source: Caselaw Access Project

author: HAIGHT, District Judge.

license: Public Domain

text:
    Raymond SLOMIAK, Plaintiff, v. BEAR STEARNS & CO., Defendant.
    82 Civ. 1542-CSH.
    United States District Court, S.D. New York.
    July 24, 1984.

      Barry J. Pinkowitz, New York City, for plaintiff; Harold Wm. Suckenik, New York City, of counsel.
    Reavis & McGrath, New York City, for defendant; Nathaniel L. Gerber, Carol Zerbe Hurford, New York City, of counsel.
   MEMORANDUM OPINION AND ORDER

HAIGHT, District Judge.

Plaintiff Raymond Slomiak brings this action pursuant to § 10(b) of the Securities Exchange Act of 1934 (“the Act”), 15 U.S.C. § 78j(b), and Rule 10b-16 (“the Rule”) promulgated thereunder, 17 C.F.R. § 240.10b-16, to redress alleged violations by defendant Bear, Stearns & Co. (“Bear Stearns”) of Rule 10b-16’s credit information disclosure provisions. The case is presently before the Court on defendant’s motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) and plaintiff’s motion for summary judgment. For the reasons stated, both motions are denied.

I.

Background

The events giving rise to this action are not complicated. On May 4, 1977, plaintiff Slomiak opened a margin account with defendant Bear Stearns. On August 1, 1977, he opened a repurchase account with that firm. Each account was introduced to Bear Stearns by MKI Securities Corporation (“MKI”), another securities broker, with Bear Stearns acting in the capacity of clearing broker. (Aronson Aff. ¶ 5). Over the next three years, plaintiff purchased several millions of dollars in government bonds in his margin account, paying less than ten percent of the purchase price in cash. The remainder of the purchase price was loaned to plaintiff by Bear Stearns, initially in his margin account and subsequently in his repurchase account, the account to which the bonds had been transferred. (Slomiak Aff. ¶¶ 2 and 4).

During the years 1977 through 1979, Bear Stearns periodically debited plaintiff’s accounts for the interest charged on its loans. In October of 1979, plaintiff was notified by telegram of a margin call on his account. He failed to produce the $155,000 in additional margin requested, and Bear Stearns liquidated the bonds in plaintiff’s account with a consequent loss to plaintiff of $256,285. (Id. ¶¶ 5-6).

II.

Defendant’s Motion to Dismiss

A. Private Right of Action under Rule 10b-16

The crux of plaintiff’s complaint is that, at the time he opened his margin and repurchase accounts with Bear Stearns, the firm allegedly failed to provide him with a written statement setting forth the terms under which credit would be extended to him, in violation of Section 10(b) of the 1934 Act and Rule 10b-16 promulgated thereunder. Defendant moves to dismiss the complaint on the ground that Rule 10b-16 does not create a private right of action for damages; accordingly, irrespective of the truth or falsity of plaintiff’s allegations, his claim must be dismissed as a matter of law.

Rule 10b-16 provides, in pertinent part, as follows:

“(a) It .shall be unlawful for any broker or dealer to extend credit, directly or indirectly, to any customer in connection with any securities transaction unless such broker or dealer has established procedures to assure that each customer: “(1) Is given or sent at the time of opening the account, a written statement or statements disclosing (i) the conditions under which an interest charge will be imposed; (ii) the annual rate or rates of interest that can be imposed; (iii) the method of computing interest; (iv) if rates of interest are subject to change without prior notice, the specific conditions under which they can be changed; (v) the method of determining the debit balance or balances on which interest is to be charged and whether credit is to be given for credit balances in cash accounts; (vi) what other charges resulting from the extension of credit, if any, will be made and under what conditions; and (vii) the nature of any interest or lien retained by the broker or dealer in the security or other property held as collateral and the conditions under which additional collateral can be required.”

17 C.F.R. § 240.10b-16.

Only a handful of district courts, and one circuit court, have addressed the question of whether a private right of action may be implied under Rule 10b-16. Most recently, the Court of Appeals for the Second Circuit expressly declined to consider the issue as unnecessary to the particular determination before it. Zerman v. Ball, Fomon, and E.F. Hutton, 735 F.2d 15 at 23 (2d Cir.1984), (“In the circumstances, we find it unnecessary to address the question of the existence of a private right of action under ... Rule 10b-16 promulgated under [the 1934] Act.”). The question therefore remains an open one in this Circuit.

A useful starting point is a review of the continually evolving judicial formulations of the circumstances giving rise to a private right of action. In recent years, the Supreme Court has pursued an increasingly restrictive approach to implying private remedies. See Merrill Lynch, Pierce, Fenner & Smith v. Curran, 456 U.S. 353, 374-78, 102 S.Ct. 1825, 1837-39, 72 L.Ed.2d 182 (1982). The relatively liberal inferences endorsed by the Court in J.I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964), wherein the broad remedial purposes of § 14(a) of the Securities Exchange Act were held to give rise to a private right of action for damages, were considerably narrowed a decade later in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). Cort set forth four factors to be considered by a court in determining whether a private right of action is implicit in a given statute. These included legislative intent, consistency of such a remedy with the underlying purposes of the legislative scheme, whether the plaintiff was a member of the class for whose benefit the statute was enacted, and whether the cause of action is one traditionally relegated to state law. Id. at 78, 95 S.Ct. at 2087-88. More recently, in Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 14, 100 S.Ct. 242, 244, 62 L.Ed.2d 146 (1979), Touche Ross & Co. v. Redington, 442 U.S. 560, 575, 99 S.Ct. 2479, 2488, 61 L.Ed.2d 82 (1979), and Merrill Lynch, supra, the Court narrowed the proper mode of analysis even further to a focused inquiry on the question of congressional intent, either implicit or explicit, as evidenced by the language of the statute, the contemporary context of its enactment, its legislative history, and its place in the overall enforcement scheme. Transamerica, supra, 444 U.S. at 23-24, 100 S.Ct. at 249.

Several factors make it difficult to discern congressional intent with respect to Rule 10b-16, as the differing analyses of the various courts that have considered the question demonstrate. In Liang v. Dean Witter & Co., Inc., 540 F.2d 1107 (D.C.Cir.1976), one of the first judicial interpretations of the Rule, the Court of Appeals for the D.C. Circuit had occasion to discuss its evolution in considerable detail. As described in Liang, at the time Congress enacted the Truth in Lending Act (“TILA”), 15 U.S.C. § 1601 et seq., it expressly exempted securities dealers from compliance with TILA, relying on the Securities and Exchange Commission to adopt its own analogous disclosure rule. The Senate Report stated as follows:

“The Committee has been informed by the Securities and Exchange Commission that the Commission has adequate regulatory authority under the Securities Exchange Act of 1934 to require adequate disclosure of the costs of such credit. The Committee has also been informed in a letter from the SEC that ‘the Commission is prepared to adopt its own rules to whatever extent may be necessary.’
“In recommending an exemption for stockbroker margin loans in the bill, the Committee intends for the SEC to require substantially, similar disclosure by regulation as soon as it is possible to issue such regulation.”
S.Rep. No. 392, 90th Cong., 1st Sess. 9 (1967).

