September 20, 1960
Hannah BUCHHOLTZ, Samuel Beloff, Samuel Wulwick, Philip Wulwick, Louis G. Wulwick, Florence Wulwick, Norman Wulwick, Faye Cottesfield, Ansi Charchat, Bernard Nemhouser, Harold Weitz, Frank Filetti, Frank Moratta, Gene A. Cass, Leo Goodfriend, Charles Sheldon, Phyllis Berens, Murray Levine, Plaintiffs
Lester G. RENARD, William W. Luman, James L. Garrity, George C. Alpauch, Henry Fullop, Nettie W. Kramer, Roycan Co., Herzog Co., Manuel D. Guzman Polanco, Geraud Bibo, Sylvia Berman, Samuel B. Ratoff, Selma H. Ratoff, Benjamin H. Lapin, Harris C. Lapin, Ada Lapin, Nancy Lapin, Sidney Orsek, Leon Entin, Frances Maloni, Gertrude Moskowitz, Ethel Jarozenski, Hilda Fink, Minnie Spawn, Clara Ladenheim, Joseph A. Lederer, Anne L. Renard, Philip Bateser, Henry G. Lubin, Stillman Elfield, David R. Weisner, C. Law McCabe, Jeanette Weisman, Marilyn Weisman, Herman L. Weisman, Edward Weisman, Robert D. Weisman, Caroline Johann, Carle Erbe, Oscar L. Hausner, Consolidated Enterprises, Ltd., A. K. Swann, The National Company, Ltd., and Universal Mineral Resources, Inc., Defendants
The opinion of the court was delivered by: CASHIN
In this case the defendants move --
(1) to dismiss the amended complaint pursuant to Rule 8(e) of the Federal Rules of Civil Procedure, 28 U.S.C.A., on the ground that it is not simple, concise and direct and that each claim is not set forth in a separate count; or
(2) to dismiss the first cause of action pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted; or
(3) pursuant to Rule 12(e) for a more definite statement as to the date when certain plaintiffs received delivery of the stock of Universal Mineral Resources, Inc.; and
(4) and (5) to dismiss pursuant to Rule 12(b)(6) the second and third causes of action for failure to state a claim upon which relief can be granted; or
(6) pursuant to Rule 12(f) to strike certain allegedly redundant, immaterial, impertinent and scandalous matters in the amended complaint.
Generally, this court does not write long and extended opinions on motions of this type. However, in this case defendants' motion is in reality six separate motions and in order to fully answer each one it is necessary to discuss them at some length.
This action is brought by various stockholders of Universal Mineral Resources, Inc., a New York corporation, against said corporation, The National Company, Ltd., a Panama corporation, three other corporate defendants and various officers, directors and stockholders thereof. The amended complaint, which contains forty-three numbered paragraphs and covers sixteen typewritten pages, alleges that defendants conspired to sell unregistered securities to the public in violation of 5(a), 5(c), 12(1), 12(2) and 17(a) of the Securities Act of 1933, 15 U.S.C.A. 77a et seq., and 10(b) of the Securities Exchange Act of 1934, 15 U.S.C.A. 78a et seq.
The first part of defendants' motion is to dismiss the amended complaint under Rule 8(e) of the Federal Rules of Civil Procedure because it is not simple, direct and concise and each claim is not set forth in a separate count. Defendants contend that, because plaintiffs' first and third causes of action assert claims under more than one section of the Securities Act of 1933 and Securities Exchange Act of 1934, each claim is not set forth in a separate count. I do not think there is any merit in defendants' position nor have they cited any precedent for it. Many of the sections of these acts have little independent effect but depend on other sections for their full meaning. Moreover, the motion under Rule 8(e) does not go to the sufficiency of the complaint and noncompliance with this rule would not be grounds for dismissal. As we said in International Tag & S. Co. v. American Sales-book Co., D.C.S.D.N.Y.1943, 6 F.R.D. 45, 47. --
'* * * The complaint could very well state a cause of action and still conflict with the requirements of those rules. * * *'
The first part of defendants' motion is denied.
Plaintiffs' first cause of action alleges a violation of §§ 5(a), 5(c) and 12(1) of the Securities Act of 1933 (15 U.S.C.A. 77e(a) and (c), 77l).
Defendants' motion to dismiss the first cause of action under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted is based upon three claims: not identify the particular person from not identify the particular ...
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