Opposition Brief — Edwards v. First American Title Insurance
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No. 93-2099
In The os
Supreme Court of the Unitety States
+
October Term, 1994
A.G. EDWARDS, JR..,
Petitioner
VS.
FIRST AMERICAN TITLE INSURANCE COMPANY and
JOHN HANCOCK MUTUAL LIFE INSURANCE
COMPANY, e7 al.,
Respondents
On Petition for a Writ of Certiorari to the United States Court
of Appeals for the First Circuit
BRIEF IN OPPOSITION FOR RESPONDENT
PRINCE HAWKINS, INDIVIDUALLY AND ON
BEHALF OF THE LAW FIRM OF HAWKINS,
RHODES & SHARP
MARTHA V. GORDON
Counsel of Record
NELSON, KINDER, MOSSEAU
& GORDON, P.C.
Attorneys for Respondent
Prince Hawkins, Individually and on
Behalf of the Law Firm of
Hawkins, Rhodes & Sharp
99 Middle Street
P.O. Box 1510
Manchester, New Hampshire 03105
(603) 647-1800
§453
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BEST AVAILABLE COPY
QUESTION PRESENTED
Whether the First Circuit Court of Appeals properly upheld the
dismissal by the federal district court for the District of New
Hampshire of all claims against Prince A. Hawkins, a Nevada
attorney, and the Nevada law firm of Hawkins, Rhodes & Sharp,
where the statute of limitations applicable to each claim had
expired prior to the commencement of the action?
ii
TABLE OF CONTENTS
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Contents
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APPENDIX
Appendix A —Opinion of the United States Court of
Appeals for the First Circuit Dated March 29, 1994 ...
Appendix B -— Judgment and Order of the United States
District Court for the District of New Hampshire Dated
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Appendix C — Order of the United States District Court for
the District of New Hampshire Filed March 23, 1993
Appendix D — Plaintiff's Complaint ................
Appendix E — Plaintiff’s First Amended Complaint ....
Appendix F — Motion to Dismiss or Transfer of Prince A.
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Appendix G — Motion to Dismiss or Transfer Venue of
Defendant John Hancock Mutual Life Insurance
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Contents
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Appendix H — Motion to Dismiss of Defendants Harold
Pearson, ITI, William Gordon, John G. McElwee, Steven
Brown, Thomas L. McKiernan andArthur Duncan ... 60a
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1
STATEMENT OF THE CASE
On August 12, 1991, petitioner A.G. Edwards, Jr. (“Edwards”)
filed a complaint against First American Title Company of Nevada
in the federal district court for the District of New Hampshire,
complaining of a foreclosure which occurred in Nevada on August
15, 1985. Respondents’ Joint Appendix (“App.”) at 32a.’ On
October 2, 1992, he filed his First Amended Complaint, changing
the defendant from First American Title Company of Nevada to
First American Title Company. App. at 37a. The First Amended
Complaint added additional defendants, John Hancock Mutual
Life Insurance Company (“John Hancock”), various officers and
employees of John Hancock, and respondents Prince A. Hawkins
and Hawkins, Rhodes and Sharp (collectively referred to as
“Hawkins”), alleged by Edwards to be Nevada counsel for John
Hancock, and added additional claims for relief. App. 00a. The
First Amended Complaint was served upon Hawkins on December
10, 1992 in Reno, Nevada. /d.
On December 28, 1992, Hawkins moved for dismissal of the
action pursuant to F. R. Civ. P. 12(b)(2) for lack of personal
jurisdiction; for dismissal of the action pursuant to F. R. Civ. P.
12(b)(6) for failure to state a claim as Edwards’ claims against
Hawkins were barred by the statute of limitations; for dismissal of
the action on the ground of improper venue under 28 U.S.C.
§ 1391(a) and (b) and 28 U.S.C. § 1406(a); or, in the alternative, to
transfer the action to Nevada pursuant to 28 U.S.C. § 1404(a).
App. 54a.
On March 23, 1993, the district court (DiClerico, C.J.) granted
Hawkins’ motion to dismiss on the ground that the district court
lacked personal jurisdiction over all of the non-corporate
1. Edwards did not submit a separate appendix with his petition;
accordingly, respondents have submitted a joint appendix.
2
defendants, including Hawkins, and dismissed the action against
John Hancock on the basis that Edwards had previously filed an
action in the federal district of Massachusetts against Hancock.
App. 19a. The action against First American was transferred to
Nevada. /d.
In a per curiam opinion, the First Circuit Court of Appeals
upheld the dismissal of the individual defendants on the ground of
personal jurisdiction, upheld the dismissal of John Hancock on the
ground of comity, and affirmed the transfer of the action against
First American Title Insurance Co. to Nevada pursuant to 28
U.S.C. § 1404(a). App. la. The First Circuit rejected Edwards’
contention that the federal court erred in not transferring the claims
against the individual defendants to a forum which would have
personal jurisdiction on the ground that statutes of limitations
applicable to Edwards’ claims had expired prior to his filing of
these claims.
SUMMARY OF ARGUMENT
The sole argument advanced by Edwards in his Petition is that
the First Circuit erred in determining that each of his claims against
the individual defendants accrued on August 15, 1985, and
therefore, the action was barred against the individual defendants,
on any of Edwards’ theories, on August 15, 1991, nearly a year
prior to the filing of Edwards’ Amended Complaint against the
individual defendants, Edwards’ argument is predicated on his
claim that a subsequent loss of income in 1990 purportedly arising
from the original foreclosure in 1985 “advanced” the accrual date.
-
3
REASONS FOR DENYING THE WRIT
L
A SUBSEQUENT INJURY ALLEGED TO HAVE
ARISEN FROM THE SAME CAUSE DOES NOT TOLL THE
ACCRUAL OF THE CAUSE OF ACTION.
In his original Amended Complaint, Edwards claimed that he
had been injured as a result of an allegedly defective foreclosure of
cattle ranches owned by the Saval Ranching Co. (“Saval”), which
secured loans from John Hancock to Saval, which occurred on
August 15, 1985. Based upon these allegations, the federal district
court correctly declined Edwards’ invitation to transfer the action
against the individual defendants to a forum which would arguably
have personal jurisdiction over them pursuant to 28 U.S.C. §
1404(a) or under 28 U.S.C. § 1631 on the ground that all of his
claims against the individual defendants were time-barred,
whether New Hampshire, Massachusetts or Nevada law applied.
Although Edwards originally acknowledged that each of his
claims against the individual defendants accrued on August 15,
1985, he belatedly asserted in a reply brief filed in the First Circuit
that when the United States Forest Service cancelled a grazing
permit for Saval’s ranches, he was further injured. This subsequent
economic loss, which Edwards asserted was “directly derived”
from the allegedly defective foreclosure sale, is, according to
Edwards, grounds for delaying the accrual date of his civil claims
until mid-1990.
The First Circuit Court of Appeals correctly determined that
regardless of whether Massachusetts, Nevada or New Hampshire
law is applied, Edwards’ claims accrued no later than August 15,
1985:
cattle
4
This argument has no merit because there has
been, and can be, no dispute that Edwards was
on notice of possible substantial injury as of the
August 1985 foreclosure sale, when the under
inclusive property description may have
caused the Saval ranches to be sold for a lower
price. A cause of action accrues when a
plaintiff has “knowledge, actual or attributed,
of both harm to it and the likely cause of such
harm, . . . sufficient to stimulate further inquiry
which was likely to alert it to a cause of action
against a defendant.” Hanson Housing
Authority v. Dryvit System, Inc., 29 Mass. App.
Ct. 440, 446, 560 N.E. 2d 1290, 1294 (1990),
rev. den., 409 Mass. 1101, 565 N.E. 2d 792
(1991). The fact that a plaintiff subsequently
suffers some additional harm that may be
traced to the same likely cause does not delay
accrual of the cause of action. /d. (“It is not
required that the extent of injury be known
before accrual of a cause of action”); Rowe v.
John Deere, 130 N.H. 18, 21-23, 533 A.2d 375,
376-78 (1987). See Sorenson v. Pavlikowski,
94 Nev. 440, 443-44, 581 P.2d 851, 853-54
(1978).
In his Petition for Certiorari, Edwards cites no law to the
contrary. There is no legal or factual basis for further review of the
First Circuit Court of Appeals’ decision.
5
CONCLUSION
For all the foregoing reasons, Prince A. Hawkins and
Hawkins, Rhodes & Sharp respectfully request this Honorable
Court to deny the Petition for Certiorari.
Dated: July 26, 1994
Respectfully submitted,
MARTHA V. GORDON
Counsel of Record
NELSON, KINDER, MOSSEAU &
GORDON, P.C.
Attorneys for Respondent
Prince Hawkins, Individually
and on Behalf of the Law Firm of
Hawkins, Rhodes & Sharp
99 Middle Street
P.O. Box 1510
Manchester, NH 03105
(603) 647-1800
la
APPENDIX A — OPINION OF THE UNITED STATES
COURT OF APPEALS FOR THE FIRST CIRCUIT DATED
MARCH 29, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1873
A. GREER EDWARDS, JR...
Plaintiff, Appellant,
v.
FIRST AMERICAN TITLE INSURANCE COMPANY OF
NEVADA, ETAL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A.DiClerico, U.S. District Judge]
Before
Breyer, Chief Judge,
Selya and Cyr, Circuit Judges.
2a
Appendix A
A.G. Edwards, Jr. on the brief pro se. Richard B. Couser and Orr
and Reno, P.A. on brief for appellees First American Title
Insurance Company, John Hancock Mutual Life Insurance
Company, Harold Pearson III, William Gordon, John G. McElwee,
Stephen Brown, Thomas L. McKiernan and Arthur Duncan.
Martha V. Gordon and Nelson, Kinder, Mosseau & Gordon,
PC on brief for appellees Prince A. Hawkins and Hawkins, Rhodes
& Sharp.
March 29, 1994
Per Curiam. Plaintiff-appellant A.G. Edwards, Jr., has
brought a pro se appeal from the district court’s judg™ent
dismissing Edwards’ claims against nine defendants: the john
Hancock Mutual Life Insurance Co. (“John Hancock”), six John
Hancock employees, Nevada attorney Prince Hawkins, and the
Nevada law firm of Hawkins, Rhodes & Sharp. Edwards also
appeals from the district court’s ruling transferring Edwards’
claims against the remaining defendant, the First American Title
Insurance Co. (“First American”), to the District of Nevada on
grounds of convenience under 28 U.S.C. § 1404(a).
In the 1970’s the Saval Ranching Co. (“Saval”), of which
Edwards was part owner and later sole owner, borrowed money
from John Hancock. As security, Saval gave John Hancock deeds
of trust to two commercial cattle ranches in Nevada owned by
Saval. In 1985, at a time when Edwards resided in Massachusetts,
John Hancock foreclosed on Saval’s ranches. John Hancock
foreclosed through First American, which was John Hancock’s
trustee on the deeds of trust to Saval’s ranches. Hawkins and his
law firm represented John Hancock in the foreclosure proceedings.
3a
Appendix A
The deeds of trust to Saval’s ranches expressly included the
mineral, oil, and gas rights pertaining to those ranches. In
preparing for the foreclosure sale, however, First American
excluded these mineral, oil and gas rights from the published
description of the properties to be sold. Although he could not bid
on the properties, Edwards attended the August 15, 1985 Nevada
foreclosure sale. At that sale the United States government
purchased the properties and acquired the release of John
Hancock’s interest in the properties. Edwards subsequently moved
from Massachusetts to New Hampshire.
The U.S. then filed suit against Edwards in the federal district
court in Nevada to recover a $600,000 deficiency. The Nevada
court ruled on January 5, 1988 that First American had violated
applicable Nevada foreclosure statutes by excepting the mineral,
oil, and gas rights from the description of the properties, and
invalidated the foreclosure. In 1989, Edwards and the U.S. entered
into a settlement agreement by which the U.S. transferred all its
interest in the properties to Edwards in return for a sum of money.
