Hardge-Harris v. Pleban

• Decision Date: 29 June 1990
• Docket Number: No. 89-1574C(6).,89-1574C(6).
• Citation: 741 F. Supp. 764
• Parties: Peggy HARDGE-HARRIS, et al., Plaintiffs, v. Chet PLEBAN, et al., Defendants.
• Court: U.S. District Court — Eastern District of Missouri

741 F. Supp. 764

Peggy HARDGE-HARRIS, et al., Plaintiffs, v. Chet PLEBAN, et al., Defendants.

No. 89-1574C(6).

United States District Court, E.D. Missouri.

June 29, 1990.

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Doris Gregory Black, St. Louis, Mo., for plaintiffs.

Lawrence J. Fleming, Greenberg Pleban Fleming & Simons, St. Louis, Mo., for defendants.

John Shepherd, Mary C. Kickham, St. Louis, Mo., for Tarkio College.

MEMORANDUM

GUNN, District Judge.

This case is currently before the Court on defendants' petition for removal (which plaintiffs oppose) and on defendants' motion to dismiss or, in the alternative, for summary judgment. For the reasons set forth below, the Court finds that this case was properly removed and grants defendants' motion for summary judgment.

Plaintiffs Peggy Hardge-Harris, her husband, Bernard Harris, and her children, Andrea and Andrew Terrence Hardge, originally filed this action in state court alleging thirteen separate counts including: false imprisonment; civil conspiracy; defamation; slander per se; malicious prosecution; invasion of privacy-false light; intentional infliction of emotional distress upon Hardge-Harris; negligent infliction of emotional distress upon Bernard Harris; loss of consortium by Bernard Harris; negligent infliction of emotional distress upon Andrea Hardge; negligent infliction of emotional distress upon Andrew Terrence Hardge; loss of consortium by Andrea Hardge; and loss of consortium by Andrew Terrence Hardge.

The named defendants in this case are listed on plaintiffs' petition as follows: "Chet Pleban, individually and as agent for Tarkio College, Greenberg and Pleban, David Stinson; Vincent D. Vogler, Jr., individually and as agent for Tarkio College, and Vincent D. Vogler & Associates, David Stinson; Burton Greenberg, individually and as agent for Tarkio College, Greenberg and Pleban, David Stinson; Chet Pleban and Burton Greenberg, partners doing business as Greenberg and Pleban, a Missouri general partnership, individually and as agent for Tarkio College, David Stinson; Vincent D. Vogler, doing business as Vincent D. Vogler and Associates, a Missouri general partnership, individually and as agent for Tarkio College, David Stinson; Tarkio College, a not for profit corporation; and David Stinson, individually and as agent for Tarkio College." In Count I of her petition, plaintiff further identifies defendants Pleban, Burton and Vogler as attorneys licensed in Missouri, with their principal places of business in Missouri, doing business as individuals and as members of their law partnerships, and acting, at all times relevant to this matter, as representatives of Tarkio College. Plaintiff alleges that Tarkio College is a not for profit corporation incorporated and existing under the laws of the state of Missouri and having its principal place of business in Missouri. Plaintiff alleges that David Stinson is a resident and citizen of the state of Missouri and acted, at all times relevant to this matter, as representative of Tarkio College. Hardge-Harris alleges that she is an attorney licensed to practice law in Missouri and that she and her family reside in Missouri.

As the basis for her claim of false imprisonment (Count I) Hardge-Harris alleges that "the defendants," "between the dates of July 14th and July 19th, 1988" caused plaintiff to be arrested and held for questioning by United States Postal Inspectors. Plaintiff further alleges that she was not guilty of the crime with which she was charged and that there was no reasonable ground for her arrest and detention. She alleges that her arrest and detention caused her great emotional distress and injured her career by damaging her reputation and good name. Finally, she alleges that defendants' actions were "willful, wanton, reckless and malicious nature sic."

As the basis for her claim of civil conspiracy (Count II), Hardge-Harris alleges that "the defendants," knowing that an arrest was to take place at a certain meeting, entered into an agreement to "request and mandate" Hardge-Harris' attendance at the meeting. Hardge-Harris again alleges emotional distress and damage to her reputation and career and again alleges that defendants' actions were willful and malicious.

As the basis for her claim of defamation (Count III), Hardge-Harris alleges that "the defendants, between July 14 and July 19, 1988, communicated to U.S. Postal Inspectors that plaintiff was conspiring to extort, extorting and/or attempting to extort, and obstructing justice." She further alleges that defendants made these communications maliciously and in reckless disregard for the truth and that defendants' actions were willful and wanton. She again alleges emotional distress and loss of reputation and good name.

