Petition for Writ of Certiorari — Subramanian v. QAD Inc.

| Supreme Cou

rt, U.

Q41570 May 17 2005

NO.___OBRICE OF THe CLERK

In the Supreme Court of the United States

MANI SUBRAMANIAN,

Petitioner,

V.

QAD INC., et al.,

Respondents

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

Mani Subramanian

228 Hamilton Avenue, 3F

Palo Alto, CA 94301

Tel: (650) 798-5288

Fax: (650) 798-5001

Email: prosedefendant@yahoo.com

Pro Se Petitioner

TORRE 9 La OK. KD iV arceeie ry, ssotas ie ite ‘ abe : . m

— - seniatenaiesiastaniinad cenit c ie PAE ASW PHOS SIMD Wiss es atten Kile OA nde se ihe ARS RARE iA i aaciicens * Ladaaindyi

QUESTIONS PRESENTED

This action was removed to the District Court from a

State Court on the basis of complete preemption under

the Copyright Act. The District Court remanded with a

brief order. The following question is currently subject

to seriously conflicting opinions in the Circuit Courts.

Under what circumstances is a District Court’s order

remanding a case (to state court) reviewable and

what is the permissible scope of such review?

1. Whether a Circuit Court can deny jurisdiction to

review a remand order when there is no reasonable way

(a) to even determine that the District Court, in good

faith conducted a preemption analysis; and/or

(b) to rule out the possibility that the decision to

remand was indeed discretionary; and/or

(c) to determine the question of appellate jurisdiction

without examining the substance of the order.

2. Whether an otherwise reviewable remand order by

the District Court becomes unreviewable just because a

phrase, e.g., “lack of subject matter jurisdiction”, is

presented on the face of the order, although the order

when considered as a whole contradicts that very phrase.

3. Whether there is jurisdiction in the Circuit Court to

reverse a remand order that follc ws and is predicated

upon other reviewable orders, interlocutory or otherwise.

Page i of vii

LIST OF PARTIES TO THE PROCEEDINGS

A The “OAD” Parties

‘ QAD Inc., a Delaware Corporation:

rf QAD Japan K.K.., a Japanese Corporation;

x QAD Japan Inc.. a Delaware Corporation:

4. John Doordan; and 5. Lai Foon Lee, Individuals

ATTORNEYS FOR THE “QAD” PARTIES ABOVE

William D. Connell, GCA LAW PARTNERS LLP

1891 Landings Drive, Mountain View, CA 94043

Tel: (650) 428-3900 ~~ Fax: (650) 428-3901

Email: beonnell@gcalaw.com

B The “ANDERSEN” Parties

5. Arthur Andersen LLP, a Limited Partnership

ATTORNEYS FOR “ANDERSEN”

Frederick Fields, Coblentz, Patch, Duffy & Bass LLP,

One Ferry Building, Suite 200, San Francisco, CA 94111

Tel: (415) 391-4800 Fax: (415) 989-1663

Email: ffields@cpdb.com

C. The “VEDATECH” Parties

6. Vedatech K.K., a Japanese Corporation

7. Vedatech Inc., a Washington State Corporation

ATTORNEYS FOR “VEDATECH”

James S. Knopf, Law Offices of James S. Knopf,

1840 Gateway Drive, 2F, San Mateo, CA 94404

Tel: (650) 627-9700 — Fax: (888) 808-5001

Email: jsk@knopflaw.com

Page ii of Vi

Fh ee of Ch ee ee oe

RULE 29.6—DISCLOSURE STATEMENT

Petitioner is an individual and as such is not subject to

the disclosure requirements of this rule.

Petitioner is the beneficial controlling shareholder of the

“VEDATECH” parties, Vedatech K.K.., a Japanese

Corporation and Vedatech Inc., a Washington State

Corporation, which are on the same side as petitioner in

the underlying case and in the appeals in the Ninth

Circuit.

///

thf

//

Page ili of Vi!

TABLE OF CONTENTS

i RARE AR ROOT i

List of Parties to the Proceedimgs............ccccccccccssccccsescccces ii

Rule 29.6 Disclosure einai esnksoesecsedsaccsnsonscenesecsnsssentl iii

Table a Stpaaneensaesences iv

TARA GF AUT IG Fc cscccccccsneccncssccscccanscchinescens Vii

Cree PAPC CI cccccnnsscctsscnsccecssessnsescssesecations i

THE BASIS FOR JURISDICTION. ..............cccccccscccccecees 1

THE STATUTES INVOLVED IN THIS CASE.................. 1

STATEMENT OF MATERIAL FACT B.............cc0seeeeeseees 2

LEGAL ARGUMENT.......... Lancendbensnndnnesessncctadaensosanaces 3

1) There is a serious circuit split regarding the

jurisdiction to review such remand orders,

the standards to adopt in reviewing such

remand orders, and the jurisdiction of the

circuit courts to so review—the Tenth and

Third Circuits are in direct conflict with the

8 ART Ne AI ANN Pe TTT OEM RM RO oe 3

A. The position of the Tenth Circuit...............:000000004 ‘oath

B. Third Circuit in accord with the Tenth..................... 5

C. The Ninth Circuit has adopted, in this case,

precisely the circular logic criticized forcefully

by the Third Circuit (see footnote ‘n2’ in the

Page iv of VI

2)

3)

4)

5)

6)