On January 25,1991, Edwards filed suit in the District Court
for the District of Massachusetts against John Hancock. The suit,
which included claims for negligence and for breach of contract,
sought damages for the underinclusive property description in the
notices of the foreclosure sale of the Saval ranches. The district
court dismissed Edwards’ negligence claim as time-barred, and
dismissed his contract claim on the merits. On September 4, 1992,
this court affirmed the dismissal of the negligence claim, vacated
the dismissal of the contract claim, and remanded for further
proceedings. Edwards v. John Hancock Mutual Life Ins. Co., 973
F.2d 1027 (1st Cir. 1992).
Edwards filed the instant pro se lawsuit on August 12, 1991 in
ae.
Appendix A
the District Court for the District of New Hampshire. His original
complaint named only first American and sought damages for First
American’s alleged negligence and breach of contract in carrying
out the foreclosure sale. On June 2, 1992, Edwards filed an
amended pro se complaint in which he added the other nine
defendants and also added additional grounds for relief.
On March 23, 1993, the district court (1) dismissed Edwards’
claims against the eight non-corporate defendants for lack of
personal jurisdiction in New Hampshire; (2) dismissed Edwards’
claims against John Hancock in light of Edwards’ pre-existing suit
against John Hancock in the District of Massachusetts; and (3)
transferred Edwards’ claims against First American to the District
of Nevada pursuant to 28 U.S.C. § 1404(a). Edwards appeals,
having been issued a Fed. R. Civ. P. 54(b) certificate by the district
court.
Claims Against the Eight Non-Corporate Defendants
The district court dismissed Edwards’ claims against the eight
non-corporate defendants — i.e., the six John Hancock employees
(Pearson, Gordon, McElwee, Brown, McKiernan, and Duncan),
Nevada attorney Hawkins, and Hawkins’ law firm — on the
ground that New Hampshire lacked personal jurisdiction over any
of them under the New Hampshire long-arm statute, N.H. Rev.
Stat. Ann. § 510:4.
Although Edwards appears to concede in his brief on appeal
that New Hampshire lacked personal jurisdiction over these eight
defendants, in his reply brief he insists that he did not mean to
waive that issue. Assuming, arguendo, that the issue is properly
before us, we would affirm the district court’s ruling on this point
for the reasons stated in the district court’s March 23, 1993 order.
Sa
Appendix A
Edwards did not adequately allege that any of these non-corporate
defendants — as distinguished from their corporate employer or
principal, John Hancock — transacted business, owned property,
or committed a tortious act in New Hampshire within the meaning
of the New Hampshire long-arm statute, N.H. Rev. Stat. Ann.
510:4. There is no dispute that the alleged tort —underinclusive
description of Saval’s properties in connection with the 1985
foreclosure sale — occurred in Nevada and that Edwards resided in
Massachusetts at that time. Since this is not a continuing tort, the
fact that Edwards moved to New Hampshire after the foreclosure
sale does not mean that the alleged tort occurred, in part, in New
Hampshire.
Edwards argues that instead of dismissing these claims, the
district court should have transferred the claims to another forum
which would have personal jurisdiction over these eight non-
corporate defendants. The district court did not deal with this point
in its opinion.
Edwards bases his argument on 28 U.S.C. § 1631, which
provides that whenever a “court finds that there is a want of
jurisdiction, the court shall, if it is in the interest of justice, transfer
such action ... to any other such court in which the action ...
could have been brought at the time it was filed.” There is no
question in this case that the district court had jurisdiction over the
subject-matter of this action; it was personal jurisdiction that was
lacking. Some courts and commentators, relying on a construction
of the legislative history of § 1631, have suggested that a court may
transfer an action under § 1631 only when it lacks subject-matter
jurisdiction, not personal jurisdiction. See, e.g., Levy v. Pyramid
Co. of Ithaca, 687 F. Supp. 48, 51 (N.D.N.Y. 1988), aff'd, 871 F.2d
9 (2nd Cir. 1989); 15 Wright, Miller, & Cooper, Federal Practice
and Procedure § 3842, at 323 (2nd ed. 1986). By contrast, other
6a
Appendix A
courts — pointing to the language of § 1631 itself, which speaks of
“jurisdiction” and makes no further distinction —have held that §
1631 does permit a transfer where the transferor court lacks
personal jurisdiction. See, e.g., Ross v. Colorado Outward Bound
School, Inc., 822 F.2d 1524,1527 (10th Cir. 1987); United States v.
American River Transportation, Inc., 150 F.R.D. 587 (C.D. Til.
1993). This court has yet to rule on the issue.
We need not do so here. Regardless of whether transfer is
sought under § 1631, under 28 U.S.C. § 1404(a) (which provides
that “[f]or the convenience of parties and witnesses, in the interest
of justice, a district court may transfer any civil action to any other
district or division where it might have been brought”), or under 28
U.S.C. § 1406(a) (which provides that “[t)he district court of a
district in which is filed a case laying venue in the wrong division
or district shall dismiss, or if it be in the interest of justice, transfer
such case to any district or division in which it could have been
brought”), we would affirm the denial of a transfer because all of
Edwards’ claims against the eight non-corporate defendants were
time-barred, under all statutes of limitations that might be
applicable, at the time he filed those claims in the instant case. A
federal court may not transfer an action to another court under
§ 1631 if the action was time-barred at the time it was filed. See,
e.g., Billops v. Department of the Air Force, 725 F.2d 1160, 1163
(8th Cir. 1984). Similarly, transfer under either § 1404(a) or
§ 1406(a) would not serve the interests of justice where the action
was time-barred at the time it was filed. See, e.g., McTyre v.
Broward General Medical Center, 749 F. Supp. 102, 105-09
(D.N.J. 1990).
Edwards asserted six causes of action against some or all of
these eight defendants: (1) negligence; (2) breach of contract; (3)
breach of an implied covenant of good faith and fair dealing: (4)
Ta
Appendix A
violation of RICO, 18 U.S.C. §§ 1961-68; (5) violation of the
Massachusetts Consumer Protection Act, Mass. Gen. Laws 93A;
and (6) deceptive trade practices under Nevada statutes. In
Edwards’ prior appeal arising out of the similar action Edwards
brought in Massachusetts, this court has already ruled that
Edwards’ cause of action for negligence was time-barred under
Massachusetts law at some time before January 1991, i.e., before
Edwards filed either the complaint or the amended complaint in the
instant action. Edwards, supra, 973 F.2d at 1029-30.
All other possible statutes of limitations for any of Edwards’
claims — whether under Nevada, Massachusetts, or New
Hampshire law — are six years or less. The applicable limitations
period for a negligence action is six years in New Hampshire, N.H.
Rev. Stat. Ann. 508:4, I, and four years in Nevada, Nev. Rev. Stat.
§ 11.190, 2(c). The applicable limitations period for a contract
action, or an action for breach of an implied covenant of good faith,
is six years in Massachusetts, Mass. Gen. Laws c. 260, § 2; six
years in New Hampshire, N.H. Rev. Stat. Ann. 508:4, I; and either
six or four years in Nevada, Nev. Rev. Stat. § 11.190, 1(b), 2(c).
The limitations period for a civil RICO action is four years. Agency
Holding Corp. v. Malley-Duff & Associates, Inc., 483 U.S.143, 156
(1987). The limitations period for an action under Mass. Gen.
Laws c. 93A is four years. Mass. Gen. Laws c. 260, § 5A. Finally,
Edwards has not disputed appellees’ assertion that the limitations
period for an action under Nevada deceptive trade practices
statutes is four years. Nev. Rev. Stat. §§ 598A. 220, 11.220.
This court already has strongly suggested, if not expressly
held, that under Massachusetts law Edwards’ cause of action for
negligence accrued by the time of the foreclosure sale, i.e., by
August 15, 1985. Edwards, supra, 973 F.2d at 1029-30. Appellees
urge that this accrual date should govern all of Edwards’ causes of
action.
8a
Appendix A
Edwards has given no reason, and we see none, to think that
his contract-based claims and his tort-based claims should be
governed by different accrual dates. In his brief on appeal,
moreover, Edwards expressly accepted the August 15, 1985
accrual date.
In his reply brief, Edwards does belatedly challenge this
accrual date. However, his only challenge, whether as a matter of
Massachusetts, New Hampshire, or Nevada law, is his contention
that his causes of action did not accrue until mid-1990, when the
U.S. Forest Service allegedly cancelled his grazing permit for
livestock on his Saval ranches. He alleges that this cancellation
“(djirectly deriv[ed]” from the defective foreclosure sale and
caused him substantial economic harm.
This argument has no merit because there has been, and can
be, no dispute that Edwards was on notice of possible substantial
injury as of the August 1985 foreclosure sale, when the
underinclusive property description may have caused the Saval
ranches to be sold for a lower price. A cause of action accrues when
a plaintiff has "knowledge, actual or attributed, of both harm to it
and the likely cause of such harm, . . . sufficient to stimulate further
inquiry which was likely to alert it to a cause of action against a
defendant.” Hanson Housing Authority v. Dryvit System, Inc., 29
Mass. App. Ct., 440, 446, 560 N.E.2d 1290, 1294 (1990), rev. den.,
409 Mass. 1101, 565 N.E.2d 792 (1991). The fact that a plaintiff
subsequently suffers some additional harm that may be traced to
the same likely cause does not delay accrual of the cause of action.
Id. (“It is not required that the extent of injury be known before
accrual of a cause of action”); Rowe v. John Deere, 130 N.H. 18,
21-23, 533 A.2d 375, 376-78 (1987). See Sorenson v. Pavlikowski,
94 Nev. 440, 443-44, 581 P.2d 851, 853-54 (1978).
Da
Appendix A
Accordingly, with an accrual date of no later than August 15,
1985, the latest Edwards could have brought any of his claims
against any of these defendants was August 15, 1991. Edwards’
amended complaint naming these eight defendants was not filed
until June 2, 1992.
Although Edwards’ original complaint was filed three days
before August 15,1993, it did not name any of these defendants.
Edwards has not argued that the provisions of Fed. R. Civ. P. 15(c)
— setting forth the circumstances under which claims raised in an
amended complaint can relate back to the time the original
complaint was filed ——- apply here. Even if he had raised this
argument — we note that both appellees’ briefs do discuss this
point, despite Edwards’ failure to raise it — we see no merit in it.
Fed R. Civ. P. 15(c)(1) permits relation back when “relation
back is permitted by the law that provides the statute of limitations
applicable to the action.” None of the statutes of limitations which
may possibly apply to any of Edwards’ claims contains such a
provision.
Fed. R. Civ. 15(c)(2) permits relation back when “the claim or
defense asserted in the amended pleading arose out of the conduct,
transaction, or occurrence set forth or attempted to be set forth in
the original pleading.” This provision governs the assertion of new
legal theories in an amended complaint, and does not apply when
the amended complaint seeks to add new parties. See Jacobson v.
Mcllwain, 145 F.R.D. 595, 603 (S.D. Fla. 1992).
Finally, Fed. R. Civ. P. 15(c)(3) permits relation back of an
amendment adding new parties when the claim asserted arose out
of the conduct set forth in the original pleading, as required by Rule
15(c)(2), “and, within the period [120 days] provided by Rule 4(j)
10a
Appendix A
for service of the summons and complaint, the party to be brought
in by amendment (A) has received such notice of the institution of
the action that the party will not be prejudiced in maintaining a
defense on the merits, and (B) knew or should have known that, but
for a mistake concerning the identity of the proper party, the action
would have been brought against the party.” Edwards meets
neither of these latter two requirements here.
