7 F.R.D. 331 | D.D.C. | 1947
On April 7, 1945, the plaintiff instituted this action seeking injunctive relief and the recovery of treble damages under the Emergency Price Control Act of 1942, 50 U.S.C.A.Appendix, § 901 et seq. On June 4, 1945, this Court, acting through Mr. Justice McGuire, granted a preliminary injunction. On March 15, 1946, a dismissal was entered as to the defendant Berry Wright, and on April 11, 1946, an answer was filed on behalf of the defendant Sam Seigel. On April 18, 1947, the defendant Sam Seigel moved for a dismissal of the action upon the ground that the plaintiff Chester Bowles resigned as Administrator of the Office of Price Administration effective February 25, 1946, and was succeeded by Paul A. Porter, who was inducted into office on February 26, 1946, and since then the said Paul A. Porter has resigned, and that at no time since the resig
Rule 25 (d) of the Federal Rules of Civil Procedure is quoted in the margin.
Whatever may have been the occasion for the original act, out of which the subsequent act and the present rule developed, the language employed in said statutes and the rule expressly applies to an action which “may be continued and maintained by * *. * his successor.” It seems clear that, when an officer of the Government institutes an action relating to his duties as such officer, his successor is charged with the responsibility of determining whether or not such action should be continued, and if he so determines, it is his duty to make the showing required by the rule so that he may be substituted and may continue the action, and that, if he does not do so, the action cannot be continued and maintained. Certain decisions which support this view are cited in the margin.
“The rule requires a showing of ‘substantial need’ for continuing and maintaining the action.”
This clearly negatives the contention of opponents of the present motion that no substitution under the rule is necessary for the continuance and maintenance of the action.
The motion to dismiss is granted.
“Rule 25. Substitution of Parties.
“(d) Public Officers; Death or Separation from Office. When an officer of the United States, the District of Columbia, a state, county, city, or other governmental agency, or any other officer specified in the Act of February 13, 1925, c. 229, § 11, 43 Stat. 941, U.S.C., Title 28, § 780 [28 U.S.C.A. § 780], is a party to an action and during its pendency dies, resigns, or otherwise ceases to hold office, the action may be continued and maintained by or against his successor, if within 6 months after the successor takes office it is satisfactorily shown to the court that there is a substantial need for so continuing and maintaining it. Substitution pursuant to this rule may be made when it is shown by supplemental pleading that the successor of an officer adopts or continues or threatens to adopt or continue the action of his predecessor in enforcing a law averred to be in violation of the Constitution of the United States. Before a substitution is made, the party or officer to be affected, unless expressly assenting thereto, shall be given reasonable notice of the application therefor and accorded an opportunity to object.”
Porter, Price Adm’r, OPA, v. Goodwin et al., D.C.W.D.Mo., 68 F.Supp. 949; Black Clawson Co. et al. v. Robertson et al., 63 App.D.C. 236, 71 F.2d 536; Martin v. Coe, 65 App.D.C. 349, 83 F.2d 606; Becker Steel Co. of America v. Hicks et al., D.C.S.D.N.Y., 1 F.Supp. 300; State of Oklahoma ex rel. Vassar, Co. Atty., v. Missouri-Kansas-Texas R. Co., D.C.W.D.Okl., 29 F.Supp. 968; State of Oklahoma ex rel. McVey, Co. Atty., v. Magnolia Petroleum Co. et al., 10 Cir., 114 F.2d 111; State of Oklahoma ex rel. Phillips, Governor of Oklahoma v. American Book Co. et al., 10 Cir., 144 F.2d 585; and Bowles, Price Adm’r v. Ohlhausen, D.C.N.D.Ill., 71 F.Supp. 199.