Petition for Writ of Certiorari — Webber v. Gulf Oil Corp.

jj Pupreme Gay)

—_

@FFIBE QF THE CLERK

In the Supreme Court

OF THE

United States

OCTOBER TERM, 1991

STEVEN WEBBER, MARK BALL,

BRAD May, NAZIER MAZAREI

and ARAM SHISHMANIAN,

Petitioners,

VS.

GULF OIL CORPORATION, THRIFTY OIL Co.

and CHEVRON U.S.A., INC.,

Respondents.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

KENNETH P. ROBERTS

9850 Canoga Avenue

Suite 206

Woodland Hills, CA 91367

(818) 888-3553

Attorneys for Petitioners

QUESTIONS PRESENTED

1. Did the Ninth Cireuit Court of Appeal err by dis-

missing an appeal which was properly taken from a

interlocutory order which resulted in the denial of prelim-

inary injunctive relief. This action by the Ninth Circuit

Court of Appeal has “so far departed from the accepted

and usual course of judicial proceedings as to eall for an

exercise of this Court’s power of supervision.”

2. Does a docketing statement which contains all of

the information required by Federal Rules of Appellate

Procedure, Rule 3(c) constitute a valid notice of appeal.

What documents will be accepted as a valid notice of

appeal is a question of federal law which has not been, but

should be settled by this Court.

3. Has the Ninth Circuit Court of Appeal has adopted

a constitutionally invalid standard with respect to the

acceptability of a docketing statement as a notice of

appeal under Rule 3, Federal Rules of Appellate Proce-

dure, which standard grants access to the judicial process

to indigents, while denying access to judicial review for

those who are not indigent. Such discriminatory classifi-

cation, resulting in denial of justice to citizens who have

the means to retain legal counsel, is a denial of equal

protection and due process of law.

ll

TABLE OF CONTENTS

QUESTIONS Pewee Wie ec an ses cn es honed as

Soe yp Ut tb iy) ee ewe rere were eer ae

OPT NMING Gilee o5 60 a eee era Fe eae a ee

FURR Cres 0s ca en aG a ee we aha

STATUTORY PROVISIONS INVOLVED ........

STAT eer Cie CO ake oa oes es bas A ew ecw ks

A. Fetal Te ns oe oe ee oes

B. Preeedasel Semeeey . oc ees cscsk cs csun den

REASONS FOR GRANTING WRIT OF

egy tt eee eres ort rere eee ee

A.

The Ninth Cireuit Court of Appeal erred by

dismissing an appeal which was_ properly

taken from a interlocutor order which resulted

in the denial of preliminary injunctive relief.

This action has “so far departed from the

accepted and usual course of judicial proceed-

ings as to call for an exercise of this Court’s

power of SUPGFVIGIORS o4 6c ca wie ese edce'ns ts

The docketing statement which contains all of

the information required by Federal Rules of

Appellate Procedure, Rule 3(¢c) should have

been accepted as a notice of appeal. What

documents will be accepted as a valid notice of

appeal is a question of federal law which has

not been, but should be settled by this Court

—-.

hh

—

to

12

16

1]

TABLE OF CONTENTS

C. The 9th Cireuit has adopted a constitutionally

invalid standard with respect to the accepta-

bility of a docketing statement as a notice of

appeal under Rule 3, which standard grants

access to the judicial process to indigents,

while denying access to judicial review for

those who are not indigent. Such discrimina-

tion resulting in denial of justice to citizens

who have the means to retain legal counsel is a

denial of equal protection and due process of

Pe ee ee oe eee en

Page

iv

TABLE OF AUTHORITIES

Cases

Page

Abadjian et al. v. Gulf Oil Corporation, et al., 602

eo Me Be ee ee ere ee 4,8

Bsales v. Texico, Inc., 516 Fed.Sup. 655 (D.N.J.

Ee ies ce dO aCR ee iS bans Wale bey a Klean os 2

Donovan v. Esso Shipping Co., 259 F.2d 65 (3d

Cir. 1958) Cert. denied 359 U.S. 907, 79 S.Ct.

RS rr ee ee ee eee ee 17

Fassett v. Delta Kappa Epsilon, 807 F.2d 1150 (3d

OS rs ee eres me a eee ee 16

Gardner v. Westinghouse Broadcasting Co., 437

U.S. 478, 98 S.Ct. 241, 57 L.Ed.2d 364 (1978) 15

General Electric Co. v. Marvelle Rare Metals Co.,

278 U.S. 4380, 53 S.Ct. 202, 77 L.Ed. 408 (1932) 15

Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100

MR | per eee er ore Terr 19

Harper v. Virgima Bd. of Elections, 383 U.S. 663,

86 S.Ct. 1079, 16 L.Ed.2d 169 (1966) ......... 19

Hotel and Rest. Emp., et al. v. Rollison, 615 F.2d

Fee See Se ROE oe blew tee ceeetakebeaws 14

Knight v. Brown Transport Corp., 806 F.2d 479

Cee Se Se ate eke Oak W ne Vase eeu aeks sas 16

Lubin v. Parish, 415 U.S. 709, 94 S.Ct. 1315, 39

L.Ed.2d 702 (1974) .......... ere ree 19

Munden v. Ultra-Alaska Associates, 849 F.2d 383

Ses es I ae vce kn cheesy ShE sak eke 17, 18, 19

Presiano v. Hoffman-LaRoche, Inc., 726 F.2d 105

Se ae EE bn cokes a ka eee eeeek eee ann 15

Tagupa v. East West Center, Inc., 640 F.2d 1127

Pee a PE oy oak 6 oe eek eae ee 14

TABLE OF AUTHORITIES

CASES

Page

Thermatron Products, Inc. v. Hermansdorfer, 423

Chee, Qe ROD nk oy oa eos nea aie eee ea 9

Union Oil Company of California v. O'Riley, 226

Cal.App.3d 199, 276 Cal.Rptr. 483 (1990) ..... )

Miscellaneous

S.Rep. No. 731, 95th Congress, 2nd Sess. 15,

reprinted in 1978 U.S. Code Cong. & Ad. News

DUR «5. sa.5-W eno are bee ORE la eee eee ]

Rules

Federal Rules of Appellate Procedure

RW sb es ceo er en ere ee ee eee 4

eR et le ee 1, 4,5, 12, 16, 17, 18, 19, 20

ee tt or es ee ee ee oe 15,16

United States Supreme Court Rules

Pee WC ci en eie setae hee 5

Pee SCN i ie cde heh ne ee ee IG 5

Statutes

United States Code, Title 15

Ok ee 06 cca os ce en neS aren Lae ]

sec. 2602(b) (2) (E) (ii) (1)... 2. oe ec 6

LS ee er ee ee ra 12

United States Code, Title 28

OR, SEs 04 oh i0 5 82s bie On 13

BOG. ROMEUOIUE? shcuacsadccnueass.s eee

eee

In the Supreme Court

OF THE

United States

OCTOBER TERM, 1991

STEVEN WEBBER, MARK BALL,

BrRaD May, NAZIER MAZAREI

and ARAM SHISHMANIAN,

Petitioners,

Vs.

