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Kozak v. Pacific Summa Environmental Corp.

January 30, 2008

DENNIS KOZAK, PLAINTIFF,
v.
PACIFIC SUMMA ENVIRONMENTAL CORP. AND ITS SUCCESSOR, ARIES RESOURCE CORP., DEFENDANTS.



The opinion of the court was delivered by: Hurley, Senior District Judge

MEMORANDUM AND ORDER

INTRODUCTION

Plaintiff Dennis Kozak ("Plaintiff") brings this action seeking contribution and indemnity from defendant Pacific Summa Environmental Corp. ("Pacific Summa") and its successor Aries Resource Corp. ("Aries") (collectively, "Defendants"). Defendants move to dismiss the Complaint under Federal Rules of Civil Procedure 12(b)(2) and 12(b)(6). For the reasons stated below, the Complaint is dismissed for failure to allege subject matter jurisdiction.

BACKGROUND

The following facts are taken from the Complaint and will be taken as true for purposes of this motion. Plaintiff was formerly the president and chief executive officer of Pacific Summa while it maintained offices in Nesconset, New York. Plaintiff resigned from his positions on March 8, 1998, after which Pacific Summa closed its New York operations and relocated to Vancouver, British Columbia, Canada.

While Plaintiff was president and chief executive officer of Pacific Summa, Pacific Summa was the defendant in a litigation pending in Anchorage, Alaska. Plaintiff was not a party to this litigation. Pacific Summa retained the services of Bogle & Gates P.L.L.C. ("Bogle & Gates") to provide it with legal representation in the Alaska litigation. By personal guarantee dated October 3, 1996, Plaintiff guaranteed the legal fees that were due and owing and to be incurred by Bogle & Gates.

Thereafter, Pacific Summa failed to pay legal fees to Bogle and Gates. Bogle and Gates sued both Pacific Summa and Plaintiff in the Superior Court for the State of Alaska, Third Judicial District at Anchorage to recover its fees. On January 5, 1999, Bogle and Gates was awarded a judgment against Pacific Summa and Plaintiff. The judgment reads as follows:

[J]udgment shall be entered in favor of Bogle & Gates, P.L.L.C. against Pacific Summa Environmental Corporation and Dennis Kozak, jointly and severally, in the principal amount of $71,687.22, plus prejudgment interest at the rate of 8.0% per annum from November 1, 1996, in the amount of $11,703.95 for a total judgment of $83,391.17 which amount shall accrue interest at the rate of 8.0% per annum until this judgment is paid in full. (Compl. ¶ 8.)

Bogle & Gates commenced an action in the Supreme Court of the State of New York, Suffolk County, against Plaintiff seeking to enforce the judgment issued by the Superior Court for the State of Alaska. In connection therewith, Plaintiff's bank account has been frozen and Bogle & Gates is seeking to sell Plaintiff's interest in his marital residence in satisfaction of the outstanding judgment.

On October 18, 2006, Plaintiff filed the instant lawsuit seeking "indemnification and/or reimbursement of any and all mon[ies] due and owing on the [Alaskan] judgment." (Compl. ¶ 10.) The Complaint also seeks an order directing Pacific Summa and Aries "to provide contribution in satisfaction of th[e] judgment amount." (Id. ¶ 13.)

DISCUSSION

Although neither party addressed the court's subject matter jurisdiction, the Court raises the issue sua sponte. See Franceskin v. Credit Suisse, 214 F.3d 253, 257 (2d Cir. 2000) ("[T]he Court may examine subject matter jurisdiction, sua sponte, at any stage of the proceeding.") (citations and internal quotation marks omitted); see also Fed. R. Civ. P. 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action."). Jurisdiction is premised upon diversity jurisdiction pursuant to 28 U.S.C. § 1332. (Compl. ¶ 5.) The diversity jurisdiction statute provides in relevant part:

(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive ...


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