United States v. NORWOOD CAPITAL CORPORATION

• Decision Date: 18 August 1967
• Docket Number: Civ. A. No. 67-468.
• Parties: UNITED STATES of America, Plaintiff, v. NORWOOD CAPITAL CORPORATION, a South Carolina Corporation, Defendant.
• Court: U.S. District Court — District of South Carolina

273 F. Supp. 236

UNITED STATES of America, Plaintiff, v. NORWOOD CAPITAL CORPORATION, a South Carolina Corporation, Defendant.

Civ. A. No. 67-468.

United States District Court D. South Carolina, Greenville Division.

August 18, 1967.

Margaret S. Rogers, Attorney, Small Business Administration, Washington, D. C., and Robert O. DuPre, Asst. U. S. Atty., Greenville, S. C., for plaintiff.

J. D. Todd, Jr., of Leatherwood, Walker, Todd & Mann, Greenville, S. C., for defendant.

HEMPHILL, District Judge.

Plaintiff in this action is one and the same as the Small Business Administration which was created by Congress in 1958.¹ It seeks a decision that United States Courts have exclusive jurisdiction over small business investment companies,² particularly defendant. Incidental to such decision plaintiff seeks relief in the form of injunction against all officers, agents, et cetera, to prevent disbursement of any of defendant's funds, the encumbering of defendant's assets or "further violating" the Small Business Act or its regulations, and urges that the Small Business Administration be appointed receiver to liquidate defendant. Other relief is sought, and is of no moment to this decision. Plaintiff insists that to effect the congressional intent of authority in SBA and exclusive jurisdiction of United States Courts, that all South Carolina State Court proceedings now in process and involving defendant be stopped and further progress enjoined. Defendant (receiver) argues that the Court of Common Pleas for Greenville County, South Carolina properly has jurisdiction, a receiver has been appointed and proper bond supplied, and that SBA has participated in the proceedings, has not appealed from adverse rulings on its motion to vacate the State Court appointment of the receiver. Through the courtesy of the office of Clerk of Court for Greenville County this court has been furnished the official records of proceedings there. A review of the same is appropriate to this determination.

It appears that J. W. Norwood, III, President and principal stockholder of defendant, on March 1, 1967 filed suit against defendant in the Court of Common Pleas for Greenville County, South Carolina, in which he alleged:

That heretofore, to-wit, on the 31st day of July, 1961, the Defendant sold to the Small Business Administration, an agency of the Federal Government, subordinate debenture in the sum of One Hundred Fifty Thousand Dollars ($150,000.00) with stated payments beginning ten (10) years after purchase and on the 29th day of January, 1962 executed and delivered a note and loan agreement unto the Small Business Administration whereby, for value received, agreed to pay to the Small Business Administration the sum of One Hundred Fifty Thousand Dollars ($150,000.00) on or before the 29th day of January, 1967.

That by the terms of the subordinated debenture the Small Business Administration has the right to declare the entire sum due and payable upon default of any obligation of the Defendant and the Defendant has been unable to make payment of the note due January 29, 1967.

That as of the 14th day of February, 1967 the Defendant was indebted to the Small Business Administration upon the debenture in the sum of One Hundred Thirty-seven Thousand, Five Hundred Thirteen and 89/100 Dollars ($137,513.89) and was indebted upon the said note in the sum of One Hundred Thirty-eight Thousand, Fifty-five and 56/100 Dollars ($138,055.56).

That the Defendant is indebted to the plaintiff for monies advanced in the sum of Three Thousand, Five Hundred Dollars ($3,500.00) and the further sum of Fourteen Thousand Dollars ($14,000.00) as an endorsee upon a note to Southern Bank and Trust Company.

That the plaintiff is informed, believes and alleges that the assets from the Defendant corporation have a value of less than One Hundred Fifty Thousand Dollars ($150,000.00).

He asks that a receiver be appointed and that he have judgment for the $17,500 allegedly due him. On the same day, March 1, 1967³ defendant answered admitting inability to pay its debts. On March 2 the State Circuit Judge appointed a receiver. On March 23rd the state judge issued a stay of proceedings to allow the United States (SBA) to intervene. On July 100, 1967 the State Court issued its order refusing SBA's motion to vacate the order of March 2 appointing receiver. Apparently SBA did not appeal from the order of July 10, 1967.

