Brief in Opposition — Goldlawr, Inc. v. Heiman

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Supreme Court of the United States

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Briefliof Mercan Guirants Prot ¢ eripans of New York.

Ne sateen:

Pveceutor. of the betate of Miareus Pein. Deceased.

mt Op pesitionm te Peution for a Writ of Certiorari

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Preliminary Statement ... Spaia in ees pork aie a :

STatement of the Case a atts ”

AIMS . : . ‘

Porxst TNo substantial or important qaesteon as

to Marens Heiman is presented for review. The

Court of Appeals for the Second Cirenit) was

Unanimous on aftirminsy the order below as te

him ape roan ures A ‘

Be .

2 Powr TL Petinener has eacquieseed in tlh at-

firmance as te Marens/ Heiman. The qnestion

presented for reyiew hae as to him. A re-

View as te Marens Heiman would be wholly 7

ineffeatual for lack of ,% Proper party upon

whom even a reversal might operate She

- ©

Post HL.-The judgment.of the Court of Appeals

sought to be reviewed is not snch a final judg.

ment and the issnes invelved as te Marens

Heiman are not of such fundamental majectanes

as to warrant a review bw the four : Mm

Point IV.-~There is no real confliet: of decisions

among the several Cirenit<: any disagreement

existing prior hereto has been resolved by the

decision below of the Court of Appeals for the

Second Cirenit by it having explained its earlier

decision of Shdler vo Mit Ohp Co... Ine. so

F. 2d 654 a 16

CoxeLuston 1%

i INDEX

TABLE OF CASES CITED — S

: PAGE

Amerio Contact Plate Freezers, Ine. vi Rrawles,

at et ee a Cre TG es a: 16,17,18,19

Anderson vo Yungekan, O20 USN. 482. 485 486 01046) IZ

Clarke vo Mathewson, PZ Pet Tod, 172 Ul S. Tso) 10

Continental Grain Co. ve Barge, FRE oss, 264 UL.

Be i ey 3 ae |) eee LU eens ees on Is

Cover v. Schwartz, 183°) F. 2d O41 (2nd Cir. 1942),

eert. dem. 318 US. 74s ; pa rar eee ee et 12

Ex Parte Slater, 246 U.S. 128, 133 (1918) =~... 10

Fistel vj Beaver Trust Co. 94 FL Sapp. 974 6S. D.

Dee oO hs ES Stingste wer cane SP a oe 16

Foster Milburn Co. ow.) Night. Ist FL 2d {49, 951-

952 ¢2nd Cur. 150) er Sete aie Oke eee 10

Goldiawr, Ine. v. Henman, Ji0.2 2a 129 (2nd Cis.

1959) - se ys See a ie

Groldlaw ge Dre, waHtman, Jas KF’. 2} aa tlna Cir.

Lead) pee 1, 2, & 16, 26

Goldlawr, Ine. vo Heauan, 175 E Sapp. @83 7S. D.

N.Y. 1959) 1 fe

Goldlawr, Inc. v. Shubert, 160 Fo Supp. 677 CF. D.

Pa. 158) a3

-

Goldlawr. Inc. vo Shubert, 25 FL Ro D. 276 6S. D.

N. XY. 10M) e et 6

680

\\

-

Hamilton Shoe Co. v. Wolf Brothers, 240 U.S. 251,

Sass DE)

Hargrove vo Leniswille & Nashville Railroad Co. 153

Fo Sapp. ost OW. OP Ky 1857)

Haves v. Livermont, 278 Fo wd sts cP ©) bogey

Hotrun vo Blasko S65 Ul SS. 2251)

Hohiensee wo News Svindieate, ine. DAA. FF. 2d 423

tard (ir Ted)

In Re Jesepheon, 22S Foc 17a cist Gir tod)

Triternatior Rottercsam, Ihe ¥; Theomsen, J1s | eT

O14 (4th Orr Peg : lt.

MeDanie! vo Drotman, To Fo Supp. O45 (WD Ky

ee)

: « 8 .

Mills vo Green, 259 US. 652. 88 1 Dsd)

Chl Workers> Uncons vo Misseuri, 362 ES. saa.

Seg «bat : -

f ¢

Gy Ce Si, peye tig & Trad tiv’ tw \ 1 thitend ee is... a ¥

mn Jt F599 Oth Cain WT 3

-

Petrojenum Pinaneal Corn vo Stone. TIO Fo Sapp

$26 0S. PP NY. 1940)

Sehilles vo Matto @e. ine dst Fl 2d eon + ned

tur Piya) ‘ = 1H.

