480 F.2d 805 (9th Cir. 1973), 71-2263, Simons v. United States

Docket Nº71-2263.
Citation480 F.2d 805
Party NameYale SIMONS, Plaintiff, v. UNITED STATES of America, Defendant.
Case DateJuly 19, 1973
CourtUnited States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 805

480 F.2d 805 (9th Cir. 1973)

Yale SIMONS, Plaintiff,

v.

UNITED STATES of America, Defendant.

No. 71-2263.

United States Court of Appeals, Ninth Circuit.

July 19, 1973

A. Alexander Katz, Phoenix, Ariz. (argued), for plaintiff.

Michael B. Scott (argued), William C. Smitherman, U. S. Atty., N. Warner Lee, Asst. U. S. Atty., Phoenix, Ariz., for defendant.

Sheldon Mitchell, American Civil Liberties Union, Phoenix, Ariz., for amicus curiae.

OPINION

Before CARTER and HUFSTEDLER, Circuit Judges, and PREGERSON, [*] District Judge.

JAMES M. CARTER, Circuit Judge (dissenting):

The majority has made the following order:

"The cause is remanded to the district court for the limited purpose of its answering the following question:

"In dismissing the 'petition' for lack of jurisdiction, did the court deem the 'petition' theretofore amended to state a claim under the Tucker Act (28 U.S.C. § 1346(a)(2)), as requested by petitioner-plaintiff in his memorandum filed March 17, 1971?"

The order is an exercise in futility. The majority is apparently intrigued by the prospect of a constitutional attack on the present statutes governing forfeiture of automobiles.

The appellant filed in the United States District Court a "petition" for a remission of forfeiture of an automobile. The United States was named as respondent. Appellant was not a party to the security agreement on the car but was an accommodation endorser of a promissory note. Later, after paying off the note, he claimed to be subrogated to the title to the car.

The district court, on the Government's motion, dismissed the action for lack of jurisdiction.

The petitioner in a reply memorandum in the district court had requested the pleading be amended to show reliance on the Tucker Act, 28 U.S.C. § 1346(a)(2). No motion, as such, was made to amend

Page 806

the "petition". He urges here jurisdiction under that Act to support his claim.

The district court correctly dismissed for lack of jurisdiction. Unlike most forfeiture cases, the Government is not the plaintiff.

We need not determine now, or when the case comes back to us, whether the court relied upon the Tucker Act, 28 U.S.C. § 1346, for dismissal of the action. Under the law of this Circuit, even where the Government is the plaintiff in the action, obviating any problem of the right to sue the...

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  • 115 F.Supp.2d 1108 (D.Minn. 2000), 00-308, Northland Ins. Companies v. Blaylock
    • United States
    • Federal Cases United States District Courts 8th Circuit District of Minnesota
    • September 25, 2000
    ...& Arthur R. Miller, Federal Practice and Procedure, § 1346 (3d ed.1992) (citing Jones v. Bales, 58 F.R.D. 453 (D.Ga.1972), aff'd, 480 F.2d 805 (5th Cir.)(holding plaintiff not entitled to default judgment when defendant Page 1116 not file an answer but instead filed Rule 12 motion withi......
  • 567 F.Supp. 146 (M.D.Fla. 1983), 83-351-Civ-J-14, Procup v. Strickland
    • United States
    • Federal Cases United States District Courts 11th Circuit Middle District of Florida
    • June 17, 1983
    ...a prisoner plaintiff need not confront that dilemma. Furthermore, as stated in Jones v. Bales, 58 F.R.D. 453, 463 (N.D.Ga.1972), aff'd, 480 F.2d 805 (5th Cir.1973) (per Persons proceeding in forma pauperis are immune from imposition of costs if they are unsuccessful; and because of their po......
  • 686 F.Supp. 385 (N.D.N.Y. 1988), 86-CV-1142, Sears, Roebuck and Co. v. Charles W. Sears Real Estate, Inc.
    • United States
    • Federal Cases United States District Courts 2nd Circuit Northern District of New York
    • June 23, 1988
    ...litigants who are limited by the realities of time and expense." Jones v. Bales, 58 F.R.D. 453, 463 (N.D. Ga.1972), aff'd, 480 F.2d 805 (5th Cir.1973). The court cannot relieve defendant of the difficult choices he must make regarding the manner he decides to defend Page 389 this lawsu......
  • 948 F.2d 1004 (6th Cir. 1991), 90-1012, Weaver v. Toombs
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Sixth Circuit
    • November 6, 1991
    ...distorted." Id. (emphasis added) (footnote omitted). See also Jones v. Bales, 58 F.R.D. 453, 463 (N.D.Ga.1972), aff'd per curiam, 480 F.2d 805 (5th Cir.1973). The purpose expressed for the holding in Flint was to "assure that litigants will be required to assess the relative merit......
  • Request a trial to view additional results
280 cases
  • 115 F.Supp.2d 1108 (D.Minn. 2000), 00-308, Northland Ins. Companies v. Blaylock
    • United States
    • Federal Cases United States District Courts 8th Circuit District of Minnesota
    • September 25, 2000
    ...& Arthur R. Miller, Federal Practice and Procedure, § 1346 (3d ed.1992) (citing Jones v. Bales, 58 F.R.D. 453 (D.Ga.1972), aff'd, 480 F.2d 805 (5th Cir.)(holding plaintiff not entitled to default judgment when defendant Page 1116 not file an answer but instead filed Rule 12 motion withi......
  • 567 F.Supp. 146 (M.D.Fla. 1983), 83-351-Civ-J-14, Procup v. Strickland
    • United States
    • Federal Cases United States District Courts 11th Circuit Middle District of Florida
    • June 17, 1983
    ...a prisoner plaintiff need not confront that dilemma. Furthermore, as stated in Jones v. Bales, 58 F.R.D. 453, 463 (N.D.Ga.1972), aff'd, 480 F.2d 805 (5th Cir.1973) (per Persons proceeding in forma pauperis are immune from imposition of costs if they are unsuccessful; and because of their po......
  • 686 F.Supp. 385 (N.D.N.Y. 1988), 86-CV-1142, Sears, Roebuck and Co. v. Charles W. Sears Real Estate, Inc.
    • United States
    • Federal Cases United States District Courts 2nd Circuit Northern District of New York
    • June 23, 1988
    ...litigants who are limited by the realities of time and expense." Jones v. Bales, 58 F.R.D. 453, 463 (N.D. Ga.1972), aff'd, 480 F.2d 805 (5th Cir.1973). The court cannot relieve defendant of the difficult choices he must make regarding the manner he decides to defend Page 389 this lawsu......
  • 948 F.2d 1004 (6th Cir. 1991), 90-1012, Weaver v. Toombs
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Sixth Circuit
    • November 6, 1991
    ...distorted." Id. (emphasis added) (footnote omitted). See also Jones v. Bales, 58 F.R.D. 453, 463 (N.D.Ga.1972), aff'd per curiam, 480 F.2d 805 (5th Cir.1973). The purpose expressed for the holding in Flint was to "assure that litigants will be required to assess the relative merit......
  • Request a trial to view additional results