The opinion of the court was delivered by: Paul A. Engelmayer, District Judge:
The Court has received plaintiff's letter, dated August 14, 2012, seeking permission to move to dismiss defendants' counterclaims; defendants' letter in response, dated August 20, 2012; and plaintiff's reply, dated August 20, 2012. The parties' letters are attached here.
The Court construes plaintiff's August 14 letter as a motion to dismiss the counterclaims set out in the Amended Answer (Dkt. 20), the defendants' August 20 letter as opposition to that motion, and plaintiff's August 20 letter as a reply. For the reasons that follow, the Court grants plaintiff's motion to dismiss defendants' counterclaims.
The Complaint in this case contains two causes of action. Both are tightly focused on the issue whether defendants were entitled to retain approximately $11 million in Escrow Funds after the May 15, 2012 deadline set in the Merger Agreement for relinquishing those funds to plaintiff. First is a breach of contract claim. This claim alleges that defendants breached the Merger Agreement when they failed to direct the escrow agent to release the Escrow Funds to plaintiff. In fact, plaintiff alleges that defendants had not "actually suffered or incurred" a Loss as defined in the Merger Agreement, as of the May 15, 2012 deadline, so as to justify retention of the Escrow Funds. Thus, the contract claim alleges, defendants were obliged to direct the release of those funds. Second, plaintiff seeks declaratory relief to the same effect. See Compl. ¶¶ 29--44.
On June 21, 2012, the Court held an extended phone conference with the parties, arising out of plaintiff's request to move for summary judgment without the benefit of discovery. The Court denied that request and granted defendants' request for discovery. However, the Court limited the scope of discovery to the information known to defendants, as of May 15, 2012, which formed the basis for defendants' assertion of a right to retain the funds in escrow beyond the May 15, 2012 deadline set in the Merger Agreement. The discovery permitted by the Court focused on whether defendants had paid any money, were formally obliged to pay any money, or were subject to actual claims by a taxing authority, with respect to the 18 alleged tax claims identified in defendants' "Indemnity Demand Notice" issued in ostensible support of their retention of the Escrow Funds.
However, in the discovery conference, the Court forcefully rejected defendants' persistent attempts to obtain broader discovery, including from plaintiffs, on the underlying issues of whether colorable tax claims might be developed in the future that could support a claim of indemnification under the Merger Agreement. Discovery seeking to establish such liability was irrelevant, the Court ruled, because the only issue in the case is whether it was proper under the Merger Agreement for defendants to retain the Escrow Funds after May 15, 2012.
On July 25, 2012, defendants brought counterclaims for (1) indemnification under the Merger Agreement; and (2) a declaratory judgment to the same effect, with respect to all 18 claims listed in the Indemnity Demand Notice. See Dkt. 20.
In a July 27, 2012 Order, the Court denied defendants' request to extend the deadline and scope of discovery. The Court reiterated that, to resolve plaintiff's claims, it is not necessary for defendants to probe whether bona fide claims by defendants for indemnification may one day arise. Rather, the issue in this case is solely whether defendants possessed a valid basis, as of May 15, 2012, to retain the Escrow Funds. "[W]hether indemnification will, at some future date, be required" under the Merger Agreement does "not bear on this narrow issue." Dkt. 21.
Following that Order, the Court received plaintiff's August 14, 2012 letter, seeking leave to move to dismiss defendants' counterclaims; defendants' response; and plaintiff's reply.
Plaintiffs move to dismiss defendants' counterclaims seeking to establish plaintiff's duty of indemnification, on the grounds that these claims are premature and not ripe for adjudication. Defendants respond that the counterclaims are not premature because they are "compulsory counterclaims" within the meaning of Federal Rule of Civil Procedure 13.
Rule 13(a) provides: "A pleading must state as a counterclaim any claim that-at the time of its service-the pleader has against an opposing party if the claim: (A) arises out of the transaction or occurrence that is the subject matter of the opposing party's claim; and (B) does not require adding another party over whom the court cannot acquire jurisdiction." Rule 13(b), in turn, provides that "any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party's claim" is a permissive counterclaim.
The test under Rule 13(a) for "determining a compulsory counterclaim is identical to the Rule 13(g) test for cross-claims." Federman v. Empire Fire and Marine Ins. Co., 597 F.2d 798, 813 (2d Cir. 1979). "To determine whether a cross-claim arises out of the same transaction or occurrence that is the subject matter of the original action . . . the court examines (1) the identity of facts between the initial claim and the cross-claim; (2) mutuality of proof; and (3) the logical relationship between the original claim and the cross-claim." Bank of Montreal v. Optionable, Inc., No. 09-cv-7557, 2011 WL 4063324, at *3 (S.D.N.Y. Aug. 12, 2011) (citing Federman, 597 F.2d at 812). "Although the 'logical relationship' test does not require 'an absolute identity of factual backgrounds,' the 'essential facts of the claims [must be] so logically connected that considerations of judicial economy and ...