United States Court of Appeals,
Eleventh Circuit.
No. 94-2479.
GTE DIRECTORIES PUBLISHING CORPORATION, Plaintiff-Appellant,
v.
TRIMEN AMERICA, INC., Defendant-Appellee.
Nov. 7, 1995.
Appeal from the United States District Court for the Middle
District of Florida. (No. 91-1838-CIV-T-24B), Robert R. Merhige,
Judge.
Before EDMONDSON, Circuit Judge, HILL, Senior Circuit Judge, and
MILLS*, District Judge.
RICHARD MILLS, District Judge:
Did this declaratory judgment action involve an actual case or
controversy?
The district court found that it did not.
We respectfully hold that it did.
Therefore, we must reverse and remand.
I. Background
GTE Directories Publishing Corporation (GTEDPC) is a publisher
of yellow pages advertising—the familiar yellow pages that appear
in almost every telephone book published. GTEDPC contracts with
telephone companies to publish the yellow pages section of their
telephone books. The advertising that is placed in these yellow
pages is broken down into two categories: local advertising and
national advertising.
Local advertising consists of ads placed by small businesses
*
Honorable Richard Mills, U.S. District Judge for the
Central District of Illinois, sitting by designation.
which advertise solely in the yellow pages of their local phone
book. GTEDPC's sales staff solicits and services local accounts.
National advertising consists of ads placed by larger
companies who advertise in the yellow pages in several different
phone books. The various publishers of yellow pages advertising
have formed the Yellow Pages Publishing Association (YPPA). YPPA
defines a national account as an account which is placed with two
or more publishers, is ordered in twenty directories or more and
involves at least three states, and 30% of the advertising revenue
comes from states outside of the primary state. GTEDPC (which is
a member of YPPA) expanded the definition of "national accounts"
for advertising placed with GTEDPC: an account is national if it
appears in twenty or more GTE published directories in three states
with at least 30% of the revenue from outside the primary state.
GTEDPC sales staff also solicits and services national
accounts. However, GTEDPC will also accept national advertising
placed through certified marketing representatives (CMRs). A CMR
is a company that has been approved by YPPA to sell national yellow
pages advertising directly to businesses and then place the ads
with the publishers of the yellow pages, such as GTEDPC. Using a
CMR allows a company which advertises in hundreds of telephone
books to deal with one person regarding their advertising. Under
this system, the yellow page publisher bills the CMR directly for
the ads and the CMR must then bill and collect the cost of the ad
from the advertiser. The CMR must pay for the advertising it
places with the publisher regardless of whether it actually
collects the money from the business placing the ad. In return for
soliciting and servicing national advertising, CMRs are paid a
twenty percent commission on each national account they place with
the yellow page publisher.
Trimen America, Inc., (Trimen) is a CMR owned by David
Mendenhall. Joel Blumberg is the national sales manager for
Trimen. Blumberg and GTEDPC have a long history with one another,
set out in three published opinions from this court. Ad-Vantage
Telephone Directory Consultants, Inc. v. GTE Directories Corp., 849
F.2d 1336 (11th Cir.1987) (Ad-Vantage I); Ad-Vantage Telephone
Directory Consultants, Inc. v. GTE Directories Corp., 943 F.2d 1511
(11th Cir.1991) (Ad-Vantage II); Ad-Vantage Telephone Directory
Consultants, Inc. v. GTE Directories Corp., 37 F.3d 1460 (11th
Cir.1994) (Ad-Vantage III). Although a brief recap of this history
is necessary for an understanding of this case, a more detailed
account may be found in Ad-Vantage I.
Twenty years ago Blumberg worked for GTEDPC. In 1975,
Blumberg left GTEDPC to start his own company, Ad-Vantage Telephone
Directory Consultants, Inc. (Ad-Vantage). Ad-Vantage became a CMR
and Blumberg began placing national advertising with GTEDPC. Ad-
Vantage had trouble paying its bills and GTEDPC decided to take
action. GTEDPC sent a direct mailing to Ad-Vantage's customers
apprising them of Ad-Vantage's cash flow problems and informing
them that GTEDPC would bill them directly for their advertising
space rather than have the billing go through Ad-Vantage and
Blumberg.
