Now for the second. After claiming the case was "moot" because Madison resigned, Marco told the Court to dismiss the action as moot and for lack of jurisdiction. Now read Madison's flip flop (compare the last post with this one):
I. ARGUMENTS
A. THE PLAINTIFF IS STILL THE RES HOLDER AND THE CLAIM IS NOT MOOT.
1. Plaintiff is in possession of the certified shareholders list and transfer log. Without these, transfer would be impossible with the DTC. Therefore, Plaintiff still maintains the res of the instant litigation.
2. 28 U.S.C. §1335 requires that the Plaintiff have at least the possibility to have the res delivered. If Defendant CHAVARRIA or Defendant NETCO INVESTMENTS, Inc. (“NETCO”), once proper authority is established, paid the Plaintiff the sums owed to it, then the Plaintiff may be reengaged and facilitate transfer. Thus, Plaintiff maintains the ability to perform the service, which technically isn’t a res but for instant purposes will not be presently contested, with reservation of all rights respectively, and thus in arguendo maintains the res.
3. However, Plaintiff has a lawful lien on said certified shareholder list and transfer log (“Transfer Documents”), and cannot break title thereof by transferring it to a non-registered transfer agent even if one of the non-Intervenor Defendants established authority, paid the sums outstanding, and requested the Transfer Documents.
4. Not withstanding the aforementioned, Plaintiff would very much not like to be a res holder in the instant litigation and highly encourages an adjudication in the instant litigation. To that end, Plaintiff acknowledges this Honorable Court’s authority to Order the Plaintiff to ship the Transfer Documents to whomever it may direct upon receipt of the sums owed.
5. To that end, Plaintiff would respectfully add a friendly amendment to Defendant CHAVARRIA’s motion to dismiss by requesting that the Transfer Documents be escrowed with this Honorable Court for Delivery Versus Payment (“DVP”) of sums owed and thus inexorably remove the res from the Plaintiff.
B. ADVERSE CLAIMS STILL ABOUND.
6. The purpose of an Interpleader, in sum and substance, is to resolve an inherent conflict and remedy what appears to be amiss. Resolving any conflict of a proper chain of authority in Defendant NCVT can only be in the best interest of the company registrant NCVT, all parties to the instant litigation, and the SHAREHOLDERS.
7. The Plaintiff is not in possession of any shareholder votes appointing Defendant CHAVARRIA to the Board of Directors, nor any of Mr. CHAVARRIA’s representatives. As such a clear title cannot be established, and the SHAREHOLDERS have thus been disenfranchised. Plaintiff, strictly speaking, has no fiduciary obligation to NCVT shareholders, and as such is technically speaking out of turn, but respectfully reminds this Honorable Court that all SHAREHOLDERS are potentially adverse claimants if they have been deprived of a vote.
8. Moreover, the Intervenors are adverse claimants, as their convertible instruments, albeit currently contested by Defendant CHAVARRIA, fully diluted may constitute a bid for majority interest. Also, in the same vein, there are apparently other classes of securities, preferred classes (See Schedule 14C, filed with the SEC on November 3rd, 2004), which are also adverse claimants, although Plaintiff does not transfer any preferred classes as there is no public market for them. Lastly, the absence of a voice for Defendant NETCO, does not equate to legitimacy for transfer of authority.
9. If Defendant CHAVARRIA can produce the conversion of the Cognovit Note and a vote of the shareholders, complete with proof of mailing proxy material, it may be that could alleviate potential adverse claimants as prior notification; but such adjudication would be up to this Honorable Court, respectfully.
C. THE COURT STILL HAS JURISDICTION.
10. 28 U.S.C. §1367 permits the Court to exercise supplemental jurisdiction. §1367 provides, in relevant part:
(a) Except as provided in subsections (b) and (c) . . ., in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.1
11. Some courts have, however, permitted intervention by such non-indispensable parties and retained jurisdiction over the controversy on the ground that the claim or defense of the intervenor is 'ancillary' to the main action and that its inclusion does not destroy the jurisdiction formerly founded upon diversity of Citizenship. In Wichita R. & Light Co. v. Public Utility Commission, 260 U.S. 48, 43 S.Ct. 51, 67 L.Ed. 124, the Supreme Court held that diversity jurisdiction continued in spite of intervention by a party defendant of the same state as plaintiff. The intervention in that case, however, although not technically an intervention as of right was something very analogous to it.2
12. Defendant CHAVARRIA admits in his motion to dismiss that the Intervenors claims are ancillary.3
1 Colonial Pen Insurance Company v. American Centennial Insurance Co., et al 92 Civ. 3791; 1992 U.S. Dist. LEXIS 17552, 8 (S.D.N.Y., 1992, RPP)
2 Curtis v. American Book Company; 137 F. Supp. 950, 952 (S.D.N.Y. 1955, Walsh)
3 See Defendant CHAVARRIA’s motion to dismiss III. Discussion, C. [lacking independent jurisdiction]
13. Plaintiff respectfully asserts that the instant litigation should be adjudicated while all parties are joined in this Honorable Court. Otherwise it is Plaintiff’s fear that the instant litigation will spark ancillary litigations in a myriad of jurisdictions.
II. CONCLUSION.
14. Plaintiff has done his job by bringing together all those stakeholders, or averred stakeholders, in the current matter. Plaintiff has no interest in who prevails, if indeed anyone could be said to prevail from this. Plaintiff beseeches this Honorable Court to escrow the Transfer Documents DVP for the sums owed to it, and discharge Plaintiff. But for the Plaintiff being entitled to the just fees owed to it by the registrant NCVT, Plaintiff would attempt to withdraw the entire litigation and let parties with a vested interest in the outcome spend their money in litigation.
15. In summation, PLEASE DISCHARGE PLAINTIFF.
Dated: Carle Place, New York
May 21st, 2007
Respectfully Submitted,
MARSHAL SHICHTMAN & ASSOCIATES, P.C.
__________________________________
Marshal Shichtman, Esq. (MDS 4012)
Attorney
AI
