Painewebber, Inc. v. Can Am Financial Group, Ltd.

121 F.R.D. 324, 12 Fed. R. Serv. 3d 18, 1988 U.S. Dist. LEXIS 6773, 1988 WL 73393
CourtDistrict Court, N.D. Illinois
DecidedJune 30, 1988
DocketNo. 87 C 6890
StatusPublished
Cited by16 cases

This text of 121 F.R.D. 324 (Painewebber, Inc. v. Can Am Financial Group, Ltd.) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Painewebber, Inc. v. Can Am Financial Group, Ltd., 121 F.R.D. 324, 12 Fed. R. Serv. 3d 18, 1988 U.S. Dist. LEXIS 6773, 1988 WL 73393 (N.D. Ill. 1988).

Opinion

[327]*327OPINION AND ORDER

MAROVITZ, Senior District Judge.

PaineWebber’s Motion For Sanctions

Currently pending before this court is the motion by plaintiff PaineWebber, Incorporated (hereinafter “PaineWebber”) for sanctions pursuant to Federal Rule of Civil Procedure 11 (“Rule 11”) and 28 U.S.C. § 1927 (“§ 1927”). To better understand the facts making up the backdrop of this motion (hereinafter “Motion For Sanctions”), a chronology of significant and relevant events is in order.

Background

On August 5, 1987, PaineWebber filed suit in this court, naming as defendants Can Am Financial Group, Ltd. (“Can Am”), Timothy McDonald (“McDonald”) and Mark George (“George”) (collectively, “Defendants”). The complaint alleged that Defendants opened a securities account at PaineWebber, had PaineWebber purchase for them stock in Canadian Platinum Refineries (“CPR”) worth $319,338.65, and tendered to PaineWebber two checks: one for $10,000 (for which there is no dispute) and one for $309,338.65 (which subsequently “bounced”). The complaint stated that after crediting their account for the amount received on the later sale by PaineWebber of the CPR stock, Defendants still owed PaineWebber $245,308.66. See, PaineWebber, Inc. v. Can Am Financial Group, Ltd., 668 F.Supp. 667 (N.D.Ill.1987).

On August 19,1987, PaineWebber served McDonald personally at the apartment in Chicago that was leased for him by George. The process server also left with McDonald a summons and complaint for George and Can Am. With regard to the service on Can Am) the service on it was technically correct since McDonald was an officer in the corporation. Fed.R.Civ.Proc. 4(d)(3). However, while this service was technically correct, the normal and usual procedure for serving a corporation is to serve its registered agent.

As the Defendants had yet to file an appearance by September 14, 1987, the Clerk of the Court (“Clerk”), acting upon the request of PaineWebber, entered an order of default against the Defendants. On that same day, in accordance with Federal Rule of Civil Procedure 55(b)(1), the Clerk entered a default judgment against the Defendants in the amount of $246,-705.61, being the amount of the debt plus interest.

Citations to discover assets were issued by the Clerk on September 24, 1987 for each of the Defendants and for three banks where Defendants maintained accounts. The return date on the citations was October 7, 1987.

On October 7, Attorney Judith A. Halprin (“Halprin”) appeared in open court. She identified herself as the attorney for McDonald. She also stated that Attorney Jerome Feldman (“Feldman”) could not be present, but that he would be representing Can Am and George. At that time, the court stated that it would grant the Defendants leave to file motions to vacate, if they so desired. The court ordered McDonald to file his Motion To Vacate by October 21, and suggested that any other defendant’s motions be filed by that date, also.

On October 13, 1987, Feldman filed with the Clerk his appearance on behalf of Can Am and George. (The Clerk’s docket sheet and the court file show that, to date, no appearance form has been filed with regards to Halprin and her representation of McDonald.)

