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DIOGUARDI v. DURNING
Dioguardi v. Durning, Collector of Customs, Port of New York (2d Cir. Jan. 3, 1944)
Factual and Procedural Background
John Dioguardi, proceeding pro se, sued Harry M. Durning both individually and in his capacity as Collector of Customs at the Port of New York, seeking $5,000 in damages (plus interest and costs) for alleged injury to or loss of imported merchandise and for purported violations of the revenue laws. The merchandise was described as bottles of "tonics" allegedly imported from Italy. Dioguardi alleged he had complied with the revenue laws and that he had sought a refund for merchandise "two-thirds paid in Milano, Italy," which the collector denied. The complaint asserted, among other things, two principal grievances that the court considered: (1) that on the public auction day (October 9, 1940) the collector sold merchandise to another bidder despite the plaintiff's bidding price of $110 (the sale apparently went at $120), and (2) that approximately three weeks before the sale two cases (of 19 bottles each) went missing.
The complaint suggests a prior dispute between plaintiff and his consignor over whether additional payment was due and alleges that the collector had held the goods for about a year—what the opinion describes as "presumably as unclaimed merchandise" under 19 U.S.C.A. § 1491—and then sold the goods (or what remained) at public auction. The District Court granted the Government's motion to dismiss the complaint on the ground that it "fails to state facts sufficient to constitute a cause of action," but allowed plaintiff leave to amend. After plaintiff filed an amended complaint reiterating his claims, the District Court entered a final judgment dismissing the complaint. Plaintiff appealed to the Second Circuit, which reversed and remanded.
Legal Issues Presented
- Whether the pleadings, viewed under the Federal Rules of Civil Procedure (Rule 8(a) and Rule 12(b)), alleged a short and plain statement of a claim showing entitlement to relief such that dismissal on the face of the complaint was improper.
- Whether allegations that the Collector converted or otherwise improperly disposed of goods and sold the remainder in a manner inconsistent with the required public auction can state a claim for personal liability against the Collector (for default or negligence in performance of duties).
- Procedural question whether the District Court's dismissal (and the government's motion) was an appropriate vehicle in light of available alternative procedures (e.g., pre-trial hearing or motion for summary judgment with affidavits).
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Conklin v. Newton, 2d Cir., 34 F.2d 612, 614 | Supports proposition that a customs collector may be held personally liable for a default or negligence in the performance of duties. | Used to show that established authority exists for personal liability of a collector, reinforcing that the plaintiff's allegations could state a cognizable claim. |
| Giles v. Newton, D.C.E.D.N.Y., 21 F.2d 484, 488 | Same general principle: collector's personal liability for default or negligence. | Placed alongside other authorities to show the principle is settled and that the plaintiff's claim should not be dismissed on the pleadings. |
| De Lima v. Bidwell, 182 U.S. 1, 177-180, 21 S.Ct. 743, 45 L.Ed. 1041 | Treats official duties and potential liabilities of customs officers (cited in context of personal liability for improper official action). | Invoked as high authority supporting the proposition that a customs official can be held accountable for actions concerning import duties and disposition of goods. |
| Hammond-Knowlton v. United States, 2d Cir., 121 F.2d 192; cert. denied 314 U.S. 694, 62 S.Ct. 410, 86 L.Ed. 555 | Related authority cited by way of comparison (cf.) regarding official liability or related procedures. | Offered as additional precedent in the same vein—supporting the court's conclusion that established authority permits suits based on collectors' defaults or negligence. |
| United States v. Mitchell, 2d Cir., 137 F.2d 1006, 1010-1011 | Confirms the plaintiff's privilege to decline legal assistance (right to proceed pro se). | Cited to acknowledge plaintiff's right to refuse a lawyer suggested by the court, while the opinion also warns that proceeding without counsel may be unwise in later proceedings. |
Court's Reasoning and Analysis
The Second Circuit reviewed the District Court's dismissal of the complaint for failure to state "facts sufficient to constitute a cause of action." The panel emphasized the governing federal pleading standards: under Rule 8(a) of the Federal Rules of Civil Procedure a complaint need only contain "a short and plain statement of the claim showing that the pleader is entitled to relief" and a Rule 12(b) motion tests whether the complaint states "a claim upon which relief can be granted." The court observed that the District Court did not explain why the pleadings failed to state a claim, and that the Government's submissions to the appellate court consisted only of a conclusory assertion that dismissal was appropriate.
