United States v. Northside Realty Associates

• Decision Date: 04 March 1971
• Docket Number: Civ. A. No. 13932.
• Citation: 324 F. Supp. 287
• Parties: UNITED STATES of America v. NORTHSIDE REALTY ASSOCIATES, Inc., and Ed A. Isakson.
• Court: U.S. District Court — Northern District of Georgia

324 F. Supp. 287

UNITED STATES of America v. NORTHSIDE REALTY ASSOCIATES, Inc., and Ed A. Isakson.

Civ. A. No. 13932.

United States District Court, N. D. Georgia, Atlanta Division.

March 4, 1971.

COPYRIGHT MATERIAL OMITTED

John N. Mitchell, Atty. Gen., Jerris Leonard, Asst. Atty. Gen., Washington, D. C., John W. Stokes, Jr., U. S. Atty., Atlanta, Ga., Frank E. Schwelb, Thomas M. Keeling, Attys., Dept. of Justice, Washington, D. C., for plaintiff.

Gambrell, Russell, Moye & Killorin, Atlanta, Ga., for defendants.

ORDER

O'KELLEY, District Judge.

This is an action brought by the Attorney General on behalf of the United States pursuant to Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 3601 et seq. Defendant Northside Realty Associates, Inc. is a corporation existing under the laws of Georgia for the purpose of engaging in the real estate business. Defendant Ed Isakson is the Executive Vice-President and Sales Manager of defendant corporation. Plaintiff alleges that defendants follow a policy and practice of racial discrimination against Negroes, on account of their race, with respect to the purchase and sale of homes in the metropolitan Atlanta area.

I. Motion for More Definite Statement

The defendants seek an Order pursuant to Rule 12(e) F.R.Civ.P. to require the Attorney General to provide a more definite statement with respect to Paragraph 2 of the prayer for relief contained in Plaintiff's Complaint. In Paragraph 2, the plaintiff seeks an Order "directing that the defendants take such affirmative steps as may be necessary and appropriate to correct the effects of the past unlawful practices described in the Complaint." The defendants contend that they cannot frame a responsive pleading unless they know the following facts:

(1) The precise nature of the "affirmative steps" which might be required of them;

(2) When and for what reasons those steps might be necessary and proper;

(3) How and why such steps will correct the effects of the alleged discrimination;

(4) What such "effects" are; and

(5) The legal authority on which Paragraph 2 of the prayer for relief contained in the Complaint is based.

Rule 8(a) F.R.Civ.P. provides that federal pleadings shall contain a "short and plain statement of the claim showing that the pleader is entitled to relief." The defendants here have not contested the sufficiency of plaintiff's statement of the claim for relief. Rule 12(e) motions directed toward such claims have uniformly been rejected in similar cases brought by the United States or the Attorney General under Section 813 of Title VIII, 42 U.S.C. § 3613. See, United States v. Bob Lawrence Realty, Inc., et al. (C.A. 70-379, S.D., Fla. Order filed May 5, 1970); United States v. Joseph and Rose Miller, et al. (C.A.No. 70-40 D.Md. Order filed April 29, 1970); United States v. Georgia Power Company, 301 F.Supp. 538, 543-544 (N.D., Ga.1969); United States v. Building and Construction Trades Council, 271 F.Supp. 447 (E.D., Mo. 1966). Any additional information needed by the defendant in such cases may be sought through the discovery provisions of the Federal Rules of Civil Procedure. United States v. Gustin-Bacon Division, 426 F.2d 539 (10th Cir. 1970).

Rule 54(c) F.R.Civ.P. provides:

"(c) Demand for Judgment * * * Except as a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings."

From the statement of this Rule, it seems clear that the relief which is ultimately given will depend upon the facts presented in the case. In the recent case of Equity Capital Company v. Sponder, 414 F.2d 317, 319 ftn. 1 (5th Cir. 1969), the Fifth Circuit stated:

"Except for a default judgment, the prayer of the complaint is irrelevant under F.R.Civ.P. 54(c) as to relief. This depends on the facts on the hearing or trial, not the prayer."

Since the prayer for relief is not determinative of the relief granted, a more definite statement of the request for relief does not seem necessary in order for the defendants to frame a responsive pleading.

Motions for more definite statements are not favored since pleadings in the federal courts are only required to fairly notify the opposing party of the nature of the claim. See Nagler, et al. v. Admiral Corporation, et al., 248 F.2d 319 (2 Cir. 1957); Fairmont Foods Company v. Manganello, 301 F.Supp. 832 (S.D., N.Y., 1969). Since no question has been raised as to the statement of the claim, only the prayer for relief is in issue in the instant case. The relief granted is dependent on the facts on the hearing or trial and not upon the prayer. Therefore, a more definite statement of the prayer for relief is not essential to the defendants' defense of this case.