The Monrosa vy Carbon Black. Ine. Soe 0S. ps0,

Ts} ee

Trailmebile Co ovo Wheris, 221 US a Dee LE

| PAuk

1,

Is,

lt

>

li

iv : INDES

United State. 4 W tein Lo] ke ss i © “se os. I>

ie. 25 eye ‘ 18

Wilson v Kiutnscs (its sS Is Ca. Jy -. Sapp.

i W }) Me. toys a : 16

st ATUTES AND AL THORITIES CITED

1 AM. JUR. Nhatetmient & Revival. Pootee ¢ Pele lw

Pe 2S. Nhaterient & Revival Teb c lini: lw

Federal Rales of (ive Procedure

Rule 25. a) 13,12

9 Buk Sib) - epee gs

Note. 68 Hary Lo Rex temo paay 8 18

BUS t.*4e22 13

IN THE a

Supreme Court of the Bniterd States

Octropre Term, 1960

No. 981

a

4d GotpLtawr, Isc.,

Petitiomer,

Mareros Hermes. Sereor Operating Corporation and

Usttee Rookine Orrtcr, Ive,

R. sponde nf

ne a | ee —

Brief of Morgan Guaranty Trust Company of New York.

Executor of the Estate of Marcus Heiman. Deceased.

in Opposition to Petition for a Writ of Certtiorari

Preliminary SMatement

Petitioner, plaintiff below, seeks a voritoef certiorar: te

review a qudgment of the Umiied States Court of Appect-

for the Seeond Coreuit which affirmed the order dated

January 27, 148) of the United States Pistriet Court for

the Southern Pistret ef New York." Saat order ili di-

Missed the complaints below as te the cerperate ce fend

ants, Select erating € corporratiean and United Book:ne

Office. Ime. for tack of jurtedietion ever the porson of said

. a

corporate defendants, and (2) dismissed the eomplaints

as to Mareus Heiman for lack of jurisdiction over. his

person and denied the motions of plaintiff to substitute

the executors of the Estate of Mgrens Meiman, deceased, ©

as party defendants in place of Marens Heiman (See pp.

Tla fla oof appellant's appendix in the Second Cireuit).?

The affirtnanee be the Conrt of Appeals for the Second

Coren? as te respendent VPirens Terman Was unanimous.

Croldbanvd, Tne vo He oman, 288 Fo 2d TO, 5ST

The qQhesfion presented f T review hy petitioner,

namely

“Whether the Distuet Court for the Eastern

District of Pennsvivams ° ° © liad the power to

transfer the case fer umpreper venne under 28

UoS0 ©) 414066a) withonf having obtained personal

Jurisshetion over the transferred respondents?’

(petitroter’s brief, Pp. ?.3).

does not bring op fer review the propriety of the affirm-

ance as to Marens Heiman. The position of respondent

Marcus Heiman on this applieation is different froftw that

of the two corporate respondents. eS.

3 Vhe arder wis tied evryels m %an wit actions Nos t44 735

and 344 sa* s 1 t .. aS i SRA eptitied “Gel'llawr In

Plontf vo Molten Shubert) Wilham Rie. Svivia Wo Golde. Marcus

Heiman. Select Operaueg Corporation and Uroted Booking Office.

In Defendant.”

The Ceart of Aeqenis_for the Second Circuit had orginally die-

miseed the anoes) taken Arar Me LPhiotr ¢ Qeeret pursuant te Rule i465)

of the Federal Rules of Cow Preeethare Gralidlewe. dec vo Heamon

274 F 24 Tle) bat on reheating permitted the Postrace Court to

“erter a fresh dectee for an apoes) pursuant te 2s US C 3il92cb)

Goldawe v dlewman. 27> Fold 729 731

-*

Statement of the Case

Marcus Heiman died a resident and domiciliary of New

York, New York, on September 9, 1957, almost eleven

_months after the first complaint was filed (C. A. No. 22092,

U.S.D.¢., ED. Pa.; 144 245, 8S. DON. YY.) The Mergait

Goaranty Trust Company of New York and Asher Levy

were issued letters testamentary by the Surrogate’s Court

of the State of New York on October 1, 1457.4

On Mareh 3, 1959, the date the United States Dystret

Court for the ‘Eastern Distriet of Pennsylvamia ordered

the actions transferred to the Southern District of New

York, Mareus Heiman had been dead some fifteen months;

he had not been personally served with process; the [hs

trict Court had held that Mareus Heiman neither was

found nor had an agent in Pennsylvania and hial dield

venue there improper as to him (Goldlaer, Inc. v. Shubert,

160 FL Supp. 677, 679 682; petiteener’s appendix Bo pp

2a-23a); Marcus Heiman had not\waived lack of jurisdic

tien over his persen or improper venue; his erecafora had

not heen substituted as party defendants; there had been

no appearance by the Estate of Marens Heiman: the

estate had not received any legal notice of the pend: nev

of the actions; there was ne one before the Dostret Ceut

at the date of transfer authorized te represent the de

ceased. Maren. Teiaman. or his e<fate.

