Free Opening Brief in Support - District Court of Delaware - Delaware

Case 1:04-cv—O1268—***—MPT Document 36-6 Filed O3/O2/2005 Page1 of 4
EXHIBIT E

Case 1:04-cv—O1268—***—MPT Document 36-6 Filed O3/O2/2005 Page 2 of 4
LEXSEE 2003 US DIST LEXIS HGB5
OCCUNOMIX INTERNATIONAL LLC, Plaintiff, —v·· NORTH OCEAN
VENTURES, INC., ct ai., Defendants.
63 Civ. 6047 (GEL)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK
2003 U.S, Dist. LEXIS 17085
September 26, 2003, Decided
September 30, 2003, Filed
DISPOSITION: [*1} Plaintiffs motion to dismiss thc Coun 10 abstain from exercising jurisdiction over thc
without prejudice grunted and dcfcmi:mt's motion 10 federal ciaim under Colorado River Warer Canservarfan
dismiss with prejudice: demicd. Distric: v. United Sraxes, 424 U.S. 800, 47 L, Ed. 2d 48.3.
96 S Cr. 1236 ( 1976), and to dismiss thc smtc—luw claims
LcxisNcxis(R) Headnotns under 28 U»S.C1 § I367{e:·}{2) because the sLntc—law
claims predominate uvcr the fcdera§ claims. Esscmiaily,
plaintiff sacks I0 withdraw thc Complaint without
COUNSEL: James B. Zane, Zzmc and Rudofsky, New prejudice :0 its right to rcinstitutc thc stun: court
York, NY, for plaintiff OccuN0mix International LLC proceedings that it vuluntarily discontinued on August
11, 2003. Defendants oppose an dismisses! without
Richard Bw Cohen, Akabas & Cohen, New York, NY, for prejudice:. arguing that Feds Rh Civ. P 41(a)(}) requires
defendants North Ocean Ventures, Ina., cz :1}. dismissal with prejudice because ptaimiff has previously
brought and withdrawn am action in state court including
JUDGES: GERARD E LYNCH, United States District thc same sum=;—1aw claimsh
Judge" For aha reasons that follow, thc Court declines to
_ exercise ins discretion an take supplemental jurisdiction
OPINIONBY GERARDE LYNCH over the stmc—law claims pursuant to 28 U..$..C. §
OHNION J367(c){2), since those claims substantinliy predominate
' ovcr thc sole: fccicral ciaim. The rcmuiniug fcdcra} cause
OPINION AND ORDER of action is dismissed without prejudice pursuant {*3] {0
Fed. R Cha P, 4I(a){2)A
GERARD E. LYNCH, District Judge:
Plaintiff Oc<:uN¤mix Intcrnuticnai LLC sues I smc MW Cimms
defendants North Ocean Vcnturcs, Inc., ct al, for Hand, The Court declines tu cxcrcisc jurisdiction over the
contract branch and violation of the Electronics st¤tc~1aw claims because: Lhasa claims substantially
Communications Privacy Act ("ECPA"). 18 USC § § predominate cvar thc fcdcml claim As the Chief Judge
2701 et seq, concerning pézzimiffs acquisition of of this District has noted, § 1'367(c·)(2) creates as iimited
cl¤fand¤nts' company Fcliowing written submissions by exception tu thc cxcrcisc of suppicmc-:m:1§ jurisdiction,
thc parties and oral argument, the Court dcnizd plaintiffs "thm shouid bc: invoked only when ‘pc-zrmiating litigation
motion for emergency sclécf in thc form of a assct~ of all claims in thc district court can accurately bc
freezing order 0:1 Scptcmbcr 2,2003. described as uilcwing a federal tai! to wag what is in
. . . . . . bstancc xs stmc dug? Borough of Wes! Myflirz v
Fulluwmg ax chscussscn of whcrjwr thrs czxsc xs qu _ _ . .,
propcriy brought [*2] in fcdcrnl Court, plaintiff moved [0"umgr’ 45 FM 78O` 7,89 {M C"' 1995) ` Lmmgo v

