288 F. 957 | E.D.N.Y | 1923
This is an application for an order making Samuel Shapiro, Morris Berman, Harry Cohn, Samuel Cominsky, and the Reliance Metal Spinning & Stamping Company parties to this action, or in the alternative granting plaintiff leave to file a supplemental bill, for the purpose of making Samuel Shapiro, Morris Ber-man, Harry Cohn, and the Reliance Metal Spinning & Stamping Company parties to this action.
[ 1 ] The case has gone to a decree. Considerable testimony has been taken before a master. That record establishes clearly that the parties sought to be brought before the court as defendants herein have been so closely connected with the defendant Hygrade Righting Fixture Corporation as to bring _the application well within the rule laid down in the case of New Jersey Patent Co. et al. v. Schaeffer (C. C.) 159 Fed. 171, where it is said at page 173:
“Where an infringement of a patent is brought about by concert of action between a defendant and complainant's licensee, all engaged directly and intentionally become joint infringers. Heaton, etc., Button, etc., Co. v. Eureka Specialty Co., 77 Fed. 288, 25 C. C. A. 267, 35 L. R. A. 728; Wells, etc., Co. v. Abraham (C. C.) 146 Fed. 190, and 149 Fed. 408, 79 C. C. A. 228.”
And the cases of Eddy v. Kramer and Eddy v. Mather (D. C.) 247 Fed. 962;
“Directors of a corporation by whose direction acts of infringement are committed by subordinate officers or agents are liable individually therefor.”
Other authorities to the same effect are so numerous that no good purpose can be served by setting them-forth at length.
The record in this case discloses such a manifest attempt to evade responsibility by having the acts complained of done in the name of the defendant sued, with all the parties sought to be brought in actively engaged in the business of the defendant, either as officers of said defendant or as a corporation which, except in name, was really the defendant, that to permit them to escape liability would be to invite fraud. The record is so clear that the court will not dignify the opposition to the application by an analysis of the testimony. Recently the court has had occasion to grant an application by the master for an order requiring the individuals involved to pay his fees. Reasons which prompted the court to grant that application are similar to those here controlling.
The defendant, in opposition to the application, asserts in its brief that a supplemental bill will not be allowed where facts to be set up therein existed before suit, and by reasonable diligence could have been discovered and pleaded by way of amendment. The assertion is then made that there is nothing in the record to show that the individuals were using the defendant corporation as a blind to avoid
While the court may have power to join parties after decree (Foster’s Fed. Practice [6th Ed.] vol. 2, p. 1228, citing Coburn v. Cedar Valley Rand & Cattle Co., 138 U. S. 196-223, 11 Sup. Ct. 258, 34 L. Ed. 876), I have concluded to grant the alternative relief sought. Plaintiff may have leave to file a supplemental bill, making Samuel Shapiro, Morris Berman, Samuel Com'insky, Harry Cohn, and Reliance Metal Spinning & Stamping Company parties. See Root v. Woolworth, 150 U. S. 401, 14 Sup. Ct. 136, 37 L. Ed. 1123.
