Petition for Writ of Certiorari — Dagi v. Chris Motors Corp.

SUpreme Court, u.s.

rEL& D

1) 961696 app 2 2 1997

No. GbFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1996

LINDA DAGI,

Petitioner,

v.

CHRIS MOTORS CORPORATION,

BAYERISCHE MOTOREN WERKE, A.G.,

and BMW OF NORTH AMERICA, INC.,

Respondents.

On Petition For Writ of Certiorari to the

United States Court of Appeals for the Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

THOMAS ALLAN RICE, ESQ.

Counsel of Record

for Petitioner Linda Dagi

YEHUDA SMOLAR, ESQ.

G. GRANT BRANTLEY, ESQ.

SMOLAR, ROSEMAN,

BRANTLEY & SEIFTER

101 Marietta Tower

Suite 3410

Atlanta, Ga. 30303

(404) 525-3900

i

QUESTIONS PRESENTED

The questions presented include:

o Whether the Eleventh Circuit Court of Appeals erred in

misconstruing and misapplying the decision in Caterpillar, Inc.

v. Williams, 482 U.S. 386, 107 S. Ct. 2425, 96 L. Ed. 2d 318

(1987), with respect to the case sub judice, since the initial

Complaint was, in_fact, a well-pleaded Complaint that

contained all of the elements of a federal odometer fraud claim

under 15 United States Code §1981, 1989) and erred in not

reversing the District Court and directing that the case be

remanded to the State Court of Fulton County, Georgia,

pursuant to 28 United States Code §1447 (c), since Chris

Motors Corporation's attempted removal sixteen moths after

receipt of said initial Complaint was untimely, in that the case

was not removed to the United States District Court within 30

days of the receipt of the initial Complaint stating a claim for

federal odometer fraud, as required by the removal statute 28

United States Code §1446(b)?

* Whether the Eleventh Circuit Court of Appeals erred in

overlooking and not considering material facts in the record

that establish that there are genuine issues of fact as to whether

Defendant Chris Motors Corporation is liable for common law

fraud and negligent misrepresentations recklessly made, in

connection with odometer disconnection and tampering and

false representations as to the actual mileage on the BMW

automobile, erred in overlooking and not considering decisions

of the Supreme Court of Georgia and the Court of Appeals of

Georgia [including Harris v. Mullins, 32 Ga. 704 (1861); Larey

v. Taliaferro, 57 Ga. 443 (1876); City Dodge v. Garnder, 232

Ga. 766, 208 S.E. 2d 794 (1974); Bill Spreen Toyota, Inc. v.

Jenquin, 163 Ga. App. 855, 294 S.E. 2d 533 (1982); Rivers v.

il

BMW of North America, Inc., 214 Ga. App. 880, 449 S.E. 2d

337 (1994); Harmon v. BMW of North America, Inc., Case No.

A94A21003 in the Court of Appeals of Georgia, decided

January 26, 1995 (a copy of said unreported decision is

included in the Appendix; and Crown Ford, Inc. v. Crawford,

221 Ga. App. 881, 473 S.E. 2d 554 (1996), which cases hold

that a plaintiff can make an election to sue for common law

fraud and negligent misrepresentations recklessly made,

without rescinding a contract to purchase a vehicle, and holding

that such actions for fraud and negligent misrepresentation are

not barred by a merger clause contained in the sales contract

and are not barred by an "as is" clause contained in a disclaimer

of warranties,] which decisions are binding precedents under

Erie R. Co. v. Tompkins 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed

1188 (1938), and erred in not reversing the District Court and

denying Defendant Chris Motors Corporation's Motion for

Summary Judgment, based upon the binding Georgia

precedents, pursuant to Erie R. Co. v. Tompkins?

> Whether the Eleventh Circuit Court of Appeals erred in

overlooking and not considering material facts in the record

that establish that there are genuine issues of material facts as

to whether Plaintiff Linda Dagi is entitled to recover on her

federal odometer fraud claim under 15 United States Code §§

1981, 1989, erred in overlooking and not considering decisions

of the old (pre-November 1, 1980) Fifth Circuit Court of

Appeals and decisions of the Eleventh Circuit Court of Appeals

[Nieto v. Pence, 578 F.2d 640 (Sth Cir. 1978); and Huycke v.

Greenway, 876 F.2d 94 (11th Cir. 1989), which hold that a

Plaintiff need not show actual intent to defraud in a federal

odometer fraud claim, but may establish a violation of the

Federal Odometer Act, by relying on circumstantial evidence

to show constructive knowledge that the actual miles on a

vehicle are greater than the miles shown on the odometer and

iii

greater than the miles shown on the federal odometer disclosure

statement], which decisions are binding precedents under

Bonaer v. City of Pritchard, Alabama, 661 F.2d 1206 11th Cir.

1980, and the doctrine of stare decisis under Hilton v. South

ic Rai ission, 502 U.S. 197, 112 S.Ct.

560, 116 L. Ed. 2d 560 (1991) and the rile of binding

precedent under

Commissioners, 72 F.3d 1556 (11th Cir. 1996).?

4. Whether the United States District Court violated

cardinal rules regarding decisions on motions for summary

judgment, when in its July 31, 1995 and November 30, 1995

orders granting the motions for Summary judgment of

Defendants Chris Motors Corporation, Bayerische Motoren

Werke, A.G. and BMW of North America, Inc., Appendix

pages 26a-44a and pages 68a-90a, the District Court weighed

the evidence and made credibility findings, contrary to the

controlling legal standards applicable to motions for summary

judgment as stated in

684 F.2d 1294, 1297 (11th Cir. 1982); Warrior Tombigbee

, 695 F.2d

1294, 1297 (11th Cir. 1983);

City of Atlanta, 846 F.2d 1328 (11th Cir. 1988) and Big Apple

, 974 F. 2d 1358 (3rd

Cir. 1992) and the United States Court of Appeals for the

Eleventh Circuit abdicated its duty to review, recognize and

reverse the erroneous approach taken by the District Court in

weighing this evidence and making credibility findings in

deciding the motions for summary judgment of Chris Motors

Corporation, Bayerische Motoren Werke, A.G., and BMW of

North America, Inc.?

iV

3. Whether the erroneous decisions of the United States

Court of Appeals for the Eleventh Circuit was reached because

the Court of Appeals arbitrarily denied Appellant Linda Dagi's

request for oral argument and arbitrarily assigned the case to

the Non-Argument Calendar, contrary to the Court of Appeals’

policy to grant oral argument where important and complex

issues are presented on appeal and in complete disregard of the

writings of distinguished jurists, including United States Circuit

Judge Myron S. Bright, United States Circuit Judge Richard S.

Arnold, Mr. Chief Justice Hughes, Mr. Justice Harlan, Mr.

Justice Jackson, and Mr. Justice Rehnquist?

ee

V

PARTIES TO THE PROCEEDINGS IN THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

The parties to the proceedings in the United States

Court of Appeals for the Eleventh Circuit inclyded:

Linda Dagi

Plaintiff/Appellant

Chris Motors Corporation

Defendant/Appellee

Bayerische Motoren Werke, A.G. (BMW AG)

Defendant/Appellee

BMW of North America, Inc. (BMW NA)

Defendant/Appellee

BMW NA is a wholly owned subsidiary of the parent

company BMW AG. See W.

i , 19 F. 3d 745 (1st Cir.

