Opinion
NO. C2-97-449
August 9, 2002
OPINION AND ORDER
This matter is before the Court for consideration of the Motion of Christopher L. White, Dennis P. Wilburn and Richard A. Widders Jr. ("Individual Defendants") for Reconsideration of this Court's June 21, 2002 Opinion and Order (Doc. # 103). For the reasons set forth below, the Individual Defendants' Motion is DENIED.
I. PROCEDURAL BACKGROUND
In an attempt to temper the long, complicated and confusing procedural history of this case, the Court sets forth the following chronology of relevant events:On June 4, 1997, Coopers Lybrand and Coopers Lybrand LLP ("Corporate Defendants") filed a Motion to Dismiss Counts III and IV, negligence and negligent misrepresentation, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (Doc. # 19). Additionally, Defendants moved to dismiss Count I, securities fraud, for failure to allege the claim with the particularity required by Private Securities Litigation Reform Act and Rule 9(b) of the Federal Rules of Civil Procedure. Id.
On June 27, 1997, the Individual Defendants filed a Motion to Dismiss Counts II and IV, negligence and negligent misrepresentation, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (Doc. # 24"). Additionally, Defendants moved to dismiss Count I, securities fraud, for failure to allege the claim with the particularity required by Private Securities Litigation Reform Act and Rule 9(b) of the Federal Rules of Civil Procedure. Id.
On September 5, 1997 all parties filed a Joint Status Report, indicating that Corporate Defendants had motioned the Multi-District Litigation ("MDL") Panel to consolidate this case with two other pending cases; one pending in the district court of New Jersey and the other pending in this Court (Doc. # 45). The MDL Panel set a hearing for September 19, 1997. Id.
On October 9, 1997, the MDL Panel Ordered this case transferred to the District Court of New Jersey (Doc. # 46). Plaintiffs filed an Amended Complaint in the District Court of New Jersey on October 31, 1997 (Doc. # 47).
On January 7, 1998, the Corporate Defendants filed a Notice of Motion to Dismiss (Doc. # 48), to inform the New Jersey Court of its motion filed in this Court (Doc. # 19). On January 7, 1998, the Individual Defendants filed a similar Notice of Motion to Dismiss (Doc. # 50), also to inform the New Jersey Court of its motion filed in this Court (Doc. # 24). On July 6, 1998, Individual Defendants and Corporate Defendants participated in oral arguments in front of Judge Lechner, in New Jersey on their motions to dismiss (Doc. # 104, Ex. A at 9). Although oral arguments were held, the New Jersey court did not rule on these motions. Thereafter, it appears that Plaintiff's requested that the MDL Panel transfer the case back to Ohio, which the Panel ordered on March 22, 1999 (Doc. # 54). When the case was transferred back to Ohio only the original Complaint, and not the Amended Complaint, was transferred with it. Also, the Individual Defendants' Motion to Dismiss was not transferred to this Court.
On September 30, 1999, this Court granted in part the Corporate Defendants' Motion to Dismiss Counts I, III, and IV (Doc. # 19) that it had previously filed in this Court (Doc. # 63). The Court granted the motion with regard to Counts III and IV and granted the motion with regard to Count I with the provision that Plaintiffs be given twenty days to file an amended complaint on the claim.
It also appears that Plaintiffs did not receive a copy of the September 30, 1999 Order until November 30, 1999. Consequently, Plaintiffs' did not attempt to file an amended complaint within the twenty day deadline set forth in the Order. Further, Plaintiff's thought that the Court was ruling on the Complaint, not the Amended Complaint, not realizing that the Amended Complaint had not been filed with the Court. On December 6, 1999, Plaintiffs filed a Notice of Intent to Stand on Amended Complaint (Doc. # 66).
On December 21, 1999, this Court dismissed the case in accordance with its September 30, 1999 Order (Doc. # 67). Plaintiffs appealed to the Sixth Circuit on December 23, 1999 (Doc. # 68). While the case was on appeal, Plaintiffs filed a Motion for Hirsch Remand with this Court (Doc. # 71). The Court denied the motion on March 21, 2000 (Doc. # 75).
On November 21, 2001, the Sixth Circuit remanded the case so that this Court could consider Plaintiffs' claims in light of their Amended Complaint (Doc. 83). On remand, in an Opinion dated May 16, 2002, this Court denied Defendants' Motion to Dismiss Count One of Plaintiffs' Amended Complaint and granted Defendants' Motion to Dismiss Counts III and IV of Plaintiffs' Amended Complaint (Doc. # 88).
On May 22, 2002, Plaintiffs filed a Motion for Clarification of this Court's Order dated May 16, 2002 (Doc. # 90). The matter was fully briefed by all parties (Docs. # # 90, 93, 94, 95). In an Order dated June 21, 2002, the Court held that the Individual Defendants had not been dismissed from this case (Doc. # 100). On July 3, 2002, the Individual Defendants motion the Court to reconsider this June 21, 2002 Opinion and Order (Doc. # 103).
II. ANALYSIS
The Individual Defendants' motion essentially presents the same arguments they previously made it their opposition memorandum (Doc. # 94) to Plaintiff's Motion for Clarification (Doc. # 90). Individual Defendant's argue that Plaintiff's voluntarily abandoned their claims against the individual defendants when they moved the Court to dismiss this action (Doc. # 66) in order to secure an immediate appeal of the September 30, 1999 Order dismissing their claims against the Corporate Defendants (Doc. # 63). When the Court granted Plaintiffs' motion, on December 21, 1999 (Doc. # 67), Defendants contend that the individual defendants were dismissed with prejudice.
Upon further consideration, the Court concludes that whether the Individual Defendants were, or were not, dismissed with prejudice in the Court's December 21, 1999 Order is of no moment. The Sixth Circuit vacated this Court's September 30, 1999 and December 21, 1999 Orders stating:
While this Court has analyzed the [Private Securities Litigation Reform Act., 15 U.S.C. § 78u-4 ("PSLRA")] issue in the context of both the Complaint and Amended Complaint, it appears that the district court did not review Plaintiff's Amended Complaint prior to issuing its Orders. For that reason, the district court's September 30, 1999 and December 21, 1999 Orders which disposed of this matter with prejudice must be vacated and the case remanded so the district court can review the PSLRA issue in the context of Plaintiff's Amended Complaint.Bovee v. Coopers Lybrand, 272 F.3d 356, 363 (6th Cir. 2001) [emphasis added].
Thus, it matters not what this Court's Orders dated September 30, 1999 and December 21, 1999 held. These Orders have been vacated. This Court has been directed by the Sixth Circuit to review the PSLRA issue presented in the defendants' motions to dismiss in the context of the Amended Complaint. In light of the decision of the Court of Appeals the Motion to Reconsider is DENIED.
The Individual Defendants' Motion to Dismiss will be at issue sometime in August of 2002. Following the briefing, the Court will rule on the Motion to Dismiss the Individual Defendants named in the Amended Complaint.
III. CONCLUSION
Based on the foregoing, the Individual Defendants' Motion for Reconsideration of this Court's June 21, 2002 Order is DENIED. Thus, the Individual Defendants are presently parties to this action.