Opinion
No. 01 Civ. 781 (JFK).
April 12, 2005
MEMORANDUM OPINION and ORDER
We revisit the continuing saga of the caption of this case. Two months ago, former defendant Minicucci, joined by Fahnestock, moved to strike plaintiffs Terry Wilkinson and David S. McKee from the caption on standing grounds. The Court granted the motion by Order dated April 6, 2005. Minicucci also moved to substitute Momentum Investments Ltd. ("Momentum") for plaintiff CSDesign, Inc. ("CSDesign"). In their opposing brief, Plaintiffs took no position on the substitution. Accordingly, the Court permitted the amendment under Fed.R.Civ.P. 17(a).
Sometime between their opposing brief and Minicucci's reply brief, Plaintiffs changed their position. In a letter dated February 22, 2005, Plaintiffs' counsel asked the Court to keep Wilkinson and strike CSDesign and Momentum. Counsel explained that Plaintiffs had previously assumed that Momentum could be considered a successor-in-interest to CSDesign, but that assumption appeared doubtful upon further investigation. Attached to this letter was a four-paragraph affirmation by Terry Wilkinson. Mr. Wilkinson declared that prior to 1997, the value of CSDesign, his company, had dropped significantly due to the loss of funds associated with the Rayvon shares. In September 1997, CSDesign sold the Rayvon shares to Momentum for reasons relating to Canadian tax laws. Mr Wilkinson concluded: "I am suing to recover for damages inflicted on me by the actions of defendants, including the loss of my assets previously held through CSDesign, Inc." (Wilkinson Affirm. ¶ 4).
In his reply papers, Minicucci objected to the change of position on the grounds that Wilkinson did not have standing. Unbeknownst to Minicucci and to Plaintiffs, neither the February 22, 2005 letter nor the Wilkinson affirmation ever made it to the Court. Therefore, the Court decided the motion on the papers before it, and in these papers Plaintiffs took no position on the substitution of Momentum for CSDesign.
Plaintiffs now take another whack. In an April 6, 2005 letter, which was authorized, Counsel seeks substitution of David S. McKee for DSMcKee investments and CSDesign for Momentum. Plaintiffs have re-submitted the Wilkinson affirmation for the Court's consideration. Not surprisingly, Fahnestock opposes the substitutions (or re-substitutions, as it were). This entire affair strikes the Court as nothing but a time-wasting game of "Musical Plaintiffs." The Court further notes that this dispute would not be so complicated if Plaintiffs either (1) had their position figured out the first time or (2) asked the Court's permission to submit their February 22 letter (thereby alerting the Court to its existence), rather than abruptly serving it on the opposition and never confirming its receipt in Chambers. In any event, the music stops with this Order.
At the outset, the Court notes that the Wilkinson affirmation is undated. This flaw potentially could invalidate the document under 28 U.S.C. § 1746. Across the top of the affirmation, however, is a facsimile tagline with the name "Terry Wilkinson" and the date "Feb 23, 05." In the context of the instant dispute over the caption, this line provides an acceptable reference point and satisfies the statutory requirement that the affirmation contain the date of execution. Cf. In re Blinder Robinson Co., 169 B.R. 704, 709 (D. Colo. 1994), rev'd on other grounds, 124 F.3d 1238 (10th Cir. 1997); E.E.O.C. v. World's Finest Chocolate, Inc., 701 F. Supp. 637, 639 (N.D. Ill. 1988).
With respect to the McKee entity, Plaintiffs now argue that DSMcKee ceased functioning as an independent entity in 1997 and conveyed all of its rights to David S. McKee. Plaintiffs contend that any judgment in favor of DSMcKee "would create unnecessary administrative burdens for plaintiff David McKee to convert the judgment to be one in favor of David McKee." (Ltr. from Kobre Kim to Court, Apr. 6, 2005). If DSMcKee ceased functioning in 1997, the Court cannot fathom why Plaintiffs included the entity as a plaintiff in their 2001 Complaint. And why did Plaintiffs wait four more years, until the eve of trial, to inform the Court that DSMcKee was defunct? While the Court has no cause to doubt counsel's representations, no evidence of the conveyance has been presented. Furthermore, in light of paragraphs 40 and 43 of the Complaint, highlighted in the April 6, 2005 Order, the Court is not entirely convinced of Mr. McKee's standing as an individual plaintiff. Lastly, given the history of these applications, it should surprise no one that the Court is unmoved by the possibility of someone incurring "unnecessary administrative burdens." The prior ruling stands. Plaintiffs' application to substitute David S. McKee for DSMcKee is denied.
Plaintiffs' Memorandum of Law (the one that took no position on the substitution) references an "Excerpt from the Deposition of David McKee (attached hereto as Exhibit A)." Unfortunately, Exhibit A is not attached to the memorandum filed with the Clerk's office. Plaintiffs are not invited to re-submit the exhibit. One Mulligan on this troublesome brief is enough.
After taking no position on Minicucci's motion to substitute Momentum for CSDesign, Plaintiffs now seek to substitute CSDesign for Momentum. In 1997, CSDesign sold its Rayvon shares to Momentum. Mr. Wilkinson testified yesterday that he is not the owner of Momentum, and (perhaps remarkably) that he does not know the Momentum owner's identity. Plaintiffs' counsel represents that Momentum "was a special purpose vehicle (now defunct) used by a tax adviser to effect a realization sale of Rayvon shares for reasons related to Canadian tax laws." (Ltr. from Kobre Kim to Court, Apr. 6, 2005). Fahnestock is concerned with potential liability to Momentum and opposes the application.
In view of the trial record and the fact that Momentum will not be hereafter listed as a plaintiff, the Court sees no potential liability. Furthermore, Wilkinson stated in paragraph 3 of his affirmation that "[p]rior to 1997 [the year the shares were conveyed to Momentum], the value of CSDesign, Inc. had been significantly diminished due to the loss of funds associated with the Rayvon shares — which is the fraud alleged in this case." The Court therefore will permit the re-substitution of CSDesign for Momentum. This is the most logical resolution for both applications given the wording of the Complaint and the Court's standing analysis in its April 6, 2005 Order. The names on the Fahnestock accounts were DSMcKee and CSDesign. Those are the proper plaintiffs.
The Clerk of the Court is directed to strike Momentum Investments Ltd. from the caption of the case and add CSDesign, Inc. as a plaintiff.