87 F.R.D. 478

Harry LEWIS, Plaintiff, v. Al KNUTSON, H. Phillip Hubbard, Harold C. Simmons, Douglas M. Simmons, Glenn R. Simmons, Michael A. Snetzer, Daco Industries, Inc., James J. Ling, William H. Tinsley, Lewis H. Johnson, John W. Bertoglio, Robert W. Moore, Daniel M. Carney, Daniel J. Taylor, Flight Proficiency Service, Inc., Danco, Inc., and Contran, Inc., Defendants.

Civ. A. No. CA-3-78-1147-D.

United States District Court, N. D. Texas, Dallas Division.

Aug. 13, 1980.

*479Abraham I. Markowitz, New York City, for plaintiff.

Timothy A. Duffy, Dallas, Tex., Roger Taylor, Chicago, Ill., James L. Truitt, Dallas, Tex., for defendants.

ORDER

ROBERT M. HILL, District Judge.

Came on for consideration before the Court the motion to dismiss for lack of standing (April 14, 1980) of defendants A1 Knutson, H. Phillip Hubbard, Harold C. Simmons, Glenn R. Simmons, Michael A. Snetzer, and Flight Proficiency, Inc. (the “inside defendants”), which the Court converted into a motion for summary judgment in its order of July 1, 1980.1 The Court, having considered the affidavits and the briefs on file and having heard the argument of counsel in open court on July 29, 1980, is of the opinion that the inside defendants’ motion for summary judgment should be granted because plaintiff Harry Lewis (“Lewis”) lacks standing to pursue the derivative claims in his first amended complaint. The Court is further of the opinion that Contran’s remaining common stockholders should be notified of the imminent dismissal of Lewis’ action and should be given an opportunity to intervene.

Fed.R.Civ.P. 56(c) provides that summary judgment should “be rendered ... if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” The inside defendants initially bore the burden of establishing both the absence of any genuine issues of material fact and their entitlement to judgment as a matter of law; and the Court resolved “all reasonable doubts as to the existence of a genuine issue of material fact” against the inside defendants. Kennett-Murray Corporation v. Bone, 622 F.2d 887, 892 (5th Cir. 1980). Through proper summary judgment proof,2 the inside defendants established the following facts in support of their motion for summary judgment: Lewis became the owner of 100 shares of Contran common stock on February 5, 1969. Affidavit of Michael A. Snetzer (“Snetzer”) (filed 4/14/80) at paragraph 3. In July, 1977, Contran’s shareholders *480approved a one-for-ten reverse stock split which reduced Lewis’ holdings in Contran to ten shares. Thus, Lewis owned ten shares of Contran stock when he filed this suit on September 15, 1978. However, on November 29, 1979, defendant Flight Proficiency Service, Inc., the holder of the majority of Contran’s common stock, voted to approve a one-for-thirty reverse split (the “split”) of Contran common stock which left Lewis as the holder of only ten “fractional share interests.”3 The split became effective on December 19, 1979.

In connection with the split Contran caused a notice of approval of the amendment to the certificate of incorporation and a letter of transmittal and order form to be mailed to all Contran stockholders at the addresses indicated on Contran’s stockholder list. Specifically, Contran caused these documents to be mailed to Lewis at P. O. Box 169, New York, New York, the address reflected on Contran’s books as of August 2, 1979. Contran did not include Lewis’ zip code, 10008, on its mailings to Lewis because Lewis’ zip code did not appear on Contran’s stockholder records. The New York post office for the zip code 10001, rather than the New York post office for the zip code 10008, received Contran’s mailings to Lewis and returned them to Contran marked “addressee unknown.” See Snetzer Affidavit (filed 6/17/80) at paragraphs 5-7 and Exhibits 3 — 4. In the past Contran had successfully used the address P. O. Box 169, New York, New York, as Lewis’ mailing address. See id. at paragraph 4 and Exhibit 2.

Under the split’s terms, Lewis and all other Contran common stockholders had an opportunity to purchase additional fractional share interests for $50.00 apiece on or before January 18, 1980, in order to maintain their equity in Contran. However, Lewis did not attempt to purchase the twenty additional fractional share interests which he would have needed to remain a Contran stockholder until after April 14, 1980, the date on which the inside defendants moved to dismiss for lack of standing. See Snetzer Affidavit (filed 6/17/80) at Exhibit 5. After Contran’s rejection of Lewis’ untimely offer to purchase twenty additional fractional share interests on or about April 23, 1980, see id. at Exhibit 6, Lewis retained only the right to turn in his fractional share interests for cash. See note 3, supra.

