CHURCH OF SCIENTOLOGY OF CALIFORNIA and Founding Church of Scientology of
                         Washington, D. C., Plaintiffs,
                                       v.
    James SIEGELMAN, Flo Conway, J. B. Lippincott Company and Morris Deutsch,
                                   Defendants.
                             No. 79 Civ. 1166 (GLG).
                  United States District Court, S. D. New York.
                                  May 30, 1980.
  After announcing its intention to dismiss the action because of plaintiff's
 failure to comply with discovery orders, the District Court, Goettel, J., held
 that: (1) even though counterclaims remained, there was no reason for delaying
 entry of judgment dismissing the complaint, and (2) court would award costs for
 failure to comply with discovery requests.
  Order accordingly.
  See also, D.C., 471 F.Supp. 950 and D.C., 481 F.Supp. 866.

 [1] MALICIOUS PROSECUTION
 Claim essentially arising in malicious prosecution should not be commenced
 until there has been a favorable determination of the underlying litigation.

 [2] FEDERAL CIVIL PROCEDURE
 Where questions concerning discovery which led to trial court's dismissal of
 the complaint for failure to comply with discovery orders would arise in
 prosecution of the counterclaims and where court would have been inclined, had
 the motion been made, to have entertained a stay of counterclaims, which
 sounded in malicious prosecution, until the main action was determined on the
 merits, court would enter order stating that there was no reason for delaying
 entry of judgment dismissing the complaint for refusal to make discovery.
 Fed.Rules Civ.Proc. Rule 54(b), 28 U.S.C.A.

 [3] FEDERAL CIVIL PROCEDURE
 Attorney fees can only be granted where there is clear evidence that the claims
 are entirely without basis and asserted for purposes of harassment.

 [4] FEDERAL CIVIL PROCEDURE
 Where complaint was being dismissed on legal grounds and where defendants'
 counterclaims which sounded in malicious prosecution would undoubtedly seek as
 damages the cost of defending the original suit, it was inappropriate to assess
 attorney fees.

 [5] FEDERAL CIVIL PROCEDURE
 Where plaintiffs continually stated that, if there were a final direction to
 make discovery, plaintiffs would do so, and where plaintiffs thereafter
 announced that they would not make discovery under any circumstances after all
 avenues had been exhausted, court would award $2,000 in costs to the defendants
 because of the plaintiffs' failure to comply with discovery requests.
 Fed.Rules Civ.Proc. Rule 37, 28 U.S.C.A.
  *554 Cohn, Glickstein, Lurie, Lubell & Lubell, New York City, for
 plaintiffs; Jonathan W. Lubell, New York City, of counsel.
  Clark, Wulf, Levine & Peratis, New York City, for defendants, Siegelman and
 Conway; Melvin L. Wulf, New York City, of counsel.
  Lester, Schwab, Katz & Dwyer, New York City, for defendant, Lippincott;
 Patrick A. Lyons, New York City, of counsel.
  Rosner & Rosner, New York City, for defendant, Deutsch; Jonathan L. Rosner,
 New York City, of counsel.
                                     OPINION

