United States District Court, Southern District of New York
February 27, 1990
FACIT, INC., PLAINTIFF,
KRUEGER, INC., DEFENDANT AND COUNTER-PLAINTIFF, V. FACIT, INC., COUNTER-DEFENDANT, HUMAN FACTORS TECHNOLOGIES, INC., ERICSSON INFORMATION SYSTEMS, AB, TOM JAHN AND ALAN MORSE, ADDITIONAL DEFENDANTS ON COUNTERCLAIMS.
The opinion of the court was delivered by: Keenan, District Judge:
Before the Court is the motion of defendant and
counter-plaintiff Krueger, Inc. ("Krueger") for an Order vacating
an Order dated April 13, 1987 in which the Court granted the
motion to dismiss of third-party defendants Tom John and Alan
Morse for lack of personal jurisdiction. Fed.R.Civ.P. 60. Also
before the Court is a motion for partial summary judgment by
Facit, Inc. ("Facit"), Human Factors Technologies, Inc. ("HFT")
and Ericsson Information Systems, AB ("Ericsson") pursuant to
Federal Rule of Civil Procedure 56.*fn1
The facts of this case are set forth in a thorough decision
reported at 657 F. Supp. 1069 (S.D.N.Y. 1989) (Walker, J.) and
will be summarized for purposes of this discussion.
Plaintiff Facit is a distributor of office furniture referred
to as "computer support furniture." Facit is incorporated under
the laws of Delaware with its principal place of business in New
Hampshire. Defendant Krueger is a Wisconsin corporation with its
principal place of business in Wisconsin, and also manufactures
computer support furniture. Third-party defendants Jahn and
Morse, both former Facit employees, currently serve as officers
of third-party defendant HFT.
Facit initiated this suit in 1986, alleging that Krueger
breached a 1983 settlement agreement with it by failing to make
payments due under the settlement. Krueger counterclaimed,
alleging that Facit, together with the additional defendants on
counterclaims, was responsible for breaching the 1983 agreement.
Pursuant to the agreement, Krueger had exclusive rights to
manufacture the "920 Series," a specific line of computer support
furniture. Krueger alleges that Facit violated Krueger's
exclusive marketing rights under the agreement by selling and
distributing the "Generation III" line of computer support
furniture, which Krueger alleges is a virtual copy of the 920
In January 1984, the parties entered into an agreement settling
litigation commenced by Krueger in the United States District
Court for the Eastern District of Wisconsin. According to the
settlement, Facit agreed to discontinue selling the Generation
In April 1984, HFT was incorporated under the laws of New
Hampshire. In May 1984, HFT purchased the Facit Furniture
Division. Krueger alleges that HFT was founded by Facit for the
purpose of distributing the Generation III line, in violation of
the settlement agreement. Krueger's counterclaims allege tortious
interference with contractual relations against Tom Jahn, Alan
Morse and HFT. Krueger also alleges unfair competition against
Facit and HFT.
I. Rule 60(b) Motion
Krueger bases its motion to vacate on the ground that the April
13, 1987 Order was premised on the "fiduciary shield" doctrine,
which subsequently was held by the New York Court of Appeals to
be unavailable to defeat personal jurisdiction in New York. See
Kreutter v. McFadden Oil Corp., 71 N.Y.2d 460, 527 N.Y.S.2d 195,
522 N.E.2d 40 (1988). As stated in Kreutter, the fiduciary shield
doctrine "provides that an individual should not be subject to
jurisdiction if his dealings in the forum State were solely in a
corporate capacity." 527 N.Y.S.2d at 199, 522 N.E.2d at 44.
The following facts are pertinent to this discussion. On April
13, 1987, Judge Walker issued a decision granting Jahn and
Morse's motion to dismiss for lack of personal jurisdiction. On
March 29, 1988, the New York Court of Appeals decided Kreutter.
