Opposition Brief — Barnes v. Pierpoint

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FILED

No. 96-1205 APR 2 1997

OFFICE OF THE CLERK

In The

Supreme Court of the United States

—

October Term, 1996

BRIAN A. BARNES, ADMINISTRATOR OF THE ESTATE

OF DAVID L. PIERPOINT,

Petitioner,

VS.

NANCY PIERPOINT, FREDERICK TOWNSEND,

ADMINISTRATOR OF THE ESTATES OF GEOFFREY

PIERPOINT AND LAUREN PIERPOINT, DOLORES WILLIS,

ADMINISTRATRIX OF THE ESTATE OF STACY

BIORKANDER AND AS GUARDIAN AD LITEM OF KATIE

BOSKO AND SARA BOSKO, AND DOLORES WILLIS,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

GARRETT M. MOORE

Counsel of Record

STEPHEN JACQUES

MOORE, O’BRIEN, JACQUES

& YELENAK

Attorneys for Respondents

700 West Johnson Avenue

Suite #207

Cheshire, Connecticut 06410

(203) 272-5881

utz

_ WA cpellate

Services, inc. \

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TABLE OF CONTENTS

Page

Reasons for Denying the Writ .................... |

I. There Are No Compelling Reasons For Granting

The Petition For A Writ Of Certiorari To Review

A Remand Order Entered Pursuant To 28 U.S.C.

Bi NEES ey Fey Pe rie Speer |

REAR RS toy Seek 25 ee ae Gir a 6

TABLE OF CITATIONS

Cases Cited:

Layne & Bowler Corp. v. Western Well Works, 261 U.S.

Sl, a Os Gi Mes OT be Ms FAD cv cn i vcenecdce 5

National Labor Relations Board v. Pittsburgh S.S. Co.,

340 U.S. 498, 71 S. Ct. 453, 95 L. Ed. 479 (1951)

ith Adah sae T Oe EDAD CERES CODER ERLE ENO TKowes 5, 6

Pierpoint, et al. v. Barnes, 892 F. Supp. 60 (D. Conn.

STUNT Kes snake CA wht dcenchae Mendse ta hedbbiess 5

Rice v. Sioux City Memorial Park Cemetery, 349 U.S.

70, 75 S. Ct. 614, 99 L. Ed. 897 (1955) ......... 5

Thermtron Products, Inc. v. Hermansdorfer, 423 U.S.

es: es Sede SO GATED hs Ke daneevenieneneces 4,5

Things Remembered, Inc. v. Petrarca, 516 U.S. __, 116

S. Ct. 494, 133 L. Ed. 2d 461 (1995) ........... 4

Contents

Page

United States v. Constantine, 296 U.S. 287, 56 S. Ct.

£43, $0 L. Gd. 233 (3999)... :. 5... 5

Volvo of America Corp. v. Schwarzer, 429 U.S. 1331, 97

S. Ct. 284, 50 L. Ed. 2273 fn, POPPtT Teves 5

Statutes Cited: |

URE. § WANG votes ce , 23,45

we RD EID 6 ios a 1,2,4

Rule Cited:

Supreme Court Rule 10 ......................... 1, 3, 6

Other Authorities Cited:

Black’s Law Dictionary 94 (6th ed. ag SET 2

Black’s Law Dictionary 418 (6th ed. PE -kevivebu. 2

REASONS FOR DENYING THE WRIT

THERE ARE NO COMPELLING REASONS FOR

GRANTING THE PETITION FOR A WRIT OF

CERTIORARI TO REVIEW A REMAND ORDER

ENTERED PURSUANT TO 28 U.S.C. § 1447(c).

The petitioner’s request for a writ of certiorari to review a

remand order entered pursuant to 28 U.S.C. § 1447(c) should

be denied because there are no compelling reasons justifying

review. Whether or not to grant a petition for a writ of certiorari

is a matter within the Court’s discretion, and Rule 10 of the

Rules of the Supreme Court of the United States dictates that

such a petition will only be granted for compelling reasons.

Rules of the Supreme Court of the United States, Rule 10.

Rule 10, which governs the granting of petitions for writs

of certiorari, does not specifically define “compelling reasons”;

however, it enumerates various factors which, although not

controlling, illustrate the nature of the matters or issues which

are significant enough to warrant review. Rules of the Supreme

Court of the United States, Rule 10. None of the enumerated

factors or circumstances, with the exception of that involving a

conflict among decisions of the United States courts of appeals,

apply in this case. Further, as will be seen below, the fact that

United States courts of appeals may be divided on the issue

presented does not constitute a compelling reason for granting

this writ of certiorari.

