Baucher v. Eastern Indiana Production Credit Ass'n

• Decision Date: 13 July 1990
• Docket Number: No. 89-2518,89-2518
• Citation: 906 F.2d 332
• Parties: Joseph A. BAUCHER and Rebecca M. Baucher, Plaintiffs-Appellants, v. EASTERN INDIANA PRODUCTION CREDIT ASSOCIATION and William Buchanan, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 332

906 F.2d 332

17 Fed.R.Serv.3d 520

Joseph A. BAUCHER and Rebecca M. Baucher, Plaintiffs-Appellants, v. EASTERN INDIANA PRODUCTION CREDIT ASSOCIATION and William

Buchanan, Defendants-Appellees.

No. 89-2518.

United States Court of Appeals, Seventh Circuit.

Argued May 16, 1990.

Decided July 13, 1990.

Charles W. Ewing, Carla Struble, Columbus, Ohio, for plaintiffs-appellants.

Thomas G. Stayton, Baker & Daniels, Indianapolis, Ind., Mark W. Baeverstad, Hunt, Suedhoff, Borror & Eilbacher, Fort Wayne, Ind., for defendants-appellees.

Before WOOD, Jr., and FLAUM, Circuit Judges, and CRABB, District Judge. ^*

HARLINGTON WOOD, Jr., Circuit Judge.

Plaintiffs Joseph A. Baucher and Rebecca M. Baucher are Ohio citizens who brought this suit to remedy what they claim was a wrongful deprivation of dairy cattle. Joseph and Rebecca's brother, Timothy Baucher, had borrowed money from defendant Farm Credit Services of Mid-America ("Farm Credit") ¹ and had given Farm Credit a security interest in livestock and equipment on his Indiana farm. Timothy Baucher fell behind in his payments and proceedings were brought to foreclose the security interests held by Farm Credit.

In preparation for the foreclosure, Farm Credit employee Stephen Turner went to Timothy Baucher's farm to observe the inventory of Baucher's personal property. At the farm, Rebecca Baucher and her attorney confronted Turner and the county sheriff, contesting the ownership of the cattle on Timothy Baucher's farm. Specifically, Rebecca Baucher claimed that the cattle belonged to herself and to her brother, Joseph. In response to an inquiry from the sheriff, Turner observed that the cattle present on the farm were of a like number and kind as the cattle in which Farm Credit believed it had a security interest.

After it became clear that the ownership of the dairy cattle might be in dispute, Rebecca and Joseph Baucher's attorney stated she would request a stay of the foreclosure proceedings and a hearing before a county judge. Turner asked the sheriff not to seize the cattle until the parties settled the ownership issue, but the sheriff responded that he had to follow the orders of the county judge. After a phone conversation with the judge, the sheriff told Turner that he had instructions to seize the cattle the following morning.

Turner returned to Farm Credit's offices and reported to his supervisor, defendant William Buchanan. Turner informed Buchanan of the events that had occurred at Timothy Baucher's farm, especially the dispute over the dairy cattle's ownership. With hopes of stopping the seizure, Buchanan then attempted to reach the county judge, but the judge's secretary would not put the call through because Farm Credit was a party to the foreclosure action.

The following morning, the sheriff attempted to proceed with the seizure but retreated after an encounter with several members of the Baucher family and their shotguns. Within a few days, the sheriff returned to Timothy Baucher's farm with reinforcements and successfully completed the seizure of the cattle. Because of the allegedly excessive force used at the seizure, Joseph and Rebecca Baucher also named the sheriff and his employees as defendants in this suit. The sheriff and his employees reached a separate settlement with the Bauchers and are not a party to this appeal. Because the seizure ruined the cattle for use as dairy cattle, ² Rebecca and Timothy Baucher also sued Farm Credit and supervisor Buchanan for deprivation of a property interest without due process of law under 42 U.S.C. Sec. 1983 and for conversion under Indiana law.

The parties consented to have the case heard before a magistrate. The magistrate then granted the defendants' summary judgment motion for at least two reasons. First, the plaintiffs had failed to make a sufficient showing that Farm Credit and Buchanan had caused the alleged constitutional deprivation. Second, the plaintiffs had not shown that Farm Credit and Buchanan had acted under the color of state law. The magistrate dismissed the plaintiffs' state tort law claim for conversion without reaching its merits. Joseph Baucher has now perfected an appeal to this court, and we have jurisdiction over his appeal pursuant to 28 U.S.C. Secs. 636(c)(3), 1291.

As to Rebecca Baucher, we have no jurisdiction over her appeal. The notice of appeal filed in this case stated, "Notice is hereby given that Joseph A. Baucher, et. al. [sic ], ... appeal to the United States Court of Appeals for the Seventh Circuit...." In Torres v. Oakland Scavenger Co., 487 U.S. 312, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988), the Supreme Court specifically condemned this form for a notice of appeal, holding that use of the phrase "et al." failed to meet the specificity required of a notice of appeal by FED.R.APP.P. 3(c). In making this holding, the Court noted that the requirements of rule 3(c) are jurisdictional in nature, see id. at 314-15, 108 S.Ct. at 2407-08, and cannot be relaxed even where it is clear that the putative appellant intended to appeal, see id. at 317-18, 108 S.Ct. at 2409; see also FTC v. Amy Travel Serv. Inc., 875 F.2d 564, 577 (7th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 366, 107 L.Ed.2d 352 (1989). Thus, even though this court and the appellees might recognize that Ms. Baucher intended to be a party to this appeal, we lack jurisdiction nonetheless. Because the notice of appeal did not name Rebecca Baucher as an appellant, she must be dismissed from the case--a matter of little practical consequence given our discussion of the merits of her brother's case.

This leaves Joseph Baucher as the only remaining party to the appeal, but unfortunately for him, his case has little merit. Baucher has sued for deprivation of his property without due process of law, a claim that requires him to show that the plaintiffs acted under color of state law. To establish Farm Credit's and Buchanan's liability, Baucher refers us to Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). According to Baucher, wilful participation in a joint activity with state actors, see id. at 941, 102 S.Ct. at 2755, means that a private individual has acted under color of state law and, hence, liability should be imposed. Like all tort liability, however, for liability to arise under 42 U.S.C. Sec. 1983, it is not enough that an individual merely act under color of state law, but the individual must also have caused the plaintiff's loss. See Morton v. Becker, 793 F.2d 185, 187 (8th Cir.1986). Baucher has amalgamated the "color of state law" requirement with proof of causation and has failed to meet the defendants' arguments that they did not cause his loss. Because we agree that neither Farm Credit nor its employee, Buchanan, caused any loss to Baucher as a matter of law, we have no need to discuss whether the defendants acted under the color of state law.

The principles of Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), and Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), define our decision. While we view the facts in the light most favorable to the nonmoving party, Celotex makes clear that there is an affirmative burden of production on the nonmoving party to defeat a proper summary judgment motion. See id. at 323-24, 106 S.Ct. at 2552-53. Thus, summary judgment is appropriate where the nonmoving party fails to make a sufficient showing on an...