Appendix — Thanh Vong Hoai v. Thanh Van Vo

————————

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1991

THANH VONG HOAI, JOHN D. HEMENWAY, DAVID

HEMENWAY

Petitioners,

THANH VAN VO, MILLARD F. OTTMAN, DAVID C.

ROSEMAN, JONES, DAY, REAVIS & POGUE, J.

GORDON FORESTER, JR., GEOFFREY WAGNER,

JOSEPH ZULLI, SUN REFINING & MARKETING

COMPANY, INC.

Respondents.

Appendix 2 to

Petition for a Writ of Certiorari to the

United States Court of Appeals for the

District of Columbia Circuit

Laurence A. Elgin

8929 Sleaford Place

Annandale, Virginia

22003

(202) 628-1114

TABLE OF CONTENTS

APPENDICES I, II AND III

Opinion, United States Court

of Appeals for the District

of Columbia

Order, United States District

Court for the District of

Columbia

Memorandum, Louis S. Oberdorfer,

United States District Judge,

United States District Court

for the District of Columbia

Order, Petition for Rehearing

Order, Appellants' Suggestion

for Hearing En Banc

Transcript, Oral Argument

Before Panel of the United

States Court of Appeals for the

District of Columbia

Civil Docket for Case # 89-CV-2397,

U. S. District Court

for the District of Columbia

Plaintiffs' Motion for a Stay

Pending Resolution of a Question

of Federal Rights

Order, United States District

Court for the District of

Columbia

Plaintiffs' Memorandum of Points

and Authorities in Support of:

Plaintiffs' Motion for a Stay

Pending Resolution of a

Question of Federal Rights

A-107

A-135

A-143

A-147

Plaintiffs' Motion for an

Indefinite Stay

Order

Plaintiffs' Memorandum of

Points and Authorities

in Support of: Plaintiffs'

Motion for an Indefinite Stay

Record on Appeal from the United

States District Court for the

District of Columbia

Statement of the Issues Presented

for Review, United States Court

of Appeals for the District

of Columbia

Reply Brief of Appellants Thanh

Vong Haoi, David Hemenway and

John Hemenway Replying to Brief

for Appellees Jones, Day, Reavis

& Pogue, Millard F. Ottman, Jr.

and David C. Roseman

Reply Brief of Appellants Thanh

Vong Hoai, David Hemenway and

John Hemenway Replying to Brief

for Appellees Sun Refining and

Marketing Company, J. Gordon

Forester, Jr., Jeffrey Wagner

and Joseph Zulli

Complaint, Hoai et als

v. Vo et als

Supplement to the Motion for

Sanctions on Behalf of Sun

Refining amd Marketing

Company

Extract, Deposition of Ernest Peele

ii

A-181

A-185

A-187

A=-193

A-205

A-289

A-329

A-371

A-405

A-413

Transcript, Hearing before the

Honorable Annice Wagner,

Judge, Superior Court of the

District of Columbia,

Civil Division

Temporary Restraining Order,

Superior Court of the

District of Columbia,

Civil Division

Consent Order for Extension

of Temporary Restraining Order

as to Defendant Sun Refining

and Marketing Co.

Affidavit of Jeffrey W. Wagner

Motion to Dismiss of Defendants

Millard F. Ottmann, Jr., David

C. Roseman, and Jones Day,

Reavis & Pogue

Memorandum of Defendants Millard

F. Ottman, Jr., David C.

Roseman, and Jones, Day, Reavis

& Pogue in Support of Motion

to Dismiss

Docket, U. S.. District Court

District of Columbia

(Washington), Case #

887-CV-2456

General Docket, United States

Court of Appeals for the

District of Columbia,

90-7170 (Stamp)

Appeal from the District Court

lil

A-417

A-461

A-475

A-479

A-537

A-566

Oral Argument scheduled for

May 13, 1991, 9:30 am

IN THE UNITED STATES COURT OF APPEALS

FOR THE DITRICT OF COLUMBIA ai

RECORD NO. 90-7170

THANH VONG HOAI, et al.,

Appellants,

Vv.

THANH VAN VO, et al.,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT

FOR THE DISTRICT OF COLUMBIA

BRIEF FOR THE APPELLANTS THANH VONG HOAI

AND DAVID HEMENWAY AND JOHN HEMENWAY

Laurence A. Elgin

8929 Sleaford Place

Annandale, Virginia 22003

(703) 425-7879

John D. Hemenway

4816 Rodman St., N.W.

Washington, D.C. 20016

(202) 244-4819

Attorneys for Appellants.

February 27, 1991

o

aol Du

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

THANH VONG HOAI,

et al., Appellants,

Vv. USCA No. 90-7170

THANH VAN VO,

et al., Appellees.

eee eee ee eee ea ee ee ae ae ae ae ease ee

ater ere ere ere ere rr Ee ere ree ee re Ee Ee Ee ee Ee EE ES SE ee ee EE EE See

CERTIFICATE AS TO PARTIES, RULINGS, AND

RELATED CASES

A. PARTIES AND AMICI

Appellants and Plaintiffs below:

Thanh Vong Hoai, David Hearn Hemenway, and

John D. Hemenway.

Appellees and Defendants below:

Thanh Van Vo [we have no information what-

scever concerning Vo's alleged alias of

"Thoi Van Vo"], Millard Ottman, Jr., David

C. Roseman, Jones, Day, Reavis & Pogue, J.

Gordon Forester, Jr.; Geoffrey Wagner,

Joseph Zulli, and Sun Refining and Market-

ing Co.

B. RULINGS UNDER REVIEW

-l-

nel y5

The Memorandum and Order signed

October 1, 1990, but filed October 2, 1990

by Judge Louis F. cherécrter of the United

States District Court for the District of

Columbia in CV 89-2387 dismissing the ap-

pellants' civil rights action and requir-

ing the counsel for the appeilants to

state why they should not be held for

sanctions under Rule 11 without stating

any specific reasons.

There is a related Memorandum and

Order of October 1, 1990, but filed on Oc-

tober 1, 1990, also by Judge Louis F.

Oberdorfer of the United States District

Court, granting the chief plaintiff in the

civil rights case judgment on the merits

in a Petroleum Marketing Products Act

(PMPA) case which is not being presented

for review, but which is related because

the decision on the merits had important,

even a dominant effect upon certain

aspects of the civil rights decision upon

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a-196

which review is requested in that the same

actors, facts and issues are bound togeth-

er. Admittedly, the actors shift roles

somewhat, but it is important to know

about this case, too, which already has

been before this court and in which the

plaintiffs in the civil rights case

prevailed. See: Thanh Vong HOAI, Appel-

lant, v. SUN REFINING AND MARKETING COMPA-

NY, INC., 275 U.S. App. D.C. 397 (1989).

Since the decision by J. Oberdorfer on the

civil rights cause of action was made the

very same day (filed the next day) as the

PMPA decision on the merits favoring the

plaintiffs, the civil rights plaintiffs

never received any kind of a hearing, op-

portunity to amend, or due process in the

sense that the procedures for a Motion for

Summary Judgment should have been followed

instead of the rules applying to a Motion

to Dismiss, which was not done, despite

the fact that extensive materials outside

the pleadings were considered and cited by

the trial judge in his memorandun.

C. RELATED CASES

The closely related case of Hoai v. Sun

Refining, referred to above has been be-

fore this Court previously. There is also

pending before the Superior Court of the

District of Columbia a case which is

stayed pending the outcome of the federal

PMPA case of Hoai v. Sun Refining,

USDC(DC) CA 873-2456, which has been be-

fore this Court, as noted above. The Su-

perior Court case initiated all of the

litigation connected with the fact pat-

terns common to the several actions but

was found not to be co-extensive when the

case was examined by this Court, in Judge

Edwards written memorandun. (See Hoai v.

Sun Refining and Marketing Company, Inc.,

at p. 401.) The D.C. Superior Court case

is captioned: Thanh Van Vo v. Sun Refining

-4-

a-193

and Marketing Co., et al., (CA 7075-86),

Superior Court, District of Columbia. Ad-

ditionally, a R.I.C.0. case brought by Sun

Oil franchisee Hoai against Thanh Van Vo

and certain other parties in the United

States District Court (EDVa.) was dis-

missed on the premise the "enterprise"

consisted of only one criminal action,

whereas, two or mere were required (at

that time, evidently no longer) for conm-

mencing a R.I.C.O. action. That case,

however, did not include any of the appel-

lees in this case except for the principal

actor who this train of litigation in the

Superior Court, i.e., Thanh Van Vo and was

brought to the attention of this Court

during the oral arguments heard on Decem-

ber 12, 1988.

Respectfully submitted,

FOR THE PLAINTIFFS

[SIGNATURE ]

John D. Hemenway DC#379663

4816 Rodman St., N.W.

Washington, D.C. 20016

(202) 244-4819

j

ui

!

[ SIGNATURE]

Laurence A. Elgin DC#159582

8929 Sleaford Place

Annandale, Virginia

(703) 425-7879

22003

Certif

and Re

Table

Table

Statem

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V iA

QAmmoONWw YS

H.

Conclu

TABLE OF CONTENTS

icate as to Parties, Rulings

lated Cases

of Contents

of Authorities

ent of Issues Presented

Statement of the Issues

Presented for Review

Statement of the Case

A. Nature of the Case

B. Course of the Proceedings

C. Relevant Facts

urisdiction

ummary of the Argument

rgument

42 U.S.C. 1983

Attorneys as Parties

42 U.S.C. 1985(2)

42 U.S.C. 1985(3)

42 U.S.C. 1981

42 U.S.C. 1982

The Conversion to Summary

Judgment

Chilling with the Show Cause

sion

"ha &

CASES

Browning-Ferris Industries, Inc. v.

Kelco Disposal Inc. (1989)

109 SCt 2902 47

City of Long Beach v. Bozek

(1982) 31 Cal 3d 527, 183

Cal Rptr 86, 645 P2d 137 29

*Cooter & Gell v. Hartmarx

Corp. (1990) 110 SCt 2447, 2554 37

*Gardels v. Central Intelligence

Agency (CA DC 1987) 637 F2d 770 36

Griffin v. Breckenridge (1971)

403 US 88, 91 SCt. 1970 33

Hoai v. Sun Refining & Market-

ing Co., Inc., (CA DA 1989)

866 F2d 1515 6

Hobson v. Wilson (CA DC 1985)

737 F2d 1, cert den. 470 US 1084 33

Imbler v. Pachtman (1976) 424 US 409;

196 SCt 984, 47 Led2d 128 30

In Re Kelly (CA7 1986) 808 F2d

549, 552 38

In re Primus (1978) 436 US 412,

56 Led2d, 98 SCt 1893 29

*Lugar v. Edmondson Oil Co. (1982)

457 US 922 4,426,247

Oliveri v. Thompson (CA2 1986)

803 F2d 1265 41

n=-202

Rowland v. Fayed (D DC 1987)

115 FRD 605, 608 40

Tarpley v. Greene (CA DC 1982)

684 F2d l 36

*Tele-Communications of Key West, Inc.

v. United States 1 Fed Rul Serv 3d

960, 756 F2d 1330 (CA DC 1985) 25

Tom Growney Equip. v. Shelley Irr

Development (CA9 1987) 834 F2d 833,

836 40

White v. New Hampshire Dept. of

Employment Security (1982) 455 US

445, 71 Led2d 325 41

STATUTES

Federal Petroleum Marketing

Practices Act (PMPA) (15 U.S.C.

2801 et seq. ad seriatim

42 U.S.C. 1985 (2) ad seriatim

42 U.S.C. 1985 (3) ad seriatim

42 U.S.C. 1981 ad seriatim

15 U.S.C. 2805 (d) 13

28 U.S.C. 1343 23

28 U.S.C. 1331 25

28 U.S.C. 2201 25

28 U.S.C. 2202 25

42 U.S.C. 1983 25,26,27.29

42 U.S.C. 1985 (3) 25

42 U.S.C. 1982 ad seriatim

OTHER AUTHORITIES CITED

Rule 56 (f) 4,56

Rule 60 43

First Amendment 5

Rule 12 (b), (b) (6) ad seriatim

Rule 11 13

* Cases most relied upon

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

THANH VONG HOAI, )

et al., Appellants, )

v. ) USCA No. 90-7170

)

)

)

THANH VAN VO,

et al., Appellees.

I. STATEMENT OF THE ISSUES PRESENTED FOR

REVIEW

1) Whether in 1986 provisions of Local

Rule 12-I(b) (i) of the Superior Court of

the District of Columbia, (which provided

for virtually unfettered ex parte deci-

sions) created, along with certain other

regulations, customs and usages of the

District of Columbia, a situation like

that of the Virginia pre-judgment attach-

ment statute in Lugar v Edmondson Oil Co.

(1982) 457 US 922 so as to subject the

private party defendants here to liability

for their use of that rule and procedures

to deprive plaintiffs below of federal

constitutional and statutory rights, in-

cluding:

A) due process,

B) equal protection,

C) to petition for the redress of

grievances,

D) to freely associate as client and

counsel and as client to have counsel

E) as principal and agents, to not

have a valuable gas station franchise

terminated illegally in violation of the

Federal Petroleum Marketing Practices Act

(PMPA) (15 U.S.C. 2801 et seq.),?+

F) not to be injured in their person

or property for being a party ina federal

court and attending and testifying fully

therein under 42 U.S.C. 1985(2),

G) to be free of 1985(3) conspiracies,

H) to enforce a contract under 1981

and

lfhat there was such a violation by the

defendant Sunoco is now a matter of res

judicata in the related case which was

formerly before this Court on intermediate

appeal on the question of abstention.

-2-

a=206

I) to lease and hold property under

1982,

J) to have a valid bond for security

as part of due process whenever property

and rights are preliminarily interfered

with.

2) Whether private attorneys are li-

able when using a Lugar-like procedure to

deprive persons of such rights on behalf

of their clients when they know or have

reason to know that what they are doing is

a deliberate use of the court's procedures

and the color of its authority to deprive

the plaintiffs of due process and the

other rights set out above ?

3) Whether private attorneys are li-

able when they use such procedures mali-

ciously and willfully including the use of

false representations and other im-

proprieties ?

4) Whether parties who conspire to-

gether to injure other parties in their

—

a=207

property for having previously attended

and testified at a hearing in a federal

court are liable to those parties under 42

U.S.C. 1985(2) ?

5) Whether parties who seek to bar

equal rights to a minority group member

because he is a member of his own minority

group by cooperating with another member

of that same ethnic minority where the

latter individual is part of a group

within that minority population that ap-

pears to be using classic techniques of

extortion and threats to dominate its own

ethnic group members by "private justice"

which has the effect of barring members of

the ethnic minority from equal access to

American justice, are liable for 42 U.S.C.

1985(3) violations ?

6) Whether such activity used to pre-

vent the enforcement by the ethnic minori-

ty group plaintiff and the non-minority

people assisting him of a valuable service

-4-

n=208

station franchise contract makes the

parties liable under 42 U.S.C. 1981 ?

7) Whether such activity used to pre-

vent the plaintiff and those assisting him

from exercising the right to lease and

hold property violates 42 U.S.C. 1982 ?

8) Whether the lawyers who participate

in these activities are liable even if

they act maliciously and willfully and are

charged with a knowledge that their acts

are wrongful as evidenced by their acts

and deeds, including false representations

and deceit upon the court ?

9) Whether, where a judge has before

him two related cases, one of which seeks

42 U.S.C. 1983 and other civil rights

relief which would be greatly affected by

the outcome of the other suit, and the

other suit, which is under 15 U.S.C. 2801

et seq. is awaiting cross summary judg-

ments, and the parties plaintiff move for

stays in the civil rights suit pending the

outcome of the summary judgment motions in

the other suit, is it error for the judge

handling both suits to grant the plaintiff

in both suits summary judgment in the PMPA

case and then not allow any time to the

plaintiff and his co-plaintiffs to amend

matters in the civil rights suit in order

to incorporate the effects of the PMPA

judgment as anticipated before dismissing

the civil rights suit ?

10) Whether, in the above situation it

is error for the court to ignore the mo-

tions for stay in the civil rights case,

convert the dismissal motions to summary

judgment motions by entertaining and con-

sidering matters outside the record

without warning or notice and on the same

day that it grants the summary judgment

victory to the plaintiff in the PMPA ac-

tion dismiss the civil rights action of

that same plaintiff and his two agents ?

-6-

a-210

11) Whether, in the above situation,

it is error for the court to convert the

dismissal motion to summary judgment

without the fact statement required by lo-

cal rules or without any further op-

portunity to develop or present facts or

without opportunity to amend or to even

request any discovery pursuant to Rule

56(f) or to modify pleadings and any hear-

ing, contrary to a practice established

over three years of litigation ?

12) Whether, where, simultaneously and

as part of the dismissal order of the

civil rights case the court, at the end of

its memorandum, issues an unspecified show

cause to the attorneys of the successful

party plaintiff in the PMPA case to show

why they shouldn't be sanctioned the same

is error because of other factors which

indicate, considered objectively, that the

court has as its intention, the control of

the plaintiffs' overall litigation in the

manner that General Powell stated he was

going to treat the Iraqi army in Kuwait ?

13) Whether the use of a show cause

for sanctions as an integral part of this

dismissal order violates the established

law on what the sanctions rule and

statutes should not be used for and vio-

lates first amendment and due process

rights and, potentially, at least the

right to be free of the threat of ex-

cessive fines of an amercement type under

the excessive fines clause of the Eighth

Amendment ?

II. STATEMENT OF THE CASE

A. NATURE OF THE CASE

This is an appeal from an order of the

lower court, accompanied by a memorandum

opinion, which dismissed a civil rights

complaint filed by the plaintiffs/ appel-

lants pursuant to motions brought pursuant

to Rule 12(b), ostensibly on Rule 12(b) (6)

grounds. The order and memorandum were

aha

aA=-212

Signed on October 1, 1990 and filed the

next day. (V.2, JA, 786, 778-85) Though

the motions were dismissal motions, filed

principally pursuant to Rule 12(b) (6),

materials outside the record, including

affidavits, were filed and not excluded

and were considered in forming the

memorandum opinion. However, none of the

requirements surrounding summary judgment

motions, including filing the required

fact statement, were observed.

