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ruling that a "direct party to the contract" was necessary to a contractual claims action
Summary of this case from Rosenzweig v. Brunswick CorporationOpinion
Civil No. 99-5303 (JBS).
Filed: December 19, 2000.
ALAN L. FRANK, ESQ., FRANK ROSEN Cherry Hill, New Jersey, Attorneys for Plaintiff Bradley T. Prader.
HOWARD SOBEL, ESQ., HOWARD N. SOBEL, P.A. Voorhees, New Jersey, Attorneys for Defendant Science Dynamics Corp.
LAURENCE E. ROSOFF, ESQ., Cherry Hill, New Jersey, Attorneys for Jonathan Ben Lassers.
OPINION
This matter comes before the Court on defendant Science Dynamics Corporation's motion pursuant to Fed.R.Civ.P. 12(b)(7) to dismiss plaintiff Bradley T. Prader's complaint for failure to join a necessary party under Rule 19 and/or to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. This motion presents an important issue regarding a New Jersey Limited Liability Company ("LLC"), namely, whether this LLC is a necessary and indispensable party to an action brought by one of its members alleging that a defendant breached a contract to pay a finders fee to the LLC. Because the Court finds that Skye Capital Group, L.L.C. is a necessary and indispensable party to this action, and that this entity is a New Jersey LLC whose presence would defeat diversity jurisdiction, defendant's motion pursuant to Fed.R.Civ.P. 12(b)(7) will be granted and this action must be dismissed without prejudice.
I. BACKGROUND
Plaintiff Bradley T. Prader ("Prader"), at the time this action was filed, resided in Doylestown, Pennsylvania. Defendant Science Dynamics Corporation ("Science Dynamics") is a Delaware Corporation whose principal place of business is in Cherry Hill, New Jersey. (Pls.' Opposition at 1.) Defendant Cross-Claimant Jonathan Ben Lassers ("Lassers") is a resident of Edinburgh, Scotland. (Pls.' Opposition, Ex. B.) Plaintiff asserts that this Court has jurisdiction under 28 U.S.C. § 1332 because the parties are completely diverse and the amount in controversy is greater than $75,000.00.
Skye Capital is a New Jersey Limited Liability Company ("LLC") that was formed in April, 1998 (Prader Dep., Aug. 16, 2000, T 20-24 to 21-08), with four members, Prader, Lassers, Roberta Babitz ("Babitz"), and Peter Kearns ("Kearns"). Prader formed the LLC himself, without the assistance of counsel, directly through the Secretary of State of New Jersey, and he and Kearns signed the incorporation papers. (Prader Dep., Aug. 16, 2000, T 21-22 to 22-16.) Prader, Lassers, Babitz and Kearns agreed to be equal members of Skye Capital, although no written document was ever produced to confirm that agreement. (Id. at 32-3 to 32-12.)
The underlying dispute in this case involves a breach of contract pursuant to a June 10, 1998 agreement (the "Contract") between Science Dynamics and Skye Capital Group, L.L.C. ("Skye Capital"). That Contract provided for the payment of a $10,000.00 Finder's Fee payable in Science Dynamics Stock to Skye Capital upon consummation of a merger or acquisition between or by Science Dynamics and GORCA Memory Systems, Inc. ("GMS"). (Defs.' Br. in Support of Mot. to Dismiss, Ex. A; Compl., Ex. A.) On February 8, 1999, the transaction between Science Dynamics and GMS was completed, and the price per share of Science Dynamics stock was $0.53. (Final Pretrial Order, Oct. 19, 2000 at 3.) To date, no stock has been issued by Science Dynamics to Skye Capital, although a partial cash payment, which is discussed in greater detail below, was made to Skye Capital in July, 1999. (Id.)
Plaintiff calculated that, at $0.53 per share, 18,867 shares of Science Dynamics stock ($0.53 x 18,867 = $9,999.51) were due and owing to Skye Capital pursuant to the Contract. (Amended Compl., para. 13.)