GULF OIL CORPORATION, THRIFTY OIL Co.

and CHEVRON U.S.A., INC.,

Respondents.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Petitioners, Steven Webber, Mark Ball, Brad May,

Nazier Mazarei and Aram Shishmanian, respectfully peti-

tion this court for Issuance of its Writ or Certiorari,

INTRODUCTION

This action involves the Petroleum Marketing Practices

Act, 15 U.S.C. § 2801 et seq. (the “PMPA”). The PMPA

was enacted June 19, 1978, to establish “‘minimum Fea-

eral standards governing the termination and non-re-

newal of franchise relationships for the sale of motor fuel

by the franchisor or supplier of fuel.” S.Rep. No. 731,

95th Congress, 2nd Sess. 15, reprinted in 1978 U.S. Code

Cong. & Ad. News 873. Congress was concerned “with

the disparity of bargaining power between distributors

i )

and retailers of motor fuel. With this remedial purpose in

mind, Congress sought to limit the circumstances in

which a distributor could terminate a franchise relation-

ship with the retailer.” Bsales v. Texico, Inc. 516 Fed.Sup.

655, 661 (D.N.J. 1981).

This action arises out of events which occurred in 1980

and 1981 as a consequence of which Petitioners asserted

that they should have be granted a statutorily provided

right of first refusal to purchase their service station

premises. The legal action to enforce their rights was

first commenced in the Superior Court of the State of

California, County of Los Angeles, in 1981.

After many years of litigation and multiple appellate

proceedings in the California Court of Appeal, Ninth

Cireuit Court of Appeals, including Petitions for Writ of

Certiorari to both the United States and California Su-

preme Courts on different issues, one trial judge inti-

mately familiar with the proceedings in this action

commented, during oral argument:

“They [Gulf] sold you [Thrifty] the stations only on

the condition that they could beat the PMPA with

regard to the dealers, didn’t they?

* * ~

It was up to Thrifty to try to beat the dealers out of

their rights, and if Thrifty succeeded in beating the

dealers out of their rights, then of course you guys

[Gulf] would convey. Wasn't that the cynical deal

you hatched up?

* * a

Goodness gracious. It’s as plain as the nose on your

face that these dealers have the right of first refusal.

I don’t understand six or seven years of horsing

around, and 20 volumes of files on that issue, other

than that Thrifty has just made a very earnest at-

tempt to beat them out of their rights under the

PMPA. And Gulf couldn't care less one way or the

other.

* = ad

Congress enacted these comprehensive statutes, and

then the drafting gets a little sloppy, and then big

holes are driven into these statutes by lawyers. And

then the rights created by federal law, you know,

really don’t get enforced, as they get enforced only at

tremendous expense to those seeking to enforce their

rights. And that is exactly what we got here.

This is a case I could write a novel about.

« * *

I could write a novel about this case as an instance of

legal oppression. I really could.”’

This petition for Writ of Certiorari is required as a

consequence of the Ninth Cireuit Court of Appeals deter-

mination to dismiss an appeal from an adverse ruling by

the United States District Court. Petitioners appeal of

the adverse decision of the District Court was dismissed

as a consequence of legal error of the Ninth Cireuit Court

of Appeal. This error has resulted in substantial injustice

to Petitioners who have, since 1981, against enormous

odds, vigorously litigated to enforce the federal statutes

enacted for their protection.

The issues presented by this petition are:

1. The Ninth Cireuit Court of Appeal erred by

dismissing an appeal which was properly taken from

a interlocutory order which resulted in the denial of

preliminary injunctive relief. This action by the

Ninth Cireuit Court of Appeal has “so far departed

from the accepted and usual course of judicial pro-

ceedings as to call for an exercise of this Court's

power of supervision.”

2. The docketing statement which contains all of

the information required by Federal Rules of Appel-

late Procedure, Rule 3(¢c) should have been accepted

as a notice of appeal. What documents will be aec-

cepted as a valid notice of appeal is a question of

federal law which has not been, but should be settled

by this Court.

3. The Ninth Cireuit Court of Appeal has adopted

a constitutionally invalid standard with respect to

the acceptability of a docketing statement as a notice

of appeal under Rule 3, Federal Rules of Appellate

Procedure, which standard grants access to the judi-

cial process to indigents, while denying access to

judicial review for those who are not indigent. Such

discriminatory classification, resulting in denial of

justice to citizens who have the means to retain legal

eounsel, is a denial of equal protection and due

process of law.

OPINIONS BELOW

The published opinion of the District Court, during

remand proceedings is found in the decision entitled

Abadjian, et al. v. Gulf Oil Corporation, et al., 602 F.Supp.

&74 (C.D. Cal. 1984).

The following orders or opinions are reproduced in the

Appendix to this brief:

1. The order of the United States District Court,

Central District of California, dismissing the action

in 1988.

2. The opinion of the United States Ninth Circuit

Court of Appeal dismissing the appeal.

3. The order of the Ninth Cireuit Court of Appeal

denying motions for reconsideration and modifica-

tion, entered January 27, 1992.

JURISDICTION

Jurisdiction for review of the issues outlined in the

Introduction to this brief exists pursuant to United

States Supreme Court Rules, Rule 10.1(a) and 10.1(c).

STATUTORY PROVISIONS INVOLVED

The underlying action involves the statutory provisions

of the PMPA, 15 United States Code Section 2801-2806.

This Petition involves application and interpretation of

the provisions of:

1. 28 U.S.C. §1292(a)(1) which authorizes an

appeal directly from an interlocutory order dis-

missing a complaint wherein the primary relief

sought was injunctive relief.

2. Federal Rules of Appellate Procedure, Rule

3(c) which governs contents of notice of appeal.

STATEMENT OF CASE

A. Factual Summary.

In early 1979, having concluded that business was not

profitable in Southern California, Gulf Oil Corporation

(hereafter “Gulf’) announced a plan to sell its Los

Angeles Division assets. Shortly thereafter, Thrifty Oil

Co. (hereafter “Thrifty’) advised Gulf of its interest in

6

purehasing Gulf’s Southern California service stations

and by contract dated September 30, 1980, Gulf agreed to

sell, and Thrifty agreed to purchase all of Gulf’s Los

Angeles division service stations. When Gulf entered into

the September 30, 1980 agreement with Thrifty, each

Petitioner occupied and operated a Gulf service station

pursuant to a petroleum franchise governed by the

PMPA, which included a lease agreement and gasoline

supply agreement between each petitioner and Gulf.

In contemplation of the sale and pursuant to the Sep-

tember 30, 1980 letter agreement, Gulf prepared sched-

ules identifying dealers to whom a right of first refusal

was required to be given under governing provisions of

the PMPA. Gulf’s “List Number 1” identified the Gulf

dealers who entered into lease and supply agreements

with Gulf after enactment of the PMPA as being those to

whom “Gulf must prepare a 90 day notice and offer” of

first refusal under the PMPA as required by 15 U.S.C.

§ 2802 (b) (2) (E) (iii) (1). All four Petitioners were iden-

tified in Gulf’s “List Number 1”.

