Hopkins v. Wasson

• Decision Date: 05 March 1962
• Docket Number: Civ. A. No. 3627.
• Citation: 227 F. Supp. 278
• Parties: Myrtie HOPKINS v. Condon WASSON et al.
• Court: U.S. District Court — Eastern District of Tennessee

227 F. Supp. 278

Myrtie HOPKINS v. Condon WASSON et al.

Civ. A. No. 3627.

United States District Court E. D. Tennessee, S. D.

March 5, 1962.

John S. Wrinkle, Chattanooga, Tenn., for plaintiff.

James G. Nave, James F. Corn, Cleveland, Tenn., for defendants.

FRANK W. WILSON, District Judge.

The complaint in this case purports to set forth two causes of action, both predicated upon certain alleged actions of the defendants in their capacities as Bradley County school officials. The plaintiff claims that the defendants conspired to decline and refuse renewal of her contract as a teacher in the Bradley County High School after its termination at the end of the 1959-1960 school year, for unfounded slanderous reasons which they uttered against her. She claims that these actions defamed her and deprived her of her civil rights, and that she accordingly has a cause of action for each of these wrongs, for the former under the common law of slander, and for the latter under Title 42 U.S.C.A. §§ 1981-1988.

The defendants have filed a motion for summary judgment upon the grounds principally that there is no diversity of citizenship between the parties sufficient to invoke the jurisdiction of this Court upon the plaintiff's common law claim, and that, as to the civil rights claim, the complaint alleges no deprivation of a right created or secured by the Constitution or laws of the United States.

1. With reference first to the question of diversity of citizenship, this question is not properly raised by a motion for summary judgment. A motion to dismiss or a suggestion of a lack of jurisdiction is the correct method of raising this issue under Rule 12 of the Federal Rules of Civil Procedure. See 1A Barron & Holtzoff, Federal Practice and Procedure, Sec. 352. Nevertheless, there is authority for treating a motion for summary judgment such as that in the present case as a "suggestion" under Rule 12(h), and for allowing the parties a prescribed time within which to submit such further affidavits and proof as they may wish upon the jurisdictional issue. Kantor v. Comet Press Books Corp., D.C., 187 F.Supp. 321.

In this connection, some question has been raised as to whether the issues of diversity jurisdiction is triable to the Court or to a jury. Upon this point, Rule 12(d) provides as follows:

"Preliminary Hearings. The defenses specifically enumerated (1)-(7) in subdivision (b) of this rule including lack of jurisdiction, whether made in a pleading or by motion, and the motion for judgment mentioned in subdivision (c) of this rule shall be heard and determined before trial on application of any party, unless the court orders that the hearing and determination thereof be deferred until the trial."

Similarly, it is stated in 1 Barron & Holtzoff, Federal Practice and Procedure, Sec. 26, that "The determination of the issue whether diversity jurisdiction exists is a question for the Court without reference to a jury." See also Fireman's Fund Ins. Co. v. Railway Express Agency, Inc. (6th Cir.), 253 F.2d 780, holding that jurisdictional issues are properly triable to the Court prior to trial on the merits, at least where, as here, determination of the jurisdictional issue does not involve a determination of the merits of the case.

If either party desires a hearing for the oral examination or cross-examination of witnesses upon the jurisdictional issue, the Court will be so advised in writing within ten days of this Opinion, whereupon a hearing will be scheduled. Otherwise, the parties will be allowed 30 days from the entry of this Opinion within which to submit such other evidence as they may wish upon the issue of diversity of citizenship, and the Court will thereafter rule upon this question.

2. Turning now to the question of whether the plaintiff has stated a cause of action for violation of her civil rights, the Court is of the opinion that she has not, and that the motion for summary judgment must therefore be sustained as to the civil rights claim of the complaint.

In her complaint, the plaintiff alleges merely that the defendants failed to rehire her at the expiration of the 1959-1960 school year. There is no allegation that the plaintiff's contract was breached or that the obligation thereof was impaired. Upon the contrary, the complaint acknowledges that the plaintiff's contract had expired, and further that the plaintiff was not on tenure under the laws of the State of Tennessee. Accordingly, she had no right, statutory or contractual, to be rehired, and nothing in Title 42 U.S. C.A. §§ 1981-1988 entitles her to redress for not being rehired under these circumstances.

Nor does the plaintiff make an adequate claim that the defendants unconstitutionally discriminated against her in failing to renew her contract. In this connection it is well to compare the present case with Brooks v. School District of City of Moberly, 8 Cir., 267 F.2d 733, where the plaintiffs failed to recover upon an alleged civil rights violation much stronger than that now before the Court. In the Brooks case the plaintiffs, Negro teachers, claimed that their civil rights were violated when, after integration of the white schools of the Moberly school system and abandonment of the colored school at which the plaintiffs had formerly taught, the defendants failed to renew the contracts of the plaintiffs, who constituted all of the Negro teachers formerly teaching in the Moberly colored school. Relief was denied the plaintiffs on the ground that they had failed to show that the action of the defendants resulted from racial discrimination.

It is true that the Brooks decision was not rendered by way of summary judgment, but only after a trial at...