Separate motions to vacate the default judgments were filed by each of the Defendants on October 27, 1987. (This Opinion, however, will concentrate on Can Am's motion, as it is the only one relevant to the pending Motion For Sanctions.) In the “Motion of Can Am Financial Group, Ltd. to Vacate ex parte Judgment of September 14, 1987 Pursuant to Rule 60(b) of F.R.C. P.” (hereinafter “Can Am’s Motion to Vacate”), Can Am admits in Paragraph 4 that it owed PaineWebber the money for the purchase of the stock, but that it did not have the funds available at the time. Motion to Vacate at p. 2; see also, “Jerome Feldman’s Response to Motion for Sanctions Pursuant to Rule 11 and U.S.C. 28, [328]*328§ 1927” (hereinafter “Feldman’s Response”) at p. 2. Paragraph 5 of Can Am’s Motion to Vacate was Can Am’s attempt at raising a “meritorious defense” to the complaint. In Paragraph 5, Can Am states that if PaineWebber had “not sold the stock in the manner in which it did, which caused a depression in its value on the Canadian stock exchange, then the defendant, Can Am ... could have raised the necessary funds to satisfy the indebtedness.” Motion to Vacate at p. 2. At first glance, Paragraph 5 seems to raise a “prevention” defense. See, e.g., Ethyl Corp. v. United Steelworkers of America, 768 F.2d 180 (7th Cir.1985), cert. denied, 475 U.S. 1010, 106 S.Ct. 1184, 89 L.Ed.2d 300 (1986). However, subsequent filings cast this Paragraph as asserting that PaineWebber may have sold the CPR stock in an improper manner, possibly going to PaineWebber’s duty to mitigate damages. See, Feldman’s Sur-reply to Motion for Sanctions (“Feldman Sur-reply”) at p. 5.

Also on October 27, 1987, Halprin had filed with the court the “Motion To Vacate Default Judgment Against Timothy McDonald” (hereinafter “McDonald’s Motion To Vacate”). The court notes that McDonald’s Motion To Vacate was signed by McDonald himself, not by his counsel, Halprin.

PaineWebber filed its response to Can Am’s Motion to Vacate on November 11, 1987. Attached to this response, and made part of it by reference, were two signed declarations (made under the penalty of perjury): one by Grant L. Ellington, the manager of PaineWebber’s Northbrook, Illinois office (“the Ellington declaration”); and one by Timothy Daly, the Manager of Investigations and Market Surveillance of the Alberta Stock Exchange in Calgery, Alberta, Canada (“the Daly declaration”). The Ellington declaration denied that PaineWebber improperly sold the CPR stock, and detailed how PaineWebber took steps to maximize the price that PaineWebber would receive. Both the Ellington and Daly declarations state that on July 8,1987 (the day PaineWebber was to begin selling off the CPR stock), at 11:30 A.M. (local time),, the Alberta Stock Exchange halted trading in CPR stock at the request of CPR management. Both declarations state that when trading in CPR stock resumed on July 27, 1987, the market price dropped dramatically. The Daly declaration states that when trading was halted on July 8, CPR was selling at $2.10 per share; CPR opened on July 27 at $1.99 per share; and CPR closed on July 27 at $1.00 per share.

On December 11, 1987, Halprin and Feldman filed with this court a document entitled “Joint Defense Submissions In Response to Plaintiff’s Objections to Motions to Vacate Default Judgments.”

On December 22,1987, due to the contradictions contained in the various briefs and affidavits submitted to the court, the court ordered PaineWebber employees Grant Ellington and Thomas Rice along with defendants George and McDonald to be in court on January 20, 1988 for the purpose of testifying as to the various motions to vacate and as to their respective affidavits and declarations.

The court held an evidentiary hearing on January 20, 1988 in accordance with the court order of December 22, 1987.

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Bluebook (online)
121 F.R.D. 324, 12 Fed. R. Serv. 3d 18, 1988 U.S. Dist. LEXIS 6773, 1988 WL 73393, Counsel Stack Legal Research, https://law.counselstack.com/opinion/painewebber-inc-v-can-am-financial-group-ltd-ilnd-1988.