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United States Supreme Court


No. 76-126

Argued: Decided: November 1, 1976

On petition for writ of certiorari to the District Court of Appeal of Florida for the Third District.

Summary Disposition of the Court.

The petition for certiorari is granted, the judgment of the District Court of Appeal of Florida is vacated, and the case is remanded for a determination of whether petitioner has waived the protection of the venue provision of the National Bank Act, 12 U.S.C. 94. See National Bank of North America v. Associates of Obstetrics and Female Surgery, Inc., 425 U.S. 460 (1976).

Mr. Justice STEVENS, with whom Mr. Justice BRENNAN joins, dissenting.

The Court's action in this case is not supported by the precedent on which it relies. In National Bank of North America, the Utah Supreme Court erroneously held that 94 was "permissive and not exclusive." We remanded because that court had not reached the waiver issue in its previous opinion. In the present case, however, the state courts have given no explanation for their rejection of petitioner's venue claim. A remand in this case can only rest on the unwarranted assumption that the state courts relied on some ground other than waiver. The pres- [429 U.S. 911 , 912]   umption, however, should be that the state courts recognized and relied on the strongest argument in favor of their holding, in this case, the waiver argument.*

I am therefore unable to concur in the Court's summary action in this case. Since this case is unworthy of plenary review, I would deny certiorari.


[ Footnote * ] The waiver argument is based on the conduct of petitioner's alleged corporate alter ego. Apparently the Court finds some possible merit in this argument; otherwise, it would simply reject the argument summarily as it did the "local action" argument in National Bank of America, supra, at n.*.

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