15 F.2d 880 | E.D.N.Y | 1924
This suit comes before the court on a motion to dismiss the complaint on the several grounds stated in the notice of motion.
Equity rule 25 provides what a bill in equity must contain. No address to the court is required, although it is generally found in bills in equity.
In paragraph first of the complaint, the allegation of citizenship of the defendant Allied Die-Casting Corporation upon information and belief is in my opinion insufficient, as that allegation should be made affirmatively, or, if made upon information and belief, the facts must be shown on which the belief is founded. I hav.e found no authority directly in point, but in any event there is no allegation of citizenship of the defendant Edgar N. D.ollin, even upon information and belief.
As to the last-stated objection, the plaintiff asked leave to amend on the ground that it was an error caused by inadvertence, and I see no reason why both of these grounds cannot be cured by amendment.
The third paragraph of the complaint does not comply with equity rule 25, because it does not allege compliance with Bevised Statutes, §§ 4886 and 4887 (Comp. St. §§ 9430, 9431), and all facts necessary to show that the patentee was entitled to the patent in suit and to negative the facts which would defeat the patent, nor is any profert of the patent made. What the plaintiff does in the third paragraph of the complaint is to allege the evidence and fail to allege the ultimate facts upon which the plaintiff asks relief.
The patent itself is but prima facie evidence, and the allegation that it was granted is not an allegation of the ultimate facts upon which the plaintiff asks relief.
Plaintiff cites equity rule 18, which abrogates technical forms of pleading as the foundation of the simplified form of pleading used by it; but he misseS the point, it seems to me, for which the defendants are contending, and that is a compliance with another of the same rules, to wit, equity rule 25, in a matter of substance, not a technicality, because to require a pleading of facts, instead of evidence, is to apprise the defendants of what rights the plaintiff claims, rather than the evidence by which it intends to prove its rights.
It cannot be denied that there has been a difference of opinion in the courts as to the effect of rule 25, but in my opinion the weight of authority supports the holding that the new equity rules have not changed the pleading in patent eases, but only incorporate what was the practice of every good pleader before their adoption. Maxwell Steel Vault Co. v. National Casket Co. (D. C.) 205 F. 522; General Bakelite Co. v. Nikolas (D. C.) 207 F. 112; Bayley & Sons, Inc., v. Braunstein Bros. Co. (D. C.) 237 F. 671; Schaum & Uhlinger v. Copley-Plaza Operating Co. (D. C.) 243 F. 924. A somewhat more liberal
The fifth paragraph of the complaint does not comply with equity rule 25, in that it does not state the ultimate facts upon which the plaintiff asks relief, and under the allegations of that paragraph I fail to see how any judgment could be entered against the individual defendant, as no facts are alleged to show any infringement by him. Cazier v. Mackie-Lovejoy Mfg. Co., 138 F. 654, 71 C. C. A. 104; Davis et al. v. Motive Parts Corporation et al., 16 F.(2d) 148 (decision of Judge Knox, D. C. S. D. of N. Y.) and cases cited supra under the discussion as to paragraph third of the complaint.
It may well be that facts exist which are sufficient to support the claims of the plaintiff in whole or in part, and I am not prepared to say that this court has not jurisdiction because the citizenship of the defendant was alleged on information and belief; therefore this motion will be granted, dismissing the complaint, with costs, unless the plaintiff . shall file and serve an amended complaint in accordance with this opinion within 20 days after the entry and service of the order to be entered hereon, and pay to the defendants $10 costs.
