Firefighters' Fund's Motion to Clarify Judge Marshall's Dismissal of Count III of Its First Amended Complaint
The Firefighters' Fund asks this court to clarify that portion of Judge Marshall's ruling purporting to dismiss Count III of its first amended complaint. The fund explains that the court's ruling states that the fund failed to allege a § 10(b) or Rule 10b-5 violation in this count, but that in fact Count III of this first amended complaint alleges common law fraud. The Firefighters' Fund suggests that Judge Marshall must have meant to dismiss Count II, which is a § 10(b) and Rule 10b-5 claim, and asks this court to reinstate Count III. Chicorp has joined the Firefighters' Fund in an Agreed Order on this score.
In a case already beset by an overabundance of paperwork, confused arguments and clerical errors, this motion does not bode well for the future. This court has before it a pleading (from the official court file) entitled "First Amended Complaint" dated October 4, 1988 and naming the Firefighters' Fund as the plaintiff. Count III of this pleading is entitled "Firefighters' Pension Fund's Alternative Claim Against Chicago Corporation for Violation of Rule 10b-5 -- Unsuitable and Speculative Trades." Count IV is entitled "Firefighters' Pension Fund's Claim of Common Law Fraud Against Poder and Chicago Corporation."
Something is obviously very wrong here. Either there is another first amended complaint with a different set of allegations than the one in the court file, or the Firefighters' Fund has burdened this court with another motion, and one that has no basis in the record of this case. Either way, the time has come for the attorneys in this case to begin taking their responsibilities seriously. Baseless motions, unnecessarily oversized briefs, and pleadings filed with counts omitted, though tolerated to this point, will not be in the future. For now, however, the Firefighters' Fund's motion -- now an agreed motion -- to clarify will simply be denied.
Chicorp's Motion to Clarify Judge Marshall's Failure to Dismiss Count III of the Police Fund's Complaint
Chicorp has moved this court to clarify Judge Marshall's ruling insofar as he omitted addressing Count III of the Police Fund's complaint. This count, like Count III of the Firefighters' Fund's complaint, alleges § 10(b) and Rule 10b-5 violations predicated on Chicorp's alleged encouragement of Poder to engage in unsuitable and speculative trades. Nevertheless, after Judge Marshall dismissed Count III of the Firefighters' Fund's complaint, he failed to carry this ruling over to his ruling on the Police Fund's pleadings.
This court agrees with Chicorp that Judge Marshall's failure to do so was inadvertent. The Police Fund has not attempted to argue that there is a difference between the third counts in the two complaints, nor made any efforts to controvert Judge Marshall's ruling that the count in the Firefighters' Fund Complaint should have been dismissed. Accordingly, the court will grant Chicorp's motion to clarify Judge Marshall's ruling by dismissing Count III of the Police Fund's complaint.
The Village's and Police Fund's joint motion to reconsider Judge Marshall's dismissal of the para. 902 claims is granted, the dismissal of these claims is vacated and the motion to dismiss them is denied. Chicorp's motion to reconsider the denial of its motion to dismiss the securities laws claims against all of the plaintiffs is denied. The Firefighters' Fund's motion for clarification is denied. Chicorp's motion for clarification is granted and Count III of the Police Funds' complaint is dismissed.
DATE: February 24, 1989