Summary
In Malmros v. Jones, 2004 U.S. Dist. LEXIS 4371 (E.D. Pa. Feb. 27, 2004), the plaintiff brought an action alleging breach of fiduciary duty and self dealing against the defendant in her capacity as a former director of the corporation of which plaintiff was a shareholder and former director.
Summary of this case from STILWELL VALUE PARTNERS I v. PRUDENTIAL MUTUAL HOLDOpinion
CIVIL ACTION NO. 03-3489
February 27, 2004
MEMORANDUM
I. INTRODUCTION
Plaintiff pro se Mark K. Malmros instituted this action on June 5, 2003, against defendant Ruth Jones in her capacity as a former director of AzurTec, Inc. alleging breach of fiduciary duty and self dealing. Before me now are defendant's motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) and plaintiff's motion for leave to amend his complaint under Federal Rule of Civil Procedure 15(a). For the reasons stated below I will grant defendant's motion for judgment on the pleadings and deny plaintiffs motion for leave to amend.
II. BACKGROUND
AzurTec, Inc. is a biomedical research company that was incorporated in Pennsylvania and began operations in December 1999. Plaintiff, defendant, Dr. Pier Cipriani and William S. Collins, III, founded AzurTec and served on the corporation's initial board of directors. Plaintiff served as AzurTec's Secretary and Treasurer. In October 2002, plaintiff was removed from the board of directors of AzurTec, and was terminated from his employment with AzurTec for cause. Defendant was concurrently removed as a director of AzurTec.
Plaintiff asserts that the chain of events that eventually led to his termination and removal from AzurTec and its board began in May 2002 following Cipriani's alleged offer to resign during a dispute involving the payment of checks to certain shareholders and investment advisors of AzurTec. It is not clear how this dispute relates to defendant. According to plaintiff, defendant's involvement in the chain of events began sometime before September 21, 2002 when she participated in a secret plan of reorganization with Cipriani and Richard Hansen, a shareholder and investment adviser to AzurTec. Plaintiff asserts that the plan called for the removal of all directors of AzurTec except for Cipriani. Plaintiff alleges defendant then resigned as an officer and employee of AzurTec on September 21, 2002 and that she was offered continued employment as a consultant in exchange for her resignation.
Plaintiff asserts that at a September 27, 2002 meeting, Hansen asked that he and Collins resign. Plaintiff declined. He alleges that during an October 1, 2002 meeting among himself, Hansen and Cipriani he then made a request to call a meeting of AzurTec's board of directors. Plaintiff claims Cipriani refused this request. He does not allege that defendant was involved in these meetings or discussions.
Plaintiff further asserts that between October 1, 2002 and October 8, 2002 defendant refused his request that she participate in the call for a meeting of the board of directors as required under the bylaws. Defendant asserts that there is no provision in the bylaws that would have required her to participate in a call for a board of directors meeting at plaintiffs' request. Article 14 of the bylaws states that a special meeting of the board could only be called by the President of AzurTec, the Chairman of the Board or the Secretary "upon the written request of a majority of directors in office." (Def.'s Mem. Mot. J. on
Pleadings, Ex. C at 9). Plaintiff also claims that on October 2, 2002, defendant knew that Cipriani contemplated the execution of a notice of a "written consent in lieu of a shareholders' meeting for the purpose of reconstitution of the Board of Directors of AzurTec." Plaintiff asserts that despite her knowledge, defendant did not inform him of the contemplated notice. (Id., Ex. A. at ¶¶ 22-24). The notice, addressed to the shareholders of AzurTec, was issued on or about October 8, 2002. It explained that actions required or allowed to be taken at shareholders meetings could also be taken without a meeting upon a written consent of the shareholders "entitled to cast at least the minimum number of votes that would be necessary to authorize the action at a meeting at which all shareholders entitled to vote thereon were present and voting." (Id., Ex. D). The "Written Consent of Shareholders of AzurTec" was attached to the notice and, together with the requisite signatures from shareholders, resolved that, upon ten days notice, Cipriani, O'Donnell, Chambers and Sukonic were designated to constitute the board of directors, thus removing plaintiff and defendant from the board. (Id. Ex. E).
Plaintiff asserts that both he and Collins were terminated "for cause" by Cipriani on October 23, 2002 and that they were thereafter denied access to AzurTec's books and records. He does not assert that defendant terminated him or that she participated in denying him access to company books. Plaintiff contends, however, that defendant's involvement in the foregoing chain of events caused him to sustain personal losses for which she is individually liable.