1994) (Opinion by Chief Judge Breyer, who is now Mr. Justice

Breyer).

These are no other parent companies or non-wholly

owned subsidiaries that are required to be listed by Rule 29.6

of the Rules of the Supreme Court of the United States.

vi

TABLE OF CONTENTS

So a. ee eee yey Poe ey 1-iV

Parties to the Proceedings in the United States Court of

Appeals for the Eleventh Circuit ............... Vv

TaD CE CORE 8 iiss cs EA re vi

EMS CE AMOR 66 CRT a eiaeee ee Vii-xil

NORIO (oo so vias cogs eke OR eas eee ere l

ef Perr rrr rre Sy y perc eee 1-2

POON onic ccs cba nce adeeereses lorie 2-3

Statutory Provisions Involved .................005. 3-9

estan GE Get GAG 5 oo sc nddaa Sec kses eerie 10-11

Reasons for Granting the Petition for Writ of Certiorari .. 11-29

CN ann 6 0k8 066866040448 68 MR 29

SA ARIE: CN NE Stitt IES et itl al tt aes sca.

Vii

TABLE OF AUTHORITIES

CASES PAGE

Inc. 974 F. 2d 1358 ( 3rd Cir. ig | ar ili, 22, 29

in 163 Ga. App. 855,

APA RE. 28 S39 ORD 1 i i, 17, 18, 19

sitlene cok | SRR IRTE SO Sonera 21

Bonner v, City of Pritchard 661 F. 2d 1206 (11th Cir.

setae Fee EOE Te fe ee ae iii, 20, 28

Aktiengesellschaft 19 F. 3rd745 (Ist Cir. 1994) ... y

Caterpillar, Inc. v. Williams 482 U.S. 386, 107 S.Ct.

2425, 96 L.Ed. 2d 318 Ieee cisco ce. i, 12,13,15

City Dodge,. v. Gardner 232 Ga. 766, 208 S.E. 2d 794

(1974)

Vv la 684, F. 2d

1294, 1297 (11th Cir. 1982) ........... lili, 21, 28

Crown Ford, Inc. v. Crawford 221 Ga. App. 881, 473

PM PTO chien Sg od ER ii, 17

Vili

Table of Authorities Continued

CASES PAGE

Ernie R. Co. v. Tompkins 304 U.S. 64, 58 S.Ct. 817, 82

Ss BUM LEP OER. Naad cake kaaiaewe ili, 17,18, 27

Fort Lauderdale Lincoln Mercury, Inc, v. Fallaro Fla.

App., 616 So. 2d 594 (1993) .........0ceee eee 21

Gable v. Local Union #387 695 F. Supp. 1174 (N.D.

Ck SURE a kn kd care COA Rees een kee 15

Soll I _— & Building _Material

Corporation 671 F. Supp. 568 (1987) .......... 15

Harmon v. BMW_of North America, Inc. Case No.

A94A21003 in the Court of Appeals of

Georgia, decided January 26, 1995, copy of

opinion appears in the Appendix, at pages

PRU 5 6050 t URIS eae re RRR ee eEES i, 17

Hil South Caroline Public Rail C ae

502 U.S. 197, 112 S. Ct. 560, 116 L.Ed. 2d 560

‘to ) eres Pe iro be lrrtary e iii, 12, 20, 28

Huycke v. Greenway 876 F. 2d 94 (11th Cir. 1989) . . . ii, 20, 28

lo} DeSoto C Board of C ie

72 F. 3d 1556 (11th Cir. 1996) ...... iii, 12, 20, 28

ix

Table of Authorities Continued

CASES PAGE

Kolkin v, Gotham Sportswear 10 F. Supp. 682 (S.D.

PES Se oe led chee ss i oe eae 15

Larey v, Taliaferro 57 G. 433 (1876)............... i, 17

74 F.

tse t. (+ 2; epee eee 24

Nieto v. Pence 578 F.2d 640 (5th Cir. 1978) ... ti, 20, 21. 27

Reiff v. Don Rosen Cadillac-BMW, Inc. 501 F. Supp.

FEC a POU TOE bk nok evo oick cs. 21

214 Ga. App.

880, 449 S.E. 24 338 (1994) ............... i, 17

909 F. Supp. 545

URN OET Sova ice eh ries tee 9

846 F.

oe TSB CGC. 1908) oss ooo ks ili, 22, 29

Silva v, Stevens Supreme Court of Vermont, 589 A. 2d

eRe hai sada or os 19

S&S Toyota, Inc. v. Kirby Fla. App., 649 So. 2d 916

CAPE Se rks cwatieies ae ees 21

xX

Table of Authorities Continued

CASES PAGE

eeiher ‘Catia, Temes ‘on C eee

Nan Fung 695 F. 2d 1294 (11th Cir. 1983). . iii, 22, 29

STATUTES

15 United States Code §§ 1981,

| Ree ee i, ii, 2, 6, 9, 12, 13, 20, 23

DS Eli Berne Cn BIOGS ooii . Sck cic dba dss 6

DS Ee i Cn SIGE ici nian sn eS en ese 7

Be Re I 5 oo i csp ev kinnnse s

15 United States Code §1984..................00 000. 8

ES i a I oc ck bis hos nh 8

BS Ea GIO ooo es be Sc ae ce eka css ‘

15 United States Code §1989...............0 0. eee ee 9

15 United States Code §1989(b) .................005. 2

TO Sine i ee BITE io cc 3

20 Linieedl Bates Cade $1291 ... . . ooo cc i eee 3

We teed Melek Cake 61581 oo icc 4

xi

Table of Authorities Continued

STATUTES PAGE

28 United States Code §1446............. i, 4, 12, 13, 16

28 United States Code §1447........... i, 4, 5, 12, 16, 17

49 United States Code §§32701,32710................ 9

Public Law 92-513, October 20, 1972, 86 Statutes 947 ... 6

Public Law 103-292 §76, 108 Statutes 1379 ............ u

RULES

Rules of the United States Supreme Court, Rule 29.6 ..... ii

OTHER AUTHORITIES

Bright, The Power of the Spoken Word: In Defense of

Oral Argument, 72 Iowa Law Review 35 (1986) ... 25

Bright & Arnold,

70 A.B.A. Journal 68 (Deeaniber Se 55505 25

C. HUGHES, THE SUPREME COURT OF THE

UNITED STATES, pages 61-62, (1928) ........ 25

Harlan, What Part Does the Oral Argument Play in The

Conduct of an Appeal?, Conduct of an Appeal?, 41 Cornell Law

on hi | Raa rete aparece east ias 6, 11, 25

xii

Table of Authorities Continued

OTHER AUTHORITIES PAGE

Jackson, Advocacy before the Supreme Court:

Suggestions of Effective Case Presentations, 37

AEA. Soh OEE CS go 6 vincdcnvissdceens 25

Rehnquist, Oral Advocacy, 27 South Texas Law

Review 289 (Summer 1986) ................. 26

76 Corpus Juris Secundum Removal of Causes §75,

|) 5 POPE Pere eT s Serr Ter Te 16

OR a ne Be men MLM

OO ee

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1996

LINDA DAGI,

Petitioner,

Ve

CHRIS MOTORS CORPORATION,

BAYERISCHE MOTOREN WERKE, A.G.,

and BMW OF NORTH AMERICA, INC.,

Respondents.

