Petition for Writ of Certiorari — Jones v. Petty-Ray Geophysical Geosource

Bupreme Court, U.S.

FILED

91-2028 | MAY6 1992

No. OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1991

+

BRENDA JONES, Individually and

As Administratrix of the

Estate of EVAN A.M. JONES,

Deceased,

Petitioner,

vs.

PETTY-RAY GEOPHYSICAL GEOSOURCE, ET AL.,

Respondents.

¢

Petition For Writ Of Certiorari To The

United States Court Of Appeals

For The Fifth Circuit

+

PETITION FOR WRIT OF CERTIORARI

*

| CHARLES Louis ROBERTS

Attorney for Petitioner

Texas Bar No. 17000100

One Texas Tower

109 N. Oregon, Suite 1400

El Paso, Texas 79901

(915) 532-5475

COCKLE LAW BRIEF PRINTING CO,, (800) 225-6964

OR CALL COLLECT (402) 342-2831

et ee

ey Pe

QUESTIONS PRESENFED

WHETHER THE COURT OF APPEALS ERRED IN

DISMISSING PETITIONER’S APPEAL BECAUSE OF

AN EXCUSABLE AND EXPLICABLE FAILURE TO

FILE THE APPELLANT’S BRIEF WHEN NOTIFICA-

TION WAS SENT TO TRIAL COUNSEL INSTEAD

OF APPELLATE COUNSEL.

WHETHER THIS COURT UNDER ITS SUPER-

VISORY POWERS SHOULD REVERSE THE DIS-

MISSAL OF PETITIONER’S APPEAL BECAUSE OF

AN EXCUSABLE AND EXPLICABLE FAILURE TO

FILE THE APPELLANT’S BRIEF WHEN NOTIFICA-

TION WAS SENT TO TRIAL COUNSEL INSTEAD

OF APPELLATE COUNSEL.

il

TABLE OF CONTENTS

Page

FUSE are G C RRIUIO EE bc 6s hin v a ce0saabeannaaes i

Tees WE UPON PUES oc 6s 00s bev and co epeeeeien ees ii

SABE CE AAT EF Cine ov nik vo ean eew Ceneebesane iii

CITATIONS TO OPINIONS BELOW................ 2

pio ip) err rrr re rorrnt 2

ie Rt 8: : Sree ae ee es ree ckvag,

SiAtomems OF THA CAGE. 006 oes pcixsncwwbelees I

REASONS WHY THE WRIT SHOULD BE GRANTED ‘

CUONLLUSION AND PRATER 4: .6sscieees cannweees 13

TABLE OF AUTHORITIES

Page

Barber v. American Sec. Bank, 841 F.2d 1159

ee es A, ek ng ne é hha hued nae eo 12

Frazier v. Heebe, 482 U.S. 641, 107 S.Ct. 2607, 96

ec aces Gaee cence cues decades i)

King v. Laborers Internat. U. of No. America, U.L. No.

Samy Gee t.ae aro (Gtn Cir, 1971)............00085. 10

Marcaida v. Rascoe, 569 F.2d 828 (5th Cir. 1978)....8, 11

Phillips v. Employers Mutual Liability Ins. Co. of

fume, aoe mums oo (oem Civ. 1956) 2... .. ccc cece eeees 11

Stotler and Co. v. Able, 837 F.2d 1425 (7th Cir. 1988) .... 12

United States v. Edwards, 366 F.2d 853 (2nd Cir.

ee oe ck neha ee eessikeneesrieus 10

Young v. U. S. ex rel. Vuitton et Fils S.A., 481 U.S.

787, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987).......... 9

¢

In The

Supreme Court of the United States

October Term, 1991

€

BRENDA JONES, Individually and

As Administratrix of the

Estate of EVAN A.M. JONES,

Deceased,

Petitioner,

VS.

PETTY-RAY GEOPHYSICAL GEOSOURCE, ET AL.,

; Respondents.

¢

Petition For Writ Of Certiorari To The

United States Court Of Appeais

For The Fifth Circuit

¢

PETITION FOR WRIT OF CERTIORARI

¢

BRENDA JONES, Individually and As Administratrix

of the Estate of EVAN A.M. JONES, Deceased, Petitioners

herein, by and through her appellate attorneys of record,

CHARLES LOUIS ROBERTS and JAMES F. SCHERR,

hereby petitions this Court to grant a Petition for Writ of

Certiorari to the United States Court of Appeals for the

Fifth Circuit.

ee

CITATIONS TO OPINIONS BELOW

The denial of rehearing en banc by the United States

Court of Appeals for the Fifth Circuit in Brenda Jones,

Individually and As Administratrix of the Estate of EVAN

A.M. JONES, Deceased, No. 91-2476 was entered on Febru-

ary 6, 1992; and this Order is reproduced herein as App.

