Goldfarb v. Muller

• Decision Date: 17 December 1959
• Docket Number: Civ. A. 903-58.
• Citation: 181 F. Supp. 41
• Parties: Jacob P. GOLDFARB, Plaintiff, v. Richard H. MULLER, Defendant and Third-Party Plaintiff (John S. Davidson, Third-Party Defendant).
• Court: U.S. District Court — District of New Jersey

181 F. Supp. 41

Jacob P. GOLDFARB, Plaintiff, v. Richard H. MULLER, Defendant and Third-Party Plaintiff (John S. Davidson, Third-Party Defendant).

Civ. A. 903-58.

United States District Court D. New Jersey.

December 17, 1959.

Archie Elkins, Jersey City, N. J., for Jacob P. Goldfarb.

Gaffey & Webb, John Gaffey, Newark, N. J., for Richard H. Muller.

Chester A. Weidenburner, U. S. Atty., Barbara A. Morris, Asst. U. S. Atty., Newark, N. J., for John S. Davidson.

FORMAN, Circuit Judge (specially designated).

On March 3, 1958, Jacob Goldfarb commenced a suit against Richard H. Muller in the Law Division of the Superior Court of New Jersey, Monmouth County, alleging that because of the negligence of Muller an accident had occurred on March 16, 1956, in which Muller's automobile struck that of Goldfarb who seeks damages for personal injuries incurred thereby. Muller filed his answer on March 19, 1958. On July 11, 1958, he filed a third party complaint against John S. Davidson, the driver of a United States Postal Service truck, under the provisions of the New Jersey Joint Tortfeasors Act, N.J.S.A. 2A:53A-1 et seq., alleging that Davidson caused the accident, and claiming contribution from Davidson toward any judgment which might be entered against him in favor of Goldfarb.

On August 11, 1958, Davidson filed a petition to remove the case to this court by the United States Attorney.

On August 15, 1958, Davidson filed his answer to Muller's third party complaint. The answer alleges in part that Muller had administratively settled his claim with the United States Government for $94.50 and had accepted payment of that sum on July 7, 1958, thereby releasing the United States and Davidson from liability under the provisions of 28 U.S.C. § 2672.

Davidson has moved for summary judgment or dismissal of the third party complaint on the ground of release.

The plaintiff Goldfarb has moved to sever the third party action of Muller against Davidson and to remand his case against Muller to the Law Division of the Superior Court.

Although not mentioned in the petition the United States Attorney has submitted in his brief that Davidson's petition to remove is based on § 1442(a) of Title 28 U.S.C., which is as follows:

"§ 1442. Federal officers sued or prosecuted.

"(a) A civil action or criminal prosecution commenced in a State court against any of the following persons may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:

"(1) Any officer of the United States or any agency thereof, or person acting under him, for any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue.

"(2) A property holder whose title is derived from any such officer, where such action or prosecution affects the validity of any law of the United States.

"(3) Any officer of the courts of the United States, for any Act under color of office or in the performance of his duties;

"(4) Any officer of either House of Congress, for any act in the discharge of his official duty under an order of such House."

A reading of subsection (a) (1) makes it clear that the motion to remand should be denied only if Davidson was an officer of the United States, or a person acting under such officer under color of office at the time of the occurrences alleged in the third party complaint.

Section 1442 has been, described as having

"* * * originated in 1833 during the `nullification' controversy between the United States and South Carolina. Its purpose was to protect those charged with the enforcement of the federal revenue laws from prosecutions in state courts for violations of state law. See State of Tennessee v. Davis, 100 U.S. 257, 25 L.Ed. 648, where its constitutionality was upheld. The section appears as Section 643 of the Revised Statutes and in 1875 was extended to include officers of either house of Congress while engaged in discharging their official duties. 18 Stat. 371, 401. In 1916 the section was amended and the removal privilege extended to any officer of the courts of the United States as noted above. 39 Stat. 532." Ampey v. Thornton, D.C.D.Minn.1946, 65 F.Supp. 216, 217.

"The present § 1442 of the 1948 Revised Code is a consolidation of §§ 76 and 77 of Title 28 (1940 Edition), being amended Section 33 of the Judicial Code, which was limited in its application to revenue officers in the enforcement of the criminal or revenue laws." State of Oklahoma v. Willingham, D.C.E.D.Okla.1956, 143 F.Supp. 445, 447.