On July 25, 1988, upon HFT's request, Judge Walker recused
himself from the case. On August 4, 1988, Krueger wrote to Judge
Walker requesting that he decide a pending discovery motion
regardless of his recusal. On December 13, 1988, Krueger wrote to
Judge Walker requesting a pre-motion conference for a motion to
vacate his prior Order. The case was re-assigned to Judge Keenan
on February 7, 1989. A conference was held with Judge Keenan on
March 7, 1989, during which a motion schedule was determined.
Krueger filed its Rule 60(b) Notice of Motion on March 13, 1989.
Krueger brings its motion under Rule 60(b) without identifying
a particular subsection. In its supporting brief Krueger argues
that 60(b)(5) and (6) apply, and in its reply brief it argues
that 60(b)(1) applies. Rule 60(b) provides:
On motion and upon such terms as are just, the court
may relieve a party or a party's legal representative
from a final judgment, order, or proceeding for the
following reasons: (1) mistake, inadvertence,
surprise, or excusable neglect; . . . (5) the
judgment has been satisfied, released, or discharged,
or a prior judgment upon which it is based has been
reversed or otherwise vacated, or it is no longer
equitable that the judgment should have prospective
application; or (6) any other reason justifying
relief from the operation of the judgment. The motion
shall be made within a reasonable time, and for
reasons (1), (2), and (3) not more than one year
after the judgment, order, or proceeding was entered
A motion under Rule 60(b) is addressed to the discretion of the
court, and the Rule attempts to strike a proper balance between
the conflicting principles of the finality of litigation and that
justice should be done. C. Wright & A. Miller, Federal Practice
and Procedure § 2851 at 140 (1973 & Supp. 1989). Courts may
consider equitable principles when determining a Rule 60 motion.
Rule 60 is not, however, to be used as a substitute for appeal.
The Court must first determine under which subsection of Rule
60(b) Krueger's motion falls. It has been held that Rule 60's
catch-all provision found in 60(b)(6) may be used "only if other,
more specific grounds for relief encompassed by the rule are
inapplicable." Maduakolam v. Columbia University, 866 F.2d 53, 55
(2d Cir. 1989). Because the Court finds that Krueger's motion
falls under Rule 60(b)(1), the other two subsections referred to
need not be addressed.
Rule 60(b)(1) allows for relief from a final judgment, order or
proceeding for "mistake, inadvertence, surprise or excusable
neglect." Krueger argues that 60(b)(1) applies because Judge
Walker made a mistake in finding that New York recognizes the
fiduciary shield doctrine to defeat the assertion of personal
jurisdiction under New York's long-arm provision. Krueger
indicates that the Kreutter court did not change New York law
with its decision, but held that there is not and never has been
a fiduciary shield doctrine in New York. See Kreutter, 527
N YS.2d at 200-02, 522 N.E.2d at 45-7 ("none of our prior
decisions have adopted the fiduciary shield doctrine"). Jahn and
Morse argue that the prior decision of the Court was not a
"mistake" in that the decision was made in reliance on cases of
this Circuit which have applied the fiduciary shield doctrine,
and that therefore this motion cannot fall under Rule 60(b)(1).
Alternatively, Jahn and Morse argue that under Rule 60(b)(1),
the motion is untimely. A time limitation is placed on motions
made under subsection (1): "The motion shall be made . . . not
more than one year after the judgment, order, or proceeding was
entered or taken." The one year period has been described by the
Second Circuit as an "absolute one-year bar." Amoco Overseas Oil
Co. v. Compagnie Nationale Algerienne de Navigation,
605 F.2d 648, 656 (2d Cir. 1979). Krueger points out, however,
and the Court finds, that because the April 13, 1987 Order
dismissed only some of the additional defendants on
counterclaims, it was not a final and appealable order. 28 U.S.C. § 1291.
See C. Wright, Federal Courts § 98 at 660 (4th ed. 1983).
The one year limitation period for claims under Rule 60(b)(1)
therefore cannot begin to run until a final judgment is entered.
See Max M. v. Thompson, 585 F. Supp. 317, 321 (N.D.Ill. 1984). The
Court further notes that, although the motion to vacate was filed
almost one year after the Kreutter decision was issued, the
intervening recusal of Judge Walker as well as the delay in the
re-assignment of this case present extenuating circumstances
under which delay is excusable. The Court thus finds Krueger's
motion to have been timely filed.