6a. There was no Opinion of the panel in this case. The

Order dismissing appeal is reproduced herein as App. la.

The Issuance of Mandate is reproduced herein as App. 3a.

The Order denying Motion to Reinstate appeal is repro-

duced herein as App. 5a. The Notice to Counsel is repro-

duced herein as App. 7a.

JURISDICTION

The denial of rehearing by the United States Court of

Appeals for the Fifth Circuit was entered on February 6,

1992. This Petition is timely filed within ninety (90) days

of February 6, 1992, pursuant to Supreme Court Rule

20.01. Jurisdiction of this Court is invoked pursuant to 28

U.S.C. § 1254(1).

¢

RULE INVOLVED

Rule 42.3 of the United States Court of Appeals for

the Fifth Circuit reads as follows in pertinent part:

42.3. Dismissal for Failure to Prosecute:

42.3.1 In direct criminal appeals... the follow-

ing action shall be taken if appellant fails to file

ee

a brief or otherwise fails to comply with rules

requiring processing the appeal to hearing:

3.1.1 Appeals with counsel. If appellant is

requested by counsel, appointed or retained, the

Clerk shall issue a notice to counsel that, upon

expiration of 15 days from the date thereof, the

appeal may be dismissed for want to prosecu-

tion unless prior to that date the default is

remedied, and shall enter an order directing

counsel to show cause within 15 days from the

date thereof why disciplinary action should not

be taken against counsel. If the default is

remedied within that time the Clerk shall not

dismiss the appeal and may refer to the Court

the matter of disciplinary action against the

attorney. If the default is not remedied within

that time the Clerk may enter an order dismiss-

ing the appeal for want of prosecution or may

refer to the Court the question of dismissal.

Rules of the United States Court of Appeals for

the Fifth Circuit.

Loc.R.42.3.1 (3.1.1)

STATEMENT OF THE CASE

In a full explanation of the facts, the Petitioner would

present the following: This is a death case involving a

widow, BRENDA JONES, as a Plaintiff and Appellant and

Petitioner here. This was the third appeal before the

United States Court of Appeals for the Fifth Circuit

wherein Ms. JONES is in the role of Appellant and Mr.

CHARLES LOUIS ROBERTS was lead appellant counsel

(and notification counsel). All of these appeals (90-2093,

90-2533 and 91-2476) involve the same lawsuit out of the

United States District Court in Houston where Mr.

JAMES SCHERR is trial counsel. These appeals are: (1)

JONES v. TOTAL EXPLORATION, TOTAL SOUDAN, and

TOTAL COMPAGNIE FRANCIS DES PETROLES, No.

90-2093; (2) JONES v. PETTY RAY GEOPHYSICAL, GEO-

SOURCE, INC., et al., TOTAL EXPLORATION; TOTAL

SOUDAN, and TOTAL COMPAGNIE FRANCIS DES

PETROLES, No. 90-2533; and, (3) JONES v. PETTY-RAY

GEOPHYSICAL DIVISION OF GEOSOURCE, INC., GEO-

SOURCE, INC., and MARATHON PETROLEUM SUDAN,

LTD., No. 91-2476. The fact that there were three (and

now two) appeals is the result of Summary Judgment and

appeal certification procedures on the part of the trial

court, rather than the result of any calculated effort on

the part of Ms. JONES. One of these appeals has recently

been decided: JONES v. PETTY RAY GEOPHYSICAL,

GEOSOURCE, INC., et al., TOTAL EXPLORATION; TOTAL

SOUDAN, and TOTAL COMPAGNIE FRANCIS DES

PETROLES, No. 90-2533. The other appeal was volun-

tarily dismissed by Mr. ROBERTS after he received the

record and noticed that it was not properly certified for

interlocutory appeal. As we will see, the multiplicity of

appeals was a factor contributing to the confusion in this

appeal.

