Tachna v. Insuranshares Corporation of Delaware
| Decision Date | 29 November 1938 |
| Docket Number | No. 4629.,4629. |
| Citation | 25 F. Supp. 541 |
| Parties | TACHNA v. INSURANSHARES CORPORATION OF DELAWARE et al. |
| Court | U.S. District Court — District of Massachusetts |
John J. Burns, Edmund J. Brandon, and Nathan H. David, all of Boston, Mass., for plaintiff.
Lothrop Withington and Withington, Cross, Proctor & Park, all of Boston, Mass., for defendants Paine, Webber & Co.
Wm. A. Kneeland, of Boston, Mass., for defendant Insuranshares Corp. of Delaware.
S. Leo Solomont, Thomas F. Stanton, Ralph H. Robb, and Thomas W. Morris, all of Boston, Mass., pro se.
Arthur Berenson and Bernard Berenson, both of Boston, Mass., for defendants Ralph H. Robb and Thomas W. Morris.
Lothrop Withington, of Boston, Mass., for Paine, Webber & Co. and individual defendants who are named as members of that firm and have been served.
David J. Cohen, of Boston, Mass., for Wendell P. Sumner, Ex'r., et al., petitioners for leave to intervene.
David J. Cohen and Edward J. Flavin, both of Boston, Mass., for Barney Sheff and Jacob Bloom, petitioners for leave to intervene.
These petitions for leave to intervene as parties plaintiff appeared on yesterday's Motion List and were then argued.
The petitioners are Wendell P. Sumner and Anita N. Perkins, executors and trustees under the will of Fred J. Sumner, Barney Sheff and Jacob Bloom. They are all citizens of Massachusetts. This suit, in which each of them seeks to intervene as party plaintiff, was brought by a stockholder of the defendant Insuranshares Corporation of Delaware.
The federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, deal with Intervention of Right and Permissive Intervention. They provide that upon timely application anyone shall be permitted to intervene in an action: (1) When a statute of the United States confers an unconditional right to intervene; or (2) when the representation of the applicant's interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action; or (3) when the applicant is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof. Rule 24(a). There is no such applicable statute and the provision as to property in the custody of the court or officer of the court is not here relevant. It may well be that the petitioners will be bound by a judgment in this suit, Dana v. Morgan, 2 Cir., 232 F. 85, but there is no suggestion and I do not find that the representation of the petitioners' interest is or may be inadequate. There is here no absolute right of intervention.
As to Permissive Intervention, the rule provides that it may be had when an applicant's claim and the main action have a question of law or fact in common, a situation here present. But the granting or withholding of intervention is discretionary, and the rule goes on to say that in exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the parties. Rule 24 (b), 28 U.S.C.A. following section 723c. I do not understand the rule to mean that this is all that may be considered by the court in the exercise of its discretion.
A brief statement of the situation disclosed by the papers and the concessions of the parties may not be amiss. The action was brought by a corporate stockholder to enforce an alleged cause of action belonging to the corporation. The defendants are the corporation and persons alleged to have wronged it. The corporation is chartered in Delaware. The other defendants are Massachusetts citizens. The court's jurisdiction depends upon diversity of citizenship, — the venue upon United States Code, Title 28, Section 112, 28 U.S.C.A. § 112, which, so far as material, provides: "* * * no civil suit shall be...
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...was decided on December 15, 1939, and judgment was affirmed March 18, 1940. See 2 Cir., 109 F.2d 1018. In Tachna v. Insuranshares Corporation of Delaware, D.C., 25 F.Supp. 541, 542, the court held that the amendment of 1936 "deals with venue, — not with jurisdiction, — and does not authoriz......
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