The opinion of the court was delivered by: ROBERT P. PATTERSON, JR.
ROBERT P. PATTERSON, JR., U.S.D.J.
Plaintiffs filed their second amended complaint in this action for compensatory damages on May 19, 1989. This Court, by opinion and order dated October 9, 1990, dismissed the second amended complaint as against all Defendants other than Defendants Leonard Smith, Stephen Maloney, and Monroe Birnberg.
Subsequently several Corporate Defendants moved pursuant to Fed. R. Civ. P. 54(b) for entry of a final judgment, which motion was denied on April 23, 1991. Thereafter discovery commenced, and the Court signed numerous letters rogatory in August 1991 to permit overseas discovery.
Plaintiffs moved pursuant to Fed. R. Civ. P. 41 for a voluntary dismissal with prejudice of Counts One and Two of the Second Amended Complaint, alleging violations of 18 U.S.C. § 1962 ("the RICO counts"), on condition that this Court also dismiss Plaintiffs' remaining state claims for lack of subject matter jurisdiction. Plaintiffs claim that the purpose of their motion is to facilitate joinder of the individual Defendants in an action currently pending against the Corporate Defendants in New York Supreme Court, initiated after this Court dismissed Plaintiffs' claims against the Corporate Defendants. At that time, Plaintiffs could have voluntarily dismissed their claims against the Individual Defendants and joined them as defendants in the state court action but chose not to do so. Plaintiffs cite no authority allowing the filing of a conditional motion. Their motion, in effect, asks the Court to consider and decide a hypothetical question, namely whether it would dismiss the state claims for lack of jurisdiction, although that question is not presently before this Court. For this reason, the Court denies Plaintiffs' motion. Nevertheless, the Court will review Plaintiffs' position on its merits.
Defendant Smith also moved pursuant to Fed. R. Civ. P. 37(d) for an order precluding Defendant Maloney, whom he claims has aligned himself with Plaintiffs, from testifying as a witness at trial, on the grounds that he failed to attend his own deposition and failed to respond to document requests. Defendant Smith specifically hinges his relief upon Defendant Maloney's continued failure to comply with discovery demands. Depetris Decl. in Supp. P11. Since Defendant Smith's motion was filed, Defendant Maloney has been deposed. Although the Court is unaware whether Mr. Maloney has completed his deposition or complied with the document requests, the Court declines to grant Defendant Smith's motion on that ground.
1. Dismissal of State Claims
Since Plaintiffs condition their motion on this Court's dismissal of the remaining state law claims, the Court first considers whether it would indeed dismiss those claims if it granted Plaintiffs' Rule 41(a)(2) motion as to the RICO counts. This Court may retain jurisdiction over the remaining state claims if it has an independent basis of jurisdiction, such as diversity jurisdiction, over them. Even if the Court lacks an independent basis of jurisdiction over the state claims, it may exercise pendent jurisdiction over those claims if substantial resources have already been expended in the action. See Enercomp, Inc. v. McCorhill Publishing, 873 F.2d 536, 545-46 (2d Cir. 1989); Philatelic Found. v. Kaplan, 647 F. Supp. 1344, 1348 (S.D.N.Y. 1986). Factors weighing in favor of exercising pendent jurisdiction include lengthy pretrial litigation, numerous orders and memoranda already issued by the court, filing of a dispositive motion at a late stage of litigation, the district court judge's familiarity with the case, and delay to defendants in obtaining trial in state court. Enercomp, 873 F.2d at 546.
Initially, in their amended complaint, Plaintiffs alleged that federal subject matter jurisdiction existed by virtue of both diversity and their RICO claims. In Judge Walker's opinion in which he dismissed the amended complaint with leave to replead, 712 F. Supp. 339 (S.D.N.Y. 1989), Judge Walker found that there was not complete diversity and that the sole basis for jurisdiction was 28 U.S.C. § 1331. Plaintiffs subsequently filed a second amended complaint, in which they alleged subject matter jurisdiction only under § 1331. This Court then dismissed the RICO counts as well as the remaining state claims in the second amended complaint as against the Corporate Defendants, which included several nondiverse Defendants. The dismissal left RICO claims remaining as against the Individual Defendants. It may have also created diversity.
Plaintiffs claim that because "diversity jurisdiction did not exist at the time the action was commenced and was not applied as a basis of jurisdiction," the Court upon dismissal of the RICO counts would lack subject matter jurisdiction over the remaining state law claims. Pl. Mem. in Supp. at 11. Plaintiffs cite the general rule that "the existence or non-existence of diversity jurisdiction is determined at the commencement of an action." Id. Defendant Smith notes the "exception to the general rule applicable here, namely that courts frequently preserve diversity jurisdiction by dropping a nondiverse party."
Def. Mem. in Opp. at 17.
This Court had jurisdiction over this action from its commencement pursuant to 28 U.S.C. § 1331, based on the RICO counts. If the dismissal of the nondiverse Corporate Defendants from the case created diversity jurisdiction as well, such diversity must be based upon the citizenship of the remaining parties at the time the action was commenced. See D'Arbois v. Sommelier's Cellars, 741 F. Supp. 489, 490 (S.D.N.Y. 1990). The second amended complaint affirmatively alleges facts sufficient to determine diversity of citizenship as between Plaintiffs and the Individual Defendants. See Grace v. American Central Ins. Co., 109 U.S. 278, 284, 27 L. Ed. 932, 3 S. Ct. 207 (1883); Hodas v. Lindsay, 431 F. Supp. 637, 640 (S.D.N.Y. 1977). It alleges that Plaintiffs are incorporated in the Cayman Islands, and that their principal place of business is in the Cayman Islands;
Defendant Smith is a citizen of New York; Defendant Maloney is a citizen of Rhode Island; and Defendant Birnberg is a citizen of New York.
Although Plaintiffs specifically pled jurisdiction based only on 28 U.S.C. § 1331, this Court may take notice of the existence of diversity jurisdiction as based on the allegations in the complaint. See 5 C. Wright & A. Miller, Federal Practice & Procedure § 1206, at 91-92 (2d ed. 1990).
Plaintiffs rely heavily on Zepik v. Tidewater Midwest, 719 F. Supp. 751, 755 (N.D. Ind. 1989), for the argument that, where diversity is not a basis for jurisdiction at the commencement of the action, federal jurisdiction is not created by the dismissal of federal question claims against the only nondiverse party. Zepik does not cite any case law for its conclusion and in any event is not binding on this Court. In Baylis v. Marriott Corp., the Second Circuit indicated that the opposite conclusion would be reached in this circuit. In Baylis, the amended complaint alleged federal question jurisdiction based on claims against a new defendant, and diversity was eliminated from the amended complaint as a basis for jurisdiction, presumably because the new defendant, Pan Am, was nondiverse. 843 F.2d at 665. The Second Circuit noted:
With the case against Pan Am dismissed, diversity may again exist between plaintiff and defendant. If on remand plaintiffs are granted leave to amend their complaint to assert diversity jurisdiction, and if the district court determines that diversity exists, the court should permit the case . . . to proceed as a diversity action. This could be more economical ...