Edwards has said nothing to indicate that any of the eight non-
corporate defendants named in the amended complaint received
notice of the original complaint within 120 days of its filing. Nor is
there anything in the record to suggest that Edwards made some
mistake regarding the proper party to be sued, rather than merely
deciding at a later time to sue further parties in addition to First
American. Indeed, Edwards himself acknowledged as much in his
memorandum in support of his motion to file the amended
complaint, when he stated, “The plaintiff has further studied his
cause of Action in this matter and has found the justification to
enlarge his Complaint by adding relevant supplementary
averments and by naming related additional appropriate
Defendants.”
Edwards argues in his brief on appeal that after he filed his
original complaint, and also after he filed his amended complaint,
the clerk of the district court improperly delayed issuing a
summons as required by Fed. R. Civ. P 4(a). This impropriety,
according to Edwards, delayed service of process upon the
defendants.
We need not consider this matter because Edwards’
contention, even if true, is irrelevant to our decision. All of
Edward’s claims against the eight non-corporate defendants were
time-barred before June 2, 1992 when the amended complaint
lla
Appendix A
naming these defendants was filed. Any subsequent delay in
service of process on these defendants, therefore, was beside the
point. Even if somehow the district court clerk improperly
prevented Edwards from providing these defendants with timely
notice of his original complaint and those circumstances somehow
satisfied Fed. R. Civ. P 15(c)(3))A) (points which are by no means
clear), this would avail Edwards nothing, since we have already
held that Fed. R. Civ. P. 15(c)(3)(B) was not satisfied.
Claims Against John Hancock
As we have said, on January 25, 1991 — well over a year
before the filing of his amended complaint in the instant case
adding claims against John Hancock — Edwards filed a similar
suit in the District Court for the District of Massachusetts, naming
John Hancock as the only defendant. Edwards’ Massachusetts
lawsuit, like the instant suit, sought to recover damages, based on
counts of negligence and breach of contract, for the
uinderinclusive property description in the notices of the
foreclosure sale of the Saval ranches.
The district court found that both the Massachusetts lawsuit
and Edwards’ instant claims against John Hancock involved the
same issues and the same parties. Accordingly, the district court
dismissed Edwards’ claims against John Hancock, citing the
“generally recognized doctrine of federal comity which permits a
district court to decline jurisdiction over an action when a
complaint involving the same parties and issues has already been
filed in another district.” Pacesetter Systems, Inc. v. Medtronic,
Inc., 678 F.2d 93, 94-95 (9th’ Cir. 1982). At the time of the district
court’s order, apparently Edwards’ Contract claim remained
pending in the Massachusetts suit, although his negligence claim
had been dismissed as time barred.” See Edwards, supra, 973 F.2d
1027.
12a
Appendix A
Edwards does not appear to challenge this district court ruling
in his brief on appeal. In light of “the settled appellate rule that
issues ... unaccompanied by some effort at developed
argumentation . . . are deemed waived,” United States v. Zannino,
895 F.2d 1, 17 (ist Cir.), cert. denied, 494 U.S.1082 (1990), we will
not consider this issue.
Claims Against First American
This court lacks appellate jurisdiction to consider Edwards’
appeal from the district court’s ruling transferring Edwards’ claims
against defendant-appellant First American Title Insurance Co. to
the District of Nevada pursuant to 28 U.S.C. § 1404(a). It is well-
settled that such a transfer order under § 1404(a) is an interlocutory
order and therefore is not appealable as a final judgment. Codex
Corp. Milgo Electronic Corp., 553 F.2d 735, 737 (ist Cir.), cer.
denied, 434 U.S. 860 (1977). Since Edwards has not obtained a
certificate for interlocutory appeal under 28 U.S.C. § 1292(b), we
lack jurisdiction over this aspect of his appeal.
In any event, even if we had jurisdiction, we would affirm the
district court’s transfer ruling for the reasons stated in the district
court’s March 23, 1993 order. Only under unusual circumstances
would we disturb a district court’s exercise of discretion in
ordering a transfer under § 1404(a). Jd. Certainly no such
circumstances exist here, given the undisputed facts that the
events giving rise to Edwards’ claims occurred primarily in
Nevada, the Saval ranches are in Nevada, and relevant documents
and witnesses will be readily available in Nevada.
13a
Appendix A
Conclusion
We affirm the district court’s denial of Edwards’ motion for
reconsideration. As the district court stated, if viewed as a Fed. R.
Civ. P. 59(e) motion to alter or amend the judgment, the motion was
untimely because it was served more than ten days after entry of
judgment. Fed. R. Civ. P. 59(e). If viewed as a Fed. R. Civ. P. 60(b)
motion, the motion stated no possible basis for relief from
judgment.
We have considered all of Edwards’ other arguments and find
them meritless.
The request of Hawkins and Hawkins, Rhodes & Sharp that
sanctions, including attorneys’ fees, be awarded against Edwards
is denied.
The judgment of the district court is affirmed.
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APPENDIX B — JUDGMENT AND ORDER OF THE
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEV HAMPSHIRE DATED JULY 9, 1993
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Civil Action No. 1:91-cv-00346-JD
Edwards
v.
First American Title, et al.
JUDGMENT
JUDGMENT is entered only as to Defendants John Hancock
Mutual Life Insurance Company, Harold Pearson, III, William
Gordon, John G. McElwee, Steven Brown, Thomas L. McKiernan,
Arthur Duncan, Prince Hawkins and Hawkins, Rhodes & Sharpe
pursuant to the Order dated July 8, 1993, by Chief Judge Joseph A.
DiClerico, Jr. (Signed by Clerk James R. Starr)
By the Court,
s/ James R. Starr
Clerk
Date: July 9, 1993
cc: A. Greer Edwards, Jr.,
James E. Morris, Esq.
Richard B. Couser, Esq.
Martha V. Gordon, Esq.
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15a
Appendix B
UNITED STATES DISTRICT COUPT FOR THE
DISTRICT OF NEW HAMPSHIRE
Civil No. 91-349-JD
A.G. Edwards. Jr.
v.
First American Title Co.. et al.
ORDER
Defendants Prince Hawkins (“Hawkins”); Hawkins, Rhodes
& Sharpe (“HR&S”); John Hancock Mutual Life Insurance
Company (“John Hancock”); Harold Pearson, Il; William
Gordon; John G. McElwee; Steven Brown; Thomas L. McRiernan;
and Arthur Duncan (the “individual defendants”) move for entry of
final judgment pursuant to Fed. R. Civ. P. 54(b). The plaintiff A.G.
Edwards, Jr. (“Edwards”) has filed a written objection to Hawkins
and HR&S’ motion, asking the court instead to certify its March
23, 1993 order for interlocutory appeal pursuant to 28 U.S.C.A.
§ 1292 (West Supp. 1993). Although the time has not yet run for
Edwards to respond to John Hancock and the individual
defendants’ motion, the court assumes Edwards objects to entry of
final judgment as to John Hancock and the individual defendants
for the same reasons already expressed in his written objection to
Hawkins and HR&S’ motion. In the event the court is in error in
making this assumption, Edwards may file his written objection by
July 27, 1993 for consideration by the court.
Rule 54(b) states “[w]hen multiple parties are involved, the
court may direct the entry of a final judgment as to one or more but
16a
Appendix B
fewer than all of the ... parties only upon an express
determination that there is no just reason for delay and upon an
express direction for the entry of judgment.” The policy of Rule
54(b) is “to permit district courts to determine that parties should,
in certain circumstances, be exempted from the burden of awaiting
the final outcome of a multi-party . . . case.” Willhauck v. Halpin,
953 F.2d 689, 701 (Ist Cir. 1991). Despite the policy underlying
Rule 54(b), “there is a long-settled and prudential policy against
the scattershot disposition of litigation.” Spiegel v. Trustees of
Tufts College, 843 F.2d 38, 42 (Ist Cir. 1988). The court should not
routinely enter judgment under Rule 54(b) and should not enter
judgment as an accommodation to lawyers or litigants.
Consolidated Rail Corp. v. Fore River Ry. Co., 861 F.2d 322, 325
(ist Cir. 1988); Spiegel, 843 F.2d at 42 (citing Santa Maria v.
Owens-Illinois Inc., 808 F.2d 848, 954 (Ist Cir. 1986); Panichella v.
Pennsylvania R.R. Co., 252 F.2d 452, 455 (3d Cir. 1958)).
To enter judgment pursuant to Rule 54(b), the court must
make an express direction for the entry of judgment in a separate
document and a corresponding entry must be made in the court’s
docket. Willhauck, 953 F.2d at 701. The court also must make an
express determination there is no just reason for delay. Id. In
determining whether there is just reason for delay, the court
considers factors including the relationship between the
adjudicated and unadjudicated claims, the possibility the need for
review might be mooted by future developments, the equities
between the parties, the possibility the reviewing court may be
obligated to consider the same issues a second time, preventing
delay and preventing unnecessary expense. See Spiegel, 843 F.2d
at 43 n.3 (adopting factors set forth in Allis-Chalmers Corp. v.
Philadelphia Elec. Co., 521 F.2d 360, 364 (3d Cir. 1975)); C.R.
Bard, Inc. v. Medical Elec. Corp., 529 F. Supp. 1382, 1388 (D.
Mass. 1982) (citing Curtiss-Wright Corp. v. General Elec. Co., 446
17a
Appendix B
U.S. 1 (1980)). The decision whether to enter final judgment rests
largely in the discretion of the trial court. Curtiss-Wright, 446 U.S.
at 8; C.R. Bard, 529 F. Supp. at 1388.
In this casc, the court has dismissed all claims against
Hawkins, HR&S, John Hancock and the individual defendants.
The remaining unadjudicated claims are against another defendant
and venue in that matter has been transferred to the District of
Nevada. “An order that disposes finally of a claim against one
party to the suit can be certified for an immediate appeal under the
rule even if identical claims remain pending between the
remaining parties.” National Metalcrafters v. McNeil, 784 F.2d
817, 821 (7th Cir. 1986).
If the court does not enter final judgment as to Hawkins,
HR&S, John Hancock and the individual defendants at this time,
Edwards must wait until the case against the remaining defendant
in the District of Nevada is resolved to appeal their dismissal. If
Edwards then succeeds in his appeal, the district court would have
to consider the merits of his claims against them. Considering the
claims against them after the district court in Nevada has resolved
the claims against the remaining defendant would waste judicial
resources because the claims arise from the same facts. B y
contrast, if the court enters final judgment as to Hawkins, HR&S,
John Hancock and the individua. defendants at this time, Edwards
may immediately appeal the portion of the court’s order dismissing
them pursuant to 28 U.S.C.A. § 1291 (West Supp. 1993). If the
appellate court finds the district court erred in dismissing them, the
district court may be able to consolidate Edwards’s claims against
them with the case against the remaining defendant in the District
of Nevada. The court therefore finds « ntering final judgment as to
Hawkins, HR&S, John Hancock and the individual defendants at
this time may promote judicial economy.
18a
Appendix B
In addition, since the court dismissed Hawkins, HR&S and the
individual defendants for lack of personal jurisdiction and
dismissed John Hancock based on the first-filed rule, rather than
dismissing them based on the merits of Edwards’s claims, allowing
appeal of that dismissal at this time will not require an appellate
court to review the same issues twice if the case against the
remaining defendant is appealed. And finally, Hawkins and HR&S
state that withholding final judgment will require them to incur
expenses monitoring the remaining case. Taking all of the
foregoing factors into consideration, the court finds there is no just
reason for delaying entry of final judgment as to Hawkins, HR&S,
John Hancock and the individual defendants and directs the entry
of final judgment as to them.
Summary
The court grants the Defendants Prince Hawkins and
Hawkins, Rhodes & Sharpe’s Motion for Entry of Final Judgment
Pursuant to F.R.Civ.P. 54(b) (document no. 35). The court grants
the Motion for Extry of Final Judgment Pursuant to Federal Rule of
Civil Procedure 54(b) (document no. 37).
SO ORDERED.
“i Joseph A. DiClerico, Jr.
JosephA. DiClers0, Je.
