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E. F. HUTTON & CO. v. BURKHOLDER

May 19, 1976

E. F. HUTTON & CO., INC., Plaintiff,
v.
BRUCE B. BURKHOLDER, Defendant



The opinion of the court was delivered by: GASCH

[EDITOR'S NOTE: The following court-provided text does not appear at this cite in 413 F. Supp.]

 ORDER ENTERING JUDGMENT FOR PLAINTIFF

 In accordance with the Findings of Fact and Conclusions of Law filed this date in this action, it is by the Court this 19th day of May, 1976,

 ORDERED that judgment be and hereby is entered for plaintiff E. F. Hutton & Co., Inc., on its claim against defendant Bruce B. Burkholder in the amount of $28,681 with interest from the date of this judgment at the rate of six (6) percent per year, each party to bear its own costs; and it is further

 ORDERED that judgment be and hereby is entered for plaintiff and against defendant on the defendant's counterclaim.

 Honorable Oliver Gasch, Judge.

 INTRODUCTION

 In this action plaintiff E. F. Hutton and Co. ("Hutton") seeks a judgment against a former customer, Bruce B. Burkholder ("Burkholder"), for $59,416.00 allegedly due and owing on a commodity futures brokerage account. The plaintiff liquidated defendant's account on June 28, 1974. Defendant denies any liability to plaintiff, claiming that plaintiff wrongfully liquidated his account in reliance on erroneous records and computations as to the status of the account. Specifically defendant disclaims five transactions that plaintiff entered in Burkholder's account prior to liquidation, as well as the propriety of the liquidating transactions themselves. Defendant has counterclaimed against plaintiff for $6,494.00, the amount of the credit allegedly due defendant if the Court adopts Burkholder's version of the disputed transactions.

 Burkholder also seeks to avoid liability by advancing several theories of law. First, Burkholder contends that plaintiff had no right to liquidate the account because on the liquidation date Hutton had not yet corrected two errors that Hutton knew it had made in Burkholder's account. Second, Burkholder contends that the laws and regulations governing securities transactions are applicable in this case, and that the securities laws preclude plaintiff from recovering in this action because plaintiff did not liquidate the account within five days after defendant failed to meet margin calls. Defendant also seeks damages for losses he sustained when plaintiff liquidated his account more than five days after plaintiff failed to meet margin calls. Finally defendant requests punitive damages based on plaintiff's alleged maliciousness in filing this suit with knowledge of defendant's non-liability.

 This case came on for trial before the Court, sitting without a jury. The Court has reviewed the evidence, heard the witnesses and determined their credibility, and herewith makes the following findings of fact and conclusions of law pursuant to Rule 52 of the Federal Rules of Civil Procedure.

 FINDINGS OF FACT

 1. Plaintiff Hutton is a securities and commodity futures brokerage firm incorporated in the State of Delaware and having its principal place of business in New York, with an office in the District of Columbia. Defendant Burkholder is a resident and citizen of Pennsylvania, although at the times involved in this case he worked for the Federal Government in the Washington, D.C., area and maintained a residence in McLean, Virginia.

 2. On March 2, 1974, Burkholder opened a commodity futures trading account with the Washington, D.C. office of the plaintiff company by signing a Customer's Agreement with plaintiff. See Plaintiff's Exhibit 10. That Customer Agreement contained the following language:

 
Para. 4 -- Whenever you [Hutton] deem it necessary for your protection, you are authorized, in your sole discretion, to sell, assign and deliver all or any part of the securities, commodities, or contracts in commodities or securities, or other property, pledged hereunder, upon any exchange or market or at any public or private sale at your option, and/or make any necessary purchase to cover short sales or open commodity contract positions, all without demand for margin, advertisement, or notice of purchase or sale to the undersigned, or to his personal representatives, (which are hereby expressly waived), and no specific demand or notice shall invalidate this waiver. After deducting all costs and expenses of purchases and/or sales and deliveries, including commissions, transfer and stamp taxes, you ...

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