Petition for Writ of Certiorari — Fulfree v. Manchester

Supreme Court, U.S.

ee ee

961560 DEC 1 3 19%

No.

e OFFICE OF THE CLERK

In The

Supreme Court of the United States

eedadeiiaaieniammmenaniiin : ammamiiaaemmamaa

October Term, 1996

ELLEN P. FULFREE,

Petitioner,

against

ROBERT MANCHESTER and

MANCHESTER LAW OFFICES,

Respondent,

Petition for a Writ of Certiorari to the United States Court of

Appeals for the Second Circuit

PETITION FOR WRIT OF CERTIORARI

MORTON N. WEKSTEIN

Attorney for Petitioner

612 E. Grassy Sprain Road

Yonkers, New York 10710

(914) 961-7500

AEWA sivas Ag whitey

Statement under Rule 14. subd 1(a)

The questions presented for review are as follows:

1. Whether an order of district court denying remand of a case

commenced in state court is reviewable by the United States Court

of Appeals.

2. Whether a district court has power to deny remand where

there is a total absence of a federal question in the complaint, two

notices of removal and in the decision of the District Court.

3. Whether 28 US Code 1332(A116) now applies to removal

and remand of cases commenced in state courts.

4. Whether District Court exceeded its powers by granting

leave to serve an amended notice of removal 136 days after the ser-

vice of the summons and complaint.

5. Whether there is conflict in the decisions of the US Court of

Appeals of the 2nd Circuit in other cases with that court’s disposi-

tion in the instant case, and whether there is conflict between the

instant disposition and decisions of the other US Courts of Appeal.

6. Whether there were not substantial procedural errors in

both the notice of removal and the “amended notice of removal”.

7. Whether the rendering of summary disposition which pro-

hibited publication of the same and its use as stare decisis deprived

petitioner of due process and equal protection of law.

Statement under Rule 14, subd 1 (b)

All parties involved in this action are correctly named in the

caption hereof. There are no parent companies; there are no wholly

owned subsidiaries. Appeal is from US Court of Appeals, 2nd

Circuit.

1

Contents

Statement under Rule 14 subd 1 (c)