While it has been held that "a change in decisional law is not
grounds for relief under 60(b)(6)," Travelers Indem. Co. v.
Sarkisian, 794 F.2d 754, 757 (2d Cir.), cert. denied,
479 U.S. 885, 107 S.Ct. 277, 93 L.Ed.2d 253 (1986), a different result has
occurred in Rule 60(b)(1) cases. See G & T Terminal Packaging Co.
v. Consolidated Rail Corp., 646 F. Supp. 511 (D.N.J. 1986), aff'd,
830 F.2d 1230 (3d Cir. 1987), cert. denied, 485 U.S. 988, 108
S.Ct. 1291, 99 L.Ed.2d 501 (1988); Max M. v. Thompson,
585 F. Supp. 317 (N.D.Ill. 1984). The decision of the New York Court
of Appeals finding that the fiduciary shield doctrine does not
and has never existed in New York is certainly persuasive on this
motion to vacate the April Order which relied on that doctrine.
The Court also finds that certain equitable factors weigh in
favor of vacating the April Order. Although substantial discovery
in this case has been conducted, a motion for summary judgment is
pending, see discussion infra, and thus no trial date had
previously been set nor have pre-trial materials been filed.
Morse and Jahn are employed by HFT and have been represented by
HFT's counsel throughout this litigation. The prejudice to Morse
and Jahn in reinstating them as defendants on counterclaims is
minimal. In fact, Morse and Jahn suggest an option for Krueger:
commence a suit against them in New Hampshire. The result would
then be two suits in two separate jurisdictions based on the same
facts and the same evidence. Trying Morse and Jahn in the same
forum with HFT is much preferable in terms of judicial economy.
In addition, should this motion be denied, the finality in
litigation theory would be frustrated. Krueger would have to wait
for a final judgment to be entered in this case to file an appeal
based upon the same grounds as this Rule 60(b) motion.
The Court finds, therefore, that the equities and the
subsequent decision of the New York Court of Appeals weigh in
favor of granting Krueger's motion to vacate the April 1987 Order
of this Court, and Krueger's motion is granted. The request for
Rule 11 sanctions against Krueger accordingly is denied.
II. Personal Jurisdiction
Having granted Krueger's motion to vacate the April 13, 1987
Order, the Court must now determine whether in light of Kreutter
personal jurisdiction may be asserted over Jahn and Morse. In
considering this issue, which originally arose on a motion to
dismiss, the Court must accept as true the allegations of the
non-movant, drawing all factual inferences in the light most
favorable to it.
It is undisputed that in June 1983, Facit entered into an
agreement with Krueger whereby Krueger was given the exclusive
right to market the 920 Series in the United States. Shortly
thereafter, Facit began marketing the Generation III line. On
January 16, 1984, Facit and Krueger entered into a settlement
agreement under which Facit agreed to discontinue distributing
the Generation III. At the time of these events, Jahn was Facit's
president and Morse was General Manager of Facit's Furniture
Division. An inference can easily be made, then, that Jahn and
Morse were aware of the above transactions.
Morse then left Facit and formed HFT with Kim Fjello-Jensen.
Jahn later left Facit and now serves as chairman of HFT's
Board of Directors. HFT continued to distribute the Generation
III. Krueger then stopped making payments to Facit under the
settlement agreement, resulting in the instant law suit.
The issue of personal jurisdiction concerns Jahn and Morse,
both New Hampshire residents, who are alleged to have used
information obtained from Krueger to compete unfairly with
Krueger, and to have tortiously interfered with contractual
relations between Krueger and Facit. Personal service was made
upon Morse and Jahn pursuant to Fed.R.Civ.P. 4(e) and New York's
long-arm statute, CPLR § 302(a)(1)-(3).
In its April 1987 Order dismissing Jahn and Morse from this
action, the Court based its dismissal on the fiduciary shield
doctrine. First, the Court stated that "[t]he occasional New York
shopping trips made by Jahn and Morse do not provide sufficient
contacts to establish New York jurisdiction over these
defendants." 657 F. Supp. at 1071. The Court thus did not focus on
these trips but on the four annual business trips to New York
made by Jahn and Morse.
