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BRAND v. TISCH

April 7, 1966

Martha BRAND, Plaintiff,
v.
Laurence A. TISCH et al., Defendants


Herlands, District Judge.


The opinion of the court was delivered by: HERLANDS

HERLANDS, District Judge:

Defendants have moved for an order:

 
"(a) Pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, striking plaintiff's verification of the complaint and dismissing the complaint, for failure to comply with Rule 23(b) of the Federal Rules of [Civil] Procedure; and
 
(b) Pursuant to Rules 11 and 41(b) of the Federal Rules of [Civil] Procedure, striking plaintiff's attorneys [sic] certification of the complaint for failure to comply with Rule 11; and
 
(c) Pursuant to Rule 56 of the Federal Rules of [Civil] Procedure granting summary judgment for defendants against plaintiff, and for such other relief as the court may deem just and proper."

 The court will treat the motion's three subdivisions seriatim.

 I.

 That part of defendants' motion, made pursuant to Fed.R.Civ.P. 41(b) and 23(b), attacking the complaint as not properly verified is denied. We consider the Supreme Court's recent decision in Surowitz v. Hilton Hotels Corp., 383 U.S. 363, 86 S. Ct. 845, 15 L. Ed. 2d 807 (1966), reversing, 342 F.2d 596 (7th Cir. 1965), to be dispositive of this issue. See generally Comment, Verification of Complaint in Stockholders' Derivative Suits Under Rule 23(b), 114 U.Pa.L.Rev. 614 (1966).

 The plaintiff, Mrs. Brand, received in her capacity as a stockholder a proxy statement for the annual meeting of shareholders of Loew's Theatres, Inc., which was to be held on January 14, 1965. Embodied in that proxy statement was the recommendation of the "management" for a favorable vote on the Board of Directors' proposal to acquire the leasehold interest then held by Americana Hotel Operating Corp. in the Americana Hotel, Bal Harbor, Florida. Mrs. Brand attended the stockholders' meeting of January 14, 1965 and expressed her "displeasure" with the proposed acquisition by Loew's of the leasehold interest from Americana Hotel Operating Corp., a corporation whose stock was owned by Tisch Hotels, Inc., which, in turn, owned approximately 26 percent of the stock of Loew's Theatres, Inc. Laurence and Preston Tisch, personal acquaintances of Mrs. Brand, each owned 50 percent of the stock of Tisch Hotels, Inc. They were also members of Loew's Board of Directors. Subsequent to the stockholders' meeting of January 14, 1965, Mrs. Brand conferred with her attorney concerning the propriety and regularity of the proposed acquisition.

 In the Surowitz case, supra, the plaintiff perceived no indication of any possible irregularity in the notice she received from the Hilton Hotels Corp. announcing its plans to purchase a large amount of its own stock. She took the notice to her son-in-law, an attorney, "because she wanted it explained to her * * *." It was her son-in-law who was "disturbed by it" and who "straightway set out to make an investigation." Her son-in-law "talked the matter over" with another lawyer who was to represent her subsequently in her suit. They decided to investigate further; and they "pursued whatever avenues of information that were open to them." The Supreme Court's opinion does not indicate what those areas of information were in the Surowitz case, but the two attorneys decided that they had enough information to begin drafting a complaint, which they undertook to do after Mrs. Surowitz's son-in-law explained to her that in his opinion a cause of action existed and suggested the commencement of a derivative suit. Mrs. Surowitz "agreed for suit to be filed in her name." "Mrs. Surowitz verified the complaint, not on the basis of her own knowledge and understanding, but in the faith that her son-in-law had correctly advised her that the statements in the complaint were either true or to the best of his knowledge he believed them to be true."

 In the case presently before us, the plaintiff herself was the prime mover. As in Surowitz, "there is not one iota of evidence that * * * [Mrs. Brand or her attorney] sought to do the corporation any injury in this litigation." Nor is there any contention here that this is "a strike suit or anything akin to it," nor is there "one word or one line of actual evidence in this record indicating that there has been any collusive conduct or trickery by those who filed this suit * * *."

 In short, we interpret the Supreme Court to have held that the verification requirement of Fed.R.Civ.P. 23(b) is satisfied when a plaintiff verifies a complaint, not on the basis of his own knowledge and understanding, but on the basis of his good faith reliance on the advice of an advisor, whose qualifications and integrity are known to the plaintiff, that the statements in the complaint are either true or believed by the advisor, to the best of his knowledge, to be true. That test is undoubtedly satisfied in the case at bar.

 II.

 That part of defendants' motion, pursuant to Fed.R.Civ.P. 11 and 41(b), for an order striking plaintiff's attorney's certification of the ...


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