Dioguardi v. Durning
| Decision Date | 03 January 1944 |
| Docket Number | No. 157.,157. |
| Citation | 139 F.2d 774 |
| Parties | DIOGUARDI v. DURNING, Collector of Customs, Port of New York. |
| Court | U.S. Court of Appeals — Second Circuit |
John Dioguardi, of Brooklyn, N. Y., pro se.
Marvin M. Notkins, Asst. U. S. Atty., of New York City (James B. M. McNally, U. S. Atty., of New York City, on the brief), for defendant-appellee.
Before SWAN, AUGUSTUS N. HAND, and CLARK, Circuit Judges
In his complaint, obviously home drawn, plaintiff attempts to assert a series of grievances against the Collector of Customs at the Port of New York growing out of his endeavors to import merchandise from Italy "of great value," consisting of bottles of "tonics." We may pass certain of his claims as either inadequate or inadequately stated and consider only these two: (1) that on the auction day, October 9, 1940, when defendant sold the merchandise at "public custom," "he sold my merchandise to another bidder with my price of $110, and not of his price of $120," and (2) "that three weeks before the sale, two cases, of 19 bottles each case, disappeared." Plaintiff does not make wholly clear how these goods came into the collector's hands, since he alleges compliance with the revenue laws; but he does say he made a claim for "refund of merchandise which was two-thirds paid in Milano, Italy," and that the collector denied the claim. These and other circumstances alleged indicate (what, indeed, plaintiff's brief asserts) that his original dispute was with his consignor as to whether anything more was due upon the merchandise, and that the collector, having held it for a year (presumably as unclaimed merchandise under 19 U.S.C.A. § 1491), then sold it, or such part of it as was left, at public auction. For his asserted injuries plaintiff claimed $5,000 damages, together with interest and costs, against the defendant individually and as collector. This complaint was dismissed by the District Court, with leave, however, to plaintiff to amend, on motion of the United States Attorney, appearing for the defendant, on the ground that it "fails to state facts sufficient to constitute a cause of action."
Thereupon plaintiff filed an amended complaint, wherein, with an obviously heightened conviction that he was being unjustly treated, he vigorously reiterates his claims, including those quoted above and now stated as that his "medicinal extracts" were given to the Springdale Distilling Company "with my betting bidding? price of $110: and not their price of $120," and An earlier paragraph suggests that defendant had explained the loss of the two cases by "saying that they had leaked, which could never be true in the mauner they were bottled." On defendant's motion for dismissal on the same ground as before, the court made a final judgment dismissing the complaint, and plaintiff now comes to us with increased volubility, if not clarity.
It would seem, however, that he has stated enough to withstand a mere formal motion, directed only to the face of the complaint, and that here is another instance of judicial haste which in the long run makes waste. Under the new rules of civil procedure, there is no pleading requirement of stating "facts sufficient to constitute a cause of action," but only that there be "a short and plain statement of the claim showing that the pleader is entitled to relief," Federal Rules of Civil Procedure, rule 8(a), 28 U.S.C.A. following section 723c; and the motion for dismissal under Rule 12(b) is for failure to state "a claim upon which relief can be granted." The District Court does not state why it concluded that the complaints showed no claim upon which relief could be granted; and the United States Attorney's...
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...of an "afterthought" which did not even occur to the party but which was conceived, on appeal, by this court itself. See Dioguardi v. Durning, 2 Cir., 139 F.2d 774, 775; and especially Truth Seeker Co. v. Durning, 2 Cir., 147 F.2d 54, 56, where we stressed the fact that plaintiff prayed for......
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