The preparation of the record in this case took an

abnormally long time (due also to the multiplicity of

appeals) (See Docket Sheet). This delay of several months

tended to place this appeal in limbo. Initially, a request

for the record was made by the office of Mr. ROBERTS

prior to the filing date. Unfortunately, Mr. ROBERTS’

office assumed that he would be notified upon comple-

tion of the record inasmuch as he was lead/notification

counsel in the two prior appeals, and his office was

communicating with the clerk.

However, notification that the record was filed and

the brief was due was sent to Mr. JAMES SCHERR, trial

counsel and only Mr. SCHEER. (See Notice to Counsel, App.

10a). Mr. ROBERTS was unaware whether a copy of such

notice was received before notification of the dismissal.

Counsel’s secretary related that she made exhaustive

. searches of files and could not find any indication that

such notice was received. Mr. SCHERR abruptly sent in

an appearance form that listed Mr. ROBERTS as lead/

notification Counsel. This document was primarily a

method of communication to the Court that “this is the

one to notify.” Even though the record had been

requested and the Court had been notified that Mr.

ROBERTS was going to prepare Appellant’s brief, the

record was not transmitted to him. This is all the more

curious because the letter from the Clerk’s office notify-

ing Mr. SCHERR of the due date for the brief implicitly

acknowledges that a request for transmittal had been

made. Indeed, the Clerk’s letter says as much in the

following statement: “The Record on Appeal cannot be

sent until your appearance of counsel form has been

filed” (See Motion to Reinstate, Notification of Due Date).

However, as we know, the Clerk’s office did not transmit

the record to lead/notification counsel listed on the

appearance. Instead, the Clerk’s office for the United

States Court of Appeals for the Fifth Circuit waited for

the due date to pass and the Clerk’s office summarily

dismissed the appeal, (See Order Dismissing appeal, App.

la). This was done without notice of intent to dismiss, or

any opportunity to correct the default. Thus, the first

notice lead/notification counsel received was a dismissal

notice, with a notice that the record was being transmit-

ted not to Counsel, but back to the District Clerk (See

Order Dismissing Appeal, App. 1a). As previously noted,

this Notice of Issuance of Mandate, App. 3a was also indica-

tive that the Clerk’s office had retained the record and

transcripts in spite of the admitted request that they be

submitted to counsel so that he could use them to prepare

a brief. That Notice indicates clearly that the Clerk’s office

is transmitting a full ten (10) volumes of record and an

envelope of Exhibits back to the District Clerk, (See Notice

of Issuance of Mandate, App. 3a).

After receiving the notification of dismissal, Counsel

timely filed a Motion to Reinstate which included affi-

davits of his staff that stated the record nor the notifica-

tion of a due date as to the brief was received by his

office. As previously indicated, the notice inadvertently

sent to trial counsel, JAMES F. SCHERR, acknowledged

that a request for the record had been made. Also, the

notice of issuance of mandate which accompanied the

Order dismissing appeal indicated that the Clerk’s office

had retained ten (10) volumes and one (1) envelope. It

was hardly possibly that Mr. ROBERTS’ office could have

overlooked ten (10) volumes and the fact that the Clerk’s

office still retained those ten (10) volumes indicated that

they were not transmitted to him in spite of the request.

Had they been transmitted to him they would have, of

course, given him notice that a brief was due.

This Motion to Reinstate was denied and Counsel filed

a further Petition for Rehearing En Banc which again

detailed his situation as having failed to receive the

record or notification. This Motion for Rehearing included

ee

copies of Counsel’s calendar which indicated that unlike

many other State and Federal appeals, this Appeal was

not docketed so as to give the due date for filing the

Appellant’s Brief. Furthermore, the Appellee in its

response was unable to demonstrate any prejudice save

the passage of a short amount of time and its failure to

gain a procedural dismissal. The United States Court of

Appeals was fully aware that had counsel known about

the brief he could have requested a short extension to file

such brief and such extension would have been granted.

e—

REASONS WHY THE WRIT SHOULD BE GRANTED

I. THE COURT OF APPEALS ERRED IN DISMISS-

ING PETITIONER’S APPEAL BECAUSE OF AN

EXCUSABLE AND EXPLICABLE FAILURE TO

FILE THE APPELLANT’S BRIEF WHEN NOTI-

FICATION WAS SENT TO TRIAL COUNSEL

INSTEAD OF APPELLATE COUNSEL.