The underlying factual situation is

related to another cause, also before the

same court below, which also has previous-

ly been before this Court. That is the

related case of Hoai v Sun Refining &

Marketing Co., Inc., a case under the

Petroleum Marketing Practices Act (PMPA)

15 U.S.C. 2801 et seq. In that case Sun

had used the device of a “consent order"

between itself and a man named Vo, also

Vietnamese like Hoai, which purportedly

-9=-

was an extension of a TRO issued by a

judge of the Superior Court of the Dis-

trict of Columbia to take a franchise away

from its franchisee, the plaintiff Hoai

(also the principal plaintiff here) and

give it to Vo. Plaintiff/appellant Hoai

in that case sued upon that as a termina-

tion of his franchise. That case was

previously before this court on an inter-

mediate appeal. Hoai v Sun Refining &

Marketing Co., Inc. (CA DC 1989) 866 F2d

1515. In that intermediate appeal this

Court decided that the court below had im-

properly sua sponte abstained from decid-

ing the PMPA case on the theory that it

should have been decided in the Superior

Court of the District of Columbia.

After that decision and upon remand, on

March 27, 1989, the plaintiff Hoai in that

case moved for summary judgment on the

question of liability only because this

Court's opinion made it clear that since

—T

a-214

the “consent order" in the Superior Court

did not represent any independent judgment

of a judge of that court the use of it to

take the gas station franchise in question

was a termination under the PMPA. On Oc-

tober 1, 1990 that motion was decided in

favor of the plaintiff Hoai, also the

principal plaintiff/appellant in this

case. This was the same day as the dis-

missal order and memorandum appealed from

in this case were handed down. So that

the court below decided them in coordina-

tion.

Both of these federal suits were

reluctant and rather later in the day and

grew out of incidents in which the man Vo

sued Hoai, Hoai's attorney and Hoai's at-

torney's son in the Superior Court of the

District of Columbia in violation of a

settlement agreement, the evidence of

which is in the record now of the Superior

Court case, under which Sun agreed to and

-lljl-

did award the gas station franchise to

Hoai. Those same three individuals are

the plaintiffs/appellants in this cause

and this cause also grew out of what hap-

pened in the Superior Court in 1986-87 (CA

7075-86). The PMPA case was brought in

the court below because the statute of

limitations was running and action in dis-

posing of the suit against the three pres-

ent plaintiffs/appellants in the Superior

Court was stalled.

Similarly, this suit was brought in

this court as the three-year statute of

limitations was running out in August of

1989, after the judges of the Superior

Court made it known on the record that

they would prefer that federal questions

be settled in the federal courts and had

in fact stayed action in that court on Mr.

Vo's claim, which was originially princi-

pally against Sun and the three

plaintiffs/appellants herein. Thus this

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A=216

a i a

Suit was brought as the statute was run-

ning and while the principal plaintiff

herein was awaiting a decision on his sun-

mary judgment motion resulting from this

Court's decision in his PMPA case. As

with the earlier filing of the PMPA case

the plaintiffs herein only filed this

cause because earlier, in 1987, when they

had removed the Superior Court case to the

federal court, Judge Sporkin of this Court

had remanded it, failing to discern the

cardinal importance of the PMPA issues.

The theory of this case is that the

action of obtaining the consent order in

the Superior Court, which was achieved ex

parte under a rule of that court, since

repealed, that took place on September 8,

1986 and terminated the franchise of Hoai

(as is now res judicata), along with

certain other actions that were taken in

order to set up that possibility and

others, subsequently taken, to preserve

-13-

Ao?’ 7

it, violated the civil rights of Hoai, as

the principal plaintiff, and of his at-

torney and his attorney's son, who were

acting as his agent. In particular, to

the extent that the rules and procedures

of the court were used to achieve the tak-

ing of the gas station franchise from Hoai

and give it to Vo 42 U.S.C. 1983 was vio-

lated. Due process and the violation of

the PMPA rights of Hoai and his agents

were the most prominent of the federal

rights violated under this color and

authority of D.C. law. Although the PMPA

clearly preempts all state and common law

remedies in the area of termination or

nonrenewal of a franchise (at least be-

tween the same parties) (15 U.S.C.

2806(a)) it does not appear in any way to

preempt other violations of federal

statutory rights that overlap with the

rights it establishes and involve, as

here, other parties in addition to the

atin

A=-218

0

two, the franchisor and franchisee, af-

fected by the jurisdiction created by the

PMPA.

To the extent that the ex parte action

which resulted in the taking of the fran-

chise from Hoai and giving it to Vo was

intended to harm Hoai and his agents in

their property for their having stood up

to Vo at the TRO hearing and testified to

his attempted violence and threats of

violence (while Vo sat there and declined

to testify) 42 U.S.C. 1985(2) was vio-

lated.

To the extent that it was known to the

defendants that Hoai had been threatened

by Vo and victimized by Vo's fraudulent

and extortionate acts, or they had reason

to know it, and they knew, therefore, that

Vo was barring Hoai from equal access to

justice because Hoai was Vietnamese and Vo

and his colleague Thach and others of such

an ethnic "gang" preyed upon their own,

-15-

and to the extent that they joined in that

activity by choosing Vo over Hoai 1985(3)

was violated. (See affidavit of Hoai as

filed below, generally, JA Vol. III, para.

1121-1390, especially paras. 1353-1356).

Similarly, although not mentioned in

the first complaint? the prevention of the

plaintiffs/appellants' attempts to enforce

Hoai's franchise contract violated section

1981 and the interference with the leasing

and holding of the franchise arguably vio-

lated 1982. Several Bivens type direct

violations of constitutional rights were

also alleged, though not as separate

counts

All of this centered around the use of

the D.C. court's rules to eliminate Hoai's

counsel, its case law and rules to elevate

local landlord and tenant law above the

-Plaintiffs/appellants were allowed no

chance to amend, one of their complaints

of error in this appeal, but they did sub-

sequently propose to amend in connection

with a Rule 60(b) motion.

-16~

PMPA, its judge in chambers rule to extend

the TRO ex parte without notice or due

process for the real party in interest.

Then there was the practice and custom of

that court that allowed the defendants to

"post the bond" required by the TRO as a

precedent condition with an NSF check

drawn on the account of the plaintiff

Hoai's own gas station, which the

defendant Vo had taken over in violation

of the PMPA. (Vol. II, JA para.1097-1102)

Further, the bond, when it was finally

really posted, after the TRO was over, was

then allowed, under the custom and rules

of that court, to be withdrawn so that it

served as no security and no guarantee of

due process whatsoever, constituting a

further violation of due process.

As noted in the earlier case before

this Court, the plaintiff appealed this

o17=

matter to the D.C. Court of Appeals and

raised all the constitutional issues and

Civil rights issues. But that court simp-

ly waited until the "extension" of the TRO

was over and then declared the matters

moot and dismissed the appeal as such,

stating that no decision on the merits had

been made. In their arrogance of their

control of that court's processes for

their purposes, the defendants Vo,

Roseman, Otman and Jones, Day filed a show

cause against the defendants, falsely ac-

cusing them of violating the TRO. But

when plaintiffs herein used that to chal-

lenge the legal sufficiency and merits of

the TRO, as is proper, that court denied

that without comment.

B. COURSE OF PROCEEDINGS

After the plaintiffs below, Hoai

and the Hemenways, filed their complaint

in this suit against the defendants, all

of the defendants moved to dismiss, prin-

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a=222

cipally under Rule 12(b)(6) for failure to

state a claim. Though filed as such dis-

missal motions these motions relied upon

affidavits and extensive matter outside of

the pleadings. (Vol. I, JA para. 82-400)

The Sunoco defendants in the civil rights

case, Sunoco and its lawyers who were

responsible for the actions in the Supe-

rior Court also moved for sanctions. (Vol.

I, JA para. 492-513) Their sanctions mo-

tion relied in part upon an assumption

that Sunoco, and not Hoai, would win sum-

mary judgment in the PMPA case and

castigated Hoai's PMPA case as being as

meritless as the civil rights case was al-

leged to be. The attorney for Vo filed a

sanctions motion as well which merely

referred to that of the Sunoco defendants

and invoked it, requesting the same. (Vol.

III, JA p.1599, lines 15-17).

At the time, of course, the plaintiff

Hoai was awaiting decision on his summary

-|19-

A=-c< 4

judgment motion in the related PMPA case

which, because of the earlier decision of

this Court, he was confident, correctly as

it turned out, he would win. Therefore,

after initial, somewhat sketchy opposi-

tions to these motions, plaintiff Hoai and

his fellow plaintiffs, the Hemenways,

moved for two stays. First they moved for

a stay until the summary judgment in the

related PMPA case was decided because it

was clear that the resolution of that case

would do much to answer the 42 U.S.C. 1983

question in particular, not only as to

whether or not the use of the color and

authority of the D.C. Court had violated

plaintiff Hoai's PMPA rights but also

other rights. (Vol. III, JA para. 1410-

1439) Then, further study showed that the

resolution of the question of the termina-

tion under the PMPA would also affect

greatly the other civil rights claims,

principally because it would establish

=20@-

AW224

whether or not Vo was a mere scrambler or

had any pretext to own the franchise.

(Vol. III, JA para 1435-1441) These mo-

tions, which were filed in January of

1990, were obviously intended to obtain a

reasonable pause between the time of

deciding of the PMPA summary judgment mo-

tion in the related case and the finaliza-

tion of the briefing on the dismissal mo-

tions in this case which were obviously in

reality summary judgment motions and would

have properly required conversion, includ-

ing fact statements and the other

safeguards of summary judgment. These

stay motions were opposed but were never

ruled upon.

Instead, after much time had passed,

on October 1, 1990 the court below decided

both cases on the same day. (Vol. II, JA,

p. 786) In the PMPA case the plaintiff

Hoai obtained his summary judgment and the

cross-motion of Sunoco was denied. [In the

-2 l=

civil rights case the dismissal motions

were all granted and the court, citing the

sanctions motions filed by Sun, Vo and

Sunoco's attorneys, as an integral part of

its order dismissing the civil rights

case, gave the plaintiffs attorneys, not

the plaintiff, a little short of three

weeks to show cause why they should not be

sanctioned although just what it was that

violated either Rule 11 or Rule 28 U.S.C.

1927 was not specified. (Vol. II JA p.

786) Since the sanctions motions had been

based in significant part upon the in-

correct assumption that Sunoco would

prevail over Hoai in the PMPA case this

made it difficult to respond. (Vol. I JA

p. 510, lines 10-14) The memorandum

opinion itself was taken almost exclusive-

ly from the dismissal brief of the Jones,

Day defendants, who had filed no sanctions

motion at that time.

-22-

A=226

Immediately upon announcing the sun-

mary judgment for Hoai in the PMPA case

the court held a status conference during

which the court below invited Sunoco to

file a motion before trial to limit the

scope of the damages which Hoai might ob-

tain as a result of his summary judgment

on the question of liability in the PMPA

case. This was done despite the fact that

the PMPA, at 15 U.S.C. 2805(da) specifies

that actual damages will be consistent

with the federal rules which only allow

such motions after trial.

When in this civil rights case the

plaintiffs filed a rule 60 motion for

reconsideration the Jones, Day defendants,

seeing how the court was viewing things,

joined with another sanctions motion. The

Sunoco defendants filed a further request

for sanctions in which they urged the

court to assess the counsel for plaintiffs

millions of dollars for talking to a men-

-23-

=

errr eee

ber of the oil trade press who called them

about this case. (Vol III JA, p. 1636)

On February 1, 1991 the court below held a

hearing on the show cause which was part

of the order and memorandum opinion being

appealed and announced, among other

things, in connection with its considera-

tion on what it was going to do about the

sanctions motions against the plaintiffs

and the show cause which it had issued,

that "I want to get this done. What was

it that General Powell said ?" (Vol. III

JA p.1592, lines 22-33) This, we ask the

Court to note, was only a few nights after

General Colin Powell, the United States

Chief of Staff of the Joint Chiefs, had

announced to the entire nation, in

response to a question about the Iraqi

army in Kuwait, that he was going to cut

that army off and kill it. The court be-

low's invocation of this statement was in

response to a comment by the attorney for

atga

A=-228

— EEEOEOEOEeeeeeeeee

the Jones, Day defendants who was seeking

extensive sanctions against the

plaintiffs' counsel resulting from his

joining in after the show cause was issued

as part of the memorandum opinion and or-

der appealed from.

On the same day that the lower court

decided both the PMPA summary judgment in

favor of the plaintiff Hoai and the dis-

missal against Hoai and his two fellow

plaintiffs, the Hemenways, and issued the

show cause against attorney Hemenway and

plaintiffs' counsel, the court also held,

in granting the summary judgment motion to

Hoai in the PMPA case, that all of the

numerous outstanding motions at that time

in the PMPA case were moot, without even

mentioning individually what the particu-

lar motions were. Among these motions was

a quite mild sanctions motion that the

plaintiff Hoai had filed after this

Court's interim appellate decision in that

-25-

f~<

PMPA case. For even though this Court

made it clear at that time that the con-

stant Sunoco argument that these other

proceedings which were never concluded

were res judicata or constituted col-

lateral estoppel were not valid and even

though the court below had rejected those

arguments, Sunoco kept refiling papers

containing the res judicata and collateral

estoppel arguments. (Vol. I JA para. 507-

509) Plaintiff merely asked that the

defendant Sunoco be stopped from such

filing upon pain of more severe sanction

if they continued. Thus while this sanc-

tions motion, based on decisions of the

courts, was improperly held moot, a show

cause without specificity was issued

against the two counsel carrying the liti-

gation at virtually the drop of a motion

that was to some degree made obsolete by

the PMPA summary judgment in favor of

Hoai.

It was in the record in the PMPA case,

and the court below knew, that Mr. Hemen-

way was not being paid and it was obvious

that counsel for plaintiffs in this case

was carrying the litigation whereas

counsel for Sunoco stated in the record

that he had been paid several hundred

thousand dollars by his client, Sunoco.

Vol. III JA p. 1575, lines 1-3.

C. RELEVANT FACTS

Because of the procedural nature of

the underlying facts, involving as they

did the misuse of a court's procedure, the

above descriptions have incorporated many

of the relevant facts. To those already

spelled out we add these: it is highly

relevant that it is a matter of record in

other proceedings in other courts, such as

the Superior Court, that the testimony was

given in the presence of the Sun executive

in charge of oversight of the gas station

franchise in question, who himself cor-

-27-

roborated it, that the plaintiff Haoi had

been threatened with death and violence

and had signed the "one dollar" contract,

which, it can be observed, is an altered

and fraudulent document on its face under

such pressure. °

Further, the Jones, Day

defendants were at the hearing in the Su-

perior Court where these things came out

on the record and where David Hemenway and

Hoai testified to the violence against

them in the gas station leading to the

broken settlement and the court proceed-

3The "one dollar contract" document

bears the notation at the bottom of the

first page that that page is page l of 2.

At the bottom of the second page it bears

the annotation that that page, by con-

trast, is page 2 of 3. Page three bears

no such bottom pagination notation at all.

In his deposition which is in the record

in the PMPA case, plaintiff Hoai testified

that he only ever saw the third page when

he was compelled to sign the "one dollar

contract", It is, in other words, a

fraudulent document and is so on its face

so that for an attorney to rely on it and

present it to a court as the defendants

here did, is unethical in addition to

being evidence of lack of good faith and

malice.

-28-

pn232

1 ee ene

ings that gave rise to the instant cause

of action.

The facts leading to the development

of the cause of action in the Superior

Court were these: On April 10, 1986 the

plaintiff Hoai opened the Sunoco station

in question, at 2305 Pennsylvania Avenue,

S.E., Washington, D.C., as a Sunoco fran-

chisee. Plaintiff Hoai had come to this

country in 1976, and, after initial train-

ing by Phillips Petroleum he had worked

for several years within one of the Sunoco

companies, rising to manage, as an in-

house employee of Sun, some five stations

in this area. In 1981 he had negotiated

to buy the station in question from its

then franchisee only to be told by Sunoco

not to conclude the bargain because the

then franchisee was a problem franchisee

who would be out of the station in a while

and that Hoai could get the franchise

later from Sunoco directly. Hoai then

-29-

AZ

ae

AA

opened another Sunoco station in Green-

belt, Maryland which he switched over suc-

cessfully from another brand and improved

tremendously in its sales. Vol. III JA,

para. 1121-1391.

He worked in some other businesses not

involving a gas station but related still

to autos, all with his in-laws, and then

in 1986 applied for the franchise in ques-

tion, which had come open as promised. He

was told by Sunoco's representative,

Ernest Peele, that he would need approxi-

mately seventy thousand dollars or so to

start up the station. He had available at

the time, again through his family, about

half that. As part of an elaborate scheme

Mr. Vo, who fraudulently posed as a

wealthy construction magnate interested in

helping a fellow Vietnamese with a friend-

ly loan, promised that he would lend Mr.

Hoai the other half of the needed capital

while Vo's colleague Thach and several

“Sie

an254

others got Hoai's capital tied up in an-

other business, which was to be run by

Mrs. Hoai, an oriental specialty food

business. The representation of Vo, Thach

and the two other Vietnamese who per-

petrated the scheme, was that the money

put into the inventory of the food busi-

ness could be fed back into the gas sta-

tion as the food was sold and generated

income, and, indeed, for a while that hap-

pened. In the meantime, Vo claimed to be

putting up his thirty-five thousand dollar

loan by taking control, without announcing

it beforehand, of the gas station's bank

account and claiming he had put the loan

in the bank account. As it turned out all

that Vo was doing was putting the sta-

tion's own proceeds into the bank account

of the station and claiming he had made a

loan. In fact he had put a few hundred

dollars in. All of the station's proceeds

Vo then claimed was his money. Soon a

-3l]-

r 4

>

ne-c))

check for a load of Sunoco gasoline, the

first one in fact, bounced.

