In a one-count complaint filed November 3, 1969,
plaintiffs predicated defendant's liability upon alleged violations of the Securities Exchange Act of 1934
and the Commodities Exchange Act of 1934.
In support of their theories of recovery, plaintiffs alleged that the business activities of Sicherman and Bache were so intertwined that Bache should bear the responsibility for any losses caused by Sicherman's fraudulent schemes.
With respect to Sicherman, plaintiffs charged that he "systematically, fraudulently, and regularly embezzled and otherwise stole the monies of the plaintiffs and other members of the plaintiffs' class of customers . . ." The facts with regard to Bache are summarized in my Memorandum and Order of September 27, 1973.
That Memorandum and Order granted defendant's motion to dismiss for lack of jurisdiction over the subject matter under the Securities and Exchange Act of 1934, but denied defendant's motion to dismiss for failure to state a claim for relief under the Commodities Exchange Act of 1934. Plaintiffs now move for an entry of final judgment against themselves and an express determination that there is no just reason for delay in order that they might perfect an appeal under Rule 54, Fed.R.Civ.P.
The difficulty presented by plaintiffs' motion lies in determining the parameters of a claim. Prior to the 1946 amendment to Rule 54(b), it was held that "the Rules make it clear that it is differing occurrences or transactions which form the basis of separate units of judicial action." Reeves v. Beardall, 316 U.S. 283, 285, 62 S. Ct. 1085, 1087, 86 L. Ed. 1478 (1942). While the approach taken in Reeves has been seriously questioned in light of the deletion of the "occurrence or transaction" language from Rule 54, Cold Metal Process Co. v. United Engineering & Foundry Co., 351 U.S. 445, 452, 76 S. Ct. 904, 100 L. Ed. 1311 (1956); Campbell v. Westmoreland Farm, Inc., 403 F.2d 939, 941 n. 3 (2d Cir. 1968); it has not been entirely repudiated, Rabekoff v. Lazere & Co., 323 F.2d 865, 866 (2d Cir. 1963); RePass v. Vreeland, 357 F.2d 801, 805 n. 4 (3d Cir. 1966); Town of Clarksville, Va. v. United States, 198 F.2d 238, 240 (4th Cir. 1952). Although the basis of liability in this action arises out of a single transaction or occurrence, I need not rest my decision solely on the authority of Reeves, supra. In RePass v. Vreeland, 357 F.2d 801 (3d Cir. 1966), allegations that defendant attorneys were negligent in (1) allowing a statute of limitations to expire before commencement of suit and in (2) negligently failing to inform plaintiff of the running of the statute, were held to constitute a single claim attired in two theories of negligence. Also, in Rabekoff v. Lazere & Co., 323 F.2d 865 (2d Cir. 1963), the Court failed to find more than one claim where a trustee in bankruptcy sued to recover a preferential transfer under both federal and state law. "[A] complaint must do more than simply state alternate legal theories to set out multiple claims for relief." Rabekoff, supra, at 866. See also Backus Plywood Corp. v. Commercial Decal, Inc., 317 F.2d 339 (2d Cir. 1963); McNellis v. Merchants National Bank and Trust Co. of Syracuse, 385 F.2d 916 (2d Cir. 1967); and cf. Campbell v. Westmoreland Farm, Inc., 403 F.2d 939 (2d Cir. 1968); Rieser v. Baltimore and Ohio Railroad Company, 224 F.2d 198 (2d Cir. 1955). From a reading of the complaint, I am persuaded that this action arises out of a single "aggregate of operative facts", McNellis, supra, at 917, presented under different legal theories, RePass, supra, which may not be separately enforced, Campbell, supra, and for which only one recovery would be allowed, Rabekoff, supra.