Roslindale Cooperative Bank v. Carol S. Greenwald, 638 F.2d 258, 1st Cir. (1981)
Roslindale Cooperative Bank v. Carol S. Greenwald, 638 F.2d 258, 1st Cir. (1981)
Roslindale Cooperative Bank v. Carol S. Greenwald, 638 F.2d 258, 1st Cir. (1981)
2d 258
The Bank purportedly, and its president Albert Tobin, 2 brought an action in the
state court promptly after the certification. The Bank's claim was dismissed
without prejudice on the ground that neither its attorney3 nor its president was
authorized, as required by Massachusetts law, to bring the suit on its behalf.
Tobin's individual claim was dismissed because he had not exhausted available
administrative remedies. The Supreme Judicial Court affirmed in a rescript
opinion. Tobin v. Commissioner of Banks, --- Mass. ---, 386 N.E.2d 1246. So
far as appears, neither the Bank nor Tobin proceeded further in the state court.
On January 11, 1978 the Bank and eleven of its directors filed the present
action under 42 U.S.C. 1983, seeking injunctive relief and damages. After
allowing several amendments, chiefly to reflect the developments in the
removal proceedings, the court dismissed the complaint for failure to state a
claim, except for a count brought by the four removed directors. 481 F.Supp.
749. In due course this latter count was dismissed on summary judgment. Both
actions were correct.
Plaintiffs have done much to complicate a basically simple case. The five
volume Appendix contains almost two dozen of their motions and slightly more
affidavits. Their brief on appeal cites over ninety cases, over thirty
Massachusetts statutes, and a substantial number of federal statutes and rules.
Their contentions are equally diverse. Some are merely irrelevant.4 Some are
indecipherable.5 Even most charitably, some we can only describe as silly.6
Most consist simply of conclusory and unsubstantiated allegations. With so
much space and attention given to such matters, even a court with unlimited
time and patience would run a serious risk of being distracted from a party's
good points, if any there were. In fact we hope not for that reason we find none.
Nor can the individual plaintiffs complain of the removal procedure under
chapter 167 5. That section provides for notice and a reasonable opportunity
to be heard prior to removal,7 with post-termination review by the statutory
11
Finally, we are surprised, in the light of the evidence, that plaintiffs could think
they had legitimate complaints against the Commissioner's findings of
mismanagement, self-dealing and illegality. The affidavits of Albert Tobin, to
the extent that they purport to bear on the issues, are merely conclusory
reiterations of the allegations of the complaint, and even at that are often not
made on personal knowledge. They are insufficient. F.R.Civ.P. 56(e). Plaintiffs
have failed to show the existence of any genuine issue for trial, and summary
judgment was rightly entered.9
12
Affirmed.
The board consisted of designees of the state treasurer, the attorney general, and
the commission of corporations and taxation, as required by the statute
Tobin was one of the four later removed as officers and directors
Robert Tobin, Albert's brother and another of the directors later removed
E. g., the observation that "Jailers have also been found liable under 42 U.S.C.
1983."
E. g., that "M.G.L. c. 170 Sec. 4 and 5, is unconstitutional due to the conflict of
interest of its members who have a paramount self-interest and are not impartial
as they are subject to the Commissioner in their paramount interest, their other
bank."
E. g., that defendants "have secretly communicated with each other about
plaintiffs' affairs," and, by way of elaboration, that defendants "conspired ... to
gather evidence against the plaintiffs ... causing a report to be prepared
containing evidence to be used against the plaintiffs." We may wonder how
defendants, who include the Commissioner and Deputy Commissioner of
Banks, the officers of Central Bank, the State Treasurer, and the Attorney
General, are expected to conduct their affairs, let alone defend this lawsuit
brought against them jointly
We have recently indicated that, as in the case of certification, even a posttermination hearing, if prompt, would be sufficient. Rodriguez de Quinonez v.
Perez, 1 Cir., 1979, 596 F.2d 486, 490-91, cert. denied, 444 U.S. 840, 100 S.Ct.
78, 62 L.Ed.2d 51
We are aware that plaintiffs have sought to raise a number of other points. They
require no discussion