Lewis v. S.L. & E., Inc.
| Decision Date | 12 October 1984 |
| Docket Number | Nos. 9,D,56,s. 9 |
| Citation | 746 F.2d 141 |
| Parties | Donald E. LEWIS, Plaintiff-Appellant-Cross-Appellee, v. S.L. & E., INC., Alan E. Lewis, Sr., Leon E. Lewis, Jr., Richard E. Lewis, Sr., Defendants-Appellees, S.L. & E., Inc., Richard E. Lewis, Sr., Defendants-Appellees-Cross-Appellants. LEWIS GENERAL TIRES, INC., Plaintiff-Intervenor-Appellee-Cross-Appellant, v. Donald E. LEWIS, Defendant-Appellant-Cross-Appellee. ockets 84-7089, 84-7103. |
| Court | U.S. Court of Appeals — Second Circuit |
James L. Hamilton, Cleveland, Ohio (Epp & Hamilton, Cleveland, Ohio, on the brief), for plaintiff-appellant-cross-appellee and defendant-appellant-cross-appellee.
Charles B. Kenning, Rochester, N.Y. (Kaufman-Kenning, Rochester, N.Y., on the brief), for defendants-appellees, defendants-appellees-cross-appellants, and plaintiff-intervenor-appellee-cross-appellant.
Before MANSFIELD, MESKILL and KEARSE, Circuit Judges.
Plaintiff Donald E. Lewis appeals from a judgment dated January 9, 1984 ("January 9 Judgment"), of the United States District Court for the Western District of New York, John T. Curtin, Chief Judge, which, inter alia, awarded defendant S.L. & E., Inc. ("SLE"), $129,919.88 against defendants Richard Lewis, Alan Lewis, and Leon Lewis, Jr.; ordered plaintiff to transfer his 15 shares of SLE stock to plaintiff-intervenor Lewis General Tires, Inc. ("LGT"); and ordered SLE to pay plaintiff $25,069.35 as the book value of the SLE shares to be transferred to LGT. Defendants SLE and Richard E. Lewis and plaintiff-intervenor LGT have cross-appealed, contending, inter alia, that the amounts stated in the judgment should be recalculated; SLE also contends that the proper party to make payment to plaintiff for his SLE shares is LGT. Because no final judgment has been entered in the district court, we dismiss the appeal and the cross-appeal.
This action was commenced by plaintiff, a stockholder of SLE, as a derivative action on behalf of SLE for waste, contending that the individual defendants, who were directors of both SLE and LGT, had leased SLE property to LGT for an unreasonably low rental. Plaintiff has prevailed on the merits of this claim, and on January 6, 1984, the court entered an order ("January 6 Order") directing entry of judgment requiring, inter alia, that the individual defendants pay SLE $129,919.88. The January 9 Judgment was then entered.
In light of his success, plaintiff has sought an award of attorney's fees. The district court did not rule on that application but referred the matter to a magistrate, stating that "[u]pon receipt of his report in regard to attorneys' fees, an amended judgment shall be entered." (January 6 Order at 4.) No amended judgment has been entered, and we were informed at oral argument that no further proceedings have been held on the matter of fees. Instead all parties appealed the January 9 Judgment. Their appeals are premature.
Section 1291 of 28 U.S.C. provides, in pertinent part, that "[t]he court of appeals ... shall have jurisdiction of appeals from all final decisions of the district courts of the United States ...." A final judgment or order is one that conclusively determines the rights of the parties to the litigation, leaving nothing for the court to do but execute the order. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978). The January 9 Judgment is not such a final order.
In a derivative action, the award of attorney's fees to a successful plaintiff is normally made out of the fund recovered for the corporation. Jones v. Uris Sales Corp., 373 F.2d 644, 648-49 (2d Cir.1967); see N.Y.Bus.Corp.Law Sec. 626(e) (McKinney 1963); Marine Midland Trust Co. v. Forty Wall Street Corp., 213 N.Y.S.2d 689, 692, 13 A.D.2d 118, 122 (1961), aff'd 11 N.Y.2d 679, 225 N.Y.S.2d 755, 180 N.E.2d 909 (1962); 2 G. Hornstein, Corporation Law and...
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