As stated by Judge Wilkey in Liang, supra:

“Rule 10b-16 represents the SEC implementation of the instruction from Congress ____ The SEC authority for the Rule is derived, of course, from the prohibition in Section 10(b) of the Securities Exchange Act of 1934 against the use of ‘any manipulative or deceptive device’ in connection with the purchase or sale of any security. Tracking the express purpose of the Truth in Lending Act, the SEC announced the disclosure sought by Rule 10b-16 as follows:
“ ‘The initial disclosure is designed to insure that the investor, before his account is opened, understands the terms and conditions under which credit charges will be made. This will enable him to compare the various credit terms available to him and to understand the methods used in computing the actual credit charges.’ ” SEC Release No. 8733, 34 F.R. 19717.

Liang, supra, 540 F.2d at 1111.

With respect to the narrow question presently before this Court — i.e., the implication of a private right of action under the Rule — the circuit court observed in a footnote:

“It may safely be assumed that noncompliance with Rule 10b-16 provides the basis for a private cause of action. It is already established that a violation of Rule 10b-5, a rule of disclosure analogous to Rule 10b-16, implies a civil remedy. Supt. of Insurance v. Bankers Life & Cas. Co., 404 U.S. 6, 13 n. 9 [92 S.Ct. 165, 169 n. 9, 30 L.Ed.2d 128] (1971). Our recognition here accords with the view that ‘private enforcement of Commission rules may “[provide] a necessary supplement to Commission action.” ’ Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 730 [95 S.Ct. 1917, 1923, 44 L.Ed.2d 539] (1975), quoting J.I. Case Co. v. Borak, 377 U.S. 426, 432 [84 S.Ct. 1555, 1560, 12 L.Ed.2d 423] (1964).” Liang, supra, 540 F.2d at 1113 n. 25.

In a similarly cursory, but contrary, holding, one district court in this Circuit dismissed a Rule 10b-16 claim on the ground that plaintiff had “cited no case (and the court is aware of none) holding that a plaintiff may possess a private right of action for damages under Rule 10b-16.” Establissement Tomis v. Shearson Hayden Stone, 459 F.Supp. 1355 (S.D.N.Y.1978). Whether the Tomis court would have ruled differently if its attention had been directed to footnote 25 of the Liang opinion is open to speculation. In any event, more useful are two cases that have addressed in some depth the question of a private damages remedy under the Rule. It is these two cases that, in large measure, animate the parties’ dispute here.

In Haynes v. Anderson & Strudwick, Inc., 508 F.Supp. 1303 (D.Va.1981), the district court’s application of the factors set forth in Cort v. Ash, supra, led it to conclude, by a somewhat circuitous route, that Congress intended for Rule 10b-16 to afford individual plaintiffs a private right of action. More specifically, the court reasoned that Congress’s creation of an express private remedy under TILA “weighs heavily in favor of an implied cause of action for noncompliance with Rule 10b-16. Indeed, the denial of a remedy under the Rule would be inconsistent with the express intent of Congress that customers have a remedy for noncompliance with an analogous statute.” Id. at 1320. The Haynes court went on to observe that because the underlying objectives of TILA and Rule 10b-16 are the same — “that is, customers should be informed about the terms and conditions of the extension of credit” — the Act and the Rule should be read in harmony. Id.

This line of argument is not, in my view, particularly persuasive. Congruity of purpose between TILA and Rule 10b-16 does not mandate identical enforcement mechanisms. Accordingly, Congress’s direction that the SEC adopt a rule requiring disclosure “substantially similar” to that required under TILA does not conclusively demonstrate its intent that compliance be achieved through private action versus agency enforcement.

The court in Furer v. Paine, Webber, (CCH) Fed.Sec.L.Rep. 93,493, ¶ 98,701 (C.D.Cal.1982), also looked to the legislative history of the Truth in Lending Act for guidance in construing Rule 10b-16. While its approach was similar to that of the Haynes court, its conclusion was not. The Furer court found equally plausible the notion that Congress exempted brokers from TILA “because it did not wish to extend the private right of action extended therein to apply to brokers.” Id. at 93,495. The court went on to note that:

“Congress chose to leave promulgation and' enforcement of analogous regulations to the SEC, and the SEC has seen fit to rely on its own enforcement resources, father than enlisting private enforcement by creating an express private right of action. Congress’s inaction in this area is, therefore, subject to conflicting interpretations.
“In light of the ambiguity of the legislative 'history of the Truth in Lending Act, the Court holds that a private right of action is not available under Rule 10b-16. The creation of such a private remedy would open a potentially large new area for litigation. In the absence of a clear and unambiguous showing that Congress intended such a result, the Court declines to find a private right of action implied in the Rule.”

Id.

The difficulty in accepting either the Furer or the Haynes court’s analysis of Rule 10b-16 results from their effort to discern congressional intent derivatively; that is, by extrapolation from an analogous, but otherwise unrelated, statute. Generally, of course, the question of private remedies focuses on a particular statute rather than a rule promulgated pursuant to a statute, see, e.g., Touche Ross, supra (Section 17(a) of the Securities Exchange Act); Piper v. Chris-Craft Industries, Inc., 430 U.S. 1, 97 S.Ct. 926, 51 L.Ed.2d 124 (1977) (Section 14(e) of the Securities Exchange Act); Dan River, Inc. v. Unitex Ltd., 624 F.2d 1216 (4th Cir.1980), cert. denied, 449 U.S. 1101, 101 S.Ct. 896, 66 L.Ed.2d 827 (1981) (Section 13 of the Securities Exchange Act); Leff v. CIP Corp., 540 F.Supp. 857, 864 (S.D.Ohio 1982) (Sections 13(d) and 14(a) of the Securities Exchange Act), and the inquiry into congressional intent proceeds by a review of the various House and Senate reports that comprise that statute’s legislative history. The situation necessarily becomes more complicated where, as here, the parties are contesting the availability of a private remedy under an agency regulation that, strictly speaking, has no independent legislative history from which to construe congressional intent. In this situation, the mode of analysis suggested in Transamerica, supra, is not directly applicable.