TABLE OF CONTENTS

Page

Statement under Rule 14 subd 1 (d) ......... ccc ccc cvcscecs 5

Statement under Rule 14 subd 1 (e) ................ceceeeee 5

Statement under Rule 14 subd le (i) ...................0006. S

Statement under Rule 14 subd le (ii) ......................5- 6

Statement under Rule 14 subd le (iv) ......................4. 6

Statement under Rule 14 subd 1 (if)... .. 2.0.0... ec ccc c ees 6

Statement under Rule 14 subd I (g)............. cs ccevcccces 7

Argument pursuant to Rule 14 subd I(h).................... 8

TABLE OF CASES AND AUTHORITIES

Page

Alexander v. Electronic Data Systems, 13 F 3d 940........ 12,19

Anderson v. American Airlines, 2 F 3d 590 ................ 14

Bailey v. Norfolk and Western Rwy Co., 828 F.Supp. 218 ..... 15

Beech v. Prudential, $45 F.Supp. 829 .........ccceccceceees 19

Bender v. Prudential Ins. Co., 860 F.Supp. 610.............. 15

Biscup v. People of the State of N-Y., 129 F.Supp. 765 ........ 19

Contents

Page

Bradwell v. Silk Greenhouse, 828 F.Supp. 940 .............. 19

Burns v. Standard Life Insurance, 135 F.Supp. 940 .......... 19

Byrnes v. Faulkner, 362 F.Supp. 804, aff'd 550 F2d 1303...... ll

Carr v, Anewad, T95 FOO. FG os kc asvce ts caseevpvacss 14

Castle v. Laurel Creek, 848 F.Supp. 62 ..........000cccsevee 19

Caterpillar Inc., v. Williams, 482 U.S. 386 ...............66. 14

Chandler v. O’Bryan, 496 F2d 403, cert den 419 U.S. 986

OS GLX, BEG Si be Te Oe Be 86 45 68 od bine eee he eakaeitirs 9

Charter Fairmount Institute v. Cella Health Strategies,

an hae, | ng nr ee a ange ewig mine fee Gre tary ar ane eee” 15

Chittick v. Farmers Insurance Co., 844 F.Supp. 1153 ........ 14

Cook v. Yorktown Steel, 770 F 2d 1272 .............ccccee: 14

Costantini v. Guardian Life, 859 F.Supp. 89 ................ 15

Devoy v. Craig, 196 App. Div. 564, 178 N.Y. Supp. 478,

SUUMTGNE: ZOE PEs COO so xd Share ep Aw Re SrA SAa Ree ae Ca bates 22

Encoder Communications v. Telegran, 654 F 2d 198 ......... 11

Franchise Tax Bd. of California v. Construction

SN Ee Oe od 54 kc bie DA hae ta aah ka CaS 14,15

Contents

Page

Gully v. First National Bank, 291, U.S. 109, 57S.Ct.96 ...... 10

Hamilton v. Aetna Life and Casualty Co.,5 F 3d 642 ........ 1]

Hampton v. Mow Sun Wong, 426 U.S. 88, 96S.Ct. 1895 ..... 16

Bm RE BD” Gp anne yet ey ett 15

Hunneman Real Estate Corp. v. Estate Middlesex Assn.,

OD FI, FG ao ss acd keke nn Oar er eeR aR eae eae bees 14

Hunter v. Greenwood Trust, 856 F.Supp. 207 ............... 14

La Farge Copper v. Venezolana De Cementos, 31 F 3d 70 .... 12

Lang v. American Electric Power Co., Inc. 785 F.

eC Bi paren rae rap aetna mua PEAT Soe yah 13

Lamston v. Firestone, 724 F.Supp. Sil... ces vec cececcnans 14

Lyster v. First National Bank, 829 F.Supp. 1163 ............. 14

Martin v. Gimieteue Co., Inc. 756 F.Supp. 524 ........ 13

Martin v. Kernal County, 561 F.Supp. 726.................. 13

Minot v. Eckhardt-Minot, 13 F 3d 590..................05- 11

Moore v. TnBiaee, 766 F.Supp. 1351 oo. ccc ccccencccscvess 13

Moralez v. Meat Cutters Local 13, 778 F.Supp. 368 .......... 13

Contents

Page

Morgan Guaranty Trust v. Republic of Palau, 24 F2d 1237.... 11

Nelson v. United Artists, 835 F.Supp. 844 .............0008- 15

Nixon v. Warren Communications, 435 US 589,98 S.Ct.