In order to avoid the grant of summary judgment which the inside defendants’ affidavits justified, Lewis was required to “demonstrate both the existence of a material fact and a genuine issue as to that material fact.” Kennett-Murray Corporation v. Bone, supra at 892. See Fed.R. Civ.P. 56(e).4 Lewis does not contest the general propositions that, under either federal law or Delaware law, see Schilling v. Belcher, 582 F.2d 995, 999-1000 (5th Cir. 1978) , a plaintiff in a derivative suit must maintain his stock ownership “throughout the life of the suit and that the action will abate if the plaintiff ceases to be a shareholder before the litigation ends.” Id. at 999; see Tryforos v. Icarian Development Co., 518 F.2d 1258 (7th Cir. 1975) (Stevens, J.), cert, denied sub nom. Manta v. Tryforos, 423 U.S. 1091, 96 S.Ct. 887, 47 L.Ed.2d 103 (1976); Heit v. Tenneco, Inc., 319 F.Supp. 884 (D. Del. 1970); Harff v. Kerkorian, 324 A.2d 215 (Del. Ch. 1974) (dicta), rev’d in part on other grounds, 347 A.2d 133 (Del. 1975); Hutchison v. Bernhard, 220 A.2d 782 (Del.Ch.1965); 7A C. Wright and A. Miller, Federal Practice and Procedure: Civil § 1826 (1972); cf. Portnoy v. Kawecki Berylco Industries, Inc., 607 F.2d 765 (7th Cir. 1979) (plaintiff lost standing to sue under Section 16(b) of the Securities Exchange *481Act of 1934,15 U.S.C. § 78p(b) (1971), when he lost shareholder status through merger). Rather, Lewis mounts three arguments in an attempt to convince the Court that a material fact exists as to whether he is still a Contran shareholder. Lewis first contends that his fractional share interests constitute stock despite the provisions of Del. Code Ann. tit. 8, § 155 (1974) (“Section 155”). Second, Lewis argues that the Court, as a court of equity, should not permit the forfeiture of his stock through the split. Third, Lewis contends he has “contingent standing” because the proposed second amended complaint which he requests leave to file and in which he challenges and seeks rescission of the split moots the inside defendants’ motion for summary judgment.5

The Court readily rejects Lewis’ first and second arguments. Lewis’ first argument which characterizes his current Contran investment as stock flies in the face of Section 155. Simply put, Lewis’ first argument appears novel because it is so illogical. Similarly, Lewis’ second argument, his plea to the Court’s general equitable powers, lacks solid case support. The Court’s aphoristic abhorrence of forfeiture does not lead inexorably to the conclusion that the Court should compel Contran to issue one share of its common stock to Lewis.

However, the Court finds Lewis’ final argument concerning the proposed second amended complaint and the split’s requested rescission more troublesome because the voluntariness or the involuntariness of Lewis’ loss of shareholder status is apparently a material fact under the applicable law. See Coleman v. Taub, 487 F.Supp. 118 (D. Del. 1980); see also, Zauber v. Murray Savings Association, 591 S.W.2d 932 (Tex.Civ.App.-Dallas 1979, no writ history) (construing analogous requirements of Texas law). The Court finds, however, that Lewis’ response to the inside defendants’ motion for summary judgment fails to raise a genuine issue of material fact concerning the involuntariness of the manner in which he lost his shareholder status.

The inside defendants established by proper summary judgment proof that Con-tran properly notified Lewis of the split, that all Contran stockholders, including Lewis, had an opportunity to preserve their stockholder status in Contran, and that Lewis failed to purchase the requisite additional fractional share interests within the prescribed time period. The Court finds that the inside defendants properly objected to much of Lewis’ response to the inside defendants’ motion for summary judgment at the hearing on July 29, 1980, that the Court should strike and should disregard many portions of Lewis’ two responsive affidavits and of the responsive affidavit of Lewis’ counsel, Abraham Markowitz (“Mar-kowitz”),6 and that the only specific facts *483contained in Lewis’ response fail to raise a genuine issue for trial.7 The Court’s rejection of Lewis’ “contingent standing” argument necessarily implies a repudiation of Lewis’ contention that Contran owed him a duty to notify either him or his counsel of the split when its mailings to Lewis returned unopened. The Court is of the opinion that, as a matter of Delaware law, a corporation is entitled to rely on the addresses contained on its stockholder list. The Court’s implication of a special or an extraordinary duty to notify derivative plaintiffs is unsupported by current case authority and would only lead to even more difficult questions concerning the sufficiency of notice about proposed corporate transactions.

In light of the Court’s holding that Lewis’ stockholder status was not involuntarily destroyed, the Court is of the opinion that Lewis’ motion for leave to file a second amended complaint should be denied. The Court expresses no opinion on the merits of the claims contained in Lewis’ first amended complaint, on the merits of the claims contained in Lewis’ proposed second amended complaint, or on Lewis’ adequacy as a class representative. The Court simply holds that the inside defendants’ motion for summary judgment should be granted because Lewis now lacks standing to maintain the derivative claims contained in his first amended complaint. On or before September 2, 1980, defendant Contran should submit to the Court and serve on the inside defendants and Lewis an appropriate form of notice to send to the remaining Contran stockholders who would be proper parties to raise the claims contained in Lewis’ first amended complaint. The inside defendants and Lewis should file any written objections to Contran’s proposed notice on or before September 12, 1980.

It is so ORDERED.

Lewis v. Knutson
87 F.R.D. 478

Case Details

Name
Lewis v. Knutson
Decision Date
Aug 13, 1980
Citations

87 F.R.D. 478

Jurisdiction
United States

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