Clarkson Co., Ltd. v. Shaheen, 22

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Citation544 F.2d 624
Docket NumberNo. 22,D,22
PartiesThe CLARKSON CO., LTD., as Trustee in Bankruptcy, appointed by the Supreme Court of the Province of Newfoundland, of the property of Newfoundland Refining Co., Ltd., and Provincial Refining Co., Ltd., Appellees, v. John M. SHAHEEN et al., Appellants. 1 ocket 76-5018.
Decision Date01 November 1976

Page 624

544 F.2d 624
The CLARKSON CO., LTD., as Trustee in Bankruptcy, appointed
by the Supreme Court of the Province of Newfoundland, of the
property of Newfoundland Refining Co., Ltd., and Provincial
Refining Co., Ltd., Appellees,
John M. SHAHEEN et al., Appellants. 1
No. 22, Docket 76-5018.
United States Court of Appeals,
Second Circuit.
Argued Sept. 13, 1976.
Decided Nov. 1, 1976.

Page 626

Richard deY. Manning, New York City (Manning, Carey & Redmond, Arthur C. Schupbach, New York City, of counsel), for appellants.

Jeffrey A. Barist, New York City (White & Case, Edna R. Sussman, New York City, of counsel), for appellees.

Before SMITH, OAKES and MESKILL, Circuit Judges.

OAKES, Circuit Judge:

This suit was brought by a Canadian trustee in bankruptcy to obtain records located in the New York offices of the trustee's two Canadian bankrupt corporations and in the possession of their officials, who are the appellants here. The United States District Court for the Southern District of New York, Richard Owen, Judge, granted to the trustee a preliminary injunction that required appellants to turn over the records and restrained them from disbursing or secreting any corporate property in, or coming into, their hands. This appeal lies by right from the grant of that injunction. 28 U.S.C. § 1292(a)(1).

Provincial Refining Co., Ltd. (PRC), and Newfoundland Refining Co., Ltd. (NRC), are interrelated corporations, commonly owned, organized under the laws of the Province of Newfoundland, Canada; they have executive offices and do business in New York. PRC owns and operates a petroleum refinery at Come-by-Chance, Newfoundland, and NRC manages the operation of the refinery. On March 12, 1976, after a week-long adversary hearing at which PRC and NRC were represented by counsel, the Supreme Court of Newfoundland (Trial Division) adjudicated the two corporations bankrupt and appointed appellee, The Clarkson Co., Ltd. (Clarkson), as trustee of both. Canadian law requires a trustee to take possession of the records of a bankrupt corporation, 2 and Clarkson brought the present suit for that purpose. Named as

Page 627

defendants were appellants here, who, as officers of the bankrupts, had custody or control of the records in New York.

A temporary restraining order preserving the records and directing the appellants to give Clarkson immediate and continuing access to them was issued by Judge Owen in federal district court on March 23, 1976, the day the federal complaint was filed. On March 24, appellants' attorney obtained an ex parte order in the New York Supreme Court in order to prevent Clarkson from further examining PRC and NRC records. 3 Immediately thereafter, Clarkson representatives were denied access to the books and records. On March 25, the state court order was modified at Clarkson's request so as not to restrain Clarkson from taking action pursuant to the federal court order. Appellants' request for the state order followed by their denial of access to Clarkson on March 24 led to the grant of a preliminary injunction by Judge Owen below on April 1, 1976, after notice and hearing. On that date the district court held both that the trustee had a lawful right to all property of the bankrupts and that "there is enormous risk of irreparable injury to the trustee" because the records "may well be destroyed." No security against the possibility of wrongful restraint under Fed.R.Civ.P. 65(c) was sought by appellants or ordered by the court. Notice of appeal was duly filed. 4

I. Jurisdiction.

Initially, as we are bound to do, Fed.R.Civ.P. 12(h)(3); Mansfield, Coldwater & Lake Michigan Ry. v. Swan, 111 U.S. 379, 4 S.Ct. 510, 28 L.Ed. 462 (1884), we raise on our own motion the question of jurisdiction, which is alleged on the ground of diversity of citizenship under 28 U.S.C. § 1332. As a matter of American bankruptcy law, the citizenship of the bankrupt, rather than that of the trustee in bankruptcy, is determinative for purposes of diversity jurisdiction. Bankruptcy Act, § 23, 11 U.S.C. § 46; Bush v. Elliott, 202 U.S. 477, 26 S.Ct. 668, 50 L.Ed. 1114 (1906); Tilton v. Model Taxi