The Court then analyzed Jahn and Morse's trips to New York on
behalf of HFT pursuant to the fiduciary shield doctrine. The
burden was placed on Krueger to prove that the case fell within
an exception to the fiduciary shield doctrine. In order to
overcome the fiduciary shield doctrine, Krueger had to make a
prima facie showing that HFT was a shell created to further the
personal interests of Jahn and Morse. Both Jahn and Morse state
in their affidavits in support of the motion to dismiss that
during their trips to New York they did the following:
1) met with Privat Banken, a bank with whom HFT has a
transfer account and from whom HFT has obtained a
2) met with HFT's independent manufacturing
3) appeared for deposition, and met with New York
counsel, in connection with the litigation brought
against Facit in New York'
4) attended several board meetings for Facit in New
5) met with the Swedish American Chamber of Commerce;
6) met with [their] attorneys on this case in New
Zissu Aff.Exh. E at ¶ 3 (Jahn Aff.); Exh. F. at ¶ 3 (Morse Aff.).
The Court held that Krueger had not met its burden and that the
fiduciary shield doctrine prevented Krueger from establishing
jurisdiction based on New York business trips by Jahn and Morse
on behalf of HFT.
In addition, the Court discussed New York's long-arm statute.
The Court analyzed CPLR § 302(a)(3), and found that the attempt
to invoke long-arm jurisdiction failed "because Krueger has not
shown that Jahn or Morse either `derives substantial revenue from
goods used or consumed in the state' of New York, or `derives
substantial revenue from interstate commerce.'" The Court stated,
"[a]s admitted in Krueger's own papers, HFT consummated furniture
sales totaling more than $4 million in 1985. HFT currently
distributes this furniture through about 15 independent
representatives, located across the country." 657 F. Supp. at
1072. In addition, Jahn and Morse own most of HFT's stock. The
Court explicitly rejected Krueger's use of revenues earned by HFT
in New York and several other states to make its showing. The
Court found that "the fiduciary shield doctrine prevents reliance
on corporate earnings as a means of asserting long-arm
jurisdiction over individual defendants." 657 F. Supp. at 1073.
The Court next examined CPLR § 302(a)(2) and concluded that
"even if the torts alleged by Krueger were committed `within the
State' of New York, the long-arm statute does not confer personal
jurisdiction over employees or officers who commit tortious acts
while acting on behalf of their employers." 657 F. Supp. at 1073.
The Court stated that in this case, any tortious interference
with contractual relations actually committed by Jahn and Morse
could have occurred only while these officers were acting on
behalf of Facit and HFT and thus could not form a basis for
jurisdiction over them individually. The Court referred to case
law in this Circuit which had concluded that the fiduciary shield
doctrine appeared to be alive and well in New York. See, e.g.,
Cutco Industries, Inc. v. Naughton, 806 F.2d 361 (2d Cir. 1986);
Marine Midland Bank, N.A. v. Miller, 664 F.2d 899 (2d Cir. 1981).
In the Kreutter decision, however, the New York Court of
Appeals rejected the fiduciary shield doctrine finding that the
legislative history of CPLR § 302 does not suggest that such a
doctrine was intended to be implemented, and that the rule is not
necessary as a matter of fairness. The court found that the
equitable concerns underlying the doctrine are "amply protected
by constitutional due process requisites which guarantee that
jurisdiction over a nonresident will be sustained only when the
demand for his presence is reasonable and consistent with notions
of `fair play and substantial justice.'" 527 N.Y.S.2d at 201, 522
N.E.2d at 46 (citing International Shoe Co. v. Washington,
326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945)). Especially
applicable to the instant case, the Kreutter court found that the
individual over whom jurisdiction was sought would undoubtedly be
defendant's principal witness and would have to come to New York
for that purpose, thus there was no surprise or inconvenience
involved in asserting jurisdiction over him.
