental requirement of due process is

the opportunity to be heard at a meaningful time and in a

meaningful manner. Matthew v. Eldridge, 424 U.S. 319, 333,

98 S.Ct. 893, 902, 407 L.Ed.2d 18 (1976) (quoting Armstrong

v. Manze, 380 U.S. 545, 562, 85 S.Ct. 1187, 191, 14 L.Ed.2d

62 (1965)). A hearing on a motion for sanctions is proper

when it would assist in the course and determination of

the merits. Travelers Insurance, 38 F.3d at 1418. In the case

at bar, the Petitioners received oral argument neither at

the trial or appellate court levels. Nor were they provided

any reason as to why their repeated requests for oral

argument were denied. In light of the penal nature of

sanctions pursuant to 28 U.S.C. § 1927, Petitioners

respectfully submit that the Fifth Circuit refusal to hear

oral argument in this case, or provide a reason as to why

their request for oral argument was denied, is contrary to

the Federal Rules of Appellate Procedure, case laws and a

denial of the due process which is afforded to them by

the Constitution of the United States of America. Accord-

ingly, the Petitioners respectfully request that this Court

hear this case to rectify the Fifth Circuit’s refusal to

entertain an integral part of Appellate procedure or, in

the very least, provide reason for its refusal so to do.

lt, FIFTH CIRCUIT FAILED TO APPROPRIATELY

APPLY THE APPLICABLE STANDARD OF

REVIEW RESULTING IN AN .NABILITY TO

RECONCILE ITS RULING IN THE CASE AT BAR

WITH PRECEDENT.

The Fifth Circuit's affirmation of the District Court's

imposition of sanctions in the case at bar does not com-

port with precedent set in Fifth Circuit, and in other

federal jurisdictions. Accordingly, the Fifth Circuit's rul-

ing in this case does not comply with law set forth in

Eastmark Apparel, Inc. v. James, 10 F.3d 1156 (5th Cir. 1994);

Travelers Insurance Co., 38 F.3d 1414; Beatrice Foods Com-

pany v. New England Printing and Lithographing Company,

899 F.2d 1171 (Sth Cir. 1990); and Zuk v. Eastern Pennsylva-

nia Psychiatric Institute of The Medical College of Pennsylva-

nia, 103 F.3d 294 (3d Cir. 1996).

A. The Standard Of Review.

When considering the imposition of sanctions pur-

suant to 28 U.S.C. § 1927, the “appellate court applies the

abuse of discretion standard. Eastmark, 10 F.3d at 1163,

citing Cooter and Gell v. Hartmarx Corp., 496 U.S. 384,

405-06, 110 S.Ct. 2447, 2461, 110 L.Ed.2d 359, 381-82

(1990). Specifically, the district court should be reversed

when its decision to impose sanctions pursuant to 28

U.S.C. § 1927 is based upon “ . . . an erroneous view of

the law or on a clearly erroneous assessment of the

evidence.” Id. (emphasis added). When hearing this case,

the Fifth Circuit failed to properly apply the standard of

review. Rather, the Fifth Circuit merely found that the

District Judge was in a far better position to rule on the

Motion for Sanctions (Appendix, page A-4) and assess the

evidence. As a result, the Fifth Circuit, affirming the

District Court, failed to perform its error correcting role.

If the Fifth Circuit is not going to exercise its duty to

review the decisions of the District Court then the Fifth

Circuit should be abolished.

B. THE DISTRICT COURT’S DECISION TO

IMPOSE SANCTIONS WAS BASED UPON A

CLEARLY ERRONEOUS ASSESSMENT OF

THE EVIDENCE.

The thrust of Respondents’ Motion for Sanctions pur-

suant to § 1927 was that Petitioners filed suit in Missis-

sippi without any basis for or investigation of the

allegations for personal jurisdiction contained in the

Complaint. (Appendix, page J-6 through J-7). However,

the original Complaint was filed by T. Roe Frazier, not

Wayne Ferrell or Terry O'Reilly. As an afterthought,

Respondents’ Motion alleged that Petitioners engaged in

unreasonable and vexatious discovery by filing an overly

broad Plaintiff's Particularized Statement of Subject Mat-

ter of Discovery on October 6, 1994, issued thirteen (13)

Subpoena Duces Tecums to non-parties and filing their

Motion to Strike. The District Judge acknowledged that

aggressive discovery tactics were verified in this case due

to the false declarations under penalty of perjury pro-

vided by some of Respondents’ representatives. (Appen-

dix, page B-8 through B-9). The merit of aggressive

discovery in this case was likewise acknowledged by the

Fifth Circuit. (Appendix, page A-4). Regardless, the Dis-

trict Court, affirmed by the Fifth Circuit, imposed sanc-

tions due to Petitioners’ “aggressive discovery tactics.”

The District Court’s imposition of sanctions is an

abuse of discretion because it is based upon a clearly

erroneous assessment of the evidence. The Fifth Circuit

validated the District Court’s error when it failed to

properly review the evidence and perform its error cor-

recting function. Accordingly, the Court should hear this

case to rectify the Fifth Circuit’s failure.

(1) The Fifth Circuit Failed In Its Error Cor-

recting Role When It Affirmed The District

Court’s Finding That The Petitioners

Unreasonably And Vexatiously Multiplied

The Proceedings By Submitting Peti-

tioners’ Particularized Statement of Sub-

ject Matter Discovery.

Plaintiff’s Particularized Statement of Subject Matter

Discovery was, in fact, filed in agreement made by the

parties pursuant to District Court’s Order of September

27, 1994.

The District Court’s September 27, 1995, Order states:

That the parties are to agree on the subject mat-

ter of discovery needed for the Plaintiff to

respond to Defendant’s Motion to Dismiss by

October 12, 1994, and that if the parties cannot

agree to such subject matter, they shall submit

simultaneous briefs on the issue to the Court by

October 17, 1994;

That the parties shall conduct any of the limited

discovery agreed upon by the parties by Decem-

ber 12, 1994; or within sixty (60) calendar days

of the Court Order establishing the permitted

discovery if necessary for the Court to enter

such an Order in the event that the parties are

unable to agree on the permitted discovery.

(See Appendix, page J-9). George Miller, counsel for the

Respondents, memorialized this agreement in his letter to

Petitioners on October 11, 1994, as follows:

Pursuant to Judge Pickering’s September 27,

1994, Order, I called today to discuss “the sub-

ject matter of discovery needed for the Plaintiff

to respond to Defendant’s Motion to Dismiss.”

After I had outlined Defendant’s proposal, you

asked that I reduce our proposal in writing and

send it to you with a copy to Terry O'Reilly. This

letter is in response to your request... .

Because Judge Pickering’s Order enjoined the

parties to agree on the scope of jurisdictional

discovery by October 12 or submit briefs by

October 17, I would appreciate hearing from

you promptly.

(See Appendix, pages J-10 through J-13). The Petitioners’

proposed discovery in accordance with the District

Court’s Order and the Respondents accepted that offer.

Respondents’ agreement was further outlined by Mr. Mil-

ler's letter to Wayne Ferrell dated November 21, 1994,

which states in part:

Enclosed please find the information which we

promised in our agreement on the scope of dis-

covery with respect to personal jurisdiction.

Specifically, | am enclosing a response to certain

requests for information described in Plaintiff's

“Particularized Statement of Subject Matter Dis-

covery” for Defendants, Aerospatiale, Inc., ATR

Marketing, Inc., Avions de Transport Regional,

G.LE., and Aerospatiale, S.N.I. Pursuant to our

agreement, each response contains information

by way of answers to Interrogatories responsive

to paragraphs 8-10, 12, 14-16, and 22-27 of Plain-

tiff’s “particularized statement.”

(See Appendix, pages J-14 through J-15). The agreement

on the scope of discovery is also evidenced by Erick

Lowery’s letter to the District Court dated October 17,

1994, and by letter from Mr. Miller to Wayne Ferrell dated

October 14, 1994. (See Appendix, pages J-16 through

J-19). In Mr. Miller’s letter, he suggests that the parties

jointly write a letter to the District Court stating the

following:

I suggest that the joint letter be sent to Judge

Pickering on Monday read as follows:

Dear Judge Pickering:

In accordance with Your Honor’s

Order of September 27, 1994, the par-

ties have reached an agreement on a

program of discovery to be conducted

with respect to the issues of personal

jurisdiction.

In view of their agreement, the parties

do not plan to file briefs today setting

forth their positions on the appropriate

scope of discovery. We trust that the

Court will let the parties know if the

foregoing mode of proceeding is in any

way unsatisfactory to the Court.

The “contested matters” to which reference is

made in the proposed joint letter to Judge Pick-

ering are Plaintiff's claim of entitlement to the

information described in paragraphs 1 through

6 of Plaintiff’s so-called “particularized state-

ment” served by October 4. The “program of

discovery to be conducted” refers.to the pro-

posal made by Defendants in my letter dated

October 11, 1994.

Although I neglected to mention this matter

when we spoke on the phone this afternoon (for

which I apologize), we would also propose that

the parties agree that Defendant shall provide

discovery in accordance with the October 11

proposal for a period from 1985 to the present,

unless Plaintiff’s “particularized statement”

calls for information covering a shorter period.

(See Appendix, pages J-16 through J-19). As shown by the

information contained in the Appendix, the parties

agreed to the scope of discovery. Based upon the agree-

ment of the parties, it is clear that the District Court

abused its discretion when it imposed sanctions pursuant

to U.S.C. § 1927 upon the Petitioners for unreasonably

and vexatiously multiplying the proceedings.

(2) The Fifth Circuit Failed In Its Error Cor-

recting Role When It Affirmed The District

Court’s Finding That Petitioners Unreason-

é ably And Vexatiously Multiplied The Pro-

ceedings By Issuing Thirteen (13)

Subpoenas Duces Tecum.

The District Court concluded that Petitioners unrea-

sonably and vexatiously multiplied the proceedings by

issuing Subpoena Duces Tecum to thirteen (13) non-par-

ties on or about January 6, 1990, after receiving an exten-

sion of the discovery period (Appendix, pages B-12

through B-13). In so doing, the District Judge stated that

Petitioners obtained the extension through misrepresen-

tation. The District Court, however, is clearly mistaken in

this regard and the Fifth Circuit failed to recognize the

District Court’s error.

First, the District Court erroneously found that the

request to extend the discovery period was made uni-

laterally by the Petitioners. (Appendix, pages J-20

through J-22). The Amended Order actually submitted to

the District Court was prepared by Respondents’ counsel,

Mr. Miller, signed by all counsel, and stated that it was

“on the joint motion of the parties.” (Appendix, pages

J-20 through J-22).

Second, the Amended Order states:

This matter having come on fer hearing on the

joint motion of the parties to extend the limited

jurisdictional discovery and time for responding

to Defendant’s Motion to Dismiss, and the Court

having considered the matter and being fully

advised in the premises, finds that the Motion is

well taken and should be sustained.

(Appendix, page J-20). The District Court did not limit

discovery in any manner and certainly did not limit the

extension of discovery to the taking of the depositions of

the Respondents’ designated depositions. In fact, the

Amended Order submitted jointly by the parties and

signed by the District Court reads:

That the Order entered on the 27th day of Sep-

tember, 1994, be amended and the parties shall

conduct any of the limited discovery agreed

upon by the parties by January 20, 1995.

(Appendix, page J-20).

Petitioners received Respondents’ responses to the

Particularized Statement of Subject Matter Discovery on

or about November 21, 1994. Petitioners had reason to

believe that at least one of the responses was false. Peti-

tioners then took depositions of Respondents and discov-

ered that the designated representatives (who are

supposed to be the persons having the most knowledge

about their respective companies) had not conducted any

research into their company’s contacts with the State of

Mississippi. Petitioners then had no choice but to issue

Subpoena Duces Tecum to obtain documents showing

that at least one of the Defendant’s Declarations Under

Penalty of Perjury in response to Plaintiff's particularized

statements of the subject matter of discovery was false.

The Subpoena Duces Tecum required no extra work

on behalf of Respondents, except inasmuch as Respon-

dents elected to file a Protective Order to prevent Peti-

tioner from proving that the Declarations Under Penalty

of Perjury and the responses to Particularized Statement

of the Subject Matter Discovery were false. Appellant

either worked out agreements with the non-parties or

submitted Agreed Orders to the District Court withdraw-

ing the Subpoena Duces Tecum,? so Respondents were

* The Subpoenas Duces Tecum served on four (4) non-

parties, Beech Aerospace, Inc., U.S. Navy in Meridian,

Mississippi; U.S. Navy Contracting Office in Pascagoula,

Mississippi; and the Keesler Air Force Base in Biloxi,

Mississippi were solved by Agreed Orders to withdraw the

not required to take any action, did not have to incur any

expenses or any attorney’s fees as to these Subpoenas.

Further, although the District Court limited the scope of

the Subpoena Duces Tecum and ordered that the deposi-

tions could take place on a limited basis, the District

Court never suggested that the Subpoena Duces Tecum

should be quashed in their entirety or that the deposition

of the non-parties should not take place. (Appendix,

pages J-28 through J-32).

Indeed, the Petitioner proved that the declaration of

Aerospatiale was false by issuing the Subpoena Duces

Tecum to Vickers, Inc., of Jackson, Mississippi. The docu-

ments produced pursuant to the Subpoenas revealed that,

contrary to the declarations of Thierry Tuot avering that

Aerospatiale S.N.I. had never had a representative visit

the State of Mississippi. Aerospatiale, in fact, had three

(3) employees visiting and inspecting the Vickers, Inc.

plant in Jackson, Mississippi, very near the time Mr.

Tuot’s declaration was filed. Also, contrary to Aero-

spatiale’s discovery responses wherein Aerospatiale

denied ever having conducted business in the State of

Mississippi or having entered into a contract with a resi-

dent of the State of Mississippi, the issuance of the Sub-

~poena Duces Tecum prompted counsel for Aerospatiale,

S.N.I. to “suddenly discover” the existence of a contract

between Aerospatiale and Vickers, Inc., which was part of

a relationship that existed for a period of over twenty (20)

years and had resulted in sales of over $3,700,000.00 in

Subpoenas which required no involvement by the Appellees.

(Appendix, pages J-23 through J-27).

1993 alone.? To add insult to injury, Mr. Miller, counsel for

Aerospatiale, represented to the District Court at a hear-

ing that he had notified Appellant of this “newly discov-

ered” information within ten to fourteen days after it was

brought to his attention. The date of the letter revealing

these contacts to Appellant was January 13, 1995. The

deposition of Theirry Tuot, taken January 16, 1995,

revealed that Mr. Miller was advised of the “mistake”

before the Christmas holidays. Therefore, at a minimum,

more than three weeks expired before Mr. Miller advised

Petitioners and/or the District Court of the discrepancy.‘

(Appendix, pages J-3 through J-4).

* It is noteworthy that Respondent, Aerospatiale, S.N.I.,

did not recognize its “error” as to the extent of its contacts with

the State of Mississippi until Petitioner issued the Subpoena

Duces Tecum to the thirteen (13) non-parties. Arguably,

Respondents’, Aerospatiale, N.C.I., unreasonably and

vexatiously multiplied the proceedings in this case by filing at

least one false declaration under penalty of perjury and false

responses to particularized statement of subject matter of

discovery.

