Appendix — Thanh Vong Hoai v. Thanh Van Vo
Supreme Court brief1992
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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 3 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 Ss. 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
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
franscript, Hearing before the
Honorable Annice Wagner,
Judge, Superior court of the
District of Columbia,
Civil Division
lemporary 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. Ottman, 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
A-417
A-46]1
A-465
A-471
»
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“J
Ui
A-566
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CIVIL DIVISION
THANH VON HOAI, ET AL,:
PLAINTIFFS, > C A NO. 89-2397
V. : JUDGE OBERDORFER
THANH VAN VO, ET AL. :
DEFENDANTS.
SUPPLEMENT TO THE MOTION FOR SANCTIONS ON
BEHALF OF SUN REFINING AND MARKETING COM-
PANY
THE DEFENDANT FILED A MOTION FOR SANC=-
TIONS ON DECEMBER 4, 1989, AND, BY ITS OR-
DER FILED OCTOBER 2, 1990, THIS COURT
ISSUED A RULE TO SHOW CAUSE WHY MR. ELGIN
AND MR. HEMENWAY SHOULD NOT BE SANCTIONED.
THIS MOTION IS SET FOR ORAL ARGUMENT ON
FEBRUARY 1, 1991.
COUNSEL FOR PLAINTIFFS HAVE NOW, BY THEIR
RECENT ACTIONS, EXCEEDED THE BOUNDS OF
DECENCY AND PROPRIETY. IN AN INTERVIEW
PUBLISHED IN THE JANUARY 14, 1991 ISSUE OF
U.S. OIL WEEK, A NATIONWIDE PUBLICATION ON
TRENDS IN PETROLEUM MARKETING! BOTH
COUNSEL MADE STATEMENTS WHICH ARE BLATANT
~ TExhibit
LIES, WHICH WERE CALCULATED TO ADVANCE
THEIR OWN INTERESTS AND SERIOUSLY DAMAGE
SUN REFINING AND MARKETING COMPANY. JOHN
HEMENWAY AND LAURENCE ELGIN MUST BE SANC-
TIONED BY THIS COURT PURSUANT TO RULE 11
OF THE FEDERAL RULES OF CIVIL PROCEDURE.
THE CIVIL RIGHTS CASE HAS BEEN DISMISSED.
YET, THE ATTEMPT IS MADE TO BOLSTER THE
PENDING 60(B) MOTION BY A FALSE CLAIM OF
RACISM. THIS ENORMOUS DISTORTION IS AS
FOLLOWS:
"A former local Sunoco dealer
is Meeting with groups repre-
senting the abundant Viet-
namese community here to con-
sider a boycott against Sun
over alleged racism, Oil Week
has learned."
* * *
Outside the courtroom, Jay
Gordon Forester allegedly told
Hoai's attorney John Hemenway
that "all Vietnamese are
liars."
Forester hotly denies the
story "Hemenway is not telling
the truth," he said.
THE QUOTE, ATTRIBUTED TO COUNSEL, IS A TO-
TAL FABRICATION. IT IS DESIGNED TO DAMAGE
SUN AND TO IMPAIR THE ATTORNEY=-CLIENT RE-
LATIONSHIP BETWEEN SUN AND ITS COUNSEL.
PUBLISHED DURING THE PENDENCY OF THE MO-
TION TO SET ASIDE THE JUDGMENT, COUNSEL NO
DOUBT HOPES TO LEND SOME CREDENCE TO HIS
SPECIOUS CLAIM OF DISCRIMINATION IN THE
CIVIL RIGHTS COMPLAINT.
THE SECOND EXCERPT IS PRECEDED BY THE
FOLLOWING CAPTION:
"DEALER: SUN AWARDS STATION TO
VIETNAMESE CRIME FIGURE."
THE LEAD CONTINUES WITH:
"In a case ignited by alleged links
to organized crime, charges of
racism and even death threats, a
Washington, D.C. dealer faces down
Sunoco this spring in a court
battle."
THESE ARE NO MORE THAN BIZARRE ALLEGA-
TIONS, EXISTING ONLY IN THE MALIGNANT
MINDS OF HEMENWAY AND ELGIN. THERE IS NOT
ONE SCINTILLA OF EVIDENCE OF "ORGANIZED
CRIME,"; THERE ARE CHARGES OF RACISM, BUT
THERE IS NO EVIDENCE OF RACISM AND THE
"DEATH THREATS," ARE UNSUPPORTED ALLEGA-
TIONS BY HOAI, INFLAMED AND EXAGGERATED BY
ELGIN AND HEMENWAY.
THE WILD CHARGES CONTINUE - AGAIN TOTALLY
UNSUPPORTED - THAT "THANH VAN VO TURNED
OUT TO BE INVOLVED IN A VITENAMESE
ORGANIZED CRIME RING IN NORTHERN VIR-
GINIA..."
THE PLEADINGS OF PLAINTIFF COMPARE MR. VO
TO AL CAPONE AND THEY CONTINUE WITH THE
CHARGE, AD NAUSEAM, THAT HE IS A "MERE
SCRAMBLER." THEY HAVE ACCUSED HIM OF
PEJURY WITHOUT SUBSTANTIATION. THESE ARE
ALL FANTASIES. THERE IS NO EVIDENTIARY
SUPPORT FOR ANY OF THESE ALLEGATIONS. THE
EVIDENCE IS CLEAR THAT THANH VAN VO FOUGHT
FOR HIS COUNTRY AS A MAJOR IN THE AIR
FORCE OF SOUTH VIETNAM; THAT HE WAS
TRAINED AS A HELICOPTER PILOT BY THE U.S.
ARMY; THAT HE IS A HARD WORKING NATURAL-
IZED CITIZEN WHO SUPPORTS HIS WIFE AND
CHILDREN. MR. HOAI, TO THE CONTRARY,
NEVER DEFENDED HIS COUNTRY AND, AS HE AD-
MITS, LEFT HIS CHILDREN BEHIND IN VIETNAM.
HE NOW HAS FOUR MORE BY THE WIFE HE
MARRIED IN THE UNITED STATES. HE IS UN-
WORTHY TO MAKE SUCH SLANDEROUS ALLEGATIONS
AGAINST MR. VO.
THE CALUMNY CONTINUES WITH JOHN HEMENWAY
ACCUSING SUN OF SUBORNATION OF PERJURY, IN
THAT HE TOLD OIL WEEK “THAT HE BELIEVES
SUN PUT PRESSURE ON DISTRICT REP ERNIE
PEELE TO ALTER HIS STORY SUBTLY, AND THUS
UNDERMINE HOAI'S CASE." THIS IS BOLSTERED
BY A PARTIALLY CORRECT QUOTE FROM MR.
PEELE'S DEPOSITION THAT "SUN'S LEGAL DE-
PARTMENT GAVE HIM SOME ‘GUIDANCE AS TO HOW
TO HANDLE THIS SITUATION (IN COURT).'"
THE ACTUAL TRANSCRIPT STATES AS FOLLOWS:
Q. (BY MR. ELGIN) .. NOW GOING
FORWARD TO THE TIME AFTER THE
HEARING AGAIN, DID THERE COME A
TIME WHEN YOU'RE (SIC) LEGAL DE-
PARTMENT FORBADE YOU TO COMMUNI-
CATE FURTHER WITH MR. HOAI, OR
MYSELF OR MR. HEMENWAY, OR
ANYBODY ON OUR SIDE OF THE
MATTER?
A. I DON'T RECALL THAT. I'M
SURE THAT I WAS GIVEN SOME
GUIDANCE AS TO HOW TO HANDLE
THIS SITUATION. (DEPOSITION
OF ERNIE PEELE, JANUARY 5,
1988, PP. 54-55).
THIS IS A MCCARTHYISTIC TACTIC OF TAKING
A HALF TRUTH, COUPLED WITH A LIE TO MAKE
IT APPEAR TRUTHFUL.
LARRY ELGIN AND JOHN HEMENWAY HAVE SUNK
TO NEW LOWS BY THEIR LIES AND DISTORTIONS.
THIS IS NO LONGER AN ADVERSARIAL CONTEST,
BASED ON FACTS AND LAW, WAGED IN COURT BY
FROFESSIONALS LEARNED IN THEIR CRAFT WHO
SEEK TO PERSUADE THE FINDER OF FACT THAT
THEIR CAUSE IS JUST. THEY HAVE INSTEAD
MOVED THEIR BATTLE TO THE STREETS AND THE
BACK ALLEYS, RENEGADES ACTING OUTSIDE THE
LAW,UTILIZING LIES, DISTORTIONS, IN-
FLAMMATORY RACIAL EXHORTATIONS AND THE
MEDIA TO SEEK A VICTORY AT ANY COST.
THIS COUNSEL IS NOT SO NAIVE AS TO BE-
LIEVE THAT SANCTIONS WILL RESTRAIN THESE
= 6 =
A=-410
LAWYERS AND THEIR OUTRAGEOUS TACTICS.
YET, THE DIGNITY OF THIS COURT IS AT
STAKE, AS THEY CONTINUE TO RUN AMUCK
THROUGH ALL STANDARDS OF ETHICS AND
PROFESSIONALISM.
THIS COURT IS IMPLORED TO REFLECT UPON
THESE MONSTROUS ALLEGATIONS MADE BY HEMEN-
WAY AND ELGIN IN THE TRADE PRESS. COUNSEL
FOR DEFENDANT IS ALLEGED TO HAVE MADE A
RACIST REMARK WHICH IS CATEGORICALLY
DENIED. THEY ARE USING THIS LIE TO MOUNT
A BOYCOTT AGAINST SUN, SEEKING ECONOMIC
LEVERAGE AND SUPPORT FOR THE SPECIOUS
CLAIM OF DISCRIMINATION. THEY SLANDER SUN
BY CLAIMING THAT IT AWARDED A STATION TO A
"VIETNAMESE CRIME FIGURE." THEY CHARGE
THE DEFENDANT WITH SUBORNATION OF PEJURY
ALLEGING THAT WE PRESSURED MR. PEELE TO
"ALTER HIS STORY."
THIS CONDUCT CANNOT BE TOLERATED. IT
MUST BE CENSURED. THESE MEN ARE NO LONGER
WORTHY OF THE PROFESSION, AND, UNLESS THEY
ARE RESTRAINED AND SANCTIONED, THEY WILL
CONTINUE THIS ABOMINABLE BEHAVIOR TO THE
DETRIMENT OF THE ORDERLY ADMINISTRATION OF
JUSTICE.
RESPECTFULLY SUBMITTED,
/S/ J. GORDON FORESTER, JR. #4424
GREENSTEIN, DELORME & LUCHS, P.C.
1620 L STREET, N.W., SUITE 900
WASHINGTON, D.C. 20036-2400
TELEPHONE: (202) 452-1400
- a —EEE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
In the matter of
Thanh Vong Hoai : Civil Action No.
Plaintiff 87-2456-LFO
Vv.
Sun Refining and
Marketing Company,
Inc.
Defendant
Tuesday
January 5, 1988
DEPOSITION OF:
ERNEST PEELE
x *
Q. {By Mr. Elgin}: Now, do you recall --
I realize it's been some time now, but do
you recall testifying about these matters
in the Superior Court last year?
A. Yes I do.
Q. Have you had any opportunity to review
that testimony since you gave it?
A. Yes.
Q. Do you still substantially agree with
it today?
A. Yes, I do.
G. In that case, it will probably
eliminate a lot of the questions I would
otherwise ask.
MR. FORESTER: Well, for the record, he
was under oath then, he's under oath now.
MR. HEMENWAY: Why don't I introduce it
into the record then, his deposition?
Q. Well, let me ask a few questions. In
reviewing it, have you found anything at
all in that testimony that you would feel
might have been mistaken, or for whatever
reason, you would wish to correct or
Clarify today? Or is it essentially stand
by it all?"
A. As best I can remember, everything I
said there would be basically what I would
say today.
Q. Okay. Now, I wonder Mr. Forester, in
order to cut down this time enormously,
how many copies of this?
- 2-
n-414
MR. FORESTER: I've got four. I've got
enough.
Q. Four copies? Now, I would like to
then submit that for the record, Mr. Re-
corder.
REPORTER: Exhibit 12.
Q. Exhibit 12. The testimony of Mr.
Peele in the Superior Court proceeding.
x * &
22 &€eec eas SS -
This is to certify that the foregoing pro-
ceedings in the matter of: THE DEPOSITION
OF ERNEST POOLE [SIC] held on: JANUARY 5,
1988 at the location of: 1323 RHODE IS-
LAND AVENUE, N.W., WASHINGTON, D.C. were
duly recorded and accurately transcribed
under my direction; further, that said
proceedings are a true and accurate record
of the testimony given by said witness;
and that I am neither counsel for, related
to, nor employed by any of the parties to
this action in which this deposition was
ve
taken; and further that I am not a rela-
tive nor an employee of any of the parties
nor counsel employed by the parties, and I
am not financially or otherwise interested
in the outcome of the action.
/S/ NEAL R. GROSS
Notary Public/Reporter in and for
THE DISTRICT OF COLUMBIA
My commission expires
MARCH 31, 1989
NEAL R. GROSS
Court Reporters and Transcribers
1323 Rhode Island Avenue, N.W.
Washington, D.C. 20005
(202) 234-4433
a
4-416
SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
CIVIL DIVISION
THANH VAN VO, )
Plaintiff ) DOCKET NO. CA-7075-86
Vv ) August 29, 1986
THANH VONG HOAI,) (STAMP: Received Sep 19
et al, )'86, 2:44 PM/SCDC]
Defendants. )
The above-entitled matter came on for
a hearing before the HONORABLE ANNICE WAG-
NER, Judge, in Courtroom Number 2100.
APPEARANCES
MILLARD OTTMAN, ESQUIRE, ATTORNEY
On Behalf of Plaintiff.
DAVID C. ROSEMAN, ESQUIRE, ATTORNEY
On Behalf of Plaintiff.
PHILIP DAVIDSON, ESQUIRE, ATTORNEY
On Behalf of Plaintiff.
JOHN HEMMENWAY [sic], ESQUIRE, ATTORNEY
On Behalf of the Defendant.
LAURENCE A. ELGIN, ATTORNEY
On Behalf of the Defendant.
!
~
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J&J COURT TRANSCRIBERS
20-10 Florister Drive
Trenton, New Jersey 08690
586-2311 (609) 586-4345
zxkekek
PEELE =- DIRECT
ERNEST L. PEELE,
having been called as a witness for and on
behalf of the Defendant, and having been
first duly sworn by the Deputy Clerk, was
examined and testified as follows:
DIRECT EXAMINATION BY MR. ELGIN
Q. Could you state your name for the
record?
A. My name is Ernest L. Peel. [sic]
Q. Would you spell your iast name for the
Reporter?
A. P, as in Pennsylvania, e-e-l-e.
Q. And Mr. Peele, what is your employ-
ment?
n-418
A. I ama representative for Sun Oil Com-
pany, Sunoco.
Q. And in the capacity of a representa-
tive for Sun Oil Company how long have you
been employed with that company?
A. 16 plus years, be 17 in October.
Q. 17 years in October. Now, what is the
nature of your job? What do you do as a
representative for Sun?
A. Well, I am the liaison between the
dealer and the company and my functions
range from interviewing dealers, on being
a financial counselor and acting as the, I
guess the go-between between the dealer
and the company. So most of the business
that is conducted with franchisee is done
through me and the company.
0. And in your work with the dealers,
when do you first commence your rela-
tionship as a liaison between the dealer
elma i
A. Well, it depends if its a new deal or
an existing dealer. If it's an existing
dealer, I take over from whomever was
there before me and we continue to do
business from that point on. If it's a
new dealer I am the guy that generally
selects and interview that dealer and then
put him in business.
Q. Now, you are the one that selects and
interviews the dealers for the Washington,
D.C. area?
A. Washington, D.C. and Northern Vir-
ginia.
Q. Northern Virginia. Now, in that ca-
pacity, did you select a dealer for a sta-
tion on Pennsylvania Avenue, South East?
A. Yes, I did. ~
Q. And how do you designate that station?
What do you call that station?
A. Sun Station at 2305 Pennsylvania Ave-
nue.
Q. South East.
A. South East.
Q. Now, are you familiar with the gentle-
men, the two gentlemen in this room, Mr.
Hoai, who has been identified on the
record and Mr. Vo?
A. Yes, I am familiar with both.
Q. Now, is either of these gentlemen a
dealer with whom you have dealt on behalf
of Sun Oil?
A. Yes. Mr. Hoai is our dealer who has a
contract with us, with Sun Oil Company.
Q. So Mr. Hoai is a dealer?
A. That's correct.
And Mr. Vo is not.
oO
A. No.
MR. OTTMAN: Excuse me, your Honor,
could we avoid counsel repeating every
statement of testimony.
THE COURT: I'll sustain the objec-
tion.
MR. ELGIN: All right, your Honor, I
just wanted to avoid any charges of lead-
ing the witness.
Q. Now, could you describe briefly your
taking on Mr. Hoai as a dealer?
A. Well, in the process that this station
was closed and I advertised and I inter-
viewed a lot of people. And Mr. Hoai, I
interviewed him. Mr. Hoai, I knew hin
previously because he was an employee for
Sun Oil Company before, he was a former
dealer with Sun Oil Company. And I had
not been his representative, but there was
a couple of other people who had. And he
was highly recommended by my peers and who
had been a very good dealer with us. So lI
selected him as the dealer. And as a
result of that selection process, is that
it's an interview, several interviews, how
are we going to run a business, do you
have capital to go into the business and
this the type interview that I carry on.
Q. Now, when you interviewed him, did
you-- what do you check when you interview
him? What did you check out when you in-
terviewed him? What factors were impor-
tant in making your decision?
A. Well, number one, he had a history
with us, number one as being an operator
and one who knows the business. The sec-
ond and probably important, it is very in-
portant that the person has ample capital
to operate a service station. And when I
say that, I mean that I will give him an
application and he fills out an applica-
tion, and then I have my credit department
run a check on that application, and with
the financial information that is given we
then make our decision as to accept or not
accept.
Q. What kind of capital did Mr. Hoai
have?
A. Initially when I talked to Mr. Hoai, I
told him what was needed to enter into the
business, which was somewhere between 65
and $70,000. Mr. Hoai told me that he
had about thirty thousand of his cwn
money, 30, $35,000 of his own money and he
had a friend who was loaning him the addi-
tional capital to go into the business.