On July 19, 1967 plaintiff filed suit in the United States District Court asking the relief here pursued. Although the time for response or answer had not elapsed, attorney for the receiver graciously appeared at a hearing before this court in which plaintiff presented its "Motion to stay receivership proceedings in the State Court." Hearing was had July 20, 1967.

The Small Business Investment Act of 1958, as amended, 15 U.S.C. §§ 661 et seq. and 1345, prohibits the dissolution of, or forfeiture of its franchise or benefits, pending this court's adjudication of the above entitled action and vests this court with jurisdiction over the defendant and its assets, wherever located, pending such an adjudication.⁴

The jurisdiction of this court arises under those Acts of Congress and section 1345⁵ of the Judicial Code conferring jurisdiction on this court of all civil suits or proceedings commenced by the United States, or by any agency or officer thereof, expressly authorized by Congress to sue. Section 2283 of the Judicial Code (28 U.S.C. § 2283) gives authority to a court of the United States to grant an injunction to stay proceedings in a State court where such injunction is expressly authorized by Act of Congress, or where necessary in aid of the United States Court's jurisdiction, or essential to protect or effectuate its judgments.

Defendant, Norwood Capital Corporation, was incorporated and licensed solely for the purpose of operating under the Small Business Investment Act of 1958, as amended. Sections 308(d) and 311 of the aforesaid Act set forth the relief available to the Small Business Administration whenever SBA determines that a small business investment company is in violation of the Act and that its license be revoked and the small business investment company be removed from the small business investment program. In these circumstances, sections 308(d)⁶ and 311⁷ vest this court with jurisdiction to take care of and liquidate the offending licensee from the small business investment program.

Plaintiff insists that the receivership remedy afforded the plaintiff-creditor in the State court and that court's assertion of jurisdiction over the business and assets of the defendant, Norwood Capital Corporation, is incompatible with the statutory relief prescribed by Congress for the plaintiff in the above-entitled action.

If the suit in State court were one in which the forfeiture of the license was indicated by allegation, or prayer, of State court pleadings, the wording of the statute is such as to negate that power in the State court. Such is not the case. An examination of the authority of SBA is in order at this point in the court's consideration.

Small Business Investment Corporations are incorporated and licensed solely to operate under the Act and revocation of the license under section 308(d) forces a small business investment corporation to cease all business operations. Hence revocation forces the company to wind up its business affairs and liquidate. Moreover, violations of the Act or Regulations warranting the drastic remedy of license revocation are generally conduct which jeopardize the program funds of the small business investment corporation (both federal and private funds), whether through misuse or mismanagement of the funds,⁸ and the Small Business Administration's investment in a small business investment corporation is generally equal to, if not in excess of, the private investments, most of which has priority over all other indebtedness of the small business investment corporation (31 U.S.C. §§ 191 and 192). Therefore after an adjudication of violations, the Small Business Administration's investment or money judgment from a federal court, is best protected if liquidation occurs prior to the license revocation and if such liquidation is conducted under close regulatory control. In these circumstances, the final act of adjudication is revocation and a federal receivership to administer the assets during the 308(d) proceedings is a receivership to liquidate.

The legislative history of sections 308(d) and 311 is clear that the purpose of the federal receivership was to protect the assets pending the Small Business Administration's recovery on its investment, as well as to permit discovery of any past abuses of program funds. Under the original 1958 Act and except for its general relief as a government agency to sue in federal courts to enforce its creditor's rights, the only enforcement procedure available to the Small Business Administration was application to the federal courts for revocation of the license upon proof of a violation and issuance of a restraining order to enjoin existing violations. Experience showed, however, that revocation of the license simply abrogated the Small Business Administration's regulatory control over the licensee's operations.⁹

In 1961, the Small Business Administration asked Congress to authorize the federal courts, upon a request by the Small Business Administration, "to take possession of the assets of violators and appoint trustees or receivers and manage the affairs of such SBIC's."¹⁰ At the conclusion of these hearings, Congress granted the Small Business Administration's request for federal receivership, but, in such proceedings against offending SBICs, vested the federal courts with "exclusive" jurisdiction (preemptive control) over the offending SBIC and its assets; and gave the courts additional authority to enjoin future violations of the Act (section 311(a) of the Act). At this...