425 F.2d 92 (2nd Cir. 1970), 437, Applegate v. Top Associates, Inc.

Docket Nº437, 34143.
Citation425 F.2d 92
Party NameRex APPLEGATE, Appellant, v. TOP ASSOCIATES, INC., Theodore O. Prounis, Appellees.
Case DateJanuary 30, 1970
CourtUnited States Courts of Appeals, Court of Appeals for the Second Circuit

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425 F.2d 92 (2nd Cir. 1970)

Rex APPLEGATE, Appellant,


TOP ASSOCIATES, INC., Theodore O. Prounis, Appellees.

No. 437, 34143.

United States Court of Appeals, Second Circuit.

January 30, 1970

Argued Jan. 13, 1970.

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Raymond Rubin, New York City, for appellant.

Edmund T. Delaney, New York, City, (Daniel E. Kirsch and Townsend & Lewis, New York City, on the brief), for appellees.

Before KAUFMAN and FEINBERG, Circuit Judges, and LEVET, District judge. [*]

IRVING R. KAUFMAN, Circuit Judge:

On April 5, 1960, plaintiff Rex Applegate's wife Adela and his two children disappeared from their home in Mexico City. Applegate has neither seen nor heard from them for the past ten years. He has enlisted the aid of the Federal Bureau of Investigation, United States embassies throughout the Americas, and a Mexican detective agency, all to no avail. As his persistent and painstaking labors to find his family proved unrewarding and led him to utter frustration, there arose in his mind a suspicion, which ultimately ripened into a belief, that they had fallen victim to foul play. Focusing on individuals unfriendly to him, Applegate came to believe that they were the culprits who had spirited away his wife and children, and that to this day they have continued to confine his family in some unknown region of the wide world.

Convinced that his wife and children had been the innocent pawns in a conspiracy directed against him, in December 1968 Applegate instituted this action, seeking $1,000,000 in damages from those whom he alleged to be the conspirators. As defendants he named Top Associates, Inc., a New York company which, he claimed, had placed two agents in Mexican corporations operated by Applegate; Theodore Prounis, its president; Philip Roetinger, one of the agents allegedly assigned to Applegate's corporations; Janet Graham Leddy Scott, a woman whose association with his wife Applegate had strenuously disapproved; and several 'Roe's' and 'Doe's' whose roles in the alleged conspiracy were as mysterious as their identities.

Characterizing Applegate's lawsuit as an action for alienation of affections, the defendants responded immediately with a motion to dismiss for failure to state a claim on which relief could be granted. 1 Prounis, the only individual

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defendant to be served, also submitted an affidavit denying any connection with any conspiracy to kidnap Applegate's wife. 2 To this affidavit was attached the record of a 1960 Nevada divorce proceeding, in which Adela had received a decree of divorce from Applegate for extreme cruelty and had also been awarded custody of the children. Adela's mother, who had witnessed the divorce proceeding and vouched for its accuracy, also submitted an affidavit, in which she revealed that her daughter had since remarried.

Against this array of documentation, Applegate's sole response was an expression of doubt that his 'wife' had ever divorced him and a comment on his 'wife's' continuing and inexplicable silence. More than this he did not say, hinting mysteriously that the more detailed facts at his disposal concerned the security of the United States. Goaded by Applegate's reference to his 'wife's' silence, the defendants obligingly replied with an affidavit executed by Adela in which she stated flatly that she had left Applegate voluntarily in 1960 because of the extreme indignities he had visited upon her and her children and that since 1960 she had remarried and lived in various unspecified regions of the United States and Mexico. In light of Applegate's shocking accusations it was to be anticipated he would charge that his 'wife's' signature was a forgery and that the motives of those who had corroborated her account were highly questionable; this he did. Having received affidavits from both sides, Judge Weinfeld elected to treat the motion to dismiss as one for summary judgment and then proceeded to decide that Applegate had not shown a genuine issue of fact to exist. Accordingly, he granted summary judgment for the defendants. 3

Only at this late juncture, after entry of summary judgment in favor of Top Associates and Prounis, did Applegate see fit to come forward and divulge his account of the alleged facts leading up to his wife's departure. 4 He attempts to excuse this tardiness by urging that the only motion ever placed before the district court was one to dismiss on the face of the complaint. Summary judgment, Applegate maintains, was a rude and unpleasant surprise to him. While we view these protestations of ignorance with some skepticism, 5 we

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shall, in deciding the appeal in this bizarre case, assume that he presented his supplemental affidavit to the district court at the appropriate time, in order to eliminate any claim that appellant was denied a trial because of procedural technicalities.

The tale which unfolds in Applegate's supplemental affidavit is replete with romance, mystery, intrigue, and jealousy. It appears from this document that during the Second World War, Applegate was engaged in military intelligence; indeed, we are told that he is the only living graduate of the Allied 'School for Assassins.' When an unspecified disability, he goes on, forced his retirement from the armed services in 1945, he resolved to put his training in military intelligence to good use. With the alleged assistance of the United States government, he was installed as head of two Mexican corporations engaged in the Latin American arms traffic.

For a time all went smoothly. But in 1957, four years after his marriage to Adela, he was approached by one Captain Kirten, a man purportedly connected with American intelligence, who asked Applegate to employ two intelligence agents in his corporations to assist in gathering information relating to the traffic in guns. Applegate, 'as a retired Military Intelligence Officer and a patriotic American citizen,' acceded to the plan. He concluded final arrangements with defendant Prounis, then president of Top Associates, he continues, and shortly thereafter employed defendant Roetinger and one named Haley. But the two probably proved better spies than businessmen, and when their efforts, however valuable to the...

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