Jahn and Morse submit that regardless of Kreutter, this Court
does not have jurisdiction over them. They argue that the claims
set forth in the Second Claim for Relief of Krueger's Amended
Counterclaims allege only that Jahn and Morse committed a
tortious act in their participation in the "establishment" of
HFT, a New Hampshire corporation with its principal place of
business in New Hampshire. Jahn and Morse ask the Court to rely
only on the allegation contained in paragraph 19 of the First
Amended Counterclaims, ignoring the additional allegations
against them. See First Amended Counterclaims ¶¶ 11-13. The Court
finds, however, that Krueger has alleged tortious acts touching
Pursuant to CPLR § 302(a)(3), this Court may exercise
jurisdiction over a person if he commits a tortious act outside
of New York, which action causes injury to a person or property
within New York if he:
i. Regularly does or solicits business, or engages in
any other persistent course of conduct, or derives
substantial revenue from goods used or consumed or
services rendered, in the State, or
ii. Expects or should reasonably expect the act to
have consequences in the State and derives
substantial revenue from interstate or international
commerce; . . .
The tortious conduct alleged to have occurred outside of New York
is Jahn and Morse's interference with the contract between Facit
and Krueger, which action occurred in New Hampshire with the
formation of HFT. The harm alleged to have been inflicted within
New York is the actual or potential loss of business, damage to
customer relations, business reputation and goodwill. HFT
completed substantial interstate sales, see 657 F. Supp. at 1072,
as well as significant New York sales. See Zissu Reply Aff.Exh.
G. It has been held that revenue derived from interstate commerce
is sufficient to meet the 302(a)(3)(ii) requirements in order to
fulfill the constitutional limitations of state long-arm
jurisdiction. See Path Instruments Int'l Corp. v. Asahi Optical
Co., 312 F. Supp. 805, 810 (S.D.N.Y. 1970). HFT's sales of over $4
million through 15 independent representatives, see Facit, 657
F. Supp. at 1071, is thus sufficient to meet the "derives
substantial revenues through interstate commerce" requirement of
New York's long-arm statute.
In addition, due to the interstate character of HFT's business,
it is not mere conjecture and supposition to find that Krueger
has suffered damage due to HFT's sales. New York is a leading
commercial center, and this Court may therefore take judicial
notice of loss of sales under these circumstances. See Granada
Television Int'l Ltd. v. Lorindy Pictures Int'l, Inc.,
606 F. Supp. 68, 72 (S.D.N.Y. 1984). The revenue made by HFT combined
with the New York contacts by Morse and Jahn on behalf of HFT
lead to the conclusion that they are
amenable to New York's long-arm statute in light of the fact that
New York does not recognize the fiduciary shield doctrine.
In asserting personal jurisdiction over Jahn and Morse, the
Court finds that due process concerns are more than fulfilled.
Jahn and Morse's contacts with New York combined with HFT's New
York sales are sufficient to give them "fair warning" that they
may be subject to jurisdiction. See Worldwide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980);
Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683
(1977). In addition, due to the fact that Jahn and Morse stood to
benefit from HFT's entry into the New York market, it is not
unreasonable to subject Jahn and Morse to the flip-side of that
benefit. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105
S.Ct. 2174, 85 L.Ed.2d 528 (1985); Keeton v. Hustler Magazine,
Inc., 465 U.S. 770, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984).
Finally, the allegations in the counterclaims asserted against
Jahn and Morse are directly connected with their New York
contacts, thus the assertion of jurisdiction does not "offend the
traditional notions of fair play and substantial justice." Calder
v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 1486, 79 L.Ed.2d 804
(1984) (citations omitted). The protection of the fiduciary
shield doctrine having been removed, Jahn and Morse are properly
vulnerable to individual liability in a New York forum based on
their actions in New York on behalf of HFT.
