171 F.2d 610 | 2d Cir. | 1948
We shall assume, arguendo, the propriety, under Rule 12(e) as it then stood, of the requirements of the second provision of the order of June 23, 1947.
The defendant did not move to dismiss the action on the ground that plaintiffs had not amended to meet the new conditions imposed by the Portal-to-Portal Act of 1947, 29 U.S.C.A. § 251 et seq.,
We shall therefore' reverse and remand. As the proceedings will now he governed by amended Rule 12(e), which eliminates all right to a bill of particulars, the second provision of the order of November 23, 1947, will be a nullity. We think that any of the information of that kind, which defendant desires, it should obtain under other Rules authorizing discovery.
Reversed and remanded.
But see Barrett v. National Malleable & Steel Castings Co., D.C., 68 F.Supp. 410, 417; Walling v. Staffen, D.C., 5 F.R.D. 236, 240; Dykema v. Aluminum Co., D.C., 7 F.R.D. 230; Walling v. Bay State Dredging & Contracting Co., D.C., 3 F.R.D. 241, 242.
See Battaglia v. General Motors Corp., 2 Cir., 169 F.2d 254.
Any such amendment should now be permitted.
Cf. Galdi v. Jones, 2 Cir., 141 F.2d 984, 992.