Il. THIS COURT UNDER ITS SUPERVISORY

POWERS SHOULD REVERSE THE DISMISSAL

OF PETITIONER’S APPEAL BECAUSE OF AN

EXCUSABLE AND EXPLICABLE FAILURE TO

FILE THE APPELLANT’S BRIEF WHEN NOTI-

FICATION WAS SENT TO TRIAL COUNSEL

INSTEAD OF APPELLATE COUNSEL.

In this case, the Petitioner’s appeal was dismissed for

a procedural default. This dismissal was accomplished by

an Order from the Clerk’s office signed by a Deputy

Clerk which was issued without notice or any oppor-

tunity to correct the default. The effect of the dismissal

was to uphold a Summary Judgment granted against her in

the United States District Court below. Because of this,

she has not had a fair opportunity to litigate her case

which is based on the wrongful death of her husband.

The Petitioner admits that her brief was not timely

filed. However, she demonstrated below that such default

was occasioned by the Clerk’s office of the United States

Court of Appeals for the Fifth Circuit notifying trial

counsel instead of appellate counsel and by the failure of

the same Clerk’s office to transmit the record and

retransmit the brief due date notice to appellate counsel.

Because of this confusion, the Appellant’s brief was not

timely filed. This was a default; however, it was neither

intentional, nor inexplicable, nor accompanied by real

prejudice to the adverse party. Indeed, the adverse party

indicated only the passage of a small amount of time (ina

case which had been in litigation for several years)

together with its loss of the procedural dismissal itself,

(See Appellee’s Response) Such prejudice does not suffice

as real prejudice, Marcaida v. Rascoe, 569 F.2d 828 (5th Cir.

1978).

In asking this Court to hear this case, the Appellant

advances two grounds, first, that this Court has super-

visory authority over the federal courts of appeal in

regard to such critical procedural processes such as a

summary dismissal of an ongoing appeal. Second, that the

circuits are in conflict as to whether such a procedural

default warrants the extreme sanction of dismissal when

a rational and excusable explanation is submitted and

where the adverse party cannot show real prejudice.

a

A. Supervisory Power and Responsibility.

This Court has clear supervisory authority and

responsibility over the inferior federal courts, including

the Courts of Appeal. This especially applies to critical

procedures such as summary dismissals and to rules

authorizing such summary dismissals such as Fifth Cir-

cuit Local Rule No. 91-2476 which authorizes the Clerk’s

office to summarily dismiss appeals without notice for

procedural default. See Frazier v. Heebe, 482 U.S. 641, 107

S.Ct. 2607, 96 L.Ed.557 (1987); Young v. U.S. ex rel. Vuitton

et Fils S.A., 481 U.S. 787, 107 S.Ct. 2124, 95 L.Ed.2d 740

(1987).

B. Conflict of Authority.

Several of the United States Courts of Appeal, includ-

ing the Fifth Circuit, have issued holdings that deny the

extreme sanction for dismissal on the grounds of non-

jurisdictional procedural defaults. such as the untimely

filing of the Appellate brief. For example, the Second

Circuit has held:

On May 19, 1966, Edwards’ appeal was dis-

missed for failure to file his brief and appendix

in accordance with the schedule previously set

down by this court. On June 20, 1966, Edwards

moved to vacate the dismissal, citing unusual

circumstances which prevented his attorney

from devoting his time to this case. Because of

these circumstances, we vacated the dismissal of

Edwards’ appeal, accepted a belatedly filed

10

brief (to which the government has responded)

and considered Edwards’ appeal on the merits.

United States v. Edwards,

366 F.2d 853, 857 n.1 (2nd Cir. 1966)

And the Sixth Circuit has held:

The rules cited by Appellee are stated in

permissive, rather than mandatory language.

We are not required to dismiss every appeal

which does not meet each of the time limitations

in the above-stated rules. See with regard to

Rules 11 and 12, Federal Rules of Appellate Pro-

cedure, Black v. United States, 269 F.2d 38 (9th Cir.

1959) cert. denied 361 U.S. 938, 80 S.Ct. 379, 4

L.Ed.2d 357; United States v. Bowen, 310 F.2d 45

(Sth Cir. 1962); Watley v. United States, 221 F.2d

476 (5th Cir. 1955). See with regard to Rule 3,

Federal Rules of Appellate Procedure, Teamsters,

Chauffeurs, Warehousemen and Helpers, Local

Union 524 v. Billington, 402 F.2d 510 (9th Cir.

