11 F.R.D. 210 | S.D.N.Y. | 1950
All five defendants move before answer to dismiss the complaint; they also seek a stay of further proceedings herein on the ground that plaintiff has not paid costs awarded in a prior action, which stated the same claims -here alleged.
Motion for stay:
The complaint in the present suit pleads claims identical to those alleged in a prior suit, which was dismissed on May 1, 1950, with costs awarded against plaintiff. These have not been paid. Two new defendants, T. J. Stevenson, Sr. and Jr., have been joined in this new'action. Motion for a stay is granted in favor of the three other named defendants. Rule 41(d), Fed.Rules Civ.Proc., 28 U.S.C.A.
Motion to dismiss:
The claims now pleaded may be asserted in this action notwithstanding the dismissal of the former action. Such dismissal does not operate as an adjudication on the merits under Rule 41(b). Russo v. Sofia Bros., Inc., D.C., 2 F.R.D. 80.
The complaint is dismissed, however, as not being a simple, concise and direct statement of plaintiff’s claims. It is plaintiff’s apparent purpose to plead, in the first count, a breach of contract and, in the second count, injury as a result of the alleged tortious acts of defendants. This purpose is not fulfilled by a complaint which does not permit of proper answer. Leave is granted plaintiff to serve an amended complaint within twenty days from date hereof. Such complaint shall state (1) whether plaintiff sues on one or more contracts, (2) the date and place said contracts were made, (3) whether such contracts were oral or written; if oral, their substance and terms are to be pleaded in detail in separate paragraphs; if written, copies are to be set forth as part of the. complaint, (4) how, by whom and when it is claimed the terms of the alleged contracts were breached, (5) what allegedly tortious acts were committed by each defendant and the date of their commission, (6) the details of
There is no need for this complaint to run the gamut of the judges of this court, as did the complaint in the prior action, The amended complaint, if plaintiff elects to serve one and otherwise comply with the orders above made, shall be served upon defendants’ attorneys and then submitted to nie. The defendants shall have ten days after such service to file any memorandum of objections. These pending motions shall also be considered as addressed to the amended complaint, if one is served.