Chief Judge
July 8, 1993
cc: A. Greer Edwards, pro se
Richard B. Couser, Esquire
Martha V. Gordon, Esquire
eT
19a
APPENDIX C — ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF NEW
HAMPSHIRE FILED MARCH 23, 1993
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Civ. No. 91-346-JD
A. G. Edwards. Jr.
v.
First American Title Co.. et al.
ORDER
Plaintiff A.G. Edwards, Jr. (“Edwards”) has sued defendants
First American Title Insurance Company (“First American”); John
Hancock Mutual Life Insurance Company (“John Hancock”);
Prince Hawkins (“Hawkins”); Hawkins, Rhodes & Sharp
(“HR&S”); and Harold Pearson, III; William Gordon; John G.
McElwee; Steven Brown; Thomas L. McKiernan and Arthur -
Duncan (collectively, the “individual Hancock defendants”). The
court considers defendants’ motions to dismiss or to transfer venue
from the District of New Hampshire.
Background
The present action was commenced on August i2, 1991 when
Edwards filed a complaint against First American. On October 2,
1992, Edwards filed an amended complaint (“Complaint”) naming
the other nine defendants. The Complaint identifies the individual
Hancock defendants as “salaried senior officials” of John
Hancock. Complaint {J 5, 6.
ee
20a
Appendix C
The Complaint alleges the following facts. In 1973, Edwards
and two other persons organized a partnership, Saval Ranching
Company (“Saval”), to purchase and operate two commercial
cattle ranches in Nevada. Edwards operated Saval’s business from
his residence in Massachusetts through 1988 and afterwards from
his residence in New Hampshire. In 1975-76, Saval borrowed
approximately $1,500,000 from John Hancock, secured by deeds
of trust on the ranches. The deeds of trust were executed by Saval,
John Hancock, and First American as John Hancock’s trustee.
Subsequently, the United States Department of Agriculture loaned
money to Saval, secured by deeds of trust on the same ranches. In
1983, Saval defaulted on the notes to John Hancock. In 1985,
Edwards became the sole owner of Saval. Also in 1985, John
Hancock, through the individual Hancock defendants and First
American, foreclosed on the ranches. Hawkins and HR&S acted as
legal counsel for John Hancock in connection with the foreclosure
proceedings.
The deeds of trust securing John Hancock’s loans expressly
included the mineral, gas and oil rights of the properties. However,
First American excepted the mineral, gas and oil rights from the
published description of the properties used in connection with the
foreclosure proceedings. Edwards attended the foreclosure sale
but was not allowed to bid on the properties. The United States
purchased the properties at the foreclosure sale for $1,231,915.60
and acquired the release of John Hancock’s interest in the
properties. The United States brought suit against Edwards in the
United States District Court for the District of Nevada to recover a
$600,000 deficiency. On January 5, 1988, the Nevada court ruled
that First American had violated Nevada’s foreclosure statutes by
excepting the mineral, gas and oil rights from the published
description of the properties, and invalidated the foreclosure. In
1989, the United States and Edwards entered into a settlement
2la
Appendix C
agreement pursuant to which Edwards paid a sum of money to the
United States and ihe United States transferred to Edwards all its
interest in the properties.
In this action, Edwards seeks damages for the defendants’
alleged improper conduct in carrying out the foreclosure sale. The
Complaint states that the foreclosure was conducted negligently
and in breach of the defendants’ “express and implied warranties
of good faith and adherence to prevaillng law.” Complaint { 67.
Discussion
I. Motions of Individual Hancock Defendants, Hawkins and
HR&S to Dismiss
The individual Hancock defendants, Hawkins and HR&S
(collectively, the “non-corporate defendants”) have moved to
dismiss the action against them for lack of personal jurisdiction
pursuant to Fed. R. Civ. P. 12(b)(2). The plaintiff has the burden of
demonstrating facts sufficient to establish personal jurisdiction
over the defendants. See United Elec., Radio and Machine Workers
v. 163 Pleasant St. Corp., 960 F.2d 1080, 1090 (Ist Cir. 1992), rev’d
on other grounds, No. 92-1865, 1993 U.S. App. LEXIS 3452 (Ist
Cir. Mar. 3, 1993); Concord Labs, Inc. v. Ballard Medical Prods.,
701 F. Supp. 272, 274 (D.N.H. 1988); Velcro Group Corp. v.
Billarant, 692 F. Supp. 1443, 1446 (D.N.H. 1988). In determining
whether the plaintiff has met this burden, the court takes properly
pleaded facts as true and construes all reasonable inferences in
favor of the plaintiff. Velcro Group, 692 F. Supp. at 1446. The court
must construe a pro se complaint liberally. See Haines v. Kerner,
404 U.S. 519, 520-21 (1972). In reviewing this matter the court has
also considered and construed liberally all of plaintiff’s responses
and affidavits filed in opposition to the pending motions.
22a
Appendix C
New Hampshire’s long-arm statute specifies when a
nonresident defendant is subject to personal jurisdiction in New
Hampshire. N.H. Rev. Stat. Ann. § 510:4 (1983). The statute
provides
[aJny person who is not an inhabitant of this
state and who, in person or through an agent,
transacts any business within this state,
commits a tortious act within the state, or has
the ownership, use, or possession of any real or
personal property situated in this state submits
himself, or his personal representative, to the
jurisdiction of the courts of this state as to any
cause of action arising from or growing out of
the acts enumerated above.
Id. If the court finds the defendants are subject to jurisdiction under
the long-arm statute, the court must analyze whether the assertion
of jurisdiction is consistent with the due process requirement of the
United States Constitution. Buckley v. McGraw-Hill Inc., 762 F.
Supp. 430, 436 (D.N.H. 1991).
Edwards argues the non-corporate defendants are subject to
personal jurisdiction under § 510:4 because they transact business
in New Hampshire through their “agents” and clients, John
Hancock and First American. This argument, however, rests upon a
misinterpretation of agency law. The non-corporate defendants
were agents of John Hancock and not vice versa. Personai
jurisdiction over employees is independent of personal jurisdiction
over their employers. See Velcro Group, 692 F. Supp. at 1449; Lex
Computer & Management Corp. v. Eslinger & Pelton, P.C., 676 F.
Supp. 399, 405 (D.N.H. 1987). Edwards, in his Complaint and in
his responses to defendants’ motions, offers only bald assertions
23a
Appendix C
that First American or John Hancock were acting as agents of the
non-corporate defendants while transacting business in New
Hampshire. Furthermore, the noncorporate defendants deny
transacting business in New Hampshire and submitted affidavits in
support of their position. The court finds Edwards has failed to
meet his burden of showing that, as to this cause of action, the non-
corporate defendants are subject to personal jurisdiction under
New Hampshire’s long-arm statute because they transact business
in New Hampshire.
Edwards further asserts the non-corporate defendants are
subject to personal jurisdiction under § 510:4 because they have
committed torts causing injury within New Hampshire. The
noncorporate defendants deny they have committed torts within
New Hampshire. New Hampshire courts interpret § 510:4 to grant
jurisdiction over a non-resident defendant “ ‘when the impact in
New Hampshire of the deendant’s out-of-state conduct has
allegedly resulted in a New Hampshire tort and was more than
fortuitous, so that the defendant knew or should have known his
conduct could injure a person here.’ ” Concord Labs., 701 F. Supp.
at 275 (quoting Lex Computer, 676 F. Supp. at 403); see also Velcro
Group, 692 F. Supp. at 1447. For example, in cases alleging
ongoing harm to businesses, courts have held that the defendants’
out-of-state conduct resulted in a New Hampshire tort when the
plaintiffs’ principal place of business was located in New
Hampshire. Velcro Group, 692 F. Supp. at 1447 (quoting Lex
Computer, 676 F. Supp. at 403); cf. Buckley, 762 F. Supp. at 43839
(in defamation case, defendant’s out-of-state publication found to
be a New Hampshire tort because plaintiff resides in New
Hampshire). “Since the brunt of the harm would be felt in New
Hampshire at the plaintiff’s principal place of business,
jurisdiction is proper in ‘New Hampshire based on the “effects” of
the defendants [sic] out-of-state conduct.’ ” Concord Labs., 701 F.
24a
Appendix C
Supp. at 276 (quoting Lex Computer, 676 F. Supp. at 404) (internal
citation omitted). These cases are based on New Hampshire’s
interest in exercising jurisdiction over those who commit torts
within its boundaries. /d. (citing Keeton v. Hustler Magazine Inc.,
465 U.S. 770 (1984); Estabrook v. Wetmore, 129 N.H. 520 (1987));
see also Tavoularis v. Womer, 123 N.H. 423, 425-26 (1983).'
In this case, Edwards argues the effects of the tort are felt in
New Hampshire because he is currently a New Hampshire resident
and now conducts his business from New Hampshire. However,
the court finds that Edwards’ relocation to New Hampshire does
not alter the fact that the tort, if any, occurred in 1985 in Nevada,
when Edwards was a resident of Massachusetts. The mere fact that
after the tort occurred Edwards relocated to New Hampshire does
not give rise to personal jurisdiction in the District of New
Hampshire when the tort alleged is not of an ongoing nature. The
court finds Edwards has failed to allege sufficient facts in his
complaint, responses and affidavits to demonstrate that the non-
corporate defendants are subject to personal jurisdiction under
§ 510:4 because they have committed torts within New
Hampshire.
Because the court lacks personal jurisdiction over the
noncorporate defendants, their motions to dismiss pursuant to Fed.
R. Civ. P. 12(b)(2) are granted. In view of the venue analysis which
follows in the discussion of Edwards’ claims against First
American, the court notes that even if the court had personal
jurisdiction over the non-corporate defendants, the District of New
Hampshire is an inappropriate venue for this action.
1. Edwards’ citation to Tavoularis is inapposite. In Tavoularis, New
Hampshire exercised personal jurisdiction over a defendant who negligently
entrusted an automobile to another person, who injured the plaintiff in an accident in
New Hampshire. 123 N.H. at 424-25. The injury in Tavoularis took place in New
Hampstire. /d. In this case, the actual injury occurred in Nevada.
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25a
Appendix C
Il. John Hancock’s Motion to Dismiss
John Hancock does not challenge personal jurisdiction or
venue in the District of New Hampshire. John Hancock argues the
case against it should be dismissed because Edwards has already
commenced an action against John Hancock in the District of
Massachusetts and because Edwards’ claims against John
Hancock are barred by the doctrine of res judicata. In the
alternative, John Hancock argues the court should transfer venue
to the District of Nevada.* Edwards requests that if the court
decides to transfer the case, the court consolidate it with a case
pending in the District of Massachusetts, Edwards v. John
Hancock Mutual Life Insurance Co., No. 91-10237-K (D. Mass.).
The court considers whether this action should be dismissed
due to the existence of the Massachusetts lawsuit. “There is a
generally recognized doctrine of federal comity which permits a
district court to decline jurisdiction over an action when a
complaint involving the same parties and issues has already been
filed in another district.” Pacesetter Sys., Inc. v. Medtronic Inc.,
678 F.2d 93, 94-95 (9th Cir. 1982); see also Frigorifico Caparra,
Inc. v. J. Fleishman & Co., 58 F.R.D. 199, 200 (D.P.R. 1972).
Although the “first-filed” rule should not be applied mechanically,
normally “the court which first acauired jurisdiction should try the
lawsuit and no purpose would be served by proceeding with a
second action.” Pacesetter, 678 F.2d at 95; cf. Gemco
Latinoamerica, Inc. v. Seiko Time Corp., 623 F. Supp. 912, 916
(D.P.R. 1985) (the forum where an action is first filed is given
priority over subsequent actions in venue analysis).
Considerations of judicial administration, comity, avoiding
2. In view of the court’s decision on John Hancock’ s motion to dismiss due to
the pending action in the District of Massachusetts, the court need not address John
Hancock’s alternative argument.