1506, F5 he G Me s Ce Wie aKa abe eavekennseeetee oreees 17

Nichols v. Southeast Stealth Plan, 859 F.Supp. 844 .......... 14

Oldham v. American Civil Liberties Union, 849 F.Supp.611 ... 14

PAS v. Traveler’s Insurance Co., 7 F 3d 349

Coe CCU, TRGB R. nvidia on ho che CN AR CA as eens 12

Pavelic & LeFlore v. Marvel Entertainment Group, 493

ELBA: ook snc han 00k ee deena daa a eae oe 20

Pitchford v. Alladin Steel, 828 F.Supp. 610.................. 14

RG Barry Corp. v. Mushroom Makers, Inc., 612 F 2d 65 ..... 12

State of Minnesota v. International Association of

Eatrepreneurs, 858 F.Supp. 937 2... .cccceccescesccocccces id

Sheeran v. General Electric, 573 F 2d 293

(9th Circuit Cert den 444 US 868) 12

Walsh v. Seagull Energy, 836 FSupp. 411................... 14

Weinberger v. Weisenfeld, 420 U.S. 636, 95 S.Ct. 1225........ 16

Wesley v. Mississippi Transport, 857 F.Supp. 523............ 19

Contents

Page

Wilson v. Republic Steel, 257 U.S. 92, 42

£0 ARN Ee er eye ENT Laie Per ER ae Eee Pan 12

World Omni Leasing, Inc., 764 F.Supp. 1442................ 13

Fourteenth Amendment to the US Constitution ........... 6,16

Fifth Amendment to the US Constitution ................. 6,16

Se NE FET PAL das Salone veh Vic teeters eeuhane 6,10,12,21

Ro Ef Mn ay DARE rot ee Gaye AE Ot a 6,8,10

Rule 11 of the Rules of Civil Procedure ................ 6,19,20

i ef Sey ar reece Cee errr ee be eee 6,10,19,21

eM EEE 5 bc COR Ae DETR A USES Wado e sn ORR RA RCE ORES 6

rT eG 7 gered paemarr rad Speen argent ey wer cy Pb are 6,8,10,12

ER RIE COR SRL A io Sha ah ba dues eh eONS Cone 6,16

NY State Constitution Art 6 §6subde ................... 6,22

PAE RE Fee cewedakicd wabacebuenadCibieseeuss 5,6

Pe SUES 6 6-05) CRP OE Ke DORUK Ha aACA AS is eeNK ER EAS 6

SP RE LOE bois ash bake cba Rabie euecuseemedades 6,8,12

AGMA AOU. 0 coda acpancncissenereseceabvetwarcavcnl 6

Statement under Rule 14 subd 1(d)

Petitioner has long since written to the Clerk of the District

Court, Southern District of New York, asking if the decision of the

District Court has been published and Petitioner has received no

response. Petitioner has no knowledge on whether it has been pub-

lished. The opinion of the District Court appears in the appendix at

A 5.

The summary disposition of the US Court of Appeals is

prohibited to be published and thus does not have, and will not

ever have, a citation. It appears herein in the Appendix at A94.

Statement under Rule 14 subd 1 (e)

i) The decision and order of the District Court is dated January

2, 1996(A 5 ). The summary disposition in the US Court Of Appeals

is dated October 4, 1966 (A115).

Statement under Rule 14 subd Ie (ii)

Not applicable.

Statement under Rule 14 subd le (iv)

Jurisdiction exists under 28 US Code 1254 and 28 US Code

6511 and Rule 10 of the Rules of the United States Supreme Court,

and

28 US Code 2101 (e)

28 US Code 1254 (i)

28 US Code 2101

Rules of the US Supreme Court-Rule 10(a) and (c)

Statement under Rule 14 subd 1(f)

28 US Code 1331

28 US Code 1332

28 US Code 2101

28 US Code 1254

Rule 11 of the Federal Rules of Civil Procedure Fourteenth

Amendment of the US Constitution Fifth Amendment of the US

Constitution

28 US Code 1441

28 US Code 1443

28 US Code 1446

28 US Code 1447

28 US Code 1738

28 US Code 2101

N.Y.S. Constitution Art. 6 §6 subd e

28 US Code 1254

Statement under Rule 14¢(i)

In the state court matters did not set beyond the pleadings

stage before removed.

Statement under Rule 14¢(ii)

It is the contention of the Petitioner that the court of first

instance, District Court, SDNY, had no jurisdiction of the subject

matter of this action, and lacked subject matter jurisdiction to deny

the motion to remand to state court.

Statement under Rule 14 subd g

The plaintiff on August 15, 1995 commenced action in the

Supreme Court Westchester County against two defendants, a nat-

ural person domiciled in Vermont and a corporation believed to be

organized and existing under the laws of Vermont. Service of the

summons and complaint, according to defendant, was accom-

plished August 23, 1995. (All) The plaintiff is, and was, a resident of

the City of Yonkers, County of Westchester and State of New York.

(A12, Al6)

Defendants served a notice of removal to the United States

District Court for the Southern District of New York, Foley Square,

New York City, dated September 11, 1995. (A9) On or about

October 2, 1995 Plaintiff moved in the District Court for the

Southern District of New York for an order remanding the case to

the Supreme Court Westchester County, sitting in White Plains,

New York. (A4 ) The District Court denied the motion to remand in

a memorandum decision and order dated January 2, 1996. (AS) In

the said order defendant was granted leave to serve an amended

notice of removal. Defendants served an amended notice of removal

dated January 6, 1996, received on or about January 9, 1996. (A111)

Plaintiff urges, even aside from defects in both notices to remove,

that since there is no federal question, the District Court was without

jurisdiction to make an order denying remand.

It is submitted that it was beyond the power o9f the District

Court, and abuse of discretion, to grant defendarit leave to serve a

new and amended notice of removal by order dated January 6, 1996.

Also, more importantly, plaintiff urges that when there is no federal

question presented under 28 US Code 1331, there is no power in the

District Court to remove and no power to deny remand to the state.

Further, since there is no federal question present, that is, no

question of the kind set forth in 28 US Code 1321, the diversity of cit-

izenship is entirely irrelevant to the questions of removal and

remand, and has no tendency to support removal from state court to

federal court.