1968); United States v. Edward, 366 F.2d 853 [857

n.1] (2nd Cir. 1966) cert. denied 386 U.S. 908, 87

S.Ct. 852, 17 L.Ed.2d 782; Phillips v. Employers

Mutual Liability Ins. Co. of Wisconsin, 239 F.2d 79

(5th Cir. 1956).

King v. Laborers Internat. U. of

No. America, U.L. No. 818,

443 F.2d 273, 276 (6th Cir. 1971)

And even the Fifth Circuit has previously held:

We pretermit discussion of the jurisdictional

issued raised by appellee’s motion to dismiss for

appellant’s late filing of the record and brief on

appeal. Exercising the board discretion vested in

this Court by Rule 73(a), Federal Rules of Civil

Procedure, 28 U.S.C.A., we simply hold that

11

appellant’s failure in these respects to show

strict compliance with Rule 73(g) and this Cir-

cuit’s Rule 24, 28 U.S.C.A., are at most non-

jurisdictional defects in the prosecution of his

appeal, which we consider insufficient to war-

rant dismissal. See Martin v. Handy-Andy Com-

munity Stores of Texas, 5 Cir., 214 F.2d 10, 11;

Columbia Lumber Co. v. Agostino, 9 Cir. 184 F.2d

731, 733; cf. Fong v. James W. Glover, Ltd., 9 Cir.

197 F.2d 710, 712.

Phillips v. Employers Mutual

Liability Ins. Co. of Wis.,

239 F.2d 79, 80 n.2 (5th Cir. 1956)

And also:

This court is not required to dismiss every

appeal which does not meet the time limitations

of Rule 31. In Phillips v. Employers Mut. Liability

Ins. Co., 239 F.2d 79, 80 n.2 (5th Cir. 1956), the

court said that the late filing of briefs is “at most

[a] nonjurisdictional [defect] in the prosecution

of [t]his appeal, which we consider insufficient

to warrant dismissal.” See also King v. Laborers

Internat’l Union, 443 F.2d 273 (6th Cir. 1971);

United Staies v. Edwards, 366 U.S. 908, 87 S.Ct.

852, 17 L.Ed.2d 782 (1967); cf. Walker v. Mathews,

946 F.2d 814 (9th Cir. 1976) (late filing of record).

Marcaida v. Rascoe, <

569 F.2d 828, 830 (5th Cir. 1978) - 7

In his Motion to Reinstate, Appellate counsel pledged

to file his brief within fifteen (15) days of receipt of the

record, without extension (See Original Motion to Reins-

tate). Also, the calendars of October, November, Decem-

ber, etc., reveal that counsel has filed a score of appellate

12

briefs, rehearings, Writ for Petition of Certiorari, Petitions

for Discretionary Review, etc., in the United States

Supreme Court, several U.S. Courts of Appeals, Texas

Courts of Appeal and the Texas Court of Criminal

Appeals.

On the other hand, several circuits have adopted

stricter, invariable standards in favor of dismissal, Stotler

anc Co. v. Able, 837 F.2d 1425 (7th Cir. 1988) and Barber v.

American Sec. Bank, 841 F.2d 1159 (C.A.D.C. 1988). The

Petitioner asserts that these conflicts are significant and

worthy of consideration by this Court because this pro-

cedure of summary dismissals is not only a critical sub-

ject which directly concerns the functioning of the

judiciary, Young, supra, but is one that recurs often.

C. Argument on the Merits

In this case, Notice that the briefing schedule was

sent to trial counsel instead of appellate counsel and that

trial counsel instead of notifying appellate counsel filled

out an appearance form with appellate counsel as the

persons to notify. However, the Court of Appeals did not

notify appellate counsel nor did it submit the record as

previously requested. The first indication that something

was amiss was the notice of dismissal which unlike the

other documents was transmitted to appellate counsel.

Appellate counsel informed the Court that he had not

been notified and supplied sworn affidavits to that effect

attached to his Motion to Reinstate. To Counsel’s knowl-

edge, no contrary affidavits were received. Counsel con-

tends under these circumstances it was unjust and an

13

abuse of discretion to dismiss Petitioner’s appeal partic-

ularly under the circumstances where this appeal was

from a Summary Judgment out of a District Court case in

which other summary judgments had been certified and

appealed previously with briefs filed, etc. Counsel

believes this Court should not only reverse this decision

but issue a standard which should be that of abuse of

sound discretion instead of arbitrary or absolute discre-

tion. Counsel believes that this Court’s consideration and

resolution of this matter would aid the administration of

justice in the federal court of appeals.

