T & W Inv. Co., Inc. v. Kurtz, 77-1611
| Citation | 588 F.2d 801 |
| Decision Date | 18 December 1978 |
| Docket Number | No. 77-1611,77-1611 |
| Parties | T & W INVESTMENT COMPANY, INC., an Oklahoma Corporation, Plaintiff-Appellant, v. Thomas KURTZ, Defendant-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
David H. Sanders and Philip McGowan of Sanders, McElroy & Carpenter and Gerard K. Donovan of Donovan, Freese & March, Tulsa, Okl., for plaintiff-appellant.
Sidney G. Dunagan of Gable, Gotwals, Rubin, Fox, Johnson & Baker, Tulsa, Okl., for defendant-appellee.
Before HOLLOWAY, DOYLE and LOGAN, Circuit Judges.
This appeal arises out of a civil action brought by T & W Investment Company, Inc. (T & W) against Thomas Kurtz (Kurtz) under 42 U.S.C. § 1983. Kurtz was a receiver appointed by an Oklahoma state court for T & W and a related corporation, Tulsa Whisenhunt Funeral Home, Inc. (Tulsa Whisenhunt). The allegations were that Kurtz, acting as receiver of the corporations under color of state law, took T & W's property without due process, without just compensation, and in violation of its rights to equal protection. The specific complaint was that certain items of tangible personal property (automobiles, furniture and furnishings) owned by T & W were sold by Kurtz in his capacity as receiver of Tulsa Whisenhunt, and in that same receiver capacity Kurtz arbitrarily refused to authorize Tulsa Whisenhunt to pay rentals on buildings and vehicles owed to T & W.
The trial judge granted summary judgment in favor of Kurtz on grounds that as receiver he was immune from suit under the Civil Rights Act. It also found that the rights of T & W to these assets had been adjudicated in the state court and was Res judicata, and declared that a federal court should not interfere with a state court's receivership proceedings. From this judgment T & W appealed.
We treat only the immunity question as that is enough to dispose of this case.
It is well established that judges and court officials are immune from suit under § 1983 for acts performed in their official capacities, even if they are accused of acting maliciously and corruptly. Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978); Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). The courts that have considered the matter have held that a receiver is a court officer who shares the judge's immunity, at least if he is carrying out the orders of his appointing judge. See Kermit Constr. Corp. v. Banco Credito y Ahorro Ponceno, 547 F.2d 1, 3 (1st Cir. 1976):
At the least, a receiver who faithfully and carefully carries out the orders of his appointing judge must share the judge's absolute immunity. To deny him this immunity would seriously encroach on the judicial immunity already recognized by the Supreme Court. Pierson v. Ray, supra. It would make the receiver a lightning rod for harassing litigation aimed at judicial orders. In addition to the unfairness of sparing the judge who gives an order while punishing the receiver who obeys it, a fear of bringing down litigation on the receiver might color a court's judgment in some cases; and if the court ignores the danger of harassing suits, tensions between receiver and judge seem inevitable. Other federal courts have reached a similar conclusion.
Accord, Bradford Audio Corp. v. Pious, 392 F.2d 67 (2d Cir. 1968); Brewer v. Hill, 453 F.Supp. 67 (N.D.Tex.1978); Smallwood v. United States, 358 F.Supp. 398 (E.D.Mo.), Aff'd without opinion, 486 F.2d 1407 (8th Cir. 1973); Drexler v. Walters, 290 F.Supp. 150 (D.Minn.1968).
T & W attempts to take this case out of that line of authorities by saying that the receiver here was not acting in accordance with and under the protection of a court order. Cf. City Partners, Ltd. v. Jamaica Sav. Bank, 454 F.Supp. 1269 (E.D.N.Y.1978). This is based upon the charge that the assets of T & W which were sold by Kurtz, and his failure to pay rents due to T & W, were in his capacity as receiver for Tulsa Whisenhunt. We do not agree.
Kurtz was appointed receiver for Tulsa...
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