Giving the plaintiff the benefit of reasonable intendments, the court found that the amended complaint, however inartistically drafted, alleged two core claims that could support relief: (1) conversion or improper disposition of two cases of medicinal tonics (i.e., that they disappeared before the sale), and (2) that the remainder was sold in a manner incompatible with the public auction procedures required by statute and Treasury regulations (19 U.S.C.A. § 1491 and the applicable Treasury Regulations / 19 C.F.R. provisions). The court noted that, although the collector may have committed nothing more than an error in failing to collect an additional $10 from the winning bidder, the complaint plausibly alleged that plaintiff was the successful bidder and thus entitled to the goods.
The court also pointed out that the defendant had procedural alternatives to a facial motion to dismiss—such as seeking a pre-trial hearing or moving for summary judgment supported by affidavits—to present the collector's version of facts prior to trial. Absent such a developed factual showing, the Second Circuit concluded that the plaintiff should not be deprived of his opportunity to present his case. In support of allowing the claim to proceed, the court cited established authorities recognizing that a customs collector may be held personally liable for default or negligence in performing official duties.
Finally, the court addressed a practical concern: the plaintiff's limited English and his refusal of legal assistance that the District Court had suggested. While recognizing the plaintiff's right to proceed without counsel (citing United States v. Mitchell), the court warned that proceeding without competent legal assistance could be unwise, especially if future dispositive motions such as summary judgment are forthcoming.
Holding and Implications
Holding: The judgment of the District Court dismissing the complaint is REVERSED, and the case is remanded for further proceedings not inconsistent with the opinion.
Implications:
- The reversal restores the plaintiff's opportunity to litigate his allegations that (a) two cases of merchandise were converted or lost while in the collector's possession and (b) the remaining merchandise was sold in a manner inconsistent with statutory and regulatory auction procedures. The District Court must now permit further proceedings on those claims.
- The court applied and relied upon existing authorities recognizing that a customs collector may be held personally liable for defaults or negligence; it did not purport to create new law but rather found the plaintiff's pleadings sufficient under the Federal Rules to proceed to a factual development of the claims.
- The opinion also advises that, although a pro se plaintiff has the right to decline counsel, the District Court should ensure that the plaintiff's case can be fairly presented—particularly given the plaintiff's limited English—and reminds the parties of appropriate procedural mechanisms (such as summary judgment with supporting affidavits) that may be employed if the facts warrant.
This summary is drawn exclusively from the text of the court's opinion; no additional facts or inferences beyond the opinion have been introduced.
CLARK, Circuit Judge.
In his complaint, obviously home drawn, plaintiff attempts to assert a series of grievances against the Collector of Customs at the Port of New York growing out of his endeavors to import merchandise from Italy "of great value," consisting of bottles of "tonics." We may pass certain of his claims as either inadequate or inadequately stated and consider only these two: (1) that on the auction day, October 9, 1940, when defendant sold the merchandise at "public custom," "he sold my merchandise to another bidder with my price of $110, and not of his price of $120," and (2) "that three weeks before the sale, two cases, of 19 bottles each case, disappeared." Plaintiff does not make wholly clear how these goods came into the collector's hands, since he alleges compliance with the revenue laws; but he does say he made a claim for "refund of merchandise which was two-thirds paid in Milano, Italy," and that the collector denied the claim. These and other circumstances alleged indicate (what, indeed, plaintiff's brief asserts) that his original dispute was with his consignor as to whether anything more was due upon the merchandise, and that the collector, having held it for a year (presumably as unclaimed merchandise under 19 U.S.C.A. § 1491), then sold it, or such part of it as was left, at public auction. For his asserted injuries plaintiff claimed $5,000 damages, together with interest and costs, against the defendant individually and as collector. This complaint was dismissed by the District Court, with leave, however, to plaintiff to amend, on motion of the United States Attorney, appearing for the defendant, on the ground that it "fails to state facts sufficient to constitute a cause of action."
