Hibben v. Kuchaj

• Decision Date: 29 September 1953
• Docket Number: No. 52 C 530.,52 C 530.
• Citation: 117 F. Supp. 55
• Parties: HIBBEN v. KUCHAJ et al.
• Court: U.S. District Court — Northern District of Illinois

117 F. Supp. 55

HIBBEN v. KUCHAJ et al.

No. 52 C 530.

United States District Court N. D. Illinois.

September 29, 1953.

Harold J. Sachs, Chicago, Ill., for plaintiff.

Eckhart, Klein, McSwain & Campbell, Chicago, Ill., for defendants.

HOFFMAN, District Judge.

On March 7, 1952, plaintiff filed his complaint alleging that he was the occupant of certain premises located in Chicago, Illinois, owned by the defendants; that the premises were housing accommodations subject to the Housing and Rent Act of 1950 and the Housing and Rent Act of 1951, the Housing and Rent Act of 1947, as amended, 50 U.S. C.A.Appendix, § 1881 et seq., and that the defendants had collected or received the sum of $1425 in excess of the maximum rent for the premises occupied by the plaintiff during the period between August 23, 1950, and February 1, 1952.

On April 8, 1952, the defendants moved to dismiss the complaint on the ground that the premises involved were not subject to rent control. In their motion the defendants asserted their belief that the basis for the plaintiff's action was an order of the Area Rent Director dated February 18, 1952, decreasing the maximum rent for the premises, retroactive to August 23, 1950, the day the premises were first rented. The plaintiff subsequently filed a brief in answer to the defendants' motion reciting that the plaintiff's cause of action arose out of the February 18, 1952 order of the Area Rent Director. A copy of this order was attached to and incorporated in plaintiff's brief. Subsequently, on July 22, 1952, the defendants filed an amended motion to dismiss, in which they asserted that on July 15, 1952, the Area Rent Director had modified his earlier order to make the reduction of rent therein provided effective as of the date of the order (February 18, 1952).

On June 9, 1953, the defendants filed a second amended motion to dismiss in which they asserted the order of February 18, 1952, of the Area Rent Director reducing the rental retroactively to August 23, 1950, the modification of this order on July 15, 1952, to remove the retroactive operation of it, and further alleged that the plaintiff had appealed to the Office of Rent Stabilization in Washington and that on May 13, 1953, this office had affirmed the order of the Area Rent Director of July 15, 1952. A copy of the order of the Office of Rent Stabilization was attached to this second amended motion to dismiss.

The defendants filed a brief in support of the second motion to dismiss the complaint, arguing that the elimination of the retroactive effect of the rent reduction automatically removed the basis of the cause of action and that the Area Rent Director had ample authority under the statute and the regulations to modify his earlier order. The plaintiff filed an answer entitled "Plaintiff's reply to defendants' second amended motion to dismiss," supported by a brief, admitting the orders and modifications thereof above recited but arguing that the Area Rent Director had no authority under the statute or regulations to modify the first order. More particularly, the plaintiff argued that the Area Rent Director was limited by the Rent Regulations issued by the Office of Rent Stabilization to fixing the maximum rent effective as of either the date on which rent control first became effective or the date on which the particular premises involved were first rented. This latter date was August 23, 1950. The defendants have filed a brief in reply to the plaintiff's answer.

Rule 12 of the Federal Rules of Civil Procedure, 28 U.S.C.A., Paragraph (b), provides that if, on a motion directed at a pleading and asserting failure to state a claim upon which relief can be granted, matters outside the pleading are presented to and...