KOVACHEVICH, District Judge.
The cause is before the Court on the following motions, responses, and supporting documentation:
1. Plaintiffs' motion for summary judgment on Count VI (Oklahoma non-registration claim), filed January 6, 1989.
2. Affidavit Martin T. Fletcher, Sr. in support of Plaintiffs' motion for summary judgment on Count VI, filed January 6, 1989.
3. Defendant E.F. Hutton & Company's motion for partial summary judgment on Count VI and memorandum of law in support thereof, filed January 9, 1989.
4. Plaintiffs' memorandum of law in support of motion for summary judgment on Count VI, filed January 11, 1989.
5. Defendant E.F. Hutton & Company's memorandum of law in opposition to Plaintiffs' motion for summary judgment on Count VI, filed February 6, 1989.
6. Defendant Viking Energy Management Company, Inc.'s joinder in E.F. Hutton and Company's opposition to Plaintiffs' motion for summary judgment on Count VI, filed February 3, 1989.
7. Supplementary affidavit of Douglas R. Pappas, filed February 10, 1989.
8. Plaintiffs' memorandum in opposition to E.F. Hutton and Company's motion for summary judgment on Count VI, filed February 13, 1989.
9. Plaintiffs' motion for summary adjudication that Oklahoma Securities Act applies to sales and for summary judgment on E.F. Hutton and Company's affirmative defenses 12 and 22, filed December 2, 1988.
10. Plaintiffs' memorandum of law in support of motion for summary judgment that Oklahoma Securities Act applies to sales, filed December 2, 1988.
11. Defendant E.F. Hutton and Company's memorandum of law in opposition to Plaintiffs' motion for summary judgment that the Oklahoma Securities Act applies to sales, filed December 22, 1988.
12. Defendant Viking Energy Management Company, Inc.'s joinder in opposition to Plaintiffs' motion for summary judgment that Oklahoma Securities Act applies to sales, filed December 27, 1988.
13. Plaintiffs' reply to E.F. Hutton and Company's "Conflict of Laws" argument, filed January 1, 1989.
14. Plaintiffs' supplemental authority in support of their motion for summary judgment that the Oklahoma Securities Act applies to sales, filed February 27, 1989.
15. Defendant E.F. Hutton & Company's supplemental memorandum in support of motion for summary judgment on conflict of laws, filed March 1, 1989.
16. Plaintiff John M. Miller's motion for summary judgment on Count I (non-registration under Section 517.07, Florida Statutes) and memorandum in support thereof, filed January 4, 1989.
17. Defendant E.F. Hutton & Company's motion for partial summary judgment on Count I, filed January 9, 1989.
18. Defendant E.F. Hutton & Company's memorandum in support of their motion for partial summary judgment on Count I and in opposition to Plaintiff John M. Miller's motion for summary judgment on Count I, filed January 20, 1989.
19. Affidavit of James Mofsky, filed January 20, 1989.
20. Affidavit of Mark E. Segall, filed January 20, 1989.
21. Defendant Viking Energy Management Company, Inc.'s joinder in support of Defendant E.F. Hutton & Company's motion for partial summary judgment on Count I and in opposition to Plaintiff John M. Miller's motion for summary judgment on Count I, filed January 20, 1989.
22. Plaintiffs' motion to strike affidavit of Professor James Mofsky and memorandum of law in support thereof, filed February 3, 1989.
23. Affidavit of Martin Fletcher, filed February 8, 1989.
24. Plaintiffs' reply to E.F. Hutton & Company's motion for summary judgment on Count I, filed February 8, 1989.
25. Defendants' memorandum in opposition to Plaintiffs' motion to strike affidavit, filed February 22, 1989.
26. Defendant E.F. Hutton & Company's motion for summary judgment on alleged oral misrepresentations and memorandum of law in support thereof, filed January 9, 1989.
27. Plaintiffs' memorandum in opposition to motion for summary judgment on alleged oral misrepresentations, filed February 3, 1989.
28. Affidavit of Martin Fletcher, filed February 3, 1989.
29. Plaintiffs' motion for summary judgment as to Defendants' counterclaims and memorandum of law in support thereof, filed December 12, 1988.
30. Defendant E.F. Hutton & Company's memorandum in opposition to motion for summary judgment as to counterclaims, filed January 12, 1989.
