Fowler v. Southern Bell Telephone & Telegraph Company

Decision Date19 March 1965
Docket NumberNo. 21340.,21340.
Citation343 F.2d 150
PartiesMrs. Jack D. FOWLER, Appellant, v. SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY et al., Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

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Thomas M. Spence, Larry Cohran, Atlanta, for appellant.

Harry S. Baxter, William H. Major, Newell Edenfield, Atlanta, Ga., for appellees.

Before BROWN and BELL, Circuit Judges, and SPEARS, District Judge.

GRIFFIN B. BELL, Circuit Judge:

Appellant, Mrs. Jack D. Fowler, originally commenced this action in the Superior Court of Fulton County, Georgia, against Carl Strasser, Jim E. West, and the Southern Bell Telephone and Telegraph Company alleging a cause of action under Georgia law for the invasion of her right of privacy. The complaint alleged that Strasser and West, with the aid and assistance of Southern Bell, caused and procured a wiretap on her telephone and monitored, recorded, and listened to her private conversations with her physician and others. The acts of defendants were alleged to have been willful, intentional, and malicious, and were said to have caused plaintiff great mental anguish, distress, worry, fear, and embarrassment. It was not alleged that defendants had published or disclosed any of the information obtained from the alleged wiretap.1

Defendants Strasser and West then removed the case to the United States District Court for the Northern District of Georgia by filing timely removal petitions under 28 U.S.C.A. § 1442 (a)(1).2 The petitions stated that West and Strasser were special investigators for the Alcohol and Tobacco Tax Division, Internal Revenue Service. Both defendants, while denying the wiretap, alleged that "such acts complained of by plaintiff, if committed, were committed within the scope of defendant's employment and under the color of his office and not for any purpose personal to this defendant." Plaintiff filed no motion to remand. Southern Bell did not file a removal petition but it is settled that the filing of a petition for removal by a single federal officer removes the entire case to the federal court. Allman v. Hanley, 5 Cir., 1962, 302 F.2d 559.

West, Strasser, and Southern Bell all moved the District Court under Rule 12 (b)(6), F.R.Civ.P., to dismiss the complaint for failure to state a claim upon which relief could be granted. The grounds for the motions, as developed by briefs and oral argument, were that disclosure or publication of the information obtained by wiretapping, which was not alleged in the complaint, was an essential prerequisite under Georgia law to recovery for invasion of privacy, and that in any event, West and Strasser were immune from liability by virtue of being federal officers acting within the scope of their official duties. No affidavits or counter affidavits were submitted in support of or opposition to the motions. The District Court dismissed the complaint as to all defendants, stating that while it appeared that Georgia law required publication for a cause of action for invasion of privacy, the more compelling reason for granting the motions to dismiss was the immunity afforded government officers for acts committed in the exercise of their official functions.3 No finding was made that West and Strasser were federal officers acting within the scope of their respective offices, nor was any mention made of why Southern Bell was dismissed. From this judgment, plaintiff appeals.

The first question for our consideration is whether the District Court on the record before it was justified in dismissing the complaint on the grounds of the privilege accorded federal officers acting in the line of duty. The record before the District Court consisted of the plaintiff's complaint, the removal petitions of West and Strasser, and the 12(b)(6) motions of all three defendants. West's removal petition was verified personally by him as "true to the best of his knowledge, information and belief." Counsel for Strasser verified his petition on the same basis. No affidavits or other evidence of any kind were presented to the court.

In the mine run of cases, a motion under Rule 12(b) (6) serves the same function as a common law general demurrer, i. e., it is used to challenge the legal sufficiency of the complaint. The complaint is to be liberally construed, and a dismissal is not warranted unless it is clear that plaintiff would be entitled to no relief under any state of facts that might be proved in support of the complaint. If only the complaint is considered in the present case, it is apparent that dismissal under Rule 12(b)(6) on the grounds of the privilege accorded federal officers was not warranted. The complaint made no allegation that West and Strasser were federal officers or that they were acting in the line of duty. Thus, if publication is not a requisite under Georgia law to a cause of action for invasion of privacy, the complaint itself, considered in isolation, was legally sufficient to state a cause of action.