As the basis for her claim of slander per se (Count IV), Hardge-Harris essentially realleges the facts set forth in Count III, with the additional allegation that "those hearing said false, defamatory and slanderous words understood them as meaning and intended to mean and being understood to mean that plaintiff was committing a crime under the laws of the United States and constitute slander per se."

As the basis for her claim of malicious prosecution (Count V), Hardge-Harris alleges that "defendants" informed agents of the United States Postal Service that they suspected Hardge-Harris of conspiring to extort, attempted extortion and obstruction of justice. Hardge-Harris further alleges that defendants caused her to attend a meeting and thus to appear to be part of a conspiracy to extort, attempt to extort and obstruct justice. Further, Hardge-Harris alleges that defendants caused "others" to appear before a federal grand jury and caused that grand jury, in turn, to hand down an indictment of Hardge-Harris. Hardge-Harris alleges that defendants "took and incited and aided and caused others to arrest and take plaintiff into custody and hold her by force and duress and against her will...." Hardge-Harris further alleges that defendants "encouraged, incited, and caused a criminal charge and proceeding to be filed on August 3, 1988, in the United States District Court, Eastern District, wherein they unlawfully, maliciously, without legal right or authority, and with intent to injure plaintiff in her name and reputation, charged plaintiff with the felonies of conspiracy to extort and attempted extortion." Finally, Hardge-Harris alleges that she was acquitted of those charges on December 5, 1988. As a result of the above, Hardge-Harris alleges that she suffered mental and physical injury and damage to her reputation and character.

As the basis for her claim of invasion of privacy-false light (Count VI), Hardge-Harris alleges that defendants "communicated publicly and caused others to communicate publicly" accusations of Hardge-Harris' commission of the felonies described above. Hardge-Harris alleges that defendants knew these accusations to be false and made them with reckless disregard for their falsity. Hardge-Harris alleges emotional and physical injury and, finally, alleges that defendants' actions were willful, wanton and malicious.

As the basis for her claim of intentional infliction of emotional distress (Count VII), Hardge-Harris alleges that defendants notified United States Postal Inspectors of Hardge-Harris' involvement in the purported conspiracy to extort and requested Hardge-Harris' attendance at a meeting at which, defendants knew, United States Postal Inspectors would effectuate the arrest of the suspected conspirators. Hardge-Harris realleges the same injuries and alleges that defendants' actions were willful, wanton and malicious.

As the basis for his claim for negligent infliction of emotional distress (Count VIII), Bernard Harris alleges that, because of all of the alleged injuries to his wife, he suffered emotional distress, embarrassment, public ridicule, scorn and trauma. Harris further alleges that defendants reasonably could have foreseen that he would be so injured. Finally, he alleges that defendants' actions were willful, wanton and malicious.

As the basis for his claim of loss of consortium (Count IX), Bernard Harris alleges that "solely by reason of and as the sole and proximate result of the willful acts of the defendants, plaintiff has lost the consort, society, companionship, affection and support of his wife" and, therefore, was damaged. Harris alleges that defendants' actions were willful, wanton, and malicious.

As the basis for her claim of negligent infliction of emotional distress (Count X), Andrea Hardge alleges that, because of the defendants' alleged tortious acts, she was injured by "being forced to witness the suffering of her mother" and that defendants reasonably could have foreseen that she would be so injured. Hardge further alleges that defendants' actions were willful, wanton and malicious.

For his claim of negligent infliction of emotional distress (Count XI), Andrew Hardge essentially restates his sister's claim in Count X.

For their claims of loss of consortium (Counts XII and XIII), Andrea and Andrew Hardge allege that, as a result of defendants' actions, they were "denied the care, protection, consideration, companionship, aid and society" of their mother. They both allege that defendants' actions were willful, wanton and malicious.

All four plaintiffs seek both actual and punitive damages.

The defendants assert 28 U.S.C. § 1442¹ as their basis for removal. In support of their petition, defendants allege that, at all times relevant to this matter, they were acting at the request and under the direction of agents of the United States Postal Inspection Service and the United States Attorney's office. In addition, defendants allege that both Pleban and Vogler were acting as attorneys and officers of the federal court. Moreover, defendants allege that, based upon the supervision and direction of their actions by federal authorities, they...