Argument under Rule 14 subd h

POINT I

THE INSTANT APPEAL IS AN APPEAL AUTHO-

RIZED BY STATUTE AND RY TtIE DECIDED

CASE LAW, AND IS ONE NOT PROHIBITED BY

SUBDIVISION (d) OF 28 US CODE 1447, AND IS IN

ALL RESPECTS A FINAL ORDER.

28 US Code 1447 subd.(d) provides:

(d) An order remanding a case to the State court from

which it was removed is not reviewable on appeal or oth-

erwise except that an order remanding a case to the State

court from which it was removed pursuant to section

1443 of this title shall be reviewable by appeal or other-

wise.

Section 1443 deals with Civil Rights cases, only, and need not detain

us.

An order granting removal is reviewable by the Court of

Appeals whereas an order remanding an action is not reviewable.

Chandler v. O’Bryan, 496 F2d 403, cert. den 419 U.S.

986, 95 S.Ct. 245, 42 L Ed 2d 194 rehearing denied 420

USS. 913, 95 S.Ct. 838, 42 L Ed 2d 845.

The cited case dates from 1974, before the 1988 amendment.

Before 1588, removal was accomplished by a petition to the District

Court which was granted the power to grant or deny such a petition.

Now removal is accomplished unilaterally by a notice served by

defendant’s attorney. There is no longer an appeal from an order of

removal sirice it is not an order but simply a paper authored by one

side, never sanctioned by the court. The only remedy for a plaintiff

now is a motion to remand which serves the same function as the

prior appeal from the granting of an order of removal, which was

specifically allowed by the statute and by the holding of Chandler v.

O’Bryan, supra.

If, indeed, an order of the Court to remove from the state court to

the District Court was reviewable, a fortiori, the unilateral act of

serving a mere notice signed by a party’s lawyer must be subject to

review. The only way that such a fait accompli can be tested under

the present practice is by a motion to remand to state court. If an

10

order granting removal duly entered by the District Court was

reviewable under the former practice, a fortiori, now, a unilateral

notice by a litigant is reviewable. Therefore a motion to remand

serves the same function as serving papers in opposition to the for-

mer petition for removal. By simple analogy, it is clear that if an

order of removal was reviewable before 1988, an order denying

remand is now reviewable. Removal from state court to District

Court remains reviewable, irrespective of the manner in which

review is accorded.

Otherwise a plaintiff would be subject to an absolute power

vested in his adversary, whose exercise could not be reviewed by any

court or judge. Such a proposition would raise constitutional ques-

tions with which the courts and litigants can well afford to live with-

out.

The December 9, 1991 revision of 28 US Code §§ 1441-1447(A

118) was a portion of the enormous overhaul of the federal judicial

system, whose stated purpose was to end resort to federal courts in

cases which had no claim to federal attention, except diversity of cit-

izenship; in other words cases where there was no federal question to

be decided. This accounts for the specific direction of § 1447(d)

supra which carefully prohibits review of cases granting remand but

just as carefully leaves in place the right of review in cases denying

remand.

By its plain language it prohibits review of an order granting

remand (except in Civil Rights cases) but leaves intact the right of

review of orders denying remand.

An order granting remand relieves the federal courts of the

burden of processing appeals in cases, of which the district courts

lack jurisdiction.

A horrible example which demonstrates the need for such

amendment is Gully v. First National Bank, 291 , U.S. 109, 57 S.Ct.

96, where a case was remanded to state court after trial and judgment

a i RE TS

11

and after appeal to the U.S. Court of Appeals and appeal to the U.S.

Supreme Court. There are many other cases where remand is grant-

ed after judgment. This accounts very plainly for the desire of

Congress and the revisers to be sure that all cases which did not con-

tain a genuine federal question be remanded and be remanded

promptly.

To make assurance doubly sure, 28 US Code 1447 subd (c) pro-

vides in part as follows:

“(c) If at any time before final judgment it appears that

district court lacks subject matter jurisdiction, the case

shall be remanded...” (emphasis added)

This is a very plain command that motions to remand, for lack

of subject matter jurisdiction, shall be made as early as possible, to

assure a remand before the expenditure of District Court time on

motions, discovery, and judgment, and possible appeals. Such a

command plainly includes a command that removal and remand are

to be disposed of at the outset if possible, including appeals from

orders denying remand.