After preparing the list, Gulf mailed to each Petitioner

a form letter dated November 24, 1980. That letter

informed each Petitioner that Gulf had agreed to sale its

service stations to Thrifty and that, as a Gulf dealer, they

would receive a right of first refusal if their service

stations were included in the sale.

Rights of first refusal were offered to several Gulf

service station dealers. After Thrifty learned that certain

of the service stations were purchased by Gulf dealers

and resold to a competitor of Thrifty, Thrifty objected to

the extension of additional rights of first refusal, ineclud-

ing the granting to each petitioner of their statutorily

provide a right of first refusal. As a result of Thrifty’s

complaint, Gulf thereafter refused to offer to these Peti-

tioners the statutorily required right of first refusal.

B. Procedural Summary.

In 1981, as a consequence of Gulf and Thrifty’s refusal

to comply with the PMPA, these Petitioners, in conjunc-

tion with nine other co-plaintiffs, filed legal action in the

Los Angeles Superior Court for the County of Los Ange-

les, State of California. In their complaint, Petitioners

asserted that the determination made by Gulf to with-

draw from the marketing of petroleum products in South-

ern California, combined with the executed agreement

dated September 30, 1980 with Thrifty, to sell Gulf's

interest in their service station premises, constituted an

unlawful market withdrawal in violation of Petitioners’

rights under the PMPA. In its answer to the complaint,

Gulf admitted “that Gulf in 1978 implemented a program

for the withdrawal of its national logo and the termina-

tion of branded operations in Southern California.”

Both Gulf and Thrifty filed cross-complaints against

each other. Gulf cross-complained against Thrifty and

each Petitioner and interpled the properties. Gulf asked

the court to declare whether Petitioners or Thrifty should

receive the service station properties. Thrifty filed a

cross-complaint against Gulf for claimed breach of con-

tract for Gulf’s failure to transfer to Thrifty the service

station properties occupied by each Petitioner.

On September 10, 1981, Gulf, pursuant to a joint

petition filed with Thrifty, removed the State Court pro-

ceeding to the Federal District Court, Central District of

California. Upon motion by the Petitioners, the action

was remanded to the State Court on the ground that there

did not exist a separate and independent controversy and

the jurisdiction of the action properly was in the Superior

Court for the County of Los Angeles, State of California.

Thereafter the action proceeded in the State Court.

When plaintiffs moved for summary adjudications of

issues regarding the PMPA, Gulf and Thrifty filed their

second petition for removal to the United States District

Court, Central District of California. Petitioners again

moved to remand the action, which motion was granted

and the Honorable Terry J. Hatter, Jr., issued a pub-

lished opinion. Doing so, Judge Hatter concluded:

“Under PMPA, a franchisor’s withdrawal from a

relevant geographic market can amount to a termina-

tion or a non-renewal of the franchise agreement that

triggers both notice and first refusal rights for

franchisors. See 15 U.S.C. § 2802(b)(2)(E). The

undisputed facts indicate that Gulf intended to sale

of its assets in the Los Angeles division and to

withdrawal from the highly competitive Southern

California gasoline market. The subsequent actions

taken to sell plaintiffs’ leased premises in Santa Fe

Springs and the Santa Fe Springs refinery are inci-

dental to Gulf’s stated purpose: market withdrawal.

For this court to find that the ‘packaged’ deal involv-

ing Thrifty amounted to an assignment of the

‘franchise relationship’ and not a market withdrawal,

would result in a complete circumvention of the act

(PMPA). Thus, it is my determined view that

Thrifty cannot hold the same status as the franchisor

to plaintiffs held by Gulf. At most, Thrifty may have

an assignment under the leased premises under state

law if Gulf complied with PMPA in the first in-

stanee.” (Abadyjian, et al. v. Gulf Oil Corporation, et

al., 602 F.Supp 874, 881 (C.D. Cal. 1984)

’

9

Gulf and Thrifty appealed the order of remand. That

appeal was dismissed with the Court of Appeal holding

that the order of remand was a nonappealable decision

under Thermatron Products, Inc. v. Hermansdorfer, 423

U.S. 333, 346 (1975).

Thereafter, the action was remanded to the Los Ange-

les Superior Court. After remand, Petitioners again

moved the court for its order granting summary adjudica-

tion of issues. Said motion was granted in favor of the

Petitioners with the court finding that each Petitioner

was entitled to receive a right of first refusal under the

PMPA.

Gulf and Thrifty filed an appeal to the California Court

of Appeal. On appeal, the California Court of Appeal

reversed the judgment finding and holding that, notwith-

standing the two previous remands or orders issued by

Judge Hatter, that the Los Angeles Superior Court did

not have jurisdiction to adjudicate the controversy and

that the federal courts had exclusive jurisdiction over the

controversy. The decision of the Court of Appeal was not

published. In a subsequent published opinion, Union Oil

Company of California v. O’Riley, 226 Cal.App.3d 199, 276

Cal.Rptr. 483 (1990) the same Circuit of the California

Court of Appeal determined, consist with applicable and

controlling law, that indeed concurrent jurisdiction ex-

isted. Unfortunately, this same argument had been re-

jected when previously advanced by these Petitioners,

and it was too late for these Petitioners to avail them-

selves of the affect of the published decision which would

have upheld the trial court determination.

Petitioners filed petitions for certiorari to both the

California Supreme Court and the United Supreme Court

as to this exclusivity of jurisdiction issue, both of which

10

petitions were denied, in each instance with one justice

voting to grant hearing.

On December 20, 1988, the instant action was again

filed, in the United States District Court, Central District

of California. Petitioners reasserted and realleged the

same causes of action and the same events upon which

Petitioners had previously obtained judgment in the

State Court. As in the prior action, Gulf cross claimed

and interpled the properties and Thrifty cross-claimed for

breach of contract.

On May 17, 1989, Petitioners filed and moved the court

for an order granting summary adjudication of issue. At

the hearing upon the motion of Petitioners, the court, in

an unexpected turnabout from its prior published deci-

sion, announced its intention and thereafter proceeded,

on its own motion, sua sponte, to dismiss petitioners

complaint, with prejudice, concluding that Petitioners

had no right of first refusal and that there was no

termination of franchise and accordingly no justiciable

controversy. Petitioners did not receive prior notice of

the court’s intent to dismiss. Concurrent with the order

dismissing petitioners complaint, the court also issued an

order dismissing, with prejudice, each of the cross-claims

of Gulf and Thrifty.

Petitioners moved for reconsideration of the order

dismissing their claim. Substantially concurrent there-

with, Gulf and Thrifty each filed motions for reconsidera-

tion and modification of the order dismissing their cross-

complaints. Gulf urged the district court to reverse itself

and retain jurisdiction over the dispute between Gulf and

Thrifty. Thrifty urged the district court to modify its

order to provide that dismissal of the cross-complaints

was without prejudice so that Gulf and Thrifty could

thereafter litigate their dispute in the state court.

1]

Petitioners motion for reconsideration was denied with-

out hearing on September 18, 1989. On October 16, 1989,

while the motions of Gulf and Thrift were pending,

petitioners filed their notice of appeal. At the time of

their notice of appeal, a final judgment had not been

entered as to the entire action. Final judgment was

entered on November 13, 1989. On December 5, 1989,

Petitioners filed their docketing statement. The docket-

ing statement contained the following relevant provisions:

1. Identification of appellants.

9 (Clear and concise statement of intention to

appeal.