extracted passage above)—it dismissed the appeal

procedurally by denying appellate jurisdiction,

simply by citation to §1447(d).............c.ccscesceceecceecees 6

The Supreme Court has not yet defined the

standards for appellate review for

determining if a remand order is indeed

MOONE Clb BOG Pi ccnccnticccccdsansandscnndenncnsocdssssanenneia 8

Regarding “sua sponte” remands for

procedural defects...the negative effect of the

premature summary determination by the

Ninth Circuit on the question of jurisdiction............... 9

Effect of prior interlocutory orders.................0.0sese0 9

This is a recurring conflict regarding an issue of

great practical and fundamental importance............ 10

This case squarely presents this conflict, and,

furthermore is factually straightforward.................. 10

There is clearly, among the lower courts, a

widespread misunderstanding of the lessons of

Thermtron, Quackenbush, Carnegie-Mellon etc..........10

Uniformity in Judgments regarding the basic

question of jurisdiction of the District Courts............ 11

The Ninth Circuit’s decision to deny jurisdiction is

incorrect and should be reversed—the Tenth

Circuit approach is the correct One................eeeeeeeeee 11

RG a i icccissccasanisnnssinhtinianidaniaskanainin 12

Page v of Vil

APPEND i Rc ccccccccscccccsccccccccsncscesepecnsccsccoscnsessseseoseses -A-1

Ninth Circuit Order dated Feb 16, 2005..............++: A-2 to A-3

Ninth Circuit Order dated Aug 16, 2004................ A-4 to A-5

Ninth Circuit Show Cause Order of Jun 17, 2004......A-6 to A-7

District Court REMAND Order dated Apr 29, 2004........... A-8

District Court Show Cause Order

en A-9 to A-17

District Court REMAND Order

Gated Ful BE Dee dscecccceccncéocecdesesesnncctecsesl 4-18 to A-19

District Court Order re Miscellaneous Requests...A-20 to A-24

Text of Statute--28 U.S.C. §1447.............ccccccccccccccccccees A-25

Text of Statute--28 U.S.C. S144 1.0.00... ccc cccceceecceeeeeneenened A-26

Page viof vii

TABLE OF AUTHORITIES

Cases

Albertson's Inc. v. Carrigan,

982 F.2d 1478, 1479-80 (10" Cir. 1993) ..ccccccccccccccccecceeeee: 4

Archuleta v Lacuesta, 131 F.3d 1359 ( 10" Cir. 1997)... 3. 4.6

Brockman v Merabank. 40 F.3d 1013 cg" Cir. 1994)............ 8

Carnegie-Mellon University v. Cohill,

484 U.S. 343 (1988) o..cccccccccccccccccccccccccescccesssceseccecescesee. 8. 10

Dalrymple v. Grand River Dam Auth.,

145 F.3d 1180, 1184 (10" Cir. 1998)............. 4.5

Feidt v. Owens Corning Fiberglass Corp..

BSS 1S 0G CI Ce, NID rcrecncceccccsoneccocencsoessssnsocecececares 5

Flores v Long, 110 F.3d 730 (10th Cir.. 1997) .......ccccccccecee0e. 3

Homestead Insurance Co. 346 F.3d 1190 (9" Cir. 2003)..... 9

Kennedy v Lubar, 273 F.3d 1293 (10 Cir. 1997) ......0.cccc000+. 4

Levin Metals, Corp. v. Parr-Richmond Terminal Co..

FORT 8 ESTE CA, FI arccsrinerrestnctnincntinintensnins 6.7

Liberty Mutual Ins. Co. v. Ward Trucking Corp.,

RUSTE COSTCO Os Ree Wi De 21D on Pee ec 5

Pelleport Investors, Inc. v. Budco Quality Theaters, Inc..,

PE FRAT Uk FI aii crsinnrslitencicectpeeants y

Quackenbush v Allstate Insurance Co.,

Pe Satis PL iaceisitisscaviesaticsdedibinnctisanslediiaisiintieicataidioin 8,10

Thermtron Products v. Hermansdorfer,

ith Be eS NN. Gr ey

Page viiof Vit

OPINIONS AND ORDERS |

Two related appeals were considered together by the

Ninth Circuit Court of Appeals, under Ninth Circuit case

numbers, 04-16194 (“first”) and 04-16416 (“second”).

No opinions were issued and none are reported.

The Order denying rehearing was entered on Feb 16,

2005 (Appendix, infra, pages A-2 to A-3). The original

order dismissing the two appeals was entered on

August! 6, 2004 (App.. infra, A-4 to A-5). The show

cause order in the first appeal, 04-16194, preceding the

procedural dismissal, was entered on June 17, 2004

(App.. infra, pages A-6 to A-7).

Se ee

THE BASIS FOR JURISDICTION

The Ninth Circuit Court of Appeals’ order denying the

timely motion for rehearing was entered on February 16,

2005 (App.. infra, A-2 to A-3). This petition for a writ

of certiorari is being filed on May 17, 2005, within the

90-day period permitted by the Rules of the Supreme

Court of the United States, rule 13(1). The Jurisdiction

of this Court is invoked under 28 U.S.C. §1254(1).

THE STATUTES INVOLVED IN THIS CASE

The relevant parts of the statutes relied upon are

reproduced in the Appendix, at pages A-25 to A-26.

Page | of 12

STATEMENT OF MATERIAL FACTS

On March 15, 2004, petitioner (and related parties)

removed this action from the State Court to the Federal

District Court on the basis of complete preemption (of

the state law claims of respondent-plaintiffs,) by the

Copyright Act, 17 U.S.C. §§101 et. seq. On March 23,

2004, the District Court issued a sua sponte show cause

order requesting briefs in favor of the presence of a

federal question. (App., infra, A-9 to A-17). On April

29, 2005, the District Court issued a short remand order,

without any explanation or other opinion, returning the

case to State Court (App., infra, A-8). On appeal to the

Ninth Circuit Court of Appeals as 04-16194, the Ninth

Circuit issued a show cause order regarding its own

appellate jurisdiction, (App., infra, A-6 to A-7). On

August 16, 2004, the Ninth Circuit concluded it did not

have jurisdiction because of the straightforward

operation of 28 U.S.C. §1447(d), (App., infra, A-4 to A-

5). A motion for rehearing was rejected by order of

February 16, 2005, (App., infra, A-2 to A-3). A second

removal by petitioner based on newer evidence was

remanded by the same District Court Judge, App., infra.

A-18 to A-19), after rejecting requests, inter alia, for the

Judge to recuse themselves because of the pendency of

the appeal of their prior remand order, App., infra, A-20

to A-24. The Ninth Circuit did not consider the matter

of the second removal, 04-16416, separately but

disposed of it also by means of the joint orders made in

Case No. 04-16194.

Page 2 of 12

LEGAL ARGUMENT

Petitioner respectfully submits that a writ of certiorari

must issue because, inter alia:

1) There is a serious circuit split regarding the

jurisdiction to review such remand orders, the

standards to adopt in reviewing such remand

orders, and the jurisdiction of the circuit courts to

so review—the Tenth and Third Circuits are in

direct conflict with the Ninth Circuit

A. The position of the Tenth Circuit

The Tenth circuit explicitly requires the District Court to

approach the decision to remand by means of a “good

faith” analysis as to the grounds for removal to federal

court. See, e.g., Archuleta v Lacuesta, 131 F.3d 1359

(10" Cir. 1997) at p.1362, (emphasis added):

A district court’s assertion that it lacks subject matter

jurisdiction and even explicit reference to $/447(c),

does not automatically render a remand order non-

reviewable under $/447(d). See Flores, 110 F.3d at

732. In Flores, we explained that we will determine

by independent review the actual grounds upon

which the district court believed it was empowered

to remand. /d. The district court need not be correct

in its determination that it lacked subject matter

jurisdiction, however, so long as it made that

determination in good faith. See id., at 733.