At this point the plaintiff Hoai re-

quested Vo and Thach to leave his station

and told Vo and Thach that he would get

money from his family to buy out whatever

they had really put in. At that time Vo

and Thach tried to extract from Mr. Hoai

and his family hundreds of thousands of

dollars on the falas pretense that they

had put that much money into the business.

When Hoai balked he was threatened with

murder and violence. His family was

threatened as well. Soon Hoai found him-

self excluded from his station by such

threats. Soon after that he found himself

excluded by the ongoing threat, along with

his wife, who was running it, from the

food business. As a result some forty-

nine thousand dollars worth of cash and

credit that would have to be paid was lost

in the seized inventory, all of the capi-

-32-

4-246

tal that Hoai was planning to use to gen-

erate income through his wife's running of

the food business in order to feed money

back into the gas station business as Vo's

"loan" was used for the early stages of

the start-up.

Soon, Ernest Peele, the Sun area rep-

resentative, wondered why Hoai was not in

his own station and inquired of Vo what

was going on. Vo claimed the station was

his, a position which Peele repudiated

firmly. Hoai was, as a result, soon told

by Sunoco that he had better get back in

his station and get it back from Vo, or

lose it. Hoai tried to get his station

back, beginning in the last of May, 1986

and early June, 1986 through the offices

of a Vietnamese attorney, who, un-

fortunately, he found out in August, was

working with the gang of people who were

causing his problems. In August he fired

that attorney and got Mr. Hemenway to take

-—33 -

H=-247

up his cause, initially pro bono. It was

then, August 25, 1986, that Mr. Hemenway

composed a document which was simply a

notice to surrender the premises of the

gas station to Mr. Hoai, the rightful

franchisee, had Mr. Peele of Sunoco certi-

fy on the bottom of it that Mr. Hoai was

the legitimate franchisee and entered the

station with Mr. Hoai and his son,

plaintiff/appellee David Hemenway. They

asked the employees who were there to

leave and they did. Vo was not there at

the time. As it happened there was in the

station when they entered an off-duty po-

lice officer and other, on-duty officers

soon arrived. So that there were there

the entire time police officers, all of

whom either testified, entered stipula-

tions or filed affidavits that all was

calm and that there was no violence. 4

There soon was arrived at between one

Arif, the attorney for Vo who came to the

station on that day of the 25th of August,

1986, and Hoai and the Hemenways, a

settlement agreement, whose existence and

terms have been acknowledged by both sides

in the record in the Superior Court pro-

ceeding. Under this settlement it was

agreed that Hoai and the Hemenways, with

others of their employ, would stay in the

station that night and the next day Ernest

4nespite this, Sunoco and Vo and their

attorneys have, in every proceeding in

this complex of litigation, appellate and

trial level both, falsely asserted that

Mr. Hemenway entered the gas station

violently in some way. Sometimes they are

just knowingly false assertions of

violence, sometimes they are clumsy

reverse racist implications based on

physical size. Most recently, in the Feb-

ruary 1, 1991 show cause hearing in this

case, defendant Forester asserted that Mr.

Hemenway had entered the station with a

false court document. This, as an exan-

ination of the document shows, is a con-

pletely false representation. But this

Court will be told similar falsehoods, it

can rest assured.

Peele, the Sunoco representative, would

state which of the two, as between Hoai

and Vo, was the legitimate franchisee of

Sunoco. If it was decided in favor of

Hoai, then inventory would be jointly

taken and Hoai would pay Vo for any moneys

Vo and his friend and colleague Thach had

actually put in to the business.

The next morning early, while David

Hemenway and plaintiff Hoai were in the

station after having spent the night, Vo

and seven others came to the station,

where David Hemenway and Hoai promptly

locked themselves within the station

building. Vo and the others brandished a

knife and threatened to kill David Hemen-

way and Hoai and the latter two could hear

the other Vietnamese trying to break into

the building. David Hemenway, as is a

matter of record, dialled 91l, several

times.

-36-

a=240

The police came and the other Viet-

namese turned all smiles. Soon John

Hemenway and also Ernest Peele of Sunoco

came. Ernest Peele asserted firmly that

Thanh Vong Hoai was the only legitimate

frachisee of Sunoco. Vo and his attorney

made a brief pretext of taking the in-

ventory but, instead of keeping the

settlement agreement, without notice they

went and retained the Jones, Day

defendants in this case, who then filed,

on August 28, 1986 the pre-emptive strike

law suit that led to the present cause of

action, with both a complaint and a motion

for a TRO. The complaint was based on

common law theories of conversion and in-

terference with contract. (Vol. I JA p.

138) It made no mention of the PMPA.

Substantial damages were claimed against

Sunoco as the lead defendant and against

all three plaintiffs herein secondarily.

The first deprivation of federal

rights under the color and authority of

the regulations and customs of the D.C.

court began with the arrangement of the

TRO proceeding. The time for the TRO was

blocked out a day ahead, but attorney

Hemenway was not notified until an hour or

so before the hearing time at which time

he was invited to the hearing as if it

were a normal counsel situation in which

he was expected to represent his client.

Instead, when he arrived, he was greeted

with a motion to diSqualify him as counsel

for his client so that he might not even

represent plaintiff Hoai in the TRO hear-

ing. This motion was made under the color

and authority of the canons of ethics

which have been adopted as regulations of

the District by the District of Columbia

Court of Appeals. Although this sort of

thing is not allowed in most courts in the

country, that is, the use of "sandbagging"

-38-

a=-242

OO oO

tactics to deprive parties of counsel

without notice in preliminary stages of

proceedings, misuse of these canons in the

Superior Court in those years was, un-

fortunately, sometimes accepted in the Su-

perior Court, as it was in this instance.

Hoai was thus deprived of his counsel of

choosing, and counsel Hemenway of his

right to associate with and represent his

client.

Thus, new counsel, the present counsel

now threatened with large sanctions, was

brought in for a re-start of the TRO hear-

ing at 8:30 the following morning. The

TRO hearing began, but had scarce gotten

into the opening statement of the Jones,

Day defendants, representing Vo as the

plaintiff in that proceeding, when the TRO

judge interrupted to state that she did

not want to hear about anything but the

possibility of the local tort of "wrongful

eviction" being committed by the

nttin

DAZ

Awe

defendants. Under this doctrine of case

law in the District, a landlord may not

evict a tenant except through the regula-

tions and procedures of the Landlord and

Tenant branch of the Superior Court.

There was nothing in the original con-

plaint or TRO motion about this doctrine

or any violation of it. Though the Jones,

Day defendants herein, in prosecuting that

case, did not initiate the use of this lo-

cal law to deprive plaintiffs herein of

their federal and other civil rights, once

the suggestion was made, they embraced the

concept, amended their complaint accord-

ingly and embraced the idea that local

landlord and tenant law pre-empted the

PMPA rather than the other way around in

matters of termination and nonrenewal of

franchises. No mention of the PMPA was

made in the initial proceedings and when

it came into discussion through the ef-

forts of the present plaintiffs and they

-40-

a=244

in fact removed the case to the federal

court based on it; the present defendants

combined to remand it to the Superior

Court.

The TRO required, as a specifically

expressed condition precedent, that a bond

of $3,500.00 would have to be posted in

cash. It was never posted during the

duration of the TRO for its ten days of

life. (Vol. II JA para. 1097-1102) iIn=-

stead, the defendant Ottman promised the

TRO judge he would give an attorney's

check for the bond. Instead, under the

customs of the Superior Court, Vo wrote an

NSF check drawn on the account of Hoai's

gas station franchise. By the time the

check was returned to Vo under the proce-

dures of the Superior Court, the TRO's ten

days were long over. (Vol. II JA p. 1100)

At that point the defendant Vo was re-

quired to post cash for a short while but

then, under the practices of the Court,

-4)1=-

A=245

the defendant Vo was allowed to withdraw

the bond and take it back, thus uieviaing

no security whatsoever for the individuals

whose property or rights are wrongly

taken, enjoined, attached or interfered

with.

Ten days after the TRO was issued, the

defendants in this case approached the

Judge in Chambers of the Superior Court

who, under then Rule 12-I(b), a local rule

of that court, was entrusted at that time

to have presented to him at any time, ex

parte as deemed appropriate, any other

matters appropriate for such disposition.

They presented to him and got him to sign

a "consent order" purporting to be an "ex-

tension" of the TRO with lip service that

it only applied to the defendants Sunoco

and Vo which took the station away from

Hoai and gave it to Vo for seven months,

in violation of the PMPA. (Vol. II JA

para. 85-87) This was on September 8,

atte

A=246

——t—~S

1986. Absolutely no notice was given by

any of the defendants to any of the

plaintiffs prior to this misuse of the lo-

cal rule and the plaintiffs were not

notified until after the consent order had

been signed and the judge's signature ob-

tained. The present law suit ensued.

III. JURISDICTION

Jurisdiction is under 28 U.S.C. 1291.

The lower court's jurisdiction is based

upon the civil rights laws and 28 U.S.C.

1343, 1331 and 2201 and 2202.

IV. SUMMARY OF THE ARGUMENT

The use made of the Superior Court

Rule 12-I(b) without any notice or due

process to deprive the principal plaintiff

of his valuable gas station franchise in a

Lugar-like fashion violates 42 U.S.C.

1983: In addition to due process the PMPA

rights and other civil rights are vio-

lated. Private attorneys are not

privileged like prosecutors when they ex-

-43=-

Aa=-247]

ceed their traditional role and partici-

pate knowingly and willfully in violations

of due process and the like.

To take the station of plaintiff Hoai

and harm his agents for having testified

and attended a TRO by the procedure

employed to avoid subsequent testimony at

what should have been a follow on full

preliminary injunction hearing violated 42

U.S.C. 1985(2) the first four sentences.

42 U.S.C. 1985(3) was violated by the

favoring of an extortionist, gangster-type

individual over his innocent prey where

his prey, such as the plaintiff Hoai, are

the minority group members. It is a

denial of the equal access to the Pegular

courts of justice, as opposed to the pri-

vate justice of the thug, that all are

entitled to enjoy. Likewise to prevent

enforcement of the gas station franchise

agreement in the court by the acts com-

plained of violates 42 U.S.C. 1981 in-

shin

A=-248

in ene te ren eer reel

asmuch as white people would not have been

subjected to such treatment by Sunoco,

which would not have thought it could get

away with it. The same is true for leas-

ing and holding property where a violation

of 42 U.S.C. 1982 is involved. The con-

version from dismissal motion to summary

judgment was erroneously handled so as to

bypass, improperly, the summary judgment

safeguards, such as time to bring in addi-

tional material and fact statements under

the local rule. This is particularly er-

roneous where outstanding motions to stay

were ignored which clearly would have re-

quired a pause. A show cause for sanc-

tions was used here in an improper and er-

roneous manner as part of the dismissal

memorandum so as to chill advocacy in an

unacceptable manner in light of pronounce-

ments by the court and manipulation by op-

posing counsel in this and related liti-

gation.

-45-

o

Aecay

V. ARGUMENT

A. 42 U.S.C. 1983

In its decision in Lugar v Edmondson Oil

Co., Inc. (1982) 457 US 922, 102 SCt 2744,

73 Led2d 482, the Supreme Court decided

three points which appellants Hoai, Hemen-

way and Hemenway contend are decisive in

their favor in this case. First, Lugar

decided that a prejudgment attachment

statute of a state that enables prejudg-

ment attachment without due process

creates a 42 U.S.C. 1983 cause of action

and, second, that such a cause of action

may be pursued by the injured party

against the private parties who took ad-

vantage of the unconstitutional procedures

to attach the property. Third, Lugar es-

tablished that even where the wrongful at-

tachment was ultimately proven to be

wrongful under state law, the fact that it

was possible and allowable under the state

procedures before it was decided under

ye

4-250

RR ee ee mR pT rE er

ee

state procedures that it was wrong did not

diminish the fact that it was violative of

42 U.S.C. 1983 when it was used early in

the proceeding.

Here a very similar type of ability to

go further than just an attachment and ac-

tually take a property consisting of a

valuable franchise and the rights and in-

terests attached to it was demonstrated.

The private parties who perpetrated the

actions were sued without suing the court

officials involved in any way. The

regulations and procedures and customs and

practices of the Superior Court were used

completely prematurely and without due

process to achieve the taking of the prop-

erty from Hoai and the giving of it to the

defendant Vo. Thirdly, as in Lugar the

plaintiffs have maintained, since 1986, in

the Superior Court that what was done here

was wrong under D.C. law as well as under

federal law but, unlike in Lugar they have

-47]7-

yc 4

Amc)!

not been able to get any results and in-

deed some judges of that court have rein-

forced the wrongs.

Thus, if anything, the case here for

these plaintiffs is stronger than it was

in Lugar.

We think it evident that when you take

a man's property ex parte and completely

without prior notice there is a depriva-

tion of due process. It is a matter now

of res judicata in the related PMPA case

that the station franchise belonged to

Hoai and not to Vo and that it belonged to

Hoai and was illegally terminated and not

renewed by defendant Sunoco so that to the

extent that the other defendants engaged

in the actions of Sunoco, or joined in

them, as those actions violated the PMPA

then the plaintiff Hoai, and the other

plaintiffs as his agents, were deprived of

an important and valuable statutory right

niin

A@-252

i i rl tise a

—e SS SS eee

under color and authority of District of

Columbia law.

Further, the Superior Court is an Ar-

ticle I federal court. Therefore, since

Hoai and the Hemenways appeared at the TRO

hearing and testified and attended as

parties and witnesses, to the extent that

the gas station franchise was property of

the plaintiff Hoai, in which the other two

had an interest derivatively, and the

defendants injured him in that property

for the plaintiffs having testified as to

the violence by taking it away from him in

a manner that would risk no further such

testimony, i.e., by proceeding ex parte,

then important rights under 42 U.S.C.

1985(2), the first four sentences, were

also deprived under the color and

authority of the regulations, customs and

practices of the Superior Court.

-49=-

pi ar 4

Awe)

The bond procedure which provides com-

pletely illusory security violates due

process.

The other federal rights violated

which involve equal protection and inten-

tional discrimination based on an in-

vidious classification, will be discussed

in their own context further on.

An attorney, such as plaintiff John

Hemenway and a client, such as plaintiff

Thanh Vong Hoai, have associational

rights, particularly where Mr. Hemenway is

helping Mr. Hoai pro bono, as was the ini-

tial case here. In Re Primus (1978) 436

US 412, 56 Led2d 417, 98 SCt 1893. They

were violated here. Further, an act of

using a law suit to seek redress, even as

a defendant and counterplaintiff, is a

first amendment right to seek redress by

petitioning the court. City of Long Beach

v_Bozek (1982) 31 Cal 3d 527, 183 Cal Rptr

86, 645 P2d 137.

B. ATTORNEYS AS PARTIES

A side issue continually raised by

these defendants is that the attorneys in-

volved were merely acting in their normal

course as attorneys and therefore cannot

be liable under 42 U.S.c. 1983. There

does not seem to be any Supreme Court case

directly on point and there are many cases

on the point that attorneys do not become

State actors merely because they are of-

ficers of the court. But that is a

chimera. There was never any contention

here that private attorneys merely because

they are officers of the court are, ipso

facto, state actors so as to be liable un-

der 42 U.S.C. 1983, Nor was there any

contention that by employing the ordinary,

constitutional processes of a court in a

manner that does not violate federal law,

private attorneys incur 42 U.S.C. 1983

liability.

-5)]=<

The contention here is simply that as

a factual matter the defendant attorneys

knew perfectly well that what they were

doing violated basic constitutional

safeguards and should have known that it

violated the PMPA rights of Hoai and his

agents. Further, it is alleged that they

did it maliciously and willfully which

plaintiffs fully believe is shown by some

of the facts set out above and others that

can be proven. They do not have the

qualified immunity that the common law

gives to prosecutors.

It is quite clear that the Edmondson

Oil attorneys in Lugar would have been as

liable as their clients for the 42 U.S.C.

1983 violation. That is so under familiar

principles of agency. Here, however, the

attorneys involved went further. After

all the D.C. Court had a pre-judgment at-

tachment procedure, under Rule 64-I and

=S2@

A=256

D.C. statutes that is properly used for

such attachments and is surrounded and re-

quires quite a sustantial bond. But these

attorneys searched and connived to find

rules and procedures of the court to

bypass the safeguards of that rule and of

Rule 65 which, like the federal law, re-

quires a full hearing before a preliminary

injunction can be issued.

Prosecutors had immunity at common

law. The Supreme Court has held that a

prosecutor enjoys absolute immunity from

suits for damages under 42 U.S.C. 1983

when he or she acts toward initiating a

Prosecution and in presenting the state's

case. Imbler v Patchman (1976) 424 US

409; 96 SCt 984, 47 Led2a 128. There is

no record that a similar immunity extends

to private counsel. Avoiding giving op-

ponents and their clients the elementary

notice required by due process is not the

-~53-

A@=257

normal function of an attorney acting in a

private capacity.

C. 42 U.S.C. 1985(2)

The Superior Court is an Article I

federal court. The first four sentences

of 42 U.S.C. 1985(2) create liability for

parties who injure a party or witness for

having attended or testified in a federal

court. No racial or otherwise invidiously

discriminatory intent is required. Here

the plaintiffs attended the TRO hearing

and testified freely and fully as parties.

Defendant Vo sat there and declined to

testify to counter the uncontested

testimony of the plaintiffs concerning the

threats and attempts of violence by the

defendant Vo. Plaintiff Hoai and

plaintiffs Hemenway, as defendants in that

proceeding, were promised twice by the TRO

judge that there would be a full follow-on

preliminary injunction in ten days. Ob-

viously at that hearing there would have

o8i<

A-258

oO

been further testimony by the present

plaintiffs on these matters of violence

and threats of violence.

Obviously not wanting such testimony

and in order to retaliate against the

plaintiffs for having so testified, the

defendants devised a way to harm plaintiff

Hoai in his property, and also to harm his

agents, by taking that property from him

in violation of federal law.