  GOETTEL, District Judge:
  At a hearing held on this matter on May 13, 1980, this Court indicated, for
 reasons stated on the record, its intention to dismiss the plaintiffs'
 complaint in view of their refusal to make discovery. There remained, however,
 the question as to whether a Rule 54(b) certification should be issued as to
 the claims dismissed, and whether attorneys' fees and additional costs should
 be assessed. Before these matters could be determined, it was discovered that
 the attorney who had been appearing on behalf of plaintiff was not admitted to
 practice in this court. The matter could not, therefore, proceed, and attorneys
 of record were given additional time in which to submit papers. The following
 is the Court's decision with respect to the unresolved issues.
                            Rule 54(b) Certification
  With the dismissal of the claims asserted against defendant Deutsch the Court
 has now dismissed all of the plaintiffs' claims. (Previously, the Court had, on
 the merits, dismissed as against all of the other defendants. Church of
 Scientology of California v. Siegelman, 475 F.Supp. 950 (S.D.N.Y.1979)).
 Additionally, most of the counterclaims asserted by the individual defendants
 have also been dismissed. As to each of the individual defendants, however, a
 counterclaim for prima facie tort remains. Nevertheless, this Court expressly
 determines that despite these remaining counterclaims no just reason for delay
 exists, and hereby directs the Clerk, pursuant to Fed.R.Civ.P. 54(b), to
 enter judgment in favor of defendant Deutsch. In light of the ruling of the
 Second Circuit in Cullen v. Margiotta, 618 F.2d 226 (2d Cir. 1980), the
 following brief and reasoned explanation for certifying the entry of judgment
 is offered.
  [1][2] The remaining counterclaims for prima facie tort are, at least
 technically, not premature, as at least some of the acts alleged therein
 purportedly occurred prior to the commencement of the instant action. These
 claims, however, are, in essence, ones for malicious prosecution, with some
 additions. As this Court indicated in its earlier opinion, a claim essentially
 arising in malicious prosecution should not be commenced until there has been a
 favorable termination of the underlying litigation. Church of Scientology of
 California v. Siegelman, supra. Consequently, the Court would have been
 inclined, had a motion been made, to have entertained a stay of each
 counterclaim until the plaintiffs' action had been *555 determined on the
 merits. That being so, there is no reason for delaying entry of judgment
 disposing of plaintiffs' case. The judgment should include all discovery and
 special costs assessed against plaintiff, as well as the usual costs upon entry
 of judgment.
  An additional reason for certifying judgment is that the question concerning
 discovery will arise again in the prosecution of the counterclaims. Although
 the considerations concerning the need for the discovery will not be identical
 as to the counterclaims, the reasons for opposing the discovery by the Church
 of Scientology can be expected to be the same. And, while it is relatively easy
 to deal with a plaintiffs' refusal to make discovery, by giving them the
 alternative of either complying with the discovery demand or having their case
 dismissed, it is quite difficult to find a suitable remedy when it is a
 defendant on counterclaim who is resisting discovery. The discovery involved
 relates not only to liability, but also to the amount of damages. As a result,
 it would be quite difficult to structure any sanction adequately disposing of
 the problem. That being the case, it is highly desirable to obtain appellate
 review of this Court's earlier rulings on discovery for guidance before
 proceeding further. Curtiss-Wright Corporation v. General Electric
 Company, --- U.S. ----, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980).
                            Attorneys' Fees and Costs
  [3][4] A claim for attorneys' fees can only be granted when there is "clear
 evidence" that the claims are entirely without basis and asserted for purposes
 of harassment. While the actions of plaintiffs to date definitely suggest that
 this may be the case, this Court has held no hearings on the merits of the
 case, and as a result is not in a position to make a reasoned determination of
 the facts. This action is being dismissed on legal grounds. Additionally, the
 defendants in their counterclaims will undoubtedly seek as damages the cost of
 defending the original suit. Under these circumstances, it is inappropriate at
 this time to assess attorneys' fees. Nemeroff v. Abelson, 620 F.2d 339 (2d
 Cir. 1980).
  [5] This Court is, however, authorized under Rule 37, Fed.R.Civ.P., to
 impose costs and fees where a party fails to comply with discovery requests.
 (There have been prior assessments against the plaintiffs.) During the course
 of the eight motions made by plaintiffs it was stated that if there was a final
 direction to make discovery the plaintiff would do so. However, when all
 avenues had been exhausted (and re-exhausted), including an application for an
 interim appeal, plaintiff announced that it would not make the discovery under
 any circumstance. Much needless and protracted time and expense was involved in
 reaching this position. Consequently, an additional $2,000 in costs is hereby
 assessed against the plaintiff, to be paid by plaintiffs' counsel. 28 U.S.C.
 s 1927. Finally, the defendant, in billing its costs upon entry of judgment,
 may seek to recover all expenses involved in the taking of depositions (except
 attorneys' fees) since such were unnecessary in light of the plaintiffs'
 ultimate position as to discovery.
                                   Conclusion
  The action against defendant Deutsch is hereby dismissed. The Clerk is
 directed to enter judgment in accordance herewith pursuant to Fed.R.Civ.P.
 54(b).
  SO ORDERED.