On April 30, 1999, Prader communicated with Alan Bashforth of Science Dynamics ("Bashforth") and advised that Science Dynamics was "delinquent in delivering an advisory fee to Skye Capital Group, L.L.C. as per [Science Dynamic's] obligations under the [Contract]." (Defs. Br., Ex. B.) Prader went on to write that the "$10,000.00 fee will be paid in freely trading [Science Dynamic] stock at the price as of the time of closing ($0.49). Therefore, [Science Dynamic] shall issue 20,408 shares . . . to Skye Capital Group, L.L.C." (Id.) On June 3, 1999, an attorney for Skye Capital advised Bashforth that Science Dynamics had breached its contract with Skye Capital and wrote that "[t]he fee due is to be paid in Science Dynamics stock issued at the stock price quoted on February 8 of $0.49." (Defs.' Br., Ex. C.)
The Court notes that Plaintiff's valuation of the Science Dynamics stock on February 8, 1999 is $0.49 in his complaint and initial demand letters (Defs.' Br., Exs. B, C) and $0.53 in his amended complaint.
On July 9, 1999, after a meeting between Prader for Skye Capital and Bashforth for Science Dynamics, Science Dynamics issued a check in the amount of $2,000.00, payable to Skye Capital, L.L.C., representing a partial cash payment of the $10,000.00, which was originally to be delivered in stock pursuant to the Contract. (Id. at T 93-8 to 93-20.) Science Dynamics claims that Prader, on behalf of Skye, agreed to accept $10,000.00 in cash in lieu of $10,000.00 worth of stock. In his deposition, Prader admitted that he agreed with Bashforth on July 9, 1999 to take the cash value of the stock (id. at T 92-8 to 93-7), but later testified that he believed he and Skye were entitled to the full value of the stock owed on that date, or approximately $15,000.00. (Id. at T 93-23 to 94-4.) Prader did not notify the other members of Skye Capital of the $2,000.00 cash payment and disbursed the entire payment to himself. (Id. at T 96-6 to 97-6.) No further payments have been made by Science Dynamics to Prader or Skye Capital to date. (Id. T 93-23 to 94-4.)
The Contract language regarding the fee to be paid to Skye Capital states: "In the event that an acquisition or merger is consummated by or between . . . [Science Dynamics] and GMS, . . . [Skye Capital] will receive a Finder's Fee equal to $10,000 payable in [Science Dynamics] stock." (Amended Compl., Ex. A) (emphasis added). This language clearly indicates that the fee was agreed to be $10,000.00. On February 8, 1999, when the merger which triggered the payment occurred, Science Dynamics stock was trading at $0.53 per share, so $10,000.00 was equal to 18,867 shares. On July 9, 1999, when the $2,000.00 payment was made, Science Dynamics stock was trading at $0.78 per share, so the $2,000.00 cash payment was equal to 2,564 shares of stock. Both demand letters from Prader and Skye (Defs.' Br., Exs. C and D) also make it clear that Prader understood that the Finders Fee would be paid in stock with a total value of $10,000.00. Mr. Prader recently testified that it was his understanding that, after the initial $2,000.00 was paid in lieu of stock, he and Bashforth agreed that Skye was entitled to the cash value of the remaining number of shares owed on July 9, 1999 (16,303), irrespective of the $10,000.00 cap in the Contract. Prader testified that it was his understanding that after the initial $2,000.00 payment was made, "if the [remaining shares of] stock went to a bazillion dollars we were owed a bazillion dollars" Prader Depo., T 94-14 to 94-24.) Prader admits that there was no writing to memorialize this change.
In the amended complaint, plaintiff Prader alleges that he is "the principal, sole employee, and sole member of Skye Capital," (Amended Compl., para. 7), and as such, he is entitled to 16,303 shares of stock, or its cash equivalent. (Id., paras. 8, 17, 18). In his answer to Prader's complaint, Lassers denied that Prader was the sole member of Skye or that he was authorized to deal independently with Science Dynamics. (Def's Answer, Counter-cl, and Cross-cl, para. 14.) Lassers also made claims for specific performance (id. at 4) and breach of contract (id. at 5), and asserted a cross-claim against Science Dynamics, and a counter-claim against Prader. (Id. at 8-11).
On September 26, 2000, Prader and Lassers entered into a written agreement (the "Agreement") stating: 1) That Skye Capital remained a New Jersey LLC, and that at its formation, Prader, Lassers, Kearns, and Babitz were equal co-owners, but that at a time prior to the agreement, Babitz abandoned her interest in Skye and Kearns assigned his interest to Prader; 2) that Prader retains an interest in 60% of any recovery from this litigation and Lassers retains a 40% interest, and that both immediately withdraw any and all claims that they have asserted against one another; and 3) that Alan L. Frank, Esquire, would be lead trial counsel in this action and prosecute the claims of both Prader and Lassers against Science Dynamics, and that Laurence Rosoff, Esquire would assist to the extent permitted by the Court. (Pls.' Opp. to Mot. to Dismiss, Ex. A.) An October 4, 2000 affidavit, written and signed by Lassers, confirms that he and Prader had settled their dispute and wished to proceed together as plaintiffs and the only remaining members of Skye Capital, against Science Dynamics. (Id., Ex. B.)
