35 F.R.D. 568 | D. N.Y. | 1964
Ingersoll-Rand Company filed a petitions under Fed.R.Civ.P. 27 to perpetuate testimony and gave notice to Thor Power-Tool Company as “an expected adverse-party” of an application for the order described in the petition.
The petition and application for an order were denied, with a memorandum, opinion, by order filed April 20, 1964, D. C., 35 F.R.D. 122.
A primary reason for denial of the petition was that Ingersoll-Rand did not. “tell us that it intends to make or sell the patented article”.
- Ingersoll-Rand now moves for reargument and renews its petition and application. An affidavit is submitted of the-Executive Vice-president of IngersollRand who states that “Ingersoll-Rand' knows it will commercially produce its. impulse tool within the next two years”.
Unless I am to disregard this sworn-statement, the purpose of Ingersoll-Rand “to make or sell the patented article”' seems now established.
It is also clear that Ingersoll-Rand and Thor are engaged in actual controversy. A denial of the petition might mean prejudice to one or both of the parties, because evidence might be lost or be otherwise unavailable. To grant the petition “may prevent a failure or delay of justice” (Fed.R.Civ.P. 27(a) (3)) and in any event can cause little, if any, harm to Thor.
Giving Rule 27 a “liberal construction”, -to which it has been declared to be entitled (Petition of Ernst, D.C., 2 F.R.D. .447, 450; S.D.Calif.1942), I am inclined to grant the petition and application^ See Martin v. Reynolds Metals Corp., 297 F.2d 49 (9th Cir. 1961); Mosseler v. United States, 158 F.2d 380 (2d Cir. 1946).
The motion for reargument is granted and on reargument the petition and application are granted. :
Settle order on notice. '