in the Lo riteed Stortes

riet of Penusvivan a

The Marshal's returns of servie

Distret Court for the Fiastern

for Marenus Heiman in eee of the action. stated im sab

stanee that serviee had been made upon Mareus Heiman

by jeaving a copy of the sumumeons and complaint- with a

‘ By an intermed ih fee ot thay Sorrog te C net { teed Tian

1S) $400 Asher Levy was permittee: to ressuom an’ Moron (saarants

Prust Company of New Vork «a. appormted se bac titer ot the

be-tute of Marcus He man

Li)

G

woman in charge of an office at 209 Quince Street, Phila-

delphia, Pennsyivatia, and that service had been made in

that manner on the advice of plaintiff's attorney (R. 18,

501).

Plaintiff's attorney knew Mareus Heiman could only be

served) within the Southern Distriet of New York. At the

time that plaimtut’s attorney directed serviee on Mareus

Heaman in the forege@ng manter, he direeted the Marshal

in New York to serve the defendant knited Booking Office,

Ine, of whieh Marens Heiman, was president and a

director, by serving Mareus Heiman at his business **236

West 44th Street’ or at his home 24 West 55th Street’,

New York, New York. (See Exhibit B-1 to affidavit of

Harold E. Koehn, Esq.. sworn to June 17, 3959, at R. 217,

226, 736, 745, printed at p. ISb of the appendix of the

exeentors of the Estate of Marenus Heiman in the Court of

Appeals for the Seeond Cireuft.)

After she returns of service as aforesaid, Marcus

Heiman and other defendants in each of the actions moved

to quash the respective returns of serviee and to dismiss

‘the actions for lack-ef jurisdietion over their persons and

for improper venue.

.

In oppesing these motions petitioner made no effort

whatsoever te sustan thie serviee upon Marens Heiman or

to sustain Phoiade!phia as a proper venue as to him. Peti-

tioner filed a Sl page affidavit, a 12 page brief and offered

Velutminens evetence and deenments in oppesition to the

motions Not one word was offered by petitioner te -up-

pert the venue as to Mareas Heuman or the service upon

him (R. Toe),

Marcens Herman died after argument of these motions

but prior te their theca feeds, Petitioner Wis officially in-

‘ k ters To Tages of R. ved on As, «a) iD the Court of Appeals for

the Second Circuit

f *

formed of the death of Marcus Heiman in January, 1958. ,

Nonetheless, petitioner took no action to substitute the

executors as party defendants or to inform the Court

(R. 234).

On December 22, 1958, Judge Kraft filed an opinion in

both actions sustainmig the motions of Mareus Heiman te

dismiss for improper venue. Goldlawr, Inc. ¥. Shubert,

169 F. Supp. 677, 679-682. Judge Kraft did not pass upon

the motion to dismiss for lack of jurisdiction: over the

person of Mareus Heiman presumably beeause he was

prepared to dismiss for lack of improper venue. When

Judge Kraft reversed his opimien and ordered transfer

instead of dismissal, he continued to disregard the motion

to dismiss for lack of jurisdiction over the person. Peti

tioner has conceded that jurisdiction over the- person of

Marcus Heiman has never been acquired. Gold/aws, In

v. Heiman, 288 F.2d ATI, 5824

4

After transfer to New York, ‘petitioner served upon the

executors notices of. motion dated May 11, 195th to sub _

stitnte them: as party defendants in place of Mareus ©

Heiman (petitioner’s appendix in Second Circuit, p. 62a).

For the first time since the death of Mareus Heiman.

some eighteen months prior thereto, the estate was given

legal notice of the pendeney of these actions again-t

Marens Heiman. Untl the applieations te substitute th:

eNecnutors were miade hefore the United States lustriet

Court fow the Sonthern District of New York, ne paprete

of any name, nature or description had been served ot

filed upon the estate. A formal claim had net even been

filed in connection with the proceedings before the Sur

rogate’s Court. After service of the ta of motion for

snbstitntion, the executors appeared ig the District Court

* Plaintiff in fact atmitted service would have tu te effete! in New

York after transfer See Exhitit ©) at page 14+ of append: of Select

Operating Corporation ef alo in the Second Circuit ~ ae

e,

/ ae

ag

for the Southern District of New York to oppose them and

to cross move for the dismissal of the actions. (See pp.

tb-3b of appendix of executors in the Second Circuit.)

y The disinissal by the District Court for the Southern

District of New York (Goldlawr, Inc., v. Heiman, ljd F.