Plaintiff has brought three lawsuits against AzurTec in the Bucks County Court of Common Pleas: 1) Mark Malmros, et al. v. AzurTec, Inc. and Cipriani, Court of Common Pleas, Bucks County, Pa., No. 2002-08209 (seeking the appointment of a custodian for AzurTec and various damages); 2) Mark Malmros, et al. v. AzurTec, Inc., Court of Common Pleas, Bucks County, Pa., No. 2002-08210 (seeking money damages directly from AzurTec resulting from their alleged wrongful termination); and 3) Application for Judicial Supervision of Corporate Action of William S. Collins and Mark K. Malmros, applicants, Court of Common Pleas, Bucks County, Pa., No. 2003-03328-16-6 (seeking judicial review of the written consent).
AzurTec has filed a counterclaim in this action.
In his motion to amend, plaintiff seeks to include a new claim for conspiracy against defendant alleging that she conspired with Cipriani and other AzurTec shareholders to breach plaintiff's employment contract by not participating in a call for a board of directors meeting. Plaintiff also seeks to include allegations that defendant's counsel, Stradley, Ronan, Stevens Young, "aided abetted, and conspired with Cipriani, Jones and certain shareholders in illegal and improper acts and continues to conspire in the abuse of process to prevent Plaintiff from bringing [certain] facts before the Court for a fair and equitable hearing." (Pl's. Proposed Am. Compl. at ¶ 54).
III. STANDARD FOR JUDGMENT ON THE PLEADINGS
A motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) is considered under the same standard as a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Regalbuto v. City of Philadelphia, 937 F. Supp. 374, 376-77 (E.D. Pa. 1995). In deciding a rule 12(c) motion, I must therefore view the facts and inferences to be drawn from the pleadings in the light most favorable to the non-moving party. Janney Montgomery Scott, Inc. v. Shepard Niles, Inc., 11 F.3d 399, 406 (3d Cir. 1993) (citation omitted). Judgment will be granted under Rule 12(c) only "if it is clearly established that no material issue of fact remains to be resolved and that the movant is entitled to judgment as a matter of law." Institute for Scientific Information. Inc. v. Gordon and Breach. Science Publishers. Inc., 931 F.2d 1002, 1005 (3d Cir. 1991). citing Jablonski v. Pan American World Airways, 863 F.2d 289, 290-91 (3d Cir. 1988).See also Travelers Indemnity Co. v. Stedman, 895 F. Supp. 742, 745-46 (E.D. Pa. 1995) (noting that a court may not grant judgment on the pleadings unless it appears beyond doubt that plaintiffs can prove no set of facts in support of their claim which would entitle them to relief) (citation omitted).
IV. DISCUSSION
Plaintiff lacks standing to pursue his claims against defendant in a direct action under the Pennsylvania Business Corporations Law (BCL). An individual may not bring a direct action against a corporate director predicated upon an alleged breach of corporate fiduciary duty. Under 15 Pa. C.S.A. Section 1717, enacted when the Pennsylvania legislature amended the BCL in 1990, a member of a corporate board of directors has a fiduciary duty only to the corporation and not to individuals.
The duty of the Board of Directors, committees of the Board and individual directors under section 1712 (relating to standard of care and justifiable reliance) is solely to the business corporation and may be enforced directly by the corporation, or may be enforced by a shareholder, as such, by an action in the right of the corporation and may not be enforced directly by a shareholder or by any other person or group.15 Pa.C.S.A. § 1717 (emphasis added). The 1990 amendments were enacted in part to give boards of directors greater discretion in exercising their duties. See, e.g., BTZ, 803 F. Supp. at 1022.