Q. Did he mention the name of that friend
to you?
A. Yes, that was Mr. Van Vo, whom I met.
Q. You met with Mr. Van Vo. And what did
Mr. Hoai and Mr. Van Vo tell you about Mr.
Van Vo's role in this dealership?
A. Well, I questioned both of them ex-
tensively about that and one of my ques-
tions to Mr. Hoai, this loan, first I
wanted to know the pay back arrangements
of the loan because that can impact the
business in that the loan was made in a
way that Mr. Hoai would have ample time to
pay it back, it wasn't a loan that I'll
give you today and I need my money back
six months from today because businesses
just don't function that well. But the
whole crux of that conversation was that
Mr. Vo was loaning Van (sic) the money as
a friend who was helping him get into the
business and that that loan was to be paid
back, start principle, was to be paid back
after the first year of business. During
the first year only the principle would be
paid -- excuse me, not principle, interest
would be paid during that period. Sounded
like a very good deal from the standpoint
that they were friends and he wanted to
help Mr. Hoai get back in business, and
that was it. I also questioned both of
them in saying now, this loan is straight
up, there is no behind the scene partner-
ship, okay, ownership of this money being
invested or being loaned, and the answer
was unequivocally, no. Find. I don't
have any problems with that.
Q. So based on that you went ahead and
granted the distributorship?
at
Awac LL
A I granted the franchise.
Q. Franchise.
A To Mr. Hoai.
Q. And once the franchise was set up, did
you then regularly see both gentlemen in
the business?
A. At first Mr. Hoai was there and then
about I guess there was a two, three week
period after the business opened and we
were scheduled to open April 1, but we got
some delays in there, I don't know whether
it was in the contract form or something
came up, officially we opened on April
10th, and Mr. Hoai was there. And about
three weeks or a month, maybe a month,
five weeks, I'm not sure, Mr. Hoai was
there. And then Mr. Hoai wasn't there and
I got concerned about his absence and I
said where is Mr. Hoai, and this is to Mr.
Van. Van Vo. And he was saying that Mr.
Hoai had gone to see his sick brother in
West Virginia or something. Well, that's
understandable. The thing was that it got
a little longer and I said I am not being
told or this game isn't being played
right, Hoai is supposed to be here. And
we have a clause in our contract where
personal supervision of the person that
I've given the contract to should be
there. And that's why I finally got back
in touch with Hoai and I called his home
and they told me he was out of town, well,
that was fine. And when he did get back,
I told him, I said hey, you know, you are
supposed to be at the station. I've seen
Van there, and I've talked to Van. we
5
+7
be
didn't matter to me because they were such
good friends and with his loaning him the
money. Fine. Okay, you're still helping
your fellow countryman, I suppose.
At that point, you know, when I final-
ly got and sort of talked to Mr. Hoai, he
was saying that Van was putting him out of
the station. I said he can't put you out
_- +e 4 ~
a.)
AeGae
ee ee
of the station. How is he going to do
that? You know. I said you are the
dealer and I talked to Van and I've always
said look -- he said well, why won't he
sell me the business, I said well he can't
sell you the business unless he comes
through us. And I want to tell you and
tell Hoai, that Hoai you've got to be
here. Mr. Vo, you know, I don't care what
the problem is between you and Mr. Hoai,
you two have to settle that. But with Sun
Oil Company, Hoai is my dealer. And I
told him that several times. And in fact
I even had my manager down and we talked
with Van and this has been going on for
some time and that Van, we do not recog-
nize you., Hoai is the dealer, now you
two please work this thing out.
Q. Did they ever work it out?
A. Evidently they didn't, we're sitting
here.
2-428
Q. Was there ever a time that you and
your company or your manager or anybody
connected with Sun Oil Company recognize
Mr. Van Vo in any way as being a fran-
chisee or dealer of the Sun Oil Company?
A. We have not.
Q. Now, in this station that we're speak-
ing of, the station property itself is
owned by the Sun Oil Company, is it not?
A. That's correct.
Q. Did you ever in any way recognize Mr.
Van Vo as being the lessee of the proper-
ty?
A. No.
Q. Do you allow someone to sublease a
property lease from you without notice to
the Sun Oil Company?
A. No, that is a violation of the con-
tract. If a dealer wants to sell his
business, it is in the contract he has
that right but with the proviso that we,
as a company have got the right to reject
_—_—_——
or accept the new buyer, okay, and the
present lessee must give us something in
writing saying that he is negotiating to
sell his business to give us an op-
portunity to interview and go through the
normal channels of accepting a dealer.
Q. Now, so there is the franchise to dis-
tribute the petroleum products and there
is the lease, those are two separate
things, is that right?
A. Well, the lease itself is incumbent
upon the fact that it's a total business
there, and the product because it is a
branded product, they must sell our pro-
duct, gasoline.
Q. Now, is there anything other than the
franchise to sell your product and the
lease that comprises the business of a
Sunoco station? Is there anything other
than those two things?
A. Would you repeat that guestion? I am
not sure I understand that you're --
a-430
Q. Well, is there anything to the busi-
ness other than the lease and the fran-
chise to distribute the Sun Oil Products,
that's the whole business, right, those
two things?
A. That's the business.
MR. ELGIN: I have no further ques-
tions of this witness at this time, your
Honor, in deference to your Honor's ad-
monition.
PEELE -CROSS
THE COURT: You may inquire.
Do you have any questions?
MR. ROSEMAN
Q. Mr. Peele, after the station opened on
April 10, did thére come a time when you
told Mr. Vo that you discovered a shortage
in the inventory, that you had done at the
time the station closed in January?
A. Right. What happened there was the
inventory from the previous --
OG. Excuse me.
ee
THE COURT: You've answered the ques-
° _ tion.
Q. Please just answer my questions.
A. Okay.
Q. Thank you. And did you tell Mr. Vo
that there may have been a mistake when
you did the inventory and that you were
concerned you might have to personally
make it up with Sunoco?
A No, this was to Mr. Hoai.
Q Okay, did you tell that to Mr. Hoai?
A. Yes.
Q Was that on April 10?
A When did I write that out, it could
have been April 10. April 9th, I think I
might have a copy of when I actually wrote
up the invoice on the ground inventories
that were there and inventories on hand.
Q. Did you ask Mr. Hoai or Mr. Vo if they
would make up the difference for you with
a check?
A. No.
- 16 -
a-43c
Q. Did there come a time on April 10 when
you received a check from Mr. Vo in the
amount of the inventory shortage.
$1458.00?
A. The inventory that was there was from
the previous owner. And what I had done
is given the previous owner credit and I
said, Mr. Hoai, I Know this -- the in-
ventory was here, I think there was a
break in and some of the products might be
gone. And I said, I'll tell you what, to
keep the accounting at bay, I will just
invoice you for the product that I gave
him credit for and I said now we'll make
up this to you, I don't care whether it's
short or there or not. I had originally
gotten an amendment to the lease for
$2500, I said I'll give it to you for
$2000 and I said that will cover anything.
I said you've got to make out on the deal.
THE COURT: Does that answer your
question whether he's given a check?
MR. ROSEMAN: I'm sorry, your Honor,
it doesn't.
THE WITNESS: Well, the check was
given to me for the product that I billed
him for, which was the inventory on hand.
MR. ROSEMAN: Your Honor, I don't know
what the protocol here is in chambers, but
I would like to show the check to Mr.
Peele and ask if he can identify it.
THE COURT: All right.
A. Again the check was fourteen sixty-
eight and some change.
Q. Well, perhaps we can avoid marking it
then if you remember the check clearly.
A. That's right.
Q. Do you remember who signed the check?
A. I'm not sure whether it was Hoai or
Vo. I'm =-- I know I got the check.
Q. Do you remember who physically handed
it to you? Wasn't it Mr. Vo who handed
you the check?
A. Could have. I don't know.
Q. Now, during the operation of the sta-
tion through the spring and the summer,
you personally collected the rent from the
premises, didn't you?
A. The first check was given to me in the
form of a cashier's check for $2,000.
From that point on we have what we call an
electronic rent draft check that is set up
by the bank and our bank, and the dealer
Signs the form which means that money for
rent is automatically electronically
transferred from their account to our ac-
count.
Q. Is that the procedure that was used at
the 23rd and Pennsylvania Avenue station?
A. Yes. _I got the first check, as I said
for 2000, okay, it was a certified check.
And then the rent draft, as we call it,
from that point on the rent was being
taken out automatically from the account
that Mr. Hoai signed the papers for,
. . : ~ 4 - _ +>
giving us authorization to do it.
Q. Now, you say the rent was being taken
out of an account automatically pursuant
to a rent draft from the dealer.
A. From the dealer.
Q. And that money was being drawn on the
account of the person you recognized as
the dealer?
A. That's correct. Mr. Hoai had to sign
the rent draft form that we get a copy of
and send to the bank.
Q. Are you aware of where the account was
located, from where those payments were
made?
A. They were coming out of a bank out of
Virginia, I believe.
Q. Would that have been the McLean Bank
(phonetic).
A. Is that it? I'm not sure. All I know
is when they give me a (indiscernible)
check that will put this rent draft in the
process and Hoai is the person who signed
that rent draft form, then it is, by my
- 90 «-
n= 436
credit department, from that point on it
is done electronically.
o. Well, are you aware that the owner of
that checking account, McLean Bank, is Mr.
Vo? Did there come a time when you became
aware of that?
A. Not really, because the original
monies that were put into the business,
the $7000, $2000 rent, the $5000 was given
to me from Mr. Vo, but at that time, it
still was, to me, okay, and the under-
standing was that this was monies that Jo
was loaning to Hoai. So, you know, it
didn't -- I mean this was an established
fact that he was loaning him the money so
I didn't have any reason to question the
fact that the money was coming from Vo
Simply because they both had told me that
he was loaning him money.
Q. Did there come a time when Mr. Vo told
you that he had purchased the business
from Mr. Hoai
A. He told me that he had given Hoai some
money for the business, and I said well,
you know, Hoai just can't sell you the
business, it's got to come through me be-
fore we can make any transfer of business.
Q. Well, he showed you a document that
was called a contract of sale of business,
didn't he?
A. He did. That was one for $1.00. I
think, a contract, somewhere I saw some-
thing about Hoai turning the business over
to Vo for $1.00, and I said but Hoai still
can't do that. My contract says, hey, you
have to come through me. He just can't
sell his business to anybody. I said --
Q. Well, did you explain to Mr. Vo that
what you were speaking of was approval of
Sunoco, the approval of the transfer?
MR. OTTMAN {sic}: Your Honor, counsel
is testifying, let him ask the question.
- 22 -
a-438
THE COURT: Your objection is over-
ruled, he can lead witness if he wishes to
on cross. Go ahead, please.
THE WITNESS: Repeat the question,
please.
Q. When you were speaking with Mr. Vo
about this, isn't what you were telling
him that Sunoco had to approve the trans-
fer, not that Sunoco had to make the
transfer, isn't that what you meant?
A. Well, yes, we do have to make the --
we have to approve the transfer, right,
and until we do that we don't recognize
at.
Q. I see. But the dealer, franchise
agreement itself, would permit the trans-
fer of the dealership or the reassignment
of the dealership, it's just that Sunoco
must approve it.
A. Provided that we are told that we get
in writing from the dealer that he is in
the process of selling his business or
- 23 -
z9
a4
A
tee
transferring it, and with the proviso that
the new person is acceptable to Sun Oil
Company.
Q. What you really needed with them were
two things, you needed Mr.Hoai to initiate
this approval process as the person who
Signed the dealer agreement with you, and
then you needed to satisfy yourselves of
the credit worthiness of the new dealer.
Is that right? _
A. Hm-hm
THE COURT: I am sorry, what was the
answer?
THE WITNESS: Yes. Yes.
Q. Now, did you have any reason to be-
lieve that Hoai -- that Mr. Vo would not
be credit worthy to Sunoco?
A. No.
Q. In fact, you knew that Mr. Vo at the
very least, had provided all of the funds
for the operation of the station at that
time, didn't you?
A. Not totally. I knew --
Q. I'm sorry.
A. Pardon?
I new from what they were telling me
that Vo was loaning Hoai something in the
nature of 35 to $40,000. Now, this is
what Van Vo and Mr. Hoai told me initially
when I was interviewing Mr. Hoai.
Q. You are the person upon whom Sunoco
relies to make a decision as to the credit
worthiness, the desirability of the dealer
to operate the station?
A. The credit worthiness is done through
my credit department. That's why I need
an application on an individual, and they
handle that function. It is my responsi-
bility to interview the individual, to try
to come to some decision on certain that
the person has -- or business background
to operate a business.
Q. All right, well, would it be fair to
Say that you were satisfied that Mr. Vo
was at least, as to the second requirement
that you identified, was credit worthy and
satisfied that requirement to be a dealer.
A. Well, I don't know that, because I
didn't have a credit check on hin.
Q. Okay. So as far as your input in
determining whether a dealer receives a
franchise agreement, were you satisfied
that Mr. pond, inde) apart from the credit
check, that Mr. Vo was qualified to opera-
te that station as a dealer?
A. Well, I think he was qualified with
one proviso in there that I knew that he
was involved in a lot of other things and
we look for people who are going to be
specifically operators of that particular
location. Now, it's not to say that I
would totally discount anyone, but anyone
who does not have time to be there and op-
erate the station, that is why I would not
select then.
- 26 -
, ary
AwWGoc
Q. Well, you testified earlier though,
that Mr. Vo was the one at the premises
whenever you went by and that you in fact
became concerned that Mr. Hoai was never
there.
A. That's correct.
Q. So you knew that Mr. Vo was the one
who was at the station, certainly of the
two of then.
A. Yes, I knew that. But I also know that
Mr. Vo is involved in a lot of other
businesses and he has another service sta-
tion somewhere. Texaco.
Q. Is that right? Do you know that for a
fact?
A. Well, that's what he told me. I'm
talking about Vo told me this.
Q. Now, did there come a time when you
told Mr. Vo that as far as you were con-
cerned, he could be the dealer to the sta-
tion as long as Sunoco approved it and
- 27 -
AA
pe eo
a “ EE
they went through the formalities of hav-
ing the transfer. =
A. I probably could have said that.
Q. And in fact you said that after you
saw the purchase agreement, this contract
that you mentioned a little bit earlier,
is that right?
A. I could have. I don't remember in
detail. I don't recall specifically
saying that from the standpoint of say
looking at the contract and giving him an
answer to that, no, I == you know.
Q. Okay, did you tell Mr. Vo that what
was really necessary at this stage, in
fact the only thing that was necessary was
for Mr. Hoai to make the initiated request
and start the process?
A. I said in order for him, and I don't
recall exactly, that in order for Mr. Vo
to be considered for a dealership, would
be for Mr. Hoai to initiate and give us
the paper work necessary.
- 28 -
n-444
Q. Mr. Vo asked you for help in getting
Mr. Hoai to do that, didn't he?
A. Well, he probably could have and I
kept seeing -- Mr. Hoai was telling me
that Van was like forcing him out of the
station and my question to Hoai was, do
you want the station? Yes. I said well,
you're the dealer. Now, that problem ex-
ists between you and Van, and I can't make
that decision as to who, you know, it's
going to be. I can't go there and tell
Van to leave, or I can't tell you to tell
Van to go down the road.
MR. HEMENWAY [SIC]: Thank you, Mr.
Peele, I have nothing further.
MR. ELGIN:
Q. Mr. Peele, you mentioned that Mr. Van
Vo told you about other businesses he
owned. What were they? What were these
other businesses he told you about?
A. Well, I think he owns a service sta-
tion, a Texaco Service Station, and I know
- 29 =
A
PL 6a YD
he owns a vending, a number of trucks with
vending.
Q. That would be coin vending machine op-
erations?
A. Oh, stands that you see on the street,
you know, hot dogs, selling novelties,
that type.
Q. And this other service station he
owns, did he tell you what company BRat
was with?
A. Texaco, I believe.
Q. You normally give Sun distributorships
for franchises to people who own rival
businesses with other oil companies?
A. I have done it, we try to keep it toa
limit, but you know, it's done.
Q. It's something you do very carefully
though.
MR. OTTMAN: Objection, leading.
THE COURT: Sustained.
MR. ELGIN: Well, your Honor, they
asked leading questions up and down. When
- 30 -
n-446
I objected to it, my objection was over-
ruled.
THE COURT: Counsel, this is your wit-
ness called on direct, you may not lead
him, the opposing side on cross examina-
tion surely you know, after this many
years of practice, that they can. Those
are the rules.
Proceed.
MR. ELGIN: All right.
Q. What process do you go through when
someone asks to have a Sun distributorship
and they also own a distributorship or
franchise for another company?
A. Well, I give them the same considera-
tion I would do anyone who does not have
another business, I probably would try to
go look at the other operation to see how
they operate that, that would give me some
idea as to how they are going to operate
my business.
Q. In this case though, you never reached
that stage?
A. I didn't have any reason to.
Q. Now,I just want to understood [sic]
the answer you gave to opposing counsel on
one question and that is the answer you
gave when he asked you about account at
the McLean Bank. It was the McLean Bank
did you answer it was McLean Bank or --
A. From looking at the check, I think it
was McLean Bank.
Q. And the -- opposing counsel asked you
if you knew that account was the account
of Mr. Van Vo vétnen than Mr. Hoai, and I
didn't quite get the answer to that.
A. I said I wasn't sure. All I know is
that account when we have our rent draft
on it, it was signed by Mr. Hoai, so who
has control of that account somehwere --
Q. You didn't know.
A. I don't know.
- i | -
a-f48
Q. You didn't know. As far as you knew
it was being paid by Mr. Hoai?
MR. OTTMAN: Objection, leading.
THE COURT: Counsel, don't lead the
witness. Rephrase your question.
MR. ELGIN: I'm sorry, your Honor.
Q. 1l right, let me rephrase the ques-
tion. Did you have any knowledge of any-
one other than Mr. Hoai controlling that
account?
A. No, I do not. I did not.
MR. ELGIN: No further questions on
redirect, your Honor.
THE COURT: Sir, could you tell me the
date on which you were made aware of the
agreement between Mr. Hoai and Mr. Vo, the
written agreement? The approximate date,
month?
THE WITNESS: That -= gosh, this is
really -- when was the date -- Mr. Hoai
had another attorney and we met at the
station, and I don't know, I think it was
in June sometime, that was when someone
came up and said Hoai had ---
THE COURT: Well, you don't have to
tell me that, all I wanted to know was the
date on which you think you learned about
the agreement.
