*1 cellular marketing of Ameritech’s Act does because telephone service are not sales.
apply to transactions (6th 9, 12 Cir. Cox, F.2d
Parrish v. as intermediaries
1978). act users; its service Ameritech and
between resell and then buy the services
they do not See Seaboard to the customers.
them Corp., 770 F.2d Congoleum v.
Supply Co. Therefore, transac (3rd Cir.1985). Ameritech
tions between telephone service
involving cellular applicable.
sales, Act is not and the
VI that the district hold
Because we motion Ameritech’s
properly granted the substantive
summary judgment on the issue of
claims, need reach period limitations contractual
whether portion of the
precludes any discrimination. alleges price
claim reasons, AFFIRM foregoing
For the district court. order of the CLUB, doing business
DIAMOND Krynzel,
Yesterday’s; Jennie
Plaintiffs-Appellants, OF NORTH COMPANY
INSURANCE Defendant-Appellee.
AMERICA, 91-3277.
No. Hall, (briefed), Tucker Michael L. Tucker States Court United Brannon, Bran- Fullenkamp, Dwight D. & Circuit. Sixth Caras, Dayton, non, Gianuglou, Dankof & OH, plaintiffs-appellants. Decided Jan. (briefed), & Karp Ulmer L.
Marvin Bartlett, Cleveland, OH, Berne, P. Robert Wall, Womsley (briefed), Coolidge, & Jr. OH, Lombard, defendant-appel- Dayton, lee. *2 on the district court to federal NELSON, fendant and MILBURN Before: the citizenship and HOOD, diversity of of District basis Judges; and controversy. in
Judge.* amount an ar- company asserted The insurance ORDER hypothesis predicated on the defense son question of Ohio on a turns appeal This by the individual fire had been set prece- controlling Ohio Finding no law. son, vice-president of who was plaintiff’s question dent, the state law we certified manager of the plaintiff and corporate the Supreme Court the The district court corporation’s business. of Supreme Court’s XVI Rule meritorious eventually the defense found Practice. the insur- in favor of judgment and entered addressed he perfect- then The company. ance filed in our question in law state this court. ed received acting on advice and briefed, fully the issues had been the Clerk someone in from entered an argument, we but before oral for the Court, case in detail facts of the stating the order erroneously—that appellants concluded— following certifying the and necessary for him of Ohio: Supreme Court No brief Supreme Court. in the new brief pre- time incendiary within the or having filed are the been “To extent rules, by its offi- of an scribed actions material concealment for want sponte sua cause corporation imputed closely held cer for re- subsequent motion A prosecution. preclude as to corporation so was denied. the dismissal consideration policy recovery corporation’s under the insured?” in which is fire insurance directing the an order thenWe entered why sanctions appellants to show Supreme Court the Ohio XVI here. against them imposed Practice, effective became which sanctions specify the did not Our Supreme Court 1990, gives the July ap- considered, dismissal of law certi- questions to answer discretion possibility. anwas obvious peal courts; fied timely were Briefs an affidavit and its discre- free, in exercise of response to our show filed or all of to decline for deci us matter is now before XVI, it. See certified questions follow, we shall that For reasons sion. provides XVI of Rule 1 and 9. Section §§ discharge the show “may require Supreme Court announcing our de any portion all or original copies or this circuit cision, the bar of we caution certifying court.” any record before rules comply with failure to part that pertinent 7(A) provides may lead not in future matters party designated “[t]he court, but in state dismissal only to moving party as the certifying [here court as well. dismissal and served appellants] with twenty days of order.” of the certification case, corporation in this as we have In the instant stockholder, brought a state its sole the brief failed to file plaintiff-appellants the de- against pleas court action common law- called for money company insurance fendant matter certi- previously had a yer had allegedly obli- company was the insurance Court, the certifi- fied to the Ohio con- fire pay insurance under gated in effect for procedure cation by the de- The action was removed tract. * by designation. Hood, tucky, sitting Joseph M. Honorable Ken- Judge the Eastern District District happened, for what personal responsibility only a handful years two than less the cer- during circumvent intent to having been disclaims cases lawyer reviewed tification, penalize urges time. us not to “shall” be clearly says that which his alone. a mistake that was clients for *3 twenty days, filed and served no delib- that there was We are satisfied briefing that