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EQUITY GROUP v. PAINEWEBBER INC.

December 13, 1993

THE EQUITY GROUP, LTD., Plaintiff,
v.
PAINEWEBBER INCORPORATED, Defendant.



The opinion of the court was delivered by: STANLEY S. HARRIS

 Before the Court is defendant's motion for summary judgment. Also before the Court is defendant's motion to vacate this Court's Order of October 6, 1993, and for reconsideration of plaintiff's motion for leave to amend the complaint. Upon consideration of the entire record, the Court grants defendant's motions.

 Background

 Defendant's Private Investments Department originates, develops, and markets private investments for sale within defendant's retail sales system. Between 1989 and 1991, plaintiff provided sales and marketing assistance ("wholesaling" services) for several of defendant's offerings.

 The present action concerns a dispute with respect to three of defendant's private offerings: United Systems Waste, Inc. ("Jacobs Waste offering"), Painewebber Preferred Yield Fund II, L.P., and Standard Federal Notes. *fn1" Plaintiff contends that with respect to these offerings, defendant terminated its alleged oral contract for wholesaling services with plaintiff without notice or cause. Plaintiff further asserts that defendant simultaneously "misappropriated plaintiff's business, telemarketing system, sales and marketing data analysis, marketing methods, systems, and client information, and all of Equity Group's sales professionals," in effect, causing plaintiff to go out of business. See Compl. at P 1; Am. Compl. at P 1. Plaintiff's complaint asserts actions for conversion, breach of contract, and tortious interference with contract. Plaintiff's amended complaint adds three additional causes of action: interference with business relations, promissory estoppel, and agency.

 Motion To Vacate and for Reconsideration

 On September 10, 1993, plaintiff submitted a motion for leave to file an amended complaint out of time. In support of its motion, plaintiff asserted that through discovery, it uncovered additional information about defendant's decisions with respect to plaintiff's termination. It claimed that this new information, in conjunction with other newly-discovered facts, which have not been delineated, gave rise to new claims for interference with business relations, promissory estoppel, and agency.

 On September 24, 1993, the Court granted defendant's unopposed motion for an extension of time until October 8, 1993, to oppose plaintiff's motion for leave to file an amended complaint. On October 6, 1993, this Court routinely but mistakenly granted plaintiff's motion for leave to file as unopposed. Accordingly, the Court grants defendant's motion to vacate and reconsiders the motion for leave to file on the merits.

 Defendant filed its answer to plaintiff's complaint on February 25, 1992. Therefore, because defendant has not consented to plaintiff's motion, plaintiff may amend its complaint only by leave of court and "leave shall be freely given when justice so requires." See Fed. R. Civ. P. 15(a). The Court may deny a motion for leave to amend if the amendment would result in delay or undue prejudice to the opposing party, or if a party had a sufficient opportunity to state the amended claims and failed to do so. See, e.g., Anderson v. USAir, Inc., 260 U.S. App. D.C. 183, 818 F.2d 49, 57 (D.C. Cir. 1987); Williamsburg Wax Museum, Inc. v. Historic Figures, Inc., 258 U.S. App. D.C. 124, 810 F.2d 243, 247 (D.C. Cir. 1987). The Court finds that here, plaintiff had sufficient opportunity to state the amended claims, and unduly delayed in bringing them. Although plaintiff states that it learned additional facts in support of the new claims only after the close of discovery, it waited several additional months until after the filing of defendant's dispositive motion to raise them. Moreover, although plaintiff alleges that it attempts to bring these new claims due to facts learned through discovery, the Court fails to see either how the additional information differs significantly from the facts alleged in support of the original complaint, or how the added claims depend upon the supposed new information. The Court finds that the amended complaint is merely a tactic designed to evade summary judgment, and that to allow amendment at this time would protract the litigation and thus prejudice defendant. Accordingly, the Court denies plaintiff's motion for leave to amend.

 Motion for Summary Judgment

 A court may grant summary judgment when the pleadings and supplemental materials present no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). In considering a summary judgment motion, all evidence and the inferences to be drawn from it must be considered in a light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986). Summary judgment cannot be granted "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). The Court finds that defendant is entitled to summary judgment on each of the counts of the complaint.

 Conversion

 Count I of plaintiff's complaint seeks recovery for defendant's conversion of plaintiff's "business, marketing system, telemarketing 800 telephone number, data base of prospective purchasers of securities and all of [plaintiff's] sales and marketing professionals . . . ." Compl. at P 30. Defendant contends that this count must be dismissed because plaintiff has failed to state a claim of conversion.

 The elements of conversion are "(1) an unlawful exercise, (2) of ownership, dominion, or control, (3) of the personal property of another, (4) in denial or repudiation of that person's rights thereto." O'Callaghan v. District of Columbia, 741 F. Supp. 273, 279 (D.D.C. 1990) (citing Duggan v. Keto, 554 A.2d 1126, 1137 (D.C. ...


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