Supp. 793) did not eee or pre-

elude hin from his day in court. The origimd{ actions are

still pending in the United States Distriet Court for the

Bastern Distret-of Pennsylvania against Jacob Shubert,

Lawrence Shubert Lawrence, John Shubert, Select) The-

atres Corporation, Modern Theatre Corporation, Barry-

more Theatre Corporation and L. ALB. Amusement Cor-

poration.?. The transferred actions are still pending in

the United States Distriet Court for the Southern District

of New York as te three defendants: Milton Shubert,

William Klein and Sylvia W. Golde. (See Goldlawr Ine.

vs Shubert, 25 F. BR. 2D. 276, 8. D. Ny es 1950.) [mme-

diately after the dismissal below as to the respondents

petitioner instituted a new action on August 20, 1959,

naming as defendants the Executors of the Estate of

Marcus Heiman and the two eorporate respondents (C. A.

149 S49 SLDONLY.) 0” This third aetion seeks $2.150,000.00

treble daniages of which $1,050,000.00 is sought from the

Estate of Marens Herman for the period Angust 20, 1955

to September % Tod (the date of death). Issue has been

joined in’ thos latter action.

& °

T According to petinoner’s own statement. Jacoh Shubert is the

principal defendant in all of these actions. In its brief in) sunport,

of its petition st nage 4. petitioner stetes: “This is a private artitrust

action brought * * * again-t Jacob Shubert and several other persons

and vuorporations identified with the Shubert interest. * * #."

* Plaintiff. upon being alerted bv the motions of Mircus Heiman

te quash service and to dismiss ete could have protected its rights bv

starting an action in 1986 against Mareas. Heiman during his life-

time in the Southern District of New York: instead plaintiff chose to

watt three vears 7 aS

~~]

Argument

Although petitioner appealed to the Court ef Appeals

from both the dismissal of the actions as to Mareus Hei-

man and from the denial of the motions for substitution,

and although petitioner advanced below several arguments

to sustain transfer as to Mareus Heiman and to justity

substitution of his executors as party defendants at such

late date, on this application petitioner (1) has limited its

request for review to a single question having no etfective=

bearing on the issue of transfer with respeet to Marcus

Heiman specifically and liaving no bearing on the issue

of substitution of Tis executors as party defendants; ane

(2) has limited its argument to seeking a review of the

propriety of the transfer with respect to the corporate

respondents only.

In opposing the present petition for certiorari, Morgan

Guaranty Trust Company of New York on behalf of re-

spondent, Marens Heiman, respectfully urges the follow:

ing points:

1. ° No substantial or important question as to Mareus

Heiman is presented for review: the Court) of

Appeals for the Second Circuit: Was unanimous “Mn

affirming the order below as to him:

Petitioner has aequiesced in the affirmance as to

te

Marcus Heisman. The question presented for re

View is moot as to him. <A review as to Mareus

Heiman would be wholly ineffectual for lack of a

proper party on “whom even a_ reversal might

operate ; :

3. The judgment of the Court of Appeals sought to be

reviewed is not such a final judgment and the is-

sues involved as to Marcus Heiman are -not of such

ty

fundamental importance as to warrant a review by

the Court;

4. There is no real conflict of decisions among the

several circuits; any disagreement existing prior

hereto has been resolved by the decision below of

the Court of Appeals for the Second Cirenit by it

having -explained its earlier decision of Schiller

ve MitcChp Ce.. Inc, 0 F.2d 654.

POINT I :

No substantial or important question as to Marcus

Heiman is presented for review. The Court of Appeals

for the Second Circuit was unanimous in affirming the

order below as to him.

Judge Hincks of the Court of Appeals began his dis-

sent as follows:

‘*T agree with my brothers that the order below

as to Heiman should be affirmed."’

Goldlawr, inc. v. Heiman, 288 F. 2d 579, 5S7.*°

Judge Palmieri in dismissing the actions as to Marcus

Heiman and in denying the metions of. plaintul! for sub-

stitution of the executors wrote:

‘Marcus Heiman, a New York resident, was

named as an ofiginal defendant in the action inmsti-

tuted in Pennsyivama. Although he died in Sep-

tember of 1990, the order of March 1959 imeluded

Heinian among the defendant~ as to whom the ae-

tien was transferred for lack of venue.

\

ee eee

* The balance of his opmmon is directed to the issues as they affect

the corporate respondents only

|

(-

9

Heiman was not found in and had no agents in

Pennsylvania. Goldlawr vy. Shubert, 169 F. Supp.

677, OSZ2 (1998) See Clayton Ket §4, 38 Stat. 731

(1914), 19 U. S. C. §15 (1958). He was. never

(1914), 15 UL S.C. 15 (1958). He was never served

os personally in Pennsylvania sor any other place.

The obvieus lack of personal jurisdiction over

Heinaan and the resulting invalidity of the transfer

under 28 U.S.C. £1406(a) would alone impel this.

Court to grant the cross motion te dismiss.

Incaddition, passing consideration of the cross-

motion, it is doubtful whether Rule 25(a)(1), Fed.

