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DAY v. SIDLEY & AUSTIN

May 29, 1975

J. Edward DAY, Plaintiff,
v.
SIDLEY & AUSTIN et al., Defendants


Parker, District Judge.


The opinion of the court was delivered by: PARKER

PARKER, District Judge.

This case involves a dispute between a former senior partner of Sidley & Austin (S&A), a Chicago law firm, and some of his fellow partners. The controversy centers around the merger between that firm and another Chicago firm, Liebman, Williams, Bennett, Baird and Minow (Liebman firm), and the events subsequent to the merger which ultimately led to plaintiff's resignation. Plaintiff seeks damages claiming a substantial loss of income, damage to his professional reputation and personal embarrassment which resulted from his forced resignation.

 The matter is now before the Court on defendants' motion for summary judgment. After consideration of the pre- and post-hearing memoranda of counsel, answers to interrogatories, affidavits, and oral arguments, this Court concludes that defendants' motion for summary judgment should be granted.

 On July 1, 1974, plaintiff J. Edward Day filed a complaint in the Superior Court for the District of Columbia against Sidley & Austin itself, and 12 named partners (members of the firm's executive committee) alleging breach of fiduciary duty, breach of contract, fraud and misrepresentation, conspiracy, wrongful dissolution or ouster of co-partner and breach of partnership agreement. Thereafter, the individual defendants who had then been served filed a petition for removal in the United States District Court for the District of Columbia. *fn1" Federal jurisdiction is conferred by reason of diversity of citizenship and the amount in controversy exceeding $10,000. 28 U.S.C. § 1332. On October 8, 1974, this Court denied plaintiff's request for a remand to the Superior Court and quashed service on those individual defendants who had been served with Superior Court process after removal had become effective. Service against the partnership itself was quashed. *fn2" As of this date, plaintiff has served eleven of the individual defendants.

 As an initial response to the motion for summary judgment plaintiff asserts that the motion should be denied because it is premature since "extensive discovery" is contemplated including depositions to supplement the interrogatories that have already been answered. In Washington v. Cameron, 133 U.S.App.D.C. 391, 411 F.2d 705 (1969), the district court was reversed for precipitously granting defendant's summary judgment motion on the basis of an ex parte administrative determination of fact, before plaintiff had had a chance to conduct any discovery. The caution and restraint dictated by Cameron was clearly warranted by its facts, the record and the state of the pleadings. Such an approach is not mandated by the record in this proceeding. Here, the plaintiff has conducted discovery by way of interrogatories, has filed several personal affidavits, and defendants have submitted key documents such as the Partnership Agreements of Sidley & Austin and the Memorandum of Understanding governing the proposed merger of S&A and the Liebman firm. The partnership agreements and other essential undisputed facts and relevant documents present questions of law and the Court sees no reason why the motion for summary judgment is untimely. See E. P. Hinkel & Co. v. Manhattan Co., 165 U.S. App. D.C. 140, 506 F.2d 201 (D.C.Cir. 1974).

 The Factual Background

 The basic and material facts in this controversy may be briefly detailed.

 Mr. Day was first associated with Sidley & Austin in 1938. His legal career was interrupted by World War II service in the Navy and by his tenure with both the Illinois state government and as Postmaster General of the United States. Upon leaving the federal government, he was instrumental in establishing a Washington office for the firm in 1963. As a senior underwriting partner, he was entitled to a certain percentage of the firm's profits, and was also privileged to vote on certain matters which were specified in the partnership agreement. He was never a member of the executive committee, however, which managed the firm's day-to-day business. He remained an underwriting partner with Sidley & Austin from 1963 until his resignation in December 1972.

 The final Memorandum of Understanding dated September 29, 1972 and the final amended Partnership Agreement, dated October 16, 1972 were executed by all S&A partners, including plaintiff. The Memorandum incorporated a minor change requested by plaintiff.

 At a meeting of the executive committee of the combined firm on October 16, 1972, it was decided that the Washington offices and the Washington office committees of the two predecessor firms would be consolidated. The former chairmen of the Washington office committees of the two firms were appointed co-chairmen of the new Washington Office Committee. *fn3"

 In late October of 1972, the new Washington Office Committee recommended to the Management Committee that a combined Washington Office be set up at 1730 Pennsylvania Avenue, thus eliminating the old S&A Washington office in the Cafritz Building. A decision was then made to move to the new location despite plaintiff's objections.

 Mr. Day resigned from Sidley & Austin effective December 31, 1972 claiming that the changes which occurred after the merger in the Washington Office -- the appointment of co-chairmen and the relocation of the office -- made continued service with the firm intolerable for him.

 Plaintiff has made certain allegations which are not conceded by defendants. As to these matters, plaintiff's allegations have been given the benefit of all reasonable doubts and inferences. ...


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