14 F.R.D. 75 | D.D.C. | 1952
The amended complaint seeks relief with respect to a lease entered into between the plaintiff, who is a resident of Maryland, the involuntary plaintiffs and one Diana Epstein, as co-partners trading as “The Howard Theatre,” lessor, and the defendant Rex Amusement Company, a corporation, lessee; on May 1, 1948, with respect to certain property situate in the District of Columbia, known as 620 T Street, N.W. which lease is for a term of fifteen years .from the first day of June 1948, for a total rent or sum of $450,000, payable monthly in advance in the sum of $2,500 on the first day of each month during said term, which rent is to be paid' the lessor “at Howard Theatre, C/o Rooney, Inc., 8782 Sunset Boulevard, Los Angeles 46, Calif., Attention: Samuel H. Stiefel, or at such other place as the Lessor in writing may require.” It is alleged in the amended complaint that plaintiff owns an undivided interest, being 5 per centum, of the property covered by said lease, and, therefore 5 per cent of the rents accruing under said lease. The plaintiff alleges that, without her consent and over her objections, but with the consent of the involuntary plaintiffs Nathan A. Stiefel, Samuel H. Stiefel and Alexander G. Stiefel, the defendant has made personal loans of large sums of money to the involuntary plaintiff Samuel Stiefel, and by reason of said transactions the rent provided under the lease has not been paid by the defendant as provided in said lease, and plaintiff has not received her share of said rentals. The plaintiff asserts the illegality of said loans and of certain mortgages on that part of the property owned by the involuntary plaintiffs, which mortgages do not purport to cover her interest in said property. The relief sought by the amended complaint is a judgment in favor of the plaintiff against the defendant for the rent due the plaintiff which has already accrued, a declaratory judgment that future rents shall be paid' to the plaintiff by the defendant in the amount of $125 per month, a judgment that the mortgages alleged to be invalid be so declared as against the title' of the plaintiff and her co-tenants, a judgment declaring the defendant is in default on the ground of nonpayment of rent, as required by the terms of the lease, and that the plaintiff and her co-tenants are entitled to immediate possession, and for such other relief as the Court may deem proper.
The involuntary plaintiffs named in the amended complaint all reside in the State of Pennsylvania, and are not subject to the jurisdiction of this Court in a personal action such as this. When a party is a co-tenant with others, or a member of a co-partnership, such as the lessor in this case, that person may not maintain an action against the party obligated to such co-tenants or co-partnership jointly without all parties so interested being joined in the action. That is one of the hazards that any one assumes when associated in such relationship. Here thé plaintiff is seeking relief which is in effect the dissolution, of the partnership in an action in which the other partners are not proper parties. It is asserted that the plaintiff has the right to bring such non-assenting parties in as involuntary plaintiffs under Rule 19(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. That rule
Of course, in an appropriate action with respect to the real property situate in the District of Columbia, there would be no question that jurisdiction in this Court would extend to the interests of the parties in the rem, but that is not the present action.
For the reasons stated, the motion to dismiss will be granted. Counsel will prepare and submit an appropriate order carrying this decision into effect.
On Motion for Rehearing
This Court entered an order on the 6th of May 1952, granting a motion of defendant to dismiss the amended complaint without prejudice to any action in which all necessary parties are properly before the Court. This was entered based upon the conclusions stated in a memorandum opinion filed in the case on April 30, 1952. The original complaint sought relief by the plaintiff from the defendant based upon her interests . in a certain lease, executed by certain parties, including the plaintiff, as co-partners, lessor, and the defendant as lessee. The amended complaint sought substantially the same relief, and the plaintiff’s co-partners were named as involuntary plaintiffs, it being stated that such co-partners would not join in the action as plaintiffs and were not within this jurisdiction, and could not, therefore, be brought in as defendants.
The action of the Court in dismissing the amended complaint was a determination that the relief sought could not-be granted in an action in which plaintiff’s co-partners were not properly before the Court. The plaintiff has now moved for a rehearing and vacation of that order of the Court, and in the alternative for permission to file a third amended complaint, in which the plaintiff seeks to recover damages from the defendant and her co-partners, who are named as defendants, arising out of an alleged conspiracy. Plaintiff’s motion and alternate motion are opposed by the 'defendant.
No showing has been made' which would justify the Court in vacating the order of dismissal, nor any reason stated why a rehearing should be granted looking to that action. That motion is denied.
The alternative motion for leave to file a third amended complaint requires a determination as to whether such proposed amendment, copy of which is attached to the motion, falls within the proper scope of an amendment. Under the Fed*
Counsel will prepare an appropriate order carrying these decisions into effect.