Caprio v. Wilson, 74-2011

• Decision Date: 08 April 1975
• Docket Number: No. 74-2011,74-2011
• Parties: Frank CAPRIO, Plaintiff-Appellant, v. Bob WILSON, Defendant-Appellee
• Court: U.S. Court of Appeals — Ninth Circuit

Page 837

513 F.2d 837

Frank CAPRIO, Plaintiff-Appellant, v. Bob WILSON, Defendant-Appellee

No. 74-2011.

United States Court of Appeals, Ninth Circuit.

April 8, 1975.

John Stephens, La Jolla, Cal., for plaintiff-appellant.

James J. Biggins, Jr., of Smith, Biggins, & Bollman, San Diego, Cal., for defendant-appellee.

OPINION

Before CARTER, WRIGHT, and GOODWIN, Circuit Judges.

JAMES M. CARTER, Circuit Judge:

This is an appeal from the judgment of the district court, denying injunctive relief or an award of damages although finding in appellant's favor on the merits. Appeal is also taken from an order made during the course of the action, denying appellant's motion to join an involuntary plaintiff under Fed.R.Civ.P. 19(a). We affirm.

Appellee Wilson is an incumbent Congressman and appellant Caprio was his 1972 Democratic challenger. Shortly before the primary and general elections, Wilson mailed, under his frank, several hundred thousand copies of Bob Wilson Reports, a congressional newsletter. Had the Reports been mailed at then-prevailing first-class rates, the cost to Wilson would have been $36,352.96. Wilson's district had been redistricted for the 1972 election; the Reports were sent to both the new and old district areas.

Appellant brought this action under 39 U.S.C. § 3210 et seq., claiming that Wilson had misused the franking privilege by mailing the Reports. During the course of the proceedings, appellant moved to have the United States Post Office joined as an involuntary plaintiff. The motion was denied.

The district court found that Wilson's actions in using his frank for campaign mailing were illegal, but concluded that: (1) injunctive relief was improper because the new statute, signed into law on December 18, 1973, as P.L. 93-191, 87 Stat. 737, redefined the franking privileges of members of Congress in a manner that reduced the likelihood of future violations under the new law; (2) with respect to damages, "there is no proof offered suggesting that the defendant's abuse caused plaintiff to lose the election. The real damages that have accrued from misuse of the frank are caused to the taxpayer. Awarding a monetary judgment could, therefore only work to give the plaintiff an unfair windfall profit of $36,352.96."

We conclude that the refusal to award damages or injunctive relief was proper for the reasons stated by the district court.

The refusal to join the Post Office as an involuntary plaintiff was also proper. Appellant points to language in Fed.R.Civ.P. 19(a) that if a party "should join as a plaintiff but refuses to do so, he may be made a defendant, or, in a proper case, an involuntary plaintiff." He contends that since the Post Office is precluded from joinder as a defendant due to the doctrine of sovereign immunity and since joinder is desirable the Post Office being the real party in interest and necessary to render complete relief its joinder as plaintiff should have been compelled.

We conclude that appellant's argument, although ingenious, would if adopted require an unwarranted extension of the involuntary plaintiff doctrine established under Rule 19(a) and prior case law.

"The development of the practice of joining a party as an involuntary plaintiff was a response to an historical anomally that culminated in the Supreme Court's decision in Waterman v. Mackenzie, (138 U.S. 252, 11 S.Ct. 334, 34 L.Ed. 923 (1891)) which held that even in equity the exclusive licensee of a patent must bring an infringement action in the name of the patent owner." 7 Wright & Miller, Federal Practice and Procedure § 1606, at p. 50. Where the patent owner is outside the jurisdiction of the court and refuses to prosecute or join his exclusive licensee's infringement action, he may be made an involuntary plaintiff. Independent Wireless Tel. Co. v. Radio Corp. of America, 269 U.S. 459, 46 S.Ct....