Babitz's abandonment is supported only by an e-mail, dated March 19, 2000, and addressed to "BP, JL," which reads "I wish to have absolutely no affiliation with the final dealings of Skye . . . I relinquished all involvement, with absolute equanimity and neutrality." (Pls.' Opp., Ex. C).
Kearns' assignment is supported by a signed declaration (labeled Exhibit 10) which reads, "I, Peter Kearns, do hereby affirm my previous assignment to Brad Prader of all my right, title and interest n and to all of my shares of capital stock of Skye Capital Group, L.L.C." (Pls.' Opp., Ex. D.)
The agreement further states that Prader's "60% interest contemplates and thereby subsumes any liability or obligations owed to Peter Kearns" and Lassers's "40% interest contemplates and thereby subsumes any liability or obligations owed to Roberta Babitz" (Pls.' Opp., Ex. A at (2) c-d.)
In response to a jurisdictional inquiry by this Court, Prader and Lasser submitted a letter valuing their claim as of the date of the filing of the amended complaint at $261,866.93. They asserted that they were entitled to compensatory damages reflective of the highest value of the stock during the period following the one-year restrictive registration period. The highest value of the stock was reported as $21.75 per share on March 1, 2000, which amounts to a total value of $410,357.25 for 16,303 shares.
On November 9, 2000, this Court wrote to counsel on its own initiative pursuant to Rule 12(h)(3), Fed.R.Civ.P., to ascertain whether the claim asserted in this case exceeds the $75,000 jurisdictional threshold for diversity jurisdiction under 28 U.S.C. § 1332, since the amount of the original finders fee in dispute was $10,000 payable in shares of defendant's stock.
The amended complaint was filed on April 7, 2000, when Science Dynamics stock was trading at $13.0625 per share. See Yahoo Finance,available at http://chart.yahoo.com/d?s=sidy.
Value based on Yahoo Finance Letter website, supra. In their letter, Plaintiffs quote a high share price of $24.75, but do not say when this peak occurred, other than that it was "[i]n the to three months following" February 8, 2000, the end of the one-year restrictive period.
Defendant Science Dynamics now moves under Fed.R.Civ.P. 12(b)(7) to dismiss Prader's claims for failure to name Skye Capital as a party pursuant to Rule 19 and/or to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. For the following reasons, Defendant's motion to dismiss plaintiffs' claims based on failure to join an indispensable party is granted, and plaintiff's claim is dismissed without prejudice.
II. DISCUSSION
Defendants seek dismissal of plaintiffs's claims because, they argue, Skye Capital is a necessary and indispensable party to this action whose joinder would destroy the diversity jurisdiction of this Court under 28 U.S.C. § 1332. Plaintiff Prader, now joined as a plaintiff by Lassers, argue that they are the only remaining members of Skye Capital and, as such, may therefore properly assert the LLC's interests without requiring joinder of the LLC. The Court will first address defendant's motion under Fed.R.Civ.P. 12(b)(7) to dismiss for failure to join a party under Rule 19, and, if necessary, will then address defendant's motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6).
28 U.S.C. § 1332 reads, in part, that "[t]he district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000.00, exclusive of interest and costs, and is between —
(1) citizens of different States; . . .
(c) For the purposes of this section . . .
(1) a corporation shall be deemed to be a citizen of any State by which it has been incorporated and the State where it has its principal place of business. . . ."
A. Defendant's Motion to Dismiss for Failure to Join Skye Capital as a Party Pursuant to Rule 19
Defendants claim that Prader's non-joinder of Skye Capital mandates dismissal of the action pursuant to Fed.R.Civ.P. 19(b). Because Skye Capital and Science Dynamics are both citizens of New Jersey, joinder of Skye Capital as a plaintiff would defeat diversity. Prader claims that he and Lassers, as the remaining members of Skye Capital, may adequately litigate on behalf of Skye, thereby obviating the need for the LLC itself to be named as a party. Defendants challenge such an assertion and argue that Prader and Lassers lack standing to sue on behalf of Skye Capital.
