Astor-Honor, Inc. v. Grosset & Dunlap, Inc., No. 702

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtLUMBARD, , FRIENDLY and KAUFMAN, Circuit
Citation441 F.2d 627
Decision Date21 April 1971
Docket NumberDocket 35241.,No. 702
PartiesASTOR-HONOR, INC., Plaintiff-Appellant, v. GROSSET & DUNLAP, INC., Defendant-Appellee, and William F. Buckley, Jr., Bantam Books, Inc. and Arlington House, Inc., Defendants.

441 F.2d 627 (1971)

ASTOR-HONOR, INC., Plaintiff-Appellant,
v.
GROSSET & DUNLAP, INC., Defendant-Appellee, and
William F. Buckley, Jr., Bantam Books, Inc. and Arlington House, Inc., Defendants.

No. 702, Docket 35241.

United States Court of Appeals, Second Circuit.

Submitted March 30, 1971.

Decided April 21, 1971.


441 F.2d 628

Gabriel I. Levy, New York City, for plaintiff-appellant.

Marshall C. Berger, New York City (Weil, Gotshal & Manges, New York City, of counsel), for defendant-appellee.

Before LUMBARD, Chief Judge, FRIENDLY and KAUFMAN, Circuit Judges.

FRIENDLY, Circuit Judge:

Astor-Honor, Inc. ("Astor"), a corporation organized and having its principal place of business in New York, brought this action in the District Court for the Southern District of New York. The defendants were William F. Buckley, Jr., a citizen of Connecticut, and three corporations all organized in New York and, like Astor, having their principal places of business in the Southern District. These were Grosset & Dunlap, Inc. ("Grosset"); its wholly-owned subsidiary, Bantam Books, Inc. ("Bantam"); and Arlington House, Inc. ("Arlington"). The gravamen of the complaint was this: By a contract dated July 10, 1959, Buckley had granted Astor rights, which for present purposes can be characterized as exclusive, to publish and license publication of his book "Up From Liberalism." In accordance with the contract Astor registered the copyright in Buckley's name and published the book. However, on August 21, 1967, Buckley purported to terminate the contract and subsequently entered into agreements with Bantam and Arlington for publication and sale of the book.

The complaint contained four counts. The first, asserted against Buckley alone, was essentially for breach of contract although it also asserted that his permitting publication of the book by Bantam and Arlington constituted an unfair trade practice and unfair competition. The second count, asserted against Buckley and Bantam, and the fourth, asserted against Buckley and Arlington, were essentially for copyright infringment, although allegations of unfair trade practices and unfair competition were again thrown in for good measure. The third count, with which we are concerned, alleged a conspiracy on the part of Buckley, Grosset and Bantam to infringe Astor's copyright. Although the count is opaquely worded, its theory seems to be this: In December 1966, Astor entered into agreements appointing Grosset exclusive distributor of all books published by Astor. At that time, Astor owed Buckley $1,563.25 with respect to "Up From Liberalism." Grosset agreed to pay this obligation to Buckley out of monies that would become due from it to Astor under the distribution agreements. In February 1967, Grosset advised Astor it was doing this. However, with Buckley's consent, Grosset made no such payments, although Buckley led Astor to believe that he had been paid. Then, in August 1967, with non-payment of royalties as a pretext, Buckley notified Astor that he was terminating the exclusive publication contract and entered into an agreement licensing Bantam to publish the book, which Bantam did the following year. Although Buckley and Bantam were charged incidentally in this

441 F.2d 629
count with copyright infringement, as they had been in the second, the major claim, and the only one lodged in so many words against Grosset, was that the conspiracy constituted an unfair trade practice and unfair competition on the part of all three defendants

Grosset moved to dismiss the third count with respect to it. It contended that the claim was one which arose under state law and as to which the complete diversity of citizenship required by 28 U.S.C. § 1332(a) did not exist, and that, although the third count might be regarded as "pendent" with respect to Buckley and Bantam who were properly made defendants in other...