Page 3 of 12

A ire Ran A PRR a ac, nace

This is also reiterated in the decision in Kennedy v

Lubar, 273 F.3d 1293 (10™ Cir 1997), at p.1297:

[emphasis added] ...28 U.S.C. §1447(d) states that,

subject to certain exceptions not applicable here, “an

order remanding a case to the State court from which

it was removed is not reviewable on appeal or

otherwise...” This strong statutory limitation on

appellate review applies, only however to remands

based on 28 U.S.C. §1447(c). Albertson's Inc. v.

Carrigan, 982 F.2d 1478, 1479-80 (10" Cir. 1993).

See also Dalrymple v. Grand River Dam Auth., 145

F.3d 1180, 1184 (10" Cir. 1998). Section 1447(c)

specifically allows district courts to order remand if

there has been a “defect in removal procedure,” or if

it determines, at any time prior to final judgment, that

it “lacks subject matter jurisdiction.” Ifa district

court orders remand on either of these grounds,

§1447(d) absolutely prohibits appellate review of the

order, and we adhere firmly to this prohibition even

where we believe that the district court was plainly

incorrect. Archuleta v Lacuesta, 131 F.3d 1359, 1363

(10" Cir. 1997).

In determining whether or not a district court

remanded a case on grounds provided in §1447(c),

“we must independently review the record to

determine the actual grounds upon which the district

court believed it was empowered to remand.”

Dalrymple, 145 F.3d at 1184. “An explicit reference

Page 4 of 12

.

=

'

to §1447(c) does not automatically render a

remand order non-reviewable...Nor does the

absence of such a reference automatically confer

appellate jurisdiction over a remand order.” /d.

(citation Omitted). Thus, we must consider a

district court’s order of remand as a whole,

reviewing it in its entirety and considering the

motions and issues actually before the district

court.

B. Third Circuit in accord with the Tenth

In Feidt v. Owens Corning Fiberglass Corp., 153 F.3d

124 (3™ Cir. 1998) at p.128, the Third Circuit

emphatically agrees with this position:

—

Section 1447(d), in prohibiting review of remand

orders, contemplates that district courts may err in

remanding cases. See Thermtron, 423 U.S. at 342, 96

S. Ct. at 589; Liberty Mutual, 48 F.3d at 750. Indeed,

"no matter how faulty we might consider the district

court's reasoning or methods, section 1447(d)

prohibits us from reviewing an action the district

court was empowered to take, and one that Congress

intended to be final." Liberty Mutual, 48 F.3d at 750-

51. n2_ The district court's authority, indeed

obligation, to determine whether a removal petition

properly invokes its removal jurisdiction necessarily

includes the authority to construe the complaint upon

which the court makes its determination. Upon review

Page 5 of 12

of the district court decision. we find that the district

court made a good-faith construction of the complaint

and examination of the record and then concluded

that it lacked subject matter jurisdiction. See

Archuleta v. Lacuesta, 131 F.3d 1359, 1363 (10th Cir.

1997) (reviewing district court's remand order to

determine actual grounds for remand rather than

accepting the court's reference to section 1447(c) or

assertion of subject matter jurisdiction as rationale).

n2 It would be bizarre to hold that a court of

appeals could review a remand order only if

erroneous, as in that circumstance the jurisdictional

determination would be a merits determination.

The Ninth Circuit has adopted, in this case,

precisely the circular logic criticized forcefully

by the Third Circuit (see footnote ‘n2’ in the

extracted passage above)— it dismissed the

appeal procedurally by denying appellate

jurisdiction, simply by citation to §1447(d)

The decision of the Ninth Circuit to deny jurisdiction is

explained curtly in the order of dismissal dated August

16, 2004 (Appendix, infra, pages A-4 to A-5):

[...] See 28 U.S.C. §1447(d); Levin Metals, Corp. v.

Parr-Richmond Terminal Co., 799 F.2d 1312 (9" Cir.

1986). [...]

Page 6 of 12

The June 17, 2004 order referred to above, (App.. infra.

A-6 to A-7) is equally focused on reciting §1447(d):

|...] A review of the record suggest that this court

may lack jurisdiction over the appeal because an

order remanding for lack of subject matter jurisdiction

generally is not appealable. See 28 U.S.C. §1447(d).

Equally so, the reference to Levin Metals, supra, also

illustrates that the Ninth Circuit does not test the remand

order for more than formal invocation of the grounds

stated in §1447(c). Levin Metals, supra, deals with this

matter in a single sentence, and that too in the most

general sense possible. See Levin, 799 F.2d at p.13 14:

The district court's order remanding the Levin Metals

action to state court on the ground of lack of

jurisdiction is not reviewable in this appeal. 28 U.S.C.

§ 1447(c), (d). See Thermtron Products, Inc. v.

Hermansdorfer, 423 U.S. 336, 351 [...]

Thus, it is clear that the Ninth Circuit’s analysis has no

place for reviewing the merits of the remand order and

certainly does not extend to the “good faith” requirement

set out by the Tenth Circuit and adopted by the Third

Circuit. It is also clear that the procedural mechanism

that the Ninth Circuit chose to dispose of the case (i.e. a

show cause notice issued by a staff attorney and

summary dismissal following the same) confirms that in

determining jurisdiction, the Ninth Circuit determined

the merits of the appeal without touching upon the latter.

Page 7 of 12

oOo

D. The Supreme Court has not yet defined the

standards for appellate review for determining

if a remand order is indeed based on §1447(c)

In a series of decisions, this Court (1.e., the US Supreme .

Court), has limited the ability of District Courts to rely

upon the apparent protection Congress has given to such

first instance decisions: viz., the provisions of 28 U.S.C.

§1447(d) that attempt to broadly prohibit appellate

review of such remand orders. In Thermtron Products v.

Hermansdorfer, 423 U.S. 336, 345-346 (1976) this

Court decided that mere reference to §1447(d) is not

“dispositive of the reviewability” of remand orders and

that it must be read in “pari materia” with the sister

subsection §1447(c). In Quackenbush v Allstate

Insurance Co., 517 U.S. 706, 732 (1996), this Court

further explained that abstention-based remands are

appealable, and indeed, that such remand orders were

“unwarranted” because the relief sought was neither

discretionary nor equitable. In Brockman v Merabank,

40 F.3d 1013, 1017 (9"" Cir. 1994), the Ninth Circuit;

referring to this Court’s decision in Carnegie-Mellon

University v. Cohill, 484 U.S. 343, 356 (1988) affirmed

that the District Courts have an “unflagging obligation”

to exercise their jurisdiction when such jurisdiction was

properly invoked. The question remains then as to what

standards a court of appeal must adopt in order to test a

remand order for reviewability and what tests may be

used for the same. This is where the circuits have split.

