268 F.2d 16 (9th Cir. 1959), 16056, Walker v. Bank of America Nat. Trust and Sav. Ass'n

Docket Nº:16056.
Citation:268 F.2d 16
Party Name:Claudia WALKER, Appellant, v. BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION, and Transamerica Corporation, Appellees.
Case Date:May 22, 1959
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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268 F.2d 16 (9th Cir. 1959)

Claudia WALKER, Appellant,

v.

BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION, and Transamerica Corporation, Appellees.

No. 16056.

United States Court of Appeals, Ninth Circuit.

May 22, 1959

Rehearing Denied Aug. 21, 1959.

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Claudia Waller Walker, in pro. per.

Samuel B. Stewart, Kenneth M. Johnson, Robert T. Shinkle, Orrick, Dahlquist, Herrington & Sutcliffe, Christopher M. Jenks, San Francisco, Cal., for appellees.

Before POPE, CHAMBERS, and HAMLEY, Circuit Judges.

HAMLEY, Circuit Judge.

Appearing in propria persona, Claudia Walker brought this action to recover special and general damages in the sum of $1, 056, 996. Named as defendants in the original complaint were Bank of America National Trust and Savings Association (Bank of America) and Transamerica Corporation (Transamerica). Responsive to a motion made by defendants, the district court dismissed the action for lack of jurisdiction.

Plaintiff thereafter made in succession four motions designed to reinstate the lawsuit. 1 The district court entered orders denying in whole or in part the first three of these post-dismissal motions. Plaintiff then appealed from these orders and from the original order of dismissal. In her notice of appeal, plaintiff also anticipated possible adverse action on the fourth post-dismissal motion and sought to include any such future order in her appeal. An order was thereafter entered denying this fourth motion.

We direct our attention first to the appeal from the original order dismissing the action. Bank of America has moved for dismissal of the appeal as to it, arguing that the appeal was not timely.

The order dismissing the action was entered on January 28, 1958. The time for filing a notice of appeal would thus normally expire thirty days later, i.e., on February 27, 1958. Rule 73(a), Federal Rules of Civil Procedure, 28 U.S.C.A.

It is further provided in this rule, among other things, that the running of the time for appeal is terminated by a

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timely motion to alter or amend the judgment, made pursuant to Rule 59(e), Federal Rules of Civil Procedure. In the event such a motion is timely made, the full time for appeal commences to run and is to be computed from the entry of an order granting or denying the motion.

It is provided in Rule 59(e) that a motion to alter or amend the judgment shall be served not later than ten days after entry of the judgment. On February 7, 1958, which was within this ten-day period, appellant served and filed a motion to set aside the order of dismissal and for leave to file an amended complaint. In effect, this motion was to alter or amend the order of dismissal by changing the decretal provision from a dismissal of the action to a dismissal of the complaint, and by adding a provision granting leave to file an amended complaint and to drop a party defendant.

The order denying this motion was entered on April 18, 1958. Under Rule 73(a), therefore, appellant had until May 18, 1958, to take an appeal from the order of dismissal entered on January 28, 1958. Her appeal was taken on May 16, 1958, and would therefore seem to be timely.

Counsel for Bank of America, however, points out that the motion to alter or amend the judgment was made for the purpose of enabling appellant to file an amended complaint in which only Transamerica was named a defendant. Since it was thus proposed to drop Bank of America as a party, the argument is made that the motion could not, as to the bank, extend the time for taking an appeal from the order of dismissal. Counsel for the bank further argues that it was in fact necessary that the action remain dismissed as to the bank if appellant expected to continue the suit only against Transamerica, as contemplated by the proposed amended complaint.

If appellant's motion and the tendering of the amended complaint are to be regarded as acquiescence in the order of dismissal as to Bank of America, the latter's position, as set out above, has merit. It seems to us, however, that appellant, faced with the order of dismissal, was reluctantly seeking to save as much of the lawsuit as possible, without conceding that the order of dismissal was correct as to the bank.

Both the original and the proposed amended complaint were designed to establish jurisdiction on the basis of diversity of citizenship. But appellant also asserted jurisdiction on other grounds, to be hereinafter discussed, which she has not abandoned and here renews. Under these circumstances it is our view that the extension of time accomplished by the serving of the motion to alter or amend the judgment is effective as to Bank of America as well as Transamerica.