III. Summary Judgment
Facit and the additional defendants on counterclaims
("Movants") move for partial summary judgment on Krueger's
counterclaim for breach of the 1984 Settlement Agreement (the
"Agreement"). The Movants argue that Krueger's counterclaims
depend upon the interpretation of a single word in Paragraph 5 of
the Agreement which provides:
5. Facit shall promptly, but no later than January
31, 1984, mail written notice to [Fjello-Jensen
("F-J")], with a copy to Krueger, that effective May
31, 1984, it will terminate its June 14, 1983 Sole
Agent Agreement with F-J. Facit and Ericsson will use
their best efforts to assist F-J in attempting to
find a new, independent distributor for the United
States and its territories and possessions, which
distributor shall not be Ericsson, Facit or any
related company or entity or any of the foregoing's
then-current officers, directors, or employees, and
neither Ericsson nor Facit shall permit such new
distributor to promote, market, distribute or sell
any of F-J's products under the "Facit" name and they
shall request that F-J not use the name Generation
III in the future marketing of its product line and
explain the basis for such request.
Notice of Motion Exh. B ¶ 5 (emphasis added). The Movants submit
that Krueger's counterclaims depend on the interpretation of
"then" as used in the phrase "then-current." The Movants
interpret "then" to refer to the time when a new distributor for
the Generation III line is found for F-J, while Krueger
interprets the word to refer to the date on which the Agreement
was signed, January 16, 1984.
Krueger's counterclaim is based on the fact that on March 1,
1984, the Danish Company F-J and Morse, Facit's former General
Manager of its furniture division, established HFT to be the new
distributor of Generation III. HFT purchased the assets of
Facit's furniture division and eventually employed people who had
been employed in Facit's furniture division. Jahn, the President
of Facit, resigned from Facit in November 1984 and became
chairman of HFT in January 1985. Based on Krueger's
interpretation of "then," Morse, Jahn and other former Facit
employees breached the Agreement when they became employees of
The parties are in agreement that when the language in a
contract is unambiguous, the Court may decide the meaning of the
contract on a motion for summary judgment. See Leslie Fay, Inc.
v. Rich, 478 F. Supp. 1109, 1113-14 (S.D.N.Y. 1979). The parties
do not agree, however, whether there exist two "fairly reasonable
interpretations" of the Agreement, thus presenting a genuine
issue of material fact, enabling the Court to consider parol
Schiavone Constr. Co. v. County of Nassau, 717 F.2d 747, 751 (2d
The Movants submit that there is only one reasonable
interpretation of the Agreement: that the only people prevented
from marketing the Generation III line were those employed by
Facit at the time an independent distributor was found for F-J to
sell Generation III. Krueger counters that the Agreement "must .
. . be interpreted as precluding all officers, directors and
employees as of the date of the agreement (January 16, 1984) from
ever distributing the Generation III." Opp.Mem. at 20.
For the reasons set forth below, the Court is unable to accept
either interpretation as "fairly reasonable" and therefore finds
that a material issue of fact exists over its interpretation,
making summary judgment inappropriate. See Hunt Ltd. v.
Lifschultz Fast Freight, Inc., 889 F.2d 1274, 1277 (2d Cir.
1989); Garza v. Maine Transport. Lines, Inc., 861 F.2d 23, 26 (2d
Under the Movants' interpretation, the employees of Facit at
the time of the signing of the Agreement — including those
involved in negotiating the terms of the Agreement — were free to
leave Facit the next day and form a new company, namely HFT, to
distribute the Generation III line. The Court finds this
interpretation to be inconsistent with the rest of the Agreement,
pursuant to which Krueger withdrew its suit against Facit in
return for Facit's agreement to stop selling the F-J's Generation
III line, and to assist F-J in finding a "new, independent
distributor" for the Generation III line. The new distributor was
explicitly not to be "Ericsson, Facit or any related company or
entity." Notice of Motion, Exh. B ¶ 15. The fact that HFT appears
to have maintained ties with Facit indicates that the Generation
III line was being distributed by a "related" company. Drawing
all inferences in favor of the non-movant, see Ramseur v. Chase
Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989), the Court finds
it highly unlikely that Krueger intended for such a possibility
On the other hand, the Court cannot accept Krueger's
interpretation of the "then-current" language. Krueger would have
the Court find a perpetual restrictive covenant against anyone
employed by Facit as of the date of the Agreement from selling
the Generation III line ever in their lives. The Movants submit,
and the Court finds, that such an anticompetitive covenant
covering a post-employment period should not be found absent
express language to that effect. See American Broadcasting Cos.
