221 N.J. Super. 169 | N.J. Super. Ct. App. Div. | 1987
The opinion of the court was delivered by
On July 2, 1985, the State of New Jersey and James McLelland Smith, Chief of the Bureau of Securities, brought an action seeking, inter alia, injunctive relief and the appointment of a receiver pursuant to the New Jersey Uniform Securities Law, N.J.S.A. 49:3-47 et seq., against defendants Kobrin Securities, Inc. (KSI) and the following individual defendants: Barrett R. Kobrin (B. Kobrin), president, director and chief executive officer of KSI; Richard L. Kobrin (R. Kobrin), secretary and agent of KSI; Warren Sandy, chief financial officer and compliance officer of KSI; Armand DeAngelis, agent and vice president of KSI; Robert R. Fitzsimmons, agent and trader of KSI; Lawrence Repace, agent of KSI; Arden Brown, vice president, secretary and shareholder of KSI from August of 1981 to March of 1984; Leonard Berman, compliance officer and a financial principle of KSI from January of 1983 to March of 1984; and Peter Calcutta, agent and trader of KSI.
On August 1, 1985, Judge Skillman preliminarily enjoined KSI, B. Kobrin, and DeAngelis from engaging in the securities business in this State. Plaintiffs’ application for a preliminary injunction against defendants Sandy, R. Kobrin, Fitzsimmons, Repace, Brown, Berman and Calcutta was denied. Because of the appointment of a trustee in bankruptcy (In the Matter of
On April 16, 1987 a State Grand Jury returned indictments against DeAngelis, B. Kobrin and KSI, asserting twenty-one counts, varying as to each defendant, concerning the unlawful offer, sale or purchase of securities and the misapplication of entrusted property.
Following a case conference, Judge Bachman ordered the within civil proceeding placed on the inactive list as to DeAngelis and B. Kobrin on the grounds that the only way defendants could defend themselves in the civil action would be by waiving their Fifth Amendment privilege.
Defendants B. Kobrin and DeAngelis counter by claiming that (1) to proceed in one forum at a time is most efficient; (2) under the trial court’s order, the State may move to sever the case and proceed against certain defendants individually; (3) any delay was caused by the State;
Other defendants assert that discovery vital to the defense of each is hampered by the lack of available testimony from B. Kobrin and DeAngelis and that each defense depends on defendant’s ability to establish that defendant is secondarily liable, if at all, for the acts of co-defendants, particularly B. Kobrin and DeAngelis. Moreover, a trial without these two defendants increases the probability that other defendants will be burdened with adverse judgments that should properly be borne by B. Kobrin and DeAngelis. Defendant Brown further urges that B. Kobrin and DeAngelis are indispensable parties to the litigation.
The decision whether or not to stay proceedings is thus not required but rests in the sound discretion of the court. United States v. Kordel, supra, 397 U.S. 1, 90 S.Ct. 763, 25 L.Ed.2d 1; Landis v. North American Co., 299 U.S. 248, 57 S.Ct. 165, 81 L.Ed. 153 (1936).
[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the cases on its docket with economy of time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance. [Landis, supra, 299 U.S. at 254-255, 57 S.Ct. at 165-166, 81 L.Ed. at 158].
The question is “whether the trial judge pursued a manifestly unjust course.” Gittleman v. Central Jersey Bank and Trust Co., 103 N.J.Super. 175, 179 (App.Div.1968), rev’d on other grounds 52 N.J. 503 (1968).
Our careful review of the record, in the light of applicable law satisfies us that the Chancery Division did not abuse its
Defendants also seek discovery. All of the defendants are not similarly situated. Some may be unfairly hampered by the lack of discovery while others are not. Given the need for the exercise of the court’s individual discretion respecting each defendant, the State is not unreasonably required to be precise in what it seeks to learn and from whom. If the State is prepared to try its case without implicating the rights of a particular defendant, it should so state with specificity so that the exercise of the court’s discretion may be properly informed. Landis v. North American Co., supra, 299 U.S. at 254-255, 57 S.Ct. at 165-166, 81 L.Ed. at 158.
Affirmed.
Leave to appeal to the Appellate Division was denied and on October 9, 1985 the Supreme Court also denied a motion for a stay pending appeal.
The court also noted that any delays in the case were the fault of the State.
B. Kobrin claims that he has not yet been informed of the amount of the investors' losses. The State, however, claims that this amount was provided in the individual certifications of the investors (these certifications are not in the record).