# Opposition Brief — Barnes v. Pierpoint

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0183%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1997
- **Citation:** 520 U.S. 1209

## Text

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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. \

(800) 3 APPEAL « (600) 5 APPEAL « (800) BRIEF 21

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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

ii
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

1

REASONS FOR DENYING THE WRIT
L.

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

2

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

3

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,

4

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.

5

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,

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0183%3A2. Public record. Not legal advice.