* The following chronology of events should assist the

Court in considering the misconduct of Defendants and the

basis for some of the actions taken by Petitioners’ counsel:

Aug. 1993 Aerospatiale, S.N.I. employees are in

Mississippi at Vickers plant serge

June 1994 Declaration of Thierry Tuot stating

Aerospatiale, S.N.I. has had no contacts

with MS

Aug.-Sept. 1994 Aerospatiale, S.N.I. employees are in

Mississippi at Vickers plant

Nov. 1994 Aerospatiale, S.N.I. submits unsigned

Responses to Certain Requests for

Information, denying any contacts with

Mississippi

Lastly, the District Court erroneously found that, in

response to Defendants’ Emergency Motion to Enforce

Order Governing Discovery on Personal Jurisdiction and

to Quash Subpoenas served on thirteen (13) non-parties,

Petitioners argued without authority that Respondents’

contacts outside the State of Mississippi with Mississippi

corporations would be relevant to the issue of personal

jurisdiction. The case Petitioner relied upon was Wilkin-

son v. Mercantile National Bank of Dallas, 529 So.2d 616

(Miss. 1988). The Wilkinson case holds that, if a company

that does business outside the State of Mississippi com-

mits a tort outside the State of Mississippi which causes

damage in the State of Mississippi, then the tort occurs

partly in Mississippi and the Mississippi Courts have

jurisdiction of that company. A reasonable extension of

Wilkinson is that business activity occurring outside the

State of Mississippi that results in payments being made

to Mississippi corporations inside the State of Mississippi

is at least discoverable information with regard to the

issue of minimum contacts and personal jurisdiction.

Dec. 16-21, 1994 George Miller, counsel for Aerospatiale,

S.N.I., is advised by Thierry Tuot of that

company’s relationship with Vickers in

Mississippi

_______Jan. 5, 1995 ___ Petitioners’ counsel-issues_14 -Subpoenas————-

Duces Tecum to non-parties, including

Vickers

Jan. 13, 1995 Letter from George Miller to Wayne E.

Ferrell, Jr. acknowledging Aerospatiale,

S.N.I.’s contacts with Mississippi

Jan. 23, 1995 Aerospatiale, S.N.I. submits its corrected

Responses to Certain Requests for

Information, outlining its contacts with

Mississippi

Accordingly, Petitioners did not at any time misrepresent

to the District Court that they had a case which they did

not have. Instead, the District Court merely disagreed

with Petitioners’ interpretation of Wilkinson.

(3) The Fifth Circuit Failed In Its Error Cor-

recting Role When It Affirmed The District

Court’s Finding That Petitioners Unreason-

ably And Vexatiously Multiplied The Pro-

ceedings By Serving Fifty (50) Requests for

Production.

The Amended Order prepared by the Respondents

and signed by the District Court extended the limited

jurisdictional discovery period in this case to January 20,

1995. (Appendix, pages J-20 through J-22). Petitioner

served Respondents with fifty (50) requests for produc-

tion of documents on January 20, 1995. Respondents

responded to these requests without filing any objections

or seeking any protection from the District Court.

Also, Respondents never filed the required pre-dis-

covery disclosure information and never provided Peti-

tioners with documents as required by the pre-discovery

disclosure rules. Instead, Respondents filed a Motion to

Dismiss supported by Declarations Under Penalty of Per-

jury, which Petitioner had good reason to suspect con-

tained false statements. Petitioner had no other way of

proving Respondents made false statements to the Dis-

trict Court other than issuing the Subpoenas to non-

Parties (as previously discussed) and submitting requests

for production of documents to Respondents. If Respon-

dents had provided information in the pre-discovery dis-

closure stage, provided correct information in their

Declarations Under Penalty of Perjury, or provided cor-

rect and complete information in the F.R.C.P. 30(b)(6)

depositions, the request for production of documents and

Subpoenas would have been unnecessary.

As it turns out, at least one of the Respondents was

found to be conducting business in the State of Missis-

sippi to the extent of $3.7 million in 1993 alone and had

an ongoing business relationship with a Mississippi busi-

ness for a period of over twenty (20) years. Petitioner had

a duty to zealously represent his client and not to stand

idly while Respondents made false representations to the

District Court in an attempt to avoid the District Court's

jurisdiction. Petitioners’ actions did not vexatiously and

unreasonably multiply the praceedings, and the District

Court’s ruling on this item is clearly erroneous and

should have been found to be contrary to the evidence

and reversed by the Fifth Circuit.

(4) The Fifth Circuit Failed In Its Error Cor-

recting Role When It Affirmed The District

Court’s Finding That Petitioners Unreason-

ably And Vexatiously Multiplied The Pro-

ceedings By Filing A Motion to Strike.

The District Court erroneously concluded that the

Petitioner-unreasonably and vexatiously multiplied the

proceedings by filing a Motion to Strike. (Appendix, page

B-14). The District Court, however, abused its discretion

when it assessed sanctions regarding the filing of the

Motion to Strike without allowing the Petitioners an

opportunity to argue the Motion to Strike; considering

the Motion to Strike; and ruling on the Motion to Strike.

The Fifth Circuit erred when it affirmed the District

Court’s findings and imposition of sanctions without con-

sidering the District Court's actions.

Petitioners were justified in filing the Motion to

Strike because at least one of the Respondents had filed a

false declaration under penalty of perjury and false

responses to the Plaintiffs’ particularized statement of the

subject matter of discovery. The District Court had taken

no action, sua sponte, and appeared content to let the

fraudulent conduct go unpunished. Petitioners’ Motion to

Strike pleaded three alternative methods by which the

District Court could have remedied the unacceptable con-

duct of Respondents, yet the District Court, without con-

sidering the merits of the Motion, found the Petitioners’

Motion to be factually and legally without basis and

chose to sanction Petitioner.

On or about June 27, 1994, Thierry Tuot, general

counsel for Aerospatiale, S.N.I., filed a declaration under

penalty of perjury as follows:

I have no personal knowledge of any employees

of Aerospatiale visiting the State of Mississippi

on behalf of Aerospatiale or of any contacts

initiated with the State of Mississippi by Aero-

spatiale employees on behalf of Aerospatiale at

any time in the past. Further, after conducting

an investigation, I have discovered no evidence

of any visits to or contacts with the State of

Mississippi by Aerospatiale personnel on behalf

of the company at any time.

In accordance with 28 U.S.C. § 1746, I declare

under penalty of perjury under the laws of the

United States of America that the foregoing is

true and correct.

(Appendix, page J-50). Respondents also provided an

unsigned Particularized Statement of Fact which was to

be signed by Mr. Tuot which claimed, as did Mr. Tuot’s

affidavit, that Aerospatiale had never been to Mississippi,

and did not have any connection with anyone in Missis-

sippi. Mr. Tuot testified in his deposition that he was an

attorney with Aerospatiale, S.N.I.; that he began work

with Aerospatiale in 1991; that he had no personal knowl-

edge about any of the events that occurred from 1985 to

1991. Mr. Tuot said that he made an investigation and

checked with several individuals with Aerospatiale, but

had no knowledge whether those individuals were even

with Aerospatiale from the period of time of 1985 to 1991.

It was obvious from the deposition of Mr. Tuot that he

had no personal knowledge of the business of Aero-

spatiale for the period of time from 1985 to 1991 and had

no knowledge as to whether Aerospatiale did any busi-

ness in the State of Mississippi from 1985 to 1991.

(Appendix, pages J-51 through J-56). It is indeed strange

that after Mr. Tuot signed a declaration under penalty of

perjury (stating that Aerospatiale had no connection in

the State of Mississippi; that Aerospatiale had never been

to the State of Mississippi; and that Aerospatiale did not

have any contacts with the residents of the State of Mis-

sissippi), and immediately after Subpoenas Duces Tecum

were issued to non-parties (including Vickers, Inc., which

had a facility in Jackson, Mississippi), that representatives

of Aerospatiale suddenly discovered they had been to Missis-

sippi and, in fact, were in Mississippi near the very time Mr.

Tuot insisted that he had performed an investigation and

discovered that there were no Aerospatiale employees in

the State of Mississippi. A copy of the many responses to

the Particularized Statement of Fact (which were not

—S ee

signed by Mr. Tuot) prove that the initial Declaration

Under Penalty of Perjury was false. (Appendix, pages

J-57 through j-63).

Respondents filed declarations under penalty of per-

jury with the District Court in an effort to have the

Complaint and the Amended Complaint dismissed.

Respondents chose representatives who had little knowl-

edge about their company’s business during the relevant

time frame. For instance, Thierry Tuot did not work for

and had no personal knowledge of the activities con-

ducted by Aerospatiale in the United States from 1985 to

1991. Likewise, Gregory Bradford began working with

Aerospatiale, S.N.I. in November of 1990, and remained

there until January 1, 1991, when he joined Aerospatiale,

Inc. Mr. Bradford, like Mr. Tuot, was not even working

for Aerospatiale, S.N.I. or Aerospatiale, Inc., from the

period of 1985 to 1990 and had no personal knowledge

about any of the business affairs of those companies at

the time. Roberto Camiz signed a Declaration Under Pen-

alty of Perjury that he had knowledge of Alenia’s, a

division of Finneccianica’s, contacts with the State of

Mississippi. When taking Mr. Camiz’s deposition, how-

ever, he admitted that he had no personal knowledge

about any of the things contained in the declaration that

he signed, under penalty of perjury, and his Response

and Particularized Statement of Fact was based solely

upon his conversation with other lawyers in other depart-

ments of Finneccianica. At least one of the Declarations

under Penalty of Perjury (that of Thierry Tuot) was false,

and the District Court should have sanctioned the Defen-

dant. Rather, the District Court ignored the Petitioners’

request; refused to rule on Petitioners’ Motion to Strike;

and failed to even give Petitioner a hearing on its Motion

eee

to Strike. The District Court, instead, abused its discre-

tion when it chose to sanction Petitioner for filing the

Motion to Strike.

Petitioner filed the Motion to Strike, not for any

improper purpose or in bad faith, but to preserve the

integrity of the judicial system by seeking appropriate

disciplinary action against Respondents for intentionally,

or at least recklessly, submitting to the [istrict Court false

statements on material facts. Accordingly, the facts of this

case prove Petitioner did not unreasonably and vex-

atiously multiply these proceedings. It was an abuse of

the District Court’s discretion to conclude Petitioners’

Motion to Strike “was totally without basis in law or fact

and was nothing but a delay in harassment technique

perpetrated against [Respondents]” without hearing, con-

sidering or ruling on the Motion. (Appendix, page B-14).

For these reasons, the District Court’s award of sanctions

against the Petitioner on this issue is contrary to the

weight of the evidence and should have been reversed

and set aside by the Fifth Circuit.

C. THE DISTRICT COURT’S ASSESSMENT OF

THE EVIDENCE IS CLEARLY ERRONEOUS

AND CONTRARY TO PRECEDENT.

Sanctions—pursuant to § 1927 should be imposed

“only in instances evidencing a ‘serious and standard

disregard for the orderly process of justice.’ ” White v.

American Airlines, Inc., 915 F.2d 1414, 1427 (10th Cir. 1990)

(quoting Dryling v. Peugeot Motors of America, Inc., 768 F.2d

1159, 1165 (10th Cir. 1985) (quoting Kiefel v. Las Vegas

Hacienda, Inc., 404 F.2d 1163, 1167 (7th Cir. 1968), cert.

denied, 395 U.S. 908, 89 S.Ct. 1750, 23 L.Ed.2d 221 (1969).

Further, the guiding objective of § 1927 sanctions is to

deter any purposeful and unnecessary delay of the pro-

ceedings. Zuk, 103 F.3d at 297, quoting Beatrice Foods, 899

F.2d at 1177. Specifically, the Court must find a willful

bad faith on the part of the party to be sanctioned prior to

imposing penalties under § 1927. Id., quoting Williams v.

Giant Eagle Markets, Inc., 833 F.2d 1184, 1191 (3d Cir.

1999).

Based upon the evidence presented herein, the Dis-

trict Court’s assessment that the Petitioners unreasonably

and vexaciously multiplied the proceedings is clearly

erroneous and a departure from the standard for the

imposition of sanctions pursuant to 28 U.S.C. § 1927. In

light of this deviation, and the Fifth Circuit’s failure to

conduct an assessment of the evidence under the appro-

priate standard of review in light of the applicable law,

Petitioners respectfully request that the Court exercise its

discretion to hear this case for the purpose of performing

an error correcting function in its role as supervisor of

federai litigation.

IV. CONCLUSION

The Fifth Circuit denied Petitioners their right to due

process guaranteed by the Constitution of the United

States of America by failing to promulgate and utilize

proper procedures for the ruling on procedural motions,

such as motions for extension, and by failing to afford

Petitioners oral argument, when requested, or an expla-

nation of its refusal to hear oral argument. Further, the

Fifth Circuit failed to perform its appellate function when

it failed to apply the appropriate standard of review and

assess the evidence in light of the applicable law when

considering the District Judge’s imposition of sanctions

pursuant to 28 U.S.C. § 1927. Accordingly, this Court

should hear the instant case to correct the Fifth Circuit's

procedural shortcomings and failure to perform its appel-

late role.

Respectfully submitted, this the 22 day of June, 1999.

Wayne E. Ferret, Jr.

Mississippi Bar No. 5182

Attorney at Law

Counsel of Record

405 Tombigbee Street

Jackson, Mississippi 39205

(601) 969-7514

Of Counsel:

Terry O’Retmty, Esq.

O’Renty & CoLtins

A PROFESSIONAL CORPORATION

2500 Sand Hill Road, Suite 201

Menlo Park, California 94025

(650) 854-7700

ES = eS

A-1

APPENDIX A

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 98-60098

Summary Calendar

(Filed Feb. 19, 1999)

TONY B. JOBE, Assignee of

AIR NEW ORLEANS, INC.,

Plaintiff-Appellant,

versus

ATR MARKETING, INC.; AVIONS DE TRANSPORT

REGIONAL, (G.LE.); AEROSPATIALE, S.N.L;

FINMECCANICA S.P.A., Individually and doing

business as Alenia (a division of Finmeccanica),

also known as Aeritalia S.P.A. and the Successor in

the Interest of Aeritalia;s AEROSPATIALE, INC.;

DEFENDNTS [sic] A-M,

Defendants-Appellee

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 2:94-CV-18-PG

Before WISDOM, DUHE, and DeMOSS, Circuit Judges.

PER CURIAM:*

Counsel for named Plaintiff-Appellant Tony Jobe

appeal a ruling of the district court ordering counsel to

pay $15,000 in attorneys fees to counsel for the defen-

dants. The district court ordered this award as a form of

sanctions under 28 U.S.C. § 1927, for unreasonably and

vexatiously multiplying the proceedings. We affirm.

Before addressing the merits of the case, we address

the issue of jurisdiction. Appellees counsel have failed to

identify themselves as the appealing party as required by

Fed.R.App.P. 3 (c). If counsel have, in fact, failed to

comply with Rule 3, the appeal itself is defective, and this

Court does not have jurisdiction to hear it.!

The notice of appeal lists Tony B. Jobe as the appel-

lant in both the caption and the body of the document.

Nowhere does the document itself explain that it is in fact

Jobe’s counsel who are appealing the order of sanctions.

Jobe’s counsel contends that the statement that the appeal

is being filed for Jobe “by and through his counsel” is

sufficient under the caselaw of this Circuit.?

The precedent cited by Jobe may be inapplicable to

the case at bar. We decline ATR’s invitation to review the

*Pursuant to 5TH Cir. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH Cir. R.

47.5.4.

1 New York Life Ins. Co. v. Desohtel, 142 F.3d 873, 884 (Sth Cir.

1998).