However, the Federal Rules have wisely not restricted District Courts to mere consideration of the complaint in isolation when dealing with a motion under Rule 12(b)(6). Matters outside the complaint may be considered, and for such eventuality Rule 12 provides that the motion be treated as one for summary judgment and disposed of in accordance with Rule 56, the summary judgment rule.4

In the present case, the District Court went beyond the complaint and apparently based its dismissal on the verified removal petitions. The motions were thus treated as motions for summary judgment, and the narrow question before us is whether the defendants carried their burden of showing that there was no genuine issue as to any material fact, and that they were entitled to judgment as a matter of law. Rule 56(c), F.R.Civ.P.

We hold that defendants failed to establish that there was no genuine issue of fact. It was incumbent upon them to show through specific facts that West and Strasser were federal officers acting within the outer perimeter of their duties, and hence privileged in the premises alleged, Barr v. Matteo, 1959, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434; Norton v. McShane, 5 Cir., 1964, 332 F.2d 855, and that these facts were not controverted by plaintiff. The bare, conclusory allegations of the removal petitions, stating generally that West and Strasser were acting within the scope of their employment and under color of office, were inadequate for this purpose. These allegations were legal conclusions unsupported by facts.

Defendants contend that the removal petitions, being verified, must be accepted as true in the absence of contravention by plaintiff. They argue, in effect, that the verified removal petitions are equivalent to affidavits supporting their motions, which require the opposing party to respond and show by specific facts that there is no genuine issue for trial. Rule 56(e), F.R.Civ.P.5

We agree that verified pleadings may in some circumstances be treated as affidavits in support of a motion for summary judgment which require the opposing party to respond under Rule 56(e). Fletcher v. Norfolk Newspapers, Inc., 4 Cir., 1956, 239 F.2d 169; Williams v. Kolb, 1944, 79 U.S.App.D.C. 253, 145 F.2d 344. However, summary judgment is not warranted unless the verified pleadings meet the standards for affidavits laid down by Rule 56(e). The verified removal petitions here were inadequate because, as noted supra, they set forth no facts and spoke only in legal conclusions. Engelhard Industries, Inc. v. Research Instrumental Corp., 9 Cir., 1963, 324 F.2d 347; Creel v. Lone Star Defense Corp., 5 Cir., 1949, 171 F.2d 964, rev'd on other grounds, 1950, 339 U.S. 497, 70 S.Ct. 755, 94 L.Ed. 1017; Martin v. Allied International, Inc., S.D.N.Y., 1954, 16 F.R.D. 385. Moreover, verification must be on personal knowledge alone, whereas these petitions were verified only on "knowledge, information and belief." Rule 56(e), supra, and F. S. Bowen Electric Co. v. J. D. Hedin Construction Co., 1963, 114 U.S.App.D.C. 361, 316 F.2d 362; Chan Wing Cheung v. Hamilton, 1 Cir., 1962, 298 F.2d 459; Peter Pan Fabrics, Inc. v. Dixon Textile Corp., 2 Cir., 1960, 280 F.2d 800.6 Additionally, the defense of sovereign privilege imposes a drastic impingement on personal liberty, and is recognized only because this impingement is considered justified in order to encourage public officials to fearlessly discharge the duties of their office. Gregoire v. Biddle, 2 Cir., 1949, 177 F.2d 579, cert. denied, 1950, 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363. The defense should not be sustained on the basis of technical procedural defaults of the opposing party or in the absence of a clear and specific factual demonstration that the actions of the officers were indeed taken in pursuit of their official duties. This standard has not yet been met in connection with the alleged wiretapping here.

The removal petitions being inadequate to support a motion for summary judgment, it follows that the District Court erred in dismissing the complaint and that the case must be remanded for development of the facts pertaining to defendant's defense of privilege, unless, irrespective of that defense, the complaint is otherwise so defective under Georgia law as to render it vulnerable to a motion to dismiss for failure to state a claim. In this regard, defendants contend that the dismissal should be affirmed because under Georgia law, no cause of action for the invasion of privacy by wiretapping arises in the absence of publication or disclosure of the information overheard. We proceed, therefore, to consideration of this question.

The Georgia decision most directly in point is McDaniel v. Atlanta Coca-Cola Bottling Co., 1939, 60 Ga.App. 92, 2 S.E. 2d 810. In that case, plaintiff alleged that defendant had secretly entered her hospital room and concealed a listening device by means of which defendant overheard and recorded plaintiff's intimate...

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