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August 5, 1991


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 in part.


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 380 (1988)).

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 (1987)).

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 ...

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