Rogers v. Hill

• Decision Date: 29 October 1931
• Citation: 53 F.2d 395
• Parties: ROGERS v. HILL et al.
• Court: U.S. District Court — Southern District of New York

53 F.2d 395 (1931)

ROGERS v. HILL et al.

District Court, S. D. New York.

October 29, 1931.

Richard Reid Rogers, of New York City, pro se.

Chadbourne, Stanchfield & Levy, of New York City (William M. Parke, George W. Whiteside, and J. Arthur Leve, all of New York City, of counsel), for defendants.

WOOLSEY, District Judge.

First. The motion to remand is denied.

I. In this case plaintiff, a citizen of New York, brings suit as the actual and registered owner of 200 shares of the common stock of the American Tobacco Company, acquired in 1916, and 400 shares of the common stock B of said Company, acquired in 1925, against the defendant Hill, a citizen of New York, as president of the American Tobacco Company, and the defendants Penn, a citizen of North Carolina, and Mower, Neiley, and Roggio, citizens of New York, vice presidents thereof, and against the American Tobacco Company, a corporation of New Jersey, praying that the court should determine the fair and reasonable compensation of each of the said individual defendants for the years, 1921 to 1930, and that each of the said individual defendants be compelled to account for and pay over to the corporate defendant, American Tobacco Company, any amounts received in excess of such fair and reasonable compensation, whether received as fixed salary or as a profit participation under a by-law adopted at a stockholders' meeting of the American Tobacco Company, on February 21, 1912, and for an injunction against the American Tobacco Company to prevent and restrain it from paying to any of the said individual defendants in the future, any cash, or distributing to them any stock over and beyond the sums which might be fixed by the court as the reasonable compensation for their several services.

II. The fact that this complaint attacks the by-law above referred to, of February 21, 1912, does not, as the plaintiff suggests, prevent the causes of action against the various defendants from being separable. The question is whether, as a matter of pleading, the causes of action are so stated here as to make them separable.

It is clear to me that the causes of action are separably stated because (1) the amount received by each of the officers is separately attacked, and (2) each officer is asked for a separate accounting and appropriate subsidiary relief, and also (3) there is a prayer for an injunction against the American Tobacco Company based presumably on the theory that the by-law above referred to is illegal, and asking for an injunction against it making further payments thereunder.

Thus both in respect of the basis of the suit and in respect of the relief asked, the causes of action are separable.

It is noteworthy also that the plaintiff has by implication admitted the separability of the causes of action against the several defendants by omitting, as is shown on the face of the papers, to sue one of the five vice presidents of the American Tobacco Company who belongs to the same category and is subject to the same attack as the defendants Mower, Penn, Neiley, and Roggio.

III. The suit was removed at the instance of the American Tobacco Company, a corporation of New Jersey, on the ground of the separability of the cause of action of the state court on April 3, 1919, and the record on removal was filed in this court on April 4, 1931.

At a later date, April 20, 1931, Charles A. Penn, a resident of the state of North Carolina, filed his petition for removal, also on the ground of the separability of the cause of action. The record of the removal of his case was filed herein on April 20, 1931.

Both these removals are before me now on this motion.

IV. It is perfectly obvious that this action is not, as I understood the plaintiff to suggest at the argument, a proceeding quasi in rem against the by-law itself as, in effect, binding all the defendants into one bundle, but it is a controversy between Mr. Rogers and each of the several officers of the American Tobacco Company who is named as a defendant here, and also between Mr. Rogers and the company against which separate relief is sought.

There is not here an allegation of joint action or conspiracy on the part of the defendants, and, consequently, the same question does not arise as arose in a case...