Kohen v. Crocker Company

33 Citing cases

  1. Cableview Commc'ns of Jacksonville, Inc. v. Time Warner Cable Se., LLC

    901 F.3d 1294 (11th Cir. 2018)   Cited 4 times

    Duress "cannot be predicated upon a demand which is lawful, upon doing or threatening to do that which a party has a legal right to do." Spillers v. Five Points Guar. Bank , 335 So.2d 851, 853 (Fla. 1st Dist. Ct. App. 1976) (quoting Kohen v. H.S. Crocker Co. , 260 F.2d 790, 792 (5th Cir. 1958) ). Cableview does not dispute that Time Warner had the legal right to withhold its consent to assignment of the Installation Agreement. Nor does Cableview dispute that Time Warner could have simply refused to give its consent without explanation. Cableview argues that it was nevertheless wrongful for Time Warner to threaten to withhold its consent unless Cableview agreed to pay the indemnity claim.

  2. Haynesworth v. Miller

    820 F.2d 1245 (D.C. Cir. 1987)   Cited 372 times
    Holding that high level public officials are not employers of their subordinates; rather, they are fellow government servants, and cannot be held liable on the basis of respondeat superior

    On Rule 12(b)(6) motions, see, e.g., Pauling v. McElroy, 107 U.S.App.D.C. 372, 373-374, 278 F.2d 252, 253-254, cert. denied, 364 U.S. 835, 81 S.Ct. 61, 5 L.Ed.2d 60 (1960); Homan Mfg. Co. v. Russo, 233 F.2d 547, 550 (7th Cir. 1956); Ryan v. Scoggin, 245 F.2d 54, 57 (10th Cir. 1957). On Rule 12(c) motions, see, e.g., Kohen v. H.S. Crocker Co., 260 F.2d 790, 792 (5th Cir. 1958); Hargis Canneries, Inc. v. United States, 60 F.Supp. 729 (D.Ark. 1945). Conversely, a trial court should not grant either kind of motion simply because it is dubious of the plaintiff's ability to prove the allegations of the complaint at trial.

  3. Jurgensen v. Fairfax County

    745 F.2d 868 (4th Cir. 1984)   Cited 130 times   1 Legal Analyses
    Holding that a civil rights plaintiff's first amendment activity was not the "but for" cause of his dismissal, where he released official records to the press in violation of municipal regulations

    As the Court put it in the case of Jamestown Farmers Elevator, Inc. v. General Mills, 552 F.2d 1285, 1290 (8th Cir. 1977), the circumstances asserted by a party as a premise for a finding of duress must be "the result of wrongful coercive acts of the other party." This same rule was stated in Chouinard v. Chouinard, 568 F.2d 430, 434-35 (5th Cir. 1978); Johnson, Drake Piper, Inc. v. United States, 531 F.2d 1037, 1042 (Ct.Cl. 1976) (the plea of duress is not permissible "where the defendant was not responsible for the conditions"); Kohen v. H.S. Crocker Company, 260 F.2d 790, 792 (5th Cir. 1958); Business Incentives Co., Inc. v. Sony Corp. of America, 397 F. Supp. 63, 69 (S.D.N.Y. 1975) ("the alleged duress must be proven to have been the result of defendant's conduct and not of the plaintiff's own necessities"). Certainly it cannot be said that the defendants were in any way "responsible" for Jurgensen's "domestic" problems or his financial difficulties.

  4. Coral Gables Imported Motorcars, Inc. v. Fiat Motors of North America, Inc.

    673 F.2d 1234 (11th Cir. 1982)   Cited 18 times
    In Coral Gables Imported Motorcars, 673 F.2d 1234 (11th Cir. 1982), the court disposed of the plaintiff's fraud claim because the plaintiff executed a subsequent franchise agreement with the defendant after the first contract between the parties had expired.

    In the instant case, it was apparent to both parties from the time the original agreement was executed, that a renewal agreement would be forthcoming in December of 1975. While it is true that appellees would have been unable to continue receiving cars and parts if they had not signed the second agreement, this sort of allegation alone has uniformly been held insufficient to establish duress. See, e.g., Three Rivers Motors Co. v. Ford Motor Co., 522 F.2d 885 (3d Cir. 1975); Kohen v. H.S. Crocker Co., 260 F.2d 790 (5th Cir. 1958); La Beach v. Beatrice Foods Co., 461 F. Supp. 152 (S.D.N.Y. 1978). 66 Am.Jur.2d, Release § 26 (1973).