Blumberg was not happy with GTEDPC's actions and therefore
sued GTEDPC for anti-trust violations, breach of contract, and
tortious interference with business relations. The tortious
interference claim is the only claim relevant to this case.
At trial, the jury found GTEDPC's direct contact with Ad-
Vantage's customers had tortiously interfered with Ad-Vantage's
business relations. In Ad-Vantage II, this court upheld the jury's
verdict of $500,000 in punitive damages against GTEDPC on the
tortious interference claim. The amount of compensatory damages
has yet to be finally adjudicated. Ad-Vantage III, 37 F.3d at
1466.
In 1982, Ad-Vantage's CMR status was revoked by YPPA for
failure to timely pay its bills. Blumberg continued to sell yellow
pages advertising, however, placing his orders through a succession
of CMRs. In March 1990, Blumberg was placing national accounts
with GTEDPC through a CMR named Hometown Directory Service
(Hometown). GTEDPC began scrutinizing Blumberg's accounts to
insure they met GTEDPC's definition of a national account. The
investigation revealed 64 accounts GTEDPC felt might not meet its
definition of national. GTEDPC confronted Blumberg with the 64
accounts and Blumberg agreed that 12 of the accounts were not
national. Upon further investigation, GTEDPC became satisfied that
18 of the 64 accounts were in fact national. Questions remained,
however, on the status of the remaining 34 accounts.
The publishing date for several Florida phone books was
rapidly approaching, so GTEDPC processed the 34 accounts as
national to ensure those businesses' advertisements made it into
the phone books. GTEDPC, however, continued to investigate the
true status of the remaining 34 accounts. Ultimately, GTEDPC
concluded that of the remaining 34 accounts, 22 were local accounts
rather than national. Thus, of the 64 accounts reviewed by GTEDPC,
30 were national; however, 34 were found to be local.
GTEDPC had already paid Blumberg commissions on some of the
accounts he placed as national accounts which ultimately turned out
to be local accounts. Since Blumberg was not entitled to
commissions on local accounts, GTEDPC wanted the commissions it had
paid on the local accounts back. By this time, Blumberg had ceased
placing national advertising through Hometown and was now placing
his advertising through Trimen. Because Blumberg was handling
these accounts through Trimen, GTEDPC billed Trimen for the
wrongfully obtained commissions on the accounts. Both Trimen and
Blumberg refused to pay.
Numerous letters were exchanged between GTEDPC and its
in-house counsel and Blumberg and his counsel. Additionally, David
Mendenhall sent at least one letter to GTEDPC refusing to pay the
commissions unless GTEDPC agreed to pay Trimen for costs incurred
in servicing the accounts. GTEDPC refused to agree to Mendenhall's
terms.
Finally, GTEDPC had enough. On November 13, 1991, GTEDPC
informed Blumberg's attorney it would no longer do business with
Blumberg, Trimen, or "any [CMR] that has Mr. Blumberg associated as
a guarantor or in any way responsible for payment of bills...."
(Plaintiff's Ex. 83). Trimen, through Blumberg, responded to
GTEDPC's actions saying its national accounts would be placed
through a different CMR and that GTEDPC was not to contact any of
Trimen's clients. (Plaintiff's Ex. 88). In mid-December 1991,
Blumberg found another CMR through which to place his clients'
advertising. Blumberg informed GTEDPC of his new CMR and also
identified 13 clients which were now deemed by him to be local and
giving GTEDPC permission to contact those clients. (Plaintiff's
Ex. 95). GTEDPC contacted Blumberg's new CMR, Concept One Media
Services, Inc., (Concept), satisfied itself Blumberg had no
financial stake in the company, and after requiring Concept to
submit a substantial Letter of Credit agreed to accept national
advertising from Concept. (Plaintiff's Ex. 96).
