Astor-Honor, Inc. v. Grosset & Dunlap, Inc., 702

• Decision Date: 21 April 1971
• Docket Number: Docket 35241.,No. 702,702
• Citation: 441 F.2d 627
• Parties: ASTOR-HONOR, INC., Plaintiff-Appellant, v. GROSSET & DUNLAP, INC., Defendant-Appellee, and William F. Buckley, Jr., Bantam Books, Inc. and Arlington House, Inc., Defendants.
• Court: U.S. Court of Appeals — Second Circuit

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.

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 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 counts, the pendent jurisdiction doctrine does not empower a federal court to render judgment against a defendant who was not a party to any claim of which the court had independent jurisdiction. Astor did not argue either in the district court or here that the third count asserted a claim against Grosset arising under the copyright law, 28 U.S.C. § 1338(a), although we would not have regarded such a contention as frivolous. See Nimmer on Copyright § 134.1 (1970). The district judge accepted, in all likelihood correctly, Astor's characterization of its claim for inducing breach of contract as one for "unfair competition" within 28 U.S.C. § 1338(b).¹ See 2 Callmann, Unfair Competition, Trademarks and Monopolies, ch. 9 (3d ed. 1968); Prosser, Torts § 123 (3d ed. 1964). He nevertheless granted the motion, relying on "the general proposition that a state claim against one defendant cannot append to a federal claim against another" and perceiving no reason why the general rule should not apply to a case coming within the letter of § 1338(b). From this ruling Astor has appealed.

There are indeed many statements supporting "the general proposition" enunciated by the district court, notably, for our purposes, that in Wasserman v. Perugini, 173 F.2d 305, 306 (2 Cir. 1949), where this court declared that in the absence of diversity, a federal court did not have jurisdiction over individual defendants on a state tort claim arising from the same accident which was the basis of a separate count against the United States under the Federal Tort Claims Act. However, "cases antedating United Mine Workers (of America) v. Gibbs, 383 U.S. 715 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), that denied judicial power, i. e., jurisdiction, over the pendent claim are suspect as authority." 3A Moore, Federal Practice ¶ 18.071.-4 (1970). The Gibbs Court described the proper test of pendent jurisdiction as follows, 383 U.S. at 725, 86 S.Ct. at 1138:

The state and federal claims must derive from a common nucleus of operative fact. But if, considered without regard to their federal or state character, a plaintiff\'s claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole.

Although the pendent claim in Gibbs did not include a party not named in the federal claim, Mr. Justice Brennan's language and the common sense considerations underlying it seem broad enough to cover that problem also. See Note, UMW v. Gibbs and Pendent Jurisdiction, 81 Harv.L.Rev. 657, 664 (1968). A plaintiff with claims against three alleged conspirators for the same set of acts "would ordinarily be expected to try them all in one judicial proceeding," assuming that all defendants were subject to the process of the court.² It would be an...