2 Garcia v. Wash, 20 F.3d 608, 609-10 (5th Cir. 1994).

A-3

jurisdictional question, however, as the appeal itself is

plainly without merit.

We review a district court’s order of sanctions under

§ 1927 for an abuse of discretion.4 In the case at bar

counsel for Jobe undertook the following actions for

which the district court ordered sanctions: (1) issued a

“particularized statement of discovery” which was, in

fact, overly broad, unduly burdensome, and requested

irrelevant information; (2) issued thirteen subpoenas

duces tecum after being granted an extension of discov-

ery for the sole purpose of conducting telephonic deposi-

tions; (3) issued fifty requests for production of

documents on the last day by which discovery was to be

completed; and (4) filed a motion for default judgment

and to strike all of defendant’s responsive pleadings

which the district court found to be without basis in law

or fact.

Appellants argue that under the caselaw of this Cir-

cuit, sanctions under § 1927 “should be ‘sparingly

applied’ and, only if the entire litigation was unwar-

ranted and should never have been filed or pursued,

should the Court utilize § 1927 to shift the financial

burden of defending the action.”5 This incomplete recita-

tion of Fifth Circuit precedent is exactly the type of

> Texas Employers’ Ins. Ass'n v. Jackson, 862 F.2d 491 (5th Cir.

1988).

* Travelers Ins. Co. v. St. Jude Hosp. of Kenner, 38 F.3d 1414,

1416-17 (Sth Cir. 1994).

> Appellant's Brief at p. 12, citing F.D.I.C. v. Calhoun, 34 F.3d

1291, 1297 (5th Cir. 1994) (internal citations omitted).

A-4

misrepresentation of law for which counsel was origi-

nally sanctioned. The case to which appellants cite actu-

ally stands for the proposition that the entire financial

burden shouid be shifted only if the entire litigation was

unwarranted. In the case at bar, the district court refused

to shift the entire financial burden and instead imposed

limited sanctions of $15,000.

Appellants further argue that they were, in essence,

forced to undertake unreasonable discovery procedures

by false statements made under oath by representatives

of the defendants. As the district court noted in its order,

this would certainly warrant “aggressive” discovery pro-

cedures, but not the vexatious and deceitful discovery

practiced by counsel for Jobe.

We conclude by noting that it is the district judge

who is in the best possible position to assess fairly the

damage caused by this type of litigation technique, and it

is for that reason that the abuse of discretion standard is

in place. Finding no abuse of discretion, we AFFIRM.

B-1

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

HATTIESBURG DIVISION

TONY B. JOBE, Assignee of

AIR NEW ORLEANS, INC. PLAINTIFF

VERSUS CIVIL ACTION NO. 2:94-CV-18PS

ATR MARKETING, INC., AEROSPATIALE,

AERITALIA, and AVIONS de TRANSPORT

REGIONAL (G.LE.) DEFENDANTS

MEMORANDUM OPINION AND ORDER

(Filed Aug. 28, 1996)

This matter is before the Court on Defendants’

Motion for Sanctions against Plaintiffs Counsel pursuant

to this Court’s inherent power, 28 U.S.C. § 1927, and the

Mississippi Litigation Accountability Act. The Court hav-

ing considered the Motion, the response, the briefs of

counsel, the authorities cited, the pleadings and exhibits

on file, and having conducted at least two oral argument

hearings on various phrases [sic] of this case and

numerous telephone conferences, finds as follows, to wit:

The Defendants’ basic allegation is that Plaintiffs

counsel failed to conduct any investigation or at least a

proper investigation into whether or not this Court had

jurisdiction over the Defendants. Defendants also assert

that Plaintiffs counsel have advanced spurious legal theo-

ries and made factual representations without first con-

ducting an investigation into the accuracy of those

representations and that they have misrepresented facts

to the Court, made reckless allegations of impropriety

B-2

against the Defendants and their counsel and engaged in

unreasonable and vexatious discovery and violated Court

orders. The Defendants assert that they are entitled to an

award of sanctions against Plaintiffs counsel in an

amount equal to the attorney fees and expenses reason-

ably incurred by the Defendants in this action.

This matter was originally filed in this Court on

January 12, 1994. On June 29, 1994, all Defendants filed a

Motion to Dismiss for lack of personal jurisdiction. The

Plaintiff responded by requesting to hold the Motion to

Dismiss in abeyance pending completion of discovery. On

July 21, 1994, the Magistrate Judge denied the Motion to

hold in abeyance and stayed all discovery pending this

Court’s ruling on Defendants’ Motion to Dismiss. On

September 20, 1994, the Plaintiff moved to amend the

complaint and to be allowed certain discovery on the

jurisdictional issue. On September 27, 1994, after a tele-

phonic hearing, this Court entered an Order allowing the

Plaintiff to amend the complaint and to conduct limited

discovery as set forth in the Order. The limited discovery

period was to terminate on December 12, 1994. By agree-

ment of the parties, the deadline for conducting discov-

ery was extended to January 20, 1995.

On January 6, 1995, after the Court had entered a

January 4, 1995, Order allowing the extension of discov-

ery, the Plaintiff caused to be issued subpoenas duces

tecum to thirteen non parties. On January 11, 1995, the

Defendants moved to enforce the Court’s prior Order

governing discovery and to quash the Plaintiffs sub-

poenas served upon the thirteen non parties. After con-

ducting various hearings and telephone conferences on

the subject, the Court on January 24, 1995, entered an

B-3

Order on Defendant's emergency motion to enforce the

Order governing discovery and ordered the Plaintiff to

comply with the Court’s previous Order limiting discov-

ery to jurisdictional issues. Thereafter, on January 27,

1995, the Plaintiff filed its amended response to the

Defendants’ motion to dismiss. On February 3, 1995, the

Defendants filed their rebuttal to that response to which

the Plaintiff, on February 7, 1995, moved the Court to

strike the responsive pleadings filed by the Defendants

and for entry of default judgment. On May 3, 1995, the

Court conducted oral arguments on the Defendants’

motion to dismiss and granted that motion based on lack

of personal jurisdiction over all Defendants. That ruling

was memorialized in an Order entered on May 10, 1995

On May 24, 1995, the Defendants filed the present motion

pending before the Court for sanctions against the Plain-

tiffs counsel.

This case has been long and overly contentious litiga-

tion. The Plaintiff was the owner of a commuter airline

operating out of New Orleans. He apparently had entered

into preliminary negotiations to purchase certain aircraft

from the Defendants for use in that airline business. The

Plaintiff had also entered into something similar to a joint

venture agreemen: with Continental Airlines whereby

Continental would handle certain administrative, sched-

uling and baggage handling functions for the Plaintiffs

company, Air New Orleans. To facilitate the consumma-

tion of this joint venture agreement, the Plaintiff appar-

ently turned over certain confidential financial

documents and strategic plans to Continental Airlines. In

separate litigation, the Plaintiff has alleged that Continen-

tal Airlines misused that information and improperly

‘ B-4

provided it to these Defendants to the detriment of Plain-

tiff and Air New Orleans. At any rate, the allegation of

the complaint before the Court is that these Defendants,

through fraud or otherwise, refused to sell six commuter

airplanes to the Plaintiff because of some covert connec-

tion with Continental Airlines who had misappropriated

Air New Orleans’ strategic plan for its own benefit. The

Plaintiff has asserted to the Court that he filed suit

against Continental Airlines in Texas and procured a

rather substantial settlement. However, Continental Air-

lines was placed in bankruptcy and the Plaintiff has

admitted candidly that the value of his settlement against

Continentai Airlines was greatly reduced. Apparently

either during that litigation or shortly thereafter, the

Plaintiff filed the present action against these Defendants

because of the alleged fraudulent connection between

these Defendants and Continental Airlines which

resulted in the Defendants’ refusing to consummate the

sale of the six commuter airplanes to the Plaintiff. As a

result, the Plaintiff alleges that his company went into

bankruptcy and was ultimately shut down.

The basis of Defendants’ motion to dismiss was that

this Court lacked personal jurisdiction over any of the

defendants. The Plaintiff hotly contested this all the way

up through the oral argument hearing on the motion to

dismiss and has appealed this Court’s dismissal of his

action. The Fifth Circuit has now affirmed that decision.

To say that the Plaintiff was tenacious in trying to estab-

lish personal jurisdiction would be a gross understate-

ment. Every time the Defendants asserted a defense

against personal jurisdiction, the Plaintiff provided a

new, and usually novel, basis for the Court to assert

eee

B-5

personal jurisdiction. Ultimately the Court ruled against

the Plaintiff and in favor of the Defendants finding that it

had no personal jurisdiction over any of the Defendants.

After the conclusion of the hearing on the motion to

dismiss, the Defendants filed the present motion assert-

ing that they are entitled to attorneys’ fees and costs

expended by them in defending this claim for the

grounds asserted above. The Defendants have moved the

Court to exercise its inherent powers to award them their

full attorneys’ fees and costs or in the alternative to

proceed under 28 U.S.C. § 1927 or the Mississippi Litiga-

tion Accountability Act. The Defendants asserted in their

original motion that they were not moving for sanctions

under Rule 11. However, in reply to the Plaintiffs

response and in supplemental replies the Defendants

now assert that if the Court chooses to enter sanctions

pursuant to Rule 11 it is within the Court’s discretion.

What concerns the Court most about the conduct of

counsel for Plaintiff is that counsel argued so forcefully

and with such seeming sincerity about matters as to

which he had no basis in some instances in the law and in

other instances in the facts for the position that he was

taking. In retrospect, this Court is well aware that the

original order of the Magistrate Judge denying Plaintiff

the opportunity to do discovery or to amend his plead-

ings was correct and should have been followed by this

Court. However, this Court out of an abundance of pre-

caution and because of the persistence and apparent sin-

cerity of counsel for Plaintiff did not want to foreclose

Plaintiff if he had a legitimate cause of action. However,

because of the aggressive but misplaced argument of

counsel for Plaintiff, the Court did permit the discovery

B-6

to go forward and even after that point counsel continued

to be less than candid with the Court and with counsel

opposite and persisted in maintaining positions that were

and are untenable. Specifically the Court is concerned

that counsel for the Plaintiff failed to acknowledge that

residence was a prerequisite under clearly established

Mississippi case law for obtaining jurisdiction under the

doing business prong of the long arm statute. It is also

obvious that counsel for Plaintiff filed documents before

this Court under oath that Plaintiffs Principal place of

business was in Mississippi at the same time Plaintiff was

maintaining in other jurisdictions that it’s [sic] principal

place of business was in Louisiana. The two positions are

contradictory. The obvious futility of Plaintiff's position

in this regard is borne out by the fact that Plaintiff

entirely abandoned this argument before the Fifth Circuit

Court of Appeals.

The Court is likewise concerned that counsel for

Plaintiff represented to the Court and counsel for the

Defendant that there was an extension of discovery

needed for the purpose of taking telephonic 30(b)(6)

depositions. Immediately after the Court entered the

Order making the extension so that counsel could con-

duct these telephonic depositions, counsel served sub-

poenas upon thirteen non parties. Attorneys representing

clients before this Court are officers of the Court. Counsel

should have advised the Court of all of the reasons coun-

sel desired an extension, then the Court could have made

an informed decision to allow the extension or not to

allow the extension. As it was, the Court only knew part

of the reason that counsel for the Plaintiff was asking for

an extension. This Court has a right to expect counsel to

ee ees -

B-7

be candid and forthcoming. Counsel at no time repre-

sented to this Court that counsel had in mind such exten-

sive discovery when counsel prevailed upon the Court to

extend the discovery deadline.

Counsel likewise misrepresented to the Court that

counsel had a case holding that contracts fulfilled outside

of the State of Mississippi would have a bearing on

whether a Defendant was doing business in this State if

such contracts were with corporations domiciled in the

State of Mississippi. Although counsel expressly and

specifically represented this to the Court in a telephone

conference, when the Court called upon counsel to pro-

vide the case that counsel had told the Court he had, he

was unable to furnish such a case: The Court did not

think that the argument counsel for Plaintiff was making

was in accordance with controlling case law, and for that

reason asked counsel for the Plaintiff if he had authority

for his argument. The colloguy went something like this:

“Do you have a Mississippi case that holds

this?”

Response: “Yes.”

“Well, I want to see it, send me a copy of it.”

Response: “I will do that.”

This case would have been terminated long ago had

it not been for the persistence of counsel for the Plaintiff

in stating to the Court facts that were not supported

either by the law in some instances or by the facts in

other instances.

The conclusion that the Court reaches in this matter

is tempered somewhat by the fact that counsel for the

B-8

Plaintiff has represented that his aggressiveness is due in

part to his being aware of a case in another jurisdiction in

which the defendant had not been forthcoming. Counsel

for the Defendant is right that whether Defendant was or

was not forthcoming in a matter being litigated in

another forum is not material to any issue before this

Court. It does, however, give some explanation as to the

aggressiveness of counsel for Plaintiff in trying to elicit

information from the Defendants. However, in the opin-

ion of this Court, counsel for the Plaintiff went beyond

the bounds of propriety in conducting discovery and

arguing to the Court as will be more fully set out later.

This Court also is aware and the final judgment in

this case will be tempered by the fact that Defendant or at

least one of the Defendants made misrepresentations to

the Court. The Court does not find that these misrepre-

sentations were willful but nevertheless they were mis-

statements. First, the Defendant Aerospatiale, SNI,

provided an affidavit or declaration that it had never had

representatives in the State of Mississippi when in fact

this was not true. Additionally, the same Defendant

denied that it had any contracts or had done any business

in Mississippi when it turned out that this company had

done business with Vickers of Jackson for a considerable

period of time and in 1993 alone had sales of over 3.7

million dollars. Whether this information was deliberate

or not, it does give Plaintiff's counsel a reason to be

aggressive in trying to determine the truthfulness of the

information provided by the Defendants. However, as

previously indicated, the Court is of the opinion that

even taking that into consideration that there were

B-9

instances in which counsel for Plaintiff took positions

that were unreasonable and vexatious.

Counsel on a number of times was requested to agree

to things that obviously should have been agreed to and

he refused and declined to do so. It appears that counsel

for the Plaintiff would not even have agreed to the time

of the day if both his watch and that of the Defendant

were synchronized. That kind of failure to cooperate

while not alone providing a basis for awarding attorneys

fees taken together with the total conduct of counsel for

Plaintiff does provide the basis for the award of attorney

fees which will be set out more fully in the balance of this

opinion. This Court has concluded under the totality of

the situation that the Court should not use its inherent

power to sanction Plaintiff. However, the totality of the

circumstances has been taken into account as the Court

rules on specific instances of unreasonable and vexatious

conduct.

An attorney has a duty of one hundred percent loy-

alty to his client. Neither his self interest nor the interest

of any person can come ahead of an attorney's obligation

to his client. An attorney has a responsibility to vigor-

ously represent his client, but the duty of representation

never imposes upon an attorney a responsibility to be

discourteous, uncoopera‘ive, to conceal facts, to misrep-

resent, to harrass, or to be unreasonable or vexatious.

The Court is aware of the power it possesses to enter

appropriate sanctions under its inherent powers pursuant

to the Supreme Court's dictates in Chambers v. Nasco, 501

U.S. 32, 111 S. Ct. 2123, 115 L. Ed. 2d 27 (1991). However,

the Court is also well aware of the criticisms of using its

B-10

inherent power in the face of specific statutory or Rule

authority allowing the Court to appropriately sanction

undesirable conduct. For the reasons stated hereinafter,

the Court is of the opinior-that the appropriate way to

sanction the complained of conduct in this case is not

under its inherent power but instead under 28 U.S.C.

