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AngioDynamics, Inc. v. Biolitec, Inc.

United States Court of Appeals, Second Circuit

January 9, 2015

AngioDynamics, Inc., Plaintiff-Appellee,
v.
Biolitec, Inc., Defendant-Counter-Claimant-Counter-Defendant-Appellant,
v.
Biolitec FZ, Movant

Submission: August 22, 2013.

Defendant-Appellant Biolitec, Inc. and plaintiff-appellee AngioDynamics, Inc. stipulate, pursuant to Federal Rule of Appellate Procedure 42(b), to withdraw this appeal from the September 28, 2012 partial final judgment entered by the United States District Court for the Northern District of New York (Lawrence E. Kahn, J.). Non-party Biolitec FZ moves pursuant to Federal Rule of Appellate Procedure 43(b) to be substituted for Biolitec, Inc. as a party-appellant. Biolitec, Inc. and AngioDynamics, Inc. oppose the motion.

We decline to exercise our discretion to permit substitution because Biolitec FZ has not demonstrated that it " needs to be substituted" within the meaning of Rule 43(b). We therefore deny the substitution motion, approve the stipulation, and dismiss the appeal.

William Edward Reynolds, Bond, Schoeneck & King, PLLC, Albany, NY, for Plaintiff-Appellee.

David Merrill Posner, Otterbourg, Steindler, Houston & Rosen, P.C., New York, NY, for Defendant-Counter-Claimant-Counter-Defendant-Appellant.

Edward Griffith, Bolatti & Griffith LLP, New York, NY, for Movant.

Before: Cabranes, Hall, Chin, Circuit Judges.

OPINION

PER CURIAM:

Non-party Biolitec F.Z., LLC (" Biolitec FZ" ) moves pursuant to Federal Rule of Appellate Procedure 43(b) to be substituted for or joined with Biolitec, Inc. as a party-appellant in appealing the September 28, 2012 partial final judgment entered by the United States District Court for the Northern District of New York (Lawrence E. Kahn, J.). Named parties Biolitec, Inc. (" Biolitec" ) and AngioDynamics, Inc. (" AngioDynamics" ) oppose the motion and stipulate to withdraw the appeal without costs and without attorneys' fees pursuant to Federal Rule of Appellate Procedure 42(b). We hold that substitution is not warranted in this case because Biolitec FZ has not demonstrated that it " needs to be substituted" within the meaning of Rule 43(b).

Page 551

We therefore deny Biolitec FZ's motion, approve the stipulation, and dismiss the appeal.[1]

Background

In January 2008, AngioDynamics commenced a diversity action against Biolitec, alleging that Biolitec failed to fulfill its contractual obligation to defend or indemnify AngioDynamics for litigation expenses and losses resulting from AngioDynamics's distribution of Biolitec's products. In response, Biolitec filed four counterclaims seeking to recoup litigation expenses it claimed to have incurred to defend AngioDynamics in underlying litigation and that were not covered by a distribution contract. In September 2012, the United States District Court for the Northern District of New York (Lawrence E. Kahn, J.) granted partial judgment to AngioDynamics and certified the judgment for immediate appeal pursuant to Federal Rule of Civil Procedure 54(b). Biolitec timely appealed.

On January 22, 2013, during the pendency of this appeal, Biolitec filed a Chapter 11 bankruptcy petition in the United States Bankruptcy Court for the District of New Jersey. A schedule of Biolitec's assets in the bankruptcy action listed a " [c]laim against [AngioDynamics] for reimbursement of litigation fees, etc." Although this appeal was initially stayed due to the automatic stay imposed by the bankruptcy court pursuant to 11 U.S.C. ยง 362, the bankruptcy court later modified that stay to permit the appeal to proceed. The bankruptcy court also allowed the continuation of two other ...


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