United States v. Broderick

• Decision Date: 13 January 1945
• Docket Number: Civil Action No. 4806.
• Parties: UNITED STATES ex rel. RYAN et al. v. BRODERICK et al.
• Court: U.S. District Court — District of Kansas

59 F. Supp. 189

UNITED STATES ex rel. RYAN et al. v. BRODERICK et al.

Civil Action No. 4806.

District Court, D. Kansas, First Division.

January 13, 1945.

COPYRIGHT MATERIAL OMITTED

Marion D. Waltner and Clarence C. Chilcott, both of Kansas City, Mo., A. J. Herrod, of Kansas City, Kan., Payne Ratner, of Wichita, Kan., and C. W. Prince and Guy W. Runnion, both of Kansas City, Mo., for plaintiff.

W. F. Lilleston, of Wichita, Kan., N. E. Snyder, of Kansas City, Kan., Anthony F. Zarlengo, of Denver, Colo., Howard T. Fleeson, of Wichita, Kan., and Louis R. Gates, of Kansas City, Kan., for defendants.

HUXMAN, Circuit Judge.

All of the defendants in the above entitled action have filed motions, together with supporting affidavits, for summary judgment. The matter was set down for hearing on the 27th day of November, 1944, and plaintiff was notified of such hearing. No counter affidavits were filed by plaintiff and no appearance was made by him at the time of the hearing, either in person or by attorney. The matter was fully presented to the Court by the defendants, through their attorneys, and arguments were made and briefs were filed in support of their contentions. Plaintiff was notified of the request of the defendants to file briefs and given an opportunity to file further briefs in opposition to the motions for summary judgment, but no briefs have been filed.

The entire matter has been given full consideration by the Court. The question is not free from doubt, and, in the view of the Court, the case is a borderline case as to whether the motions for summary judgment should be sustained.

The nature and scope of a motion for summary judgment is not clearly defined or delineated with any degree of exactness. Rule 56, Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, broadens considerably the old procedure for judgment on the pleadings. Numerous cases have considered and discussed Rule 56. No attempt is made here to quote exhaustively from the various decisions, and only such decisions will be referred to as in the view of the Court will clearly present the question we have before us here. In American Ins. Co. v. Gentile Bros. Co., 5 Cir., 109 F.2d 732, 735, the court said:

"Rule 56, 28 U.S.C.A. following section 723c, clearly provides that a summary judgment should only be awarded when the pleadings, depositions, admissions, and affidavits, if any, disclose that except as to the amount of damages there is no genuine issue as to any material fact, and that the moving party is entitled to a judgment as a matter of law. Under this rule a summary judgment should only be given when it is quite clear what the truth is."

In Cohen v. Eleven West 42nd Street, Inc., 2 Cir. 115 F.2d 531, 532, the court said:

"A motion for summary judgment is not a trial; on the contrary it assumes that scrutiny of the facts will disclose that the `issues presented by the pleadings' need not be tried because they are so patently insubstantial as not to be genuine issues at all."

In Engl v. Aetna Life Ins. Co., 2 Cir., 139 F.2d 469, 472, the court said:

"But the history of the development of this procedure shows that it is intended to permit `a party to pierce the allegations of fact in the pleadings and to obtain relief by summary judgment where facts set forth in detail in affidavits, depositions, and admissions on file show that there are no genuine issues of fact to be tried.'"

In Board of Public Instruction for County of Hernando, State of Florida, v. Meredith, 5 Cir., 119 F.2d 712, 713, the court said:

"The intent and purpose of Rule 56 is to promote the prompt disposal of actions in the interest of justice where there is no genuine issue as to any material facts."

In my view, these pronouncements establish the principles which must guide us in determining the sufficiency of these motions. It is quite clear that a motion for summary judgment cannot be made a substitute for a trial either before the court or a jury, and a plaintiff who states a cause of action which entitles him to a trial by jury is entitled to have his case tried in that way, and cannot be compelled to submit his evidence in the form of affidavits in resistance to a motion for summary judgment and have the issues determined thereby. A motion for summary judgment can be effective only when the motion, together with the supporting affidavits, clearly establish that there can be no real issue of fact notwithstanding the allegations of the petition which upon their face state a cause of action. It is in the light of these principles that I consider the problems presented by these motions.

