Opinion
April 24, 1939.
Pleasants Donovan, and Unger Pollack, all of New York City (Samuel A. Pleasants and Stanley D. Schuval, both of New York City, of counsel), for plaintiff Kahn.
Arthur S. Friend and Charles Winkelman, both of New York City, for plaintiffs Winkelman et al.
John Thomas Smith, of New York City (Albert M. Levert, of New York City, of counsel), for defendants General Motors, Albert Bradley, and Donaldson Brown.
Wiley, Willcox Sheffield, of New York City (A.M. Levert, Ralph M. Carson, and Bertram F. Willcox, all of New York City, of counsel), for defendant E.I. DuPont de Nemours Co., Inc.
Henry M. Hogan, of New York City (Albert M. Levert, of New York City, of counsel), for defendants Clarence Woolley and Alfred H. Swayne.
Davis, Polk, Wardwell, Gardiner Reed, of New York City (Albert M. Levert, of New York City, of counsel), for defendants Junius S. Morgan, Seward Prosser, and George Whitney.
Action by Fanette S. Kahn, a stockholder, suing on behalf of all stockholders, against the General Motors Corporation and others, to enjoin an allegedly illegal bonus plan and agreements and for other relief. On defendants' motion to consolidate the case with other cases and to strike certain allegations from the complaint and on plaintiff's motion to remand.
Defendants' motion allowed and plaintiff's motion denied.
This is a motion by the defendants to consolidate the present case with the cases brought against them by Jacobson and Winkelman, which have already been consolidated and are pending in this court, and to strike certain allegations from the Kahn complaint. The plaintiff Kahn moves to remand her case on the ground that there is involved in her suit no separable controversy which is wholly between the plaintiff, a citizen of the State of New York, and a citizen of another State.
The allegations in the Kahn complaint are a verbatim copy of the original Jacobson and Winkelman complaints, which have been before me before, see Winkelman v. General Motors Corp., D.C., 22 F. Supp. 255, and the only differences between this and the other complaints lies in the omissions of the prayers contained in the earlier complaint, requesting an injunction against the further operation of the defendant's allegedly illegal bonus plan and agreements. All three complaints contain a general prayer for such other and further relief as shall seem just and equitable.
I think that the motion to remand should be denied and that in accordance with my decision in the Winkelman case, supra, plaintiff should be required to reframe her complaint by eliminating therefrom all irrelevant and evidentiary matter so that defendants be presented with an opportunity to answer facts. The motion to consolidate, in view of the similarity of the complaints, is also ruled by the precedents established by the decisions on the former motions, and is allowed.
In connection with plaintiff's claim of an absence of a separate controversy, it should be indicated that at least two major separate controversies are presented by her complaint. First, there is a controversy between her, as a stockholder, suing on behalf of all stockholders, and defendant General Motors, a Delaware corporation, involving the validity of the bonus plan and its continuation as a method of corporate administration. If the plaintiff should support the allegations of her complaint with sufficient proof, and it should appear that the plan was never legally adopted and ratified, then, by virtue of her prayer for general relief, she would be entitled to an injunction against the further operation of the plan. Secondly, she has requested a rescission and cancellation of the contracts heretofore made between General Motors and the other corporate defendants, all foreign corporations. In both of these instances, all necessary defendants are citizens and residents of different states from plaintiff, and Geer v. Mathieson Alkali Works, 190 U.S. 428, 23 S.Ct. 807, 47 L.Ed. 1122, is a controlling authority for the proposition that this court should retain jurisdiction of the cause.