96 F.R.D. 163 | S.D.N.Y. | 1982
MEMORANDUM OPINION AND ORDER
This is a diversity action for breach of contract commenced on June 3, 1982 by the
CBS alleges that TVR entered into three written agreements to purchase from CBS (1) a minimum of 100,000 recordings entitled “A Time For Us” at $2.89 per recording; (2) a minimum of 50,000 recordings entitled “Disco Heat” at $2.78 per recording; and (3) a minimum of 50,000 recordings entitled “Moe Bandy/Salutes The American Cowboy” at $2.15 per recording. CBS further alleges that TVR breached the three agreements as TVR only purchased 5,500 recordings under the first agreement, 15,000 recordings under the second agreement and 7,000 recordings under the third agreement. CBS claims damages of $463,-050 caused by TVR’s breach of contract.
On July 16, 1982 TVR filed its Answer. The Answer contains two affirmative defenses and ten counterclaims. On August 9,1982, CBS moved to strike TVR’s affirmative defenses and counterclaims pursuant to Fed.R.Civ.P. 11 and 12(b)(6). On September 9, 1982, TVR moved to dismiss the instant action pursuant to Fed.R.Civ.P. 12(b)(1) and Rule 3(c)(2) of the Civil Rules for the Southern District of New York on the ground that the court lacks diversity or federal question jurisdiction.
TVR’s second affirmative defense and first counterclaim alleges that the action should be dismissed because the identical claims raised by CBS in this action are the subject of a prior pending action commenced by TVR against CBS and Chemical Bank on November 19, 1981 in New York State Supreme Court (the “state court action”). TVR has conceded that its counterclaims two through ten herein are identical to the complaint filed by TVR in the state court action.
In the state court action TVR is seeking injunctive, declaratory and monetary relief arising out of CBS’s actions with respect to two letters of credit representing funds owed CBS by TVR for the purchase of recordings. TVR agreed to furnish CBS with letters of credit to guarantee payment for its purchases of certain recordings from CBS. CBS subsequently drew down on one of the letters of credit and indicated that it intended to draw down on the other.
Both parties argue that in certain respects, namely as to the other party’s claims, the state court action precludes this court from inquiring into claims presently before the state court. Thus, CBS argues in its motion to strike that this court should dismiss or stay TVR’s second through tenth counterclaims on grounds of judicial economy, federalism and comity. CBS’s Memo
Both parties cite Daugherty v. Popick, 89 F.R.D. 642 (S.D.N.Y.1981) and Universal Gypsum of Georgia, Inc. v. American Cyanamid Co., 390 F.Supp. 824 (S.D.N.Y.1975) as support for their proposition that the other party’s claims should be dismissed on grounds of judicial economy and comity. The court in Daugherty v. Popick dismissed the complaint on the grounds that an earlier action was pending in New York State court between the same parties and sought the same relief as the federal action. The court observed, “[sjtrictly speaking, the fact that a prior action is pending is not a ‘defense’ and ... the case law has developed under the inherent powers and discretion of the court.” Id. at 643 (citations omitted). The Daugherty court went on to state: “It is clear, however, that in the interests of judicial economy, comity, and federalism, a diversity action may be stayed pending decision in an identical prior state court action.” Id. at 644.
Similarly, in Universal Gypsum the court stayed a federal diversity action pending the determination of a simultaneously commenced state action, stating that its power to do so “has been settled beyond peradventure.” Id. at 825. The court invoked “one of the abstention doctrines” in deferring to the state court in “a run-of-the-mill diversity action, where a state court action raising the same issues is simultaneously pending.” Id. See Colorado River Water Conservation District v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 1246, 47 L.Ed.2d 483 (1976); Levy v. Lewis, 635 F.2d 960, 965-66 (2d Cir.1980),
The Universal Gypsum court adopted the following criteria, enumerated in Nigro v. Blumberg, 373 F.Supp. 1206, 1212-13 (E.D.Pa.1974), pertaining to applications to defer consideration of federal actions in favor of a pending state court action: (1) considerations of comity; (2) promotion of judicial efficiency; (3) adequacy and extent of relief available in the alternative forum; (4) identity of parties and issues in both actions; (5) likelihood of prompt disposition in the alternative forum; (6) convenience of parties, counsel and witnesses; and (7) possibility of prejudice to a party as a result of the stay. Universal Gypsum, supra, at 827. This court finds that these factors provide a useful standard in evaluating such applications.
Applying these factors to the present case, the court finds that the action should be dismissed. The instant case and the state court action both concern the same parties and the same issues. The sixth cause of action in the state court action alleges that the three agreements, which are the subject of the instant action, were the basis for sums owed CBS under one of the letters of credit in the state court action. Issues of the validity of and amount of money owed CBS under these three agreements will necessarily be resolved in the state action. Principles of comity, federalism, judicial economy and efficiency require that this action be stayed. See Levy v. Lewis, supra.
Application of the remaining Universal Gypsum factors further support the dismissal of the federal action. Both the present action and the state court action turn exclusively upon issues of New York contract law. Such issues are better left to New York courts for an authoritative interpretation. See Moore v. Sims, 442 U.S. 415, 429-30, 99 S.Ct. 2371, 2380-81, 60 L.Ed.2d 994 (1979); Universal Gypsum, supra, at 827-28. Similarly, judicial efficiency will be promoted as the state action has progressed further than the present action and, as noted, will necessarily address the issues raised by the complaint herein. See Burton v. Exxon Corp., 536 F.Supp. 617, 623 (S.D.N.Y.1982). Additionally, CBS will be afforded a full and fair opportunity to litigate
In sum, each of the factors identified in Nigro v. Blumberg and Universal Gypsum support the dismissal of the instant action in favor of the state court action. Accordingly, the defendant’s motion to dismiss is hereby granted without prejudice. It is hereby further ordered that TVR’s motion for relief under 28 U.S.C. § 1927 is without merit and is denied in all respects.
SO ORDERED.
. CBS subsequently drew down on the second letter of credit and the parties entered into a stipulation on December 7, 1981 that the funds from that letter of credit would be placed into an escrow account pending the determination of TVR’s motion for a preliminary injunction in the state court action.