The opinion of the court was delivered by: CANNELLA
CANNELLA, District Judge:
The defendants herein, Joseph P. Brennan (City Sheriff of the City of New York) and The City of New York, move this Court pursuant to Rule 12(b) of the Fed.R.Civ.P. to dismiss plaintiff's complaint, or in the alternative, to decline or postpone the exercise of jurisdiction over the instant matter. Three grounds for such relief are urged upon the Court: (1) that the doctrine of abstention so requires; (2) that a prior state court judgment collaterally estops plaintiff from bringing this action; and (3) that the plaintiff has failed to join an indispensable party. For the reasons set forth below, the Court finds defendants' challenges to be without merit and denies the motion.
This matter arises out of an action begun by the Ronson Corporation against Liquifin Aktiengesellschaft ("Liquifin"), in the Supreme Court of New York, New York County, on July 6, 1973 with the obtaining by Ronson of an ex parte order of attachment. The order of attachment was immediately delivered to the Sheriff of the City of New York, who thereupon levied on $1,500,000 of Liquifin's funds then on deposit with the Franklin National Bank by serving a copy of said order of attachment upon an officer of the Bank. As a result of the attachment order the Bank put a "freeze" on Liquifin's account.
On July 19, 1973, Liquifin, acting pursuant to New York Civil Practice Law and Rules § 6222, obtained an order discharging the attachment. This order provided that upon service of the order and payment to the Sheriff of "his statutory fees and expenses," the attached property would be released. On the same day, the Sheriff demanded that Liquifin pay to him statutory fees and expenses in the sum of $75,625, and conditionally released the attachment provided that:
[of] the sum of $75,625, the Sheriff will hold $25,625 in escrow for three months either for substitution of that sum by a bond or the commencement of a proceeding to determine poundage as to the levy in excess of $1,000,000.
On September 19, 1973, Liquifin obtained an order removing the Ronson action to this Court, where it is presently pending before Judge Brieant (Ronson Corp. v. Liquifin Aktiengesellschaft and Liquigas SpA., Vincenzo Cazzaniga, 73 Civ. 4025 C.L.B.). On November 16, 1973 Liquifin paid to the Sheriff "with full reservation of all rights" the previously demanded sum of $75,625.
Having paid the Sheriff the amount demanded, Liquifin instituted the present action against the Sheriff and The City of New York. Jurisdiction is based upon diversity of citizenship and 28 U.S.C. § 1343, the jurisdictional predicate of 42 U.S.C. § 1983. Plaintiff's amended complaint contains three counts. In Count 1, plaintiff alleges that the required payment of $75,625 was a taking of property without due process of law and an "unreasonable interference with and undue burden upon access" to the New York State Courts and therefore is violative of the Fourteenth Amendment to the United States Constitution and Article I, Section 6 of the New York State Constitution. Count 2 alleges that a proper reading of Section 8012(b)(3) of N.Y.C.P.L.R. limits the maximum fee which the Sheriff could demand to $50,000 and not $75,625. The final count of the complaint alleges that C.P.L.R. Section 8012(b)(1), which permits a higher sheriff's fee to be charged in the counties of the City of New York than elsewhere in the State, denies due process and equal protection in violation of the Fourteenth Amendment to the United State Constitution and Article I, Section 6 to the New York State Constitution.
Defendants ask this Court to exercise its "discretion to postpone the exercise of . . . jurisdiction pending the resolution of the matters at issue by the Courts of the State of New York. . . ." (Weinberger Affidavit at 1). This invitation to abstain is declined.
As to Count 1 of plaintiff's complaint, attacking on due process grounds the constitutionality of New York's statutory procedure for compensation of sheriffs, abstention would be an abnegation of this Court's responsibilities and not a reflection of our "scrupulous regard for the rightful independence of the state governments"
and strong desire to foster comity. As the Supreme Court said in Lake Carriers' Association v. MacMullan, 406 U.S. 498, 509, 92 S. Ct. 1749, 1756, 32 L. Ed. 2d 257 (1972),
Abstention is a "judge-made doctrine . . ., first fashioned in 1941 in Railroad Commission v. Pullman Co., 312 U.S. 496, [61 S. Ct. 643, 85 L. Ed. 971] [that] sanctions . . . escape [from immediate decision] only in narrowly limited 'special circumstances,' Propper v. Clark, 337 U.S. 472, 492, [69 S. Ct. 1333, 93 L. Ed. 1480]," Zwickler v. Koota, 389 U.S. 241, 248, [88 S. Ct. 391, 395, 19 L. Ed. 2d 444] (1967), justifying "the delay and expense to which application of the abstention doctrine inevitably gives rise." England v. Medical Examiners, 375 U.S. 411, 418, 84 S. Ct. 461, 466, 11 L. Ed. 2d 440 (1964).
There are, however, no "special circumstances" in this case and unlike the situation in Railroad Commission of Texas v. Pullman Co.,
a definitive ruling on the state law issue will not aid this ...