¢

CONCLUSION AND PRAYER

WHEREFORE, THE ABOVE PREMISES CONSID-

ERED, Petitioner prays that this Court grant a Petition for

Certiorari to the United States Supreme Court and there-

after reverse the dismissal of her appeal in the United

States Court of Appeals for the Fifth Circuit and remand

this cause with instructions to reinstate this appeal.

Respectfully submitted,

CHARLES Louis RosBERTS

Attorney for Petitioner

Texas Bar No. 17000100

One Texas Tower

109 N. Oregor., Suite 1400

El Paso, Texas 79901

(915) 532-5475

la

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 91-2476

BRENDA JONES, Individually and

as Administratrix of the

Estate of Evan A.M. Jones,

Deceased,

Plaintiff-Appellant,

versus

PETTY-RAY GEOPHYSICAL

GEOSOURCE, INC., ET AL.,

Defendants-Appellees.

Appeal from the United States District Court for the

Southern District of Texas

(Filed Nov. 27, 1991)

CLERK’S OFFICE:

Pursuant to Local Rule 42.3, the appeal was duly

entered dismissed for want of prosecution for failure of

appellant to file brief within the time fixed by the

rules, this 27th day of November, 1991.

2a

GILBERT F. GANUCHEAU

Clerk of the United States Court

of Appeals for the Fifth Circuit

By: M. A. Lopiparo

Deputy Clerk

FOR THE COURT - BY DIRECTION

3a

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

OFFICE OF THE CLERK

November 27, 1991

GILBert F. GANUCHEAU Tet. 504-589-6514

CLERK 600 Camp STREET

New Or.eans, LA 70130

Jesse E. Clark, Clerk

U S District Court

515 Rusk Ave., Rm. 5300

Houston,TX 77002

No. 91-2476 JONES v. PETTY-RAY

EP 86 2179

XXX Enclosed to you only is a certified copy of the

judgment of this Court in the above case issued as

and for the mandate.

Enclosed to you only is a certified copy of the Rule

47.6 Decision in the above case issued as and for

the mandate.

The Court having denied the motion for stay of

mandate, enclosed to you only is a certified copy of

the judgment of this Court in the above case issued

as and for the mandate.

Having received from the Clerk of the Supreme

Court a copy of the-order of that Court denying

Certiorari, | enclose a certified copy of the judg-

ment of this Court in the above case, issued as and

for the mandate.

We have received a certified copy of an order of

the Supreme Court denying certiorari in the above

4a

cause. This Court’s judgment as mandate having

already been issued to your office, no further order

will be forthcoming.

Enclosed herewith are the following additional docu-

ments:

Copy of the Court’s opinion.

XXX Original record on appeal or review. 10 Volumes.

XXX Other original papers forwarded with record.__

Envelope 1 Box.

Bill of Costs approved by this Court. __ Copy

enclosed to counsel.

cc w/encl: Sincerely,

Mr. Charles Roberts GILBERT F.

Mr. Edward Hennessy GANUCHEAU, Clerk

Mr. Jon David ivey By: M. A. Lopiparo

Deputy Clerk

ci

5a

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 91-2476

BRENDA JONES, Individually and

As Administratrix of the

Estate of EVAN A.M. JONES,

Deceased,

Plaintiff-Appellant,

versus

PETTY-RAY GEOPHYSICAL

GEOSOURCE, INC., ET AL.,

Defendants-Appellees.

Appeal from the United States District Court for the

Southern District of Texas

(Filed Jan. 8, 1992)

ORDER:

IT IS ORDERED that appellant’s motion to reinstate

the appeal is DENIED.

/s/ Rhesa H. Barksdale

UNITED STATES CIRCUIT

JUDGE

6a

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 91-2476

BRENDA JONES, Individually and

As Administratrix of the

Estate of EVAN A.M. JONES,

Deceased,

Plaintiff-Appellant,

versus

PETTY-RAY GEOPHYSICAL

GEOSOURCE, INC., ET AL.,

Defendants-Appellees.

Appeal from the United States District Court for the

Southern District of Texas

ON SUGGESTION FOR REHEARING EN BANC

(Opinion none_,5 Cir, 198, F2d_)

( February 6, 1992 )

Before GARWOOD, HIGGINBOTHAM and BARKS-

DALE, Circuit Judges.