On December 19, 1991, GTEDPC filed its Complaint in the
instant case. On December 31, 1991, GTEDPC filed a motion for a
temporary restraining order or a preliminary injunction. District
Judge Ralph W. Nimmons held a hearing on GTEDPC's motion on January
2, 1992, and denied the motion the following day.
An Amended Complaint was filed on January 15, 1992, and
Amended Complaint contains a condensed version of the facts set
forth above. It then states in paragraph 22:
GTEDPC would contact the advertisers directly about billing
and collection matters, and advise them of its decision not to
accept any future orders for yellow pages advertising from
Trimen, but Trimen has forbidden GTEDPC from contacting the
affected advertisers. Further, GTEDPC is concerned that the
Eleventh Circuit's decision in Ad-Vantage Telephone Directory
Consultants, Inc. v. GTE Directories Corporation, 849 F.2d
1336 (11th Cir.1987), might be improperly and inaccurately
interpreted so as to prevent GTEDPC from directly contacting
affected advertisers about billing or collection matters, or
the submission of advertising orders by Trimen.
The Amended Complaint, in paragraph 24, continues:
By reason of the existence of the controversy between GTEDPC
and Trimen, GTEDPC is not able, without risk of liability, to
ascertain the wishes of advertisers who depend on yellow pages
advertising in GTEDPC's directories, and advertising for such
advertisers may be omitted or may contain error and the
advertisers may sustain damage.
After GTEDPC filed its Complaint, motion for a temporary
restraining order or a preliminary injunction, and Amended
Complaint, things went from bad to worse. GTEDPC and Blumberg
engaged in a letter writing campaign involving threats of
collateral litigation and accusations of improper conduct by both
parties. In mid-June, Trimen and Blumberg filed suit against
GTEDPC in the Circuit Court of Pinellas County, Florida, alleging
intentional interference with advantageous business relationship,
breach of contract, tortious interference with contractual
relations, intentional interference with an advantageous business
relationship, intentional infliction of emotional distress, and
defamation.
On April 5, 1993, GTEDPC filed a motion to amend its Amended
Complaint to add Blumberg as a defendant. Trimen opposed the
motion, arguing Blumberg was merely the national sales manager for
Trimen with no ownership interests. The district court accepted
Trimen's description of Blumberg's position and denied GTEDPC's
motion.
The case proceeded to a bench trial before District Judge
Robert R. Merhige, Jr., on March 17, 1994. At the trial, GTEDPC
argued that under Florida law, it had an absolute right and
privilege to contact the advertisers whose ads were placed by
Trimen and Blumberg with GTEDPC regardless of whether that contact
injured Trimen or Blumberg. (Transcript of Bench Trial p. 200).
According to GTEDPC, in Ad-Vantage I, its counsel erroneously
failed to argue GTEDPC had an absolute right to contact the
advertisers and, therefore, this issue has not been ruled on by
this court. Id. After a one day trial, Judge Merhige dismissed
GTEDPC's case for lack of a case or controversy.
II. Dismissal For Lack of a Case or Controversy
The district court's dismissal of GTEDPC's case for lack of
a case or controversy is reviewed de novo. U.S. Fire Ins. v.
Caulkins Indiantown Citrus, 931 F.2d 744, 747 (11th Cir.1991).
"At the outset we note that the Declaratory Judgment Act does
not enlarge the jurisdiction of the federal courts but rather "is
operative only in respect to controversies which are such in the
constitutional sense.... Thus the operation of the Declaratory
Judgement Act is procedural only.' " Wendy's Intern., Inc. v. City
of Birmingham, 868 F.2d 433, 435 (11th Cir.1989).
At an irreducible minimum, the party who invokes the court's
authority under Article III must show: (1) that they
personally have suffered some actual or threatened injury as
a result of the alleged conduct of the defendant; (2) that
the injury fairly can be traced to the challenged action; and
(3) that it is likely to be redressed by a favorable decision.