§ 1927. Neither will the Court address sanctions under

Rule 11 since the Court is of the opinion that the matter is

appropriately resolved under § 1927.

28 U.S.C. § 1927 provides:

Any attorney or other person admitted to con-

duct cases in any court of the United States or

any territory thereof who so multiplies the pro-

ceedings in any case unreasonably and vex-

atiously may be required by the court to satisfy

personally the excess costs, expenses and attor-

ney fees reasonably incurred because of such

conduct.

This section does not allow an imposition of costs,

expenses or attorney fees against parties but only against

their attorney or attorney-parties. The Plaintiff in this

case is an attorney. See, Breazeale v. Smith, 857 F.2d 258

(5th Cir. 1988). As the Fifth Circuit has pointed out,

§ 1927 only creates liability “for excess costs, expenses and

attorney fees reasonably incurred because of the attor-

ney’s unreasonable and vexatious multiplication of the

proceedings.” Browning v. Kramer, 931 F.2d 340, 344 (Sth

Cir. 1991). “Under § 1927, only those fees and costs asso-

ciated with ‘the persistent prosecution of a meritless

claim’ may be awarded.” Thomas v. Capital Security Ser-

vices, Inc., 836 F.2d 866, 875 (5th Cir. 1988) (en banc).

“Except when the entire course of proceedings were

B-11

unwarranted and should neither have been commenced

nor persisted in, an award under § 1927 may not shift the

entire financial burden of an action’s defense.” Browning

v. Kramer, 931 F.2d at 345. In order to award sanctions

under § 1927 the Court must find that the attorney's

conduct in multiplying the proceedings was both unrea-

sonable and vexatious. See, Federal Deposit Insurance Corp.

v. Connor, 20 F.3d 1376 (5th Cir. 1994).

Based upon the Court’s determination that neither

Plaintiff nor Plaintiff's counsel is subject to sanction

under Rule 11 or the inherent powers of this Court, the

Court is bound by the dictates of § 1927 and the cases

interpreting that section to specifically delineate the pro-

ceedings which, in the opinion of the court, Plaintiff’s

counsel commenced or persisted in which unreasonably

and vexatiously multiplied the proceedings before the

Court.

The Defendants in their motion, have delineated

what they consider to be eight specific instances of con-

duct by plaintiff's counsel which unreasonably and vex-

atiously multiplied the proceedings. The Court has

carefully reviewed those eight specific instances and the

Plaintiff's response thereto and has recalled its involve-

ment in this case from its inception and the untoward

amount of time it spent on resolving the various ques-

tions relating to jurisdictional issues presented to reach

its conclusion in this case and to reach the conclusions

contained hereinafter in support of this decision.

The Court therefore finds that Plaintiff's counsel has

unreasonably and vexatiously multiplied the proceedings

B-12

in this case before the Court in the following specific

instances:

1. The Court is of the opinion that the Plaintiff’s

particularized statement of subject matter discovery filed

on October 6, 1994, pursuant to this Court’s September

27, 1994, order of the Court unreasonably and vexatiously

multiplied the proceedings. The Court finds that the

' Plaintiff’s requests, contained in what was supposed to

be a “particularized statement”, were overly broad and

unduly burdensome. The statement requested informa-

tion that was totzlly irrelevant in time and place to the

limited discovery permitted by this Court. The Court is

also of the opinion that Plaintiff’s counsel, in response to

requests from Defendants to clarify the discovery

requests, were tardy, discourteous and unprofessional.

The Court is therefore of the opinion that the Defendants

are entitled to an appropriate award of attorney’s fees

and costs regarding this item.

2. The second item which the Court views as having

unreasonably and vexatiously multiplied the proceedings

in this case was Plaintiff’s counsel’s issuance of sub-

poenas duces tecum to thirteen non party witnesses on

January 6, 1996, after having received an uncontested

extension of the discovery period. The Defendants made

a reasonable offer to compromise the objection to the

subpoenas if the subpoena recipients were only required

to provide information on contacts with Defendants

within the State of Mississippi. Plaintiff refused this com-

promise and forced the Defendants to bring the matter to

the Court for resolution. The court conducted a telephone

conference on the Defendants’ emergency motion to

enforce the order governing discovery in which Plaintiff’s

B-13

counsel represented to the Court that he had a Missis-

sippi Supreme Court case supporting his position. After

having been directed by the Court to fax a copy of that

case to the Court and to counsel opposite, Plaintiff's

counsel instead faxed a number of cases which were not

as represented by counsel. Plaintiff’s counsel then filed a

response to the Defendants’ emergency motion in which

he argued, without authority, that the Defendants’ con-

tacts outside Mississippi with Mississippi corporations

would be relevant to sustain the court’s jurisdiction over

the Defendants.

This Court ultimately granted the Defendants’ emer-

gency motion in part by limiting the Plaintiff's discovery

from the thirteen non party witnesses to information

related to their contacts with the Defendants in Missis-

sippi. The Defendants offer to compromise this situation

previously was in line with what the Court ultimately

ordered. The Court is therefore of the Opinion that the

Plaintiff's counsels’ actions were unreasonable and vex-

atious in multiplying the proceedings in regard to this

item and finds that the Defendants are entitled to an

award of fees and costs incurred in connection with the

Emergency Motion to Enforce This Court’s Previous

Order of September 27, 1994.

3. The next item which the Court considers that the

Plaintiff’s counsel unreasonably and vexatiously multi-

plied the proceedings in this matter was when the Plain-

tiff’s counsel served fifty requests for production of

documents on the Defendants on January 20, 1995, which

was the last day by which discovery was to be completed.

The Defendants assert that out of an abundance of cau-

tion they responded to the discovery requests even

B-14

though they were not required to. The Court is therefore

of the opinion that the Plaintiff's counsel’s conduct in

serving the late discovery vexatiously-and unreasonably

multiplied the proceedings. However, the Court is further

of the opinion that defense counsel's choice to respond to

that discovery may have increased the costs beyond what

was reasonable. Therefore, even though the Court is of

the opinion that the Defendants are entitled to recover

certain expenses and costs for responding to the Plain-

tiff’s late discovery, the Court will make a final deter-

mination upon that after it receives the Defendants’

itemized statements of time and affidavits in support

thereof.

4. The next item which the Court feels that the

Plaintiff's counsel unreasonably and vexatiously multi-

plied the proceedings in this cause deals with the Plain-

tiff’s counsel’s motion to strike the responsive pleadings

filed by the Defendants and motion for entry of default

judgment filed on February 7, 1995. The Court is of the

opinion that the Plaintiff's ntotion was totally without

basis of law or fact and was nothing but a delay and

harassment technique perpetrated against the Defen-

dants. The Court is therefore of the opinion that the

Defendants are entitled to recover their expenses and

costs for responding to that motion.

The Court, having concluded that the Defendants are

entitled, as sanctions for Plaintiff's counsel’s vexatious

and unreasonable conduct in this litigation in the speci-

fics provided above, to a reasonable amount of attorney’s

fees and other expenses incurred by the Defendants in

defending against these specific acts of misconduct,

hereby orders that the Defendants’ and the Plaintiff’s

B-15

counsel shall attempt to agree upon the amount of the

above fees and expenses. However, prior to trying to

agree counsel shall initiate a telephone conference with

the Court which is to be held no later than ten (10) days

from the date of this Order. Mr. Ferrell has the respon-

sibility of scheduling this telephone conference with the

Court and with counsel opposite. If within fifteen (15)

days of this conference, the parties are unable to reach an

agreement, the Defendants shall file and serve an

itemized statement of such fees and expenses along with

supporting affidavits regarding reasonable hourly rates.

The Court would advise the parties that it is aware that

Defendants’ counsel has asserted entitlement to an hourly

fee of $300 to $310 per hour and that the Court will be

very hesitant to find such an hourly rate reasonable for

the type of jurisdictional discovery and motions filed in

this action. The Court has advised counsel of this so that

they may all be prepared to respond accordingly.

The Court is further aware that both parties have

requested oral argument on this motion. However, “the

right to a hearing . . . is limited to cases where a hearing

would assist the court in its decision.” Travelers Insurance

Co. v. St. Jude Hospital of Kenner, 38 F.3d 1414, 1418 (Sth

Cir. 1994). The Court is of the opinion that oral argument

or a hearing on the motion pending before the Court

would not assist in its resolution beyond the pleadings

and papers on file. The Court has already permitted the

parties to conduct conferences and arguments that under

the facts and law of this case were not justified.

Based on the Court’s awareness of the issues, and the

briefs already filed, the Court does not find that oral

argument would be helpful.

B-16

SO ORDERED AND ADJUDGED this the 28th day of

August, 1996.

/s/ Charles W. Pickering, Sr.

CHARLES W. PICKERING, SR.

UNITED DISTRICT JUDGE

C-1

APPENDIX C

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-60098

TONY B JOBE, Assignee of Air New Orleans Inc

Plaintiff - Appellant

ATR MARKETING, INC; AVIONS DE TRANSPORT

REGIONAL, (G.LE.); AEROSPATIALE, S.N.L.;

FINMECCANICA S.P.A., Individually and doing business

as Alenia (a division of Finmeccanica), also known as

Aeritalia S.P.A. and the Successor in the Interest of

Aeritalia; AEROSPATIALE, INC.; DEFENDANTS A-M

Defendants - Appellees

Appeal from the United States District Court for the

Southern District of Mississippi, Hattiesburg

ON PETITION FOR REHEARING

(Filed Mar. 24, 1999)

Before WISDOM, DUHE and DeMOSS, Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed

in the above case is denied

ENTERED FOR THE COURT:

/s/ John Minor Wisdom

United States Circuit Judge

D-1

APPENDIX D

FRAP 26. COMPUTATION AND EXTENSION OF TIME

(a) Computation of Time. In computing any period of

time prescribed or allowed by these rules, by an order of

court, or by any applicable statute, the day of the act,

event, or default from which the designated period of

time begins to run shall not be included. The last day of

the period so computed shall be included, unless it is a

Saturday, a Sunday, or a legal holiday, or, when the act to

be done is the filing of a paper in court, a day on which

weather or other conditions have made the office of the

clerk of the court inaccessible, in which event the period

runs until the end of the next day which is not one of the

aforementioned days. When the period of time prescribed

or allowed is less than 7 days, intermediate Saturdays,

Sundays, and legal holidays shall be excluded in the

computation. As used in this rule “legal holiday”

includes New Year’s Day, Birthday of Martin Luther

King, Jr., Washington’s Birthday, Memorial Day, Indepen-

dence Day, Labor Day, Columbus Day, Veterans Day,

Thanksgiving Day, Christmas Day, and any other day

appointed as a holiday by the President or the Congress

of the United States. It shall also include a day appointed

as a holiday by the state wherein the district court which

rendered the judgment or order which is or may be

appealed from is situated, or by the state wherein the

principal office of the clerk of the court of appeals in

which the appeal is pending is located.

(b) Enlargement of Time. The court for good cause

shown may upon motion enlarge the time prescribed by

these rules or by its order for doing any act, or may

- ee

D-2

permit an act to be done after the expiration of such time;

but the court may not enlarge the time for filing a notice

of appeal, a petition for allowance, or a petition for

permission to appeal. Nor may the court enlarge the time

prescribed by law for filing a petition to enjoin, set aside,

suspend, modify, enforce or otherwise review, or a notice

of appeal from, an order of an administrative agency,

board, commission or officer of the United States, except

as specifically authorized by law.

required or permitted to act within a prescribed period

after service of a paper upon that party, 3 calendar days

are added to the prescribed period unless the paper is

delivered on the date of service stated in the proof of

service.

FIFTH CIRCUIT RULE 26

26.1 Computing Time. Except for briefs and appendices, all

other papers, including petitions for rehearing, shall not be

timely unless they are actually received by the clerk within the

time fixed for filing. Briefs and appendices shal! be deemed filed

on the day dispatched to the clerk by a third-party commercial

carrier for delivery within 3 calendar days, or on the day of

mailing if the most expeditious form of delivery by mail is

used. The additional 3 days after service by mail, or after

delivery to a commercial carrier for delivery within 3 calendar

days as referred to in Fed. R. App. P. 26(c), applies only to

matters served by a party and not to filings with the clerk of

such matters as petitions for rehearing under Fed.R.App. P. 40,

suggestions for rehearing en banc under Fed. R. App. P. 35,

and bills of costs under Fed. R. App. P. 39.

D-3

26.2 Extensions of Time. The court's policy requires the

timely filing of all papers within the period of time allowed by

the rules, without granting extensions of time, except for good

cause shown. Failure to process appeals timely will cause their

dismissal for want of prosecution, without further notice,

under the provisions of 5th Cir. R. 42. If the right to file a reply

brief is waived, parties or counsel should immediately notify

the clerk to expedite submission of the case to the court.

FRAP 31. FILING AND SERVICE OF A BRIEF

(a) Time for Serving and Filing Briefs. The appellant

shall serve and file a brief within 40 days after the date

on which the record is filed. The appellee shall serve and

file a brief within 30 days after service of the brief of the

appellant.. The appellant may serve and file a reply brief

within 14 days after service of the brief of the appellee,

but, except for good cause shown, a reply brief must be

filed at least 3 days before argument. If a court of appeals

is prepared to consider cases on the merits promptly after

briefs are filed, and its practice is to do so, it may shorten

the periods prescribed above for serving and filing briefs,

either by rule for all cases or for classes of cases, or by

order for specific cases.

(b) Number of Copies to Be Filed and Served. Twenty-

five copies of each brief must be filed with the clerk, and

two copies must be served on counsel for each party

separately represented unless the court requires the filing

or service of a different number by local rule or by order

in a particular case. If a party is allowed to file type-

written ribbon and carbon copies of the brief, the original

and three legible copies must be filed with the clerk, and

D-4

one copy must be served on counsel for each party sep-

arately represented.

fails to file a brief within the time provided by this rule,

or within the time as extended, an appellee may move for

dismissal of the appeal. If an appellee fails to file a brief,

the appellee will not be heard at oral argument except by

permission of the court.

FIFTH CIRCUIT RULE 31

31.1 Briefs - Number of Copies. Only 7 copies of briefs shall

be filed in all cases.

31.2 Briefs — Time for Filing Briefs of Intervenors or

Amicus Curiae. In order to provide for maximum utilization

of the options permitted by Fed. R. App. P. 28(i), the time for

filing the brief of the intervenor or amicus is extended until 15

days after the filing of the principal brief of the party supported

by the intervenor or amicus. For purposes of Fed. R. App. P. 31

(a), the time for filing the next brief shall run from that date.

31.3 Briefs —- Time for Mailing or Delivery to a Commer-

cial Carrier. Appellant's brief must be sent to the clerk not

later than 40 days after the date of the briefing notice. Pur-

suant to Fed. R. App. P. 26(c), appellee has 33 days from the

date of the certificate of service to place the brief in the mail or

to give it to a third-party commercial carrier for delivery

within 3 calendar days. This rule may not be combined with

the additional time provisions of Fed. R. App. P. 26(c) to give

the appellee 36 days to file a brief. The certificate of service

required by Fed R. App. P. 25(d) must be shown at the

conclusion of the brief and must be dated. See 5th Cir. R. 39.2

D-5

for limitations on recovery of certain mailing and commercial

delivery costs.