The inconsistent judicial interpretations of Rule 10b-16 are the product, I would suggest, of various courts’ efforts to extract from the legislative history of TILA some indication of Congress’s intent with respect to a rule promulgated pursuant to an entirely different statute. Congress’s remarks at the time of TILA’s enactment clearly demonstrate its intent that the SEC draft a similar credit disclosure rule applicable to brokers. But the only indication of congressional intent pertinent to the narrow question of a private right of action under 10b-16 comes, in my view, from the Senate committee’s acknowledgment that the SEC had adequate rulemaking authority to require such disclosure under the anti-fraud provisions of the Securities Exchange Act of 1934 — i.e., under Section 10(b) of the Act. S.Rep. No. 392, 90th Cong., 1st Sess. 9 (1967). It was amply clear then, as it is now, that a private right of action is available under § 10(b), as well as Rule 10b-5 of the 1934 Act. See Her man & MacLean v. Huddleston, 459 U.S. 375, 103 S.Ct. 683 n. 10, 74 L.Ed.2d 548 (1983) (“By 1961, four courts of appeals and several district courts in other circuits had recognized the existence of a private remedy under Section 10(h) and Rule 10b-5 ____ By 1969, the existence of a private cause of action had been recognized by ten of the eleven courts of appeals.”); Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 730, 95 S.Ct. 1917, 1922, 44 L.Ed.2d 539 (1975); Superintendent of Insurance v. Bankers Life & Casualty Co., 404 U.S. 6, 13 n. 9, 92 S.Ct. 165, 169 n. 9, 30 L.Ed.2d 128 (1971) (“It is now established that a private right of action is implied under § 10(b).”). Thus, to the extent Congress’s intentions or expectations may be gleaned from its directive to the SEC to exercise its rulemaking authority pursuant to § 10(b) of the 1934 Act, it is logical to presume that Congress intended such a rule to accord a private remedy consistent with the statute authorizing it.

This, in substance, is the conclusion recently reached by another district court in Abeles v. Oppenheimer, 597 F.Supp. 532, No. 83-1468 (N.D.Ill. Nov. 7, 1983). The Abeles court rejected as both unproductive and misplaced past judicial interpretations of Rule 10b-16 that resolved the private remedy question by reference to TILA’s legislative history rather than by reference to Congress’s intent with respect to Section 10(b), the relevant implementing statute. Noting that the drafters of § 10(b) explicitly contemplated implementation by rule-making, the court went on to observe as follows:

“Rule 10b-16, like Rule 10b-5, directly advances the purpose of § 10(b). It makes unlawful a particular ‘manipulative or deceptive device’ — the extension of credit with undisclosed terms and conditions. In light of the Supreme Court’s holding in Superintendent of Insurance, it is no longer open to question that Congress intended for there to be a private right of action under § 10(b). Congress designed the statute to be implemented with rules, and Rule 10b-16 is consonant with its purpose. The court concludes, therefore, that a private right of action exists under Rule 10b-16.”

Abeles, 597 F.Supp. at 536.

I concur in this conclusion. Defendant’s motion to dismiss plaintiff’s Rule 10b-16 claim is denied.

B. Section 29(b) of the 1934 Act

In addition to the actual losses suffered in connection with the liquidation of his bonds, plaintiff seeks rescission of his bond transactions pursuant to § 29(b) of the 1934 Act, 15 U.S.C. § 78cc. That section provides, in pertinent part, as follows:

“Every contract made in violation of any provision of this chapter or of any rule or regulation thereunder, and every contract ... heretofore or hereafter made, the performance of which involves the violation of, or the continuance of any relationship or practice in violation of, any provision of this chapter or any rule or regulation thereunder, shall be void....”

While the proper construction of § 29(b)’s extremely broad language has been the subject of both judicial and scholarly debate, see generally Gruenbaum & Steinberg, Section 29(b) of the Securities Exchange Act of 1934: A Viable Remedy Awakened, 48 Geo.Wash.L.Rev. 1 (1979), I agree with defendant that the remedy of rescission is not available to plaintiff here. The complaint alleges that Bear Stearns failed to send plaintiff a written credit disclosure statement in violation of Rule 10b-16 at the time he opened his accounts; it does not allege that the customer agreements establishing his margin and repurchase accounts at Bear Stearns were themselves unlawful. In a factually similar case, Zerman v. Jacobs, 510 F.Supp. 132 (S.D.N.Y.1981), aff'd, 672 F.2d 901 (2d Cir.1981), Judge Weinfeld rejected the remedy plaintiff now seeks. The dispute in Zerman arose, as here, out of the liquidation of plaintiff’s margin securities account after plaintiff’s purported failure to respond to a margin call. Plaintiff, alleging that defendant had improperly refused to accept the securities tendered in satisfaction of the call, sought, inter alia, rescission of all securities transactions engaged in by defendant to liquidate his account. Noting that “[t]here is no suggestion that the basic customer agreement plaintiff signed is not lawful,” id. at 135, Judge Weinfeld rejected plaintiffs argument on the ground that “under § 29(b) of the Exchange Act, only unlawful contracts may be rescinded, not unlawful transactions made pursuant to lawful contracts.” Id. See also Palmer v. Thomson & McKinnon Auchincloss, Inc., 474 F.Supp. 286, 291 (D.Conn.1979) (rejecting plaintiffs argument that “Section 29(b) should not only apply to the basic contract between the parties but also to each transaction that occurs thereunder.”).

In Drasner v. Thomson McKinnon Securities, 433 F.Supp. 485 (S.D.N.Y.1977), Judge Pollack construed § 29(b) as “rendering] void those contracts which by their terms violate the Act or the rules and regulations thereunder..., for it is only such contracts which are made ‘in violation of,’ or ‘the performance of which involves the violation of’ the statute and the rules and regulations thereunder.” Id. at 501-02. While plaintiff Slomiak challenges Judge Pollack’s conclusion as contrary to the plain language of § 29(b), and views as unsupportable the distinction between an “unlawful contract” and an “unlawful transaction,” I think the distinction is a reasonable one if § 29(b) is viewed as a remedy for contracts which in their inception or as performed are, or become, inherently violative of the Act or regulations thereunder. Judge Pollack’s focus on contracts which “by their terms” are illegal may fairly be interpreted more broadly to foreclose the remedy of rescission where, as here, the violation complained of is collateral or tangential to the contract between the parties. As stated by Judge Friendly in his dissenting opinion in Pearlstein v. Scudder & German, 429 F.2d 1136 (2d Cir.1970), cert. denied, 401 U.S. 1013, 91 S.Ct. 1250, 28 L.Ed.2d 550 (1971):

“Despite the Draconian language, § 29(b) does not provide a pat legislative formula for solving every case in which a contract and a violation concur.' Rather it was a legislative direction to apply common-law principles of illegal bargain, enacted at a time when it seemed much more likely than it might now that courts would fail to do this without explicit legislative instruction.”

Id. at 1149.