Caulkins, 931 F.2d at 747 (11th Cir.1991) (citing Valley Forge
College v. Americans United, 454 U.S. 464, 472, 102 S.Ct. 752, 758,
70 L.Ed.2d 700 (1982)). The determination of whether an actual
case or controversy exists is determined on a case-by-case basis.
Hendrix v. Poonai, 662 F.2d 719, 721-22 (11th Cir.1981).
The difference between an abstract question and a
"controversy" contemplated by the Declaratory Judgment Act is
necessarily one of degree, and it would be difficult, if it
would be possible, to fashion a precise test for determining
in every case whether there is such a controversy. Basically,
the question in each case is whether the facts alleged, under
all the circumstances, show that there is a substantial
controversy, between parties having adverse legal interests,
of sufficient immediacy and reality to warrant the issuance of
a declaratory judgment.
Maryland Cas. Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61
S.Ct. 510, 512, 85 L.Ed. 826 (1941) (citation omitted). We now
apply these rather nebulous standards to the facts of this case.
GTEDPC argues that Trimen's admissions in its answers to
interrogatories that GTEDPC has contacted Trimen's clients
establishes beyond a doubt that an actual case or controversy
exists in this case. Alternatively, GTEDPC argues a case or
controversy exists regardless of whether or not it has actually
contacted any of Trimen's clients. Trimen argues—as it did at the
bench trial—that GTEDPC is merely seeking an advisory opinion.
In Trimen's Answer to GTEDPC's Amended Complaint, it raises
as an affirmative defense GTEDPC's tortious conduct. GTEDPC served
Trimen with a set of interrogatories one of which asked Trimen to
state specifically which accounts it claimed GTEDPC had tortiously
interfered with, and how and when the tortious interference had
occurred. Trimen's initial answer to the interrogatory simply
referred GTEDPC to an attached copy of Trimen's Complaint filed in
the Circuit Court of Pinellas County. In that Complaint, Trimen
asserted among other things that GTEDPC "wrongfully and maliciously
contacted some of Trimen's clients in order to insure that yellow
page advertising could not be placed by Trimen." (Plaintiff's Ex.
134). In a subsequent set of court ordered answers, Trimen listed
specific accounts it claimed GTEDPC had improperly contacted.
(Plaintiff's Ex. 143). GTEDPC argues that Trimen's admissions that
it has already contacted Trimen's clients, coupled with Trimen's
threats to sue GTEDPC if it contacted Trimen's clients, establishes
an actual case or controversy.
GTEDPC's argument has merit but for one flaw. GTEDPC's
Complaint was filed on December 19, 1991 and the Amended Complaint
was filed on January 15, 1992. Trimen's answers to interrogatories
state GTEDPC contacted Trimen's accounts between August 6, 1992 and
January 1993. Thus, there are no admissions by Trimen that at the
time GTEDPC filed its Complaint or Amended Complaint GTEDPC had
contacted Trimen's clients. A case or controversy must exist at
the time the declaratory judgment action is filed. Indium Corp. of
America v. Semi-Alloys, Inc., 781 F.2d 879, 883 (Fed.Cir.1985),
cert. denied, 479 U.S. 820, 107 S.Ct. 84, 93 L.Ed.2d 37 (1986);
Luis v. Dennis, 751 F.2d 604, 608 (3rd Cir.1984); Super Products
Corp. v. DP Way Corp., 546 F.2d 748, 752 (7th Cir.1976); See Emory
v. Peeler, 756 F.2d 1547, 1552 (11th Cir.1985). Trimen's
admissions that GTEDPC had contacted Trimen's accounts after GTEDPC
filed its Complaint, therefore, do not establish that at the time
the Complaint was filed an actual case or controversy existed
between GTEDPC and Trimen. To make that determination, we must
look at the facts which existed at the time GTEDPC filed its
Complaint.