31.4 Briefs — Time for Filing Briefs of Parties.

31.4.1 General Provisions. The court expects briefs to be filed

timely and without extensions in the vast majority of cases. No

extensions are automatic, even where the request is unopposed.

Any requests for extensions — including initial extensions and

extensions that can be granted by the clerk — should be made

sparingly. No extension can be granted without good cause

shown as required by Fed. R. App. P.26(b), or without meeting

the additional requirements contained in the Sth Cir. Rules.

(a) A request for extension should be made as soon as it is

reasonably possible to foresee the need for the extension. The

request shall be received by the clerk at least 7days before the

due date (including Saturdays, Sundays, and holidays as pro-

vided in Fed. R. App. P. 26(a)), unless the movant demon-

strates, in detail, that the facts that form the basis of the

motion either did not exist earlier or were not, or with due

diligence could not have been, known earlier.

(b) Before requesting an extension, the movant must contact

all other parties to determine whether the request is opposed.

Movants should request only as much time as is absolutely

needed. The pendency of a motion for extension does not toll

the time for compliance.

31.4.2 Grounds for Extensions. As justification for extensions,

generalities, such as that the purpose of the motion is not for

delay or that counsel is too busy, are not sufficient. Grounds

that may merit consideration for extensions are, without lim-

itation, the following, which must be set forth if claimed as a

D-6

reason in any motion for a Level 2 or Level 3 extension (as

defined in 5th Cir. R. 31.4.3):

(a) Engagement of counsel in other litigation, provided such

litigation is identified by caption, number, and court, and there

is set forth:

(1) A description of any effort taken to defer the other litiga-

tion and of any ruling thereon;

(2) An explanation of why other litigation should receive

priority over the case at hand; and,

(3) Other relevant circumstances, including why other asso-

ciated counsel cannot prepare the brief or relieve the movant's

counsel of the other litigation.

(b) The matter is so complex that an adequate brief cannot

reasonably be prepared when due.

granted, in which event the nature of the hardship must be set

forth in detail.

31.4.3 Levels of Extensions. There are three levels of exten-

sions: a Level 1 extension of 1-30 days from the original due

date; a Level 2 extension of 31-60 days from the original due

date; and a Level 3 extension of more than 60 days from the

original due date.

31.4.3.1 Level 1 Extensions. The clerk is authorized to grant,

deny, or take other appropriate action for the court on unop-

posed Level 1 extensions. The court prefers that the request be

made by telephone, but it may be by written motion or letter.

When making the request, the movant must explain what good

cause exists for the extension. If the extension is granted by

telephone, the movant shall immediately send a confirming

D-7

letter to the clerk, with copies to all parties. Instead of acting

on the request, the clerk may refer it to the court.

If the request is opposed, it shall be made only by written

motion setting forth why there is good cause. The motion shall

state the initial due date, whether any other extension has been

granted, the length of the requested extension, and which

parties have expressed opposition. Opposed extensions may be

acted upon only by the court.

31.4.3.2 Level 2 Extensions. The clerk is authorized to grant,

deny, or take other appropriate action for the court on unop-

posed Level 2 extensions. The request must be made by written

motion, with copies to all parties, stating the initial due date,

whether any other extension has been granted, the length of the

requested extension, and whether the motion is opposed.

More than ordinary good cause is required for a Level 2

extension. The movant must demonstrate diligence and sub-

stantial need and must show in detail what special circum-

stances exist that make a Level 1 extension insufficient. Instead

of acting on the motion, the clerk may refer it to the court.

Opposed extensions may be acted upon only by the court.

31.4.3.3 Level 3 Extensions. Level 3 extensions shall be acted

upon only by the court and are greatly disfavored. They will be

granted only under extraordinary circumstances and for the

most compelling reasons.

The motion shall state the initial due date, whether any other

extension has been granted, the length of the requested exten-

sion, and whether the motion is opposed. The motion shall

disclose facts that establish that with due diligence, and giving

priority to the preparation of the brief, it is not reasonably

possible to file the brief timely. Factual statements shall be set

D-8

forth with specificity. In cases in which a party may be in

custody, the motion must state the custodial status, including

the status of any bail.

31.4.4. Extensions for Reply Briefs. All extensions of time for

filing reply briefs are greatly disfavored, as the court assumes

that the parties have had ample opportunity to present their

arguments in their initial briefs and that extensions for reply

briefs only delay submission of the case to the court.

E-1

APPENDIX E

FRAP 34. ORAL ARGUMENT

(a) In General; Local Rule. Oral argument shall be

allowed in all cases unless pursuant to local rule a panel

of three judges, after examination of the briefs and

record, shall be unanimously of the opinion that oral

argument is not needed. Any such local rule shall provide

any party with an opportunity to file a statement setting

forth the reasons why oral argument should be heard. A

general statement of the criteria employed in the admin-

istration of such local rule shall be published in or with

the rule and such criteria shall conform substantially to

the following minimum standard:

Oral argument will be allowed unless

(1) the appeal is frivolous; or

(2) the dispositive issue or set of issues has been

recently authoritatively decided; or

(3) the facts and legal arguments are adequately pre-

sented in the briefs and record and the decisional process

would not be significantly aided by oral argument.

(b) Notice of Argument; Postponement. The clerk shall

advise all parties whether oral argument is to be heard,

and if so, of the time and place therefor, and the time to

be allowed each side. A request for postponement of the

argument or for allowance of additional time must be

made by motion filed reasonably in advance of the date

fixed for hearing.

I Ray AY Doran BEG ne bgt EEL OD CLEFT RIA PELE LOADING NL OIL IL YES = 8

E-2

entitled to open and conclude the argument. Counsel may

not read at length from briefs, records, or authorities.

(d) Cross and Separate Appeals. A cross or separate

appeal shall be argued with the initial appeal at a single

argument, unless the court otherwise directs. If a case

involves a cross appeal, the party who first files a notice

of appeal, or in the event that the notices are filed on the

same day the plaintiff in the proceeding below, shall be

deemed the appellant for the purpose of this rule unless

the parties otherwise agree or the court otherwise directs.

If separate appellants support the same argument, care

shall be taken to avoid duplication of argument.

(e) Non-appearance of Parties. If the appellee falls to

appear to present argument, the court will hear argument

on behalf of the appellant, if present. If the appellant fails

to appear, the court may hear argument on behalf of the

appellee, if present. If neither party appears, the case will

be decided on the briefs unless the court shall otherwise

order.

(f) Submission on Briefs. By agreement of the parties, a

case may be submitted for decision on the briefs, but the

court may direct that the case be argued.

(g) Use of Physical Exhibits at Argument; Removal. If

physical exhibits other than documents are to be used at

the argument, counsel shall arrange to have them placed

in the court room before the court convenes on the date of

the argument. After the argument counsel shall cause the

exhibits to be removed from the court room unless the

court otherwise directs. If exhibits are not reclaimed by

counsel within a reasonable time after notice is given by

E-3

the clerk, they shall be destroyed or otherwise disposed

of as the clerk shall think best.

FIFTH CIRCUIT RULE 34

34.1 Docket Control. In the interest of docket control, the

chief Judge may from time to time appoint a panel or panels to

review pending cases for appropriate assignment or disposition

under this rule or any other rule of this court.

34.2 Oral Arguments. Oral argument shall be allowed in ail

cases except those unanimously determined by a three-judge

panel of the court to fall in I of the 3 categories specified by

Fed. R. App. P. 34(a). Those cases will be placed on the

summary calendar for decision without oral argument. Those

cases to be orally argued will be calendared by the clerk based

upon the court's calendaring priorities. Counsel for each party

must present oral argument unless excused by the court for

good cause shown. The oral argument docket will show the

time the court has allotted for each argument. If counsel for all

parties indicate pursuant to paragraph .3 of this rule that oral

argument is not necessary, the case will be governed by Fed. R.

App. P. 34(f).

34.3 Submission Without Argument. A party who desires to

waive oral argument in a case noticed for oral argument must

file a motion for permission to waive in advance of the date set

for hearing.

34.4 Number of Counsel To Be Heard. Not more than 2

counsel will be heard for each party on the argument of a case,

and the time allowed may be apportioned between counsel in

their discretion.

E-4

34.5 Expediting Appeals. The court may, on its own motion

or for good cause shown on motion of either party, advance any

case for hearing, and prescribe an abbreviated briefing sched-

ule.

34.6 Continuance of Hearing. After a case has been set for

hearing, it may not be continued by stipulation of the parties

or their counsel, but only by an order of the court on good

cause shown. Engagement of counsel in other courts will not

be considered good cause.

34.7 Recording of Oral Arguments. No cameras, tape

recorders, or other equipment designed for the recording or

transmission of visual images or sound may be present or used

during oral argument; provided, however, that with the

advance approval of the presiding judge, counsel may arrange,

at their own expense, for a qualified court reporter to be

present to record and transcribe oral argument. If it is the

usual practice of such court reporter to do so, the reporter may

make and utilize a sound recording for the sole purpose of

preparing an accurate transcript, then must immediately

destroy or erase the recording without making it available to

counsel, a party, or any other person for any purpose. The

court records oral argument for its exclusive use and does not

make the tapes, or copies or transcripts thereof available to

counsel, the parties, or any other person.

34.8 Criminal Justice Act Cases. The court expects court-

appointed counsel to present oral argument. Presentation of

oral argument by an associate attorney not appointed under

the act will only be allowed under the most pressing and

unusual circumstances, upon advance authorization.

34.9 Checking In with Clerk’s Office. As provided on the

calendar, on the day of hearing counsel should first check in

E-5

with the clerk 30 minutes in advance of the convening of court

to confirm with the courtroom deputy the name of the attorney

or attorneys who will present argument for each party and how

the argument time will be divided between opening and rebut-

tal. All counsel in the fourth and fifth cases on the docket heard

in New Orleans have the privilege of checking in by telephone,

but must report in person to the clerk's office within one hour

after court convenes. On the last day of the New Orleans

session, all attorneys must report in person to the clerk's office

30 minutes before court convenes.

34.10 Submission Without Argument. When a case ts placed

on the oral argument calendar, a judge of the court has deter-

mined that oral argument would be helpful in that particular

case. Therefore, requests of the parties to waive oral argument

are not looked upon with favor, and counsel may be excused

only by the court for good cause shown. See 5th Cir. R. 34.3.

If appellant fails to appear in a criminal appeal from convic-

tion, the court will not hear argument from the United States.

34.11 Time for Oral Argument. The time for oral argument

will be indicated on the printed calendar. Most cases are

allowed 20 minutes to the side. The word “side” refers to

parties in their position on appeal. Where in doubt, the clerk's

office should be consulted.

34.12 Additional Time for Oral Argument. Additional time

for oral argument is sparingly permitted. Requests for addi-

tional time for oral argument should be set forth in a motion or

letter to the clerk filed well in advance of the oral argument.

34.13 Calling the Calendar. Usually the court will not call

the calendar unless there are some special problems requiring

E-6

attention. The court proceeds to hear the cases in the order in

which they appear on the calendar.

* * *

F-1

APPENDIX F

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-60098

TONY B JOBE, Assignee of Air New Orleans Inc

Plaintiff - Appellant

ATR MARKETING, INC; AVIONS DE TRANSPORT

REGIONAL, (G.LE.); AEROSPATIALE, S.N.L;

FINMECCANICA S.P.A., Individually and doing business

as Alenia (a division of Finmeccanica), also known as

Aeritalia S.P.A. and the Successor in the Interest of

Aeritalia; AEROSPATIALE, INC.; DEFENDANTS A-M

Defendants - Appellees os

Appeal from the United States District Court for the

Southern District of Mississippi, Hattiesburg

(Filed Jul. 7, 1998)

ORDER:

IT IS ORDERED that motion of appellant to stay case

pending litigation in related case number 96-3396-R in the

Eastern District Court of Louisiana is denied.

F-2

IT IS FURTHERED ORDERED that motion of appel-

lant to extend time to file appellant's brief for 45 days, up

to and including August 20, 1998, is granted.

/s/ Robert M. Parker

ROBERT M. PARKER

UNITED STATES CIRCUIT JUDGE

G-1

APPENDIX G

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-60098

TONY B JOBE, Assignee of Air New Orleans Inc

Plaintiff - Appellant

ATR MARKETING, INC; AVIONS DE TRANSPORT

REGIONAL, (G.L.E.); AEROSPATIALE, 5S.N.L;

FINMECCANICA §S.P.A., Individually and doing business

as Alenia (a division of Finmeccanica), also known as

Aeritalia S.P.A. and the Successor in the Interest of

Aeritalia; AEROSPATIALE, INC.; DEFENDANTS A-M

Defendants - Appellees

Appeal from the United States District Court for the

Southern District of Mississippi, Hattiesburg

(Filed Aug. 3, 1998)

ORDER:

IT IS ORDERED that appellant's motion to withdraw

original brief and record excerpts, and to re-file within

the forty-five (45) days previously granted, or, until

August 20, 1998, is DENIED

/s/ Harold R. DeMoss, Jr.

HAROLD R. MoO. JR.

UNITED STATES CIRCUIT JUDGE

H-1

APPENDIX H

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-60098

TONY B JOBE, Assignee of Air New Orleans Inc

Plaintiff - Appellant

ATR MARKETING, INC; AVIONS DE TRANSPORT

REGIONAL, (G.L.E.); AEROSPATIALE, S.N.L;

FINMECCANICA S.P.A., Individually and doing business

as Alenia (a division of-Finmeccanica), also known as

Aeritalia S.P.A. and the Successor in the Interest of

Aeritalia; AEROSPATIALE, INC.; DEFENDANTS A-M

Defendants - Appellees

Appeal from the United States District Court for the

Southern District of Mississippi, Hattiesburg

(Filed Sep. 16, 1998)

Betore EMILIO M. GARZA, DeMOSS, and BENAVIDES,

Circuit Judges.

BY THE COURT:

'T IS ORDERED that appellant's motion for leave to

tile motion for clarification and reconsideration of this

Court's orders of July 7, 1998 and August 3, 1998 out of

time is GRANTED

H-2

IT IS FURTHERED ORDERED that appellant's

motion for clarification and reconsideration of this

Court’s orders of July 7, 1998 and August 3, 1998 is

DENIED

IT IS FURTHER ORDERED that appellant's motion

for an extension of time to file reply brief, to and includ-

ing September 9, 1998 is GRANTED

IT IS FURTHER ORDERED that appellant’s motion to

substitute the appellant’s brief on appeal is DENIED

/s/ EMG, HRD, FPB

I-1

APPENDIX I

IN THE UNiTED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-60098

TONY B JOBE, Assignee of Air New Orleans Inc

Plaintiff - Appellant

ATR MARKETING, INC; AVIONS DE TRANSPORT

REGIONAL, (G.LE.); AEROSPATIALE, S.N.L;

FINMECCANICA S.P.A., Individually and doing business

as Alenia (a division of Finmeccanica), also known as

Aeritalia S.P.A. and the Successor in the Interest of

Aeritalia; AEROSPATIALE, INC.; DEFENDANTS A-M

Defendants — Appellees

Appeal from the United States District Court for the

Southern District of Mississippi, Hattiesburg

(Filed Nov. 13, 1998)

ORDER:

IT IS ORDERED that appellant’s motion for leave to

file reply brief out of time is DENIED

/s/ Harold R. DeMoss, Jr.

HAROLD R. DeMOSS, JR.