As the parties are presently situated, every plaintiff is of diverse citizenship from every defendant and there is complete diversity. See Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 267-68 (1806) (establishing the complete diversity rule). Plaintiff Prader was a citizen of Pennsylvania at the time the action was filed, Defendant Science Dynamics is a citizen of Delaware (its State of incorporation) and New Jersey, and Defendant Cross-Claimant Lassers is a citizen of Scotland. Joinder of Skye Capital, a New Jersey Limited Liability Company, would defeat the complete diversity of the parties required under law.
In order to dismiss a claim or action for failure to join an indispensable party, the Court must undertake a three-step inquiry. First, the Court must determine whether the absent party is "necessary" under Fed.R.Civ.P. 19(a). 4 Moore's Fed. Prac., Parties § 19.02[3][a](1997). Second, if the Court determines that the party is necessary, the court must determine whether joinder of the necessary party is feasible. 4 Moore's Fed. Prac., Parties § 19.02[3][b]. Third, if joinder of the absentee is not feasible, the Court must determine "whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent party thus being regarded as indispensable." Weber v. King, 110 F. Supp.2d 124, 127 (E.D.N.Y. 2000).
Fed.R.Civ.P. 19(a)(1)-(2) reads:
(a)Persons to be Joined if Feasible. A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in the person's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (i) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the person's already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. If the person has not been so joined, the court shall order that the person be made a party. If the person should join as a plaintiff but refuses to do so, the person may be made a defendant, or, in a proper case, an involuntary plaintiff. If the joined party objects to venue and joinder of that party would render the venue of the action improper, the party shall be dismissed from the action.
1. Skye Capital as a Necessary and Feasible Party
As a direct party to the Contract, Skye Capital is a necessary party for several reasons under Fed.R.Civ.P. 19(a). First, because the Contract at issue is undisputedly between Skye Capital and Science Dynamics, Skye Capital is a person in "whose absence complete relief cannot be accorded among those already parties." Fed.R.Civ.P. 19(a)(1). The Advisory Committee wrote that "the interests . . . being furthered here are not only those of the parties but also that of the public in avoiding repeated lawsuits on the same essential subject matter." Fed.R.Civ.P. 19(a) advisory committee's note. Prader's current attempt to recover the proceeds of the Contract for himself, much like his previous coveting of the initial payment from Science Dynamics without notifying Skye Capital's other members, arises under the same essential subject matter as Skye Capital's rights under the Contract. Therefore, Skye Capital appears to be a necessary party in this action.
Prader and Lassers argue that they are the sole interest holders in Skye Capital and therefore may bring an action on behalf of Skye Capital without naming the LLC and destroying diversity. Science Dynamics argues that Skye Capital is a separate legal entity from its members under New Jersey law and therefore plaintiffs do not have the right to enforce the terms of the Contract on its behalf. Defendant also points out, and plaintiff does not dispute, that no dissolution of Skye Capital has occurred. (See Defs.' Reply Br. at 4; Pls.' Opp., Ex. A, para. 1(a).)
There is no binding New Jersey case law that addresses whether a limited liability company ("LLC") is a necessary party to an action brought by one member pursuant to the contractual rights of the LLC, where the LLC and several other members are not parties to the action. A review of N.J.S.A. 42:2B-1, et seq., the New Jersey Limited Liability Company Act (the "LLC Act"), and persuasive case law from other jurisdictions, however, support the conclusion that Skye Capital, a New Jersey LLC, is a separate legal entity from its members and is a necessary party to this action brought by Prader and Lassers pursuant to Skye Capital's contract with Science Dynamics.
Under New Jersey's LLC Act, an LLC "formed under this act shall be a separate legal entity." N.J.S.A. 42:2B-11b. An LLC's members are afforded corporate-like limited liability protections, such as the absence of personal liability for the debts, obligations, and liabilities of the LLC. N.J.S.A. 42:2B-23. Additionally, the LLC has separate and distinct rights and obligations beyond those of its members. N.J.S.A. 42:2B-43 (directing that a LLC interest is personal property and that a member has no interest in specific limited liability company property). Considering these factors, Judge Mishler found a New York LLC to be indispensable in an action where certain LLC members sued creditors for breach of contract on a LLC contract. In Weber v. King, 110 F. Supp.2d 124 (E.D.N.Y. 2000), the court determined that New York's Limited Liability Company Law, which is similar to New Jersey's LLC Act, directed that an LLC was a necessary party to an breach of contract action. In Weber, even though all of the individual members of the LLC were before the court in some capacity, the court still ruled that there was insufficient assurance that the interests of the company would be adequately represented, because the members were in conflict with one another. 110 F. Supp.2d at 128. In this case, only two of the four original members of Skye Capital are before the Court; the other two, Babitz and Kearns, are not involved and seem to be unaware of the litigation, so far as the record reflects.
