GTE Directories Publishing Corp. v. Trimen America, Inc.

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.