had light of the extensive to avoid attempt erate given the com- already completed, question of dispositive court decide in our the case prehensive statement file their plaintiffs chose to state law. evidently felt order, lawyer all; court, choice of case in state after superfluous. be that another brief would defendant’s, not was the the federal forum secretary call had He therefore lawyer made an hon- theirs. The to of the Clerk mistake, publication to filed. our view. really had est if ask another brief told, according to her embarrass the secretary was of this order will doubtless another affidavit, sworn hope that it will plaintiffs’ lawyer, that the Su- mandatory and was not brief lawyers other such forestall mistakes consider preme Court would the future. relayed this informa- tion. The that severe There can be assurance no further lawyer, tion to the who be visited sanctions will henceforth until after the action to heed the any party counsel fails whose prosecu- the cause dismissed warning give. member of now One tion. panel the mistake present believes II enough to egregious was committed here dismissing appeal, and a justify our gives Rule XVI § by more than might taken similar view any access to all or judge problem if of this sort one briefs) (including the portion of the record again. tiff-appellants' arise plain in our he had lawyer knew that the brief particu- the circumstances of Under filed here was available panel concludes majority of the lar nothing lawyer had of sub Court. imposition such a severe sanc- said in that add to had been stance to appeal is not neces- dismissal of the tion as why might brief, and we can understand yet sary. lawyers realize have We logical him to ask whether seemed have see how Rule XVI had much occasion to necessary new would be we are confident operates practice, nothing say. Given if he had new' even least, lawyer, at will 7(A), we have wording of § again. recognize, not misread the rule We why understanding difficulty in some too, need not that the Ohio unnecessary thought it lawyer should have any precaution of take the minimal even court; judgments the feder- final federal written confir sending hand, courts, understanding on the other that a new al district of his mation moving appeals or of appealable not be courts brief would accepted as court brief so, have the federal given right. as of That 7(A).1 the brief called for § described, have we are reluc- situation we any oppor- deprive appellants tant to response to our show cause In his mer- tunity adjudication obtain acknowledges that he made appeal. accepts He its of their apologizes for it. mistake and course, processing, supposes, hindsight, reincarna- light it is clear ern word one 1. In the Supreme Court Clerk’s office an Ohio Su- that whatever the the federal brief as tion of may only prudent course would have preme entailed Court brief not have within the time have been to file a prescribed by new great burden. With the miracle of mod- and Rule 15.8 Appellate Procedure hereby DIS- to show The order of the Sixth Operating Procedures Internal the case will set The clerk CHARGED. 12, 1991). (June Circuit the merits. argument on dissenting. MILBURN, Judge, majority disagree with respectfully discharge our decision panel in its
of this appeal should why this to show not be I would
plaintiffs’ failure *4 SYSTEMS, INTERIOR CONSTRUCTION by the accurately stated The facts INC., Plaintiff-Appellee, show discharging majority in the circum- except that a material is omitted. stance RESTAURANTS, MARRIOTT FAMILY ques- the certified of Ohio Court INC., Defendant-Appellant. neces- to file the failure tion for petitioned 91-3330, 91-3373. brief, for sary counsel Nos. its dismissal reconsider urged before prosecute failure Sixth Circuit. us. makes to he now excuses those same rejected those Court of Ohio Argued March excuses, we. and so should 29, Jan. 1993. Decided Rehearing Banc En Rehearing and Practice, unequivocally 2, April 1993. Denied that briefs states filing days of the twenty reading this Counsel admits
tion order.
rule; rather than his secre- commands, he instructed
the rule the clerk of
tary telephone clarification for some of Ohio by his informed
rules. When clerk’s person in the
that an unidentified no brief was her that had advised
office action. further counsel rule of Ohio’s ignore
To call to secretary’s telephone virtue is, me, only irresponsible but clerk part plain- neglect on the
unexcusable counsel.
As a result
Ohio’s dismissal has been this court prosecution, the answer to obtain in its efforts
thwarted thought law which question
to a plain- determinative have been
would Accordingly,
tiffs’ claims. Proce- 3(a) Appellate plain-
dure, this connec-
tiffs’ failure 31(c) the Rules see also