26a
Appendix C
duplicative litigation and avoiding conflicting determinations
weigh in favor of dismissing the later-filed action when ‘.1e first-
filed forum is capable of efficiently resolving the issues. See West
Gulf Maritime Ass'n v. ILA Deep Sea Local 24, 751 F.2d 721, 729
(Sth Cir.), cert. denied, 474 U.S. 844 (1985); Pacesetter, 678 F.2d
at 96; Gemco, 623 F. Supp. at 916.
The Massachusetts lawsuit was filed on January 25, 1991 and
the New Hampshire lawsuit was filed on August 12, 1991.
Edwards asserts that the Massachusetts case is dissimilar from the
New Hampshire case, although he admits that the issues in the
cases overlap slightly. John Hancock argues the lawsuits challenge
the same actions and submits an affidavit from Edward S. Rooney,
Jr., an attorney representing John Hancock in the Massachusetts
action, in support of this contention. John Hancock also provided
the court with a copy of the court file in the Massachusetts lawsuit.
In the Massachusetts lawsuit, John Hancock is the only
defendant. Edwards alleges misconduct by John Hancock in
conection with the foreclosure sale and the excepting of the
mineral, gas and oil rights on the same properties at issue in this
case. The court finds that the Massachusetts and the New
Hampshire lawsuits involve the same issues and the same parties.
In view of the court’s obligation to preserve judicial resources and
the fact that the Massachusetts lawsuit was filed prior to the instant
lawsuit, the court dismisses the instant action. Edwards’ claims
concerning John Hancock’s conduct in connection with the 1985
foreclosure sale can be adjudicated in the lawsuit pending in the
District of Massachusetts.
III. First American’s Motion to Dismiss
First American does not challenge personal jurisdiction in the
x
27a
Appendix C
District of New Hampshire. First American asks the court to
dismiss the case for improper venue pursuant to 28 U.S.C.A.
§ 1391(b) (West Supp. 1992) or, in the alternative, to transfer the
case to the District of Nevada.
The court considers whether venue properly lies in the District
of New Hampshire. The Complaint alleges diversity jurisdiction
pursuant to 28 U.S.C.A. § 1332(a) (West Supp. 1992). Complaint
¥ 7. The Complaint also raises a federal question by alleging
violations of 18 U.S.C.A. § 1961-68 (West 1984 & Supp. 1992).
Complaint { 9. The district in which a case not grounded solely on
diversity may be brought is governed by 28 U.S.C.A. § 1391(b),
which states
[a] civil action wherein jurisdiction is not
founded only on diversity of citizenship may,
except as otherwise provided by law, be
brought only in (1) a judicial district where any
defendant resides, if all defendants reside in the
same State, (2) a judicial district in which a
substantial part of the events or omissions
giving rise to the claim occurred, or a
substantial part of property that is the subject of
the action is situated, or (3) a judicial district in
which any defendant may be found, if there is
no district in which the action may otherwise
be brougit.
Section 1391(c) provides that “[f]or purposes of venue under
this chapter, a defendant that is a corporation shall be deemed to
reside in any judicial district in which it is subject to personal
jurisdiction at the time the action is commenced.” As noted above,
First American was subject to personal jurisdiction in New
28a
Appendix C
Hampshire at the time the action was commenced. At this point in
time First American is the only remaining defendant in the case and
therefore venue is proper in the District of New Hampshire
pursuant to § 1391(b)(1).’
When venue is found to be proper, the court may transfer an
action to another district pursuant to 28 U.S.C.A. § 1404(a) (West
Supp. 1992). “For the convenience of parties and witnesses, in the
interest of justice, a district court may transfer any civil action to
any other district or division where it might have been brought.” Jd.
The court notes that the case could originally have been brought in
the District of Nevada because a substantial part of the events or
omissions giving rise to the claim occurred in Nevada and the
property that is the subject of the action is located in Nevada. See
28 U.S.C.A. § 1391(b)(2).
The court next analyzes whether the interest of justice
requires transferring the case against First American to the District
of Nevada. The First Circuit Court of Appeals has noted that “the
convenience of the parties and witnesses, the order in which
jurisdiction was obtained by the district court, the availability of
documents, and the possibilities of consolidation” are factors for
the district court to consider in determining whether to transfer a
case. Cianbro Corp. v. Curran- Lavoie, Inc., 814 F.2d 7, 11 (Ist Cir.
1987) (citing 28 U.S.C. § 1404(a); Codex Corp. v. Milgo Elec.
3. The court notes that, if venue were to be determined as of the time the
Complaint was filed, venue would be improper in the District of New Hampshire
under § 1391(b)(1) because all the defendants did not reside in the same state. In that
case, the court could transfer the action to the District of Nevada pursuant to 28
U.S.C.A. § 1406(a) (West 1976) if transfer were “in the interest of justice.” For the
reasons stated herein, the court finds the “interest of justice” analysis under § 1406(a)
very similar to the “interest of justice” analysis under § 1404(a) (West Supp. 1992) as
far as the facts of this case are concerned.
.
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29a
Appendix C
Corp., 553 F.2d 735, 737 (Ist Cir.), cert. denied, 434 U.S. 860
(1977)); see also Wellons v. Numerica Sav. Bank, 749 F. Supp. 336,
337 (D. Mass. 1990) (citing Cianbro, 814 F.2d at 11). The court
may also consider whether the law of the forum state will govern
the action. See Wellons, 749 F. Supp. at 337. Adefendant seeking to
transfer an action has the burden of showing that these factors
weigh in favor of transfer. Buckley, 762 F. Supp. at 439. “The
Supreme Court has held that ‘[u]nless the balance is strongly in
favor of the defendant, the plaintiff’s choice of forum should rarely
be disturbed.’ ” Jd. (quoting Gulf Oil Corp. v. Gilbert, 330 U.S.
501, 508 (1947)).
The convenience of the witnesses is the single most important
factor for the court to consider when deciding whether to transfer
an action. Jd. at 440. In this case, Edwards challenges events
surrounding foreclosure-proceedings of property located in
Nevada. Because the sale occurred in Nevada, it is reasonable to
conclude that the witnesses involved in the sale are also in
Nevada.‘ Similarly, the documents pertaining to the foreclosure
sale and the land will be readily available in Nevada. The law of
Nevada and possibly of Massachusetts, but not the law of New
Hampshire, will apply in the case. On the other hand, the court
notes that Edwards resides in New Hampshire and First American
is a California corporation with at least one office in New
Hampshire.
The court finds that First American has met its burden of
showing that the interest of justice and the convenience of the
witnesses and parties weigh strongly enough in its favor to justify
transferring the suit to the District of Nevada pursuant to
§ 1404(a).
4. Hawkins and HR&S have submitted an affidavit stating that the expected
witnesses are in Nevada.
30a
Appendix C
Summary
The court enters the following orders.
On Motion to Dismiss of Defendants Harold Pearson, III,
William Gordon, John G. McElwee, Steven E::wn, Thomas L.
McKiernan and Arthur Duncan (document no. 17): Mion granted
to the extent that the case is dismissed against these defendants.
On Prince A. Hawkins’ Motion to Dismiss or Transfer
(document no. 15): Motion granted to the extent that the case is
dismissed against Hawkins and Hawkins, Rhodes & Sharp.
On Motion to Dismiss or Transfer Venue of Defendant John
Hancock Mutual Life Insurance Company (document no. 16):
Motion granted to the extent that the case is dismissed against John
Hancock.
On First American Title Insurance Company’s Motion in the
Alternative to Dismiss or Transfer for Lack of Proper Venue
(document no. 9): Motion granted to the extent that the case against
First American is transferred to the United States District Court for
the District of Nevada.
SO ORDERED.
s/ Joseph A. DiClerico, Jr.
Joseph A. DiClerico, Jr.
Acting Chief Judge
March 23, 1993
3la
Appendix C
cc: A. Greer Edwards, Jr., pro se
Richard B. Couser, Esquire
Martha V. Gordon, Esquire
32a
APPENDIX D — PLAINTIFF’S COMPLAINT
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF NEW HAMPSHIRE
C.A. #
A. GREER EDWARDS, JR.
Plaintiff
vs.
FIRST AMERICAN TITLE COMPANY OF NEVADA,
Defendant
COMPLAINT
COUNTI
1. The plaintiff, A. Greer Edwards, Jr., is a resident of the
state of New Hampshire;
2. The defendant, First American Title Company of Nevada,
is a Nevada corporation with its principal place of business in
Nevada; :
3. In 1973 the plaintiff had organized, together with two other
persons, a Nevada partnership, the Saval Ranching Company, for
the purpose of acquiring and operating two ranches: the Saval and
Haystack;
4. The plaintiff is the only remaining party in interest;
33a
Appendix D
5. In 1975 and 1976 respectively, the partnership had
borrowed approximately 1 million dollars from the John Hancock
_ Mutual Life Insurance Company, a Massachusetts corporation, as
evidenced by two promissory notes secured by two first deeds of
trust;
6. The deeds of trust were executed by the borrowers, on the
one hand and the lender and defendant title company, on the other;
Exh 2(a) and 2(b);
7. Thereafter, the United States of America, through the
Farmers Home Administration, extended to the partnership several
_ loans. These were secured by two second trust deeds on the same
| realestate;
8. In 1983, due to an epidemic cattle disease outbreak,
_ drought conditions and a general nation-wide decline in cattle and
_ agricultural values, the borrowers became delinquent in their
payments to Hancock, the lender;
9. In July of 1985 the defendant, First American Title
_ Company of Nevada, started foreclosure proceedings of the
$
plalntiff’s real estate;
10. The deeds of trust securing Hancock’s loans expressly
> included the mineral, oil and gas rights in the description of the
| properties. Exh. 2(a), par. 13 and Exh. 2(b), par. 3;
in leaiinadl
| 11. Notwithstanding, the defendant title company, in breach
_ of its duty to the plaintiff, expressly “excepted” the mineral, gas
and oil rights in the statutory description of the properties being
foreclosed, in its Notice of Sale;
34a
Appendix D
12. The Nevada statutes require that properties being
foreclosed be Particularly described, N.R.S.21.140(c) 2;
13. Not only did the defendant title company “except” the
mineral, oil and gas rights expressly included in the description of
the properties in the first deeds of trust. It also aggravated the
“exception” by adding to it the following ambiguous language:
“said rights forming no part of the guarantee”, Exh. 1;
14. At all pertinent times and at present, pit gold mining in
northern and eastern Nevada had made Nevada the leading gold
producing state in the United States. The United States District
Court for the District of Nevada duly took judicial notice of this
fact (Please see The United States of America Vs. A. Greer
Edwards, Jr. et al, Civil R-86-199 BRT, Exh. 1);
15. The Freeport- McMoran Gold Company, the largest gold
mining company in North America, had at all pertinent times
conducted operations immediately adjacent to the plaintiff’s
property, the Saval ranch. The company had expressed great
interest in the acquisition of the plaintiff’s ranches, at various
times;
16. As a result of the “exception”, accompanied as it was by
the ambiguous language, senior officials of the Freeport-McMoran
Gold Company were present at the foreclosure auction, but
declined to bid;
17. The United States of America, holder of the second trust
deeds, was the only bidder at the sale and acquired the properties,
as a single parcel, for the amount of $1,231,925.60;
18. The United States of America paid Hancock approximately
Co yee at
BO RES | LLL, ILE GREE AIRE
35a
Appendix D
$1,250.000.- for the release of its interest and proceeded to bring
action against the plaintlff to recover a deficiency in the District
Court of Nevada;
19. On January 5, 1988 the District Court for the District of
Nevada ruled that the Notice of foreclosure violated the Nevada
foreclosure statutes and that the “exception” of the mineral, oil and
gas rights from the description of the properties in the Notice of
sale substantially prejudiced the plaintiff, Edwards. Exh. 1;
20. Subsequently the United States of America and the
plaintiff, Edwards, reached a settlement agreement, finalized in
1989, by which, in consideration of $400,000.- , the United States
agreed to transfer the properties it had acquired at the auction sale
to the plaintiff, Edwards; Payment was made and the properties
were so re-transferred.