THE WITNESS: Sometime in June, your
Honor.
THE COURT: Of this year.
Did you see a copy of that document?
THE WITNESS: It was in Vietnamese and
THE COURT: You say a copy of the doc-
ument in Vietnamese?
THE WITNESS: Right. And I can't say
what it was.
THE COURT: Was both - who was present
when you saw that document?
THE WITNESS: Mr. Van Vo, Mr. Hoai,
Ms. Solene (phonetic) --
- 34 -
a-450
THE COURT: Did Mr. Hoai or Mr. Vo
tell you what the document purported to
be?
- THE WITNESS: Verbally that --
THE COURT: Who told you what between
these two?
THE WITNESS: It would be Mr. Vo.
THE COURT: What did he say?
THE WITNESS: That Hoai had signed
this document giving him the business.
THE COURT: And what did Mr.Hoai say?
THE WITNESS: Well, the amount was
like for a dollar and Mr. Hoai said he was
forced to sign this paper.
THE COURT: That's what Hoai told you?
THE WITNESS: Standing there, the four
of us.
THE COURT: Were you on the premises
much? How often were you on the premises?
THE WITNESS: Initially, quite often.
Maybe twice a week and after maybe once a
week and after that maybe two weeks.
THE COURT: And each time you went
there, who did you see in charge?
THE WITNESS: As I say the first four
to five weeks, Hoai was around. Then all
of a sudden, Hoai was missing and after I
finally got back in touch with Mr. Hoai,
up to that point, Mr. Hoai was saying that
if he goes back there he was afraid of his
life or something, and he just wasn't
there, Van was there.
THE COURT: Was Van there each time
you went?
THE WITNESS: He was either there or
you could call him on the telephone and
get him there. Normally I would try to
make an appointment or get somebody on the
telephone if I wanted to communicate with
them.
THE COURT: Do you know whether this
business had a license from the Govern-
ment?
THE WITNESS: It was on the wall.
= 36 =
a-452
THE COURT: Did you know whose name
the license was in? =
THE WITNESS: There was one that was
Sonntag (sic), initially there was some
with Mr. Hoai's name on it, and then that
changed.
THE COURT: It's your contention that
Mr. Hoai had a license to operate this
business?
THE WITNESS: Yes.
THE COURT: And then you say it
changed.
THE WITNESS: Then I saw Sonntag --
THE COURT: When did that occur?
THE WITNESS: This had to be after
that month or five weeks after the dis-
appearance of Mr. Hoai here.
THE COURT: Can you tell me approxi-
mately what month that was in?
THE WITNESS: That had to be in May.
THE COURT: Does the company become
involved with whether or not the fran-
= 37 «
n=453
chisee have licenses? Are you concerned
about that?
THE WITNESS: Yes.
THE COURT: Did you do any investiga-
tion when you ascertained that the license
was not in the name of Hoai?
THE WITNESS: Well, with the initial
license --
THE COURT: The question is whether in
May of 1986, when you found out that
Sonntag became the person holding the D.C.
License, whether or not the person to whom
you gave the franchise had an appropriate
license.
THE WITNESS: No, I did not investi-
gate that.
THE COURT: All right.
Are there any questions as a result of
the Court's questions?
MR. ELGIN: Yes, your Honor. Do you
want to go first?
MR.HEMENWAY: Yes.
THE COURT: All right. Well, why
don't you go first because then I'll give
you the last word since it's your witness.
FURTHER DIRECT EXAMINATION BY MR. ELGIN
MR. ELGIN: He said something so quickly
there that he -- he said afraid for his
life. Could we clarify what he was talk-
ing about, what he said?
Q. He said he was afraid for his life?
A. The conversation with Mr. Hoai and he
had another attorney by the name of Solene
(phonetic), and I went to lunch with then,
and when I say Hoai, it's your business,
you should be there, and he says, well, if
I go back there, you know, something might
happen to me, somebody might break my arm
Or my leg or whatever, that kind of con-
versation came to me and I -- I didn't
know what to say at the time that point.
He was saying something about cowboys and
I said cowboys, what cowboys? And evi-
dently it must mean that someone within
- 39 -
the Vietnamese community kind of controls.
That was my interpretation of it. rt
doesn't have to be but at least that's
what I thought.
MR. OTTMAN: If the Court please,
could we strike all this testimony --
THE COURT: I'll strike his inter-
pretation.
MR. ELGIN: Well, wait a minute, he
said that they were talking about
violence, breaking legs --
THE COURT: Sir, I heard what he said,
I'm striking what he said his interpreta-
tion was. I'm letting his answer to your
question stand.
MR. ELGIN: I understand. I just want
to be clear.on that, your Honor.
Q. They were actually talking about
physical violence in front of you?
A. Yes. That if he came back on the
premises there was going to be physical
harm.
- 40 -
a=-456
MR. ELGIN: I have no further ques-
tions, your Honor.
THE COURT: Anything further you wish
to ask?
MR. OTTMAN: Yes, this statement about
physical harn.
FURTHER RECROSS EXAMINATION BY
MR. ROSEMAN:
Q. What was the day or the month that
that statement was heard, could you tell
us again?
A. Sir, I couldn't tell you, I had so
many meetings and chronologically, to give
you an exact time or date, I don't know.
THE COURT: If you don't know, sir,
you may simply say you don't know. You
don't have to go into long details.
Q. Would you know if it was in May or in
June or July?
A., As I said, it had to be either the
latter part of May or June.
a3
— 41 —
Q. Did Mr. Hoai say if he had gone to the
police to do anything about these alleged
threats on his life?
A. No, he did not. In fact, I suggested
that he do that.
Q. Asking about the business license now.
You said that you saw a business license
at the station in the name of Mr. Hoai?
Did you --
THE COURT: You have to respond to
that orally so we can pick up your words.
THE WITNESS: Yes. Yes. I'm sorry.
Q. Where was this license when you saw
it?
A. It was on the wall in the sales of-
fice.
oF Did you look at it closely to as-
certain the exact name on the license?
A. No.
Q. Well, are you certain that it was Mr.
Hoai's name on the license and not Mr.
Vo's name.
A-458
A.
Q.
that you
station
Saw
in Mr.
a business license at
I can't be exactly sure on that.
SO you are not able to say for certain
the
Hoai's name?
A. To be definite, no
Q. It could have been Mr o's name
A. It could have been, but I certainly
Knew that we have a retail sales tax num-
ber that we reau e from our franchisee
and that numbe wa Jen ¢t me and that
A - = ¢ » ~~ + in ,
should be ecause we ave
that
MF - >M2 furthe )
Honor
THE COURT Anything further
MR. ELGIN Nothing, your Honor
THE COURT: fnank you, sir ou may be
excused
7 * 7”
= 43 a=
THIS PAGE INTENTIONALLY LEFT BLANK.
SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
CIVIL DIVISION
THANH VAN VO,
D/B/A SUNTECH SUNOCO, INC.,
PLAINTIFF, CA NO. 7075-86
V.
THANH VONG HOAI
JOHN D. HEMENWAY,
DAVID HEMENWAY
AND SUN REFIING AND
MARKETING CO.,
DEFENDANTS.
TEMPORARY RESTRAINING ORDER
THIS MATTER IS BEFORE THE COURT ON THE
MOTION OF PLAINTIFF,THANH VAN VO, DOING
BUSINESS AS SUNTECH SUNOCO, INC.
(HEREINAFTER “PLAINTIFF"), REQUESTING IS-
SUANE OF A TEMPORARY RESTRAINING ORDER.
UPON CONSIDERATION OF PLAINTIFF'S
VERIFIED COMPLAINT, THE EXHIBITS THERETO,
THE AFFIDAVITS, AND THE MOTION FOR A
TEMPORARY :RESTRAINING ORDER, TOGETHER WITH
THE MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT THEREOF, AND AFTER HEARING
TESTIMONY AND ARGUMENTS AND REPRESENTA-
TIONS OF COUNSEL, IT APPEARING THAT
PLAINTIFF HAS MET HIS BURDEN OF SHOWING
-lj-
2 a ao
(1) THAT PLAINTIFF HAS MADE A STRONG SHOW-
ING THAT HE IS LIKELY TO PREVAIL ON THE
MERITS; (2) THAT PLAINTIFF WILL SUFFER IR-
REPARABLE HARM WITHOUT INJUNCTIVE RELIEF;
(3) THAT DEFENDANTS WILL NOT BE SUBSTAN-
TIALLY HARMED BY THE GRANT OF A
PRELIMINARY INJUNCTION; AND (4) THAT THE
PUBLIC INTEREST IS SERVED BY THE GRANT OF
A PRELIMINARY INJUNCTION FOR THE REASONS
STATED ON THE RECORD, WHICH ARE IN-
CORPORATED HEREIN BY REFERENCE A TEMPORARY
RESTRAINING ORDER SHOULD BE ISSUED TO
PRESERVE THE RIGHTS OF THE PARTIES AND RE-
STORE THE STATUS QUO ANTE.
IT IS HEREBY ORDERED:
(1) THE DEFENDANTS JOHN HEMENWAY, DAVID
HEMENWAY, THANH VON HOAI AND ALL PERSONS
IN ACTIVE CONCERT OR PARTICIPATING WITH
THEM SHALL IMMEDIATELY:
(A) CEASE AND DESIST FROM SELLING ANY
PETROLEUM PRODUCTS, AUTO PARTS OR OTHER
GOODS, PERFORMING ANY MECHANICAL OR OTHER
=2=
n=-462
SERVICES, OR TRANSACTING ANY OTHER BUSI-
NESS ON THE PREMISES OF THE SUNOCO STATION
LOCATED AT 2305 PENNSYLVANIA AVENUE, S.E.,
WASHINGTON, D.C. 20020 (THE "STATION")
(B) RETURN POSSESSION AND OCCUPANCY OF
THE STATION AND THE PROPERTY THEREON TO
THE PLAINTIFF, AND
(C) CEASE THEIR INTERFERENCE WITH THE
CONDUCT OF PLAINTIFFS BUSINESS AT THE SAID
STATION.
(2) THAT THE DEFENDANT, SUN REFINING AND
MARKETING COMPANY, SHALL CONTINUE TO SUPP-
LY THE PLAINTIFF WITH THE BRANDED
PETROLEUM PRODUCTS AND TO PERMIT PLAINTIFF
TO OPERATE THE STATION AND TO PERMIT HIM
TO OCUPY. THE STATION UNDER THE SAME TERMS
AND CONDITIONS AS EXISTED BETWEEN
PLAINTIFF AND SUN REFINING AND MARKETING
COMPANY PRIOR TO AUGUST 25, 1986 AND PRO-
DUCTS ARE TO BE DELIVERED SO LONG AS
PLAINTIFF PAYS THE SUMS DUE FOR SAME.
THAT, AS A CONDITION OF GRANTING THIS
TEMPORARY RESTRAINING ORDER, PLAINTIFF
SHALL POST BOND IN THE AMOUNT OF $3,000 BY
AUGUST 29, 1986, EASTERN STANDARD TIME
WHICH AMOUNT SHALL REMAIN IN THE REGISTRY
OF THE COURT UNTIL FURTHER ORDER OF THIS
COURT.
THIS TEMPORARY RESTRAINING ORDER SHALL
CONTINUE IN EFFECT ON SEPTEMER 8, 1986,
UNLESS MODIFIED OR EXTENDED BY PRIOR ORDER
OF THIS COURT
ORDERED THIS 29TH DAY OF AUGUST, 1986 AT
5:25 PM O'CLOCK, P.M.
/S/
ANNICE WAGNER
JUDGE, SUPERIOR COURT OF THE DISTRICT OF
COLUMBIA
ak A
A=-4OG
SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
CIVIL DIVISION
THANH VAN VO, d/b/a
SUNTECH SUNOCO, INC.,
et al.,
V. CA 7075-86
THANH VONG HOAI, et al.
)
|
Plaintiffs, )
)
)
)
Defendants.
CONSENT ORDER FOR EXTENSION OF
TEMPORARY RESTRAINING ORDER AS TO
DEFENDANT SUN REFINING AND MARKETING Co.
This matter having come before the court
upon the pleadings and other papers here-
tofore filed herein and upon the represen-
tations of counsel and it appearing to the
court that on August 29, 1986, a Temporary
Restraining Order was issued in this cause
On motion of plaintiff, Thanh Van Vo,
after the hearing of testimony and argu-
ments of counsel; and it further appearing
that the plaintiff and Sun Refining and
Marketing Company have, as evidenced by
the endorsements hereon by counsel, agreed
that the terms and conditions of the
Temporary Restraining Order should be con-
tinued with respect to plaintiff and
defendant Sun Refining and Marketing Com-
pany, until March 31, 1987 or the prior
resolution of the dispute between
plaintiff and defendant Thanh Vong Hoai
over rights to operate the gasoline sta-
tion at 2305 Pennsylvania Avenue, S.E.,
Washington, D.C. as a franchisee and les-
see of Sun Refining and Marketing Company,
so long as plaintiff complies with the
terms and conditions of that certain one-
year dealer trial franchise agreement ap-
pearing as Exhibit 1 to the Verified Com-
plaint as if he were an original signatory
thereto. A non-renewal of said agreement
or a termination for failure to comply
with the terms and conditions thereof will
not be deemed a violation of this consent
order. It is by the Court this 8th day of
September, 1986,
ORDERED, that the following paragraph (2)
of the Temporary Restraining Order of Au-
n-400
gust 29, 1986 is hereby extended as to the
plaintiff and the defendant, Sun Refining
and Marketing Company, so as to continue
to maintain the status quo as between
plaintiff and defendant Sun Refining and
Marketing Company:
(2) that the defendant, Sun Refin-
ing and Marketing Company,
shall continue to supply the
plaintiff with the branded
petroleum products and to permit
plaintiff to operate the sta-
tion and to permit him to
occupy the station under the
same terms and conditions as
existed between plaintiff and
Sun Refining and Marketing
Company prior to August 25,
1986. Such products are to
be delivered so long as plaint-
iff pays the sums due for same.
and it is further ordered, that this ex-
tension shall continue until further order
of this court or until March 31, 1987 or
the prior resolution of the dispute pend-
ing in this cause between the plaintiff
and defendant, Thanh Vong Hoai, over
rights to operate the gasoline station at
2305 Pennsylvania Avenue, S.E., Washing-
ton, D.C., as a franchisee and iessee of
Sun Refining and Marketing Company and so
long as plaintiff continues to comply with
the terms and conditions of that certain
one-year dealer trial franchise agreement
appearing as Exhibit 1 to the Verified
Complaint as if it were an original sig-
natory thereto, it being the sense of this
consent order that a non-renewal of said
agreement or a termination for failure to
comply with the terms and conditions
hereof will not be deemed a violation of
this Consent Order;
AND IT IS FURTHER ORDERED, that a copy of
said restraining order, together with a
transcript of the court's reasons therefor
stated on the record and incorporated into
the temporary restraining order by refer-
nce is attached to and made a part of this
Consent Order;
AND IT IS FURTHER ORDERED, that the cash
bond posted by plaintiff in the amount of
- 4-
n=-4606
$3,000 shall remain in effect for the
duration of the restraining order or until
further order of the court.
This consent order shall not be construed
to extend the said restraining order as to
any other defendant.
/s/ Stephen F. Eilperin
Judge [stamp) ‘Signed in Chambers'
Seen and agreed:
/s/ David C. Roseman per mfo
D.C. Bar No 226969
Jones, Day, Reavis & Pogue
1250 Eye Street, N.W., Suite 1100
Washington, D.C. 20005
(202) 628-4095
Attorney for Plaintiff
/s/ J. Gordon Forester, Jr.
D.C. Bar No. 4424
Pohoryles & Greenstein, P.C.
1920 N Street, N.W., Suite 800
Washington, D.C. 20036
(202) 785-2940
Attorney for Defendant
Sun Refining and Marketing Company
Mail copies to:
David C. Roseman, Esq.
Jones, Day, Reavis & Pogue
1250 Eye Street, N.W., S
Washington, D. C. 20005
Gordon J. Forester, Jr.
Pohoryles & Greenstein, P.C.
1920 N street, N.W., Suite 800
Washington, D.C. 20036
Laurence A. Elgin, Esq.
2762 Woodley Place
Washington, D.C. 20008
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
THANH VONG HOAI
PLAINTIFF, : C A NO. 87-2456
V. :
SUN REFINING AND : JUDGE OBERDORFER
MARKETING COMPANY,
DEFENDANT.
AFFIDAVIT OF JEFFREY W. WAGNER
STATE OF OKLAHOMA )
COUNTY OF TULSA )
I, JEFFREY W. WAGNER, BEING FIRST DULY
SWORN ON OATH, DO DEPOSE AND STATE AS FOL-
LOWS:
1. I AM CURRENTLY A SENIOR ATTORNEY FOR
SUN PIPE LINE COMPANY IN TULSA, OKLAHOMA.
IN SEPTEMBER, 1986 I WAS COUNSEL TO THE
FUELS DIVISION OF SUN REFINING AND MARKET-
ING COMPANY LOCATED IN PHILADELPHIA,
PENNSYLVANIA.
2. ON OR ABOUT SEPTEMBER 5, 1986, I WAS
CONTACTED BY DAVID C. ROSEMAN, AN ATTORNEY
WITH JONES, DAY, REAVIS & POGUE, WHO
REPRESENTED THAN VAN VO IN A SUIT FILED
AGAINST THANH VONG HOAI AND SUN REFINING
AND MARKETING COMPANY IN THE SUPERIOR COURT
eS
OF THE DISTRICT OF COLUMBIA. I CANNOT
RECALL WHETHER THIS TELEPHONE CONVERSATION
WAS MY FIRST NOTIFICATION OF THE SUIT. I
DO KNOW, HOWEVER, THAT LOCAL COUNSEL HAD
NOT BEEN RETAINED TO REPRESENT SUN REFINING
AND MARKETING COMPANY IN THIS MATTER PRIOR
TO THIS DATE.