3. Identification of the order appealed.

4. Name of the court to which the appeal was

taken.

5. Identification of the issues to be argued on

appeal.

6. Summary of the trial court proceedings.

Thereafter, Petitioners, Gulf and Thrifty each prepared

and filed all appellate briefs. The matter was then

submitted to the Ninth Cireuit Court of Appeal. While

under consideration, the Ninth Circuit Court of Appeal

issued its inquiry with respect to the date of denial of

Thrifty’s motions for reconsideration and modification.

Substantially concurrent with responding to this inquiry,

Thrifty moved the Ninth Cireuit Court of Appeal for its

order dismissing petitioners appeal arguing that the no-

tice of appeal was prematurely filed prior to entry of final

judgment and that the appeal must be dismissed.

In response to Thrifty’s motion to dismiss appeal,

Petitioners pointed out: (1) that the appeal was a valid

OE EEEooeeoooeermmrmrmre

12

appeal of an interlocutory order denying injunctive relief

prior to final entry of final judgment, which appeal was

permissible pursuant to 28 U.S.C. § 1292(a)(1) ........,

and (2) the Petitioners’ docketing statement filed Decem-

ber 5, 1989 was sufficient to constitute a notice of appeal

under the provisions of Federal Rules of appellate proce-

dure Rule 3(c).

The Ninth Cireuit Court of Appeal, without hearing or

oral argument, dismissed Petitioners appeal concluding

that the notice of appeal filed October 16, 1992, was

premature, and that although the docketing statement

would, under Ninth Cireuit decisional law, constitute a

valid notice of appeal if petitioners were indigent parties,

because petitioners were represented by counsel, the

docketing statement would not be accepted as a notice of

appeal.

Motions for modification and reconsideration of the

determination of the Ninth Cireuit Court of Appeal were

filed on December 3, 1990. More than one year later, on

January 27, 1992, the motions for reconsideration were

each denied.

REASONS FOR GRANTING WRIT OF CERTIORARI

A. The Ninth Circuit Court of Appeal erred by dis-

missing an appeal which was properly taken from a

interlocutor order which resulted in the denial of

preliminary injunctive relief. This action has “so

far departed from the accepted and usual course of

judicial proceedings as to call for an exercise of this

Court’s power of supervision.”

Petitioners’ complaint requested mandatory injunctive

relief pursuant to 15 U.S.C. § 2805(b) (1):

“In any action under subsection (A) of this section,

the court shall grant such equitable relief as the

13

court determines as necessary to remedy the effects

of any failure to comply with the requirements of

§ 2803 of this title, including declaratory judgment,

mandatory or prohibitory injunctive relief, and interin

equitable relief. (Emphasis added.)”

It is not disputed that Petitioners’ complaint requested

both mandatory and prohibitory injunctive relief. In the

docket statement filed by Petitioners on December 5,

1989, in subsection (H) thereof, a brief description of the

action was given wherein the action was described as one

brought pursuant to the PMPA requesting both

mandatory and injunctive relief.

The Ninth Cireuit Court of Appeal has embarked upon

a new path by failure to follow the provisions of 28 U.S.C.

§ 1292(a)(1). The sua sponte order of the court dis-

missing petitioners complaint was immediately reviewable

upon interlocutory appeal pursuant to the provisions of 28

U.S.C. § 1292. This was discussed in Presiano v. Hoffman-

LaRoche, Inc., 726 F.2d 105, 109 (3rd Cir. 1984) wherein

the court said:

“Furthermore, we agree that with plaintiffs second

assertion that the order granting summary judgment

for federal defendants is appealable as an ‘interro-

gatory order .... refusing to dissolve injunctions.’ 28

U.S.C. § 1292(a) (1) (1976). §1292(a)(1) has been

held to confirm appellate jurisdiction where injunec-

tive relief has been effectively denied although fewer

than all claims or all defendants were dismissed

(citations) ... where dismissal of some defendants

prevents the plaintiff from obtaining the full injune-

tive relief requested, or effectively denies relief all

together, then an appeal may lie under 1292(a) (1).

14

In this case, the grant of summary judgment in

favor of federal defendants, although not in terms of

refusing an injunction ‘have the practical effect of

doing so.’ Carson v. American Browns, 45 U.S. at 83,

101 S. Ct. at 996. Plaintiff had requested an injune-

tion only against the federal defendants, not against

the remaining defendants LaRoche. By finding in

favor of the federal defendants, the Court ‘necessa-

rily decided that upon the facts alleged [the plaintiff

was] not entitled to an injunction. Shirley v. Ben

Salem Township, 63 F.2d at 477; General Electric Co.

v. Marvell Rare Metals Co., 278 U.S. 430, 433, 53 S.

Ct. 202, 203, 77 L. Ed. 408 (1932). Thus, the order

‘passed on the legal sufficiency of the claim for

injunctive relief’, Gardner v. Westinghouse Broad-

casting Co. 437 U.S. 478, 481, 98 S.Ct. 2451, 2453, 57

L.Ed.2d 364 (1978), and we have jurisdiction to hear

the appeal on this ground.

(See also: Hotel and Rest. Emp., et al v. Rollison, 615

F.2d 788, 793 Note 15 (9th Cir. 1980) [‘... an order

denying the motion for summary judgment is appealable,

however, if the effect of the order is to deny a petition for

preliminary injunction” ], and Tagupa v. East West Center,

Inc., 640 F.2d 1127, 1129 (9th Cir. 1980) [Granting of

summary judgment and dismissal of complaint seeking

injunctive relief appealable as interlocutory order where

district court order had the substantial effect of refusing

an injunction] ).

The order of the Ninth Cireuit Court of Appeal, dis-

missing Petitioners’ appeal, has decided an important

and critical question of federal law which has not been,

but should be, settled by this court. The decision of the

Ninth Cireuit Court of Appeal creates a new form of order

and judgment from which an appeal cannot be taken. It

15

cannot be disputed that the orders appealed were inter-

locutory on the date of Petitioners’ notice of appeal. The

simple fact is that the judgment and order finally adjudi-

cating and disposing of all causes and claims on the

merits was not entered as of the date of filing of the

notice of appeal on October 16, 1991. The determination

of the Ninth Cireuit Court of Appeal would result in a

conclusion that an order dismissing an action requesting

injunctive relief which is otherwise appealable pursuant

to 28 U.S.C. § 1292(a) (1) as an interlocutor order, is not

appealable where cross-complainants file motions for re-

consideration concerning matters not related to the inter-

locutor order upon which appeal is taken. This decision

was contrary to the provisions of 28 U.S.C. § 1292(a) (1).

Presiano v. Hoffman-LaRoche, Inc., supra, p. 109; General

Electric Co. v. Marvelle Rare Metals Co., 278 U.S. 430, 433,

53 S. Ct. 202, 203, 77 L.Ed. 408 (1932); Gardner v.

Westinghouse Broadcasting Co., 437 U.S. 478, 481, 98 5.

Ct. 241, 253, 57 L.Ed.2d 364 (1978).