Cases in which the U.S. Court of Appeals of the Second Circuit

accepted and decided cases on appeal from matters of removal are

the following:

Encoder Communications, Inc. v. Telegran, Inc., 654 F

2d 198 (2nd Circuit 1981);

Hamilton v. Aetna Life, 5 F 3d 642 (2nd Circuit 1981);

Minot v. Eckhardt-Minot, 13 F 3d 590 (2nd Circuit

1994);

Morgan Guaranty Trust v. Republic of Palau, 24 F 2d

1237 (2nd Circuit 19911);

Byrnes v. Faulkner, 362 F. Supp. 804, affirmed 550 F 2d

1303 (D.C.NLY. affirmed by Court of Appeals for the

2nd Circuit);

12

La Farge Copper v. Venezolana De Cementos, 31 F 3d

70 (2nd Circuit 1994);

R.G. Barry Corp. v. Mushroom Makers, Inc., 612 F 2d

65 (2nd Circuit 1979),

Relevant also is Wilson v. Republic Steel, 257 US 92, 42

S.Ct. 36.

This writer is prepared to cite 23 cases in other circuits where

appeals were heard in removal-remand cases but page limits and dis-

cretion demand that this petition cite a few representative cases:

PAS v. Travelers Insurance Co., 7F 3d 349 (3rd Circuit);

Sheeran v. General Electric, 573 F 2d 293 (9th Circuit,

Cert den 444 US 868);

Alexander v. Electric Data Systems, 13 F 3d 940 (6th

Circuit 1994).

Even aside from the other grounds urged for reviewability of

removal-remand controversies is the fact that a removal order is a

final determination since it extinguishes forever the case com-

menced in the courts of the State of New York, commenced there as

a matter of right.

Subdivision (c) of 28 US Code 1441 (A119) is different from

anything in the law before December 9, 1991 in thrust and applica-

tion. Before there is discretion (and jurisdiction) to remand here

there must be a “§1331” question combined with “otherwise non-

removable claims.” If there is no “§1331” question, this section gives

no authority to a defendant to remove a case to federal court, and no

discretion or power in a district court to deny a remand to the state

court from which the case came.

Where however, there are combined both a “federal question”

and non removable claims” the District Court has discretion to

voeae

13

“determine all issues therein, or, in its discretion, may remand all

matters in which State law predominates”. If there is no federal ques-

tion, there is no discretion in District Court to “determine all issues

therein, or, in its discretion, may remand all matters in which State

law predominates.” If there is no federal question, there is no dis-

cretion in District Court to deny remand.

In the instant case there is no suggestion that there is even the

smallest federal question presented. Neither side has made the

faintest suggestion that any federal question of any kind is here pre-

sented. Even more compelling the notice of removal fails to show, or

even hint, that there is a federal question presented. The decision of

the District Court fails to find any federal question. Under such a cir-

cumstance there is no power in anyone to remove the case, or to

deny remand to state courts. (A 11 , A 5)

Cases decided since the 1991 amendment have uniformly

applied the rule that, even where there is a federal question, if ques-

tions of state law predominate, the matter must be remanded to the

state court from which they were removed.

Lang v. American Electric Power Co., Inc., 785 F. Supp.

1331;

Moralez v. Meat Cutters Local 13, 778 F. Supp. 368;

Moore v. Di Blase, 766 F. Supp. 1331;

World Omni Leasing, Inc., 764 F. Supp. 1442;

Martin v. Drummond Coal Co., Inc., 756 F. Supp. 524;

Martin v. Kernal County, 561 F. Supp. 726 (pre 1991).

A District Court lacking subject matter jurisdiction (§1331

question) must remand the matter to the state court.

14

Caterpillar, Inc. v. Williams, 482 U.S. 386;

Franchise Tax Board of California v. Construction

Laborers, 463 U.S. 2;

Nichols v. Southeast Health Plan, 859 F. Supp. 844;

Oldham v. American Civil Liberties Union 849 F. Supp.

611;

Chittick v. Farmers Insurance Co., 844 F. Supp. 1153;

Blunter v. Greenwood Trust, 856 F. Supp 207.