The Court is concerned about the alleged assignment by Kearns and disavowment of interest by Babitz because the stakes of this litigation are much higher than they originally seemed under the Contract. Kearns's assignment, (Pls. Opp., Ex. D), is undated, and Babitz's e-mail, dated March 20, 2000, indicates that she has been uninvolved and unaware of the dealings of Skye Capital for some time. Due to plaintiff Prader's loose adherence to corporation formalities, his failure to share the initial $2,000.00 payment with Skye or the other members, his failure to even advise the other members of such payment, and his premature insistence, before his agreement with Lassers, that he was the only remaining interest holder in Skye, lead this Court to question whether Kearns and Babitz had enough information from Prader to appreciate the full value of their share of the proceeds pursuant to the Skye Capital Contract at issue. Because plaintiffs now claim that the damages related to Science Dynamics's breach are in excess of $400,000.00, as compared to the original $10,000.00 of stock at stake, the Court cannot be certain that litigation of this issue without Skye Capital as a party would not generate duplicitous litigation or preclude the rights of Babitz and Kearns as members, and Skye Capital as an LLC. It may be true that neither Babitz or Kearns could successfully stake a claim to any recovery herein, but there is no way to be sure unless the LLC is joined as a party, binding its members (or former members) to the adjudication whether favorable or not.
Another recent case addressing this issue is Trademark Retail, Inc. v. Apple Glen Investors, Inc., 196 F.R.D. 535 (N.D.Ind. 2000), which held that the LLC was a necessary party to an action by a member pursuant to a contract of the LLC. The Apple Glen court did not hold that this was always the case, however, and cited the Third Circuit:
the Partnership, like a marionette, cannot make a move unless some human being pulls the strings. And all the people, who under the Partnership Agreement, have the power to cause the Partnership to bring suit . . . are before the court. The court can therefore enjoin all the partners from bringing a subsequent suit on behalf of the Partnership . . . Thus, at least in certain cases, it is possible that a partnership's interests can be effectively represented in litigation by participation of its partners.Apple Glen Investors, 196 F.R.D. at ___ (quoting HB Gen. Corp. v. Manchester Partners, LP, 95 F.3d 1185, 1191-93 (3d Cir. 1996)). Here, all the parties are not before the Court and there is no guarantee that Science Dynamics will not be subjected to multiple litigation and that the rights absent members will not be prejudiced by an adjudication with these parties. The Court, therefore, finds that Skye Capital is a necessary party to this litigation.
The Court now must determine whether joinder of Skye Capital is feasible. Joinder is not feasible if it destroys subject matter jurisdiction, if the court cannot exercise personal jurisdiction over the absentee, or if the absentee objects to the venue as improper. 4 Moore's Fed. Prac., Parties § 19.04[1]-[3]. Jurisdiction in this action is based solely on diversity of citizenship pursuant to 28 U.S.C. § 1332; there are no federal claims being made. As discussed earlier, the parties as they are currently arranged are completely diverse. Joinder of Skye Capital, a New Jersey LLC, would destroy the complete diversity of the parties because defendant Science Dynamics, a Delaware Corporation whose principal place of business is in New Jersey, is also a citizen of New Jersey for jurisdictional purposes. Joinder, therefore, of Skye Capital is not feasible.
Additionally, after consideration of the letter submissions responding to this Court's inquiry about the amount in controversy, the Court finds that the claim in this case exceeds $75,000.00, exclusive of interest and costs, for jurisdictional purposes, so that the amount in controversy required by Section 1332 is satisfied.
2. Skye Capital as an Indispensable Party
Because it has been determined that Skye Capital cannot be made a party to this action, the Court must now determine "whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable." Fed.R.Civ.P. 19(b). Rule 19(b) also lists four non-exhaustive factors to be considered when determining whether that necessary party is indispensable:
first, to what extent a judgment rendered in the person's absence might be prejudicial to the person or those already parties; second, the extent to which, by protective provisions in the judgment, by shaping relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person's absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.
