Diapulse Manufacturing Corp. v. Birtcher Corp.

This damage action for libel was dismissed by the district court because similar actions between the same parties were already pending in a district court in another state. In both states the jurisdiction of the district court was based on diversity of citizenship.

Plaintiffs appeal, contending that the court was without power to dismiss the action on this ground and that, if such power existed, it was an abuse of discretion to exercise it under the circumstances of this case. Instead, it is argued, the court should have stayed the proceedings in this action pending disposition of the other suits.

The facts relating to this appeal are not in dispute. On February 15, 1961, Diapulse Manufacturing Corp. of America (Diapulse), Abraham J. Ginsberg, Jesse Ross, appellants herein, and others, commenced in action against The Birt-cher Corporation and Cecil J. Birtcher, appellees herein, in the Supreme Court of the State of New York, County of Nassau. The Birtcher Corporation is a California corporation and Cecil J. Birtcher is a citizen and resident of California. The action was one to recover damages for libel. Because of diversity of citizenship, the action was removed to the United…