The opinion of the court was delivered by: Robert W. Sweet, United States District Judge
Deborah Donoghue ("Donoghue"), as executrix of the estate of Richard
Morales ("Morales"), has moved for summary judgment under Rule 56, Fed.
R. Civ. P., granting the relief sought by her complaint, the recovery of
short — swing profits arising out of the purchase and sale of
shares of Natural Microsystems Corp. ("NMC") by defendant Ronald Bleakney
("Bleakney"), a former officer of NMC, appearing pro se. Upon the facts
and conclusions set forth below, the motion is granted, and judgment will
be entered in accordance with this opinion.
Donoghue filed her complaint in this action on January 29, 2001,
pursuant to Section 16(b) of the Securities Exchange Act of 1934 (the
"Exchange Act"), which provides for an issuer's recovery from an officer
of "any profit realized by him from any purchase: and sale, or any sale
and purchase, of any equity security of such issuer (other than an
exempted security) within any period of less than six months . . . ."
15 U.S.C. § 78p(b).
Donoghue's motion for summary judgment was heard and marked submitted
on January 16, 2002.
The facts as set forth in the Local Rule 56.1 Statement and the
submissions of Bleakney are undisputed.
The common shares of NMC were registered under Section 12(g) of the
Exchange Act, 15 U.S.C. § 78l(g).
Prior to March 15, 1999, Bleakney was Senior Vice President for Sales
at NMC, and was responsible for directing sales activities for NMC in
North America, South America, and Europe. On that day he tendered his
resignation. He continued to bear the title of "Senior Vice President For
Sales" at NMC, but the resignation was effectively accepted on March 22,
1999, after which time he had few or no substantive duties commensurate
with the title.
Bleakney made the following purchases of NMC common stock on the
dates, in the quantities, and at the prices, here shown:
10/30/98 400 $7.6235/Share
4/19/99 3,000 $4.1250/Share
4/19/99 2,000 $4.2500/Share
4/19/99 3,000 $4.2500/Share
4/20/99 2,000 $4.0625/Share
4/22/99 9,917 $4.0938/Share
4/30/99 400 $4.1569/Share
Bleakney made the following sales of NMC common stock on
the dates, in the quantities, ...