On Petition For Writ of Certiorari to the

United States Court of Appeals for the Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

INTRODUCTION

Petitioner Linda Dagi respectfully petitions for a Writ

of Certiorari to review the Judgment of the United States Court

of Appeals for the Eleventh Circuit in Case Numbers 95-9501

and 96-8025.

OPINIONS BELOW

The November 21, 1996 Opinion and Judgment of the

Eleventh Circuit Court of Appeals in Case numbers 95-9501

and 96-8025) is reproduced in the Appendix at 13a-15a and

pages 16a-17a. The November 21, 1996 Opinion and

2

Judgment is not officially reported, and the decision appears in

a list of decisions without reported opinions in 102 F.3d

535(1996), with a notation that the case should not be cited

without attaching a copy of the Opinion and Judgement. The

January 22, 1997 Order of the Eleventh Circuit panel denying

Petitioner's combined petition for panel rehearing and

suggestion for rehearing en banc, is unpublished, and is

reproduced in the Appendix at pages 18a-19a.

The July 31, 1995 Order and November 2, 1995

Judgment of the United States District Court for the Northern

District of Georgia, Atlanta Division, entered by Judge Julie

Carnes, granting Defendant Chris Motors Corporation's motion

for summary judgment are unpublished and are reproduced in

the Appendix at pages 26a-44a and page 63a.

The November 30, 1995 Order and December 1, 1995

Judgment of the United States District Court for the Northern

District of Georgia, Atlanta Division entered by Judge Julie

Carnes, granting Defendants Bayerische Motoren Werke, A.G.

and BMW of North America, Inc.'s motion for summary

judgment are unpublished and are reproduced in the Appendix

at pages 68a-90a and 91a.

JURISDICTION

The Defendant Chris Motors Corporation claims that

the United States District Court had jurisdiction of this case

based upon a claim under the Federal Odometer Act, 15 United

States Code §1981, 1989, which is a federal question under 28

United States Code §1331.

State courts have concurrent jurisdiction of federal

odometer fraud claims under 15 United States Code §1989(b).

3

ret eet ee ee

The United States Court of Appeals has jurisdiction of

Case Number 95-9501 and 96-8025 under 28 United States

Code §1291, which provides that the Courts of Appeals of the

United States have jurisdiction of appeals from all final

decisions of the District Courts of the United States.

The United States Supreme Court has jurisdiction to

issue the Writ of Certiorari under 28 United States Code §1254

| (1).

STATUTORY PROVISIONS INVOLVED

bo ent bi an ae

The statute pertaining to jurisdiction for writs of

certiorari in the United States Supreme Court is 28 United

States Code §1254, which provides in pertinent part, as

follows:

28 United States Code §1254,

; ’ Apneals: Cortionarl: Certified Ouest

Cases in the courts of appeals may be reviewed by the

Supreme Court by the following methods:

(1) By wnt of certiorari granted upon the petition of

any party to any civil or criminal case, before or after rendition

of judgment or decree;

(2) Bycertification at any time by a court of appeals

of any question of law in any civil or criminal case as to which

instructions are desired, and upon such certification the

Supreme Court may give binding instructions ore require the

entire record to be sent up for decision of the entire matter in

controversy.

iii

4

The statute pertaining to jurisdiction of federal

questions in the United States District Courts is 28 United

States Code §1331, which provides in pertinent part, as

follows:

28 United States Code §1331.

Federal Question

The district courts shall have original jurisdiction of all

civil actions arising under the Constitution, laws, or treaties of

the United States.

Statutes pertaining to removal of cases from state courts

to United States district Courts and remand of cases from

United States District Court to state courts include 28 United

States Code §1446 and §1447, which provide in pertinent part,

as follows:

28 United States Code §1446.

Procedure for removal.

(a) A defendant or defendants desiring to remove

any civil action or criminal prosecution from a State court shall

file in the district court of the United States for the district and

division within which such actions pending a notice of removal

signed pursuant to Rule 11 of the Federal Rules of Civil

Procedure and containing a short and plain statement of the

grounds for removal, together with a copy of all process,

pleadings, and orders served upon such defendant or defendants

in such action.

(b) The notice of removal of a civil action or

proceeding shall be filed within thirty days after the receipt of

the defendant, through service or otherwise, of a copy of the

initial pleading setting forth the claim for relief upon which

aa i

5

such action or proceeding is based, or within thirty days after

the service of summons upon the defendant if such initial

pleading has been filed in court and is not required to be served

on the defendant, whichever period is shorter.

If the case stated by the initial pleading is not

removable, a notice of removal may be filed within thirty days

after receipt by the defendant, through service or otherwise, of

a copy of an amended pleading, motion, order or other paper

from which it may first be ascertained that the case is one

which is or has become removable, except that a case may not

2 be removed on the basis of jurisdiction conferred by section

1332 of this title more than 1 year after commencement of the

action.

28 United States Code §1447

procedure after removal generally

(a) In any case removed from a State court, the

| district court may issue all necessary orders and process to

bring before it all proper parties whether served by process

issued by the State court or otherwise.

(b) It may require the removing party to file with its

clerk copies of all records and proceedings in such State court

or may cause the same to be brought before it by writ of

certiorari issued not such State court.

(c) A motion to remand the case on the basis of any

defect other than lack of subject matter jurisdiction must be

made within 30 days after the filing of the notice of removal

under section 1446(a). If at any time before final judgment it

appears that the district court lacks subject matter jurisdiction,

| the case shall be remanded. an order remanding the case may

6

require payment of just costs and any actual expenses,

including attorney fees, incurred as a result of the removal. A

certified copy of the order of remand shall be mailed by the

clerk to the clerk of the State court. The State court may

thereupon proceed with such case.

(d) | Anorder remanding a case to State court from

which it was removed is not reviewable on appeal or otherwise,

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 otherwise.

(e) If after removal the plaintiff seeks to join

additional defendants whose joinder would destroy subject

matter jurisdiction, the court may deny joinder, or permit

joinder and remand the action to the State court.

In 1972, Congress enacted the Motor Vehicle

Informative and Cost Savings Act in Public Law 92-513,

October 20, 1972, 86 statues 947, which was codified as 15

United States Code §1981 et seg. Provisions pertaining to

odometer fraud were contained in Public Law 92-513, Title IV,

§401 et seq., October 20, 1972, 86 statutes 961, which was

codified as 15 United States Code §§1989 through 1991.

