Pioche Mines Consolidated, Inc. v. Dolman

• Citation: 333 F.2d 257
• Decision Date: 03 August 1964
• Docket Number: No. 17709,18192.,17709
• Parties: PIOCHE MINES CONSOLIDATED, INC., Ely Valley Mines, Inc., and John Janney, Appellants, v. Helen DOLMAN et al., Appellees. John JANNEY, Appellant, v. Helen DOLMAN, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

333 F.2d 257 (1964)

PIOCHE MINES CONSOLIDATED, INC., Ely Valley Mines, Inc., and John Janney, Appellants, v. Helen DOLMAN et al., Appellees.

John JANNEY, Appellant, v. Helen DOLMAN, Appellee.

Nos. 17709, 18192.

United States Court of Appeals Ninth Circuit.

May 21, 1964.

Rehearings Denied August 3, 1964.

COPYRIGHT MATERIAL OMITTED

Morse & Graves, Las Vegas, Nev., Roscoe H. Wilkes, Pioche, Nev., T. David Horton, Arlington, Va., for appellants.

Theodore A. Kolb, Gerald J. O'Connor, Sullivan Roche, Johnson & Farraher, San Francisco, Cal., Alvin N. Wartman, Las Vegas, Nev., for appellees.

Before HAMLEY, BROWNING and DUNIWAY, Circuit Judges.

DUNIWAY, Circuit Judge.

Before us are 10 appeals, 9 in No. 17,709 and 1 in No. 18,192, all of which have been consolidated here. To a considerable extent, they are an imposition on this Court. Appellants' opening brief is 338 printed pages long, not counting 23 pages of appendix. It bears the characteristic stigmata of a forensic effort produced under the influence of strong emotion and written in the vocative. It is an unbridled attack on appellees, their counsel, and the trial judge. It starts with an assertion, repeated ad nauseam, that the judge accepted and acted upon allegations that he knew to be false, and goes on from there, piling up charges on nearly every page. Material under the heading: "Questions presented" begins on page 36 and continues to page 87. There are set forth some 298 "questions" supposedly raised by the appeals. Nearly all of them are loaded with assertions, innuendoes and assumptions. We cite two examples, chosen at random, that are fairly typical:

"May a court, in granting an intervention, prejudge contested issues"?

"May a court conduct proceedings in an atmosphere hostile to one side"?

How such "questions" can help us to decide this case is beyond our comprehension.

The "specifications of error on which appellants rely" begin on page 87, and continue to page 151. There are 29 numbered "specifications," but each has many subdivisions, and they total 433. Needless to say, this type of specification of error is extremely burdensome rather than helpful to this Court. Appellants' printed reply brief is of 63 pages, and is accompanied by a two volume typewritten "supplement" of 276 pages. Were it not for the fact that to do so would further prolong this already protracted litigation, we would strike these "briefs" from the files.

One of the difficulties that confronted the trial judge, and that confronts us in trying to review what he did, is that appellants and their counsel have engaged throughout, in a course of obstruction and obfuscation. Their entire efforts seem to have been devoted to resisting discovery and to resisting trial. Their conduct exemplifies the old saying: if you can't try the case, try your opponent; if you can't try your opponent, try his lawyer; if you can't try his lawyer, try the judge. Appellants claimed from the beginning that the two actions constituted an abuse of process, and in their efforts to persuade the court to accept that view they subjected the court to a veritable blizzard of motions and papers, some bearing such truly anomalous titles as "Application for relief from misuse of court process obtained by fraud." What is sometimes called the "Clerk's transcript" consists of five volumes containing 1473 pages of assorted pleadings, motions, affidavits, exhibits and miscellaneous other papers, some of which were never before the trial court.

Throughout, appellants' position has been that the litigation is totally without merit. One cannot help wondering why, if this is so, appellants did not promptly answer, press for an early trial, and get a judgment to that effect. The charges of fraud, corruption, and worse, that counsel so freely flings at appellees, their counsel, and the court, are not supported by the record.

We will endeavor, within what we hope will be reasonable limits, to extract from the record, and to decide, those questions that seem to us to be worthy of consideration. To the extent that we do not discuss the "specifications of error" they are hereby rejected; to the extent that we do not answer the "questions presented," we reject them as not requiring answers.