31. Plaintiffs' motion for summary judgment as to certain affirmative defenses, filed January 6, 1989.
32. Plaintiffs' memorandum of law in support of motion for summary judgment as to certain affirmative defenses, filed January 11, 1989.
33. Defendant E.F. Hutton & Company's memorandum in opposition to motion for summary judgment as to certain affirmative defenses, filed February 13, 1989.
34. Defendant Viking Energy Management Company, Inc.'s joinder in memorandum in opposition to motion for summary judgment as to certain affirmative defenses, filed February 13, 1989.
35. Defendant E.F. Hutton & Company's motion for partial summary judgment against Plaintiffs Barnebey, Griffins, and Summit Bank and memorandum of law in support thereof, filed January 9, 1989.
36. Plaintiffs' memorandum in opposition to motion for summary judgment as to Plaintiffs Barnebey, Griffins and Summit Bank, filed February 3, 1989.
37. Affidavit of Martin Fletcher of February 9, 1989.
38. Affidavit of Douglas R. Pappas, filed January 9, 1989.
39. Affidavit of John M. Miller, filed January 4, 1989.
40. Affidavit of Mark E. Segall, filed December 22, 1988.
41. Affidavit of William Turchyn, Jr. and four (4) volume appendix thereto, filed December 22, 1988.
42. Two volume appendix to Plaintiffs' motions for summary judgment, filed December 22, 1988.
43. Plaintiffs' motion to submit supplemental authority in opposition to motion for summary judgment on alleged oral misrepresentations, filed March 29, 1989.
44. Defendant Hutton's response to motion to submit supplemental authority, filed April 4, 1989.
45. Plaintiffs' objection to Hutton's "Response to Plaintiff's Motion to Submit Supplemental Authority", filed April 19, 1989.
This circuit clearly holds that summary judgment should only be entered when the moving party has sustained its burden of showing the absence of a genuine issue as to any material fact when all the evidence is viewed in the light most favorable to the nonmoving party. Sweat v. The Miller Brewing Co., 708 F.2d 655 (11th Cir.1983). All doubt as to the existence of a genuine issue of material fact must be resolved against the moving party. Hayden v. First National Bank of Mt. Pleasant, 595 F.2d 994, 996-7 (5th Cir.1979), quoting Gross v. Southern Railroad Co., 414 F.2d 292 (5th Cir.1969). Factual disputes preclude summary judgment.
The Supreme Court of the United States held, in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986),
In our view the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Id. at 322, 106 S.Ct. at 2552-53, at 273.
The Court also said, "Rule 56(e) therefore requires that nonmoving party to go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing there is a genuine issue for trial.'" Celotex Corp., at 324, 106 S.Ct. at 2553, at p. 274.
This cause of action was removed to this Court on September 22, 1987. Plaintiffs filed an amended complaint on January 15, 1988. The complaint alleged the following facts as relevant to the causes of action asserted:
1. Defendant Viking Energy Management Company, Inc. (VEMCO or Viking) was the sole general partner in VEMCO 1981 Private Drilling Program (VEMCO 1981).
2. Defendant E.F. Hutton & Company (Hutton) owned sixteen percent (16%) of the stock of Viking. Through its ownership of stock in Viking and its position as exclusive sales agent for Viking's various limited partnerships, including VEMCO 1981, Hutton had direct and/or indirect control over Viking.
3. On or about March 13, 1981, Hutton entered into an agreement with Viking, wherein Hutton agreed to act, and did thereafter act, as the exclusive sales agent for Viking and VEMCO 1981, for the purpose of selling limited partnership interests in the limited partnership to the public.
4. Each Plaintiff purchased thirty (30) units of the limited partnership, through the same Hutton account executive in Sarasota, Florida, for an aggregate initial consideration of $150,000.00 each, of which $50,000.00 was paid in cash, and $100,000.00 was to be paid by the assumption of a portion of a capital loan to VEMCO 1981, supported by a letter of credit.
5. The units of the limited partnership were securities pursuant to 15 U.S.C. 77b. In connection with the sales Defendants utilized and delivered to Plaintiffs a private offering memorandum dated March 1, 1981, and other documents and letters. Also in connection with the sale, Hutton utilized and delivered a document known as a "Blue Top", or communicated the substance of the Blue Top to Plaintiffs orally.
6. The
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