Statutory provision pertinent to this case include:

The congress hereby finds that purchasers, when buying

motor vehicles, rely heavily on the odometer reading as an

index of the condition and value of such vehicle; that

purchasers are entitled to rely on the odometer reading as an

accurate reflection of the mileage actually traveled by the

cee

7

vehicle; that an accurate indication of the mileage traveled by

a motor vehicle assists the purchaser in determining its safety

and reliability; and that motor vehicles move in the current of

interstate and foreign commerce or affect such commerce. It is

therefore the purpose of this subchapter to prohibit tampering

with odometers on motor vehicles and to establish certain

safeguards for the protection of purchasers with respect to the

sale of motor vehicles having altered or reset odometers.

| 15 United States Code §1982.

As used in this subchapter-

(1) The term "dealer" means any person who has

sold 5 or more motor vehicles in the past 12 months to

purchasers who in good faith purchase such vehicles for

purposes other than resale.-

(2) The term "distributor: means any person who

has sold 5 or more vehicles in the past 12 months for resale.

(3) The term "odometer" means an instrument for

measuring and recording the actual distance a motor vehicle

travels while in operation; but shall not include any auxiliary

odometer designed to be reset by the operator of the motor

vehicle for the purpose of recording mileage on trips.

| (4) The term "repair and replacement" means to

restore to a sound working condition by replacing the odometer

or any part hereof or ;by correcting what is inoperative.

(5) The term "transfer" means to change ownership

by purchase, gift, or any other means.

15 United States Code §1983.

BERET mer eo game tr hibited

No person shall advertise for sale, sell, use, or install or

cause to be installed, any device which causes an odometer to

register any mileage other than the true mileage driven. For

purposes of this section, the true mileage driven is that mileage

driven by the vehicle as registered by the odometer within the

manufacturer's designed tolerance.

No person shall disconnect, reset, or alter or cause to be

disconnected, reset, or altered, the odometer of any motor

vehicle with intent to change the number of miles indicated

thereon.

15 United States Code §1985.

i ee ieoctansh al hibited

No person shall, with intent to defraud, operate a motor

vehicle on any street or highway knowing that the odometer of

such vehicle is disconnected or nonfunctional.

15 United States Code §1986

a alate al ;

No person shall conspire with any other person to

violate section 1983, 1984, 1985, 1987, or 1988 of this title.

** *

(a) Any person who, with intent to defraud, violates any

requirement imposed under this subchapter shall be liable in an

amount equal to the sum of -

(1) three times the amount of actual damages

sustain or $1,500., whichever is greater; and

(2) _ in the case of any successful action to enforce

the foregoing liability, the costs of the action together with

reasonable attorney fees as determine by the court.

(b) An action to enforce any liability created under

subsection (a) of this section, may be brought in a United States

district court without regard to the amount in controversy, or in

any other court of competent jurisdiction, within two years

from the date on which the liability arises.

NOTE: The Federal Odometer Act contained in Title

IV of the Motor Vehicle Inforamtion and Cost Savings Act, 15

United States Code §§1981 - 1991 (1972) was repealed on July

5, 1994, by Public Law 103-292, §7b, 108 Statutes 1379, and

was replaced by 49 United States Code §§32701 through

32710. Because the relevant activities occurred in 1992 before

the old Act, 15 United States Code §§1981 - 1991 was

repealed, the provisions of the old Act are applicable to this

case. Roberts v. Robert v. Rohrman, Inc., 909 F. Supp. 545

(N.D. Ill. 1995)

il

10

STATEMENT OF THE CASE

This is an action in tort and fraud brought by Linda

Dagi, Plaintiff/Appellant, against Defendants Bayerische

Motoren Werke, A.G. (hereinafter referred to as "BMW AG"),

BMW of North America, Inc. (hereinafter referred to as "BMW

NA"), and Chris Motors Corporation (hereinafter referred to as

"Chris Motors"). The case was originally filed on March 19,

1993, in the State Court of Fulton County as Case Number 93-

VS-0070409-F. See Plaintiff's Complaint for Damages (R i-1-

5; Document #1)

On August 12, 1994, the Defendants removed this case

to the United States District Court for the Northern District of

Georgia, where it was docketed as Civil Action File No. 1:94-

CV-2135-JEC. On Monday, September 12, 1994, Plaintiff

filed a timely Motion to Remand. See Plaintiff's Motion to

Remand, Brief in Support of Plaintiff's Motion to Remand,

Affidavit Regarding Deposition of Neil Christman, Affidavit of

Joyce Christman, and Notice of Motion to Remand Removed

Action, all of which documents were filed in this Court on

September 12, 1994 (R 3-5-1;) See also, Plaintiffs Reply Brief

in Support of Plaintiff's Motion to Remand filed October 13,

1994 (R 4-9-1;) and the October 24, 1994 Order denying

Plaintiff's Motion to Remand (R 4-10-1;).

The United States Court of Appeals did not reverse the

erroneous October 24, 1994 Order denying Plaintiff's Motion

to Remand but erroneously affirmed the denial of Plaintiffs’

Motion to Remand, contrary to binding precedents.

On July 31, 1995, the District Court entered an Order

granting Defendant Chris Motors Corporation's Motion for

Summary Judgment. (R-54-1); On November 30, 1995, the

11

District Court entered an Order granting BMW AG's and BMW

NA's motion for summary judgment (R 9-84-1; Document #84,

page 1). In both the July 31, 1995 Order and the November

30, 1995 Order, the District Court ignored affidavits and other

evidence favorable to Plaintiff, weighed and resolved conflicts

in the evidence, made credibility findings, and decided factual

issues; and Plaintiff Linda Dagi submits that the Draconian

approach taken by the District Court is inconsistent with the

record which shows numerous genuine issues of material facts

which establish the liability of Chris Motors, BMW AG, and

BMW NA, and is contrary to the State and Federal substantive

law and is contrary to the legal standards to be applied in ruling

on motions for summary judgment. The United States Court of

Appeals did not reverse the erroneous July 31, 1995 Order and

November 30, 1995 Order of the District Court granting

numerous judgments for the Defendants, but erroneously

affirmed said orders, contrary to binding precedents, without

analysis or discussion. The Eleventh Circuit's entire ruling on

the erroneous grants of the motion for summary judgment

consists of the erroneous conclusion at page 3 of its November

21, 1996 Order and Judgment: "The remainder of Dagi's

assertions of error are rejected for the reasons set forth in the

district courts thorough and thoughtful orders dated July 31,

1995 and November 30, 1995," Appendix, page 15a.

REASONS FOR GRANTING THE PETITION

FOR WRIT OF CERTIORARI

Petitioner Linda Dagi respectfully submits that the

issues addressed in her Petition for Writ of Certiorari are

matters of importance, gravity and great concern to the Bench,

the Bar, and the public which go to the very heart of the duty of

the judiciary to uphold established principles of law that are

12

binding precedents under the doctrine of stare decisis and the

rule of binding precedent. These issues are, as follows:

1. The Petition for Wnt of Certiorari should be granted,

for the reason that the Eleventh Circuit Court of Appeals erred

in misconstruing and misapplying the decision in Caterpiller,

Inc. v. Williams, 482 U.S. 386, 107 S. Ct. 2425, 96L. Ed. 2d

318 (1987), with respect to the case sub judice, since the initial

Complaint was, in fact, a well-pleaded Complaint that

contained all of the elements of a federal odometer fraud claim

under 15 United States Code §1981, 1989) and erred in not

reversing the District Court and directing that the case be

remanded to the State Court of Fulton County, Georgia,

pursuant to 28 United States Code §1447 (c), since Chris

Motors Corporation's attempted removal sixteen months after

receipt of said initial Complaint was untimely, in that the case

was not removed to the United States District Court within 30

days of the receipt of the initial Complaint stating a claim for

federal odometer fraud, as required by the removal statute 28

United States Code §1446(b).