As a proximate result of the defendant title company’s grossly
negligent actions and breach of duty owed the plaintiff, the
plaintiff not only lost the participation at the foreclosure sale of
viable interested bidder, the Freeport-McMoran Gold Company,
but sustained a variety of provable consequential damages in the
amount of at least three million dollars.
WHEREFORE the plaintiff requests that judgment be entered
in his favor against the defendant title company, in the amount of
three million dollars.
COUNT II
The plaintiff, A. Greer Edwards, Jr., re-avers and realleges
par. 1 to 20 inclusive and further alleges as follows:
36a
Appendix D
21. The defendant title company, the First American Title
Company of Nevada, undertook and promised the borrowers that
in the event of foreclosure, it would conform to the requirements of
the law. Exh. 2(a) par. 8;
22. The Nevada statutes require that properties being
foreclosed be particularly described, N.R.S. 21.140 (c) 2. Thus by
excepting the mineral, gas and oil rights from the description in its
Notice of sale, the defendant title company breached its
undertaking to conform to the requirements of law and the implied
warranty to conduct the foreclosure sale in good faith.
As a proximate result of the defendant title company’s breach
of its express promise and implied warranty of good faith plaintiff
not only lost the participation at the foreclosure sale of a viable
interested bidder, but sustained a variety of other provable
consequential damages in the amount of at least three million
dollars.
WHEREFORE the plaintiff requests that judgment be entered
in his favor against the defendant title company, in the amount of
three milllon dollars.
JURY DEMAND
The plaintiff demands trial by jury on all issues so triable.
oe NE
37a
APPENDIX E — PLAINTIFF’S FIRST AMENDED
COMPLAINT
A. G. Edwards Jr.
| Rural Route # 1, Box 208
Bennington Battle Trail
| Wilton Center, New Hampshire 03086
Telephone 617-566-2480
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF NEW HAMPSHIRE
CA No. 91-346-S
A. G. Edwards Jr.,
plaintiff
First American Title Company
Head Office, 114 E. Sth St., Santa Ana, Calif. 92701
John Hancock Mutual Life Insurance Company
John Hancock Place, Boston, Mass. 02115,
Prince Hawkins, Attorney,
Hawkins, Rhodes and Sharp, Attorneys,
Post Office Box 750, Reno, Nevada 89504,
Harold Pearson III, Agricultural Loan Officer,
William Gordon, Vice-President
John G. McElwee, Chairman Emeritus,
Steven Brown, Chairman
John Hancock Mutual Life Insurance Co.,
John Hancock Place, Boston, Mass. 02115,
38a
Appendix E
Thomas L. McKiernan, Agricultural Investment
Officer, John Hancock Mutual Life Insurance Co.
South 179 Stevens Street, Spokane, Washington 99204,
Arthur Duncan, Agricultural Investment Officer,
John Hancock Mutual Life Insurance Company
Post Office Box 1087, Twin Falls, Idaho 83301,
Defendants
PLAINTIFF’ S FIRST AMENDED COMPLAINT
COUNTI
1. The plaintiff, A. G. Edwards Jr., is a citizen of the State of
New Hampshire.
2. Defendant First American Title Company (Title Company)
is a California corporation, doing Title and related business in
majority of the United States including New Hampshire.
3. The John Hancock Mutual Life Insurance Company
(Hancock) is a Massachusetts corporation which, among other
business activities, has financed agricultural acquisitions and
agribusiness -operations throughout the United States and
elsewhere, and does extensive business of several types within the
State of New Hampshire.
4. Defendant Attorney Prince Hawkins and the Defendant
Law Firm of Hawkins, Rhodes and Sharp of Reno, Nevada, at all
times pertinent served as a Western legal representative and legal
agent for and legal consultant to Defendant John Hancock Mutual
Life Insurance Company of Massachusetts, conducting various
legakbusiness at the direction of Defendant Hancock.
Reni
39a
Appendix E
5. Defendants Harold Pearson III, William Gordon, John G.
McElwee and Steven Brown during all times pertinent were
salaried senior officials of Defendant Hancock, based at Boston,
Massachusetts.
6. Defendants Thomas L. McKiernan of Spokane,
Washington and Arthur Duncan of Twin Falls, Idaho, at all times
pertinent served as Agricultural Investment Officers salaried by
the Defendant Hancock.
7. This Action is brought under U.S.C. 28 Section 1332.
8. This Action is brought for damages which exceed
$50,000.00.
9. This Action is brought as well under 18 U.S.C. Sections
1961 - 1968, whereunder plaintiff has been damaged in his
: "business by the wrongful behavior of Defendants in no less than
two instances over a ten year period, which instances of wrongful
commercial behavior by Defendants utilized mail and wire
| transmittals.
10. This Action is brought as well citing applicable
/ Massachusetts General Laws 93-A pertaining to Consumer
Protection specifics as they relate to the business activities of
Massachusetts based corporations and to the official actions,
sanctioned or not sanctioned, of salaried officials and paid agents
of these specific Massachusetts coxporations when conducting
' business relationships with Massachusetts based business entities
- including plaintiff.
| 11. This Action is brought a3 well under Nevada Revised
: Statutes 41.600 and 598.410, 598.411, 598.412, 598.413 and
:
;
40a
Appendix E
598.490 pertaining to Deceptive Trade Practices, which State and
which Statutes relate to the situs of the real estate in question and to
the locus of the subsequently described wrongful foreclosure and
forced sale carried out by the Defendants.
12. This Action is brought as well as an Action upon a
Contract.
13. In 1973, the plaintiff had organized with two other
persons a partnership entitled Saval Ranching Company (Saval),
for the purpose of acquiring and operating two commercial cattle
ranches, the Saval Ranch and the Haystack Ranch.
14. Effective 1974 and subsequently at all times pertinent,
New Hampshire and Massachusetts have served as the operating
headquarters and the locus of all decision making and all policy
control of all Saval agribusiness and related activities.
15. The plaintiff became the only remaining party in interest
commencing 1985, continuing to do business to the present as
Saval Ranching Company.
16. In 1975 and 1976, respectively, Saval had borrowed
approximately one and one-half million dollars from Defendant
Hancock’s Agricultural Loan sub-section, as evidenced by two
promissory notes secured by individual and separate First Deeds of
Trust upon, respectively, the Saval Ranch and the Haystack Ranch.
17. These two Deeds of Trust were each executed by the
Saval borrowers on the one hand, and by both the Lender Hancock
and by the Defendant Title Company (Hancock’s Trustee) on the
other.
4la
Appendix E
18. Thereafter, United States of America through its
Department of Agriculture/Farmers Home Administration
extended operating loans to the Saval partnership, secured by
individual Second Deeds of Trust upon the same two separate
parcels of ranch real estate.
19. In 1983, due to an area-wide epidemic cattle disease, due
also to severe prolonged regional drouth conditions and resulting
from a precipitous national decline in both agricultural land and
cattle valuations, the borrowers unavoidably became delinquent in
their payments to Defendant Hancock, the lender.
20. Hancock, together with its relevant officers, Defendants
Pearson, Gordon, Brown, McElwee, McKiernan and Duncan and
others (Defendants Pearson et al) in 1984 and subsequently
analyzed the status of all Hancock’s many outstanding and overdue
agribusiness loans. These named parties recognized that recent
severely adverse national agribusiness circumstances as described
above had vastly undermined the financial integrity of substantial
of Hancock’s agricultural borrowers, many of whom had become
unavoidably delinquent in their scheduled repayments to Hancock.
21. Taking cognizence of this widespread delinquent status
and the advanced financial vulnerability of most of their
agricultural borrowers nation-wide, Hancock and Defendants
‘ Pearson et al (Pearson, Gordon, Brown, McElwee, McKiernan,
Duncan and others) found it essential circa 1984 that Hancock
» adopt contrived stratagems to obfuscate and to disguise the
seriously arrears status of much of Hancock’s agribusiness
lending. These named parties, by information and belief, sought to
: create for public and for insurance regulatory perception the
facade that Hancock’s agricultural loan activities remained overall
> sound, stable and in current status.
42a
Appendix E
22. In numbers of instances where pledged borrower
collateral securing Hancock’s delinquent agricultural loans had
declined to valuations seriously below the face-amount loan
balances remaining due to Hancock, Defendants Hancock/Pearson
et al, by information and belief, contrived this artifice: Defendants
Hancock/Pearson et al would extend maximal forbearance to those
delinquent borrowers with negative net worth and in many
instances would even extend to such borrowers further substantial
loan amounts, in order to maintain those seriously delinquent
borrowers financially afloat, avoiding thereby the costly and
embarrassing alternative that a Hancock foreclosure would
recover only a percentage of total amounts owing.
23. By information and belief, Hancock thus established the
policy to prop up its most financially vulnerable borrowers with
patience and, as necessary, with additional Hancock loan proceeds,
and Hancock thus would studiously avoid foreclosing on each
pledged agricultural property where forced sale of the collateral
would net Hancock less than its outstanding loan balance and
costs. This practice of extending forbearance and additional loan
amounts, and of avoiding foreclosure, while courting possible
disaster for the lender Hancock, would disguise to outsiders
Hancock’s financial vulnerability and Hancock’s precariously
overextended agribusiness loan portfolio.
24. However, Defendants Pearson et al determined a
simultaneous and much more assertive parallel policy whereby, in
those occasional circumstances where a delinquent Hancock
borrower still retained loan collateral sufficient to cover
Hancock’s total outstanding loan balance, Defendants would
selectively and discriminatively foreclose at once on such
adequately secured borrower. This artifice would assure that each
foreclosure Hancock did execute would net for Hancock the full
43a
Appendix E
» and entire amount Hancock claimed as due, including all
+ additionals of penalties, collection costs, Hancock Attorney fees
and escalated interest. And Hancock would contrive thereby a
more solid financial image presented to insurance regulators and to
the public, by recovering in those hand-picked foreclosure
instances the full amounts due Hancock from each foreclosed
borrower.
25. By Defendants’ calculated policy of predatory selective
discriminatory foreclosure only upon borrowers who had
sufficient loan collateral remaining, Hancock could disguise to
regulators and the public the aggrieved state of Hancock’s many
under-collateralized delinquent agribusiness loans.
26. Adopting such predatory and discriminatory selective
foreclosure policy against the plaintiff, despite assurances given at
personal meetings and conversations between plaintiff and each of
the named Defendants, Hancock/Pearson et al determined
immediately to foreclose upon Saval’s two loans and promptly to
fire-sale all of plaintiff’s agricultural property for amounts certain
at least to be sufficient to pay all overstated totals which Hancock
alleged as due from plaintiff.
27. First American Title Company, Hancock’s Trustee,
accordingly commenced formal foreclosure proceedings against
plaintiff’s entire agricultural real estate for the benefit of the lender
Hancock.
28. The formally drawn First Deeds of Trust which secured
Hancock’s two Saval loans expressly from their inception had
included all the mineral, gas and oil rights within the legal
descriptions of these pledged properties.
44a
Appendix E
29. Notwithstanding, the Defendant Title Company, in
breach of its undertaking and its duty owed to plaintiff, chose
expressly to “except” the mineral, gas and oil rights when it
compiled the statutory published descriptions of the properties
being foreclosed, and when the Title Company advertised and
circulated its statutorily required Official Notice of Sale.
30. Statutes of the State of Nevada where these ranches were
located and wherein they were subjected to foreclosure sale require
that the specific properties being foreclosed be particularly
described, (N.R.S. 21.140(c) 2.), which the Defendant Title
Company failed to do.