This reading of § 29(b) is consistent with the Fifth Circuit’s opinion in Regional Properties, Inc. v. Financial and Real Estate Consulting Co., 678 F.2d 552 (5th Cir.1982), wherein the court interpreted Section 29(b) as “rendering] voidable those contracts that are either illegal when made or as in fact performed____” Id. at 560. The illegality involved in Regional, unlike the violation alleged here, was inseparable from the performance of the contract plaintiff was seeking to rescind. Indeed, the act of performance constituted the violation: defendant had never registered as a broker-dealer with the SEC and, by carrying out its obligations under the contract, violated section 15(a)(1) of the Securities Exchange Act. While the contract did not “by its own terms,” or in vacuo, violate the Act, there could be no performance under the contract without violating the Act. See also Eastside Church of Christ v. National Plan, Inc., 391 F.2d 357 (5th Cir.), cert. denied, 393 U.S. 913, 89 S.Ct. 234, 21 L.Ed.2d 198 (1968).

In the instant action, plaintiff contends that defendant failed to send a written disclosure statement to him at the time he opened his accounts, thereby violating the rule requiring securities dealers who plan to extent credit to customers to have established procedures to assure that such disclosure is made in a timely fashion. In other words, defendant failed to comply with an obligation that, by the terms of Rule 10b-16, arises at the time a margin or repurchase account is. opened but which is clearly collateral to the contractual agreement governing that account. .The fact that the timing of disclosure under Rule 10b-16 is keyed to the opening of a margin account, so that failure to have provided the required written statement at that time automatically triggers a violation of the Rule, does not justify rescission of the account agreement itself or transactions undertaken pursuant to that agreement. This is not, in my view, the kind of circumstance Section 29(b) is intended to redress. Accordingly, to the extent plaintiff seeks rescission of his bond transactions pursuant to § 29(b), his request is denied.

D. Elements of a Rule 10b-16 Claim

Defendant also moves to dismiss the complaint on the ground that plaintiff has failed adequately to allege in his amended complaint the elements requisité to a § 10(b) and Rule 10b-16 cause of action. While plaintiffs complaint is by no means detailed, it does not suffer from the fatal deficiencies defendant suggests. The claim is a simple one and plaintiffs allegations, rather than “conclusory,” are comparably spare. Paragraph 13 of the amended complaint states as follows:

“13. The failure of Bear Stearns to send plaintiff the written credit disclosure statement required by Rule 10b-16 was intentional and/or reckless. The information required to be disclosed to plaintiff pursuant to Rule 1 Ob-16 was material to plaintiffs investment decision.”

The complaint further alleges that, by virtue of defendant’s failure to disclose credit information pertinent to plaintiff’s investment decision, plaintiff has been damaged. (Comp. ¶ 14).

The crux of defendant’s argument appears to be that plaintiff has not sufficiently alleged the elements of reliance and causation — i.e., that he “would not have acted as [he] did had [he] known of the information withheld by defendants,” Competitive Associates, Inc. v. Laventhol, Krekstein, Horwath, 516 F.2d 811, 814 (2d Cir.1975), and that defendant’s failure to disclose said information caused his injury. A logical and necessary distinction has-been made between § 10(b) claims alleging affirmative misrepresentations and those alleging nondisclosure, as in the instant action. In the case of an omission, the usual bifurcated inquiry — (1) Did plaintiff believe what defendant said?; and (2) Did that belief cause plaintiff to act? — obviously is inapplicable, and the question is more appropriately phrased as one of materiality. As stated by the Supreme Court in Affiliated Ute Citizens v. United States, 406 U.S. 128, 92 S.Ct. 1456, 31 L.Ed.2d 741 (1972): “All that is necessary is that the facts withheld be material in the sense that a reasonable investor might have considered them important in the making of this decision____ This obligation to disclose and this withholding of a material fact establish the requisite element of causation in fact.” Id. at 153-54, 92 S.Ct. at 1472. See Pellman v. Cinerama, 89 F.R.D. 386, 387 (S.D.N.Y.1981) (“To establish causation under section 10(b) ..., a plaintiff must prove that an omission was material; he need not prove that he relied upon the absence of the information in making his decision.”). Further, plaintiff is not required to prove that the defendant’s act was the exclusive cause of his injury, but rather that it was a “significant contributing cause.” Wilson v. Comtech Telecommunications Corp., 648 F.2d 88, 92 (2d Cir.1981), quoting Herzfeld v. Laventhol, Krekstein, Horwath & Horwath, 540 F.2d 27, 34 (2d Cir.1976).

With these standards, I find the allegations of the complaint sufficient to set forth a cause of action pursuant to § 10(b) and Rule 10b-16, as well as sufficiently specific to apprise defendant of the exact nature of the violation alleged, i.e., failure to disclose the specific information delineated in Rule 10b-16. See Angelastro v. Prudential-Bache Securities, Inc., 575 F.Supp. 270, 274-75 (D.N.J.1983).

III.

Plaintiff’s Motion for Summary Judgment

Plaintiff moves for summary judgment pursuant to Fed.R.Civ.P. 56(a) on the ground that while he has “unequivocally stated that he did not receive” the written credit disclosure statement mandated by Rule 10b-16 (Pl.Br. at 11),. defendant has produced no credible or relevant evidence to demonstrate its compliance with the Rule. I cannot agree.

In opposition to plaintiffs motion for summary judgment, Bear Stearns has submitted to the Court affidavits by two individuals familiar with the procedures employed by defendant in 1977 to ensure adequate disclosure under the securities laws. As set forth in the affidavit of Raymond Aronson, Associate Director of Bear Stearns’ Legal and Compliance Department, Bear Stearns followed certain established procedures in 1977 to ensure that any customer to whom it extended credit would be given or sent written disclosure of the following:

“the conditions under which interest charges would be made; the annual rates of interest that would be charged; the method whereby interest rates would be computed; the circumstances under which interest rates could be changed without prior notice to the customer; the method of determining the debit balance or balances on which interest would be charged and whether credit would be given for credit balances in a customer’s cash account; other charges, if any, resulting from the extension of credit which would be made and the conditions under which they would be made; and the nature of any interest or lien retained by Bear Stearns in the security or other property held as collateral and conditions under which additional collateral could be required.”

(Id. ¶ 6).

