Binghamton Masonic Temple, Inc. v. Bares

168 F.R.D. 121, 1996 U.S. Dist. LEXIS 10271, 1996 WL 406149
CourtDistrict Court, N.D. New York
DecidedJuly 15, 1996
DocketNo. 95-CV-1469
StatusPublished
Cited by2 cases

This text of 168 F.R.D. 121 (Binghamton Masonic Temple, Inc. v. Bares) is published on Counsel Stack Legal Research, covering District Court, N.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Binghamton Masonic Temple, Inc. v. Bares, 168 F.R.D. 121, 1996 U.S. Dist. LEXIS 10271, 1996 WL 406149 (N.D.N.Y. 1996).

Opinion

MEMORANDUM-DECISION AND ORDER

McAYOY, Chief Judge.

I. THE PARTIES

Plaintiff, William T. Whitman, is the former president of Binghamton Masonic Temple (hereinafter “BMT”). He alleges that he is still the true president of BMT and in this capacity brings this action on behalf of BMT. Plaintiff, BMT is a non-profit corporation organized under the laws of New York State. The Defendants Bares, Weber, Harrison, Jones, Freer and Barbour1 are officers, trustees and members of BMT. The present motion is brought by the defendants and seeks the imposition of sanctions against the plaintiffs and their attorney pursuant to Fed. R.Civ.P. 11.

II. PROCEDURAL BACKGROUND

On October 13, 1995, the Plaintiffs filed their original claim alleging, inter alia, that Defendants violated; 18 U.S.C. § 1962 (hereinafter “RICO”); 15 U.S.C. § 78j(b) and 17 C.F.R. § 240.10b-5, fraud under the Federal Securities Exchange Act. The Plaintiffs’ claim sought $3 million in damages. On No[123]*123vember 11, 1995 the Plaintiffs filed a Civil RICO statement as directed by Judge MeAvoy’s Order of October 10,1995. The Defendants filed a motion to dismiss on February 28,1996.

The Plaintiffs were served on March 13, 1996 with notice that the Defendants’ intended to move pursuant to Fed.R.Civ.P 11 for sanctions against Mr. Whitman and his attorney Mr. Mel M. Marin. On March 20, 1996. Mr. Marin, moved to withdraw as Plaintiffs’ attorney. Mr. Marin’s motion was denied by the Court on March 21, 1996. On April 22, 1996, the Court dismissed the Plaintiffs’ claims, with prejudice, against the non-federal Defendants; Bares, Weber, Harrison, Jones, Freer and Barbour. In that Order the Court found that Mr. Whitman could not bring a derivative action on behalf of BMT because he failed to comply with Fed. R.Civ.P. 23.1 and that the SEC and RICO claims did not state a claim upon which relief could be granted.

On April 29, 1996, the Defendants moved for sanctions against Mr. Whitman and Mr. Marin pursuant to Fed.R.CivJP. 11. This motion is presently before the Court. On May 9,1996, the Plaintiffs moved pursuant to Fed.R.Civ.P. 59 for an order to alter or amend the Court’s April 22, 1996, Order. The Court’s May 22, 1996, Decision & Order postponed consideration of the Rule 59 motion until this Rule 11 matter is resolved.

III. FACTS

Mr. Whitman, was the president of BMT from the mid 1980’s-1992.2 During his administration he acted as the corporation’s de facto treasurer and general contractor with regard to a renovation project at the Masonic Temple Building (hereinafter “MTB”) building owned by BMT. This renovation began in 1987 and approximately $1.7 million was borrowed by BMT to complete the project. The loan was guaranteed by the Department of Housing and Urban Development (hereinafter “HUD”) and administered by the City of Binghamton. Due to cost over runs and a contractual dispute, funding for the project was stopped in early 1990. Consequently, BMT sued the City of Binghamton alleging $1.7 million in damages. In the Spring of 1994 judgment was entered in favor of BMT for $15,000. Without the permission of the Board Mr. Whitman instructed BMT’s attorneys, Hinman, Howard & Kattell, to appeal the judgment.

In 1987, at properly convened meetings, the trustees voted unanimously to lease a building owned by Mr. Whitman (the “Elgin Building”). After BMT and Mr. Whitman executed the agreement (hereinafter “Agreement”), BMT made a number of rental payments to Mr. Whitman.

In 1992, BMT’s Trustees grew worried about Mr. Whitman’s exclusive control of BMT’s finances and his occupation of the roles of president, trustee, general contractor, treasurer, and landlord. Only Mr. Whitman held a key to the Elgin Building, and he allegedly refused Board requests that he furnish keys to other officers and trustees. Sometime in 1992, Defendant Bares and other members of a constitutive body ceased to use the Elgin Building as a meeting place. BMT began to fall behind on its rental payments for the use of the Elgin Building and Mr. Whitman secured a default judgment against BMT in 1992 for $97,000 in rent due and owing.

Upon learning of the default judgment Mr. Whitman was severely criticized by the Board. Thereafter, Mr. Whitman cancelled BMT’s monthly meetings and allegedly attempted to interfere with the annual election of new officers in 19933. New officers were elected and Defendant Barbour replaced Mr. Whitman as President: the current president [124]*124of BMT is Defendant Freer.4 Mr. Whitman notified the Board in a letter dated February 11, 1993 that he believed that the new officers were elected illegally in contravention of the bylaws and that he was “the only person authorized to speak for Binghamton Masonic Temple.”

In September of 1995 the Board brought a motion in Binghamton City Court against Mr. Whitman to vacate his 1992 default judgment on the grounds of fraud. In response to this, Mr. Whitman sent a letter dated October 6, 1995, to the Board demanding, inter alia, that the officers cease their actions, relinquish their offices and each pay him $3 million for BMT’s costs, losses and attorney’s fees. Additionally, Mr. Whitman iterated that the 1993 and subsequent elections were “ultra vires and/or illegal under the laws of the State of New York and of the United States in [an] effort to gain and exercise control of the corporation.”

A. The Basis for the Plaintiffs’ IS U.S.C. § 78j(b) and 17 C.F.R. § 240.10b-5 Claims

The basis for the Plaintiffs’ SEC claim was that the Defendants were improperly elected by trading “voting blocks” in exchange for a promise that BMT would not have to pay Mr. Whitman the 1992 default judgment. The Plaintiffs claimed that these votes were fraudulently obtained and were “securities” within the meaning of 15 U.S.C. § 78j(b) and 17 C.F.R. § 240.10b-5.

These are the bases of the Plaintiffs’ RICO claim. The Plaintiffs alleged that between January, 1993, and January, 1995, the Defendants carried out a scheme to take over BMT, prevent BMT from paying its debt to Mr. Whitman, and prevent BMT from making further rental payments to him pursuant to the Agreement. During that time, the Defendants stopped participating in regular BMT meetings and held their own “irreguiar” meetings, despite Mr. Whitman’s instructions to the contrary.

Furthermore, the Plaintiffs allege that in July 1992, Defendant Bares broke into the Elgin Building for the purpose of committing a burglary.

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168 F.R.D. 121, 1996 U.S. Dist. LEXIS 10271, 1996 WL 406149, Counsel Stack Legal Research, https://law.counselstack.com/opinion/binghamton-masonic-temple-inc-v-bares-nynd-1996.