Page 8 of 12

E. Regarding “sua sponte” remands for

procedural defects...the negative effect of the

premature summary determination by the

Ninth Circuit on the question of jurisdiction

In Kelton Arms Condominium Owners Ass'n v

Homestead Insurance Co., 346 F.3d 1190 (9" Cir.

2003), the Ninth Circuit itself decided that the District

Court was not authorized under 28 U.S.C.§1447(c) to

sua sponte remand for procedural defects (which is

exactly what the District Court attempted to do in the

first remand order, (Appendix, infra, A-8). The

premature determination herein by the Ninth Circuit that

§1447(d) prohibited a review of the District Court’s

orders, has prevented it from reaching the merits of the

argument that the District Court erred on this point also.

F. Effect of prior interlocutory orders

In Pelleport Investors, Inc. v. Budco Quality Theaters,

Inc., 741. F.2d 273, (9" Cir. 1984), at p.276, the Ninth

Circuit decided that interlocutory orders preceding the

remand orders are reviewable. Again, the premature

jurisdictional determination has prevented the Ninth

Circuit from reviewing the eminently appealable matters

in the second appeal, 04-16416, such as the decision by

the District Court Judge not to recuse themselves, (App..,

infra, A-20 to A-24). This court needs to clarify the law

regarding the effect of a reversal of such a prior

interlocutory order on a subsequent remand order.

Page 9 of 12

2) This is a recurring conflict regarding an issue of

great practical and fundamental importance.

Questions of federal jurisdiction are primarily questions

of constitutional law. Removal jurisdiction, and the

right of defendants in State Courts to remove “artfully

pleaded” complaints that properly belong in federal

court, would be rendered meaningless if District Courts

can, without fear of appellate review:

(a) remand such cases on a discretionary basis, or

(b) defeat the right of access to federal Courts without

regard to the merits of the removal petition, or

(c) safely remand without proper consideration of the

invariably complex preemption analysis.

3) This case squarely presents this conflict, and,

furthermore is factually straightforward

This Court can now resolve the critical issue of the

scope of the appellate review of such remand orders in a

case such as this, involving a predominantly legal matrix

without having to deal with complex factual questions.

4) There is clearly, among the lower courts, a

widespread misunderstanding of the lessons of

Thermtron, Quackenbush, Carnegie-Mellon etc.

In this line of cases, this Court has attempted to

delineate the scope of such review re remands. It is

clear that further guidance is needed. Only this Court

can end such confusion and bring clarity to this area.

Page 10 of 12

a ie at le

=

5) Uniformity in Judgments regarding the basic

question of jurisdiction of the District Courts

Such uniformity cannot be achieved without immediate

intervention by this Court. Especially in the matter of

access to federal courts on issues such as copyright law,

which is a matter reserved explicitly to the federal courts —

by Congress, it is important that such discriminatory

treatment in the access to federal courts, also in violation

of petitioner’s constitutional rights, be avoided.

6) The Ninth Circuit’s decision to deny jurisdiction

is incorrect and should be reversed—the Tenth

Circuit approach is the correct one...

The Ninth Circuit should have exercised jurisdiction to

review the remand orders. Furthermore, it should have

found that the remand orders were not consistent with 28

U.S.C. §1447(c) and should have proceeded to

determine the question of federal preemption by itself.

The Ninth Circuit should also have decided the appeal of

the interlocutory orders in the second appeal and should

have reversed those, including the subsequent remand

order. The jurisdiction of any court to determine its

own jurisdiction is settled beyond argument.

This Court should approve of the principles adopted by

the Tenth and Third Circuits and should clarify this area .

of law so that there is certainty and uniformity in how

jurisdiction of the District Courts is administered in the

federal courts across the United States.

POR eae PGe Rec GEO tet 2 ~

Page 11 of 12

CONCLUSION

Petitioner has demonstrated that there is a serious and

irreconciliable circuit split as to the reviewability and

appealability of remand orders purportedly under 28

U.S.C. §1447(d). The Ninth Circuit’s approach and that

of the Tenth/Third circuits are diametrically opposed.

The first accepts any remand order that simply refers to

the relevant statute, and the second always gets its

“hands dirty” and actually tests the order/opinion to see

if there was attempted a “good faith” analysis of the

petition for removal. It is clear that this question is of

great significance, going as it does to the very access to

federal courts and the “unflagging” duty of the District

Courts to keep their doors open when jurisdiction can be

established in a removal petition. This is especially so

in matters of Copyright Law which Congress has clearly

meant to completely preempt any state law claims,

however artfully such matters may be pleaded in the

state court Complaint. This case presents such a live

controversy without factual complications and almost as

a pure fegal question. Only a timely intervention by this

Court bring consistency to this complex area of law.

This petition for a writ of certiorari should be granted.

Respectfully submitted.

9h Ml Fotis

Mani Subramanian MAY 17, 2005

Pot a Oonigd Y

Page 12 of 12

APPENDIX

ORDERS IN THE NINTH CIRCUIT (Case Nos: 04-

16194 and 04-016416 and related District Court orders)

—_—___—_— $$$ — + —— —_—_—__y——_—

No. Description Date REF

| aenceeneneennonavannionten a —

1. | Order denying Request for Feb 16, 2005 | A-2

| Rehearing (Reconsideration) A-3

caieneatnaceoiaa hibceaeae

2. | Order denying appellate Aug 16, 2004 A-4

jurisdiction to review District A-5

(ourt orders

——— — —

Jun 17,2004 | A-6

Circuit regarding Jurisdiction A-7

|

|

Jf ed TIE

|

|

|

3. Show Cause Order of Ninth

4. | District Court Order remanding | Apr 29, 2004 | A-8

| case to State Court (First Case:

No: 04-16194 in the Ninth

Circuit)

5. District Court Show Cause Mar 23, 2004 | A-9

Order regarding first removal to A-17

Federal Court (First Case: No:

04-16194 in the Ninth Circuit)

6. | District Court Order remanding | Jul 16,2004 | A-18

case to State Court (Second A-19 | -

Case: No: 04-16416 in the

Ninth Circuit)

7. District Court “Miscellaneous” | Jul 06,2004 | A-20

Order (Second Case: No: 04- A-24

16416 in the Ninth Circuit)

ete a hh ee a .

