Raab v. Taber Instrument Corp., 35

• Decision Date: 13 December 1976
• Docket Number: D,No. 35,35
• Citation: 546 F.2d 522
• Parties: Junia E. RAAB, Plaintiff-Appellant, v. TABER INSTRUMENT CORPORATION et al., Defendants-Appellees. ocket 76-7004.
• Court: U.S. Court of Appeals — Second Circuit

Page 522

546 F.2d 522

Junia E. RAAB, Plaintiff-Appellant, v. TABER INSTRUMENT CORPORATION et al., Defendants-Appellees.

No. 35, Docket 76-7004.

United States Court of Appeals, Second Circuit.

Argued Oct. 15, 1976.

Decided Dec. 13, 1976.

David E. Montgomery, Sacks, Montgomery, Molineaux & Pastore, New York City, Heffernan, Sweet & Murphy, Buffalo, N.Y., of counsel, David L. Sweet, Buffalo, N.Y., on the brief, for plaintiff-appellant.

Deanne C. Siemer, Buffalo, N.Y., Falk, Siemer, Glick, Tuppen & Maloney, Phillips Lytle, Hitchcock, Blaine & Huber, Hodgson, Russ, Andrews, Woods & Goodyear, and Brennan, Tesseyman, Zelman, Runfola & Brownstein, Buffalo, N.Y., of counsel, Robert M. Hitchcock, Victor T. Fuzak, and Ross L. Runfola, Buffalo, N.Y., on the brief, for defendants-appellees.

Before MOORE, ANDERSON and GURFEIN, Circuit Judges.

PER CURIAM:

Plaintiff, Junia E. Raab, appeals from (1) a judgment, dated November 25, 1975, dismissing his complaint for failure to prosecute in an action brought by him against Taber Instrument Corporation (TIC), Joseph P. D'Angelo, Benjamin Manasen, Warren J. Hildebrandt, Cindy R. Taber and Marine Midland Bank-Western, defendants-appellees; and (2) for an order entered upon the denial of a motion (March 7, 1976) to set aside the judgment of dismissal pursuant to Rule 60(b), F.R.Civ.P. The appeals have been consolidated for hearing.

The action (hereinafter referred to frequently as the "Raab" case) was, in brief, based upon Raab's claim that TIC on June 3, 1966 purchased his 600 shares of TIC stock for $8 a share ($4800), knowing, but failing to disclose, that serious negotiations were underway to sell TIC to Teledyne, Inc. for $50 a share.

Raab brought his action for rescission in May, 1967. At or about the same time, another stockholder, Joseph F. Less (Less) who had sold to TIC his 14,000 shares of TIC stock for $10 a share, brought suit for rescission. The differential between the amount received by Less and the Teledyne price was $40 a share or $560,000 for his 14,000 shares. Using comparable figures, and disregarding other factors, the Raab differential would have been $25,200. The same counsel represented both Raab and Less.

The two cases between May 8, 1967 (Less) and May 10, 1967 (Raab) and June 3, 1974 produced sundry depositions, notes of issue, calendar calls, pretrial conferences, etc. Obviously, the indignation which produced the actions in 1967 had not been transmitted into any hurried desire of the respective plaintiffs to recoup their alleged losses by pressing for early trials. However, this lethargic state changed in the first half of 1974 when, as stated in the District Court's order of June 14, 1974:

"At the June 3, 1974 meeting of attorneys with the court, it was agreed by all counsel that the trial in the case of Less v. Taber Instrument Corp. et al., Civil 1967-182, should proceed first and that the proceedings in the case of Junia E. Raab v. Taber Instrument Corp., et al., Civil 1967-190, be deferred until after the Less trial."

In November 1974 the Less case was settled for $560,000 (apparently the difference between the $10 and $50 a share for the...