Fed.R.Civ.P. 19(b). "The language of Rule 19(b) leaves the district court with substantial discretion in considering which factors to weigh and how heavily to emphasize certain considerations." Weber, 110 F. Supp.2d at 129 (quoting Envirotech Corp. v. Bethlehem Steel Corp., 729 F.2d 70, 75 (2d Cir. 1984) (citations omitted)).
The first factor, prejudice, involves a similar analysis to the one conducted to determine whether Skye Capital is a necessary party. Although Defendant's primary argument is that Prader and Lassers lack standing or authorization to sue on behalf of Skye Capital pursuant to the Contract, the more compelling problem is that the absence of Skye Capital and Babitz and Kearns could expose Science Dynamics to multiple and duplicitous litigation arising from the same breach of contract claim. Also, litigation of this claim without Skye Capital as a named plaintiff might prejudice the rights of the absent parties (e.g., Skye Capital, Babitz, Kearns) if the present plaintiffs fail to make certain legal arguments or if they fail to properly litigate the claim. If the case was fully and inadequately litigated by the present plaintiffs it might foreclose the absent parties from relitigating the same issue based on their original privity to the Contract as members of Skye Capital. As discussed earlier, Babitz and Kearns might experience a renewed interest in their share of a possible $400,000.00 claim than they did in their share of a $10,000.00 claim that seemed headed for court.
The second factor, whether protective provisions in the judgment could decrease or avoid prejudice, also weighs in favor of requiring Skye Capital as an indispensable party. Unlike the facts in HB Gen. Corp., where the Third Circuit held that joinder of a partnership entity was not required because all partners of the small limited partnership were before the district court, 95 F.3d at 1191, all the members of Skye Capital are not before this Court. In HB Gen. Corp., the Third Circuit reasoned that a protective provision in the judgment precluding any of the partners from bringing individual claims pursuant to the same action and ensure that the partnership's interests were fully and adequately represented by the individual partners. Id. at 1193. Such a protection is not possible in this case, nor is an LLC a "partnership" under New Jersey law, since it is regarded as a legal entity separate from its members, as discussed above.
The third factor, which focuses on prejudice to parties presently before the court, namely Science Dynamics, also weighs in favor of dismissal. Defendant Science Dynamics might be subject to multiple duplicitous claims pursuant to the Contract if the present case were to be litigated without Skye Capital. Indeed, Science Dynamics seeks this dismissal.
Likewise, the fourth factor clearly supports dismissal of the plaintiffs's claim because, as plaintiffs have admitted, this is a "very basic breach of contract claim" (Pls.' Nov. 14, 2000 Letter Resp. to the Court's Jurisdictional Inquiry), and plaintiffs have an alternate remedy in state court. With Skye Capital named as a plaintiff, this action can be refiled in a court of competent jurisdiction.
In conclusion, this Court finds that Skye Capital is a necessary and indispensable party to this litigation. Because joinder of Skye Capital would destroy this Court's diversity jurisdiction, it is not necessary to consider Defendant's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). This action, therefore, must be dismissed without prejudice to further proceedings in a court of competent jurisdiction.
III. CONCLUSION
For the foregoing reasons, the Court will grant defendant's motion to dismiss the Complaint for failure to join a necessary party under Rule 19, will dismiss defendant's motion to dismiss based on failure to state a claim, and will dismiss the Complaint without prejudice. The accompanying Order will be entered.
ORDER
THIS MATTER having come before the Court on defendant's motion to dismiss plaintiff's Complaint for failure to join a necessary party and/or for failure to state a claim upon which relief can be granted, pursuant to Federal Rules of Civil Procedure 12(b)(7) and (6); the Court having considered the moving papers and the opposition thereto; and for the reasons stated in the accompanying Opinion;IT IS on this ___ day of December 2000, hereby ORDERED that defendant's motion to dismiss plaintiff's Complaint for failure to join a necessary party is GRANTED ; and
IT IS FURTHER ORDERED that defendant's motion to dismiss plaintiff's Complaint for failure to state a claim is DISMISSED ; and
IT IS FURTHER ORDERED that plaintiff's Complaint is hereby DISMISSED WITHOUT PREJUDICE .