D. 42 U.S.C. 1985(3)

Vo, along with others, was threatening

the plaintiff Hoai with classical strong

arm tactics and was, therefore, trying to

be the law as far as Hoai was concerned,

attempting to instill in him sufficient

fear and deprive him of income to the

point where he could not have effective

equal access to the law to protect himself

and rectify his plight. The other

defendants in this case knew that this was

going on and yet they joined with Vo and

-55-

ae2259

gave him Hoai's gas station franchise,

knowing that it would enable the rule of

the strong arm by Vo over Hoai and the

private alleged system of justice that

such strong arm figures purport to dis-

pense. In doing so they were fully aware

that they were depriving Hoai of the

ability to have a cash flow from his own

business which would have given him the

ability to fight Vo and Vo's tactics.

This was their intent in fact as they

carried out their conspiracy. They wanted

to crush the plaintiff Hoai so that they

then would be free to not have to face any

possible restitution for their activities.

They had observed that Vo was only inter-

ested in preying on other Vietnamese. Un-

der this situation the other defendants' -

choosing Vo as a co-conspirator on the

theory of "let them settle it among them-

selves", a theory which Sunoco fully ad-

mits in the record it was pursuing,

-56-

A=260

iii ceili ir eels ie aaa amen

amounted to little more than a cynical

calculation based on an estimate that mem-

bers of the Vietnamese race could not ob-

tain redress against the desires of such a

strong-arm figure in their own community,

a judgment in which the righteous vViet-

namese are perceived as not worthy of

receiving the justice and the equal pro-

tection of the laws of the overall Amer-

ican society. Instead, they are to be put

at the mercy of such "justice" as the

brigands within their community represent.

Hoal in standing up against Vo and his

colleagues, and the Hemenways in helping

Hoai, are discriminated against invidously

for racial reasons as much as those in-

defatigable plaintiffs in Hobson v Wilson

(CA DC 1985) 737 F2d 1, cert den. 470 US

1084. Neither Sammy Abbot or Abe Bloon,

for example, were black and neither of

those gentleman was purely involved in as-

Sisting against minority discrimination.

=-57=

A=261

Sammy Abbot was primarily involved in bat-

tling freeways, which had racial overtones

and implications. Abe Bloom was against

the Vietnam War which he thought had a ra-

cial component.

The famous language of Griffin v

Breckenridge (1971) 403 US 88, 91 SCt

1790, is that the language of 1985(3) re-

quires, "as an element of the cause of ac-

tion, the kind of invidiously dis-

criminatory motivation stressed by the

sponsors of the limiting amdendment."

(emphasis added). 403 US at 102. Here

Vo, acting in a classic strong arm manner,

sought to prey on his fellow Vietnamese

and block his access to an effective

remedy for the wrong Vo was doing him.

"The conspiracy, in other words, must aim

at a deprivation of the equal enjoyment of

rights secured by the law by all." Id. at

102. Here the law secures to all of those

of us who are not subject to such

-58-

n=262

a

predators within a relatively isolated

ethnic group all of our rights. The aim

of Vo clearly was that Hoai, as a

righteous member of the Vietnamese com-

munity should not have equal enjoyment of

those rights available to all of the

larger community. The others joined in

this by what they did. There is here a

class-based invidiously discriminatory

animus and it has a racial element that is

not economic but rather grows out of a

desire by Vo and his fellows to control

and dominate their fellow ethnics of the

Vietnamese community.

E. 42 U.S.C. 1981

What plaintiff Hoai and his two agents

were doing in the Superior Court was seek-

ing to enforce the franchise contract

which the plaintiff Hoai had with Sunoco.

Because of its choosing, however, to es

with the strong-arm regime of Vo and give

him the gas station franchise in violation

-59=<—

A=263

of the franchise agreement, Sunoco, and

the others with it, were depriving Hoai of

the right to enforce his contract, to give

evidence, to be a party and to the full

and equal benefit of all laws and proceed-

ings for the security of his property as

is enjoyed by white persons.

F. 42 U.S.C. 1982

Nor did the defendant Vo, and the

other defendants with him, give Hoai the

same right as is enjoyed by white citizens

to lease and hold the franchise rela-

tionship, agreement and lease in this in-

stance. Vo cut him off from this right

because he thought that Hoai, as a Viet-

namese, could be treated in this way and

the larger, "white" world could not be

reached by Hoai for assistance. The

others joined with this conspiracy.

G. THE CONVERSION TO SUMMARY JUDGMENT

In this case the dismissal motion of

the Jones, Day defendants including

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a=264

eee mn ie ea aoe ea ea eee

several affidavits and contained much

material from outside the record. The

dismissal motion of the Sunoco defendants

referred to matters outside of the vesurd:

In its opinion the court spoke of dismiss-

ing the case under Rule 12(b) (6) but in

fact considered and entertained materials

from outside the record.

Thus this was a summary judgment, not

a dismissal. Under the circumstances

here: no notice whatsoever of the conver-

Sion, a failure to allow any idea of an

amendment to allow the actual underlying

causes and factual issues to be brought

out, this particular conversion does not

meet the fairness test set out in Tele-

Communications of Key West, Inc. v United

States 1 Fed Rul Serv 3d 960, 756 F2d 1330

(CA DC 1985).

Even more unfairly, plaintiffs had

moved for stays pending the outcome of

plaintiff Hoai's summary judgment in the

-6l-

A=265

related PMPA case. Obviously the intent

of these motions was to allow a decent in-

terval after the decision in it that the

effects of that opinion could then be ab-

sorbed into the civil rights case proceed-

ings in order that the effect in particu-

lar of it being found that the defendant

Vo had absolutely no right to claim the

gas station franchise which lack of any

right is a necessary concommitant or in-

escapable corollary to the finding that

Sunoco terminated and nonrenewed Hoai's

franchise illegally by virtue of the con-

sent agreement.

Although there are situations perhaps

where short notice of the conversion is

adequate, here there was none at all. The

strict rule of this Circuit concerning the

filing of specific statements of facts

that the eau alleges are uncontested

with the responding statement of allegedly

contested facts under Local rule 108(h)

-62-

A-266

eee

was ignored here. See Gardels v Central

Intelligence Agency (CA pc 1987) 637 f2D

770; Tarpley v Greene (CA DC 1982) 684 F2a

Le

It is clearly as if the lower court

did not want the full facts considered

properly and no chance for amendment.

Rule 12(b) specifically requires that

where the Rule 12(b)(6) motion matters

outside the pleadings are presented to and

not excluded by the court, then it is

mandatory that the motion shall be treated

as one for summary judgment and disposed

of as provided in Rule 56, and all parties

must be given reasonable Opportunity to

present all material made pertinent to

such a notion by Rule 56. Rule 56 (c)

then provides for a hearing after 10 days

notice at least.

Under the 1946 amendments to the Fed-

eral Rules the committee notes stated of

this conversion from Rule 12(b) (6) motions

with Bas

n©267

to Rule 56 motions: "It will also be ob-

served that if a motion under Rule

12(b) (6) is thus converted into a summary

judgment motion, the amendment insures

that both parties will be given a rea-

sonable opportunity to submit affidavits

and extraneous proofs to avoid taking

party by surprise through the conversion

of the motion into a motion for summary

judgment." Thus the spirit and letter of

the rules were ignored here.

H. CHILLING WITH THE SHOW CAUSE

The combination of factors in this

case show that there is certainly an ap-

pearance that Rule 11 is not being invoked

here for the purpose for which it was

principally intended, i.e., the deterrence

of the filing of papers in the court

without having done adequate pre-filing

inquiry. That is the primary purpose of

the Rule. See Cooter & Gell v_ Hartmarx

Corp. (1990) 110 SCt 2447, 2554. Yet,

-64-

a=268

a eer

here, plaintiffs counsel was limited in

the court order Ordering the show cause,

the one appealed from here, to 45 pages.

Then, at the Subsequent oral hearing

plaintiff's counsel sought to get his pre-

filing inquiry into the record he was cut

off from doing so by the court below.

Here, the pre-filing factual inquiry

involved hours of investigation over many

years, the key happenings are matters of

public record which the counsel were fa-

miliar with, and the legal inquiry went to

the cases cited herein and the law. There

is no 1985(2) case like this one, no

1985(3) case and no such case under either

1981 or 1982. There are, however, no

cases excluding what is sought here.

We think it evident that what was

filed here was not Subject for Rule 11

Sanctions. The underlying facts and law

here justified filing a complaint. The

complaint was clumsily drafted. However,

-65=-

as Judge Posner has pointed out, the

Rule's purpose is not to penalize for in-

artful draftsmanship. In re Kelly (CA7

1986) 808 F2d 549, 552. The parties

plaintiff, for reasons already discussed,

anticipated that there would be an op-

portunity for submission of additional

materials and amending the complaint ac-

cordingly because of the pending decision

in the PMPA suit. That did not occur, of

course. Instead the actions of the court

below indicate that it either simply

forgot about the outstanding stay motions

to allow for such further work after the

PMPA decision, ° or its intention was to

shape the litigation up by employing the

show cause as a tool for that purpose.

The chilling impact of the court's actions

Ssome credence is given to this pos-

sibility by the fact that at the February

1, 1991 hearing in this case the court be-

low, at the outset, listed those motions

as still outstanding and they have never,

in fact, been ruled upon.

-66-

a<270

on plaintiffs and their counsel, objec-

tively considered, is the same whichever

it was, inadvertancy or conscious use of

the rule and a show cause to shape the

litigation up for Purposes of calendar ef-

ficiency. The objective appearance is one

of the lower court's granting a begrudging

Summary judgment in the PMPA case but im-

mediately seeking to have the damages cut

to a meaningless figure in that suit,

while simultaneously using the unspecified

Show cause as part of the Opinion appealed

from here to chill any possibility that

the plaintiffs in this case might continue

to carry their case forward by threatening

their counsel with a show cause (one of

whom is pro se in the matter) and putting

them to the burden of spending what time

they could put in on the case defending

themselves under difficult conditions.

Objectively considered, it does not

seem that the reference at the February 1,

-67=-

A271

1991 hearing on this show cause to General

Powell could refer to anything other than

the general's famous remark, then just

made and heard round the world, that he

was going to surround, cut-off and kill

the Iraqi army, just what he has done.

Since there are no countersuits here, this

remark can have only been aimed at the

Suits of the plaintiffs here. Rule ll is

intended to deter baseless filings accord-

ing to the Supreme Court as cited above,

not to cut-off, surround and kill liti-

gation. Therefore, here the inclusion of

the vague and unspecified and even confus-

ing show cause in the appealable final or-

der is itself appealable as part of that

order, for the show cause is integral with

the dismissal, is completely un-

differentiated from it and establishes an

effect which is absolutely chilling. In-

deed it made counsel have to really go to

great additional risk merely to file a

afBo

r=-272

|

normal reconsideration motion, even though

they felt they had solid grounds for doing

so.

In a case from the ninth Circuit,

Judge J. Blaine Anderson criticized the

use of the technique of imposing sanctions

without notice and proper hearing pursuant

to Rule 11 in inappropriate circumstances,

using as an example a district court case

from this circuit. Tom Growney Equip. v

Shelley Irr. Development (CA9 1987) 834

F2d 833, 836. Criticizing Judge Green's

decision in Rowland v Fayed (D DC 1987)

115 FRD 605, 608, Judge Anderson pointed

out some of the dangers of not giving

proper notice under Rule ll. We hasten to

add that this is not a case such as

Rowland where sanctions were imposed

without notice. But we do point out Judge

Anderson's observation at 836 on the lack

Of specification of the grounds of the

Rule 11 show cause issued here. Judge

afi@—

A=273

Anderson points out in that case that the

appellate panel was "hard pressed, as we

assume apeeiiant must have been, to

determine specifically, either before or

during the subsequent hearing, the grounds

on which the district court was rely-

| Pe tie Here there was no hasty imposi-

tion of sanctions without proper notice

but there was a blanket show cause without

any specification whatsoever, with a trig-

ger of a little over two weeks and a page

limit of 45 pages imposed by the order to

explain that which was never specified.

In the complex of litigation surround-

ing Mr. Hoai's problems counsel have spent

hundreds and hundreds of hours of legal

research and factual investigation over a

period of a number of years, all of which

could qualify as pre-filing inquiry. When

counsel tried to present this pre-filing

inquiry at the February 1, 1991 hearing,

as we have pointed out, counsel were cut

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A=274

ee

off, even though counsel pointed out that

under one of the two second circuit cases

most frequently cited in this circuit,

prior work with the client counts as pre-

filing inquiry so long as it lends itself

to assuring a well-grounded and warranted

filing. When we speak of fairness here,

we stand on the decision by the Supreme

Court in White v New Hampshire Department

of Employment Security (1982) 455 US 445,

71 Led2d 325. Just as a fee motion in a

Civil rights case should not unfairly sur-

prise or prejudice the party from whom the

fee is sought we think the same applies in

the court's use of Rule 11 show cause or-

ders as part of dismissal grants.

Two second circuit cases are much

. cited in the cases in this jurisdiction on

Rule 1l. One that is particularly

pertinent to the question of pre-filing

inquiry is Oliveri v Thompson (CA2 1986)

803 F2d 1265. It also involved a civil

a

-7l=

A-275

rights and one also that concerned abuse

of authority, though in that case it was

of police arresting procedures. In that

case it was held that the attorney's expe-

rience and investigation, coupled with the

client's story, was sufficient to justify

bringing the: case without it being

sanctionable. Id. at 1278. Indeed the

case here is much stronger than in

Oliveri. For, in that case it was the

client of the attorney against whom the

sanctions were sought who proved out to be

untruthful. In the Hoai litigation it has

turned out that every time the plaintiffs

have been allowed discovery they have been

able to show that it is Mr. Vo who is not

being accurate and, somewhat derivatively,

Sunoco. As in that case also there are

great difficulties in obtaining some ine

formation. Information about the Viet-

namese plaintiff Hoai is standing up

against is hard to come by for the simple

=~72=

a-276

Diener

reason that many of the people with the

information are reluctant to talk and

others will not talk except privately but

will not speak up in court. Some wit-

nesses are now dead; one died and admit-

ting while approaching death that he had

been intimidated into changing his story.

We point out to this Court that the stan-

dard set out in Oliveri is that "the court

is to avoid hindsight and all doubt is to

be resolved in favor of the signer. As we

Stated in Eastway, Rule 11 is violated

Only when it is ‘patently clear that a

Claim has absolutely no chance of suc-

cess.' 762 F.2d at 254." This circuit,

we note, does not appear to have such a

Standard enunciated. But it is Clear in

this case that if there — been proper

conversion of the dismissal motion, proper

time to digest and apply the PMPA deci-

Sion, and proper Opportunity to look at

the facts and amend, it would have been

-73-

readily apparent that the Lugar decision

alone makes it clear that it is not the

case that a the civil rights claims of

these plaintiffs have absolutely no chance

of success. As said in Eastway, the other

second circuit case often cited in our

jurisdiction, at the place cited:

In framing this standard, we do not

intend to stifle the enthusiasm or

chill the creativity that is the

very lifeblood of the law. Vital

changes have been wrought by those

members of the bar who have dared to

challenge the received wisdom, and a

rule that penalized such innovation

and industry would run counter to

our notions of the common law it-

self. Courts must strive to avoid

the wisdom of hindsight in determin-

ing whether a pleading was valid

when signed, and any and all doubts

must be resolved in favor of the

Signer. But where it is patently

clear that a claim has absolutely no

chance of success under the existing

precedents, and where no reasonable

argument can be advanced to extend,

modify or reverse the law as it

™ stands, Rule 1l has been violated.

Such a construction serves only

those who would manipulate the fed-

eral court system for ends in-

imicable to those for which it was

created.

-74-

a-27/8

a

There is not the slightest assertion that

this standard was not met here other than

assertions of opposing counsel which do

not turn out to be so when investigated.

What is particularly disturbing here is

that the rule, objectively considered, is

being used not to stop manipulation of the

federal court system, but to assist the

other side in doing just that, particular-

ly the defendant Sunoco.

After this Court rendered its interim

appellate decision in the PMPA suit, cited

above, that became evident. For that in-

termediate appeal was necessitated by a

motion made by Sunoco in that related ‘case

on February 9, 1988, cutting off the dis-

covery of the plaintiff Hoai in that case

before the scheduled date. This motion to

dismiss the PMPA case was based entirely

On arguments of collateral estoppel and

res judicata, issue preclusion in other

words. The motion was, as was later noted

-75-

wt

Awe li F

in oral argument before this Court, weak

and vague in its reasoning. It was denied

without comment by the court below. It

was at that time that the lower court in

that case sua sponte stayed its proceed-

ings on a theory of abstention, attempting

to compel plaintiff Hoai to pursue his

remedies in the Superior Court of the Dis-

trict, where he had not been the initiat-

ing party. When the intermediate appeal

of that stay came up to this Court on the

occasion cited, the record reveals that

these same arguments of issue preclusion

were tried repeatedly on the panel of this

Court, so repetitively in fact that the

panel had to remonstrate with the counsel

for Sunoco several times that the issue

preclusion arguments were not valid, at

first politely and then more firmly.

Nonetheless, upon remand, the counsel

for Sunoco continued to file motions and

other papers with the Court in which he

=76=

n=2B0

a ee ee ee ee ee

continued to raise issue preclusion argu-

ments. For instance, in its opposition to

the summary judgment motion of the

plaintiff Hoai in that case, a motion now

granted, which was filed on April 7, 1989

the counsel for Sunoco filed some 15 at-

tachments. One of them, as on numerous

prior occasions (in fact every time he can

get it in) was a copy of the TRO order of

the judge in the Superior court and it was

accompanied by further issue preclusion

arguments that the TRO was res judicata.

Keep in mind that this was not Only after

the lower court had rejected this argument

without comment and this Court had re-

jected it, but also after the District of

Columbia Court of Appeals had rejected it.

