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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1997
- **Citation:** 521 U.S. 1120

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0633%3A1. Public record. Not legal advice.