Morgan v. Robertson
| Decision Date | 17 December 1980 |
| Docket Number | No. CA,CA |
| Parties | Roland L. MORGAN, Appellant, v. Charles F. ROBERTSON, Don Robe, James F. Tall and Darlene Smith, Appellees. 80-308. |
| Court | Arkansas Court of Appeals |
Ball & Mourton, Fayetteville, for appellant.
Epley, Epley & Castleberry, Ltd., Eureka Springs, for appellees.
This is an interlocutory appeal from an order striking the Elna M. Smith Foundation, Inc., as a party plaintiff in a derivative action under Rule 23.1 (ARCP). Appellant filed suit as an officer, director, and member, on behalf of the Foundation and its members, against other directors, alleging a multitude of acts of misfeasance and nonfeasance in violation of the By-Laws and Articles and against the interests of the Foundation, essentially intra vires in character.
The defendants denied the allegations, asserted that appellant was no longer a member, officer and director, and moved to strike the Foundation as a party plaintiff, the directors not having authorized the suit.
The motion to strike the Elna M. Smith Foundation, Inc., as a party plaintiff was granted, pursuant to a letter opinion from the Chancellor finding that the Foundation was not the real party in interest and that under the present pleadings the case was not certifiable as a class action under Rule 23, or as a derivative action by a member of a corporation under Rule 23.1.
Roland L. Morgan has appealed from the order, alleging that the court erred in finding that the Foundation was not the real party in interest, and in finding that the action was not properly brought as a derivative suit under Rule 23.1 (ARCP). We think the court was correct in striking the Foundation as a party plaintiff, but we disagree with the findings.
It is settled beyond dispute that in a derivative suit on behalf of a corporation either against third persons or against officers or directors of the corporation, the corporation is a necessary party. It is, in fact, inherent in the nature of the suit itself that it is the corporation whose rights are being redressed rather than those of the individual plaintiff. It follows that the corporation is regarded as the real party in interest. The authority for this conclusion is ample and without dissenting jurisdiction. Arkansas has dealt with the question sparingly, but in Red Bud Realty Company v. South, 153 Ark. 380, 241 S.W. 21 (1922), the Supreme Court recognized the propriety of the corporation being named as a party defendant with the majority stockholders in a suit by a minority stockholder alleging misappropriation of the assets of the corporation and other acts perverting the purposes of the corporation, saying:
The corporation is a necessary party to such an action, and is named and brought in, that appropriate orders may be made not only to protect all the corporate rights, but also that through it the rights and equities of individual shareholders may be worked out and preserved.
The rule is stated in Volume 13, Fletcher Cyclopedia of Corporations, § 5929:
In legal effect, a stockholders' suit is one by the corporation conducted by the stockholders as its representative. The stockholder is only a nominal plaintiff, the corporation being the real party in interest. (Citing numerous cases.)
In Breswick & Company, et al. v. O. Henry Briggs, et al., D.C., 135 F.Supp. 397 (1955), it is said that in derivative suits the corporation is the real party in interest, although the real parties in litigation were the stockholders.
Appellants cite the oft-quoted case of Ross v. Bernhard, 396 U.S. 531, 90 S.Ct. 733, 24 L.Ed.2d 729 (1970) in which Mr. Justice White, speaking for the majority in a derivative suit, said:
The corporation is a necessary party to the action; without it the case cannot proceed. Although named as a defendant, it is the real party in interest, the stockholder being at best the nominal plaintiff.
In Brink v. DaLesio, 453 F.Supp. 272 (D.C., Md.1978), the corporation was said to be an "indispensable" party. See also Porter v. Sabin, 149 U.S. 473, 13 S.Ct. 1008, 37 L.Ed. 815 (1893); Brady v. Meenan, 204 App.Div. 390, 198 N.Y.S. 177 (1923); Koster v. Lumberman's Mutual, 330 U.S. 518, 67 S.Ct. 828, 91 L.Ed. 1067 (1947); Kohler v. McClellan, D.C., 77 F.Supp. 308 (1948). Fletcher Cyclopedia of Corporations, § 5997, states:
The corporation is a necessary defendant. In other words, the corporation on behalf of which the plaintiffs sue must be made a party defendant so that a decree may appropriately give the corporation the fruit of any recovery.
This alignment of parties is admittedly anomalous, as it places the individual plaintiff, seeking to protect a corporation from threatened acts or to redress those already accomplished, in an adversary position to the corporation he is defending. This incongruity is worthy of concern and it has been the object of some criticism:
... generally speaking, the benefits of the (derivative) suit are taken by the corporation and only indirectly by the person who files the bill, although the corporation is not even a co-plaintiff, but is to be found among the defendants. Indeed, a standard text writer regrets this very circumstance, opining that the innocent shareholders are disheartened, and the guilty encouraged, because of the rule that "the results of even a successful suit belong to the corporation, and not to the stockholders who sue." (Citing Beling v. American Tobacco Company, 72 N.J.Eq. 32, 65 A. 725.) Yale Law Journal, Volume 33, p. 580, "The Stockholders Suit."
In Cannon v. U. S. Acoustics Corporation, 398 F.Supp. 209 (N.D., Ill.1975), the opinion attributes the alignment of the corporation as a defendant in a derivative suit to "historical reasons," noting that in reality the corporation is the plaintiff, the stockholder being only a nominal plaintiff. See Miller v. American Telephone & Telegraph Company, D.C., 394 F.Supp. 58 (1975).
We conclude that the corporation is a necessary party to a derivative suit and, whether logical or not, the settled view is that the corporation is named as a defendant and entitled to service of process as any other defendant. Thus, we believe that the Court was correct in striking the Foundation as a plaintiff but was incorrect in finding that the Foundation was not the real party in interest. However, the correct result was reached and, therefore, we treat the issue as one of affirmance. Mobley v. Scott, 236 Ark. 163, 365 S.W.2d 122 (1963); Greeson v. Cannon, 141 Ark. 540, 217 S.W. 786 (1920).
It is also submitted that the Chancellor erred in finding that on the state of the pleadings the case was not certifiable as a derivative action under Rule 23.1. But the import of the finding is not clear, as the order appealed from does not dismiss the complaint. In fact, the memorandum opinion of the Court contemplates a trial on the merits and suggests specific dates for that purpose. Thus, the finding does not appear to affect the litigation at this stage, however, some comment is appropriate in interpreting Rule 23.1.
The appellees defend the finding on the argument that the complaint fails to meet the requirements of the rule in several respects: it fails to allege that Morgan was a member of the Foundation at the time of the acts complained of; it fails to identify the Foundation members; it fails to allege Morgan's efforts to obtain the action he desires from the directors or to explain his reasons for not making the effort; and that Morgan does not fairly and adequately represent the interests of members similarly situated.
Which, if any, of these the Court relied on is not explained. But we think in two respects the Court would be correct in finding the "present state" of the pleadings to be deficient. The rule does require that a plaintiff in a derivative suit allege that he was a stockholder or a member at the time of the transactions complained of and surely the appellant can be expected to make this allegation or explain why not. Also, the Court noted the lack of any allegation regarding members of the Foundation and we think the requirement of the rule...
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