Greenwood v. Dittmer
| Decision Date | 08 November 1985 |
| Docket Number | 84-2468,Nos. 84-2403,s. 84-2403 |
| Citation | 776 F.2d 785 |
| Parties | Stanley GREENWOOD, Appellant, v. Thomas H. DITTMER, Ray E. Friedman & Company, Appellees. Stanley GREENWOOD, Appellee, v. Thomas H. DITTMER, Ray E. Friedman & Company, Appellants. |
| Court | U.S. Court of Appeals — Eighth Circuit |
John F. Arens, Fayetteville, Ark., for appellant.
Elizabeth J. Robben, Little Rock, Ark., for appellees.
Before HEANEY and BOWMAN, Circuit Judges, and WANGELIN, * Senior District Judge.
Stanley Greenwood brought suit against Thomas Dittmer and Refco, Inc. seeking damages allegedly resulting from Dittmer's and Refco's actions regarding various commodities transactions in feeder cattle. Refco filed a counterclaim seeking to recover a debit balance on Greenwood's commodities trading account with Refco. The jury awarded Greenwood both actual and punitive damages and also found for Greenwood on Refco's counterclaim. The District Court, 1 596 F.Supp. 235 (W.D.Ark.1984) granted Refco's motion for judgment notwithstanding the verdict (n.o.v.) on Greenwood's claims and denied Refco's motions for a directed verdict, judgment n.o.v. and a new trial on the counterclaim. Both parties now appeal and assert error in these and other rulings. We affirm.
In 1978, Stanley Greenwood opened a non-discretionary commodity futures trading account with the Springdale, Arkansas office of Refco, a Chicago-based commodity brokerage business. Greenwood relied on Stephen Johns and Robert Bone, brokers in the Springdale office, for investment advice and information. On June 26, 1979, Greenwood went to the Refco office and told Johns and Bone that he was going to close his account. Bone eventually convinced Greenwood to take short positions in twenty-five August 1979 feeder cattle contracts. Both Johns and Bone thought that Thomas Dittmer, the president of Refco, was taking a short position in feeder cattle. On the basis of this belief, Johns and Bone personally were taking short positions in feeder cattle and were advising their clients to do likewise. In fact, Dittmer was taking a long position in the market.
Although Greenwood only agreed to take twenty-five contracts in feeder cattle, Bone also placed an additional twenty-eight unauthorized contracts in Greenwood's account on June 27 and 28 in partial disposition of 1000 contracts that Bone had ordered in violation of the rules of the Chicago Mercantile Exchange. On June 28, Greenwood called Johns from Dallas and was informed that his account contained twenty-eight additional short feeder contracts. Greenwood agreed to keep the additional trades in his account. Thereafter, the price of feeder cattle rose, causing a substantial loss in Greenwood's account. These losses exceeded his margin and he was placed on "margin call." When he could not meet the call, Refco liquidated Greenwood's account in accordance with the provisions of the customer agreement.
Subsequently, Greenwood commenced this action alleging that Refco and its agents violated section 4b of the Commodity Exchange Act (CEA), 7 U.S.C. Sec. 6b, committed common-law fraud, and breached their fiduciary duties to him as a customer. Greenwood claimed that he accepted the unauthorized positions in his account because of representations made by Refco through its agents that Refco thought that the cattle market would decline. The plaintiff asserts that Refco knew that this advice was erroneous because Dittmer, Refco's president, had begun to deliver feeder cattle which allegedly would have had the effect of causing the price of futures to rise.
Refco denied the substance of Greenwood's complaint. In addition, Refco asserted a counterclaim for the debit balance remaining in Greenwood's account. Greenwood contended that Refco had forgiven the debt.
The District Court granted Refco's motion for a directed verdict on the breach of fiduciary duty claim. The case then was submitted to the jury on the CEA and common-law fraud claims and on the counterclaim. 2 The jury returned a general verdict for Greenwood on the fraud claims, awarding actual and punitive damages, and a verdict against Refco on its counterclaim. Refco moved for judgment n.o.v. on all counts. The District Court set aside the jury verdict for Greenwood but denied Refco's motion regarding the counterclaim. Greenwood now appeals the granting of the directed verdict on the breach of fiduciary duty claim and of the judgment n.o.v. in favor of Refco. Greenwood also appeals the District Court's award of attorneys' fees and costs in connection with Greenwood's failure to subpoena a witness for a deposition. Refco appeals the court's denial of its motions for a directed verdict, judgment n.o.v., and a new trial on its counterclaim.