  5. Chouinard v. Chouinard

    568 F.2d 430 (5th Cir. 1978)   Cited 44 times

    See Ga. Code Ann. § 20-503 (1977); Yearwood v. National Bank of Athens, 222 Ga. 709, 152 S.E.2d 360 (1966).Kohen v. H. S. Crocker Co., 260 F.2d 790 (5 Cir. 1958) (business compulsion not established merely by proof that consent was secured by pressure of financial circumstances). See also Three Rivers Motors Co. v. Ford Motor Co., 522 F.2d 885 (3 Cir. 1975); Undersea Eng. Constr. Co. v. International Telephone Telegraph Corp., 429 F.2d 543 (9 Cir. 1970); Johnson, Drake Piper, Inc. v. United States, 531 F.2d 1037, 209 Ct.Cl. 313 (1976).

  6. Bell v. United States

    380 F.2d 682 (10th Cir. 1967)   Cited 1 times

    As the Eighth Circuit said in a case in which the plaintiff was asserting economic duress, "The assertion of duress must be proven by evidence that the duress resulted from defendant's wrongful and oppressive conduct and not by plaintiff's necessities." W.R. Grimshaw Company v. Nevil C. Withrow Company, 8 Cir., 248 F.2d 896, 904, cert. denied, 356 U.S. 912, 78 S.Ct. 669, 2 L.Ed.2d 585; See also Kohen v. H.S. Crocker Co., 5 Cir., 260 F.2d 790. Affirmed.

  7. Continental Motors v. Continental Aviation

    375 F.2d 857 (5th Cir. 1967)   Cited 82 times
    Reversing decision in which district court "gave too much uncritical and literal significance to [an earlier decision]"

    F.R.Civ.P. 12(b). See Kohen v. H.S. Crocker Co., 5 Cir., 1958, 260 F.2d 790. Fulton Nat. Bank v. Tate, 5 Cir., 1966, 363 F.2d 562, and cases cited p. 567, n. 6; Davis v. Parkhill-Goodloe Co., 5 Cir., 1962, 302 F.2d 489; McGowan v. United States, 5 Cir., 1961, 296 F.2d 252; Mitchell v. Mitchell Truck Line, Inc., 5 Cir., 1961, 286 F.2d 721; United States v. Williamson, 5 Cir., 1958, 255 F.2d 512; Mitchell v. Raines, 5 Cir., 1956, 238 F.2d 186.

  8. Fabert Motors, Inc. v. Ford Motor Company

    355 F.2d 888 (7th Cir. 1966)   Cited 21 times
    Refusing to invalidate a release in the face of duress claims where the parties have had ready access to counsel

    Alloy Products Corp. v. U.S., 1962, 302 F.2d 528, 530, 157 Ct.Cl. 376. Economic coercion is not established by showing that the release was given under pressure of financial circumstances under threat of Ford's having recourse to an action Ford was legally entitled to take. Kohen v. H.S. Crocker Co., 5 Cir., 1958, 260 F.2d 790, 792. We have carefully considered all points and authorities to which our attention has been invited, but find in them no basis for disturbing the action of the District Court.

  9. Duarte v. Bank of Hawaii

    287 F.2d 51 (9th Cir. 1961)   Cited 20 times

    It constituted a mere conclusional allegation without any supporting factual allegations, and it was not separately stated. See Kohen v. H.S. Crocker Co., Inc., 5 Cir., 260 F.2d 790; Fed.R.Civ.P. 8(b)(c), 10(b), 28 U.S.C.A. Nevertheless, it might have been regarded as a sufficient pleading upon which appellants could have grounded the contentions concerning diversion of security which they now advance.

  10. Danny Herman Trucking, Inc. v. Miranda

    No. 21-CV-00043-DC-DF (W.D. Tex. Jan. 25, 2022)

    Fed. R Civ. P. 12(d); see also Kohn v. H.S Crocker Co., 260 F.2d 790, 792-93 (5th Cir. 1958). In doing so, “all parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.” Greenway v. Wilkie, No. H-18-3776, 2019 U.S. Dist. LEXIS 24897, at *2-*3, (S.D. Tex. Feb. 15, 2019) (alteration omitted) (quoting Fed.R.Civ.P. 12(d)); see also Bosarge v. Miss. Bureau of Narcotics, 796 F.3d 435, 440 n.4 (5th Cir. 2015).