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LOUGHMAN v. PITZ

November 9, 1939

LOUGHMAN
v.
PITZ et al.



The opinion of the court was delivered by: BYERS

BYERS, District Judge.

This is a motion unsupported by affidavit, by some of the above-named defendants, for the following relief:

(1) For an order dismissing the plaintiff's complaint on the ground that, as to the moving defendants, it fails to allege facts sufficient to constitute cause of action, or

 (2) In the alternative, for an order striking out the three causes of action on the ground that, as to those defendants, the said three causes of action do not state facts sufficient to constitute a cause of action, or

 (3) In the alternative, for an order striking out paragraphs 43 and 49, which are said to be ambiguous, repetitious and redundant, or

 (4) In the alternative, for an order to make the plaintiff's complaint more definite and certain, and for such other and further relief, etc.

 The action is brought by the receiver of the National Bank of Ridgewood against nineteen individuals, of whom eighteen are said to have been directors of the bank, and the nineteenth is the executrix under the will of Samuel Redfern, deceased, who is also said to have been a director.

 There are three causes of action pleaded, the first of which is comprehended in the first forty-two paragraphs of the complaint; the second, in paragraphs 43 to 48, inclusive, and the third, in paragraphs 49 to 61, inclusive.

 The theory of the action is that all of the defendants violated their duty to diligently and honestly administer the affairs of the bank, with the result that the institution suffered the loss of $483,000.00 during the period between April 19, 1926, and August 29, 1931.

 This motion is made on behalf of nine of the defendants named, and seemingly has not been drawn with reference to Rule 12 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, and the simple thing to do would be to deny it for that reason.

 However, it is equally possible to attempt to assist the parties by taking the motion under advisement as though it had been properly framed, and to make a disposition of it which accords with the ostensible importance of the litigation, and the serious nature of the issues which will have to be disposed of sooner or later.

 Since there is no supporting affidavit, it is impossible to state when the action was begun by the filing of the complaint, or when service was effected on the various defendants who make this motion.

 The complaint has been examined on the theory that the motion is made under Rule 12, paragraph (b), subdivision (6), namely, that there is a "failure to state a claim upon which relief can be granted".

 As to that, it is convenient to comment upon the pleading according to the grouping adopted in the brief submitted for the said defendants. They say that paragraphs 1 to 7, inclusive, contain evidentiary facts which may or may not be relevant.

 These allegations disclose the status of the plaintiff as receiver, the organization of the National Bank of Ridgewood, its opening, maintenance of business, and its membership in the Federal Reserve System; the authorized issued and outstanding capital stock of the bank; its alleged surplus on March 6, 1926; the arrangement with the Richmond National Bank in August of 1931, whereby the latter took over and assumed the deposits and other liabilities of the Ridgewood Bank; the execution of a note by the latter in the sum of $1,172,757.36, and the deposit of Ridgewood Bank assets with the Richmond National Bank, as collateral to secure the payment of the said note.

 It cannot be said that the foregoing are obviously irrelevant.

 Paragraph 8 deals with the taking over by the Richmond National Bank of the collatered referred to in paragraph 7, and the ensuing events which resulted in an indebtedness of the Ridgewood Bank to the Richmond Bank as evidenced by a judgment of October 15, 1936, in the sum of $289,269.51.

 The same remark applies to this as to the earlier paragraphs.

 Paragraphs 9 to 19, inclusive, are criticised as containing "nothing else but pure evidence".

 What is probably meant is that those paragraphs contain statements of fact which will have to be either proven or admitted, for the purpose of establishing the foundation upon ...


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