The reviser's notes state that "The revised subsection (a) (1) set forth above is extended to apply to all officers and employees of the United States or any agency thereof. * * *." In his brief the United States Attorney contends that "A fair reading of these notes leads to the conclusion that the intention of Congress was to include all employees of the United States within its provisions and therefore, third-party, Davidson, can properly invoke it." This is true providing Davidson was acting under the color of office at the time the incident complained of occurred.

The United States Attorney also contends that implicit in its allegation that Davidson was a Post Office employee acting under the Postmaster, an officer of the United States, "is the fact that Davidson's actions * * * were under color of the office alleged therein." But color of office is not synonymous with performance of duties. It is on this basis that Brann v. McBurnett, D.C.E.D. Ark.1939, 29 F.Supp. 188, upon which the United States Attorney relies is readily distinguishable. The defendants in that case were Deputy United States Marshals charged with the negligent operation of their vehicle, in which they were transporting prisoners, pursuant to a court order. The case arose under what is now subsection (a) (3) of § 1442, then contained in § 76 of Title 28. In pertinent part it read as follows:

"When any civil suit or criminal prosecution is commenced in any court of a State * * * against any officer of the courts of the United States for or on account of any act done under color of his office or in the performance of his duties as such officer * * * the said suit or prosecution may at any time before the trial or final hearing thereof be removed for trial into the district court next to be holden in the district where the same is pending upon the petition of such defendant to said district court." (Emphasis supplied.)

Thus an officer of a United States court may remove from a state court, when the act complained of was either under "color of office or in the performance of his duties.", (emphasis supplied) whereas removal obtains under subsection (a) (1) only if the act complained of was done under color of office.

In Fink v. Gerrish, D.C.S.D.N.Y.1957, 149 F.Supp. 915, the defendants, Internal Revenue Agents, were alleged to have negligently run down the plaintiff, a pedestrian, while driving a government owned vehicle and to have falsely arrested and imprisoned him. In granting plaintiff's motion to remand the case to the state court from which the defendants had removed it, the court noted that:

"The government in support of the removal places much reliance on Brann v. McBurnett, D.C.E.D.Ark. 1939, 29 F.Supp. 188, 189. That was an action brought in a State court against a United States Marshal for negligently operating an automobile while transporting prisoners. The District Court, upholding removal, held that the Marshal was acting under the authority and direction of the court in transporting the prisoners to the federal penitentiary at Leavenworth and, therefore, was acting `in the performance of his duties as such officer.' With deference we disagree." 149 F.Supp. at page 916.

The United States Attorney contends that Fink v. Gerrish is contrary to the weight of authority. In this connection there is attached to his brief a memorandum opinion filed August 11, 1958 in Pepper v. Sherrill, D.C.E.D.Tenn., 181 F. Supp. 40. In that case the defendant was a postal employee who was carrying a special delivery letter at the time he was alleged to have negligently operated his vehicle so that it collided with that of the plaintiff. In denying plaintiff's motion to remand the court cited with approval Brann v. McBurnett, supra, without discussing the distinguishing aspects of that case as noted heretofore. Thus in neither Fink v. Gerrish, supra, nor Pepper v. Sherrill did the court note that Brann v. McBurnett was removed under the exact language of 28 U.S.C. § 76, which is the present subsection (a) (3) of § 1442 of Title 28 U.S.C.

In Pepper v. Sherrill the court distinguished Fink v. Gerrish saying:

"* * * The facts in that case were that the defendants, after the accident, forcibly imprisoned the plaintiff in their motor vehicle, even handcuffing him to the wheel. Such an intentional tort is far removed from the performance of the duties of the employes of the government."

While it is true that the defendants were alleged to have falsely imprisoned and arrested the plaintiff the opinion in Fink makes it clear that the case was not remanded on the basis of an intentional tort. Indeed the court in Fink said "* * * nor is there any statement in the petition for removal referring to the causes of action for false arrest and false imprisonment." The court did refer "parenthetically" to the allegations of false arrest and imprisonment and said: "Perhaps if this statement is true it suggests the reason why the government has remained silent in its petition concerning the facts of the false arrest and false imprisonment." However, in granting the motion to remand the court stated the issue as follows: "In any event the narrow question presented on this motion for remand is whether the negligent running down of a pedestrian by two government employees in a...