be able to defeat plaintiff's rights by delaying its procurement of the information beyond the date of the stockholders meeting or even unreasonably near to it. See ibid. And this in turn suggests that to prevent frustration of the purpose by the overly prompt action of the defendants, equitable intervention is warranted.
In opposition to this proposition, defendants rely on American Hardware Corp. v. Savage Arms Corp., 37 Del. Ch. 59, 136 A.2d 690 (Del.Sup.Ct.1957), in which plaintiff stockholder had asked "that a meeting legally and duly called for the consideration of a proposed plan for the purchase of certain assets should be adjourned by court order to enable an objecting stockholder to submit to the individual stockholders a wholly unrelated plan." 136 A.2d at 692. This the Delaware Supreme Court declined to do, even though the defendants had allegedly been dilatory in supplying plaintiff with the stockholders list and financial and other information. Plaintiff had asked for the list and information only to enable it to complete the registration statement for the proposal that the court found unrelated to the subject of the meeting. In those circumstances it was decided that "the defendants' delay, if it existed, could not justify an adjournment of the meeting." Id. at 693.
The distinction between that case and this is plain. There the plaintiff's plan was unrelated to the meeting; here it is intimately connected with the subject of the meeting. There the plaintiff was about to make a wholly different offer; here it desires only to oppose the very offer being made. If anything pertinent to the instant case can be gleaned from American Hardware, it is this: had the two proposals been found to be related, an injunction to postpone the meeting would have been an appropriate remedy to undo the unfair consequences of defendants' wrongful delay.
In this case, as I have suggested, the positions of the plaintiff and defendants are as related as the two sides of a single coin. As in Steinberg, the "irreparable loss which would be sustained by the plaintiff if the interlocutory relief were not granted is the interference with the rights which the plaintiff previously enjoyed to have full and complete access to the records of the company * * * a sufficient length of time in advance of the annual meeting of the stockholders, to enable him to communicate with the stockholders as to the conditions and status of the company." 76 F. Supp. at 441. There is, therefore, no question of granting mandamus or its equivalent here. That remedy would be inadequate, because it could make no provision for controlling the time of the stockholders meeting.
But even if that were not so, it is by no means certain that the federal diversity court could not grant mandamus when that remedy would be granted by a state court as a matter of state law. The cases defendants cite, holding mandamus to be beyond the powers of the federal courts, do not specifically consider the question in the context of a state mandamus statute sought to be applied in the federal court under Erie [ Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188]. As Loss remarks, "on the assumption that the equitable remedial rights doctrine is dead * * * the statutory case is easy: the federal courts will use the state statute * * *." 2 Loss 1005. But see Newark Morning Ledger Co. v. Republican Company, 188 F. Supp. 813 (D.Mass.1960).
For Erie purposes, the "remedy" of mandamus may be a matter of substantive state law which the diversity court would be bound to apply. Where, for example, the state courts would grant equitable relief, "the witholding of federal equitable relief would be inconsistent with the 'outcome determinative' test of York."
Id. at 1005-1006. The same can be said for the legal right to mandamus. For if, as Hanna v. Plumer, 380 U.S. 460, 85 S. Ct. 1136, 14 L. Ed. 2d 8 (1965) asserts, the "twin aims of the Erie rule" are the "discouragement of forum-shopping and avoidance of inequitable administration of the laws," id. at 468, 85 S. Ct. at 1142, it would seem as important to insure that a diversity plaintiff get no less in the federal courts than he could in the state courts (except for "housekeeping rules," id. at 473, 85 S. Ct. 1136), as it is that he get no more.
To decide that a plaintiff who has otherwise properly invoked the diversity jurisdiction must seek his state rights in the state courts and not be permitted to make use of the mandamus remedy which would concededly be proper there would be to assume tacitly that when the general diversity jurisdiction conflicts with the otherwise limited federal jurisdiction, the former must always yield. In my view, the federal district courts have an obligation to attempt to make the diversity jurisdiction work. And if the federal courts under Erie could apply a state mandamus statute, they could, a fortiori, grant an injunction even if it is, as defendants protest, the indirect equivalent of mandamus.
Since the state mandamus remedy is inadequate - and probably even if it were found not to be - I am issuing a preliminary injunction against the holding of the meeting to consider the proposed transaction. The injunction is terminable on condition that defendants give to plaintiff what it has a right to under Pennsylvania law on a time schedule which will afford plaintiff a reasonable time to evaluate the information it gets as it bears on the proposed transaction. Plaintiff is granted leave to file its second amended complaint. F.R.Civ.P. 15(a). Defendants' objection thereto, which I treat also as a motion to dismiss, is denied.