It is submitted that the Supreme Court should take this

opportunity to clearly announce that orders denying in-

junctive relief are immediately appealable pursuant to

28 U.S.C. Section 1292(a)(1) and elarify that an order

remains interlocutory until entry of the final judgment as

to all claims, including cross-claims and counter-claims.

The motion to dismiss the appeal relied upon the

provisions of Federal Rules of Appellate Procedure, Rule

4(a) (4). However, such provisions relate solely to tolling

the time periods for notice of appeals from final Judg-

ments. In the present case, the order appealed from was

an appealable interlocutcry order denying injunctive re-

lief. It is not disputed that at the time the appeal was

filed, no motion was pending that sought to amend,

modify or reconsider the order dismissing Petitioner's

16

complaint thereby denying injunctive relief. It is estab-

lished law that Rule 4(a) (4) is to “be confined to the

specific instances cited in Rules 4(a) (4)”’, that is motions

to modify and amend judgments. Anight v. Brown Trans-

port Corp., 806 F.2d 479, 483 (3d Cir. 1986); and Fas-

sett v. Delta Kappa Epsilon, 807 F.2d 1150, 1156 n.8 (3d

Cir. 1986).

A grave miscarriage of justice will occur if Petitioners

are not permitted to complete their more than 10 year

battle to enforce their federal statutory rights. It is

submitted that this is a matter deserving of this courts

intervention and that this Courts guidance is necessary

with respect to the scope and proper application and

eoordination of the provisions of 28 U.S.C. 1292(a) (1)

and Federal Rules of Appellate Procedure, Rule 4(a) (4).

B. The docketing statement which contains all of the

information required by Federal Rules of Appellate

Procedure, Rule 3(c) should have been accepted as

a notice of appeal. What documents will be accepted

as a valid notice of appeal is a question of federal law

which has not been, but should be settled by this

Court.

Federal Rules of Appellate Procedure, Rule 3(c)

provides:

“Content of the Notice of Appeal. The notice of appeal

shall specify the party or parties taking the appeal;

shall designate the judgment, order or part thereof

appealed from; and shall name the court to which the

appeal is taken.... An appeal shall not be dismissed

for informality of form or title of the notice of

appeal.”

It has long been the standing rule that an appeal should

not warrant dismissal for want of jurisdiction where

17

intention to appeal from a specific judgment or order may

be reasonably inferred from text of notice and where

defect has not materially misled appellee. Donovan v.

Esso Shipping Co., 259 F.2d 65 (3d Cir. 1958), Cert.

denied 359 U.S. 907, 79 S.Ct. 583, 3 L.Ed.2d 572. The

Ninth Cireuit docketing statement meets these require-

ments. The document is entitled “CIVIL APPEALS

DOCKETING STATEMENT.” The docketing statement

identifies the parties taking the appeal, the order ap-

pealed from, the court from which the appeal was taken,

the issues to be presented upon appeal and the nature of

the case in the lower court. Indeed, the docketing state-

ment contained more information than normelly required

for a notice of appeal pursuant to Rule 3(c). (a copy of

the Civil Appeals Docketing Statement is reproduced in

the Appendix).

All parties recognized that the appeal was intended.

Indeed, the appeal was fully briefed by all parties, with-

out objection. Neither Gulf nor Thrifty contended, in any

responding brief, that there was a defect in the notice of

appeal.

Even the Ninth Cireuit recognizes that Docketing

Statements can be accepted as a notice of appeal, al-

though it has been limited to appellants not represented

by legal counsel. Munden v. Ultra-Alaska Associates, 849

F.2d 383 (9th Cir. 1988). Either the docket statement

meets the requirements of Rule 3(c) or it does not. Here,

it clearly complies with the requirements of Rule 3(c).

It is submitted that the factual circumstances of this

ease, and the importance of clarity for all circuit courts of

enpeal what will be acceptable under F.R.C.P., Rule 3(c)

is a matter deserving of review and clarification by this

Court.

18

C. The 9th Circuit has adopted a constitutionally inva-

lid standard with respect to the acceptability of a

docketing statement as a notice of appeal under

Rule 3, which standard grants access to the judicial

process to indigents, while denying access to judicial

review for those who are not indigent. Such dis-

crimination resulting in denial of justice to citizens

who have the means to retain legal counsel is a

denial of equal protection and due process of law.

As discussed immediately above, the Ninth Circuit

accepts a “Civil Appeals Docketing Statement” as notice

of appeal under F.R.C.P., Rules 3(¢) under certain cir-

cumstances. In Mundan, supra, the court said:

“This court has stated that ‘documents which are

not denominated notices of appeal will be so treated

when they serve the essential purpose showing that

the party intended to appeal, are served on the other

parties to the litigation, and are filed in court within

the time period otherwise provided by Rule

4(a)(4)’.... In addition, Federal Rule of Appel-

late Procedure 3(¢c) provides that ‘[a]n appeal shall

not be dismissed for informality of form or title of

the notice of appeal.’

However, when employing this more lenient stan-

dard, we have generally been faced with an appellant

not represented by counsel, .... We will not extend

any leniency that is not demanded by these cases to

one where the party is represented by an attorney.”

(Id. at 386-387).

Thus, the issue presented by the Ninth Circuit Court of

Appeal, is not whether the Civil Appeal Docketing State-

ment meets the requirements of F.R.C.P., Rule 3(c), but

the class of litigant that files the docketing statement. If

19

the appellant is self-represented or indigent, applying the

holding in Mundan, supra, results in a finding that the

docketing statement will be accepted as a notice of appeal

and the appeal will proceed. If however, the appellant has

sufficient financial means to retain legal counsel to pro-

cess the appeal and is not indigent, the very same docket-

ing statement will be rejected as a notice of appeal. This

creation of classes of appellants, for applications and

interpretation of F.R.C.P., Rule 3(c¢), is an unconstitu-

tional denial of due process and equal protection of the

law.

Classifications based upon wealth, and the conse-

quences of wealth, are “traditionally disfavored.” Harper

v. Virginia Bd. of Elections, 383 U.S. 663, 668, 86 S.Ct.

1079, 1082, 16 L.Ed.2d 169 (1966); Lubin v. Parish, 415

U.S. 709, 719, 94 S.Ct. 1815, 39 L.Ed.2d 702 (1974). In

the absence of a compelling interest, conduct which cre-

ates such classifications and affects material rights, such

as access to courts and rights of appeal, cannot withstand

judicial scrutiny. As has been stated by this Supreme

Court, there “can be no equal justice where the kind of

trial a man gets depends on the amount of money he has.”

Griffin v. Illinois, 351 U.S. 12, 19, 76 S.Ct. 585, 100 L.Ed.

891 (1956). See also: Lubin, supra, at 791.

While traditionally these constitutional requirements

arise in the context of preserving the rights of the indi-

gent, the rule announced is that the law must be blind-

folded as to the wealth, means or identity of a litigant.

