Opinion
01 Civ. 11446 (LAK)
February 27, 2002
ORDER
Plaintiff brings this diversity action to recover for advertising services rendered to the defendant. Defendant claims that it contracted not only with plaintiff, but with plaintiff's affiliate, Saatchi Saatchi North America, Inc. ("Saatchi NA"). It moves to dismiss the action for failure to join Saatchi NA, an allegedly indispensable and nondiverse party whose presence would destroy diversity jurisdiction. There is a certain appeal to defendant's position.
The parties never entered into a written contract. Certainly the plaintiff and its affiliates presented themselves in a manner arguably at odds with its present contention that defendant contracted solely with plaintiff. The introductory presentation was made on slides which bore the Saatchi Saatchi logo and which did not mention Conill prominently or at all. Some correspondence from plaintiff to defendant is written on letterheads captioned as follows:
Saatchi Saatchi Conill Advertising, Inc.
It is not even clear whether there is an entity called Saatchi Saatchi Conill Advertising, Inc. Other correspondence is on Saatchi Saatchi letterhead which does not refer to Conill. Thus, it is reasonably plain that plaintiff at a minimum strove to create the impression that defendant would be dealing with Saatchi Saatchi, whatever precise corporate entities that may include, not merely with Conill Advertising, Inc. Indeed, based on the materials before the Court, plaintiff might justifiably have concluded that there was no such entity as Conill Advertising, Inc., as opposed to Saatchi Saatchi Conill Advertising, Inc. If plaintiff wanted to avoid such problems, it had only to tender a written contract making clear the precise identity of the party it proposed to have contract with plaintiff. So the confusion, if confusion there be, is all plaintiff's fault.
Defendant's position is appealing for another reason. Defendant has no assurance, based on plaintiff's papers, that some other entity will not sue it to recover for work for which plaintiff now seeks recovery. Of course, plaintiff and its affiliates could avoid this possibility too by the simple expedient of giving defendant a binding commitment that this will not occur. Despite plaintiff's outraged rhetoric, however, it has not seen fit to do so.
That is not to say that defendant's motion necessarily is meritorious. While there is an arguable case for the proposition that it contracted with Saatchi Saatchi something-or-other, it seems to have settled on Saatchi NA for no particular reason other than the fact that it is not of citizenship diverse from that of the defendant. Thus, it is not entirely clear that whatever Saatchi entity might conceivably sue plaintiff necessarily would not be of diverse citizenship.
No doubt the parties could spend thousands of dollars litigating all of these interesting factual and legal questions. But that would be wasteful. It suffices for the Court now to deny plaintiff's motion. If, on or before March 12, 2002, plaintiff files an instrument executed by Saatchi Saatchi Compton Worldwide, Inc. ("Worldwide"), the ultimate parent entity, indemnifying defendant against loss (whether as a result of costs of defense or liability) resulting from the assertion against defendant by Worldwide or any of its direct or indirect subsidiaries (other than plaintiff) of any claim for services allegedly rendered to defendant, the denial of the motion is with prejudice because none of the Worldwide affiliates would be an indispensable party. If such an instrument is not filed, the denial is without prejudice.
SO ORDERED.