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56 practice notes
  • Maltais v. United States, No. 77-CV-98.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • October 19, 1977
    ...L.Ed.2d 815 (1972); Leather's Best, Inc. v. S.S. Mormaclynx, supra, 451 F.2d at 809-11; Astor-Honor, Inc. v. Grosset & Dunlap, Inc., 441 F.2d 627 (2d Cir. 1971). See Kavit v. A. L. Stamm & Co., 491 F.2d 1176 (2d Cir. 1974) (Friendly, J.). The only decision by the Court of Appeals, S......
  • McLean v. Mathews, No. 76 Civ. 1572.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • May 19, 1976
    ...here would we believe, unjustifiably tax both the parties and the courts.8 See Astor-Honor Inc. v. Grosset & Dunlop, Inc., 441 F.2d 627, 629-630 (2d Cir. Finally, we note that here we have decided to permit both claim and party pendency, a decision sanctioned by this circuit in Almenare......
  • Neilan v. Value Vacations, Inc., No. 84 Civ. 6672-CLB.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • March 8, 1985
    ...satisfied. See generally Leather's Best v. S.S. Mormaclynx, 451 F.2d 800 (2d Cir.1971); Astor-Honor, Inc. v. Grosset & Dunlap, Inc., 441 F.2d 627 (1971); and Uniroyal, Inc. v. Heller, 65 F.R.D. 83 (S.D.N.Y.1974). In Leather's Best the Court of Appeals held that a plaintiff properly in f......
  • Butcher v. Robertshaw Controls Co., Civ. No. HM81-72.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • July 31, 1981
    ...(Friendly, J.), cert. denied, 405 U.S. 944, 92 S.Ct. 962, 30 L.Ed.2d 815 (1972); Astor-Honor, Inc. v. Grosset & Dunlap, Inc., 441 F.2d 627 (2d Cir.1971) (Friendly, J.). In contrast, the Ninth Circuit has stead-fastly adhered to the position that Gibbs was aimed at joinder of claims and ......
  • Request a trial to view additional results
56 cases
  • Maltais v. United States, No. 77-CV-98.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • October 19, 1977
    ...L.Ed.2d 815 (1972); Leather's Best, Inc. v. S.S. Mormaclynx, supra, 451 F.2d at 809-11; Astor-Honor, Inc. v. Grosset & Dunlap, Inc., 441 F.2d 627 (2d Cir. 1971). See Kavit v. A. L. Stamm & Co., 491 F.2d 1176 (2d Cir. 1974) (Friendly, J.). The only decision by the Court of Appeals, S......
  • McLean v. Mathews, No. 76 Civ. 1572.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • May 19, 1976
    ...here would we believe, unjustifiably tax both the parties and the courts.8 See Astor-Honor Inc. v. Grosset & Dunlop, Inc., 441 F.2d 627, 629-630 (2d Cir. Finally, we note that here we have decided to permit both claim and party pendency, a decision sanctioned by this circuit in Almenare......
  • Neilan v. Value Vacations, Inc., No. 84 Civ. 6672-CLB.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • March 8, 1985
    ...satisfied. See generally Leather's Best v. S.S. Mormaclynx, 451 F.2d 800 (2d Cir.1971); Astor-Honor, Inc. v. Grosset & Dunlap, Inc., 441 F.2d 627 (1971); and Uniroyal, Inc. v. Heller, 65 F.R.D. 83 (S.D.N.Y.1974). In Leather's Best the Court of Appeals held that a plaintiff properly in f......
  • Butcher v. Robertshaw Controls Co., Civ. No. HM81-72.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • July 31, 1981
    ...(Friendly, J.), cert. denied, 405 U.S. 944, 92 S.Ct. 962, 30 L.Ed.2d 815 (1972); Astor-Honor, Inc. v. Grosset & Dunlap, Inc., 441 F.2d 627 (2d Cir.1971) (Friendly, J.). In contrast, the Ninth Circuit has stead-fastly adhered to the position that Gibbs was aimed at joinder of claims and ......
  • Request a trial to view additional results

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