Preveden v. Croatian Fraternal Union of America, Civ. No. 9044.
| Decision Date | 26 March 1954 |
| Docket Number | Civ. No. 9044. |
| Citation | 120 F. Supp. 33 |
| Parties | PREVEDEN v. CROATIAN FRATERNAL UNION OF AMERICA et al. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
James L. Bowman, Pittsburgh, Pa., for plaintiff.
Thomas R. Balaban (of Smith, Marion & Balaban), Waynesburg, Pa., for defendants.
This is an action to recover damages for the alleged defamation of plaintiff's reputation by certain articles printed in "Zajednicar," the official newspaper of the corporate defendant. The defendants filed answers to the complaint. The Croatian Fraternal Union of America, hereafter referred to as the Union, set up in its answer seven separate defenses, the last of which asserts that at the time of the publication of the alleged libelous matter and at the time of the filing of his complaint, "the plaintiff was and still is a member of the Croatian Fraternal Union of America" and that one of the bylaws of the Union provides as follows:
"Section 552 No member of the Union, nor his beneficiary or legal representative is authorized to institute or begin any legal proceedings or process against the Union or any of its lodges before exhausting all remedies as provided in the by-laws, such as petitioning and appealing to the bodies designated for this purpose."
The answer further avers that the plaintiff has not exhausted the remedies provided in the bylaws.
Subsequently, in August of 1952, the Union filed a motion for summary judgment pursuant to Rule 56, Fed.Rules Civ.Proc. 28 U.S.C., alleging that there is no genuine issue as to any material fact because the plaintiff has not controverted in any way the above quoted matter.
The motion was argued before the late Judge Stewart, and was under advisement at the time of his death. Counsel have stipulated that this court may decide the motion from the briefs without further oral argument.
The first question to be determined is whether or not the plaintiff was obliged to reply to the answer of the Union. Rule 7, F.R.C.P., provides:
(Emphasis added.)
A reading of the Union's seventh affirmative defense indicates that no counterclaim or cross-claim is asserted; therefore, plaintiff not only was not required to file a responsive pleading, but he could not have done so without leave of court. See Mission Appliance Corporation v. Ajax Thermostatic Controls Co., D.C.N.D.Ohio, E.D.1948, 8 F.R.D. 588; Beckstrom v. Coastwise Line, D.C. Alaska, 1953, 13 F.R.D. 480.
Rule 8(d) provides:
"Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided."
Since no repy to the Union's answer was required or permitted, the allegations contained therein must be taken as denied. Therefore, material issues of fact are presented by the pleadings and preclude an award of summary judgment under Rule 56(c). See Brinich v. Reading Co., D.C.E.D.Pa.1949, 9 F.R.D. 420.
The second question to be determined is whether the factual matters set forth in the affidavit attached to the motion for summary judgment shall be taken as true. It is to be observed that the plaintiff did not file opposing affidavits as provided for in Rule 56. It is our opinion, therefore, that the averments of fact contained in defendant's affidavit accompanying the motion should be taken as true. But notwithstanding, the motion must be denied. The Union's bylaws were made part of the affidavit. The general rule is that the provisions of the constitution and bylaws of a voluntary association become a part of the contract entered into by a member when he...
To continue reading
Request your trial
-
Ratner v. Young
...motion is that such facts are deemed to be admitted. Morrison v. Walker, 9 Cir., 404 F.2d 1046 (1968); Preveden v. Croatian Fraternal Union of America, W.D.P., 120 F.Supp. 33 (1954); Apollo Distributing Co. v. Apollo Imports, Inc., S.D. N.Y., 341 F.Supp. 455 (1972). An oral argument does no......
-
Meyer v. Joint Council 53 Intern. Broth. of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 107
...77 Harv.L.Rev. 770, 771 (1964).24 A similar conclusion was also reached, but for different reasons, in Preveden v. Croatian Fraternal Union, 120 F.Supp. 33 (W.D.Pa.1954). The court there held that a member was not required to exhaust remedies provided by a fraternal union prior to bringing ......
-
National Grange of Order of Patrons of Husbandry v. O'Sullivan Grange, No. 1136
...a paper transaction to create consideration where there was none. The court's finding was not in error.2 Preveden v. Croatian Fraternal Union, 120 F.Supp. 33, 35 (W.D.Pa.1954); Grand Lodge v. Osceola Lodge 18, 178 N.W.2d 362 (Iowa 1970); Building Serv. Employees Int'l Union v. University of......
-
Andersen v. Schulman, 70 C 2938.
...of Puerto Rico, Inc. v. Kaplus, 240 F.Supp. 854 (D.N.J.1965), aff'd 368 F.2d 431 (3rd Cir. 1966); Preveden v. Croatian Fraternal Union of America, 120 F. Supp. 33, 35 (W.D.Pa.1954), except as to any facts which, from our own independent search of the voluminous record, we find to be contrad......