Thus, where a party is denied appellate rights because he

has sufficient financial means to retain legal counsel, an

impermissible classification occurs with unduly harsh re-

sults against the interests of those who have worked hard

to develop financial means. This classification cannot be

permitted to stand. Either the Ninth Circuit Civil Appeal

j

20

Docketing statement meets the requirement of F.R.C.P.,

Rule 3(¢c) or it does not. However, the answer to the

question cannot be based upon the character or status of

the person filing the document. It is submitted that this

is an issue of compelling national, and state interest, and

one which only this court can resolve. It is submitted that

this issue should be resolved at this time to provide

guidance to all cireuit courts of appeal, to the ninth

circuit court of appeal, and to prevent continued applica-

tion of procedures resulting in constitutionally impermis-

sible classifications based upon wealth and means of the

litigant. This court has frequently intervened to protect

the right of the indigent or unrepresented party, certainly

partys who have sufficient means to retain legal counsel

are deserving of like protection from this Court.

21

CONCLUSION

Petitioners have been engaged in litigation for almost

11 years against substantial odds and virtually every

legal obstacle imaginable. Petitioners’ appeal should not

have been dismissed. It is submitted that the issues

presented by this petition are of critical importance not

only to these Petitioners but to all appellants and that the

Circuit Courts of Appeal require guidance and clarifica-

tion from this Supreme Court.

Respectfully submitted

KENNETH P. ROBERTS

KENNETH P. ROBERTS,

A Professional Law Corporation

5850 Canoga Avenue, Suite 206

Woodland Hills, California 91367

(818) 888-3553

la

FILED

SEP 14 1989

Clerk, U.S. Distriet Court

Central District of California

CV 88-7653 TJH (Bx)

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

JACK ABADJIAN, et al.,

Plaintiffs,

Ve

GULF OIL CORPORATION, et al.,

Defendants.

AND RELATED COUNTERCLAIMS

AND CROSS-CLAIMS

MEMORANDUM OPINION

BACKGROUND

Plaintiffs are independent gasoline station operators in

possession or control of gasoline stations that have been

leased or sub-leased to them by Gulf Oil Corporation

(“Gulf”). In their complaint, plaintiffs allege violations

of the Petroleum Marketing Practices Act (“PMPA”), 15

{ U.S.C. §§ 2801-2805, and seek a declaration that Gulf is

required to give plaintiffs a right of first refusal to

purchase the properties that they possess or control.

Jurisdiction is pursuant to 15 U.S.C. § 2805(a).

In 1978, Gulf decided to withdraw from the Southern

California retail gasoline market. Gulf agreed to sell its

interest in gasoline stations in the area to Thrifty Oil

Company (“Thrifty”) in September, 1980. The plaintiffs’

stations were included in the stations Gulf agreed to sell

to Thrifty.

2a

After Gulf notified the independent operators about the

Thrifty sale, the relationship between Gulf and the inde-

pendent operators deteriorated. In August, 1981, plain-

tiffs filed their original complaint in state court alleging,

inter alia, violations of the PMPA because Gulf did not

offer plaintiffs first refusal rights before closing the sale

to Thrifty. That action was removed and, subsequently,

remanded. Abadjian v. Gulf Oil Corp., 602 F.Supp. 874,

&79 (C.D. Cal. 1984) (‘“Abadjian I’). The action was

eventually dismissed by the California Court of Appeal on

the ground that federal courts have exclusive jurisdiction

of claims asserted under PMPA.

At all times since the 1980 Gulf/Thrifty agreement,

plaintiffs have remained in possession or control of the

properties. Gulf has not transferred the properties to

Thrifty. Gulf has not cut off the supply of gasoline or

other petroleum products to plaintiffs. When the plain-

tiffs refused to pay rent, Gulf obtained a state court

order, pursuant to Cal. Code Civ. Proce. § 1174, requiring

the dealers to pay rent. That order was upheld in

Abadjian v. Superior Court, 168 Cal.App.3d 363, 214 Cal.

Rptr. 234 (1985).

Following the state court’s dismissal, plaintiffs were

permitted to bring this action, this Court having deter-

mined that the one-year limitation provision of PMPA, 15

U.S.C. § 2805(a), was equitably tolled.

Plaintiffs moved for summary adjudication of the is-

sues. For the reasons discussed below, the Court con-

cludes that plaintiffs were never terminated; therefore,

they are not entitled to relief under PMPA, and the entire

action is dismissed sua sponte.

3a

DISCUSSION

PMPA was enacted to protect independent gasoline

station operators, “franchisees”, from arbitrary termina-

tion or nonrenewal.’ To obtain relief, the franchisee has

the burden, under 15 U.S.C. § 2805(¢), of proving termi-

nation or nonrenewal. To meet this burden, the fran-

chisee must prove that the franchisor breached the

franchise agreement. May-som Gulf, Inc. v. Chevron

U.S.A., Inc., 869 F.2d 917, 922 (6th Cir. 1989); see also

Fresher v. Shell Oil Co., 846 F.2d 45, 46 (9th Cir. 1988).

Termination of the supply component of a franchise

agreement occurs when the franchisor cuts off the supply

of gasoline and other products. Wisser Co. v. Texaco, Inc.,

529 F.Supp. 727, 730 n.4 (S.D.N.Y. 1981).

It is undisputed that Gulf did not cut off the supply of

gasoline to plaintiffs. It is, also, undisputed that plaintiffs

have had continuous possession or control of the proper-

ties. Such occupancy, and the sale of gasoline obtained

from Gulf, is inconsistent with a claim of termination. See

Halder v. Standard Oil Co., 642 F.2d 107, 111 (5th Cir.

1981).

There are no genuine issues of material fact regarding

essential allegations of the complaint. The plaintiffs have

not been terminated by Gulf and their right to first

refusal has not yet arisen. Gulf did not breach the

franchise agreement, and the plaintiffs have not had any

PMPA rights violated.

Therefore, the complaint is dismissed.

‘This Court has already ruled that the plaintiffs are Gulf franchis-

ees as defined by PMPA, 15 U.S.C. § 2801. Abadjian I, 602 F.Supp. at

879.

1 ES

4a

The remaining counterclaims and cross-claims are es-

sentially the same as those currently before the Los

Angeles Superior Court in Abadjian v. Gulf Oil Corp.,

C 377024. Since the federal questions have been resolved,

this Court reevaluates its jurisdiction, United States v.

City of Twin Falls, Idaho, 806 F.2d 862, 868 (9th Cir.

1986), cert. denied, 482 U.S. 914, 107 S.Ct. 3185, 96

L.Ed.2d 674 (1987). Following the advice of the Supreme

Court in United Mine Workers of America v. Gibbs, 383

U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218, 228

(1966), the state claims are dismissed.

Date: September 13, 1989

TERRY J. HATTER, JR.

United States District Judge

5a

FILED

SEP 14 1989

Clerk, U.S. Distriet Court

Central District of California

CV 88-7653 TJH (Bx)

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

JACK ABADJIAN, et al.,

Plaintiffs,

Ve

GULF OIL CORPORATION, et al.,

Defendants.

AND RELATED COUNTERCLAIMS

AND CROSS-CLAIMS

JUDGMENT

The Court having considered the papers and the argu-

ments of counsel in this case, and a decision having been

duly rendered;

IT IS ORDERED AND ADJUDGED that plaintiffs,

counterclaimants and cross-claimants take nothing and

that each party is to bear its own costs.