PER CURIAM:

(VW) Treating the suggestion for rehearing en banc as a

petition for panel rehearing, it is ordered that the petition

for panel rehearing is DENIED. No member of the panel

nor Judge in regular active service of this Court having

requested that the Court be polled on rehearing en banc

7a

(Federal Rules of Appeltat. °rocedure and Local Rule 35),

the suggestion for Rehearing En Banc is DENIED.

( ) Treating the suggestion for rehearing en banc as a

petition for panel rehearing, the petition for panel rehear-

ing is DENIED. The judges in regular active service of

this court having been polled at the request of one of said

judges and a majority of said judges not having voted in

favor of it (Federal Rules of Appellate Procedure and

Local Rule 35), the suggestion for Rehearing En Banc is

DENIED.

ENTERED FOR THE COURT:

/s/ Rhesa H. Barksdale

United States Circuit Judge

8a

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 90-2093

BRENDA JONES, Individually and

as Administratrix of the

Estate of EVAN A.M. JONES,

Deceased, > *>

Plaintiff-Appellant,

versus

PETTY-RAY GEOPHYSICAL

GEOSOURCE, INC., ET AL.,

Defendants,

TOTAL EXPLORATION, TOTAL SOUDAN,

and TOTAL COMPAGNIE FRANCAIS DES PETROLES,

Defendants-Appellees.

No. 90-2532

BRENDA JONES, Individually and as

Administratrix of the Estate

of EVAN A.M. JONES, Deceased,

Plaintiff-Appellant,

versus

PETTY-RAY GEOPHYSICAL GEOSOURCES, INC.,

ET AL.,

Defendants,

TOTAL EXPLORATION, TOTAL SOUDAN, and

TOTAL COMPAGNIE FRANCAIS DES PETROLES,

Defendants-Appellees.

9a

No. 91-2476

BRENDA JONES, Individually and

as Administratrix of the

Estate of EVAN A.M. JONES,

Deceased,

Plaintiff-Appellant,

versus

PETTY-RAY GEOPHYSICAL

GEOSOURCE, INC., ET AL.,

Defendants-Appellees.

Appeals from the United States District Court for the

Northern District of Texas

(Filed Feb. 5, 1992)

ORDER:

IT IS ORDERED that appellant’s reurged motion to

reinstate cause number 91-2476 and to transfer that cause

to the panel in No. 90-2093 is DENIED.

IT IS FURTHER ORDERED that appellant’s motion to

consolidate the above appeals is DENIED. (appeilant dis-

missed her appeal in No. 90-2533 in February 1991).

/s/ Rhesa H. Barksdale

United States Circuit Judge

10a

United States Court of Appeals

FIFTH CIRCUIT

OFFICE OF THE CLERK

ALBERT F. GANUCHEAU TEL. (504) 589-6514

CLERK 600 CAMP STREET

NEW ORLEANS, LA 70130

October 1, 1991

Mr. James F. Scherr

Attorney at Law

7

1 Texas Tower _

109 N. Oregon

El Paso, TX 79901

No. 91-2476 BRENDA JONES v. PETTY RAY GEOPHYSI-

CAL EP 86 2179

Briefing Notice. Pursuant to FRAP 12 you are hereby noti-

fied that the record on appeal has been filed. The brief for

appellant ana record excerpts are now due within forty

(40) days from this date. Enclosed is a checklist of rule

requirements for preparation and filing of briefs and

record excerpts.

Policy on Extensions. The Court is prepared to consider

cases on the merits promptly after briefs are filed. How-

ever, the Court will not know if the case requires oral

argument until all briefs are filed. So, a delay in briefing

is a delay in calendaring. For these reasons, we are under

instructions from the Court that where extensions are

requested they are to be sparingly given and only for

good cause. The ordinary busyness of counsel is not

considered good cause. Failure to have access to the

record will not be considered grounds for extending the

lla

time. Whether opposing counsel does not object has no

bearing on our determination to grant an extension.

Reply Brief. Cases are forwarded to the Court immediately

upon filing of appellee’s brief. Reply briefs must be filed

within the 14 day period fixed by the rules.

Dismissal of Appeals. Local Rule 42.3.2 allows the Clerk to

dismiss appeals without notice if the brief is not timely

filed.

/ The Record on Appeal cannot be sent until your

appearance of counsel form has been filed.

Very truly yours,

GILBERT F. GANUCHEAU,

CLERK

By M. A. Lopiparo

Deputy Clerk

cc w/encls.:

All Counsel of Record