Tort actions and contract actions under state law are not mat-

ters involving federal questions, even where the genesis of such

actions rests upon federal rights, restrictions and/or prohibitions.

Lyster v. First National Bank, 829 F. Supp. 1163;

State of Minnesota v. International Association of

Entrepreneurs, 858 F. Supp. 937;

Hunneman Real Estate Corp. v. Eastern Middlesex

Assn., 860 F. Supp. 906;

Carr v. Axelrod, 798 F. Supp. 168 (E.D. Dist. N.Y.) aff'd

996 F2d 302, cert. den. 114 S.Ct. 334, 126 L Ed 2d 308;

Lamston v. Firestone, 724 F. Supp. 511;

Walsh v. Seagull Energy, 836 F. Supp. 411;

Anderson v. American Airlines, 2 F 3d 590;

Pitchford v. Alladin Steel, 828 F. Supp. 610;

Hunter v. Greenwood Trust, 856 F. Supp. 207;

15

It is an essential prerequisite of removal to the District Court

that the federal question must be pleaded in the complaint, that it

must be substantial, and it may not be iiiferred from the contents of

the answer.

Caterpillar v. Williams, 482 U.S. 386;

Cook v. Yorktown Steel, 770 F 2d 1272;

Franchise Tax Board of California v. Construction

Laborers, supra;

Charter Fairmont Institute v. Cella Health Strategies,

835 F. Supp. 233;

Bender v. Prudential Ins. Co., 860 F. Supp. 610;

Pitchford v. Alladin Steel, Inc., 828 F. Supp. 610;

Bailey v. Norfolk and Western Rwy. Co., 828 F.Supp.

218;

Costantini v. Guardian Life, 859 F. Supp. 89;

Hill v. Marstan, 13 F 3d 1548;

Nelson v. United Artists, 835 F. Supp. 844;

In the instant case there is not one word in the complaint

implying that there is even a hint of a federal question present. The

instant case is based entirely upon New York State law of torts and a

New York State statute dealing with certain forms of malpractice by

lawyers.

EP EAE AA Nahi Dg BOM BOP RAP ILE IEE, ARLE TOP x

Paragraph 3 in the original Notice of Removal and paragraph

3 in the amended Notice of Removal both say:

16

“3. The ground for removal is that diversity jurisdiction

exists, as there is complete diversity of citizenship and the

amount in controversy exceeds the sum of $50,000.00.”

The District Court relied upon the same grounds. (A6)

Diversity of citizenship is still good ground for commencing suit in

federal court, but it is no longer a ground for removal from a state

court in the absence of a question defined in 28 US Code 1331.

While it would not matter if there were such a suggestion in

defendant’s answer or in the notice of removal, it is most interesting

and conclusive that neither of those utterances by defendant deal

with any issue which could possibly be deemed a “federal question”.

POINT II

THE DISPOSITION OF PLAINTIFF’S APPEAL BY

THE U.S. COURT OF APPEALS DEPRIVES PLAIN-

TIFF OF DUE PROCESS OF LAW AND OF EQUAL

PROTECTION OF LAW.

Both the Fifth Amendment and the Fourteenth Amendment of

the U.S. Constitution now guarantee due process of law and equal

protection, and as they are now interpreted, these rights are guaran-

teed not only against the action of the several states, but against

action by the United States Government itself.

28 US Code 1738 (A 123)

Hampton v. Mow Sun Wong, 426 U.S. 88, 96 S.Ct. 1895;

Weinberger v. Weisenfeld, 420 U.S. 636, 95 S.Ct. 1225.

The summary disposition by the US Court of Appeals in this

case dated October 4, 1996 deprives plaintiff, both of due process of

law, and of equal protection of law. (A 115 ) It provides:

17

THIS SUMMARY ORDER WILL NOT BE PUB-

LISHED IN THE FEDERAL REPORTER AND

MAY NOT BE CITED AS PRECEDENTIAL

AUTHORITY TO THIS OR ANY OTHER COURT,

BUT MAY BE CALLED TO TIME ATTENTION OF

THIS OR ANY OTHER COURT IN A SUBSE-

QUENT STAGE OF THIS CASE. IN A RELATED

CASE, OR IN ANY CASE FOR PURPOSES OF COL-

LATERAL ESTOPPEL OR RES JUDICATA.