The decisions of the District Court and the Eleventh

Circuit Court of Appeals are in conflict with the decisions of

this Court pertaining to the well-pleaded complaint rule and are

contrary to the doctrine of stare decisis and the rule of binding

precedent. Hilton v. South Carolina Public Railway

Commission, 502 U.S. 197, 112 S. Ct. 560, 116 1.Ed 2d 560

(1991); and Johnson v. DeSoto County board __ of

Commissioners 72 F. 3d 1556 (11th Cir. 1996).

The appellate panel erred in misconstruing and

misapplying the Caterpillar. Inc. v. Williams, 482 U.S. 386,

107 S.Ct. 2425, 96 L.Ed. 2d 318, (1987) decision to the case

sub judice, since the initial complaint was, in fact, a well-

13

pleaded complaint that contained all of the elements of a

federal odometer fraud claim under 15 United States Code

§§1981, 1989). The Defendants attempted removal sixteen

months after receipt of said initial complaint was untimely, in

that the case was not removed to the United States District

Court within 30 days of the receipt of the initial complaint

stating a claim for federal odometer fraud, as required by the

removal statute, 28 United States Code §1446(b).

Petitioner shows that the Writ of Certiorari, should be

granted, since the November 21, 1996 Opinion and Judgment

of the appellate panel of the Eleventh Circuit Court of Appeals,

Appendix pages 13a-15a, 16a-17a, constitutes a radical

departure from binding precedents regarding removal

jurisdiction, which hold that well-pleaded complaints must be

removed within 30 days. Consideration by the Supreme Court

is necessary to secure and maintain uniformity of decisions in

this Court, as to the well-pleaded complaint doctrine as set out

in cases of the Eleventh Circuit Court of Appeals and the

Supreme Court of the United States. This is a question of

exceptional importance to the Bench, the Bar, and the public,

in that the appellate panel decision is in conflict with binding

precedents and causes confusion and lack of uniformity as to

the applicable law.

In its November 21, 1996 Opinion and Judgment, the

appellate panel erred in misconstruing and misapply the

decision in Caterpillar, Inc. v. Williams, 482 U.S. 386, 107

S.Ct. 2425, 96 L.Ed. 2d 318 (1987) to the case sub judice, since

the initial complaint was, in fact, a well-pleaded complaint that

contained all of the elements of a federal odometer fraud claim

under 15 United States Code §§1981, 1989.

14

The essential elements of a federal odometer fraud

claim is stated paragraphs 33 through 38 of the initial

complaint, as follows:

Paragraph 33

Defendant Chris Motors represented and certified to

Plaintiff Dagi that the subject BMW 535i automobile had been

driven only 5,351 miles via an Odometer Disclosure Statement;

Paragraph 34

At the time in which Defendant Chris Motors

represented and certified to Plaintiff Dagi that the subject

BMW 535i automobile had only 5,351 miles through said

Odometer Disclosure Statement, Defendant Chris Motors knew

that such representation to Plaintiff Dagi as to the mileage of

said vehicle was false;

Paragraph 35

Defendant Chris Motors made such representation

regarding the mileage of said BMW 535i vehicle with the

intention and purpose of deceiving Plaintiff Dagi;

Paragraph 36

Plaintiff Dagi reasonably relied upon Defendant Chris

Motors’ representation and certification as to the mileage of the

subject BMW 535i automobile;

thee

15

Paragraph 37

As a result of Defendant Chris Motors' fraudulent

representation with respect to the mileage of the subject BMW

535i automobile, Plaintiff Dagi sustained damages;

Paragraph 38

By reason of the foregoing, Plaintiff Dagi is entitled to

recover from Defendant Chris Motors damages in such an

amount as may be shown by the evidence and determined by

the jury in their enlightened conscience.

In its November 21, 1996 Opinion and Judgment,

Appendix pages 13a-15a, 16a-17a, the appellate panel erred in

misconstruing and failing to apply applicable authorities

pertaining to well-pleaded complaints, including: Caterpillar,

Inc. v. Williams 482 U.S. 386, 107 S. Ct. 2423, 96 L.Ed. 2d

318 (1987); Gable v. Local Union #387, 695 F.Supp. 1174

(N.D. Ga. 1988) (in which the court held, at page 1175: "The

reviewing court looks to the sub-stance of the complaint and

not the labels used in it."); Golke v. Lee Lumber & Building

Materials Corporation, 671 F.Supp. 568 (1987) (in which the

court held, at page 571: "A close scrutiny of the amended

compliant reveals that the content and substance of the initial

complaint remains unchanged . . . Lee Lumber should have

filed its removal petition within 30 days of receiving Golke's

initial complaint."); -Wri

Company, 39 F.Supp 33 (E.D. Ky. 1941) (in which the court

Stated, at page 36: "As the court takes judicial notice of the

federal law involved, the omission of specific reference thereto

in the pleadings is immaterial."); Kolkin v. Gotham

Sportswear, 10 F.Supp. 682 (S.D. N.Y. 1935) (in which the

Court stated, at page 684: "It does not matter that the Sherman

16

Anti-Trust Act and the Clayton Act are not mentioned by name

in the complaint."); and 76 Corpus Juris Secundum Removal of

Causes §75, at page 968, wherein it is stated: "The omission

from Plaintiff's pleading of a specific reference to any law of

the United States does not prevent removal where the allega-

tions of such pleading show that the suit arises under a law of

the United States."

The initial well-pleaded complaint setting forth all of

the elements of a federal odometer fraud claim was received by

Chris Motors Corporation on April 7, 1993, and was received

by BMW of North America, Inc. on March 22, 1993. (See

September 12, 1994 Affidavit of Thomas Allan Rice in Support

of Plaintiff's Motion to Remand, (R 3-5-23;). The attempted

removal took place on August 12, 1994; when the Defendants

filed a Petition for Removal (R 1-1-1;) and Notice of Removal

(R 1-1-254;)

The Defendants’ attempted removal sixteen months

after receipt of said complaint was untimely, in that the case

was not removed to the United States District Court within

thirty days of the receipt of the initial complaint stating a claim

for federal odometer fraud as required by the removal statute,

28 United States Code §1446(b).

Therefore, the District Court committed reversible error

in its October 24, 1994 Order in denying Plaintiff's Motion to

Remand to state court pursuant to 28 United States Code

§1447(c) (R 4-10-11;) and the appe'late panel of the Eleventh

Circuit Court of Arpeals committed reversible error in

affirming the denial of Appellant Linda Dagi's Motion to

Remand to state court. Therefore, the Writ of Certiorari should

issue, the decisions of the District Court and Eleventh Circuit

Court of Appeals should be reversed and the case remanded to

17

the State Court of Fulton County, pursuant to 28 United States

Code §1447 (c).

