Pfister v. Arceneaux

• Decision Date: 29 June 1967
• Docket Number: No. 22562.,22562.
• Citation: 376 F.2d 821
• Parties: James H. PFISTER, Appellant, v. Willie P. ARCENEAUX et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

376 F.2d 821 (1966)

James H. PFISTER, Appellant, v. Willie P. ARCENEAUX et al., Appellees.

No. 22562.

United States Court of Appeals Fifth Circuit.

November 14, 1966.

Rehearing Denied June 29, 1967.

C. Ellis Henican, Jr., Henican, James & Cleveland, C. Ellis Henican, New Orleans, La., for appellant.

W. Scott Wilkinson, Shreveport, La., for appellees.

Before BROWN, BURGER,^* and WISDOM, Circuit Judges.

Rehearing Denied June 29, 1967. See 379 F.2d 292.

WISDOM, Circuit Judge:

The complaint filed in this action is a by-product of Dombrowski v. Pfister.¹Dombrowski grew out of two incidents: (1) an investigation of the Southern Conference Educational Fund by the Louisiana Joint Legislative Committee on Un-American Activities; (2) seizure of the Fund's records and papers and the arrest of several of the Fund's officers following the investigation. The complaint alleges that the investigation and the raid were part of a conspiracy to deprive the members of the Fund of their constitutional rights in violation of 42 U.S.C. §§ 1981, 1983, and 1985(3). The plaintiffs ask for preventive relief and damages against a number of defendants, including James H. Pfister, the Chairman of the Joint Committee. Pfister filed a third-party complaint against the other members of the Joint Committee, alleging that they were liable to him for all or part of any sum the plaintiffs might recover from him. His theory of the case is that any of his actions giving rise to liability to the plaintiffs were authorized and approved by the entire committee. Both Pfister, in his answer and in a motion for summary judgment, and the third party defendants, in their motions to dismiss and for a summary judgment, raise the defense of legislative immunity. See United States v. Johnson, 1966, 383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681, 683; Tenney v. Brandhove, 1951, 341 U.S. 367, 71 S. Ct. 783, 95 L.Ed. 1019. The district judge denied Pfister's motion, but granted the third party defendants' motion for summary judgment. This appeal questions only the judgment in favor of the third party defendants.² We reverse.

This case requires that we scrutinize closely the events leading to the summary judgment in favor of the third party defendants. Pfister filed his third party complaint October 1, 1964. December 30, 1964, the third party defendants filed their answer and motion to dismiss, based on the theory of legislative immunity. January 18, 1965, Pfister filed a paper captioned "Opposition * * * to Motions of Third-Party Defendants * * * To Dismiss". The last paragraph of this paper expressly incorporated "in support of said opposition * * * all of the pleadings, affidavits, depositions, judgments, and minute entries heretofore filed in these proceedings". Ten days later, the third party defendants filed a motion for summary judgment and introduced the affidavits of all of the members of the committee. Although the motion set forth no theory on which the committee members were entitled to summary judgment, the affidavits indicate that the theory was, once again, legislative immunity. March 15, 1965, the district judge granted the summary judgment. In his amended "Reasons" the district judge stated:

The affidavits show that the activities of third-party defendants were at all times limited to investigating the activities of plaintiffs and to authorizing the Chairman of the Committee Pfister to turn over to the District Attorney for the Parish of Orleans the evidence heretofore found as a result of such investigations. ¶ There is no evidence by countervailing affidavit or otherwise of participation by any of the third-party defendants in any of the tortious acts alleged by plaintiffs, nor of any knowledge thereof.

While it is true that Pfister filed no opposition to the motion for summary judgment, he did oppose the preliminary motion to dismiss, and in his "Opposition" incorporated all of the affidavits previously introduced in the case. We conclude, therefore, that Pfister's "Opposition" to the motion to dismiss should be treated as a response to the motion for summary judgment. The third party defendants' motion to dismiss was incorporated in their answer, and therefore may not be viewed as a motion under Rule 12(b) of the Federal Rules of Civil Procedure. Rule 12 (b) provides that any defenses presented by motion "shall be made before pleading * * *". The motion must, therefore, be taken as a motion for judgment on the pleadings. In this view, the motion to dismiss assumes a very close relationship to the motion for summary judgment. Rule 12(c) provides that a motion for judgment on the pleadings may be treated as a motion for summary judgment when matters outside the pleadings are introduced. Here the motion for summary judgment set forth no ground upon which it should be granted, but was merely a vehicle for the filing of affidavits to support the motion to dismiss and to convert that motion into a motion for summary judgment under Rule 12(c). Absent the legal terminology, the motion for summary judgment and the motion to dismiss were very nearly the same thing.

Since Pfister had opposed the motion to dismiss when it was originally filed,³ there was no reason for him to renew his opposition when the motion reappeared in the form of a motion for summary judgment. Because he had incorporated all of the preceding affidavits, depositions, judgments, and minute entries in...