Manuel outside of the protective scope of his immunity).
Although plaintiff is correct when he refers to the numerous disputed facts in this case, he nevertheless reveals a gross misunderstanding of the standards to be applied by this Court when considering the merits of a motion for summary judgment. The Court need not find "beyond a doubt" that plaintiff can prove no set of facts entitling him to relief before defendant Manuel's motion can succeed. Rather, the proper focus of this Court's concern when considering a party's motion for summary judgment is, of course, whether his opponent has successfully created (usually by way of affidavit) a genuine issue as to a material fact. Rule 56(c) of the Federal Rules of Civil Procedure.
In the instant case, the pivotal factual question is whether all of defendant Manuel's alleged conduct took place within the absolutely protected "legitimate legislative sphere." Hence, plaintiff should survive defendant Manuel's motion for summary judgment only if he has established a genuine factual dispute as to whether defendant Manuel's alleged conduct was entirely of a certain character so as to be entitled to absolute insulation from civil liability as a matter of law.
Plaintiff, in his pleadings, makes allegations which portray defendant Manuel as a malicious and vital participant in an alleged effort to coerce and intimidate him and to do great direct and indirect harm. The Court is of the opinion, however, that most of defendant Manuel's alleged actions toward plaintiff
took place well within the protective scope of his congressional immunity and are therefore not arguably actionable, no matter what motives may have underlay them.
McSurely, supra, at 1036. Hence, the only remaining material facts in the case are those aspects of defendant Manuel's alleged conduct toward plaintiff which are arguably beyond the scope of defendant Manuel's immunity as a congressional investigator. Falling into this material fact category are plaintiff's allegations that defendant Manuel provided plaintiff's true identity to Mr. Lord
and further "offered Lord his full support in collecting the Phelps bill" in furtherance of the alleged conspiracy to threaten and otherwise to harm plaintiff. (Plaintiff's Affidavit, para. 8). The determinative question facing the Court thus becomes: Has plaintiff in his opposition documentation properly placed at issue these material allegations? The Court finds that he has not.
As noted above, plaintiff relies exclusively upon his own affidavit in his opposition to defendant Manuel's motion. In it, he expressly disputes a number of his opponent's factual contentions. Most of these facts, as described above, pertain to aspects of defendant Manuel's alleged conduct which fall within the "legitimate legislative sphere."
The remainder of those facts (specifically, what defendant Manuel told Mr. Lord and whether defendant Manuel conspired with Lord and defendant Phelps to do plaintiff great harm) are the only true material facts in plaintiff's case against defendant Manuel. As to these facts, plaintiff's affidavit reads as follows:
Some time later, I received a telephone call from an individual who identified himself as Mr. Lord and who said he worked for a collection agency that had been retained by Phelps. This individual then said that he had spoken to Manuel; he said that Manuel told him that I was Frank Peroff, that my life would be in jeopardy should my identity and whereabouts be revealed to certain people. Lord said that Manuel had offered Lord his full support in collecting the Phelps bill. Lord said that he was acquainted with several people in international crime syndicates, some of whom he named, and he threatened to call them and tell them where I was unless I paid the Phelps bill. (Plaintiff's Affidavit, para. 8).
This excerpt marks the only place at which plaintiff has attempted properly to create a genuine issue as to a material fact.
Yet this portion of plaintiff's affidavit does not "set forth such facts as would be admissible in evidence" as required by Rule 56(e) of the Federal Rules of Civil Procedure because it is clearly hearsay not admissible under any exception.
Thus, plaintiff has utterly failed to meet his obligation to properly "set forth specific facts showing that there is a genuine issue for trial"
and defendant Manuel is therefore entitled to summary judgment as a matter of law.
Finally, the Court notes that the judgment granted in favor of defendant Manuel herein removes from the case the very party whose presence established federal jurisdiction,
thus presenting the Court with the anomalous situation of considering a suit over which it would not have otherwise had jurisdiction. Although it would appear that a federal court may retain jurisdiction over a properly removed action notwithstanding a subsequent change in parties,
the Court is of the opinion that plaintiff's remaining cause of action as against defendant Phelps should be remanded back to the Superior Court. See Herman Andrae Electrical Co. v. Freiberg, 332 F. Supp. 858, 859 (E.D. Wisc. 1971); see also Martinez v. Seaton, 285 F.2d 587, 589-90 (10th Cir.), cert. denied sub nom. Martinez v. Udall, 366 U.S. 946, 6 L. Ed. 2d 856, 81 S. Ct. 1677 (1961); Pennsylvania Turnpike Comm'n v. McGinnes, 179 F. Supp. 578, 583 (E.D. Pa. 1959).
Oliver Gasch / Judge
Upon consideration of defendant Manuel's motion to dismiss or, in the alternative, for summary judgment, plaintiff's opposition thereto, the argument of counsel in open Court, the entire record herein, and for the reasons set forth in the Court's Memorandum issued this day, it is by the Court this 27th day of October, 1976,
ORDERED that defendant Manuel's motion for summary judgment be, and hereby is, granted; and it is further
ORDERED that the remaining claim as against defendant Phelps be, and hereby is, remanded to the Superior Court of the District of Columbia for further proceedings.
Oliver Gasch / Judge