The opinion of the court was delivered by: Leisure, District Judge:
This is an action to enforce a foreign judgment. Plaintiffs
have now moved, pursuant to Federal Rule of Civil Procedure 56,
for summary judgment enforcing the foreign judgment. Defendant
has cross-moved, pursuant to the same rule, to dismiss all or
part of the complaint on several grounds. For the reasons
stated below, plaintiffs' motion is granted in part, with
judgment reserved in part pending submission of supplemental
briefs. Defendant's cross-motion is granted in part, and denied
This action to enforce a French judgment against defendant
Scott Meredith Literary Agency, Inc. ("SMLA") arises out of the
1984 sale by Clark Howard ("Howard") to
plaintiff Prosper Pariente ("Pariente") of an option for motion
picture rights to Howard's novel The Arm.*fn1 Subsequent to
this purchase, Pariente, plaintiff Regis Ander ("Ander"), and
Patrice Valota ("Valota")*fn2 collaborated in writing a
screenplay derived from the novel. It was later discovered that
Howard had previously sold the motion picture rights to this
novel to another buyer, and thus Pariente's purchase was void.
Litigation in France followed. The Court of Appeals of Paris,
modifying a lower court judgment,*fn3 held SMLA, as Howard's
literary agent, liable to Pariente and Ander for 412,000 and
212,000 French francs, respectively.*fn4 Plaintiffs were found
liable to KUIV Productions ("KUIV"), a company with which they
had contracted to produce their screenplay. Howard, but not
SMLA, was required to indemnify plaintiffs for any amounts they
were required to pay KUIV.
The cross-motions before this Court raise three issues.
First, SMLA seeks an order dismissing plaintiffs' second and
sixth causes of action, in which plaintiffs seek
indemnification from SMLA of any amounts plaintiffs are
required to pay KUIV. Second, SMLA seeks an order dismissing
the fifth, seventh and eighth causes of action, which assert
Ander's claims, on the ground this Court lacks subject matter
jurisdiction over those claims. Third, the parties have
cross-moved with respect to the issue of whether this Court
should enforce the Judgment.
Federal Rule of Civil Procedure 56(c) provides that summary
judgment "shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, 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."
Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505,
2509-10, 91 L.Ed.2d 202 (1986). "Summary judgment is
appropriate if, 'after drawing all reasonable inferences in
favor of the party against whom summary judgment is sought, no
reasonable trier of fact could find in favor of the non-moving
party.'" United States v. All Right, Title & Interest in Real
Property, etc., 901 F.2d 288, 290 (2d Cir. 1990) (quoting
Murray v. National Broadcasting Co., 844 F.2d 988, 992 (2d
Cir.), cert. denied, 488 U.S. 955, 109 S.Ct. 391, 102 L.Ed.2d
The substantive law governing the case will identify those
facts which are material, and "[o]nly disputes over facts that
might affect the outcome of the suit under the governing law
will properly preclude the entry of summary judgment."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct.
2505, 2510, 91 L.Ed.2d 202 (1986). "[T]he judge's function is
not himself to weigh the evidence and determine the truth of
the matter but to determine whether there does indeed exist a
genuine issue for trial." Anderson, supra, 477 U.S. at 249, 106
S.Ct. at 2511; see also R.C. Bigelow, Inc. v. Unilever N. V.,
867 F.2d 102, 107 (2d Cir.), cert. denied, 493 U.S. 815, 110
S.Ct. 64, 107 L.Ed.2d 31 (1989). The party seeking summary
judgment "bears the initial responsibility of informing the
district court of the basis for its motion," and identifying
which materials "it believes
demonstrate the absence of a genuine issue of material fact."
Celotex, supra, 477 U.S. at 323, 106 S.Ct. at 2552-53; see also
Trebor Sportswear Co. v. Limited Stores, Inc., 865 F.2d 506,
511 (2d Cir. 1989).
Once a motion for summary judgment is properly made, however,
the burden then shifts to the non-moving party, which "'must
set forth facts showing that there is a genuine issue for
trial.'" Anderson, supra, 477 U.S. at 250, 106 S.Ct. at 2511
(quoting Fed.R.Civ.P. 56(e)). "[T]he mere existence of some
alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material
fact." Anderson, supra, 477 U.S. at 247-48, 106 S.Ct. at 2510
(emphasis in original). "Conclusory allegations will not
suffice to create a genuine issue. There must be more than a
'scintilla of evidence,' and more than 'some metaphysical doubt
as to the material facts.'" Delaware & Hudson Railway Co. v.
