United California Bank v. Fadel
| Decision Date | 12 July 1973 |
| Docket Number | No. 71-1374.,71-1374. |
| Citation | 482 F.2d 274 |
| Parties | UNITED CALIFORNIA BANK, a California banking corporation, Plaintiff, v. Robert N. FADEL et al. Robert N. FADEL, Defendant/Cross-Claimant/Cross-Defendant/Appellant, v. The HARTFORD ACCIDENT AND INDEMNITY COMPANY and United States of America, Department of Internal Revenue Service, Defendants/Cross-Defendants/Cross-Claimant (Hartford)/Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Alvin D. McNeil, San Francisco, Cal., Theodore S. Tabah, Encino, Cal., for appellant.
Johnnie M. Walters, Asst. Atty. Gen., Washington, D. C., Richard W. Nichols, Asst. U. S. Atty., Sacramento, Cal., Johnson, Davies, Greve & Clifford, Sacramento, Cal., Milton M. Newmark, Lafayette, Cal., Thomas W. Olson, Jr., Sacramento, Cal., McCormick & Williams, Los Angeles, Cal., John K. Derham, Joseph A. Kiernan, San Francisco, Cal., for appellees.
Before MERRILL, CARTER and CHOY, Circuit Judges.
Fadel appeals from an order dismissing his cross-claim for lack of jurisdiction over the subject matter. We dismiss on another ground.
The principal suit arose when United California Bank brought an interpleader action to determine the ownership of funds in a savings account standing in the name of Robert N. Fadel. Defendants Hartford Insurance Group, United States and Fadel each answered and asserted an interest in the funds. Hartford's claim was based on an assignment from Fadel. The United States asserted a federal tax lien on the funds. Fadel's answer included a cross-claim in which he sought to demonstrate that he was not the taxpayer against whom the United States should proceed to satisfy the lien and that Hartford should be declared liable for the unpaid taxes based on the actions of its agent. Fadel sought a declaration that he was not liable to the United States for unpaid taxes.
Hartford twice sought dismissal of Fadel's cross-claim for lack of subject matter jurisdiction under Rule 13(g). The district judge found that the cross-claim related substantially to the claims of Hartford and the United States to the bank account. Hartford then contended that the district court lacked jurisdiction over the cross-claim since Fadel sought to avoid or challenge a tax assessment without first paying the assessment. The district court granted the motion on the basis of 26 U.S.C. § 7421 which prohibits suits to restrain the assessment or collection of federal taxes.
We must first determine on our own motion whether the dismissal of Fadel's cross-claim is a final judgment which enables us to entertain an appeal. If not, we must dismiss for want of jurisdiction whether or not appellee has moved for dismissal. Atkins, Kroll (Guam), Ltd. v. Cabrera, 277 F.2d 922, 923 (9th Cir. 1960).
Rule 54(b) of the Federal Rules of Civil Procedure provides:
When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim,...
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...Credit doctrine. We grant that the jurisdictional question raised herein appears to be a close one. See United California Bank v. Fadel, 482 F.2d 274, 276 (9th Cir. 1973); Island Service Co. v. Perez, 255 F.2d 559, 560-561 (9th Cir. Nonetheless, after balancing the competing considerations,......
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