North Carolina Business Litigation Report

Wachovia Bank, N.A. v. Harbinger Capital Partners Master Fund I, Ltd., 2008 NCBC 6 (N.C. Super. Ct. March 13, 2008) (Diaz)

The Court granted a Motion to Stay in this case, ruling that the plaintiff was required to litigate its claims in New York, even though its North Carolina action had been filed before the New York action.   N.C.G.S. Sec. 1-75.12 in favor of their own later filed action.  The Court granted the Motion after considering the ten factors enumerated in Lawyers Mut. Liab. Ins. Co. v. Nexsen Pruett Jacobs & Pollard, 435 S.E.2d 571, 573 (N.C. App. 1993).

One reason the Court held that the plaintiff was not entitled to the choice of its home forum was that it knew before filing its own suit that Defendants intended to sue, and "if the plaintiff in the declaratory suit was on notice at the time of filing that the defendant was planning to file suit, a court should look beyond the filing dates to determine whether the declaratory suit is merely a strategic maneuver to achieve a preferable forum.”

The Court also considered, and rejected, plaintiff's argument that North Carolina's public policy demanded that New York law be rejected. It held, in reliance on North Carolina Supreme Court precedent, that "North Carolina's public policy exception to the comity generally afforded the laws of our sister states is a narrow one."

In the end, the Court determined that there was a "practical reality that the New York Action is better able to arrive at a more comprehensive resolution of the litigation, given the broader scope of claims and parties before it."

The Court did not resolve whether Defendant's filing its New York lawsuit was a violation of a preliminary injunction previously entered in the case limiting filing any "personal tort claims" in any other jurisdiction, and whether the Court had the authority to enjoin federal litigation.  Those matters are addressed in the briefs of the parties on the subject of contempt.

Full Opinion

Defendant's Brief in Support of Motion to Stay        Plaintiff's Brf. in Support of Motion for Contempt

Plaintiff's Brief Opposing Motion to Stay                  Defendant's Brf. Opposing Motion for Contempt

Defendant's Reply Brief on Motion to Stay               Plaintiff's Reply Brf. in Support of Mot. for Contempt

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Mack Sperling
Brooks Pierce, LLP
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Greensboro, NC 27401
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Raleigh, NC 27601
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