At the time the Complaint was filed, GTEDPC claimed to have
an absolute right under Florida law to contact Trimen's customers
as long as it acted in a lawful manner. Trimen had made it very
clear to GTEDPC that Trimen interpreted Ad-Vantage I to hold that
any such contact would constitute tortious interference with
Trimen's business relations. Trimen had also made it very clear
that if GTEDPC contacted Trimen's clients it would not hesitate to
sue GTEDPC for tortious interference. On top of this, Trimen
repeatedly reminded GTEDPC of the $500,000.00 punitive damages
award imposed against GTEDPC in Ad-Vantage I for tortiously
interfering with Ad-Vantage's customers. These positions were
crystallized in early December when Trimen, acting through
Blumberg, wrote to GTEDPC claiming GTEDPC was "in the process of
contacting accounts you were advised not to contact." (Plaintiff's
Ex. 91). GTEDPC denied contacting any of Trimen's national
accounts. (Plaintiff's Ex. 92). Blumberg wrote back to GTEDPC
again claiming GTEDPC was contacting Trimen's clients.
(Plaintiff's Ex. 93). Blumberg's letter concluded by stating "I
would expect that after numerous warnings, your company will abide
by our request NOT TO CONTACT OUR CLIENTS!!!! " Id.
Thus, at the time the Complaint was filed, GTEDPC wished to
engage in the specific conduct of contacting Trimen's customers,
and Trimen claimed any such contact would result in a lawsuit
against GTEDPC. We believe these circumstances presented a
justiciable controversy between GTEDPC and Trimen.
The practical effect of finding no case or controversy in the
instant case would be to force GTEDPC to contact Trimen's clients
thereby subjecting itself to potential liability before allowing it
to receive a declaratory judgment. GTEDPC is not required to take
such action for an actual case or controversy to exist. Steffel v.
Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 1215-16, 39 L.Ed.2d 505
(1974); Bingham, Ltd. v. Smith, 774 F.2d 1069, 1072 (11th
Cir.1985); Crowley Cutlery Co. v. U.S., 849 F.2d 273, 276 (7th
Cir.1988); Babbitt v. United Farm Workers National Union, 442 U.S.
289, 298-99, 99 S.Ct. 2301, 2308-09, 60 L.Ed.2d 895 (1979);
National Basketball Ass'n v. SDC Basketball Club, 815 F.2d 562 (9th
Cir.1987), cert. dismissed sub nom. Los Angeles Memorial Coliseum
Commission v. National Basketball Assn. et al., 484 U.S. 960, 108
S.Ct. 362, 98 L.Ed.2d 386 (1987). Regarding this issue, we find
National Basketball Association particularly on point.
In that case, the former San Diego Clippers, a member of the
National Basketball Association (NBA), moved their franchise from
San Diego to Los Angeles without NBA approval. The NBA opposed the
move; however, it took no immediate action against the Clippers
due to the Clippers' threats to sue the NBA for antitrust
violations if it took any action adverse to the move. The NBA
subsequently filed a declaratory judgment action in the Southern
District of California seeking a declaration that it could
investigate the Clippers move and sanction the Clippers for
violating NBA rules without violating antitrust laws. The Clippers
argued "since the NBA ha[d] taken no affirmative action to sanction
[them] or deny them scheduling rights in Los Angeles, the issues of
the case [were] not sufficiently refined to allow federal
jurisdiction." Id. at 565. The United States Court of Appeals for
the Ninth Circuit disagreed, finding an actual case or controversy
existed between the parties.
The NBA's claims meet the requirements of the test. The
Clippers' ... alternative formulation of case and controversy
would force the NBA to impose a fine or sanction on the
Clippers before an action could accrue. This is the type of
Damoclean threat that the Declaratory Judgment Act is designed
to avoid. Since the NBAs "real and reasonable apprehension,"
was that any action on the Clippers' move could result in
antitrust liability, the case is justiciable.
Id. at 566 (citation omitted).