31. Not only did the Defendant Title Company “except” the
mineral, gas and oil rights although expressly included within the
legal property descriptions of the First Deeds of Trust. It also
aggravated the situation further by adding to the published and
advertised Official Notice of Sale this ambigious language relating
to the minerals, oil and gas deposits: “Said rights forming no part of
this guarantee”.
32. Atall times pertinent and at present, surface gold mining
in northern and eastern Nevada had made Nevada the leading gold
producing area in the Western Hemisphere. United States Court for
the District of Nevada duly took judicial notice of this fact within
the Matter: The United States of America v. A. G. Edwards Jr., et al,
Civil R-86-199 BRT.
33. The Freeport-McMoran Gold Company, the largest gold
mining company in North America, had at all pertinent times
conducted its operations immediately adjacent to plaintiff’s
property, the Saval Ranch. The Company at various times had
expressed great interest in its acquisition of the plaintiff’s ranches.
45a
Appendix E
34. As a direct result of the Defendant Title Company’s
| “exception”, accompanied as it was by this ambigious language in
its advertised Notice of Sale, highest officials of Freeport-
McMoran Gold Company attended the Saval foreclosure and
auction sale but declined to bid, being uncertain from the muddled
phraseology of the Official Notice of Sale what their bid might
actually purchase. The Defendant Title Company had taken no
steps whatever to clarify the situation and to assure that the
foreclosure and auction of plaintiff’s properties might at least be
presented to prospective buyers in a reasonably clear and lucid
context.
35. Defendants Pearson et al, Hancock, Attorney Hawkins/
Law Firm of Hawkins, Rhodes and Sharp, all intimately connected
with the foreclosure proceedings and making their maximal efforts
to ramrod these proceedings along, did not bestir themselves to
correct severe defects within the Official Notice of Sale which
rendered the foreclosure indelibly biased against and damaging to
the plaintiff.
36. Thus, the Defendants each have violated the covenant of
good faith and fair dealing implicit in all contractual undertakings.
Particularly had the Defendant Title Company promised the
plaintiff mortgagor within the specific phraseology of the
applicable Deeds of Trust that, in the event of foreclosure, the Title
Company would make its notices of sale conform to the
requirements of the law and to the Deeds of Trusts’ own covenants.
This the Defendant Title Company totally failed to do.
37. Meantime, the plaintiff was shocked to discover that
Pearson et al/Hancock for then obscure reasons were working
behind the scenes to undermine and destroy plaintiff’s
advantageous commercial relationships and credibility with
46a
Appendix E
plaintiff’s crucial Western-based business and major
governmental agencies — parties who for years had satisfactorily
and with mutual benefit provided vital financing and agricultural
services required for the successful operation of plaintiff’s two
ranches.
38. Pearson et al/Hancock improperly approached plaintiff's
various major financial and governmental business associates and
imparted highly unfavorable, often inaccurate, confidence-
violating statements and divulgences about plaintiff. Pearson et al/
Hancock improperly and unfavorably alleged private and
restricted business information regarding plaintiff and in various
ways were able seriously to prejudice these vital associates and
agencies against the plaintiff. The resulting adverse cumulative
business effect wrought upon plaintiff by the improper subversions
of Pearson et al/Hancock were devastating to the plaintiff, who had
no knowledge of Defendants’ damaging performance until the
harmful effect had been accomplished by them.
39. Pearson et al/Hancock by their improper representations
SO agitated and distressed plaintiff’s cattle herd financing agency,
Production Credit Association, that this large financial entity at
once called plaintiff’s long-standing yet quite solid and secure
million dollar cattle loan and credit line, called and terminated
after Hancock related agitation with no advance notice whatever.
Susbequently, the agitation produced by Pearson/Hancock caused
plaintiff’s various business associates to exhibit unwarranted but
advanced apprehensive and distrustful behavior toward plaintiff,
despite years of prior satisfactory relationships enjoyed by
plaintiff with these colleagues.
40. The intemperate and improper representations made by
Pearson et al/ Hancock led plaintiff’s cattle financing agency even
47a
Appendix E
to believe that plaintiff was secretely withdrawing collateralized
livestock from his ranch and selling these clandestinely at
unaccredited distant cattle markets while pocketing the proceeds
and depriving the cattle lender of his rightful revenues. No such
event ever occurred or was even contemplated, and plaintiff had no
financial need to indulge in any such activity.
41. When plaintiff then found it imperative to confront
Hancock and Pearson et al, Gordon and McElwee with the facts of
their improper conduct to damage plaintiff's advantageous
business relationships with others, Hancock/Pearson et al and
others falsely denied and forswore their knowingly illegal and
improper behavior—then immediately subjected plaintiff to
further punitive treatment as the means to chastise him for having
been so forthright as to call public attention to Pearson et al/
Hancock mischief.
42. Recognizing the certainty and the seriousness of the
impending and scheduled Hancock foreclosure of his total ranch
properties, plaintiff urgently sought a favorable sale of his entire
ranches, immediate proceeds of which sale would then promptly
and fully pay all obligations due to all lenders and as well might
then allow plaintiff some modest remaining amount deriving from
plaintiff’s earlier costly improvements to upgrade these properties.
43. Through -extensive efforts, the plaintiff identified a
motivated Colorado-based buyer, and detailed negotiations went
forward with this party. The complex nature of plaintiff’s ranch
holdings caused these sale negotiations to occupy appreciable
time. With the scheduled Hancock foreclosure now only a few
short weeks away, plaintiff asked his western attorney to contact
Hancock/Pearson et al and respectfully to request that the
scheduled ranch foreclosure be delayed by one month, time
48a
Appendix E
sufficient for the Colorado purchaser to complete the transaction
and for plaintiff to receive from this buyer sufficient sale proceeds
immediately to pay all Hancock and other obligations fully.
44. Under great compulsion to buttress their damaged
account books with any and all loan foreclosures which could
totally cover each entire Hancock obligation, Pearson/Hancock et
al summarily refused the plaintiff his requested one-month delay in
the foreclosure action, although such brief thirty-day delay would
have facilitated Hancock’s total pay-out by the plaintiff.
45. Resultantly, Pearson et al/Hancock were able to paper
over the precarious agitated status of much of their agricultural
lending by their performing such precipitous and predatory
selectively discriminating foreclosures upon loan properties of
plaintiff and of others similarly situated, wherein Hancock each
time recovered all monies due under these specific loans, and
thereby, receiving payment in full, contrived to exhibit a sounder
lender status than actually existed.
46. As Defendants Pearson et al well knew would occur,
Hancock’s forced sale receipts from their foreclosure upon
plaintiff’s two ranches did indeed completely cover all outstanding
amounts due Defendant Hancock.
47. Plaintiff attended the Title Company’s foreclosure sale
and auction of his ranches, and applied formally to Defendant Title
Company Official Rav Peterson to be admitted to the sale as an
accredited bidder on plaintiff’s own ranch properties. The
Defendant Title Company summarily refused to allow or to honor
any bid by plaintiff upon his own properties being forcibly sold.
Consequently, plaintiff was totally powerless to prevent a
devastating fire-sale of his valuable ranch assets.
49a
Appendix E
48. United States of America, holder of both Second Deeds of
Trust from plaintiff, then emerged as the only bidder at the
foreclosure sale, and acquired the two properties as a single parcel
for the distress amount of only $ 1,231,915.60.
49. United States of America then paid Hancock its total
amount allegedly due, some $ 1,150,000.00, and in return acquired
the release of Hancock’s entire interest in both ranch properties.
50. Hancock, fully paid, marked plaintiff’s notes as satisfied
i full, but has refused to return these cancelled and fully satisfied
diocuments to the plaintiff.
51. Among the foreclosure papers then summarily handed to
plaintiff by foreclosing authorities Hancock/Title Company was
aun astonishing bill covering several brief hours of Hancock-related
jegal services, allegedly carried out by Hancock’s Western
Attorney Prince Hawkins of the Defendant Law Firm Hawkins,
Rhodes and Sharp. The plaintiff was shocked to discover that
Defendants Hawkins’ charge to plaintiff for less than one half day
of Hawkins’ Hancock related legal time approached $ 26,000.00.
This startling professional charge entered against plaintiff was
automatically paid to Defendants Hawkins, Rhodes and Sharp by
(Defendant Hancock, paid out of surplus ranch foreclosure
proceeds ordinarily due to plaintiff, an event over which plaintiff
was unable to exercise any direct influence or control.
52. Although severely distraught at the improper, unethical
and predatory performances of each of the above Defendants,
plaintiff immediately sought the help of his Western Attorney in at
least having the vastly inflated Hawkins, Rhodes and Sharp legal
charge ameliorated downward to some more reasonable and
correct figure.
50a
Appendix E
53. Plaintiff’s own Western Counsel proved totally ineffective
and could procure from Defendants Hawkins et al no gesture
whatever toward adjustment, nor even some justification for the
inordinate Hawkins et al charge, doubtlessly resulting from the
closeness and cohesiveness maintained among themselves by most
of the practicing attorneys within this sparsely populated state.
54. Following the foreclosure sale, the plaintiff was ordered
immediately to vacate his entire ranches, forcing him to resort to a
further fire-sale of his entire ranch cattle herd, his extensive
agricultural equipment and machinery, his inventories of supplies
and parts, his fuel and materials, all precipitously dispersed under
the most unfavorable and damaging economic conditions, in
addition to the enormous theft and slippage which were
unavoidably sustained in connection therewith.
55. Just under one year later, the United States sought to
recover a perceived deficiency amount still allegedly due the
second lien holder, to which this applicant under the law found was
not a valid obligation.
56. As direct result of its shoddy management practices and
its failure suitably to maintain the ranch improvements over which
it had control for some three years’ time, the United States during
its tenure of the two ranches and by its imprudent renting practices
caused the entire ranch improvements and terrain to deteriorate
greatly, the total cattle grazing capacity to become vastly reduced
and the entire premises to reach an advanced impoverished state.
57. On January 5, 1988, United States District Court for the
District of Nevada ruled that Defendant Title Company’s original
Notice of Foreclosure had violated the State’s foreclosure statutes,
and that the “exception” of the mineral, oil and gas rights from the
Sla
Appendix E
advertised Lega! Description in the Notice of Sale of the Properties
had materially prejudiced the plaintiff.
58. United States District Court accordingly reversed and
invalidated the entire foreclosure sale because of glaring
improprieties wrongfully committed by the Defendant Title
Company et al, all further complicating the plaintiff’s position,
upon whom the ranches were again thrust, now in their much
impoverished condition and having greatly reduced cattle carrying
capacity and therefore vastly curtailed income generating
capability.
59. Subsequently, United States of America and the plaintiff
reached a full settlement and release agreement in 1989, by which,
upon plaintiff’s very large cash payment to U. S. A., the United
States agreed to transfer back to plaintiff all its interest in the
properties which it had supposedly acquired at the 1985
foreclosure sale of plaintiff’s ranch assets.
60. As a proximate result of Defendant Title Company et al
having conducted grossly negligent actions and breaches of duty
owed to the plaintiff, the plaintiff not only lost the participation at
the foreclosure sale of a viable interested buyer, Freeport-
McMoran Gold Company; plaintiff was improperly barred by Title
Company officials from participating in the auction which might
have avoided the distress-sale price brought at the forced sale of his
ranch properties; and plaintiff as well sustained a variety of
additional provable consequential damages in the amount of no
less than five million dollars.
61. WHEREFORE, the plaintiff requests that judgment be
entered in his favor against each of the Defendants including First
American Title Company, John Hancock Mutual Life Insurance
52a
Appendix E
Company, Defendants Hawkins, Rhodes and Sharp and Attorney
Prince Hawkins, as well against Defendants Pearson, Gordon,
Brown, McElwee, McKiernan and Duncan, in the amount of seven
million dollars, plus treble damages, plus plaintiff’s attorney and
court costs and all appropriate interest, plus other damages which
the Court may deem proper, as provided by applicable statute.