UNITED STATES CIRCUIT JUDGE

J-1

APPENDIX J

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF MISSISSIPPI

HATTIESBURG DIVISION

TONY B. JOBE, ASSIGNEE OF

AIR NEW ORLEANS, INC. Plaintiff

V. CIVIL ACTION NO. 2:94cv18PS

ATR MARKETING, INC., ET AL) _ Defendants

COURT REPORTER’S TRANSCRIPT OF ORAL

ARGUMENT ON DEFENDANTS’ MOTION TO DISMISS

BEFORE HONORABLE CHARLES W. PICKERING, SR.

UNITED STATES DISTRICT COURT JUDGE

May 3, 1995

Hattiesburg, Mississippi

APPEARANCES:

MR. WAYNE E. FERRELL, JR.

P.O. Drawer 24448

Jackson, MS 39225-4448

MR. ORVIS A. SHIYOU, JR.

P.O. Box 310

Hattiesburg, MS 39403-0310

Representing the Plaintiff

EXHIBIT

—

[p. 2. APPEARANCES (CONT'D)

MR. GEORGE W. MILLER

555 Thirteenth St., N.W.

Washington, D.C. 20004

J-2

MR. ERIK MARTIN LOWREY

P.O. Box 485

Hattiesburg, MS 39403

Representing the Defendants

ALSO PRESENT: Mr. Tony B. Jobe, Plaintiff

Ms. Tammy Rogers, Secretary

COURT REPORTER:

Margaret A. Kinchen, RPR-CM

701 N. Main Street, Room 253

Hattiesburg, MS 39401

(601) 583-4383

+ * *

[p. 31] THE COURT: Let me ask you why did

you all file affidavits that y’all were doing no business in

the State of Mississippi when you were doing millions of

dollars of business in the State of Mississippi?

MR. MILLER: Your Honor, that affidavit was

filed. It was believed to be true at the time it was filed.

We later discovered it was erroneous. As soon as we

discovered it, we advised Mr. Ferrell of that information.

THE COURT: But that was after he had issued

subpoenas to a large number of companies?

MR. MILLER: That’s true. We had discovered

the information before he issued the subpoena. He had

served answers to interrogatories. I had directed the cli-

ent —

THE COURT: You had discovered it before he

served the subpoenas?

MR. MILLER: Yes, sir.

J-3

THE COURT: But you did not reveal it to him

until after he served the subpoenas?

MR. MILLER: Because he had served interroga-

tories that called for specific information about those

contracts, and we were in the process of gathering that

information. As soon as we got it, we supplemented our

answers to interrogatories.

THE COURT: But in the meantime, he had

issued those subpoenas which insured he was going to

get it.

MR. MILLER: That is true. In the meantime -

[p. 32] THE COURT: Mr. Miller, | take very

seriously filing affidavits that ain’t true.

MR. MILLER: Your Honor, no more serious

than I. I couldn’t agree with you more. That’s absolutely

right. I take it very seriously.

THE COURT: Somebody somewhere were will-

ing to sign something that they either were careless and

they didn’t know was false or that they deliberately knew

it was false.

MR. MILLER: Well, they didn’t deliberately

know it was false. I can assure you of that, Your Honor.

THE COURT: Then they had to be careless.

MR. MILLER: They were caretess. I agree with

Your Honor. It was a mistake.

THE COURT: You’re an officer of the court. Did

you know that?

J-4

MR. MILLER: I did not know it. As soon as |

became aware of these facts, I -

THE COURT: How long was it after you

became aware of it before you let Mr. Ferrell know about

it?

MR. MILLER: Within ten days or two weeks,

Your Honor.

THE COURT: And it was during that interval

that these subpoenas were issued?

MR. MILLER: That is correct. That is correct.

But the information had come to the client’s attention

before that. [p. 33] The client advised me. I told the client,

Look, find out this, that and the other thing. These were

all things that had been asked for in interrogatories that

Mr. Ferrell had served. I wanted to be able to supplement

our answers to interrogatories. It took them a little while

to get that information as soon as they got it, we supple-

mented our answers to interrogatories. We produced the

contracts in question. I regret that the initial declaration

turned out to be incorrect, but there was no intention to

mislead the Court. As soon as we became aware of the

true facts, we cofrected the filing with the court. But |

apologize for the initial filing.

THE COURT: All right. You may make your

rebuttal.

MR. MILLER: Your Honor, one question ‘was

raised with respect to the anticipated place of delivery

under the alleged contract. The alleged contract is Exhibit

8 to the defendants’ reply to plaintiff's amended response

J-5

to defendants’ motion to dismiss. Exhibit 8 is the pro-

posal dated December 5, 1986, made by Avions De Trans-

port Regional to Air New Orleans. And in the very first

paragraph on page 1, it is stated, “Subsequent delivery of

the aircraft being implemented in Toulouse (France).”

There is no dispute, Your Honor, that delivery was con-

templated to be made in France in this case, not in New

Orleans or in Mississippi as was perhaps suggested inad-

vertently in Mr. Ferrell's argument.

Secondly, with respect to the cases that-Mr. Ferrell

drew

* * *

[p. 38] CERTIFICATE OF COURT REPORTER

I, Margaret A. Kinchen, CSR, RPR-CM, Official Court

Reporter for the United States District Court for the

Southern District of Mississippi, appointed pursuant to

the provisions of Title 28, United States Code, Section

753, do hereby certify that the foregoing is a correct

transcript from the record of proceedings in the above-

entitled and numbered cause.

I further certify that the transcript fees and format

comply with those prescribed by the Court and the Judi-

cial Conference of the United States.

/s/ Margaret A. Kinchen

MARGARET A. KINCHEN, RPR-CM

OFFICIAL COURT REPORTER

J-6

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

HATTIESBURG DIVISION

TONY B. JOBE, Assignee of

AIR NEW ORLEANS, INC.,

Plaintiff,

v. No. 2:94-CV-18PS

ATR MARKETING, INC., AEROSPATIALE,

AERITALIA, and AVIONS de TRANSPORT

REGIONAL (G.LE.),

Defendants.

DEFENDANTS’ MOTION FOR SANCTIONS

AGAINST PLAINTIFF’S COUNSEL

(Filed May 24, 1995)

Pursuant to this Court’s inherent power, 28 U.S.C.

§ 1927, and the Mississippi Litigation Accountability Act,

Defendants hereby move for sanctions against Plaintiff's

counsel, including an award of the reasonable attorneys’

fees and expenses incurred by Defendants in this matter.

Prior to filing the Complaint, Plaintiff’s counsel

failed to conduct any investigation into whether this

Court had jurisdiction over Defendants. After taking dis-

covery from Defendants, Plaintiff’s counsel still lacked

any factual support\for the exercise of jurisdiction over

Defendants, yet he continued to argue that jurisdiction

was proper.

J-7

In addition, throughout this litigation, Plaintiff's

counsel has advanced spurious legal theories, made fac-

tual representations without first conducting an investi-

gation into the accuracy of those representations,

misrepresented facts to the Court, made reckless allega-

tions of impropriety against Defendants and their coun-

sel, engaged in unreasonable and vexatious discovery,

and violated Court Orders.

By reason of such conduct, which is more fully set

forth in the attached Memorandum of Authorities in Sup-

port of Defendants’ Motion for Sanctions Against Plain-

tiff’s Counsel, Defendants ask the Court to award to

them, as sanctions against Plaintiff's counsel, an amount

equal to the attorneys’ fees and expenses reasonably

incurred by Defendants in this action.

Pursuant to Local Rule 8(f), counsel for Defendants

requests oral argument on this motion.

Respectfully submitted,

OF COUNSEL:

George W. Miller,

PHV No. 40715

James J. Moore,

PHV No. 40716

HOGAN & HARTSON

L.LF.

555 Thirteenth Street, N.W.

Washington, D.C. 20004

202/637-6575

Dated: May 24, 1995

/s/ Erik M. Lowrey

Erik M. Lowrey

ERIK M. LOWREY, P.A.

214 West Pine Street

Hattiesburg, Mississippi

39403-0485

601/582-5015 a

State Bar. No. 1466

Attorney for Defendants

J-8

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

HATTIESBURG DIVISION

TONY JOBE, Assignee of

AIR NEW ORLEANS, INC. PLAINTIFF

VERSUS 2:94-CV-18PS

ATR MARKETING, INC.,

AEROSPATIALE

AERITALIA, and

AVIONS de TRANSPORT

REGIONAL (G.LE.) DEFENDANTS

ORDER ~

(Filed Sep. 27, 1994)

This matter is before the Court on defendants’ motion

to dismiss, plaintiff's motion for leave to amend complaint

and for status conference to establish limited discovery

schedule regarding jurisdictional issues. The Court, having

heard from counsel for all parties and being fully advised

in the premises, finds as follows, to-wit;

That in the interest of judicial economy and commen-

surate with the parties’ interest in concluding this matter

as expeditiously as possible, the plaintiff should be

allowed to amend his complaint and then be allowed to

conduct limited discovery directed at only the jurisdic-

tional issues addressed in defendants’ motion to dismiss

before the Court rules thereon.

IT IS THEREFORE ORDERED;

That plaintiff shall file his amended complaint by

October 7, 1994;

That the plaintiff shall submit to the defendants a

particularized statement of the subject matter of the

]-9

discovery needed to respond to defendants’ motion to

dismiss by October 4, 1994;

That the parties are to agree on the Subject matter of

the discovery needed for the plaintiff to respond to

defendants’ motion to dismiss by October 12, 1994, and

that if the parties cannot agree on such subject matter,

they shall submit simultaneous briefs on the issue to the

Court by October 17, 1994;

That the parties shall conduct any of the limited

discovery agreed upon by the parties by December 12,

1994; or within sixty (60) calendar days of the Court order

establishing the permitted discovery if necessary for the

Court to enter such an order in the event the parties are

unable to agree on the permitted discovery;

That within five (5) calendar days after the permitted

discovery is completed, the plaintiff shall submit any

supplemental response he wishes to defendants’ motion

to dismiss;

That within five (5) working days after the plaintiff

submits any supplemental response to defendants’

motion to dismiss he chooses, the defendants shall sub-

mit any supplemental rebuttal they wish in support of

their motion to dismiss. i ~

SO ORDERED AND ADJUDGED this the 27th day of

September, 1994.

/s/ Charles W. Pickering, Sr.

CHARLES W. PICKERING, SR.

UNITED STATES

DISTRICT JUDGE

J-10

HOGAN & HARTSON

L.L.P.

COLUMBIA SQUARE

555 THIRTEENTH STREET. NW

WASHINGTON DC 20004-1109

(202) 637-5600

[Names and Cities Omitted In Printing]

October 11, 1994

BY TELECOPY AND FIRST CLASS MAIL

Wayne E. Ferrell, Jr., Esq.

Ferrell & Hubbard

405 Tombigbee Street

Jackson, Mississippi 39201

Re: Jobe v. ATR Marketing Inc., et al.,

No. 2:94-CV-18PS, U.S.D.C. S.D. Miss.

Dear Wayne:

Pursuant to Judge Pickering’s September 27, 1994

Order, I called today to discuss “the subject matter of the

discovery needed for the plaintiff to respond to defen-

dants’ motion to dismiss.” After I had outlined defen-

dants’ proposal, you asked that I reduce our proposal to

writing and send it to you with a copy to Terry O'Reilly.

This letter is in response to your request. —

Frankly, I was surprised and disappointed when |

received plaintiff's “Particularized Statement of Subject

Matter of Discovery.” It may be that we have a difference

of views as to the meaning of the word “particularized”

in this context, but plaintiff’s statement seemed to me to

be “partizularized” in name only. In fact, the requests —

J-11

and I have approached the twenty-eight numbered para-

graphs initially as interrogatories - appear to be broader,

more onerous and less “particularized” than the interrog-

atories that plaintiff served on defendants just prior to

the July 20, 1994 case management conference. Having

reviewed those interrogatories, Magistrate Judge Sumner

concluded in his Order of the same date “that discovery

in this cause should be stayed pending resolution of

defendants’ pending motion to dismiss by the United

States District Judge.” Similarly, in his July 27, 1994 Case

Management Plan Order, Magistrate Judge Sumner

stated: “All discovery shall be held in abeyance until

pending motions are ruled upon at which time a schedul-

ing order shall be entered.” Plaintiff's so-called “partic-

ularized statement” seems to me to be the antithesis of a

showing, as described by Magistrate Judge Sumner, of

“an adequate and specific need for particularized discov-

ery related to the issues which are the subject of the

pending motion.” Similarly, Judge Pickering’s Order of

September 27 contemplated that the parties should agree

upon “limited discovery.”

Accordingly, in an effort to reach agreement on a fair,

reasonable and expeditious procedure for developing the

information needed for a resolution of defendants’

motion within the period provided for by the Order of

September 27, we propose tHe following:

1) Plaintiff will take telephonic depositions of some

or all of the individuals who have submitted Declarations

in support of defendants’ motion to dismiss. Defendants

will make the declarants available for such depositions

upon reasonable notice and will also provide beforehand

the biographical information described in {{ 17-21 of

J-12

plaintiff's “particularized statement.” If the deposition

testimony identifies any areas where it appears that fur-

ther particularized discovery would be fruitful, the par-

ties will conduct such discovery or defendants will

simply provide the information in question.

2) Beyond providing the biographical information

and making the declarants available for telephonic depo-

sitions, defendants will provide information by way of

answers to interrogatories 4tesponsive to | 9 (limited to

the corporate history of the defendants, i.e., not including

information relating to parents, subsidiaries and affili-

ates); { 14 (with respect to suits brought against any

defendant in Mississippi); and | 15 (with respect to dis-

tributors appointed in Mississippi).

3) Defendants will also respond by way of answers

to interrogatories to 4] 8, 10, 12, 16, and 22-27 to the

extent that such paragraphs seek information relating to

contacts with Mississippi. We do not see how information

relating to contacts with other states could be relevant to

the question whether there exists a basis for the exercise

of personal jurisdiction over the defendants in Missis-

sippi, although we are open to persuasion on the point.

4) Once the foregoing discovery is completed, the

parties will again consider the necessity vel non for

defendants to respond to any of the remaining para-

graphs of plaintiff's “particularized statement.”

To the degree you feel that our proposal as set forth

above is inadequate to permit discovery of some relevant

material, I would be happy to discuss with you in more

J-13

detail our present, specific concerns about the scope,

relevance and duplicative character of the remaining

paragraphs of plaintiff's “particularized statement.”

Because Judge Pickering’s Order enjoins the parties

to agree on the scope of jurisdictional discovery by Octo-

ber 12 or submit briefs by October 17, | would appreciate

hearing from you promptly.

Since the court’s October 7, 1994 deadline for plain-

tiff to file an amended compiaint has come and gone

without service of such a pleading on defendants, |

assume plaintiff has decided not to file an amended com-

plaint.

Sincerely,

/s/ George

George W. Miller

ce: Erik M. Lowrey, Esq.

Terry O'Reilly, Esq.

j-14

EXHIBIT “B”

HOGAN & HARTSON

L.L.P.

COLUMBIA SQUARE

555 THIRTEENTH STREET NW

WASHINGTON DC 20004-1109

(202) 637-5600

[Names and Cities Omitted In Printing]

November 21,' 1994

BY FEDERAL EXPRESS

Wayne E. Ferrell, Jr., Esq.

Ferrell & Hubbard

405 Tombigbee Street

Jackson, Mississippi 39201

Re: Jobe v. ATR Marketing Inc., et al.,

No. 2:94-CV-18PS, U.S.D.C. S.D. Miss.