2. The Petition for Writ of Certiorari should be granted,

for the reason that the decisions of the United States District

Court and the Eleventh Circuit Court of Appeals violate the

principle established by Erie R. Co. v. Tompkins, 304 U.S. 64,

58 S. Ct. 817, 82 L.Ed. 1188 (1938), that state law issues of tort

liability for cases occuring in Georgia are governed by the

decisions of the Supreme Court of Georgia and the Court of

Appeals of Georgia.

The District Court and the Eleventh Circuit Court of

Appeals erred in overlooking and not considering material facts

in the record that establish that there are genuine issues of fact

as to whether Defendant Chris Motors Corporation is liable for

common law fraud and negligent misrepresentations recklessly

made, in connection with odometer disconnection and

tampering and false representation as to the actual mileage on

the BMW automobile, erred in overlooking and not considering

decisions of the Supreme Court of Georgia and the Court of

Appeals of Georgia [including Harris v. Mullins, 32 Ga. 704

(1861); Larey v. Taliaferro, 57 Ga. 443 (1876); City Dodge v.

Garnder, 232 Ga. 766, 208 S.E. 2d 794 (1974); Bill Spreen

: Toyota, Inc. v. Jenquin, 163 Ga. App. 855, 294 S.E. 2d 533

(1982); Rivers v. BMW of North America, Inc. 214 Ga. App.

880, 449 S.E. 2d 337 (1994); Harmon v. BMW_of North

) America, Inc. Case No. A94A21003 in the Court of Appeals of

Georgia, decided January 26, 1995 (a copy of said unreported

decision is included in the Appendix as Exhibit 23, at page

141a); and Crown Ford, Inc. v. Crawford, 221 Ga. App. 881,

473 S.E. 2d 554 (1996), which cases hold that a plaintiff can

make an election to sue for common law fraud and negligent

misrepresentations recklessly made, without rescinding a

18

contract to purchase a vehicle, and hold that such actions for

fraud and negligent misrepresentation are not barred by a

merger clause contained in sales contract and are not barred by

an "as is" clause contained in a disclaimer of warranties], which

decisions are binding precedents under Erie R. Co. v.

Tompkins 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

The July 31, 1995 decisions of the District Court

granting Defendant Chris Motors Corporation's motion for

summary judgment, Appendix pages 26a-44a and the decision

of the Eleventh Circuit Court of Appeals affirming the grant of

Chris Motors Corporations’ motion for summary judgment ,

Appendix, pages 13a-15a, 16a-17a are erroneous and should be

reversed. Therefore, the Writ of Certiorari should issue, the

decisions of the District Court and the Eleventh Circuit Court

of Appeals regarding the granting of Chris Motors

Corporation's motion for summary judgment should be

reversed, and the case remanded for trial on the merits of

Plaintiff Linda Dagi's claims for common law fraud and

negligent misrepresentations recklessly made in the States

Court of Fulton County, Georgia.

Petitioner Linda Dagi shows that a Wnit of Certiorari

should be granted, since the November 21, 1996 Opinion and

Judgment of the appellate panel of the Eleventh Circuit Court

of Appeals, Appendix, pages 16a-17a constitutes a radical

departure from established law, in that the appellate panel

overlooked and did not consider decisions of the Georgia

Supreme Court and the Georgia Court of Appeals that are

binding precedents under Erie R. Co. v. Tompkins, 304 U.S.

64, 58 S. Ct. 817, 82 L.Ed. 1188 (1938). Consideration by the

Supreme Court on Wnit of Certiorari is necessary to secure and

maintain adherence to the principle established in Erie R. Co.

yv. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

19

This is a question of exceptional importance to the Bench, the

Bar, and the public, in that the appellate panel decision is in

conflict with binding precedents and causes confusion and lack

of uniformity as to the applicable law.

Said binding precedents clearly establish that there are

genuine issues of material fact as to whether Defendant Chris

Motors Corporation is liable for common law fraud and

negligent misrepresentations recklessly made in connection

with odometer disconnection and tampering and false

representations as to the actual mileage on the BMW

automobile.

Said binding precedents also clearly establish that,

under Georgia law, a plaintiff has an election of remedies in an

action involving the purchase of an automobile and can affirm

the contract and sue for damages for common law fraud and

negligent misrepresentations recklessly made.

Said binding precedents also clearly establish that the

Plaintiff Linda Dagi's claims of fraud and negligent

misrepresentations recklessly made are not barred by the

merger clause contained in the Retail Buyer's Order or the "as

is" language contained in the Buyer's Guide. Bill Spreen

Vv in, 163 Ga. App. 855, 294 S.E. 2d 533

(1994). See also, Silva v. Stevens, Supreme Court of Vermont,

589 A. 2d 852 (1991) in which the "as is" clause is discussed

and Bill Spreen Toyota, Inc. v. Jenquin, 163 Ga. App. 855, 294

S.E. 2d 533 (1982) is followed.

The District Court committed reversible error in

granting Defendant Chris Motors Corporation's Motion for

Summary Judgment (See July 31, 1995 Order granting

summary judgment in favor of Chris Motors Corporation, (R 8-

20

54-1;) and November 2, 1995 Judgment entered in favor of

Chris Motors Corporation, (R 9-77-1;) and the appellate panel

of the Eleventh Circuit Court of Appeals committed reversible

error in affirming the grant of Defendant Chris Motors

Corporation's Motion for Summary Judgment, Appendix, pages

13a-15a, 16a-17a.

3. The Petition for Writ of Certiorari should be granted,

for the reason that this District Court and the Eleventh Circuit

Court of Appeals erred in overlooking and not considering

material facts in the record that establish that there are genuine

issues of material facts as to whether Plaintiff Linda Dagi is

entitled to recover on her federal odometer fraud claim under

15 Unit * States Code §§ 1981, 1989, erred in overlooking and

not considering decisions of the old (pre-November 1, 1980)

Fifth Circuit Court of Appeals and decisions of the Eleventh

Circuit Court of Appeals [Nieto v. Pence, 578 F.2d 640 (5th

Cir. 1978); and Huycke v. Greenway, 876 F.2d 94 (11th Cir.

1989), which hold that a Plaintiff need not show actual intent

to fraud in a federal odometer fraud claim, but may establish a

violation of the Federal Odometer Act, by relying on

circumstantial evidence to show constructive knowledge that

the actual miles on a vehicle are greater than the miles shown

on the odometer and greater than the miles shown on the

federal odometer disclosure statement], which decisions are

binding precedents under Bonner v. City of Pritchard, Alabama,

661 F.2d 1206 (11th Cir. 1980), the doctrine of stare decisis

under Hilton v. South Carolina Public Railway Commission,

502 U.S. 197, 112 S.Ct. 560, 116 L. Ed. 2d 560 (1991) and the

rule of binding precedent under Johnson v. DeSoto County

Board of Commissioners, 72 F.3d 1556 (11th Cir. 1996).