The issue presented by this case, whether or not a remand

order based upon a decision regarding the removability of a

substantive claim is reviewable given the operation of 28 U.S.C.

§§ 1447(c) and (d), does not compel review. The issue does not

involve an important matter; a recent amendment to 28 U.S.C.

§ 1447(c) renders the issue presented in the petition moot.

Consequently, any conflict among the United States courts of

appeals on the issue is irrelevant. The fact that the Second

Circuit’s decision below might insulate some remand orders from

review and result in conflicts among the decisions of district or

appellate courts was contemplated by Congress and is therefore

not inappropriate. The operation of 28 U.S.C. §§ 1447(c) and

(d) by their very terms precludes review of the particular order

at issue. Finally, the issue is not of importance to the public but

only to the parties involved in this litigation and has been

rendered academic by the amendment to 28 U.S.C. § 1447(c).

Contrary to the petitioner’s assertion, the recent amendment

to 28 U.S.C.A. § 1447(c) renders the issue presented in his

petition moot. The Court of Appeals for the Second Circuit

interpreted the language of the subsection, which read “any

defect in removal procedure”, to include substantive as well as

purely procedural matters. Congress altered the language “any

defect in removal procedure” and replaced it with “any defect

other than lack of subject matter jurisdiction.” It cannot seriously

be argued that the phrase “any defect” does not encompass

substantive as well as procedural matters. The term “any”

commonly means “all” or “every” although in context it may

mean one or some. See Black’s Law Dictionary 94 (6th ed. 1990).

In the context of the statute it clearly means “all” or “every”.

Nothing in the term “defect” without a modifying or descriptive

adjective confines that term to procedural matters. See Black’s

Law Dictionary 418 (6th ed. 1990) (“Defect. The want or

absence of some legal requisite; deficiency; imperfection;

insufficiency.”).

The amendment to 28 U.S.C.A. § 1447(c) obviates all

questions regarding whether or not the subsection applies to

procedural as well as substantive matters. Consequently, any

question regarding the correctness of the Second Circuit’s

interpretation of the language “defect in removal procedure” is

moot. Although the petitioner argues that the continued

utilization of the word “defect” in the current version of the

Statute keeps the issue presented alive, his own argument

regarding the correct interpretation of the statute as it existed at

the time of the remand order belies this. Petitioner argues that

the Second Circuit erred in its interpretation of the phrase “defect

in removal procedure” because the language removal procedure

cannot be viewed to include substantive law matters. See

Petitioner’s Brief, p. 12.

- The petitioner’s argument that a conflict requiring resolution

exists among the courts of appeals with respect to the

interpretation of 28 U.S.C. § 1447(c) is unpersuasive. The fact

that a split of authority may exist among circuit courts does not

automatically elevate an issue to one deserving of Supreme Court

review. The conflict of decisions must involve an important

matter. Rules of the Supreme Court of the United States, Rule

10. Even then, the fact that a conflict exists among the courts of

appeals on an important matter is not controlling and is only

one of a variety of factors to be considered by the Court in

deciding whether to hear a matter. Rules of the Supreme Court

of the United States, Rule 10. As demonstrated above, the issue

presented in this case does not involve an important matter

because the issue has been rendered moot.

The fact that the result of the Second Circuit’s decision may

be to render certain classes of remand orders unreviewable is

not a compelling reason for granting the writ of certiorari in

this case. The petitioner argues that the Second Circuit’s ruling

requires review because its effect is to insulate many remand

orders from review, thereby relegating unfettered discretion to

the district courts on the remand issue. See Petitioner’s Brief, p.

14. This argument is ineffective. Such a result, should it occur,

does not vest the issue presented with such consequence as to

justify the review by this Court. Congress, in enacting 28 U.S.C.

§§ 1447(c) and (d), exnlicitly stated and thus expressly intended,

that many if not most remand orders (those based upon reasons

specified in 28 U.S.C. § 1447(c)) would be unreviewable, 28

U.S.C. §§ 1447(c) and (d). This Court has found those orders

not subject to review. Things Remembered, Inc. v. Petrarca, 516

U.S. __, 116 S. Ct. 494, 496-497, 133 L. Ed. 2d 461 (1995).

