Myers v. Cromwell

• Decision Date: 17 March 1967
• Docket Number: No. T-3930.,T-3930.
• Citation: 267 F. Supp. 12
• Parties: Francis W. MYERS and Velma Myers, his wife, Plaintiffs, v. Jay CROMWELL et al., Defendants.
• Court: U.S. District Court — District of Kansas

267 F. Supp. 12

Francis W. MYERS and Velma Myers, his wife, Plaintiffs, v. Jay CROMWELL et al., Defendants.

No. T-3930.

United States District Court D. Kansas.

March 17, 1967.

Norton & Norton, Salina, Kan., Klaas & Welliever, Phoenix, Ariz., Kenneth Peery, Concordia, Kan., for plaintiffs.

Newell A. George, U. S. Atty., Elmer Hoge, Asst. U. S. Atty., Topeka, Kan., for defendants.

MEMORANDUM OF DECISION

TEMPLAR, District Judge.

Plaintiffs here as owners of tracts of land in Lincoln County, Kansas undertook to participate in the Feed Grain and Wheat Stabilization and Wheat Diversion Programs carried on by the United States Department of Agriculture.

Final payments under the 1965 Feed Grain Program, the 1965 Wheat Diversion Program and the Farm Wheat Certificate Program were not made and because information came to the attention of the Lincoln A S C County Committee that a tenant was cash renting a portion of one of plaintiffs' farms, defendant Cromwell, the County Office Manager for the Committee was directed to write plaintiffs the following letter, dated June 11, 1965:

"The ASC County Committee would like to visit with you concerning the 1965 Wheat and Feed Grain agreements on Farm No. M-112.

It has come to their attention that there is a tenant on this farm and that the presently filed wheat and feed grain agreements for the farm do not take this into account.

Instructions for payment by this office for wheat certificates and feed grain price support payments explicitly state that such payments shall be divided among those persons who receive the crop. It appears that there is a misunderstanding or a misrepresentation with respect to the factors involved with this farm and those programs. Will you please arrange to meet with the county committee on June 25, 1965, at 9:00 AM or arrange for a later meeting date if that time is not convenient. It would be desirable if your tenant were also represented at this meeting. Your attention to this matter will be appreciated."

Plaintiffs thereafter, on November 22, 1965, filed an action against Cromwell for damages in which they alleged that:

"II. That on or about the 11 day of June, 1965, and on several occasions both prior and subsequent thereto, the Defendant JAY CROMWELL, and others, have maliciously spoken and written, to and in the presence of persons other than the Plaintiffs, certain false and defamatory statements concerning the Plaintiffs herein, towit; that the Plaintiffs have in the past made certain false and untrue `misrepresentations' to the United States Department of Agriculture concerning certain crop land, farm practices, and farm program participation.

"III. That by the use and publication of said words and statements, the Defendants herein meant, intended to charge, and to be understood as charging that the Plaintiffs had been and were guilty of certain dishonorable and dishonest business practices."

Depositions of the parties have been taken, affidavits have been placed in the record by the defendant and the Court has heard the arguments and statements of counsel and has reviewed the briefs and written arguments filed by the defendant. No briefs or affidavits were filed by plaintiffs.

Defendant Cromwell has filed a motion to dismiss, or in the alternative for a summary judgment under Rule 56. Defendant has urged the Court to consider in determining the motion, the pleadings, the affidavits and the depositions of plaintiffs.

The Court will consider this case under the motion for summary judgment, and such motion may be filed at any time before trial and may be considered by the Court if its consideration can be determinative of the issues in the case. The Court is not limited when ruling on a motion for summary judgment to the bare pleadings on file, but in addition to the pleadings the Court may consider affidavits, admissions made in depositions in order to determine whether there is any genuine issue as to any material fact and whether the moving party is entitled to judgment as a matter of law. In considering the record under the Rule and its application an adverse party may not rest its case upon the mere allegations or denials in the pleadings, but their response, by affidavits or otherwise must set forth specific facts showing that there is a genuine issue for trial. In this case the plaintiffs have filed no affidavits and have submitted no briefs or written arguments.

Rule 56(c) directs that the judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material facts and that the moving party is entitled to judgment as a matter of law. A defendant need not file answer to raise the issue of whether or not, in any event, the plaintiff is entitled to recover. If the Court determines under Rule 56(c) that plaintiffs under the facts stated in...