Date: September 13, 1989

TERRY J. HATTER, JR.

United States District Judge

6a

FILED

SEP 14 1989

Clerk, U.S. Distriet Court

Centra] District of California

ENTERED

Clerk, U.S. Distriet Court

SEP 18 1989

Centra] District of California

CV 88-7653 TJH (Bx)

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

JACK ABADJIAN, et al., -

Plaintiffs,

ve

GULF OIL CORPORATION, et al.,

Defendants.

AND RELATED COUNTERCLAIMS

AND CROSS-CLAIMS

ORDER

The Court having considered the papers and the argu-

ments of counsel in this case, and for good cause shown;

IT IS ORDERED that the entire section, including

counterclaims and cross-claims, is dismissed with

prejudice.

Date: September 13, 1989

TERRY J. HATTER, JR.

United States District Judge

7a

Court of Appeals Docket Number

&9-56189

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

P.O. Box 547

San Franciseo, CA 94101

YOU MUST FILE AN ORIGINAL AND ONE COPY

OF THIS FORM WITH THE CLERK OF THIS COURT

WITHIN 14 CALENDAR DAYS OF THE DATE THE

FORM IS SENT BY THE CLERK. YOU MUST AT-

TACH TO THE ORIGINAL AND TO THE COPY OF

THIS FORM (1) A COPY OF THE JUDGMENT OR

ORDER APPEALED FROM, (2) A COPY OF ANY

OPINION OR FINDINGS OF FACT AND CONCLU-

SIONS OF LAW SUPPORTING THE JUDGMENT OR

ORDER, AND (3) PROOF OF SERVICE ON OPPOS-

ING COUNSEL.

CIVIL APPEALS DOCKETING STATEMENT

Case Name: Jack Abadjian, et al. v. Gulf Oil Corpora-

tion, et al., District Court/Agency: U.S. District Court of

California, Central District, District Court/Agency

Docket No.: CV88-7653 TJH (Bx), District Judge:

Terry J. Hatter, Party filing appeal/petition: Plaintiffs,

Jack Abadjian, et al.

A. Timeliness of Appeal or Petition for Review or

Enforcement: (1) Date of entry of judgment or order:

September 18, 1989, (2) Service date of any post-judg-

ment motion (other than motion for fees and costs): Gulf

Sept. 22, 1989, Thrifty Sept. 28, 1989, (3) Date of entry of

order deciding post-judgment motion: Gulf Oct. 26, 1989,

Thrifty Nov. 13, 1989, (4) Date notice of appeal or

petition filed: October 16, 1989, (5) Last day for filing

Sa

appeal or petition: December 13, 1989, (6) Authority

fixing time limit for filing appeal or petition: Fed. R. App.

P. 4(a) (1) Fed. R. App. P. 4(a) (2) Fed.

R. App. P. 4(a) (3) Fed. R. App. P. 4(a) (4) x

Fed. R. App. P. 4(a) (5) Other

B. Appeal from District Court: (1) Is the order ap-

pealed from a final order (i.e., does it dispose of the

action as to all claims by all parties? yes. (2) If the order

is not a final disposition as to all claims by all parties, did

the district court direct the entry of judgment in accor-

dance with Fed. R. Civ. P. 54(b)? n/a. (3) If not final, is

the order appealable as the grant or denial of an injune-

tion under 28 U.S.C. § 1292(a) (1)? n/a. (4) If none of the

above applies, what is the basis for appellate jurisdiction?

n/a.

I. Issues to be Raised on Appeal: 1. Did the District

Court error by dismissing Plaintiffs’ action upon the

District Court’s own motion upon the ground for failure

to state a claim under the PMPA? 2. Did the District

Court error by denying Plaintiffs’ Motion for Reconsider-

ation of Order Dismissing Plaintiff's Complaint.

J. Standard of Appellant Review (Specify the proper

standard of review to be applied by the court for each

issue to be raised, citing relevant authority): Strict Seru-

tiny Albrecht v. Lund, 845 F.2d 193, 195 (9th Cir. 1988)

K. Do you believe that settlement is feasible in this

ease? No. Why or why not? The parties have previously

attempted to settle this matter. However, this action

actually involves a dispute between the Plaintiffs, service

station franchisees, Gulf, franchisor and selling party of

properties, and Thrifty, non-franchisor and party desir-

ous of purchasing the property. The properties have

Ya

appreciated substantially in value and previous attempts

to settle have been unsuccessful.

L. Would a prebriefing conference be useful in this

ease? No. Why or why not? The District Court has

exclusive jurisdiction over actions arising under the

PMPA. A final judgment and order of dismissal have

been entered. It is not reasonably believed that there are

any grounds for settlement. The issues are relatively

narrow recognizing that pre-trial dismissal on the Court’s

own motion is the subject matter of review. Joint briefing

is not possible because all parties have conflicting inter-

ests. There presently exist litigation between Gulf and

Thrifty.

10a

FILED

SEPTEMBER 14, 1989

Clerk, U.S. District Court

Central District of California

CV 88-7653 TJH (Bx)

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

JACK ABADJIAN, et. al.,

Piaintiffs,

V.

GULF OIL CORPORATION, et al.,

Defendants.

AND RELATED COUNTERCLAIMS

AND CROSS-CLAIMS

ORDER

The Court having considered plaintiffs’ motion for re-

consideration, together with the meving and opposing

papers;

IT IS ORDERED that the motion be, and hereby is,

DENIED.

Date: September 13, 1989

TERRY J. HATTER, JR.

Terry J. Hatter, Jr.

United States District Judge

lla

FILED

SEPTEMBER 14, 1989

Clerk, U.S. District Court

Central District of California

CV 88-7653 TJH (Bx)

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

JACK ABADJIAN, et. al.,

Plaintiffs,

Vv.

GULF OIL CORPORATION, et al.,

Defendants.

AND RELATED COUNTERCLAIMS

AND CROSS-CLAIMS

ORDER

The Court having considered the papers and the argu-

ments of counsel in this case, and for good cause shown;

IT IS ORDERED that the entire action, including

ecounter-claims and cross-claims, is dismissed with

prejudice.

Date: September 13, 1989

TERRY J. HATTER, JR.

Terry J. Hatter, Jr.

United States District Judge

l2a

FILED

SEPTEMBER 14, 1989

Clerk, U.S. District Court

Central District of California

CV 88-7653 TJH (Bx)

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

JACK ABADJIAN, et. al.,

Plaintiffs,

Vv.

GULF OIL CORPORATION, et al.,

Defendants.

AND RELATED COUNTERCLAIMS

AND CROSS-CLAIMS

JUDGMENT

The Court having considered the papers and the argu-

ments of counsel in this case, and a decision having been

duly rendered;

IT IS ORDERED AND ADJUDGED that plaintiffs,

countereclaimants and cross-claimants take nothing and

that each party is to bear its own costs.

Date: September 13, 1989

TERRY J. HATTER, JR.

Terry J. Hatter, Jr.