Case 1:04-cv-01268-***-IVIPT Document 36-6 Filed O3/O2/2005 Page 3 of 4
Page 2
2003 US. Dist LEXIS 17085. *
Nnrimrwicie Muruni Insru··i;rnce Co.-, 1996 US Dist. not included in the original [*6] state complaint and has
LEXIS 1H86, No 95 Civ. .5790 (MEM), 1996 WL never been made in state court
445365 {SDN Y Augi 7, ]996). in determining whether Wh d { d G , E h I
state law claims substantially predominate, courts d. . imf isn ams Ogohsupil me tg [ E VD umary
consider "whether the state law claims are more complex nismlssu ° I u°m°n’ a mlllsw may ° granted (mh';
or require more judicial resources to adjudicate or are upon fuchdlfgmi and Cmldmons Us til? com demm
more salient in the case as a whole than the federal law priipgp FS. C QCWEP gllagzg dccgdlllg Whethethr
clairns." Diven v Arnalgarnated Transit Union Int'l & V0 ummiy lsmlssa lm er il 6. (dll ) iS,p¥Opcr’ L B
Local 689I 309 US App D C- 23, 38 FM 598, 601 appropriate terms of such a drsrmssal (including whether
M Cr liter E3§isi‘3f£“‘l§?s}si§s“°`$Esi”°iss21’Zil;°“‘-·ili’°*Ii1i‘°°i3is~‘ii‘ii*’il?§
} 9 ‘
Here, twelve of the thirteen claims asserted {*4] in diligence in bringing the motion; (2) any 'undue
the complaint are state law claims describing amuititude vexatiousness on the plaintiffs part; (3) the extent to
of business torts as well as a religious discrimination which the suit has progressed ...; (ri) the duplicative
claim. Tite state—taw ctaims go to the very heart of, and expense of relitigation; and (5) the adequacy of plaintiffs
largely seek to undo, a complex and contested corporate' explanation for the need to dismiss " Carcrrzano v. Wing,
transaction. The sole federal claim is described in four 277 !iT3d 99, I10(2d Cirs ZOO!). None of these factors
paragraphs (less than one page) of a ll5»paragraph (50— warrant rr denial of the motion to withdraw the
page) complaint, and regards allegations that defendants Complaint: {1) plaintiff was not dilatory in tiling the
deleted some e—n1ails from an OccuNomix database after rnotion; {2) the motion was not made to harass, but rather
the transaction had closed. {Compls PP 66-69.) Because in response to the Courts invitation to reconsider where
the federal claim is only tangentially related to the rea} to bring the action; (3) the federal litigation is in the very
subject of this dispute, the "substantially preciominates" early stages and there has been no discovery {*7] or
standard of § I367(c){2) is easily mee Since the even ri futly—briet`ed motion to dismiss; (4) reiitigation
dismissal of the state—law claims is on jurisdictional would not he dupiicative of anything that has occurred in
grounds, this dismissal is by definition not an this forum; and {5) plaintiffs explanation for the
adjudication on the merits and is without prejudice withdrawal is adequate, in that it responds to the Courfs
suggestion that the dispute may be more appropriately
II. Federal Claim tried before a state court because state law claims
The sole remaining federal claim will be dismissed pmdmunmm
without prejudice pursuant to Fed. Ri Civ. P. 4I(o){2). The purpose of Rule 4J(¤)(2) "is primarily to
Plaintiffs request for Colorado River abstention is prevent voluntary disrnissals which unfairly affect the
unavailingi That case authorizes aestention in certain other sides" Alrtmance Indus., Inc. v. Filcrreis, Z9! F.2d
narrow circumstances involving concurrent federal and 142. I46 {Ist Cir I961), cited in 9 Charles Alan Wright
state proceedings, despite [*5] the federal courts' usual & Arthur R. Miller, Federal Practice and Procedure §
"virtually unfiagging obligation to exercise the 2364, at 279 {2d ed 1995). See also Correspondent
jurisdiction given to them? 424 U.S,. ar 317. Here. there Services Corp, v. Ftrs: Equities Corp. of Florida, 338
are no pending state proceedings. so the fundamental Fisid 1151 JZ6 (2d Cir 2003).. Here, thereis no indication
prerequisite for Colorado River abstention is not met that defendants will be prejudiced by the withdrawal of
What sisisiiii really is s dismissal without ltr irdgpl ~=*¤lm·dr**¤** rlmitt brought lm the ea
prejudice. despite defendants argument that any mw m as pmccc mg
dismissal must be with prejudice under Fedi Ri Civ, P Defendants suggest, with some justification, that
4I{rr}{.l). l`)efendant.s’ argument that Rule 41{a)(1) plaintiffhas engaged in unjustified forum-shopping But
provides the sole vehicle to dismiss the federal claim is the gravamen of deti:ndants' forum-shopping charge is
incorrect, however, Rule 4l(a)(1), as its title suggests, that plaintiff unjustifiably withdrew its state·court suit
concerns voluntary dismissal "By Plaintiff; By and sought to proceed {*8} in federal court on a slim
Stlpuiation-" Here there is no stipulation In the absence jurisdictional reed. The present order does not reward or
of a stipulation by the parties, Rule 4I(a)(2), concerning facilitate forum--shopping; rather, it returns the case to
voluntary dismissal "By Order of Court," is the the court where it was first brought and has always
applicable rule. At any rate, even if Rule 41(a){J) were belonged
applicable, this rs not a case in which plaintiff seeks to AS nom} Elbow. :1 dismissal under RMB dlwgz}
withdraw from federal court a claim previously made ,,
and withdrawn in state courti The federal claim under the may bi grained ullon Such mms as nie hmm deems
scsi, the only sisiis issssisiiis iii iis ssss iii iisiii of gmreh Drtrgtrrts iitrmrn the ***j=*=¤mrSS¤* $*30***
the jurisdictional dismissal of the state-law claims. was C wu pmju icc mlm bc mjccwd 1* OWBVH mmmass

Case 1:04-cv—O1268—***—MPT Document 36-6 Filed O3/O2/2005 Page 4 of 4
Page 3
2003 U S. Dist, LEXIS 17085, *
ciefendams believe plaintiffs ciaims to be, they have 2.. The remaining federal claim {Claim
never been addressed on the merits Plaintiffs One) is dismissed without prejudice on
jurisdictionai maneuverings have wasted some time and plaintiffs motion pursuant to Fed. R. Civ.
effort, bu; that does not warrant denying it the P. 4J(a}(2).
opportunity to have its claims adjudicated.
For as foregoing it is hereby Umm fg; g§; that:
1. The stare law claims (Claims Two Damdiszpwmbcf 26’2G03
through Thirteen) me dismissed for lack SO ORDERED: [*9]
of subjecs matter jurisdiction pursuant so _
zs u.s.c.§ 1.267{¤J(2;;¤¤a GERMLD E LYNCH
United States District Judge