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59 F.R.D. 558

Hellermann v. Romney

U.S. District Court

Decided January 30, 1973

U.S. District Court · decided 1973-01-30

Cited by 1 later decisions — most recently July 1975

1 federal appellate ·

Key passage — most relied on by later courts

“It is specifically provided that the Administrator in his official capacity may “sue and be sued in any court of competent jurisdiction, State or Federal”. It could hardly have been intended by Congress that suits for over $10,000 against the Administrator could be brought in any state court of general jurisdiction, but in the federal jurisdiction only in the Court of Claims; and as we read recent decisions of the Supreme Court the jurisdiction of a United States District Court to entertain a suit against governmental agencies and corporations is not limited by the provisions of the Tucker Act”

quoted by 1 later decision, including Mar v. Kleppe

Applies 12 U.S.C. § 1702 · 28 U.S.C. § 1346 (Federal Tort Claims Act) · 28 U.S.C. § 41

Relies on Federal Housing Administration, Region No. 4 v. Burr · Keifer v. Reconstruction Finance Corp. · Union Nat. Bank v. McDonald

Good law ✅— No negative treatment on recordhow we know

Decided 1973-01-30

View the full empirical analysis of this case →

¶1DECISION and ORDER

MYRON L. GORDON, District Judge.

¶2The defendants have moved to dismiss the complaint on the ground that the court lacks jurisdiction over the subject matter.

¶3The complaint is one which seeks damages and also other relief because of the arbitrary refusal of the defendants to approve rental charges for the premises in which the plaintiff claims a life interest. Annexed to the complaint is a contract between the parties which, according to the plaintiff, obligated the defendants to establish rentals and to recompute terms of the mortgage. Monetary damages in excess of $49,000 are demanded by the plaintiff.

¶4The complaint refers to 28 U.S.C. § 1346(a)(2), which confers jurisdiction in the United States district courts as to certain claims involving less than $10,-000; since a greater sum is demanded, and since no other ground for jurisdiction is affirmatively set forth in the complaint, the defendants conclude that there is an absence of subject matter jurisdiction.

¶5Although it is not referred to in the complaint, 12 U.S.C. § 1702 authorizes the secretary of the department of housing and urban development “to sue and be sued in any court of competent jurisdiction, State or Federal.” In Union National Bank v. McDonald, 36 F.Supp. 46, 48, the court stated as follows:

“Whatever may have been the law under former decisions, the recent cases of Keifer & Keifer v. Reconstruction Finance Corporation, February 27, 1939, 306 U.S. 381, 59 S.Ct. 516, 83 L.Ed. 784, and Federal Housing Administration v. Burr, February 12, 1940, 309 U.S. 242, 60 S.Ct. 488, 84 L.Ed. 724, seem to settle this question. The inescapable conclusion from reading these opinions is that a suit against the Federal Housing Administrator, in his official capacity, in a Federal District Court is not limited to $10,000 under the Court of Claims Act. 28 U.S.C.A. § 41(20).”

¶6The defendants suggest that plaintiff’s reliance on § 1702 is misplaced because the section is not expressly cited in the complaint. While Rule 8(a)(1), Federal Rules of Civil Procedure, contemplates the specification of the grounds for jurisdiction in the complaint, it would seem inappropriate for the court to order dismissal where recitation of the statutory section would unquestionably be permitted as an amendment of the complaint.

¶7The court concludes that it has jurisdiction of the subject matter in this action and, accordingly, should not grant the defendants’ motion to dismiss.

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