Thereupon plaintiff filed an amended complaint, wherein, with an obviously heightened conviction that he was being unjustly treated, he vigorously reiterates his claims, including those quoted above and now stated as that his "medicinal extracts" were given to the Springdale Distilling Company "with my betting [bidding?] price of $110: and not their price of $120," and "It isnt so easy to do away with two cases with 37 bottles of one quart. Being protected, they can take this chance." An earlier paragraph suggests that defendant had explained the loss of the two cases by "saying that they had leaked, which could never be true in the mauner they were bottled." On defendant's motion for dismissal on the same ground as before, the court made a final judgment dismissing the complaint, and plaintiff now comes to us with increased volubility, if not clarity.
It would seem, however, that he has stated enough to withstand a mere formal motion, directed only to the face of the complaint, and that here is another instance of judicial haste which in the long run makes waste. Under the new rules of civil procedure, there is no pleading requirement of stating "facts sufficient to constitute a cause of action," but only that there be "a short and plain statement of the claim showing that the pleader is entitled to relief," Federal Rules of Civil Procedure, rule 8(a), 28 U.S.C.A. following section 723c; and the motion for dismissal under Rule 12(b) is for failure to state "a claim upon which relief can be granted." The District Court does not state why it concluded that the complaints showed no claim upon which relief could be granted; and the United States Attorney's brief before us does not help us, for it is limited to the prognostication — unfortunately ill founded so far as we are concerned — that "the most cursory examination" of them will show the correctness of the District Court's action.
We think that, however inartistically they may be stated, the plaintiff has disclosed his claims that the collector has converted or otherwise done away with two of his cases of medicinal tonics and has sold the rest in a manner incompatible with the public auction he had announced — and, indeed, required by 19 U.S.C.A. § 1491, above cited, and the Treasury Regulations promulgated under it, formerly 19 C.F.R. § 18.7-18.12, now 19 C.F.R. § 20.5, 8 Fed. Reg. 8407, 8408, June 19, 1943. As to this latter claim, it may be that the collector's only error is a failure to collect an additional ten dollars from the Spring dale Distilling Company; but giving the plaintiff the benefit of reasonable intendments in his allegations (as we must on this motion), the claim appears to be in effect that he was actually the first bidder at the price for which they were sold, and hence was entitled to the merchandise. Of course, defendant did not need to move on the complaint alone; he could have disclosed the facts from his point of view, in advance of a trial if he chose, by asking for a pre-trial hearing or by moving for a summary judgment with supporting affidavits. But, as it stands, we do not see how the plaintiff may properly be deprived of his day in court to show what he obviously so firmly believes and what for present purposes defendant must be taken as admitting. It appears to be well settled that the collector may be held personally for a default or for negligence in the performance of his duties. Conklin v. Newton, 2 Cir., 34 F.2d 612, 614; Giles v. Newton, D.C.E.D.N.Y., 21 F.2d 484, 488; De Lima v. Bidwell, 182 U.S. 1, 177-180, 21 S.Ct. 743, 45 L.Ed. 1041; cf. Hammond-Knowlton v. United States, 2 Cir., 121 F.2d 192, certiorari denied 314 U.S. 694, 62 S.Ct. 410, 86 L.Ed. 555.
On remand, the District Court may find substance in other claims asserted by plaintiff, which include a failure properly to catalogue the items (as the cited Regulations provide), or to allow plaintiff to buy at a discount from the catalogue price just before the auction sale (a claim whose basis is not apparent), and a violation of an agreement to deliver the merchandise to the plaintiff as soon as he paid for it, by stopping the payments. In view of plaintiff's limited ability to write and speak English, it will be difficult for the District Court to arrive at justice unless he consents to receive legal assistance in the presentation of his case. The record indicates that he refused further help from a lawyer suggested by the court, and his brief (which was a recital of facts, rather than an argument of law) shows distrust of a lawyer of standing at this bar. It is the plaintiff's privilege to decline all legal help, United States v. Mitchell, 2 Cir., 137 F.2d 1006, 1010, 1011; but we fear that he will be indeed ill advised to attempt to meet a motion for summary judgment or other similar presentation of the merits without competent advice and assistance.
Judgment is reversed and the action is remanded for further proceedings not inconsistent with this opinion.
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