Ulichny v. General Electric Company

• Decision Date: 13 January 1970
• Docket Number: No. 69-CV-38.,69-CV-38.
• Citation: 309 F. Supp. 437
• Parties: Albert B. ULICHNY, d/b/a Hotpoint Service, Plaintiff, v. GENERAL ELECTRIC COMPANY, New York Telephone Company and the Reuben H. Donnelley Telephone Directory Company, Defendants, v. ALGEN SUPPLY CORP., Additional Defendant on Counterclaim.
• Court: U.S. District Court — Northern District of New York

309 F. Supp. 437

Albert B. ULICHNY, d/b/a Hotpoint Service, Plaintiff, v. GENERAL ELECTRIC COMPANY, New York Telephone Company and the Reuben H. Donnelley Telephone Directory Company, Defendants, v. ALGEN SUPPLY CORP., Additional Defendant on Counterclaim.

No. 69-CV-38.

United States District Court, N. D. New York.

January 13, 1970.

Sullivan, Rehfuss & Cunningham, Albany, N. Y., for plaintiff, John W. Rehfuss, Albany, N. Y., of counsel.

Maynard, O'Connor & Smith, Schenectady, N. Y., Rogers, Hoge & Hills, for General Elec. Co., New York City, John A. Murray, Michael E. Catalinotto, Schenectady, N. Y., George M. Chapman, Mercer L. Stockell, New York City, of counsel.

Dugan, Casey, Burke & Lyons, Albany, N. Y., for New York Tel. Co., and The Reuben H. Donnelley Tel. Directory Co., Ernest P. Lyons, Albany, N. Y., of counsel.

JAMES T. FOLEY, District Judge.

MEMORANDUM-DECISION and ORDER

This action has an unusual factual background that will be described herein. The action was instituted in the Supreme Court, Albany County. It was removed to this District Court by removal petition of the defendant, General Electric Company. Thereafter, the defendants, New York Telephone Company and The Reuben H. Donnelley Telephone Directory Company, filed a joint Answer to the complaint with two defenses therein. The defendant, General Electric Company, filed in this District Court an elaborate Answer and Counterclaim set forth in three defenses.

The New York Telephone Company as is well known is in the business of supplying telephone service in New York State, and The Reuben H. Donnelley Telephone Directory Company is its sales representative in obtaining listings and advertisements in the classified directories for the familiar yellow pages. According to the Answer of the General Electric, it is alleged upon information and belief that the plaintiff is the sole or primary stockholder of the Algen Supply Corp. sought to be added as a defendant on the counterclaim, and that plaintiff is President and Director of such company, acts for it and exercises absolute control over its activities.

There are three motions that will be discussed and decided in this decision. The plaintiff moves to remand the action to the State Court on the ground that the action is not within the jurisdiction of this Court, and for dismissal of the first defense and counterclaim of defendant, General Electric Company, or in the alternative in this regard to strike certain paragraphs from the first defense of the Answer and Counterclaim. Defendant, General Electric, cross-moves to dismiss the motion to remand and requests that jurisdiction of the action in its entirety be retained, or in the event remand is granted for an order severing the General Electric counterclaim so as to retain jurisdiction of it in this Court, and further to enjoin the plaintiff from continuing further proceedings in the State Court until final determination of the issues of the counterclaim in this federal Court. By third motion, defendant, General Electric, moves to make Algen Supply Corp. an additional defendant in the action in the counterclaim, pursuant to Federal Rules of Civil Procedure, 13(h), 19 and 20.

In the state court complaint, carefully drafted, the plaintiff alleges that on September 12, 1949, plaintiff duly filed a certificate of doing business under the assumed name of "Hotpoint Service" in the Albany County Clerk's office. It is alleged that for a great many years the plaintiff conducted an appliance service in the Albany area under this tradename and placed service advertisements in the Telephone Directory yellow pages each year for the servicing by him of various type appliances under the masthead and lettering of "Hotpoint". It is claimed and averred that General Electric not only acquiesced but assisted the plaintiff in the promotion of servicing appliances under this name. Prior to October 1968, the complaint states that General Electric arbitrarily and capriciously directed the defendants, Telephone Company and its sales representatives, to refuse to accept such listing and advertising as in the past that linked plaintiff with "Hotpoint Service". The gist of this State complaint is that this direction by General Electric violates plaintiff...