R. Civ. PL. may be invoked to authorize substitu-

tion of the executors for a defendant who neithet

appeared nor was served with process. See United

States v. Field 25 Fed. Cas. 1067, No, 15.089 (C. C.

S. D. N.Y. 1850), Note on Revivor, 14 Fed. 392

(1882); ef, Carnes v. Strait, 270 S. W. 2d 920 (Ark.

1954). Substitution at this late date would be

pafticularly anomalous since the motion to transfer

from Penngglvania was interposed for the first time

; after Heiman’. death. Therefore at no time during

his life was he amenable to service of process in

‘this action.”’

Goldlau 1. Ene. v. Shubert, V5 Foe Sapp. 793,

797-798,

aN

Petitioner first meved te substitute the Executors of

the Estate of Marens Hemian a- party defendants onli

alg tratister te the Southern Distriet of New York. At

the time of transfer there was ne party toe’ the actions

pen whem service woth respeet to Marcus Heiman could

tie Ofec tod \ thin *the jurisdiction either of the astern

Distriet of Penunsyivasia or the Southern District of New

Ps

10

. =

s

York. Amenability of process in at least the transfeFee

district has always been held a condition precedent to a

proper transfer. See and Stef’? Hoffman v. Blaskhi, 363

US. 330, 341-242: Foster Wilburn v. Anight, 181 F 2d

949, 951-952 (2nd Cir., 1950). Only the exeeutors of the

Estate of Marens Herman were amenable te process in

the Southern Distriet of New York, but at the time ‘of

transfer they were not parties to the action,

-

Not only was there no party in the Southern District

of New York at the time of transfer capable of bemg

served with process us to Marcus Heiman, but also no

valid: anc effective order of transfer could be entered as

to a deceased party Whose personal representatives had

not-been brought before the Court. The Distriet Court

in the Eastern District of Pennsylvania did not have the

power to transfer the actions until they were revived and

continued by the proper substitution of the Executors.

Er Parte Slater, 246 U.S. 128, 133,; Clarke vv. Mathew-

son, 12 Pet. 164, 171 (U. S. 1858); 1 C. J. S., Abatement

and Revival, £161, p. 213 (1936); 1 AM. JUR., Abatement

and Revival, £159, p. 105 (1926).

These foregoing rules of law being fundamental, not in

dispute, and having been applied by thissCourt, raise no

substantial or important issue to be reviewed. Petitioner

concedes this by virtue of its not having advanced on_ this

appheation, any argument in this regard. Review as to

Marcus Heiman should be denied. |

eo ey

foe

POINT Ul

Petitioner has acquiesced in the affirmance as to

Marcus Heiman. The question presented for. review

is moot as to him. A review as to Marcus Heiman

would be wholly ineffectual for lack of a proper party

upon whom even a revefsal mht operate.

As to respondent Marens Heiman the eourt below (i)

distuissed for lack of jurisdiction pver his person and (i)

held ‘*that the Exeeutors could net he substituted pur

suant te Raie 2ou:)(1) of the Federal Rules of Civil

Procedure’. (Petitioner's brief . p. a, note **2**.)

Petitioner does net seck to review any question with

respeet to the denial of substitutior and does not seek

to review whether the United States Distriet Court) for

the Eastern Distriet of Pennsyvivania eonld vahdly trans

fer an action as to a decedent who was not before the

g conrt and whose personal representatives had not) been

substituted prior te the transfer. Petitioner advances ne

arguments in respect thereto and has accordingly ac.

quiesced in the affirmance as to) Matrens Heiman. ~Peti-

> tioner limits this application for review to the propriety

of the transfer as te the corporate respondents only.

I rieder theese eirenms tiatiees, the ‘yite <tion prese ted for re

View Gs tect as to respond nt) Marens Heunan.

re ee the duty of this Court ° ° ° ‘is te deeide

actual controversies by a judcment whieh can. be

enrriesd i! tis etfeet, nid not te vive Opinrens Nyon

Mioot cdestions or abstract propositions, or to de-

clare principles er niles of law which cannot affect

thee tucatter an iss iho the ense before itt

Chi) Workers Unions ©. Missourt. 361 U.S. 3623,

367:

Mills vi Grreen, 159 U.S. 651, 633.

12 oe:

Sve and *+ef,°* Corer Vv. NS; hwarte, 133 F. 2d 541 (2nd

Cir. 142), cert. den. SIU UL S. 74s.

The petitioner no longer seeks to substitute the Execu-

tors of the deceased, Marcus Heiman; nor should this

Court exercise its diseretion to review the issne inasmueh

as it is net speenticnliv ass ned as error ion the petition

for certiorari, Tradmobele Co. vo Whorls, SSE UL OS. 40,

45; see and “ef? The Montesa vo Curhen Black. Ine.

tae tS. 380, Feet, Accordingiv, even at this Court) an-

swered in the affirmative the speeitie question sought to

be reviewed hy petitioner, there weld be me party with

respeet te Marcus Pleaman upon whom a reversal could

he effectual The tse is meet as te Mareus Heonan.'”