All the more remarkably, before most

courts assertions that a TRO is res

judicata and provides a collateral judi-

Cial estoppel would themselves be

Sanctionable.

ly by

Finally, on October 26, 1989 counsel for

plaintiff Hoai in that case moved for

Sanctions for the continual misrepresenta-

tions to the court, including particularly

the misrepresentation that the matters had

already been decided in other forums be-

cause of such things as the long expired

TRO in the Superior Court. This motion

was never ruled upon by the court below

until the October 1, 1990 date of the si-

multaneous opinions and decisions dismiss-

ing plaintiffs' complaint in this case and

granting Hoai's summary judgment motion in

the PMPA case. At that time, as part of

the PMPA opinion granting Hoai summary

judgment on liability all outstanding mo-

tions were denied as moot. ® This, of

course, was simultaneous with the issuance

of the show cause in this case against

6The Opinion of the Supreme Court in

Cooter & Gell, supra indicates that this

would not be a correct decision though not

directly on point.

-78-

a=282

counsel for plaintiffs, one of whom is

also pro se. As the transcript shows, at

the hearing on the show cause, on February

1, 1991 in this case, the counsel for

Sunoco, echoed again by the counsel for

Vo, repeated these same issue preclusion

arguments again and again. In fact, the

most prominent assertion, the record

shows, of Sunoco counsel, was that "this

litigation", without distinction between

its various branches, must be stopped.

The assertion was made repetitively that

plaintiffs were bringing the same action

over and over again and it had already all

been decided. This is an untrue state-

ment. No decision has been made on any

Suit against the present defendants except

for the PMPA decision against Sunoco of

partial summary judgment. No decision has

been made against plaintiff Hoai except

that his RICO suit, naming only Vo among

these defendants, was dismissed in the

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a=264

i a

Eastern District of Virginia for an al-

leged lack of a pattern of racketeering

activity, a technical requirement under

that Act, before the Supreme Court struck

down such use of that criteria to dismiss

RICO suits in the summer of 1989 in the

HJ, Inc. case. >

Thus it can be seen that, despite losing

on a baseless theory repeatedly, a theory

that should have been sanctionable in the

first instance, counsel for Sunoco, by

virtue of simply ignoring pronouncements

and holdings denying his issue preclusion

argument, has simply kept making it and is

succeeding in getting the court below to

attack opposing counsel rather than him-

self. For whatever reason, he has suc-

ceeded with this tactic in persuading the

court below, as part of this dismissal

presently appealed, to chill the advocacy

of plaintiffs' counsel and conceive of the

litigation of the plaintiffs as being lit-

-80-

A=284

igation which ought to be treated like

General Powell said he was going to treat

Saddam Hussein's army. This, we suggest,

is the manipulation of the federal courts

warned of in Eastway, supra. And, for

whatever reason, because of the lower

court's fascination with General Powell,

perhaps, or because of simple persistence,

the manipulation has worked and is chill-

ing the cause of the plaintiffs improper-

ly. Therefore we ask this Court to con-

Sider this show cause as an integral part

of the error in this dismissal order ap-

pealed from.

The Supreme Court, in its opinion in

Browning-Ferris Industries, Inc. v Kelco

Disposal, Inc. (1989) 109 SCt 2902, de-

cided that the excessive fines clause of

the Eighth amendment does not apply to

curtail private jury awards deemed ex-

cessive by those suffering from them. The

Court traced the history of that clause to

-8l-

nc)

the amercements under the English Kings

that were used to fine one party and con-

trol litigation by a sort of favoritism.

To the extent that the court below itself

participates in a one-sided policy that

distorts the purpose of Rule 1l amercement

may be what is being approached here.

CONCLUSION

The dismissal should be reversed and the

cause remanded with instructions to allow

a complete amendment of the complaint in

light of the decision in the related case

and any other relevant matters, after

which a full briefing on summary judgment

motions should be allowed only with all

requisite safeguards and precautions to

assure that there is no material factual

dispute.

Respectfully submitted.

Laurence A. Elgin # 159582

8929 Sleaford Place

Annandale, Virginia 22003

-82-

oe A=-286

(202) 628-1114

John D. Hemenway #379663

4816 Rodman Street, NW

Wasnington, D.C. 20016

(202) 244-4819

CERTIFICATE OF SERVICE

I ries certify that I have served by

first class, postage prepaid, a

true and ‘accurate copy of the foregoing

Brief this 27th day of February, i991,

upon the following: J. Gordon Forester,

Greenstein, DeLorme & Luchs, Suite

1220 19th ‘Street, NW, Washington,

20036-2400; Robert Pleshaw, 729 15th

Street, NW, Washington, DC 20005; Francis

Markey,

Jones, Day, Reavis & Pogue,

1450 G Street, NW, Washington, D.c.

John D. Hemenway

-83-

Oral Argument scheduled for

May 13, 1991, 9:30 am

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA

RECORD NO. 90-7170

THANH VONG HOAI, et al.,

Appellants,

THANH VAN VO, et al.,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF COLUMBIA

REPLY BRIEF FOR APPELLANTS THANH VONG

HOAI, DAVID HEMENWAY AND JOHN HEMENWAY

REPLYING TO

BRIEF FOR APPELLEES JONES, DAY, REAVIS &

POGUE, MILLARD F. OTTMAN, JR. and DAVID Cc.

ROSEMAN

Laurence A. Elgin

8929 Sleaford Place

aw=coy

‘irra iie, .

Annandale, Virginia 22003

(703) 425-7879

John D. Hemenway

4816 Rodman St., N.W.

Washington, D.C. 20016

(202) 244-4819

Attorneys for Appellants

April 12, 1991

aecyy

April 12, 1991

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA

THANH VONG HOAI,

et al.,

Appellants,

THANH VAN VO,

et al.,

Appellees.

)

)

)

)

)

vV. )USCA Number: 90-7170

)

)

)

)

)

TABLE OF CONTENTS

Table of Contents

Table of Authorities

I.

Il.

Reply to Jones, Day Opposition

to 42 U.S.C. 1983 Claims

Superior Court Rule 12-I(b)

and Due Process

Jones Day 1985 Opposition

The New Claims Opposition

Procedure

n—291

19

20

TABLE OF AUTHORITIES

CASES

Adickes v. S.H. Kress & Co.

(1970) 390, US 144

Afshar v. Department of State,

(CADC 1983) 702 F.2d 1125

Bellmore v. Mobil Oil Corporation,

(CA2 1986) 783 F.2d 300

Bsales v. Texaco, Inc.,

(D.C.N.J. 1981) 516 F.

Supp. 655

Golden State Transit Corp.

v. Los Angeles, (1989)

493 US 110 S.Ct. 444

Griffin v. Breckenridge,

403 U.S. 88 (1971)

Holt v. Castenada,

(CA9 1987) 832 F. 2d 123,

cert. den. 485 US 979 (1988)

PAGE

10

10

11

45,27

Jackson v.. Metropolitan Edison Co.,

(1974) 419 US 345

Katz v. Morganthau,

(SDNY 1989) 709 F. Supp. 1219

Lugar v. Edmondson Oil Co.,

(1982) 457 US 922

Maine v. Thiboutot,

(1980) 448 US l

O'Shea v. Amoco Oil Co.,

(CA3 1989) 886 F. 2d 584

Pennhurst State School and

n@292

5,6,7,9

11

10

Hospital v. Haldemann,

(1981) 451 US l Set

Schwartz v. IRS, (CADC 1975)

Cited in Afshar 3

United States v. Fl Paso Natural

Gas Co., (1964) 376 US 651 3

Wilder v. Virginia Hospital Assn.,

(1990) 496 US , 110 L.Ed. 2d

455 iS Pe

Wright v. Roanoke Redevelopment

and Housing Authority, (1987)

479 US 418 11

ii

I. REPLY TO JONES, DAY OPPOSITION TO 42

U.S.C. 1983 CLAIMS

The opposition of the Jones, Day

defendants (Roseman, Ottman, and the law

firm itself, hereinafter, collectively

"J/D") is more careful and articulate than

that of Sun. J/D asserts that there are

"substantive" "basic defects, which cannot

be cured by amendment." Opp., p.- 16.

They then assert that there is a "height-

ened pleading standard" that has not been

met. Id. In the end, their 1983 argu-

ments, though more articulate and replete

with many more citations, differ in some

respect from from Sun's, but not so much

as first meets the eye.

One argument J/D does not explain well

at all is how, if a heightened pleading

standard has not been met, there cannot be

a cure by amendment of the alleged

deficiencies in pleading. As has been

pointed out in the reply to Sun's opposi-

tion, there was a great effort by the

court below not to allow amendment. [In

this situation it is hard to see how J/D

can be so certain that the alleged defec-

tive pleading cannot be cured, Further,

J/D, in its motion to dismiss filed a nun-

ber of affidavits and more than 300 pages

of exhibits. (JA 78-400) Because that

material was not excluded from the record

and was looked to by the court below which

referred to the material five times in its

Memorandum decision (JA957) the motion was

converted to one for Summary judgment.

Plaintiffs, having made motions to stay

(JA1410 and JA1455) making clear that they

expected further Opportunity to deal with

the motions to dismiss after the Overlap-

ping summary judgment decision then pend-

ing in the PMPA case,+ motions which the

court below appears to have Simply ig-

lsee Section II in the reply to Sun's

Opposition.

rn i:

nored, expected to submit countering

materials and amend after the decision in

the PMPA case, an opportunity plaintiffs

were denied. Under these circumstances we

do not think it is the case that amendment

could not have cured any alleged defects.

Certainly it is the case that it would be

impossible to tell whether that is so with

regard to the alleged failure to meet a

"heightened pleading standard." If the

failure is indeed one of not pleading

enough detail and being conclusory then it

would seem conclusory to assert that the

defect could not be cured by following the

normal course of allowing at least one

amendment to fill in the allegedly missing

allegations needed to support the con-

clusory assertions.

This would seem particularly important

here where the record below shows the

lower court adopted, almost without

change, the findings and conclusions of

the J/D defendants as its own findings and

conclusions, without any appearance of in-

dependent analysis (Memorandum Decision,

JA956-963). Virtually the only change the

court below made was to add the show cause

in its effort to chill the advocacy of the

plaintiffs and their counsel. (JA955) Up

to this time, only Sun had filed a motion

for sanctions. (JA932-951) J/D filed its

Motion to "join" Sun in requesting sanc-

tions on November 15, 1990, six weeks

after J. Oberdorfer issued his "show

cause." (JA991-1002). And this show cause

did not contain any independent analysis

apart from that submitted by J/D in the

earlier filing. In effect it asked the

plaintiffs and their counsel to show cause

why they should not be sanctioned for

daring t& depart, in an unspecified man-

ner, from that which was advocated by J/D.

This Court has pointed out that it re-

quires that a lower court's findings

-4i-

enable it to discern the lower court's

chain of reasoning. Afshar v Department

of State (CA DC 1983) 702 F2d 1125, 1144,

citing Schwartz v IRS (CA DC 1975). It

cannot be said that there was any indepen-

dent analysis here. The lower court simp-

ly incorporated the language of the J/D

brief into its opinion and added the

chilling show cause without additional ex-

planation or reasoning. Little wonder

that J/DS was encouraged then to file its

own Rule 11 motion. This is not just a

case of adopting findings of facts and

conclusions of law supplied by J/D. This

is a case of taking the J/D brief and

using it virtually as the lower court's

opinion. In Afshar this Court noted that

such a practice is not to be rejected out

of hand (United States v El Paso Natural

Gas Co. (1964) 376 US 651, 656, 84 SCt

1044, 1047, 12 Led2d 12) but noted that it

is:

A-296

rarely the best approach because

it tends to undermine the functions

of such findings in aiding the tri-

al court's own decisionmaking pro-

cess and revealing that process to

the reviewing court,...

The Court then noted that it will adopt

the findings lacking such independent

analysis if they are supported by the evi-

dence. Here it would seem that the lower

court was anxious to see that the evidence

(of amendment, e.g.) would not be avail-

able to support its adoption of the J/D

findings and conclusions without indepen-

dent analysis. Under the circumstances

this would not seem to be one of the rare

cases where allowing parties on one side

to thus determine the findings of fact and

conclusions of law was appropriate. In-

deed, it seems as if the lower court did

not want this Court to be Eble to discern

either its chain of reasoning or whether

the findings and conclusions it accepted

from Jones, Day were Supported or not.

Fortunately for the plaintiffs, such

things as Rule 12-I(b) of the Superior

Court as it existed on September 8, 1986

(JA1674) are a matter of which any court

may take notice and as such the disparity

between the findings and conclusions sub-

mitted by J/D and adopted by the lower

court without independent analysis and the

lack of facial constitutionality of that

rule's provisions for virtually unfettered

ex parte decisionmaking are apparent

despite this effort by the lwoer court.

The rule was changed on 1/1/91 (JA1675).

Substantively, J/D urges that it shows

in opposition that plaintiffs have not

pled and proved that the defendants either

deprived them of a right guaranteed by the

federal laws and Constitution or did so

under color and authority of the regu-

lations and practices of the District. As

to the later proposi-tion, J/D "proves 3¢"

by going back to Adickes v S. H. Kress &

Co. (1970) 398 US 144, 152 and then coming

a |

-7@

a=-300

obliquely forward to Lugar v Edmondson Oil

CO. (1982) 457 US 922. We reply that this

is misleading. While the opinion in

Adickes left room for doubt as to whether

or not an active conspiracy with, or joint

participation with, state officials was

required, Lugar and many other 1983 cases

Since Adickes (now over 20 years old) have

made it clear that usage of a state policy

embodied in some rule or practice is suf-

ficient to create the requisite color and

authority of state law. Indeed the very

point of Lugar was that the judge and the

Sheriffs were not sued, only the private

users of the attachment procedure. There

is not the slightest hint that the Sheriff

and his deputies were in conspiracy with

Edmondson Oil and unsuccessful defendants.

Moreover, as here, the defendants in that

case were alleged to have violated state

as well as federal law. It was ultimately

found by the state court itself in Lugar

-8-

2)\4

Aw )U!I

ee

that the pre-judgment attachment itself

was not lawful under Virginia law and it

was dissolved, but the damages remained. @

The question remains one of whether this

case comes under Lugar and J/D has not

shown that no set of facts can be proven

which would bring it under that casehold-

ing on the point of acting under color and

authority of D.C. law. The assertions

that this Court earlier found that the

agreement of the Superior Court consent

order was purely a private agreement do

not alter that picture for reasons given

in the reply to Sun. It took years of ef-

fort for the plaintiffs to get to this

Court and have that fact pronounced. Be-

fore that Sun and J/D, from sometime be-

fore September 8, 1986 on pretended to all

and sundry that the consent order was a

2For more on this point see the ex-

tensive reply to the similar point made by

Sun in plaintiffs' reply brief to Sun's

opposition, part I.

-9-

a-3502

court order that must be obeyed as such.

Their conversion comes too late. What is

at issue is not what the consent order was

ultimately found to be by this Court but

rather what the defendants, including J/D

acted under. That is the language of the

statute.

iI. SUPERIOR COURT RULE 12-I(b) AND DUE

PROCESS

This brings us to the ingenious argument

in this opposition concerning Superior

Court Rule 12-I(b) as in effect at the

time. Unlike Sun, J/D acknowledges the

rule and the oblique reference to it even

in the original complaint. However the

J/D argument is that because the rule was

SO broad and vague it is not facially un-

constitutional but is rather "neutral".

Opp. pp. 20-21, 32-34. In support of this

contention J/D seeks to steer the Court

away from Lugar and to analogize this case

directly instead to Jackson v Metropolitan

Edison Co. (1974) 419 US 345, 355-57. In

-10=

Py 404

i.

Adickes the situation of the conspiracy

alleged between the white employees of the

Mississippi dime store lunch counter and

the Hattiesburg police in and near the

restaurant did not resemble the present

situation where no conspiracy is alleged

or relied upon. Similarly the Jackson

analogy is inapt. In Jackson it was not

an arm of the state, such as here its ju-

diciary, that was involved, but rather a

privately owned utility company. It is

hard to see how the two things are

analogous. The decision in Jackson spe~

cifically turned on the privately owned

status of the utility. Lugar, on the

other hand, as in this case, specifically

concerns the use of the procedures of a

state court as set by law. The use of

Jackson here muddies rather than clarifies

the waters. Nor does it stand for the

proposition advocated by J/D that there is

some kind of distinction between a govern-

ati~e

a-304

ment entities having regulations that

merely allow unconstitutional usage of the

state's authority and are thus allegedly

"neutral" and such regulations that posi-

tively mandate unconstitutional behavior.

The procedure found unconstitutional in

Lugar did not force Edmondson Oil to use

it. Edmondson Oil chose to use the state

procedure when it should have realized

that it violated due process. Similarly,

defendants here chose to use Rule 12-I(b)

for the purposes of seizure of Hoai's

franchise and damage to his property be-

fore judgment. 3 They obviously chose to

use Rule 12-I(b) as it then existed in or-

35ones, Day's inclusion of Superior

Court Rule 64-I at p. 2 and its attempted

use of that rule here are misleading and

irrelevant. Defendants did not even at-

tempt to use that rule and it is not in

issue. If they had so attempted, as we

have pointed out in the reply to Sun they

would have run into the pre-judgment at-

tachment statute which it is pursuant to.

That statute has narrowly prescribed

Safeguards which would have prevented what

happened here.

-l]2-

a=405

der to avoid those safeguards as well as

the safeguards of Rule 65. As we have

pointed out in our reply to Sun, we do not

think the proscription of Lugar can so

easily be evaded. Obviously the Superior

Court itself has realized the dangerous

nature of the overbroadness of the rule as

it then existed, because in the amendments

to the Rule effective January 1, 1991 it

eliminated the dangerously unconstitu-

tional ex parte provisions and added the

kind of specific safeguards contained in

the attachment before judgment statute.

(JA1675)

As to the contentions of J/D that there

is no deprivation of federal rights here: 4

_

4since Jones, Day did submit so much

outside material with its Rule 12(b) (6)

motion, thereby converting it into one for

summary judgment, the real issue is not as

Jones, Day and the lower court have ex-

pressed it, one of whether plaintiffs

properly alleged a deprivation of federal

rights but rather if there is any indica-

tion that the same actually occurred, even

if the court below was partially success-~-

ful in obscuring that possibility.

-13-

a-306

This is a somewhat incredible argument.

