Walter E. Heller & Company, Inc. v. Cox
Decision Date | 12 August 1974 |
Docket Number | 69 Civ. 5094.,No. 66 Civ. 1437,66 Civ. 1437 |
Citation | 379 F. Supp. 299 |
Parties | WALTER E. HELLER & COMPANY, INC., Plaintiff, v. Ralph COX, Jr., Defendant. WALTER E. HELLER & COMPANY, INC., Plaintiff, v. OCEAN AIR TRADEWAYS, a partnership, Defendant. |
Court | U.S. District Court — Southern District of New York |
COPYRIGHT MATERIAL OMITTED
Wachtel, Lipton, Rosen & Katz, New York City (Herbert M. Wachtell, Bernard Mindich and Allen P. Rosiny, New York City, of counsel), for plaintiffs.
Bill Smalley, Tulsa, Okl., for defendants.
Battle, Fowler, Lidstone, Jaffin, Pierce & Kheel, New York City (Michael J. Saltser, New York City, of counsel), for Stanley P. Weiss.
Atchison, Haile & Haight, Santa Cruz, Okl. (Rodney R. Atchison, Santa Cruz, Okl., of counsel), for C. R. E. Smith and others.
OPINION, FINDINGS OF FACT AND CONCLUSIONS OF LAW
Plaintiff, Walter E. Heller & Company, Inc., (hereinafter "Heller") seeks an injunction against the further prosecution or institution of proceedings against it, its officers and affiliates by defendants Ralph Cox, Jr. (hereinafter "Cox") and Ocean Air Tradeways (hereinafter "OAT"), insofar as those proceedings relate to matters arising from a 1962 loan transaction between plaintiff and United States Overseas Airlines, Inc., (hereinafter "USOA") and Heller's subsequent collection efforts. For the reasons which follow, this motion is granted.
A hearing was held on April 2, 1974 at which both sides were afforded an opportunity to call witnesses and present evidence. Plaintiff chose to rest on its affidavits, consisting of well over one-hundred pages and the more than seventy annexed exhibits.1 Defendants have submitted virtually nothing of any significance in opposition.2 No live testimony was presented by any of the parties.
Although Judge Friendly has repeatedly warned of the undesirability of issuing injunctions solely on the basis of affidavits, see Semmes Motors, Inc. v. Ford Motor Company, 429 F.2d 1197, 1204 (2d Cir. 1970); SEC v. Great American Industries, 407 F.2d 453, 455 (2d Cir. 1968, in banc.), cert. denied, 395 U.S. 920, 89 S.Ct. 1770, 23 L.Ed.2d 237; SEC v. Frank, 388 F.2d 486, 490-492 (2d Cir. 1968), where, as here, the affidavits are overwhelming and uncontroverted "the taking of evidence would serve little purpose." SEC v. Frank, supra at 490; Murray v. Kunzig, 149 U.S.App.D. C. 256, 462 F.2d 871, 883 (1972). Although actually encouraged by the court to do so, defendants made no serious attempt to rebut Heller's affidavits.3 Accordingly, I am required to take as true the statements of fact contained in the Heller affidavits. Williams v. San Francisco Unified School District, 340 F.Supp. 438, 442 (N.D.Cal.1972); Corning Glass Works v. Lady Cornella, Inc., 305 F.Supp. 1229, 1231 (E.D.Mich. 1969); Western Air Lines v. Flight Engineers Internat'l Ass'n., 194 F.Supp. 908 (S.D.Cal.1961).
Substantial portions of the factual background of the instant litigation are set out in my previous opinion, Walter E. Heller & Co. v. Cox, 343 F.Supp. 519 (S.D.N.Y.1972), aff'd 486 F.2d 1398 (2d Cir. 1973); cert. denied 414 U.S. 827, 94 S.Ct. 46, 38 L.Ed.2d 61 (1973). A familiarity with that decision is assumed and an effort has been made to avoid unnecessary repetition in setting out the following findings of fact.
On November 23, 1962, plaintiff entered into a written loan agreement with USOA and various affiliated companies and persons, including Air Power Overhaul Inc. (hereinafter "APO"), Ocean Air Tradeways, Inc. (hereinafter "OAT, Inc.), Canamex Corporation, and defendants Cox and OAT. The loan agreement provided that plaintiff would lend $1,700,000 to USOA repayable with interest by USOA in 24 successive monthly installments.4 Simultaneously Cox, OAT, OAT, Inc., APO and Canamex executed and delivered separate written guarantees of the USOA indebtedness. Heller also received an additional guarantee from an independent third party, Twentieth Century Aircraft Co. (hereinafter "Twentieth Century"), of which Mr. Stanley Weiss, who has moved to intervene in the instant action, was the principal partner. Finally, Heller received various collateral for the loan and guarantee obligations from USOA and its affiliates.
USOA defaulted on its obligations from the very outset. The first installment of the loan was only partially paid, and thereafter not one installment was paid in its proper amount or when due. Nonetheless, Heller refrained from declaring a default until July, 1965 at which time it accelerated the entire amount outstanding and began pursuit of collection by, among other things, the sale of collateral. From that point on, Heller became enbroiled in one litigation after another, faced time and again "with the most frivolous challenges, harassments and dilatory maneuverings imaginable designed to frustrate and prevent Heller from recovering the monies owed to it."5 To date there have been at least 15 separate major litigations and proceedings in 10 different courts throughout the country. Because of their relevance to Heller's request for a "bill of peace" a brief description of each follows:6
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