Kassner v. United States Pictures, Inc. , 82 F. Supp. 633 ( 1948 )

RYAN, District Judge.

Similar motions to dismiss the complaint in four different 'stockholders’ derivative actions are made by defendants, who urge that this court is without jurisdiction because of 'lack of diversity of citizenship — • •the ground upon which jurisdiction is predicated.

The defendants in all four actions are the same except for the action brought by plaintiff Birn in which Robert W. Perkins is not named defendant. The claims asserted are identical — •

Plaintiffs-stockholders assert on behalf of Warner Bros. Pictures, Inc., the allegedly wronged corporation, claims against certain officers and directors of that corporation and against other corporations alleging that by their wrongful acts, they and others benefited to the detriment of Warner Bros. Pictures, Inc.

Since the questions raised by these motions are the same ¡they are simultaneously considered.

Plaintiffs are citizens of New York; defendants Robert W. Perkins and Joseph Bernhard are conceded by plaintiffs to be citizens o<f New York, also. The complaints as .to these defendants must be dismissed.

This having been accomplished, the .remaining defendants argue that' the ¡complaints as ¡to all of them must be dismissed, because Perkins and Bernhard are indispensable parties to the suits in-which they were originally named. Federal Rules Civil Procedure, -rule 19, 28 U.S.C.A.

The ¡dismissal of the ¡complaint as to one or more of the named defendants, when it will 'cure a defect claimed in jurisdiction does not of necessity require the dismissal of the action as to all defendants. Galdi v. Jones, 2 Cir., 1944, 141 F.2d 984.

The liability of all the defendants on the claims pleaded is joint and several. Defendants Perkins and Bernhard are not necessary or indispensable parties; they are named along with the others as joint tort-feasors. Koster v. (American) Lumbermens Mutual Casualty Co., 2 Cir., 1946, 153 F.2d 888; Fletcher, Cyclopedia Corporations Vol. 3, Secs. 1002, 1314; Moore, Federal Practice, Vol. 2, Sec. 19.03, p. 2146.

. Although Bernhard it is alleged is a director of Warner Bros. Pictures, Inc., it appears that he is not and was not a director of the corporation at the time of ■the alleged fraudulent transactions. It is not very material whether he was a director at that time; sufficient it is that he is alleged to have knowingly profited 'by conspiring with the directors and .by working in agreement with them. The actions essentially are to compel an accounting and to impress a trust upon the 'fruits of the wrongdoing. All alleged conspirators may be joined in one action, i'f possible, but when this cannot be done it may proceed only against those over whom jurisdiction may be obtained.

The complaints are dismissed without prejudice as to defendants Perkins and Bernhard; in all other respects the motions are denied.

Orders may be settled on notice.