Surely attorneys in one of the largest law

firms in the country know quite well that

when they seek out a loophole like then

Superior Court Rule 12-I(b) so as to in-

voke the power of the court and at the

Same time avoid having to give the party

who owns the franchise in question notice,

they are violating that most fundamental

federal constitutional right - due pro-

cess, which, in the case of the district,

is protected by the Fifth Amendment.

Plentiful facts are alleged to show this

violation and the complaint, (JAO1-21) in-

artful as it may have been, alleges the

due process violation in paragraph 7

(JAO3) and in Count one paragraphs 43, 45

and 46. (JA17-18) In those paragraphs

there is certainly an allegation of the

First Amendment right to petition for

redress being violated and there are suf-

ficient facts alleged to show that by this

-l14-

is clearly meant both the deprivation of

Hoai's counsel of choice and of Hemenway's

right to represent his client and press

that client's petition for redress through

the Courts without the use by defendants

of the improper practice then obtaining in

the Superior Court by which Judge's

eliminated counsel without meaningful

analysis on all sorts of pretexts. This

was accomplished under color and authority

of the canon in App. 4 adopted by the

Court of Appeals, D.C. Code 1981 Ed.

(Michie's) Rules, Vol. 1, p. 183.

Since Lugar clearly does establish the

state action in this kind of use of state

procedures to take or attach the property

of others before judgnent it is also clear

that there is (because it is the D.C.) a

Fifth Amendment equal protection violation

here. It is hard to think of any more in-

vidious classification than siding

knowingly with criminals against their

-15-

a-303

victims and seeing that the processes of

the state ensure the preference for the

former over the latter.

We turn to the astounding claims con-

cerning the violations of the PMPA rights

of the plaintiffs, arguments rejected by

the Supreme Court. The J/D argument on

this topic seeks to confuse the Court into

accepting that because, under paragraph 29

of the complaint the plaintiffs allege

that Hoai has sued separately under the

PMPA he does not sue for deprivation of

his rights under it here.5 The two things

are not the same. It is one thing for a

franchisee to sue the franchisor under the

Specific procedures of 15 U.S.C. 2801 et

seq., namely 15 u.S.c. 2805(d) and another

for that franchisee to sue the franchisor

and others for violation of his civil

rights. There is nothing in the PMPA in-

ee

"The Hemenways' federal rights in this

regard would be derivative from Hoai's.

-l16-

dicating any intent on the part of Con-

gress to pre-empt the federal civil rights

laws of the reconstruction era, which were

certainly known to Congress in 1978 when

it passed the PMPA. The only preemption

of any other law in that Act is of state

laws, at 15 U.S.C. 2806 and it is quite

narrow, being confined exclusively to

preemption of grounds for termination at

common law and of the notice requirements

for termination. See Bellmore v Mobil Oil

Corporation (CA2 1986) 783 F2d 300, 304;

O'Shea v_ Amoco Oil Company (CA3 1989) 886

F2d 584, 593; Senate Report No. 95-731,

95th Cong., 2d Sess. 15, 17-19, Reprinted

in 1978 U.S. Code Cong. & Admin. News 875-

77. The courts have found certain proce-

dural preemption of state law by the

PMPA's procedural requirements. Id. and

cases cited. The Bsales case even if it

means what J/D says, is irrelevant here.

The point of Paragraph 20 is precisely

-17-

a=310

that here Hoai does not sue Sunoco under

the Act's narrow prescription; he sues all

the defendants under the civil rights

acts. so the fact that he could not sue

J/D under the PMpaA has no relevance. He

has not attempted to do so and certainly

did not do so in this Suit.

The Supreme Court, beginning in 1980

with Maine v Thiboutot (1980) 448 US 1, 4,

100 SCt 2502, 65 Led2d 555, has decided a

series of cases in which it made it clear

that 42 U.S.c. 1983 proscribes deprivation

Of federal statutory as well as constitu-

tional rights. The action will lie unless

(1) the statute does not create enforce-

able rights, privileges or immunities

within the meaning of 1983, or (2) Con-

gress has foreclosed Such enforcement of

the statute in question in the enactment

of that particular statute. Wright v

Roanoke Redevelopment and Housing

Authority (1987) 479 US 418, 423, 107 Sct

-l18-

766, 93 Led2d 781. We have just seen that

the only preemption in the PMPA is with

regard to narrow areas of state law. ®

With regard to the possibility of the

first exception: this was resolved against

the argument of Jones, Day in Wright,

supra and Wilder, supra, as well as in

Golden State Transit Corp. v Los Angeles

(1989) 493 US , 110 SCt 444, 107 Led2d

420, and Pennhurst State School and Hospi-

tal v Halderman (1981) 451 US 1, 19, 101

SCt 1531, 67 Led2d 694. A review of these

cases reveals that the only exceptions to

the general principle that the action will

lie whenever a federal statute is violated

are when the law in question was passed by

Congress and the context of the entire

SWe note, as the Supreme Court has,

that the inquiry about these exceptions is

not the familiar four part test of Cort v

Ash (1975) for determination of whether

there is implied private right of action.

Wilder v Virginia Hospital Association

(1990) 496 US __, 110 SCt __, 110 Led2d

455.

-19=

a=312

Statute and its legislative history revea]

that Congress intended neither to create

new substantive rights nor to require

States to recognize such rights, where the

Provisions of the federal statute are

hortatory and not mandatory, Wilder,

supra 110 Led2d at 46g. All of these ex-

ceptions involve federal laws impacting

governmental units and the statute creates

an enforceable right under 42 U.S.C. 1983

unless it merely prescribes a certain kind

Of conduct for the governmental unit or

the interest which the plaintiff asserts

under it is too vague and amorphous such

that it is beyond the competence of the

Judiciary enforce. Id. at 467. None of

that applies here. The PMPA creates, and

Specifically Preempts the states with

regard to, a narrow area of interstate

commerce, It creates a new procedural

System for franchisees as a nationwide

Class, a class defined in the Act, to have

the benefit of certain new substantive

rights, rights pertaining to the new con-

cept of "franchise relationship" which the

Act defines. It defines new rights

against arbitrary termination of the fran-

chise or non-renewal of the franchise re-

lationship or both and new rights for the

franchisee also concerning the notice of

termination or non-renewal which he must

be given. It could not be clearer. The

Supreme Court has spoken. This PMPA right

of Hoai is a federal statutory right en-

forceable under 42 U.S.C. 1983. The PMPA

was a statute designed by Congress to give

assistance to franchisees against ar-

bitrary termination and nonrenewal of

their franchises and to give some content

to their reasonable expectations of a con-

tinuing relationship with their fran-

chisors unless the franchisors have a le-

gitimate marketing and economic rationale

for the termination or failure to renew

=a2i«

n=314

the franchise. Senate report, supra.

That it could be used as a Sword to

deprive the franchisees of their right to

sue under 1983 for deprivation of the

rights it grants them would be to defeat

its broad remedial purposes.

The J/D opposition to the 1983 count

finishes with a bizzarre argument concern-

ing libel and slander and the privilege

that attaches against defamation in court

proceedings. All of that is irrelevant

here. There is no suit for libel and

Slander. The allegations of lying and

false swearing here and so forth are only

intended to show the bad faith that

defeats any Claim, however inarticulate,

of privilege for private counsel akin to

that granted to judges and prosecutors by

the common law. There is no privilege

against having one's bad faith shown when

it is relevant.

An examination of the two 1983 cases

cited on p. 36 reveals that they are not

applicable. In Holt v Castenada (CA9

1987) 832 F2d 123, 125-26, cert. den. 485

US 979 (1988), what was at issue was the

immunity of a witness against liability

under 1983 for testifying. That would not

seem to be relevant. No defendant here

testified in the Superior Court proceeding

except for Vo's having filed an affidavit

and that is not sued upon as the cause of

action. Again, however, its falsity goes

to credibility and bad faith. Katz v

Morganthau (SD NY 1989) 709 FSupp 1219

also concerns witnesses being sued under

1983 for testifying in a criminal prosecu-

tion and is not relevant here in that

regard. It also involved suing the prose-

cutors under 1983. That is not relevant.

The common law immunity of judges and

prosecutors is not available to these

defendants.

-23-

a=-316

III. JONES, DAy 1985 OPPOSITION

The complaint, even with plaintiffs hav-

ing been deprived, as set out in the reply

to Sun, of a reasonable Opportunity to

amend it, clearly alleges violation of

1985, not just of 1985(3). With regard to

both 1985(2) and 1985(3), however, J/D is

correct in pointing out that there needs

to be an element of racially dis-

Criminatory intent. we acknowledge that

the complaint, which, as gone into in

detail in the reply to Sun's Opposition,

Part II, plaintiffs haq reasonably

anticipated an Opportunity to amend, is

not clear on this point. The theory of

Plaintiffs in this regard is very simple,

and it is based on the Supreme Court's

holding in Griffin v Breckinridge (1971),

the same case relied upon by J/D. Hoai

and Vo are Vietnamese. Hoai was being

Preyed upon by Vo with the use of the

classic tactics of threat, including mur-

-24-

r4an

anaes |] /

der and extortion, which have been an un-

fortunate concommitant of immigration to

this country by virtually every sizeable

ethnic group that has come here. Sun knew

of this because it was told of it, as both

Peele and Vaughn have acknowledged. J/D

knew of it because J/D was there at the

TRO hearing when the testimony of the

threats and attempts of violence and the

extortion came out and, indeed, Roseman

and Ottman cross-examined Peele, Hoai and

the Hemenways about it. Vo sat during the

testimony and declined to contradict it by

testifying himself. Another J/D attorney,

Davidson, was present for part of the

testimony, but left precipitiously when

the violent threats and attempts were de-

scribed. He subsequently left J/D and

moved to North Carolina.

If J/D, in particular, had gone on and

simply conducted a follow on preliminary

injunction hearing under Rule 65 that

atta

A-318

ee

would have been one thing. But that is

not what they did. Instead they conceived

of a scheme under which they concerted

with Sun and its attorneys to evade a

Rule 65 preliminary injunction hearing and

to prevent appellants from having an op-

portunity to testify in any way to prevent

Hoai's franchise from being taken from him

and given to Vo in violation of the Con-

stitution and the PMPA rights of Hoai as

described above. The effect of this,

Knowingly anda intentionally, was to

relegate Hoai, and those assisting him, to

the private justice System of the rule of

threat and violence within the Vietnamese

community which Vo was seeking to create.

We believe that a jury is entitled to de-

cide whether or not this is treatment that

would have been accorded an ordinary Amer-

ican whose ethnicity was long asSimilated

under similar circumstances. We think

plaintiffs deserve to be allowed to amend

Te

4=41 7

their complaint to articulate this theory

better.

The theory involves both 1985(2) and (3)

because it involves a conspiracy by two or

more to impede, hinder, obstruct or defeat

in any manner the due course of justice in

the territory of the District of Columbia

under (2) for the purpose of depriving

Hoai of the equal protection of the laws

(that is, the same protection that an as-~

similated American with no such private

"Justice" system preying upon him and his

kind would have to face and also under (3)

for conspiring to injure Hoai and the

Hemenways in their property, consisting of

Hoai's station franchise, and the Hemen-

way's attendant contract and employment

rights, and for having exercised their

rights or privileges as citizens in caus-

ing the illegal scrambler Vo to have to

remove his thugs and hangers on from

- Hoai'ts station, and in standing up in

~27@

A=320

court and exercising their rights there.

It is that simple. By joining with Vo,

Knowing the illegal nature of what he was

doing, and by assisting Vo in his acts by

UuSing the Rule 12-I(b), there was a con-

Splracy to deprive Hoai of his equal pro-

tection under the laws and of his

privileges and immunities under the laws.

There was Fifth Amendment territorial ac-

tion. There was as well, and it is

articulated in the allegations of what was

done, though not directly as such, ” a

violation of 42 U.S.C. 1981 by the inter-

ference with the enforcement by Hoai of

his franchise contract and with the

employment contracts of the Hemenways, and

of their rights to sue, be parties, to

give evidence and to the equal benefits of

the proceedings in the Superior Court (as

Opposed to the private "legal system" of

’This is done in the amendment proposed

below under the relation back doctrine.

-28-

a4

vo and his extortionate compadres which

the defendants opted for instead. This

was indeed the effect of, and, a jury

could find, the intent of the using of the

ex parte procedure. Further, under Sec-

tion 1982 the same events interfered with

the right of Hoai to lease and hold the

real and personal property embodied in the

franchise, and for the Hemenways, through

him, the same.

The passage from Griffin which both

sides rely upon is this:

The language requiring intent to

deprive of equal protection, or

equal privileges and immunities,

means that there must be some ra-~

cial, or otherwise class-based dis-

criminatory animus behind the con-

spirators' action. The conspiracy,

in other words, must aim at a

deprivation of the equal enjoyment

of rights secured by law to all.

(footnotes omitted, emphasis in the

original)

No right is more fundamental, among

those secured by the law to all, than the

access to the law itself. It is the foun-

dation for all other rights, without which

-29°-

a-322

tnose rights WOuld not be enforceable at

all and would be aS hollow as the glorious

sounding rights ostensibly granted in con-

Stitutions of the Eastern bloc, where

every day there is greater testimony to

their total uselessness without a ful]

System of courts governed by the rule of

law. The private "System of Justice" of-

fered by the Vo's of the world who prey

Upon their own ethnic Kind seeks to dis-

Ccriminate against its victims in the most

invidous way of all, by cutting off access

to the courts that the rest of us enjoy,

by maneuvers such 4S this which make a

mockery of que Process and Champion the

rule of the brutal, outlaw aggressor over

the legitimate rights of the law-abiding

within that ethnic group. Those who con-

cert and conspire to aid one Such as Vo

Know the effect of what they do and their

animus is to join in that deprivation of

equal rights, to favor the strong man who

-30-

r 4 Zz

blocks equal access to justice for his own

people. Just before this passage the

Court says:

giving full effect to congressio-

nal purpose -- by requiring, as an

element of the cause of action, the

kind of invidously discriminatory

motivation stressed by the sponsors

of the limiting amendment. (empha-

sis added) See the remarks of Rep-

resentatives Willard and Shel-

labarger, quoted supra (emphasis in

original), at 1797.

This is precisely what plaintiffs allege

is the case here. An element of the cause

of action is indeed just that kind of in-

vidously discriminatory motivation. We

are not talking here about depriving of a

particular right under the law, as with

1983, rather we are talking about any ac~-

cess to the law the rest of us enjoy at

all. To see this it is only necessary to

advert to the remarks of Representative

Shellabarger referred to, viz.:

"... that any violation of the

right, the animus and effect of

which is to strike down the citizen,

to the end that he may not enjoy

equality of rights as contrasted

with his and other citizens' rights,

-3l-

a=524

Shall be within the scope of the

remedies of this section." (emphasis

added)

It seems to plaintiffs that this replies

to the contentions of J/D better than any-

thing plaintiffs can say. For we think

that a jury may, and is entitled to, de-

Cide that what the defendants intended,

their animus, and what they effected, was

precisely to "strike down" Hoal, to the

end that he might not enjoy that equality

of rights he should have been able to en-

Joy along with all other Americans, full

and unhindered access to the Court to en-

force his franchise agreement and then to

have been able to operate for the rest of

his life with his friends the Hemenways to

assist him in that endeavor.

IV. THE NEW CLAIMS OPPOSITION

We reply that, under the circumstances

gone into in the reply to the Sun opposi-

tion, part II, it is important for the

Court to realize that there easily could

-320-

be a properly curative amendment. There

is no attempt to make that amendment part

of this appeal. Similarly the 1981 and

1982 claims are substantively alleged in

the first complaint, which is part of the

appeal.

V. PROCEDURE

We do not find Roseman's affidavit as

innocuous as argued. It is an affidavit

outside the record, regardless of the at-

tempt to downplay its substance. Further

its selections of matters from other

records were not complete and were taken

misleadingly out of context in many in-

stances. They were not certified and if

plaintiffs had been allowed to answer them

fully the plaintiffs would have to do a

lot of work and submit a lot of additional

documents to make sure the distortions

thus introduced were corrected. They were

not given the chance. This is a classic

example of a large firm using its large

-33-

photocopy machine to seek to win the day

Dy preventing proper focusing on the

merits. None of the three cases cited by

J/D for looking beyond the record without

going to Summary judgment involved any-

thing such as the "big xerox" technique

used here. The first involved no ex-

traneous documents other than letters in-

corporated in the complaint. In the sec-

ond notice was taken of a man's judicial

commitment to St. Elizabeth's. In the 9th

Circuit case note was taken of complete

records from the state administrative body

whose decision was being appealed. None

of the three cases (Pp. 45) involved the

distorting dumping technique used here.

Respectfully submitted.

Laurence A. Elgin # 159582

8929 Sleaford Place

Annandale, Virginia 22003

(202) 628-1114

John D. Hemenway #379663

4816 Rodman Street, N.W.

Washington, D. C. 20016

(202) 244-4819

CERTIFICATE OF SERVICE

I hereby certify that I have served by

U.S. mail, first class, postage prepaid,

two true and accurate copies of the fore-

going BRIEF this 12th day of April, 1991,

upon each of the following: J. Gordon For-

ester, Jr., Greenstein, DeLorme & Luchs,

Suite 300, 1220 19th Street, NW, Washing-

ton, D.C. 20036-2400; Robert Pleshaw, 729

15th Street, NW, Washington, DC 20005;

Francis X. Markey, Jones, Day, Reavis &

Pogue, 1450 G Street, NW, Washington, D.C.

20005.

John D. Hemenway

-35-

A=328

Oral Argument scheduled for

May 13, 1991, 9:30 am

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA

ee sets

RECORD NO. 90-7170

THANH VONG HOAI, et al.,

Appellants,

THANH VAN VO, et al.,

Appellees.

seer

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF COLUMBIA

REPLY BRIEF FOR APPELLANTS THANH VONG

HOAI, DAVID HEMENWAY AND JOHN HEMENWAY

REPLYING TO

BRIEF FOR APPELLEES SUN REFINING AND

MARKETING COMPANY, J. GORDON FORESTER,

JR., JEFFREY WAGNER AND JOSEPH ZULLI

Laurence A. Elgin

8929 Sleaford Place

Annandale, Virginia 22003

(703) 425-7879

John D. Hemenway

4816 Rodman St., N.W.

Washington, D.C. 20016

(202) 244-4819

Attorneys for Appellants

April 12, 1991

A-330

THANH VONG HOAI,

et al., Appellants,

V 7.

