Super Stores, Inc. v. Reiner (737 F.2d 962, 1984)

PER CURIAM:

The district court adopted as its opinion the recommendations of the magistrate. We have reviewed the magistrate’s recommendations, as adopted by the district court, and we find that they are a concise and correct disposition of the case. They are, therefore, adopted as our opinion, attached as an appendix. See also Gund v. First Florida Banks, Inc., 726 F.2d 682, 686-87 (11th Cir.1984).

AFFIRMED.

APPENDIX

RECOMMENDATION OF THE MAGISTRATE

This action is submitted for recommendation on cross motions for summary judgment filed by the parties with respect to Count One of the complaint. All counts other than Count One were dismissed by the Order of the Court entered October 11, 1983. That Order allowed Plaintiff fifteen days to amend, but no amendment has been filed. Accordingly, Count One is the only claim remaining in this action. The motions for summary judgment with respect to that count have been referred to the Magistrate pursuant to 28 U.S.C. § 636(b)(1)(B), and this report and recommendation is entered in furtherance of that reference.

Plaintiff is Super Stores, Inc., a corporation. The only Defendant remaining is Richard L. Reiner, an individual who was formerly a director, executive officer, and shareholder in Plaintiff. Count One seeks recovery for short-swing profits in Plaintiff’s stock allegedly realized by Plaintiff in violation of § 16(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78p(b).

Section 16(b) provides in part as follows: For the purpose of preventing the unfair use of information which may have been obtained by such beneficial owner, director, or officer by reason of his relationship to the issuer, any profit realized by him from any purchase and sale, or any sale and purchase of any equity security of such issuer (other than an exempted security) within any period of less than six months, unless such security was acquired in good faith in connection with a debt previously contracted, shall inure to and be recoverable by the issuer, irrespective of any intention on the part of such beneficial owner, director, or officer in entering into such transaction of holding the security purchased or of not repurchasing the security sold for a period exceeding six months.

The facts in this action are in material part undisputed and it is likewise undisputed that the language of § 16(b) is literally applicable. The material facts are as follows:

1. Plaintiff Super Stores, Inc., is an issuer within the meaning of § 16(b) and its common stock is registered with the Securities Exchange Commission.

2. Defendant Reiner was president and director of Plaintiff at all times relevant to the alleged § 16(b) violation.

3. On December 16 and 17, 1982, Defendant Reiner purchased 47,709 shares of the common stock of Plaintiff for 10