The information described above, which tracks the language of Rule 10b-16, was contained in printed forms entitled “Statement of Interest Charges Pursuant to The ‘Truth in Lending’ Rule.” Preparation of these forms was one aspect of Bear Stearns’ compliance procedure. (Id. ¶ 7). When Bear Stearns was acting in the capacity of a clearing broker; as it was in this instance, it would evaluate the adequacy of the procedures established by the broker-dealer who introduced the account to ensure that customers received “all the documentation required by applicable laws and regulations.” (Id. ¶ 10). If the evaluation was favorable, as it was in the case of MKI (Id. ¶ 10), Bear Stearns would provide the broker-dealer with its Truth in Lending Form to pass on to the customer. Alternatively, Bear Stearns would send the form directly to the customer. (Id. ¶ 8). As described by David Curtis, the Treasurer and Operations Manager of MKI, pursuant to an agreement entered into by defendant and MKI in 1975,

“[djocuments relating to customer accounts would be prepared by Bear Stearns and furnished to MKI, MKI in turn would furnish the appropriate documentation to the customers. Among the documents furnished to customers pursuant to this procedure were a customer agreement (for signature and return), a declaration of nonresidence (for signature and return), a ‘Statement of Interest Charges Pursuant to The Truth in Lending Rule (“TIL Form”)’, and a repurchase agreement (for signature and return).”

(Curtis Aff. ¶ 3).

Plaintiff argues that “the only document introduced by defendant in its answering papers [the TIL Form] ... is wholly irrelevant to plaintiff’s account and irrelevant as evidence in this case.” (Pl. Reply Br. at 1). While the TIL form would appear to be entirely relevant to the margin account first opened by plaintiff, it is apparently not pertinent to the extension of credit in plaintiff’s repurchase account. The fact that defendant has not submitted more relevant documents at this juncture, although certainly troubling, is not dispositive of the issue of defendant’s compliance. Both the Curtis and Aronson affidavits indicate that the TIL form was merely part of the documentation sent to customers in conformity with procedures established to ensure “customers would receive all the documentation required by applicable laws and regulations.” (Aronson Aff. ¶ 10; Curtis Aff. ¶ 3). Aronson’s deposition testimony further indicates that specific information regarding repurchase accounts was sent to customers who would be engaging in repurchase transactions (Aronson Dep. at 23, 29-34, 39-40).

I also do not find the testimony of David Braver, MKI’s executive vice-president, regarding his oral advice to customers, “a clear admission” that Bear Stearns had no procedure in place to provide customers engaging in repurchase transactions with the written credit disclosures required under the Rule. Notably, of course, Mr. Braver is not an employee of Bear Stearns, and, as he stated repeatedly, he does not know what documents were furnished by Bear Stearns or MKI to customers. The following excerpts from his deposition testimony, filed in a related action, Torn v. Rosen, No. 82-3130, are illustrative:

“Q. And if a customer did not ask about the interest rate, which he would be paying — would he be advised by Bear Stearns and MKI?
“A. On a monthly basis, yes, on the statement.
“Q. Would he be advised in any other written document other than the monthly statement?
“A. I don’t know.”

(Braver Dep. at 35).

“Q. Mr. Braver, you testified that you discussed the applicable margin requirements in your conversation with Mr. Rosen.
“Did you personally send him any written document setting forth the margin requirements which you had described to him?
“A. No.
“Q. To the best of your knowledge, did either MKI or Bear Stearns send Mr. Rosen such a document?
“A. I don’t know.”

(Braver Dep. at 37).

Bearing in mind this Circuit’s caution that, in the context of a motion for summary judgment, the “burden ... is on the moving party to establish that no relevant facts are in dispute,” Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 444 (2d Cir.1980); see also Heyman v. Commerce & Industry Insurance Co., 524 F.2d 1317, 1319 (2d Cir.1975), as well as this Court’s obligation to “resolve any doubts in favor of the party opposing the motion,” S.E.C. v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir.1978), I must conclude that defendant has generated uncertainty as to material, triable issues of fact: whether or not Bear Stearns had adequate Rule 10b-16 compliance procedures in place in 1977, and whether or not plaintiff was sent documentation sufficient to satisfy the Rule. While a litigant opposing summary judgment “may not rest upon mere conclusory allegations or denials,” S.E.C. v. Research Automation Corp., supra, 585 F.2d at 33, it is sufficient if he brings to the court’s attention, by way of affidavit or other material, “some affirmative indication that his version of relevant events is not fanciful.” Quinn, supra, 613 F.2d at 445. In my view, the Curtis and Aronson affidavits and their deposition testimony provide the requisite “affirmative indication” to render summary judgment inappropriate. Evidence of the routine practice of an organization, whether corroborated or not, is relevant to prove that the organization’s conduct on a particular decision conformed to its practice. Rule 406, F.R.Evid.

Further, even assuming plaintiff did not receive the written credit disclosure statement required under the Rule, a factual issue remains as to whether this omission was a result of intentional or reckless conduct on the part of Bear Stearns. This latter inquiry is mandated by the fact that, as plaintiff concedes, a “Section 10(b) plaintiff carries a heavier burden than [plaintiffs alleging other securities violations]. Most significantly, he must prove that the defendant acted with scienter, i.e., with intent to deceive, manipulate, or default.” Herman & MacLean v. Huddleston, 459 U.S. 375, 103 S.Ct. 683, 692, 74 L.Ed.2d 548 (1983). While this Circuit has consistently held that “proof of reckless conduct meets the requirement of scienter in a section 10(b) claim,” Sirota v. Solitron Devices, Inc., 673 F.2d 566 (2d Cir.), cert. denied, 459 U.S. 908, 103 S.Ct. 213, 74 L.Ed.2d 170 (1982); see also IIT v. Cornfeld, 619 F.2d 909, 923 (2d Cir.1980), negligent conduct alone is insufficient to ground a § 10(b) cause of action. Ernst & Ernst v. Hochfelder, 425 U.S. 185, 193, 96 S.Ct. 1375, 1380, 47 L.Ed.2d 668 (1976); Chemical Bank v. Arthur Andersen & Co., 552 F.Supp. 439, 455 (S.D.N.Y.1982). Given the extremely limited discovery in this action to date, the question of intent remains to be explored.

Plaintiffs attempt to circumvent the necessity for further inquiry into the issue of scienter by the conclusory assertion that “recklessness ... is to be presumed from the very failure to make the disclosure” is entirely unpersuasive. As defendant properly observes, such a suggestion is tantamount to the imposition of a strict liability standard for any deviation from Rule 10b-16’s disclosure requirements, a result that would render meaningless the well-established scienter requirement in § 10(b) actions.

Conclusion

For the reasons stated, defendant’s motion to dismiss the complaint is denied, except insofar as it seeks dismissal of plaintiff’s request for relief pursuant to Section 29(b) of the 1934 Act. Plaintiff’s motion for summary judgment is denied.

Counsel for both parties are directed to comply with the provisions of the pre-trial scheduling order accompanying this opinion.

It is SO ORDERED.


author: LEIGHTON, District Judge.

text:
    In re FINANCIAL PARTNERS CLASS ACTION LITIGATION.
    No. 82 C 5910.
    United States District Court, N.D. Illinois, E.D.
    July 27, 1984.
   Memorandum

LEIGHTON, District Judge.