v. Wolf, 52 N.Y.2d 394, 406, 438 N.Y.S.2d 482, 488,
420 N.E.2d 363, 369 (1981).
The Court declines at this time to consider extrinsic evidence
submitted by the parties on the issue of intent. Intent is
relevant to other issues in this case, such as determining the
propriety of HFT's formation and subsequent marketing of the
Generation III line, which are at the heart of Krueger's
counterclaims. Moreover, it would be an abuse of this Court's
discretion to do as Movants suggest and ignore the circumstances
surrounding the formation of the Agreement and the transactions
of former Facit employees. These issues are best determined at
trial during which the credibility of witnesses can be observed
and judged by the trier of fact.
Based on the foregoing discussion, the Movants' motion for
partial summary judgment is denied. In addition, Krueger's 60(b)
motion to vacate is granted, and personal jurisdiction is
properly asserted over defendants on counterclaims Jahn and
Morse. The parties are to be ready for trial on May 1, 1990, and
the Court's pretrial requirements are attached hereto.
UNITED STATES DISTRICT COURT CHAMBERS OF JUDGE JOHN F. KEENAN
UNITED STATES COURTHOUSE FOLEY SQUARE
NEW YORK, N.Y. 10007
PRE-TRIAL REQUIREMENTS OF JUDGE JOHN F. KEENAN
Date: February 26, 1990
Re: Facit, Inc. v. Krueger, Inc., 88 Civ. 1268
The above case has been given a ready for trial date of May 1,
1990. As of that date, you must be ready to proceed to trial on
48 hours notice from the Court.
Chambers will notify counsel as far in advance as possible of
a definite, firm trial date, when one is selected by the Court.
Should counsel for either party find that circumstances have
changed with respect to the readiness of the case for trial, or
for extraordinary reasons additional advance notice of a firm
trial date is needed, counsel are directed to advise the Court in
The following steps should be taken in connection with ready
for trial status:
1. A joint pre-trial order is directed to be filed at least two
weeks prior to the ready for trial date. The joint pre-trial
order is to contain the following:
(a) stipulated facts
(b) contentions of the parties as to disputed facts
(c) list of evidence to be submitted at trial
(d) list of witnesses to be called at trial
(e) legal issues to be decided by the Court
(f) estimated time for presentation of case by each
(g) whether trial is to be heard by a jury or the
In the event the parties cannot agree upon a joint pre-trial
order, separate pre-trial orders shall be submitted by the same
date described above.
2. A pre-trial memorandum setting forth the relevant statutory
and case law shall be submitted by each party by the same date
described above. Each party's version of the facts, as they bear
upon the relevant law, shall be included in the pretrial
3. All exhibits shall be pre-marked. Counsel shall exchange
exhibits prior to trial. Plaintiff's exhibits shall be marked
with numerals, and defendant's with letters. Whenever possible,
the parties should stipulate as to authenticity and admissibility
of exhibits. Pre-marked exhibits shall be submitted to the Court
the day prior to the firm trial date. A list of exhibits should
be supplied to the Court Clerk, as well as to the Court. All
exhibits on such list shall be numbered in conformity with the
joint pre-trial order.
4. Proposed voir-dire questions shall be submitted to the Court
the day prior to the firm trial date.
5. Requests to charge shall be submitted no later than the
commencement of trial in a jury case. Each request shall specify
the authority for the proposed charge.
Counsel should have copies of any deposition transcripts which
are to be read in a jury case. In a bench trial, counsel should
mark the portion of each deposition transcript to be offered in
evidence, and supply copies to the court reporter.
6. Counsel are expected to have all necessary witnesses on hand
to commence and continue trial. The Court will not commit itself
to wait for witnesses.
7. In a case to be tried by the Court, a schedule for
submissions of proposed findings of fact and conclusions of law
shall be set at the time of trial.
8. Failure to comply with these directions may result in
dismissal or the entry of a default judgment.