Te compeb the Estate of Maren® Hernan to proceed

further with Vs appeal where the petitioner has ae-

quieseed in the affirmanee and net present for review

any specific questions with respect to Mareus -Heoman

would work a manifest pregudiye to the estate and would

be disruptive of its adnm@ustfation. There is pending

below a third action brought’ by petitioner against the

estate seeking from it $1,050,000.00 treble damages. Thus,

ho prejudice can result to the petitwener by denying cert:

orari and limiting petitioner to th® proseention of this

action pending below. Review should be denied.

2

wwe. ee as

dr as doubtful whether at thes late date “me < sveirs and 9

months after the death of Marcus Heiman othr. Concrt coe door neerts

pevmit substitucian of the executor o< a part, defen lant See foder

‘ony Vunckrw 699 [| S 48% 455 Sur FR: ¢€ P <2

Sond

13

POINT 1H

The judsment of the Court of Appeals sought to be

reviewed is not such a final judgment and the issues in-

volved as to Mareus Heiman are not ef such funda.

mental importance as to warrant a review by the Court.

The Court of Appedis for the Second t(urenit: heid that

Ue cteder of 10h pan, oof thee lenitead States Pstriet Court

bet the Seathern Destrict ot New Visor ws too thee bem preted

etits choed tet bisive TP haiity fee wis to ppeliate qurtseie

aeots, Cnecesddecsen Pare v. bbe cancan ga F.3d C8 The Court

Of Npipenis ory MEV Petaned fe accept apypeilate jars

ehietions feaditise Shae oe Biapese to = at toe atlaedtend eri owe Samar

CMOS GEN ccaN itige otiltiit ipod wtlies= satis the Order of - the

ca } j

District Court a “Hhisneed Mie aeTiotn only as to seme hat

ater -

tel as te ai;j of fist poate

Petitioner filed ite se aetions sok Ne Prete sdamiawes for,

isles SPIE N pew test tee Pecos gar agi te eed sttiarhe eomspiracy

ate Wiwebsatieets cof thee Sheeertrcet Ant test Vet, To ft a. ¢

1 are, 2 Thy coteplamnt, a. a1 dead are dential.

Civ Action Mf bet 24s Wate erurihay Niet im the Uristened

States Phetriet r eur? fer the Bactern Pystriet of Pennswi

Varin of Oeteber To, Tt as Civil Aetion No S156) The

companion wetion, € vil Netion Ne -T4d 2a. eas ay iagitesalls

Ned oon Fibers Pm. 3935 94 peer P-triet of

Perrnsvivatnin as ¢ ‘, Atrom Nos Mion) Reathy Obyaomar ene

Tiest ds ory tory! <4 Pa | f ’ ¢ rs : ger? cree i@ sy \;

. f wier date 4 ! ‘ ‘ R ;!

.

S43 2 ; te ” . a) Bare

24 2 4 j . * | a? s

7 ipPryz

-

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4

tion Nos 1448 45 amd 144 244) are likewise still pend:

ig im the PPstriet Caurt for the Senthern District of

New York a= ter thre ef Perriedcants, Milton Shubert, W ilitam

Rien amd Selvia Wo Golde

After dismissal as te the respondents at bar. petitioner

fhefiitted a third actim in the Enited Staten PPntriet

Conet fer the Sorthern District af New York onarmiony

Thies Parersoeniy Cor pooriats resp smebont’ stad thie aN ers Wer en

he Bixtate of Marcu. Heiman as Wh fersdiants his there

ete ated the aeciets Jelow peteding avant the afore

thre fiestion] theres aethiges de feems lent. hinve Views ti Cortracst lated

feet lgrpess sof tra]

Thi- Court shold refi. teh ettertain the Peet ap

Bieston as if ix net such a Sek) iadeanent ‘HVelving

issttes af <reh Prrvedioge ental anal « Vtraarc nary Priqreer? seriew

aa) thee. rexpendent Mis ren He trian te Warrhn? 2a review

J}. TReotieer well tyeet be pererrrrebeeend yf ecg scone ps tferteyead

fegtitioner will til have its actions a1 Philadelphia

aearnst ti

Be wih cert!