Defendants K & S Commodities, Inc. (K & S), and the Chicago Mercantile Exchange (CME) have filed counterclaims against plaintiffs Elizabeth Vaccariello, Richard Winer, and certain unnamed class members. The cause is before the court on plaintiffs’ motion to dismiss those counterclaims. For the following reasons, the motion is denied.

The gravamen of the counterclaims is that these plaintiffs aided and abetted defendant Robert Serhant in violating the antifraud provisions of the Commodity Exchange Act by knowingly accepting funds stolen from other investors and allocated to their accounts as inducement to refrain from exposing Serhant’s allegedly fraudulent activities. In considering the motion to dismiss the counterclaims, the court, of course, is guided by the standard that they should be dismissed for failure to state a claim only if it appears beyond doubt that no set of facts can proved in their support giving rise to an entitlement to relief. See, e.g., Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). The first argument raised by plaintiffs is that the counterclaims must be dismissed because plaintiffs’ status as “victims” insulates them, as a matter of law, from charges that they aided and abetted Mr. Serhant. This naive characterization misses the point, however; it is obvious that to the extent the allegations in the counterclaims are true these plaintiffs ceased being victims and became victimizers. Cf. Gerbardi v. United States, 287 U.S. 112, 119, 53 S.Ct. 35, 36, 77 L.Ed. 206 (1932).

Relying on Hochfelder v. Midwest Stock Exchange, 503 F.2d 364, 374 (7th Cir.1974), cert. denied, 419 U.S. 875, 85 S.Ct. 137, 42 L.Ed.2d 114 (1974), plaintiffs also move for dismissal of the counterclaims on the ground that it is not alleged that they owed the CME and K & S a duty to investigate or disclose. However, a close reading of the standard announced by the Court of Appeals for the Seventh Circuit in Hochfelder shows that allegations of the breach of duties to investigate or disclose are not the only averments that will support a claim of aiding and abetting; such a claim also may be premised on allegations that parties, having knowledge of fraud, failed to act due to an improper motive. 503 F.2d at 374. The counterclaims of K & S and the CME easily satisfy this standard, and the court cannot say beyond doubt that they can prove no set of facts in support of their pleadings which will entitle them to relief.

Plaintiffs further argue that the counterclaims should be stricken because defendants’ allegations fail to satisfy the standard of particularity required by Rule 9(b), Fed.R.Civ.P. The court, however, finds the opposite; the counterclaims comply with Rule 9(b) by providing plaintiffs with fair notice of the allegations against them in a manner that evidences a reasonable belief on the part of defendants that there may be merit to their counterclaims. See Baselski, Paine, Webber, Etc., 514 F.Supp. 535, 540 (N.D.Ill.1981).

At the very least, plaintiffs next contend, the court should strike one of the- components of defendants’ prayers for relief — the request in which K & S and the CME seek indemnification from plaintiffs adjudged to have aided and abetted Mr. Serhant. In support of their position, they refer the court to the pronouncement of the Court of Appeals for the Seventh Circuit in Heizer Corporation v. Ross, 601 F.2d 330, 334 (1979), that a “wrongdoer should not be permitted to escape loss by shifting his entire responsibility to another party.”

This isolated statement, however, cannot be unshackled from the entire body of existing case law and accepted as a blanket declaration that a culpable party can never be entitled to indemnification from another wrongdoer. See, e.g., Maryville Academy v. Loeb Rhoades & Co., Inc., 530 F.Supp. 1061, 1070 (N.D.Ill.1981). A party adjudged liable may nevertheless be entitled to indemnification when there is a gross disparity in the quality of its misconduct and that of other parties. See Parr v. Great Lakes Express Co., 484 F.2d 767, 770 (7th Cir.1973); Madigan Inc. v. Goodman, 498 F.2d 233, 237-238 (7th Cir.1974); Maryville Academy, supra. After reviewing the pleadings, the court, cannot say beyond doubt that K & S and the CME, in the event they and counterdefendants are subsequently found liable to certain class members, can prove no set of facts establishing that the differential in the misconduct of the parties is so gross that counterdefendants should be required to indemnify them. Accordingly, the motion to strike the demand for indemnification from the counterclaims’ prayers for relief is denied.

Plaintiff’s final argument is that, in any event, the counterclaims against Richard Winer and the unnamed class members have to be dismissed because they, unlike Elizabeth Vaccariello, are absent class members and, therefore, should not be considered parties for purposes of Rule 13, Fed.R.Civ.P. The Court of Appeals for the Seventh Circuit has yet to rule on the status of absent class members. See Brennan v. Midwestern United Life Ins. Co., 450 F.2d 999, 1004 (7th Cir.1971), cert. denied, 405 U.S. 921, 92 S.Ct. 957, 30 L.Ed.2d 792 (1972). Indeed, there are a number of cases, including one decided by Judge McMillen of this district, holding that absent class members should not be accorded party status for purposes of counterclaims. See, e.g., Weit v. Continental Illinois Nat. Bank & T. Co. of Chicago, 60 F.R.D. 5, 8 (N.D.Ill.1973) (McMillen, J.); In re Sugar Industry Antitrust Litigation, 73 F.R.D. 322, 323, 349 (D.C.Pa.1976); Donson Stores Inc. v. American Bakeries Company, 58 F.R.D. 485, 488 (S.D.N.Y.1973). But there is another substantial line of cases holding that absent class members can be considered parties, at least in some circumstances. See, e.g., National Super Spuds, Inc. v. New York Mercantile Exchange, 75 F.R.D. 40 (S.D.N.Y.1977); Rodriguez v. Family Publications Service, Inc., 57 F.R.D. 189, 193 (C.C.Cal.1972); Cotchett v. Avis Rent A Car System, Inc., 56 F.R.D. 549, 552 (S.D.N.Y.1972).

After reviewing the relevant case law, the court concludes that in the present situation a formulaic recital of a rigid rule that absent class members can never be considered parties is to be eschewed. See National Super Spuds, Inc. v. New York Mercantile Exchange, supra. Rule 13, Fed.R.Civ.P., should not be applied in a restrictive, mechanistic manner that frustrates the overriding goal of the Federal Rules of Civil Procedure to promote the efficacious litigation of all the claims and issues in a case before a federal court. Cf. Maryville Academy v. Loeb Rhoades & Co., Inc., 530 F.Supp. 1061, 1070 n. 14 (N.D.Ill.1981).

