The opinion of the court was delivered by: SWEET
In this antitrust action, transferred to this Court from the United States District Court for the Middle District of Alabama (the "Alabama Federal Court") by order of the Judicial Panel on Multi-District Litigation (the "JPML"), Plaintiffs Robert K. Tisdale and Lillian A. Tisdale ("Plaintiffs" or the "Tisdales") have moved pursuant to 28 U.S.C. § 1447(c) to remand the action to the Circuit Court of Montgomery County, Alabama, where the Complaint was originally filed.
Because federal question jurisdiction exists, and for the reasons set forth below, the motion will be denied.
The Tisdales, husband and wife, are residents of Montgomery County, Alabama, who purchased securities traded on the NASDAQ exchange.
Defendants -- A.G. Edwards & Sons, Inc.; Alex. Brown & Sons, Incorporated; Cantor Fitzgerald & Co.; Cowen & Co.; CS First Boston Corporation; Donaldson, Lufkin & Jenrette Securities Corporation sued herein as Donaldson, Lufkin & Jenrette, Inc.; Hambrecht & Quist L.L.C.; Herzog, Heine, Geduld, Inc.; J. C. Bradford & Co.; Jeffries & Company, Inc.; EVEREN Securities, Inc. sued herein as Kemper Securities Group, Inc.; Kidder, Peabody & Co. Incorporated; Legg Mason Wood Walker, Incorporated; Lehman Brothers Inc.; Mayer & Schweitzer, Inc.; Merrill Lynch, Pierce, Fenner & Smith, Inc.; Montgomery Securities; Morgan Stanley & Co., Incorporated; Nash, Weiss & Co.; OLDE Discount Corporation; Oppenheimer & Co., Inc.; Paine Webber, Incorporated; Piper Jaffray Inc.; Prudential Securities Incorporated; Robertson, Stephens & Company; The Robinson-Humphrey Company Inc.; Salomon Brothers Inc.; Sherwood Securities Corp.; Smith Barney Inc.; Troster Singer; UBS Securities Inc.; and Weeden & Co. L.P. -- are market-makers in securities traded on the NASDAQ exchange.
The parties, facts, and prior proceedings in In re NASDAQ Market-Makers Antitrust Litigation, MDL 1023, are set forth in this Court's previous opinions in this action, In re NASDAQ Market-Makers Antitrust Litig., 929 F. Supp. 723, 1996 U.S. Dist. LEXIS 7768, No. 94 Civ. 3996, 1996 WL 304328 (S.D.N.Y. June 6, 1996); In re NASDAQ Market-Makers Antitrust Litig., 1996 U.S. Dist. LEXIS 4969, No. 94 Civ. 3996, 1996 WL 187409 (S.D.N.Y. April 18, 1996); In re NASDAQ Market-Makers Antitrust Litig., 164 F.R.D. 346 (S.D.N.Y. 1996); In re NASDAQ Market-Makers Antitrust Litig., 894 F. Supp. 703 (S.D.N.Y. 1995), familiarity with which is assumed.
Facts and Prior Proceedings
Plaintiffs filed this action in the Circuit Court of Montgomery County, Alabama (the "Alabama State Court"), on December 15, 1995. On January 12, 1996, all Defendants joined in the removal of the action to the Alabama Federal Court, where the action was assigned to the Honorable Ira DeMent. On January 16, 1996, Plaintiffs applied for an order to show cause why the case should not be remanded (the "Remand Motion"). The motion was fully briefed to Judge DeMent by the parties. On April 4, 1996, prior to Judge DeMent's resolving the Remand Motion, the JPML ordered the case transferred to this Court for coordinated pretrial proceedings with In re NASDAQ.
On April 19, 1996, the Tisdales wrote to this Court, directing its attention to the pendency of the Remand Motion and attaching photocopies of the briefs and related papers submitted to Judge DeMent. The letter was deemed to be a motion before this Court for remand. On May 6, 1996, Defendants submitted a supplemental memorandum of law in opposition. Oral argument was heard and the motion was deemed fully submitted on May 8, 1996.
The Tisdales seek redress for Defendants' alleged conduct in colluding to fix and maintain artificially wide "spreads" in the trading of securities on the NASDAQ. The Tisdales, on behalf of themselves and all others similarly situated, assert two claims. One sets out a cause of action pursuant to a pair of Alabama statutes. The first of these statutes states in pertinent part:
(a) Any person, firm, or corporation injured or damaged by an unlawful trust, combine or monopoly, or its effect, direct or indirect, may, in each instance of such injury or damage, recover the sum of $ 500 and all actual damages from any person, firm, or corporation creating, operating, aiding, or abetting such trust, combine, or monopoly and may commence the action there for against any one or more of the parties to the trust, combine, or monopoly, or their attorneys, officer, or agents, who aid or abet such trust, combine, or monopoly.
Ala. Code § 6-5-60 (1975). The other statute upon which the first claim seeks relief reads in pertinent part:
Any person or corporation who engages or agrees with another person or corporation or enters, directly or indirectly, into any combination, pool, trust, or confederation to regulate or fix the price of any article or commodity to be sold or produced within this state or any person or corporation who enters into, becomes a member of or party to any pool agreement, combination, or confederation to fix or limit the quantity of any articles or commodity to be ...