Page A-|

FILED FEB 162005 CATHY A. CATTERSON, CLERK

U.S.COURT OF APPEALS

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

QAD INC., a Delaware No. 04-16194

corporation: et al

D.C. No. CV-04-01035-PJH

Northern District of

| California,

MANI SUBRAMANIAN, an | San Francisco

Plaintiffs — Appellees,

V.

individual: et al.,

Defendants — Appellants,

and,

DOES | THROUGH 50,

inclusive, |

Defendant.

QAD INC., a Delaware | No. 04-16416

corporation; et al |

D.C. No. CV-04-01035-PJH

| Northern District of

| California, San Francisco

MANI SUBRAMANIAN, an

individual: et al..

Plaintiffs — Appellees,

Ve

Defendants — Appellants,

ARTHUR ANDERSEN LLP, ORDER

Defendant.-Appellee.

{Order dated Feb 16, 2005 continued from previous page]

04-16194

Before; SCHROEDER, Chief Judge, RAWLINSON

and CALLAHAN, Circuit Judges

Appellants’ August 30, 2004 “petition for

rehearing and suggestion for rehearing en banc” is

construed as a motion for reconsideration. See 9" Cir. R.

27-10. So construed, the motion is dented.

The suggestion for rehearing en banc is denied on

behalf for the court. See 9" Cir. Gen Ord. 6.11.

No motions for reconsideration, modification. or

clarification of this order shall be filed or entertained.

Page A-3

sony aut AUG 16 2004 CATHY A. CATTERSON, CL ERK

U.S.COURT OF APPEALS

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

QAD INC., a Delaware

corporation; et al

Plaintiffs — Appellees,

Vv.

MANI SUBRAMANIAN, an

individual; et al.,

Defendants — Appellants,

and,

DOES | THROUGH 50,

inclusive,

Defendant.

QAD INC., a Delaware

corporation; et al

Plaintiffs — Appellees,

v.

MANI SUBRAMANIAN, an

individual: et al.,

Defendants — Appellants,

ARTHUR ANDERSEN LLP,

Defendant.-Appellee.

No. 04-16194

D.C. No. CV-04-01035-PJH

Northern District of

California,

San Francisco

No. 04-16416

D.C. No. CV-04-01035-PJH

Northern District of

California, San Francisco

ORDER

[Order dated Aug 16, 2004 continued from previous page]

04-16194

Before; SCHROEDER, Chief Judge, RAWLINSON

and CALLAHAN, Circuit Judges

The Court has reviewed the response to its June 17,

2004 order filed in 04-16194. This appeal and the appeal

no. 04-16416 are dismissed. See 28 U.S.C. §1447(d):

Levin Metals, Corp. v. Parr-Richmond Terminal Co, 799

F.2d 132 (9th Cir. 1986).

All pending motions are denied as moot.

DISMISSED

Page A-5

FILED JUN 17,2004 CATHY A. CATTERSON, CLERK

U.S.COURT OF APPEALS

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

QAD INC., a Delaware

corporation; et al

Plaintiffs — Appellees,

V.

MANI SUBRAMANIAN, an

individual; et al.,

Defendants — Appellants,

and,

DOES | THROUGH 50,

inclusive,

Defendant.

No. 04-16194

D.C. No. CV-04-01035-PJH

Northern District of

California,

San Francisco

ORDER

A review of the record suggests that this court may

lack jurisdiction over the appeal because an order

remanding for lack of subject matter jurisdiction

generally is not appealable. See 28 U.S.C. § 1447(d).

Within 21 days of the filing date of this order,

appellants shall move for voluntary dismissal of the

appeal or show cause, appellees may respond within 8

days after service of appellants’ memorandum.

Page A-6

[Order dated Jun 17, 2004 continued from previous page|

04-16194

If appellants do not comply with this order, the Clerk

shall dismiss this appeal pursuant to Ninth Circuit Rule

42-1.

Briefing is suspended pending further order or the

court.

For the Court

S/

Karen Reichmann

MotionsAttorney/Deputy

aa Clerk

9th Cir. R. 27-7

General Orders/Appendix A

Page A-7

sé...

{Order dated Apr 29, 2004 of District Judge Hamilton]

NOT FOR CITATION

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

QAD INC.., et al., .

Plaintiffs No. C 04-1035 PJH

V. ORDER

MANI SUBRAMANIAN, et al.,

Defendants

/

The removing parties having failed to establish

the presence of a federal question in this action, removed

to this court as a consolidated action from the Superior

Court of California, County of Santa C lara,’ the court

finds that the case must be REMANDED for lack of

subject matter jurisdiction. As a further basis for

remand, the court finds that removal was untimely. The

motion of QAD, Inc., for an award of costs and fees

pursuant to 28 U.S.C. § 1447(c) is DENIED.

IT IS SO ORDERED.

Dated: April 29, 2004

/s/

PHYLLIS J. HAMILTON

United States District Judge

Page A-8

FILED 2004 MAR 23PM 5:54 RICHARDW.WIEKING,

CLERK, U.S. DISTRICT COURT, NO. DISTRICT OF CA

DISTRICT JUDGE PHYLLIS J. HAMILTON

NOT FOR CITATION

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

QAD INC., et al.,

Plaintiffs No. C 04-1035 PJH

v. ORDER TO SHOW

MANI SUBRAMANIAN, et al., CAUSE

Defendants

/

/

TO REMOVING PARTIES MANIS. SUBRAMANIAN and

VEDATECH, INC., AND THEIR COUNSEL OF RECORD;

YOU ARE HEREBY ORDERED TO SHOW

CAUSE IN WRITING no later than April 12, 2004, why the

above entitled action should not be remanded for lack of

subject matter jurisdiction.

Mani S. Subramanian and Vedatech, Inc., seek to

remove two actions originally filed in the Superior Court of

California, County of Santa Clara, both previously removed

to the San Jose Division of the Northern District of

California, and subsequently remanded to the Santa Clara

Superior Court. At some point after the remand, the Superior

Court, according to the removing parties, consolidated the

two cases for all purposes including trial.

On March 15, 2004 the removing parties filed a notice of

removal alleging jurisdiction based on the presence of federal

question. Under the 28 U.S.C. § 1441(b), “[a]ny civil action

Page A-9

ili eceaaeaileaeiacne

of which the district courts have original jurisdiction founded

on a claim or right under the Constitution, treaties, or laws of

the United States shall be removable without regard to the

citizenship or residence of the parties.” The removing parties

assert that the case that the case is removable because

“certain of the claims alleged in the action arise under the

Federal Copyright Act, 17 U.S.C. § 101, et seq.” Notice of

Removal 45. They do not specify which claims those might

be.