In the instant case, GTEDPC's real and reasonable apprehension
was that contacting Trimen's clients could result in liability for
tortious interference with Trimen's business relations. Adding
even more immediacy to GTEDPC's fears was the previous $500,000.00
punitive damages award resulting from Ad-Vantage I.
Finding a case or controversy on these facts does result in
entertaining a declaratory judgment action on a somewhat
hypothetical set of facts; however, this is the case in many suits
for declaratory judgment. 10A C. WRIGHT, A. MILLER & M. KANE, FEDERAL
PRACTICE AND PROCEDURE, § 2757, at 586 (2d ed. 1983) [hereinafter WRIGHT
& MILLER].
It is clear that in some instances a declaratory judgment is
proper even though there are future contingencies that will
determine whether a controversy ever actually becomes real.
The familiar type of suit in which a liability insurer seeks
a declaration that it will not be liable to indemnify an
insured person for any damages the injured person may recover
against the insured is an example. The injured person may not
sue or he may not obtain a judgment against the insured, but
there is held to be sufficient controversy between the insurer
and the injured person that a declaratory judgment is
permissible.
Id. "That the liability may be contingent does not necessarily
defeat jurisdiction of a declaratory judgment action." Associated
Indem. v. Fairchild Industries, 961 F.2d 32, 35 (2nd Cir.1992)
(citations omitted). Rather, "the practical likelihood that the
contingencies will occur and that the controversy is a real one
should be decisive in determining whether an actual controversy
exists." 10A WRIGHT & MILLER, supra at 587.
In the instant case, at the time the Complaint was filed the
practical likelihood that GTEDPC would contact Trimen's customers
and that Trimen would then sue was very high. In fact, as Trimen's
assertions of improper contact of its clients by GTEDPC prior to
GTEDPC filing its Complaint shows, it was almost inevitable. As it
turned out, all the contingencies in this case had disappeared by
the time the case went to trial, because GTEDPC had contacted
Trimen's clients and Trimen had filed suit against GTEDPC. While
this knowledge cannot be used to create a case or controversy at
the time the Complaint was filed, the subsequent course of events
reinforces our belief that at the time the Complaint was filed
there was "a real and substantial controversy admitting of specific
relief through a decree of a conclusive character as distinguished
from an opinion advising what the law would be upon a hypothetical
state of facts." Aetna Life Ins. Co. v. Haworth, 300 U.S. 227,
240-41, 57 S.Ct. 461, 463-64, 81 L.Ed. 617 (1937).
We do not believe Hendrix v. Poonai, 662 F.2d 719 (11th
Cir.1981), requires a different result. In Hendrix, a hospital
revoked the hospital privileges of Dr. Anila Poonai. Dr. P.V.
Poonai, Dr. Anila Poonai's husband, subsequently voluntarily
resigned from the hospital staff. The Drs. Poonai filed suit
against the hospital alleging antitrust and civil rights
violations. About a year later, Dr. P.V. Poonai applied for
readmission to the hospital staff. In response, the hospital
sought to add a counterclaim to the Drs. Poonais' lawsuit asking
for a declaration that if Dr. P.V. Poonai's application was denied
pursuant to the bylaws of the hospital, that refusal would not
violate federal antitrust laws. Id. at 720.
The district court denied the hospital's request to add the
counterclaim. The hospital then filed a separate suit seeking the
same declaration. The district court dismissed the hospital's suit
for lack of a case or controversy. This Court affirmed the
dismissal finding:
[i]n essence, the appellants are seeking a declaration that if
they deny appellee's readmission application, and if the
appellee subsequently brings an antitrust action based on that
denial, then the appellants will be protected from liability
by virtue of the Parker v. Brown and Noerr-Pennington
doctrines. We believe that a declaration to this effect would
constitute an impermissible "opinion advising what the law
would be upon a hypothetical state of facts."
Id. at 722 (quoting Aetna Life Ins. Co., 300 U.S. at 241, 57 S.Ct.
at 464) (footnote omitted).
