Western Food Plan, Inc. v. MacFarlane, 77-1343
| Decision Date | 04 December 1978 |
| Docket Number | No. 77-1343,77-1343 |
| Citation | 588 F.2d 778 |
| Parties | WESTERN FOOD PLAN, INC., a Utah Corporation, Plaintiff-Appellant, v. J. D. MacFARLANE, Colorado Attorney General, and D. P. Cronin, Manager of Safety and Ex-Officio Sheriff of the City and County of Denver, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
John M. Cogswell and Phyllis Cox Werkman of Cogswell, Chilson, Dominick & Whitelaw, Denver, Colo., for plaintiff-appellant.
J. D. MacFarlane, Atty. Gen., David W. Robbins, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Mary J. Mullarkey, First Asst. Atty. Gen., Appellate Section, and David K. Rees, Asst. Atty. Gen., Appellate Section, Denver, Colo., for defendants-appellees.
Before DOYLE and LOGAN, Circuit Judges, and STANLEY, * Senior District Judge.
Western Food Plan, Inc. brought an action in the District Court seeking injunctive relief and damages pursuant to 42 U.S.C. § 1983. The complaint alleges that the Attorney General, defendant in the case, filed a consumer action in state court pursuant to C.R.S.1973, § 6-1-101 Et seq. and brought about the issuance of a writ of attachment in that suit against the Micron Corporation, which is a subsidiary or parent, it is not clear which, of Western Food Plan.
The thrust of the § 1983 action by Western Food Plan is that a writ of attachment was issued at the behest of the Attorney General against the assets of Micron Corporation. It is further alleged that Western Food as a successor of Micron has a substantial interest in the Micron Corporation and that it was thus damaged by the action taken. Indeed the Micron Corporation is alleged to have collapsed as a result of the seizure.
The legal theory of the suit here is that attachment in aid of suit which resulted from the seizure of the assets was invalid in that the rule under which it was issued, namely 102 of the Colorado Rules of Civil Procedure, is in procedure and substance in conflict with the Fourth and Fourteenth Amendments both on its face and as applied. These assets were described in some detail in the complaint.
It is alleged that the damages suffered were not less than $100,000 and not more than $4 million. The prayer seeks adjudication that the writ of attachment issued by the District Court violated the plaintiff's constitutional rights and was void. The basic question presented to the District Court was whether the attachment in aid of suit, which was granted pursuant to Colorado Rule of Civil Procedure 102 violated the Constitution.
The trial court did not determine the merits of the case. Instead on motion of the Attorney General the court abstained and did so on the basis that proceedings were then pending in the Colorado District Court and that these were capable of disposing of the action.
The court said:
It is apparent that this action in this court is a collateral attack on the pending state court proceedings. Under the principle of comity recognized in Younger v. Harris, 401 U.S. 37 (, 91 S.Ct. 746, 27 L.Ed.2d 669) (1971); Huffman v. Pursue, Ltd., 420 U.S. 592 (, 95 S.Ct. 1200, 43 L.Ed.2d 482) (1975); and Juidice v. Vail, 45 U.S.L.W. 4269 (U.S. Mar. 22, 1977) (430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977)), this court must abstain from interference with the state litigation.
The court thereafter dismissed the suit.
The sole issue which is here presented is whether the court was correct in its determination that it was required to abstain. Our conclusion is that the cause must be remanded, not because the trial court abstained, but because it dismissed the lawsuit as well.
In the state action filed by the Attorney General, pursuant to the Colorado Consumer Protection Act, C.R.S.1973, § 6-1-101 Et seq., Western Food Plan, Inc., the plaintiff-appellant herein, was not originally named. Listed as defendants were a number of corporations, including the Micron Corporation, Supreme Food Corporation, Supreme Food Distributors and Supreme Food of Utah Corporation, together with Talon Corporation, a Colorado corporation. However, in that suit Western Food intervened and filed a counterclaim which alleged Inter alia that on August 4, 1976, Micron Corporation was in default on a $3 million line of credit which had been issued by F.N.B. Financial Company, an affiliate of the First National Bank of Boston. Hussel, the major stockholder of Micron, purchased the note from F.N.B. for full value. Thereupon, on or about August 4, 1976, Hussel took possession of the assets of Micron Corporation and transferred the same to Western, the plaintiff-appellant, a newly formed Utah corporation.
The allegation is that Western was formed in order to carry out the objects of the Micron business. It sought to get the Attorney General's permission to do so, but the Attorney General filed its action in the Denver District Court on August 13, 1976, for the issuance of writs of attachment.
Western's complaint in intervention alleges that the writ of attachment is void for various reasons, one of which is that the writ of attachment violates the Colorado Constitution as well as the United States Constitution. Damages are claimed in the amount of not less than $100,000 and not more than $4 million.
The § 1983 suit, which is described in the first amended complaint of Western Food Plan, Inc., is substantially similar to the complaint in intervention that was filed in the district court. Many of the allegations are identical in fact. The center of attack in the § 1983 suit is the obtaining of the writ of attachment in state court. The contention is that this writ of attachment constituted a substantial cause of the damages that were complained of in the other suit also. The amount in this instance is, however, $3.9 million instead of $3 million.
We have not examined each of the several claims for relief contained in the § 1983 complaint, but we are nevertheless convinced that the thrust of each of these actions is quite similar, and with that in mind we consider the abstention issue.
The leading case on the type of abstention which applies when litigation is being conducted or is about to be commenced both in federal and state court is Railroad Comm'n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). There the Texas Railroad Commission had ordered that no...
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