3. DAVID ROSEMAN INFORMED ME THAT A
TEMPORARY RESTRAINING ORDER HAD BEEN
GRANTED BY JUDGE ANNICE WAGNER REINSTATING
THANH VAN VO AS THE FRANCHISEE OF THE
SUNOCO STATION LOCATED AT 2305 PENNSYLVANIA
AVENUE, S.E. AND THAT THIS ORDER FURTHER
REUIRED SUN TO CONTINUE SUPPLYING PETROLEUM
PRODUCTS TO THE STATION. MR. ROSEMAN IN-
QUIRED WHETHER SUN WOULD BE WILLING TO CON-
TINUE SUPPLYING PETROLEUM PRODUCTS TO THE
STATION. MR. ROSEMAN INQUIRED WHETHER SUN
WOULD BE WILLING TO CONSENT TO AN EXTENSION
OF THAT PROVISION OF THE TEMPORARY
RESTRAINING ORDER WHICH REQUIRED SUN TO
CONTINUE TO SUPPLY PETROLEUM PRODUCTS UNTIL
a=
a-472
:
FURTHER ORDER OF THE COURT IN LIEU OF PRO-
CEEDING WITH A PRELIMINARY INJUNCTION HEAR-
ING.
4. I ADVISED MR. ROSEMAN THAT SUN COULD
AGREE TO CONTINUE THAT PROVISION SO LONG AS
WE WERE PAID FOR THE PRODUCTS DELIVERED AND
SO LONG AS THE CONTINUATION WAS CONSISTENT
WITH THE TERMS OF THE FRANCHISE AGREEMENT
WHICH WAS THEN IN EFFECT.
5. MR. ROSEMAN TELECOPIED A DRAFT CONSENT
ORDER FOR MY REVIEW WHICH CONTAINED A PRO-
VISION FOR THE CONTINUATION OF SUPPLY OF
PETROLEUM PRODUCTS TO THIS SUNOCO LOCATION.
I DISCUSSED THE DRAFT ORDER WITH JOSEPH D.
ZULLI, ESQ., MY SUPERIOR AT THAT TIME. I
RECALL THAT WE MADE SOME CHANGES TO ENSURE
THAT THE ORDER WAS CONSISTENT WITH THE
FRANCHISE AGREEMENT AND THE PETROLEUM
MARKETING PRACTICES ACT.
6. J. GORDON FORESTER, JR., OF THE FIRM
OF POHORYLES & GREENSTEIN, P.C. HAD NOT
BEEN RETAINED DURING THIS PERIOD OF NEGOTI-
-3-<
4
n=-4/ 3
. an
ee
ATIONS WITH MR. ROSEMAN AND CONSULTATION
WITH MR. ZULLI. WHEN THESE NEGOTIATIONS
WERE CONCLUDED, WE REALIZED THE NEED FOR
LOCAL COUNSEL TO SIGN THE ORDER. I SUB-
SEQUENTLY CONTACTED MR. FORESTER AS HIS
FIRM HAD PERFORMED SERVICES FOR SUN IN
OTHER MATTERS, AND ADVISED HIM THAT WE HAD
AGREED TO A CONSENT ORDER AND ASKED HIM TO
SIGN THE ORDER AND ENTER HIS APPEARANCE ON
BEHALF OF SUN. I SPECIFICALLY RECALL THAT
I REQUESTED THAT HE REVIEW THIS CONSENT OR-
DER FOR FORM AND TO MAKE SURE THAT IT WAS
CONSISTENT WITH LOCAL RULES. MR. FORESTER
DID NOT PARTICIPATE IN ANY DISCUSSION
REGARDING THE TERMS OF THE ORDER.
7. THE DECISION TO ENTER INTO THE CONSENT
ORDER WAS SOLELY OURS AND THE TERMS WERE
NEGOTIATED DIRECTLY WITH DAVID ROSEMAN.
MR. FORESTER DID NOT COUNSEL SUN IN THIS
DECISION NOR PARTICIPATE IN THE NEGOTIA~-
TIONS.
/S/: JEFFREY W. WAGNER
eas
A-474
NT
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA
Civil Division
THANH VONG HOAI, et al.,
)
Plaintiffs )
Vv. )CA No. 89-2397
THANH VAN VO ) (Oberdorfer, J.)
a/k/a Thoi Van Vo, )
et al., )
Defendants. )
MOTION TO DISMISS
OF DEFENDANTS MILLARD F. OTTMAN, JR.
DAVID C. ROSEMAN,
AND JONES, DAY, REAVIS & POGUE
Defendants MILLARD F. OTTMAN, JR.,
DAVID C. ROSEMAN AND JONES, DAY, REAVIS &
POGUE herby move this Court, pursuant to
Rules 12(b) (5) and 12(b)(6) of the Federal
Rules of Civil Procedure, for an Order
dismissing the Complaint, as it pertains
to then.
This motion is made upon the grounds
that (a) plaintiffs have failed to effect
proper service upon these moving
defendants as required under Fed R. Civ.
Pro. 4, and (2) the Complaint fails to
state with respect to these defendants a
-j]«
a-475
valid cause of action under 41 U.S.C. §
1983 or § 1985(3). This motion is based
upon the Memorandum in support thereof,
the affidavits of Millard F. Ottman, Jr.,
David C. Roseman, and Diane Ferguson, the
Fxhibits to the Roseman affidavit, and the
pleadings already on file in this action.
Dated: November 29, 1989
Respectfully submitted,
JONES, DAY, REAVIS & POGUE
BY:
Francis X. Markey (No. 387678)
Brian P. Maschler
Metropolitan Square
1450 G Street, N.W. -
Wahsington, D.C. 20005
(202) 879-5487
Attorneys for Defendants
Millard F. Ottman, Jr.
David C. Roseman amd
Jones, Day, Reavis & Pogue
CE CATE OF SERVIC
This is to certify that on this 29th day
of November, I caused to be served, by
first-class mail, copies of the foregoing
Motion to Dismiss of Defendants Millard F.
Ottman, 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; Proposed
Order Granting Motion to Dismiss; Af-
fidavit of Millard F. Ottman, Jr.; Af-
fidavit of David C. Roseman; Affidavit of
Diane Ferguson; and Exhibits to the
Roseman Affidavit, upon the following:
Laurence A. Elgin, Esq.
8929 Sleaford Place
Annandale, Virginia 22003,
Attorney for Plaintiffs,
John D. Hemenway, Esq.
4816 Rodman Street, N.W>
Washington, D.C. 20016
J. Gordon Forester, Esq.
Greenstein, Delorme & Luchs, P.C.,
1220 19th Street, N.W. Suite 300
Washington, D.C. 20036-2400
Sun Refining and Marketing Co.,
c/o CT Corporation System
1025 Vermont Avenue, N.W.
Washington, D.C. 20005
Robert Pleshaw, Esq.
729 15th Street, N.W. Suite 800
Washington, D.C. 20005
Attorney for Defendant Thanh Van Vo.
/S/ Brian P. Maschler
THIS PAGE INTENTIONALLY LEFT BLANK.
4-478
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Division
THANH VONG HOAI, et al.)
Plaintiffs )
v. ) CA No. 89-2397
THANH VAN VO ) (Oberforfer,J.)
a/k/a Thoi Van Vo, )
et al. )
Defendants. )
MEMORANDUM OF DEFENDANTS MILLARD F.
OTTMAN, JR., DAVID C. ROSEMAN, AND
JONES, DAY, REAVIS & POGUE
IN SUPPORT OF MOTION TO DISMISS
TABLE OF CONTENTS
PAGE
PRELANMLNARY STATEMENT wccccccccrccvvces 2
jv: Serre rs fare ee eee ee ee ee ae ee ee a 5
Re BOGE OUIG 60600 0660 086666 6s 008d 02 5
1. The S.C. Superior Court
Action and The Temporary
ROSCEEINING GEGSE ..cc cece sees 5
B. CERO ACTIONS ce cccccssevseceseves 8
1. The RICO ACEION cecccesvscvcvens 8
2. The Petroleum Marketing
Practices Act ("PMPA")
Se es er ae ee a 10
s)
Plaintiffs' Allegations Against
Jones, Day, Ottman and Roseman
In The Present Action ......eeeee 10
D. The Faulty Attempt At Service
Upon Jones, Day, Ottman And
ROSEMAN ..ccccccccccccscsecesesces 12
ARGUMENT .ccccccccccccccssesecssccesece 14
I. DISMISSAL OF THE COMPLAINT AS
AGAINST THE ATTORNEY DEFENDANTS
IS COMPELLED DUE TO INSUFFICIENT
SERVICE OF PROCESS .ccccccccccccsves 14
II THE COMPLAINT MUST BE DISMISSED
AS AGAINST THE JONES, DAY DEFEND-
ANTS BECAUSE IT DOES NOT STATE A
VALID CAUSE OF ACTION AGAINST
A. Count I Does Not State A
Valid Claim Under 41 U.S.C.
1. The Complaint Does Not
Plead Facts Sufficient To
Support Plaintiffs' Con-
-2<
A
~
Arar’.
clusory Claim That Defend-
ants Acted “Under Color Of
STATS TM ccccccccesecccesse 20
2. The Complaint Does Not
Properly Allege The
Deprivation Of A Federal
B. Count II Fails to State A
Valid Claim Under 42 U.S.C.
S BOOOLS) Seseneeseonecesceececses 32
COMNCEMIBION ceccccscscscceseccnecceseses 34
MEMORANDUM OF DEFENDANTS MILLARD F.
OTTMAN, JR., DAVID C. ROSEMAN,
AND JONES, DAY, REAVIS & POGUE
IN _ SUPPORT OF MOTION TO DISMISS
Defendants Millard F. Ottman, Jr.,
("Ottman"), David C. Roseman ("Roseman")
and Jones, Day, Reavis & Pogue ("Jones,
Day") submit this memorandum in support of
their motion, pursuant to Fed. R. Civ.
—————————
Pro. 12(b)(5) and 12(b) (6), to dismis this
action. Dismissal is mandated because (1)
plaintiffs have failed to effect proper
service on any of these defendants under
Fed. R. Civ. Pro. 4, and (2) the Complaint
fails to state a valid cause of action
against these defendants under either 42
U.S.C. § 1983 or § 1985(3).
PRELIMINARY STATEMENT
This case represents an exceptionally
reckless misuse of the Civil Rights Act,
and an abuse of judicial process. The
Complaint's ad hominem rhetoric and con-
clusory recitation of statutory language
aside, it appears that the sole basis al-
ss leged for plaintiffs' 42 U.S.C. §§ 1983
and 1985(3) claims is the completely law-
ful attainment of a temporary restraining
order relating to the possession of a ser-
vice station. As to these moving parties,
the attorneys and law firm which secured
this interim relief on behalf of their
-4-
a-482
client, defendant Thanh Van Vo ("Vo"),
this purported basis for plaintiffs' Civil
Rights Act claims, as a matter of law, is
no basis at all.
The subject temporary restraining or-
der was issued by the Superior Court of
the District of Columbia in favor of Vo,
pursuant to notice and over plaintiffs'
vigorous opposition, approximately three
years ago. The order, as it pertained to
plaintiffs, expired by its own terms ten
days after its issuance. (Temporary
Restraining Order entered August 29, 1986,
Exhibit A to Affidavit of David C. Roseman
("Roseman Aff."). The order was extended
with respect to another party, Sun Refin-
ing and Marketing Co. ("Sun Refining")
shortly before the expiration of the 10-
day period. (Consent Order for Extension
of Temporary Restraining Order As To
Defendant Sun Refining and Marketing Com-
pany, Exhibit B to Roseman Aff.) That
a
n=-GZO
sinclar cent a LL LAN
EEE EEeGOOo7
consent order, which explicitly excluded
plaintiffs and thus imposed no additional
restraint upon them beyond that already
prescribed by law, expired over two and a
half years ago.
Despite not being parties to the con-
sent order, plaintiffs filed an inter-
locutory appeal of the order, raising many
of the same challenges that they raise in
the instant case. (See Notice of Inter-
locutory Appeal and Appellant's Opening
Brief, Exhibit C. to Roseman Aff.) The
Court of Appeals for the District of
Columbia dismissed the appeals of
plaintiffs John D. Hemenway and David
Hemenway as "frivolous", and later dis-
missed the appeal of plaintiff Hoai as
moot.
Having been rebuffed in their efforts
to overturn an expired consent order which
did not even apply to them, and rather
than pursue this original action to its
o@=
ARA
AWG OS
eee
conclusion!, plaintiffs have resorted to a
strategy of proliferation of new actions
against the parties to the first Superior
Court action, asserting many of the same
grievances unsuccessfully raised in that
original action and interlocutory appeal
(See pp. 5-11, below). Thus, the present
action, which was filed three years to the
day after the hearing on the motion for a
temporary restraining order’, must be
1 That action, Vo v. Sun Refining and
Marketing Company, Superior Court of the
District of Columbia, Civil Division, Civ.
Act. No. 7075-86, is still pending, but
has been placed on the suspense calendar
at the urging of the plaintiffs in the
present case. There has been no final
ruling on the merits of Vo's claims in
that action, nor on the counterclaim of
Hoai and the Hemenways.
2 The applicable limitations period
for §1983 and 1985(3) claims is three
years. See Wilson v. Garcia, 471 U.S.
261, 275-76 (1985) (holding that the
statute of limitations for § 1983 claims
is the statute applicable to personal in-
jury actions in the state in which the §
1983 claim is brought); Hobson v. Brennan,
625 F. Supp. 459, 466 (D.D.c. 1985) (J.
Oberdorfer, presiding) (a three-year
limitation period applies to § 1983 claims
brought in the District of Columbia.
ar
viewed as merely another in a long series
of attempts to resurrect plaintiffs' col-
lateral challenge to a dead interlocutory
order which was issued in a case that is
still pending. In the present case,
plaintiffs have added to the roster of
parties the private law firm and two of
its attarneys who successfully obtained
the temporary restraining order on behalf
of their client. But as plaintiffs must
concede, these defendants were not parties
to the earlier action, had no personal
stake in the outcome of the dispute, and
functioned solely as advocates for the in-
terests of their client.
As a matter of law, such advocacy does
not provide a legitimate basis for a claim
under 42 U.S.C. § 1983 or § 1985(3). We
demonstrate below that plaintiffs have
failed to meet their most basic pleading
requirements applicable to claims under
these sections. Their § 1983 claim must
-8-
n-486
Se
fail because, among other deficiencies,
plaintiffs do not and cannot state facts
sufficient to sustain a valid claim that
the defendant law firm and attorneys acted
"under color of law" in representing the
interests of Vo, and plaintiffs do not and
cannot properly allege that they were
deprived of any federal right as a result
of defendants' actions. Their § 1985
claim must fail because the Complaint
fails to allege any invidious, class-based
discrimination, which allegation is a pre-
requisite to bringing such a clain.
This action also must be dismissed
pursuant to Fed. R. Civ. Pro. 12(b) (5),
inasmuch as plaintiffs have failed to ex-
ecute proper service upon these moving
defendants.
Eo eooorereoeoroooroererererererererererererereeee
FACTS?
A. ac und
1. The D.C. Superior Court Action
and The Temporary Restraining
Order
On August 28, 1986 Vo, represented by
Jones, Day, and in particular Ottman and
Roseman, filed a civil action in theé@
(sic] Superior Court of the District of
Columbia against Thanh Vong Hai [sic]
("Hoai"), John D. Hemenway, David Hemen-
way, and Sun Refining. Vo alleged in that
action, inter alia, that Hoai and the
Hemenways had wrongfully and forceably
evicted Vo from his Sunoco Service Station
on August 25, 1986. (See Superior Court
Complaint and Motion for Temporary
Restraining Order, Exhibit D to Roseman
3 Jones, Day, Ottman and Roseman (col-
lectively, "the Jones, Day defendants")
respectfully request that, pursuant to
Rule 201 of the Federal Rules of Evidence,
the Court take judicial notice of earlier
pleadings and court rulings concerning the
subject matter of the instant dispute.
-10-
n-Z86
vO
Aff.) Vo concurrently filed and served
upon all defendants a motion for temporary
restraining order. Id. On August 29,
1986, after a two-day evidentiary hearing
before the Honorable Annice Wagner at
which Vo, the Hemenways and several other
witnesses testified, the Superior Court
granted Vo's motion for a temporary
restraining order. The order required,
inter alia, that Hoai and the Hemenways
return possession and occupancy of the
station and all property thereon to Vo,
and that Sun Oil continue to supply Vo
with petroleum products and permit him to
operate the service station under the
terms of the existing franchise agreement
between Vo and Sun Oil. (Exhibit B to
Roseman Aff.)
NO appeal from the TRO was taken by
any defendant in that action. In light of
his reinstatement to occupancy of the ser-
vice station, Vo did not seek further in-
-ll-
-
a-48y
junctive relief against Hoai or the Hemen-
ways, and the TRO expired with respect to
them on September 8, 1986. In order to
maintain the status quo with respect to
the continued operation of the service
station, Vo entered into a consent order
with Sun Refining extending the temporary
restraining order only as to Sun Refining.
(Exhibit B to Roseman Aff.). The Consent
Order was entered by the Superior Court on
September 8, 1989. It expired, as did the
temporary restraining order with respect
to Sun Refining, on March 31, 1987.4
Hoai and the Hemenways, who were not
parties to the consent order, nonetheless
sought an interlocutory appeal of the or-
der, challenging its validity. (Exhibit C
to Roseman Aff.) The Court of Appeals for
4 the consent order was made expressly
subject to the Superior Court's ultimate
ruling on the merits of the dispute be-
tween Vo and Hoai. It was to expire on
the earlier of the resolution of that dis-
pute or March 31, 1987, the date the fran-
chise agreement expired (Exhibit B).
-12-
4-490
ee
the District of Columbia dimissed the ap-
peal by Hoai and the Hemenways as frivo-
lous (Exhibit E to Roseman Aff.)
In August, 1988, plaintiffs filed a
third party complaint against the Jones,
Day defendants among others, alleging,
just as they do in the present action,
that these defendants made misrepresenta-
tions to the Superior Court, and had ex-
tended the TRO without notice to Hoail.
(See Answer, Counter-Claim and Third-Party
Claims, at paras. 186-87, Exhibit G to
Roseman Aff.) The third-party complaint
further alleged that in committing these
acts these defendants acted ultra vires
the rules of the Superior Court. Id., para
188. Plaintiffs packaged these allega-
tions as tortious interference with con-
tract and business relationship, con-
Spiracy, and violation of civil rights
Claims. Id., Counts 8-11, 13. This third
party complaint was voluntarily dismissed
-13-
——— ae
as to the Jones, Day defendants by
plaintiffs after Superior Court Judge
Weisburg informed them that under District
of Columbia common law, in order to sue
Jones, Day, plaintiffs would have to serve
each individual partner of the firm.
