Doe v. Roe, Civ. A. No. 1584.
Decision Date | 29 December 1959 |
Docket Number | Civ. A. No. 1584. |
Parties | John DOE (James A. Bowdoin et al.), Plaintiff, v. Richard ROE (Buford Malone, Jr. and United States of America), Defendants. |
Court | U.S. District Court — Middle District of Georgia |
W. B. Mitchell, Forsyth, Ga., for plaintiff.
Floyd M. Buford, Asst. U. S. Atty., Macon, Ga., for defendants.
This suit in the fictitious form of ejectment was instituted in the Superior Court of Jasper County, Georgia, the real defendants being Buford Malone, Jr. and United States of America. It was thereafter removed into this court upon petition of both defendants, which petition alleged in paragraphs 2 and 3 thereof as follows:
Thereafter, both defendants filed their motion to dismiss upon the grounds that the complaint fails to state a claim against the defendants upon which relief can be granted; that the court has no jurisdiction over Malone since the proceeding is in substance and effect against the United States and that the United States has not consented to be sued or waived its immunity from suit and "the complaint affirmatively shows that Buford Malone, Jr. is being sued as an agent and employee of the United States and as to him the suit is in substance and effect one against the United States; thus, the United States is an essential and indispensable party to the suit."
Counsel were heard at a pre-trial conference on October 2, 1959 and upon written briefs and upon an adjourned pre-trial conference held this day.
While the complaint does not affirmatively show that Malone is being sued as an agent and employee of the United States, counsel for the plaintiff admitted at the pre-trial conference today that the above-quoted paragraphs 2 and 3 of the removal petition are true and correct. It does now appear, therefore, that Malone does not purport to act in the premises as an individual but solely as an official or employee of the sovereign.
Relying upon the cases of United States v. Lee, 1882, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171; Sawyer v. Osterhaus, D.C.N.D.Cal.1912, 195 F. 655, 212 F. 765; and Land v. Dollar, 1947, 330 U.S. 731, 67 S.Ct. 1009, 91 L.Ed. 1209, plaintiff claims...
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Malone v. Bowdoin
...act in the discharge of his official duty under an order of such House.' 4 The District Court's opinion is reported sub nom. Doe v. Roe, D.C., 186 F.Supp. 407. 5 A petition for rehearing was denied, 5 Cir., 287 F.2d 282. 6 Cunningham v. Macon & Brunswick R. Co., 109 U.S. 446, 452, 3 S.Ct. 2......
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Bowdoin v. Malone
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