Santa Clara Superior Court case No. CV 771638 was

originally filed on January 28, 1998 was removed to the

Northern District on July 29, 1998, as case No. C-98-20792-

SW: and was remanded on April 10, 2000. Plaintiffs in that

action are Qad, Inc., a Delaware corporation, and Qad Japan

K.K., a Japanese corporation. Defendants are Mani

Subramanian, an individual, and Vedatech, Inc., a

Washington corporation. Plaintiffs allege six state-law

causes of action- fraud, unfair business practices in violation

of California Business & Professions Code § 17200,

intentional interference with contractual relationships, trade

libel and disparagement of goods and quality, intentional

interference with prospective economic advantage, and

breach of fiduciary duty.

Santa Clara Superior Court case No. CV 784685 was

originally filed on a date unknown; was removed to the

Northern District on December 23, 1999, as case No.

C-99-21241-SW, and was remanded to the Santa Clara

Superior Court on April 10, 2000. Plaintiffs in that action are

Vedatech-Japan K.K., a Japanese Corporation, and Mani

Subramanian. As alleged in the third amended complaint,

filed on or about December 26, 2001 defendants are QAD,

Inc.; Qad Japan K.K., Qad Japan, Inc., a Delaware

corporation; Arthur Andersen LLP, a limited partnership;

Page A-10

Nomura Research Institute Hong Kong Ltd., a Hong Kong

corporation; Nomura Research Institute Ltd., a Japanese

corporation: and three individuals of unknown citizenship,

John Doordan, Lai Foon Lee, and Isao Tsakatori.

. Plaintiffs allege fourteen state-law causes of action in

the third amended complaint — breach of contract, breach of

the implied covenant of good faith and fair dealing, fraud,

constructive fraud, negligent misrepresentation, intentional

interference in contractual relations and business advantage,

negligent interference in contractual relations and business

advantage. Intentional interference with prospective

economic advantage, negligent interference with prospective

economic advantage, trade libel, disparagement of goods and

quality, conversion, breach of fiduciary duty, and unfair

competition. |

During the period the two cases were pending in the

Northern District, they were ordered related by the assigned

district judge.” The removing parties contend that the effect

of the subsequent consolidation by the Superior Court was to

transform the two cases into a single case. They claim that

the present action — case No. C-04-1035 PJH — is “related to

the prior district court actions — C-99-21240 SW and C-98-

20792 SW — to the extent those cases are “ghosts” of the two

consolidated into one, which is the subject of the Notice of

removal.’ They contend, moreover that case No. C-04-1035

PJH — has “superseded” C-99-21240 SW and C-98-20791

SW. “which no longer exist or are closed.”

As a general rule, an action is removable to the

federal court only if it might have been brought there

originally. 28 U.S.C, § 1441(a). The removal statutes are

construed respectively, so as to limit removal jurisdiction.

Doubts as to removability are resolved in favor of remanding

the case to state court. Shamrock Oil & Gas Corp. v Sheets,

\

Page A-11

313 U.S. 100, 108-09 (1941): Gaus v. Miles, Inc., 980 F.2d

564, 566 (9"" Cir. 1992). If at any time before final judgement

the court determines that it is without subject matter

jurisdiction over a removed action, the action must be

remanded top state court. 28 U.S. C. § 1447(c).

Removability is ordinarily determined from the face of the

complaint. A defendant alleging federal question jurisdiction

“may not remove a case to federal court unless the plaintiff s

complaint establishes that the cause “arises under’ federal

law.” Franchise Tax Bd. V. Construction Laborers Vacation

Trust, 463 U.S. 1,10 (1983). Whether the complaint “arises

under” federal law for removal purposes is determined by the

same “well-pleaded complaint” rule that determines original

federal question jurisdiction. Rivet v. Regions Bank of

Louisiana, 522 U.S. 470, 475 (1998). It is not enough for

removal purposes that a federal question may arise during the

course of the litigation in connection with some defense or

counterclaim. See Franchise Tax Bd., 463 U.S. at 27-28.

' In addition, on March 9 2000, while this case was

pending in district court (as C-99-21241 SW). Qad, Inc., and

Qad Japan, Inc. filed counterclaims against Vedatech K. K.

and Mani Subramanian.

’ The removing parties claim that the two cases were

“informally consolidated.” The removing parties are

mistaken. There is no procedure for “informal consolidation”

in the district court. Cases may be related if the judge to

whom the first-filed case is assigned finds that they meet the

criteria in Civil Local Rule 3-12. Alternatively, or in

Page A-12

As “master of the complaint,” a plaintiff may avoid federal

jurisdiction by relying solely on state law. Caterpillar, Inc. v.

Williams, 482 U.S. 386, 392 (1987). It is possible, however,

that a case may be removable despite a plaintiff's reliance on

state law. “Artful pleading” exists where a plaintiff pleads an

inherently federal claim in state- law terms. Brennan v.

Southwest Airlines Co., 134 F.3d 1405, 1409 (9" Cir. 1998).

A state claim “arises under” federal law only if federal law

completely preempts the state law. Under such a

circumstance, either the state claim is necessarily federal in

character, or the right to relief requires resolution of a

substantial, disputed federal question. ARCO Environmental

Remediation, L.L.C. v. Montana, 213 F. 3d 1108, 1114 (9"

Cir. 2000).

In the present case, the removing parties note that the

plaintiffs in Superior Court case CV 771638 and the cross-

complainants in Superior Court case CV 784685 allege that

defendants and cross-defendants. respectively, were

“improperly asserting ownership to various intellectual

property of QAD, including, but not necessarily limited to,

certain computer software.” Notice of Removal at § 7 (citing

Complaint in CV 771638, 4 21 (L), and First Amended

Cross-Complaint in CV 784685 4 20 (1.).7 The removing

addition, cases may be consolidated for some purposes, or for

all purposes, as provided by Federal Rule of Civil Procedure

42(a).

> The Court is unaware of any authority that might

support this proposition

Page A-13

eee

ABU Ek Sia a RR Rite Ri Race NT MG 2S ew NNT oe

parties claim that they first learned of the presence of a

federal “claim in the consolidated state court cases on March

10, 2004, when in response to a special interrogatory

propounded in Santa Clara Superior Court case No. 771638.

plaintiff Qad, Inc., stated, in part:

QAD contends that, either directly or through QAD

Japan K.K. it paid Vedatech substantial sums of

money to perform various localizations and

customizations of its MFG/PRO software for use in

Japan . QAD further contends that it did or was

entitled to acquire all rights. Including any copyrights

or copyrightable interests to these localizations and

customizations and that, if such rights were not, in

fact acquired, the failure to acquire any such rights

was due to directly to the improper actions of Mr.

Subramanian and Vedatech.