The motion to dismiss the appeal as to Bank of America from the order of January 28, 1958, is therefore denied.

Appellant argues that the court erred in entering the order dismissing the action because appellees' motions to dismiss were not timely.

A review of the docket entries convinces us that the motions to dismiss were filed within the time specified in Rule 12(a), Federal Rules of Civil Procedure, 28 U.S.C.A., as enlarged by the court pursuant to Rule 6(d). In any event it is provided in Rule 12(h) that a motion to dismiss for lack of jurisdiction may be made at any time. 2

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Appellant further contends that the allegations of the original complaint, as amended and proposed to be amended prior to dismissal of the action, show jurisdiction and that the district court erred in holding otherwise.

In the complaint it is alleged that in 1939 Miss Walker was an employee of Bank of America, a national banking association, of its affiliate, Bankamerica Agricultural Credit Corporation, and of Transamerica, a Delaware corporation of which Bank of America was a whollyowned subsidiary. It is further alleged that on October 23, 1939, she resigned this employment on account of ill health. 3 It is alleged that her illness, which included a nervous breakdown, resulted from worry and strain occasioned by close contact with a wide variety of assertedly improper and illegal banking practices by her superiors, inadequate salary, and an unreasonably heavy work load. It is also alleged that her resignation was wrongfuly demanded because she had informed the Securities and Exchange Commission of certain assertedly illegal practices being carried on by Bank of America, Transamerica, and subsidiaries of the latter company.

The complaint also contains allegations to the following effect: After her resignation Miss Walker was illegally committed to the Stockton State Hospital. 4 An attorney, Arthur Brouillet, employed by her mother, notified officials of Bank of America of Miss Walker's illness and of the immediate need for funds in the sum of two hundred dollars for medical care. Notwithstanding receipt of this notice of her illness, defendants fraudulently concealed from Miss Walker's next of kin-- her mother-- that Miss Walker was entitled to six thousand dollars in workmen's compensation benefits from the State of California. Miss Walker did not learn until 1948 that the bank had been given timely notice of the illness. It was not until about November 15, 1953, that she received proof that the bank had received such notice. This proof consisted of copies of letters which Brouillet had written to the bank and to appellant's mother in December 1939.

All of the assertedly fraudulent and unlawful acts referred to above, it is alleged, were accomplished by appellees individually and in conspiracy with each other and with certain state and federal officials and agencies. As a result, appellant alleges, she underwent a long period of illness, was unnecessarily and illegally committed to an institution, and suffered physical pain, mental suffering, humiliation, and damage to reputation. General damages in the sum of one million dollars and special damages in the sum of $56, 996 are sought. 5

Before any responsive pleading was served, Miss Walker amended her complaint by adding thereto a new paragraph XV. By this amendment appellant sought to invoke jurisdiction under the Civil Rights Act, particularly 28 U.S.C.A. § 1343, and 42 U.S.C.A. §§ 1983 and 1985(3). Appellant later moved for leave to further amend her complaint by adding twenty-five additional pages thereto, comprising new paragraphs XVI to XXVI, and adding a prayer for declaratory relief. The new paragraphs thus sought to be added deal in the main with the question of jurisdiction, no additional

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substantive claims for relief being asserted 6

The original complaint, as amended by the addition of paragraph XV, and as proposed to be amended by the addition of paragraphs XVI to XXVI, alleges facts designed to show jurisdiction on three grounds. These are: (1) Diversity of citizenship, pursuant to 28 U.S.C.A. § 1332; (2) existence of a federal question, pursuant to 28 U.S.C.A. § 1331; and (3) deprivation of civil rights, pursuant to 28 U.S.C.A. § 1343, and 42 U.S.C.A. §§ 1983 and 1985(3). We will consider, seriatim, these three asserted grounds of jurisdiction.

There can be no diversity of citizenship if the plaintiff is of the same state citizenship as any one of the defendants, since diversity must be complete. Baltimore & Ohio R. Co. v. City of Parkersburg, 268 U.S. 35, 45 S.Ct. 382, 69 L.Ed. 834. In order to show diversity jurisdiction, it was therefore necessary for Miss Walker, a citizen of the State of California, to allege facts establishing that Bank of America and Transamerica were not citizens of the State of California. 7 This was done in the original complaint in the case of Transamerica, it being...

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