1. The appeal in No. 18,192.

In No. 18,192 there is but one appeal. That action, numbered 310 below, was begun by appellee Dolman as a stockholder of Ely Valley Mines, Inc., a Nevada corporation (Ely), and Pioche Mines Consolidated, Inc., a Nevada corporation (Pioche), and on their behalf, seeking access to the records of the corporations. The defendants are John Janney, President, and one Calhoun, Secretary, of each of the two corporations. An amended complaint was filed on February 18, 1960, accompanied by a motion for an order granting access to the records, supported by an affidavit. The court, on the same day, granted the motion by an ex parte order. Armed with the order, Dolman did obtain an examination of the records.

No further action appears until over a year later, on March 13, 1961, when Janney filed an answer and counterclaim, charging that Dolman, in bringing the action, "perpetrated a complexity of frauds upon the Court." There follows a long statement of the alleged frauds, and a counterclaim, based upon similar charges. It names as counter-defendants Dolman and her attorneys. It contains some 13 counts, which pray for various amounts of damages, ranging from $18,000 to $800,000, plus large sums of punitive damages based upon alleged obtaining of money by false pretenses (count one), obtaining property for services not performed (count two), and by fraud (count three), interference with business relationships (counts four, five), stirring up stockholders and bringing malicious lawsuits (count six), abuse by counsel of information obtained in confidence (counts seven, eight), and libel (counts nine, ten, eleven, twelve and thirteen). This interesting document occupies pages 378 to 467 of the transcript. It was accompanied by a motion to bring in the attorneys as cross-defendants. Simultaneously, counsel filed an affidavit charging the trial judge with prejudice.

Appellee Dolman filed an answer to the counterclaim on April 14, 1961. On April 20, she noticed the taking of Janney's deposition, at Las Vegas, on May 8, 1961. On May 4, 1961, Janney moved for an "order to show cause". In the motion, he sought an injunction against appellee Dolman that would prevent her "from making or circulating any further false statements" concerning him and the corporation, and other similar relief. A dismissal of the action and an injunction against further actions were also demanded. Much of this document is a rehash of the counterclaim.

Appellant Janney claims that on May 23, 1962, the trial judge refused to hear this motion, and the appeal is from this purported refusal. The record, however, shows only a request that the court set a date to hear it. The court said it could not do it "this morning." Court and counsel then reverted to a consideration of other matters, in another case. No order was made. There is nothing from which to appeal. The appeal should be dismissed.

2. The appeals in No. 17,709.

In No. 17,709, there are nine appeals. The action, No. 311 in the trial court, was filed by Dolman on February 20, 1960. It is a stockholders' derivative action, brought on behalf of stockholders of Pioche and Ely against them as nominal defendants, and Janney and a number of Does. It alleges that plaintiff is a citizen of California, that the two corporations are Nevada corporations, and, on information and belief, that Janney is a resident of Virginia. In substance, it is charged that Janney is president and in control of both corporations, that they have Nevada properties worth over $2,000,000, that Janney has permitted taxes to become delinquent and refuses to pay them and has failed to pay wages of employees, and that as a result the properties may be lost. It is also charged that Janney has mismanaged the corporations, and diverted their assets to his own use, damaging the corporations in an amount exceeding $1,000,000.

On April 4, 1960, the two corporations answered. In addition to denials, the answer alleged that Janney resided in Nevada, charged Dolman with obtaining her stock by fraud, and alleged that the action was prosecuted for purposes of harassment. It contains a counterclaim, making similar charges. It also alleged failure to comply with Rule 23(b), F.R. Civ.P.

On August 1, 1960, the corporations filed a document entitled "application for relief from misuse of court process obtained by fraud." This charges, in substance, that the action, and the prior action No. 310, were strike suits, filed following refusal of Janney to yield to certain extortionate demands by appellee Dolman. It asks for a citation, purportedly under 18 U.S.C. § 401, directed to Dolman, with a view to punishing her for contempt.

On August 3, 1960, Dolman answered the counterclaim. On August 26, she filed a reply to the "application for relief." On October 17, 1960, she asked leave to file an amended complaint. On October 19, she noticed the taking of the depositions of the corporations, by taking the deposition of Janney, on October 27, at the office of Pioche, in Pioche, Nevada. The notice required that the companies produce certain records. Janney did not appear. On November 3, Dolman moved for the corporations' default by reason of Janney's failure to appear.

The case (No. 311) was consolidated with certain other pending cases by an order made November 3, 1960. These are Fidelity-Philadelphia Trust Company v. Pioche Mines Consolidated, old No. 101, now No. 1221 (the Fidelity case), action No. 310, and Dodd, et al. v. Pioche Mines Consolidated, No. 1523 (the Dodd case). This order also set aside the hearing dates of all pending matters, and set pretrial for December 8. All parties were directed to submit, within 14 days, memoranda as...