limited instances be personally liable for a malicious act done under color of their office. However, it is the Board of Education for the Southern Gloucester County Regional High School District which is defending here, not the individual members of that Board. The first count will accordingly be dismissed.
The Fourth Count of the Complaint.
The fourth count of plaintiff's complaint, which is directed against the Board's architects, individually and in their partnership capacity, attempts to set forth a claim for relief based upon a theory of tortious interference with a prospective economic advantage. Assuming, that had the defendant-architects properly totaled the bids submitted to the Board of Education, the plaintiff would have in due course been awarded the contract, does this entitle the plaintiff to relief against them upon such a theory of law?
The Court feels the answer must clearly be in the negative. Such a tort, in order to be actionable, must be the product of a malicious act. Newark Hardware & Plumbing Supply Co. v. Stove Mfrs. Corp., 1947, 136 N.J.L. 401, 56 A.2d 605; Brennan v. United Hatters, 1906, 73 N.J.L. 729, 65 A. 165, 9 L.R.A., N.S., 254; Rainier's Dairies v. Raritan Valley Farms, Inc., 1955, 19 N.J. 552, 117 A.2d 889; Joseph v. Passaic Hosp. Ass'n, 1958, 26 N.J. 557, 141 A.2d 18; Hohl v. Mettler, 1960, 62 N.J.Super. 62, 162 A.2d 128; Gherardi v. Trenton Board of Education, 1958, 53 N.J.Super. 349, 147 A.2d 535; see, also, Prosser, Torts 107 (2nd Ed.) (1958). A Federal Court sitting in a diversity action is certainly not free to pioneer in such an area of well established State law. For this reason the fourth count of the complaint, which fails to allege malice, must be dismissed.
The Third Count of the Complaint
Unlike the fourth count, however, the third count does contain a claim of malice on the part of the architects in advising the Board of Education to deprive the plaintiff of the construction contract. The Court agrees with the defendant-architects that the question in this count is not whether the plaintiff has alleged the elements essential to such a claim for relief, but rather, whether one of the essential elements of such a claim the claim of malice on the part of the architects (see discussion supra, at page 737) -- has been effectively negated by the answer and supporting affidavits of the defendants which categorically deny such malice. In other words, where the defendants' answer contains a denial of the general allegation of malice, along with affidavits in support of such a denial, must the plaintiff thereafter come forward with counter-affidavits alleging specific facts in support of such malice or suffer summary judgment thereby?
Preliminary to answering this question, it should be noted that the issue of whether or not a Federal Court should grant summary judgment is basically a question of Federal law. In a diversity action it is admittedly State law which defines the cause of action. Nevertheless, the effect of affidavits upon a well pleaded claim for relief, whether or not the non-moving party must come forward with counter-affidavits or suffer summary judgment and related questions are procedural in nature and, therefore, must be resolved by the law of the forum. For this reason we feel that the defendants' reliance upon New Jersey case law on this point is somewhat misplaced. Rather, we think such cases as Subin v. Goldsmith, 2 Cir., 1955, 224 F.2d 753; Sarnoff v. Ciaglia, 3 Cir., 1947, 165 F.2d 167; Williams v. Minnesota Mining & Mfg. Co., D.C.S.D.Cal.1953, 14 F.R.D. 1; Robinson v. Waterman Steamship Co., D.C.D.N.Y.1948, 8 F.R.D. 155; and particularly the rationale set forth in Barron & Holtzoff, Federal Practice and Procedure, 1232.2 (1958 Ed.) must control here. When the fact sought to be established by an affidavit in support of a motion for summary judgment involves the state of mind or motive of a person (or body of individuals), as is the case in the third count of the present complaint, summary judgment is particularly inappropriate and must be denied.
It might be added, however, that the plaintiff has a difficult case to prove, as is pointed up by the excellent development of New Jersey case law on this type of action in the defendant-architects' brief. Nevertheless, the fact that the plaintiff has chosen a long and arduous road to recovery does not justify our blocking that road at this point.
We, therefore, will deny the motion for summary judgment as to the third count, while granting the same as to the first, second and fourth counts of the complaint.
Counsel will prepare an appropriate order.
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