847 F.2d 765 (11th Cir. 1988), 87-8501, Goddard v. Urrea

Docket Nº:87-8501.
Citation:847 F.2d 765
Party Name:Dennis GODDARD and Bonnie Goddard, Plaintiffs-Appellees, v. Pete URREA, Gene Ford, Defendants-Appellants.
Case Date:June 20, 1988
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 765

847 F.2d 765 (11th Cir. 1988)

Dennis GODDARD and Bonnie Goddard, Plaintiffs-Appellees,

v.

Pete URREA, Gene Ford, Defendants-Appellants.

No. 87-8501.

United States Court of Appeals, Eleventh Circuit

June 20, 1988

Page 766

G. Thomas Davis, Lawson & Davis, Lela L. Smith, Atlanta, Ga., for urrea.

O. Hale Almand, Jr., Sell & Melton, Russell M. Boston, Macon, Ga., for Ford.

Scott McLarty, Athens, Ga., for plaintiffs-appellees.

Appeals from the United States District Court for the Northern District of Georgia.

Before JOHNSON and HATCHETT, Circuit Judges, and ESCHBACH [*], Senior Circuit Judge.

HATCHETT, Circuit Judge:

In this unusual case of an appeal from denial of a motion for summary judgment based on qualified immunity, we dismiss the appeal for lack of jurisdiction because genuine issues of material fact exist.

FACTS

On October 22, 1984, the appellants, Pete Urrea and Gene Ford, agents of the Bureau of Alcohol, Tobacco and Firearms, Treasury Department, served a subpoena on Dennis and Bonnie Goddard, husband and wife, the appellees. On the same date, Agent Ford assisted Urrea in serving a total of four subpoenas in the Atlanta area. The subpoenas were issued in connection with a nationwide grand jury investigation being conducted in California concerning the manufacturing of firearms and accessories. The subpoena served on the Goddards was issued to their business, Guerin Enterprises.

It is undisputed that the agents served a subpoena upon the Goddards with a letter attached which explained options for compliance with the subpoena. The facts concerning the agents' actions after serving the subpoena are in dispute.

The agents' rendition of the facts are as follows: Upon arrival at the Goddard residence, Urrea, accompanied by Ford, served the subpoena on Bonnie Goddard, the wife. Agent Urrea told Bonnie Goddard that the document was a subpoena and explained to her compliance options, which were to deliver the requested records to the agents in Atlanta immediately, or to produce the records personally in Fresno, California, where the grand jury was in session. Bonnie Goddard then called her husband, Dennis, to advise him of the incident, but was unable to reach him. Agent Urrea then asked Bonnie Goddard the location of Guerin Enterprises, and she showed the agents its location in the basement of the house. The agents remained in the basement while Bonnie Goddard returned to the kitchen. Subsequently, Dennis Goddard returned Bonnie's call, and she advised him that the agents were present and had a search warrant. Agent Ford immediately corrected Bonnie by telling her the document was not a search warrant. Agent Urrea then spoke with Dennis Goddard and told Dennis that Bonnie had been served with a subpoena and explained to Dennis Goddard the compliance options. After the conversation with Dennis, the agents asked to see business receipts. In response to this request, Bonnie Goddard gave the agents a box containing shipment receipts from Guerin Enterprises. Again, Bonnie Goddard gave the agents permission to enter the basement. This time, Urrea found additional business records and metal parts used to make firearm silencers. The agents then asked Bonnie to telephone Dennis in order to arrange a meeting. At the meeting, Dennis Goddard agreed that Urrea could take the documents to California.

The Goddards' rendition of the facts are as follows: The Goddards contend that Agent Urrea failed to mention that the document was a subpoena and did not explain any of the compliance options. Bonnie Goddard says that Urrea told her the document was a search warrant. The agents then asked the location of Guerin Enterprises, and Bonnie Goddard escorted

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them to the basement where the business records were located. After she unsuccessfully attempted to contact Dennis, he returned her telephone call, and she advised him that the agents had served a search warrant. Although Agent Ford told her that the document was not a search warrant, he did not tell her that it was a subpoena. Urrea then spoke with Dennis on the telephone and mentioned the federal grand jury investigation and the "gag order," but never described the document as a subpoena. Urrea then informed Dennis that he had in his possession the requested documents. Following the telephone conversation, the agents asked for additional business records and without Bonnie's permission, returned to the basement. At that point, Urrea found additional business records and seized two "display suppressors," used in manufacturing firearm accessories. Subsequently, Urrea arranged a meeting with Dennis to discuss what had been found. Dennis denies giving Urrea permission to transport the business documents to California.

PROCEDURAL HISTORY

On December 11, 1984, the Goddards filed a 42 U.S.C. Sec. 1983 action in the Superior Court of Cobb County for intentional infliction of emotional distress, trespass, and the unlawful search and seizure of their property. Subsequently, Ford and Urrea removed the case to federal court, pursuant to 28 U.S.C. Sec. 1442(a)(1). On January 30, 1985, Ford and Urrea filed a motion to dismiss, or in the alternative for summary judgment. In support of the motion, Ford and Urrea asserted entitlement to immunity for common law torts and qualified immunity for constitutional tort liability. The Goddards sought leave of the court to amend their complaint, deleting the section 1983 claim and adding a Bivens action. 1 On June 17, 1985, the district court informed the parties that the...

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