As noted above, the Vo action is still
pending.°® It has been placed on the
suspense calendar at the request of Hoai
and the Hemenways while they pursue, in
5 plaintiffs Hoai and the Hemenways
moved to dismiss the Vo action, and for
sanctions. The Superior Court denied
those motions, noting as follows:
"In the court's view, if any party
should be sanctioned under Rule 11, it is
(Hoai and the Hemenways] have made a rela-
tively simple case unnecessarily compli-
cated, and by their filing of voluminous
motions, many of which are particularly
frivolous, and most of which are replete
with inappropriate and irresponsible at-~
tacks against [Vo] and others, (Hoai and
the Hemenways] have diverted this case off
the Civil II calendar, where it belongs,
requiring special assignment to a single
judge for all purposes."
Order of July 26, 1985 [sic] at 5-6,
attached as Exhibit H to Roseman Aff.
-14-
ae-Z9e
———————————
separate actions, parallel attacks on the
same interlocutory ruling.
B. Othe ions
1. The RICO Action
On or about March 23, 1987 plaintiff
Hoai filed a 133-page complaint against Vo
and others in the United States District
Court for the Eastern District of Vir-
ginia. That complaint alleged twenty-four
counts, including, inter alia, ten counts
brought under RICO, and one brought under
41 U.S.C. §§ 1983, 1985, 1986 and 1988.
(RICO Complaint, attached as Exhibit I to
Roseman Aff.) Most of the allegations of
this complaint focused on the same
ultimate issue -- concerning the right to
the possession of the Sunoco service sta-
tion -- that was at issue in the earlier
Vo action that had been brought in the
District of Columbia Superior Court. The
Civil Rights Act claim set forth in Count
XI of that complaint charged Vo and others
-15-
AQz
aw47)
——=_™—“‘<O<;*éti‘i‘i‘S
with “conspiring to file and filing false
pleadings full of false allegations and by
using fraud to deprive plaintiff of the
assistance of his counsel." Id., para.
294. The complaint alleges that such con-
duct deprived Vo [sic] of the equal pro-
tection of the laws, in violation of 42
U.S.C. § 1985(3) =~ just like the Com-
plaint in the present action.
On July 2, 1987, ehe District Court
for the Eastern District of Virginia en-
tered an order dismissing the Complaint.
(Order Dismissing RICO Complaint, Exhibit
J to Roseman Aff.)
2. The Petroleum Marketing Prac~
tices Act ("PMPA") Action.
On or about September 5, 1987, Hoai
filed in this Court an action under the
PMPA against Sun Refining. (See verified
——
-16-
eee
AaAwree +
Complaint, Exhibit K to Roseman Aff.) °®
This action also challenges the validity
of the temporary restraining order entered
in favor of Vo and the consent order.
d.
==. ’
at paras. 33-34. Defendant Sun
Refining has filed a motion for summary
judgment seeking a dismissal of all claims
against it in this action, which motion is
currently pending before the Court.
C. Plaintiffs' Allegations Against
Jones, Day, Ottman and Roseman
In the Present Action
The Complaint alleges that:
(a) the Jones, Day defendants "filed and
obtained (sic) a motion for a TRO in the
Superior Court of the District of Colun-
bia" by use of affidavits "which they
should have known were false" (Complaint,
6 pue to the pendency of this related
action, whose relationship with the pres-
ent case was noted to the Court by
defendant Gordon S. Forester [sic] pur-
Suant to Local Rule 405, the present case
was reassigned to the Honorable Louis F.
Oberdorfer.
sceriiniianitaiiamamainiiliiacsieia emai
para. 32), and by presenting at oral argu-
ment theories which were not included in
any filing then before the Superior Court
(Complaint, para. 33);
(b) Ottman obtained the TRO by "false
statements to the Superior Court judge
which statements were accepted as fact er~
roneously and incompetently by that judge"
(Complaing, para 33);
(c) by "false charges," the Jones Day
defendants deprived Hoai of "his right to
a counsel of his choosing." (Complaint,
para 34);
(ad) by the use of false swearing and
testimony, the Jones, Day defendants
"deprived all of the plaintiffs of their
freedom to travel in and in the vicinity
of the gas station franchise in question
and to operate the same," (Complaint, para
35);
(e) the Jones, Day defendants made false
representations to SUNOCO in connection
-18-
.
Awy 46
seaman ANAS iii insu
with entering into the agreement which
formed the basis for the consent order,
(Complaint, para. 38);
(f) “defendants” (it is not clear whether
these include the Jones, Day defendants)
held out to the managers of the service
station "that the Superior Court had re-
quired this result depriving Hoai of his
station and franchise," (Complaint, para.
39); and
(g) the Jones, Day defendants "held out
falsely" (as to whom the Complaint does
not specify) that a TRO could be extended
without notifying the major party in in-
terest and without his consent," and "used
the device of getting an unwitting judge
to sign and ratify" the "voluntary agree-
ment" between VO and Sun Refining. (Com-
plaint, para, 43).
D. The Faulty Attempt At Service Upon
Jones, Day, Ottman and Roseman
———~ ° @
Plaintiffs' feeble attempt at service
upon the Jones, Day defendants consisted
solely of a process server's leaving
copies of the Complaint and Summons at a
reception desk of Jones, Day on November
9, 1989. See Returns of Service, attached
as Exhibit L to Roseman Aff. As Ms. Diane
Ferguson, the receptionist present at the
desk on November 9, 1989, states in her
affidavit, she was not authorized to ac~
cept service on behalf of any of these
three defendants, and she expressly in-
formed the process server of that fact.
Affidavit of Diane L. Ferguson ("Ferguson
Aff."), paras. 3,7. Ms. Ferguson further
instructed the process server that, in any
case, all deliveries to the firm had to be
made to the firm's mailroon, located on
another floor of the office. Id., para.
3. The process server simply ignored Ms.
Ferguson's statements, left the documents
on the desk, and departed. Id., para. 6.
-20-
A
ae4Jo
————————————
On or about November 13, “1989, John
Hemenway filed a document styled
"Praecipe" with the Court in which he
represented that service had been con-
pleted upon all defendants. This is
patently false. No copies of these plead-
ings have ever been served directly upon
Roseman or Ottman or anyone authorized to
accept service for them, nor have any such
documents reached their residences. Af-
fidavit of Millard Ottman, para 1; Foseman
Atft., pare. l. As to Jones, Day, these
pleadings have not been served upon anyone
authorized to accept them in the firm's
behalf. Thus, not only was the service
that was attempted on November 9, 1988
woefully defective as to the Jones, Day
defendants, but Mr. Hemenway, an attorney,
has completely fabricated a story regard-
ing service, which appears in a signed
pleading filed with this Court.
ARGUMENT
-2l1-
A-499
CE eT —————————
——————— ti‘
ri
DISMISSAL OF THE COMPLAINT AS AGAINST
THE ATTORNEY DEFENDANTS IS COMPELLED
DUE TO INSUFFICIENT SERVICE OF
PROCESS
Plaintiffs did not make valid service
of process upon defendants as required un-
der Rule 4 of the Federal Rules of Civil
Procedure. Rule 4(d) (1) provides that |
service may be made upon an individual by
delivering a copy of the summons and com-
plaint "to the individual personally" or |
"by delivering a Copy of the summons and |
of the complaint to an agent authorized by
appointment or by law to receive service
of process." (emphasis added). Rule
4(a) (3) provides that service may be made
upon a partnership or other unincorporated
association “by delivering a copy of the
summons and of the complaint to an of-
ficer, a managing or general agent, or to
any other agent authorized by appointment
-22-
a-500
area
Or by law to receive service of process
”
It is plain that the attempted service
upon the Jones, Day defendants by
plaintiffs' messenger was not sufficient
to effectuate service under Rule 4(d)(1).
Service on a person or entity other than
the defendant is effective under Rule
4(d)(1) only where that person or entity
is specifically authorized to accept ser-
vice on defendant's behalf. See Schwarz
v. Thomas, 222 F.2d 305, 308 (D.C. Cir.
1955); 4A Wright and Miller, Federal Prac-
tice and Procedure, §§ 1097, 1098; 1
Moore's Federal] Practice, para. 4.12.
This authorization must come from the per-
son upon whom service is to be made.
Hardy v. O'Daniel, 16 F.R.D., 355, 356
(D.D.C. 1954); Bennett v. Circus U.S.A.,
fom Pamets 142, 147 (H.BD. Ind. i985)
("there must be evidence of an actual ap-
pointment.").
Ms. Ferguson's affidavit recites that
she had never been appointed or even asked
to receive service of process on behalf of
Jones, Day, Roseman or Ottmann. Ferguson
Aff., para. 7. Moreover, Ms. Ferguson's
position as a receptionist at defendants’
place of business did not automatically
render her an agent for this purpose. In
Larry M. Rosen & Associates, Inc. v. Hur-
witz, 465 A. 2d 1114 (D.C. App. 1983), for
example, the court held that service upon
a receptionist in defendants' office, who
was not authorized by defendants to accept
service of process on their behalf, did
not satisfy the requirements of Rule
4(d)(1), even though she was authorized to
sign for and open all defendants’ mail.
Similarly, the courts have repeatedly held
that service on secretaries or co-workers
is not sufficient for purposes of Rule
4(a)(1), absent formal appointment or
designation by law. Lense] Lopez v. Cor-
-24-
a-502
——————————————————————————
dero, 659 F. Supp. 889 (D. Puerto Rico
1987) (service upon official's secretary
invalid where secretary was not an agent
authorized by appointment to receive ser-
vice of process); Betlyon v. Shy, 573 F.
Supp. 1402, 1406 (D. Del. 1983) (same) ;
Lamont v. Haig, 539 F. Supp. 552-57
(W.D.S.D. 1982) (same); Lavender-Cabellero
v. Dep't of Consumer Affairs of the City
of New York; 458 F. Supp. 213, 216
(S.D.N.Y. 1978) (merely dropping off a
summons with a fellow employee is insuffi-
cient service of process absent evidence
of authorization of fellow employee to ac-
cept service or representation by fellow
employee that summons would be
delivered) .’
Moreover, even if plaintiffs' mes-~-
senger had delivered copies of the Summons
and Complaint to Jones, Day's mailroon,
see Ferguson Aff., para 3, this would
still not have been proper service as to
Ottmann and Roseman. Delivery to a
defendant's place of business does not
fall within any of the categories under |
Rule 4(da)(1). See Leichtman v. Koons, 527
A.2da 745, 747 (D.C. App. 1987); Betlyon v.
Shy, 573 F. Supp. at 1405. Thus, service |
of process on Jones Day would not have |
satisfied the requirements of Rule 4(d) (1) |
unless Ottman and Roseman had specifically
designated Jones, Day as an agent to
7 That Ottman and Roseman eventually
obtained a copy of the Summons and Com-
plaint does not cure plaintiffs’ defective
service. Richards v. New York State Dep't
of Corr. Services, 572 F. Supp. 1168, 1173
(personal service of summons upon a party
through a co-employee does not constitute
sufficient service unless the co-employee
is an agent of the party to be served,
even if summons shortly thereafter came:
into possession of party to be served).
-26-
a=-504
receive service of process, which they did
not. It follows, therefore, that the con-
plaint must be dismissed as to defendants
Roseman and Ottman.
With respect to Jones, Day, leaving
the Complaint and Summons with an un-
authorized receptionist clearly did not
effectuate service on the firm under Rule
4(d) (3). For the reasons already noted
above, Ms. Ferguson was not "an officer, a
managing or general agent" or other "agent
authorized by appointment or by law to
receive of process" on behalf on (sic]}
Jones Day. All counts against Jones Day
should therefore be dismissed pursuant to
Rule 12(b) (5).
II. THE COMPLAINT MUST BE DISMISSED AS
AGAINST THE JONES, DAY DEFENDANTS BE
CAUSE IT DOES NOT STATE A VALID CAUSE
fe) AG TH
Jones, Day, Ottman and Roseman have
been sued in this case for successfully
27
A=505
representing the interests of their
client, a private litigant, in a
preliminary phase of a civil action.
Plaintiffs - this time around - have
framed their claims as Civil Rights Act
violations. Even assuming the truth of
all of plaintiffs' scurrilous charges
against these moving parties, it is crys-
tal clear that the allegations of the Com-
plaint do not provide, as a matter of law,
any valid basis for a claim under either §
1983 or u 1985(3).
We note at the outset that this cCir-
cuit has “articulated a heightened plead-
ing standard demanding especial particu-
larly {sic] in civil rights complaints."
Thomas v. News World Communications, 681
F. Supp. 55, 67 (D.D.C. 1988) (J. Oberdor-
fer, presiding), citing Hobson v. Wilson,
737 F.2d 1 (D.D.c. Cir. 1984), cert
denied, 470 U.S. 1084 (1985); see also |
Martin v. Malhoyt, 830 F.2d 237, 258 (D.C.
-28-
a-506
Cir.) reh'g denied, 933 F.2d 1049 (1987)®
Accordingly, “complaints containing only
'conclusory,' 'vague,' or ‘general allega-
tions' of a conspiracy to deprive a person
of constitutional rignts will be dismissed
Pd
a
3
Diffuse and expansive allegations
are insufficient .. . " Hobson v. Wil-
son, 737 F.2d at 30, quoting Ostrer v.
Aronwald, 567 F.2d 551, 553 (2d Cir. 1977)
(emphasis added). In the instant case,
the complaint is a classic example of a
"vague," "conclusory," "diffuse" and "gen-
eral" pleading. Repetitive incantations
of statutory language fill the document,
but these are not supported by reference
to material facts. Hobson v. Wilson, 737
8g This strict pleading standard,
which applies to claims brought under both
§ 1983 and 1985(3), Thomas v. News World
Communications, 681 F.Supp. at 67, n.3,
has been adopted by “every other circuit."
Hobson v. wilson, 737 F.2d at 30 and n.87.
See also, _v. McCorkle, 462 F.2d
lll, 114 (3d Cir. 1972), cert. denied, 409
U.S. 1042 (1972); Del Signore v. City of
McKeesport, 680 F.Supp 200, 203 (W.D. Pa.
1988), aff'd, 877 F.2d 54 (3d Cir. 1989)
-29-
-
F.2a@ at 30. Plaintiffs' failure to meet
this pleading standard is itself fatal to
their claims. The deficiencies of the
pleading are all the more glaring in view
of plaintiffs' failure to satisfy the sub-
stantive pleading requirements which gov-
ern the assertion of claims under §§ 1983
and 1985(3). These requirements are dis-
cussed below.
A. Count I Does Not State A Valid
Claim Under 42 U.S.C. § 1983
There are two fundamental and un-
compromising requirements that a plaintiff
must meet in order successfully to invoke
§ 1983.” First, a plaintiff must plead
9 42 U.S.C. § 1983 provides:
Every person who, under color or any |
statute, ordinance, regulation, custom or
usae, of any State or Territory or the
District of Columbia, subjects, or causes
to be subjected, any citizen of the United
States or other person within the juris-
diction thereof to the deprivation of any
rights, privileges, or immunities ecured
by the Constitution and laws, shall be li-
able to the party injured in an action at
law, suit in equity or other proper pro~
ceeding for releases.
-30-
a-508
and prove that the defendant has deprived
him of a right that is secured by the Con-
stitution and laws of the United States.
Hagans v. Lavine, 415 U.S. 528, 536
(1974); Adickes v. S.H. Kress & Co., 398
-S. 144, 150 (1970). Second, he must
plead and prove that the defendant
deprived him of such a right while acting
"under color of state ... law." Gomez v.
Toledo, 446 U.S. 635, 640 (1980); Adickes
S.-H. Kress & Co., 398 U.S. at 150,
citing Monroe v. Pape, 365 U.S. 167, 184
(1961). Plaintiffs have not met either of
these requirements, and therefore have
failed to state a cognizable claim under §
1983. We turn first to the "under color
of law" requirement.
1. The Complaint Does Not Plead Facts
Sufficient To Support Plaintiffs'
Conclusory Claim That Defendants
Acted "Under Color Of State Law".
-3l-
A@-” ‘
Generally, a person acts “under color
of state law" only when his conduct al-
legedly causing the deprivation of a fed-
eral right is "fairly attributable to the
State." Lugar Vv. as. Be
U.S. 922, 937 (1981); see also United
States Vv. Classic, 313 U.S. 299, 326
(1941). The United States Supreme Court
has recognized a two-part approach to the
question of "fair attribution." "First,
the deprivation must be caused by the ex~
ercise of some right or privilege created
by the State or by rule of conduct imposed
by the State or by persons for whom the
State is responsible . +: > Second, the
party charged with the deprivation must be
a person who may be fairly said to be a
state actor." Lugar v. Edmondson Oil Co.,
457 U.S. at 937. “without a limit such as
this," noted the court, "private parties
could face constitutional litigation when-
ever they seek to rely on some state rule
-32-
A-510
governing their interaction with the conm-
munity surrounding then." Id., _see also
Jobson v. Henne, 355 F.2d 129, 133 (2d
Cir. 1966) (the “color of law" test is
difficult to satisfy in cases where the
defendant is not a governmental official).
While the Complaint is liberally pep-
pered with the phrase “under color and
authority of the laws of the District of
Columbia," plaintiffs have not alleged any
legitimate grounds for attributing to the
state the conduct of the defendant private
attorneys and law firm. Reading between
the lines of the Complaint, it appears
that plaintiffs contend, in the alterna-
tive, that the Jones, Day defendants acted
"under color of law" (1) merely by using
the processes of the District of Columbia
judicial system; or (2) by conspiring in
some unspecified way with state judicial
officials. Both of these hypothetical
bases require a strained reading of the
-33-
Ae511
Complaint; neither is availing for the
purposes of satisfying the "under color of
law" requirement.
If plaintiffs' contention is that one
becomes cloaked with the authority of the
State when he uses the state judicial sys-~-
tem, plaintiffs are mistaken. See Dahl v.
Alvin, 630 F.2d 277, 280-81 (5th Cir.
