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BRIARPATCH LIMITED, L.P. v. THOMAS

May 20, 2003

BRIARPATCH LIMITED, L.P. AND GERARD F. RUBIN, PLAINTIFFS, AGAINST D.M. THOMAS, D.H. THOMAS LTD., BRIARPATCH FILM CORP., ROBERT M. GEISLER, VERNER SIMON, P.C. AND PAUL W. VERNER, DEFENDANTS.


The opinion of the court was delivered by: Robert W. Sweet, District Judge

O P I N I O N

Plaintiffs Briarpatch Limited, L.P. ("Briarpatch") and Gerard F. Rubin ("Rubin") (collectively, the "Plaintiffs"), have moved under 28 U.S.C. § 1332 and 1447 to remand this action against D.M. Thomas ("Thomas"), D.M. Thomas Ltd. ("DMT, Ltd."), Briarpatch Film Corp. ("BFC"), Robert M. Geisler ("Geisler"), Verner Simon, P.C. ("Verner Simon") and Paul W. Verner ("Verner") (collectively, the "Defendants"), to the Supreme Court of the State of New York, County of New York ("State Court"). For the reasons set forth below, the motion is granted.

Prior Proceedings

This action is part of the maelstrom of litigation that began in 1997 when Rubin acted upon the realization that his partners Geisler and John Roberdeau ("Roberdeau") since 1993 had violated their fiduciary duty to him. The following actions in this Court are some of those which resulted from that realization. Briarpatch Ltd., L.P. v. Geisler Roberdeau, Inc., No. 99 Civ. 9623, 2002 WL 31426207, *1 (S.D.N.Y. Oct. 30, 2002). Related actions include Briarpatch Ltd., L.P. v. Geisler Roberdeau, Inc., 99 Civ. 9623; Geisler v. Pate, 01 Civ. 4767; Briarpatch Ltd., L.P. v. Geisler, 02 Civ. 1590; Briarpatch Ltd., L.P. v. Thomas, 02 Civ. 1591; Geisler, v. Briarpatch Ltd., L.P., 02 Civ. 1592; Night Hawk Ltd. v. Briarpatch Ltd., L.P., 03 Civ. 1382.

This particular action was commenced in the State Court on July 6, 2001, seeking a declaratory judgment with respect to The White Hotel Project. Geisler and others sought to imitate The White Hotel Project, which was an effort to produce as a movie The White Hotel, a novel written by Thomas. An amended complaint added Geisler, Verner Simon, and Verner as Defendants, alleging modestly thirteen causes of action as follows:

Cause of Action Defendant Gravamen

First Geisler and BFC B r e a c h o f constructive trust
Second Geisler and BFC Breach of fiduciary duty
Third Geisler T o r t i o u s interference with performance of contract
Fourth Geisler and BFC Fraud/constructive fraud/fraudulent concealment
Fifth Verner Aiding and abetting b r e a c h o f c o n s t r u c t i v e trust/fiduciary duty
Sixth Verner Conspiracy to breach c o n s t r u c t i v e trust/fiduciary duty
Seventh Verner Aiding and abetting fraud/constructive fraud/fraudulent concealment
Eighth Verner Conspiracy to defraud and f r a u d u l e n t concealment
Ninth Verner Deceit and collusion pursuant to New York Judiciary Law Sec. 487
Tenth DM Thomas Aiding and abetting b r e a c h o f c o n s t r u c t i v e trust/fiduciary duty
Eleventh DM Thomas Conspiracy to breach c o n s t r u c t i v e trust/fiduciary duty
Twelfth Geisler, BFC Verner, DM Thomas Unjust enrichment
Thirteenth DM Thomas Declaratory judgment and injunctive relief
On December 20, 2002, the Defendants removed the action to this Court and answers were filed. The motion to remand followed and was heard and marked fully submitted on April 2, 2003, together with motions in Night Hawk Ltd. v. Briarpatch Ltd., L.P., 03 Civ. 1382 (RWS), in which the plaintiffs (the Defendants here) sought to enjoin the defendants (the Plaintiffs here) from interfering with The White Hotel Project.*fn1

The Parties

Briarpatch and Rubin are New York residents.

Thomas is alleged to be a citizen of the United Kingdom and BFC is a dissolved New York corporation. Geisler is a New York resident, Verner Simon is a New York law firm of which Verner, a New Jersey resident, is president.

Fraudulent Joinder

The party seeking to remove plaintiffs' suit to federal court, bears "the burden of establishing that the requirements for diversity jurisdiction were met." Mehlenbacher v. Akzo Nobel Salt, Inc., 216 F.3d 291, 296 (2d Cir. 2000); Crazy Eddie, Inc. v. Cotter, 666 F. Supp. 503, 508 (S.D.N.Y. 1987) (same).

The notice of removal concedes that plaintiffs partnership and Rubin are residents of New York and that three defendants, Geisler, BFC, and Verner Simon, are New York residents.

This Court's March 26, 2002 opinion in Briarpatch Ltd. v. Geisler Roberdeau, 194 F. Supp.2d 246 (S.D.N.Y. 2002), found that Rubin and Briarpatch are New York residents, as well as Geisler and BFC. However, the notice of removal alleges that each of the three New York Defendants have been fraudulently joined. However, a removing party asserting "fraudulent joinder" must demonstrate "by clear and convincing evidence" that either there has been "an outright fraud committed in the plaintiff's pleadings" or "there is no possibility, based on the pleadings, that a plaintiff ...


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