Arlinghaus v. Ritenour
| Decision Date | 26 October 1976 |
| Docket Number | No. 158,D,158 |
| Citation | 543 F.2d 461 |
| Parties | Rosalie M. ARLINGHAUS, Executrix of the Will of Frank H. Arlinghaus, and Rosalie M. Arlinghaus, Individually, Plaintiff-Appellant, v. J. Richmond RITENOUR and John J. Lipsky, Defendants-Appellees, and Miriam Pepper and Sidney Pepper, Defendants. ocket 75-7616. |
| Court | U.S. Court of Appeals — Second Circuit |
Preben Jensen, New York City (Casey, Lane & Mittendorf, and Michael J. Connelly, New York City, of counsel), for plaintiff-appellant.
Raymond P. O'Keefe, New York City (Charles A. Scharf, New York City, of counsel), for defendants-appellees.
Before FRIENDLY, HAYS and TIMBERS, Circuit Judges.
This action in the District Court for the Southern District of New York was brought in 1968 by plaintiff Rosalie M. Arlinghaus, individually and as executrix of the will of her husband Frank H. Arlinghaus. The action related to her sale, in both capacities, of shares of stock of a closely-held corporation, Modern Teleservice, Inc. (Teleservice), to defendants Ritenour and Lipsky, officers and directors of Teleservice, and to defendant Miriam Pepper, who is the wife of defendant Sidney Pepper and had been designated by him as a purchaser of the stock. Pepper had served as attorney for Teleservice, for Frank Arlinghaus, its controlling stockholder, and for Mrs. Arlinghaus, individually and as executrix of Frank Arling- haus' estate. Federal jurisdiction was based on diversity of citizenship, 28 U.S.C. § 1332, and also on § 10(b) and § 27 of the Securities Exchange Act. The complaint contained five claims; certain of these were alleged against all the defendants and others only against some. A principal ground of the complaint was that the defendants allegedly had caused plaintiff to sell the Teleservice stock at what they knew was an unduly low price, in breach of their fiduciary obligations and in violation of § 10(b) of the Securities Exchange Act and the SEC's Rule 10b-5; another was that Ritenour and Lipsky, whose continued activity was important to Teleservice, allegedly had threatened to resign unless they were allowed to purchase stock. Plaintiff sought rescission or, in the alternative, compensatory damages, as well as punitive damages.
The action finally came on for a bench trial before Judge Werker in May 1975. In August 1975, the judge filed his opinion. He dismissed all state law claims against defendants-appellees Ritenour and Lipsky. He also dismissed a conspiracy claim and the claim under the Securities Exchange Act against all defendants, and the claim against Miriam Pepper. A principal ground for dismissal of the state law claims against Ritenour and Lipsky was the finding that they had made full disclosure to Pepper of the value of Teleservice and had disclaimed any rumored threats of resignation directly to Mrs. Arlinghaus. However, the court sustained a state law claim charging Pepper with breach of his fiduciary duty, finding that, despite Ritenour's and Lipsky's disclaimers, Pepper, to their knowledge, continued to misrepresent to Mrs. Arlinghaus that Ritenour and Lipsky had threatened to resign unless she made the stock sale and also that Pepper concealed the worth of Teleservice from her. The court refused to hold Pepper liable for any loss of potential profits sustained by Mrs. Arlinghaus on the stock sold to Ritenour and Lipsky, but did hold him liable for any profits obtained as a result of his resale of stock purchased in Mrs. Pepper's name from Mrs. Arlinghaus. The case was referred to a magistrate to determine the amount of these profits. The court also ruled that Pepper was liable for punitive damages but said it would limit these to the amount to be awarded as compensatory damages.
More than a month later, on the motion of Ritenour and Lipsky, the court entered final judgment as to these two defendants. Notice of the proposed entry of judgment was served on the attorneys representing Pepper and Mrs. Arlinghaus; the district court files do not reveal that either made any objection. The court, after reciting that there was "no just reason for delay of entry of judgment, pursuant to Rule 54(b) of the Federal Rules of Civil Procedure," severed Ritenour and Lipsky as defendants and dismissed the complaint against them with costs. Plaintiff took a timely appeal. She thereafter made repeated applications for extensions of time in which to file briefs, in the hope of consolidating her appeal from Judge Werker's decision with Pepper's ultimate likely appeal when the accounting should have been completed. Although both Ritenour and Lipsky, and oddly enough defendant Pepper, initially opposed one or two of Mrs. Arlinghaus' motions to extend time, they ultimately acquiesced in the extensions, ceasing any formal opposition. Extensions were granted over a period of six months, but finally the Staff Counsel for our Civil Appeals Management Plan evidently concluded that enough time had elapsed and denied any further extension "in the absence of exceptional circumstances." Mrs. Arlinghaus did not contest this final scheduling order, and the case thus was set on our September calendar, along with an appeal in a different action involving a dispute between Pepper on one side and Mrs. Arlinghaus and others on the other.
As could readily have been anticipated, the essence of Mrs. Arlinghaus' appeal is an attack on the district court's conclusion that disclosure to Pepper by Ritenour and Lipsky was the legal equivalent of disclosure to her. She argues that Ritenour and Lipsky knew that Pepper was interested in obtaining Teleservice stock for less than its worth; that in pursuance of that plan he had lied to her about their threats of resignation and had continued to refer to such threats even after the disclaimer by them; and that there was every reason to believe he would not communicate to her any knowledge acquired from Ritenour and Lipsky that the Teleservice shares were worth far more than she...
To continue reading
Request your trial
-
Cullen v. Margiotta
...if the same or closely related issues remain to be litigated against the undismissed defendants. See, e.g., Arlinghaus v. Ritenour, 543 F.2d 461, 464 (2d Cir.1976) (per curiam) (appeal dismissed where decision of issues presented would implicate rights of In a case involving multiple claims......
-
National Asbestos Workers Medical v. Philip Morris
...would not need to review same issues nor same facts on separate appeals given the distinct nature of the claims); Arlinghaus v. Ritenour, 543 F.2d 461, 464 (2d Cir.1976) (certification improper because court of appeals would likely have to review same conduct twice). Even where the claims a......
-
Gates v. Henderson
...the normal and proper course would have been for them to state that holding and supporting reasons. Cf. Arlinghaus v. Ritenour, (2d Cir. 1976) (per curiam), 543 F.2d 461, 464 ("A decisionmaker obliged to give reasons to support his decision may find they do not; 'the opinion will not write.......
-
Wash. Elec. Co-op. v. Mass. Mun. Wholesale Elec.
...why they ought to overcome the general rule that no appeal should be heard until the entire case has been completed. Arlinghaus v. Ritenour, 543 F.2d 461, 464 (2d Cir.1976) ("required determination `that there is no just reason for delay' ought not to be made as a matter of rote ... as the ......