The District Court and the Eleventh Circuit Court of

Appeals also erred in overlooking and not considering other

aS lM OR, a dad it nS

21

decisions that are persuasive authority, including Suits v. Licle

Motor Company 642 F. 2d 883 (5th Cir. 1987); Reiff v. Don

Rosen Cadillac-BMW., Inc. 501 F. Supp. 77 (E.D. Penn. 1980);

S & § Toyota, Inc. v. Kirby, Fla. App. 649 So. 2d 916 (1995)

(following Nieto v. Pence) Fort Lauderdale Lincoln Mercury,

Inc. v. Fallaro, Fla. App. 616 So.2d 594 (1993) (following

Nieto v. Pence); and

Inc. Fla. App. 409 So.2d 507 (1982) (following Nieto v.

Pence).

Petitioner Linda Dagi shows that a Writ of Certiorari

should be granted, since the July 31, 1995 Order of the District

Court granting Defendant Chris Motors Corporation's motion

for summary judgment, (R 8-54-1) and Appendix pages 26a-

44a. and the November 21, 1996 Opinion and Judgment of the

Eleventh Circuit Court of Appeals, Appendix, pages 13a-15a

and 16a-17a, constitute a radical departure from established

law, in that the District Court and the Eleventh Circuit Court of

Appeals overlooked and did not consider decisions of the Fifth

Circuit Court of Appeals and the Eleventh Circuit Court of

Appeals and that are binding precedents.

Consideration by the Supreme Court on Writ of

Certiorari is necessary to secure and maintain uniformity of

decisions of the Fifth Circuit Court of Appeals and the

Eleventh Circuit Court of Appeals that are binding precedents.

This is a question of exceptional importance to this Bench, the

Bar and the public in that the appellate panel decision is in

conflict with binding precedents and causes confusion and lack

of uniformity as to the applicable law.

4. The Petition for Writ of Certiorari should be granted for

the reasons that the United States District Court violated

cardinal rules regarding decisions on motions for summary

22

judgment, when the District Courts in its July 31, 1995 and

November 30, 1996 orders granting the motions for summary

judgment of Defendants Chris Motors Corporation, Bayerische

Motoren Werke, A.G. and BMW of North America, Inc.,

Appendix pages 26a-44a and Appendix pages 68a-90a, the

District Court weighed the evidence and made credibility

findings, contrary to the controlling legal standards applicable

to motions for summary judgment as stated in Clemons v.

Dougherty County, Georgia, 684 F.2d 1294, 1297 (11th Cir.

1982); Warrior Tombigbee Transportation Company, Inc. v.

M/V_Nan Fung, 695 F.2d 1294, 1297 (11th Cir. 1983); and

Samples on Behalf of Samples v. City of Atlanta, 846 F.2d

1328 (11th Cir. 1988) and the United States Court of Appeals

for the Eleventh Circuit abdicated its duty to conduct a de novo

review, recognize and reverse the erroneous approach taken by

the District Court, contrary to the standards stated in the

Clemons, Warrior Tombigbee Transportation Company, Inc.

and Samples on Behalf of Samples cases.

This erroneous approach in determining motions for

summary judgment was also criticized by the Third Circuit

Court of Appeals, in Big Apple BMW, Inc. v. BMW of North

America, Inc., 974 F. 2d 1358, (3rd Cir. 1992), in which the

Court stated, at page 1363:

“When deciding a motion for summary

judgment . . . a court’s role remains

circumscribed in that it is inappropriate for a

court to resolve factual disputes and to make

credibility determinations.”

Since the District Court and the Eleventh Circuit Court

of Appeals erred in failing to apply the controlling legal

standards in deciding the motions for summary judgment filed

23

by Chris Motors, BMW, AG, and BMW NA, this Court should

grant a Writ of Certiorari, reverse the Order and Judgment

granting summary judgment in favor of Chris Motors and

reverse the Order and Judgment granting summary Judgment

in favor of BMW AG and BMW NA. Therefore, both Case

No. 95-9501 and Case No. 96-8025 should be reversed and

remanded for trial on the merits.

5: The Petition for Writ of Certiorari should be granted,

for the reason that the erroneous decision of the United States

Court of Appeals for the Eleventh Circuit was reached because

the Court of Appeals arbitrarily denied Appellant Linda Dagi's

request for oral argument and arbitrarily assigned the case to

the Non-Argument Calendar, contrary to the Court of Appeals'

policy to grant oral argument where important and complex

issues are presented on appeal.

At pages ii and iii of Brief of Appellant in Case

Numbers 95-9501 and 96-8025 in the United States Court of

Appeals for the Eleventh Circuit, Appellant Linda Dagi made

the following Statement Regarding Oral Argument:

Plaintiff/Appellant believes that oral argument is necessary in

this case. Plaintiff/Appellant submits that this case is

appropriate for assignment to the Oral Argument Calendar, for

the reasons that: (1) this case is one of first impression as to

error in denying a Motion to Remand a case to State Court,

where it was not timely removed to Federal Court; (2) this case

involves important issues pertaining to an automobile

dealership's liability for common law fraud in connection with

odometer disconnection and tampering, false representations as

to the actual mileage on an automobile, false representations as

to acid rain damage and the repainting of an automobile, and

liability for violations of the Federal Odometer Fraud Act, 15

U.S.C. §§1981-1991; (3) this case involves an important issue

24

of the admissibility opinion testimony of a lay witness under

Rule 701 of the Federal Rules of Evidence, in connection with

Bill Hudson's affiant testimony that he had examined and

photographed the tires on this BMW automobile and that, in his

opinion, the BMW automobile has been driven more miles than

the mileage shown on the odometer; (4) this case involves an

important issue of the preclusion of use of expert witnesses; (5)

this case involves an important issue as to the right of a party

to amend her complaint to conform to the evidence in the case;

(6) this case involves important issues as to an automobile

manufacturer's strict liability for defects in the brakes, throttle

housing unit, and floor mats of an automobile, strict liability for

failure to warn about said defects in an automobile, strict

liability for design defects in the odometer, and strict liability

for failure to warn about design defects in the odometer; and

(7) this case involves important issues as to an automobile

importer/distributor's liability for negligence in failing to warn

about design defects in the odometer of an automobile, and

liability for deceit in failing to disclose that an automobile has

been damaged by acid rain and repainted.

Counsel for Plaintiff has always found that oral

argument is extremely important to clarify the facts, issues and

law.

In a recent case in the Eleventh Circuit Court of

Appeals, Michael v. Norfolk Southern Railway Company, 74

F. 3d 271 (11th Cir. 1996), oral argument was a crucial factor

in obtaining the reversal of summary judgments in two

wrongful death cases.