Defendants' motion for a more definite statement is hereby DENIED.

II. Motion To Dismiss And Motion To Strike Jury Demand

Defendants filed a counterclaim in the suit brought against them under Section 813 of Title VIII, 42 U.S.C. § 3613. Defendants assert no basis existed for the determination that they were engaged in a pattern or practice of discrimination prohibited by that Act. Defendants also claim that this suit has been brought without reasonable cause and in violation of the Act with such disregard of the facts as to constitute bad faith, vexatiously, wantonly and for oppressive reasons. Due to the action of the plaintiff, defendants claim to have been injured and for such injury, defendants seek compensation and money damages in an adequate amount but not less than $100,000 for each defendant. This relief is sought against the Attorney General and his staff of attorneys in their individual as well as their official capacities. Defendants specify that their request for relief under this counterclaim is not to be considered as exclusive of any other relief which they may properly seek.

Defendants demand a jury trial on three (3) grounds: (1) Plaintiff in his prayer for relief asks for money from the defendants in the form of "costs and disbursements"; (2) Plaintiff seeks an Order requiring undefined "affirmative steps" of the defendants which could affect the legal and constitutional rights of the defendants; (3) Defendants' counterclaim involves a request for damages and compensation. Plaintiff has responded by filing a motion to strike defendants' demand for jury trial. The plaintiff has also filed a motion to dismiss defendants' counterclaim.

The first question addressed by the parties with regard to this motion to dismiss defendants' counterclaim is whether the counterclaim is compulsory or permissive. The plaintiff asserts that the counterclaim is permissive as defined in 13(b) of the Federal Rules of Civil Procedure. The basis given for plaintiff's argument is that defendants' counterclaim for the allegedly unlawful bringing of this suit does not assert a claim "arising out of the transaction or occurrence that is the subject matter of the suit" (Rule 13(a) F.R.Civ.P.) i. e., suit based on practice of resistance to full employment of Title VIII rights. Due to this distinction, plaintiff contends that defendants' counterclaim is not compulsory, and in order to survive the motion for dismissal, must qualify as a permissive counterclaim under 13(b) F.R.Civ.P.

Plaintiff argues that it does not qualify as a permissive counterclaim, because if considered a claim against the United States or the Attorney General in his official capacity, it fails to establish an independent basis for jurisdiction as required by 13(b) F.R.Civ.P. Although this suit was initiated by the Attorney General, the real party in interest is the United States. Such suits may be brought in the name of the sovereign to protect the interest of the sovereign in seeing that its laws are enforced. St. Louis Union Trust Co. v. United States, 82 F.2d 61, 64 (8th Cir., 1936). Therefore, in spite of the fact that defendants' counterclaim is against the Attorney General in his official capacity rather than against the United States, the United States is in reality the object of the counterclaim and the only party against whom a permissive counterclaim may be brought. A permissive counterclaim, as any suit, cannot be brought against the United States without specific statutory authority, 3 Moore's Federal Practice 2d ed. § 13.28. The United States has not consented to suits such as this. United States v. Faneca, 332 F.2d 872, 875 (5th Cir., 1964). If the counterclaim is brought against the Attorney General and his attorneys in their individual capacities, plaintiff contends that the counterclaim is not directed against the "opposing party" i. e, the United States and, therefore, does not qualify as a permissive counterclaim. In addition to the above reasons, plaintiff moves to have the counterclaim dismissed with prejudice, because it fails to state a claim on which relief can be granted. This reasoning is based on the theory expressed in the Fifth Circuit case of Norton v. McShane, 332 F.2d 854, 855 (5th Cir. 1964), that federal officials are immune from suit for alleged malicious acts done by them while in performance of their official duties. For these reasons, the plaintiff moves for dismissal of defendants' counterclaim.

Defendants contend that the counterclaim is compulsory. In determining this, they rely on the "logical relationship" test set out in Lesnik v. Public Industrials Corp., 144 F.2d 968 (2d Cir. 1944) and Rosenthal v. Fowler, 12 F.R.D. 388, 391. They also cite the case of Non-Ferrous Metals, Inc. v. Saramar Aluminum, 25 F.R.D. 102, 105 (N.D. Ohio, 1960) in which the test recognized was based on whether the same evidence will support or refute the opposing claim. Defendants assert that their counterclaim meets both the "logical relationship" and "same evidence" tests, and, in order to avoid a multiplicity of suits, it should be allowed as a compulsory counterclaim....