# Appendix — Thanh Vong Hoai v. Thanh Van Vo > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0218%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1992 - **Citation:** 503 U.S. 967 ## Text ———————— 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 -2- 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 Le Il IiItl J IV §S 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 -12- 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- -18- 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 -60- 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 -70= 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 -79- 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 Donal [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0218%3A3. Public record. Not legal advice.