The removing parties claim that the quoted language in

QAD’s Interrogatory response establishes that QAD

"claim[s] a copyright interest in the software underlying the

dispute and which forms the basis for QAD’s claims” and

that QAD’s claims “require QAD to prove that it owns valid

copyrights in and to the subject software and source code and

that Vedatech has harmed QAD’s copyright interests by

improperly claiming Vedatech had ownership interests in the

software.” Notice of Removal at ¥§ 11-12.

Thus, the removing parties are relying on 28 U.S.C §

1446(b), which provides, in part, that

[I]f the case stated by the initial pleading is not

removable, a notice or removal may be filed within

thirty days after receipt by the defendant, through

Page A-14

service or otherwise, of copy of an amended pleading,

motion, order or other paper from which it may first

be ascertained that the case is one which ts or has

become removable.

QAD’s interrogatory response is the “other paper” from

which the removing parties claim they learned that case NO.

CV 771638 was removable. However, the information

supporting removal must be “unequivocally clear and

certain” to start the 30-day removal period running. Bosky v.

Kroger Texas LP, 228 F.3d 208, 211 (5" cir. 2002). Here,

the removing parties have attached a copy of QAD’s

interrogatory responses as an exhibit to a declaration filed in

support of the notice of removal, but have not provided a

copy of the interrogatories themselves. Thus, the court is

hard-pressed to make any sense of the interrogatory

response.”

* The docket in district court case No. C-99-21241

SW reflects the filing of a counterclaim, but no cross-

complaint. Perhaps a cross-complaint was filled in the state

court action(s). In any event, removal cannot be based on a

defense, a counterclaim, a cross-claim, or a third-party claim

raising a federal question, whether filed in state or federal

court. See Franchise Tax Bd. Of Calif. V. Construction

Laborers Vacation Trust for So. Calif., 463 U.S. 1, 10(1983);

Metro Ford Truck Sales, Inc. v. Ford Motor Co., 145 F.3d

320, 327 (5" Cir. 1998); see also Takeda v. Northwestern

National Life Insurance Co., 765 F.2d 815, 821 (9" Cir.

1985) (“[R]emovability cannot be created by a defendant

pleading a counterclaim that presents a federal question.”)

Page A-15

Plainly, plaintiffs have not asserted a cause of action under

the Copyright Act. On its face, the complaint in Superior

Court case No. CV 771638 alleges only state law causes of

action. The only reasonable interpretation of the notice of

removal is that the removing parties are asserting that one or

more of the six state-law causes of action in CV 771638 are

completely preempted by the Copyright Act. See generally,

Rosciszewski v. Arete Assoc., Inc., 1 F. 3d 225 (4" Cir.

1993); see also Idema v. Dreamworks, Inc., 162 F.Supp.2d

1129(C.D. Cal. 2001); Firoozye v. Earthlink Network, 153

F.Supp. 2d 1115 (N. D. Cal. 2001).

Nevertheless, the removing parties have not clarified which

of those state-law causes of action should be construed as

asserting a claim under federal copyright laws. Where a

plaintiff does not plead or assert a federal claim, it is not

* The problem is exacerbated by the fact that the

removing parties have not complied with the requirement in

28 U.S.C § 1446(a) that they file, “together with” the notice

of removal, “a copy of all process, pleadings, and orders

served upon [them]” in the state court action. The removing

parties apparently seek to evade that requirement by filing a

petition for writ of certiorari, pursuant to 28 U.S.C. §

1447(b). Section i447(b) provides that, as part of the

“procedure after removal generally” (emphasis added), the

district court “may require that removing party to file with its

clerk copies of all records and proceedings [in the state court]

or may cause the same to be brought before it by writ of

certiorari issued to such State court.” 28 U.S.C. §1447(b).

Although this defect is merely procedural, hence correctable,

the filing of these documents is required because it is the

state law complaint to which the court looks to determine

whether it has jurisdiction over the removed action.

Page A-16

_ enough for removal that the plaintiff might have alleged a

federal claim. See Karambelas v. Hughes Aircraft Co..

. - - ,

992 F.2d 971, 975 (9" Cir. 1993). Without more, the

removing parties cannot meet their burden of establishing

removal jurisdiction in the present case.

The removing parties shall file a copy of this order on

all other parties in the consolidated state court actions, no

later than March 29, 2004. In addition, the removing parties

are hereby ordered to include, with their response to this

order to show cause, a proposed amended notice of removal.

Any other party to either state court case may file a response

to the removing parties’ papers, no later than April 26, 2004.

IT ISSO ORDERED.

Dated: March 23, 2004

PHYLLIS J. HAMILTON

United States District Judge

Page A-17

[Order dated Jul 16, 2004 of District Judge Hamilton]

NOT FOR CITATION

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA _

QAD INC., et al.,

Plaintiffs No. C 04-1806 PJH

¥i

MANI SUBRAMANIAN, ét al., ORDER GRANTING

Defendants MOTION TO REMAND

AND DENYING

MOTION FOR FEES

/

The motion of QAD, Inc.; QAD Japan K.K.; QAD

Japan Inc.; John Doordan; and Lai Foon Lee (“the QAD

parties) and Arthur Anderson LLP for an order

remanding the above entitled action to the Superior

Court of California, County of Santa Clara, came on for

hearing before this court on July 16, 2004. The QAD

parties appeared by their counsel William D. Connell,

Arthur Anderson LLP appeared by its counsel Fred

Fields, removing parties Vedatech, Inc., and Vedatech

K. K. appeared by their counsel Christina Gonzaga, and

removing party Mani Subramanian appeared in pro per.

Having read the parties’ papers and carefully

considered arguments and the relevant legal authority,

and good cause appearing, the court hereby GRANTS

Page A-18

the motion to remand tor lack of subject matter

jurisdiction. As was true when this same action was

removed as case No. C-03-1035 PJH, the present notice

of removal does not establish the existence of a federal

question.

The motion for fees and costs is DENIED. However.

should removing parties remove this action yet another

time, the court will invite the QAD parties and Arthur

Anderson to file a motion for sanctions under Federal

Rule of Civil Procedure 11.

IT IS SO ORDERED.

Dated: July 16, 2004

laf

iat

PHYLLIS J. HAMILTON

United States District Judge

Page A-19

[Order dated Jul 06, 2004 of District Judge Hamilton}

NOT FOR CITATION

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

QAD INC., et al.,

Plaintiffs No. C 04-1806 PJH

V.