Wiliam Klee and Svlvia Wo Golde and Cis] Action

144 499 woth resteet te the respondent. at bar

prince pal defendants, melutise Iaeah Shobesrt

tiever the mettre below me te Volta: Shubert,

;

That th. Courmba. ewer te review a nen Goal pate

een? GN 8 Prater cites @x imeuestionad BRyt thiss Ourr

hins <a | “ee

“A+ has pF ruians titties deeclarmal, This creview

ef ow ven-fical judgement) -. 2 jurisdiefion ta be

exercised sparingly, ated oniv in cases of perctaliar

ras TV aed genery!

secre Nh @ormty nt deciciah. © * * OTHE, Nae ged +n

exfracrdinary cases, the wrt o. me: issued ote!

final decree * © © ° ‘

Hamilton Shoe Cy Wolf Bre othees 200 1 &

sh. 256

> a

The isstes “w th respeet to” Marco bdes:saecan are not so

OND Pare Hath jing et Peeuia SEAVITY tes justity review,

That Beet eloes gat hive power te pte against ua

Party why, bas diet, who was never pret setialiy served

4

With PPPencees tiring hiss bifetirie waniel “ hice personal rep

Fesentarives diaed rej dee Hos dates ti ayleed jana) beresueht Pormice

Hie Ces t = Fett =< rweh) wri ON rior EN Pe Perponi tient af

iiaw that sfiesichl ba ore w.keRM eh TEE bet Ubi ei a: sta teagan pore

“etited af har - Print Fo say Here Where several ac

frets albarsing fram the sante Fittcgtion are ~Tib peenidinig

feiowWw ated where pecitvenmer weil gots bee prenhaded. from

fis “day in corte Court, theild reface te entertain

thie Pereseret aapepstecuet eee Von pereruedbee claimed by poets

Prestiert hy Virtiie of fissing At< eartines: Pero reduced ps

HW TesMiD GD pe tititier’s own telivo and nad fath in ore

nay Mestituliny ti “© #¢Toons an DWat as te Marre. bie

tnanoim the Parti State. I) strict (ourt for the Ka-tern

District of Pernsvivanin when of kKhew oof contd have

ergitally arcnipest pirisdetion aver Mareas Henan ane

many of the other defemdants by instituting this action

im the United States Msteiet ¢ cope for the Southern Dis

treet of New York! bisadl elo haveng tive different

aetiots pendiag frem the same litigation as ot the case

currently, petitioner would have had at the thostoanty twe

.

i :

ER... ‘ 4 ~Feevtifel * 06 ste? end

16

POINT IV

There is no real conflict of decisions among the sev-

eral Circuits; any disagreement existing prior hereto

has been resolved by the decision below of the Court of

Appeale for the Second Circuit by it having explained

it- earlier decision of Schiller ¥. Mit4+ lip Co., Inc., 180

F. 2d 6354.

The Court of Appeals for the Second and Third Cie-

enits are in agreement that transfer without jurisdiction

over the person of a defendant is invalid. - Hohensee v.

Neies Syndicate, Inc. 3 Cir. 280 F.2d 22% 5 Goldlawr, fue.

v Heiman 2 Cir. uss F. 2d o7.'*

The epinions of the Court of Appeals for the District of

Columbia and for the Fourth Cireuit: on their face indi-

eate disagreement with the foregoing. See Amerto Con-

fact Plate Fareccsers, dnc vo Ranowles, 274-°F 2d Oo cb ¢.

160): Howes vo Livermont, 279 FL 2d sis op ©. Limnly

Intermatio Rotterdam, Ineo v. Thomsen, 218 Ftd 514 (4th

Cur, WN Mewerer, mo real comfbet erists. The Court

of Appeals for the Instrict of Columbia in holding that

personal jurisdetion was net necessary relied prounarily:

on the opmmen of Te Court of Appeais for the Seeond

> > ~

'e Phe Cart of Apps te the Biest Cort hee indy ated: its

>» *

rcree th He i: lu +e i, ~'h te tk |} 173 at TSS % Shes

os)

Coartt of Aye waive tated that transter would ‘e improper te. “not

‘

17

Wee

Cirenit in Schdler vo Mitel p Co supra, and upon other

decisions steramiing from it. CSee nm. Wa. erfra.)

Both Judge Moore for the majority and .Jindge Hine ks

in his partial dissent reeounized that relanee on the

opinion of the Court of Appeals in Scoller vw Mirehp ¢

supra, Was misplaced. Judge Meare at 2ss Fo vd STu 384.

wrote: ;

ting transfer under section

we 1 RMI a) tlespite a flack of personal jurisdietion

j over ‘the defendant indicate that the view that the

section authorizesf/transfer even in the absenee oof

personal jurisdiefion over the defendant had its

genesis moa misconer pleon af the holding of this

Court in Schiller v. Mit-Clip Co., 2 Cir, 150, 180

waa - FP. 2d 654° °°) The «nwarranted eonstruction of

the statute based on Schdler has gained curresicy

by Virtue of repetition.” (Banpbasis added.)

The eases, dire

Judge Hincks at 288 Fo 2d 579, S87, footnote 1"

‘stated: 2 . ~—

“A

a4 agree with the Judge below and with my

‘brothers that the decision of this Court in Schiller v.