United States District Judge

13a

FILED

NOVEMBER 9, 1989

Clerk, U.S. District Court

Central District of California

DONALD C. SMALTZ

LEIGHTON M. ANDERSON

THEODORE G. SPANOS

MORGAN, LEWIS & BOCKIUS

Twenty-Second Floor

801 South Grand Avenue

Los Angeles, California 90017-3189

Telephone: (213) 612-2500

Attorneys for Thrifty Oul Co.

Case No. CV 88-7653 TJH (Bx)

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

JACK ABADJIAN, MARK BALL, JOSEPH BROWN,

JOHN EGHENIAN, BRAD May, NAS MAZARE},

DONALD PROUSE, AL ROSENSTEIN, ARAM SHISHMANIAN,

JOE SMIDERLE and STEPHEN WEBBER,

Plaintiffs,

Ws

GULF O1L CORPORATION, a Pennsylvania corporation,

CHEVRON U.S.A. INc., a Pennsylvania corporation and

THRIFTY OIL CoMPANY, a California corporation,

Defendants.

AND COUNTERCLAIM AND CROSS-CLAIM

[PROPOSED] AMENDED ORDER

DISMISSING ACTION

The Court’s Order, dated September 13, 1989, relating

to the dismissal of the complaint and all counterclaims

————————eee————e—eEeEeEeEeE——————EeEE—EeEeEeEE

l4a

and cross-claims in the action, is amended to provide as

follows:

The Court having considered the papers and arguments

of counsel in this case and for good cause shown;

IT IS ORDERED that plaintiffs’ Complaint is dis-

missed with prejudice. The remaining counterclaims and

eross-claims are dismissed without prejudice.

IT IS SO ORDERED.

Dated: October 26, 1989

TERRY J. HATTER, JR.

United States District Judge

Presented on October 25, 1989, by:

DONALD C. SMALTZ

LEIGHTON M. ANDERSON

MORGAN, LEWIS & BOCKIUS

By LEIGHTON M. ANDERSON

Attorneys for Thrifty Oil Co.

-

lDa

FILED

NOVEMBER 9, 1989

Clerk, U.S. Distriet Court

Central District of California

ENTERED

NOVEMBER 13, 1989

Central District of California

DONALD C. SMALTZ

LEIGHTON M. ANDERSON

THEODORE G. SPANOS

MORGAN, LEWIS & BOCKIUS

Twenty-Second Floor

801 South Grand Avenue

Los Angeles, California 90017-3189

Telephone: (213) 612-2500

Attorneys for Thrifty Oui Co.

Case No. CV 88 7653 TJH (Bx)

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

JacK ABADJIAN, MARK BALL, JOSEPH BROWN,

JOHN EGHENIAN, BRAD May, NAS MAZAREI,

DONALD PROUSE, AL ROSENSTEIN, ARAM SHISHMANIAN,

JOE SMIDERLE and STEPHEN WEBBER,

Plaintiffs,

VS.

GULF O1L CORPORATION, a Pennsylvania corporation,

CHEVRON U.S.A., INc., a Pennsylvania corporation, and

THRIFTY OIL CORPORATION, a California corporation,

Defendants.

AND COUNTERCLAIM AND

CROSS-CLAIM.

eee ea a.

l6a

AMENDED JUDGMENT

The Judgment in the above action dated September 13,

1989, is amended to provide as follows:

The Court having considered the papers and arguments

of counsel in this ease, and a decision having heen duly

rendered;

IT IS ORDERED AND ADJUDGED that plaintiffs

take nothing by their Complaint which is dismissed with

prejudice. The remaining counterclaims and cross-claims

are dismissed without prejudice. Each party shall bear

his or its own costs.

DATED: October 26, 1989

TERRY J. HATTER, JR.

U.S. District Judge

Presented on October 25, 1989, by:

DONALD C. SMALTZ

LEIGHTON M. ANDERSON

MORGAN, LEWIS & BOCKIUS

By LEIGHTON M. ANDERSON

Attorneys for Thrifty Oil Co.

17a

(PROOF OF SERVICE BY MAIL —-

1013a, 2015.5 C.C.P.)

STATE OF CALIFORNIA, COUNTY OF LOS

ANGELES

I am a resident of/employed in the aforesaid county,

State of California; I am over the age of eighteen (18)

years and not a party to the within action; my business

address/residence address is: 5850 Canoga Avenue, Suite

206. Woodland Hills, CA 91367. I am readily familiar

with the business’ practice for collection and processing

of correspondence for mailing with the United States

Postal Service, and the fact that the correspondence

would be deposited with the United States Postal Service

that same day in the ordinary course of business.

On Nov. 30, 1989, I served the foregoing Civil Appeals

Docketing Statement on interested parties in this action

by placing a true copy thereof, enclosed in a sealed

envelope on this date at Woodland Hills, CA, and placed

for collection and mailing on this date following ordinary

business practices addressed as follows:

JACK D. FUDGE, ESQ.

MecCUTCHE, BLACK, VERLEGER & SHEA

600 Wilshire Boulevard

Los Angeles, CA 90017

LEIGHTON ANDERSON, ESQ.

MORGAN, LEWIS & BOCKIUS

801 S. Grand Avenue

Suite 2200

Los Angeles, CA 90017

18a

I certify (or declare) under penalty of perjury under

the laws of the State of California, that the foregoing is

true and correct.

Date: Nov. 30, 1989

Linda Loy

Full Name of

Declarant

Signature of

Declarant

r a’

19a

No. 89-56189

DC# CV-88-7653-TJH

Central California

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JACK ABADJIAN, ef al.,

Plaintiffs-Appellants,

VS.

GULF OIL CORPORATION, ef al.,

Defendants-Appellees.

ORDER

Before: ALARCON, POOLE and NORRIS, Circuit

Judges

Gulf Oil’s postjudgment motion of September 22, 1989

tolled the time for appeal. Because Gulf Oil’s motion was

pending when the notice of appeal was filed, the notice of

appeal had no effect. See Fed. R. App. P. 4(a); Bestran

Corp. v. Eagle Comtronics, Inc., 720 F.2d 1019, 1019 (9th

Cir. 1983). This is true even if Thrifty Oil's motion of

September 28, 1989 is properly construed as a motion

pursuant to Fed. R. Civ. P. 60(b). See Clarkson v. Internal

Revenue Service, 678 F.2d 1368, 1371 n.2 (11th Cir. 1982).

In addition, because appellants are represented by coun-

sel, their Civil Appeals Docketing Statement cannot sub-

stitute as a notice of appeal. See Munden v. Ultra-Alaska

Associates, 849 F.2d 383, 387-88 (9th Cir. 1988). Accord-

ingly, appellees’ motion to dismiss this appeal for lack of

jurisdiction is granted.

20a

No. 89-56189

DC# CV-88-7653-TJH

Central California

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JACK ABADJIAN, et al.,

Plaintiffs-Appellants,

VS.

GULF OIL CORPORATION, et al.,

Defendants-Appellees.

ORDER

Before: ALARCON, POOLE and NORRIS,

Circuit Judges

Appellants’ petition for rehearing/motion for reconsid-

eration is denied in its entirety. Appellees’ request for

sanctions is aiso denied.

No further filings shall be accepted in this closed

docket.

Ordered not dated.

Order filed January 27, 1992.