Several cases support this application of Section 1717. In AMP Incorporated v. Allied Signal. Inc. (In re AMP Shareholder Litigation), No. 98-4405, 98-4058, 98-4109, 1998 WL 778348, at *12 (E.D. Pa. Oct. 8, 1998), the Court held that "[a]s the shareholders group is directly challenging whether the AMP Directors breached their fiduciary duty to the corporation, its request for preliminary injunction is hereby denied for lack of standing." The plaintiff shareholders had brought a claim for breach of fiduciary duties against members of the AMP board, challenging their decision making processes and their decision to accept a tender offer from Allied-Signal. In Hubner v. Schoonmaker, No. 89-3400, 1991 WL 60594 (E.D. Pa. April 9, 1991), shareholders of two corporations brought an individual action against a director of both corporations alleging the director had breached fiduciary duties to them by intentionally mismanaging the corporations for his own benefit. The Court held that the director had a duty only to the corporation and the plaintiffs therefore had no standing, explaining that "a stockholder cannot, as an individual as distinguished from a representative of the corporation, sue Directors or other corporate officers for mismanagement, negligence or the like." Id. at *3. Finally, in BTZ, Inc. v. Grove, 803 F. Supp. 1019, 1022 (M.D. Pa. 1992), a class of shareholder plaintiffs brought a direct action against certain corporate directors, alleging they breached their fiduciary duty by enacting certain "golden parachute" stock option plans. The Court held that plaintiffs had no standing because to the extent their claims were viable they were claims that belonged to the corporation and not to the plaintiffs as individuals.
Plaintiff's complaint asserts two claims, a claim for breach of fiduciary duty and a claim for willful misconduct and self-dealing, both of which appear to apply to defendant in her role as a director of AzurTec. Indeed, in plaintiff's surreply brief, he states:
Plaintiff's claim against Defendant Jones for "breach of fiduciary duty" is for a
breach of that duty to the corporation which resulted in direct personal injury to Plaintiff as a shareholder and employee in his individual capacity. The Plaintiff is not stating a claim that the Defendant owed a duty to the Plaintiff in his individual capacity; on the contrary it is expressly the Defendant's breach of duty to the corporation that resulted in injury to the Plaintiff on which the complaint is made.
(Pl.'s. Surrep. Br. to D's. Repl. Br. at 2) (emphasis in original). Since plaintiff's suit is intended to rectify an alleged breach of defendant's fiduciary duty to the corporation, Section 1717 provides that plaintiff does not have standing to bring a direct suit.
Plaintiff concedes that "it is clear that this is not a derivative action." (Pl's. Br. in Opp. to Mot. for J. on PL 2).
Although he seeks to recover under the fiduciary duty provided by the Pennsylvania BCL, plaintiff asserts that Section 1717 is not applicable to his suit. He claims that he has standing because he is not seeking to recover damages on behalf of AzurTec, but instead seeks to recover damages from Jones for actions which have deprived him "of the fair compensatory and equity value expected of his participation in the company. . . ." (Pl's. Br. in Opp. to Mot. for J. on PL 1-2).
Prior to the 1990 amendments to the Pennsylvania BCL, some courts had "carved out an exception, permitting a cause of action in favor of the individual shareholder, where the alleged wrong violates a duty owed directly to the shareholder. . . . Thus there must be a duty owed to the shareholder personally." Cole v. Ford Motor Co., 566 F. Supp. 558, 569 (W.D. Pa. 1983) (citations omitted). Plaintiff cites to one of these cases, Wolf v. Young Supply Co., 19 Pa. D. C. 2d 404 (Del. Cy. C.P. 1959) in support of his contention that he has standing to sue defendant directly. Wolf states that
where there is a breach of fiduciary duty which the directors, officers, or majority shareholders owe to the shareholder or to the majority shareholders as such, as distinguished from the breach of a duty owed to the corporation, the shareholder injured by such a breach has a direct personal cause of action.Id. at 408. Wolf allowed direct shareholder actions to rectify alleged corporate wrongs that targeted a specific shareholder, such as actions "[t]o enforce his right to inspect the corporate books . . . or where other shareholders carry out a conspiracy to cause a pecuniary injury tp the particular plaintiff shareholder." Id.
Plaintiff also cites to Simms v. Exeter Architectural Prods., Inc., 868 F. Supp. 677 (E.D. Pa. 1994), decided after the clarification of standing and its limitations in the 1990 amendments to the BCL, to support his contention that Section 1717 does not apply to preclude his suit against defendant. Simms stated that "[a] shareholder may however, bring an a action against a corporation and others when the injury is one to the plaintiff as a shareholder in his individual capacity, and not to the corporation." Id. at 681,citing Fishkin v. Hi-Acres, Inc., 341 A.2d 95 (Pa. 1975). InSimms, the plaintiff claimed "that he was terminated, restricted from access to records, and prevented from selling shares at their true value. . . ." Simms, 868 F. Supp. at 682.Simms, however, was not decided under Section 1717 as the alleged duty of the corporate directors was based on a contract (a shareholder's Buy-Sell agreement) and not the fiduciary duty provided by the Pennsylvania BCL under which Malmros seeks to recover.