Page 628

Corp., 112 F.2d 86, 88 (2d Cir. 1940); 2 Collier on Bankruptcy P 23.13, at 596 (14th ed. 1975). If this rule governed here, a question would arise as to whether PRC and NRC are to be treated as citizens of New York or Newfoundland. 5 It is also true, however, that the determination of diversity citizenship under the Federal Bankruptcy Act is in derogation of the general common law rule that courts will look to the citizenship of a trustee, receiver, administrator, or other representative, and not the party which he represents, in determining diversity jurisdiction. Mecom v. Fitzsimmons Drilling Co., 284 U.S. 183, 186, 52 S.Ct. 84, 76 L.Ed. 233 (1931); New Orleans v. Gaines's Administrator, 138 U.S. 595, 606, 11 S.Ct. 428, 34 L.Ed. 1102 (1891); Nunn v. Feltinton, 294 F.2d 450, 453 (5th Cir. 1961), cert. denied, 369 U.S. 817, 82 S.Ct. 829, 7 L.Ed.2d 784 (1962); Nolan v. Transocean Air Lines, 276 F.2d 280, 283 n. 3 (2d Cir. 1960) (Friendly, J.), vacated on other grounds, 365 U.S. 293, 81 S.Ct. 555, 5 L.Ed.2d 571 (1961); Waxman v. Kealoha, 296 F.Supp. 1190, 1192 (D.Hawaii 1969); 13 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 3606, at 634-35 (1975). 6 Thus, a trustee appointed under a law other than the Federal Bankruptcy Act may use his own citizenship in claiming diversity jurisdiction unless that law imposes its own restrictions. Since Clarkson was duly appointed a trustee in bankruptcy under the laws of Canada and appellants are citizens of New York, we hold that diversity jurisdiction exists in this case. Accord, Waxman v. Kealoha, supra.

A related point, which in a sense goes to jurisdiction, involves this court's equitable responsibility, under Fed.R.Civ.P. 19, to dismiss a suit when the absence of an indispensable party makes impossible a just resolution of the entire action. See Kamhi v. Cohen, 512 F.2d 1051, 1053-55 (2d Cir. 1975); 7 C. Wright & A. Miller, Federal Practice & Procedure § 1611 (1972). Appellants urge that this action cannot be justly adjudicated without the presence as parties of PRC and NRC, and that, since their joinder would destroy diversity jurisdiction, the action must be dismissed. See id. § 1610. Under the flexible test governing Rule 19 questions, enunciated in Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 118-19, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968) (Harlan, J.), we find that the presence of PRC and NRC is irrelevant to a just resolution of the case. While it is true that the records sought are those of the bankrupt corporations, it is also true that the trustee in bankruptcy seeks them in connection with the administration of the bankrupt estates, and that the two corporations

Page 629

have already been adjudicated bankrupt. There is here no possibility of prejudice through multiple suits; no one's rights are being or will be injured. The bankruptcy trustee, as appellants seem consistently to forget, is a fiduciary accountable to a court of law. If on appeal the adjudication of bankruptcy is overturned, the trustee would, of course, be duty-bound to return the records to their rightful owners, who would then be the on-going corporations, not the appellants herein. But in the interim, since it is the duty of the trustee to marshal the assets of the bankrupt companies and to examine the corporate records toward that end, and since it is the appellants who must be sued to obtain those records, we hold that PRC and NRC are not essential parties here.

II. Abstention.

Appellants next urge that the federal courts should stay their proceedings in this case 7 until various of appellants' claims are determined in the pending state court proceedings (the SNR suit) described in note 3 supra. While the law in this circuit is clear that a district court may stay federal proceedings to allow resolution of a similar cause of action pending in state court, see, e. g., Klein v. Walston & Co., 432 F.2d 936, 937 (2d Cir. 1970) (per curiam); Mottolese v. Kaufman, 176 F.2d 301, 302-03 (2d Cir. 1949) (L. Hand, J.), it is equally clear that a district court has wide discretion, and in some cases a duty, not to abstain merely because a state suit is pending in which some of the same issues may be decided, see, e. g., Burch v. Carmody, 377 F.Supp. 1157, 1158-59 (E.D.N.Y.1974); Loeb v. Whittaker Corp., 333 F.Supp. 484, 489-90 (S.D.N.Y.1971).

We do not think that this discretion was in any sense abused here. The causes of action and relief requested are different in the state and federal suits, and the questions of New York law involved are not unsettled ones, as to which deference by the federal courts to the state courts would be more appropriate. See County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188-90, 196-97, 79 S.Ct. 1060, 3 L.Ed.2d 1163 (1959). We see no way in which this federal proceeding, relating solely to the records of the two bankrupt companies, could be thought to be an interference with the state court proceeding, in which damages are being sought for an alleged conspiracy and in which an injunction was unsuccessfully sought against the bankruptcy proceedings. Nor is there a particular res already being administered by a state court, so as to implicate the specialized doctrine of Princess Lida v. Thompson, 305 U.S. 456, 466, 59 S.Ct. 275, 83 L.Ed. 285 (1939). Related claims have been made in state court, but corporate records are in issue only in federal court. See generally Currie, The Federal Courts and the American Law Institute (II), 36 U.Chi.L.Rev. 268, 335 (1969).

III. Comity.

Having decided that the district court properly exercised its discretion not to abstain, we reach the central issue in this case: whether the Canadian bankruptcy proceeding may be collaterally attacked in this court. The doctrine of comity, Hilton v. Guyot, 159...

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