defendant's motion to dismiss this case or stay the proceedings. For the reasons set forth below, I will deny the motion to enjoin the Texas matter and enter an order staying all proceedings in this case until resolution of the case filed in Texas.
The first argument made by plaintiff in support of its motion is that Mr. McGookey won the race to the courthouse because he had "lulled" Omni into believing that their differences could be resolved amicably. In support of this claim, Omni points to a series of telephone conversations and letters it exchanged with McGookey during February and March of 1981. For example, plaintiff asserts that in a February 23, 1981 letter to Mr. McGookey it proposed terms for the sale of the contested prospects by Omni to third parties and that in a March 4, 1981 letter it restated the proposal with the proviso that if McGookey did not accept these terms by March 10, 1981, the offer would terminate. According to Omni, Mr. McGookey telephoned Warren Trainor, its general counsel, on March 10, 1981, to request an extension until March 13th to consider Omni's proposal. During this conversation, however, he failed to tell Mr. Trainor that he had caused a summons to be issued from the U. S. District Court in the Western District of Texas against Omni on that day. Similarly, in a March 16, 1981 telephone conversation with Mr. Trainor, Texas counsel for Mr. McGookey made no mention of the lawsuit filed by McGookey on March 12, 1981. Not until March 17, 1981 did defendant inform Omni that he had instituted litigation. In plaintiff's view, the conduct of McGookey and his representatives misled Omni, making it believe that it need not seek redress in the courts.
Defendant McGookey puts a different gloss on the negotiations occurring between Omni and him during the first months of 1981. According to him, the correspondence and telephone conversations between the parties focused on various proposals for the sale of certain disputed geological prospects, but neither party agreed to relinquish any rights under the contract or to forego litigation. Indeed, McGookey asserts that his letters to Omni show that he intended to take an "aggressive stance" in protecting his rights under the contract which, in his view, Omni had breached unlawfully. As an example, he cites a paragraph in his February 26, 1981 letter to Donald D. Drury, a Vice-President of Omni, which states:
It is understood and agreed that by acceptance of this letter neither Omni or McGookey waves (sic) any rights under the contract of May 8, 1980 and that this is a separate and independent agreement for new and independent work unrelated to those efforts described in the consulting contract of May 8, 1980.