There are numerous law review articles authored by

eminent jurists that show the importance of oral argument in

cutting through the rhetoric in appellate briefs and focusing

upon the crux of the issues to be decided. See, in this

25

connection: Bright & Arnold, Oral Argument - It May Be

Crucial, 70 A.B.A. Journal 68 (December 1984), in which the

author stated, at page 68: "oral argument most often changed

my mind when it brought to the fore a significant fact that the

briefs had not sufficiently emphasized, when the briefs had not

stated an applicable rule of law clearly or correctly or when the

issues of fact or law were close" (written by U.S. Circuit Court

Judge Myron H. Bright and U.S. Circuit Court Judge Richard

S. Amold); Bright, The Power of the Spoken Word: In Defense

of Oral Argument, 72 lowa Law Review 35 (October 1986), in

which the author states, at page 36: "In my opinion, oral

argument is an essential component of the decision making

process and plays an important role in assisting the appellate

judge in reaching a decision. As I recently wrote in another

article: The argument can isolate and clarify the core issues.

[Vague points, complex points, and points that were simply

overlooked] may become evident during oral argument."

(written by U.S. Circuit Court Judge Myron H. Bright); C.

HUGHES, THE SUPREME COURT OF THE UNITED

STATES, pages 61-62 (1928)(in which Mr. Chief Justice

Hughes wrote: “I suppose that, aside from cases of exceptional

difficulty, the impression that a judge has at the close of a fulli

oral argument accords with the conviction which controls his

final vote”); Harlan, What Part Does the Oral Argument Play

in The Conduct on Appeal?, 41 Cornell Law Quarterly 6, 11

(1955)(in which Mr. Justice Harlan wrote that oral argument

was perhaps the most effective weapon of the advocate and

advised that it should be given the time and attention it

deserves); Jackson, Advocacy Before the Supreme Court:

Suggestions for Effective Case Presentations, 37 A.B.A.

Journal 801 (1951) (in which Mr. Justice Jackson stated: “I

think that the Justices would answer unanimously that now, as

traditionally, they rely heavily on oral presentations . . . The Bar

must make its preparation for oral argument on the principle

26

that it always is of the highest, and often controlling,

importance.”); and Rehnquist, Oral Advocacy, 27 South Texas

Law Review 289 (Summer 1986) (in which Mr. Justice

Rehnquist wrote, at page 289, footnote 1: “Justices of the

Supreme Court of the United States have almost unanimously

agreed that effective oral advocacy is one of the most powerful

tools of the profession.” Mr. Justice Rehnquist then quoted

from the writings of Mr. Chief Justice Hughes, Mr. Justice

Harlan, and Mr. Justice Jackson mentioned herein and went on

to cite numerous other writings concerning the importance of

oral arguments).

Petitioner Linda Dagi respectfully submits that the

Court of Appeals for the Eleventh Circuit acted arbitrarily in

denying her request for oral argument and acted arbitrarily

assigning the case to the Non-Argument Calendar and that this

arbitrary action kept the appellate panel from understanding the

facts, the issues and the applicable law. Petitioner asks that a

Writ of Certiorari issue to review this arbitrary denial of her

request for oral argument and the arbitrary assignment of the

case to a Non-Argument Calendar.

Petitioner respectfully submits that, had her request for

oral argument been granted and Case Number 95-9501 and 96-

8025 been assigned to an Oral Argument Calendar, the

appellate panel would have understood the facts, the issues, and

the applicable law and would not have entered the erroneous

November 21, 1996 Opinion and Judgment, which decision

affirmed the erroneous October 24, 1994 Order denying

Plaintiff's Motion to Remand pursuant to 28 United States

Code § 1447(0); affirmed the erroneous July 31, 1995 Order

and November 2, 1995 Judgment granting defendant Chris

Motor Corporation motion for summary judgment, and

affirmed the erroneous November 30, 1995 Order and

27

December 1, 1995 Judgment granting the Motions for

Summary Judgment of Defendant Bayerische Motoren Werke,

A.G. (BMW AG) and Defendant BMW of North America, Inc.

(BMW NA).

Had oral argument been presented in this case, the

appellate panel would have:

A:

followed the binding precedents requiring

remand of the case to the State Court of Fulton

County;

would have followed the decisions of the

Supreme Court of Georgia and the Court of

Appeals of Georgia which established:

(1) — aplaintiff can elect to bring an action in

tort for common law fraud and

negligent misrepresentations recklessly

made without rescinding a contract for

purchase of an automobile;

(2) said fraud is not barred by an “as is”

clause in a warranty disclaimer; and

which decisions of the Supreme Court

of Georgia and the Court of Appeals are

binding precedents under Erie R. Co. v.

Tompkins, 304 U.S. 64, 58 S. Ct. 817,

82 L. Ed. 1188 (1938);

would have followed decisions of the old (pre

November 1, 1980) Fifth Circuit Court of

Appeals and the decisions of the Eleventh

Circuit Court of Appeals, including Nieto v.

28

Pence, 578 F. 2d 640 (Sth Cir. 1978); and

Huycke v. Greenway, 1876 F. 2d 94 (11th Cir.

1989); which hold that a plaintiff need not show

an actual intent to defraud in a federal odometer

fraud claim, but may establish a violation of the

Federal Odometer Act by relying on

circumstantial evidence to show constructive

knowledge that the actual mileage on a vehicle

are greater than the miles shown on the

odometer greater than the miles shown on the

federal odometer disclosure statement, which

decisions are binding precedents under Bonner

v. City of Pritchard, Alabama, 661 F. 2d 1206

(11th Cir. 1980), and the doctrine of stare

decisis under Hilton v. South Carolina Public

Railway Commission, 502 U.S. 197, 112 S.Ct.

560 116 L. Ed. 2d 560 (1991) and the rule of

binding precedent under Johnson v. DeSoto

County Board of Commissioners, 72 F. 3d 1556

(11th Cir. 1996) and

would not have affirmed the erroneous July 31,

1995 Order granting summary judgments in

favor of Defendants Chris Motor Corporation

and would not have affirmed the erroneous

November 30, 1995 Order granting summary

judgment in favor of Defendants Bayerische

Motoren Werke, A.G.-and BMW of North

America, Inc., since in both the July 31, 1995

Order and the November 30, 1995 Order, the

District Court weighed the evidence and made

credibility findings contrary to the controlling

legal standards applicable to motions for

summary judgment, as stated in Clemons v.

29

Dougherty County, Georgia, 684 F. 2d 1294,

1297 (11th Cir. 1982); Warrior _Tombigbee

Transportation Company, Inc. v. M/V_Nan

Fung, 695 F. 2d 1294, 1297 (11th Cir. 1983);

Samples _on Behalf of Samples v. City of

Atlanta, 846 F. 2d 1328 (11th Cir. 1988); and

i s

America, Inc., 974 F. 2d 1358 (3rd Cir. 1992).

CONCLUSION

For the reasons shown above, Petitioner Linda Dagi's

Petition for Writ of Certiorari should be granted.

Respectfully submitted,

THOMAS ALLAN RICE, ESQ.

Counsel of Record

for Petitioner Linda Dagi

YEHUDA SMOLAR, ESQ.

G. GRANT BRANTLEY, ESQ.

SMOLAR, ROSEMAN,

BRANTLEY & SEIFTER

101 Marietta Tower

Suite 3410

Atlanta, Ga. 30303

(404) 525-3900