Even if the court were to apply the rule argued for by plaintiffs in this case, the counterclaims would not disappear forever; defendants would simply be allowed to raise the counterclaims against absent class members at a subsequent point in the litigation. See Weit v. Continental, 60 F.R.D. at 8; National Super Spuds, 75 F.R.D. at 43. The court observes, moreover, that, as a practical matter, the issues associated with these counterclaims would never disappear from the case at all; they share a common core of allegations with affirmative defenses raised in defendants’ answers to the complaint. In essence, plaintiffs are asking the court to employ Rule 13 as an artifice for postponing the trial of the counterclaims, while blinding itself to the irrefragable argument that the progress of this and related litigation would best be served if discovery with respect to the counterclaims is allowed to proceed.

Resort to this clumsy application of Rule 13 is not warranted. Rules 16, 23, and 42, Fed.R.Civ.P., provide a practical, straight-forward, and comprehensive system whereby in complex class action litigation a court, in the interest of expedition and economy, can order separate trials with respect to various claims while, at the same time, allowing for common discovery. See National Super Spuds, 75 F.R.D. at 43-44. Accordingly, the parties are directed to proceed with discovery on the counterclaims; and the court, as contemplated by Rule 42, Fed.R.Civ.P., reserves unto itself the right to make a subsequent determination as to when and in what manner the counterclaims are to be tried. With this understanding, plaintiffs' motion to dismiss the counterclaims is also denied insofar as it seeks their dismissal on Rule 13 grounds; therefore, the motion is denied in its entirety-

So ordered.


author: GLASSER, District Judge.

text:
    Justo RICHARDS, Plaintiff, v. STATE OF NEW YORK APPELLATE DIVISION, SECOND DEPARTMENT, New York State Board of Parole: James Sullivan, Warden, Ossining Correctional Facility, Defendants.
    No. 83 Civ. 3869.
    United States District Court, E.D. New York.
    July 31, 1984.

      Justo Richards, pro se.
    Asst. Atty. Gen. Randolph Volkell, Dept, of Law, Asst. Corp. Counsel Elizabeth A. Bryson, New York City Law Dept., New York City, Office of Dist. Atty., Kings County, Brooklyn, N.Y., for defendants.
   MEMORANDUM AND ORDER

GLASSER, District Judge.

Pro se plaintiff Justo Richards brings this action pursuant to section 5 of the fourteenth amendment to the Constitution of the United States “to redress Unconstitutional abuses of governmental power.” Plaintiff alleges jurisdiction under 42 U.S.C. § 1981, and seeks injunctive relief under 28 U.S.C. §§ 2281 and 2284, as well as declaratory relief under 28 U.S.C. §§ 2201 and 2202.

Shortly after service of the instant complaint, defendants moved to dismiss the complaint. During the pendency of this motion, plaintiff filed a “Petition for Removal of Criminal Prosecution Against Person Denied Civil Rights,” which sought to remove to this Court his appeal of his conviction under indictment number 839/79 pending before the Supreme Court of the State of New York, Appellate Division, Second Department. By Memorandum and Order dated March 5, 1984, I dismissed the petition for removal based on the principles of comity set forth in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Apparently construing this order as a dismissal of the entire action, the Clerk of this Court entered a judgment on March 22, 1984, which closed this case. Plaintiff thereafter filed a Notice of Appeal with the Second Circuit Court of Appeals and sought leave to appeal in forma pauperis.

While the entry of judgment on March 22 was premature, I now find that the complaint should be dismissed in its entirety. In addition, as this action is now ripe for the entry of such judgment, plaintiff is granted leave to appeal in forma pauperis.

Background

In his complaint, plaintiff alleges that the various defendants violated his constitutional rights in connection with his state court indictment, trial, sentencing and appeal under Indictment 839/1979. In that action plaintiff was convicted of robbery in the first degree and criminal possession of property in the first degree. Plaintiff's complaint alleges that during the course of the state court proceedings, two court-appointed attorneys withdrew from his case, and the latter of the two had his associate represent plaintiff without conferring with plaintiff.

Subsequent to his sentencing, plaintiff apparently filed a motion under N.Y.Crim.Proc.L. 440.10 and six times filed petitions for writs of habeas corpus with the state courts. See Complaint ¶¶ 18-24. Plaintiff further alleges, in vague terms, that during May 1983, defendant Board of Parole sent him certain documents to sign regarding release consideration, and that he refused to do so. At a subsequent parole hearing, plaintiff “got hit by the Board with a year[.]” Complaint ¶ 25.

Plaintiff complains that (1) he has not been furnished with counsel on appeal; (2) the state “corrective process” is ineffective; (3) the delay in state court adjudication of plaintiffs post-conviction requests for relief is inordinate; and (4) obstacles in the state judicial process deny him due process of law. Plaintiff requests that this Court convene a three-judge court to adjudicate this case pursuant to 28 U.S.C. § 2281 and maintain jurisdiction over this action until defendants “establish a hearing procedure in conformity with the requirements of the Fourteenth Amendment____” Plaintiff also requests that this Court declare the defendants in violation of the Equal Protection and Due Process clauses and that plaintiffs imprisonment is unconstitutional.

Discussion

The bases for dismissal of this action are clear. Defendants correctly assert that this Court lacks subject matter jurisdiction over the instant controversy because under the Eleventh Amendment to the United States Constitution, a state is absolutely immune from any action brought against it in federal court by a citizen of its own state, even if only declaratory or injunctive relief is sought. Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890); Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978). In addition, agencies of the state and state officials sued in their official capacities are similarly immune under the Eleventh Amendment when the state is the real party in interest. Cory v. White, 457 U.S. 85, 102 S.Ct. 2325, 72 L.Ed.2d 694 (1982); Alabama v. Pugh, supra.

Although I need not set forth additional reasons for dismissal of the instant complaint, I find two points worth addressing. First, plaintiff sets forth no authority for convening a three-judge court. One of the statutes he cites, 28 U.S.C. § 2281, has been repealed. Section 2284 of Title 28, which does discuss when such a court should be convened, directs that the same shall be done in apportionment cases or when otherwise required by Act of Congress. This provision is clearly inapplicable to the instant case.

Second, four aspects of plaintiffs papers reveal that his intent is to challénge the fact and not the nature of his incarceration, thereby suggesting that a petition for a writ of habeas corpus is the appropriate relief which plaintiff should seek after complying with 28 U.S.C. § 2254. See Matos v. Quealy, 524 F.Supp. 15, 17 (S.D.N.Y.1981). The facts supporting this conclusion are: (1) defendant Sullivan is named in his official capacity and no specific claims are made against him; (2) plaintiff complains that he was not represented properly by counsel at the state trial level and has not been represented on appeal; (3) plaintiff seeks a declaration that his incarceration is unconstitutional; and (4) as discussed supra, plaintiff recently sought to “remove” his state criminal appeal to this Court.