Consolidated Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990)
(quoting Anderson, supra, 477 U.S. at 252, 106 S.Ct. at 2512
and Matsushita Electric Industrial Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d
538 (1986)); see also Carey v. Crescenzi and Harenzy Realty
Corp., 923 F.2d 18, 21 (2d Cir. 1991). "The non-movant cannot
'escape summary judgment merely by vaguely asserting the
existence of some unspecified disputed material facts,' or
defeat the motion through 'mere speculation or conjecture.'"
Western World Insurance Co. v. Stack Oil, Inc., 922 F.2d 118,
121 (2d Cir. 1990) (quoting Borthwick v. First Georgetown
Securities, Inc., 892 F.2d 178, 181 (2d Cir. 1989) and Knight
v. U.S. Fire Insurance Co., 804 F.2d 9, 12 (2d Cir. 1986),
cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762
I. Plaintiffs' Claims for Indemnification by SMLA
The second and sixth causes of action in the complaint seek
indemnification by SMLA for amounts the Judgment held Pariente
and Ander liable to KUIV. Plaintiffs subsequently admitted that
they are "not entitled to indemnification by SMLA for any part
of the amounts awarded to KUIV Productions against plaintiffs."
Plaintiffs' Response to Defendant's First Request for
Admissions, attached as Exhibit 3 to the Glasgow Affidavit.
Plaintiffs now concede that SMLA is entitled to summary
judgment on the second and sixth causes in action, the requests
for indemnification. Affidavit of Gelacio M. Cordero, Esq.,
sworn to on June 11, 1991 ("Cordero Aff."), ¶ 2 n. 3.
Accordingly, SMLA's cross-motion for summary judgment on
plaintiffs' second and sixth causes of action is granted.
II. Subject Matter Jurisdiction Over Ander's Claims
The Court's subject matter jurisdiction over this action is
based on the diversity of citizenship*fn5 of the parties.*fn6
As discussed above, the parties now concur that the most Ander
is entitled to is 212,000 French francs. SMLA has submitted
uncontroverted evidence that, from the date of the decision of
the Paris Court of Appeals until the present time, this sum, as
converted into United States currency, has never exceeded
$50,000. Affidavit of Frank R. Curtis, Esq., sworn to on May
23, 1991 ("Curtis
Aff."), ¶ 5.*fn7 SMLA has thus cross-moved for summary
judgment on Ander's remaining claims, the fifth, seventh, and
eighth causes of action in the complaint, on the ground of lack
of subject matter jurisdiction. Such a motion may be made at
any stage of the proceedings. Fed.R.Civ.P. 12(h)(3).
A plaintiff always bears the burden of showing that the
district court has jurisdiction, McNutt v. General Motors
Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80
L.Ed. 1135 (1936). Ander makes two arguments in support of this
Court's exercise of jurisdiction over his remaining claims.
First, Ander cites New York Judiciary Law § 27(b) for the
proposition that the value of a foreign judgment must be
calculated at the time the judgment is entered.*fn8 From this,
Ander argues that changes in the rate of exchange between the
French franc and American dollar between now and entry of
judgment could occur that would result in 212,000 French francs
becoming worth in excess of $50,000.
Contrary to Ander's contention, however, New York Judiciary
Law § 27(b) — which pertains to the calculation of foreign
judgments, and not to the determination of questions of federal
diversity jurisdiction — is not applicable to the issue at
hand.*fn9 Although Ander correctly states that in a diversity
suit a federal court applies the substantive law of the state
in which it resides, Erie Railroad Co. v. Tompkins,
304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), he fails to recognize
that "state law does not affect the federal definition of when
a plaintiff may bring a diversity action in this court."
National Union Fire Insurance Company of Pittsburgh v. Barney
Associates, 130 F.R.D. 291, 294 (S.D.N.Y. 1990). It is long
settled that, with regard to the threshold question of
jurisdiction, the value of the matter in controversy is
determined at the action's commencement. See St. Paul Mercury
Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289-90, 58 S.Ct.
586, 590-91, 82 L.Ed. 845 (1938); Zacharia v. Harbor Island
Spa, Inc., 684 F.2d 199, 202 (2d Cir. 1982); Peoples
Westchester Savings Bank v. Ganc, 705 F. Supp. 164, 166
(S.D.N.Y. 1989). Under ...