THANH VAN Vo,

et al., Appellees.

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT oF COLUMBIA

Record

)

)

)

)

)

)

TABLE OF CONTENTS

Table of Contents

Certificate of Service

List of Authorities

I.

LI.

i? a

REPLY TO SUN'S OPPOSITION

TO PLAINTIFFS! 42 v.8.c.

1983 CLAIMS

PROCEDURAL QUESTIONS:

CONVERSION TO SUMMARY

JUDGMENT WITHOUT OPPORTUNITY

TO AMEND OR SUPPLEMENT; NO

FACT STATEMENT; IN THE FACE

OF OUTSTANDING MOTIONS TO

STAY

THE 42 U.S.C. 1985 COUNT

CHILLING WITH A SHOW CAUSE

PRAYER FOR RELIEF

CIRCUIT

Number 90-7170

Item Page

1ii

bY

CERTIFICATE OF SERVICE

I hereby certify that I have served by

U. S. mail, first class, postage prepaid,

two true and accurate copies of the fore-

going Brief this l2th day of April, 1991,

upon each of the following : J. Gordon

Forester, Jr., Greenstein, DeLorme &

Luchs, Suite 300, 1220 19th Street, NW,

Washington, D.C. 20036-2400; Robert

Pleshaw, 729 15th Street, NW, Washington,

pe 20005; Francis X. Markey, Jones, Day,

Reavis & Pogue, 1450 G Street, NW, Wash-

ington, D.C. 20005.

John D. Hemenway

A-332

:

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

THANH VONG HOAI,

St al., Appellants,

V~

Record

Number 90-7170

THANH VAN VO,

et al., Appellees.

)

)

)

)

)

)

TABLE OF AUTHORITIES

[tem Page

District of Columbia v,

Air Florida, Inc. (CA DC 1984) 16

re ee he

Donaldson y, Clark (CAl11 1987)

819 F.2d 155] 16

Gardels v. Central Intelligence

Agency (CA DC 1980) 16

Lugar v. Edmondson Oil Co.,

456 US 922, 102 S.Ct. 2744 2

Parratt v. Ta lor, (1981)

451 US 527, 101 S.ct. 1908 14

Thompson v, Evening Star

Newspaper Company

(CA DC 1968) 16

OTHER AUTHORITIES

D.C. Code 1981 (Michie) Rules,

Vol. 1, p. 183

Lexis/Nexus Report on January 1991

press conference of Gen. Colin

Powell

394 F.2d 774

Certificate of Service ii

ist of Authorities iii

a

II!

REPLY TO SUN'S OPPOSITION

TO PLAINTIFFS' 42 U.S.C.

1983 CLAIMS 1

PROCEDURAL QUESTIONS:

CONVERSION TO SUMMARY

JUDGMENT WITHOUT OPPORTUNITY

TO AMEND OR SUPPLEMENT; NO

FACT STATEMENT; IN THE FACE

OF OUTSTANDING MOTIONS TO

STAY 13

.THE 42 U.S.C. 1985 COUNT 18

CHILLING WITH A SHOW CAUSE 20

PRAYER FOR RELIEF 20

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA

[HANH VONG HOAI, et al. )

Appellants, )

¥ ) USCA Number

) 90-7170

THANH VAN VO, et Gis. )

Appellees, )

REPLY TO SUN'S OPPOSITION To PLAINTIFFS

42 U.S.C. 1983 CLAIMS

he

The opposition of the Sun defendants

(Sunoco, Forester, Zulli, Wagner,

hereinafter, collectively "Sun") to

Plaintiffs' 1983 Claims center around an

alleged failure to have the requisite in-

volvemént with the color and authority of

state (D.C.) law. Sun's opposition ig-

nores the use made Cf the rules, canons

and practices of the D.C. Superior court

by defendants to achieve the Seizure of

plaintiff Hoai's Property and deprive him

and his agents, the Hemenways, of federal

rights. Instead, Sun points to the fact

that defendants used the facially un-

constitutional Provision of Superior Court

-l|-

_£_<__E

Rule 12-I(b) as then existing, along with

other rules and practices of the Superior

Court, to violate, ultimately, D.C. law as

well, as a shield against 1983 liability.

Under this argument, parties may use un~

constitional and federally prohibited

rules and practices of a state court, if

they are also careful to violate other

state law (As ultimately found, provided

the damaged party can survive long enough

and fight hard enough.) We disagree.

Plaintiffs read Lugar? to hold that even

when the damaged party may eventually be

vindicated under state law, if, in the

meantime, the court's regulations and pro-

cedures provide for the attachment, or, as

in this case, (even stronger, ) the seizure

of another's property in violation of due

process and other federal rights, then

private parties are not free to use those

lrugar v_ Edmondson Oil Co. 456 US 922,

102 SCt 2744, 73 Led2d 482

Procedures without incurring Potential

liability under $a U.8.¢, 1983, particu-

larly should they do so maliciously,

Sun would have this Court believe that

what it did was what any attorney and

Client would do. The allegations of the

complaint make it Clear that Plaintiffs

believe otherwise. Ordinarily attorneys

and their Clients, uSing the Ordinary pro-

cesses of the Court, do not connive to use

its facially unconstitutional rules and

Practices to undermine the very law that

same court system is supposed to uphold

State or federal. Superior Court Rule 12-

~

i

I(b) (JA 1674) as then in effect,

provided

an opening which those bent on Violating

the federal and constitutional, (and D.C.)

rights of others could drive a truck

through. And that is what happened here.

Faced with the Possibility of a full

preliminary injunction hearing which would

have reversed a TRO which was itself ob-

tained by the use of some rules and

customs of questionable validity (though

the TRO procedure itself was not and is

not alleged to be part of the 1983 viola-

tion) and would have allowed the testimony

of Mr. Vo's extortion and threats of

violence and murder to defeat the taking

from Mr. Hoai of his station, the

defendants found the device of Rule 1l2-

I(b) and, bypassing any form of trial or

hearing, were able to use the Superior

Court's ex parte provision in that rule, a

provision surrounded with no safeguards

whatsoever, to carry out their scheme to

attempt to make sure that without trial

they could so damage Mr. Hoai and those

who might assist him that there would be

no hearing or trial. JA p. 389-390,

paras. 39-45.

What Sun attempts here is a sort of

Hobson's choice. On the one hand, Sun

says, there was no involvement with the

state sufficient to create €@ 1983 cause of

action because the attorneys and their

clients knew they were Violating the law.

Opp., pp. 9-10) On the other hand, even

lf there was involvement with the state it

was only attorneys going about their

argumentation of the Opposition has a

Straddling quality to it. If the allega-

tions of the complaint are accepted? then

the defendants were not just attorneys

with their clients going about their

normal business. But, says Sun, it is the

allegations that the defendants were pur-

posefully violating the defendants' feder-

al rights, and their D.C. rights as well

while they were at it, that show that

there was no color and authority of state

law involved. Under this theory of 42

U.S.C. 1983 Jurisprudence, the wrongdoers

“See below part II.

who purposefully find a facially un-

constitutional procedural provision in the

rules of a state court by which they may

maliciously bypass both federal and state

law to seize the property of their victims

without benefit of hearing or trial and

harm those victims severely while they are

at it, may not suffer liability under

1983. They have an airtight system for

violating federal rights by the use of

state law. By using the state court pro-

cedures and manipulating the personnel,

(D.C. judges and staff of the Clerk's of-

fice in this case,) maliciously and

knowingly they insulate themseives against

being liable for the violation of the fed-

eral and local rights under the color of

the state court's rules and practice such

as Superior Court Rule 12-I(b) even if

that rule was at the time unconstitutional

on its face. But if challenged, should

the victims survive and be able to fight,

~6=

n=-340

the wrongdoers can just assert that they

were merely attorneys and clients doing

their job. Plaintiffs submit that neither

the theory that consciously wrongful use

Of facially valida regulations and prac-

tices nor Sun's theory (not candidly

articulated as such) of absolute immunity

for private attorneys and their clients

who are consciously misusing local court

regulations and practices to Knowingly

deprive others of federal rights will sur-

vive Scrutiny under the cases of recent

years.

In opposition Sun quotes Lugar for the

following proposition:

Not only must the plaintiffs

be deprived of their rights under

color of law, the "...party charged

with the deprivation must be a per-

son who may fairly be said to be a

state actor." Opp., p.7

The Court will note that the immediately

following sentence, which applies directly

to this case, is omitted by Sun, viz.:

This may be because he is a state

official, because he has acted to-

gether with or has obtained aid from

state officials, or because his con-

duct is otherwise chargeable to the

State. (Lugar 457 US at 937)

Sun skips over this passage, which is the

one really at issue here, and goes on to

talk about the preceding sentence without

the following one as a limit. Then Sun

segues into a passage (opp. p.8) which

acknowledges that Lugar was a case where

"a private party jointly participates with

3 There follows a

state officials".

diminuendo in which it is not really ex-

plained why that was not the case here.

There is merely the characterization that

Lugar followed a long line of attachment

cases -- as if that explained something.

3In the Court below, where the record

in this and the companion case shows Sun

has great control, it shows that Sun

argued that the wrongdoers had to be state

officials or in conspiracy with state of-

ficials. JA 446-50. Apparently it feels

that at this level its diversion tactics

have to be cleverer, at least at first, as

will be seen at p. 10 of the opposition.

-8-

a=-342

No effort is made to explain why this is

not a similar situation. It may be

noticed that D.c. has a pre-judgment at-

tachment statute and rule. But they have

Safeguards, such as hearings and due pro-

cess, and did not provide the Opening that

Superior Court Rule 12-I(b) did. ss «ia

sun's contention that if one can find

state court rules and Practices which

aren't labelled "pre-judgment attachment"

and can use them to effect an attachment,

Or, as here, an Outright seizure, of a

man's property without benefit of hearing

or trial, then it's ox. Plaintiffs reply

that if the set of rules and practices at

issue has the effect of enabling the mali-

clous user of it to take the property

without hearing or trial long before the

Same can be reached then it is a Lugar

Situation, regardless of what it's called.

The use of a facially unconstitutional

Provision to effect a pre-judgment seizure

-9-

ZAR

?/

+

2

in violation of due process, of PMPA

rights, and other rights in avoidance of,

a legitimate pre-judgment attachment pro-

cedure with safeguards, is a fortiori a

greater infringement upon the prohibition

of 42 U.S.C. 1983, not a "safe harbor".

Sun may not escape the Rule of Lugar by

such sophistry.4

After "sliding off" the meat of this

issue, (p. 8) Sun asserts "plaintiffs com-

plain of the issuance of a Temporary

Restraining Order followed by a consent

order." This, plaintiffs believe, is

designed to mislead. Plaintiffs do not

complain of the TRO per se as a violation

of 42 U.S.C. 1983 though, for reasons

going to the motivation and intent of the

defendants, plaintiffs believed it neces-

sary to assert the wrongs used to obtain

4we note that Sun nowhere mentions or

discusses the actual language of the Supe~

rior Court Rule in question, not even

listing it in its list of authorities.

=10<

A=544

the TRO. It was the "extending" of th

TRO through the fatially unconstitutional

Judge in chambers rule that violated 1983

and is the linchpin of this action. Sun

seeks to implicate the Court in a sort of

misleading rhetorical "wink that

plaintiffs are attackers of the court pro-

cesses as such. That is not the case. We

Say that the use of the court's normal

process, regardless of false Swearing and

like having been usea to obtain the TRO,

Violates 1983, |

We say that the use of the unconstitu-

tional rule Violates 1983 ana chat,

coupled with the use of the canons of

ethics as adopted by the D.C. Court of Ap-

peals” to "Sandbag" Mr. Hemenway as was

practiced then by Superior Court judges,

violates 1983, that the use of the D.c. ZL

& T law to Override Plaintiff's PMPA

"D.C. Code 198] (Michie) Rules, Vol. 1,

rights, the use of the practice of allow-

ing “payment” of supposedly pre-~

conditional bonds with checks that can

easily be NSF (in this case drawn on the

empty account of the seized business, an

account set up and controlled by the

wrongécer himself, JA pp. 1100-02) violate

1983. We admit that these matters were

not specified in the complaint, whether

that be a failure to plead evidence or a

failure to meet heightened pleading re-

quirements.

But we point out that: A) Plaintiffs had

moved for a stay pending the resolution of

the related PMPA litigation before tne

same judge (JA pp. 1410 et seq., 1435 et

seq.) so that they might supplement and

amend once the matter of the PMPA rights

of plaintiffs was resolved by the then

pending summary judgment in the PMPA case,

which were never ruled upon, and B) the

court below converted from dismissal mo-

al Gu

A=-346

tions to summary Judgment motions without

allowing any Opportunity after the pmpa

decision for the contemplated amendment

and supplementation and without requiring

any Local Rule 108 fact Statement from the

movants and did so on the same day as the

Summary judgment in favor of Plaintiff

Hoal was granted in the PMPA case. Later,

in a hearing on the record in this case

below the lower court candidly revealed

its motivation (JA 1592, lines 22-23) as

being the same as that expressed by Gener-

al Colin Powell which he had stated on CNN

to a watching world just a few days before

~- to cut off and kill what Sun was des-

cribing as all the litigation of Mr. Hoai.

Sun implies, without articulating, an

immunity for private counsel and their

clients akin to the traditional common law

immunity for judges and prosecutors. we

disagree. This was not the normal use of

Superior Court procedures. It employed fa-

at Se

x 4°

a— DG |

—

cially invalid rules and practices in bad

faith. The single district court case

cited by Sunoco does not provide suffi-

cient grounds to justify the decision of

the lower court here, on a dismissal mo-

tion converted to summary judgment without

proper follow through procedures, that

normal court process were being followed

and that it was simply a resort to the

court's processes.

At the bottom of p. 8 Sun quotes from

this Court's decision on the intermediate

appeal in the PMPA case of Mr. Hoai.

Then, on the following page Sun, ignoring

the Supreme Court's holding in Lugar, as~

serts that 1983 requires 14th Amendment

state action and that there was none of

that here. The thesis is that because

this Court earlier ruled that the consent

agreement was but a private agreement be-

tween the two sets of defendants here, &

cannot have been state action. Plaintiffs

-14-

n=346

reply that it is the essence of 1983

Violations that acts which are not proper-

ly state actions are Clad, falsely, as ac-

tions of the State. This was one Such.

some state actions involve actual state

Officers exceeding any legitimate

authority granted them by the state and

thus wrongfully "going private." Others,

Such as here, involve Private parties

making use of legitimate state actors for

illegitimate Purposes, purposes which are

invalid under the federal Constitution and

+awS, because of regulations and practices

which enable such usage, Sun seeks to

confuse the two types. The state offi-

Cials in Lugar who served the attachment

Pursuant to the unconstitional attachment

Statute and Procedures were no different

than Judge Eilperin of the Superior Court

here, But he is immune; these defendants

-l15-

Zz

1-= D449

are not. ©

We should like to point out the mis-

leading nature and essential inaccuracy of

statements on pp. 11-12. It is

represented that Rule 65 provides for a

hearing upon two days notice where there

is an ex parte notice and that instead of

invoking this rule Mr. Hoai appealed the

consent order. This deliberate confusion

of the rule regarding ex parte TRO's with

what happened here with a consent order

executed by the Superior Court judge under

the unconstitutional judge in chambers

rule, the Court may recall, was also at-

tempted by this same counsel in the PMPA

case and waS there rejected by this Court.

Rule 65 procedures were not misused here

by the defendants, the judge in chambers

6Tt seems particularly inappropriate

that in a case where intent of the

defendants is so crucial a factor, there

should be the conversion de facto to sum-

mary judgment and a decision in summary

judgment without even a fact statement.

-16-

a-350

rule procedures were. Under Rule 65, had

lit been invoked Properly, all Darties

would have had to have been notified and

Co have signed off on any consent order

which, under federal case law, is Clearly

a conversion of a TRO into a de facto

Preliminary injunction. Use of Rule 65

WaS avoided by defendants Precisely be-

Cause its Safeguards would have foiled

their scheme.

The Court will recall and notice that

in its earlier decision on the PMPA case

intermediate appeal on the abstention

question this same counsel attempted to

convince it of the falsehood that mr. Hoai

WaS responsible for the action in the sy-

perior Court in some Way and that there-

fore Mr. Hoai could not pursue his federal

Claims in the court below and that mr.

Forester did so repeatedly in that inter-

mediate appeal in both filings and oral

argument and that this Court had to point

-1]7<-

out to him, which is in the record, that

Mr. Hoai had not pressed his federal

claims in the Superior Court until ab-

solutely compelled to do so by the com-

bination of the inaction of the Superior

Court, the treatment he received there and

the stay of his claims without proper

analysis by the court below. The Court

should not then be surprised at these con-

tinuing misrepresentations and attempts to

mislead.

Thus the Court should not be surprised

that Sun repeats its now thoroughly re-

jected preclusion argument. A TRO is not

res judicata and cannot effect collateral

estoppel. Yet Sun makes that argument

over and over again. It pled those

defenses in the PMPA case and moved to

dismiss on that basis. The lower court

denied that motion without analysis or

comment and, without proper analyis, sua

sponte, entered a stay based on the ab-

-18-

A=4352

stention doctrine. sun nonetheless con-

tinued those arguments before this Court

in the ensuing intermediate appeal in the

PMPA case and was firmly rebuffed. On

remand it continued to raise the arguments

in filing after filing and does so in

filings and oral arguments to this day.

