Pursuant to C.P.L.R. § 3001, a cour may declare "the rights and other legal relations of the paries to a justiciable controversy." N.Y. C.P.L.R. § 3001.

Section 1367, therefore, canot provide the basis for a federal claim under section 2201. To be sure, Plaintiffs could try to recast their cause of action as a claim for declaratory judgment under N.Y. C.P.L.R. § 3001, but such an amendment would be futile. The law of New York is even stricter than federal law regarding declaratory judgments on contingent claims.

Moreover, Plaintiffs are not signatories to, nor are they even mentioned in, the Settlement Agreements, they were not part of any activities forming the basis for such agreements, and they were not paries to any of the contract negotiations between and among Defendants. By this action, Plaintiffs are properly seeking a declaration pursuant to N.Y. C.P.L.R. § 3001 that they are entitled to their 8 Case 1:10-cv-00726-RPP Document 9 Filed 04/01/2010 Page 12 of 18 respective one-half interest in any and all joint tax refunds received by them and their husbands, and their right to these monies has not been assigned to FCStone in the Adams Assignent, the Walford Assignment, or otherwise.

“A ‘declaratory judgment’ declares the rights of the parties or expresses the opinion of the court on a question of law without seeking execution or performance from the opposing party . . . for the purpose of guiding future conduct.” 26 C.J.S. Declaratory Judgments § 1. Under the New York statutes, a “court may render a declaratory judgment having the effect of a final judgment as to the rights and other legal relations of the parties to a justiciable controversy whether or not further relief is or could be Case 0:09-cv-00210-PJS-SRN Document 143 Filed 11/25/09 Page 8 of 21 - 8 - claimed.” N.Y. C.P.L.R. § 3001 (2009); see also 43 N.Y. Jur. 2d Declaratory Judgments § 1. The AOD is not declaratory relief. It neither expresses the opinion of a court on any question of law, nor offers any final judgment about the rights and legal relations of the NYAG and United. Instead, it is a contract requiring performance from both the NYAG and United.

A. Defendants Have Asserted a Claim Based on Arizona Law, and Seek Recovery of Their Attorneys’ Fees Under Arizona Law. In Count Three of their Amended Answer and Counterclaim (“Counterclaim”), Defendants seek declaratory relief under Arizona Revised Statutes (“A.R.S.”) § 12-1832.4 If New York law applied to this action, then relief should properly have been sought under New York’s declaratory judgment statute, New York Civil Practice Law and Rules § 3001. Moreover, by affirmatively seeking relief under Arizona law, Defendants have engaged in conduct that “warrants an inference” that they have “intentionally relinquished their right to assert that New York law applies.”5