MANI SUBRAMANIAN, etal. = ORDER RE

Defendants MISCELLANEOUS

/ REQUESTS

The request by removing parties Vedatech, Inc.,

Vedatech K.K., and Mani Subramanian for leave to file a

motion for reconsideration or the order relating the above-

entitled action to case No. C-04-1035 PJH is DENIED. It is

true that the removing parties did not file a notice of related

case stating that the present action was related to the

remanded case, C-04-1035 PJH, but instead filed a notice

stating that the present action was related to a case assigned

to Judge Vaughan R. Walker, C-04-1249 VRW. However, in

preparing the related case order, the clerk’s office added C-

04-01035 PJH to the list of possible related cases,’ on the

basis that C-04-1806 was the identical case that had

previously been remanded in it incarnation as C-04-1035

JH. The Court then properly ordered C-04-1806 related to

C-04-1035 PJH on the same basis.

Page A-20

In seeking leave to file a motion for reconsideration,

the removing parties have not met the standard set forth in

Civil Local Rule 7-9. Specifically, the removing parties have

not established

(1) That at the time of the motion for leave, a material

difference in fact or law exists from that which

was presented to the Court before entry of the

locutory order for which reconsideration is sought

ae

(2) The emergence of new material facts or a change

of law occurring after the time of such order; or

(3) A manifest failure by the Court to consider

material facts or dispositive legal arguments

which were presented to the Court before such

interlocutory order

Civ. L-R 7-9(b).

The removing parties’ request that the undersigned

district judge recuse herself from presiding over the above-

entitled action is DENIED. The removing parties have not

met their burden under either 28 U.S.C. § 455(a) or 28 U.S.C.

§ 144. Under either statute, recusal is appropriate only if “a

reasonable person with knowledge of all the facts would

conclude that the judge’s impartiality might reasonably be

questioned.” Yagman v. Republic Ins., 987 F.2d 622, 626 (9"

Cir. 1993) (quotation omitted). Because a federal judge is

presumed to be impartial, the party claiming bias bears a

substantial burden to show that the judge is not impartial.

Page A-21

Reiffin v. Microsoft Corp., 158 F. Supp.2d 1016, 1021-

- Te NT AEE DT SEs: Bale TARY Sate ey Jat 3 ate

22(N.D. Cal. 2001).

Here, the removing parties assert that “resolution of

QAD's remand motion (and ...the motion for fees and costs)

depends critically on a decision whether the April 29, 2004,

order is ambiguous and if so what objective readings/

interpretations it permits.” They submit further that “[a]ny

additional reasoning or explanation that may be provided

now, or any influence of reasoning that is not captured in the

order would prevent a fair decision from being rendered on

the matter currently before the court.” The removing parties

do not, however, provide any substantive explanation of this

alleged judicial bias or any examples illustrating such bias.

Essentially, they seem to be arguing that the undersigned,

having previously remanded the identical action (under a

different case number), should not now be permitted to

consider whether the same action (under a new case number)

should be remanded.

“Bias or prejudice” connotes “a favorable or

unfavorable disposition or opinion that is somehow wrongful

or inappropriate, either because it is undeserved, or because it

rests upon knowledge that the subject ought not to

possess. ..or because it is excessive in degree.”

Liteky v. United States, 510 U.S. 540, 550 (1996). Adverse

rulings, even if erroneous, generally do not provide a basis

for disqualifying a judge under either § 144 or § 455. See

Page A-22

United States v. Grinnell Corp.. 384 U.S. 563, 583 (1966)

(“alleged bias or prejudice to be disqualifying must stem

from extrajudicial source’); see also Leslie v. Grupo ICA,

198 F.3d 1152. 1 160(9" Cir. 1999) (court's adverse rulings

are not adequate basis for recusal); Toth v. TWA. Inc., 862

F.2d 1381 (9" Cir. 1988) (same).

The removing parties have not established the

appearance of bias, let alone actual bias. Judicial rulings

occurring in the course of a judicial proceeding will “almost

never” provide a basis for a recusal motion. Liteky, 510U.S.

at 555. Such a motion will be proper only if the rulings

“display a deep-seated favoritism or antagonism that would

make fair judgement impossible.” Id. The removing parties

provide no evidence of any deep-seated favoritism or

antagonism that stems from an extrajudicial source, and have

not established that there is a reasonable question that the

undersigned has a wrongful or inappropriate predisposition

toward said removing parties.

The removing parties’ request for a stay of the present

action pending the Ninth Circuit’s resolution of defendants’

appeal of the April 29, 2004, order remanding case No. C-04-

1035 PJH is DENIED. The removing parties have not

established good cause for such a stay; rather, they simply

assert that the court should grant the request” [f]Jor the same

reasons” cited in support of the request for recusal.

The removing parties’ request for a continuance of

the hearing on plaintiffs’ motion to remand the above entitled

Page A-23

action and plaintiffs’ motion for fees and costs is

GRANTED. The hearing date is hereby CONTINUED to

Wednesday, July 14, 2004, at 9:00 a. m.

IT IS SO ORDERED.

Dated: July 6, 2004

/s/

PHYLLIS J. HAMILTON

United States District Judge

Page A-24

28 U.S.C. § 1447. Procedure after removal generally

[..,subsections (a) and (b) omitted...|

(c) A motion to remand the case on the basis of any

defect other than lack of subject matter jurisdiction must

be made within 30 days after the filing of the notice of

removal under section 1446 (a). If at any time before

final judgment it appears that the district court lacks

subject matter jurisdiction, the case shall be remanded.

An order remanding the case may require payment of

just costs and any actual expenses, including attorney

fees, incurred as a result of the removal. A certified copy

of the order of remand shall be mailed by the clerk to the

clerk of the State court. The State court may thereupon

proceed with such case.

(d) An order remanding a case to the State court from

which it was removed is not reviewable on appeal or

otherwise, except that an order remanding a case to the

State court from which it was removed pursuant to

section 1443 of this title shall be reviewable by appeal or

otherwise.

[...subsection (e) omitted... |

Page A-25

ne aE

eee AD

28 U.S.C. § 1441. Actions removable generally

[...subsection (a) omitted...|

(b) Any civil action of which the district courts have

original jurisdiction founded on a claim or right arising

under the Constitution, treaties or laws of the United

States shall be removable without regard to the

citizenship or residence of the parties. Any other such

action shall be removable only if none of the parties in

interest properly joined and served as defendants is a

citizen of the State in which such action is brought.

(c) Whenever a separate and independent claim or cause

of action within the jurisdiction conferred by section

1331 of this title is joined with one or more otherwise

non-removable claims or causes of action, the entire

case may be removed and the district court may

determine all issues therein, or, in its discretion, may

remand all matters in which State law predominates.

[...subsections (d) and (e) omitted...|

Page A-26