COUNT II
62. The plaintiff A. G. Edwards Jr. reavers and re-alleges
Paragraphs 1. through 61., inclusive, and further avers as follows:
63. The Defendant First American Title Company undertook
and promised the borrower that, in the event of foreclosure, it
would conform to the requirements of the law.
64. The Nevada Revised Statutes require that properties
being foreclosed be particularly described, (N.R.S. 21.140 (c) 2).
Thus, by excepting the mineral, oil and gas rights from the property
description and specifics in its Official Notice of Sale, the
Defendant Title Company et al breached its undertaking to
conform to the requirements of the law and breached as well their
implied warranty to conduct the foreclosure sale in good faith.
65. Attorney Prince Hawkins and the Defendant Law Firm of
Hawkins, Rhodes and Sharp, despite their proximity to the
foreclosure events and their responsibility to supervise all legal
aspects of the forced sale proceedings, equivalently failed their
responsibility to assure that the undertaking conformed to
requirements of the law, and themselves breached their implied
warranty to assure that the foreclosure and sale were conducted in
good faith.
ee
53a
Appendix E
66. Defendants Pearson, Gordon, Brown, McElwee,
McKiernan and Duncan failed their own responsibilities, to assure
that the foreclosure undertaking conformed to the requirements of
law, and these specified Defendants breached their implied
warranties to assure that the foreclosure and sale were conducted in
good faith.
67. Asa proximate result of the deficiencies of performance
cited above on the parts of the Title Company, of Attorney Hawkins
and the Firm Hawkins, Rhodes and Sharp, and of Defendants
Pearson, Gordon, Brown, McElwee, McKiernan and Duncan,
wherein these parties each breached their express and implied
warranties of good faith and adherence to prevailing law, the
plaintiff not only lost the participation at the foreclosure sale of a
viable, able and interested bidder, but sustained as well a variety of
other provable consequential damages in the amount of no less
than three million dollars.
68. WHEREFORE, the plaintiff respectfully prays for
judgment against each of the above enumerated Defendants for the
full cited damages herein described, with treble damages as
provided under 18 U.S.C. Sections 1961 — 1968, plus all interests
and costs of this Action, plus other awards which the Court may
deem proper, together with any and all damages awardable under
Massachusetts General Laws and under Nevada Revised Statutes
relating to Consumer Fraud and to Deceptive Trade Practices
committed by each of the above cited Defendants.
PLAINTIFF RESPECTFULLY REQUESTS TRIAL BY
JURY ON ALL POINTS SO TRIABLE.
s/ A.G. Edwards Jr.
A. G. Edwards Jr., plaintiff
May 22, 1992
54a
APPENDIX F — MOTION TO DISMISS OR TRANSFER
OF PRINCE A. HAWKINS
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Civil Action No. 91-346-S
A.G. EDWARDS, JR.,
Plaintiff
v.
FIRST AMERICAN TITLE COMPANY, ETAL.,
Defendants
MOTION TO DISMISS OR TRANSFER
Prince A. Hawkins, individually and on behalf of the law firm
of Hawkins, Rhodes & Sharp (hereafter collectively referred to as
“Hawkins”), by his attorneys, Nelson, Kinder, Mosseau & Gordon,
P.C., moves the Court as follows:
1. To dismiss the action, pursuant to F.R.Civ.P. 12(b)(2), for
lack of personal jurisdiction over Hawkins, because the claims
asserted do not arise from any of the acts enumerated in RSA
510:4, and Hawkins has no “minimum contacts” with the State of
New Hampshire to justify the exercise of this Court’s jurisdiction
over Hawkins.
2. To dismiss the action for failure to state a claim, pursuant to
F.R.Civ.P. 12(b)(6), in that the First Amended Complaint and
plaintiff’s admissions on the record make clear that plaintiff’s
asserted causes of action are barred by the applicable statute of
limitations.
55a
Appendix F
3. To dismiss this action on the ground of improper venue
under 28 U.S.C. § 1391(a) and (b) and § 1406(a), or, in the
alternative, to transfer the action, pursuant to 28 U.S.C. § 1404(a),
to Nevada, where the events occurred, where the witnesses are
located, where the property is located, and where Nevada law may
be applied by a Nevada court.
4. If the case is not dismissed, to transfer this case to to
Nevada, because the transaction occurred in Nevada, the
documents and witnesses are located in Nevada, and Nevada law
will govern.
5. To award Hawkins his costs and fees under F.R.Civ.P. 11
for asserting claims against Hawkins where the lack of personal
jurisdiction is clear; for asserting a claim under the Racketeer
Influenced and Corrupt Organization Act (“RICO”) without any
factual basis; and for asserting claims which are patently time
barred.
6. Hawkins submits the Affidavit of Prince A. Hawkins, Esq.,
and a Memorandum of Law in support of this Motion to Dismiss.
7. Pursuant to Local Rule 11, counsel for Hawkins states that
she attempted to obtain the concurrence of Mr. Edwards in this
motion, but Mr. Edwards did not return her telephone call.
WHEREFORE, defendants Prince A. Hawkins and Hawkins,
Rhodes & Sharp respectfully request this Honorable Court:
A. Todismiss this action with prejudice;
B. Inthealternative, to transfer the action to Nevada; and
56a
Appendix F
C. To grant such other and further relief as this Court deems
just and proper, including costs and fees under F.R.Civ.P.
11.
Respectfully submitted,
PRINCEA. HAWKINS,
By his Attorneys:
NELSON, KINDER, MOSSEAU & GORDON, PC
Dated: 12-28-92 By: s/ Martha V. Gordon
Martha V. Gordon, Esquire - #963
99 Middle Street
P.O. Box 1510
Manchester, NH 03105
(603) 647-1800
CERTIFICATE OF SERVICE
I hereby certify that a copy. of the foregoing Motion to
Dismiss or Transfer was this day forwarded, postage prepaid, to A.
Greer Edwards, Jr. (pro se), P.O. Box 208, R.R. #1, Wilton Center,
NH 03086; and to James E. Morris, Esq., Orr & Reno, P.A., P.O.
Box 709, Concord, NH 03302-0709.
s/ Martha V. Gordon
Martha V. Gordon, Esquire
57a
APPENDIX G — MOTION TO DISMISS OR TRANSFER
VENUE OF DEFENDANT JOHN HANCOCK MUTUAL
LIFE INSURANCE COMPANY
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF NEW HAMPSHIRE
CIVILACTION NO. C-91-346-JD
A.G. EDWARDS, JR..,
Plaintiff
v.
FIRST AMERICAN TITLE COMPANY,
JOHN HANCOCK MUTUAL LIFE
INSURANCE COMPANY,
PRINCE HAWKINS,
HAROLD PEARSON, III,
WILLIAM GORDON,
JOHN G. McELWEE,
STEVEN BROWN,
THOMAS L. McKIERNAN, and
ARTHUR DUNCAN,
Defendants
MOTION TO DISMISS OR TRANSFER VENUE OF
DEFENDANT JOHN HANCOCK MUTUAL LIFE
INSURANCE COMPANY
Defendant John Hancock Mutual Life Insurance Company
(“John Hancock”) moves to dismiss Plaintiff’s First Amended
Complaint, or transfer venue, to the District of Nevada, on the
following grounds:
58a
Appendix G
1. Plaintiff’s claims against John Hancock should be
dismissed because plaintiff has already commenced a prior
pending action against John Hancock in the United States District
Court for the District of Massachusetts, Civil Action No. 91-
10237-K, which action is still pending before Judge Robert E.
Keeton in the District of Massachusetts;
2. Plaintiff’s claims against John Hancock are barred under
the doctrine of res judicata; and
3. Plaintiff’s claims against John Hancock are barred under
the applicable statutes of limitation.
4. In the alternative, Plaintiff’s claims should be transferred
under 28 U.S.C. §§ 1404(a) to the District of Nevada.
5. Defendant has made a good faith attempt to obtain
concurrence in the relief sought herein.
6. In support of this motion, John Hancock submits its
Memorandum of Law which is filed herewith.
REQUEST FOR ORAL ARGUMENT
Defendant John Hancock believes that oral argument may
assist the Court and therefore requests oral argument.
Respectfully submitted,
JOHN HANCOK MUTUAL LIFE INSURANCE
COMPANY
59a
Appendix G
By Its Attorneys,
ORR & RENO
One Eagle Square
P.O. Box 709
Concord, NH 03302-0709
(603) 224-2381
By: s/ Richard B. Couser
Richard B. Couser #519
Of counsel:
Edward S. Rooney, Jr.
LYNE, WOODWORTH & EVARTS
600 Atlantic Avenue
Boston, MA 02210
(617) 523-6655
CERTIFICATION
I hereby certify that a copy of the foregoing pleading has this
date been forwarded to A.G. Edwards, Jr., Box 208, RR #1,
Bennington Battle Trail, Wilton Center, NH 03086.
s/ Richard B. Couser
Richard B. Couser #519
60a
APPENDIX H — MOTION TO DISMISS OF
DEFENDANTS HAROLD PEARSON, III, WILLIAM
GORDON, JOHN G. McELWEE, STEVEN BROWN,
THOMAS L. McKIERNAN AND ARTHUR DUNCAN
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF NEW HAMPSHIRE
CIVILACTION NO. C-91-346-JD
A.G. EDWARDS, JR.,
Plaintiff
Vv.
FIRST AMERICAN TITLE COMPANY,
JOHN HANCOCK MUTUAL LIFE
INSURANCE COMPANY,
PRINCE HAWKINS,
HAROLD PEARSON, III,
WILLIAM GORDON,
JOHN G. McELWEE,
STEVEN BROWN,
THOMAS L. McKIERNAN, and
ARTHUR DUNCAN,
Defendants
MOTION TO DISMISS OF DEFENDANTS HAROLD
PEARSON, III, WILLIAM GORDON, JOHN G. McELWEE,
STEVEN BROWN THOMAS L. McKIERNAN and
ARTHUR DUNCAN
Defendants Harold Pearson, III, William Gordon, John G.
6la
Appendix H
McElwee, Steven Brown, Thomas L. McKiernan and Arthur
Duncan move to dismiss Plaintiff’s First Amended Complaint on
the following grounds:
1. Plaintiff’s claims should be dismissed under Federal Rule
12(b)(2) for lack of jurisdiction over the person of the defendants;
2. Plaintiff’s claims should be dismissed under Federal Rule
12(b)(5) for insufficiency of service of process on the defendants;
3. Plaintiff’s claims are barred under the applicable statutes
of limitation; and
4. Plaintiff’s claims should be dismissed, or in the alternative
transferred, under Federal Rule 12(b)(3) for improper venue.
5. The moving parties have made a good faith attempt to
obtain concurrence in the relief sought herein.
6. In support of this motion, defendants submit their
Memorandum of Law which is filed herewith.
REQUEST FOR ORALARGUMENT
Defendants believe that oral argument may assist the Court
and therefore requests oral argument.
Respectfully submitted,
HAROLD PEARSON III,
WILLIAM GORDON,
JOHN G. McELWEE,
STEVEN BROWN,
62a
Appendix H ¢
THOMAS McKIERNAN AND ’
ARTHUR DUNCAN E
By Their Attorneys, a
ORR & RENO 4
One Eagle Square ;
P.O. Box 709 4
Concord, NH 03302-0709 e
(603) 224-2381 "
By:s/ Richard B. Couser a
Richard B. Couser #519 e
Of counsel: f
Edward S. Rooney, Jr. (
LYNE, WOODWORTH & EVARTS 4
600 Atlantic Avenue 4
Boston, MA 02210 4
(617) 523-6655 ee
CERTIFICATION i
I hereby certify that a copy of the foregoing pleading has this
date been forwarded to A.G. Edwards, Jr., Box 208, RR #1,
Bennington Battle Trail, Wilton Center, NH 03086.
s/ Richard B. Couser
Richard B. Couser #519
4
y
a
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