Plaintiff Hoai's motion in that case to

have this continual baseless use of these

preclusion arguments sanctioned and

stopped was ignored by the court below and

Simply dismissed as allegedly moot without

comment when the summary judgment mandated

by this Court's earlier decision in that

case was finally granted by the court be-

low. Even earlier, as Sun acknowledges,

the D.C. Court of Appeals had ruled that

there was no decision on the merits in the

Superior Court case. Sun acknowledges

that the case is Stayed -- and yet con-

tinues, as here, to argue preclusion. In

the oral hearing before the D.C. Court of

-19-

Appeals Judge Reilly in particular, was

somewhat incredulous when informed that

Sun was doing this continually. He in-

quired as to why other courts did not just

tell Mr. Forester that this was not so as

a matter of law. Sun has still not

stopped this baseless assertion. ”

Finally, it should be noted that the

last sentence of Sun's 1983 opposition is

another misleading "tag line" presented

without analysis or support in the hopes

that if enough irrational and misleading

7tt should be further noted that it is

a matter of record in the Superior Court

proceeding, admitted to by Vo's attorney,

Michael Arif, that Vo, through Arif, had

settled the matter in its entirety by

agreeing to abide by the decision of Sun's

Mr. Peele as to who was the franchisee.

Peele's decision was that Hoai was the

franchisee. See record of arbitration at

JA 624 et seq. The transcript of the

Peele arbitration was ratified at Peele

deposition JA 1705-1708. Filing such a

pre-emptive strike suit in violation of a

valid settlement agreement, agreed to by

both Vo and Sun, was itself a sanctionable

act. Not only did Mr. Vo file suit first

and initiate all of these events, he did

so baselessly and was then effectively

joined in that baseless effort by Sun.

-20-

A=394

assertions are thrown out some will stick,

a technique which has worked admirably for

Sun in the lower court. Obviously there

was no wrongful eviction found in the su-

perior Court as the merits have yet to be

decided. Further, the decision by the

lower court on Mr. Hoai's PMPA Claims, (JA

964 and JA 979) compelled by the earlier

appellate decision of this court, made it

clear that there was no wrongful eviction

by Mr. Hoai. For Hoai was the franchisee

and was terminated by Sun on September 8,

1986. That is now res judicata by the

lower court's summary judgment. Then Vo

was, in Prosser's phrase, a "mere scran-

bler" and wasn't wrongfully evicted. It

is now clear that by virtue of the illegal

termination it is Sun that wrongfully

evicted Hoai under that tortious doctrine

in the District. It is this sort of thing

that caused plaintiffs to move to stay the

decision on the dismissal motions of

-2li-

A=355

defendants until the resolution of the

PMPA summary judgment motions.

II. PROCEDURAL QUESTIONS: CONVERSION TO

SUMMARY JUDGMENT WITHOUT OPPORTUNITY TO

AMEND OR SUPPLEMENT; NO FACT STATEMENT; IN

THE FACE OF OUTSTANDING MOTIONS TO STAY

Plaintiffs filed the complaint as the

statute of limitations was about to expire

while the lower court was taking over a

year to decide their summary judgment mo-

tion in the PMPA case. Hoai's PMPA sum-

mary judgment motion was filed in March,

1989 but wasn't decided till October l,

1990. Forced to file a complaint whose

allegations were necessarily going to be

reshaped by what was later decided on the

liability question in the PMPA case,

plaintiffs moved to stay the resolution of

the 1983 count pending the PMPA outcome,

and then to allow for.consideration of the

impact of that then pending decision on

the 1985 count. JA 1410 & 1435. In light

of the impact of the issues in the PMPA

-22-

a=356

case, where Sun had cross-filed for sum-

mary judgment, this was logical.

Not only did the resolution of the

PMPA claim establish unequivocally the

Violation of Mr. Hoai's PMPA rights per

se, which also affected the rights of the

Hemenways as his attorney and agent, but

also it had, it became more and more ob-

vious, many other effects as well. The

question of Vo's being a mere scrambler so

as to completely eliminate the red herring

Of Hoai's alleged wrongful eviction was

just one of then. Such things as the

availibility of a state common law remedy

under the doctrine Of Parratt v Taylor

(1981) 451 US 227, 101 SCt 1908, 68 Led2d

420) would be one affecting the 1983

count. Such things as the Claims of

plaintiffs for having been injured in

their property for having been witnesses

and parties at the TRO hearing in the Su-

perior Court would be very much affected

-23-

«457

Ae) I

by the unknown outcome of the PMPA case --

it became apparent. That the franchise

was Mr. Hoai's property was an issue af-

fected by the outcome of the then pending

cross motions for summary judgment in the

PMPA case. It thus seemed eminently logi-

cal to await the outcome of those motions

before undertaking to finalize the brief-

ing and seek whatever amendments would be

appropriate in this case.

Further, it is the law that when af-

fidavits are filed with a dismissal motion

under Rule 12(b)(6) for failure to state a

claim and not excluded, (e.g. The Roseman

Affidavit JA78 with exhibits A-L to in-

clude JA400, some 300 plus pages) the mo-

tion resolves into a summary judgment mo-

tion. The Court is then obliged to an-

nounce that resolution into a summary

judgment motion and, in all but excep-

tional cases, allow some days (generally

at least 10) for further briefing, amend-

-24-

A=358

ments to cure pleading defects, and mo-

tions for any discovery deemed necessary

to resolution of the converted motions.

(The Court below referred to these af-

fidavits in its Memorandum Opinion in five

different places. See:JA957) In addition

there is the safeguard below of the fact

statement required by Local Rule 108 from

the moving parties. All that was ignored

here. Instead, on the same day that the

long-delayed summary judgment in favor of

Hoai in the PMPA case was granted, this

case was dismissed and a show cause was

issued against counsel.

Subsequent events of record made it

clear just why this was done and, though

those subsequent events were not, obvious-

ly, before the lower court when it made

its present decision, under the unusual

circumstances of this case, because they

candidly reveal the intentions of Judge

Oberdorfer toward not only this litigation

-25-

but toward plaintiffs in general and Mr.

Hoai's litigation as a whole and in par-

ticular when he made the decision which is

the subject of the appeal. Plaintiffs

were forced by the decision appealed from

to respond to its show cause and to do so

without specificity as to what it is that

they were supposed to have done that vio-

lated Rule 11. In dealing with the sword

hung over their head by the show cause

plaintiffs and their counsel became con-

vinced that not only had the lower court

erred but that it had made serious mis-

takes and accordingly filed a Rule 60(b)

motion, which is still pending. At the

ensuing hearing, Feb. 5, 1991, the lower

court revealed its intentions in doing

what it did in issuing the decision, in-

tentions which clearly are the sort of ex-

ceptional circumstances that make the ig-

noring of the procedural requirements

normally surrounding summary judgment mo-

-26-

A=360

tions, and particularly those converted

from Rule 12(b) (6) dismissal motions, 8

abusive of discretion and which also make

the ignoring of the fact statement re-

quirement of Local Rule 108 abusive? and

which, further, make the consideration by

this Court of arguments not made below in-

perative. For there can be no arguments

below where the Party who might make them

has been deprived of the Opportunity to do

So by the court below. See the opinion of

this Court in District of Columbia v_ Air

Florida, Inc. (cA pc 1984.) 750 F2da 1077,

1084-1085.

As the record transcript of that hear-

ing Shows, counsel for Sun once again

relied principally upon his oft-rejected

SSee Donaldson v Clark (CAll 1987) 819

F2d 1551, 1555.

9See this Court's opinion in Gardels vy

Central Intelligence Agency (CA Dc 1980)

637 F2d 770, 773-74 and Thompson v Evening

Star Newspaper Company (CA Dc 1968) 394

f2d 774, 776-77 and the other cases cited.

27a

n=-461

but just as often revived preclusion argu-

ment, describing once again, couched in

terms of a virolent attack on counsel

(JA1573-1577), all of the litigation sur-

rounding Mr. Hoai he could muster, (JA1575

and JA944-946) regardless of whether it

involved his client and the events at is-

sue in this case or not and regardless

that the only decision of any finality did

not involve his client or any defendant in

this case other than Mr. Vo and involved

federal statutes not at issue here, name-

ly, RICO. Again Sun conveniently ignored

that litigation was initiated by Vo.

Going on at length ina thinly disguised

repetition of his preclusion argument, Sun

begged the Court to stop all of Hoai's

litigation, speaking of it inclusively,

not just this case. Following the per-

sonal attack on counsel, the lower court

responded to Sun by stating unequi-vocally

as follows: "The Court: I want to get

-28-

A=362

this done. What was it that General

Powell said? Go ahead." (JA1592) We ask

the Court to note that the cited Feb. a

1991 hearing was just one week after Genl.

Powell had said to the entire nation and

virtually the entire world on the most

viewed television show ever produced that:

“First we are going to cut it (the enemy)

Off, and then We are going to kill it."

(JA1697-8)

Under these circumstances safeguards

Should have been observed not ignored,

and plaintiffs’ Stay motions should have

been ruled upon when the PMPA summary

judgment was granted to Hoai with the

moving parties in this case required to

file a statement of facts claimed to be

undisputed and with time for plaintiffs to

file Supplementally, amend and seek

whatever discovery would be necessary. It

is the purpose of the Summary judgment

procecure to assure that there are no

material factual disputes which should

properly go to trial. In a case where in-

tent is very much at issue, it was clearly

the intent of the court below itself to

ensure that plaintiffs did not get an op-

portunity to establish that there were

material facts in dispute and that the

complaint not be amended as it should have

been.

III. THE 42 U.S.C. 1985 COUNT

The unamended complaint (ja01-22) was

not artful because of the need to get

something in before the statute ran once

it became apparent that the PMPA case was

not going to be decided before the three

years had run, even though the summary

judgment motion had been pending for over

a year. It did not allege a violation of

only subsection (3) of 1985. It alleged a

violation of 1985. (JA19-20) In opposi-

tion it is pointed out that the depriva-

tion of equal rights under 1985(3) re-

-30-

a=564

quires the racial animus or Other class

pased inviduously discriminatory intent.

The allegations of this in the original

complaint?® are not as complete as they

could be, but it is clear: (1) that Hoai

and Vo are Vietnamese; (2) that Hoai is a

righteous Vietnamese and that Vo is an

evil thug who preyed upon Hoai as he ex-

Clusively preys upon his fellow ethnics to

the exclusion of other Americans; (3) that

the other defendants knew this, and (4)

that the Sun defendants in particular

chose to abandon Hoai and give his proper-

ty to Vo in violation of the federal

rights of plaintiffs. Judicial notice

Should be taken of community knowledge of

l0as part of their Rule 60(b) motion

plaintiffs have moved to amend. However,

in light of the lower court's expressed

intent it seems unlikely it will rule on

the reconsideration motion out of fear

that a ruling against plaintiffs on that

motion would be appealable to this Court

in time to be considered as part of this

appeal, preventing the intended cutting

off of Hoai's litigation.

3 l-

Zhe

a@=)0%

racially oriented violence directed at

Vietnamese. This we say bars plaintiffs

from equal access to relief under the laws

that are supposed to govern us and be

available to all. Sun consciously decided

that Vietnamese are such second class

citizens and that a righteous Vietnamese

could be denied access to the general law

and its instruments. Every casual reader

of American newspapers knows that Viet-

namese are commonly abandoned to the fa-

miliar ethnic "mafia" type of organization

that has plagued virtually every immigrant

or minority group. This illegally dis-

criminates, we argue, whether that conten-

tion is considered as applying the meaning

of the statute or as a good faith exten-

sion of existing law. If private citizens

can sue such characters and those who

cooperate with them under 1985, such ac-

tivity can be stopped by citizens thenm-

selves who are members of such ethnic

JroupsS and who desire equal access to

American justice. See our fuller discus-

sion in the reply to the opposition of the

Jones, Day defendants.

IV. CHILLING WITH A SHOW CAUSE

Every court of appeals that has con-

Sidered th new version of Rule ll has

cautioned in one case or another that it

Should not be used to chill creative or

Vigorous advocacy. Here the lower court

has stated that its purpose is to cut off

and kill Mr. Hoai's litigation. (JA 1592;

cf JA1697) Further, it has done so by

“

imply issuing a show cause as part of its

decision (JA955) where the rest of the de-

cision consists of adopting the brief of

certain of the defendants (Jones,

Day) (JA1032-1063) without independent

analysis, relying upon the findings and

conclusions of those defendants in a man-

ner which would not have been Supported by

the record if the lower court had not been

assiduous in making sure that there would

not be a full record for this court to

review.

V. PRAYER FOR RELIEF

For all of the foregoing reasons, ap~

pellants pray that their cause will be

remanded to the District Court for trial.

Respectfully submitted.

Laurence A. Elgin # 159582

8929 Sleaford Place

Annandale, Virginia 22003

(202) 628-1114

John D. Hemenway #379663

4816 Rodman Street, N.W.

Washington, D. C. 20016

(202) 224-4819

CERTIFICATE OF SERVICE

I hereby certify that I have served by

U.S. mail, first class, postage prepaid,

two truie and accurate copies of the fore-

going Brief this 12th day of April, 1991,

upon each of the following: J. Gordon For-

ester, JYr., Greenstein, DeLorme & Luchs,

Suite 300, 1220 19th Street, NW, Washing-

ton, D.C. 20036-2400; Robert Pleshaw, 729

15th Street, NW, Washington, DC 20005;

Francis X. Markey, Jones, Day, Reavis &

-34-

A-368

Street, NW, Washington,

John D. Hemenway

!

LJ

o;

!

THIS PAGE INTENTIONALLY LEFT BLANK.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Division

THANH VONG HOAI,

927 N. Highland st.

Arlington, Virginia

and

JOHN D. HEMENWAY,

4816 Rodman St., N.W.,

Washington, D.c.

and

DAVID HEMENWAY,

4816 Rodman St., N.W.,

Washington, D.c.

Civil

Action No.

THANH VAN vo a/K/a

Thoi Van Vo,

2242 Ssenseney Lane,

Falls Church, Virginia,

and

MILLARD F, OTTMAN, . )

8111 Gatehouse Road,

Falls Church, Virginia,

and

)

)

)

)

)

)

)

)

)

)

)

)

)

ies

Plaintiffs, )

)

)

)

)

)

)

)

)

)

)

)

)

)

/

DAVID Cc. ROSEMAN, )

6511 Brawner Street, )

McLean, Virginia,

and

JONES, DAY, REAVIS and POGUE

Cleveland, Ohio,

and

eee ee ee ae 8

J. GORDON FORESTER, Jr.,

1220 19th Street, N.W.,

Washington, D.C.

and

GEOFFREY WAGNER,

Tulsa, Oklahoma,

and

JOSEPH ZULLI,

Philadelphia, Pennsylvania,

and

SUN REFINING AND MARKETING

COMPANY, INC.,

Philadelphia, Pennsylvania,

set Mess ea ge ie St ec get Cae ea Cis Yaad eet gt Ma Ma Sea ee a a Na

Defendants.

COMPLAINT

I. JURISDICTION

1) This Court has Jurisdiction Under

the Civil Rights Laws 42 U.S.C. 1983 and

42 U.S.C. 1985 and to award attorneys'

fees under 42 U.S.C. 1988 for violations

of rights of due process guaranteed to the

plaintiffs by the Constitution of the

United States and violations of the rights

of the plaintiffs to petition for the

-2-

a-47/12

redress of grievances guaranteed by the

First Amendment.

2) All of the acts complained of

trict of Columbia.

II. VENUE

3) Plaintiff Hoai, in April of 1986,

Was granted a valuable gasoline station

franchise and lease by the defendant sun

Refining and Marketing Company, Inc.

("Sunoco") which Station was located in

the District of Columbia at 2305 Pennsyl-

vania Avenue, S.E.

4) The franchise contract between

Hoal and defendant Sunoco was negotiated

and entered into in Alexandria, Virginia,

but concerned the Station in the District

Of Columbia.

5) An alleged contract of transfer

claimed by defendant Vo as transferring

the station business from plaintiff Hoai

to defendant Vo was a document executed in

Virginia though the threats of death and

violence used to make defendant Hoai sign

it were made in Virginia and the District

of Columbia.

6) The conspiracy to deprive the

plaintiffs, as a legitimate franchisee and

his agents, of protection of the law equal

to that accorded an intruder who had ac-

complished possession by deceit and

threats of violence and death, occurred

principally in the District of Columbia,

though it did involve telephone calls to

Sunoco's legal department in Philadelphia.

7) The use of the color and authority

of the laws, customs and rules or regula-

tions of the courts of the District of

Columbia to deprive plaintiffs of rights,

privileges’and property without due pro-

-4-

a-374

cess and in violation of their rights to

petition for the redress of their

grievances occurred principally in the

District of Columbia.

III. PARTIES PLAINTIFFS

8) Plaintiff THANH VONG HOAI ("HOAI"')

is a citizen of the United States who

resides at 927 N. Highland St., Arlington,

Virginia and did so reside at all times

pertinent hereto. He did business at the

gas station in question in the District

until intimidated by threats of murder and

violence from Vo and another from coming

to that site.

9) Plaintiff JOHN D. HEMENWAY is a

resident of the District of Columbia and a

member of its bar. He participated in

meetings about the gas station as HOAI's

counsel and took part in the events at the

gas station on August 25 and 26, 1986, as

alleged herein as newly-retained counsel

for Hoai. He was then named as a

-5=<

defendant in a law suit in the Superior

Court of the District of Columbia as part

of the events complained of herein.

10) Plaintiff DAVID HEMENWAY is a

resident of the District of Columbia and

the son of JOHN D. HEMENWAY. He had met

and become acquainted with HOAI and helped

to persuade his father to help Hoai as an

attorney. Throughout the events alleged

herein he acted to help the Hoai as the

latter's friend and agent and also to help

his father if he could.

DEFENDANTS

11) Defendant THANH VAN vo ("vo") is

an adult resident of Virginia who resides

at 2242 Senseney Lane, Falls Church, Vir-

ginia, and did so reside at all times

pertinent hereto.

12) Defendant DAVID C. ROSEMAN

resides at 6511 Brawner Street, McLean,

Virginia.

13) Defendant MILLARD F. OTTMAN, Jr.

resides at 8111 Gatehouse Road, Falls

Church, Virginia.

14) Defendant JONES, DAY, REAVIS and

POGUE is the law firm Partnership of which

the third-party defendants ROSEMAN and

OTTMAN were members at the times in ques-

tion. It has an Offic

This text is long and has been trimmed here. Open the source document for the complete record.