Although decided after the 1990 amendments to the Pennsylvania BCL, the decision in Simms cites only to cases decided before 1990 in support of its decision that plaintiff could bring an action against a corporation in his individual capacity.
Even if Wolf and Simms are applicable here, in order to bring his suit as a direct action and not as a derivative action plaintiff must establish that he can prevail without showing an injury or breach of duty to the corporation, i.e., that the injury to him was "distinct" from any injury to AzurTec. See, e.g., Simms, 868 F. Supp. at 681; Wolf, 19 Pa. D. C. 2d at 408. Plaintiff has not done so. Indeed, he explains, "Plaintiff need not contend that Defendant's beach of fiduciary duty was to Plaintiff as an individual, her breach of duty to the corporation was clearly sufficient to cause direct and personal injury to the plaintiff." (Pl's. Surrep. Br. to D's. Repl. Br. at 4). In the complaint, plaintiffs allegations include that defendant's
failure to act on her knowledge and information directly facilitated illegal and improper corporate actions; . . . the disruption of proper procedural corporate governance under Azurtec bylaws. . . . [and] directly led to the loss of reputation of the company as an investment opportunity and its inability to raise capital under fair and equitable terms for the shareholders. . . ."
(PL's Compl. at 4). Because plaintiff has not alleged that defendant's alleged breach of fiduciary duty and self-dealing uniquely injured him and not the corporation, he does not have standing to pursue his claims in an action against defendant. I will therefore grant judgment on the pleadings in favor of defendant pursuant to Rule 12(c).
V. STANDARD FOR MOTION TO AMEND
With respect to the requested amendments, Federal Rule of Civil Procedure 15(a) provides in part,
A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served. . . . Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.
Unless there is a showing of undue delay, repeated failure to cure the deficiencies by amendments previously allowed, bad faith or dilatory motive on the part of a movant, undue prejudice to the opposing party by virtue of allowance of the amendment, or futility of the amendment, leave to amend is usually freely granted. See, e.g., Wasau Underwriters Insurance Co. v. Shisler, 190 F.R.D. 341, 342 (E.D. Pa. 1999) (citations omitted); Agostino Ferrari, S.p.A. v. Antonacci, 858 F. Supp. 478, 490 (E.D. Pa. 1994).
"Futility of amendment is shown when a claim is not accompanied by a showing of plausibility sufficient to present a triable issue."Cooper v. Ficarra, NO. 96-7520, 1997 U.S. Dist. LEXIS 14217, at *9 (E.D. Pa. September 12, 1997). citing Harrison Beverage Co. v. Dribeck Importers. Inc., 133 F.R.D. 463 (D.N.J. 1990). Any newly asserted claim must "appear to be sufficiently well-grounded in fact or law that it is not a frivolous pursuit." Cooper, 1997 U.S. Dist. LEXIS 14217, at *9-10 (citation omitted). I "may properly deny leave to amend where the amendment would not withstand a motion to dismiss." Massarksy v. General Motors Corporation, 706 F.2d 11, 125 (3d Cir. 1983).
VI. DISCUSSION
Defendants assert that plaintiff's proposed addition of a civil conspiracy claim is futile. I agree and will deny plaintiff's request for leave to amend. Under Pennsylvania law
[a] claim for civil conspiracy has three essential elements: (i) two or more persons; (ii) combined or agreed; (iii) with the intent to do an unlawful act or to do an otherwise lawful act by unlawful means. Furthermore, proof of malice is required in a successful conspiracy claim. It is also clear that since liability for civil conspiracy depends on the performance of some underlying tortious act, the conspiracy is not independently actionable; rather it is a means for establishing vicarious liability for the underlying tort.Levin v. Upper Makefield Township, No. 99-CV-5313, 2003 WL 21652301, at *11 (E.D. Pa. Feb. 25, 2003) (citations omitted). Plaintiff alleges defendant combined with the other AzurTec board members to oust him unlawfully from the corporation's board of directors thereby breaching plaintiffs employment contract. (Pl's Proposed Am. Compl. ¶ 56-58).
