American Safety Table Co. v. Schreiber & Goldberg, Inc.
| Citation | 320 F. Supp. 603 |
| Decision Date | 30 November 1970 |
| Docket Number | No. 70 Civ. 3664.,70 Civ. 3664. |
| Parties | AMERICAN SAFETY TABLE COMPANY, Plaintiff, v. SCHREIBER & GOLDBERG, INC., Alvin Solomon, Joseph Schreiber and David Goldberg, individually and trading as Schreiber & Goldberg, Eleanor Goldberg, individually and as executrix of the Estate of David Goldberg, deceased, Lena Schreiber, and Ruth Ribak, as Executrix of the Estate of Alter Ribak, deceased, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Otterbourg, Steindler, Houston & Rosen, New York City, for plaintiff; Frederic P. Houston, and Irwin B. Robins, New York City, of counsel.
Mischa Lazoff, New York City, for defendants Alvin Solomon and Schreiber & Goldberg, Inc.
In this suit to enforce a judgment obtained in this court against certain defendants by setting aside an alleged fraudulent conveyance made by them to other defendants, and for an accounting and damages, defendants Schreiber & Goldberg, Inc. ("S & G, Inc.") and Alvin Solomon ("Solomon"), its president and principal stockholder, move to dismiss the complaint for lack of jurisdiction over the parties and subject matter and for failure to state a cause of action, or, in the alternative, for a severance of claims against them. For the reasons stated below the motion is denied in its entirety.
Our jurisdiction is invoked on grounds of diversity of citizenship and as ancillary and pendent to the enforcement of a judgment of this court obtained in a suit over which we have federal question and federal statutory jurisdiction. See 28 U.S.C. §§ 1331, 1332, 1338, and 1355. Diversity jurisdiction is based on the fact that plaintiff is a Pennsylvania corporation, all defendants are citizens of New York or Florida, and the amount in controversy exceeds $10,000. The essential facts alleged in the complaint, which are accepted for the purposes of the motion except to the extent disproved by movants, United States v. Bimba, 233 F.Supp. 966 (E.D.N.Y.1964), are as follows:
In 1952 plaintiff's predecessor, American Safety Table Company, Inc. ("Amco"), a Pennsylvania corporation, brought an action in this court against Joseph Schreiber and David Goldberg, trading as a New York partnership, Schreiber & Goldberg ("S & G (Partn.)"), seeking damages for patent infringement and unfair competition. Judgment was awarded in plaintiff's favor for patent infringement. Following an appeal (which reinstated the unfair competition claim), injunctive relief and an accounting were affirmed and on February 24, 1960, an interlocutory judgment was entered against Schreiber, Goldberg and S & G (Partn.) which appointed a Special Master to fix Amco's damages. After another appeal resulted in affirmance of this interlocutory judgment, a second such judgment was entered by us on April 16, 1961. A report of the Special Master, rendered on June 30, 1966, was adopted by this court on January 30, 1968, and on June 17, 1968, judgment was entered in favor of plaintiff as Amco's successor against Schreiber, Goldberg and S & G (Partn.) for $107,569.39. Although the judgment is now final, it remains outstanding and unpaid.
It is alleged that on or about June 16, 1961, Schreiber, Goldberg and S & G (Partn.), shortly after the entry of the second interlocutory judgment, fraudulently transferred the assets of S & G (Partn.) to Solomon and to one Alter Ribak (since deceased, whose estate is joined as defendant herein) without full and fair consideration and with intent to hinder and defraud creditors, including Amco, all pursuant to a conspiracy between Schreiber, Goldberg, S & G (Partn.), Solomon and Ribak. It is further alleged that three days later, on June 19, 1961, Solomon and Ribak fraudulently conveyed the assets of S & G (Partn.) to S & G, Inc., a corporation which continues the business and that defendants Solomon and S & G, Inc., having assumed the obligations of S & G (Partn...
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