Greenwood first asserts that the District Court committed error when it granted Refco's motion for a directed verdict on the breach of fiduciary duty claim. In reviewing a district court's grant of a directed verdict motion, this Court must decide whether the evidence was sufficient to create an issue of fact for the jury. Kropp v. Ziebarth, 601 F.2d 1348, 1352 (8th Cir.1979). In making this assessment, we view the evidence in the light most favorable to the non-moving party, giving that party the benefit of all reasonable inferences. Rogers v. Allis-Chalmers Credit Corp., 679 F.2d 138, 140 (8th Cir.1982).
Although the plaintiff's complaint in this case avers that his account with Refco was a discretionary account, the record unequivocally reveals that it was a non-discretionary account. Greenwood argues, however, that the existence of a fiduciary relationship between a broker and his customer is not dependent upon whether the account in question is discretionary or non-discretionary. In support of this contention, Greenwood cites several decisions of the Commodity Futures Trading Commission (CFTC) holding that a broker has a fiduciary duty to a customer unless he does nothing more than act as a conduit for the customer's orders. See, e.g., Guttman v. Paine Webber Jackson & Curtis, Inc., Comm.Fut.L.Rep. (CCH), p 21,434 at 26,077 (CFTC 1982); Wheeler v. Investment Managers Commodity Corp., Comm.Fut.L.Rep. (CCH), p 20,867 at 23,552 (CFTC 1979). 3
The CFTC's jurisdiction, however, extends only to CEA violations and therefore it has no authority to determine breach of fiduciary duty claims arising under state law. See Arkoosh v. Dean Witter & Co., 415 F.Supp. 535, 540 (D.Neb.1976); see also 7 U.S.C. Sec. 15 (). We defer to the determination of the District Court that, under Arkansas law, no fiduciary duty arises between a broker and his client in relation to a non-discretionary commodity trading account. See Stoetzel v. Continental Textile Corporation of America, 768 F.2d 217, 223 (8th Cir.1985) (). We notice in passing that the District Court's determination of Arkansas law is in accord with our observation in Ray E. Friedman & Co. v. Jenkins, 738 F.2d 251, 254 (8th Cir.1984), that there was "no merit in [the] contention that an instruction on fiduciary duty should have been given" because the account involved was non-discretionary. Since there was no dispute that Greenwood's account was non-discretionary, we cannot say that the District Court erred in directing a verdict in Refco's favor on this claim.
The plaintiff next contends that the District Court erred when it granted Refco's motion for judgment n.o.v. on the CEA and common-law fraud claims. A motion for judgment n.o.v. tests the sufficiency of the evidence in the same manner as does a motion for a directed verdict at the close of all evidence. Tackett v. Kidder, 616 F.2d 1050, 1052 (8th Cir.1980). Upon appeal of an order granting judgment n.o.v., this Court is guided by the same standard as the trial court. See id. at 1053. The Court must: "(a) consider the evidence in the light most favorable to the plaintiff[ ] as the verdict-winning part[y], (b) assume that the jury resolved all conflicts of evidence in favor of the plaintiff[ ], (c) assume as true all facts which the plaintiff['s] evidence tended to prove, (d) give the plaintiff[ ] the benefit of all favorable inferences which may reasonably be drawn from proved facts, and (e) deny the motion if in light of the above reasonable jurors could differ as to the conclusions that could be drawn from the evidence."
Brown v. Missouri Pacific Railroad, 703 F.2d 1050, 1052 (8th Cir.1983).
We initially note that rule 9(b) of the Federal Rules of Civil Procedure requires that "the circumstances constituting fraud ... be stated with particularity." One of the primary purposes of this rule is to facilitate a defendant's ability to respond to and to prepare a defense to a plaintiff's charges. In the instant case, the plaintiff's complaint details the alleged fraud as consisting of advising the plaintiff to sell short while the defendant was beginning to deliver feeder cattle to drive up the futures market. Greenwood also alleges in conclusory fashion in his complaint that the defendant, through its agents, made untrue statements of material facts or omitted or failed to state material facts necessary to make other statements not misleading. We view these latter allegations as insufficiently specific to satisfy the requisites of Fed.R.Civ.P. 9(b).
We also note that the District Court denied the plaintiff's motion to amend the pleadings to conform to the evidence. The plaintiff has not appealed the denial of this motion. Thus, we determine whether the District Court's grant of Refco's motion for judgment n.o.v. was appropriate only by reference to the plaintiff's claim that Refco intentionally or knowingly advised its customers, including Greenwood, to accept short sales of cattle futures while...
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