Conclusion

For the reasons discussed supra at 690, the Clerk of this Court is directed to vacate the judgment entered March 22, 1984 pursuant to Fed.R.Civ.P. 60(a). However, the complaint is now dismissed without prejudice. As it is now appropriate for judgment to be entered and for plaintiffs request to appeal in forma pauperis to be entertained, such request is now granted.

SO ORDERED.

      . In addition, by Memorandum and Order dated March 6, 1984, I found that the dismissal of plaintiff's petition for removal mooted both plaintiff's motion for injunctive relief and motion to amend the petition for removal.

      . Three petitions were allegedly filed with the Supreme Court, Kings County, two with the Appellate Division, Second Department, and one with the Court of Appeals.


author: GLASSER, District Judge:

text:
    Justo RICHARDS, Plaintiff, v. STATE OF NEW YORK, Court of Appeals, State of New York; District Attorney Kings County, James Sullivan, Superintendent, Ossining Correctional Facility, et al., Defendants.
    No. 83 Civ. 5166.
    United States District Court, E.D. New York.
    July 31, 1984.
    Justo Richards, pro se.
    Randolph Volkell, Asst. Atty. Gen., Dept, of Law, Elizabeth A. Bryson, Asst. Corp. Counsel, New York City Law Dept., New . York City, for defendants.
   MEMORANDUM AND ORDER

GLASSER, District Judge:

Pro se plaintiff Justo Richards brings this action pursuant to article III, section 2 of the United States Constitution and section 5 of the Fourteenth Amendment alleging violation of his constitutional rights by defendants. The complaint seeks declaratory and injunctive relief.

Following the filing of defendant Holtzman’s motion to dismiss the complaint, plaintiff filed a “Petition for Removal of Criminal Prosecution Against Person Denied Civil Rights” seeking removal to the district court of state court proceedings involving indictment number 5576-81. Plaintiff also filed a motion for preliminary injunction enjoining defendants from “continuing to restrict, abrige [sic], transgress, deny and discriminate against plaintiff’s First [Amendment] free exercise and continued willful deprivation of liberty guaranteed by the due process [clause] ... [and 42 U.S.C. § 1981].” Thereafter, the remaining defendants also moved to dismiss the complaint and plaintiff moved for summary judgment. For the reasons set forth below, the complaint is dismissed, and plaintiff’s various requests for relief are dismissed as moot.

Background

This complaint challenges actions connected with plaintiff’s state court conviction under the above mentioned indictment, No. 5576-81. On December 8, 1982, defendant was convicted in the Supreme Court, Kings County, of manslaughter in the first degree, second degree murder and criminal possession of a weapon in the second degree. He was sentenced on January 4, 1983.

According to the complaint, plaintiff subsequently filed a petition pursuant to Article 70 of New York Civil Practice Law and Rules with Special Term of the trial court. Plaintiff alleges that in opposing this application, defendant District Attorney

denied plaintiff fairness, due process and equal protection under the laws of New York State, in swearing, under the penalties of perjury that plaintiff was convicted of murder 2° and criminal possession of a weapon 2°. Not submitting [sic] for a full and fair litigation in the Habeas court, the conviction of manslaughter 1°[.]

Complaint ¶ 11. Plaintiff alleges that the application to Special Term was denied, and defendant District Attorney wrongfully engaged in similar conduct when plaintiff subsequently appealed the denial of this petition to the Supreme Court, Appellate Division, Second Department and then to the New York Court of Appeals.

Plaintiff also alleges that (1) the “arraignment court” failed to rule upon plaintiffs motion to inspect the grand jury minutes; (2) the Court of Appeals improperly dismissed his appeal for failure to raise substantial constitutional issues when the same were allegedly raised by plaintiff, and therefore, the Court of Appeals’ dismissal violates the Fourteenth Amendment; and (3) the alleged application of Article 125 of the New York Penal Law in plaintiff’s state proceedings was unconstitutional. As relief, plaintiff requests that this Court convene a three-judge court to hear his case, declare defendants’ actions unconstitutional and declare plaintiff’s imprisonment unconstitutional as well.

Discussion

This action must be dismissed for reasons which have already been set forth in the actions captioned 83 Civ. 1388 and 83 Civ. 3869. See 597 F.Supp. 689. First, a state, its agencies and state officials sued in their official capacities are all immune from suit in federal court brought by a citizen of that state under the Eleventh Amendment to the United States Constitution. Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890); Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978); Cory v. White, 457 U.S. 85, 102 S.Ct. 2325, 72 L.Ed.2d 694 (1982). Defendants Court of Appeals, State of New York, and Sullivan (“the State defendants”) are immune from suit on this basis.

The action against defendant Holtzman, the District Attorney of Kings County, should also be dismissed because all the alleged wrongful acts of this defendant, see supra at 692-93, go clearly to the fact of plaintiff’s state conviction, and are therefore challengeable only pursuant to the requirements of 28 U.S.C. § 2254. See Matos v. Quealy, 524 F.Supp. 15, 17 (S.D.N.Y.1981); Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827, 1841, 36 L.Ed.2d 439 (1973).

As revealed by plaintiff’s “Petition for Removal” of proceedings involving a state court indictment to the district court, state court adjudication of plaintiff’s conviction is still pending in the Appellate Division, Second Department. Thus, this action, including the petition for removal, should also be dismissed based on the principles of comity set forth in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and its progeny.

Conclusion

For the reasons set forth above, the complaint in this action is dismissed without prejudice to any claim plaintiff might later file pursuant to 28 U.S.C. § 2254. Also, although the state defendants have moved pursuant to Fed.R.Civ.P. 54(d) for costs to be taxed against the indigent plaintiff herein, they have not set forth authority which would warrant the imposition of costs in the instant case. Therefore, that request is denied. The complaint having been dismissed, plaintiffs various applications for removal, injunctive relief, summary judgment and discovery are dismissed as moot.

SO ORDERED.

      . I find it necessary to note that conduct surrounding .the state court proceedings in this indictment is also challenged in another civil action that was pending before me, 83 Civ. 1388. In the interest of judicial economy, it is recommended that in the future, plaintiff should take notice of Fed.R.Civ.P. 8(a), which permits claims for different or alternative types of relief to be set forth in the same complaint. Thus, although the complaint in 83 Civ. 1388 sought monetary damages and the instant complaint seeks declaratory and injunctive relief, the claims could have been brought in one pleading. This is so although the defendants in both actions are not identical. In fact, although not named as defendants in this action, several of the defendants in 83 Civ. 1388 are mentioned in "Petition for Removal” discussed in the text of this opinion.

      . Article 70 describes the procedure to be utilized in connection with a petition for a writ of habeas corpus in state court. N.Y.C.P.L.R. §§ 7001-7012.

      . Article 125 defines homicide and related offenses.