211 F. 379 | W.D. Wash. | 1914
This is an action in equity in which the plaintiff seeks an injunction and damages. B. S. Sells is the only defendant upon whom service was obtained. Plaintiff is a corporation organized under the laws of New York, and the said defendant is a citizen of Oregon. Plaintiff alleges that it is the owner of the copv
The defendant Sells has moved to dismiss the bill, and contends that the bill does, not state a cause of action for infringement of copyright; that, although there is stated a cause'of action for unfair competition, the court has no jurisdiction for the reason that the amount in dispute is not over $3,000. It is contended that, in an action in equity for unfair cpmpetition, damages may not be recovered, and that the amount in dispute is therefore not over $3,000; no value of the injunction being alleged. Defendant further contends that a bill praying for an injunction and for damages improperly joins an action at law with an action in equity, and that the bill must be dismissed for that reason.
“We are satisfied itliat there is here no infringement of the right accruing to the appellee under the copyright laws of the United States. * * * The sale of them by the appellee carried with it the ordinary incidents of ownership in personal property, including the right of alienation (Harrison v. Mayn*382 ard, 10 C. C. A. 17, 61 Fed. 689); and the appellants, purchasing them, had the right to resell them. * * * It is urged, however, that the sale passed the right to the particular thing sold, and did not carry with it the right of repair or renewal. We cannot yield assent £o the proposition in the broad terms in which it is couched.” Singer Mfg. Co. v. Bent (C. C.) 41 Fed. 214; Harrison v. Maynard, 61 Fed. 689, 10 C. C. A. 17; Kipling v. Putman, 120 Fed. 631, 57 C. C. A. 295, 65 L. R. A. 873; Bobbs-Merfill Co. v. Straus (C. C.) 139 Fed. 155; Id., 147 Fed. 15, 77 C. C. A. 607, 15 L. R. A. (N. S.) 766.
The court in the Doan Case held, however, that, as the rebound books were likely to be mistaken by the public for the new books of the plaintiff, the placing of the rebound books upon the market, with nothing to distinguish them from plaintiff’s new books, constituted unfair competition, and that there should be displayed a notice on each book that it was a rebound or secondhand book.
But counsel for plaintiff states:
“If he (defendant) dealt in secondhand sets of the authorized and original work as and for secondhand sets, then counsel is correct, and under the authority of the Doan Case there would be no infringement, and our action would' be solely upon the ground of unfair competition; but the action set forth here is one of actual and fraudulent trading upon our copyright and in our copyright work, merely carried on by means of secondhand sets.”
“Where plaintiff has established a right to equitable relief, the court will not only grant that relief but all other relief essential to a complete adjust*383 ment of the subject-matter among the parties, although it is thereby required to grant relief obtainable at law, and which, if the object of an independent action, could be obtained at law. * * * Thus, the jurisdiction of equity having been invoked to restrain the further commission of wrongful acts, damages already suffered will quite generally be awarded.” 16 Cyc. 109, 110; Gottfried v. Moerlien (C. C.) 14 Fed. 170; Burdell v. Comstock (C. C.) 15 Fed. 695. See, also, Equity Rule 25 (198 Fed. xxv, 115 C. C. A. xxv)
[B] Both parties seem to agree that, where an injunction is prayed for, the amount in controversy is the value of the injunction, and this, undoubtedly, is the correct rule. 16 Am. & Eng. Enc. of Law, 351; Hagge v. Kansas City S. Ry. (C. C.) 104 Fed. 391.
It does not follow, however, that the court must dismiss the bill because the value of' the injunction is not alleged to exceed $3,000. The other jurisdictional facts appearing, the court should not dismiss a bill unless it clearly appears that the amount in controversy is less than that required by the statute. Wetmore v. Rymer, 169 U. S. 115, 18 Sup. Ct. 293, 42 L. Ed. 682; Barry v. Edmunds, 116 U. S. 550, 6 Sup. Ct. 501, 29 L. Ed. 729. When, from the allegations of the complaint, it may be inferred that the amount involved exceeds the amount required by the statute, the court should grant the plaintiff leave to move to amend.
In People’s Tel. & Tel. Co. v. East Tennessee Tel. Co., 103 Fed. 212, 43 C. C. A. 185, the court said:
“Tbe bill prays for an injunction, and also for a decree for the damages already incurred, and claims for the latter the sum of |3,000. No estimate is put or amount claimed for the value of the right, the invasion of which is anticipated. We should he disposed to agree with counsel for the appellants that there is no reasonable ground shown for believing that the damages al*384 ready incurred amount to so much as $2,000, but it seems to us very probable that the value of the right to preserve the property of the complainant from the anticipated disturbance is more than that sum. If this objection had been taken in the court below, it is reasonable to suppose that court would have allowed an amendment which would have made more certain' this ground of jurisdiction. And this would have been permissible.”
In Whalen v. Gordon, 95 Fed. 305, 37 C. C. A. 70, the objection was made that the granting of an amendment to bring the amount claimed within the statutory requirement was an amendment which would constitute a jurisdictional averment. The Circuit Court of Appeals said:
“The case appears to have been one, therefore, in which there was a sufficient amount in controversy to give the court jurisdiction, but the defendants in error had failed to plead it. Where the facts warrant the exercise of the jurisdiction of the court, but the pleader has failed to state them properly, the court is not deprived of the usual power to permit him to do so by amendment by the mere fact that the amendment will .constitute or contain a jurisdictional averment. Bowden v. Burnham, 8 C. C. A. 248, 59 Fed. 752, 19 U. S. App. 448; Carnegie, Phipps & Co. v. Hulbert, 16 C. C. A. 498, 70 Fed. 209, and 36 U. S. App. 81, 97.”
In Home Ins. Co. v. Nobles (C. C.) 63 Fed. 641, the bill praying for an injunction alleged that the acts of the defendants “have already caused great damage to it which will increase daily,” but there was- no allegation of the amount of damages sustained or anticipated. The court said:
“The bill is therefore defective for want of .averment that the amount in controversy is sufficient, under the act of Congress, to give this court jurisdiction. Consequently the present motion for a preliminary injunction• cannot be entertained ; but, as it does not affirmatively appear that the court is without jurisdiction of the causé, the bill, will not now be dismissed, and the complainant has leave to move as it may be advised in view of this suggestion, upon due notice to defendant’s counsel.”
See, also, Johnston v. Trippe (C. C.) 33 Fed. 530; Carr v. Fife (C. C.) 45 Fed. 209; Id., 156 U. S. 494, 15 Sup. Ct. 427, 39 L. Ed. 508.
Plaintiff may have leave to move to amend its bill for the purpose indicated, and, if it does not do so within ten days, the bill will be dismissed.