"Under Pennsylvania law, a corporation cannot conspire with itself or with its agents when they are acting on behalf of the corporation. A single entity cannot conspire with itself, and similarly, agents of a single entity cannot conspire among themselves." Fox, v. Keystone Turf Club, No. 97-1424, 1997 WL 793590, at *2 (E.D. Pa. Dec. 4, 1997). See also. General Refractories Co. v. Fireman's Fund Ins. Co., 337 F.3d 297, 313 (3d Cir. 2003); Mill Run Assocs. v. Locke Prop. Co., 282 F. Supp.2d 278, 294 (E.D. Pa. 2003); Anbar v. Leahan No. 97-CV-l 138, 1998 WL 314691, at *6 (E.D. Pa. June 11, 1998). "A corporation can conspire with its agents or employees if they are acting for personal reasons and outside of their roles as employees or agents of the corporation." Jones v. Johnson Johnson, No. 94-7473, 1997 WL 549995, at *13 (E.D. Pa. Aug. 22, 1997).
In his motion to amend, plaintiff alleges defendant was involved in a conspiracy with AzurTec's president, Cipriani, to remove plaintiff from the corporate board. Plaintiff does not allege that defendant's actions were "unconnected" to her role as a director of AzurTec. Indeed, plaintiff's claim hinges on defendant's alleged breach of her fiduciary duties as a director. The actions plaintiff has called into question in his original complaint and in his amended complaint (i.e., defendant's failure to participate in a call for a board of directors meeting, her failure to resign as a director, and her failure to advise plaintiff of the written consent) clearly involve decisions made by defendant in the scope of her responsibilities as a director. Therefore under the intracorporate conspiracy doctrine plaintiff has not adequately pled that defendant engaged in a conspiracy with other members of AzurTec.
As applied to the attorney-client relationship, the intracorporate conspiracy doctrine also precludes plaintiff's allegations that defendant's law firm, Stradley, Ronon, Stevens Young, participated in a conspiracy. Under Pennsylvania law, where an attorney acts within the attorney-client relationship, he cannot be considered a conspirator. See General Refractories, 337 F.3d at 312-14:Heffernan v. Hunter, 189 F.3d 405, 413-14 (3d Cir. 1999). "The mere fact that attorneys have mixed motives, such as enhancing their reputation by aggressive representation, does not remove their conduct from the scope of the agency." General Refractories, 337 F.3d at 313. Unless an attorney acts "for his sole personal benefit," the intracorporate conspiracy doctrine applies. Id.
Despite plaintiff's allegation that Stradley assisted AzurTec in procuring the purportedly improper written consent, he has not alleged that Stradley acted outside of its representation of Cipriani and AzurTec for the firm's sole personal benefit. Therefore Stradley cannot be implicated in the alleged conspiracy.
Further, in the tort and conspiracy contexts, a corporate officer can only be liable for actions taken by others in the corporation if the officer took an active role in the allegedly tortious conduct. See, e.g., Harris v. NGK Metals Corp., No. 03-1102, 2003 WL 21294996, at *2 (E.D. Pa. May 5, 2003). "Under the participation theory, `a corporate officer can be held liable for "misfeasance," i.e., the improper performance of an act, but not for "mere nonfeasance," i.e., the omission of an act which a person ought to do.'" Bethea v. Bristol Lodge Corp., No. 01-612, 2002 WL 31859434, at *15 (E.D. Pa. Dec. 18, 2002). citing Brindley v. Woodland Village Restaurant, 652 A.2d 865 (Pa.Super. 1995).
Plaintiff alleges defendant did not participate in a board of director's meeting at his request, that she would not resign as a director of AzurTec at plaintiffs request and that she did not immediately inform him of the information in the written consent. At most his allegations amount to defendant's failure to act where she may have had a duty to act. Defendant's activities do not constitute a deliberate determination to participate in tortious conduct. She did not take an active role in the tortious conduct alleged by plaintiff merely by failing to comply with his requests. Defendant therefore cannot be found liable for conspiracy.
ORDER
AND NOW, this day of February 2004, after consideration of defendant's motion for judgment on the pleadings and plaintiff's motion for leave to file an amended complaint and all responses thereto, it is hereby ORDERED that defendant's motion is for judgment on the pleadings is GRANTED and the complaint is DISMISSED. Plaintiff's motion for leave to file an amended complaint is DENIED.