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December 28, 1962

Robert C. CASSELMAN, Defendant

The opinion of the court was delivered by: MACMAHON

Plaintiff moves for an order enjoining defendant from prosecuting an action for declaratory judgment now pending in the United States District Court for the District of Massachusetts (Boston). Defendant cross-moves under 28 U.S.C. § 1404(a) for an order transferring this suit from New York to Boston on the ground that such transfer will be for the convenience of the parties and witnesses and in the interest of justice. Concededly, both actions are brought under Sections 16(b) and 27 of the Securities Exchange Act of 1934 (15 U.S.C. §§ 78p(b) and 78aa) and involve the same parties and issues.

Plaintiff seeks to compel defendant, an officer of plaintiff, to account for short-swing profits allegedly realized by him from purchases and sales of plaintiff's common stock within a period of less than six months. Defendant seeks a declaratory judgment in the Boston action as to his liability arising from the same transactions.

Prior to the institution of either action, defendant's Boston attorneys conferred with plaintiff's New York attorneys. There, as here, defendant denied liability taking the position that the transactions had been initiated in the mistaken belief that six months had elapsed, then cancelled, but completed by brokers without authority, and that in any event no profit had been realized. Plaintiff's attorneys, unimpressed, contended that defendant was, nonetheless, accountable to plaintiff. Quite unwary, defendant revealed his intention to bring a declaratory judgment action in Boston to resolve the question of his liability under Section 16(b). Accordingly, a complaint was prepared and a copy mailed to plaintiff's attorneys on October 9, 1962. Defendant's fidelity to his fiduciary duty of full disclosure was returned by plaintiff's race to this courthouse with its complaint on October 17, 1962, a half hour before defendant's action was filed in Boston. Despite plaintiff's rush, defendant was first in serving process in his Boston action.

 The sole basis for the injunctive relief sought by plaintiff is the fact that this action was commenced a half hour ahead of the one in Boston. *fn1" As a general rule, a federal district court which first obtains jurisdiction of the parties and issues will preserve its jurisdiction by enjoining proceedings involving the same parties and issues which were begun later in another district.

 Analysis of the cases shows, however, that weight is given not to inconsequential priority in filing time but to substantial commitment to the cause, usually pre-trial involvement for many months, by the court first acquiring jurisdiction. *fn2" Obviously, a second suit in such circumstances would cause a wasteful duplication of effort and work havoc with the orderly administration of justice. A court of equity, therefore, invokes its ancient power to enjoin a multiplicity of suits.

 Here, except for these motions, there is no commitment to this cause. Moreover, as defendant contends, plaintiff's slim priority is counterbalanced by the fact that jurisdiction over the parties was first obtained in the Boston action.

 The problem of whether to enjoin another action involving the same parties and issues, however, cannot be solved by blind application of a mechanical 'rule of thumb'. Rather, its solution requires a balancing not of empty priorities but of equitable considerations genuinely relevant to the ends of justice. This comports with the policy of the federal courts, to fashion relief '* * * to secure the just, speedy, and inexpensive determination of every action.' Rule 1, Federal Rules of Civil Procedure.

 A law suit is not a game but a search for truth. The ends of justice are served, not by giving one side a vested right to exhaust the other, but by affording both an equal opportunity to a full and fair adjudication on the merits.

 There can be no doubt, therefore, that in deciding whether or not to enjoin an action in another forum, a court of equity should prefer the forum which offers effective, convenient, inexpensive, and prompt relief to the one which portends the greater futility, inconvenience, waste, and delay. Kerotest Mfg. Co. v. C-O-Two Fire Equipment Co., 342 U.S. 180, 183, 72 S. Ct. 219, 96 L. Ed. 200 (1952); Telechron, Inc. v. Parissi, 197 F.2d 757, 762 (2 Cir.1952), cert. denied, 348 U.S. 860, 75 S. Ct. 86, 99 L. Ed. 678 (1954); Hammett v. Warner Brothers Pictures, 176 F.2d 145, 150 (2 Cir., 1949).

 The same criteria govern the decision of whether to transfer the cause under Section 1404(a). *fn3" As we shall soon show, a balance of the relevant factors strongly points to Boston as the more appropriate forum for this litigation. This brings us to the cross-motion for a change of venue.

 No substantial contact exists between this district and the parties or the transactions at issue. Plaintiff is a Delaware corporation and, although it maintains a small sales office in New York, its principal place of business is in Cambridge, Massachusetts. Its principal officers and a majority of its directors live there. It is the defendant's home, and it is there that he acted in the transactions involved. The brokers handling the transactions also have their office there. Defendant's bank is there, and both his and Polaroid's records are there.

 All of defendant's prospective witnesses reside in Massachusetts, and it seems likely that any for Polaroid also live and work there. Manifestly, such witnesses are not subject to the compulsory process of this court. But even if the witnesses are willing to travel to New York, the parties would be subjected to expense, the witnesses to inconvenience, and the trial, in all likelihood, to interruption and delay. All of this can be avoided by trial in Boston.

 It is true, however, as plaintiff contends, that the proposed testimony of some of the witnesses defendant expects to call is immaterial insofar as it relates to defendant's claimed inadvertent error in selling stock of the plaintiff in the mistaken belief that he had held it more than six months and his asserted non-use of 'insider' information. Magida v. Continental Can Company, 231 F.2d 843 (2 Cir.), cert. denied, 351 U.S. 972, 76 S. Ct. 1031, 100 L. Ed. 1490 (1956); Smolowe v. Delendo Corporation, 136 F.2d 231, 148 A.L.R. 300 (2 Cir.), cert. denied, 320 U.S. 751, 64 S. Ct. 56, 88 L. Ed. 446 (1943).

 The remaining testimony of these witnesses, going to whether defendant's orders to his brokers were cancelled and his instructions disobeyed, whether the transactions constituted purchases and sales under the circumstances, and, if so, whether profits were realized, appears relevant. Plaintiff argues, however, that such testimony could be presented by deposition, or the same evidence introduced by documents. In view of the issues raised by defendant, however, this case cannot be determined by documents alone. Depositions, deadening and one-sided, are a poor substitute for live testimony especially where, as here, vital issues of fact may hinge on credibility. In determining credibility, there is nothing like the impact of live dramatis personae on the trier of the facts. ...

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