Fort Howard Paper Co. v. William D. Witter, Inc., 83 Civ. 6588 (JFK).
| Decision Date | 18 January 1984 |
| Docket Number | No. 83 Civ. 6588 (JFK).,83 Civ. 6588 (JFK). |
| Citation | 578 F. Supp. 301 |
| Parties | FORT HOWARD PAPER COMPANY, Plaintiff, v. WILLIAM D. WITTER, INC., Thomson McKinnon Securities, Inc., and Charles Huber, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Donovan, Leisure, Newton & Irvine, New York City, for plaintiff; Sanford M. Litvack and Valerie Cohen, New York City, of counsel.
Townley & Updike, New York City, for defendants; Elliot Paskoff and Sherri Venokur, New York City, of counsel.
(as amended)
Plaintiff, Fort Howard Paper Company, Inc., seeks a declaratory judgment under the provisions of 28 U.S.C. Section 2201 and rule 57 of the Federal Rules of Civil Procedure. Defendants, Charles Huber, et al. move pursuant to rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the complaint or, in the alternative, to transfer the action to the Eastern District of Wisconsin, or to stay the declaratory judgment action.
The dispute arises out of the following set of facts. During the period from early 1980 through June of 1983, a series of communications took place between Huber and plaintiff and between them and representatives of Maryland Cup. Defendants allege that those activities entitle them to a finder's fee in connection with the merger agreed to in June of 1983. There is no written agreement to support this claim.
In July of 1983, following the announcement of the planned merger, defendant Huber contacted Merrill Bank, then Chairman of the Board of Maryland Cup, claiming he was owed a finder's fee by Fort Howard and intended to sue in Wisconsin to recover it. Subsequently, Mr. Huber attempted to contact Paul J. Shierl, Fort Howard's President and CEO, to discuss the same subject. In early August of 1983, John Leighton, Huber's attorney, contacted plaintiff's counsel claiming that his clients, Huber and Witter, were entitled to a finder's fee and raising the possibility of settlement of the claim without litigation. Plaintiff's counsel agreed to investigate the situation. On August 18, 1983, defendants' counsel wrote to plaintiff formally taking exception to the Schedule 13D filed by Fort Howard with the SEC (which stated there was no finder with respect to the merger), and asserting their claim. On August 23, 1983, plaintiff's counsel contacted defendants' counsel and advised him of the view that it did not owe defendants any finder's fee. This position was confirmed by letter dated September 2, 1983.
On September 6, 1983, plaintiff, Fort Howard Paper Company, a Delaware corporation with its principal place of business in Wisconsin, filed this suit in the Southern District of New York. The complaint alleges that defendant, William D. Witter, Inc., a New York corporation, defendant, Thomson McKinnon Securities, Inc., a New York corporation, and defendant, Charles Huber, a New York resident*, formerly a vice president of Thomson McKinnon and currently Managing Director of Witter, claim a finder's fee for work allegedly performed by Huber in connection with Fort Howard's June 27, 1983 agreement to merge with Maryland Cup Corporation; that Fort Howard denies any liability to defendants for such a fee, and seeks a declaratory judgment that plaintiff has no liability to any or all defendants with respect to defendants' claims for finder's fee or other compensation as a result of plaintiff's merger with Maryland Cup.
On October 20, 1983, plaintiff's general counsel travelled from Wisconsin to New York to attend a settlement conference at the office of Mr. Litvack, plaintiff's attorney. On November 23, 1983, defendant Huber filed suit against Fort Howard and Maryland Cup Corporation in the Eastern District of Wisconsin seeking five million, seven hundred thousand dollars, together with interest as payment for its alleged services to Fort Howard and Maryland Cup in connection with their merger.
On November 29, 1983, defendants in the instant case moved this Court for an order (1) dismissing the complaint pursuant to rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted within the meaning of the Declaratory Judgment Act; or, in the alternative, (2) transferring this action to the United States District Court for the Eastern District of Wisconsin, pursuant to 28 U.S.C. Section 1404; or (3) staying this action pending completion of the action in the United...
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Fort Howard Paper Co. v. William D. Witter, Inc.
...appeal also seeks review of Judge Keenan's denial of appellant's motion to stay, dismiss or transfer this declaratory judgment action, 578 F.Supp. 301. We affirm Judge Keenan's ruling on the motion to stay, dismiss or transfer the declaratory judgment action. We also affirm Judge Keenan's d......
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...resolving any `uncertainty' or `insecurity' they may feel remains between the parties." Fort Howard Paper Company v. William D. Witter, Inc., 578 F.Supp. 301, 302-303 (S.D.N.Y. 1984). Next, Alcide contends that this Court lacks jurisdiction because there is not an actual controversy regardi......