Mit Chip. 180 Fo 2d 654, does net speak to the pre

cise question new raised although other case have

e* e @

witen Seloiler a teore capansive reading

That the Court of Appeals for the Distriet of Columbia

relied on the S:} ler ¢ ease cannet be doubted. The Gourt

wrote:

_ The Court's lack of jurisdiction over the per-

son of the defendant is immaterial. Schiller vy.

Mit-Clip Co., Inc., 2 Cir, 180 F. 2d 654; Intérnatin.

a

18

Rotterdam, Inc. v. Thomsen, 4th Cir, 218 F. 2d 514;

Oren Sheppmna & Tradna Co. ¥. United States,

9 Cir, 247 Fo 2d TA5, United States vo Welch, D.C.

11 FL Supp. 804; Petroleum: Financial Corp v.

Stone, D ©. 116 F. Supp. 4.6."°

Amerie Contact Plate Preesers. lee. vo Knouwtes,

274. F. kbSon, 54."

The tase oof Daternates Bette rium, Ine. OV. Thomsen,

supra.is an admiralty: deeston which hkewise may not

be relowd npen. Thos Court ha mily reeentiy recogn zed

R tween eivil actions such

as the action at bar and @i<es bronght in admiralty. © See

and aes, ee Hoffman vo Blasks, 262 U.S. 855 (1960), and

Continental Gran Co. v. Barge, FBLA 585, 364 U.S. 19,

21-22 (1960))) The reasons underlying the different treat-

ment of transfers in civil actions and*admiralty cases

were recognized by this Court therein. Furthermere,

the diffeulty, of acquiring Jurisdiction over a defendant

whose ship may be located on the high seas for a period

‘extended by the Statute of Limitations justities the dis-

tinction.'*

that a distinetion is to be made

* Note that United States vo Welch, 151 F.Supp 899 (1S DON. ¥.

1987) relied on the S.4sller case. Poteoleam Fotoncicl Cerp vy Stem

1s Fo Susp $26 6S DON YV. 198%) relied Lhewese on the: S-hilter

tase, a'thoughSshe Di-triet Court had “seriou. dou) es upon the mut

ter typ 327. $99). Orton Shipping ¢& Feeding Company vy United

Mates, 247 F. %4 733, 69th Cir) 1927 yas an admiralty deci-san which -

Is patently Mappreahle hecause the transferomeeart head personal

f jurisdy.tion over the defendant tsee comeurring open pare TSS)

Eurthermore. appellee in the Amerto Coe t case conceded in ite brief

that appellant's eehance on the Nobiller case wos correct haut argued -

thet transfer was improper because the court hod not a@btained jurts-

dhohan over the sulvect9 matter rts Hees beref on uw wal to the

Court of Appeals for the District of Columbia No 13.150. pp 12-13.

1S) t

'* See Note OS Harv Lo Rev 169 (1958)

e

.

a 19 =

Accordingly it omust be assured that the Court of Ap-

peals for the Phstret ef Colurtia will ne Jenger apply

the reasoning of Mares Contoct. Plate Freezers, Ine, “

Knowles, sapra. inwemuch as it museonstraed the Si ifiler

ease and also improperty rebed upon deetrsions im ¢ ir

altv.'? Nw Fens until sneh time that the Court of . ppeals

for the Distret of Columbia or of anoth®r Cirenit ex

presses disagrvement wath the decisions of the Second

wned Third Corenits, tie renal cout! et among the Cireuits

ean presently be suidd ter exist. Fear the foregoing rendsons

the petition at bar presents mo question eoneerping the

operation of the Pederal pacberal =Vstem requiring review,

The petition should be denied. >

CONCLUSION

The petition for certiorari to the Court of Appeal

for the Second Circuit should be denied. . .

aes Respectfully submitted,

Aano® Lirren,

om Ricnare Bo Daxxenpers,

° Atformsus for Moraan Guaranty Trust

Company of New VarkBrecutor

of the Estate of Marcus Heiman,

Dhereased,

41 East 42nd Street,

New-York 17, N.Y.

Of Counsel: 4.

: : - = = ae

Lipper, Suixs & Kereriy, Esqps.. .

41 East 42nd Street, ;

new York 13. TV. -:

17? Th. dewssion in Af e [yteemow 2749 3] { SIS UDC Tonh)

rehes a dake the Courts earlier decisson in’ dmeno Cantict Plate Frees

ers, Ine, ears and on f ne Kiotterdim [nie % Thomien. ters

nete Judge Bazelon im a concurrence relied solely on the Amerio, Contact

Plate Freezers decision “Accordutviv the Mayes decision suffers from

the same infirmities as the Amero Contact Plate Freezers decision.

47