OVE GUSTAVSSON CONTRACTING COMPANY v. Floete, Civ. No. 19931.

• Decision Date: 10 September 1959
• Docket Number: Civ. No. 19931.
• Parties: OVE GUSTAVSSON CONTRACTING COMPANY, Inc., Plaintiff, v. Franklin G. FLOETE, as Administrator of General Services Administration, Michael Brennan, individually and as Contracting Officer of General Services Administration, and William A. Boyd, Defendants.
• Court: U.S. District Court — Eastern District of New York

176 F. Supp. 841

OVE GUSTAVSSON CONTRACTING COMPANY, Inc., Plaintiff, v. Franklin G. FLOETE, as Administrator of General Services Administration, Michael Brennan, individually and as Contracting Officer of General Services Administration, and William A. Boyd, Defendants.

Civ. No. 19931.

United States District Court E. D. New York.

September 10, 1959.

Anthony B. Cataldo, New York City, for plaintiff.

Cornelius W. Wickersham, Jr., U. S. Atty., Brooklyn, N. Y., for defendants. Myron Beldock, Asst. U. S. Atty., Brooklyn, N. Y., of counsel.

ZAVATT, District Judge.

The plaintiff moves for an order remanding this cause to the Supreme Court of the State of New York, County of Queens. The named defendants herein are Franklin G. Floete, Administrator of the General Services Administrator of the United States, and Michael Brennan and William A. Boyd, Chief and Assistant Chief, respectively, of the Design and Construction Division, Public Buildings Service, Region 2, of the aforesaid agency.

The complaint sets forth two causes of action. The first, against Floete and Brennan in their representative capacities, is that Brennan arbitrarily and capriciously terminated a construction contract which had been 80% performed by the plaintiff; that plaintiff demanded of said defendants that the termination be annulled and that they arbitrarily refused to permit resumption of the contract by the plaintiff; that the said defendants acted outside the scope of their powers, and that their actions were fraudulent or so grossly erroneous as to imply bad faith; and that plaintiff is entitled to bring this action for review of said acts of the defendants. Under its first cause of action the plaintiff seeks judgment declaring that the acts of Floete and Brennan are unlawful and violative of the rights of the plaintiff; ascertaining the amount of the plaintiff's damages; directing the said defendants to authorize and direct the proper official of the United States Government to pay so much of the damages as will be determined to be due and payable by the United States; and directing that the balance of said damages be paid by the defendants personally.

The second cause of action, against Brennan and Boyd individually, alleges in essence that said defendants "with intent to harm and injure the plaintiff, knowingly, intentionally and wilfully made untruthful reports concerning the performance of the contract by the plaintiff and by reason of the said untruthful reports they caused the said contract to be cancelled." It is alleged that Brennan and Boyd acted maliciously, knowing full well that plaintiff would be injured. As to this cause of action damages are sought against Brennan and Boyd individually.

The action was removed to this Court pursuant to 28 U.S.C.A. § 1442(a) providing:

"A civil action or criminal prosecution commenced in a State court against any of the following persons may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:

"(1) Any officer of the United States or any agency thereof, or person acting under him, for any act under color of such office * *."

The motion to remand is grounded upon the alleged fact that previously Judge Cashin of the United States District Court for the Southern District of New York, 176 F.Supp. 544, entered an order in an original action similar to the one at bar dismissing said action because the Federal court lacked jurisdiction. Examination of Judge Cashin's decision reveals that that action was brought against Floete and Brennan and embraced the claim set forth in the first cause of action herein. It was found that Floete was an indispensable party and that as to him the venue in the Southern District of New York was improper. Judge Cashin found that there was no jurisdiction as to Brennan if he was being sued as an individual for illegal acts, inasmuch as the requisite diversity of citizenship was not shown.

In the instant case defendants Brennan and Boyd alone were served in the State court action and together joined in the petition for removal. If the question now before the Court...