1980), cert. denied, 451 U.S. 908 (1981)
(a private party's use of a state's judi-
cial system is not state action even
though the judicial process itself is a
state action). To begin with, attorneys
are not officials of government solely by
virtue of being attorneys. in re Grif-
fiths, 413 U.S. 717, 729 (1973). Nor are
they imbued with the authority of the
State by virtue of being officers of the
Court. Drum v. Nasuti, 648 F. Supp. 888,
896 (E.D. Pa. 1986) aff'd, 831 F.2d 286
(3rd Cir. 1987). “An attorney does not
become a state actor merely by virtue of
-34-
a251 2
instigating state court litigation,"
Barnard v. Young, 720 F.2d 1188, 1189
(10th Cir. 1983), citing Lugar v. Edmond-
son Oi] Co., 457 U.S. at 939.
Moreover, private attorneys "cannot be
held liable under section 1983 for
unilateral actions which they took on be-
half of their clients." Drum v. Nasuti,
648 F. Supp. at 897. Id. Attorneys who
participate in the trial of private state
court litigation are not state
functionaries acting under color of state
law. Skolnick v. Martin, 317 F.2d 855,
857 (7th Cir. 1963). See also Barnard v.
Young, 720 F.2d at 1189 (an attorney does
not act under color of state law merely by
using the device cf a subpoena duces
tecum). And, attorneys who represent pri-
vate clients in civil actions where the
state has no interest and where no state
statute authorizes the attorney's conduct
which is later complained of, do not act
=35<
ao513
under color of state law. Kovacs v.
Goodman, 383 F.Supp. 507, 509 (E.D.Pa.
1974), aff'd, 515 F.2a 507 (3rd Cir.
1975).
These general principles were adopted
and applied by the United States Supreme
Court im Polk County v. Dodson, 454 U.S.
312 (1981). In that case, the Court held
that even a public defender, who is paid
by the State, does not act under color of
state law when he exercises independent
judgment in a criminal proceeding and per-
forms a lawyer's traditional functions as
counsel for defendants. Id. at 323. The
Court noted: :
(I)t is often said that lawyers are
tofficers of the court.' But the
Courts of Appeals are agreed that a
lawyer representing a client is not,
by virtue of being an officer of the
court, a state actor ‘under color of
state law' within the meaning of §
1983.
454 U.S. 318. Important to the Court's
ruling was the fact that a public defender
is "held to the same standards of com-
petence and integrity as a private law-
yer," and that "a public defender works
under canons of professional responsibili-
ty that mandate his exercise of indepen-
dent judgment on behalf of the client."
Id. at 321. Such independence from the
influence of the State is even clearer in
the present case, where the attorneys’
representation of their client in no way
involved either the participation, the
financing, or the approval of the State.
Indeed, the Complaint alleges that judi-
cial officials became involved in the acts
complained of only after the attorney
defendants had already completed their
functions as advocates -- i.e., after the
motion for a temporary order had been
argued, and after the consent order had
been agreed upon by Vo and Sun Refining.
In sum, the allegations of the Con-
plaint, fairly read, merely describe the
actions of attorneys qua attorneys. Under
-37-
a@-51
wi
the authority cited above, such allega~
tions are insufficient to meet the “under
color of law" requirement of § 1983.
It is also important to note that
plaintiffs allege that the attorney
defendants' attainment of a temporary
restraining order without notice to Hoai
was in violation of the “law of the Dis-
trict of Columbia and the practice, rules
and custom of the Superior Court of the
District of Columbia." Complaint para.
43. In Lugar Vv. Edmondson, the Court
ruled that an allegation that the
defendant acted contrary to state law
precludes a claim that the defendant acted
"ynder color of state law":
Count two alleged that the depriva-
tion of property resulted from
respondents' ‘malicious, wanton,
willful, opressive (sic) unlawful
acts.' By ‘unlawful’ petitioner ap~
parently meant ‘unlawful under state
law.' To say this, however, is to
say that the conduct of which
petitioner’ complained could not be
ascribed to any governmental deci-
sion; rather, respondents were ac~
ting contrary to the relevant policy
articulated by the State. Nor did
-38-
they have the authority of state of-
ficials to put the weight of the
state behind their private decision,
i.e., this case does not fall within
the abuse of authority doctrine
recognized in Monroe v. Pape, 365
U.S. 167 (1961) .. . Count two,
therefore, does not state a cause of
action under § 1983 but challenges
only private action.
457 U.S. at 940. In the present case,
plaintiffs' allegation that defendants
acted contrary to law (Complaint para. 43)
is far more explicit than the one which
proved dispositive in Lugar. Under the
rule articulated in Lugar, Count I of the
Complaint in this case "challenges only
private action" and therefore must be dis-
missed.
Insofar as plaintiffs' "under color of
law" recitations are grounded in some kind
of conspiracy claim, such a claim must
also fail. Private parties may be held
liable under § 1983 if they conspire with
state or local government officials to
deprive others of their constitutional
rights. See Adickes v. S.H. Kress & Co.,
-39-
a2) 1 7
398 U.S. at 152; Thomas V ws W Com-
munications, 681 F. Supp. at 67. However,
when a plaintiff alleges that a private
person willfully participated in a joint
action with a state official, he must
plead and demonstrate that there existed
between the private defendant and the
state official an understanding, agree~
ment, or conspiracy to deprive the
plaintiff of a federal right. um _v.
Esute, 648 F. Supp. at 897. Merely
resorting to the courts and being on the
winning side of a lawsuit does not make 4
party a co-conspirator or 4 joint actor
with the judge. e Vv s, 449
U.S. 24, 28 (1980).
The "heightened pleading standard"
articulated by this Circuit in Hobson v-
wilson applies with particular force where
private parties are sued under § 1983
based upon an alleged conspiracy: 737
F.2d at 30. In the present case, the Con-
a-518
plaint does not contain any express al-
legations of judicial conspiracy. Para-
graph 44 of the Complaint states Only that
"the defendants, and all of them, schemed
and planned to evade this requirement and
to instead use the very color of law and
apparent authority of the Superior Court
to deprive the plaintiff Hoai of those in-
portant rights .. . and of his property,
the gas station." No particular facts of
this alleged scheme appear anywhere in the
Complaint. Such a vague and conclusory
allegation runs squarely aginst the plead-
ing standard set forth in Hobson, and thus
cannot suffice as a basis for plaintiffs'
"under color of law" averment.
In sum, plaintiffs have failed to
state with the requisite particularity any
cognizable basis for their conclusory con-
tention that the attorney defendants, in
representing the private interests of Vo,
acted under color of state law. Moreover,
certain allegations of the Complaint com~
pletely foreclose such a contention.
>. The Complaint Does Not Properly
Allege The Deprivation of A
Federal Right
Plaintiffs have failed to meet the
second prong of the threshold pleading re-
quirements applicable to § 1983 claims -~
namely, alleging the deprivation of a fed-
eral right. See Samuels V- district of
Columbia, 779 F.2a 184, 199 (D.c. Cir.
1985). Section 1983 does ot reach conduct
that violates only state law. Baker v-
McCol]lan, 443 U.S. 137, 142 (1979).
The deprivations that plaintiffs do
allege are the following: (1) Hoai's
right to occupy the service station; (2)
John Hemingway's (sic) right to represent
Hoai; (3) David Hemingway's [sic] right to
work at the service station; (4) Hoai's
right to counsel of his choosing; (5)
plaintiffs' right to travel in the vicini-
-42-
a2520
ty of the service station; and (6)
plaintiffs' due process right to notice of
the consent order between Hoai (sic) and
Sun Refining. These so-called "rights"
either do not arise under federal law or
the Constitution, or are so generally and
conclusorily plead as to render then
patently insufficient to Support
plaintiffs' § 1983 clain.
There is no federally-sanctioned
"right" to operate a service station, to
represent another in a judicial proceed-
ing, to work at a service station, or to
retain a particular attorney ina civil
matter. see Thomas v. News World Communi-
cations, 681 F. Supp. at 66 (no action un-
der § 1983 will lie for assault, defama-
tion or libel because neither the Con-
stitution nor other federal law estab-
lishes a right or privilege to be free
from assault, defamation or libel)
Plaintiffs' claim to a right of freedom to
travel within the vicinity of the service
station likewise has no basis in federal
law. The only federally recognized “right
to travel" is that provided in Clause 1 of
Section 2 of Article 4 of the Constitu-
tion. That section has been construed to
provide that a Untied States citizen has
the right to travel from one state and to
take up residence in a state of his
choice. E:G:, Jones v. Helms, 452 U.S.
412, 418 (1981)- plaintiffs’ claimed
right to teravel within the vicinity of
the service station" certainly does not
come within this protection.
Due process is unquestionably 4 con-
stitutional right, but plaintiffs have
failed to plead facts sufficient to
demonstrate that any conduct of the at~-
torney defendants deprived plaintiffs of
that right. Plaintiffs apparently allege
that the agreement between Vo and sun
Refining gave rise to the consent order
-44-
a=522
and the court's signing of that order
without notice to plaintiffs resulted in a
deprivation of due process. Complaint,
paras. 43-45. Such a contention is un-
availing as a matter of law. As admitted
in the Complaint, none of the plaintiffs
was a party to this consent order; in-
deed, it explicitly excluded plaintiffs
from its reach. Accordingly, the pendency
of the consent order impaired no legal
right of plaintiffs whatsoever. It did
not, and does not, hinder plaintiffs from
exercising any right they may have to pur-
sue their claims and defenses in the Supe-
rior Court action, or for that matter, any
other right they may have. Defendants did
not, and could not, prevent plaintiffs
from exercising their "right, if any there
were, to challenge this third-party order.
Plaintiffs appealed the consent order and
lost?9. Similarly, defendants were not in
a position to prevent plaintiffs from
seeking to enjoin the operation of the
consent order, & remedy available to them
under Rule 65 of the Superior Court Rules,
which is identical to the same federal
rule. Plaintiffs failed to seek such 4
hearing.
Due process rights are not implicated
where two private parties enter into a
private agreement without providing notice
to, or obtaining the consent of a non-~
party. The fact that the Superior Court
approved the consent order did not alter
its basic character. In short, the facts
surrounding the consent order do not sup-
port plaintiffs’ claimed deprivation of
due process.
10 Notably, the Complaint does not al-
lege that the Court of Appeals for the
District of Columbia acted in concert with
defendants in denying plaintiffs’ inter-
locutory appeal.
-46-
n-524
To the extent that plaintiffs' claims
of deprivation of due process are based
upon the attorney defendants' allegedly
false statements to the District of Colun-
bia Superior Court, (which is by no means
Clear from the Complaint), such claims are
barred, as a matter of law, by the doc-
trine of absolute privilege. Communica-
tions made by an attorney during the
course of and as part of a judicial pro-
ceeding are absolutely privileged, pro-
vided that the statements bear some rela-
tion to the proceeding. _See Arneja v.
Gildar, 541 A.2a 621, 623 (D.C. 1988);
Mohler v. Houston, 356 A.2ad 646, 647 (D.C.
1976) (attorneys protected from defamation
actions by absolute privilege for state-
ments made in the course of judicial pro-
ceedings). The absolute privilege from
suit has been extended to actions filed
under § 1983. E.g., Holt v. Casteneda,
832 F.2d 123, 125-26 (9th Cir. 1987),
cert. denied, 108 S.Ct. 1275 (1988); Katz
v. Morgenthau, 709 F. Supp. 1219, 1232
(S.D.N.¥. 1989) (witnesses in adversarial
hearing held to be absolutely immune from
§ 1983 actions).
The absolute privilege reflects the
importance and necessity of the free flow
of information during judicial proceed-
ings. Creamer v. Danks, 700 F. Supp-
1169, 1171 (D. Me. 1988), aff'd, 863 F.2d
1037 (1st Cir. 1988). An attorney must be
free to assert all relevant statements
necessary to fully and strenuously to
represent the interests of his client.
Id.
In the present action, plaintiffs
state that the allegedly false statements
of the attorney defendants were made dur-
ing the course of judicial proceedings and
were directly related to that action. In
light of the absolute privilege attaching
to statements of counsel and the underly-
-48-
a-5 26
ing public policy against imposing bar-
riers to zealous advocacy, the statements
made by the attorney defendants in court
cannot provide a valid basis for
plaintiffs' § 1983 clain.
Finally, to the exten that the Hemen-
ways' § 1983 claims are based upon the
entry of the consent order, such clains
are barred under the doctrine of col-
lateral estoppel. Under this doctrine,
"issues fully litigated between the
parties in one action are conclusively
determined therein and may not be
relitigated in any subsequent action be-
tween the same parties or their privies."
Hagans Management Co., Inc. v. Nichols,
409 A.2d 179, 181 (D.c. App. 1979); U.S.
Vv. Lima, 424 A.2d 113, 116 (D.C. App.
1980).22 This rule applies even though
the cause of action for the relief sought
in the subsequent action differs from that
in the original suit. Goldkind v. Snider
Bros., inc.-, 467 A.2da 468, 473-74 (D.C.
App. 1983); Adams v. Jonathan Wwoodner Co.,
475 A.2da 393 (D.C. App- 1984). Further-
more, it is "beyond doubt that the defense
of res judicata is available in a sub-
sequent § 1983 action." Hernandez v. City
of Lafayette, 699 F.2d at 736, citing Al-
len V. McCrory, 449 U.S. 90, 101 (1980).
As noted above, plaintiffs have al-
ready challenged the procedural validity
of the consent order, in an interlocutory
appeal to the District of Columbia Court’
of Appeals. (Exhibit Cc to Roseman Aff.)
That court dismissed the appeal as frivo-
1l a Federal court asked to give res
judicata effect to a state court judgment
must apply the res judicata principles of
the state whose decision is set up as 4
bar to further litigation. Hernandez V-
7h 1 699 F.2d 734,
(5th Cir. 1983).
LU
lous. (Exhibit E to Roseman Aff.) This
dismissal pursuant to Rule 14 of the Rules
of the District of Columbia Court of Ap-
peals constitutes a conclusive ruling on
the Hemenways' claims, which may later bar
the assertion of the same arguments in a
subsequent action. See Fletcher v. Vakas,
144 A.2d 105-106 (D.C. 1958) (dismissal of
complaint for failure to state a cause of
action constitutes an adjudication on the
merits, barring litigation of the dis-
missed claims in a subsequent action).
Thus, since the Hemenways raised the
issue of the validity of the consent order
in their interlocutory appeal, and the
District of Columbia Court of Appeals has
already ruled that their challenge to the
order was frivolous, the Hemenways are
barred from re-raising this challenge in
the present action. Their challenge to
the consent order is no less frivolous now
that it has been raised in another court,
-5l-
under a different guise. Changing the
label of these already-litigated claims
does not entitle the Hemenways to
relitigate the issue of the validity of
the consent order.??
The foregoing reasons, plaintiffs may
not sustain a valid claim under 42 y.S.C.
§ 1983. Accordingly, Count I of the Com-
plaint must be dismissed, with prejudice.
B. count II Fails to State A Valid
Claim Under 42 U.S.C. § 1985(3)
Plaintiffs allege in Count Two of the
Complaint that defendants conspired to
deprive Mr. Hoai of his property rights
"by the use of the consent order and al-
12 as noted above, Hoai's claim that
vo's alleged faise statements to the Supe-
rior Court deprived Hoai of the equal pro-
tection of the laws in violation of 42
U.S.C. § 1985(3) was previously raised in
the RICO action, but conclusively rejected
by the district court in dismissing that
action. (Exhibit JI to Roseman Att.)
Thus, Hoai, and arguably the Hemenways,
are collaterally estopped from pursuing
such a claim in the present action. (See
discussion of Count II, below-)
-52-
ae 359
legediy false testimony" in violation of
42 U.S.C. § 1985(3). (Complaint, para.
48). Once again, plaintiffs have failed
to plead sufficient facts to support their
claim. Section 1985(3) does not apply to
all conspiratorial interferences with the
rights of others, but is very limited in
scope. It provides, in pertinent part:
If two or more persons in ant (sic)
State or Territory conspire ‘
for the purpose of depriving, either
directly or indirectly, any person
Or class of persons of the equal
protection of the laws, or of equal
privileges and immunities under the
laws . . . the party so injured or
deprived may have an action for the
recovery of damages, occasioned by
such injury or deprivation, against
any one or more of the conspirators.
The Supreme Court has interpreted the
statute's intent requirement to mean that
"there must be some racial, or perhaps
otherwise class-based, indiviously dis-
riminatory animus behind the con-
0
Spirator's action." Griffin v. recken-
ridge, 403 U.S. 88, 102 (1971). Accord-
ingly, this Circuit has held that to state
-53-
& 24
2 el?
a valid claim under § 1985(3), 4 plaintiff
must allege:
(1) a conspiracy; (2) for the pur-
pose of depriving, either directly
or indirectly, any person or class
of persons for the equal protection
of laws --+ > and (3) an act in fur-
therance of the conspiracy; (4)
whereby a person is either injured
in her person Or property or
deprived of any right or privilege
of a citizen of the United States.
Martin v. Malhoyt, 830 F.2d 237, 258 (D.C.
Cir. 1987), citing Hobson V- Wilson, 737
F.2d at 14.
In the present case the Complaint al-
leges that defendants' actions constituted
an “invidious discrimination," at para.
48, but does not state that such actions
were motivated by 4 racial or any other
class-based animus. Under Griffin, and
Martin v. Malhoyt, this omission is fatal
to Count 11.213 "Rightful franchise
holders," Complaint, para. 48, do not con-
stitute a "class" whose interests are pro-
tected under § 1985(3).
Finally, plaintiffs' failure to state
the exact nature of the discrimination of
which they complain runs afoul of the
heightened specificity requiement govern-
ing the pleading of civil rights actions,
Hobson v. Wilson, 737 F.2d 1, and thus
also compels a dismissal of Count II. In
Hobson, the court stated:
In cases involving a claim that the
defendant acted with an unconstitu-
tional motive, we will require that
nonconclusory allegations of evi-
dence of such intent must be present
in a complaint.
13 It appears, in contrast, that
plaintiffs imply that the alleged dis-
crimination was motivated by purely eco-
nomic reasons. Yet the Supreme Court has
expressly declined to interpret § 1985(3)
to encompass conspiracies motivated by
commercial or economic animus. United
Brotherhood of Carpenters v. Scott, 463
U.S. 825, 836-39 (1983).