There is no rational basis for using such a summary disposition

instead of the ubiquitous “Affirmed without opinion”. There is a dis-

tinction between the two but not a rational one. The distinction is

that the Court of Appeals panel did not have enough faith in the cor-

rectness of this result to expose it to the view of other courts, of the

members of the bar, federal and state, of federal and state officials,

and of the public generally.

This entire matter of secrecy by courts and its invasion upon

the common law right to know of the public the contents and records

of court proceedings has been dealt with in the case of Richard M.

Nixon v. Warren Communications, 435 US 58, 8 S.Ct. 1306, 55 L Ed

2d 570, dealing with the famous presidential tapes. There were four

dissenting justices who wrote ihree dissenting opinions. All of the

four opinions (majority and dissents) recognized that there is a com-

mon law right in the public generally to have access to judicial

records. Justice Marshall described it as “a precious common law

right, one that predates the Constitution itself.” There the Court

denied access to the tapes (1) because of the terms of a special enact-

ment dealing with them, The Presidential Recordings Preservation

Act and (2) more importantly because the content of the tapes had

long since been disseminated to the general public by radio and tele-

vision, and the Communications Co. sought them only for commer-

cial purposes, and not to further any purpose connected with the

public’s right to know the contents of the court’s records.

This holding does not diminish the public’s right to know. On

the contrary it reinforces it. What is done in the instant case, the use

18

of a secret disposition, is not only foreign to the holding of Nixon, it

is a procedure dangerous to our whole democratic structure.

Where there is an overpowering reason for sealing some

records, most typically a case of multiple rape of a young female, the

Court held that the sealing of the record or parts thereof must be per-

formed by the Court which is the custodian of the records, to wit, the

trial court.

POINT III

THE COURT BELOW LACKED POWER TO

GRANT LEAVE TO SERVE AN AMENDED

NOTICE OF REMOVAL UNDER TIME CIRCUM-

STANCES OF THIS CASE, SO THAT SUCH AN

AMENDED NOTICE WAS SERVED 139 DAYS

AFTER TtlIE SERVICE OF THE COMPLAINT

WHICH STARTED TIME RUNNING OF TIME 30

DAYS PERMITTED BY LAW FOR TFtE SERVICE

OF A NOTICE OF REMOVAL.

The District Court herein held that there is no power in the

District Court, in the face of a fundamental defect, to extend the 30

day time limit for serving a notice of removal. Lack of jurisdiction is

certainly a fundamental, fatal flaw and is a matier of great sub-

stance. In addition, the notice of removal and the amended notices

of removal are deficient as a result of the fact that both bear the same

blemishes. It is submitted that all of the defects in the notices of

removal are fundamental.

28 US Code 1446 (a) provides that a notice of removal shall be

“signed pursuant to Rule 11 of the Federal Rules of Civil Procedure.

(A119 )Subdivision (b) of the same section provides that a notice of

removal must be served within 30 days after defendant receives “a

copy of the original pleading.” (All9 )

Use of the word “shall” shows that compliance is mandatory

and that compliance was not intended to be grade as to which are

grave and which are middling and which are slight.

Sel Wis Set seer ricoh

19

Holding that the 30 day requirement is mandatory are:

Burns v. Standard Life Insurance, 135 F. Supp. 904;

Biscup v. People of the State of N-Y., 129 F. Supp. 765

(W.D. NY);

Castle v. Laurel Creek Co., 848 ©. Supp. 62;

Bradwell v. Silk Greenhouse, 828 F. Supp. 940.

Very important here, are the holdings that the policy of the law

is against removal, and that all questions on remand, must be

resolved against the person seeking removal to Federal Court.

Beech v. Prudential, 845 F. Supp. 829;

Alexander v. Electronic Data Systems, 13 F. 3d 940;

Wesley v. Mississippi Transport, 857 F. Supp. 523.

All of the defects relied on by plaintiff in its motion to remand

are substantial. Most astonishing is that even in the “amended notice

of removal”, the defendant failed to mention, or suggest, or even

hint, at the presence of a federal question in plaintiff's complaint.

