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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1992
- **Citation:** 504 U.S. 986

## Text

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—_

@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

—-.

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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0637%3A1. Public record. Not legal advice.