Minneapolis Gasoline & Fuel Co. v. Ethyl Gasoline Corp.

2 F.R.D. 307 | S.D.N.Y. | 1941

MANDELBAUM, District Judge.

This is a motion to strike certain allegations from the complaint under the new Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. The courts are reluctant to strike matter from a complaint unless it has no relation to the controversy in any way, and a failure to strike such matter will unduly prejudice the adverse party. Raymond Brothers Motor Transportation Co., Inc., v. Socony-Vacuum Oil Company, Inc., et al., D.C., W.D. Wis., decided January 7, 1941¹; Huber Inc., v. Pillsbury Flour Mills Co., D.C., 30 F.Supp. 108; Samuel Goldwyn, Inc., v. United Artists, Corporation, D.C., 35 F. Supp. 633; Kraus v. General Motors Corp., D.C., 27 F.Supp. 537; Westmoreland Asbestos Co., Inc., v. Johns-Manville Corporation, D.C., 30 F.Supp. 389.

Paragraphs 20 to 29 recite the various steps in the suit brought by the United States Government. Defendants contend that these allegations may be read to the jury to the prejudice of defendants. This problem of the admissibility of those allegations, together with the admissibility in evidence of the government decree in the proceeding, can be had at the pre-trial conference. In any event, the defendants may take appropriate steps before the trial judge to prevent the plaintiff’s reading these allegations to a jury if such procedure should then appear improper.

Paragraphs 2, 3, 3a, 30 to 33 deal with the question of venue and will not be stricken. Hansen Packing Co. v. Armour & Co., D.C., 16 F.Supp. 784, 787.

The portions of paragraphs 13, 15 and 18 objected to deal with the controversy herein and their presence do not prejudice defendants.

From a reading of the complaint, the use of the word “defendants” in paragraphs 39 and 40 means defendants in the plural sense.

The motion is denied. Settle order.

1 No opinion for publication.