State Mutual Life Assurance Co. of America v. Arthur Andersen & Co.

65 F.R.D. 518, 19 Fed. R. Serv. 2d 957, 1975 U.S. Dist. LEXIS 14326
CourtDistrict Court, S.D. New York
DecidedJanuary 16, 1975
DocketNo. 71 Civ. 4036
StatusPublished
Cited by15 cases

This text of 65 F.R.D. 518 (State Mutual Life Assurance Co. of America v. Arthur Andersen & Co.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State Mutual Life Assurance Co. of America v. Arthur Andersen & Co., 65 F.R.D. 518, 19 Fed. R. Serv. 2d 957, 1975 U.S. Dist. LEXIS 14326 (S.D.N.Y. 1975).

Opinion

MEMORANDUM DECISION AND ORDER

WERKER, District Judge.

Almost three years after the filing of its answer, defendant and third-party plaintiff Arthur Andersen & Co. (“Andersen”) seeks to bring three additional third-party defendants, Aristocrat Angus Ranch, Ben R. Houston and Charles D. Alexander (“the Aristocrat group”) into this action. Because of the time interval between the filing of Andersen’s answer and its motion to implead the Aristocrat group, questions relating to the reasons for the delay, prejudice to the parties, and the purposes of Rule 14 of the Federal Rules of Civil Procedure must be examined.

BACKGROUND

This action was instituted after the financial collapse of Black Watch Farms, Inc., the corporate successor of Black Watch Farms, a New York limited partnership, which raised, bred, maintained and sold purebred Aberdeen Angus cattle for its own account and for the account of herdowners who had purchased their herds primarily for tax shelter purposes. Plaintiffs are State Mutual Life Assurance Company (“State Mutual”) and three affiliated insurance companies which during the period 1968 through 1970 bought $10,350,000 of Black Watch debt securities. These securities were sold in 1970 for approximately $80,000. Defendant Andersen, as auditors for Black Watch, certified the Black Watch financial statements for fiscal years ending June 30, 1968 and June 30, 1969 and rendered a “compliance certificate” with respect to a 1968 loan agreement. Plaintiffs assert claims against Andersen based on violation of the securities laws, common law fraud, negligence and breach of contract. Plaintiffs’ basic contention is that the 1968 and 1969 financial statements and Andersen’s opinion thereon were false and misleading and omitted to state material facts related to the financial effects of certain embezzlements and other improper acts engaged in by Black Watch through Jack R. Dick, the former general partner and chief executive officer of Black Watch Farms.1

Within ten days of the filing of its answer, Andersen filed a third-party complant against third-party defendants Jack R. Dick, Joseph A. Bonura, Empire National Bank (formerly County National Bank) and Herman L. Meekler. Bonura was the comptroller and chief financial officer of both Black Watch Farms and Black Watch Farms, Inc.; Empire National Bank maintained depository and checking accounts for Black Watch Farms and its corporate succes[520]*520sor; Meckler was a director, president and chief executive officer of Black Watch Farms, Inc., as well as chairman of the board and chief executive officer of the Bermec Corporation. Andersen alleges that Dick, Bonura, Empire and Meckler, committed a fraud and deceit upon Andersen during the course of its examination of the Black Watch financial statements by intentionally concealing and withholding certain information from Andersen concerning what has become known in this litigation as the “official check scheme.”

Dick is portrayed as the mastermind of the scheme. It is alleged that he created fraudulent invoices reflecting purchases of cattle from four ranches at vastly inflated prices. The cattle were sold to Black Watch on an installment basis with each installment listed on the invoices. For each installment payment Dick caused Black Watch to issue a check to Empire to purchase an official (cashier’s) check of Empire payable to the appropriate vendor. While some of the official cheeks were sent to the. vendors, others were returned to Empire which would then cash the check for Dick over a purported blank indorsement on the name of the particular vendor. Dick is alleged to have received proceeds of over $3,000,000 from the scheme.

Andersen alleges that Empire, Meckler and Bonura were participants in the scheme, and had concealed and withheld information from Andersen. The Aristocrat group is also alleged to have been involved in the scheme. Aristocrat Angus Ranch was one of the four ranches which sold cattle to Black Watch. Ben R. Houston and Charles D. Alexander are the two partners of Aristocrat Angus Ranch. The fraudulent acts alleged to have been committed by the Aristocrat group include: (1) the delivery of a quantity of blank stationery containing the official letterhead of Aristocrat Angus Ranch to Dick—Dick allegedly used this stationery to prepare fictitious invoices covering cattle sales to Black Watch; (2) the concealing of the scheme by mailing the true and correct cattle invoices directly to Dick in New York, rather than to Black Watch, and (3) ignoring Black Watch’s written requests to confirm to Peat, Marwick, Mitchell & Co. (the prior auditors) and Andersen, the correct balance of money owed to Aristocrat by Black Watch. According to Andersen, by permitting the impleading of the Aristocrat group, the cast of characters involved in the official check scheme would be completed.

After Andersen filed its original third-party complaint against Dick, Bonura, Meckler and Empire Bank, a series of pleadings were instituted by all the parties which have been described by then District Judge Gurfein, in a prior opinion in this case, as “somewhat reminiscent of Chitty’s book on common law pleadings.” Briefly summarized the pleadings show that Empire Bank has counterclaimed against Andersen and cross-claimed against Andersen, Bonura, Meckler and Dick. Dick has counterclaimed against Andersen and Meckler and Bonura have cross-claimed against Andersen. State Mutual has filed Rule 14 complaints against Empire Bank and Meckler.

CURRENT STATUS OF THE ACTION

On November 8, 1974, a pre-trial conference was held and the date of November 15, 1975 was established as a cut-off date for the completion of all discovery. Discovery to date has proceeded in three phases. First, plaintiff has obtained documents and taken depositions from Empire Bank and several of its employees. This phase of discovery is nearly completed. Second, plaintiff took discovery of the Aristocrat group. Third, plaintiff has begun discovery against Andersen. This phase has involved the production of Andersen’s work papers for the Black Watch audits and the taking of depositions of Andersen employees. Several more depositions of Andersen employees are also planned. [521]*521Andersen and the other third-party defendants must still conduct their own discovery. To date, over 35,000 documents have been produced and approximately 40 days of depositions have been taken. Andersen has estimated that discovery for the entire case is approximately fifty percent completed.

RULE 14(a) AND LOCAL CIVIL RULE 16

A party who seeks to implead third-party defendants after 10 days from the filing of its answer must obtain leave of court. Rule 14(a) Federal Rules of Civil Procedure. Such a motion is within the sound discretion of the District Court which must balance the benefits of liberal third-party practice—judicial economy, consistency of results and the avoidance of circuity of action—against the possible prejudice to the plaintiff and third-party defendants. Olympic Corp. v. Societe Generale, 462 F.2d 376 (2d Cir. 1972); Braun v. Hecht, 21 F.R.D. 391 (S.D.N.Y.1957); Johns Hopkins University v. Hutton, 40 F.R.D.

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Bluebook (online)
65 F.R.D. 518, 19 Fed. R. Serv. 2d 957, 1975 U.S. Dist. LEXIS 14326, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-mutual-life-assurance-co-of-america-v-arthur-andersen-co-nysd-1975.