RN Kelly Cotton Merchant, Inc. v. York, Civ. A. No. 861.

CourtUnited States District Courts. 11th Circuit. Middle District of Georgia
Writing for the CourtOWENS
Citation379 F. Supp. 1075
Docket NumberCiv. A. No. 861.
Decision Date18 October 1973
PartiesR. N. KELLY COTTON MERCHANT, INC., Plaintiff, v. Kenneth YORK et al., Defendants.

379 F. Supp. 1075

R. N. KELLY COTTON MERCHANT, INC., Plaintiff,
v.
Kenneth YORK et al., Defendants.

Civ. A. No. 861.

United States District Court, M. D. Georgia, Athens Division.

October 18, 1973.


379 F. Supp. 1076
COPYRIGHT MATERIAL OMITTED
379 F. Supp. 1077
Eugene A. Epting, Erwin, Epting, Gibson & Chilivis, Athens, Ga., for plaintiff

Robert M. Heard, E. Freeman Leverett, Elberton, Ga., for defendants.

OWENS, District Judge.

Plaintiff, a South Carolina corporation with its principal place of business in Anderson, South Carolina, seeks by its complaint to have certain contracts for the purchase of cotton Exhibits "A", "B", "C" and "D" declared valid and specifically enforced. Defendants are farmers who reside in Hart County, Georgia; they have responded and counterclaimed for a declaratory judgment declaring the contracts invalid and unenforceable. See 28 U.S.C. § 2201.

The case came on for a hearing on October 12, 1973, on plaintiff's motion for a preliminary injunction. Following presentation of evidence and argument of legal issues, counsel for all parties agreed that the case was ripe for final decision on the merits. See Rule 65(a) (2), Federal Rules of Civil Procedure. This constitutes the court's findings of facts and conclusions of law. See Rules 52(a), 65(d), Federal Rules of Civil Procedure.

There is complete diversity of citizenship between the parties, the amount in controversy far exceeds $10,000.00, exclusive of interest and costs and this court thus has jurisdiction. Title 28 U.S.C. § 1332.

Plaintiff made a contract with each of the defendants in March 1973 to purchase cotton which each of the defendants would grow this year. It is undisputed that Exhibits "A", "B", "C" and "D" are true copies of documents which were in fact executed by the respective parties. Defendants have, however, raised several defenses to this action brought to enforce these contracts.

Defendants contend that plaintiff cannot bring this action because plaintiff is not registered to do business in Georgia, that the contracts are too vague to be enforced, that the contracts are invalid under Ga.Code § 20-602, and that the contracts are invalid because the

379 F. Supp. 1078
cotton which was the subject matter of the sale was not in existence at the time the contracts were made. Defendants also contend that this court should abstain from deciding this case pending a final adjudication of similar actions now pending in the courts of the State of Georgia

The issues of Georgia law presented by this case do not appear so ambiguous or so critical to the public policy of the state that abstention would be appropriate. See Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058 (1959); United Services Life Ins. Co. v. Delaney, 328 F.2d 483 (5th Cir. 1964). Therefore, defendants' motion that this court abstain from deciding this case on its merits is hereby denied.

Defendants assert that under the law of Georgia, the plaintiff, being a foreign corporation not registered to do business in Georgia, may not bring suit in Georgia to enforce these contracts.

The capacity of a corporation to bring suit in a federal district court is determined by the law of the state of its incorporation. Rule 17(b), Federal Rules of Civil Procedure. Plaintiff herein is incorporated under the laws of the State of South Carolina. None of the parties contends that the corporate law of South Carolina does not allow a corporation the power to sue. Thus plaintiff has the capacity to bring suit in this court.

The court's jurisdiction over this action is based upon the diversity of citizenship of the parties. Therefore, plaintiff may not assert substantive rights in this court which it may not assert in the courts of Georgia. Woods v. Interstate Realty Co., 337 U.S. 535, 69 S.Ct. 1235, 93 L.Ed. 1524 (1949); 3A Moore's Federal Practice ¶ 17.21, p. 772. Under Georgia law a foreign corporation which is not registered to do business within the state, may sue in the courts of Georgia so long as it is not transacting business within the meaning of the...

