Erlich v. Glasner, No. 20982.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBARNES and JERTBERG, Circuit , and MUECKE
Citation374 F.2d 681
PartiesDavid ERLICH, Appellant, v. Juda GLASNER, Chaim I. Etner, Bezlial Orlanski, Neptali Friedman, Osher Zilberstein, Juda Glasner, Osher Zilberstein and Chaim I. Etner doing business as the United Orthodox Rabbinate of Greater Los Angeles, United Orthodox Rabbinate of Greater Los Angeles, A. M. Bauman and Jacob Adler, Appellees.
Docket NumberNo. 20982.
Decision Date23 March 1967

374 F.2d 681 (1967)

David ERLICH, Appellant,
v.
Juda GLASNER, Chaim I. Etner, Bezlial Orlanski, Neptali Friedman, Osher Zilberstein, Juda Glasner, Osher Zilberstein and Chaim I. Etner doing business as the United Orthodox Rabbinate of Greater Los Angeles, United Orthodox Rabbinate of Greater Los Angeles, A. M. Bauman and Jacob Adler, Appellees.

No. 20982.

United States Court of Appeals Ninth Circuit.

March 23, 1967.


Joseph W. Fairfield, Ethelyn F. Black, Beverly Hills, Cal., for appellant.

Wayne Veatch, Veatch, Thomas, Carlson & Dorsey, Thomas C. Lynch, Atty. Gen., Herschel T. Elkins, A. Wallace Tashima, Deputy Attys. Gen., Henry F. Walker, Los Angeles, Cal., Richard Perkins, Beverly Hills, Cal., Phill Silver, Hollywod, Cal., for appellees.

Before BARNES and JERTBERG, Circuit Judges, and MUECKE, District Judge.

JERTBERG, Circuit Judge:

This is the second appearance in this court of appellant's effort to state a

374 F.2d 682
cause of action against the appellees under the Civil Rights Act, 42 U.S.C. § 1983

The original complaint was dismissed by the District Court as to all defendants for "good legal cause" on the ground that the complaint failed to state a claim upon which relief may be granted. On appeal we vacated the order of dismissal and remanded the cause for further proceedings. Erlich v. Glasner, 352 F.2d 119 (9th Cir. 1965).

After remand appellant filed an amended complaint which includes all of the allegations summarized in our first opinion, to which the interested reader is referred, and in addition the following allegations:

(a) That the acts of defendant, Glasner, set forth in paragraph VII of the amended complaint see the third full paragraph at page 121 of our first opinion, were done by said defendant "acting in his capacity as kosher food law inspector of the State of California, but not within the course of his duties as kosher food law representative";

(b) That the acts and conduct of the defendant, Glasner, and of the other defendants, alleged in paragraph VIII of the amended complaint see the fourth full paragraph at page 121 of our first opinion, and the alleged overt acts immediately following on the same page, were done by Glasner "while acting in his official capacity as kosher food law representative of the State of California, but not within his duties as kosher food law representative, and all of the defendants while acting under color of law,"; and

(c) That the acts of the defendants entitle plaintiff to punitive...

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14 practice notes
  • Herskowitz v. Apple Inc., Case Nos. 12–CV–02131–LHK, 12–CV–03124–LHK.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • April 15, 2013
    ...side appears to be requesting that this Rule 12(b)(6) motion be treated as a motion for summary judgment. But see Erlich v. Glasner, 374 F.2d 681, 683 (9th Cir.1967) (holding that evidence submitted by a moving party beyond the pleadings, which is not excluded by a district court, mandates ......
  • Timberlane Lumber Co. v. Bank of America, N.T. and S.A., Nos. 74-2142
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 27, 1976
    ...(Rule 12(b)(6)) is made and "matters Page 602 outside the pleading are presented to and not excluded by the court." Erlich v. Glasner, 374 F.2d 681 (9th Cir. 1967). A motion to dismiss based on the act of state doctrine raises such a Rule 12(b)(6) objection, not a jurisdictional defect. Occ......
  • Turner v. OFFICERS, DIR. & EMP. OF MID VALLEY BANK, No. C 87-706-JLQ.
    • United States
    • United States District Courts. 9th Circuit. Eastern District of Washington
    • August 24, 1988
    ...in response to the motion, the motion must be disposed of under Fed.R. Civ.P. 56 as a motion for summary judgment. Erlich v. Glasner, 374 F.2d 681, 683 (9th Cir.1967). Such affidavits having been submitted and considered by this court, this matter will be disposed of by summary The purpose ......
  • O'Brien v. DiGrazia, No. 76-1292
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • November 8, 1976
    ...dismiss for failure to state a claim. 2 See Costen v. Pauline's Sportswear, Inc., 391 F.2d 81, 85 n. 5 (9th Cir. 1968); Erlich v. Glasner, 374 F.2d 681 (9th Cir. 1967). But the court's decision should not be set aside if its dismissal of the case can be justified without reference to the Co......
  • Request a trial to view additional results
15 cases
  • Herskowitz v. Apple Inc., Case Nos. 12–CV–02131–LHK, 12–CV–03124–LHK.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • April 15, 2013
    ...side appears to be requesting that this Rule 12(b)(6) motion be treated as a motion for summary judgment. But see Erlich v. Glasner, 374 F.2d 681, 683 (9th Cir.1967) (holding that evidence submitted by a moving party beyond the pleadings, which is not excluded by a district court, mandates ......
  • Timberlane Lumber Co. v. Bank of America, N.T. and S.A., Nos. 74-2142
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 27, 1976
    ...(Rule 12(b)(6)) is made and "matters Page 602 outside the pleading are presented to and not excluded by the court." Erlich v. Glasner, 374 F.2d 681 (9th Cir. 1967). A motion to dismiss based on the act of state doctrine raises such a Rule 12(b)(6) objection, not a jurisdictional defect. Occ......
  • Timberlane Lumber Company v Bank of America
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 3, 1977
    ...a claim (Rule 12(b)(6)) is made and matters outside the pleading are presented to and not excluded by the court.Erlich v. GlasnerUNK, 374 F.2d 681 (9th Cir. 1967). A motion to dismiss based on the act of state doctrine raises such a Rule 12(b)(6) objection, not a jurisdictional defect Occid......
  • Turner v. OFFICERS, DIR. & EMP. OF MID VALLEY BANK, No. C 87-706-JLQ.
    • United States
    • United States District Courts. 9th Circuit. Eastern District of Washington
    • August 24, 1988
    ...in response to the motion, the motion must be disposed of under Fed.R. Civ.P. 56 as a motion for summary judgment. Erlich v. Glasner, 374 F.2d 681, 683 (9th Cir.1967). Such affidavits having been submitted and considered by this court, this matter will be disposed of by summary The purpose ......
  • Request a trial to view additional results

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