Butterman v. Walston & Co.
| Decision Date | 25 January 1968 |
| Docket Number | No. 16082.,16082. |
| Citation | 387 F.2d 822 |
| Parties | Walter BUTTERMAN and Emmy Butterman, Plaintiffs-Appellants, v. WALSTON & CO., Inc., a New York corporation, W. D. Fleming, Alfred J. Rauschman, Blanche Blahut, James F. Sullivan, the New York Stock Exchange, and G. Keith Funston, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Thomas F. Londrigan, Robert S. O'Shea, Springfield, Ill., for appellants.
Edward J. Reilly, Edwin H. Conger, John S. Eskilson, Stuart S. Ball, David H. Ward, Chicago, Ill., for defendants-appellees. William E. Jackson, Andrew J. Connick, Milbank, Tweed, Hadley & McCloy, New York City, Sidley & Austin, Chicago, Ill., of counsel.
Before KILEY, SWYGERT and FAIRCHILD, Circuit Judges.
Rehearing Denied January 25, 1968, en banc.
This suit is to recover damages from defendants for money losses from stock and commodity transactions allegedly caused by violations of the Security and Exchange Act and constitution and rules of the New York Stock Exchange. The district court, without a jury, entered judgment for plaintiffs as to defendant Walston & Co., Inc. (Walston) in the amount of $313.16 which Walston concededly owed plaintiffs but found against plaintiffs on the issues relevant to the damages sought for Walston's alleged breaches of duty. The district court also gave summary judgment for defendants The New York Stock Exchange and G. Keith Funston, President of the Exchange. Plaintiffs have appealed from both judgments. We affirm.1
The original complaint in this suit was filed on December 12, 1962. Following the filing of the complaint the Exchange made a motion to quash service and Walston a motion to dismiss. After voluminous briefs were submitted by all parties, the court granted plaintiffs leave to file an amended complaint. The amended complaint was filed on May 17, 1963, and contained five counts. Counts I through IV are directed at Walston, and allege the fraudulent holding out of Blanche Blahut as a qualified registered agent although Walston knew she was not fully qualified nor registered to deal in securities on any exchange. These counts also allege deception and manipulation of plaintiffs' account in violation of the Securities Exchange Act and the common law. Count V charges the Exchange with negligent failure to perform its duty to supervise its members as required by the Securities Exchange Act and the Exchange constitution, bylaws and rules, as a result of which Blanche Blahut was allowed to function as a fully registered qualified representative of Walston.
After the amended complaint was filed in May, 1963, the filing and consideration of a series of motions, including a motion to dismiss as well as several motions, answers, and responses concerning discovery, brought the case to November 22, 1965, when the cause was set for trial on December 27, 1965. The plaintiffs then filed a motion for summary judgment, and supporting and opposing memoranda and affidavits were filed. The Exchange filed a cross-motion for summary judgment which was followed by the filing of additional affidavits and memoranda. On May 18, 1966, the court denied plaintiffs' motion for summary judgment and on May 19, 1966, granted the Exchange's motion. Thereafter discovery continued between plaintiffs and Walston. After a pre-trial conference, trial was set for December 16, 1966.
On December 15, plaintiffs appeared pro se and moved to postpone the trial on the grounds that the second attorney to represent plaintiffs in the case had "stated" she would not represent them at the trial; that plaintiffs had "accepted her resignation"; and that plaintiffs were without representation. The postponement sought was to a "reasonable later date" within which "it will be possible" to secure new counsel. The motion was denied and plaintiffs' trial took place on December 16, 1966, as scheduled. The plaintiffs did not appear at the trial, although they knew that it would take place. Their interests were represented by their attorney of record. Plaintiffs claim the denial of their postponement request was an abuse of discretion, and a denial of due process, because a continuance was required due to the complex nature of their suit, the validity of their charges, and their right to discharge their attorney for cause.
The rule that a party has a right to counsel of his choice and to change or substitute for his attorney of record is not absolute and is of no avail under the circumstances here. We think under the circumstances of this case there was no abuse of discretion in the court's ruling. It follows that we see no violation of fundamental fairness.
The record before the district court when he ruled showed that plaintiffs' original record attorney withdrew because of differences with and accusations by plaintiffs, and that plaintiffs' second attorney of record had as early as July 19, 1966, informed plaintiffs of her desire to withdraw from the case. The court could conclude that plaintiffs had had ample time to acquire another attorney during the four months which had elapsed since their attorney's request that they do so and that their failure to do so should not be allowed to further delay the resolution of a case which had been pending for four years. Statements in Link v. Wabash Railroad Co., 370 U.S. 626, 82 S.Ct. 1386, 8...
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...violations of the Act or its rules. See, e. g., Hochfelder v. Midwest Stock Exchange, 503 F.2d 364 (7 Cir. 1974); Butterman v. Walston, 387 F.2d 822 (7 Cir. 1967), cert. denied, 391 U.S. 913, 88 S.Ct. 1806, 20 L.Ed.2d 652 (1968).7 In Rich the Securities Investors Protection Corporation ("SI......
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