Congress, in drafting and passing the legislation which made

some remand orders unreviewable, did so intentionally, knowing

that in many cases the district courts would be the sole arbiter

of the remand issue. Thermtron Products, Inc. v. Hermansdorfer,

423 U.S. 336, 96 S. Ct. 584 (1976), dissent of Justice Rehnquist,

at 355. In support of the absence of reviewability by higher courts

is that protracted delays of litigation pending appellate review

of such orders is avoided. Congress, cognizant that erroneous

remand decisions would not thwart the litigants’ substantive

rights but merely require they be pursued in another forum, found

it preferable for erroneous remand orders to stand rather than

delay or disrupt litigation. Jd. at 355. The natural and considered

consequence of Section 1447(c) district court remand orders’

lack of reviewability is that conflicts would develop among the

decisions of different courts. The effect of which the instant

petitioner complains is exactly that which Congress intended

and which this Court has sanctioned. See Thermtron Products, —

Inc. at 345-346.

The operation of 28 U.S.C. §§ 1447(c) and (d) precludes

the review the petitioner seeks. This Court’s decisions in 7hings

Remembered, Inc. and Thermtron Products, Inc. leave no

question that any remand order entered by a district court based

upon lack of subject matter jurisdiction or upon a timely raised

defect in removal procedure is unreviewable. Things

Remembered, Inc. at 497; Thermtron Products, Inc. at 345-346.

Evaluation of the district court remand order at issue here clearly

discloses that the court determined that it lacked subject matter

jurisdiction because the claim did not arise under the

Constitution, treaties or laws of the United States and, therefore,

it remanded the matter to state court. Pierpoint, et al. v. Barnes,

892 F. Supp. 60 (D. Conn. 1995) and Petitioner’s Appendix, p.

27a. Because the basis of the remand order unquestionably fell

within the ambit of 28 U.S.C. § 1447(c), the remand order, even

if erroneous, is not subject to review. Volvo of America Corp. v.

Schwarzer, 429 U.S. 1331, 1334, 97 S. Ct. 284, 50 L. Ed. 2273

(1976) and Thermtron Products, Inc. at 351. Likewise, the

Second Circuit’s decision holding that the remand order was

based upon a “defect in removal procedure”, Petitioner’s

Appendix, p. 10a, is also within the language of 28 U.S.C.

§ 1447(c) and is not appealable. Volvo of America Corp. at 285

and Thermtron Products, Inc. at 351.

Finally, the issue in question lacks any broad implications

and is now, in fact, academic. Matters of significance only to

particular litigants do not compel review on a writ of certiorari.

National Labor Relations Board v. Pittsburgh S.S. Co., 340 U.S.

498, 502, 71 S. Ct. 453, 95 L. Ed. 479 (1951) citing Layne &

Bowler Corp. v. Western Well Works, 261 U.S. 387, 393, 43 S.

Ct. 422, 423, 67 L. Ed. 712 and Rice v. Sioux City Memorial

Park Cemetery, 349 U.S. 70, 74, 75 S. Ct. 614, 99 L. Ed. 897

(1955) (“[This Court] does [not] sit for the benefit of the

particular litigants.”). There is no evidence that other existing

or future litigants will be significantly, if at all, impacted by the

issue presented here. Nor does the petitioner offer evidence of

the number of persons, if any, whose liability or litigation will

remain uncertain or be effectively stayed until this issue is

resolved. Therefore, the issue is not a proper one for review on

a writ of certiorari. United States v. Constantine, 296 U.S. 287,

290, 56 S. Ct. 223, 80 L. Ed. 233 (1935). Because the resolution

of the issue presented does not have far reaching effects, it is an

- 6

inappropriate subject for review upon a writ of certiorari.

National Labor Relations Board at 502. As established above,

the issue presented has been rendered moot. It is not the function

of the Court to decide academic, scholarly or episodic questions.

Rice at 74, The petition should be denied.

CONCLUSION

“Vhe petition for writ of certiorari should be denied because

there are no compelling reasons, as required by Rule 10 of the

Rules of the Supreme Court of the United States, for granting

it. The issue of which the petitioner seeks review does not present

an important matter, and the present posture of the case is

precisely that intended by the Statutory and case law and

contemplated by Congress.

Respectfully submitted,