2+, AL SF- >ee ai5S9 Maxktan v. Masnoye,
830 F.2d at 258 ("unsupported factual al-
legations which fail to specify in detail
the factual basis necessary to enable
(defendants) to intelligently prepare
their defense will not suffice to sustain
a claim cf governmental conspiracy.");
Thomas V ews World Commu ons, 681
F. Supp. at 67. ;
Given the Complaint's failure to al-
lege a class-based animus, oF to allege
facts with sufficient particularity to
support a claim of conspiracy or of in-
vidious discrimination, Count II must be
dismissed, with prejudice.
CONCLUSION
For the foregoing reasons, defendants
Jones Day, Ottman and Roseman respectfully
request this Court to issue an order dis-
missing, with prejudice, the Complaint as
it pertains to then.
Dated: November 29, 1989
-56-
A=5 34
Respectfully submitted,
JONES, DAY, REAVIS & POGUE
BY: Francis xX. Markey (No 387678)
Brian P. Maschler
Metropolitan Square
1450 G Street, N.W.
Washington, D.C. 20005
(202) 879-5497
THIS PAGE INTENTIONALLY LEFT BLANK.
U.S.DISTRICT COURT
USDC DISTRICT OF COLUMBIA (WASHINGTON)
CIVIL DOCKET FOR CASE # 887-CV-2456
(JUNE 12, 1991 THRU OCTOBER 3,1991)
HOAI . SUN REFINING/MARKETING
ASSIGNED TO: JUDGE LOUIS F. OBERDORFER
REFERRED TO: MAGISTRATE PATRICK J. AT-
TRIDGE
DEMAND: $30,000 (SIC)
LEAD DOCKET: NONE
DKT# IN OTHER COURT: NONE
FILED: 9/8/87
JURY DEMAND: PLAINTIFF
NATURE OF SUIT: 890
JURISDICTION: FEDERAL QUESTION
THANH VONG HOAI LAURENCE A. ELGIN
PLAINTIFF [COR]
2762 WOODLEY PLACE
WASHINGTON, DC 20008
(202) 628-1114
JOHN DAVID HEMENWAY
[COR LD NTC}
4816 RODMAN STREET, NW
WASHINGTON, D.C. 20016
(202) 244-4819
S. CHURCHILL ELMORE
[COR NTC]
805 15TH STREET, NW
SUITE 600
WASHINGTON, DC 20005
(202) 628-4082
wT
Ve
SUN REFINING JOHN GORDON FORESTER, JR.
AND MARKETING (COR LD NTC]
CO.,INC. GREENSTEIN, DELORME &
27
A=
DEFENDANT LUCHS
1620 L STREET, NW
SUITE 900
WASHINGTON, D.C. 20036
(202) 452-1400
+ * ” +
DATE DKT# ACTION
6/12/01 .°"* PRE-TRIAL CONFERENCE BEFORE
JUDGE LOUIS F. OBERDORFER
FURTHER PRETRIAL CONFERENE
SET FOR JUNE 14, 1991,
3:15PM; TRIAL TO COMMENCE
ON JUNE 20, 1991 REPORTER
T. DOURIAN (MON)
6/12/91 311 ORDER (COPY) FILED IN USCA
6/12/91 DENYING THE PETI-
TION FOR A WRIT OF MANDAMUS
6/13/91 318 NOTICE OF FILING BY DEFEND-
ANT'S SUN REFINING/
MARKETING STATEMENT OF
28
4 ~~
aed
MATERIAL FACTS IN GENUINE ISSUE; EX-
HIBITS (3) (BLJ)
(ENTRY DATE 06/14/91)
6/14/91 317 ORDER BY JUDGE LOUIS F.
OBERDORFER: PRETRIAL CON-
FERENCE SET FOR 2:45 6/24/91;
TRIAL SET FOR
JUNE 20, 1991 IS CONTINUED
TO A DATE TO BE SCHEDULED.
(N) (MON)
6/17/91 319 NOTICE OF FILING BY DEFEND-
ANT SUN REFINING/MARKETING
OF CORRECTED PRETRIAL
STATEMENT WHICH CORRECTLY
IDENTIFIES THE FILING PARTY
AS DEFENDANT. ATTACHMENT
(AJR) [ENTRY DATE 06/19/91)
6/19/91 320 RESPONSE BY DEFENDANT SUN
Ae-52 4
/ .
REFINING/MARKET IN OPPOSI~- TION TO
PLAINTIFF'S MOTIN
TO STRIKE DEFENDANT'S
EXPERT WITNESS [309-1] BY
THANH VON HOAI; ATTACHMENTS
(2) (BLJ) (ENTRY DATE 06/25
91]
6/19/91 321 PRETRIAL STATEMENTS (SUP-
PLEMENTAL) BY DEFENDANT SUN
REFINING/MARKET (BLJ) [ENTRY DATE
06/21/91)
6/21/91 322 NOTICE TO TAKE DEPOSITION
BY PLAINTIFF THANH VONG HOAI; OF MR.
DAVID ROSEMAN,
AND MR. MILLARD OTTMAN (BLJ )
(ENTRY DATE 06/26/91)
6/24/31 ** PRE-TRIAL CONFERENCE BEFORE
JUDGE LOUIS F. OBERDORFER
REPORTER: TOM DOURIAN (MON)
6/24/91 325 MOTION BY THANH VONG HOAI
FOR RECONSIDERATION AND
CORRESPONDING TIME EXTEN-
SION WITH REGARD TO DOCU-
MENTS AND INTERROGATORY
ANSWERS FOR DEFENDANT (BM)
[ENTRY DATE 07/02/91}
6/24/91 326 MOTION BY THANH VONG HOAI
FOR RECONSIDERATION OF THE
MAGISTRATE'S RULING WITH
REGARD TO
PLAINTIFF'S
PROPOSED EXPERT WITNESSES;
ATTACHMENT (BM)
(ENTRY DATE
007/20/91}
6/24/91 327 MOTION BY THANH VONG HOAI
FOR RECONSIDERATION OF THE
MAGISTRATE'S RULING DENY-
ING PLAINTIFF'S MOTION TO
COMPEL COMPLETE AND TRUTHFUL
RESPONSES FROM
A WITNESS; ATTACHMENT (BM)
(ENTRY DATE 07/02/91)
6/24/91 328 MOTION BY THANH VON HOAI
FOR RECONSIDERATION OF THE
MAGISTRATE'S RULING DENYING
PRODUCTION OF DOCUMENTS FROM
DEFENDANT; ATTACHMENT.
(BM) [ENTRY DATE 07/02/91]
6/24/91 329 MOTION BY THANH VONG HOAI
FOR RECONSIDERATION OF THE
MAGISTRATE'S RULING WITH
REGARD TO PLAINTIFF'S
MOTION TO COMPEL ANSWERS
TO INTERROGATORIES? ATTACH-
MENT (BM) [ENTRY DATE 07/02/91)
a-542
OE
a
6/27/91 330 RESPONSE BY DEFENDANT SUN
REFINING/MARKET IN OPPOSI- TION TO MO-
TION FOR RECON-
SIDERATION OF THE MAGIS-
TRATE'S RULING WITH REGARD
PLAINTIFF'S PROPOSED EXPERT
WITNESSES [326-1] BY THANH VONG HOAI
(AJR) [ENTRY DATE
07/08/91}
6/27/91 331 RESPONSE BY DEFENDANT SUN
REFINING/MARKET IN OPPOSI-
TION TO MOTION FOR RECON- SIDERATION
AND CORRESPOND-
ING TIME EXTENSION WITH RE-
GARD TO DOCUMENTS AND
INTERROGATORY ANSWERS FOR
DEFENDANT [325-1] BY THANH VONG HOAI
(AJR) (ENTRY DATE
07/08/91)
6/27/91 336 ORDER BY JUDGE LOUIS F.
OBERDORFER: DENYING MOTION
TO SHOW CAUSE FOR FAILURE
TO COMPLY WITH COURT ORDER
OF MARCH 18, 1991 [307-1]
BY THANH VONG HOAI; DIRECT
ING THE JUDGMENT FOR THE
DEFENDANTS AGAINST PLAINTIFF'S
COUNSEL IN THE
AMOUNT OF $50.00 (N) (KS)
(ENTRY DATE 07/10/]
6/27/91 337 ORDER BY JUDGE LOUIS F.
OBERDORFER; DENYING MOTION
FOR RECONSIDERATION OF THE
MEMORANDUM AND ORDER DENYING
SUMMARY JUDGMENT
ENTERED 6/3/91 ON AN
EXPEDITED BASIS (310-1) BY
n-544
EE
ee ee
THANH VONG HOAI, DENYING MOTION IN
LIMINE FOR RULINGS EXCLUDING EX
POST
FACTS DOCUMENTS AND LINES
OF TESTIMONY [276-1] BY
THANH VONG HOAI (N) (KS)
(ENTRY DATE 07/10/91}
6/28/91 324 ORDER BY JUDGE LOUIS F.
OBERDORFER; DENYING MOTION
TO STRIKE DEFENDANT'S
EXPERT WITNESS [309-1] BY
THANH VONG HOAI DISCOVERY
DUE 7/23/91; PRETRIAL Co-
FERENCE SET FOR 1:45 9/16/
91; TRIAL SET FOR 10:00 10/7/91;
DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT DUE 8/1/91;
PLAINTIFF'S RESPONSE TO MOTION
FOR
SUMMARY JUDGMENT DUE 8/20/
91 SHOW CAUSE HEARING SET
FOR 7/8/91; (N) (MON)
6/28/91 332 RESPONSE (SUPPLEMENTAL) BY
PLAINTIFF THANH VONG HOAI
TO REQUEST FOR PRODUCTION
OF DOCUMENTS; ATTACHMENTS
(9) (CLV) (ENTRY DATE 07/
10/91]
6/28/91 333 MOTION BY PLAINTIFF THANH
VONG HOAI FOR PROTECTIVE
ORDER (CLV) (ENTRY DATE
07/10/91)
6/28/91 334 SUPPLEMENTAL MEMORANDUM TO
MOTION FOR RECONSIDERATION OF THE
MAGISTRATE'S RULING
WITH REGARD TO PLAINTIFF'S
MOTION TO COMPEL ANSWERS TO
INTERROATORIES (329-1) BY
A@-5 46
ee
SS ee
THANH VONG HOAI (CLV) (ENTRY DATE
07/10/91}
6/28/91 335 ANSWER (SUPPLEMENTAL) BY
PLAINTIFF THANH VONG HOAI TO INTER-
ROGATORIES (CLV)
[ENTRY DATE 07/10/91}
7/2/91 338 SUPPLEMENT TO RULE 26(B) (4)
STATEMENT FILED BY DEFEND-
ANT SUN REFINING/MARKET.
ATTAHMENT (AJR) [ENTRY DATE
07/10/91}
7/2/91 339 RESPONSE BY PLAINTIFF THANH
VONG HOAI TO THE COURTS
REQUEST TO SHOW CAUSE;
ATTACHMENT (KMK) [ENTRY DATE
07/11/91)
7/8/91 340 RESPONSE BY PLAINTIFF THANH
Ee sas
Am De |
VONG HOAI TO ORDER DISCOVERY
DUE 7/23/91;
PRETRIAL CONFERENCE SET FOR
1:45 9/16/91; TRIAL SET FOR
10:00 10/7/91; DEFENDANT'S
DUE
MOTION FOR SUMMARY JUDGMENT
8/20/91 SHOW CAUSE HEARING SET FOR
7/8/91:
[324-1] ORDER [324-2].
ATTACHMENT (ATR) [ENTRY DATE
07/11/91)
7/10/91 341 NOTICE TO TAKE DEPOSITION
BY DEFENDANT SUN REFINING/
MARKET OF PLAINTIFF THANH
VONG HOAI (AJR) [ ENTRY DATE
07/12/91)
QUEST BY DEFENDANT SUN
NT- IFF THANH
7/10/91 342 RE
REFINING/MARKET TO PLAI
VONG HOAI FOR
PRODUCTION OF DOCUMENTS.
(AJR) (ENTRY DATE 07/12/91]
7/10/91 343 MOTION BY DEFENDANT SUN RE-
FINING/MARAKET FOR SUMMARY
JUDGMENT ON THE EXEMPLARY
DAMAGES; EXHIBITS (6) (MF)
[ENTRY DATE 007/12/92]
7/11/91 344 DEPOSITION OF RODNEY SISK
TAKEN FOR DEFENDANT SUN
REFIING/MNARKET ON 6/12/91
(ENTRY DATE 07/12/91}
7/12/91 345 SUPPLEMENTAL MEMORANDUM BY
DEFENDANT IN OPPOSITION TO
APPEAL OF THE MAGISTRATE'S
RULING WITH REGARD TO DENIAL OF
ADDITIONAL EXPERT
WITNESSES [326-1] BY THANH
VONG HOAI (CPJ) [ENTRY DATE
4y
07/15/91]
7/12/91 346 MOTION BY DEFENDANT SUN
REFINING/MARKET TO AMEND
THE SUPPLEMENTAL PRETRIAL
ORDER (JDA) [ENTRY DATE
007/16/91])
7/22/91 347 MOTION BY DEFENDANT SUN
REFINING/MARKET TO ADMIT
COMPUTERIZED MONTHLY TOTALS
OF GASOLINE SOLD TO THE SUN
STATION; ATTACHMENTS (CLV)
(ENTRY DATE 07/21/91)
7/23/91 348 MOTION BY PLAINTIFF THANH
VONG HOAI TO COMPEL DISCOV- ERY OF IN-
FORMATIN ESSENTIAL
FOR COMPLIANCE WITH COURT
ORDER OF 6/28/91 (CJP) (ENTRY DATE
07/24/91)
7/25/91 349 MOTION BY DEFENDANT SUN
REFINING/MARKET FOR SUMMARY JUDGMENT ON
THE LIMITATION
OF DAMAGES FROM 9/8/86 TO
4/27/87; EXHIBITS (9) (CPJ)
(ENTRY DATE 07/30/91}
7/31/91 350 MEMORANDUM BY SUN REFINING/
MARKET IN OPPOSITION TO
MOTION TO COMPEL DISCOVERY OF INFORMA-
TION ESSENTIAL
FOR COMPLIANCE WITH COURT
ORDER OF 6/28/91 [348-1] BY
THANH VONG HOAI (BM) [ENTRY DATE
08/01/91)
8/1/91 351 ORDER BY MA/JUDGE PATRICK
J. ATTRIDGE: DIRECTING
DEFENDAT TO REQUEST FROM
ITS FORMER EMPLOYEE LINDA
S & 9
“A= }
FIDEL-GRAHAM TO VOLUNTARILY
APPEAR NO LATER THAN 8/16/
91 FOR A DEPOSITION BY COUNSEL FOR
THE PLAINTIFF;
IF DATE IS NOT AGREEABLE TO
THE WITNESS, THE DEFENDANT
SHALL PROVIDE THE PLAINTIFF
BY 8/10/91 WITH THE WITNESS '
LAST KNOWN RESIDENCE AND BUSINESS
ADD-
RESS; (N) (CLV) [ENTRY DATE
08/02/91)
8/5/91 352 MOTION BY PLAINTIFF THANH
YONG HOAI TO EXTEND TIME TO
8/16/91 TO REPLY TO DEFEND-
ANT'S MOTION TO ADMIT COM-
PUTERIZED MONTHLY TOTALS OF
GASOLINE SOLD TO THE SUN
STATION (CPJ) (ENTRY DATE
08/07/91]
a-552
8/5/91 353 RESPONSE BY PLAINTIFF THANH
VONG HOAI IN OPPOSITION TO
MOTION FOR SUMMARY JUDGMENT
ON THE EXEMPLARY DAMAGES
(343-1) BY SUN REFINING/
MARKET, AFFIDAVITS (3)
ATTACHMENTS (CJP) ENTRY
DATE 08/07/91)
8/5/91 354 MOTION By PLAINTIFF THANH
VONG HOAI FOR LEAVE TO FILE
TO RESPOND OUT OF TIME TO
MOTION OF DEFENDANT TO AMEND THE
SUPPLEMENTAL PRE-
TRIAL ORDER (CJP) (ENTRY
DATE 08/13/91]
8/12/91 355 NOTICE oF FILING BY
PLAINTIFF THANH VONG HOAI OF COMPLIANCE
WITH
MAGISTRATE'S ORDER OF
8/1/91 (CUP) [ENTRY DATE
08/13/91]
8/12/91 356 RESPONSE BY PLAINTIFF THANH
VONG HOAI TO DEFENDANT'S
REQUEST FOR PRODUCTION OF
DOCUMENTS (AJR) [ENTRY DATE
08/13/91]
8/12/91 357 NOTICE OF FILING BY PLAINT-
IFF THANH VONG HOAI OF COPIES OF
DOCUMENTS NECES~-
SARY FOR A COMPREHENSIVE
EVALUATION OF PLAINTIFF'S
OPPOSITION TO SUMMARY JUDG-
MENT ON EXEMPLARY DAMAGES.
ATTACHMENT (AJR) [ENTRY
DATE 08/13/91] .
