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Hebrides Lament. Janizaries' March. Johnnie Cope. Lady Gethin. Liberty Song. Lincolnshire Farmer. Logan Water. Plaintiff moved for a second extension of time for the purpose of obtaining such certification, adducing additional evidence from witnesses and obtaining other evidence.
Although this motion was denied, the court read and considered the CAB copy. The district court allowed plaintiff to conduct oral examinations at the hearing. The issue presented to this court is whether the evidence, relating to TAC being an agent or instrumentality of RTAC, is such that RTAC is entitled to judgment as a matter of law, there being no genuine issue as to any material fact. It is clear that no genuine issue is presented by the allegation in the complaint that TAC was an agent of RTAC in the transactions which resulted in the fatal flight.
Indeed, a sincere application of agency rules would largely destroy the protection afforded stockholders by incorporation. We hold that the district court properly granted summary judgment on the issue of express agency. In order to establish that a subsidiary is the mere instrumentality of its parent, three elements must be proved: control by the parent to such a degree that the subsidiary has become its mere instrumentality; fraud or wrong by the parent through its subsidiary, e. Fisser v. International Bank, 2 Cir.
In determining whether the requisite degree of control is maintained by the parent corporation, many factors are relevant. It is the presence of these factors in the proper combination which is controlling.
Factors generally considered by courts are as follows:. While stock control and common directors and officers are generally prerequisites for application of the instrumentality rule, yet, they are not sufficient by themselves to bring the rule into operation. Costan v. Manila Electric Co. Third Ave. Such factors are common business practice and exist in most parent and subsidiary relationships.
The only other evidence on the issue of control is the copy of testimony by Rescoe Turner at the CAB hearing. The district court struck this copy due to lack of certification, although it subsequently read and considered it. We agree with the district court that an uncertified copy of testimony is inadmissible in a summary judgment proceeding.
As stated by Judge Schnackenberg in United States v. Tuteur, 7 Cir. It is not an affidavit. Respondent contends that it is not proper to consider it in support of the motion for summary judgment. We agree. While this issue is not before us, there is authority that certified testimony may be admissible in a summary judgment proceeding. See 6 Moore, supra at n. We do not reach the question of admissibility of a certified transcript of testimony at a trial on the merits and express no opinion thereon.
At the hearing on motion for summary judgment, plaintiff moved for additional time to obtain certification. The district court did not abuse its discretion in denying this request. Plaintiff's earlier request for an extension of time had been granted, giving her twelve additional days. No reason for her failure to obtain such certification was given. The district court granted plaintiff one extension of time, granted a recess so plaintiff could read the documents she failed to subpoena until five days prior to the hearing and allowed plaintiff to orally examine witnesses at the hearing.
In addition to this, the district court read and considered the inadmissible CAB testimony. It appears that plaintiff was given a reasonable opportunity to show the existence of a genuine issue concerning control of TAC by RTAC. Assuming, arguendo, that the district court was justified in considering the stricken CAB transcript, such testimony does not raise a genuine factual issue under the instrumentality rule.
This testimony by Roscoe Turner showed merely the sound business practice of aiding Meserve in the performance of his managerial duties for TAC. Plaintiff introduced into evidence at the hearing the various business documents, previously listed, of RTAC and TAC for the years to Certainly, if some of the foregoing requisite control factors existed indicating control of TAC by RTAC, they would appear from an examination of these documents.
We do not have here the usual case of the parent corporation being a shareholder of its subsidiary.
At the hearing, plaintiff was denied a second extension of time for the purpose, inter alia, of obtaining additional evidence. The record shows that plaintiff had sixteen weeks between the date RTAC filed its motion for summary judgment and the date of the hearing in which to obtain evidence. Plaintiff failed to specify in any particular the nature and character of the evidence she sought to produce. There was every appearance of a desire to conduct a fishing expedition.
The district court did not abuse its discretion in denying the second request for additional time.
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Rhetorical paragraph 2 of her complaint alleges:. Our examination of the record considered by the district court leads us to the conclusion that there was no genuine issue of a material fact relevant to the issue of agency either on the question of factual or express agency or on the question of the requisite interdependent relationship under the corporate instrumentality rule. The district court did not err in granting defendant's motion for summary judgment. The motion shall be served at least 10 days before the time fixed for the hearing.
The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in charactter, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Your Notes edit none. Authorities 6 This opinion cites: Taylor v. Lowendahl v. Baltimore Ohio R. Tuteur, F. Please support our work with a donation.