Lindy v. Lynn, Civ. A. No. 74-1849.
Decision Date | 31 October 1974 |
Docket Number | Civ. A. No. 74-1849. |
Citation | 395 F. Supp. 769 |
Parties | Philip B. LINDY, trading as Fountain View Apartments v. James LYNN et al. |
Court | U.S. District Court — Eastern District of Pennsylvania |
Victor Wright, Philadelphia, Pa., for plaintiff.
Victor L. Schwartz, Asst. U. S. Atty., William L. Matz, H. Kenneth Tull, Philadelphia, Pa., for defendants.
On July 17, 1974, the plaintiff filed an action in equity in the Court of Common Pleas of Philadelphia County at which time a preliminary injunction was granted. On July 22, 1974, as one of the defendants is an officer of the United States, the action pursuant to the provisions of 28 U.S.C. § 1442(a)(1) was removed to this court. Presently before the Court is the motion of the plaintiff to remand this case to the Court of Common Pleas and the motions of the defendant, Metropolitan Federal Savings and Loan Association (Metropolitan) to dissolve the preliminary injunction and to dismiss the plaintiff's cause of action. The Secretary of Housing and Urban Development (HUD) has also filed a motion to dismiss and/or for summary judgment.
We will consider first the Motion to Remand. A review of the history of this case is a necessary prelude to our disposition of this motion. We note, preliminarily that this case presents a situation identical in all material respects to that presented to this Court by the plaintiff in an action previously filed by him. Lindy v. Lynn, et al., (E.D.Pa. C.A. 73-1442). By Opinion and Order dated October 29, 1973, we concluded that the record supported the defendants' contentions and entered a judgment dismissing the plaintiff's cause of action. Upon appeal, our Court of Appeals vacated the judgment of the district court and directed that the complaint be dismissed for want of jurisdiction. Lindy v. Lynn, et al., (3d Cir. 1974-C.A. No. 73-2056, opinion filed July 15, 1974). Plaintiff thereupon filed the complaint at bar in the Court of Common Pleas and as heretofore related the removal proceedings were adopted followed by the petition to remand.
28 U.S.C. § 1442(a)(1) in relevant part provides:
We agree with the view expressed by the Court in The People of the State of California v. Bozarth, 356 F. Supp. 667 (N.D.Cal.1973), wherein the Court stated:
id. at 668-669.
We also are of the opinion that the plaintiff's contention that original federal jurisdiction is a necessary ingredient to validate removal proceedings against a Federal officer to be without merit. See, Poss v. Lieberman, 299 F.2d 358 (2d Cir. 1962). "Congress has not in § 1442, as in § 1441, required that the case be one over which the court have original jurisdiction in order for the defendant to obtain removal." id. at 359. See also: Sarner v. Mason, 228 F.2d 176 (3d Cir. 1955) cert. denied, 351 U.S. 924, 76 S.Ct. 781, 100 L.Ed. 1454 (1956); State of North Carolina v. Carr, 386 F.2d 129 (4 Cir. 1967); People of State of California v. Bozarth, supra; United States v. Penney, 320 F.Supp. 1396 (D.C.D.C.1973).
As it is undisputed that the federal defendant Lynn acted within his official capacity as Secretary of HUD we are impelled to conclude that the plaintiff's motion to remand is denied and the case will remain in the District Court.
We shall now turn to a consideration of the defendants' motions to dismiss or for summary judgment. The Court of Appeals for this circuit summarized the facts in the former suit instituted by Lindy. There the Court observed:
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