Erlich v. Glasner
| Decision Date | 23 March 1967 |
| Docket Number | No. 20982.,20982. |
| Parties | David ERLICH, Appellant, v. Juda GLASNER, Chaim I. Etner, Bezlial Orlanski, Neptali Friedman, Osher Zilberstein, Juda Glasner, Osher Zilberstein and Chaim I. Etner doing business as the United Orthodox Rabbinate of Greater Los Angeles, United Orthodox Rabbinate of Greater Los Angeles, A. M. Bauman and Jacob Adler, Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Joseph W. Fairfield, Ethelyn F. Black, Beverly Hills, Cal., for appellant.
Wayne Veatch, Veatch, Thomas, Carlson & Dorsey, Thomas C. Lynch, Atty. Gen., Herschel T. Elkins, A. Wallace Tashima, Deputy Attys. Gen., Henry F. Walker, Los Angeles, Cal., Richard Perkins, Beverly Hills, Cal., Phill Silver, Hollywod, Cal., for appellees.
Before BARNES and JERTBERG, Circuit Judges, and MUECKE, District Judge.
This is the second appearance in this court of appellant's effort to state a cause of action against the appellees under the Civil Rights Act, 42 U.S.C. § 1983.
The original complaint was dismissed by the District Court as to all defendants for "good legal cause" on the ground that the complaint failed to state a claim upon which relief may be granted. On appeal we vacated the order of dismissal and remanded the cause for further proceedings. Erlich v. Glasner, 352 F.2d 119 (9th Cir. 1965).
After remand appellant filed an amended complaint which includes all of the allegations summarized in our first opinion, to which the interested reader is referred, and in addition the following allegations:
(a) That the acts of defendant, Glasner, set forth in paragraph VII of the amended complaint see the third full paragraph at page 121 of our first opinion, were done by said defendant "acting in his capacity as kosher food law inspector of the State of California, but not within the course of his duties as kosher food law representative";
(b) That the acts and conduct of the defendant, Glasner, and of the other defendants, alleged in paragraph VIII of the amended complaint see the fourth full paragraph at page 121 of our first opinion, and the alleged overt acts immediately following on the same page, were done by Glasner "while acting in his official capacity as kosher food law representative of the State of California, but not within his duties as kosher food law representative, and all of the defendants while acting under color of law,"; and
(c) That the acts of the defendants entitle plaintiff to punitive damages.
Following the service and filing of the amended complaint, the appellee, Glasner, moved to dismiss the amended complaint and the action on the ground that the amended complaint failed to state a claim against the defendants on which relief could be granted.
A similar motion was filed by the appellee, Etner. A similar motion was made on behalf of the appellees, Orlanski, Friedman, Zilberstein, Bauman, and United Orthodox Rabbinate of Greater Los Angeles. At the same time there was filed on behalf of the last named appellees, affidavit of appellee Zilberstein, "IN SUPPORT OF MOTION TO DISMISS."
Following submission of the motions, the District Court filed a written judgment of dismissal of the amended complaint which states:
"* * *, and the Court having heard and considered the arguments of all counsel, both in support and in opposition to said Motions and having considered all of the written documents filed herein both in support of and in opposition to said Motions, and for good cause shown finds that the Amended Complaint should be dismissed as to all defendants without leave to amend upon the following grounds:" Emphasis added
The grounds may be summarized as follows:
1. That the claimed damages, if sustained, were not suffered by the plaintiff;
2. That the defendant, Glasner, is immune from liability under the laws of the State of California; and
3. That the allegations of the amended complaint of unlawful combination and conspiracy on the part of the defendants are conclusions, unsupported by sufficient allegations of fact.
The record before us consists of the amended complaint, the notices and motions to dismiss of the various appellees, memoranda of points and authorities filed by the various appellees in support of the various motions of appellees to dismiss, the minute order of the District Judge in granting the motions to dismiss, the written judgment of dismissal of the amended complaint, and the affidavit of appellee Zilberstein "IN SUPPORT OF MOTION TO DISMISS." The only material matter in the record outside of the pleadings is the...
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