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4 practice notes
  • Riegel Fiber Corp. v. Anderson Gin Co., Nos. 74-2120
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 9, 1975
    ...individual contracts, conform to acceptable practice in the cotton trade. Cf. R. N. Kelly Cotton Merchant, Inc. v. York, M.D.Ga.1973, 379 F.Supp. 1075, 1079, aff'd, 5th Cir. 1974, 494 F.2d 41; Taunton v. Allenberg Cotton Co., Inc., M.D.Ga.1973, 378 F.Supp. 34, 39; Mitchell-Huntley Cotton Co......
  • Sud v. Import Motors Limited, Inc., No. K-74-118 C.A.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • April 30, 1974
    ...the merits. The court is fully aware of the necessities of the case in this regard, and will make every attempt to expedite the matter. 379 F. Supp. 1075 The court has concluded that it would be best to preserve the status quo in this case by issuing a preliminary The court observes that th......
  • Seminole Peanut Co. v. Goodson, Nos. 70665
    • United States
    • United States Court of Appeals (Georgia)
    • September 16, 1985
    ...crops have not yet been planted. See Harris v. Hine, 232 Ga. 183, 186, 205 S.E.2d 847 (1974); R.N. Kelly Cotton Merchant, Inc. v. York, 379 F.Supp. 1075 (M.D.Ga.1973), aff'd 494 F.2d 41 (5th By the express terms of the UCC statute of frauds, a contract need not be in writing to be enforceab......
  • Durkan Enterprises, Inc. v. COHUTTA BANKING, Civ. A. No. C80-755A.
    • United States
    • U.S. District Court — Northern District of Georgia
    • December 10, 1980
    ...See A. S. International Corp. v. Salem Carpet Mills, Inc., 441 F.Supp. 125 (N.D.Ga.1977); R. N. Kelly Cotton Merchant, Inc. v. York, 379 F.Supp. 1075 (M.D.Ga.1973), aff'd, 494 F.2d 41 (5th Cir. 1974). Even where a case is originally filed in another district but is transferred to Georgia, a......
4 cases
  • Riegel Fiber Corp. v. Anderson Gin Co., Nos. 74-2120
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 9, 1975
    ...individual contracts, conform to acceptable practice in the cotton trade. Cf. R. N. Kelly Cotton Merchant, Inc. v. York, M.D.Ga.1973, 379 F.Supp. 1075, 1079, aff'd, 5th Cir. 1974, 494 F.2d 41; Taunton v. Allenberg Cotton Co., Inc., M.D.Ga.1973, 378 F.Supp. 34, 39; Mitchell-Huntley Cotton Co......
  • Sud v. Import Motors Limited, Inc., No. K-74-118 C.A.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • April 30, 1974
    ...the merits. The court is fully aware of the necessities of the case in this regard, and will make every attempt to expedite the matter. 379 F. Supp. 1075 The court has concluded that it would be best to preserve the status quo in this case by issuing a preliminary The court observes that th......
  • Seminole Peanut Co. v. Goodson, Nos. 70665
    • United States
    • United States Court of Appeals (Georgia)
    • September 16, 1985
    ...crops have not yet been planted. See Harris v. Hine, 232 Ga. 183, 186, 205 S.E.2d 847 (1974); R.N. Kelly Cotton Merchant, Inc. v. York, 379 F.Supp. 1075 (M.D.Ga.1973), aff'd 494 F.2d 41 (5th By the express terms of the UCC statute of frauds, a contract need not be in writing to be enforceab......
  • Durkan Enterprises, Inc. v. COHUTTA BANKING, Civ. A. No. C80-755A.
    • United States
    • U.S. District Court — Northern District of Georgia
    • December 10, 1980
    ...See A. S. International Corp. v. Salem Carpet Mills, Inc., 441 F.Supp. 125 (N.D.Ga.1977); R. N. Kelly Cotton Merchant, Inc. v. York, 379 F.Supp. 1075 (M.D.Ga.1973), aff'd, 494 F.2d 41 (5th Cir. 1974). Even where a case is originally filed in another district but is transferred to Georgia, a......

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