Dear Wayne:

Enclosed please find the information we promised in

our agreement on the scope of discovery with respect to

personal jurisdiction. Specifically, I am enclosing a

Response to Certain Requests for Information Described

in Plaintiff's “Particularized Statement of Subject Matter

of Discovery” for defendants Aerospatiale, Inc., ATR

Marketing, Inc., Avicns de Transport Regional, G.I.E., and

Aerospatiale, S.N.I. Pursuant to our agreement, each

response contains information by way of answers to

interrogatories responsive to {J 8-10,12, 14-16, and 22-27

of plaintiff's “particularized statement.” The responses of

defendants Aerospatiale, Inc. and ATR Marketing, Inc.

have been executed by an appropriate officer. The

responses of Avions de Transport Regional, G.I.E. and

J-15

Aerospatiale, S.N.I. have not yet been executed, but the

substance of these responses has been approved for each

entity by an appropriate officer. We recently sent origi-

nals of these documents to France for execution, and we

will forward to you copies of executed responses for

these two entities as soon as we receive them. In addition,

we are working on the response for defendant Finmec-

canica, S.p.A., and will forward that response to you as

soon as possible.

On ancther matter, you previously expressed a desire

to take the telephonic depositions of some or all of the

individuals who submitted Declarations in support of

Defendants’ Motion to Dismiss. However, we have heard

nothing from you regarding the scheduling of such depo-

sitions. As I stated in my October 11, 1994 letter, we are

willing to make these declarants available for such depo-

sitions upon reasonable notice. If you are still interested

in taking telephonic depositions of some or all of the

declarants, we would be happy to cooperate in schedul-

ing them within the sixty-day discovery period provided

for in Judge Pickering’s September 27, 1994 Order, which

ends in mid-December. Please let me know how you wish

to proceed.

Sincerely,

/s/ George

George W. Miller

Enclosures

cc: Erik M. Lowrey, Esq.

Terry O'Reilly, Esq.

J-16

Erik M. Lowrey, P.A.

Attorney at Law

214 West Pine Street

Hattiesburg, Mississippi 39403-0485

Mailing Address: Phone: 601-582-5015

P.O. Box 485 FAX: 601-582-5046

October 17, 1994

HAND DELIVERED

Judge Charles Pickering

P.O. Box 1896

Hattiesburg, MS 39401

RE: JOBE V. ATR MARKETING INC., et al.,

No. 2:94-CV-18PS, U.S.D.C. S.D. Miss.

Dear Judge Pickering

In accordance with Your Honor’s Order of September °

27, 1994 the parties have reached agreement on a pro-

gram of discovery to be conducted with respect to the

issues of personal jurisdiction. In so doing, they have

agreed to defer resolution of several contested matters

until completion of the agreed discovery. At that time, the

parties may be able to reach agreement on the contested

items in view of the nature of the discovery that will have

occurred by that time. If they are unable to do so, how-

ever, they would request leave to bring those contested

matters to the Court’s attention for resolution at that time

and prior to the conclusion of the 60 day period provided

for in the Court’s September 27 Order.

In view of their agreement, the parties do not plan to

file briefs today setting forth their positions on the

J-17

appropriate scope of discovery. We trust that the Court

will let the parties know if the foregoing mode of pro-

ceeding is in any way unsatisfactory to the Court.

Sincerely yours,

/s/ Erik

Erik M. Lowrey

cc: Wayne Ferrell, Esquire

Terry O'Reilly, Esquire

Al Shiyou, ‘Esquire

George Miller, Esquire

HOGAN & HARTSON

L.LP.

COLUMBIA SQUARE

555 THIRTEENTH STREET NW

WASHINGTON DC 20004-1109

(202) 637-5600

[Names and Cities Omitted In Printing]

October 14, 1994

BY TELECOPY AND FIRST CLASS MAIL

Wayne E. Ferrell, Jr., Esq.

Ferrell & Hubbard

405 Tombigbee Street

Jackson, Mississippi 39201

Re: Jobe v. ATR Marketing Inc., et al.,

No. 2:94-CV-18PS, U.S.D.C. S.D. Miss.

Dear Wayne:

Following up on our telephone conversation this

afternoon, I suggest that the joint letter to be sent to

Judge Pickering on Monday read as follows:

J-18

Dear Judge Pickering:

In accordance with Your Honor’s Order of

September 27, 1994, the parties have reached

agreement on a program of discovery to be con-

ducted with respect to the issue of personal

jurisdiction. In so doing, they have agreed to

defer resolution of several contested matters

until completion of the agreed discovery. At that

time, the parties may be able to reach agreement

on the contested items in view of the nature of

the discovery that will have occurred by that

time. If they are unable to do so, however, they

would request leave to bring those contested

matters to the Court's attention for resolution at

that time and prior to the conclusion of the 60-

day period provided for in the Court’s Septem-

ber 27 Order.

In view of their agreement, the parties do —

not plan to file briefs today setting forth their

positions on the appropriate scope of discovery.

We trust that the Court will let the parties know

if the foregoing mode of proceeding is in any

way unsatisfactory to the Court.

The “contested matters” to which reference is made

in the proposed joint letter to Judge Pickering are plain-

tiff’s claim of entitlement to the information described in

paragraphs 1 through 6 of plaintiff’s so-called “Partic-

ularized Statement” served October 4. The “program of

discovery to be conducted” refers to the proposal made

by defendants in my letter dated October 11, 1994.

Although I neglected to mention this matter when we

spoke on the phone this afternoon (for which I apolo-

gize), we would also propose that the parties agree that

defendants shall vrovide discovery in accordance with

J-19

their October 11 proposal for the period from 1985 to the

present, unless plaintiff’s “Particularized Statement” calls

for information covering a shorter period.

Please let me know if the foregoing is satisfactory to

you and Terry. If it is, I will ask Erik to hand-deliver the

agreed letter to Judge Pickering on Monday with copies

to ali other counsel.

Sincerely,

/s/ George

George W. Miller

cc: Erik M. Lowrey, Esq.

Terry O'Reilly, Esq.

J-20

IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF MISSISSIPPI

HATTIESBURG DIVISION

TONY JOBE, Assignee of

AIR NEW ORLEANS, INC.,

Plaintiff,

V. NO. 2:94-CV-18PS

ATR MARKETING, INC., AEROSPATIALE,

AERITALIA, and AVIONS de TRANSPORT

REGIONAL (G.LE),

Defendants.

AMENDED ORDER

(Filed Jan. 4, 1995)

This matter having come on for hearing on the joint

Motion of the parties to extend the limited jurisdictional}

discovery period and time for responding to Defendants’

Motion to Dismiss, and the Court having considered the

matter and being fully advised in the premises, finds that

the Motion is well taken and should be sustained.

IT IS, THEREFORE, ORDERED:

That the Order entered on the 27th day of September,

1994, be amended and the parties shall conduct any of the

limited discovery agreed upon by the parties by January

20, 1995.

That the Plaintiff shall file any response or supple-

mental response that he wishes to be filed to Defendants’

Motion to Dismiss by January 27, 1995; and

J-21

That the Defendants shall submit any supplemental

rebuttal they wish to file in support of their Motion to

Dismiss or in response to Plaintiff’s responses and/or

supplemental responses by February 3, 1995.

SO ORDERED AND ADJUDGED this the 4th day of

January, 1995.

/s/ Charles W. Pickering, Sr.

CHARLES W. PICKERING, SR.

UNITED STATES DISTRICT JUDGE

APPROVED AS TO SUBSTANCE AND FORM:

/s/ Wayne E. Ferrell, Jr.

Wayne E. Ferrell, Jr.

FERRELL & HUBBARD

405 Tombigbee Street

Jackson, Mississippi 39201

601/969-4700

/s/ Terry O'Reilly

Terry O'Reilly

O’REILLY & COLLINS

A Professional Corporation

2500 Sand Hill Road, Suite 201

Menlo Park, CA 94025

(415) 854-8350

Attorneys for Plaintiff

/s/ George W. Miller

George W. Miller, PHY No. 40715

James J. Moore, PHV No. 40716

HOGAN & HARTSON L.L.P.

555 Thirteenth Street, N.W.

Washington, D.C. 20004

202/637-6575

J-22

/s/ Erik M. Lowrey

Erik M. Lowrey

ERIK M. LOWREY, P.A.

214 West Pine Street

Hattiesburg, Mississippi 39403-0485

601/582-5015

State Bar No. 1466

Attorneys for Defendants

J-23

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

HATTIESBURG DIVISION

TONY JOBE, Assignee of

AIR NEW ORLEANS, INC.,

PLAINTIFF

VS. CIVIL ACTION NO. 2-94-CV-18(R)(S)

ATR MARKETING, INC., ET AL.

DEFENDANTS

NOTICE OF WITHDRAWAL OF SUBPOENA

AND SUBPOENA DUCES TECUM

(Filed Jan. 27, 1995)

Now comes the plaintiff, by and through his attor-

neys, and serves notice that he has this day withdrawn

the subpoena and subpoena duces tecum served upon

Beech Aerospace Services, Inc., on or about January 5,

1995. Beech Aerospace Services, Int., is excused from

complying with the subpoena and subpoena duces tecum.

Respectfully submitted,

TONY JOBE, Assignee of Air New

Orleans, Inc., Plaintiff

By: /s/ Wayne E. Ferrell, Jr.

Wayne E. Ferrell, Jr.,

His Attorney

J-24

CERTIFICATE OF SERVICE -

I, Wayne E. Ferrell, Jr., attorney for plaintiff, do

hereby certify that I have this day forwarded by United

States Mail, postage prepaid, a true and correct copy of

the above and foregoing Notice of Withdrawal to the

following attorneys:

George W. Miller, Esq.

Hogan & Hartson L.L.P.

Columbia Square

555 Thirteenth Street, N.W.

Washington, D.C. 20004-1109

Erick M. Lowrey, Esq.

214 West Pine Street

Hattiesburg, MS 39403-0485

This the 25th day of JANUARY, 1995.

/s/ Wayne E. Ferrell, Jr.

J-25

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

HATTIESBURG DIVISION

TONY JOBE, ASSIGNEE OF

AIR NEW ORLEANS, INC.,

PLAINTIFF

VS. CIVIL ACTION NO. 2:94-CV-18RS

ATR MARKETING, INC., ET AL.

DEFENDANTS

ORDER

(Filed Jan. 31, 1995)

This cause is before the Court on the Objection and

Motion to Quash or Modify Subpoena filed by Beech

Aerospace Services, Inc. (“Beech”). Having been

informed by counsel for Beech that the parties have

solved this matter, the Court finds that the Motion is

moot and should be denied.

IT IS THEREFORE ORDERED that the Objection and

Motion to Quash or Modify Subpoena filed by Beech

Aerospace Services, Inc. should be and hereby is denied

as moot.

SO ORDERED this the 30 day of January, 1995.

/s/ James C. Sumner

UNITED STATES MAGISTRATE JUDGE

J-26

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

HATTIESBURG DIVISION

TONY B. JOBE, Assignee of

AIR NEW ORLEANS, INC.,

PLAINTIFF

VS. CIVIL ACTION NO. 2:94cv18PS

ATR MARKETING, INC., AEROSPATIALE,

AERITALIA, AND AVIONS de TRANSPORT

REGIONAL (G.L.E.)

DEFENDANTS

AGREED ORDER WITHDRAWING

SUBPOENAS DUCES TECUM

(Filed Feb. 1, 1995)

THIS MATTER is before the Court on the objection of

the United States of America on behalf of the Department

of the Air Force and the Department of the Navy regard-

ing three deposition subpoenas duces tecum heretofore

issued to said departments at the instance of the plaintiff.

Pursuant to this Court’s January 24, 1995 Order on Objec-

tion of United States of America Relative to Subpoena

Duces Tecums Served on the Departments of the Navy

and Air Force by Plaintiff, the United States and the

plaintiff have conferred regarding said objection and

have agreed to the withdrawal of the subpoenas by plain-

tiff. This agreement is evidenced by the affixed signatures

of counsel for the United States and counsel for the

plaintiff. The Court, being otherwise fully advised in the

premises, finds that the agreement of the United States

J-27

and the plaintiff should be ratified, approved, and

adopted as the order of this Court. Accordingly, it is

ORDERED that, upon agreement of counsel for the

United States and for the plaintiff, the subpoenas duces

tecum issued in this action on January 6, 1995 at the

instance of the plaintiff for (1) Keesler Air Force, 81

TRW/JAA, 500 Fisher St., Suite 227, Keesler Air Force

Base, MS 39534, (2) U.S. Navy Constructing Office, Super-

vision of Shipbuilding, Conversion and Repairing, Pas-

cagoula, Mississippi 39568-7003, and (3) U.S. Navy, Naval

Air Station, Meridian, Mississippi be, and they are

hereby, withdrawn.

SO ORDERED on this, the 31st day of January, 1995.

/s/ Charles W. Pickering, Sr.

UNITED STATES DISTRICT JUDGE

_ AGREED TO:

/s/ Wayne E. Ferrell, Jr.

WAYNE E. FERRELL, JR.

Attorney for Plaintiff

/s/ Stephen R. Graben

STEPHEN R. GRABEN

Assistant United States Attorney

Attorney for United States of America

J-28

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

HATTIESBURG DIVISION

TONY B. JOBE, Assignee of

AIR NEW ORLEANS, INC. PLAINTIFF

VERSUS CIVIL ACTION NO. 2:94-CV-18PS

ATR MARKETING, INC.,

AEROSPATIALE, AERITALIA,

and AVIONS de TRANSPORT

REGIONAL (G.L.E.) DEFENDANTS

ORDER ON DEFENDANTS’ EMERGENCY MOTION

TO ENFORCE ORDER GOVERNING DISCOVERY

ON PERSONAL JURISDICTION AND TO QUASH

PLAINTIFF’S SUBPOENAS SERVED UPON

THIRTEEN NON-PARTIES

(Filed Jan. 24, 1995)

This matter comes before the Court on Defendants’

Emergency Motion to Enforce Order Governing Discov-

ery on Personal Jurisdiction and to Quash Plaintiff’s Sub-

poenas Served Upon Thirteen Non-Parties or in the

alternative to limit said subpoenas to the question of

whether or not Defendants conduct < business within the

State of Mississippi with any of said thirteen non-parties.

To rule on this Motion it is appropriate for the Court to

consider what has transpired in this case. This Court

previously entered an Order that due to the peculiar facts

and allegations of this particular case that discovery

should be limited to that discovery necessary for this

Court to rule on the Motion to dismiss for lack of per-

sonal jurisdiction. Plaintiff was given a limited time to

conduct this discovery. At about the time of the discovery

J-29

cutoff, the parties advised the Court that the Christmas

holidays were approaching and that they needed a slight

extension so that Plaintiff could complete his discovery.

Plaintiff represented to the Defendants, and on the basis

of such representation, Defendants joined in Plaintiff’s

request for this extension that Plaintiff needed to depose

certain representatives of Defendant. Based upon this

representation, the Court extended the discovery dead-

line. Shortly after the Court entered its Order, Plaintiff

noticed the depositions of and issued subpoenas to thir-

teen non-parties seeking discovery on matters clearly

beyond the limited discovery permitted by the Court’s

previous order.