Numerous affidavits have been filed by all the defendants in support of their motions for summary judgment. Some of these affidavits are by the defendants themselves, in which they deny any fraud on their part or intent to defraud or that they entered into a conspiracy. These affidavits are given no consideration by the Court because I do not believe that an affidavit by a defendant in which he merely denies an allegation which makes him liable if true can support the motion for summary judgment, or that it can be said that from such a denial it clearly appears that no controversy is presented notwithstanding the allegations of the complaint. In reaching my conclusions in this matter, I consider only supporting affidavits which set out matters of record which challenge the attention of the Court, especially in view of the fact that no effort is made to controvert them, explain them, or destroy their effect. I am further of the opinion that in considering the question whether the petition states facts from which it can be said that a real controversy exists we must consider the entire setting of this case.

From the records in the case the following appears:

The informer, William V. Ryan, was an employee who worked on the job. He filed his original complaint March 25, 1943. This complaint was wholly insufficient. Various motions were lodged against it by the defendants and were sustained by the Court, and plaintiff was required to prepare a bill of particulars. Judge Richard J. Hopkins, who heard the original motion, in the memorandum opinion set out with particularity the respects in which he thought the petition was insufficient and what plaintiff was required to present. Plaintiff sought to comply with the order of the court, and on June 23, 1943, filed a bill of particulars. Motions were promptly lodged by the defendants to the sufficiency of this bill of particulars, and, after consideration, the trial court again concluded that plaintiff had wholly failed to comply with the order of the Court, with the exception of two items, to-wit, the Chester Ellis item set out in Count 15—1, and an item relating to the alleged waste of lumber, set out in Count 15—2. In passing upon the renewed motions of the defendants to strike, the court again gave plaintiff additional time in which to comply with the orders of the Court in respect to furnishing the bill of particulars. On July 16, 1943, plaintiff filed a pleading denominated Amended and Supplemental Bill of Particulars. Motions were again filed by the defendants to dismiss and to strike. The motions to dismiss for failing to state a conspiracy were again overruled. The motions to make more definite and certain were sustained in many respects and overruled in others. Plaintiffs were required to file a new pleading which would incorporate the required amendments, and it was ordered that such pleading become the only pleading upon which this case would be tried. Plaintiff filed an amended complaint. The motions of the defendants to dismiss and strike were renewed, and were heard by this Court on the 11th day of March, 1944. The motions to dismiss were sustained as to all of the counts except Counts 15—1, 15—2, 15—5, 15—31, 15—34, 15—35, 15—40, 15—51 and 15—52, and were sustained in some particulars as to some of these counts. These are the only counts that remain in the action. Thereafter defendants filed these motions for summary judgment supported by numerous affidavits.

Count 15—1 alleges fraud in the matter of the employment of one Chester A. Ellis. In substance it is alleged that he was employed by the defendants; that after his services were discontinued and while he was no longer rendering any service, the defendants, acting in concert, caused to be made a series of false, fraudulent and fictitious claims in conformity with the successive pay-days based upon the false pretense that he was still employed; that these were presented to the United States Government and were approved and paid; that none of the proceeds of the false and fictitious checks were received by Ellis.

It is significant to note that the count does not specifically charge that the defendants or any of them received the proceeds of these alleged false and spurious checks. In support of the motion for summary judgment, defendants filed the affidavit of E. F. Thomas, which alleges that he was the paymaster for the defendants Lozier, Inc., Broderick & Gordon. He attaches photostatic copies of 11 pay checks which were issued to Chester A. Ellis. The affidavit states that of his own knowledge they were the only 11 checks ever issued to Chester A. Ellis and that the defendants never requested or received further reimbursement for any other amount in connection with the employment of Chester A. Ellis. The charge in Count 15—1 is a fantastic one. It is couched in very general language. It is my view that in the light of this affidavit, with the photostatic copies of the eleven checks attached, and the positive allegations made by the paymaster, there can be no reasonable issue which would establish a cause of action on Count 15—1, notwithstanding the allegations of the complaint.

Count 15—2 in substance alleges that many thousand dollars worth of lumber which had been paid for by the government was ordered destroyed by the defendants in...