United States v. State of Tennessee

• Decision Date: 20 October 1947
• Docket Number: Civ. No. 922.
• Citation: 74 F. Supp. 635
• Parties: UNITED STATES ex rel. SHINN v. STATE OF TENNESSEE et al.
• Court: U.S. District Court — Eastern District of Tennessee

74 F. Supp. 635

UNITED STATES ex rel. SHINN v. STATE OF TENNESSEE et al.

Civ. No. 922.

District Court, E. D. Tennessee, N. D.

October 20, 1947.

James J. Laughlin and Charles H. Flasphaler, both of Washington, D. C., and Quentin Householder and Ben Kohler, Jr., both of Knoxville, Tenn., for plaintiff.

Roy H. Beeler and William W. Berry, both of Nashville, Tenn., for State of Tennessee.

William Waller, of Nashville, Tenn., for Standard Oil Co.

William Hume, of Nashville, Tenn., for Gulf Refining Co.

TAYLOR, District Judge.

This is an action under the federal informer statute, 31 U.S.C.A. §§ 231-235, commenced by Frederick W. Shinn, the qui tam plaintiff, against the State of Tennessee, Standard Oil Company of New Jersey, Gulf Oil Corporation, Gulf Refining Company, and Standard Oil Company of Louisiana, the complaint charging the defendants with conspiracy to present false claims to the Treasurer of the United States and with presentation of such false claims by each of them, knowing them to be false and fraudulent, and by means of which the defendants have received from the Treasury of the United States the sum of approximately $512,887.70, the medium of the alleged fraud being the sale with state tax attached of gasoline and motor fuel to the Armed Forces of the United States located in the State of Tennessee from October 1, 1943, through October 31, 1944. Plaintiff asks for judgment for $2,000 penalty, for attorney fees, and for double the amount of damages sustained by the United States of America by reason of the alleged fraudulent claims, the total amount demanded being over one million dollars.

The State of Tennessee has appeared specially and moved that the suit be dismissed as to it, on the grounds that it has not consented to be sued, that the State cannot be sued by a private individual without its permission, that if the suit is by the United States the venue is in the Supreme Court, and that the informer statute is not applicable to a sovereign state.

Gulf Oil Corporation has appeared specially and moved that the summons purportedly served upon it be quashed and the suit dismissed as to it, on the ground that it is a foreign corporation, is not doing business in Tennessee, and the person on whom process was served is not an employee or agent of Gulf Oil Corporation and was not authorized to accept service on its behalf.

Standard Oil Company of New Jersey, with which it claims that Standard Oil Company of Louisiana has merged, has filed a motion for more definite statement, or for bill of particulars, and for temporary stay of proceedings, and a similar motion has been filed by Gulf Refining Company.

Other than a hearing March 18, 1947, no action has been taken by the Court on these motions. In the course of that hearing, attention of the Court was called to non-compliance by complainant with certain requirements of the statute, whereupon an order requiring compliance was entered March 24, 1947. The relevant portion of that order is as follows: "And it appearing to the Court, upon inquiry of counsel present, that the qui tam plaintiff had not served upon the United States Attorney for the Eastern District of Tennessee a copy of the bill of complaint and that there was a question as to whether or not the qui tam plaintiff had sent the Attorney-General of the United States a disclosure in writing of substantially all evidence and information in his possession material to the effective prosecution of the suit, as required by statute in cases brought by informers, it is accordingly ordered by the Court that, within thirty days from March 18, 1947, the qui tam plaintiff file evidence of compliance with said statutory requirements, and that otherwise the Court will entertain a motion to dismiss this suit, for failure to fulfill said requirements; and it is further ordered that unless and until otherwise ordered by the Court, all other and further proceedings be and are hereby stayed until the United States has entered appearance or declined in writing to enter appearance in this suit, or if it does neither, then until the expiration of a period of sixty days following the date on which the qui tam plaintiff files evidence of his compliance with the aforesaid statutory requirements."

To date no evidence of compliance has been filed, as required by the quoted portion of the Court's order, and the United States has not intervened. More than 200 days have elapsed since the order was entered, and the record leaves the Court unadvised as to whether the required disclosure of evidence has been made, and also as to what action, if any, may be expected of the United States as to intervention. Circumstances raise the inquiry as to whether the Court should entertain its own motion to dismiss the case.

Failure to prosecute a cause with diligence is a well recognized ground for dismissal. Colorado Eastern Ry. Co. v. Union Pac. Ry. Co., 8 Cir., 94 F. 312; Hicks v. Bekins Moving & Storage Co., 9 Cir., 115 F.2d 406; Zielinski v. United States, 2 Cir., 120 F.2d 792, 793. In the last cited case, the court referred to a local Rule of Court which required notice to plaintiff before dismissal, and commented, "The necessity of notice in Rule 8 of the District Court Rules is a self-imposed judicial limitation. The court otherwise has inherent power to dismiss a cause for lack of prosecution without notice. Cage v. Cage, 5 Cir., 74 F.2d 377, 378; Des Moines Union R. Co. v. District Court of Polk County, 170 Iowa 568, 153 N.W. 217."

Authorities are cited at length in the case of Hicks v. Bekins Moving & Storage Co., supra, from which the following informative quotation is taken 115 F.2d 408: "Mr. George Longsdorf, in his Cyclopedia of Federal Procedure, vol. 5, § 1506, p. 80, says that: `It is the settled rule in the federal courts that an action at law may be dismissed for want of prosecution or other delay fatal to the continuance of the action. Dismissal on such ground is discretionary with the courts, and within their inherent power, independent of statute or rule. In many of the districts, however, the matter is regulated by local rules, or general or standing orders applying to all cases in which no action has been taken for a specified period.' The same thought is expressed in 18 C.J. § 110, pp. 1191, 1192; and in 17 Am.Jur. § 57, p. 88. Blackstone recognized the right of a court to enter a non-prosequitur in the event of failure of the plaintiff to prosecute his action (Blackstone Comm., Book III, ch. 20, p. 296, ch. 27, p. 451), as does Black on Judgments, 2d Ed., vol. II, Sec. 702, p. 1057, and Freeman on Judgments, 5th Ed., vol. 1, § 9, p. 16, vol. 2, § 9, p. 16, vol. 2, § 751, p. 1579."

Referring to a Rule of Court of the District Court of the United States for the District of Colorado which provided for dismissal for want of prosecution, the court further said in the Hicks case, "An appeal followed, and the Circuit Court of Appeals for the Eighth Circuit said: `This is a very proper rule, but in the absence of such a rule, every court has the power to dismiss a cause for want of prosecution....