After Defendants filed their Emergency Motion, this

Court conducted a telephone conference with counsel for

the parties. Even though counsel for the Defendants

expressed the feeling that Defendants had agreed to the

extension in discovery thinking that the only discovery

that was contemplated by the Plaintiff was the taking of

deposition of representatives of the Defendants, nev-

ertheless Defendants agreed that they did not object and

would agree to Plaintiff's discovery from these thirteen

non-parties of any information relating to business con-

ducted by such non-parties with the Defendants within

the State of Mississippi. The Court expressed to the Plain-

tiff that it was the Court’s impression without research

that this was all of the information that Plaintiff was

entitled to under the previous order of this Court and

that Plaintiff had demonstrated no justification for dis-

covery beyond that relating to business conducted by

Defendants within the State of Mississippi. Plaintiff rep-

reserited to the Court that he had a Mississippi Supreme

J-30

Court decision that held that if a Mississippi corporation

did business with a foreign corporation in another state

and that such business resulted in profits to the Missis-

sippi corporation and thus benefits to the stockholders of

that corporation that such evidence would be relevant on

the question of personal jurisdiction under the “doing

business” prong of the test for such determination. The

Court directed Plaintiff to forthwith immediately, ‘at

day fax such case to counsel for Defendants. Since the

Court had not had an opportunity to review this case and

since the parties were in agreement about the discovery

related to business done between the thirteen non-parties

and Defendants within the State of Mississippi and based

upon Plaintiff’s representation that he had a specific case

which he could show to the Defendants, it was the

Court’s opinion that the parties should be able to limit

the discovery of these thirteen non-parties after review-

ing and discussing this case and in view of the agreement

that had previously been reached. The parties have not

been able to reach agreement as it appears that Plaintiff

has insisted that it has a right to unlimited discovery with

these thirteen non-parties as reflected by the subpoena

duces tecums issued to these thirteen non-parties and it

further appears that Plaintiff did not produce to Defen-

dants the case which Plaintiff had represented to this

Court existed as Plaintiff did not cite any such authority

in its brief on this question now before this Court.

It further appears that Defendants provided to Plain-

tiff certain information relating to Defendants doing busi-

ness in Mississippi that it had not previously provided

and that this information was provided after Plaintiff

issued the subpoenas to the thirteen non-parties.

J-31

In view of the foregoing and in view and consider-

ation of the numerous conferences both in person and by

telephone that this Court has had with counsel for the

parties, the Court finds and orders as follows:

1. The discovery sought by the Plaintiff against the

thirteen non-parties is limited in accordance with the

Court’s previous order limiting discovery in this matter.

Plaintiff is entitled to discover from these thirteen non-

parties any information that these non-parties have rela-

tive to contacts and business that these thirteen non-

parties have conducted with the Defendants within the

State of Mississippi and no more.

2. Based on the past history of this case, this Court

feels it appropriate to remind the parties of that which

they should already know. It is inappropriate for either

party to take and maintain a position that is not reason-

ably well supported in fact and/or law. It is entirely

inappropriate and this Court takes a very dim view of

withholding information. The parties should be forth-

coming and candid with one another. In view of the fact

that these issues have arisen, the Court specifically calls

attention of the parties to Rules 16, 11 and 37. In the

future, if appropriate, if any party takes a position not

reasonably well-grounded in fact and/or law or if either

side withholds information from the other side, this

Court will impose sanctions under one or more of the

above rules. ~~

j-32

SO ORDERED AND ADJUDGED this the 24th day of

January, 1995.

/s/ Charles W. Pickering, Sr.

CHARLES W. PICKERING, SR.

UNITED STATES

DISTRICT JUDGE

J-33

IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF MISSISSIPPI

HATTIESBURG DIVISION

TONY JOBE, Individually and as

Assignee of AIR NEW ORLEANS, INC. PLAINTIFF

ATR MARKETING, INC.; CIVIL ACTION

AEROSPATIALE, S.N.L; NO. 2:94-CV-18PS

FINMECCANICA S.p.A., Individually

and d/b/a ALENIA (a division

of Finmeccanica) a/k/a

AERITALIA S.p.A. and the

Successor in the Interest of Aeritalia;

AVIONS de TRANSPORT

REGIONALE, (G.LE.); AEROSPATIALE, INC.;

and DEFENDANTS A through M DEFENDANTS

MOTION TO STRIKE RESPONSIVE PLEADINGS

FILED BY THE DEFENDANTS; MOTION FOR ENTRY

OF DEFAULT JUDGMENT OR, IN THE

ALTERNATIVE, MOTION FOR SANCTIONS

INCLUDING, BUT NOT LIMITED TO, DENIAL OF

DEFENDANTS’ MOTION TO DISMISS FOR FILING

FALSE DECLARATIONS UNDER PENALTY OF

PERJURY AND FOR DEFENDANTS’ FAILURE

TO PROVIDE INFORMATION AS

ORDERED BY THE COURT

REQUEST FOR ORAL ARGUMENT

(Filed Feb. 07, 1995)

Plaintiff, Tony Jobe, Assignee of Air New Orleans,

Inc., pursuant to Rules 11 and 37, Federal Rules of Civil

Procedure, the Mississippi Litigation Accountability Act

and other applicable laws, moves the Court for an Order

J-34

striking the responsive pleadings filed by the Defendants,

for an Order entering default judgment against the

Defendants and for an Order setting hearing on issue of

‘ Plaintiff’s damages; or, in the alternative, an Order

imposing other sanctions (including, but not limited to,

denial of Defendants’ Motions to Dismiss) against the

Defendants for submitting false Declarations under pen-

alty of perjury which were made either intentionally or

without reasonably diligent inquizy and effort to ascer-

tain that the statements contained therein were true; for

submitting false and misleading responses to Plaintiff's

Particularized Statement of Subject Matter of Discovery;

for Defendants’ attempted concealment of evidence; and /

or their careless disregard for their duties to use due

diligence in searching for relevant evidence and verifying

the accuracy of facts contained in the Response to Plain-

tiff’s Particularized Statement of Facts and asserted by

the Defendants’ representatives in depositions, which

evidence was not otherwise accessible to the Plaintiff.

Alternatively, Plaintiff moves the Court for an Order

compelling the Defendants to completely and fully

respond to the Particularized Statement of Subject Matter

of Discovery (without further withholding of informa-

tion); an Order compelling the Defendants to produce the

documents requested by the Plaintiff in Plaintiff's

Request for Production of Documents; and an Order

imposing sanctions against the Defendants including, but

not limited to, an Order compelling the Defendants to

produce all representatives who have been to the State of

Mississippi and/or have any knowledge about business

done in the State of Mississippi at their respective offices

in France and Italy, and compelling the Defendants to pay

J-35

Plaintiff’s attorneys reasonable fees and expenses

incurred in taking the depositions in France and Italy,

along with court reporter and interpreter fees and

expenses. Further, in the alternative, the Plaintiff moves

the Court for an Order extending the discovery deadline

(on the issue of jurisdiction) and the due date for Plain-

tiff’s Response to Defendants’ Motions to Dismiss until

after the Plaintiff receives the information concealed by

the Defendants. In support of Plaintiff’s Motion, the

Plaintiff would show unto the Court the following:

1. The Plaintiff filed his Complaint in the above

styled and numbered cause on or about January 12, 1994,

and propounded discovery to the Defendants on or about

July 14, 1994.

2. Defendants filed Motions to Dismiss asserting

lack of personal jurisdiction, untimeliness under the stat-

ute of limitations, and insufficiency of process as to

Defendants, Aerospatiale, Avions de Transport Regionale

(G.LE.), Aeritalia and Finmeccanica. Thereafter, Plaintiff

filed a Motion to Hold Defendants’ Motion to Dismiss in

Abeyance Pending Completion of Discovery or, Alter-

natively, for Additional Time to Respond to Motion to

Dismiss.

3. On July 20, 1994, United States Magistrate Judge,

The Honorable James C. Sumner, entered an Order deny-

ing Plaintiff's Motion and staying discovery pending res-

olution of Defendants’ Motion to Dismiss.

4. On or about September 25, 1994, the Court con-

sidered Defendants’ Motions to Dismiss, Plaintiff’s

Motion for Leave to Amend Complaint, and held a status

conference to establish a limited discovery schedule

J-36

regarding jurisdictional issues. The Court thereafter

entered an Order on September 27, 1994, ordering the

Plaintiff to file his Amended Complaint by October 7,

1994; the Plaintiff to submit to the Defendants the Partic-

ularized Statements of Subject Matter and Discovery; the

Plaintiff to respond to Defendants’ Motion to Dismiss;

and, the parties to agree upon the subject matter of and

conduct discovery. A copy of the September 27, 1994

Order is attached hereto as Exhibit “A” and incorporated

herein by reference.

5. The deadlines contained in the Order entered on

September 27, 1994 were extended by agreement of the

parties. A copy of that Order dated January 4, 1995 is

attached hereto as Exhibit “B” and incorporated herein by

reference.

6. Prior to entry of the Court’s September 27, 1994

Order, the Defendants, apparently believing that the

Court was not going to permit discovery on the issue of

in personam jurisdiction, caused to be filed Declarations

under penalty of perjury of five (5) individuals, Thierry

Tuot, Alain Brodin, Greggory Bradford, Roberto Camiz

and Joel Le Breton. Some of the Declarations were false

and Defendants either knew that the Declarations were

false or should have known that they were false at the

time that they were made and filed with the Court.

Copies of those Declarations are attached hereto as

Exhibits “C” (Tuot), “D” (Brodin), “E” (Bradford), “F”

(Camiz) and “G” (Le Breton), respectively, and incorpo-

rated herein by reference.

7. After the Court ordered the Defendants to agree

on limited discovery, the Defendants then submitted to

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the Plaintiff responses on behalf of each of the Defen-

dants to Certain Requests for Information Described in

Plaintiff’s Particularized Statement of Subject Matter of

Discovery. Two of these Responses were signed and the

others were submitted unsigned (and some were false).

Copies of those Particularized Statements are attached

hereto as Exhibits “H”, “1”, “J”, “K” and “L”, and incor-

porated herein by reference.

8. At Plaintiff’s request, Defendant, Aerospatiale,

S.N.L., through its attorney, provided the Plaintiff with a

summary of the biographical information on Mr. Brad-

ford, Mr. Tuot, Mr. Le Breton, and Mr. Brodin. A copy of

the letter containing that summary is attached hereto as

Exhibit “M” and incorporated herein by reference. As

shown by Exhibit “M”, two of the individuals that the

Defendants claimed knew the most about business con-

ducted from 1985 to 1994 in the state of Mississippi by the

Defendants were not even employed by any of the Defen-

dants for part of the period of time in question from 1985

to 1990. Exhibit “M” reflects that Mr. Bradford began

working with Aerospatiale, S.N.I. in November, 1990 and

remained there until January 1, 1991, when he joined

Aerospatiale, Inc.; Mr. Tuot joined Aerospatiale, S.N.I. as

general counsel and Vice President of Legal Affairs in

January of 1991. Therefore, these two individuals had no

personal knowledge of this issue.

9. Roberto Camiz was one of the individuals who

submitted a Declaration swearing that he had knowledge

of the contracts of the Defendants with the state of Mis-

sissippi. Mr. Camiz, when deposed however, admitted

that he had no personal knowledge about any of the

things contained in the Declaration that he signed under

J-38

penalty of perjury and that the information contained in

his Declaration Under Penalty of Perjury and in the

Response to Particularized Statement of Fact was solely

based upon his conversations with other lawyers in other

departments of Finmeccanica. Mr. Camiz did not have

any idea about what kind of investigation the other law-

yers made to give him information before he signed the

Declaration Under Penalty of Perjury, and before he pre-

pared the Response to Particularized Statement of Fact.

The relevant portions of Mr. Camiz’ deposition are

attached hereto as Exhibit “N” and incorporated herein

by reference.

10. Despite Mr. Camiz’ statement that none of the

divisions of Finmeccanica nor Finmeccanica did any busi-

ness or had any contact with any person, corporation,

partnership, entity or governmental subdivision in the

State of Mississippi, Alenia, a division of Finmeccanica,

appears on the customer list of Vickers, Inc., a Mississippi

based company. A copy of the customer list for Vickers,

Inc. is attached hereto as Exhibit “O” and incorporated

herein by reference. Further, in spite of Mr. Camiz’ Decla-

ration Under Penalty of Perjury and in spite of the infor-

mation that he provided to the Court in his deposition,

Plaintiff has discovered that representatives of Alenia

attended the Vickers Aerospace Conference in Jackson,

Mississippi on November 4-6, 1991. A copy of the 1991

Minutes of that meeting are attached hereto as Exhibit

“P” and incorporated herein by reference.

11. The Defendant, Aerospatiale, S.N.I., provided

the Court with a false Declaration Under Penalty of Per-

jury by Thierry Tuot on June 27, 1994, and later provided

to the Plaintiff unsigned false responses to certain

J-39

requests for information dated November 1994. After

subpoenas were issued by the Plaintiff to Vickers and

other nonparties, Defendants, through their attorney,

acknowledged on or about January 13, 1995, that, con-

trary to the Declarations Under Penalty of Perjury, and

earlier representations to the Court and to the Plaintiff,

the Defendant, Aerospatiale, S.N.I., did in fact do busi-

ness totalling $3,700,000.00 in the state of Mississippi in

1993; that Aerospatiale, S.N.I. had two contracts with

Vickers, Inc., one in 1970 and one in 1989; that Aero-

spatiale purchased hydraulic pumps from Vickers every

year beginning in 1970 until the present time; and that

Aerospatiale had three different representatives repre-

senting three different divisions of Aerospatiale in the

state of Mississippi in 1993.

12. The Defendants have not supplied, in violation

of this Court’s Orders, the information and documents in

its possession, custody or control concerning this and

other business conducted in Mississippi from 1985 to

1993. Plaintiff incorporates herein by reference the fol-

lowing:

(a) Declaration of Thierry Tuot dated June 27,

1994 which is attached hereto as Exhibit

“oc

(b) Defendant's, Aerospatiale, S.N.I., original

unsigned Responses to Certain Requests for

Information dated November 1994 which is

attached hereto as Exhibit “H”;

Response to Certain Requests for Informa-

tion (which was signed and supplied to the

Plaintiff on January 25, 1995) which is

(d)

(e)

J-40

attached hereto as Exhibit “Q” and which

states that the Defendant, Aerospatiale,

S.N.I., did $3,700,000 worth of business in

the State of Mississippi in 1993; that Aero-

spatiale, S.N.I. had contracts with Vickers in

Jackson, Mississippi; that, pursuant to those

contracts, Aerospatiale purchased hydraulic

pumps from Vickers, Inc. every year from

1970 until the present time; and that Aero-

spatiale had representatives at the Vickers’

plant in Jackson, Mississippi at the very

time it submitted the original Response to

Certain Requests for Information (Exhibit

“H”) to the Plaintiff stating that Aero-

spatiale had never had any representative

visit the state of Mississippi; and

A letter from George W. Miller to Wayne

Ferrell dated January 13, 1995 verifying that,

despite the earlier declarations under pen-

alty of perjury, and despite the earlier repre-

sentations to the Court, and to the Plaintiff,

that Aerospatiale S.N.I. in fact performed

substantial business in the State of Missis-

sippi. A copy of this letter is attached hereto

as Exhibit “R”.

The telephone deposition of Thierry Tuot

taken on January 16, 1995, is attached hereto

as Exhibit “S”. In the deposition, Mr. Tuot

explained that he did not discover that

Aerospatiale had contracts with Vickers, Inc.

(Jackson, Mississippi) until December of

1994 and that he immediately advised

Defendants’ attorneys. Defendants’ attor-

neys did not notify the Plaintiff about th

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