(A44)

Compliance with Rule 1] is mandatory in the drafting of a

notice of removal: §1446(a) of title 28 US Code requires that the

notice of removal shall be signed in the manner required by Rule 11

of the Rules. (A122)

It is immediately apparent that signing by an individual attor-

ney “in the attorney’s individual name” is designed to perform the

office formerly accomplished by a verification under oath in a plead-

ing, or in an affidavit.

The United States Supreme Court has decided the very ques-

20

tion raised in this discussion in Pavelic & LeFlore v. Marvel

Entertainment Group, 493 U.S. 120.

Pavelic and LeFlore was a law partnership. LeFlore, a partner,

signed several papers as follows:

“Pavelic and LeFlore

By (s) Ray L. LeFlore

A Member of the Firm

Attorneys for the Plaintiff”

The Court held that the fact that LeFlore signed explicitly for

the firm was of no consequence since Rule 11 says “that the paper

must be signed by at least one attorney of record in the attorney’s

individual name” (Emphasis in the original).

On page 126 the Court said as part of its holding the following:

“The purpose of Rule 11 as a whole is to bring home to

the individual signer his personal, and non-delegable

responsibility.”

Relative to the matter of Mr. Adams signing as “Associated

with the firm” the Court said at page 127:

11. Moreover, the psychological effect aside, there will be

greater economic deterrence upon the signing attorney,

who will know for certain that the district court will

impose its sanction entirely upon him, and not divert part

of it to a partnership of which he may not (even he is only

an associate) be a member, or which (if he is a member)

may not choose to seek recompense from him.

Mr. Adams as an associate was not the attorney of record, nor

part of the attorneys of record.

It is worthy of note that in the original notice of removal Mr.

Adams’ signature consists only of a capital “M” with no surname or

sree

uh ahwiticis

pabrcten’ tibial | atone taste?

ny eRe ae a OD Oy Ee ra oe

21

no initial designed to indicate a surname. (A10, A13) This was clear-

ly not even a colorable effort to comply with Rule 11. (A 122)

The defects in the notice of removal which are essential matiers

of substance are not remedied in the so-called amended notice of

removal and are as follows: (1) lack of any showing of subject matter

jurisdiction discussed above (2) failure to sign in a manner mandat-

ed by Rule 1i of the Federal Rules of Civil Procedure (3) failure to

designate the Westchester (White Plains) Division of Southern

District of New York (4) failure of defendant to serve the Clerk of

the County of Westchester, and make proof of such service upon

said Clerk, and failure to identify him by name.

1. Lack of subject matter jurisdiction has already been

discussed.

2. The signature in the notice of removal and in the amended

notice of removal fail to comply with Rule 11 of the Rules of Civil

Procedure, which compliance is mandatory in a notice of removal

under §1446(a) of title 28. (A 119)

3. The notice of removal is directed to “the Clerk of the Court”,

a title which does not exist in any Supreme Court of the State of New

York and does not identify by name the person served.

There are many clerks in the courtrooms of the Supreme Court

of Westchester County, all of them clerks of various parts of Special

Terms or Trial Terms or any extraordinary term created. There is no

such person in existence who wears, or who is entitled to wear, the

title “Clerk of the Court” or “Clerk of the Supreme Court”.

The Constitution of the State of New York provides in its

Article 6 §6 subd. e:

The clerks of the several counties shall be clerks of the

supreme court, with such powers and duties as shall be

prescribed by law.

22

The clerks of the various parts of the Court are simply deputies

appointed by the County Clerk himself, and the Clerk must act in his

capacity as is prescribed by the constitution and may not appoint

anyone to act during his absence, not his deputy or anyone else.

Devoy v. Craig, 196 App. Div. 567, 178 N-Y. Supp. 478

aff'd 231 NY. 186.

Therefore the failure to show on the notice of removal that it

was directed to the County Clerk of Westchester County, and the

failure to append proof of service upon that official, and to set down

the name of the person served constitute fatal defects in the notice of

removal.

Moreover, it is not possible to determine the identity of the per-

son served with the notice of removal or his title and position.

4. The notice of removal is defective in that it fails to seek

removal to the White Plains Division of the Southern District of

New York.

Wherefore the petitioner respectfully asks that this petition be

granted, and that such other and further relief as the Court deems

proper in the premises be granted.

Dehn Wf

meses N. WEKSTEIN

Attorney for Petitioner

612 East Grassy Sprain Road

Yonkers, New York 10710

914-561-7500