We are in complete agreement with the result of Hendrix. In
that case, "the practical likelihood that the contingencies [would]
occur,"—namely the hospital denying Dr. P.V. Poonai's application
and Dr. Poonai subsequently suing the hospital claiming the denial
of his application violated federal antitrust laws—were not great
enough to create a justiciable case or controversy. 10A W RIGHT &
MILLER, at 587. There was no clear indication the hospital would
deny Dr. P.V. Poonai's application; after all his hospital
privileges had not been revoked, he voluntarily surrendered them.
Furthermore, Dr. P.V. Poonai had not threatened the hospital with
any new lawsuit if his application for readmission was denied. On
those facts, no case or controversy existed.
As Hendrix points out "[o]f necessity, the determination
whether a "controversy' is presented must be made on a case-by-case
basis." Hendrix, 662 F.2d at 722 (citation omitted). In the
instant case we believe that the history of the parties and the
facts as they existed at the time GTEDPC filed its Complaint,
created a justiciable case or controversy. While there is
certainly no bright line separating Hendrix from this case, as
Justice Murphy stated in his oft quoted passage from Maryland
Casualty Co., "the difference between an abstract question and a
"controversy' contemplated by the Declaratory Judgment act is
necessarily one of degree...." Maryland Cas. Co., 312 U.S. at 273,
61 S.Ct. at 512.
We are not persuaded by Trimen's argument that since there are
two "ifs" in this case—if GTEDPC contacts Trimen's clients and if
Trimen sues, then GTEDPC is not liable for tortious
interference—requires a finding that no case or controversy exists.
As Professors Wright and Miller point out, the standard declaratory
judgment action brought by a liability insurer against its insured
often times contains two "ifs," if the insured is sued and if he is
found liable, then there is no duty to indemnify. 10A W RIGHT &
MILLER, p. 586. The crucial consideration is the practical
likelihood that the contingencies will occur and, as we have
previously discussed, the practical likelihood that the
contingencies in the instant case would occur were all but certain.
We find that a justiciable case or controversy exists between
GTEDPC and Trimen. Accordingly, we must respectfully reverse the
decision of the district court.
III. Denial of GTEDPC's Motion to Amend its Amended Complaint
The district court's order denying GTEDPC's motion to amend
its Amended Complaint is reviewed for an abuse of discretion.
Cannon v. Macon County, 1 F.3d 1558, 1565-66 (11th Cir.1993),
modified, 15 F.3d 1022 (1994).
On May 13, 1992, the district court entered a docket control
order stating that "[t]he joinder of other parties and the
amendments to pleadings shall be completed no later than April 15,
1993." GTEDPC filed its motion to amend on April 5, 1993. Thus,
GTEDPC's motion was timely.
A thorough review of the record establish beyond a doubt that
Blumberg must be made a defendant in this action if it is to have
any permanent meaning. The accounts GTEDPC wishes to contact or
has already contacted are regarded by Blumberg as his. The CMRs
come and go; however, Blumberg always remains. This point is
clearly illustrated by the following passage from the bench trial
below.
THE COURT: You control [Trimen]
MR. BLUMBERG: National sales manager for the company.
THE COURT: Sir?
MR. BLUMBERG: National sales manager.
THE COURT: Well, I didn't ask that. I asked if you control
[Trimen].
MR. BLUMBERG: Yes, I do.
Without Blumberg being joined as a defendant, even if GTEDPC were
to receive a favorable declaration against Trimen, that declaration
would be a hollow victory. This dispute between GTEDPC and
Blumberg must end. To accomplish that goal, Blumberg must be made
a party to this litigation. Accordingly, we must reverse the
district court's denial of GTEDPC's motion to amend its Amended
Complaint.
IV. Conclusion
We find an actual case or controversy exists between GTEDPC
and Trimen. Furthermore, we find the district court abused its
discretion in denying GTEDPC's motion to amend its Amended
Complaint.
Accordingly, this case is REVERSED and REMANDED to the
district court for further proceedings consistent with this
opinion.