# Appendix — Thanh Vong Hoai v. Thanh Van Vo > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0218%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1992 - **Citation:** 503 U.S. 967 ## Text No. IN THE SUPREME COURT OF THE UNITED STATES October Term, 1991 THANH VONG HOAI, JOHN D. HEMENWAY, DAVID HEMENWAY Petitioners, THANH VAN VO, MILLARD F. OTTMAN, DAVID C. ROSEMAN, JONES, DAY, REAVIS & POGUE, J. GORDON FORESTER, JR., GEOFFREY WAGNER, JOSEPH ZULLI, SUN REFINING & MARKETING COMPANY, INC. Respondents. Appendix 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 » ! > “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. ! ~ t 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- 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 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. 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0218%3A4. Public record. Not legal advice.