Mantin v. Broadcast Music, 15188.
Decision Date | 22 October 1957 |
Docket Number | No. 15188.,15188. |
Citation | 248 F.2d 530 |
Parties | Leo MANTIN, Appellant, v. BROADCAST MUSIC, Inc., a corporation, et al., Appellees. |
Court | U.S. Court of Appeals — Ninth Circuit |
Fendler & Lerner, Harold A. Fendler, Robert W. Lerner, Robert Haves, Beverly Hills, Cal., for appellant.
Wright, Wright, Green & Wright, Edgar R. Carver, Jr., Richard M. Goldwater, Loyd Wright, Los Angeles, Cal., for appellee.
Before MATHEWS, FEE and CHAMBERS, Circuit Judges.
In the United States District Court for the Southern District of California, Leo Mantin, hereafter called plaintiff, brought a civil action against 34 defendants. None of the defendants answered. Six of the defendants moved to dismiss the action.1 None of the other defendants appeared. The District Court granted the motion and entered a judgment dismissing the action. Plaintiff appealed from the judgment.
As heretofore held by us,2 we have jurisdiction of the appeal.
This was a diversity action — an action invoking the District Court's jurisdiction under 28 U.S.C.A. § 1332. After hearing argument on the appeal, we discovered that the complaint alleged, in substance, that each of the defendants was a citizen or corporation of a State other than California or was a foreign corporation, and that plaintiff was a resident of California, but did not allege that plaintiff was a citizen of California. We pointed this out on May 3, 1957.3 Thereafter, pursuant to 28 U.S. C.A. § 1653, the jurisdictional allegations of the complaint were amended in this court so that they now include an allegation that plaintiff was and is a citizen of California. We accordingly hold that the District Court had jurisdiction of the action.
In and by the motion, the moving defendants sought to have the action dismissed in its entirety; which is to say, they sought to have it dismissed not only as to themselves, but also as to the nonmoving defendants; and the District Court did so dismiss it. This was error; for the moving defendants, obviously, had no standing to seek dismissal of the action as to the nonmoving defendants.
Rule 12(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., provides:
The motion in this action was a motion asserting the defense numbered (6) to dismiss the action for failure of the complaint5 to state a claim upon which relief could be granted. On this motion, matters outside the complaint were presented to and not excluded by the District Court.6 Therefore the District Court was required by Rule 12(b) to treat the motion as one for summary judgment; dispose of it as provided in Rule 56; give plaintiff and the moving defendants reasonable opportunity to present all material made pertinent to such a motion by Rule 56;7 thereupon determine whether the complaint, the depositions, if any, the admissions, if any, the affidavits of Kerby and Janssen and the other affidavits, if any, showed that, as between plaintiff and the moving defendants, there was no genuine issue as to any material fact, and that the moving defendants were entitled to a judgment as a matter of law; if so, render...
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...motion, it would have no standing to seek dismissal of the complaint against its non-moving employees. See, e.g., Mantin v. Broad. Music, Inc., 248 F.2d 530, 531 (9th Cir.1957) (holding that moving defendants lacked standing to seek dismissal of complaint as to non-moving defendants). Even ......
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...(3d Cir. 1966). 7 The instant motion is made solely on behalf of Venezolana and is so treated by the court. Cf. Mantin v. Broadcast Music, Inc., 248 F.2d 530, 531 (9th Cir. 1957). Service of process was never effected upon United Aircraft in this District. Lockheed and Curtiss-Wright have n......
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Clinton Community Hosp. Corp. v. Southern Md. Med. Ctr.
...be precluded from considering any failure on the part of the plaintiff to state a claim against them. Mantin v. Broadcast Music, Inc., 248 F. 2d 530, at 531 (9th Cir. 1957); Gutensohn v. Kansas City Southern Rwy. Co., 140 F.2d 950 (8th Cir. 1944). More recently, courts have held that where ......
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Nix v. Nasa Fed. Credit Union
...it would have no standing to seek dismissal of the complaint against its non-moving employees. See, e.g., Mantin v. Broad. Music, Inc., 248 F.2d 530, 531 (9th Cir. 1957) (holding that moving defendants lacked standing to seek dismissal of complaint as to non-moving defendants). Even so, the......