554
mn Jw
8/15/91 358 MOTION BY PLAINTIFF THANH
VONG HOAI FOR A JUDICIAL
ESTOPPEL AGAINST DEFEND- ANT'S
CHANGE OF POSITION
ON THE QUESTION OF VO'S PRESENCE IN
THE STATION, AND, UNDER FRCIVP 56(F)
FOR FURTHER DOCUMENT DIS-
COVERY INTERROGATORIES
AND TESTIMONY BY SUN PERSONNEL
EXHIBITS (5)
(AJR) (ENTRY DATE 08/16/
91)
8/16/91 359 RESPONSE BY DEFENDANT SUN
REFINING/MARKET IN OPPO-
SITION TO MOTION TO ADMIT
COMUTERIZED MONTHLY TOTALS
OF GASOLINE SOLE TO THE SUN
STATION [347-1] BY SUN RE-
FINING/MARKET (CPJ) [ENTRY
DATE 08/20/91]
8/20/91 360 RESPONSE BY DEFENDANT SUN
REFINING/MARKET IN OPPO;
SITION TO MOTION FOR A JUDICIAL
ESTOPPEL AGAINST
DEFENDANT'S CHANGE OF POSI-
TION ON THE QUESTION OF
vo'S PRESENCE IN THE STA- TION, AND,
UNDER FRCIVP 56(F) FOR FURTHER DOCU-
MENT
DISCOVERY, INTERROGATORIES
AND TESTIMONY BY SUN PER-
SONNEL [358-1] BY THANH VONG HOAI
(CIP) {ENTRY
DATE 008/21/91)
8/20/91 361 RESPONSE BY PLAINTIFF THANH
YONG HOAI IN OPPOSITION TO
MOTION FOR SUMMARY JUDGMENT
a
Ae J
Ww
-
i
ON THE LIMITATION OF DAMAGES
FROM 9/8/86 TO 4/17/91 P349-1) BY
SUN
REFINING/MARKET; ATTAHMENT
(CIP) [ENTRY DATE 08/21/91)
8/22/91 362 MOTION BY DEFENDANT SUN
REFINING/MARKET TO COMPEL
DISCOVERY-PRODUCTION OF
DOCUMENTS; ATTACHMENT (DOT)
[ENTRY DATE 08/23/91]
8/27/91 363 NOTICE OF FILING BY PLAINT-
IFF THANH VONG HOAI OF
STATEMENT OF GENUINE ISSUES
II FOR CONSIDERATION WITH
HIS OPPOSITION TO MOTION FOR SUMMARY
JUDGMENT BY
DEFENDANT FOR A LIMIT ON
COMPENSATORY DAMAGES (AJR)
(ENTRY DATE 09/03/91)
a=557
8/27/91 364 REPLY BY DEFENDANT SUN
REFINING/MARKET TO RESPONSE
TO MOTION FOR SUMMARY JUDG~
MENT ON THE LIMITATION OF
DAMAGES FROM 9/8/86 TO
4/27/87 [349-1] BY SUN
REFINING/MARKET (AJR) (ENTRY DATE
09/03/91)
8/30/91 369 RESPONSE BY PLAINTIFF THANH
YONG HOAI IN OPPOSITION TO
MOTION TO AMEND THE SUPPLE~-
MENTAL PRETRIAL ORDER [346- 1] BY SUN
REFINING/MARKET
(AJR) [ENTRY DATE 09/03/91]
9/3/91 365 ORDER BY JUDGE LOUIS F.
OBERDORFER: DENYING MOTION
FOR RECONSIDERATION OF THE
MAGISTRATE'S RULING WITH
c-
—
A
58
A
REGARD TO PLAINTIFF'S PROPOSED
EXPERT WITNESSES
(326-1) BY THANH VONG HOAI
(N) (MON)
9/3/91 366 ORDER BY JUDGE LOUIS F.
OBERDORFER: DENING MOTIN
FOR RECONSIDERATION OF THE
MAGISTRATE'S RULING WITH
REGARD TO PLAINTIFF'S MOTION TO
COMPEL ANSWERS
TO INTERROGATORIES [329-1} BY THANH
VONG HOAI (N) (MON)
9/3/91 367 ORDER BY JUDG LOUIS F.
OBERDORFER: DENYING MOTION FOR
RECONSIDERATION OF THE
MAGISTRATE'S RULING DENYING
PRODUCTION OF DOCIMENTS
FROM DEFENDANT [328-1] BY
THANH VONG HOAI (N) (MON)
9/3/91 368 ORDER BY JUDGE LOUIS F.
OBERDORFER: DIRECTING
PARTIES TO FILE NO FURTHER
MOTIONS PRIOR TO TRIAL
WITHOUT LEAVE OF THE COURT (N) (MON)
9/5/91 370 RESPONSE BY PLAINTIFF THANH
VONG HOAI MOTION TO COMPEL
DISCOVERY-PRODUCTION OF
DOCUMENTS [362-1] BY SUN
ui
REFINING/MARKET; ATTACH MENTS (5)
(CLV) [ENTRY DATE
09/06/91]
9/9/91 371 REQUEST BY PLAINTIFF THANH
YONG HOAI FOR AMENDMENTS
AND ALTERATIONS TO THE PRE-
TRIAL ORDER; (5 REQUESTS)
(CLV) (ENTRY DATE 09/10/91)
9/10/91 372 ORDER BY JUDGE LOUIS F.
OBERDORFER: SUMMARY JUDGMENT
HEARING SET FOR 1:45 9/16/91; (N) (MON)
9/10/91 373 TRANSCRIPT OF PROCEEDINGS
FILED FOR DATE OF 6/12/91
|
| REPOTER: TT. DOURIAN (CLV)
(ENTRY DATE 09/11/91}
9/10/91 374 TRANSCRIPT OF PROCEEDINGS
FILED FOR DATE OF 6/24/91
REPORTER: T. DOURIAN (CLV)
(ENTRY DATE 09/11/91)
9/13/91 375 MOTION BY PLAINTIFF THANH
VONG HOAI FOR LEAVE TO
FILE MOTION FOR THE ADDI-
TION OF A WITNESS EXHIBIT
(MOTION) (SJP) {ENTRY DATE
09/18/91)
Paneer ens
9/16/91 --- PRE-TRIAL CONFERENCE BEFORE
JUDGE LOUIS F.OBERDORFER
REPORTER: TT. DOURIAN (CLV)
( ENTRY DATE/ 09/18/91)
9/16/91 376 MEMORANDUM AND ORDER BY
JUDGE LOUIS F. OBERDORFER
GRANTING MOTION OF DEFEND- ANT ON
LIMITATION OF DAMAGES; (N) (CLV)
(ENTRY DATE 09/18/91)
9/16/91 377 ORDER BY JUDGE LOUIS F.
OBERDORFER: GRANTING MOTION
OF DEFENDANT TO COMPEL PRO-
DUCTION OF TAX RETURNS ;
DIRECTING PLAINTIFF TO PRO~
VIDE CERTAIN DOCUMENTS AND
TO SIGN INFORMATIN AUTHORI-
ZATION FORMS BY 9/20/91;
DIRECTING DEFENSE COUNSEL
TO USE DOCUMENTS ONLY FOR
562
awezwr)V
————————————=x———— ii“ |
TRIAL IN THIS CASE; (N)
(ENTRY DATE 09/18/91]
OBERDORFER: DENYING MOTION
FOR A JUDICIAL ESTOPPEL
AGAINST DEFENDANT'S CHANGE
ON THE QUESTION
OF VO'S PRESENCE IN THE
STATION, AND, UNDER FRCIVP
FURTHER DOCUMENT
DISCOVERY, INTERROGATORIES
AND TESTIMONY BY SUN PESON-
NEL [358-1] BY THANH VONG
HOAI; DENYING PLAINTIFF'S
FIRST, SECOND, FOURTH AND
FIFTH REQUESTS TO AMEND
COURT'S PRETRIAL ORDER;
GRANTING IN PART AND DENY-
PLAINTIFF'S
THIRD REQUEST TO AMEND
(CLV)
9/24/91 378 ORDER BY JUDGE LOUIS F.
OF POSITION
56(F) FOR
ING IN PART
COURT'S PRETRIAL ORDER;
RETAINING UNDER ADVISEMENT
DEFENDANTS' SUMMARY JUDG-
MENT MOTION ON THE ISSUE OF
EXEMPLARY DAMAGES;
FOR TRIAL DEFEND-
ANT'S MOTION TO ADMIT COM-
PUTERIZED RECORDS; GRANTING
PLAINTIFF'S ORAL MOTION TO
PETTAWAY TO
WITNESS LIST; GRANTING
DEFENDANTS' MOTION TO ADD
MANU VAKHARIA TO WITNESS
LIST. (N) (MON)
PLAINTIFF THANH VONG HOAI
FOR THE ADDITION OF A WIT-
NESS, RICHARD K. AGNEW TO
BE ADDED TO THE LIST OF
WITNESSES, ATTACHMENT (CLV)
A-564
RESERVING
ADMIT PERCY
9/24/91 379 ENTERED IN ERROR MOTION BY
(ENTRY DATE 09/27/91) (EDIT
DATE 09/27/91}
9/24/91 380 NOTICE TO TAKE DEPOSITION
BY PLAINTIFF THANH VONG HOAI OF MAN-
HARLAL VAKHARIA
ON 9/27/92 (CLV) [ENTRY
DATE 09/27/91)
9/24/91 381 MOTION BY PLAINTIFF THANH
VONG HOAI FOR LEAVE TO FILE
ADD WITNESS,
MOTION TO
EXHIBIT (MOTION) (CLV)
(ENTRY DATE 09/27/91)
— |
GENERAL DOCKET
UNITED STATES COURT OF APPEALS
FOR THE
DISTRICT OF COLUMBIA
90-7170 [STAMP]
APPEAL FROM THE DISTRICT COURT
Bin # 26,4
Briefs Sent: 4-9-91
Thanh Vong Hoai, et al.,
Appellant
Thanh Van Vo, et al.
Popular Name: [blank]
Number of Case/Order Below: 89-02397
Case Type: CV US.
JS-34 Yes
Judge Below: Oberdorfer 9053
Date of Judg./Order: 10-02-90 (EOD 10-4-
90)
USDC Offense/Nature of Suit Code: 3440
Date Docketed: 11/19/90
Notice of Appeal Filed: 11-01-90
-l-
4-566
U.S. Mag:
FINANCIAL
USDC
COUNSEL: APPELLANT/PETITIONER TYPE
John D. Hemenway 202/244-4819 1453
4816 Rodman St., N.W. EC
Washington, D.c. 20016
Laurence A, Elgin 703/425-7879
8929 Sleaford Place
Annandale, VA 22003
COUNSEL: APPELLEE/RESPONDENT TYPE
Robert J. Pleshaw EC
Law Office of Robert J. Pleshaw
1510 H St., NW #400
Washington, pc 20005
202/393-8100
Sun Refining & Marketing Co.,
J. Gordon Forester, Jr., Geoffrey
W & s i 3683
J. Gordon Forester, Jr. 452-1400
Greenstein DeLorme & Luchs,P.c.
1620 L St. NW, Suite 900
Washington, pc 20036
Jones, Day, Reavis & Pogue;
Millard F, Ottman, David c.
Roseman
Francis x. Markey 202-879-3939 2311
Jones, Day, Reavis & Pogue
1450 G St. ,
Washington DC 20005-2088
(by hand: Brian P. Maschler -
Pro Hac Vice
ADDITIONAL COUNSEL FOR SUN REFINING
Stephen H. Abrams (202) 452-1400
= 2 «
A=567
same address ans [sic] J. Gordon Forester,
JY.
DATE FILINGS-PROCEEDINGS
(J) 11-19-90 Copy of notice of appeal
and docket entries from
Clerk, USDC (n=-4)
(J) 11-19-90 Order 86-6: Initial submis-
sion and procedural motions
due 12-18-90; dispositive
motions due on 1-02090.
Docketing statement was
mailed to counsel.
(J)11-19-90 Docketing fee paid in Dis-
trict Court on 11-1-90.
(V) 11-30-90 2-Appellants' docketing
statement - (m-21) [15]
(V) 11-30-90 Letter from appellees'
counsel objecting to appel-
lant's docketing statement
- (m-30) [15]
(V) 11-28-90 2-Appellees' (Sun Refining &
Marketing Co., J. Gordon
Forester, Jr., Geoffrey
o3-
n-568
|
Wagner & Joseph Zulli) cer-
tificate as to Parties,
etc. - (m27) [15]
(V) 12-13-90 1-Praecipe from attorney
Stephen H. Abraham advising
of change of address - (15)
(V) 12-18-90 2-Appellants' initial submis-
Sion - (m-18)[15) Def Apx N
(V) 01-04-91 2-Appellants' Supplement to
the statement of the issues
to be raised on appeal -
(m-03) [15]
(S) 01-10-91 Clerk's Order, sua sponte,
that this case is scheduled
for oral argument on
05/13/91 at 9:30 a.m. be-
fore Circuit Judges Ed-
wards, Buckley ana
Randolph. The following
schedule shall apply: Ap-
pellants' Brief ¢ Appendix
-02/13/91; Appellees' Brier
-4-
a=569
- 03/29/91; Appellants'
Reply-05/13/91.
(S)O01/10/91 Clerk's Order- sua sponte
that this case is scheduled
for oral argument on
05/13/91 at 9:30 a.m. be-
fore Circuit Judges Ed-
wards, Buckley and
Randolph. The following
schedule shall apply: Ap-
pellants' Brief & Appendix
-02/27/91; Appellees Brief-
03/29/91; Appellants Reply-
04/12/91.
(H)02/05/91 5-Appellant's revised and
consolidated statement of
the issues to be raised on
appeal. (m-26).
(H)02/27/91 15-APPELLANT'S BRIEF (m-
27) (BIN: }
(H)02/27/91 7-JOINT APPENDIX (VOL I).
(H) 02/27/91 7-JOINT APPENDIX (VOL II.
a a 5 “4
- 4-570
(H) 02/27/91 7-JOINT APPENDIX (VOL III).
(V) 03-28-91 15-APPELLEES' (Sun Refining
& Marketing Co., J. Gordon
Forester, Jr., Jeffrey
(sic) Wagner ¢& Joseph
Zulli) BRIEF - (m-28)
03-29-91 APPELLEES' (Jones Day Reavis
& Pogue, Millard F. Ottman,
Jr., & David c. Roseman)
BRIEF - (m=-29)
(V) 04-01-91 7-JOINT APPENDIX - Volume
IV: Statutes and
Regulations (m-29)
(V) 04-01-91 15-ERRATA TO APPELLANT'S
BRIEF - (M-28)
(M) 04-12-91 15-APPELLANTS ' REPLY BRIEF
(to Appellees Jones, Day,
etc. brief) (m-12) [25] LODGED
(M) 04-12-91 15-APPELLANTS' REPLY BRIEF
(to Appellees' Sunoco, etc.
brief) (M-12) (8) LODGED
(M)04-17-91 5-Appellants' motion to file
extra reply brief of 20
pages to reply to second
opposition by appellees (m-
17) [8]
(M)04-17-91 S5-Appellee's (Thanh Van Vo)
notification that he will
not file a brief or present
oral argument [11]
(Z)04-24-91 Clerk's order that the fol-
lowing times are allotted
for oral argument: Appel-
lant - 15 minutes and Ap-
pellees - 15 minutes. Form
72 due May 1, 1991.
*(N) 4-19-91 Per Curiam Order tha [sic]
teh [({sic] motion to file
extra reply brief of 20
pages to reply to second
opposition by appellees is
denied. The Clerk is
directed to return the
lodged brief.
(N) 04/25/91 1-CERTIFICATE oF SERVICE
(SUPPLEMENT)
(Z) 4/29/91 Per Curiam order that ap
pellants' motion in the
nature of a Petition for
Mandamus to the Clerk, or
in the alternative, for
reconsideration pursuant to
Local Rule 7(g9)(3) be
denied.
(H) 05/06/91 S~Appellee's motion for
leave to present additional
oral argument (m-06-[8].
(M) 05-07-91 5-Appellants' Opposition to
appellees' motion for leave
to present additional oral
argument (m-7) [8]
(N)05-09-91 Per Curiam Order that appel-
lees' motion for leave to
present additional oral
argument and the opposition
thereto, it is Ordered that
the motion is granted and
two counsel may present
argument for the appel-
lees'.
(M)05-13-91 5-Appellant's notice of new
related case [No. 9l-
7070) (p-10) [8]
(M)05-13-91 5-Appellant's mtoion [sic] to
supplement appendix (p-10)
(8)
(M) 05-13-91 15-SUPPLEMENTAL INDEX (VOL V)
(p-10) [8] LODGED
(Z)05-13-91 ARGUED before Edwards, Buck-
ley and Randolph, Cjs. On
motion of J. Gordon Forest-
er, Jr., Brian P. Maschler,
a member of the Supreme
Court of California, was
allowed to argue pro hac
» @ «
A=574
ae |
vice for appellees, Jones,
Day, Reavis & Pogue, et al.
(M) 05-15-9) S-Letter from counse] for ap-
Pellant pursuant to FRAP
28(3) advising of addi-
tional authority (m-15)
(25)
(Z) 5-16-91 Per Curiam order that Appel-
lants' motion to supplement
appendix is denied and the
Clerk is directed to return
the lodged supplemental ap-
pendix. HTE, JLB, ARR 7
(M) 05-17-91 5-Appellee's (Sun Refin-
ing) motion for leave to
file a post argument brief
on jurisdiction (m-17) (8)
(M) 05-17-91 APPELLEE'S SUPPLEMENTAL
BRIEF (m-17) [8] LODGED
(Z) 5-28-91 Per Curiam order that the
motion of Appellees for
leave to file a post argu-
- 10 -
a@575
(M) 05-28-91
(H) 06=06-91
(H) 06-07-91
(cb) 6-11-91
(cb) 6-11-91
(cb) 6-11-91
ment brief on jurisdiction
be denied. The Clerk is
directed to return the
lodged brief to counsel.
5-Appellants' response to mo-
tion for leave to file ad-
ditional brief (m-28) [8]
4-Transcript of Oral
Argument [25]
5-Appellant's emergency mo-
tion for expedition and
stay (p-07) [8].
Per Curiam Order for the
Court that the motion for
expedition and stay is
denied; Edwards, Buckley
and Randolph, CJs.
Opinion for the Court filed
by Circuit Judge Edwards.
Judgment for the Court that
-ll-
A=-576
ree eee
(cb) 6-11-91
(M) 06-17-91
(M) 06-26-91
(M) 07-01-91
(D) 07-11-91
(D) 08-06-91
the judgment of the
District Court appealed
from in this caused (sic]
is hereby affirmed, in ac-
cordance with the Opinion
for the Court filed herein
this date.
Mandate Order
S-Appellees' (Sun Refining
et al.) bill of costs (m-17)
(9)
5~Appellees' (Tones, Day et
al) bill of costs (m-25) [9]
S~-Appellants' Opposition to
appellees' (Sun Refining
etc.) bill of costs (m-1)
(9)
20-Appellants' Petition for
Rehearing En Banc (m-11) [1]
Per Curiam Order: Appell-
ants' suggestion for
rehearing en banc has been
(H) 08-13-91
(H) 08/13/91
(H) 09/26/91
circulated to the full
court. No member of the
court has requested the
taking of a vote. The sug-
gestion is denied. (Mikva,
Wald, Edwards, R.B. Gins-
burg, Silberman, Buckley,
Williams, D.H. Ginsburg,
Sentelle, Thomas, Henderson
& Randolph, CJs) (by Clerk)
5-Appellee's (Sun Refining)
motion for attorney's fees
(m-13) [1].
5-Appellant's response to
motion for attorney's fees
(m-23) [1)
Per Curiam Order that appel-
lee's motion for attorney's
fees is denied (Edwards,
Buckley and Randolph, Cir-
cuit Judges).
- 13 -
A=576
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